( 1 ) THE appeal is taken up and summarily disposed of since the parties have argued at full length and it is a pure question of construction. ( 2 ) THE writ petitioner-appellant claims to have been entitled to appear as an ex-student for the b. A.-III final examination in the year 2003, but he was not permitted so to appear by the respondent-University. Accordingly, this litigation started. ( 3 ) TO understand the problem, one has to bear in mind that the old days, when a person could appear as a private candidate year after year as long as he chose, are now unfortunately gone. The University puts a restriction upon the possible number of appearances permitted to a student for the purposes of clearing examinations like the final graduation examination. ( 4 ) THE University of Gorakhpur, which is the only one concerned before us does not permit private students to appear at all. Appearance is restricted to regular students and to ex-students. The writ petitioner cleared the first year and the second year examinations, but got struck with the third year examination. He first appeared for the two papers in the third year in 1998. He cleared one paper, but failed in English. ( 5 ) AS his aggregate marks were above the aggregate pass marks, he was permitted to take the english paper as a simple back paper in 1999. He failed again. ( 6 ) THE University Ordinances permit a person to re-appear as an ex-student even after his first appearance and failure as a regular candidate, but such permission is limited to the ceiling number of three, those three being three consecutive examinations held immediately after the students first appearance and failure. ( 7 ) THE Rule in question is Rule 2 (ii), which states as follows : "a candidate--may reappear as an ex-student : (ii) at other examinations without fulfilling the requirement of admission and attendance ; provided his application for permission to reappear at the examination is duly forwarded by the dean/head/principal concerned; and provided further that this facility shall not be available in more than three consecutive examinations held immediately after his first appearance and failure as a regular candidate in that examination. " ( 8 ) RELYING upon the aforesaid permission, the candidate tried his luck in 2000 and failed badly. " ( 8 ) RELYING upon the aforesaid permission, the candidate tried his luck in 2000 and failed badly. There was no question of taking any back paper as he had apparently failed, either in both the subjects or had failed in one subject and had failed to procure aggregate pass marks or more marks than that. ( 9 ) IN 2001, the candidate appeared again. This time he again cleared one paper like he had done in 1998, but the failed subject this time was Mathematics instead of English as was the case in 1998. ( 10 ) HE took the back paper for Mathematics in 2002 and failed again. ( 11 ) WHEN he wanted to take yet another chance in the year 2003, according to him the last and the third chance yet left open to him as an ex-student, the University joined issue and did not permit him to appear. ( 12 ) THE case of the University is that after his first appearance and failure, more than three years had gone by and in these three years three regular consecutive examinations had been held by the university. Thus, the three possible examinations in which he could have appeared as an ex-student are already over and he cannot have yet another chance. He would thus not ever be a gorakhpur graduate. ( 13 ) THE appellant has argued otherwise, but to be very frank and fair, the Court own thoughts have decided this case more than the arguments made at the bar. ( 14 ) BEFORE giving our reason why we are of the opinion that the candidate should be allowed to appear in all two papers in the year 2006 and for back paper in 2007 should he fail in only one and secure pass marks or more than that in the aggregate, we set out the Rule in the University ordinances for back papers, and it is as follows : "b. (i) A candidate who has appeared at B. A. /b. Sc. /b. Com. Part I, II or III examination and has obtained minimum pass marks in the aggregate under the relevant ordinances and has failed in not more than one subject shall have the option to appear again in that examination as an ex-student in all the subjects or in that subject alone in which he had failed. /b. Com. Part I, II or III examination and has obtained minimum pass marks in the aggregate under the relevant ordinances and has failed in not more than one subject shall have the option to appear again in that examination as an ex-student in all the subjects or in that subject alone in which he had failed. In case he chooses to appear in only one subject the marks obtained by him in other two subjects in the earlier examination shall be carried forward. After passing the examination such a candidate shall be eligible to get division. " ( 15 ) FOR determining the entitlement of the writ petitioner, the first point to determine is when was his first appearance and failure as a regular candidate. ( 16 ) IN our opinion, his first appearance was in 1998, but his first failure as a regular candidate was in 1999. Thus, his first appearance and failure as a regular candidate was in 1998-1999. It is impossible to have a second opinion in this regard, for, if, say, he passed in the English back paper in 1999, he would have passed in 1999 and not in 1998. As such, he must have failed in 1999 also as one cannot pass in one year and fail in another year for the very same examination taken in one particular year. ( 17 ) THE next point is what were the three consecutive examinations held immediately after 1999 and when were those held. ( 18 ) HIS first attempt out of three extra attempts permitted was over in 2000. No issue arises in this regard, as he failed in both the two papers, which were to be taken in the final i. e. Mathematics and English. ( 19 ) HE took his second extra attempt in the year 2001 and failed in Mathematics. The back paper was taken in 2002. ( 20 ) IN our opinion, 2001-2002 had constituted for the appellant one examination and not two examinations. In similar manner, 1998-1999 had constituted one examination and his first and only attempt as a regular candidate. According to back paper rules, an examination can finish for a particular candidate in one year or have a span over two years. For the writ petitioner, the second extra attempt had its span over two years and it was 2001-2002. In similar manner, 1998-1999 had constituted one examination and his first and only attempt as a regular candidate. According to back paper rules, an examination can finish for a particular candidate in one year or have a span over two years. For the writ petitioner, the second extra attempt had its span over two years and it was 2001-2002. ( 21 ) HE was permitted to take the back paper in the year 2002. This very permission granted by the University would be inconsistent with the extreme hard-line submission made by the university before us. ( 22 ) IT was their argument that the first appearance and failure of the candidate was in 1998, as he did not pass in that year. If that be so, and if it is linked with their argument, that three consecutive examinations held thereafter necessarily referred to the three consecutive years, which elapsed thereafter, then and in that event, the writ petitioner could have appeared in the examinations for the years 1999, 2000 and 2001 only, but he was permitted to appear also in the back paper in 2002. ( 23 ) IT is, thus, quite clear that after taking the second extra attempt in 2001-2002, the writ petitioner still had the third and the last, chance open to him. ( 24 ) THE learned Judge in the impugned order has held otherwise. From a perusal of the impugned order dated 10. 12. 2004, we find, with all due respect, that his Lordships finding that the permissible period for the student to appear in the examination has expired, cannot be sustained by us. ( 25 ) THE arguments of a detailed nature as we have had the pleasure of going into, were not made before the learned Judge and naturally those are not reflected in his Lordships judgment. We also place it on record that the back paper rules, which we have set out above, were also not placed before the learned Judge. We had to call for those ourselves. We also place it on record that the back paper rules, which we have set out above, were also not placed before the learned Judge. We had to call for those ourselves. ( 26 ) SINCE the writ petitioner was entitled to appear in the year 2003 and was not permitted to appear and since the examination of 2005 have commenced in mid March and should not be made the subject of any compulsive order by us, we order and direct that the impugned order under appeal be set aside, the writ petitioners prayer in the writ petition be allowed ; he be permitted by the respondents to appear in the B. A.-III year examination as an ex-student in the year 2006 upon payment of usual fees in due time ; he be also permitted to take back paper in 2007 should he again show consistency and not pass in the year 2006 in both papers. ( 27 ) THE appeal is, thus, allowed without any order as to costs. . .