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J&K High Court · body

2010 DIGILAW 620 (JK)

Nahida Bhat v. University Of Kashmir

2010-12-14

MUZAFFAR HUSSAIN ATTAR

body2010
1. Petitioner appeared in B. Pharmacy, 5th Semester examination, which was held in August-October, 2006. Petitioner took the examination under Roll no. 950. The students, including the petitioner, staged walk out in paper 5th ST-3, and petitioner was, accordingly, treated as absentee in the examination and her result was declared as re-appear in paper no. 5th ST-3. Petitioner thereafter took the examination, which was ordered to be conducted in respect of 5th (ST-3) paper. Petitioner conclusively passed the 5th semester of B. Pharmacy. 2. The case of the petitioner is that she has secured the first class first position and, thus, is entitled to receive the gold medal from the University authorities. When gold medal was not awarded to the petitioner, she was constrained to approach the Court with the prayer that respondents be directed to award gold medal to her. 3. On notice issued, respondents filed reply affidavit in which it is stated that petitioner could not pass the 5th semester of B. Pharmacy examination in first attempt, so she could not be awarded the gold medal in view of Statute No. 10:2 of the University Statutes. The said Statute provided that gold medal is to be awarded to a candidate who has taken and passed all the papers of a course in one attempt. 4. Heard learned counsel for the parties. Considered the matter. 5. Learned counsel for petitioner submitted that all the students staged walk out from the examination hall on the ground that question paper was out of syllabus. Learned counsel further submitted that as the examination of the said paper was subsequently held, petitioner passed the said paper and in view of the merit secured by her, viz. first class first position, she is entitled to get the gold medal, in terms of University Statutes. Learned counsel further submitted that denial of the gold medal to the petitioner, being in breach of University Statutes constrained the petitioner to approach this court praying therein for issuance of writ of Mandamus to command the respondents to obey the Statute and to award gold medal to the petitioner. 6. Learned counsel for the respondents submitted that in terms of Statute 10:2, a candidate, who has taken and passed the examination as a whole in the first attempt at the annual examination and secured first class first position shall be entitled for the award of gold medal. 6. Learned counsel for the respondents submitted that in terms of Statute 10:2, a candidate, who has taken and passed the examination as a whole in the first attempt at the annual examination and secured first class first position shall be entitled for the award of gold medal. Learned counsel further submitted that as the petitioner could not pass the examination as a whole in the first attempt at the annual examination, she is not entitled to be awarded with gold medal. Learned counsel further submitted that when the result of the petitioner was declared, she was shown in paper 5th ST-3, as `re-appear’ vide result notification dated 06.01.2007. Learned counsel further submitted that examination of this paper was conducted by the university in respect of all the students by preponing the date of examination by about two months. Learned counsel further submitted that petitioner filed fresh examination form for taking examination in the 5th ST-3 paper. Learned counsel, accordingly, submitted that in this factual and legal background, petition deserves to be dismissed. 7. Statute 10:2 relevant for disposal of the case is noticed as under: "10:2 Only those candidates who have taken and passed the examination as a whole in the first attempt at the Annual Examination and secured first class first position shall be entitled for the award of a Gold Medal." 8. This case has its own peculiar features. Petitioner, along with other students, reported in the examination hall for taking examination in paper 5th ST-3. Students protested, when they allegedly found that the question paper, which was provided to them and which they had to answer was out of syllabus. The students, in these circumstances, decided not to take the examination in the said paper and staged walk out. The University authorities, thereafter, conducted the said examination, in as much as, examination of paper 5th ST-3 was not held on the scheduled date but on an earlier date. It appears that the respondents had registered the grievance of the petitioner and other students and that is how the special examination for paper 5th ST-3 was ordered to be conducted. Petitioner and other students did not take the examination of paper 5th ST-3 in the subsequent scheduled examination. 9. Statutes are not dead or non-living entities. They regulate the human affairs in different walks of life, so, cannot be said to be lifeless and static. Petitioner and other students did not take the examination of paper 5th ST-3 in the subsequent scheduled examination. 9. Statutes are not dead or non-living entities. They regulate the human affairs in different walks of life, so, cannot be said to be lifeless and static. Statutes are created for benefit of section of population. A statute may be positive or negative. It has to be construed in the setting of its background. One of the functions of Courts’ is to chisel the Statute to give desired shape to rights of people. 10. The Statute 10:2 has all the positive traits. It authorizes for conferring an award on a meritorious student. The Statute calls for recognition of merit and encouragement of student so as to further fire its imagination and enthuse a drive in it to soar to dazzling heights in life and render great services to society. 11. The benefit springing-up from the said Statute can shower the benefit of award of gold medal on a student who has qualified the examination in one attempt and has secured first class first position. The award of gold medal cannot be conferred to a student who has failed to qualify whole examination in one attempt. 12. The petitioner cleared all the papers excepting paper 5th ST-3. The petitioner reported in examination centre but was prevented to take the examination in said paper as all the candidates found paper out of syllabus and staged walk out. It is not the case that petitioner either absented on the day of examination, or took examination but could not secure the requisite grade and was declared fail. The question paper was stated to be out of syllabus. A student, in normal course, is to answer questions which are prescribed in syllabus. A question paper, in normal circumstances, if has questions beyond the prescribed syllabus, may not be called a proper question paper and in some circumstances refusal to answer the same may not tantamount in law that the candidate has suffered failure or punishment. It appears that University authorities in fair recognition of genuine grievance of students arranged for conducting of special examination in the aforementioned paper. The petitioner appeared and passed it. The examination was not conducted in this particular paper on a normal scheduled date of subsequent examination. The petitioner, in such circumstances, can be said to have passed the examination in one attempt. The petitioner appeared and passed it. The examination was not conducted in this particular paper on a normal scheduled date of subsequent examination. The petitioner, in such circumstances, can be said to have passed the examination in one attempt. The special examination conducted in paper 5th ST-3 substituted the paper which was said to be out of syllabus. The attempt to clear the said paper was, thus first. The petitioner, in facts of this case, has qualified the whole examination in first attempt. She, having secured the grade of first class first position is entitled to receive gold medal. In the facts of this case, this has to be the interpretation placed on Statute 10:2. 13. For the above stated reasons, this petition is allowed. By issuance of writ of Mandamus, respondents are directed to award the gold medal to the petitioner. Disposed of accordingly.