JUDGMENT
M. Ramachandran, J.
1. The Mahatma Gandhi University had sanctioned a six semester degree course in B.Sc. Industrial Fish and Fisheries and the petitioner had underwent the course, studying in the St. Alberts College, Ernakulam. The 6th semester examination for him had
been held during May, 2002. Excepting the main paper VIII (Aquarium Fisheries) the petitioner has passed all the papers with more than 70% marks, as could be seen from Ext. P1 mark list. For the paper VIII, Ext. P1 mark list dated 25.7.2002 shows that as against the maximum marks of 60, the minimum marks required for a pass was 21, but the petitioner had been awarded a mark of “0”. He is therefore deemed as a failed candidate. This has resulted in the Original Petition being filed.
2. The examinations were held in May, 2002 comprising of papers in main subjects as also subsidiary subjects. Practicals, project work, viva voce and internal assessments were also separately conducted. The practice followed, which is not disputed, is that in the case of main papers a common register number is given to a student for all the semesters. However, in respect of subsidiary subjects, the allotment of number for different semesters varies. The petitioner had been allotted the number of 6013 for the main papers.
3. The averments in the Original Petition show that students who intended to participate in two courses, namely, (1) B.Sc. Industrial Fish and Fisheries and (2) B.Sc. Aquaculture were grouped in one hall at the time of examination. On the relevant date instead of issuing the question paper for the subject “Aquarium Fisheries”, the supervising officer, who was acting as an Invigilator for the University had issued to the petitioner a question paper “Aquaculture Engineering and Hatchery Technology”. The petitioner accepting the question paper had dutifully answered, according to him, to the best of his ability, but unaware that instead of the question paper VIII (Aquarium Fisheries) he had been given a different question paper. We can take his submission at face value, that he was eager to answer all the questions within the prescribed time and had not critically verified the question paper that had been issued to him or noticed the mistake. Though it has come out that in the answer sheet, he had written the name of the examination as “Aquaculture Engineering and Hatchery Technology”, obviously copied from the question paper, he went on dutifully answering.
4. He had come out from the examination hall slightly depressed but was unaware that a wrong question paper had been in fact issued to him. It is not disputed that as a matter of fact the answers given by him had been subjected to valuation and the examiner had awarded 27 out of 60 marks. However, since code numbers are given to the question papers, and as the petitioner was obliged to answer a paper with code No. G.2315, his answer sheet showed that he had answered question paper with code No. 8166 (Aquaculture Engineering and Hatchery Technology). On getting a report, the University had taken a stand that although he appeared for the examination, he had not answered the question paper which was expected of him to answer, namely “Aquarium Fisheries” and his answering the question paper Aquaculture Engineering and Hatchery Technology did not deserve any marks and therefore he was to be awarded only “0” mark. Consequence for the petitioner is that he has to take
supplementary examination on the presumption that he has failed in his first attempt. Though it is not disputed that/he had obtained an average of 70% marks for the remaining subjects he stands to prejudice., This direction for participating, in a supplementary examination in effect cast a stigma on his candidature and he apprehends that his future chances of career development may be adversely affected as the records always would indicate that he is a failed candidate in his first attempt. Some Institutions do not give admission to candidates who have passed in second chance. He has filed this Original Petition, therefore, with a request to direct the University either to conduct a special examination for him or to award him the minimum pass marks, since there was no mistake or omission on his part in partaking the examination and Only thanks to the University and officers deputed by them the mishap had occurred.
5. The Standing Counsel has filed a report on behalf of the second respondent, though strictly viewed it does not satisfy the requirement of a statement or affidavit to be filed by an authority. It is difficult to rely on such statements, as there is nothing positive to indicate that it is the real stand of the respondent or that they are bound by such statement, as it is well settled that a party is not bound by the submission of a counsel, unless specific authorisation is made to make the binding statements. The present report deals with the incident that had happened on the relevant day. B.Se. Industrial Fish & Fisheries and B.Sc. Aquaculture are two different degree courses. Each candidate is expected/supposed to be thorough about the date, time and subject of the examinations notified. “If there was any change in the question paper received, he had to intimate the matter to the supervisor. The supervisor may not be familiar with the concerned subjects of each candidate.” Thereafter, the statement continued referring to the follow up measures taken. Details about the hall arrangement and the supervisor, who attended the examination etc., are proposed to be collected from the Principal of the College for close scrutiny of the examination branch. It is also admitted that the examiner had initially given 27 marks and then awarded “0” mark. According to the counsel, the valuation deserves to be cancelled and was cancelled. The candidate cannot be treated as having participated at all. Therefore, it was natural that he was declared as failed. It is offered that a supplementary chance will be given to the petitioner and he can appear for the examination as and when it is conducted after a notification.
6. The statement, which is presumed to be the stand of the University, even prima facie appears to be uncharitable. The entire blame had been shunted on to the student. Having stampeded on his career, an enquiry to the details of the mix-up has not so far been undertaken. But at the same time, indications are there to indicate that the deficiency had occurred from the part of the examiners. Normally it cannot be expected of a student who is participating in his final year examination to stand up and question about the authenticity of the question paper that had been issued to him. The subjects were more or less similar and cognate and the anxiety that might have been
there for answering the questions within the time prescribed could not be ruled
out. I am not satisfied about the stand of the University, in the matter, and they cannot
so easily get out by washing their hands.
7. In the aforesaid circumstances, the question is as to what relief could be granted to the petitioner, as I am convinced that he should not be subjected to prejudice because of the shortfall from the side of the University.
8. When the stand adopted by the University is that special examination cannot be held so far as an individual candidate is concerned, the alternate possibilities are to be enquired into. The suggestion that he can take up supplementary examination, as and when it is notified, will not be of solace to him as rightly pointed by the senior counsel Sri. K. Sudhakaran. That a bright student, who have scored average of over 70% in the subjects in which he had answered the question paper cannot be deemed logically as a failed candidate: He has shown his class and it is unfortunate that the University does not see eye to eye with his predicaments.
9. The senior counsel brought to my attention a judgment of the Hon’ble Supreme Court of India the observations of which will be a safe, reliable and binding proposition to be followed in these circumstances. Reference as above had been made to the reported case in C. Tulasi Priya v. A.P. State Council of Higher Education, 1998 (6) SCC 284. The appellant in the above appeal had appeared for the common entrance test for admission to the Medical Colleges in the State of Andhra Pradesh. After issuing the papers for her to answer, an Invigilator had come to her to obtain her signature and it was at that time found that an irrelevant answer paper was given to her. The Invigilator after discussions with his colleagues later gave the proper answer paper for her to make her markings. Thus, she had been robbed of a considerable time to answer the papers and it was not possible for her to answer 200 questions within the balance time available. As a consequence, in spite of her hard work it was not possible for her to secure a seat in the medical college. A Division Bench of the High Court dismissed the Writ Petition filed. Special Leave Application had been filed in the aforesaid context. The Supreme Court after considering the circumstances of the case, in paragraph 10 of the judgment, held as following:
“It is unrealistic to expect a young and, no doubt, nervous student in the midst of an important examination to think of submitting written protests there and then. The refusal of the High Court to interfere on this ground has, regrettably, compounded the injustice done to the appellant”.
Making this observation, the Supreme Court further held that to do complete justice, it is necessary to grant the relief that is sought in the Writ Petition. It had been directed that she should be considered for admission to a medical college in the State of Andhra Pradesh upon the basis that she has secured 94.555% marks. This mark was calculated
on the basis of the total questions attempted by her and the marks secured for such attempts.
10. Sri. Sudhakaran submits that a similar treatment has to be given to the petitioner’s case as well, since it is admitted that Sri. B. Kiran, petitioner herein, had answered the question paper that had been supplied to him and he had secured 27 marks. In another case, where the University had fumbled in the matter of awarding of marks, I had to consider in a Writ Petition the claims raised on behalf of a student, who had appeared for the B.Tech. (Electrical and Electronics Engineering) course conducted by the Kerala University. (O.P. No. 25514 of 2002). The student had undergone B.Tech. course during 1997-2001. He had appeared for the 6th semester examination for Electronic Instrumentation and he had been advised that he secured a total of 81 out of 150 marks. The pass mark required is 75. Later on the University told him that there was a mistake in the original mark list as he had secured only 40 marks in the paper on Electronic Instrumentation. Thereupon, the student had been directed to sit for the examination once again. The boy concerned had an intention to go abroad for higher studies and before final publication of results a confidential information had been supplied which showed that he had passed. When the result was published, he was shown as passed and he had, in the meanwhile, proceeded to United States of America and had commenced his studies. But a few weeks thereafter an advise had reached him, intimating that he had failed for the paper. The result published was modified and the University had regretted about the inconvenience caused to the student. The Original Petition had been filed in the above said context for quashing the orders that had been passed to his detriment. After considering the materials that were placed, a direction had been issued that the marks awarded to the student were to be deemed as 81 out of 150, as the University have committed repeated mistakes. I am told at the bar that the decision had been accepted, and the marks so recorded in his mark list.
11. The word education is derived from the word ‘educe’, which means drawing out, something which is latent. Opportunity is thus given to a person to find out his own capabilities, and the ultimate question therefore will be as to see whether the training has helped the student to find out his hidden faculties. Examinations are conducted by a University so as to assess the level of the knowledge and expertise that had been imbibed by a student. The failure in the examination or securing high marks may not always however be a safe index to show whether the candidate had undergone the curriculum satisfactorily or unsatisfactorily. The marks that are awarded are considered as an index, though it may be relative. By answering a question paper, which had been mistakenly given to him, but closely associated with the curriculum that had been prescribed, the petitioner had established that he had comprehensive knowledge about the subject and though had been taken by surprise, nevertheless he had been able to secure a pass mark. In case of a mistake what the University ought
to have done was to give him a chance for a de novo examination, even exclusively to test his knowledge and aptitude. But the University is not prepared to come down, and perhaps have adequate reasons for adopting this stand. Therefore, the possible solution of the issue, according to me, will be to declare that he has passed the examination in Main Paper VIII Aquarium Fisheries. It should be deemed that he had appeared for the subject and had come out successfully.
12. As pointed out by the Supreme Court in 2000 (7) SCC 372, State of M.P. v. Pradeep Kumar, the effort of the Court should not be of finding means to pull down the shutters of adjudicatory jurisdiction, but to see whether it is possible to entertain a citizen’s grievances. The greatest virtue of law is adaptability and flexibility. The Court ought to apply law at least in circumstances like this taking note of factual aspects.
13. As far as I see, courts are not to adopt a doctrinaire or pedantic approach, but is expected to rise to situations, which would supplant justice and carry out the ultimate objectives. As rightly pointed out by Sri. Sudhakaran, awarding of at least grace marks to Sri. B. Kiran will have no impact on any other student in whatever manner, but would only help him to retrieve himself from abysmal depths. To compel him to appear in future examination as a failed candidate would be adding insult to injury. The University is therefore directed to assign marks in favour of the petitioner showing that he has been able to secure 27 out of 60 marks for paper VIII – Aquarium Fisheries in substitution of the mark “0” that has been awarded as at present in Ext. P1. He is to be declared as having passed in the examination. Consequential steps as above are to be taken forthwith.
14. The Original Petition is disposed of as above.