Bombay High Court
Shri Anup Prakash Vyas vs University Of Pune on 8 February, 2013
Equivalent citations: AIR 2013 (NOC) 184 (BOM.), 2013 (2) ABR 695, (2013) 2 MAH LJ 630, (2013) 3 ALLMR 319 (BOM), (2013) 2 ESC 755, (2013) 2 BOM CR 608
Author: S.J. Vazifdar
Bench: S.J. Vazifdar, Mridula Bhatkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11318 OF 2012
Shri Anup Prakash Vyas
Age 28 years, occupation Student,
Resident of Flat No.27, 4th floor,
Suvidha Apartment, Kolhe Mala,
Near Hotel Poonam,
Narayangaon, Taluka Junnar,
District Pune ....Petitioner
..Versus..
1) University of Pune,
Ganesh Khind,
Pune - 411 007.
2) The Controller of Examinations,
Ganesh Khind,
Pune - 411 007. ...Respondents
Mr.C.M. Kothari for the Petitioner.
Mr.Girish Kulkarni i/b Ms.Minakshi G. Kulkarni for the Respondents.
CORAM : S.J. VAZIFDAR &
MRS.MRIDULA BHATKAR, JJ.
DATE : 8TH FEBRUARY, 2013.
JUDGMENT (PER S.J. VAZIFDAR, J.) :-
1. Rule. Rule is made returnable forthwith. With the consent of the parties, the writ petition is heard finally.
2. The petitioner seeks a declaration that he has passed his 1/9 ::: Downloaded on - 09/06/2013 19:38:33 ::: wp11318-12 final examination in Bachelor of Architecture five years course commencing from the academic year 2003-2004 of the Pune University - Respondent No.1. Respondent No.2 is the Controller of Examinations, Pune.
3. The petitioner passed the first, second and third year examinations of the said course. He was however, declared as having failed in the second phase of the course i.e. fourth year and fifth year in the examinations held in October, 2011.
4. The criteria for passing is as under :-
"Rule No.8 : CRITERIA FOR PASSING To pass the F.Y./S.Y./T.Y./Fourth Year/ B.Arch. Examination a candidate must obtain minimum 45% marks in each paper / sessional / Viva- voce and 50% in aggregate."
5. The petitioner's mark-sheet annexed as Exhibit-C to the petition is admitted. The petitioner admittedly obtained more than 45% marks in each paper. His aggregate marks for the fifth year are more than 50%. The dispute is regarding his aggregate marks for the fourth year. The marks for all the papers of fourth year is 1300. 50% thereof is 650. The petitioner obtained 648 marks i.e. 49.846% in the aggregate. The question is whether the petitioner is entitled to have the same rounded off to 50%.
6. Mr.Kulkarni, the learned counsel appearing on behalf of the respondents submitted that the rules do not entitle marks being 2/9 ::: Downloaded on - 09/06/2013 19:38:33 ::: wp11318-12 rounded off. He submitted that Rule 8 stipulates the requirement of 50% in the aggregate as the criteria for passing and nothing less than that would suffice.
7. The petitioner's case is supported by various authorities including a judgment of the Supreme Court and a judgment of a Division Bench of this court.
8. In State of U.P. and another vs. Pawan Kumar Tiwari and Ors. (2005) 2 SCC 10, the U.P. State Public Service Commission advertised ninety three posts of Civil Judge (Junior Division). Certain posts were reserved in accordance with the relevant laws. The controversy pertained to the application of percentage as against the total number of posts. The percentage of reservation as applicable and as were actually applied were set out in a table. Under the general category, the percentage prescribed was 50%, whereas the percentage of the candidates appointed in that category was 46.50% and forty six posts were reserved. The respondent who belonged to the general category was the first in the waiting list, having been denied an appointment. His petition for a writ of mandamus was allowed by the High Court, inter-alia on the ground that the figure of 46.5% ought to have been rounded off to 47% and not 46%.
Upholding the judgment of the High Court, the Supreme Court held as under :-
3/9 ::: Downloaded on - 09/06/2013 19:38:33 :::wp11318-12 "7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is : if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment."
9. Mr.Kulkarni submitted that the judgment related only to reservation in employment and the principle cannot be extended to other cases.
10. We are unable to agree with Mr.Kulkarni's submission that the ratio of this judgment ought to be restricted only to cases of employment. The ratio of this judgment would apply to the present case. There is nothing in the judgment that warrants restricting it to cases of employment. The rule of rounding off was held to be based on logic and common sense. We do not read the observations as being limited to any particular kind of case. Rounding off therefore, is a rule in the absence of anything to the contrary. If the rules or other provisions specifically provide otherwise, it would be a different matter. In the absence of such a provision, the rule of rounding off must be applied.
11(i). In Kamal / daughter of Hiralal Dhurve vs. State of Maharashtra & Ors. (Writ Petition No.4350 of 2010), a Division Bench 4/9 ::: Downloaded on - 09/06/2013 19:38:33 ::: wp11318-12 of this Court by a judgment dated 14.03.2011, considered a case where respondent No.3 - Maharashtra Knowledge Corporation Limited held the petitioner ineligible for admission to the B.Ed.
course. The eligibility criteria for admission to the course was 45% marks in the qualifying examination. The petitioner had scored 44.50% marks in the qualifying examination. The Division Bench after referring to the judgment of the Supreme Court in the State of U.P. and another vs. Pawan Kumar Tiwari and Ors. (2005) 2 SCC 10, held as under :-
"5. Having heard the contentions canvassed by learned counsel for the parties and on perusal of the decision cited by learned counsel for the petitioner, percentage of marks i.e. 44.5 scored by the petitioner in M.A. (Marathi) examination be treated to be 45%. Petitioner was already admitted in B.Ed. course for the academic session 2010-11 by virtue of interim order of this Court and, therefore, we direct respondent no.4 University to regularise the admission of the petitioner."
12. The judgment is applicable to the present case. It is important to note that the Division Bench applied the ratio of the judgment of the Supreme Court, which was in respect of recruitment to the case before it, which involved admission to an academic course.
13. Faced with this Mr.Kulkarni submitted that the rule of rounding off ought to be limited only to the case of employment and admissions to academic courses. Here again, he was unable to 5/9 ::: Downloaded on - 09/06/2013 19:38:33 ::: wp11318-12 indicate any reason why the rule ought to be so restricted.
14. The rule of rounding off recognized by the Supreme Court and by the Division Bench of this Court in the above cases applies equally to cases such as these.
15. In Raj Deep Singh v. State of Punjab & Ors. (1996) 114 PLR 430, a Division Bench of the Punjab & Haryana High Court held as under :-
"There is no gainsaying the fact that it has come to be well established principle of counting marks for the purpose of eligibility in the examination or for admission that if the mark secured in the percentage is half or more, it is rounded off and taken as one mark. If it is less the half mark, it has to be rounded off to the lower figure. Marks" in points are only relevant where the admission is to be given on the merit inter so between the students. For the purpose of eligibility they are required to be rounded off. This mechanism of rounding off is not in serious dispute on behalf of the counsel for the State. Since by rounding off, the petitioner does secure 100 marks out of 200 marks, which makes the petitioner eligible for admission, the denial of admission cannot be sustained." (emphasis supplied) In the above judgment, it is specifically stated that this principle applies also to the eligibility in examinations or for admissions. We agree.
16. In Dharmendra Kumar Shrivastava vs. Jiwaji University, Gwalior, 2002(2) MPHT 303, a learned single Judge of the Madhya Pradesh High Court considered a case where the petitioner's claim for admission to the course of Bachelor of Pharmacy was rejected on 6/9 ::: Downloaded on - 09/06/2013 19:38:33 ::: wp11318-12 the ground that he had not obtained 50% marks in the 10 + 2 examination. He had obtained 49.77% marks. As per a Bulletin cum Prospectus, the minimum qualification was Higher Secondary with 50% marks. The question for consideration therefore, was whether the petitioner's aggregate of 49.77% marks could be treated to be 50%. Referring to the judgment of the Supreme Court in State of U.P. and another vs. Pawan Kumar Tiwari and Ors. (2005) 2 SCC 10, the learned Judge held as under :-
"12.
In the instant case there is additional factor in favour of the petitioner which is that he is having higher qualification of B.Sc. in which he is having 53.99% marks and his 49.7% marks of Higher Secondary have to be rounded off as 50% for finding out his effective percentage. Rules in question does not debar rounding off of the figure. It is also not prescribed that any fraction more than half has to be ignored. Thus in my opinion, the petitioner has been wrongfully deprived of admission in Bachelor of Pharmacy course by the respondent - University".
17. We are in respectful agreement with the judgment. Even in the case before us, Rule 8 does not prescribe that a fraction is to be ignored. We see no reason to restrict the ratio to cases involving admissions. The concept is one of rounding off. Mr.Kulkarni was unable to furnish any reasons for restricting the concept of rounding off only to cases involving admissions and employment. We see no basis for such a distinction in the concept of rounding off of marks.
18. Mr.Kothari's reliance upon Ordinance 4 is also well 7/9 ::: Downloaded on - 09/06/2013 19:38:33 ::: wp11318-12 founded. Ordinance 4 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 or 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 asterik 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."
19. Mr.Kulkarni submitted that Ordinance 4 does not relate to aggregate marks and applies only to individual subjects.
20. The submission is not well founded. It is important to note that the first sentence uses the word "head of passing" and not the term "subject". Thus while a subject falls within the ambit of the words "head of passing", the words "head of passing" are not restricted to and do not refer only to a "subject" This is clear from the second sentence which deals with the restriction regarding the maximum number of marks for condonation to "one head of passing"
or "aggregate head of passing". Thus aggregate marks also fall 8/9 ::: Downloaded on - 09/06/2013 19:38:33 ::: wp11318-12 within the ambit of the words "head of passing".
Whether the petitioner's case falls within the first sentence or second sentence or under both the sentences, makes no difference. The petitioner requires only two marks out of 650 i.e. 0.154% for the benefit of Ordinance 4. This, he would be entitled to under Ordinance 4 in any case.
It was not suggested that the proviso to Ordinance 4 applies in the present case.
21. In the circumstance, rule is made absolute in terms of prayer (a). The respondents are directed to make necessary endorsement in the petitioner's mark-sheet. The order is stayed upto 31.03.2013.
There shall be no order as to cost.
(MRS.MRIDULA BHATKAR, J.) (S.J. VAZIFDAR, J.) 9/9 ::: Downloaded on - 09/06/2013 19:38:33 :::