G.K. Misra, C.J.
1. The petitioner a student of the University -- College of Engineering, Burla -- had appeared for the FinalEngineering Degree Examination of the Sambalpur University held in April, 1969. Hisroll No. is 473. He secured marks in different subjects as would appear from Annexure III extracted below:--
SAMBALPUR UNIVERSITY.University College of Engineering, BurlaMark sheet.Name of candidate, Shri; Sachida Nan la Tripathy Roll No.473, B, Sc. (Engineering)Part II (Electrical Engineering Branch)-5 Year. April 1969.
Sl. No.Subject.Uni. Exam.Coll. Exam.TotalPass marksUni. Exam.Coll. Exam.Total
1.Electrical Machine Design, Partt II802010080872892.Generation and Protection802010080857423.Utilisation with traction802010030408544.Power plant Practice802010080886445.Industrial organization and workshop management8020100804015556.High Voltage' Engineering802010030408487.Industrial electronics802010080192218.Mathematics, Paper VIII80201008062865
(B) Sessional Work(a)Electrical Laboratory1001006068)
)420(b)Electronics Laboratory1006059(c)Electrical engineering, Design Project I1006070(d)Electrical Engineering, Design Project II200120133(e)Approved extra-mural training or practical training125 90(f)25% of Grand total in B. Sc. (Eng.) Part I Examination375
Sd/ B. S. Chakrabarti
University College of Engineering, Burla'
It could appear from the above marksheet that he failed in the subject 'Industrial Electronics' securing 21 marks out of 100 though the pass mark was 30. Similarly, he failed in Sessional Work in the subject Electronics Laboratory securing 59 marks out of 100, though the pass mark was 60.
2. The petitioner's case is that- both the aforesaid two subjects will be treated as one subject and that under Regulation 9 (3) (ii) in Chapter XX-A of the Utkal University Regulations adopted by the Sambalpur University he was to be allowed to appear in the University Examination held on 29-8-3939 as he secured not less than 50% of marks in the particular Sessional work and not less than 65% marks in that group of Sessional work. In fact, thepetitioner secured more than 50% in the Sessional work relating to Electronics Laboratory and more than 65% in the aggregate in the group of sessional work (B). After the petitioner failed in the first University Examination he approached the Principal of the College (opposite Party No. 4) who advised him to appear as a non-collegiate student in the second examination to be held in the month of August 1969; the principal expressed this view in support of the petitioner's case in his letter to the Vice-Chancellor dated 19-8-1969 (Annexure II). The petitioner accordingly submitted the application and deposited the necessary fee. The Vice-Chancellor, however, by a letter dated 16-8-1969 had intimated that the petitioner could not sit for the second University Examination to be held on 29-8-1969. The petitioner further asserts that in 1968 two candidates Satyanarayan Sahu and Dologobind Sethi were allowed to sit for the second examination though they had failed in two subjects and that the decision of the University not to allow the petitioner to sit for the second examination is hit by Article 14 of the Constitution.
3. On the aforesaid averment the petitioner prayed for a writ of mandamus directing the Vice-Chancellor of Sambalpur University (opposite party No. 1) and the other University authorities to issue admit card to him to appear at the second examination.
4. The application was admitted on 28-8-1969 and an interim direction was given to the University authorities to permit the petitioner to appear at the said examination but the results were not to be published without further orders from this Court.
5. In response to the notice, the Vice-Chancellor of the University has filed a counter-affidavit, most of the facts are not controverted but it is averred that the written paper 'Industrial Electronics' and the Sessional work in 'Electronics Laboratory' constitute two different subjects and not one subject and that the petitioner was not a non-collegiate candidate. It was pointed out that Regulation 9 (3) (ii) has absolutely no application to the petitioner's case and that he would be governed by Regulation 5 (3) occurring in the very same Chapter. The expression 'qualifying marks' in Regulation 5 (3) means pass mark and as the petitioner did not secure pass mark in the Sessional work in 'Electronics Laboratory', the Regulation 5 (3) had no application to his case and consequently the petitioner was not allowed to sit for the Second examination. It was admitted that Sri Satyanarayan Sahu and Sri Dologobind Sethi were allowed to sit for the Second Examination in 1068 by mistake even though they were not entitled to sit at that examination. The matter has since come to the notice of the syndicate and is now under examination. The mistake committed in respect of these two candidates cannot justify the extension of a privilege contrary to the Regulations.
6. The contention regarding the applicability of Article 14 has no substance. As pointed out in the counter-affidavit, the aforesaid two candidates were permitted to sit at the Second. Examination by mistake and no advantage can be taken of the same for construing the Regulation differently. It cannot be contended that because a mistake was committed in one case, the same should be allowed to continue in other cases. See AIR 1966 SC 1547, Para. 15, State of Orissa v. Durga Charan Das.
7. The real point for determination is: what is the meaning of the expression 'qualifying marks' in Regulation 5 (3) which runs thus:
'5 (3) The following categories of candidates shall be eligible to appear at a Second Examination provided that they have secured qualifying marks in the Sessional Work:
(a) all failed candidates;
(b) candidates who have failed in one subject only; and
(c) candidates who were registered for the First Examination on payment of the prescribed fee but could not appear.
8. From this Regulation it is clear that a candidate shall not be eligible to appear at the Second Examination unless he has secured pass mark in each of the subject included within 'Sessional Work.' If he fails in any of the subjects referred to in clauses (a) to (f) under 'Sessional Work' he is not entitled to take advantage of Regulation 5 (3).
Three categories have been referred to in Regulation 5 (3). Clause (c) is intelligible, but it is difficult to appreciate the distinction between clause (a) and clause ,(b). Candidates who have failed in one subject only as referred to in Clause (b) would ordinarily come within the ambit of 'all failed candidates' referred to in Clause (a). As the statute cannot be guilty of redundancy, Clause (a) must be given a construction so as to exclude Clause (b) from coming within its ambit. The expression 'all failed candidates' was probably not intended to cover cases of candidates who failed in one or more subjects in the written papers. Possibly it purports to refer to candidates who have failed in thej aggregate. ' In any event as clarification of this point is not essential for the determination of the question in issue we need not express any final opinion on the matter.
Coming back to Clause (b) it clearly covers cases of candidates who have failed in one subject only. In the context the word 'subject' in clause (b) refers to one of the written papers; otherwise, the proviso would be meaningless. Ry virtue of the proviso Regulation 5 (3) will have application only if the candidate has secured pass marks in the Sessional Work: ,
9. In this case, the petitioner has not secured pass marks in the Sessional work in 'Electronics Laboratory', even though he failed only in one of the written papers in 'Industrial Electronics'. Regulation 5 (3) cannot, therefore, be invoked in aid of his case.
10. To get over this difficulty Mr. Sahu placed reliance on Regulation 9 (3) (ii) referred to in the Principal's letter (Annexure II) which runs thus:--
'If a candidate passes in the aggregate and in all other subjects except the Sessional work in one subject only, he may be allowed to pass provided he obtained not less than 50% in that sessional work and not less than 65% (390 marks) in that group of Sessional work'.
This Regulation has no application to an eligibility for appearance at the Second Examination. It prescribes conditions as to whena candidate may be allowed to pass even though he has failed in certain subjects. Those conditions are that the candidate must pass in the aggregate and in all other written papers except one subject in sessional work. If those conditions are fulfilled he would be allowed to pass provided he has secured not less than 50% in the Sessional work and not less than 65% in the group of sessional work. This has no application to the petitioner as he has failed in one of the written papers. If he had not failed in one of the written papers, on the strength of this Regulation he could have been declared to have passed in the First Examination.
11. Reliance was placed on Regulation 9 (3) (ii) to indicate the meaning of the expression. 'qualifying marks' used in Regulation 5 (3). This is futile. Regulation 9 (3) (ii) does not use the expression 'qualifying marks' at all. The question of following the same, for being applied to Regulation 5 (3) does not arise. Nor does Regulation 9 (3) (ii) prescribe qualifying marks for appearing in the second examination.
12. On the aforesaid analysis, conclusion is irresistible that the petitioner was not entitled to appear at the Second Examination held in August under Regulation 5 (3).
13. The writ application fails and is dismissed, but in the circumstances without costs.
It is further clarified that the petitioner's results are not to be published by the University, though he had been permitted to sit at the Second Examination by our order dated 28-8-1969.
14. I agree.