Permod Kohli, J.
1. Petitioner a student of Bachelor of Engineering Course (Mechanical) of Government College of Engineering and Technology, Jammu ,has been constrained to approach this court to seek a direction for pursuing his further studies in the Engineering Course to which he has been admitted through the competitive examination. Petitioner came to be admitted to the Bachelor of Engineering Course in the Mechanical Engineering through competitive examination conducted by the competent authority in the year 1999. He successfully passed six semesters without any re-appear in any paper of the subject and attended the course of study for the 7th semester. The examination for the 7th semester was scheduled to be held on 29.8.2003. Unfortunately, the petitioner met with an accident on 24.8.2003 and sustained serious injuries. He was admitted in Government Medical College , Jammu in serious condition from-where he was shifted to Dr. Karam Singh Memorial Arthopedic Hospital and Research Centre , Amritsar, where he was operated upon and remained admitted as indoor patient from 25.8.2003 to 31.8.2003. On discharge, he was advised bed rest for two months. Petitioner placed on record the discharge slip from Dr. Karam Singh Memorial Arthopedic Hospital and Research Centre, Amritsar as also the certificate dated 15.9.2003 from the said institute. It was on account of the aforesaid circumstances that the petitioner was prevented from appearing in the 7th semester examination. After recovery, petitioner made representation dated 16.9.2003 to the Registrar, University of Jammu for permission to sit in the 8th Semester Course, in view of the circumstances mentioned above. The representation of the petitioner was forwarded to the Principal Government College of Engineering and Technology, Jammu for his remarks, who vide his communication dated 20.8.2003, confirmed the circumstances that prevented the petitioner from appearing in 7th semester examination. It was conveyed by the Principal that situation in the case of the student is an exceptional one which was beyond his control. Accordingly Principal recommended to relax Statutes 12.1 and 12.2 in case of the petitioner by invoking the provision of Statute-17 governing the degree of Bachelor of Engineering. It appears that despite this recommendation, the University Authority did not permit the petitioner to attend the 8th semester classes and the petitioner approached this court through the medium of present petition.
2. Vide interim order dated 15.11.2003, petitioner was permitted to sit and attend the classes of 8th semester. Subsequently vide another order dated 04.3.2004, he was permitted to participate in the examination for 8th semester.
3. The University in its reply to the writ petition, relied upon Statute 12.1, which is reproduced as under:
'12.1 If a candidate has after attending the course of studies in the College, appeared in any semester examination and failed in one or more Courses for that examination, he can re-appear for such courses at subsequent examination (s) without attending a fresh course of studies for that semester in the college. Such a candidate may, in the meantime, prosecute his studies for the next semester (s) and appear in the examination(s) for the same alongwith the examination for the lower semester (s).
Provided that a candidate shall not be allowed to attend classes and appear in the semester examination (s) mentioned in column(s) unless he/she has passed 50% of the theory courses in semesters mentioned in column(b) below:
(a) (b)5th Semester Ist to 3rd Semesters6th Semester Ist to 4th Semesters7th Semester Ist to 5th Semesters8th Semester Ist to 6th SemestersProvided further that a candidate shall not be allowed to attend classes in the next higher semesters unless he has appeared in the examination of immediate preceding semester.'
4. It is accordingly stated that in view of the embargo created under Proviso -2 to Statute 12.1, the candidate who has not appeared in the examination of the immediate preceding semester , is not eligible to be admitted to next higher semester. In so far the contention of petitioner that he met with an accident on 24.8.2003 i. .e. immediately before the commencement of the examination for the 7th semester, the same has not been denied or disputed. Rather it is mentioned in para-3 of the reply ' the fact that the petitioner met with an accident, which forced him to remain away from the examination of 7th semester may be true.' However, the contention of the University that in view of the specific provision of the statute, no laxity can be given to the petitioner nor any direction can be issued in contravention of the statute framed by the University which are uniformly applied to one and all.
5. A careful reading of the Statute 12.1 makes it clear that if a candidate has after attending the course of studies in the college, appeared in any semester examination and failed in one or more courses for that examination, he can re-appear for such courses at subsequent examination(s) without attending the course afresh and can also prosecute his studies for the next semester(s). Proviso-1 prevents a candidate from attending the classes and appearing in the semester examination, if he has failed to clear 50% of the theory course in the semester mentioned under the said proviso. Under this proviso, if a candidate has failed to clear 50% of the theory paper up to 5th semester , he is not entitled to attend the classes of 7th semester nor entitled to appear in the examination. Similarly, if he has failed to clear 50% papers upto 6th semester, he is not entitled to attend classes of 8th semester and to appear in the examination of this semester. Admittedly, petitioner has no backlog upto 6th Semester and the embargo created in these provisoes is not attracted in his case. It is only the proviso-2 appended to the Statute 12.1 where -under the petitioner has been prevented from not only attending the classes of 8th Semester but also from appearing in the examination for 8th Semester having failed to appear in the 7th Semester examination.
6. Mr. D.S. Thakur, learned counsel for the University has vehemently argued that the statute being statutory in nature and framed with a view to ensure high standard of education particularly the professional course, this embargo has been created and therefore, the petitioner cannot seek any relief against this statutory provision as embodied in Statute 12.1.
7. The power of the University, an institution which is entrusted with the duty of imparting education and degrees, is entitled to lay down the policy or make regulations/ statutes to ensure high standard of education particularly for the professional courses. Such a power has to be conceded to the authorities like University. The object and purpose of every law be it a principle legislative measure or subordinate legislation is to regulate the system, lay down such a standard particularly in the field of education, which are beneficial for the society and ensure its development. To achieve this cherished goal, the University is also entitled to create deterrent provision to prevent the defaulters who take advantage of the beneficial provisions which are otherwise meant for the honest and dedicated members of the society. Provisio-2 appears to have been incorporated may be with the intention to prevent the defaulters from taking the advantage of Statute 12.1 but can this provision be applied against a person, who is not willful defaulter and is victim of the circumstances beyond his control. The petitioner has made specific averment in the petition regarding an unfortunate incident that he met with an accident and remained admitted in hospital where he was operated upon. This is supported by medical evidence and verified by the Principal of the College. The circumstances were beyond the control of the petitioner and for that matter beyond the control of any human being who is put in such a situation.
8. Under such circumstances, which are admittedly not the creation of the petitioner and can only be called act of the God, invoking proviso-2 in case of the petitioner, cannot be justified nor does it achieve the purpose for which the provision has been made. The legislative intent of the framer of the statute can be gathered from the conjoint reading of Clause-1 of Statute 12 and the proviso. In Clause-1, a person who has appeared in any semester examination and failed in one or more subjects or may be in all the subjects is entitled not only to sit in the next higher Semester but also to participate in the examination. Such a provision has been made to take into account the normal and the ordinary course of things because it is not necessary that a candidate can qualify all the subjects or papers in one go. Therefore, if a person who has failed in the 7th semester can be permitted to attend the classes of 8th semester, why a person who has been prevented from circumstances beyond his control to appear in 7th semester examination, be not permitted to sit in 8th semester. As observed above, there may be a valid purpose for enacting provisio-2 to prevent willful defaulter from attending next semester but the same yard-stick cannot be applied in respect to a person, who is not contributory for the circumstances by his any act of omission or commission . The case of the petitioner cannot be worse than a candidate who has appeared and failed in 7th semester. If a person who has appeared and failed can be permitted to continue his course of studies, how a person who has not participated in the examination can be prevented from continuing his studies , particularly where the candidate is prevented on account of circumstances beyond his control. There does not seem to be any logic, rationale or valid purpose for proviso-2 attached to statute 12.1.
9. Mr. D.S. Thakur has referred case titled Dr. Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif and Ors. reported in AIR 1962 SC 1210, wherein the Apex Court held as under:
'A great deal of controversy was raised before us as to whether the Statutes framed by the University under Section 20 of the University of Bihar Act have or have not the force of law and whether a writ under Article 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents . In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance . It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the college is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus . According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to Court and ask for a writ to issue. It is therefore not necessary to go into any other question.'
10. There can be no dispute with the proposition propounded by the Apex Court. However, the court while exercising the power of judicial review, is entitled to interpret any statutory/provision so as to give it more pragmatic and purposeful meaning to achieve the real legislative intent. The purpose of proviso -2 cannot be to prevent all or every candidate from attending the classes of next higher semester, if he has not appeared in the immediate preceding semester. The purpose is to prevent the defaulters who have not appeared on account of any act attributed to them but this cannot be the legislative intent to prevent a person from attending the classes of next higher semester ,if he has not been able to appear on account of circumstances beyond his control. The Apex Court in Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, AIR 1985 SC 964 has interpreted the word' shall' as 'may' to give more purposeful meaning to the statutory provision. What has been held by the Apex Court is noticed below:
'Ordinarily the use of the word' shall' prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well established that the court while considering whether the provision of the word' shall' would make the provision imperative, it would ascertain the intendment of the legislature and the consequences flowing from its own construction of the word' shall'. If the use of the word 'shall' makes the provision imperative, the inevitable consequence that flows from it that the court would be powerless to grant any relief even where the justice of the case so demands . If the word' shall' is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter , yet the court would not be able to grant any relief or assistance to such a person . Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against the drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order. To illustrate, if the tenant while he was on the way to the court on the 15th day to deposit the rent for the just preceding month as directed by an order under Section 11A , met with an accident on the road and could not reach the court before the court hours were over, should be penalized by his defence being struck off. Even if the court is satisfied that he was on the way to the court to make the necessary deposit, that he had the requisite amount with him , and that he started in time to reach the court within the prescribed court hours and yet by circumstances beyond his control, he met with an accident , would the court be powerless to grant him relief. This illustration would suffice to disclose the intendment of the legislature that it never used the word' shall' to make it so imperative as to render the court powerless.
Obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficent nature of the statute and to protect the harassed tenant obviously it does not require long argument to hold that the expression ' shall' was used not with a view to making the provision mandatory or imperative but it was to be directory. Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants. It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice.'
11. It is also settled position of law that a provision can be read down if it appears to the court that the same does not serve the legislative purpose or give an absurd meaning to defeat the purpose for which it has been enacted.
12. Keeping in view the circumstances noticed hereinabove, proviso-2 to Statute- 12 cannot be read to create any absolute bar to prevent a candidate from appearing in the next semester under all circumstances. It has to be construed in the manner so as not to cause mis-carriage of justice. If the contention of Mr. Thakur is accepted, there is bound to be mis-carriage of justice as far the petitioner is concerned. He cannot be punished for an act for which he is not responsible. As noticed above, by virtue of interlocutory order, petitioner has been allowed to attend the classes of 8th semester and also to appear in 8th semester examination. His admission to 8th semester is accordingly regularized and a direction is issued to respondents to declare the result of 8th semester . Petitioner shall be entitled to continue his further course of studies depending upon the out-come of his result of semester for which he has appeared. Petition allowed.