GULABCHAND Vs. UNIVERSITY OF JODHPUR

JUDGEMENT

(1.) AFTER the decision of the Supreme Court in Civil Appeal No. 4159/83 University of Jodhpur v. Kamlesh Kumar Khatri, decided on December 5, 1984 this writ petition has to be dismissed as their Lordships of the Supreme Court have not agreed with the view taken by the Division Bench of this Court. In the aforesaid appeal, that view has been reversed and their Lordships of the Supreme Court have agreed with the view taken by the learned Single Judge of this Court in SB. Civil Writ Petition No. 442 of 1982 - Sitaram v. University of Jodhpur, decided on May 12, 1982,

(2.) ALTHOUGH , the writ petition has to be dismissed but a controversy has arisen in this writ petition as to whether the petitioner can be allowed to take the benefit or advantage of an interim , order passed by this Court in pursuance of which the petitioner has given an undertaking to the effect that he will not claim any benefit and advantage under the interim order of this Court. The petitioner, under the interim order was allowed to keep terms and in pursuance thereof the petitioner has appeared in the' next higher class keeping terms. It may also be stated here that a regular examination was also conducted in October 1984, but in view of the interim order of this Court the petitioner could not appear in that regular examination held in 1984.

(3.) HOW far the above contentions have validity and force, can he examined in the light of the circumstances, which cannot be lost sight of. It may stated that a final view was given by a Division Bench of this court. Till that view is set aside the view given by the Division Bench was binding on all courts and authorities in the Mate of Rajasthan and under the decision of the Division Bench, benefit of admission could have been and should have been given to the petitioner keeping terms. In Kamlesh Kumar Khatri's appeal before the Supreme Court, the operation of the Division Bench's decision was not stayed. So the view of the Division Bench was good and in accordance with that view, it became the bounden duty of all to abide by that decision. so far as Kamlesh Kumar Khatri's case is concerned it is true that special leave was granted by the Supreme Court subject to the condition that the order granting leave will not prejudice the respondent Kamlesh Kumar Khatri was allowed to keep terras pursuant to the order of the Division Bench. However, the Supreme Court, while allowing the appeal in its order made it clear that the order of the Supreme Court will not in any way prejudice Shri Khatri. This Court directed the petitioner to furnish an undertaking, pursuant to which undertaking was given This Court could have passed the interim order in the right of the Division Bench decision which, was binding on the Single Judge. Direction of giving an undertaking would not in any way affect the petitioner's case. In any case, the petitioner was allowed to sake admission keeping terms and the University under the orders of the Court gave admission. If this Court allows the petitioner to take benefit or advantage under the orders of the Court, then this by no stretch of imagination can be considered to constitute breach of undertaking on the part of petitioner. In my opinion, considerations of equity cannot be ignored by this Court, despite the fact that under the direction of this Court an undertaking has been furnished by the petitioner. Petitioner's interest otherwise would suffer in the manner that when he has been given admission keeping terms, he could not undertake examination, which was held by the University in October, 1984. The matter can also be judged from this aspect as well that the writ petition could have been disposed of in the light of the Division Bench decision, then the petitioner would have become entitled to keep terms. In view of Kamleshkumar Khatri's case pending before the Supreme Court, this petition was not disposed of.