Samarth Mittal vs Union Of India & Ors
2015 Latest Caselaw 4692 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                      Date of decision: 6th July, 2015

+              W.P.(C) 6170/2015 & CM No.11211/2015 (for directions).
       SAMARTH MITTAL                                              ..... Petitioner
                   Through:                    Mr. Ayushya Kumar with Mr. J. K.
                                               Goyal & Mr. Gaurav Goyal, Advs.
                                            versus
       UNION OF INDIA & ORS                                          ..... Respondents

                    Through:                     Mrs. Bharathi Raju, CGSC for R-1.
                                                 Mr. Amit Bansal, Adv. for R-2&3.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J

1. On 30th June, 2015 when this petition came up first, the following

order was passed:

"1. The petition impugns the refusal of the respondent No. 2/CBSE to re- evaluate the answer sheet of the petitioner in the subject of „Physical Education‟ in the Class XII examination.

2. The counsel for the petitioner on enquiry states that the examination in „Physical Education‟ comprises of a theory paper of 70 marks and a practical of 30 marks and clarifies that he is seeking review of the marks accorded to the petitioner in the theory paper only.

3. The attention of this court is drawn to the amendment carried out in the year 2014 and notified on 11th March, 2015 of Rule 61 of the Examination Bye-laws of the CBSE which permits such revaluation.

4. The counsel for the respondent No. 2/CBSE appearing on advance notice has at the outset relied on the order dated 26th November, 2014 of the Division

Bench of this court in LPA No. 749/2014 titled as Shri Hari Mohan Sharma Vs. The Chairman, Central Board of Secondary Education to contend that the revaluation in the subject of „Physical Education‟ contrary to the rules/ Bye-laws is not permissible. However, the counsel for the petitioner rightly contends that the said judgment does not consider the amended Rule 61.

5. The amended Rule 61 allows a candidate to apply for revaluation in the manner as prescribed by the CBSE from time to time.

6. Counsel for the respondent then states that CBSE has issued a Circular which permits revaluation in ten subjects only and of which „Physical Education‟ is not one. She, however, seeks time to place the said circular on record.

7. The question which would arise is whether the CBSE can issue a circular contrary to the Bye-laws and whether the Bye-laws enabling the CBSE to prescribe the manner in which revaluation will be applied for, would entitle the CBSE to restrict the subjects in which revaluation can be applied for.

8. List on 1st July, 2015."

2. The counsel for the respondent No.2 Central Board of Secondary

Education (CBSE) today has in Court handed over the response affidavit

which is taken on record. However, on inquiry, whether any plea other than

that which was raised on 30th June, 2015 has been taken in the counter

affidavit, the counsel for the respondent No.2 CBSE fairly states that the

defence of the respondent No.2 CBSE remains the same, that as per the

Circular issued by the CBSE, revaluation of the answer sheet in the subject

of Physical Education is not permissible. It is further argued that there was

a similar circular in the year 2014 also. Yet another argument is that the

amended Bye-law 61 is to be interpreted as empowering the CBSE to limit

the subjects in which revaluation is permitted. Reliance in this regard is

placed on State (NCT of Delhi) Vs. Sanjay (2014) 9 SCC 772 (para Nos. 66

to 68) to contend that even where the rule uses the word „shall‟ it is

permissible to read the same as „may‟ and on the same parity, the words in

the Bye-law "in the manner as prescribed by CBSE from time to time" have

to be read as including a power to the CBSE to restrict the subjects in which

re-evaluation can be permitted. It is also stated that this has been the

regular/consistent practice of the CBSE.

3. On query, whether the Bye-law stands on a higher footing than the

Circular, the counsel fairly states that while Bye-law is made in accordance

with Clause 18 of the Government Resolution dated 10th July, 1929

constituting the CBSE, the Circular is administrative in character and does

not dispute that a Bye-law would be on a higher pedestal than an

administrative circular.

4. Rule 61 (iv) of the Examination Bye-laws as stood earlier and as

amended with effect from 11th March, 2015 is as under:

As stood earlier As amended w.e.f. 11th March, 2015.

No candidate shall claim, or be For Senior School Certificate (Class XII) entitled to, revaluation of his / Examination, a candidate may also apply "iv) her answer book(s) for re-evaluation in the manner as prescribed by the Board from the time to time. However for Secondary School (Class C) Examination conducted by the Board no candidate shall claim, or be entitled to, revaluation of his / her answer book(s)"

5. The circular issued by the Controller of Examinations, with respect to

re-evaluation inter alia provides as under:

"3. Revaluation

i) Only those candidates who have applied for obtaining photocopy of the evaluated answer book shall be eligible to apply for revaluation or challenge the marks awarded to any question (s) in the following subjects only.

English Core, English Elective (CBSE), English Elective (NCERT), Hindi Core, Hindi Elective, Mathematics, Physics, Chemistry, Biology, Business Studies, Economics, Accountancy."

6. It is not in dispute that the petitioner applied for obtaining photocopy

of the evaluated answer book and complied with the other procedure

prescribed for seeking revaluation.

7. The only question thus for determination is whether CBSE can, in

exercise of administrative power, restrict the subjects in which revaluation

can be sought, while prescribing the "manner" in which revaluation is to be

sought.

8. The counsel for the petitioner though at the time of hearing did not

cite any judgment in this respect but has thereafter, on being prompted,

referred to the Blacks Law Dictionary and the Law Lexicon giving the

meaning of „Manner‟ as, "a way, mode method of doing anything or mode

of proceeding in any case or situation" and as "procedure to be followed".

Copies of judgments, (a) of the Allahabad High Court in Rama Shankar Vs.

Official Liquidator AIR 1956 All 222 (DB) laying down that the word

manner in Section 202 of the Companies Act, 1913 refers to the procedure to

be followed in the matter of institution and hearing of the appeal; and, (b) of

the Supreme Court in Sales Tax Officer Vs. K.I. Abraham AIR 1967 SC

1823 laying down that the phrase "in the prescribed manner" in Section 8(4)

read with Section 13(4)(c) of the Central Sales Tax Act, 1956 only confers

power to prescribe rule stating what particulars are to be mentioned in the

prescribed form, but does not authorize the rule making authority to

prescribe a time limit within which declaration is to be filed by the registered

dealer.

9. The judgment cited by the counsel for the respondent is found to be of

no application. The principle of interpretation of statutes which permits

"shall" to be read as "may" and vice versa also, in my view is not attracted

to the controversy.

10. The amendment with effect from 11th March, 2015 to the Bye-law has

to be seen in the light of the Bye-law as it stood earlier. Prior thereto, CBSE

prohibited applying for re-evaluation. However, the same stood changed

with effect from 11th March, 2015 and re-evaluation has been permitted in

Class XII examination. In my view, the words "....may also apply for re-

evaluation in the manner as prescribed by the Board from time to time" are

incapable of any two meanings. The same cannot be stretched to mean that

the CBSE, while prescribing the manner, can decide to allow re-evaluation

selectively in only some of the subjects of examination in Class XII. The

word „manner‟ as commonly understood, connotes the procedure by which

re-evaluation would be applied for, i.e., the time within which the re-

evaluation shall be applied for and the charges / fees etc. to be paid for re-

evaluation etc. If the purport of the amendment with effect 11th March, 2015

was to empower the CBSE to introduce re-evaluation stage-wise, as is

suggested is being done, nothing prevented the CBSE from, while amending

the Bye-law, use the words "in such of the subjects as may be prescribed".

11. The argument, that this is the way in which the Bye-law has been

interpreted by the CBSE also is of no avail. Once a Bye-law admittedly

stands on a higher footing than the administrative circular which has been

issued, the understanding, if any, of the Controller of Examination thereof or

the difficulties if any faced in introducing re-evaluation in all the subjects at

the same time is irrelevant. Difficulty involved in implementing a law is no

ground to apply the provision of law in a manner different from what the law

means, as discussed by the Division Bench of which undersigned was a

member in Amit Bhagat Vs. Government of NCT of Delhi

MANU/DE/3351/2014. All the said considerations were for the authority

making the Bye-law to consider at the stage / time of making the said Bye-

law and that authority having allowed re-evaluation generally and having

empowered the CBSE only to prescribe the method / manner of seeking re-

evaluation, CBSE cannot whittle down the aforesaid Bye-law and, while

prescribing the manner, also restrict the subjects in which re-evaluation can

be sought.

12. Besides the judgments supra copies of which have been given by the

counsel for the petitioner, reliance in this regard may also be made to , (a)

Dhanjibhai Ramjibhai Vs. State of Gujarat (1985) 2 SCC 5 laying down

that the power to extend the period of probation must not be confused with

the manner in which the extension may be affected and that merely because

procedural rules have not been framed, does not imply a negation of the

power; (b) Mahindra & Mahindra Ltd. Vs. Union of India (1979) 2 SCC

529 laying down that the words "in the manner in which it was made" in

Section 13(2) of the Monopolies and Restrictive Trade Practices Act, 1969

merely indicate the procedure to be followed by the commission in

amending or revoking an order and have no bearing on the content of the

power granted under Section 13(2) or on its scope and ambit; (c) Shankarlal

Aggarwal Vs Shankarlal Poddar (1964) 1 SCR 717; (d), Ashok Kumar

Singh Vs. Union of India MANU/DE/2712/2010.

13. I may notice that the date prescribed for seeking re-evaluation is over

and it is not the case of the respondent No.2 CBSE that there are others apart

from petitioner who have sought revaluation of the theory examination in the

subject of Physical Education. The possibility thus of this order opening the

floodgates and leading to a large number of students seeking re-evaluation in

the subject of Physical Education or in subjects other than those covered by

the Circular aforesaid of the CBSE, does not arise. Anybody else who may

have applied for re-evaluation and which has been denied on similar

grounds, having not approached this court would even otherwise not be

entitled to the relief.

14. The petition is accordingly allowed. The respondent No.2 CBSE is

directed to, in accordance with the Bye-law and the Circular and any other

rules applicable, re-evaluate the answer sheet of the theory examination of

the petitioner in the subject of Physical Education within a period of one

week from today and if there is any change in marks, the re-valuated result

be also declared within the said time. It is further clarified that the absence

of online application for re-evaluation and for which there was no provision,

would not be treated as non compliance by the petitioner of the procedure

prescribed by the CBSE for seeking re-evaluation.

No costs.

Dasti under signature of Court Master.

RAJIV SAHAI ENDLAW, J JULY 06, 2015 „gsr‟