Vice-chancellor, Veer Bahadur Singh Purvanchal University and ors. Vs. Smt. Shashikala and anr. - Court Judgment

R.K. Agrawal and S.P. Mehrotra, JJ.

1. The present special appeal has been filed against the judgment and order dated 20.11.2008, passed by the learned single Judge whereby the learned single Judge has, inter alia, given the following interim directions:

Considering the facts and circumstances of this case as mentioned hereinabove, it is directed that the respondent-University shall itself have the answer copy of 'Educational Administration and Management' paper of B. Ed. Examination-2007 of the petitioner revaluated through an expert examiner, who may be the Head of the concerned department, within three weeks from today and submit a report, alongwith the marks awarded to the petitioner after revaluation.

2. It appears that the petitioner-respondent No. 1 appeared as regular student in B.Ed. Examination, 2007 conducted by Veer Bahadur Singh Purvanchal University, Jaunpur. In the answer book of the petitioner-respondent No. 1 in respect of the 7th paper, namely, 'Educational Administration and Management', she was awarded 29 marks out of 100 marks. The result of the petitioner-respondent No. 1 was that she failed in the said B. Ed. Examination, 2007.

3. The petitioner-respondent No. 1 filed Civil Misc. Writ Petition No. 56223 of 2008, before this Court, inter alia, stating that she was awarded satisfactory marks in all the papers except the 7th paper, namely, 'Educational Administration and Management' in the said B. Ed. Examination, 2007. It was, inter alia, prayed in the said writ petition that a writ, order or direction in the nature of mandamus be issued directing the respondents in the said writ petition (respondents-appellants in the present special appeal) to recheck/re-examine the answer book of the petitioner-respondent No. 1 in respect of the 7th paper namely, 'Educational Administration and Management' in the said B. Ed. Examination, 2007.

4. It appears that pursuant to an order dated 3.11.2008, passed by the learned single Judge in the said writ petition, the respondents-appellants produced before the learned single Judge the answer book of the petitioner-respondent No. 1 in respect of the aforesaid 7th paper, namely, 'Educational Administration and Management' in B. Ed. Examination, 2007.

5. After perusing the aforesaid answer book of the petitioner-respondent No. 1 and noticing the submissions made by the learned Counsel for the parties, the learned single Judge by the judgment and order dated 20.11.2008, inter alia, gave interim directions as quoted above. The learned Judge placed reliance on a decision of the Apex Court in Manish Ujwal and Ors. v. Maharishi Dayanand Saraswati University and Ors. : (2005)13SCC744 .

6. Against the said judgment and order dated 20.11.2008, the respondents-appellants have filed the present special appeal.

7. We have heard Shri Anil Tiwari, learned Counsel for the respondents-appellants, Shri I. S. Tomar, learned Counsel for the petitioner-respondent No. 1 and the learned standing counsel appearing for the respondent No. 2, and perused the record.

8. The learned Counsel for the parties are agreed that the special appeal may be finally decided at this stage itself.

9. It is submitted by Shri Anil Tiwari, learned Counsel for the respondents-appellants that there is no provision for revaluation of the answer book in the U.P. State Universities Act, 1973 nor is there any such provision in the first statutes or the ordinances applicable to Veer Bahadur Singh Purvanchal University, Jaunpur. It is further submitted that in case any material or glaring defect is found by this Court in the evaluation of the answer book then in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, it may direct for revaluation. However, the submission proceeds, such relief may be granted at the final stage and not at an interim stage. It is submitted that the interim directions given by the learned single Judge have resulted in virtually allowing the writ petition itself, which is not legally permissible. Shri Anil Tiwari has placed reliance on a judgment dated 8.12.2008, passed by a Division Bench of this Court in Special Appeal No. 1747 of 2008, Veer Bahadur Singh Purvanchal University and Ors. v. Km. Amita Maurya.

10. In reply, Shri I. S. Tomar, learned Counsel for the petitioner-respondent No. 1 submits that the answer book of the petitioner-respondent No. 1 was perused by the learned single Judge and having been satisfied in regard to glaring and material errors in the evaluation of the answers in the said answer book, the learned single Judge directed for revaluation of the answer book and submission of report to the Court so that final direction could be given in the light of such report. Shri Tomar has placed reliance On the decision of the Apex Court in Manish Ujwal case (supra).

11. We have considered the submissions made by the learned Counsel for the parties.

12. Normally, in the absence of any provision for revaluation of the answer books in the relevant Rules etc., the Court will not give any direction for revaluation of the answer books. Reference in this regard may be made to the following decisions:

1. Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarsheth etc. : [1985]1SCR29 ;

2. Kshitij Singh v. Joint Secretary Central Board of Secondary Education, Allahabad and Ors. 2001 (3) AWC 2191 (paragraph 7);

3. Anuj Gupta (Minor) v. Central Board of Secondary Education, Delhi through its Secretary and Anr. (2003) 1 UPLBEC 44 : 2002 (5) AWC 4059 (paragraphs 9, 10, 11, 12 and 13).

13. However, there may be cases where glaring errors are found in the answer book indicating that the examiner has not at all applied his mind while evaluating the answer book, i.e., there has been total non-application of mind while evaluating the answer book. Such cases will be very rare and exceptional. In such cases, the Court may direct for revaluation of the answer book of a candidate. This is because if the evaluation is done by the examiner without application of his mind and glaring errors are found in the answer book making it evident that the examiner has not at all applied his mind while evaluating the answer book, i.e., there has been total non-application of mind while evaluating the answer book, then such a case will be treated to be a case of non-evaluation of the answer book and direction for revaluation will be deemed to be direction for evaluation of the answer book, and not its revaluation.

14. Even otherwise, in case this Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India finds glaring and material errors in the evaluation of answer book of a candidate, then this Court in order to do substantial justice may give direction for revaluation of such answer book. Reference in this regard may be made to the decision of the Apex Court in Manish Ujwal case (supra).

15. However, the question arises as to whether such a direction for revaluation of the answer book may be given at an interim stage or such a direction should be given when the writ petition is being finally decided. We are of the opinion that such a direction for revaluation of the answer book may be given while finally deciding the writ petition, and not at an interim stage, as any such direction at an interim stage would amount to virtually allowing the writ petition by an interim order. It is well settled that the Court should not grant interim relief which amounts to final relief. Reference in this regard may be made to the following decisions:

1. Public Services Tribunal Bar Association v. State of U.P. and Anr. AIR 2003 SC 115 : 2003 (2) AWC 968 (SC) (paragraphs 40 and 42);

2. Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai : AIR2004All107 .

16. In the present case, as noted above, the petitioner-respondent No. 1 in her writ petition has, inter alia, prayed for issuance of a writ, order or direction in the nature of mandamus directing the respondents-appellants to re-check/re-examine the answer book of the petitioner-respondent No. 1 in respect of the aforesaid paper No. 7, namely, 'Educational Administration and Management' in B. Ed. Examination, 2007. This relief sought by the petitioner-respondent No. 1 as the final relief in the writ petition cannot be granted at an interim stage.

17. The interim directions given by the learned single Judge in the judgment and order dated 20.11.2008 have virtually granted the final relief claimed by the petitioner-respondent No. 1 in the writ petition.

18. We are of the view that the learned single Judge was not correct in passing the said judgment and order dated 20.11.2008 giving the above-quoted interim directions.

19. In Special Appeal No. 1747 of 2008, Veer Bahadur Singh Purvanchal University and Ors. v. Km. Amita Maurya, decided on 8.12.2008, similar controversy was involved. A Division Bench of this Court held as under:

In view of the fact that no revaluation is provided under the State University Act or the first Statutes of the University, the order for revaluation cannot be passed except in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India and that to when the Court is satisfied that in the peculiar facts of the case such an exercise is necessary in the interest of substantial justice. The order to that effect can only be passed by the writ court while it finally decides the writ petition inasmuch as any direction to get the answer sheet re-evaluated and to submit a report at the interim stage virtually amounts granting the final relief to the writ petitioner. It is settled law that no interim relief can be granted by way of final relief which may or may not be granted by the Court as final relief.

In view of the aforesaid, we feel that learned single Judge was not justified in requiring the University to get the answer sheet of the petitioner re-checked and to submit the result so obtained before the Court by the next date.

(Emphasis supplied)

20. We respectfully follow the propositions laid down in the above decision.

21. In view of the above, we allow the special appeal and set aside the Judgment and order dated 20.11.2008, passed by the learned single Judge. The learned signal Judge may proceed to decide the writ petition on merits in accordance with law. The writ petition will be listed before the appropriate Bench after three weeks. The respondents-appellants may file their counter-affidavit in the writ petition within two weeks. The petitioner-respondent No. 1 may file rejoinder-affidavit within a week thereafter.

22. Before parting with the case, we may mention that the answer book of the petitioner-respondent No. 1 was produced before us for perusal, however, as the matter will be decided on merits by the learned single Judge we are not expressing any opinion on merits of the case.

23. We order accordingly.