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Judgment
F.I. Rebello, J.—Rule. Heard forthwith.
The petitioner passed the B. Sc. examination in the year 1999-2000 and took admission to M.Sc. Course in the year 1999-2000. According to the petitioner, she has successfully completed her M.Sc. Part-1 in the year 2006-2007. Thereafter, she was admitted for M.Sc. Part-II. The petitioner was doing M.Sc. in Analytical Chemistry. The petitioner appeared for M.Sc. examination held in November 2007. According to the petitioner, allocation of marks of the said examination is as follows for all papers.
Thus the grand total of 100, is divided in the ratio of 20:80.
The M.Sc. Course of the University is consists of four semesters. The petitioner has completed successfully the Ist semester and obtained 289 marks out of 500. In the 2nd semester, the result of the petitioner is not declared / passed because of less marks obtained in the subject Physical Chemistry - II. The petitioner obtained 327 marks out of 500 in 3rd semester. The petitioner obtained 361 marks out of 500 in the 4th semester. Due to backlog in the 2nd semester, the result declared on 12-01-2008 shows that she has failed. Passing of the subject is of 40 marks out of 100. To pass the University Examination (UEX), the minimum passing is 32 out of 80.
The statement of marks for the 2nd semester shows that in the subject Physical Chemistry - II petitioner has obtained 18 marks out of 20 as internal marks and obtained 23 marks out of 80 in UEX. She has thus, obtained 41 marks out of 100. Even though passing is of 40 marks, she has been declared as failed, because she could not get 32 marks but obtained 23 marks in UEX. The petitioner applied for verification of marks. The Controller of the Examination, by communication dated 24-03-2008, informed the petitioner that, on verification of answer books, it has been found that marks have been correctly totalled and there is no mistake. The petitioner applied for photo copies of answer book, which was given to the petitioner on 03-04-2008. According to the petitioner, she scrutinised the paper and on scrutiny, she found that she has not been correctly assessed insofar as Question No. 4a (iii), and Question No. 4(a) (iv) and 4 (b). In view of that, the petitioner had made an application dated 07-04-2008 before respondent No. 2, describing the entire situation. Till date, no action has been taken on the same.
The petitioner contends that as per rules of the University, she is entitled to condonation of 10% of marks, and therefore, if the petitioner is given grace marks then she will get benefit of 10 grace marks, by which her marks in UEX will be 33 and she has to be declared to have passed the examination. In the course of the proceedings, the relief which the petitioner sought amendment and prayed for, is the following relief.
By issuing writ of mandamus or any writ of alike nature or direction the respondent No. 2 may kindly be directed to grant grace marks of 10 as per Ordinance - 4 (Condonation) of University Ordinance relating to examinations ( w.e.f. 2001-2002) of North Maharashtra University, Jalgaon and further be directed to declare the result and the corrected mark memo be issued forthwith.
Though the respondents have been served, they have not filed reply, but have argued the matter based on the Statutes of the University and interpretation thereof.
Insofar as the first contention of the petitioner that the answers to questions as set out earlier were either not properly assessed or not correct, we havd called for the answer sheets papers and on perusal of the same, we find that the answers have been assessed and marked. There is, therefore, no merit in the said contention.
The issue, however, which has been argued and is required to be dealt with is whether the petitioner is entitled to grace marks in terms of Ordinance - 4 as is sought to be interpreted by the petitioner and she be declared to have passed the examination.
The respondent - University has framed Ordinances and which are described as Uniform Ordinances relating to the examinations. Ordinance - 1 deals with the grace marks for passing in each head of passing (Theory/Practical/Oral/Sessional)(External/Internal). Under this Ordinance, the grace marks for passing in each head is set out. It is further set out, the benefit of such gracing marks given in different heads of passing shall not exceed 1% of the aggregate marks in that examination. Proviso sets out that the benefit of gracing of marks shall be applicable only if the candidate passes the entire examination of semester/year. This Ordinance is important for the reason that heads of passing have been explained, as being theory, practical, Oral or Sessional, in External or Internal Examination. Ordinance - 2 pertains to the grace marks for getting higher class, with which we are not concerned. Ordinance - 3 relates to grace marks for getting distinction in the subject only.
We are, however, concerned with Ordinance - 4, which reads as under:
Ordinance 4. Condonation. If a candidate fails in only one head of passing, having passed in all other heads of passing, his/her deficiency of marks in such head of passing may be condoned by not more than 1% of the aggregate marks of the examination or 10% of the total number of marks of that head of passing in which he/she is failing, whichever is less. However condonation, whether in one head of passing or aggregate head of passing be restricted to maximum up to 10 marks only.
Condonation of deficiency of marks be shown in the Statement of Marks in the form of asterisk and Ordinance number.
Provided that this condonation of marks is concurrent with the rules and guidelines of professional statutory bodies at the All India level such as AICTE, MCI, Bar Council, CCIM, CCIII, NCTE etc.
The corresponding Ordinance in the earlier Statute was Ordinance 137 and the same reads as under.
Ordinance 137 : Grace marks for passing in the subject:
If a candidate fails in only one head of Theory paper of passing, (not applicable for practical/oral) having passed in all other heads of passing, his deficiency of marks in such head, head of passing, may be graced by not more than 1% of aggregate marks of the examination or 10% of the total number of marks of the head of passing in the subject in which he is failing, whichever is less.
On behalf of the respondents, the learned Counsel submits that 10% of the total number of marks of the head of passing would be in that subject and if it is so considered at the highest, the petitioner would be eligible for 8 marks which would make the petitioner 31 marks. So calculated, the petitioner would be getting 31 marks whereas the minimum required is 32 marks. On the other hand, on behalf of the petitioner, the learned Counsel submits that Ordinance correctly read would show that what has to be counted is either aggregate marks of the examination or 10% of the total marks of the head of passing. The expression ''total number of marks of the head of passing'' must be read as ejusdem generis with aggregate marks of the examination. So read, the head of passing is not limited to the subject but to the head of passing. In the instant case, head of passing would be UEX. The maximum marks are 1600 and 10% would be 16 marks. But considering the Ordinance, maximum number of marks to be given is 10. The petitioner therefore is entitled to 10 marks which would make a total of 33 marks. As the minimum required is 32 marks, the petitioner is therefore, entitled to be declared as passed.
Before answering the issue, we may consider the Ordinance as it earlier stood namely Ordinance-137. The language of that Ordinance provides for two contingencies in awarding grace marks. (1) the deficiency of marks in head of passing, may be graced by not more than 1% of aggregate marks of the examination or (2) 10% of the total number of marks of the head of passing in the subject in which he is failing, whichever is less. In other words, it is 1% aggregate marks of the examination or 10% of the marks of head of passing in that subject. The first part of head of passing would be heads of passing of all subjects and in such a event, gracing would be 1% of the aggregate marks of the examination. Second situation is 10% of the total number of marks of the head of passing in the subject. This makes it clear that head of passing is not in all subjects but only the head in which candidate has failed. There is, therefore, no ambiguity in that Ordinance.
The question, however, which we have to answer is Ordinance 4 as it now stands. A learned Bench of this Court in Ajay Prakash Ambagade Vs. University of Pune, Vice Chancellor University of Pune, Controller of Examinations, University of Pune and Institute of Business Management and Research, had an occasion to consider the similar Ordinance of the Pune University. The said Ordinance reads as under:
Ordinance 4 : Condonation If a candidate fails in only one head of passing, having passed in all other heads of passing, his/her deficiency in such head of passing may be condoned by not more than 1% of the aggregate marks of the examination or 10% of the total number of marks of that head of passing in which he/she is failing, whichever is less. However condonation, whether in one head of passing or aggregate head of passing, be restricted to maximum up to 10 marks only. Condonation of deficiency of marks be shown in the Statement of Marks in the form of asterisk and Ordinance number.
Provided that this condonation of marks is concurrent with the rules and guidelines of professional statutory bodies at the All India level such as AICTE, MCI, Bar Council, CCIM, CCIII, NCTE, etc. Notes for Ordinances from 1 to 4:
Considering the two Ordinances, what can be seen is that the language is the same. On facts there, the petitioner who was declared failed in the subject of Advanced Java Programming as he had secured 25 marks out of 80. The minimum requirement for passing is 32 marks. The learned Bench of this Court considering the language, accepted the contention advanced on behalf of the petitioner there, who was claiming seven grace marks. It is true that we do not find much discussion as to why the learned Bench came to the conclusion as to why grace marks should be awarded.
For the Ordinance to apply the following requirements are essential.
(1) The candidate must fail in only one head of passing, having passed all heads of passing;
(2) His/her deficiency of marks in such head of passing may be condoned by not more than 1% of the aggregate marks of the examination, or;
(3) 10% of the total number of marks of that head of passing in which he/she is failing, whichever is less.
Insofar as Item-2 is concerned, there can be no difficulty in interpreting as it speaks not more than 1% of the aggregate marks of the examination. As an illustration, if the total number of marks to be allotted was 2000. 1% would be 20 which however is limited to maximum of 10 marks. What is clear however is what has to be considered is aggregate marks of the examination.
We now consider the third requirement. Is 10% restricted only to the head of passing in that subject and or is it head of passing of the entire examination. If in the first instance, the aggregate marks of the examination are to be considered we fail to see considering the language of the Ordinance why it cannot be read ejusdem generis, considering that the object of the Ordinance is to give grace marks and the clear language of the Ordinance does not speak of head of passing in that subject which was the language used in Ordinance - 137 of the earlier Ordinances. It, therefore, presupposes that there is a clear departure from the earlier Ordinance which restricted it only to the head of passing in that subject, whereas under Ordinance-4 the language used is total number of marks of that head of passing. In the instant case, that head of passing carries 1600 marks. As can be seen from Ordinance-1, the benefit of grace marks should be given only for passing in each head of passing. That had can be Theory, Practical, Oral, Sessional, in External or Internal examination. Therefore, what has to be considered is the marks to be allotted for the head of passing. In our opinion, this would be the correct interpretation.
In the instant case, it is UEX and it carries altogether 1600 marks. It is a beneficial Ordinance framed for the benefit of the students who otherwise are successful but have failed to secure the requisite marks in one subject. If the object of the Ordinance is to give benefit to the students then the Courts must give effect to that intent, which would subserve the larger purpose of the Ordinance and thereby give effect to the intent of the delegates who made the Ordinance. The delegates knowing fully well its earlier Ordinance - 137 have departed from the the language of that Ordinance and have made an Ordinance which uses different language than Ordinance 137. We are, clearly, therefore of the opinion that the interpretation sought to be given by the petitioner must be accepted and the expression '' head of passing'' must be considered against total marks which are to be allotted under the head UEX.
For the aforesaid reasons, we hold that the petitioner is entitled to 10 grace marks in terms of Ordinance - 4 of the Ordinances of the University and consequent to, the respondents are directed to add 10 marks to the petitioner''s total in Physical Chemistry - II and declare the result of the petitioner.
Rule made absolute accordingly. There shall be no order as to costs.
Authenticated copy of this order be furnished to the learned Counsel for the parties.