Delhi High Court
Parth Sarthi Yadav vs All India Council Of Technical ... on 17 March, 2021
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on 17th March, 2021
+ LPA 67/2021
PARTH SARTHI YADAV ..... Appellant
Through: Mr. Apurb Lal and Mr. Raghav
Parwatiyas, Advs.
versus
ALL INDIA COUNCIL OF TECHNICAL EDUCATION & ORS.
..... Respondents
Through: Mr. Anil Soni, Standing Counsel with
Mr. Devesh Dubey, Adv. for R-1
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
: JASMEET SINGH, J (Oral)
CM APPL. 5678/2021(exemption)
Allowed, subject to all just exceptions.
The application is disposed of.
CM APPL. 5679/2021-DELAY OF 20 DAYS IN FILING THE APPEAL
This application has been preferred under Section 5 of the Limitation
Act for condonation of delay of 20 days in preferring the LPA.
Having heard the learned counsels for both sides and looking into the
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Signing Date:23.03.2021
10:36:00
reasons stated in this application, there are reasonable reasons for the
condonation of delay. We, therefore, condone the delay in filing LPA.
LPA 67/2021
1. The present appeal has been filed under Section 10 of the Letter
Patent Appeal Act of Delhi High court, seeking to set aside the impugned
order dated 21.12.2020 passed in W.P.(C) No. 4616/2020 and further
directions to the respondents to allow the appellant to appear in one paper
i.e., Applied Mathematics II.
2. Briefly stating, the undisputed facts are as under: -
I. The appellant was pursuing the course of Diploma in Civil
Engineering with Respondent No. 3 i.e., Chotu Ram Rural Institute of
Technology. As per the curriculum, a candidate has to pass 36 papers for
being awarded the Diploma. The course is for three years. As per the
instructions issued by the respondent No.2 Board of Technical Education, a
candidate can clear all the papers within two years beyond the period of
three years.
II. It is further an admitted case that the appellant could not clear
all the papers within the 2 years, over and above the 3 years. Even after the
period of 2 years the appellant was left with three papers namely:
a) Hydraulics,
b) Applied Mathematics-II and
c) Element of Electrical Engineering.
III. Since the appellant was not able to clear the above 3 papers
within the 2 years over and above the 3 years, a mercy chance was given by
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respondent No.2. A committee had been formed under the Chairmanship of
JD (Plg.) to examine the eligibility and norms for the students to appear in
the Mercy Examination of December, 2018 and with the subsequent
approval of Hon'ble Dy. CM/Minister of Education and the following was
decided:
a) Only one chance will be given to candidate to
pass including theory and practical examination of their
full Diploma course.
b) In future, no such opportunity will be
provided to the students who are eligible to appear in the
mercy chance examination held in December-2018.
c) No such opportunity on any ground shall be
provided in future, except in the condition of natural
calamities and disaster.
d) This will not be treated as precedent for
future.
3. In the mercy chance, the petitioner appeared in the examination of the
three papers. It is also admitted that the appellant cleared the other 2 papers
namely, Hydraulics and Elements of Electrical Engineering but failed in the
Applied Mathematics-II paper. Since the appellant did not clear the paper of
Applied Mathematics-II, consequently he was not awarded a diploma. It is
in this view of the matter, that the appellant filed W.P.(C) No. 4616/2020
seeking the following prayers: -
"(a) Issue of writ of mandamus or any other appropriate
writ or directions, thereby directing the Respondents to
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allow the Petitioner to appear for his paper i.e. Applied
Mathematics-I1 under mercy chance.
(b) Direct the Respondents No.1 & 2 to provide marks
sheet for the papers which Petitioner appeared in mercy
chance.
(c) Pass such other and further order as this Hon'ble Court
deems fit and proper in the interest of justice."
4. The case of the appellant in the writ petition was that on 19.12.2018,
the petitioner was suffering from high fever, when he appeared in the
examination for Applied Mathematics-II, and within one and a half hours of
his examination, he fainted and was rushed by the guard and his family
members to the doctor.
5. A medical certificate dated 26.06.2019 was also annexed, certifying
that the appellant was under doctor's treatment from 18.12.2018 to
19.12.2018 for viral fever.
6. The learned Single Judge considered the entire material before him as
well as the counter-affidavits filed by the AICTE as well as respondent No.2
i.e., Board of Technical Education. The learned Single Judge further, relied
on the additional affidavit filed on 06.11.2020 by respondent No.2 wherein,
respondent No.2 has categorically stated on an affidavit that the appellant
had not fainted during the examination. The affidavit further, annexed the
report of the invigilator certifying the said fact. In addition, respondent No.2
also filed copy of the answer sheets of the petitioner for Applied
Mathematics-II. As per the answer sheets, it was borne out that out of 18
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questions, the appellant had answered 17 questions and secured 11 marks in
total. The only question left by the appellant was of 2 marks and the
minimum pass percentage was 40%.
7. The learned Single Judge held that even assuming that the appellant
had attempted the 18 questions, he could have added at best 2 more marks
taking his total to 13 which still would not have made the pass percentage of
40%. In this view of the matter, the learned Single Judge was pleased to
dismiss the writ petition. In addition the learned Single Judge also opined
that the appellant had approached the Hon'ble Court with unclean hands and
the record of the appellant produced by the respondent belied the case set up
by the appellant in the writ petition.
8. The appellant has challenged the said order and the only ground
addressed before us was "Sympathy and the Career of the Appellant".
9. The learned counsel for the appellant invoked this court's sympathy
and urged us that considering the fact, that the appellant belongs to a poor
family and has already cleared 35 papers out of 36 papers, an opportunity to
appear in one paper must be permitted to save his future.
10. We have carefully gone through the papers of the writ court and
considered the submissions for the learned counsel for the appellant.
11. The ground of sympathy has been invoked by counsels as well as
parties regularly. We may quote of the conversation between Justice Oliver
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Wendell Holmes and his friend Judge Learned Hand.
"One day after enjoying lunch together, two of the
twentieth century's more esteemed jurists, Justice Oliver
Wendell Holmes and Judge Learned Hand, were parting
ways when Judge Hand turned towards the Justice and
exclaimed, "Do justice sir, do justice." Holmes promptly
chided Hand: "My job is not to do justice, your honor.
Rather, my job is to apply the law". 1
12. We may also refer to the observations of the Hon'ble Apex Court in
Ashok Kumar Thakur vs University Of Himachal Pradesh & Ors. 2
"5. Considering that this case concerns the career of a
young student we tried to look at the matter with all
possible sympathy and consideration but we do not see
how we can direct or compel an authority to do
something which is beyond its legal competence to
do."
13. We also rely on the observations of this Hon'ble Court in Guru
Nanak Dev University vs. Parminder Kr. Bansal, 3
"7. We are afraid that this kind of administration of
interlocutory remedies, more guided by sympathy quite
often wholly misplaced, does no service to anyone.
From the series of orders that keep coming before us in
academic matters, we find that loose, ill-conceived
sympathy masquerades as interlocutory justice
exposing judicial discretion to the criticism of
degenerating into private benevolence. This is
subversive of academic discipline, or whatever is left
of it, leading to serious impasse in academic life.
Admissions cannot be ordered without regard to the
Justice and the Rule of Law: A Contradiction in Terms? By Bobby R Baldock (also quoted by Hon'ble
Mr. Justice Rajiv Shakdher in W.P.(C) No. 5960/2012 in order dated 01.10.2012.
1973 2 SSC 298.
[1993] 4 SCC 401
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eligibility of the candidates. Decisions on matters
relevant to be taken into account at the interlocutory
stage cannot be deferred or decided later when serious
complications might ensue from the interim order
itself. In the present case, the High Court was
apparently moved by sympathy for the candidates that
by an accurate assessment of even the prima facie legal
position. Such orders cannot be allowed to stand. The
courts should not embarrass academic authorities by
themselves taking over their functions."
14. Bearing this principle in mind and to apply the law, suffice it to say
that there is no provision under the rules of respondent No.2 Board of
Technical Education for giving another chance on sympathetic grounds. As
per para 16.5 of Compendium Rules of respondent No.2 Board of Technical
Education the time limit for completion of diploma is as under: -
"A student admitted to any diploma course will be
required to complete the Diploma within a period of not
exceeding two years plus the course duration. This period
shall be irrespective of any reason for not taking the
examination of the Board, or, detention on the basis of
shortage of attendance / sessional or
cancellation/disqualification from exam, for adopting the
unfair means. No extension beyond the prescribed period
will be permissible and the student will not be allowed to
take any examination of the Board beyond this prescribed
period. "
15. In addition, Para 18 of the Compendium Rules state as under: -
"A candidate who does not complete his diploma/ post
diploma/ certificate programme within the course
duration plus two years shall stand disqualified for the
award of Diploma/ Post Diploma/ Trade Diploma."
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Signing Date:23.03.2021
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16. Despite the appellant having failed to clear all his 36 papers within the
said period of 5 years (3+2), one more chance was given to the appellant as
a mercy chance but the appellant still failed to clear the paper for Applied
Mathematics II.
17. There is no provision in the Compendium of Rules and Regulations of
respondent No.2 Board of Technical Education which permits a "Second
Mercy Attempt." In addition, as held by the learned Single Judge the case
set up by the appellant in the writ petition of him running high temperature
and having fainted also is belied by the documents on record.
18. In view of the matter, we are of the opinion there is no infirmity in the
order dated 21.12.2020 passed by the learned Single Judge in W.P. (C)
No.4616 of 2020.
19. In view of the aforesaid facts, reasons and judicial pronouncements,
no error has been committed by the learned Single Judge while deciding
W.P.(C) No.4616/2020 vide judgement and order dated 21.12.2020. Hence
there is no substance in this LPA and the same is dismissed.
CHIEF JUSTICE
JASMEET SINGH, J
MARCH 17, 2021
'so'
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Digitally Signed
By:PANKAJ KUMAR
Signing Date:23.03.2021
10:36:00
