Bombay High Court
Anubha Srivastava Sahai vs National Testing Agency And Anr on 3 May, 2023
Bench: Sandeep V. Marne
2023:BHC-AS:13424-DB
Kishor V. Kamble 1/14 WP58 of 23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.58 OF 2023
Anubha Srivastava Sahai )
Age : 44 years, Occu. : Lawer )
Indian Inhabitant, )
R/o. Arlington Roads Enclave, )
Hiranandani Estate )
Thane-400 607 )
Taluka : Panvel, District : Raigad. )... Petitioner
VERSUS
1. National Testing Agency )
Through Chairperson )
C-20 1A/8, Sector 62 )
IITK Outreach Center )
Noida-201309 )
2. Union of India )
Through The Ministery of Education )
Through its Secretary )
J688+644, C Wing, Shastri Bhawan )
Dr. Rajendra Prasad Rd, Rajpath Area, )
Central Secretariat, Delhi-110001 )
3. National Commission For Protection )
of Child Rights, 5th Floor, Chanderlok )
Building 36, Janpath Rd, )
New Delhi-110001 )... Respondents
Appearances
Mr. Joseph G. Thattil, i/b M/s. Thattil & Co. for Petitioner/ Intervener in IA
No.3656 of 2023.
Anubha Shrivastava Sahai, party in person.
Mr. Anilsing ASG, a/w. Rui Rodrics a/w. Aditya Thakur a/w. Smita Thakur a/w.
Jainendra Seth for Respondent.
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Kishor V. Kamble 2/14 WP58 of 23.doc
CORAM : S. V. Gangapurwala, ACJ &
Sandeep V. Marne, J.
Date : 3rd May 2023.
1. This PIL is filed by Petitioner, a child rights activist and a lawyer,
seeking twin reliefs of rescheduling JEE (Main)-2023 examination from
January 2023 to April 2023 and for relaxation of minimum eligibility
criteria fixed at 75% marks (65% for SC/ST) in XII Board Examination
for admissions to NITs, IIITs and CFITs.
2. So far as the first prayer for rescheduling of JEE main examination,
this court passed following order on 10th January 2023:
"1 In the present PIL the Petitioner prays for two reliefs, (i) to postpone
the JEE (Main) exam to be held in January 2023 and (ii) to relax the eligibility
criteria of obtaining 75% marks in the 12th standard examination.
2 As far as the challenge to the eligibility criteria of obtaining 75% marks
in the 12th standard examination is concerned, the learned Advocate of the
Petitioner submits that he has received the copy of Affidavit-in-Reply filed by
the Respondent just now and seeks time to file Rejoinder and argue the matter.
The eligibility criteria laid down viz. obtaining 75% marks in the 12 th standard
examination would be relevant at the time of seeking admission to the
professional course which would be after June 2023.
3 The present apprehension of the Petitioner is that for the examinations
as are scheduled to be held from 24 January 2023 to 31 January 2023, the
students will have very less time for preparation. The schedule was declared
only on 15 December 2022, hardly 40 days time was accorded to the students
to prepare for examination. The learned Advocate for the Petitioner submits
that though in April 2023 another opportunity is available to the students to
appear for JEE (Main), each and every attempt is counted. Moreover, as a less
time is provided for preparations, holding of examination in January 2023
Kishor V. Kamble 3/14 WP58 of 23.doc
would be detrimental to the interest of students. The learned Counsel submits
that the examinations of JEE (Main) to be held in January 2023 may be
postponed to April 2023 and the examinations to be held JEE (Main) in April
2023 may be postponed to May 2023.
4 The learned ASG submits that in the year 2019 and in the year 2020 JEE
(Main) exams were held in January and April. In the year 2021 because of
pandemic the examinations were held in four sessions i.e. February, March,
April and May.
5 The learned ASG further submits that the Petitioner does not have locus
standi to file the present PIL.
6 The JEE (Main) exams are held twice every year. Even if a student does
not fare well in January exam, he can appear in April for improvement and the
better marks obtained in either of the exams are taken into consideration.
7 Even if the student does not appear for JEE (Main) exam in January
2023, he can appear for JEE (Main) exam in April 2023.
8 It is not disputed that the schedule of the JEE (Main) examination of
January and April is applicable pan India. The Petitioner claims to be a social
activist and a child right activist. If any orders are passed today directing
postponement of JEE (Main) January 2023 examination, the same may have a
cascading effect on the future examination also. The next JEE (Main)
examination is held in April 2023, sufficient time would be available to the
students from January to April. In case, the student does not fare well in
January examination, he can compete JEE (Main) in April examination.
9 The extraordinary circumstances do not appear to exist for restraining
the Respondents from holding JEE (Main) examination in January 2023. Lakhs
of students must have been preparing for the examination. On the basis of the
present PIL on behalf of a child right activist, it would not be appropriate to
direct postponement of the examination scheduled pan India.
10 As far as the another challenge to the eligibility criteria is concerned,
the learned Advocate for the Petitioner has sought time to file Rejoinder.
11 Place the matter on 21 February 2023."
3. The first prayer for rescheduling the JEE (Main) examination thus
no longer survives. We are accordingly considering the second prayer for
relaxing the criteria of minimum 75% / 65% marks in XII Board
examination.
Kishor V. Kamble 4/14 WP58 of 23.doc
4. Petitioner claims herself to be a child rights activist working for
welfare and redressal of grievances of students. Respondent No.1-
National Testing Agency has been established to conduct entrance
examinations for admission / fellowship in higher educational
institutions. The National Testing Agency issued public notice dated 15th
December 2022 inviting online application forms for Joint Entrance
Examination (JEE) (Main) - 2023 Session I (January 2023) proposing to
hold JEE (Main) 2023 in two sessions in January 2023 and April 2023.
JEE Main and Advanced are to be conducted for admissions to National
Institutes of Technology (NIT), Indian Institutes of Technology (IIT) and
CFITs. An Information Bulletin was published by the National Testing
Agency for JEE (Main) 2023. In chapter 14 of the Information Bulletin
dealing with 'admission' following condition in clause 14.1 has been
incorporated:
14.1 Eligibility for Admission to NITs IIITs and CFITs participating through
Central Seat Allocation Board (CSAB)
Admission to BE / B. Tech / B. Arch. / B. Planning courses in NITs, IIITs and
CFITs participating through Central Seat Allocation Board will be based on All
India Rank subject to the condition that the candidate should have secured at
least 75% marks in the class XII examination conducted by the respective
Boards. For SC/ST candidates the qualifying marks would be 65% in the class
12th / qualyfing examination. The candidate is also required to pass in each of
the subjects of class 12 / qualifying examination.
Petitioner is aggrieved by condition No.14.1 in the Information Bulletin.
Kishor V. Kamble 5/14 WP58 of 23.doc
5. The eligibility criteria of securing at least 75% marks in class XII
examination or be in the top 20 percentile in class XII examination
conducted by respective Boards for admissions to NITs, IITs and CFITs
was first introduced during the academic year 2017-18. Irrespective of
the score of candidate in JEE, they could not be granted admissions to
those institutions unless they secured minimum 75% marks for General
category and 65% marks for SC/ST category in XII std. examination. On
account of Covid-19 pandemic, the said condition of securing minimum
percentage of marks was relaxed for JEEs conducted in the years 2020-
21, 2021-22 and 2022-23. The said minimum criteria is insisted upon in
the JEEs held in the year 2023 (AY 2023-24). Petitioner is aggrieved by
the decision of the National Testing Agency in prescription of the said
criteria and has accordingly filed the present petition in public interest.
6. Interim application No.3656 of 2023 has been filed by Mr. Utpal
Hazra, who is father of Ms. Sneha Hazra. Sneha appeared in class 12 th
examination of CBSE Board in the year 2023 and secured 71.8% marks.
On account of relaxation granted for JEE (Main) 2023, Sneha was
fulfilling the eligibility criteria for admission to NITs, IIITs and CFITs. She
Kishor V. Kamble 6/14 WP58 of 23.doc
appeared for JEE (Mains) 2022 and secured 87.074% marks when cut off
marks for JEE (Advanced) was 88.412438%. Therefore Sneha could not
appear for JEE (Advanced) for 2022, though she was granted admission
for B.Tech course in the Institute of Technology at Chandigarh. Instead of
taking admission, she decided to take a drop with plans to improve her
score in JEE-Mains and Advanced examinations. In Session I of JEE
(Mains) held in January 2023, she scored over 91.5% marks but again
opted out of the admission offered in the institute with plans to appear
again in Session II of JEE (Mains). She has filed intervention application
with a grouse of prescription of 75% marks in 12 th Std. Examination as
eligibility criteria for admission to IITs, NITs and CFITs.
7. We have heard Ms. Anubha Sahai party in person, who is also an
advocate. She would submit that the condition of securing 75% marks in
12th Std. examination was not insisted upon in the years 2021 and 2022
and therefore insistence on that criteria in the year 2023 is arbitrary.
That the objective behind relaxing the criteria in 2021 and 2022 was low
scores by students in 12th Std. examinations due to Covid-19 pandemic.
She would submit that several Covid pandemic affected students who
Kishor V. Kamble 7/14 WP58 of 23.doc
appeared for 12th Std. in 2021 are also eligible to seek admissions in NITs,
IITs and CFITs in the year 2023. Prescription of condition of minimum
75% marks throws such students out of the fray even if they secure
higher marks in JEE-Mains and Advanced.
8. Mr. Thattil, the Ld. Counsel appearing for the Intervener would
submit that the intervener would not be eligible to secure admission to
IIT on account of scoring 71.8% marks in the 12 th Std. examination. That
her marks were decided as per the calculations decided by CBSE for
Covid affected students of the years 2020-21 and 2021-22 under which, a
formula adopted by CBSE was grant of weightage of 30% to first
semester and 70% for second semester. He would submit that there are
thousands of students who could not secure minimum 75% marks in 12 th
Std. examinations particularly in stricter boards like CBSE. He would
further submit that the other relaxation of being in top 20 percentile of
the board is meaningless as in almost all the boards the criteria of
minimum 75% marks is proving to be more stricter than the criteria of
being in 20 percentile and therefore the said relaxation is otherwise
futile.
Kishor V. Kamble 8/14 WP58 of 23.doc
9. Mr. Anil Singh, the Ld. Additional Solicitor General of India would
oppose the petition. He would submit that the criteria of minimum 75%
marks has not been introduced for the first time in the year 2023 and the
same has been in existence since the year 2017-18. That the said criteria
was prescribed even for the year 2020-21 and 2021-22 but by separate
letters, relaxation was granted to that condition on account of Covid-19
pandemic. That petitioners cannot seek continuation of such relaxation
forever. There cannot be any legitimate expectation in a hope. In support
of his contentions Mr. Singh would rely upon judgments of the Apex court
in Maharashtra State Board of Secondary and Higher Secondary
Education and Anr. Vs. Parisosh Bhupesh Kurmarsheth, AIR 1984 SC
1543 and State of Bihar Vs. Sachindra Narayan and Ors., (2019) 3 SCC
803.
10. We have considered the submissions canvassed before us. There is
no denial to the fact that the condition of securing 75% marks (65% for
SC/ST) or being in top 20 percentile of the board was incorporated in JEE
(Main) 2018. The same was repeated in JEE (Main) 2019. The same was
also present in JEE (Main) 2020. However on account of outbreak of
Kishor V. Kamble 9/14 WP58 of 23.doc
Covid-19 pandemic, the Government of India, Ministry of Human
Resource Development, Department of Higher Education issued letter
dated 24th April 2020 directing as under:
"2. For admissions in NITs and other Centrally Funded Technical
Institutions, apart from qualifying the JEE (Mains), the eligibility is to secure a
minimum of 75% marks in 12th Board exams or rank among the top 20
percentile in their qualifying examinations. Due to prevailing circumstances,
as recommended by CSAB-2020 it has decided to relax the eligibility criterion
for admission to NITs and other CETIs. JEE (Mains) 2020 qualified candidates
will now only need to a passing certificate in class XII examination irrespective
of the marks obtained.
3. Above relaxation is one time shall be applicable for the academic year
2020-2021 only. CSAB - 2020 shall follow all other conditions for admission to
under graduate programmes of NITs and other CFTIs.
11. For JEE (Main) 2021, the criteria of minimum 75% marks (65% for
SC/ST) or being within 20 percentile of the board was repeated. However
by letter dated 21st January 2021, the Government of India extended the
relaxation granted in the previous year for JEE (Main) 2021 by directing
them the qualified candidates needed just passing certificate in class 12th
examination irrespective of the marks obtained. For JEE (Main) 2022,
similar relaxation was granted by letter dated 20th June 2022.
Kishor V. Kamble 10/14 WP58 of 23.doc
12. The Government of India has not extended the relaxation granted
in previous 3 years owing to Covid-19 pandemic for JEE (Mains) 2023.
We find that the relaxation was granted on account of existence of special
circumstances by the Government of India. Petitioner and Intervener do
not have any vested right to claim relaxation for the current year's
examination also. Merely because relaxation in criteria of minimum 75%
marks (65% marks for SC/ST) in 12 th Std. was granted in the previous 3
admission processes, the same would not entitle the students to continue
to claim relaxation indefinitely.
13. It would not be possible for this court to sit in judgment over the
decision of the National Testing Agency in prescribing the eligibility
criteria for admissions to NITs, IITs and CFITs. Though National Testing
Agency has filed additional affidavit dated 26 th April 2023 offering
justification for prescription of criteria of 75% marks, we cannot go into
the merits of the said justification. In this regars, reliance placed by Mr.
Singh on the judgment of the Apex Court in Paritosh Bhupesh
Kurmarsheth (supra) is apposite, wherein it is held :
"16. In our opinion, the aforesaid approach made by the High Court is
Kishor V. Kamble 11/14 WP58 of 23.doc
wholly incorrect and fallacious. The Court cannot sit in judgment over the
wisdom of the policy evolved by the Legislature and the subordinate
regulation-making body. It may be a wise policy which will fully effectuate the
purpose of the enactment or it may be lacking in effectiveness and hence
calling for revision and improvement. But any drawbacks in the policy
incorporated in a rule or regulation will not render it ultra vires and the Court
cannot strike it down on the ground that, in its opinion, it is not a wise or
prudent policy, but is even a foolish one, and that it will not really serve to
effectuate the purposes of the Act. The Legislature and its delegate are the sole
repositories of the power to decide what policy should be pursued in relation
to matters covered by the Act and there is no scope for interference by the
Court unless the particular provision impugned before it can be said to suffer
from any legal infirmity, in the sense of its being wholly beyond the scope of
the regulation-making power or its being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations
imposed by the Constitution. None of these vitiating factors are shown to exist
in the present case and hence there was no scope at all for the High Court to
invalidate the provision contained in clause (3) of Regulation 104 as ultra
vires on the grounds of its being in excess of the regulation-making power
conferred on the Board. Equally untenable, in our opinion, is the next and last
ground by the High Court for striking down clause (3) of Regulation 104 as
unreasonable, namely, that it is in the nature of a bye-law and is ultra vires on
the ground of its being an unreasonable provision. It is clear from the scheme
of the Act and more particularly. Sections 18, 19 and 34 that the Legislature
has laid down in broad terms its policy to provide for the establishment of a
State Board and Divisional Boards to regulate matters pertaining to secondary
and higher secondary education in the State and it has authorised the State
Government in the first instance and subsequently the Board to enunciate the
details for carrying into effect the purposes of the Act by framing regulations.
It is a common legislative practice that the Legislature may choose to lay down
only the general policy and leave to its delegate to make detailed provisions
for carrying into effect the said policy and effectuate the purposes of the
statute by framing rules/regulations which are in the nature of subordinate
legislation. Section 3(39) of the Bombay General clauses Act, 1904, which
defines the expression "rule" states:"Rule shall mean a rule made in exercise of
the power under any enactment and shall include any regulation made under
a rule or under any enactment". It is important to notice that a distinct power
of making bye-laws has been conferred by the Act on the State Board under
Section 38. The Legislature has thus maintained in the statute in question a
clear distinction between "bye-laws" and "regulations". The bye-laws to be
framed under Section 38 are to relate only to procedural matters concerning
the holding of meetings of the State Board, Divisional Boards and the
Committee, the quorum required, etc. More important matters affecting the
rights of parties and laying down the manner in which the provisions of the
Kishor V. Kamble 12/14 WP58 of 23.doc
Act are to be carried into effect have been reserved to be provided for by
regulations made under Section 36. The Legislature, while enacting Sections
36 and 38, must be assumed to have been fully aware of the niceties of the
legal position governing the distinction between rules/regulations properly so
called and bye-laws. When the statute contains a clear indication that the
distinct regulation-making power conferred under Section 36 was not
intended as a power merely to frame bye-laws, it is not open to the Court to
ignore the same and treat the regulations made under Section 36 as mere bye-
laws in order to bring them within the scope of justiciability by applying the
test of reasonableness."
14. Petitioners cannot claim relaxation in eligibility criteria as a
matter of right. Whether relaxation is to be extended or not is in the
realm of policy decision of the government. The government may or may
not relax the eligibility conditions depending on fact situation.
Undeniably, the very same eligibility condition existed during the years
2017-18, 2018-19 and 2019-20 and the students seeking admission
during those years accepted the said condition and the entire process of
admissions was completed by following the said eligibility criteria. We do
not find the said eligibility condition to be arbitrary in any manner.
Petitioner or intervener have also not challenged prescription of the said
condition. What they seek is essentially relaxation of the said condition.
The relaxation is sought under legitimate expectation that the
government would extend relaxation for the current year as well.
However in absence of any vested right, no legitimate expectation would
Kishor V. Kamble 13/14 WP58 of 23.doc
exist. In State of Bihar Vs. Sachindra Narayan (supra), the Apex Court has
held :
"23. In view of the above judgments, legitimate expectation is one of the
grounds of judicial review but unless a legal obligation exists, there cannot be
any legitimate expectation. The legitimate expectation is not a wish or a desire
or a hope, therefore, it cannot be claimed or demanded as a right"
15. The students, whose cause petitioner is allegedly espousing,
neither have any vested right nor legitimate expectation to claim
relaxation in the eligibility criteria for admissions to NITs, IITs and CFITs
during the current year. Since grant of relaxation is a policy decision, the
same can be taken by the Government of India in appropriate
circumstances. This court would not be in a position to issue Writ of
mandamus directing the government to grant relaxation in the eligibility
criteria for admissions.
16. It is also required to be borne in mind that the JEE is held pan India
and thousands, perhaps lakhs, of students participate in the same. This
would be another reason why this court would be loathe in interfering in
the methodology of conducting JEE and / or admission process,
particularly when the two sessions of JEE 2023 has already been
Kishor V. Kamble 14/14 WP58 of 23.doc
conducted and JEE (Advanced) is scheduled to be held in a short while
from now.
17. Resultantly, we do not find any merit in the petition. PIL Petition is
accordingly dismissed without any orders as to costs. Interim
Applications also stand disposed of.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
