- (1.) RAJEEV Gupta, C. J. Appellant Uttaranchal Shiksha Evam Pariksha Parishad has filed this special appeal against the impugned judgment dated 17-8-2004 passed in Writ Petition No. 252 of 2004 (M/s ).
(2.) RESPONDENT Yogesh Kumar filed the writ petition for the following reliefs : "a. Issue a writ, order or direction commanding the respondents to produce the records of answer book of Chemistry II paper of petitioner before this Hon'ble Court. b. Issue a writ, order or direction the respondents to value the an swer book of Chemistry II paper of petitioner and in case the pe titioner obtained the passing marks in Chemistry II paper then he will be declared pass in Inter mediate Examination 2003. c. Issue any other suitable order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case. d. Award costs of the petition. " In the writ petition, the petition er's case was that he appeared in the Intermediate Examination, 2003. When the results for the said examination were declared, the petitioner came to know through internet that he was de clared failed on account of being absent in the Second Paper of Chemistry. On the communication from the Principal of the petitioner's college that the peti tioner did appear in the Second Paper of Chemistry which was held on 29-04-2003, the appellant Parishad corrected the mistake and issued another mark sheet dated 18-09-2003 showing that the petitioner secured '00' in the Sec ond Paper of Chemistry and not 'aa' as was shown earlier. The petitioner, har bouring under an impression that his answer sheets have not been properly evaluated, filed the writ petition for the above-mentioned reliefs. The appellant Parishad in their counter affidavit admitted the mistake in showing the petitioner absent in the Second Paper of Chemistry. It was their specific case that the petitioner did not secure any marks in the Second Paper of Chemistry and as such, in the col umn of Marks Obtained '00' was shown.
(3.) DURING the course of hearing be fore the learned Single Judge, a pho tocopy of the petitioner's answer sheet for the Second Paper of Chemistry was made available. It further transpires from the record that an expert of the subject i. e. Chemistry was asked to evaluate the petitioner's above answer sheet and the said expert awarded only '01' mark. The learned Single Judge, placing reliance on the Division Bench decisions of Allahabad High Court in the cases of Saurabh Kumar Gupta Vs. State of U. P and others and Kumari Renu Sharma Vs. Madhyamik Shiksha Parishad and another, directed the appel lant Parishad to award marks to the petitioner in the Second Paper of Chemistry on the basis of 'average Marking'. It is this direction in the im pugned judgment, which has led to the filing of the present special appeal at the behest of the appellant Parishad. The appellant's challenge to the impugned judgment is based on the fol lowing three-fold submissions : i. There is no provision for revalua tion in the Regulations under U. P Intermediate Education Act, 1921; ii. The petitioner's case is not cov ered by the Circular providing for 'average Marking', as the said provision is applicable only in those cases where the answer sheets are not available for evaluation either on account of having been lost in the transit or for any other reason; iii. Petitioner, in his writ petition, did not make any prayer for grant of marks on the basis of 'average Marking';