1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1013 OF 2010 Ms.Shubhangi Narayanrao Yadav & Ors. ...Petitioners Versus Shivaji University, Kolhapur & Anr. ...Respondents ...... Mr.Nitin P.Deshpande for Petitioners. Mr.R.S.Khadapkar for Respondent No.1. ...... CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ. DATED:- APRIL 28, 2010. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Khadapkar, A.G.P. waives notice for Respondent No.1. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. By this Writ Petition under Article 226 of the Constitution of India, direction is sought against the University to declare the Petitioners as having passed examination for Bachelor in Dress Making and Fashion Co- ordination (BDFC) with First Class or Distinction, as the case may be. It is 2 further prayed that the Respondent No.2 may be directed to consider the Petitioners for the post of Lecturers for Dress Designing and Garment Manufacturing (DDGM) by treating them as having passed in First Class in final examination of the degree in BDFC. By amending this Petition, further relief is claimed that the decision of the Adhoc Board of Studies of the University at Exhibit `L' dated 3rd April 2010 is arbitrary and violative of Article 14 of the Constitution of India. 5. Briefly stated, each of these Petitioners after passing out Diploma in DDGM between year 2001-2006 took admission to Degree Course known as BDFC. As per the rules applicable at the relevant time, the Petitioners were given admission in the Second Year Degree Course of BDFC and were exempted from taking admission to First Year Degree Course. It is not in dispute that each of these Petitioners subsequently appeared for the examination of Part-II and Part-III and passed out the said examination successfully. The Respondent University, however, treated the Petitioners along with unsuccessful candidates referable to Rule 5 and Rule 6 of the Ordinances and Regulations and considered them as Pass Class. 3 6. To examine the controversy on hand, we shall immediately advert to Rule 5 and Rule 6 of the said Ordinances which read thus: “5. A) An unsuccessful candidate who has passed in any of the subjects with minimum 40% of the total numbers of marks in that head of subject may, at her option be exempted from appearing in that head of subject at a subsequent examination and will be declared to have passed in the whole examination when she has passed in the remaining heads of subjects of the examination in accordance with B.D.F.C.-II for the purpose of deciding whether a candidate has passed the examination in the manner aforesaid, the marks obtained by her in those subjects in the previous examination shall be carried forward. Candidates passing the examination in this manner will not be eligible at the examination. B) An unsuccessful candidate who has passed in any of the head of the subject with minimum 40% of the total numbers of marks in that subject may at her option be exempted from appearing in that head of the subject at a subsequent examination and will be declared to have passed in the examination in accordance with B.D.F.C.-III for the purpose of deciding whether a candidate has passed the Examination in the manner aforesaid the marks obtained by her in those subjects in the previous examination shall be carried forward. Candidate passing the examination in this manner will not be eligible for a class or a prize or a scholarship to be awarded at the examination. C) An unsuccessful candidate who has passed in any of the subjects with minimum 40% of the total number of marks in that subject may, at her option be exempted from appearing in that subject at a subsequent examination and will be declared to have passed in the whole examination when she has passed in the remaining subjects of the examination. For the purpose of deciding whether a candidate has passed the examination in the manner aforesaid, the marks obtained by her in those subjects in the previous examination shall be carried forward. Candidate passing the examination in this manner will not be eligible for a Class or a prize or a scholarship to be awarded at the examination.” 4 “6. Standard of Passing at B.D.F.C. Examination. A) Theory and Practical examination and External & Internal in each subject shall form another separate head of passing. B) A student shall have to secure 40% marks in theory and practical and external and internal examination separately in order to pass in those heads of passing. She shall declared to have passed the examination if he possess in all heads of passing at Part I, II & III examination. C) In order to secure the second class with Hons. S candidate shall have to obtain at least 45% of marks in the aggregate at University Examination. D) In order secure the First Class with Hons. a candidate shall have to obtain at least 60% of marks in the aggregate at University Examination. E) A students shall be declared to have passed in the First Class (Hons.) with distinction, if he gets at least 70% of marks in the aggregate at University Examination.” 7. It is not in dispute that the Petitioners were admitted directly to Part-II of the BDFC since they possessed Diploma in DDGM, which was permissible as per the rules prevailing at the relevant time. Having exempted the Petitioners from taking admission to Part-I of the BDFC, it presupposes that the Diploma in DDGM was always considered as equivalent to the subjects of Part-I of the BDFC and weightage of the said Diploma was given to the Petitioners and similarly placed students. If it is so, the question of requiring the Petitioners and similarly placed students to once again appear for the Part-I examination and only thereafter treat the said candidates along with other successful candidates referable to Rule 5 and Rule 6, does not stand to reason. 5 8. Insofar as Rule 5 is concerned, it deals with the category of unsuccessful candidates or candidates who have been exempted from appearing in a particular subject. These provisions - neither Rule 5 nor Rule 6 - can be invoked in respect of the students who have been admitted directly to Part-II of BDFC, keeping in mind that they have passed out Diploma in DDGM. There is no specific provision dealing with such candidates. No other provision has been brought to our notice which would apply to the candidates such as the Petitioners herein who have been admitted directly to Part-II of BDFC. The fact that they have been admitted to Part-II of BDFC presupposes that they are deemed to have passed out the subjects of Part-I examination of the said Degree Course. In absence of that approach, it would lead to an absurd situation. The Board of Studies however has taken into account Rules 5 and 6 to reject the claim of the Petitioners herein. As aforesaid, neither Rule 5 nor Rule 6 can have application to the candidates who have been directly admitted to Part-II of BDFC on account of their qualification in Diploma in DDGM. 9. In the circumstances, we have no hesitation in setting aside the decision of the Adhoc Board of Studies of the Respondent University. As a 6 result, the communication sent by the Deputy Registrar of the Respondent University dated 19th September 2003 cannot be given effect to as it is founded on the same decision. 10. In the circumstances, we think it appropriate to direct the Respondent University to re-examine the case of the Petitioners. In the event, there are no express Rules so as to govern the Petitioners and similarly placed students who had directly taken admission in Part-II of BDFC on account of their qualification of Diploma in DDGM, the University may consider of formulating appropriate Policy. However, such a policy or regulation can be made applicable only prospectively. Insofar as the Petitioners and similarly placed students are concerned, in absence of any Rule prevailing at the relevant time, the University may have to treat the marks obtained by the Petitioners at the Diploma in DDGM as equivalent to marks obtained in Part-I of BDFC examination or in the concerned subjects of the Diploma Course which are common to subjects of Part-I in BDFC and reckon the said marks for computing aggregate marks obtained by the candidates for the entire BDFC Degree. We, however, express no final opinion in that behalf as we expect the Board of Studies to re-examine the case on its own merits and take appropriate decision as may be advised. That, however, 7 shall be done within three months from today. 11. So long as that decision is not taken, the question of considering the second prayer of the Petitioners does not arise. It is only after the Petitioners are treated as having secured First Class in Final Examinations of the Degree in BDFC, they would become eligible to be considered for the post of Lecturer for Dress Designing and Garment Manufacturing Course. 12. Petition is disposed of on the above terms. (R.M.SAVANT, J.) (A.M.KHANWILKAR, J.)