IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2025 of 2008 (M/S) Abhishek Srivastav ..........Petitioner Versus Hemwati Nandan Bahuguna Garhwal University, Srinagar & others ....Respondents Mr. Anurag Bisaria, Advocate for the petitioner. Mr. Vinod Nautiyal, Advocate for the respondents. Dated: 03.06.2009 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner for a direction to the respondents to declare the result of the petitioner of Vth Semester Examination and Special Back Paper Examination in the Subject of Mathematics in Bachelor of Computer Application (2005-2008). 2. Brief facts of the case are that the Graphic Era Institute of Technology, Dehradun is affiliated with Hemwati Nandan Bahuguna Garhwal University, Srinagar (hereinafter referred to as the University). The petitioner took admission in the year 2005 in there year course of Bachelor of Computer Application at Graphic Era Institute of 2 Technology, Dehradun. The petitioner appeared in Ist Semester Examination which was held in the year 2005 in which he could not obtain the minimum passing marks in one paper of Mathematics. Petitioner appeared in Mathematics (Ist Semester) in the year 2006 as back paper but he could not obtain passing marks and was declared failed. Thereafter, the respondents permitted the petitioner to pursue IInd, IIIrd, and IVth Semester courses and also permitted him to appear in the examination of these Semesters. After passing IInd, IIIrd and Ivth Semester the petitioner applied for admission in Vth Semester but the respondents denied to give admission to the petitioner in Vth Semester on the ground that he failed in one subject of Ist Semester. The petitioner alongwith other students made representation to respondent no.3 praying therein that they may be permitted to appear in one subject of Ist Semester as re-back examination and also be allowed to sit in Vth Semester Examination otherwise their whole year will be wasted. Respondent no.3 allowed them to appear again in one subject of Ist Semester. The petitioner was also permitted to appear in Mathematics paper of Ist Semester Examination for which the petitioner was directed to deposit fee of Rs.5,000/- for that paper. The petitioner deposited the requisite fee amount. After depositing the fee permission was granted to the petitioner to appear in the Vth Semester Examination as well as in Ist Semester Mathematics Examination vide letter dated 17.08.2007. Thereafter, the petitioner pursued his studies but in the month of June, 2008 3 admission cards of others students of Vth Semester were issued but no admission card was issued to the petitioner. Therefore, he filed a Writ Petition No.174 of 2008 (M/S) before this Court for direction to the respondents to permit him to appear in Vth Semester Examination and also in Back Paper Examination of Ist Semester, During the pendency of writ petition no.174 of 2008 (M/S) the respondent gave permission to the petitioner to appear in Vth Semester Examination vide letter dated 30.01.2008. The petitioner submitted an affidavit before respondent no.3 on 31.01.2008 stating therein that if petitioner is permitted to appear in Special Back Paper Examination (Ist Semester) as well as in Vth Semester Examination, the petitioner will withdraw his writ petition no. 174 of 2008 (M/S). Thereafter, the petitioner was granted permission to appear in Mathematics subject of Ist Semester and also in Vth Semester Examination. After getting permission to appear in the examination, the petitioner moved an application before this Court and withdrew the writ petition no. 174 of 2008 (M/S). He appeared in Vth Semester Examination as well as in Mathematics Paper of Ist Semester. The petitioner also completed his final VIth Semester with good marks but respondent no.4 did not declare the result of Vth Semester Examination and Mathematics subject of Ist Semester. The respondent no.4 vide letter dated 20.09.2008 informed the respondent no.3 that result of Vth Semester examination of five students (including the petitioner) will be declared only when they submit affidavit before the University stating 4 therein that they are ready to appear in all subjects of Ist Semester as back paper. Aggrieved by this action of respondents, the petitioner filed the present writ petition before this Court. 3. The respondent nos.1 to 4 filed their counter affidavits in which they have submitted that the petitioner has no right to challenge the order dated 20.09.1998 which is valid order as the petitioner failed twice in B.C.A. Ist Semester mathematics paper and now according to rules it is mandatory for him to appear in all papers of B.C.A. Ist Semester. In paragraph 14 of the counter affidavit, the respondents have submitted that the petitioner appeared in B.C.A. Ist Year Examination in the year of 2005 but he could not clear B.C.A. Ist Year Examination as he failed in Mathematics. He was permitted to appear in Back Paper again but he failed. According to Clause IV Sub Clause 3 and Clause VIII of the Ordinance relating to B.C.A., the petitioner was not eligible to continue further studies but the University on humanitarian ground gave admission to the petitioner in IInd, IIIrd, IVth and Vth Semester. The Examination Committee, which is supreme body, decided to refund Rs.5,000/- to the petitioner and the Examination Controller vide order dated 20.09.2008 intimated the Principal of Graphic Era Institute that result of Vth Semester will be declared only on undertakings given by the students that they will appear in all papers of B.C.A. Ist Semester. It is further mentioned in para 17 of the counter affidavit that the 5 petitioner can appear in Ist Semester Examination as an ex- student. 4. Learned counsel for the petitioner submitted before the Court that when the respondents themselves permitted the petitioner to appear in Mathematics subject of Ist Semester on deposit of Rs.5,000/- as fee, now they cannot ask the petitioner to appear in that paper as well as all other papers afresh. Such action of the respondents is arbitrary and illegal. He further argued that after permitting the petitioner to appear in IInd, IIIrd, IVth, Vth and VIth Semester Examination, the respondents are not justified in asking the petitioner to appear in all subjects of Ist Semester Examination again. Learned counsel for the respondents, on the other hand, argued that there is no provision for granting permission to a student to appear again in a subject in which he has failed in back paper also and in view of this legal position petitioner is required to appear in all subjects of Ist Semester as ex-student. According to Mr. Vinod Nautiyal, permission to appear in Mathematics subject of Ist Semester in the year 2008 was given to the petitioner by mistake and petitioner cannot take benefit of the same. 5. It is not disputed that respondents allowed the petitioner to appear in Mathematics subject of Ist Semester for which the he was directed to deposit fee of Rs.5,000/-. The petitioner deposited the requisite fee and after deposit of the fee the petitioner was permitted to appear in Vth 6 Semester Examination as well as Mathematics subject of Ist Semester. It is also undisputed that without declaring the result of Mathematics paper of Ist Semester, the respondents permitted the petitioner to pursue his studies of IInd, IIIrd, IVth, Vth and VIth Semester and also permitted him to appear in the examination. Now when the respondents themselves permitted the petitioner to appear in Mathematics subject of Ist Semester and also permitted him to pursue his further studies of IInd, IIIrd, IVth Vth and VIth Semester, the action of the respondents in withholding the result of Mathematics subject of Ist Semester as well as result of Vth Semester Examination is not fair. In fact, if any person is to be blamed, he is not the petitioner but the respondents, who permitted the petitioner to continue further studies in violation of Clause 4(3) of the Ordinance and brought this situation. It was open for them not to permit the petitioner to pursue his further studies of IInd, IIIrd, IVth and Vth Semester. They could have prevented the petitioner from appearing in IInd Year Examination and could have asked the petitioner to appear in all papers of Ist Semester Examination but they did not do so. Now when the petitioner has completed his all Semesters, the University is not justified in withholding the result of the petitioner of Mathematics subject of Ist Semester and also of Vth Semester. It is strange that University is asking a student to appear in Ist Semester examination as ex- student when he has passed his entire course. This cannot be done at this stage. Even if it is assumed that petitioner was given permission to appear in Mathematics subject of Ist 7 Semester by mistake, the petitioner cannot be held guilty and be punished for the mistake committed by the University authorities. It is open for the University to take action against such officers who gave permission to the petitioner in violation of relevant Ordinance. 6. In view of above discussion, the writ petition is allowed. The respondents are directed to declare the result of the petitioner of Vth Semester Examination and Mathematics subject of Ist Semester of B.C.A. Course (2005- 2008) forthwith. 7. No order as to costs. (V.K. Bist, J.) 03.06.2009 Arti