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TMI Blog1984 (7) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... who have secured the grade of marks anticipated by them, it also inevitably brings with it a long trail of disappointments and frustrations as the direct outcome of the non-fructuation of hopes and expectations harboured in the minds of the examinees based on the candidates own assessment of their performance and merit. Labouring under a feeling that there has not been a proper evaluation of their performance in the examination, they would naturally like to have a revaluation of the answer books and even a personal inspection and verification of the answer books for finding out whether there has been a proper evaluation of the answers to all questions, whether the totalling of marks has been correctly done and whether there has been any tampering with the seat numbers written on the answer books and the supplementary sheets. The question canvassed before us in these appeals is whether, under law a candidate has a right to demand such an inspection, verification and revaluation of answer books and whether the statutory regulations framed by the Maharashtra State Board of Secondary and Higher Secondary education governing the subject insofar as they categorically state that there sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of Regulation 14 to be void and allowed the first group of Writ Petitions by directing the Board to allow inspection of the answer books asked for by the petitioners and to take consequential action under clauses (4) to (6) of Regulation 104 when found necessary. The main judgment in the second group of Writ Petitions was delivered by Mohta, J, holding that the provision contained in clause (1) of Regulation 104 that no revaluation of the answer books or supplement shall be done is ultra vires the regulation making power conferred by Section 36 and is also illegal and void on the ground of its being manifestly unreasonable. In the view of the learned Judge, inspection and disclosure will serve no purpose in case the further right of revaluation was denied and inasmuch as the right to disclosure and inspection had been recognised by the judgment just then delivered in the first group of Writ Petitions, the conclusion had necessarily to follow that the Board was obliged to permit revaluation as well. On this reasoning, Regulation 104 (i) insofar as it prohibits revaluation was declared void and a direction was issued to the Board that in the case of those examinees who had ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs the Divisional Board to appoint paper setters, translators, examiners, moderators, supervisors and other necessary personnel for conducting the final examination in the area of its jurisdiction, for evaluation of candidates' performance and for compiling and release of the results in accordance with such instructions as the State Board may from time to time issue. Under clause (h) it is within the power of the Divisional Board to admit candidates for the final examination according to the regulations made by the State Board in this behalf. Clause (m) vests the Divisional Board with power to generally evaluate the performance of students in all examinations in secondary schools and junior colleges including the final examination and make necessary recommendations to the State Board in that behalf. Section 36 (1) of the Act empowers the State Board to make 'regulations' for the purpose of carrying into effect the provisions of the Act. Sub-section (2) states that, without prejudice to generality of the foregoing power, such regulations may provide for any of the matters enumerated in clauses (a) to (n) thereof. Clauses (c), (d), (f) and (g) which alone are releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Secondary School Certificate examination and Higher Secondary Certificate examination held in October, 1977 and thereafter. The regulations consist of 3 parts. Part I contains the provisions common to Secondary School Certificate (S.S.C.) and Higher Secondary Certificate (H.S.C.) examinations; Part II contains regulations pertaining to S.S.C. examination only and Part III those pertaining exclusively to the Higher Secondary Certificate examinations Regulation 104 with which we are concerned occurs in Part III and clauses (1) to (3) thereof which alone are relevant for the purposes of this case require to be reproduced here: 104. VERIFICATION OF MARKS OBTAINED BY A CANDIDATE IN A SUBJECT. (1) Any candidate who has appeared at the Higher Secondary Certificate examination may apply to the Divisional Secretary for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer-book and whether the supplements attached to the answer book m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n making process which brings about adverse civil consequences to the examinees in involved. The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer-books and determining whether there has been a proper and fair valuation of the answers by the examiners As succinctly put by Mathew, J in his judgment in the Union of India v. M.L. Kapur, it is not expedient to extend the horizon of natural justice involved in the Audi alteram partem rule to the twilight zone of mere expectations, however great they might be . The challenge levelled against the validity of clause (3) of Regulation 104 based on the plea of violation of natural justice was, therefore, rightly rejected by the High Court. The High Court in its judgment in the first group of cases then went on to consider the next two grounds of challenge put forward by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational acts within the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation of candidates, performances and for compiling and release of results in accordance with such instructions as the State Board may from time to time issue. It is thus clear that the conduct of the final examination and the evaluation of the candidates' performance and the compiling and release of results are all to be carried out by the divisional Board in accordance with the instructions to be issued by the State Board from time to time. It is, therefore, manifest that a duty is cast on the State Board to formulate its policy as to how the examinations are to be conducted, how the evaluation of the performances of the candidates is to be made and by what procedure the results are to be finalised, compiled and released. In our opinion, it was perfectly within the competence of the Board, rather it was its plain duty, to apply its mind and decide as a matter of policy relating to the conduct of the examination as to whether disclosure and inspection of the answer books should be allowed to the candidates, whether and to what extent verification of the result I should be permitted after the results have already been announced and whether any right to claim revaluation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. This enables him to verify if his suspicions are ill or well founded. Existence of some over-riding factors alone can justify denial of his claim. The High Court concluded the discussion by stating : Such confidentiality cannot be found to be serving any purpose of the Act merely because it was acquiesced in the past or accepted without challenge. According to Mr. Setalvad, authority to treat these documents confidential is implicit in the very power to hold the examination itself, it being necessary to secure effective achievement of the process. This is too broad a statement to admit of any scrutiny. No such power can, however, be implied unless its indispensibility of treating the question papers and names of the question setters and examiners confidential, up to a certain stage can easily be appreciated. Their premature disclosure or exposure may defeat the purpose of examinations and make a mockery of its very conception. It is, however difficult to see any purpose of continuing to keep them confidential at any rate after the declaration of the results. In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. The Court ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes of the Statute by framing rules/regulations which are in the nature of subordinate legislation. Sec. 3(39) of the Bombay General Clauses Act, 1904, which defines the 'rule' states: Rule shall mean a rule made in exercise of the power under any enactment and shall include any regulation made under a rule or under any enactment. It is important to notice that a distinct power of making bye-laws has been conferred by the Act on the State Board under Section 38. The legislature has thus maintained in the Statute in question a clear distinction between 'bye-laws' and 'regulations'. The bye- laws to be framed under Section 38 are to relate only to procedural matters concerning the holding of meetings of State Board, Divisional Boards and the Committee, the quorum required, etc More important matters affecting the rights of parties and laying down the manner in which the provisions of the Act are to be carried into effect have been reserved to be provided for by regulations made under Section 36. The legislature, while enacting Sections 36 and 38, must be assumed to have been fully aware of the niceties of the legal position governing the distinction betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations shall be made by the State Government and they shall continue to be in force until the new regulations are made by the Board under section 36. There is also the further safeguard provided in sub-section (3) of Section 36 that no regulation made under that Section shall have the effect until the same has been sanctioned by the State Government. Even more significant is the provision contained in sub-section (2) of Section 37 conferring a concurrent power on the State Government to make any new regulations in respect of any of the matters referred to in Section 36 and thereby modify or repeal either wholly or in part the regulations made by the State Board. The said sub-section is in the following terms : 37. (2) If it shall at any time appear to the State Government that it is expedient to make any new regulations in respect of any of the matters referred to in Section 36 or that any regulations referred to in sub-section (i) or made by the State Board under section 36 need to be modified or repealed, either wholly or in part, the State Government may after consultation with the State Board and by notification in the official Gazette, make such regulations, or modify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictions or limitations imposed by the Constitution. We have already held that the High Court was in error in holding that the provisions of clause (3) of Regulation 104 do not serve the purpose of carrying into effect the provisions of the Act and are ultra vires on the ground of their being in excess of the regulation-making power conferred by Section 36. The Writ Petitioners had no case before the High Court that the impugned clauses of the regulations were liable to be invalidated on the application of second and third tests. Besides the contention that the impugned regulations were ultra vires the power conferred under Section 36(1), the only other point urged was that they were in the nature of bye-laws and were liable to be struck down on the ground of unreasonableness. In view of the conclusion expressed by us that the regulations cannot be regarded as mere bye-laws, the contention raised on alleged unreasonableness does not really call for consideration. However, since the High Court has discussed the said aspect at great length in its two judgments and fairly elaborate arguments were also advanced before us by the learned advocates appearing on both sides, we think it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The malpractices involved in passing off papers written by one as that of others and manipulations and tampering and the frauds involved therein, cannot be effectively detected and remedied unless, among others, the examinee himself is enabled to inspect the answer papers. This is indispensible even for verifying the claim as to the presence or absence of any examinee. The right of inspection thus is the integral part of right of verification and obligation to trace and correct the errors as implied in Regulations 102 and 104. Doctrine of implied power and obligation and right and duties make up for the absence of positive provisions. 47. It is true that such right of inspection does not seem to have been recognised under any system of examination in India and its recognition is bound to unsettle the age old practice followed and notions entertained. The decision is bound to have effects on examination in several other fields, apart from the one contemplated by the Board or Universities. Consequences on administration also are bound to be far-reaching, necessitating setting up some additional machinery, and may prove to be time consuming and expensive. We, however, find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure or inspection of the answer book or further documents as these are to be treated by the Divisional Boards as most confidential. It is obvious that clauses (1) and (3) have to be read together and not in isolation from each other as has apparently been done by the High Court. The right of verification conferred by clause (1) is subject to the limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and the further restriction imposed by clause (3), prohibiting disclosure or inspection of the answer books. The High Court seems to have construed the last portion of clause (3) as implying that the confidentiality of the answer book is to be declared by some order of the Divisional Board and it has proceeded to hold that since no such order was brought to the notice of the Court there was no basis for treating the answer books as confidential. In our opinion, this interpretation of the concluding words of clause (3) is incorrect. What is laid down therein is that the answer books and other documents are to be treated by the Divisional Boards as most confidential. In other words this clause of the regulation contains a mandate to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to administer them that they will be reasonable administered. The learned Chief Justice said further that there may be 'cases in which it would be the duty of the court to condemn by-laws made under such authority as these were made (by a county council) as invalid be cause unreasonable. But unreasonable in what sense ? If for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' But it is in this and this sense only, as I conceive, that the question of reasonableness can unreasonableness can properly be regarded. A bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient or because it is not accompanied by an exception which some judges may think ought to be there'. We may also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the enormity of the task of evaluation discharged by the Board through the examiners appointed by it, it is really a matter for satisfaction that proved instances of errors and irregularities have been so few as to be counted on one's fingers. Instead of viewing the matter from this correct perspective, we regret to find the fact that the High Court laid undue and exaggerated stress on some stray instance and made it a basis for reaching the conclusion that reasonable fair play to the candidates can be assured only if the right of disclosure and personal inspection is allowed to the candidates as part of the process of verification. This approach does not appeal to us as legally correct or soud. We do not find it possible to uphold the view expressed by the High Court that clause (3) of Regulation 104 which disentitles the examinees to claim disclosure and inspection of the answer books and declares those documents to be confidential is defeasive of the corrective powers of the Board under Regulations 102 and 104 and the right of verification under Regulation 104 (1) as also destructive of the confidence of public in the efficacy of the system. The reasons which prompted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate judgment of the Division Bench delivered by Mohta, J. On perusal of the judgment, it will be seen that the entire reasoning therein is based on the conclusion recorded in the judgment of Deshpande, J delivered in the first group of cases, that the provision contained in clauses (1) and (3) of Regulation 104 prohibiting the disclosure and inspection of answer books is liable to be struck down on the ground of unreasonableness as well as on the ground of its being ultra vires the scope of the rule making power conferred by Section 36 (1) of the Act. Making this as the starting point of his reasoning, Mohta, J has proceeded to observe that the logical end of permitting inspection and disclosure of answer books and other documents is to permit revaluation and that no useful purpose will be served by having inspection and disclosure in case further right of revaluation is denied . Based on such an approach, the learned Judge has proceeded to state that there was no justification whatsoever to restrict the obligation of correcting of mistake only to verification and exclude revaluation from the operation of Regulation 102. Accordingly, it was held that clauses (1) and (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prohibition on revaluation is fallacious and unsound. While discussing the scope of the said regulation, we have pointed out that its purpose and effect is only to confer a suo moto power on the Board to correct errors in cases where irregularities like malpractices, misconduct, fraud, etc. are found out and it does not confer any right on the examinees to demand any correction of the results. In the scheme of the regulations after the publication of the results, the only right which the examinees have in relation to this matter is to ask for a verification of the results under clause (1) of Regulation 104 and the scope of such verification is subject to the limitations imposed in the said clause as well as in clause (3) of the very same regulation. We are unable to agree with the further reason stated by the High Court that since every student has a right to receive fair play in examination and get appropriate marks matching his performance it will be a denial of the right to such fair play if there is to be a prohibition on the right to demand revaluation and unless a right to revaluation is recognised and permitted there is an infringement of rules of fair play. Wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswer book. After the return of all the answer books to the Deputy Chief Conductor, a tally is taken of the answer looks including supplements used by the candidates by the Stationery Supervisor who is posted by the Board at each sub-centre. This enables the supervisory staff at a sub-centre to verify and ensure that all answer books and supplements issued to the candidates have been turned in and received by the supervisory staff. At this stage of checking and double-checking, if any seat number has been duplicated on the answer books by mistake or by way of deliberate malpractice it can be easily detected and corrective measures taken by the Deputy Chief Conductor or the Chief Conductor. The answer books are then sent by the Deputy Chief Conductor to the Chief Conductor in charge of the main centre. He sorts out the answer books according to the instructions issued by the Board and sends them to the examiners whose names had been furnished in advance except in the case of the science subjects, namely, mathematics and statistics, physics, chemistry and biology . The answer books in the science subjects are forwarded by the Chief Conductor under proper guard to camps in Pune alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answer papers is to be done in the presence of the candidates, the process is bound to be extremely time consuming and if such a request is made by even about ten per cent of the candidates who will be 30,000 in number, it would involve several thousands of man hours and is bound to throw the entire system out of gear. Further, it is in the public interest that the results Public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking, etc of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process. As pointed out by a Constitution Bench of this Court in Fatehchand Himmatlal and Ors. v. State of Maharashtra, etc. the test of reasonableness is not applied in vacuum but in the contest of life's realities , 1977 (2) SCR 828. If the principle laid down by the High Court is to be regarded as correct, its applicability cannot be restricted to examinations conducted by School Educational Boards al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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