S.K. Mal Lodha, J.
1. Petitioner Amra Ram has filed this Writ Petition on i November 19, 1983 for issuing a direction to the University of Jodhpur, Jodhpur to hold special examination of practical including vivi voce Hydraulics Laboratory, Graphics Statics and Electronics Lab. of the petitioner of B.E. 3rd Year.
2. The petitioner is a student of B.E. 3rd year in the M.B.M. Engineering College, Jodhpur. The written examinations of the 2nd Ssmester (Mines) 3rd Year were held from May 16, 19 <3 to June 9, 1983. The petitioner appeared at the written examinations. He also appeared at the practical and the sessionals of all the papers except. (1) Hydraulics Laboratory; (2) Graphic Statics; and (3) Electronics Lab. The petitioner has completed the sessional. After the written examinations, the petitioner was sent for training at Singroli (M.P.). When he was returning from Singroli, he fell down from the running train and was injured. He was admitted in the M.G. Hospital on July 18, 1983 and he was discharged on August 23, 1983. In support of this, he has filed the photo stat copy of the discharge-ticket marked as Anx. 2. While the petitioner was indoor patient, he submitted an application on July 21, 1983 to the Vice-Chancellor of the University of Jodhpur to arrange for his examination in the hospital. That application was rejected by letter (Anx. 3) dated July 22, 1983. The petitioner has stated that one Shri Prahlad Ram, brought to his notice a news item, which appeared in the 'Rajasthan Patrika' dated September 24, 1983, in which it was stated that the Vice-Chancellor of the University is said to have made arrangements to hold examination of one student in the Hospital, where be was admitted with the injury in his hand and writer was provided to him. Having learnt about this news-item, the petitioner submitted an application praying that special examination may be arranged for him also. The copy of the application has been marked as Anx. 6. It was rejected vide letter (Anx. 7) dated October 8, 1983. The petitioner made enquiries also but he came to know that Prahlad Ram, who was student of B.E. 3rd Year, was injured in the accident, which had taken place in Hostel No. 5 and he was permitted to take written test in the M.G. Hospital from September 23, 1983 by being provided a writer. He, therefore, made another representation on October 10,1983 requesting that he may be permitted to take examination, as now he has become alright. The petitioner has mentioned in para. 7 of the writ petition, instances of Jas Ram Meena and Amolak Chand. He has, therefore, filed the writ petition for the direction to the non-petitioner as stated above, on the grounds: (1) that the petitioner has been subjected to the hostile discrimination, in as much as the case of the petitioner is identical with that of Prahlad Ram. He quoted the instances of Prahlad Ram and Amolak Chand; and (ii) that the petitioner will be put to irreparable harm, for, the University has abandoned the Semester System and introduced annual scheme and the petitioner will have to wait for atleast one year to take the examination and he could not take the practical of the aforesaid papers including viva voce test on account of the circumstances beyond his control, He has, therefore, filed the writ petition as aforesaid.
3. Show cause notice was ordered to be issued on November 11, 1983. Reply to the show cause notice was filed on November 30, 1983 contesting the writ petition. It was stated in the reply that the Syndicate of the University passed Resolution dated November 30,1980, by which it was decided that 'In future no re-examination should be held in any such case where a student fails to take an examination or part thereof on account of illness or any other personal reason whatsoever.' and in veiw of this Resolution of the Syndicate, no practical examination in the subjects referred to by the petitioner is possible. It was also stated that the examinations had taken place in July, 1983 and, therefore, no special practical examinations can be held, as prayed for by the petitioner.
4. I have heard Mr. Mridul for the petitioner and Mr. H.M. Parekh for the non-petitioner (University of Jodhpur, Jodhpur).
5. The main contentions raised by the learned Counsel for the petitioner are: (1) that the action of the University in refusing to hold special examination of Practical including Viva-Voce in Hydraulics Laboratory, Graphic Statics and Electronics Lab. of the petitioner of 3rd Year B.E., will cause irreparable harm to the petitioner, because when the examination of the petitioner was held, Semester System was prevailing in the University and so, even in failing one Semester, he could take examination in another Semester within a span of six months, but, now as the University has abandoned the Semester System and introduced Annud Scheme, the petitioner will have to wait at least for one year to take examination; and (2) that the action of the University in not permitting the petitioner to take the aforesaid examination while lying injured in the Hospital was plainly discriminatory and further that by not arranging special examination for the petitioner, discrimination has been practiced upon the petitioner because this has been done by the University in pursuance of the directions of the Court in Amarlal v. University of Jodhpur SB Civil Writ Petition No. 89/83 decided in February 1983 and Mrs. Kalpana Kumbhat v. University of Jodhpur (1).
6. Mr, H.M. Parekh, learned Counsel for the University has relied on Ordinance 90 of the Jodhpur University as well as on Resolution dated November 30, 1980 passed by the Syndicate of the University, in which it was decided that 'in future no re-examination should be held in any such. case where a student fails to take an examination or part thereof on account of illness or any other personal reason what so ever.' Mr. Parekh submitttd I that in these circumstances, no special examination in the practicals is possible. He reiterated what has been stated in the reply that 'practical examinations can only be held in the University,' and so it was not possible to : accede to the request made by the petitioner that practical examinations may be held in the Hospital. It will be useful here to excerpt the following from para 2 of the reply to the show cause notice:
The accident from which the petitioner suffered was really un-fortunate and University has all sympathies with the petitioner but it could not help in the matter as practical examination could not be held in the hospital.
As regards the point relating to discrimination, it was urged by the learned; counsel for the University that Prahlad Ram was admitted in the Hospital I with injury in hand and, therefore, in his case, during the examination, which I was going on, for a theory paper, a writer was provided to him. It was denied that any special examination was arranged for Jas Ram Meena. In regard to instances of Mrs. Kalpana Kumbhat and Amarlal, it was submitted that on account of extra-ordinary circumstances, which had accrued therein for complying with the directions of this Court, special examinations were conducted and that the case of the petitioner is not similar to those cases.
7. Ordinance 90 of the Jodhpur University, reads as under:
90. A candidate, who from sickness or other cause is unable to present himself for any examination, shall not receive a refund of the fee; provided that the Vice Chancellor may, for sufficient cause, permit the candidate to present himself/herself for the next ensuing examination without the payment of further fee. In such cases the candidate should make an application to the Registrar so as to reach him/her not earlier than the commencement of the examination and not latter than a month after the date of the commencement of the examination, at which the candidate was to appear, requesting to with to fee for the next examination. In all cases of sickness, a medical certificate from qualified medical practitioner shall be attached to the application.
Provided further a candidate who has already appeared at the practical (s). only three-fourth of the examination fee shall be carried over.
This has got nothing to do with the question, with which I am concerned in this writ petition, it merely relates to refund of examination-fee etc.
8. So far as the Resolution of the Syndicate dated November 30,1980 is concerned, it may be mentioned that it was considered in Mrs. Kalpana Kumbhat's case (1). After detailed examination, the learned Judge, in that case opined that the Resolution dated November 30, 1980 of the Syndicate fails to fulfil the test of reasonableness and that it smacks of arbitrariness. S.C. Agrawal, J. in Amarlal Ramrakhiani's case (supra), agreed with the reasons given the learned Judge in regard to the conclusion so far as the Resolution dated November 30, 1980 of the Syndicate is concerned. Having considered the reasoning given in the aforesaid two cases and adopting the same, I do not find any good reason to take a contrary view form the one taken by the learned Judges in the aforesaid two cases.
9 It will not be proper to decline relief to the petitioner on the basis of the aforesaid Resolution of the Syndicate.
10. It is not in dispute that the University has abandoned the Semester System introduced the Annual Scheme and if a direction to the University is not given to hold Special examination of practical including Viva-Voce in Hydraulic Laboratory, Graphic Statics and Electronics Lab. Of the petitioner B.E. 3rd Year, the petitioner will have to wait atleast for on year to take the Examination. According to the semester System, Which was prevalent at the time when the examination of the petitioner was held, the petitioner, even after having failed in one semester, could take examination in another semester to be held within a span of six months. In these to contend that in not holding special examination for the petition for the petitioner in regard to the practical including viva voce in the subject referred to above, the petitioner would be put to irreparable Harm.
11. So far as Prahlad Ram is concered, the University has stated that a writer provided to him in the Hospital during the course of examination when he was admitted in the Hospital during the course of account of hand-injury. At the most what can be said for the petitioner on account of hand-injury. At the most what can be said for the petitioner on the basis fo Prahlad Ram's case is that he was allowed to take written examination in the Hospital in asmuch as a writer was provided to him. The University has denied that any special examinations was conducted in the case of Jas Ram Meena. The petitioner has given an instance of Amolak Chand, who was student in the Mining Section. The averment for arranging special examination in case of Amolak Chand remains uncontroverted. In Mrs. Kalpana Kumbhat's case of (1) the learned single Judge allowed the write petition and held that refused on the part of the University to hold special practical examinations could not be sutained. The Univesity was directed to hold practical examination could not be sustained. The University to hold special practical examinations in M. Sc. (Zoology) of Mrs. Kalpana Kumbhat. Mr. Parekh, learned Counsel for the University, tried to distinguish this decision on the basis of Article 42 of the Constitution, which relates to maternity relief and according to him that is not attracted in the present case. A careful reading of Mrs. Kalpana Kumbhat's case (1) shows that the decision in that case was based on the denial of right of equality under Article 14 of the Constitution. Mrs. Kalpina Kumbhat was granted relief as she was discriminated.
12. In Amarlal Ramrakhiani's case (supra) the petitioner appeared in the written paper for the first semester of the fourth year in October, 1911 and passed the same and he appeared in the theory paper of the second semester of the 4th Year in June, 1982. The practical examinations for the first semester of the 4th Year were postponed and they were held along with the practical examinations of the second semester of the 4th year from August 15, to August 2, 1982. The petitioner appeared at the first and second practical examination of the second semester which were held on August 13 & August 14, 1982. But he could not appear at the subsequent practical examination on account of illness, viz, Jaundic and eye-flue. As he failed to appear in other three practical examinations the petitioner was declared failed. The representation made by him did not bear any fruit and therefore, he filed a writ petition, which was allowed and a direction was made to the University to hold practical examinations in which he could not appear on account of illness.
13. The petitioner appeared at the written examination and, thereafter, he was sent for training at Singroli (M.P.). When he was returning from Singroli, he ft 11 down from the running train and he was seriously injured and, therefore, he could not appear at the practical examinations including viva-voce. It is thus clear that the petitioner could not take practical examinations including vive-voce, on account of the circumstances beyond his control. The University had conducted, though in pursuance of the directions of this Court, practical examination in Kalpana Kumbhat's case (4) and Amarlal Ramrakhiani's case (supra). There is no good reason as to why the University should not arrange special examination of practical including viva-voce in Hydraulics Laboratory, Graphics Statics and Electronics Lab. of B H. 3rd Year in the case of Lie petitioner. As stated above, neither under Ordinance 90 of the Jodhpur University nor in the Resolution, special examination in practical in the aforesaid subjects, could be refused to the petitioner. In the past, the University had conducted special examinations in practicals, the instances of which have already been given above. In Amarlal Ramrakhiani's case (supra), instances of Miss Madhumati Maneria, Sushil Kumar Purohit and Mahendra Kumar Sharma have been given, in who cases, special examinations were held by the University. In these circumstances, I am disposed to think that the learned Counsel for the petitioner is right in contending that the petitioner has been unfairly discriminated in the matter of holding special practical examinations, even though it has held such special examinations for the students in similar circumstances.
14. For the aforesaid reasons, the writ is petition allowed and the University of Jodhpur is directed to hold, within a period of one month special examination of practicals including viva-voce in Hydraulics Laboratory, Graphis, Staticals and Electronice Lab. of B E. 3rd Year of the petitioner who could not appear on account of illness, and in the event he qualifies the aforesaid practical including viva-voce examination and being found eligible under the Regulation governing the same, he may be allowed to keep the term in the 4th Year of BE. Course.
15. In the circumstances of the case, the parties are left to bear their own costs of this writ petition.