Pratap Kr. Ray, J. - (1.) Heard the learned advocates appearing for the parties.
(2.) In the writ application, the petitioner has challenged the decision of the University of Calcutta deducting 5 marks from the total aggregate of 321 marks as awarded in favour of the petitioner in the M. A. Examination, 1988 as held in 1989. The petitioner got 11 marks in the 2d paper of the said M. A. Examination. The University of Calcutta by filing an affidavit-in-opposition, affirmed on 261'' day of August, 2002, has annexed a resolution of the Calcutta University Council dated 12th September, 1980 to satisfy this Court the rule of deduction of 5 marks from the total aggregate in the event the candidate who secures less than 25% marks in any paper. However, it has been submitted by the learned advocate for the University very frankly that in pursuance of the resolution of the University Council the said change of rule was not notified giving its effect from the Examination of 1979. Since the rule was not notified, as frankly submitted by the University of Calcutta, that rule cannot be given effect to and as a resultant effect the marksheet issued by the University of Calcutta appearing at page 16 of the writ application is not legally sustainable. Since the rule of deduction of 5 marks on the said contingency is not effected due to lack of any notification, the old rule will prevail. It has been submitted by the learned advocate for the University that in terms of the old rule as appearing in the regulations of the University of Calcutta under the Heading 'General" a candidate who secures 288 marks in aggregate is eligible to be declared as a pass candidate. It is further submitted that under the said rule the marks less than 25 in any paper is inadmissible to be added with the aggregate and the paper will be totally scratched. Since the new rule of deduction of 5 marks from the aggregate in lieu of scratching of whatever marks awarded in favour of a candidate who secured in one paper less than 25 marks is not applicable due to lack of notification, this writ application is to be decided in terms of the old rule. The old rule, as submitted by the learned Advocate for the University reads thus: "That the meeting recommends that in the cases of M. A./M.Sc./M. Com. examinations the present provisions of a paper being scratched for obtaining less than 25% marks in it be abolished and in its place the following regulation be adopted: 'If a candidate for the M. A./M. Sc./M. Com. examinations obtains in any paper less than 25% marks, five marks shall be deducted from the aggregate marks obtained by him'."
(3.) Having regard to the old rule since the petitioner has obtained 310 marks in the aggregate upon deducting 11 marks as awarded in the 2nd paper, the petitioner is entitled to be declared as a pass candidate of M. A. Examination. Under the old rule it appears that there was no minimum pass marks for each paper. Only embargo was that in the event of obtaining less 25% marks in any paper the said mark shall not be included in the aggregate. Hence, deducting 11 marks for the second paper as secured by the petitioner, the petitioner still reaching to the aggregate of 288 marks upon adding the other marks awarded in favour of the petitioner in the rest of the papers. In that view of the matter, the writ application succeeds. The University of Calcutta is directed to declare the petitioner as a pass candidate by issuing a fresh marksheet and a fresh Certificate to that effect following the old rule. Such marksheet must be supplied to the petitioner within a month from the date of communication of the order and M. A. Pass Certificate is also to be issued in favour of the petitioner within two months from the date of communication of the marksheet. The writ application is accordingly allowed. Writ application allowed. ;