JUDGMENT 1. 1. After passing M.Sc. (Phychology) from University of Rajasthan, the petitioner appeared in M. Phil. Examination, 1991 held in April, 92 by the University of Rajasthan. She was secured 245 marks out of 400 in the aggregate but was declared to have failed in the examination as per the mark-sheet (Annexure-1) because in the external assessment, she secured only 27 marks out of 80 as against the requisite minimum marks 32 in one of the papers i.e. Methodological Foundation of Behavioural Research. There is no dispute between the parties that the petitioner was awarded 47 and 28 marks by the two examiners in the aforesaid paper. The University of Rajasthan forwarded the petitioner's answer book of the aforesaid paper for assessment to the third examiner, and in the assessment of the third examiner, she got 25 marks. University of Rajasthan in terms of-Ordinance 123. V. 14 took average of two nearest awards i.e. 28+25=53, divided by 2, it comes out to be 26.5 and taking a round figure, she was awarded 27 marks and was declared to have failed because she was required to obtain at least 32 marks for a pass. 2. Relevant provisions as contained in Ordinance 123(V) (14) and (15) are reproduced as under:- "123(V) (14) That answer-books and the dissertation of external examination shall be evalued independently by two examiners and where the difference between the two awards exceeds 20% of the maximum marks allotted to the paper, the answer-book shall be evaluated by a third examiner. In the former case, the average of the two awards and in later case the average of the two nearest awards shall be taken into account. 123(V)(15) Each paper shall consist of 100 marks out of the which 80 marks shall be for external assessment and 20 marks for internal assessment. The Dissertation shall also carry 100 marks which will be assessed wholly by the external examiners. For a pass, a candidate shall be required to obtain (a) at least 40% marks in each paper separately in internal assessment and external assessment and (b) a minimum of 50% marks for the aggregate of all the papers prescribed for the examination (internal and external assessment taken together). The marks obtained in internal assessment and external assessment shall be shown separately in the mark-sheet. The marks obtained in internal assessment and external assessment shall be shown separately in the mark-sheet. Successful candidates shall be classified as under:- (A) First Division Candidates obtaining 75% or more with Distinction marks in the aggregate. (B) First Division Candidates obtaining 65% or more but less than 75% marks in the aggregate. (C) Second Division All the rest." The petitioner's grievance is two-fold. (i) The petitioner's case is that according to the scheme of the Ordinance under consideration, each paper consists of 100 marks, out of which 80 marks are for external assessment and 20 marks for internal assessment, and for a pass, a candidate is required to obtain at least 40% marks in each paper separately in external assessment and internal assessment and a minimum of 50% marks in the aggregate of all the papers prescribed for the examination. On this premise, it was submitted with reference to ordinance 123(V) (14) that in the evaluation of two examiners when she had obtained 47 and 28 marks, the difference was of 19 marks only which was less than 20% of the maximum marks allotted to the paper because each paper consists of 100 marks as per Ordinance 123(V)(15) and figure 18' is less than 20% of the maximum marks allotted to the paper i.e. 100. As such, there was no question of sending the answer book of the petitioner for evaluation to the third examiner and had the petitioner's answer book been not sent to the their examiner and her result computed on the basis of the marks awarded by the two examiners only, i.e. 47 and 28, she would have got 47+28=75 divided by two, it comes out to be 371/2, round figure of which is 38 and the figure 38' is more than the minimum requisite marks of 32' (40% of 80 marks). It has been submitted that the petitioner has been declared to have failed on the basis of taking the evaluation of the third examiner as 25 marks and since the two nearest awards out of 47, 28 and 25 were 28 and 25, the average of these two nearest awards i.e. 28+25=53 was taken and she was shown to have obtained 27 marks and declared to have failed. (ii) The petitioner has challenged the later part of Ordinance 123 (V) (14) i.e. "... (ii) The petitioner has challenged the later part of Ordinance 123 (V) (14) i.e. "... in later case, the average of the two nearest awards shall be taken into account". The case of the petitioner is that even if her answer book had been got evaluated by the third examiner, two such nearest awards should have been taken into consideration, which were advantageous to the petitioner and the nearest awards means the two nearest awards favourable to the petitioner and if the interpretation is taken as has been taken by the University, this part of Ordinance 123 (V)(14) would be unreasonable, will be harsh and oppressive against the students and as such being unreasonable it would be rendered invalid and would be liable to be declared ultra vires of Article 14 of the Constitution of India. 3. Shri Alok Sharma, has submitted that while operating Ordinance 123(V) (14), the words "the maximum marks allotted to the paper" should be taken to mean only 80 marks fixed for external assessment because it is the answer book of the external assessment only which is sent, for evaluation by the third examiner and in case of the petitioner, the difference being of 19 marks, it was more than 20% with reference to the 80 marks fixed for external assessment. According to Shri Alok Sharma, the University of Rajasthan rightly sent the petitioner's answer book for evaluation to the third examiner and the consequences have followed. With regard to the challenge to the later part of Ordinance 123(V)(14), it was submitted by Shri Alok Sharma that the nearest awards means the two closest awards. Out of the three awards i.e. 47, 28 and 25, two awards i.e. 25 and 28 being the closest awards had to be considered whether they were advantageous to the candidate or not and this part of the Ordinance cannot be said to be unreasonable and cannot be struck down, as violative of Article 14 of the Constitution of India.We have heard learned counsel for the parties and have also gone through the whole scheme of Ordinance 123(V), particularly (14) and (15). On a plain reading of Ordinance 123(V)(15) it is clear that each paper consists of 100 marks and therefore, the maximum marks allotted to the paper is 100, and further, these 100 marks have been divided as 80 marks for external assessment and 20 marks for internal assessment and the paper includes external assessment as well as internal assessment. Thus, there is no room for any doubt that the maximum marks allotted to the paper is 100. Shri Alok Sharma, learned counsel for the respondent, may be right in making the submission that it is only the answer book of the external assessment which is sent for evaluation to the examiners and for a pass every candidate is required to obtain 40% marks in each paper separately in external assessment and internal assessment i.e. he or she should get 32 marks out of 80 marks in external assessment and 8 marks out of 20 in internal assessment and in the aggregate of all the four papers, he or she must obtain 200 marks out of 400; but we are called upon to decide as to while taking into consideration the difference of the two awards, whether 20% has to be of the 80 marks fixed for external assessment or of the maximum marks allotted to the paper. By no stretch of imagination, it can be said that 80 marks are the maximum marks allotted to the paper. Had the intention of the framers of the Ordinance been to count the difference of 20% with reference to the marks fixed for external assessment, nothing prevented them to say so in the Ordinance 123 (V) (14). In the same Ordinance when it is mentioned that each paper shall consist of 100 marks and 80 marks shall be for external assessment, it cannot be read in the language of the same Ordinance, that the 'maximum marks allotted to the paper' would mean the 'maximum marks allotted for external assessment'. In the same Ordinance when it is mentioned that each paper shall consist of 100 marks and 80 marks shall be for external assessment, it cannot be read in the language of the same Ordinance, that the 'maximum marks allotted to the paper' would mean the 'maximum marks allotted for external assessment'. Knowing it fully well that it is only the answer book of the external assessment which is to be sent for evaluation, the framers of the Ordinance have provided that the difference between the two awards if exceeds 20% of the maximum marks allotted to the paper, then only, the answer book is to be sent for evaluation to the third examiner, clearly shows that even after fixing 80 marks for external assessment, the farmers of the Ordinance wanted that for the purpose of sending the answer book to the third examiner for evaluation, the difference should exceed 20% of the maximum marks allotted to the paper and it was also very well known that the maximum marks allotted to the paper were 100, and out of these 100 marks, 80 marks were fixed for external assessment. In this view of the matter, in our considered opinion, Ordinance 123 (V)(14) and (15) read together are capable of only one interpretation that for the purpose of sending the answer-book for evaluation to the third examiner, the difference between the two earlier awards should exceed 20% of the maximum marks allotted to the paper i.e. 100. 4. This being the only possible and correct interpretation of Ordinance 123(V) (14) read with Ordinance 123 (V)(15) and there being no dispute between the parties that the difference of the two awards in case of the petitioner, between 47 and 28 was only 19 which was less than 20% of the 100 marks allotted to the paper, the petitioner's result was to be computed by taking the average of these two awards and it was on the basis of a wrong interpretation of Ordinance 123(V)(14) by the University of Rajasthan that the petitioner's answer book was sent to the third examiner treating the difference of 19 marks of these two awards to be exceeding 20%. Computing these 20% with reference to the 80 marks fixed for external assessment, the sending of the answer book to the third examiner was unwarranted and an invalid exercise and the same has resulted in failure of the petitioner. In our considered opinion, on the basis of the correct interpretation of Ordinance 123(V) (14), the petitioner's result has to be computed by taking the average of 2 earlier awards i.e. 47 and 28 and the award of 25 marks by the third examiner being unwarranted and invalid, has to be ignored. Thus, the average of the two awards i.e. 47 and 28 comes out to be 75 divided by 2=371/2, the round figure of which is 38 and the same is certainly more than 40% out of 80 and thus, we find that the petitioner has obtained 40% marks in each paper separately in internal assessment and external assessment and she has also obtained more than 50% marks in the aggregate of all the papers and thus, she was entitled for a pass. In view of our findings as aforesaid, this writ petition succeeds on this ground alone and we need not go into the question of the validity of the later part of Ordinance 123(V) (14) which has been challenged in the writ petition and accordingly, we need not decide this question; but we do feel inclined to observe that if the interpretation of the 'two nearest awards' is taken as has been taken by the University; in certain cases it may lead to anomalous and irrational situation. To illustrate we may say that in this case itself had the petitioner been awarded only 'O' (zero) marks by the third examiner or even upto 8' marks, the University would have read 47 and 28, i.e., the earlier two awards as the nearest awards and University itself would have declared her to have passed and merely because she has obtained more marks i.e. 25 instead of 'Zero, or any number upto 8', she has been declared to have failed. We are sure that such an absurdity could have never been intended to be precipitated viz., failure if obtains more marks in the third evaluation and pass if obtains less marks in third evaluation. We are sure that such an absurdity could have never been intended to be precipitated viz., failure if obtains more marks in the third evaluation and pass if obtains less marks in third evaluation. We therefore leave it for the concerned authorities of the University and it will be well advised to consider such exigencies and to either decide to take such uniform and objective interpretation of the term 'two nearest awards' so as to see anamolous and absurd situations or to appropriately amend the Ordinance in order to arrive at rational results with regard to it own students and to avoid undue litigation in future. 5. The upshot of the aforesaid discussion is that the writ petition is allowed and the respondent University of Rajasthan is directed to revise the petitioner's result and the mark-sheet (Annexure-1) on the basis that the petitioner has obtained 38 marks out of 80 in the external assessment of Paper-I Methodological Foundation of Behavioral Research. All legal consequences will follow. The directions as aforesaid shall be carried out immediately, but in no case later than a period of thirty days from today. No order as to costs.Petition allowed. *******