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"2004 (2) JKJ 630" == ""
1. Petitioner is a student of M.A.M. College Jammu and appeared in and passed B.A. Part-I examination with subjects General English English Literature Political Science and Hindi. Thereafter he was admitted in B.A. Part-II in the said College and subject Hindi was changed to Philosophy as the combination of subjects as in B.A. Part-I was not available in the College. It is stated that subsequently before appearing in the examination in B.A. part-II the petitioner's subjects were changed to Hindi from Philosophy under the instructions of the University. The University allotted Roll No. 134065 to the petitioner who appeared in Part-II with subject Philosophy since subject Hindi along with combination of subjects of Part-I was not available in B.A. Part-II. The result of the petitioner however declared Later on. Vide Communication dated 1-8-2002 the University called upon the Principal M.A.M. College to submit the internal assessment marks of the petitioner in subject Hindi so as to declare his result. The University was however intimated by the Principal by his letter dated 8-8-2002 that the petitioner was never a student of Hindi in the College record. The Principal also informed the University that the petitioner though passed his B.A Part-I examination with combination of subjects General English English Literature Political Science and Hindi but was changed to General English English Literature Political Science and Philosophy in B.A. Part-II as the earlier combination was not available.2. The grievance of the petitioner is that his result has been withheld on account of non-availability of internal assessment marks in Hindi without there being no fault on his part and thus invoked the writ jurisdiction of the Court in issuing a direction to the University to declare the result of the petitioner for B.A. Para-II examination and further ordering respondent-2 to admit him in B.A.Part-III class in the College by issuing a writ in the nature of mandamus.3. The stand of the University respondent-1 projected in its counter is that the petitioner applied for admission in B.A. Part-II to the M.A.M. College with the same subjects combination which the petitioner had in B.A. Part-I and in the form which he had filled up for the examination in B.A. Part-II he again opted the same subjects which he had in B.A. Part-I. It is further stated that the petitioner however instead of attending classes in the subject Hindi attended his classes in the Philosophy subject. According to the respondent the petitioner when realised his ineligibility to appear in the subject of Philosophy he appeared in Hindi examination. But since he had not attended the classes in Hindi nor the internal assessment was made in the said subject it impelled the University to withhold the result of the petitioner as per provisions of the statutes. Respondent-1 has further submitted that the statutes have been framed in order to maintain the excellence in the standards of education and thus cannot be allowed to be washed out on account of error or otherwise in the assessment of eligibility of the candidate to appear in the examination in the subjects opted by him. Respondent-University further pointed out two options available to the petitioner - (i) that his result in Hindi subject be declared when he attains eligibility after attending classes or (ii) his result in Philosophy subject be got declared provisionally on the condition that he will qualify Part-I examination along with Philosophy as an additional subject after acquiring eligibility. According to the respondent the directions sought by the petitioner being contrary to the statutes could not be issued in exercise of a writ jurisdiction.4. The stand of respondent-2 Principal M.A.M. College in his counter affidavit is that there was no restriction for the subjects' combination in the year 1998 when Petitioner was admitted to B.A. Part-I. That the subject combination with which petitioner passed B.A.Part-I was not available in M.A. M.College in 2001 as a result of which the petitioner instead of subject Hindi changed the subject to Philosophy and was granted admission in B.A. Part-II in General English English Literature Political Science and Philosophy. That the petitioner attended the classes in the subject Philosophy and also appeared for internal assessment test in the said subject but in the annual examination for B.A. Part-II 2002 the petitioner instead of Philosophy subject appeared in Hindi subject. The University however has withheld the result of the petitioner for want of internal assessment marks awarded in Hindi subject. It is further stated that since subject combination was not available in B.A. Part-II what the petitioner had in B.A. Part-I in M.A.M. College the petitioner volunteered to opt Philosophy in place of Hindi and gave an undertaking to also appear in B.A. Part-I examination in Philosophy. Since the petitioner did not attend the Hindi classes nor appeared in the internal assessment test in B.A. Part-II it was not possible to furnish the assessment marks of the petitioner in Hindi subject as demanded by the University vide its aforesaid communication.5. In his rejoinder filed to the counter of the respondents it is reiterated by the petitioner that he had changed the subject for examination from Philosophy to Hindi as per instructions of respondent-1 University. That in such circumstances the respondent-University was under a legal obligation to declare the result of the petitioner since it was the University who was allowing the petitioner to appear in the examination after issuing him the Roll Number and ascertaining his eligibility from the record. That the petitioner has already been made to suffer for one year on account of non-declaration of his result besides serious harassment to which he has occasioned.6. I have heard the arguments and considered the rival contentions put across by the learned counsel appearing for the respective parties. The admitted facts borne out from the record are that the petitioner passed his B.A. Part-I examination with subjects General English English Literature Political Science and Hindi. After passing the examination in B.A. Part-I he had taken admission in B.A. Part-II in the M.A.M. College and opted for the subjects he had in B.A. Part-I. Since subjects' combination with which the petitioner passed B.A. Part-I examination was not available in the College the petitioner opted new subject Philosophy in place of subject Hindi attended the classes and appeared in internal assessment test in subject Philosophy. The petitioner has taken a specific plea in para 3 of the writ petition that before the examination for B.A. Part-II as per the instructions from the University the petitioner's subject for examination was changed to Hindi from that of Philosophy. But this assertion of the petitioner has neither been denied nor refuted by the respondent-University in its counter. It is also not disputed that the petitioner was allotted the Roll Number for appearing in examination of B.A. Part-II after scrutiny for his eligibility in regard to the subjects opted by him in B.A. Part-II. If this be the position it is not understandable how the University can later on come out with a plea that his result has been declared as Later on on account of non-furnishing of the internal assessment test marks in subject Hindi.Once the petitioner was allowed to appear in the examination by the University after scrutiny from the record as to his eligibility whether rightly or wrongly then the statute which empowers the University to declare the result Later on or withhold the declaration of the result of the candidate has worked itself out and the candidate cannot be refused the declaration of result subsequently for any infirmity which should have been looked into before giving permission to appear after allotment of the Roll Number in B.A. Part-II. Before permitting the petitioner to appear in B.A. Part-II examination it was incumbent upon the University Authorities as of duty to scrutinise the record in order to find out whether he was eligible to appear in the examination in the subjects he had opted. Where the University Authorities acquiesced in the infirmities on account of the statutes as to the eligibility of the candidate and allowed him to appear in the examination then by the force of the University statutes the University had no power to withhold the declaration of the result. The Apex Court while dealing with the similar situation in case Shri Krishan v. The Kurukshetra University Kurukshetra AIR 1976 SC 376 held as under :-...It is therefore manifest that once the appellant was allowed to take the examination rightly or wrongly then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear...Further the Apex Court held :-There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances therefore if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April 1972 then by force of the University Statute the University had no power to withdraw the candidature of the appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshatriya v. Vice Chancellor Ravishankar University Raipur AIR 1967 Madh Pra 194 at p. 197 where a Division Bench of the High Court of Madhya Pradesh observed as follows:From the provisions of Ordinances Nos.19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination there is no provision in Ordinance No. 19 or Ordinance No. 48 which would enable the Vice-Chancellor to withdraw the permission. The discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination it was not open to the Vice-Chancellor to withdraw that permission subsequently and to withhold his result.7. We find ourselves in complete agreement with the reasons given by the Madhya Pradesh High and the view of law taken by the learned Judges. In these circumstances therefore once the appellant was allowed to appear at the Examination in May 1973 the respondent had no jurisdiction to cancel his candidature for that examination. This was not a case where on the undertaking given by a candidate for fulfilment of a specified condition a provisional admission was given by the University to appear at the examination which could be withdrawn at any moment on the non-fulfilment of the aforesaid condition. If this was the situation then the candidate himself would have contracted out of the statute which was for his benefit and the statute therefore would not have stood in the way of the University authorities in canceling the candidature of the appellant.8. In the instant case neither the University nor the M.A.M. College Authorities took care to scrutinise their record to ascertain the eligibility of the petitioner with regard to the subjects he opted for in B.A. Part-II before he was allowed to appear in the examination. It was neither the case of suggestio falsi or suppressio veri. The stand taken by the petitioner in unequivocal terms and recited in the writ petition is that change of the subject from Philosophy to Hindi was under the instructions from the University before appearing in the examination and this plea having remained unrebutted unchallenged unassailed and unquestioned by the respondent-University in its demurrer assumes credibility and truthfulness. In such an event the petitioner cannot be made to suffer on account of the error deliberate or otherwise of the University and the statute under which it seeks to withhold the result on account of non-furnishing of internal assessment marks in the subject of Hindi in which petitioner was to appear has worked itself out and his result cannot be declared Later on. By the force of the University statute 9(e) relied upon by Mr. D.S. Thakur learned counsel appearing for the University and urged during debate the University had no power to withhold the result on account of the infirmities which should have been looked into before granting the permission for appearing in the examination and allotment of Roll Number to the candidate.9. Consequently I allow the writ petition and direct the respondent-University to declare the result of the petitioner of B.A. Part-II examination notwithstanding the non-availability of the internal assessment marks awarded to the petitioner in subject Hindi in B.A. Part-II in which he had appeared during 2001-2002 Annual Session under Roll No. 134065 and also direct respondent-2 to admit the petitioner in B.A. Part-III class in the College.10. The writ petition is disposed of in the terms indicated above.