IMPORTANT POINT
The High Court was in error in taking the view that under sub-clause 2(d) under Note 1 of clause (3)(a) of Regulation 52 (under Maharashtra Secondary and Higher Secondary Board Act, 1965), the respondent No. 1 was entitled to the grace marks of 20 as respondent No. 1 was not eligible for it.

Headnote:(i) Maharashtra Secondary and Higher Secondary Board Act, 1965-Regulations under the Act-Sub-clause 2(d) under Note 1 of Clause 3(a) of Regulation 52-Whether confers benefit on the respondent No. 1 for awarding grace marks? (No)-High Court holding that it confers benefit is in error-Appeal allowed.
       Held : Regulation 52 refers to the passing marks which a candidate "must obtain" or "must secure". Clause (3)(a) which deals with grant of automatic condonation uses the words "shall be granted automatic condonation of marks". Similarly under Clause (b) of sub-clause (2) of Regulation 3(a) the words used are "shall also be granted" Clauses `c to `f only extend the grace marks upto 20. Under Note 2 sub clause (2) which deals with automatic condonation of marks, reference is to the marks "granted". The scheme of the Regulation is therefore quite clear and it clearly makes a distinction between marks "obtained" or "secured" and grace marks "granted". In the light of this, if we consider sub-clause (3) under Note 2 it would be apparent that the said sub-clause does not at all deal with grant of grace marks. Regulation 52 is a comprehensive provision and sub-clause (3) under Note 2 only deals with the grant of benefit of combined passing in the subjects Mathematics and Science. It begins with a non-obstante clause and lays down a special rule notwithstanding anything contained in Clauses (1), (2) and (3)(a) of Regulation 52. It clearly implies that even if a candidate would have otherwise failed having regard to the provisions of Clauses (1) and (2), despite grant of grace marks under Clause (3)(a), yet under sub-clause (3) of Note 2 he is entitled to the benefit of combined passing in the subjects Mathematics and Science, provided he has obtained not less than 105 marks in the aforesaid two subjects taken together, while obtaining not less than 38 marks in the subject or subjects of failure. We have already held that obtaining of not less than 38 marks refers to the marks actually obtained by a candidate in the examination on the basis of his performance, and without addition of grace marks. So construed sub-clause (3) of Note 2 does not confer any benefit on a candidate like respondent No. 1 who secured only 19 marks in the subject Mathematics, and therefore, does not fulfil the second condition. We have therefore no hesitation in holding that sub clause (3) of Note 2 confers no benefit on the respondent No. 1 since he is not eligible thereunder for the benefit of combined passing, having secured less than 38 marks in the subject Mathematics. The High Court was clearly in error in extending to the respondent No. 1, the benefit under the aforesaid provision. We, therefore, hold that the High Court was in error in allowing the writ petition of Respondent No. 1. Consequently, we allow the appeal and set aside the impugned judgment and order of the High Court and dismiss the Writ Petition filed by respondent No. 1. We are informed that the respondent later re-appeared in the examination and has been declared to have passed the examination. (Paras 12 and 13)
       (ii) Grant of grace marks in examination-A word of caution.
       Held : Before parting with the judgment we may observe that the grant of grace marks being a matter of concession and which tends to dilute academic standards, Regulations dealing with grant of grace marks should not be generously and liberally construed. We have noticed that several concessions are given to candidates by way of grace marks. A candidate may qualify under different Clauses of the Regulation for the grant of grace marks. It is doubtful if a candidate can claim grace marks under more than one Clause even if he may be eligible for the concession under several Clauses. It has been contended before us with considerable force that a candidate may be granted grace marks under only one of the Clauses under the relevant Regulation, and that in no case shall he be entitled to the award of grace marks under more than one Clause even if under the Regulation he may be eligible for grant of grace marks under more than one Clause. It is quite possible that a candidate may have taken part in games at the State level and may have also participated in the Republic Day Parade and in the President s Rally, which are covered by sub-clause (d), (e) and (f) of Clause (2) under Note 1. If the benefit under all the three clauses is extended to a failing candidate, it would really reduce the examination conducted by the Board to a mockery. (Para 15)

JUDGMENT

Bisheshwar Prasad Singh, J.-Special Leave granted.

2. The appellant, the Maharashtra State Board of Secondary Education is a Board constituted under the Maharashtra Secondary and Higher Secondary Boards Act, 1965. In this appeal, the appellant has impugned the judgment and order of the High Court of Judicature at Bombay, (Aurangabad Bench) dated September 3, 2001 in Writ Petition No. 3131 of 2001, whereby the High Court allowed the Writ Petition preferred by respondent No. 1 herein and directed the Board to declare the petitioner as having passed the examination. The High Court took the view that under sub-clause 2(d) under Note 1 of Clause (3)(a) of Regulation 52, the respondent No. 1 was entitled to the grant of 20 grace marks with the result that the marks obtained by him in the subject Mathematics would be 39, he having secured 19 marks in the examination. Consequently, the respondent No. 1 having obtained 39 marks in the subject Mathematics with the addition of grace marks, would be entitled to the further benefit under sub-clause (3) of Note 2 of Clause (3)(a) of Regulation 52, having secured more than 105 marks in the subjects Mathematics and Science taken together and therefore entitled to the benefit of combined passing in the subjects Mathematics and Science under the said provision.

3. We may first notice the facts which are not in dispute. Respondent No. 1, who was a student of Saraswati Bhuvan School took the Secondary School Certificate Examination conducted by the Aurangabad Divisional Board in March, 2001. On June 2, 2001 the results were declared but respondent No. 1 was declared to have failed, since he had obtained only 19 marks in the subject Mathematics as against a minimum of 52 marks which a candidate is required to obtain under the Regulation for passing in that subject. Respondent No. 1, then applied to the Board for the grant of 20 grace marks under sub-clause 2(d) under Note 1 of Clause (3)(a) of Regulation 52 on the ground that he had participated in sports at the State level. It appears that the respondent No. 1 had participated in the "Kho Kho" competition at the State level.

4. The application of respondent No. 1 was rejected and the decision was conveyed by the Divisional Secretary of the Aurangabad Division Board to the Head of the school stating that even with the addition of 20 grace marks, respondent No. 1 could not be declared to have passed, since he failed to secure 52 marks in the subject Mathematics, even with the addition of grace marks.

5. Aggrieved by the decision of the Board the respondent No. 1 preferred a Writ Petition before the High Court, wherein he claimed benefit under sub-clause 2(d) under Note 1 of Clause (3)(a) of Regulation 52 as also the benefit under sub-clause (3) of Note 2 of Clause (3)(a) of the said Regulation. In substance, his case was that after adding 20 grace marks to the marks actually obtained by him in Mathematic i.e. 19, he should be deemed to have obtained 39 marks in the subject Mathematics and therefore entitled to the benefit of combined passing in the subjects Mathematics and Science, since he had secured more than 105 marks in the subjects Science and Mathematics taken together. The High Court upheld the contention of respondent No. 1 which is challenged before us by the Board.

6. The Board has framed Regulations, and Regulation 52 lays down the standard for passing in a subject. A close scrutiny of Regulation 52 discloses that it lays down comphrehensively the rules relating to the minimum marks to be secured by a candidate for passing the examination, the grace marks which may be granted to a candidate in given circumstances, and the manner of calculation of such marks. However, before adverting to the provisions of the aforesaid Regulation, we consider it appropriate to notice the principles which the Court has to keep in mind while dealing with a case of this nature where grace marks are claimed under the relevant Regulations. It cannot be dis

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2002 Supreme(SC) 674

Cases Referred (1)