WP/602/2003 of VOLVOIKAR PRITESH R., AND 12 ORS., Vs GOA UNIVERSITY THROUGH ITS REGISTRAR AND ANR., on 16 December 2003

1. Goa University,through its Registrar,having office at Taleigao,P.O. Bambolim, Goa.

2. The Principal,

Goa Engineering College,Farmagudi, Goa....

Respondents.

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Mr. M.S. Sonak, Advocate for the Petitioners.

Mrs. A.A. Agni, Advocate for the Respondent No.1.

Mrs. W. Coutinho, Government Advocate for the Respondent No.2.

ORAL JUDGMENT: (PER KHANWILKAR, J.)

(PER KHANWILKAR, J.)

Respondent No.1 and Mrs. Coutinho for the Respondent No.2.

2. Rule made returnable forthwith. As short question is involved, petition taken up for finaldisposal by consent.

3. By this Writ Petition under Article 226 of the Constitution of India, the petitioners have sought direction against the respondents to permit them to answer the relevant Semester examination. Petitioners Nos.1 to 10 were to appear for Semester I and Semester III for the said examination, whereas petitioners No.11 to 13 were to answer Semester III. Their request was not acceded to by the University on the application of certain Ordiances to which we shall refer to a little later. The petitioners No.11 to 13

secured admission to Bachelor of Engineering Course in the Goa Engineering College affiliated to the Goa University in July, 2000 i.e. for academic year 2000-2001, whereas the petitioners No.1 to 10 secured admission to the same course in the Goa Engineering College affiliated to the Goa University, but in September 2001 for academic year 2001-2002. According to the petitioners when they took admission for the relevant academic years there was no provision and/or restriction providing for maximum duration in which the students should complete the course or for that matter for maximum attempts at each semester.

However, such a provision was made applicable in view of the amendment to Ordinance OC 10 brought into effect from 22nd April, 2002. The relevant amendment for our purposes is in CC-10.42 which reads thus :- " OC-10. 42Maximum number ofattempts and totalduration of course: Acandidate must passSemester I & IIexamination within aperiod of three yearsfrom the date ofadmission subject to amaximum of four attemptsfor each semester. Theentire B.E. programshall be completedwithin a period of eightyears from the date ofadmission. A candidatewho fails to meet theabove criteria shallforfeit his admission tothe Bachelor degree ofEngineering program and

-- 4 -- will not be allowed tore-appear for anyexamination. "

4. However, the validity of this Ordinance is not questioned by the petitioners. The University has now come out with a new ordinance OA-16 which has come into force with effect from 25th November, 2002. The preamble of this Ordinance mentions that the new Ordinance OA-16 relates to the award of class at the University examinations, duration for completing a course and other related matters. It further provides that this Ordinance shall apply to all University examinations and shall replace any similar provision existing earlier under any other Ordinances. This Ordinance was brought into force so as to bring in uniformity across all courses offered by the University. The petitioners No.1 to 10 claimed that they are entitled to appear for the First Semester, in view of the new Ordinance. It will be apposite to advert to clause OA-16.9 of the new Ordinance, which

reads thus :-

" OA-16.9 FirstUniversity Examination:

The firstUniversity examinationis the first examinationthat the student answersafter his admission to aUniversity degree Courseand which is conductedat the end of thesemester/term or at the

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end of the year (in caseof annual pattern) or atthe end of 1/2years (incase of BAMS, BHMS) asper the scheme ofexamination recommendedby the Board of Studiesand approved by theAcademic Council.The firstUniversity examinationalso includes anexamination conducted bythe college on behalf ofthe University. "

It will also be useful to adver to clauses OA-16.13, OA-16.14 and OA-16.15 of the same Ordinance which read thus :- "OA-16.13.Duration for thecompletion of theCourse.

The total durationavailable for thestudents to complete theCourse shall be twotimes the actualduration prescribed forthe course. For medicaldegree where internshiptraining is prescribed,the internship-trainingperiod is not to becounted. The studentswho do not complete thecourse/pass all theexaminations prescribedfor the course withinthe available duration,shall have todiscontinue the course.

OA.16.14 The firstUniversity examinationsmust be completed in amaximum of 4 attemptsand within a period ofmaximum 3 years from the date of admission to thecourse.

OA.16.15 The aboveordinance shall beapplicable to thestudents takingadmission from theAcademic Year 2002-2003onwards. The presentstudents who gotadmission during2001-2002 and earlierand who have notcompleted the coursewithin the availableduration prescribed,under OA-16.13 shall begiven two additionalchances for thecompletion for thecourse. "

5. As mentioned earlier, the petitioners have not challenged the validity of the amendment brought about to previous Ordinance to clause OC-10. In terms of the previous Ordinance OC-10.42 the petitioners in particular petitioners No.1 to 10 were obliged to pass Semester I and II within a period of three years from the date of admission subject to maximum of four attempts for each Semester. That period would have ordinarily elapsed in September, 2004. However, on account of the new Ordinance in particular Clause OA-16.14 read with OA-16.15 as reproduced above, the account of the new Ordinance in particular Clause OA-16.14 read with OA-16.15 as reproduced above, the said petitioners would be obliged to complete First University Examination (Semester I) in a maximum of four attempts and within a period of maximum three years from the date of admission to the course. But since the petitioners had already taken admission, in University Examination (Semester I) in a maximum of four attempts and within a period of maximum three years from the date of admission to the course. But since the petitioners had already taken admission, in the academic year 2001-2002, in view of express

provisions in OA-16.15, became entitled to two additional chances for completing the said course. Same is the case made out by the petitioners No.11 to 13 that in view of the new Oordinance they were entitled to two additional chances. However, the university has wrongly denied them permission to appear for the examination which were scheduled to be held in December, 2003. With this grievance the present petition has been filed for appropriate directions to be issued to the respondents.

6. This Writ Petition was moved before us on November 27, 2003, but was adjourned to November 29.

2003. On November 29, 2003 counsel appearing for the University fairly stated that the University will permit the petitioners in this Writ Petition to appear in the ensuing examination as well as similarly placed students, scheduled to be held on December 1, 2003, but their results be made subject to the outcome of this Writ Petition. We accede to that submission and passed order on those terms. It is not in dispute that each of the petitioners have already appeared for the respective examination held on lst December, 2003. It is also not in dispute that each of the petitioners has exhausted one attempt by appearing in the examination held in July, 2003. In other words, if the petitioners were to succeed in this petition, they would be entitled to appear for the examinations already held in December, 2003 being second chance provided under OA-16.15 as the last chance.

7. This petition is resisted by the respondents by filing detailed reply. Learned counsel appearing for the respondents have opposed the stand taken on behalf of the petitioners. According to the respondents, the new Ordinance has no application to the present case. It is submitted that the petitioners would be governed by the provisions of the old Ordinance as amended on 22nd April, 2002 and each of them having exhausted the maximum attempts provided therein and no further indulgence can be shown. It is on that reasoning that the petitioners were not entitled to appear in the exams which were scheduled on 1st December, 2003. This is the limited contoversy involved in the present petition.

8. Having considered the rival submissions, we have no hesitation in taking the view that the new Ordinance as issued by the university being OA-16 will and ought to govern the field. This view is reinforced from the preamble of the new Ordinance which provides that this Ordinance shall apply to all University examinations and shall replace any similar which provides that this Ordinance shall apply to all University examinations and shall replace any similar provision existing earlier under any other Ordinance.

It cannot be disputed that the new Ordinance was brought into effect so as to bring in uniformity across all courses offered by the University. If that was the intent behind the new Ordinance, we fail to

understand as to how the said Ordinance will have no application to the case of the petitioners. We have already adverted to the relevant provision in the new Ordinance providing that First University Examinations (Semester I) as can be discerned from OA-16.9.

Whereas OA-16.13 provides for duration for the completion of the course. We will not be required to examine the purport of this provision because the point in issue in the present case is one of provision regarding maximum attempts available to the students.

That issue can be resolved only with reference to OA-16.14 r/w OA-16.15. Indeed OA-16.14 provides for completion of the First University Examination (Semester I) in a maximum four attempts within a period of three years from the date of admission to the course. The petitioners No.1 to 10 have been admitted to the course from academic year 2001-2002.

Three years period as referable to this provision would lapse in September, 2004, as the petitioners were admitted sometime in September, 2001. In that sense, the said petitioners were entitled to appear for the First University Examination. Besides, the said provisions also stipulates that maximum four attempts However, in view of oA-16.15 the petitioners were to get two additional chances as they were students admitted in academic year 2001-2002.

Understood thus, we have no doubt in our mind that OA-16.15 would qualify the petitioners no.1 to 10 to take two additional chances on and from coming into force of the new Ordinance on 11.12.2002. It is not in dispute that the petitioners have already exhausted one chance in July, 2003. In our view, the petitioners would be entitled to one more chance/attempt in view of OA-16.15 which these Petitioners have now exhausted by appearing for the examinations held on 1st December, 2003. Understood thus, insofar as petitioners No.1 to 10 are concerned, they would succeed in getting the relief in terms of prayer clause (A) except the bracketed portion of the Writ Petition, which reads thus :- " (A) This Hon’bleCourt be pleased toissue a writ of mandamusor a writ in the natureof mandamus or any otherappropriate writ, orderof direction, commandingthe Respondents topermit Petitioner Nos.1to 10 to answerSemester-I and semesterIII without applying theOrdinances dated13/5/2002 (and11/12/2002) to thePetitioner Nos.1 to 10."

As we have already permitted the said petitioners to appear for the examination which was scheduled on 1st December, 2003, the University would process their papers and declare their results accordingly.

9. Insofar as petitioners No.11 to 13 are concerned, their prayer is to issue directions to the respondents to allow them to appear in Semester II which was scheduled on 1st December, 2003. All those petitioners were admitted in July, 2000. We have already held that the new Ordinance OA-16 would replace all previous Ordinances and also govern the

Conclusion

case of these petitioners. Even with regard to these petitioners, when they had secured admission in July, 2000 there was no restriction either with regard to maximum duration to complete the course and/or maximum attempts to pass the examination. Such restriction came to be introduced for the first time by amendment to Ordinance OC-10.42. However as mentioned earlier, that Ordinance stands replaced by the new Ordinance.

The University has declined permission to the petitioners No.11 to 13 to appear in Semester III

Examination on, in our view, incorrect understanding of the new Ordinance, that the said petitioners have already exhausted maximum number of attempts in terms of the old Ordinance. This view overlooks the purport of OA-16.15 which expressly provides for students who got admission during 2001-2002 and earlier who have not completed the course within the available duration prescribed under OA-16.13 shall be given two additional chances for the completion of the course. Since the petitioners qualify the requirement of being students admitted prior to the year 2001-2002 this provision became applicable and on account of which these petitioners were entitled to two additional chances on and from coming into force of new Ordinance on 11.12.2002. Even with regard to these petitioners, chances on and from coming into force of new Ordinance on 11.12.2002. Even with regard to these petitioners, it is not in dispute that they have already exhausted one attempt in July, 2003. Although the University had declined permission to these petitioners, pursuant to our Order dated November 29, 2003, even these petitioners have appeared for the examination but their results were subject to the outcome of this petition. As observed earlier, even these petitioners are entitled to two additional chances and the second and last chance has been exhausted by them by appearing in the examination held on 1st December,

2003. In that view of the matter, even these petitioners ought to succeed in terms of prayer clause (B) except the bracketed portion which reads thus :- " (B) This Hon’bleCourt be further pleasedto issue a writ ofmandamus or a writ in

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the nature of mandamusor any other appropriatewrit, order ordirection, commandingthe Respondents topermit the PetitionerNos.11 to 13 to answerthe Semester-II withoutapplying the Ordinancedated 13/5/2002 (and11/12/2002) to thePetitioner Nos.11 to 13"

Accordingly the respondents shall process the examination papers of the petitioners No.11 to 13 and proceed to declare the results accordingly.

10. In the circumstances, this Writ Petition succeeds on the above terms. No order as to costs.

A.M. KHANWILKAR, J.

P.V. HARDAS, J.