IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 WP(C).No. 37313 of 2009(H) -------------------------------------- PETITIONER: ------------------- SHAHANA.C.P., W/O.ABDUL SATHAR, AGED 20 YEARS, K.P.M.HOUSE, CHERUKUNNM P.O., KANNUR DISTRICT. BY ADV. SMT.DAISY A.PHILIPOSE. RESPONDENTS: ------------------------ 1. KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR. 2. THE CONTROLLER OF EXAMINATIONS, KANNUR UNIVERSITY. R1 & R2 BY MR.M.SASEENDRAN,SC,KANNUR UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010,THE COURT ON 11/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.37313/2009-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MARK LIST ISSUED TO THE PETITIONER SHOWING THE MARKS AWARDED TO HER IN THE SECOND YEAR B.SC. DEGREE EXAMINATION CONDUCTED IN APRIL 2007 BY THE R.2. EXT.P.2: COPY OF THE MARK LIST ISSUED TO THE PETITIONER SHOWING THE MARKS AWARDED TO HER IN THE SECOND YEAR B.SC. DEGREE EXAMINATION CONDUCTED IN SEPTEMBER 2007 BY THE R.2. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE REGULATION FOR THE UNDER GRADUATE PROGRAMME UNDER THE FACULTY OF SCIENCE. EXT.R2.B: COPY OF THE REGULATION RELATING TO THE RE-APPEARANCE FOR BETTERMENT OF MARKS. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37313 of 2009-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the th day of March, 2010. JUDGMENT The petitioner was a student of the B.Sc. Degree examination conducted by the second respondent. She appeared for the second year B.Sc. degree examination conducted in April 2007. For Chemistry practical examination, she was absent and she failed in Botany Paper I and II. This is evident from Ext.P1 mark list. Thereafter she appeared for the second year B.Sc. Degree Examination in September, 2007 for Botany Papers I and II and its practical and Chemistry practical with registration No.6315. She was awarded 52 marks for Chemistry practical and records and 95 marks for Botany Paper I and Paper II practical and records. Ext.P2 is the copy of the mark list. The petitioner secured 588 out of 800 marks for Paper III Forestry & Wood Technology (Main) in the final year B.Sc. Degree Examination and Ext.P3 is the mark list. The respondents have withheld the results. She was told that the marks obtained by her for Chemistry Paper I and Paper II in Ext.P1, cannot be counted and she will have to appear for those examinations along with practical and then only the result will be published. The petitioner is seeking for a direction to consider wpc 37313/2009 2 the marks obtained by her for Chemistry Paper I and Paper II along with the practical marks and to declare the results. 2. In the counter affidavit filed by the University, it is contended that going by Ext.P1 itself, it can be seen that in order to secure a pass in the B.Sc. Degree Examination a student should secure not less than 35% of the total marks for the main subject with not less than 30% of the marks for theory and 30% marks for the practical examination in the main subject and 30% for theory and 35% of the aggregate for theory and practical in respect of each subsidiary subjects in Part III Optional Subject. Going by the University Regulations, the candidates who failed in the finalized results should take the whole examinations framed as one unit in the ensuring examinations. Ext.R2(a) is the regulation for the Under Graduate Programme under the Faculty of Science and Ext.R2(b) is the regulation relating to the re-appearance for betterment of marks. 3. Learned counsel for the petitioner submitted that the petitioner could not appear initially for the examination conducted in April 2007 for practical. But going by the marks she has secured, the minimum for theory paper. In the next year she appeared for the practical and has secured 52 marks. The petitioner was never told that she will have to appear for the theory paper also in that year or even later. It is pointed out that it is not a wpc 37313/2009 3 case where the petitioner had attended the theory and practical in the same year and failed to get the minimum marks required. It is therefore submitted that there is no justification for the respondents to insist hat the petitioner should write the whole examination again. 4. Learned Standing Counsel for the University submitted that going by the footnote in the mark list itself, it can be seen that separate minimum marks should be obtained for theory and practical and unless the candidates obtain the same, it can only be deemed that they failed in the examination and if so, the petitioner should repeat the same for getting the declaration sought for. 5. Even though it is pointed out that the examination should be taken together, no regulation to the effect that a candidate should appear for the theory and practical as one unit during the period of the course, has been produced. Ext.R2(b) is the regulation regarding betterment of marks by reappearance. A reading of the Appendix shows that reappearance is permitted either at the end of the third year examinations or within one year from the first appearance at the third year examinations. Re-appearance for Internal Assessment, Practical Records, etc. are not permitted and the marks secured in the previous appearance will be carried over. With regard to reappearance of betterment of marks under Part I or Part II or Part III for wpc 37313/2009 4 Bachelor of Science Course, the relevant clause is clause (g) which states that those candidates who fail in theory papers should appear for practical examination also, theory and practical shall be taken as one unit. It is important to notice that the above stipulation that theory and practical shall be treated as one unit, is only specified for the betterment of marks by reappearance. Significantly, such a stipulation is not prescribed either in Ext.R2(a) or going by the footnote in the mark list. Obviously, Ext.R2(b) and the regulations provided therein cannot apply to the facts of this case, as the petitioner is not seeking for reappearance for betterment of marks. In Ext.R2(a) also, there is no stipulation that the candidate should appear in theory and practical as one unit. True, a pass minimum has been shown in para VIII. Clause (c) therein is relevant herein and going by the same, 30% of the marks for theory and 35% of the aggregate for theory and practical should be obtained. 6. When a candidate is unable to attend for the practical examination, may be for various reasons, can it be said that the candidate has failed to obtain the minimum marks for pass in the said examination? When the candidate is absent for either theory or practical examination, there is no meaning in saying that the candidate should obtain minimum for theory and wpc 37313/2009 5 practical together and the marks already obtained should be eschewed. The minimum can be ascertained only if for the both components the student has attempted. Herein, it is true that for the theory papers alone the petitioner appeared in April 2007, but has obtained more than a minimum for those papers. Even if the candidate is also expected to appear for the practical, but has failed to appear for various reasons, the situation as envisaged under clause © of para VIII does not arise. 7. Therefore, the footnote in the mark list cannot be said to be a warning as far as the candidate is concerned. As rightly pointed out by the learned counsel for the petitioner, even when she appeared for the practical examination, it was never insisted that she should appear for theory again. Of course, learned Standing Counsel submitted that there is no obligation for the University to inform the candidate about it, as it is clear from the footnote in the mark list itself that one should obtain the minimum marks for both components put together. 8. Herein, as found already, there is no stipulation either under clause © of para VIII of Ext.R2(a) like the one in Ext.R2(b) that the candidate should take theory and practical examination as one unit. Even in Ext.R2(b) emphasis is on such appearance in a case where the candidate fails in theory papers and not vis-à-versa. Going by the facts stated herein, the petitioner wpc 37313/2009 6 had not failed in practical papers. 9. Therefore, as the respondents could not point out any particular regulation in the matter, the only reasonable conclusion is that the petitioner has to be allowed to count the marks obtained in the examination conducted in April 2007 for theory and the marks obtained in the practical examination attempted by her in September 2007 for reckoning the marks of Chemistry. There is no dispute that if such marks are reckoned, the petitioner has obtained the pass minimum. 10. Therefore, the petitioner is entitled to succeed in the writ petition. There will be a direction to the second respondent to consider the marks obtained by the petitioner for Chemistry Paper I and II as per Ext.P1 and the marks of the practical examination in Ext.P2 and declare the results of the final year B.Sc. examination, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/