IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10676 of 2010 1. NILAMBER KUMAR S/O MANI LAL DAS R/O VILL.- BHATTA BAZAR, TATMA TOLI, P.S.- K. HAT, DISTT.- PURNEA 2. AJAY KUMAR S/O BASUDEO PRASAD YADAV R/O VILL.- AERODRUM ROAD, (PURNEA COURT STATION), P.S.- K. HAT, DISTT.- PURNIA 3. RAZI SHADAB KHAN S/O ABDUL MAJEED KHAN R/O MOHALLA- KHALASI MOHALLAH, P.S.- JHAJHA, DISTT.- JAMUI 4. KUNDAN KUMAR S/O PRADEEP PASWAN R/O MOHALLA- TARA NAGAR, P.S.- KASBA, DISTT.- PURNEA 5. HEMANT RAY S/O RAMANAND ROY VILL.- NARKATIA, P.S.- BIHPUR, DISTT.- BHAGALPUR 6. PAWAN KUMAR NEHRU S/O CHANDRA KISHOR YADAV R/O VILL.- DIGHI, P.S.- MURALIGANJ, DISTT.- MADHEPURA 7. AMRENDRA KUMAR CHOUDHARY S/O LATE LAXMI CHOUDHARY R/O VILL.- SITAPUR, P.S.- BIRPUR, DISTT.- SUPAUL 8. NITIN KUMAR S/O SHRI RAJ KUMAR HAJARI R/O VILL.- TRIVENIGANJ, DISTT.- SUPAUL 9. ANAND KUMAR S/O SHRI SHAILENDRA KUMAR R/O VILL.- MANHARA, P.S.- SINHESHWAR, DISTT.- MADHEPURA 10. DHANANJAY KUMAR S/O DEVNANDAN PD. YADAV R/O VILL.- PIPRA, P.S.- BANMANKHI, DISTT.- PURNEA 11. RAJNIKANT S/O RAJENDRA JHA R/O VILL.- BANMANKHI, P.S.- BANMANKHI, DISTT.- PURNEA 12. TRIBHUVAN YADAV S/O NAGESHWAR YADAV R/O VILL.- PURVI GUGULDIH, P.S.- GIDHAUR, DISTT.- JAMUI 13. SUBHAM KUMAR SINGH S/O LATE PREMCHANDRA SINGH R/O VILL.- CHAKAHUSAINI, P.S.- MANSI, DISTT.- KHAGARIA 14. SAROJ KUMAR S/O RAJENDRA PD. YADAV R/O VILL.- HARDA, P.S.- K. HATT, DISTT.- PURNEA 15. RAJEEV KUMAR RAJ S/O SANT LAL DAS R/O MOHALLA- NAYABAZAR, P.S.- KOTWALI, DISTT.- BHAGALPUR 16. KUMAR GAUTAM S/O AMRENDRA PD. YADAV R/O VILL.- MADHUBANI BADHNATHPURI YADAV TOLLA, P.S.- K. HATT, DISTT.- PURNEA 17. ANUJ KUMAR YADAV S/O SIYARAM PD. YADAV R/O VILL.- RAMBAG COLLEGE ROAD, P.S.- SADAR, DISTT.- PURNEA 18. MD. MUZAFFAR ALAM S/O MD. SHAFIQUE ALAM R/O VILL.- BABUPUR, P.S.- MAHAGAWA, DISTT.- GODDA 19. CHANDAN KUMAR SINGH S/O MR. KAMLA PRASAD SINGH R/O VILL.- MABIYAMA, P.S.- SANBOULA, DISTT.- BHAGALPUR 20. GAUTAM KUMAR SINGH S/O GANAESH SINGH R/O VILL.- MANKOSHI, P.S.- BODHGAYA, DISTT.- GAYA 21. VIVEK KUMAR S/O ARVIND KUMAR R/O VILL.- MADHAV NAGAR, P.S.- BHAWANIPUR, DISTT.- PURNEA 22. MD. SHAHNAWAZ S/O MD. ALTAF HUSSAIN R/O VILL.- BABUPUR, P.S.- MANIHARI, DISTT.- KATIHAR 23. MD. INTEYAZ HASHIM S/O MD. HASHIMUDDIN VILL.- SADERUDDINCHAKE, P.S.- HABISPUR, DISTT.- BHAGALPUR 24. VIKESH KUMAR RANJAN S/O SURESH PD. MANDAL R/O VILL.- SHAHBAD, P.S.- SULTANGANJ, DISTT.- BHAGALPUR 25. MD. MURTAZA ANSARI S/O MD. MUSTAFA KAMAL R/O VILL.- CHALNA, P.S.- DHORIYA, DISTT.- BANKA 26. MD. ASLAM PERWEZ S/O MD. ABDUL ZABBAR R/O VILL.- TETARIYA, P.S.- DHORAIYA, DISTT.- BANKA 27. PRAKASH KUMAR SAWALIYA S/O BINDESHWARI YADAV R/O MOHALLA- NEAR S.A.E. COLLEGE, JAMUI, P.S. + P.O. + DISTT.- JAMUI 2 28. MD. ALI S/O MD. ISLAM ANSARI R/O VILL.- CHALNA, P.S.- DHORAIYA, DISTT.- BANKA ………………… Petitioners Versus 1. THE B.N. MANDAL UNIVERSITY THROUGH ITS VICE-CHANCELLOR LALOO NAGAR, MADHEPURA 2. VICE CHANCELLOR, B.N. MANDAL UNIVERSITY LALOO NAGAR, MADHEPURA 3. REGISTRAR, B.N. MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA 4. CONTROLLER OF EXAMINATION, B.N. MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA 5. OFFICER ON SPECIAL DUTY, TECHNICAL B.N. MANDAL UNIVERSITY, LALOO NAGAR, MADHEPURA 6. MILLIA INSTITUTE OF TECHNOLOGY THROUGH ITS DIRECTOR, RAMBAGH, PURNEA 7. DIRECTOR MILLIA INSTITUTE OF TECHNOLOGY, RAMBAGH, PURNEA ……………. Respondents With CWJC No.10886 of 2010 1. MD. AJMAL HUSSAIN, S/O MD. SERAJUDDIN, VILLAGE DAULATPUR, P.S. ARA MUFFASIL,DISTRICT- BHOJPUR. 2. RAHUL DEV BURMAN, S/O SUNIL KUMAR SAH, R/O VILLAGE MADARGHAT, P.S. - KASBA, DISTRICT- PURNEA. 3. SHIRISH PATHAK, S/O GIRISH PATHAK, R/O MOHALLA C II / 61 B.I.T. MESRA, P.S. MESRA, DISTRICT- RANCHI. ………………….. Petitioners Versus 1. THE HON'BLE CHANCELLOR, BIHAR. 2. THE B.N. MANDAL UNIVERSITY THROUGH ITS VICE CHANCELLOR, LALOO NAGAR, MADHEPURA. 3. VICE CHANCELLOR, B.N. MANDAL UNIVERSITY ,LALOO NAGAR, MADHEPURA. 4. REGISTRAR, B.N. MANDAL UNIVERSITY ,LALOO NAGAR, MADHEPURA. 5. CONTROLLER OF EXAMINATION, B.N. MANDAL UNIVERSITY ,LALOO NAGAR, MADHEPURA. 6. OFFICER ON SPECIAL DUTY,TECHNICAL, B.N. MANDAL UNIVERSITY ,LALOO NAGAR, MADHEPURA. 7. MILLIA INSTITUTE OF TECHNOLOGY THROUGH ITS DIRECTOR RAMBAGH, PURNEA. 8. DIRECTOR, MILLIA INSTITUTE OF TECHNOLOGY, RAMBAGH, PURNEA. ………………. Respondents For the Petitioner : Mr. Yugal Kishore, Sr. Advocate Mr. Pramod Rajpati, Advocate Mr. Shailendra Kumar, Advocate For the Hon'ble Chancellor: Mr. Shivendra Kishore For the University (BNMU): Mr. N. P. Singh, Advocate (BNMU) Mr. Abhya Kumar, Advocate S.C.B.NMU ----------- 02. 21.07.2010 C.W.J.C. No. 10676 of 2010 and C.W.J.C. No. 10886 of 2010 are heard together. 3 The petitioners in both the writ applications have prayed for direction to the respondents to allow them to appear in final year examination of B. Tech. Engineering along with remaining papers of IIIrd year examination. Petitioners have failed in more than three papers in the IIIrd year examination, but prior to publication of their result, they were promoted to IVth year by respondent themselves in anticipation of publication of their result. The admitted facts are that petitioners took their admission in four year B. Tech. Engineering Course in Millia Institute of Technology, Purnea in Session 2006-2010. They successfully passed in all papers so far first year and second year is concerned. The petitioners appeared in IIIrd year examination in July, 2009, but the result could not be published till June, 2010. The respondent authorities of the University and the College allowed the petitioners to take admission in IVth year and thus promoted them to IVth year in November, 2009. Petitioners have attended Classes of IVth year and also appeared in the terminal examinations, in which they have successfully passed. In the month 4 of July, 2010 itself, the respondent authorities published a notice for filling up the fees and forms for IVth year and other examinations. Petitioners were allowed to fill up their fees and forms for IIIrd year examination, but so far as IVth year examination is concerned, their fees and forms are not being accepted as the respondent authorities are not allowing them to appear in the examination of IVth year. The counsel for the petitioners submits that once respondents have allowed them to take admission in IVth year, promoted them to IVth year and also allowed to attend classes, appear in terminal examinations, there is no obvious reason, for not allowing them to appear in the examination of IVth year. In this regard, petitioners have placed reliance on an unreported decision of Division Bench in LPA No. 466 of 2009. In this decision, direction was issued to the respondents to allow the petitioners to appear in the part II examination, despite the fact that the students have failed in more than three papers. On the other hand, counsel appearing on behalf of the Chancellor of the University has raised 5 objection, giving reference of regulation 12(i) and 12(ii) of Regulation and Scheme for B.Sc. Engineering Examination. He has also placed reliance on a decision reported in 2009 Vol. 1, PLJR 349, especially para 12 and 13 of the Judgement. It has been submitted by the counsel that taking note of Section 39(2)(ii) of Bihar State University act, the Single Bench has decided in the reported decision that no relaxation can be given in violation of Section 39 of the Act, which provides that in case the students have failed in more than three papers should not be allowed to appear in the next examination. No direction could be issued in a similar circumstance. It has also been submitted by Mr. Shivendra Kishore, counsel appearing for the Chancellor of the University that any concession to the students in violation of statutory provisions is not permissible and it should not be allowed. I find that the decision on which reliance has been placed by the counsel appearing for the Chancellor of the University will have application in the cases where the prayer of the petitioners is with regard to promotion to the next higher class despite the fact that they have failed in more than three 6 papers. In such cases, in violation of Regulation 12(i) and 12(ii), no direction should be issued for their promotion to the higher class. Facts of the present case is completely different, though petitioners have failed in more than three papers, they were promoted and allowed to take admission in the higher class by the respondent themselves. Petitioners have also attended classes, appeared in terminal examination and cleared those examinations. In the given facts and circumstances of the case, the judgement reported in 2009 Vol. 1, PLJR 349 has not application in the present case. Considering this fact, I do not find any reason for not allowing the petitioners to appear in the IVth year examination, along with uncleared papers of IIIrd year examination. The respondent authorities are directed to accept fees and form of the petitioners for the examination of IVth year, which is going to be held recently. However, it is made clear that despite petitioners appearance in the examination, their final result of the IVth year shall not be published, unless they will clear all papers of the IIIrd year and IVth year examination. 7 Their final result will be subject to the clearance of all papers of IIIrd and IVth year. This application is allowed. S.K.M. (Mridula Mishra, J.)