Page No.# 1/10 GAHC010134732021 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4283/2021 BIPUL BRAHMA AND 8 ORS. S/O LATE KAMAL KT BRAHMA RESIDENT OF UTTAR BURIKHAMAR, PO PANBARI, DIST CHIRANG, ASSAM 783391 2: DURGA SAHA S/O SRIDAM SAHA RESIDENT OF BARPETA ROAD PO BARPETA ROAD ASSAM 781315 3: MOUSUMI RAJBONSHI S/O CHANDRA RAJBONSHI RESIDENT OF KATAJHAR PATHAR DIST BARPETA ASSAM 781315 4: RANJIT NATH S/O GOJEN NATH RESIDENT OF JAKHILIRPAR (JYOTI NAGAR) BARPETA ROAD PO SIMLAGURI 781313 BAKSA 5: HAYENCHA BASUMATARY D/O BIRENDRA BASUMATARY R/O MOINAMATA PATHAR PO MOINAMATA 781315 BAKSA Page No.# 2/10 6: GWHWWM SWARGIARY S/O MANI RAM SWARGIARY RESIDENT OF BAHBARI (BATABARI) PO KALPANI BAZAR DIST BAKSA ASSAM 781315 7: DEVID MAHANTA S/O ARUN MAHANTA RESIDENT OF BAKHAPARA PART 2 PO AND DIST BONGAIGAON ASSAM 783380 8: JENI MUSHAHARY S/O BISWA NATH MUSHAHARY RESIDENT OF MAINAMATA PATHAR PO MAINAMATA BAKSA 781315 9: NITUL ALOM AHMED S/O ALAUDDIN AHMED HOUSE NO. 395 WARD NO. 5 NAYAPARA PO ABHAYAPURI ASSAM 78338 VERSUS THE BODOLAND UNIVERSITY AND 4 ORS. REPRESENTED BY THE REGISTRAR, DEBARGAON, PO RANGALIKHATA, KOKRAJHAR, BTC, ASSAM 2:THE REGISTRAR BODOLAND UNIVERSITY. DEBARGAON PO RANGALIKHATA KOKRAJHAR BTC ASSAM 3:THE CONTROLLER OF EXAMINATION BODOLAND UNIVERSITY. DEBARGAON PO RANGALIKHATA KOKRAJHAR Page No.# 3/10 BTC ASSAM 4:THE UNIVERSITY GRANT COMMISSION REPRESENTED BY THE SECRETARY BAHADUR SAH ZAFAR MARG NEW DELHI 5:THE DORNACHARYA ACADEMI REPRESENTED BY ITS PRINCIPAL BELGURI PO SIMLAGURI NEW BARPETA ROAD BARPETA ASSA Advocate for the Petitioner : MR B P BORAH, MR P J DUTTA,MR R S RONGHANG Advocate for the Respondent : SC, U G C, MS. K. BORPUJARI , SC, THE UNIVERSITY GRANT COMMISSION,MR. A ROY,SC, BODOLAND UNIVERSITY BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 10.04.2025 Heard Mr. B.P. Borah, learned counsel for the petitioners. Also heard Mr. K.K. Dey, learned standing counsel, Bodoland University, appearing for the respondent Nos.1—3 and Mr. Y.N. Mahanta, learned counsel appearing on behalf of Mr. A. Chamuah, learned standing counsel, UGC, for the respondent No.4. None appears for the respondent No.5. 2. In this petition under Article 226 of the Constitution of India, the petitioners have prayed for issuing direction to the respondent authorities to allow the petitioners to appear in the examination in backlog subjects in 2021 examination commencing from 02.09.2021 as per Bodoland University Regulation, in under Graduate Degree Examination, under Choice Based Credit System and UGC Notification, dated Page No.# 4/10 15.10.2015, and further to declare the results in accordance with law and to issue admit card for appearing in the examination of BA/B.Sc./BCA/B.Sc. IT commencing from 02.09.2021 under Bodoland University in the year 2021. 3. The background facts leading to filing of the present petition is briefly stated as under:- “The petitioners, 9 in numbers, are students of Bodoland University and they have cleared their 6th semester final examination of the degree course and they will appear for 3rd time to clear their backlog papers of 1st and 2nd semesters. They had also filled up the necessary forms for appearing in the examination, except petitioner No.9 and were expecting their admit cards to be issued for appearing in the examination. But when they approached the University for collecting their admit cards, the authority has refused to issue admit cards citing that they have exhausted all their chances for clearing their backlog papers. In spite of their request for allowing them to appear in the examination and to issue admit cards, the authority has failed to consider the same favourably. The pleaded case of the petitioners is that the Bodoland University is a University under Section 12B of the UGC Act and it has their own regulation regarding performance appraisal and examination form for every student. Clause 5 of the Bodoland University Regulation provides under graduate degree examination under CBCS, 2015 states that no students shall be allowed to appear in any course more than 3 chances including the regular chances within 5 years of his date of admission and Regulation 19.6 provides that no students shall be allowed to appear for a particular course more than twice, excluding the 1st appearance, which shall include the papers which the candidate opt not to appear within the maximum time allowed and the petitioners are entitled to appear in the examination as per Clause 5 and Clause 19 of the aforementioned regulation and which is consistent with the notification of UGC dated 15.10.2015. But, in violation of aforementioned regulation and UGC notification, the Page No.# 5/10 petitioners were not allowed to appear in the backlog examination in their respective subjects. Being aggrieved, the petitioners approached this Court by filing the present writ petition praying for aforementioned relief.” 4. It is to be noted here that while the petition was moved on 31.08.2021, this Court, after hearing both the parties was pleased to direct the respondent Bodoland University as well as the respondent No.5, being the College authority to provide them an admit card to enable them to appear in the respective backlog papers in the ensuing examination that are supposed to be held from 02.09.2021 and it was also observed that issuance of such admit cards shall be subject to outcome of the present writ petition and further, provided that the respondent authorities shall also consider the claim of the petitioner No.9 if approached in appropriate form. 5. The respondent No.1 to 3, in their affidavit in opposition, had taken a stand that the petitioners are not entitled to appear in the examination in question. It is also stated that in accordance with the Clause 19 of the Bodoland University Regulation on UG Examination, the third and the last chance of petitioner No.1 to 8 to clear their first semester backlog examination was in the corresponding end semester examination in 2019. The petitioners did not opt to appear for their third and last attempt for backlog examination in the year 2019 and this is counted as last chance under clause 19 of the Regulation of Bodoland University. And the petitioners, thus exhausted their three chances, including the last chance in the year 2019, to appear for a backlog with the maximum time permitted under the Regulation. It is also stated that petitioner No.9 had not filled up the form also. It is further stated that the petitioners, for their own laches and negligence failed to appear in the examination and now they cannot derive any benefit for the same. Further, it is stated that under Clause 19.3 of the Regulation an unsuccessful student of a semester shall normally be promoted to next semester but the students shall have to clear any arrear of backlog paper in the corresponding End- semester examination scheduled under Clause 19.5. And additionally, clause 19.6 provides that no student shall be allowed to appear for a particular course more than twice (excluding the first appearance) which shall include the paper(s) which the Page No.# 6/10 candidate opts not to appear within the maximum time allowed. It is also stated that the petitioners had appeared in their first semester examination in the year 2017 and they had a chance to appear for their backlog papers in the corresponding end- semester examination in the year 2018 simultaneously with their regular third semester examination and then again had another chance in the next corresponding end- semester examination in the year 2019 simultaneously with their regular fifth semester examination. But, having not opted to appear for their backlog examination in 2019 simultaneously along with their regular fifth semester examination, the petitioners have lost their chance of a third attempt by the provisions of Clause 19.5 and 19.6 of the Regulation. Under such circumstances, it is contended to dismiss the petition. 6. The petitioners had filed their affidavit in reply denying the assertion and averment made in the affidavit-in-opposition. It is stated that Clause 19.2 is not applicable in the present case and that the petitioners had filled up form in the year 2017, 2018 and 2021 to clear their respective backlog papers and had appeared in the backlog papers for their third attempt and as such, the interpretation given by the respondents are not correct and this Clause has to be read with Clause 5.3. of the Regulation which allows the students to avail three chances within 5 years and as such the attempts of the petitioners are valid attempt and the same is consistent with UGC Regulation and Notification made under UGC Regulation dated 15.10.2015. It is further stated that the petitioner No.1 to 8 are similarly situated with that of petitioner No.9 whose result has been declared by the respondent authority and on such count, the petitioners have been discriminated without intelligible differentia. 7. Mr. Borah, learned counsel for the petitioners submits that after the order dated 31.08.2021, the respondent authorities have issued admit cards to the petitioners and accordingly, they have appeared in the examination. But, the authority has not declared the result till date. Mr. Borah further submits that as per Regulation 5.3, the petitioners are entitled to 3 chances within 5 years and one chance remained with the petitioners and in view of the provisions of Regulation 19.5, they are entitled to appear in the examination, which provides that the students have to appear in the Page No.# 7/10 arrear or backlog paper in correspondence in semester examination, in the manner that in respect of 1st semester it has to be within the 3rd semester, in respect of 2nd semester it has to be within the 4th semester. Mr. Borah further submits that the petitioners have not exhausted the 3rd opportunity and as such, they are entitled to appear and accordingly, they have appeared in the examination and now the result has to be declared. Further, Mr. Borah pointed out that the petitioner No.1 to 8 are similarly situated with that of petitioner No.9, and the respondent authorities had declared the result of petitioner No.9 and on such count, the petitioners have been discriminated without intelligible differentia. Further, Mr. Borah submits that Clause 19.2 has to be read with Clause 5.3. of the Regulation. Mr. Borah, therefore, contended that necessary direction may be issued to the respondent authorities. 8. On the other hand, Mr. Dey, learned standing counsel for the respondent Bodoland University, referring to Clause 19.5 of the Regulation submits that the students should have to appear in the arrear or backlog in the corresponding end semester examination in the manner that in respect of 1st semester, it has to be within the 3rd semester, in respect of 2nd semester, it has to be within the 4th semester. Mr. Dey, further submits that the petitioners are in 6th semester and therefore, in terms of Clause 19.5 of the Regulation, their opportunity to appear respectively at the end of the 3rd semester and at the end of the 4th semester are already over and therefore, they are not entitled to any further opportunity and therefore, Mr. Dey has contended to dismiss the petition. 9. Mr. Dey has also referred to a decision of this Court in WP(C) No.3760/2022, wherein the validity of Regulation 5.3 and 19.6 are upheld, being consonants with the UGC guidelines. 10. In his reply, Mr. Borah, learned counsel for the petitioners, submits that the decision referred by Mr. Dey is not at all applicable herein this case and since the petitioners have already appeared in the examination and by exercising the equitable Page No.# 8/10 jurisdiction, this Court may direct the respondent authorities to declare their results. 11. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the Bodoland University Regulation. 12. It is to be noted here that Clause 5.3 of the Bodoland University Regulation read as under:- “No student shall be allowed to appear in any course more than 3 chances (including the regular chance) within 5 years from his /her first admission.” 13. Further it appears that Clause 19.5 of the said Regulation read as under:- “All students, who are placed in ‘F’ or ‘I’ grade in any semester examination, shall have to clear the ‘arrear’ or ‘backlog’ paper(s) in corresponding End-semester examination as schedule below:- (i) 1st semester with regular 3rd semester, (ii) 2nd semester with regular 4th semester, (iii)3rd semester with regular 5th semester, (iv) 4th semester with regular 6th semester, 14. A conjoint reading of both the clause goes to show that the petitioners are entitled to three chances. If the interpretation put forwarded by Mr. Dey, learned standing counsel for the respondent Bodoland University, in respect of Clause-19.5 is accepted then it would render the Clause 5.3 meaningless. And as such both the clauses are to be read harmoniously. And having read both the clauses harmoniously, it appears to this Court that Clause 5.3 is a leading provision and the Clause No. 19.5 appears to a subordinate provision and Clause 19.5 must give way to the Clause 5.3. In arriving such a finding, this Court gain sustenance from the following decisions of Hon’ble Supreme Court. 15. In the case of S. Nagraj (Dead) by LRs & Ors. vs. B. R. Vasudeva Page No.# 9/10 Murthy & Ors., reported in (2010) 3 SCC 353, Hon’ble Supreme Court has held that statutes opposing provisions but with same subject matter have to be read together. Again, in the case of SBEC Sugar Ltd & Anr. vs. Union of India & Ors., reported in (2011) 4 SCC 668, it was held that a cardinal principle of construction is that the provisions of the notification have to be harmoniously construed as to prevent any conflict with the provisions of the statute. Again, in the case of Union of India & Ors. Vs Dileep Kumar Singh, Civil Appeal Nos. 2466-2467 OF 2015, Hon’ble Supreme Court has held that the provisions of statute must be read harmoniously together. Where this is not possible and there is irreconcilable conflict between two sections, it must be determined which provision is leading provision and which provision is subordinate provision and that which one must give way to the other. 16. It is also to be noted here that the relief granted by exercising the jurisdiction under Article 226 of the Constitution of India is an equitable relief. There is no dispute about it. Reference in this context can be made to a decision of Hon’ble Supreme Court in K.D. Sharma v. SAIL, reported in (2008) 12 SCC 481, and is to be exercised to reach injustice wherever it is found [see- Secy., ONGC Ltd. v s . V.U. Warrier, reported in 2005 (5) SCC 245]. 17. In the instant case, the petitioners have already been permitted to appear in the examination and Mr. Borah, learned counsel for the petitioners has submitted with vehemence that the petitioners have not availed the 3rd opportunity, which they are entitled to as per the Bodoland University Regulation. This fact is not disputed by the respondent authorities. 18. Though Mr. Dey, learned standing counsel for the respondent in Bodoland University has referred to Clause 19.5 of the Regulation, yet, a question was put by this Court in the order dated 31.08.2021 as to whether the Clause 19.5 of the Regulation is directory or mandatory in nature and if it is mandatory, under what circumstances the petitioners were allowed to pursue their course up to 6th semester if they had not Page No.# 10/10 cleared the backlog papers in the 1st semester within the 3rd semester and 2nd semester within the 4th semester, Mr. Dey, learned standing counsel for the respondent Bodoland University has failed to offer any satisfactory explanation for the same. 19. Further, it appears from the affidavit in reply submitted by the petitioners that the petitioner No.1 to 8 are similarly situated with that of petitioner No.9, and the respondent authorities had declared his result. And as such, the petitioner No.1 to 8 had received discriminatory treatment from the respondent authority with no intelligible differentia. 20. Thus, the action of the respondent Bodoland University appears to be arbitrary and illegal as the same jeopardising the career of the petitioners’ No. 1 to 8. The petitioners cannot be allowed to be left in the lurch. 21. Under such circumstances, and also considering the relief being sought for under Article 226 of the Constitution of India, which is equitable in nature, this Court is of the view that this petition deserves to be allowed and accordingly, the same stands allowed. 22. The respondents in Bodoland University are directed to declare the result of the petitioners within a period of 15(fifteen) days from the date of receipt of certified copy of this order. The petitioners shall obtain a certified copy of this order and place the same before the respondent authorities. 23. In terms of above this writ petition stands disposed of, leaving the parties to bear their own costs. JUDGE Comparing Assistant