R.N. Misra, J.
1. Petitioner as a regular candidate of Christ College at Cuttack appeared for the Annual B. A. (Honours) Examination of 1976 held by the Utkal University from the B. J. B, College Centre, Bhubaneswar, with Roll No. 705290. His subjects were English, Modern Indian Language (Oriya) and Economics with Honours in Political Science. Under the appropriate Regulations of the Utkal University, there are two papers in English, one paper in M.I.L., three papers in Economics and six papers in the Honours subject, each paper carrying 100 marks. Petitioner appeared in all the papers but he was declared to have passed B.A. Examination without Honours. After publication of the results, the petitioner approached the Principal of Christ College for his mark-sheet and on receiving the sama (Annexure 1), he was surprised to find that he was shown absent in the first paper of Economics.
He, therefore, applied to the University for a fresh mark-sheet being apprehensive that there was some mistake because he had appeared in all the papers. The mark-sheet granted by the University also showed him as absent in Economic Paper I, Copies of the respective mark-sheets have been annexed as Annexures 1 and 2 to the writ petition. Petitioner had applied for admission into the LL.B. course but he was refused admission on the ground that he had not secured the minimum of 40% in the aggregate. Petitioner thereupon complained to the University that he had as a fact appeared in Economics Paper I and the University Authorities were not justified in not giving him any credit for the said paper. Petitioner approached the Principal of the B.J.B. College, the Centre from where he took the etxamination, and obtained a certificate (Annexure 3) running thus:--
'Certified that Shri Chittaranjan Chaudhury, Roll No. 70529C has appeared at the Annual B.A. Examination in Economics (Pass) P. I on dated 22-4-76 (1st sitting i.e. 10 A.M. to 1 P.M.). He has used the main khata bearing the No. A 531852 for the purpose of the said subject. It is verified from the Room Chart.'
Petitioner alleges that the University authorities were not prepared to act on the basis of the certificate in Annexure 3. Petitioner thereupon issued a lawyer's notice to the University and in reply, was told to approach the Principal of the Christ College for the revised mark-sheet, The Principal, on being approached by the petitioner, denied to have received any revised mark-sheet from the University concerning the petitioned and informed him in writing to that effect vide Annexure 6. Petitioner again approached the University authorities along with Annexure 6 and on this occasion, the Assistant Controller of Examinations informed him vide Annexure 7 :
'This is to inform you that the marks secured by you at the Annual B.Sc. (Honours) Degree Examination of 1976 have been sent to the Principal, Christ College. Cuttack. You are advised to get your marks from the Principal of your College. The Principal is being written in the matter.'
Petitioner again went to the Principal for the revised mark-sheet and obtained the same, as per Annexure 8. The original and the revised mark-sheets with reference to the three papers and the college marks in Economics are as follows:--
EconomicsOriginal Mark-sheetRevised Mark-sheet
Petitioner alleged in the writ application that the marks originally assigned to him in the third paper were adjusted between the first and third papers subsequently as seen from the revised mark-sheet. Petitioner alleged that he reasonably apprehended that the marks have not been awarded as per the Regulations but have been arbitrarily shown. He accordingly prayed for a direction to the University to show cause why the entry in the revised mark-sheet in Economics Paper III should not be quashed and replaced by the entry in the original mark-sheet and for other suitable direction as may be found proper.
2. Opposite parties 2 and 3 have not chosen to make any return to the rule nisi issued from the Court. The Controller of Examinations of the University has filed an affidavit in opposition and has pleaded that the petitioner was a regular candidate of the Christ College and had initially applied to take B.A. (Honours) Examination at the said Centre, Later he changed his centre to B.J.B. College at Bhubaneswar and was permitted to do so. The answer script of the petitioner in Paper I of Economics was sent to the Examiner appointed for that paper in respect of the B.J.B, College Centre. After awarding marks, the mark foils along with the answer scripts were returned to the University, Adverting to the practice followed for valuation of the answer scripts it has been further said thus: Each College sends an alphabetical list of candidates taking examination. Roll sheets are prepared and printed on the basis of such alphabetical list and such roll sheets are sent to the respective centres where the candidates put their signatures in token of evidence of appearing in the papers. The tabulation register is prepared from out of such roll sheets much before the! examinations are scheduled. The superintendents of the Centres also send list of absentee candidates. After receipt of the answer papers, tabulators are appointed to tabulate the marks for publication of the results and they examine the roll sheets and mark absent in the tabulation register those who are marked absent in the roll sheets. When the answer papers are sent to the Examiners, lists of answer scripts are also sent by the Centre Superintendents along with the answer scripts. Those candidates who are marked absent in the roll sheets are also indicated to be absent in the list of answer scripts sent to the Examiners. While filling up the marks foils, the Examiners also indicate the absence of such roll numbers in the mark foils.
Petitioner's name had been printed in the roll sheet relating to the Christ College. The Superintendent of the Christ College Centre finding petitioned absent therefrom had marked him absent. He had also intimated the Examiner in Economics Paper I, that petitioner was absent from that paper. Accordingly, on verification of the roll sheet of Christ College Centre and the mark foils in respect of candidates of that Centre for Economics Paper I, the Tabulator marked the petitioner absent in the tabulation register. Petitioner had actually secured 34 marks in the third paper as would appear from the mark foils submitted by the Examiner of that paper. Under the relevant Regulations the marks in different papers of a subject are to be taken together to ascertain the result. Eighty marks were necessary to pass in the subject of Economics but petitioner, as a fact, has secured 61 marks (27+34) and was falling short by 19 marks. By taking recourse to the Hard Case Rules which provide for moderation of results of cases of marginal failure and authorised addition of marks up to 10% of the maximum marks in the written papers, petitioner was assigned 19 marks which were) enough for declaring him to have passed.
When the petitioner asserted that he had taken examination in Economics Paper I, the matter was verified and his answer paper was found out from the B.J.B. College Centre papers. It was found that he had secured 184 marks in the! said paper. Necessary correction was made in the tabulation register and as he was also passing with the marks obtained by him in Economics Paper I, the addition given to him under the Hard Case Rules was deleted. It is stated that the petitioner has no cause of action and he is not entitled to any relief.
3. Petitioner filed a rejoinder wherein he pointed out that he must have been marked absent in all the papers from the Christ College Centre and if what had been pleaded in paragraph 3(f) was true, petitioner's result could not have at all been published. No indication has been given by opposite party No. 1, as to why the mistake was with reference to Paper I of Economies only.
4. At the hearing of this application, counsel for the University was called upon to produce) the original answer paper relating to Economics Paper III. An affidavit has been filed by the Controller of Examinations on 2-8-1978 to the effect that the examination papetrs of the annual and second B.A. examinations of 1976 including the B.A. (Honours) Examination had been sold away in auction and, therefore the answer paper was not available to be produced.
5. That there has been unpardonable negligence! on the part of the University in handling the matter cannot be seriously disputed. When petitioner was permitted to change the Centre front Christ College to B.J.B. College, appropriate alterations in relevant papers should have been made. Even if the list had already been printed, nothing stood in the way for carrying corrections. The method prescribed by the University is such that unless there be perfection in the records, the position is bound to be misleading. No justification has been indicated as to why appropriate correction was not made.
There is force in the contention of the petitioner that the explanation offered by the University in the counter affidavit for showing the petitioner to be absent in Paper I of Economics hag no basis at all. If absence was marked on the basis of the report of the! Centra Superintendent of the Christ College, petitioner should have been marked absent in all the papers because the petitioner did not appear from that centre at all. No explanation has been furnished by the University in its counter-affidavit or by counsel for the University at the hearing as to why the same position was not repeated so far as petitioner is concerned in the other papers by showing him absent. When the marksheet as per Annexure 1 was issued, petitioner was shown absent but he had been assigned 27 and 53 marks respectively in Papers II and III, There was no indication of 19 grace marks having been given in the third paper. When his answer book for first paper was found out, according to the allegation of the petitioner, 19 marks were assigned to him so as to square up the position and not to vary the total marks obtained by the petitioner in the subject. The 19 marks alleged to have been added to the petitioner's marks in the subject under the Hard Case Rules were deleted and the 19 marks alleged to have been secured by him in Paper I were taken into account.
6. Counsel, for the University has produced the Tabulation Register of the examination. On a reference to page 6 thereof relating to petitioner, we find that petitioner had initially been shown absent in Paper I of Economics, but later the marks of absence had been cancelled and 19 marks had been inserted, against the third paper originally 34 marks had been entered. There was an endorsement of addition of 19 marks which has been cancelled. No primary evidence to support the award of 19 grace marks under Hard Case Rules had been produced but in view of the entry in the Register referred to above, we are inclined to agree that originally in Paper III, 34 marks had been awarded, and subsequently the 19 marks were added. Addition of 19 marks was a decision of the Board and once the competent Board had taken the decision and awarded 19 marks there was no provision for cancelling the same, particularly after the results of the examination had been declared on the basis of the addition. No power in any of the University authorities has been shown to us by its counsel at the hearing to make such variation after the results have been published in accordance with the procedure laid down by the University.
It is not disputed that the presence of the first paper was noticed by the University long after the publication of the results. At that stage, if a variation had to be made, it had to be under the appropriate authority of law, i.e. under an enabling provision, Exercise of authority, in case power existed, had to be indicated and it was for the University to satisfy us that in exercise of such power which, vested in it the appropriate authority of the University had as a fact made the variation. The entire file opened by the University in relation to the petitioner's case had been produced by counsel. We do not find any mention of any order of the competent authority directing deletion to the alleged addition of the grace marks. We are not prepared to accept the submission of counsel that when the petitioner's answer paper in Economics Paper I was found out and it was noticed that he had secured 19 marks -- the same as the grace marks -- adjustment was made by deletion of the same from Paper III and allowing credit in Paper I. This could not be a ministerial act. In the file produced by Mr. Mohapatra appearing for the University is available a copy of the report of the Controller furnished to the Chancellor when it was called for on the representation of the petitioner. Therein it has been said:--
'Since he was short by 19 marks to secure the pass marks in the said subject and he was awarded the deficit marks, i.e. 19 by the Tabulator according to Rule 2 of the Hard Case Rules (copy enclosed) and as such his marks in Economics Paper III were raised from 34 to 53, i.e. 34+19=53.
On receipt of a representation from Sri Chaudhury (petitioner) to the effect that he had appeared in Economics Paper I and he was not absent in that paper, his answer script in Economics Paper I was traced out and the marks secured by him in that paper, i.e, 19 was taken into account and action was taken in the following way.
EconomicPaper I-19 Paper II-27 Paper III-34(original marks) Board's 19 marks reduced.College Marks-33
Petitioner had no occasion to know what happened in the office of the University which led to issue of two mark-sheets. All this was pleaded in answer to the writ application. Since the entire matter was within the special knowledge of the University authorities, it was for the University to disclose the relevant facts and plead and establish that the deletion was by an authorised process, No attempt has been made in this regard and even the papers in the connected file are completely silent about it. Once grace marks were added, and on that basis the result was declared, this could not be undone and the earlier position could not be disturbed unless there was specific provision for it. Therefore, we are obliged to hold that petitioner had secured 53 marks in Paper III as shown in the mark-sheets (Annexures 1 and 2).
Admittedly petitioner has received 19 marks in Paper I, Petitioner has alleged, taking advantage of the negligent way in which the matter has been handled by the University, that the first paper has not been properly valued and such marks as may be necessary to meet the situation have been assigned to him without proper assessment. Ordinarily, we would have found such an argument acceptable in view of the shifting conduct of the University authorities, but Mr. Mohapatra for the University rightly places reliance on the mark foils of Economics Paper I of the B.J.B. College Centre. As against the petitioner's roll number, 19 marks have been shown. We are, therefore, inclined to agree with Mr. Mohapatra for the University that the paper had been valued and 19 marks had been assigned. Petitioner is entitled to the credit of 19 marks in Paper I.
The net position, therefore, is in the subject of Economics petitioner obtained 19 marks in Paper I, 27 marks in Paper II and 53 marks in Paper III and 33 marks in the College examination. His total marks work out at 132 as against the credit of 113 marks which appear to have been given to him. The mark-sheets issued to the petitioner, therefore, do not represent the true position. We must hold that the petitioner is entitled to the credit of 132 marks in the subject of Economics.
7. Counsel for the University strenuously contended that the writ application is liable to be dismissed for laches and the petitioner had no right to maintain the writ petition. So far as laches are concerned, it is case of the University and not that of the petitioner that suffers from laches. This Court on more than one occasion pointed out that the University must conduct itself in a manner behoving of its status. Dealing with a case of another examinee in the case of Ananta Prasad Nayak v. Utkal University, ILR (1978) Cut 138 : (AIR 1978 Orissa 11) this Court had stated (at p. 18 of AIR):--
'.................. Universities have been set up for teaching and conducting of examinations. The institution is a big social trust. Thousands of students sit at the different examinations conducted by the Utkal University and accept the adjudicatory assessment made! of their performances by it. The system of examination has been intended to be foolproof. Acceptance of the assessment made by the University lies upon the same being just and correct. Social institutions accept the valuations to be appropriate on the basis that the performance is assessed in a dispassionate manner. In order that assessments made by the University have universal acceptance, it is absolutely necessary that the foolproof character of the process should not be doubted. If, however, after the answer papers are collected and are in the custody of the University they are available to be substituted, the basic confidence would soon be lost and the Utkal University would soon cease to be of any utility to Society. Examinations conducted by the University would be more a mockery than a social event...'
On that occasion this Court had directed a copy of the judgment to be transmitted to the Chancellor of the University for appropriate action. It is not known as to what has been done but one more instance has come exhibiting utter mismanagement in the discharge of the trust statutorily imposed on the University. In this case the results were published some time in July, 1076. Petitioner obtained the mark-sheet in the first week of Aug., 1976, and from the University soon thereafter. He approached the University and the Principal in turn between Aug., 1976 and Jan., 1977. When the University authorities turned a deaf ear, he had to issue a lawyer's notice asking for redress. At that stage only the University rose from slumber and discovered that the petitioner had appeared in the first paper of Economics and towards the close of Feb., 1977, the petitioner got the revised mark-sheet. Without loss of much time petitioner represented to the Chancellor but realising that no relief may come from that source, he moved this writ application on 17-8-1977. In the circumstances, we are not inclined to agree with counsel for the University that petitioner's application suffers from laches.
8. The next objection of counsel for the University is that petitioner's application does not come under any of the provisions of Article 226 of the Constitution. Counsel for the petitioner has conceded that Clause (a) of Article 226(1) of the Constitution has no application, but it is his contention that Clauses (b) and (c) directly apply. Undoubtedly, the University Act authorises holding of examinations. Statutes and Regulations have been made thereunder for implementation of the said statutory purpose and examinations held by the University have thus statutory basis. In dealing with the matter, the University committed mistakes which provided cause of action for the proceeding. We are, therefore, inclined to agree with counsel for the petitioner that the matter squarely comes under the ambit of Clauses (b) and (c) of Article 226(1) of the Constitution. The objection of the counsel for the University is, therefore, overruled, I
9. The net result, therefore, is that petitioner must be held to have secured 132 marks in the subject of Economics as against 113 as shown in the various documents referred to above. We direct the University authorities to rectify the mistakes in their own records and furnish a free mark-sheet to the petitioner (as petitioner has already paid for the mark-sheet obtained by him) within thirty days from the date of service of the writ. Ordinarily we should have awarded costs to the petitioner, but considering the fact that opposite party No. 1 is the University, we direct parties to bear their own costs.
B.K. Ray, J.
10. I agree.