Delhi High Court

Aatisha vs University Of Delhi & Anr on 14 October, 2015

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 14th October, 2015.

+          W.P.(C) No.6550/2015 & CM No.11923/2015 (for directions)

       AATISHA                                               ..... Petitioner
                          Through:     Mr. D.N. Goburdhan, Mr. Balaindu
                                       Shekhar, Mr. Vivake Jaiswal and Ms.
                                       Somya Rathore, Advs.

                                Versus

    UNIVERSITY OF DELHI & ANR                 ..... Respondents

Through: Mr. Amit Bansal, Ms. Seema Dolo and Mr. Akhil Kulshrestha, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition, (i) impugns the Guidelines of the respondents No.1&2

University of Delhi which debar the third year students of V th and VIth

Semester of Bachelor of Arts (BA) (Honours) Undergraduate Programmes

from giving their Supplementary Examination of Essential Repeat; (ii) seeks

a direction to the respondents University to conduct the Vth and VIth

Semester Essential Repeat examination and declare the result of

Undergraduate BA Programme students on or before 30 th September of each

year; (iii) impugns the amendment vide Notification dated 14th June, 2010 to

Ordinance VIII to the Delhi University Act, 1922 pertaining to

Supplementary Examination in Undergraduate Courses for Vth and VIth

Semester as arbitrary, unreasonable and violative of Articles 14 & 21 of the

Constitution of India; (iv) seeks a direction for Supplementary Examinations

to be taken in the same academic year for the final year students of BA

(Honours); (v) seeks a direction to the respondents University to conduct V th

and VIth Semester Supplementary examinations and declare results of the

same before October of the same year, so that the Degree of BA (Honours) is

given to the students who give the Supplementary Examinations in the same

year; and, (vi) seeks a direction that the Degree awarded to such BA

(Honours) students to relate back to the same academic year.

2. The petition accompanied with an application for interim relief

directing the respondents University to conduct and hold Supplementary

Examination for Vth / VIth Semesters and declare the result of the same by

30th September, 2015 came up first before this Court on 10 th July, 2015 and

after a couple of adjournments came up for admission on 17 th July, 2015.

However, the counsel for the petitioner, after some arguments on that date

stated that he is not pressing the petition for the relief for the year 2015 and

desired the petition to be decided after a counter affidavit is filed. On the

contention of the counsel for the petitioner that there was no reason for the

respondents University to, while allowing students to appear in

Supplementary Examinations of the subject till of the IVth Semester in

September of the same academic year and not allowing the students

completing their course of the final year to take the Supplementary

Examination in the same year, notice of the petition was issued. The

petitioner thereafter sought for amendment of the petition and which was

allowed. Counter affidavit has been filed by the respondents University and

to which rejoinder has been filed by the petitioner. The counsels for the

parties were heard on 31st August, 2015 and judgment reserved.

3. It is the case of the petitioner:

(a) that she joined BA (Honours) History Programme with Lady

Shri Ram College for Women affiliated to the respondents University

in the year 2012 and was promoted to the second year of the said

Programme in the year 2013 and to the third and final year of the said

Programme in the year 2014;

(b) that as per "Passing Scheme and Promotional Criterion for

Undergraduate Courses in Semester Mode in University of Delhi"

"6. Student who has to reappear in semester I/III/V can appear in the semester examination to be held in November/December.

7. Student who has to reappear in semester II/IV/VI can appear in the semester examination to be held

in April/May."

(c) that there is no reason for the respondents University not

allowing Supplementary Examination for third year students to be

conducted in the same academic year;

(d) that not allowing the third and final year students to take

Supplementary Examination in the same year wastes their entire year;

(e) that the third year students have been arbitrarily denied taking

the Supplementary Examination in the same year as first and second

year student have been allowed;

(f) that all the other reputed Universities of India including (i)

Presidency University (Calcutta); (ii) Jadavpur University (Kolkata);

(iii) Mumbai University; (iv) National Law University (Jodhpur); (v)

National Law School of India University (Bangalore); (vi) Punjab

University; and, (vii) Kashmir University allow final year students of

Undergraduate Courses to give Supplementary Examination

immediately after the result of the VIth Semester, so that such students

who fail to give examination in Vth and VIth Semester of their third

year do not waste their entire education / academic year;

(g) that not allowing the third year students another chance to clear

their backlog papers is arbitrary, highly discriminatory, harsh and

discouraging to the morale of the students;

(h) that the respondents University itself is allowing Law Students

to take the Supplementary Examination of the final year in the same

year; there is no rationale for denying this right to students of other

Programmes / Subjects;

(i) that similarly the respondents University allows „Honours‟

students of third year who have not passed "Hindi" examination to

take Supplementary Examination for the said subject in the same year;

(j) thus, while the first and second year students are promoted to

the next year, even if have failed in any subject and thus do not waste

a year, the third year students, by being deprived of taking the

Supplementary Examination in the same year, are made to waste a

year;

(k) that the third year students, if permitted to take the

Supplementary Examination soon after the declaration of the result of

the third year and if the result of the said Supplementary Examination

is also declared before the month of September of the same year, the

said students would be able to join the Postgraduate Courses in the

same academic year;

(l) that the need for appearing in the Supplementary Examination

may not be on account only of failing in the subject but can also be on

account of illness or other like reasons;

(m) that there is no rational basis for, while allowing the first and

second year students to take the compartment examination in the same

year, not allowing the third year students to do the same.

4. The Registrar of the respondents University in his counter affidavit

has stated:

(I) that the petitioner could not qualify one paper of the Vth

Semester Examinations in her third year;

(II) that the petitioner does not have a vested right to seek holding

of Vth and VIth Semester Essential Repeat Examinations on or before

30th September of each year;

(III) that there is no provision in the Statute / Ordinances of the

respondents University to hold Supplementary Examination in respect

of any of the Semester examination;

(IV) that in the absence of any such Rule, Statute or Ordinance, the

petitioner cannot claim / insist upon the same, as a matter of right;

(V) that the provision for Supplementary Examination existed in the

Annual mode of examination for courses of BA, B.Com. and B.Sc.

Programmes and for subsidiary papers (which were only qualifying)

for Honours courses;

(VI) that from the year 2005, there are no subsidiary papers in

Honours courses, as those papers became main papers;

(VII) that accordingly, no Supplementary Examinations were being

conducted for the subsidiary papers under the Annual mode of

examination also;

(VIII) that the conduct of examination is a long-drawn process,

starting from identification of question setters for each of the papers

provided in the course for a particular Semester and ending with the

publication of results of the examination;

(IX) that in the case of July-December Semester, the process for

selection of Question Paper Setters starts after the University reopens

in the third week of July; after Question Paper Setters are selected,

they are asked to submit the question paper drafted by them within 2-3

weeks; thereafter, when all the question papers are received,

moderation of the question papers is done by the Moderation

Committee;

(X) that the Practical examinations start in the month of October and

Theory paper examinations commence from November and end in

December;

(XI) that the papers are evaluated by the teachers along with their

scheduled classes by 31st January of the following year and the results

put up on the University‟s website;

(XII) that with the introduction of Semester mode of examination,

gradually from 2010 onwards, the provision for Supplementary

Examinations, which was a feature of Annual mode of examination

became difficult to be operated for those courses which were

conducted Semester-wise, as four examinations has to be conducted in

a year instead of two;

(XIII) that accordingly, the respondents University took a policy

decision to discontinue with the Supplementary Examinations;

(XIV) that the Supplementary Examination in Undergraduate Courses

under the Annual scheme has been discontinued by an amendment to

Ordinance VIII(1) of Delhi University vide Academic Council

Resolution dated 21st June, 2014;

(XV) that the provision of Supplementary Examination has never

been in the Ordinance related to Semester Examination; hence the

question of conduct of Supplementary Examination in the Semester

examination does not arise;

(XVI) that the course of the petitioner was Semester mode at the time

she took admission to the same;

(XVII) that Supplementary Examinations held in Law Faculty are in

accordance with the directions of the Bar Council of India;

(XVIII) that the question is no longer res-integra in view of the

judgment dated 3rd September, 2013 of this Court in W.P.(C)

No.5501/2013 titled Shakti Garg Vs. Delhi University;

(XIX) that even otherwise, this Court in judgment dated 10th May,

2013 in W.P.(C) No.1810/2013 titled Rithambhra Garg Vs.

University of Delhi has reiterated that the Courts should be slow to

interfere in academic matters and cannot lose track of the fact that

preparing a schedule, conducting examinations, re-test, repeat

examinations etc. falls strictly in the domain of the University and is

binding on the students;

(XX) that the petitioner was well aware of the discontinuation of the

Supplementary Examination well before she was admitted to Vth

Semester of her course and that she would lose a year in case she fails

in any paper of that Semester and is thus estopped from making the

present challenge.

5. The petitioner, in her rejoinder, besides reiterating the contents of the

petition has pleaded, (A) that the respondents University having not

controverted the existence of the practice pertaining to conducting of

Supplementary Examination in the other Universities has admitted to

arbitrariness; (B) that the very introduction of Semester mode is arbitrary;

arise, as the petitioner did not fail in any subject of the first or second year of

her course.

6. The counsel for the petitioner during the arguments, besides reiterating

the contentions in the pleadings already noticed above contended that the

doing away with the holding of Supplementary Examinations is arbitrary and

unjust to the students and illegal. The counsel for petitioner on 14th

September, 2015 filed written submissions along with copies of judgments in

Subramanian Swamy Vs. Director, Central Bureau of Investigation (2014)

8 SCC 682, E.P. Royappa Vs. State of Tamil Nadu (1974) 4 SCC 3,

Maneka Gandhi Vs. Union of India (1978) 1 SCC 273, Sansar Chand Atri

Vs. State of Punjab (2002) 4 SCC 154, Grand Kakatiya Sheraton Hotel &

Towers Employees & Workers Union Vs. Srinivasa Resorts Limited (2009)

5 SCC 342, Babita Prasad Vs. State of Bihar (1993) Supp. (3) SCC 268, Dr.

K.R. Lakshmanan Vs. State of Tamil Nadu (1996) 2 SCC 226, Deepak

Sibal Vs. Punjab University (1989) 2 SCC 145, Sharma Transport Vs.

Govt. of Andhra Pradesh (2002) 2 SCC 188, State of Tamil Nadu Vs. K.

Shyam Sunder (2011) 8 SCC 737, Andhra Pradesh Dairy Development

Corporation Federation Vs. B. Narasimha Reddy (2011) 9 SCC 286, State

of Orissa Vs. Mamata Mohanty (2011) 3 SCC 436 and judgment dated 6th

July, 2010 in W.P.(C) No.2593/2010 titled Ms. Simaran Kaur Vs. The Vice-

Chancellor.

7. The counsel for the petitioner, at the time when the petition had come

up for admission, also relied on Tanvi Sarwal Vs. CBSE

MANU/SC/0681/2015 whereby the Supreme Court has directed All India

Pre-Medical Test to be re-conducted and on the basis thereof had contended

that the Court can direct holding of a examination immediately. However,

the said contention was rejected vide order dated 17 th July, 2015 observing

that the reasons which prevailed with the Supreme Court for directing so

were entirely different from the present case.

8. In the written arguments, it is also contended that even if this Court

were to not hold in favour of the petitioner and not direct Supplementary

Examination to be held in the same year, should direct that the degree

awarded to the petitioner on the basis of the Supplementary Examination of

the following year should relate back to the current year in which the

petitioner had completed the course. Reliance in this regard is placed on

Prashant Srivastava Vs. C.B.S.E. AIR 2001 Delhi 28 (DB).

9. Per contra, the counsel for the respondents University, besides

reiterating his case in the pleadings as already noticed, argued that holding of

Supplementary Examination of each Semester examination doubles the

number of examinations to be held by the respondents University every year

and which is not feasible. To meet the argument of discrimination, it was

contended that the rule applies to all undergraduate courses. With respect to

LLB Programme, it is stated that besides it being a professional Course /

Programme is a Post-Graduation Programme and as compared to the number

of students who appear in LLB examination, the number of students who

appear in the examinations of all undergraduate courses conducted by the

respondents University is much larger and though it is possible to hold /

conduct Supplementary Examination of LLB Programme, it is not possible

to hold the same for the Undergraduate Programmes.

10. The counsel for the respondents University is correct in his contention

that the matter, as far as this Bench is concerned, is no longer res-integra, in

the light of the judgment of a co-ordinate Bench in Shakti Garg supra.

Rather, I find that LPA No.708/2013 was preferred against the judgment of

the Single Judge and vide order dated 30th September, 2013 therein, the

Division Bench concurred with the reasoning given by the learned Single

Judge but upon being told that number of representations had been made, left

it for the respondents University to decide whether to hold Supplementary

Examination for that batch of students. Thus, as far as this Bench is

concerned, the matter is not open for consideration.

11. The counsel for the petitioner has not even made any attempt to show

that the action of the respondents University of doing away with the

compartment examination in the Semester mode introduced in the

respondents University is contrary to any law. The only question which thus

remains is, whether the policy of the respondents University can be said to

be arbitrary or discriminatory.

12. No case of discrimination is made out as the said policy is applicable

to all undergraduate courses alike. The petitioner cannot seek comparison

with LLB Programme which stands in an entirely different genre. The LLB

Programme, besides being governed by the Statutes, Ordinances and

Regulations of the University is also governed by the Bar Council of India

entrusted with overseeing the legal education in the country. Moreover, as

contended by the counsel for respondents University, it is a Post-Graduate

Programme with far fewer students than in the Undergraduate Courses /

Programmes of the respondents University. As far as discrimination

between the Semesters of the same Programme i.e. allowing students of Ist,

IInd, IIIrd and IVth Semester to re-appear in the same year is concerned, the

respondents University is not required to hold any fresh or separate

examination therefor. The students failing in any of the subjects of I st, IInd,

IIIrd and IVth Semester can re-appear in the examinations held in November /

December or April-May as the case may be, of the same Semester. The

same thus does not impose burden on the respondents University of holding

a separate examination, as the petitioner wants the respondents University to

hold.

13. I find that the Division Bench of the High Court at Hyderabad was

recently in Arshia Tanveer Vs. Osmania University MANU/AP/0512/2015

concerned with a similar demand on the part of the student. The student of

the University in that case was similar to that of the respondents University

before me. It was stated that it is difficult to conduct Supplementary

Examinations immediately after the completion of the main examinations as

after the main examination valuation and re-valuation has to be undertaken

and all of which also takes time. The Division Bench relying upon

University of Mysore Vs. Govinda Rao AIR 1965 SC 491, Maharashtra

State Board of Secondary and Higher Education Vs. Paritosh Bhupesh

Kumar Sheth (1984) 4 SCC 27, Tariq Islam v. Aligarh Muslim University

(2001) 8 SCC 546 and Rajbir Dalai Vs. Chaudhary Devi Lal University

(2008) 9 SCC 287 held that it had to be slow to interfere with the opinions

expressed by the experts, particularly in a case where there is no allegation

of mala fides made against the experts. It was further held that the Courts

have to be reluctant to substitute its views as to what is wise, prudent and

proper in relation to academic matters in preference to those formulated by

professional men possessing technical expertise and rich experience of actual

day-to-day working of educational institutions and the departments

controlling them. It was yet further held that unless there is a clear violation

of statutory provisions, the regulations or the notifications issued, the Courts

shall keep their hands off since academic issues fall within the domain of

experts. It was further reasoned that the issue was one of the academic

standards and in the exclusive domain of the academecia.

14. The same learned Single Judge who pronounced Shakti Garg supra in

Shourabh Singh Vs. University of Delhi MANU/DE/2860/2013 also

dismissed a similar challenge.

15. However this is found to have been the consistent view of this Court.

Earlier another Single Judge in Vipin Sharma Vs. Guru Gobind Singh

Indraprastha University MANU/DE/1863/2009 faced with a challenge to

the ordinance of the University in that case stipulating holding of Semester

examination only once a year for a subject of a particular Semester on the

ground of the same being arbitrary held that the fact that the petitioner was

inconvenienced by said rule and owing thereto stood to lose out on his

chances of pursuing higher education abroad in the same very academic year

are not grounds that would compel this Court to exercise its extraordinary

jurisdiction under Article 226 to strike down academic policy. I may notice

that it was also the contention of the petitioner in that case as before me that

the other universities were permitting so. It was further held that the

parameters and logistics for relaxation of requirements for admission cannot

be equated with the exercise of discretion to conduct a Supplementary

Examination which is based on various factors and that merely because in

previous years the Supplementary Examination for the odd Semesters was

conducted was no ground for directing the University to hold the

Supplementary Examination in the subsequent year also. I find that the said

matter was also taken before the Division Bench by way of LPA

No.395/2009 but which was dismissed vide a speaking order dated 17th

August, 2009.

16. Yet another Single Judge of this Court in Sh. Prem Kumar Prasad Vs.

Jamia Hamdard (Deemed University) MANU/DE/2120/2008 dealing with a

petition seeking mandamus to the University to hold the Supplementary

Examination observed that the rules and regulations which had been framed

by the University were within the knowledge of the student when he had

taken admission to the Course / Programme and that no student has any legal

or enforceable right to claim that Supplementary Examination or any other

examination be conducted on a particular date or time as per the convenience

of the candidate. It was further reasoned that Supplementary Examinations

are intended and are organized by the University for the purposes of enabling

students who have failed in any examination a further opportunity to pass the

same and that a vigilant, conscious and diligent student would ensure that

occasion to take such Supplementary Examination will not occur. It was yet

further reasoned that conduct of examinations entails costs and

administrative organization and there could be no judicial interference

therewith.

17. I find the other High Courts also to have taken the same view.

Mention may be made of Bilal Ah. Wani Vs. University of Kashmir

MANU/JK/0395/2009 and Ku. Niharika Saraf Vs. Rani Durgawati

University MANU/MP/2343/2013 (DB).

18. The matter is beyond any pale of controversy by the judgment of the

Division Bench of this Court in Aditya N. Prasad Vs. University of Delhi

MANU/DE/7301/2011 where also a mandamus was sought for holding

Supplementary Examinations for students in each Semester so as to give

better opportunity and chance to the students to clear their papers in which

they had absented / failed. It was held that the matters of promotion are

academic matters which are to be left to the academic institutions and Courts

are not to tinker with the same unless it is found that they are in violation of

some statutory or constitutional provisions. The writ petition was dismissed.

SLP(C) No.11744/2012 preferred thereagainst is found to have been

dismissed on 20th April, 2012.

19. In the light of the aforesaid, the plethora of judgments filed by the

counsel for the petitioner on the concept of "what is arbitrariness" pale into

insignificance. It has been repeatedly held by this Court that not holding of

Supplementary Examination as desired by the students does not qualify as

arbitrary. Even in Shakti Garg supra it was reasoned that holding of

Supplementary Examination is only a concession extended by the University

to the students who are unable to clear one or more papers in the main

examination taken by them and such a concession from the University

cannot be claimed as a matter of right.

20. I may in this regard also notice that though Ordinance VIII under the

University Statute provides that the annual examination for all degrees,

diplomas and certificates of the University shall be held once a year, in the

spring, unless otherwise provided for in any other Ordinance or Appendix

thereto or at such other time during the year, as may be fixed by the

Academic Council in each case, but the Proviso thereto provides that a

Supplementary Examination, in addition to the annual examination, shall be

held in the final year of the undergraduate courses. However, vide

Amendment dated 14th June, 2010, the following was added to Ordinance

VIII:

"1(b). Examinations for the courses covered under the semester scheme shall be held at the end of each semester in accordance with the academic calendar prescribed by the Academic Council from time to time. Unless otherwise provided specifically in any other Ordinance, there will be no Supplementary Examination for any of the semester examinations."

It is clearly borne out from the above that the provision for holding of

Supplementary Examinations for the final year of the undergraduate courses

was made when examinations were conducted annually and while providing

for the Semester scheme, the Supplementary Examination for any of the

Semester examinations have been done away with.

21. The reason given by the respondents University for doing away with

the Supplementary Examinations is also not which can be said to be

unreasonable or arbitrary. The process of holding the examination is indeed

a tedious one, requiring a lot of care and caution and more so, now in this

age of transparency when judicial review is sought of the process as well as

result of nearly all examinations.

22. I am therefore unable to hold that there was no reason for the