- (1.) HEARD the learned Advocates appearing for the parties.
(2.) CHALLENGING the judgment and order dated 17. 1. 07, passed by the learned Trial Judge in W. P. No. 62 of 2004, this present appeal has been preferred by the writ petitioner. This case has a chequered history which requires a reference for adjudication of this appeal. This writ petitioner moved a writ application being W. P. No. 2472 of 1998 on the grievance that a writ of mandamus should be issued commanding the respondent Calcutta University authority as well as the authority of the concerned Medical College to award average marks in the internal assessment of the papers Anatomy and Bio-Chemistry on the basis of the marks as obtained in the theory examination, oral examination and practical examination of those relevant subjects of the first MBBS Supplementary Examination, 1997 and thereby to direct the respondents to allow his continuation of study in third year MBBS class and to appear in both practical and theory papers. During the pendency of the said writ application, however he sat for supplementary examination and cleared the Bio-Chemistry internal assessment examination but could not succeed in the Anatomy paper. This writ application was disposed of by amitava Lala, J. (as His Lordship then was) directing the Vice-Chancellor of university of Calcutta to do the needful for declaring the writ petitioner as a passed candidate of said examination by finding out any rule to exercise his such discretionary power, if any. The language used in disposing of the said writ application is very vital, which reads as such:- "therefore, this is not cast iron case before this Court when Court should apply discretion by declaring him as pass. Now by not having appropriate Rule and not having such cast iron case Court has no other alternative but to direct the authority to apply discretion, if it is otherwise permissible and upon considering those in the manner as directed below. Other issues are incidental to the above two main issues. 26. Under these circumstances, the Vice-Chancellor of the university of Calcutta being respondent No. 2 herein is directed to hear out the representation of the writ petitioner and his guardian immediately on receipt of the signed copy minute of the operative part of the order and after giving reasonable opportunity of hearing sympathetically, if necessary by giving hearing at his residence in case of puja holidays and finding out the position of the Rules if there is any scope of applying discretion, can apply the same immediately by declaring him as pass on a date much earlier than the next date of examination on 7th October, 1998 so that the petitioner can get benefit of not losing another educational year and can sit in the examination as aforesaid with special permission. "
(3.) THE Vice-Chancellor of University of Calcutta considered the matter in terms of the said judgment passed by Amitava Lala, J. negatively by holding that the Vice-Chancellor had no discretionary power to declare a fail student as a pass candidates. The Vice-Chancellor further observed in the said decision dated 3. 10. 98 that under the University statues and Rules and Regulations there is no provision to consider the scheme as suggested by the writ petitioner whereby irrespective of his failure to clear Anatomy paper he could be de'clared as a pass candidate in First Professional MBBS examination. This decision of Vice-Chancellor became the subject-matter of a further writ application, registered as W. P. No. 2590 of 1999, which was unsuccessful, against which an appeal was led, registered as A. P. O. No. 6 of 2001, which stood dismissed by the judgment of Division Bench (corum the Hon'ble Justice Ashok Kumar Mathur, C. J. (as His Lordship then was) and the Hon'ble Justice Girish Chandra Gupta), dated 10. 7. 01. An SLP was moved against the said judgment and order dated 10. 7. 01 of the Division Bench aforesaid, registered as S. L. P. (Civil) C. C. No. 8263/ 2003, which was dismissed as withdrawn on the prayer of the petitioner as the petitioner submitted that in view of the law which permits the authority to grant grace marks he would seek permission to withdraw the SLP to approach the said authority seeking such grant of grace marks, by the order dated 26. 9. 03. The petitioner thereafter filed a representation to the vice-Chancellor of University of Calcutta by referring his power to exercise discretion in terms of Clause 34 of the Calcutta University First Regulations, 1979, which reads such:- "34. (1) The Faculty Council for Post-Graduate on Council for under-Graduate Studies concerned shall have power generally to add to the marks obtained by candidates in a subject or paper at any examination in exceptional circumstances to be specifically recorded, and on the recommendation of the Examination Board, where there is one, or the body of examiners where there is no Examination Board, and not otherwise. (2) Notwithstanding the provisions of Paragraph (1), if the Faculty council for Post-Graduate or Council for Under-Graduate Studies concerned is in any case satisfied that injustice has been done or is likely to be done to candidates at any examination in view of the fact that the question paper set in a subject is stiff or lengthy or comprises questions beyond the scope of the prescribed syllabus or contains errors, printing or otherwise, the Council may issue such directions as it may consider necessary. ";