Tushaar Kuthiala vs University Of Delhi & Anr
2010 Latest Caselaw 5337 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 24th November, 2010.

+                           W.P.(C) No.7165/2010


%        TUSHAAR KUTHIALA                                 ..... PETITIONER
                     Through:             Mr. Sanjay Jain & Ms. Ruchi Jain,
                                          Advocates

                                      Versus

         UNIVERSITY OF DELHI & ANR           ..... RESPONDENTS
                      Through: Ms. Maninder Acharya, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may             No.
         be allowed to see the judgment?

2.       To be referred to the reporter or not?            No.

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner was a student of B.A.(Hons.) Mathematics Course in

St. Stephen's College affiliated to the respondent University of Delhi during

the years 2006-09. The petitioner while still awaiting the result of his final

year examination, applied for and was granted admission to the Asian

College of Journalism, Chennai. The eligibility for admission to the said

course was a Degree in Graduation. However the petitioner failed the final

year examination. It is the case of the petitioner that the Asian College of

Journalism, Chennai, impressed with the performance of the petitioner,

nevertheless allowed him to continue with the course on the condition that

the Postgraduate Diploma in Journalism would be awarded to him only after

he had acquired his Graduation Degree. The petitioner thus while

continuing with the journalism course enrolled himself as an ex-student of

Delhi University and took the examination of final year of B.A. (Hons.)

Mathematics again in April/May 2010. The petitioner could however still

manage a percentage of 37.6% only while that required for a Degree in B.A.

(Hons.) Mathematics was 40%.

2. The petitioner applied to the respondent University of Delhi for

awarding him a Degree in B.A. (Pass)/B.Com. (Pass) without Division

instead of the Degree in B.A.(Hons.) Mathematics, the course which he had

pursued. Reliance was placed on Ordinance IX.3(1) of the University in this

regard which permitted candidates of B.A.(Hons.)/B.Com. (Hons.) Part-III

examinations, who have passed in the Subsidiary subjects but have failed in

the main subject but have secured in the main subject not less than 33%

marks in the aggregate of Part-I, Part-II & Part-III, to be granted

B.A.(Pass)/B.Com.(Pass) Degree without Division. It is the case of the

petitioner that a Degree of B.A.(Pass) /B.Com.(Pass) without Division

would entitle him to pursue the Journalism Course.

3. The respondent University however declined the aforesaid request of

the petitioner on the ground that Ordinance IX.3(1) was applicable only to

the students of old course and not to the students of restructured course of

B.A.(Hons.)/B.Com.(Hons.) introduced with effect from the year 2005.

Challenging the said decision of the respondent University, the present writ

petition has been filed.

4. Notice of the writ petition was issued. The respondent University has

filed a counter affidavit. The counsels have been heard.

5. The senior counsel for the petitioner has contended that the Ordinance

IX.3(1) remains unaffected by restructuring of the B.A.(Hons.) /

B.Com.(Hons.) Course. It is contended that the course, as far as the main

subjects are concerned has not been restructured and the restructuring is

only qua the Subsidiary Subjects which stand substituted by Concurrent

Courses. Attention is invited to the Minutes of the Meeting dated 25 th

October, 2004 of the Academic Council of the respondent University

regarding restructuring of B.A.(Hons.) Programmes wherefrom it is pointed

out that the course content of the main discipline remained as it existed and

the examination scheme and marks for internal assessment continued as per

the existing Ordinances. It is contended that thus the examination scheme

remains unaltered. Attention is also invited to the index of "Amendment to

Ordinances and Appendices to Ordinances" published by the respondent

University of Delhi which does not record any amendment to the Ordinance

IX. It is further argued that though the Academic Council has while

approving the restructuring aforesaid resolved that the consequential

amendments/additions/modifications, if any to the relevant Ordinances, be

carried out but no such amendment or modification has been made to

Ordinance IX (supra). It is thus argued that the Ordinance IX.3(1) entitling

issuance of a B.A.(Pass) Degree remains unaltered notwithstanding the

change and the petitioner is entitled to a Pass Course Degree without

Division. Reliance is also placed on State of M.P. Vs. Kedia Leather &

Liquor Ltd. (2003) 7 SCC 389 to contend that there is presumption against a

repeal by implication. Reference is also made to State of Tripura Vs.

Roopchand Das (2003) 1 SCC 421 to contend that a beneficial provision as

Ordinance IX is contended to be, is to be given full effect and to be

construed purposely. Attention is also invited to Ordinance X-C

empowering the Academic Council, in exceptional cases to grant exemption

from the operation of any of the Ordinances. It is thus contended that even

if Ordinance IX.3(1) is to be held to be not available, the Academic Council

of the respondent University was empowered to nevertheless direct issuance

of a Pass Course Degree without Division to the petitioner on the principles

contained in the Ordinance IX.3(1). It is argued that the respondent

University has failed to exercise the said power, even though a case therefor

was made out.

6. The counsel for the respondent University has fairly stated that the

University inspite of having sympathetically considered the case of the

petitioner, cannot apply Ordinance IX.3(1) to the students of restructured

B.A.(Hons.)/B.Com.(Hons.) Courses admitted from the year 2005 onwards.

7. In my opinion, the aforesaid stand of the respondent University

cannot be interfered with. The settled legal principle is that the Courts

generally do not interfere with the decision of educational bodies comprising

of experts unless their decision is found to be contrary to the Rules &

Regulations by which they are governed or so arbitrary or perverse as to

shock the conscience of the Courts. No such case is made out in the present

case. The applicability of Ordinance IX demands the students to have

passed in the subsidiary papers and to have secured not less than 33% marks

in the main subject in all the three years of graduation. Once there are no

subsidiary papers upon restructuring of the Hons. Courses, the said

Ordinance would not be attracted. The contention that the Concurrent

Courses introduced by way of restructuring in lieu of the subsidiary papers,

should be read as subsidiary papers in the Ordinance IX.3(1), cannot be

accepted. This Court on its own cannot amend the Ordinance in the manner

aforesaid. Similarly, the applicability of Ordinance cannot be guided by the

index/list of contents of Amended Ordinances. Even if the Academic

Council of the respondent University has, pursuant to restructuring aforesaid

failed to carry out the amendment to Ordinance IX, the only relief which the

petitioner could possibly have claimed was of a direction to carry out the

consequential amendment but which has not been claimed. Without the

Ordinance IX.3(1) having been amended, I am unable to hold the petitioner

entitled to relief thereunder.

8. However to my mind, that is not the end of the matter. The petitioner

got admitted to the prestigious St. Stephen's College for the reason of

having secured more than 90% marks in his Class-XII examination. Though

the petitioner did his three years of graduation in the subject of Mathematics

but has not opted to pursue post-graduation courses/diplomas in the subject

of Mathematics. The petitioner not finding a flair in the subject of

Mathematics and having found a flair, during his graduation years, in the

field of debating & publishing, decided to and has pursued his future/career

in the field of Journalism. The petitioner has pleaded with the support of

documents that he was the Secretary and President of the Debating Society

of the College in the second and third year of graduation and represented the

College all over the country in prestigious debates and also organized the

first ever University Debating League and earned laurels for himself and the

College. The petitioner also claims to have started, along with his co-

students, a fortnightly publication called S.O.U.L. The petitioner has filed a

few articles published in the said magazine.

9. The question which arises is, should the petitioner be not permitted to

pursue his career/future in the field of Journalism and which would be the

result of dismissal of this writ petition. The petitioner has filed along with

the writ petition a Certificate of the Asian College of Journalism whereby he

has been permitted to complete his third term from January to April, 2011

upon furnishing his Bachelors Degree Certificate by 15th December, 2010.

Unless the petitioner is granted the relief, the petitioner not only would be

required to again take the B.A.(Hons.) third year examinations (if entitled

to) but the two terms of Post-Graduate Diploma in Journalism already

pursued by him, shall also be wasted.

10. I would not have been inclined to grant any relief to the petitioner,

had the petitioner been pursuing his career/future in the subject of

Mathematics only inasmuch as the petitioner has admittedly not cleared the

test of having acquired proficiency in Mathematics. However the position

here is different. I do not see any reason for depriving the petitioner of a

simplicitor Graduation Degree without Division, required him to pursue his

career.

11. The petitioner now appears to have ultimately found his vocation in

life. Impediment should not be created in the petitioner pursuing the same.

I fear that denying the Graduation Degree to the petitioner at this stage may

completely disillusion the petitioner and may derail his career and future and

lead to frustration and ruination and render him a vagabond. I have in

judgment dated 14th September, 2010 in W.P.(C) No.1687/2008 titled

Akhlaque Ahmad Khan Vs. Jamia Millia Islamia held that a student in the

hands of Principal/Head is like a child in the hands of a parent and a parent

would never want the career of a child to be completely destroyed.

Shakespeare in Merchant of Venice: "Justice should be tempered with

mercy" can be quoted with benefit. Even in the field of punishment, the

view of modern penologists is for it to be rehabilitative and not retributory.

The state in which the petitioner today is, has to be seen in perspective of

youth of the petitioner.

12. The majesty of law is thus in allowing this writ petition. Rather, in

holding back the petitioner in his career, the respondent University and the

Court may nip the enthusiasm and the lure for learning of the petitioner and

sear him for life. The duty of the respondent University as of the Court is to

nurture the career and not damage it. The respondent University has also

not shown anything, making the principle enshrined in Ordinance IX

inconsistent with the restructured Hons. Programme. Once it is found that

the respondent University itself had introduced the principle of granting the

Pass Course Degree without Division in lieu of Hons. Degree, even though

the said Ordinance is not strictly applicable, the principle will remain

applicable. The hyper technicalities cannot be allowed to come in the way

of granting the relief.

13. I have during the hearing also considered remanding the matter back

to the respondent University for decision to be taken by the Academic

Council under Ordinance X-C (supra). However the counsel for the

respondent University fairly stated that convening a meeting of the

Academic Council which consists of a large number of members, is a long

drawn process and cannot be done at short notice. Here, the College of

Journalism has desired the Graduation Degree to be produced by the

petitioner by 15th December, 2010. Moreover, the respondent University

had an option to, on the representation of the petitioner made within time,

place the matter before the Academic Council but which was not done.

14. In the circumstances this Court directs and commands the respondent

University to, in application of Ordinance X-C issue a Pass Course Degree

without Division to the petitioner within ten days hereof.

The writ petition is accordingly allowed and disposed of with no order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 24th November, 2010 bs..