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2008 DIGILAW 345 (PAT)

Ajay Kumar Sinha v. Bihar University

2008-02-15

NAVIN SINHA

body2008
Judgment Navin Sinha, J. 1. The petitioner in this application seeks a direction for declaration of his results of the DHMS Examination. 2. He appeared at the 1981 Part-I Examination in the First Year of the Course but unfortunately failed in the paper of Pathology only. He was entitled under the Regulations to three opportunities to clear the paper. He dropped appearing in the failed paper in the examination in 1982 but appeared again in 1983. He failed again. He dropped the paper again in 1984 and appeared in 1985 when he cleared the failed paper. 3. The submission on behalf of the respondent-University was that Regulation 18 read with Regulation 13 required the petitioner to appear at the subsequent examination in the failed paper on payment of the prescribed fee. He at best had three occasions to appear consecutively. That non-appearance at the examination shall be deemed to be failure. On this basis it was argued that the petitioner could not have appeared in the failed paper in 1985 since it was clearly beyond a period of three years from the date of his first failure in 1981. The fact that he dropped the paper in 1982 and 1984 are deemed failure under the Regulation. 4. It is not in controversy that in the meantime the petitioner has completed the entire course of DHMS successfully and has cleared all other papers except Pathology paper in which he had failed in the first year and as noticed earlier he has also cleared it now. The only question now is of publication of his result. 5. On 29.11.2007 and 17.12.2007 this Court had required the respondent University to produce Chancellors letter dated 8.11.1988 when it was submitted on behalf of the University that the petitioner had played fraud and managed to appear at the succeeding examination without clearing the First Year failed paper. No such letter has been produced on behalf of the University. Counsel for the University fairly states that he has been given no instruction with regard to any action taken against the Principal concerned with whom the petitioner is alleged to have acted in collusion as directed by the Chancellor. 6. No such letter has been produced on behalf of the University. Counsel for the University fairly states that he has been given no instruction with regard to any action taken against the Principal concerned with whom the petitioner is alleged to have acted in collusion as directed by the Chancellor. 6. Learned Counsel for the petitioner has relied upon a Division Bench order of this Court in CWJC No. 923 of 1986, which in turn relies upon a judgment of the Supreme Court reported in AIR 1976 SC 376 . This Court considers it proper to quote Para 5 in its entirety as under: "5. There is yet another aspect of the matter. The petitioner applied for taking Part-I I and Part-Ill Examinations to be held in 1985. The Principal, who also happens to be Dean of the Faculty of Homeopathic Science forwarded his application. The University issued admit cards and permitted the petitioner to take the examinations. The University in those circumstances is estopped from challenging the right of the petitioner to take the Part-Ill Examination. In our view, neither law nor equity is on the side of the University. The petitioners case is fully covered by the case of the Supreme Court in Shri Krishan vs. The Kurukshetra University, Kurukshetra; AIR 1976 Supreme Court, 376. In that case the Supreme Court observed that once a candidate is allowed to take the examination, rightly or wrongly, then the statute which empowered the University to withdraw the candidature of the applicant had worked itself out and the candidate could not be refused admission subse- quently for any infirmity which should have been looked into before giving the candidate permission to appear. The ratio of the case fully supports the petitioner. In our view, the grievance of the petitioner has substance." 7. The petitioner is stated to be similarly situated. He was permitted to appear at the subsequent examination of the course without obstruction. 8. In the facts and circumstances of the case and the law as discussed above this application has to be allowed. 9. The communication at Annexure-1 canceling his result of the First Year of Pathology paper which he has subsequently cleared is accordingly set aside. The respondent University is directed to declare the final result of the petitioner of the DHMS course and to grant his degree accordingly.