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Asha Ram Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1963/74
Judge
Reported in1983WLN(UC)505
AppellantAsha Ram
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Excerpt:
grace marks rules - rule 2--grace marks can be added maximum to 5 marks and subject to candidate's entitlement--internal assessment and external paper are necessary limbs of one subject--held, candidate be deemed to have passed in educational psychological and health education by grace marks and also in b.s.t c. examination in 1970.;subject to a maximum of 5 marks and also subject to the untitlement of the candidate according to rule 2 of the grace marks rules, as many grace marks may be added to the marks obtained by such candidate in one or two external papers, which would have the effect of declaring the candidate as having passed in the subject or subjects. as there is only a notional increase in the grace marks, so that the candidate may be deemed to have passed in the external paper..........for decision in this writ petition about the interpretation of the rules relating to giving of grace marks at the departmental examination conducted by the education department of the state of rajasthan.2. the petitioner is a third grade to cher employed in the education department of the state of rajasthan. in the year 1970 he appeared at the b.s.t.c. examination held by the registrar, departmental examinations, of the education deppartment, rajasthan. the petitioner was successful in all other subject except in the subject of educational psychology and health education with the result that he was declared to have failed at the bstc examination, 1970. in the aforesaid subject, out of a total of 100 marks, 25 marks were meant for internal assessment, while 75 marks were assigned to.....
Judgment:

D.P. Gupta, J.

1. A short but intersting question arises for decision in this writ petition about the interpretation of the rules relating to giving of grace marks at the departmental examination conducted by the Education Department of the State of Rajasthan.

2. The petitioner is a third grade to cher employed in the education Department of the State of Rajasthan. In the year 1970 he appeared at the B.S.T.C. examination held by the Registrar, Departmental Examinations, of the Education Deppartment, Rajasthan. The Petitioner was successful in all other subject except in the subject of Educational Psychology and Health Education with the result that he was declared to have failed at the BSTC examination, 1970. In the aforesaid subject, out of a total of 100 marks, 25 marks were meant for internal assessment, while 75 marks were assigned to external examination. According to the rules governing the said departmental examination the candidate was required to obtain atleast 25% marks in the external examination while he was required to obtain 33% marks in the aggregate of internal and external examination. In the subject of Educational Psychology and Health Education, the petitioner got 12 marks in the internal assessment while he obtained 17 marks in the external paper and thus, he obtained only 29 marks out of 100 in the aggregate in the aforesaid subject. The petitioner thus fell short of 2 marks only in the external paper of Educational Psychology while he was short by 4 marks in the aggregate of the internal examinations, in the subject of Education Psychology. There is no dispute between the parties that the petitioner had failed to secure the minimum pass marks in the external paper required at the aforesaid examination, which was 19 and he also failed to secure the minimum 33% marks in the aggregate in the subject of Educational Psychology.

3. Now, the question, which arises for consideration, is about the application of grace marks rules, a copy of which has been produced by the respondents as Ex. B/2. According to the Grace Marks Rules, the candidates appearing at the various examinations conducted by the Education Department of the State, the grace marks would be available only in the externa! examination paper. According to the following table, in such case where the marks obtained by the candidate are less than the minimum pass marks:

By one to 5 marks 1 grace mark

By 6 to 10 marks 2 grace marks

By 11 to 15 marks 3 grace marks

By 16 to 20 marks 4 grace marks

By 21 to 25 marks 5 grace marks

The explanatory notes which have been appended below the aforesaid grace marks rules provide that in no case more than 5 grace marks would be given to any candidate if the grace marks were required to be given in two external examination papers, then 5 marks could be distributed in two external papers. Further it has been provided that only such grace marks shall be given, subject to the maximum 5 marks, as would be necessary for the candidate to pass the examination, meaning thereby that even if a candidate may be entitled to 5 grace marks yet, if he required only one grace mark for passing the examination, then only one grace mark will be given to such candidate. It has also been specified that grace marks shall not be added to the total obtained by the candidate for the purpose of determining the division. The main rule cleary provides that the grace marks shall be awarded for a particular purpose to the extent of 5 marks, namely, to enable the candidate to pass the examination. Thus the grace marks would not be added to the marks obtained by the candidate for determination of division, but they would be notionally given only in the external Paper to enable such candidate to pass the examination. But a further provision has been made that if a candidate fell short of one mark only in obtaining I or II Division, then one mark will be added in the total so as to enable the candidate to obtain the requisite Division.

4. The grace marks Rules, therefore, make it abundantly clear that the candidate can be given grace marks upto a maximum of 5, according to the table referred to above, in the external paper, but it would only be a notional increase in the particular subject or subjects and would not be added to the total marks obtained by the candidate in the examination and further that only as many grace marks would be necessary for the candidate, to pass. In the case of the petitioner, the aggregate marks obtained by him exceed the minimum pass marks by 43 marks and as such the petitioner was entitled to maximum 5 grace marks, or as many grace marks to the limit of 5 marks as might be necessary for him to pass the examination. However, if only four grace marks would have been given to the petitioner in the external paper relating to Education Psychology and Health Education, then he would be deemed to have obtained 21 marks in that paper and 33 marks in all, in the subject of Educational Psychology, with the result that he would have passed in the subject and in the examination as well.

5. The interpretation which has been sought to be placed by the department on the grace marks rules, in the reply to the writ petition, is that the petitioner fell short of two marks in the theory paper and four marks in the aggregate of internal and external papers and thus, he required six grace marks for passing the examination, but as there was a limit of 5 grace marks only in the relevant rule, the petitioner could not be declared to have passed she examination with the help of grace marks. However, at the time of arguments, learned Additional Government Advocate was unable to support the aforesaid interpretation, because the rule does not provide for adding grace marks to the aggregate. On the other hand, the rule expressly provides that grace marks would be added to external or theory paper only. Mr. Maheshwari, in these circum tances, made an alternative submission and his argument was that only as many grace marks could be given to the candidate under the Rules which ever were required for him to pass in the particular theory or external paper, and he relied upon Note 3 appended to the grace marks rules in support of the interpretation he sought to place upon the Rules. It may be observed that note 3, relied upon by the learned Additional Government Advocate, does provide that even if a candidate is entitled to maximum 5 grace marks, yet only as many grace marks would be allowed to him, as would be necessary for him to pass. But, to my mind the interpretation sought to be placed by Mr. Maheshwari, appears to be too narrow, because according to him only as many grace marks would be added to the marks obtained by the candidate in the external or theory paper as would be necessary for him to pass in that paper. It is possible that the result thereof may, in a number of cases, be that the candidate may not get the advantage of grace marks rules at all, even if he may require only 1 or 2 grace marks for passing in one subject and may be entitled to 5 grace marks according to the schedule, with reference to the total marks obtained by him in the examination. For example, if the candidate has obtained 20 marks in the theory paper but has obtained only 32 marks in the aggregate of the internal assessment and the external or theory paper, then according to the interpretation sought to be placed by Mr. Maheshwari, on the grace marks Rules, such a candidate, though short by only are mark in one subject, would not be able to avail of the benefit of the grace marks Rules. In my view, neither the language employed in Note 3 leads to interpretation sought to be placed by Mr. Maheshwari, nor the intention of the framers of the rules appears to be that as many grace marks should be given to a candidate as would be necessary for him to pass in the theory of the external paper only. But a plain and sample reading of the rule leads to the conclusion that grace marks, although could only be given in theory or external paper, should be notionally increased in such a manner, to the maximum limit of 5 marks and subjet to the entitlement of the candidate, as to allow the candidate to pass the examination. If the grace marks, even according to the entitlement of the candidate and subject to the limit of 5 marks, are not given in such a manner as to allow him to pass in the particular subject in which the grace marks are added, then the very purpose thereof may be frustrated in a large number of cases. The language employed in Rule 3 should be given a proper and rational meaning. It is significant to note that Rule 3 does not say that as many grace marks should be given as would be required by the candidate to pass in the theory or external paper only, but it says that as many grace marks should be given which may be necessary for the candidate to pass the examination. As the rules provide that a candidate should obtain atleast 25% marks in the external or theory paper and also 33% marks in the aggregate of the internal assessment and external or theory paper, the notional additional of grace marks in the marks obtained in one subject should be made to the extent permissible under the Rules so as to enable the candidate to pass not only in the theory paper but also in the aggregate of the internal assessment and the theory paper. Thus, if only two grace marks are added in the case of the petitioner to the external paper in the subject to Educational Pyschology and Health Education, he would no doubt get 19 marks in that paper and may be successful in that paper yet he could not be declared to have passed the examination, because the aggregate of the internal assessment and the marks obtained by him in the theory or external paper, as increased by two grace marks, would make 31 marks in all. Although the petitioner is entitled to 5 grace marks according to rules, as he obtained more than 25 marks in the total above the minimum pass marks, yet he will not be able to pass the examination because of his not getting 33% marks in the subject of Educational Psychology and Health Education. However, if note 3 appended to the grace marks Rules is interpretated in the manner, I have suggested above and 4 grace marks are added to the marks obtained by the candidate in the external paper, then notionally he would have 21 marks in the external or theory paper and the aggregate marks of the internal assessment and the external paper would be 33 and thus the candidate would be declared to have passed not only in the external paper but also in the subject of Educational Psychology and in examination as well. It is not in dispute that the petitioner was entitled to grace marks upto a maximum of 5 marks and I see no reason why he should not be given four grace marks according to his entitlement and which would give him the desired relief. Even 5 grace marks, according to the Rules, could be divided into two subjects, but in not more than two. But the external paper and aggregate of the same subject can not be held to be two subjects as the respondents have tried to do by splitting the grace marks required by the petitioner as two in the external or theory paper and four in the aggregate. There is no Rule containted in the grace marks Rules for providing a increase of marks in the aggregate of internal assessment and theory paper. Whatever grace marks have to be added, they must be increased in the theory or external paper only. Of course, adding grace marks to the marks obtained by the petitioner in the external paper would naturaly make a corresponding notional increase in the aggregate of the internal assessment and the external or theory paper in the same subject for the purpose of passing in the particular subject. But such a notional increase in the theory or external paper and consequent increase in the aggregate of the same subject cannot be considered as an addition in the marks obtained by the candidate in two subjects.

6. The petitioner has also alleged that discriminatory treatment has been given to him in as much as other candidates who were similarly situated, were allowed grace marks while the petitioner was not given the benefit of the grace marks Rules. Some illustrations have been given by the petitioner in this respect. The respondents in their reply have given a table at page 46 to show that the total deficiency in none of the illustrations pointed out by the petitioner was of more than 5 marks. In the table given by the respondents they have added grace marks separately in the external paper as also in the aggregate of the internal assessment and the external paper. But, as mentioned above, the grace marks Rules do not provide for giving grace marks separately in the external paper and also the aggregate or the internal assessment and the external paper of the same subject. On the other hand, the grace marks Rules expressly provide that grace marks should be given only in the external papar. Thus, the view taken by the respondents in clearly erroneous. The illustrations given in the table contained in the reply of the respondents at page 46 however, can be adequately and properly explained if the interpretation which I have sought to place on the grace marks Rules is given to such rules and if as many grace marks are added to the marks obtained by the candidate in the external paper, subject to his entitlement and the limit of 5 marks, as would be sufficient for him to pass in the subject or subjects concerned. Now, if the argument of the learned Additional Government Advocate is accepted then in the illustrations given at serial No. 2, 3, 6 and 7 in the table, contained in the reply to the respondent at page 46, could not have been given any grace marks, as the candidate concerned bad obtained 19 or more marks in the external paper and did not require any marks at all to pass in that paper. The difficulty with the candidates at No. 2, 3, 6 and 7 was that they had obtained 31 or 32 marks in the aggregate of the internal assessment and external paper and, therefore, they needed 1 or 2 grace marks, as the case may be, for obtaining the minimum pass marks in the subject, viz. 33 marks. Thus, the narrow interpretation sought to be placed by the learned Additional Government Advocate cannot be accepted, because if that would have been the proper interpretation of the grace marks Rules, then only as many grace marks could have been added to the marks obtained in the external paper by a candidate as would have enabled him to pass in the external paper alone. In that event, as mentioned above, the candidates at serial Nos. 2, 3, 6 and 7 could not have been awarded any grace marks at all and they could not have been declared as passed.

7. However, according to the explanation furnished in the reply and shown in the table referred to above, grace marks have been added separately in the external paper and in the aggregate of the internal assessment and external paper, which is contrary to the Rules. There is no provision in the grace marks Rules for adding grace marks separately to the external paper and in the aggregate, as is sought to be done by the respondents in their reply. If grace marks are added to the marks obtained by a candidate in the external paper, they would naturally be added to the aggregate of that subject. What note (1) to the grace marks Rules provides is that the maximum grace marks i.e. 5 could be split up, if necessary to give grace marks in the external papers in two subjects, but the grace marks cannot be split up between one external paper and the aggregate relating to the same subject. That would be duplicating the very same default on the part of the candidate, as in illustration (I), the candidate had obtained 16 marks in the external paper and required 3 grace marks to make up the minimum 10 marks required to pass in the external paper. If 3 marks are so added in the external paper even notionally, then along with the 15 marks obtained by the candidate in the internal assessment the candidate would be deemed to have obtained 24 marks in the aggregate in that subject and it would not be necessary to add 2 more marks in the aggregate of that very subject. There is no reasonable basis for giving the grace marks in the external paper separately and also in the aggregate of the internal assessment and the external paper separately, in that very subject. What is prohibited by the grace marks Rules is that the grace marks notionally added to the marks actually obtained by the candidate, with the object of declaring him passed at the examination, would not be added to the total marks obtained at the examination for the purpose of determination of division and such candidate who has to take the assistance of grace marks, would only be declared as 'passed'. Thus, to my mind the only rational interpretation that can be placed on the grace marks Rules is that subject to a maximum of 5 marks and also subject to the entitlement of the candidate according to Rule 2 of the grace marks Rules, as many grace marks may be added to the marks obtained by such candidate in one or two external papers, which would have the effect of declaring the candidate as having passed in the subject for subjects. As there is only a notional increase in the grace marks, so that the candidate may be deemed to have passed in the external paper and also the subject concerned, the grace marks which may be given to the candidate would not be added to the total marks obtained by him in the examination, for the determination of a division. The result would be that the candidate shall be declared to have simply passed at the examination, if he has passed in one or at the most two subjects with the help of grace marks, which could be made available to him according to the said Rules. If this interpretation is adopted, as it should be, then all the illustrations given in the table contained in the reply of the respondents at page 46 can be fully explained, as in each case as many grace marks can be added to the marks obtained by the concerned candidate in one or two external papers, according to his entitlement, subject to the maximum of 5 marks, which would make the aggregate of the internal assessment and the external paper in that subject as 33 or may make the marks obtained in that external paper by the candidate as 19, both of which are necessary limbs for the success of the candidate in the particular subject.

8. If the aforesaid principle is also made applicable to the case of the petitioner and 4 maaks are added to the external paper in the subject of Educational Psychology and Health Education, then the petitioner would pass in the external paper as well as in the aggregate in the aforesaid subject. Since the petitioner has passed in all other subjects, he will also thereby pass at the examination. In this view of the matter, the petitioner should be deemed to have passed in the paper of Educational Psychology and Health Education with the help of grace marks and in that event, he should also be declared to have passed in the BSTC examination of the year 1970, with the help of grace marks.

9. Learned Additional Government Advocate also raised an objection that the petitioner filed the writ petition after a lapse of 4 years and as such the should not be given any relief by this Court. The result of the examination was declared on July 3, 1970, while the writ petition was filed in this Court on July 1, 1974. However, in the first place the petitioner has tried to explain the delay by submitting that he made a representation initially to the Registrar of Departmental Examination of the Education Department in the expectation that the mistake in not giving grace marks in one paper according to his entitlement, would be corrected. Thereafter, he submitted a representation to the Director of Education but that representation was also rejected on April 14, 1972. The petitioner also alleged that he was not allowed to appear in the examination in the year 1972 or 1973 as the one year's correspondence course for BSTC examination was abolished. In the circumstances, the petitioner had to seek redress from the Court.

10. Moreover, as this writ petition has remained pending in this court for almost 9 years, it would not be proper to throw it out after so many years merely on the ground of delay, more particularly as the question of interpretation of the grace marks Rules is involved in this case and the parties have been heard on merits. After the matter has been heard at length this Court would not exercise its discretion in depriving the petitioner of his remedy on the ground of delay.

11. Lastly, it was submitted by the learned Additional Government Advocate that the candidates, who are alleged to have been given beneficial treatment while the petitioner was discriminated against, have not been made parties to the writ petition. As the writ petition is being allowed on the ground that on the correct interpretation of the grace marks Rules the petitionce must be held to have passed the BSTC examination on the year 1970, the non-joinder of persons whose examples were mentioned by the petitioner as illustrative of the application of the grace marks Rules cannot affect the maintainability of the writ petition. The cases referred to by the petitioner and persons whose marks have been referred to by the respondents in their reply in a table at page 46 are merely illustrative of the manner in which the grace marks Rules have been applied and no relief has been claimed in the writ petition against those persons. A reference has been made to them only to show the actual application of the grace marks Rules to the cases of various candidates, so that the validity of the interpretation placed by the department on the grace marks Rules may be tested, with the case referred to by the parties serving as illustrations of the application of such Rules. In these circumstances the writ petition does not suffer from any defect of non-joinder of parties.

12. In the result, the writ petition is allowed, the decision of the respondents declaring the petitioner to have failed at the BSTC examination of the year 1970 is set aside and the respondents are directed to declare that the petitioner has passed the BSTC examination, 1970, (Correspondence course) with the help of grace marks admissible to him under the relevant Rules. The respondents should revise and modify the petitioner's marks sheet dated July 3, 1970 accordingly and issue a revised marks-sheet to him declaring him to have passed the examination. The parties are left to bear their own costs of this writ petition.


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