Siddharth Kaul & Ors. vs Guru Gobind Singh Indraprastha ...
2011 Latest Caselaw 5878 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 2nd December, 2011

+                          W.P.(C) No. 7610/2011

%      SIDDHARTH KAUL & ORS.                   .......Petitioners
                   Through: Ms. Geeta Luthra, Sr. Adv. with Mr.
                             Sanjeev Sahay and Mr. Harish Malik,
                             Adv.

                          Versus
    GURU GOBIND SINGH INDRAPRASTHA
    UNIVERSITY                                ..... Respondent
                  Through: Mr. Mukul Talwar, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                 JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The 203 petitioners are the students of colleges affiliated to the

respondent University. They have filed this petition claiming the following

reliefs:-

a) Pass a writ of certiorari or writ, order or directions like in nature declaring the part of the Prospectus which provide that 90% of the credit of Ordinance 11(B)(iii) is mandatory for promotion from one year to the next year is illegal, arbitrary and ultra vires and hence liable to be set aside.

b) Pass a writ of certiorari or writ, order or directions like in nature declaring that the Clause 11 OF INDRAPRASTHA VISHWA VIDYALYA ACT and other relevant clauses which provides for pass percentage 50 marks per subject is illegal, arbitrary and ultra vires, hence is liable to be set aside;

c) Pass a writ of certiorari or writ, order or directions like in nature declaring that the Clause 11 OF INDRAPRASTHA VISHWA VIDYALYA ACT and other relevant clauses which provides for re-totaling of the answer sheet is illegal, arbitrary and ultra vires and hence liable to be set aside;

d) Pass a writ of mandamus directing the respondents to hold the counseling, declaring the result of the semesters and or re-valuation is done within the specified/reasonable time so that no part of academic year is lost;

e) Pass a writ of Mandamus or writ, order or directions like in nature declaring that the pass percentage should be 50 marks per subject;

f) Pass a writ of mandamus directing the respondents to hold re-

valuation of the examination papers;

g) Pass a writ of mandamus directing the respondents to have Credit System based on uniform grading i.e. equal number of grades in each semester.

h) Pass such other and further order/orders as this Hon'ble Court may deem fit and proper in the interest of justice."

2. Pleadings have been completed and the counsels have been heard.

3. The various issues raised may be categorized as under:-

i. Right to re-evaluation / re-assessment of answer sheets as

distinct from re-totaling only permitted by the University;

ii. Discrimination between the students of the colleges affiliated to

the respondent University and the students of the colleges of the

respondent University itself, in the matter of proportion of the

internal and the external assessment marks; while for the

students of the affiliate colleges the same is 25:75; that in the

University's own colleges is 40:60;

iii. Imposition of the pass marks as 50%. It is contended that the

pass marks in the other Universities are 40% only;

iv. The Rules of promotion from one year to the other. It is

contended that the rule of requiring the students to have 50% of

the credits for the current year and overall 90% credits of the

previous years, to get promoted to the next academic year is

bad; and,

v. Delay on the part of the University in declaring the result and

result of re-evaluation.

RE-EVALUATION

4. On the aspect of re-evaluation, it is pleaded that the same is critical if

the student has failed and/or is on the borderline; that several other

institutions are providing for re-evaluation / re-assessment of answer sheets;

no prejudice will be caused to the respondents in permitting re-evaluation /

re-assessment whereas if re-evaluation / re-assessment is not provided, the

students suffer extreme hardship and great prejudice. The respondent

University in its counter affidavit has pleaded that the Supreme Court has

held that no direction to the University or any other academic body to re-

evaluate the evaluated answer sheets can be given unless the ordinances and

rules of the University specifically provide therefor.

5. The senior counsel for the petitioners during the hearing while not

controverting that a right of re-evaluation has been denied by the courts till

now has contended that time is ripe for change of the said view. It is

contended that re-evaluation would be in consonance with the principles of

transparency now in vogue and as acknowledged by the introduction of the

Right to Information Act, 2005. It is further contended that the factors of

sheer impossibility of the exercise of re-evaluation which weighed with the

Supreme Court in denying re-evaluation in the CBSE examination in which

lacs of students appear and of likelihood of delays in further admission if

such exercise were to be undertaken, do not exist in the case of the

respondent University which has only 28000 students.

6. We are unable to agree. The Supreme Court in Maharashtra State

Board of Secondary and Higher Secondary Education Vs. Paritosh

Bhupeshkumar Sheth AIR 1984 SC 1543 held that it is not within the

legitimate domain of the Court to determine whether the purpose of a statute

can be served better by adopting any Policy different from what has been

laid down by the legislature or its delegatee and to strike down as

unreasonable a Bye-Law merely on the ground that the Policy enunciated

therein does not meet with the approval of the Court is not permissible. The

argument of fair play requiring such re-evaluation was also rejected and it

was held that if it is found that every possible precaution has been taken and

all necessary safeguards provided to ensure that the evaluation is done by the

examiners applying uniform standards with checks and cross-checks at

different stages and that measures for detection of malpractice, etc. have also

been effectively adopted, it will not be correct on the part of the Courts to

strike down the provision prohibiting re-evaluation on the ground that it

violates the rules of fair play. Similarly, the argument of public interest was

also not accepted.

7. The Division Bench of this Court in Parents Forum for Meaningful

Education Vs. CBSE AIR 1994 Delhi 44 also laid down that the setting of

the question papers in the examination and the evaluation of the answers is

the prerogative of the examining body and it is not advisable for Court to

interfere therein. The Supreme Court in SLP preferred by the CBSE against

the said judgment, vide order dated 5th November, 1993 set aside the

direction of the Division Bench of this Court to the CBSE to introduce the

system of re-evaluation. The Supreme Court prior thereto in Jawaharlal

Nehru University v. B.S. Narwal (1980) 4 SCC 480 had already opined that

authorities of the University are best qualified and the Courts, perhaps least

qualified to judge the academic performance of a student and there can be no

question of giving an opportunity to be heard when the student fails in the

test.

8. Another Division Bench of this Court in Parents Forum for

Meaningful Education v. CBSE being W.P.(C) No.1824/1997, vide

judgment dated 19th December, 2001 held that this Court would not interfere

with the Policy decision far less in relation to education and which has been

evolved by experts. The question of re-evaluation was held to be not res

integra.

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

Bihar Public Service Commission AIR 2004 SC 4116 also held that in the

absence of any provisions in the rules for re-evaluation of answer books, no

candidate had a right thereto.

10. The counsel for the respondent University has also invited our

attention to Bhushan Uttam Khare v. Dean, BJ Medical College (1992) 2

SCC 220 and to University of Mysore v. C.D. Govinda Rao AIR 1965 SC

491 to contend that Court should not interfere in academic matters. He has

also referred to Himachal Pradesh Public Service Commission v. Mukesh

Thakur (2010) 6 SCC 759 and to Secretary, W.B. Council of Higher

Secondary Education v. Ayan Das (2007) 8 SCC 242 laying down that it is

not permissible for the High Court to examine the question paper and answer

sheets itself and reiterating the earlier view.

11. We find that another Division Bench of this Court recently in

Rohit Kumar v. Delhi Subordinate Services Selection Board

MANU/DE/2075/2010 reiterated that in the absence of rules permitting the

same, re-evaluation cannot be directed unless a special case therefor is made

out.

12. The aforesaid conspectus of law would show that in the absence of

any provision therefor, right of re-evaluation has been denied across the

board irrespective of the number of examinees and the denial has not been

restricted to cases of CBSE or where there are lacs of examinees.

13. The senior counsel for the petitioners of course contends that the

Apex Court in Paritosh Bhupeshkumar Sheth (supra) had satisfied itself of

the checks and balances in the examination scheme and for this reason had

denied the right of re-evaluation. She has contended that the respondent

University in its counter affidavit has not pleaded anything in this regard.

However we do not agree. It was for the petitioners to plead and establish a

case for re-evaluation to have arisen in the case of the respondent University.

There are no pleadings in this regard. We cannot presume that the

respondent University has not ensured fair, objective and uniform evaluation

of the answer sheets.

14. As far as the argument of transparency is concerned, undoubtedly the

Apex Court in CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497 has in

allowing inspection of answer sheet to the examinees struck a chord

different from that prevalent earlier. However para 17 of the same judgment

notices the provisions barring re-evaluation of answer books and restricting

the remedy to re-totaling and holds the same to be valid and binding on the

examinees. The Supreme Court did not hold that allowing the examinees to

inspect the evaluated answer sheets will result in allowing re-evaluation also.

No right to seek re-evaluation was found to be flowing from RTI Act also.

Rather the same Bench in the Secretary, All India Pre Medical/Pre Dental

Examination v Khushboo Shrivastava (2011) 9 SCALE 63 pronounced

contemporaneously with Aditya Bandopadhyay (supra), set aside the orders

of the High Court substituting their views for that of the examiner and held

the same to be impermissible.

15. It is not as if in the absence of a provision for re-evaluation a

candidate is vulnerable or at the mercy of an examiner. Wherever a case

calling for re-evaluation is established, the Courts have allowed the same.

Reference may be made to Sahiti v. Chancellor, Dr. N.T.R. University of

Health Sciences (2009) 1 SCC 599 where the right of the Examining Body

to for sufficient reasons order re-evaluation was upheld. The Supreme Court

in Sanjay Singh v. U.P. Public Service Commission, Allahabad (2007) 3

SCC 720 has also emphasized the necessity of having uniformity and

consistency of evaluation of answer scripts and noticing that evaluation by

several examiners may result in "examiner variability" or "hawk-dove

effect", prescribed the procedure to be followed to ensure uniformity inter se

the examiners so that the effect of "examiner subjectivity" or "examiner

variability" is minimized. However notwithstanding the same, a general

right of re-evaluation without even establishing a case therefor was not

allowed nor has been allowed in any other judgment. Mention may also be

made of the President, Board of Secondary Education v. D. Suvankar

(2007) 1 SCC 603 where also the Supreme Court after observing that it is

the bounden duty of the Board to ensure the examiners who evaluate the

answer papers are equipped for the job and the possibility of wide variation

in evaluation by different examiners is reduced, still held that the scope for

judicial interference therein is very limited unless compelling reasons are

shown.

16. Not only is the question thus no longer res integra but the petitioners

in the present case have not even made out any case for striking down the

provision of the respondent University prohibiting re-evaluation. We have

also wondered as to where such re-evaluation scheme even if permitted

would lead to. Evaluation of an essay type answer necessarily, to a certain

extent, has to be subjective. Re-evaluation in the present case is founded on

the expectation of the petitioners, who have failed to secure prescribed

credits for promotion to the next academic year, of better marks. The

Supreme Court in Union of India v. Mohan Lal Capoor AIR 1974 SC 87

held that "it is not expedient to extend the horizon of natural justice in the

audi alteram partem rule to the twilight zone of mere expectations, however

great they might be". The petitioners have neither alleged nor shown any

irregularity in the conduct of the examination. There is no basis for the claim

for re-evaluation. The said claim is accordingly dismissed.

DISCRIMINATION

17. We now proceed to take up the next challenge of discrimination. The

respondent University in its counter affidavit has denied any such

discrimination. It is the case of the respondent University that the proportion

of the internal and external assessment marks in affiliate as well as

University colleges is the same i.e. 25:75. The petitioners in support of their

claim have been able to place before this court instance only of the course

conferring a Dual Degree of B.Tech/M.Tech. The proportion between the

internal and the external assessment marks in the said course is of 40:60. It is

the contention of the counsel for the respondent University that since as per

the rules/ordinances of the respondent University the proportion of internal

to external assessment for post-graduation courses is of 40:60, in the said

dual course the same proportion is provided. The counsel for the petitioners

rejoins by contending that a student of the said dual course has the option to

leave after completing the B.Tech and is not necessarily required to do

M.Tech; on the basis of the records of the previous year, it is demonstrated

that most of the students admitted to the said course left after B.Tech and do

not proceed to do M.Tech.

18. We may at the outset state that the petitioners, in the petition failed to

plead the distinction between the course, reliance on documents whereof was

placed to contend discrimination. We cannot believe that the petitioners

were not aware thereof. Such attempts have but to be deprecated. Had the

petitioners carved out the said distinction, the respondent University would

have had occasion to respond as to why notwithstanding the option to the

students to leave after the B.Tech, the proportion as of post-graduation

courses had been applied to the B.Tech part of the said course also. However

it stands established that the course of the respondent University college on

the basis of which discrimination is alleged is different. The counsel for the

petitioners has not been able to show that any of the affiliate colleges also

has such a dual degree course or that the proportion prescribed therein is

different. She has also not been able to controvert that the proportion in

other courses in University colleges is the same as in the affiliate colleges.

We are sure the expert academicians in the University have their reasons for

providing a different proportion in the dual degree course. The Supreme

Court in All India Council For Technical Education v. Surinder Kumar

Dhawan (2009) 11 SCC 726 has held that the Courts are not equipped to

judge whether one course is identical to another and if start venturing into

such exercise, it will lead to chaos in education and deterioration in

standards of education. No such case of discrimination also is made out.

19. We are also concerned with the rationale behind the claim of the

petitioners for internal assessment to the extent of 40% instead of 25% as

provided. Ordinarily, a student/examinee ought not to be concerned with

who the examiner is, whether one to whom his face is familiar or the other to

whom he is faceless. The claim for higher proportion of internal assessment

is predicated on a premise that a student, for the same performance is likely

to secure better marks if assessed internally than in external assessment. The

criteria for assessment is expected to be, and we hope is, the same, whether

the assessment is internal or external.

PASS PERCENTAGE

20. The third challenge to pass percentage of 50% is also predicated on

the argument that the same was pegged high, instead of 40% or 45%, owing

to the proportion of the internal assessment marks in the University colleges

being 40% and with which parity was claimed. However it has not been

found so. The challenge to 50% pass percentage is liable to be rejected on

this ground alone. The counsel for the petitioners has not been able to urge

any other argument to find any illegality or wrong in the pass percentage

fixed by the respondent University.

21. The counsel for the petitioners has been unable to cite any law or rule

requiring the respondent University to provide a lower pass percentage

merely for the reason of some other Universities/academic bodies so

providing. We are unable to understand any right in a student to challenge

such rule of the University. The petitioners if desirous of scraping through

the examination with less than 50% marks, ought not to have taken

admission to the respondent University or its affiliate colleges. In today's

day and time of extreme inter se competition when the education sector has

been opened to the private players, the argument is contrary to the goal of

achieving excellence. The Universities are expected to impart and instill

education and knowledge and not to churn out graduates with Degrees but

with little knowledge. Assessments are designed to measure student learning

at the end of a period of time and play an important role in holding the

system responsible for student outcomes particularly when they are shared

publicly and transparently as part of accountability and improvement

systems. The students are the brand ambassadors of the University and a

University is entitled to peg its brand higher than other Universities. If the

respondent University has opted to confer a Degree or qualification only on

those who obtain at least 50% marks, no folly can be found therewith.

22. A Division Bench of this Court in Ashutosh Bharti v. Ritnand Balved

Education Foundation MANU/DE/0024/2005 has already held that if any

step is taken towards better educational method and standards, not only the

Court should not come in the way but must command and encourage it.

Better standards are required for learning and it can be only from

experiences and different modalities. Educational Institutions are the best

judges to impose appropriate restrictions and conditions. Merely because the

conditions which are imposed may be found inconvenient to some students,

it cannot be challenged as being arbitrary. Recently another Division Bench

in Independent Schools' Federation of India (Regd.) v. CBSE

MANU/DE/3352/2011 reiterated that the Courts are not experts to judge the

decisions that have been arrived at by the Educational Bodies and experts

and the same are policy decisions with which the Courts would be slow to

interfere.

23. The fixation of the pass percentage is also dependent on curricula

amongst other factors. The expert academicians of the respondent University

in the light of the course curricula have fixed the pass percentage of 50%. It

is not the case of the petitioners that the course curricula and the other

factors in the other Universities which may be having a lower pass

percentage is the same. Even if it was possible to make out a case for

discrimination, none has been made out or pleaded.

24. We are also of the opinion that even if the course curricula were to be

the same, no case of discrimination is made out. A University/academic

body is always entitled to set higher benchmark. It is not without any reason

that a handful of Universities of the world qualify to be in the Ivy League.

The students, after joining the University cannot be permitted to compel the

University to lower its standards. It is the student who opts for the

University and not the other way round. If the student feels that he is unable

to cope with the University standards, it is for him/her to opt out and he

cannot be permitted to create circumstances which would lead to the

University lowering its standards. The prospective employers judge the

merits of the prospective employees from their qualifications and in which

University forms a relevant criterion. It is for this reason only that students

of Universities which maintain high standards command better emoluments

than those of other Universities. Passing out from an Ivy League University

opens doors to a better future which passing out in the same course from

another University does not. It cannot be lost sight of that of the stated

28000 students of the respondent University a mere 200 have filed this

petition. A handful of students cannot dictate the standards of the University.

There is thus no merit in the said challenge also. The Apex Court in Prof.

Yashpal v. State of Chhattisgarh (2005) 5 SCC 420 observed that an

academic Degree is of great significance and value and goes a long way in

shaping the future of the holder thereof and the interest of the society

requires that the holder of such a Degree must possess the requisite

proficiency and expertise in the subject which the Degree certifies.

25. Reference may also be made to Visveswaraiah Technological

University v. Krishnendu Halder (2011) 4 SCC 606 where the Apex Court

has held that the object of prescribing eligibility criteria is to ensure

maintenance of excellence in standards of education and not to fill up all the

seats. Reducing the standards to fill the seats was held to be a dangerous

trend which will lead to destruction of the quality of education. Warning was

sounded of creeping commercialization of education and it was reiterated

that determination of such standards being part of academic policy of the

University, are beyond the purview of judicial review. Accordingly, the

action of the University prescribing higher standards for admission than

those prescribed by AICTE was upheld.

PROMOTION RULES

26. What has been observed by us herein above with respect to pass

marks equally applies to the rules of promotion. We may notice that the

petitioners are the admittees to the University of the year 2009-10. Earlier

also the admittees of the said year had filed petitions before this Court

challenging the denial of promotion from the first to second year owing to

the amendments of 20th October, 2009 to inter alia Ordinance 11 of the

University. The said challenge was decided by one of us vide judgment

Siddharth Tomar v. GGSIP University 172 (2010) DLT 82. It was held that

since the amendment was of a date after the admission, the same would not

apply to the admittees of the said year. On appeal by the University

thereagainst, being LPA No.677/2010, a settlement was arrived at as

recorded in the order dated 21st September, 2010. It was agreed that the said

amendment would be applicable to the 2009-10 batch of students from the

Academic Year 2010-11. Now the petitioners intend to back out from the

said settlement also. The said challenge is liable to be dismissed on this

ground alone.

27. The counsel for the petitioners has vehemently argued that owing to

the delays by the respondent University in declaration of results, the classes

of the next academic year commenced before such declaration also; that the

petitioners had to pay the fee of the next academic year and also started

attending the classes of the next academic year; that the University itself

having delayed the result and having made the petitioners to pay the fee and

attend classes of the next academic year is now not entitled to deny them

promotion and is estopped from doing so. Reliance is placed on Kanishka

Aggarwal v. University of Delhi AIR 1992 Delhi 105 and on Javed Akhtar

v. Jamia Hamdard (2007) I AD (Delhi) 542.

28. Though the petitioners have challenged Ordinance 11 but have chosen

not to file the same. The counsel for the respondent University during the

course of hearing handed over a copy thereof. The same provides as under:-

"(iii) A student will be promoted to the next academic year only if such student has obtained at least, A. 50% (accurate upto two decimal digits) of the total credits of the ensuing academic year from which the promotion to next academic year is being sought, and B. 90% (accurate upto two decimal digits and rounding off thereafter to full digits) of the total credits of all previous years excluding the credits of the ensuing academic year from which the promotion to next academic year is being sought. All such students who fail to get promoted to next academic year for the reason of deficiency in required credits as stated here in above will automatically be declared to have taken academic break to reappear in such examinations of previous semesters in which the student has failed, so as to obtain sufficient credits to be promoted to the next academic year. Only two academic breaks are permissible for a student for the completion of the academic programme/course."

29. He has further contended that the earlier system being followed by the

University of not insisting on minimum credit for promotion from one

academic year to another was resulting in a large number of students having

a number of papers to clear though having reached the final year of the

course and thereafter seeking extensions of the maximum time prescribed

for completing the course.

30. We fail to see as to what is the right of the petitioners to claim to be

promoted when they have not imbibed, to be able to pass the exam, what has

been taught to them in the current year. There is generally a continuity in the

syllabus/curriculum for the succeeding years and without knowledge

sufficient to clear the exam of the syllabus/curriculum of the previous year,

attendance in classes of the subsequent years is likely to serve no purpose. If

the academic experts of the University have devised a scheme for

promotion, this Court would not interfere in the same. The petitioners even

otherwise are a handful of failures who have no equity in their favour.

31. The petitioners have also challenged the system of promotion by

contending that the "credits" necessary for promotion are weighed only on

the number of subjects/papers passed and without giving any weightage to

the marks obtained in the subjects/papers passed. It is urged that credit

should be given for the high marks if obtained in the subjects/papers passed,

to compensate for the failure in other subjects/papers.

32. Again, these are policy matters and no case for interference therewith

is made out. Moreover, the same was not even the subject matter of

amendment and the system has been in vogue since prior to the petitioners

taking admission. The Supreme Court in Thapar Institute of Engineering

and Technology v. Gagandeep Sharma (2001) 9 SCC 157 was also

concerned with rules of promotion in an educational institution and set aside

the judgment of the Division Bench of the High Court allowing the students

to take advantage of the unamended as well as the amended Regulations

when the Regulations did not provide so and restored the judgment of the

Single Judge of the High Court holding that to prescribe the academic

standards falls exclusively in the domain of special bodies of the University

and refusing to interfere with the Regulations of the University which were

intended to improve the academic standards. The students cannot be

permitted to decide the academic policies or to seek change thereof to enable

them to get over their own deficiencies. The Supreme Court recently in State

of H.P. v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh

(2011) 6 SCC 597 once again reiterated that education is a dynamic system

and has to keep changing and none can have a right to insist upon

continuance of the state of affairs earlier prevailing and the Courts must

refuse to sit as super legislature to weigh the wisdom of such decisions

unless they run counter to the mandate of the Constitution and cannot

proceed on the premise that the decision makers were unaware of the

situation.

33. Mere payment of fee would not create any rights in favour of the

students. The counsel for the respondent University has explained to us the

reasons for delay on the part of the University in declaring the results and

has assured us that suitable steps have already been undertaken to prevent

the same from happening again. We are of the view that principles of

estoppel would not arise when the petitioners were fully aware that the result

had not been declared and when there was no representation to them that

payment of the fee would entitle them to promotion irrespective of the result

of the examination which was then yet to be declared. The Supreme Court

in National Board of Examinations v. G. Anand Ramamurthy (2006) 5

SCC 515 has held that the principle of legitimate expectations has no

application in such matters. A Division Bench of the Bombay High Court in

Forum for Fairness in Education v. University of Mumbai

MANU/MH/1423/2003 where also provisional admissions to the next

academic year had been made awaiting the results, held that the remedy of

the students was only to take action for wrongful recovery of fee and not on

the basis thereof claim promotion.

34. The observations of the Supreme Court in Prof. Yashpal (supra) that

the success of a University is to be judged as much by the type of Graduate

it turns out are apposite here. A Degree must always be what a University

makes it by the kind of teaching it imparts and the type of intellectual life it

provides for its members. In our country where it is not uncommon to hear

people describing their educational qualification as first year pass or second

year pass, allowing the petitioners to be promoted without having obtained

the requisite qualifications will tantamount to giving them licence to claim

so, without infact passing and which we are not inclined to do.

35. We therefore do not find any merit in the petition. The same is

dismissed. No order as to costs.

RAJIV SAHAI ENDLAW, J.

ACTING CHIEF JUSTICE DECEMBER 2, 2011/pp