V.K.SHUKLA, J. - (1.) IN Writ Petition No - 48219 of 2002 and Writ Petition No. 55529 of 2002, prayer has been made for issuing a writ in the nature of mandamus commanding the respondents to take special examination of the petitioners in the subjects in which they have failed and hold the next semester examination only thereafter, and permit the students to pass in all subjects of 4 years B. Tech. Course in 7 years. In Writ Petition No. 15865 of 2003, prayer has been made for issuing a writ in the nature of mandamus to permit the petitioners to attend 4th and 6th semester classes and fill their examination forms for 4th and 6th semester examination, and further for quashing Ordinance Nos. 9.3 and 10.1 (Annexures -12 and 16 to the writ petition), and further for issuing a writ in the nature of mandamus directing the respondents to extend the benefit of 15 grace marks to petitioner No. 3 as awarded to the students of B. Tech. course.
(2.) BRIEF background of the case is that the petitioners after being selected in U.P. State Engineering Admission Test, were accorded admission in respective Engineering Colleges, and thereafter each one of the petitioners has been pursuing his study. U.P. Technical University Act, 2000 came into being on 8.5.2000. The aforesaid U.P. Act No. 23 of 2000 has been promulgated with a view to provide for establishment of a Technical University in the State for the advancement and development of Technical education and other matters connected therewith. Sections 6, 14, 19, 21, 29 and 30 of the said Act being relevant are quoted below : '6. The University shall have the following powers and duties, namely : (a) to provide and upgrade education, training and research in technical education and to create entrepreneurship and a conducive environment for pursuit of technical education in close cooperation with Industries ; (b) to admit any college to privileges of affiliation or to enlarge the privileges of any college already affiliated, or to withdraw or curtail any such privilege and to guide and control the work of such colleges ; (c) to institute and confer degree or other academic distinctions ; (d) to hold examinations for, and to grant and confer degrees or other academic distinctions to, and on, persons, who : (i) have pursued a course or study in a college ; or (ii) have carried on research in a college recognised in that behalf by the University, under conditions laid down in the Regulations ; (e) to confer honorary degree or other academic distinction in the manner and under conditions laid down in the Regulations ; (f) to institute and award fellowships, scholarships, studentships, exhibitions and prizes in accordance with the Regulations ; (g) to demand and receive such fees and other charges as may be fixed by the Regulations ; (h) to make provisions for the advancement of technical education amongst classes and communities which are educationally backward ; (i) to make provisions for : (i) the maintenance of National Cadet Corps or other similar organisations ; (ii) physical and military training ; and (iii) sorts and athletic clubs ; (j) to make appointments of officers and other employees of the University to the posts created by the State Government; (k) to receive gifts, grants, donations or benefactions from the State Government or the Central Government and to receive bequests, donations or transfers of movable or immovable property from testators, donors or transferors, as the case may be, and to hold and manage the same (l) to lay down the conditions of affiliation of colleges and to satisfy itself by periodical inspection that such conditions are safe guard ; (m) to co -operate orcollaborate with otherUniversities andauthorities in suchmanner and for suchpurpose as the Universitymay determine from timeto time ; (n) to do all such other acts or things whether incidental to the powers aforesaid or not, as may be necessary to further the objects of the University. 14. (1) The Controller of Examination shall be a whole time officer of the University. (2) The Controller of Examination shall be appointed by the State Government by notification and his remuneration and allowances shall be paid by the University. (3) The Controller of Examination shall be responsible for the due custody of the records pertaining to his work. He shall be ex -officio Secretary of the Examination Committee of the University and shall be bound to place before such Committee all such Information as may be necessary for transaction of its business. He shall also perform such other duties as may be prescribed by the Regulations or required, from time to time, by the Executive Council or the Vice -Chancellor but he shall not, by virtue of this sub -section, be entitled to vote. He may require, from any college, the production of such return or the furnishing of such information as may be necessary for the discharge of his duties. (4) Subject to the superintendence of the Vice -Chancellor, the Controller of Examinations shall have administrative control over the employees working under him and have, in this regard, all the powers of the Registrar, (5) Subject to the superintendence of the Examinations Committee, the Controller of Examinations shall conduct the Examinations and make all other arrangements therefor and be responsible for the due execution of all processes connected therewith. (6) The Controller of Examinations shall not be offered nor shall he accept any remuneration for any work in the University, except in accordance with the order of the State Government. (7) While the Controller of Examinations is for any reason unable to act or the office of Controller of Examinations is vacant, all the duties of the office shall be performed by such person as may be appointed by the Vice -Chancellor, until the Controller of Examinations resumes his duties or, as the case may be, the vacancy is filled. 19. (1) The Academic Council shall be the principal academic body of the University and shall, subject to the provisions of this Act and the Regulations, have the control and general regulation of, and be responsible for the maintenance of standard of instruction, education and examination in the University and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Regulations and may advise the Executive Council on all academic matters. (2) The Academic Council shall consist of the following persons, namely : (a) The Vice -Chancellor Chairman(b) The Pro -Vice -Chancellor Member(c) Five suchprincipals ofcolleges as arenot members ofthe ExecutiveCouncil Member(d) One Head of theDepartment ofthe University ofRoorkee nominatedby Vice -Chancellorof that University Member(e) One Head of theDepartment ofthe IndianInstitute ofTechnology, Kanpurnominated bythe Director ofthe saidInstitute. Member (3) The term of office of the members referred to in Clause (c) of Sub -section (2) shall be one year. 21. (1) There shall be an Examination Committee in the University, the constitution of which shall be such as may be provided for in the Regulations. (2) The Committee shall supervise generally all the examinations of the University, including moderation and tabulation and perform the following other functions, namely : (a) to appoint examiners and moderations and, if necessary to remove them ; (b) to review from time to time the results of the University examinations and submission of reports, thereon to the Academic Council ; (c) to make recommendations to the Academic Council for the improvement of the examination system ; (d) to scrutinize the list of examiners proposed by the Board of Studies, finalise the same and declare the result of the University. (3) The examination committee may appoint such number of subcommittee as it thinks fit, and in particular, may delegate to any one or more persons of subcommittee, the power to deal with and decide cases relating to the use of unfair means by the examinees. (4) Notwithstanding anything contained in this Act it shall be lawful for the Examination Committee or as the case may be, for a sub -committee or any person to whom the Examination Committee has delegated its power in this behalf under Sub -section (3), to debar an examinee from future examinations of the University, if in its or his opinion, such examinee is guilty of using unfair means at any such examination. (5) Subject to the provisions of this Act and the Regulations, the Examination Committee may issue such directions, as it considers necessary for the arrangement for conducted of the examinations. 29. (1) The First Regulations of the University shall be made by the State Government by notification. (2) The Executive Council may, from time to time, make new or additional Regulations or may amend or repeal the Regulations referred to in Sub -section (1) : Provided that the Executive Council shall not make, amend or repeal any Regulations affecting the status, power or constitution of any authority of the University until such authority has been given a reasonable opportunity to express its opinion in writing on the proposed changes and any opinion so expressed has been considered by the Executive Council. (3) Notwithstanding anything contained in the foregoing subsections, the State Government may in order to implement any decision taken by it in the interest of learning, teaching or research on the basis of any suggestion or recommendations of the University Grants Commission or All India Council for Technical Education or the State or National Education Policy require the Executive Council to make new or additional Regulations and amend or repeal the Regulations referred to in Sub -section (1) or Sub -section (2) within a specified time and if the Executive Council fails to comply with such requirement the State Government may make new or additional Regulations or amend or repeal the Regulations referred to in Sub -section (1) or Sub -section (2). 30. Subject to the other provisions of this Act, Regulations may provide for any matters relating to the University and shall in particular, provide for : (a) the appointment, powers and duties of the officers of the University ; (b) the constitution of Pension or Provident Fund and the establishment of an insurance scheme for the benefit of the officers and other employees of the University ; (c) the conferment of honorary degrees ; (d) the withdrawal of degrees and other academic distinctions ; (e) the conditions under which colleges may be admitted to the privileges of affiliation by the University and the conditions under which any such privilege may be withdrawn ; (f) the degrees and otheracademic distinctions tobe awarded by theUniversity, thequalification for the sameand the amounts to betaken relating to thegranting and obtaining thesame ; (g) the fees to be charged forcourses of the study in theUniversity and foradmission to theexamination degrees andother academicdistinctions of theUniversity ; (h) the conditions of award of fellowships, scholarships, studentships, medals and prizes ; (i) the conduct of examinations including terms of office and manner of appointment and duties of examining bodies, examiners and moderators ; (j) the power to removeofficers (excludingChancellor) andemployees of theUniversity and theiremoluments and termsand conditions of service ; (k) all other matters which by this Act are to be or may be provided for by the Regulations.' Academic Council of the University has framed Ordinances, wherein duration of the course and procedure for selection has been provided for. Ordinance No. 4.2 provides that a candidate, who has failed to pass or has not appeared at or has not been permitted to appear at the examination of 1st and/or IInd semester of the first year twice and is also ineligible for the carryover system shall not be allowed to continue the studies further. Ordinance 4.3 provides that a candidate admitted has to complete his course within seven years and both the contingencies, it has been provided that in case the candidate fails to fulfil pre -requisite terms and conditions, then he shall not be allowed to continue his studies further. Ordinance No. 9 provides for promotion and Ordinance No. 10 relates to carryover system. Relevant Ordinances are being quoted below : '1. Eligibility: 1.1. For admission through Entrance Examination : (a) For admission to B. Tech. 1st semester, a candidate should have passed the 10+2 examination of the Board of High School and Intermediate Education U.P. or its equivalent with Mathematics, Physics and Chemistry as subjects. For Agriculture Engineering Branch, a candidate with Agriculture subjects at 10+2 level is also eligible. (b) For admission to B. Tech. IIIrd semester : (i) A candidate who has passed 3 -4 years diploma (with 60% marks) recognised by the U.P. Board of Technical Education in any branch of Engineering/Technology except Agriculture Engineering is eligible for admission to any branch of Engineering/ Technology except Agriculture Engineering. (ii) A candidate who has passed 3 -4 years diploma (with 60%marks) recognized bythe U.P. Board ofTechnical Education inAgriculture Engineeringis eligible for admissionto AgricultureEngineering. 2.2. For direct admission made at institution/college level after entrance examination counselling : The eligibility criteria for direct admission on seats remaining vacant after entrance examination counselling shall be such as may be notified by the State Government/ University from time to time. 2.3. The Academic Council shall have power to amend or repeal the eligibility criteria laid down at Clause 2.1 and 2.2, as per the guidelines of All India Council for Technical Education (A.I.C.T.E.) and/or the direction of the State Government from time to 'time.'
(3.) DURATION : 4.1. Total duration of the B. Tech. course shall be 4 years, each year comprising two semesters. Each semester shall normally have teaching of the 90 working days or as prescribed by A.I.C.T.E. from time to time. 4.2. A candidate who has failed to pass or has not appeared or has not been permitted to appear at the examination of 1st and/or IInd semester of the first year twice and is also ineligible for the carryover system (clause 10) shall not be allowed to continue the studies further. 4.3. The maximum time allowed for a candidate admitted in Ist/IInd semester for completing the B. Tech. course shall be 7 (seven)/5 (five) years respectively. If a candidate at any stage of his/her study is found unable to complete it within the said time, he/she shall not be allowed to continue the studies further. 9. Promotion : 9.1. A candidate satisfying all the requirement under clause 8 shall be promoted to the next academic year of study. 9.2. (a) A candidate who fails to satisfy the requirements of Clause 8.4, 8.5, and 8.7 in not more than 6 subjects (theory and/or practical subjects on the basis of combined result of both semester examinations of a particular academic year shall be eligible for provisional promotion to the next academic year of study provided he/she either satisfies the requirement of Clause 8.6 or shall be able to satisfy the requirement of Clause 8.6 on the basis of securing minimum passing marks in the subjects in which he/she failed in the carryover examination. (b) If a candidate satisfies the requirement of Clauses 8.4, 8.5 and 8.7 but fails to satisfy Clause 8.6 he/she shall be eligible for promotion with carry over. He/she may choose upto a maximum of any six theory papers of that particular year of his/her choice to pass the examination. 9.3. A candidate shall not be promoted to third year unless he/she passes all the examinations of first year. Similarly, he/she shall not be promoted to fourth year unless he/she passes all the examinations of second year. 9.4. All other candidates shall be declared fail and shall be required to repeat the whole academic year after taking re -admission or opting for ex -studentship. This facility is, however, subject to the time limits stipulated in Clause 4. 10. Carryover System : 10.1. (a) A candidate who satisfies the requirements of Clause 9.2 (a) will be required to appear in those theory papers/practicals in which he/she failed in subsequent examinations of the same semester. However, a candidate of first year will be allowed to appear in the second semester examination in those theory/practical subjects in which he/she failed in the first semester examination, provided scheduled examination of those theory/ practical subjects are held. (b) A candidate satisfying Clause 9.2 (b) shall be required to exercise his/her choice upto a maximum of six theory papers in which he/she desires to appear in the examination to fulfil the requirements of Clause 8.6. He/she shall inform the college about his/her choice within 15 days after the start of new session. 10.2. Marks obtained in a subject in carryover examination shall replace the original marks of the same subject. 16. Grace marks : 16.1. A candidate may be awarded grace marks upto a maximum of total 10 marks, in maximum four subjects including theory papers, practicals, project, seminar, industrial training and/or aggregate marks in each academic year provided he/she can be declared to have passed the academic year by the award of grace marks.' 4. Each one of the petitioners appeared in the examination and failed, and as per terms and conditions of the Ordinance, they were not entitled to continue their further studies. As in the past, U.P. Technical University had held special examination, as such the petitioners were agitating for holding of special examination, and when the University Authorities did not accept the demand of the petitioners, then at this juncture, writ petition has been filed praying therein for holding of special examinations.;