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Satish K. Agnihotri, J.—WP (C) Nos. 7145 of 2010, 7339 of 2010 & 1168 of 2011 involve common facts as well as common question of law, thus, they are being considered and disposed of by this common order. By these petitions, the petitioners seek a direction to the respondents No.3 & 4 i.e. Chhattisgarh Swami Vivekanand Technical University, Bhilai (for short "the University") and Shri Shankaracharya College of Engineering & Technology, Bhilai (for short "the College"), respectively, to declare the result of the petitioners in the backlog subject wherein, the petitioners appeared in the second time after failing in the concerned subject in the regular as well as in the first opportunity, thereafter. Further the respondents be directed to permit the petitioners to continue their studies on the basis of result to be declared in the backlog subject, in the second attempt.
The facts, in brief, are that the petitioners failed in one subject and thereafter, they were permitted to write the examination in the same subject, wherein they again failed in the said subject. In the meantime, the petitioners were allowed to continue their studies. Subsequently, it was found by the University that under Ordinance No. 12 of the Ordinance for degree in Master of Engineering/Technology (ME/M. Tech.) of the Chhattisgarh Swami Vivekanand Technical University (for short "the Ordinance") (Annexure - P/8 to WP (C) No. 7145 of 2010), there is no provision to permit the failed candidate to clear backlog in the second ATKT (allowed to keep term) examination and if a candidate fails in the first ATKT examination he/she shall be treated as having failed.
WP (C) No.7145 of 2010 : The petitioner was admitted to M.E. (E&T) (Communication) course, in the College, which is affiliated with the University. The petitioner passed the fist semester. In the second semester, the petitioner failed in Embedded Technology in Communication System paper. However, the petitioner was permitted to continue to study in the third semester and thereafter, the petitioner was again allowed to appear in the communication paper in second ATKT. Subsequently, the result was not declared, as according to the University the candidate was not permitted to write examination in the backlog paper second time, if he/she fails in first round after failing in the regular examination of the semester.
WP (C) No.7339 of 2010 : The petitioner was admitted in M.E. (E&T) course, in the college. The petitioner failed in the first semester in Microwave & Radar Communication Engineering. Thereafter, in the second semester, the petitioner was allowed to appear in the backlog. There she failed in the backlog subject. Having failed to obtain minimum qualifying marks, the petitioner was allowed to appear in the backlog paper in the second time. However, the result was not declared, as aforestated, but the petitioner was allowed to continue in third semester and thereafter, also in the fourth semester.
WP (C) No.1168 OF 2011 : The petitioner admitted to M.E. (Elect) (Power System Engineering) course in the month of July, 2008 in the college. The petitioner passed in the first semester. The petitioner could not obtain minimum qualifying marks in one paper of the second semester. The petitioner was allowed to continue the studies and further the petitioner was permitted to appear in the said paper wherein the petitioner failed again.
Shri Nair & Shri Dubey, learned counsel appearing for the respective petitioners, would submit that under clause 8 of the Ordinance No.12, there is no restriction on clearing the paper any time, not on the first available opportunity only. The petitioners were permitted to appear in the second time again in the backlog papers. They were also permitted to continue their studies in the subsequent semesters. Thus, the respondent University and the College be directed to declare the result of the petitioners of the backlog subject examination and the continuation in the subsequent semester be regularized.
It is further contended that Ordinance No.19 of the Ordinance for MBA Degree Course of the same University (Annexure - P/9 WP (C) No.7145 of 2010), deals with M.B.A. Degree Course and as per clause 5 D of the Ordinance No.19, the candidates are allowed to carry 2 ATKT years in the particular subject. The same logic may be applicable in the case of M.E. course also. It is lastly urged that the Ordinance No.12 (Annexure - R/2 to WP (C) No.7145 of 2010) has been amended immediately thereafter where under clause 8, two attempts are allowed in the backlog paper for the ATKT examination. The petitioners are entitled to have benefit of the same.
On the other hand, Shri Shukla, learned counsel appearing for the respondent University, would submit that the subsequent Ordinance No.12 (Annexure - R/2 to WP (C) No.7145 of 2010) was not applicable, as assent of the Chancellor was given on 20-4-2011. Thus, the provision permitting clearing the backlog paper in two attempts would come into force after the assent of the Chancellor. In the case on hand, the concerned examinations have taken prior to 20-4-2011. Shri Shukla would further submit that the University has framed Ordinance comes into effect only after consent of the Chancellor. The Ordinance No.19, which is applicable for M.B.A. Degree Course is not applicable to M.E. Course, as there is a separate Ordinance No.12 and there in clause 8 (a) it is clearly provided that the candidate has to clear the backlog paper in the first attempt, otherwise the candidate shall be treated as having failed in the concerned semester.
Shri Shukla would next submit that the petitioners were permitted to appear in the second attempt while continuing their course without approval of the University and the University had accordingly informed the College, as is evident from the letter dated 30-8-2010 (Annexure - P/1 to WP (C) No.7339 of 2010) wherein it is categorically stated that the candidates have failed in the backlog paper, thus they may be declared as failed. The University has warned the College not to repeat such carelessness in future in the interest of students. In view of that, since the petitioners have failed in the first attempt, the petitioners cannot be allowed to write the examination of the backlog paper second time and the petitioners be treated under the provisions of the Ordinance No.12 as failed in the concerned semester.
We have heard learned counsel appearing for the parties to the lis, perused the pleadings and the documents appended thereto.
Clause 8 of the Ordinance No.12 reads as under :
8 a) An examinee who fails to obtain minimum marks/grades in not more than one theory paper or one Practical/Viva Voce at any of the semester examinations shall be declared to have obtained A.T.K.T. (allowed to keep term). Such candidates may be admitted provisionally to the class for next higher semester. In case he fails to clear the backlog in the A.T.K.T. examination he shall be treated as having failed.
b) A candidate failing in more than one theory paper or practical/viva voce in any semester examination shall be treated to have failed.
c) The failed candidate as per para-8 (a) and (b) above shall not be permitted to continue in the course.
d) The candidate failing in the final (fourth in case of full time and sixth in case of part time) semester examination may seek re-admission in the semester. However he/she shall submit his/her dissertation after necessary improvement and/or modification or re- written dissertation on a different topic suggested by the Head of the Department in the college.
We have considered the dispute thoughtfully and we are of the view that the Ordinance No.12 would be applicable in M.E. course. The petitioners are pursuing the M.E. course and, as such, the Ordinance No.19, which is for M.B.A. degree course is not applicable in case of the petitioners.
The subsequent Ordinance, which was assented by the Chancellor on 20-4-2011, cannot be given retrospective effect. Even if the candidates by mistake of the college, have been permitted to write the examination in the second attempt of the backlog paper, in the first attempt he/she would be declared as failed in the semester examination.
Section 39 of the Act, 2004 reads as under :
Ordinance how made.-(1) All Ordinance except the first Ordinance shall be made by the Executive Council.
(2) An Ordinance made by the Executive Council shall come into force from the date of its approval by the Kuladhipati.
Section 39 of the Chhattisgarh Swami Vivekanand Technical University Act, 2004 (for short "the Act, 2004") provides that except the first Ordinance, the other Ordinances will come into effect after assent of the Chancellor is given. There is no otherwise any indication granting retrospectvity to the Ordinance. Thus, the petitioners would not be entitled to have any benefit under the aforestated amended Ordinance No.12.
Indisputably, the petitioners were allowed to continue in the subsequent semesters, but that cannot be a ground for issuing a direction to the concerned authority to grant approval and declare the result of the backlog paper examination held in the second attempt. The University had already informed the college concerned that the petitioners having failed in the backlog paper be declared as failed in the semester.
In view of the aforesaid condition, even if the candidates have been allowed to continue their studies in the subsequent semesters, we are of the considered opinion that the illegal action cannot be validated by a judicial order.
The Supreme Court in Harpal Kaur Chahal (Smt.) v. Director, Punjab Instructions, Punjab and Others, wherein the question was whether the appointments made illegally can be legalized on the ground that others have got the benefit of the same, it was observed that "Article 14 cannot be extended to legalise the illegal orders though others had wrongly got the benefit of the orders." (Also see : Ashok Kumar Sonkar v. Union of India and Others).
For the reasons mentioned hereinabove and applying the well settled principles of law to the facts of the present cases, the writ petitions deserve to be and are accordingly dismissed. There shall be no order asto costs.