Adarsh Mohnot v. University of Jodhpur — 1984 DIGILAW 77 (RAJ)

S.K. MAL LODHA,—J. Petitioner Adarsh Mohnot has filed this writ petition under Art. 226 of the Constitution for a direction against the University of Jodhpur, Jodhpur (for short, the University) to declare that he has passed in LL.B. Final Examination, which was held in 1983. 2. The petitioner appeared at the First Examination in Law in 1981. He was declared eligible for Supplementary Examination in Paper II : Law of Torts (General Principles and Specific Wrongs) vide Anx. 1. He appeared at the Supplementary Examination. A revised marks sheet (Anx 2) was issued and he was shown to have passed by grace. It is clear from Anx.2 that he obtained 283 marks out of 600 marks, though minimum pass marks were 288. The petitioner appeared in the Second Examination in Law. He was declared to have passed by grace vide Anx.3. He obtained in aggregate 284 marks out of 600, though minimum pass marks were 288. The petitioner appeared at the LL.B. Final Examination, 1983 and was declared failed. A perusal of the marks sheet Anx.4 relating to LL.B.Final Examination, 1983 shows that the petitioner has passed in all the subjects and secured more than 36% marks in each of the papers. He, however, secured 859 marks in aggregate at the three Examinations whereas minimum pass marks are 864. An in aggregate five marks were short, he was shown "failed". 3. It has been stated by the petitioner that as he has declared to have passed by grace in the First and Second Examinations in Law, he shall be deemed to have obtained the minimum pass marks 288 in aggregate in both First and Second Examinations in Law. For declaring him failed, in LL.B. Final Examination, 1983. the marks actually obtained by him have only been taken into account and this according to the petitioner, is manifestly incorrect. For declaring him failed, in LL.B. Final Examination, 1983. the marks actually obtained by him have only been taken into account and this according to the petitioner, is manifestly incorrect. The other grounds taken in the petition are : (1) that the petitioner cannot be declared to have failed in the LL.B. Final Examination because according to para 10(i) of the syllabus of Bachelor of Laws, in the event of the petitioner not obtained minimum aggregate marks, he should have been declared eligible to appear in the paper in which he has obtained the lowest marks, and since this was not done and he was declared to have passed by grace, the University cannot declare the petitioner as "failed when it did not award supplementary to the petitioner in First and Second Examinations in Law, and (2) that by issuing marks-sheets (Anx.2 and 3) in respect of the First and Second Examinations in Law, the petitioner was made to believe that he has secured the minimum aggregate marks, i.e. 288 marks in each of the aforesaid two Examinations and that position cannot be retrieved. In other words, the University having thus declared the petitioner to have passed by grace, it cannot now be permitted to act to the prejudice of the petitioner inasmuch as the principle of equitable estoppel is attracted. On the aforesaid grounds, it was prayed by the petitioner that the University may be directed to declare that the petitioner has passed in LL.B. Final Examination 1983. 4. A show cause notice was issued. The University has filed reply to it. The writ petition was contested principally on the ground that according to r.2(b) of the Rules, for the Awards of Grace Marks, it is the actual marks obtained by a candidate, which determine the aggregate marks and the actual marks obtained by the candidate are only taken into consideration for the purpose of arriving at the aggregate marks of the First, Second and Final Examinations in Law and as the petitioner had obtained 859 marks, which fell short by 5 marks in the aggregate in order to obtain 48% which is essential for a pass i.e. to obtain Second Division, the petitioner was declared failed. On the basis of Ordinance 359 of the Jodhpur University, it was averred by the University that according to it a candidate is required to obtain 48% marks in aggregate in order to pass i.e. to obtain Second Division and that as the petitioner has not obtained 48% marks in aggregate in the First and Second Examinations in Law, he could not be declared to have passed. 5. On January 4, 1984, as prayed by the learned counsel for the parties, it was ordered that the writ petition shall finally be disposed of at the admission stage. 6. On January 16, 1984, Mr. H.M. Parekh, learned counsel for the University submitted that he wants to seek instructions from the University whether it wants to submit separate reply in addition to the one, which has already been filed. On January 23,1984, learned counsel for the University stated that the University does not want to file any additional reply in addition to the one which has already been filed. 7. I have heard Mr. M. Mridul, learned counsel for the petitioner and Mr. H.M. Parekh. learned counsel for the University. 8. It was contended by Mr. M. Mridul that as the petitioner was declared to have passed by grace in the First and Second Examinations in Law, he should be considered to have obtained the minimum 288 marks in aggregate in each of the aforesaid examinations, and as the petitioner has already obtained in aggregate 292 marks out of 600 marks which are a little more than 48% marks in aggregate, he could not have been declared having failed in the final Examination in law, 1983. It was also contended that when the University has declared the petitioner in the First and Second Examination in Law to have passed by grace, now, that cannot operate to the prejudice of the petitioner. 9. Mr. H.M. Parekh, learned counsel for the University, contended that according to r. 2(b) of the Rules and Ordinance 359 of the Jodhpur University, the petitioner cannot be said to have passed in the aggregate and the giving of grace marks in the statement of marks Anx. 2 and Anx 3 cannot be considered that actual grace marks which were short for the minimum aggregate marks, have actually been awarded. 10. 1 have considered the rival contentions of the learned counsel appearing for both the parties. 2 and Anx 3 cannot be considered that actual grace marks which were short for the minimum aggregate marks, have actually been awarded. 10. 1 have considered the rival contentions of the learned counsel appearing for both the parties. R.2(b) of the aforesaid Rules is as follows :— "(b) Candidate who passes in a subject by the award of grace marks will be deemed to have obtained the necessary minimum for a pass in that subject. The place of a pass candidate in the examination list will, however, be determined by the aggregate marks secured by the candidate from the examiners and the candidate will nor, by the award of grace marks become entitled for a higher place." According to rule 2(b) : (i) if a candidate passes in a subject by award of grace marks, he is deemed to have obtained necessary minimum for a pass in that subject; (ii) the candidate, who passes by award of grace marks is placed, however, in the examination list as determined by the aggregate marks secured by him from the examiners by award of grace marks for the purpose of pass, he is not entitled for a higher place. It is, thus, clear from r.2(b) that when the grace marks are awarded, it is deemed that he has obtained the necessary minimum marks for a pass, but, for the purpose of determining his place, the marks actually obtained by him by the examiners are considered and by virtue of award of grace marks, he does not become entitled to the higher place in merit. 11. Ordinance 359, relates to the Scheme of Examination. It is as under : — "0.359(i) SCHEME OF EXAMINATION : For each of the First Examination, Second Examination and Final Examination for a pass a candidate shall be required to obtain : (a) At least 36% marks in each of the subjects (written examination and tutorial work combined), and (b) At least 40% marks in aggregate of all the subjects (written examination and tutorial work combined i.e. 288 marks). (ii) The marks of the Three Examinations i.e. First, Second and Final Examinations in Law shall count together for a place on the pass list for the LL.B. Degree. (iii) A candidate shall be eligible for the degree of Bachelor of Laws after he passes all the aforesaid three examinations. (ii) The marks of the Three Examinations i.e. First, Second and Final Examinations in Law shall count together for a place on the pass list for the LL.B. Degree. (iii) A candidate shall be eligible for the degree of Bachelor of Laws after he passes all the aforesaid three examinations. A candidate who secures, not less than 60% marks in the aggregate shall be placed in the First Division while one who obtains less than 60% of the aggregate but not less than 40% shall be placed in the Second Division" According to sub-clause (b) of cl.(i) of Ordinance 359 a candidate for pass is required to obtain in the First Examination and Second Examination and LL.B. Final Examination, 48% marks in aggregate in all the subjects (wiitten examination and tutorial work combined i.e. 288 marks). According to clause (ii) of Ordinance 359, a candidate obtaining marks in First and Second Examinations and LL.B. Final Examination are counted together for a place on the pass list for the LL.B. Degree. Mr. Parekh, learned counsel for the University has laid considerable emphasis on clause (iii) of Ordinance 359. According to him, under cl. (iii) of Ordinance 359, a candidate only becomes eligible for the Degree of Bachelore of Laws after he has passed in all the three Examinations in Law, and for obtaining Second Division, he has to obtain in aggregate not less than 48% marks. Here, it will be useful to refer to Ordinance 360, which deals with Supplementary Examination in Law. The material portion of Ordinance 360 is as under : — "......in the case of candidate failing in the aggregate only, 48% marks in the aggregate of the five papers excluding the paper in which they have Secuired the lowest marks, shall be permitted to appear in one paper only in which they have failed or in the case of candidate failing in the aggregate only, 48% marks in the aggregate of the five papers excluding the paper in which they have secured the lowest marks, shall be permitted to appaer in one paper only in which they have failed or in the candidate failing in the aggregate only, in the paper in which they have obtained the lowest marks". Anx.2 is the statement of marks obtained in the First Examination in Law, 1981. The petitioner has obtained 283 marks in aggregate. Anx.2 is the statement of marks obtained in the First Examination in Law, 1981. The petitioner has obtained 283 marks in aggregate. The lowest marks obtained by him is the paper II, the Law of Torts (General Principles and Specific Wrongs) in which he has secured 37 marks. Except this paper, the petitioner has obtained in aggregate more than 48% marks as aggregate required in five papers in 240 marks whereas he has obtained 248. In Anx.3, the petitioner has the lowest marks in paper IV, Family Law (Mohammedan Law) i.e. 40 marks. In the remaining five papers, he has obtained 244 marks. So, in both the Examinations, had he not been declared passed by grace, he would have become eligible to appear at the Supplementary Examination of the First and Second Examinations in Law. In Anxs. 2 and 3, the petitioner has been shown to have passed by grace. This shows that for the purpose of sub-clause (b) of cl. (i) of Ordinance 359, the petitioner was taken to have obtained 288 marks. 12. Three words, award, deemed, and obtained are worthy of notice in r.2(b). 13. The dictionary meaning of the words award is "to adjudge; to determine; to grant" and "Deem means "to judge, to think; to believe". The word obtain means "to get" to procure by effort; to gain; to reach; to hold good". Thus, according to cl. (b) of the Rules a candidate, who is given grace marks, is deemed to have secured the necessary pass marks in the subject, but for the purpose of determining his place, the giving of grace marks are not considered for that purpose. Here, r.2 (a) may also be taken note of. It says that the grace marks will be awarded only if by the award of the same, a candidate gets through the examinations. This shows that for the purpose of declaring a candidate successful at the examination, grace marks are granted. When the petitioner was informed by Anx.2 and Anx.3 that he has passed by grace, this shows that grace marks were granted to him for the purpose of having passed the examination in which he has appeared. In other words grace marks in aggregate were awarded to the petitioner as that has abled him to pass the examination. Cl. When the petitioner was informed by Anx.2 and Anx.3 that he has passed by grace, this shows that grace marks were granted to him for the purpose of having passed the examination in which he has appeared. In other words grace marks in aggregate were awarded to the petitioner as that has abled him to pass the examination. Cl. (iii) of Ordinance 355 says that a candidate, who after passing the First Examination in Law has completed a regular course of study in the University for one academic year, shallbe admitted to the Second Examination in Law. The petitioner was admitted to the Second Examination in Law and, therefore, he has passed the First Examination in Law as envisaged by cl. (iii) of Ordinance 355. Similarly, according to cl.(iv) of Ordinance 355, a candidate, who after passing the Second Examination in Law has completed a regular course of study in the University for one academic year shall be admitted to the Final Examination in Law. The petitioner was admitted to the L L.B Final Examination 1983. This shows that he has passed the Second Examination in Law and completed the regular course of study. Thus, according to the petitioner, when he was told that he has passed by grace, the First and Second Examinations in Law by means of Anxs. 2 and 3, he, for all purposes, will be considered to have obtained the minimum aggregate marks i.e. 288 in each of the aforesaid Examinations. The petitioner has obtained 292 marks in aggregate in LL.B. Final Examination, whereas minimum required marks are 288. The total of the aggregate marks of the First and Second Examinations and LL B. Final Examination is 859 marks. Thus, there was a shortage of 5 marks in aggregate. As stated above, the petitioner was declared passed by grace in the First and Second Examinations in Law, he is deemed to have obtained the minimum aggregate 288 marks in each of the examinations. Thus, the shortage of 9 marks in the minimum aggregate required for the First and Second Examinations in Law did not exist. There was only a shortage of 5 marks in the aggregate for declaring him successful in LL B, Final Examination. Thus, the shortage of 9 marks in the minimum aggregate required for the First and Second Examinations in Law did not exist. There was only a shortage of 5 marks in the aggregate for declaring him successful in LL B, Final Examination. If 9 marks which were awarded to him by grace for declaring him pass in accordance with r.2(b), the petitioners marks comes to be 868 whereas the minimum aggregate marks required are 864. The first contention of the petitioner is, therefore, accepted. 14. So far as the other grounds are concerned, suffice it to mention that when the petitioner was declared to have passed by grace in the First and Second Examinations in Law, which were held in 1981 and 1982 and the University did not grant him supplementary examination as envisaged by Ordinance 360, one fails to understand why his obtaining of five marks in aggregate less for the purpose of awarding the degree, should operate to his detrimental or prejudice. Rr. 2(a). 2(b) and Ordinance 359 do not operate against the petitioner. Learned counsel for the petitioner is, therefore, right and justified in contending that when the University has declared the petitioner to have passed by grace in the First and Second Examinations in Law, and it did not award supplementary examination in regard to those examinations, the petitioner should not be prejudiced. 15. No other point survives for my consideration in this writ petition. 16. The result is that the writ petition is allowed and the University of Jodhpur is directed to declare the petitioner to have passed LL.B. (Final) Examination, 1983. 17. In the circumstances, the parties are left to bear their own costs.