COMMISSIONER OF EXAMINATIONS Vs. G R ARUNSHEKHAR

JUDGEMENT

(1.) This Writ Appeal is filed against the judgment dated 31-10-2003 in W.P. (C) No. 33172 of 2003. which was allowed by the learned single Judge. The appellant is the sole respondent in the writ petition.

(2.) The writ petitioner appeared for the Technical Higher Secondary Examination held in March, 2003. He failed in English and Physics (Theory). He applied for revaluation. He obtained 8 more marks in English. However, he failed in Physics (Theory) by 6 marks and he was declared as "Failed". He submitted Exhibit P2 representation requesting the respondent (appellant herein) to grant moderation marks. When there was delay in considering the representation, the petitioner filed W.P. (C) No. 29381 of 2003. The writ petition was disposed of on 17-9-2003 directing the respondent to consider whether the petitioner is entitled to moderation and if that be so, to grant eligible moderation marks and issue fresh mark list. In compliance with the said judgment, the respondent considered the matter and sent Exhibit P4 memo dated 29-9-2003 informing the petitioner that he was not eligible for moderation for the Physics (Theory) paper. In Exhibit P4 memo it is stated that a regular candidate of Higher Secondary Examination, March 2003 is eligible for a total moderation of 10 marks only for a pass. For Part II - Computer information Technology (Theory), the petitioner had scored only 16 marks and hence 5 marks moderation was awarded for a pass in that subject and thereby the petitioner obtained 21 marks in that subject. For Part III - Physics (Theory), the petitioner scored only 15 marks and he required 6 more marks for a pass. Out of the 10 marks allowed as moderation, 5 marks have already been given for Part II - Computer Information Technology (Theory) and the balance is only 5 marks. Even if the said 5 marks are given to the petitioner as moderation, he will have only 20 marks for Part III - Physics (Theory), whereas he requires 21 marks for a pass in that subject. Therefore, according to the respondent, the petitioner was not eligible for moderation for Physics (Theory) paper. When the petitioner received Exhibit P4 memo, he filed the present writ petition W.P. (C) No. 33172 of 2003 praying for a direction to the respondent to grant moderation marks for Physics (Theory) also. The learned single Judge disposed of the writ petition at the admission stage directing the respondent to award one more mark to the petitioner in addition to the 5 marks for which he is eligible, thus making the total of 21 marks for Physics (Theory) and to issue a fresh mark list declaring that the petitioner passed in the Technical Higher Secondary Examination in Class XII. Aggrieved by the above direction in the judgment, the respondent has filed the present appeal.

(3.) Facts are not In dispute. The maximum moderation allowed is only 10 marks. Such marks can be granted only to enable a candidate to pass the examination. 5 out of the said 10 marks were awarded to the writ petitioner to enable him to pass in Part II Computer Information Technology (Theory). The remaining is only 5 marks. Even if the said 5 marks are awarded to the petitioner, he will not pass in Part III - Physics (Theory) as he has scored only 15 marks and there will still be a shortage of 1 mark. Since there is no provision enabling the appellant to award one more mark, the appellant could not grant the request of the respondent. However, the learned single Judge has chosen to direct the respondent to give one extra mark to the petitioner. Learned single Judge has noted that the petitioner has secured a total of 263 marks as against the minimum 210 marks required for a pass. Learned Judge has also noted that the petitioner, is a member of the Scheduled Caste and he has applied for higher studies. It is further noted that the petitioner could not write the 'Save A Year' examination on account of the confusion in the grant of moderation marks. Apparently in view of the above circumstances, the learned single Judge considered it appropriate to direct the respondent to award 6 marks as moderation marks to the petitioner for Part III Physics (Theory).