Siddharth Tomar & Ors. vs Guru Gobind Singh Indraprastha ...
2010 Latest Caselaw 4265 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 WP(C) NO.5744/2010

%                                        Date of decision: 14th September, 2010

SIDDHARTH TOMAR & ORS.                                 ..... PETITIONERS
                Through:                    Ms. Geeta Luthra, Sr. Advocate
                                            with Mr. Sanjeev Sahay & Mr.
                                            Abhishek Agrawal, Advocates

                                        Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY                         ..... RESPONDENT
                Through: Mr. Mukul Talwar & Mr.
                         Sradhananda Mohapatra, Advoates

                                        AND

+                                 WP(C) NO.5934/2010

VIRAAT BAINS & ORS.                                     ..... PETITIONERS
                 Through:                   Mr. R.K. Singh, Advocate

                                        Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY                           ..... RESPONDENT
                 Through: Mr. Mukul Talwar & Mr.
                           Sradhananda Mohapatra, Advoates
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment?                yes

2.      To be referred to the reporter or not?               yes

3.      Whether the judgment should be reported              yes
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioners (107 in WP(C) No.5744/2010 & 4 in WP(C)

No.5934/2010) in both these petitions are students of Colleges / Institutes

belonging to or affiliated to the respondent University. All of them were

admitted in the academic year 2009-10 and have completed first year of their

respective courses. All of them have been denied promotion from the first to

the second year of their respective courses owing to the amendment in the

Ordinances 10, 11, 21, 25, 27 & 29 of the respondent University relating to

"Conduct & Evaluation of Examinations". The said amendment was approved

by the Board of Management of the respondent University in its 41st meeting

held on 29th June, 2009 and published in the Delhi Gazette of 20 th October,

2009. The counsel for the respondent University admits that but for the said

amendment, the petitioners were / are entitled to be so promoted to the second

year. The petitioners impugn the said amendment as illegal, arbitrary,

unconstitutional and contrary to the Ordinances that are sought to be amended

thereby. The petitioners alternatively also contend that the said amendment,

even if valid cannot be applied to them and such application of the amendment

amounts to giving retrospective effect to the amendment.

2. The petitions came up first before this Court on 26th August, 2010 and

1st September, 2010 respectively when notice of the petitions were issued. The

counsel for the respondent University appearing on advance notice on 26 th

August, 2010 stated that in case the petitions are allowed, the respondent

University shall accept the fee from the petitioners. It was also informed that

the class tests for internal assessment and which ultimately have a bearing on

the final marks of the next year to which petitioners are seeking promotion are

scheduled to be held in various Colleges / Institutes from 13th September, 2010

to 18th September, 2010. In view of the said urgency and not finding any

factual controversy requiring counter affidavit of the respondent University, the

counsels were heard.

3. The crux of the amendment to the Ordinances is that it requires students

to obtain minimum 50% of the total credits for the ensuing academic year from

which promotion to the next academic year is sought. Prior to the said

amendment, there was no such requirement and the only limitation was with

respect to maximum number of attempts in which the exam could be cleared.

The respondent University refused to promote the petitioners for the reason of

having not obtained 50% of the total credits in the first year. The senior

counsel for the petitioners in WP(C) No.5744/2010 has contended that some of

the petitioners secure in the knowledge that they were not required to secure

50% of the credits, did not even take the examination. It is also mentioned in

the petition in WP(C) No.5744/2010 that besides the 107 petitioners,

approximately 3500 students of the respondent University have been refused

promotion owing to the said amendment.

4. The senior counsel confined the submissions to the applicability of the

amendment to the Ordinances qua the petitioners. It was stated that if the

petitioners succeed in the same, they do not feel the need to impugn the validity

/ vires of the amendment. I am also of the opinion that the Court should, if

possible, refrain from interfering with such decision of the experts in the field

of education. If the said experts have resolved that the students, to be entitled

to promotion must obtain 50% of the credits, the Court should be slow in

striking down the said criteria. In any case the question of vires of the

amendment to the Ordinances shall have to be considered by the Division

Bench. The counsel for the respondent University also informs that the vires of

the said amendment were challenged by some other students by filing WP(C)

No.4839/2010 which was dismissed as withdrawn on 21st July, 2010 after the

counsel for the petitioners therein failed to satisfy the Court. I will therefore

proceed to consider whether the amendment aforesaid can be applied to the

petitioners and whether such application amounts to giving retrospective effect

thereto and whether the same is permissible.

5. The contention of the petitioners is that the prospectus for admissions in

the academic year 2009-10 in which the petitioners were admitted to the

respondent University was published in February, 2009 i.e. much prior to the

said amendment; naturally the prospectus pursuant to which the petitioners

sought admission and were admitted to the respondent University did not

inform that the students so admitted, for promotion from the first to the second

year would be required to obtain 50% credits. In view of the admission of the

respondent University that but for the said amendment the petitioners would

have been so promoted, need is not felt to refer to the provisions of the

prospectus for admission to the academic year 2009-10. It may however be

mentioned that in the prospectus published for admissions in the academic year

2010-11 the applicants are informed of the requirement to obtain 50% credits

for promotion from the first to the second year.

6. The petitioners contend that the respondent University uploaded the

aforesaid amendment on its website first only on 11th November, 2009. They

contend that prior thereto the class tests for internal assessment and which

marks as aforesaid have a bearing on the final result, had been conducted in the

months of September & October, 2009. It is urged that had the petitioners

known that they were required to obtain minimum 50% credits for promotion to

the next year, they would have taken the said class tests seriously. The

argument is that since the petitioners knew that they had no compulsion to clear

the exams in the first attempt and were secure in the knowledge that they would

be promoted to the next year only with the obligation to clear the examinations

of the first year in the maximum number of attempts provided therefor, the

petitioners either did not put in their best in the exams or some of them even

chose to skip the exams.

7. It is also urged that the last date for submission of applications for

admission in the academic year 2009-10 was 6th April, 2009, the admissions /

entrance tests were held in June, 2009 i.e. of before the approval of the

amendment aforesaid in the meeting of the Board of Management of the

respondent University held on 29th June, 2009, though the counselling for

admission took place in July/August, 2009 and the semester began from 3rd

August, 2009. It is also informed that in some of the Institutes / courses the

marks for internal assessment pursuant to the tests in September/October, 2009

were as high as 40% of the total marks.

8. The counsel for the respondent University contends that the amendment

aforesaid came into force on 29th June, 2009 when the same was approved by

the Board of Management of the respondent University. Reference in this

regard is also made to the notification dated 20 th October, 2009 at the foot

whereof also, it is mentioned that the amendment has come into force with

effect from the date of approval by the Board of Management. Per contra, the

senior counsel for the petitioners contends that the amendment aforesaid would

come into force only with effect from 11th November, 2009 when it was

uploaded on the website and prior whereto no one had knowledge of the same.

It is further contended that even thereafter there was much confusion as to

whether the amendment would apply to the first year students admitted in the

academic year 2009 or not. It is contended that though several representations

in this regard were made but the same remained un-replied. It is pleaded that

the petitioners learnt of the application of the said amendment to themselves

only when on 30th July, 2010 the tentative promotion list was declared by the

respondent University and the name of the petitioners did not figure in the

same.

9. Another fact which has been admitted is that though the respondent

University has applied the aforesaid amendment to the students admitted to the

first year in the academic year 2009 but has not applied the said amendment to

the students admitted in the year 2008 or earlier. The reason thereof was

enquired from the counsel for the respondent University. The counsel could

only state that the same was on the basis of legal opinion and perhaps for the

reason of those admitted in 2008 or earlier as it is having lesser time to clear the

exams of various years / semester.

10. The respondent University has been established vide Guru Gobind Singh

Indraprastha University Act, 1998 ; vide Section 18(1) of the Act, the Board of

Management is the principal executive body of the University. Section 26(2)

empowers the Board of Management to from time to time make new or

additional Statutes or amend or repeal the first Statutes made under Section

26(1) of the Act. We are however concerned with Ordinances. Under Section

27(2), first Ordinances are to be made by the Vice-Chancellor with the prior

approval of the Government and the Board of Management has been

empowered to, from time to time amend, repeal or add to the said Ordinances

in such manner as may be prescribed. Section 42(1) provides for the

publication in the Official Gazette of every Statute and Ordinance made under

the Act. It also provides for laying of every Statute and Ordinance after it is

made, before the House of the Legislative Assembly of Delhi while it is in

session for a total period of 30 days.

11. The question which arises for consideration is, when did the aforesaid

amendment come into force, whether on 29th June, 2009 when the same was

approved by the Board of Management or on 20th October, 2009 when the same

was notified in the Gazette or on 11th November, 2009 when the same was

uploaded on the website of the respondent University. If the amendment came

into force on 29th June, 2009, it is in force from before the petitioners were

admitted to the University and then their argument of its retrospective operation

will disappear. However, if it came into force on 20 th October, 2009, by then

one class test had been held. If it came into force on 11th November, 2009, by

then both the class tests had been held.

12. The counsel for the respondent University has contended that even if the

amendment had come into force upon notification in the Official Gazette on

20th October, 2009, only class tests of not more than 5 to 10% of weightage in

the aggregate marks had been held till then and application thereof to the

petitioners would not tantamount to applying the same retrospectively. It is

contended that the respondent University had informed all its Colleges /

affiliate Institutes of the amendment and if the said Colleges / affiliate Institutes

failed to bring it to the notice of the students, the students have the Colleges /

affiliate Institutes only to blame and cannot aver that the amendment is being

retrospectively applied merely because they came to know of it later. It is

contended that merely because the class tests of 10 marks were held before the

notification of the amendment in the Gazette would not so prejudice the

petitioners as to persuade this Court to hold in favour of the petitioners.

13. The senior counsel for the petitioners has relied on:

(i) Vinayaka Mission's Kirupananda Variyar Medical College Vs.

The Tamil Nadu Dr. MGR Medical University

MANU/TN/0601/2005, where a Single Judge of the Madras High

Court concluded that the amendment approved by the Academic

Board on 16th December, 2003 could not be applied to students

admitted in May-June, 2003.

(ii) Puja Lal Vs. University of Delhi MANU/DE/0608/1997, where a

Single Judge of this Court held that where the Bulletin for

admission is silent about minimum marks, the same could not be

applied to the student.

(iii) Kanishka Aggarwal Vs. University of Delhi

MANU/DE/0018/1992, but which is on the aspect of estoppel and

which is not found relevant for the present case.

(iv) Amar Vasudeva Kamath Vs. Registrar, University of Bombay

MANU/MH/0568/1990 holding in the context of the Bombay

University Act, 1974 that the Ordinances cannot be retrospective.

The facts of this case are quite similar to the controversy in these

petitions.

(v) Sudhir Vs. The State of Maharashtra, through its Secretary,

Higher and Technical Education Deptt. MANU/MH/0672/2010

where a Division Bench of the Bombay High Court held that

subsequent insertions of qualification after advertisements of

eligibility were published and after the cut-off date for applying,

could be only prospective.

(vi) Hukam Chand Vs. Union of India (1973) 1 SCR 896 laying down

that in the absence of express or implied power to make rules with

retrospective effect, no such effect could be given. It was also held

that the fact that the rules have to be laid before each House of

Parliament would not confer validity, if not in conformity with the

Act.

14. The counsel for the respondent University invites attention to:

(i) Vishnu Dutt Vyas Vs. State of Rajasthan AIR 2001 Raj 162

where a Division Bench of the Rajasthan High Court held that in

academic matters it is always permissible to change the conditions

unilaterally and no one can claim a right or privilege to be

governed under the old rules if they are replaced by new rules.

(ii) The Vidhyarthi Sanrakshan Samiti Vs. University of Jodhpur

1990 (2) WLN 329 where another Single Judge of the Rajasthan

High Court decided on the basis of law laid down in Punjab

University Vs. Subash Chander AIR 1984 SC 1415 : the

Regulation cannot be said to have retrospective operation merely

because though introduced in 1970, it was applied to a candidate

who appeared for final examination in 1974 after he had joined the

course earlier in 1965 - no promise was made or could be deemed

to have been made to him at the time of admission in 1965 that

there will be no alteration of the Rule or Regulation in regard to

percentage of marks required for passing any examination and that

Rules in force at the time of admission would continue to be

applied until he finished the whole course.

15. The senior counsel for the petitioners in rejoinder also referred to

Collector of Central Excise Vs. New Tobacco Co. MANU/SC/0020/1998 but

which I find was expressly overruled in Union of India Vs. Ganesh Das

Bhojraj (mentioned below).

16. In State of Maharashtra Vs. Mayer Hans George AIR 1965 SC 722, a

modification effected by the RBI in exercise of powers under the Foreign

Exchange Regulation Act, 1947 was notified only on 24th November, 1962.

The Supreme Court held that the effective date was the date of publication of

the notification in the Official Gazette. It was further held that publication in

the official Gazette is the ordinary method of bringing a rule or subordinate

legislation to the notice of the persons concerned.

17. The Supreme Court in I.T.C. Bhadrachalam Paperboards Vs. Mandal

Revenue Officer, A.P. (1996) 6 SCC 634 held that the object of publication in

the Gazette is not merely to give information to the public; Official Gazette, as

the very name indicates, is an official document - it is published under the

authority of the Government. Publication of an order or rule in the Gazette is

the official confirmation of making of such an order or rule. The version as

printed in the Gazette is final. If a question arises when was a particular order

or rule made, it is the date of Gazette publication that is relevant and not the

date of publication in a newspaper or in the media. The publication in the

Official Gazette was held to be the official irrefutable affirmation of the order

or rule having been made on a particular date. The same view was recently

reiterated in T. Narasimhulu Vs. State of A.P. MANU/SC/0374/2010. Also,

recently in Rajendra Agricultural University Vs. Ashok Kumar Prasad

AIR 2010 SC 259, in a case entailing similar facts as herein, the Supreme Court

held that it is not possible to accept the contention that the Statute contained in

the notification dated 4th September, 1991 (in that case) came into effect or

became enforceable even in the absence of publication in the Official Gazette.

18. In M/s. Pankaj Jain Agencies Vs. Union of India AIR 1995 SC 360, the

argument that notwithstanding publication in the official Gazette, the

notification should be held to have become effective only on the date made

available to the persons affected thereby was negatived. Reliance was placed

inter alia on B.K. Srinivasan Vs. State of Karnataka AIR 1987 SC 1059 where

it was held that once the prescribed mode of publication is complied with, it

was immaterial whether the notification was actually made known to the

persons affected by it. The judgment in M/s. Pankaj Jain Agencies (supra) was

approved as the correct exposition of law on the subject in Union of India Vs.

M/s. Ganesh Das Bhojraj AIR 2000 SC 1102.

19. The amendment to the University ordinances, in the present case cannot

be said to have come into force prior to the notification thereof in the Delhi

Gazette, notwithstanding the same providing that it shall come into force from

the date of approval by the Board of Management. The Act makes the approval

of the amendment by the Board of Management subject to modification by the

Legislative Assembly of Delhi. It is only when it has gone through the said

procedure, is it required to be notified in the Official Gazette. Prior to the said

notification, it cannot be said that the amendment would come into force.

When a procedure is prescribed for achieving a particular objective, till such

procedure is completed, it cannot be said that the objective has been achieved.

The amendment therefore came into force only on 20 th October, 2009. Once the

mode of publication is prescribed, the petitioners cannot be heard to contend

that they were not aware or became aware only on uploading on website on 11th

November, 2009.

20. The next question which arises is even if the aforesaid amendment has

come into force on 20th October, 2009, whether the same can be applied to the

petitioners. The amendment is concerned with promotion to the next academic

year. The question of promotion of the petitioners came up only as aforesaid in

July, 2010 i.e. after the coming into force of the amendment. However, the said

promotion was dependent upon the examinations and of which the first one

even if for 10% of the marks was held in September, 2010 i.e. prior to the

coming into force of the amendment. In my view that factor alone is enough.

The rules of the game cannot be changed after the game has commenced. The

the students of the first year, when the said class tests were being held had no

inkling of the change / amendment underway. There is justification in the

contention of the petitioners that at the time when the said class tests were held

they were not aware that they were required to obtain 50% credits. They were

thus entitled either not to take the said class tests or not to take the same with

best efforts in the belief that their poor performance therein would not come in

the way of their being promoted. Thus, I find merit in the contentions of the

petitioners that the amendment aforesaid cannot be applied to them.

21. The Supreme Court in Sri Vijayalakshmi Rice Mills, New Contractors Co.

Vs. State of Andhra Pradesh AIR 1976 SC 1471, held that it is a well

recognized rule of interpretation that in the absence of express words or

appropriate language from which retrospectivity may be inferred, a notification

takes effect from the date it is issued and not from any prior date. It was further

observed that the principle is also well settled that statutes should not be

construed so as to create new disabilities or obligations or impose new duties in

respect of transaction which were complete at the time the amending Act came

into force. I also find that the Act aforesaid does not empower the Board of

Management to issue an Ordinance with retrospective effect. The Board of

Management on 29th June, 2009 while approving the amendment aforesaid

knew that notwithstanding their approval, the Ordinances would have to be laid

before the Legislative Assembly of Delhi and required to be published in the

Official Gazette. Thus merely by observing that the same shall come into force

with effect from 29th June, 2009, they could not make it effective from the said

date. For instance, there could have been delay in the subsequent steps as

aforesaid. The said delay could very well have been till after the holding of the

exams for the first year. In such situation, could the respondent University aver

that it would still not promote the students from the first year to the second year

because the Board of Management had observed that the amendment would

come into force from the date of their approval, notwithstanding the time

consumed in subsequent steps. The counsel for the respondent University has

urged that Section 42(1) itself provides that any modification or annulment by

the Legislative Assembly shall not affect the validity of anything previously

done under the Ordinance. From the same, it is argued that the Ordinance thus

comes into force even prior thereto. However, the said contention has no force

since the requirement of publication in the Official Gazette remains. Without

such publication which is mandatory, it could not have come into force.

22. I also do not find any justification whatsoever for the respondent

University applying the amendment aforesaid to the students admitted in the

year 2009 and not applying it to those admitted in the earlier years. There is no

basis for such classification.

23. The petition therefore succeeds. The amendment to the ordinances 10,

11, 21, 25, 27 & 29 notified on 20th October, 2009 is held to be inapplicable to

the petitioners for promotion from first to second year. I may however clarify

that the amendment has been held inapplicable only for the reason of the

examination having begun. Else, as held in Punjab University Vs. Subhash

Chander (supra), the said amendment shall apply to all future examinations /

promotion exams whereof are to be held / commenced after 20th October, 2009

irrespective of the year of admission. It being the admitted position but for the

said amendment, the petitioners are entitled to be promoted, the respondent

University is directed to either itself or by instructing to its Colleges / affiliate

Institutes ensure that the petitioners are promoted to the second year of their

respective courses, as also undertaken by the respondent University in order

dated 26th August, 2010 aforesaid.

24. During the hearing, it was informed that the session for the second year

has already commenced in August, 2010. The first class tests were also

scheduled from 13th September, 2010; owing to the University having wrongly

applied the amendment to the petitioners, the petitioners have till now not been

permitted to attend the classes of the second year and thus have not been able to

take the class tests scheduled from 13th September, 2010 also. The petitioners

having been prevented from attending classes would have issues of attendance

also. For the reason aforesaid, while allowing the petitions following directions

are issued:

(i) The respondent University while computing the attendance of the

petitioners shall not take into consideration the classes held till

three days hereafter. The petitioners are expected to join and start

attending their classes after three days.

(ii) The petitioners shall have an option, if ready to take the class tests

scheduled from 13th September, 2010, to take such of the class

tests as are remaining. Else the respondent University is directed

to ensure that after a reasonable interval of time an opportunity is

given to the petitioners to take class tests which they have missed

out. However, if any of the petitioners chooses to take the class

tests now, he / she shall not be entitled to take the same again to

improve his / her marks therein.

25. The petition is disposed of. No order as to costs.

Dasti under the signature of the Court Master.

RAJIV SAHAI ENDLAW (JUDGE) 14th September, 2010 gsr