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2019 DIGILAW 308 (JK)

Arti Gupta v. University of Jammu

2019-06-04

SINDHU SHARMA

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JUDGMENT : Sindhu Sharma, J. 1. Petitioner seeks a direction from this Court to quash Notification No. 2/BAMS-2nd Professional Examination for Annual Session February-March, 2004 issued vide No. EVAL-II/Prof/07/5992-6000 dated 30.08.2007 whereby the result of the petitioner has been amended by declaring her as reappear in Agad Tantra subject. She also seeks declaration that in terms of Notification No. 1/BAS dated 26.05.2004, she may be declared as having passed her II Professional Examination Annual Session. 2. The facts, as narrated briefly in this petition, are as under: That the petitioner was admitted to the degree course of Ayurvedic Medicine and Surgery in the Institution of Ayurvedic and Research, Jammu, BAMS course consists of three professional examinations are to be successfully undergone, the degree is granted. Petitioner appeared and successfully completed the 1st professional BAMS examination held in January, 2003. Subsequently, petitioner appeared in 2nd Professional BAMS examination in February, 2004, and was also declared successful in the examination and the Marks Card has also been issued by the respondents on 27.05.2004. Petitioner thus appeared in 3rd Professional BAMS examination held in January, 2006, successfully passed the same, as such, underwent the compulsory rotatory internship training for a period of 12 months from 10.04.2006 to 09.04.2007 and further internship of three months training in Jammu Institute of Ayurvedic and Research Hospital, Jammu and six months internship training in Government Hospital, Sarwal. Principal Jammu Medical Institute of Ayurvedic and Research, Jammu issued the Internship completion Certificate dated 11.04.2007, and the petitioner, thus, thereafter registered with the Board of Ayurvedic and Unani System of Medicine vide Registration Certificate No. 750(AYD) on 20.4.2007. Public Service Commission, Jammu vide Notification No. 03-Estt. of 2007 dated 15.03.2007 invited applications for the post of Medical Officer Ayurvedic. The essential qualification for the aforesaid post was Degree in Ayurvedic (BAMS) or equivalent, being eligible applied for the said post of Medical Officer. Board suggested her to get the total marks for IInd Professional Examination attested in respect of Agad Tantra subject. It appears that some fluid used against the total marks written, as such, some official of the Board of Ayurvedic and Unani System of Medicine advised the petitioner to get the same attested from the University. Thus, the petitioner approached the respondent No. 2 for attestation of the original marks sheet, which was provided to her by them. It appears that some fluid used against the total marks written, as such, some official of the Board of Ayurvedic and Unani System of Medicine advised the petitioner to get the same attested from the University. Thus, the petitioner approached the respondent No. 2 for attestation of the original marks sheet, which was provided to her by them. The respondents retained her Marks Sheet and subsequently vide Notification issued under Endorsement Notice No. EVAL-II/Prof/07/5992-6000 dated 30.08.2007 declared the amended result of the petitioner and brought her under reappear category in Agad Tantra subject in her second professional examination of the BAMS course. This notification was issued in continuation of the result Notification No. 01/BAMS-II Prop. Examination Annual Session February/March, 2004 dated 26.05.2004. Thus, the petitioner is aggrieved of this notification vide which she has been declared reappear category in Agad Tantra subject by issuing an amended result after more than 3 1/4 years after having successfully passed the examination in BAMS course. Petitioner challenges the same on the ground that the action of the respondents by issuing her amended result after more than 3 VA years from the date of the Notification of the earlier result dated 26.05.2004 is arbitrary, illegal and against the statute, as such, deserves to be quashed. 3. Reliance has been placed by the petitioner on Statute 61 of the University Calendar Vol-II in terms of which, no result could be amended after the expiry of six months from the date of declaration. 4. Amendment of the result could only be within a period of 6 months from the date of the declaration of the result i.e. 25.04.2004. Since this amendment of result was on 30.08.2007 after more than 3 1/4 years is arbitrary and against the statute and, as such, required to be set aside. 5. It is also submitted that the petitioner was rightly declared successful in her BAMS IInd year Agad Tantra subject in terms of regulation of Chapter XLVIII. In Chapter XLVIII under heads BAMS, petitioner had only to secure 50% marks in theory (written) and oral examination taken together and 50% marks in practical subject in each concerned subject. Also, the petitioner has rightly been declared as passed by the respondents in terms of Regulation 32 of Chapter XLVIII under the heading Bachelor of Ayurvedic Medicine and Surgery, which is reproduced below: "32. Also, the petitioner has rightly been declared as passed by the respondents in terms of Regulation 32 of Chapter XLVIII under the heading Bachelor of Ayurvedic Medicine and Surgery, which is reproduced below: "32. A candidate shall be declared to have passed the examination if he obtains not less than 50% marks in the theory (written) and oral examination taken together and not less than 50% marks practical examinations in each of the concerned subjects." 6. Since she was awarded 42 marks out of 100 marks in theory (written) and 67 marks out of 100 marks in viva/practical/oral, thus, she had obtained the total of 109 marks out of 200 marks i.e., more than 50% marks in the said subject in the theory and oral examination taken together. It is submitted that she has also obtained 67% marks in practical/oral/viva. Thus, in terms of the regular, she was rightly declared pass in the IInd Professional Examination of BAMS in Agad Tantra. 7. In their objections, respondents have submitted that the Provisional Certificate was issued to the petitioner on 13.04.2007 certifying that the petitioner has successfully passed the BAMS Examination of this University on 31.03.2006 from the Jammu Institute of Ayurveda and Research, Jammu. Subsequently, it came to the notice of the University that the petitioner could not have been issued such a provisional certificate as she had not cleared 2nd Professional Examination held in the year 2004 in the subject of Agad Tantra. Respondents have also relied on Statute 8.1 of the Statutes governing Bachelor of Ayurvedic Medicine and Surgery, as contained in Chapter XLVIII, University Calendar Vol. II, which states that since she secured only 42 marks out of 100 marks in theory, whereas the minimum pass marks required in theory was 50%. 8. This error came to the notice of the University when the petitioner approached the University for issuance of a new marks certificate in her favour. Thus, the matter was placed before the Authorities and the result of the petitioner was amended and accordingly Notification dated 30.08.2007 issued by the University amended the result of the petitioner by showing her as reappear in the subject of Agad Tantra. Thus, the matter was placed before the Authorities and the result of the petitioner was amended and accordingly Notification dated 30.08.2007 issued by the University amended the result of the petitioner by showing her as reappear in the subject of Agad Tantra. Since she had failed to clear the examination, therefore, she could not be declared to have passed as the same contrary to the correct position as per the record and consequently, she was not eligible for the award of BAMS degree. 9. Heard learned counsel for the parties. Respondents despite opportunities have not produced the record. 10. From the averments, two issues arise for consideration: (I) The first issue, which arises for consideration, is whether in terms of the Statute/Regulation 61 of the University Calendar Vol-II, the University could amend the result of the petitioner. For reference, Statute 61 is reproduced below:; "61. In any case where it is found that the result of an examination has been affected by an error the Controller of examination shall amend such result in such manner as shall be in accordance with the tune position and report each such case to the Vice Chancellor. Provided that no such result shall be amended at the expiry of 6 months from the date of declaration." Admittedly the date of declaration of result of the petitioner was 25.04.2004 and the said result was amended after more than V-A years, i.e., on 30.08.2007. Thus, it is apparent that the respondents did not correct their error within the stipulated time of six months from the date of declaration of the result of the petitioner. Moreso, after the petitioner has passed her 3rd Professional BAMS examination, she has completed the compulsory rotatory internship training for the period of 12 months and further training at Government Ayurvedic Hospital Shalamar Road, Jammu & Government Hospital Sarwal, Jammu and registered with the Board of Ayurvedic and Unani System of Medicine vide Registration Certificate No. 750(AYD) dated 20.04.2007. It is also not the case of the respondents that this marks sheet has been obtained by any unfair means or fraud on the part of the petitioner and according to them, it is an error which needs to be rectified. It is also not the case of the respondents that this marks sheet has been obtained by any unfair means or fraud on the part of the petitioner and according to them, it is an error which needs to be rectified. Since the Statue provides the time for correction of error, which has not been done within the stipulated time and the petitioner having completed her course would affect her harshly relegating to a position to undergo the same exam again deny her the degree of BAMS, thus rendering her ineligible from seeking consideration in any employment. More so, when the degree for BAMS also stood awarded to her. This view was also considered by this Court in Apoorna Kaul Vs. Jammu University, 2017 (4) JK HC 496. Relevant extract of the judgment is reproduced hereunder: "However, the amended result too was still affected by an error and not in accordance with the true position in terms of Statute 61 of University Calendar, because three more marks got by the petitioner in English Paper-B in the re-evaluation result were neither added in the amended result nor till date the same has been rectified by the respondents in terms of Statute-61 (supra), although they have themselves admitted in paragraph 3(iv) of para-wise reply of objections that the petitioner had got 03 marks higher in the subject of English. We are in the month of June, 2017, i.e., 22 months have lapsed from the date of declaration of result of petitioner on 01.08.2015. Since the respondents did not rectify the said mistake within the stipulated period of six months from the date of declaration of result of petitioner, Statute-61 of University calendar, in the given situation, does not apply to the case of the petitioner." (II) Second issue, which arises for consideration, is whether the petitioner had infact passed the subject Agad Tantra in her BAMS IInd Professional examination in terms of Statute 8.1 of the Statutes governing Bachelor of Ayurvedic Medicine and Surgery, Chapter XLVIII of University Calendar Vol. II. Statute 8.1 for reference is reproduced below: "The minimum number of marks required to pass the examination shall be 50% in theory & oral and 50% in practical and/or clinical (including internal assessment where provided), separately in each subject. II. Statute 8.1 for reference is reproduced below: "The minimum number of marks required to pass the examination shall be 50% in theory & oral and 50% in practical and/or clinical (including internal assessment where provided), separately in each subject. Provided that a candidate who has appeared in an examination full and fails in one subject only or part thereof by not more than one percent of the maximum marks in subject in which he/she has failed, shall be deemed to have passed the examination by adding the required number of marks in the subject or its parts, as the case may be." Petitioner as well as respondents both have relied on this Statute 8.1 in support of their contentions, while petitioner in terms of the said Statute submits that since she has secured 109 marks out of 200, therefore, she has to be declared to be passed in said examinations and rightly be declared so. Whereas the respondents also have relied on this, that she has failed to pass the said examination. Statute 8.1 (supra) specifically states that the minimum number of marks required to pass the examination shall be 50% in theory & oral and 50% in practical and/or clinical (including internal assessment where provided), separately in each subject. Thus, for the petitioner, she had to secure 50% in theory and oral. It appeared that the petitioner was awarded 42 marks out of 100 marks in theory and 67 marks out of 100 marks in viva voice. Thus, she had obtained the total of 109 marks out of 200 marks which were more than 50% marks in the said subject. Since she has also obtained 67% marks in practical and/or clinical, therefore, she was rightly declared pass in the BAMS examination. This averment has not been denied by the respondents. Thus, in terms of the said Statute, also the petitioner had passed the said subject of Agad Tantra. 11. In view of the aforesaid, this petition is allowed. The impugned Notification No. 2/BAMS-2nd Professional Examination Annual Session February-March 2004 issued vide No. EVAL-II/Prof/07/5992-6000 dated 30.08.2007 whereby the result of the petitioner has been amended by declaring as reappear in Agad Tantra subject is hereby quashed and respondent are directed to treat the petitioner having passed IInd Professional Examination Annual Sessions in terms of Notification No. 1/BAS dated 26.05.2004.