WP(C) 2876/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR THE HON’BLE MR. JUSTICE B.P. KATAKEY [Katakey, J.] The petitioners, who appeared in different examinations of 3(three) year s Bachelor of Law (LL.B.) course under Dibrugarh University, by these writ petit ions have challenged the legality and validity of Clause-6 of Annexure-1 of the Dibrugarh University Examination Ordinance, 1972 (as amended up to 2001) and as such all these writ petitions are taken up for hearing and disposal together. 2. The facts relevant for the purpose of deciding the present writ petition s may be noticed as under:- 2.1 The petitioner in WP(C) No.2876/2009 appeared in the 3rd semester examin ation of 3(three) years LL.B. course held in the month of August, 2006. He havin g not secured the required marks in Paper No.301 appeared again in the examinati on in respect of that paper held in the month of July, 2007, where he secured 38 marks. The petitioner thereafter applied for re-evaluation under Clause-70 of t he Dibrugarh University Examination Ordinance, 1972 (in short the 1972 Ordinance ) and in such re-evaluation though he secured 48 that was reduced to 43 in terms of Clause-6 of Annexure-1 to the said Ordinance, which requires awarding marks in re-evaluation on the basis of the average of marks awarded by the original ex aminer and re-evaluation examiner. 2.2 The petitioner in WP(C) No.2877/2009 appeared in the 5th semester examin ation of 3(three) years LL.B. course held in the month of July, 2007. He having not satisfied with the marks allotted in Paper Nos.502 and 505 applied for re-ev aluation. In such re-evaluation he secured the pass marks in Paper No.505. The p etitioner in the month of June, 2008 appeared in the examination in respect of P aper Nos.502 and 504 again. According to the petitioner though he secured the pa ss marks in both those papers in such re-evaluation, that has been reduced by ta king average of the marks allotted by the original examiner and the re-evaluatio n examiner in terms of Clause-6 of Annexure-1 of the 1972 Ordinance. 2.3 The petitioner in WP(C) No.2094/2009 appeared in the 2nd semester examin ation of 3(three) years LL.B. course held in the month of February, 2007 and he applied for re-evaluation of Paper No.203. It is also the case of the petitioner that he also sought for re-evaluation of Paper No.402 of the 4th semester exami nation and though he secured the pass marks, the same were reduced by applying t he Clause-6 of Annexure-1 to the 1972 Ordinance. 2.4 The petitioner in WP(C) No.2097/2009 appeared in 2nd semester examinatio n of LL.B. 3(three) years course held in the month of March, 2006 and being not satisfied with the marks allotted he applied for re-evaluation of Paper No.202 a nd though he secured 48 in such re-evaluation, the same was reduced by applying Clause-6 of Annexure-1 to the 1972 Ordinance. 3. The petitioners, therefore, have challenged the legality and validity of the provisions of Clause-6 of Annexure-1 to the 1972 Ordinance, whereby and whe reunder the University authority has been empowered to take the average of marks awarded by the original examiner and the re-evaluation examiner as the marks ob tained on the re-evaluation done pursuant to the provisions contained in Clause- 70 of the 1972 Ordinance. It is the case of the petitioners that though they sec ured the pass marks in the respective papers in such re-evaluation, the same hav e been reduced by invoking the aforesaid Clause-6, which provision, according to the petitioners, is arbitrary, unjust and unreasonable. According to the petiti oners had they been awarded the marks as found to have secured by them on such r e-evaluation, they would have been declared pass in the respective examinations. 4. The respondent Dibrugarh University and its Officers filed their joint a ffidavit-in-opposition contending inter alia that the marks after re-evaluation has been awarded to the petitioners in terms of Clauses-6 and 7 of Annexure-1 to the 1972 Ordinance, which stipulates the procedure to be followed for re-evalua tion and cognate matters. According to the respondents Clause-6 of Annexure-1 to the said Ordinance is not at all arbitrary, unjust and unreasonable, which prov ision has been incorporated pursuant to the policy decision of the University in regard to the re-evaluation of answer scripts keeping in view the greater acade mic interest as well as the interest of the students and to avoid subjective ass essment of answer scripts. 5. We have heard Mr. D.R. Gogoi, learned counsel for the petitioners and Mr . K. Agarwal, learned counsel appearing for the respondent University and its Of ficers. 6. It has been contended by the learned counsel for the petitioners that th e re-evaluation being a process of evaluating or ascertaining the marks required to be allotted to an examinee in an examination, again, there cannot be any sti pulation in any Rule or Ordinance requiring taking of average of the marks allot ted by the original examiner and the re-evaluation examiner to ascertain the mar ks obtained in such re-evaluation, as it would deprive the examinee from getting the marks to which he is entitled to. According to the learned counsel such a C lause in Annexure-1 to the 1972 Ordinance requiring taking of such average of ma rks for the purpose of ascertaining the marks to be awarded on such re-evaluatio n is highly arbitrary, unreasonable and unjust, which is violative of the Consti tutional mandate of Article 14, in as much as by the said provision an unreasona ble classification is sought to be made by the respondent University. According to the learned counsel the plea of the respondent University as taken in the aff idavit-in-opposition filed that such a Clause has been incorporated in Annexure- 1 to the 1972 Ordinance so as to eliminate the subjective assessment of the answ er scripts, is not tenable in law. The learned counsel, therefore, submits that the said provision may be struck down and the University authority may be direct ed to declare the result of the petitioners by taking the marks allotted by the re-evaluation examiner, as the marks secured in such re-evaluation of the answer scripts concerned. 7. The learned counsel appearing for the respondent University on the other hand supporting the requirement of taking the average marks awarded by the orig inal examiner and the re-evaluation examiner for the purpose of ascertaining the marks secured by an examinee on such re-evaluation, as stipulated in Clause-6 o f Annexure-1 to the 1972 Ordinance, has submitted that such a Clause has been in corporated by the University authority just to avoid the subjective assessment o f the answer scripts by the examiner. According to the learned counsel such a pr ovision is also available in some other Universities in India and cannot at all be termed as arbitrary, unreasonable and unjust, which does not create an unreas onable classification. The learned counsel submits that with a view to make corr ect assessment of the marks secured by an examinee on re-evaluation of the conce rned answer scripts, the marks allotted by the original examiner cannot be ignor ed, for which the University authority had decided to take the average of both t he marks allotted by the original examiner as well as by the re-evaluation exami ner, so as to work out the marks to be allotted on such re-evaluation. 8. The submissions of the learned counsel for the parties received our due consideration. The Clause-70 of the 1972 Ordinance provides for re-evaluation of answer scripts. It provides that a candidate may apply for re-evaluation of an y answer scripts of any theory paper, subject to a maximum of 2(two) papers in t he examination, where the candidate had appeared, subject to payment of the pres cribed fee and filing application for such re-evaluation within a period of 20 d ays from the date of publication of results. Proviso to said Clause stipulates t hat the procedure to be followed for re-evaluation and cognate matters shall be laid down as Annexure-1 of the Ordinance. For sake of convenience Clause-70 of 1 972 Ordinance is quoted below:- 70. A candidate may apply through the Principal/Head of the Department for re-e valuation of any script of any theory paper subject to a maximum of two papers i n the examination where the candidate has appeared, on payment of prescribed fee s within 20(twenty) days from the date of publication of the results. 9. Annexure-1 of the 1972 Ordinance lays down the detailed procedure to be followed for re-evaluation and cognate matters. Clause-6 of Annexure-1, which ac cording to the petitioners is the offending Clause, provides that an answer scri pt for re-evaluation shall be examined by one examiner and the average of marks awarded by the original examiner and re-evaluation examiner shall be the final m arks. For sake of brevity Clause-6 of Annexure-1 to the 1972 Ordinance is reprod uced below:- (6) An answer-script for re-evaluation shall be examined by one examiner in bot h TDC and PG Examination and the average of marks awarded by the Original Examin er and Re-evaluation Examiner shall be the final marks. 10. From the aforesaid provisions of the 1972 Ordinance, it is, therefore, e vident that an examinee can ask for re-evaluation of answer scripts, subject to maximum of 2(two) papers. In the instant cases, it is not in dispute that the pe titioners pursuant to Clause-70 of 1972 Ordinance applied for re-evaluation of c ertain answer scripts, as permissible under such Ordinance and were allotted mar ks on such re-evaluation by taking average of the marks awarded by the original examiner as well as by the re-evaluation examiner, by virtue of the procedure la id down in Annexure-1 to such Ordinance for re-evaluation, more particularly in Clause-6 thereof. The applicability of the provision of Clause-70 of 1972 Ordina nce has not been disputed by any of the parties. 11. Re-evaluation is an act or process of evaluating or ascertaining again t he marks which an examinee is entitled to secure in respect of any answer script s. The purpose of such re-evaluation is to eliminate the mistake that may have b een committed by the original examiner in evaluating the answer scripts, so that the examinee does not suffer because of such mistake. In a given case the origi nal examiner by mistake or otherwise may award lesser marks, thereby depriving a n examinee from the marks to which he is entitled to and such mistake can be cur ed by a process of re-evaluation so that the deserving examinee can be allotted the marks he deserves and for that purpose only, the provisions for re-evaluatio n of the answer scripts is incorporated in the Statute/Ordinance of different Un iversities including the respondent University. 12. Clause-6 of Annexure-1 of 1972 Ordinance, as noticed above, provides for taking of the average of the marks awarded by the original examiner and re-eval uation examiner, for the purpose of ascertaining the marks secured by an examine e on such re-evaluation. The purpose for which the provisions for re-evaluation has been incorporated in the Ordinance would not be achieved if such average of the marks secured by the candidate is allowed to be taken as the marks secured o n such re-evaluation, the process of re-evaluation being to rectify the mistake that has been committed by the original examiner in awarding the marks in respec t of the answer scripts in question. The said provision in Clause-6 is also arbi trary, unreasonable, unjust and violate the Constitutional mandate of Article 14 , as is sought to create an unreasonable classification amongst the examinees of a particular examination, as a class is sought to be created in respect of the examinees whose answer scripts have not been properly scrutinized by the origina l examiner and the examinees whose answer scripts have been scrutinized by the o riginal examiner properly. Such classification is not permissible as it was not the fault of the examinees, whose answer scripts have not been properly scrutini zed by the original examiner. Such a Clause is also unreasonable and arbitrary a s an examinee, who deserves certain marks in an answer script is sought to be de prived from the same by making provision for taking the average of the marks awa rded to such examinee by the original examiner and by the re-evaluation examiner . For example, suppose the original examiner in respect of the answer to a parti cular question has wrongly awarded ’0’ marks though he is entitled to 10 marks, can he be awarded 5 marks by taking average of the marks awarded by the original examiner and the marks awarded by the re-evaluation examiner? The answer is obv iously ’No’. If such a procedure is allowed to be followed, it would amount to d epriving the examinee from his due i.e. from the marks to which he is entitled t o, which in any case cannot be the purpose of re-evaluation of an answer script. The contention of the respondents that such a Clause has been incorporated to a void the subjective assessment of the answer scripts, in view of the aforesaid d iscussion, cannot at all be accepted. 13. In view of the aforesaid discussion, Clause-6 of Annexure-1 to the 1972 Ordinance requiring taking of average of the marks awarded by the original exami ner and the re-evaluation examiner, as the marks secured on such re-evaluation, is declared as illegal and as such struck down. The University authority shall a ward the marks to the petitioners, in the concerned answer scripts, as has been awarded by the re-evaluation examiner and declare the result accordingly. 14. The writ petitions are accordingly allowed, as indicated above. No costs .