1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.4562 OF 2009 Sumit s/o Surendra Patil, Age 17 years, Minor, U/Guardianship of Father Surendra s/o Vishnu Patil, Age 46 years, Occu.Practicing Adfvocate and Agriculturist, R/o Shahu Colony, Station road, Aurangabad .. Petitioner Versus The Maharashtra State Board of Secondary and Higher Secondary Education, Aurangabad, Aurangabad Divisional Board, Station road, Osmanpura Aurangabad through Divisional Secretary and two others .. Respondents Shri P.G.Godhamgaonkar, Advocate for petitioner Shri A.R.Nikam, Advocate for respondent No.1 Shri K.B.Choudhari, AGP for respondents 2 and 3 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 13th August 2009 PER COURT : 1. At the outset, Shri P.G.Godhamgaonkar, learned Counsel for the petitioner states on instructions that the petitioner does not press for the relief at prayer clause (B) to the petition i.e. of directing the respondents to revalue the answer papers of the petitioner at the H.S.C. examination held in 2009. In the light of that statement this petition stands dismissed insofar as prayer clause (B) is concerned. 2 2. This petition at the instance of the petitioner, under Article 226 of the Constitution of India prays for issuance of a writ of certiorari directing the respondents to club the grace marks added to the total as grace marks in any one optional subject. The petitioner also prays for directing respondent No.1 to round up the fraction above 0.51 per cent into next digit and hold and declare the petitioner as having 50 per cent marks and process his merits for future claims. 3. Facts in brief as are necessary for the decision of this petition may be stated thus. The petitioner who had appeared for the MHT-CET 2009 examination after having passed the H.S.C. examination found that the petitioner was ineligible for obtaining admission on the strength of the marks obtained in the examination as the petitioner had not obtained 50 per cent marks in Physics, Chemistry and Mathematics subjects. The necessary rule in this behalf reads thus : 2.2 Eligibility criteria for Maharashtra State Candidate and Outside Maharashtra State Candidate for admission to first year of degree courses in Engineering/Technology: Candidate should be an Indian National and should have passed the HSC (Std.XII) examination of Maharashtra State Board of Secondary and Higher Secondary Education or its equivalent examination with subjects English, Physics, Chemistry and Mathematics AND Secured minimum 50% marks i.e. not less than 3 150 marks out of 300 marks (minimum 45% marks i.e. not less than 135 marks out of 300 marks in case of candidates of Backward class categories belonging only to Maharashtra State) in the subjects Physics, Chemistry and Mathematics added together AND Obtained a non zero score in subjects Physics, Chemistry and Mathematics added together at MHT-CET 2009. 4. The petitioner undisputedly had obtained 149 marks and, therefore, the petitioner had not obtained the requisite 50 per cent. The petitioner, therefore, prays that the said marks be rounded up to be 50 per cent so as to enable the petitioner to compete for the purposes of securing admission. 5. The learned Counsel for the petitioner has placed reliance on the Judgment of Supreme Court in State of U.P. and another versus Pawan Kumar Tiwari and others, (2005) 2 SCC 10. The Supreme Court at paragraph 7 held thus : “ The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates had been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment.” 4 Relinace is also placed on the Division Bench Judgment of this Court dated 6.4.2009 in Writ Petition No.623 of 2009. In the said Judgment, the petitiioner therein had obtained 44.59 marks in the qualifying examination instead of 45 marks which was the requirement. The petitioner therein by an interim order was permitted to appear for the Common Entrance Test. The Division Bench of this Court came to the conclusion that the Judgment of Supreme Court in State of M.P. and others vs.Gopal D.Tirthani and others could be distinguished on the ground that the said judgment operated in respect of preparation of the merit list on the basis of marks obtained in the competitive examination for seeking admission to P.G.Course in Pre P.G.Medical Examination. The Division Bench further found that on the basis of the interim order the petitioner was permitted to appear for the entrance test and the petitioner had obtained 67.97 per cent marks and was eligible to be granted admission on the strength of the marks obtained by the petitioner therein in the Common Entrance Test. In the light of the matter, therefore, the Division Bench made Rule absolute by permitting the petitioner to compete for admission on the basis of the marks obtained in the CET examination. The aforesaid judgment, therefore, is to be read in the light of the facts stated therein. 6. Relinace is also placed on the Judgment of Division Bench of this Court dated 17.9.2008 in Writ Petition No.3698 of 2008 in respect of rounding up of the marks for admission to M.Sc. (Biotechnology) in the 5 respondent No.2 – College therein. The Division Bench had directed that the marks obtained by the petitioner therein i.e. 54.52 per cent should be rounded off to 55 per cent. 7. On the strength of the aforesaid judgment, it is urged by Shri Godhamgaonkar that since the petitioner had obtained 149 marks out of 300 in the Physics, Chemistry and Mathematics subjects, the petitioner fell short by one mark and could not secure the requisite 50 per cent marks. The fraction of the marks, therefore, needs to be rounded off to 50 per cent. As pointed out by us above, the rules in this behalf are silent in respect of rounding up of the marks. Learned Counsel for the petitioner has very fairly conceded that there are no rules dealing with rounding up of the marks at the time of consideration of admission on the basis of merit. Rule 2.2. is explicit in the sense a candidate must secure minimum 50% marks i.e. not less than 150 marks out of 300. Since the rule in explicit language lays down that the candidate should secure not less than 150 marks on a plain language of the aforesaid rule completely excludes the rounding up of the marks. The Judgments on which reliance is placed by the petitioner are wholly inapplicable to the facts of the present case. 8. Relinace is next place by Shri Godhamgaonkar on the fact that the petitioner was given three marks as grace marks. According to the learned Counsel for the petitioner, Rule 99 (3) would apply which reads 6 thus : “99. STANDARD FOR PASSING IN A SUBJECT (1) To pass in a subject of the Higher Secondary Certificate examination, a candidate must obtain not less than 35% of the maximum marks assigned in that subject. (2) In a subject for which there are two papers or one paper and one practical test, the marks will be added together for a pass, credit or distinction. (3) If a candidate, who appears in all the subjects required for obtaining the Higher Secondary Certificate at one and the same examination, fails in one or more subjects, his deficiency of marks in one subject or more, upto a maximum of 15 marks in the aggregate but not exceeding 10 marks in any one subject, shall be condoned. This concession of condonation shall be allowed and shall be limited to 3 subjects only out of subjects offered. (4) Candidates appearing with exemption shall be granted automatic condonation of marks for the purpose of passing, as detailed below :- The automatic condonation of 8 marks shall be granted to a candidate at the Higher Secondary Certificate examination in proportion to the number of subjects of failure but not exceeding 3 marks in any one subject as per the following schedule : No of subjects Condonation marks admissible 1 3 2 5 3 8 7 (5) Notwithstanding anything, contained in Sub Clause 3 (above), a candidate who has actually participated in any sports or games held in India or abroad on State, National, Inter-national level in the same academic year, the limit of maximum 10 grace marks in a subject shall be extended up to total 15 grace marks provided such request is made by the candidate concerned through the respective head of the Junior College; so as to reach to the Divisional Secretary of the Divisional Board concerned up to one month from the date of the declaration of results. All such applications shall invariably be submitted in a prescribed form along with a certificate of the District Sports Officer, to that effect to the Divisional Secretary of the Divisional Board concerned.” Shri Nikam, learned Counsel for respondent No.1 has pointed out to us Rule 105. The rule dealing with Grade II reads thus : Grade II : To successful candidates who obtain not less than 45% of marks but less than 60% of marks in the aggregate calculated on the basis of the six or seven subjects offered for the examination. 9. Shri Godhamgaonkar, learned Counsel for the petitioner urges before us that the Rule 99 (3) would apply as the said rule deals with passing of a candidate in the examination. According to us, the aforesaid submission of the learned Counsel for the petitioner is without merit. The Rule 105 which deals with grant of grace marks to a candidate who falls between 45% but less than 60% would be the rule applicable to the case of the petitioner. Since the petitioner fell short by three marks in securing 8 first division, the aforesaid three marks came to be granted to the petitioner. Rule 99 (3) deals with a candidate who fails in the examination either in one or more subjects and this rule complies the distinction of making of the deficiency in passing in those concerned subject. Rule 105 deals with giving of grace marks to a candidate in order to secure first division. Rule 105, therefore, would be the rule which would be applicable to the case of the petitioner. It is the contention of the petitioner that the three grace marks which had been awarded to the petitioner ought to have been adjusted in the subjects of Physics, Chemistry and Mathematics as a result of which the petitioner would have qualified in the examination for admission. There is no rule nor is any rule brought to our notice warranting such a practice to be observed by the respondents. In the absence of any rule, the aforesaid submission, therefore, cannot be entertained. 10. In respect of the rounding up of the marks, it was also urged before us that the Circulars issued by the examinees by the Higher Secondary Boards as well as by Dr.Babasaheb Ambedkar Marathwada University clearly indicate that the rounding up of the marks is to be done by the examiners. The aforesaid Circulars pertains to the instructions issued to the examiners while examining question papers in order to ensure that the marks in fraction should not be noted against a candidate but are rounded up to the next digit. The aforesaid Circulars are in no way germane to buttress the submission advanced before us by the learned Counsel for the petitioner. 9 11. Having considered the rival submissions advanced before us on behalf of the parties, according to us no case for interference is made out by the petitioner and consequently this petition which is sans merit is, therefore, summarily dismissed with no orders as to costs. ( A.V.POTDAR, J.) ( P.V.HARDAS, J.) vvr/4562.09wp