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2003 Supreme(Guj) 436
Gujarat High Court
Judgename :J.N.PATEL
ISHWARBHAI SANKARBHAI RABARI - Appellant
Versus
GUJARAT UNIVERSITY - Respondent
S.C.A. 10370 of 2002
Decided On : 08/05/2003
Headnote:(a) Constitution of India, 1950 - Arts. 14 & 226 - Education - Grant of mark-sheet & decree - When petitioner has cleared all the subjects of IIIrd L.L.B. including Monsoon & Winter Semester, issuance of the mark-sheet showing the petitioner as `fail is arbitrary & capricious - Insistence of the University for the petitioner to clear the subject of Monsoon Semester of IIIrd L.L.B. (New Course) is contrary to the stand and circular No. 17 of the University - Necessary directions consequently issued to university.
In view of the facts situation of the case, it is required to be taken note of that there is no dispute on the point that the petitioner has passed the Monsoon Semester of IIIrd LL.B. (Old Course) and there is also no dispute on the point that the petitioner has successfully cleared the subjects of Winter Semester of IIIrd LL.B. (Old Course), whereas the university gives the title to such as IIIrd LL.B. (New Course). Admittedly, the petitioner did not file any application form for appearing in the subjects of Monsoon Semester of IIIrd LL.B. either of the new course or of the old course for appearing in April-2002/May 2002. It was, as such, not even required for the petitioner to submit any application because when he had already passed in all the subjects of Monsoon Semester of IIIrd LL.B. (Old Course), there was no occasion for the petitioner for appearing again in the subjects of Monsoon Semester, which he has passed in IIIrd LL.B. (Old Course).
[Para 6]
It does appear that the petitioner did pass in all the subjects of the Monsoon Semester of IIIrd LL.B. (Old Course). Similarly, the petitioner has successfully cleared in all the subjects of Winter Semester of IIIrd LL.B. (Old Course). Therefore, when the petitioner has already cleaned all the subjects of IIIrd LL.B., including Monsoon and Winter Semester, in my view, issuance of the marksheet showing the petitioner as `fail and non-issuance of the marksheet showing the petitioner as `pass is arbitrary and capricious. As observed earlier, it is also perverse to the record of the case.
[ Para 9]
(b) Bar Council of India - Directions - Need to assertain contents exactly and application - When any curricular course or activity or syllabus is changed in the normal circumstances it should not be interpreted to frustrate the right or effect any situation which has conferred any benefit to the students of successfully passing in the examination - It would apply to the students who have yet not passed and have also yet to apply for such course.
In the affidavit-in-reply, there is only a reference of the directions of the Bar Council of India and no details are mentioned as to how and in what manner, those directions are to be made applicable and what are the exact directions. It is not borne out from the record that the Bar Council of India has prohibited the attempt to appear to the students, who are already undergoing LL.B. ongoing course. Even if there is any direction, question is required to be considered that whether it would apply prospectively to the new students or to the existing students, who are ongoing their studies. Normal circumstances would be that when any curricular course or activity or syllabus is charged, it would not be changed in such a manner which would frustrate the right of the situation which has conferred any benefit to the students of successfully passing in the said examination and, therefore, even when the university had to act upon the directives of the Bar Council of India, it would apply to the students, who have yet not passed the examination and who have also yet to apply for such course.
[Para 10]
( 1 ) RULE. Mr. Mitul Shelat, learned Counsel for respondent no. 1, and Ms. Kreena Thakkar for Mr. Y. S. Lakhani, learned Counsel for respondent no. 2, waive service of Notice of Rule and with the consent of the parties, the matter is taken up for final hearing today.
( 2 ) THE only question which is required to be considered in this petition is whether the stand taken by the University while considering the matter for granting of the marksheet and consequently, the degree, is absurd and perverse.
( 3 ) THE short facts of the case are that the petitioner appeared in IIIrd LL. B. Monsoon Semester (Old Course) Examination in May-1987 and he was declared as fail. The petitioner, thereafter, appeared in December-1991 in the very IIIrd LL. B. Monsoon Semester (Old Course) Examination and cleared all subjects of the IIIrd LL. B. Monsoon Semester (Old Course ). The petitioner had to clear two subjects of Winter Semester of IIIrd LL. B. (Old Course) and, therefore, he had filled up the form for appearing in May-1999. However, due to unavoidable circumstances, he remained absent and he was declared absent. Thereafter, the petitioner also made an attempt in May-2001 to appear in Winter Semester of IIIrd LL. B. (Old Course), but he could not pass. The petitioner, in March-2002, applied for appearing in the two subject of Winter Semester of IIIrd LL. B. (Old Course ). The application was accepted for such purpose by the College Authorities and the petitioner was also allowed to appear in the examination. It is the case of the petitioner that the petitioner has appeared in the said two subjects of the Winter Semester of IIIrd LL. B. as per the Old Course and the petitioner has also answered such questions pertaining to the Old Course. The University has issued the marksheet for both the aforesaid subjects wherein in the subject of Drafting, etc. , the petitioner has scored 60 marks out of 100 and in the subject of English for Lawyers, the petitioner has scored 33 marks, which are passing marks, out of 100. Therefore, in both the subjects, the petitioner has passed. As per the petitioner, so far as the earlier subjects of the Monsoon Semester of IIIrd LL. B (Old Course) are concerned, the petitioner has passed in all three subjects and a copy of the marksheet is produced for such purpose on page-12 at Annexure-A. Therefore, the case of the petitioner is that since the petitioner has passed all subjects of the Monsoon Semester and the Winter Semester of IIIrd LL. B. (Old Course), the petitioner ought to have been declared as passed and the marksheet also ought to have been shown as that of pass. However, the result shown in the marksheet is shown as `failed and, therefore, this petition.
( 4 ) HEARD Mr. M. J. Shelat for Mr. G. M. Joshi, learned Counsel for the petitioner, Mr. Mitul Shelat, learned Counsel for the University, and Ms. Kreena Thakkar, learned Counsel for the College Authorities.
( 5 ) IT is the stand of the University that with a view to protect the term of the students, who appeared in the examination of LL. B. (Old Course), but, failed, as a last opportunity, they were allowed to appear in the examination of April-2002. But, it is further the case of the University that such students had to appear under the new syllabus and the circular for such purpose was also issued by the University on 13/03/2002. Perusal of the said circular shows that it has been mentioned that the opportunity given of IIIrd LL. B. (Old Course) is over, however, those students, whose both the terms of old course are granted or one is granted out of two, have to appear in the examination as per the new syllabus. It is further mentioned that for the IIIrd LL. B. (Old Course), it is decided to give one additional opportunity in April-2002 and the Director of Examination has instructed all College Authorities to notify the same on the Notice Board. It is the case of the College, respondent no. 2 herein, that the petitioner belonged to IIIrd L
