- (1.) ASHOK Bhushan, J. This special appeal has been preferred against the judgment dated 4th December, 2002 given in writ petition No. 27582 of 2002, Kumar Gandhrva v. Principal, Madan Mohan Malviya Engineering College, Gorakhpur and others), allowing the writ petition filed by respondents No. 1 to 6.
(2.) WE have heard Sri Neeraj Tiwari, learned Counsel appearing for the appellant-University, Sri H. R. Mishra learned Counsel appearing for contesting respondents No. 1 to 6 and Sri Ramesh Upadhyaya appearing for respondents No. 7 and 8. Facts giving rise to this special appeal are not much in dispute. Respondents No. 1 to 6 are students of bachelor of technology course studying in Madan Mohan Malviya Engineering College, Gorakhpur. By notice dated 7th July, 2002, University issued a list of students of bachelor of technology first year and second year along with the names of certain other students who were debarred from appearing in second semester examination which was commencing from 8th July, 2002 because their attendance was less than 60%. The names of respondents No. 1 to 6 were included in the said notice. Writ petition was filed by respondents No. 1 to 6 praying for quashing the notice dated 7th July, 2002. A writ of mandamus was also sought commanding the respondents to permit the petitioners (respondents No. 1 to 6) to appear in the examination of second semester of bachelor of technology first year which had already commenced on 9th July, 2002. In the writ petition counter affidavit was filed by Madan Mohan Malviya Engineering College in which it was stated that U. P. Technical University, Lucknow had framed ordinances for bachelor of technology course. It was stated in the counter-affidavit that ordinances required the students to attend all the lectures, tutorials, practicals and other prescribed curriculum. It provides that attendance can be condoned up to 25% on medical ground or other genuine reasons. Ordinances further provides relaxation up to 15% by Principal/dean/director of the Institution to the students who have absented with prior permission, for the reasons acceptable to the Head of the Institution. It was stated that list of 55 students was issued by the notice dated 7-7-2002 who were stopped from appearing in the examination due to shortage of attendance. It was further stated that writ petitioners even did not have average of 60% in both semesters. The writ petitioners also pleaded before the learned single Judge that two students, namely, Abhisekh Srivastava of second year computer science and another Gaurav Anand Srivastava of first year computer science who did not have 60% attendance were permitted to appear in the examination. The said facts were stated in a supplementary affidavit filed in the writ petition. The learned single Judge by an interim order directed that writ petitioners be provisionally permitted to appear in the examination. It was further directed, however, the result shall not be declared without leave of the Court. The writ petition was finally allowed by learned single Judge question the notice dated 7-7-2002 so far as it related to the writ petitioners. The learned single Judge also directed for declaration of the result and further directed the college to do the needful with regard to those papers in which the petitioners could not appear. The said judgment of learned single Judge has been challenged by this special appeal. The Counsel for the appellant has raised following submissions in support of the special appeal: (i) Under ordinances framed by the U. P. Technical University, Lucknow maximum condonation of attendance permissible is 25%+15%, hence a student not having attendance of atleast 60% cannot be permitted to appear in the examination. The writ petitioners, admittedly, having not achieved 60% attendance in second semester and even in average of both the semesters, were rightly not permitted to appear in the examination. (ii) The fact two students who did not have 60% attendance were permitted to appear by the college even if true, could not have been made basis for issuing a writ in favour of the writ petitioners since an irregularity committed earlier cannot be directed to be repeated by Court. Plea of discrimination is not available when it is based on a decision which was not in accordance with law. In support of the aforesaid submission, the learned Counsel for the appellant has relied on several judgments of the apex Court and this Court which will be referred while dealing with the submission.
(3.) THE Counsel appearing for the College who was respondent in the writ petition and had opposed the writ petition supported the case taken by the appellant and justified its decision to stop the writ petitioners from appearing in the second semester examination. Sri H. R. Mishra, learned Counsel appearing for respondents No. 1 to 6 (writ petitioners) supported the judgment of learned single Judge and submitted that action of the university in directing two students, as mentioned above, to appear in the examination was clearly discriminatory and arbitrary and the writ petitioners were also entitled for same treatment by the University and no error was committed by the learned single Judge in allowing the writ petition. Reference to circular dated 30th May, 2002 issued by the Vice-Chancellor of U. P. Technical University was also made. Learned Counsel also stated that writ petitioners having already permitted to appear by interim order by this Court in several papers of first semester, it is in the interest of justice that the order of learned single Judge be not interfered with.;