Vipul Bhole & Anr. vs The School Of Planning & ...
2010 Latest Caselaw 4395 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 20th September, 2010.

+                           W.P.(C) No.3118/2010

%

VIPUL BHOLE & ANR.                                             ..... Petitioners
                 Through:                 Mr. Ashok Gurnani, Advocate.

                                      Versus

THE SCHOOL OF PLANNING & ARCHITECTURE
& ORS.                                        ..... Respondents
                 Through: Mr. R.K. Singh, Advocate for R-
                           1/SPA.
                           Mr. Mayank Manish for Mr. Amitesh
                           Kumar, Advocate for R-5/UGC.
                           Mr. A.K. Bhardwaj with Mr. M.P.
                           Singh & Mr. Jai Shri Raj, Advocates
                           for R-6/UOI.
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 two petitioners were admitted to the respondent no.1 School of

Planning & Architecture (SPA) in the year 2003 in the Bachelor of

Architecture course. The duration of the course is of five years. Ordinarily

the petitioners should have completed the course in the year 2008. However

the petitioners in or about May, 2010 filed this petition for direction to the

respondent SPA to amend the result of the Academic Session 2008-2009 by

which the petitioners were failed in the 3rd year and denied promotion to the

4th year. The petitioners also claim the relief of declaration that they have

passed in the 3rd year and direction for their promotion to the 4th year.

2. The result of the Academic Session 2008-2009 was declared on 14th

July, 2009. It is not disputed that the petitioners having failed in the 3 rd year,

the respondent SPA asked them to repeat the 3 rd year. The petitioners

however did not report for repeating the classes of the 3 rd year. The

petitioners challenged the result of their 3rd year examination as aforesaid by

filing this petition in May, 2010. According to the respondent SPA, the

Academic Session for 3rd year course which the petitioners were directed to

repeat was over by May, 2010. The respondent SPA has as such raised a

preliminary objection of the petition being barred by laches, waiver and

acquiescence.

3. The respondent SPA has raised another preliminary objection. It is

contended that a student is required to pass the 4th year examination within

seven years of joining the course and the final examination within three

years of passing the 4th year examination. It is contended that the petitioners

without passing the 4th year have crossed seven years since the date of

admission and cannot now be permitted to continue with the course. It is

informed that the said Rule has been upheld in judgment dated 11 th July,

2007 of a Single Judge of this Court in W.P.(C) No.3273/2007 titled Ms.

Sudeepti Chandra Vs. Director, School of Planning & Architecture and

which was affirmed in the judgment dated 13th September, 2007 of the

Division Bench in LPA No.1205/2007.

4. The counsel for the petitioner has sought to meet the aforesaid

preliminary objections by contending that the petitioners after declaration of

their result on 14th July, 2009 (and which result is impugned in this petition)

were making representations and gathering information on the basis whereof

the present petition has been filed, through the medium of Right to

Information Act. With respect to the other preliminary objection it is

contended that if the petitioners succeed in the petition and the result failing

them is set aside, the bar aforesaid would not come in their way.

5. I am not satisfied with the explanation by the petitioners of the delay

in preferring the petition. The petitioners herein inspite of being on the verge

of being barred from pursuing the course, did not show any promptitude in

challenging the result declared on 14th July, 2009. It is not as if the

petitioners without prejudice to their rights to challenge the said result,

joined the classes of the 3rd year to repeat the said semester. On the contrary,

the petitioners, save for the representations and RTI queries stated to have

been made, in so far as the respondent SPA was concerned abandoned the

course. The said abandonment was for a full academic session. Such laxity

in educational matters (which courts also endeavour to give priority to) is

not understandable. The only inference is that the petitioners had abandoned

the course and the petition was filed as an afterthought. In my view, the

petition is liable to be dismissed on this ground alone. Nothing prevented the

petitioners from repeating the 3rd year classes as advised, if desirous of

saving themselves from the bar under the Rules for pursuing the course. The

information sought to be gathered through the medium of RTI is also not

such which prevented the petitioners from filing the petition earlier. Rather

the petitioners have in the petition made vague allegations against the

respondent SPA and its faculty.

6. However, the matter being of the career of the students and even

otherwise for complete adjudication, it is deemed expedient to deal with the

contentions on merits also.

7. The petitioners seek to find flaw in the examination in which they

were failed by contending that the said examination was held in

contravention of the Council of Architecture (Minimum Standards of

Architectural Education) Regulations, 1983. It is contended that as per the

said Regulations the weightage for external assessment and internal

assessment has to be 50:50 while the respondent SPA gave weightage of

67% to internal assessment and 33% to external assessment. It is contended

that the faculty of the respondent SPA is biased against the petitioners which

has resulted in very low marks being given for internal assessment and

which is evident from the comparatively higher marks received by the

petitioners in external assessment.

8. I have enquired from the counsel for the petitioners as to whether the

particulars as required to be given for taking a plea of bias have been given

in the petition in as much as I was unable to find any names of the faculty

members biased against the petitioners or the reasons therefor. The counsel

for the petitioners has fairly stated that such particulars have nowhere been

given. His contention however is that bias in the present case is evident from

the contrast in the marks given for the same work in internal assessment and

in external assessment.

9. The petitioners have along with the petition filed the New Scheme for

Bachelor‟s Degree Course in Architecture effective from the Academic

Session 1992-1993. The "Interpretations" Clause on which reliance is placed

by the counsel for the petitioners, in sub-Clause (j) defines „Internal

Assessment‟ as meaning the marks awarded to the years‟ work by the

faculty and „External Evaluation‟ in sub Clause (k) as the marks awarded to

the years‟ work by the external jury and/or the marks awarded by the

examiners for theory papers. It is informed that in the 3rd year there were no

theory papers. On the basis of the said Clauses it is urged that Internal

Assessment and External Evaluation is of the same work. However, I find

that the said Scheme in Clause 7 thereof further elaborates "Internal

Assessment". It is provided therein that marks for internal assessment are

allotted to evaluate the performance of the students on a continuous basis;

the teacher concerned in consultation with the Head of Department is free to

adopt any of the methods viz. written tests, viva-voce, class assignments,

studio work, seminar, practicals, term papers, tutorials etc. for assessing the

performance of the students. On the contrary "External Evaluation" is

elaborated in Clause 8 of the Scheme; the External Jury is to evaluate years‟

work in Architectural Design in all examinations; the students are required

to make themselves available during the period of external evaluation to

offer clarifications on their work. It would thus appear that the scope of

internal assessment and external evaluation is entirely different. The counsel

for the respondent SPA also contends that while the internal assessment is

done on the basis of continuous evaluation of performance throughout the

year, the External Jury visits for a few hours only and assesses on that basis.

The counsel for the respondent has also drawn attention to the poor past

performance of the petitioners. It is informed that the petitioners have been

repeatedly failing and for this reason only have been unable to complete the

course.

10. The petitioners have been unable to satisfy me that the scope of

internal assessment and external evaluation is identical or that both sets of

examiners judge performance on the same material and same parameters.

On the contrary, the argument defies logic. The scope of internal assessment

and external examination ordinarily cannot be the same. While the internal

faculty of the College/Institute has an opportunity to assess the performance

of the student regularly, the external jury has no such opportunity. The very

concept of internal assessment shall be defeated if the best performance put

up before the external jury were to be the only criterion. If the argument of

the petitioners were to be accepted, the marks of internal assessment and

external evaluation should always be identical. Such a proposition is found

to be preposterous.

11. The external jury would assess the Architectural Design in its final

shape/form. However the in-house faculty has opportunity to see and judge

the same from conception and through each and every stage thereof till it

takes final shape. Thus while internal assessment is concerned with judging

the skill of the student in conceiving and developing the design, the external

evaluation is only concerned with the final product. In today‟s day and time

when even school homework and projects are being outsourced for

consideration, the possibility of a student procuring a design from elsewhere

cannot be ruled out. While only the in-house faculty would know that the

student has not conceived and developed it himself/herself, the external

evaluator would only evaluate the final product.

12. That brings me to the question as to whether the proportion of the

marks for internal assessment and external assessment has to be necessarily

50:50 and whether change thereof by the respondent no.1 SPA to 67:33

entitles the petitioners to have their result declared as invalid. However

before coming to the said question, two enquiries have been made from the

counsel for the petitioners. Firstly, as to how the petitioners will benefit by

having the result declared as bad and secondly as to why the petitioners

should be allowed to challenge the said procedure of the respondent SPA,

after having taken the exam on the basis of the same procedure and having

been unsuccessful in the same. On enquiry, the counsel for the respondent

SPA informs that the marks structure of 67:33 has been in vogue since

inception of the respondent SPA.

13. With respect to the first query, it was felt that even if the contention

of the petitioners were to be accepted and the marks structure of the

respondent SPA set aside, the petitioners will have to still take the exam

again and would in any case face the bar aforesaid of seven years. The

counsel for the petitioners however states that the petitioners are not

claiming setting aside of the result declared on 14th July, 2009. It is stated

that the relief claimed by the petitioners is that the marks obtained by them

in external evaluation be increased proportionately so as to account for 50%

instead of 33% and the marks in internal assessment be proportionately

changed to that out of 50% instead of 67%. It is contended that upon the

same being done, the petitioners would pass the exam and become eligible

for promotion to the 4th year. With respect to the second query the counsel

for the petitioners fairly states that, that can be one way of looking at the

matter.

14. I am not satisfied with the reply of the petitioners to the queries. The

petitioners inspite of having earlier also failed did not find fault with the

marks/examination structure of the respondent SPA. The petitioners took a

chance of appearing in the 3rd year examination. Only on failing in the same,

the challenge to the marks structure is being made. The petitioners cannot be

permitted to do so. They were fully aware of the said marks structure and

agreed to be bound by the same and took the exam on that premise. The

petitioners cannot now be permitted to assail the same. The Supreme Court

in Madan Lal Vs. State of J&K AIR 1995 SC 1088 held that it is now well

settled that if a candidate takes a calculated chance and appears at the

interview, then only because the result of the interview is not palatable to

him, he cannot turn around and subsequently contend that the process of

interview was unfair or selection committee was not property constituted;

when the petitioner appears at the examination without protest and when he

finds that he would not succeed in the examination, he files a petition

challenging the said examination, the Court should not grant relief to such a

petitioner. Recently, in Amlan Jyoti Borooah Vs. State of Assam (2009) 3

SCC 227, it was reiterated that candidates who take part in the selection

process knowing fully well the procedure laid down therein, are not entitled

to question the same.

15. Similarly, the marks of the result already declared cannot be so altered

as sought by the petitioners. The petitioners even if succeeding in their

challenge to the marks structure of the respondent SPA would only be

entitled to appear again in the examination of the 3rd year and which they

are now prohibited from appearing owing to the seven years bar aforesaid.

16. That brings me to the challenge on merits in the petition. The

Regulation relied on by the petitioners is Regulation 7 (3) of the Regulations

(supra) and which is as under:-

"The weightage of marks for subjects having both class work marks as well as examinations marks may not exceed the ratio of 50:50."

The counsel for the respondent SPA has sought to meet the said contention

by relying on "Notwithstanding anything contained in these Regulations, the

institutions may prescribe minimum standards of Architectural Education

provided such standard, does not, in the opinion of the Council, fall below

the minimum standards prescribed from time to time by the Council to meet

the requirements of the profession and education thereof" appearing after

Regulation 8.

17. The counsel for the petitioners has rejoined by contending that the

aforesaid is with respect to the standards of education and not with respect to

the conduct of the examination.

18. The Regulation 7(3) uses the words "may not" and not the words

"shall not". I do not find any reason to read the word "may" as "shall" in the

present case particularly when the non-obstante provision aforesaid vests a

discretion in the institutions. The variation from the Regulations by the

institutions has to be found to be bad by the Council of Architecture. The

statement of the counsel for the respondent SPA that the aforesaid marks

structure has been in existence since inception has not been rebutted by the

counsel for the petitioners. If the said marks structure being followed by the

respondent SPA was below the minimum standards as prescribed in the

Regulation aforesaid, the Council would have certainly intervened. The

Council of Architecture though impleaded as respondent no.4 in the present

petition, has also not contended that it finds the marks structure of the

respondent SPA challenged in this petition to be below the minimum

standards prescribed in the Regulations aforesaid. I also do not agree with

the contention of the petitioners of the said non-obstante clause relating only

to standards of education and not to examination. The reference to

examination in the Regulations is in the context of the standards of

Architectural Education only. The said challenge of the petitioners also

therefore does not stand. I must however record that the counsel for the

petitioners has drawn attention to the letter dated 16 th November, 2009 of the

Council of Architecture in response to the RTI query of the petitioners to the

effect that the minimum standards prescribed are mandatory. However on

interpretation of the same, this Court has found that the Regulations

themselves permit variation. Moreover, the reference in Clause 7 (3) (supra)

is to class work marks as well as examination marks and not to internal

assessment and external evaluation.

19. Before parting with the case, another contention of the petitioners

though not urged may also be considered. It was sought to be suggested that

under Regulation 7(5) aforesaid, only the students who had passed in

internal assessment are permitted to appear in an examination. It was sought

to be suggested that the petitioners were deemed to have passed in internal

assessment because their external evaluation was permitted to be done. The

argument is again misconceived. Clause 7(5) deals with an examination for

which an admit card is required. The same is not the position here according

to the petitioners also.

20. The petition is therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 20th September, 2010 pp..