Andhra HC (Pre-Telangana)
N. Sri Ramachandra Murthy vs The Commissioner For Govt. ... on 10 February, 1987
Equivalent citations: AIR1988AP196, AIR 1988 ANDHRA PRADESH 196
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER
1. The petitioner has appeared for the S.S,C. Examination held in April, 1986 as a private candidate. The timings of the said examination were changed to 8.30 a.m. from 11.00 a.m., consequently on the first day of the examination the petitioner went late to the examination hall and missed the first paper of the first language. From the second day he appeared in the said examination in time and answered all the papers. Based on the performance of the petitioner in the said examination of April, 1986,hewasdeclaredtohavepassedinthell division when the result was notified in the news paper. He also received memorandum of marks. Notwithstanding the non- appearance of the petitioner in Paper-1 of Telugu, he secured 36 marks out of 50 which is more than the minimum prescribed for the subject. On the basis of the said memorandum of marks the petitioner took admission in J.K.C. College, Guntur and is studying the Intermediate course.
2. As many students could not appear in time in the said April, 1986 exams., this Court directed the first respondent to conduct re- examination in Telugu (,Paper-1) and accordingly re-examination in Paper-1 of 1st language was conducted. The intimation of the re-examination was received by the petitioner in the afternoon of 6-9-1986 whereas the examination itself was scheduled on that day at 8.30 am. There was no mention of the centre in the said intimation. On 9-9-1986 he received another intimation of the re- exammation as there was change in the timings specifying the centre and the time. By the time he received the second intimation, the re-examination was already over. Immdiately thereafter, the petitioner submitted a representation to the respondents.
3. By the impugned proceedings No. 59/D5-1/87 dt. 7-1-1987 the first respondent wrote to respondent No. 2 that the petitioner who appeared for the S.S.C. Public Examination held in March (April), 1986 with Roll, No. 570037 failed in the S. S.C. Examination on account of his non-appearing in the examination of first paper of first language. He also sent a Telegram to the effect that the petitioner is not eligible to study Intermediate course for the same reason. These orders are assailed in this writ petition.
4. The respondents filed counter-affidavit stating that the S.S.C. Examinations for private candidates are being conducted by the Board pursuant to the Scheme issued by the Government in G.O. Ms. No. 63, Education (W-2) Department dt. 16th Jan., 1969 (hereinafter referred to as 'the rules'). Under R. 16(1) of the Scheme pupils appearing for the public examination for the first tune should appear for all the subjects prescribed for the public examination for the course. As the petitioner has not appeared for the first language first paper on 19-3-1986, in Memo No. 59/D5-1/86 dt. 16-8-1986 he was directed to appear in the re-examination to be held on 30-8-1986 at 8.30 a.m. He was informed therein,' should he fail to appear in the re- examination, the performance of his whole examination will be cancelled. This memo was returned unserved. By subsequent Memo No. 59/D-5-1186 dt. 29-8-1986 he was informed that the re-examination of the first paper of the first language will be held on 6-9-1986 at 8.30 a.m. and failure to appear in the examination would entail cancellation of whole examination He was also asked to send S.S.C. certificate for entering the re- examination marks in the first language. The Head Master was also informed to collect the S.S.C. certificate from the candidate and send the same. It is further submitted that by not appearing in the re-examination the petitioner has violated R. 16(1) of the Scheme, which is mandatory. The petitioner has signed the declaration that he will appear for all the papers in the examination prescribed for study as laid down in the scheme. The performance of the petitioner at the S.S.C. Examination was sought to be cancelled for his failure to appear for the re-examination on 6-9-1986 despite wide publicity given over Radio, Doordarshan and individual intimation. The respondents issued Memo No. 59/D5-1/86 dt. 26-9-1986 calling upon the petitioner to submit his explanation as to why his performance should not be cancelled as he did not avail the opportunity of re- examination. No explanation was offered by the petitioner. It is contended that for non- delivery of the said memos to the petitioner, the respondents are not responsible. In the circumstances they prayed that the writ petition be dismissed.
5. The learned counsel for the petitioner relying upon the word 'subject' in R. 16(1) contends that in the subject of the first language the petitioner did appear and secured more than minimum pass marks. Therefore, there is no violation of the rule. He relied upon the decision of a Division Bench of the Rajasthan High Court in Raj Kumar Sharrna v. University of Rajasthan, , holding that the words 'in each subject' cannot be interpreted to mean 'in each -paper.'
6. The learned counsel for the petitioner alternatively submits that even if there is no compliance of the said rule, neither Rule 4 nor R. 16(1), relied upon by the respondents,; authorises cancellation of performance of the petitioner for non-appearance in any one of the papers. Under the scheme of the examination minimum passing marks are prescribed for each subject and not for each paper. The petitioner having secured more than minimum marks in one paper, has passed in every subject and secured second class marks in total and accordingly respondents 1 and 3 rightly issued pass certificate to him, therefore, the action of the respondents in treating the petitioner as failed for the reason of nonappearance in the re-examination or cancellation of his performance in the whole examination is illegal and beyond their jurisdiction. He further submitted that having issued the pass certificate, on the basis of which the petitioner has secured admission in the first year Intermediate invested money and spent about a precious year of his life in prosecuting the studies, thus altered his position to his prejudice, the respondents are estopped for contending that the petitioner has failed in the S.S.C. Examination for-the only reason of not appearing in Paper-1 of Telugu.
7. I find considerable force in the submissions of the learned counsel for the petitioner. R. 16(1) of the Scheme of S.S.C. Examination for the private candidates will usefully be extracted' here :
'16. Subjects taken at Examination. (1) Pupils appearing for the public examination for the first time should appear for all the subjects prescribed for the public examination for the course."
From a perusal of the Scheme of the examination particularly R. 16(1), it is evident that the emphasis is on appearing in all the subjects and not in all the papers of each subject. It would be apposite to read the rule relating to declaration of results known as Rules of Eligibility for Academic Course which are in the following terms:
'1. Candidate who secure not less than 35% marks in each of the subjects i.e., First Language, Third Language (English) Mathematics, General Science and Social Studies and 20% in Second Language are declared to have passed the Examination.
2. Candidates who pass the examination securing 60% and above marks i.e., 360 and above marks on the aggregate are awarded First Division. Candidates securing 50% to 59% marks i.e., 300, 359 marks on the aggregate are awarded second division The other eligible candidates are awarded Pass Division.' From these rules also it is clear that the emphasis is on the subject and not on the papers of a subject. The minimum marks are prescribed for each of the subjects and not for each of the papers of the subjects. When a candidate who spc4res "zero' in one paper and ',35' in the other paper, is eligible for declaration of his results, it is difficult to understand how he will become ineligible if he does not appear in any one paper but secures more than the minimum in the subject. To secure the pass certificate what all prescribed is, securing a minimum of 35% marks in each of the subjects, i.e., First Language, Third Language (English), Mathematics, General Science and Social Studies and 20% marks in Second Language. Once a candidate secures the prescribed .Minimum in each subject as mentioned above, the authorities are bound to declare his result and Division depending upon the aggregate marks and he cannot be denied the fruits of his performance in the examination on the extraneous ground of not appearing in any of the papers of a subject.
8. Here the relevant portion of the certificate may also be noticed.
'The candidate secured the following percentage of marks."
(See Table Below) In this also marks are noted subjectwise and not paperwise. In my opinion it is impossible to read in Rule 16(1) 'all the subjects' as all the papers of the subjects'.
9. Rule 16(1) of the Scheme of S.S.C. Examination for the private candidates no doubt provide that the candidates should appear for all the subjects but it does not provide either for cancellation of the performance of the candidates in the whole examination or for conversion of result of the candidates from 'Pass' to 'Fail' in case of violation of the said rule. Both these courses adopted by the respondent are of very grave consequences as they deprive the candidates of their vested right as such in the absence of a statutory provision they cannot be inferred readily as following from the violation of a now statutory rule.
10. The learned Government Pleader relying upon Instruction No. 4, submits that in the, Instructions to the students as well as in the declaration given by the petitioner, he has undertaken to appear for all the papers, as such his non-appearance entails cancellation of results and declaring him as having failed and cancellation of the certificate issued. ' This submission is devoid of substance.
FIRST MARKS THIRD LANG. LANG. MARKS MATHEMATICS MARKS TELUGU ENGLISH GENERAL SOCIAL MATHEMATICS SCIENCE STUDIES TOTAL (IN FIG.) TOTAL (IN WORDS) SECOND LANGUAGE (HINDI)
11. First of all declaration itself does not contain that the, non-appearance of the candidate in any one of the papers would entail the cancellation of his performance in the whole examination; secondly the declaration of a minor boy, as fairly conceded by the learned Government Pleader does not bind him and lastly there being no rule empowering the authorities to cancel the performance, the cancellation of performance which is a drastic penal action, cannot be easily inferred. These provisions are recommendatory In the interest of the students themselves to enable them to secure the minimum and they cannot be put against them The respondents, therefore, can neither purport to cancel the performance of the petitioner nor treat him as having failed.
12. In the view I have taken it is not necessary to deal with the second submission of the learned counsel that the respondents are barred from declaring the petitioner as having failed by virtue of the principle of estoppel.
13. For the above said reason the impugned order it quashed. The writ petition is allowed with costs. Advocate's fee Rs.250/-
14. Petition allowed.