Ashok Kumar Mathur, J.
1. This letters patent appeal is directed against the order of a learned Single Judge of this Court dated 7-3-1986.
2. The petitioner look admission in the B.E. Course on October 30, 1981 and appeared in the First Year Examination held in June 1982 but failed in two subjects and did not obtain 45% marks aggregate. He was not promoted to Second Year B. E. and was not allowed to keep terms He approached this Court by filing writ petition No. 484 of 1983 and under the orders of the court he was granted admission to Second Year B.E. provisionally and to take up the examination of Second Year B.E. with the facility to clear the papers of First Year B.E. The make up examination of First Year B.E was held in April 1983. The petitioner was declared passed in the First Year make-up examination on 24-8-1983 1-9-1983. The petitioner appeared in the Second Year B.E. examination held in October 1983 but failed. The Second Year Special examination of 1984 was not taken up by the petitioner. In November 1984, the petitioner took the examination of Second Year B.E. in which he failed in two units but obtained 45% marks in aggregate. In view of the decision of their Lordships of the Supreme Court in Kamlesh Khatri's case, the writ petition was dismissed. But it was ordered that the petitioner will be allowed to take advantage in pursuance of the interim order passed by this Couat. Against the order passed in a similar writ petition, the University preferred a special appeal No. 40 of 1985 University of Jodhpur v. Madendra Kewalia 1985 WLN (UC) 31. After the decision of that appeal the University passed an order dated March 4, 1985 and it was stated in that order that the petitioner has not passed the Second Year B.E. Examination, so he is entitled to appear as an Ex. Student in the Second Year B.E. Examination. The petitioner approached this court for clarificalion and this application was disposed of on 6-3-1985. Thereafter the University passed a fresh order dated 30-3-1985 wherein it was stated that as the petitioner has not passed the Second Year B. E. Examination in the year 1984, therefore, he can appear as an Ex-student in the Second Year B. E. Examination. This order dated 30-3-1983 was challenged by filing the present writ petition. The learned Single Judge after hearing both the parties quashed the order of the University dated 30-3-1985 and held that the petitioner is entitled to the benefit of A.T.K.T. and to keep terms under Clause 11 of the syllabus for Second Year B. E. Examination. Aggrieved against this order, the present appeal has been filed by the University,
3. Mr. Parekh, learned Counsel for the appellant-University submitted that clause 6 of the Syllabus has not been complied with by the respondent-petitioner, therefore, he is not entitled to the benefit of A.T.K.T. and the order of the learned Single Judge, therefore, deserves to be set aside.
4. We have gone through the order of the learned Single Judge and we are wholly in agreement with the view expressed by learned Single Judge. Once the petitioner has passed the First Year B.E. Examination may be by keeping terms he has qualified for Second Year B.E. Examination and has appeared in the Second Year B. E. Examination then it will be a futile exercise to turn back and say that clause 6 of the Syllabus has not been complied with Clause 6 reads as under:
6. (a). A candidate, who after passing First Year B.E. Examination for the BE. Degree of the University has attended a regular course of study for the whole academic year in the Faculty of Engineering, shall be eligible to appear at the second B. E. Examination which shall be common to all branches.
(b) Every candidate appearing for the Second B.E. Examination shall be required, to show a competent knowledge of the subjects as per examination scheme.
5. It is true that clause 6(a) requires that after passing the First Year B.E Examination the candidate has to appear in regular course of study for whole academic year in the Factulty of Engineering The petitioner has already passed the First B. E. Examination and he has been permitted to appear in Second Year B. E. but he failed to pass in all the units, therefore, he is entitled to the benefit of clause 11 to make up examination of Second Year B.E. in respect of the papers in which he failed in the 1985 B.E. Second Year Examination. Mr. Parekh submits that since he has not regularly attended the regular course of study for whole of the academic year, he cannot be permitted to keep trims. He can appear as an Ex-student for Second Year B. E. Examination. This submission of the learned Counsel for the petitioner cannot be countenanced for the reason that the candidate has passed the First Year B. E. Examination, he has studied the second year and he has been permitted to appear in the second year B.E. examination. But since he has failed to clear all the units therefore, in terms of Clause 11 he is entitled to the benefit of A.T.K.T. and he can make up the second year B.E examination in respect of the papers in which he has filed in the 1984 B.E. examination.
6. Learned counsel next submitted that the petitioner is permitted to appear in the second year B.E. examination in pursuance of the order of this Court, when the writ petition has been dismissed that would mean that the interim order passed by this Court stood set aside, as the interim order merged in the final order. So far as the proposition of law is concerned the same cannot be disputed. But while disposing of the writ petition the learned Single Judge on 18-1-1985 directed that despite the undertaking the petitioner respondent is allowed the benefit and advantage accrued to him in pursuance of the order of this Court whereby he was allowed to keep the terms. It was also ordered that the petitioner has appeared in the examination keeping in terms, the University is directed to declare his result and if he succeeds, then he shall be given the benefit thereof. Thus, it is not the case where no direction was finally given while disposing of the writ petition. But in the present case a positive direction was given while disposing of the writ petition of the petitioner that the petitioner will be allowed the benefit in pursuance of (be order of this Court. Since in pursuance of the order of this Court the petitioner appeared and certain benefits have accrued to him and while disposing of the writ petition finally such benefits have been confirmed. Thus, there is no legal bar so far as the petitioner is concerned in the present case. Parekh has also invited our attention to Mahendra Kewalia's case. But in the peculiar circumstances of case that case cannot provide any assistance to the appellant.
7. Thus in the result, we do not find any merit in this appeal and the same is dismissed.
8. The parties are left to bear their own costs.