Viraf Noshir Bilimoria v. University Of Mumbai .

1. This petition under Article 226 raises question as to the scope and effect of clause 8 of the ordinance 237-a of mumbai university relating to revaluation of answer-books at the University examination. Briefly the facts giving rise to this petition are as follows:

The petitioner is presently studying in the Senior LL.M course, Group IX i.e the subjects of Environmental Law in the Department of Law, Mumbai University. In the Junior LL.M course, he was a student studying for Group VIII i.e the subjects of Law of Crimes in the year 1994–95. The examination for Junior L.L.M was held in May, 1995 for the academic year 1994–95. Group VIII in the said examination is known as Criminal Law Group as all the three papers have their base in the study of crimes viz.: (i) Paper I — Criminal Jurisprudence-Origin, (ii) Paper II — Criminology — The Science of Crimes and (iii) Paper III — Indian Penal Code, 1860. In the said course, a student has to obtain a minimum of 45 marks in each of the three papers, but the total of the marks in the three subjects should not be less than 150, i.e 50% each paper carrying 100 marks. Where the results were declared on 16th August, 1995, the petitioner was declared “Failed”. According to the result-sheet, he has secured 34 marks in Paper II, i.e Criminology. In Paper I — Criminal Jurisprudence-Origin, the petitioner secured 58 marks and in Paper III — Indian Penal Code, he secured 45 marks.

The petitioner applied to the University for revaluation of marks in Paper II, viz. Criminology — The Science of Crimes. It appears that the petitioner's answer paper in the said subject was verified by the University authorities and it was found that there was mistake in calculation and that the petitioner has actually secured 36 marks instead of 34 marks as originally declared. In view of this, the petitioner was asked to surrender the mark-sheet and it was returned to the petitioner after correcting the marks of Paper II.

After the verification, the petitioner's answer paper in Paper II was revalued by the fresh examiners' Committee as provided by Ordinance 237-A. In the revaluation, the petitioner secured 45 marks. The University, however, refused to give effect to the increase of marks in the revaluation on the ground that the difference after the revaluation is less than 10% of the maximum number of marks allotted to the question paper and as such the increase is liable to be ignored. According to the University, the increase of 2 marks in the verification process could not be taken into consideration for the purpose of revaluation and since in the revaluation, the increase was less than 10%, the result of the petitioner could not be altered in view of clause (8) of Ordinance 237-A. Aggrieved by the decision of the University, the petitioner has filed the present petition.

2. The question, which falls for my consideration, is whether the University is right in ignoring the addition of two marks in the verification process for the purpose of clause (8) of Ordinance 237-A. If the increase of two marks in verification is added to 9 marks, which the petitioner secured in revaluation, then the increase will be of 11 marks and, therefore, of more than 10% and in that event, the petitioner will be entitled to the benefit of the increase of marks in the revaluation. On the other hand, if the marks added in the verification process are to be ignored for the purpose of computation of 10% of the marks, naturally the increase in revaluation being only of 9 marks, will have to be ignored.

3. Ordinance 237-A made by the University provides for revaluation of answer-books in respect of theory papers at an examination conducted by the University, other than the Post-Graduate examinations in the faculties of Medicine and Dentistry, subject to the conditions and procedures laid down in the said Ordinance. Clause (6) of the Ordinance reads as follows:—

“(6) The revaluation of answer-books shall also include verification of marks obtained by a candidate in a theory paper or papers for which the revaluation is sought. If, on verification of marks, it is found that the marks originally shown in the certificate of marks issued to a candidate are revised as a result of verification, the revised marks shall be considered for the purpose of revaluation, provided however, that after verification the candidate continues to be eligible to apply for revaluation.

Then clause (8), which is material for our purposes, reads as follows:—

“(8) The marks obtained after revaluation shall be accepted by the University if the marks assigned to a paper as a result of revaluation, exceed or recede the marks originally obtained by the candidate in the paper without any grace and with corrections, if any, made during the process of verification, by ten percent or more of the maximum marks assigned to that paper, in which case the marks originally obtained by the candidate in the paper shall be treated as null and void. For the purpose of computing the ten percent difference in marks, fractions shall be ignored.”

4. On a plain reading of clause (6), it is seen that the revaluation of answer-books includes verification of marks obtained by a candidate. The said clause also specifically provides that even if the marks are revised as a result of verification, the candidate will not become ineligible for revaluation and the revised marks shall be considered for the purpose of revaluation, provided after verification, the candidate continues to be eligible to apply for revaluation. In other words, the process of verification is treated as part of revaluation. Coming then to clause (8), it is seen that the difference of 10% contemplated by the said clause is between the marks originally obtained by the candidate and the marks after the revaluation. Therefore, for the purposes of computation of difference of 10% marks, the increase or decrease of marks in the verification process is also liable to be considered and if such increase or decrease is of 10% or more, then the marks originally obtained by the candidate in the answer-book are liable to be treated as null and void and the marks awarded in revaluation shall be treated as correct marks. This is the true interpretation of clause (8) of the Ordinance.

5. Coming then to the facts of the present case, we have already noted that the petitioner originally secured 34 marks. Thereafter in verification process, marks were increased to 36 and then in revaluation, the marks were increased to 45. The difference between the marks originally obtained by the petitioner and the marks as per the revaluation is 11 marks i.e more than 10%. The marks originally obtained by the petitioner are, therefore, required to be treated as null and void as per clause (8) of the Ordinance. In my opinion, the University authorities were clearly wrong in not giving effect to the increase in the marks in the process of revaluation. It is, therefore, necessary to direct the University authorities to give effect to the increase in the marks in the answer-book of the petitioner in Paper II and make correction in the mark-sheet accordingly.

6. Even though I have come to the conclusion that the petitioner is entitled to 45 marks in Paper II, the petitioner cannot be declared “Passed”, as his total marks in the three papers is 148 as against minimum of 150. It is contended by the petitioner that in these circumstances, he is entitled to grace marks and in fact such grace marks are given to similarly situated candidates where there is a marginal shortfall in the aggregate marks. Mr. Rodrigues for the University fairly conceded that the benefit of grace marks was given to similarly situated candidates. However, he points out that the Subjects Committee, which was formed by the Academic Council for the purpose of considering the benefit of gracing, has been dissolved. Mr. Rodrigues states that the University is willing to place the petitioner's matter before the Academic Council for considering his prayer for grace marks.

7. In view of the foregoing discussion, the following order is passed:—

University of Mumbai is directed to give effect to the increase of marks in answer-books of the petitioner in Paper-II and make necessary correction in the petitioner's mark-sheet. After making such a correction, the respondent is directed to place the petitioner's matter in the next meeting of the Academic Council for considering the petitioner's prayer for gracing.

8. I am sure that the Academic Council will consider the petitioner's case sympathetically and particularly in the light of the fact that the difference is of only 2 marks and similar benefit has been given to the other candidates.

9. Writ petition is disposed of accordingly. No order as to costs.

10. University to act on an ordinary copy of this order duly authenticated by the Associate of this Court.

Order accordingly.