published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40658
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.……6794……….. OF 2013
(Arising out of SLP(C) No. 14896 OF 2013)
Pt. Ravishankar Shukla University & Anr. …..Appellants
Versus
Gopal Mishra …..Respondent
J U D G M E N T
Madan B. Lokur, J.
1. Leave granted.
2. In the judgment under appeal, the High Court of Chhattisgarh framed
the following question for adjudication, namely:-
“Whether Pandit Ravishankar Shukla University, Raipur (the
University) is liable to issue mark sheet to the students, who
are permitted to appear in the examination for improving
division of M.Com examination (the subsequent-examination) under
Ordinance 24 of the University (the Ordinance), even if the
division does not change?”
3. The High Court answered the question in the affirmative. We
disagree. Ordinance No.24 of the University does not oblige it to issue a
fresh mark sheet to a student who does not improve his division on taking a
subsequent examination held for improving the division.
4. The respondent Shri Gopal Mishra completed his two year Master of
Commerce course with an aggregate of 49.54% marks. This placed him in the
second division as per Ordinance No. 24 of the University which relates to
the Master of Commerce examination.
5. The Ordinance is in the nature of a composite scheme for obtaining a
degree of Master of Commerce. It provides, inter alia, for improving the
division obtained by a student based on the aggregate percentage of marks
obtained by him/her by taking a repeat examination without attending a
regular course of study in a college affiliated to the University or in a
teaching department of the University.
6. The relevant clauses of the Ordinance relating to the division that
may be obtained by a student and the procedure for improving the division
obtained by him or her are given in Clauses 7, 8 and 9 of the Ordinance.
These read as follows:-
“7. For both the Previous and Final examination a candidate
will be declared successful if he/she obtains at least 36% of the
aggregate marks in the subject.
No division will be assigned on the result of the
previous examination. The division in which a candidate is placed
shall be determined on the basis of aggregate of marks obtained
in both the M. Com Previous and M. Com Final Examination.
8. Successful candidates who obtain 60% of more of the
aggregate marks shall be placed in the First Division, those
obtaining less than 60% but not less than 48% in the Second
Division and all other successful candidates obtaining less than
48% in the Third Division.
9. Candidates who have passed the M.Com examination of the
University in Third or Second Division and desire to appear at
the M.Com examination for improving division may, without
attending a regular course of study in a college affiliated to
the University or in a Teaching Department of the University be
allowed to appear at the aforesaid examination as non collegiate
student on the following conditions.
i) There shall be only two division for such candidates i.e.
First Division and Second Division. The marks required for
obtaining these divisions shall be the same as prescribed
in the Ordinance i.e. examinees who are successful in final
of the examination and have obtained 60% or more of the
aggregate of the marks in Previous and Final of the
examinations taken together shall be placed in the First
Division and examinees who are successful in Final of the
examination and have obtained less than 60% but not less
than 48% of the aggregate marks in Previous and Final of
the Examination taken together shall be placed in the
Second Division.
ii) The results of the candidates obtaining less than 48% of
the aggregate marks in Previous and Final of the
examination taken together shall not be declared.
iii) Candidates shall have the option to appear at both the
Previous and Final Examination in one and the same year and
for being successful at the examination, the candidates
shall obtain 48% of the aggregate marks.
Provided that such candidates who opt to appear in Previous
and Final Examinations separately shall have to obtain
minimum aggregate required for the Previous examination but
he will have to obtain at least 48% in the aggregate of the
Previous and Final examinations taken together or else his
result will be cancelled.
iv) The syllabus for the examinations shall be the same as
prescribed for the year in which the examination is held.
v) Not more than two attempts shall be allowed to such
candidates. Failure or non-appearance at the examination
after permission has been accorded by the University, shall
be counted as an attempt.
Provided however such candidates who opt to appear at the
Previous and Final examinations separately will be allowed
one attempt at the Previous examination and two attempts at
the Final examination.
vi) Candidates who wish to avail the opportunity given in
foregoing para’s will have to apply for permission as
required in the Ordinance relating to Admission of non-
collegiate students to the University examination along
with requisite Registration Fees.
vii) In case a student improves his division under provision of
this para, the fresh degree will be issued after cancelling
his first degree.”
7. As mentioned above, Mishra obtained 49.54% marks which places him in
the second division. Since he was desirous of improving his division by
obtaining a first division, he appeared in a repeat examination as a non-
collegiate student in March 2010. After he took the examination, his
result was not declared. This led him to file a writ petition in the High
Court of Chhattisgarh for a declaration of his result and for the issuance
of a mark sheet based on the result of the repeat examination. The writ
petition was disposed of by a learned Single Judge by an order dated 29th
September, 2011 in which it was held, inter alia, that in the present age
of transparency there is no reason to conceal the marks obtained by Mishra
in the repeat examination. Accordingly, a direction was given to the
University to supply the marks obtained by Mishra in the repeat examination
held in March, 2010.
8. In compliance with the orders passed by the learned Single Judge the
University did intimate to Mishra the marks he had secured in the repeat
examination, but that was in the form of a letter. No formal mark sheet was
issued to him.
9. Mishra was of the view that the University had committed contempt of
the orders of the learned Single Judge by not issuing a fresh mark sheet.
Accordingly, he moved a contempt petition which was dismissed by the
learned Single Judge on 31st January, 2012 holding that the University was
obliged only to intimate the marks obtained by Mishra but was not obliged
to issue a fresh mark sheet.
10. In view of the above, Mishra filed another writ petition in the High
Court, for the issuance of a fresh mark sheet. That writ petition was
withdrawn on 3rd September, 2012 with liberty to take recourse to such
other forum as may be available to him under the provisions of law.
11. Mishra then filed an application for review of the order dated 29th
September, 2012 passed in the writ petition. The application came to be
disposed of by the learned Single Judge on 16th January, 2013, inter alia,
with the following observations:-
“By this petition, the petitioner seeks modification of the order
dated 29.09.2011 to the extent that the respondent University be
directed to issue a fresh/new mark sheet to the petitioner for the
repeat M.Com (Previous & Final) examination. This tantamount to
attempt of the petitioner to seek opportunity to argue the entire
case afresh under the garb of review petition, which is not
permissible and tenable in law. This review petition is in the
nature of appeal, which cannot be considered and decided by this
Court”.
12. Thereafter, Mishra preferred an intra-court appeal against the order
dated 29th September, 2012 and the order dated 16th January, 2013. The
appeal was disposed of by the Division Bench of the High Court by the order
under appeal dated 20th February, 2013.
13. In our view, Ordinance No. 24 prescribes a scheme which, inter alia
enables a student to improve the division obtained by him or her in the
Master of Commerce examination. The Ordinance does not postulate giving
the student an opportunity merely for improving the marks without any
improvement in the division obtained. Were this so, the language of the
Ordinance would have been explicit and would have clearly spelt out that a
student could appear in a repeat examination not only for the purposes of
improving the division obtained by him or her but even for the purposes of
improving the marks.
14. Factually, Mishra improved upon the marks earlier obtained by him.
But he did not improve his division despite the improvement in marks.
Since Mishra did not improve his division, he was not entitled to a fresh
degree in terms of Clause 9 (vii) of the Ordinance. As mentioned above, the
Ordinance does not postulate any obligation on the University to issue a
fresh mark sheet.
15. Learned Counsel sought to draw support from the conclusion of the
High Court that nothing prohibited the University from issuing a fresh mark
sheet. While this may be so, there is equally no obligation on the
University to issue a fresh mark sheet, nor does Mishra have any right to
obtain a fresh mark sheet from the University merely because his marks had
improved in the repeat examination. The submission of learned counsel does
not advance Mishra’s case in any manner.
16. The High Court concluded that the word “division” includes marks
also. We are unable to accept this conclusion. It is quite clear from a
reading of Clause 8 of the Ordinance that there are three divisions that a
student can obtain on the basis of the aggregate marks: those obtaining
more than 60% aggregate marks are placed on the first division; those
obtaining less than 60% aggregate marks but not less than 48% aggregate
marks are placed in the second division and all other successful candidates
obtaining less than 48% marks (and obtaining at least 36% aggregate marks)
are placed in the third division. If the word “division” is to include
marks, as held by the High Court, some of the clauses in the Ordinance
would lose their substance and meaning and the entire concept of divisions
as against marks would be rendered meaningless.
17. Learned counsel for Mishra pointed out that Clause 9 (ii) of the
Ordinance provides that the results of candidates obtaining less than 48%
of the aggregate marks taken together shall not be declared. It was
submitted on this basis that the results of candidates obtaining more than
48% in the aggregate taken together (such as in Mishra’s case) shall be
declared. It is difficult to accept the relevance of this contention since
it is not in dispute that Mishra’s results were declared in the first
instance and the marks obtained by him in the repeat examination were
communicated.
18. Ordinance No. 24 entitles a student to take a repeat examination only to improve the division obtained. If there is no improvement in the division after the repeat examination, there is no occasion for the University to issue a fresh degree to that candidate. The question of issuing a fresh mark sheet, if there is an improvement in the marks after the repeat examination, simply does not arise from the plain language and scheme incorporated in Ordinance No. 24.
19. Under these circumstances there is no option but to set aside the Judgment and Order passed by the High Court and allow this appeal. We do so but with no order as to costs.
…..……………………..J.
(R.M.Lodha)
….……………………..J.
New Delhi; (Madan B. Lokur)
August 16, 2013
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.……6794……….. OF 2013
(Arising out of SLP(C) No. 14896 OF 2013)
Pt. Ravishankar Shukla University & Anr. …..Appellants
Versus
Gopal Mishra …..Respondent
J U D G M E N T
Madan B. Lokur, J.
1. Leave granted.
2. In the judgment under appeal, the High Court of Chhattisgarh framed
the following question for adjudication, namely:-
“Whether Pandit Ravishankar Shukla University, Raipur (the
University) is liable to issue mark sheet to the students, who
are permitted to appear in the examination for improving
division of M.Com examination (the subsequent-examination) under
Ordinance 24 of the University (the Ordinance), even if the
division does not change?”
3. The High Court answered the question in the affirmative. We
disagree. Ordinance No.24 of the University does not oblige it to issue a
fresh mark sheet to a student who does not improve his division on taking a
subsequent examination held for improving the division.
4. The respondent Shri Gopal Mishra completed his two year Master of
Commerce course with an aggregate of 49.54% marks. This placed him in the
second division as per Ordinance No. 24 of the University which relates to
the Master of Commerce examination.
5. The Ordinance is in the nature of a composite scheme for obtaining a
degree of Master of Commerce. It provides, inter alia, for improving the
division obtained by a student based on the aggregate percentage of marks
obtained by him/her by taking a repeat examination without attending a
regular course of study in a college affiliated to the University or in a
teaching department of the University.
6. The relevant clauses of the Ordinance relating to the division that
may be obtained by a student and the procedure for improving the division
obtained by him or her are given in Clauses 7, 8 and 9 of the Ordinance.
These read as follows:-
“7. For both the Previous and Final examination a candidate
will be declared successful if he/she obtains at least 36% of the
aggregate marks in the subject.
No division will be assigned on the result of the
previous examination. The division in which a candidate is placed
shall be determined on the basis of aggregate of marks obtained
in both the M. Com Previous and M. Com Final Examination.
8. Successful candidates who obtain 60% of more of the
aggregate marks shall be placed in the First Division, those
obtaining less than 60% but not less than 48% in the Second
Division and all other successful candidates obtaining less than
48% in the Third Division.
9. Candidates who have passed the M.Com examination of the
University in Third or Second Division and desire to appear at
the M.Com examination for improving division may, without
attending a regular course of study in a college affiliated to
the University or in a Teaching Department of the University be
allowed to appear at the aforesaid examination as non collegiate
student on the following conditions.
i) There shall be only two division for such candidates i.e.
First Division and Second Division. The marks required for
obtaining these divisions shall be the same as prescribed
in the Ordinance i.e. examinees who are successful in final
of the examination and have obtained 60% or more of the
aggregate of the marks in Previous and Final of the
examinations taken together shall be placed in the First
Division and examinees who are successful in Final of the
examination and have obtained less than 60% but not less
than 48% of the aggregate marks in Previous and Final of
the Examination taken together shall be placed in the
Second Division.
ii) The results of the candidates obtaining less than 48% of
the aggregate marks in Previous and Final of the
examination taken together shall not be declared.
iii) Candidates shall have the option to appear at both the
Previous and Final Examination in one and the same year and
for being successful at the examination, the candidates
shall obtain 48% of the aggregate marks.
Provided that such candidates who opt to appear in Previous
and Final Examinations separately shall have to obtain
minimum aggregate required for the Previous examination but
he will have to obtain at least 48% in the aggregate of the
Previous and Final examinations taken together or else his
result will be cancelled.
iv) The syllabus for the examinations shall be the same as
prescribed for the year in which the examination is held.
v) Not more than two attempts shall be allowed to such
candidates. Failure or non-appearance at the examination
after permission has been accorded by the University, shall
be counted as an attempt.
Provided however such candidates who opt to appear at the
Previous and Final examinations separately will be allowed
one attempt at the Previous examination and two attempts at
the Final examination.
vi) Candidates who wish to avail the opportunity given in
foregoing para’s will have to apply for permission as
required in the Ordinance relating to Admission of non-
collegiate students to the University examination along
with requisite Registration Fees.
vii) In case a student improves his division under provision of
this para, the fresh degree will be issued after cancelling
his first degree.”
7. As mentioned above, Mishra obtained 49.54% marks which places him in
the second division. Since he was desirous of improving his division by
obtaining a first division, he appeared in a repeat examination as a non-
collegiate student in March 2010. After he took the examination, his
result was not declared. This led him to file a writ petition in the High
Court of Chhattisgarh for a declaration of his result and for the issuance
of a mark sheet based on the result of the repeat examination. The writ
petition was disposed of by a learned Single Judge by an order dated 29th
September, 2011 in which it was held, inter alia, that in the present age
of transparency there is no reason to conceal the marks obtained by Mishra
in the repeat examination. Accordingly, a direction was given to the
University to supply the marks obtained by Mishra in the repeat examination
held in March, 2010.
8. In compliance with the orders passed by the learned Single Judge the
University did intimate to Mishra the marks he had secured in the repeat
examination, but that was in the form of a letter. No formal mark sheet was
issued to him.
9. Mishra was of the view that the University had committed contempt of
the orders of the learned Single Judge by not issuing a fresh mark sheet.
Accordingly, he moved a contempt petition which was dismissed by the
learned Single Judge on 31st January, 2012 holding that the University was
obliged only to intimate the marks obtained by Mishra but was not obliged
to issue a fresh mark sheet.
10. In view of the above, Mishra filed another writ petition in the High
Court, for the issuance of a fresh mark sheet. That writ petition was
withdrawn on 3rd September, 2012 with liberty to take recourse to such
other forum as may be available to him under the provisions of law.
11. Mishra then filed an application for review of the order dated 29th
September, 2012 passed in the writ petition. The application came to be
disposed of by the learned Single Judge on 16th January, 2013, inter alia,
with the following observations:-
“By this petition, the petitioner seeks modification of the order
dated 29.09.2011 to the extent that the respondent University be
directed to issue a fresh/new mark sheet to the petitioner for the
repeat M.Com (Previous & Final) examination. This tantamount to
attempt of the petitioner to seek opportunity to argue the entire
case afresh under the garb of review petition, which is not
permissible and tenable in law. This review petition is in the
nature of appeal, which cannot be considered and decided by this
Court”.
12. Thereafter, Mishra preferred an intra-court appeal against the order
dated 29th September, 2012 and the order dated 16th January, 2013. The
appeal was disposed of by the Division Bench of the High Court by the order
under appeal dated 20th February, 2013.
13. In our view, Ordinance No. 24 prescribes a scheme which, inter alia
enables a student to improve the division obtained by him or her in the
Master of Commerce examination. The Ordinance does not postulate giving
the student an opportunity merely for improving the marks without any
improvement in the division obtained. Were this so, the language of the
Ordinance would have been explicit and would have clearly spelt out that a
student could appear in a repeat examination not only for the purposes of
improving the division obtained by him or her but even for the purposes of
improving the marks.
14. Factually, Mishra improved upon the marks earlier obtained by him.
But he did not improve his division despite the improvement in marks.
Since Mishra did not improve his division, he was not entitled to a fresh
degree in terms of Clause 9 (vii) of the Ordinance. As mentioned above, the
Ordinance does not postulate any obligation on the University to issue a
fresh mark sheet.
15. Learned Counsel sought to draw support from the conclusion of the
High Court that nothing prohibited the University from issuing a fresh mark
sheet. While this may be so, there is equally no obligation on the
University to issue a fresh mark sheet, nor does Mishra have any right to
obtain a fresh mark sheet from the University merely because his marks had
improved in the repeat examination. The submission of learned counsel does
not advance Mishra’s case in any manner.
16. The High Court concluded that the word “division” includes marks
also. We are unable to accept this conclusion. It is quite clear from a
reading of Clause 8 of the Ordinance that there are three divisions that a
student can obtain on the basis of the aggregate marks: those obtaining
more than 60% aggregate marks are placed on the first division; those
obtaining less than 60% aggregate marks but not less than 48% aggregate
marks are placed in the second division and all other successful candidates
obtaining less than 48% marks (and obtaining at least 36% aggregate marks)
are placed in the third division. If the word “division” is to include
marks, as held by the High Court, some of the clauses in the Ordinance
would lose their substance and meaning and the entire concept of divisions
as against marks would be rendered meaningless.
17. Learned counsel for Mishra pointed out that Clause 9 (ii) of the
Ordinance provides that the results of candidates obtaining less than 48%
of the aggregate marks taken together shall not be declared. It was
submitted on this basis that the results of candidates obtaining more than
48% in the aggregate taken together (such as in Mishra’s case) shall be
declared. It is difficult to accept the relevance of this contention since
it is not in dispute that Mishra’s results were declared in the first
instance and the marks obtained by him in the repeat examination were
communicated.
18. Ordinance No. 24 entitles a student to take a repeat examination only to improve the division obtained. If there is no improvement in the division after the repeat examination, there is no occasion for the University to issue a fresh degree to that candidate. The question of issuing a fresh mark sheet, if there is an improvement in the marks after the repeat examination, simply does not arise from the plain language and scheme incorporated in Ordinance No. 24.
19. Under these circumstances there is no option but to set aside the Judgment and Order passed by the High Court and allow this appeal. We do so but with no order as to costs.
…..……………………..J.
(R.M.Lodha)
….……………………..J.
New Delhi; (Madan B. Lokur)
August 16, 2013
