JUDGMENT
1. Above intra-Court Special Appeals, as provided under Chapter VIII of Rules of Court, arise from common judgment and order dated 3.11.2004 passed by learned single Judge in Civil Misc. Writ Petition No. 34 of 2004 (Urmila Singh v. Deen Dayal Upadhaya Gorakhpur University through V.C. Gorakhpur and Ors.).
2. To appreciate the controversy raised in Special Appeals, salient facts of the case may be recapitulated.
3. Following events and dates relevant to decide the issues raised in this case are not disputed and given below :
4. The University authorities, after giving show cause notice and holding some enquiry came to the conclusion that the petitioner was not entitled to appear in LL.B. III Year (VI Semester) examination and withheld her admission card.
5. Urmila Singh, filed writ petition No. 34 of 2004 under Article 226, Constitution of India, against Deen Dayal Upadhaya Gorakhpur University and its other authorities/ officers including, namely, Rewati Raman Pandey, Mahesh Chandra, Rajendra Singh and G.S. Tewari the then Vice-Chancellor, Registrar, Examination Controller, Dean Faculty of Law, Head Department of Law impleaded as respondent Nos. 1 to 9 in the writ petition and claimed following reliefs :
(a) issue writ order or direction in the nature of mandamus commanding and directing the respondent Nos. 1 to 4 to appear in the LL.B. third year Sixth Semester Examination Paper Scheduled for 5.1.2004 and 8.1.2004 as per examination notification dated 9/10.12.2003 (Annexure 7) and further command and direct the respondent Nos. 1 to 4 and 6 to 9 to hold special examination for the petitioner for the paper scheduled for 2.1.2004 in which the respondent university deliberately and maliciously restrained the petitioner from appearing in the examination on the aforesaid date and further direct the respondents to deliver the admit card to the petitioner in compliance of the order passed by respondent No. 3 (Annexure 10), the declaration of the result shall be subject to the final decision of the Hon'ble High Court in the instant petition.
(b) issue writ, order or direction in the nature of mandamus commanding and directing the respondent Nos. 1 to 4 and 6 to 9 to pay compensation/ damages amounting to Rs. 10.00 lacs from their personal pocket for playing with the life of the female candidate and causing physical and mental harassment and tormentation.
6. This Court passed an interim order dated 5.1.2004, which reads :
"Notice on behalf of respondent Nos. 1 to 5 has been accepted by Smt. Sunita Agarwal holding brief of Sri Dilip Gupta who prays for and is granted three weeks' time to file counter-affidavit. One week thereafter is allowed to the petitioner to file rejoinder affidavit. The petitioner shall take steps to serve respondent Nos. 6 to 9 by registered post within three days. Office shall send notice fixing 9.2.2004.
List on 9.2.2004.
The petitioner is a student of LL.B. IIIrd Year VI Semester. Her examination started on 2.1.2004 but she was not permitted to appear in the examination, which commenced on 2.1.2004. When father of the petitioner made a representation to Controller of the Examination, he made an endorsement on the representation itself to the effect that the petitioner's Roll No. is 164231 and her admit card has not been withheld by the Examination Department of the University, a copy of which has been filed as Annexure 10 to the writ petition. In view of this fact the petitioner is entitled to appear provisionally in examination of other papers of LL.B. IIIrd Year VI Semester Examination, which are scheduled to be held today at 1.30 p.m. and onwards. The question regarding holding re-examination of the petitioner in the paper of which examination was held on 2.1.2004 would be considered at the time of hearing of the writ petition.
Until further orders of this Court the respondents are directed to permit the petitioner to appear in LL.B. IIIrd Year VI Semester Examination which is to be held today at 1.30 p.m. and in other papers which are to be held subsequently and issue necessary admit card to her today enabling her to appear at the examination.
Smt. Sunita Agarwal shall inform the University by telephone about the order passed by this Court at 12.30 p.m. today.
A certified copy of this order shall be issued to learned Counsel for the parties on payment of usual charges today."
7. Subsequently, petitioner filed an application in the writ petition praying for direction to hold re-examination of LL.B. III year VI Semester paper (which was originally scheduled for 2.1.2004 but missed by her), and to declare/publish LL.B. III year Examination of the Petitioner (Roll No. 16423). Record of the writ petition shows that an application dated 10.3.2004, containing aforesaid prayer, along with supplementary affidavit as well as an amendment application dated 18.4.2004 praying for amendment in the writ petition in order to incorporate the prayer for issuing a writ of certiorari to quash order dated 6.4.2004 (Annexure RA 5 to the Rejoinder Affidavit), show cause notice dated 13.2.2004 (Annexure SA 4 to the supplementary affidavit) and order dated 1.1.2004 (Annexure CA 4 to the counter-affidavit), by means of which petitioner was deprived from appearing in the examination of LL.B. III year (Vlth Semester) and her admission in LL.B. Course itself was cancelled. We find that no orders have been passed on the aforesaid application.
8. Case of the petitioner, in brief, is that the respondents University cannot cancel her admission to LL.B. course or deprive from appearing in LL.B. IIIrd year (Vlth Semester) Examination on this allege charge of her being enrolled and pursuing Ph.D. simultaneously with LL.B. Course or due to her appointment working as Assistant Teacher.
9. Case of the University precisely was that petitioner was not entitled/eligible for seeking admission to LL.B. Course right from the beginning when she sought admission in LL.B. 1st year (1999-2000 course) on 28.1.2000 since she was already enrolled as research scholar and pursuing Ph.D. course (which is a Post-Graduate Course) w.e.f. November 30, 1998 and that LL.B. being a full-fledged course. Petitioner could not take employment while pursuing LL.B. Course. According to the petitioner, Ph.D. is not Post Graduate course. The case of the petitioner also appears to be that there has been no concealment or misrepresentation on this score while she submitted her application for admission to LL.B. 1st year Course. Photocopy of the petitioner's application for LL.B. 1st year has been filed as Annexure 2 to the affidavit filed in support of the Stay application in the present Special Appeal (called the affidavit). Photocopy of the application for seeking LL.B. 1st year course shows that there is no specific column or blank declaration requiring a candidate discloses that he/she has joined any other academic course or he/she pursuing any other academic course including Ph.D. Petitioner contends that she had disclosed her M.A. degree in the relevant table given in the application form and there was no other column or instruction to declare her registration as Research Scholar.
10. Clause 5 of the Examination (General) (i) and Clause 7 of the ordinance, which are relevant for the present read :
"Clause 5.--No candidate shall be allowed to appear in more than one degree examination in one and the same year :
Provided that no candidate shall be allowed to combine with LL.B. any other course of graduate or postgraduate studies.
Clause 7.--No candidate shall be allowed to combine law with other graduate or Post-Graduate studies. But a candidate may be allowed to pursue the course of study for the Diploma in English examination of Gorakhpur University provided that there is no conflict with the time-table of teaching in the law Department."
11. It is admitted by learned Counsel for the petitioner that there has been no amendment or change in the afore-quoted provisions at any relevant point of time.
12. It may be noted that University authorities sought to explain by way of clarification by adding word 'Research ¼'kks/k½ in the Brochure entering application form for LL.B. III Year Course. It is, however, not relevant since relevant ordinance has not been amended and anything given in application form/Brochure which is only an instruction (following statutory provision of Act, Statute Ordinance) cannot over-ride Ordinance.
13. Para 12 and 13 of the affidavit, filed in supply of Stay Application in the Special Appeal, 'called Affidavit', it is mentioned that University decided to form a Sub-Committee vide University letter dated 30.9.2002 (Annexure 10 to the affidavit). University itself thought it fit to clarify in the University Brochure containing 'Application form' in question, that Ph.D. Course was included in 'Post-Graduate' Course and a Ph.D. student was not eligible for admission to LL.B. Course. It, therefore, cannot be said that the petitioner had acted with ulterior motives or deliberately tried to mislead the University by not disclosing that she was already registered/enrolled as Ph.D. student.
14. As experience shows and otherwise also students are not in a position to lay their hands on 'University Hand Book' containing 'ordinance' on the subject and it is, therefore, not possible for them and to know 'relevant regulation'/instructions with regard to 'admission' to a particular course. Students generally go by the instructions in the Application Form or the Brochure for Admission sold to them, wherein it is not mentioned that student should also read relevant Ordinances and how it can be obtained.
15. Hence, it is advisable that University may provide 'specific column' in the application form itself asking the applicant to declare 'requisite facts' regarding pursuing any other course including Ph.D./Diploma Course, so as to avoid any anomaly in future.
16. However, as an abundant caution, we require the University to provide specified column in the 'application form' for LL.B. Course itself requiring a candidate to disclose and declare as to whether he is pursuing any other academic courses and, if so, to disclose the details of the same.
Learned single Judge in the impugned judgment has observed :
"From the aforesaid clauses it is apparent that there was only a prohibition to combine law with any other Graduate or Post Graduate Course in the same year. The prohibition was not applicable for combining law with the registration as a Research Scholar. Registration as a Research Scholar is not a under-graduate or post graduate course of study."
17. Learned Counsels for the Appellant/University, however, submits that the learned single Judge is not correct to hold that "Registration as Research Scholar is not a under-Graduate or Post Graduate Course of study."
18. We are, therefore, required to interpret the expression "Post Graduate Course Studies" or Post Graduate "Ordinance of the University of Gorakhpur, Gorakhpur" 1985 at page 130-Appendix IX, Part II titled as Degrees and Examinations of other Universities and Bodies Recognised by this University :
"For admission to Post-Graduate : M.A., M.Sc., Ph. D., D; Litt., D.Sc., LL.M., M. Com., and M.Sc. (Ag.) course and also B.Ed, and LL.B. Education New Delhi."
19. From the aforesaid provision it is clear that, apart from M.A., M.Sc., M. Com. and M.Sc. (Ag.) Course, 'Post Graduate Course, includes Ph.D., D. Litt., D.Sc., L.L.M.
20. Similar expression finds place in the Ordinance and Regulation relating to other Universities, viz. University of Kanpur-Hand-Book (Vol. 1) page 359, Meerut University Hand Book 1971-72 and Agra University Hand-Book 1970-71, which read :
"For admission to Post-Graduate Course i.e. M.A., M. Stat. M.Sc., Ph. D., D. Litt., D. Sc., B.Ed., M.Ed., M.Sc., M.D., LL.B., LL.M., M.Com., M.Sc. {Ag.) M.V. Sc. and M.Sc. (Tech.)".
21. Term "Post Graduate" has been defined in (1) Webster's Third New International Dictionary :
"engaged in study following graduation from High School"
Or "a student continuing his education after graduation"
(2) Chambers Twentieth Century dictionary :
"belonging to study pursued after graduation"
(3) Cambridge Dictionary of American English :
"A student who is doing advanced studies after already obtaining one degree."
22. From the aforesaid, it is clear that 'Ph.D.' is a course which is done after Graduation and it is a 'Post-Graduate' study. Term 'Post Graduate' cannot be confined, only to a course which is being pursued after Graduation. Any course which is done after Graduation and even after immediately degree of "Post-Graduation" shall be a Post-Graduation Course.
23. With utmost modesty at our command, we are unable to agree with the finding of the learned single Judge and to that extent we are unable to sustain the impugned judgment.
24. The other objection raised by the University appellant is on the ground of her taking up job on 27.5.2003 as Assistant Teacher during LL.B. IIIrd Year Course. The appellant have, however, failed to show any provision from the University Act 1973, First statute or the Ordinance of the University placing such a restriction. Condition to attend 75% lecturers and tutorials, in our opinion, does not automatically lead to a conclusion that no student, who enters into employment renders himself unfit for continuing studies of LL.B. Course. It is possible that employer may suitably change duty hours of the concerned person or permit to continue his studies on leave.
25. University authorities, in the instant case vis-a-vis the petitioner were estopped in law to cancel her LL.B. admission at such a belated stage or prevent her from appearing in LL.B. Course or her LL.B. III Year (VI Semester) Examination.
26. In the facts and circumstances of the case we find that no useful purpose shall otherwise be served when petitioner has already perused her LL.B. Course and passed in First Division (may be under interim order of this Court). The direction given by learned single Judge in the impugned judgment and order dated 3.11.2004 directing the University to permit the petitioner-respondent (Urmila Singh) to appear in LL.B. Vth Semester Examination is affirmed though on different ground.
27. On 7.12.2004 this Court passed following orders :
"Heard at some length. No time is left. This appeal is directed to be listed for further hearing/final disposal.
Considering the facts of the present case, particularly the matter in between the Deen Dayal Upadhaya Gorakhpur University, Gorakhpur and the student, who is pursuing LL.B. third year course, but failed to appear in LL.B. third year exam (6th semester) only, we direct the University to hold examination of the petitioner-respondent (Urmila Singh d/o (Dr.) Anirudh Prasad) LL.B. third year (6th semester) which she failed to appear on 2.1.2004 and declare the result within one month from today. In order to achieve confidence that the petitioner-respondent is not being victimised in any manner and the examination is being held in a fair and impartial manner, her answer books may be examined by competent teacher outside the Gorakhpur University.
We further direct that until further orders, the directions given by learned single Judge vide order dated 3.11.2004 for realising damages against respondent No. 6 to 9 in writ petition No. 34 of 2004 shall not be given effect to and shall remain kept in abeyance.
List on 10.1.2005 before this Bench at 1.45 p.m."
28. Learned Counsel for the parties, joined in making statement that Urmila Singh has successfully passed her LL.B. III year (VI Semester) Examination and has secured First Division Marks.
29. Learned Counsel for the appellant, in the last, assailed the finding of the learned single Judge with respect to mala Jide and the direction imposing costs Rs. 10,000/-in the judgment and order dated 3.11.2004.
30. We are informed that respondent No. 6 Rewati Raman Pandey, the then Vice-Chancellor, died during the pendency of the writ petition. The said fact was somehow not brought to the notice of the learned single Judge. Learned single Judge has observed :
"From the various allegations which have been made against respondents 6 to 9 who have been impleaded in individual capacity and further in view of the fact that the said respondents have not filed counter-affidavit denying the allegations so made despite notice having been issued to the said respondents under the orders of this Court, there is little or no hesitation for this Court to hold that the allegations made by the petitioner against the said respondents 6 to 9 are correct."
31. Observation made by the learned single Judge, namely, that respondent Nos. 6 to 9 who was impleaded in individual capacity had not filed counter-affidavit denying allegations made against them is per se incorrect and against record. Record shows that on behalf of respondent Nos. 1, 2, 3, 4 and 9 a joint counter-affidavit and a supplementary counter-affidavit was filed. Respondent Nos. 1, 2, 3, 4 and 9 in the writ petition are appellant Nos. 1, 2, 3, 4 and 6 in the Special Appeal.
32. In that view, finding on the issue of mala fide, thus cannot be sustained. Plea of mala Jide raised on behalf of (Urmila Singh) against appellants is negatived.
33. In the result, the impugned judgment and order dated 3.11.2004 in writ petition No. 34 of 2004 (Urmila Singh v. Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur and Ors.), is affirmed partly to the extent it directed the University and its authorities to permit the petitioner to appear in LL.B. III year (VI Semester) Examination. Since the petitioner has already appeared in all the papers of LL.B. III year (VI Semester) Examination under interim order in writ petition and also order dated 7.12.2004 in this Special Appeal (quoted above), we direct the University authorities to declare the said result and issue mark-sheet/degree in normal course (without reference to the litigation in the High Court or of this judgment) to Ms. Urmila Singh/respondent No. 1 in the Special Appeal.
34. Special Appeal fails to the above extent and impugned judgment of learned single Judge in this respect is affirmed though on different ground.
35. The impugned judgment and order dated 3.11.2004 in the writ petition, to the extent it directed the concerned respondents for payment of cost (appellant Nos. 1, 2, 3, 4 and 6) is hereby set aside. No cost is now required to be paid by appellants to respondent-Urmila Singh under the impugned judgment and order dated 3.11.2004.
36. Special Appeals stand partly allowed to the above extent.
37. In the entirety of the facts and considering the circumstances of the case, there shall be no order as to costs.