Panjab University And Ors vs Ishita Uppal
2023 Latest Caselaw 1860 P&H

LPA-336-2021 (O & M)                                                    1


           IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

                                                         LPA-336-2021 (O & M)
                                                      Reserved on: 23.01.2023
                                                   Date of Decision: 30.01.2023

Panjab University and others                                    .....Appellant(s)

                                          Versus

Ishita Uppal                                                   ....Respondent(s)

CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
       HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN

Present:       Mr. Subhash Ahuja, Advocate,
               for the appellants.

               Respondent-in-person.

G.S.SANDHAWALIA, J.

Consideration in the present letters patent appeal filed by the

Panjab University is against the judgment of the learned Single Judge dated

23.02.2021 passed in CWP No. 20275 of 2019 filed by the respondent herein

namely Ishita Uppal which has been allowed by imposing Rs.1,00,000/- as

compensation to be paid by the University and University Institute of Legal

Studies (hereinafter referred to as 'UILS') in equal shares. Liberty has been

given to recover the same from the erring officials. Resultantly, directions

were issued to restore and release the entire benefit of freeship/EWS

scholarship to the writ petitioner while quashing communications dated

26.06.2019, 10.07.2019, 19.07.2019 (Annexures P-4, P-5 and P-8,

respectively).

2. The following questions were culled out for adjudication on

merits of the controversy by the learned Single Judge:-

"A) Whether in view of Clause (vi) of guideline

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No.9 (P-9), the action of the respondents to withdraw the benefit of freeship/ EWS scholarship while considering the case of the petitioner as a compartment / re-appear candidate for 6 th Semester, is legally sustainable?

B) Whether the action of the respondents while not treating the petitioner on the rolls of the Department and consequently terminating her internship programme is based on legal malice and liable to set aside?

C) Whether the action of the respondents while rejecting the claim of the petitioner for freeship/ EWS scholarship is violative of principles of natural justice?

D) Whether the action of the respondents has caused great prejudice to the petitioner resulting into miscarriage of justice?"

Finding of the Learned Single Judge:

3. The learned Single Judge came to the conclusion that the

absence of the respondent in the French-III paper of the 6th semester on

14.05.2018 was on account of her medical condition as such and the relevant

medical certificate had been duly handed over to the clerk of the institute. It

was accordingly held that non-forwarding of the medical certificate of the

concerned quarter had made the respondent run around from pillar to post for

complete one year. It was noticed that there was an admission as such by the

University that the father had also submitted an application on 12.06.2018

that his daughter could not take the examination on account of health

problems and the same had also been forwarded to the Controller of

Education on 13.06.2018 and that the dealing official of the Examination

Branch had telephonically informed her on 25.06.2018 that her case had been

cleared by the Doctor of the Health Centre regarding re-conducting of the

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said paper on medical grounds. It was held that there was specific admission

that no individual intimation had been sent to the candidates appearing in the

examinations in pursuance of the date sheet dated 06.07.2018 and that for a

period of one year, no intimation was sent to the petitioner for the request of

the French-III paper, whether it has been accepted or rejected by the Vice

Chancellor of the Institute. Finding was recorded that it is only after a period

of one year the communication had been sent to the petitioner that she had

remained absent for the said paper and, therefore, her case was to be treated

as compartment/reappear while taking shelter under Clause (vi) of Guideline

9. Reliance was accordingly placed upon Clause 7.1 of Chapter VIII Volume

II, Panjab University Calendar, 2007 that there was a provision for a

candidate to complete the annual examination on account of serious illness or

accident or on account of death of near relative on one of the days in the same

year by the Vice Chancellor provided he was satisfied by the evidence

produced and that the concession applied for was justified. It was

accordingly held that she had been treated as a compartment/reappear

candidate but no order had been passed by the Vice Chancellor and supplied

to her till date. Therefore, the University was depriving her for claiming the

benefit of freeship under the garb of the said guidelines. Resultantly, finding

was arrived at that because the candidate had not appeared in the paper, she

could not be treated as a re-appear candidate and treating her as a

compartmental candidate was not justified as she had not failed in the

previous examination. The justification of the University that she had been

informed of the special chance was held not acceptable on the ground that at

the time of the issuing of the date sheet on 06.07.2018, University was closed

for summer vacations and the candidate was not expected to have knowledge 3 of 23

about the second chance being granted. No individual intimation having been

sent and the plea that she had been informed by the dealing officials of the

Examination Branch on telephone was not accepted in the absence of any

such mode having been prescribed by the competent authority. Resultantly,

finding was further recorded that the absence on 17.05.2019 also was on

account of the fact that she had been orally informed that her scholarship had

been discontinued on account of the non-submission of the detailed marks

card of the 6th semester and, therefore, till her case was decided by the Vice

Chancellor, she was apprehensive to lose the benefit of freeship and could not

be interpreted in the manner while treating her case to be a case of reappear.

4. A finding of legal malice was recorded that the candidate

belongs to a Economically Backward Class category and her father had given

an application on 24.06.2019 and keeping in view her track record, her case

had also been forwarded on 06.06.2019 but had been rejected by taking

erroneous approach and her name was wrongly removed from the rolls of the

department resulting in termination of her internship programme without

affording any opportunity of hearing which had hampered her career.

5. Under Point 'C', the finding was recorded that action was

violative of principles of natural justice and withdrawing of the benefit of the

scholarship without affording any opportunity of hearing and removing the

name from the rolls of the department and the internship programme was

done by simply sending intimations whereby the impugned orders had been

passed. There were no discernible reasons for rejection of the claim of the

petitioner by the Vice Chancellor/Board of Control of the Institute and,

therefore, by filing an affidavit of the Director of the Institute would not be a

substitute for the orders of the competent authorities. An opportunity as such 4 of 23

should have been given to her to prove her case before passing the rejection

order and, therefore, it was held under point 'D' that great prejudice had been

caused to her and it was noticed that in terms of the interim order dated

24.07.2019, she had been allowed to appear in the papers and her result was

ordered to be kept in sealed cover and she had successfully completed her

B.A. LL.B. course by securing a good first division and, thus, she had been

harassed for 2-1/2 years which led to the directions for imposition of

compensation.

Background of the case and interim orders passed:

6. A perusal of the paper book would go on to show that the claim

as such as per the writ petition filed was for grant of the EWS scholarship, to

quash the arbitrary orders of the respondent, to grant stay against the

termination of the internship programme and to set aside the arbitrary orders

of the Director of the Institute denying her the right of scholarship. Further

prayer was made that rules in the hand book of information be amended for

the candidates availing scholarships in case of missing an exam on account of

medical illness and order such rules to be made to help the student and not

hamper their chance of scholarship apart from various other remedial

measures which were to be taken including asking a sitting Judge from this

Court to be the Administrative and Regulatory Head of the Student Grievance

Cell. The writ petition was filed in person by the respondent herein, who is

now also working as a Law Researcher in this Court and attached to one of

the Hon'ble Judges.

7. At that point of time, vide interim order dated 24.07.2019, she

was allowed to continue with her internship which was subject to the outcome

of the writ petition. Vide order dated 01.08.2019 thereafter, she was 5 of 23

permitted to furnish the bank drafts for the fees for the 9th semester and

directions were issued to the Director of the Institute to get the application

processed as per rules on receipt of the application form and bankers cheque

from the writ petitioner. Vide order dated 30.08.2019, she was also allowed

to join classes, however, her result was not to be declared and was to be

subject to outcome of the writ petition. A similar order was also passed on

24.09.2019 that the admission form be accepted subject to the outcome of the

writ petition. Resultantly, the writ petition was allowed on 23.02.2021 after

arguments which had concluded on 16.02.2021 by way of video

conferencing.

Arguments raised by counsel for the University:

8. Mr. Ahuja, counsel for the University has vehemently assailed

the judgment of the learned Single Judge by pointing out that the admission

was in the 5 year B.A. LL.B. course for the academic session 2015-20. It is

his case that the concession contained in brochure/prospectus would carry the

force of law. Once the guidelines as such provided that the freeship was to be

continued in the years in which the student passes the previous examination

with the requisite 55% for the other departments than Science and that also in

the first examination and should not have a reappear which was a condition

precedent to claim freeship. It is accordingly contended that the absence was

admittedly there on 14.05.2018 and an application had been submitted by her

father on 12.06.2018 (Annexure R-1) wherein, the medical certificate had

been submitted alongwith the medical record from the said doctor which had

been duly forwarded on 13.06.2008 for necessary action to the Controller of

Examinations. The case of counsel for University was that medical cases as

per clause 7.1 of Chapter VIII Volume II, Panjab University Calendar and on 6 of 23

account of other exigencies were to be given an opportunity of passing the

examination in the same year. Accordingly reliance was placed upon 5

candidates of the 4th and 6th semester of UILS who had been examined and

approved by Dr. Deepak Kumar of BGJ Health Centre, Panjab University and

who were to be given benefit of appearance in the missed paper on medical

grounds, one of which was the writ petitioner (respondent herein). Necessary

orders were accordingly passed on 25.06.2018 and reliance was placed upon

the date sheet issued on 06.07.2018 whereby notification has been made by

the Panjab University that the French-III examination was to be held on

14.07.2018, for which, it is the case of the university that intimation was

given while placing reliance upon the endorsement on the request of the

father himself and there was a telephonic information given on 25.06.2018.

Admittedly, the writ petitioner did not appear in the said examination.

Thereafter, the examination was again held on 17.05.2019 in which the

respondent never appeared voluntarily and the explanation now given is that

it was clashing with her 8th semester examinations whereas, there is no such

averment made in the writ petition. Thereafter, there was a demand on

06.06.2019 regarding the tuition fee of the 8th semester and she was informed

that she was eligible to appear. Resultantly, communication dated 06.06.2019

(Annexure P-2) was issued wherein she was informed that she would be

eligible in April/May, 2020 to appear in the 6th semester reappear alongwith

regular examination and she should submit the tuition fee for the 8th semester

and later on when she was eligible for concession, her case would be

forwarded to the competent authority for further necessary action.

Reference was made to communication dated 24.06.2019 then received from

her father that sympathetic consideration be given on account of her bright 7 of 23

academic future and that she did not have enough money to pay the regular

fees and that the request for holding the fee till the result comes in May, 2020

be accepted. Vide letter dated 26.06.2019, the institute was informed that the

request of the father of the respondent had not been accepted for the session

2018-19 as it was not permissible under the Rules and Guidelines for refund

of the tuition fees. Resultantly, on 10.07.2019, she was informed that the

members of the Board of Control of the institute had rejected the request of

holding the fees and she was asked to submit the fees at the earliest. On non-

payment as such of the 8th and 9th semesters' fees, permission for doing her

internship vide representation dated 19.07.2019 was rejected on the ground

that she was not eligible for the concession. Resultantly, she successfully

challenged the said action, as noticed above and it was accordingly argued

that the recording of legal malice was without any justification as no

individual had been arrayed as a respondent by name and only through

designation, the Director of the Institute and the Clerk of the said institute

apart from the Vice Chancellor and the DUI had been impleaded. It is

submitted that without specific allegations of malafide and without

impleading the necessary person, a finding could not be recorded as such and

it would also amount to condemning the officials without giving them an

opportunity to put forward their case. It was further submitted that there was

no reason why any person should be personally prejudiced or biased against

the student.

9. Thus, Mr. Ahuja has submitted that there was always conscious

decisions taken at the earliest and, therefore, the finding as such recorded that

she was never given an opportunity is without any basis. The finding

recorded that a compartment would only be in a case where the candidate had 8 of 23

appeared and failed would also amount to re-writing the rules as such as

candidates had to necessarily clear the 5 year course in a maximum period 8

years and voluntarily abstainence would give them benefit as such to claim a

larger period to complete the course on the ground that they had never

appeared in the exam. It was also pointed out from the additional affidavit

that there were other persons also whose freeship/EWS had been discontinued

and it was not only in the case of the petitioner.

Arguments addressed by the respondent appearing in person:

10. The respondent appearing in person referred to the additional

affidavit filed by the University to point out that it was their own case that no

individual intimation had been given to the candidates for appearing in the

exam which was held for the purpose of the special chance on 14.07.2018.

The plea taken was that some person from the examination branch had

telephonically informed the candidates and, therefore, the learned Single

Judge was justified in coming to the conclusion that intimation had not been

given. Clause 9 itself was challenged on the ground that it was arbitrary and

reliance was placed upon various judgments namely Abhijit vs. Dean,

Government Medical College, Aurangabad and another, (1987) 3 SCC 478;

Shri Prashant Pravinbhai Kanabar and others vs. The Gujarat University

and others, AIR 1991 Gujarat 23; Pramod Namdeorao Nawarkhede vs.

Nagpur University and others, Master Mohammad Akaram Khan vs.

Jamia Senior Secondary School and others; Sandeep Shenai vsw.

Mangalore University, Mangalore and another and Kum. M. Anuradha vs.

Sri. Venkateswara University, Tirupati.

11. It was accordingly contended that her case of freeship was

always being processed and the system as such was that the fees should be 9 of 23

deposited firstly and the refund would thereafter be generated. Reliance was

placed upon the document dated 02.05.2019 and two communications dated

06.06.2019, photocopies of which have been taken on record as Mark 'X',

Mark 'Y' and Mark 'Z'. Resultantly, it was argued that non speaking orders

Annexures P-4 and P-5 had been passed and no reasons were given and

neither any reference to any Rule was made while also referring to Annexure

A-4 dated 02.08.2019. It was further argued that the 7th semester fees had not

been refunded and the writ petitioner had also deposited the balance fees in

pursuance of the interim order passed in the writ petition on 01.08.2019 for

the 9th semester vide bankers cheque dated 26.07.2019 but the same had not

been encashed.

Reasoning by us:

12. From the above sequence of events, one aspect is clear that the

writ petitioner (respondent herein) was claiming the benefit as such of

freeship/EWS which is a concession granted to the students subject to

fulfillment of certain conditions. The same provides that it is restricted to 5%

of the seats for meritorious students belonging to economically weaker

sections and it is not a matter of right as per Clause 9(ii). As per Clause 9(vi),

the continuation of the freeship granted during the first year is subject to a

rider which is to be continued in the subsequent years if the student passes the

previous examination with a minimum of 60% marks in the aggregate for

science students and 55% marks for students in departments other than

science. Students were also required to pass the examination in the first

attempt and should not have a reappear or compartment. The photocopy of

the lower examination passed, detailed marks certificates were to be enclosed

with a refund form. Similarly, under Clause 9(vii), if the students were to 10 of 23

seek the concession, they had to enclose all relevant documents so that the

cases could be decided at the time of admission. Under Clause 9(ix) if a

candidate shifted from one course to another and if provided tuition fees

concession in the previous course, would be entitled to claim the said

concession only if the same was available in the latter course. The said

guidelines read thus:-

"Guidelines for freeship and tuition fee concession.

(i) The University may provide five percent of seats freeship for meritorious students belonging to economically weaker sections of the society in all partially Self-Supporting courses/departments running in Panjab University Institutes/Regional Centres of the Panjab University.

(ii) Freeship would mean (tuition fee + Lab charges) concession only, not to be claimed by students as a matter of right.

(iii) At the first instance, the concerned Board of Contral/Coordinator shall fill all the sanctioned seats by following the normal admission procedure.

(iv) The concerned Board of Control/Coordinators shall list out the candidates who are eligible for freeship concession.

(v) For the purpose of the above concession, candidates must have passed the qualifying examination in the first class (60 per cent marks-proof to be added) and the total family income from all sources not exceed Rs. 2.5 lac per year. For proof of family income from all sources should not exceed Rs. 2.5 lac per year, the income certificate shall be accepted when issued by the competent authority which shall mean the Tehsildar, SDM or the employers as the case may be. In addition

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an affidavit duly attested by a Magistrate giving full details of total family income should be submitted. Candidates holding yellow cards/yellow ration cards would be given preference over other candidates provided other merit conditions remained the same.

(vi) For continuation of the freeship granted to students during the first year of admission to a course, the following rider be imposed:

"The freeship will be continued in the subsequent years only if the student passes the previous examination with a minimum of 60 per cent marks in the aggregate for science students and 55 percent marks for students in departments other than science. The student should have passed the examination in first attempt that is should not have a reappear/compartment. Photocopy of lower examination passed, detail marks certificate may enclosed with the refund form.

(vii) Those students whom intend to seek the concession enclose all the relevant documents along with the admission/counseling form so that cases be decided right at the time of admission. They are further required submit an affidavit along with the admission form that if any document is found to be false or any information found to be concealed their admission will be cancelled.

(viii) Seats equal to the number of candidates who have been given shall be filled up over and above the sanctioned seats of the concerned course in the same/subsequent counseling following the original merit list of general category.

(ix) On shifting from one course to another, a student, if provided tuition fee concession in the previous Course will be entitled to claim the said concession in the latter 12 of 23

course only if the said concession is available in the latter course."

13. Thus, in our considered opinion, if the benefit was to be taken, it

does not lie in the mouth of the student to say that the rule has to be read in a

particular manner and it would not apply if the exam had not been given.

Even otherwise, it is to be noticed that the rule was never subject matter of

challenge before the learned Single Judge and the prayer was only to grant

her scholarship and not to terminate her internship. The exercise which has

now been conducted by the learned Single Judge was not a subject matter of

consideration as such of the writ petition. It is settled principle that

prospectus/hand book would have the force of law and it has been

consistently held so by 6 Full Benches of our Court, which apparently could

not be brought to the notice of the learned Single Judge. Reliance can be

placed upon the judgment passed in Swati Bishnoi vs. Panjab University and

another, 2016 (3) SCT 118 wherein, reference has been made to Amardeep

Singh Sahota vs. State of Punjab 1993(4) S.C.T. 328, Raj Singh vs.

Maharishi Dayanand University 1994(2) S.C.T. 766, Sachin Gaur vs.

Punjabi University 1996(1) S.C.T. 837, Rahul Prabhakar vs. Punjab

Technical University, Jalandhar 1997(3) S.C.T. 526, Indu Gupta Vs.

Director of Sports, Punjab 1999(4) S.C.T. 113 and Rupinder Singh and

others vs. The Punjab State Board of Technical Education & Industrial

Training, Chandigarh and others 2001(2) S.C.T. 726. The relevant

observations made in Rahul Prabhakar's case (supra) read as under:-

"7. A Full Bench of this Court in Amardeep Singh Sahota v. State of Punjab, (1993) 4 SLR 673 : 1993(4) SCT 328 (P&H) (FB) had to consider the scope and binding force of the provisions contained in the 13 of 23

prospectus. The Bench took the view that the prospectus issued for admission to a course, has the force of law and it was not open to alteration. In Raj Singh v. Maharshi Dayanand University, 1994 (4) RSJ 289 : 1994(2) SCT 766 (P&H) (FB) another Full Bench of this Court took the view that a candidate will have to be taken to be bound by the information supplied in the admission form and cannot be allowed to take a stand that suits him at a given time. The Full Bench approved the view expressed in earlier Full Bench that eligibility for admission to a Course has to be seen according to the prospectus issued before the Entrance Examination and that the admission has to be made on the basis of instructions given in the prospectus, having the force of law. Again Full Bench of this Court in Sachin Gaur v. Punjabi University, 1996 (1) RSJ 1 : 1996 (1) SCT 837 (P&H) (FB) took the view that there has to be a cut off date provided for admission and the same cannot be changed afterwards. These views expressed by earlier Full Benches have been followed in CWP No. 6756 of 1996 by the three of us constituting another Full Bench. Thus, it is settled law that the provisions contained in the information brochure for the Common Entrance Test 1997 have the force of law and have to be strictly complied with. No modification can be made by the Court in exercise of powers under Article 226 of the Constitution of India."

14. Thus, from the above, it would be clear that it is not permissible

for the writ court to make any modifications in exercise of its powers under

Article 226 of the Constitution of India. Therefore, for the learned Single

Judge to have exercised his jurisdiction to read down the meaning as such of

a compartment or reappear was not permissible. In similar circumstances, the

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Apex Court in K. Sujatha vs. Marathwada University, 1995 (Sup1) SCC 155

held that the ordinance provided that a candidate who was taking admission

should have obtained 50% of the total marks in the 4 subjects together taken

at one and the same attempt in the qualifying examination. Since the

candidate did not pass the qualifying examination in the said terms, it was

held that she was not eligible in terms of the said ordinance. In such

circumstances, the writ petition of the candidates as such had been dismissed

by the Bombay High Court and the Apex Court did not accept the argument

but only in peculiar facts and circumstances allowed the candidate to continue

her studies. The relevant observations read thus:-

"1. The appellant was admitted to the MBBS course commencing from October 19, 1992 in the Latur Medical College, State of Maharashtra. She was admitted against one of the seats filled by the management under its discretionary quota. The appellant joined the course in October 1992. The Marathwada University, Respondent 1, by its letters dated December 4, 1992 and January 15, 1993 cancelled the admission granted to the appellant. According to the University, the appellant was admitted in violation of Ordinance 211(a) of the University Ordinances and, as such, she was not entitled to continue her studies. The appellant challenged the said orders before the Bombay High Court by way of a writ petition under Article 226 of the Constitution. The High Court dismissed the writ petition. This appeal by special leave is against the judgment of the High Court.

                   2.   Ordinance         211   (a)   of   the   University
            Ordinances is as under :-




                               15 of 23

"A candidate for admission against the open seats to the Medical Course must have obtained not less than 50 per cent of the total marks in English and the Science subjects (i.e. Physics, Chemistry and Biology) taken together at one and the same attempt in the qualifying examination. Candidates belonging to the Backward Class Communities (i.e. Scheduled Castes and Scheduled Castes converts to Buddhism, Scheduled Tribes including those living outside specified areas, Denotified Tribes and Nomadic Tribes and other Backward Communities) and applying for admission to reserved seats must have obtained not less than 40 per cent of the total marks in English and Science subjects (i.e. Physics, Chemistry and Biology) taken together at one and the same attempt in the qualifying examination."

3. It is not disputed that the appellant passed the qualifying examination in two attempts. Ordinance 211(a) clearly lays down that a candidate for admission against the open seat to the medical course must have obtained not less than 50 per cent of the total marks in the four subjects taken together at one and the same attempt in the qualifying examination. Since the appellant did not pass the qualifying examination at one and the same attempt, she was not eligible in terms of Ordinance 211 (a) of the University Ordinances."

15. The principle of estoppel as such also would apply and a

candidate cannot be allowed to approbate and reprobate in the same breath.

The benefit of concession on one hand cannot be claimed and on the other

hand, the arbitrariness in the rule regarding concession which was accepted

and was to be strictly applied. Reliance can be placed upon the judgment in

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State of Punjab vs. Dhanjit Singh Sandhu, AIR 2014 SC 3004 wherein, it

was held that having accepted the terms and conditions of allotment and the

extension fees which was payable as per the terms of the allotment letter, it

was not permissible for the defaulting allottees of plots who had firstly agreed

to abide by the terms and conditions of allotment and later sought to deny

their liability as per the agreed terms. Thus, a person who seeks a rule of

equity is precluded by way of his actions and conduct from asserting the right

and the writ petitioner would be also bound by the said principle. Reliance

can also be placed upon the judgment passed in Mehar Chand vs. State of

Punjab, 1999 (3) SCT 162 wherein, the co-ordinate Bench held that the

instructions on the basis of which regularization was sought could not be

challenged on the ground that the date of regularization be counted as to the

suitability as such and from the earlier date for the purposes of seniority. It

was accordingly held that the entire instructions have to be applied to an

individual as to from which date the service is to be counted while placing

reliance upon two Division Benches in CWP No. 9200 of 1993, Gurmail

Singh vs. State of Punjab and others decided on 21.07.1994 and CWP No.

14338 of 1997, Jacob vs. State of Punjab and others decided on 12.05.1998.

16. Thus, in the teeth of the settled law, we are of the considered

opinion that to hold to the contrary under Question No. 'A' that clause 9(vi)

had to be interpreted in a particular manner was beyond the pale of

jurisdiction of the learned Single Judge and is an exercise which should have

not been endeavored and laboured on. It is settled principle that a writ of

mandamus could only be sought if there was a legal right as such accruing.

Reliance can be placed upon the judgment of the Apex Court in Mani Subrat

Jain vs. State of Haryana, AIR 1977 (SC) 276 wherein, it has been held as 17 of 23

under:-

"The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something (See Halsbury's Laws of England 4th Ed. Vol. I, paragraph 122; State of Haryana v. Subash Chander Marwaha & Ors.(1974) 1 SCR 165. Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed & Ors., (1976) 3 SCR 58 and Ferris Extraordinary Legal Remedies paragraph 198 ."

17. Similarly, in Maharshi Dayanand University vs. Surjeet Kaur,

(2010) 11 SCC 159, it was held by the Apex Court that the High Court cannot

direct an authority to act in contravention of statutory provisions and

directions issued as such would not be permissible. In the said case, the issue

was whether the candidate who was pursuing regular course for examination

in full subjects of the university could be simultaneously allowed to appear in

another regular course of the same university or another university or Board.

Accordingly, it was held that under Article 226 of the Constitution of India,

the rule of law is to be enforced and directions contrary to what has been

injuncted cannot be issued. Once the Handbook/Prospectus as such has been

held to be having the force of law by the six Full Benches referred to above, it

was not within the domain of the learned Single Judge to read it down

otherwise.

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18. Counsel for the University was also well justified in holding out

that giving a supplementary examination only amounts to making up the

deficiency and there is no doctrine of relation back while placing reliance

upon three-Judge Bench judgment of the Apex Court in Council of

Homeopathic System of Medicine, Punjab vs. Suchintan, 1993 (3) SCT

276. In Rupinder Singh's case (supra), the same position was also reiterated

by the Full Bench that passing the supplementary examination would not

relate back to the date of passing of the annual examination and there is no

retrospective operation. A Division Bench of the Bombay High Court in

Nikhil Arvind Bavdekar vs. Shivaji University, 1995 (2) BCR 686 held that

student cannot insist on any further chances for clearing the MBBS

examination than what was provided, as a matter of legal right.

19. Resultantly, keeping in view the above reasoning, we are of the

considered view that the judgments which are relied upon by the respondent

regarding not appearing in the examination is not to be treated as

compartment is not liable to be gone into, keeping in view the fact that once a

concession is being accepted and taken, which is an exception to the general

rule, it has to be strictly applied. Therefore, it would not lie in the mouth of

the candidate as noticed above to claim the benefit without qualifying for the

pre-requisite condition which had been prescribed.

The conduct of the respondent:

20. Thus, the argument as such raised that merely because the

student had not appeared in the exam and is not to be treated as a

compartment would run in the teeth of the concession which was granted

which is for a purpose as such and conditional upon the fact that the

examination should have been passed in the first attempt. It is not disputed 19 of 23

that on account of the fact of illness, the writ petitioner could not appear in

the first examination which was held for the 3rd year (6th semester) in French-

III paper on 14.05.2018. Her application had been duly received on

12.06.2018 (Annexure R-1) wherein, on account of the medical certificate

attached, a prayer was made that the said absence be accepted. The

processing was done at the level of the University by forwarding the same on

12.06.2018 itself to the Controller of Examinations for further necessary

action by the Director of the Institute which has been endorsed on the said

document itself. The processing as such had taken place whereby the medical

cases of the candidates had been examined and approved by Dr. Deepak

Kumar of BGJ Health Centre, Panjab University, which would be clear from

Annexure R-4 that cases of 5 candidates of the 4th and 6th semester were

processed and the writ petitioner's name also figures in the same. The date

sheet as such had been notified on 06.07.2018 also wherein students who had

missed 2nd, 6th and 8th semesters theory papers due to clash/sports

events/medical in May June, 2018 had been granted the benefit of the special

chance. The exam as such was thus slated for 14.07.2018, which the

petitioner chose not to appear in. The explanation though given is that she

had not been intimated the same but it was also her duty as such to keep in

check with the department as to when the special chance was being given as

apparently she had been medically examined and approved by the concerned

Doctor of the University in pursuance to her application given by her father

itself. Therefore, it does not lie in her mouth as such to say that she was

never aware of the special chance which was slated to take place. The only

advantage she has is that there is no official record of communication and the

University has only fallen back on a telephonic information intimated to the 20 of 23

candidates. A perusal of (Annexure R-5) would go on to show that out of the

5 candidates, two had appeared in the special chance and, therefore, it cannot

be said that candidates had not been intimated. However, the benefit of doubt

as such can be given on account of the fact that she had not been intimated by

any written communication. The story, however, does not end there since

admittedly on 17.05.2019, in the next year, the said exam was held but the

petitioner chose again not to appear. During the course of hearing, it has

transpired that she chose not to appear due to clash of the examination with

her 8th semester examination.

21. In such circumstances, we are of the considered opinion that it

does not lie in the mouth of the candidate now to say that the university was

acting with any malice towards her. Apparently, having not appeared on

17.05.2019, her father had filed an application dated 24.06.2019

(Annexure P-3) that her request for holding the fee till the result comes of

French-III exam in April-May, 2020 be acted upon by giving sympathetic

consideration. The same was rejected on 26.06.2019 itself, that it was not

permissible under the Rules and guidelines thus reproduced above. The

notice had also been put up on 04.07.2019 (Annexure P-10) for deposit of the

fees, which she chose not to do so, which led the institute to reject her claim

on 10.07.2019 (Annexure P-5) that her request had been rejected by the

Board of Control of the Institute and she should submit the fees at the earliest.

It was in such circumstances the fees was demanded from her on 10.07.2019

and resultantly on account of the non-payment, the impugned communication

dated 19.07.2019 (Annexure P-8) was issued since she had not paid the

requisite fee of the 8th semester as well as the 9th semester. The request of fee

concession had already been rejected and she was not allowed to continue 21 of 23

with her internship and resultantly, she was held not eligible for any

concession. It is, thus, apparent that the petitioner was insisting as such to

continue with her freeships on her own terms which was not permissible and

on account of the non-payment of fees, the university was forced to take the

drastic step. It has now also come on record that she cleared the said

examination on the strength of the instructions issued by the University due to

Covid-19 situation on the basis of the performance in the earlier years.

Whether finding of legal malice is recordable in the absence of any official respondent having been impleaded by claimant?

22. It is also to be noticed that in pursuance of the earlier directions,

the University has placed on record an additional affidavit showing that as

many as 5 students who were availing the benefit of freeship/EWS are no

longer getting the benefit of freeship on account of the fact that they had re-

appears and out of them, one did not apply for continuation of freeship. It has

further been mentioned that now those students are studying by paying full

fees of further course. Thus, it cannot be said that the University was only

targetting the writ petitioner, as successfully argued before the learned Single

Judge. The findings recorded by the Learned Single Judge are also without

noticing the fact that no person had been impleaded by name against whom

malafides had been alleged. Therefore, in the absence of the necessary

exercise having not been done, it would not be justified to hold out that it is a

case of legal malice against the person who was getting the benefit of EWS

scholarship and that it was done with a particular aim or object. The writ

petitioners cry for justice has to be juggled with parity that she was not heard

and principles of natural justice were violated but the same principles would

also apply to the officials of the Institute and the University, which fact

22 of 23

escaped the notice of the Learned Single Judge.

Findings:

23. Accordingly, we are of the considered opinion that the findings

recorded by the Learned Single Judge as such are difficult to maintain in the

facts and circumstances of the case.

24. However, the fact remains that by virtue of interim orders, she

has continued and completed her law degree and has also been granted a

provisional degree. Thus, in the above facts and circumstances, it would be

appropriate if she deposits the full fees for the balance semesters as

apparently for the 7th semester, the fees has not been refunded. Therefore, she

is not entitled to finish her course without having paid the full fees having

violated the conditions of the concession granted to her in spite of the fact

that she had a chance to clear the examination in the subsequent year also.

25. Resultantly, the University shall raise a demand of the fee from

the 8th semester onwards within a week and on deposit of the balance fee, the

University shall issue the final degree in place of the provisional degree

which has already been issued to her within a period of 2 weeks from the said

deposit. The judgment of the learned Single Judge is modified to that extent

and also the amount of damages of Rs.1,00,000/- as compensation are also

held to be not payable in the above facts and circumstances as a natural

corollary of the appeal being allowed.

                                                  (G.S. SANDHAWALIA)
                                                          JUDGE


 30.01.2023                                  (HARPREET KAUR JEEWAN)
shivani/naveen                                        JUDGE
      Whether reasoned/speaking                   Yes
      Whether reportable                          Yes
                               23 of 23