The petitioner, unfortunately, failed to avail her chances to clear the backlog paper: Calcutta High Court

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Present : Hon’ble Justice Amrita Sinha WPA No. 99021 The State of West Bengal & Ors For the writ petitioner For Burdwan University Amrita Sinha J.: Mr. Biswarup Biswas Adv Mr. Nabankur Paul Adv Md. Apzal Ansari Adv Mr. N. C. Bihani Adv Mr. Soumyajit Ghosh Adv Mr. Anil Kumar Gupta Adv Mr. Manas Kuma Kundu Adv Mr. Sudip Sarkar Adv The petitioner was a student of a college affiliated to the University of Burdwan pursuing BA Hons. three year degree course under 1+1+1 pattern. She appeared in BA Part I Hons. examination 2017 and failed to obtain qualifying marks in BNGG. She appeared in the BA Part II Hons. examination 2018 and cleared the same. According to her she could not appear in the unclear Part I BNGG paper in 2018 due to her illness. She thereafter appeared and cleared the BA Part III Hons examination 2019 but again she failed to appear in the backlog BNGG paper Part I The petitioner made a representation before the University praying for a direction to allow her to appear in the unclear Part I examination. As the representation of the petitioner was not considered she approached this Court by filing a writ petition being WPA 104320 which stood disposed of by an order dated 21st January 2021 whereby the Court directed the Controller of Examinations University of Burdwan to consider the petitioner’s representation and pass a reasoned order after giving an opportunity of hearing to the petitioner and allow her to produce necessary documents in her support. The order of the Court was duly complied and the reasoned order was communicated to her The reasoned order dated 31st March 2021 rejecting the prayer of the petitioner is impugned in the present writ petition The University duly considered the prayer of the petitioner and noted that according to the University Regulation 4(UG) of Undergraduate Examinations Regulations 2016 a regular candidate shall have to complete Part I Part II and Part III Hons. General examinations within seven consecutive years including his her original enrolment in Part I examination subject to the condition that not more than three consecutive chances shall be allowed in each part. If any of the chances is not availed of by a candidate within a stipulated time the chance shall be deemed to have lapsed. The University was of the opinion that at present there is no scope for retaking any examination of the petitioner The petitioner draws attention of the Court to the UGC guidelines on determination of a uniform span period within which a student may be allowed to qualify for a degree. The guidelines mention that a student who for whatever reasons is not able to complete the programme within the normal period or the minimum duration prescribed for the programme may be allowed two years’ period beyond the normal period to clear the backlog to be qualified for the degree. During the extended period the student shall be considered as a private candidate and also not be eligible for ranking. The said guidelines are subject to the Rules and Regulations of the statutory bodies and universities governing the grant of degrees The learned advocate for the petitioner contends that as the petitioner has cleared all the papers barring one within the three consecutive years and the outer limit to complete the course being seven years the petitioner ought to have been permitted by the University to complete the course. It has been contended that a candidate is liable to be given three consecutive chances according to the University Regulations to clear the backlog papers. As the petitioner was not in a position to avail the two further opportunities which were available to her for the years 2018 and 2019 accordingly she ought to be given another chance to utilise the said benefit more so because she still has four years’ time left to complete the course The specific submission of the petitioner is that three consecutive chances ought to be read as three consecutive chances availed of The petitioner submits that since the Regulations have been made for the benefit of the students accordingly the benefit ought to be given to the petitioner for availing the opportunity to appear in the backlog paper to clear the same In support of his submission the petitioner has relied upon the judgment delivered by the Hon’ble Supreme Court in the matter of Delhi Airtake Services Pvt. Ltd. & Anr. vs State of Uttar Pradesh & Anr. 9 SCC 354 paragraphs 126 129 and 132 The petitioner has also relied upon the judgment delivered by the Hon’ble Supreme Court in the matter of JK Jute Mill Mazdoor Morcha vs Juggilal Kamlapat Jute Mills Co. Ltd. 11 SCC 332 paragraph 16 He also relies upon an order passed by the High Court of Delhi in the matter of Pijush Gupta vs University of Delhi reported in 1988 0 Supreme Del 337 paragraphs 6 9 The petitioner prays for a direction upon the University to give her one more chance to clear her backlog paper of Part I The learned advocate for the University of Burdwan relies upon the University Regulation 4(UG) of Undergraduate Examinations Regulations and submits that the Regulation categorically lays down that the outer limit for completing the course is seven years and a candidate has three consecutive chances to clear each part. The chances not availed of are deemed as lapsed According to the University the petitioner for reasons not known to the University chose not to avail the two extra opportunities that she had to clear the backlog paper. After she cleared her Part III examination mark sheet has been issued in her favour mentioning that she could not clear one paper in her Part I examination. The University has acted in accordance with their Regulations and there is no illegality on the part of the University The learned advocate refers to an unreported judgment dated 10th August 2021 passed by this Court in WPA 71121 of Undergraduate Examinations Regulations 2016 reads as follows “A regular candidate shall have to complete Part I Part II and Part III Hons. General examinations within seven consecutive years including his her original enrolment in Part I examination subject to the condition that not more than three consecutive chances shall be allowed in each part If any of the chances mentioned above is not availed of by a candidate within the stipulated period the chances shall be deemed to have lapsed.” UGC guidelines referred to by the petitioner lays down that normally a student is expected to complete his programme within the minimum period as laid down under the relevant Regulation of the University and the same should be in conformity with the UGC Regulations A student who for whatever reasons is not able to complete the programme within the normal period or the minimum duration prescribed for the programme may be allowed two years’ period beyond the normal period to clear the backlog to be qualified for the degree. During the extended period the students shall be considered as a private candidate and also shall not be eligible for ranking. The guidelines further mention that the guidelines are subject to the Rules and Regulations of the statutory bodies and universities governing the grant of degrees UGC guidelines in my opinion deal with the outer time limit within which a course is to be completed by a candidate. According to the UGC guidelines two extra years ought to be allowed for the candidate to complete the course. The guidelines are however subject to the Rules and Regulations of the concerned University In the instant case the University has a regulation which mentions that the outer limit to complete the course is seven years. The University Regulations further mention that three consecutive chances can be availed of by a candidate for clearing the backlog paper and further that if any chance out of the said three consecutive chances is not availed of by a candidate the said chance shall be deemed to have In the instant case the petitioner appeared in the Part I examination in the year 2017 and failed to clear one paper. The petitioner ought to have availed the opportunity to appear in the backlog paper in the year 2018 and lastly in 2019. The petitioner for reasons unknown did not avail the opportunity to clear her backlog paper in the next two chances which she had The submission of the petitioner that the term ‘consecutive’ ought to mean as ‘consecutive chances availed of’ cannot be accepted by the Court. The Court in the matter of Souvik Ghosh held that the dictionary meaning of the word ‘consecutive’ is following one after another in a series without interruption According to the petitioner she first appeared in the year 2017 and she may be allowed to appear in the year 2021 22 or thereafter. If the argument of the petitioner is to be accepted then it would mean that a candidate may avail the opportunity to clear the backlog paper in three chances any time as per his wish within the outer limit of seven years as prescribed The legislature in its wisdom has fixed two time limits for completion of the course. First one is the time limit for completion of the entire course and the second one is the time limit to clear a part of the said course. The time limits mentioned are distinct and run parallel to each other. Had it been the intention of the legislature that a candidate may be given three opportunities to clear a part within the outer limit of seven years then the expression ‘consecutive chances’ had not been used. It would have been mentioned that three chances may be availed of for clearing an examination within the seven years course. Adding words to the said expression will distort its meaning The Hon’ble Supreme Court in Delhi Airtake Services in paragraph 126 held that the basic purpose of interpretation of statutes is further to aid in determining either the general object of the legislation or the meaning of the language in any particular provision. The intention which appears to be most in accordance with convenience reason justice and legal principles should in all cases of doubtful interpretation be presumed to be a true one. In the instant case there is not ambiguity in the regulation of the University. There is absolutely no doubt in the mind of the Court that consecutive chances mean one after the other without any break in between The Hon’ble Supreme Court in JK Jute Millreiterated the observation that procedure is the handmaid of justice and is meant to serve justice. The Court while deciding the aforesaid matter referred to the judgment in the case of Kailash vs Nanhku 4 SCC 480 paragraph 28 wherein it was mentioned that the language employed by the draftsman of procedural law may be liberal or stringent but the fact remains that the object of prescribing procedure is to advance the cause In the instant case the Regulation of the University have been framed keeping in mind the interest of the students. The argument that has been advanced by the petitioner if accepted will in my opinion create uncertainty and the entire examination process will remain hanging for years together. The same is certainly not in the interest of the students neither is it in the interest of justice The Delhi High Court in Piyush Gupta was of the opinion that a candidate who failed in one of the papers of a semester is entitled to get only one more chance to pass in that paper as a regular student and if he fails in the second chance also he can appear in that paper as an ex student in the future examinations without any restrictions regarding the number of chances The aforesaid order was passed in respect of a student studying a course affiliated to the University of Delhi. In the present case the University of Burdwan does not have any provision to allow a candidate to appear in the examination as an ex student. Immediately after conclusion of a course the University of Burdwan issues the mark sheet mentioning the marks obtained by a candidate and the relationship between the University and the student severs. Accordingly there is no provision for permitting the petitioner to appear in the examination not as a regular candidate but as an ex student of the university. As such the judgment referred to by the petitioner does not come to her aid On the contrary the judgment referred to by the respondents in the matter of Souvik Ghosh is apt and may be relied upon for the purpose of taking a decision in the instant case The basic principle of interpretation is that if the language of the statute is clear and there is no ambiguity then the meaning which appears from the plain reading of the provision is to be applied. Burdwan University Examinations Regulations are crystal clear. There is hardly any ambiguity. The timelines mention that a backlog paper has to be cleared within three consecutive chances and if the chances are not availed of they shall be deemed to have lapsed. The petitioner unfortunately failed to avail her chances to clear the backlog paper. In such a situation no direction can be passed upon the University to permit the petitioner to appear in her backlog paper for clearing the same once again The writ petition fails and is hereby dismissed WPA 99021 is dismissed Urgent certified photo copy of this judgment if applied for be supplied to the parties expeditiously on compliance of usual legal formalities ( Amrita Sinha J. 

Summary: Burdwan University Examinations Regulations are unambiguous. The rules mention that a backlog paper had to be cleared within three consecutive chances and if the chances are not availed then they shall be considered to have lapsed. The Hon’ble High Court at Calcutta before Hon’ble Justice Amrita Sinha held such an opinion regarding the case of  Safia Khatun Vs. The State of West Bengal &amp; Ors [WPA No. 9902 of 2021]. The facts of the case were associated with the petitioner’s appeal to sit for the backlog exam. The petitioner was a student of a college affiliated with the University of Burdwan. The petitioner was pursuing a three-year degree course, under the 1+1+1 pattern. In 2017 she appeared in BA Part-I Hons. but couldn’t obtain the qualifying marks in BNGG. She consecutively failed to appear in her backlog exam in 2018 and 2019. A representation before the University to appear in the unclear Part-I examination was prayed by the petitioner. The inconsideration of her representation lead her to appeal before the court, filing a writ petition being WPA 10436 of 2020 which stood disposed of by an order dated 21st January 2021. The order dated 31st March 2021 rejected the prayer of the petitioner is impugned in the present writ petition. The petitioner stated the UGC guidelines which explained the span, a student may be allowed to qualify for a degree. The mentioned guidelines are subject to the Rules and Regulations of the statutory bodies and universities governing the grant of degrees. The learned advocate of the petitioner asserted that the petitioner had completed all her exams except for one exam and that, according to the rules the outer limit to appear for the course was seven years, and the University was ought to allow the petitioner to complete the course. To support the statement the petitioner referred to the case of the Hon’ble Supreme Court in the matter of Delhi Airtake Services Pvt. Ltd. &amp; Anr. –vs- State of Uttar Pradesh &amp; Anr.; (2011) 9 SCC 354 paragraphs 126, 129 and 132. The petitioner also two other cases – (i) the judgment delivered by the Hon’ble Supreme Court in the matter of JK Jute Mill Mazdoor Morcha –vs- Juggilal Kamlapat Jute Mills Co. Ltd.; (2019) 11 SCC 332 paragraph 16. (ii)  an order passed by the Hon’ble High Court of Delhi in the matter of Pijush Gupta –vs- University of Delhi reported in 1988 0 Supreme Del 337 paragraphs 6-9. The University submitted that the petitioner for unknown reasons chose not to avail the two extra opportunities to clear her backlog paper. In accordance with the regulations, there is no illegality on the part of the University. The University already had a regulation where it was mentioned that if any of the chances were not availed by the candidate for clearing the backlog papers within the stipulated three consecutive chances and within the seven years’ time period, the chances would be considered to have lapsed, therefore no further chance can be given to the petitioner. Burdwan University Regulation 4(UG) of Undergraduate Examinations Regulations, 2016 reads as follows: “A regular candidate shall have to complete Part-I, Part-II and Part-III Hons./General examinations within seven consecutive years including his/her original enrolment in Part-I examination subject to the condition that not more than three consecutive chances shall be allowed in each part. If any of the chances mentioned above is not availed of by a candidate within the stipulated period, the chances shall be deemed to have lapsed.” It was known that the legislature had fixed two-time limits for the completion of the course. Firstly, the time limit for completion of the entire course and secondly the time limit to clear a part of the said course. In the instant case, it appears that the University framed its regulations keeping the interest of students in mind. The Hon’ble Court believed that the rules and regulations of the University of Burdwan were crystal clear and that its the student who failed to appear in her backlog paper to clear the same.  The Hon’ble High Court at Calcutta before Hon’ble Justice Amrita Sinha considered all the facts and held “… The petitioner, unfortunately, failed to avail her chances to clear the backlog paper. In such a situation no direction can be passed upon the University to permit the petitioner to appear in her backlog paper for clearing the same once again. The writ petition fails and is hereby dismissed.”