JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the petitioner and Sri Neeraj Tiwari for the respondents.
2. The Counsel for petitioner submits that under U.P. Technical University Ordinance for Bachelor of Technology Programmes which has been approved by academic council in its meeting dated 20th Sep. 2006 and has been made effective from the session 2006-07, the petitioner is eligible for declaration of his result and appear in 4th year without passing the carry over papers or clearing 1st year examinations.
3. He has also relied upon the judgment in Pravesh Kumar Dubey v. University of Kanpur and Anr. 1990 All L.J. -832, wherein it has been held that the student who have been declared passed by inadvertence of University authorities and appeared for next year examination, the University is estopped from refusing to declare his result on the ground that he had failed in previous examination and his result is to be declared.
4. He has also relied Miss Sanqeeta Srivastava. v. Prof. U.N. Singh and Ors. . In this case the Court was considering the question of equitable estoppel. In that case, inaction by the University resulted in admission to non eligible candidate. It was held that the principle of equitable estoppel operated and the University could not refuse her from appearing in the examination when the candidate had placed all facts before the University and had no committed any fraud or misrepresentation. It was further held that the ordinance of the University permitted grant of exemption in certain cases and therefore non eligibility of the student would amount to mere irregularity and would not be ultra vires of the ordinance. In that case, ordinance of Delhi University was under consideration by the Court.
5. Counsel for the petitioner then relied Ravinder Pal Jindal v. Punjabi University, Patiala 1990 (2) Services Law Reporter 332. In that case the petitioner was LI.B. student, who could not appear in the first paper of company law of third semester on account of illness. He sought permission from the University to appear in the next examination and permission was granted to him to appear in the said paper in the examination to be held on 30.3.1988. The petitioner appeared but could not succeed, hence the petitioner was not allowed to appear in that paper in the next examination. Thereafter, the petitioner was also allowed to join the future course of law i.e. 5th and 6th semester. It was held that the petitioner was entitled for appearing in the said paper within a period of five years from the date of joining the 1st semester and the order disallowing him to appear in the said paper was set aside.
6. Another case which has been relied by the Counsel for petitioner is Amiya Krishna and Anr. v. Dr. Bhem Rao Ambedkar University. Agra and Anr. 2007 (2) ESC 1105 (Alld.). In that case, the petitioner was not allowed to appear in the regular second year examination of B.D.S. course because of delay in declaration of the result of supplementary examination. The Court held that delay was caused by respondent university and the student was not at fault. Hence the petitioner was permitted to appear in the examination.
7. Lastly, the Counsel for petitioner has relied on Sanatan Gauda v. Berhampur University and Ors. . In that case question of estoppel was considered by the Court. The candidate was admitted to law course by law college. The University also permitted him to appear in pre-law and intermediate Law examinations. He was also admitted to final year course. In that context, the Court held that refusal to declare result by the University on ground of ineligibility to be admitted to law course, was barred by estoppel.
8. In Kum. Bhanu Priya v. Union of India and Ors. 2007 (3) ESC 1802 (All), the petitioner had secured 174 marks in entrance examination conducted for admission. Candidates securing lesser marks than the petitioner were granted admission by the authority. In that circumstance, action of the University was held to be illegal. Since the course has been already commenced, no direction was issued for admission or permit her to appear in B. Com. examination 2006-07. However, college was directed to pay cost of Rs. 25000/- to the petitioner for spoiling one academic year of her career.
9. The cases cited by the Counsel for the petitioner are not applicable to the facts of the present case.
In Pravesh Kumar Dubev (supra), student was erroneously declared passed by inadvertence of the University authorities, hence University estopped from refusing to declare his subsequent result.
Miss Sanqeeta Srivastava (supra) was also a case of inaction by the University which is not the position in the present case.
10. Similarly the case of Ravinder Pal Jindal (supra) is also distinguishable from the facts of the present case. In that case, the University had given admission to the petitioner in 5th and 6th semester without his having passed earlier one paper in 3rd semester. In those circumstances, the University was directed to allow the petitioner to appear in the examination in the paper he had failed.
The case of Amiya Krishna (supra) was a case of delay in declaration of the result, which is also not applicable in the instant case.
11. As regards the case of Kum. Bhanu Priya (supra), in that cas students securing lesser marks than the petitioner in the Entrance Examination were granted admission, which is not the controversy in the instant case.
12. In the case of Sanatan Gauda (supra), the appellant had passed M.A. examination in July 1981 securing more than 40% of the total marks. In 1983 he secured admission in Ganjam Law College for three years Law course. At the time of admission, he had submitted his mark sheet alongwith his M.A. degree certificate. The appellant completed his first year course known as Pre Law Course and in 1984 he was promoted to the second year "Intermediate Law Course". In 1985 the appellant appeared for Pre Law and Inter Law examination held by Berampur University to which the Ganjam Law College is affiliated and was admitted to the Final Law course in the same college but his results for the Pre Law and Inter Law examinations were not declared. The appellant had also made representations to the Bar Council of India and the Administrator of Berhampur University, who replied that sine the appellant had secured less than 39.5 % marks in his M.A. degree examination, he was not eligible for admission to the law Course. In was in that context that the Apex Court had decided that once a candidate had been admitted in Law course and had passed Pre Law and Intermediate law examinations, he was entitled to declaration of result of the final year.
13. In the instant case, it is not in dispute that the petitioner had been admitted in B.Tech. course of session 2004 of U.P. Technical University. It is also not in dispute that the petitioner did not clear all papers of 1st year examination i.e. 1st and 2nd semester. Though the petitioner has given names of some students in paragraph 12 & 13 of the writ petition who are said to have been promoted but the same has been denied by the University that these students have been promoted alongwith the petitioner and they all have cleared their first year examinations i.e. 1st and 2nd semester whereas the petitioner is the only student who has not cleared all papers of the first year. According to the Counsel for the University, this relaxation has been given to the petitioners under powers of Ordinance 23 applicable at that time.
14. Therefore, no case of discrimination has been made out by the petitioner. Those students who have been granted promotion by relaxation for appearing in 2nd to 4th year, they all have cleared first year examinations.
15. This Dein9 the position, this Court is not inclined to interfere in the matter. The Counsel for the University states that as soon as the petitioner clears all papers of the first year, his result of third year will be declared which has been withheld in accordance with the Ordinance and if the petitioner is declared passed, he will be given admission. The petitioner may clear all papers of the 1st year examination if he so desires. No student can be permitted to be promoted in the next semester in contravention of the Ordinance. Once relaxation has been granted, he should clear all papers of the 1st year examinations.
The writ petition is dismissed. No order as to costs.