Bombay HC sets aside the SIC order to Pune University to delete/correct its circular
The management council of Savitribai Phule Pune University had approved two ordinances on Septemeber 19, 2013 184(A) and 184(B) regarding the new re-evaluation scheme and supply of photocopies of assessed answer sheets following which the vice-chancellor Mr. W N Gade had issued a circular on November 1, 2013. As per one of the clauses of the circular No. 239 of 2013, the students were could seek the photocopies of evaluated or re-evaluated answer sheets within 10 days from the date of declaration of the results only. The Annexure A to the Circular No. 239 of 2013 concerned with the supply of photocopies of assessed answer books, fee structure, terms of supply, revaluation of answer books of theory papers, fee structure, the terms thereof and also the general terms in such matters.
Vivek Velankar had approached the State Information Commission (SIC) in November 2013 with a complaint that the circular was against the RTI Act and also violated the law laid down by the Supreme Court in the case of CBSE v. Aditya Bandopadhyay and others. He objected to three provisions of the circular (clauses 1(iv), 3 (iii) and 3 (xiii) of Annexure A of Circular No. 239 of 2013 on) the narrow 10 day window provided and also the provisions in the circular that:-
· the examiner shall be the sole custodian of the photocopies supplied and
· the university shall not be responsible for failure or delay in supply of photocopies for reasons beyond its control.
It was contended that in view of a Supreme Court ruling that provided for a 90-day period, the clause was not fair. The SIC directed the university to delete or correct these three clauses vide an order dated December 27, 2013. The said clauses are reproduced below.
SUPPLY OF PHOTO COPY(IES) OF ASSESSED ANSWER BOOK(S)
1) Procedure for submission of Application for Supply of Photo Copy(ies) of Assessed Answer Book(s) :
iv) Application for obtaining photo copy(ies) of evaluated / reevaluated answer book(s) shall be submitted by the examinee, along with the requisite fees, within ten days from the date of declaration of results of the examination concerned. An examinee whose result has been withheld for any reason, whatsoever, and against whom case of resorting to unfair means is reported or is under investigation / consideration, shall submit his application for photo copy(ies) of assessed answer book(s), along with the requisite fees within ten day from the date of declaration of his result of the examination concerned.”
“3) Terms Relating to Supply of Photo Copy(ies) of Assessed Answer Book(s) :
iii) The examine shall be sole custodian of the photo copy(ies) so supplied and shall not transfer the same to anybody for any purpose, whatsoever. The examinee shall further refrain himself from putting such photo copy(ies)
to any misuse that might jeopardize the reputation of the University.”
“(xiii) The University shall not be liable for failure or delay in supplying photo copy(ies) of evaluated / reevaluated answer book(s) due to any reason beyond the control of the University.”
A petition was filed in the Bombay high court contending that :-
1. The clauses in question cannot be read in isolation, but have to be read and construed in light of a scheme of revaluation provided therein.
2. The SIC in exercise of powers under Section 18 of the RTI Act, has no jurisdiction to issue directions for the deletion / correction of circular issued by the Vice Chancellor in exercise of statutory powers under Section 14(8) of the Maharashtra Universities Act, 1994.
The opposing counsel argued that the SIC has sufficient powers, both under Sections 18 as well as 19 of the RTI Act to require a public authority to take such steps as may be necessary to secure compliance with the provisions of the RTI Act, including inter alia by making necessary changes to its practices in relation to maintenance, management and destruction
Justice M. S. Sonak of the Bombay High Court observed that “In the case of Maharashtra State Board of Secondary and Higher Secondary Education & Anr. vs. Paritosh Bhupeshkumar Sheth & Ors., in the context of provisions for revaluation in the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977, the Hon'ble Apex Court has held that it is the duty cast on the State Board to formulate its policy as to how the examinations are to be conducted, how the evaluation of performance of candidate is to be made and by what procedure results are to be finalised, complied and released. The responsible representative body entrusted with power to take policy decision in such matters and to make byelaws must ordinarily be presumed to know what is necessary, reasonable, just and fair. The Courts should be extremely reluctant to substitute its opinions and views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual daytoday working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate, if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also as far as, avoid any decision or interpretation of the statutory provision, rule or byelaws which would bring about rendering unworkable in practice.”
The bench ruled that “The complaint made by respondent No.2 cannot be said to be a complaint which falls within any of the predicates of Section 18 of the RTI Act. If, however, the ominibus clause contained in Section 18(1)(f) of the RTI Act is stretched and the complaint is regarded as one under Section 18 (1) of the RTI Act, there is still no power to be found in Section 18 of the RTI Act, under which the directions for 'deletion/correction' of Circular No.239 of 2013 issued by the Vice Chancellor in exercise of powers conferred upon him by Section 18(8) of the M.U. Act can be issued. The directions issued also cannot relate to the provisions contained in Section 19(8) of the RTI Act, which incidentally concerns the appellate jurisdiction of the SCIC, which it was admittedly not exercising whilst entertaining the complaint made by respondent No.2. Section 19(8) of the RTI Act, in any case empowers the SCIC to require public authority to take any such steps as may be necessary to secure compliance with the provisions of RTI Act, including by making necessary changes to its practices in relation to maintenance, management and destruction of records. As noted earlier, Annexure A to Circular No.239 of 2013 deals with scheme of reevaluation of answerbooks and in that sense has no nexus with the rights of any person to obtain photocopies of answerbooks simplicitor by resort to the provisions of RTI Act. Even a constitutional Court after record of conclusion as to unconstitutionality of a legislative or a quasi legislative exercise would normally strike down the same, but refrain from directing 'deletion/correction'. In such circumstances, the directions issued for 'deletion/correction' are clearly in excess of jurisdiction.”
The SIC order was set aside with the observations that it was clearly in excess of the jurisdiction.
Citation:The University of Pune v. State of Maharashtra & Ors in Writ Petition No. 310 of 2014