* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd December, 2014.
+ LPA No.768/2014
AGASTYA SHELAT ..... Appellant
Through: Mr. Sunil Fernandes, Ms. Mithu Jain,
Mr. Deepak Pathak and Ms. Astha
Sharma, Advs.
Versus
UNIVERSITY OF DELHI & ANR ..... Respondents
Through: Mr. Mohinder J.S. Rupal with Ms.
Yamni Phazang, Advs. for R-1/DU.
AND
+ W.P.(C) No.8216/2014
AGASTYA SHELAT ..... Petitioner
Through: Mr. Sunil Fernandes, Ms. Mithu Jain,
Mr. Deepak Pathak and Ms. Astha
Sharma, Advs.
Versus
UNIVERSITY OF DELHI & ANR ..... Respondents
Through: Mr. Mohinder J.S. Rupal with Ms.
Yamni Phazang, Advs. for R-1/DU.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The intra court appeal, being LPA No.768/2014 was preferred impugning the order dated 25th November, 2014 of the learned Single Judge of this Court in W.P.(C) No.8216/2014 filed by the appellant, issuing the LPA No.768/2014 & W.P.(C) No.8216/2014 Page 1 of 12 notice thereof to the respondents University of Delhi and Sri Venkateswara College for 19th February, 2015. It was the contention of the appellant / writ petitioner that considering the nature of the relief claimed in the writ petition, the same would become infructuous on 15th December, 2014 and the learned Single Judge, without considering the said aspect on 25th November, 2014, gave long date of 19th February, 2015.
2. W.P.(C) No.8216/2014 (supra) was filed on 22nd / 23rd November, 2014, averring:
(i) that the appellant / writ petitioner had taken admission in the year 2011, in the three years B.A. Political Science (Hons.) Programme of the respondent No.2 Sri Venkateswara College, affiliated to the respondent No.1 University of Delhi;
(ii) that though the respondent No.1 University, in the year 2011 required a student to secure 40% aggregate marks in internal and external assessments to pass a subject and also permitted re-evaluation of the answer sheets to a question paper in an examination but vide Notification dated 18th October, 2013, did away with the re-evaluation facility and also changed the rule regarding pass marks thereby LPA No.768/2014 & W.P.(C) No.8216/2014 Page 2 of 12 requiring a student to secure 40% each in internal and external assessments;
(iii) that the appellant / writ petitioner took his final Sixth Semester examination in May, 2014 and in anticipation of completing the said programme and so becoming a graduate, also took Law School Admission Test (LSAT) for admission to the three years LL.B. programme and to which, he was entitled to only upon completing his graduation;
(iv) that though the appellant / writ petitioner cleared the LSAT and got provisional admission to O.P. Jindal Global University in the three years LL.B. programme, subject to completing his graduation but in the result declared by the respondent No.1 University of the final semester of B.A. Political Science (Hons.) Examination, had failed in the subject of Indian Political Thought-II, having secured 28 out of 75 marks in external assessment and 12 out of 25 marks in internal assessment; though the appellant / writ petitioner had an aggregate (28+12) of 40 marks but since he had 28 instead of 30 marks (to make 40%) in external assessment, he was declared, „failed‟ entitled to Essential Repeat (ER), in the said subject;
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(v) that the appellant / writ petitioner applied for the facility of "recheck", still available, but which is mere re-totalling of the marks and in which no error was found;
(vi) that owing to the respondent No.1 University having done away with the facility of re-evaluation, the appellant / writ petitioner could not have applied therefor; similarly, though as per the rules in force at the time of admission of the appellant / writ petitioner to the B.A. Political Science (Hons.) course, the appellant / writ petitioner having secured aggregate of 40% in the said subject would have passed the said subject but owing to the changed rule requiring 40% marks in internal as well as external assessments, was declared „fail‟ in the said subject;
(vii) that the respondent No.1 University however vide Notification dated 20th October, 2014 inter alia re-introduced the facility earlier in vogue of re-evaluation;
(viii) that since the time for the appellant / writ petitioner to convert his provisional admission to regular in O.P. Jindal Global University is till 15th December, 2014, the appellant / writ petitioner filed the writ LPA No.768/2014 & W.P.(C) No.8216/2014 Page 4 of 12 petition,
(a) impugning the Notification dated 18th October, 2013 vide which the re-evaluation facility was scrapped;
(b) seeking a direction to the respondents to re-evaluate the answer sheet of the appellant / writ petitioner of the subject in which the appellant / writ petitioner had failed;
(c) seeking a direction to the respondent No.1 University to hold a supplementary examination for the subject in which the appellant / writ petitioner had failed;
(d) seeking a direction to the respondents to award two grace marks to the appellant / writ petitioner in the subject in which he had failed; and,
(e) seeking a direction to the respondents to award the graduation degree to the appellant / writ petitioner, since he had already secured aggregate of 40% marks in the internal and external assessment in the said subject.
3. The writ petition was not accompanied with any application for LPA No.768/2014 & W.P.(C) No.8216/2014 Page 5 of 12 interim relief as indeed it could not have been. As aforesaid, the writ petition came up before the learned Single Judge first only on 25 th November, 2014 and the grievance of the appellant / writ petitioner in the appeal was / is that the learned Single Judge ought to have allowed the writ petition immediately, instead of giving an opportunity to the respondents to file a counter affidavit and posting the petition to 19th February, 2015 for hearing.
4. The appeal came up before us first yesterday i.e. on 2nd December, 2014. The main argument of the counsel for the appellant / writ petitioner was, of the respondent No.1 University being not entitled to change the rules applicable on the date when the appellant / writ petitioner had taken admission.
5. However, we drew the attention of the counsel for the appellant / writ petitioner to the judgment of the Supreme Court in State of H.P. Vs. Himanchal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh (2011) 6 SCC 597 laying down that there is no embargo on the University changing the academic / examination / re-evaluation rules mid-term. The counsel for the respondent No.1 University appearing on advance notice also drew attention to our recent judgment dated 27 th November, 2014 in LPA LPA No.768/2014 & W.P.(C) No.8216/2014 Page 6 of 12 No.956/2013 titled Amit Kumar Vs. Delhi University and other connected petitions, where the same view has been followed.
6. Faced therewith, the counsel for the appellant / writ petitioner contended that there was no reason to deprive the appellant / writ petitioner from the facility of re-evaluation, since the respondent No.1 University itself had re-introduced the same. It was contended that only those who had taken the examination between 18th October, 2013 and 20th October, 2014 were being deprived of the said facility.
7. The counsel for the respondent No.1 University however drew our attention to the Notification dated 20th October, 2014 vide which the said facility of re-evaluation was re-introduced, taking cognizance of a large number of representations received from the students as well as the Delhi University Students‟ Union (DUSU) and the relevant para whereof is as under:
"2. The revaluation of answer sheets, which had become infructuous because of introduction of checking of answer sheets by multiple examiners, will also be reverted back and the answer sheets will be examined by single examiner. The procedure and guidelines of revaluation will be laid down by the University".
LPA No.768/2014 & W.P.(C) No.8216/2014 Page 7 of 12
and contended that it is not as if, the facility of re-evaluation was taken away and was reintroduced as per the whim and fancy of the University. It is informed that the facility of re-evaluation was done away vide Notification dated 18th October, 2013, on introduction of the system of checking of answer sheets by multiple examiners. It is informed that prior to 18th October, 2013, the answer sheets used to be examined / checked by a single examiner and in which situation a need for having the facility of re- evaluation, to avoid human error, was felt necessary; however, in the year 2013, the University introduced the practice of examination / checking of answer sheets by multiple examiners and in the face whereof, the facility of re-evaluation was found to have become infructuous and was thus done away with; however, upon the Four Years Undergraduate Programme (FYUP) being scrapped in June / July, 2014, the practice earlier introduced of checking of answer sheets by multiple examiners, was reverted and the answer sheets, in future, ordered to be examined by single examiner only and in which situation, again need for the facility of re-evaluation was felt and hence the said facility was reintroduced.
8. It thus appeared yesterday that, if the answer sheet of the appellant / writ petitioner of the examination in the subject in which he had failed had LPA No.768/2014 & W.P.(C) No.8216/2014 Page 8 of 12 been checked by multiple examiners, the appellant / writ petitioner did not have a case for being still entitled to re-evaluation.
9. The counsel for the appellant / writ petitioner however yesterday controverted that the said answer sheet was examined / evaluated / checked by multiple examiners.
10. We thus enquired from the counsel for the respondent No.1 University, whether the subject answer sheet was checked by multiple examiners.
11. The counsel for the respondent No.1 University though stated that as per the prevalent rules it should have been but he did not have instructions particularly with respect to the subject answer sheet.
12. We accordingly adjourned the matter to today and for the sake of expeditious disposal of the writ petition itself, with consent, also directed the writ petition to be listed before this Court today along with the appeal. By way of abundant caution, the counsel for the respondent No.1 University was also directed to obtain instructions, whether the subject answer sheet was available or had been destroyed.
13. The counsel for the respondent No.1 University today, on instructions, LPA No.768/2014 & W.P.(C) No.8216/2014 Page 9 of 12 states that the subject answer sheet was examined / checked / evaluated by a Board comprising of three examiners. He also informs that the subject answer sheet is still available.
14. The said answer sheet having been examined / checked by three examiners, we do not find any error in the Notification dated 18 th October, 2013, on introduction of the said system of checking, doing away with the facility of re-evaluation.
15. The counsel for the appellant / writ petitioner of course contends that it be further found out whether each member of the said Board of Examiners had examined answers to different questions or the three together had examined the answers to all the questions and in which case, he would be satisfied. It is also contended that we call for the answer sheet to satisfy ourselves, whether it has been correctly evaluated or not.
16. We are not impressed. Both the arguments are off the cuff, desperate and misconceived and without any basis or pleading and cannot be entertained.
17. The counsel for the appellant / writ petitioner however hands over a purported download of an article which had appeared on the e-newspaper LPA No.768/2014 & W.P.(C) No.8216/2014 Page 10 of 12 „Mail Today‟ on 26th November, 2012, reporting that it had been learnt that in some cases the Board of Examiners had divided the answers of different questions to be checked amongst themselves and thus answers to all the questions had not been examined by all the three examiners.
18. We cannot make the same as the basis of our order, without any plea ever in this regard, to commence a roving and fishing enquiry. The appellant / writ petitioner does not dispute that the rule required the Board of Examiners comprising of three teachers to examine the entire answer sheet. We have no reason to assume that the said rule was not followed. If the said rule was followed, the appellant / writ petitioner also agrees that there is no need for re-evaluation.
19. We therefore do not find any merit in the writ petition, which is dismissed; axiomatically the appeal is also dismissed.
20. The counsel for the appellant / writ petitioner at this stage states that the writ petition ought not to be disposed of, without a counter affidavit and on the oral statement of the counsel for the respondent No.1 University.
21. The appellant / writ petitioner / his counsel cannot be allowed to approbate and reprobate. The appellant / writ petitioner filed the appeal LPA No.768/2014 & W.P.(C) No.8216/2014 Page 11 of 12 stating that the writ petition, owing to the urgency, should have been decided immediately, without any counter affidavit. Now when we have done so, the appellant / writ petitioner cannot be allowed to say that counter affidavit should have been allowed to be filed.
22. The writ petition and the appeal are accordingly dismissed. The appellant / writ petitioner being a student, we refrain from imposing any costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE DECEMBER 03, 2014 bs..
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