Karnataka Veterinary Animal and Fisheries Sciences University (Kvafsu) Vs State of Karnataka

(SRI K.S. HARISH, GOVERNMENT ADVOCATE FOR R-1 SMT. MOHANA KUMARI B.V, ADVOCATE AND SRI ABUBAKAR SHAFI, ADVOCATE (V/C) FOR SRI ABDUL ANSAR P, ADVOCATE FOR R-3 R-2 SERVED)

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THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE WRIT APPEAL AND SET ASIDE THE ORDER DATED 25.11.2024 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.No.5876/2024 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS PRONOUNCED AS UNDER:

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CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA and HON'BLE MR JUSTICE M.I.ARUN

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CAV JUDGMENT

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(PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA)

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Heard learned Advocate Smt. Vaishali Hegde for the appellants and learned Advocate Mr. Abubacker Shafi who appeared through video conference, with learned Advocate Smt.

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Mohana Kumari for respondent No.3. Respondent No.2 is served with the notice of this Court, however has not chosen to appear.

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The present appeal is directed against the following order

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dated 25^th November 2024 in writ petition No.5876 of 2024.

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2.1 The order reads as under,

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“3. Pending consideration of the matter taking into account that neither a challenge evaluation nor a revaluation is permitted under the Rules and taking into consideration that the petitioner is likely to lose an academic year on account of the same. Respondent No.2 and 3 are directed to carry out the reevaluation of the papers of the petitioner through a different evaluator than the evaluator who had valuated the answer scripts of the petitioner on the earlier occasion within one week's from today.”

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2.2 Respondent No.3 was the original petitioner who in his petition stated that he was student of Bachelor of Veterinary Science pursing her studies at the appellant University after paying the fees. What the petitioner prayed in the petition was to declare the Veterinary Consulate 1984, Veterinary Council of India Regulations, 2008 and Veterinary Council of India, Minimum Standards and Veterinary Education (Bachelor of Veterinary Science and Animal Husbandry Degree Course), 2016 to be ultravires .

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2.3 The second principal prayer was to direct the respondentsappellant herein to conduct the revaluation of the examination paper in Veterinary Microbiology held on 30^th June 2023 and 1^st July 2023.

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While dealing with the present appeal, the Court is aware that the order brought under the appellate jurisdiction is an interim order. In normal facts and circumstances, the Court would have dissuaded itself from examining the merits and from entertaining the appeal.

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3.1 However, the facts and the nature of order have different dimension. Learned Single Judge by the impugned order directed for revaluation of the paper of the petitioner through different evaluator other than the one who earlier evaluated the answer sheets of the petitioner, even as learned Single Judge observed that the evaluation is not permitted under the rules.

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3.2 The Hon’ble Supreme Court in Shyam Sel and Power Ltd.

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vs. Shyam Steel Industries Ltd. [(2023) 1 SCC 634] , discussed in the context of Clause 15 of the Letters Patent Appeal of Calcutta High Court, as to which type of order could be classified as judgment for the purpose of intra court appeal. Addressing the question when can an order be construed as 'judgment' under clause 15 of the Letters Patent, it was observed that orders in order to be amenable to Letters Patent jurisdiction must have been such possessing the quality of finality.

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3.2.1 In Shyam Sel and Power Limited (supra), the Supreme Court observed thus,

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"It could thus be seen that though this Court has held that the term 'judgment' used in Letters Patent could not be given a narrower meaning as is given to the term 'judgment' used in CPC and that it should receive a much wider and

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more liberal interpretation, however, at the same time, each and every order passed by the trial judge could not be construed to be a 'judgment' inasmuch as there will be no end to the number of orders which would be appealable under the Letters Patent. It has been held that the word 'judgment' has undoubtedly a concept of finality in a broader and not in a narrower sense. It has been held that where an order vitally affects a valuable right of the defendants, it will undoubtedly be treated as a 'judgment' within the meaning of Letters Patent so as to be appealable to a larger Bench."

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3.2.2 After referring to Shah Babulal Khimji vs. Jayaben D.

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Kania [(1981) 4 SCC 8], it was held,

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"Whether an order impugned would be a 'judgment' within the scope of Clause 15 of Letters Patent, would depend on facts and circumstances of each case. However, for such an order to be construed as a 'judgment', it must have the traits and trapping of finality. To come within the ambit of 'judgment', such an order must affect vital and valuable rights of the parties, which works serious injustice to the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties cannot be treated as a 'judgment'. If such is permitted, the floodgate of appeals would be open against the order of Single Judge."

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(para 22)

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3.2.3 It was held thus that whether the order could be said to be a

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'judgment' within the scope of Clause 15 of the Letters Patent, would depend on the facts and circumstance of each case. It was observed and held that for such an order to be considered as judgment, it must have 'traits and trappings' of finality.

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3.2.4 In Madhu Limaye vs. State of Maharashtra [(1977) 4 SCC 551] , the Apex Court in the context of Section 397(2) of the Code of Criminal Procedure discussed about the interlocutory orders passed in writ petitions, which would qualify for challenge in the appeal, to be those which either substantially affect or touch upon to substantial rights or liabilities of the parties or which are matters of moment and cause substantial prejudice to the parties.

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3.2.5 With reference to the propositions laid down in Madhu Limaye (supra) , the larger bench of the Kerala High Court in K.S. Das vs. State of Kerala [(1992) 2 KLT 358] , observed thus in para to highlight the position of law with regard to the nature of the interim orders which have the final touching upon the rights of the parties,

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"Thus, 'interlocutory orders' may mean purely procedural orders and not orders which affect or, touch upon rights of parties or matters of

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moment, though the main case is not disposed of. In that sense, they are not final. But they are interlocutory orders which are not mere orders of a procedural nature, but can be treated as a kind of intermediate orders which affect or touch upon rights of parties or are matters of moment. It all depends upon the context of the words in the Act taken as a whole and the intention of the Legislature. In such a case word 'order' or 'interlocutory order' cannot be given its plain or grammatical meaning. The orders appealable in Central Bank of India v. Gokul Chand , AIR 1987 SC 799, and those held revisable in Amarnath's case, AIR 1977 SC2185 = 1977(4) SCC 137; and Madhu Limaye's case, AIR 1978 SC 47= 1977 (4) SCC 551 are, therefore, of the 'intermediate category."

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3.3 The impugned order has the definite trappings of finality in as

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much as a direction is given to revaluate the answer sheet and that the same is also the principal relief prayed for in the writ petition. In view of the traits of finality attached in the order, it deserves to be dealt with on merits.

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3.4 Basic facts in the background may be noted. The petitioner is a student of 2^nd year for the course of Bachelor of Veterinary Science who had joined the studies on 22^nd January 2021 through Non-Resident Indian quota in the academic year 2020-21. The result of the annual examination for the 2^nd year was declared. The petitioner failed in two subjects out of five subjects. Under the

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Regulations, she was entitled to apply for re-totaling of marks. Upon her application, the answer books were examined on 21^st June 2023, the result was declared and no change in the marks were found, she stood failed.

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3.4.1 Thereafter, the petitioner came to be admitted provisionally to the 3^rd year in terms of Regulation 16(4) of the Academic Information and Regulations governing the Bachelor of Veterinary Science degree quota. Said Regulation 16(4) stated that,

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"The Regulation provides for provisional promotion of a student to next higher class till the declaration of result of the Compartment Examination provided the provisional promotion shall be subject to clearance in the Compartment examination of that or those subject(s) and shall be provisional and if the student fails in the Compartment Examination, he or she shall stand automatically reverted to the class from where he/she was allowed provisional promotion."

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3.4.2 It is provided in sub-Regulation (5) that the failed students

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shall register again and such students shall have to fulfill all requirements afresh. The petitioner appeared for the compartment examination in the subjects of Veterinary Microbiology and

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Veterinary Biochemistry in which she had failed. She passed the Veterinary Biochemistry, but failed to Veterinary Microbiology.

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3.4.3 The petitioner again applied for re-totalling of the theory examination paper of the Veterinary Microbiology. The scrutiny of the answer books showed that there was no change and the petitioner was declared to have been failed in the subject of Veterinary Microbiology. Resultantly, the petitioner failed to clear the supplementary examination-compartment examination for the 2^nd year in the course. She had to be reverted back as per Regulation 16(4) and 16(5) to require to take re-admission in the 2^nd year.

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3.4.4 Instead of seeking readmission, which was the providence of the Rule, the petitioner sought re-evaluation of her answer book in the Veterinary Microbiology. It was not permitted on the ground that there was no provision under the Regulations for having re-evaluation of mark-sheet. As the request was denied, the petitioner filed Writ Petition No.20715 of 2023 seeking a writ of mandamus to conduct re-evaluation of the examination papers in the subject of Veterinary Microbiology, for which the examinations were held on 30^th June 2023 and 1^st July 2023 respectively, further

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seeking to permit her to inspect the answer sheets. The said petition came to be withdrawn. This order passed by the court is material and has impact on the controversy, which is referred to and extracted hereinafter.

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Learned Advocate for the appellant submitted that a clear error was committed by learned Single Judge in directing the appellant to conduct the re-evaluation of the answer script, when there is no provision for re-evaluation in the Regulations governing the course. It was next submitted that learned Single Judge passed the order after gap of one-and-half years from the date of examination and that in passing the order, the entire petition was practically allowed. Regulation 18(6) was pressed into service.

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4.1 On the other hand, learned Advocate for the respondentoriginal petitioner submitted that the order was interim order and learned Single Judge has not disposed of the main petition. It was submitted that if the order is not sustained, the petitioner would suffer a serious prejudice.

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The submission that since the impugned order is interim order, the appeal should not be entertained, may be dealt with at

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the outset. Measured by the propositions of law laid down by the Supreme Court in Shyam Sel and Power Ltd. (supra) , the instant order, though interlocutory, has trappings of finality on at least three counts. Firstly that it amounts to allowing the petition at the interim stage. In the second place, the order though passed, directing re-evaluation of the answer-sheet is not backed by any provisions permitting the re-evaluation. Thirdly, as stated below, the petitioner had already given up his right to seek the relief.

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5.1 In respect of the third aspect mentioned above, it will be relevant to mention the order passed in the earlier writ petition No.20715 of 2023 in which the same prayers for re-evaluation was made. While disposing of the earlier petition on 8^th December 2023, following order was passed by the court,

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"The petitioner has filed this writ petition seeking direction to the respondents to conduct the revaluation of the examination paper of the petitioner in Veterinary Micro Biology (VMC) held on 30.06.2023 and 01.07.2023 and permit the petitioner to see her answer script.

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Learned counsel for the petitioner submits that he will confine this writ petition only to the extent of permitting the petitioner to see her answer script.

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Learned counsel appearing for respondent No.2 submits that respondent No.2 will permit the petitioner to see her answer script and date may kindly be fixed.

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In view of the submission made by the learned counsel for respondent No.2, the writ petition is disposed of directing respondent No.2 to permit the petitioner to see her answer script. Further, the petitioner is directed to appear before respondent No.2 on 20.12.2023."

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5.2 From the bare reading of the aforesaid order, it is clear that,

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at that time, the petitioner had limited her prayer to the extent of permitting her to see the answer scripts. The prayer for re-evaluation was given up. Once the prayer for re-evaluation was not pressed and was given up, it was not permissible in law for the petitioner to seek the very prayer again by filing subsequent another petition. Learned Single Judge, in granting the relief by way of interim order, has given the relief and the prayer which were given up by the petitioner in her previous petition. Thus there is a manifest infirmity on this score in the order of learned Single Judge, when the prayer of re-evaluation is already dropped, came to be

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allowed.

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5.3 In allowing the petitioner’s prayer to undertake the re-evaluation of the answer script, learned Single Judge has granted the relief which is the principal relief. It is well settled principle that the court would not grant the relief of the nature which would tantamount to granting of main relief at the interim stage. Granting of main relief in the interim order is an illegality in itself, rendering the order attached with the finality, which was not permissible.

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5.4 The reliance by the appellant on Regulation 18(6) governing the Veterinary Science course was well placed, which Regulation provided that no representation by the students shall be entertained regarding the outcome of the result after scrutiny. What was permissible for the petitioner was only to seek re-totalling of the marks, which right she had already exercised. She prayed and was granted in the impugned order, the re-evaluation for which there was no provision in the regulation.

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5.5 When there was no provision in the Rules or Regulation applicable to the course of Veterinary Science in question, to ask for or to be entitled to get the answer sheets re-evaluated, learned Single Judge was entirely unjustified in passing the direction for

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re-evaluation. What was not permitted in the regulation, could not have been granted even as a principal relief, much less to be ventured for interim relief. In granting the interim relief to the petitioner, learned Single Judge legislated and proceeded as if there was an express provision.

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For all the aforesaid reasons, the impugned order of learned Single Judge is not sustainable in eye of law. Resultantly, order dated 25^th November 2024 passed by the learned Single Judge in the pending proceedings of writ petition No.5876 of 2024, is hereby set aside. Learned Single Judge shall proceed to decide the writ petition in accordance with law expeditiously.

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The present appeal stands allowed.

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Sd/(N. V. ANJARIA) CHIEF JUSTICE

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Sd/(M.I.ARUN) JUDGE

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KPS

Karnataka Veterinary Animal and Fisheries Sciences University (Kvafsu) v. State of Karnataka

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Karnataka Veterinary Animal and Fisheries Sciences University (Kvafsu) v. State of Karnataka

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