Abhinav Pandey vs Guru Gobind Singh Indraprastha ...
2018 Latest Caselaw 557 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Judgment reserved on : 15.01.2018
                   Judgment delivered on: 23.01.2018

+      W.P.(C) 2028/2016 & C.M. No.8746/2016

       ABHINAV PANDEY                             ..... Petitioner

                         Through     Mr.Amit     George,     Mr.Swaroop
                                     George, Ms.Rajsree Ajay, Advocates.

                         versus

       GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY AND
       ORS                           ..... Respondents

                         Through     Ms.Ekta Sikri and Mr.Jasbir Bidhuri,
                                     Advocates for R-1.

                                     Mr.Sahil Munjal and Ms.Shea Gandhi
                                     Munjal, Advocates for R-3.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Petitioner was enrolled in the 5 year course of B.A.LL.B in the year

2010 at the Amity Law School affiliated to the Guru Gobind Singh

Indraprastha University (respondent no.2 and respondent no.1 respectively).

For his 6th semester examination out of 5 papers he could not appear in 2

papers i.e. the paper of Code of Civil Procedure and the paper of Code of

Criminal Procedure; these two examinations were scheduled for 29.5.2013

and 31.5.2013. The petitioner could not appear in the said examinations as

he was suffering from a highly infectious disease i.e. the disease of chicken

pox. Petitioner wrote his examination in the aforenoted 2 papers in the year

2014. He had passed with flying colours. He graduated from the

University with the highest score/Cumulative Performance Index (CPI) for

his course i.e. 80.56.

2 On 27.02.2016 the petitioner was shocked to learn that petitioner was

not being considered for the award of Gold Medal in spite of him having

achieved highest score in his course. He visited the office of the Controller

of Examinations. He was informed that his claim for the Gold Medal was

rejected by the University for the reason that since he had not been able to

attempt his two examinations in the year 2013, on account of illness and he

had cleared them only subsequently, he could not be considered favourably

for the award of the Gold Medal. His repeated communications to the Vice

Chancellor as also to the Controller of Examinations and to the respondent

University were of no avail.

3 The prayer in the present petition is that the Gold Medal be awarded

by the respondent University to the petitioner for the B.A. LL.B. course

which he had completed in the year 2015 for which he has admittedly scored

the highest marks.

4 Respondent no.3 is the person to whom the Gold Medal had been

awarded. Response of respondent no.3 is that she had been awarded the

Gold Medal as per her score. She had scored marks of 79.14 CPI. The claim

of the petitioner is false. He cannot be considered over and above the case of

respondent no.3 as respondent no.3 had been given this score on her having

attempted the papers in her "first attempt".

5 Respondent no.1 has filed a counter affidavit. No separate counter

affidavit has been filed by respondent no.2.

6 Respondent no.1 has opposed the prayer. His submission is that the

Ordinance XI of respondent no.1 is the governing ordinance and any student

who fails to appear in examinations at the first time and thereafter appears in

the said examinations on a subsequent date would qualify as a "second

attempt" on his part. Reliance has been placed upon Annexure P6; this is

an Order issued by the respondent no.1 university and the relevant extract

relied upon by respondent no.1 reads as under:

"(3) For programmes of study with credit based evaluation, the student obtaining highest CPI (Cumulative Performance Index) at the end of the study in a given programme group/programmes of study shall be eligible for

the award of the gold medal and/or exemplary performance certificate, if the student has passed every paper/course in the first attempt." 7 Learned counsel for respondent no.1 points out that since admittedly

the petitioner could not appear for two examinations in the year 2013; he had

qualified these two papers only in the year 2014 and this not being his "first

attempt" within the meaning of Annexure P6 and respondent no.1 being

governed by its Ordinance, the petitioner makes out no case. Learned

counsel for respondent no.1 additionally submits that the petitioner had an

extra one year to prepare for the aforented two law examinations and which

he had attempted in the year 2014 and this extra one year for preparation was

also to the prejudice of respondent no. 3 who had otherwise scored the

highest marks. It is pointed out that the prayer made by the petitioner had

been rejected for the reason that the petitioner had already made his "first

attempt", the examination chart for the year 2014 reflects that this was a re-

examination/supplementary examination undertaken and this not being his

"first attempt", the petitioner is not entitled to the Gold Medal. This

reasoned order cannot be interefered with lightly by this Court.

8 This Court notes that on the first date of hearing i.e. on 09.3.2016 after

hearing arguments, the respondent no.1 university had been permitted to go

ahead with its convocation and award Gold Medal to respondent no.3.

However, the award of the Gold Medal to respondent no.3 would be subject

to further orders passed in this petition; in the event that the petitioner is held

entitled to a Gold Medal then in a subsequent convocation the petitioner

could also be awarded a Gold Medal.

9 On behalf of the petitioner reliance has been placed upon a judgment

of the Rajasthan High Court reported as MANU/RH/1631/2015 Sovila

Mathur Vs. Maharshi Dayanand Saraswati University. Submission is that in

similar facts the interpretation of the word "first attempt" was considered in

that judgment and the Court was of the view that where a candidate could

not appear in his examinations on account of illness, it could not be said that

any attempt has been made by the petitioner; his appearance in the

subsequent examinations would qualify as a "first attempt". Reliance has

also been placed upon a judgment of the Allahabad High Court reported as

AIR 1982 All. 56 Shashi Kant Mall Vs. Vice Chancellor and Ors.

Submission being that failure to appear in the examination cannot be equated

with making an attempt and then failing thereon; if the candidate had not

appeared in the examination at all it was not possible to say that he had made

any attempt. Meaning thereby that his subsequent appearance would qualify

as a "first attempt". For the same proposition reliance has been placed upon

a judgment of the Apex Court reported as 1987 SC 1362 Abhijit Vs. Dean,

Government Medical College, Aurangabad and Another. Learned counsel

for the petitioner has also placed reliance upon a judgment of the High Court

of Punjab and Chandigarh passed in Civil Writ Petition No.3269 of 1993

titled Rubinder Brar Vs. Punjab University, Chandigarh and Another

delivered on 20.4.2011 wherein the word "first attempt" qua university

examinations had been considered; in this judgment also it was held that if

the petitioner did not at all sit in the paper on account of ill health, the

occasion when he actually sat in the paper must be considered as his "first

attempt". For the same proposition reliance has also been placed upon a

judgment of the Bench of the Andhra Pradesh High Court reported AIR 1990

AP 122 Kum. M.Anuradha Vs. Sri Venkateswara University, Tirupati.

Submission being that in this case where Rule 2 of the General Conditions of

the said Educational Institution had contained a clause that a candidate who

had not taken the examination at the appropriate time for any reason would

be considered as having attempted the examination; this rule had been struck

down.

10 Learned counsel for respondent no.1 while countering the submission

has placed reliance upon a judgment of the Bombay High Court reported as

1988 Mh.L.J. 1022 Dr.Rajkumar Shantilal Gandhi Vs. State of Maharashtra

and Ors. Submission is that in this case the Bench of the Bombay High

Court was of the view that where a candidate could not appear in the

examinations for the reasons which as per the Bombay High Court were

irrelevant the fact that he had appeared in the supplementary examinations

would qualify as a second attempt; in the context of admission to academic

courses "attempt" having a special meaning and where candidate had filled

in the requisite form and had crossed the stage of preparation he was at the

stage of "attempt" and he not having appeared on that particular date had

already made his "first attempt". Learned counsel for respondent has also

placed reliance upon a judgment of the Apex Court reported as AIR 1966 SC

707 Principal, Patna College, Patna and Ors. Vs. Kalyan Srinivas Raman to

support a submission that powers under Article 226 of the Constitution of

India should be exercised by the High Courts sparingly; in matters relating

to educational institutions and where a reasoned order has been passed by an

educational institution, as is in the instant case, the Courts should not

interfere with that order.

11 In rejoinder learned counsel for petitioner points out that the petitioner

in the year 2014 had appeared for five examinations for his 8th semester; he

had also appeared in the aforenoted two examinations of his 6 th Semester

examination i.e., the paper of Code of Civil Procedure and the paper of Code

of Criminal Procedure. This was a telling experience and highly

burdensome to the petitioner as in that year he had to give 7 papers and the

papers of the Code of Civil Procedure and the Code of Criminal Procedure

were conducted on the same day when the papers of the 8th Semester were

scheduled. Submission being reiterated that this extra one year upon which

the respondent no.1 is harping, did not work to the advantage of the

petitioner but in fact worked to his disadvantage.

12 Arguments have been heard. Record has been perused.

13 Record reflects that the petitioner had enrolled for his B.A. LL.B.

course at respondent no.2 college in the year 2010. He had completed this

course in the year 2015. Qua his 6th Semester out of the 5 papers which he

was scheduled to appear in, he could only appear in 3 papers which he had

qualified. He could not appear in the paper of Code of Civil Procedure and

the paper of Code of Criminal Procedure as on those two days the petitioner

was suffering from an infectious disease i.e. chickenpox. The fact that the

petitioner was suffering from this illness is not disputed. Accordingly, the

petitioner was permitted to appear in the aforenoted 2 papers (of the 6th

Semester) only in the year 2014 along with 5 other exams for which he had

to appear for in his 8th Semester. The Cumulative Performance Index (CPI)

which the petitioner obtained was 80.56; this was the highest score. It was

over and above the score secured by respondent no.3 who had achieved

79.14 CPI.

14 The Gold Medal has been awarded to respondent no.3. In the course

of the arguments, learned counsel for petitioner pointed out that this could

well be a case where both the candidates i.e. the petitioner and respondent

no.3 deserve a Gold Medal; he would not like to disturb the award of the

Gold Medal which has already been received by respondent no.3. His

submission that a Gold Medal can be given by the respondent university

while maintaining the status of respondent no.3 is in terms of the judgment

of the Rajasthan High Court in Sovila Mathur (supra) wherein second Gold

Medal had been awarded to the candidate who had made out a case in the

court. The vehement submission of respondent no.1 university that the

petitioner has stolen a march over respondent no.3 for the reason that he had

one more year to prepare for the aforenoted two papers (the Code of Civil

Procedure and the Code of Criminal Procedure) is a submission which

necessarily has to be rejected. As pointed out by the learned counsel for

petitioner along with the 5 papers for which the petitioner had to appear in

his 8th Semester, he also had to appear for 2 papers of his 6th semester i.e. the

paper of Code of Civil Procedure and the paper of Code of Criminal

Procedure i.e. the left out papers of the 6th Semester. The fact that both

these papers were scheduled on the same days when the examinations of the

8th Semester were held is also not disputed by respondent no.1; meaning

thereby that on one day the petitioner had to appear for two examinations i.e.

in the morning session and in the afternoon session. Petitioner had to work

harder on those days than in the normal course; the question of the petitioner

having earned an advantage of an extra one year of study does not arise. In

fact to say the least, it was probably a prejudicial situation for the petitioner

who had not only to write two examinations on the same day but obviously

had to make extensive preparations on that score as well. Thus this argument

of respondent no.1 carries no weight.

15 What really has to be interpreted by this Court is as to whether the

petitioner who had sat for his examinations for the paper of Code of Civil

Procedure and the paper of Code of Criminal Procedure in the year 2014 was

a "first attempt" which had been made by him or whether it was a case of

reappearance and would be out of the ambit of a "first attempt". As noted

supra both the learned counsels for the respective parties have relied upon

their respective judgments to support this definition. The Oxford Advanced

Learner's Dictionary defines the word "attempt" as to make an effort or try

to do something specially something difficult; to endeavour; an effort or

endeavor to effect the accomplishment of an act..." The Division Bench of

Punjab and Haryana High Court while interpreting the words "first attempt"

in Rubinder Brar (supra) for an engineering examination had defined it to

mean as the first time when a candidate actually sat for the subject in the

university examination; if a candidate had not sat in the examination on

account of his ill health, the occasion when he actually sat in the examination

must be understood as his "first attempt". This Court is persuaded by the

view taken by the Division Bench of the Punjab and Haryana High Court in

the judgment of Rubinder Brar (supra). The Rajasthan High Court in Sovila

Mathur (supra) had also interpreted these words "first attempt" to mean a

first time situation wherein the candidate actually took the examination and

the Court had unequivocally held that non-appearance on account of illness

would not constitute an attempt. The Apex Court in the judgment of Abhijit

(supra) had inter alia held as under:

" we are also of the view that if the rule has the effect of treating failure to appear at the examination because of serious illness as non-appearance at

the examination so as to make the candidate liable to a deduction of five per cent of marks when seeking admission to a Post Graduate course the rule is indeed arbitrary".

16 This judgment of the Apex Court is also in line with the conclusion

arrived at by the Punjab and Haryana High Court Bench and Rajasthan High

Court Bench. Although the Apex Court had made this observation not in the

context of a "first attempt" but the line of thinking was obviously to the

effect that where a candidate fails to appear in an examination because of an

illness and because of no fault of the said candidate, his non-appearance at

the examination would not be a ground to impose a penalty upon him.

17 The present case is clearly a case where the petitioner/candidate could

not appear for his papers in the year 2013 on account of circumstances which

were beyond his control i.e. the circumstance of him having developed an

infectious illness i.e. chickenpox. In these circumstances he obviously could

not appear in the said examinations. As per the rules of respondent no.1 the

next scheduled date was in the year 2014 when after clearing his 5 papers of

the 8th Semester he obtained the highest score i.e. CPI of 80.56.

18 The submission of respondent no.1 that the award of Gold Medal is an

award of an honour and a recognition to a feat accomplished by a candidate

and is not to be awarded as matter of right is noted. Yet such an achievement

must be recognized and if the institution fails to give a recognition to a

candidate who deserves it he has no other option but to approach this Court,

which the candidate has done so in the instant case.

19 Ordinance 5 of respondent no.1 has been relied upon by the petitioner

in this context. The relevant extract of the rule reads herein as under:

(2) The Gold Medal and/or exemplary performance certificate to be awarded where the number of students successful in minimum time stipulated (stipulated by the scheme of study) for the degree is more than or equal to 10 in the programme group/programmes of study for which the gold medal/or exemplary performance certificate is to be awarded.

(3) For programmes of study with credit based evaluation, the student obtaining highest CPI (Cumulative Performance Index) at the end of the study in a given programme group/programmes of study shall be eligible for the award of the gold medal and/or exemplary performance certificate, if the student has passed every paper/course in the first attempt."

20 The petitioner having qualified his papers in the "first attempt" with

the highest CPI was thus entitled to the award of the Gold Medal. This Court

would not like to disturb the status of respondent no.3 as was in the case of

Sovila Mathur (supra) wherein in a similar situation, a second Gold Medal

had been awarded to the candidate who had approached the Court.

Accordingly, this Court is of the view that respondent no.1 shall confer a

Gold Medal upon the deserving petitioner for the aforneoted academic

session. Petition disposed of in the above terms.

INDERMEET KAUR, J

JANUARY 23, 2018 ndn