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1992 DIGILAW 366 (GUJ)

JAYESH H. PATHAK v. GUJARAT UNIVERSITY

1992-11-19

R.A.MEHTA

body1992
R. A. MEHTA, J. ( 1 ) THE petitioner is aggrieved by the non-declaration and cancellation of the result of the examination in M. A. Part-II held in May and June 1992. In para 4 of the petition it is stated as under: The petitioner submits that he was suffereing from Allergic Bronchitis and Allergic Asthmatic Bronchitis and therefore he was unable to attend the lectures at M. A. Part II regularly and therefore some absentism was noted at University School of Social Sciences. A medical certificate was given by the petitioner to the Director School of Social Sciences and the Absentism of the petitioner was thus explained to the Director of the School of Social Sciences. The petitioner submits that despite the aforesaid disease he had attended certain lectures. The exact figure of presence of the petitioner is not known to him which may be called upon from the respondent. ( 2 ) IN the affidavit in reply it is contended that the petitioner has not put in the requisite attendance for the 1st and 2nd terms of the academic year and his presence is as follows: -- lectures delivered Minimum Lectures attended Requirement -- 1 term 90 60 06 2 term 139 93 60 -- it is therefore submitted that the petitioner has put in less than 25 percent of the attendance in the first academic terms and his total attendance in two terms is only 66 against the minimum requirement of 153 out of 189. It is therefore submitted that in view of the provisions of Ordinance 83 (B) of the Gujarat University the name of the petitioner is deemed to stand cancelled from the list of candidates appearing at the relevant examination and in case of his appearance at the examination the result shall not be declared. Ordinance 83 (B) reads as under:" No candidate for post-graduate degree examination shall be allowed to appear at the said examination unless : 1 he/she has attended minimum number of lecture in each term as per P. G. Rules in this behalf. OR the deficiency if any in attendance has been condoned as per P. G. Rule 2 The attendance reports of the candidates have been received in accordance with P. G. Rule. OR the deficiency if any in attendance has been condoned as per P. G. Rule 2 The attendance reports of the candidates have been received in accordance with P. G. Rule. In the event of non-compliance of any one or more of the conditions staled above the name of the candidate shall be deemed to stand cancelled from the list of candidates appearing at the relevant examination and thereupon the candidate concerned shall not appear at the examination and in case of his/her appearance at the examination the result shall not be declared. The examination fees paid by such candidate shall be refunded in full". ( 3 ) THE learned counsel for the petitioner submits that the deficiency ought to have been condoned and secondly it is submitted that once he is having been alleged to appear in the examination the result cannot be with-held. ( 4 ) BOTH these contentions have been squarely answered against the petitioner by the Divisions Bench of this Court in the case of Pradip Rasiklal Shukla vs. The Gujarati University and Ors. reported in AIR 1985 (Gujarat) page 99 6. In Para 9 of the judgment the Division Bench considered ordinance 83 and P. G. Rule regarding condonation of deficiency in attendance and relevant provision provides for condonation of deficiency in attendance. It provides that a Professor incharge or Head of the P. G. Centre can condone the delay on medical grounds if the candidate was having attendance of not less than 50% the total number of lectures delivered during the term and the Vice-Chancellor was empowered to condone the deficiency in attendance on account of illness or special reasons provided the candidate had attended not less than 40% or more of the total number of lectures delivered in the term. In the case referred to above the deficiency in both terms taken together does not exceed 15 per cent. But in the present case before me the deficiency shows that it is not within the power of any authority to condone such deficiency. Therefore no authority in the University could have condoned the deficiency. Therefore the first contention of the petitioner fails. ( 5 ) THE second contention is that as the petitioner was allowed to appear in the examination his result cannot be cancelled. Therefore no authority in the University could have condoned the deficiency. Therefore the first contention of the petitioner fails. ( 5 ) THE second contention is that as the petitioner was allowed to appear in the examination his result cannot be cancelled. In this connection learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Krishnan vs. Kurukshetra University reported in AIR 1976 (SC) 376 where in the context of Ordinance of Kurukshetra University the Supreme Court ruled that once the candidate is allowed to take the examination rightly or wrongly then the statutes which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear in the examination. This judgment was also considered by the Division Bench in Pradips case (Supra) and it was held that the Supreme Court had interpreted a specific provision of Kurukshetra University where it was clear that the power of the University to withdraw provisional admission to examination on the ground of not attending prescribed course of lectures was before the examination commenced and there was no power under the said Ordinance of Kurukshetra University to withdraw the certificate after a student was allowed to appear in the examination and the Division Bench held that the power of Gujarat University is in very wide term in this behalf and is not limited as was in the case of Kurukshetra University. The later part of the provision enjoins that even in the event of appearance of such a candidate who has not duly kept his terms his name shall be deemed to be cancelled and in case of his appearance at the examination the result shall not be declared. In view of the express provision of the Gujarat University Ordinance the Supreme Court judgment is not applicable in the present case. ( 6 ) THE learned Counsel further submits that the petitioner has not been given any opportunity of hearing and the deficiency in attendance is not proved. It is for the petitioner to show that he has attended the minimum number of lectures in each term as per P. G. Rules. In the present case admittedly the petitioner has not attended the requisite lectures. It is for the petitioner to show that he has attended the minimum number of lectures in each term as per P. G. Rules. In the present case admittedly the petitioner has not attended the requisite lectures. The petitioner is not even aware of his attendance and deficiency. In fact in para 4 of the petition he has stated that he does not know the exact figure of his presence and the same may be called for from the respondents. The respondent has furnished the details and they are not disputed. In view of this clear position of law the name of the petitioner is deemed to have cancelled and his result cannot be declared. Thus there are no merits in any of the contentions raised by the petitioner. Hence this petition fails and the same is dismissed. Petition dismissed. .