- (1.) The petitioner Anjan Bhattacharya is the applicant under article 226 of the Constitution of India praying inter alia for a writ in the nature of mandamus asking the Viswa Bharati University and its Vice-Chancellor, Registrar, Controller of Examinaiton and Deputy Registrar (Examination) to declare that he had passed the Pre-Degree Second Semester (Mid Term) Examination of 1982 and also for a further writ in the nature of mandamus commanding the said respondents to declare and/or disclose the results of the said examination before the arrival of the result of review and that for a writ in the nature of certiorari by setting aside the order or decision of the Vice-Chancellor or Academic Council in respect of the case of the petitioner relating to his result in the said examination and in the nature of prohibition restraining the respondents from withholding his results so far as to declare that he had passed the said Second Semester (Mid Term) Pre-Degree Examination 1982.
(2.) The case of the petitioner inter alia is that he appeared in the Second Semester Examination (Uttar Siksha Sadan) in May, 1980 after clearing of all the subjects in the Pre-Degree First Semester Examination in 1979. His examination was cancelled for resorting to unfair practice and he was suspended for one year. He appeared in 1982 again and failed to secure the qualifying marks in English, Bengali, Social Studies and Geography theory. He alleged that he was in the bad books of the teacher of Geography who victimised him out of personal vendetta. His father who was a Research Officer of the same University in its Agro Economic Research Centre, deposited the requisite fees for the review of the three subject viz. English, Bengali and social Studies but not in respect of the subject Geography on the understanding that when a candidate passed in all the subject he would automatically get a grace marks of three in the subject he was unsuccessful according to the provision of the 1980 rules printed at page 830 of the Annual Report of Viswa Bharati. The said rule inter alia contained the provision to the effect that grace marks up to a total of 3 marks per semester was to be awarded to an individual student in a Pre-degree course/courses where necessary. On review the petitioner was given to understand only in the month of August 1982 that he had passed in those three subjects sought to be reviewed and he was given mark-sheet in December, 1982. The said mark-sheet revealed that he was declared unsuccessful on the ground that he failed in one subject viz. Geography theory and it was written in the mark-sheet inter alia to the effect that he was to repeat Geography theory. This was penned through and in its place it was written that he had lost three chances. The Viswa Bharati Uiversity thus meant to debar the petitioner from appearing in any further examination so far as the said examination is concerned for having lost three chances. The petitioner quoted the relevant rules for 1980 which contained inter alia the provision that, "Student failing to secure the qualifying marks in not more than two courses in any semester examination for failing to appear at any semester examination in not more than two courses would be permitted to repeat the examination twice again in the next regular semester examination in such course or courses". The petitioner on the basis of his mark-sheet made an enquiry if he had a further one chance for appearing in the said examination and also submitted an application to Upacharyya (Vice-Chancellor) through the Principal on 10.1.83. The petitioner was not given any opportunity of being heard on this application and his application was also not forwarded to Academic Council. It was not known to him whether the said application had ever been considered by the Academic Council in the light of the correct rules but it was reported to him that he having lost all the three chances, no further opportunity was to be given to him to appear in the said examination and there was no scope to place his grievances before the authorities concerned. His further contention is to the effect that when the University decided to suspend his examination by way of a penal measure so as to debar him from appearing in the said examination in 1981, since hecould not avail of the said chance, it could not be deemed to be a chance at all. Even if his appearing in the said examination in May, 1980 was taken as one chance, he would have two more chances and as a natural corollary therefrom, he contended that he had his second chance in 1982 and he was yet to avail of the 3rd chance. His further grievance was that he was entitled to the benfit of the provisions contained in the rules regarding award of the grace marks which entitled him to pass even in May, 1982 but his result in three subjects having already been reviewed and he having found to have passed in all the subjects except Geography theoretical, where he secure 9/1/2, i.e. 10 and required only 2 marks in order to make him pass. His representation dated 10.1.83 was followed up by another representation dated 13.6.83 which was reproduced in annexure 'E' to the application. The Academic Council met on June 17, 1983 but no decision was arrived thereat. His results on review having been upheld, he was asked to appear in Mid-Term Examination for Second Semester for all the four subjects and though the results were published in respect of the said examination on 13.12.82 but his results wee withheld. Instead the mark-sheet he secured on review on the three subjects was disclosed to him in the mark-sheet sent to him on 13.12.82. Thus he was deprived of the results in the Second Semester Examination. His contention is that by depriving him of a due publication of his results, the respondents are resorting to an arbitrary action by taking the stand that he had already exhausted three chances. Though the results on review are normally published within one year or before the Mid Term Examinations, but in his case the results on review were initially withheld with an ulterior motive till the Mid Term Examination were held and the petitioner was asked to appear in the Mid Term Examination in respect of all the four subjects which he complied with but he was deprived of due publication of the results thereof. The petitioner's further grievance was that he ought to be declared having passed the said examination since the results not having been published, he would be deemed to have passed. The results in the Second Semester (Mid Term) Examination which took place before the publication of the results on review were deliberately suppressed and not disclosed to him in an arbitrary and malafide manner by resorting to a peculiar stand that the petitioner already had lost three chances and was not entitled to appear in the said exmination at all depiste the fact that he was actually allowed to appear therein.
(3.) The Viswa Bharati University contested this writ application by filing an affidavit-in-opposition. The preliminary point taken by the University was that the petitioner applied for Migration Certificate on 25.3.83 and actually received the said certificate on 29.8.83. The Migration Certificate having already been issued to him there was to all intents and purposes, a waiver of his alleged right, if any, to claim the declaration he sought for, since he was not to be treated as a student of the University any more. He was thus not entitled to claim his legal right by virtue of a prayer for review of his results and/or due publication thereof. The further contention raised by Viswa Bharati University was to the effect that by virtue of the Migration Certificate having been issued to him on 29th August, 1983, he was not longer a student of the Viswa Bharati University. An attempt was made to tarnish the image of the petitioner inasmuch as he was found in 1980 to have resorted to unfair practice in the examination as a result whereof not only his examination was cancelled but he was deprived from appearing at the Pre-degree Second Semester (Mid Term) Examination in 1981. The allegation of notice in so far as the teacher of Geography is concerned, was denied as unfounded and hatched up for the purposes of this case. It was denied by the University that there was existence of any such rule which provided inter alia that a candidate having passed in all the subjects would automatically get a grace of 3 marks in the subject in which he was found unsuccessful. There was no such rule by which a candidate was given the legal right to claim grace marks. Granting grace marks would be a matter entirely within the discretion of the Examination Committee and could not be claimed as a matter of right as was sought to be done by the petitioner. It was brought to notice of the Court by the learned advocate for the respondents that whatever might have been the prevailing rules operating in 1980 about awarding of grace marks up to the total of 3 marks per semester, the new rules which were operative in so far as the petitioner's case for the Second Semester Examination 1982 was "a grace mark of 2% of total marks in paper or papers subject to minimum of one and maximum of 3, provided that this award helps the student to pass in that part of the examination". It was also pointed out that the petitioner cleared the 3rd Semester Examination as a repeater candidate in 1981 and he passed the 4th Semester Examination as a regular candidate in the self-same year. He appeared in the Pre-decree Semester Examination (repeater) in 1982 as an ex-student candidate and failed in 3 subjects viz. English, Bengali and Geography theory. So he lost his 2nd chance. The result was published on 24.7.82. In 1982 he applied for review in English, Bengali and Social Studies and the review results were ready on 15.10.82 but the puja holidays intervened from 19.10.82 to 18.11.82 and as such results could not be published. He again appeared in the Pre-degree Second Semester (Mid Term) Examination as an ex-student candidate and this time his results were better than that of the review results. Mid Term results were published on 13.12.82 and he was declared to have failed in Geography and thus he lost his 3rd and last chance leaving no other chance for him to avail of. It was stressed out by Mr. Banerjee, the learned advocate for the Viswa Bharati University that since award of grace marks was an absolute unfettered discretion of the Examination Committee, the petitioner had no legal right to claim grace marks as of right and as such he had no case at all to seek his remedy by way of a writ. The new rules came into effect on and from 1.1.82 and since no one had a vested right in the rules, the petitioner having appeared in the examination for 1982, he was to be guided by the rules which were held prevalent on and from 1.1.82 and not the old rules which prevailed in 1980 when he appeared for the first time in the said examination.;