2006(2) ALL MR 679
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.D. SINHA AND S.T. KHARCHE, JJ.

Mirza Fuwaz Baig S/O Muqaddar Baig Vs. The Principal, Rashtrasant Tukdoji Maharaj Nagpur University's Dr. Babasaheb Ambedkar College Of Law (Main Branch), Nagpur & Ors.

Writ Petition No.4719 of 2005

5th October, 2005

Petitioner Counsel: Shri. Z.A. HAQ,FIRDOZ MIRZA,M. I. KHAN
Respondent Counsel: Ms. T. KHAN

Rashtrasant Tukdoji Maharaj Nagpur University, Clause 17 of Direction 10 of 2003 - Admission to educational insititute - Cancellation - Ground that he was not entitled to continue LL.B course since he has not passed and/or failed to present at the LL.B. First Semester examination in five consecutive examinations including the first - Validity - Petitioner appearing for the first semester examination only twice and thereafter not submitting any examination form - Hence, petitioner cannot be said to have been an examinee for the said period in absence of his neither submitting the application nor being issued admission card - Cancellation of petitioner's admission improper. 1996(2) Mh.L.J. 627 - Relied. (Para 9)

Cases Cited:
Rajkumar Singh Vs. Amravati University, 1996(2) Mh.LJ. 627 [Para 5,7]


JUDGMENT

D. D. SINHA, J.:- Rule. Rule made returnable forthwith by consent of parties.

2. Heard Mr. Haq, learned counsel, for the petitioner and Ms. Khan, learned counsel, for the respondents.

3. The counsel for the petitioner states that the petitioner was given admission in the first year law course at S. P. College of Law, Chandrapur for the Academic year 2002-03. The petitioner appeared for the first semester examination (winter) of 2002, however failed in the said examination and again appeared for the first semester examination in summer 2003 and again failed. It is contended that thereafter the petitioner did not submit any examination form and in the year 2005 has applied for admission at Dr. Ambedkar Law College, Nagpur, for first year LL.B. Course and was granted admission by the Law College and the petitioner paid the fees on 12-7-2005.

4. Mr. Haq, learned counsel, states that the Principal of the College issued the impugned communication dated 19-8-2005 and the petitioner was informed that in view of clause 17 of Direction No.10 of 2003, the petitioner was not entitled to continue the LL.B. course since he did not pass or failed to present himself at the LL.B. First semester examination in five consecutive examinations inclusive of the first and, therefore, cancelled the admission granted by the Dr. Ambedkar Law College.

5. The learned counsel for the petitioner states that the controversy in issue is no more res integra and is concluded by the decision of this Court in the case of Rajkumar Singh Vs. Amravati University, 1996(2) Mh.LJ. 627. The Division Bench in the said judgment has considered Ordinance 55 and clause 16 of Amravati University which is pari materia to clause 17 of Direction 10 of 2003, and partly allowed the said petition and gave a declaration in the said writ petition that the petitioner has not exhausted four attempts provided by clause 16 of Ordinance 55 of the Amravati University. It is contended that in the instant case also, the petitioner cannot be termed as "examinee" mentioned in clause 17 in the light of the above referred decision and in absence thereof the contingencies mentioned in clause 17 are not attracted. Consequently, the impugned communication issued by the University cannot be sustained in law.

6. The learned counsel for respondents 1 and 2 does not dispute the factual and legal aspect of the matter including the decision referred to hereinabove. It is contended that in the instant case since the petitioner failed to present himself at LL.B. First semester examination after summer 2003, though he was entitled to appear at LL.B. First semester examination in five consecutive examinations and having failed to do so, the impugned communication is issued by the University.

7. We have given our anxious thought to the above referred contentions canvassed by the respective counsel. Perused clause 17 of Direction No.10 of 2003 as well as the judgment of this Court cited by the counsel for the petitioner. In Rajkumar Singh's case (cited supra), clause 16 of Ordinance 55 of Amravati University reads as under :

"An examinee who does not pass or fails to present himself at (Prathama Aayu : Shalya Vigyan Snatak) (First M.B.B.S.) examination in the four consecutive examinations inclusive of first, shall not be allowed to prosecute his studies for the (Aayu Shalya Vigyan Snatak) (First M.B.B.S. Course) provided that a person may be permitted to take examination after the said examinations if he produces a certificate from the Dean/Principal of Medical College to the effect that he was under the treatment of Physician or Surgeon in the College Hospital and as such was not in a position to present himself for an examination."

8. In the backdrop of the above referred clause 16, it would be appropriate to consider clause 17 of Direction No.10 of 2003 which reads thus :

"An examinee who does not pass or fails to present himself at the LL.B. first semester examination in five consecutive examinations inclusive of the first shall not be allowed to continue the LL.B. Course."

The provisions of above referred clause 17 are pari materia to clause 16 of Ordinance 55 of Amravati University. This Court in para 5 of the judgment, cited supra, held as under :

"Clause 16 of Ordinance 55 debars prosecution of studies for the first M.B.B.S. course to an examinee who does not pass or fails to present himself at the first examination in the four consecutive examinations, inclusive of first. The word "examinee" occurring in clause 16 has to be read in contradiction to the words "applicant" and "candidate" since all the three expressions viz. "examinee" "applicant" and "candidate" have been given different meaning and defined differently under Ordinance 6. The expression "examinee" under clause 16 of Ordinance 55, therefore, has to be read as a person who presents himself for an examination to which he has been admitted and admission to examination means the issuance of admission card to a candidate in token of his having complied with all the conditions laid down in the relevant Ordinance. Can it be said in view of the specific definition of "examinee" in clause (vi) of Ordinance 6 that a person who is not issued an admission card for admission to an examination to be an examinee under clause 16 of the Ordinance 55. Our answer shall be simply in negative. Clause 16 of Ordinance 55 is only applicable to an examinee who has not passed or failed to present himself at the first M.B.B.S. examination in four consecutive examinations and not to other applicants or candidates who, for any reason, could not pass or failed to present themselves at the first examination in the four consecutive examinations inclusive of first."

9. The above referred observations made by the Division Bench, in our view, concludes the issue in question and by applying the same analogy to the word "examinee" as defined in Ordinance 6 of the Nagpur University, the petitioner cannot be said to be an "examinee" and consequently since the petitioner neither submitted the application nor was issued admission card in token of his having complied with all the conditions after Summer 2003 first year LL.B. Examination, the stipulations mentioned in clause 17 of Direction No.10 of 2003 are not attracted. In the circumstances, the impugned communication dated 19-8-2005 issued by the Principal of the College, in the light of the law laid down by this Court in the above referred judgment, cannot be sustained in law and the same is quashed and set aside.

Rule is made absolute in above terms. There shall be no order as to costs.

Order accordingly.