Honble JAIN, J.—This special appeal u/s. 18 of the Rajasthan High Court Ordinance has been filed by Ashok Kumar Aseri against the order of learned Single Judge dt. 7.4.93 dismissing his writ petition.

(2) The facts which are necessary for the disposal of this special appeal are that the petitioner-appellant was admitted in B.E. 1st year course in the year 1989 in the Faculty of Engineering of the University of Jodhpur now known as J.N.V. University (hereinafter referred to as the University). He failed in eight theory papers and one sessional paper of Humanities in the year 1990. The petitioner-appellant again appeared in the year 1991 but was declared unsuccessful in four theory papers and two sessional papers. In the meantime on the representation of of some other students of S.C./S.T. who were declared unsuccessful in five units, a Committee was constituted by the Vice Chancellor whose recommendations were accepted by the respondents and in pursuance of which Raj Kumar Meena and Rajesh Kumar Chawal were given admission in the next higher class. The petitioner-appellant also made a representation to allow him to keep term in the next higher class but his request was not accepted. Dissatisfied with the response of the University, the petitioner-appellant preferred a writ petition on the ground of discrimination. The learned Single Judge of this Court vide its order dt. 18.2.92 issued notice to show cause. The respondent filed reply. The learned Single Judge after hearing both the parties and considering the material on record dismissed the writ petition holding that the case of the petitioner is not similar with that of the two students viz. Raj Kumar Meena and Rajesh Kumar Chawal. He further held that the petitioner could not be promoted to next higher class. Aggrieved with the order of the learned Single Judge, the petitioner has filed this special appeal.

(3) This special appeal has been filed on 13.4.93. This Court vide its order dt. 13.4.93 issued notice to show cause, in pursuance of which Mr. R.L. Jangid appeared. It has come up before us and as agreed by the counsel for the parties, the case is heard finally.

(4) Mr. Choudhary, learned counsel for the petitioner-appellant has submitted that the learned Single Judge has erred in holding that there is no discrimination. He has submitted that the petitioner has wrongly appeared in the year 1990-91 in all the theory papers as well as sessional. He was required to appear only in theory papers. He argued that in view of the stay order if the petitioner is declared successful he may be given admission in next Higher class while giving benefit of ATKT under Cond. 10(a). In Support of this arguments he placed reliance on A. Sudha vs. University of Mysore (1), Ashok Chand Singhvi Vs. University of Jodhpur & Ors. (2) and Prahalad Kumar Vs. University of Raj. (3).

(5) Mr. Jangid, learned counsel for the University has submitted that the learned Single Judge has rightly come to the conclusion that the case of the petitioner is not similar with that of the two other students. He has submitted that the appellant cant now contend that he appeared in all the theory papers as well as sessional due to mistake as the same was not raised before the learned single Judge and further that he cannot claim any right on the basis of stay order. He has relied on Smt. Manju Lata Vs. Hitkari Cooperative Shiksha Mahila Mahavidhyalaya (4) and Dr. H.C. Chaturvedi Vs. State (5).

(6) We have heard learned counsel for the parties and perused the material on record as well as the case law.

(7) The relevant Condition 10(a) prior to its amendment reads as below:–

"10(a) If a candidate fails in not more than four Units in the Main Examination, and if he secures an aggregate of 45 per cent marks in the grand total, he shall be allowed to keep term in the next higher class. For the purpose of this Clause each theory paper and each Practical and Sessional shall be counted as one unit."

(8) Vide Notification dated Marc

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