1. The petitioner, by way of this petition under Article 226 of the Constitution of India, has approached this Court with following prayers:
(A) YOUR LORDSHIP may be pleased to admit this present petition.
(B) YOUR LORDSHIP may be pleased to issue a writ of mandamus or any other writ or direction and further be pleased to direct the Respondent University to provide detailed reply to the representation made by the petitioner on 29.09.2012 and further be pleased to provide the petitioner with actual marks as they stand corrected subsequent to the re-assessment.
(C) YOUR LORDSHIP may be pleased to issue a writ of mandamus, or any other appropriate writ or order or direction and be further pleased to direct the respondent University disclose and give effect to the correct marks of the petitioner that she has receive after re-assessment.
(CC) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other writ or direction and further be pleased to hold and declare that new rules came into existence on 18.08.2012 are not binding upon the petitioner since the petitioner s reassessment application is governed by the old rules and interpretation thereof as given by Judgment and order of this Hon ble High Court rendered in Special Civil Application No. 6689 of 2011 and as confirmed in Letters Patent Appeal No. 901 of 2011.
(CD) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other writ or direction and further be pleased to hold and declare that new rules have not come into force effectively since the respondent University has not followed mandatory procedure prescribed in the Gujarat University Act, 1949.
(CE) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other writ or direction and further be pleased to hold and declare without prejudice to prayer at para 7(CC) that new rules that are sought to be introduced on 18.08.2012 are violative of Article 14 of the Constitution of India being arbitrary and discriminatory.
(CF) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other writ or direction, to direct the respondent university to produce the answer scripts of the petitioner together with any model answer sheet or any minutes or decision or affidavit of chief examiner regarding modus or methodology to be adopted while marking.
(D) YOUR LORDSHIP may be pleased to grant any such other and further relief as may be deemed just and proper in favour of the petitioner.
2. Thus the petitioner has essentially challenged the omission on the part of the university in not effecting the change in the result and reflecting the marks as a result of reassessment on the ground of non-applicability of old rules.
3. The facts in brief leading to filing this petition deserves to be set-out as under:-
4. The petitioner, an external student pursuing her course for degree of Masters in Arts in Hindi subject took examination of M.A. Part-II consisting of total four papers and was expecting good scoring of marks. However, when results were declared, she was not satisfied with the score of marks and hence applied for reassessment on 16/07/2012 under the prevalent rules providing for reassessment in such cases. The respondent University sent communication dated 18/09/2012 informing the petitioner that no change was warranted on account of reassessment and her result would remain same. The petitioner had positive knowledge qua increase in mark on account of reassessment, which if reflected in the mark-sheet, than it would have enhanced her total marks by 13 and would have brighten her prospect of future career. The petitioner s representations made on this behalf, were not replied, hence present petition. During the pendency of the petition, the amendments were brought about as it came to the knowledge of the petitioner that after the application for reassessment was made i.e. after 16/07/2012, the rule for reassessment were changed and the denial to bring about change in the marks on account of reassessment, was based upon the new set of rules for reassessment. The new rules came into existence from 18th August, 2012.
5. Learned advocate for the petitioner, vehemently contended that the petitioner s case could not have been considered under the purview and scope of new rules as the new rules cannot be pressed into service for the application, which was made prior to new rules came into force.
6. Learned advocate for the petitioner further contended that the original rule as it then stood was subject matter of scrutiny and examination before this Court in S.C.A. No.6689 of 2011 and ultimately Full Bench in L.P.A. No.901 of 2011, interpreted in favour of examinee rejecting the contention of the University that change in marks on reassessment was to be effected only if it had effect of enhancing total marks by 15% or more. Learned counsel for the petitioner heavily relied upon the observations made by the Full Bench in paras-28, 29 and 35 and submitted that in light thereof the reassessment result was not to be made dependent upon sizable difference as it is set-out on account of subsequent rules. The elaborate submissions with regard to the power of university, powers of executive council are discussed. The counsel for the petitioner also relied upon the decision of the Supreme Court in case of Shyam Sundar and others V/s. Ram Kumar and another, reported in A.I.R., 2001 Supreme Court 2472, to support his submission that the rules in question cannot be made applicable retrospectively. Counsel for the petitioner has further placed reliance upon the observations of the Apex Court in para-5 in case of Sri Vijayalakshmi Rice Mills V/s. State of Andhra Pradesh, reported in A.I.R. 1976, Supreme Court 1471, para-5 reads as under :-.
5. Mr.Nariman appearing on behalf of the appellants has laid great emphasis on the word substituted occurring in clause 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 and has urged that the claim of the appellants cannot be validly ignored. Elaborating his submission, counsel has contended that as the prices fixed by the Government are meant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, regardless of the dates on which the supplies were made. We cannot accede to this contention. It is no doubt true that the literal meaning of the word substitute is to replace but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force.
On the same analogy the contention is raised to support the submission that once the examination was over, the results were out, the reassessment rules, which were not changed during that time, could have been applied and on account of advent of new rule, the benefit of old rules in terms of increase in marks on account of reassessment could not be withheld. Learned counsel for the petitioner thereafter, relied upon the decision of Apex Court in the case of State of Madhya Pradesh V/s. Yogendra Shrivastava, reported in (2010) 12 Supreme Court Cases 538, and contended that a law clearly prescribes that the rights and benefits accrued or vested under the un-amended rule or law cannot be taken away or withdrawn on account of retrospective effect of the amendment of rule. Learned counsel for the petitioner thereafter, relied upon the decision of Apex Court in case of Vice Chancellor, M.D.University, Rohtak V/s. Jahan Singh, reported in A.I.R. 2007 SC supplementary 182, which is also reported in 2007 (5) SCC 77.
This decision is also in support of the contention that the delegated authority cannot, make rules with retrospective effect in exercise of delegated powers. The decision of Kerala High Court is relied upon in case of University of Kerala And Ors. V/s. Alex Saji And Ors decided on 26 th November, 1996 and having equivalence citation - AIR 1997 Kerala 259. The emphasis was laid on paragraph-9.
7. As against this learned counsel for the University contended that the factum of reassessment alone should govern the consideration as the reassessment as such is not a matter of right. The framing of rules of reassessment is within the domain of policy making and it largely dependent upon the factors like examination, numbers of examinees, numbers of reassessment application and the balance between examinees seeking reassessment and not seeking reassessment. The authorities namely Academic Council and Executive Council, which are the responsible bodies for taking policy decision qua such request or prayer for reassessment, take the decision and when it was clearly decided that if on account of reassessment undertaken the difference in mark is not sizable then, the change is not to be effected than it cannot be faulted with. In fact the new rule is the logical rule which governs the process of reassessment. The decision of the Full Court cited herein above also does not preclude the competent authority from bringing in necessary amendment in rules governing the reassessment procedure. The issue of assessment of the paper is essentially dependent upon the examiner and the subject. In a given subject the change of examiner would not make much difference if it is a subject like mathematics and/or any other subject alike. But, in a case like other subject the possibility of different approach in assessing cannot be ruled out and in such eventuality if the small difference in marks on account of such different approach in assessing resulting into slight increase in mark cannot be given effect. The policy is sought to be assailed on various grounds including that of lack of power to frame the regulation and it is said to be retrospective though whether it is retrospective or not is dependent upon the approach and how one looks at incident. Though the application for reassessment was made prior to advent of new rule, the actual reassessment was done after the advent of new rules hence the result of reassessment should be governed only by the new rules and such an exercise cannot be called retrospective effect as sought to be canvassed by the petitioner.
8. Learned counsel for the University further submitted that the submission qua lack of power would in no way help the petitioner s case as even the earlier rule also were framed in the same way and if that argument is taken to its logical conclusion, then it should not help in any manner the case of the petitioner for pressing into service the old rules as such the same would also hit by the same lacunae.
9. Learned counsel for the University placed reliance upon the decision in case of Ahmedabad Kelavni Trust V/s. State of Gujarat reported in 1978 GLR 671. Counsel for the University has further placed reliance upon the unreported decision in case of Shri S.R.Bhatt, Principal, B.D. Arts College V/s. The Gujarat University in S.C.A.No.481 of 1978 decided on 30/03/1978 (Coram : S.H.Sheth, as he then was J.) in support of the point that for bringing about the action of such a nature, it is not always required to be through ordinance, the following observations are pressed into service :-
Therefore, what can be done by an Ordinance and what can be done otherwise than by an Ordinance have been clearly laid down by the Legislature in the Act itself. Bearing this distinction in mind, I am of the opinion that since Sec.20 does not lay down that matters specified therein can be provided for only by Ordinances, it was not necessary for the University to make an Ordinance to lay down superannuation age for the members of the teaching staff of affiliated Colleges. In that view of the matter, it is immaterial whether under Sec.20 (1) (xxxix) of the Act the University laid down this condition of service for the teachers in affiliated Colleges either by Resolution or in any other manner. The view which I am taking receives some support from a Division Bench decision of this Court in Special Civil Application No.955 of 1977 decided by Mr.Justice D.A.Desai and Mr.Justice A.M.Ahmadi on 26th/27th September, 1977. It is significant to note that so far as Sec.30 is concerned, Mr.Daru has relied upon clause (xi) therein which is the residuary clause not referring to any specific matter as against the specific provision made in clause (xxxix) of sub-sec. (1) of Sec.20 of the Act.
10. Learned counsel for the University further relied upon the following decisions.
A.I.R. 1996 Supreme Court 3461 in the case of P.T.R. Exports (Madras) Pvt. Ltd. V/s. Union of India.
(2)1999 (1) SCC 475, in the case of V.Karnal Durai V/s. District Collector, Tuticorin.
(3)2004 (4) SCC 146 in the case of Chief Of Marketing (Marketing Division) Coal India Limited V/s. Mewat Chemicals And Tiny S.S.I. Coal Pulverising Unit.
(4)1990 (2) GLR page 1066, in the case of Prashant Pravinbhai Kanabar V/s. Gujarat University & Another.
(5)A.I.R.
1984 SC 1415, in the case of Punjab University V/s. Subash Chander and another.
(6)2009 (3) G.L.H. 601, Gujarat University V/s. Arun Sushilkumar Bhakkad and Anr.
(7)(2004) 1 Supreme Court Cases 663, in the case of Howrah Municipal Corporation V/s. Ganges Rope Co. Ltd., and others.
(8)A.I.R.
1981 Supreme Court 711, in the case of State of Tamil Nadu, Appellant V/s. M/s. Hind Stone etc. (9)L.P.A.
No.1824 of 1999 in S.C.A. No.3448 of 1998.
The Court has heard learned counsels of the parties. The Court is of the considered view that facts of the present case are very vital and those undisputed factual aspects if are sufficient to decide the controversy than court need not delve into other contentions as the same would be merely an unwarranted academic exercise not required to be undertaken at this stage or in this case.
The University authority and examinees have to act and react strictly in accordance with principles of the rule of law which unequivocally dictate that transparency and fair play are buzzwords and governing factors of all legal relationships. In my view the incident of filling in the examination form, receiving the admission card, conducting the examination, appearing in the examination, declaration of results and issuance of mark-sheets, dealing with the reassessment applications wherever such reassessment is provided, procedure for reassessment and declaration of its outcome are all part and parcel of one and single event called Conducting of examination and declaration of results and therefore it should be governed by the set of rules prevailing when the examinee s candidature in for of examination form with fees was accepted by the University. Both the parties were to act in accordance with the set of rules which were in force at the time of filling and accepting of examination form. Both of them are supposed to reasonably know their respective rights and obligations qua each others. The change in rules if not justified on account of any reasonable reason and which has larger effect on the existing rights of examinee than the same cannot be said to be so proper and just as to govern the parties.
13. The indisputed fact go to show that when the petitioner filled in her examination for, when she was issued admission card , when the examination was conducted , when she appeared in the examination , when the results were declared and when she applied for reassessment on 26.07.2012 the rules for reassessment were not changed and the rule as then existed clearly provided that the new result on account of reassessment will be considered as final result and it shall be binding the student. The Reassessment Form filled in by the applicant and duly accepted by the University also contained rules for reassessment entitled as Rules for Reassessment.
The clause 7 could be translated as under New result on account of reassessment, shall be considered as final result and that shall be binding upon the student The rule or clause 9 thereof could be translated as under 9. On reassessing the answer-sheets, if 15 % difference in total marks in a subject is noticed than such answer-sheet will be once again reassessed and out of these resultant marks, the one which is nearer to the marks of the original result would be considered as final it shall be counted Thus rule or clause 7 and 9 have two different fields of operations. It seems these two clauses printed in the reassessment form had its origin in the rule 9 and 11 which have been reproduced by the full bench in its judgment in L.P.A. 901 OF 2011 IN SCA 6689 OF 2011 on page 12 in paragraph 24 of the judgment.
l The plain reading of these two rules clearly indicated that both the rules had different set of eventualities to govern. The petitioner had applied for reassessment on 26..07.2012 and till then the rules were not amended or changed hence the rules and its interpretation by this court in SCA 6689 of 2011 and LPA 901 of 2011 shall be binding on all the parties i.e. examinees like the petitioner and University.
The new Rule 4 brought into effect by the University from 18.08.2012 as reproduced on page no.32 of the compilation on page 26 the University has reproduced translation which reads as under (8) In the event of re-assessment of an answer-paper , only if there is a difference of 15 % or more of total marks of the respective paper between the original assessment and first re-assessment , a second re-assessment of the answer-paper will be held.
In such cases, out of the first re-assessment and the second re-assessment, whichever marks are nearer to the originally awarded marks , will be considered final and the effect of the same will be given in the result.
In those cases where there is no difference of minimum 15% of total marks of the respective papers between the original assessment and first re-assessment , no second re-assessment will be held, and reply stating There is no change in the result by reassessment will be conveyed to the candidate Thus new rule has effect of not changing the original marks if the difference between original marks and first re-assessment is less than 15% in marks.
This Court, as stated herein above need not go into the justification, desirability or propriety of this amendment as it is not required at this stage. But fact remains to be noted that the rules existed when the petitioner filled her form did provide for effecting change in marks on re-assessment even if the difference between the two set of marks, originally obtained marks and marks on first reassessment, may not be as big as 15 %.
This Court is of the view that the petitioner s application dated 26.07.2012 for re-assessment cannot be governed by the new and amended rules of re-assessment only on the ground that when actual re-assessment done the new rule had come into being. The change in rules amounted to changing the rules of the game after it started which is not permissible in law as apex court has time and again observed in many cases. Once the recruitment process has started even the High Court cannot invoke residuary clause powers under Rule 8(6) as it would amount to changing the rules of game after starting of game as observed by the Apex Court in case. The Apex Court has held in case of K.Manjushree Vs. State of Andhrapradesh reported AIR 2008 SC 1470 that once the recruitment process starts no deviation, of subtraction or addition in any form is permissible and it has been once again reiterated by Apex Court in case of Hemani Malhotra Vs. High Court of Delhi reported in AIR 2008 SC 2103 The relevant observations of the Court are extracted hereunder The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K. Manjusree against the State of A. P. and Anr. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms :-
"The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
9. From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for viva voce. Therefore, prescribing minimum marks for viva voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce, test was illegal.
The contention raised by the learned Counsel for the respondent that the decision rendered in K. Manjusree (supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H. Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K. Manjusree (supra) the court noticed the decisions in (1) P. K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K. Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision. (Emphasis supplied).
The aforesaid decisions though rendered in the cases of recruitment process but the principle underlying remains the same that once the event starts no change in rules are permissible. The applicability of new rule amounted to change without it s knowledge to the applicant other side.
The change in rule regarding reassessment without its due publication to all the concerned, and especially to the examinees would amount to take away unilaterally right to have reassessment and resultant increase in marks on that basis as observed by the full bench of this court in aforesaid letters patent appeal and as such it would offend the principles of fair play also.
The new rules or reassessment cannot be binding on the examinees who were not invited to know it and who were never informed that the rules of reassessment and the form on which they have signed would be repelled as result whereof their vested right there under would get jeopardized. This kind of retrospective operation of rule affecting already accrued right cannot be permitted as it would be contrary to principles of Article 14 of the Constitution of India.
When this Court is inclined to allow this petition only on this ground without going into the other aspect and when the petitioner s sole grievance also gets redressed further examination of grounds and rival contention would be an exercise unwarranted and such exercise is not called for at this stage. Hence it is made clear that this court need not opine on any other aspect of rules its competence to govern future examinations and reassessments and the authorities powers and competence to frame the same. These issues are not required to be decided at this stage as the petitioner s grievance would not survive on account of the direction issued as under.
22. The University is directed to give effect of result of the reassessment in the papers of petitioner and effect change in the marks of those papers for which the petitioner had sought reassessment and amend the result of the petitioner on the basis of the reassessment and issue new mark-sheet so amended as if the petitioner s case was governed by the then existing rule of re-assessment. The said exercise be done within 10 days from the date of receipt of this order.
(S.R.BRAHMBHATT, J.) pallav Page 17 of 17