- (1.) P. K. Jain, J. Heard Sri Rakesh Kumar Agarwal, learned counsel for the petitioner and Sri Radhey Shyam, learned counsel appearing for respondents Nos. 1 and 2 and none appears for respondent No. 3. Since counter and rejoinder affidavits have been exchanged between the parties the petition is being finally disposed of at admission stage.
(2.) IN her petition, the petitioner claimed that she appeared as a private can didate in M. A. Previous examination of Sociology for the year 1989 conducted by Kanpur University, Kanpur. The centre of examination allotted to her was Sewa Samiti Vidya Mandir INter College, Allahabad and the Roll Number allotted to her was 20215. Her case is that she appeared in all the four papers viz. , Sociological theories, Methods of Social Research, Social Stratification and Criminology and Social Divines. It is further alleged by her that after declaration of the result she enquired from the Kanpur University, Kanpur and was told that she has been shown absent in paper Nos. 3 and 4 on account of which she was declared fail although she passed in paper Nos. 1 and 2. She immediately contacted Principal of the examination centre respondent No. 3 and was informed by the Principal that she had appeared in all the four papers and the answer books were sent to the respective examiners. An application Annexure-1 was given to the Principal respondent No. 3 on which he made endorsement dated 11-12-89 stating that the petitioner had appeared in all the four papers. A representation was also sent through registered post to the Registrar, respondent No. 1 with copies to the respondents Nos. 2 and 3, copy of which is Annexure- 3 to the writ petition. The respondents, however, did not take any ac tion on the representation made by the petitioner and arbitrarily declared her to have failed in the examination. After the petitioner failed to get the required relief from the respondents she approached this Court under Article 226 of the Constitution and prayed that by issuing a writ of man-damus the respondents may be directed to trace out the answer books of the petitioner in respect of question paper Nos. 3 and 4 pertaining to M. A. Previous Sociology, 1989 examination and to declare the result of the petitioner forthwith. Alternatively, in case the answer books are not traceable then the respondents may be directed to declare the petitioner passed on the basis of marks obtained by her in rest of the papers. Respondents Nos. 1 and 2 have con tested the petition and have filed an af fidavit of one Sushil Chandra Gupta, Superintendent Legal Cell, Kanpur University, Kapur. It was admitted that the petitioner appeared in the 1989 examination of Sociol ogy as alleged by her. It was, however, stated that the answer books of the petitioner have already been weeded out after expiry of six months from the date of the declaration of the result and hence it was not possible to produce the answer books of the petitioner before this Court. It was further stated that in marks-sheet sent by the examiner in third paper column for marks obtained was left blank against Roll No. 20215 of the petitioner and similarly in fourth paper the examiner had not mentioned Roll Number of the petitioner at all in the marks-sheet. Since the examiner did not award any marks against the Roll number of the petitioner in third paper and since the Roll number of the petitioner did not find place in marks sheet for fourth paper it is proved that the petitioner did not appear in 3rd and 4th paper. As regards the representation of the petitioner it was stated that from the en quiry in the office of the Registrar the deponent could not get any representation dated 11-12-89 and in the absence of any material, endorsement made by Additional Centre Superintendent dated 11-12-89 could not be accepted. It was further stated that the petitioner did not approach the University within a period of six months from the date of the declaration of the result to enable the University to trace out her answer books and now the answer books have been weeded out it is not possible to produce the same. The contention of the learned coun sel for the petitioner is that the petitioner was issued the marks sheet Annexure-2 to the affidavit filed with the writ petition on or after 22-12-89. Prior to that on 11-12- 89 she made a representation to the Principal vide Annexure-1 to the affidavit on which the Principal of the Examination Centre who was also Additional Centre Superintendent made an endorsement that the petitioner had appeared in all the four papers at the said examination. The petitioner also made a representation to all three respondents through registered post on 4-5-90 a copy whereof Annexure-1 was annexed with such representation, still the respondents did not take any action negligently weeding out the answer books of the petitioner.
(3.) THE contention of the learned coun sel for the respondents Nos. 1 and 2 is that since no marks were mentioned in the marks-sheet against petitioner's Roll num ber in paper No. 3 and since the Roll Num ber of the petitioner was not mentioned in marks sheet for paper No. 4 she must be deemed to have absented from appearing in these papers; that the answer books have since been weeded out it is not possible to trace out the same. Hence no relief could be granted to the petitioner. Having heard the learned counsel for both the sides it is observed with great pain that the respondents Nos. 1 and 2 were highly negligent in performing their duties. A representation was made by the petitioner on 4-5-90, but no action appears to have been taken by respondents Nos. 1 and 2. It is not specifically stated in the counter affidavit as to when the answer books were weeded out by the respondents. As regards representation of the petitioner it was stated in paragraphs Nos. 10 and 12 of the counter affidavit that the deponent could not get any representation dated 11-12-89. As regards the representation dated 4-5-90 also it was stated that the said repre sentation could not be traced out in the office. It is not specifically averred in the counter affidavit that no such repre sentations were received in the office of the respondents Nos. 1 and 2. It may not be out of place to mention that Sri T. P. Singh, learned counsel for respondents Nos. 1 and 2 received copy of the petition on 22-5-90 which was admittedly handed over to Sri Govind Srivastava an official employed in the office of respondents Nos. 1 and 2 yet no counter affidavit was filed till August, 1994 when an averment was made in the affidavit that the copies have been weeded out. The factum as to when the copies were weeded out was concealed in order to cover up the delay in filing the counter affidavit and es cape the liability for production of the answer books before the Court in case the same were directed to be produced before the Court. The original marksheet have been produced before this Court at the time of arguments. A perusal of the marks sheet for third paper discloses that different sheets of the marksheets were prepared on different dates. Sheet No. 1 was prepared on 15-7-89. Sheet Nos. 2 and 3 and 4 to 7 were prepared and signed by the examiner on 18-7-89 but sheet No. 8 was prepared and signed on 17-7-89 and no date of preparing and signing the sheet No. 9 was mentioned in the mark sheet. In all cases in which the examinee were absent Capital A' was marked agaisnt the Roll numbers of the examinee. However, in the case of petitioner the column against Roll No. 20215 was left blank and similarly against Roll No. 20815 also the column of marks obtained was left blank. This simply leads to the inference that both the candidates having Roll Nos. 20815 and 20215 had not absented from the examination but either their answer books were not traceable or they did not reach the examiner. Perusal of mark sheet for paper No. 4 discloses that a number of Roll numbers are missing from the marksheet. Sheet No. 1 was prepared and signed by one Ganesh Sinha. Sheet Nos. 2 and 3 were not signed by anybody and it is not known as to who had prepared the sheets. Sheet Nos. 4 to 8 were prepared and signed by Gopal S. Sinha, the examiner. There are lot of cuttings in these sheets which make these marks sheet highly suspi cious. On the basis of these marksheets it cannot be inferred that the petitioner was absent in the examination for papers Nos. 3 and 4. The answer books of the petitioner were either misplaced by the examiner or by the University authorities on account of which marks obtained were not mentioned in the relevant columns of marksheets of paper Nos. 3 and 4. Had respondents Nos. 1 and 2 been vigilant and had they considered the representation made by the petitioner well in time, the answer books could have been traced out and the correct result of the petitioner could have been declared. The petitioner cannot be allowed to suffer on account of in-action and gross negligence on the part of respondents Nos. 1 and 2.;