JUDGMENT Honble Arun Tandon, J.—Heard Sri Arvind Kumar Srivastava, learned Counsel for the petitioners, Sri P.S. Baghel, learned Counsel for respondent Nos. 1 to 4. 2. Petitioners, namely, Pradutt Kumar Bharti, Ambika Prasad Chaudhary and Prem Sagar, were admitted to M.Sc. Two Years’ Degree Course in the subject of Physics, as offered by the University of Allahabad for the academic Session 2004-05. 3. According to the Ordinances, relating to M.Sc. Course in Physics, Faculty of Science, a student is required to appear in Four Semester examination of six months each (the total duration of the course is two years). According to the petitioners, the First Semester Examination subsequent to their admissions was held in the month of December, 2004, in which the petitioners were successful. They, thereafter, appeared in the Second Semester Examination, which was held in the month of September, 2005, in which petitioners were successful. The third semester examination was held in the month of December, 2005. According to the system applicable, even before the result of 3rd semester was declared, petitioners were permitted to be admitted provisionally in the fourth semester. The result of the third semester examinations was declared on 26th April, 2006. Petitioners were declared failed in two papers of the said third semester examinations. Even after having failed in third semester, petitioners were permitted to appear in fourth semesters examinations, which took place in the month of May, 2006. According to the petitioners in the month of June, 2006, they have been informed that the petitioners have cleared their fourth semester, however, no mark-sheet has been issued in favour of the petitioners in that regard. Since the petitioners had failed in two papers of third semesters, they applied for being permitted to appear in back papers of the aforesaid two subjects of third semester. Examination forms along with requisite fee were deposited by the petitioners in the month of August, 2006. They were issued admit cards. However, for reasons best known to the University, permission has been refused to the petitioners qua appearance in back papers of the aforesaid third semester. This refusal has given rise to the present writ petition. 4. Examination forms along with requisite fee were deposited by the petitioners in the month of August, 2006. They were issued admit cards. However, for reasons best known to the University, permission has been refused to the petitioners qua appearance in back papers of the aforesaid third semester. This refusal has given rise to the present writ petition. 4. Petitioners submit that having regard to the conduct of the University, namely, admission of the petitioners in the fourth semester and their appearance in fourth semester examination and further the University having accepted, examinations forms along with requisite fee of the petitioners for appearance in the back-papers in two subjects of third semester, the University cannot refuse (now after one year) permission to appear in back papers of 3rd semester. It is prayed that the University must declare their results of the third and fourth semesters examinations. 5. This Court, while entertaining the present writ petition on 5th December, 2006, required the University to permit the petitioners to appear in two back papers of third semester examination. However, it was provided that the result of the said examination shall not be declared without the leave of the Court. 6. It is stated that the petitioners have appeared in first and second back papers of third semester, but their results have not been declared. 7. Counter-affidavit along with a supplementary affidavit have been filed on behalf of the University of Allahabad, while Rejoinder affidavit has also been filed. 8. Learned Counsel for the University points out that in accordance with the recommendation of the Faculty Board of Science dated 2nd April, 2002, which has since been approved by the Academic Council as well as by the Executive Council, a regular student of M.Sc Two Years’ Degree Course in the subject of Physics can be permitted to appear in back papers only if he secures not less than 40% in total of all theory paper and not less than 48% in aggregate. 9. Learned Counsel for the University, with reference to the mark-sheets enclosed as Annexure-1 to the writ petition, in respect of all the three petitioners, points out that the total marks in theory paper secured by all the three petitioners in third semester is less than 40%, while the aggregate of petitioner No. 1 and 3 is also less than the prescribed 48%. Therefore, in terms of the Ordinance, they are not entitled to appear in the back paper. 10. Copy of the Ordinances, as suggested by the Faculty Board of Science, the minutes of the meeting of the Academic Council dated 27th April, 2002 and the minutes of the meeting of the Executive Council of the University dated 28th September, 2002 have been brought on record as Annexure-SCA-2 to the Supplementary Counter-affidavit dated 22nd March, 2007. 11. Faced with the aforesaid contention, learned Counsel for the petitioners submits that the authority to frame the draft in respect of admission of students in various courses of the University including the provision for appearance in back papers of the course concerned is with the Academic Council of the University. Draft so submitted by the Academic Council has to be approved by the Executive Council as it is submitted. The Executive Council cannot make any amendments in the draft so proposed, if the Executive Council is not satisfied with any part of the proposals of the Academic Council, it can at best return the draft for reconsideration to the Academic Council or to reject the same. Reference in that regard has been made to Section 52 (4) of the U.P. State Universities Act, 1973, which was applicable to the University at the relevant time. Lastly, it is pointed out that the Academic Council in its meeting held on 27th April, 2002 bifurcated the recommendations made by the Faculty Board of Science as per the minutes of the meeting dated 2nd April, 2002 into two parts. The first part of the recommendation comprised of adoption of semester systems for M.Sc. Course, while the second part comprised of ordinances to be framed in respect of appearance in back papers. The Academic Council, while approving the draft in respect of the adoption of the semester system recommended that the same may be incorporated as part of Chapter-XXXIX of the Ordinances of the Allahabad University under new Clause (JJJ). 12. So far as the second part of the recommendation with regard to the appearance in back paper is concerned, it was resolved that the matter may be reconsidered with the Heads of Department of Science Faculty and after necessary amendments the matter be again placed before the Academic Council in the next meeting. 12. So far as the second part of the recommendation with regard to the appearance in back paper is concerned, it was resolved that the matter may be reconsidered with the Heads of Department of Science Faculty and after necessary amendments the matter be again placed before the Academic Council in the next meeting. This draft of the Academic Council was placed for consideration before the Executive Council in its meeting dated 28th September, 2002. The Executive Committee resolved to accept the same, meaning thereby the second part of the proposal with regard to the back paper being reconsidered with the Head of Department of Science Faculty and matter being placed before the Academic Council in the next meeting, was also approved. Petitioner therefore, submits that the proposals of the Faculty Board of Science in respect of back paper was never approved by the Executive Council and therefore, it cannot be said that any Ordinances in accordance with the provisions of Section 52 of the State Universities Act were ever framed or enforced in respect of back-paper in the said subject. He therefore, submits that reliance placed upon the draft of the Faculty Board of Science of the University is totally misplaced and infact no such ordinances have ever been framed/notified. 13. At this stage of the proceedings, Sri P.S. Baghel, learned Counsel for the University contends that in case the plea raised by the petitioners is accepted, i.e. the Ordinances in respect of back-papers have not been framed/enforced in accordance with Section 52 of the State Universities Act, there is no other ordinance, which permit the students of M.Sc. two years’ degree course being permitted to appear in back papers subsequent to the enforcement of semester system. Therefore, petitioners have no right to appear in back-papers. 14. Learned Counsel for the petitioner with reference to paragraph-12 of the Rejoinder Affidavit, however, submits that certain other students have been permitted by the University to appear in the back-paper irrespective of 48% aggregate marks prescribed under the Ordinance relied upon by the learned Counsel for the University. This statement is disputed by Sri P.S. Baghel, learned Counsel for the University. 15. I have heard learned Counsel for the parties and have gone through the records of the present writ petition. 16. This statement is disputed by Sri P.S. Baghel, learned Counsel for the University. 15. I have heard learned Counsel for the parties and have gone through the records of the present writ petition. 16. From the records, as are noticed herein above, it is apparently clear that semester system was proposed, in respect of M.Sc. Physics Two Years Degree Course for the first time under a decision of the Faculty Board of Science, as per the meeting dated 2nd April, 2002. In the said meeting, after suggesting adoption of semester system, ordinances relating to second examination (back-paper) under newly adopted semester system for M.Sc. Two Years’ Degree Course in Physics were also proposed. In the said proposed ordinances, it is provided that a candidate, who secures less than 40% marks in the total of all theory papers and less than 48% marks in aggregate in each semester i.e. the total marks obtained in theory as well as practical papers will not be entitled to appear in any back paper. The proposal so submitted by the Faculty Board of Science came up for consideration before the Academic Council of the University in its meeting dated 27th April, 2002. The decision in respect of proposal so submitted may be quoted herein below : Þfo}r ifj"kn dh cSBd dh dk;Zokgh dk dk;Zo`Rr % la[;k&03 o"kZ&2002 kfuokj] fnukad 27 vÁSy] 2002 lka; 4-00 cts ------------------------------------------------------------------------------------ fopkjksijkUr fu.kZ; fy;k x;k fd ,e0,l0&lh0 HkkSfrd foKku ¼HkkSfrdh½ esa lsesLVj Á.kkyh ÁHkkoh djus gsrq foKku ladk; ifj"kn }kjk laLrqr v/;knskksa ¼layXyd&>½ dks Lohdkj fd;k tk; rFkk bl laLrqfr ds lkFk dk;Z ifj"kn dks vuqeksnukFkZ Ásf"kr fd;k tk; fd mUgsa v/;k; XXXIX ¼mUrkyhl½ ds [k.M JJJ ds v/khu j[kk tk;A ;g Hkh fu.kZ; fy;k x;k fd mDr ikB;Øe gsrq foKku ladk; ifj"kn }kjk laLrqr f}rh; ijh{kk ds v/;knskksa esa f}rh; ijh{kk v/;knsk fo"k;d lfefr ,oa foHkkxk/;{k }kjk ikjLifjd ijkekZ ds ckn vko;d lakks/ku dj mUgsa fo}r ifj"kn dh vxyh cSBd esa ÁLrqr fd;k tk;A------------------------Þ 17. The draft approved in the meeting of the Academic Council dated 27th April, 2002 was placed for consideration in the meeting of the Executive Council dated 28th September, 2002. The draft approved in the meeting of the Academic Council dated 27th April, 2002 was placed for consideration in the meeting of the Executive Council dated 28th September, 2002. Resolution of the Executive Council in respect of relevant subjects reads as follows : Þdk;Z ifj"kn dh cSBd dh dk;Zokgh dk dk;Zo`Rr % la[;k&05@2002 fnu] frfFk ,oa le; % kfuokj] fnukad 28 flrEcj] 2002] iwokZUg 11-00 cts --------------------------------------------------------------------------------------- 45] fo}r Ádj.k 45-1 dk;Z ifj"kn }kjk fnukad 27-4-2002 dks lEiUu fo}r ifj"kn }kjk ikfjr ladYiksa dks Lohdkj fd;s tkus ij fopkj fd;k x;kA fu.kZ; fy;k x;k fd fnukad 27-4-2002 dks lEiUu fo}r ifj"kn }kjk ikfjr ladYiksa dks vuqeksfnr fd;k tk;AÞ 18. From the aforesaid, it is established that the draft in respect of ordinances relating to newly adopted semester system in M.Sc. Two Years Degree Course in Physics, Faculty of Science (to be included in Chapter XXXIX as Part-JJJ) was formally approved by the Executive Council in its meeting dated 28th September, 2002. 19. So far as the Ordinances recommended by the Faculty Board of Science for second examination (back-paper) qua newly adopted semester system in M.Sc. Course in Physics is concerned, the same was not approved by the Academic Council on the contrary, it was resolved that the matter may be re-examined by the concerned Faculty Board of Science along with Head of Department and amended Ordinances in that regard be placed in the next meeting of the Academic Council. This resolution of the Academic Council came up for consideration before the Executive Council in its meeting held on 28th September, 2002 and in the meeting the Executive Council decided to accept the proposal of the Academic Council, as presented. 20. At this stage, reference may also be had to Section 52 (4) of the State Universities Act, which provides that the Executive Council shall have no power to amend any draft proposed by the Academic Council. It may, however, reject it or return the draft to the Academic Council for reconsideration either in whole or in part together with the amendments which the Executive Council may suggest. 21. For ready reference Section 52 (4) of the State Universities Act, 1973 as was then applicable, may be reproduced. “52(4). It may, however, reject it or return the draft to the Academic Council for reconsideration either in whole or in part together with the amendments which the Executive Council may suggest. 21. For ready reference Section 52 (4) of the State Universities Act, 1973 as was then applicable, may be reproduced. “52(4). The Executive Council shall not have power to amend any draft proposed by the Academic Council under sub-section (3) but may reject it or return to the Academic Council for reconsideration either in whole or in part together with any amendments which the Executive Council may suggest.” 22. In view of the aforesaid statutory provisions, as also on a simple reading of the resolution passed by the Academic Council in its meeting dated 27th April, 2002 and as approved by the Executive Council in its meeting dated 28th September, 2002, this Court has no hesitation to record that at no point of time, the Ordinances proposed by the Faculty Board of Science, in respect of second examination (back-paper) with the introduction of semester system were submitted in form of draft by the Academic Council nor the same were ever approved by the Executive Council. Therefore, no ordinances in that regard can be said to have been enforced in the eyes of law. 23. Reference may also be had to Section 52 (3) of the State Universities Act, which contemplates that any new or additional ordinances, or any amendment or repeal of the existing Ordinances can be made by the Executive Council only if a draft in that regard is submitted by the Academic Council. Section 52 (3) reads as follows : “52. Ordinance how made.—(1)..... (2)....................... Section 52 (3) reads as follows : “52. Ordinance how made.—(1)..... (2)....................... (3) Save as otherwise provided in this section, the Executive Council may, from time to time, make new or additional Ordinances or may amend or repeal the Ordinances referred to in sub-sections (1) and (2): Provided that no Ordinance shall be made— (a) affecting the admission of students, or prescribing examinations to be recognised as equivalent to the University examinations or the further qualifications mentioned in sub-section (1) of Section 45 for admission to the degree courses of the University, unless a draft of the same has been proposed by the Academic Council; or (b) effecting the conditions and mode of appointment and duties of examiners and the conduct or standard of examinations or any course of study except in accordance with a proposal of the Faculty or faculties concerned and unless a draft of such Ordinance has been proposed by the Academic Council; or (c) effecting the number, qualifications and emoluments of teachers of the University or the income or expenditure of the University, unless a draft of the same has been approved by the State Government. Since in the facts of the case, no draft was submitted by the Academic Council in respect of back-papers under the Semester System there can be no Ordinance under law qua the re-examination (back-papers). Accordingly, it is held that proposed Ordinances of the Faculty Board of Science, which are relied upon by the learned Counsel for the University for the purposes of refusing permission to the petitioners for appearance in the second examination (back-paper) of third semester in the subject of M.Sc. Physics have not been framed or notified as Ordinances as per the State Universities Act. Consequently such recommendations do not have any force of law nor can they be the basis for refusing permission to the petitioners for appearing in the second examination. 24. After having come to the aforesaid conclusion, it is still to be examined as to under which provision of law, the students like the petitioners can claim a right to appear in the second examination (back-paper) of the third semester of the University in respect of subjects in which they had failed. 25. 24. After having come to the aforesaid conclusion, it is still to be examined as to under which provision of law, the students like the petitioners can claim a right to appear in the second examination (back-paper) of the third semester of the University in respect of subjects in which they had failed. 25. It may be stated that no student has a right to appear in the second examination (back-paper) unless provided for under the relevant ordinances, statutes or any other instrument having force of law. 26. This Court may record that Sri Arvind Srivastava, learned Counsal for the petitioners despite best effort could not point out any other provision under the State Universities Act, Statutes, Ordinances and Regulations framed thereunder, which could permit students like the petitioners admitted to M.Sc. Degree Course in Physics under the semester system examinations being permitted to appear in the second examination (back-paper). 27. So far as the Ordinances under Chapter-XXVI of the Calendar of Allahabad University, in respect of second examination are concerned, this Court may record that the same have no application qua the semester system enforced in respect of M.Sc. Two Years’ Degree Course in Physics, specially when yearly system of examination has been done away with. Existing ordinances do not contemplate permission for appearance in back paper under the semester system. 28. Consequently, the Court records as of date, there exists no ordinances under which students of M.Sc. Two Years’ Degree Course in Physics under semester system can be permitted to appear in back-papers. 29. At the same time this Court may also record that large number of students admitted to M.Sc. Two Years’ Degree Course in Physics since 2002 have been permitted to undertake back-papers, even after introduction of the semester system. Probably the University was labouring under a wrong impression that the ordinances in respect of appearance in back-paper under semester system as recommended by the Faculty Board of Science had been approved by the Executive Council. This Court may also notice that in respect of other examinations of the University there is a provision for appearing in the back paper and further since the University itself has been permitting the students of M.Sc. This Court may also notice that in respect of other examinations of the University there is a provision for appearing in the back paper and further since the University itself has been permitting the students of M.Sc. Two Years’ Degree Course to appear in the back paper despite introduction of the semester system, it would be fair and just that the Vice-Chancellor of the University may, in exercise of emergency powers under Section 14(3) of the Act No. 26 of 2005 i.e. University of Allahabad Act, 2005, take appropriate decision in the matter to protect the academic interest of the students like the petitioners. 30. Accordingly the writ petition is disposed of with liberty to the petitioners to make a representation, ventilating all their grievances, before the Vice-Chancellor of the University (mentioning the fact that the petitioners have already passed their fourth semester examination and have been selected for GATE examination, which entitles them to be admitted in the Indian Institute of Technology (I.I.T.), Master Business of Administration and other Post Graduate Management Courses, petitioner may also highlight the hardship, which they shall face in case they are not permitted to appear in the back paper of the third semester), within one week from today along with a certified copy of this order. On such a representation being made, the Vice-Chancellor of the University shall examine the matter and having regard to the practice followed by the University since 2002 in respect of appearance in back paper as also to the academic career of the petitioners, decide the same by means of a reasoned speaking order, preferably within three weeks from the date the representation is made. ———