K.C. Agrawal, J.
1. Shashi Kant Mall the petitioner, passed the Intermediate Examination conducted by the U. P. Board of High School and Intermediate Education in Science in First Division securing 75.6% marks in the subjects offered by him. He applied for admission in Bachelor of Technology (Civil) in G. B. Pant Krishi Evam Pra-tiyogik Vishwavidyalaya, Pantnagar (Naini Tal) (hereinafter referred to as the 'Pantnagar University').
2. On 28-7-1980, the petitioner learnt that he had not been admitted to the Course. Immediately, the petitioner contacted the University Authorities and found that as the petitioner had passed the Intermediate Examination, which is the prescribed minimum eligibility examination, in two attempts 3 per cent marks were liable to be deducted from the overall percentage of marks secured by him in the eligibility examination for determining his merit for admission. The petitioner submmitted an application clarifying that he had not passed the prescribed minimum eligibility examination in two attempts. He pointed out that after passing the High School examination in 1977, the petitioner ioined intermediate in 1978. In that year, the petitioner could not appear at the First Year examination due to his illness. Subsequently, he passed First Year and Second Year successively in 1979 and 1980 respectively. As the petitioner was not admitted he filed the present petition in this Court on 2-9-1980.
3. The ground taken mainly in this petition was that the admission had been refused to the petitioner by wrongly deducting 3 per cent marks from the over-all percentage of marks secured by him in the eligibility examination for determining his merit for admission.
4. A counter-affidavit has been filed on behalf of the Pantnagar University. The fact that the University Authorities acted mala fide or maliciously in deducting 3 per cent marks, was denied as incorrect. The plea taken was that as the petitioner had not passed the Intermediate examination in a single attempt, the University could deduct 3 per cent of the aggregate marks secured by him. In this connection, the University further pointed out that as the explanation offered by the petitioner for having not appeared in the year 1.978 at the First Year Examination was not given within the time allowed for filling in the forms for admission, the petitioner could not subsequently supply the said information and get the admission.
5. The sole controversy in the present writ petition is whether the Pantnagar University was entitled to deduct 3 per cent marks on the plea that as the petitioner had not passed the prescribed minimum eligibility examination in one attempt, his 3 per cent marks were liable to be deducted.
6. For appreciating the point which arises for decision in this writ petition we may make brief reference to the 'Regulations dealing with admission.' Paragraph 4 of the Regulations provides that the academic year July to June Was to be divided into three academic terms, roughly, of fourteen weeks duration each, known as trimesters. Paragraph 5 provides that admission to every degree programme shall be made at the commencement of the First Trimester of each academic year, except in the cases enumerated in this paragraph. Since we are not concerned with those exceptions, the same may not be dealt with. Parapraph 6 lays down the requirement of making an application for admission to a degree programme to the Registrar in the prescribed form. Paragraph 10 provides the minimum eligibility qualifications for admission to the various academic programmes to be laid down by the Academic Council every year in advance.
7. In the present case, the minimum eligibility examination provided for' admission is to be found at page 26 of the Information Brochure for Under Graduate Students 1980-81. Under Head (B) Civil/Electrical/Mechanical, the minimum eligibility examination was as under ;--
60 per cent marks in aggregate in any pne of the following examinations.
(a) Intermediate Science with Physics, chemistry and Mathematics.
(b) * * Or * *
(c) * * Or * *
(d) * * Or * *
(e) * * Or * *
8. Item 75 deals with the preparation of merit lists for the purposes of admission. At item 74 on page 26, the aforesaid Brochure lays down the minimum eligibility qualification. It reads--
'Candidates who have passed the qualifying examination in more than two attempts shall not be eligible for admission.'
9. The other relevant provision under which the University has deducted 3 per cent marks of the petitioner is to be found at page 19. Item No. 54 deals with the controversy. It reads as under :--
'No candidate who fails more than once in the prescribed minimum eligibi-lity examination shall be admitted to any degree programme of the University. In case any candidate has passed the prescribed minimum eligibility examination in two attempts, 3 per cent marks shall be deducted from the Over all percentage of marks secured by him in the eligibility examination for determining his merit for admission.'
10. The argument of the petitioner's learned counsel was that item 54, under which 3 per cent marks of the petitioner had been deducted from the overall percentage of marks secured by him in the eligibility examination (Intermediate Science) did not apply to the petitioner inasmuch as the petitioner had made only one attempt for passing the Intermediate examination and not two so as to entitle the University to deduct 3 per cent marks. The submission of the petitioner's learned counsel was that merely because the petitioner had passed the High School Examination in 1977, the University authorities arbitrarily and without making any enquiry arrived at a wrong decision that the petitioner had appeared in the Intermediate examination (both First Year and Second Year) in more than one attempt.
11. The question that needs consideration is whether the petitioner could be said to have passed the prescribed minimum examination in two attempts. In case the petitioner passed the said examination in two attempts then the University authorities were entitled to deduct 3 per cent marks from the overall marks secured by the petitioner in the eligibility examination. The petitioner, admittedly had passed the High School examination in the year 1977. But, there was nothing either before the University or before us to come to the conclusion that the Intermediate Final Examination had been passed by the petitioner in two attempts. Merely because the petitioner passed the High School in 1977, the University authorities were not right in jumping at the conclusion that he could not be said to have passed the Intermediate examination in one attempt. Failure to appear at the examination due to some reasons cannot be equated with making of an attempt and failing therein. For judging the merit of a candidate, 3 per cent marks could be deducted if he made two attempts for passing the Intermediate examination, but if that candidate does not appear in that examination at all, it is not possible to say that he has made any attempt in that year. Making of an attempt means appearing at an examination and failing therein. Nothing of the sort happened in the present case.
12. Learned counsel appearing for the Pantnagar University emphasised that in the application form filled in for admission, the petitioner was required to disclose this fact and as he had not informed the University about the reason for not appearing in 1978 in First year, the University acted bona fide in concluding that the petitioner passed the Intermediate Examination in more than one attempt. On being asked, the learned counsel for the University could not show us any column as against which the petitioner was required to make this mention. Since there was no requirement of mentioning this fact, the presumption drawn by the University was unjustified and illegal. If the University had any doubts, the petitioner should have been called upon to explain. In the absence of any explanation sought for the action of the University appears to us to be arbitrary. For applying Item 54 printed at page 19 of the Information Brochure, there should have been definite evidence before the University that the petitioner had passed the prescribed minimum eligibility examination in two attempts. In fact when the petitioner learnt about the reason on account of which he had not been admitted the petitioner immediately informed the Registrar about the reason due to which he could not appear in 1978. Instead of promptly acting upon the said information and admitting the petitioner to the course to which the admission had been sought for, the matter was delayed. This compelled the petitioner to rush to this Court.
13. At this place, we wish to mention that the Registrar of the University, who was present in the Court, informed us that Item 54 on page 19 of the Information Brochure could not apply to a candidate who does not appear at the examination on account of illness etc. This item used to be applied only to those cases where a candidate had actually appeared at the examination more than once. He admitted that in those cases 3 per cent marks had not been deducted from the overall percentage of marks secured by such candidates. The plea, however, taken was that since the petitioner sent the requisite information of his non-appearing in the examination of 1978, the University thought that the petitioner must have failed and, therefore, it deducted 3 per cent marks. This conclusion of the University was unwarranted and unjustified. As we have said above, either the University should have provided a space in the form for giving of such an information or should have sought for the same on a confusion arising. It was not justified in presuming against the petitioner without getting the information. The reasons of passing an examination in three years and not two could be many. The University was not justified in acting on its imagination and in denying the admission to which the petitioner was entitled to. Admittedly, the candidates securing less marks than the petitioner had been admitted in 1980-81.
14. To us, it also appears that non-appearance at the first year Examination of Intermediate was wholly immaterial for the purpose of applying Item 54. Admittedly, the marks secured in the two examinations i.e. First year and Second year, are not totalled and the minimum marks secured by a candidate only at the Intermediate Final Examination are taken into account for judging the merit for admission. Since the First Year marks are not taken into account, the sensible interpretation can only be that if a candidate has failed more than once in the Intermediate Final Examination. Which is also the minimum eligibility examination, his 3 per cent marks would be liable to be deducted from the overall percentage of marks secured by him. Failure of such a candidate to appear at the First Year examination or not passing it in one attempt is wholly immaterial. To us, this appears to be an irrelevant consideration.
15. Having thus found that the petitioner had been wrongfully denied the admission, we are of opinion that the Pantnagar University was guided by irrelevant considerations in refusing to admit the petitioner. Exercise of a power for an improper purpose includes not only a case of malice or personal dishonesty on the part of the officials but also that of mistaken interpretation by a public authority of what it is empowered to do. The petitioner was not admitted on account of mistaken interpretation and due to wrong action of the University authorities.
16. The question that arises now is about the relief which may be granted in this petition. The petitioner had applied for admission for the academic year 1980-81. That academic year is, admittedly, over and the next academic year 1981-82 has started. Sri S. N. Yerma, learned counsel appearing for the Pantnagar University, pointed out that the method of admission now applicable for the year 1981-82 is different from that of the previous year. In the previous years, admissions were to be made in accordance with the merit lists prepared on the basis of the marks secured at the eligibility examination, whereas from the year 1981-82 every candidate is required to appear at the written test. The relevant provision is to be found in the Information Brochure of the year 1981-82 the relevant portion of which is as under :
'Note : Admissions to B. Tech Programme in all branches at this University as given above will be made on the basis of joint competitive entrance examination to be conducted by the Motilal Nehru Regional Engineering College, Allahabad,'
17. Relying upon the aforesaid changed method, counsel urged that the petitioner since had not appeared at the entrance examination, the writ petition could not be allowed. At this place, another difficulty pointed out by the learned counsel for the University was about the minimum class attendance. He referred to us, Regulation 30 (a) and pointed out that each student is required to have minimum of eighty five per cent attendance in each Course in each Trimester. It was urged that as the present session, i. e. 1981-82 has commenced, the petitioner would not be able to complete the minimum class attendance and, therefore, admitting the petitioner at B. Tech. (Civil Engineering) would be meaningless. In that connection counsel also pointed out that the Dean concerned could condone shortage in attendance up to 5 per cent and in special cases the Vice-Chancellor had power to condone shortage in attendance up to 10 per cent. But in the present case, the petitioner's attendance since is not likely to qualify him for the examination the petitioner was not entitled to any writ being issued to him.
18. There is no doubt that a change has been brought about in the method of admission from the academic sessions 1981-82. It is also correct that the petitioner has not appeared at the Entrance Examination in this year. But, the question is should the petitioner be made to suffer on account of the mistake of the University. By making a wrong interpretation of the Regulations and deduction of marks, the petitioner was denied the admission in the year 1980-81. Had the University not committed this mistake, the petitioner would have been admitted in that year. Since the petitioner had been denied admission due to the mistake of the University, the interest of justice requires a direction to be issued to the University for admitting the petitioner in the academic year 1981-82. This may be against the present system of admission, but the case of the petitioner is exceptional, in the circumstances pointed out above. He is entitled to a direction being issued to the University. The Registrar agreed before us that on a direction being issued by this Court, the University shall abide by it and admit the petitioner to the course for which he applied in 1980-81.
19. So far as the attendance is concerned, the University session started on 24-8-1981. Hence, that difficulty should not come in the way of the petitioner in getting the relief in this Writ.
20. In the result, the writ petition succeeds and is allowed. The Govind Ballabh Pant Krishi Evam Pratiyogik Vishwavidyalaya, Pantnagar (Naini Tal) is directed to admit the petitioner in Bachelor of Technology (Civil) in the Session 1981-82 forthwith. In the circumstances, there shall be no order as to costs.
21. Let a copy of this judgment be issued to the petitioner today to enable him to get the admission in the Pantnagar University at the earliest on payment of usual charges.