CWP No. 22772 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 22772 of 2010 (O&M) Decided on : 15-03-2011 Sambhav Garg ....Petitioner VERSUS Kurukshetra University and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. J.S.Chahal, Advocate for the petitioner Mr. R.S.Rana, Advocate for respondents no. 1 to 3 MAHESH GROVER, J The facts of the case are not disputed. The petitioner who took his M.Com examination in 2000 wanted to improve upon his performance for which he was granted a mercy chance by the respondents-University and permitted to appear for the examination in the year 2010 as per the existing norms and syllabus. The norms and syllabus which were prevalent at that point of time required the petitioner to pass examination in following subjects:- 1. Marketing Management 2. Personal Management 3. Industrial relations 4. International Business 5. Environment 6. Strategic Management 7. Computer Application to Business and E-commerce In one of the subject namely computer application to business CWP No. 22772 of 2010 (O&M) 2 and e-commerce had a requirement of 70 marks in theory and 30 marks in the practical examination. The petitioner was not permitted to take the practical examination and the reason given out by the respondents is that since the petitioner was given a mercy chance and he is not a student on the regular side undertaking the new curriculum, he cannot be permitted to take the practical examination. He was however assured that the marks for the practical will be considered by calculating it proportionately on the basis of the marks obtained by him in the theory paper. To justify their decision reliance was placed on Rule 16.1 which is extracted herebelow:- “16.1 A person who has passed the Master Commerce (M.Com) Examination of this University and is desirous of improving his performance, will be allowed to appear as an ex-student in the M.Com Examination thrice in one or more theory paper(2) of Previous and/or Final Examination within a period of five years of his passing the M.Com Examination. Such a candidate in the first instance shall be required to intimate all the paper(s) in which he would like to improve his Performance. He will then appear in the respective paper(s) at the previous and/or final simultaneously in April/May and/or in Supplementary Examinations. If he does not improve his performance he shall be eligible to do so in the following year(s) which would be treated as second chance. In case he does not improve his performance even in second chance, he shall be eligible to do in the third chance.” On due consideration of the matter, I am of the considered opinion that the said rule does not enhance the case of the respondents at all. CWP No. 22772 of 2010 (O&M) 3 According to Rule 16.1 after the petitioner had exhausted the chances for improving his performance which he was required to do within five years from the passing of his M.Com examination and upon his giving the intimation regarding the paper in which he wanted to improve his performance, opportunity was to be given to him and which was to be treated as a second chance but in the eventuality of an incumbent not improving his performance in the second chance, he was to be given a third chance. This rule could not be applied to the petitioner for the simple reason that the respondents-University itself condoned the applicability of the rule in favour of the petitioner by giving him a mercy chance subject to the condition that he passes all the examinations in the subjects and the syllabus which was prevalent at that point of time. Having done so, they cannot be selective in their approach that the current syllabus and practice applied to all the students will not be applied to him. If one of the subjects entailed the holding of a practical examination and which was done qua all the other students, the same has to be done qua petitioner also and they cannot say that they will assess him in the practical examination on the basis of marks obtained in theory paper by calculating it in proportion to such marks obtained in theory paper. Accordingly, the action of the respondents is held to be arbitrary and unfair and accordingly set aside. The respondents shall hold the practical examination for the petitioner in the concerned subject by intimating the petitioner regarding the same. Hence allowed in the aforesaid terms. March 15, 2011 (Mahesh Grover) rekha Judge