JAGDISH PRASAD RASTOGI Vs. ROHILKHAND UNIVERSITY

JUDGEMENT

(1.) THE Petitioner appeared in the B.Ed. examination of the year 1980 conducted by the Rohilkhand University, Bareilly as a regular student of S.S. College, Shahjahanpur. His case is that he was declared to have passed the said B. Ed. examination and was issued a nark sheet declaring him to have passed in theory in IIIrd division and in practical in IInd division. A photostat copy of the mark sheet has been annexed as Annexure -1 to the writ petition. His further case is that in the newspaper 'Amar Ujhala' Bareilly dated 27th August, 1984 a news item was published stating that the Petitioner had wrongly been declared successful in the 1980 examination and requiring the Petitioner to deposit the mark sheet in the office of this University. It is this order of the University which is sought to be quashed in the present writ petition.

(2.) COUNTER and rejoinder affidavits have been filed. Keeping in view the nature of the controversy involved in the instant case we are of opinion that it is a fit case where the writ petition may be finally disposed of at this very stage as contemplated by the second proviso to Rule 2 of Chapter XXII of the Rules of Court. We have accordingly heard counsel for the parties on the merits of the writ petition. On the basis of the facts stated in the counter affidavit and Ordinance 5 of the Ordinances framed by the Rohilkhand University in regard to B.Ed. examination, it has been urged by Sri L.P. Naithani counsel for the University that in order to pass B.Ed. examination it was incumbent upon an examinee to secure atleast 30 percent marks in each paper and 36 percent marks in the aggregate in theory papers and atleast 40 percent marks at the practical examinations, it has been pointed out that the Petitioner had obtained only 22 marks out of 100 in paper three Modern India Education and that being less than 30 percent the minimum pass marks required by the relevant ordinance the Petitioner had failed and it was due to mistake that in the column showing the result it was stated that he has passed in theory in IIIrd division and in practical in IInd division. According to Sri Naithani when the mistake was detected by the University it was simply rectified by the impugned order. Emphasis also has been placed by him on the fact that 22 marks obtained by the Petitioner in paper No. three Modern Indian Education have been encircled which is out even from annexure 1 to the writ petition which was a clear indication that the Petitioner had failed in that subject. Relying on the decision of a Division Bench of this Court in Kedar Lal v. Secy. Board H.S. and I. Education : AIR 1980 All. 32 it was urged by Sri Naithani that since the Petitioner had not obtained the minimum marks of 30 percent in one of the papers as mentioned above, it was not open to the University to declare the Petitioner as having passed in the said examination and no question of estoppel arose in such a case.

(3.) ON the facts of the instant case we are of opinion that it is not necessary to go into the question of estoppel inasmuch as the impugned order deserves to be quashed on the alternative submission made by counsel for the Petitioner namely, that even if the University was not estopped from passing the impugned order the said order was still liable to be quashed having been passed in violation of the principles of natural justice, inasmuch as the Petitioner was given no opportunity of showing cause before passing the said order. To this argument the reply of Sri Naithani was that since the Petitioner had obtained only 22 marks in one of the subjects as already pointed out above, in view of the law laid down by this Court in Kedar Lai's case, no useful purpose would have been served by giving a show cause notice to the Petitioner. According to him it was just a case of mistake which was rectified by the impugned order. We find it difficult to agree with this submission. It cannot be denied and has not indeed been denied by Sri Naithani, counsel for the University, that the impugned order amounts to a penalty in the sense that even though earlier the Petitioner had been declared successful the effect of the impugned order is to declare him to have been failed in the said examination.