Shalini N. vs Government of Karnataka

A.S. Bopanna, J.—The petitioners in these petitions are assailing the documents at Annexures-"L and M". By the said documents, the result of the petitioners who were declared to have passed the Junior Health Assistant Female Training Course has been withdrawn on the ground that the minimum marks required to be obtained in the practical examination has not been obtained by the petitioners. Since the issue in all these petitions are similar and common objection statement is filed by the respondents, the petitions are taken up for consideration together and disposed of by this common order.

For the purpose of narration of facts, the facts as pleaded in W.P. No. 38421/2013 is taken as the lead case. The petitioner who had enrolled for the above said course had passed the examination and marks card as at Annexure-"D" had been issued in her favour. As per the said marks card the petitioner had obtained the total of 129 marks in practical-II paper. The maximum marks for the practical-II paper is 200 and the minimum marks required for pass is 100 marks. The petitioner having obtained total of 441 marks was ultimately declared as passed. The petitioner had thereafter secured certain employment. At this stage when notification had been issued calling for applications for appointment as Junior Health Assistants(Females) and applications were made by several persons, the respondents having noticed certain discrepancies with regard to the marks that have been obtained by such candidates had held certain enquiries in that regard. In the said process, insofar as the petitioner herein, it is noticed by the respondents that in the practical examination admittedly the internal examiner had awarded 49 marks while the external examiner had awarded 80 marks. Though the total obtained in the practical exams was 129 marks since the internal examiner had awarded less than 50 marks" it was considered by the respondents that Rule 41(a) of the Karnataka State Nursing Council Byelaws had not been complied with and therefore, it has been held that the petitioner not having obtained minimum required marks in practical examination is not eligible to be declared as passed and therefore the results have been withdrawn.

Though the facts are similar in other petitions, there is marginal difference in the facts pleaded in W.P. Nos. 38421 and 32429/2013 wherein the total marks obtained in the practical exams is 99 as against the requirement of minimum of 100 marks. That aspect of the matter would no doubt require separate consideration after looking into the first aspect of the issue herein relating to the manner in which the minimum marks in practical examination is required to be reckoned. Since the facts relating to the petitioners having joined the course and having passed out of the same is not in dispute, the primary consideration which is required to be made in the instant case is to properly understand the requirement as contemplated under Rule 41(a) of the Karnataka State Nursing Council Byelaws to decipher as to the actual requirement contemplated therein.

For proper understanding of the Rule it would be appropriate to extract the same which reads as hereunder:--

Rule 41(a):- A candidate shall be considered to have passed in the examination if he obtains not less than 50% of marks in each subject in theory and practical separately. The percentage for 1st class is 70 percent and above and distinction is 80% and above.

A perusal of the same would indicate that the requirement therein is that a candidate to pass would have to obtain more than 50% of the marks in practical exam and 50% or more in the theory exams. This would clearly indicate that the only requirement is that out of maximum marks assigned in the practical papers, the candidate should obtain 50% or more to be declared as passed in the practical examination. The Rule does not contemplate any further classification as to the minimum marks to be assigned by the internal examiner or by the external examiner separately for construing the pass percentage. All that the Rule contemplates is that the marks assigned by the internal as well as the external examiner in the practical examination put together should be more than 50% of the maximum marks assigned for the practical examination i.e. one should obtain 100 or more marks in practical examination. If this aspect of the matter is kept in view even if the marks of the petitioners herein as indicated in the document at Annexure-"L" is taken into consideration, except the petitioners in W.P. No. 38426 and 38429/13, all others have obtained more than 50% marks in the practical examination and as such the marks card that had been issued to them depicts the correct position, which is also reiterated by the marks as shown in Annexure-L to the petition. Hence, insofar as the said petitions, on this aspect alone, there was no reason whatsoever for the respondents to modify the result or withdraw the earlier result whereby the petitioners had been declared as passed.

Having arrived at the above conclusion what is further to be taken into consideration is as to whether the very same benefit could be extended to the petitioners in W.P. Nos. 38426 and 38429/2013 since I have already noticed that they have obtained 99 marks in the practical examination and the minimum marks required is 100. Even if this aspect of the matter is kept in view, what is further to be noticed is that the declaration of the result was made at the first instance in the year 2010 and the marks cards had been issued to the petitioners therein on 17.5.2010. The present impugned order is passed during August 2013. This lapse in time is also relevant to be kept in view. In that background the reason put forth in the objection statement for the entire action initiated subsequently is due to the discrepancy that was noticed on the recommendation of different committees that were set up. At the outset the reference to the documents produced at Annexure-R10 to the objection statement would indicate that it is the enquiry report relating to the discrepancies in the marks card in respect of the course that had been undergone by the petitioners. The said report at Clause 5.5 would refer to the different colleges and persons who have indulged in certain malpractices with regard to the corrections made to the marks cards. The college wherein the petitioners had studied is depicted at Sl. No. 16. The names of the petitioners does not find place therein. Therefore, what is to be taken into consideration is that the petitioners were not responsible for any of the alterations that have occurred in the marks card nor the earlier marks card issued to the petitioners was due to misrepresentation of the facts made by them. Needless to mention that in fact the very marks card issued on 17.1.2010 would depict the marks as "99" in respect of the practical examination. In a normal circumstance as seen from the recommendations of the committee, there is a provision for providing five grace marks. In the instant case, if it had been indicated to the petitioner at an earlier point with regard to this aspect of the matter herein above, it would have been open to the petitioner to seek for such grace marks which was provided therein. But since the respondents-authorities had issued the marks card declaring the said petitioners as passed though it depicted the marks as "99" the benefit of grace was already available to them. Therefore, it would have to be presumed that in the case of said petitioners, the results had been declared as passed taking note of the fact that they had fallen short by only one mark. Further more what is also to be noticed is that based on such result the petitioners have altered their position and at this juncture on the ground of certain enquiries relating to certain malpractices the benefit cannot be denied to them even in the said two cases since they were not involved in the said malpractice. Hence, I am of the opinion that it would not be just and proper to withdraw the result earlier granted in favour of the petitioners in W.P. Nos. 38426 and 38429/13 declaring them as passed. Therefore, to the said extent, I am of the view that in the present peculiar facts, the benefit should be extended to the petitioners in the said two petitions as well but by making it clear that the same would not act as a precedent in other cases but the benefit is granted for the reasons which has been stated above.

In the result, since I have already arrived at the conclusion that the result of the petitioners which was declared as passed at an earlier instance is valid and the withdrawal of the marks card issued earlier is not justified, eventhough there is no need to specifically quash Annexures-"L and M" as it relates to several other candidates it would suffice to declare that the petitioners herein who have been issued with the marks card earlier on 17.5.2010 declaring them as passed in the course undergone for Junior Health Assistant shall remain valid for all purposes. In terms of the above, all these petitions stand disposed of. No costs.