M.B.Sharma, J. - (1.) THE petitioner in this case claimed the relief of a mercy chance in final year M.B.B.S. and the contention of the learned Counsel for the petitioner is that at any rate because it is the practice in the university to allow mercy chances, the petitioner should not be and could not be discriminated and a fifth chance to which he describes as 'Mercy chance' should have been allowed to the petitioner in one remaining paper of final year M.B.B.S.
(2.) THERE is no dispute that the Ordinances which applicable to the case of the petitioner and others like him are 0.275 -A and that may read as under: At the expiry of each period of four attempts including the examination at which the candidate appeared in all the subjects prescribed for the examination another period of the same duration will follow during which the provisions of Ordinance 275 above shall be applicable as regards passing the examination. N.B. - For the purpose of this Ordinance actual attempt availed of by the candidate will be taken into account provided that the cancellation of examination for using unfair means shall be treated as an attempt. A perusal of the above extracted Ordinance will show that a candidate in 2nd year or final year M.B.B.S. examination is entitled to have four attempts including the examination at which he first appeared to clear all the papers. But if he is unable to clear all the papers in four attempts, then he shall have to appear in all the papers and all the subjects at the time when he next appears at the examination. This is to be repeated which means that if after having made four attempts in any of the aforesaid three examinations a candidate is unable to pass in all the papers, he has to appear in whole of the examinations and if he again fails in some of the papers, then he has is entitled to have a chance. Thus, there is a mandate contained in the aforesaid Ordinances 275 and 275 -A of the University of Rajasthan that in case a candidate does not pass all papers in four attempts, then he must take the whole examinations. The contention of the learned Counsel for the petitioner is that there has been a practice in the University and the Vice Chancellor in exercise of discretionary powers has been allowing fifth and sixth chances to failed candidates. In support of his contention learned Counsel has referred to a few instances also and it may be stated at the very out set that from the instances cited by the petitioner in his petition as well as in rejoinder it appears that some mercy chances have been given to some of the candidates in some of the examinations. But it can be said that more attempts than four were allowed by the V.C. against any provision of the Ordinance. I have already extracted Ordinance 275 -A in the earlier part of this order and is said earlier that a bare reading of Ordinance will show that no more than four attempts to clear any part of the examination can be allowed. If the statutory provision as as it is, even the V.C. has no powers to grant any mercy chance and it appears to be reason that because of wrong or colourable exercise of powers and in view of the specific men date of the Ordinance making authority contained in Section 275 and 275 -A that one who is unable to clear any examination in one attempt than he will appear in whole of the examination, the V.C. in few cases allowed mercy chances, the matter was considered by the authorities of the University including the Syndicate and a decision was taken that no mercy chance shall be given to anybody. In this connection a reference may be made to the reply filed on behalf of the University and more so to the additional pleas. In para 2 it has been stated that the faculty of medicine and pharmaceuticals in its meeting held on 15th December 1990 resolved to recommend that no mercy chance be given by the University for passing any examination of the Faculty of Medicine. This recommendation of the Faculty was placed before the Academic Council in its meeting held on 12th and 13th January, 1991 through letter dated 10th January, 1991 from the Dean, Faculty of Medicine. The Academic Council, after considering the aforesaid recommendations, accepted the recommendation that no mercy chance be given to the students for passing in examination. The aforesaid recommendations of the Academic Council were also accepted by the Syndicate of the University in its meeting held on 25th February 1991. Thus, the position of law even before the aforesaid decision was clear and as said earlier under Order 275 and 275 -A of the University of Rajasthan no more chance could have been allowed then four attempts to clear any part of the examination and one who fails to pass the examination in four attempts including the original attempt was bound to appear in whole of the examination. Therefore, what was specific was only clarified because the V.C. was using his powers as said earlier against the provisions of the Ordinance. In this connection I will refer to the judgment of this Court in the case of Raj Gopal v. University of Rajasthan S.B. Civil Writ Petition No. 6145/1990 decided on 14th December 1990. This Court disposed of the aforesaid writ petition along with other writ petitions Vinod Kumar Saini v. University of Rajasthan S.B. Civil Writ petition No. 6146/1990. The court in that case was considering the case of the student in B.A.M.S. where also four attempts were only allowed and the court said that the mercy attempt which has been given by the Vice Chancellor to a candidate after exhausting four attempt was totally misplaced and these misplaced sympathies create un -necessary complications and give rise to the litigation. It was further observed that the University, which is a public body, must bear in mind that it has to act within the four corners of the statutory provisions contained in the Act and the Ordinances. It was also observed that the mercy attempt allowed to a candidate, named Shri Abdul Salam, did not give rise to any legal right to the petitioner to claim mercy. It will be therefore, clear that there being a specific provision like Ordinance 275 and 275 -A under which no more than four chance to a candidate can be allowed to clear any part of the examination and a candidate who fails to clear all the papers in four attempts is required to appear in whole of the examinations and even the V.C. has no powers to give any more chance and as said earlier even the V.C. was allowing mercy chance to any candidate or was allowing more than four attempts to appear in the examination on that basis it cannot be said that other candidates are also entitled to avail mercy chance. No such right can be said to be vested in any candidate under any of the Ordinance that he should be allowed fifth or sixth chance which may be described as mercy chance and in the court can come to be given such a chance. If there is specific provision giving powers to V.C. or other authorities of the University then discretion might have been vested and discretion is only in case of emergency and in my opinion there is no emergency and the V.C. could not have exercised his discretion which will lead to contravention of the statutory provision of law.
(3.) IN the rejoinder filed by the petitioner in para 1 and its sub -paras instances have been given to whom upto the year 1991 mercy chances have been given. When the case came upo for dictation of orders after hearing the arguments of the learned Counsel yesterday i.e. on 10th October 1991, the learned Counsel for the University of Rajasthan was directed to keep the record ready of such of the candidates whose names have been mentioned, therein and the said record is ready. Only one instance contained in sub -para 1(iv) of the aforesaid rejoinder is relevant for the present controversy as it is stated therein that Dhan Singh Meena and Banwari Lal Meena, both the students of first M.B.B.S. Examination and both could not clear all the three papers in four attempts and were given 5th chance to clear the one paper in the 1st M.B.B.S. Examination which was held in January 1991. A perusal of the record which has been kept ready by the learned Counsel for the University will show that so far as Banwari Lal Meena is concerned, he has not claimed forth attempt and the averment do not appear to be correct. It does appear that so far as Dhan Singh Meena is concerned, he had four attempts in first year M.B.B.S. and/was allowed fifth chance also. But it was for the examination commencing w.e.f. 10th December 1990 i.e. much before than the faculty of Medicine and Pharmaceuticals in its meeting held on 15th December 1990 resolved to recommend that no mercy chance be given by the University for passing any examination of the faculty of Medicine.;