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2016 DIGILAW 890 (CAL)

Nishit Kr. Mondal v. West Bengal State University

2016-11-18

DEBANGSU BASAK

body2016
JUDGMENT : DEBANGSU BASAK, J. 1. The petitioner has claimed that, he had taken the B.A. Part-I examination in Honours. According to the petitioner, he has obtained the pass marks in the Part-I examinations. He had participated in Part-II examination. He was allowed to do so by the university. The university having allowed him to take the Part-II examinations, it is obligatory for the university to publish such results. He has sought for a direction for publication of such results. 2. Learned Advocate for the petitioner has submitted that, the petitioner had taken the Part-I examination after being issued an Admit Card for such purpose by the university. The petitioner was initially issued a mark-sheet for the marks obtained by the petitioner in the Part-I examination conducted the university authorities. Such mark-sheet initially had shown the petitioner to be absent in all the papers for the examination. On the petitioner pursuing the matter with the college authorities, the mark-sheet was subsequently modified and a mark-sheet as at page 21 of the writ petition was made over to the petitioner. Such mark-sheet discloses the marks obtained by the petitioner in the papers that he had appeared in the Part-I examination. He had obtained pass marks. He has submitted that, the hand written mark-sheet was attested by the Principal Secretary of the college. The petitioner had, therefore, nothing to suspect that, the mark-sheet issued in respect of the Part-I examination was not the correct mark-sheet. The petitioner had, thereafter, participated in the Part-II examination. The petitioner was allowed to do so after the petitioner had given a declaration to such effect. In this regard, he has referred to the first annexure to the affidavit-in-opposition filed on behalf of the college authority. He has also referred to the second annexure to the affidavit of the university authorities. He has submitted that, the second annexure being the letter dated July 8, 2015 issued by the university authorities purporting to withdraw the admit card for the Part-II examination for the petitioner as a document brought into existence subsequently. He has referred to the date of the letter. He has submitted that, the letter is dated July 8, 2015 while the Part-II examinations were conducted subsequent thereto. He has further submitted that, in any event the petitioner was not served a copy of such letter. He has referred to the date of the letter. He has submitted that, the letter is dated July 8, 2015 while the Part-II examinations were conducted subsequent thereto. He has further submitted that, in any event the petitioner was not served a copy of such letter. Learned Advocate for the petitioner has relied upon All India Reporter 1966 Supreme Court page 1313 (State of Punjab v. Amar Singh Harika) for the proposition that, passing of an order as contained in the letter dated July 8, 2015 of the university will not become effective unless it is made pubic or the same is communicated. In the present case, he has submitted that the petitioner was not communicated with the letter dated July 8, 2015. He has also relied upon All India Reporter 1976 Supreme Court page 376 (Shri Krishan v. The Kurukshetra University, Kurukshetra) for the proposition that, once a candidate is allowed to take an examination rightly or wrongly, then the statute which empowers the university to withdraw the candidature of the examinee has worked itself out and the candidate cannot be refused admission subsequently for any infirmity. 3. The writ petitioner has been opposed at the behest of the university authorities. Learned Advocate for the university has submitted that, the petitioner did not pass the Part-I examination entitling him to participate in the Part-II examination. He has also submitted that, it is the admitted fact that, the petitioner did not put his correct roll number in the answer scripts of the Part-I examinations. Consequently, the petitioner was not awarded any marks by the university. The hand written mark-sheet was not issued by the university. It does not bear any seal or signature of the university authorities. He has referred to the affidavit-in-opposition filed on behalf of the university authorities and has submitted that, the university authorities did not issue the hand written mark-sheet. The petitioner, therefore, could not have taken the Part-II examination. He has referred to the admit card issued for the Part-II examination and has submitted that, the admit card was issued on provisional basis. Subsequently, the university authorities having found that the petitioner did not pass the Part-I examination, his right to participate in the Part-II examination was withdrawn by the letter dated July 8, 2015. The petitioner had participated for the Part-II examination on the basis of an undertaking. He has referred to the undertaking. Subsequently, the university authorities having found that the petitioner did not pass the Part-I examination, his right to participate in the Part-II examination was withdrawn by the letter dated July 8, 2015. The petitioner had participated for the Part-II examination on the basis of an undertaking. He has referred to the undertaking. He has also referred to the letter dated September 19, 2016 passed by the Court as also the response thereto by the university authorities. He has submitted that, the undertaking of the petitioner given for the purpose of participating in the Part-II examination contains facts which are not correct. The Vice-Chancellor never gave the petitioner any opportunity to participate in the Part-II examination as stated in the so-called undertaking. There was no meeting of the university authorities as claimed in the undertaking. The petitioner, therefore, had misled the university to allow him to participate in the Part-II examination. No right has accrued in favour of the petitioner warranting a direction for publication of the results of the Part-II examination. So far as the Part-I examination is concerned he has submitted that, the answer scripts of the Part-I examination have since been destroyed as a period in excess of the time prescribed for preservation of the record has expired. He has relied upon 2000 Volume 1 Calcutta High Court Notes page 668 (University of Calcutta & Ors. v. Amit Jalan & Ors.) and has submitted that, no direction can be issued for the purpose of publication of results of a candidate who is not entitled to participate in an examination. 4. In reply the learned Advocate for the petitioner has distinguished Amit Jalan & Ors. (supra) on the ground that, the candidates therein had participated in the examination by virtue of the orders of the Court. In the present case, the petitioner was allowed to participate in the examination by the University authorities without intervention of the Court. 5. I have considered the rival contentions of the parties and the materials have made available on record. 6. The petitioner had appeared in the B.A. Part-I examinations. His roll number was 11410100428. He had admittedly given his roll number as 11410100423 in the answer scripts. The university authorities had published the Part-I examination as appearing at page 22 of the writ petition by showing the petitioner to be absent in the subjects. 6. The petitioner had appeared in the B.A. Part-I examinations. His roll number was 11410100428. He had admittedly given his roll number as 11410100423 in the answer scripts. The university authorities had published the Part-I examination as appearing at page 22 of the writ petition by showing the petitioner to be absent in the subjects. The university has explained such markings on the ground that, since the answer script of the petitioner did not contain the correct roll number, the petitioner was treated as absent insofar as the subjects of Part-I examinations are concerned. The petitioner had made several representations to the university authorities. Such representations are dated February 18, 2015 and July 1, 2015. Such representations were forwarded by the Principal of the college to the university authorities for consideration and necessary action. The petitioner claims to be given a mark-sheet after incorporating the necessary amendments therein. The petitioner was awarded marks for the papers he had appeared in. Taking such marks into consideration the petitioner can be considered as qualifying to take the Part-II examination in the pass course. The amendments in the mark-sheet, however, are disputed on behalf of the university authority on the ground that such amendment, were not done by any person authorized by the university. 7. The so-called amendment in the mark-sheet relied upon on behalf of the petitioner does not bear any seal or signature of the university authorities. The university authorities have denied the amendments to be done by it or by any of its officers duly authorized by the university through the affidavit-in-opposition filed in Court. No record has been produced before the Court to establish that, the university authorities considered the petitioner to have obtained the marks as shown in the purported amendments. Apparently the university authorities continues to treat the petitioner to be absent in the Part-I examination. In such perspective, the petitioner cannot be allowed to participate in the Part-II examination having being absent in the Part-I examination and not having passed it. 8. The affidavit-in-opposition filed on behalf of the college authorities discloses that, the petitioner had applied for Part-III examinations of a declaration. The declaration refers to a special permission granted by the Vice Chancellor of the university for a meeting dated March 3, 2016. 9. 8. The affidavit-in-opposition filed on behalf of the college authorities discloses that, the petitioner had applied for Part-III examinations of a declaration. The declaration refers to a special permission granted by the Vice Chancellor of the university for a meeting dated March 3, 2016. 9. By an Order dated September 9, 2016 the Court had required the respondents to disclose whether such permission was granted by the Vice Chancellor or whether a meeting as claimed to be held. Learned Advocate for the university has submitted that, the Vice Chancellor did not give such special permission and that, a meeting as claimed by the petitioner on March 3, 2016 was never held. 10. The university claims that, the provisional admit card was withdrawn by the letter dated July 8, 2015. The learned Advocate for the petitioner is right in pointing out that the letter dated July 8, 2015 is suspect. The letter dated July 8, 2015 speaks of withdrawal of an admit card granted to the petitioner for participating in the Part-II examination. The provisional admit card for the Part-II examination was issued on July 27, 2015. The Part-II examinations were held in the month of August 2015. It is not understood as to how the university could cancel the provisional admit card dated July 27, 2015 for an examination to be held in the month of August 2015 by a writing dated July 8, 2015 wherein it has stated that the Part-II examination of the petitioner in which the petitioner has already appeared stands cancelled. By the letter dated July 8, 2015, therefore, the university authorities are purporting to cancel a provisional admit card of a subsequent date, that is, July 27, 2015 for an examination of another subsequent date of August 2015 stating that, the candidate had appeared in such examination. 11. The foundational basis for the grant of relief to the petitioner is his claim that he has passed the Part-I examination. In support of such claim a mark-sheet containing hand written marks has been relied upon by the petitioner. The university authorities have denied issuance of such mark-sheet containing hand written marks. The petitioner has not produced any compelling evidence to suggest that the petitioner had passed the Part-I examination with the marks incorporated by the hand writing in the mark-sheet. The mark-sheet does not bear the seal and signature of the university. The university authorities have denied issuance of such mark-sheet containing hand written marks. The petitioner has not produced any compelling evidence to suggest that the petitioner had passed the Part-I examination with the marks incorporated by the hand writing in the mark-sheet. The mark-sheet does not bear the seal and signature of the university. In such circumstances, the petitioner cannot be said to have passed the Part-I examination. Passing the Part-I examination is sine non qua for the petitioner in the part-II examinations. 12. Amar Singh Harika (supra) is of the view that, an order to be effective is required to be communicated to the person sought to be effected by it. In the present case, the letter dated July 8, 2015 issued by the university is suspect. The communication thereof has also not been established. However, since the petitioner did not pass the Part-I examination, it would not be prudent to allow the petitioner to have his results for Part-II examinations published. Viewed from such perspective the ratio of Shri Krishan (supra) is not applicable to the facts of the present case. 13. In such circumstances, I find no merit in the present writ petition. W.P. No. 12058 (W) of 2016 is dismissed. No order as to costs.