IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5580 of 2010 BRIJESH KUMAR, S/O SHRI KAMESHWAR GUPTA, R/O VILLAGE-KHAJURI, P.S.-ROHTAS, DISTRICT-ROHTAS AT PRESENT POSTED AS PRIMARY TEACHER, KENDRIYA VIDYALAYA NO.2 ITANAGAR (A.P.) ………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE DIRECTOR, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 2. THE VICE CHANCELLOR, NALANDA OPEN UNIVERSITY, PATNA. 3. THE PRO VICE CHANCELLOR, NALANDA OPEN UNIVERSITY, PATNA. 4. THE REGISTRAR, NALANDA OPEN UNIVERSITY, PATNA. ……………………RESPONDENTS. ----------- For the Petitioner : Mr.Shaishav Kumar, Adv. For Res. Nos.2,3&4 : Mr.V.B.Ambastha, Adv. and Mr.Bharat Bhushan, Adv. For Respondent no.1: SC-XIII. ------------ 2 06.12.2010 Petitioner is in service under Kendriya Vidyalaya Organization. At the relevant time, he was posted at Kendriya Vidyalaya at Itanagar. To improve his qualification, he applied for his admission in M.A. course with Nalanda Open University situated in Patna, Bihar. He completed his course and he appeared in the examination. However, since he was assigned with election duty he could not appear in paper-II and paper-III. As such his result was declared, without marks of paper-II and paper-III, in which he secured 54.75% marks. While he was 2 pursuing his Post Graduation course with the said University he had applied for appearing in UGC sponsored National Eligibility Test (NET) examination as an appearing candidate for Post Graduation. He cleared the NET examination. However, for getting the certificate of having qualified in the NET examination minimum 55% marks was required in the Post Graduation. Petitioner was having only 54.75% marks as he had not appeared in paper-II and paper-III because of which the marks of paper-II and paper-III could not be added to his result. Hence he was ineligible to get the certificate of having cleared NET. The submission of learned counsel for the petitioner is that had the petitioner appeared in the two papers, marks of the same would have been added in his result and he would have definitely secured more than 55% marks in M.A. making him eligible for issue of certificate of having cleared the NET examination. Learned counsel for the petitioner also submits that had he been declared fail on account of his non- appearance in two papers, under the Regulations of the University he could be 3 allowed to appear in the next M.A. examination and he could secure higher marks in Post Graduation to make him eligible for the NET certificate. He submits that the petitioner could not appear in the two papers due to reasons beyond his control, as under the orders of the Election Commission of India he was assigned election duty which he could not avoid lest he would have been proceeded against for violation of the orders. In the circumstances, the petitioner has neither the remedy of appearing again in the M.A. examination nor has remedy to clear those papers with the permission of the University so that his percentage may enhance and he may become eligible for the NET certificate. Learned counsel appearing for the University submits that since the petitioner had not appeared in the two papers his result was declared on the basis of the marks obtained by him in the remaining papers. He also submits that now that the petitioner has been declared pass on the basis of his marks obtained by him in the remaining papers he cannot be allowed to appear in the subsequent 4 examination to improve his result. He also submits that the reasons for not appearing in the two papers are not of concern of the University. Petitioner is in a Catch-22 situation. He could not avoid the orders of the Election Commission because of which he could not appear in the paper-II and paper- III of the M.A. examination. The result having been published, inspite of his non- appearance in those papers, he cannot appear in the subsequent examination of M.A. or any examination of those two papers so that his percentage of marks may increase to make him eligible for the NET certificate. Clearly the petitioner was not at fault because he had no alternative than to obey the orders of the Election Commission. It may be correct that the Regulations of the University do not provide for a candidate to appear in the subsequent examination to improve his result, but surely the Vice-Chancellor of the University can find out a way to remedy the wrong suffered by the petitioner for no fault of his. Learned counsel for the petitioner 5 submits that the petitioner was a candidate of session 2007-09. On instructions, he submits that from session 2008-2010 the University has changed the Regulation by providing that the candidates who remain absent in some papers shall be declared fail to enable them to appear in the subsequent examination under the Regulations. He submits that if this benefit can be extended to the petitioner also, the petitioner will be able to appear in the next M.A. examination and thus will secure higher marks for the purpose of NET certificate. Learned counsel for the petitioner points out that, for this purpose, the petitioner has already filed representations before the Vice-Chancellor of the University, copies whereof are Annexures- 6 and 7 series. In the circumsances, this Court feels it appropriate that the Vice-Chancellor of the University considers the case of the petitioner, applies his mind to the circumstances under which the petitioner could not appear in two papers and finds out a way to remedy the wrong suffered by him for no fault of his. The Vice-Chancellor shall 6 consider the matter in right earnest and shall take a final decision and communicate the same to the petitioner preferably within a period of one month from the date of receipt/production of a copy of this order. The writ application is disposed of with the aforesaid observations and directions. Arvind/ ( J. N. Singh, J.)