B. Swathi Vs. Karnataka State Law University and Others - Court Judgment

(Prayer: This Writ Petition Is Filed Under Articles 226 And 227 Of The Constitution Of India Praying To Quash The Revised Rank List Of LL.M, Issued By R-1 (Vide Annex-K To This W.P.) In So Far As It Relates To June 2012-B and T And Nani.A.Palkhivala Memorial Gold Medal For The Year 2012 (Which Two Tables Are Found At Ink Page 27 Of Annex-K Of Writ Papers.) 

1. Though notice on respondents No. 5 and 6 is not served and petition is listed to await service on them, considering the fact that the University and the students concerned are represented, the petition is taken up for consideration and disposed of by this order.

2. The petitioner is before this Court seeking that the Revised Rank List of LL.M. at Annexure-K to the petition be quashed insofar as it relates to the assignment of rank for "Business and Trade' ('B and T') of June, 2012 and award the Nani A. Palkhivala Memorial God Medal for the year 2012. The petitioner is seeking for issue of mandamus to direct the first respondent to award the first rank in LL.M. decree in 'B and T' of June, 2012 as also the Nani A. Palkhivala Memorial Gold Medal for the year 2012 to the petitioner.

3. The undisputed facts are that the petitioner and respondents No. 3, 4 and 6 are the students who had pursued the LL.M. course offered by respondents No,2 and 5 which are affiliated to the first respondent- University. In addition to respondents No.3, 4 and 6, one late Mamatha Shetty has been awarded a rank in the impugned process. However, she has expired subsequently and therefore, the need to challenge the same in this petition did not arise. The petitioner and the respondents No.3, 4 and 6 herein had joined the LL.M degree course and the present issue is with regard to the inter-se merit among themselves for the purpose of award of rank and the said Gold Medal which is awarded to such meritorious student.

4. The respondent No. 1-University at the first instance had issued a provisional rank list for LL.M. June 2011, June 2012 and June, 2013. In the said lists, insofar as the petitioner is concerned, the name of the petitioner was indicated in the June, 2012 as against the subject 'B and T' having secured 1052 marks. The said list has now been revised, wherein the name of the petitioner has been deleted and as against the same, the name of respondents No.3 and 4 as also that of late Mamatha Shetty have been indicated as entitled to receive the first three ranks for 'B and T' in the examinations of June, 2012 Since, the third respondent who has been assigned the first rank has secured 1038 marks which is less than 1052 marks obtained by the petitioner, the petitioner claims to be aggrieved by the action of the respondents m denying her the first rank, as also the award of the Nam A. Palkhivala Memorial Gold Medal The Gold Medal has been awarded to respondent No.6 who has secured 1039 marks.

5. The respondent No.1 has filed its objection statement. The fact that initially a provisional list was issued is not in dispute. However, what is contended by the respondents is that the respondent No.2-College wherein the petitioner and respondents No.3 and 4 are students has addressed a letter dated 09.08.2014 indicating that the petitioner had appeared for the first semester examination in two attempts i.e., January, 2011 and June, 2011. In that view, the respondents by placing reliance on their Ordinance which prescribes that the ranks would be awarded to the highest scorer who has completed all the semesters in the first attempt have sought to contend that the case of the petitioner cannot be considered as one having secured highest marks in the first attempt and therefore, the rank cannot be awarded. The learned counsel for the private respondents also seeks to contend in a similar fashion.

6. The learned counsel for the petitioner would contend that the petitioner had genuine medical difficulties to appear for the examination held during January, 2011. In order to keep her admission in force, the examination fee was paid but she did not appear for the examination. Subsequently, when the examination for the second semester was held during June, 2011, the first semester examination was also taken up by the petitioner during June, 2011. It is the case of the learned counsel for the petitioner, since the petitioner has not appeared for the examination during January, 2011, the same cannot be considered as an attempt made by the petitioner, merely because she has paid the examination fees towards the said semester. The petitioner appeared for the first semester examination for the first time in June, 2011 though the second semester examination was also taken up during June, 2011. Hence, the attempt made by the petitioner during June, 2011 should be considered as "first attempt" and therefore, in that light, if Clause 18 of the Ordinance is perused, the petitioner would Still qualify for awarding the first rank to her as she has secured more marks than the third respondent is the contention.

7. Since, the words "first attempt" has not been defined in the Ordinance, the learned counsel for the petitioner has referred to the Black's Law Dictionary, Chambers 20th Century Dictionary and The New Lexicon Webster's Dictionary to indicate the meaning assigned to the word "attempt". The learned counsel has also referred to the National Law School of India University LL.M. (Master of Laws) Academic and Examination Regulations with specific reference to Clause-10 therein relating to "Academic Honours". In that view, the learned counsel would contend that when the petitioner has not appeared for the examination during January, 2011, the same cannot be considered as an attempt and the subsequent appearance during June, 2011 cannot be considered as a repetition of the attempt as the appearance for the examination during June, 2011 is the "first attempt" made by the petitioner.

8. The learned counsel for the first respondent as also the respondents No.3 and 4 would contend that though the word "first attempt" has not been defined in the Ordinance, the purport of the clause if considered along with other provisions made in the Ordinance relating to the examinations, it would be clear that if a student does not appear for the examination as and when the same is scheduled by the University and thereafter appears for such examination when it is scheduled for another batch of students, it should be considered as a supplementary/ repetition of the examination though the candidate does not choose to appear for the examination during the first opportunity provided by the University. 

9. The learned counsel for the first respondent has also referred to the regulations of Kuvempu University to indicate that Clause-11 therein which provides for declaration of ranks referring to the word "first attempt" also indicates therein that it should be a single appearance. The learned counsel for the respondents No.3 and 4 in addition to the said contention has a? so referred to a decision of the Division Bench of the High Court of Bombay in the case of Dr. Bharat Sharad Kulkarni-vs- State of Maharashtra and Others (AIR [2001] Bom. Page-7).

10.  In the light of the above, what is necessary to be considered is the purport and scope of Clause-18 in the Ordinance governing LL.M. degree course offered by the respondent No. 1-University. It is brought into force in terms of Section 48(1) (b) of the Karnataka State Law University Act, 2009. The relevant Clause No. 18 reads as hereunder:

"AWARD OF RANKS: 

a) There shall be three ranks and medals in each branch of specialization.

b) Ranks and medals shall be awarded to the students who have passed LL.M. degree examination in the first attempt and the marks secured by them in all the four semesters will be considered for the same."

11. Though detailed contentions have been urged by the learned counsel, the case on hand would have to be decided based on the scope and purport of the Ordinance relating to the respondent No.1 University herein since the petitioner as well as the respondents No.3, 4 and 6 herein have undergone the course based on the provisions contained' in the said Ordinance. The regulations of other Universities which has been referred to herein though can be treated as an external aid for interpretation, a perusal of the same does not clarify the position as to what should be considered as "first attempt", except for the fact that the said regulations indicate with more clarity relating to their own regulations. 

12. If this aspect of the matter is kept in view and the Ordinance which is relevant herein is perused, the only aspect for consideration herein is what should be construed as a "first attempt" for the purpose of award of ranks. The meaning assigned to the word "attempt" in the dictionary no doubt would indicate it is an act or an instance of making an effort to accomplish; to try or to endeavour. It is no doubt true that the petitioner herein has not appeared for the examination during June, 2011 which is clear from die statement of marks which has been issued to her as at Annexure-B to the petition. In the remarks column it has been indicated as Absent' and only the marks awarded towards internal assessment has been shown in the marks sheet. However, the result has been indicated as "Fail". From the same, it would be clear that she had not appeared for all the four theory subjects during January, 2011. She has thereafter appeared for the first semester examinations as also the second semester examination held during June, 2011. 

13.  Though the petitioner has attempted and written the first semester theory examination for the first time in June, 2011, having not appeared for the examination and attempting it during January, 2011, the question is as to whether in such circumstance, the attempt made in June, 2011 should be considered as the "first attempt" by the petitioner for the first semester. It is no doubt true that the examination for the first semester as also the second semester of June, 2011 was conducted on the same day and the petitioner has appeared for all the subjects and ultimately, in relation to the aggregate marks of all the semesters she has secured 1052 marks which is more than 1038 marks secured by the third respondent.

14.  Though the petitioner and the respondents No.3, 4 and 6 herein have answered the very same question papers from the second semester in June, 2011 onwards, the vital difference which is required to be noticed is that despite the petitioner having secured more marks in the aggregate, the difference in the question paper which has been answered by the petitioner and the private respondents No.3, 4 and 6 herein insofar as the first semester would make all the difference to come to a conclusion as to whether, merely because the petitioner has appeared for the first semester examination during June, 2011 it can be claimed as the "first attempt". Due to the said difference in question paper they cannot be put on the same pedestal for comparison. I am of the said opinion, for the reason that under the other Clauses of the Ordinance, the marks obtained would be taken into consideration only for the purpose of assessing the standard of a student to come to a conclusion whether such student has passed or secured the first or the second class but it is not for comparative assessment with a fellow student: But, when it is considered in the background of assigning a rank or the award of Gold Medals, the inter-se merit of the students would be more relevant with regard to the marks that has been obtained by them. Such inter-se merit amongst them can be determined only if in all aspects they are similarly placed and the same bench mark has been adopted inter-se amongst them to come to a conclusion as to who is more meritorious. That is possible only if the same set of questions are answered by the students in all the semesters of the course. One can be declared as a winner only if he/she is compared with the same set of competitors in all the laps of a single race.

15.  In the instant case, as noticed, the respondents No.3, 4 and 6 and all the other students who had appeared for the first semester had answered a particular question paper which had been set for the examination conducted during January, 2011. As compared to her other batchmates, the petitioner had answered a different set of questions while attempting her first semester examination during Tune 2011.

16.  Therefore, in such circumstance, when the petitioner has attempted a different examination at least for one semester as against all the other students who had appeared for the first semester examination during January, 2011, the inter-se merit cannot be assessed though the subsequent three semesters were commonly attempted by the petitioner as well as the respondents No.3, 4 and 6 and all other students of the same batch of a particular academic session. It is in that context the "first attempt" becomes relevant.

17.  Hence, in my opinion, the word "first attempt" should be understood in the sense as the scheduled attempt of the course provided by the University to the student and not the one opted or chosen by the student to appear for the examination as his or her first attempt. The said understanding is for the reason that only if such purport is given to the said words a uniform procedure could be adopted as otherwise the students would have the choice of writing the examinations as and when they deem to do so by not having undergone the uniform test by answering the very same set of questions which the regular student would have attempted in the examinations as scheduled by the University.

18.  Therefore, if these aspects are kept in view, though the petitioner has written the theory examination for the first time in June, 2011, the said examination cannot be considered as a "first attempt" provided by the University to the student to appear for the examination. 

Therefore, the marks as obtained by the petitioner even if it is more than the marks obtained by third respondent in the aggregate, the same would not answer the requirement of Clause-18 in the Ordinance. If this is considered, the provisional list as issued by the respondents was erroneous and the same has been subsequently corrected by issue of Revised Rank List as at Annexure-K which does not call for interference.

In terms of the above, the writ petition stands disposed of.