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2013 DIGILAW 404 (HP)

RAKHI SHARMA v. HIMACHAL PRADESH UNIVERSITY

2013-05-08

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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JUDGMENT DHARAM CHAND CHAUDHARY, J. 1. THE complaint is that once the petitioner was BCA-IIIrd allowed to appear in year supplementary examination, held in the month of October, 2012, the respondent-University could have not withheld her result for any reason whatsoever and that withholding of her result by the respondent-University is highly illegal, arbitrary and also against the principles of natural justice. Hence, this writ petition with the following prayer:- "That a writ of mandamus may very kindly be issued thereby directing the respondents to declare the result of the petitioner of BCA IIIrd year examination without any further delay." 2. THE case, as set out in the writ petition is that the petitioner after having qualified for BCA Ist year examination in the month of April, 2012 had enrolled herself in BCA-IIIrd year. The respondent-University though failed to issue roll number to her, however, she was allowed to appear in the examination as per University Rules as a stray case candidate. In support of such contentions the petitioner has placed reliance on BCA IInd year detail marks card, Annexure P-1 and Annexure P-2, the sheets whereby the Centre Superintendent of Palampur Examination Centre had forwarded the answer sheets of the candidates who appeared in supplementary examination of BCA final year held in the month of October, 2012. However, when her result was not declared, she made the representation, Annexure P-3, which has been returned to her with the remarks "1st year passed in April 2012" "not eligible to appear in October, 2012/out of session". Aggrieved from withholding of her result, the petitioner has approached this Court by filing the present writ petition. The stand of the respondent-University as disclosed from the reply to the writ petition reads as follows: "That the petitioner has passed BCA 1st year examination in April, 2012 and becomes eligible to appear BCA IIIrd year in regular session of annual examination to be held in April, 2013 through Govt. College, Rajpur, however, the petitioner herself appeared in supplementary examination of October, 2012 in full subjects as stray case, which was not regular session and only for those students, who are under re-appear or compartment, as the BCA Course is practical based and the practical examinations are conducted in annual sessions every year in the concerned colleges. College, Rajpur, however, the petitioner herself appeared in supplementary examination of October, 2012 in full subjects as stray case, which was not regular session and only for those students, who are under re-appear or compartment, as the BCA Course is practical based and the practical examinations are conducted in annual sessions every year in the concerned colleges. Further as per Ordinance 9.68(e) of the H.P. University Volume I The First Ordinance of HPU 1973 as amended up to date, the person who has cleared all the papers of First year is permitted to be promoted to third year. But in the case of petitioner, she cleared all the papers of 1st year in April, 2012 and, therefore, she could appear only in the annual examination to be held in April, 2013 as a regular student through the concerned college for which the replying respondent does not have any objection provided she otherwise fulfils other requirements. Hence, the present writ petition is not maintainable and deserves to be dismissed on this sole ground. It has further been averred that the petitioner was not eligible to appear in BCA IIIrd year in supplementary examination of October, 2012, thus the roll number was not sent. She is required to appear in regular session of April, 2013 through College and also to appear in the practical examinations conducted in the college or examination centre. But she herself appeared as a stray case at her own risk and cost, whereas no roll number was issued by the replying respondent." 3. IT is in this back-drop, we have gone through the record and also heard learned counsel on both sides. 4. AT the very outset and for the sake of convenience, Ordinance 9.68(e) pressed in service on behalf of the respondent-University is reproduced herein as under:- "9.68(e) Eligibility for Promotion: A candidate should have passed at lease 50% of papers of first year to get promoted to next year. Before the candidate is promoted from second year to third year all the papers of first year should be cleared." A bare perusal of the above provisions amply demonstrates that a candidate is eligible for promotion to next higher class if he has passed first year examination with atleast 50% marks. Additionally, for his promotion from IInd year to IIIrd year, all papers of Ist year need to be cleared. 5. Additionally, for his promotion from IInd year to IIIrd year, all papers of Ist year need to be cleared. 5. AS per admitted case of the parties, the petitioner had cleared her all papers of 1st year in the month of April, 2012. As per Ordinance 9.68, the examination of the course, namely, BCA (Bachelor of Computer Application) is being held annually. Therefore, after acquiring the eligibility in the month of April, 2012, the petitioner should have appeared in BCA-IIIrd year examination only at the end of the year, i.e. in April, 2013, that too, having been enrolled in BCA-IIIrd year after acquiring the eligibility criteria, i.e. clearance of all the papers of 1st year, which she could clear in the month of April, 2012. It is for this reason, the respondent-University did not issue roll number to her. Meaning thereby that the petitioner was not allowed to appear in BCA-IIIrd year supplementary examination in October, 2012, held for those students who had to re- appear or were placed under compartment in any of the subjects. As a matter of fact, the petitioner was not allowed to sit in the examination because as per her own case as set out in para 5 of the writ petition, she was not issued the roll number by the respondent-University. On the other hand, her ground of challenge is that she was allowed to appear in BCA-IIIrd year examination and had she not been eligible, would have not been allowed to sit in the examination. She has thus blown hot and cold in the same breath. As a matter of fact, when as per her own admission, the respondent-University did not issue any roll number to her, it does not lie in her mouth to say that it is the respondent- University, which allowed her to sit in the examination and as such, now is under an obligation to declare her result. The contentions in the writ petition being self-contradictory seem to have been raised deliberately to mis-lead this Court. 6. WE find considerable force in the case as set out by the respondent-University that the petitioner appeared in the examination in question as a stray candidate at her own risk. The contentions in the writ petition being self-contradictory seem to have been raised deliberately to mis-lead this Court. 6. WE find considerable force in the case as set out by the respondent-University that the petitioner appeared in the examination in question as a stray candidate at her own risk. As a matter of fact, knowing fully well the consequences of her appearance as a stray candidate, she cannot be allowed to turn around and not justified in accusing the respondent-University for her own omissions and commissions. We are not inclined to take a view of the matter that the petitioner was ignorant of the consequences of her appearance as a stray case and also the causes leading to non-issuance of roll number to her. In a case titled Shri Biri Singh versus H.P. University and another, 1999(1) Shim. L.C. 265 having more or less identical facts, a Co-ordinate Bench of our own High Court has held as under:- "4..... A person who is aware of the provision to reappear to improve his prospects in a division must equally had been aware of the limitations on such concession which has been specially granted and which is normally not available. Therefore, the petitioner cannot claim to be totally innocent to exculpate himself and seek a benefit out of a serious error committed in flagrant violation of the Statutes of the University and seek assistance of this Court for protection of such undeserved benefit which if granted would be opposed to law." 7. THE apex Court in Maharshi Dayanand University Versus Surjeet Kaur, 2010) 11 SCC 159, where the respondent had managed to get examination form registered by pressing in aid a wrong provision and ultimately even was allowed to sit in the examination also and when her result was not declared, has approached the Court by raising the plea of estoppel against the University, has held that no one can plead estoppel/promissory estoppel against a Statute to gain any advantage merely on account of the fact that she was allowed to appear in the examination. Therefore, the issue in the present writ petition is also covered by this judgment against the petitioner. 8. Therefore, the issue in the present writ petition is also covered by this judgment against the petitioner. 8. RELIANCE on behalf of the petitioner has been placed on the judgment of apex Court in Shri Krishan v. The Kurukshetra University, Kurukshetra, AIR 1976 SC 376 where the petitioner though was allowed to appear in the examination, however, his candidature later on was withdrawn on account of he having failed to produce the certificate of his employer and it is in that back-drop their Lordships of the apex Court have held that once he was allowed to appear in the examination, the respondent- University had no jurisdiction to cancel his candidature for that examination. With due regard to the case law so cited, this is a judgment on the facts of that case and not applicable to the present case for the reasons that here the respondent- University never allowed the petitioner to appear in the examination and rather she herself appeared as a stray candidate with the permission of the Examination Centre Superintendent. Under which rule she appeared in the examination, nothing has been brought on record. The Centre Superintendent has also not been arrayed as a party-respondent in this writ petition. 9. IN the given facts and circumstances of this case, we do not find it proper to tinker with the provisions under the Ordinance as the petitioner has failed to make out a case for any interference by this Court. It is not a case that she is debarred for all the times to come to appear in BCA-IIIrd examination. She was eligible to appear in such examination in April, 2013 as has come in reply to the writ petition to which there is no rejoinder. We thus find no merit in this writ petition and the same deserves dismissal. 10. FOR all the reasons hereinabove, this writ petition fails and the same is accordingly dismissed. Pending application(s), if any, also shall stand disposed of. No order as to costs.