IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT 1. Rikin Acharya Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No.1788/2010) 2. Kamlesh Patidar Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No.1789/2010) 3. Kapil Jain Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No.1787/2010) 4. Narendra Kumar Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No.1790/2010) S. B. Civil Writ Petitions under Article 226 of the Constitution of India. Date of Judgment: February 5th, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Daljeet Dudi, for the petitioners. Mr. Nikhil Singhvi on behalf of Mr. Ashok Mehta, for respondents. BY THE COURT: Aggrieved by the fact that they are not being granted 4th attempt to pass their papers in B. Sc. (Nursing) Part-I, while their batchmates are being permitted to do so, the petitioners have approached this Court. 2. Mr. Daljeet Dudi, the learned counsel for the petitioners, claims that according to the University Ordinance each student is entitled to four attempts to pass his papers. This information was likewise printed in the examination form. Therefore, they are entitled to appear in the 4th attempt to pass their papers. 3. On the other hand, Mr. Nikhil Singhvi, the learned counsel for respondents, has contended that subsequently the Ordinance of the University was amended in 2007; according to present Ordinance 299-V-10 of the University Ordinance, the maximum number of attempt permitted for each paper is three, including the first attempt. Thus, the maximum attempts permissible are only three, and not four. Thus, according to the University Ordinance, the respondents possibly cannot give the 4th attempt to the petitioners. Hence, the denial by the University is legally justified. 4. In rejoinder, the learned counsel for the petitioners has contended that the respondents have permitted other candidates, from the petitioners' batch, to appear in the 4th attempt, and even the 5th attempt. Therefore, the petitioners are equally entitled to appear in the 4th attempt. Moreover, since the Ordinance was amended in the year 2007, whereas the petitioners belong to the batch of 2006, the Ordinance cannot be given a retrospective effect. Therefore, the students of the batch of 2006 are still entitled to the 4th attempt. Lastly, since the University itself is delaying in completing the course, the benefit of the 4th attempt should be extended to the petitioners. 5. Heard learned counsel for the parties, considered the material available on record, and considered the Ordinance in question. 6. Ordinance 299-V-10 of the University Ordinance reads as under:- Maximum number of attempts permitted for each paper will be three including the first attempt. Maximum period to complete the course successfully should not exceed eight years. 7. The Ordinance was amended in the year 2007. After the amendment only three attempts were permissible. It is, indeed, trite to state that the amendment comes into force immediately and would cover the cases after it has come into force. Thus, till 2007 the students were entitled to the 4th attempt. However, after 2007, after coming into force of the amendment, the student would be entitled only to three attempts and not to a fourth one. 8. Even if others are being permitted to take advantage of the 4th attempt, or the 5th attempt, obviously such advantage is being given to them in clear violation of Ordinance 299-V-10 of the University Ordinance. It is a settled position of law that there is no estopple against statute. Therefore, merely because University may have permitted others to appear in the 4th or the 5th attempt, estopple cannot be read against the University. 9. Moreover, it is equally a settled position of law that concept of equality is a positive concept and not a negative one. Thus, merely because the University may have committed illegality and violated the law, even then concept of equality cannot be invoked. 10. Furthermore, the contention that because of inefficiency of the University in completing the course, the petitioner should be entitled to the 4th attempt is absolutely absurd. As there is no co-relation between these two. 11. Lastly, no court can direct a party to violate the law. For, a Court cannot be a party to an illegal act. Thus, this court cannot possibly direct the respondents to violate Ordinance 299-V-10 of the University Ordinance and to give the petitioners the benefit of the 4th attempt to clear their papers. 12. For the reasons mentioned above, these writ petitions are devoid of any merit. These are, hereby, dismissed. There shall be no order as to cost. ( R.S. CHAUHAN ) J. arn