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J&K High Court · body

2009 DIGILAW 169 (JK)

Bilal Ahmad Wani v. University Of Kashmir

2009-04-17

BARIN GHOSH, SUNIL HALI

body2009
1. The students of the degree course for Bachelor of Engineering, conducted by the University of Kashmir, approached this Court by filing three writ petitions seeking Mandamus directing the University to permit them to appear in the backlog papers of the 1st semester Examination alongwith the 7th semester Examination. Since it was represented to the writ petitioners-appellants by the University that Statute 15 of the University Statutes stands in their way to appear in the backlog papers of the 1st semester Examination alongwith the 7th semester Examination, the petitioners in the writ petitions sought a declaration that Statute 15 is invalid. In other words, as the petitioners proceeded, so was the response of the University, that Statute 15 stands in the way of a candidate pursuing the degree course for Bachelor of Engineering conducted by the University, to appear in the backlog papers of the 1st semester Examination alongwith the 7th semester Examination. The Court, therefore, proceeded on that basis and, accordingly, was called upon to find out whether the said Statute is valid or not. On the basis of the pleadings and arguments advanced, the Court found that there is no basis to challenge the legality of Statute 15 and, accordingly, declared the same to be a valid piece of Legislation. In consequence thereof, petitioners lost, for, as they proceeded on the basis and as was the response of the University, the Court felt that Statute 15 stood in the way of issuance of Mandamus. The writ petitions were, accordingly, dismissed. The petitioners thereupon filed three review petitions. In the review petitions, they contended that, in fact, Statute 15 does not stand in the way of the petitioners to appear in the backlog papers of the 1st semester alongwith the 7th semester Examination. The Court felt that since an interpretation has been given to Statute 15 by it while passing the principal orders on the writ petitions, it cannot change its view on such interpretation in review applications, and the same can only be made by the appellate forum. The Court, accordingly, dismissed the review petitions. 2. Aggrieved thereby, the writ petitioners in all the said three writ petitions have preferred a joint single appeal against the three principal orders passed in three writ petitions as well as against three review orders passed on three review petitions. 3. The Court, accordingly, dismissed the review petitions. 2. Aggrieved thereby, the writ petitioners in all the said three writ petitions have preferred a joint single appeal against the three principal orders passed in three writ petitions as well as against three review orders passed on three review petitions. 3. The respondent University has contended that such an appeal is not maintainable. To that, learned counsel for the appellants has submitted that the three principal orders and the three review orders are verbatim same and similar, including commas and full stops. The only difference is the change in the cause title of those orders. He submitted that in such situation, in order to avoid multiplicity of proceedings, the appellants, who were seeking to pursue a common cause against one single respondent, clubbed the appeals into one. Even assuming such an appeal is not maintainable, but it cannot be said that the appeal against one principal order passed in one writ petition and one review order passed in connection with the said writ petition is not maintainable. We, therefore, have jurisdiction to pronounce upon the issues raised in the appeal, at least, in connection with one of the writ petitions. The nature of issues is such that if we decide the same, the same would tantamount to declaration of the obligations of the University and, accordingly, everybody similarly situated to the appellant, whose appeal we are entitled to decide, will also be benefited thereby. Accordingly, we have decided not to be bogged down with the question whether the present appeal in respect of three principal orders and three review orders is maintainable or not. 4. For the purpose of conduct of examinations pertaining to degree course for Bachelor of Engineering, the University of Kashmir has framed Statutes. A look at Statute 11 would make it amply clear that the said course is divided into eight semesters, each lasting for six months. In the said Statute, it has been provided that the approximate time of holding examinations of the 1st, 3rd, 5th and 7th semesters will be the months of November-December; whereas approximate time of holding examinations for the 2nd, 4th, 6th and 8th semesters will be the months of June-July. It further provides that supplementary examination pertaining to the 8th semester shall be held in the month of November. It further provides that supplementary examination pertaining to the 8th semester shall be held in the month of November. A look at the Statute would make it amply clear that a candidate after completing the course study of the 1st semester would appear in the 1st semester Examination, to be held in the months of November-December, and then six months later he would appear in the examination for the 2nd semester and so on and so forth, until the examination of the 8th semester. So far as Statute 11 is concerned, it only provides that supplementary examination of the 8th semester will be held in the month of November. A reading of this Statute, therefore, makes it clear that if a candidate, who is entitled to appear at the 8th semester Examination, to be held in the months of June-July, for some reason or the other, cannot appear in such examination, shall be permitted to appear in the supplementary 8th semester examination to be held in November. 5. Unless a candidate has passed in the examination conducted at the conclusion of a particular semester, ordinarily, he is not entitled to pursue the studies of the next semester. If Statute 11 is read in isolation, the same would tantamount to a mandate that a student after having had passed the 1st semester Examination, to be held in the months of November-December, would be promoted to the 2nd semester and after completing the course of the said semester would appear in the examination of the 2nd semester in the months of June-July and only upon passing the said examination would be permitted to pursue the studies of the 3rd semester and so on and so forth. 6. The Statute 15 has made a departure from what is the ordinary meaning of Statute 11. The provisions contained in Statute 15 are as follows: "A candidate who has failed to secure a pass in any written paper/s of a semester shall be allowed to join the following semester class of the BE course. Detentions of students on account of backlogs shall be determined at the end of 3rd, 5th and 7th semester results and a student shall not have more than four backlogs (excluding the 1st semester backlogs) in the immediately preceding two semesters for purposes of promotion to the 4th, 6th and 8th semester respectively. Detentions of students on account of backlogs shall be determined at the end of 3rd, 5th and 7th semester results and a student shall not have more than four backlogs (excluding the 1st semester backlogs) in the immediately preceding two semesters for purposes of promotion to the 4th, 6th and 8th semester respectively. Provided that backlog paper/s of the Ist semester examination shall not be considered for purpose of promotion at the end of 3rd and 5th semester examination subject to the condition that the candidate has secured a pass in at least one subject of the 1st semester examination. Such a candidate shall be required to clear the backlogs of 1st semester examination latest by the end of 6th semester." 7. A look at Statute 15 would make it absolutely clear that it is not necessary for a candidate to pass in all the papers of the 1st semester Examination. Despite attempting to pass all the papers in the 1st semester Examination, but failing to do so, the candidate will be permitted to pursue the 2nd semester course. He can even carry the backlogs of the 1st semester Examination until the end of the 6th semester Examination, provided he has passed in at least one subject of the 1st semester examination. 8. A look at Statute 15 would make it amply clear that detention of students on account of backlogs shall be determined at the end of the 3rd, 5th and 7th semester results, but at that stage, backlogs of the Ist semester Examination will not be taken into account. In the event, at the end of the 3rd semester, a student has more than four backlogs in the immediately preceding two semesters, he would not be promoted to the 4th semester but such backlogs are exclusively of the backlogs of the 1st semester. Similar is the case in relation to promotion from 5th to 6th and 7th to 8th semesters. Inasmuch as backlogs in the Ist semester would not be considered for promotion from 3rd to 4th, 5th to 6th and 7th to 8th semesters, Statute 15 specifically provides what should be done in relation to backlogs of the 1st semester. Statute 15 makes it clear that even at the end of the 5th semester Examination backlogs of the 1st semester Examination shall not be considered. Statute 15 makes it clear that even at the end of the 5th semester Examination backlogs of the 1st semester Examination shall not be considered. In other words, even if a student has not been able to clear backlog papers of the Ist semester Examination at the time of clearing the 5th semester Examination, the backlog in the 1st semester Examination shall not stand in the way of the student being promoted from the 5th semester to the 6th semester. The Statute 15, however, provides or mandates that a student, who, despite having backlogs in the 1st semester Examination, has been promoted from 5th semester to 6th semester, must clear the backlogs of the Ist semester latest by the end of the 6th semester. Therefore, Statute 15 while requires the student to do a thing certainly, obliges the University also to do something when the student has failed to do what he was obliged to do. That is to prevent the student from appearing in the 6(h semester examination and not to promote him to the 7th semester. The University allowed the students to appear in the 6th semester examination, but since Statute 11 does not say that there may be supplementary examination even of the Ist or the 2nd or the 3rd or the 4th or the 5th or the 6th or the 7th semester Examinations and, at the same time, the said Statute contemplates of holding of supplementary examination only of the 8th semester Examination, the University had no obligation to enable a student, having backlog in the Ist semester Examination, promoted to the 6th semester by virtue of Statute 15, to give him an opportunity to clear the same by holding supplementary examination, simultaneously with the 6th semester examination, and thereupon promoted them to the 7th semester. 9. 9. The University contends that since despite having backlog papers in the 1st semester examination, a candidate, in terms of Statute 15, is entitled to be promoted up to the 6th semester and, inasmuch as it takes sometime to publish the result of the examinations, it is obligatory for the candidate, who has failed to pass the backlog papers of the 1st semester Examination even at his attempt to pass the same while appearing in those papers alongwith 5th semester Examination, despite being entitled to be promoted to the 7th semester, he should be stopped there to clear the backlogs of the Ist semester Examination when in terms of Statute 11, 1st semester Examination shall be held. The fallacy in the argument is that such a candidate would be entitled to be promoted to the 7th semester and not to be stopped at the end of the 6th semester, i.e., from appearing in the 6th semester Examination. If we construe Statute 15 in the manner the University wants us to interpret, we would not only be required to change the words used in the said Statute, but would also be required to structurally change the said Statute, which, having regard to user of plain and simple words in the said Statute, we cannot do. The University wants us to read in the last sentence of the proviso "Such a candidate shall be required to clear the backlog of the Ist semester Examination latest by the end of the 7th semester." As we have stated above, we are unable to do so. 10. There is also no logic in thinking in the manner in which the University has thought Statute 15 speaks. University thinks that despite not clearing backlogs of the Ist semester Examination, a candidate may be promoted from 6th to the 7th semester, but since the candidate in question has not cleared the backlogs of the Ist semester Examination by the end of 6th semester Examination, i.e., at his attempt with the 5th semester examination, the candidate in question cannot appear in the 7th semester Examination, This thought is quite-contrary to what has been provided in so many words in the Statute. A look at the Statute would make it amply clear that a candidate can carry with him the backlogs of the 1st semester Examination until the end of the 6th semester Examination, i.e., before he is entitled to sit in the 6th semester Examination. At the same time, the Statute itself gives him the right to go from the 6th semester to the 7th semester without clearing the backlogs, except the backlogs of the 1st semester Examination, which the Statute mandates the candidate to clear by the end of the 6th semester, i.e., before the 6th semester examination. The Statute, therefore, imposes an obligation on the University not to permit such a candidate to appear in the 6th semester Examination. When the University permitted such a student to appear in the 6th semester Examination, it was obligatory on the part of the University to make available to him an opportunity to at least make an attempt to clear the backlogs of the Ist semester Examination when he was permitted to appear in the 6th semester Examination. 11. In the instant case, admittedly, no such opportunity was given and despite not clearing the backlogs of the 1st semester, on the basis of a wrong interpretation of Statute 15, the University while permitted the writ petitioners to appear in the 6th semester Examination, promoted them to the 7th semester, but when at the end of the 7th semester, the petitioners-appellants wanted to clear the 7th semester examination, the University purported to hold out to them that, since they have not cleared the backlogs of 1st semester examination by the end of 7th semester Examination, they are not entitled to appear in the 7th semester Examination. In other words, the University having acted contrary to the Statute purported to misread the Statute by altering words of the Statute to camouflage its earlier action. 12. Learned counsel for the University has cited before us a judgment of the Honble Supreme Court, where an interpretation given by a Court to a regulation was interfered with. On a look at paragraph 5 of the judgment, it would be evidenced that, in name of giving interpretation to the regulation in question, the High Court not only changed the words used in the regulation, but also the structure thereof. On a look at paragraph 5 of the judgment, it would be evidenced that, in name of giving interpretation to the regulation in question, the High Court not only changed the words used in the regulation, but also the structure thereof. This judgment should have been read by the University before and they had acted in the manner they have by seeking to change words in the Statute. Learned counsel for the University also cited the judgment of the Honble Supreme Court referred to and relied upon by the learned Judge, who rendered the judgments and orders under appeal, to suggest that in the matter of conduct of public examinations there is no scope of showing sympathy. We have no quarrel with the preposition contained in the said judgment. We are of the firm view that a Writ Court is only entitled to uphold a legal right of a litigant and cannot bestow upon a litigant a new right by a judgment and order of the Court. It can only declare the right which already vests in the litigant and direct exercise of such right by issuance of appropriate writ. 13. In the circumstances, the appeal stands allowed and the judgments and orders under appeal stand set aside. We issue a Mandamus directing the University to permit the appellants-petitioners to appear in the backlog papers of the 1st semester Examination alongwith 7th semester Examination taking note of the fact that despite the appellants-petitioners in terms of Statute 15 had an obligation to clear the same by the end of the 6th semester, and though they did not do so, the University permitted them to appear in the 6th semester Examination and while doing so did not make available to the appellants-petitioners an opportunity to clear the same by holding necessary examination simultaneously and on top of that promoted them to the 7th semester. 14. It has been reported to us that in terms of the interim order of the Court, the petitioners-appellants were permitted to appear in the backlog papers of the 1st semester Examination and in some of the papers of the 7th semester Examination. They were not permitted to appear in two papers of the 7th semester Examination, inasmuch as examination of those two papers were held before the interim order was passed by this Court. 15. They were not permitted to appear in two papers of the 7th semester Examination, inasmuch as examination of those two papers were held before the interim order was passed by this Court. 15. In view of what we have stated above and inasmuch as the order as passed relates back to the date of presentation of the writ petition, we direct the University to hold supplementary examination in respect of those papers of the 7th semester Examination only for the petitioners-appellants within such time frame as the University may deem fit and proper.