Anil Kumar Sharma vs Guru Ghasidas University and Another

Hon''ble Shri Satish K. Agnihotri, J.—By this petition, the petitioner seeks a direction to the respondents to rectify the mistake in the mark sheet and declared the petitioner as passed in the subject of Elementary Surgery, Orthopedics, Ent, Ophthalmol.

The brief facts, relevant for adjudication, is that the petitioner was admitted to the course of Practitioner in Modern & Holistic Medicine (for short PMHM), as regular student in respondent No. 2/ Medical Institute Pendra, affiliated to Guru Ghasidas University/ respondent No. 1. According to the petitioner, as per the statement of marks for examination held in April-May 2007, the petitioner was declared as passed in all the subject except Medicine & Paediatrics (for short "Medicine") and Obstetrics & Gynaecology (for short "Gynaecology"). In Elementary Surgery, Orthopedics, Ent, Ophthalmol (for short "Elementary Surgery"), he was awarded 54 marks and, as such, declared as pass. Thereafter, the statement of marks on the basis of supplementary examination held in September-October, 2007, was given to the petitioner, where, the petitioner was shown as absent in the subject of Medicine, Elementary Sugery & Gynaecology. Thus, he was declared as failed. In the third statement of marks for examination held in July, 2010, even in that exam, the petitioner appeared in Medicine & Gynaecology and obtained 116 & 51 marks, respectively. However, he remained absent in the paper of Elementary Surgery. The petitioner wrote a letter to the University on 04.10.2010 (Annexure P-5) stating that the petitioner has passed Medicine & Gynaecology test examination in the year 2010, however, he was declared failed in Elementary Surgery, on account of being absent in the examination held in 2010, though, he was already declared as passed in the first statement of marks (Annexure P-2) issued in April-May, 2007. Thus, he may be declared as passed.

Learned counsel appearing for the petitioner submits that once the petitioner has been declared as passed, it was not necessary for him to appear in the first and second supplementary examinations held in 2007 and 2010 and the petitioner ought to have been declared as passed on the basis of marks obtained by the petitioner in Elementary Surgery. Thus, a direction may be issued to the respondents to issue a fresh marks sheet and declared the petitioner as passed in PMHM in the subject of Elementary Surgery.

On the other hand, learned counsel appearing for the University submits that the petitioner has not approached this Court with clean hands. On verification of evaluation/ assignment of marks of oral/ viva-voice test of subject paper `Elementary Surgery, it was found that there were certain manipulations and over-writing in the marks already evaluated/ assigned by the examiners. In total, he had obtained only 4 marks not 14 marks, as 1 was pre-fixed subsequently. The first statement of marks was issued and mistakenly he was declared as passed in Elementary Surgery subject on the basis of initial evaluation. However, he was held as failed in other subjects i.e. Medicine & Gynaecology. The examiner was informed vide letter dated 31.07.2007, that in the foil, there was over marking on 04 marks assigned to the petitioner, which was not counter-signed by him. Dr. R. Murthy, replied back stating that there was no overwriting requiring any counter signature and the evaluation done on the basis of foil and counterfoil was correctly assigned. This was submitted by other examiner/ evaluator also in respect of several overwriting appears to have been done on some other places. Therefore, after making all the corrections, 4 marks awarded was re-corrected with countersignature by the examiner concerned. The petitioner was never assured that the petitioner had passed in Elementary Surgery and the mark sheet would be corrected accordingly. The petitioner was thereafter declared unsuccessful in the notification dated 07.09.2007 (Annexure R-1/3), as his roll number was 400458 in Medicine, Elementary Surgery and Gynaecology.

The petitioner appeared in other two subjects namely Medicine and Gynaecology, but not in the Elementary Surgery, deliberately. Thus, the petitioner does not deserve any sympathy and the decision of the University was in accordance with law. The petitioner was afforded two opportunities to appear in the supplementary examinations, but the petitioner failed to appear in both the examinations in Elementary Surgery; thus, he was declared as failed being absent in the re-examination of Elementary Surgery subject.

In the foil of PMHM third year main examination, it appears that there was a manipulation and over-writing which was subsequently corrected by the examiner, granting 4 marks and the same was duly countersigned. It is also found that one Dr. R. Murthy, was informed by the University vide letter dated 31.07.2007 (Annexure R-1/1) that there was overwriting in the foil/counterfoil in respect of 4 students. Dr. R. Murthy responded back stating that there was no overwriting in the foil and counter foil prepared by him on the basis of evaluation. Likewise, Dr. Lakhan Singh, Dr. Meena Armo, Dr. K.N. Choudhary and Dr. Pankaj Tembhunikar, were also informed and they also responded back stating that there was no overwriting and, as such, countersignature was not done.

In the meeting held on 23.08.2007, attended by all the examiners, it appears that the foil and counterfoil were shown to them and they corrected the same accordingly as per the marks awarded by them earlier, without there being any overwriting and they countersigned. It is evident from a copy of the list of foils and counterfoils shown to the Court.

The case of the petitioner that since once the marks has been awarded, even it was by mistake, the same ought to have been maintained and the petitioner was not required to appear in the supplementary examinations, as he always treated the first statement of marks as final. The petitioner has full knowledge about the correction of his marks, as the University has published the notification on 07.09.2007 (Annexure R-1/3), wherein, the petitioner was clearly shown as failed in the Medicine & Gynaecology and Elementary Surgery. His roll number was at serial No. 32 and thereafter, the petitioner along with other students were afforded an opportunity to appear in the said papers on two occasions, firstly, in 2007 and secondly, sometime in 2010. The petitioner remained absent in the first supplementary examination, in all the papers, however, he appeared in the second supplementary examination held sometime in 2010, in other two papers, and remained absent in Elementary Surgery. Thus, the petitioner cannot take advantage of his own wrong.

The contention of the petitioner that if there was a correction made in the statement of marks awarded earlier, the petitioner ought to have given an opportunity of hearing, is misplaced, as the University had already notified and thereafter afforded an opportunity of appearing in the two supplementary examinations. The petitioner did not raise any objection for about three years and remained absent in supplementary examination. The last contention of the learned counsel for the petitioner that he was not aware of the correction in the first statement of marks is without any basis.

Reliance of the petitioner in the matter of Board of High School v. Ghanshyam wherein, the Constitution Bench of the Supreme Court held that if no opportunity whatsoever was given to the petitioner to give explanation to present their case before the committee, the resolution of the committee canceling the result and debarring the student for appearing in the next examination is vitiated, is not applicable to the facts of the case, as the University has issued notification in September, 2007 and thereafter, the petitioner was afforded an opportunity on two occasions to appear in the examination. After notification, the petitioner ought to have questioned the decision, which he did not do till the second supplementary examination was over and thereafter, the petitioner approached this Court.

For the reasons mentioned hereinabove, there is no merit in this case and the petition is dismissed. However, it is made clear that, if a representation is made to the University by the petitioner to permit him to appear in the subject of Elementary Surgery, again the University may consider the same, in accordance with law, on its own merit and take decision.

There is no order as to costs.