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2010 DIGILAW 208 (GAU)

Nome Lego v. Gauhati University

2010-03-19

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. P.J. Saikia, learned Counsel, for the writ Petitioner. Also heard Mr. L.P. Sharma, learned standing counsel for Respondent Gauhati University. 2. The Petitioner, a tribal girl from a backward State of Aninachal Pradesh, with uplight, confidently took admission in 3-year LL.B, Degree Course under the Gauhati University in the year 2001 but she could not obtain the said Degree, for, she could not come out successful during the maximum outer period of 6 years prescribed under the relevant regulations of the Gauhati University. Her case, in a narrow campus, can be narrated like this. The first due examination of Preliminary LL.B. Examination in respect of the Petitioner was scheduled in December, 2001. However, the Petitioner failed to appear in the said Examination due to her serious illness. Thereafter, the Petitioner made her first attempt at the Preliminary Examination alongwith first attempt at Intermediate LL.B. Examination in December, 2002. Although the Petitioner failed in the Preliminary LL.B. Examination in the year 2002, she was allowed to take admission in the Final LL.B. Examination. She was unfortunately declared failed in both the Examinations. She made her second attempt at both the said Examinations in the year 2003. She passed the Intermediate Examination but she got back in 3 (three) papers in the Preliminary LL.B. Examination. In the year 2004, no examination in Preliminary LL.B. Examination could be held due to some administrative difficulties by the Respondent Gauhati University and therefore, the Petitioner had to appear in the Preliminary LL.B. Examination of 2004 held in the month of January, 2006. The Petitioner could clear all the back papers. So, the Petitioner wanted to appear in the first due Final LL.B. Examination in December, 2003, but she was not allowed to do so as she was yet to pass Preliminary LL.B. Examination. The Petitioner, however, wanted to appear in the 2nd and 3rd due Final LL.B. Examination, in 2004 and 2005 respectively, but she was not allowed to appear for the same reason. The Petitioner was, however, allowed to appear in final LL.B. Examination held in the month of January, 2006 but she failed with back in 3 (three) papers. Thereafter, the Petitioner made her 2nd attempt by appearing in the Final LL.B. Examination held in the month of March, 2007, but she could clear only 1 (one) back paper. The Petitioner was, however, allowed to appear in final LL.B. Examination held in the month of January, 2006 but she failed with back in 3 (three) papers. Thereafter, the Petitioner made her 2nd attempt by appearing in the Final LL.B. Examination held in the month of March, 2007, but she could clear only 1 (one) back paper. The Petitioner, therefore, had to make the 3rd attempt at the Final LL.B. Examination held in the month of December, 2007 and she could clear 1 (one) back paper only. So, one more back paper i.e. Paper-IV, Code of Civil Procedure, 1908, and Indian Limitation Act, 1963, remain un-cleared. The result of the Final LL.B. Examination conducted in the month of December, 2007, was declared in the month of July, 2008 and the Respondent Gauhati University issued a notice for filling-up forms for Final LL.B. Examination, fixing 05.11.2008 as the last date. However, the said last date was extended upto 10.11.2008. When the Petitioner intended to fill-up forms for appearing in the Final LL.B. Examination to clear the back in Paper-IV, which was scheduled to be held on and from 23.12.2008, she was not allowed by the college authorities to fill-up the form on the ground that maximum limit of 6 (six) years from the date of first due examination has already been exhausted. Being aggrieved, the Petitioner had to file the present writ petition on 19.12.2008. While issuing Rule on 21.01.2009, an interim order was passed by this Court directing the University authorities to allow the Petitioner to apply for appearing in the Final LL.B. Examination to be held on 30.01.2009 in respect of Paper-IV, providing that the result of Ae Petitioner shall be subject to out-come of the present writ petition. By virtue of tlit. interim order dated 21.01.2009, the Petitioner appeared in the Final LL.B. Examination of 2008 but her result could be announced after disposal of the instant writ petition. 3. For the purpose of adjudicating the instant writ petition, it is relevant to have a close look at the new Regulations 14 and 15 of the Gauhati University, which are extracted, hereinbelow, for ready reference: 14. A candidate who fails to pass or fails to appear in the first due examination, shall have to pass in that examination within the period of holding the next two consecutive examinations. 15. A candidate who fails to pass or fails to appear in the first due examination, shall have to pass in that examination within the period of holding the next two consecutive examinations. 15. A candidate shall be required to clear his/her LL.B. degree within five years from the date of his/her first due examination in LL.B. Preliminary, provided that a student shall be allowed to appear in not more than three chances in each part of the LL.B. Examinations. 4. It is seen that a candidate has been given three chances in each examination, namely. Preliminary, Intermediate and Final LL.B. Examinations. As per Regulations 14 and 16, a student is required to clear his/her LL.B. Degree within 5 years from the date of first due examination in Preliminary LL.B. Examination. By a notification dated 13.09.2002, the Respondent Gauhati University offered one special chance under the new Regulation providing that "a candidate must complete his/her LL.B. Degree within six years from the date of his/her first due LL.B. Preliminary examination" and this would also be applicable to the candidates having back papers. 5. The Petitioner, in this case, admittedly took admission in LL.B. Course in the year 2001 and her first due examination in Preliminary LL.B. Examination was in December, 2001. It means that the Petitioner had to clear the Final LL.B. Examination within the outer limit of 6 years by December, 2007. 6. From the pleadings of the parties, particularly, Petitioner, it is to find out how she proceeded and progressed during the entire 3-year LL.B. Degree Course: Examination 1st due examination and remarks 2nd due examination and remarks 3rd due examination and remarks 1st due special chance and remarks 2nd due special chance and remarks Preliminary 2001 (Dec.) Failed to appear 2002 (Dec.) appeared but failed 2003 (Dec.) appeared but failed 2004 (Dec.) No exam held due to administrative difficulties. Exam held in Jan. 2005 2005 due exam held in Jan. 2006 Not applicable Intermediate 2002 (Dec.) Appeared but failed 2003 (Dec.) Passed Not applicable Not applicable Not applicable Final 2003(Dec. ) not allowed to appear as she was yet to pass the preliminary LL.B Examination . 2004(Dec. ) not allowed to appear as she was yet to pass the preliminary LL.B Examination 2005(Dec. ) not allowed to appear 2006(Dec. 2006 Not applicable Intermediate 2002 (Dec.) Appeared but failed 2003 (Dec.) Passed Not applicable Not applicable Not applicable Final 2003(Dec. ) not allowed to appear as she was yet to pass the preliminary LL.B Examination . 2004(Dec. ) not allowed to appear as she was yet to pass the preliminary LL.B Examination 2005(Dec. ) not allowed to appear 2006(Dec. ) Allowed to appear for the first time but failed 2007(March)and 2007(Dec.) Allowed to appear for the 2nd and 3rd time but failed 7. Averments have been made in paragraph 6 of the writ petition that the Petitioner failed to appear in her first due examination held in the month of December, 2001 due to her serious illness. The Regulation is silent as to whether, when a student 'fails to appear' due to illness, he/she would lose a chance and that he/she would not be able to avail the same, in future, under any circumstances. This Court, in W.P.(C) No. 6019/2007 Sanowar Hussain v. Gauhati University and Ors. interpreted the phrase "fails to appear" occurring in Regulation 14 to mean a student who could not appear for reasons beyond his control. In the said unreported case, this Court also interpreted the phrase "fails to pass" to mean a student who voluntarily fails to appear. In the instant case, the Petitioner failed to appear due to her serious illness which was not controverted/denied by the Respondent Gauhati University in its counter affidavit. Therefore, it is to be accepted that the Petitioner could not appear due to her serious illness which is also accepted as a reason "beyond her control'. Giving the said benefit, the Petitioner's 2nd and 3rd due Preliminary examinations held in the year 2002 and 2003 respectively, should be treated as 1st due and 2nd due examinations respectively. The Petitioner's appearance in the year 2004 as a first special chance examination, should also be treated as her 3rd due examination as she did not avail any special chance. In the Inter-mediate examination, the Petitioner passed at her 2nd attempt in 2nd due examination held in the month of December, 2003. 8. In regard to Final LL.B. Examination, the Respondent Gauhati University pleads that Petitioners first due examination was in the year 2003 (December), followed by 2nd due examination in the year 2004 (December) and 3rd due examination in the year 2005 (December). 8. In regard to Final LL.B. Examination, the Respondent Gauhati University pleads that Petitioners first due examination was in the year 2003 (December), followed by 2nd due examination in the year 2004 (December) and 3rd due examination in the year 2005 (December). But it must be noted that in all those years, she was not allowed to appear because she could not pass/clear the Preliminary LL.B. Examination and she passed the same only in the year 2005. The Petitioner was allowed to appear in Final LL.B. Examination for the first time in the year 2006 (December) and for the 2nd time in the year 2007 (December) but she failed in both the attempts. According to the respondent Gauhati University, the Petitioner has completed the outer limit of 6 years while she made 2nd attempt in the year 2007 (December) and therefore, it refused to al low the Petitioner to appear in the next Final LL.B. Examination to be held in the month of December, 2008. Now, question has arisen as to whether it can be said that the Petitioner failed to appear in the Final LL.B. Examination of 2003, 2004 and 2005. It is an admitted position that the Petitioner was not al lowed to appear in those 3 years as she could not clear/pass the Preliminary LL.B. Examination. So, it can not be said that the petitioner voluntarily failed to appear so as to deprive her of a chance out of 3 chances of Final LL.B. Examination. Considered in the light of the interpretation/decision of this Court in Sanowar Hussain (supra), the 1st due Final LL.B. Examination in respect of the Petitioner should be counted from the month of December, 2006, when she was allowed for the first time to appear in the said examination. Similarly, her appearance in the Final LL.B. Examination of March, 2007, should be treated as her 2nd due Final LL.B. Examination. The Petitioner made her 3rd at tempt at the First LL.B. Examination held in the month of December, 2007. As per the pleadings of Respondent Gauhati University in paragraph 4 of its counter affidavit, the outer limit of 6 years in respect of the Petitioner ended in the month of December, 2007. However, unfortunately, the Petitioner failed in those attempts as she could not clear/pass one back paper viz. Paper-IV, Code of Civil Procedure, 1908, and Indian Limitation Act, 1963. 9. However, unfortunately, the Petitioner failed in those attempts as she could not clear/pass one back paper viz. Paper-IV, Code of Civil Procedure, 1908, and Indian Limitation Act, 1963. 9. The Respondent Gauhati University is sued another notification dated 27.09.2007 (Annexure-B to the writ petition) providing one more additional chance to be availed in any two of the three LL.B. examination. By virtue of this offer of additional chance, the Petitioner is entitled to avail one more special chance. For better appreciation, the notification dated 27.09.2007, is reproduced below: GAUHATI UNIVERSITY NOTIFICATION Dated 27th September, 200 In continuance of Circular No. Ex/LLB/2/2002/8611-24dt. 13.9.02 Clause 15 of LL.B. Regulation has been partially modified by the standing committee and a decision for special chances for the LL.B. examinations (under Regulation as passed by the Academic Council on 09.03.99) has been taken under the following conditions: One special chance (4th) each will be given to the candidates to any two of the three LL.B. examinations (i.e. Preliminary, Intermediate or Final in which this is required) under the Regulation mentioned above provided that a candidate must complete his/her LL.B. Degree within six years from the date of his/her due examination in LL.B. Preliminary. This will also be applicable for the candidates having back. Further, individual applications of such candidates must be submitted through the concerned Principals by giving individual undertaking that the candidates shall not ask for any more chances in future. Sd/-P.K. Deka Controller of Examinations Gauhati University The above notification is in modification to earlier notification dated 13.09.2002 issued by the Respondent Gauhati University wherein, in similar circumstances, a candidate was given only one special chance to appear in any two of the three LL.B. examinations (i.e. Preliminary, Intermediate or Final). 10. The Petitioner, with a view to avail this special chance, wanted to appear in the next Final LL.B. Examination scheduled in the month of December, 2008, which was eventually held in the month of January, 2009, but she was not allowed to apply for appearing in the said Final LL.B. Examination. However, for the interim order passed by this Court, the Petitioner was allowed to fill-up the form and could appear in the Final LL.B. Examination held in the month of January, 2009. 11. However, for the interim order passed by this Court, the Petitioner was allowed to fill-up the form and could appear in the Final LL.B. Examination held in the month of January, 2009. 11. The broad facts that the Petitioner was not allowed to appear in the Final LL.B. Examinations held in 2003, 2004 and 2005, as she could clear/pass her Preliminary LL.B. Examination only in the year 2005, are not denied. The Respondent Gauhati University may also be correct in their stand. However, at the same time, it must be noted that although the Petitioner could not clear/pass the Preliminary LL.B. Examination held in the year 2003, she was allowed to take admission in Final LL.B. class as she could clear/pass the Intermediate examination in the year 2003. There is no denial from the Respondents that she was regularly attending the Final LL.B. classes and she wanted to appear in the final LL.B. due examinations in the years, 2003, 2004 and 2005. Yet, the Petitioner was not given any opportunity to appear in the said Examinations in 3(three) consecutive years. Once it is found admitted that the student was not allowed by the authorities concerned to appear in an examination, for no fault of his/her, the lost due chances cannot be counted to his/her disadvantage. The instant writ Petitioner, no doubt failed to appear in those 3 (thee) due chances but it was for reasons beyond her control. It is one thing to say "fails to pass" and it is another thing to say "fails to appear". When it is said that a student "fails to pass", it would mean that that he/she appeared in the examination but failed in the examination and thereby, he/she has availed the due chance of examination but when one "fails to appear", it may mean that he/she failed to appear without any bonafide reason or with some bonafide reason beyond his/her control. In the Final LL.B. Examination, in respect of the instant Petitioner, what is found abundantly clear is that ttie Respondent Gauhati University did not allow her to appear in the Final LL.B. Examination until 2006. Therefore, the instant writ Petitioner should be treated as failed to appear due to restrictions put by the Respondent Gauhati University. In the Final LL.B. Examination, in respect of the instant Petitioner, what is found abundantly clear is that ttie Respondent Gauhati University did not allow her to appear in the Final LL.B. Examination until 2006. Therefore, the instant writ Petitioner should be treated as failed to appear due to restrictions put by the Respondent Gauhati University. In contrast, it could be easily gathered that there was no volition or intention of the Petitioner in not appearing in the Final LL.B. Examination and as such, her inability to appear or failure to appear in the examination was due to reason beyond her control. No provision has been laid down in the Regulation as to what should be done in such a case/situation or how to meet such contingent situation. 12. As stated earlier, the Petitioner was allowed to take admission in the Final LL.B. Examination without passing the Preliminary LL.B. Examination. When a student is allowed to take admission as per the existing Regulation and attending classes regularly, he/she accrues a right to appear in the said Final LL.B. Examination and such a right cannot be denied/exirtailed without giving due opportunity of hearing to a candidate/student only on a technical ground that the outer limit of 6 years has been completed and no further chance could be given to him/her. There is nothing in the Regulation that the outer limit of 6 years cannot be extended under any circumstances even when there is no fault on the part of a student in failing to appear in an examination not due to his/her negligence or lapse. Although no such provision is made m the Regulation, it is implied that the Respondent Gauhati University have the power to relax Regulation 14 to give benefit in a given situation and genuine case like the present one where no voluntary failure to appear in the examination could be attributed to a student but for certain difficulties/contingencies beyond his/her control. Certain contingencies are not foreseen at the time of flaming the Regulations/Rules and so amendments are subsequently made to suit a situation to give justice to people concerned. It is not unlikely that such situation could not be foreseen by the Respondent Gauhati University at the time of framing the Regulation, but it has taken place in the present case and now time has come to suitably amend the Regulation. It is not unlikely that such situation could not be foreseen by the Respondent Gauhati University at the time of framing the Regulation, but it has taken place in the present case and now time has come to suitably amend the Regulation. The Respondent Gauhati University must live upto the call of time and interest of the student community concerned and amend its Regulations to meet the aforesaid unforeseen situations and contingencies. 13. The case at hand is to be considered not merely on strict technical application of Regulation 14 to restrict or debar a student from sitting in the examination due to exhaustion of outer limit of 6 years but it should also be considered in terms of assigned bonafide reason beyond his/her control in availing due chances provided in the Regulation. The offering of special chances must be so meaningful to cover the genuine cases like the present Petitioner who could not avail both the due chances as well as, at least, one due special chance owing to mechanical consideration made by the Respondent University without giving objective due consideration on the situations faced by the Petitioner, for which she is not to blame, as she was not voluntarily failing to appear in the Final LL.B. Examination under the due chances and one special chance. 14. The discussions as made above lead to a natural conclusion that the Petitioner is entitled to a special chance to appear in the Final LL.B. Examination to clear her sole bad paper in Paper-IV which was scheduled be held in the month of December, 2008, but infact was held in the month of January, 2009, although she crossed the outer limit of 6 years, as a special and genuine case, under the unforeseen and peculiar circumstances aforementioned, which are, not at all attributable to her as the same were beyond her control. Accordingly, in view of the foregoing discussions, this writ petition is accepted and allowed. However, this order, having been passed just to meet the ends of justice in a peculiarly unprecedented case, shall not be treated as a precedent for application to some like cases in future. 15. It is stated at the Bar that the Petitioner, on the strength of the interim order passed by this Court, appeared in the Final LL.B. Examination held in the month of January, 2009 and the result has been kept undeclared till date. 15. It is stated at the Bar that the Petitioner, on the strength of the interim order passed by this Court, appeared in the Final LL.B. Examination held in the month of January, 2009 and the result has been kept undeclared till date. 16. The present petition being allowed by this Court, the Respondent Gauhati University is directed to announce the result of the Petitioner forthwith preferably within a period of 7 (seven) days from the date of receipt of a certified copy of this order from the Petitioner. 17. Parties shall bear their respective costs. Petition allowed.