Delhi High Court
Guru Gobind Singh Indraprastha ... vs Abhinav Pandey & Ors. on 16 October, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 01.10.2018
Date of pronouncement: 16.10.2018
+ LPA No.248/2018 & C.M. Nos.18034-35/2018
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY .... Appellant
Through Ms.Ekta Sikri, Adv. with Mr.Jasbir
Bidhuri, Adv.
versus
ABHINAV PANDEY & ORS ..... Respondents
Through Dr.Amit George, Adv. with
Mr.Rishabh Dheer, Adv.,
Mr.Swaroop George, Adv. &
Ms.Rajsree Ajay, Adv. for R-2.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J
1. The present intra court appeal impugns the judgment dated
23.01.2018, passed by the learned Single Judge in WP(C)
No.2028/2016, allowing the captioned writ petition filed by
respondent no.1 and directing the appellant/Guru Gobind Singh
Indraprastha University (hereinafter referred to as the "University") to
award a Gold Medal to the respondent no.1 for his remarkable
LPA No.248/2018 Page 1 of 23
academic performance in the five year B.A.LL.B. (Hons.) course
conducted during the academic session 2010-2015.
2. The relevant facts emerging from the record are that the
respondent no.1 was enrolled in the B.A.LL.B. (Hons.) course of the
respondent no.2/Amity Law School (hereinafter referred to as
"College"), which is affiliated with the appellant/University. The said
course was for a period of five years, from 2010-2015, at the end of
which period, the respondent no.1 was to be awarded his degree in the
year 2015. The respondent no.1 had admittedly been regularly
appearing in all the semester examinations from time to time and had
obtained outstanding results. However, on 23.05.2013, during his
Sixth Semester Examinations, he contracted Chickenpox and fell
severely ill and was, therefore, advised by the doctor not only to take
rest, but also to avoid physical contact with other persons, it being a
contagious disease.
3. In the light of the medical advice given to him, the respondent
no. 1 did not appear in two out of a total of five papers in the Sixth
End Semester Examinations, namely, Code of Civil Procedure-2 and
Code of Criminal Procedure-2, which were scheduled to be held on
29.05.2013 and 31.05.2013 respectively, even though he had obtained
very high marks in the internal examinations in the aforesaid two
subjects. Immediately on being given a Fitness Certificate dated
03.06.2013 by the treating doctor at Central Government Health
Scheme Wellness Centre, Gole Market, New Delhi, the respondent
no.1 appeared in the remaining examinations of the Sixth Semester
scheduled from 04.06.2013. Thereafter, in accordance with the
relevant Ordinance of the appellant/University, the respondent no.1
LPA No.248/2018 Page 2 of 23
who had been marked "absent" in the aforesaid two subjects papers he
had missed due to his illness, wrote the examination for the same in
the following year 2014, along with his already scheduled
examinations of the Eighth Semester and once again, performed very
well.
4. The respondent completed his B.A.LL.B. (Hons.) course in the
prescribed timeline of five years and when he graduated in the year
2015, he obtained the highest Cumulative Performance Index (CPI) of
80.56 in the appellant/University. Based on his performance, the
respondent no.1 expected that he would be awarded the Gold Medal
which is conferred by the appellant/University upon the student with
the highest CPI, which is calculated on the basis of his/her
performance throughout the entire course of study. However, on
27.02.2016, when the respondent no.1 visited the respondent
no.2/College he learnt that he was being denied the Gold Medal
despite his having obtained the highest CPI, on the ground that he had
not cleared the aforementioned two examinations in the first attempt
in the year 2013 and had only cleared the same in the next academic
session, in the year 2014. Aggrieved by the same, he submitted
representations to the Vice-Chancellor as also the Controller of
Examinations but to no avail.
5. In the above circumstances, the respondent no.1 approached
this Court by way of WP (C) No.2028/2016, seeking a direction to the
appellant/University to award him the Gold Medal for the B.A.LL.B.
(Hons.) course for the academic session 2010-15. In his writ petition,
the respondent no.1 had also impleaded respondent no.3/Ms.Prachi
LPA No.248/2018 Page 3 of 23
Gupta, who had been awarded the Gold Medal for the same session
even though she had a lesser CPI than him, i.e., 79.14.
6. Upon notice being issued in the captioned writ petition,
separate counter affidavits were filed by the appellant/University and
the respondent no.3, both of whom opposed the claim of the
respondent no.1 by primarily contending that the main pre-requisite
for awarding a Gold Medal was that the student must pass every
paper/course in the first attempt. Therefore, the respondent no.1
having not appeared on the first available attempt for every
paper/course and having cleared the same only in his subsequent
attempts, did not fulfill the condition for award of a Gold Medal. The
appellant/University also contended that the respondent no.1 had
admittedly not cleared two subject papers of his Sixth Semester
Examinations in the first attempt, namely, Code of Civil Procedure-2
& Code of Criminal Procedure-2, when they were first offered in the
year 2013 and had passed the same only after being permitted to re-
appear in the said examinations in the following year. Therefore, the
appellant/University could not be faulted for not conferring the Gold
Medal upon the respondent no.1 and instead, awarding the same to the
respondent no.3 who had appeared for and secured the highest marks
in every subject on the first available attempt.
7. In support of his pleas, counsel for the respondent no.1 had
relied on Sovila Mathur v. Maharshi Dayanand Saraswati
University [MANU/RH/1631/2015], Shashi Kant Mall v. Vice
Chancellor & Ors. [AIR 1982 All. 56], Abhijit v. Dean, Government
Medical College, Aurangabad & Anr. [1987 SC 1362], and Rubinder
Brar v. Punjab University, Chandigarh & Anr. passed by the Punjab
LPA No.248/2018 Page 4 of 23
& Haryana High Court in Civil Writ Petition No.3269/1993. On the
other hand, counsel for the appellant/University had cited the
decisions in Dr. Rajkumar Shantilal Gandhi v. State of Maharashtra
& Ors. [1988 Mh.L.J. 1022] and Mrs. Swathi B. v. Karnataka State
Law University, Hubli & Ors. [ILR 2015 KAR 491].
8. After considering the rival submissions of the parties, the
learned Single Judge has allowed the writ petition filed by the
respondent no.1 by placing reliance on the decisions of the Supreme
Court in Abhijit (supra), of the Rajasthan High Court in Sovila
Mathur (supra), and the Punjab and Haryana High Court in Rubinder
Brar (supra) by holding that the term "first attempt" has to be
considered in the light of the facts of each case and where a candidate
fails to appear in an examination because of an illness, his non-
appearance in the said examination would not be a ground to impose a
penalty on him or to hold that he had failed to pass the paper on his
first attempt. It may, however, be noted that the learned Single Judge
while directing award of a Gold Medal to the respondent no.1, further
observed that she would not like to disturb the status of the respondent
no.3. Thus, the direction to the appellant/University was to award a
second Gold Medal to the respondent no.1. Aggrieved by the decision
of the learned Single Judge, the present appeal has been preferred by
the Appellant/University.
9. Ms. Ekta Sikri, learned counsel for the appellant/University
besides reiterating the submissions made before the learned Single
Judge, contends that the Court has failed to appreciate the real
meaning of the term "first attempt", which has led to a situation where
a candidate who has to be treated as a student re-appearing in his
LPA No.248/2018 Page 5 of 23
examinations, has been directed to be granted a Gold Medal. She
draws our attention to Ordinance 5 and Ordinance 11 of the
appellant/University and submits that the said Ordinances do not treat
appearance in a supplementary examination as a first attempt even if
the student could not appear in the regular examination due to medical
reasons.
10. Ms. Sikri further contends that in the context of an academic
course, the term "first attempt" viz-a-viz examinations, has a special
meaning and necessarily connotes the very first time a student is
entitled/obligated to appear for an examination. Accordingly, where
two students are expected to complete an academic course by taking a
set examinations as per a fixed academic schedule, only the student
who appears for the said examinations by strictly adhering to the
schedule can be said to have cleared the same in the first attempt,
whereas the student who appears at a subsequent time, cannot be
treated as having passed the examinations in the first attempt. She
further submits that two such students cannot be treated as similarly
placed as the latter student gets the advantage of more time to prepare
for the same examination than the former student. In support of
herarguments, learned counsel has relied upon the decisions of the
Bombay High Court in Dr. Rajkumar Shantilal Gandhi (supra) and
Harsha d/o Bhikaji Gadekar v. The State of Maharashtra & Anr.
[2016 SCC OnLine Bom 9451] as also a decision of the Karnataka
High Court in Mrs. Swati B. (supra).
11. Per contra, Dr. Amit George who appears for the respondent
no.1, supports the impugned judgment and contends that the decision
of the appellant/University to deny the Gold Medal to the respondent
LPA No.248/2018 Page 6 of 23
no.1 was arbitrary, irrational and has been rightly quashed by the
learned Single Judge. He argues that the decision of the
appellant/University rests on a wholly misconceived reading of the
term "first attempt" as the University has chosen to interpret it as
including a situation where a student was compelled not to appear in
an examination due to serious illness. He has also drawn our attention
to a medical certificate and an application submitted by the respondent
no.1 to the Director of the respondent no.2/College, wherein after
being declared fit, he had sought permission to appear in the
remaining three subject papers of his Sixth Semester Examinations.
12. Mr. George further submits that it is undisputed that the
respondent no.1 had suffered from Chickenpox and in those
circumstances, once the doctor had advised him to remain isolated and
avoid physical contact with others due to the high risk of infection
involved, the interpretation sought to be placed by the
appellant/University on the term "first attempt", would lead to gross
injustice to meritorious students like the respondent no. 1 who had
completed the five-year course within the prescribed time span. In
fact, he submits, it was far more onerous for the respondent no.1 to
have taken two pending examinations of the Sixth Semester along
with the ongoing examinations of the Eighth Semester and, therefore,
he cannot be denied the fruits of his hard work and outstanding
performance. In this regard, learned counsel had relied upon the
judgment of the Allahabad High Court in Shashi Kant Mall (supra);
Delhi High Court in Ms. Nandita Narain v. University of Delhi &
Ors. [AIR 1983 Delhi 170]; the Andhra Pradesh High Court in Kum.
M. Anuradha v. Sri Venkateshwara University, Tirupati [AIR 1990
LPA No.248/2018 Page 7 of 23
Andhra Pradesh 122]; the Punjab & Haryana High Court in
Rubinder Brar (supra) and Rajasthan High Court in Sovila Mathur
(supra)
13. Having noted the facts and the submissions of the learned
counsel for the parties, we may first notice the undisputed facts. The
parties are ad idem on the aspect that the respondent no.1 did not
appear in two out of a total of five subject papers in the Sixth
Semester Examinations and had, therefore, taken the aforesaid
examinations in the subsequent year, alongwith his Eighth Semester
Examinations. It is also undisputed that the respondent no.1 was
suffering from Chicken Pox, a highly contagious disease and the
moment he was given a fitness certificate, he had appeared for the
remaining three examinations of the Sixth Semester. Further, there is
no dispute qua the fact that the respondent no.1 had obtained the
highest CPI in the entire batch which had completed the B.A. LLB.
(Hons.) course in the year 2015.
14. Thus, we find that the only controversy between the parties is
as to whether in view of the admitted position that the respondent no.1
had appeared for the first time in the aforesaid two subject
examinations in the year 2014, even though he was eligible to appear
in the said examinations in the year 2013, it can still be said that he
had cleared all his papers on the first attempt, thus making him
eligible for the award of a Gold Medal. The appellant/University
would urge that the very fact that the respondent no.1 had appeared in
the aforesaid subject papers not alongwith his batchmates, but in the
examinations held in the next year, would itself show that he had not
cleared the said examinations in the first attempt. On the contrary, the
LPA No.248/2018 Page 8 of 23
respondent no.1 has endeavored to urge that he having been prevented
due to medical circumstances beyond his control to appear in the said
two papers in his Eighth Semester instead of the Sixth Semester,
cannot be treated as not having cleared the said papers in his first
attempt.
15. Before we deal with this issue, it may also be relevant to notice
that during the pendency of the writ petition, the appellant had
modified its Ordinance 5 dealing with the institution of medals, prizes
and awards to outstanding students, by specifically stipulating therein
that a certificate of merit or certificate of exemplary performance
would be granted only to those students who have passed each
paper/subject when the paper is offered for the first time during the
regular examinations of the batch in which the student was admitted.
16. To consider the rival contentions of the parties as to the
meaning and scope of the term „first attempt‟, it would be appropriate
to first refer to the Ordinances as were applicable to the respondent
no.1 when he had graduated. For the sake of ready reference, the
relevant provisions of Ordinance 11 and the unamended Ordinance 5
of the appellant/University, are reproduced hereinbelow:-
Ordinance 5: Institution of medals, prizes and awards
to outstanding students
(1) ...
(2) ...
(3) For programmes of study with credit based evaluation,
the student obtaining highest CPI (Cumulative Performance
Index) at the end of the study in a given programme
group/programmes of study shall be eligible for the award of
the gold medal and/or exemplary performance certificate, if
the student has passed every paper/course in the first attempt.
LPA No.248/2018 Page 9 of 23
Ordinance 11: Conduct and Evaluation of Examinations
for Programmes leading to all Bachelor's/Master's Degrees
and Under Graduate/Post Graduate Diploma following the
semester system of examination
11.3 (i) A student obtaining less than the passing marks
assigned to a course and failing in the course, shall be
allowed to re-appear in semester term end examination of the
course in a subsequent years when the course is offered,
subject to maximum permissible period as mentioned in
clause 4.3.
17. On a perusal of the unmodified provisions of Ordinance 5,
which were in force at the time the respondent no. 1 had graduated in
the year 2015, we find that the term „first attempt‟ has not been
clarified by the appellant/University and for this reason, both the
parties have relied on the decisions of the various High Courts in
support of what they contend would be the true and correct meaning
and import of the term „first attempt‟. We may first refer to the
decisions relied upon by the learned counsel for the
appellant/University. In Mrs. Swathi B. (supra), while interpreting
Clause 18 of Section 48(1)(b) of the Karnataka State Law University
Act, 2009, the Karnataka High Court held as follows:-
14. Though the petitioner and the respondents No. 3, 4 and 6
herein have answered the very same question papers from the
second semester in June, 2011 onwards, the vital difference
which is required to be noticed is that despite the petitioner
having secured more marks in the aggregate, the difference in
the question paper which has been answered by the petitioner
and the private respondents No. 3, 4 and 6 herein insofar as
the first semester would make all the difference to come to a
conclusion as to whether, merely because the petitioner has
appeared for the first semester examination during June,
2011 it can be claimed as the "first attempt". Due to the said
difference in question paper they cannot be put on the same
pedestal for comparison. I am of the said opinion, for the
reason that under the other Clauses of the Ordinance, the
LPA No.248/2018 Page 10 of 23
marks obtained would be taken into consideration only for the
purpose of assessing the standard of a student to come to a
conclusion whether such student has passed or secured the
first or the second class but it is not for comparative
assessment with a fellow student. But, when it is considered in
the background of assigning a rank or the award of Gold
Medals, the inter-se merit of the students would be more
relevant with regard to the marks that has been obtained by
them. Such inter-se merit amongst them can be determined
only if in all aspects they are similarly placed and the same
bench mark has been adopted inter-se amongst them to come
to a conclusion as to who is more meritorious. That is
possible only if the same set of questions are answered by the
students in all the semesters of the course. One can be
declared as a winner only if he/she is compared with the same
set of competitors in all the laps of a single race.
15. In the instant case, as noticed, the respondents No. 3, 4
and 6 and all the other students who had appeared for the
first semester had answered a particular question paper
which had been set for the examination conducted during
January, 2011. As compared to her other batchmates, the
petitioner had answered a different set of questions while
attempting her first semester examination during June 2011.
16. Therefore, in such circumstance, when the petitioner has
attempted a different examination at least for one semester as
against all the other students who had appeared for the first
semester examination during January, 2011, the inter-
se merit cannot be assessed though the subsequent three
semesters were commonly attempted by the petitioner as well
as the respondents No. 3, 4 and 6 and all other students of the
same batch of a particular academic session. It is in that
context the "first attempt" becomes relevant.
17. [T]he word "first attempt" should be understood in the
sense as the scheduled attempt of the course provided by the
University to the student and not the one opted or chosen by
the student to appear for the examination as his or her first
attempt. The said understanding is for the reason that only if
such purport is given to the said words a uniform procedure
could be adopted as otherwise the students would have the
choice of writing the examinations as and when they deem to
do so by not having undergone the uniform test by answering
the very same set of questions which the regular student
LPA No.248/2018 Page 11 of 23
would have attempted in the examinations as scheduled by the
University.
18. Therefore, if these aspects are kept in view, though the
petitioner has written the theory examination for the first time
in June, 2011, the said examination cannot be considered as
a "first attempt" provided by the University to the student to
appear for the examination. Therefore, the marks as obtained
by the petitioner even if it is more than the marks obtained by
third respondent in the aggregate, the same would not answer
the requirement of Clause-18 in the Ordinance."
18. By placing reliance on the aforesaid observations of the
Karnataka High Court, Ms. Sikri, learned counsel for the
appellant/University contends that term „first attempt‟ has to
necessarily mean the stage when a student was entitled to appear in
the examination for the first time, which in the facts of the present
case, has necessarily to be taken as May, 2013 when the respondent
no.1 was admittedly eligible to appear for the aforementioned two
subject papers but could not do so for medical reasons.
19. Learned counsel for the appellant/University has further placed
reliance on the decision in Dr. Rajkumar Shantilal Gandhi (supra),
wherein the Bombay High Court had the occasion to interpret the term
"attempt" as occurring in the "Rules for the selection of candidates
for admission to post-graduate courses" framed by the Government of
Maharashtra vide its resolution dated 18.06.1971. The relevant
paragraphs of the decision in the caption case read as under:-
"7. We will first examine whether the fact, that the petitioner
refrained from appearing at the examination when in the
normal course he was due to appear, constitutes an
"attempt" for the purposes of the Rules. When one speaks of
an attempt to do a certain thing, there is implied in it a
contrast with the attainment of its object. An attempt thus
means an effort, an endeavour which turns out to be futile. In
a nutshell, it is an unsuccessful endeavour. In the context of
LPA No.248/2018 Page 12 of 23
admissions to academic courses where academic
performance is relevant, "attempt" has a special meaning.
The rules framed by the Government of Maharashtra display
one dominant purpose. It is to ensure that the marks obtained
in the subject at the university examination determine the
admission to the course. 5% of the marks are deducted in
case a candidate has passed the examination in that subject
at the degree course at the second attempt. The rule of
deduction of marks is based on sound reason. Consider case
where two students who are expected to complete a course
within one year. One of them appears for examination at the
time when in the normal course he is "due" to appear and
secure X marks. The other student chooses not to appear
when "due" and appears one year later securing (X+10)
marks. This situation means that the student who secured 10
marks more than the student who appeared one year earlier
took two years to secure 10 more marks. Where, as in this
case, academic performance is the basis on which admissions
are granted, not only the marks obtained at the examination
at which the student appears but also the time taken by him to
appear for that examination, the marks of the previous
examinations and so on, are relevant. This is relevant for
understanding the meaning of the word "attempt" in the
context of admission to educational institutions.
8. It is the argument of Mr. Pradhan on behalf of Dr. Gandhi
that unless Dr. Gandhi actually appears for the examination,
he cannot be said to have "attempted" that examination. In
civil cases an "attempt" means an intent combined with an
act falling short of execution of the thing intended. It is an
endeavour to do an act, carried beyond mere preparation, but
short of execution. Black's Law Dictionary, Fifth Edition.
9. Dr. Gandhi had prepared himself to appear for the
examination, submitted the requisite form and was possessed
of seat number and the hall ticket. In Dr. Shashikant
Langade v. Dean, Medical College, Miraj, Writ petition No.
3162 of 1985, a division bench of this Court, in identical
circumstances held that the application for appearing for the
examination, payment of fees and inclusion of the name in the
list of examinees, are steps taken by the examinee which
travel beyond mere preparation and constitute "attempt". We
are in agreement with this view. The view propounded by Mr.
LPA No.248/2018 Page 13 of 23
Pradhan, Learned Counsel for Dr. Gandhi is opposed to the
principle on which the rule of deduction is founded.
10. In our opinion, Dr. Gandhi did not appear for the
examination when he was in normal course due to appear.
His endeavour to pass the M.B.B.S. examination did not stop
at the stage of preparation. He submitted the requisite form,
paid the fees and was listed as an examinee. This conduct
which was much more than mere preparation was an
"attempt" at the M.B.B.S. examination. Therefore, the
deduction of 5% of marks for determining the corrected
marks was valid.
***
14. In the view which we have taken of the meaning of the
word "attempt", we see no merit in the case of Dr. Gandhi.
Dr. Prani has not pressed the petition and was content with a
recommendation from us that Dr. Gandhi and Dr. Prani both
be admitted to the Post-Graduate course. Dr. Gandhi secured
266 marks out of 400 but lost 20 marks because he passed at
the second attempt. Dr. Prani passed at the first attempt to
secure only 246 marks out of 400 marks. The result of the
deduction of 20 marks from the marks obtained by Dr.
Gandhi is that his corrected marks are equal to those secured
by Dr. Prani. Since we have upheld the validity of the
decision of the respondents to deduct 20 marks from the
marks obtained by Dr. Gandhi, he should rank at the same
place in the list alongwith Dr. Prani. Having regard to the
heart ailment from which Dr. Gandhi suffers and the fact that
Dr. Prani has the same number of corrected marks as those
of Dr. Gandhi, we recommend to the respondents that they
should admit both the candidates to the post-graduate course
in surgery and condone the deficit in the first term. We have
no doubt that the respondents will consider our
recommendation in the right spirit and adopt a sympathetic
attitude in the matter. Subject to what we have stated above,
both the petitions are dismissed. Rules are discharged.
However, there will be no order as to costs.
20. Learned counsel for the appellant/University has also placed
reliance on another decision of the Bombay High Court in Harsha d/o
Bhikaji Gadekar (supra), wherein the Court while relying on its
earlier decision in Dr. Rajkumar Shantilal Gandhi (supra), held as
under:-
15. We do not see as to how a different view can be taken. In
any event, a view similar to Rajkumar Gandhi (supra) has
been taken by this court consistently. For a complete
reference, we point out the judgments in the case of Lata
Prabhuappa Warad vs. State of Maharashtra and Ors. 2 ,
Bharat Sharad Kulkarni vs. State of Maharashtra and Ors. 3
and Ansari vs. M. G. V. S. P. H. College of Pharmacy 4 .
Once the petitioner had a complete opportunity to appear
for the examination in December, 2008, then, refraining
from appearance at that examination on account of some
other reason, which may be genuine and bonafide, would
mean that the examinations leading to the degree in law
have not been cleared in the first attempt. The petitioner was
aware it is a five year law course. At the end of the fifth year,
the degree would be awarded. The requirement in the Rule
is all the examinations leading to the degree have to be
cleared in first attempt. Once the petitioner did not clear
them in the first attempt, but cleared one of the exams later
in point, then, the interpretation placed by the authorities
and the respondents in this case that the petitioner has not
fulfilled the requirement of the Rules cannot be said to be
arbitrary or perverse. The Rule as it stands is plain,
unambiguous and clear. There is no scope for any
interpretation. In any event, the authoritative
pronouncement of the Division Bench and with which we
respectfully agree supports the view of the respondents in
this case.
21. To contend that the term „first attempt‟ is very specific and
would only include the first available attempt, Ms. Sikri submits that
unfortunate cases like the present one, where the respondent no.1 was
unable to appear due to medical problems or deliberate cases where
students choose not to appear in the first available opportunity but
rather in subsequent academic sessions, cannot be included in the term
„first attempt‟.
22. Now, we may refer to some of the decisions relied upon by the
learned counsel for the respondent no.1. In the case of Abhijit (supra),
the appellant herein had not been able to take his third-year M.B.B.S.
examinations on account of falling severely ill. When he recovered, he
took his third-year M.B.B.S. examinations at the first opportunity
available to him and passed the same by securing the first rank.
However, when the appellant sought admission to the M.S. degree
course, he was penalized by deducting five percent from the marks
obtained by him on the ground that the he had passed the concerned
subjects in his second attempt. As a consequence of the penalty
imposed on him, the appellant therein was not granted admission to
the M.S. degree course. In these circumstances, the Supreme Court
while directing the respondents to grant admission to the appellant in
the M.S. degree course, held as follows:-
"3. On behalf of the respondent, it was submitted that though
the rules relating to admission to the post graduate course
did not define what a second attempt was the rules for
appointment of Residents under the III year Residency
programme at Government Medical Colleges defined what
was a second attempt and since those admitted to the MS
degree course were necessarily to be appointed to
Residencies the rules applicable to Residencies were made
applicable to those seeking admission to the MS degree
course. In the first place, we do not see how the rules relating
to appointment to Residencies could be made to regulate
admission to the MS degree course. In the second place, we
do not think that even the rule on which the respondents rely
justifies the deduction of 5 per cent marks. A note under Rule
IV.5(e) of the Rules relating to appointment to Residencies is
to the following effect:
"For the purpose of the reductions, non-appearance at any
examination when due, is deemed as an attempt at the said
examination."
We may at once say that the appellant was not "due" to
appear at the examination as he had not put in the necessary
attendance of the classes and clinics and had not even
submitted his application form for the examination. We are
also of the view that if the rule has the effect of treating
failure to appear at the examination because of serious illness
as non-appearance at the examination so as to make the
candidate liable to a deduction of 5 per cent of marks when
seeking admission to a postgraduate course the rule is indeed
arbitrary."
23. Placing reliance on the aforesaid observations of the Supreme
Court, a learned Single Judge of the Andhra Pradesh High Court in
Kum. M. Anuradha (supra), held as follows:-
"1. The petitioner studied in Adoni Arts and Science College,
Adoni during the academic years 1984-87. The first year
examinations of the B.Sc., were scheduled to be held in June,
1985. The petitioner was seriously ill during that period.
Therefore, she did not attend the examination due to illness.
She however appeared in the supplemental examinations held
in September, 1985 and passed in one attempt. She also
passed second year examination in one attempt; so also the
third year examination. She secured 58% of marks in
Chemistry, 72.8% in Botany and 67.4% in Zoology in the
aggregate of all the three examinations. She applied for
admission in M.Sc., Botany. The list of selected candidates
was announced on December 17, 1987 but her name was not
included while a candidate who secured 63% in Botany was
selected. She was later informed that as she passed the first
year examination in September, 1985 instead of June, 1985.
She was treated as having passed in second attempt and was
not selected, pursuant to R. 2 of the General Conditions for
Admission to Different Courses of Study. The petitioner
therefore challenges the validity of the Rule as being
arbitrary and unjust and unreasonable and violative of Art.
14 of the Constitution of India and prays that the said Rule be
struck down.
5. Rule 2 of the General Conditions for admission to different
courses of study which is challenged in this writ petition
reads thus:--
"2. Admission will be on the basis of merit subject to
reservation. Order of merit is decided taking into
account the marks obtained as well as the attempts
made. Any candidate who has not taken the
examination at the appropriate time for any reason
will be considered as having attempts."
6. The rule provides that the admission will be on the basis of
merit subject to reservation, and that the order of merit is
decided taking into account the marks obtained as well as the
attempts made. The Rule further says that any candidate who
has not taken the examination at the appropriate time for any
reason will be considered as having attempts. In so far as the
first limb of the Rule is concerned, no valid challenge can be
made. The challenge might only be against the second limb of
the Rule noted above. There may be cases where a candidate,
due to sudden illness, may not be in a position to attend the
examination. There may as well be a case where due to
accident, or due to any other unforeseen circumstances
beyond his control a student is prevented from taking the
examination. The Rule does not take into consideration these
aspects. If really the candidate takes the examination and
does not pass the same, there will be justification in counting
it as attempt against him. But where the candidate does not
take the examination at all for reasons beyond his control, to
count it as attempt against him would be oppressive and
unreasonable. I am supported in my view by a judgment of
the Supreme Court in Abhijit v. Dean, Government Medical
College, Aurangabad, AIR 1987 SC 1362...
7. From the above discussion it follows that in so far as the
second limb of R. 2 is concerned, it has to be held as
unreasonable and arbitrary as it does not take into
consideration the circumstances which might prevent the
candidate from appearing for the examination while counting
it as an attempt. The offending portion of R. 2 is separable
from the rest of the Rule. Therefore, the second limb of R. 2 of
the General Conditions for admission namely, "Any
candidate who has not taken the examination at the
appropriate time for any reason will be considered as having
attempted", is struck down."
24. Dr. George, learned counsel for the respondent no.1 has also
placed reliance on the decision of the Punjab and Haryana High Court
in Rubinder Brar (supra), the relevant paragraphs of which are
reproduced hereinbelow:-
"A reading of Clause 14 of the Regulations for
Bachelor of Engineering Examinations (hereinafter referred
to as 'the Regulations') as prevailing in the University at the
relevant time, would indicate that "first attempt" has been
defined to mean as the first time a candidate has actually sat
for the subject in the University examination. According to
the petitioner, in one of the papers, he did not appear on
account of his ill health and, therefore, the occasion on which
he took the paper would be the first attempt in the said paper
which, therefore, entitles him to the honour in question. The
University, however, has taken a contrary stand in the matter
to deny the honour due to him.
Having read and considered Clause 14 of the
Regulations and the explanation/clarification of the
expression "first attempt" contained therein, we are of the
view that if the petitioner did not at all sit in the paper on
account of ill health, the occasion when he actually sat in the
paper, must be understood to be his first attempt."
25. In the light of the aforesaid decisions, we find that the term
„first attempt‟ unless defined specifically in the
Regulations/Ordinance, has to necessarily take colour from the
context in which it is used. Even though the Karnataka High Court
and the Bombay High Court have interpreted the term to include a
situation where a candidate could have appeared but did not appear in
an examination due to medical problems, we find that the Apex Court
as also the Andhra Pradesh High Court, Rajasthan High Court and this
Court itself have taken a different view that situations like in the
instant case, where a student due to medical reasons could not appear
in an examination on the first available opportunity, cannot be used to
his detriment or in any manner to penalize him. We are unable to
persuade ourselves to follow the view adopted by the Bombay High
Court in Dr. Rajkumar Shantilal Gandhi (supra), and Harsha d/o
Bhikaji Gadekar (supra) as also the Karnataka High Court in Mrs.
Swasthi B. (supra).
26. We are of the considered opinion that the term "first attempt" as
occurring in the unmodified provisions of Ordinance 5 of the
appellant/University cannot take in its sweep, situations where a
student could not, as a consequence of severe medical issues, give an
examination when it was first due. Thus, in the facts of the instant
case, we have no hesitation in arriving at the conclusion that the
respondent no.1 having been prevented due unavoidable medical
concerns from appearing in the aforesaid subject papers in the first
instance, during the Sixth End Semester Examinations, he ought not to
be penalized or deprived of the fruits of his labour and well-deserved
merit.
27. Another important factor that needs to be emphasized is that the
unmodified provisions of Ordinance 5, which were applicable to the
respondent no. 1 as they were in force when he had graduated, do not
in any way support the interpretation sought to be placed by the
appellant/University on the term „first attempt‟. There is nothing in
the unamended provisions of Ordinance 5 that can be read to mean
that a student, who could not appear in an examination on account of
medical concerns, has to be treated as a student re-appearing in an
examination. In fact, Clause 11.3(i) of Ordinance 11 of the
appellant/University clearly stipulates that only a student obtaining
less than the passing marks assigned to a course, shall be allowed to
reappear in a semester end term examination. Thus, it is apparent that
only a student who has failed in an examination is allowed to reappear
in the same, and clear it in his second attempt. Such a case is clearly
distinguishable from the instant case where the respondent no. 1
cannot for obvious reasons be treated as a candidate who had failed in
an examination in his first attempt and had to reappear in the same in
terms of Clause 11.3(i) of Ordinance 11.
28. Therefore, we are unable to appreciate as to why the
appellant/University while compiling the final results for the B.A.
LLB. (Hons.) course of the 2010-2015 batch had ignored the case of
the respondent no.1 and overlooked the fact that Ordinance 5 as
existing on the date of the examinations, in no manner debarred him
from being eligible for grant of a Gold Medal. The very fact that
Ordinance 5 was amended by the appellant/University w.e.f.
09.12.2016, itself shows that the said Ordinance as applicable to the
respondent no.1, did not exclude him from being eligible for award of
a Gold Medal.
29. We need to deal with the plea in para 10 above of the student
taking exams. Later, having an advantage of more time for
preparation.
30. We have also considered the contention of the learned counsel
for the appellant that the respondent no. 1 was allowed to appear in the
remainder of his Sixth Semester Examinations after almost one year
and, therefore, got an unfair advantage of more time to prepare for the
same examinations than those students who had taken the said
examinations on their scheduled date. In our opinion, the aforesaid
contention is wholly unmerited as it overlooks the fact that in the
present case, instead of getting any undue benefit, the respondent no. 1
was compelled to prepare for and take the remainder of his Sixth End
Semester Examinations alongwith his Eighth End Semester
Examinations. In other words, the respondent no. 1 while appearing
for his Eighth Semester Examinations, had to prepare for and take
more examinations in the same duration that his fellow students had to
prepare for a lesser number of examinations. Evidently, the burden
cast on the respondent no. 1 was, if not measurable, more than that
falling on the shoulders of his peers who were appearing in their
Eighth Semester Examinations. Therefore, the aforesaid contention of
the learned counsel for the appellant is also rejected.
31. Before concluding, we may also briefly deal with the
appellant's apprehension that the impugned judgment, if allowed to
stand, will open floodgates for similar claims by other students who
may have missed some examination for any reasons, not limited to
medical grounds. In the light of the admitted position that the
appellant/university has already taken steps to modify its Ordinance 5
to clarify that a certificate of merit or certificate of exemplary
performance would be granted only to those students who have passed
each paper/subject when the paper is offered for the first time during
the regular examinations of the batch in which the student was
admitted, we are of the view that the aforesaid apprehension of the
University is completely unfounded.
32. For the aforementioned reasons, we find no infirmity in the
impugned order. Therefore, the present appeal is dismissed as
meritless along with pending applications, with no order as to costs.
(REKHA PALLI)
JUDGE
(HIMA KOHLI)
JUDGE
OCTOB ER 16, 2018/aa/sr
