Shreya Singh (Minor) And Another vs Union Of India And 4 Others
2023 Latest Caselaw 17844 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:141937
 
Court No. - 10
 

 
Case :- WRIT - C No. - 21674 of 2023
 

 
Petitioner :- Shreya Singh (Minor) And Another
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Ram Vishal Mishra,Sachin Mishra
 
Counsel for Respondent :- A.S.G.I.,Rajesh Tripathi
 
With
 
Case :- WRIT - C No. - 21692 of 2023
 

 
Petitioner :- Sudhanshu Rajput
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Kapil Dev Dubey,Pratikdhar Dwivedi,Rahul Kumar
 
Counsel for Respondent :- A.S.G.I.,Bal Mukund,Pratikdhar Dwivedi,Rajesh Tripathi
 

 

 
Hon'ble Kshitij Shailendra,J.

1. Heard learned counsel for the petitioners, Shri Rohan Gupta for the respondent-IIT and its Officials, Shri H.N. Pandey, learned counsel for newly impleaded respondent no.6-CBSE, Shri Rajesh Tripathi for respondent nos.1 and 4 and perused the record.

2. After hearing the parties at some length, this Court passed following order on 13.07.2023:-

"1. Heard learned counsel for the petitioner, Sri Rajesh Tripathi, learned counsel for the respondents no.1 and 4, Sri Rohan Gupta, learned counsel for the respondents no.2, 3 and 5 and perused the record.

2. The grievance of the petitioner is that though she appeared in Class XII examination but in one of the subjects she failed and, as per the procedure of the Central Board of Secondary Education, she has been permitted to appear in the compartment examination scheduled to be held on 17.07.2023.

3. The writ petition has been filed with a prayer that the Indian Institute of Technology may be directed to provisionally permit the petitioner to participate in the counselling process.

4. It is not in dispute that the petitioner has qualified JEE (Advance) and initial seat allotment intimation slip has also been issued to the petitioner which has been annexed as Annexure No.S.A.-1 to the supplementary affidavit which shows that the seat has been allotted to the petitioner. The petitioner's counsel submits that requisite fees has also been deposited by the petitioner.

5. Sri Rohan Gupta, learned counsel for the respondents no.2, 3 and 5 has placed before this Court Business Rules for Joint Seat Allocation for the Academic Programs offered and has pressed following clause of the said Rules:-

"The seat allocation process follows a strict timeline. The entire process is on-line and computer operated. No exceptions are possible and therefore, candidates are strongly advised to thoroughly acquaint themselves with these Business Rules, be vigilant, keep their documents handy and make arrangements for making the requisite payments and completing the requisite formalities, well in advance. It will not be possible to entertain requests for extension of time for completing any activity."

6. In so far as other clause is concerned, both the learned counsel have referred to Clause 72 (B) of the Rules, which reads as follows:-

"(B) Due to revision of passing status, if a candidate satisfies the "Performance in Class XII (or equivalent) examination" requirement [Annexure 2(a) for IITs and Annexure 2(b) for NITs/IIEST/Triple-I-Ts/Other-GFTIs] and becomes eligible for admission, then such a candidate has to approach the organizing institute (IIT Guwahati) with the revised passing certificate. The candidate will be considered for seat allocation only in subsequent rounds (if any). The allocated seat (if any) shall be the same as what the candidate would have got on the basis of revised passing status to begin with. To ensure this, a supernumerary seat will be created, if needed."

7. It is therefore contended by Sri Rohan Gupta that as soon as the candidate passes the compartment examination and produces before I.I.T. a revised passing certificate, his candidature for allotment of seat shall be considered and since the petitioner has not yet passed compartment examination which is yet to be held, the petitioner has no case as on today. He, however, fairly states that as soon as the revised passing certificate is produced, the candidature of the petitioner shall be considered in counselling and there is also a provision for creation of supernumerary seat, if needed. However, he submits that under no circumstance the counselling process shall be deferred beyond the time schedule already fixed.

8. According to the learned counsel for the petitioner, counselling process shall end on 26.07.2023.

9. In view of the above facts and circumstances of the case and very strict time schedule, while there is no dispute that the petitioner has already been allowed to appear in the compartment examination to be held on 17.07.2023, let Central Board of Secondary Education be arrayed as respondent in the present petition and copy of this petition be served upon the learned counsel representing the said Board.

10. Necessary impleadment shall be made during the course of day.

11. Learned counsel for the Board shall inform the Court on the next date as to whether the result of the petitioner pertaining to compartment examination can be declared before 23.07.2023 and only for this purpose impleadment of Board has been ordered as this Court is of the opinion that in case the petitioner qualifies the compartment examination before the end of counselling process, i.e. the last date fixed for the said purpose (26.07.2023), she would be allowed to participate in the counselling.

12. Put up this case as fresh on 18.07.2023 at the top of list of fresh cases.

13. Learned counsel for the petitioner is directed to serve two sets of this petition upon the learned counsel representing the Board within two days for obtaining and furnishing instructions as directed herein above. "

3. It is contended at the Bar that the petitioners have appeared in the Compartment Examination yesterday i.e. 17.07.2023.

4. The grievance of the writ petitioners is to the effect that though Clause 72 of the Business Rules (referred to hereinabove) permits consideration of the claim of candidates who passed supplementary examination if they approach IIT Guwahati with the revised passing certificate, since the result of the petitioners concerning the supplementary/compartmental examination is yet to be declared by the Board, in case, it is declared after all the rounds of counselling is completed by the IIT, the case of the petitioners would go beyond the zone of consideration. Under these circumstances, prayer has been made to direct the respondents to permit them to appear in the process of counselling.

5. Shri Rohan Gupta appearing for IIT and its Officials has by referring to Clause 72 (B) of the aforesaid Rules again vehemently argued that consideration of candidates like the petitioners is possible only when any round of counselling is left and before that the candidates produce revised passing certificate satisfying the Authorities that they fulfill the requisite percentile/marks criteria. He submits that under no circumstances, either the timeline fixed under the Rules or Circulars or any criteria can be relaxed depending upon whims and fancies of the candidates concerned.

6. Shri Gupta has placed reliance upon judgement of the Supreme Court in the case of Indian Institute of Technology, Kharagpur & Ors. v. Soutrik Sarangi & Ors. reported in 2021 (4) ESC 867 (SC) with special reference to paragraph nos.15 and 21 whereof which reads as follows:-

"15. IITs are constituted under the Institutes of Technology Act, 1961 (hereafter "the Act") and are declared to be technical institutions of education, declared by Parliament, to be of national importance (under Entry 64) of the Union List (List I) of the Seventh Schedule to the Constitution of India, set-up to foster excellence in education. The appellant contends that IITs have created a world class academic platform dynamically sustained through quality teaching and internationally acclaimed research with excellent infrastructure and the best minds available. Admission to the IITs is governed by the JEE (Advanced) Information Brochure which sets out the detailed rules of eligibility. That an examination is conducted exclusively by the IITs and the National Testing Agency (NTA) has no role in this. The NTA's role is confined only to the JEE (Mains). The top 2.5 lakh successful candidates in the JEE (Mains) examination category wise ? are allowed to appear in the JEE (Advanced) examination provided they fulfill other eligibility criteria. The admissions standards for the IITs are prescribed by virtue of exercise of power under Section 33(2)(b) of the Act. The planning of the JEE (Advanced) and the admissions process to various IITs is conceived and supervised by the Joint Administrative Board consisting of Directors of IITs, Members of the Joint Implementation Committee, representatives of the Union Government, CBSE etc. The IIT has in its appeal referred to the Joint Seat Allocation Authority Business Rules. These rules, - applicable for the year 2020-21 to the extent they are relevant are extracted below:-

"XXVII ELIGIBILITY TO APPEAR IN JEE (ADVANCED) IN SUBSEQUENT YEARS

69. Candidates who reject their seat during the first five (5) rounds or withdraw from allocated seat, by completing all formalities specified herein, can appear for JEE (Advanced) 2021 provided they meet all other eligibility requirements.

70. Candidates who accept the allocated seat in any IIT by reporting online but later do not withdraw seat or accept the allocated seat by reporting at the admitting institute (in case seat is allocated in the last round), irrespective of whether they attend classes or not, become ineligible for JEE (Advanced) in subsequent years."

21. This court is of opinion that the impugned judgement is in error in holding that the exclusion of a candidate who secures admission but does not opt out of it and virtually abandons it as in the case of Soutrik from participating in the subsequent JEE (Advanced) examination is arbitrary. As recounted earlier, criteria, including Criteria no.5 were devised after extensive consultations between all the IITs and other officials of the Union Government as well as the CBSE. The High Court proceeded to facially compare IITs and non-IIT institutions and hold that candidates who are admitted to non-IIT institutions and who do not proceed in the institution and who are allowed to participate in the subsequent JEE (Advanced) amounts to hostile discrimination and those who secure admission but do not proceed with the course in any given year."

7. The Supreme Court in the aforesaid judgment has clearly laid down that the admission standards are prescribed by virtue of exercise of power under Section 33(2)(b) of the Institutes of Technology Act, 1961 and with respect to any procedure adopted by the IIT, if some contrary interpretation is made by the Court that would be a hostile discrimination and would not be permissible.

8. Shri Gupta has placed further reliance upon another judgment of Supreme Court in case of Shikhar & others v. National Board of Examination & other reported in 2022 (3) ESC 585 (SC) with special reference to para 9 which is quoted hereinbelow:-

"9. While we understand that the present cut-off date for the completion of the internship would put certain students at a disadvantage, we are conscious that it is the domain of the executive and regulatory authorities to formulate appropriate eligibility standards for admission. In Indian Institute of Technology Kharagpur & others v. Soutrik Sarangi, 2021 SCC OnLine SC 826, a three-judge Bench of this Court held that courts should be circumspect in exercising their powers of judicial review in matters concerning academic policies, including admission criteria. In that case, this Court refused to interfere with the eligibility criteria for appearing in JEE (Advanced) 2021 which prevented a candidate who had secured a seat in one of the IITs from competing in a subsequent examination. This Court relied on All India Council for Technical Education v. Surinder Kumar Dhawan, (2009) 11 SCC 726, where it was observed that judicial interference motivated by concerns of mitigating the hardship faced by students may result in unintended consequences adversely affecting the education system. This Court held thus:

"19. The reasoning of the High Court of Criterion 5 not permitting IIT students to participate in IIT (Advanced) for the second time being arbitrary, in the opinion of this Court is not supportable. This Court has repeatedly emphasized that in matters such as devising admissions criteria or other issues engaging academic institutions, the courts' scrutiny in judicial review has to be careful and circumspect. Unless shown to be plainly arbitrary or discriminatory, the court would defer to the wisdom of administrators in academic institutions who might devise policies in regard to curricular admission process, career progression of their employees, matters of discipline or other general administrative issues concerning the institution or university. It was held by this court in All India Council for Technical Education v. Surinder Kumar Dhawan

16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.

20. Given this general reluctance of courts to substitute the views of academic and expert bodies, the approach of the High Court in proceeding straightaway to characterize the rationale given by the IIT in fashioning the Criteria No. 5 cannot be supported."

9. The Apex Court in the Judgement of Shikhar & Ors. (supra) has considered that though the cut-off controversy would put certain students at disadvantage, the Supreme Court was conscious that it is in the domain of the executive or regulatory authorities to formulate appropriate eligibility criteria/standards for admission and the Court would be circumspect in exercise of power of judicial review in matters concerning academic policies including admission criteria.

10. Shri H.N. Pandey for the Board has on the basis of instructions, argued that even the IIT had made a request to the Board for early declaration of result of the students appearing in the Supplementary Examination-2023 and the Board by its letter dated 10.07.2023 has already informed the Adjunct Professor of IIT Bombay that supplementary examination would start from 17.07.2023 and would be over by 22.07.2023 and in Class XII, 1,92,062 students have been registered and that it would take about 25-30 days to complete the process of declaration of result. It was also informed that the result would be declared approximately by 10.08.2023.

11. Learned counsel for the petitioners have tried to interpret different Clauses of the aforesaid Business Rules and have argued that since there is a provision for creation of supernumerary seat, the respondents may be directed to wait for the result of the petitioners and also reserve their seat or atleast permit them to provisionally participate in the ongoing counselling. This Court is not inclined to accept this submission as any Rule or Sub-rule does not provide so after reading the same entirely and once the Apex Court has already held that the standards fixed by the Academic Bodies should not be judicially reviewed in the manner which may suit the candidate concerned, this Court is of the opinion that in the event, the case of the petitioners falls within Clause 72(B) of the Business Rules, the Organizing Institute (IIT Guwahati) would be under obligation to consider the request of the petitioners.

12. This Court has not expressed any opinion with regard to the entitlement of the petitioners to participate in the counselling as the words used in Clause 72(B) are "The candidate will be considered for seat allocation only in subsequent rounds (if any)". Therefore, it is within the exclusive domain of IIT Guwahati to consider the request of the petitioner on the basis of revised result, if any.

13. Though IIT Guwahati is beyond territorial limits of jurisdiction of this Court, considering the provisions of Article 226(2) of the Constitution of India, this Court can issue directions in the facts and circumstances of the case where part of cause of action has arisen within territorial limits of jurisdiction of this Court, irrespective of the fact that the seat of IIT Guwahati is beyond the territories of U.P.

14. Accordingly, this writ petition is being disposed off in the following terms:-

(a). The petitioners are at liberty to produce their revised result on the basis of supplementary /compartment examination held yesterday as soon as it becomes available to them before the Organizing Institute i.e. IIT Guwahati.

(b). IIT Guwahati would consider the case of the petitioners in terms of Rule 72(B) of the aforesaid Rules or any other Rule applicable.

(c). While considering the claim, IIT Guwahati would be guided by their Rule and wisdom as this Court has not expressed any opinion regarding merits of the claim of the petitioners nor this Court has interpreted any Rules in either way.

(d). It is expected that respondent-Board shall not cause unreasonable delay in declaring the result of compartment/supplementary examination.

(e). Insofar as petitioner in the Writ C No.21692 of 2023 (Sudhanshu Rajput v. Union Of India & 4 Others) is concerned, the grievance appears to be with respect to Physically Handicapped Category and the marks criteria assigned for them and obtained by the petitioner. It is open for the petitioner of this writ petition also to approach IIT Guwahati. All other directions as aforesaid shall remain same for the petitioner of this writ petition also.

Order Date :- 18.7.2023

Jyotsana