Delhi High Court
Thufail & Anr vs University Of Delhi & Ors on 17 July, 2015
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th July, 2015
+ W.P.(C) No. 6282/2015
THUFAIL & ANR ..... Petitioners
Through: Mr. Deepak Prakash, Ms. Shruti
Srivastava & Mr. Venkat, Advs.
Versus
UNIVERSITY OF DELHI & ORS ..... Respondents
Through: Mr. Ankur Chhibber, Adv. for R-1.
Mr. Jogy Scaria, Adv. for R-2.
AND
+ W.P.(C) No. 6325/2015
AAKANKSHA ..... Petitioner
Through: Mr. Bharat Bhushan Jain, Adv.
versus
UNIVERSITY OF DELHI AND ANR. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. S.S. Ahluwalia, Adv. for R-2.
AND
+ W.P.(C) No.6337/2015
AAKASH ..... Petitioner
Through: Mr. Bharat Bhushan Jain, Adv.
Versus
UNIVERSITY OF DELHI & ANR ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. S.S. Ahluwalia, Adv. for R-2.
AND
+ W.P.(C) No.6362/2015
SAUMYA ARYA & ORS. ..... Petitioners
Through: Mr. Tanmay Mehta, Mr. Anunaya
Mehta & Mr. Nikhil Palli, Advs.
Mr. Deepak Prakash, Ms. Shruti
Srivastava & Mr. Venkat, Advs. in
CM No.11797/2015.
versus
MIRANDA HOUSE & ORS. ..... Respondents
Through: Mr. Ankur Chhibber, Adv. for R-1.
Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. Dev. P. Bhardwaj, CGSC for
UOI.
AND
+ W.P.(C) No.6480/2015
AALOK KAMBOJ ..... Petitioner
Through: Ms. Shalini Kaul & Ms. Pushpinder
Singh, Advs.
Versus
SHRI VENKATESWARA COLLEGE & ORS ..... Respondents
Through: Mr. Rajinder Dhawan & Mr. B.S.
Rana, Advs. for R-1.
Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. Abhay Prakash Sahay, CGSC for
UOI.
AND
+ W.P.(C) No.6481/2015
ANKUR RAWAT & ANR. ..... Petitioners
Through: Mr. Deepkaran Dalal, Adv.
Versus
UNIVERSITY OF DELHI & ANR. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. Ankur Chhibber, Adv. for
respondent no.2.
AND
+ W.P.(C) No.6657/2015 & CM No.12141/2015 (for stay)
RAVINDRA KUMAR & ANR. ..... Petitioners
Through: Mr. Deepkaran Singh Dalal and Mr.
Vivek Malik, Adv.
Versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
R-1/DU.
Mr. Ankur Chhibber, Adv. for
respondent no.2.
AND
+ W.P.(C) No.6658/2015 & CM No.12143/2015 (for stay)
MEENAL AGRAWAL & ANR. ..... Petitioners
Through: Mr. Akhand Pratap Singh, Mr.
Tungesh and Mr. Pravesh Sharma,
Advs.
Versus
UNIVERSITY OF DELHI & ANR. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
R-1/DU.
Mr. Ankur Chhibber, Adv. for
respondent no.2.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. All these petitions concern the following Clause in Annexure 1 to the
Notification dated 20th May, 2015 of the respondent University of Delhi
laying down the guidelines and schedule of admission to various
undergraduate courses for the academic session 2015-16.
"Admission to Science Courses
The Basis of Selection for Mathematical Sciences / Science / Home
Science courses remains unchanged. However the subjects to be
included for Basis of Selection (PCM/PCB/PCMB) must have at least
70% component of theory exams (theory exam does not include internal
assessment / continuous evaluation etc.) in the qualifying exam
otherwise a disadvantage of 10% of the maximum marks may be levied
on each such subject."
2. The petitioners in all the petitions are seeking admission to the
respondent University / its affiliate colleges on the basis of having cleared
qualifying examinations held by the Boards of Examination of different
States having less than 70% component of theory examination but
recognized by the respondent University as equivalent to the Senior
Secondary School Certificate Examination (SSSCE) (Class XII) held by the
Central Board of Secondary Education (CBSE). In accordance with the
Clause aforesaid, the respondent University and its affiliate colleges have
levied a disadvantage of 10% on the petitioners and aggrieved wherefrom
these petitions have been filed.
3. Though the grounds on which the challenge is made may be different
in different petitions but having heard the petitions together and being of the
view that the Clause aforesaid, unless discretionary, as has also been
contended, has to be uniformly applied, it is not deemed appropriate to deal
with the challenge in each petition separately depending upon the grounds
taken therein. What is however important to note is that the petitioner in
W.P.(C) Nos.6362/2015, 6657/2015, 6480/2015, 6658/2015, 6337/2015 &
6325/2015 were granted admission in the affiliate colleges but which
admissions were subsequently cancelled, citing the aforesaid clause and
stating that the admissions granted were in ignorance and violation thereof.
4. Since the admissions to the respondent University and its affiliate
colleges are underway and calling for counter affidavits would have made
the petitions infructuous and any interim order reserving seats for the
petitioners would also have interfered with the admission process in general
and affected large number of other admission seekers, with the consent of
the counsels the matters were heard without counter affidavits. It may
however be noticed that while issuing notice of W.P.(C) No.6362/2015 on
4th July, 2014 the operation of the letters dated 1 st July, 2015 of cancellation
of admission of six petitioners therein was stayed and Miranda House
College, respondent therein, restrained from filling up the seats against
cancelled admissions.
5. At one stage of the hearing, on enquiry being made as to the authority
/ power of the University to issue the Notification aforesaid, the counsels for
the petitioners had contended [though no such plea / ground was / is taken in
the writ petitions] that the respondent University had no authority to issue
the said Notification but upon it being pointed out that in that event the
entire admission process to the undergraduate courses for the academic year
2015-16 would be bad, the counsels gave up / waived the said ground and
did not press the same.
6. At the same stage it was also enquired as to how these petitions, if
challenging the vires of the clause aforesaid, were maintainable before this
Bench and would not the same, as per Roster of this Court, be entertainable
by the Division Bench. However the Registry of this Court has drawn
attention to the Listing Guidelines dated 31st January, 2013 to the effect that
writ petitions challenging any Policy, Scheme or Guidelines are to be treated
as not constituting a challenge to the vires of the Act, Rules or Regulations.
7. The counsels for the petitioners have contended:
(i) that the respondent University having prescribed the SSSCE
(Class XII) of the CBSE or an „examination recognized as
equivalent thereto‟ as the qualifying examination for the
purpose of admission to the first year of undergraduate courses
of the respondent University and its affiliate colleges and
having recognized the examinations of the different State
Boards which the petitioners have passed as equivalent to the
SSSCE (Class XII) of CBSE, cannot undo the said equivalence
by levying a disadvantage of 10% of the maximum marks, as
has been done by the impugned clause;
(ii) that the Clause aforesaid by use of the word „may‟ vests a
discretion in the affiliate colleges of the respondent University
to levy or not to levy the disadvantage of 10% of the maximum
marks and the said clause cannot be said to be mandatory or
binding on all the affiliate colleges;
(iii) that the affiliate colleges of the respondent University who have
granted admissions to the petitioner in W.P.(C) Nos.
6362/2015, 6657/2015, 6480/2015, 6658/2015, 6337/2015 &
6325/2015 have thus exercised and / or are deemed to have
exercised the discretion not to levy the said disadvantage of
10% and having once waived the said Clause cannot as an
afterthought apply the same and cancel the admissions already
granted;
(iv) that the admissions already granted cannot be cancelled as no
fault is attributable to the students and the mistake even if any
is of the affiliate colleges;
(v) that the petitioners who have been granted admission, have on
the basis thereof changed their position and have not availed of
opportunities then available for admission to other universities
and the affiliate colleges of the respondent University are now
estopped from contending to the contrary and cancelling the
admissions; reliance is placed on Ruchika Duggal Vs. AIIMS
2012 SCC Online Del 208 LPA No.470/2012 preferred
whereagainst was dismissed by the Division Bench on 4th July,
2012;
(vi) that the aforesaid Clause even if mandatory and binding on all
the affiliate colleges of the respondent University, is applicable
only to the internal assessment / continuous evaluation
component of the examination and if the same is 30% or less,
the said Clause has no application; it is argued that the marks of
the practical examination which are assessed not by internal
examiners but outside examiners would have to be counted in
theory examination;
(vii) that the aforesaid Clause amounts to impermissible
discrimination based on region;
(viii) that the aforesaid Clause in effect ousts the students, who
though have qualified an examination recognized as equivalent
to the CBSE (Class XII) examination, from admission to
respondent University inasmuch as with the prevalent state of
cut offs, with a disadvantage of 10% no admission can possibly
be expected; the Courts cannot be oblivious of the said effect of
the Clause;
(ix) that the Scheme of Examination is in the hands of the State
Boards and the students have no control thereover and cannot
be made to suffer for the State Board Examinations which they
have qualified having a theory component of less than 70%;
(x) that the aforesaid Clause is arbitrary in as much as it though on
the one hand lays emphasis on the result of theory examination
by levying a disadvantage of 10% on students whose qualifying
examination has less than 70% component of theory
examination and on the other hand ousting as aforesaid from
admission a student who though may be having 100% marks in
the theory examination, even if component thereof is of less
than 70%;
(xi) that the aforesaid clause has to be interpreted as vesting a
discretion in the affiliate colleges to admit such students who
notwithstanding the theory component of the examination being
less than 70%, have secured cent percent or high marks therein
or in whose marks in theory and in practical or in continuous
evaluation, there is no huge difference;
(xii) that in Science courses to which the aforesaid Clause is
applicable, a practical examination conducted by an outside
agency is also a test of knowledge and the levying of
disadvantage for a more than 30% component of practical
examination is arbitrary; reliance in this regard is placed on
Francisco D Luis Vs. Director, Board of Secondary and
Higher Secondary Education and the State of Maharashtra
2008 LawSuit (Bom) 3400 and on the final report on Quality in
School Education prepared by the Institute for Studies in
Industrial Development for Quality Council of India;
(xiii) that the respondent University, being a Central University,
cannot give preference to the CBSE Board and discriminate
against other Boards;
(xiv) that the aforesaid Clause ought to be interpreted at best as
excluding the marks of internal assessment and / or continuous
evaluation and not marks of practical examinations held in
Science subjects and which practical examinations marked by
external examiners and not by the schools in which the
petitioners have studied; owing to involvement of an outside
agency, there is no scope of favoritism in the marking in the
practical examination;
(xv) that the other State Universities are treating the CBSE at par
with the State Boards of examination and the situation has to be
the same all over;
(xvi) that there is no basis for adopting the pattern of CBSE as the
criteria;
(xvii) that even if it were to be held that the respondent University has
a valid basis for judging the merit of the candidates on the basis
of result the theory examination only, even then the solution
applied thereto of levying a disadvantage of 10% of the total
marks on the student in whose qualifying examination the
component of theory is less than 70% is arbitrary and bears no
rational nexus to the object sought to be achieved; it would be
understandable if the respondent University judges the
comparative merit on the basis of the marks secured in the
theory paper, by treating the component thereof whether of 70%
as in CBSE or of 60% or 50% as in some other qualifying
examinations subject matter of these petitions, as 100%;
alternatively it is suggested that the deduction should only be
from the marks in internal assessment or continuous evaluation
or in practicals by 10%, and by not levying deduction of 10% of
the total marks; yet alternatively it is suggested that a formula
for giving equivalent weightage should be devised (I may
notice that this argument has been raised only by the counsel
for the petitioners in W.P.(C) Nos.6325/2015 and 6337/2015
but was subsequently adopted by other counsels as well);
8. I may notice that applications for impleadment have been filed in
W.P.(C) No.6362/2015 and in W.P.(C) No.6282/2015 by candidates
claiming to be similarly placed as the petitioners therein and claiming the
same relief.
9. The counsels for the respondent University argued:
(a) that all the petitions do not even challenge the validity of the
Clause and the challenge in W.P.(C) Nos.6325/2015 and
6337/2015 is not even to the current notification but to the
notification of the previous year though identical.;
(b) it is not as if the aforesaid Clause has been sprung as a surprise
on the students; it was in force in the previous year as well and
is also contained in the Bulletin of Information for Admission
to Undergraduate Courses for the academic session 2015-16
released by the respondent University as far back as on 19 th
May, 2015;
(c) no challenge thereto was made by any of the students;
(d) the first of such challenges in these petitions came up before
this Court only on 30th June, 2015 i.e. after the first list of cut
off marks for admissions had been released on 25th June, 2015
and admissions pursuant thereto been made; on 30th June, 2015,
the second list of cut off marks had been released and
admissions pursuant thereto also have been completed; that the
third list of cut off marks also stands released on 4th July, 2015
and admissions in pursuance thereto also stand completed;
(e) any interference with the Clause aforesaid at this stage would
create chaos, unsettling the entire admission process and would
require the entire process of admissions to begin afresh,
delaying the commencement of the academic session;
(f) that there are 45 different Boards of Examination in the country
and each of which follows its own pattern, with the component
of theory examination varying from 20% to 70%;
(g) that in comparison, CBSE, even in subjects of Music and
Painting has a theory component of 60% -- the disadvantage of
10% in terms of aforesaid Clause is applied even to those
though passing CBSE examination but in the said subjects
having a theory component of less than 70%; it is thus not as if
the respondent University gives preference in any manner to the
CBSE; the respondent University is applying the aforesaid
Clause uniformly;
(h) because of such disparity in the different Boards of
Examination, it becomes essential for the respondent University
to adopt such a criteria;
(i) that the criteria of CBSE of 70% component of theory in most
of its subjects has been accepted because CBSE conducts
examinations all over the country and has the widest spectrum
in comparison to the State Boards of Examination;
(j) that the respondent University cannot possibly be expected to
harmonize the pattern of examination of all the Boards and has
to necessarily evolve its own method;
(k) reliance is placed on para 6 of Anvita Singh Vs. Union of India
2012 III AD (Delhi) 133 to contend that the possibility of abuse
is no ground to set aside the otherwise valid criteria adopted;
(l) that the petitioners having participated in the selection process
on the basis of the Bulletin of Information aforesaid are now
not entitled to challenge any clause thereof;
(m) that the Clause ought not to be quashed and the selection
criteria adopted ought not to be set aside at this stage when
most of the seats in the respondent University and its affiliate
colleges have already been filled up and the admittees whereto
would be affected by the said outcome, at least without
impleading them;
(n) that there is an intelligible rationale to the aforesaid procedure
adopted; it is common knowledge that the results of internal
assessment / continuous evaluation or of practical examinations
even if with outside examiners cannot be said to be totally
objective and element of subjectivity is bound to and definitely
creeps in therein;
(o) that the argument, that the Clause aforesaid does not exclude
practical examination and only excludes internal assessment
and continuous evaluation, is contrary to the emphasis therein
by use of the words "must have at least" and of the phrase
"theory exams" which has a definite connotation and which is
understood as excluding practical examination;
(p) that the word "may" in the aforesaid Clause has to be read as
"shall"; finding that some of the affiliate colleges were making
admissions in contravention thereof, a letter dated 29 th June,
2015 by the Dean Students‟ Welfare Office of the respondent
University was also issued informing the colleges to enforce the
said Clause; the colleges thus do not have a discretion to apply
or not to apply the aforesaid Clause;
(q) that the respondent University has a centralized process for
admission to undergraduate courses in its affiliate colleges and
the Clause aforesaid being contained in the Bulletin of
Information published by the respondent University, the
contention that the affiliate colleges have a discretion to apply
or not to apply the aforesaid Clause is misconceived;
(r) it is the respondent University which has been announcing the
cut off marks for admissions at the successive stages and the
role of the affiliate colleges is confined merely to admitting
students having marks above the said cut off;
(s) Guideline 4 in the Notification dated 20th May, 2015 (supra)
also provides "There shall be no „Additional Eligibility
Criterion‟ for any category in any college / course" - this
Clause is not under challenge;
(t) it is not as if the impugned Clause or the Notification dated 20 th
May, 2015 (supra) of which it is a part has been issued without
deliberation; in view of the complaints of disparity in the
examinations held by different State Boards, the respondent
University constituted a Committee of 30 Experts including
members of Administrative Council and Executive Council,
headed by Justice (Retd.) S.K. Aggarwal and which Committee
submitted its report on 30th March, 2014 and which report was
accepted by the respondent University in April, 2014 and
whereafter the identical Notification for the academic year
2014-15 was issued;
(u) it is settled principle of law that the decision of the Academic
Experts who have devised academic / educational policy after
deliberation, should not be interfered with merely because
another view may be possible;
(v) attention is invited to the Guidelines contained in Ordinance II
of the respondent University to contend that the eligibility
conditions prescribed by the respondent University for
admission and selection of candidates are binding on the
affiliate colleges;
(w) attention is invited to paras 31 to 33 and 53 of Dr. Vibha Jain
Vs. The Director National Board of Examination
MANU/DE/7380/2007 to contend that allocating high
percentage of marks to viva voce for admission to
undergraduate courses should be avoided as there is a certain
amount of arbitrariness which may lead to frustration of the
very object of selection and disrepute the system;
(x) that the admission of the petitioners who were mistakenly
admitted in violation of the aforesaid Clause, was cancelled
immediately within one to seven days of admission and the
students asked to take back their original documents, for using
the same for admission to other courses at other places;
(y) attention was invited to the Handbook of Information for the
year 2015-16 published by Dayal Singh College (respondent in
W.P.(C) No.6337/2015 and W.P.(C) No.6325/2015) to show
that the admissions granted in any case were provisional, till
verification of documents;
(z) that the reliance placed by the counsel for the petitioner in
W.P.(C) No. 6282/2015 on Francisco D Luis (supra) is entirely
misplaced inasmuch as the same is merely an order of reference
to a third Judge, on a dichotomy of opinion of the Judges of the
Division Bench;
(aa) that all the petitioners are from outside Delhi; admissions to
colleges / universities in other States are still open; it is thus not
as if even those petitioners who were wrongly admitted and
whose admissions have since been cancelled will end up losing
one year; it is just that they would not be able to get admission
to the respondent University which appeared to be their first
choice; and,
(bb) reliance is placed on Arpit Singh Vs. GGSIU 184 (2011) DLT
119 to contend that misplaced sympathy with the students
should not be a ground to interfere with the decision of the
academic experts.
10. The counsels for the respondent Colleges have adopted the arguments
of the respondent University.
11. The counsels for the petitioners in rejoinder have argued, (i) that the
arguments of the counsel for the respondent University of selected
candidates being not before this Court does not apply to students who were
admitted and whose admissions have been thereafter cancelled; (ii) that in
the impugned clause, the expression "must have" is viz-a-viz the 70%
component of theory but the expression "may be" is used before providing
for the levy of 10% disadvantage; thus though the component of 70% in
theory is a must for admission at par with CBSE but the levy of 10%
disadvantage has been left to the discretion of the college; (iii) that the
argument of delay and laches also cannot be applied viz-a-viz the petitioners
who were granted admission and whose admission has subsequently been
cancelled in as much as the cause of action to them accrued only when the
colleges as an afterthought cancelled the admission and immediately
whereafter this Court has been approached; attention is invited to the
Admission Brochure for the year 2015-16 of Miranda House College where
the admission granted is not shown as provisional but it is rather stated that
the admission is complete on payment of fees, issuance of role number and
identity card and all of which has been done; (iv) that the last date for
applying for admission to Kurukshetra University is already over; (v) that it
has been held by this Court in Ruchika Duggal Vs. AIIMS that for a default
of the institution, the student should not be made to suffer; (vi) that there is
no uniformity in the criteria for admission in all the colleges and each
college has its own criteria of admission; and, (vii) that the modern view is
that theory examination cannot be the only basis of examination, specially in
Science subjects.
12. The counsel for the respondent University has added that the
admissions being centralized, the colleges are not even required to publish
their prospectus. Attention has also been drawn to Ordinance- XVIII Clause
6-A (5)(a)(v) and 6-A (5)(b)(ii) to contend that the criteria for admission
prescribed by the respondent University is binding on the affiliate colleges.
13. I have weighed the rival contentions and am unable to agree with the
counsels for the petitioners for the reasons following:-
A. The applicants for admission to the respondent University and /
or its affiliate colleges are deemed to be aware of the contents
of the Information Bulletin 2015-16 for admission to
undergraduate courses, listing the courses offered for
admission, requirements for admission, qualifying examination,
age requirement, equivalence criteria, grade conversion and
procedure for calculation of „Best of Four‟ (admission to
Science courses). There is no reason to disbelieve the stand of
the respondent University and the colleges that the impugned
clause is also to be found in the Information Bulletin on the
website of the respondent University.
B. The petitioners are thus deemed to have applied for admission
to the respondent University and its affiliate colleges with
knowledge of the aforesaid clause i.e. of levy of disadvantage
of 10% of the total marks while considering them for
admission.
C. The cut-off marks above which admissions are made to the
respondent University and its affiliate colleges in the previous
year / s are widely reported in the news media. The petitioners
themselves have admitted that with the levy of the 10%
disadvantage, they would possibly have no chance of admission
and would be ousted from admission in the respondent
University and its affiliate colleges. The petitioners thus, at the
time of applying for admission, with the knowledge of the cut-
off marks of previous year and of the clause aforesaid, are
deemed to have merely taken a chance while applying for
admission to the respondent University and its affiliate colleges.
D. When the petitioners are found to have taken a chance, they
cannot in any way be said to be sufferers, upon failing such a
chance.
E. The Supreme Court in Madan Lal Vs. State of J& K (1995) 3
SCC 486 held that when a candidate who takes a calculated
chance to get himself / herself selected without protesting
against the procedure therefor, cannot, when ultimately fails
therein turn around and challenge the procedure. Again, in
Manish Kumar Shahi Vs. State of Bihar (2010) 12 SCC 576 it
was held that such conduct of a petitioner, of taking a chance,
disentitles him / her from invoking the jurisdiction under
Article 226 of the Constitution of India and the High Court
should refuse to entertain the writ petition. The same view has
been reiterated recently in Ramesh Chandra Shah Vs. Anil
Joshi (2013) 11 SCC 309 and followed by a Division Bench of
this Court recently in Rajesh Kumar Vs. State Bank of India
MANU/DE/0310/2015.
F. No merit is found in the contention of the petitioners, of being
under the impression that the impugned clause was directory
and not mandatory. The argument, that owing to the use of the
word "may, the clause has to be read as directory and not
mandatory, is an argument of law which has been taken in the
Court of law and it is not the case of any of the petitioners that
they or any of them prior to deciding whether to apply for
admission or not obtained any legal opinion as to the
interpretation of the said clause. It is also not the case of any of
the petitioners that they, before applying for admission, made
any queries from the respondent University or any of the
colleges whether they intended to apply the said clause or not.
G. Even if the argument of the petitioners, that they believed the
said clause to be directory, is to be accepted, their applying for
admission would still remain a chance in as much as even as
per their case it was up to the colleges to apply or not to apply
the said clause. It is not the case of the petitioners that they
received confirmation from any of the colleges that the
impugned clause will not be applied.
H. Supreme Court in Dr. Preeti Srivastava Vs. State of Madhya
Pradesh (1999) 7 SCC 120 held that the criteria for selection of
candidates has an important bearing on the standard of
education. The contention that the rules for admission do not
have any bearing on the standards was negatived. Similarly a
Division Bench of which the undersigned was a Member in
Siddharth Kaul Vs Guru Gobind Singh Indraprastha
University MANU/DE/6677/2011 also observed that a
University is always entitled to set higher bench mark and it is
not without any reason that a handful of universities of the
world qualify to be in the Ivy League. I have similarly in
Gitarattan Institute of Advanced Studies and Training Vs.
Director Higher Education MANU/DE/2730/2010 also
elaborately dealt with the role of the university and held that
eligibility for admission has a connection with the standard of
education and prescription of standards of education is always
accepted to be an appropriate exercise of power by the bodies
such as the universities granting affiliation.
I. Look at this perspective also, there is nothing strange in the
respondent University prescribing the mode of selection for
admission to undergraduate courses in Science and there was no
scope for anyone to believe that the affiliate colleges were free
to follow their own selection criteria.
J. It cannot be lost sight of that the admissions to the respondent
University and its affiliate colleges were centralized, with a
single admission form prescribed by the respondent University
being required to be filled and with the students being not
required to at all approach the affiliate colleges for admission.
Once the admissions are found to be centralized, with common
rules for admission to all the affiliate colleges being laid down,
no reasonable person could have formed an opinion that the
aforesaid clause is not mandatory but directory.
K. All the affiliate colleges of the respondent University also have
understood the impugned clause as mandatory and not as
directory. Though some of them made admissions in
contravention thereto but immediately upon the mistake being
pointed out, not only admitted the mistake but also cancelled
the admissions made in contravention thereof.
L. There is no reason to prefer the understanding of the students‟
seeking admission of the said clause, over the understanding of
the respondent University and the affiliate colleges, of the
selection criteria prescribed.
M. No inconsistency is found in the impugned clause and in the
clause in the prospectus / information bulletin providing that
the qualifying examination for the purposes of admission shall
be Senior Secondary School Certificate Examination (Class
XII) of the CBSE or an examination recognized as equivalent
thereto. Recognition by the respondent University of the Senior
Secondary School (Class XII) examination held by the State
Boards as equivalent to that held by CBSE and the resultant
recognition by the respondent University of the said State
Board examination as qualifying examination for admission to
undergraduate course in the respondent University and its
affiliate colleges does not in any manner prevent the respondent
University from laying down the admission criteria. While one
is a matter of eligibility for admission, the other is a process for
selection from amongst all eligible. Mere adoption by the
respondent University, for the purpose of selection criteria, the
percentage of theory component in an examination as that
prescribed by CBSE for most of the subjects does not mean that
the respondent University is tinkering with the recognition of
examination held by State Boards as equivalent to that held by
CBSE. The impugned clause, neither is with reference to
examinations held by State Boards only nor is it the case of the
petitioners that the same is not applied to CBSE examination
even if having component of less than 70% in theory. On the
contrary, it is the un-rebutted stand of the respondent University
that the said clause is uniformly applied. There is thus no merit
in the contention that the impugned clause is contrary to the
clause making the examination conducted by the State Boards
equivalent to the (Senior Secondary School Certificate
Examination of the CBSE).
N. A challenge to a clause on the ground of arbitrariness and
unreasonableness, within the meaning of Article 14 of the
Constitution of India, cannot be adjudicated without inviting
counter affidavits. The said position, during the course of
hearing was made known to the counsels for the petitioners and
an option was given to them to, if press for a finding thereon,
agree to opportunity for filing counter affidavits to the
respondent University and the affiliate colleges. However for
the sake of expediency, since owing to the delay in decision, the
petition would have become infructuous, they agreed to this
Court not rendering any definite judgment on the said
arguments.
O. However on the prima facie view of the matter, no arbitrariness
is found in the decision of the respondent University to provide
for levy of disadvantage on the results of an examination, the
component of theory wherein is less than 70%.
P. It is for this reason only that the Courts, as noticed in Ashok
Kumar Yadav Vs. State of Haryana (1985) 4 SCC 417 held
that allocation of 22.2% marks for viva voce test, though
conducted by external agencies, was excessive and
unreasonably high, tending to leave room for arbitrariness. In
Vishnu Biswas Vs. Union of India (2014) 5 SCC 774 also, it
was also observed that the Courts have always frowned upon
prescribing higher percentage of marks for interview even
when the selection has been on the basis of written test as well
as interview. This is more so, for purpose of admission in an
educational institution. Reference in this regard may also be
made to Minor A. Peeriakaruppam Vs. Sobha Joseph (1971)
1 SCC 38 observing that even when the interviews are
conducted by impartial or competent person on scientific lines,
very many uncertain factors like the initial nervousness on the
part of some candidates, the mood in which the interviewer
happens to be and the odd questions that may be put to the
persons interviewed may all go to affect the result of the
interview.
Q. Notice may also be taken of Maharashtra University of
Health Sciences Vs. Paryani Mukesh Jawaharlal (2007) 10
SCC 201 where the contention of the University, that the
intention of the Regulation Making Authority was to give the
dominant and pre-eminent position to the examination where
students are assessed by external examiners in an objective
manner and that in an internal assessment, an element of
subjectivity is likely to creep in and thus the weightage to be
given to internal assessment has to be restricted, was accepted.
R. It cannot also be lost sight of that not only the schools compete
with each other for best results but even the Boards of
Examination aspire to produce the best of the results, in a game
of upmanship, and all of which results in the examiners desiring
to, wherever possible, award high marks in internal assessment
/ continuous evaluation / practical marks. It is thus only the
examination in theory, in which the identity of the examinee is
not disclosed to the examiner, that objectivity in result can be
achieved.
S. There cannot thus be said to be any arbitrariness in the decision
of the respondent University to, while selecting from amongst
eligible candidates, levy a disadvantage on the scores of
candidates the qualifying examination taken by whom had a
component of theory of less than 70%.
T. Even otherwise this is a decision of the academic / educational
experts and with which it is the settled principle of law, the
Courts would not ordinarily interfere.
U. Supreme Court, in Sanchit Bansal Vs. The Joint Admission
Board (2012) 1 SCC 157, observed that the process of
evaluation and selection of candidates for admission with
respect to their performance, process of achieving the objective
of selecting candidates who will be better equipped to suit the
specialized courses, are all technical matters in academic field
smf the Courts will not interfere in such processes.
V. There is however some merit in the contention that the formula
adopted by the respondent University in the aforesaid clause to
levy a disadvantage is arbitrary. Prima facie merit is found in
the contention of the counsels for the petitioners in W.P.(C)
No.6325/2015 and W.P.(C) No.6337/2015 that even if the
marks scored in internal assessment / continuous evaluation /
practical examination are to be disregarded, levy of
disadvantage of 10% of the total marks works injustice to the
students whose qualifying examination has less than 70%
component of theory. Again, it prima facie appears, that such
students should be graded on the basis of the marks scored by
them in theory examination even if component thereof is less
than 70% but which theory examination the respondent
University itself treats at par with the theory examination of the
CBSE. However as aforesaid, in the absence of counter
affidavits and which owing to the urgency expressed were not
called for, no definite finding in this regard can be returned.
We, in the absence of counter affidavits, do not know the
conditions which prevailed with respondent University in
devising the criteria so. The Supreme Court in Union of India
Vs. Shah Goverdhan L. Kabra Teachers' College (2002) 8
SCC 228 held that Courts, before interfering, have to give due
weightage to the reasons which prevailed with the experts.
Without counter affidavits, we do not know such reasons. All
that can be done is to direct the respondent University to at least
three months before the commencement of admissions for the
next academic session, re-consider the said aspect and to
publically announce its decision thereon including by
communicating it to the various State Boards of Examination
for further dissemination to the students who would be eligible
and aspiring for admission in the next academic year.
W. The argument raised by petitioners, of estoppel is also
misconceived. For a plea of estoppel to succeed there has to be
first a representation as to a certain state of affairs. It is not the
case of petitioners that the University or colleges represented
that the clause aforesaid would not be applied. The plea of the
petitioners, of their having interpreted and understood the
caluse so has already been negatived above.
X. A Division Bench of this Court in Siddharth Kaul (supra) also
held that mere payment of fee would not create any rights in
favour of students and that the principle of estoppel do not arise
when the petitioners are fully aware of the situation. Notice
may also be taken of National Board of Examinations v. G.
Anand Ramamurthy (2006) 5 SCC 515 laying down that the
principle of legitimate expectation has no application in such
matters.
Y. There is similarly no merit in the argument, of the impugned
clause discriminating one region from another. There is no
discrimination without showing that the persons discriminated
against are equally situated. Candidates who have scored high
marks owing to an element of subjectivity in the qualifying
examination which they have passed cannot be said to be
similarly placed as candidates who have passed their qualifying
examination with a lower element of subjectivity. Moreover, as
aforesaid, the impugned clause is applied uniformly, even to
subjects of CBSE having less than 70% component in theory.
Even otherwise, Universities, as institutions of learning, are
entitled to lay down the criteria for selection of their students
and which criteria owing to vastness of the country and the
different Boards of Examination cannot possibly be uniformly
applied to all.
Z. That brings me to the students who were mistakenly admitted
by the colleges and whose admissions have been cancelled.
After giving considerable thought to the said cases I am of the
view that no special class of such students can be carved out, by
allowing their admissions to stand inspite of otherwise
dismissing the petitions. It cannot be lost sight of that they took
a chance as aforesaid. It cannot thus be said that they are
innocent or have been entrapped. It cannot also be lost sight of
that their admissions are illegal and contrary to the eligibility
criteria prescribed by the respondent University. An admission
to an educational institution which is contrary to the conditions
prescribed therefor, is illegal and void and does not vest any
right in the student who has been so admitted. Supreme Court,
in State of Orissa Vs. Mamta Mohanty (2011) 3 SCC 436 held,
though in the context of appointment but also discussing
admissions in the field of education, that if a candidate does not
fulfill the criteria, the appointment is void and cannot be
regularized.
ZA. If we were to hold that an admission contrary to the Rules &
Regulations governing the same and which is thus illegal, once
effected vests a right in the student who has been so admitted, it
can lead to grave consequences. Admissions are generally and
largely conducted by the clerical and administrative staff of the
colleges and University. The possibility of the said staff or even
of lecturers and professors of the University making an
admission which ought not to have been made, and which
admissions are highly coveted, with the intent of vesting a right
in a student so wrongly admitted cannot be ruled out.
ZB. It cannot also be lost sight of that such wrongful admission is
always to the prejudice of a candidate who is rightfully entitled
thereto and whose career may be marred on being deprived
thereof. The Court cannot be blind to the fate of such deprived
student. For this reason, a myopic view of the plight of the
petitioners whose admission is cancelled, cannot be taken.
ZC. It cannot also be lost sight of that the petitioners wrongfully
admitted and whose admission on detection of wrong has been
cancelled, are themselves contributory to the commission of
wrong. They, as aforesaid, were aware or are deemed to be
aware of the clause aforesaid and ought not to have approached
the colleges for admission claiming to have marks above the cut
off announced, without levying the disadvantage prescribed.
The colleges proceeded to admit them presuming that they were
rightly claiming to have above the cut off marks prescribed.
Had the said petitioners levied the disadvantage prescribed,
they could not have claimed having above the cut off marks
announced.
ZD. I am even generally of the opinion that a time has come for our
country to strictly enforce rules and regulations, the challenge
to validity whereof is negatived, and not allow deviations
therefrom on any account whatsoever. Till now, not only the
authorities concerned but also the Courts have been liberal in
allowing such deviations, in the name of justice, to avoid
hardship, doing equity, estoppel, special case, position having
become irreversible and the like. It is not as if this trend was
without any cause. We were a nascent democracy with long
lineage of servitude to foreign rule and a new set of laws, rules
and regulations and a large illiterate population not well versed
in exercising their rights and options. Most of the other legal
systems of the world are not found to be exercising such powers
of grant of relief or concession inspite of not finding the
petitioner entitled thereto under the laws, rules and regulations.
However, now there is no need for continuing this practice,
particularly where highly literate students with more literate
parents guiding them are competing for admission to elite
educational institutions. Non-enforcement of laws, rules and
regulations and frequent deviations therefrom, in my view, has
led to the country having a weak governance and rule of law
and which appears to be the root cause of all the maladies
facing the country. A student, who inspite of being not entitled
to admission is allowed to retain the admission wrongly given
to him and to which wrong he himself also is a contributory,
will grow into a citizen with this understanding only of the
country and its administration and in whatever vocation he / she
chooses, continue to be guided by this philosophy only that
whatever is achieved, even if by hook or by crook,, cannot be
taken back from him. It is such frequent application of
considerations of mistake and the consequent injury on account
thereof for allowing deviations from laws, rules and regulations
which has led a large section of the population to repeatedly
and intentionally commit mistakes, knowing that the action
mistakenly done would attain permanence. The same can no
longer be permitted.
ZE. Even otherwise it is settled principle of law that a person who is
equally guilty of the illegality or mistake committed
cannot be permitted to derive any advantage thereof. The
petitioners were aware and / or are deemed to be aware of their
having no chance of admission owing to levy of the
disadvantage aforesaid. They, at the earliest did not say that the
said disadvantage ought not to be levied on them. They now
cannot be heard to say that admission wrongly or mistakenly
granted to them should be sustained.
ZF. There is yet another aspect. Having held the petitioners not
eligible to admission and having been wrongly admitted, no
direction to the respondent University to, in contravention of its
rules aforesaid, not cancel the admission, can be issued.
Supreme Court, in Maharishi Dayanand University Vs. Surjeet
Kaur (2010) 11 SCC 159 reiterated that the High Courts, under
Article 226 of the Constitution are required to enforce rule of
law and not pass order or direction which is contrary to what
has been injuncted by law, rules and regulations.
14. All the petitions are accordingly dismissed. The interim order granted
in WP(C) No. 6362/2015 is vacated. Though the interim order as aforesaid
was only in WP(C) No.6362/2015, it is further clarified that whichever
respondent Colleges have not made admissions against the admissions which
have been cancelled and which cancellations were impugned in these
petitions, shall now be entitled to do so. A direction is however issued to the
respondent University to reconsider the clause aforesaid in terms of para
13.V.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 17, 2015
„gsr‟ / pp
