Ambuj Kumar & Others vs U.O. I. & Others
2009 Latest Caselaw 3702 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No.8846/2009

%                        Date of Decision: 11.09.2009

Ambuj Kumar & Others                                 .... Petitioner
                  Through Mr.Jagat     Singh    Advocate,      Mr.
                          Ghanshyam Singh Advocate and Ambuj
                          Kumar, Petitioner No.1 in person.

                                 Versus

U.O. I. & Others                                        .... Respondent
                        Through Mr.Rattan    Lal,     Advocate    for
                                respondents No.1 and 2.
                                Ms.Poonam, Advocate for respondent
                                No.3.

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?                NO
3.     Whether the judgment should be reported in            NO
       the Digest?


ANIL KUMAR, J.

*

1. After some arguments, Mr.Jagat Singh, learned counsel for the

petitioners sought a pass over and the matter was passed over. After

pass over, Mr.Ghanshyam Singh, Advocate, appeared and argued for

some time and again sought a pass over for appearance of Mr.Jagat

Singh. Though the matter was not to be passed over again, however, it

was passed over as the ensuing examinations for third year are to

commence from 14th September, 2009. Petitioner No.1 who was present

also argued for some time and thereafter, Mr. Ghanshyam Singh

Advocate appeared again and argued the matter.

2. The plea of the petitioners is that though all the petitioners have

failed in five to seven subjects of second year, third and fourth

semester, they should be promoted to third year and allowed to take

examination for the papers in which they have failed, as in 2002 on the

recommendation of Staff Council on the ground of mercy, the Vice

Chancellor was pleased to allow the students who had failed in third

and fourth semester to be registered in the next year. Learned counsel

for the petitioner also relied on the allegation that the students of B.Sc.

(Agriculture Hons.)/B.Sc.(HSC) had also been promoted to next higher

class in 2007 and they had been allowed to appear in their failed

subjects along with subject of higher class.

3. The allegation of the petitioners, failed students seeking

promotion to the next higher class, though failed in five to seven

subjects and to be allowed to clear these subjects in which the they had

failed with the subjects of the higher class, is without any legal basis

and right. The petitioners have failed to disclose as to how they can be

promoted to the next year, third year after failing in five to seven

subjects according to the eligibility conditions.

4. Learned counsel for the respondent No.3 College has drawn the

attention of this Court to the eligibility condition for promotion

pursuant to examination conducted by the college. The relevant

eligibility conditions are as under:-

" The course requirements and examination rules given below are on the basis of the Veterinary Council of India (Minimum Standards of Veterinary Education Degree Course-B. V.Sc & A.H) Regulations, 1993, as published in extraordinary gazette of India Part II Section 3-sub-Section

(i) dated 7.2.1993. Every case has been taken to follow the above mentioned regulations while framing these rules for easy and convenient understanding of students, nevertheless, interpretation of the university/its authorities and VCI shall be final and binding in the mater, in accordance to above mentioned regulations.

The degree course of BVSc and AH shall comprise of course of study spread over complete five academic years (four and a half year course work spread over 9 semesters and compulsory internship of 6 calender months duration).

Each semester will cover 105 days of instructions excluding the time spent for examination.

The distribution of theory marks will be as follows:-

                       Mid-term (internal)      :     50%

                       University (External)    :     50%

                 Explanation:-     Internal evaluation for the course(s)

offered in semester I will be conducted at the end of the semester I and for the course(s) offered in semester II will be conducted at the end of the semester II ends. The marks obtained in the examination would be recorded. After the completion of courses in the I & II semesters, a composite annual theory and practical examination would be conducted by the University.

                       4.    Practical Examinations

                      a)    The final practical examination shall be

conducted by the Board involving one external examiner.

b) 10 marks may be awarded for day-to-day records including record of case sheets for all courses involved.

c) Remaining marks include spotting/experiments/problem solving and case study, and viva-voice to assess the level of competence and concept of the subject covered.

5. Evaluation/examination:-

a) The examination shall be to access whether the student has been able to achieve a level of competence. For academic assessment, evaluation of practical aspects of the curriculum should receive much greater emphasis leading to separate examinations and requiring the student to procure a minimum of 50% marks, in theory as well as in practical, in each such examination.

b) For 50% of the total marks and internal assessment will be conducted in theory and practical separately. For the rest 50% marks, examinations will be conducted by a Board appointed by the University.

c) A composite annual examination for a group of courses/a course in a paper as per a schedule of examinations will be conducted.

d) Overall performance of the student in different examinations including the Annual Board examination by procuring 50% marks in Theory and Practical examinations separately is the criterion of passing or failing in the paper and not the internal examination conducted at the end of each semester. Thus a student is required to secure an aggregate of 50% marks in each of the theory & Practical examinations, separately, to be declared passed in a subject.

e) Failure or promotion at each academic year, beginning from I BVSc and AH programme, shall be decided only on the basis of aggregate marks of internal and annual examinations, separately for theory and practical. Student is required to pass separately in both theory as well as practicals.

f) student(s) failing in only one subject after university examination taking into consideration both internal and external marks shall be awarded „compartment‟.

g) student(s) failing in two or more subjects shall be declared „failed‟ and shall be required to repeat whole of that particular professional programme in all the subjects of that programme along with immediate preceding junior batch as a regular student.

All the requirements for failed students shall be the same as that of regular students.

A student shall be allowed conditional promotion to the next class provided he/she has failed only in one subject. Such student shall be awarded "compartment" and he has to appear in theory and practical, internal and external examinations scheduled as „compartment examination‟ in the respective subject. He/She cannot be promoted to the next BVSc & AH class unless he/she has cleared the due subject in the ensuring compartment examination.

j) failed students would register again for professional programme they failed in. Such students would attend all the courses and appear for the examinations for all papers (both theory and practical) as regular student along with rest of the class.

g) exclusively for those students who are conditionally allowed promotion, the university shall conduct Compartment examination shortly after the declaration of the results of the concerned professional examination. The results of such compartment examination(s) shall be declared soon after the examination is conducted.

h) There is no provision of revaluation of practical and theory examination (Mid-Term (Internal) as well as University (External)."

5. Perusal of the eligibility condition reveals that for a student to be

eligible to be promoted to the next year, he is liable to pass all the

subjects in internal and external examination. For passing a particular

subject, a candidate has to qualify the internal and external

examination and theory and practical separately by securing 50%

minimum marks.

6. Under the eligibility condition, a candidate can be promoted from

second year to third year though he has not qualified all the subjects of

second year comprising of third and fourth semester provided he has

failed only in one subject and in such a case the candidate is placed in

the compartment and promoted to the next year, however, he is

required to qualify the subject in which he has failed in the

compartment examination.

7. Admittedly the petitioners have failed in five to seven subjects.

There is no rule which will entitle the petitioners to be promoted to third

year after failing in five to seven subjects of third and fourth semester of

the second year.

8. Learned counsel for the petitioners has relied on an office order

dated 9th August, 2002 whereby the mercy plea of the some of the

candidates was accepted and though they had failed in third

examination, they were promoted to the next class. The learned counsel

for the petitioners is unable to show any provision under the statue or

the ordinance authorizing the staff counsel or the Vice Chancellor to

exercise such powers. If the students were promoted in 2002 contrary

to rules and regulations to the next higher though they had failed

according to the rules, that does not vest any right with the petitioners

to seek a direction to the authorities to promote them to the next higher

class. Mandamus is a discretionary relief which can be exercised for

enforcement of a right of the petitioners. If the petitioners do not have

any such right as has been claimed by them, they will not be entitled

for any directions from this Court. The fact that some others, who are

similarly situated, had been granted relief which the petitioners are

seeking may be of some relevance, but where in law, a writ petitioner

has not established a right or is not entitled to relief, the fact that a

similarly situated person has been illegally granted relief is not the

ground to direct similar relief to him. Such an act would be enforcing a

negative equality by perpetuation of an illegality which is impermissible.

9. Before a claim based on equality clause is upheld, it must be

established by the petitioner that his claim being just and legal, has

been denied to him, while it has been extended to others and in this

process there has been a discrimination. Article 14 has no application

or justification to legitimise an illegal and illegitimate action. Article 14

proceeds on the premise that a citizen has legal and valid right

enforceable at law and persons having similar right and persons

similarly circumstanced, cannot be denied of the benefit thereof. Such

person cannot be discriminated to deny the same benefit. The rational

relationship and legal back-up are the foundations to invoke the

doctrine of equality in case of persons similarly situated. If some

persons derived benefit by illegality and had escaped from the clutches

of law, similar persons cannot plead, nor the court can countenance

that benefit had from infraction of law and must be allowed to be

retained. Can one illegality be compounded by permitting similar illegal

or illegitimate or ultra vires acts? Answer is obviously no.

10. In Yadu Nandan Garg vs State of Rajasthan, (1996) 1 SCC 334, it

was contended that one of the persons whose land was acquired, had

the benefit of exemption from the acquisition; writ petition was filed

seeking similar benefit. When it was contended that it was violative of

Article 14, this Court in para 5 had held that: (SCC p. 336)

"the wrong exemption under wrong action taken by the authorities will not clothe others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination."

11. In Coromandel Fertilizers Ltd. v. Union of India, 1984 Supp SCC

457, it was held in para 13, that wrong decision in favour of any party

does not entitle any other party to claim the benefit on the basis of the

wrong decision. In that case, one of the items was excluded from the

schedule, by wrong decision, from its purview. It was contended that

authorities could not deny benefit to the appellant, since he stood on

the same footing with the excluded company. Article 14, therefore, was

pressed into service. This Court had held that even if the grievance of

the appellant was well founded, it did not entitle the appellant to claim

the benefit of the notification. A wrong decision in favour of any

particular party does not entitle another party to claim the benefit on

the basis of a wrong decision. Therefore, the claim for exemption on the

anvil of Article 14 was rejected.

12. In the circumstances, there is no merit in the pleas and

contentions seeking promotion to the third years though they have

failed in third and fourth semester of the second year and there is no

provision to promote them to the next year. The writ petition is

misconceived and is an abuse of process of law and it is, therefore,

dismissed. Parties are, however, left to bear their own costs.

September 11, 2009                                      ANIL KUMAR, J.
'Dev'