S.N.Srivastava - (1.) -By way of this petition, the petitioner has sought the relief of a writ of mandamus commanding the respondents to decide her representation dated 15.9.2005 (Annexure-10 to the writ petition) attended with further prayer to produce copy of Answer scripts of the petitioner in M.B.A. Final 4th Semester of Business Taxation and Tax Planning followed by the prayer to quash the result declared by opposite party No. 1 in the case of petitioner in the M.B.A. Final II Semester Examination, 2005 vide mark-sheet dated 9.9.2005 in the paper Business Taxation and Tax Planning as being illegal and unsustainable in law and also seeking further relief of declaring the petitioner as having passed M.B.A. Final Examination in the Paper Business Taxation and Tax Planning with such marks as may be deemed just and appropriate and after re-examination by any competent authority, pass suitable orders.
(2.) THE factual matrix runs as under. THE petitioner namely Mollika Banerjee after completing her High School, Intermediate and Graduation with excellence joined vocational course in M.B.A. in University of Allahabad in the year 2003-04. It would appear from the record that she secured 317 marks out of 500 in M.B.A. 1st Semester, 749 out of 1100 in the 2nd Semester examination and in the final year, she secured 304 marks out of 500. THE precise split up of the marks awarded in the final year is to the effect that she was awarded 63 marks in Business Policy, 57% in Quantitative Techniques, 73% marks in Investment and Project Management, 75% marks in Financial Markets and Institutions and 63% marks in viva voce. In the year in question, she was awarded 22 marks in written paper in Business Taxation and Tax Planning out of 75 marks and 10 marks out of 25 in class participation and written assignments. According to further allegations in the writ petition, the answer script of Business Taxation and Tax Planning carrying 25 marks was vetted by Sri Ajai Kumar Singhal, arrayed as opposite party No. 5, which carried 75 marks. It is further alleged that in class test, she was awarded only 10 marks out of 25 marks on the count of participation and written assignments and consequently she was declared failed attended with further submission that she has throughout been a brilliant and meritorious student having romped home in all subsequent examination with marked excellence. It is further alleged that since Sri Ajai Kumar Singhal, opposite party No. 5 was also indulging in private coaching, he covertly pandered to those students who joined his coaching classes. It is further alleged that Dr. P. C. Verma who earlier held the charge of Head of the Department, had debarred the opposite party No. 5 from examination work pursuant to a complaint made by her maternal uncle namely Dr. Ramendra Rai and as a result he nursed animus against the petitioner and actuated by a malice, he mala fide marked her down by awarding only 10 marks out of 25 marks although all other students in the class were awarded marks between 19 to 23. THE allegations further are that some of the students who were not in attendance in class test on the date of test, were awarded 20 to 23 marks out of 25 marks. Subsequently, it is stated that the matter was represented to Vice Chancellor by the petitioner and her local guardian and acting on her representation, the Vice Chancellor appointed Dr. Aseem Mukherjee and Dr. K. G. Srivastava, Dean of Faculties of Arts who vetted the entire matter including copies of the petitioner and in the ultimate analysis, opined that injustice has been done to her. It is further stated that during pendency of the representation new Act came into being. Besides the above, various other allegations have been ventilated in the representation annexed to the writ petition in order to make out a case for acting mala fide in her case. Learned counsel for the petitioner canvassed that the petitioner was illegally flunked in the written test by awarding only 22 marks out of 75 marks and 10 out of 25 marks allocated for adjudging the performance in class participation test and written assignments attended with further submission that the same warrants revaluation by any independent Examiner. It is further canvassed that as the matter was closely scrutinized by Dean of Faculties of Arts who opined that petitioner was wrongly marked down, it is all the more furnishes a justification for rechecking of the petitioner's marks and re-examination. The learned counsel for the petitioner also canvassed that in case mala fide is brought home, the Court is fully empowered to direct re-examination by independent authority. The learned counsel voiced his serious misgivings that in case the petitioner appeared in supplementary examination, it would be fraught with adverse consequence to her career inasmuch as in the mark-sheet it is invariably written that she passed the examination in supplementary examination and by this reckoning, the badge of supplementary examination will continue to stick which will imperil and impair her future prospects. Per contra, Sri A. B. L. Gaur, representing the University of Allahabad, relied upon the affidavit of Sri S. S. Upadhaya Controller of Examination and contended that there is no provision for re-examination in the Act, Statute or Ordinance of the University. He further drew attention of the Court to the fact that matter was referred to a Three Men Committee belonging to the same department constituted by Head of the Department of Commerce and the Committee constituted by Head of the Department opined that marks awarded to the petitioner were rightly given by opposite party No. 5 and the respondent No. 5 was not actuated by any malice or ill-will in marking her down. Adverting to the report the learned counsel argued that she scored a blob in class test attended with further observation that it is on record that she was a non-serious student in class and was very poor in class participation and discussion. The learned counsel also adverted to further finding and urged that the petitioner had got 23 presents and 10 absents in the total class of 33 lecturers and for her attendance the teacher concerned has been liberal enough to award 8 marks out of 10. He also drew attention to further finding that she failed in class test and it appeared from her answer that she knew nothing about the subject and therefore she was rightly awarded Zero marks but taking a lenient and charitable view regard being had to her career, the teacher still graced her with 2 marks. Ultimately, the learned counsel submitted that the petitioner is not entitled to any relief from this Court.
(3.) THE learned counsel also drew attention to affidavit filed by Prof. Raj Shekhar (since retired) and Sri Umesh Narain Sharma, learned senior counsel appearing on behalf of Head of the Department urged that the marks were rightly given by opposite party No. 5 and there is no error of law apparent on the face of record in either scrutinizing answer scripts or in awarding marks to the petitioner. This Court by means of a prolix order dated 13.2.2007 referred to the report of Committee dated 4.10.2005 (Annexure-1 to the counter-affidavit) wherein it was stated that 25 marks are allocated to adjudge performance cumulatively on the count of attendance, class test and assignments. The Court enjoined the learned counsel for the University, and also for Head of the Department to assist the Court and shed light on the fact how the three students who were absent in class test, were awarded 21, 20 and 22 marks while only 10 marks were prescribed for attendance attended with direction to produce copy of class test of all the four students including the petitioner and marks awarded for class test and assignments and details of assignments of work allotted to petitioner and other students during the entire year and assignments completed by them. Over and above the direction aforesaid, the University was also directed to produce the entire record. Notwithstanding peremptory direction, the records have not been produced and ultimately, the Court was compelled to proceed with the hearing.;