Sougata Saha v. The University of Burdwan & Ors.

(a) A candidate shall have to complete his/her Part-I, Part-II and Part-III Examination in five consecutive years calculated from the due year of his/her first appearance at the Part-I Examination subject to the condition that not more than three consecutive chances shall be allowed to a candidate including the year of his/her original appearance in either PART. (b) If any of the chances mentioned above is not availed of within the stipulated period the chance shall be deemed to have lapsed. Mr. Bihani submits that the petitioner was not entitled to sit in Part III examination since there was a specific bar under the U.Reg.4 (f) (BBA &BCA). The petitioner was allowed to sit in Part III on the basis of his undertaking. Such procedure is usually adopted by the University only 4 to ensure that in the event, a student comes out successful in post-publication scrutiny, he does not lose a year. The petitioner could not clear Part-I and Part-II before Part-III and therefore, the University was right in not issuing the certificate to the petitioner. The petitioner could have availed his chance to clear Part-III examination again in 2018 or in 2019, but he chose not to do so. Ms. Soumasree Saha, learned advocate appearing on behalf of the petitioner submits that U.Reg.5 (a) (BBA &BCA) permits a candidate to clear any part of the examination five consecutive years within consecutive chances. In the present case, the petitioner has cleared his Part-I by availing three consecutive chances in terms of U.Reg.5 (a) (BBA &BCA). The University cannot deny to issue certificate when the petitioner has cleared all three parts of the course within five years. The apparent contradictions between U.Reg.4(f) (BBA &BCA) and U.Reg.5(a) (BBA &BCA) cannot be reconciled. When U.Reg.4 (BBA & BCA) is applied to a student, he may not avail the benefit of U.Reg.5 (a) (BBA & BCA). For example, if U.Reg.4 (BBA & BCA) is applied, a candidate who cleared his Part-II examination in third 5 chance cannot avail all three chances to clear Part-III since all three parts need to be cleared in five consecutive years. In the present case the petitioner admittedly availed the three consecutive chances to clear his Part I examination in terms of U.Reg.5 (a) (BBA &BCA). It is grossly iniquitous to compel the petitioner to take Part-III examination once again when he had already passed the said examination in the year 2017. In view of such incompatibility and irreconcilability U.Reg.5 (a) (BBA & BCA) has to be given full play to secure ends of justice and fair play. The benefits conferred under the said Regulation should not be curtailed by U.Reg.4 (BBA & BCA) to compel a student to accept an unreasonable condition. There has been some delay in filing of the writ petition, but law is settled that there is no hard and fast prescribed limitation period for filing of a writ petition before this Court. When no third party interest is created, a lenient approach is to be made in dealing with such delay. Reliance with this regard may be placed in the judgment reported at (2008) SCC 648 (Union of India & Ors. Vs. Tarsem Singh). 6 In that view of the matter, the present writ petition is allowed giving a direction upon the University to provide the petitioner with the certificate of Part-III BCA (Hons.) Course within a period of two weeks from the date of communication of the order. It is expected that the Executive Council of the University shall expeditiously make suitable amendments in U.Reg.4 (f) (BBA & BCA) to make it workable and compatible with the other provisions of the said Regulations. Written notes of argument filed by the respective parties be kept with the records. All parties shall act upon the server copy of this order duly downloaded from the official website of this Court. (Kausik Chanda, J.)