Rajasthan High Court

Lalit Mohan Sharma S/O Shri ... vs Rajasthan University Of Health ... on 11 August, 2021

Bench: Sanjeev Prakash Sharma

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 6628/2020

1.     Lalit Mohan Sharma S/o Shri Bhagwan Sahay Sharma,
       Aged About 23 Years, R/o Bandikui, District Dausa (Raj.)
2.     Hansraj Saini S/o Shri Jagdish Prasad Saini, Aged About
       26 Years, R/o Malaya Wali Dhani Sahapura, District Jaipur
       (Raj.)
3.     Rajesh Kumar Bairwa S/o Shri Ram Bharosi Bairwa, Aged
       About 27 Years, R/o Village And Post Bardala, Tehsil
       Nadoti, District Karuli (Raj.)
                                                                  ----Petitioners
                                   Versus
1.     Rajasthan University Of Health Sciences, Through Its Vice
       Chancellor, Sector 18 Pratap Nagar, Jaipur.
2.     Controller    Of   Examinations,           Rajasthan      University   Of
       Health Sciences, Sector 18 Pratap Nagar, Jaipur.
3.     Jaipur Nursing College, Through Its Principal Dhand,
       Tehsil Amer, Jaipur.
                                                                ----Respondents

For Petitioner(s) : Mr. Brijesh Kumar Bhardwaj For Respondent(s) : Ms. Rekha Jain for Mr. Mohd. Ashfaq Khan

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

11/08/2021

The issue involved in the present petition stands finally

adjudicated by this Court in bunch of writ petitions with lead case

of Fauran Singh versus Rajasthan University of Health

Sciences & Anr. : S.B. Civil Writ Petition No.10298/2019

decided on 31.07.2020 wherein issue regarding the number of

attempts which may be allowed to a candidate for appearing in

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the exam was considered by this Court and it was decided as

under:-

7. For adjudication of the issue, it would be appropriate to consider the University Ordinance, which governs the examinations. The relevant Ordinance 299-V-4 and Ordinance 299-V-10 reads as under:-

"299-V-4 There shall be annual examinations and a second examination for the remanded candidates within a period of 4 to 6 months after the declaration of result."

"299-V-10 Maximum number of attempts permitted for each paper will be three including the first attempt. Maximum period to complete the course successfully should not exceed eight years."

8. It appears that aforesaid Ordinance was amended by the Rajasthan University of Health Sciences vide Notification dated 28th November, 2017 and in place of above provision, following provisions were replaced in Ordinance 299(V)4 and 299(V)10, which reads as under:-

"299-V-4 There shall be two examinations in a year - One Main Examination after regular study of 11 th months of the session and the Second Examination (Remanded Exam. or Supplementary Exam.) for those candidates who have failed in the main exam. The Remanded Supplementary examination shall be conducted within a period of 4-6 months after the main examination conducted.

299-V-10 A candidate can avail any number of attempts for each paper with the condition that maximum period for passing B.Sc. Nursing course is not more than eight (8) years. If he/she fails to clear all previous year due papers within eight (8) years for such candidate the enrollment will be cancelled automatically and he/she have to leave/discontinue the course.

(There shall be no ceiling of number of attempts in failing subjects. However, a candidate is required to pass all subjects of B.Sc. Nursing with in a period of

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eight years from the date of admission, failing which candidate shall deemed to be discharged from the course automatically."

9. In the opinion of this Court as the Ordinance has been amended only in 2017 and the petitioners had joined in 2010, the University Ordinance as quoted earlier part shall have an application for the present purposes.

10. As per the said Ordinance, the respondents were required to conduct annual examination each year and second examination for the remanded candidates within a period of 4 to 6 months after the declaration of the result. Admittedly, for the B.Sc. Part-I Exam, the candidates who were admitted in 2010 appeared in the examination only in November, 2011 for the first time and thereafter, have appeared in the remanded examination in November, 2012. The Session of First Year, therefore, seems to have been extended almost for a period of 2 years.

11. From the careful reading of Ordinance 299-V-10 as it existed earlier, this Court finds that the Ordinance has two parts. The first part relates to maximum number of attempts permitted for each paper as three including the first attempt and the second part is with regard to the maximum period to complete the course successfully which should not exceed eight years while in the new Ordinance, the language is changed and a candidate is entitled to avail any number of attempt, however, the maximum period for passing B.Sc. (Nursing) Course is not more than eight years. Thus, while in the previous Ordinance the word "should complete course in eight years" was mentioned which is to be treated as directory and not mandatory; in the new Ordinance, the language is in a mandatory form stating the words "not more than eight years".

12. This Court has already held that since the students were admitted in the year 2010, the Ordinance applicable on them would be the previous Ordinance and the new Ordinance, which has come into force from 2017, will not

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apply as all the present petitioners are students who were admitted in 2010-2011.

13. On noticing the judgments cited by learned counsel for the petitioners (supra), this Court finds that the Coordinate Bench has taken a view that if a student has been deprived of yearly examination and there has been a delay in conducting of examinations by the University, he cannot be made to suffer and on the basis of equity, orders have been passed allowing them to appear in the examination.

14. On the other hand, in the judgments cited by learned counsel for the respondents (supra), the Coordinate Bench has taken a view that equity cannot play a role.

15. However, in both types of judgments, as noticed above, the provisions have not been examined. This Court, therefore, deems it appropriate to examine the case in the light of the Ordinance and interpretation thereto.

16. In view of the interpretation of Ordinance, referred herein above, this Court finds that the University was required to conduct main examinations each year and also the supplementary examination within four to six months after declaration of the result in terms of the Ordinance 299-V-4. As per Ordinance 299-V-10, the unsuccessful candidates would be entitled to be allowed maximum number of attempts as provided therein but if the maximum number of attempts could not be completed within eight years, a student cannot be ousted from completing the number of attempts on the ground that the total number of eight years are over as this Court has already held that the words "eight years" cannot be treated to be mandatory in the Ordinance as it existed earlier.

17. Accordingly, these writ petitions deserve to be allowed.

18. As noticed, the petitioners were allowed to participate and appear in the examination by interim orders passed from time to time in the individual writ petitions.

19. In view of the interpretation as taken above, these writ petitions are allowed and the respondent-University is

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now directed to declare result of the petitioners. If the petitioners are found to be successful in the examination, they shall be declared pass and their marks-sheet and degree be accordingly issued. The exercise shall be conducted within a period of three months from today. All pending applications also stand disposed of."

In the present case also, the petitioners were disallowed to

appear in the B.Sc Nursing Part-IV Examination, this Court by an

interim order allowed the petitioners to participate in the B.Sc

Nursing Part-IV Examination, July, 2020 result whereof has been

now produced in the Court.

Taking into consideration the aforesaid adjudication, I am

inclined to allow this petition. Accordingly the University shall now

declare the result of the petitioners returning result to the

University council.

It is now directed that the University shall declare the result

of the petitioners within a period of seven days henceforth and

issue the relevant mark-sheets.