RAJASTHAN HIGH COURT

                Mohammad Irfan

                Vs.

                M. Dayanand Saraswati University

                Civil Writ Petn. No. 866 of 2000
                          (V.S. Kokje, J.)

                27.04.2001

                ORDER

V.S. Kokje, J.

1. The case was fixed for consideration of stay application but with the consent of the
parties, it was finally heard.

2. The question involved in the case is as to whether the petitioner was entitled to
appear at the LL.B. First year examination. The petitioner for the first time appeared
in 1997-98 as examination of LL.B. First Year as a regular student. In September,
1998, the result of the examination was declared and the petitioner was declared failed
in that examination. In April, 1999, the petitioner appeared as an ex-student in the
LL.B. First Year examination. In August, 1999, the result of the examination was
declared and the petitioner was declared to have failed because he could not secure
48% marks in aggregate in all the subjects though he had secured minimum 36%
marks in each subject. He appeared in November, 1999 examination but failed. The
petitioner wanted to appear in the examination for the year 2000, LL.B. First Year
examination but the University held him to be disqualified for taking the examination.
He, therefore, filed this petition.

3. Meanwhile, while appearing at the supplementary examination for the year 1999,
the petitioner sought admission as a regular student for LL.B. Second Year and
deposited fee for the LL.B. Second Year. On the declaration of the result of the
supplementary examination, the petitioner having failed therein, the respondent told
him that he will not be allowed to prosecute the studies for LL.B. Second Year and
also not be allowed to take the examination of the Second Year. The petitioner
thereupon filed this petition. On 27-4-2000, this Court allowed him to take the
examination of the LL.B. Second Year subject to the result of this petition.

4. The petitioner's contention is that he was entitled to one more chance to appear in
the LL.B. First Year examination under Ordinance 163(ii) of the University Ordinance
which reads as under :-

       "O. 163. Ex-students shall be entitled to appear at the examinations of the
       University without keeping terms except in the Faculty of Medicine and
       Pharmaceutics and the Ayurvedacharya (B.A.M.S.) and Ayurveda Brahaspati
       examination in the Faculty of Ayurveda."
       Provided that :
       (i) xxxx xxxx xxxx
       (ii) An ex-student for the LL.B. First/Second/Third Year examination shall be
       required to take the examination in the immediately following year and if he
       fails again or does not take the examination, he will be given further two
       consecutive chances only to clear the examination."

5. The petitioner contends that he was entitled to appear at the LL.B. First Year, 2000
examination as well as LL.B. Second Year, 2000 examination. He claims that an ex-
student is entitled to appear in the examination next year of his failure and if he fails
again and does ot appear in the said examination he is to be given two consecutive
chances to appear in the examination. According to the learned Counsel for the
petitioner, the petitioner appeared in the 1999 examination as an ex-student and failed,
he was, therefore, entitled to further two consecutive chances to appear, out of which
one chance had already been taken in the November, 1999 Supplementary
examination in which he again failed. He was, therefore, entitled to appear at the next
examination conducted in the year 2000. On the contrary, the respondent has
contended that the examination of the LL.B. First Year in accordance with the old
course was discontinued in the year, 2000 and there was no examination of old course
of LL.B. First Year held in the year 2000. This fact was already notified to all the
candidates. The petitioner himself has filed notice dated 8-2-1999, Annexure-6 to the
writ petition issued by the University in which it was notified to all LL.B. First Year
students of the Session 1998-99 that ex-students shall be entitled to appear in the
LL.B. First Year examination for the year 1999 which will be the last chance for them.
It was categorically stated in this notice that those who failed in LL.B. First Year
examination, 1999 shall have to take admission in LL.B. First Year again on the basis
of merit. The University has also filed a circular issued to all the Principals of Law
Colleges, affiliated to M.D.S. University dated 13-1-1999, in which it has been
categorically stated that the students appearing in LL.B. First Year as ex-students in
the ensuing 1999 examination shall be allowed to appear in all the six papers as per
Syllabus 1997-98. This will be their last chance. In case of failure of such students
will be required to seek admission in LL.B. First Year on merit basis in new scheme of
nine papers.

6. The learned Counsel for the petitioner contends that right given to the students by
Ordinance 163(ii) cannot be taken away by circulars issued by the University.
Provisions of the Ordinance have statutory force and they cannot be taken away by
administrative circulars issued by the University. The argument on the face of it is
attractive but on a proper interpretation of provisions of the Ordinance 163(ii), it
would be clear that it has no force.

7. Ordinance 163 pre-supposes that the course continues and the examinations are
held.It is only a provision permitting an ex-student to appear in examination without
following a regular course of study by attending an affiliated College. It is essentially
a concession given to ex-students to appear at the examination without attending
regular classes.It is not a provision guaranteeing holding of an examination for ex-
students till they pass out. The provision also does not put any restriction on the power
of the University to discontinue a particular course or an examination. If the
University decides not to hold the examination for a particular course from a particular
year, it cannot be compelled to hold such an examination only for ex-students. When
the general examination open to regular students as well as ex-students itself is not
being held, there is no question of an ex-student taking a chance at such an
examination. What is given to an ex-student by Ordinance 163 is only a chance to
appear at an examination and not a guarantee that the examination will be held for ex-
students till each of them exhausts his maximum chances. Obviously, if the
examination itself is not being held, an ex-student has no occasion to take a chance at
the examination. The provision does not give any right to an ex-student to claim that
an examination shall be held for regular students and ex-students and the ex- students
should be given a chance at such an examination. There is no question of any
prejudice caused to the petitioner also because the University had notified even prior
to 1999 examination its intention to discontinue the LL.B. Fiirst Year examination
under the old course from the next year. The petitioner cannot make any grievance on
that account.

8. The learned Counsel for the petitioner heavily relied on a Full Bench decision of
this Court in Virendra Kapur v. University of Jodhpur,1 for the proposition that any
notification issued by the University cannot override the Ordinance is also for the
proposition that once a student is admitted to a course on the basis of certain rules he
has to be dealt with under those rules only and new rules do not apply to him. I have
carefully gone through the decision. In the facts of that case, Rule 38 provided that if a
candidate failed in one written paper only in an examination and if he gets an
aggregate of 55%, he shall be permitted to keep terms in the next higher class. It
further provided that he shall appear and pass in the paper in which he failed along
with the next higher examination. The new rule provided for a supplementary
examination on failing in which they had to take admission in the original class. The
ruling is clearly distinguishable. The case in hand relates to closure of an old course
and discontinuation of an examination. It is not a case of change of rules. On the
correct interpretation of Ordinance 163, I have concluded that an ex-student can take
advantage of the rule only when general examination open for general students is
being held. If the general examination is not being held an ex-student cannot force the
University to hold it to enable him to appear at it.

9. In view of the aforesaid discussions, the petition has no force, it is dismissed. As
the petitioner has not passed LL.B. First Year examination, he was not eligible to
appear at LL.B. Second Year examination which he has taken under the orders of this
Court. The LL.B. Part-2 examination of the petitioner taken under the direction of this
Court is hereby cancelled. The University shall not declare his result of LL.B. Part-2
examination.
Petition dismissed.

Cases Referred.

1. AIR 1964 Raj 161