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Mrs. Kusum NitIn Diwanji and anr. Vs. Gujarat Secondary Education Board - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR978
AppellantMrs. Kusum NitIn Diwanji and anr.
RespondentGujarat Secondary Education Board
Cases ReferredM. C. Khandelwal v. Chairman
Excerpt:
- - 2 has got locus paenitentiae to be declared as having failed in the said examination and that he wants to exercise that option and consequently, the respondent board be called upon to declare petitioner no. 2 to have failed in the said examination by enabling him to have the benefit of amended regulation 29(5). thereafter, a second amendment was moved to the petition on 9-12-1982 whereby two sub-paras were sought to be added to para 12 under which additional submissions were made contending that petitioner no. shelat, learned advocate for the respondent board submitted oral arguments in refutation of the averments made in the petition as orginally framed as well as in the amended parts of the petition. 2 in the concerned subjects clearly involved a patent error and shows that.....s.b. majmudar, j.1. petitioner no. 2 who is a minor challenges in this petition, under article 226 of the constitution, his result in the subjects of mathematics, chemistry, physics and biology obtained by him in the higher secondary certificate examination held by the respondent board in april 1982. petitioner no. 1 is the mother of minor-petitioner no. 2.2. in order to appreciate the nature of the grievances put forward by the petitioners, it is necessary to note a few relevant facts. petitioner no. 2 appeared at the higher secondary certificate examination conducted by the respondent board in april 1982 from baroda centre through vidyakunj english medium higher secondary school, baroda. petitioner no. 2's seat number was b-20068. he had appeared in the said examination in science.....
Judgment:

S.B. Majmudar, J.

1. Petitioner No. 2 who is a minor challenges in this petition, under Article 226 of the Constitution, his result in the subjects of Mathematics, Chemistry, Physics and Biology obtained by him in the higher secondary certificate examination held by the respondent board in April 1982. Petitioner No. 1 is the mother of minor-petitioner No. 2.

2. In order to appreciate the nature of the grievances put forward by the petitioners, it is necessary to note a few relevant facts. Petitioner No. 2 appeared at the higher secondary certificate examination conducted by the respondent board in April 1982 from Baroda centre through Vidyakunj English Medium Higher Secondary School, Baroda. Petitioner No. 2's seat number was B-20068. He had appeared in the said examination in science stream. The respondent board is a statutory board which is entrusted with the function of conducting examinations of higher secondary standards as per the provisions of the Gujarat Secondary Education Act, 1972 and the Higher Secondary Certificate Examination Regulations, 1977. Petitioner No. 2 was declared to have passed the aforesaid examination in science stream. The grand total of marks obtained by him as per the certificate issued by the Board is shown to be 408 out of 800. Thus, the petitioner No. 2 scored 51% of marks at the said examination. Xerox copy of the mark sheet issued to him declaring him to have passed from the science stream in April 1982 examination is annexed at annexure 'A' to the petition.

3. The petitioners' case is that they were shocked and surprised when the result of petitioner No. 2 was read by them. According to the petitioners, petitioner No. 2 is a brilliant student and he could not have obtained such low marks so far as papers of Mathematics I and II, Physics, Chemistry and Biology went. The petitioner's case is that even while appearing in science stream examinations in 8th and 9th standards, petitioner No. 2 had got distinction marks in Mathematics and science subject. Under these circumstances, according to the petitioners, the result of petitioner No. 2 as per the mark-sheet at annexure 'A' did not reflect the correct position and the performance of petitioner No. 2 appeared to have been under-assessed so far as the aforesaid subjects were concerned. It has been submitted by the petitioners that petitioner No. 2 is a brilliant student and it is not possible for him to secure less marks because of the examination pattern laid down for science stream subjects. Under these circumstances, petitioners have filed the present petition requesting this Court to issue a writ of mandamus or certiorari or any other writ for quashing the result of petitioner No. 2 as reflected by the mark sheet at annexure 'A' and by further prayer, it is requested that the respondent be directed to re-assess the papers of petitioner No. 2 in all the subjects, particularly in the subjects, of Mathematics I and II, Physics, Chemistry and Biology, and that the respondent be called upon to amend the result of petitioner No. 2 in the light of re-evaluation or re-assessment of the concerned answer papers. Pending this petition, amendments were moved on two occasions. On 13-8-1982, by amendment, para 13A was added to the petition wherein it has been submitted that as per amended Regulation 29(5) of the Higher Secondary Certificate Examination Regulations 1977, petitioner No. 2 has got locus paenitentiae to be declared as having failed in the said examination and that he wants to exercise that option and consequently, the respondent board be called upon to declare petitioner No. 2 to have failed in the said examination by enabling him to have the benefit of amended regulation 29(5). Thereafter, a second amendment was moved to the petition on 9-12-1982 whereby two sub-paras were sought to be added to para 12 under which additional submissions were made contending that petitioner No. 2 even though he may be treated to have passed the said examination from science stream in April 1982, is entitled to reappear at the said examination in March/ April 1983. The petition was admitted to' final hearing by me last year. Earlier, notice pending admission was ordered to be issued in the present petition. In response to the said notice, one Rajni N. Shah, examination Secretary of the respondent board has filed his affidavit-in-reply on 18-8-1982 opposing the petition. No further affidavit-in-reply has been filed on behalf of the respondent board after the petitioner was admitted to final hearing and even after amendments were granted to the petition. However, Mr. J. A. Shelat, learned Advocate for the respondent board submitted oral arguments in refutation of the averments made in the petition as orginally framed as well as in the amended parts of the petition. When the petition reached final hearing before me Mr. Raval learned Advocate for the petitioner raised the following contentions in support of the petition:

1. The respondent board is liable to be called upon to reassess the answer books of petitioner No. 2 at the said examination so far as subjects of Mathematics, Papers I and II, Chemistry theory. Physics theory and Biology theory, go.

Mr. Raval submitted, that looking to the brilliant academic career of petitioner No. 2 all throughout, while he was student in science stream from standard VIII onwards, assessment of marks of petitioner No. 2 in the concerned subjects clearly involved a patent error and shows that petitioner No. 2's performance has been undervalued and underrated and hence petitioner No. 2 deserves to be granted reassessment of the concerned papers.

2. It was alternatively contended by Mr. Raval that the respondent board has amended regulation 29 by inserting Sub-regulation (5) and under the said amended regulation 29(5), petitioner No. 2 is entitled to exercise an option of being declared unsuccessful at the said examination in as much as in the paper of Physics theory, petitioner No. 2 has been granted 5 additional marks over and above 30 and has been accordingly declared to have passed in Physics theory paper by getting 35 marks.

4. Mr. Shelat, learned advocate for the respondent combated the aforesaid contentions raised by Mr. Raval in support of the petition. I shall deal with the aforesaid two contentions canvassed by Mr. Raval in the same sequence in which they were raised before me. So far as the first contention of Mr. Raval is concerned, it must be noted at the outset that no examinee has any inherent right to get reassessment of his answer books on the ground that, according to him, the examiner has under-assessed the worth of his answers. Right to get answer papers re-assessed has to flow from a statutory provision by way of any section in the Act or in any regulations or rules having force of law. As noted earlier, the respondent board functions as examination authority under the provisions of the Gujarat Secondary Education Act, 1972,, Higher Secondary Certification Examination Regulations, 1977 have been framed by the respondent board to regulate procedure for conducting higher secondary certificate examinations. It is not contended before me that the said regulations have no statutory force. Mr. Raval for the petitioners invited my attention to regulation No. 32 whereunder, according to him examinee has been given a statutory right to call upon the board to undertake re-assessment of his answer books on the ground that according to the examinee, his answers have been under valued. Before I proceed to examine the parameters of regulation 32, it is necessary for me to notice two Division Bench judgments of this Court rendered in the context of the very same controversy which has been raised by Mr. Raval in the present proceedings. A Division Bench of this Court consisting of S.H. Sheth (as he then was) and G.T. Nanavati, JJ. examined this very question. In the context of various regulations framed by the respondent board, the Division Bench came to the conclusion that there is no provision in the regulations framed by the respondent board under which the examinee is conferred a right to call upon the board to reassess his answer books on the ground that his answers have been under-assessed. Thus, strictly speaking, the first contention raised by Mr. Raval in support of the petition is no longer res-integra. It is squarely covered by the aforesaid two division Bench decisions of this Court. Mr. Raval however submitted that regulation 32 was not pointed out to the Division Bench which decided the aforesaid two cases and hence, he is entitled to re-argue the matter.

Before I proceed to consider the scope of regulation 32, it would be profitable to have a close look at the aforesaid two Division Bench judgments which have a direct bearing on the point. In Kumari Priti M. v. Gujarat Secondary Education Board 21(2) G.L.R. 296 the Division Bench consisting of S.H. Sheth (as he then was) and G. T. Nanavati, JJ. considered the case of a student who had appeared at the higher secondary certificate examination held by the respondent Board in April 1980. She had appeared in the science stream of that examination. She was declared to have passed the said examination, but on obtaining mark sheet, she found that in Mathematics papers I and II and Biology, she had secured unduly less marks. According to the petitioner of that case assessment of her answer books involved under assessment and under evaluation. She therefore filed a petition in this Court under Article 226 of the Constitution requesting this Court to issue a writ of mandamus directing the respondent board to reassess her answer books. Repelling this contention, raised on behalf of the petitioner of that C.J.se, the Division Bench speaking through S.H. Sheth, J. held that if the regulations do not provide for re-assessment of answer books, no student can claim it. A court of law cannot perform the role of a legislature and create such a right as legislation may do where there is none. The Division Bench in its turn relied upon an earlier judgment delivered by the same Division Bench in connection with an identical question. Relying on the said judgment in Rajendra R. Dave v. Gujarat Secondary Education Board 21(2) G.L.R. 318 it was held as under:

So far as ressessment is concerned, the rules made by the board do not permit any re-valuation. Indeed, there is no express prohibition against re-valuation. Gujarat Secondary Education Board which is a statutory Board holds the examination in accordance with law under which it functions. The examination is the creature of that law. The examination is therefore held and results are declared in accordance with the conditions laid down under the law. If such a law provides only for retotalling of marks or reverification and does not permit reassessment, it cannot be said that such a law is bad. To say that every student must have a right of assessment, is going too far in interfering with the working of the autonomous bodies operating in such fields.

I may now turn to the aforesaid earlier judgment of the same Division Bench which is reported in the same volume at page 318. In the case of Rajendra Dave (supra), the same Division Bench considered the very same question. S.H. Sheth, J. speaking for the Division Bench even on that earlier occasion, took the view that:

The petitioner student himself could not have formed a subjective opinion about his own performance as if he was an examiner and could not have come to the conclusion that his papers were under-valued. If such an opinion is permitted to be canvassed every student will state that in his opinion his answer books have been under-valued and that they should be re-assessed. Performance shown by a student at house cannot in law be made the subject matter of a prima facie opinion as regards his performance in the examination hall.

It was further observed:

Unless mala fides or malpractice is alleged against the examiners, moderators or the Board, the High Court should not interfere with the evaluation of the answer books of a student who has appeared at the examination.

The Division Bench then considered the rules framed by the respondent Board on the topic of examination and held that the rules made by the Board do not permit any revaluation. The examination is, therefore, held and results are declared in accordance with the conditions laid down under the law. If such a law provides only for retotalling of marks or reverification and does not permit reassessment, it cannot be said that such a law is bad. Referring to the jurisdiction of the court under Article 226, in connection with the controversy centering round reassessment or revaluation of the answer books of the examinee, S.H. Sheth, J. made the following pertinent observations:

In a working of authonomous bodies operating in specialized fields, the court of law should not stretch its long arms to interfere with the working of such autonomous bodies Unless the petitioner makes out a case of mala fides or a malpractice against anyone of them. The court would like to set limit to its jurisdiction in such cases and confine it to a mala fide action or a malpractice affecting a student. To extend its jurisdiction beyond it is to take an impractical and inexpedient view. If we fall prey to the temptation of extending oar jurisdiction far too wide without setting well defined limits to it, we shall be facing a very sad day, nay, we have started facing it. Rights thrive in a democracy as they ought to but mushrooms must be sternly weeded out. Judiciary which is otherwise under a very heavy strain must discipline itself unless the last ray of hope which a common man has in this country is driven to be extinguished.

S. H. Sheth, J. in the aforesaid decision also dissented from the view expressed by a Division Bench of the Bombay High Court in writ petition No. 1906 of 1980 as well as the view expressed in another judgment of the Bombay High Court in writ petition No. 1909 of 1980. The same view is also taken by the Rajasthan High Court in its decision in M. C. Khandelwal v. Chairman, Board of Secondary Education and Ors. wherein G. M. Lodha, J. has held distinguishing the Bombay view laid down in : AIR1981Bom126 , that there is no inherent right to a student to get revaluation of his answer books., and that the court cannot enforce such inherent right by issuance of a writ against the respondent which was Board of Secondary Education, Rajasthan before the learned Judge. The aforesaid view of the learned Single Judge of the Rajasthan High Court is quite in accord with the view expressed by the Division Bench of this Court in the aforesaid two decisions which are binding on me. Even otherwise, the said view of the Rajasthan High Court is fully consistent with the settled legal position and I entirely concur with the same. In view of the aforesaid settled legal position, the first contention of Mr. Raval requires to be rejected.

5. However, I shall briefly deal with the additional submission made by Mr. Raval in support of the first contention which according to him, was not canvassed before the Division Bench of this Court which decided the aforesaid two cases. Mr. Raval submitted that regulation 32 was not pointed out to the Division Bench of this Court and, therefore, it came to the conclusion in the aforesaid two decisions that there was no statutory right for the student to ask for reassessment of his answer books by the respondent board, Regulation 32 to which my attention was invited by Mr. Raval is found in chapter VII of the Regulations framed by the respondent Board for the purpose of conducting higher secondary certificate examinations. Chapter VII deals with standard of passing the examination. It consists of various regulations starting from regulation 26 and ending with regulation 42. Regulation 28 deals with standard for obtaining the higher secondary certificate, while regulation 29 deals with condonation of deficiency of marks for passing in a subject. Regulation 30 deals with condonation of deficiency in special cases. I will have to deal with regulations 29 and 30 in greater details when I will proceed to deal with the second and alternative contention canvassed by Mr. Raval in support of the petition. Regulation 30A deals with review of performance of candidates of centres affected by a calamity. Next follows regulation 31 which deals with exemption which can be earned by a candidate at the examination and then follows regulation 32 which is captioned 'Publication of results. Mr. Raval heavily relied upon the third part of regulation 32. As it is inter connected with earlier two sub-parts, it is necessary to reproduce the same in extenso:

(1) The Board shall publish a list of candidates who have qualified for the. higher secondary certificate at the examination held in April and November respectively on such dates and in such manner as the Chairman may decide.

(2) In any case where it is found that the result of the examination has been affected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature, the examination committee shall have power to amend such result in such manner as shall be in accordance with the true position and to make such declaration as it may consider necessary in that behalf, provided that except as provided in regulation 32(3), below, no result shall be amended after the expiration of two months from the date of publication of the result.

(3) In any case where the result of the examination has been ascertained and published and it is found that such result has been effected by any malpractice, fraud or any other improper conduct whereby an examinee has in the opinion of the examination committee been a party to or privy or connived at such malpractice, fraud or improper conduct, the Chairman on the recommendations of the Examination committee, shall have power at any time, notwithstanding the issue of the higher secondary certificate or the award of a prize or scholarship to amend the result of such examinee and to make such declaration as it may consider necessary in that behalf.

As seen from the aforesaid regulation, publication of results is to be made as laid down by regulation 32(1) on given dates and in the manner as decided by the Chairman. Then follows sub-part II which lays down that if it is found that the result of the examination has been effected by error, malpractice, fraud, improper conduct or other matter of whatsoever nature, the result can be amended by the examination committee so as to bring it in accordance with the true position. It is difficult to appreciate how this second part of regulation 32 would cover the case of revaluation or reassessment of answer book of the concerned student. All that sub part II provides is that in cases where it is found by the examination committee that the declared result does not for any reason accord with true position as reflected by the answer books of the concerned student, power to amend the result can be exercised by the examination committee. Under sub-part. III, power to amend the result can be exercised by the committee even after period of two months which is laid down as an outer limit for exercise of such power by the examination committee under sub-part II. A combined reading of various clauses of sub-part II leaves no room for doubt that in contingencies contemplated by that sub-part, if the result of examination as declared is found to be defective on account of errors or any other reasons, the declared result can be amended in such given contingencies. But none of the clauses of said part II ever contemplates a case in which answer books as examined and assessed by examiner can be reassessed. Request of the examinee to reassess his answer books on the ground that his answers are unvalued clearly falls outside the scope and ambit of sub-part II. The said sub-part contemplates only those cases in which after assessment of the answer papers is over and if the result is declared on the basis of the said assessment, it is found that because of error or any malpractice or for any other reason, the declared result does not fall in line with the assessed evaluation of the answer books. It is in these circumstances that power is given to the examination committee to amend the results even after their declaration under regulation 32(1). But for this power, declared results could not have been amended at all. Thus, the stage contemplated by para (2) of regulation 32 is a stage which is posterior to the assessment of answer papers by the examiner and contemplates a situation which might have developed prior to declaration of the results on the basis of assessed answer papers wherein because of error or malpractice or fraud or for any other matter, declared result does not reflect the correct situation that emerges from the assessed answer papers. It is in this limited contingency that power to amend result once declared is available to the examination committee. Once such a contingency arises, power of amendment inhers in the examination committee upto two months from the date of publication of the result. It can be further extended under the contingencies as laid down by sub-para (3). However, the fact remains that no liability to reassess the answer books at the request of the concerned examinee is discernible in sub-para (2) or (3) of regulation 32. It is pertinent to note that regulation 32 deals with topic of amendment of results which are already declared on permissible grounds and nowhere deals with reassessment of answer books. In this connection, it is also interesting to have a look at regulation 34 which deals with verification of marks obtained by a candidate in a subject. The said regulation reads as under:

(1) Any candidate who had appeared at the examination may apply to the examination secretary for verification whether the candidate's answer in any particular subject have been evaluated or whether there has been a mistake in the totalling of marks in the subject. Such an application must be made by the candidate through the head of the school which presented him for the examination within 5 weeks of examination results and be accompanied by a fee of Rs. 15/ - for each subject.

(2) If as a result of the verification made by the coordinator under this regulation, it is discovered that there has been either an omission to evaluate and mark any answers or answer and/or a mistake in the totalling of the marks affecting ultimately the result of the candidate the fee for verification shall be refunded to the candidate.

(3) If on scrutiny a failed candidate is found to have passed in the examination he will be declared to have qualified for the higher secondary certificate.

(4) If a candidate having paid the prescribed fee under Clause (1) fails to forward his application for verification within two weeks of the payment of fees or having made the application within the aforesaid period omits to give the following details in his application:

(i) Name, examination seat No. and centre;

(ii) Subject in which verification of answer is desired;

(iii) Language used for answering the paper in the subject referred to in (ii) no steps shall be taken for verification and in such case only half the amount of the prescribed fee paid by a candidate shall be refunded to him.

The aforesaid regulation clearly shows that even on payment of prescribed fees for verification, the concerned examinee can require the board only to verify as to whether answer in a particular subject has been evaluated or not or whether there is any mistake in the totalling of marks in the subject. Thus, the verification contemplated by regulation 34(1) is a limited verification. It is a clarification about existing state of affairs as reflected by the answer book. If any answer has been left out of evaluation, then obviously the board will have to get it evaluated from the concerned examiner. That would be a case of evaluation or assessment for the first time and not a case of reassessment. Similarly totalling of marks can be checked up and if there is any mistake, it can be corrected. This is the limited scope of verification. But this is the end of the matter. Beyond that, there is no right given to any examinee to call upon the board to reassess his answer books on the ground that according to the examinee, there has been under-assessment in a given answer paper or in a given answer to a question. It is, therefore, obvious that even though the Division Bench of this Court in the aforesaid two decisions did not specifically refer to regulations 32 and 34, it did keep in view the fact that the scheme of the regulations as framed by the respondent board nowhere provides for any reassessment of answers at the request of the concerned examinee only on the ground that answers were under-assessed by the concerned examiner. Reliance placed by Mr. Raval to cull out such a right of the examinee on regulation 32(2) cannot render any assistance to the petitioner as the said regulation falls short of the claim put forward by the petitioners for getting the concerned answer books re-assessed. It may be noted at this stage that it is not the contention of the petitioners that in assessing the answer books of the second petitioner in the concerned subjects, any malpractice or mala fides were resorted to by the respondent board. In the absence of such allegation, therefore, the request of the petitioners for reassessment of answer books of the concerned subjects cannot be entertained by this Court in the present proceedings as laid down by the aforesaid settled legal position. The first contention of Mr. Raval is clearly answered against him by the ratio of the aforesaid two Division Bench decisions of this Court and his attempt to get out of the operation of the said ratio by placing reliance on regulation 32(2) is also found to be of no avail to the petitioners as discussed above. The first contention of Mr. Raval therefore, stands rejected.

6. That takes me to the alternative contention raised by Mr. Raval in support of the petition. The said contention springs from the subsequent development that took place during the pendency of this petition at admission stage. Regulation 29 was amended by the respondent by insertion of Sub-regulation (5). It is necessary to refer in extenso the said regulation along with its amendment (lending this petition.

(1) If a candidate excepting isolated candidates fails by not more than eight marks in not more than two subjects taken together such deficiency shall be condoned.

(2) If a candidate who appears in all the subjects required for obtaining the higher secondary certificate at one and the same examination fails in one or two subjects, the total of his deficiency in marks in one subject or both the subjects upto a maximum of 15 marks in aggregate shall be condoned on the basis of one mark for every one per cent by which the total marks secured by him in all the subjects exceed 35 per cent of the maximum number of marks obtainable in those subjects. For this half a per cent or more shall be rounded to the next whole per cent.

(3) A Candidate may be given the benefit of condonation under either Clause (1) or under Clause (2) above but not under both the clauses.

(4) In the case of a candidate appearing for the examination in isolated subjects under Clause (3) of Regulation 20 any deficiency upto four marks in any two--subjects shall be condoned.

Sub-para (5) was added to regulation 29 on 28-7-1982 by the State of Gujarat. The English rendering of sub-para (5) as amended reads as under:

If any candidate who has been declared successful as per sub-para (1) or sub-para (2) of this regulation, gives in writing (alongwith written consent of his guardian) to the Board within a period of five weeks of the declaration of the result, through the principal of his school that he does not want the advantage of sub-para (1) or sub-para (2) of regulation 29, then in such a case, condonation of marks that may have been made will be cancelled and the candidate will be declared to have failed in the examination, subject to the condition that the mark sheet issued to the concerned candidate declaring him to have passed and the certificate issued in that connection by the board will have to be returned to the Board alongwith the application. Such candidate will be entitled to appear at the examination immediately following the examination in question.

The aforesaid sub-para (5) has come into force from April 1982. In case of candidates concerned with the results of the examination of April 1982 period of five weeks limitation for application shall not apply. Mr. J. A. Shelat, learned Advocate for the respondent has produced before me a cyclostyled copy of the order passed under the signature of section officer of the Education Department, State of Gujarat mentioning the relevant details about amendment of regulation 29 by adding sub-para (5) thereto. The said order issued under the signature of the section officer. Education Department in the name of the Governor of Gujarat is taken on record of this case at annexure 'H' Mr. Raval contends that in the paper of physics-theory, the petitioner No. 2 is shown to have got 35 marks out of 100. But the petitioners have come to know that originally, only 30 marks were obtained by petitioner No. 2 in that paper, and 5 marks are added by way of grace by the respondent. Thus, the petitioner No. 2 has got benefit of regulation 29(2) and accordingly, the petitioners would be entitled to an option given under amended regulation 29(5). Mr. Raval submitted that petitioner No. 2 has already applied to the respondent board, exercising his option as laid down by regulation 29(5) and it is in this light that the alternative contention proceeds to the effect that the respondent be called upon to declare the petitioner No. 2 to have failed in the higher secondary examination of 1982 as provided by regulation 29(5). The aforesaid contention raised by Mr. Raval is met by Mr. Shelat for the respondent by submitting that 5 marks are added in the paper of Physic theory not by way of condonation of deficiency under regulation 29(2), but it has been uniformly done by the respondent board in exercise of its power under regulation 30. It is obvious that if respondent board has added 5 marks to the petitioner No. 2's answer book in physics theory in exercise of the power of the board under regulation 30, benefit of amended para (5) of regulation 29 would not be available to petitioner No. 2. But if on the contrary, the petitioner has got the benefit of 5 marks on account of regulation 29(2), then petitioner No. 2 would obviously be entitled to get the consequential-benefit of sub-para (5) of regulation 29 as amended in July 1982. Mr. Shelat for the respondent in this connection invited my attention to para 2 of the affidavit-in-reply filed by the examination Secretary, respondent board wherein it has been stated that the petitioner No. 2 had obtained 30 marks in physics theory, but in view of the resolution to increase uniformly marks obtained by all candidates in physics within certain range, petitioner No. 2's marks were raised to 35 from 30. Regulation 29 provided for condonation of deficiency of marks. If certain conditions are fulfilled in prescribed situation, candidate is entitled to condonation. When condonation takes place in pursuance of regulation 29, clauses 1, 2, 3, 4, marksheet would clearly indicate condonation. In the present case, petitioner No. 2's marks in physics are raised to 35 from 30 as stated above. A specimen case of condonation under regulation 29 has been annexed to the affidavit at annexure 'A'. The said mark sheet shows that when a candidate has been given benefits of regulation 29 by way of condonation marks, '**' are placed below the actual marks received by him. This '**' mark shows that deficiency in the concerned subject is condoned. Mr. Shelat says that so far as petitioner No. 2 is concerned, the mark sheet given to him nowhere shows that in the paper of physics theory, he got 30 marks and thereafter 5 marks were added by way of condonation Mr. Raval on the other hand submitted that but for regulation 29(2), there is no power with the respondent board to give on ad hoc basis 5 marks by way of grace to all the students who might have appeared at a given examination and, therefore, in substance, exercise of the power stems from the provisions of regulation 29(1) or 12) or for that matter, regulation 29(3) or (4), and consequently, petitioner No. 2 should be deemed to have been given benefit of regulation 29(2) when 5 marks were added to his total 30 marks obtained by him in the paper of physics theory and hence he is entitled to exercise option available to him under regulation 29(5) as amended. In order to resolve this controversy between the parties, it is necessary to have a close look at regulations 29 and 30. I have already extracted in extenso regulation 29. Regulation 30 provides for condonation of deficiency in special case and lays down that it shall be competent to the board to review special cases not covered by regulation 29 above. As the controversy centres round applicability of regulation 29(2), it is necessary to have a close look at the relevant clauses of the said para (2). It has been laid down therein that if a candidate who appears in all the subjects required for obtaining the higher secondary certificate at one and the same examination fails in one or two subjects the total of his deficiency in marks in one subject or both the subjects can be condoned subject to maximum 15 marks in aggregate. Thus, on the express language of regulation 29(2), it becomes obvious that before the said provision can be pressed in service by a candidate, it must be established that he had appeared in all the subjects and he failed in one or two of the subjects thereat. In the present case, the petitioner is not declared to have failed in any of the subjects for which he took his examination in April 1982. The mark sheet issued to him on the contrary shows that petitioner No. 2 had passed in all the subjects. Therefore, no question of condonation of deficiency in passing marks arises. The respondent contends that performance of all the students in Physics theory in April 1982 examination was poor. Therefore, as a uniform policy, it was decided by the examination committee to tone up the result by adding grace marks to the answer papers of all the students to bring them to the passing standard of 35 marks. That the said uniform policy decision for all the students was taken on 15-5-82. Mr. Shelat for the respondent has placed before me a copy of the said decision taken by the examination committee to grace up marks of the concerned candidates in physics theory so as to bring the concerned students on the passing level viz. upto the level of 35 marks out of 100. A copy of the said resolution reflecting the decision of the examination committee which was produced before me is ordered to be taken on record at annexure 'I'. I may stage at this stage that Mr. Raval for the petitioners had no objection to my taking on record the aforesaid resolution. Mr. Raval placing reliance on the recitals of the said resolution submitted that the examination committee of the respondent board had taken the decision to add grace marks in the Physics theory papers of the concerned candidates who appeared at the 1982 examination on the basis that the result of the students in the said subject was poor in April 1982 as compared to the result in the said subject in the previous year and that was the reason why grace marks were decided to be added. The scheme of grace marks as reflected by the said resolution shows that the examination committee divided cases of the concerned students into two categories. Those students who got 25 to 34 marks in Physics theory paper, were to be given requisite additional marks so as to make their passing marks 35. Those candidates who had got 21 to 24 marks were given grace marks from 3 to 6 to ultimately raise the mark of the concerned students to 27. Mr. Shelat submitted that even though students who got 21 to 24 marks were given grace marks so that their assessment of marks was raised upto 27 marks, these students naturally could not be declared to have passed as the passing marks were 35. For this second category of students, question of applicability of regulation 29 would arise as these students will be declared to have failed even though they had got 27 marks and 8 more marks which can bring them to the level of passing mark of 35 were to be given to them according to the provision of regulation 29(1) to (4), as the case may be. Mr. Shelat submitted that so far as petitioner No. 2 is concerned, he falls in the first category as he was a student who had got marks between 25 to 34 in Physics theory paper, as he had got 30 marks. For him, 5 marks were added not by way of condonation of deficiency of marks under regulation 29, but by way of uniform general policy of adding grace marks as per the decision of the examination committee, annexure 'I' .The aforesaid contention of Mr. Shelat is well sustained on the record of the case. As I have already noted earlier, the respondent board has not declared the petitioner No. 2 to have failed in physics theory paper. On the contrary, he is declared to have passed as he has been given 5 grace marks in physics theory paper so as to bring him on the passing level of 35 marks. Mr. Raval contended that there is no power with the respondent board to arbitrarily add grace marks in this manner. The answer to Mr. Raval's contention is supplied by regulation 30 which I have noted above. In all cases where in regulation 29 could not be applied, deficiency in marks could be condoned by the board in exercise of its power under regulation 30. Mr. Raval submitted that regulation 30 can be pressed in service in two contingencies. Firstly, when the case of a given candidate does not fall within regulation 29 itself and secondly, when a situation is found to have developed which required a special treatment but that also will be with reference to concerned candidates and not to the general body of students whose marks are to be reassessed by resorting to the policy of adding grace marks in the answer books of all the concerned students. In short, Mr. Raval submitted that regulation 30 is an exception to regulation 29 and must be read as such. So far as the last submission of Mr. Raval is concerned, there cannot be any dispute about the same. Regulation is an exception to regulation 29. But regulation 29 can apply provided a student is declared to have failed in a subject and is required to be given condonation marks to bridge the deficiency so as to bring him to the passing standard. In the present case, petitioner No. 2 had not undergone any such contingency. He was not declared to have failed in the subject of physics theory. Consequently, under regulation 29(2), there was no occasion to bridge the deficiency of marks in his case. The respondent board itself has declared the petitioner No. 2 to have passed in physics theory by giving him 35 marks. It is true that the said result was achieved by gracing up the assessment of petitioner No. 2's marks in physics theory paper from 30 to 35 marks. That was pursuant to the general powers of the board as found in regulation 30. Mr. Raval submitted that regulation 30 can. apply in case of a student who may have suffered from a larger deficiency than 15 marks as laid down by regulation 29 or larger deficiency then 8 marks as contemplated by regulation 29(1) and if in case of such student, it is found that he is otherwise brilliant and his performance in other subjects is exceptionally good, the board may exercise its special powers under regulation 30 and condone even larger deficiency of marks in a given paper. That may be one of the cases which can be covered, by regulation 30. But that does not mean that operation of regulation 30 stops at that stage and proceeds no further. On the express and very wide language in which regulation 30 is couched, it must be held that the said regulation can be pressed in service by the board to review special cases not covered by regulation 29 for the purpose of adding marks obtained by the concerned students. If such a power can be exercised in case of one student, there is no reason why it should not be exercised for the entire body' of students as a' class in given contingences one of which is found in the present case, as reflected by the decision of the examination committee at annexure 'I' Mr. Raval submitted that the resolution of the examination committee is totally de hors the provisions of the Act and the Regulations, as the examination committee has observed that it had decided to give grace marks to the concerned students as the result of physics theory in 1982 was poor as compared to 55% result in the earlier year. It cannot be said that the said consideration which weighed with the examination Committee in the present case is based on an extraneous ground. It is certainty within the power of the board and the examination committee to decide as to whether available result if found to be too poor, should be toned up or not, in the interest of the student community. It is further interesting to note that the aforesaid gracing of marks as made by the respondent board is directly beneficial to the concerned students. It is difficult to appreciate how a student who has been given more marks by way of grace can complain of the action of the respondent board in that connection.

7. It is true that it is only in retrospect of regulation 29(5) that the petitioners are driven to take up this extreme position and to urge that the grace marks given to petitioner No. 2 should be treated as cancelled. But this is neither here nor there. If the respondent-board has power to add grace marks to the assessed marks of concerned students with a view to toning up the result and if the board has bona fide exercised that power in the interest of student community at large, it cannot be said that the said action is ultra vires or de hors the provisions of the Act or the regulations as Mr. Raval would like to have it with a view to clutching at regulation 29(5). Once it is held that the respondent board was authorised and entitled to add grace marks to the total marks secured by students in any subject or subjects by way of general policy to tone up the result in exercise of its power under regulation 30, the conclusion is obvious. Addition of 5 marks to petitioner No. 2's result in physics theory paper was not by way of condonation of deficiency under regulation 29(2), but it was in exercise of the board's power under regulation 30. Before regulation 29(5) can help the petitioners, it must be shown that petitioner No. 2 had got 5 more marks in physics theory paper under the provisions of regulation 29(2).

8. As petitioner No. 2 got 5 more marks in physics theory paper not under-regulation 29(2), but in exercise of the board's power under regulation 30, the option available to the concerned student under regulation 29(5) who is declared unsuccessful at the given examination cannot be made available to petitioner No. 2 in the facts of the present case. Consequently, no mandamus can be issued to the respondent board to treat petitioner No. 2 who is declared to have passed in physics theory paper in April 1982 higher secondary examination to have instead failed in the said examination so that petitioner No. 2 can reappear at the said* examination in April 1983. As Petitioner No. 2 has already passed in April 1982 examination he cannot be permitted to have a second inning by way of second chance to appear at the very same examination. The second contention canvassed by Mr. Raval, therefore, is also found to be without any substance and consequently it stands repelled.

9. These were the only two contentions raised in support of the petition and as both of them are repelled, the inevitable result is that the petition fails. Rule issued therein is discharged. In view of the facts and circumstances of the case, there will be no order as to costs.


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