Bombay High Court
Shri. Akshay Sureshkumar ... vs The Savitribai Phule Pune ... on 7 March, 2017
Bench: Shantanu S. Kemkar
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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.
::: Uploaded on - 07/03/2017 ::: Downloaded on - 09/03/2017 00:58:37 :::
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.)
