SHRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V. NAGARJUNA REDDY WRIT APPEAL NO. 960 OF 2006 BETWEEN NTR University of Health Sciences, Vijayawada & another ………Appellants And T. Deepthi & others ………Respondents Counsel for the appellants : Shri D.V. Nagarjuna Babu Counsel for the respondents : Shri P. Venu Gopal Dated: 22.09.2006 ::JUDGMENT:: Per G.S. SINGHVI, CJ This appeal is directed against order dated 03.02.2006 passed by the learned Single Judge in Writ Petition No. 27027 of 2005, whereby he directed the appellant-university to extend the benefit of upward revision of marks to the writ petitioners and simultaneously ignore any downward revision of marks during the exercise undertaken pursuant to interim order passed by the Court and further directed the university to declare that the successful petitioners have passed the 1st year M.B.B.S. examination. Respondents - T. Deepthi, Koduru Kadambari, Madadi Vasurchana Reddy and T. Srilatha, who were admitted in M.B.B.S. course in Pratima Medical College, Karimnagar and M.N.R. Medical College, Sanga Reddy respectively appeared in the first M.B.B.S. examination held in September, 2005. The result of the examination was declared on 30.11.2005. All of them were declared fail because they could not secure minimum pass marks. They filed writ petition under Article 226 of the Constitution with the complaint that even though they had done exceedingly well in the papers of Physiology and Anatomy, their answer scripts had not been properly assessed. In paragraphs 6 and 7 of the affidavit filed by respondent No.1 – T. Deepthi, it was averred that all the petitioners are meritorious and hardworking students; that they had prepared well for the examination and had answered the questions almost accurately and correctly and yet they were awarded zero marks for certain questions. It was further averred that almost 300 students of different medical colleges were declared fail and, therefore, it was a fit case for reassessment of the answer scripts. After taking note of the fact that in many cases the examiner had awarded zero marks despite the fact that the answers were written in a fairly extensive manner, the learned Single Judge passed interim order dated 4-1-2006. For the sake of convenience, that order is reproduced below: “ In these writ petitions, the petitioners are the students of M.B.B.S. course. They have completed part-I thereof and have taken examinations in the subjects of Anatomy, Physiology and Bio-Chemistry from various colleges. Their results were declared on 30.11.2005. On their verification, they came to know that they have failed in one subject or the other. Except two of them, all the other petitioners were declared failed, since they fell short by one mark. For one petitioner, the shortage is four (4) marks and for another, it is two(2)marks. In accordance with the procedure in vogue in the University, the petitioners applied for retotalling of the marks in their respective answer scripts. During verification, it emerged that the Examiners have awarded zero marks to certain answers. They contend that having regard to the nature of answers given by them, it is quite improbable that they must be awarded zero marks. In the context of the fact that they have failed with the shortage of almost one mark, they have approached this Court with a prayer to direct revaluation of their answer scripts. Extensive submissions were made on behalf of the petitioners and the University. To satisfy itself about the claim of the petitioners, this Court directed the learned standing counsel to produce the concerned answer scripts. A perusal of the answer scripts discloses that in many cases, the Examiner had awarded zero marks, though the answers were written in a fairly extensive manner. It is not for this Court to reassess the evaluation made by the Examiners. At the same time, the petitioners should not be left with an impression that an answer, which was given to the best of their capacity, was not properly rewarded. In the absence of any provision for revaluation, this Court cannot direct the respondents to undertake the same. On earlier occasions, when similar situations have arisen, the concerned Heads of Departments were directed to go through the relevant answer scripts and to satisfy themselves as to the accuracy of evaluation, done by the Examiners. Such a procedure had not only resulted in the satisfaction of the students, but also added to the fairness of the University. Having regard to the fats and circumstances of the case, the University is directed to place the answer scripts of the petitioners, in the subjects, in which they have been awarded less than the minimum marks, before the concerned Head of the Department. The Head of the Department, in turn, shall verify the answer scripts, particularly, the answers, which were awarded zero marks, either by himself or by taking the assistance of the concerned subject expert. It shall be open to them to award marks according to their own evaluation and report the same to the University. In case it emerges that the concerned petitioners have been awarded any marks over and above what they have been awarded earlier, a revised memorandum of marks shall also be issued. This exercise shall be completed within two weeks from the date of receipt of a copy of this order. Post the writ petitioners ‘for judgment’ on 27.01.2006, for final orders.” In compliance of the aforementioned order, the answer scripts of the petitioners were forwarded to Head of the Department, who, after undertaking exercise for revaluation, submitted report to the university indicating therein that in some cases the marks have been increased and in some cases the marks have been decreased. After considering the changes brought about in the marks awarded to the petitioners, the learned Single Judge passed order dated 3-2-2006, the relevant portions of which read as under: “ Basically, this Court cannot act as an appellate authority in the matter of evaluation of answer scripts. On finding some force in the submissions made by the learned counsel appearing on behalf of the petitioners, this Court felt that the matter be entrusted to the concerned Head of the Department, so that the students are not left with an impression that they have been subjected to injuries. Through a letter, dated 01.02.2006, the Registrar of the University has enclosed the result of re-examination of the answer scripts of the petitioners, in terms of the directions issued by this Court. It has so emerged that in the subjects of Physiology and Anatomy, there was an upward revision of marks in favour of various petitioners and in the subject of Physiology, almost without any exception, there was a downward revision. The basic purpose of directing the reexamination of the answer scripts by the Head of the Department was to explore the possibility of awarding marks to the petitioners, for the answers, either which were not awarded any marks at all or were awarded marks disproportionate to the content of the answer. In the process, the petitioners cannot be subjected to a higher disadvantage than what they were already facing before approaching this Court. For the foregoing reasons, the writ petitions are disposed of, directing that the University shall extend the advantage of the upward revision to the petitioners and ignore any downward revision during the course of the exercise undertaken by the University, in pursuance of the orders passed by this Court. Consequently, if any of the petitioner deserve to be declared as pass, the steps in this regard shall be taken, within a period of one week from the date of receipt of a copy of this order.” Shri D.V. Nagarjuna Babu, learned counsel for the appellants argued that the direction given by the learned Single Judge for upward revision of marks of the respondents is liable to be set aside because there is no provision in the University Act or Statutes, Rules and Regulations for revaluation of the answer scripts of M.B.B.S. examination and in the absence of such provision, the learned Single Judge could not have ordered indirect revaluation of the answer scripts of the respondents and given them the benefit of revaluation. He relied on the judgment of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth[1] and order dated 06.04.2006 passed by this Court in Writ Appeal No. 344 of 2006 – Jajala P. Chandra Rao v. N.T.R. University of Health Sciences, Andhra Pradesh at Vijayawada and argued that the mechanism evolved by the learned Single Judge to bypass the law laid down by the Supreme Court and the Division Bench should be disapproved. Shri P. Venu Gopal, learned counsel for the respondents fairly conceded that there is no provision in the University Act or Statutes, Rules and Regulations for revaluation of the answer scripts of M.B.B.S. examination, but submitted that the Division Bench may not upset the direction given by the learned Single Judge because most of the respondents have already been admitted to the second year of M.B.B.S. and are prosecuting their studies in the higher class. We have thoughtfully considered the entire matter. The moot question, which requires determination in these appeals, is whether in the absence of any statutory provision in the University Act or Statutes, Rules and Regulations framed there under, this Court can, in exercise of its power under Article 226 of the Constitution of India, compel the university authorities to revaluate the answer scripts simply because some unsuccessful students come with the complaint that they have not been properly assessed and the Court feels that some error may have been committed in the assessment of the answer scripts. In our opinion, the aforementioned question must be answered in negative. The admissions to educational institutions and examinations etcetera are regulated by statutory provisions framed by the Legislature and delegated legislation framed by the competent bodies comprising of experts in the field of education. The students, who seek admission in the universities and institutions of higher education, are well-versed with the scheme of examination. If there is no provision for revaluation in the University Act or Statutes, Rules and Regulations, the students know that they are not entitled to seek revaluation. In such situation, complaint made by the unsuccessful candidate that he/she has not been properly assessed cannot be entertained by the Court by accepting the plea of compassion or by presuming that some irregularity might have been committed by the examiner in assessing the answer scripts and, on that account, career of the student is likely to be jeopardized. The Court must give due respect to the wisdom and competence of the examiners who are entrusted with the task of assessing the candidates and refrain from imposing its views on the experts in regard to the merit of the answers given by the candidates. An idealistic notion of fairness cannot be imported by the Court for issuing direction for revaluation of the answer scripts of the candidates. Likewise, in its zeal to do the so-called justice to the aggrieved students, the Court cannot call upon the university and its functionaries to act in derogation of the statutory provisions. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (supra), the Supreme Court considered the question whether a candidate has a right to demand inspection, verification and revaluation of answer books and whether the regulations framed by the Board excluding the right of revaluation are unreasonable and arbitrary. A Division Bench of Bombay High Court had struck down Regulation 104(3) of the Regulations framed by the Board which debarred a candidate from seeking disclosure or inspection of the answer books and other connected documents on the ground of confidentiality. However, on the issue of revaluation of the answer books, the Judges constituting the Bench could not reach an agreement. One Judge held that the prohibition contained in Regulation 104 (1) against the revaluation of answer books was illegal. The other Judge expressed doubts on this issue, but ultimately agreed with the conclusion recorded by the first Judge. On appeal, the Supreme Court considered whether Regulation 104(3) was ultra vires to the regulation-making power of the Board and observed: “…… The High Court was of the view that the said contention of the petitioners had to be examined against the backdrop of the fact disclosed by some of the records produced before it that in the past there had been a few instances where some students possessing inferior merits had succeeded in passing off the answer papers of other brilliant students as their own by tampering with seat numbers or otherwise and the verification process contemplated under Regulation 104 had failed to detect the mischief. In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation – whether a rule or regulation or other type of statutory instrument – is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes 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 nexus with 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 fall within the scope of the regulation-making power conferred on the delegate by the statute. Though this legal position is well-established by a long series of decisions of this Court, we have considered it necessary to reiterate it in view of the manifestly erroneous approach made by the Court to the consideration of the question as to whether the impugned clause (3) of Regulation 104 is ultra vires. In the light of the aforesaid principles, we shall now proceed to consider the challenge levelled against the validity of the Regulation 104(3).” The Supreme Court then examined the reasons assigned by the High Court for declaring Regulation 104(3) as ultra vires to Section 36 of the Maharastra Secondary and Higher Secondary Boards Act, 1965 and proceeded to observe: “ …. We do not, therefore, find it possible to accept as correct the view expressed by the High Court that clause (3) of Regulation 104 is ultra vires on the ground of its being in excess of the regulation-making power conferred on the Board. Instead of confining itself to a consideration whether the impugned regulations fall within the four corners of the statute and particularly of Section 36 thereof which confers the power to make regulations, the High Court embarked upon an investigation as to whether the prohibition against disclosure and inspection of answer books and other documents imposed by the impugned clause (3) of Regulation 104 would, in practice, effectively serve the purpose of the Act ensuring fair play to the examinees. The High Court was of the opinion that in deciding the question as to whether the impugned clause was ultra vires, the Court had to bear in mind “the glaring deficiencies” found to exist in the working of the system in spite of all the elaborate precautionary measures taken for preventing such lapses which were detailed in the affidavit in reply and “the far-reaching implications of the said deficiencies on the future of the examinees” and it went on to observe that the “nexus or absence thereof between the purposes of the Act or the purpose of the examination and the prohibition against inspection in the impugned clause can be discovered only by reference to these facts”. Then the High Court proceeded to make following further observations: The examinee is the person affected by miscalculation of totals, omissions to examine any answer, misplacement of the supplementaries of the answer books and misplacement or tampering with the said record in any manner, if any. Adverse result creates suspicion in his mind about the possible errors in the system and his claim to inspection against this background must be held to be reasonable and calculated to subserve the purposes of the examination as also the overall purposes of the Act. This enables him to verify if his suspicions are ill or well founded. Existence of some overriding 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 indispensability 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 cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case and hence there was no scope at all for the High Court to invalidate the provision contained in clause (3) of Regulation 104 as ultra vires on the grounds of its being in excess of the regulation-making power conferred on the Board. Equally untenable, in our opinion, is the next and last ground by the High Court for striking down clause (3) of Regulation 104 as unreasonable, namely, that it is in the nature of a bye-law and is ultra vires on the ground of its being an unreasonable provision. It is clear from the scheme of the Act and more particularly, Sections 18, 19 and 34 that the Legislature has laid down in broad terms its policy to provide for the establishment of a State Board and Divisional Boards to regulate matters pertaining to secondary and higher secondary education in the State and it has authorized the State Government in the first instance and subsequently the Board to enunciate the details for carrying into effect the purposes of the Act by framing regulations. It is a common legislative practice that the Legislature may choose to lay down only the general policy and leave to its delegate to make detailed provisions for carrying into effect the said policy and effectuate the purposes of the statute by framing rules/regulations which are in the nature of subordinate legislation. Section 3(39) of the Bombay General Clauses Act, 1904, which defines the expression ‘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 the 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 between rules/regulations properly so called and bye-laws. When the statute contains a clear indication that the distinct regulation-making power conferred under Section 36 was not intended as a power merely to frame bye-laws, it is not open to the Court to ignore the same and treat the regulations made under Section 36 as mere bye-laws in order to bring them within the scope of justifiability by applying the test of reasonableness.” The next issue considered by the Supreme Court was whether a provision, which is akin to bye-laws, can be struck down on the ground of unreasonableness and observed: “ The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than “is necessary” or that it does not incorporate certain provisions which, in the opinion of the Court, would have been fair and wholesome. The Court cannot say that a bye- law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make bye-laws must ordinarily be presumed to know what is necessary, reasonable, just and fair. In this connection, we may usefully extract Kruse v. Johnson (1898) 2 QB 91, 98, 99 : 78 LT 647 : 46 WR 630 (DC) (quoted in Trustees of the Port of Madras v. Aminchand Pyarelal (1976) 1 SCR 721, 733 : (1976) 3 SCC 167,