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2009 DIGILAW 42 (GAU)

Vipul Kumar Solanki v. Gauhati University

2009-01-20

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. Heard Mr. P.O. Nair, learned Counsel for the petitioner and also Mr. L.P. Sharma, learned Counsel appearing for the respondents. The brief facts for the purpose of disposal of this case are as follows: 1. The petitioner was admitted in the 3 years B.Sc. Course of Gauhati University for the year 2003 and he appeared in the B.Sc. Part-I examination in 2004. He was unsuccessful in the said examination. However, lie again appeared in both part-1 and 2 examination in 2005 and declared pass in the B.Sc. Part-II examination in 2005. But he was not allowed to complete the Part-1 examination in 2005 as he was allegedly found exchanging his additional answer scripts with another examinee and was punished with department from appearing in any University examination in the subsequent year, i.e., 2006. The petitioner did not challenge the aforesaid punishment debarring him from appearing in the examination in 2006. Although he was debarred from appearing in any examination in 2006, in fact he was allowed to appear in the Part-I B.Sc. examination in 2007. In the said examination in 2007 he was successful and, thus, he cleared the Part-I B.Sc. examination in 2007. Thereafter, he applied for and deposited the requisite fees, etc., for appearing in the part-III B.Sc. examination in 2008 and the respondent University issued Admit Card in his favour. Accordingly, the petitioner appeared in the B.Sc. Part-III examination in 2008. The result of the petitioner in respect of B.Sc. Part-3 examination has been withheld. The petitioner has come before this Court for a direction to the respondent University to declare the result of the aforesaid part-III B.Sc. examination. Before approaching this Court the petitioner made a representation (Annexure-14) on 10.7.2008 to the controller of examination, Gauhati University followed by second one, i.e., Annexure-15 dated 23.7.2008 forwarded by the Principal, Nagaon College on 24.7.2008 which yielded no positive result. 2. Mr. Nair, learned Counsel for the petitioner relying the Rule 12(b) submits that a candidate having appeared in Part-I examination or having failed in Part-I examination shall have the option to appear in the Part-I and Part-II examination simultaneously in the subsequent year. The petitioner was, admittedly allowed by the University authority to appear in the Part-I examination in 2007 and he cleared the same although he was, no doubt, debarred from appearing in any examination in 2006. Mr. The petitioner was, admittedly allowed by the University authority to appear in the Part-I examination in 2007 and he cleared the same although he was, no doubt, debarred from appearing in any examination in 2006. Mr. Nair has drawn the attention of this Court to the B.Sc. Part-II examination Mark sheet (Annexure-8) issued by the respondent authority in favour of the petitioner declaring him to have passed the said examination in 2005 and submits that once the university issued a certificate of passing a particular examination it can not take a stand that the petitioner did not pass the B.Sc. Part-II examination in 2005 and as such the withholding of the result of Part-III B.Sc. examination in 2008 on the ground of not clearing the Part-II examination is not tenable. 3. Countering the submission of Mr. Nair, it is submitted by Mr. Sarma, learned Counsel for the respondents that the petitioner was debarred from appearing in any examination in 2006. By the time he appeared in Part-I B.Sc. examination in 2007, he has exhausted all the chances available to him under Rule 12(h) of the regulation for B.Sc. (TDC) Course. He, in fact, appeared in B.Sc. Part-I examination in 2007 as a fresh candidate under a fresh chance. The petitioner was required to appear in Part-II examination in 2007 and the result declaring the petitioner successful in 2005 can not be taken into consideration. In this regard Mr. Sarma has taken me through the statement made in para 6 of the affidavit-in-opposition filed by the respondent Nos. 1, 2 and 3 which is quoted below: 6. That in reply to the statement made in paragraph No. 8 of the writ petition the answering respondent begs to state that as per regulation 12(h) of the regulation for T.D.C. B.Sc. (i), pattern the petitioner has exhausted all the chances available to him for appearing in the B.Sc. Part-I examination in the year 2006. As such, his appearing and passing the Part-II examination in the year 2005 Examination has became infructuous as soon as he failed to clear the Part-I examination in three chances. 4. I have considered the rival submissions made by the learned Counsel for the parties and also perused the provisions under Rule 12(b) of the aforesaid regulation. There is no dispute regarding application of this particular Rule in the present case. 4. I have considered the rival submissions made by the learned Counsel for the parties and also perused the provisions under Rule 12(b) of the aforesaid regulation. There is no dispute regarding application of this particular Rule in the present case. The real issue in this case is as to whether the Part-I B.Sc. examination in 2007 in which the petitioner was declared passed can be taken into consideration as 3rd chance under the provision of Rule 12(h) inasmuch as he has exhausted his terms in 2006. Rule 12(h) is quoted below: 12(h). A candidate must pass the Part-I, Part-II and Part-III examination within three years of completion of Part-III course. In each part a maximum of three chances each will be available for a candidate subject to the conditions laid down above. 5. There is no dispute to the fact that the petitioner initially appeared part-I B.Sc. examination in 2004 and he failed. He then appeared in 2005 but was expelled due to alleged unfair means and he was debarred from appearing in the Part-I examination in 2006 for which he could not appear in Part-I examination in 2006. Since he was debarred in 2006 he could not avail the third chance in 2006 and he could take the 3rd chance in the year 2007 only. It means that the petitioner could avail the 3rd chance in 2007 and treating his appearance in examination in 2007 as 3rd chance under the provision of Rule 12(h), the petitioner has made out a point that he passed the part-I examination in 2007 as provided under the Rules. There is no denial to the claim of the petitioner that he cleared part-II examination in 2005. If the hurdle of not clearing the Part-I examination in 3rd chances can be removed by treating the petitioner's appearance in part-I examination in 2007 within the provision of Rule 12(h), one can easily come to a conclusion that there is no irregularity in declaring the petitioner as passed both in the Part-I and Part-II examinations. In my considered view, the provision under Rule 12(h) can be interpreted in the manner as have done above and the petitioner may be treated as a candidate appearing in Part-I examination in 2007 within terms of 3rd chances without counting the debarment year, i.e., 2006 as a chance. In my considered view, the provision under Rule 12(h) can be interpreted in the manner as have done above and the petitioner may be treated as a candidate appearing in Part-I examination in 2007 within terms of 3rd chances without counting the debarment year, i.e., 2006 as a chance. The conclusion that may be arrived at is that the petitioner has cleared both Part-I and Part-II examinations and as such the result in respect of Part-III B.Sc. examination held in 2008 which is kept withheld, be declared forthwith, by the respondent University. The writ petition stands disposed of accordingly.