Delhi High Court
Yusuf Jawed vs Jamia Milia Islamia on 27 November, 2014
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th November, 2014
+ LPA No.956/2013
AMIT KUMAR ..... Appellant
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No. 189/2014
RAID HODA ..... Appellant
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No.210/2014
ARCHANA KRISHNAN ..... Appellant
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No.211/2014
SHAGUFTA HUSSAIN ..... Appellant
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No.213/2014
AMIT DIXIT ..... Appellant
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
LPAs No. 956/2013, 189, 210, 211, 213, 214, 215, 216, 400,401, 434, 564 & 596 all of 2014 & W.P.(C) No.5214/2013 Page 1 of 43
AND
+ LPA No.214/2014
RISHI KANWAR ..... Appellant
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No. 215/2014
LOVE AGGARWAL & ORS ..... Appellants
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No.216/2014
GEYIR POTOM ..... Appellant
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No.400/2014
ADITYA KHINCHI & ORS ..... Appellants
Through: Mr. Umesh Sharma, Adv.
Versus
UNIVERSITY OF DELHI & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
+ LPA No.401/2014
ANITA SAINI & ORS ..... Appellants
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR ..... Respondents
Through: Mr. Mohinder Jit Singh Rupal, Adv.
AND
LPAs No. 956/2013, 189, 210, 211, 213, 214, 215, 216, 400,401, 434, 564 & 596 all of 2014 & W.P.(C) No.5214/2013 Page 2 of 43
+ LPA No.434/2014
ENA SIKKA & ORS. ..... Appellants
Through: Mr. R.K. Saini with Mr. Abishek
Kaul, Advs.
Versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. M.J.S. Rupal with Ms. Yamini
Phayang, Adv.
AND
+ LPA No.564/2014
PAWAN & ORS. ..... Appellants
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR. ..... Respondents
Through: Mr. M.J.S. Rupal with Ms. Yamini
Phayang, Adv.
AND
+ LPA No.596/2014
J. ABHISHEK & ORS. ..... Appellants
Through: Mr. Umesh Sharma, Adv.
Versus
DELHI UNIVERSITY & ANR. ..... Respondents
Through: Mr. M.J.S. Rupal with Ms. Yamini
Phayang, Adv.
AND
+ W.P.(C) No.5214/2013
YUSUF JAWED ..... Petitioner
Through: Mr. Tanmaya Mehta, Adv.
Versus
JAMIA MILIA ISLAMIA ..... Respondent
Through: Ms. Jaya Goyal along with Mr. Varun
Garg, Advs.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
LPAs No. 956/2013, 189, 210, 211, 213, 214, 215, 216, 400,401, 434, 564 & 596 all of 2014 & W.P.(C) No.5214/2013 Page 3 of 43
RAJIV SAHAI ENDLAW, J.
1. All these matters concern the maximum period, also called the span
period, prescribed by the University of Delhi and Jamia Millia Islamia
University for completing the various courses / programmes being
conducted by the said Universities.
2. The counsel for appellants in the following twelve appeals, all relating
to University of Delhi, has stated that the judgments impugned in each of the
said appeals is identical and he has argued them as one only:-
Sr. Appeal Number Arising from Against the judgment
No. dated
th
1. LPA No.956/2013 W.P.(C) No.7177/2013 27 November,2013
2. LPA No.189/2014 W.P.(C) No.7425/2013 27th November,2013
3. LPA No.210/2014 W.P.(C) No.1181/2014 20th February,2014
4. LPA No.211/2014 W.P.(C) No.1179/2014 20th February,2014
5. LPA No.213/2014 W.P.(C) No.949/2014 7th February,2014
6. LPA No.214/2014 W.P.(C) No.946/2014 7th February,2014
7. LPA No.215/2014 W.P.(C) No.1180/2014 20th February,2014
8. LPA No.216/2014 W.P.(C) No.8119/2013 19th December,2013
9. LPA No.400/2014 W.P.(C) No.2835/2014 6th May,2014
10. LPA No.401/2014 W.P.(C) No.2065/2014 31st March,2014
11. LPA No.564/2014 W.P.(C) No.5186/2014 14th August,2014
12. LPA No.596/2014 W.P.(C) No.5843/2014 4th September,2014
3. The position which emerges is as under:
(a) Clause 1 of the Ordinance V of the University of Delhi made /
issued in exercise of powers under Section 30 of the Delhi
University Act, 1922 lists the Degrees, Diplomas and
Certificates issued by the University; Clause 2 of the said
Ordinance V provides that the respective courses of study for
each of the Degrees, Diplomas and Certificates mentioned in
Clause 1 of the said Ordinance shall be as set out in Appendix
II to the Ordinances;
(b) Ordinance VII of the University of Delhi, in Clause 1(3)
thereof, prescribes duration of the different courses of study
offered by the University; the same also prescribes that the
other conditions regarding attendance in respect of the courses
shall be as laid down in Appendix-II to the Ordinances;
(c) Appendix-II, besides prescribing the courses of study for each
of the Degrees, Diplomas and Certificates and the conditions
regarding attendance in respect of each course, also prescribes
the span period i.e. the maximum period in which the course
has to be completed. By way of illustration, we refer to Clause
8 of the provisions relating to Faculty of Law-Bachelor of Laws
(LL.B.) Degree Examination (duration prescribed whereof is
three years) and which is as under:-
"8. Subject to the provision contained in the
Ordinance relating to ex-students as in force from time to
time a student must clear all the courses offered in all the
Terms within a span period of six years from the date of
admission to First Year of the LL.B. Course and that no
student shall be admitted as a candidate for any LL.B.
Examination after six years from the date of admission to
the First Year of the Course.
Notwithstanding anything contained hereinbefore in the
above provisions a candidate who had been admitted to
the LL.B. Course First, Second and Third year under the
old ordinance, in force prior to July, 1976 and has for
one reason or the other discontinued his studies or had
been detained for shortage in attendance, may be
readmitted to second year or third year, as the case may
be, provided such a candidate clears all the courses of all
the terms by the end of the academic year 1982-83 i.e.,
within six years from the academic year 1976-77 when
the revised Ordinance has come into operation.";
(d) Ordinance X-C of the University of Delhi is as under:-
"Ord. X-C Permissive Provisions
The Academic Council may, in exceptional cases grant
exemption from the operation of any of the Ordinances
governing admission of students, migration, the courses
to be pursued by them, attendance at lectures or sessional
or other work or the examination of candidates and
authorize what is proper to be done instead in such cases,
provided that no such exemption and authority shall be
deemed to have been granted unless not less than two-
thirds of the members present of the Academic Council
voted in favour of the motion for such exemption and
authority made by, or with the written authority of the
Vice-Chancellor; and
Provided further that this two-thirds majority voting for
the exemption should not be less than half the total
strength of the Academic Council at the time.";
(e) the Academic Council of the University of Delhi, in exercise of
powers under Ordinance X-C supra, in the meeting held on 17th
February,1975 passed the following Resolution:-
"ACADEMIC COUNCIL RESOLUTION NO.228
DATED 17.2.1975
228. The Council took up for consideration the cases of
students involving late admissions, permission to appear
at the examinations beyond the permissible span period,
relaxation of requirements of attendance at lectures etc.
etc. The Council was of the view that in order to have a
consistent approach in such matters and to save the time
of the Council spent in examining detailed circumstances
of such cases, it would be desirable if all such cases
before being brought on the agency of the Council were
initially examined by a Standing Committee of Academic
Council and only such cases are brought before the
Council for consideration as were recommended by the
said Standing Committee.
After discussion, it was decided that a Standing
Committee of the Academic Council be constituted to
scrutinize all such cases of students in future and subject
to procedural requirement of Ordinance X-A wherever
this Ordinance required to be invoked only such cases be
brought before the Academic Council as would be
recommended by the Committee. The Council further
authorizes the Vice-Chancellor to constitute the Standing
Committee for the purpose and further decided that all
the cases which were before the Council under items Nos.
7,8,9,10,22,41,46,55,56,57,58,59,60,61,68,69,70 of the
Agenda be referred to the Standing Committee for
scrutiny and consideration in the first instance.";
(f) in accordance with the aforesaid Resolution, a Standing
Committee was constituted and students who were unable to
complete the course / programme undertaken by them within
the span period provided therefor, could seek permission to
complete the course by appearing in the examination thereafter
also, by making representation to the said Standing Committee
and permission used to be granted on case to case basis;
(g) however the Registrar of the University of Delhi on 10th
October, 2012 issued the following Notification:-
"Ref: OSD-(CE)/2012/182
Delhi, the 10th October, 2012
NOTIFICATION
It is hereby notified that henceforth applications for
grant of „Special Chance‟ beyond the stipulated span
periods shall not be considered by the University.
Consequently, the students will have to complete their
courses of study within the span periods prescribed for
the courses concerned.
The applications already received by the University shall
not be processed further for consideration.
REGISTRAR";
(h) various representations were made by the students, teachers as
well as some members of the Academic Council of the
respondent University of Delhi also, thereagainst;
(i) the Registrar of the University of Delhi on 14th March, 2013
issued another Notification as under:-
"No.Aca.I/Spl.Chance/2013-2014/59
Delhi, the 14th March, 2013
NOTIFICATION
Subject: Grant of Special Chance to students beyond
the prescribed Span period.
1. In partial modification of the University Notification
No.OSD -(CE)/2012/182 dated 10th Oct., 2012, it is
notified that in order to mitigate the hardships of the
students, as a purely one time measure, the students may
submit their applications for grant of special chance to
enable them to appear in their backlog papers of Under-
graduate/Post-graduate courses with the specific
recommendations of the Principals of their respective
Colleges/Heads of Departments, alongwith the required
documents, latest by 5th April, 2013 for consideration of
the competent authority.
2. It may be noted that applications of only those students
shall be processed for consideration of the competent
authority in whose cases the subjects/papers have the
same or similar course titles and have substantially the
same course contents. Further, the cases of old students
in which neither the papers with similar titles nor the
course contents are found to be the same or similar shall
not be processed for consideration.
3. The applications received will be scrutinized by the
Examination Branch and the decision of the Examination
Branch with regard to short listing of the applications for
consideration by the competent authority shall be final.
4. In the case of the students who are granted special
chance, their examinations shall be conducted by the
University in accordance with the schedule/methods of
examinations prescribed by the University in this regard.
5. The students are advised to contact the Examination
Branch for further details in this regard.
6. The applications short listed by the Examination Branch
shall be processed for consideration of the Standing
Committee (Students) and the decision taken by the
competent authority on the recommendations of the
Standing Committee (Students) shall be final and no
further representations/requests will be entertained by
the University.
Sd.
REGISTRAR".
4. The counsels for the appellants have argued:
(i) that the Registrar of the University of Delhi had no power to
issue Notification dated 10th October, 2012 aforesaid overruling,
not only the Resolution No.228 dated 17th February, 1975 of the
Academic Council of the University, but also in contravention of
Ordinance X-C of the University of Delhi;
(ii) that Section 17 of the Delhi University Act while listing the
Authorities of the University does not even mention the
Registrar; on the other hand the Academic Council is an
authority of the University;
(iii) that vide Section 23 of the Delhi University Act, the Academic
Council is the Academic Body of the University, having control
and general regulation and responsible for the maintenance of
standards of instruction, education and examination within the
University and is the Body empowered to exercise such powers
and perform such duties as may be conferred or imposed upon it
by the Statutes;
(iv) that the Registrar is merely an officer of the University appointed
by the Executive Council of the University in exercise of powers
under Statute 11-K, to be the whole time officer of the University
on such terms and conditions as may be prescribed by the
Ordinances; none of the Ordinances authorize the Registrar to
annul a Resolution of the Academic Council; that thus the
Notification dated 10th October, 2012 issued by the Registrar of
the respondent University of Delhi, taking away the chance
which the students had of being allowed by the Academic
Council of the respondent University of Delhi to complete a
course / programme of study by taking the examination beyond
the span period prescribed for that course, is bad and the
appellants are entitled to have their requests for a special chance
for appearing in the examination beyond the span period
considered by the Standing Committee constituted for the said
purpose by the Academic Council of the respondent University
of Delhi; and
(v) that the notification dated 10th October, 2012 in any case is
prospective and cannot affect the appellants.
5. Per contra, the counsel for the respondent University of Delhi has
supported the judgments of the learned Single Judge of dismissal of the writ
petitions challenging the Notification dated 10th October, 2012 (supra),
(from which these appeals arise) holding that Ordinance X-C does not
empower the University to permit a student to continue in the course /
programme in case he fails to complete the said course / programme within
the span period prescribed for that course in Appendix-II and that the
relaxation granted by the University in the past was not authorized and was
beyond the powers of the University. He has further contended:
(a) that Ordinance X-C of the University empowers the Academic
Council to grant exemption from the operation of any of the
Ordinances governing, (i) admission of student; (ii) migration; (iii)
courses to be pursued by them; (iv) attendance at lectures or sessional
or other work; and, (v) the examination of the candidates only, and not
from the prescribed span period;
(b) that merely because the span period for different courses is mentioned
in Appendix-II referred to in Ordinances V and VII which Ordinances
deal with courses of study, the duration of the courses and the
attendance for the courses, does not mean that the Academic Council
in exercise of powers under Ordinance X-C is entitled to grant
exemption from operation of all provisions of the said Ordinances;
had the intention been so, Ordinance X-C would have referred to the
entire Ordinance V and VII and other Ordinances providing for
migration and examination and would not have only mentioned only
the said five aspects;
(c) that the appellants had / have no legal right to take examination
beyond the span period;
(d) that the appellants cannot claim parity with those who in the past were
allowed to take the examination beyond the span period;
(e) that in exercise of powers under Article 226 of the Constitution of
India, no illegality can be allowed to be perpetuated;
(f) that the Notifications aforesaid have the concurrence of the Vice
Chancellor of the University of Delhi;
(g) that the Academic Council of the respondent University of Delhi
comprises of nearly 200 members and any 10 of whom can requisition
a meeting of the Academic Council; if the Academic Council felt that
the Registrar of the University or the Vice Chancellor was in an error
in issuing the Notification dated 10th October, 2012, they could have
requisitioned a meeting and superseded the said Notification; the same
having not been done also shows that the Academic Council is in
concurrence therewith;
(h) that under Statute 11-G(2) of the University, it is the duty of the Vice
Chancellor to ensure that the Delhi University Act, the Statutes, the
Ordinances and the Regulations are duly observed;
(i) that the Registrar of the respondent University of Delhi in issuing the
Notification dated 10th October, 2012 has merely enforced the Statutes
and Ordinances of the University;
(j) that the relaxation given by the Registrar vide Notification dated 14 th
March, 2013 was a one time measure;
(k) that the Notification dated 14th March, 2013 was issued in exercise of
powers of the Vice Chancellor under Statute 11-G(4) to, in an
emergency, take immediate action;
6. LPA No.434/2014 impugns the judgment dated 7th May, 2014 of the
learned Single Judge of dismissal of WP(C) No.2865/2014 preferred by the
appellants therein. The said writ petition was preferred impugning the
refusal of the University of Delhi to conduct special examination for the
students who could not clear all the papers of three year Degree Course
[B.A. (Pass) and B.Com. (Pass)] within the span period of six years therefor
and though were allowed to appear in a special examination held for them
but could not reach the venue of the examination by 1500 hrs i.e. within 30
minutes of commencement of the examination scheduled from 1430 to 1730
hours and were late by 2 to 5 minutes in reaching the venue of the said
special examination for reasons beyond their control; axiomatically a
direction to the University to hold another special examination was sought.
The learned Single Judge dismissed the writ petition holding that the
contention of the appellants that they could not reach the venue of the
examination in time either due to heavy rain or due to a festival is
unacceptable and if such explanations are accepted, then no examination
schedule would have any sanctity attached to it and no examination would
ever be concluded. It was thus held that no further indulgence could be
shown to the appellants who had already availed of double the chances or
time period for completing their course and the special examination held was
an additional chance over and above the span period.
7. The writ petition from which LPA No.434/2014 arises having been
dismissed in limine, we allowed the respondent Delhi University to file its
counter affidavit. The University in its counter affidavit has pleaded that as
per the Superintendent of the Examination Centre where the special
examination scheduled on 20th August, 2013 from 1430 hrs to 1730 hours
was held, the appellants reached the examination centre at 1515 hours which
was 45 minutes late beyond the prescribed time of the examination and
therefore the appellants were not allowed to sit in the examination. It is
further pleaded that the said date was not a gazetted holiday and all the other
examinees reached the examination centre at the stipulated time.
8. The counsel for the appellants in LPA No.434/2014 has argued that
20th August, 2013 was a restricted holiday on account of Raksha Bandhan;
that the city had torrential rain on that date, leading to traffic jam and
disruption in metro services; that the appellants were late by about 35
minutes only i.e. reached the venue of the examination at 1505/1510 hours;
that though they made a representation to the Controller of Examination on
the same day but no action was taken thereon till on 8th November, 2013
when the same was rejected. Reliance is placed on the judgment dated 22 nd
July, 2010 of one of us (Rajiv Sahai Endlaw, J.) in WP(C) No.4782/2010
titled Saurabh Vs. GNCTD in which a student who had failed to attend the
counselling for admission to MBBS course for the reason of being admitted
to hospital on that, date on being found to be entitled to admission was
granted admission reasoning that his inability to appear for counselling was
for the reasons akin to act of God or force majeure or impossibility beyond
human control.
9. Per contra the counsel for the respondent Delhi University has drawn
attention to the relevant rule printed at the back of the admission card for the
said examination advising the candidates to reach the examination centre at
least half an hour before the commencement of the examination and
cautioning them that they will not be allowed to enter the examination hall
after half an hour of the commencement of the examination. He has also
contended that the appellant is not entitled to any relief also for the reason of
laches. It is contended that though the cause of action accrued to the
appellants on 20th August, 2013 or latest on 8th November, 2013, the writ
petition from which this appeal arises was filed only in May, 2014. It is
argued that the appellants, after learning of the pendency of the other matters
aforesaid have merely taken a chance. It is also informed that though about
20 students had so reached the examination venue late on 20 th August, 2013
but only 9 filed the petition and this appeal.
10. The counsel for the appellants in LPA No.434/2014, after the
judgment had been reserved has handed over copies of the judgments of the
Division bench of this Court in Surender Singh Vs. D.S.S.S.B. 156 (2009)
DLT 766 (DB); U.P. Jal Nigam Vs. Jaswant Singh 2006) 11 SCC 464 and
Bharat Sanchar Nigam Ltd. Vs. Ghanshyam Dass (2011) 4 SCC 374 on
the aspect of the grant of relief to the appellants only even though 20
students had made the representation on the principle of the appellants only
being vigilant of their rights and on estoppel, acquiescence and waiver.
11. The challenge in W.P.(C) No.5214/2013 is to the absence of any
power of relaxation of span period in the respondent Jamia Millia Islamia
University. It is argued that such a rigid provision cannot be sustained. It is
contended that there may be occasions when the candidate / student is
prevented from completing the course within the span period owing to
reasons attributable to the University. It is contended that such a rigid law
cannot be sustained. It is further contended that once it is held so, the facts
of that case which are not in dispute justify the grant of an opportunity to the
petitioner therein to complete the course beyond the span period. It is yet
further argued that the University itself has in the past acted in contravention
of its own Rule and has granted relaxation. It is yet further informed that
even in the Indian Institutes of Technology, relaxation of span period is
permitted. Reliance is placed on Naseem Ahmed Vs. Jamia Millia Islamia
1998 III AD (Delhi) 62 where, inspite of there being no provision therefor in
the statute or the Rules, in the facts of that case extension beyond span
period was granted because the University in the past had been giving such
concession, without however making it a precedent.
12. The counsel for the respondent Jamia Millia Islamia University has
relied on Pradeep Kujur Vs. State of M.P. MANU/MP/1030/2010 where the
challenge to the refusal of the University to declare the result upon
discovering that the student had taken examination beyond the span period
was negatived. Reference is also made to All India Council for Technical
Education Vs. Surinder Kumar Dhawan (2009) 11 SCC 726 on the
proposition that Courts are neither equipped nor have academic or technical
background to substitute themselves in place of statutory professional
technical bodies and take decisions in academic matters and that these are
matters of educational policy from which the Courts should keep their hands
off.
13. The counsel for the petitioner in W.P.(C) No.5214/2013 in rejoinder
contended that the judgment aforesaid of the High Court of Madhya Pradesh
does not apply. He has further contended that Ordinances are delegated
legislation and not merely executive acts but legislative acts and can be
challenged on the ground of arbitrariness. Reliance in this regard is placed
on Man Singh Vs. State of Haryana (2008) 12 SCC 331, Andhra Pradesh
Dairy Development Corporation Federation Vs. B. Narasimha Reddy
(2011) 9 SCC 286.
14. We have considered the issue at hand.
15. At the outset we may state that the students cannot be said to have any
right to complete the course / programme to which they have sought
admission, in whatever time they may deem proper, particularly when the
rules of the University provide otherwise. The students having taken
admission to a University, are governed by the rules and regulations thereof.
They even otherwise have no right to claim that there should be no span
period for completing an educational course / programme or as to what the
said time period should be or whether there should be any provision of
relaxation therein or not. No such right was argued by any of the counsels
inspite of our specifically posing the said query. On the contrary the
Universities are found to be fully empowered to lay down such span period
and/or to determine whether any relaxation with respect thereto is to be
given or not. The appellants/petitioner in fact have not even challenged the
right of the University to so lay down the span period. The validity/vires of
the Appendix II to the Ordinances of the University of Delhi or the
Ordinance 15(xv) of the Jamia Millia Islamia University, both laying down
the span period, is not even challenged.
16. It cannot also be lost sight of that the span period is the outer limit for
completing the educational course / programme and is generally found to be
double the duration otherwise prescribed for the course / programme. The
relaxation /exemption which is being sought is thus found to be inbuilt in the
span period. The arguments thus urged, of the rule/regulation of span period
being harsh, are of no avail. The counsels, inspite of our asking were unable
to cite and we have also not been able to find any principle of law which
mandates making a provision for relaxation of a rule. Man Singh and
Andhra Pradesh Dairy Development Corporation Federation (supra),
referred to in this regard on our prodding have no application. In fact the
very purpose of making a rule and fixing a time limit is to govern the human
conduct and behaviour and once a grace period is inbuilt in the rule, no
argument of the same being harsh can be urged. A Division Bench of the
Bombay High Court in Raymond Synthetics Ltd. Vs. UOI
MANU/MH/0118/1991 while rejecting a contention that though Section
73(2A) of the Companies Act, 1956 did not provide but nevertheless a
discretion to extend the period of payment is inherent therein, reasoned that a
provision to grant a grace period of eight days for making repayment before
the liability to pay interest accrued thereunder was inbuilt in Section 73(2A)
and the Legislature, at the expiry of the grace period having foisted the
liability to pay interest, such liability could not be deferred or postponed and
neither the Stock Exchange nor the Government had the authority to extend
the time of payment. Similarly, a Full Bench of the Madras High Court in
Gawri Spinning Mills (P) Ltd. Vs. Assistant Provident Fund Commissioner
MANU/TN/7502/2006 with reference to Section 14B of the Employees'
Provident Funds and Miscellaneous Provisions Act, 1952 held that the
Parliament as a matter of legislative policy having confined waiver of
damages in certain situations only, the Courts could not extend the immunity
beyond that laid down by the Parliament. Reference may also be made to
Khar Bhan Ram Vs. General Manager, Punjab National Bank
MANU/UP/0168/1992 where in the face of the maximum period of
probation provided in the rules, it was held that any extension of probation
beyond that is void.
17. The reliance placed on Saurabh supra is misconceived. That was a case of
admission to an educational institution, for which a particular date and time was
prescribed and in which prescription there was no provision for relaxation. It was in that
context that the doctrines of act of God, force majeure and impossibility
beyond human control were invoked. That is not the position here. Each of
the appellants in the present case, inspite of having not completed their
respective education courses / programmes within the duration prescribed
therefor, have been already granted extra time to complete the same and what
they are now seeking is beyond the said extra time also. The same if allowed
would make the rule/regulation providing span period redundant. Once it is
not challenged that the University is empowered to provide for the span
period, this Court cannot in exercise of powers under Article 226 give a
direction in contravention of the said rule. The Supreme Court in Maharishi
Dayanand Univeristy Vs. Surjeet Kaur (2010) 11 SCC 159 reiterated that
the Court has no competence to issue a direction contrary to law nor the
Court can direct any authority to act in contravention of the statutory
provisions; the Court cannot be generous or liberal in issuing directions to
authorities to violate their own statutory rules and regulations. The principle
was yet again invoked in State of Bihar Vs. Arvind Kumar (2012) 12 SCC
395.
18. A Division Bench of this Court, on a conspectus of a host of earlier
judgements, in Siddharth Kaul Vs. Guru Gobind Singh Indraprastha
University MANU/DE/6677/2011 (and SLP(C) No. 14706 of 2012 preferred
whereagainst was dismissed by a speaking order dated 11th July, 2013) inter
alia held that in the absence of rules permitting the same, re-evaluation
cannot be directed. Dealing with the argument of discrimination on the
ground that some other Universities provided for re-evaluation, it was held
that a University is always entitled to set a higher benchmark; it is not
without any reason that a handful of Universities of the world qualify to be
in the Ivy League. It was further held that the students, after joining the
University cannot be permitted to compel the University to lower its
standards and that it is the student who opts for the University and not the
other way round; if the student feels that he/she is unable to cope with the
University standards, it is for him/her to opt out and he/she cannot be
permitted to create circumstances which would lead to the University
lowering its standards. It was reasoned that the prospective employers judge
the merits of the prospective employees from their qualifications and in
which University forms a relevant criterion and students of Universities
which maintain high standards command better emoluments than those of
other Universities. It was yet further observed that the students cannot be
permitted to decide the academic policies or seek change thereof to enable
them to get over their own deficiencies.
19. The Supreme Court in Thapar Institute of Engineering and
Technology v. Gagandeep Sharma (2001) 9 SCC 157, also concerned with
rule of promotion in an educational institution, 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.
20. However having said that, we have also wondered whether in fact
there should be a span period. The educational courses/programmes with
which we are concerned are long term courses/programmes spanning over
several years. In such a long time, uncertainties of life can have a play. The
question which arises is, whether the expiry of such a span period should be
allowed to come in the way of desire for education or completing education.
Though in a sense entire life is an educational experience but what is
recognized, to enable a human being to achieve higher pursuits or atleast get
on to a platform to achieve the same, are the educational qualifications. The
Supreme 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. The very
Preamble to our Constitution secures to all the citizens of this country
"fraternity assuring the dignity of the individual......". Education is an
important element of such dignity of the individual. Article 19 of the
Constitution makes the right to practice any profession, a Fundamental Right
and there can be no right to practice profession without education. Infact, the
86th Amendment (of the year 2002) to the Constitution added Article 21A,
makes it obligatory for the State to provide free and compulsory education
between the age of 6 and 14 years. The same spirit is to be found in Part IV
dealing with Directive Principles of State Policy which are also pro-
education. Without education, no citizen can also be expected to perform
any of the Fundamental Duties enshrined in Article 51A of the Constitution.
The native endowments of men are by no means equal. Education provides
for intellectual, moral and physical developments for good character
formation, mobility of social status and an opportunity to scale equality.
Education is a powerful lever to uplift the poor (refer Maharashtra State
Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi
(1991) 2 SCC 716).
21. The Courts also have leaned in favour of a citizen educating
himself/herself by declaring illegal the age limits prescribed for joining an
educational programme or profession or vocation. Recently, vide order dated
11th November, 2014 in Transferred Case (Civil) No. 47/2014 titled H.D.
Sailor Vs. Bar Council of Gujarat and other connected cases, the Supreme
Court upheld the judgments of the High Courts of Madras, Punjab &
Haryana and Rajasthan quashing the rules preventing the persons who had
crossed the age limit of 45 years from enrolling with the Bar Council on the
ground of the same being violative of Article 19(1)(g) of the Constitution
and in accordance with the earlier judgment of the Supreme Court in Indian
Council of Legal Aid & Advice Vs. Bar Council of India (1995) 1 SCC
732.
22. Unfortunately neither of the counsels assisted us on the aspect on a
larger canvas. In our endeavour to find as to what is the practice prevalent
in other countries especially in the Ivy League Universities, though we
found a span period prescribed for foreign students (perhaps to prevent a
foreigner from continuing to stay in the country indefinitely in the garb of
education) but could not find any such provision for the natives. What
emerged was, a practice of acquiring subject-wise credits instead of course-
wise credit as is prevalent here and perhaps for which reason the need for
such span period is not felt with; credit in a particular subject/paper being in
itself the educational qualification for such paper/subject. Certainly the
educationists manning the respective Universities would be in a better
position to judge the same.
23. Education, culture and society, in recent years are evolving rapidly.
The ethos, practices and customs of the past are no good today. The pace of
life and opportunities have also multiplied manifold. Normally a person
should not be tied down for such long duration of three to five years
prescribed for completing an educational programme and should have the
freedom, if in the interregnum has another opportunity, to avail of the same
and the same should not deprive him of completing the course / programme
at a subsequent stage in life. The Supreme Court in Maharshi Mahesh Yogi
Vedic Vishwavidyalaya Vs. State of M.P. 2013 (8) SCALE 541 quoted with
approval Owens and Shaw in their book "Development Reconsidered" as
authoring that the most important element of a literacy programme is not the
programme itself but the incentive to become and remain literate. It was
reiterated that no section of the citizens can be ignored or left behind in the
matter of education because it would hamper the progress of the country as a
whole and that it is duty of the State to do all it could, to educate every
section of citizens who need a helping hand in marching ahead along with
others. In short, education was given the status of national wealth.
Similarly, in Institute of Chartered Financial Analysts of India Vs.
Council of the Institute of Chartered Accounts of India (2007) 12 SCC
210, while dealing with a condition imposed by the Institute of Chartered
Accountants of India on its members from acquiring a qualification as a
Chartered Financial Analyst, it was held that the right to acquire a
qualification being an inherent and human right, cannot be curtailed unless
there exists any statutory interdict therefor. The Supreme Court found it
strange that the Institute of Chartered Accountants should stop its members
from enhancing their knowledge, training and ability by acquiring the
qualification as Chartered Financial Analyst and held such conduct of,
instead of appreciating such aspirations of Chartered Accountants who seek
to widen their know-how and horizons, labeling the same as professional
misconduct, as unreasonable.
24. We find that the rules and regulations, of the two universities, with
which we are concerned, prescribing the span period, to have been
formulated decades back. We do not know whether the Universities /
educationists have relooked at the same in today's context and life. If not,
we feel there is certainly an occasion therefor. More so with the world
shrinking and the international barriers disappearing; our educational system
has to gear up to cater to the current needs rather than continuing to being
run on patterns which were good decades back and which may not be good
today. Recently, a Division Bench of this Court in Govt. of NCT of Delhi
Vs. Sachin Gupta MANU/DE/2360/2013 also observed that with the march
of times the imparting of education at the Graduate level is changing all over
the world and the Directorate of Education should keep in mind that it has to
march in tune with the rest in the onward march in time. A Division Bench
of the High Court of Gujarat also as far back as in Gujarat State Co-
operative Union Vs. Commissioner of Income Tax MANU/GJ/0040/1992
observed that the changing times and the ever widening horizons of
knowledge may bring changes in the methodology of teaching, a shift for the
better and that advancement of knowledge brings within its fold suitable
methods of its dissemination and it may become necessary to have a
different outlook; it is not necessary to nail down the concept of education to
a particular formula or to flow it only through a defined channel - its
progress lies in the acceptance of new ideas. We have also looked up the
rules and regulations of certain newer universities but find the same to be
modelled on the old universities only. We are again not aware whether the
said newer universities while formulating their policies merely aped the
older universities or there was a conscious decision that the decades-old
policies are apt in the modern context also.
25. On the other hand, we are also mindful of the extreme paucity of
educational institutions in the country. In the absence of any span period,
students may indefinitely block seats, other facilities and amenities in the
educational institutions to the prejudice of those becoming eligible for
admission in succeeding years. Allowing an educational course/programme
to be completed at any time, without any limitation, may also pose a
problem where say the course content has changed. Also, there is generally
continuity in the syllabus/curriculum in successive semesters/years of an
educational course/programme and a long break may interfere therewith,
impacting the course/programme.
26. We do not consider ourselves competent or qualified to take a
decision on the aspects which we have highlighted above and we also do not
have available all the materials/factors which may be relevant for taking
such a decision. All the stakeholders are also not before us. We therefore
refrain from judging on the aforesaid two rival aspects. The Supreme Court
as far back as in Dr. Jagadish Saran Vs. UOI (1980) 2 SCC 768 even
though having prima facie found a rule relating to education to be
inappropriate, stopped short of invalidating the same reasoning that the
Court must act on sure ground, especially when matters of policy, socio-
educational investigation and expert evaluation of variables are involved and
held that to doubt is not enough to demolish.
27. We however nevertheless choose to record our own meanderings on
the subject. The Supreme Court in Md. Abdul Kadir Vs. Director General of
Police (2009) 6 SCC 611 held that where an issue involving public interest
has not engaged the attention of those concerned with policy or where the
failure to take prompt decision on a pending issue is likely to be detrimental
to public interests, Courts will be failing in their duty if do not draw
attention of the concerned authorities to the issue involved, though not
making a policy, but acting as catalyst for change. Proceeding on the
premise that a right to complete the education is certainly at a higher
pedestal than the need for the Universities/educational institutions to provide
for the maximum duration for completing an educational course/programme,
we are of the view that ways and means to allow an educational
course/programme to be completed, without at the same time jeopardizing
the quality of educational qualification and affecting the rights of those
becoming eligible for admission in succeeding years, can be devised. For
instance, to ensure that the person so desirous of completing the educational
course/programme has not rusted and/or to ensure continuity, as a pre-
condition, he/she can be subjected to an eligibility test. Thus, the
appellants/petitioners before us who have been unable to complete their
respective educational courses/programmes within the span period provided
therefor, can be asked to appear in a test/examination in the subjects which they have
already passed/cleared, to demonstrate that the continuity if any required, exists. To
get over the issue of such candidates / students blocking seats, facilities and amenities
of the Universities, such facilities can be made available to only those who have the
requisite attendance in all years/semesters but have been unable to pass
the examinations. Yet another thought which comes to us is that instead of a
span period of time, the number of attempts to pass the examination in a
subject can be prescribed. Another possibility can be, to allow such
students/candidates to continue the educational course/programme as
permitted in an Open School/University and to issue a Degree/Certificate to
them, different from a Degree/Certificate issued to others who have
completed the course/programme within the duration prescribed therefor and
to let the employers/others dealing with them to judge their skill/acumen.
We again clarify these are our random thoughts, not intended to bind,
inasmuch as we do not have the entire perspective before us. The purport of
our recording our thoughts is only that if it is found by the educationist and
the universities that time should not be allowed to come in the way of
completing the paper/formal education, then ways can be devised to ensure
that the same fulfils the purpose rather than helping in acquiring a
degree/certificate not more valuable than the piece of paper on which it is
embossed.
28. In this light, the only order which we can make in these proceedings is
to direct the Universities to consider the matter, including in the light of our
aforesaid observations, within a time bound period. Needless to state that if
the outcome is to do away with the span period or to provide relaxation
therein, the appellants/petitioner would be the beneficiaries thereof,
notwithstanding having so become time barred prior thereto. Else, as we
have already observed, appellants/petitioner have no right.
29. As far as the University of Delhi is concerned, what we find strange is
that the same Ordinance X-C (supra), for nearly 35 years, was
construed/interpreted by the University itself as empowering the Academic
Council to relax/grant exemption in exceptional cases vis-a-vis span period.
No material has been placed before us as to what caused the change in
interpretation. The ordinary rule is, for an interpretation/practice long in
vogue, being not disturbed, as consistency, trust, logical and valid and fair
regularity are essential elements of public law. Even the Courts are loath to
depart from an established practice unless it lacks the sanction of law or is
grossly erroneous.
30. We are also disturbed by the fact that though the decision to grant
such exemption/relaxation qua span period was of the Academic Council of
the University, which we are told comprises of 200 members and who we
are sure must be having rich knowledge of academics and education, the
decision to do away the same is of one man only i.e. the Vice Chancellor.
Certainly when 200 minds, we expect, after discussion, concluded and
resolved that Ordinance X-C applies to span period also, the change thereof
by one mind does not inspire confidence. When it is doubtful whether the
power to take an important decision lies with an individual or with a group,
the collective wisdom is generally preferred to individual wisdom. We are of
the view that it is for the Academic Council of University of Delhi to,
besides taking a call as directed above, also consider this aspect. We hope
when all the members of the Academic Council pool their resources/ideas
and deliberate, a right answer will be reached. Reference in this regard may
be made to Lily Kurian Vs. Sr. Lewina (1979) 2 SCC 124 where a blanket
unguided, uncanalised power given to the Vice-Chancellor of the University
to veto the disciplinary action of the managing body of a minority
educational institution was held to be violative of the right of administration
guaranteed under Article 30(1) of the Constitution. We are also of the view
that it would be inappropriate for this Court to interpret Ordinance X-C
before the Academic Council which is better equipped has had an occasion
to consider the same inasmuch as the same is more a matter of policy than
interpretation. A provision of a statute, rule, regulation giving an opportunity
to seek exemption from application thereof cannot be said to be vesting a
right for it to be said that the appellants have a right to be considered. A
person who does not fulfill the qualifications cannot claim, as of right the
grant of exemption. The Supreme Court in State of Rajasthan Vs. J.K.
Udaipur Udyog Limited (2004) 7 SCC 673 held that the recipient of a
concession has no legally enforceable right against the grantor to grant a
concession except to enjoy the benefits of a concession during the period of
its grant. It was held that this right to enjoy is a defeasible one in the sense
that it may be taken away in exercise of the very power under which the
exemption was granted. The defence of the members of the Academic
Council being deemed to have ratified or concurred with the decision of the
Vice Chancellor by not raising the said issue in the meetings, cannot be
accepted. The failure or pre-occupation if any of the members of the
Academic Council in not taking up the matter, cannot be a substitute for a
discussion on the subject.
31. As far as LPA No.434/2014 is concerned, the appellants therein
having admittedly reached the examination hall beyond time, and after
which the rule did not permit them to take the examination, we cannot show
any indulgence, as held by the learned Single Judge also. If the same were to
be permitted it would be an endless exercise. This Court in Aditya Singh Vs.
Indian Institute of Tourism & Travel Management MANU/DE/3261/2010
in the context of attendance held that if the Courts are to interfere when the
deficit is 2.6% , why not when deficit is 5% or may be 10% and that if the
Courts start doing so there would be no end making the rule of attendance
farcical. The Supreme Court in Bhanu Pratap Vs. State of Haryana (2011)
15 SCC 304 held rounding off or giving grace marks so as to bring up a
candidate to minimum requirement being impermissible. It was further held
that somewhere, a line has to be drawn and that line has to be strictly
observed like a Lakshman Rekha and no variation of the same is possible
unless provided in the rule itself. The appellants ought to have been careful
considering that they were aware that it was their last chance which too was
given by way of grace.
32. As far as the argument of the counsel for the appellants, of the
Universities themselves having in the past allowed persons to appear in the
examination beyond span period, is concerned, the same cannot be a ground.
If the rules of the University do not allow so, merely because the University
itself in the past has acted contrary to the rules would be no ground to grant
relief, effectively directing the University to again act contrary to the rules.
The principles of negative equality being not envisaged in Article 14 of the
Constitution of India (see Union of India Vs. M.K. Sarkar (2010) 2 SCC
59) and the Court in exercise of jurisdiction under Article 226 being not
entitled to direct something to be done in contravention of laws, rules and
regulations, negate the said argument.
33. Though the counsel for the appellants in the 12 appeals (supra) also
argued on the aspect of prospectivity but without any particulars, basis or the
dates. However even if it were to be held that at the time when in all the
appellants joined the university, the interpretation of Ordinance X-C as in
vogue prior to the notification dated 10th October, 2012 was in force, the
same in our view would not vest any right in the appellants to avail of the
same interpretation. The principle, as applicable to repeal/amendment of
Statues, Rules and Regulations, does not apply to interpretation thereof. A
change in interpretation of a Statue, Rule, Regulations binds all cases even
though instituted prior to such change. Reference in this regard can be made
to Sarwan Kumar v. Madan Lal Aggarwal (2003) 4 SCC 147. Moreover it
has also been held in State of H.P. v. Himachal Pradesh Nizi Vyavsayik
Prishikshan Kendra Sangh (2011) 6 SCC 597 that a student cannot insist
on the University/Educational Institution not changing its rules and
regulations relating to promotion as in force on the date of his admission.
Also, each of the said appellants on the date of admission were fully in the
know/are deemed to be in the know, of the maximum period in which they
were required to complete their respective courses / programmes and merely
because exemptions were being granted therefrom does not vest the students
with any right to claim such exemptions.
34. The counsel for the petitioner in WP(C) No. 5214/2013 also argued on
the facts. It was argued that the failure of the petitioner therein to complete
the said course within the span period is attributable to the University. The
petitioner therein took admission to the four years' course in B.Tech. (Civil)
in the respondent Jamia Millia Islamia University in the year 2002 and was
promoted to the second year in the year 2003. However, he successively
failed the examination of the second year, as many as three times and
cleared the same finally in the year 2007 when he was promoted to the third
year and was thereafter promoted to the fourth year in the year 2009, which
was the last year of the seven years' span period provided for the said
course. Though the counsel for the petitioner argued that even if, we were to
hold the Rule / Regulation of the said University of not providing for any
exemption from applicability of span period to be valid the matter be
remitted to the learned Single Judge for decision on facts but we are unable
to appreciate, as to on what basis, it is claimed that the University is at fault.
It is claimed that the University, contrary to its Rule, did not allow the
petitioner, an opportunity to improve on his original marks of the years 2003
and 2004 in the subjects which he had passed. However, neither any Rule is
cited in this regard nor did the counsel during the hearing draw attention
thereto. We are unable to find any. Even otherwise, it was for the petitioner
to challenge such action of the University in the relevant year and grievance
with respect thereto cannot be made belatedly, as is being done. We
therefore do not find any factual controversy to be adjudicated to remit the
matter to the learned Single Judge.
35. We accordingly dispose of these appeals/writ petition:-
(I) by directing the respondent University of Delhi to, within three
months herefrom, have the aspects of, (a) need to continue with the
span period; (b) whether Ordinance X-C applies to span period also,
in the meeting of its Academic Council; and to pass a Resolution on
both aspects giving reasons therefor;
(II) by directing the respondent Jamia Millia Islamia University to
have the matter relating to the need for having the span period and if
so, the need to provide for exemption in exceptional cases therefrom,
considered in its appropriate body and to pass a reasoned order
thereon, within three months from today;
(III) by directing the Secretary, Ministry of Human Resource
Development, New Delhi to, in consultation with the educationist, in
an appropriate fora, debate and arrive at a consensus and to lay down
Policy Guideline to be followed by the Universities in the matter of
the need for having a span period for completing the courses/
programmes being offered by the Universities.
A copy of this judgment be forwarded forthwith to the
Secretary, Ministry of Human Resource Development, New Delhi.
Needless to state that all the aforesaid three, while arriving at a
decision as directed, to consider the matter from all perspectives,
including those discussed herein.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE
NOVEMBER 27, 2014
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