' The relevant facts leading to the present Constitutional petition are that the petitioner appeared in the 2nd Annual Examination of BA. In the year, 1990. The result was shown later on, the petitioner waited for more than a year and thereafter, filed this petition which was admitted to hearing and notice was issued to the respondents who have appeared and contested the petition.
2. Learned counsel for the petitioner in support of the petition argued that it was the duty of the respondent to declare the result. Answer book of the Paper English A of the petitioner was not traceable then he was entitled to benefit of average marks in accordance with Regulation 6. On the other hand, learned counsel for the respondents argued that the result was declared on 8th of September, 1991 therefore, the petitioner should have promptly follow the matter and got his result declared but he did not move till 22nd of October, 1992 when he made an application Annexure 'B' with the writ petition. It is added that since by the time the answer books of the 2nd Annual Examination 1990 have already been disposed of therefore, nothing could be done. The argument of the learned counsel was concluded with the submission that as the petitioner did not move in time, therefore, he should suffer and the respondent could at the best arrange for special examination in Paper English 'A'.
3. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as the relevant provision of the regulation. It is worthwhile to refer to Regulation 6 before proceeding any further the same reads as under:-- "If a candidate's paper is lost after having been received by the Superintendent of the Examination Centre or by one of his assistants, and if he passes in all other subjects of the examination, he may be required to appear in that one paper which is lost on a date fixed by the Controller of Examination, and if he obtains pass marks he shall be deemed to have passed the examination. In case of dispute as to whether a candidate's paper was duly received or not, the finding of the Controller of Examinations, subject to .The approval of the Vice-Chancellor, shall be final: ' Provided that if an answer book/s received by an Examiner is/are lost before or after evaluation average of the marks obtained by the candidate in other papers in which he has appeared shall be awarded to him in the said Paper. The candidate shall, however, have the option either to avail the average of the marks or to reappear in the Paper: ' Provided further that the benefit of grant of average marks will not be given to candidates in cases of re-checking of answer-books after declaration of their results, if their answer-book/s is/are lost at the time of re-checking. They will however, have the option to reappear in the paper/s in the next examination, if otherwise eligible. The candidate will also be allowed to claim refund of fee for re-checking."
4. It is clear from the above regulation that the case of the petitioner is not covered by main regulation but it is fairly and squarely covered by proviso 1 to Regulation 6 as reproduced above.
The Controller of Examinationer has failed to give any findings as to the point of time when the answer book of the petitioner was lost. The conduct of the respondents is fair. Their learned counsel did not even try to concede that when the matter was taken up it was not possible to fix the responsibility. The petitioner is entitled to benefit of average marks for this reason also. It is the statutory obligation of A the respondents to declare the result and they cannot shift that responsibility to the petitioner, therefore, inaction on part of the respondent is of no legal consequence.
' The upshot of this discussion is that this petition is accepted and the petitioner is held entitled to benefit of average marks in terms of proviso 1 to Regulation 6. There is no order as to costs.