MC 515/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY In WP(C) 525/2010 Heard Mr. K.N. Choudhury, learned Sr. Counsel for the applicants and Mr. J. Roy, learned Counsel appearing for the North Eastern Hill University (for short referred to as the University). 2. The applicants are before this Court with the accompanying WP(C) 525/2010 assailing in particular the decision of the University conveyed by the notification No. F.EX/EDC/CONF/2008-529 dated 23/7/2008/28/7/2008 (Annexure 2 t o the writ petition) cancelling their examination of BCA (Hons) 2nd Year (2006 b atch) held in the year 2008 and also debarring them from appearing in any Univer sity Examination for a period of one year i.e. 2009 as per Para 8 Sub-clause iv of OD-6. 3. The applicants had earlier instituted WP(C) 5330/2008 (Gau)/WP(C ) 281 (Sh)/2008 assailing the said decision. This court by its judgment and orde r dated 3/12/2009 disposed of the same along with other writ petitions remanding the issue to the University requiring it to furnish to the applicants detailed information indicating the specific act of unfair means allegedly committed by them resulting in the above consequences. While observing that such a disclosur e was essential in the interest of fairness in action of the University vis-à-vi s the applicants, they were allowed to submit representation(s) on receipt of su ch information from the University within a period of one month therefrom. Accor ding to the applicants, they on 21/12/2009 after being communicated with the nat ure of the alleged unfair means adopted by them submitted a representation befor e the Vice Chancellor of the University seeking redress. In the representation, they inter alia sought for an intervention of the said authority to declare thei r results in the second year BCA Examination and also to allow them to appear in the third year (final year) examination. While the said representation was pend ing, they approached this Court with the accompanying writ petition as the next examination of the University was scheduled to be held in the month of February/ March, 2010. This Court after hearing the learned Counsel for the parties, on 27 /1/2010 while issuing notice of motion issued the following operative directions by way of an interim measure. Upon hearing the learned Counsels and giving anxious consideration of the matte r in depth and considering the academic career of the petitioners, in the interi m, it is ordered that the petitioners be allowed to appear in the examination sc heduled to be held in the month of February/March 2010 in their respective cours e subject to eventual result of this writ proceeding without prejudice to their rights. For the purpose of facilitating the petitioners to appear in the examina tion, they shall be allowed to submit their respective forms within seven days f rom today. Even the last date of submission of such forms might have already bee n over the University shall accept their forms and allow them to sit in the exam ination scheduled to be held in the month of February/March 2010. This interim o rder, however, be subjected to further order that might be passed in the subsequ ent stage. 4. This order, as would be apparent on the face of it, was passed b y noticing the instructions of the University furnished to its learned Counsel. 5. By the present application, the applicants complain that inspite of the above order, though in terms thereof they are entitled to appear in the third year BCA Examination to commence from 23/2/2010 neither the University nor their College namely Shillong Engineering and Management College are inclined t o permit them to do so. They have therefore returned to this Court for its panac ean intervention. 6. While Mr. Choudhury has urged that the true purport of the inter im direction contained in the order dated 27/1/2010 is to permit the applicants, pending the adjudication of their challenge vis-à-vis the cancellation of their examination in BCA Part-II Examination to appear in the ensuing BCA Part-III (F inal Examination), the denial thereof is apparently illegal, arbitrary and in co ntumacious disregard to this Court. Mr. Roy has strenuously contended to the con trary. According to him, this Court by the aforementioned order only permitted t he applicants to retake the BCA Part-II Examination. In support of his plea, Mr. Roy has inter alia drawn the attention of this Court to Clause 2(b) of the rela ted Regulations, which renders a student eligible to appear the examination of t he higher class only on successfully passing the examination of the preceding cl ass. He has also referred to the letter dated 4/2/2010 of the Principal, Shillon g Engineering and Management College, Jorabat, to hint that the applicant had in fact completed the necessary formalities to appear in the BCA Part-II Examinati on and that their endeavour to obtain the permission to appear in the BCA Part-I II (Final Year) Examination is clearly an after thought. He has also pointed out that meanwhile the applicants’ representation has been rejected on merits. 7. A bare reading of the order dated 27/1/2010 though does not indi cate the examination in which the applicants had been permitted to appear on the strength thereof, the directions contained therein essentially would have to be construed in the context of the challenge laid before this court. The applicant s, as the records would reveal have mounted the assailment against the cancellat ion of their BCA Part-II Examination and the decision of the University to debar them from taking part in all the examinations for one year. The interim order t herefore has to be discerned in that perspective. 8. Having regard to the essence of their challenge which is against the cancellation of the BCA Part-II Examination, the rejection of this represen tation notwithstanding, in the opinion of this Court, the order could not be dee med to be confined to the said examination. The purpose being, without prejudice to the rights and contentions of the parties to ensure that in the event of the writ petition being allowed, the applicants do not lose one academic year, this Court is constrained to negate the resistance raised on behalf of the Universit y on the basis of its interpretation of the order dated 27/1/2010. True it is th at under normal circumstances a student unless he successfully completes his cou rse in one class and passes, the examination therefor ought not to be allowed to appear in the examination of the next higher class, the interim arrangement as envisaged in the order dated 27/1/2010 being in an exceptional fact situation, t he provision of the Regulations as sought to be pressed into service would prese ntly not act as a bar for the applicants to appear in the ensuing BCA Part-III E xamination for this limited purpose. The letter dated 4/2/2010 indicates that th e aplicants had filled up the examination forms for the BCA Part-III Examination as well but the same had been returned to the University. On the other hand the letter dated 18/2/2010 by the Controller of Examination of the University and a ddressed to the Principal of the applicants’ College in clear terms discloses th at it has been decided not to allow them to sit in the Part III Examination, as they had not cleared the Part-II Examination. 9. In view of the fact that the challenge to the cancellation of th eir Part-II Examination is subjudice before this Court, this plea flies in the f ace of the interim direction contained in the order dated 27/1/2010. In the abov e view of the matter, this Court is of the unhesitant opinion that in the light of the letter and spirit of the order dated 27/1/2010, the applicants ought to b e allowed subject to the completion of all other necessary formalities to appear in the ensuing BCA Part-III Examination scheduled to commence from tomorrow i.e . 23/2/2010. This order has been passed in the atypical facts and circumstances of the case and is confined to the applicants alone and would not be construed t o be a precedent in future. This order as well ought not to be viewed in any man ner to be dismissive of the University’s stand at this stage and has been passed only to avoid the loss of one academic year of the applicants in the event of t he writ petition being allowed. It is made clear that the permission granted to the applicants is without prejudice to the right and contentions of the parties qua the principle challenge laid in the accompanying writ proceeding and would a bide by the final decision therein. Misc. case stands allowed in the above terms.