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2003 DIGILAW 987 (KAR)

AJIT KUMAR BHOOPAL KAMBLE v. KARNATAKA UNIVERSITY

2003-11-24

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( 1 ) THE petitioner, assailing the correctness of the impugned communication/ order dated 20th April 2001 in No. KV/exam/grace/42 on the file of the first respondent vide Annexure H, has presented this writ petition. The petitioner has further sought to declare that the petitioner has completed B. Music part II Examination conducted in the month of April/may 2000 and issue the fresh marks sheet after necessary corrections. ( 2 ) THE grievance of the petitioner in this petition is that he is a B. A. Graduate from the first respondent - Karnataka University and after completion of graduation, he has taken admission for B. Music (Bachelor of Music) in the third respondent - College. Because the petitioner had already completed his graduation, the petitioner sought for exemption from studying the basic papers namely Kannada and English. Accordingly, the petitioner was granted exemption by the first respondent as provided under the relevant regulations, by his letter dated 4th January 1999 vide Annexure C. Thereafter, the petitioner has appeared for the Bachelor of Music Part I Examination conducted in the month of April/may 1999 and accordingly, he has been declared as passed; and marks card bearing No. 0035 has also been issued showing therein that, he has been exempted in the basic subjects, namely, Kannada and English subjects and showing Sitar as major subject and vocal as minor subject. After being declared passes for the Part IIB. Music Examination, the petitioner has appeared for the Part If B. Music Examination, after obtaining necessary permission from the competent authority vide Annexure E dated 15th March 2000 wherein the basic subjects namely Kannada and English are exempted for the Part II and Part III B. Music Examinations. Accordingly, the petitioner appeared for the Part IIB. Music Examination conducted in the month of April/may 2000. It is the case of the petitioner that, in the marks card issued vide Annexure F, for Part II B. Music Examination, conducted in the month of April/may 2000, the petitioner has been shown as exempted in respect of basic subject namely English and so far as another basic subject namely Kannada is concerned, he has been shown as Absent. It is the case of the petitioner that, in the marks card issued vide Annexure F, for Part II B. Music Examination, conducted in the month of April/may 2000, the petitioner has been shown as exempted in respect of basic subject namely English and so far as another basic subject namely Kannada is concerned, he has been shown as Absent. It is the further case of the petitioner that in the marks card vide Annexure F issued for Part II B. Music Examination, instead of showing Sitar as major subject, Vocal has been shown and instead of showing Vocal as minor subject, Thumari has been shown. In the said marks card, the petitioner is shown as having secured 53/100 in Vocal (theory), 180/200 in Vocal (practical) and 70/100 in Thumari and totally he is shown as having secured 303 marks out of 600 and the result is declared as fails. Immediately after the receipt of the said marks card, the petitioner has given a detailed representation vide Annexure G dated 27th January 2001, bringing it to the notice of the concerned authority that, the marks card issued for the Part II B. Music Examination held in the month of April/may 2000 is not correct and it has been wrongly mentioned as exempted in respect of basic subject namely English and so far as another basic subject Kannada is concerned, it has been shown as Absent. It is the further case of the petitioner that in the marks card vide Annexure F issued for Part II B. Music Examination, instead of showing Sitar as major subject, Vocal has been shown and instead of showing Vocal as minor subject, Thumari has been shown. The petitioner has also brought to the notice of the authorities that he studied Sitar as major subject and Vocal as minor subject (shown correctly in the marks card issued for Part-I B. Music Examination ). The first respondent, instead of considering the request of the petitioner in pursuance of the exemption given to the basic subjects namely Kannada and English, has issued the impugned communication/order dated 20th April 2001 vide Annexure H, stating that, the petitioner has been declared as failed on the ground that he has not passed the basic subjects namely Kannada and English and the earlier exemption given to the petitioner in the Part-I B. Music Examination is contrary to the regulations of the University. Assailing the said communication/order dated 20th April 2001 vide Annexure H, the petitioner has presented the instant writ petition. ( 3 ) THE principal submission canvassed by the learned counsel appearing for the petitioner is that, the impugned communication/order vide Annexure H issued by the first respondent is contrary to the material on record and also contrary to the existing regulations. He submits that, the marks card issued for the II year B. Music Examination held in the month of April/may 2000 is without application of mind. To substantiate his submission, he has produced a copy of the letter dated 15th march 2000 vide Annexure E issued by the first respondent wherein exemption has been granted by the Registrar of the first respondent - University in respect of the basic subjects namely Kannada and English. Further, he pointed out that the major subject he studied and appeared is Sitar but in the marks card, it has been shown as Vocal; and the minor subject he studied and appeared was Vocal but in the marks card, it has been shown as Thumari. He submitted that, all these, discrepancies show the callous attitude on the part of the authorities, who have proceeded to issue the marks card without application of mind. He submits that immediately the petitioner has brought to the notice of the concerned authorities through the Students Grievance Cell to the Registrar of Evaluation vide Annexure G as early as on 27th January 2001. The respondents, instead of considering and issuing the rectified marks card declaring him passed in the Part-II B. Music Examination held in the month of April/may 2000, have issued the impugned communication/order contrary to the exemption granted by them earlier vide Annexures C and E, referred supra. He submitted that, therefore, the impugned communication/order issued by the first respondent is contrary to the material on record and their own communications issued vide Annexures C and E and hence the same is not sustainable and liable to be set aside. He submitted that, therefore, the impugned communication/order issued by the first respondent is contrary to the material on record and their own communications issued vide Annexures C and E and hence the same is not sustainable and liable to be set aside. ( 4 ) THE learned counsel appearing for the respondents - University, inter alia, contended and substantiated the impugned communication/order dated 20th April 2001 vide Annexure H, stating that, as per the existing regulations, the earlier exemption granted was contrary to the regulations and the same is not permissible on the ground that the petitioner has not studied the basic subjects namely Kannada and English in the B. A degree course and therefore, the said exemption cannot be granted. He submitted that, when the respondents found and realised the mistake, the impugned communication/order has been issued to the petitioner and no error, as such, has been committed by the respondents - University. ( 5 ) HAVING heard the learned counsel appearing for petitioner, the learned counsel appearing for respondents and the contentions urged by the learned counsel appearing for the parties, the short question that arises for consideration by this Court is as to whether the impugned communication/order issued by the respondents University is in accordance with the existing regulations or have the authorities provided an opportunity of hearing to the petitioner before passing the impugned communication/order? After careful perusal of the impugned communication/order passed by the first respondent, on the face of records, I do not find any justification to sustain the said communication/order issued to the petitioner wherein it is stated that, the exemption given earlier to the basic subjects namely Kannada and English is contrary to the regulations. It is significant to note that, on an earlier occasion, the competent authority of the respondents - University has given exemption by communicating the same to the petitioner giving exemption from appearing for the basic subjects namely Kannada and English to the petitioner for the Part I of B. Music Examination vide Annexure C dated 4th January 1999 and for Part II of B. Music Examination vide Annexure E dated 15th March 2000. When the competent authority of the University has given exemption from studying and appearing for the basic subjects, it is not open for them, at this distance of time, to go back and say that the said exemption given to the petitioner from studying and appearing for basic subjects is contrary to the material facts and the record. The said reasoning given by the authorities is not well founded. Moreover, nothing is forthcoming from the impugned communication/order issued by the authorities. Except stating in a bald manner, without assigning any reasons, the authority has proceeded to pass the impugned communication/order without affording an opportunity of hearing to the petitioner. Hence, in my considered view, the impugned communication/order issued by the first respondent is vitiated for non-compliance of the principles of natural justice. However, after careful perusal of Annexure F, which is the marks card issued for the Part II B. Music Examination conducted in the month of April/may 2000, it is significant to note that, the said marks card has been issued without application of mind. Even after the petitioner giving a detailed representation, the University, authorities have neither given proper instructions to the counsel for the University nor realised their mistake and issued the corrected marks card. On the face of records, the said marks card issued is without application of mind. It is evident from the said marks card issued, as a matter of fact that, the petitioner has studied Sitar as major subject and Vocal as minor subject as per the Marks card issued for the Part I B. Music Examination conducted in the month of April/may 1999 and the petitioner has been given exemption from studying and appearing for the basic subjects and declared his result as passes. But, in the marks card of the Part II B. Music Examination, the major subject in which the petitioner appeared is shown as Vocal instead of Sitar and the minor subject is shown as Thumari instead of Vocal. The petitioner has not all studied these two subjects as major and minor subjects respectively, in the Part II B. Music Examination. This fact itself is sufficient for this Court to set aside the impugned communication/order issued by the first respondent, which is without proper application of mind and without following the procedure and the relevant regulations. The petitioner has not all studied these two subjects as major and minor subjects respectively, in the Part II B. Music Examination. This fact itself is sufficient for this Court to set aside the impugned communication/order issued by the first respondent, which is without proper application of mind and without following the procedure and the relevant regulations. Therefore, at this stage, the impugned communication/order issued by the first respondent dated 20th April 2001 vide Annexure H is not sustainable in law. ( 6 ) HAVING regard to the facts and circumstances of the case, as stated above, I do not find any justification to sustain the impugned communication/order vide Annexure H. ( 7 ) FOR the foregoing reasons, the writ petition filed by the petitioner is disposed of with the following directions:i) The writ petition is allowed. The impugned communication dated 20th April 2001 vide Annexure H in No. KU/exam/grace/42 is hereby set aside and the matter stands remitted to the respondents 1 and 2 for reconsideration afresh. ii) The second respondent herein is directed to pass appropriate orders, in accordance with law, after affording an opportunity of hearing to the petitioner, as expeditiously as possible within two months from the date of receipt of a copy of this order. --- *** --- .