Rahul Kapoor vs Guru Ravidas Ayurved University

Sanjay Kishan Kaul, C.J.—The appellant got admission in the BAMS (Bachelor of Ayurvedic Medicine and Surgery) Course in respondent No. 2-College in turn affiliated to respondent No. 1-University. The course is split into three Profs of = years each with one year internship. Thus, the total period of the course is 5= years. The 1st Prof. of the BAMS Course is stated to consist of six subjects having 10 papers for which the examination was conducted in November/December 2011, where the appellant could not clear any of the papers. The ostensible reason given by the appellant is that his father was not keeping good health and was suffering from Coronary Artery Disease coupled with Diabetes Mellitus. Father of the appellant was admitted in the hospital in Ludhiana on 18.11.2011 and underwent by-pass surgery on 19.11.2011., being finally discharged from hospital on 29.11.2011. The appellant, thus, took his chances to re-appear in the examination in May/June 2012 and November/December 2012 but could not clear any of the subjects. He finally appeared in the 3rd and final re-appearance chance in all six subjects in May/June 2013 and managed to clear four subjects but could not clear two subjects i.e. Sanskrit and Ayurved Ka Itihas. The net result is that two subjects are outstanding qua the appellant and he has managed to clear seven papers out of ten papers, resultant in his declaration of result as "failed".

The appellant alleges that he had attended the classes of BAMS 2nd Prof. but was not allowed to appear in the annual examination of BAMS 2nd Prof. held in May/June 2013. This apparently was so as the appellant had failed to clear 1st Prof. course only thereafter the occasion would arise for the appellant to pursue the 2nd Prof.

The appellant sought a mercy chance to appear in the remaining two subjects (three papers) but was informed on 29.11.2013 that his request had been rejected. The appellant, thus, filed Civil Writ Petition No. 26944 of 2013 before this Court seeking to raise the case on a plea of disparity with another student Jaspreet Kaur, who had also not cleared BAMS 1st Prof. She is stated to have cleared only one subject and was given a mercy chance to clear the remaining papers. Another illustration given is of Amanpreet Kaur, who was given two mercy chances. This information was procured by the appellant under the Right to Information Act, 2005.

The respondents in their stand before the learned Single Judge admitted that as per the Ordinance the Vice-Chancellor of the University can grant mercy chance (s) to the students. The relevant clause 9 (b) is reproduced as under:

First Professional Examination (shall be held on such dates so that the examination is completed by the end of one year and six months).

(i) (a) The 1st Professional period shall be 18 months duration and the examination shall ordinarily be completed by the end of December. The supplementary examination of 1st Professional shall be held every six months.

(b) Any candidate who fails to clear all the subjects of First Professional examination in four consecutive attempts including the first attempt in which he/she was eligible to appear shall not be allowed to continue his/her studies in BAMS course. However, a mercy chance may be allowed by the Vice-Chancellor at his discretion.

(C) Any candidate who fails in one or more subjects in his/her first attempt shall be permitted to attend classes in Second Professional BAMS Course but he/she shall not be entitled to appear in 2nd Prof. Examination unless he has completed 18 months of study in 2nd Profession and has passed the first professional examination at least 6 months before.

A reading of the aforesaid clause, thus, shows that the scheme of the First Professional Examination facilitates attendance of classes in the 2nd Professional BAMS Course, even where the first Prof. is not cleared without being entitled to appear in the 2nd Prof. Examination unless the 1st Prof. Examination is cleared.

It is the case of the appellant that there is no reason why the appellant should not have been granted the mercy chance by the Vice-Chancellor in terms of Clause 9(b) and the discretion exercised against him was not proper.

The respondents in their stand before the learned Single Judge, have however, submitted that the mercy chance is allowed to only those students who have to re-appear in the one subject of their respective course but since the appellant was required to appear in two subjects, his request for mercy chance was rejected by the University which cannot be claimed as a matter of right. The explanation for an exception in case of Jaspreet Kaur is stated to be a factum of her physical handicap having left leg polio for which she was under treatment and her requirement of an attendant for day to day work. In the case of Amanpreet Kaur, while such a chance was given, it was stated to be by the erstwhile University to which respondent No. 2-College was affiliated prior to the affiliation with respondent No. 1-University. In Civil Writ Petition No. 3870 of 2013, interim orders enured for the benefit of the petitioner therein but that petition is yet to be disposed of. These were three illustrations given by the appellant.

Learned Single Judge, in terms of the impugned order dated 16.12.2013, opined that in view of the facts of the three cases cited, they cannot be treated as precedent i.e. Jaspreet Kaur was a special case of a handicapped person, Amanpreet Kaur''s case was dealt with by another affiliate University (though regulations were the same) and Civil Writ Petition No. 3870 of 2013 was concerned only with an interim order. The Writ petition was, thus, dismissed.

We were persuaded to issue notice in the appeal on account of the limited aspect arising from Clause 9(b) as the clause did not place any restriction on the number of papers, the candidate ought to have cleared, before he gets a mercy chance. It was noticed before us that 2= years of appellant''s education would be lost in the process. As on date, it would be a period of 3 = years.

In view of the aforesaid circumstances, we had called upon learned counsel for the respondents on the last date of hearing i.e. 04.03.2014 to obtain necessary instructions whether in the context of the provision, a statute as it stands, the appellant may be given a mercy chance with no further indulgence as his performance in the mercy chance would either advance him further or seal his fate. Learned counsel for the respondents states that the University has declined to give last indulgence to the appellant and thus we proceed to judgment.

On consideration of the matter, we are of the view that Clause 9(b) of the statute vests mercy chance to be given by the Vice-Chancellor "at his discretion". Such discretion has to be exercised reasonably and without discrimination. The only reason stated for nonexercise of discretion in favour of the appellant is that as a matter of practice such mercy chance is not given to re-appear in two subjects. However, simultaneously, it cannot be disputed by the respondents that this condition is neither a part of the ordinance nor so sacrosanct for the affiliate University as exceptions have been made as referred to aforesaid i.e. in case of a handicap person and in a similar situation on the basis of some ordinance by the earlier affiliate University. The initial cause for the appellant not to clear the examination is quite obvious on account of the serious health problem that was faced by his father and because of that he lost first chance. Unfortunately, the appellant was not successful even on two subsequent chances but in four chances managed to clear seven papers out of ten papers and four subjects out of the six subjects. Of course, it is not for this Court to delve into the relevancy of the subjects but the fact remains that what the appellant has been unable to clear, while pursuing a course in Ayurvedic Medicines, are the subjects of Sanskrit and the History of Ayurveda. The nature of subjects not cleared, itself, could have been a reason to exercise the discretion in favour of the appellant.

It is not in dispute that if the appellant does not clear the remaining three papers in the mercy chance, he has no future. That is for him and his fate. We also cannot lose sight of the fact that pursuing education and its costs is not an easy task in our country. The appellant has spent 2 = years in his education and another year since then. It would be a deadloss of 3= years. Should not in such a case the Vice-Chancellor have exercised the discretion for the mercy chance? In our view a more sympathetic attitude was expected, the power having been vested with the Vice-Chancellor. It is a case where there has been failure on the part of the Vice-Chancellor to exercise the discretion of giving mercy chance to the appellant which the appellant is entitled in the given facts and circumstances of the case discussed aforesaid. We, thus set aside the impugned order dated 16.12.2013 passed by the learned Single Judge with a direction that the appellant should be granted the last mercy chance in terms of Clause 9(b) of the Ordinance and the rest is his fate.

The appeal is allowed in the aforesaid terms leaving the parties to bear their own costs.