Court No. - 19
Case :- WRIT - C No. - 33852 of 2018 Petitioner :- Ayush Dwivedi And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Santosh Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Manoj Kumar Gupta,J.
The petitioners have filed the instant writ petition praying for a mandamus commanding respondent no.2, Secretary, Examination Regulatory Authority, Allahabad to award marks to the petitioners in various subjects of third semester examination in which marks had not been awarded, as the answer books are not traceable. The petitioners have also prayed for a writ of mandamus commanding the respondents to permit them to appear in the fourth semester examination.
Petitioner no.1 was issued a mark sheet by respondent no.2 in which marks have not been awarded in Hindi and Social Studies and likewise in case of petitioner no.2, marks have not been awarded in Computer Education and in case of petitioner no.3 in Computer Education, Mathematics, Sanskrit and Physical Education. According to the petitioners, they had duly appeared in the aforesaid papers and thus, they were entitled to marks being awarded to them in these papers as well.
On 24.10.2018, respondent no.2 was directed to file counter affidavit by the next date.
Learned standing counsel, on matter being taken up, states that on account of some personal difficulty on part of respondent no.2, a formal counter affidavit could not be filed. However, he has received instructions from respondent no.2 and he has placed the same on record. According to the instructions, the answer books of the petitioners in the subjects referred to above are not traceable. Accordingly, respondent no.2 in his instructions has mentioned as follows:-
“5- ;kfpdk ds izLrj 10 ,oa 11 ds lEcU/k esa dguk gS fd ;kphx.kksa ds ijh{kk dsUnz ,oa ewY;kadu dsUnz ls izkIr vk[;k ds vk/kkj ij] ;kphx.kksa dk izdj.k ijh{kk fu;ked izkf/kdkjh dh ijh{kk lfefr ds vkxkeh cSBd esa izLrqr dj vuqiyC/k mRrj iqfLrdkvksa ds lanfHkZr fo"k;ksa ij vkSlr vad iznku djrs gq, ;kphx.k dk ijh{kkQy iw.kZ djus dh dk;Zokgh lEikfnr djk;h tk;sxhA izfroknh }kjk fdlh Hkh :i ls vuPNsn 226 dk mYya?
ku ugha fd;k x;k gSA”
From the stand taken by respondent no.2 before this Court, it is clear that the petitioners would be awarded average marks in subjects in which answer books are not traceable. On a prima facie perusal of the mark sheets annexed with the writ petition, it transpires that the petitioners have received fairly goods marks in other subjects and thus, in case average marks are awarded to them in remaining papers, they would, in all likelihood, pass the examination. However, as per instructions furnished by respondent no.2, it would take some time before the mark sheet is issued to the petitioners awarding them average marks in subjects in which answer books are not traceable. On the other hand, the examination of the fourth semester is to commence from 1.11.2018, as admitted by counsel for the parties.
In the opinion of the Court, the petitioner cannot be made to suffer on account of fault of the respondents; firstly, in not ensuring proper custody of the answer books, resulting the same being lost and secondly, on account of delay on their part in taking decision to award average marks and in issuing a fresh mark sheet.
Accordingly, the writ petition is disposed of by directing respondent no.2 to permit the petitioners to appear in the fourth semester examination, which is to commence from 1.11.2018, provisionally. It is further provided that if as a result of petitioners being given average marks in the remaining papers, they pass the third semester examination, their result of fourth semester examination would be declared. However, in case any of the petitioners remains unsuccessful in the third semester examination, he would be precluded from claiming any equity for having appeared in the fourth semester examination and it shall be open to respondent no.2 to take appropriate decision in regard thereto in accordance with law.
The writ petition stands disposed of accordingly.
The benefit of this order shall be made available to the petitioners only if a certified copy of this order is filed before respondent no.2 by tomorrow.
Office is directed to supply a certified copy of this order to learned counsel for the petitioners on payment of usual charges today itself.
(Manoj Kumar Gupta, J) Order Date :- 30.10.2018 SL