Vinay Mertia vs University of Jodhpur

B.R. Arora, J.—The petitioner, who was a student of LL.B. Part II Year in the University of Jodhpur, during the academic year 1989- 90 appear in ll-year LL.B. examination. He obtained 271 marks in all and got only 10 marks in Paper-V pertaining to the subject "Jurisprudence and Comparative Law" and was declared eligible for supplementary examination in Paper V. The petitioner appeared in the supplementary examination and secured 40 marks and, therefore, he was declared ''failed''. According to the petitioner, the supplementary examination of LL.B. Part II alongwith other examinations is governed by Ordinance 174 of the Ordinance, according to which a candidate to be declared passed, has to obtain only 36% marks and required to secure 48% marks in aggregate. The case of the petitioner further is that the Course Committee, in its meeting held on March 13, 1989, vide item No. 11, resolved that if a candidate has obtained 36% marks in the supplementary examination and after adding these marks if the total aggregate becomes 48% then the candidate may be declared successful. The Courses Committee further resolved that necessary amendment may be made in the Ordinance. The Committee, also, resolved that this change may be included in the ll-year Examination of Law of Three-years Degree Course for the academic session 1989-90, also. This resolution of the Course Committee was approved by the Academic Council in its meeting held on April 20, 1989, and by the Syndicate in its meeting held on August 18,1989, and, therefore, in view of the recommendation of these three Academic bodies, the amendment in the Ordinance 174 was made and the exception clause, relating to the L.L.B. student, was deleted. The case of the petitioner further is that in the Syllabus of the University, relating to Three-year Degree Course in Law, for the year 1991 an amendment has been made and the students appearing in the supplementary examination of 1991 in the Faculty of Law are required to obtain 36% marks in the subject concerned in the supplementary examination and 48% marks in aggregate in all the six papers. The petitioner, therefore, prayed that the same benefit may be given to the petitioner, also.

The case of the University of Jodhpur, on the other hand, is that the case of the petitioner is covered by the ordinance 361 of the Ordinance and the petitioner is required to obtain 48% marks in the supplementary examination and not 36% marks and as the petitioner has not obtained 48% marks in the supplementary examination, therefore, he was declared ''failed''. Regarding the condition of obtaining 36% marks in the Syllabus of 1991, it is stated that the Dean, Faculty of Law was informed by the University that no amendment in the Ordinance has been made and the candidates of the Three Year Degree Course in Law examinations are required to obtain 48% marks in the supplementary examination and the ordinance 361 governs the supplementary examinations of Law Faculty and, therefore, the Dean of the Faculty of Law was asked to clarify the position as to how the provision in the syllabus has been printed without effecting the change in the Ordinance. The case of the University is that even in the examinations of 1991, no such amendment in the ordinance has been made.

I have considered the rival submissions made by the learned Counsel for the parties.

The question'', which requires consideration in the present case, is : by which ordinance the case of the supplementary examination of Law-students in the year 1 989-90 is to be governed and whether the law candidates are required only 36% marks to be declared successful in the supplementary examination or they are required to obtain 48% marks in the supplementary examination, also.

Ordinance 174, prior to its amendment on August 9, 1989, dealt with the supplementary examinations in the Pre-University Course, l-year T.D.C., ll-year T.D.C. and Final Year T.D.C. Part I or Part II LL.B. (previous and/or final) examinations and the candidates were required to obtain the minimum pass-marks as prescribed for the examination in the paper of the subject in which they appeared in the supplementary examination, except in the case of LL.B. examinations where 48% marks will be the minimum pass marks. Ordinance 174, prior to amendment, dealt with all the examinations, including LL.B. examinations under the old scheme. But after the amendment of the ordinance, the scope of ordinance 174 has been limited only to I, II and III year Degree courses under the new and old scheme in the Faculties of Arts, Science and Commerce and the remaining courses, namely, P.U.C., T.D.C. Part I and II of LL.B. Courses, which are not in existence now, have been excluded and the exception clause, which was made applicable so far LL.B. Previous and Final examinations are concerned, has, also, been deleted. Amended ordinance 174, on which reliance has been placed by the learned Counsel for the petitioner, is re-produced as under:

All the candidates who are eligible to appear in the supplementary examination in First Year TDC, Second year TDC and Final Year TDC old course or new course in the Faculties of Arts, Science and Commerce shall be declared to have passed the examination if they secure the minimum pass marks as prescribed in the paper/subject in which they appear at the supplementary examination.

By reading the ordinance 1 74 old and new, it is, thus, clear that this ordinance 174 never related to the Three Year Degree Course Examinations in the Faculty of Law and so far as the Law examinations under the old scheme, which related only to Two Years Degree Course in Law, was covered by the Ordinance, but so far as the Three Year Degree Course in the Faculty of Law is concerned, the same is governed by some other provisions and not by the provisions of the ordinance 174.

Now, I have to see which provision governs the examination of Law in the Three Year Degree Course. A separate Chapter has been included in the Hand Book of the University of Jodhpur and ordinances 359 to 368 (repealed) contain the ordinances for the admission of the students to Three Year Degree Course in the Faculty of Law. Ordinance 359 deals with the Scheme of the Examination and Ordinances 360 to 366 deal with the Supplementary Examinations in Law. According to ordinance 361, in order to be declared successful at the supplementary examination, a candidate must obtain at least 48% marks in the subject and his marks secured in the sessional tutorial work shall be carried over and shall count towards the aggregate of 48%. According to this ordinance, a candidate who appears in the supplementary examination in law has to obtain 48% marks in the supplementary examination. There is no other provision in the Hand Book, which deals with the examination in law. Merely because the Ordinance 361 provides that the marks secured in the tutorial work shall be counted towards 48% aggregate marks and that scheme has not been introduce or is not in existence, therefore, this ordinance will not make it inapplicable to the supplementary examination in Law. The contention of the learned Counsel for the petitioner in this regard is thus devoid of any force. Whether a particular part of the scheme has been introduced or not, that will not make the other provisions of law non-aplicable to the examination. The ordinances 360 to 366 of the Ordinances of the University of Jodhpur, specifically deal with the supplementary examinations in law and as per these provisions, the candidate, in order to be declared successful in the examination, has to obtain 48% marks in aggregate and as the petitioner got only 40% marks in the supplementary examination, he was rightly declared ''failed'' in the ll-year LL.B. examination.

The next contention, raised by the learned Counsel for the petitioner, is that in the year 1991, the candidates are required to obtain only 36% marks in the supplementary examination of law papers and, therefore, the petitioner should, also, be given the benefit of this provision and he should be declared "passed'' on the basis of this amended provision. In support of its case, the learned Counsel for the petitioner has placed reliance over : Vishundas Hundumal and Others Vs. State of Madhya Pradesh and Others, , Bhanwar Lal and others Versus Municipal Board, Nagaur, and others 1987(1) R.L.R. 601 and Ramdeo Versus the State of Rajasthan and others R.LR. 1990(1)406. The learned Counsel for the University, on the other hand, has contested this position and states that no amendment has been made in the ordinance and, therefore, the scheme has wrongly been published in the Syllabus and the same is not applicable qua the petitioner. It is not necessary to go into this controversy : whether the ordinance has been amended or not and whether any relaxation in the marks in supplementary examination has been made for the year 1991 or not, because it is an admitted position that so far as the examination of 1990 is concerned, no such amendment was made in the Ordinance. The Courses Committee resolved to amend the provisions regarding obtaining 36% marks in the supplementary examinations which were approved and resolved by the Academic Council as well by the Syndicate. But these recommendations or resolution never became law and no such amendment was made in the Ordinance. The Ordinance under the University of Jodhpur Act can be made by the Syndicate, but the ordinance cannot take effect until and unless it is approved by the Chancellor after considering the view of the Syndicate. In the present case, nothing has been brought on record, from which it could be revealed that the View of the Syndicate was taken into consideration or the Chancellor approved the recommendations made by the Syndicate. Thus, the recommendations made by the Syndicate merely remain the recommendations and do not take the form or shape of law as no Ordinance was made in pursuance of these recommendations. In this view of the matter, the petitioner cannot claim the benefit of the law, which are sought to be made, for the year 1989-90, as at that time the Ordinance, which was prevalent relating to the supplementary examinations of ll-year LL.B. is Ordinance 361 and according to which the candidates of law are/were required to obtain 48% marks.

So far as the law propounded in the judgments cited by the learned Counsel for the petitioner, is concerned, there is no dispute and no discrimination can be made with a person similarly situated. In the present case, no such discrimination has been made with respect to the candidates who appeared in the supplementary examination in the year 1990. The petitioner''s case is that the University has discriminated the case of the petitioner with those candidates who appeared in the examinations of 1991. Both do not form a same class and it is for the authorities concerned to make or amend the law applicable in the prevailing circumstances. If a law has been made from a particular year then no retrospective effect can be given to the same unless it is so intendes and the candidates, who appeared in the year prior to it cannot be given benefit thereto. By allowing the petitioner the benefit of 991, if there is any, though disputed by the respondents, it will amount to giving benefit to all the persons who appeared in the earlier years, also, which was never the intention of the authorities. The contention, raised by the learned Counsel for the petitioner, on this point, thus, is devoid of any force.

Lastly, it is contended by the learned Counsel for the petitioner that the petitioner was allowed by the order of this Court to appear in the LL.B. Final Year Examination and he completed the Ill-year Course and thereafter appeared in the LL.B. Part III examination and, therefore, in the facts and circumstances or the case, his result of this examination may be declared. In support of its case, the learned Counsel for the petitioner has placed reliance over the judgment of this Court in : Manoj Sancheti v. the Board of Secondary Education, Rajasthan, Ajmer S.B. Civil Writ Petition No. 1 572/1990- decided on March 11, 1991. I have considered this aspect of the case, also. A candidate has to pass ll-year LL.B. examination for appearing in LL.B. Part III examination. When a candidate, who has not cleared LL.B. Part II examination then he cannot be permitted to persue the study for the LLB. Part III examination and to appear in LL.B. Part III examination, conducted by the Law Faculty. As the petitioner could not secure the requisite pass- marks in the supplementary examination of LL.B. Part II which according to ordinance 361 the petitioner was required to obtain, therefore, he was declared ''failed'' and as such, now, the result of the petitioner for the LL.B. Part III examination, in which he was allowed to appear by this Court , cannot be declared. The petitioner is entitled to persue the study for LL.B. Part III examination only after qualifying the LL.B. Part II examination.

In this view of the matter, I do not find any merit in this writ petition and the same is hereby dismissed.