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Judgment
D.K. Seth, J.—The Petitioner filed Writ Petition No. 5288 of 1996. The said writ petition was disposed of by an order dated 13th February, 1996 with the following direction:
In that view of the matter, the Respondent No. 2 is hereby directed to consider the petitioner''s representation which the Petitioner shall make within one week from date and allow her provisional admission and to appear in the Third Year Examination with Back Paper as provided under the Rules if she is found eligible. If the Petitioner is provisionally admitted, in that event, the University shall consider the question of permitting the Petitioner to appear in the Examination in accordance with the said Rules when applied for.
The said direction never intended to mean that the Petitioner should be given admission and be allowed to appear in Third Year Examination along with permission to appear in Back Paper straightaway. On the other hand, it was provided that she may be allowed provisional admission as provided under the law if she is found eligible and upon being found so eligible and permissible under the law, if she is provisionally admitted, the University may consider the question of permission to appear in the Examination in accordance with the Rules. Therefore, the governing factor was the Rules. The provisional admission was dependent on the rules to the extent that the rule permits such provisional admission and that the Petitioner is eligible under the said Rules for provisional admission. Only if these two conditions are fulfilled, she would be given admission. Upon such admission, if under the Rules she could be precluded to appear in the Final Examination, the University has to consider the same. In other words, both the College and the University were to act on the basis of the rules. There was no mandate on the University to permit the Petitioner to appear in the Final Examination if she is not otherwise eligible to appear in the Examination even If she is provisionally admitted. Similarly there is no mandate on the College to provisionally admit the Petitioner unless the two conditions as mentioned above are fulfilled. Even if the College admits the Petitioner provisionally in contravention of the Rules though purported to be acting on the basis of the order passed in the writ petition, but such provisional admission would be void if it contravenes the rules and cannot be a ground for the Petitioner to seek permission to appear in the Final Examination in contravention of the Rules. if there are specific rules and so long they are not declared ultra vires, the same are binding on the Petitioner who sought admission subject to the said rules. The High Court, in exercise of its writ Jurisdiction, cannot direct the University to contravene its own rules.
In the present writ petition, it is contended that the Petitioner was permitted provisional admission by the College in terms of the said order dated 13th February, 1996 passed in Writ Petition No. 5288 of 1996. If the Petitioner Is not eligible to such provisional admission, even if such provisional admission is given allegedly pursuant to the said order which never intended such a situation, the provisional admission cannot be said to have been given pursuant to the said order.
In order to appreciate the present case, it is necessary to refer to the brief facts which are as follows:
The Petitioner appeared in Second Year LL.B. Examination in the year 1995. She secured 40% marks in each individual paper/subject but she failed to secure minimum 48% marks in aggregate. The Petitioner admits that unless she secures 48% marks in aggregate, she is not eligible for the Third Year LL.B. Examination. But, however, she can improve her marks by appearing in one of the papers or subjects as Back Paper along with Third Year LL.B. Examination.
The said order was passed on the basis of the concession sought to be made by Mr. J. N. Verma that the Petitioner was entitled to appear in the Back Papers and it is the College which can permit the Petitioner to do so and with this the University had nothing to do. He further contended that while permitting the Petitioner to appear in Back Paper, the Petitioner may be provisionally admitted and permitted to appear in Back Paper with the Third Year Examination. While interpreting the rule, the said submission was made from the Bar. In the said order, the Court however, did not go into the said question and did not interpret the rules. On the basis of such concession, a direction for consideration, as quoted above, was given without entering into the merits of the case either by interpreting the rules or deciding the question of eligibility of the Petitioner. Therefore, the said decision cannot be said to have laid down any ratio decided with regard to the Rules and the eligibility of the Petitioner thereunder. The Petitioner has also not challenged the vires of the rules.
The question of interpretation of the said rules arose in the case of Suhail Ahmad v. Kanpur University (Sri Sahuji Maharaj Vishwa Vidyalaya. Kanpur) and Anr. being Writ Petition No. 11551 of 1996, disposed of on 4th April, 1996. The interpretation as given in the said decision was upheld in Special Appeal No. 310 of 1996 Suhail Ahmad v. Kanpur University (Sri Sahuji Maharaj Vishwa Vidyalaya, Kanpur) and Anr. by a judgment dated 9th April, 1996 rendered by the Division Bench.
From the Mark-sheet annexed with the writ petition and the Form filled up by the Petitioner which are Annexure ''2'' to the writ petition, it appears that the Petitioner had obtained 282 marks in the Second Year Examination out of 600 marks which is calculated as 47% whereas the minimum pass mark is 48% aggregating to 288 out of 600. The English translation of the rules have been appended as Annexure ''CA-1'' to the counter-affidavit which was not available while the earlier writ petition was decided in which case the Hindi version was sought to be translated at the Bar and interpreted by Mr. J. N.Verma.
The said Rules provide that a student may appear in the next regular examination of the University in one subject with a view to improve his result in the same paper on certain condition. This facility is available to two kinds of students. The first of its kind are passed examinees and the second kind were failed students. So far as the first kind is concerned, no restrictions have been imposed. A passed candidate is entitled to admission in the higher class of the same course and appear in the Examination of that higher class as well. Therefore, he can offer Back Paper along with his regular examination of the higher class.
But so far as the students who have been unsuccessful may also be allowed to appear in Back Paper provided he gets 33% at the Graduate level and 36% at the Post Graduate level and 48% in Law in the minimum excluding the marks obtained in Practical Examination with a proviso relaxing the minimum qualifying total mark by 10 in Post Graduate and Law. Since we are concerned with the Law Examination, we will be confining ourselves with the provision relating to Law Examination alone.
Admittedly in Law Examination, the total marks in one year is 600. Therefore, the pass mark of 48% calculates at 288. This 48% in aggregate is also subject to the condition that the student must get minimum 30% in each paper. By simple analogy, 48% aggregate being the pass mark subject to 30% in each paper means that a student getting 48% marks in aggregate and securing 30% in each paper cannot be said to be an unsuccessful candidate. A student securing 48% marks still declared unsuccessful means that though he had secured 48% in aggregate but he has not been able to secure 30% at least in one paper. If he is unable to get 30% in more than one paper even if he secures 48% in aggregate and seeks permission to appear in Back Paper only in one subject being made available, the said facility, in no way, will benefit such student because even if he is successful in one Back Paper by improving his mark but still then he having secured less than 30% marks in another or more than other paper, he cannot be declared passed. Therefore, the simple meaning of unsuccessful candidates securing 48% marks is that a student getting 48% marks having failed to secure 30% marks in one paper would be allowed to appear in Back Paper. It does not conceive of any other meaning.
Now there has been a relaxation provided in the rules in respect of Post Graduate and Law Examinations to the extent that the minimum aggregate less by 10 marks and 36% or 48% respectively is available to such students. The said relaxation provides that a student in Law Examination securing 278, namely, 10 marks less than 288 being the pass mark is also eligible to Back Paper in one subject only. Such relaxation of 10 marks is available only for eligibility for appearing In one Back Paper but such students would not be eligible for admission or examination in the next higher class. It is further provided that such students of the First Year and Second Year of the Law course eligible for Back Paper according to the rules may be admitted provisionally in the next higher class of the same course on condition that in case they failed in the Back Paper, the admission to higher class shall stand cancelled automatically. But no where it has been provided that by reason of such provisional admission, a student would be eligible for appearing in the Examination of that higher class and offer Back Paper along with the Examination of the higher class. Though it has been provided that provisional admission can be made but immediately before it was provided that eligibility for appearance in the Back Paper would not be an eligibility for admission in Examination of the higher class.
In the present case, from the Mark-sheet, it appears that the Petitioner had obtained 282 marks in aggregate and in each of the subject, she secured above 30% marks. Therefore, by reason of relaxation of 10 marks, she also comes within the purview of eligibility to appear in Back Paper. Therefore, she also can be admitted provisionally in the next higher class with the conditions mentioned above but there is no question of her appearance in the Examination of the next higher class in which she stands admitted provisionally. The question of her provisional admission is dependent on the results of the Back Paper. Since the rule does not prescribe appearance in the Examination of the next higher class, this Court cannot direct the University to allow the Petitioner to appear in the Third Year Examination along with Back Paper. The University also cannot allow the Petitioner in such circumstances to appear in the Third Year Examination in view of the aforesaid rules. Therefore, the Petitioner may appear in the Back Paper and if she is successful, her provisional admission would be treated to be valid. The only advantage she will get is that she would be eligible for appearing in the Third Year Examination next after the declaration of result of the Back Paper or the Examination for the year in which she had been provisionally admitted, as the case may be.
However, the relaxation of provisional admission on the face of the present rules facilitates only a continuous study and completion of the course but does not save the ultimate year of Examination.
The contention of the Petitioner that she may be permitted to appear in both the Examinations together cannot be acceded to. Inasmuch as unless her provisional admission is confirmed by her passing in the Back Paper, she would never be eligible to appear in the Third Year Examination. Such eligibility can be decided only when the result of the Back Paper is declared and not before. In case she is unsuccessful in the Back Paper, she would be required to appear in the Second Year Examination in all papers since the rules prescribe eligibility to appear in Back Paper only for once. Therefore, it would be too hypothetical to permit her to appear in the Third Year Examination along with Back Paper. Inasmuch as if she fails in Back Paper, then her result of the Third Year even if she passes the Third Year Examination would be void and she would again be required to appear in the Second Year Examination as a whole.
I am fortified in my above view by the decision in the case of Suhail Ahmad (supra).
In the result, the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs.