Delhi High Court
Nitin Sehrawat vs Guru Gobind Singh Indraprastha ... on 13 May, 2019
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13th May, 2019
+ W.P.(C) 5170/2019 & CM APPL. 22907/2019
NITIN SEHRAWAT ..... Petitioner
Through: Mr. Siddharth Sharkar Ray and
Mr. Abhik Kumar, Advs.
versus
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
& ANR ..... Respondents
Through: Ms. Anita Sahani, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
%
1. The petitioner, who is presently studying in the 4th Semester, in
the 2nd year of the Bachelor of Journalism and Mass Communication
course, conducted by the Respondent No. 1-University (hereinafter
referred to as "the GGSIPU"), completed the first two semesters of the
said course during the period 2017-2018. He also appeared in the third
semester examination of the said course, the results of which are stated
to be awaited.
2. The grievance of the petitioner is that he has been denied
permission, by the GGSIPU, to appear in the fourth semester
examination, on account of shortage of attendance. It is admitted, in
the writ petition, that the petitioner has only 27% attendance, whereas
the minimum attendance, in order for a student to be permitted to
appear at the end semester examination, is 75%.
3. The reason for the petitioner's shortage of attendance, in the 4th
semester, as set out in the writ petition, is that his maternal uncle is
suffering from various ailments, and that the petitioner had to remain
absent in order to attend to his daily needs and arrange medical
treatment.
4. The petitioner submits, in these circumstances, that he ought to
have been permitted to appear in the end semester examination of the
aforesaid course.
5. The petitioner also avers, in the writ petition, that several
students, who had secured less than the requisite 75% attendance, had
been permitted to appear in the said examination.
6. Mr. Ray, learned counsel for the petitioner, reiterates the
contents of the writ petition and also seeks to place reliance on para
9.31 (ii) at page 152-153 of H.M. Seervai's classic Constitution of
India, Fourth Edition. The said passage reads thus:
"9.31 (ii) A law provides that if certain prescribed
conditions are not fulfilled, a licence to trade in a
particular commodity shall not be granted to any person
by designated officers. Two thousand persons who have
not fulfilled the prescribed conditions apply for and are
not granted licences by the designated officers. Thirty
persons who have not fulfilled the prescribed conditions
apply for and are granted licences by the designagted
officers as a result of inadvertence, mistake or even
bribery. Can any one or more of the 2,000 persons who
have been refused licences, apply to the High Court or the
Supreme Court to direct the designated officers to grant
them a licence? The Answer must be: No, for the
applicants having been rightly refused a licence, they
cannot complain that their right to obtain a licence had
been violated. Article 14 requires that persons similarly
situated must be treated equally; but Art. 14 does not
confer on any person a right to which he is not entitled
under a valid law. And yet, by refusing licences to the
2,000 applicants and granting them to 30 applicants, who
ought also to have been refused licences, persons
similarly situated have been treated unequally. Is there
no remedy against a clear violation of the right to
equality? It is submitted, that a writ of mandamus should
lie at the instance of any one of the 2,000 applicants
against the designated officers, directing them to cancel
the licences granted to the thirty applicants. When I
made this submission in the third edition of this book,
difficult questions arose of an applicant's locus standi to
apply for a mandamus. This was because in R. v.
Lewisham Union Guardians it was held that the applicant
for a mandamus must show that his personal right was
affected. However, Lewisham's Case was overruled in
R. v. I.R.C. Exp. Fed. of Self-Employed by all the 5 law
Lords who heard the matter. The overruled case had
treated a writ of mandamus as if it was a private law
remedy when in reality it was a public law remedy. Lord
Diplock held in the Inland Revenue Commrs. case that a
pressure group like the Federation of Self-employed, or
even a single public-spirited person, acting in good faith,
could approach the Court for a mandamus directing a
public authority to abstain from violating the law or for
compelling that authority to set right its violation of the
law, where that is possible. In S.P. Gupta & Ors v. Union
Bhagwati J. adopted Lord Diplock's view, and Gupta,
D.A. Desai, Pathak and Tulzapurkar JJ. Agreed - that is,
5 out of the 7 Judges who constituted the Bench accepted
Lord Diplock's view. Consequently, a writ of mandamus
directing the designated officer to cancel the licence
illegally granted to 30 applicants would lie at the instance
of an aggrieved party, or at the instance of a public-
spirited citizen acting in good faith to enforce the law."
7. I do not see how the above passage can come to the aid of the
petitioner. If anything, the passage would seem to militate against the
petitioner's claim. The example cited in the above extracted passage
refers to a case in which license had been granted to thirty persons,
though they had not fulfilled the requisite conditions, though two
thousand others, who had fulfilled the requisite conditions, were not
granted licences. The passage clearly, addresses the issue of whether
the two thousand persons who had not been granted licences, could
maintain an action before a court, seeking that licences be granted to
them, at par with the thirty persons who had been illegally granted
licences. The passage clearly notes that the position, in law, is that no
such right would enure, in favour of the said two thousand persons,
whose right, at best, could be for revocation of the licences granted
illegally to the thirty other ineligible persons.
8. Analogizing the present case to the one cited by Seervai, the
petitioner would, clearly, have no right whatsoever, to seek permission
to appear in the fourth semester examination, as he has admittedly less
than 75 % attendance to his credit.
9. As such, the petitioner could not seek to piggy back on the fact
that certain other students, who had less than 75% attendance, had
been allowed to sit in the examination.
10. The writ petition does not contain any prayer, seeking that the
persons who had been permitted to sit in the examination - as the
petitioner would aver, illegally - should not be permitted to do so, or
that the permission granted to the said students be revoked. Neither
does this Court know whether the said allegation is correct, nor have
any of the said students been impleaded as parties in the writ petition.
11. As such, this Court does not need to venture into the said arena
at all.
12. That apart, there are a catena of authorities, to the effect that
Article 14 of the Constitution of India does not contemplate negative
equality. The grant of an illegal benefit to one person cannot justify
another person seeking the same benefit. (State of Haryana v. Ram
Kumar Mann, 1997 (3) SCC 321).
13. The issue in controversy, I may note, has been dealt with, by me
on facts, which are identical to those of the present case, in my
judgment dated 6th May 2019 in W.P.(C) 4861/2019 (Kartik Chopra
v. GNCTD).
14. The petitioner, in that case, was suffering from an ailment
known as Paroxysmal Supraventricular Tachycardia (PSVT), which
disabled him from attending 75% classes, as required by the
Ordinances of the GGSIPU, in order to enable him to appear in the
end semester examination.
15. While sympathising with the predicament faced by the student,
this Court clearly expressed its inability to direct the GGSIPU to allow
the petitioner to appear in the examination, contrary to its own
Ordinance.
16. Mutatis mutandis, the said position would apply to the present
case as well.
17. For the above reasons the writ petition is dismissed with no
orders as to costs.
C. HARI SHANKAR, J
MAY 13, 2019/bh
