Ble High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.26972 of 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Byomakesh Nayak … Petitioner - Versus - … Opposite parties Utkal University, represented by its Vice Chancellor, Bhubaneswar and others For Petitioner … M/s. B.S. Tripathy, M.K. Rath, J. Pati & N. Panda. For Opposite Parties … Mr. T.A. Acharya, Advocate -------------- PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing: 09.02.2024 : Date of judgment : 23.02.2024 A.K. Mohapatra, J. Being aggrieved by the decision of the Opposite Party No.1-University in denying permission to the // 2 // Petitioner to appear in the 4th Semester of LL.M Examination conducted by Opposite Party No.1-University, while allowing him to appear in the 3rd Semester Examination on the ground that the Petitioner does not have adequate attendance to appear in such examination, the Petitioner has approached this Court by filing the present writ petition. Further, the Petitioner has prayed for quashing the order vide Memo dated 13.07.2023 under Annexure-4 with a further direction to the University to permit him to appear in the 4th and final Semester of LLM Examination to be conducted by P.G. Department of Law, Utkal University, Vani Vihar, Bhubaneswar. 2. The factual matrix as culled out from the writ petition, on a narrow compass, is that the Petitioner got himself enrolled as a student of P.G. Department of Law, Utkal University and he was assigned University Registration No.14015V103004 in the academic session 2010-12. Further, it appears that although the academic session should have // 3 // commenced from the month of June, 2010, however, the same started from December, 2010 thereby the academic session was delayed by a period of six months. Pursuant to such enrolment, the Petitioner was allowed to appear in the 1st and 2nd Semester Examination conducted by the University without any hindrances as a regular student. He also secured the highest mark in respect of 1st and 2nd Semester Examination of LLM and was accordingly felicitated with the prestigious Justice Bira Kishroe Ray Memorial Award. 3. While prosecuting his LL.M Degree course, the Petitioner got selected for Odisha Judicial Service Examination-2011. Accordingly, the Petitioner joined in Judicial Service on 9th January, 2012. While joining in Judicial Service, the 3rd Semester was round the corner and was scheduled to be held in the 4th week of January, 2012. Accordingly, the Petitioner applied for permission from the Hon’ble High Court of Orissa to appear in the said // 4 // examination. Since there was a delay in communicating such approval from this Court, the Petitioner could not appear in the 3rd Semester Examination awaiting grant of such permission by this Court. Finally, this Court granted permission to the Petitioner to appear in the 3rd and 4th Semester Examination to be conducted by the Opposite Party No.1-University. 4. While this was the position, the Petitioner pursuant to the permission granted by this Court appeared in the 3rd Semester (back paper examination) without any hassle. The real problem arose when the Petitioner approached the P.G. Department of Law of Utkal University, Vani Vihar, Bhubaneswar to fill up the form for 4th and final Semester Examination in the year 2013. He was debarred by the P.G. Department of Law of Opposite Party No.1 to fill up the form and to appear in the final 4th Semester Examination of P.G. Law Course. On enquiry, the Petitioner came to learn that he has been debarred due to shortage of attendance and such a // 5 // conclusion was arrived at on the basis of the fact that since the Petitioner had joined in Judicial Service w.e.f. 09.01.2012, it was not possible on his part to regularly attend
Facts
the classes thereafter. Being aggrieved by such decision, the Petitioner approached the University by filing a representation dated 17.07.2013 before Opposite Party No.1, however, the same was not considered by the Opposite Party No.1, as a result of which, the Petitioner was compelled to approach this Court by filing W.P.(C) No.18381 of 2013. A coordinate Bench of this Court vide order dated 22.08.2013 was pleased to direct the Opposite Parties to dispose of the representation of the Petitioner dated 17.07.2013 within four weeks from the date of communication of such order. 5. Since no decision was taken on the representation of the Petitioner pursuant to the order passed by this Court, the Petitioner was again constrained to file another representation on 27.10.2015 before the Vice Chancellor of the University with a request to direct the Registrar, the Opposite Party No.2 // 6 // to dispose of his earlier representation. Again challenging the inaction on the part of Opposite Party No.1, the Petitioner approached this Court by filing W.P.(C) No.18022 of 2016. A coordinate Bench vide its order dated 23.12.2022 dispose of said writ petition with an observation that the matter should have been referred to the apex academic body of the University i.e. Syndicate of the University to take a decision in the matter keeping in view the peculiar facts and circumstances of the present case, particularly taking into consideration the fact that the Petitioner is a brilliant student and that on the basis of his performance in the University examination itself that the University awarded him the Bira Kishore Memorial Award and, accordingly, this Court directed Syndicate/Academic Council of the University to consider the case of the Petitioner keeping in view the factual background of the present case. 6.
Legal Reasoning
Bhubaneswar. In reply to the direction given by this Court in the earlier writ petition, learned counsel for the Opposite Parties submitted that pursuant to the order of this Court dated 16.12.2022 and 23.12.2022 directing the Petitioner to approach the University with a further direction to the Syndicate/Academic Council to take a decision in the matter within a period of 8 weeks, 19. Pursuant to the aforesaid directions the Syndicate in its meeting held on 26.04.2023 has taken a decision thereby rejecting the representation of the Petitioner. This Court at this juncture on a careful analysis of the conduct of the Opposite Parties found that although the order was passed by // 23 // this Court in December, 2022 to consider the case of the Petitioner within eight weeks, however, the Syndicate considered the case of the Petitioner only on 26.04.2023, i.e. admittedly beyond the time prescribed by this Court. It has also been stated that vide order dated 13.07.2023, the Syndicate of the University, by a speaking order and referring to provision of Provisions-236 of OUFS-1990, has rejected the claim of the Petitioner. In view of the aforesaid submission, learned counsel appearing for the Opposite Parties submitted that the Syndicate of the University and the Opposite Parties have not committed any illegality in rejecting the representation of the Petitioner with a prayer to permit him to write the 4th and final Semester Examination of LL.M Course. 20. In reply to the counter affidavit, learned counsel for the Petitioner has also filed a rejoinder affidavit. In the said rejoinder affidavit, it has been averred that the Petitioner was although eligible to appear in the 3rd Semester Examination, // 24 // however, as a disciplined judicial officer awaiting the permission of this Court, he did not appear in the regular 3rd Semester Examination. Therefore, after obtaining specific permission from this Court to appear in the 3rd and 4th Semester Examination, the Petitioner appeared in the 3rd Semester (back paper) of LL.M Course. The rejoinder affidavit further reveals that the Petitioner joined in the Judicial Service on 09.01.2012 and by then the academic session 2010-12 was over. The Petitioner had successfully completed all course requirements to appear in the 4th and final Semester Examination. It has also been averred in the rejoinder affidavit that due to intervening circumstances, i.e. the Petitioner was selected for Odisha Judicial Service and consequently joined in service on 09.01.2012, the Petitioner could not take the examination for the 3rd and 4th Semester. Although he was permitted by this Court, he was only allowed to appear in the 3rd Semester and not in the 4th and final Semester by the Opposite Parties. // 25 // 21. The rejoinder affidavit further reveals that the Petitioner has taken a specific stand that he has attended the classes in respect of the 4th and final semester examination and, as such, he has completed all the course requirement. Furthermore, it has been specifically alleged that due to delay in commencement of the academic session for the P.G. LL.M Admission in respect of academic session 2010-12, the academic year got delayed by 7 months. The rejoinder affidavit further reveals that although the Petitioner has taken the ground of delay in commencement of the academic session, however, the same has not been specifically denied or disputed by the Opposite Parties in their counter affidavit. As such it has been contended that for such inordinate delay in commencement of the academic session, the Petitioner should not be penalized. In the aforesaid context, learned counsel for the Petitioner specifically referred to Provision- 233 of the OUFS-1990. The said Provision-233 provides that the academic year shall consists of 1st term from June to // 26 // December and 2nd term from January to May. In such view of the matter, learned counsel for the Petitioner submitted that the 4th Semester of LL.M Course of the academic session 2010-12 should have been concluded by June 2012. 22. For better appreciation, the provision contained in Provision-233 of OUFS-1990 is quoted herein below:- “Provision-233 – The academic year in releation to any college/institution shall consist of the following two terms, namely:- First term – From June to December closing with the Christmas holidays. Second term – From January to may closing with the Summer vacation” 23. The rejoinder affidavit further reveals that the Petitioner has also taken a stand that the order dated 23.12.2022 passed by this Court in W.P.(C) No.18022 of 2016 has not been taken into consideration while considering the case of the Petitioner. It was contended by the learned counsel for the Petitioner that this Court vide order dated 23.12.2022 specifically directed the Syndicate/Academic Council to // 27 // consider the case of the Petitioner by taking a lenient view and keeping in view the attending facts and circumstances so also the credentials of the Petitioner, the Syndicate has arbitrarily rejected the representation of the Petitioner and such rejection order is not in consonance with the direction of this Court dated 23.12.2022. 24. Upon hearing the learned counsels appearing for the respective parties and having due regard to the submissions made by the learned counsels and upon a careful examination of the respective pleadings as well as the materials on record, this Court is required to examine as to whether the decision taken by the Syndicate of the Opposite Party No.1-University under Annexure-4 dated 13.07.2023 is inconsonance with the regulations of the University and the order passed by this Court on 23.12.2022 in W.P.(C) No.18022 of 2016. Before further delving into the issue involved in the present writ petition, this Court would like to throw light on order dated // 28 // 23.12.2022 passed by this Court in W.P.(C) No.18022 of 2016. 25. The said writ petition was preferred by the Petitioner with a prayer to permit the Petitioner to appear in the 4th and final Semester back paper as a regular candidate for LLM Course of the Opposite Party-University. Needless to mention here that the present writ petition is a sequel of the aforesaid writ petition. Therefore, the cause of action involved in the present writ petition is a continuing one which was also involved in the previous writ petition. In the previous writ petition, this Court after hearing the learned counsels appearing for the parties by virtue of a detailed
Arguments
It is submitted by Mr. Tripathy, learned counsel appearing for the Petitioner that after disposal of the earlier // 7 // writ petition vide order dated 23.12.2022, the Petitioner approached the Opposite Party on 03.01.2023. A copy of order dated 23.12.2022 has also been received by Opposite Party No.2. Despite such clear order by this Court, the Opposite Parties did not take any action pursuant to order dated 23.12.2022 which eventually compelled the Petitioner to approach this Court by filing CONTC No.4370 of 2023. The aforesaid contempt application was disposed of vide order dated 10.07.2023 by granting the Opposite Parties further two months’ time to comply with the order dated 23.12.2022. 7. Finally, the Opposite Parties issued a letter vide Memo No.4149 dated 13.07.2023 under Annexure-4 to the writ petition to the Petitioner. In the aforesaid letter, the Petitioner has been informed that the matter was taken up on 26.04.2023 by the Syndicate in its meeting and, accordingly, the prayer of the Petitioner to allow him to appear in the 4th and final examination of P.G. Law Examination has been // 8 // rejected by the Syndicate by citing Provision-236 of the Orissa Utkal University First Statute (OUFS-1990). 8. Mr. Tripathy, learned counsel for the Petitioner, at the outset, submitted that the decision of the Syndicate in respect of the Petitioner dated 26.04.2023 is highly illegal, arbitrary and contrary to the First Statute of the University and, as such, the same is liable to be quashed. He further alleged that the decision taken by the Syndicate on 26.04.2023 is a result of total non-application of mind by the members of the Syndicate of the University. Learned counsel for the Petitioner also contended that such a decision has been taken by the Syndicate in ignorance of the factual background of the present case and in violation of the order passed by this Court on 23.12.2022. In course of his argument, Mr. Tripathy submitted that the Petitioner is a brilliant student and is having a bright career. He also contended that on the basis of the performance of the Petitioner and his merit, he has been selected as a Judicial Officer by this Court and, as such, he // 9 // has been inducted into Odisha Judicial Service. It was also brought to the notice of this Court that the Petitioner has secured the highest mark in respect of the 1st and 2nd Semester Examination conducted by Opposite Party No.1- University. Learned counsel for the Petitioner emphatically argued that the conduct of the Opposite Party No.1 in the present case is a glaring example of the fact as to how a brilliant student is being harassed by the University by illegally restraining him from appearing in the final semester examination and to acquire the LL.M Degree in accordance with law and the rules and regulations of the University. 9. Learned counsel for the Petitioner in course of his argument made an attempt to demonstrate before this Court as to how the Petitioner has been dealt with in an arbitrary and discriminatory manner by the Syndicate of the University. While elaborating his contention in support of the Petitioner, learned counsel for the Petitioner submitted that the impugned order under Annexure-4 rejecting the prayer of // 10 // the Petitioner to permit him to appear in the 4th Semester Examination is devoid of any reason. It was also contended that the University authorities by merely citing the provisions of Provision-236 of OUFS-1990 have been pleased to reject the application of the Petitioner. In such view of the matter, learned counsel for the Petitioner submitted that the impugned rejection order is liable to be set aside on that ground alone. 10. Mr. Tripathy, learned counsel for the Petitioner further argued that the Syndicate of the University in its decision dated 26.04.2023 has not dealt with inordinate delay in completion of the course within the time stipulation. Such rejection order is also silent about the credentials of the Petitioner as a brilliant student of law. He further submitted that the Syndicate while taking the decision has not taken into consideration the specific permission granted by this Court permitting the Petitioner to appear in the 4th and final Semester Examination. For better appreciation, the // 11 // permission granted by this Court is reproduced herein below:- “ORISSA HIGH COURT : CUTTACK No.6725 XXIX-2/2008 FROM Shri K.C. Barik, Special Officer (Administration), High Court of Orissa, Cuttack. TO THE DISTRICT & SESSIONS JUDGE, CUTTACK. Cuttack, dated, the 16th August, 2012. SUB: Permission in favour of Shri Byomakesh Nayak, Civil Judge on Probation, Cuttack to appear in the final year LL.M. Examination. Sir, With reference to your letter No.3278 dated 28.07.2012 on the above subject, I am directed to say that the Court are pleased to accord necessary permission in favour of Shri Byomakesh Nayak, Civil Judge on probation, Cuttack to appear in the 3rd and 4th Semester examination of LL.M. without detrimental to his official duty and subject to conditions as laid down in Paragraph-5(6) of the Government of Odisha, P & S Department Resolution No.21352 – Gen. dated 20.11.1969 and by availing leave. Shri Nayak be informed accordingly. Yours faithfully, Special Officer (Administration)” As such, it was argued that impugned decision dated 26.04.2023 is not in conformity with the spirit of order dated 23.12.2022 and, as such, the same is unsustainable in law. // 12 // 11. In course of his argument, learned counsel for the Petitioner referred to Provision-236 of OUFS-1990 and submitted that it would be apt and apposite to examine the aforesaid provision in the context of the present case. For better appreciation, the aforesaid Provision-236(1) has been quoted herein below:- “Provision-236(1) – In an institution or a college the grant of the annual certificate shall be in respect of two terms which shall ordinarily be consecutive and over one academic year. But it shall be competent for the authorities of an institution to grant such a certificate in respect of two terms which are not consecutive, provided that the student has during those terms completed the necessary courses of study for the year. (2) The grant of annual certificate shall also be subject to the following conditions, namely :- i) The certificate shall not be granted unless a student has kept at least three-fourth of the attendances prescribed by the institution in the course of instruction during the year in institutions // 13 // approved by the Syndicate for any certificate, or diploma or degree? ii) the certificate shall not be granted unless the student has completed the course of instruction to the satisfaction of the authorities of the institution/college and his progress and conduct have been satisfactory: iii) The student who has not earned his annual certificate in any of the courses during the year shall be required to join the same class for another full year to receive such additional instruction as the Head of the Institution considers necessary. 12. By referring to the aforesaid provisions contained in Provision-236 of OUFS-1990, learned counsel for the Petitioner argued that the aforesaid restriction in the said provision shall apply to the candidates, who have taken admission lawfully and within the academic session as prescribed in the courses of studies. In other words, it was argued by the learned counsel for the Petitioner that since the academic session was delayed by the University, they cannot // 14 // take resort to Provision-236 of OUFS-1990 to deny an opportunity to the Petitioner to appear in the 4th and final semester examination. In the aforesaid context, he further submitted that had the academic session been completed within the stipulated time, then the Petitioner would have appeared in the final semester examination without any hassle and he would have completed the 4th semester in the manner he has done in the 1st, 2nd and 3rd Semester. Therefore, learned counsel for the Petitioner made an attempt to put the entire blame on the University and their conduct in delaying the academic session by a period of six months. He further contended that considering the peculiar nature of this case, this Court had earlier directed the Syndicate, who is the effect academic body of the University to take a decision keeping in view the brilliant academic carrier of the Petitioner as well as the peculiar facts and circumstances of the present case. However, the Syndicate of Opposite Party No.1 has committed an illegality by arbitrarily and // 15 // mechanically rejecting the prayer of the Petitioner made in the representation. 13. Learned counsel for the Petitioner also argued that the Petitioner is entitled to the benefit of exemption as has been prescribed under Provision-237 of the OUFS-1990. He further contended that keeping in view the fact that there was admittedly a delay in commencing the academic session, the brilliant carrier and the performance of the Petitioner in other semester examinations as well as the permission granted by this Court to the Petitioner to appear in the 4th and final Semester of LLM Course has not been taken into consideration by the University. He further contended that keeping in view the aforesaid facts, the Syndicate of the aforesaid University could have easily granted exemption to the Petitioner under the rules of the University. 14. Before dealing with the contentions raised by the Opposite Party-University, this Court would like to highlight certain facts which are borne out from the record of this case. // 16 // Initially, Mr. B.K. Dash, learned counsel accepted notice on behalf of Opposite Parties No.1 to 4. Accordingly, this Court granted several adjournments to Mr. Dash for filing counter affidavit. Despite grant of such opportunity, Mr. B.K. Dash did not file the counter affidavit and on 22.11.2023, as is evident from the order sheet, Mr. Dash submitted before this Court that he has not received any instruction from the University along with a duly executed Vakalatnama by the Opposite Parties despite forwarding the copy of the writ petition to the University authority. Thereafter this Court again issued notice to the Opposite Parties by Speed Post with A.D. Despite the issuance of such notice by Speed Post, none appeared on behalf of the University on 12.12.2023, 20.12.2023 and 21.12.2023. On 03.01.2024, Mr. B.K. Dash, learned counsel again appeared before this Court and submitted that he needs some time to obtain instruction from the University and to file his Vakalatnama and considering such submission, this Court again adjourned the matter. // 17 // Thereafter, this Court requested Mr. T.N. Pattnaik, learned counsel to accept notice on behalf of University and to obtain instruction. While the matter stood thus, finally Mr. T.P. Acharya, learned counsel appeared on behalf of the Opposite Parties and filed his Vakalatnama with counter affidavit. Thereafter, the matter was again adjourned as none appeared on behalf of the University when the matter was been taken up for final hearing. Finally, the matter was heard on 09.02.2024 by giving ample opportunity to the counsels representing both sides. 15. On perusal of the counter affidavit filed by the Opposite Parties, this Court observes that the affidavit has been sworn by the Registrar, Opposite Party No.2 of the University and the said counter affidavit has been filed on behalf of all the Opposite Parties. In the counter affidavit, the Opposite Parties have admitted the fact with regard to enrolment of the Petitioner in two years regular Master of Law (LL.M Course) for the Academic Session 2010-12 at the P.G. Department of // 18 // Law, Utkal University. They have also admitted that the Petitioner appeared in the 1st Semester LL.M Examination held in March, 2011 and the 2nd Semester LL.M Examination. Further, it has been admitted that the Petitioner was eligible to appear in the 3rd Semester LL.M Examination, which was scheduled to be held on 17.01.2012, however, he did not appear in the said examination as he had joined Odisha Judicial Service w.e.f. 09.01.2012. It has also been stated that after joining the Judicial Service, the Petitioner discontinued his studentship in 2 years LL.M Degree Course. The counter affidavit further reveals that no attendance has been recorded in respect of the Petitioner during 4th Semester of LL.M Course. It has also been admitted in the counter affidavit that the Petitioner was allowed to appear in 3rd Semester LL.M Examination as back paper after obtaining permission of the Hon’ble High Court of Orissa. The counter affidavit further reveals that the Petitioner was granted permission to appear in the 3rd and 4th examination of the 2 // 19 // years LL.M Degree Course by the Hon’ble High Court of Orissa. 16. In the counter affidavit, it has been stated that the Petitioner was allowed to appear in the 3rd Semester back paper examination in the year 2013 pursuant to the permission granted by this Court and as the Petitioner fulfils the eligibility criteria of the University. Since the Petitioner discontinued 4th Semester of LL.M Class as he had joined OJS on 09.01.2012, he was not allowed to appear in the 4th Semester Examination. The counter affidavit further reveals that a student, who is in a full time employment, is not allowed to continue as a full time student in a regular course. Therefore, the Petitioner has not been allowed to appear in the 4th Semester Examination by the University as by then he had joined the OJS. It has also been stated in the counter affidavit that pursuant to permission of this Court on 16.08.2012 vide letter No.6725 with Memo No.3609 dated 25.08.2012 to appear in 3rd and 4th Semester LL.M Course, // 20 // the Petitioner was allowed to appear in 3rd Semester back paper. Since the Petitioner did not attend classes in the 4th Semester, he has not been allowed to write in 4th and final Semester Examination. In such view of the matter, learned counsel referring to the provisions contained in Provision-236 of OFUS-1990 defended the conduct of the Head of P.G. Department of Law, Utkal University in not permitting the Petitioner to fill up 4th Semester Examination form. In their counter affidavit, the Opposite Parties have also categorically stated that a candidate is required to attend 75% of the lecture in each semester with the exception that the HoD of concerned Department may grant condonation in shortage of attendance to the extent of 15% and that such a condition is the mandatory requirement to allow a student to appear in the final semester examination. 17. In para-19 of the counter affidavit, the Opposite Parties have taken a stand that in view of the regulation of the University, a candidate shall appear and pass in all // 21 // examination for the LL.M Degree within 5 years from the date of his/her 1st registration in the LL.M study. In the aforesaid context, learned counsel appearing for the Opposite Parties submitted that since the Petitioner had joined in LL.M P.G. Course in the academic session 2010-12, the 5 years period is already over. Therefore, the Petitioner is no more eligible to appear in any semester examination in respect of the academic session 2010-12. 18. Similarly, in reply to the specific permission granted by this Court permitting the Petitioner to appear in the 3rd and 4th Semester of LL.M Examination, learned counsel for the Opposite Party-University referring to the counter affidavit submitted that such permission was granted by this Court subject to the rules and regulations of the University. Therefore, the permission so granted by this Court was considered by the University and the Petitioner was permitted to appear in the 3rd Semester Examination only. So far the 4th Semester is concerned, learned counsel for the Opposite // 22 // Parties submitted that since the Petitioner is not eligible in view of the regulation of the University, he was not permitted to appear in the 4th and final Semester Examination. It was also contended that since the Petitioner is in full time employment, he cannot be allowed to continue as a full time regular student in P.G. Department of Law, Utkal University,
Decision
order disposed of the writ petition thereby, in para-13 of the order directed the Petitioner to approach the Opposite Party No.2-University within two weeks from the date of such order and in such eventuality, the Opposite Party No.2 shall place the entire record before the Syndicate/Academic Council of the Opposite Party-University with a further // 29 // direction to the Syndicate/Academic Council to take a decision in the matter within a period of eight weeks from the date of communication of order dated 23.12.2023. 26. This court, on examination of records, further observes that the academic council shall take a decision keeping in view the peculiar facts and circumstances of the case and considering the otherwise brilliant career of the Petitioner. Further, the decision so taken was to be communicated to the Petitioner within two weeks. Despite such clear and specific order of this Court, the University authorities placed the matter before the Syndicate only on 26.04.2023. The decision of the Syndicate was communicated to the Petitioner vide letter dated 13.07.2023 under Annexure-4 to the writ petition. At this juncture, this Court would like to observe that the timeline as specified in order dated 23.12.2022 has not been adhered to by the University while disposing of the representation of the Petitioner. // 30 // 27. Moreover, a careful scrutiny of the speaking order dated 13.07.2023 reveals that the University has communicated the decision of the Syndicate meeting held on 26.04.2023 to the Petitioner wherein the Syndicate of the University has been pleased to reject the representation of the Petitioner and, as such, the Petitioner has been denied a permission to appear in 4th LL.M Semester Examination as a back paper by referring to provisions of Provision-236 of OUFS, 1990. This Court on a careful examination of order under Annexure-4 is also of the view that the order under Annexure-4 does not contain the reasons which has led the Syndicate of the University to reject the application of the Petitioner under Provision-236 of OUFS, 1990. On such examination of the impugned order under Annexure-4, this Court is of the considered view that the same is not in consonance with the order date 23.12.2022 passed by this Court. However, having said that, this Court would also examine the issue involved in the present writ petition on merits. // 31 // 28. From a careful scrutiny of the impugned order, it appears that the Syndicate has rejected the case of the Petitioner by referring to Provision-236 of the OUFS-1990. Provision-236 of OUFS-1990 has already been quoted in the previous paragraph. No doubt, the aforesaid Provision-236 of the OUFS-1990 imposes a restriction with regard to the attendance and also provides under sub-clause(4) that unless exempted by special order of the Syndicate made either on the order of the Academic Council or in accordance with the Regulations, and produce in the form prescribed by the Syndicate, the certificate or certificates of attendance as required by the Regulations shall not be applied with and, accordingly, the candidate shall not be allowed to appear in the semester examination. In other words, unless a candidate produces an annual certificate of attendance issued by the competent authority, he shall not be allowed to write the end semester examination. Albeit, the aforesaid provision provides for an exception. Such exception confers power on // 32 // the Academic Council as well as the Syndicate to grant exemption in certain cases. It further provides that such exemption granted shall be in conformity with the regulation of the University and the same shall be permanent in nature. 29. On a further careful scrutiny, this Court observes that while considering the case of the Petitioner, the Syndicate has not considered the grant of exemption to the Petitioner by taking into consideration the attending facts and circumstances and the extraordinary achievement of the Petitioner in the previous Semester Examinations. The Syndicate has also not taken note of the specific permission granted by this Court to appear in the 3rd and 4th Semester Examination as well as the spirit of order dated 23.12.2022 has also been given a go by the Syndicate. In the aforesaid context, this Court would like to observe that the regulations of the University are to ensure discipline and decorum in the educational institutions and to protect the interest of bona fide students. // 33 // 30. Similarly, the apex academic bodies like the Academic Council and the Syndicate of the University are expected to function in a more pragmatic manner and in course of such normal conduct of business they should make every endeavour to protect the interest of students who have performed exceptionally and have a brilliant academic career. They are also expected to show some respect to the decision taken by this Court in granting permission to the Petitioner who had by then joined as a Judicial Officer by his own merit. Moreover, as a law abiding body, they are also expected to act in obedience to the orders passed by this Court. Most unfortunately this Court observes that the Apex Academic Body of a recognized University has acted in a manner by showing utter disrespect to the decision of this Court as well as a specific order passed in the case of the Petitioner. This court on perusal of the impugned rejection order is utterly surprised to note the manner and tone in which the opposite parties have dealt with the issue. // 34 // 31. Now, adverting to the facts of the present case, this Court found that there exists no dispute with regard to the factual position as has been pleaded by the Petitioner with regard to his admission and appearance in 3rd Semester Examination conducted by the Opposite Parties. The only dispute is with regard to the Petitioner’s eligibility to appear in the 4th and final Semester Examination of LL.M Course of the Academic Session 2010-12. The first contention raised by the learned counsel for the Petitioner is with regard to the delay in commencement and conclusion of the academic session 2010-12. In the said context, this Court examined the provision contained in Provision-233 of OUFS, 1990. Provision-233 of OUFS in an unambiguous and unequivocal term prescribes for the commencement and conclusion of the academic year. 32. Going by the aforesaid Provision-233, the academic session 2010-12 for LL.M Course should have come to an end by June 2012. In the writ petition, the Petitioner has // 35 // categorically alleged that there was a delay in commencement of the academic session by 7th Months which eventually led to delay in conclusion of the academic session in the year 2012. As a result of the same, 4th Semester of LLM Course also got delayed. On a careful analysis of the counter affidavit, this Court observes that the Opposite Parties are silent on such allegation of the Petitioner. Therefore, by applying the doctrine of non traverse, this Court is compelled to accept the allegation of the Petitioner that admittedly there was a delay in conclusion of the academic session in violation of Provision-233 of OUFS- 1990. Therefore, had the academic session been concluded within the time as stipulated in Provision-233, the Petitioner would not have faced the difficulty or the subsequent ordeal which he was made to suffer by approaching this Court on several occasions. 33. It is also a fact that the Petitioner was selected for the Odisha Judicial Service, 2011, for which, the selection // 36 // process ended by end of December 2011 and, accordingly, the Petitioner joined in service on 09.01.2012. Therefore, the ground taken by the Petitioner that had the academic session been commenced on the stipulated date, then the semester would have been concluded within the aforesaid stipulated time, and then he would have appeared in the 4th Semester Examination in the middle of the year 2011. Therefore, the negligence/laches on the part of the University in concluding the academic session in a time bound manner is evident from the facts pleaded in the writ application. Similarly, this Court examined the provisions contained in Provision-237 of OUFS-1990. The OUFS- 1990 being the first statute of the University has the flavour of the statute. The said Provision- 237 provides that either the Syndicate or the Academic Council have been conferred with power to grant exemption by special order in accordance with the regulations. Such a power to grant exemption is not disputed by any of the parties. However, the same has to be exercised in conformity // 37 // with the provisions contained in the regulation. While considering the case of the Petitioner, the Syndicate has not considered the impact of Provision-237 of the OUFS-1990 on the facts of the Petitioner’s case as is evident from the impugned rejection order under Annexure-4 to the writ petition. 34. Moreover, it is not disputed that the Petitioner is a good student and he has secured the highest marks in the 1st and 2nd Semester of the LLM Course, as a result of which, he has been conferred with Justice Bira Kishore Ray Memorial Award and later on the basis of his merit, he was selected for Odisha Judicial Service by a rigorous recruitment process conducted by the Odisha Public Service Commission. Therefore, this Court is of the considered view that the Opposite Parties have failed to consider the representation of the Petitioner in the light of the attending facts and circumstances and keeping in view the permission granted by this Court as well as the order dated 23.12.2023. // 38 // 35. With regard to the grounds raised by the learned counsel for the opposite party-University that there is an embargo in the regulation with regard to the number of years within which course is to be concluded, i.e. in the present case 5 years, this Court observes that such an embargo contained in the regulation could not be applied to the facts of the Petitioner’s case inasmuch as the Petitioner had approached this Court in the year 2013 by filing W.P.(C) No.18381 of 2013 which was disposed of on 22.08.2013. Thereafter, by filing W.P.(C) No.18022 of 2016, which was disposed of on 23.12.2022. Thereafter, due to non- compliance of order dated 23.12.2022 by filing CONTC No.4370 of 2023 which was disposed of on 10.07.2023. On perusal of the aforesaid writ petitions, this Court observes that the Petitioner had challenged the inaction of the Opposite Party-University in taking a decision in respect of the present Petitioner. Therefore, the Opposite Parties are estopped to take resort to the aforesaid regulation imposing the 5 years // 39 // restriction as the delay in conclusion of the course by the Petitioner is solely attributable to the Opposite Parties and the slackness shown by them in taking a decision with regard to the Petitioner. 36. In view of the above analysis, the cause of action which had arisen at the time of first writ petition in the year 2013 continued upto 23.12.2022 when this Court disposed of the 2nd writ petition, thereafter the time to comply was further extended by two months by virtue of the order passed in the contempt application. Such cause of action also continued in the present writ petition which was presented by the Petitioner on 18.08.2023 before this Court. Therefore, this Court is of the considered view that the Opposite Parties cannot take advantage of their own inaction and delay caused by them in taking decision so far the present Petitioner is concerned. In such view of the matter, the aforesaid embargo of 5 years would not be applicable to the facts of the present case. // 40 // 37. In the ultimate analysis, keeping in view the peculiar facts and circumstances of the present writ petition as well as the analysis of the legal position made hereinabove and further taking into consideration the delay in conclusion of the academic session, performance of the Petitioner in first two semesters, the permission granted by this Court for the 4th Semester as well as the order passed by this Court in the previous writ petition dated 23.12.2022, this Court has no hesitation in coming to a conclusion that the Opposite Parties have not considered the case of the Petitioner in its proper perspective and, as such, they have rejected the representation of the Petitioner mechanically without even assigning proper reasons in the impugned order under Annexure-4 to the writ petition. Hence, the impugned order under Annexure-4 as well as the decision of the Syndicate dated 26.04.2023 are hereby quashed. The Opposite Party- University is further directed to grant exemption to the Petitioner and, accordingly, provide annual certificate of // 41 // attendance as is required to appear in the 4th and final semester back paper examination. Accordingly, the Petitioner be permitted to appear in the 4th and final semester back paper examination of P.G. LL.M Course at P.G. Department of Law, Utkal University, Bhubaneswar in the next semester examination of the regular course to be conducted by the Controller of Examination, Opposite Party No.3 by making special arrangement for the Petitioner. It is further directed that the period from the filing of the 1st writ petition in the 2013 till rejection of the representation under Annexure-4 to the writ petition be excluded from the period of 5 years within which the Petitioner is required to conclude the LL.M Course. The result of the 4th and Final semester back paper examination of the petitioner shall be published at the earliest and in the event the petitioner qualifies in such exam, the petitioner shall be issued with the LL.M degree pass out certificate for the academic session 2010-2012 for all acts and purpose. // 42 // 38. Registry is directed to communicate a copy of this judgement to the Opposite Parties forthwith preferably within two weeks. The Opposite Party-University on receipt of a copy of this judgement shall intimate the Petitioner regarding the probable date/month of the 4th semester examination to be conducted in terms of the aforesaid directions, so as to enable the Petitioner to sufficiently prepare for such examinations. 39. Accordingly, the writ petition stands allowed. However, there shall be no order as to costs. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 23rd February, 2024/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 23-Feb-2024 18:59:08