Miss. Manisha Surana vs Central Board Of Secondary Education … on 2 August 1996

Delhi High Court
Miss. Manisha Surana vs Central Board Of Secondary Education … on 2 August, 1996
Equivalent citations: AIR 1997 DELHI 111, (1996) 64 DLT 257
ORDER
1. Rule. Heard learned counsel for the parties.

2. The present petition is directed against the respondents to evaluate the answer sheet of the petitioner against admission card for the Under Graduate Entrance Test, 1996 conducted by respondent No. 1 on June 30, 1996 in respect of Admit Card No. 038015 and Roll No. 1038015 and for direction to respondent No. 2 to grant admission to the petitioner to MBBS/BDS Course 1996 in case she is entitled as per merit rank.

3. The petitioner took All India Senior School Certificate Examination 1996 conducted by respondent No. 1 and secured 84.6 per cent marks in aggregate. Thereafter on June 30, 1996 she appeared for the entrance examination for admission to the. MBBS/ BDS Course 1996 in respondent No. 2 University with Admit Card and Roll Number as mentioned above. The petitioner further alleged that the test was objective type and there were 200 questions serially numbered followed by 4 responses, also serially marked. The candidate was required to mark correct response in the answer sheet by darkening the circle mentioned for the purpose in the answer sheet. The duration of the entrance examination was 2 hours 30 minutes and had carried 800 marks. Negative marks were stipulated against wrong answers. It is contended that the petitioner duly filled in her roll number, Test Booklet number and all other necessary particulars wanted in the answer sheet including her name. The petitioner alleged that she had requested the Invigilator present in the Examination Hall to check the answer sheet and to ensure completion of all necessary formalities and guidance in this regard was, therefore, sought from the invigilator who examined and checked the answer sheet and informed the petitioner that it was duly filled as per requirement. The answer sheet contained certain columns on the first page to be completed by the candidate with the specific direction to the Invigilator as follows:

SIGNATURE OF THE CANDIDATE SIGNATURE OF THE INVIGILATOR
(Please check Roll No. and
Test Booklet Code as filled
up by the candidate on side 2)

The
side 2 contained the following columns

A B
C D

The petitioner omitted to fill the above column and the invigilator also did not check the same. The other relevant information was provided by the petitioner on the answer sheet. It is contended that the petitioner solved all the 200 questions which were given to her and was expecting a good merit rank in the said examination. However, as the petitioner had some doubt with regard to filling up of the Test Booklet Code, she made some enquiry when she was informed that for not marking the Test Booklet Code, the answer sheet of the petitioner would not be evaluated by the respondents. The petitioner, consequently, made a representation dated July 2, 1996 to the respondents with a specific request that all particulars had been duly mentioned and the respondents, in fact, had the information with them with regard to the Test Booklet Code given to the petitioner. Therefore, there was no ground for not evaluating the answer sheet. The petitioner further informed the respondents that she had specifically requested and enquired from the invigilator with regard to the aforesaid Booklet Code and was informed that the petitioner had adequately complied with the requirement of the Examination. The respondents obviously rejected the contention of the petitioner and informed that they shall not evaluate the answer sheet of the petitioner as she had failed to fill in the Test Booklet Code on page 2. Aggrieved by the same, the present petition has been filed under Article 226 of the Constitution of India.

4. The main contention of learned counsel for the petitioner is that the action of the respondents is arbitrary, unduly harsh and illegal for the simple reason that there was sufficient and adequate identification in terms of the name of the candidate, Booklet number, Centre number, Roll Number which was available with the respondents for the purpose of evaluating the answer sheet and the invigilator was assigned the duly with a specific direction to check that the candidate had filled up Roll Number and Test Booklet Code correctly. The space was left blank for the invigilator’s signatures on the right hand side after making the necessary check. On side 2 of the answer sheet the respondents had covered page in such manner that the columns with regard to serial number, Centre Number, Test Booklet Number were clearly highlighted at the bottom of the page whereas the Test Booklet Code appeared in a small column at the top of the page. There were 200 questions to be attempted with 4 responses, serially marked. The duration of the entrance examination was 2 hours 30 minutes carrying 800 marks. In view of the paucity of time, the petitioner, it is argued, failed to complete the relevant column of Test Booklet Code on page 2 and the invigilator also was negligent in this regard. This, in short, are the contentions raised in the petition.

5. The learned counsel for the respondents have denied the averments made by the petitioner and have argued that when the petitioner left blank the ‘Booklet Code’ indicated in the answer sheet, it was to be presumed to be incorrect booklet code and the answer sheet of the petitioner was not evaluated.

6. Reliance is placed on Clause 40 as contained in the ‘Manipal Academy of Higher Education (Deemed University) Manipal, Prospectus for 1996-97 Academic Year which reads as under :

“Booklet code as filled up by the candidate in the answer sheet on side 2 will be accepted as final for the purpose of evaluation. When the booklet code is left blank or more than one booklet code is indicated on the answer sheet it will be deemed as incorrect booklet code and answer sheet will not be evaluated.”
The prospectus further stated in Annexure II which has already been referred to earlier that the invigilator had to put his signature on the answer sheet after checking roll number and Test Booklet Code as filled up by the candidate on side 2. The other contention which has been raised by learned counsel for respondent No. 2 is that the said respondent is not an authority within the meaning of Art. 12 of the Constitution of India and is that not amenable to writ jurisdiction of thus Court.

7. The learned counsel for respondent No. 1 has argued that this Court is not empowered to issue directions to the University to protect the interest of students as Clause 40 in the prospectus clearly stipulates the requirement to be completed by the candidate taking the Examination. Reliance is placed on the judgment of the Supreme Court as reported in A. P. Christians Medical Education Society v. Government of Andhra Pradesh, . This judgment is cited out of the context taking into consideration the facts of the present case. Paragraph 10 of the judgment will clearly demonstrate that it has no application. This reads as follows:

“10. Shri K. K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the medical college established by the Daru-Salam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interest of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws. The case.of the medical college started by the Daru-Salam Trust appears to stand on a different footing as we find from the record placed before us that permission had been granted by the State Government to the Trust to start the medical college and on that account, the University had granted provisional affiliation. We also find that the Medical Council of India took strong and serious exception to the grant of provisional affiliation whereupon the University withdrew the affiliation granted to the college. We are unable to treat what the University did in the case of the Daru-Salam Medical College as a precedent in the present case to direct the University to do something which it is forbidden from doing by the University Act and the regulations of the University. We regret that the students who have been admitted into the college have not only lost the money which they must have spent to gain admission into the college, but have also lost one or two years of precious time virtually jeopardising their future careers. But that is a situation which they have brought upon themselves as they sought and obtained admission in the college despite the warnings issued by the University from time to time. We are happy to note that the University acted watchfully and wakefully, issuing timely warnings to those seeking admission to the institution. We are sure many must have taken heed of the warnings issued by the University and refrained from seeking admission to the institution. If some did not heed the warnings issued by the University, they are themselves to blame. Even so if they can be compensated in some manner, there is no reason why that may not be done. We are told that the assets of the institutions, which have sprung out of the funds collected from the students, have been frozen. It is up to the State Government to devise suitable ways, legislative and administrative, to compensate the students at least monetarily. The appeal filed by the society is dismissed with costs which we quantify at Rs. 10,000/-. The writ petition filed by the students is dismissed but, in the circumstances, without costs.”
There is no question of issuing any directions to the respondents which, in any manner, will transgress the provisions of clause 40, as referred to above. This clause in the prospectus merely states that when the booklet code is left blank or more than one booklet code is indicated in the answer sheet, it will be deemed as incorrect booklet code and the answer sheet will not be evaluated. Copy of this prospectus was given to the petitioner which includes the specimen answer sheet and the application form as well. The invigilator was required to put his signatures on the first page of the answer sheet only after checking . the roll number and test booklet code, as filled up by the candidate on side 2.

8. The petitioner in the present case completed all the details except not filling the booklet code on top of side 2. This was required to be completed by her and in case she failed to fill up the column, the invigilator was entrusted with the task of seeing that the same was filled up by the petitioner correctly. The invigilator who was a representative of the respondents clearly failed in his duty in not checking the answer sheet and on the contrary informed the petitioner that everything was in order. For this lapse on the part of the invigilator, the petitioner cannot be penalised. She may have committed the lapse inadvertently but had given all the remaining particulars on the answer sheet which would have enabled the respondents to evaluate the same. The rejection on this score cannot be upheld in the interest of justice and fair play,

9. The plea that the writ petition is not maintainable against respondent No. 2 is also without any force. The said respondent instructed the Central Board of Secondary Education, respondent No. 1 herein, which is a statutory authority to conduct the examination. Therefore, necessary directions can be issued to the said respondent to evaluate the answer sheet of the petitioner. The powers of this Court to issue mandamus under Art. 226 of the Constitution of India have been clearly defined by the judgment of the Supreme Court, as reported in Shri Anadi Muktya Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, . The relevant paragraphs of this judgment are 14, 19, 20 and 21 which read as under:

“14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See The Evolving Indian Administrative Law by M. P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.”
“19. The term “authority” used in Art. 226, in the context, must receive a liberal meaning unlike the term in Art. 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Art. 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.”
“20. In Praga Tools Corporation v. Shri C. A. Imanual, , this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR):
“It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfillling public responsibilities. (See Halsbury’s Laws of England (3rd Ed. Vol. II p. 52 and onwards).”
“21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: “to be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” (Judicial Review of Administrative Act 4 Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice wherever it is found’. Technicalities should not come in the way of granting that relief under Art. 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”
10. Similar view was expressed by the Division Bench of this Court in a judgment reported in Kuldip Mehta v. Union of India, (1993) 2 Delhi Lawyer 196, which reiterated the powers of the High Court under Art. 226. Paragraphs 13 and 14 read as follows:

“13. Under Art. 226 of the Constitution, the High Court has power to issue to any person or authority, including in appropriate cases, any Government, directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo war-ran to and certiorai, or any of them, for the enforcement of any of the rights conferred by Part III (fundamental rights) and for any other purpose. In contradistinction to this, Art. 32 empowers the Supreme Court to issue directions or orders or writs, including writs ” in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III. Language of Art. 226 talks of no limitations on the power of the High Court. There is considerable divergence of views on the interpretation of the word “person” if a writ could issue against a person under Art. 226 of the Constitution. Under clause (1) of Art. 367, unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Art. 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India. “Person”, under S. 2(42) of the General Clauses Act, shall include any company or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statute. When the language of Art. 226 is clear, we cannot put shackles on ourselves to limit our jurisdiction by putting an interpretation on the words which would limit our jurisdiction. When any citizen or person is wronged, High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him.
14. Article 226 does not inhibit the right of the High Court in the exercise of its jurisdiction. Its powers under Article 226 are all pervasive subject only to certain self imposed limitations it will exercise that power throughout the territory in relation to which it exercises jurisdiction. Clause (2) of this Article similarly empowers a High Court in relation to the territories within which the cause of action, wholly or in part, arises. Must we refer to any judgment when the language of Art. 226 itself is explicit? Nevertheless, since the power conferred upon the High Court under Art. 226 is so vast, the Court itself has laid down certain guidelines and self imposed limitations subject to under which it will exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. For example, the High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. It does not act like a proverbial “bull in china shop in the exercise of its jurisdiction under Art. 226. It is not necessary for us to compare the exercise of power by the High Court under Art. 226 of the Constitution and that by the Supreme Court under Art. 32 thereof.”
11. The second contention of the respondents in view of the settled position also fails and is liable to be rejected. The learned counsel for the respondents were specifically asked as to whether this minor omission reflects any motive on the part of the petitioner not to fill up one column of page 2 of the answer sheet and whether any plea of unfair means can be substantiated against her. The answer to the same was in negative. Therefore in the facts and circumstances of the case, the petitioner is entitled to the relief as prayed. The petition, as a consequence, is allowed and the respondents are directed to evaluate the answer sheet of the petitioner and declare her result within one month from today. There will be no order as to costs.

12. Petition allowed.