Rupa Majumdar Vs State

1. The appeal is treated as on day''s list and is being simultaneously disposed of along with CAN 4798 of 2010.

...And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine...

2. The aforesaid finding of Hon''ble Justice V. R. Krishna Iyer in the case of Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, , requires to be applied in the fact situation of the present case where a perfectly reasoned and justified order returned by the Hon''ble Single Judge on 29th April, 2010 in connection with W.P. 1680 (W) of 2010 has been carried in appeal.

3. Before us is the candidate and her mother who is appearing in person feels that the appellant No. 1 has been wronged at every stage of her academic career in the Medical College and that she has been stagnated in the fashion that she has shown from the various averments made in the memo of appeal as well as the writ application filed before the Court. According to the appellant No. 2, that out of spite the respondent authorities have purposely declared the appellant No. 1 unsuccessful and have implicated her in one after another imbroglio which has resulted in her being static in the first year whereas her peer level have cleared the examination by this time.

4. Furthermore it was the case of the appellant No. 2 that for successive period the appellant No. 1 has been prevented from clearing the examination by a short fall of one or two marks which is not possible as her papers have not been properly assessed.

5. The appellant No. 2 who appears in person and argues for appellant No. 1 has been heard at length by us. Keeping in view the fact that the appellants are not represented by any member of the Bar although we had offered them such assistance on a previous occasion, we heard the matter with added anxious consideration lest something may be left out on account of a non-professional approach of non-lawyer appellants.

6. Learned Additional Government Pleader for the respondent No. 6 has placed before us the finding of the learned Trial Court and submitted that there has been a fair play in the process but since academically the candidate could not justify her presence she was dealt with in the manner that has surfaced through the averments which has been accorded to her.

7. Learned Additional Government Pleader further has invited our attention to the report of the Vice-Chancellor (the respondent No. 1) who had submitted his report in terms of the order passed by the Division Bench earlier on 7th June, 2010 and submitted that in view of the entire situation that has surfaced through the report there remains no cause of grievance for the appellants and the allegation that the respondents taking spite on the candidate is also baseless.

8. Sri Roy learned Counsel appearing for the respondent Nos. 1 to 5 has adopted the submission of the Additional Government Pleader. On a perusal of the report submitted by the respondent No. 1 he has submitted that additional care has been taken by the respondent No. 1 that in the event if the candidate feels that there is any source of apprehension that she was not given a fair deal in the coming examinations, observer would be sent from his end which according to Sri Roy takes care of the situation in the wholesome fashion.

9. We have carefully gone through the entire bundle of materials that has surfaced before us through the bunch of papers of the writ application as well as the various order sheets and the annexure that have been placed before us in course of the hearing of this appeal.

10. Firstly we find that the learned Trial Court has sought for production of the papers. His Lordship found that no infirmity in the marking or any error in totalling of marks on the basis of the perusal of the answer scripts. On the basis of exchange of affidavits the said writ petition being W.P. 1680 (W) of 2010 was dismissed, however with a rider that dismissal of that instant writ application will have no prejudice upon the appellant No. 1 for prosecuting her studies in the Medical College.

This saw her in appeal.

11. The predecessor Division Bench felt the necessity of the presence of the respondent No. 1 for rendering necessary assistance to resolve the issue raised in the appeal. In terms thereof we find the respondent No. 1 (the Vice-Chancellor) was asked to visit the chamber of the then Presiding Judge of the Division Bench and a report being Memo No. OG/UHS/751/2010 dated 23rd June, 2010 was filed containing the re-examination of the answer-scripts by Professor Debjani Chakraborti in respect of the paper of Physiology, Professor Ranjan Bose in respect of the paper of Biochemistry and Professor Niranjan Ganguly in respect of the paper Anatomy. Thereafter the matter was adjourned and with the change of determination, we were in seisin of the same and when we took up this matter on Board, had requested the appellants to cause fresh service as the respondent Nos. 1 to 5 was not appearing and in such trajectory we have heard out the matter in extenso in presence of the appellants, learned Additional Government Pleader and Sri Roy for the respondent Nos. 1 to 5.

12. The question that falls for consideration in this intra-Court appeal is that as to whether each and every order passed by the learned Single Judge can be tested in appeal? After all we are also exercising the power of extended judicial review of another constitutional Forum.

13. In the event we abide by the decision of the Supreme Court in the case of Gujarat Steel Tubes Ltd Etc. vs. Gujarat Steel Tubes Mazdoor Sabha & Ors. (supra) which has been subsequently followed by another decision of the Supreme Court in the case of Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, , where Their Lordships have also held "... It is now well-settled that a Court of Appeal should not ordinarily interfere with the discretion exercised by the Courts below..." in our opinion, there is little scope for us to interfere with the well reasoned finding which has been returned by the Hon''ble Single Judge. Now since we have found that the appellant No. 2 is appearing in person and arguing for the appellant No. 1, to allay her fear that she has been left out and that her case has not been properly represented, we have heard out the matter with additional care and caution in our own way and we would also deal into the merits spreading out from the ratio of the decisions of the Supreme Court stated above which otherwise has rendered the appeal infructuous on the aforesaid score. Now before us is the report of the respondent No. 1 appended by eminent personalities in the field like Professor and Head of the Department of Medicine of IPGMER and Professor of Anatomy and the Professor of Physiology who have reassessed the answer-scripts and have returned their findings. The Vice Chancellor (the respondent No. 1) Professor Deb also had given his own finding in the memo aforesaid and since it was not circulated earlier, we have requested the appellants, learned Additional Government Pleader as well as the learned Counsel for the respondent Nos. 1 to 5 for a bare perusal of the same. We find that Professor Deb (the respondent No. 1) has concluded on the basis of the opinion of the experts that "... She was asked to meet the undersigned. She came on 23.6.2010. She has been advised to absorb herself in her studies. She has been stated that she should not feel that she is being discriminated by students, teachers or any other connected with the college. She has been advised that if she felt that she was not given fair deal in the coming examinations, observer would be sent from this end..."

14. We wonder what more we can expect in view of such magnanimous gesture by the apex body of the institute which holds the examination. This portion of the report in terms of the order passed by the Division Bench on 7th June, 2010 is only to allay the fear or purported apprehension of the appellants that she is being discriminated or that she is being singled out which, in our opinion, is absolutely baseless if we may venture to say so.

15. That apart we are not competent to assess the valuation of the papers in respect of Anatomy, Physiology and Medicine which have already been examined by the eminent experts in the field of distinguished Government Colleges of the city. We feel it should be thus far and no further. Having a wholesome appreciation of the entire backdrop of the situation, we would be of the view that while the appeal would deserve no merit, it would be well advisable for the appellant No. 1 to reconcile to her fate and as advised by Professor Deb to concentrate on her studies and retrieve her lost years for a better future being oblivious of the past incidents for which Professor Deb have already in writing given some assurance, we feel there is nothing more to proceed any further.

No order as to costs.

16. After we had dictated and pronounced the aforesaid judgment in the open Court in presence of the various parties, the appellants have reiterated their concern that the candidate would be discriminated in the event she studies for the examination.

17. Sri Roy submits that already this portion have been covered by the report of the Vice Chancellor (respondent No. 1). However, by way of added precaution in addition to our above order if such situation actually occurs, in that event necessary steps what is known to procedure can be adopted by the appellants as suggested by the respondent No. 1 in his report.

18. In view of the order passed in this appeal, the application for stay stands disposed of.