Vipin Sharma vs Guru Gobind Singh Indraprastha ...
2009 Latest Caselaw 2699 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C.) No.8380/2009

%                       Date of Decision: 20.07.2009

Vipin Sharma                                             .... Petitioner

                       Through Mr.Anil Sapra and Mr.S.Uday Kumar
                               Sagar, Advocates.


                                Versus


Guru Gobind Singh Indraprastha University & Anr.       .... Respondents

                       Through Mr.Sanjiv Goel, Advocate for the
                               respondent No.1.
                               Mr.Vinod Wadhwa, Advocate for the
                               respondent No.2.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be            YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?              YES
3.     Whether the judgment should be reported in          YES
       the Digest?



ANIL KUMAR, J.

*

1. The petitioner is a final year student of the B.A.LL.B (Hons.)

course at the University School of Law and Legal Studies of the Guru

Gobind Singh Indraprastha University. The petitioner had not taken the

Indirect Taxes paper of his 9th semester. As per the Rules and

Regulations governing the conduct of examinations of the respondent

University the petitioner is eligible to take the `Indirect Taxes' paper

only along with the examinations to be conducted for odd semester

papers in December, 2009. In the present writ petition the petitioner

has sought a direction to the Respondent University to conduct a

special supplementary examination of the 9th semester paper of

`Indirect Taxes' by exercising the discretionary power of the Vice

Chancellor or in the alternative a direction to the Respondent University

to amend/alter/modify Rule 11(1)(b) of Ordinance-11 of the Respondent

University which stipulates the holding of examination only once a year

for a subject of the particular semester.

2. The petitioner has averred that while he was on his way to take

the third exam of the ninth semester i.e. the optional examination of

Indirect Taxes on 10th December, 2008 he allegedly suffered from severe

abdomen and unspecified chest pain, which according to the petitioner,

literally paralyzed him to travel any further and he had to be taken to

the Ram Manohar Lohia Hospital at around 1 PM and he was

discharged on the same day. As a result the petitioner was unable to

take the said examination. It has been averred that the father of the

petitioner, on the advice of the respondent University, made a

representation dated 29th December, 2008 to the Vice Chancellor of the

respondent University explaining the facts and circumstances which

prevented the Petitioner from appearing in the paper of `Indirect Taxes'

and requesting him to allow the petitioner to appear in paper of

`Indirect Taxes' at anytime on or before the Xth Semester so that the

petitioner could pursue higher studies in any of the colleges from which

he had received admission offers.

3. The petitioner has contended that though the respondent

University has taken no action on the representation dated 29th

December, 2008 he was given to understand by the respondent

University that the respondent University as per Ordinance 11, Rule

11(b)(i) holds examination only once a year for a subject of the

particular semester i.e. in case a student fails or fails to appear in the

examination of one semester, then the only option left with him is to

take the examination whenever the examinations of that semester are

conducted. The said rule is stated to be applicable to all Law students

irrespective of their year of study. The petitioner has contended that

there is little rationale behind holding the exam after a year and that

there is a certain lack of nexus with the purpose it seeks to fulfill. The

petitioner has contended that the delay of one year in re-appearing for

the supplementary examination would not only affect his obtainment of

LL.B degree but would also harm his future career prospects for no

fault of his, particularly in the light of the fact that the petitioner has

been offered admission at some of the prestigious higher learning

institutions in United Kingdom. The petitioner has contended that the

above said rule of the Respondent University relating to holding of the

repeat/supplementary examination only after one year is completely

unconstitutional being unfair, discriminatory, arbitrary, oppressive,

unduly harsh and in violation of principles of natural justice and Article

14 and 16 of the Constitution. It is also contended that the said rule

violates the petitioner's Fundamental Right to Education guaranteed

under Article 21 of the Constitution as the rule delays the process of

completion of education by one year.

4. The petitioner has further contended that in almost all other

Universities there is a provision for repeat/supplementary examination

immediately after the regular semester examinations, especially for final

year students with the object that a valuable year of a student is saved.

To substantiate his contention the petitioner has produced the rules of

University of Delhi (Academic Bulletin 2008, Law Department, rule

No.15), National Law School of Indian University, Bangalore (Academic

and Examination Regulations, Rule V), National Law School University,

Delhi (Examination Rules; End Semester/Repeat and Improvement

Examination) and Jamia Milia Islamia University (Ordinance Academic,

Part I, Ordinance No.15, The University Examinations, Bachelor of

Laws, Section 6(b)(ii)). The petitioner has also contended that all the

Universities in India including the Respondent University comply with

the rules and regulations of UGC as well as that of other regulatory

bodies such as Bar Council of India, AICTE, Medical Council of India,

Dental Council of India etc. who have set out standard for promotion

and regulation for higher education in their respective areas and that

nowhere do such rules prescribe that repeat/supplementary exam

could be held only after an year. The petitioner has further contended

that the respondent University itself provides for repeat/supplementary

examination immediately after the regular semester examination of

other professional courses including its MBBS course and therefore, the

Rules of the respondent University for not holding

repeat/supplementary examination immediately after the regular

semester examination for LL.B course is unfair, unreasonable,

arbitrary, discriminatory and a gross abuse of process.

5. The petitioner has averred that the respondent University itself

has made exceptions and has allowed many students in the past

including various foreign nationals from Iran to appear in the

repeat/supplementary examination in the immediate next semester.

The petitioner has also produced the mark sheet of one Karan Gulati, a

student of the LL.B 2004 batch who had missed seven of his law papers

but was allowed to write all the seven papers that he had missed in the

very next semester. In the circumstances it is contended that not

allowing the petitioner to appear for Indirect Taxes examination in the

very next semester i.e the 10th semester is highly discriminatory and is

in violation of the fundamental rights of the petitioner under Article 14

and Article 16 of the Constitution of India. The petitioner has also filed

an additional affidavit dated 26th June, 2009 in which he has averred

that in response to an RTI application dated 21st April, 2005 filed by

him seeking information on how many students have been allowed by

the respondent University to take supplementary/repeat examination in

the immediate/next semester, as against the present rule of holding

exams in alternate semester, the respondent University has clearly

admitted to it conducting supplementary/repeat examinations for

students upon their request.

6. The petitioner has contended that he has been declared

successful in all the subjects and papers that he has taken and he is a

student of the last semester and therefore, if he is not permitted to

appear in the Indirect Taxes paper of the 9th Semester his career would

be ruined as he would have to wait for one year to appear in the said

paper which would be held in the month of December 2009.

7. The respondent University has contested the petition contending

inter alia that the writ petition suffers from delay and latches. It is

contended that though the petitioner had failed to appear in the

examination conducted on 19th December, 2008 and was aware of the

Rules and Regulations contained in Ordinance-11 of the University, the

present petition was filed only on 22nd April, 2009. It is also contended

that the petitioner being well aware of the Rules and Regulations of the

respondent University relating to examinations participated in the

admission process and pursued his course up to 10th semester and

therefore, he is now stopped from raising any objection against the

Rules of the respondent University at this stage.

8. The respondent University has averred that the law courses

conducted by them follow the semester system of studies and the

examinations are normally held in the months of May/June and

November/December. It is averred that the conduct of examinations is

governed by Ordinance-11 issued by the University and that Clause

11(1)(b) of the said Ordinance stipulates that a student who fails in a

subject shall be allowed to re-appear in a semester end examination of

the course in a subsequent semester(s) when the course is offered. It is

therefore, averred that the petitioner would be eligible to take the

examination of Indirect Taxes of the 9th semester, in which he had failed

to appear, only in the examination to be conducted in December 2009.

It is also averred that the petitioner has been promoted to the 10th

semester, which semester would come to an end only in May/June

2009 and therefore, if the petitioner takes his Indirect Taxes paper in

December 2009 he would be missing six months and not 1 year as

contended by the petitioner.

9. The respondent University has also averred that the

representations received from the petitioner as well as from other

students were placed before a 4 member committee constituted by the

Vice Chancellor comprising of Professor Yogesh Singh, Controller of

Examination; Professor Anup Singh Beniwal, Dean, University School of

Humanities & Social Studies & University School of Education;

Professor Suman Gupta, Dean, University, School of Law & Legal

Studies and Professor Avinash Sharma, Former Dean, University School

of Basic & Applied Science. The committee in its meeting dated 17th

April, 2009, after considering the criteria for candidates for final year

who could not appear in any examinations of odd semester due to

unavoidable circumstances, had decided that the request of the

students cannot be granted. The minutes of the meeting dated 17th

April, 2009 has been filed by the respondent University. The decision

dated 17th April, 2009 is as under:-

" The committee discussed this important issue in depth and also considered the consequences of any decision which may help few students but compromise with the quality of education system. The committee recommended that such cases should not be considered in the academic interest of the University."

10. The respondent has also averred that in view of the large number

of students of about 90 programmes, it is unable to conduct

examination as per the request of the petitioner. It is further averred

that the request of the petitioner is not feasible and if it is acceded to

the sanctity of the whole examination system will evaporate and it will

disrupt the entire system.

11. The petitioner also contended that under Clause-16 of Ordinance-

11 of the respondent University, the Vice Chancellor has the authority

to decide as to whether supplementary examinations ought to be

conducted for students who have failed to appear in one or more papers

in the 9th semester especially those who do not appear for some reasons

as the cases of such students is not covered under clause 11 (b) (i). It

was also noted that a similar provision also existed in Section 10 of the

Guru Govind Singh Indraprastha University Act. This Court had also

directed the Vice Chancellor to consider the case of the petitioner

sympathetically and to reach a decision expeditiously. The relevant

portion of the order dated 25th May, 2009 is extracted below -

"Counsel for the petitioner has drawn my attention to Clause-16 of the Ordinance, which gives authority to the Vice Chancellor to take a decision. It is stated by the counsel that a similar provision also exists in Section 10 of the Guru Gobind Singh Indraprastha University Act. Vice Chancellor may re-examine the matter in the light of the said provisions and pass an appropriate order. Holding of supplementary examination for students, who have failed to appear in one or more paper in the 9th semester may cause some inconvenience to the university but the inconvenience and difficulty faced by the students, who will loose one year cannot be ignored and requires sympathetic consideration. Learned Vice Chancellor is required to take appropriate decision expeditiously preferably within a period of four weeks."

12. Pursuant to the above said order, the Vice Chancellor

reconsidered the case of the petitioner and on 24th June, 2009 passed

an order stipulating that it would not be possible to accede to the

request of the petitioner to conduct special supplementary examination

of the `Indirect Taxes' paper for him. The said order has been brought

on record through an additional affidavit dated 29th June, 2009. In his

reply affidavit the petitioner has assailed the order of the Vice

Chancellor on the grounds inter alia that the Vice Chancellor had

reconsidered the case of the petitioner with a closed mind and he had

proceeded on the basis that he could not allow holding of

supplementary examination, as the same is not covered under his

discretionary power and in order to allow supplementary examination

the University Ordinance had to be amended. The petitioner has further

averred that despite this Court having directed the Vice Chancellor to

consider the case of the petitioner sympathetically, the Vice Chancellor

has turned a blind eye to the difficulties faced by him. It is contended

that the decision of the Vice Chancellor ought to have been guided from

the interest of the petitioner and to his career and the difficulty faced by

him, which was not at all considered by the Vice Chancellor.

13. The petitioner has also contended that even though this Court

vide order dated 25th May, 2009 had only directed the Vice Chancellor

to consider the petitioner's case, the Vice Chancellor has gone on to

consider the case for all the students of the Respondent University. It is

contended that the case of the petitioner should have been treated

separately and independently. The petitioner has further averred that

that the Vice Chancellor has not considered the case of the petitioner at

all as there is no mention at all in the order about the merits of the

petitioner's case. The petitioner has also alleged that the Vice

Chancellor is adopting double standards as on one hand he has refused

to conduct supplementary examination for the petitioner urging

grounds of academic excellence and habit of discipline, while on the

other hand, he vide order dated 16th January, 2009 had allowed

awarding of grace marks, despite there being no provision for the same

in the University Ordinance, thereby permitting to give degrees to those

students who could not qualify the pass marks and have in fact failed

in one or more papers.

14. Mr.Anil Sapra, learned counsel for the petitioner has also very

vociferously contended that Clause 11 of Ordinance 11 regarding

conduct and evaluation of examination for programmes leading to all

bachelors/masters degrees and undergraduate/post graduates

diplomas following semester system is not applicable in the case of the

petitioner as Clause 11(b)(i) talks only about a student, who obtains

less than 50% marks, being allowed to reappear in a semester end

examination of the course in subsequent semesters. According to the

him the petitioner was prevented from appearing in the examination of

indirect taxes (Code No.507J) on account of his medical condition and

he had not failed and, therefore, the case of the petitioner is not covered

under the sub Clause (b)(i) of clause 11. According to the learned

counsel since the matter pertaining to the petitioner is not covered by

the ordinance, the Vice Chancellor had the jurisdiction to take a

decision and the decision of the Vice Chancellor could be final under

Clause 16 of Ordinance 11. It has also been contended that the decision

of the Vice Chancellor ought to be independent and not necessarily in

consonance with the opinion/advice of the committee consisting of

some or all the deans of the University.

15. The learned counsel has relied on an order of a Single Judge

dated 17th October, 2008 titled S.M.Hamoodur Rehman Faridi v. Jamia

Millia Islamia University & Anr; Khudiram Das v. The State of West

Bengal & Ors., (1975) 2 SCC 81; K.Shekar v. V.Indiramma & Ors.,

(2002) 3 SCC 586; Union of India v. Association for Democratic Reforms

and Anr., (2002) 5 SCC 294 and Principal, King George's Medical

College, Lucknow v. Dr.Vishan Kumar Agarwal and Anr., (1984) 1 SCC

416 in support of his pleas and contentions.

16. I have heard the learned counsel for the petitioner and the

respondent University and have also perused the petition, reply,

additional affidavits and the reply affidavits. Admittedly the conduct of

examinations by the Respondent University is governed by Ordinace-11

of the Respondent University. The clauses relevant for the issue at hand

are Clauses 11 and 16 of the said ordinance which are reproduced

below:

11. CRITERIA FOR PASSING COURSES, MARKS AND

DIVISIONS

(a) (i) Obtaining a minimum of 50% marks in aggregate in each course including the semester-end examination and the teacher's continuous evaluation shall be essential for passing the course and earning its assigned credits. A candidate, who secures less than 50% of marks in a course, shall be deemed to have failed in that course.

(ii) A student may apply, within two weeks from the date of the declaration of the result, for re-checking of the examination script(s) of a specific course(s) on the payment of prescribed fees. Rechecking shall mean verifying whether all the questions and their parts have been duly marked as per the question paper, and the totalling of marks. In the event of a discrepancy being found, the same shall be rectified through appropriate changes in both the result as well as marks-sheet of the concerned semester-end examination.

(b) (i) A student obtaining less than 50% of maximum marks (including semester end examination and Teacher's Continuous Evaluation) assigned to a course and failing in the course shall be allowed to re-appear in a semester end examination of the course in a subsequent semester(s) when the course is offered, subject to maximum permissible period of (n+4) semesters as mentioned in clause 4(c). The re-appearing students who secured less than 50% marks in the teacher's continuous evaluation have the option to repeat and improve the two class tests performance with the next batch of students, in such cases the improved internal marks, if received from the school/institution concerned at least 7 days before the commencement of semester end-term examination shall be considered, otherwise the previous internal marks already

obtained by the student shall be taken into account without any modification.

No extra fee shall be charged from the students in this regard.

(ii) A student who has to reappear in a semester end-term examination in terms of clause (b)(i) above shall be examined as per the syllabus which will be inoperation during the subsequent semester(s). However, in case the student(s) claimed that there are major modifications in the syllabus which is in operation as compared to the syllabus which was applicable at the time of his/her joining the concerned programme and the Dean of the School/ Chairman/Co-ordinator of the Programme Committee so certifies, the examination may be held in accordance with the old syllabus, provided such request shall be received to Controller of Examination at least 3 weeks prior to commencement of semester end-term examination.

Students who are eligible to reappear in an examination shall have to apply to the Controller of Examinations through the School / Institution concerned to be allowed to reappear in an examination and pay the fees prescribed by the University.

(iii) If a student has poor performance in a number of courses in a particular semester, he may, at his option, take an academic break for one year, and reregister for either both the semesters of that academic year in the next academic year. Such a student may have the option of repeating any or all of the courses in the semester(s) and retain the credits already earned by him in other course(s).

For calculating the CPI, and determining the passing/failure in a course, and eligibility for award of a degree, the marks obtained in the repeat course(s) will be taken into consideration.

(c) A candidate who has earned the minimum number of credits prescribed in the concerned Scheme of Teaching & Examination and Syllabi, shall be declared to have passed

the programme, and shall be eligible for the award of the relevant degree or diploma. The Scheme of Teaching & Examination and Syllabi shall clearly specify the minimum credits to be earned to qualify for a degree or diploma. The credits included in the Scheme of Teaching & Examination and Syllabi of a programme shall generally be 5-10% more than such minimum specified credits.

Further, the successful candidates will be placed in Divisions as below:

1. Second Division: A candidate obtaining a Cumulative Performance Index

(CPI) at the end of the programme of 50 and above but below 60, shall be placed in Second Division.

2. First Division: A candidate obtaining a CPI at the end of the programme of and above but below 75 shall be placed in the First Division

3. First Division with Distinction: A candidate obtaining a CPI at the end of the programme of 75 and above shall be placed in First Division with Distinction, provided, the candidate has passed all the courses for which he has earned credits, in the first attempt. Further, a candidate obtaining a CPI of 90 and above shall be deemed to have passed the programme with exemplary performance provided he/she has passed all the courses for which he has earned the credits, in the first attempt. Such candidates will be awarded a special University Certificate to this effect.

4. For the above, Cumulative Performance Index (CPI) shall be calculated as in Clause 14 and shall be based only on marks obtained in courses for which credits have been earned.

............................................. .............................................

16. Notwithstanding anything stated in this Ordinance, for any unforeseen issues arising, and not covered by this Ordinance, or in the event of differences of interpretation, the Vice-Chancellor may take a decision, after obtaining if necessary the opinion/advice of a Committee consisting of any or all the Deans of the Schools. The decision of the Vice-Chancellor shall be final."

17. Clause 11(b)(1) provides for conduct of supplementary

examinations for students who have failed to obtain 50% marks. The

petitioner has assailed the said clause as being arbitrary. It is settled

law that the High Court in exercise of jurisdiction under Article 226 of

the Constitution of India should ordinarily be reluctant to interfere with

the matters relating to the internal working of educational institutions

since the decisions taken by the academic bodies are in the nature of

policy decisions. The decisions can be interfered with only in case they

are unreasonable or arbitrary. It should also be kept in mind that the

regulations are made on the basis of experience of actual day to day

working of the educational institution and consequently the Court

should not exercise the power to interfere with the internal working of

an educational institution imparting education unless the decisions are

ex facie unreasonable, arbitrary or in denial of the principles of natural

justice. In Ashutosh Bharti and Ors v. The Ritnand Balved Education

Foundation (Regd) and Ors, MANU/DE/0024/2005 a Division Bench of

this Court while dealing with the cases of the students who had

shortage of attendance and who had challenged the decision of the

academic body to consider the condonation of shortage of attendance of

only 5% and not beyond 5% had held that if any step is taken by an

academic body towards better educational method and standard, the

Court should not come in the way but the Court should rather

commend and encourage it. It was held that though those who fail to

maintain standards round the year may lose a very valuable year of

their young career, just as they lose if they fail in the examination but

matters of academic judgment are not for the Courts to entertain. Better

standards are required for learning and it can be got from experiences

and different modalities. In the circumstances, it was observed that

educational institutions are the best judge to impose appropriate

restrictions and conditions. Merely because the conditions which are

imposed should be found inconvenient to some students it cannot be

challenged as being arbitrary.

18. The power of the Court to review the university rules prescribing

minimum attendance of post graduates was considered by a Single

Judge in Azra Seema Iyengar v. J.P.S.Oberoi and Anr, AIR 1979 Delhi

101. In this case the petitioner was a student of MA (Previous) in the

Department of Sociology for a two year course. The petitioner had

irregular attendance in tutorials and seminars. Out of total 46 seminars

the student had attended only 24 as against the minimum requirement

of 34. Though a medical certificate was produced by her but even

considering the period when she was not medically fit, she was still

short of attendance and an order was passed detaining her, which

action of the Department was challenged by her. The plea of the

petitioner that requirement of eligibility with reference to the attendance

at tutorials, seminars etc. for post graduate students being

unreasonable on the ground that students at that level were sufficiently

matured to look after their own interest and could complete their

requisite course of study even on their own, without the assistance of

the university or attendance at the tutorials or participation in the

seminars, was repelled and rejected. It was held as to what should be

the attendance requirement and whether the attendance for seminars

and tutorials is necessary or not is more of a policy decision and this

facet of the system of education is to be considered by educationists

and not by the Court and it will be beyond the scope of judicial review.

The said student, however, had been allowed to appear in the

examination under the directions made by the Court and in the

circumstances it was contended that the university authorities should

take a sympathetic view especially since the petitioner was able to

secure requisite marks at the examination. The Court had held that it

would not be appropriate for the Court to make any direction to the

university even if the suggestion of the student was reasonable as it was

for the university authority to consider the matter.

19. The Supreme Court in Pramod Kumar Srivastava v. Chairman,

Bihar Public Service Commission and Ors, (2004) 6 SCC 714 had set

aside the order of Patna High Court directing re-evaluation of the

answer book of a candidate although there was no provision for re-

evaluation of the answer book. It was held that in absence of any

provision for re-evaluation of answer books in the relevant rules, no

candidate has got any right whatsoever to claim or ask for re-evaluation

of his marks. While setting aside the judgment of the High Court, the

Apex Court had held that in absence of a specific provision conferring a

right upon an examinee to have his answer books re-evaluated no such

direction could be issued by a Court.

20. When an academic year should commence and when it should

end was held to be eminently a matter for the education authorities and

not for the Court in State of U.P and Ors v. D.K.Singh and Ors, (1986) 4

SCC 160 by the Supreme Court. It was held that Court should not

dislocate the time schedule of the University for the convenience of a

few students. In this case some of the students were unable to apply for

admission to the post graduate courses which commenced in March,

1986. It was claimed by the students who had not been able to get

admission that it would be wastage of time for them to wait for six

months till January, 1987 for admission to the next post graduate

course. Representation were made to the authorities and on their failure

to accept the representations, a writ petition was filed in the High Court

seeking a direction to the authorities to commence the post graduate

course in July, 1986 instead of January, 1987 and admit them so that

there may be continuity and no disruption in their medical studies. The

High Court had allowed the writ petition holding that it was

unreasonable on the part of the authorities to compel the students to

wait for six months for no fault of theirs. The High Court had also

expressed the view that the authorities were unnecessarily rigid in their

view that the post graduate course should commence in January only.

The order of the High Court was set aside by the Supreme Court

holding that the Court was not justified in interfering in a matter of

such an academic nature. It was further held that the question whether

a course of study should commence in January or July of a year in a

post graduate medical institution is dependent on number of factors

like the availability of seats, availability of beds in the hospital, the

availability of teachers, laboratories and equipment and a host of other

factors with which the Courts are not familiar and ordinarily it should,

therefore, be a matter best left to the university to decide.

21. In the light of the law laid down in abovementioned decisions I

find it difficult to accept the contention of the petitioner that Clause

11(b)(i) of Ordinance-11 of the Respondent University is arbitrary as it

stipulates holding of semester examination only once a year for a

subject of the particular semester. It could be that the petitioner is

inconvenienced by the said rule of the respondent University. It could

also be that on account of the said rule the petitioner stands to loose

out on his chances of pursuing his higher education abroad this very

academic year. But these are not grounds that would compel this court

to exercise its extraordinary jurisdiction under Article 226 of the

Constitution to strike down academic policy of the respondent

University.

22. The next contention that has been put forth by the learned

counsel for the petitioner is that Clause 11(b)(i) applies only to a

student who has failed to secure 50% marks and as the petitioner has

absented himself from the `Indirect Taxes' paper he cannot be

considered as failed and therefore Clause 11(b)(i) has no application to

the petitioner's case. Further, relying on Union of India v. Association

for Democratic Reforms & Anr., (2002) 5 SCC 294 it was contended that

as there is no provision regarding the conduct of supplementary

examination for students, like the petitioner, who were prevented from

appearing in the examinations due to medical or other unforeseen

circumstances, this court has the power to make appropriate directions

till such time as the University amends its Ordinance.

23. The plea of the learned counsel for the petitioner that the case of

the petitioner is not covered under Ordinance 11 Clause 11(b)(i) is

based on a restrictive interpretation of the relevant clause. The sub

Clause (b)(i) contemplates that any student obtaining less than 50%

marks and failing in the course can reappear in a semester end

examination of the course in a subsequent semester(s) when the course

is offered. This cannot be restricted to only those students who have

appeared and failed to secure less than 50% marks. If any student fails

to appear in the examination, for any reason whatsoever, such a

student shall also be covered under the sub clause. Such a student

would be deemed to have secured less than 50% marks as securing no

marks for whatsoever reason is also equivalent to securing less than

50% marks as contemplated under the said clause. Consequently, the

plea of the learned counsel that the case of the petitioner is not covered

under Clause 11(b)(i) cannot be accepted and the plea is not

inconsonance with the purposive interpretation of the said clause.

Consequently, the reliance of the petitioner on Union of India v.

Association for Democratic Reforms & Anr. (supra) where it was

observed that when act or rules are silent on a particular subject and

the authority implementing the same have constitutional or statutory

power to implement it, then the Court can necessarily issue directions

or orders on the said subject to fill the vacuum or void till the

constitutional law is legislated, is of no consequence.

24. The restrictive meaning propounded by the learned counsel for

the petitioner will create many anomalous circumstances. If such a

construction is adopted, then a student who is unwell but gathers

enough courage to turn up at the examination hall but is however

prevented from answering any questions on account of his illness and

consequently gets less than 50% marks would be covered under Clause

11(b)(i) whereas a student who on account of medical problem who

could not gather enough courage to come to examination at all will not

be covered by Clause 11(b)(i). A student who is hale and hearty and

suddenly develops some medical complication during the examination

will also be not entitled to contend that his case is not covered under

clause 11 (b) (i). In the circumstances, the contention of the learned

counsel that the case of the petitioner is not covered under sub clause

(b) (i) of clause 11is not acceptable and is rejected.

25. The petitioner has also impugned the order dated 24th June, 2009

of the Vice Chancellor of the Respondent University, issued pursuant to

the order of this Court dated 25th May, 2009 whereby the Vice

Chancellor was directed to re-consider the case of the petitioner

sympathetically. The order of the Vice Chancellor dated 24th June,

2009 is reproduced below:-

" The undersigned has gone through the order passed by the Hon'ble High Court on 25th May, 2009 directing the Vice Chancellor to take appropriate decision on the request of the above named petitioner for holding of supplementary examination for students who have failed to appear in one or more papers in the ninth semester.

2. that the entire facts of the case have been persued by me and in the light of powers conferred upon the undersigned by virtue of clause 16 of the Ordinance as well as under Section 10 of the Guru Gobind Singh Indraprastha University Act, I have considered the case sympathetically, but after going through the entire factual matrix of the case and the fact that allowing one student to reappear in one paper will mean allowing such requests

from many other students who fail in one or two papers of the ninth semester. I have also examined the record of the earlier cases which have been cited by the petitioner i.e the cases of Shri Hemant Bellani (2004), Ms.Vandana Sharma (2006), Sh.Sunny Chabra (2006) and Shri Karan Gulati (2007). All these cases were dealt by the predecessor of the undersigned in peculiar facts of the case and they cannot be cited as a binding precedent, as basically all these cases are contrary to the rules. Exception once made has been relied upon by the present petitioner and if the same mistake is repeated by the V.C again, then it implies nullifying the University Ordinance and Statute, which are normally to be amended by the legislature after due deliberations at different levels.

3) that I have also considered whether as a general rule we could allow supplementary examination to help the students who fail in one or two papers of the ninth semester, but after going through the entire record and the University statute, permitting supplementary examination is not possible as same is not within my exclusive jurisdiction. For that purpose the University Ordinance and stature are to be amended.

4) that I have also considered the facts and I am of the view that the Universities are the institutions for academic excellence and they are to be inculcate the habit of discipline and academic excellence in the students. If the students are allowed to bypass the rules by citing one or the other exception in their favour then throughout their future career, they will develop this habit of bypassing the rules by resorting to some or the other excuse.

5) that I have also examined the mater on humanitarian consideration, but humanitarian consideration is a word which is capable of being misused in every case by the students. Moreover, in case of L.L.B students for the current academic year, I find that there are about 10 to 20 students who may be similarly placed as Shri Vipin Sharma. Similar cases are there in other departments which amounts to 50 to 60 cases. All have one or the other

excuse for either not appearing in a paper or if they fail in one paper, they may also take a plea that whey they should wait for another six months to appear in the said paper and the University should take supplementary exam. Compulsions of the students and the fact that they may not be able to pursue any other higher education for six months, cannot be made a sole ground to deviate from the established rule where examinations in the system are conducted twice in a year. i.e in December for the first, third, fifth, seventh and ninth semester and in the month of April/May for the second, fourth, sixth, eighth and tenth semesters. The University is imparting education in many other fields/disciplines, similar demand may be raised by the students of those faculties/schools and the Controller of Examination would be hard pressed to conduct supplementary examinations in about 900 papers of various courses offered by this University. In the given infrastructure to conduct such special supplementary examinations will also have tremendous impact on the declaration of the scheduled results.

6) thus, I am of the considered view that holding of a supplementary examination for one individual or group of individuals, who either fail in one paper in their final examination in one semester, or could not appear due to sickness or any other such ground, will be impracticable and will open a Pandora's box and the University with given infrastructure will not be able to cope up with the pressure of conducting such supplementary exams.

7. that L.L.B is a professional course and the prime object of getting an L.L.B degree is to become an advocate and a responsible citizen. If due to the fact that a person is not able to clear one paper in the ninth semester than after passing the tenth semester the person can go to the Court and learn the Court procedure as a trainee, so that after his qualifying L.L.B degree after six months, he may be better equipped as a lawyer and the time will not be waster. Moreover, if any, foreign or Indian university rules permit, a person may join L.L.M course awaiting L.L.B final results. Moreover, a person may take admission on L.L.M course in

foreign universities which are making admissions twice in a calendar year, unlike the present University and other Indian universities.

Hence, after examining the whole issue, it is not possible to accede to the request of the petitioner to reconsider his case."

26. The cases relied on by the petitioner for impugning the above

reproduced order of the Vice Chancellor are apparently distinguishable.

In S.M.Hamoodur Rehman Faridi (Supra) the petitioner in that case had

secured 128 marks out of 200 whereas the topper had secured 133

marks and despite having such high ranking in the competitive

examination, he was denied admission as he did not meet the age

requirement of completing 17 years as on 1st October, 2008 and he had

fallen short of about two months. Under the ordinance of the University,

Vice Chancellor was empowered to grant relaxation in age upto one

year. Despite the power of the Vice Chancellor, the stand taken by the

Vice Chancellor was that as a matter of policy and principle, it was

decided that no relaxation shall be granted in the age limit. A Single

Judge of this Court had held that a uniform decision not to grant the

age relaxation tantamount to failure to perform the corresponding duty

of the Vice Chancellor who is vested with discretionary power. It was

held that policy and principle could not be evolved by the Vice

Chancellor which could go contrary to the ordinance which permitted

age relaxation upto one year.

27. The case of the present petitioner is apparently and completely

different. Had the decision of the Vice Chancellor been that as a policy

no supplementary examination of odd semester will be conducted with

even semester or even semester with the odd semester ever, such a

hypothetical order might have been in negation of the power conferred

under the ordinance on the Vice Chancellor and failure on his part to

exercise his discretion could be termed unreasonable. However, in the

present case the Vice Chancellor has declined to conduct the

supplementary examination for cogent reasons. It has been noticed by

the Vice Chancellor that if the supplementary examination is conducted

for the petitioner, that will entitle other 10 to 20 students also who are

in similar situation as the petitioner to appear in the supplementary

examination. The Vice Chancellor has to consider the case of a student

in relations to and in the back ground of other students also. If there a

number of courses the authorities have to consider the cases of all the

students in such courses. Any exception to the rule has to be applied

equally to all the students. Merely because the petitioner may have

difficulty in getting admission in some foreign universities cannot be a

ground to treat the petitioner as a special class and carve out an

exception only for him even if earlier such exceptions had been carved

out for other students. The Supreme Court in State of Kerala v.

T.P.Roshana, (1979) 1 SCC 572, had held that litigative persistence

cannot be a ground for grant of relief. In this case the relief granted by

Supreme Court to one candidate was extended to other similarly

situated candidates though they had not filed any litigation seeking

similar relief. The reasoning of the Vice Chancellor in the facts and

circumstances cannot be faulted nor can be termed unreasonable. The

plea of the petitioner that the case of other students has also been

considered by the Vice Chancellor though only the case of the petitioner

had to be considered, in the facts and circumstances is not sustainable.

28. In S.M.Hamoodur Rehman Faridi's case (supra) the University

Ordinance had specifically granted the Vice Chancellor the discretion to

relax the age for admission up to 1 year, whereas in the present case,

clause 16 of the University Ordinance is just a general provision

granting powers to the Vice Chancellor to meet with unforeseen

circumstances. In any case the parameters for granting age relaxation

are different from the logistics required for conducting a supplementary

examination which will be dependent on various factors peculiar to

different universities. If some universities are conducting

supplementary examination for odd semesters along with the even

semesters or final examination, on this ground the respondent cannot

be directed to conduct the supplementary examination for the odd

semesters with the final examination or with the examination of even

semesters.

29. In Khudiram (Supra) the Supreme Court had dealt with the

judicial review of an administrative action which required subjective

satisfaction. It was held that there is nothing like unfettered discretion

immune from judicial reviewability. Relying on the words of Lord

Halsbury in Sharp v. Wakefield it was held:-

" ..... when it is said that something is to be done within the discretion of the authorities... that something is to be done according to the rules of reason and justice, not according to private opinion.. according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular."

The Supreme Court in this matter was dealing with a writ of

habeas corpus under Article 32 of the Constitution challenging the

validity of detention of the petitioner under an order of detention passed

under the provisions of maintenance of internal Security Act. The

detention of the petitioner had been challenged on various grounds

including that the incidents which were alleged against the petitioner

were objectively not sufficient to justify the detention and, therefore, the

order of detention was bad. It was contended in this case that the

subjective satisfaction imposed unreasonable restrictions on the

fundamental right of the petitioner under Article 19 (1) as no

opportunity was given to the petitioner to make an effective

representation because the material which was relied on in the order of

detention was in contravention of Article 22(5) of the Constitution. In

these circumstances, it was held that there is nothing like unfettered

discretion immune from judicial reviewability. It was held that absolute

discretion is a ruthless master and it is more destructive of freedom

than any of man's other inventions especially in a case where personal

liberty is involved.

30. In K.Shekhar (Supra) the Supreme Court had held that the case

of educational institutions, however, highly reputed are not immune

from judicial scrutiny. It was further held that to preserve the high

reputation there is a greater need to avoid even the semblance of

arbitrariness or extraneous considerations colouring the institutions

actions. In this matter the appellant had been given a temporary tenure

appointment in a temporary post of a lecturer in a centre set up by

VIMHANS by Indian Council for Medical Research for a limited period.

The respondent who had challenged the appointment was neither

qualified to apply nor had she applied for the said post at that time. The

appointment was later on modified by a corrigendum declaring the

temporary post to be a permanent one which enabled the petitioner to

revert back to VIMHANS on completion of his tenure appointment. Later

on applications were again invited by VIMHANS and the appellant was

appointed as an Assistant Professor which was challenged by the writ

petitioner. In this context it was held that although ordinarily the

Courts have been reluctant to interfere with the functioning of

educational institutions, but they are not immune from judicial

interference, however, highly reputed they may be. Apparently the ratio

of the case is distinguishable and the petitioner is not entitled for any

relief on the basis of the same or for setting aside of the decision of the

Vice Chancellor dated 24th June, 2009.

31. The petitioner has laid emphasis on certain observations made in

above mentioned decisions. However it must be remembered that a

decision is only an authority for what it actually decides. What is of the

essence in a decision is its ratio and not every observation found

therein nor what logically follows from the various observations made in

it. The ratio of any decision must be understood in the background of

the facts of that case. It has been said long time ago that a case is only

an authority for what it actually decides, and not what logically follows

from it. It is well settled that a little difference in facts or additional

facts may make a lot of difference in the precedential value of a

decision. In Ambica Quarry Works v. State of Gujarat and Ors. AIR

1987 SC 1073a, the Supreme Court observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt.

Ltd. (2003) 2 SC 111 (vide para 59), the Supreme had observed:-

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

The Supreme Court in Bharat Petroleum Corporation Ltd and

Anr. v. N.R.Vairamani and Anr., AIR 2004 SC 778 had also held that a

decision cannot be relied on without considering the factual situation.

In the same judgment the Supreme Court also observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In P.S. Rao v. State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.

In Rafiq v. State, 1980 SCC (Crl) 946 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

32. In Principal, King George's Medical College, Lucknow (Supra)

requirement of the ordinance was relaxed in case of two candidates for

admission to MD course of studies, however, in the case of the

petitioner in the said case it was held to be mandatory. The case relied

on by the petitioner is distinguishable as the case of the petitioner is

not regarding grant of relaxation for admission to the courses but

exercise of discretion to conduct a supplementary examination. The

parameters and logistics for relaxation of requirements for admission

cannot be equated with the exercise of discretion to conduct a

supplementary examination which is based on various factors. Merely

because in previous years the supplementary examination for the odd

semesters was conducted, it is not necessary that the Vice Chancellor is

duty bound to conduct the supplementary examination for the odd

semester in 2009 also. The decision of the Vice Chancellor cannot be

termed discriminatory or arbitrary, as he has considered the

ramification of conducting a supplementary examination in case of

petitioner which will entail conducting supplementary examinations of

other candidates also who has not been able to appear in the various

papers of 9th semester. The Vice Chancellor has categorically noticed

that there are about 10 to 20 students who are similarly placed as the

petitioner and there are cases in other departments also which are

about 50 to 60 cases.

33. This is not the contention of the respondent that the decision of

the respondent is not open to judicial review. It appears that the

contention is that the decision is not to be interfered with unless it is

unreasonable and arbitrary. In order to ascertain whether a decision is

unreasonable or arbitrary it has to be kept in mind that the regulations

and rules are made on the basis of experience of actual day to day

working of the educational institutions. Merely because a particular

decision is not conducive or helpful to a particular student, the same

cannot be termed unreasonable or arbitrary and the Court also should

not exercise the power to interfere with the internal working of an

educational institution imparting education in such circumstances. If

conducting a supplementary examination of one student can lead to

holding of supplementary examination for other students in other

semesters and in other courses, considering various factors and the

logistics and the time schedule which has to be maintained by the

University, if the request of a candidate is declined, it cannot be termed

ex facie unreasonable or arbitrary.

34. The logistics for conducting the examination cannot be equated

with relaxation being granted for age of admission or admitting a

student not having certain qualifications to a course. Though it has not

been spelt out clearly by the Vice Chancellor as to what steps would be

required to conduct the supplementary examination, however, it cannot

be inferred that the Vice Chancellor was not aware of it and has not

taken into consideration this aspect as it has been categorically

stipulated in the impugned order that conducting a special

supplementary examination will have tremendous impact on the

declaration of the scheduled results. The academicians are not like

judges and it cannot be anticipated or expected from them to write

detailed orders dealing with each and every point in detail as the

Judges do. In any case while exercising the power of judicial review this

Court is also not exercising appellate jurisdiction and ascertaining the

validity of an order on the basis of finer technical rules of law.

35. The plea of the learned counsel for the petitioner that in case the

supplementary examinations were conducted till 2007 the

supplementary examination can be conducted in 2009 and should be

conducted is without any rationale. Even though the impugned order

does not spell out in detail as to what were the conditions under which

examination were conducted in the previous years from 2004 up to

2007, cogent reasons have been given as to why special supplementary

examinations cannot be conducted in 2009 by alluring to the various

logistics involved in conducting the supplementary examination. In the

totality of facts and circumstances which are apparent from the order,

the observation of the Vice Chancellor that previous supplementary

examinations for 2004-2007 for some of the candidates were contrary to

Ordinance of the University also cannot be faulted. In any case in the

present facts and circumstances as has been spelt out by the Vice

Chancellor for not conducting the supplementary examinations, it will

be inappropriate for this Court to exercise its jurisdiction under Article

226 of the Constitution of India and direct him to conduct the

supplementary examination.

36. The contention of the petitioner that the decision of the university

to award grace marks vide order 16th January, 2009 thereby allowing

students who had failed in one or more papers to complete the course,

is not for academic excellence and therefore, the committee could not

reject the plea for supplementary examination on the ground of

academic excellence, is not sustainable. If granting grace mark for some

reason is not for sustaining academic excellence does not mean that the

decision of the committee not to conduct supplementary examination

will also be not for sustaining academic excellence. The plea of the

petitioner is illogical and cannot be accepted in the facts and

circumstances.

37. Therefore in the facts and circumstances and for the foregoing

reasons, the decision of the Vice Chancellor not to hold special

supplementary examination for the petitioner for the paper Indirect

Taxes, cannot be faulted and the University cannot be directed to hold

special supplementary examination for the petitioner for the ninth

semester in subject `Indirect Taxes' nor the respondents can be directed

to amend their Ordinance for conducting special supplementary

examination for the petitioner. The writ petition is therefore, dismissed.

Parties are however, left to bear their own costs.

July 20, 2009                                           ANIL KUMAR, J.
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