Kanwaljit Singh Ahluwalia, JIn the present writ petition, interpretation of Rule 3(B) of Rules for Preparation of Merit List and Award of Merit Certificates and Rules for Award of Medals and Conditions for the Awards of Medals (hereinafter called Rules) notified by Maharshi Dayanand Saraswati University, Ajmer (hereinafter called the University) is called for.

2. Rule 3 lays the condition for award of medals. It will be apposite here to reproduce Rule 3 of the above said Rules as under:-

"3. Other Conditions for Award Medals:

(a) Bachelors Degree Examinations

The candidate must have passed the examination in First Division and in the first attempt and also must have passed all the parts i.e. First year, Second Year and Final Year examinations, in the first attempt and in consecutive years.

(b) Post-graduate Examinations (Academic)

The candidate must have passed the examination in first division. He/She should have further passed both Previous and Final examination in the first attempt and in consecutive years.

In the case of the Chancellors Gold Medal, the recipient shall further satisfy the following condition:

(i) He shall have obtained highest number of aggregate marks among the successful in the Faculty concerned at the examination held during the last 5 years and for this purpose the subjects assigned to each Faculty shall be as under:-"

3. The question posed before this Court is as what is connotation of the word first attempt and whether it may be interpreted to say that same will mean first occasion, first opportunity or at first instance. Before this Court endeavour to opine, it will be apposite here to notice the brief facts of the case.

4. The petitioner Sovila Mathur, enrolled herself as Non-collegiate student for Post Graduate Course in the stream of Economics, a course conducted by the University. It is admitted case of the petitioner and the University that M.A. (Economics) Course is of two years and a candidate has to pass papers in nine subjects to obtain degree of M.A. (Economics). In M.A. Previous, four subject papers are to be undertaken by the candidate and in M.A. Final, a candidate has to appear in five papers. It is also not denied by the counsel for the University that a candidate who appear in M.A. Previous in two papers, can carry forward other two papers to the next year and thus, candidates is provisionally promoted to the next year and is granted an opportunity to take remaining paper in the next year along with papers of M.A. Final. The petitioner in the present case enrolled herself as student for academic Session 2009-2010. She appeared in two papers. In remaining two papers, she remained absent and those two papers were carried forward. In M.A. Final, she appeared in five subject papers along with two carry forward subjects of M.A. Previous. She passed all the seven papers and has obtained highest marks. On the basis of marks obtained by the petitioner, according to her counsel she is entitled to be awarded Gold Medal. The University in the convocation to be held on 5.10.2015 has decided not to award Gold Medal to the petitioner on the ground that she had not passed all papers in the first attempt.

5. Mr. Bhrigu Sharma assisted by Ms. Anshul Sharma, the learned counsel appearing for the petitioner has contended that the petitioner passed all the papers in the first attempt.

6. On the other hand, Mr. Ravi Chirania, the learned counsel appearing on behalf of the University, has contended that since the petitioner had not undertaken two papers of M.A. Previous and carried forward the same to the next year, the petitioner has not passed the examination in the first attempt and thus, it cannot be said that she cleared all the papers in first attempt. Hence, the interpretation of the word first attempt used in rule 3(B) of the Rules has been called for.

7. The controversy raised is not new to the courts. What is the meaning of the word first attempt was considered in the case of Sandeep Shenai Vs. Mangalore University, Mangalore and another, AIR 1992 Kar 202 : (1991) 2 KarLJ 140 , wherein the contention of the learned counsel for the petitioner in that case was noted as under:-

"Sri S. Vijayashankar, learned counsel appearing for the petitioner, submitted that what is contemplated under the aforesaid Ordinance as an attempt, must be understood to mean an attempt at an examination by writing the answers to the questions and has not been successful at the examination. According to him a mere payment of the examination fee and registration of the candidate at an examination cannot be construed as an attempt or failure at an examination. He relied on a decision of the Supreme Court in Abhijit Vs. Dean, Government Medical College, Aurangabad and Another, AIR 1987 SC 1362 : (1987) 2 JT 588 : (1987) 1 SCALE 1042 : (1987) 3 SCC 478 : (1987) 1 UJ 691 in support of his submission that the circumstances which prevented the candidate from taking an examination should not be treated as an attempt which would disqualify the candidate from obtaining the academic distinction. He submitted that the petitioner has throughout maintained excellent academic record as is evident from his performance at the I Year, II Year and Final Year M.B.B.S. examinations."

8. The Karnataka High Court in interpreting the word attempt relied upon the case Abhijit Vs. Dean, Government Medical College, Aurangabad and Another, AIR 1987 SC 1362 : (1987) 2 JT 588 : (1987) 1 SCALE 1042 : (1987) 3 SCC 478 : (1987) 1 UJ 691 rendered by the Honble Supreme Court, and held as under:-

"In the case of Abhijit V. Dean, Medical College, the Supreme Court was interpreting a note under Rule IV.5(e) of the Rules for Appointment of Residents under the III Year Residency Programmes at Government Medical Colleges, which reads as hereunder:

"For the purpose of the reductions, non-appearance at any examination when due, is deemed as an attempt at the said examination."

The following observation of the Supreme Court in the above context is relevant for the purpose of determining the question raised in this petition.

"We are also of the view that if the rule has the effect of treating failure to appear at the examination because of serious illness as non-appearance at the examination so as to make the candidate liable to a deduction of five per cent of marks when seeking admission to a Post-Graduate course the rule is indeed arbitrary."

I may also usefully refer to a Division Bench decision of this Court in Guru Murthi V. University of Mysore 1963 Mys LJ (Suppl) 512 where this Court observed as follows in the context of an Ordinance of the Mysore University which limited the number of attempts a student can make to pass an examination. The relevant portion of the observation is at page 520. It reads thus:

"It is not inconceivable that a student who has given a glorious account, of himself in his preliminary examination finds it difficult to pass the final examination in his first attempt for a multitude of reasons over which he has no control such as his own illness or some adversity in his family. If a person in that situation who did not in the exercise of his wisdom desist from taking the examination but indiscreetly sat for the examination and failed in it and that failure was ascribable to the pressure of adventitious external circumstances, he would find himself in the difficult predicament of never again being able to take the final examination but driven to the necessity of consoling himself with the thought that he can get at least an ordinary B.Sc. degree if the Academic Council in the exercise of its discretion permitted him to sit again for that examination. That Ordinance 92(c) can penalise a person of exceptional attainments by subjecting him to the mechanical grinding of an automation during the most plastic years of human life as if the University is a mere foundry or a mint is what may be urged as the most effective criticism of the reasonableness of its provisions. To this reproach may be added the further denunciation that, this clause which in its operation confronts a person of real promise and merit with impediments more formidable than those placed in the way of one who took his own time to succeed in the preliminary examination but was able to pass the final examination in his first attempt, discounts merits and favours accidental success. That that is not how a university should function which, being the alma matter as it is called, should nurture its children by a benevolent though proper assessment of the attainment of each one of them is it should be admitted one of the most modern educational ideals."

Keeping in view the above decisions, in my opinion, in the instant case, the non-appearance of the petitioner because of illness, at the Final M.B.B.S. examination held in the month of January 1989 cannot be considered as an attempt and therefore the petitioner is entitled to the reliefs sought."

(Emphasis supplied)

9. The same controversy was also raised before Madras High Court in the case of Pooja Bagri Vs. The Registrar, University of Madras, University Buildings, Chepauk, Chennai-5 and The Controller of Examinations, University of Madras, University Buildings, Chepauk, Chennai-5 . The Madras High Court in the case of Pooja Bagri (supra) relying upon the judgment of Honble Supreme Court in Abhijit (supra), noted difference between the word attempt and instance and held as under:-

"24. The above said Rule defines the word "attempt" and not "instance" as employed in the Regulations of the University of Madras. The liberal meaning of the word, "instance" means "occasion" and therefore, the first occasion for the Petitioner to take up the examination as per the schedule is April, 1999 along with other students in the batch. The judgment relied on by the learned Counsel for the Petitioner is inapposite to the facts of this case."

10. To understand, what is the meaning of the word attempt shorn of legal parlance, one can refer to the dictionary meaning.

11. In the New Shorter Oxford English Dictionary-Volume-I, the meaning of the word attempt has been given as An act of making an effort to accomplish something uncertain or difficult; a trial, an endeavour (esp. when unsuccessful or incomplete). According to The Random House Dictionary of the English Language-College Edition, the word attempt has been defined as To make an effort at; try; undertake; seek. According to Websters Third New International Dictionary of the English Language Unabridged, Volume I, the meaning of the word attempt is To make an effort to do, accomplish, solve, or effect - often used in venturous or experimental situations sometimes with implications of failure.

12. The word attempt means having tried or having made an effort. It is admitted case of the University that when for the first time, the petitioner appeared for each paper, she had cleared the papers successfully. Therefore, the word attempt is not to be used as synonyms for the opportunity or the occasion. The petitioner had an opportunity or occasion to appear in the examination qua two papers which she carried forward, but she had not availed the opportunity or the occasion provided as she had not attempted to give the examination. The University permitted the petitioner to carry forward the papers and therefore, the petitioner in first attempt has passed all the papers. Therefore, this Court, prima facie is of the view that interpretation of the Rule has to go in favour of the petitioner.

13. The above is only prima facie opinion of this Court. However, this Court has not formulated any conclusive opinion as the next candidate to whom the University has decided to award Gold Medal has not been impleaded as respondent to the present writ petition. It is equally possible that if an opportunity is granted, the candidate who has been selected by the University for grant of Gold Medal may turn the tables, and give a new interpretation to the word attempt before this Court.

14. To non-suit the petitioner for non-impleadment of necessary candidate will be a too technical view as the petitioner by dint of hardwork and labour, having toiled had obtained more marks. Therefore, equity flows in the favour of the petitioner at this juncture. Therefore, an opportunity is afforded to the petitioner to implead next candidate who is to be awarded Gold Medal by the University, as party respondent.

15. Thus, this court is of the view that award of Gold Medal for subject of M.A. Economics, can be kept in abeyance and subject to outcome of this writ petition, Gold Medal for academic year 2010-2011 can be awarded in the next convocation to the candidate in whose favour the interpretation of word first attempt will be rendered. Therefore, the University through counsel Mr. Ravi Chirania is directed to keep award of Gold Medal in abeyance in subject of M.A. Economics till the next convocation.

16. At this stage, Mr. Ravi Chirania, the learned counsel appearing on behalf of the University has submitted that he has specific instructions from the University that for success and grandeur of the convocation, this Court may permit award of Gold Medal to next candidate with an undertaking that in case, the writ petition is decided in favour of the petitioner, she shall also be awarded Gold Medal additionally qua academic session 2010-11 in the next convocation.

17. In the terms of the undertaking given by the learned counsel for the respondent-University, the Vice Chancellor of the University is directed to pass an order whether award of Gold Medal for M.A. (Economics) 2010-2011 is to be kept in abeyance or whether petitioner shall be awarded additional Gold Medal for academic session 2010-2011 in the convocation to be held in the next year.

18. List for further proceedings on 28.10.2015.