Dr.Manoj Kumar Bansal vs Vice Chancellor and Others

K.M. Thaker, J.—The appeal under Clause 15 of Letters Patent is directed against the order dated 15.04.2010 passed by the learned Single Judge rejecting the petition preferred by present Appellant. In the petition preferred by present Appellant, the Appellant-Petitioner had prayed for below mentioned relief(s):

13(A)This Hon''ble Court may be pleased to issue a writ of mandamus and or/any other appropriate writ, order or direction to hold and declare that the Petitioner is eligible to receive the Award of Dr. Nathubhai Harjivan Patel D.M. Cardiology Gold Medal as per the rules framed by the Respondents herein and the Respondents be directed to award the same to the Petitioner in accordance with the said Rules.

(B) Pending hearing and final disposal of this writ petition, this Hon''ble Court may be pleased to direct the Respondents to decide the representation of the Petitioner which is at Annexure-G and in the meantime not to declare the award of Gold Medal for the course of D.M. (Cardiology);

The relief/s prayed for by the Appellant-Petitioner were resisted by present Respondent Nos. 1 and 2 mainly on the ground that though the Appellant-Petitioner had obtained higher number of marks than the Respondent No. 3, however, his claim for the medal cannot be accepted because he had passed the examination at second attempt. The leaned Single Judge accepted the objection and rejected the petition preferred by present Appellant. Hence present appeal.

Heard Mr. Marshall, learned Senior Counsel has appeared with Mr. T.R. Savani, learned advocate for the Appellant-Petitioner, Mr. S.N. Shelat, learned Senior Counsel has appeared with Ms. V.D. Nanavati for the Respondent Nos. 1 and 2 and Mr. A.C. Gandhi, learned Counsel has appeared for the Respondent No. 3 and perused the record. At the request of the learned Counsel for the Petitioner and with consent of the learned Counsel for Respondent we have heard the appeal for final decision. The learned advocates for the Respondents have waived the service of process. The Respondents have relied upon the affidavit filed on the record of the petition.

The factual background relevant for considering the rival contentions can be summarized thus:

4.1 The Appellant-Petitioner obtained admission, in July-2005, in the degree course in the faculty of D.M. Cardiology,("said course", for short) after clearing All India Entrance Examination. It is pertinent to note, at the outset, that there is only one seat for the said degree course.

4.2 The Appellant has claimed that though the said course was being offered and conducted since 1989, it was not a recognized course and that therefore, the Appellant was constrained to file a writ petition pursuant to which the Respondent university recognized the said course and the Respondent university started awarding degree for the said course.

4.3 The said course is of three years'' duration. Thus for the term which commenced in July-2005, the examination, theory and practical, were held in July-2008. The Petitioner appeared in the said examination. While the Petitioner could clear the theory papers, he could not clear the practical examination and was declared "failed" in practical examination. The overall result declared by the university for the Petitioner was "failed".

4.4 The Petitioner unsuccessfully appealed against his result to the Vice Chancellor. He, thereafter, filed a writ petition being SCA No. 14606 of 2008 which also came to be rejected by order dated 16.12.2008.

4.5 The said order, passed in the petition, was taken in Appeal by present Appellant. In the Letters Paten Appeal No. 1446 of 2008, the Division Bench, while clarifying that any opinion with regard to the Appellant''s grievance was not expressed, observed, while disposing the appeal, that "if any representation is received by the Executive Council the same may be considered in accordance with law".

4.6 In his said petition, the Appellant herein had claimed that pursuant to the order in above mentioned appeal, he had submitted a representation in June-2009 to the Respondent university to rescind the examination held in July-2008 which had remained pending before the university.

4.7 After the examination, for the said course which was held in July-2008, the next examination was held in the month of January-2009 wherein the Appellant appeared. The Appellant was declared "pass" in the said examination. The Appellant secured 601 marks out of 1000 marks.

On the apprehension that though he had cleared the examination held in January-2009 and had secured highest marks, he might be denied "Dr. Nathubhai Harjivan Patel, D.M. Cardiology Gold Medal" (hereinafter referred to as "the said medal or "the gold medal") which is awarded every year to the student obtaining highest marks in the Examination of said course held in the month of March/April and in October/November every year the Appellant preferred the petition seeking declaration about his entitlement and also direction to th Respondent which came to be rejected by the order dated 15.4.2010 impugned in present appeal.

It appears that the decision with regard to the Appellant''s representation was taken by the Executive Council of the Respondent university during its meeting held on 11th October, 2009. The Executive Council decided to maintain the examination held in July-2008 and also maintained the results declared at the relevant time. Thus the Appellant''s result was treated as "pass at second attempt".

During the hearing of the petition in which the impugned order came to be passed, it came on record that the Respondent No. 3, who had appeared in examination in July-2009 and passed the said examination with 589 marks out of 1000 marks i.e. lesser numbers/marks than the Appellant who had secured 601/1000 marks, was awarded the gold medal on the ground that the said Respondent No. 3 passed the examination at first attempt.

7.1 Having regard to the said factual background, which distinguished the case of the Petitioner from the Respondent No. 3 inasmuch as the Respondent No. 3, though obtained less number of marks than the Petitioner, had cleared the examination at first attempt and therefore, he was considered eligible for the said gold medal in light of the Ordinance No. 124 framed by the university, the learned Single Judge upheld the university''s submissions that Petitioner cannot be awarded the said gold medal as he had passed the examination at second attempt. The Appellant is aggrieved by the said decision and order of the learned Single Judge hence present petition.

Mr. Marshall, learned Senior Counsel for the Appellant relied upon the rules framed for awarding the said gold medal and submitted that the rules do not prescribe such restrictions or provisions which is read into the rules by the Respondent university and approved - upheld by the learned Single Judge inasmuch as the rules do not provide that student who clears the examination at second attempt will not be eligible for the said gold medal. The only requirement as per the rules is that the gold medal shall be awarded to the student who obtains more marks in the examination of D.M. Cardiology in March/April and in October/November held every year and the restriction contemplated by the rules is that the student should have passed the examination within one year of the expiry of the minimum period prescribed by the regulations governing the examination. He further submitted that as per the rules the student, who clears the examination in the month of March/April as well as the student who clears the examination with more marks in October/November would be eligible for gold medal thus students who appear in examination in October/November are not to be excluded and that even otherwise the January 2009 examination was repeat examination for the examination held in July 2008. The learned Senior Counsel also submitted that the Ordinance No. 124 which pertains to scholarship, prize etc. will not be relevant or applicable in the matter of deciding eligibility of the student for the said medal as per the rules.

Per contra, Mr. Shelat, learned Senior Counsel submitted that amongst the two students, the student who passes the examination at the first attempt has to be considered more meritorious than the student who passes the examination, though with more number of marks, but at second attempt. He submitted that in present case since the Respondent No. 3 cleared the examination at first attempt he has been considered eligible for the gold medal, over the Petitioner''s case since the Petitioner cleared the examination at second attempt. The learned Senior Counsel referred to the Ordinance No. 124 and Provision No. 230 i.e. the eligibility and other terms for awarding the said gold medal and contended that the Petitioner''s claim is misconceived and the learned Single Judge has rightly rejected the same. Mr. Shelat, learned Senior Counsel relied upon the decision by the Apex Court in the case between Principal, Patna College, Patna and Others Vs. Kalyan Srinivas Raman, and in the case between Bhusan Bhushan Uttam Khare Vs. The Dean, B.J. Medical College and others,

The Respondent university is, according to the wish of the donor and in light of the terms enumerated by the donor, awarding the gold medal every year to the student who secures highest marks in the D.M. Cardiology Examination. The said provision (free English Translation from vernacular/Gujarati placed on record by the Appellant and herein after referred to as "Provision No. 230") prescribe the terms as per which the gold medal is to be awarded, read thus:

The medal being Dr. Nathubhai Harjivan Patel D.M Cardiology Medal be given to the male student/female student who obtains more marks in the examination of D.M. Cardiology held in March/April/ October/November every year (If two students get the equal marks, then it may be given on equal share).

The Executive Council of the Gujarat University if finds necessary to add or change the conditions regarding allotment of the said medal from time to time, it shall be entitled to do so.

5% deduction of the annual interest of this donation will be taken into University General Fund.

The amount of savings of annual income of this donation shall be added in the original amount.

If possible, the medal will be given at the time of convocation function and further the donor will be informed every year.

10.1 Since the Respondent university has heavily relied on the Ordinance No. 124, it would be appropriate to take into account the said provision as well:

O. 124 No candidate shall be eligible for any Fellowship. Prize, Medal or other award, who presents himself for the Examination to which the Award relates, more than one year after the expiry of the minimum period prescribed by the regulations governing that Examination. The computation of the period for the purpose of this regulation shall being from the date of passing of the preceding lower examination which qualified the candidate to enter on the course for the higher examination.

Before proceeding further some of the relevant, however undisputed, factual aspects may be taken note of:

The Appellant and the Respondent No. 3 both secured admission in the degree course of D.M. Cardiology after clearing All India Entrance Examination.

Both, the Petitioner and the Respondent No. 3 had appeared for entrance examination in 2005 However, the Appellant had cleared the said Entrance Examination and secured admission in the aforesaid degree course, at first attempt, in July-2005.

Whereas the Respondent No. 3 cleared the said Entrance Examination, and could secure the admission, at second attempt in July-2006.

The Appellant was registered in the said course on 29.07.2005 while the Respondent No. 3 was registered on 18.07.2006.

The said course has only one seat.

The said course is of 3 years'' duration.

Though the relevant Rule 230 refers to the examinations held in March/April and also in October/November every year, since few years (particularly at the relevant time i.e. when the Appellant and Respondent No. 3 secured admission in the said degree course and appeared for examinations) the examinations are held in July and January every year.

The said degree course being three years'' duration course, the final examination is held at the end of 3rd year e.g. for the student who secured admission in 2005, the examination would be held in July 2008 and for the student who secured admission in 2006 the final examination would be held in July 2009.

Accordingly, the Appellant had, after securing admission in July-2005, appeared in the examination held in July-2008 while the Respondent No. 3 who secured admission in July-2006 had appeared in examination held in July-2009 and he i.e. Respondent No. 3 cleared the said examination with 589 marks out of 1000 marks (first attempt).

However, since the Appellant was declared "failed" in examination held in July-2008, he had appeared in examination held in January-2009 and cleared the examination with 601 marks out of 1000 marks (second attempt).

According to the Respondent university, since the Appellant was declared "failed" in July-2008 and since the said degree course has only one seat, the said medal was not awarded to any student for the year 2008.

It is in the aforesaid factual background that the Appellant has prayed for the relief/s noted hereinabove earlier. The learned Single Judge has, while accepting the Respondent university''s contention rejected the claim and the petition of the Appellant. Therefore, what is required to be decided is whether the decision of the Respondent university and its justification for not accepting Appellant''s claim are sustainable and justified in light of the applicable provision, i.e. provision No. 230 for awarding the said medal read with the Ordinance 124.

In this context, it would be appropriate to take into account, the explanation and defence advanced by the University in support of its action while resisting the petition. In para 4.5 of its reply affidavit, while contending that the Respondent No. 3 passed his final examination at first attempt by securing 589 marks out of 1000 marks, the University, with reference to the Petitioner herein, contended that

...the Petitioner could not be awarded Medal even though he has obtained higher number of marks aggregating to 605 at July, 2009 exam because he has passed the said exam at the second attempt. The effect of the Ordinance is that if a student has appeared at the examination after expiry of minimum period prescribed for the examination he is not entitled to any fellowship, prize, medal or other award. The minimum prescribed period for the purpose of passing the examination is three years. The Petitioner was admitted to the D.M. Cardiology Course in January, 2005. He has not passed his examination within three years i.e. July, 2008. He passed his examination in March, 2009 i.e. after completion of the minimum period prescribed for the examination.

Subsequently, in present Letters Patent Appeal the Respondent University has, in its affidavit dated 5.8.2010 averred in para 3 that I submit that the Petitioner appeared as a repeater in the exam in D.M. Cardiology. He was declared to have passed even the results were declared in January 2009. The Petitioner cannot compare himself with the students who has been awarded Medal by the University i.e. the Respondent No. 3 inter alia contending that he is more meritorious than the Respondent No. 3 overlooking the fact being repeater, he cannot compare himself with the fresher at the examination.

(emphasis supplied)

13.1 In the affidavit dated 22.2.2010 filed before the learned Single Judge, the stand taken by the Respondent University was that the effect of the Ordinance No. 124 was that if a student appeared at the examination after prescribed minimum period he would not be entitled for any medal and the Petitioner had not passed his examination within prescribed minimum period, hence he was not entitled to any fellowship, prize, medal or award. Therefore, it is apposite to take a look at the said Ordinance. The ordinance inter alia provides that:

No candidate shall be eligible for any fellowship, prize, medal or other award, who present himself for the examination to which the award relates, more than one year after the expiry of minimum period prescribed by the Regulations governing that examination...

13.2 It is not in dispute that the Petitioner was admitted/enrolled in the said degree course on 29.7.2005. As noted earlier, the said course is three years'' duration. Thus, according to the registration certificate issued by the University, the Petitioner was required to appear for examination to be held in July-2008. Hence, for being eligible for the Medal, as per the said Ordinance No. 124, the minimum period for Petitioner to present himself for examination was not later than one year after July-2008.

13.3 In present case, it is also not in dispute that the repeat examination, in which the Petitioner appeared, was held in January-2009 and he cleared the said examination with 601 marks, and that therefore, it cannot be said that the Petitioner had not presented himself for examination, and cleared the examination before expiry of "more than one year after expiry of prescribed minimum period".

13.4 The picture would be more clear from the below mentioned details.

(a) entrance examination for admission to the three year''s course cleared by the Petitioner in July-2005.

(b) admitted and registered for the course in July-2005.

(c) date of expiry of minimum period, as per ordinance No. 124, for examination would be July-2008.

(d) date of completion of one year after expiry of minimum prescribed period would be July-2009.

(e) whereas the Petitioner cleared the examination in January-2009.

13.5 The aforesaid chronology demonstrates and establishes that the contention that the Petitioner was not entitled for the Medal as he did not pass the examination within the period contemplated under Rule 124, is misconceived and unsustainable.

13.6 The Respondent University, then added another dimension or ground to its defence by contending that the Petitioner would not be entitled for the Medal because he passed the examination at 2nd attempt.

It comes out clearly from perusal of the provision under Ordinance No. 124 as well as from the terms of the donation i.e. the provision No. 230 for Gold Medal do not contain or even contemplate such provision or restriction or prohibition.

14.1 As noted earlier the only condition prescribed under Ordinance No. 124 is that the student must present himself and clear the examination not later than one year after the expiry of prescribed minimum period of the course concerned.

14.2 The said Ordinance No. 124 does not expressly provide or even impliedly contemplate that a student who passes the examination in 2nd attempt will not be entitled for any Medal.

14.3 The Ordinance No. 124 also does not provide or contemplate that even if the student passes the examination within (before expiry of) one year after the expiry of minimum period for examination, he can be denied the said gold medal (or he would not be considered eligible for the said gold medal) if the examination is cleared on 2nd attempt notwithstanding the fact that he passed the examination within the time frame contained by the ordinance.

14.4 The provision is not capable of being read in the manner it is read, construed and suggested by the university.

Likewise, the provision under the provision No. 230 prescribing the conditions for the said Gold Medal also does not provide or contemplate such restriction or prohibition inasmuch as it is provided under provision No. 230 that "the male student/female student who obtains more marks in the examination of D.M. Cardiology held in March/April October/November every year" shall be eligible for receiving the said medal. It can be noticed from the said provision that the provision does not even suggest that a student who clears the examination in second attempt shall not be considered eligible. Actually, the examination held in October/November (which are ordinarily treated as supplementary/repeat examination for the students who, for any given reason could not clear the main/regular examination) are also included under the provision. Thus, the fact that the provision considers the student who may or who would pass the examination in October/November (now, after the amendment in the system, in January) as eligible and that too without closing-out the student passing the examination at second attempt is significant to suggest that the factum of passing the examination at 2nd attempt is not and was never contemplated to be a disqualification and was not to be treated as disqualification.

The clear language of the provision clearly indicates that the donor also did not intend to exclude the student clearing the examination at second attempt. Otherwise, it would have been clearly specified or at-least it would have been indicated, as has been done by other donors who intended to confer the medal only on him who cleared the examination at first attempt.

15.1 On perusal of the said provisions, it would also become clear that the number of attempts is neither a disqualifying criterion nor it is prescribed as a measure or a scale or standard for comparative analysis amongst the students who appeared at the examination. As per the provision, even for the comparative analysis the prescribed scale or measure or the standard is "more marks" and not "number of attempts".

15.2 Thus, when the doner has not considered it appropriate or necessary to include such a condition or restriction as eligibility criterion, then, such negative restriction which may curtail the scope of the provision cannot be read into the provision and the action of denying the medal on such ground would amount to injecting or reading a new or additional condition in the ordinance No. 124 or provision No. 230 for awarding medals.

The fact that the said provision No. 230 does not contemplate "number of attempts" as a measure or scale for comparative analysis amongst the students or for judging the merits and/or it does not contemplate "number of attempts" as a disqualification, would become clear from the contradistinction or comparison of the said provision No. 230 with other provisions pertaining to awards and medals to be found in the compilation published by the University which contain the "terms and conditions of the donations accepted by the University".

16.1 In the said compilation diverse provisions/terms related to different prizes, medals etc. as per the desire of the donor and permissible frame work prescribed by the university are included and one of the sets of provisions is those applicable to "Doctor K.S. Nargand Sarman - Nidhi Prizes" and the set of Rules contain a provision which specifically provides that the student, for being eligible for the prize, must clear the examination at the 1st trial. The said provision reads thus:

A prize to be called Dr. K.S. Nargund Chemistry Prize" of Rs. 100/- in cash or books at the option of the prize winner shall be awarded annually to a candidate who passes the Third B. Sc. (Special) Examination with Chemistry as his special subject at the first trial and secure the highest number of marks in Chemistry.

16.2 A similar provision is to be found in the terms/rules for "Shree Daulat C. Trivedi Memory Medal" wherein the Rules Nos. 1 and 2 read thus:

''Shri Dolat C. Trivedi Smrutichandrak'' shall be awarded to the student who passes the First Year L.L.B. examination which is being held every year in the month of March/April and November/December every year by obtaining first class at first trial and obtains maximum marks in Criminal Subject.

''Shri Dolat C. Trivedi Smrutichandrak'' shall be awarded to the student who obtains maximum marks in the Criminology and Penology subject in the examination of L.L.M. Which is being held in the month of April/May every year

16.3 As can be seen under Clause-1, it is expressly provided that for being eligible for the medal, the student must have passed first year L.L.B. examination at first attempt in first class and with maximum marks in criminal subject whereas a similar provision is not mentioned in clause No. 2.

16.4 The contradiction between the terms applicable to the "Nathubhai Harjivan Patel, D.M. Cardiology gold Medal" (i.e. the medal for which Petitioner has raised claim) on one hand and the terms applicable in case of the other two medals illustratively referred above, drives home the point that the relevant provision No. 230 applicable to the said medal does not provide for and does not contemplate a condition to clear the exam at "first attempt" or a prohibition that a student who clears the examination at 2nd attempt will not be eligible for the medal.

The only scale or measure for comparative analysis and the only eligibility criterion prescribed under the rule is more marks. It is, therefore, not possible to read such restriction or prohibition in the said provision 230.

17.1 Thus, the decision and action of the Respondent University of not considering the Petitioner''s case for the said medal and/or rejecting his case on the ground of clearing the examination at 2nd attempt is not justified or sustainable in light of the provision under the said provision 230 also. The impugned decision and action is not justified and sustainable even on conjoint reading of the two provisions i.e. Ordinance No. 124 and the provision No. 230.

Besides this, the concept of more meritorious student is invoked and applied by the learned Single Judge. In this context, it is appropriate to note that there was no material, except the fact that the Petitioner passed the final examination of the course in question at 2nd attempt, available before the learned Single Judge in light of which, or on the strength of which, the process of comparison or comparative analysis of merits between the two students could have been undertaken.

18.1 If one examines the marks obtained by the two students then it comes out that the Petitioner got more number of marks than the Respondent No. 3 inasmuch as he was awarded 601 numbers out of 1000 while Respondent No. 3 was awarded 589 numbers out of 1000. The entrance examination was also cleared by the Petitioner at 1st attempt whereas the Respondent No. 3, though appeared in the entrance examination in 2005, could clear it in 2006. This factual assertion made by Counsel of Petitioner is not disputed on behalf of Respondent No. 3. Thus, on that count also, the Petitioner stands one step ahead of the Respondent No. 3. The only negative point available on record before the learned Single Judge against the Petitioner was that he passed the examination at 2nd attempt.

18.2 Since the learned Single Judge has invoked and applied the concept of more meritorious student, the Petitioner - Appellant has now, in Appeal, placed on record, his academic career graph, which reads thus:

i) All examinations passed in first attempt & in first division only.

ii) Primary examination certificate 1987. First division, 89% marks. Distinction in all five prescribed subjects.

iii) Divisional middle examination, 1990, First Division, 83% marks, Distinction in 5 subjects.

iv) M.P. Education Board, High School Examination 1992. First Division 75.2% marks. Distinction in two subjects.

v) Higher Secondary School Certificate (10+2), 1994, First Division, Distinction in four subjects.

vi) MBBS examination DAVV Indore, 2000, First Division, 63.8% marks. Certificate of Merit given by the University for passing in first division and securing third position in merit in the University.

vii) M.D. Medicine DAVV Indore, 2004. First attempt. The University does not allot marks in MD/MS examinations.

viii) Admission to DM (Cardiology) Course was through All India Open Examinations, on merit and in the first attempt.

18.3 Undisputedly, the aforesaid details regarding the academic career graph of Respondent No. 3 was not available before the learned Single Judge and now before us, similar details i.e. the career graph of Respondent No. 3 are not available.

Differently put, any details regarding academic career of the two students, except the fact that the Petitioner cleared the final examination at 2nd attempt which may enable or assist in, comparative analysis of merits of two students, were not available before the learned Single Judge and that therefore, it was neither justified to record negative remark about the merits of the Petitioner nor to conclude and hold, without having regard to the entire graph of the academic career of both the students, that the Respondent No. 3 is more meritorious than the Petitioner. In the facts of the case, we have to hold that the said conclusion or the observation was unwarranted and is not based on sufficient details.

On the overall consideration of all the facts of the case including the two aspects which the University urged before the learned Single Judge, the decision of the Respondent University does not appear sustainable, particularly in light of the provisions under Ordinance No. 124 and/or provision No. 230.

From the side of the Petitioner, a contention has been raised that there is yet another perspective from which the matter can be examined.

20.1 It has been contended that originally, more particularly when the terms of the donation came to be settled between the University and the doner, the examinations of the degree course were being held in March/April and thereafter in October/November. Under the circumstances, the student who would appear in examination held in March/April would get a chance to appear in the repeat examination in October/November i.e. not only in the same academic year but also in the same calender year, however, when the change in the system came to be introduced, the exams are now held in July and January.

20.2 Thus, the students who appear but fail in the examination held in July, would get chance to appear in repeat examinations that may be held in January which would be next calendar year. The Petitioner appeared in examination held in July - 2008 and upon having been declared "fail", he could appear in the examination which came to be held in January-2009. The Respondent No. 3 also appeared in July-2009. Consequently, though the Petitioner and the Respondent No. 3 appeared at different examinations i.e. January-2009 and July-2009 and though the Petitioner is of 2005-2008 batch, while Respondent No. 3 is of 2006-2009 batch, the University, for the purpose of deciding the eligibility for Gold Medal, considered both the students of same year.

20.3 It deserves to be noted that when inquired, the Respondent University informed the court that examination held in January is considered as "repeat examination". Thus, the examination held in January 2009 was "repeat examination" of July-2008 examination (i.e. for the students who appeared in the July-2008 examination).

20.4 In this context, it would be appropriate to recall that the said provision No. 230 provides that the said gold medal shall be awarded every year. However, in present case, any Gold Medal for the year 2008 has not been awarded. In that background it has been contended that in the peculiar set of facts and circumstances, the Respondent University could have, in light of the term "every year" in the said provision 230, considered the Petitioner as student of year 2008 and the Respondent No. 3 could have been considered as a student of year 2009 i.e. the Petitioner as the student of academic year 2008-2009 and the Respondent No. 3 as the student of academic year 2009-2010, and accordingly, the decision about awarding the said medal could have been taken. It appears that the Respondent university has not considered the issue from the aforesaid perspective.

The University, as claimed by it in the earlier affidavit, took the decision on the ground that the Petitioner had not cleared the examination within prescribed minimum period. The said stand of the Respondent University is, in light of the provision under Ordinance No. 124, not sustainable.

21.1 Then, the University next contended that the Petitioner being a repeater and having passed at 2nd attempt, was not entitled for the said medal.

21.2 As noticed above, neither Ordinance No. 124 nor the said provision No. 230 contain any restriction or prohibition in view of which a student who clears the examination at 2nd attempt can be considered as ineligible nor do the said two provisions prescribe or recognize "number of attempts" as the eligibility criterion or the scale or standard or measure for comparative analysis and the only condition or criterion or standard/scale or measure for determining the eligibility, as per the provision, is "number of marks". Thus, the said stand of the Respondent University is also, as noted earlier, not sustainable.

The Respondent University ought to have taken the aforesaid aspects into consideration before taking the final decision or awarding the said gold medal i.e. for determining the eligible student for the said gold medal.

At this stage, we may refer to the two decisions relied upon by the learned Counsel for the Respondent University. In the case between Principal, Patna College, Patna (supra), the Apex Court has observed that where the question involved is one of interpreting regulation framed by the academic council of university, the court should be reluctant to intervene if the regulation is capable of two constructions. In present case, the terms and conditions of donation accepted by the University, are in the nature of agreement/contract between the University and the doner and that therefore, are not capable of being treated as rules framed by the university or the academic council i.e. are not in the nature of or do not have the status of statutory rules. So far as the ordinance No. 124 is concerned, in the facts of present case, it cannot be said that two interpretations were possible or available and that therefore the said decision would not help the Respondent University, in the facts of present case. In the second case relied by the counsel of the University i.e. the decision in Bhusan Uttam Khare (supra) the subject matter in the cited case was about re-evaluation of the results. In present case, this Court has already declined to interfere with the University''s decision regarding re-evaluation of result of the Petitioner and that therefore, at this stage, and in respect of the decision to award the said medal, the cited judgment would not assist the Respondent University.

As upshot of the above discussion, we are of the view that the Respondent University needs to reconsider its decision in light of the foregoing discussion.

24.1 We are conscious of the limitations which the court would exercise in the matters pertaining to academics and that therefore, we would not go farther than the aforesaid observation and we would not substitute the University''s decision with the view which we consider appropriate. Instead, we consider it appropriate to remit the matter and leave it to the decision of the Respondent University to reconsider the case and take decision, as may be considered appropriate, by taking into consideration the discussion) with reference to the two provisions), in present order.

24.2 For the said purpose, it is necessary to set aside the decision of the Respondent University in the matter of awarding the said medal and to remit the matter to the University for appropriate fresh decision. Thus the impugned decision is hereby set aside. The judgment and order of learned Single Judge, therefore would not survive. The matter is remanded to the Respondent university for fresh decision. The fresh decision may be taken by the competent authority of the Respondent University as early as possible and preferably within 4 (four) months.

With the aforesaid observations and clarifications, the appeal is disposed of. No costs.