Rasmi Ranjan Sahoo and Bibhu Prada Das Vs. Board of Secondary Education and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - but, as has been noticed by this court, in compelling circumstances and for good reasons this court can exercise its jurisdiction under article 226 of the constitution of india and still issue a direction for revaluation. that is clearly not the intent of the decision of the supreme court referred to in the above decision. in academic matters, the court cannot assume the role of an expert, especially when the experts in the field are in charge of the examinations, the valuation and the like. if there is failure in that machinery, the court can also direct the concerned to rectify those defects or remove those failures and ensure that proper bodies are constituted and proper and honest valuers are appointed.p.k. balasubramanyan, c.j.1. the petitioners had approached this court earlier with writ petitions complaining inter alia that their request for rechecking of addition of marks ' had not been complied with by the concerned authorities. this court directed the authorities to take up the exercise of rechecking of addition of marks and inform the petitioners of the result. this court also observed that if the petitioners feel aggrieved by the communication in that behalf, they may approach this court again. the authorities sent communication to the petitioners informing them that the committee constituted for the purpose had checked the addition of marks and there was no change. it is on receiving these communications that the petitioners have come up again to this court with these writ petitions.2. there is no dispute that the petitioners are not entitled to a revaluation of their answer papers as of right. but, as has been noticed by this court, in compelling circumstances and for good reasons this court can exercise its jurisdiction under article 226 of the constitution of india and still issue a direction for revaluation. for that, specific facts indicating irregularities or improprieties in valuation which would compel us to exercise our jurisdiction should be pleaded and a prima facie case is to be made out. the learned counsel for the petitioners submits that we must first direct production of the answer papers and thereafter see whether there are compelling reasons for ordering a revaluation. counsel seeks support for this submission from a decision of this court in arundhati sahoo v. board of secondary education, orissa and anr. : 1996 (i) o.l.r. 512. in that decision, after referring to the decision of the supreme court in council of higher secondary education, orissa v. jasodhara padhi (civil appeal no. 1362 of 1990 disposed of on 28.2.1990) and some of the other decisions of this court, the court asked itself the question whether there were any compelling circumstances justifying the production of the answer papers. their lordships found materials based on which they held that it was proper to direct the production of the answer papers. on their production, the manner of valuation was examined. thereafter the necessary directions were issued. in our view, in every case where the allegation is made that there is no proper valuation, the court is not expected to call upon the examining authorities to produce the answer papers and make a roving enquiry whether' there has been a proper valuation of the answer papers. that is clearly not the intent of the decision of the supreme court referred to in the above decision. in the case on hand, apart from the fact that the petitioners did not get such a relief in the earlier writ petitions they filed, there is the further fact that no compelling reasons are disclosed justifying our departure from the normal rule that the court should be slow to interfere in academic matters and that the court is not expected in the normal course to order a revaluation. only if the compelling circumstances are made out by a candidate, in a given case with reference to facts, that the court can in exercise of its extraordinary power, direct the production of the answer papers and then order a revaluation on the existence of clear irregularities in valuation. no doubt, the power of the court under article 226 of the constitution of india is very wide. but, it is also a power which is expected to be used with care and caution. in academic matters, the court cannot assume the role of an expert, especially when the experts in the field are in charge of the examinations, the valuation and the like. if there is failure in that machinery, the court can also direct the concerned to rectify those defects or remove those failures and ensure that proper bodies are constituted and proper and honest valuers are appointed. that cannot be achieved by ordering in every case a revaluation of the answer papers based on vague or general allegations. on the facts of these cases, we do not find any sufficient reason to order any revaluation or production of the answer papers. there is no circumstance made out which would shock the conscience of this court to act notwithstanding the absence of a specific provision in that behalf. in that situation, we decline to entertain these writ petitions. they are dismissed.