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2008 DIGILAW 325 (CAL)

Rakesh Thakur v. STATE OF WEST BENGAL

2008-03-25

SOUMITRA PAL

body2008
ORDER :- In the writ petition the petitioner has prayed for a direction upon the Controller of Examinations, University of Kalyani to allow him to fill up the form by depositing late fees for appearing in B. A. Part-II Examination of Honours in English, 2008 through Kanchrapara College. Declaration has also been sought for declaring the Regulation of Kalyani University allowing a candidate on completion of regular course of study to appear a maximum of three Year Part II Examinations within three years of qualifying Part I Examination as ultra vires the provision of the Constitution of India. 2. The facts in brief are that the petitioner was placed in the first division in both Madhyamik and Higher Secondary Examinations. Thereafter, in 2002 he got admitted in Kanchrapara College for pursuing 3 years B.A. (Honours) course in English. The duration of Part-I is two years and that of Part-II is of one year. After pursuing the course, the petitioner appeared in Part-I Examination held in May-June, 2004. Thereafter, result was published. The petitioner obtained 42% marks in honours subjects and qualified for Part-II Examinations. During the end of 2004 he became a psychiatric patient and had to be admitted to the Mental Observation and Orientation Division of Medicure approved by the Government of West Bengal. As a result, from January, 2005 he was under the treatment of doctors. Consequently, in 2005 he could not fill up the form of Part-II Examination. The petitioner, however, filled up the form in 2006 and appeared, but could not succeed due to illness. An attempt was made by the petitioner in 2007 by filling up the form for appearing in the B.A. Part-II Examination but illness prevented him from taking part in the examination and he was declared unsuccessful. It has been stated that though the petitioner after prolonged treatment is now fit for pursuing his studies and had deposited necessary fees for appearing in the examination to be held in the year 2008, the college authorities are preventing him from appearing in the examination on the ground that under the Regulations of Kalyani University he is entitled to appear in maximum of three Part-II Examination within three years from the year of qualifying Part-I Examination. Submission is - since the petitioner is a meritorious student who had qualified for B.A. Part-II and had won 3rd prize in the National Level Youth Parliament Competition for Universities/ Colleges held in the year 2002-2003 directions may be issued allowing him to appear in the Part-II Examinations. 3. The matter was moved on 29th February, 2008 when directions were issued for filing of affidavits. Affidavits have since been exchanged. 4. It is submitted that since the petitioner could not appear in the examination for causes beyond his control, restrictive clause in the Regulations, which are applicable to normal human being, should not be enforced. Submission is since a person of unsound mind is entitled to protection Under the various enactments such as Code of Criminal Procedure, there is no reason why the petitioner should not be exempted. 5. Learned advocate appearing on behalf of the University authorities has submitted that since the Regulations did not allow the petitioner to appear in the examination, no relief can be granted on humanitarian grounds. In this regard reliance has been placed on the judgments of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarseth, reported in AIR 1984 SC 1543 (Paragraph 16), State of Tamil Nadu v. St. Joseph Teachers Training Institute, reported in (1991) 3 SCC 87 and a judgment of the Division Bench of this Court in Central Board of Secondary Education v. Adarsh Kumar Sedhwrayar, reported in 1998 (II) CHN 61 , in support of his submissions. 6. In order to appreciate the issue it is necessary to refer to Regulation 14 of the Kalyani University Examination Regulation which is as under : "A candidate on completion of a regular course of study may appear in any or, if necessary, a maximum of three Part-II Examinations within three year of qualifying Part-I Examination." 7. In order to decide the issue it is necessary to refer to paragraphs 6, 7 and 8(a) of the affidavit-in-opposition filed on behalf of the University of Kalyani, which are as under : "(6) He was qualified for Honours Part-II Examination on fulfillment of other conditions of the Regulation in the year 2005. (7) That instead of appearing in the year 2005 for B.A. (3 Years Degree) Honours Part-II Examination, he appeared in the said examination in the year 2006 and became unsuccessful. (7) That instead of appearing in the year 2005 for B.A. (3 Years Degree) Honours Part-II Examination, he appeared in the said examination in the year 2006 and became unsuccessful. Thus he lost his 2nd chance. (8)(a) Thereafter again, as a last chance he filled up the Form for B.A. (3 Years Degree) Honours Part-II Examination in year 2007 and again he failed." 8. It appears from the facts of the case that the petitioner was not in a proper frame of mind rather he was mentally unsound. Such a person deprived of reason, is incapable of protecting his own interest. The question is, considering the fact that the petitioner was mentally unsound, whether order can be passed directing him to appear in the ensuing examination. Order XXXII, Rule 15 of the Code of Civil Procedure, 1908 protects the interest of a person of unsound mind. Section 84 of the Indian Penal Code, 1860 postulates "nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that is doing what is either wrong or contrary of law." Similarly, the interest of a lunatic or of a person of unsound mind has been protected under Sections 328, 329 and 330 of the Code of Criminal Procedure. My endeavour to refer to these provisions is to highlight the fact that legislations or regulations apply to a normal human being and not to a person of unsound mind since such a person deprived of reason cannot act rationally. To bring such a person under the scope of the Regulation would be severely unjust as norms are applicable to a normal human being. The law laid down in the judgment of the Apex Court in State of Tamil Nadu v. St. Joseph Teachers Training Institute (supra) cannot be made applicable as after considering the facts of the case it was held there that it would amount to encouraging or condoning the establishment of unauthorized institutions and, therefore, relief could not be granted on humanitarian ground as it was contrary to law. Joseph Teachers Training Institute (supra) cannot be made applicable as after considering the facts of the case it was held there that it would amount to encouraging or condoning the establishment of unauthorized institutions and, therefore, relief could not be granted on humanitarian ground as it was contrary to law. The proposition of law laid down in paragraph 16 of the judgment of Maharashtra State Board of Secondary and Higher Secondary Education (supra) was in the light of the order of the High Court as noted in paragraph 15 of the said judgment. In Central Board of Secondary Education v. Adarsh Kumar Sedhwrayar (supra) prayer of the petitioners was rejected and appeal was allowed as it appears from the facts that the writ petitioners suspected foul play and undisputedly the school concerned was not affiliated with the Board. The conclusion which can be deduced from these judgments is that one cannot be derive benefit from an illegal act. The facts as narrated in the instant case are admittedly different. Hence, it could cause great injustice to the petitioner if Regulations are made applicable in his case. Rather he should be exempted from ambit of such Regulations. Therefore, though I decline to issue writ striking down the relevant Regulation, in the interest of justice I direct the respondent Nos. 1, 2, 3 and 4 to allow the petitioner to sit in the examination under the old syllabus within a week from date subject to compliance of other formalities. 9. I make it clear this order should not be taken as a precedent. 10. The writ petition is disposed of with the above directions. 11. No order as to costs. 12. Urgent xerox certified copy of this order, if applied for, be supplied to the parties within two days from the date of making such application. Order accordingly.