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If an error committed by any authority is timely rectified by it, then no irregularity or illegality can be attributed to it

HIGH COURT OF ORISSA : CUTTACK

W.P.(C) NO. 12853 OF 2007

In the matter of an application under Articles 226 and 227 of the Constitution of India.

Sujata Patra …….. Petitioner

-Versus-

The Vice-Chancellor, Utkal University and others ……… Opp. Parties

For petitioner : M/s. Purnendu Prasad Ray, D.P. Ray and A.P. Ray, Advocates.

For opp. parties : M/s. T.N. Pattanayak and S. Pattanaik, Advocates [O.Ps. 1 and 2]

PRESENT:

THE HONOURABLE DR. JUSTICE B.R. SARANGI

Date of hearing : 16.11.2018 :: Date of Judgment:20.11.2018

DR. B.R. SARANGI, J.

The petitioner, who had appeared at the B.Ed. Examination (General) 2006, has filed this application challenging the notification dated 03.02.2007, which had been issued in partial modification of the notification no. E.C.V/12137/06 dated 30.10.2006, and subsequent order passed by the Vice-Chancellor dated 11.01.2007 in revising the result of the students mentioned therein, including the petitioner whose name finds place at serial no. 4 having Roll No. 106B071 declaring her as “Fail” by revising the previous result of “2nd Class”.

2. The factual matrix of the case in hand is that the petitioner appeared at the B.Ed. Examination (Regular), 2006 being a regular student of Nalinidevi Women’s College of Teacher Education, Bhubaneswar, the result of which was published on 30th August, 2006, where she was declared pass in 2nd Class. She was also issued with a pass certificate (provisional) and mark sheet signed by the Controller of Examination-opposite party no.2 from the College Office, which were countersigned by the opposite party no.3 on 30.11.2006. But when necessity arose for her conduct certificate and College Leaving Certificate, she made an application to provide the same. Subsequently, she was called upon to produce those pass certificate (provisional) and mark sheet, which she deposited on 07.03.2007 in the college office. The opposite party no.3 retained the said original documents on the basis of the communication made by the University that the petitioner was failed in the B.Ed. Examination held in July, 2006. Subsequently, she had to sign the register indicating that she returned the original pass certificate and the mark sheet. Though legal notice was issued on behalf of the petitioner to provide her pass certificate and mark sheet along with conduct and College Leaving Certificate, but in reply the authority denied to provide the same, as she had not passed the said examination, and issued notification dated 03.02.2007. Therefore, challenging such notification dated 03.02.2007 in Annexure-4/A, this writ application has been filed.

3. Mr. A.P. Ray, learned counsel for the petitioner argued with vehemence that once the petitioner was supplied with the provisional pass certificate as well as mark sheet declaring her as pass in 2nd Division in B.Ed. (General) Examination, 2006, subsequently the impugned notification should not have been issued declaring her fail without assigning any reason. It was specifically contended that while revising such result sheet, principle of natural justice has not been complied with. Therefore, interference of this Court has been sought for.

4. Mr. T.N. Pattnaik, learned counsel appearing for opposite parties no.1 and 2 contended that the petitioner, having failed in two written papers, “hard case rule” had been applied to her case in order to declare her pass. As per the said “hard case rule”, 2% of the theory marks were to be added, which comes to 14. However, she had been awarded 17 marks wrongly. It was detected subsequently and placed before the committee. Accordingly, the result of the candidates, including the petitioner, who were initially declared pass, were declared fail in the notification dated 03.02.2004 vide Annexure-4/A. It is contended that the mistake, which had been committed by the authority, has only been rectified by issuing subsequent notification and for that purpose compliance of principle of natural justice is not mandatory.

5. This Court heard Mr. A.P. Ray, learned counsel for the petitioner and Mr. T.N. Pattnaik, learned counsel for opposite parties no.1 and 2. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.

6. The undisputed fact is that the petitioner was a regular student of Nalinidevi Women’s College of Teacher Education, Bhubaneswar. She had appeared the final examination of B.Ed. held in the month of July, 2006, result of which was published on 30.12.2006 declaring her “pass” in 2nd Division. On 16.01.2007, she was provided with pass certificate (provisional) and mark sheet signed by the Controller of Examination and counter signed by the College authority on 03.11.2006. When she required her conduct certificate and College Leaving Certificate by making necessary application, she was called upon to appear before the college authority on 06.03.2007. Accordingly, she appeared before the college authority on 07.03.2007, where she was instructed to produce her original pass (provisional) certificate and mark sheet. Accordingly, she produced the same and signed the register indicating that she has returned original provisional pass certificate and mark sheet to the college authority. Then she came to know the notification dated 03.02.2007, which was issued by the University in partial modification of notice dated 30.10.2006 and subsequent order passed by the Vice-Chancellor dated 11.01.2007 by which the result of the petitioner has been revised from “2nd Class” to “Fail”.

7. This Court vide order dated 21.04.2010 passed the following order:-

” Mr. Patnaik, learned counsel appearing for the University is directed to produce the answer scripts of the petitioner in B.Ed. Examination, 2006 in which she appeared by the next date. He is also directed to produce the records containing the decision pursuant to which the result of the petitioner was again revised and she was declared fail.
Put up this matter on 21.06.2010. A copy of this order be handed over to Mr. Patnaik, learned counsel for the University.”
Pursuant to the above mentioned order, the direction was given to produce the answer scripts. But such answer scripts could not be produced as the same had already been destroyed as per the rule, which fact has been indicated in the order dated 28.06.2010. Subsequently, on 03.08.2010, this Court directed the opposite parties to produce the records containing the decision pursuant to which the result of the petitioner was revised and she was declared fail. In compliance of the same, the opposite parties produced the record and this Court passed an order on 28.10.2010, which reads as under:-

“As recorded in order dated 03.08.2010, Mr. Pattnaik learned counsel for the University produces the records which was called for and submits that a decision was taken subsequently to declare the petitioner failed on detecting that while considering her case under the relevant “hard case rule” inadvertently, to extra marks were awarded to her for which she was initially declared to have passed.
Mr. Pattnaik, is directed to file an affidavit annexing such decision of the Board of conducting examiners and other documents pertaining to such detection of mistake by the University and the decision taken to cancel her result. Such affidavit shall be filed within ten days upon serving copy thereof on the learned counsel for the petitioner.
Put up this matter on 15th November, 2010. Urgent certificate copy of this order be granted on proper application.”
8. In compliance of order dated 28.10.2010, an affidavit was filed on 13.11.2010 annexing the decision of the Board of Conducting Examiners, along with other documents, wherein it has been stated that as per the syllabus of B.Ed. Examination, there are 7 papers in total carrying 700 marks (i.e. 100 in each paper) and a candidate has to secure minimum 36 marks in each subject in order to pass. Under the relevant “hard case rule”, if it is found that a candidate fails maximum in two written papers, by not more than 2% of the total theory marks, the minimum marks required to make-up deficiency in the written papers can be added in order to enable the candidate to pass in the examination.

9. In the present case, the petitioner was failed in two written papers and the said “hard case rule” was applied to her case in order to declare her pass. But therein as per the said “hard case rule” 2% of the total theory marks should have been added which comes to 14, however, she was awarded 17 wrongly. Thus when the same was detected, it was placed before the Board of Conducting Examiners in its meeting held on 12.10.2006, wherein the Board was pleased to revise the result of the B.Ed. (General) Examination, 2006. As a result, some of the candidates, including the petitioner, were declared fail, as reflected in the impugned notification of the University dated 03.02.2007.

10. The result of B.Ed.(General) Examination, 2006 was published provisionally, vide Notification No. EC.VE.15/12147/2006 dated 30.12.2006. However on verbal complaint of Dr. S.M.Pani, the Ex-Principal of Radhanath IASE and the Ex-Member of the Conducting Board of Examiners of B.Ed. Examination of the University as regards wrong implementation of the “hard case rule” prior to the publication of the above said result, a meeting of the Conducting Board of Examiners was convened with the permission of the Controller of Examinations, Utkal University to discuss and take a decision in the matter.

11. The Board of Conducting Examiners in its sitting held on 12.12.2006, after due discussion and deliberation on the issue of wrong implementation of the “hard case rule”, resolved that the result of the B.Ed.(General) Examination held in the month of July, 2006 be revised due to wrong implementation of the “hard case rule”. The Board was of the opinion that the Tabulation Register prepared by the Computer Cell had neither followed the old “hard case rule” nor the common “hard case rule” at Correction Slip No. 1265 as circulated and given effect to by the Vice-Chancellor on 19.08.2006.

12. Since the Board of Conducting Examiners happens to be the competent body under the Statutes to frame rules and to implement the same in regard to examinations, it therefore decided that the old “hard case rule” is to be applied to the candidates who have appeared the B.Ed. Examination, 2006 and their result be revised accordingly by the Tabulator on the body of the Tabulation Register, which has very much been approved by the Vice-Chancellor on 11.01.2007. Thus on the basis of the same, the result of the B.Ed. Examination 2006 has been revised vide office letter at Memo No. E.C.V./15/1493/07, dated 03.02.2007. By virtue of the said notification the petitioner, along with four other candidates, has been declared fail. Thus there is no illegality in the said notification issued by the University as alleged.

13. In view of the pleadings available on record, if a mistake has been committed by the authority, it has got every right to rectify the same.

14. In Raj Kumar Soni v. State of U.P., (2007) 10 SCC 635 the apex Court, following Gadde Venkateswara Rao v. Govt. of A.P., AIR 1966 SC 828 and M.C. Mehta v. U.O.I., AIR 1999 SC 2583, held that it is not always necessary for the Court to strike down an order merely because the order has been passed in breach of the principles of natural justice. The Court can refuse to exercise its discretion if striking down such an order will result in restoration of another order passed in violation of the principles of natural justice or otherwise not in accordance with law.

15. Keeping in view the law laid down by the apex Court, as discussed above, if a mistake was committed by the authority and on its detection the same was rectified by revision of the result, this Court is of the considered view that no illegality or irregularity has been committed by the authority so as to exercise the extraordinary jurisdiction of the Court by invoking Article 226 of the Constitution of India.

16. In view of the above position, the writ application has no merit and the same is hereby dismissed. No order as to cost.

Sd/-.

(DR. B.R. SARANGI)
JUDGE Orissa High Court, Cuttack
The 20th November, 2018

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