Akash Sindhwani and anr. Vs. Registrar, Rajiv Gandhi Prodyogiki Vishwavidyalaya and anr. - Court Judgment

Excerpt:
constitution - appearance in examination - section 10 of all india council for technical education act, 1987 and section 10 of pharmacy act, 1948 - petitioners were students of pharmacy - they had not cleared their first year examination within two years - respondent university had taken decision to give permission to petitioners to appear in examination on compassionate ground - subsequently said permission was withdrawn by respondent - hence, present petitions - held, section 10 of act of 1948 does not provide any time duration within which candidates have to pass pharmacy examination - but section 10 of act of 1987 empowers all india council for technical education(aicte) to frame rule for keeping standard of technical education - aicte in pursuant to said power framed rule whereby it was provided that first year examination of pharmacy course had to be pass within two academic years - state education board followed said rule - in instant case petitioners could not pass examination within two academic session - hence, they cannot claim appearance in examination as right - they would have liberty to make representation before concerned university - petitions disposed of accordingly - motor vehicles act, 1988 [c.a. no. 59/1988]sections 128 & 168: [a.k. patnaik, c.j. & a.m. sapre & s.k. seth, jj] contributory negligence on part of motorcyclist pillion rider driver of motor cycle carrying two pillion riders in violation of section 128 held, a plain reading of section 128 of the act would show that sub-section (1) casts a duty on the driver of a two wheeled motor cycle not to carry more than one person in addition to himself on the motor cycle. similarly, rule 123 of the rules mentions the safety devices to be provided while manufacturing a motor cycle. these provisions obviously are safety measures for the drivers and pillion riders and breach of such safety measures may amount to negligence but such negligence will not amount to contributory negligence on the part of the pillion rider or composite negligence on the part of the driver of the motor cycle, unless such negligence was partly the immediate cause of the accident or damage suffered by the pillion rider. if the damage in the accident has not been caused partly on account of violation of section 128 of the act by the pillion rider of the motor cycle, the pillion rider is not guilty of contributory negligence. similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of section 128 of the act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. in other words, if breach of section 128 of the act, does not have a causal connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider of the motor cycle or composite negligence on the part of the driver of the motor cycle. therefore, violation of section 128 of the act, per se, by a motor cyclist does not rise a presumption of contributory negligence on his part. similarly, violation of section 128 of the act per se does not amount to contributory negligence on the part of the pillion riders. a pillion rider cannot put up a plea of composite negligence by the driver of the motor cycle, if the driver only violates section 128 of the act. [national insurance co. ltd., v smt uma tiwari 2007(1) manisa 204 (m.p.) (d.b) & kanti devi sikarwar & ors v om prakash & ors. 2007 (1) mpwn 88 (d.b) overruled.] - 2 also filled supplementary examination form for clearing the subjects of first year, in which he had failed. 2 ashok dwivedi appeared in examination number of times from may june, 1999 to december, 2001 and january, 2002, as apparent from annexures a-5 to a-10. petitioners were not informed at the time of their admission that they will not be allowed to appear in the supplementary examination for clearing their first year course along with admission in higher classes, as opportunity was given to others, which has been denied to the petitioners, thus action is illegal and bad in law. no regulations were framed by the university restraining the candidates like petitioner from appearing in the 2nd year examination, who could not pass first year examination in 2 years. however, failure in more than 2 subjects shall debar him/her from promotion in the diploma in pharmacy, part ii. thus counsels submit that decision (r-1), dated 12-9-1996 is bad in law and contrary to the education regulation. however, failure in more than two subjects shall debar him/her from promotion to the diploma in pharmacy part ii class. thus decision which has been taken prescribing the maximum opportunity of attempt can not be said to be illegal or bad in law. (q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the council;orderarun mishra, j.1. in these writ petitions, petitioners have prayed for further opportunity for appearing in the examination of diploma in pharmacy course.2. in w.p. no. 6848/2002, petitioner ku. archana mishra was admitted in diploma in pharmacy course in the year 1998-99. she could not pass any paper in the examination held in may-june, 1999. she appeared in second year examination held in december, 1999 and cleared 4 papers out of 6. petitioner appeared in remaining two papers in may-june, 2000. the petitioner cleared one more paper and the one paper remained to be cleared. petitioner was given admission in the second year in july, 2000. petitioner appeared in the examination in december, 2000 for remaining one paper of first year but could not clear. she appeared in the examination held in may-june, 2001, in all the 6 appears of second year and one paper of first year. she cleared 3 papers of the second year, however, she could not clear the one paper of the first year. petitioner again appeared in december, 2001, passed one more paper of second year. thus she has passed 4 papers out of 6 of second year and 5 papers of first year. thus only 2 papers of second year and one paper of first year remained to be cleared by her. petitioner has to appear only in 3 papers including second year and first year.3. respondent no. 1 university had taken a decision to grant 'special compassionate opportunity' to clear such withheld subjects. the said decision was taken by the examination committee in its meeting on 9th august, 2002, that the students of the batch of 1997-98 and 1998-99 should be given one special opportunity to clear their diploma course. decision (p-1) issued on 19-9-2002. it was 'vishesh anukampa avasar'. the petitioner deposited examination fees. an order (p-6) dated 18-11-2002 was put on notice board that such students should not be allowed further opportunity and decision dated 12-9-96 was reiterated. it is submitted that once an opportunity was granted, the rejection of the application form is illegal.4. in w.p. no. 1863/2003, the petitioner no. 1 pradip kumar tiwari was admitted in the d. pharma first year course in the year 2000-01. petitioner no. 2 was admitted to d. pharma first year course in 1999. petitioner no. 1 appeared as ex-student in first year examination and filled supplementary examination form in december, 2002. petitioner no. 2 also filled supplementary examination form for clearing the subjects of first year, in which he had failed. the petitioner with 7 other students were informed by the principal that they are eligible to appear in the supplementary examination in december, 2002 as per notice (a-1), dated 27-11 -2002. petitioners were not informed that they are not going to be allowed to appear in the supplementary examination held in december, 2002. education regulation, 1991 for the diploma courses of pharmacy issued by the pharmacy council of india, does not provide any time limit for completing diploma courses. education regulation of 1991 (annexure a-2) has been relied upon. regulation 13 (2) provides that 'a candidate who fails in theory or practical examination of a subject shall re-appear both in theory and practical of the same subject'. thus it is submitted that students of d. pharma are entitled to re-appear in the examination. it is not provided in the regulation that within which period students have to clear the subject of first year of d. pharma course. petitioner and other students were issued examination admit cards by the respondent no. 1. admits cards (annexures a-3 and a-4) were issued. it is further averred in w.p. no. 1863/2003 that pradip kumar was admitted in the year 2000-01 in first year d. pharma and appeared in examination may-june, 2001. he appeared in all six subjects of first year examination. he cleared one subject and re-appeared in december, 2001, but could not clear any subject. he had applied and received his admit card to appear in the examination of december, 2002 but subsequently he has been denied the opportunity to appear in the examination. several other students were allowed to appear in the examination. petitioner no. 2 ashok dwivedi appeared in examination number of times from may june, 1999 to december, 2001 and january, 2002, as apparent from annexures a-5 to a-10. petitioners were not informed at the time of their admission that they will not be allowed to appear in the supplementary examination for clearing their first year course along with admission in higher classes, as opportunity was given to others, which has been denied to the petitioners, thus action is illegal and bad in law.5. in writ petition no. 1705/2003, petitioner no. 1 akash sindhawani and petitioner no. 2 pankaj kumar agrawal were admitted in the year 1997-98 in two years diploma course in pharmacy. petitioners appeared in the main examination for the relevant session and could not pass in the same examination in may-june, 1998. petitioners passed in may-june, 2002 and became eligible for admission in part ii/final year of the diploma course. diploma in pharmacy is regulated by the 'education regulation' framed by the pharmacy council of india. petitioners were provided admission in second year when petitioners passed first year. no regulations were framed by the university restraining the candidates like petitioner from appearing in the 2nd year examination, who could not pass first year examination in 2 years. petitioners were given admission in part-ii/final year of pharmacy diploma course. petitioners were informed that they are debarred from appearing in the examination and from attending classes. notice was displayed on the notice board on 27-11-2002, which has the reference to the meeting of the examination committee conducted on 12-11-2002. thus the action is contrary to the regulation. regulation 16 provides for the admission in part ii examination, after passing part i course. decision can not be applied with retrospective effect as the petitioners have passed the first year.6. in w.p. no. 6708/2002, petitioners have been admitted to the course in academic session 2000-01. some of the petitioners were admitted in earlier academic session but could not clear examination though they have completed the requisite course. exact date has not been given on which dates they were admitted. the petitioners have raised the submission that at the time of admission of the petitioners in the two years diploma course, there was no such condition that they are required to clear all the papers of first year examination in three attempts, failing which they would be debarred from appearing in the final year examination. the petitioners were thus acting under a bona fide belief that they would be given adequate chances for clearing all the papers of first year examination. petitioners have now applied for appearing in the final year examination of said course as also in the remaining papers of first year examination. all the formalities in that regard have already been completed. the petitioners had deposited the fees. the examination of final year was scheduled to commence from 2-12-2002. a memo (p-2) dated 18-11-2002 was issued debarring the petitioner from appearing in the examination. petitioners have submitted the representation (p-4) but the same has not been decided. hence the present writ petition has been filed.7. university has filed a return in w.p. no. 6708/2002. it is contended in the return that petitioners were admitted in two years diploma course of pharmacy in academic session 2000-2001. as per decision (r-1), dated 12-9-1996, petitioners were required to clear all papers of first year diploma course within two academic sessions. para 6 of said decision (r-l) provides mandatory requirement of passing the first year course within two academic sessions. all the petitioners in w.p. no. 6708/2002 could not clear all the papers of first year diploma course within 2 academic sessions. decision (r-l) was sent to all the colleges including the govt. polytechnic college, jabalpur in the year 1996 when the decision was taken. the colleges were instructed to circulate and display the decision on the notice board. it is not possible to inform each and every student individually. the petitioners must have noticed the said decision. petitioners were aware of the condition of clearing the papers within 2 academic sessions. they could not clear it. respondent has acted as per decision. there is no malafide on the part of the respondent. action is in accordance with the decision (r-l) and is bona fide.8. respondent no. 2 has also filed the return. similar stand has been taken as that of the respondent no. 1. circular (r-l), dated 12-9-96 has been relied upon. such condition has been in existence since the year 1996. the students are bound by the condition. forms were inadvertently forwarded. action is in accordance with the decision (r-l).9. a rejoinder has been filed by the petitioners in w.p. no. 6708/2002. it is contended in the rejoinder that decision dated 12-9-96 is not in accordance with law and as the matter is governed by the education regulation, framed by the pharmacy council of india in exercise of powers under section 10 of the pharmacy act, 1948 with the approval of the central government. education regulation (p-5) has been relied upon. it is not provided in the regulation that in how many attempts candidates have to clear the papers. thus decision (r-1), dated 12-9-96 is without jurisdiction. the students have been allowed further opportunity and additional chances in spite of the decision dated 12-9-96. decision has not been applied uniformly to all the candidates. the petitioners were made to understand that they can clear a diploma course within 4 years. petitioners now can not be abruptly denied appearance in the remaining papers of first year examination.10. counsels for the petitioners have submitted that education regulation, 1991 for diploma course in pharmacy have been framed under section 10 of the pharmacy act, 1948, which provides duration of course to be 2 academic sessions as per regulation 6. regulation 16 provides all candidates who appeared for all the subjects and passed diploma in pharmacy, part i examination, are eligible for promotion to the diploma in pharmacy, part-ii. however, failure in more than 2 subjects shall debar him/her from promotion in the diploma in pharmacy, part ii. regulation 13 provides that the candidate who fails in theory or practical examination of a subject shall re-appear in theory and practical, of the same subject. thus counsels submit that decision (r-1), dated 12-9-1996 is bad in law and contrary to the education regulation.11. the alternative submission is that when decision was taken to give another opportunity as 'special compassionate opportunity' (p-1) in w.p. no. 6848/2002 with respect to the students, who were admitted in 1996-97 in the 4 years regular/part time diploma course, were to be allowed opportunity in december, 2002 and june, 2003. the students who were admitted in 3 year diploma course in july-august, 1997-98 were to be allowed in december, 2002 and june, 2003 in 4 years regular/part time diploma course were to be allowed opportunity in december, 2003 and in june, 2004 and the students admitted in july-august, 1998-99 session, were to be allowed one opportunity for 2 years diploma course in december, 2003 and students of 3 years diploma course were allowed opportunity of december, 2003 and 4 years regular/part time diploma course were allowed opportunity of clearing till december, 2004. the students who were falling within the benefit of decision (r-l), their applications were also rejected by the university.12. learned counsel appearing for the respondent university has contended that decision (r-1), dated 12-9-96 is binding on the students and whatever opportunity as compassionate opportunity, could be given, have already been given as per the decision dated 19-9-2002. petitioners were aware of the conditions and the decision (r-l), dated 12-9-96, which can not be violated as the same is based on the recommendation of all india council of technical education and decision was taken by the m.p. board of technical education in the joint meeting of all the principles to implement the recommendation of clearing the course within the requisite period. the same was made effective from 1996-97 onwards. opportunities have been provided in para 6 of the decision first year or first semester and second semester have to be cleared in 2 years period including the year of admission. as per para 8 of the decision contains additional sider, 2 years diploma has to be completed in 4 years, three years diploma has to be completed in 5 years and four years diploma including ptdc has to be completed in 6 years and pd/ad courses of 1 - 1/2 have to be cleared in 2 -1/2 years and 2 years such courses have to be cleared in 3 years.13. it is further the stand taken by the learned counsel for respondent no. 1 that university has not varied the decision (p-1), dated 19-9-2002 filed in w.p. no. 6848/2002 and the regulations of pharmacy council of india have not been violated by the decision in question, which is based on the recommendation made by the all india council of technical education. decision r-2 rendered in w.p. no. 2514/2002 has been relied upon, in which division bench of this court has refused to interfere in the academic matter and the petitioners have prayed that there should be no restriction on candidates to appear in the examination in spite of the fact that they have not cleared all the papers in the past.14. coming to the first question raised by the learned counsel for the petitioner that decision (r-1) is contrary to education regulation framed by pharmacy council of india. section 10 of the pharmacy act provides that the central council may subject to the approval of the central government, make regulations, to be called the education regulation, prescribing the minimum standard of education required for qualification as a pharmacist. sub-section (2) prescribes that nature and period of study and of practical training to be undertaken before admission to an examination and for any other condition of admission to examination. section 10 of the pharmacy act, 1948 is quoted below :--10. education regulations.-- (1) subject to the provisions of this section, the central council may, subject to the approval of the central government, make regulations, to be called the education regulation, prescribing the minimum standard of education required for qualification as a pharmacist.(2) in particular and without prejudice to the generality of the foregoing power, the education regulations may prescribe-- (a) the nature and period of study and of practical training to be undertaken before admission to an examination;(b) the equipment and facilities to be provided for students undergoing approved courses of study;(c) the subjects of examination and the standards therein to be attained;(d) any other conditions of admission to examinations. (3) copies of the draft of the education regulation and of all subsequent amendments thereof shall be furnished by the central council to all (state) governments, and the central council shall before submitting the education regulations or any amendment thereof, as the case may be, to the central government tor approval under sub-section (1) take into consideration the comments of any (state) government received within three months from the furnishing of the copies as aforesaid.(4) the education regulations shall be published in the official gazette and in such other manner as the. central council may direct.(5) the executive committee shall from time to time report to the central council on the efficacy of the education regulations and may recommend to the central council such amendment thereof as it may think fit.15. education regulations, which have been pressed in service regulations are 6, 13 and 16. regulations 6, 13 and 16 of education regulations, 1991 for the diploma course in pharmacy are quoted below:--'6. duration of course.-- the duration of the course shall be for two academic years with each academic year spread over a period of not less than one hundred and eighty working days in addition to 500 hours practical training spread over a period of not less than 3 months.13. mode of examinations.-- (1) each theory and practical examination in the subjects mentioned in the tables iii and iv shall be of three hours duration.(2) a candidate who fails in theory or practical examination of a subject shall re-appear both in theory and practical of the same subject.(3) practical examination shall also consist of a viva-voce (oral) examination.16. eligibility for promotion to diploma in pharmacy (part ii).-- all candidates who have appeared for all the subjects and passed the diploma in pharmacy part i examination are eligible for promotion to the diploma in pharmacy part ii class. however, failure in more than two subjects shall debar him/her from promotion to the diploma in pharmacy part ii class.' a reading of regulations 6, 13 and 16 makes it clear that it is no where provided that in how many years course has to be cleared, whether an opportunity is to be granted till the innumerable time. it has not been prescribed that within which period one has to clear the examination. regulations are silent as such following recommendation of all india council of technical education, decision was taken by the board of technical education, m.p. in the year 1996, which is r-1 in w.p. no. 6848/2002, in which it has been provided that first year has to be cleared within the period of 2 years and for passing the diploma course maximum period has also been prescribed as mentioned above. all india council of technical education can make recommendation as provided under section 10 of the all india council for technical education act, 1987 and the recommendations are not in any way in derogation to the 'education regulation', which have been framed in the year 1991 by the pharmacy council of india. thus decision which has been taken prescribing the maximum opportunity of attempt can not be said to be illegal or bad in law. prescribing the maximum period for clearing the course is permissible. functions of the all india council of technical education have been defined under section 10 of the act. section 10 of all india council for technical education act, 1987 is quoted below :--'10. functions of the council.-- it shall be the duty of the council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under the act, the council may-- (a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;(b) ' co-ordinate the development of technical education in the country at all levels;(c) allocate and disburse out of the fund of the council such grant on such terms and conditions as it may think fit to- (i) technical institutions, and(ii) universities imparting technical education in coordination with the commission; (d) promote innovations research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes;(e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society;(f) promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community;(g) evolve suitable performance appraisal systems for technical institutions and universities imparting technical education, incorporating norms and mechanisms for enforcing accountability;(h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers;(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;(j) fix norms and guidelines for charging tuition, and other fees;(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;(l) advice the central government in respect of grant of charter to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examination and awarding of membership certificates;(m) lay down norms for granting autonomy to technical institutions;(n) take all necessary steps to prevent commercialization of technical education;(o) provided guidelines for admission of students to technical institutions and universities imparting technical education;(p) inspect or cause to inspect any technical institution;(q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the council;(r) take steps to strengthen the existing organisations and to set up new organisations to ensure effective discharge of the council's responsibilities and to create positions of professional, technical and supporting staff based on requirements;(s) declare technical institutions at various levels and types offering courses in technical education fit to receivegrants;(t) advice the commission for declaring any institution imparting technical education as a deemed university;(u) set up a national board of accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the council or to the commission or to other bodies, regarding recognition or derecognition of the institution or the programme;(v) perform such other functions as may be prescribed. 16. considering the functions of the all india council for technical education constituted under the act of 1987, it can not be said that directions issued by the all india council for technical education are not binding. all india council for technical education can issue directions for maintenance of standard and for integrated development of technical education and has to coordinate the development of technical education at all levels. it can evolve suitable performance appraisal systems under section 10(g) of the act, under section 10(i), council can lay down norms and standards for courses, curricular, physical and instructional facilities, staff pattern, staff qualifications, quality instructions etc. under section 10(o), it can provide guidelines for admission of students to technical institutions and universities imparting technical education. thus the decision taken is in accordance with the directives issued by the all india council for technical education, which have been issued under section 10 of the act of 1987, which can not be said to be in any manner running contrary to the education regulation framed by the pharmacy council of india. in academic matter which aims at standards and efficiency, it is not for court to substitute the views. the matter is for experts and academicians.17. as the counsel for the respondent no. 1 has conceded to the fact that they have to abide by the decision (p-1), dated 19-9-2002 as it has not been varied and was set aside by the respondent no. 1. some of the petitioners have submitted that their case is covered with the decision (p-1), their cases have to be examined by the university as assured by the learned counsel for the respondent no. 1 and in case they have been denied an attempt as provided in the decision (p-1) university has to allow them a chance, which was contemplated in the decision (p-1), dated 19-9-2002.18. with respect to the students, who are not covered under the said decision, it is not for this court to direct the giving of further opportunity. it is open to them to submit representation to the university as the matter is academic. this court refrain from commenting on the entitlement of the petitioners to have further opportunity as it is for the university to take the decision in academic matter. these writ petitions are disposed of in view of the above discussions. no costs.

Judgment:
ORDER

Arun Mishra, J.

1. In these writ petitions, petitioners have prayed for further opportunity for appearing in the examination of Diploma in Pharmacy Course.

2. In W.P. No. 6848/2002, petitioner Ku. Archana Mishra was admitted in Diploma in Pharmacy Course in the year 1998-99. She could not pass any paper in the examination held in May-June, 1999. She appeared in Second Year Examination held in December, 1999 and cleared 4 papers out of 6. Petitioner appeared in remaining two papers in May-June, 2000. The petitioner cleared one more paper and the one paper remained to be cleared. Petitioner was given admission in the Second Year in July, 2000. Petitioner appeared in the examination in December, 2000 for remaining one paper of First year but could not clear. She appeared in the examination held in May-June, 2001, in all the 6 appears of Second year and one paper of First year. She cleared 3 papers of the Second year, however, she could not clear the one paper of the First year. Petitioner again appeared in December, 2001, passed one more paper of Second year. Thus she has passed 4 papers out of 6 of Second year and 5 papers of First year. Thus only 2 papers of Second year and one paper of First year remained to be cleared by her. Petitioner has to appear only in 3 papers including Second year and First year.

3. Respondent No. 1 University had taken a decision to grant 'Special Compassionate Opportunity' to clear such withheld subjects. The said decision was taken by the Examination Committee in its meeting on 9th August, 2002, that the students of the batch of 1997-98 and 1998-99 should be given one special opportunity to clear their Diploma Course. Decision (P-1) issued on 19-9-2002. It was 'Vishesh Anukampa Avasar'. The petitioner deposited examination fees. An order (P-6) dated 18-11-2002 was put on notice board that such students should not be allowed further opportunity and decision dated 12-9-96 was reiterated. It is submitted that once an opportunity was granted, the rejection of the application form is illegal.

4. In W.P. No. 1863/2003, the petitioner No. 1 Pradip Kumar Tiwari was admitted in the D. Pharma First Year Course in the year 2000-01. Petitioner No. 2 was admitted to D. Pharma First Year Course in 1999. Petitioner No. 1 appeared as ex-student in first year examination and filled supplementary examination form in December, 2002. Petitioner No. 2 also filled supplementary examination form for clearing the subjects of first year, in which he had failed. The petitioner with 7 other students were informed by the Principal that they are eligible to appear in the supplementary examination in December, 2002 as per notice (A-1), dated 27-11 -2002. Petitioners were not informed that they are not going to be allowed to appear in the supplementary examination held in December, 2002. Education Regulation, 1991 for the Diploma Courses of Pharmacy issued by the Pharmacy Council of India, does not provide any time limit for completing Diploma Courses. Education Regulation of 1991 (Annexure A-2) has been relied upon. Regulation 13 (2) provides that 'a candidate who fails in theory or practical examination of a subject shall re-appear both in theory and practical of the same subject'. Thus it is submitted that students of D. Pharma are entitled to re-appear in the examination. It is not provided in the regulation that within which period students have to clear the subject of first year of D. Pharma Course. Petitioner and other students were issued examination admit cards by the respondent No. 1. Admits cards (Annexures A-3 and A-4) were issued. It is further averred in W.P. No. 1863/2003 that Pradip Kumar was admitted in the year 2000-01 in first year D. Pharma and appeared in Examination May-June, 2001. He appeared in all six subjects of first year examination. He cleared one subject and re-appeared in December, 2001, but could not clear any subject. He had applied and received his admit card to appear in the examination of December, 2002 but subsequently he has been denied the opportunity to appear in the examination. Several other students were allowed to appear in the examination. Petitioner No. 2 Ashok Dwivedi appeared in examination number of times from May June, 1999 to December, 2001 and January, 2002, as apparent from Annexures A-5 to A-10. Petitioners were not informed at the time of their admission that they will not be allowed to appear in the supplementary examination for clearing their first year course along with admission in higher classes, as opportunity was given to others, which has been denied to the petitioners, thus action is illegal and bad in law.

5. In Writ Petition No. 1705/2003, petitioner No. 1 Akash Sindhawani and petitioner No. 2 Pankaj Kumar Agrawal were admitted in the year 1997-98 in two years Diploma Course in Pharmacy. Petitioners appeared in the main examination for the relevant session and could not pass in the same examination in May-June, 1998. Petitioners passed in May-June, 2002 and became eligible for admission in Part II/Final Year of the Diploma Course. Diploma in Pharmacy is regulated by the 'Education Regulation' framed by the Pharmacy Council of India. Petitioners were provided admission in Second Year when petitioners passed first year. No regulations were framed by the University restraining the candidates like petitioner from appearing in the 2nd Year Examination, who could not pass first year examination in 2 years. Petitioners were given admission in Part-II/Final Year of Pharmacy Diploma Course. Petitioners were informed that they are debarred from appearing in the examination and from attending classes. Notice was displayed on the notice board on 27-11-2002, which has the reference to the meeting of the Examination Committee conducted on 12-11-2002. Thus the action is contrary to the regulation. Regulation 16 provides for the admission in Part II Examination, after passing Part I Course. Decision can not be applied with retrospective effect as the petitioners have passed the first year.

6. In W.P. No. 6708/2002, petitioners have been admitted to the Course in Academic Session 2000-01. Some of the petitioners were admitted in earlier academic session but could not clear examination though they have completed the requisite course. Exact date has not been given on which dates they were admitted. The petitioners have raised the submission that at the time of admission of the petitioners in the two years Diploma Course, there was no such condition that they are required to clear all the papers of First Year Examination in three attempts, failing which they would be debarred from appearing in the final year examination. The petitioners were thus acting under a bona fide belief that they would be given adequate chances for clearing all the papers of first year examination. Petitioners have now applied for appearing in the final year examination of said course as also in the remaining papers of first year examination. All the formalities in that regard have already been completed. The petitioners had deposited the fees. The examination of final year was scheduled to commence from 2-12-2002. A memo (P-2) dated 18-11-2002 was issued debarring the petitioner from appearing in the examination. Petitioners have submitted the representation (P-4) but the same has not been decided. Hence the present writ petition has been filed.

7. University has filed a return in W.P. No. 6708/2002. It is contended in the return that petitioners were admitted in two years Diploma Course of Pharmacy in Academic Session 2000-2001. As per decision (R-1), dated 12-9-1996, petitioners were required to clear all papers of first year diploma course within two academic sessions. Para 6 of said decision (R-l) provides mandatory requirement of passing the First year course within two academic sessions. All the petitioners in W.P. No. 6708/2002 could not clear all the papers of First Year Diploma course within 2 Academic Sessions. Decision (R-l) was sent to all the Colleges including the Govt. Polytechnic College, Jabalpur in the year 1996 when the decision was taken. The colleges were instructed to circulate and display the decision on the notice board. It is not possible to inform each and every student individually. The petitioners must have noticed the said decision. Petitioners were aware of the condition of clearing the papers within 2 academic sessions. They could not clear it. Respondent has acted as per decision. There is no malafide on the part of the respondent. Action is in accordance with the decision (R-l) and is bona fide.

8. Respondent No. 2 has also filed the return. Similar stand has been taken as that of the respondent No. 1. Circular (R-l), dated 12-9-96 has been relied upon. Such condition has been in existence since the year 1996. The students are bound by the condition. Forms were inadvertently forwarded. Action is in accordance with the decision (R-l).

9. A rejoinder has been filed by the petitioners in W.P. No. 6708/2002. It is contended in the rejoinder that decision dated 12-9-96 is not in accordance with law and as the matter is governed by the Education Regulation, framed by the Pharmacy Council of India in exercise of powers under Section 10 of the Pharmacy Act, 1948 with the approval of the Central Government. Education Regulation (P-5) has been relied upon. It is not provided in the regulation that in how many attempts candidates have to clear the papers. Thus decision (R-1), dated 12-9-96 is without jurisdiction. The students have been allowed further opportunity and additional chances in spite of the decision dated 12-9-96. Decision has not been applied uniformly to all the candidates. The petitioners were made to understand that they can clear a Diploma Course within 4 years. Petitioners now can not be abruptly denied appearance in the remaining papers of first year examination.

10. Counsels for the petitioners have submitted that Education Regulation, 1991 for Diploma Course in Pharmacy have been framed under Section 10 of the Pharmacy Act, 1948, which provides duration of course to be 2 academic sessions as per Regulation 6. Regulation 16 provides all candidates who appeared for all the subjects and passed Diploma in Pharmacy, Part I Examination, are eligible for promotion to the Diploma in Pharmacy, Part-II. However, failure in more than 2 subjects shall debar him/her from promotion in the Diploma in Pharmacy, Part II. Regulation 13 provides that the candidate who fails in theory or practical examination of a subject shall re-appear in theory and practical, of the same subject. Thus Counsels submit that decision (R-1), dated 12-9-1996 is bad in law and contrary to the Education Regulation.

11. The alternative submission is that when decision was taken to give another opportunity as 'Special Compassionate Opportunity' (P-1) in W.P. No. 6848/2002 with respect to the students, who were admitted in 1996-97 in the 4 years regular/part time diploma course, were to be allowed opportunity in December, 2002 and June, 2003. The students who were admitted in 3 year Diploma Course in July-August, 1997-98 were to be allowed in December, 2002 and June, 2003 in 4 years regular/part time Diploma Course were to be allowed opportunity in December, 2003 and in June, 2004 and the students admitted in July-August, 1998-99 session, were to be allowed one opportunity for 2 years diploma course in December, 2003 and students of 3 years diploma course were allowed opportunity of December, 2003 and 4 years regular/part time diploma course were allowed opportunity of clearing till December, 2004. The students who were falling within the benefit of decision (R-l), their applications were also rejected by the University.

12. Learned Counsel appearing for the respondent University has contended that decision (R-1), dated 12-9-96 is binding on the students and whatever opportunity as compassionate opportunity, could be given, have already been given as per the decision dated 19-9-2002. Petitioners were aware of the conditions and the decision (R-l), dated 12-9-96, which can not be violated as the same is based on the recommendation of All India Council of Technical Education and decision was taken by the M.P. Board of Technical Education in the joint meeting of all the Principles to implement the recommendation of clearing the course within the requisite period. The same was made effective from 1996-97 onwards. Opportunities have been provided in Para 6 of the decision first year or first semester and second semester have to be cleared in 2 years period including the year of admission. As per Para 8 of the decision contains additional sider, 2 years diploma has to be completed in 4 years, three years diploma has to be completed in 5 years and four years diploma including PTDC has to be completed in 6 years and PD/AD courses of 1 - 1/2 have to be cleared in 2 -1/2 years and 2 years such courses have to be cleared in 3 years.

13. It is further the stand taken by the learned Counsel for respondent No. 1 that University has not varied the decision (P-1), dated 19-9-2002 filed in W.P. No. 6848/2002 and the regulations of Pharmacy Council of India have not been violated by the decision in question, which is based on the recommendation made by the All India Council of Technical Education. Decision R-2 rendered in W.P. No. 2514/2002 has been relied upon, in which Division Bench of this Court has refused to interfere in the academic matter and the petitioners have prayed that there should be no restriction on candidates to appear in the examination in spite of the fact that they have not cleared all the papers in the past.

14. Coming to the first question raised by the learned Counsel for the petitioner that decision (R-1) is contrary to Education Regulation framed by Pharmacy Council of India. Section 10 of the Pharmacy Act provides that the Central Council may subject to the approval of the Central Government, make regulations, to be called the Education regulation, prescribing the minimum standard of education required for qualification as a Pharmacist. Sub-section (2) prescribes that nature and period of study and of practical training to be undertaken before admission to an examination and for any other condition of admission to examination. Section 10 of the Pharmacy Act, 1948 is quoted below :--

10. Education Regulations.-- (1) Subject to the provisions of this section, the Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulation, prescribing the minimum standard of education required for qualification as a Pharmacist.

(2) In particular and without prejudice to the generality of the foregoing power, the Education Regulations may prescribe--

(a) the nature and period of study and of practical training to be undertaken before admission to an examination;

(b) the equipment and facilities to be provided for students undergoing approved courses of study;

(c) the subjects of examination and the standards therein to be attained;

(d) any other conditions of admission to examinations.

(3) Copies of the draft of the Education Regulation and of all subsequent amendments thereof shall be furnished by the Central Council to all (State) Governments, and the Central Council shall before submitting the Education Regulations or any amendment thereof, as the case may be, to the Central Government tor approval under Sub-section (1) take into consideration the comments of any (State) Government received within three months from the furnishing of the copies as aforesaid.

(4) The Education Regulations shall be published in the Official Gazette and in such other manner as the. Central Council may direct.

(5) The Executive Committee shall from time to time report to the Central Council on the efficacy of the Education Regulations and may recommend to the Central Council such amendment thereof as it may think fit.

15. Education Regulations, which have been pressed in Service Regulations are 6, 13 and 16. Regulations 6, 13 and 16 of Education Regulations, 1991 for the Diploma Course in Pharmacy are quoted below:--

'6. Duration of Course.-- The duration of the course shall be for two academic years with each academic year spread over a period of not less than one hundred and eighty working days in addition to 500 hours practical training spread over a period of not less than 3 months.

13. Mode of Examinations.-- (1) Each theory and practical examination in the subjects mentioned in the Tables III and IV shall be of three hours duration.

(2) A candidate who fails in theory or practical examination of a subject shall re-appear both in theory and practical of the same subject.

(3) Practical examination shall also consist of a viva-voce (Oral) Examination.

16. Eligibility for promotion to Diploma in Pharmacy (Part II).-- All candidates who have appeared for all the subjects and passed the diploma in Pharmacy Part I Examination are eligible for promotion to the Diploma in Pharmacy Part II Class. However, failure in more than two subjects shall debar him/her from promotion to the Diploma in Pharmacy Part II Class.'

A reading of Regulations 6, 13 and 16 makes it clear that it is no where provided that in how many years Course has to be cleared, whether an opportunity is to be granted till the innumerable time. It has not been prescribed that within which period one has to clear the examination. Regulations are silent as such following recommendation of All India Council of Technical Education, decision was taken by the Board of Technical Education, M.P. in the year 1996, which is R-1 in W.P. No. 6848/2002, in which it has been provided that first year has to be cleared within the period of 2 years and for passing the diploma course maximum period has also been prescribed as mentioned above. All India Council of Technical Education can make recommendation as provided under Section 10 of the All India Council for Technical Education Act, 1987 and the recommendations are not in any way in derogation to the 'Education Regulation', which have been framed in the year 1991 by the Pharmacy Council of India. Thus decision which has been taken prescribing the maximum opportunity of attempt can not be said to be illegal or bad in law. Prescribing the maximum period for clearing the Course is permissible. Functions of the All India Council of Technical Education have been defined under Section 10 of the Act. Section 10 of All India Council for Technical Education Act, 1987 is quoted below :--

'10. Functions of the Council.-- It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under the Act, the Council may--

(a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;

(b) ' co-ordinate the development of technical education in the country at all levels;

(c) allocate and disburse out of the Fund of the Council such grant on such terms and conditions as it may think fit to-

(i) technical institutions, and

(ii) Universities imparting technical education in coordination with the Commission;

(d) promote innovations research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes;

(e) formulate schemes for promoting technical education for women, handicapped and weaker sections of the society;

(f) promote an effective link between technical education system and other relevant systems including research and development organisations, industry and the community;

(g) evolve suitable performance appraisal systems for technical institutions and Universities imparting technical education, incorporating norms and mechanisms for enforcing accountability;

(h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers;

(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;

(j) fix norms and guidelines for charging tuition, and other fees;

(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;

(l) advice the Central Government in respect of grant of charter to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examination and awarding of membership certificates;

(m) lay down norms for granting autonomy to technical institutions;

(n) take all necessary steps to prevent commercialization of technical education;

(o) provided guidelines for admission of students to technical institutions and Universities imparting technical education;

(p) inspect or cause to inspect any technical institution;

(q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fail to comply with the directions given by the Council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the Council;

(r) take steps to strengthen the existing organisations and to set up new organisations to ensure effective discharge of the Council's responsibilities and to create positions of professional, technical and supporting staff based on requirements;

(s) declare technical institutions at various levels and types offering courses in technical education fit to receive

grants;

(t) advice the Commission for declaring any institution imparting technical education as a deemed University;

(u) set up a National Board of Accreditation to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the Council or to the Commission or to other bodies, regarding recognition or derecognition of the institution or the programme;

(v) perform such other functions as may be prescribed.

16. Considering the functions of the All India Council for Technical Education constituted under the Act of 1987, it can not be said that directions issued by the All India Council for Technical Education are not binding. All India Council for Technical Education can issue directions for maintenance of standard and for integrated development of technical education and has to coordinate the development of Technical Education at all levels. It can evolve suitable performance appraisal systems under Section 10(g) of the Act, under Section 10(i), Council can lay down norms and standards for courses, curricular, physical and instructional facilities, staff pattern, staff qualifications, quality instructions etc. Under Section 10(o), it can provide guidelines for admission of students to technical institutions and Universities imparting technical education. Thus the decision taken is in accordance with the directives issued by the All India Council for Technical Education, which have been issued under Section 10 of the Act of 1987, which can not be said to be in any manner running contrary to the education regulation framed by the Pharmacy Council of India. In academic matter which aims at standards and efficiency, it is not for Court to substitute the views. The matter is for experts and academicians.

17. As the Counsel for the respondent No. 1 has conceded to the fact that they have to abide by the decision (P-1), dated 19-9-2002 as it has not been varied and was set aside by the respondent No. 1. Some of the petitioners have submitted that their case is covered with the decision (P-1), their cases have to be examined by the University as assured by the learned Counsel for the respondent No. 1 and in case they have been denied an attempt as provided in the decision (P-1) University has to allow them a chance, which was contemplated in the decision (P-1), dated 19-9-2002.

18. With respect to the students, who are not covered under the said decision, it is not for this Court to direct the giving of further opportunity. It is open to them to submit representation to the University as the matter is academic. This Court refrain from commenting on the entitlement of the petitioners to have further opportunity as it is for the University to take the decision in academic matter. These writ petitions are disposed of in view of the above discussions. No costs.