1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER S.B.Civil Writ Petition No.4485/2004 *** Revati Raman Dadhich Vs. Unitversity of Rajasthan Date of Order :- 24.11.2008 HON'BLE MR.JUSTICE R.S.CHAUHAN *** Mr.J.R. Tantia, for the petitioner. Mr.Virendra Lodha, for the respondent. The petitioner was admitted to a course of Diploma in Ayurveds Nurse/ Compounder Training in the year 2001. In August, 2002, he appeared in all the papers of the said diploma Course. In two papers, namely Swasth Vart, he secured 54% marks in theory and in Vikrati Vigyan Mal-Mutr Parik, he secured 49% marks in theory. However, as the petitioner had scored very well in other papers, he applied for revaluation of these two papers mentioned above. On 19.06.2004, the respondent-University sent a letter to the petitioner informing him that inspite of their efforts, the revaluation process could not be completed due to loss of the answer 2 books of the said papers. Therefore, he was asked to reappear in the examination of these two papers. Since, the petitioner is aggrieved by the action of the University in not getting his revaluation done and asking him to re-appear in those papers, he has filed the present petition before this Court. Mr. Jai Raj Tantia, the learned counsel for the petitioner, has vehemently argued that the answer books were in the possession of the University and they were sent to the examiner. According to the reply filed by the University, the petitioner's answer books were sent to the examiner, but were never received back by the University. According to the learned counsel, the fault, therefore, lies entirely with the University and not with the petitioner. Although, no fault has been committed by the petitioner, he is being saddled with the responsibility of having to reappear in the two papers. However, according to learned counsel, the respondent University should have taken care for the safety of the answer books. The 3 University cannot play with the life of the petitioner. On the other hand, Mr. Virendra Lodha, the learned counsel for the respondent-University, has contended that according to Ordinance 169-G, in case answer book, submitted for revaluating, is lost, misplaced, damaged or mutilated, then the candidate is permitted by the University to reappear in the paper concerned, as soon as possible, and if need be special arrangement are made by the University. Therefore, according to the learned counsel, the only option left with the petitioner is to reappear in the said two papers mentioned above. The University of Rajasthan is a creation of statute. It performs a public function of imparting knowledge to the students. Since, it is an institution of learning, it carries a grave responsibility towards the students population. It is its cardinal duty to protect and promote the 4 interest of the students. Being a public authority, its actions have to be fair, just and reasonable. The carrying out of examination, the assessment of the answering books, the revaluation of the answering books are grave responsibilities bestowed upon the University by the Ordinance. Thus, in carrying out these duties, the University is legally bound to be just, fair and reasonable. While dealing with the answering books of the students, it is the trustee or the custodian of the answering books. Hence, the safety of the answering books is the primary responsibility of the University. If the University looses the books or it is damaged or mutilated, the University would be held solely liable for such omissions. Since the students are not required by law to ensure the safety of the answering books, they cannot be blamed for if the answering books are lost. Thus, they cannot be saddled with the responsibility to reappear in the examination where the answering books have been lost. To do so would be to subject the students to a liability for no fault of 5 his/her. Such a coercive action would impose an unjust burden upon the students. It would also promote the University to get away with an unfair, unjust and unreasonable action. In the present case, admittedly, the custody of the answering books was with the University. The answering books were lost during transit, that too for no fault of the petitioner. Yet, the University expects the petitioner to reappear for the examination. Such a stand of the University is clearly untenable, although, in the light of Ordinance 196-G, the stand of the University would be justified. Unfortunately, the constitutional validity of the said Ordinance has not been challenged before this Court. But considering the fact that the said Ordinance is totally against the very concept of equity, considering the fact that the Ordinance places an unreasonable liability on the petitioner for no fault of his, treating this case as a case of grave hardship and within 6 the peculiar facts and circumstances of this case, the University is directed to give an average marks, looking to the marks obtained by the petitioner in other papers, for the two papers in which the answering books were lost by the University. However, it is clarified that this judgment shall not create precedent for others. With these observations, this writ petition stands disposed of. This exercise shall be carried out within a period of two months from the date of receipt of the certified copy of this judgment, and a fresh mark-sheet thereof shall be published and be given to the petitioner. (R.S.CHAUHAN)J. Manoj Solanki