Pallavi Arun Gokhale Vs State of Maharashtra and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO.2383 OF 2001

Pallavi d/o. Arun Gokhale,..Petitioner
Age-22 years, Occu-STudent,
R/o.N-4,F-80,Cidco,
Aurangabad.

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Versus

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1. The State of Maharashtra

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.. Respondents

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2. Dr. Babasaheb Ambedkar Marathwada University, through Registrar, University Campus, Aurangabad.

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3. The Controller of Examination, Dr. Babasaheb Ambedkar Marathwada University Aurangabad.

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4. The Dean, Govt. Dental College, at Aurangabad

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Mr.M.V.Deshpande, Advocate for the petitioner.
Mr.S.P.Daund, A.G.P. for Respondent Nos. 1&4.
Mr.S.S.Bora, Advocate for Respondent Nos.2&3.

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CORAM : A.V. NIRGUDE &
 A.I.S. CHEEMA,JJ.
RESERVED ON: 12.09.2014
PRONOUNCED ON: 07.01.2015

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J U D G M E N T [A.V.NIRGUDE,J.]:-

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1.This petition challenges legality of Ordinance
No.105(iv) framed by the Marathwada University being
ultra-vires and for further consequential reliefs.

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2.The facts of the litigation are as under:-

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3.In the year 1996-1997 the petitioner was
admitted to the course of Bachelor of Dental Surgery.
The petitioner secured IInd rank in the order of merit in
the University examination which was held in the month of
May/June,2000. In the merit list the petitioner was shown
to have scored 460 marks out of 800. In one subject, she
could not score passing total of 50 out of 100. So, she
was awarded two marks as “Grace Marks”. Despite this,
the petitioner stood II in rank and did not get Gold
medal. Someone else who scored 469 marks, was awarded
Gold medal.

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.The petitioner applied for revaluation and it
was found that she scored 60 marks in the subject in
which she was awarded “Grace Marks”. The total marks of
the petitioner thus came to 470. So, she stood Ist in
the examination. The petitioner thought that she was
entitled to gold medal as she stood first in rank in
order of merit. She sent a letter to the University

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demanding correction in the result and gold medal. On
06.01.2001 the University informed her that, she is not
entitled to gold medal because ordinance No.165(iv) of
the University provided that a candidate should not be
eligible for merit, medal for any other award as a result
of revaluation. The petitioner challenged as said above
the vires of the ordinance.

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4. The respondent-university did not file any reply to the petition but opposed the petition on merits. The learned counsel for the petitioner asserted that the revaluation is a part of examination and so declaration of results should reflect changes if occurred after revaluation. He also submitted that the revaluation disclosed a gross error on the part of the examiner and so the university cannot be allowed to take advantage of the same. The Learned Counsel for the petitioner placed reliance on the judgment of Manojkumar Jindal Vs Ravishankar University, Raipur, AIR 1989 MP 1 . The facts of this case were similar. The petitioner in that case also applied for revaluation within the prescribed limit and after revaluation the marks were increased. He too applied to the University to amend the merit list and place him in first position. The University refused to do so. The Division Bench of the High Court held as under:-

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“13. x x x x x x x x x x x x There is no reason why
after revaluation, if the petitioner is found to
have obtained "first position", he should be
continued to be ranked in "third position". This
would be rank injustice to a student devoted to
studies with meritorious performance. The object
behind revaluation is that every man should get his
due which he deserves. That is the rule of law and
also equity. This appears to be a case where the
position in the Merit-List entails consequential
benefits also. Generally the toppers have further
benefits not only of Division and Merit, but often
Medals and Prizes. If that be so. it is all the
worst that the petitioner is deprived of his legal
right to such benefits. There is no reason why the
petitioner should suffer for the fault of the
University. There is no question of any legal
injury to the other two respondents just because
under the rules relating to revaluation, they would
be relegated from their positions Nos, 1 and 2, to
positions Nos. 2 and 3. If the relegated No. 3 had
any grievance, he could have availed of the
provisions regarding revaluation within 30 days. It
is not correct to say that amendment in the
impugned Merit List would not be in the interest of
public at large.

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.As regards the discretion & power under section
226 & 227 of the Constitution of India the Court quoted
following paragraphs.

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'A University is amenable to a direction or writ
issued by the High Court in appropriate cases. As
however, it has been constituted to exercise some
highly specialized functions, acting through
officers and subordinate authorities appointed or
constituted by itself in exercise of powers given
by statute, there should be very good reason for
the High Court interfering in this manner. The
basic requirements for this are that (1) there

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should be a patent and undoubted violation of a
provision in the statute or regulation or
Ordinance, governing the particular subject; (2)
this non-compliance or violation should have
directly resulted in a substantial restriction of
the service or benefit which a citizen is entitled
to get from the University; and (3) the direction
or relief sought should be such that it should not
add to the inconvenience suffered by the public at
large, disproportionate to the injustice or
inconvenience that is sought to be remedied.....

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Changing of text books is left to the discretion of
the University and there is no law that there
should be no change of the text books for a certain
period for examination and the High Court should
not enforce by a writ or direction such a prayer.'

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5.As against this Learned Counsel for the

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University submitted that regulation or even a bylaw
cannot be struck down on the ground of unreasonableness.
It is only when the Court finds that bylaw is manifestly
unjust, capricious inequitable or partial, its operation
can be invalidated on the ground of unreasonableness.
According to him even if the Court sees unreasonableness
in the impugned regulation, other purpose of regulation
cannot be lost sight of. He pointed out that at the time
of declaration of the result and the merit list, the
University has to do it in time bound manner and even
though a mistake is subsequently found, the same cannot
be corrected as it would affect adversely number of other
people. He, therefore, suggested that instead of taking
an idealistic view one must take pragmatic one.

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6.He placed reliance on certain observations of
the Supreme Court in the case of Maharashtra State Board
of Secondary and Higher Secondary Education & Anr. V/s.
Paritosh Bhupeshkumar Sheth & Ors. reported in (1984) 4
SCC 27. Para No. 16, 18 & 21 of the said judgment are as
under:-

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“16. 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. .....

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18. In the light of what we have stated above, the
constitutionality of the impugned regulations has

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to be adjudged only by a threefold test, namely,
(1) whether the provisions of such regulations fall
within the scope and ambit of the power conferred
by the statute on the delegate; (2) whether the
rules/regulations framed by the delegate are to any
extent inconsistent with the provisions of the
parent enactment and lastly (3) whether they
infringe any of the fundamental rights or other
restrictions 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.

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21. 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. ....”

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7.Learned Counsel for the University also placed
reliance on the following observations of the Supreme
Court in the case of The Secretary, All India Pre-
Medical/Pre-Dental Examinations, CBSE and Ors. V/s.
Khushboo Shrivastava & Ors. reported in 2011 (9) SCALE
63. Para 29 of the said judgment is as under:-

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“29. Far from advancing public interest and fair
play to the other candidates in general, any such
interpretation of the legal position would be
wholly defeasive of the same. As has been
repeatedly pointed out by this court, the Court
should be extremely reluctant to substitute its own
views as to what is wise, prudent and proper in
relation to academic matters in preference to those
formulated by professional men possessing technical
expertise and rich experience of actual day-to-day
working of educational institutions and the
departments controlling them. It will be wholly
wrong for the court to make a pedantic and purely
idealistic approach to the problems of this nature,
isolated from the actual realities and grass root
problems involved in the working of the system and
unmindful of the consequences which would emanate
if a purely idealistic view as opposed to a
pragmatic one were to be propounded. It is equally
important that the Court should also, as far as
possible, avoid any decision or interpretation of a
statutory provision, rule or bye-law which would
bring about the result of rendering the system
unworkable in practice. It is unfortunate that this
principle has not been adequately kept in mind by
the High Court while deciding the instant case.”

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8.We are of the view that the impugned regulation

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is part of policy of this University and we are not
inclined to interfere in such policy, merely because we
found that the petitioner was wronged. For the reasons
mentioned in para 29 of the Supreme Court judgment in the
case of Secretary, All India (cited Supra), we decline to
entertain the petition.

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9.The petition, therefore, stands dismissed. No
costs. Rule discharged.

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snk /2014/DEC14/wp2383.01

Pallavi Arun Gokhale v. State of Maharashtra and Ors.

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Pallavi Arun Gokhale v. State of Maharashtra and Ors.

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