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2013 DIGILAW 424 (PAT)

Gaurav Kumar v. B. N. Mandal University

2013-03-22

MIHIR KUMAR JHA

body2013
CAV JUDGMENT In this writ application, the two petitioners have prayed for the following relief:- “commanding upon the Respondents to declare the final result of the petitioners (Session 2007-2011) and issue them the certificate of Bachelor of Technology of their respective discipline.” 2. Learned counsel for the petitioners has submitted that after the petitioners have already passed the 4th year examination in addition to the passing of the 1st and 3rd year’s examination, their result cannot be withheld on the ground that they have not passed any of the papers of the 2nd year examination. In this regard, it has been also stated that the petitioners in fact have also passed the remaining papers of 2nd year examination in which they had failed earlier and, therefore, they cannot be compelled to appear in all the examination of 2nd year and their result can also not be withheld on this ground. Reference in this connection has also been made on an order of this Court in CWJC No. 12533 of 2010. 3. Learned counsel for the University, on the other hand, has submitted that the petitioners have not passed the examination of the 2nd year and, therefore, the permission given to them provisionally for appearing in the 3rd year and 4th year examination in no way would make them entitled for declaration of their result. 4. The submission of the learned counsel for the petitioners that they have cleared the papers of the 2nd year examination in fact does not appear to be correct, inasmuch as, in paragraph no.8, it has been stated that they have filled up the form and deposited fees for 2nd year examination in all papers but according to them, it was done in hurry and under confusion because they had to fill up forms only in the failed papers. Admittedly, the petitioners had appeared in all the papers of the 2nd year. This would be evident from the mark-sheet contained in Annexure-3 series. In fact, their mark-sheet issued would also go to show that they have not cleared the 2nd year papers and as such, in view of the direction given in the order of this Court dated 16.8.2010 in C.W.J.C. No. 12533 of 2010 they would not be entitled for declaration of their result. In this regard the qualified statement of the petitioners in paragraph no. 15 reading as follows:- “15. In this regard the qualified statement of the petitioners in paragraph no. 15 reading as follows:- “15. That, the state that the petitioners have passed their all remaining paper of 2nd year examination which is enclosed 3 series of this petitioner but in the marks sheets of final 4th years of marks of 2nd year has not been added and has been shown marks waiting (M.W.) in the collum of 2nd year arbitrary manner.” will itself go to show that they have actually not cleared all the papers of the 2nd year examination though they had filled in the form and had also appeared in all the subjects as required in the Examination Regulations. 5. This Court would also find that earlier an order passed on 16.8.2010 in the case of Chandan Kumar & Ors. was itself hedged with a condition, inasmuch as, while allowing the petitioners of that case to appear in the final examination of the 4th year, it was conclusively held that till the petitioners do not clear all the papers of their previous academic session, their result of the next academic session shall not be published. The operative portion of the order of this Court dated 16.8.2010 being relevant is quoted herein below:- “The University is directed to permit the petitioners to appear at the final examination of the next academic session. It is further clarified till the petitioners do not clear all the papers of the previous academic session their result of the next academic session shall not be published. The provisions of the regulations with regard to the chances permissible for clearing papers of the previous academic session shall operate in its full force with all consequences as provided for in the regulations with regard to the petitioners.” 6. It has to be noted that subsequently the aforementioned Chandan Kumar with three others, who was the petitioner in CWJC No. 12533 of 2010 and in whose case the aforementioned order dated 16.8.2010 was passed, had approached this Court for the same relief as prayed in this writ application i.e. for declaration of their result of the session 2007-11 as also for certificate of Bachelor of Technology. The aforesaid prayer of Chandan Kumar and three others was considered in CWJC No. 17961 of 2012 by an order dated 9.1.2013 which for the sake of convenience and clarity is quoted hereinbelow:- “Having heard counsel for the parties as with regard to the following relief:- "That this application for issuance of a writ in nature of mandamus and/or any other appropriate writ order direction commanding upon the Respondents to declare the final result of the petitioners (Session 2007-2011) and issue them the certificate of Bachelor of Technology of their respective discipline." this Court in view of the following stand taken by the respondents in their counter affidavit:- "That eligible candidate /student is to be admitted by the college concerned itself. AS per Regulation (iv) of "Examination and Pass Marks" the terminal examination of 30 per cent marks out of 100 full marks was/is to be conducted by the college concerned. The examination of sessional work of total 400 marks was/is also conducted by the college concerned. Only the yearly annual examination of 70 per cent marks out of 100 full marks of written paper was/is conducted by the University concerned. That as detailed above, all the petitioners fail in the B.Tech 2nd year university examination, they can not be declared pass the 4th final year university examination, in addition to be irregularities/illegalities that they were admitted in 4th year courses/classed by the institution concerned without passing the 2nd year examination, time and again appeared in B.Tech 2nd year examination, then the opportunities available, appeared in the 4th year examinations without passing the 2nd year examination etc." is of the considered opinion that the result of the petitioner can be declared only if they have passed the examination as per the regulation framed by the Millia Institute of Technology. The university being the examining body it cannot transgress or override the statutes/regulations laid down for B. Tech examination. Counsel for the petitioner also does not question these statutes/regulations but on being instructed by some of the petitioners present in the Court has submitted that as a matter of fact all these petitioners have passed the 2nd year examinations but in their marksheet it has been wrongly shown as “qualified”. He has also submitted that as a matter of fact “qualify” will mean actually passing the examination. He has also submitted that as a matter of fact “qualify” will mean actually passing the examination. In the considered opinion of this Court, the academic discipline has to be maintained by all concerned i.e. the students, the College and the University, inasmuch as, all of them are bound by the statutes/regulations. If the University has taken a clear stand that the petitioners have not passed the two year examination, it would be still open for the student petitioners to establish before the University that they had passed such examination as laid down in the regulations/statutes but this Court cannot substitute its opinion in such academic matter. In that view of the matter, this Court must dispose of this application with a liberty to the petitioners to approach the authorities to demonstrate that they have actually passed the examination. With the aforementioned observations and direction, this writ application is disposed of.” 7. The case of the petitioners is exactly on the same footing as that of Chandan Kumar (supra), inasmuch as, alike the petitioners Chandan Kumar and three others also had not passed the 2nd year examination in all the subjects and yet had sought for a direction for their declaration of the result and issuance of certificate. 8. In that view of the matter, this Court can take no different view but would reiterate the observations and direction given in the order dated 9.1.2013 in the case of Chandan Kumar (supra) and would, therefore, give liberty to the petitioners as well to establish before the competent authority of the University that they had passed such examination of the 2nd year as required in the regulation/statutes. 9. Thus while this Court would not direct for declaration of the result of the petitioners to have passed their Engineering Course without their passing 2nd year examination, it would still give an opportunity to the petitioners to establish before the authorities of B.N. Mandal University as with regard to their claim to have passed the 2nd year examination so as to be entitled for declaration of their full and final result of the engineering course as also issuance of resultant certificate. If the petitioners would file their representation along with a copy of this order, the Registrar of the University, Respondent no.3, he shall pass a speaking order either allowing or rejecting the claim of the petitioners in accordance with the examination regulations governing the Bachelor of Technology (Engineering) Course of the petitioners. Within a period of one month from the date of receipt of a copy of this order to be enclosed with their individual and separate representation. 10. With the aforementioned observations, this application is disposed of.