Delhi High Court
Aviral Shankar Pandey Through His ... vs University Of Delhi Through Its ... on 16 September, 2020
Digitally Signed By:SINDHU
KRISHNAKUMAR
Signing Date:16.09.2020 19:08:35
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10th September, 2020.
Date of decision: 16th September, 2020.
+ W.P.(C) 5623/2020 & CM APPLs.20372/2020, 20373/2020,
22041/2020
AVIRAL SHANKAR PANDEY THROUGH HIS FATHER
VINAY SHANKAR PANDEY ..... Petitioner
Through: Mr. V. Shekhar, Sr. Advocate with
Ms. Sheetal Rajput, Mr Shashank
Shekhar and Mr. Mukesh Kumar
Singh, Advocates.
versus
UNIVERSITY OF DELHI THROUGH ITS
REGISTRAR ..... Respondent
Through: Mr. Mohinder Rupal and Mr. Hardik
Rupal, Advocates for Delhi
University.
Ms. Subhash Prashar & Mr. Virender
Pratap Singh Charak, Advocates for
R-2. (M:8076023522)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. The question raised in this case is - Whether marks in Computer
Science in class XII ought to be considered while adjudging merit for
admission to the B.Sc. (Hons.) Physics course in University of Delhi
(hereinafter 'DU')? The immediate and natural answer would be a `YES', as
there can be no doubt in anyone's mind that Computer Science has
enormous relevance to Physics, and as a discipline, Computer Science
would be taught and would form an integral part of a Physics (Hons.)
graduation program.
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2. However, in the context of the present petition, the issue has gotten a
bit complex, owing to the fact that DU's Prospectus/Brochure and Bulletin
of Information have not been amended at least for the last 3 to 4 years and
the prevalent eligibility conditions as advertised do not consider Computer
Science marks as part of `Best of four' while adjudging merit for the B.Sc.
(Hons.) Physics course. Thus, while the Petitioner insists that his Computer
Science marks in class XII should be considered in calculation of the
aggregate of best-of-four subjects for admission to B.Sc. (Hons.) Physics,
DU argues the contrary.
3. The Petitioner is a Class XII pass-out from the science stream of the
The Indian Certificate of Secondary Education Board (hereinafter 'ICSE
Board'). His marks in Class XII are as under:
Subjects Percentage
Marks
Computer Science 100
4. The Petitioner wishes to pursue B.Sc. (Hons.) Physics in DU in the
academic year 2020-21 and has registered for the said course. As per the
Bulletin of Information for Admission to Undergraduate Courses (2020-
2021), the eligibility criteria to be satisfied for this course are as under:
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"2.9 Merit-based admission to courses offered through the Faculty of
Science and Inter-Disciplinary & Applied Sciences
Course Course-specific Eligibility Criteria
and Combination of Subjects for
Calculation of Merit
xxxx xxxx
xxxx xxxx
B.Sc. (Hons.) Chemistry/ Physics/ • 55% or more marks in the
Polymer Science aggregate of Physics,
Chemistry and Mathematics
and 50% or more marks in one
compulsory language.
• Merit will be calculated based
on aggregate percentage in
Physics, Chemistry and
Mathematics
5. The Petitioner's results were declared by the ICSE Board on 14th July,
2020. He scored a centum in Computer Science and realized that he has a
very high chance of getting admitted into one of the top colleges in DU, if
the marks of this subject are counted for the aggregate of best-of-four
subjects. The Petitioner also came to know that a representation had been
made by one - Mr. Rajeev Kumar Dubey to DU on 24th July, 2020, raising
grievances about the said eligibility criterion and requesting DU to add
Computer Science as one of the subjects for calculation of aggregate for
admission to B.Sc. (Hons.) Physics. However, DU rejected the said
representation on 29th July, 2020. A copy of the said rejection was
forwarded to the Petitioner as well.
6. A writ petition in the form of a PIL being W.P(C) 4710/2020 dated
21st July, 2020, was filed before this Court by Mr. Dubey. The said writ
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petition was dismissed by a ld. Division Bench on 5th August 2020, as
withdrawn.
7. Having come to know about the dismissal of Mr. Dubey's PIL, the
Petitioner herein filed a writ petition before the Supreme Court being W.P.
(C) 857/2020. In the said writ petition, vide order dated 21st August, 2020,
he was given liberty to approach this Court. The order of the Supreme Court
reads as under:
"Learned counsel appearing for the petition prays
for and is allowed to withdraw this petition with
liberty to approach the High Court. The High
Court may consider, notwithstanding the dismissal
of a public interest litigation on the same issue.
Accordingly, the writ petition is dismissed as
withdrawn with the liberty aforesaid."
8. The present petition has been filed on the strength of the order of the
Supreme Court, extracted above. On 25th August 2020, notice was issued in
this writ petition and an affidavit was called for from the DU. Today, parties
have made their submissions.
Submissions
9. Mr. V. Shekhar, ld. Sr. Counsel appearing for the Petitioner submits
that the Petitioner does not seek a change in the eligibility criteria for
admission to B.Sc. (Hons.) Physics i.e. he is not seeking deletion of
Chemistry. However, he merely seeks addition of Computer Science as one
of the subjects for calculation of the aggregate that is considered for
deciding the merit list. He submits that while the score in Physics is
considered to be relevant for admission to the B.Sc. (Hons.) program in
Computer Science, the vice- versa is not true. The submission of ld. counsel
is that the exclusion of Computer Science from the eligibility criteria is
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irrational, arbitrary and defies logic. He submits that for studying Physics, a
knowledge of Computer Science would be very relevant.
10. Dealing with the objections raised by the DU in its counter affidavit,
it is argued by ld. Sr. counsel for the Petitioner that though this is stated to
be a policy matter, following the judgment in Kumari Shrilekha Vidyarthi
v. State of U.P & Ors. [1991 (1) SC 212], judicial review in policy matters
is completely permissible. If any condition or policy decision is irrational or
discriminatory, then the same can be quashed. It is submitted that exclusion
of Computer Science is bad, and therefore the same deserves to be interfered
with. Reliance is placed on the Full Bench decision of this Court in Jayshree
Ravi & Anr. v. University of Delhi & Anr. [53 (1994) DLT 801], wherein
the criteria of minimum 50% marks B.A/M.A examinations for LL.B first
year entrance test was quashed and held to be irrational, improper and
arbitrary.
11. It is further urged that though DU relies upon the decision of the
Academic Council and other relevant bodies, there is no reasoning given,
whatsoever, for excluding Computer Science. Hence there is a complete
non-application of mind and lack of intelligible differentia in the
classification that is created. Reliance is also placed on the course content
for B.Sc. (Hons.) Physics, which does not have any Chemistry related
subjects in the course. However, computer related subjects are there in
almost all semesters. This itself shows the relevance of Computer Science in
a B.Sc. (Hons.) Physics course. Reference is also made to other
universities/colleges such as St. Xaviers College, and Banaras Hindu
University (BHU), which provide great flexibility in considering the
subjects for adjudging the merit list. It is finally urged that inclusion of
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Computer Science would not cause any detriment to other students,
however, its exclusion is detrimental to the Petitioner.
12. On the other hand, Mr. Mohinder Rupal, ld. counsel for DU places
enormous reliance on paragraphs 10 to 15 of his Counter Affidavit, which
according to him give adequate reasons for not including Computer Science.
He submits that the entire challenge is bereft of merit as the Bulletin of
Information was released in June 2020, but the challenge is made only after
the Class XII results were announced. He further submits that the Petitioner
was not aggrieved by the eligibility criteria for B.Sc. (Hons.) prior to the
results being announced, which itself shows that because the Petitioner has
scored a 100/100 in Computer Science, he wants the said subject to be
considered.
13. It is further argued by Mr. Rupal, ld. counsel, that the judgment of the
ld. Division Bench of this Court in Charanpal Singh Bagri and Ors. v.
University of Delhi & Ors. [W.P. (C) 6751/2019, decided on 14 th June,
2019] makes it clear that before the eligibility criteria can be amended, there
are various steps that have to be taken. He submits that the University
Grants Commission's (hereinafter 'UGC') regulations provide a mandatory
60 days period before notifying any change in the eligibility criteria.
14. Mr. Rupal further submits that by the time the writ petition was filed,
the registration process had already commenced and other students could be
put to enormous disadvantage, if the criteria are changed at this stage, when
the admission process is at an advanced stage. According to him, the
addition of Computer Science would be a fundamental change in the
eligibility criteria, which cannot be directed suddenly. Moreover, there is
sufficient logic and rationale behind non-inclusion of Computer Science. It
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is his submission that experts ought to be allowed to take decisions in these
kinds of situations. He, however, agrees to the fact that the eligibility criteria
have remained the same over the last 3 to 4 years. Mr. Rupal, ld. counsel
relies upon the following judgments:
• Charanpal Singh Bagri & Ors. (supra)
• K. Manjushree v. State of A.P. and Ors. [Civil Appeal No.
1313/2008, Decided on 15th February, 2008] - Para 28
• Parmender Kumar and Ors. v. State of Haryana and Ors [Civil
Appeal No. 9717/2011, Decidd on 14th November, 2011] - Para 21
• Vidhi Himmat Kataria and Ors. v. The State of Gujarat and Ors. [
W.P. (C) 885, 900 AND 1026/2019, Decided on 4 th October, 2019] -
Para 8
• N. Vasundara v. State of Mysore and Ors. [W.P. (C) 606/1970,
Decided on 15th April, 1971] - Para 10
15. In rejoinder, Mr. Shekhar, ld. Sr. Counsel urges that the process has
not yet started and the submission of DU that the admission process has
commenced is incorrect. He highlights the fact that DU on one hand argues
that the petition is pre-emptive in nature and on the other, it is now being
urged that the process has started and the petition is delayed. As far as the
Petitioner is concerned, he submits that when the representation of Mr.
Dubey was rejected by the DU, the cause of action had arisen and hence
steps have been taken for filing the writ petition.
Analysis and Findings
16. A perusal of the Bulletin of Information prescribes the following
eligibility criteria of DU for B.Sc. (Hons.) Computer Science and B.Sc.
(Hons.) Physics:
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2.8. Merit-based admission to B.Sc. (Hons) courses offered through the
Faculty of Mathematical Sciences
Course Course-specific Eligibility Criteria and
Combination of Subjects for
Calculation of Merit
B.Sc. (Hons.) Computer Science Merit will be calculated based on "Best
Four" of Mathematics, one language
and two other subjects listed as
academic/elective subjects, as specified
in List A and List B above, as per the
following:
• 60% or more marks required in
Mathematics;
• 60% or more marks in aggregate of
four subjects including Mathematics,
one language and any two of Physics,
Chemistry and Computer
Science/Informatics Practices
• Applicants from other streams (with
Mathematics in Class XII), will have a
disadvantage of 2% in aggregate of
required four subjects
xxxx xxxx
2.9 Merit-based admission to courses offered through the Faculty of Science
and Inter-Disciplinary & Applied Sciences
Course Course-specific Eligibility Criteria
and Combination of Subjects for
Calculation of Merit
xxxx xxxx
B.Sc. (Hons.) Chemistry/ Physics/ •55% or more marks in the aggregate
Polymer Science of Physics, Chemistry and
Mathematics and 50% or more
marks in one compulsory language.
• Merit will be calculated based on
aggregate percentage in Physics,
Chemistry and Mathematics
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17. The above extracts clearly show that insofar as the B.Sc. (Hons.)
Computer Science course is concerned, Physics, Chemistry and Computer
Science are part of the best-of-four subjects which would be considered for
admission. However, in the case of B.Sc. (Hons.) Physics, Computer
Science is not included.
18. The relevance of Computer Science in an under-graduate Physics
course need not be emphasised. Any course in Physics would require
teaching of Computer Science. In the counter affidavit of DU itself, it is
admitted that computer programming is taught in the B.Sc. (Hons.) Physics
course to students. The relevant extract of the counter reads as under:
"Computer programming is taught to the B.Sc.
Physics students and therefore even students who
did not opt for computer programming related
courses in their school do not face problems while
solving physics problems using computers."
Thus, the non-inclusion of Computer Science as part of the subjects for
calculation of merit for admission, does not stand to reason.
19. Moreover, technological developments have shown that Computer
Science would be a subject which would be relevant not just for Science
stream under-graduate courses but even for various other courses such as
Economics, Statistics, Finance etc., Flexibility and choice in subjects is
absolutely essential, in as much as, it is not uncommon to see students
wishing to pursue Economics or History, also wanting to study Computer
Science. Such strict boundaries in fact tend to ignore the overlaps and
requirements of modern education. Even students studying Economics and
Statistics may have pursued Computer Science in their XII standard and it
cannot be said that the said subject is not relevant for pursuing B.A. in
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Economics or Statistics. Any rigidity in providing combination of subjects
results in stultifying growth of students.
20. A perusal of the Information Bulletin of DU and the eligibility criteria
clearly shows that the same can be better adapted to the times and the strict
boundaries between subject streams need not be maintained. Schools across
India offer various multi-disciplinary courses at the XI and XII grade or in
the Pre-University courses. Since these students form the pool of students
who could seek admission to undergraduate courses in Delhi University, the
eligibility criteria ought to become more flexible. There is a clear need to
have a relook at the eligibility criteria and the structuring of courses. In fact,
a perusal of the recently announced National Education Policy 2020 ("NEP
2020") also highlights the need for offering inter-disciplinary courses and
permits a student to obtain a dual majors bachelor's degree. The relevant
extract from the Introduction of the NEP 2020 reads as under:
"The fundamental principles that will guide both
the education system at large, as well as the
individual institutions within it are:
• xxxx
• flexibility, so that learners have the ability to
choose their learning trajectories and
programmes, and thereby choose their own paths
in life according to their talents and interests;
• no hard separations between arts and
sciences, between curricular and extra-curricular
activities, between vocational and academic
streams, etc. in order to eliminate harmful
hierarchies among, and silos between different
areas of learning;
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• multidisciplinarity and a holistic education
across the sciences, social sciences, arts,
humanities, and sports for a multidisciplinary
world in order to ensure the unity and integrity of
all knowledge;
• xxxx"
Globally even, this is a recognized phenomenon i.e. courses in multiple
disciplines being allowed to be combined with each other, though they may
be contrary to the strict and traditional perception of education in separate
slots of Humanities, Science and Commerce.
21. Thus, this Court is of the opinion that ideally Computer Science ought
to be a subject which should be taken into consideration for drawing the
merit list for taking admission to B.Sc. (Hons.) Physics or any other such
related subjects. However, the question here is as to whether the same can be
directed at this stage by the Court.
22. Admittedly, the Information Bulletin of DU was released in June 2020.
In 2019, when DU had amended its eligibility criteria, several writ petitions
had been filed which had resulted in the judgment titled Charanpal Singh
Bagri and Ors. (supra). The ld. Division Bench of this Court had held that
DU had failed to follow the mandatory condition of publication in changing
the eligibility conditions for admission, as per Rule 14(1) of the Regulations
issued by the University Grants Commission (UGC), notified on 6th June,
2019. The operative portion of the Division Bench order reads:
"18. In the circumstances, the W.P.(C) 6751/2019,
W.P.(C) 6770/2019 & W.P.(C) 6774/2019 are
disposed of with directions to the University of
Delhi and the University Grants Commission to
allow the students to apply for the under-graduate
courses for the year 2019-20 to the University of
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Delhi on the basis of the eligibility criteria for
admissions to the under-graduate courses for the
year 2018-19.
19. Since a submission, during the course of
submissions, was made that the Delhi University
portal for filing up the common admission form
would close today, the University of Delhi shall
permit students to apply for the under-graduate
courses to the University of Delhi till the date
22.06.2019.
20. The above directions, however, shall not
preclude the University of Delhi from making the
changes in the eligibility criteria for the
forthcoming years to its under-graduate courses as
required, to keep education in tune with the
necessities of the present day as also for
maintenance of high standards of education, but
the same can only be done in accordance with law,
which would require a minimum of six months of
public notice to the public at large of the eligibility
criteria for admission to its under-graduate
courses."
As a result, the eligibility criteria for the year 2019-20 were directed to be
the same as the criteria published in 2018-19. The 2018-19 eligibility criteria
were itself taken from the previous academic year.
23. Ld. counsel for DU has also informed the Court that after the
judgment in Charanpal Singh Bagri and Ors., (supra), various students
have raised challenges and have sought directions that DU should be
allowed to adopt new criteria and petitions are pending before this court.
24. In Jayshree Ravi & Ors Vs. University of Delhi AIR 1993 Delhi 171
relied upon by the Petitioner, the Full Bench of Delhi High Court was
dealing with the question as to whether the fixation of 50% minimum marks
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for students from all streams for admission to the LL.B. course in DU was
rational and legal. The Court had by interim orders allowed the Petitioners to
take the entrance examination and finally held that the said fixation of 50%
lacked any rational basis. The said condition was then quashed. The said
judgement would not assist the Petitioner to seek relief in the present
petition in as much as the LL.B. course had a two-level eligibility - first a
minimum percentage for attempting the entrance examination and thereafter
qualifying the entrance examination itself. In the present case, the
computing of the merit is on the basis of the aggregate of best-of-four
subjects scored in Class XII and there is no entrance examination at all. The
two situations cannot be equated.
25. Owing to the pandemic situation, DU has not changed the eligibility
criteria for the academic year 2020-21 and is following the same criteria as
was prevalent in 2019-2020 as per ld. counsel for DU. Thus, the criteria
which is presently under challenge has been in operation for more than 3 to
4 years. The ld. Division Bench had made it clear that DU would have the
flexibility to make changes to its eligibility criteria, in accordance with law.
However, for whatever reasons, no change has been made for the current
academic year.
26. Students who have studied in Class XII and who have already scored
marks in various subjects would already be having an assessment as to the
aggregate of their best-of-four subjects and the colleges where they may be
entitled to get admission. At this stage, directing Computer Science to be
added to the eligibility criteria for B.Sc. (Hons.) Physics would upset the
apple cart, i.e. various students may be disadvantaged and various students
like the Petitioner would obtain an advantage. Adding Computer Science
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may tilt the balance and jeopardise those students who appeared in the Class
XII board examinations on the presumption that Computer Science would
not be part of Best-of-four for the B.Sc. (Hons.) Physics undergraduate
course.
27. A three judge bench of the Supreme Court in K.Manjushree (supra)
has held as under:
"28. In Maharashtra State Road Transport
Corporation v. Rajendra Bhimrao Mandve
MANU/SC/0737/2001:(2002)ILL J819SC, this
Court observed that "the rules of the game,
meaning thereby, that the criteria for selection
cannot be altered by the authorities concerned in
the middle or after the process of selection has
commenced." In this case the position is much
more serious. Here, not only the rules of the game
were changed, but they were changed after the
game has been played and the results of the game
were being awaited. That is unacceptable and
impermissible.
Thus, whether it is in the case of selection for employment or admission in
educational courses, the rules of the game cannot be changed after the race
has begun. The process of admissions to undergraduate courses is a two year
long process which commences with students taking admission in class XII,
choosing the subjects, undertaking preparations, giving various tests and
examinations finally culminating in the Class XII board exams or the Pre-
University examinations. Students have specific targets in mind and prepare
to achieve the same. They are aware of the nitty-gritties of the eligibility
criteria for various courses and are extremely focussed on which
Universities/Colleges they wish to seek admission. Most students who wish
to seek admission in B.Sc. (Hons.) Physics course in DU would be more
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than aware that Computer Science will not be counted in calculating merit.
They would have undertaken their preparation and given the examination in
the said backdrop.
28. In the present case, the process has started in June 2020, examinations
have been conducted, results have already been announced and the
registration process has already been completed. Only the cut-offs are to be
announced. At this stage, this Court is of the opinion that change in the
eligibility criteria would not be permissible as the race has already begun.
The hardship which would be caused would be much more, if this Court
interferes with the admission process at this stage. The judgments cited by
both sides in terms of the power of this Court for judicial review is not in
doubt. The question as to whether the Court ought to exercise the said power
would depend on the facts and circumstances of each case. In the present
case, at this stage, this Court is not inclined to direct the addition of
Computer Science in the calculation of the aggregate best of four percentage
for admission to the B.Sc. (Hons.) Physics course.
29. However, DU is directed to take a relook at its course structures and
the eligibility criteria and modify the same, well within time, so that students
like the Petitioner are not put to hardship in the forthcoming academic years.
Needless to add, the same would have to be done in complete compliance of
the applicable regulations and after seeking approvals, as per the statutes
applicable to the University.
30. The Petitioner may not get any solace from the above directions as he
may not get the benefit of Computer Science being added for calculating
best-of-four subjects in his case. However, the fact that the challenge is
sought to be raised after the Board results were announced and the delay in
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raising the challenge, leaves no room for any other directions for being
passed.
31. The petition is accordingly disposed of, in the above terms. All
pending applications are also disposed of.
PRATHIBA M. SINGH, J.
SEPTEMBER 16, 2020
Rahul/Ak/A
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