Bishambhar Dayal, C.J.
1. This is a petition by Kumari Kiran Jain who appeared in the High School Certificate Examination, conducted by the respondent, Board, originally in the year 1969 in Biology group. She failed in two subjects -- Elementary Mathematics and Physics. She was allowed to appear in the supplementary examination in 1969. She appeared in that examination, but passed only in Elementary Mathematics and again failed in Physics. Therefore, she was allowed to appear along with the regular candidates in the examination held in the early part of 1970. In the examination held in 1970 practical examination in Physics had also been introduced and, therefore, she appeared both in theory and practical examinations. In 1969 no practical test was taken and the candidates were examined in Physics in two papers of theory only of 50 marks each. When the result of 1970 examination was declared, the marks received by the petitioner only in the two theory papers of 35 marks each were shown in the mark-sheet and the marks secured by her in practical test were not shown there. On that basis she was declared to have failed. She consequently filed this writ petition, alleging that she was entitled to get her result declared after adding the marks she received in the practical test also in which she had appeared.
2. The contention on behalf of the petitioner is that since she had failed in the subject of Physics and there was at that time no bifurcation of the examination into theory and practical, she must be deemed to have failed in the whole subject of Physics and not in any part thereof. Consequently in the examination of 1970 she appeared in the whole subject as it was examined then and was entitled to receive credit for all the marks received in the whole subject.
3. On behalf of the respondent Board the contention in reply is that since in 1969 the examination was only in theory and there was no practical examination, in 1970 also her examination in theory alone was relevant and the marksshe received in practical examination could not be added to see whether she had passed in the subject. For this contention reliance is placed on Regulations Nos. 140 and 141 of the Board, which are as under:--
'140. Candidates shall be declared tohave passed the Examination, if they secure 33 per cent of the marks in the subjects in which they appear at the supplementary Examination. No division shall, however, be awarded to such candidates.'
'141. Candidates who failed either in the theoretical or practical part of a science subject shall be required to pass only in the part in which they have failed. The minimum pass percentage shall be the same as in the case of candidates appearing in all subjects.'
Learned counsel appearing for the Board contended that according to the above-quoted Regulation No. 141, the petitioner having failed in theory papers was entitled to appear only in theory papers in the supplementary examination. We are unable to agree with this contention. Regulation No. 141 applies only to those candidates who had originally appeared in subjects which had been bifurcated into theory and practical examinations. Where a candidate is not originally examined in theory and practical examinations Regulation No. 141 can have no application. It is only when a candidate has been examined both in theory and practice and failed in one of the two that the candidate will have to appear in that part in which the candidate had failed. But in the present case the petitioner was originally not examined in theory and practice both. When she was examined there were two theory papers only of 50 marks each. The whole subject carried 100 marks and she had to obtain 33 marks out of 100 in order to succeed. In 1970 the method of examination was altered and the two theory papers were of 35 marks each and there was a practical examination of 30 marks. Naturally, when the candidate appeared in 1970 examination along with regular candidates and received papers of 35 marks only, she was bound to think that she was to appear in the practical examination also, so that she appears in the whole subject carrying 100 marks. There was nothing wrong in that line of thinking and it was on that basis that she seems to have been permitted by the Principal in charge of the examination centre to appear in the practical test also. Regulation 140 only applies.
4. Learned counsel appearing for the Board has drawn our attention to the Resolution of the Board dated 9th December 1969 in which in paragraph 4 it has been said that the candidates who havefailed in 1969 will be examined in the supplementary examination according to the same prospectus which prevailed in 1969 and it will not be necessary for them to appear in the practical examination although it may have been introduced in 1970. It is significant to note here that even in this resolution it is not said that the candidates will not be allowed to appear in the practical examination. This resolution was circulated to the Principals in charge of the examinations in March 1970 i. e. shortly before the actual holding of the examination. In paragraph 7 (f) there was a direction that those candidates who were appearing for supplementary examination in subjects in which practical examination has been introduced in this year will appear only in the theory papers in those subjects. In this direction also there is no prohibition against permitting a candidate to appear in the practical examination.
5. It may also be noted that no separate papers were set for those candidates who were to appear in the supplementary examination according to 1969 prospectus, so that the papers given to them might have carried 50 marks each showing that by solving those papers the candidates would exhaust the whole subject. The rules and the directions issued by the Board were not very clear and were not specific that the candidates could not appear in the practical test and that the marks obtained in practical test were wholly irrelevant and could not be added to the marks obtained by the candidates in theory papers.
6. It was also contended by the learned counsel appearing for the Board that whether the papers were of 70 marks or of 100 marks would not make any difference, for the candidate would pass at 33% whatever be the total marks assigned to the papers. We are unable to agree with this line of reasoning. When marks are awarded to a candidate for each question it is very material to see what marks have been assigned to each question. In a case in which there is a practical examination also the standard of marking is different from that in which there is no practical examination and the ability has to be judged only upon the papers in theory, and in such a case it would be unjust for some candidates to exhaust the subject on the two theory papers alone when others are being examined in theory and practice both. It is just and proper that candidates examined in the same subject and same papers be placed in the same position so that the standard of giving marks may be the same and all the candidates may be placed in the same position for their success and failure.
7. Considering all the circumstances we are of opinion that the rules and regulations under which the examination of 1970 was held, the whole subject of Physics consisted of 100 marks including practical examination also and there being no clear prohibition for the candidates appearing in the supplementary examination for appearing in the practical test, it is just and proper that the marks obtained by the petitioner in practical examination should be added to the result and then her result declared.
8. We consequently allow this petition, set aside the result declared for the petitioner and direct the Board to reconsider the matter and declare the result after taking into consideration the marks obtained by her in the practical examination. Parties will bear their own costs. The amount of security deposited by the petitioner shall be refunded to her.