INDRANIL D DESHMUKH Vs. MUMBAI UNIVERSITY

JUDGEMENT

(1.) BY this petition, the petitioner has prayed for a mandamus or a direction, directing the respondent, Bombay University, to send the answer book of the petitioners in the subject of "intellectual Property Law" for moderation in accordance with the relevant Ordinance. The petitioner then has made a consequential prayer also.

(2.) NOTICE why the petition should not be admitted was issued by this court on 19th August 2003 and a reply has been filed on behalf of the respondent-University on 1st September 2003. Taking into consideration, the urgency of the matter and importance of the issues involved, the matter was taken up for final hearing with the consent of all the parties concerned. The University has by its reply disputed the maintainability of the petition under Article 226 of the Constitution of India, on the ground of existence of alternate remedy of approaching the in-house redressal machinery provided by the University either by approaching the Students Grievance Redressal Cell or the Board of Examinations. It has contended in reply that Ordinance No. 5046 provides for moderation and the answer book of the petitioner could not qualify for moderation as the Ordinance provides margin of 10% between the marks necessary for passing and scored by the student. Relying on this provision of law it was therefore contended by the learned counsel for the respondent-University that the petition is liable to be dismissed for availability of alternate remedy.

(3.) MR. V. R. Manohar the learned counsel appearing on behalf of the petitioner, submitted that the existence of alternate remedy cannot be disputed but in a present case the alternate remedy of approaching under Ordinance No. 5046 cannot be availed of by the petitioner because he has secured 28 marks and 30 marks are necessary for approaching the Board of Examinations under Ordinance No. 5046. The contention of Mr. Manohar was that he has been deprived from availing of this remedy under Ordinance No. 5046 by the incorrect valuation of his answer book. The contention of Mr. Manohar in effect is that because of the error apparent on the face of record, committed by the valuer of the paper, the answer given by the petitioner to certain question has been valued as zero, which on the text book itself, according to him is incorrect. He could in no circumstances secure zero mark and whenever his valuation is correctly done it would result in his reaching the minimum required for the application of Ordinance No. 5046. Mr. Manohar relying on several judgment of the Supreme Court has stated that in the circumstances where valuation has been on the face of it wrongly done by the University, interference by a writ court is possible and permissible. Reliance was placed on a judgment of the Supreme Court in Kanpur University and Ors. v. Samir Gupta and Ors. reported in AIR 1983 SC page 1230. In this case the High Court of Allahabad was approached for revaluation of the papers in combined Pre-Medical Test held by the Medical Colleges in Uttar Pradesh. The Allahabad High Court accepting the petition, directed revaluation. The matter was therefore taken to the Supreme Court by the University and Ors. and rejecting the appeal by the University, the Supreme Court observed, dealing with the contention of the University that candidates to an examination should not be allowed to challenge the correctness of the answer given in the key answer as under: