S.K. MAL LODHA, J. - (1.)PETITIONER Adarsh Mohnot has filed this writ petition under Art. 226 of the Constitution for a direction against the University of Jodhpur, Jodhpur (for short, the University') to declare that he has passed in LL.B. Final Examination, which was held in 1983.
(2.)THE petitioner appeared at the First Examination in Law in 1981. He was declared eligible for Supplementary Examination in Paper II : Law of Torts (General Principles and Specific Wrongs) vide Anx. 1. He appeared at the Supplementary Examination. A revised marks sheet (Anx 2) was issued and he was shown to have passed by grace. It is clear from Anx.2 that he obtained 283 marks out of 600 marks, though minimum pass marks were 288. THE petitioner appeared in the Second Examination in Law. He was declared to have passed by grace vide Anx.3. He obtained in aggregate 284 marks out of 600, though minimum pass marks were 288. THE petitioner appeared at the LL.B. Final Examination, 1983 and was declared failed. A perusal of the marks sheet Anx.4 relating to LL.B.Final Examination, 1983 shows that the petitioner has passed in all the subjects and secured more than 36% marks in each of the papers. He, however, secured 859 marks in aggregate at the three Examinations whereas minimum pass marks are 864. An in aggregate five marks were short, he was shown "failed".
It has been stated by the petitioner that as he has declared to have passed by grace in the First and Second Examinations in Law, he shall be deemed to have obtained the minimum pass marks 288 in aggregate in both First and Second Examinations in Law. For declaring him failed, in LL.B. Final Examination, 1983. the marks actually obtained by him have only been taken into account and this according to the petitioner, is manifestly incorrect. The other grounds taken in the petition are : (1) that the petitioner cannot be declared to have failed in the LL.B. Final Examination because according to para 10(i) of the syllabus of Bachelor of Laws, in the event of the petitioner not obtained minimum aggregate marks, he should have been declared eligible to appear in the paper in which he has obtained the lowest marks, and since this was not done and he was declared to have passed by grace, the University cannot declare the petitioner as "failed" when it did not award supplementary to the petitioner in First and Second Examinations in Law, and (2) that by issuing marks-sheets (Anx.2 and 3) in respect of the First and Second Examinations in Law, the petitioner was made to believe that he has secured the minimum aggregate marks, i.e. 288 marks in each of the aforesaid two Examinations and that position cannot be retrieved. In other words, the University having thus declared the petitioner to have passed by grace, it cannot now be permitted to act to the prejudice of the petitioner inasmuch as the principle of equitable estoppel is attracted. On the aforesaid grounds, it was prayed by the petitioner that the University may be directed to declare that the petitioner has passed in LL.B. Final Examination 1983.

A show cause notice was issued. The University has filed reply to it. The writ petition was contested principally on the ground that according to r.2(b) of the Rules, for the Awards of Grace Marks, it is the actual marks obtained by a candidate, which determine the aggregate marks and the actual marks obtained by the candidate are only taken into consideration for the purpose of arriving at the aggregate marks of the First, Second and Final Examinations in Law and as the petitioner had obtained 859 marks, which fell short by 5 marks in the aggregate in order to obtain 48% which is essential for a pass i.e. to obtain Second Division, the petitioner was declared failed. On the basis of Ordinance 359 of the Jodhpur University, it was averred by the University that according to it a candidate is required to obtain 48% marks in aggregate in order to pass i.e. to obtain Second Division and that as the petitioner has not obtained 48% marks in aggregate in the First and Second Examinations in Law, he could not be declared to have passed.

On January 4, 1984, as prayed by the learned counsel for the parties, it was ordered that the writ petition shall finally be disposed of at the admission stage.

On January 16, 1984, Mr. H.M. Parekh, learned counsel for the University submitted that he wants to seek instructions from the University whether it wants to submit separate reply in addition to the one, which has already been filed. On January 23,1984, learned counsel for the University stated that the University does not want to file any additional reply in addition to the one which has already been filed.

(3.)I have heard Mr. M. Mridul, learned counsel for the petitioner and Mr. H.M. Parekh. learned counsel for the University.
It was contended by Mr. M. Mridul that as the petitioner was declared to have passed by grace in the First and Second Examinations in Law, he should be considered to have obtained the minimum 288 marks in aggregate in each of the aforesaid examinations, and as the petitioner has already obtained in aggregate 292 marks out of 600 marks which are a little more than 48% marks in aggregate, he could not have been declared having failed in the final Examination in law, 1983. It was also contended that when the University has declared the petitioner in the First and Second Examination in Law to have passed by grace, now, that cannot operate to the prejudice of the petitioner.

Mr. H.M. Parekh, learned counsel for the University, contended that according to r. 2(b) of the Rules and Ordinance 359 of the Jodhpur University, the petitioner cannot be said to have passed in the aggregate and the giving of grace marks in the statement of marks Anx. 2 and Anx 3 cannot be considered that actual grace marks which were short for the minimum aggregate marks, have actually been awarded.