CWP 9529 of 2009 #1# IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP 9529 of 2009 Date of Decision: 6.8.2009. Shefali Mittal ..........Petitioner Versus Panjab University and another ..........Respondents CORAM: HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE JASWANT SINGH. Present: Ms.Anu Chatrath,Advocate for the petitioner. Mr.HS Shergill,Advocate for respondent no.1. Mr.Sameer Sachdeva,Advocate for respondent no.2. 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? JASWANT SINGH,J. Petitioner appeared in Senior Secondary (Open School) Examination held by Punjab School Education Board, Mohali (for short, “the Board”) in March 2008. She secured more than 33 % of aggregate marks with compartment in the subject of History by securing 21 marks i.e more than 20% in compartment paper. Despite her compartment in History, she being eligible as per the college prospectus to get admission CWP 9529 of 2009 2 in B.A.I Examination, was admitted by respondent no.2-College in B.A. Part I. The petitioner attended B.A. Part I Classes throughout the academic session 2008-09. In the meanwhile she also cleared her compartment in History in 10+2 examination held in September 2008 and reported/informed the respondent no.2 college on 24.11.2008. The detailed mark sheet in respect of her 10+2 examination was received by her on 7.1.2009 (Copy Annexure P/6) which was also furnished to respondent no.2-College. For appearing in B.A.Part I Examination the petitioner was allotted roll no.1460800027 (Annexure P/7) and she appeared in the said examination. At the asking of the respondent college, the petitioner submitted her original detailed marks card of 10+2 examination in its office on 2.5.2009. It is case of the petitioner that respondent no.1-University vide its letter dated 12.5.2009 (Annexure P/10) illegally held her ineligible for admission to B.A, Part I Session 2008-09 as per admission guidelines 3 (f) dated 28.5.2008, being a compartment case in 10+2 examination conducted by the Punjab School Education Board under the “Open School Scheme” and further directed that her name be struck off from the rolls of the college and her result of B.A Part I be not declared. On being informed about the decision of the respondent no.1-University, the petitioner took up the matter with University authorities but of no avail. Hence the present writ petition under Article 226 of the Constitution of India praying for quashing of impugned CWP 9529 of 2009 3 memo dated 12.5.2009 (Annexure P.10) and for directing the respondents to declare her result of B.A.I with a further direction to allow her to seek admission in B.A.IInd Year with a further prayer to quash the Guideline 3(f) issued by respondent No.1- University for admission in B.A Part-I, on the ground that it runs counter to the Regulations 4.2 contained in Chapter VIII of Panjab University Calendar 2005, Vol. II regarding the conduct of examination of B.A-I (General) framed by the Senate, the competent authority, in exercise of its powers under Section 31 of the Panjab University Act, 1947. Upon notice respondents filed separate written statements. Respondent no.1-University in its short reply submitted that guideline 3(f) mentioned, to which challenge has been laid in the present petition specifically covers only those students who have passed +2 examination from “open school” and that the said Regulations 4.2 covers those students who have been placed in compartment in one subject whereas in Open School System there is no compartment but a candidate gets six chances to reappear in the failed subject and if placed in compartment the candidate has to clear the compartment subject in two consecutive chances or else the candidate has to take full subject examination. Respondent no.2-College in its written statement has taken a plea that the college was not, at all, aware at the time of grant of admission in B.A Course that the petitioner has appeared in +2 examination conducted by the Board under the Open School Scheme as CWP 9529 of 2009 4 all the documents submitted with the admission form did not so reveal. It was further stated that this fact came to the notice of the college authorities for the first time when the petitioner submitted her original mark sheet of +2. It is further their stand that in terms of clause 3(f) contained in Instructions dated 28.5.2008 issued by Panjab University, only those students from recognized open schools are eligible to seek admission in B.A Part I, if their result in +2 is shown as “PASS”. Clause 3(f) of the said instructions has been reproduced, which reads as under: “3(f) Students who have passed +2 exam, from recognized Open School are eligible for admission to the B.A/B.Sc (General)/B.Com-Ist year course, only if their result is shown as 'PASS' in their certificates issued by the said Open Schools and they have obtained the requisite percentage of marks prescribed under the University for admission to the concerned course. In case their result has not been shown as 'PASS' in the relevant column of the said certificate they being ineligible, be not admitted.” We have heard learned counsel for the parties and perused the paper book with their able assistance. Learned counsel for the petitioner has submitted that the petitioner being eligible as per the terms and conditions prescribed in the prospectus issued by respondent No.2-College was granted admission in B.A Part I, Session 2008-2009 and at no stage, any misrepresentation or mis-statement was made either in the application form or at any other stage regarding any fact relating to the details of her result of +2 examination conducted by the Board. It was thus CWP 9529 of 2009 5 argued that it was unjust,unfair and unreasonable on the part of the respondents-authorities to cancel her admission to B.A.Part I after she had appeared in the examination for B.APart I and also declared as “PASS” in +2 examination. Reliance was placed on a judgment of Hon'ble Supreme Court rendered in Shri Krishan v.The Kurukshetra University, Kurukshetra AIR 1976 Supreme Court 376. Learned counsel for the petitioner has further contended that the contents of instructions 3(f) dated 28.5.2008 postulating that the students, who have passed +2 examinations from “Open Schools” are eligible for admission to B.A, Ist year Course if the result is shown as “PASS“ are ultra vires clause 4.2 of the Regulations dealing with conduct of examinations framed by the Panjab University Senate contained in Chapter VIII (page 34 onwards) in the Panjab University Calendar, Vol.II, 2005, which do not support such a view and, therefore deserves to be set aside. On the other hand, learned counsel for the respondents has argued that the instructions 3(f) dated 28.5.2008 has to be read in harmony with the provisions/Regulations contained in the University calendar and there is nothing arbitrary in insisting that for the candidates, who have passed their +2 examination from Open School System should be eligible for admission to B.A Part I Course in the event of they having been declared as “PASS” and not otherwise since, under Open School System, there is no compartment but the candidate gets six chances to re-appear in the failed subject whereas under the CWP 9529 of 2009 6 regular system, a candidate has to clear the compartment in two consecutive chances or else the candidate has to take full subject exam. Learned counsel for respondent No.2-college, however, very graciously conceded that from the next session onward, such a condition has been dispensed with. After giving our thoughtful consideration to the rival submission of the parties and the pleadings, we are of the opinion that the contentions raised by learned counsel for the petitioner are meritorious and deserves acceptance. Before dealing with the contentions, it is necessary to reproduce Eligibility Conditions No.3 & 4 mentioned in the prospectus issued by respondent No.2-College for seeking admission to B.A Part I Session 2008-09, which reads as under: “3. The candidates placed under compartment in any subject in 10+2 examination of P.S.E.B are eligible for admission to B.A-I on the condition that they have secured minimum 33% marks in aggregate (including the marks obtained in the compartment subject) and have obtained at least 20% marks (Theory and Practical taken together) in the subject of compartment. 4. A candidate placed under compartment in 10+2 examination shall be granted admission only on provisional basis. She is required to clear the compartment in the concerned subject in the two chances provided in the same year.” It is not disputed that the aforesaid two conditions are in consonance with the provisions of Regulation 4.2 (reproduced at page 8 of the paper book) governing conduct of examination, which CWP 9529 of 2009 7 postulates that a candidate placed under compartment in +2 examination conducted by a Board shall be eligible to seek admission to B.A Ist Year provided he has been placed in compartment in one subject only and has obtained at least 20% marks in that subject and further must possess 33 % marks in the aggregate of all the subjects taken up by him in the examinations. It is also not in dispute that the petitioner in her +2 examination held by the Board in March, 2008, had got compartment in the subject of History only by securing 21 marks i.e more than 20% of the marks. It is also not dispute that she had secured more than 33 % of the aggregate marks for all the subjects. It is also admitted that respondent No.2-college found her eligible as per the eligibility conditions in the prospectus and granted her admission to B.A. Part I in the academic session 2008-09. The fact that the petitioner was eligible to be granted admission to B.A Part I is further borne out from a bare reading of eligibility conditions No.3 & 4 reproduced hereinabove. It is also an admitted case that the petitioner had cleared her compartment in History in +2 examination held in September 2008. It is also not the case of the respondents-authorities that the petitioner had made any misrepresentation at the time of seeking admission. It is further admitted fact that the petitioner was permitted to undertake annual examination for B.A (Ist year) conducted by the respondent-University held in March 2009. It is also admitted that for the next session onward, such a condition for candidates seeking admission in B.A Part I has been dispensed with, therefore, CWP 9529 of 2009 8 assuming even if the contents of aforesaid clause 3(f) were valid, in our considered opinion keeping in view the totality of the facts of this case, the cancellation of admission of the petitioner to B.A Part I is wholly unwarranted and thus sustainable. The view taken herein finds support from the judgment rendered by Hon'ble Supreme Court in Shri Krishan's case (supra), wherein a law student had not attended the prescribed courses of lecture, was permitted to appear in the examination, it was held that once the candidate is allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidate of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear. The ratio of the above judgment has been reiterated in a recent case decided by Hon'ble the Supreme Court in Guru Nanak Dev University v. Sanjay Kumar Katwal and another (2009) 1 Supreme Court Cases 610 wherein a student admitted to a law college was subsequently discovered to be ineligible as he did not possess the prescribed qualifications for admission, it has held that his admission should not be cancelled. The relevant paragraphs of this judgment reads as under: “19. The first respondent was informed that he was not eligible only after he took the first semester examination. He has, however, also been permitted to continue the course and CWP 9529 of 2009 9 has completed the course in 2007. He has succeeded before the High Court. Now after four years, if it is to be held that he is not entitled to admission, four years of his career will be irretrievably lost. In the circumstances, it will be unfair and unjust to deny the first respondent the benefit of admission which was initially accepted and recognised by the appellant University. 20. This Court in Shri Krishnan v. Kurukshetra University has observed that before issuing the admission card to a student to appear in Part I Law examination, it was the duty of the university authorities to scrutinise the papers; and equally it was the duty of the Head of the Department of Law before submitting the form to the university to see that it complied with all requirements; and if they did not take care to scrutinize the papers, the candidature for the examinations cannot be cancelled subsequently on the ground of non-fulfilment of requirements. 21. In Sanatan Gauda v. Berhampur University, this Court held where the candidate was admitted to the Law course by the Law College and the university also permitted him to appear for Pre-Law and Intermediate Law examinations, the college and the university were estopped from withholding his result on the ground that he was ineligible to take admission in the Law course. 22. Having regard to the above we are of the view that irrespective of the fact that MA (English)(OUS) degree secured by the first respondent from Annamalai University through distance education, may not be recognised as an equivalent to the Master's degree of the appellant University, his admission to the law course should not be cancelled. The appellant University is directed to treat the admission as regular admission and permit the first respondent to appear for the law examination, and if he has already appeared for the examination, declare his result. The appeal is disposed of accordingly.” The aforesaid settled legal position applies on all fours to CWP 9529 of 2009 10 the admitted facts of the present case, therefore, petitioner must succeed on the first contention raised itself and hence we do not feel necessity of dealing with the second contention raised on behalf of the petitioner. In view of the above discussion, present writ petition is allowed. Letter dated 12.5.2009 (Annexure P.10) is quashed with a direction to respondent-Authorities to declare forthwith the result of petitioner of B.A Part II Examination and further if found eligible, as per Rules, be granted permission to B.A Part II by respondent No.2- College. (M.M.Kumar) (Jaswant Singh) Judge Judge 6.8.2009 joshi CWP 9529 of 2009 11