Delhi High Court
Gunisha Aggarwal vs University Of Delhi And Ors on 11 October, 2021
$~57 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision 11th October, 2021
+ W.P.(C) 11676/2021
GUNISHA AGGARWAL ..... Petitioner
Through: Mr. Parag Tripathi, Senior Adv. with
Mr. Vipul Ganda, Mr. Annirudh
Sharma and Mr. Aman Choudhary,
Advocates
versus
UNIVERSITY OF DELHI AND ORS ..... Respondents
Through: Mr. Mohinder JS Rupal and
Ms. Bhawani Vemban, Advocates for
University of Delhi
Mr. Rupesh Kumar, Advocate with
Ms. Neelam Sharma, Ms. Pankhuri
Shrivastava, Mr. Pravesh Bahuguna,
Mr. Alekshendra Sharma, Advocates
for R- 6/CBSE.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
PRATEEK JALAN, J. (Oral)
The proceedings in the matter have been conducted through
video conferencing.
CM APPL. 36148/2021 (exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
W.P.(C) 11676/2021 with CM APPL. 36149/2021 (for stay)
1. The petitioner has filed the present writ petition claiming the
following reliefs:-
"1. Pass an appropriate writ of Certiorarified
Mandamus, order or direction thereby quashing the
policy of the Respondent No.1 to consider marks awarded
by different Boards at par without any equalizing
mechanism. and;
2. Pass an appropriate writ of Mandamus, order or
direction thereby directing the Respondent No.1 to 5 to
notify a scaling mechanism either percentile or any other
mechanism whereby the marks scored by students of
different state examination boards are
equalized/moderated; or;
3. Pass any such other/further order as this Hon'ble
Court may deem fit."
The University of Delhi ["the University"], four of its affiliated
colleges, and the Central Board of Secondary Education ["CBSE"]
have been arrayed as respondents.
2. The petitioner has completed Class XII from a school affiliated
to the CBSE. As the examinations were not held in the year 2021 due
to the Coronavirus pandemic, the petitioner has been assessed on the
basis of a scheme approved by the Supreme Court of India vide order
dated 17.06.2021 in W.P.(C) 522/2021 [Mamta Sharma vs. Central
Board of Secondary Education & Ors.]. She has secured the following
marks:-
SUBJECT SUBJECT THEORY PRACTICAL TOTAL TOTAL (IN POSITON
CODE NAME WORDS) AL
GRADE
301 ENGLISH CORE 077 020 097 NINETY A1
SEVEN
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Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
030 ECONOMICS 079 020 099 NINETY A1
NINE
041 MATHEMATICS 079 020 099 NINETY A1
NINE
054 BUSINESS 079 020 099 NINETY A1
STUDIES NINE
055 ACCOUNTANCY 079 020 099 NINETY A1
NINE
500 WORK - A1
EXPERIENCE
502 HEALTH & - A1
PHYSICAL
EDUCATION
503 GENERAL - A1
STUDIES
RESULT: PASS
She has thereafter applied to the University for admission to its
undergraduate courses, but despite her high marks, she has found
herself unsuccessful in the first cut-off list for her preferred course, i.e.
B.A. Honours (Economics). She has however secured admission in
Lady Shri Ram College in B.A Programme (Economics and Computer
Applications).
3. The grievance sought to be ventilated by the petitioner is that
students who have taken the Class XII examinations from some of the
State Boards have been marked on a much higher scale than the CBSE
and ICSE [Indian Certificate of Secondary Education] examinees. As
a result, the students from those boards have, according to the
petitioner, achieved disproportionate admission in the University. She
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
therefore seeks an order quashing the University's policy to consider
the marks awarded by different Boards at par, and a direction upon the
University to evolve a mechanism for scaling of the marks scored by
students of different boards.
4. Mr. Vipul Ganda, learned counsel for the petitioner, seeks to
rely upon a chart to contend that the percentage of CBSE applicants
who have secured admission is much lower than the percentage of
successful candidates from the State boards in question. He submits
that the University is required to take into account the differences in
the scheme of marking of various examining bodies in order to arrive
at the relative merit of the competing candidates.
5. Mr. Mohinder J.S. Rupal, learned counsel for the University,
who appears on advance notice, submits that as a central university,
Delhi University cannot distinguish between CBSE students and
students of State boards in the manner suggested. He states that the
policy of the University does not permit an assessment of the relative
marks granted by the several boards from which candidates have
passed their qualifying examinations, which in any event would be a
cumbersome exercise.
6. Having heard learned counsel for the parties, I am of the view
that the relief sought by the petitioner cannot be granted in the present
petition under Article 226 of the Constitution. The matter, as the
petitioner herself acknowledges, is one of policy of the University.
The judgments of the Supreme Court inter alia in Rachna & Others
vs. Union of India and Another (2021) 5 SCC 638 and National Board
of Examinations vs. G. Anand Ramamurthy and Others (2006) 5 SCC
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Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
515 [paragraph 7] make it clear that in matters of policy, particularly
in academic matters, the writ court should be slow to interfere.
Paragraph 43 of the judgment in Rachna is reproduced below:
"43. It is the settled principle of law that policy
decisions are open for judicial review by this Court for a
very limited purpose and this Court can interfere into
the realm of public policy so framed if it is either
absolutely capricious, totally arbitrary or not informed
of reasons and has been considered by this Court in
Union of India v. M. Selvakumar [Union of India v. M.
Selvakumar, (2017) 3 SCC 504 : (2017) 1 SCC (L&S)
668] . The relevant portion is as under : (SCC p. 523,
para 47)
"47. There is one more reason due to which we
are unable to subscribe to the view taken by the
Madras High Court [M. Selvakumar v. Central
Administrative Tribunal, WP No. 18705 of 2010,
order dated 24-1-2012 (Mad)] and the Delhi High
Court [Tushar Keshaorao Deshmukh v. Union of
India, 2014 SCC OnLine Del 1977] . The
horizontal reservation and relaxation for
physically handicapped category candidates for
Civil Services Examination, is a matter of
governmental policy and the Government after
considering the relevant materials has extended
relaxation and concessions to the physically
handicapped candidates belonging to the reserved
category as well as general category. It is not in
the domain of the courts to embark upon an
inquiry as to whether a particular public policy is
wise and acceptable or whether better policy
could be evolved. The Court can only interfere if
the policy framed is absolutely capricious and
non-informed by reasons, or totally arbitrary,
offending the basic requirement of Article 14 of
the Constitution.""
(Emphasis supplied.)
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
To the same effect is the Division Bench decision of this Court in Dr.
Rajat Duhan and Others vs. All India Institute of Medical Sciences
and Others 2019 SCC OnLine Del 11437 [judgment dated 22.11.2019
in LPA 655/2019].
7. Mr. Ganda cited the following extract of the decision of the
Supreme Court in Directorate of Film Festivals and Others vs.
Gaurav Ashwin Jain and Others (2007) 4 SCC 737:-
"16. The scope of judicial review of governmental policy
is now well defined. Courts do not and cannot act as
Appellate Authorities examining the correctness,
suitability and appropriateness of a policy, nor are
courts advisors to the executive on matters of policy
which the executive is entitled to formulate. The scope
of judicial review when examining a policy of the
Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution, or opposed to any
statutory provision or manifestly arbitrary. Courts
cannot interfere with policy either on the ground that it
is erroneous or on the ground that a better, fairer or
wiser alternative is available. Legality of the policy, and
not the wisdom or soundness of the policy, is the subject
of judicial review (vide Asif Hameed v. State of J&K
[1989 Supp (2) SCC 364] , Sitaram Sugar Co. Ltd. v.
Union of India [(1990) 3 SCC 223] , Khoday Distilleries
Ltd. v. State of Karnataka [(1996) 10 SCC 304] , BALCO
Employees' Union v. Union of India [(2002) 2 SCC 333] ,
State of Orissa v. Gopinath Dash [(2005) 13 SCC 495 :
2006 SCC (L&S) 1225] and Akhil Bharat Goseva Sangh
(3) v. State of A.P. [(2006) 4 SCC 162] )"
(Emphasis supplied.)
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
This judgment does not derogate from the aforesaid principle. In fact,
the Supreme Court has reiterated the narrow scope of judicial review
when it comes to policy matters.
8. The policy of the University in the present case does not
demonstrate such arbitrariness or irrationality as to warrant the
interference of the writ court. The University receives applications
from students who have taken the examinations through several
boards. The petitioner's argument would require it, in each academic
year, to analyse all the applications received, come to a conclusion
about the relative standard of assessment in each board and then
devise an equalisation formula. If the University authorities have not
found it necessary to adopt such a course, that is, in my view,
unexceptionable as a policy decision. As held in the decisions
mentioned above, the writ court cannot examine the wisdom or merits
of the policy, but test it only on the anvil of arbitrariness and
irrationality.
9. It may be mentioned that the petitioner has participated in the
admission process pursuant to the Bulletin of Information released by
the University in July, 2021. It is only at this stage, after the first cut-
off list has been announced, that the present writ petition has been
filed. Thousands of candidates have applied on the basis of the policy
disclosed in the Information Bulletin, and their positions can also not
now be disturbed by directing implementation of a different policy.
Mr. Ganda has not been able to demonstrate any practice in previous
years which lends support to the petitioner's case that the University is
bound to take into account the differentiation in marks awarded by
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Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
different boards while determining the cut-off for undergraduate
admissions.
10. As far as the present year is concerned, the petitioner's
grievance with regard to the assessment undertaken by the CBSE is
also untenable. As a consequence of the pandemic, in a situation
where it was impossible to hold examinations, the CBSE came up with
an alternative scheme of assessment which was approved by the
Supreme Court. The Supreme Court came to the conclusion that,
subject to incorporation of a mechanism for dispute resolution and a
time frame, the scheme would be an appropriate manner of
assessment. The fact that certain State Boards may have evolved
different modes of assessment, leading to some variation in the
average results, does not render the admissions criteria of the
University so arbitrary as to require the interference of the writ court
under Article 226 of the Constitution.
11. For the reasons aforesaid, I am of the view that the grievances
raised by the petitioner are incapable of adjudication under Article 226
of the Constitution. The writ petition, alongwith the pending
application, is therefore dismissed.
PRATEEK JALAN, J
OCTOBER 11, 2021/'j'
Signature Not Verified
Digitally Signed By:SHITU
NAGPAL
Signing Date:12.10.2021
