D. H. SHUKLA, J. ( 1 ) THE petitioner Kadiwala Bharatkumar Jamiyatram of Sagrampura Surat has filed this Special Civil Application to obtain a direction to the Gujarat Secondary Education Board for the production of his answer-book of the Gujarati Paper of XIIth Standard Examination held in May 1986 for the purpose of verification of the marks and for a further declaration of his passing in the said examination if that be the result of verification. ( 2 ) THE petitioner Candidate No. G. 171838 appeared at the XIIth Standard Examination in a general stream. His results were declared on 22 and he was declared failed. His marks-sheet showed that he failed in Gujarati subject having secured only 18 marks out of 100 marks. A copy of his marks-sheet is produced at Annexure A to the petition. ( 3 ) ON the next day after knowing his result he applied for rechecking of his mark in Gujarati subject. A copy of the receipt of the fees for rechecking is at Annexure D to the petition. The petitioner avers that the respondent did not reply within 21 days and he therefore sent a reminder-letter dated 29-11-1986 requesting the respondent to intimate to him early the result of verification. Since he did not receive a reply to this reminder also on 11-12-1986 accompanied by one Manish Saorathia he called upon the Assistant Secretary of the respondent-Board Shri Chauhan to inquire about his application. Shri Chauhan called two concerned persons from his office and told the petitioner to return to him about an hour later When he did so Shri Chauhan told the petitioner that he will receive the reply within a week. The petitioner however did not hear from Shri Chauhan for a period of about 20 days and therefore on 6-1-1987 the petitioner accompanied one Shri Bhupendra Gajjar again called on Shri Chauhan. Shri Chauhan again called two persons and also called; for the answer-paper of the petitioner. The petitioner avers that in has presence the verification with the answer-paper was made and it was found that he has secured 48 marks and not 18 marks. Shri Chauhan assured the petitioner that the mistake would be corrected and the petitioner would be informed in writing within two or three days. The petitioner avers that in has presence the verification with the answer-paper was made and it was found that he has secured 48 marks and not 18 marks. Shri Chauhan assured the petitioner that the mistake would be corrected and the petitioner would be informed in writing within two or three days. To the utter surprise of the petitioner however he received a letter dated 6-1-1987 from the Examination Secretary of the Board informing him that no change was required in the marks obtained by the petitioner and that marks assigned to him were proper. A copy of the said letter dated 6-1-1987 is at Annexure C to the petition. Having been aggrieved by the aforesaid letter received from the Examination Secretary of the respondent-Board the petitioner has filed the present petition. ( 4 ) THE petition is resisted by the respondent-Board. It has filed an affidavit-in-reply of one Shri Hasmukhrai N. Hingu Secretary of the Board dated 23-2-1987. It is averred in the affidavit-in-reply that the petitioners averments about the part played by Mr. Chauhan are not true. The true facts are that the answer books of the April 1986- Examination bad been sent for being reduced to pulp prior to 6-1-1987 and as a corollary therefore all that is said about what transpired on 6 between the petitioner and Shri Chauhan allegedly in the presence of Shri Bhupendra Gajjar is necessarily untrue. It is therefore not true to suggest that the petitioner had secured 48 marks and not 18 marks as alleged by the petitioner. It is further averred that after the answer books are examined by the examiners the moderators prepared moderators sheets wherein marks of each candidate are mentioned. In this case also the moderator prepared the moderators sheet from the original answer book wherein also marks secured by the petitioner in Gujarati (L. L ) is shown as 18. A copy of the moderators sheet is produced at Annexure A to the affidavit-in-reply. It is further contended in the affidavit-in-reply that after having received the application of the petitioner for the verification of the marks all possible efforts were made to procure original answer-book of the petitioner but the respondent Board was unable to put its hands on the answer-book of the petitioner. The respondent therefore could verity the marks obtained by the petitioner only on the basis of the moderators sheet. The respondent therefore could verity the marks obtained by the petitioner only on the basis of the moderators sheet. To substantiate his say the Secretary has further deposed in his affidavit-in-reply that by a letter dated 24-12-1986 the respondent had informed waste-paper merchants to collect used answer books from its Gandhinagar Office and Baroda Office and to collect the same at the earliest. Accordingly used answer books were collected by the said merchants and four different trucks were loaded on 29-12-1986 and 30 A copy of the bill of Shree Naroda Motor Weigh Bridge Company Naroda is at Annexure C to the affidavit-in-reply. The used answer books were required to be sent for being reduced to pulp because new answer books for the October-Examination had started reaching the Boards office. As per the relevant resolution the used answer-books are required to be sent for being reduced to pulp after two days of declaration of the result. Thus it would be seen that what the petitioner has averred in relation to Mr. Chauhan having verified the marks of the petitioner from the answer books on 6-1-1987 is totally false. The deponent has further stated that it is not true that Mr. Chauhan had assured the petitioner that the mistake would be corrected and he would be informed in writing within two or three days. ( 5 ) IN support of his statements made in the affidavit-in-reply several documents are produced to prove that the answer-papers were despatched for being reduced to pulp nearly a week prior to 6-1-1987. ( 6 ) A further affidavit is filed by Mr. Dharamraj Kishanrav Chavan Assistant Secretary of the Gujarat Secondary Education Board for a limited purpose in respect of an alleged conversation narrated by the petitioner as having taken place with him. He submits that he cannot say at this point of time that the petitioner did come to inquire on 11 and 6-1-1987 about his application for verification of marks. However he states that on 6-1-1987 he did not call two persons for b ringing answer books of the petitioner. It is also not true that in the presence of the petitioner it was found that the petitioner had secured 48 marks and not 18 marks. However he states that on 6-1-1987 he did not call two persons for b ringing answer books of the petitioner. It is also not true that in the presence of the petitioner it was found that the petitioner had secured 48 marks and not 18 marks. Therefore the question of giving assurance to the petitioner that the mistake would be corrected and he would be informed in writing within two or three days does not arise. He has also stated that the used answer-books of April 1986 Examination were sent for being reduced to pulp much prior to 6-1-1987 and therefore the question of calling of the answer-books of the petitioner on 6-1-1987 does not arise. ( 7 ) THE petitioner has filed an affidavit-in-rejoinder alleging that tire-facts are tried to be suppressed before this Honble Court that the petitioner has secured 48 marks in Gujarati paper and not 18 marks. He has questioned the moderators sheet produced by the respondent - alleging that it is a concocted document. It does not bear the date and name of the petitioner is shown at the bottom of the moderators sheet and number is also not there in the serial. There are several other grounds also on which the genuineness of the moderators sheet is questioned but it is not necessary to reproduce all these details in our judgment. It is further contended that the petitioner had applied in time for rechecking of the marks and therefore the respondent could not have disposed of the answer-books The respondent Board has not given sufficient reason according to the petitioner why the answerbook was not checked before being sent for being reduced to pulp. He has reiterated his meeting with Mr. Chauhan and in support of his contention he has filed the affidavit of Mr. Bhupendra Gujjar who had accompanied him. ( 8 ) THIS Special Civil Application came up for hearing before Brother D. C. Gheewala J. He has observed: The Petitioner of course has come out with a case which is not acceptable that he was shown the answer book and instead of 18 he was getting 48 marks. That appears to be a blatant lie. We are also of the view that the petitioners say in this regard is not believable in view of the evidence especially documentary evidence produced on the record of this petition. That appears to be a blatant lie. We are also of the view that the petitioners say in this regard is not believable in view of the evidence especially documentary evidence produced on the record of this petition. ( 9 ) GHEEWALA J. has also considered the reliance which is placed by the petitioner on the respondents letter dated 6-1-1987 that the marks were tallied with the answer books and therefore answer books must have been there on 6-1-1987. He has however not accepted the petitioners inference drawn from the letter of 6-1-1987 at Annexure C to the petition observing that the letter was on a printed form and it is quite possible that what is contained in the print was not cancelled through oversight. In view of the other documentary evidence on record no reliance could be placed on the contents of the printed form to reach the conclusion that the contention of the Board about the answerbooks having been sent for being reduced to pulp is untenable. We agree with Gheewala J. ( 10 ) MR. B. J. Shethna had invited the attention of Gheewala J. to the judgment of Brother R. C. Mankad J. in Special Civil Application No. 5535 of 1984 decided on 12-3-1985 wherein he held that if the answer-book was lost the examining body should add the requisite marks and declare the candidate as having passed. However so far as this judicial opinion as pronounced in the judgment and order rendered in Special Civil Application No. 5535 of 1984 is concerned there is a difference in judicial opinion because in a similar matter which subsequently came up before Brother M. B. Shah J. in Special Civil Application No. 1720 of 1986 decided on 25-7-1986 a different view was taken. It appears that R. C. Mankad J. himself took a different view in another Special Civil Application No. 7108 of 1985 decided on 9 In view of the conflicting judgments of this Court on the same point Gheewala J. found that it was proper that the matter was decided by a Division Bench. Hence this reference. ( 11 ) R. C. Mankad J. considered Regulation 34 of the Higher Secondary Certificate Examination Regulations 1977 hereinafter referred to as the Regulations and observed as under in the judgment rendered in Special Civil Application No. 5535 of 1984:. . . Hence this reference. ( 11 ) R. C. Mankad J. considered Regulation 34 of the Higher Secondary Certificate Examination Regulations 1977 hereinafter referred to as the Regulations and observed as under in the judgment rendered in Special Civil Application No. 5535 of 1984:. . . The mark sheet prepared by the examiner reflects only total marks obtained by candidates who had appeared at the examination. It is not stated as to bow the marks sheet is prepared by the moderator. In other words it is not made clear whether the moderator prepares mark-sheet on the basis of the marksheet prepared by the examiner or whether be examines each and every paper before inserting marks in his marksheet. But apart from that separate marks for each answer are not entered in the marksheet prepared by the examiner or moderator. Thus it would not be possible to find out from the marksheets of the examiner and the moderator whether each and every answer written by a candidate has been evaluated or not. It will therefore appear that once that answer book Is lost or not traceable it would be difficult to find out whether any answer written by a candidate has remained unevaluated. Therefore in a case where answer book is lost the procedure laid down in regulation 34 of verification of marks would be unworkable and the right conferred on the candidate for verification of marks obtained by him would became meaningless. . . . . . . . R. C. Mankad J. under the facts and circumstances of the case relied oh Regulation 30 of the Regulations which deals with condonation of deficiency in special cases. Regulation 30 runs thus: 30 Condonation of deficiency in special cases:it shall be competent to the Board to review special cases not covered by Regulation 29 above. Having held that Regulation 29 of the Regulations does not cover the case of the petitioner Mankad J. observed in the abovesaid judgment as under: however regulation 30 confers wide power on the Board to condone deficiency in cases not covered by regulation 29. Having examined the petitioners earlier performance R. C. Mankad J. Observed in the said judgment as under:i am therefore of the opinion that the Board should have exercised its power under Regulation 30 and condoned deficiency in the marks. . . Having examined the petitioners earlier performance R. C. Mankad J. Observed in the said judgment as under:i am therefore of the opinion that the Board should have exercised its power under Regulation 30 and condoned deficiency in the marks. . . He accordingly gave a direction to the Board to condone deficiency of marls for passing in the subject of English under Regulation 30 of the Regulations and to declare the petitioner in that case as passed in the subject of English. ( 12 ) A similar matter namely Special Civil Application No. 7108 of 1985 came up before R. C. Mankad J. which he rejected by his order dated 9-1-1986 He observed therein as under:it however appears that in spite of its best efforts the answer books in this subject have not been traced. Under these circumstances it is not possible to come to the conclusion that any mistake in calculation of the marks is committed by the respondent-Board. Ordinarily it should be presumed that marks are properly calculated or added up. However it further appears that in the moderators sheet the marks entered are the same as those shown in the marks sheet 80 far as the subject of Biology is concerned. There is no reason to doubt the correctness of the entries made in the moderators sheet. It would therefore appear that the marks in the subject of Biology stated in the marksheet are correct. In any case petitioner has failed to show that there is mistake in adding up of marks in the subject of Biology. He rejected the said petition ( 13 ) A third petition of the same nature came up before M. B. Shah J. It was Special Civil Application No. 1720 of 1986 decided on 25 M. B. Shah J. followed the view taken by R. C. Mankad J. in the latter Special Civil Application namely Special Civil Application No. 7108 of 1985 decided on 9-1-1986 and rejected the petition. Attention of M. B. Shah J. was invited to the earlier decision in Special Civil Application No. 5535 of 1984 by R. C. Mankad J. 7he however did not follow the decision in the earlier petition on the ground that it was decided in view of the facts of that particular case. ( 14 ) WE are called upon to resolve the cleavage that 2rises from the aforesaid three Special Civil Applications. ( 14 ) WE are called upon to resolve the cleavage that 2rises from the aforesaid three Special Civil Applications. Regulation 29 of the Regulations runs as under: 29 Condonation of deficiency of marks for passing in a subject; (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 the all 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 percent by which the total marks secured by him in all the subjects exceed 35 percent of the maximum number of marks obtaining in those subjects. For this half a percent or more shall be rounded to the next whole percent. (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 (33 of Regulation 20 any deficiency upto four marks in any two subjects shall be condoned. It is evident from the perusal of Regulation 29 that it deals with condonation of deficiency of marks in different sets of circumstances. In order to take care of an unforeseen circumstance Regulation 30 provides that it shall be competent to the Board to review special cases not covered by Regulation 29. A conjoint reading of Regulations 29 and 30 thus covers the power of condonation of deficiency of marks for passing in a subject. Now the case of the present petitioner is not that condonation of deficiency of marks is called for in his case. His case is that he has passed the examination and that the declaration of his failure is unjustifiable on the facts of the case. He avers that he had secured 48 marks and not 18 marks as disclosed by his marks-sheet and therefore he must be declared as having passed in that examination. His case is that he has passed the examination and that the declaration of his failure is unjustifiable on the facts of the case. He avers that he had secured 48 marks and not 18 marks as disclosed by his marks-sheet and therefore he must be declared as having passed in that examination. In other words he does not pray for condonation of deficiency of marks either under Regulation 29 or Regulation 30 but his case is that there is no deficiency at all. We are of the view therefore that the application of Regulation 29 or Regulation 30 of the Regulations to the case of the petitioner does not arise at all and with respect the view taken by R. C. Mankad J. in Special Civil Application No. 5535 of 1984 that Regulation 30 should be applied in a case such as this is not correct. ( 15 ) THERE is another aspect of consideration in regard to the invocation of Regulation 30 of the Regulations. Before seeking the invocation of Regulation 30 the petitioner should first have approached the Board to review his case since the powers are vested in the Board. A necessity of judicial review can only arise after the Board has rejected his application to review his case under Regulation 30 of the Regulations. Till this condition precedent is fulfilled there does not arise any scope for alleging arbitrariness or mala fides on the part of the respondent-Board. Mr. B. J. Shethna candidly admitted that the petitioner before us has not made any such application to review his case under Regulation 30 of the Regulations. Since this situation has not arisen we are of the view that the question of invoking Regulation 30 of the Regulations in the petitioners case does not arise before us ( 16 ) LASTLY it was argued that since the petitioner had applied for verification of marks under Regulation 34 of the Regulations within the prescribed time it was the duty of the Board to verify whether the candidates answer in any particular subject was evaluated or whether there was a mistake in totalling of marks in the concerned subject and failure to do so for want of the candidates answer book entitles the candidate to be declared to have passed in the said subject. Under Regulation 34 (2) unless on verification it is discovered that there was an omission to evaluate and mark any answer or answers and/or there was a mistake in totalling of the marks the candidate cannot be declared successful. Therefore in order to succeed the candidate must show that there was either an omission to evaluate and mark any answer or that a mistake in totalling the marks had crept in. In the present case neither of the conditions is shown to exist. It is clear from the marksheet that the petitioner had secured 18 out of 100 marks in Gujarati. The moderators sheet produced with the affidavit of H. N. Hingu also shows that the petitioner had secured only 18/100 marks. These two documents prima facie show that the petitioner had failed in Gujarati (L. L.) subject. There is a presumption under sec. 114 (e) of the Evidence Act that official acts must have been properly performed and this presumption is certainly not weakned by the moderators sheet. The petitioner cannot claim to be declared successful merely because the Board destroyed the answer book without waiting for the period prescribed by Regulation 34 (1) for verification. It is undoubtedly true that the Board should not have destroyed the answer book in haste before the prescribed period ran out but that by itself is not sufficient to hold that the candidate is entitled to be declared successful. The absence of the answer book cannot efface the probative value of the mark-sheet and the moderators sheet. We are therefore of the view that the premature destruction of the answer book is by itself not sufficient to declare the petitioner successful in the Gujarati (L. L.) subject it is another matter that he may have a remedy at common law. ( 17 ) BEFORE we part we are constrained to observe that since a candidate is entitled under the Regulations to seek verification the answer books should be retained till the time for applying for verification expires and the requisitions for verification are dealt with and the result is communicated to the concerned candidates. We would like the Board to lay down safeguards in this behalf so that such incidents causing avoidable misgivings do not recur in future. Such incidents apart from involving the Board in litigation erode the credibility of the Board. We would like the Board to lay down safeguards in this behalf so that such incidents causing avoidable misgivings do not recur in future. Such incidents apart from involving the Board in litigation erode the credibility of the Board. We do hope that the Board will take sufficient precautions to see that such incidents do not recur in future to avoid litigation and possible claim for damages. ( 18 ) IN the above view of the matter we reject this Special Civil Application. Rule is discharged with no order as to costs. Petition dismissed. .