Allahabad Agricultural Institute v. Bipin Kumar — 1994 DIGILAW 566 (ALL)

JUDGMENT : - G.P. Mathur, J. 1. THESE Special Appeals have been filed by Allahabad Agriculture Institute against the common judgment and order dated October 15, 19 3 of the learned Single Judge by which seven Writ Petitions filed by the different students were allowed. 2. THE writ petitioners, who are students of B. Tech. (Ag. Engg.), B.Sc. (Ag.) and B.Sc. (Home Science) in Allahabad Agriculture institute, failed in more than two papers In their respective Part-1 Examination. Their request to appear in Second Examination having been Refused, they filed separate writ petitions praying that a writ of mandamus be Issued directing the appellant (Allahabad Agriculture: Institute) and University of Allahabad to permit them to appear in Second Examination of those papers in which they had failed. THE learned Single judge relying upon an alleged resolution of the Examination Committee, allowed the writ petitions and issued a direction that the petitioners should be permitted to appear in Second Examination in two papers after awarding grace mark in the third paper. The relevant provisions relating to Second Examination is contained in Chapter XXVI-A of the Ordinances of University of Allahabad which has been printed at page 442 of the Calendar of the University for the year 1987- 88. The heading of the Chapter shows that Ordinances no not apply to Medical and Engineering Examinations. During the course of hearing a controversy was raised as to whether B. Tech. (Ag Engg). in an Engineering Examination to which this Ordinance would not be applicable. Chapter IV of the Ordinances enumerates different Faculties of the University and Ordinance 2 of this Chapter mentions the subjects which are assigned to the Faculties of Science, Home Science, Agriculture, Agricultural Engineering and Agriculture Science are mentioned at SI. No. 8, 16, 17 and 18 respectively in this Ordinance (Page 345 of the Calendar). Ordinance 5 mentions the subjects which are assigned to the Faculty of Engineering and Agriculture Engineering does not find place there. The Registrar of the University has also filed an affidavit stating that the degree of Bachelor of Technology in Agriculture Engineering is Four Years degree course of the Faculty of Science of the University. It therefore, follows that examination for the degree of B. Tech. (Ag Engg.) is not an Engineering Examination and consequently Chapter XXVI-A of the Ordinances are applicable to it. 3. It therefore, follows that examination for the degree of B. Tech. (Ag Engg.) is not an Engineering Examination and consequently Chapter XXVI-A of the Ordinances are applicable to it. 3. ORDINANCE 1 of Chapter XXVI-A provides 'that a candidate taking any of the main examination listed in ORDINANCE 2 will be eligible to appear in the Second Examination subject to the conditions stated in later part of the chapter. The relevant provisions of the ORDINANCE 2 which have a bearing on the controversy involved is quoted below; "A candidate who : (a) has failed, (b) has partly failed to appear or (c) has passed but is dissatisfied with the marks awarded to him her at the Annual Examination in written papers may appear at the Second Examination in : (i) ............... (ii) One or more written papers of any one group of B.Sc. (Home Economics, Part I, Part II Examination and/or the practical within that group, provided that a candidate would be permitted to appear in the practical only in case he has failed or failed to appear in the practical and not for improvement of marks. (iii) One theory (written paper) and/or practical pertaining to any one paper in B Sc. (Home Science) Part I and Part II Examinations provided that a candidate would be permitted to appear in the practical only in case he has failed or failed to appear in the practical and not for improvement of marks. (iv) Any two written papers or two practicals or one paper and* one practical of the B.Sc (Ag.) Part I, Part II and Part III and B.Sc. (Ag. Engg) I Year. II Year, III Year and IV Year examinations, provided that a candidate would be permitted to appear in the practical only in case he has failed or failed to appear in the practical and not for improvement of marks. (v)............ (vi) ............ Provided that candidates of the undergraduate examination mentioned in Clauses (i) to (v) above, who have failed or failed to appear in written papers and/or practical In more than me subject or group of subjects or papers as provided in the prospectus, shall not be eligible to appear at the Second Examination." Sub-Clause (iii) of ORDINANCE 2 permits candidates to appear in one theory (written paper) and/or practical pertaining to any one paper. Sub-Clause (iv) permits candidates to appear in two written papers or two practicals or one paper and one practical. The proviso however, places a restriction that those undergraduate candidates who have failed in written papers and/or practical in more than one subject or group of subjects or papers shall not be eligible to appear in Second Examination. Therefore, a student can appear in Second Examination in two written papers or two practicals of the same subject but not of the two written papers or practicals of two different subjects. This ORDINANCE came up for consideration before a Division Bench in Km. Rashmi Tiwari v. University of Allahabad 1982 UP LB EC 302, and similar view was taken. Subsequently it has been reiterated by the Bench of Hon. R. M. Sahai, J. and Hon. Dr. R. R. Misra, J. in Writ Petition no. 23897 of 1987 (Mritunjay Prasad v. University of Allahabad). 4. THE next question which falls for consideration is whether the writ petitioners seek to appear in Second Examination in two papers of two different subjects or two papers of the same subject. Chapter XXXlX of the Ordinances deal with the course of study for different degrees and Part 'F' thereof relate to Degree of Bachelor of Technology for Agriculture Engineering page 503 of the Calendar). Ordinance 2 of this Part provides that the course of study for the Bachelor of Technology in Agriculture Engineering degree shall extend over a period of four academic years with University Examination to be called First, Second. Third and Fourth Years Examination at the end of first, second, third and fourth academic year respectively. Ordinance 4 provides that every candidate for the First Year Examination shall be required to pass in the subject mentioned at pace 554 of the Calendar. Similarly Ordinance 5, 6, and 7 describe the subjects which a candidate is required to pass in the Second. Third and Fourth Year Examination (Page 557 to 559 of the Calendar). A perusal of the Calendar would show that every paper in each academic year is in fact a separate subject. Therefore, in view of the proviso to Ordinance 2, the relief claimed by all the writ petitioners who are students of B. Tech (Ag. Engg) cannot be granted as they have failed in more than one subject. A perusal of the Calendar would show that every paper in each academic year is in fact a separate subject. Therefore, in view of the proviso to Ordinance 2, the relief claimed by all the writ petitioners who are students of B. Tech (Ag. Engg) cannot be granted as they have failed in more than one subject. Part 'B' of Chapter XXXIX gives the Ordinances for the Decree of Bachelor of Science/Home Science (Page 543 of the Calendar). Ordinance 2 thereof provides that the Course of study for the B.Sc./B.Sc. (Home Science) degree shall extend over a period of three academic year and there will be three examinations namely; Part-I Examination at the end of first academic year the Part-ll Examination at the end of second academic year and the Part III Examination at the end of third academic year. Ordinance 6 provides that every candidate for the B Sc./B.S c, (Home Science) degree course shall have to pass to each subject of each Part separately In theory and practical/viva-voce. This provision also makes it clear that with regard to B Sc (Home Science) course each paper is treated, as a separate subject. It therefore, follows that such of the writ petitions who are student of B.Sc (Home Science) and have failed in more than one subject are not entitled to appear in the Second Examination. 5. IT may also be mentioned here that the Registrar of the University has filed a Supplementary Affidavit in Special Appeal No. 892 of 1994 wherein it is averred that the Examination Committee of the University has taken a decision on May 13, 1994 in pursuance of the directions issued by this Court on April 22, 1994 in a group of writ petitions to the effect that each paper is a separate subject in B. Tech. (Ag Engg.) and B Sc. (Home Economics.) The claim of the writ petitioners that they have not failed in written papers or practical of more than one subject or practical of more than one subject or group of subjects cannot therefore, be accepted. 6. THE learned Single Judge has allowed the petitions on the ground that the Examination Committee has passed a resolution by which some candidates were allowed to appear in two papers and were awarded grace mark in third paper and therefore, the writ petitioners should also be given the same advantage. 6. THE learned Single Judge has allowed the petitions on the ground that the Examination Committee has passed a resolution by which some candidates were allowed to appear in two papers and were awarded grace mark in third paper and therefore, the writ petitioners should also be given the same advantage. THE manner in which the resolution has been placed on record is rather queer. It is averred in para 4 of writ petition no. 33243 of 1993 (Shaiju-George v. Alld. University) that the Principal of the Institution had issued a notice on 8th September, 1993, and a copy whereof has been filed as Annexure-III. THE notice has some bearing on the controversy involved and therefore, it is being quoted in extenso; Notice I have received the following resolution taken by the Examination Committee, of Allahabad University, Allahabad. "It was resolved that since the same candidates have been allowed to appear in two paper and awarded grace marks in third paper in the past the some practice be followed for those students and for future the provisions of ordinance be strictly followed for fresh students and it should be notified". I have taken the clarification of this resolution from the Registrar and according to this clarification this benefit will be available only to the students of Second, Third and Final Years of B Sc. Ag. and B. Tech. Agricultural Engineering classes. THE first year students of the above courses will not get this benefit this year and in subsequent years and the University Ordinances will be strictly followed in their case. In view of the above students are advised to fill the Examination Form for back examination according to the provision given in the resolution. However, 13th September 1993 will be the last date and after this date no applications will be accepted for back examination. Sd/- (H. Shepherd Principal) It may be noticed that this petition was filed in the Registrary on September 17, 1993 and was taken up for admission hearing on September 20, 1993 on which date three days time was granted to the learned counsel for Allahabad University find Allahabad Agriculture Institute to file counter affidavit. However, no such affidavits were filed and after hearing arguments in the other connected writ petitions, judgment was; reserved on September 23, 1993. This document was not filed in any other connected writ petitions. However, no such affidavits were filed and after hearing arguments in the other connected writ petitions, judgment was; reserved on September 23, 1993. This document was not filed in any other connected writ petitions. Since no counter affidavit was filed by either of the respondents, authenticity of the above quoted resolution of the Examination Committee of the University could not be verified. It may be noticed that in leading Writ Petition No. 28277 of 1993 (Bipin Kumar v. University of Allahabad) a counter affidavit has been filed by Dr. Shepherd, Principal of Allahabad Agriculture Institute which has been sworn on September 2, 1993 wherein a specific plea has been taken in para 13 and 24 that the petitioner having failed in more than two papers, he could not be permitted to appear in the Second Examination. It was also stated in para 29 that it was wrong to allege that as a matter of practice, the Principal of the Institution had been permitting those students who had failed in more than two papers to appear in the Second Examination and in fact whenever such permission was granted, it was only under the interim orders of the (Hon'ble High Court with a clear direction that the student may appear provisionally at their own risk. In the counter affidavit filed on behalf of the University which was sworn on September 6, 19V3, it was specifically assented that the petitioner having failed in more than two papers, he could roe be permuted to appear in the Second Examination. There is no reference to the resolution of Examination Committee in either of these affidavits. If the Principal of the Institute had really received a copy of such a resolution and issued a notice on its basis, there is no reason why he would not have disclosed the same. On the face of there affidavits, we are not inclined to [place reliance upon the document which has been filed as Annexure- III in writ petition No. 33243 of 1993. Even assuming that such a resolution was passed by the Examination Committee, its implications may be examined from another angle. The resolution clearly runs counter to the Scheme of the Ordinance and has the effect of not only amending the same but also wiping out the proviso appended at the end. Even assuming that such a resolution was passed by the Examination Committee, its implications may be examined from another angle. The resolution clearly runs counter to the Scheme of the Ordinance and has the effect of not only amending the same but also wiping out the proviso appended at the end. The provisions regarding Second Examination have been made in Chapter XXVI-A of the Ordinances of the University. Section 51 of the U. P. State Universities Act, 1973 (hereinafter referred to as 'Act') lays down that subject to the provisions of the Act and the Statutes the Ordinances may provide for any matter which by the Act or the Statutes is to be or may be provided for by the Ordinances. Sub-section (2) of this section lays down that without prejudice to the generality of provision of Sub-Section (1), the Ordinances shall provide for the matters enumerated from Clauses (a) to (c). Chapter XXVI-A of the Ordinance has been made in exercise of the powers conferred by Clause (c) of sub-section (2) of section 51 of the Act as it confers power to make Ordinance regarding the conditions under which students shall be admitted to the Examinations, degree and Diplomas of the University and shall be eligible for the award of such degrees and diplomas. The power to make new or additional Ordinances or to amend or repeal the Ordinances has been conferred upon the Executive Council under sub-section (3) of section 52 of the Act. Section 20 of the Act provides for the Constitution of the Executive Council and it consists of Vice Chancellor, Pro. "Vice-Chancellor. Dears of two Faculties, two Professors, Two Readers, Two Lecturers, One Principal of an associated College, four persons of academic eminence to be nominated by the Chancellor. Section 29 provides that there shall be an Examination Committee in the University, the constitution of which shall be as may be provided for in the Ordinances. It is thus clear that Executive Council Is an entirely different body from an Examination Committee and their constitution is also different. As shown earlier, the power to amend the Ordinances vests with the Executive-Council under section 52 (3) of the Act and not with the Examination Committee. It is thus clear that Executive Council Is an entirely different body from an Examination Committee and their constitution is also different. As shown earlier, the power to amend the Ordinances vests with the Executive-Council under section 52 (3) of the Act and not with the Examination Committee. Therefore, even if such a resolution was passed by the Examination Committee, it can have no legal existence in the eye of law and cannot be given effect to as It lends to amend the Ordinance. Therefore, the writ petitioners cannot be granted any relief on the basis of the aforesaid resolution of the Examination Committee. 7. THE Special Appeals are consequently allowed the judgment and order of the learned Single Judge is set aside and the writ petitions are dismissed. 8. LEARNED counsel for the writ petitioners has made a statement that some of the students were granted provisional admissions and after having appeared in the Second Examination they are studying in the higher classes. In order to protect their interest, we direct that the respondents shall be allowed to appear in the coming Examination for the class in which they had failed irrespective of the fact that they bad not attended theory or practical classes in the current academic Session.