TEJAS DATTAGURU PENDURKAR Vs. MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION PUNE KOLHAPUR DIVISIONAL BOARD

JUDGEMENT

(1.) The learned Division Bench of this Court, consisting of F. L Rebello and Dr. D. Y. Chandrachud, JJ. , in Writ Petition No. 6395 of 2005, by order dated October 7, 2005, made a reference of the following question to a larger Bench for adjudication since they were unable to agree with the view taken by the learned Division Bench at Aurangabad, consisting of r. M. S. Khandeparkar and S. P. Kukday, JJ. , in Akshay Dilip Bhalerao vs. The state of Maharashtra, Writ Petition No. 4484 of 2005 decided on 21-7-2005 [since reported in 2005 (4) Mh. L. J. 909]"whether after the validity of Regulation 104 has been upheld by the apex Court in Maharashtra State Board of Secondary and Higher secondary Education and another vs. Paritosh Bhupesh Kurmarsheth (supra) , is it open for the Court to order revaluation on the ground that there are cases which amount to an exception to the rule, as held by the learned Division Bench at Aurangabad in Akshay (supra). -

(2.) In Akshay Bhalerao's case, after considering Regulation 104 of the maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 (for short, "the Regulations") and the Judgment of the Supreme Court in maharashtra State Board of Secondary and Higher Secondary Education and another vs. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543 and as also the judgment of the Orissa High Court in Rajkishore Mohanty and others vs. Council of Higher Secondary Education, Orissa and others, AIR 1994 Orissa 31, the learned Division Bench directed the board to subject the answer papers of english to revaluation by any competent valuer other than the valuer who had valued those answer papers earlier, within a period of five weeks from the date of the order and to carry out necessary corrections/modifications in the ultimate results of the petitioners, based on the result of such revaluation and do the needful in that regard. The challenge to the constitutional validity of Regulation 57 (2) of the Regulations, which is pari materia with Regulation 104, however, has been upheld. It has also been observed in the said judgment that"the revaluation was directed in view of the peculiar facts and circumstances of the petitions and, therefore, the decision should not be construed as a precedent but should be confined to the facts and circumstances therein. "in the reference order dated 7-10-2005, the learned Division Bench, expressed that it is not open to the court in the face of the judgment of the Supreme Court in Paritosh Bhupesh kurmarsheth's case (supra) to direct revaluation even in the cases which amount to an exception to the rule, as held in Akshay Bhalerao's case. It is against this backdrop the aforestated question has been formulated and referred to for the consideration by a larger Bench.

(3.) The petitioner had appeared for higher secondary certificate (for short, "h. S. C. ") examination conducted by the Maharashtra State Board of Secondary and Higher Secondary Education, Pune, Kolhapur Divisional Board, Kolhapur (for short, "state-Board") , in the month of March-April, 2005. He secured 83.67% in the said examination. However, in the subjects of English and information Technology (IT) he secured only 68 and 61 marks out of 100 which were not to his satisfaction and consistent with his performance in all earlier examinations. According to the petitioner, the valuation of his performance in these two subjects was not fair and proper. The further case set up by the petitioner is that all throughout he has secured high ranks and awards in the school and the junior college. In middle school scholarship examination, maharashtra Talent Search examination, Maths examination held by the maharashtra Ganit Adhyapak Mandal, etc. also he had secured high ranks. He has, in detail, mentioned his curriculum vitae in paragraph 2 of the writ petition in support of his claim being a meritorious student all throughout. He further states that he was shocked and surprised to see the marks in English and IT subjects which were much below his expectations. The petitioner, therefore, applied for verification of the marks in the subjects of English and IT as provided for in Regulation 104 of the Regulations. The State Board, vide its communication dated 27-6-2005, informed him that the verification shows that there is "no CHANGE" in the marks assigned by the examiner/moderator and which are already communicated to him in the statement of marks. It is this communication sent by the State-Board is impugned in the instant petition.