# Deo Raj v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-03
- **Case number:** Civil Misc. Writ Petition No. 1255 of 2005
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deo-raj-v-state-of-u-p-and-others-40401
- **Pages:** 8

## Headnote

U.P. Minor Minerals (Concession) Rules
1963-Rule-6A-78-
readwith
Indian
Limitation Act-Section 5-State authority
hearing revision acts as a statutory
authority but not as a Court-Rule 6-A
empowers the Govt. to Condone the
delay in filing renewal application-No
provision to Condone the delay in filing
revision-Condoning the delay in filing
revision illegal, but the Govt. has liberty
to exercise suo moto power.

Held: Para 17 & 19

The U.P. Minor Minerals (Concession)
Rules, 1963 has been framed in exercise
of power under Section 15 of the Mines
and
Minerals
(Regulation
and
Development) Act. 1957. From the U.P.
Minor Minerals (Concession) Rules, 1963
there is no indication that the State
Government while hearing revision acts
as a court. The State Government while
hearing revision under Rule 78 is an
statutory authority to hear the revision
and does not act as court.

The State Government while hearing a
revision under rule 78 cannot be held a
court nor it can be said that it has
trappings of the court while deciding a
revision. In this view of the matter
Section 5 of the Limitation Act was not
applicable
ipso
facto
unless
the
Limitation Act or any provisions of the
Limitation Act is specifically applied. To
the contrary under the rules there are
provisions in which power to condone
the delay in making an application has
been specifically provided. As noted
above,
rule
6-A
(2)
specifically
empowers the State Government to
condone the delay in making application
for renewal of the mining lease after the
period specified under sub rule (1). No
such provisions have been made under
rule 78 on which it can be safely inferred
that
the
State
Legislature
intend
applicability
of
Section
5
of
the
Limitation Act under rule 78 of the Rules.
Case law discussed:
1996 (9) SCC 414
2004 (4) SCC 252
2000 (5) SCC 355
1981 ALJ 641
1947 (4) SCC 22
2004 (4) SCC 252

## Text

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1All]
Deo Raj V. State of U.P. and others
195
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2005

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 1255 of 2005

Deo Raj

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Mukesh Prasad
S.C.

U.P. Minor Minerals (Concession) Rules
1963-Rule-6A-78-
readwith
Indian
Limitation Act-Section 5-State authority
hearing revision acts as a statutory
authority but not as a Court-Rule 6-A
empowers the Govt. to Condone the
delay in filing renewal application-No
provision to Condone the delay in filing
revision-Condoning the delay in filing
revision illegal, but the Govt. has liberty
to exercise suo moto power.

Held: Para 17 & 19

The U.P. Minor Minerals (Concession)
Rules, 1963 has been framed in exercise
of power under Section 15 of the Mines
and
Minerals
(Regulation
and
Development) Act. 1957. From the U.P.
Minor Minerals (Concession) Rules, 1963
there is no indication that the State
Government while hearing revision acts
as a court. The State Government while
hearing revision under Rule 78 is an
statutory authority to hear the revision
and does not act as court.

The State Government while hearing a
revision under rule 78 cannot be held a
court nor it can be said that it has
trappings of the court while deciding a
revision. In this view of the matter
Section 5 of the Limitation Act was not
applicable
ipso
facto
unless
the
Limitation Act or any provisions of the
Limitation Act is specifically applied. To
the contrary under the rules there are
provisions in which power to condone
the delay in making an application has
been specifically provided. As noted
above,
rule
6-A
(2)
specifically
empowers the State Government to
condone the delay in making application
for renewal of the mining lease after the
period specified under sub rule (1). No
such provisions have been made under
rule 78 on which it can be safely inferred
that
the
State
Legislature
intend
applicability
of
Section
5
of
the
Limitation Act under rule 78 of the Rules.
Case law discussed:
1996 (9) SCC 414
2004 (4) SCC 252
2000 (5) SCC 355
1981 ALJ 641
1947 (4) SCC 22
2004 (4) SCC 252

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Arvind Srivastava
learned counsel for the petitioner, Sri
Mukesh
Prasad,
learned
counsel
appearing for the respondent no. 4 and the
learned standing counsel. Counter and
rejoinder affidavits have been exchanged,
by consent of parties the writ petition is
being finally decided.

2. By this writ petition the petitioner
has prayed for quashing the order dated
15.12.2004 passed by the respondent no.
1 by which preliminary objections raised
against the maintainability of the revision
were rejected. The delay in filing the
revision by the respondent no. 4 was
condoned. Brief facts necessary for
deciding the controversy raised in this
writ petition are:
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INDIAN LAW REPORTS ALLAHABAD SERIES
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3. The petitioner was granted a
mining lease under Chapter II of the U.P.
Minor Minerals (Concession) Rules, 1963
(hereinafter referred to "1963 Rules") in
the year 1997 for a period of three years.
The renewal for a further period of three
years was granted by the order dated
18.2.2000. Another application for
renewal of the mining lease was given by
the petitioner under rule 6 A of 1963
Rules. The District Magistrate by an
order dated 24.11.2003 renewed the lease
in favour of the petitioner for a period of
three years. A writ petition No. 20846 of
2004 Santosh Kumar Singh Vs. State of
U.P. & others had been filed challenging
the renewal of the lease dated 24.11.2003
which
writ
petition
is
pending
consideration. The respondent no. 4 filed
revision under rule 78 of 1963 Rules
before the State Government praying for
setting aside the order of the District
Magistrate renewing and registering the
mining lease in favour of the petitioner.
On the revision filed by the respondent
no. 4 notices were issued to the petitioner.
The revision was filed by the petitioner on
4.6.2004. The petitioner appeared in the
revision and raised objection regarding
maintainability of the revision. Petitioner
raised objections before the revisional
authority that the revision is barred by
time having not been filed within ninety
days from the date of order of the District
Magistrate, the same is liable to be
dismissed as barred by time. Section 5 of
the Limitation Act is not applicable while
hearing the revision under rule 78 and
there being no power of condonation of
delay, the revision was liable to be
rejected. It was further contended that the
petitioner has no locus standi to challenge
the order of the District Magistrate
renewing the lease in favour of the
petitioner. The revision being not
accompanied by any application for
condonation of delay, the revisional
authority could not have condoned the
delay in filing the revision. There was no
illegality in the renewal of mining lease of
the petitioner. The revisional authority
without applying its mind to the facts of
the case illegally condoned the delay in
filing the revision.

4. Learned counsel for the petitioner
has also placed reliance on the judgment
of the apex Court (1996) 9 SCC 414
Officer
on
Special
Duty
(Land
Acquisition) and another Versus Shah
Manilal Chandulal and others and
(2004) 4 Supreme Court Cases 252 Gopal
Sardar Versus Karuna Sardar.

5. Sri Mukesh Prasad learned
counsel appearing for the respondent no.
4 refuting the submission of the counsel
for the petitioner contended that Section 5
of the Limitation Act is fully applicable
under rule 78 of the 1963 Rules. The
revisional
court
had
jurisdiction
to
condone the delay under Section 5 of the
Limitation Act. It is further contended
that there was no requirement of filing of
any formal application for condonation of
delay. The respondent no. 4 had locus
standi to challenge the renewal of the
lease in favour of the petitioner. Sri
Mukesh Prasad placed reliance on the
judgment of the apex Court; (2000) 5
Supreme Court Cases 355 P. Sarthy
Versus State Babnk of India; 2000 (6)
Supreme
Court
Cases
94
Essar
Constructions Versus N. P. Rama
Krishna Reddy and 1981 All. L. J. 641
Shiv Charan Sharma Versus Union of
India and others.

6. I have considered the submissions
of both the parties and perused the record.
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Deo Raj V. State of U.P. and others
197

7. The impugned order has been
passed by the State Government on a
revision filed by the respondent no. 4
under Rule 78 of 1963 Rules. In the
impugned order it has been observed by
the revisional authority that the revision
has been filed with some delay and
looking to the facts of the case it is in the
interest of justice that the delay in filing
the revision be condoned. It has also been
observed in the impugned order that the
State Government has also jurisdiction to
examine
the
order
of
the
District
Magistrate
suo
moto.

The
State
Government further observed that the
revision filed by the respondent no. 4 is
maintainable and directed for hearing of
the revision on merits.

8. The first question which has
arisen for determination is as to whether
the revisional authority while hearing the
revision filed under Rule 78 of 1963
Rules has jurisdiction to condone the
delay in filing the revision. The counsel
for the petitioner has submitted that there
is no power under rule 78 to condone the
delay in filing the revision since the
provisions of Section 5 of the Limitation
Act, 1963 are not applicable while
hearing the revision under rule 78. Before
proceeding
further
to
examine
the
contention it is relevant to consider the
provisions of the Limitation Act and the
provisions of the U.P. Minor Minerals
(Concession) Rules, 1963.

9. Section 3 of the Limitation Act
provides
that
subject
to
provisions
contained in Section 4 to 24 (inclusive),
every suit instituted, appeal preferred, and
application made after the prescribed
period
shall
be
dismissed
although
limitgation has not been set up as a
defence. Section 4 provides that where
the prescribed period of any suit, appeal
or application expires on a day when the
court is closed, the suit, appeal or
application may be instituted, preferred or
made on the day when the court reopens.
Section 5 of the Limitation Act which is
relevant in the present case is extracted
below :-

"5. Extension of prescribed period
in certain cases,______ Any appeal or
any application, other than an application
under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908,
may be admitted after the prescribed
period if the appellant or the applicant
satisfies the court that he had sufficient
cause for not preferring the appeal or
making the application within such
period.

Explanation,_____ The fact that the
appellant or the applicant was misled by
any order, practice or judgment of the
High Court in ascertaining or computing
the prescribed period may be sufficient
cause within the meaning of this section.?

10. From the perusal of Section 5 of
the Limitation Act it is clear that any
appeal or any application, may be
admitted after the prescribed period if the
appellant or the applicant satisfies the
court that he had sufficient cause for not
preferring the appeal. The provisions of
the Limitation Act, 1963 prescribed
period of limitation for institution of suit,
appeal or application in a court. Section 5
of the Limitation Act as noted above
clearly indicate that the extension of
period shall be allowed when the
applicant satisfies the court that he had
sufficient cause.
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11. The provisions of the limitation
Act can also be made applicable in any
other
proceedings
by
specifically
providing under the statute about the
application of limitation Act. Even where
the limitation Act is not strictly applied
the
principle
contained
under
the
Limitation Act are adopted by various
statutes.

12. The question arose as to whether
the provisions of the Limitation, 1963 are
applicable for filing a revision under
Section 10 (3) (b) of the U.P. Sales Tax
Act, 1947. In (1975) 4 Supreme Court
Cases 22 The Commissioner of Sales
Tax U.P. Lucknow Versus M/s Parson
Tools and Plants, Kanpur the appeal
was filed before the apex Court against
the Full Bench judgment of this Court.
The majority view of this Court was that
time spent in prosecuting the application
for setting aside the order of dismissal of
appeal in default, can be excluded for
filing the revision by application of
principle underlying Section 14 (2) of the
Limitation Act. Minority view of this
Court was that the Judge Revision Sales
Tax while hearing the revision under
Section 10 of the U.P. Sales Tax Act does
not act as a court but only as a revisional
Tribunal hence the provisions of the
Indian Limitation Act may not apply to
proceedings before him. The apex Court
held that the appellate authority and Judge
Revision Sales Tax are not courts hence
Section 14 of the Limitation Act does not
apply. Following was held in paragraphs
8 and 9:-

"8. Mr. Karkhanis is right that this
matter is no longer res integra. In
Shrimati Ujjam Bai v. State of U.P.
(A.I.R. 1962 S.C. 1621) Hidayatullah, J.
(as he then was) speaking for the Court,
observed:

The
taxing
authorities
are
instrumentalities of the State. They are
not a part of the Legislature, nor are they
a part of the Judiciary. Their functions
are the assessment and collection of taxes
and in the process of assessing taxes, they
follow a pattern of action which is
considered judicial. They are not thereby
converted into courts of civil judicature.
They still remain the instrumentalities of
the State and are within the definition of
"State" in Article 12.

9. The above observations were quoted
with approval by this Court in Jagannath
Prasad's case (supra), and it was held that
a Sales Tax Officer under U.P. Sales Tax
Act, 1948 was not a Court within the
meaning of Section 195 of the Code of
Criminal
Procedure
although
he
is
required to perform certain quasi-judicial
functions. The decision in Jagannath
Prasad's case, it seems, was not brought to
the notice of the High Court. In view of
these pronouncements of this Court, there
is no room for argument that the appellate
authority and the Judge (Revisions) Sales
Tax exercising jurisdiction under the
Sales Tax Act, are "courts". They are
merely administrative tribunals and "not
courts". Section 14, Limitation Act,
therefore, does not, in terms apply to
proceedings before such tribunals?

13.

The
apex
Court
while
considering the provisions of the Land
Acquisition Act, 1894 again took the view
that
the
Collector/Land
Acquisition
Officer has no power to condone the
delay in making application for reference
since they act as statutory authority and
not as a court for the purposes of Section
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Deo Raj V. State of U.P. and others
199
5 of the Limitation Act. Following was
held in Paragraph 19:-

"19. The case in point is Purshottam
Das Hussaram V. Impex (India ) Ltd.
(supra). In this Bombay case, the
question was, whether the suit was barred
by limitation. It was not disputed that
Article 115 of the Limitation Act
governed the limitation and if no other
factor was to be taken into consideration,
the suit was filed beyond time. But what
was relied upon by the plaintiff for the
purpose of saving limitation was the fact
that
there
was
certain
infructuous
arbitration proceedings and if the time
taken in prosecuting those proceedings
was excluded under Section 14, the
should would be within limitation. It was
held that if Section 14 were to be
construed strictly, the plaintiff would not
be entitled to exclude the period in
question."

14. The recent judgment of the apex
Court in (2004) 4 Supreme Court Cases
252 Gopal Sardar Versus Karuna
Sardar had considered the provisions of
West Bengal Land Reforms Act, 1955. It
was held by the apex Court that in an
application under Section 8 of the Act the
provisions of Section 5 of the Limitation
Act is not applicable. The apex Court also
held that the Act is a self contained Code
and in various provisions of the Act
specially the provisions for appeal Section
5 Limitation Act was made applicable.
The non mention of applicability of
Section 5 in an application under Section
8 claiming right of pre emption indicate
that Section 5 is not applicable in Section
8 proceedings. Following was laid down
in paragraph 7:-

"7. ................. Even otherwise, in
our view, the position as regards the
applicability of Section 5 of the Limitation
Act to an application under Section 8 of
the Act does not get altered. As already
stated above, the Act is a self-contained
code inasmuch as the Act provides to
enforce the rights of pre-emption, forum
is provided, procedure is prescribed,
remedies including the appeals and
revisions are provided, penalties are
indicated for non-compliance with the
orders
and
powers
are
given
for
restoration of land. Further period of
limitation is also specifically prescribed
to make an application under Section 8 of
the Act and for preferring appeals or
revisions under the provisions of the Act.
All these and a few other provisions are
clear enough to indicate that the Act is a
complete code in itself dealing with the
rights of pre-emption. The second
proviso to Section 14-H specifically
provides for the application of Section 5
of the Limitation Act in the matter of
preferring an appeal or revision. Section
14-O
(1)
specifically
enables
the
Appellate Authority to allow to prefer an
appeal even after the expiry of the period
of limitation prescribed on showing
sufficient cause. Similarly , the second
proviso to Section 19(2) of the Act
expressly provides for application of
Section 5 of the Limitation Act to an
appeal to be preferred under the said
section. Section 51-A of the Act deals
with preparation and revision of record of
rights. Rule 26 of the Rules framed under
the Act provides that every appeal under
Section 51-A of the Act is to be filed
within one month from the date of passing
of the order appealed against. The
proviso to the said Rule stastes that an
appeal may be admitted after the said
period if the appellant satisfies that he
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INDIAN LAW REPORTS ALLAHABAD SERIES
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had sufficient reasons for not preferring
the appeal within the said period. Thus
either Section 5 of the Limitation Act or
its principles have been expressly and
specifically incorporated in the various
sections aforementioned. In contrast,
although Section 8 of the Act prescribes
the period of limitation for applying to
enforce pre-emption rights, it does not
speak of application of Section 5 of the
Limitation Act or its principles. If in the
same Act, consciously and expressly, the
legislature
has
made
provision
for
application of Section 5 of the Limitation
Act or its principles expressly and
specifically to other proceedings such as
appeal or revision etc. and such a
provision is not made for limitation of the
proceedings under Section 8 of the Act, it
necessarily follows that the legislature did
not intend to give benefit of Section 5 of
the Limitation Act having regard to the
nature of right of pre-emption which is
considered a weak right."

15. Coming to the provisions of U.P.
Minor
Minerals
(Concession)
Rules,
1963, the provisions for filing an appeal is
provided under Rule 77 and for filing
revision is provided under Rule 78. Rule
78 of the Rules is quoted below:-

"78.
Revisions,__
The
State
Government may either suo moto at any
time or on an application made within
ninety
days
from
the
date
of
communication of the order, call for an
examination of the record relating to any
order passed proceeding taken by the
District Officer Committee, Director or
the Divisional Commissioner under these
rules and pass such orders as it may think
fit.?

16. At this juncture it is also relevant
to note rule 6-A which provides for
making an application for renewal of
mining lease:-

"6-A. Application fee etc. for
renewal of mining lease,_______ (1) An
application for renewal of mining lease
may be made atleast six months before
the date of expiry of the mining lease
along with four copies of the map of lease
hold area showing clearly the area
applied for renewal and the provisions of
clause (a) and (d) of sub-rule (1) of Rule
6 shall mutatis mutantis apply.

(2) The State Government may condone
the
delay
caused
in
making
the
application for renewal of mining lease
after the period specified in sub-rule (1)."

17. The U.P. Minor Minerals
(Concession) Rules, 1963 has been
framed in exercise of power under Section
15 of the Mines and Minerals (Regulation
and Development) Act. 1957. From the
U.P. Minor Minerals (Concession) Rules,
1963 there is no indication that the State
Government while hearing revision acts
as a court. The State Government while
hearing revision under Rule 78 is an
statutory authority to hear the revision and
does not act as court.

18. At this stage it is also necessary
to consider the judgment of the apex
Court in P. Sarthy Versus State Babnk
of India (supra) as relied by the counsel
for the respondents. In P. Sarthy Versus
State Babnk of India (supra) the apex
Court held that any authority or tribunal
having the trappings of the court would be
a court within the meaning of Section 14
of the Act. Paragraph 12 of the judgment
is quoted below :-
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"12. It will be noticed that Section 14
of the Limitation Act does not speak of a
"civil court" but speaks only of a "court".
It is not necessary that the court spoken of
in Section 14 should be a "civil court".
Any authority or tribunal having the
trappings of a court would be a "court"
within the meaning of this section."

The apex Court in the said judgment
had considered Tamil Nadu Shops and
Establishments Rules, 1948 framed under
the Tamil Nadu Shops and Establishments
Act, 1947. After considering the
provisions of the said Rules the apex
Court held that any authority or Tribunal
having the trappings of the court would be
a court. In U.P. Minor Minerals
(Concession) Rules, 1963 there is no
indication that the State Government
while hearing the revision acts as an
authority or tribunal which have trappings
of the court.

19. The State Government while
hearing a revision under rule 78 cannot be
held a court nor it can be said that it has
trappings of the court while deciding a
revision. In this view of the matter
Section 5 of the Limitation Act was not
applicable ipso facto unless the Limitation
Act or any provisions of the Limitation
Act is specifically applied. To the
contrary under the rules there are
provisions in which power to condone the
delay in making an application has been
specifically provided. As noted above,
rule 6-A (2) specifically empowers the
State Government to condone the delay in
making application for renewal of the
mining lease after the period specified
under sub rule (1). No such provisions
have been made under rule 78 on which it
can be safely inferred that the State
Legislature intend applicability of Section
5 of the Limitation Act under rule 78 of
the Rules.

20. It is further relevant to note that
under rule 78 the State Government has
suo moto power to call for and examine
the record relating to any order passed,
proceedings taken by the district Officer.
In appropriate case the State Government
can
initiate
suo
moto
proceedings.
Although in the order impugned in this
writ petition it has been observed by the
State
Government
that
the
State
Government has also suo moto power to
examine
the
order
of
the
District
Magistrate but from the order it does not
appear that the State Government has
actually decided to exercise its suo moto
power. It is open to the State Government
to initiate suo moto proceedings in the
event it so decides. It has also been
contended
by
the
counsel for the
respondents that in fact there is no delay
in the revision. The respondent no. 4 had
applied for copy of the order which was
not made available. It has been stated that
the respondent no. 4 having not received
copy of the order applied for copy of
registered lease which was given on
11.5.2004. On the above submission it
cannot
be
held
that
the
revision
application filed by the petitioner was
within the period of limitation as
prescribed under rule 78. It is not the case
of the petitioner that the order passed by
the
District
Magistrate
was
ever
communicated to the petitioner.

21. From the above discussion it is
found that there is no power of
condonation of delay under rule 78 hence
the order passed by the State Government
condoning the delay in filing the revision
by the respondent no. 4 cannot be
sustained. In view of this it is not
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INDIAN LAW REPORTS ALLAHABAD SERIES
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necessary to consider other submissions
raised by the counsel for the petitioner.
As observed above, it is open to the State
Government to exercise its suo moto
power. In the result the order of the State
Government passed in the revision dated
15.12.2004 condoning the delay in filing
the revision and entertaining the revision,
is set aside. The writ petition is allowed to
the extent indicated above. Parties shall
bear their own costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 42901 of 2004

Ravindra Pratap

...Petitioner
Versus
Institute of Engineering & Rural Technology,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri Kshitij Shailendra

Counsel for the Respondents:
Sri Rahul Sripat
S.C.

Multi Point Entry & Credit System
Examination
Rules-15-B-
Diploma
Electronic Engineering 3 years course-
Back paper must be cleared within
maximum duration as per rule 15-B it
can not be extended beyond that.

Held: Para 7

In the opinion of the Court the language
of Rule 15-B is clear and specific. It
leaves no room for doubt. In no case a
candidate can be permitted to continue
beyond the maximum duration provided
for
under
Rule
15-B.

In
such
circumstances it is not necessary to refer
to any other provision including Rule 16
or the purpose for which the Multi Point
Entry and Credit System has been
introduced inasmuch as any opportunity
to a candidate to appear in a back paper
must be completed within the maximum
duration provided under Rule 15-B. Rule
16 or the purpose for which the Multi
Point Entry and Credit System has been
introduced cannot in any way extend the
maximum duration provided under Rule
15-B.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri Kshitij Shailendra
Advocate on behalf of the petitioner, Sri
Rahul Sripat Advocate on behalf of
respondents 1 and 2, and the Standing
Counsel on behalf of respondent no. 3State.

2. The petitioner, Ravindra Pratap
was admitted to 3 years Degree Course of
Diploma in Electronic Engineering under
Multi Point Entry and Credit System
(hereinafter referred to as MPECS) in the
Institute
of
Engineering
and
Rural
Technology,
Allahabad
(hereinafter
referred to as the IERT) for the academic
session 1998-99. The petitioner failed to
clear examination of the subject of
Analog in Electronics 3rd semester and
has also failed in two papers in 4th
semester examination. The petitioner is
aggrieved by the order passed by the
Director of the IERT dated 10.08.2004
whereby the Director with reference to
Rule 15-B of the Multi Point Entry and
Credit
System
Examination
Rules
(hereinafter referred to as the Rules)
adopted by the IERT since 1993, provided
that no further chance/attempt can be
given to the petitioner for clearing the
back paper of 3rd semester. This order is