Delhi High Court
Anupam & Ors. vs University Of Delhi Through Its ... on 8 July, 2020
SINDHU KRISHNAKUMAR
08.07.2020 20:31
$~12, 14 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 8th July, 2020
+ W.P.(C) 3946/2020 & CM APPLs.14163-65/2020, 14172/2020
ANUPAM & ORS. ..... Petitioners
Through: Mr. Akash Sinha, Mr. Shubham Saket
Mr. Indrajeet Singh and Mr. Gaurav
Prakash Shah, Advocates.
versus
UNIVERSITY OF DELHI THROUGH ITS
REGISTRAR & ORS. ..... Respondents
Through: Mr. Sachin Datta, Senior Advocate
with Mr. Mohinder Rupal and Mr.
Hardik Rupal, Advocates for
University of Delhi.
Mr. Apoorv Kurup, Ms. Nidhi Mittal
and Mr. Siddarth Nigotia, Advocates
for R-2/UGC.
Ms. Sunieta Ojha, Advocate for R-
3/UOI.
WITH
+ W.P.(C) 4002/2020 & CM APPLs. 14374-76/2020
AKSHAY LAKRA & ORS. ..... Petitioners
Through: Mr. Harpreet Singh Hora, Mr.
Pardeep Kumar Naagar and Mr. Arun
Hooda, Advocates.
versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. Sachin Datta, Sr. Adv alongwith
Mr. Mohinder Rupal and Hardik
Rupal, Advs. for the University of
Delhi/R-1.
Mr. Apoorv Kurup and Ms. Nidhi
W.P.(C) 3946/2020, 4002/2020 & 4029/2020 Page 1 of 14
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By:PRATHIBA M SINGH
Signing Date:08.07.2020 19:48
Mittal, Adv. for R-2.
Mr. Virender Pratap Singh Charak,
Mr. Shubhra Parashar, Mr.
Pushpender Singh Charak, Mr. Kapil
Gaur and Mr. Vaishnav Kirti Singh,
Advocates for R-3.
AND
+ W.P.(C) 4029/2020 & CM APPLs.14445-47/2020
KABIR SACHDEVA ..... Petitioner
Through: Mr. Manik Dogra, Mr. Dhruv Pande
and Mr. Randeep Sachdeva,
Advocates.
versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. Sachin Datta, Senior Advocate
with Mr. Mohinder Rupal and Mr.
Hardik Rupal, Advocates for
University of Delhi.
Ms. Suparna Srivastava, CGSC with
Mr. Tushar Mathur, Advocate for R-
2/UOI.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been held through video conferencing.
2. Anupam & Ors v. University of Delhi & Ors. [WP (C) 3946/2020]
was first listed before this Court on 6th July 2020. All the Petitioners herein
are final year students pursuing studies in the University of Delhi
(hereinafter, `DU'). In the said writ petition, an intervention application,
being CM No. 14172/2020 was filed on behalf of five students of Lady
Sriram College who are also in their final year. All Petitioners pray for
quashing of DU's decision to hold Online Open Book Examinations
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(hereinafter, 'online OBE') on several grounds including technical glitches,
non-availability of access to computers, 4G internet connectivity, mental and
physical state of students due to COVID-19 lockdown etc. However, since
the University Grants Commission (hereinafter, 'UGC') was to issue revised
guidelines, which was imminent, in order to end the uncertainty, UGC and
UOI were directed to make a statement as to their stand on cancellation of
examinations on 7th July, 2020. DU was also directed to place on record
various details to show their preparedness for conducting the online OBEs
from 10th July, 2020.
3. On 7th July 2020, the revised guidelines of UGC were placed on
record. The Dean (Examinations) of DU also appeared and clarified a
number of queries regarding the number of students appearing for the
examination; date sheets for all courses; tentative schedule for conduct of
exams until announcement of results; various safeguards adopted for
conduct of exams online, including for receiving question papers and
uploading of answer sheets; giving of results on a `confidential' basis for
students who have obtained admissions in foreign universities etc. The crux
of the said hearing was that DU is fully ready to go ahead and conduct the
online OBEs from 10th July, 2020. However, at the end of the hearing, the
Court was also informed that a meeting was under-way in the Ministry and
there could be some changes in the decision. Thus, the matter was adjourned
to 8th July, 2020 for DU to confirm the examination date sheet and
examination schedule.
4. Today, two fresh writ petitions, being Akshay Lakra & Ors. v.
University of Delhi & Ors. [W.P.(C) 4002/2020] and Kabir Sachdeva v.
University of Delhi & Ors. [W.P.(C) 4029/2020] have been transferred
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before this Court. In these two writ petitions, the prayer is that since
enormous uncertainty has been created by DU by repeatedly postponing the
examinations, final year students ought to be given some closure and
promoted on the basis of average marks of the previous years/semester and
internal assessments.
5. The parties in W.P.(C) 3946/2020 have made further submissions
today. Ms. Ojha, ld. counsel appearing for the Union of India submits that a
fresh Standard Operating Procedure (hereinafter, 'SOP') and Office
Memorandum dated 6th July, 2020 has been published by the Ministry of
Human Resource Development (hereinafter, 'MHRD'). Mr. Kurup, ld.
counsel appearing for the UGC, at the outset submits that these documents
have been received by the UGC and the same have been forwarded to the
Universities today. As per the said Office Memorandum and the SOP,
Universities have been given time till 30th September, 2020 to conduct their
examinations. However, UGC's guidelines dated 29th April, 2020 are in
general being reiterated, subject to the revisions made on 6th July, 2020. It is
specifically reiterated that Universities have the option of holding
examinations online or offline, based on the preparedness of the students,
their residential status and other factors.
6. Ms. Ojha, ld. counsel submits that permission is now being given by
the MHRD to the educational institutions to even hold physical
examinations. An oral advisory is also stated to have been issued to the
University of Delhi (hereinafter, 'DU').
7. Mr. Datta, ld. Sr. Counsel, along with Mr. Rupal, ld. counsel, for DU,
submits that despite the submissions made before this Court yesterday, in a
meeting held late last evening the decision was taken to postpone the
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examinations. Minutes of yesterday's High Powered Committee meeting
dated 7th July, 2020 have been placed on record. The relevant portion of the
minutes are set out below:
"5. The Committee resolves that there is a
requirement to carry out a comprehensive review
of the arrangements taken into account the
following:
(i) the UGC guidelines issued on 6th
July, 2020 ;
(ii) viewpoint expressed during the inter-
departmental meeting attended by
representatives of DU, UGC and Ministry of
HRD that the level of preparedness should
be upgraded further in light of increasing
complaints;
6. The Committee also notes that the number of
complaints from students have increased during
the course of mock tests in last two days that are
being conducted. It appears to the Committee that
there is necessity to spread greater awareness
about the OBE examination so that there are no
misgivings in any quarter either about the
credibility of the examination process or about its
efficacy.
7. Taking onto account all aspects and
circumstances, particularly the developments that
have taken place in the last couple of days, it is
decided to postpone the holding of examinations
after 15-08-2020."
8. Mr. Sinha, ld. counsel appearing for the Petitioners submits that he
has received a large number of emails from students, a compilation of which
has been forwarded to the Court, wherein students from across the country,
as well as foreign students studying in DU, have e-mailed him and raised
various issues with the postponement of DU's online OBEs. The said emails
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are taken on record and be tagged with the records of the present writ
petitions. The issues raised therein include the following:
1. Students have informed that their family members are suffering
from COVID-19 and they are thus unable to give exams;
2. Some students have complained that they are themselves suffering
from COVID-19 and hence are unable to give exams;
3. Complaints have also been made regarding the non- availability of
computers and internet connections at Common Service Centres
(hereinafter, 'CSCs'), which are supposed to be the centres which
enable students to give online OBEs especially in States like J&K
and Assam;
4. Inability of students to avail employment in PSUs where mark
sheets have to be submitted by 31st July, 2020;
5. Inability to pursue Post Graduate degrees in foreign universities,
including the US and UK, where the transcripts have to be
submitted by the end of July, 2020 or early August, 2020;
6. Several technical glitches being faced during the mock online
OBEs;
7. Students not being able to access the online OBE portal;
8. Commerce students of 4th semester have been given mock paper of
6th semester;
9. Various students wish to commence their jobs owing to the
precarious financial condition of their families and are unable to do
so due to the postponement;
10.Students have hired tutors for giving the OBE examinations and
may indulge in malpractice;
11. Portal not opening for more than half hour in the 11.30 am slot;
12. Inability to register for the mock test;
13.Students have various entrance examinations for postgraduate and
other courses, for which they have to prepare during July -
September 2020;
14.CSCs are not ready to provide facilities to students for giving
examinations;
15.Uploading of answers did not happen on the portal;
16.A current employee from EY (Ernst & Young) has received an
email that he would be terminated if he didn't complete his
graduation by July 2020;
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17.A student has secured admission in IIM Ranchi for MBA where
classes begin from 1st August so there is uncertainty of finishing
undergraduate exams due to postponement by DU;
18.For each answer sheet in each subject, photograph of each page
has to be clicked, compressed, scanned and then uploaded. For
every subject more than 30-40 photos have to be clicked especially
in Humanities subject. It is taking more than one hour for this
process;
19.For competitive examinations like CAT, GMAT, MA etc.,
preparation has to be done by undergraduate students. They also
need their final semester results;
20.Several students do not have adequate books;
21.Several big firms are revoking placements if the candidates do not
have their graduation degrees;
22.A student from Jammu complained that the CSCs near her house
were shut. Further she was to join a training program in Germany
in July where she has to be submit her marksheet as soon as the
lockdown is lifted. Visa applications by the foreign embassies is
likely to be commenced shortly and due to indefinite
postponement her training is under jeopardy;
23.One student has received conditional offers from University of
Cambridge, University of Edinburgh and University College
London where the final transcripts have to be submitted by 31 st
July or 21st August 2020 at the latest. These Universities are not
permitting deferrals and the admission offers are in jeopardy;
24.Students complain of having panic attacks and mental trauma
including suicidal tendencies due to such uncertainty;
25.Grievances have also been raised by foreign students studying in
DU, regarding the expiry of their visa and residential permits;
26.A final year student of statistics at Sri Venkateswara College,
Delhi University has complained of the syllabus not being
completed and no mock test for the 6th semester statistics paper
being uploaded;
27.A number of students have raised concerns regarding unfair means
being adopted to complete exams and there being no redressal
mechanism in place to address these concerns;
28.One student of B.A. (Spanish) who lost his father due to COVID-
19 is unable to apply and get a job due to the degree not being
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given and examinations being postponed;
29.Students from Jammu & Kashmir who only have 2G connection
but 4G connection is compulsory for being able to give OBE;
30.One student has said that OBE exams have been given to Amazon
Web Services due to commercial reasons and DU's insistence to
conduct OBE is not bonafide;
31.Staff of DU is not handling students' telephone calls properly and
are being very rude to students;
32.A student was initially selected in Genpact but due to uncertainty
of obtaining the degree, he was not selected. He is currently
working in a start-up from where he took leave but they may not
hire him if he asks for more leave due to exams being postponed.
He even has suicidal thoughts;
33.During mock tests one student uploaded 5 pages which
automatically became 10 pages as the pages had self-replicated.
The gateway also times out on most occasions;
34.NIMCET exam i.e., PG course in Computer science is to be held
on August 2019. Thereafter counselling will be held. Giving of 6 th
Semester exams would be very difficult;
35.SSB interviews are in the end of September. Many students wish
to appear for SSB exams and interviews;
36.Supreme Court has observed in the context of CBSE 10+2
examinations that there can be no surety that exams will be held so
final year exams should be scrapped.;
37.In Assam, CSCs are not operational. Also there is complete
lockdown since 27th June, 2020. Obtaining basic stationary is also
difficult;
38.Specially abled students are going to suffer with the exam
arrangement. Material has also not been provided for studies;
39.Admissions to post graduate courses will be completed by the time
the results are announced resulting in a loss of one whole year for
students so exams ought to be scrapped;
40.As per UGC guidelines even presentation-based assessments are
permissible so there is no compulsion to conduct examinations for
final semester;
41.Though online classes were supposed to have been held, in reality
not more than 3-4 online classes have been organised. The
postponement will result in a delay of six months in obtaining
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degrees and delay of one year in students' careers;
42.For BSc (Hons) Food Technology course no mock test was held;
43.One student living in a one-room tenement states that she has only
one broken phone and her parents also do not have smart phones.
Thus, she is unable to give the exams;
44.During a pandemic, one student complains that authorities ought
not to be stubborn to conduct examinations;
45.In law faculty printed Case Materials have not been provided.
Only online case materials were given.
Mr. Sinha, ld. counsel further submits that he has received more than 500
emails, including audio-video clips from students who are suffering due to
the repeated postponement of the final year exams. Mr. Sinha submits that
final exams are not really final exams as is being understood, which tests the
knowledge of students in all subjects during the entire course. They are
merely one semester in the whole set of examinations. Thus, promotion can
be given on the basis of past semesters and internal assessments.
9. Mr. Sharma, ld. Counsel for the intervenors, submits that one of the
intervenors in this matter i.e., Ms. Tanya Chandra, a student of Lady Sriram
college, has in fact, been offered admission by University of St. Andrews,
Scotland (UK) for pursuing MSc (Health Psychology), where she has to
submit her final year transcript urgently in July 2020, in order to pursue the
course. Upon submitting the transcript, she would receive her CAS number
to obtain a VISA. Her course is stated to commence from 1st September,
2020.
10. Mr. Hora, ld. counsel appearing for the Petitioners in W.P.(C)
4002/2020 submits that the manner in which DU is conducting its academic
activities is contrary to its Statutes and Regulations. He submits that the
academic council has not been consulted in the decision making process and
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thus, the decisions taken by DU are contrary to law.
11. In W.P.(C) 4002/2020 specific reliance is placed on Sections 17, 21 &
23 of the Delhi University Act, 1922 to argue that the authorities of DU are
the Court, the Executive Council, the Academic Council and the Faculties
and none of these authorities have been consulted in the decision making
process. Further, reliance is placed on Statute 6 and Statute 8 in the Schedule
to the Act to argue that the Executive Council and the Academic Council
have the power to decide on the conduct of the examination and to fix the
dates on which to hold them. The above-mentioned statutes are extracted
herein below:
"Statute 6 in the Schedule to the Act provides as
follows:-
"6. (1) The Executive Council shall, subject to the
control of the Court, have the management and
administration of the revenue and property of the
University and the conduct of all administrative
affairs of the University not otherwise provided
for.
(2) Subject to the provisions of the Act, the Statutes
and the Ordinances, the Executive Council shall in
addition to all other powers vested in it, have the
following powers, namely:
XXXX
XXXX
(x) to appoint Examiners and Moderators and if
necessary, to remove them, and to fix their fees,
emoluments and travelling and other allowances,
after consulting the Academic Council;
XXXX
XXXX"
Statute 8 in the Schedule to the Act provides as
follows:-
"8. Subject to the Act, the Statutes and the
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Ordinances, the Academic Council shall, in
addition to all other powers vested in it, have the
following powers, namely:
XXXX
XXXX
(v) to make arrangements for the instruction and
examination of persons not being members of the
University as may be necessary;
XXXX
XXXX
xi) to make recommendations to the Executive
Council in regard to the appointment of Examiners
and, if necessary, their removal and the fixation of
their fees, emoluments and travelling and other
expenses;
(xii) to make arrangements for the conduct of
examinations and to fix dates for holding them;
XXXX
XXXX
(xviii) to perform, in relation to academic matters,
all such duties and to do all such acts as. may be
necessary for the proper carrying out of the
provisions of the Act, the Statutes and the
Ordinances"
Mr. Rupal, ld. counsel refutes the submissions made by Mr. Hora and
submits that there is not fault in the decision making process.
12. Mr. Manik Dogra, ld. counsel appearing for the Petitioner in W.P.(C)
4029/2020 submits that the Petitioner, Mr. Kabir Sachdeva is in his final
year of the B.Com (H) programmed at Venkateswara College. He intends to
appear for the law entrance exams to be conducted in July, 2020. If the
exams are postponed, one entire academic year of his would be completely
disturbed and he would not be able to pursue the law course in the academic
session 2020-21. Mr. Dogra further points that it was categorically recorded
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on 15th June, 2020 before the Division Bench and again reiterated by DU on
23rd June, 2020, that online OBEs would not be postponed.
13. This Court takes notice of the fact that there have been three earlier
proceedings before this Court on the question of online OBEs. The first
petition was National Federation of the Blind v. UOI & Ors. [W.P. (C)
3411/2020] where the ld. Division Bench had recorded various difficulties
faced by visually impaired students in respect of online OBEs. However, the
conduct of online OBEs was not interfered with and certain directions were
issued. Thereafter, in Abhishek & Ors. v. University of Delhi [W.P. (C)
3268/2020], the challenge was to the online OBE and notification dated 14th
May, 2020. The ld. Single Judge in this case was assured that mock tests
would be conducted one week prior to the online OBEs and that DU would
also endeavor to provide infrastructural facilities.
14. Thereafter, in Prateek Sharma & Anr. v. UOI & Anr. [W.P.(C)
3199/2020] the ld. Division Bench is dealing with issues concerning
students having disabilities. On 26th June, 2020, a statement was made that
the online OBEs would commence on 1st July, 2020, however, on the
evening of 26th June, 2020, it was found that the online OBEs had been
postponed to 10th July, 2020. The said matter is pending before the ld.
Division Bench and notice of contempt has also been issued to DU.
15. Since the orders passed in National Federation of Blind & Ors.
(supra) as also Abhishek & Ors, (supra) several developments have taken
place that have completely changed the examination scenario for students:
i. Issuance of revised guidelines by UGC and the
various Ministries;
ii. Various technical glitches faced on the portal of
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DU during mock tests;
iii. The non-accessibility of internet and computer
facilities through Common Service Centres (CSCs) to
students from various parts of the country;
iv. Postponement of the examinations twice by DU
first to 10th July 2020 and now to after 15th August 2020,
without any certain date being announced;
v. Impact of such postponements as reflected in the
various grievances raised by students - some of which
are set out in paragraph 8 above;
vi. Several Universities and institutions such as State
of Maharashtra, Orissa, Haryana, MP, Punjab,
NALSAR (Hyderabad), NUJS (Kolkata), IIT
Kharagpur, IIT Bombay, Calcutta University, Lucknow
University, Punjab University, Dr. APJ Abdul Kalam
University etc.,
16. The above factors were not in existence when the ld. Division Bench
and the Ld. Single Judge had considered the legality of OBE examinations.
In fact, in Abhishek & Ors. (supra) the ld. Single Judge had kept the
validity and legality of online OBEs open. The relevant extract is set out
below:
"21. Learned senior counsel for the petitioner at
this stage states that on the above directions this
court may dispose of the Writ Petition but may keep
the issue of the validity of the 'OBE' on the grounds
of non-approval of the Academic Council open.
22. As submitted by learned senior counsel for
the petitioner, the issue about the powers of the
Academic Council in the present circumstances is
not dealt with and is kept open for adjudication in
appropriate proceedings."
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17. A situation similar to that which arose in Prateek Sharma & Ors.
(supra) has also arisen in the present petitions. On 6th July, 2020 and 7th
July, 2020 detailed orders were passed and Mr. Vinay Gupta, Dean,
Examination, DU and Dr. Sanjeev Singh, Joint Director, DU Computer
Centre had also appeared and broadly submitted to the Court that DU is
completely prepared for online OBEs from 10th July, 2020. The sudden
change of mind and postponement of the online OBEs to after 15th August,
2020, without any certain date, as per the decision of the High Powered
Committee dated 7th July, 2020 has been placed before this Court today.
Both the UGC and the Ministries are unanimous that there was no
compulsion on DU to conduct examinations for the final year but it appears
that there was a sudden change of mind after the meeting last evening,
despite the position before Court as of yesterday being that DU is prepared
to address all the grievances and go ahead with the conduct of examinations
from 10th July 2020.
18. Since the issue of postponement of the online OBEs is presently
pending before the ld. Division Bench in Prateek Sharma (supra), this
Court deems it appropriate to place all these writ petitions, subject to the
orders of Hon'ble the Chief Justice, before the ld. Division Bench along
with Prateek Sharma & Anr. v. UOI & Anr. [W.P.(C) 3199/2020]
tomorrow i.e., 9th July, 2020.
PRATHIBA M. SINGH
JUDGE
JULY 08, 2020/dk/T
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