Rajasthan High Court - Jaipur
Ashok Kumar Aseri vs University Of Jodhpur And Ors. on 8 October, 1993
Equivalent citations: AIR1995RAJ33, 1994(1)WLC321
JUDGMENT N.K. Jain, J.
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance has been field by Ashok Kumar Aseri against the order of learend single Judge dated 7-4-1993 dismissing his writ petition.
2. The facts which are necessary for the disposal of this sepcial appeal are that the petitioner-appellant was admitted in B.E. 1st year Course in the year 1989 in the Faculty of Engineering of the University of Jodhppur now knwon as J.N.V. University (hereinafter referred to as the University). He failed in eight theory papers and one sessional paper of Huminities in the year 1990. The petitioner-appellant again appeard in the year 1991 but was declared unsuccessful in four theory papers and two sessional papers. In the meantime on the representation of some other students of S.C./S.T. who were declared unsuccessful in five units, a Committee was constituted by the Vice Chancellor whose recommendations were accepted by the respondents and in pursuance of which Raj Kumar Meena and Rajesh Kumar Chawat were given admission in the next higher class. The petitioner-appellant also made a representation to allow him to keep term in the next higher class but his request was not accepted. Dissatisfied with the response of the University, the petitioner-appellant preferred a writ petition on the ground of discrimination. The learned single Judge of this Court vide its order dated 18-2-1992 issued notice to show cause. The respondent filed reply. The learned single Judge after hearing both the parties and considering the material on record dismissed the writ petition holding that the case of the petitioner is not similar with that of the two students viz. Raj Kumar Meena and Rajesh K. Chawal. He further held that the petitioner could not be promoted to next higher class.
Aggrieved with the order of the learned single Judge, the petitioner has filed this special appeal.
3. This special appeal has been filed on 13-4-1993. This Court vide its order dated 13-4-1993 issued notice to show cause in pursuance of which Mr. R.L. Jangid appeard. It has come up before us and as agreed by the counsel for the parties, the case is heard finally.
4. Mr. Choudhary, learned counsel for the petitioner-appellant has submitted that the learned single Judge has erred in holding that there is no discrimination. He has submitted that the petitioner has wrongly appeard in the year 1990-91 in all the theory papers as well as sessionals. He was required to appear only in theory papers. He argued that in view of the stay order if the petitioner is declared successful he may be given admission in next higher class while giving benefit of ATKT under Cond. 10(a). In support of his arguments he placed reliance on A. Sudha v. University of Mysore (1987) 4 SCC .537), Ashok Chand Singhvi v. University of Jodhpur (1989) 1 SCC 399) and Prahalad Kumar v. University of Rajasthan (1985 Rajasthan LR 580).
5. Mr. Jangid, learned counsel for the University has submitted that the learned single Judge has rightly come to the conclusion that the case of the petitioner is not similar with that of the two other students. He has submitted that the appellant cannot now contend that he appeard in all the theory papers as welt as sessionals due to mistake as the same was not raised before the learned single Judge and further that he cannot claim any right on the of basis of stay order. He has relied on Smt. Manju Lata v. Hitkari Cooperative Shiksha Mahila Mahavidylaya (1987 (II) RLR 84) and Dr. H.C. Chaturvedi v. State (WLR 1993 Raj 576).
6. We have heard learned counsel for the parties and perused the material on record as well as the case law.
7. The relevant Condition 10(a) prior to its amendment reads as below:--
" 10(a) If a candidate fails in not more than four Units in the Main Examination, and if he secures an aggregate of 45 per cent marks in the grand total, he shall be allowed to keep term in the next higher class. For the purpose of this Clause each theory paper and each Practical and Sessional shall be counted as one Unit."
Vide Notification dated March 21, 1992' Clause (e) was added and Clause 15 was deleted. After amendment Condition No. 10(a) reads as below:--
" 10(a) If a candidate fails in not more than four units in the examination, he shall be allowed to keep term (ATKT) in the next higher class. For the purpose of this clause each theory and each practical and sessional shall be counted as one unit."
"10(e) However, H-Huminities Unit of 1st B.E. will be addition to the number of units provided in Clause 10(a)."
Condition 10(a) prior to amendment provides that if candidate fails in nor more than 4 units and secures aggregate of 45% marks in the grand total he shall he allowed to keep term in the next higher class.
By the amendment in the Condition 10(a), the condition of securing the aggregate of 45% marks in the grand total was deleted but the condition that if a candidate fails in not more than four units in the main examination he shall be allowed to keep term in the next higher class was maintained, which includes each theory, practical and sessional unit. By the newly added Condition 10(e), in addition to the number of units provided in Condition 10(a), a candidate is also required to pass H-Huminities unit of Ist B.E. for getting admission in IInd year B.E. Therefore, according to these conditions if a candidate fails in not more than four unit plus in the Huminities unit, he shall be allowed to keep term in the next higher class.
8. Now, it is to be seen whether the case of the petitioner falls within the Clauses 10(a) and (e) or not.
In the instant case, the petitioner after getting admission in the 1st year B.E. appeared in the examination in the year 1989-90 but he failed in 8 theory papers and one sessional paper i.e. Huminities. The petitioner again reappeared in all the papers in the year 1990-91 but he remained unsuccessful in four theory papers and two sessionals viz., Machine Drawing and Mechanical Engineering Lab. Again in the year 1991-92 the petitioner took examination for the purpose of allowing the benefit of ATKT for the remaining four theory papers. Out of four papers the petitioner failed in three theory papers, and also declared absent in two sessional papers as he did not appear. The claim of the petitioner is that because he cleared sessional papers in the year 1989-90 except Huminities which is exempted by Clause 10(e), he is entitled to keep term in the next higher class. Undoubtely, in the year 1989-90, the petitioner cleared sessional papers except H-Unit but at that time the newly added Condition 10(e) was not come into force. Therefore, he was not entitled for any relief. Thereafter he again appered in all the papers in 1990-91 including sessional papers and in that examination he failed in four theory papers and two sessionals. There fore, when he again appeared in the exam ination in the year 1991-92 he was required to pass all the theory papers as well as two sessional papers but instead of doing so he did not appear in two sessional papers on the pretext that he had cleared them in the year 1989-90, which is not helpful. The contention of the appellant's counsel is not sustainable even on the ground as the same was not raised in the writ petition before the learned single Judge. Under these circumstances, the peti tioner cannot take any advantage of Condi tion 10(a) and (e) as he failed in six units and he cannot be granted relief on the ground of discrimination as the students who were given benefit failed in five units including Humi nities whereas the petitioner failed in six units.
Thus, the learned single Judge has rightly come to the conclusion that there is no discrimination and no interference is called for.
9. So far as the contention of learned counsel for the petitioner that the petitioner may be allowed to keep term in the next higher class in view of the ad-interim order of this Court granted by Single Bebch as well as by Division Bench is concerned, it has no substance. Though in the writ petition, the learned single Judge vide its order dt. 16-3-1992 directed the respondents to grant permission to the petitioner to provisionally attend the next higher class, the learned single Judge also made it clear that the order will not create any right in the petitioner for continuation of his studies, in case writ petition fails or the stay application is dismissed. Likewise in the Special Appeal, Division Bench of this Court ordered that in the meanwhile, the petitioner be allowed to appear in the required papers as per Rules in 1st and IInd Year of B.E. Examination but the order allowing him to appear in the examination as aforesaid will confer no right on him and he will not be entitled to get his result declared if his special appeal fails. On the strength of both these orders passed in the stay application, the petitioner cannot claim any right to be permitted to carry on studies in the next higher class. For the reason that if a person is not entitled to the relief in a writ petition, he cannot obtain relief by virtue of interim orders. A stay order preserves the right of the parties for the period it remains in operation, but it does not confer any right which it does not recognize. Keeping in view this legal situation, this Court while passing the orders was very much cautious about the complicacy which may arise after the decision of writ petition and special appeal, and observed that the provisional admission will be subject to the decision of main writ petition/special appeal and the appellant while prosecuting his studies in higher class on the basis of stay order was knowing the fate of such study. For that he himself is responsible and that he cannot blame anyone. Moreso, the appellant has not been able to clear the requisite units as per rules. Thus, merely on the basis of stay orders he cannot claim any right to be promoted in the next higher class. As regards the case law cited by the counsel for the appellant, the case of A. Sudha v. University of Mysore (1987) 4 SCC 537 : (AIR 1987 SC 2305) is not helpful to the appellant as in that case the College itself was responsible for admitting an ineligible candidate without any fault of the candidate and the candidate continued her studies by virtue of interim orders of Court. Therefore, their lordships of the Supreme Court while dismissing the appeal allowed the appellant to prosecute her studies in the MBBS Course, whereas in the instant case appellant was not admitted doe to the fault of the respondent. The case of Ashok Chand Singhvi v. University of Jodhpur (1989) 1 SCC 399 : (AIR 1989 SC 823) is also of no avail to the petitioner as in that case candidate did not conceal anything from the University but he was granted admission after considering all the relevant facts. In this background it has been held that the appellant cannot be made to suffer by putting in abeyance or cancelling his admission after his joining the classes for the mistake committed by the authorities themselves in granting the admission on the basis of a resolution. But the facts of the present case are not of such a nature. The appellant cannot take advantage of the case of Prahalad Kumar v. University of Rajasthan (1985 Rajasthan LR 580) as in that case the petitioner was given admission though he was having less than requisite percentage for admission to LL.B. (First Year) Course, by Principal of College and there was no allegation against the petitioner of an misrepresentation or malpractice or fault. Therefore, the learned Judges of the Division Bench held that the petitioner cannot be made to suffer for mistake of Principal and further that his two valuable years cannot be allowed to go waste. It may be stated that in all the cases cited by the counsel for the appellant there was mistake on the part of the authorities and, therefore, these cases have no nexus with the facts of the present case and they are not helpful to the appellant. On the contrary in Smt. Manju Late v. Hitkari Cooperative Shiksha Mahila Mahavidyalaya (1987) 2 Raj LR 34 the petitioner was not eligible for admission in B.Ed. course but given admission by college and studied regularly. She was not allowed to appear in the examination but under the interim order of the Court she took the examination. A Division Bench of this Court held that appearance of the petitioner in examination under orders of Court will not confer any right on petitioner. Likewise in Dr. H.C. Chaturvedi v. State of Rajasthan, 1993 WLR 576 Raj : (AIR 1994 NOC 242) wherein under the order of the Court the appellant was provisionally admitted and it was urged that he wasted his valuable time, the learned Judges of the Division Bench held that the appellant was not entitled to any relief on equitable grounds on the basis of interim orders of admission passed by the Court.
Reference may be made to U.P. Junior Doctors Action Committee Dr. B. Sheetal Nandwani (AIR 1992 SC 671) wherein their lordships of the Supreme Court depricated such practice and held that provisional admission should not be given.
Reference may also be made to recent decisions of the Apex Court, in Home Secretary, U.T. of Chandigarh v. Darshjit Singh Grewal, (1993) 3 SVLR (C) 91). The High Court in appeal directed the Principal to admit the respondent though the marks obtained by him were less than the marks obtained by the last candidate admitted in the College. Under the circumstances, their Lordships of the Supreme Court observed as under:--
"We are constrained to add that it would have been more appropriate if the High Court had not directed the respondents to be admitted in Chandigarh College by way of interim orders; it could have made these orders more appropriately at the final stage. Such interim orders, it is obvious, foreclose the options at the final hearing. Even if the W.P. fails, the mischief of the interim orders cannot be rectified in view of the change in situation, coupled with lapse of time. This is precisely the situation confronting us. We are therefore compelled to say that the High Court should not pass such orders except in those rare cases where the non-passing of such order would cuse such injury as could not be repaired later. These were not such cases. The respondents have been studying in the Guru Nanak Dev College, or such other college as the case may be, for a period of one year or more. They had obtained admission therein, in the Management quota, with their eyes open. They could have been and ought to have been asked to wait till the final disposal of the writ petitions, which could be -- and, indeed, were expedietiously heard. We are obliged to make these observations in view of the fact that we have come across several such orders passed by High Courts. Such mandatory orders ought not to be made at an interlocutory stage, except in rare cases, as emphasised hereinabove."
In St. John's Teachers Training Institute (For Women), Madurai v. State of Tamil Nadu (1993) 3 SVLR (C) 7, the High Court vide its interim order granted temporary recognitions to the institutions and in number of cases under orders of the Court permission to the students to writ the examination was given. Ultimately the High Court held that the institutions have not complied with the rules framed in GO Ms. No. 536. Under the circumstances the High Court refused to grant relief and it has been held that they cannot take advantage of the interim orders passed by the Court directing the Government to grant temporary recognitions. In appeal their Lordships of the Surpeme Court held that the High Court rightly emphasised the need for maintaining very high standards of education, sports adminsitration and maintenance of the teachers training institutions. No fault can be found with the judgment of the High Court. Their lordships of the Supreme Court has held as under:--
"Before we part with this judgment we consider it necessary to strike a note of caution in respect of passing of interim orders by Courts directing the students of unrecognised institutions, to appear at the examinations concerned. In view of the series of judgments of this Court, the Courts should not issue fiat to, allow the students of unrecognised institutions to appear at the different examinations pending the disposal of writ applications. Such interim orders affect the carrers of several students and cause unnecessary embrassment and harassement to the authorities, who have to comply with such directions of the Court. It is a matter of common knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when dates for examinations are noified. Many of such ' institutions are not only "masked phantoms" but are established as business ventures for admitting substandard students, without any competitive tests, on basis of consideration which cannot serve even the interest of the minority. There is no occasion for the Court to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced. In this process students without knowing the design of the organisers of such institutions, become victim of their manipulations."
As already stated in the case in hand it is not that the petitioner is being denied admission in higher class merely on technicalities but he is refused admission as he could not pass the requisite papers and failed.
Therefore, provisional admission granted on the basis of interim orders of this Court would confer no right to get his result declared.
10. Under these circusmtances, the petitioner-appellant cannot claim any relief on the basis of interim orders. In view of what we have discussed above, the petitioner cannot be allowed to keep term in the next higher class, and we don't find any error in the order of learned single Judge, so as to call for any interference.
11. Consequently, the special appeal has no force, so it is hereby dismissed with no order as to costs.