^ HIGH COURT OF CHHATTISGARH, BILASPUR D.B, Hon'ble Shri Raieev Gupta. C.J. & Hon'bje^hri Sunil Kumar Sinha, J, Writ Appeal No. 40 of 2008 Pt. Ravishankar Vishwavidyalaya & another Versus Anurag Chandra Sao & another ORDER For consideration Sd/- SunilKumarSinha Judge Hon'ble Shri Justice Rajeev Gupfa J ^-^-•3C-S-^ Sd/- Chief Justice Post for Order ^3 /04/2008 Sd/- "~~-i- s""aKumarSinAa L Judge ~ i A-.F. R. £ HIGH COURT OF CHHATTISGARH, BILASPUR D.B. Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENTS ^~f^^' Writ Appeal No. 40 of 2008 1 Pt. Ravishankar Vishwavidyalaya, Raipur (C.G.) through Registrar 2 Laxman Chaturvedi, Vice- Chancellor, Pt. Ravishankar Vish\wavidyalaya, Raipur (C.G.) Versus 1 Anurag Chandra Sao, Aged About-22 years, S/o- Shri Jaswant Singh Sao, R/o- Street No. 3, Shiksakh Nagar, Durg (C.G.) 2 Principal, Chhatrapati Shivaji Institute of Technology, Durg (C.G.) CWritABoeal under Section 2 (1) of the Chhattisaarh Hiah Court (Appeal to Division Bench) Act, 2006) ^i:^^''^"- Appearance: Shri Vinay Pandey, counsel for the appellants. Shri V.G. Tamaskar, counsel for respondent No.1. Shri V.R. Tiwari, counsel for respondent No.2. ORDER (23.04.2008) Following Order of the Court was delivered by Sunil Kumar Sinha, J. (1) Challenge is made to the order dated 4.3.2008 passed by the Learned Single Judge of this Court in W.P.(C) No; 7114/2007, whereby the petition filed by respondent No.1 was allowed and the appellants herein were directed to publish his result within a period Writ Appeal No. 40 of2008 of 10 days from the date of receipt of copy of the said order, after taking into consideration '22' marks obtained in the concerned subject. (2) The facts, briefly stated, are as under: 2.1 The respondent No. 1/petitioner namely Anurag Chandra Sao was a regular 6tudent of Bachelor of Engineering (Mechanical Disciplin6) 5 years integrated course. He was prosecuting his studies from Chhatrapati Shivaji tnstitute of Technology, Durg (C.G.) (hereinafter referred to as Institution). He appeared in the Vlttth Semester's examination conducted in the month of April, 2007. The results were declared in the month of June, 2007 and respondent No.1 found that he was awarded only 2 marks in the Refrigeration and Air Conditioning Theory Sessionals and was declared as 'fail'. When he made representation and records were scrutinized, it was discovered that in fact, he was awarded 22 marks in teacher's assessment but due to clerical/typographical error in list submitted to the University, marks against theory sessionals in Refrigeration and Air Conditioning were indicated as '2' in place of '22'. 2.2. As soon as this mistake was discovered by the Institution, it immediately wrote a memo No. 761 dated 20.6.2007, (Annexure-R-2-1) to the appeltant-University .A._— Writ Appeal No. 40 of2008 MSI making mention about the mistake committed by them. This memo was signed by Mr. R.A. Mishra (Subject Teacher) and also by Head of the Department (H.O.D.) of Mechanical Engineering Department making endorsement that "verified from original sessionals documents" and was forwarded by the Principal of the Institution. \ 2.3 In response to the above memo, the University wrote a letter to the Principal on 27.7.2007 to produce the original records pf the concerned student for its perusal so that further action may be taken on the subject. The copy of the memo dated 27.7.2007 has been annexed as Annexure-R-2-2. 2.4 In response to the aforesaid memo of the University, Institution, on 23.8.2007, produced the following informations/records to the University through its letter No./Mech./Gen./1029, the copy ofwhich has been filed as Annexure-R-2-3: "1. The Result Analysis from 1st Semester to 8th Semester shows that he has passed all the semester without a single back-log in subjects with more than 1 division marks. 2. 3. List of Top-twenty students of 8 semester in which his ranking is 4 position in the class. Original Sessionals documents showing that the student has been awarded 22 marks in teacher's assessment (TA) in Refrigeration and Air Conditioning. 4. Grade Sheets provided by Pt. R.S.S.U. from 1 Sem to 8 Sem. are furnished. st J3_ Writ Auoeal No. 40 of2008 5. His appointment letter from M/S Infosys Technologies Ltd., Banglore, is furnished which shows that he is a good student all along in his academic career." 2.5 The receipt of this memo, signed by the Deputy Registrar (Confidential) of the' University, in the prescribedform, was also given to the Institution, the copy ofwhich has been filed as Annexure-R-2-4. 2.6 It appears that thereafter, an affidavit dated 29.8.2007 was also produced by the Principal of the Institution mentioning above details, the copy of which has been filed as Annexure-R-2-5. A copy of the marks obtained in teacher's assessment and class test of 61 students has also been filed as Annexure-R-2-6. This document shows that the total marks allocated to the teacher's assessment was 30, which was divided into 3 heads in following manner (1) 40% in class attendance; (II) 30% in class performance (CP) and(i")30% in the home assignment (HA). That means 12 marks were allocated for the attendance and 9-9 marks were allocated for class performance (CP) and home assignment (HA). (3) The case of respondent No.1 before the Single Judge was that he was assigned "22" marks in teacher's assessment but due to clerical/typographical mistake it was shown as "2" marks, therefore he was declared as fail and when these facts were brought to the notice of the University, the University also examined the same but ^ ^ ^A^ % Writ ATOeal No. 40 of2008 even after that, he was not declared as pass. The University contended that it was not a case of violation of statutes or ordinances or regulations or notifications and circulars issued in this regard from time to time. On receiving communication from the Institute, certain queries were made from them, however they can not satisfy the queries of the.University, therefore, the Executive Council resolved to reject the prayer of respondent No.1 and the explanation and request of the Institution for correction of the sessionals marks obtained by the petitioner. The Learned Single Judge, after thorough scrutiny of the matter and after giving due considerations to the submissions made by the learned counsel for the parties as also to various provisions of ordinance 28 applicable to the engineering examination conducted by the appellants, accepted the contention of the respondents that due to clerical/typographical error, '2' was typed in plaee of '22' in the subject Theory Sessionals and Refrigeration and Air Conditioning and allowed the writ petition and issued directions to the appellants referred to above. (4) Learned counsel for the appellants argued that the Learned Single Judge erred in holding that, in fact, respondent N'o.l/petitioner had obtained 22 marks in teacher's assessment and he should have been declared pass by the University after taking into account as above. He also raised the point of jurisdiction and scope ofjudicial review in such matters. . i^--^ "^r Writ Aoueal No. 40 of2008 (5) Per contra, learned counsel for the respondents opposed these arguments and supported the order passed by the Learned Single Judge. (6) We have heard the learned counsel for the parties at length and have also perused the records of the writ appeal and the writ petition. '•l.~. (7) A perusal of the document Annexure-R-2-6, which is the details of marks given in the teacher's assessment (TA), would show that respondent No.1 was. given 7 out of 12 marks for his attendance, 8 out of 9 marks for his class performance (CP) and 7 out of 9 marks for his home assignment (HA) and in this manner, he was given 22 marks in teacher's assessment. Such break-up of the marks is shown in a tabular form. In all common sense a candidate will never dbtained 2 marks in teacher's assessment (TA) unless out of 3 break-up, referred to in this document, he is given zero in one of them. In the case on hand, we can easily draw an inference that respondent No.1 was not given zero for the attendance because if he would have been given zero and his attendance would not have been 85%, he would not have been allowed to appear in the theory examination on account of a bar created under Ordinance No.6 framed under the M.P. (C.G.) Vishwavidyalaya Adhiniyam, 1973, therefore, the marks given as 7 out of 12 for the attendance appears to be reasonable and correct. We'have also scrutinized the document and we do not find any over writing in the marks given to WritAppealNo.40of2008 respondent No.1 in the above break-up which in total comes as 22. Not only this in the same document in CT, he has been awarded 10 marks and again in the last column i.e. TA + CT he has been shown to have obtained 22+10. ^ (8) Besides the above, a copy of affidavit dated 07.04.2008 of Mr. > R.A. Mishra, the Professor of>the concerned Department has also been filed, in which, he has made categorical statement that as a teacher of respondent No.1 in Refrigeration and Air Conditioning subject in VIllth Semester, he had given him sessionals for the year 2006-2007 in the following manner: "(1) Class Attendance (2) Class Performance (3) Home Assignment 07outof12 08 out of 09 07 out of 09 Total marks in Sessional 22 out of 30" Therefore, on the basis of materials available on record, we do not find any reason to hold that the finding of the Leamed Single Judge is erroneous or unreasonable. (9) Our above conclusion further finds support by Ordinance No.6, which deals with the examinations in general. Part II of the Ordinance deals with the admission of a regular candidate to an examination of the University. Clause 2 in this part provides that no regular candidate shall be admitted to an examination of the University unless he satisfies the conditions mentioned in this clause. Sub-Clause 7 (iii) of Clause 2, which relates to the attendance reads that: •••Slfgyft Writ Appeal No. 40 of2008 "iii) The Principal of the College or hlead of the University Teaching Department or School of Studies concerned shall send to the Registrar atleast three weeks before the commencement of the examination concerned three separate lists as detailed below:- List A : Of those candidates who bave attended at least 75 percent both of the lectures delivered and of the practicals held separately in each subject of the course pf instructions for the examination (in the case of faculties of Medicine and Ayurveda, the minimurh.attendance in theory shall be 75 percent and ih practicals and ward clinics 85 percent separately and in the case of Faculty of Engineering the minimum shall be 85 percent separately of lectures for each theory paper and for practicals/sessionals). List B : Of those candidates whose attendance is short by not more than 15 percent forcondonation by the Kulapati. The Principal or the Head of the University Teaching Department/School of Studies concerned are required to give specific reasons for condonation of shortage along with their recommendation. List C : Of those candidates whose shortage of attendance exceeds 15 percent and who are to be debarred from appearing at the examination." (10) If a regular student will not fulfill the above criteria of attendance, certainly, he would not be permitted to an examination of the University for which he was prosecuting his studies in particular sessions and if the student has been permitted to final examination by the University and the result has been declared, it shall be inferred that he has attended requisite number of lectures for each theory paper and for practicals/sessionals and if the marks in the proportions are to be allocated for the attendance, such candidate who has been permitted to appear in examination, must have been allocated atleast more than '2' marks out of '12' in the -A Writ Appeal No. 40 of2008 class attendance otherwise it would have been a case of non- permitting him in the examination. Admittedly, the petitioner has been permitted in the examination and no objection in this regard has ever been raised by the University. (11) Moreover, nothing could be brought on the records against the above contentions and matenals, which may suggest that the \ petitioner, in fact, had obtained. only '2' marks in the teacher's assessment and he has failed. (12) So far as question of jurisdiction and scope of judicial review is concerned, suffice it to say that every action of State or its instrumentality, which is illegal^in contravention of the prescribed procedure, unreasonable, irrational or malafide is open to judicial review. All executive and administrative action bf the State or other authorities or public bodies legally treated to be aufhority, which is voilative of fundamental rights or any statute is open to judicial review. The power of judicial review under Articte 226 of the Constitution is implicit and has to be readily inferred unless expressly excluded by a provision of the Constitution under the constitutional scheme and in its dispensation nothing can be said to be unreviewable discretion. Moreover when a finding has been recorded that the error was clerical/typographical error, can it not be allowed to reetify ? We do not feel that any law will prevent to rectify a clerical or typographical error. The only rider could be that if there is any statutory procedure to do the same, that has to be followed -A. %!a ^ J Writ Anoeal No. 40 of2008 ^ssi^^^^i but in absence of any such statutory procedure, such error should be and must be rectified at the earliest possible stage of its discovery keeping in mind the fundamental principles of natural justice in appropriate cases where somebody is going to be affected. We do not find any force in such arguments-'advanced by the learned counsel for the appellants. (13) In view of the above discussiqns, we do not find any merit in the appeal filed by the University. (14) The appeal deserves to be and is accordingly dismissed. Since we had stayed the operation of the impugned order until further orders, therefore, we note that the interim order stands vacated and the University is directed to publish the result of respondent No.l/petitioner, in terms of the order dated 4.3.2008 passed by the Learned Single Judge, within a period of 10 days from today. (15) Nocosts. Sd/- Chief Justice Sd/- SunilKumarSinha Judge vatti