Runulata Mangual Vs. Controller of Examination, Council of Higher Secondary Education and anr. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 109 cab 17. after the result was declared as she was declared to be unsuccessful, she wanted to know her marks. since the petitioner did not appear in economics she was declared to have failed. it has been further averred that since the petitioner was found to be absent in economics which was one of the optional papers, the petitioner was declared to have failed. there is some amount of controversy between the stand taken by the principal as well as the stand taken by the council of higher secondary education so far as the subject economics is concerned vis-a-vis the petitioner, inasmuch as even though the records of the college indicate that the petitioner had never studied economics as a subject, but according to the council the petitioner had offered economics as one of the three optional subjects to be examined.order1. the petitioner had appeared at the plus-ii arts examination during the year 1994 from choudwar college centre bearing roll no. 109 cab 17. after the result was declared as she was declared to be unsuccessful, she wanted to know her marks. it transpires that even though the petitioner had appeared in the subjects of history, political science and logic as the three optional subjects, but the council of higher secondary education did not accept logic to be the third optional subject and, on the other hand, took economics to be the third optional subject. since the petitioner did not appear in economics she was declared to have failed. the petitioner asserted that she had appeared in the examination with history, political science and logic as the three optional subjects for which she was permitted by the principal of the college. it is further averred that she had never studied economics in the college and education was her 4th optional subject.2. the principal of the college has filed a counter affidavit taking the stand that when the computerised nominal roll (c. n. r.) from the council of higher secondary education along with the admit card of the petitioner was received, it was found that the subjects mentioned for the petitioner to be examined were history, political science and economics, as the optional subjects. but on verification of the college records since it was found that the petitioner had never been allotted economics nor she had attended any class in economics and as the examination was approaching, the principal allowed the petitioner to appear with logic as her 3rd optional subject and the admit card was corrected accordingly.the council of higher secondary education has also filed a counter affidavit taking the stand that since the petitioner had offered history, political science and economics as optional papers with logic as the extra optional subject and since the petitioner did not appear in economics, the question of declaring the petitioner to have passed on the basis of logic as the 3rd optional subject does not arise. it has been further averred that since the petitioner was found to be absent in economics which was one of the optional papers, the petitioner was declared to have failed.3. in view of the controversies between the parties, the only question that arises for consideration is whether the petitioner was rightly allowed to appear with logic as one of the optional subjects and on that basis whether her result could by directed to be declared. there is some amount of controversy between the stand taken by the principal as well as the stand taken by the council of higher secondary education so far as the subject economics is concerned vis-a-vis the petitioner, inasmuch as even though the records of the college indicate that the petitioner had never studied economics as a subject, but according to the council the petitioner had offered economics as one of the three optional subjects to be examined. be that as it may, even according to the stand taken by the council of higher secondary education, logic was also one of the subjects in which the petitioner was to be examined though according to the council it was the 4th optional subject. in view of the averments made by the principal to the effect that since the principal found certain discrepancy so far as the subjects in which the petitioner had been permitted to be examined in the c. n. r. and the college records and the principal having permitted the petitioner to appear with logic as the 3rd optional subject, which was also one of the subjects offered even as per the stand taken by the council, though according to the council it was a 4th optional subject we direct that the petitioner's result be declared treating logic to be the third optional subject. to avoid any confusion, we direct that the petitioner's result be declared with history, political science and logic as the three optional subjects together with all compulsory papers in which she was required to appear. the result be declared within one month from the date of receipt of our order.this writ application is accordingly allowed.

Judgment:
ORDER

1. The petitioner had appeared at the Plus-II Arts Examination during the year 1994 from Choudwar College Centre bearing Roll No. 109 CAB 17. After the result was declared as she was declared to be unsuccessful, she wanted to know her marks. It transpires that even though the petitioner had appeared in the subjects of History, Political Science and Logic as the three optional subjects, but the Council of Higher Secondary Education did not accept Logic to be the third optional subject and, on the other hand, took Economics to be the third optional subject. Since the petitioner did not appear in Economics she was declared to have failed. The petitioner asserted that she had appeared in the Examination with History, Political Science and Logic as the three optional subjects for which she was permitted by the Principal of the College. It is further averred that she had never studied Economics in the College and Education was her 4th optional subject.

2. The Principal of the College has filed a counter affidavit taking the stand that when the Computerised Nominal Roll (C. N. R.) from the Council of Higher Secondary Education along with the Admit Card of the petitioner was received, it was found that the subjects mentioned for the petitioner to be examined were History, Political Science and Economics, as the optional subjects. But on verification of the College records since it was found that the petitioner had never been allotted Economics nor she had attended any class in Economics and as the examination was approaching, the Principal allowed the petitioner to appear with Logic as her 3rd optional subject and the Admit Card was corrected accordingly.

The Council of Higher Secondary Education has also filed a counter affidavit taking the stand that since the petitioner had offered History, Political Science and Economics as optional papers with Logic as the extra optional subject and since the petitioner did not appear in Economics, the question of declaring the petitioner to have passed on the basis of Logic as the 3rd optional subject does not arise. It has been further averred that since the petitioner was found to be absent in Economics which was one of the optional papers, the petitioner was declared to have failed.

3. In view of the controversies between the parties, the only question that arises for consideration is whether the petitioner was rightly allowed to appear with Logic as one of the optional subjects and on that basis whether her result could by directed to be declared. There is some amount of controversy between the stand taken by the Principal as well as the stand taken by the Council of Higher Secondary Education so far as the subject Economics is concerned vis-a-vis the petitioner, inasmuch as even though the records of the College indicate that the petitioner had never studied Economics as a subject, but according to the Council the petitioner had offered Economics as one of the three optional subjects to be examined. Be that as it may, even according to the stand taken by the Council of Higher Secondary Education, Logic was also one of the subjects in which the petitioner was to be examined though according to the Council it was the 4th optional subject. In view of the averments made by the Principal to the effect that since the Principal found certain discrepancy so far as the subjects in which the petitioner had been permitted to be examined in the C. N. R. and the College records and the Principal having permitted the petitioner to appear with Logic as the 3rd optional subject, which was also one of the subjects offered even as per the stand taken by the Council, though according to the Council it was a 4th optional subject we direct that the petitioner's result be declared treating Logic to be the third optional subject. To avoid any confusion, we direct that the petitioner's result be declared with History, Political Science and Logic as the three optional subjects together with all compulsory papers in which she was required to appear. The result be declared within one month from the date of receipt of our order.

This writ application is accordingly allowed.