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PETITIONER: MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARYEDU

       Vs.

RESPONDENT: PARITOSH BHUPESH KUMAR SHETH ETC.

DATE OF JUDGMENT17/07/1984

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) DESAI, D.A.

CITATION:  1984 AIR 1543            1985 SCR  (1)  29  1984 SCC  (4)  27        1984 SCALE  (2)30  CITATOR INFO :  F          1984 SC1584  (1)  R          1992 SC   1  (63)

ACT:      Education  laws-Right  to  demand  by  an  examinee  an inspection, verification  and revaluation  of answer  books- Constitutional  validity   of  Regulation   104(3)  of   the Maharashtra Secondary  and Higher Secondary Education Boards Regulations,  1977   negativing  such   rights-Principle  of natural justice  under education  laws,  explained-Delegated legislation  and   Court  power   to   interpret-Maharashtra Secondary and  Higher Secondary Boards Act, 1965 Sections 19 and 36-Rules  of interpretation  of Rules  and  Regulations, explained.

HEADNOTE:      In exercise  of the  powers conferred  by Section 36 of the Maharashtra  Secondary and  Higher Secondary Boards Act, 1965, the  State Board  has framed the Maharashtra Secondary and Higher  Secondary Education  Boards’  Regulations  1977. These regulations  were sanctioned  by the  State Government under sub-section  3 of  section 36  on 11th  July, 1977 and came into  force on  15th June, 1977. These regulations were applied to  the Secondary School Certificate examination and Higher Secondary  Certificate examination  held in  October, 1977 and thereafter Regulation 104 refers to verification of marks obtained  by a  candidate in  a  subject.  Clause  (1) thereof restricts  verification to  checking whether all the answers have  been examined  and  that  there  has  been  no mistake in  the totalling of marks for each question in that subject and  transferring marks correctly on the first cover page of the answer book and whether the supplements attached to the  answer book  mentioned by the candidate are in tact. Clause  (1)   also  speaks   of  revaluation  and  prohibits revaluation of  the answer  books or supplements. Clause (3) of the  said  regulation  also  speaks  of  right  to  claim revaluation by  an  examinee  and  is  to  the  effect:  "no candidate shall  claim, or be entitled to revaluation of his answer or  disclosure or  inspection of  the answer books or other documents as these are treated by the Divisional Board as most confidential.      A number  of unsuccessful  and disappointed  candidates

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who had 30 appeared for  the Higher Secondary Certificate and Secondary School Certificate  public  examinations  conducted  by  the Divisional Boards  functioning  under  the  supervision  and control of  the Maharashtra  State Board  of  Secondary  and Higher  Secondary   Education  filed  a  batch  of  39  Writ Petitions in  the  High  Court  of  Bombay  challenging  the validity of  Clauses (1)  and (3)  of regulation  104 of the Maharashtra Secondary  and Higher Secondary Education Boards Regulations 1977 and seeking the issuance of writs directing the Board  to allow  them disclosure and inspection of their answer books  in the public examination, the results whereof had already  been published  and to conduct a revaluation of such of  the answer  papers as  the petitioners  may  demand after the inspection.      The writ petitioners had based their challenges against the validity  of clauses  (1) and  (3) of  Regulation 104 on three main  grounds:-(1) The Impugned clauses were violative of the  principles of  natural justice; (2) Both clauses (1) and (3)  were ultra  vires and  void on  the ground of their being in  excess of  the regulation making, powers conferred on the  Board by Section 36 of the Act; and (3) The impugned provisions contained  in clauses  (1) and  (3)  were  highly unreasonable and  since the  regulations framed by the Board are in  the nature of bye-laws. they are liable to be struck down on the ground of unreasonableness      The High  Court divided  the Writ  Petitions  into  two groups; the  first group consisting of cases where the right of inspection  alone was claimed and second group comprising of cases  where the  petitioners had  claimed also a further right to demand a revaluation of the answer papers. The High Court allowed the petitions by two separate judgments one in respect of  the first  group  holding  that  clause  (3)  of regulation 104  which lays  down that  no candidate shall be entitled to  disclosure or inspection of the answer books or other  documents   as  these  are  to  be  treated  as  most confidential is  ultra vires  on the  ground of its being in excess of  the regulation  making power  of the Board and by another judgment  in  the  second  group  holding  that  the provisions contained in clause (1) of regulation 104 that no revaluation of the answer books or supplements shall be done is ultra  vires the  regulation making  power  conferred  by section 36 and is also illegal and void on the ground of its being manifestly  unreasonable. Aggrieved by these judgments rendered in  the two  groups of  cases the  appellant  Board preferred these appeals after obtaining Special Leave of the Court.      Allowing the appeals, the Court ^      HELD:  1:1.   Regulation  104(3)   of  the  Maharashtra Secondary and 31 Higher  Secondary  Board  Regulations  1977  is  valid.  The process  of   evaluation  of  answer  papers  or  subsequent verification of  marks under  clause (3)  of regulation  104 does not  attract the principles of natural justice since no decision making  process which  brings about  adverse  civil consequences to the examinees is involved. Non-disclosure or disallowance of  the right of inspection of the answer books as well  as denial  of the right to ask for a revaluation to examinees who are dissatisfied with the results do not visit them with  adverse civil consequences. There is no substance in the contention that every adverse verification involves a condemnation of the examination behind their back and hence.

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constitutes a  clear  violation  of  principles  of  natural justice.[62E, 41D-E, F-G]      1:2.  The  principles  of  natural  justice  cannot  be extended beyond reasonable and rational limits and cannot be carried into  such absurd  lengths as  to make  it necessary that candidates  who have  taken a public examination should be allowed  to participate  in the  process of evaluation of their performances  or to  verify  the  correctness  of  the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been  a proper  and fair valuation of the answers by the examiners. [41H; 42A]      Union of  India v.  M.L. Kapur,  [1974] 1  S.C.R.  797; referred to.      2:1.  The   question  whether  a  particular  piece  of delegated legislation  whether a rule or regulation or other type of  statutory instrument-is  in excess  of the power of subordinate legislation  conferred on the delegate has to be determined with  reference only  to the  specific provisions contained in  the relevant  statute conferring  the power to make the  rule, regulation  etc. and  also  the  object  and purpose of  the Act  as can  be gathered  from  the  various provisions of the enactment. [43 A-B]      2:2. The  Court cannot  substitute its  own opinion for that of the legislature or its delegate as to what principle or policy  would best  serve the  object and purposes of the Act and  it cannot  sit in  judgment  over  the  wisdom  and effectiveness or  otherwise of  the policy  laid down by the regulation making  body and declare a regulation to be ultra vires merely  on the  ground that,  in the view of the Court the impugned  provisions will  not help  to serve the object and purpose  of the  Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of  the authority  conferred on  it, in the sense that the rules  or regulations  made by  it have a rational nexus with the object and purpose of the statute, the Court should not concern  itself with  the wisdom  or efficatiousness  of such rules  or regulations.  It is  exclusively  within  the province of the legislature and its delegate to determine as a matter  of policy,  how the  provisions of the statute can best be implemented and what measures, 32 substantive  as   well  as   procedural  would  have  to  be incorporated in the rules or regulations for the efficacious achievement of  the objects  and purposes  of the Act. It is not for  the Court to examine the merits or demerits of such a policy  because its  scrutiny has  to be  limited  to  the question as  to whether the impugned regulations fall within the scope  of the  regulation making  power conferred on the delegate by the statute. [43 C-F]      3:1. The  view taken  by the High Court that clause (3) of the  regulation 104  is ultra  vires on the ground of its being in  excess of the regulation making power conferred on the Board is not correct. [45-B]      3.2. Any drawbacks in the policy incorporated in a rule or regulation  will not  render it ultra vires and the Court cannot strike  it down  on the ground, that, in its opinion, it is  not a wise or prudent, but is even a foolish one, and that it  will not really serve to effectuate the purposes of the Act.  The legislature  and its  delegates are  the  sole repositories of  the power  to decide  what policy should be pursued in  relation to matters covered by the Act and there is no  scope  for  interference  by  the  Court  unless  the particular provision  impugned before  it  can  be  said  to suffer from  any legal  infirmity, in the sense of its being

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wholly beyond  the scope  of the  regulation making power or its being  inconsistent with  any of  the provisions  of the parent enactment  or in  violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case.  [46E-F]      3:3. The  provisions of  sections 19  and 36 of the Act make it  clear that  a duty  is cast  on the  State Board to formulate its  policy as  to how  the examinations are to be conducted, how  the valuation  of the  performances  of  the candidates is to be made and by what procedure there results are to  be finalised,  compiled and released it is perfectly within the competence of the Board, rather, it was its plain duty, to  apply its  mind and  decide as  a matter of policy relating to  the conduct  of the  examination as  to whether disclosure and  inspection of  the answer  books  should  be allowed to  the  candidates,  whether  and  to  what  extent verification of  the result  should be  permitted after  the results have  been announced  and whether any right to claim revaluation of  the answer  book  should  be  recognised  or provided for.  All these  are undoubtedly matters which have an intimate  nexus with  the objects  and  purposes  of  the enactment and  are,  therefore,  within  the  ambit  of  the general power to make regulations conferred by sub-section 1 of section 36, and also within the scope of clauses (c), (f) and (g)  of sub-section 2 of the said section. [44F-H, 45 A- B]      4:1. Clause  (3) or Regulation 104 is not in the nature of a bye-law and it is not an unreasonable provision. [46 H] 33      4:2. While  the  power  to  make  regulations  for  the purpose of  carrying into  effect the provisions of the Act, is conferred  on the Board by section 36, section 38 confers a distinct  power of making bye-laws. The legislature, while enacting sections  36 and  38 must  be assumed  to have been fully aware  of the niceties of the legal position governing the distinction between rules/regulations properly so called and bye-laws.  When the  statute contains a clear indication that the  distinct regulation  making power  conferred under section 36  was not  intended as  a power  merely  to  frame byelaws, it  is not open to the Court to ignore the same and treat the regulations made under section 36 as mere bye-laws in order to bring them within the scope of justifiability by applying the test of reasonableness. [47 E-G]      4.3. Regulations made by the Board under section 36 are in the  nature of  statutory rules  and they  have the  full rigour and  force of  sub-ordinate  legislation  made  by  a delegate duly  empowered in  that behalf by the legislature. [49 D-E]      Sophy  Kelly   v.  The   State,  69  Bombay,  L.R.  186 overruled.      5:1. The  provisions contained in a statutory enactment or in  rules/regulations framed  thereunder have  to  be  so construed as  to be  in harmony  with each  other and  where under a  specific section  or rule  a particular subject has received special  treatment,  such  special  provision  will exclude the  applicability of  any general  provision  which might otherwise cover the said topic. [52 B-C]      5.2. Regulation  102(2), if  properly construed  in the setting in  which it occurs only confers a suo motu power on the Divisional  Board to amend the result of the examination in respect of any candidate or candidates on its being found that such  result has  been affected  by error, malpractice, fraud, improper  conduct, etc.  The error referred to in the said provision  has the  context to  be understood  as being limited to  an error  rising in  consequence of malpractice,

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fraud,  improper   conduct  or   other  similar   matter  of whatsoever nature.  Clauses (1)  and (3)  of regulation  104 must be  read together  and not  in isolation. Clause (3) of regulation 104  contains is fact a mandate to the Divisional Boards  to   treat  the   answer  books   and  documents  as confidential and  lays  down  that  no  candidate  shall  be entitled to  claim disclosure  or  inspection  of  the  said confidential books  and documents. Therefore, the High Court ought not  to have invoked the doctrine of implied power and obligation, in  the instant case, for the purpose of holding that because the right of verification has been conferred in clause (1)  of regulation  104, there is an implied power in the examinees  to demand  disclosure and  inspection  and  a corresponding implied obligation on the part of the Board to cause such a demand. [52 C-D, H; 53 A; C-D] 34      5:3. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable or partial in i s operation, even a  bye-law cannot  be struck  down by  a Court  on  the ground of  unreasonableness merely  because the Court thinks that it  goes further  than is necessary or that it does not incorporate certain  provisions which, in the opinion of the Court, would  have been  fair and wholesome. The responsible representative body  entrusted with  the power  to make bye- laws must  ordinarily be presumed to know what is necessary, reasonable, just  and fair.  The Court  should be  extremely reluctant to  substitute its  opinions and  views as 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 day-to-day  working  of  educational  institutions  and  the departments  controlling  them.  The  Court  cannot  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  The Court  should also,  as far  as possible, avoid  any   decision  or   interpretation  of  a  statutory provision, rule  or bye-law  which  would  bring  about  the result of  rendering the  system unworkable in practice. [53 F-H; 55 A]      Trustees of  the Port  of Madras  v. Aminchand Pyarelal and ors. [1976] 1 SCR 721 referred to.      Kruse v.  Johnson [1898]  2 Q.B. and Slattery v. Naylor [1888] 3 A.C. 446 quoted with approval.      6:1. What  constitutes fair play depends upon the facts and  circumstances   relating  to   each  particular   given situation. If it is found that every possible precaution has been taken  and all  necessary safeguards provided to ensure that the  answer books  inclusive of supplements are kept in safe custody  so as  to eliminate  the danger of their being tampered with  and  that  the  evaluation  is  done  by  the examiners by  applying uniform  standards  with  checks  and cross checks  at different  stages  and  that  measures  for detection of  malpractice, etc.  have also  been effectively adopted, in  such cases,  it will not be correct on the part of the  Courts to  strike down  the  provisions  prohibiting revaluation on the ground that it violates the rules of fair play. Further,  the candidates  have taken  the  examination with full  awareness of  the  provisions  contained  in  the regulations and in the declarations made by them in the form of application  for admission  to the  examination they have solemnly stated  that they  fully  agree  to  abide  by  the regulations issued by the Board. [59 A-C; 60 F-G]

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    6:2. That  the University  of  Bombay  and  some  other Universities have 35 made provisions permitting candidates to demand revaluation, has little  relevance for  the purpose of deciding about the legal validity  of the  impugned regulations  framed by  the Board.  In  the  public  interest,  the  results  of  public examinations published should have some finality attached to them. If  inspection, verification,  in the  presence of the candidates and  revaluation are to be allowed as of right it may  lead   to  gross   delays  and  indefinite  uncertainly particularly in  regard to  the relative  ranking etc of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process. [60 H; 61 A-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 1653 to 1691 of 1980      Appeals by  Special leave  from the  Judgment and order dated the  28th &  29 July, 1980 of the Bombay High Court in Writ Petition Nos. 1906, 1772, 1799, 1838, 1885, 1923, 1925, 1926,1928, 1996-1998,  2005, 2060-65, 2076, 2099-2102, 2110, 2127, 1909,  1864, 1965, 1889, 1890, 1924, 1927, 2003, 2044, 2098, 2176, 2176, 2177 and 2179 of 1980      R, P.  Bhati, Soli J. Sorabjee, Ravi Kulkarni, Ravinder Narain, A.  N. Hasker,  D. N. Misra and Mrs. A. K. Verma for the Appellants.      S. S. Khanduja and Satya Prakash for the Respondents.      Dr. N. M. Ghatate for Respondent in CA. 1658/80.      P. H. Parekh and Miss Nisha Shrivastava for Respondents in CA. Nos. 1659 and 1684 of 1980.      V. N.  Ganpule and Mrs. V. D. Khanna, for Respondent in CA. 1685 of 1980.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. It  is  common  experience  that whenever the  results of  Public examinations  conducted  by School Boards  and Universities  or by other bodies like the Public  Service   Commission  a   e  announced,  amidst  the rejoicings of  successful candidates  who have  secured  the grade of  marks anticipated  by  them,  it  also  inevitably brings  with   it  a   long  trail  of  disappointments  and frustrations as the direct outcome of the non-fructuation of hopes  and  expectations  harboured  in  the  minds  of  the examinees based  on the  candidates own  assessment of their performance and  merit. Labouring under a feeling that there has not been a proper evaluation of their perfor- 36 mance in  the examination, they would naturally like to have a revaluation  of the  answer  books  and  even  a  personal inspection and  verification of the answer books for finding out whether  there has  been  a  proper  evaluation  of  the answers to all questions, whether the totalling of marks has been correctly done and whether there has been any tampering with the  seat numbers  written on  the answer books and the supplementary sheets.  The question  canvassed before  us in these appeals is whether, under law  a candidate has a right to demand  such an  inspection, verification and revaluation of answer books and whether the statutory regulations framed by the  Maharashtra State  Board  of  Secondary  and  Higher Secondary education  governing the  subject insofar  as they categorically state that there shall be no such right can be said to be ultra vires, unreasonable and void.

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    A  number  of  such  disappointed  candidates  who  had appeared for  the Higher Secondary Certificate and Secondary School Certificate  public  examinations  conducted  by  the Divisional Boards  functioning  under  the  supervision  and control of  the Maharashtra  State Board  of  Secondary  and Higher Secondary  Education-hereinafter called  ’the Board’- filed a  batch of  39 Writ  Petitions in  the High  Court of Bombay challenging the validity of Regulation 104 (3) of the Maharashtra Secondary  and Higher Secondary Education Boards Regulations 1977 and seeking the issuance of writs directing the Board  appellant  herein-to  allow  to  the  petitioners disclosure and  inspection of  their  answer  books  in  the Public examination,  the results  whereof had  already  been published and to conduct a revaluation of such of the answer papers as  the petitioners  may demand after the inspection. The High  Court divided  the Writ Petitions into two groups, the first  group consisting  of cases  where  the  right  of inspection alone was claimed and the second group comprising of cases  where the petitioners had claimed also the further right to  demand a  revaluation of the answer papers. Though all the  Writ Petitions  were heard  together by  a Division Bench consisting of V. S. Deshpande and V. A. Mohta, JJ, the two groups  were disposed of by separate judgments delivered on behalf  of the  Bench on the same day-28th July 1980. The first group  of Writ Petitions was disposed of by a judgment delivered by Deshpande, J speaking on behalf of the Division Bench. There  in it  was held  that clause (3) of Regulation 104 which  lays down  that no candidate shall be entitled to disclosure or  inspection  of  the  answer  books  or  other documents as these are to be treated as most confidential is ultra vires on the 37 ground of its being in excess of the regulation-making power of the  Board In the opinion of the Division Bench, the said provision cannot  be said  to serve  any purpose of the Act, but is,  on the  contrary, "defeasive"  of the  same. It was further held  that the impugned clause (3) of Regulation 104 to  the   extent  to   which  it  prohibits  disclosure  and inspection of the answer books and other connected documents on the  ground of confidentiality is unreasonable and liable to be struck down on that ground also. Accordingly, the High Court declared  clause (3)  of Regulation  14 to be void and allowed the  first group  of Writ Petitions by directing the Board to  allow inspection  of the answer books asked for by the petitioners  and  to  take  consequential  action  under clauses (4) to (6) of Regulation 104 when found necessary.      The main judgment in the second group of Writ Petitions was delivered  by  Mohta,  J,  holding  that  the  provision contained  in   clause  (1)   of  Regulation   104  that  no revaluation of  the answer books or supplement shall be done is ultra  vires the  regulation making  power  conferred  by Section 36 and is also illegal and void on the ground of its being manifestly  unreasonable. In  the view  of the learned Judge, inspection  and disclosure  will serve  no purpose in case  the  further  right  of  revaluation  was  denied  and inasmuch as  the right to disclosure and inspection had been recognised by  the judgment just then delivered in the first group of  Writ Petitions,  the conclusion had necessarily to follow that  the Board  was obliged to permit revaluation as well. On  this reasoning,  Regulation 104  (i) insofar as it prohibits revaluation  was declared void and a direction was issued to  the Board that in the case of those examinees who had applied  for revaluation,  such facility  should also be allowed. By  a separate  judgment, Deshpande,  J.  expressed serious doubts  and reservations  as to  whether  a  further

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right  of   revaluation  could   be  spelt   out  from   the regulations, but family agreed with the conclusion expressed by his  colleague stating thus: "rather than allow my doubts to prevail  and dissent,  I prefer  to agree with him in the above circumstances".  Aggrieved by these judgments rendered in the  two groups  of cases,  the Board has preferred these appeals before this Court after obtaining special leave.      The Maharashtra  Secondary and  Higher Secondary Boards Act, 1965  (for short, "the Act") has been passed to provide for the establishment of a State Board and Divisional Boards to regulate  certain matters  pertaining  to  secondary  and higher secondary  education in  the  State.  Section  3  (1) provides that the State Govern- 38 ment  shall,   by  notification  in  the  official  gazette, establish  a   Board  for   the  whole  State  by  the  name ’Maharashtra State  Board of  Secondary and Higher Secondary Education’. By  sub-section (2)  of the  same Section, it is further provided  that the State Government shall, likewise, establish a Board for each of the three divisions under such name as  may be specified in the notification. The appellant Board is  the State  Board constituted under sub-section (1) of Section 3.      The powers  and duties  of the  State Board  have  been enumerated in  clauses (a)  to (r) of Section 18 of the Act. Clause (a)  states that it shall be the duty of the Board to advise the State Government on matters of policy relating to Secondary or  Higher Secondary  education in  general.  Thus under the  scheme of  the Act,  the Board is to discharge an important  role  in  formulating  policies  on  all  matters relating to Secondary and Higher Secondary education. Clause (f) empowers  the Board  to prescribe the general conditions governing admission of regular and private candidates to the final examination  and to  specify the  conditions regarding the attendance  and character  on the fulfillment of which a candidate shall have a right to be admitted to and to appear at any such examination.      Section 19  deals with  the  powers  and  duties  of  a Divisional Board.  Under clause  (f) it  is the  duty of the Divisional Board  to conduct in the area of its jurisdiction the final  examination on  behalf of the State Board. Clause (g) empowers  the Divisional Board to appoint paper setters, translators, examiners,  moderators, supervisors  and  other necessary personnel  for conducting the final examination in the area  of its jurisdiction, for evaluation of candidates’ performance and  for compiling and release of the results in accordance with  such instructions  as the  State Board  may from time  to time  issue. Under clause (h) it is within the power of  the Divisional  Board to  admit candidates for the final examination  according to  the regulations made by the State Board  in this behalf. Clause (m) vests the Divisional Board with  power to  generally evaluate  the performance of students in all examinations in secondary schools and junior colleges including  the final examination and make necessary recommendations to the State Board in that behalf.      Section 36  (1) of  the Act empowers the State Board to make ’regulations’  for the  purpose of carrying into effect the provisions  of the  Act. Sub-section  (2)  states  that, without prejudice to generality of the foregoing power, such regulations may provide for any of the 39 matters enumerated  in clauses  (a) to  (n) thereof. Clauses (c), (d),  (f) and  (g) which  alone are  relevant  for  our present purpose are reproduced below:-           "(c) the  general conditions  governing, admission

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    of  regular   and  private  candidates  for  the  final      examinations, and  any particular  conditions regarding      attendance and character, on the fulfillment of which a      candidate shall  have a  right to be admitted to and to      appear at any such examination;"           "(d) the marks required for passing in any subject      and  the   final  examination   as  a  whole,  and  for      exemption, credit and distinction in any subject;"           "(f) the  arrangements for  the conduct  of  final      examinations by  the Divisional  Boards and publication      of results;"           "(g) the  appointment of  examiners, their  powers      and duties  in relation  to the  final examinations and      their remuneration;"      Sub-section (3) lays down that no regulation made under this section  shall have  effect until  the  same  has  been sanctioned by the State Government.      Section 38  has conferred on the State Board a distinct power to  make ’bye-laws’  consistent with  the Act  and the regulations made  thereunder. Such  bye-laws are  to provide for the  procedure to  be followed  at the  meetings of  the Board and  the Divisional Boards and the Committee appointed by any of them and the numbers of members required to form a quorum  at  such  meetings  and  any  other  matters  solely concerning the  Boards and their Committees not provided for by the Act and the regulations made thereunder.      Three Divisional Boards have been set up in Maharashtra by the  State Government  in exercise of the power conferred by Section  3 and  these Boards  are in  charge of the Poona Division,  Aurangabad   Division  and   Vidharbha   Division respectively. These  three  Divisional  Boards  conduct  two public   examinations,    namely,   the   Higher   Secondary Certificate   examination-"H.S.C.    examination"-which   is conducted at  the end  of  the  higher  secondary  education course and 40 the   Secondary   School   Certificate   examination-"S.S.C. examination"-conducted at  the end  of the  secondary school education course.      In exercise  of the  powers conferred  by Section 36 of the  Act,   the  State  Board  has  framed  the  Maharashtra Secondary and  Higher Secondary Education Boards Regulations 1977.  These   regulations  were  sanctioned  by  the  State Government under  sub-section (3)  of Section  36  and  were published on  the 11th  July, 1977. They are to be deemed to have come  into force  on 15th  June 1977. These regulations were applied to the Secondary School Certificate examination and  Higher   Secondary  Certificate   examination  held  in October, 1977  and thereafter.  The regulations consist of 3 parts. Part  I contains  the provisions  common to Secondary School Certificate (S.S.C.) and Higher Secondary Certificate (H.S.C.)  examinations;   Part   II   contains   regulations pertaining to  S.S.C. examination  only and  Part III  those pertaining exclusively  to the  Higher Secondary Certificate examinations Regulation  104 with  which  we  are  concerned occurs in  Part III  and clauses  (1) to  (3) thereof  which alone are  relevant for the purposes of this case require to be reproduced here:   "104.   VERIFICATION OF MARKS OBTAINED BY A CANDIDATE IN A           SUBJECT.           (1)  Any candidate  who has appeared at the Higher                Secondary Certificate  examination may  apply                to the  Divisional Secretary for verification                of  marks  in  any  particular  subject.  The                verification will  be restricted  to checking

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              whether all  the answers  have been  examined                and that  there has  been no  mistake in  the                totalling of  marks for each question in that                subject and  transferring marks  correctly on                the first  cover page  of the answer-book and                whether  the   supplements  attached  to  the                answer book mentioned by the candidate are in                tact. No  revaluation of  the answer-book  or                supplements shall be done.           (2)  Such an  application  must  be  made  by  the                candidate through  the  head  of  the  junior                college   which   presented   him   for   the                examination,  within   two   weeks   of   the                declaration of the examination results 41                and must  be accompanied by a fee of Rs. 10/-                for each subject.           (3)   No candidate  shall claim, or be entitled to                revaluation of  his answers  or disclosure or                inspection  of   the  answer-books  or  other                documents  as   these  are   treated  by  the                Divisional Board as most confidential."      Before the  High Court,  the Writ Petitioners had based their challenge  against the validity of clauses (1) and (3) of Regulation 104 on three main grounds. The first ground of attack was  that the  impugned clauses were violative of the principles of  natural justice.  Secondly, it was urged that both clauses  (1) and  (3) were  ultra vires and void on the ground of  their being  in excess  of the  regulation making powers conferred  on the Board by Section 36 of the Act. The third ground  of challenge  was that the impugned provisions contained in  clauses (l)  and (3)  were highly unreasonable and since  the regulations  framed by  the Board  are in the nature of bye-laws, they are liable to be struck down on the ground of unreasonableness.      Though the  main plank  of the  arguments  advanced  on behalf of  the petitioners  before the High Court appears to have been  the plea  of violation  of principle  of  natural justice, the  said contention  did not  find favour with the learned  Judges  of  the  Division  Bench.  The  High  Court rejected  the   contention  advanced   on  behalf   of   the petitioners that non-disclosure or disallowance of the right or inspection  of the  answer-books as well as denial of the right  to  ask  for  a  revaluation  to  examinees  who  are dissatisfied with the results visits them with adverse civil consequences.  The   further  argument  that  every  adverse "verification" involves  a  condemnation  of  the  examinees behind their back and hence constitutes a clear violation of principles of  natural justice  was also not accepted by the High Court.  In our  opinion, the  High Court  was perfectly right in  taking this view and in holding that (the "process of evaluation of answer papers or of subsequent verification of marks"  under clause  (3)  of  Regulation  104  does  not attract the  principles of natural justice since no decision making process which brings about adverse civil consequences to the  examinees in  involved. The  principles  of  natural justice cannot  be extended  beyond reasonable  and rational limits and  cannot be  carried to  such absurd lengths as to make it  necessary that  candidates who  have taken a public examination should  be allowed to participate in the process of evaluation of their performances or 42 to verify  the correctness  of the  evaluation made  by  the examiners by  themselves conducting  an  inspection  of  the answer-books and determining whether there has been a proper

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and fair  valuation of  the  answers  by  the  examiners  As succinctly put  by Mathew, J in his judgment in the Union of India v.  M.L. Kapur,   "it  is not  expedient to extend the horizon of  natural justice  involved in  the  Audi  alteram partem rule  to the  twilight  zone  of  mere  expectations, however great they might be". The challenge levelled against the validity  of clause  (3) of  Regulation 104 based on the plea of violation of natural justice was, therefore, rightly rejected by the High Court.      The High  Court in  its judgment  in the first group of cases then  went on  to consider  the next  two  grounds  of challenge put  forward  by  the  petitioners.  namely,  that clause (3)  is ultra  vires on  the ground  of its  being in excess of the regulation making powers of the Board and that in any  event it  is void  on the ground of unreasonableness Board these  grounds of  challenge were  upheld by  the High Court and,  in consequence thereof, clause (3) of Regulation 104 has  been struck  down by the learned Judges as illegal, ultra vires and void. After giving our careful consideration to the  arguments advanced  by the learned counsel appearing on both sides, we have unhesitatingly come to the conclusion that the view so taken by the High Court is wholly erroneous and unsustainable.      We shall first take up for consideration the contention that clause  (3)  of  Regulation  104  is  ultra  vires  the regulation-making powers  of the  Board. The  point urged by the  petitioners   before  the   High  Court  was  that  the prohibition against  the inspection  or  disclosure  of  the answer papers  and other  documents and the declaration made in the  impugned  clause  that  they  are  "treated  by  the Divisional Board as confidential documents" do not serve any of the  purposes of  the Act  and hence these provisions are ultra vires.  The High  Court was  of the view that the said contention of the petitioners had to be examined against the back-drop of  the fact  disclosed by  some  of  the  records produced before  it that  in the  past there  had been a few instances where some students possessing inferior merits had succeeded  in   passing  off  the  answer  papers  of  other brilliant students  as their  own  by  tampering  with  seat numbers  or   otherwise   and   the   verification   process contemplated under  Regulation 104  had failed to detect the mischief. In our opinion, this 43 approach made  by the  High Court  was not correct or proper because the question whether a particular piece of delegated legislation-whether a  rule or  regulation or  other type of statutory  instrument-is   in  excess   of  the   power   of subordinate legislation  conferred on the delegate has to be determined with  reference only  to the  specific provisions contained in  the relevant  statute conferring  the power to make the  rule, regulation,  etc. and  also the  object  and purpose of  the Act  as can  be gathered  from  the  various provisions of  the enactment.  It would  be wholly wrong for the court  to substitute  its own  opinion for  that of  the legislature or  its delegate  as to what principle or policy would best  serve the objects and purposes of the Act and to sit  in  judgment  over  the  wisdom  and  effectiveness  or otherwise of  the policy  laid down by the regulation-making body and  declare a  regulation to  be ultra vires merely on the ground  that, in  the view  of the  Court, the  impugned provisions will  not help to serve the object and purpose of the Act.  So long  as the  body entrusted  with the  task of framing the  rules or  regulations acts  within the scope of the authority  conferred on  it, in the sense that the rules or regulations  made by  it have  a rational acts within the

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object and  purpose of  the Statute,  the court  should  not concern itself  with the  wisdom or  efficaciousness of such rules or  regulations. It is exclusively within the province of the  legislature and  its delegate  to  determine,  as  a matter of policy, how the provisions of the Statute can best be implemented  and what  measures, substantive  as well  as procedural would  have to  be incorporated  in the  rules or regulations for  the efficacious  achievement of the objects and purposes  of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall  within the  scope of the regulation-making power conferred on the delegated by the Statute. Though this legal position  is well  established by  a  long  series  of decisions of  this Court, we have considered it necessary to reiterate it  in view  of the  manifestly erroneous approach made by  the High Court to the consideration of the question as to  whether the  impugned clause (3) of Regulation 104 is ultra vires.  In the  light of  the aforesaid principles, we shall now proceed to consider the challenge levelled against the validity of the Regulation 104 (3).      As already  noticed, the  power to  make regulations is conferred on the Board by Section 36 of the Act. Sub-section (1) of  the said  Section lays  down that the Board may make regulations for  the purpose  of carrying  into  effect  the provisions of the Act. Sub- 44 section (2)  enumerates, in  clause (a)  to (n)  the various matters for  which  the  provisions  may  be  made  by  such regulations, the said enumeration being without prejudice to the generality of the power conferred by sub-section (1). We have already  extracted clauses  (c), (d), (f) and (g) which deal with  the conditions  governing admission of candidates for the  final examinations, the arrangement for the conduct of final  examinations by  the  Divisional  Boards  and  for publication of  results, and  the appointment  of examiners, their  powers   and  duties   in  relation   to  the   final examinations, etc.  These topics are comprehensive enough to cover the  prescription of  the procedure for finalizing the results of  the examination  based on  the evaluation of the answers  of   the  candidates  who  have  appeared  for  the examinations, as  well as the laying down of the restrictive provisions relating  to verification  of marks,  prohibition against disclosure and inspection of answer books and denial of any  right or claim for evaluation. We fail to see how it can be  said that  these are  not matters  pertaining to the conduct of  the final examination and the publication of the results of  such examination. Further, Section 19 of the Act which sets  out the  powers and duties of a Divisional Board lays down  in clauses  (f) and (g) that the Board shall have the power  and is under a duty to conduct in the area of its jurisdiction the  final examination  on behalf  of the State Board and  to appoint  paper-setters,  examiners,  etc,  for conducting  the   final  examination  in  the  area  of  its jurisdiction, for evaluation of candidates, performances and for compiling and release of results in accordance with such instructions as the State Board may from time to time issue. It is  thus clear  that the conduct of the final examination and the  evaluation of  the candidates’  performance and the compiling and  release of  results are all to be carried out by the  divisional Board in accordance with the instructions to be  issued by  the State  Board from time to time. It is, therefore, manifest  that a  duty is cast on the State Board to formulate its policy as to how the examinations are to be conducted, how  the evaluation  of the  performances of  the

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candidates is  to be  made and by what procedure the results are to  be finalised, compiled and released. In our opinion, it was  perfectly within the competence of the Board, rather it was  its plain  duty, to  apply its  mind and decide as a matter of  policy relating to the conduct of the examination as to  whether disclosure and inspection of the answer books should be  allowed to  the candidates,  whether and  to what extent verification  of the  result I  should  be  permitted after the  results have  already been  announced and whether any right to claim revaluation of the answer books 45 should  be   recognised  or  provided  for.  All  these  are undoubtedly matters  which have  an intimate  nexus with the objects and  purposes of  the enactment  and are, therefore, within the  ambit of  the general  power to make regulations conferred under  Sub-section (1) of Section 36. In addition. these matters  fall also within the scope of clause (c), (f) and (g)  of sub-section  (2) of the said Section. We do not, therefore, find  it possible  to accept  as correct the view expressed by  the High  Court that  clause (3) of Regulation 104 is  ultra vires  on the ground of its being in excess of the regulation-making  power conferred  on the Board Instead of confining  itself to a consideration whether the impugned regulations fall  within the four corners of the Statute and particularly of  Section 36  thereof which confers the power to  make  regulations,  the  High  Court  embarked  upon  an investigation  as   to  whether   the  prohibition   against disclosure  and   inspection  of   answer  books  and  other documents imposed  by the  impugned clause (3) of Regulation 104 would, in practice, effectively serve the purpose of the Act ensuring  fair play to the examinees) The High Court was of the  opinion that  in deciding the question as to whether the impugned  clause was  ultra vires, the Court had to bear in mind  "the glaring  deficiencies" found  to exist  in the working  of   the  system   inspite  of  all  the  elaborate precautionary measures  taken  for  preventing  such  lapses which were  detailed in the affidavit in reply and "the far- reaching implications of the said deficiencies on the future of the  examinees" and it went on to observe that "the nexus or absence  thereof between  the purposes  of the Act or the purpose of  the  examination  and  the  prohibition  against inspection in  the impugned clause can be discovered only by reference to  these factors  . When the High Court proceeded to make following further observations:           "The  examinee   is   the   person   affected   by      miscalculation of  totals,  omissions  to  examine  any      answer, misplacement  of  the  supplementaries  of  the      answer books  and misplacement  or tampering  with  the      said record  in any  manner,  if  any.  Adverse  result      creates suspicion in his mind about the possible errors      in the  system and his claim to inspection against this      background must be held to be reasonable and calculated      to observe  the purposes of the examination as also the      over-all purposes  of the  Act.  This  enables  him  to      verify if  his suspicions  are  ill  or  well  founded.      Existence of some over-riding factors alone can justify      denial of his claim." 46      The High  Court concluded  the discussion  by stating : "Such confidentiality  cannot be  found to  be  serving  any purpose of  the Act  merely because it was acquiesced in the past  or   accepted  without  challenge.  According  to  Mr. Setalvad, authority to treat these documents confidential is implicit in  the very  power to hold the examination itself, it being  necessary to  secure effective  achievement of the

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process. This  is too  broad a  statement to  admit  of  any scrutiny. No  such power can, however, be implied unless its indispensibility of  treating the  question papers and names of the  question setters and examiners confidential, up to a certain stage  can easily  be appreciated.  Their  premature disclosure  or   exposure  may   defeat   the   purpose   of examinations and  make a  mockery of its very conception. It is, however  difficult to  see any  purpose of continuing to keep them  confidential at any rate after the declaration of the results."      In our opinion, the aforesaid approach made by the High Court is  wholly incorrect  and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and  the subordinate  regulation-making body. It may be a wise policy which will fully effectuate the purpose of the  enactment or  it may be lacking in effectiveness and hence  calling   for  revision   and  improvement.  But  any drawbacks in the policy incorporated in a rule or regulation will not  render it  ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent  policy, but  is even  a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature  and its  delegate are the sole repositories of the  power to  decide what  policy should  be pursued  in relation to matters covered by the Act and there is no scope for  interference   by  the   Court  unless  the  particular provision impugned  before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope  of   the  regulation-making   power  or   its   being inconsistent with  any  of  the  provisions  of  the  parent enactment or  in violation of any of the limitations imposed by the  Constitution. None  of these  vitiating factors  are shown to  exist in  the present  case and hence there was no scope at  all for the High Court to invalidate the provision contained in  clause (3) of Regulation 104 as ultra vires on the grounds  of its being in excess of the regulation-making power conferred  on the  Board. Equally  untenable,  in  our opinion, is  the next  and last ground by the High Court for striking down  clause (3) of Regulation 104 as unreasonable, namely, that  it is  in the nature of a bye-law and is ultra vires on the ground of its being an 47 unreasonable provision.  It is  clear from the scheme of the Act and  more particularly,  Section 18,  19 and 34 that the legislature has  laid down  in broad  terms  its  policy  to provide  for   the  establishment   of  a  State  Board  and Divisional  Boards   to  regulate   matters  pertaining   to secondary  and   higher  secondary   education  and  it  has authorised the  State Government  in the  first instance and subsequently the Board to enunciate the details for carrying into effect  the purposes of the Act by framing regulations. It is a common legislative practice that the legislature may choose to  lay down only the general policy and leave to its delegate to  make  detailed  provisions  for  carrying  into effect the  said policy  and effectuate  the purposes of the Statute by framing rules/regulations which are in the nature of subordinate legislation. Sec. 3(39) of the Bombay General Clauses Act,  1904, which  defines the  ’rule’ states:  Rule shall mean  a rule  made in  exercise of the power under any enactment and shall include any regulation made under a rule or under  any enactment."  It is  important to notice that a distinct power  of making bye-laws has been conferred by the Act on the State Board under Section 38. The legislature has thus  maintained   in  the   Statute  in  question  a  clear distinction between  ’bye-laws’ and  ’regulations’. The bye-

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laws to  be framed  under Section  38 are  to relate only to procedural matters  concerning the  holding of  meetings  of State Board, Divisional Boards and the Committee, the quorum required, etc More important matters affecting the rights of parties and  laying down  the manner in which the provisions of the  Act are to be carried into effect have been reserved to be provided for by regulations made under Section 36. The legislature, while  enacting Sections  36 and  38,  must  be assumed to  have been  fully aware  of the  niceties of  the legal   position    governing   the    distinction   between rules/regulations properly  so called and bye-laws. When the statute  contains  a  clear  indication  that  the  distinct regulation-making power  conferred under  Section 36 was not intended as a power merely to frame bye-laws, it is not open to the  Court to  ignore the  same and treat the regulations made under  Section 36  as mere  bye-laws in  order to bring them within the scope of justiciability by applying the test of reasonableness.      It is  also relevant  to notice  in  this  context  the nature and  composition of the body on which the regulation- making power  has been conferred by the Act. The composition of the  State Board is set out in Section 5. It will be seen therefrom that  the Board  is to  have as ex-officio members the Director of Education of the 48 State Government,  the Director  of Higher  Education of the State Government, the Chairmen of the Divisional Boards, the director of  Technical Education  of the State, the Director of Agriculture,  the Director  of  the  State  Institute  of Education.  Then   there  is  a  class  of  elected  members consisting of one representative from each University in the State elected by the Academic Council of the University, two members elected by the Maharashtra Legislative Assembly from amongst  its   members  and   one  member   elected  by  the Maharashtra Legislative  Council from  amongst its  members. Next comes  the category  of nominated  members belonging to five different  categories described  in clauses  (i) to (v) under class  (C) in  the Section,  aggregating 21 in all. It will be seen from these clauses that these nominated members are  to  be  drawn  from  amongst  Principals,  Headmasters, Headmistresses, teachers  of Junior  Colleges and  Secondary Schools, representatives  of managing  bodies  of  secondary schools  and   junior  colleges,   persons  having   special knowledge or  practical experience in matters connected with primary, secondary  or higher secondary education. The State Board is  thus comprised  of members  who can  be reasonably expected to  possess intimate knowledge, practical know-how, expertise and  experience in  all matters  pertaining to the field of education-school and collegiate-and it is to such a highly  responsible   body  of  professional  men  that  the legislature has  entrusted the  task of  framing regulations laving down  the  details  of  policy  of  working  out  the provisions of the Act are to be carried into effect. Section 37(i) lays  down that the first regulations shall be made by the State  Government and they shall continue to be in force until the  new regulations  are  made  by  the  Board  under section 36.  There is also the further safeguard provided in sub-section (3)  of Section 36 that no regulation made under that Section  shall have  the effect until the same has been sanctioned by the State Government. Even more significant is the   provision contained  in sub-section  (2) of Section 37 conferring a  concurrent power  on the  State Government  to make any  new regulations  in respect  of any of the matters referred to  in Section  36 and  thereby  modify  or  repeal either wholly  or in  part the regulations made by the State

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Board. The said sub-section is in the following terms :           "37. (2)  If it  shall at  any time  appear to the      State Government  that it  is expedient to make any new      regulations in  respect of  any of the matters referred      to in Section 36 or that any regulations referred to in      sub-section (i)  or  made  by  the  State  Board  under      section 36 need to be modi- 49      fied or  repealed, either  wholly or in part, the State      Government may  after consultation with the State Board      and by  notification in the official Gazette, make such      regulations, or  modify or repeal any such regulations,      either wholly  or in  part. The  regulations  so  made,      modified or  repealed shall  take effect from such date      as  the  State  Government  may  in  such  notification      specify or  if no such date is specified, from the date      of publication of the said notification in the Official      Gazette, except as respects anything done or omitted to      be done before such date."      In our opinion, there cannot be a clearer indication of the  intention   of  the   legislature  regarding  the  true character of  the regulations  which are  to be  made either under Section  36 or  under the  provisions of  either  sub- section (1)  or sub-section  (2) of  the Section 37, namely, that they  are in  the  nature  of  subordinate  legislation having the  force of  rule framed under a Statute amplifying and supplementing  its provisions  by laying  down  how  the legislative policy is to be carried into effect with respect to different situations that may arise in the implementation of the  object and  purposes  of  Statute.  Viewed  in  this setting, we  are unhesitatingly  of  the  opinion  that  the regulations made  by the  Board under  Section 36 are in the nature of  statutory rules and they have the full vigour and force of  subordinate legislation  made by  a delegate  duly empowered in  that behalf  by the legislature. In support of its conclusion  that the Regulations framed under Section 36 are only in the nature of byelaws, the Division Bench of the High Court  has strongly  relied on an earlier ruling of the same court  in Sophy  Kelly v.  The State,(1)  where another Division Bench  has expressed  the view that the earlier set of regulations  framed under  Section 36 of the Act are only in  the   nature  of  bye-laws.  In  arriving  at  the  said conclusion, the  Court is  not seen to have adverted to most of the  crucial aspects  pointed out  by us in the preceding paragraphs. We  are unable  to accept  the said  decision as laying down correct law.      In  the  light  of  what  we  have  stated  above,  the constitutionality of  the impugned  regulations  has  to  be adjudged only  by a  threefold test, namely, (1) whether the provisions of  such regulations  fall within  the scope  and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the 50 delegate are  to any extent inconsistent with the provisions of  the  parents  enactment  and  lastly  (3)  whether  they infringe any of the fundamental rights or other restrictions or limitations  imposed by the Constitution. We have already held that  the High  Court was  in error in holding that the provisions of  clause (3) of Regulation 104 do not serve the purpose of  carrying into  effect the  provisions of the Act and are  ultra vires  on the ground of their being in excess of the  regulation-making power conferred by Section 36. The Writ Petitioners  had no case before the High Court that the impugned clauses  of  the  regulations  were  liable  to  be invalidated on  the application  of second  and third tests.

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Besides the  contention that  the impugned  regulations were ultra vires  the power  conferred under  Section 36(1),  the only other  point urged  was that they were in the nature of bye-laws and  were liable to be struck down on the ground of unreasonableness.      In view  of the  conclusion expressed  by us  that  the regulations  cannot   be  regarded  as  mere  bye-laws,  the contention  raised  on  alleged  unreasonableness  does  not really call for consideration. However, since the High Court has discussed  the said  aspect at  great length  in its two judgments and  fairly elaborate arguments were also advanced before us  by the learned advocates appearing on both sides, we think  it is  only fair and proper that we should briefly express our  views on  the merits of the question concerning the reasonableness  of impugned regulation. The reason which weighed with the High Court for declaring that clause (3) of Regulation 104,  which states  that no  candidate should  be entitled to  claim disclosure  and inspection  of the answer books and  other connected documents and that they are to be treated  as   confidential  suffers   from   the   vice   of unreasonableness is  that denial  of the right of disclosure and inspection  is ’defeasive’  of the right of verification conferred on  the examinees under sub-clause (1) of the same clause as  well as  the right flowing from sub-clause (2) of Regulation 102 whereby the Divisional Board is invested with the power  to amend  the  result  of  any  candidate  in  an examination where  it is  found that  the  result  has  been affected by  error, malpractice,  fraud, etc.  Dealing  with this aspect, the High Court has observed as follows in paras 46 and 47 of its judgment:           "We, however,  do not  think that  mere absence of      any positive  provision for  inspection can be decisive      of  examinees’  claim  thereto.  The  Board  itself  is      conscious of  the falliability  of its  system, and the      possibility of inadvertent 51      or  deliberate   errors  and   malpractices.  It   has,      therefore, provided  correctives against such errors in      Regulations 102  and 104.  Right  of  verification  and      power of  correction of  the results,  conferred  under      these regulations must be assumed to have been intended      to be effective. Experience of a few years however, has      revealed several deficiencies in the functioning of the      system  and   demonstrated  how   the  said  system  of      verification  and   powers  of  correction  can  become      ineffective.   Entire    reliance   on    the   Board’s      administration even  for the  ministerial part of these      functions may reduce these provisions to a dead letter.      These rights  and powers  can be  better effectuated by      enabling the  examinee, to  have himself  inspection of      the papers.  Such a  right indeed  is implicit  in  the      right of  verification. The power to correct the errors      and amend result contemplated under Regulations 104 and      102 also  imply an  obligation to facilitate tracing of      such errors  and  malpractices  and  provide  effective      machinery for their detection. This includes an implied      obligation to  give inspection  of the answer papers to      the  interested   person  such  as  the  examinee.  The      malpractices involved  in passing off papers written by      one as  that of  others and manipulations and tampering      and the  frauds involved therein, cannot be effectively      detected  and   remedied  unless,   among  others,  the      examinee himself  is  enabled  to  inspect  the  answer      papers. This  is indispensible  even for  verifying the      claim as  to the  presence or  absence of any examinee.

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    The right  of inspection  thus is  the integral part of      right of  verification  and  obligation  to  trace  and      correct the  errors as  implied in  Regulations 102 and      104. Doctrine of implied power and obligation and right      and  duties   make  up  for  the  absence  of  positive      provisions.           47. It  is true that such right of inspection does      not seem  to have  been recognised  under any system of      examination in  India and  its recognition  is bound to      unsettle the  age old  practice  followed  and  notions      entertained. The  decision is  bound to have effects on      examination in several other fields, apart from the one      contemplated by the Board or Universities. Consequences      on administration  also are  bound to  be far-reaching,      necessitating setting up some additional machinery, and      may prove  to be  time  consuming  and  expensive.  We,      however, find  that such  right of  inspection has  now      become indispensible for effectuating the 52      underlying  purpose   of  examination.  None  of  these      considerations  appear   to  us   to   be,   therefore,      relevant."      We consider  that the  above approach  made by the High Court is  totally fallacious  and is vitiated by its failure to follow  the well-established  doctrine of  interpretation that the provisions contained in a statutory enactment or in rules/regulations framed there under have to be so construed as to  be in  harmony with each other and that where under a specific section  or rule  a particular subject has received special treatment,  such special  provision will exclude the applicability of any general provision which might otherwise cover the  said  topic.  Regulation  102  (2),  if  properly construed in  the setting in which it occurs, only confers a suo motu  power on  the Divisional Board to amend the result of the examination in respect of any candidate or candidates on its  being found  that such  result has  been affected by error,  malpractice,   fraud,  improper  conduct,  etc.  The ’error’ referred  to in  the  said  provision  has,  in  the context, to  be understood  as being  limited  to  an  error arising  in  consequence  of  malpractice,  fraud,  improper conduct or other similar matter of whatsoever nature. We are unable to  understand this provision as conferring any right on  an  examinee  to  demand  a  disclosure,  inspection  or verification of his answer books or other related documents. All scope  for doubt  or speculation  in  relation  to  this matter  has,  however,  been  eliminated  by  the  provision contained in  Regulation 104  which specifically  deals with the  subject   of  verification   of  marks  obtained  by  a candidate. Clause (1) of the said regulation states that any candidate who  has appeared  at the  H.S.C. examination  may apply to  Divisional Secretary  for verification  of  marks, particularly in  any subject,  but such verification will be restricted to  check  whether  all  the  answers  have  been examined and  whether any  mistake  has  been  committed  in totalling of  marks in that subject or in transferring marks correctly on  the Ist  cover page of the answer book as well as whether  the supplements  attached to the answer books as mentioned by  the candidates  are in tact. Clause (3) of the said Regulation  imposes  the  further  limitation  that  no candidate shall  claim or  be entitled to revaluation of his answer book  or disclosure  or inspection of the answer book or further  documents as  these are  to be  treated  by  the Divisional Boards  as most  confidential. It is obvious that clauses (1)  and (3)  have to  be read  together and  not in isolation from each other as has apparently been done by the

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High Court.  The right  of verification  conferred by clause (1) is  subject to  the limitation  contained  in  the  same clause that no revaluation of the 53 answer books  or supplements  shall be  done and the further restriction imposed by clause (3), prohibiting disclosure or inspection of the answer books. The High Court seems to have construed the  last portion  of clause  (3) as implying that the confidentiality  of the answer book is to be declared by some order  of the  Divisional Board and it has proceeded to hold that  since no  such order was brought to the notice of the Court  there was  no basis for treating the answer books as confidential.  In our opinion, this interpretation of the concluding words  of clause  (3) is  incorrect. What is laid down therein  is that  the answer  books and other documents are  to   be  treated  by  the  Divisional  Boards  as  most confidential. In  other words  this clause of the regulation contains a  mandate to  the Divisional  Boards to  treat the answer book and documents as confidential and lays down that no candidate  shall  be  entitled  to  claim  disclosure  or inspection of  the said confidential books and documents. We are also  of the opinion that the High Court was in error in invoking the  ’doctrine of implied power and obligation’ for the  purpose   of  holding   that  because   the  right   of verification has  been conferred by clause (1) of Regulation 104, there  is an  implied power  in the examinees to demand disclosure  and   inspection  and  a  corresponding  implied obligation on  the part  of the  Board to  accede to  such a demand. There  is no  scope at  all for  invoking  any  such implied power or imputing to the regulation-making authority an intention  to confer such power by implication when there is  an   express  provision   contained  in  the  very  same regulation clause  (3) which  clearly manifests the contrary intention and  states in  categorical terms that there shall be no claim or entitlement for discolor or inspection of the answer books.      The legal  position is now well-established that even a bye-law cannot  be struck down by the Court on the ground of unreasonableness merely  because the  Court thinks  that  it goes further  than  "is  necessary"  or  that  it  does  not incorporate certain  provisions which, in the opinion of the court, would  have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the judges do not  approve of  it. Unless it can be said that a bye law is manifestly unjust, capricious, inequitable, or partial in its operation,  it cannot be invalidated by the Court on the ground of  unreasonableness. The  responsible representative body  entrusted   with  the  power  to  make  by  laws  must ordinarily  be   presumed  to   know  what   is   necessary, reasonable,  just  and  fair.  In  this  connection  we  may usefully extract  the following  off-quoted observations  of Lord 54 Russell of Killowen in Kruse v. John son,(1)           "When the  Court is  called upon  to consider  the      byelaws of  public representative  bodies clothed  with      the ample authority which I have described, accompanied      by the  checks and safeguards which I have mentioned, I      think the  consideration of  such bye-laws  ought to be      approached from  a different  standpoint. They ought to      be supported if possible. They ought to be, as has been      said, ’benevolently interpreted’ and credit ought to be      given to  those who  have to  administer them that they      will be reasonable administered."           "The learned Chief Justice said further that there

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    may be      ’cases in  which it  would be  the duty of the court to      condemn by-laws made under such authority as these were      made  (by   a  county  council)  as  invalid  be  cause      unreasonable. But  unreasonable in  what sense ? If for      instance, they  were found to be partial and unequal in      their operation  as between  different classes; if they      were manifestly unjust; if they disclosed bad faith; if      they   involved    such   oppressive    or   gratuitous      interference with  the rights  of those subject to them      as  could   find  no  justification  in  the  minds  of      reasonable men,  the court  might well say, ’Parliament      never intended  to give  authority to  make such rules;      they are  unreasonable and  ultra vires.’  But it is in      this and  this sense  only, as  I  conceive,  that  the      question of  reasonableness  can  unreasonableness  can      properly be  regarded. A  bye-law is  not  unreasonable      merely because particular judges may think that it goes      further than  is prudent  or necessary or convenient or      because it  is not  accompanied by  an exception  which      some judges may think ought to be there’." We may  also refer with advantage to the well-known decision of the  Privy Council in Slattery v. Naylor (2) where it has been laid  down that  when considering  whether a bye-law is reasonable or  not, the Court would need a strong case to be made against  it and  would decline  to determine whether it would have been wiser 55 or more prudent to make the bye-law less absolute or will it hold the   bye-law to be unreasonable because considerations which the court would itself have regarded in framing such a bye-law have  been over  looked or reflected by its framers. The principles  laid down  as aforesaid  in Kruse v. Johnson and Stattery  v. Naylor  have been  cited with  approval and applied by  this Court  in Trustees of the Port of Madras v. Aminchand Pyarelal & Ors.,(1)      As already  noticed, one of the principal factors which appears to  have weighed  with the  High Court  is  that  in certain stray  instances (specific  instances referred to in the Judgment  are only  about three  in number),  errors  or irregularities had  gone unnoticed  in the  past even  after verification  of   the  concerned   answer  books  had  been conducted according  to the  existing procedure  and it  was only after  further scrutiny  made either on orders of court or in  the wake  of contentions  raised in  petitions  filed before a  court that  such  errors  or  irregularities  were ultimately discovered.  In this  connection we  consider  it necessary to recall the observations made by Krishna Iyer, J in R.  S. Joshi v. Ajit Mills that "a law has to be adjudged for its  constitutionality by  the generality  of  cases  it covers, not  by the freaks and exceptions it martyrs". It is seen from  the affidavits  that form  part of  the record of this case  that the  three Divisional  Boards conduct the H. S.C. examinations  twice  every  year,  i.e.  in  March  and October every  year. The  number of  candidates who appeared for the  H.S.C. examination  in March  1980 was  1, 15, 364. Likewise, the S.S.C. Public examination is also conducted by the Divisional  Boards twice during the year, and the number of candidates appearing in the said examination is very much larger than  the number  appearing in the H.S.C examination. From the  figures furnished  by the  Board, it  is seen that there is  a progressive  increase from  year to  year in the number  of   candidates  appearing   in  both  these  public examinations. In  March 1980,  a total  number of 2, 99, 267 had appeared  in the  S.S.C.  examination.  Considering  the

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enormity of  the task  of evaluation discharged by the Board through the examiners appointed by it, it is really a matter for  satisfaction   that  proved  instances  of  errors  and irregularities have  been so  few as  to be counted on one’s fingers. Instead  of viewing  the matter  from this  correct perspective, we  regret to find the fact that the High Court laid undue and exaggerated stress on some stray instance and made it  a basis for reaching the conclusion that reasonable fair play to the candidates can be assured only if 56 the right  of disclosure  and personal inspection is allowed to the  candidates as  part of  the process of verification. This approach  does not  appeal to  us as legally correct or soud. We  do  not  find  it  possible  to  uphold  the  view expressed by  the High  Court that  clause (3) of Regulation 104 which  disentitles the examinees to claim disclosure and inspection of  the answer books and declares those documents to be confidential is "defeasive of the corrective powers of the Board  under Regulations  102 and  104 and  the right of verification under Regulation 104 (1) as also destructive of the confidence  of public in the efficacy of the system. The reasons  which   prompted  the   High  Court  to  reach  the aforementioned conclusion  are to  be found in the following observations  occurring  in  para  33  of  the  Judgment  of Deshpande, J:           "33. On  the other  hand, access of the student to      the answer  books would enable him to verify (1) if the      papers are his own. and (2) supplementary answer papers      are duly  tagged, and (3) all answers are evaluated and      (4) totals are correct, and (5) marks of his practicals      or internal  assessments are  included therein  and (6)      and his  adverse results  are not  due to  any error or      manipulations. This  will at  once not  only  make  the      verification process under Regulation 104 (1) effective      and real,  but facilitate Board’s exercising its powers      to trace  errors and  malpractices and amend the result      preventing frustration  of the students. The purpose of      the  Act  can  be  served  thus  better  by  permitting      inspection than  by preventing  it. In other words, the      confidentiality, rather  than serve  any purpose of the      Act goes to defeat it firstly by making the functioning      of the  system dependent  entirely on  the staff,  and,      secondly by  making process  under Regulations 102 (3),      (4) and (104) (1) ineffective for want of assistance of      the examine himself."      In making  the above  observations, the  High Court has ignored the  cardinal principle  that it  is not  within the legitimate domain  of the  Court to  determine  whether  the purpose of  a statute  can be  served better by adopting any policy different  from  what  has  been  laid  down  by  the legislature  or   its  delegate   and  to   strike  down  as unreasonable  a   bye-law  (assuming   for  the  purpose  of discussion that the impugned regulation is a bye-law) merely on the  ground that  the policy  enunciate therein  does not meet with the approval of 57 the   court   in   regard   to   its   efficaciousness   for implementation of the object and purposes of the Act.      In the  light of foregoing discussion, we hold that the conclusion  recorded   by  the  Court  that  clause  (3)  of Regulation 104  is liable to be struck down on the ground of unreasonableness is totally incorrect and unsustainable.      That takes  us to  the question concerning the validity of the  provision  contained  in  clauses  (1)  and  (3)  of Regulation 104,  which provides  that no  revaluation of the

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answer books  or supplements  shall  be  done  and  that  no candidate shall  claim or be entitled to claim a revaluation of his  answer books. This aspect has been dealt with in the separate judgment  of the Division Bench delivered by Mohta, J. On  perusal of  the judgment,  it will  be seen  that the entire reasoning therein is based on the conclusion recorded in the judgment of Deshpande, J delivered in the first group of cases,  that the  provision contained  in clauses (1) and (3)  of   Regulation  104  prohibiting  the  disclosure  and inspection of  answer books  is liable  to be struck down on the ground  of unreasonableness  as well as on the ground of its being  ultra vires  the scope  of the  rule making power conferred by  Section 36  (1) of the Act. Making this as the starting point  of his  reasoning, Mohta, J has proceeded to observe that  the "logical  end of permitting inspection and disclosure of  answer books and other documents is to permit revaluation" and  that "no  useful purpose will be served by having inspection  and disclosure  in case  further right of revaluation is  denied". Based  on  such  an  approach,  the learned Judge  has proceeded  to state  that there  was  "no justification  whatsoever  to  restrict  the  obligation  of correcting of  mistake  only  to  verification  and  exclude revaluation  from   the  operation   of   Regulation   102." Accordingly, it  was  held  that  clauses  (1)  and  (3)  of Regulation 104  insofar as  they prohibit  revaluation,  are also void on the ground of unreasonableness.      As already noticed, the other learned Judge (Deshpande, J) has  written a  separate short  judgment in this group of cases expressing  his doubts and reservations concerning the correctness of  the conclusion  reached by his colleague but he has  finally wound  up his  judgment  stating  that  even though  we   was  diffident  of  spelling  out  a  right  of revaluation from  any of  the provisions  contained  in  the regulations he  would prefer  to  agree  with  the  judgment prepared by  Mohta, J "rather than allow my views to prevail and dissent".  Having regard  to the  substantial nature and general importance of 58 the question  and the repercussions that would inevitably be produced  by   the  recognition   of  the  right  to  demand revaluation in  public examinations  of every kind conducted by Universities,  School Education  Boards and  even  bodies like the Union and State Public Service Commission, it would have  been  much  more  appropriate  if  the  learned  Judge (Deshpande. J)  had independently  discussed the question in all its aspects in accordance with his own light or referred the matter to a larger Bench or to a third Judge as the case may be  if he  felt that the view propounded in the judgment prepared by  his  colleague  was  of  doubtful  correctness. However that  may be,  we have already held that the reasons stated by  the Division  Bench in  its Judgment in the first group of cases for holding that clause (3) of Regulation 104 insofar as  it prohibits disclosure and inspection of answer books and  treating them  as confidential documents is ultra vires  on   the  ground  of  its  being  in  excess  of  the regulation-making power of the Board and is also void on the ground   of   unreasonableness   are   all   incorrect   and unsustainable.  The  validity  of  the  prohibition  against disclosure and inspection having been thus upheld by us, the entirety of  the reasoning  contained  in  the  judgment  of Mehta.  J   in  support   of  his   conclusion  invalidating prohibition against revaluation contained in clauses (1) and (3) of  Regulation loses  its foundation. The view expressed by the  learned Judge  that Regulation 102 (2) which confers on the  Board a suo moto power of amending the results where

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it is  found that  such a  result has  been affected  by any error, malpractice,  fraud, improper  conduct, etc., Will be rendered nugatory  and ineffective  by  the  prohibition  on revaluation is  fallacious and unsound. While discussing the scope of  the said  regulation, we have pointed out that its purpose and effect is only to confer a suo moto power on the Board to  correct errors  in cases where irregularities like malpractices, misconduct,  fraud, etc.  are found out and it does not  confer any  right on  the examinees  to demand any correction of  the results. In the scheme of the regulations after the  publication of  the results, the only right which the examinees  have in relation to this matter is to ask for a verification of the results under clause (1) of Regulation 104 and  the scope  of such  verification is  subject to the limitations imposed  in the said clause as well as in clause (3) of the very same regulation.      We are  unable to  agree with the further reason stated by the  High Court  that since "every student has a right to receive fair  play in  examination and get appropriate marks matching his  performance" it  will be a denial of the right to such fair play if there is to be a 59 prohibition on  the right to demand revaluation and unless a right to   revaluation  is recognised and permitted there is an infringement of rules of fair play. What constitutes fair play depends  upon the  facts and  circumstances relating to each particular  given situation.  If it is found that every possible  precaution   has  been  taken  and  all  necessary safeguards  provided   to  ensure   that  the  answer  books inclusive of  supplements are  kept in safe custody so as to eliminate the  danger of  their being tampered with and that the evaluation  is done  by the  examiners applying  uniform standards with  checks and  cross-checks at different stages and that  measures for  detection of  malpractice, etc. have also been  effectively adopted, in such cases it will not be correct on  the part  of  the  Courts  to  strike  down  the provision prohibiting  revaluation on  the  ground  that  it violates the  rules of fair play. It is unfortunate that the High Court  has not  set out  in detail in either of its two judgments the  elaborate procedure laid down and followed by the Board  and the Divisional Boards relating to the conduct of the  examinations, the evaluation of the answer books and the compilation  and announcement  of the  results. From the affidavit filed on behalf of the Board in the High Court, it is seen  that from  the initial stage of the issuance of the hall tickets  to the  intending candidates  right  upto  the announcement of  the results,  a  well-organised  system  of verification, checks  and counter-checks has been evolved by the Board  and every  step has  been taken  to eliminate the possibility of  human error on the part of the examiners and malpractices on  the  part  of  examinees  as  well  as  the examiners in  an effective  fashion. The examination centres of the  Board are  spread all over the length and breadth of each  Division   and  arrangements  are  made  for  vigilant supervision under  the overall supervision of a Deputy Chief Conductor  in   charge  of   every  sub-centre  and  at  the conclusion of  the time  set for  examination in  each paper including the  main answer book all the answer books and the supplements have to be tied up by the candidate securely and returned to  the Supervisor. But before they are returned to the Supervisor,  each candidate  has to  write out the title page of main answer books in the cages provided for the said particulars, the  number of supplements attached to the main answer book.  The, Supervisor  is enjoined to verify whether the number  so written  tallies with  the actual  number  of

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supplements, handed  over by the candidate together with his main answer  book. After  the return of all the answer books to the  Deputy Chief  Conductor, a  tally is  taken  of  the answer looks including supplements used by the candidates by the Stationery Supervisor who is posted by the Board at 60 each sub-centre.  This enables  the supervisory  staff at  a sub-centre to  verify and  ensure that  all answer books and supplements issued to the candidates have been turned in and received by the supervisory staff. At this stage of checking and double-checking,  if any seat number has been duplicated on the  answer books  by mistake  or by  way  of  deliberate malpractice  it   can  be  easily  detected  and  corrective measures taken  by the  Deputy Chief  Conductor or the Chief Conductor. The  answer books  are then  sent by  the  Deputy Chief Conductor to the Chief Conductor in charge of the main centre. He  sorts out  the answer  books  according  to  the instructions issued  by the  Board and  sends  them  to  the examiners whose  names had  been furnished in advance except in the  case of  the science  subjects, namely, "mathematics and statistics,  physics, chemistry and biology". The answer books in  the science  subjects are  forwarded by  the Chief Conductor under  proper  guard  to  camps  in  Pune  already notified to  the Chief  Conductors.  The  further  procedure followed in  relation to  the valuation  of the answer books has been  explained in  paragraphs 22  to 26  of the counter affidavit dated  10th July  1980 filed  in the High Court by the  Joint   Secretary  to  the  Pune  Divisional  Board  of Secondary Education.  We do  not consider  it  necessary  to burden this  judgment  with  a  recapitulation  of  all  the details furnished  in those paragraphs, and it would suffice to state  that  the  procedure  evolved  by  the  Board  for ensuring fairness  and accuracy  in evaluation of the answer books has  made the  system as fool proof as can be possible and it  meets with  our entire  satisfaction  and  approval. Viewed against  this background,  we do not find it possible to agree with the views expressed by the High Court that the denial of  the right  to demand  a revaluation constitutes a denial of fair play and is unreasonable. The Board is a very responsible body.  The candidates have taken the examination with full  awareness of  the  provisions  contained  in  the Regulations and  in the  declaration made  in  the  form  of application for  admission  to  the  examination  they  have solemnly stated  that they  fully  agree  to  abide  by  the regulations issued  by the Board. In the circumstances, when we find  that all safeguards against errors and malpractices have been  provided for,  there cannot  be said  to  be  any denial of  fair play  to the  examinees  by  reason  of  the prohibition against asking for revaluation.      The High  Court has  relied  upon  the  fact  that  the University  of  Bombay  and  some  other  Universities  have recently made  provisions permitting  candidates  to  demand revaluation. In our opinion, this 61 has little  relevance for  the purpose of deciding about the legal validity  of the  impugned regulations  framed by  the Board.  We   do  not  know  under  what  circumstances,  the University of Bombay has decided to recognise a right in the examinees to  demand a  revaluation. As  far as the Board is concerned it  has set  out  in  the  counter  affidavit  the enormity of the task with which it is already faced, namely, of  completing   twice  during  each  year  the  process  of evaluation and  release  of  results  of  some  3  lakhs  of candidates appearing  for the  S.S.C and H.S.C. examinations to be  held in  an interval  of only  a few  months from one

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another. If the candidates are at all to be given inspection of their  answer books  or the  revaluation  of  the  answer papers is  to be done in the presence of the candidates, the process is  bound to be extremely time consuming and if such a request  is made  by  even  about  ten  per  cent  of  the candidates who  will be  30,000 in  number, it would involve several thousands  of man  hours and  is bound  to throw the entire system  out of  gear. Further,  it is  in the  public interest that the results Public examinations when published should have  some finality  attached to them. If inspection, verification  in   the  presence   of  the   candidates  and revaluation are  to be  allowed as  of right, it may lead to gross and  indefinite uncertainty, particularly in regard to the relative ranking, etc of the candidates, besides leading to utter  confusion on account of the enormity of the labour and time involved in the process.      As pointed out by a Constitution Bench of this Court in Fatehchand Himmatlal  and Ors. v. State of Maharashtra, etc. "the test  of reasonableness is not applied in vacuum but in the contest  of life’s  realities", 1977 (2) SCR 828. If the principle laid  down by  the High Court is to be regarded as correct,  its   applicability  cannot   be   restricted   to examinations conducted  by School  Educational Boards  alone but  would  extend  even  to  all  competitive  examinations conducted by the Union and State Public Service Commissions. The resultant  legal position  emerging from  the High Court Judgment is  that every  candidate who  has appeared for any such examination  and who  is dissatisfied  with his results would, as  an inherent  part of  his right to ’fair play’ be entitled to  demand a  disclosure and personal inspection of his answer scripts and would have a further right to ask for revaluation of his answer papers. The inevitable consequence would be  that there  will be  no certainty at all regarding the results of the competitive examination for an indefinite period of  time until  all such  requests have been compiled with and  the results  of the  verification and  revaluation have been brought into account, 62      Far from advancing public interest and fair play to the other candidates  in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly  pointed out by this court, the Court should be extremely  reluctant to  substitute its  own 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 day-to-day  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 possible, avoid  any   decision  or   interpretation  of  a  statutory provision, rule  or bye-law  which  would  bring  about  the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case.      In the  light of the foregoing discussion, we hold that the High Court was in error in striking down clauses (1) and (3) of  Regulation 104 as illegal, unreasonable and void. We uphold the validity of these provisions.      In the result, both the Judgments of the High Court are

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set aside  and the  two groups  of Writ Petitions which were allowed under  those judgments  will  now  stand  dismissed. These appeals  are accordingly  allowed. The  appellant will get its costs from the respondents. S.R.                                        Appeals allowed. 63