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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13873 OF 2016
Akshay Sureshkumar Nalavade
Age -19 years, Occ. - Education
Add : Plot No.18, Sagar Park, Lane No.2,
Chandan Nagar, Pune - 411 014. .. Petitioner
Vs.
1 The Savitribai Phule Pune
University
(Formerly known as University
of Pune) Ganeshkhind,
Pune - 411 007;
2 The Maharashtra Institute of
Technology
S.No.124, Kothrud,
Paud Road, Pune - 411 038;
3 The State of Maharashtra .. Respondents
......
Mr. Harihar Bhave a/w. Mr. Santaram Anant Tarale, Advocate for
the Petitioner.
Mr. Rajendra Anbhule, Advocate for Respondent No.1.
Ms. R. M. Shinde, AGP for Respondent No.3 - State.
......
CORAM : SHANTANU S. KEMKAR AND
PRAKASH D. NAIK, JJ.
RESERVED ON : MARCH 2, 2017
PRONOUNCED ON : MARCH 7, 2016.
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JUDGMENT (Per PRAKASH D. NAIK, J.) :
Rule. Rule is made returnable forthwith.
2 By consent of parties, matter is taken up for final disposal forthwith.
3 Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner has prayed for issuance of Writ of Mandamus or any other appropriate writ, order or direction seeking reliefs prayed for in this petition. The petitioner is a student who secured admission with respondent no.2 for bachelor degree in Civil Engineering course in the year 2014. As averred in the petition, the petitioner had taken provisional admission for the third year of bachelor degree in Civil Engineering (B.E. Civil). He was attending the college regularly for third years B.E. Civil. Respondent no.2 is affiliated to respondent no.1 as per the provisions of the Maharashtra Universities Act. The petitioner has contended that he had appeared for the examination in May 2016 and secured 591 marks in aggregate out of 1500 marks. He failed in six subjects. As per the mark-sheet dated 21 st June, 2016 issued by the respondent no.1, the petitioner had obtained 25 marks in online examination and 10 marks in theory and thereby he had ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 3/16 WP-13873-16.doc secured 35 marks in total for the subject Geotechnical Engineering. He was declared fail in the said subject. It is further contended that after perusal of the mark-sheet, the petitioner decided to ask for the photocopies of the answer sheets of the failed subjects. Accordingly, he made an application for obtaining the same. On 12th October, 2016, he received an E-Mail from respondent no.1 stating that the photocopy of the answer sheet for the subject Geotechnical Engineering has been dispatched on 12th October, 2016. It was further informed that the revaluation system for the same will be activated after two days and the last date for filling application for revaluation of answer sheets will be 23rd October, 2016.
4 The petitioner has further claimed that he did not receive the photocopy of the answer sheet. However, he submitted an application for revaluation of the answer sheet of the said subject. The online revaluation results were disclosed by respondent no.1 in which there was change in the marks of two subjects namely Strength of Material and Surveying. However, there was no change of marks in the subject Geotechnical Engineering. The petitioner made another application on 17th November, 2016 and sought photocopies of the revalued ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 4/16 WP-13873-16.doc answer sheets of the subject Geotechnical Engineering. He received the said copy in which the marks shown after revaluation were 13. It is, therefore, contended that the marks were increased from 10 to 13. On 16 th November, 2016, respondent no.1 university issued another mark sheet in which the marks is in respect to the aforesaid subject were shown as 25 for the online examination and 12 for the theory examination and the petitioner was declared "fail" in the said subject. The petitioner contended that there was apparent discrepancy in the mark sheet dated 21st June, 2016, whereinthe marks shown were 10, whereas in the revaluation it was shown to be 13 and in the mark-sheet dated 16th November, 2016, it was shown as 12 marks.
5 The petitioner approached respondent no.1 and informed that he is entitled to get benefit of 13 marks as shown in the revaluation of the answer sheet and is also entitled to the benefit of Ordinance 1. However, respondent no.1 failed to consider the said request. It was contended that on account of the aforesaid discrepancy, the petitioner will not be able to appear to the next semester and he will have to loose one year. ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 :::
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6 The petitioner has prayed that respondent no.1 be
directed to consider 13 marks which were increased after revaluation of the answer sheet for Geotechnical Engineering subject and be directed to grant benefit of Ordinance 1 by allotting two marks in the said subject. In the alternative, it was prayed that respondent no.1 be directed to get the benefit of Ordinance 1 and allow three grace marks for passing Geotechnical Engineering subject. There was also consequential prayers in the petition.
7 Learned counsel for the petitioner submitted that there is apparent discrepancy in the marks allotted to the petitioner which has caused prejudice to the petitioner. He submitted that on account of failure on the part of respondents to evaluate the answer sheet of the petitioner in proper prospective, he was declared "fail" and had to loose one year as a consequence of failure. He submitted that the petitioner is entitled for the benefit of Ordinance 1 which entitles him for grace marks by which the petitioner can be declared as "Pass" in the said subject. It was submitted that as per mark sheet dated 21st June, 2016, the petitioner had secured 10 marks in theory for ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 6/16 WP-13873-16.doc the subject Geotechnical Engineering and after revaluation three marks were increased as he had secured 13 marks which are more than 5% as per the Rule of respondent no.1. He submitted that as per the said Rule, in case the 5% marks are increased in the revaluation, the student is entitled for the benefit of change. Since three marks were increased in the revaluation, which is more than 5%, the petitioner is entitled to get benefit of Ordinance No.1 and thereby benefit of grace marks. He submitted that there are variation in the marks from time to time which create doubt about the manner in which the assessment were carried out by respondent no.1. It was further submitted that the maximum marks for Geotechnical Engineering are 100 and 40 marks are mandatory for passing the subject. The subject heads are on line examination of 50 marks and theory of 50 marks. Out of 50 marks, minimum 15 marks is the criteria. Obtaining 15 marks in online and 15 marks in theory leads to 30 marks together. The student is required to obtain 40 marks out of 100 who declare as pass and, therefore, the present marks are passing head of the said subject. In view of that it was submitted that Ordinance 1 allows three grace marks against passing head of 100 marks and hence considering that the petitioner has secured 12 marks for the said subject, the benefit of three marks ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 7/16 WP-13873-16.doc as per the Ordinance 1 has to be given to him and he should be declared as pass as prayed in the petition.
8 Learned counsel for respondent no.1 submitted that the submissions made by the petitioner's counsel are devoid of merits. He placed reliance upon the affidavit-in-reply and the additional affidavit filed on behalf of respondent no.1. He submitted that the petitioner had appeared for the second year examination in May 2016 wherein he failed in six subjects. Amongst the failed subject, one of the subject was Geotechnical Engineering in which the petitioner got 35 marks including 25 marks in online examination and 10 marks in theory examination, respectively. Mark-sheet of the 2 nd year examination of May 2016 has been annexed to the petition at Exhibit-A. The petitioner submitted an application for photocopy of the answer book. Ordinance 184 (A) and (B) provides procedure for supply of photocopy of assessed answer book and revaluation. As per the said Ordinance, the prescribed application form for demand of photocopy of answer books is required to be filled in and signed by the examinee along with the requisite fees within 10 days from the date of declaration of the result. The Ordinance 184 (A) and (3) (v)(vi) and (vii) provides that upon receipt of the application ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 8/16 WP-13873-16.doc form by the university, the answer books will be scrutinized and verified viz. (i) whether the total marks in the given paper awarded to the examinee on the statement of marks matches with the marks awarded by the examinee on the cover page of the answer book; (ii) or whether the questionwise marks awarded to all the questions instead of answer book are correctly carried out to the cover page; (iii) or whether the total of questionwise marks of the cover page are correct; (iv) or whether all the answers or part thereof in the answer sheet has been assessed by the examiner. If any discrepancy has been found, it has to be corrected by the examiner in the evaluation and if any question has not evaluated, the same can be evaluated from the same examiner and additional marks, if any, can be awarded. It was submitted that after scrutiny of the answer book of the petitioner, it was transpired that the total marks in the paper of subject Geotechnical Engineering awarded to the petitioner did not match with the marks awarded on the cover page of the answer book and that the total of the marks in the said paper was 12 instead of 10. As per Ordinance 184(A), the discrepancy in relation to the counting of marks was corrected and accordingly new statement of marks was issued to the petitioner showing 12 marks in the said subject. The said statements of marks was ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 9/16 WP-13873-16.doc issued to the petitioner which is also annexed to the petition at Exhibit-G. It is, therefore, apparent that there was miscalculation of marks which was corrected as 12 marks instead of 10. Thus, the original marks of the subject Geotechnical Engineering were 12 marks and not 10 marks. It was submitted that the object behind making scrutiny or verification of marks before the revaluation is that if there is mismatch of the marks, the same can be corrected and benefit of the said marks shall be provided to the student. He further submitted that vide Circular No.84 of 2016 dated 9th June, 2016, Clause 3(v) of Part-B of Ordinance 184 (A) (B) was amended and the percentage of increased marks required for getting benefit of revaluation was decreased from 10% to 5%. Thus, as per Clause 1 of the said circular, the benefit of revaluation shall be given to the candidate if the original marks and the marks obtained after revaluation exceed to 5% or more of the maximum marks of the theory paper. The said circular is placed on record. The revaluation of Geotechnical Engineering theory paper was received in which it was stated that the petitioner had secured 13 marks, thus there was increase of only '1' mark which is not 5% of the maximum marks of the said subject. The result of the petitioner was declared as no change. He further submitted that the provisional admission to the next ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 10/16 WP-13873-16.doc higher class is required to be cancelled if the student does not pass the pre examination after verification and revaluation. Therefore, since there is no change in the original result of the petitioner after revaluation, his admission to the third years Engineering stood cancelled. He further submitted that as per Ordinance 1 where head of passing is 15 marks, the exminee is entitled to get two grace marks. The contention of the petitioner that he is entitled to get three grace marks is incorrect. Even if the grace marks are awarded to the petitioner as per Ordinance 1, he would fail in the said subject as original marks of the petitioner in the subject is 12 marks and the requirement of marks for passing in the said case is 15 marks.
9 After hearing the respective counsel and considering the aforesaid submissions, and on perusal of the contents of the petition, the affidavit-in-reply filed by respondent no.1, rejoinder tendered by the petitioner and the additional affidavit filed by respondent no.1, we find that the relief prayed by the petitioner cannot be granted. We have perused the original answer sheet for the subject Geotechnical Engineering which was submitted by the learned counsel for respondent no.1. We noted that there was miscalculation in answer-sheet relating to theory and the same ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 11/16 WP-13873-16.doc was rectified from 10 marks to 12. It is noticed that the petitioner had appeared for the 2nd year of examination in May 2016. Among the failed subjects, one of the subject was Geotechnical Engineering. Initially in the statement of marks which is marked at Exhibit-A to the petition and issued on 23 rd June, 2016, it was stated that the petitioner had secured 25 marks in online examination and 10 marks in theory examination and he was declared as fail. The petitioner submitted an application seeking photocopy of the answer sheet. In accordance with Ordinance 184, upon receipt of the application form by the university, the university is required to scrutinized the answer books for various reasons stipulated therein. One of the aspect which can be scrutinized is to find out whether the total marks in the given paper awarded to the examinee on the statement of marks matches with the marks awarded to the examinee on the cover page of the answer book or whether the total of the question wise marks on the cover page is correct. If any discrepancy found, has to be corrected by the Cell. In the case of the petitioner, it was transpired that the total marks in the paper of subject Geotechnical Engineering awarded to the petitioner did not match with the marks awarded to the cover page of the answer book and the total of the marks was 12 and not 10. In view of the ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 12/16 WP-13873-16.doc said Ordinance, the discrepancy in relation to the counting of marks was corrected and accordingly new statement of marks was issued to the petitioner showing 12 marks in the said subject. The said statement was issued to the petitioner which is also annexed to the petition. Thus, the original marks of the petitioner in the subject Geotechnical Engineering was 12 marks and not 10 marks. We have noted that the petitioner had applied for revaluation of the said answer book and in revaluation, the marks were changed from 12 marks to 13 marks. Thus, there was increase of '1' mark as per the revaluation. It is also considered that since there was increase of only '1' mark which is not 5% of the maximum marks of the said subject, the result of the petitioner was shown as no change.
10 The petitioner has failed in revaluation as there was increase in '1' mark, which does not amount to 5% increase of the head of passing. The petitioner is not entitled to get the benefit of three grace marks as per the Ordinance 1. The interpretation of Ordinance 1 made by the petitioner is incorrect. As per the Ordinance 1, the examinee shall be given benefit of grace marks only for passing in each head of passing i.e. theory /practical/oral/sessional in external or internal examination as per ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 13/16 WP-13873-16.doc the maximum permissible limit prescribed in the Ordinance 1 specifically prescribes separate heads of passing viz. theory, practical, oral, sessional for the purpose of giving the benefit of grace marks and, therefore, this Ordinance benefit of grace marks as per the maximum permissible limit is granted to each head of passing i.e. theory/practical/oral/sessional separately. Thus, as per Ordinance 1, the benefit of grace marks cannot be given by counting the total marks of two heads of passing of any subject. Hence, the petitioner's contention that he should be given benefit of three grace marks by adding the total marks of two heads of passing i.e. online and theory of the subject Geotechnical Engineering is not correct. This is apparent from the clear reading of Ordinance 1. Ordinance 1 reads as under:
"Ordinance 1 : Grace Marks for Passing in each of head of passing (Theory/Practical/Oral/Sessional) (External/Internal) The examinee shall be given the benefit of grace marks only for passing in each head of passing, (Theory / Practical / Oral / Sessional) (External / Internal) in External or Internal examination as follows :
Head of Passing Grace Marks upto Upto-50 2 ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 14/16 WP-13873-16.doc 51-100 3 101-150 4 151-200 5 201-250 6 251-300 7 301-350 8 351-400 9 and 400 & above 10 Provided that benefit of such gracing marks
given in different heads of passing shall not exceed 1% of the aggregate marks in that examination.
Provided further that this gracing isi
concurrent with the rules and guidelines of
professional statutory bodies at the All India level such as AICTE, MCI, Bar Council, CCIM, CCIII, NCTE, UGC etc."
From the aforesaid Ordinance, it is clear that the examinee shall be given the benefit of grace marks only for passing in each head i.e. theory/practical/oral/sessional in external or internal examination. The interpretation of the petitioner is, therefore, devoid of any substance and is contrary to the said Ordinance. The petitioner therefore is not entitled for the benefit of the aforesaid Ordinance.
11 We have considered the fact that as per Circular ::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 ::: rpa 15/16 WP-13873-16.doc No.84 of 2016 dated 9th June, 2016, provisions of Clause 3(v) of Part (B) of Ordinance 184 (A) and (B) was amended and the percentage of increase marks required for getting the benefit of revaluation was decreased from 10% to 5%. As per clause 1 of the circular, the benefit of revaluation can be given to a candidate if the original marks and the marks obtained after revaluation exceed by 5% or more of the maximum marks of the theory paper. After revaluation of the theory paper of the subject Geotechnical Engineering, the petitioner had received 13 marks. As there was increase of only '1' mark which is not 5% of the maximum mark of the said subject, the result of the petitioner was declared as no change. It is also noted that as per Ordinance 1, where the head of passing is up to 15 marks, the examinee is entitled to get upto '2' grace marks. The contentions of the petitioner that he is entitled to get '3' marks is incorrect. Even if '2' grace marks are awarded to the petitioner as per Ordinance 1, the petitioner would fail in the said subject as original marks of the petitioner are 12 marks and the requirement of marks for passing of theory subject is 15 marks.
12 In view of the above, the petitioner is not entitled for any relief as prayed for in the petition and hence the petition deserves to be dismissed.
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13 Hence, we pass the following order:
:: O R D E R ::
i Petition is dismissed.
ii Rule is discharged.
iii No order as to costs.
iv Parties to act on an authenticated copy of this
order.
(PRAKASH D. NAIK, J.) (SHANTANU S. KEMKAR, J.)
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