In cases where the answer books of a qualifying paper are missing, the court may allow the candidate to re-appear in the said subject or award marks in the missing paper on an average basis.

Heard Mr. Atul Chandra, on behalf of the petitioner and Mr. R.M. Prasad, G.P. III, for the State.

2. Pursuant to advertisement no. 11 of 1985 issued by the Bihar State Subordinate Services Selection Board, the petitioner was a candidate in the 'Sachivalay Evam Sanlagn Sahayak Parikcha'. The examination was held in three papers, namely, Hindi, Precis Writing and General Knowledge. Of the three, Hindi was only a qualifying paper, that is to say; though it was imperative to secure the pass marks in that paper, the marks obtained in Hindi were not to be added in the aggregate for determining the candidate's position in the merit list which was determined on the basis of his marks in the remaining two papers of Precis Writing and General Knowledge. The examination in question was held on November 21 and 22, 1987. On 21.11.1987 the examination in Hindi paper was in the second sitting (2 P.M. to 5 P.M.), On 22.11.1987 Precis Writing was in the 1st sitting (10 A.M. to 1 P.M.) and General Knowledge in the second sitting (2 P.M. to 5 P.M.).

3. On the publication of the final results the petitioner's name was not included in the list of the selected candidates. On obtaining the mark-sheet the petitioner was dismayed to find that he had been shown absent in the in the General Knowledge paper. His contention is that he appeared in all the three papers and he has been wrongly shown absent in the General Knowledge paper, held on 22.11.1987 during the second sitting.

4. When his representation before the Board did not yield any result the approached this Court for the redressal of his grievances.

5. In view of the assertion of the petitioner that he appeared in the said examination, we by our order dated 17.8.1990 called for the attendance sheet of the examinees for the examination held on 22.11.1987. It may be pointed out that, as stated above, the papers of Precis Writing and General Knowledge were on the same date, i.e., 22.11.87. We found it highly unlikely that the petitioner having participated in the Hindi examination on the previous day and having also appeared in the paper of Precis Writing on 22.11.1987 would not appear in the second sitting on that very day. In view of the repeated assertions by the petitioner that he had appeared in the General Knowledge paper and he has been wrongly marked as absent we directed for the production of the attendance sheet of 22.11.1987 from the Board, No attendance sheet was produced before us.

6. A counter-affidavit has been filed on behalf of the Board in which the Board seems to have presumed that the petitioner did not appear in the examination because his answer book in that paper was not traceable and, accordingly, in the general register of marks he had been shown as absent in General Knowledge paper. In paragraph no. 6 of the counter-affidavit the Board has offered to re-examine the petitioner in General Knowledge paper since it is stated that there is no provision for average marking in their statute. Our attention has also been drawn to orders passed in C.W.J.C. No. 1111 of 1990 and 1768 of 1989 wherein it is stated, under similar circumstances this Court directed the Board either to hold re-examination or to award marks in the missing paper on average basis.

7. Similar cases have earlier come to our notice in which the body entrusted with the test of holding the examination having lost a candidate's answer books simply showed the; candidate absent in that paper. It is unfortunate that such incidents seem to be on an increase and are coming to our notice recurrently.

8. The question, therefore, is what course the Court would adopt in such cases. In the case of Kumar Rashmi Bala Saxena & ors. v. Jiwaji University, Gwalior & ors. (reported in A.I.R. 1989, page 181) where on repeated directions of the Court the answer book could not be produced, the Court in the interest of justice directed average marking in that answer book. We think in some cases where the answer books of the qualifying pap