R.H.Zaidi, J. - (1.) BY means of this petition under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of mandamus commanding the respondents to declare Ills result of M.A. (previous) Philosophy examination for the year 1995 after giving average mark in third paper of the said examination and permit him to appear in the examination of M.A. (final) provisionally.
(2.) THE facts giving rise to the present case, in brief, are that the petitioner appeared in M. A. (previous) philosophy examination for the year 1995 from Nari Shlksha Niketan Inter College. Kaisar Bagh, Lucknow, after submission of the Examination Form to the Vidyan Hindu Degree College, Lucknow, a college affiliated to the Kanpur University. Kanpur and allotment of Roll No. 42624. in all the papers of the said subject, i.e., philosophy. THE result of the said examination was declared in which the petitioner was declared to have failed. Since the marksheet was not supplied to him he applied for a copy of the mark sheet. On receipt of the marksheet, he came to know that in third paper of M.A. (PRF) (Philosophy) he was awarded zero mark. THErefore, he applied for re-evaluation of the answer book of the said paper. On the application filed by the petitioner, it was reported that the answer book was not received from the Examiner in the University, therefore, there was no question of re-evaluation. Petitioner, thereafter filed the present petition for the above mentioned reliefs. I have heard learned counsel for the petitioner and learned standing counsel. Learned counsel appearing for the petitioner has vehemently submitted that in view of the fact the answer book of the petitioner of M. A. (previous) third paper (Philosophy) was lost by respondents, the respondents ought to have given the petitioner average marks. It was not open to them to award zero mark to the petitioner in the said paper and to declare him to have failed in the said examination.
(3.) ON the other hand, learned counsel for the respondents submitted that matter regarding loss of answer book was under investigation and in case the answer book is found to have been lost on the ground of mistake or negligence of the University authorities, the petitioner shall be given an opportunity to appear in the said paper, in which he was given zero mark. In the counter-affidavit, it has specifically been admitted that the petitioner has appeared in all papers of the said examination. After declaration of the result, more than one year has already elapsed. This Court vide order dated 18.7.96 directed the respondents to produce the answer book of the said paper bearing Roll No. 42624 of M. A. previous Examination for the year 1995 (Philosophy) third paper and directed the case to be listed positively on 26.7.96. Inspite of the said order, the answer book in question was not produced. Under the facts and circumstances stated above, I have got no hesitation In coming to the conclusion that the answer book of the petitioner has been lost, while the same was In possession and custody of the respondents. The petitioner, therefore, cannot be penalised for the mistake and fault committed by the respondents.;