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2008 DIGILAW 1374 (BOM)

Vijaya Vilas Pemgirikar v. State of Maharashtra

2008-09-23

F.I.REBELLO, K.U.CHANDIWAL

body2008
ORAL JUDGMENT: (Rebello, J.) 1. Rule. Heard forthwith. 2. The petitioner was admitted to the three year degree course in law from SPS Law College, Sangamner, affiliated to the University of Pune - respondent no.2. The petitioner was admitted during the academic year 2002-03. The petitioner has been declared to have been passed in the First Class. 3. In terms of the Rules for Standard for Passing, Benefit, etc. of the University of Pune, Faculty of Law, the following rules are relevant : "1. Standard of Passing To pass any examination, a candidate must obtain – a. 35% of the full marks in each paper b. 50% of the total marks in the examination. 2. Entitlement to appear at the end of the academic year : A candidate who has completed his term for Semester I, III or V of the three-year LL.B. Course, and has paid examination fees for such Semester-Examination, but has remained absent for any or all papers or has failed in any or all papers at such Semester Examination, shall be entitled to appear for any or all of such papers respectively along with the Semester II, IV or VI examinations respectively. Any student who has appeared for Semester I, III or V Examination of the three-year LL.B. Course shall be entitled to re-appear for all or any of the papers respectively along with the Semesters II, IV or VI examinations for improving his marks. " It would, therefore, be clear that to pass any examination, a candidate must obtain 35 marks in each paper and also have 50% of the total marks in the examination. 4. The petitioner took admission for the three year LL.B. course in the month of June, 2004 and appeared for the V Semester in the month of October, 2004 in five subjects. The petitioner obtained more than 35 marks in each paper and secured 257 marks out of 500. In terms of Rule 1 of the Rules aforestated, the petitioner has passed the said examination. To decide the controversy, it may be mentioned that in the paper "Land Laws including Ceiling and Other Local Laws", the petitioner obtained 36 marks. The petitioner thereafter appeared for Semester VI. The petitioner filled in the form only for VI Semester. In terms of Rule 1 of the Rules aforestated, the petitioner has passed the said examination. To decide the controversy, it may be mentioned that in the paper "Land Laws including Ceiling and Other Local Laws", the petitioner obtained 36 marks. The petitioner thereafter appeared for Semester VI. The petitioner filled in the form only for VI Semester. The petitioner did not appear in the subject of "Land Laws including Ceiling and Other Local Laws" as the petitioner had already passed in the said subject in the examination held in October, 2004. The results of the petitioner were declared. A combined marksheet of the V and VI Semesters was issued on 22.6.2005 and the petitioner was declared as failed though in VI Semester, the petitioner obtained more than 35 marks in each of the papers and had also obtained 345 marks out of 500, thus, more than 50%. In Semester V, insofar as "Land Laws including Ceiling and Other Local Laws", the marks obtained by the petitioner were shown as "NA FF". The petitioner was declared failed. The petitioner, through her college, made a representation dated 29.6.2005 to get corrected the statement of marks, however, till date, the petitioner has received no communication. 5. The petitioner had secured 36 marks in the subjects of "Code of Criminal Procedure" and "Juvenile Justice and Probation of Offenders Act" and, therefore, appeared in the month of October, 2005, to improve the marks in the said subject and also filled in the form for the subject "Land Laws including Ceiling and Other Local Laws". The petitioner was, therefore, issued a fresh marksheet on 25th January, 2006, in which for Semester V, the marks obtained by the petitioner namely 36 in the examination conducted in October, 2004, were shown and insofar as subject "Code of Criminal Procedure, and Juvenile Justice & Probation of Offenders Act", the improved marks were shown. It is the case of the petitioner that in these circumstances, the action of the respondent no.2 in not correcting the marksheet issued on 22nd June, 2005, is illegal. 6. Reply has been filed on behalf of respondent no.2 by Dr.Rajendra Manohar Pandit, Assistant Registrar, Examination Section. It is set out that the petitioner in the subject of "Land Laws including Ceiling and Other Local Laws" secured 36 marks out of 100 and also 50% marks in all other subjects. 6. Reply has been filed on behalf of respondent no.2 by Dr.Rajendra Manohar Pandit, Assistant Registrar, Examination Section. It is set out that the petitioner in the subject of "Land Laws including Ceiling and Other Local Laws" secured 36 marks out of 100 and also 50% marks in all other subjects. As per the Rule, the petitioner was supposed to appear for the subject "Land Laws including Ceiling and Other Local Laws" in the next examination held in April, 2005, along with subjects of Semester VI of the third year LL.B. course. The petitioner did not appear and as such was shown as "Not Appeared". The petitioner, in order to improve her performance in the subject of "Cr.P.C., Juvenile Justice & Probation of Offenders Act" of VI Semester of April, 2005, appeared for the examination and secured 52 marks out of 100 marks. The petitioner also appeared for the subject "Land Laws including Ceiling and Other Local Laws" of Semester V. The results of the examination were declared on 30.12.2005 and the petitioner was declared as failed in the said examination since she got only 23 marks out of 100 in the subject of "Land Laws including Ceiling and Other Local Laws". 7. As per Ordinance 140-A, the benefit of carrying forward the highest marks obtained by the student in the last two preceding examinations, is granted to the students. Clause 3 of Ordinance 140-A mentions that if an examinee appears for the subject/head of passing of the same examination of the University for more than once, highest marks obtained by him/her in the last two preceding examinations shall be given effect to in the result of the concerned examination, if due to such marks of previous attempt, examinee passes the subject concerned and also the examination as a whole. The University granted the benefit of Clause 3 of Ordinance 140-A to the petitioner by giving effect to 36 marks obtained by her in the said subject in October, 2004, in the result of October 2005 examination and she was declared as passed in first class in the said examination. The petition, it is submitted, should be dismissed. 8. The University granted the benefit of Clause 3 of Ordinance 140-A to the petitioner by giving effect to 36 marks obtained by her in the said subject in October, 2004, in the result of October 2005 examination and she was declared as passed in first class in the said examination. The petition, it is submitted, should be dismissed. 8. We have heard the learned counsel for the parties and we are of the opinion that the respondent - University did not address itself to the correct question, nor does the affidavit reflect the position in terms of the Rules for Standard for Passing, Benefit, etc. We have already reproduced the relevant rules and we need not reiterate them. 9. We may also refer to Clause of Ordinance No.140-A, which reads as under: "140-A(1) Notwithstanding anything contained in any other Ordinance, if an examinee passes in any one or more subject/s, head/s of passing, of any examination he shall not be allowed to appear for subject/s, head/s unless there is specific provision to that effect in respect of concerned examination." 10. In the instant case, the petitioner had passed the V Semester examination. Once the petitioner has passed V Semester examination, there was no need for the petitioner to once again appear for the purpose of passing in the subject of "Land Laws including Ceiling and Other Local Laws" as the petitioner had already secured 36 marks, unless the petitioner wanted to improve her marks. Under Ordinance 140-A(1), the student, who has passed, cannot appear in a subject, particularly in the same subject/head of passing when there is no specific provision to that effect. In terms of Rule 2 of the Rules, if the petitioner wanted to improve the marks, the candidate could have appeared in VIth Semester for improving the marks. The petitioner appeared for the VIth Semester in October 2004, but did not appear for in the subject of "Land Laws including Ceiling and Other Local Laws". 10-A. The question would then be, can the respondent no.2 in the absence of the petitioner’s appearing for "Land Laws including Ceiling and Other Local Laws" treat the petitioner as having not appeared or as failed ? Firstly considering Rule (1), the petitioner had passed in the subject and in the V Semester on 30th December, 2004. 10-A. The question would then be, can the respondent no.2 in the absence of the petitioner’s appearing for "Land Laws including Ceiling and Other Local Laws" treat the petitioner as having not appeared or as failed ? Firstly considering Rule (1), the petitioner had passed in the subject and in the V Semester on 30th December, 2004. Once the petitioner had passed, the petitioner considering Ordinance 140-A(1) could not have appeared except in terms of Rule 2. That required the petitioner to appear in the VI Semester for improving marks. The petitioenr did not appear in the VI Semester for improving marks. The petitioner otherwise considering Ordinance 140-A(1) was precluded from appearing in the same subject in which she had passed. The action of respondent no.2 was, therefore, totally arbitrary and illegal and contrary to Rules 1 & 2 of the Rules for Standard for Passing, Benefit etc., framed by the respondent no.2, read with Ordinance 140-A(1). 11. The learned counsel has sought to rely on Rule 3 to contend that the candidate, who obtains atleast 50% of a paper shall at his option be exempted from that paper at a subsequent examination. This Rule 3 has to be read in the context of Rule 5, which permits that the candidate, who obtains at the Ist and IInd years of three year LL.B. Course 50% of the full marks in any six out of the total number of papers is allowed to keep terms for the IInd and IIIrd year of LL.B. examination and is exempted from applying in these subjects in which he/she has secured 50% or more marks. It has nothing to do with the betterment of marks, which is clearly covered by Rule 2. 12. In our opinion, therefore, the respondent - University was clearly in error in showing in the marksheet of VI Semester examination the petitioner’s having absent for the paper "Land Laws including Ceiling and Other Local Laws" and declaring the petitioner as failed. 13. For the aforesaid reasons, we find merit in the contention of the petitioner. The respondent no.2 is directed to make necessary corrections in the marksheet issued on 22.6.2005 and under the subject "Land Laws including Ceiling and Other Local Laws" to delete the words "NA FF" and to substitute the same by "P 36". 13. For the aforesaid reasons, we find merit in the contention of the petitioner. The respondent no.2 is directed to make necessary corrections in the marksheet issued on 22.6.2005 and under the subject "Land Laws including Ceiling and Other Local Laws" to delete the words "NA FF" and to substitute the same by "P 36". Similarly, in the said marksheet, at the bottom, to delete the word "Fail" and substitute the same by "Pass". The entire exercise to be completed within one month from today. Rule made absolute accordingly. No order as to costs. Petition allowed.