1. Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, a direction is sought to the respondents to issue the result and degree of Second Division of B.Sc after including one grace mark in the subject of Physics.
2. Facts necessary for disposal of petition in hand are that petitioner was the student of B.Sc in Degree College Abbasspur, which was under the supervision of University of Azad Jammu and Kashmir. It is further submitted that petitioner passed his B.Sc examination in year 2018 by obtaining 404 marks out of 900. The University of Azad Jammu and Kashmir has awarded the petitioner one grace mark in subject of physics (theory) but while counting total marks, the same was not included in the result card / degree, due to which, petitioner could not obtain second division, however, according to law dealing the university, every candidate is entitled for five grace marks but the Azad Jammu and Kashmir University ignored the petitioner malafidely, hence, while allowing the petition in hand, direction be issued to the respondents to issue degree of second division of B.SC after including one grace mark in the subject of Physics (theory).
3. The writ petition has been resisted by the respondents by filing written statement, wherein, they have refuted the claim of the petitioner.
4. In the written arguments filed by the learned counsel for petitioner, it is submitted that one grace mark was awarded to the petitioner but while counting as a whole, the said number was not included, due to which, petitioner was deprived of from second Division, hence, respondents be ordered to include one grace mark in whole counting and from adding one grace higher division itself is improved.
5. In written arguments filed by learned counsel for respondents, it is submitted once candidate obtains grace mark in any subject, he / she is not entitled to be awarded the grace marks for improving division. He submitted that admittedly petitioner was awarded one grace hence, he is not entitled for further grace marks, so, writ petition is requested to be dismissed.
6. I have considered the arguments filed on behalf of the counsel for parties, I have also gone through the record of the case made available at the file.
7. The claim of the petitioner is that the one grace mark given in the subject of physics (theory) be counted in total marks and respondents be ordered to issue degree of B.SC in Second Division.
8. Form perusal of Pass Result Intimation annexed as "PA", it reveals that petitioner has obtained 52 marks out of 160 in the subject of physics (theory), which comes to 32.5 % and in such a situation, petitioner becomes fail but the official respondents while awarding one grace marks show him successful candidate. Clause 9 Chapter 14 of the Azad Jammu and Kashmir University deals with the matter in hand, which is reproduced as under:-- "The minimum number of marks required to pass this examination shall be 33% in each subject, whether compulsory or elective (separately in written and practical; provided that if a candidate fails by a margin of 5 marks, he may be declared successful. These concessional marks may be spread over if a candidate is failing in more than one subject: Provided that if a candidate misses first or second division by 5 marks or less he shall be awarded grace marks upto a maximum of 5 and placed in the first division or second division as the case may be. A candidate who is declared successful after getting grace marks shall not be given grace marks for being placed in a higher division."
9. From perusal of aforesaid reproduction, it is crystal clear that a candidate, who avail the benefit of grace mark for passing any subject, is not entitled for grace marks in order to improve higher division, in the matter in hand, it is admitted position that one grace mark has been given to the petitioner but while counting the marks of all the subjects such one grace mark has not been included. Same like proposition came under consideration before the apex Court of Azad Jammu and Kashmir in case titled "University of Azad, Jammu and Kashmir (The Agency) through Vice Chancellor, Muzaffarabad and 3 other vs. Mohtasib (Ombudsman) of the Azad State of Jammu and Kashmir, Muzaffarabad, and 2 others" reported as 2019 YLR 373, wherein, it was observed that grace marks given for passing the subject, will be counted in total marks. Relevant observation is as under: "A perusal of the above would show that minimum passing marks are 33% in each subject and if a candidates fails by a margin of 5 marks, he may be declared successful. Under proviso to regulation 9 reproduced above, it is provided that a candidate who is declared successful in any of the subject after getting grace marks, will not be given grace marks again for being placed in a higher division. In our estimation, this provision has been mis-interpreted by the appellants, herein.
10. A perusal of the record reveals that the private respondents, herein, has secured 64 marks out of 200 in the paper of the English Language. The total calculation of the marks comes to 358 marks out of 800. Two marks have admittedly been given to her as grace marks in the subject of English Language to declare her successful in that subject but astonishingly these two marks have not been included in the total marks, after addition of these to marks, her total marks comes come to 360 out of 800 marks which makes the percentage as 45% and she becomes entitled to be placed in second division, therefore, grant of additional 5 marks for awarding the B.A second class degree were not at all necessary. Hence, the proviso to regulation 9 was not attracted in this case. We are afraid to accept the argument of the learned Advocate that grace marks given by the University cannot be counted towards the total marks. Now law has been cited in this regard by the learned Advocate. The private-respondents herein has been declared as successful in the paper of English Language after awarding 2 marks, hence, non-inclusion of these 2 marks in the final result and refusal to grant 2nd class degree of B.A is not justified."
11. It is an admitted position that the one grace mark has been given to the petitioner for declaring successful in the subject of physics (theory) and in light of guideline provided by the Apex Court of Azad an Jammu and Kashmir in above referred case, the grace marks will be counted in whole counting. Moreover, the other claim of the petitioner is that respondents be ordered to issue degree of B.Sc 2nd Division has force for the reason that though it is admitted that for improving degree 5 grace marks is available for those candidates who has not availed the opportunity of grace marks in passing any subject but in the matter in hand, petitioner failed in one of the subject and for passing the same one grace mark was given, hence, after availing opportunity of one grace mark, grace marks for improving higher division cannot be awarded. Furthermore, after including one grace mark in whole counting the marks of the petitioner comes to 405 out of 900, which makes 45% and he becomes entitled to have degree of 2nd Division, hence, petitioner is entitled to the equitable relief of writ jurisdiction.
12. The crux of the above discussion is that writ petition in hand is accepted and the official respondents are directed to issue result / degree of B.Sc 2nd Division to the petitioner after including one grace given in subject of physics (theory) in total counting/marks.