Delhi High Court
Kinjal Goel vs University Of Delhi And Ors. on 20 July, 2022
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20th July, 2022
+ W.P.(C) 8582/2019 & CM APPL. 35466/2019, CM APPL.
23281/2022, CM APPL. 23282/2022.
KINJAL GOEL ..... Petitioner
Through: Mr. Sanjiv Bahl, Mr. Eklavya Bahl
and Ms. Apoorva Bahl, Advocates
with Petitioner (in-Person).
versus
UNIVERSITY OF DELHI AND ORS. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Ms. V.
Bhavani and Ms. Kriti Bhatia,
Advocates for R-1.
Ms. Nidhi Mital and Ms. Seema Dolo,
Advocates for R-2.
Mr. Mrinal Harsh Vardhan, Advocate
for R-3 & 4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J. (Oral):
1. Petitioner who is presently working with Aviva Life Insurance
Company Ltd., is exceedingly distressed because the University of Delhi has
not issued her degree for the under-graduate course of B.A. (Hons.)
Economics, despite her having completed the same in 2018.
2. The brief facts of the case are as follows: Petitioner was granted
admission in B.A. (Hons.) Economics by Respondent No. 2 - Sri Ram
College of Commerce in the Academic Session 2015-18. She contends that
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By:SAPNA SETHI
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though she has gone through the examination process for all the six
semesters of the course, she has not passed one subject in the sixth semester
(Political Economy-II), basis whereof her degree has not been awarded. It
must also be noted that on the basis of her under-graduate studies, the
Petitioner had joined and even completed the MBA course of Symbiosis
International (Deemed) University, but her post-graduate degree cannot be
awarded as her undergraduate degree has not been issued. Though she is
currently in employment, she has not submitted her degree certificates as the
same are being withheld. This has brought the aggrieved Petitioner to the
Court, as denial of the relief prayed for would have a serious repercussion
on her professional career.
3. The Petition, as filed in 2019, focussed on the directions for rectifying
the result of the Petitioner in respect of the paper - Political Economy-II of
VI semester, for which she had appeared in the examination on 17th May,
2018 and failed. However, in view of the stand taken by the University, it
emerges that there is a greater controversy surrounding the denial of degree.
4. Attention of the court is invited to an amendment introduced in 2017
to the University's Ordinance IX by an Executive Council Resolution,
wherein Clause 12(1)(e) of the same was modified. Relying on the said
provision, the University determinedly asserts that the Petitioner has not
qualified for issuance of a degree, as she has not cleared all the papers of the
first year, second year and third year, which is a mandatory requirement for
issuance of a degree. Since the above referred provision is the fulcrum of the
dispute, it would be apposite to reproduce the old as well as the amended
clause:
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Pre-Amendment Clause 12(1)(e):
"(e) If a student has secured an aggregate of minimum 40% marks taking
together all the papers in theory examination (including internal assessment/
project, wherever applicable) and practical exam separately till the end of the
third year, i.e., upto the end of the VIth semester, then she/he shall be awarded
the degree in which the student has been admitted."
Post-Amendment Clause 12(1)(e):
"(e) Eligibility for award of degree:
A student shall be declared eligible for degree provided he/she passed all the
papers of 1st year 2nd year and 3rd year of a course as per clause 12(3) of
Ordinance IX."
5. As can be seen from the above, earlier, for award of a degree, students
had to secure minimum 40% marks taking together an aggregate of all the
papers, in theory examinations (including internal assessment/ project,
wherever applicable) and in practical exams separately, till the end of the
third year, i.e., upto the end of the VI semester. Counsel for the Petitioner
points out that it was thus entirely possible that a student may have failed in
a few papers but still managed to meet the overall 40% threshold, and thus
be awarded a degree, which, he states, was the Petitioner's case as well.
6. This provision underwent a striking change in 2017, and now, a
student can only be declared eligible for a degree after passing all the papers
of all the three years. Clause 12(3) now prescribes for a system of letter
grades and grade points, wherein the grade point for clearing an exam is '4'
which is allocated the letter grade of 'P' (Pass), which is the minimum
requirement to be obtained in each course of all semesters in order to
complete the eligibility criteria.
7. Keeping the afore-noted amendment in view, it must be noted that the
Petitioner joined the course in 2015, when, the pre-amendment rule was
applicable to her. She has an aggregate of more than 40% marks and this is
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not in dispute. However, since she has not cleared one subject of the VI
semester, the University, relying upon the amended provision, is denying her
the degree.
8. Therefore, the short question is - whether, on account of not passing
one subject in the VI semester examinations held in 2018, the Petitioner can
be denied a degree, in view of the amended Clause 12(1)(e).
9. Mr. Mohinder J.S. Rupal, Counsel for the Respondent No. 1, has
argued that the Petitioner had joined the undergraduate course under the
Choice Based Credit System (CBCS) which was introduced on 14th July,
2015. The Petitioner was therefore aware of the scheme of grading, and
further, the 2017 amendment was also within her knowledge as the same
was proposed early on. To flesh out this point, Mr. Rupal places reliance on
Annexure R-2 attached with the University's counter affidavit dated 9th
January, 2020 wherein the agenda item for the proposal to amend the
promotion rules was signed by the members of the Executive Council on
13th / 14th June, 2016.
10. Although Mr. Rupal has also submitted that the Petitioner has not laid
any challenge to the amended provision of Ordinance IX and the grounds
urged are confined to re-evaluation of the result of the exam dated 17th May,
2018, however, in the opinion of the Court, challenge to the provision is not
necessary for the Petitioner to succeed. Her case is not that the provision is
bad in law, but merely that that the impugned rule cannot be made
applicable to her.
11. The objection raised by the University is legally untenable in view of
the rule against retroactivity. The afore-noted amendment was carried out on
28th February, 2017 / 7th March, 2017 which is the date of the Executive
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Council Resolution, and the same cannot be applied to the Petitioner who
joined the course in 2015, when the old provision was applicable. It would
be a grave injustice to a student in case the whole process of evaluation and
award of degree is changed mid-course. The Petitioner had joined the
undergraduate course, aware of the fact that the requirement to obtain a
degree was only to secure an aggregate of minimum of 40% marks
(separately for theory and practical examinations). On that basis, she
continued with her education. The amendment, which has been brought in
2017, would therefore not be applicable to the Petitioner as her rights stood
vested in 2015 when the pre-amendment provision was in force, and would
continue until the completion of her course. Needless to clarify, the same
would not be the position for students who took admission in 2017 onwards.
12. On this issue, the Court would also place reliance upon a decision of
this Court in Vikas Bhaskar v. University of Delhi & Anr. decided on 11th
May, 2018 in W.P.(C) 1944/2018. Although the facts of the said case were
slightly different, the situation therein was somewhat alike, as the Petitioner-
student was aggrieved by modification of the rules contained in the
admission brochure/prospectus, pertaining to a supplementary examination,
which were modified mid-course. Considering this ground, the Court had
relied upon the settled legal position that a rule (and amendment thereto)
cannot operate retrospectively so as to divest a person of his/her vested legal
rights.
13. In the opinion of the Court, the principle of law enunciated in the
afore-noted judgment is in consonance with the view taken in several cases
by this Court as well as the apex Court. Enforcing an amendment
retrospectively would have the effect of taking away substantive rights of
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the Petitioner. The University of Delhi has failed to consider the fact that the
entirety of the Petitioner's education was under a provision which entitled
her to secure a degree on the basis of obtaining the minimum passing marks
of an aggregate of 40% and that formed the basis for her joining the course.
14. Moreover, the submission that since the amended clause was
proposed in 2016, and hence the same would bind the Petitioner, cannot be
countenanced. A proposal may be in the pipeline for a prolonged or a short
time; but it will only have an effect in law once it is formally approved and
notified, which, in the instant case was done only on 28th February, 2017/ 7th
March, 2017.
15. Before parting, it must also be briefly mentioned that Mr. Behl had
also urged another ground, pertaining to the controversy regarding the
examination of the subject - Political Economy-II - that the Petitioner has
not passed. On this aspect Mr. Bahl had pointed out that in response to the
Petitioner's RTI application and the counter affidavit filed by SRCC, it
emerges that the Petitioner had in fact used two supplementary sheets while
writing her exam, however ultimately, the evaluation was done on the basis
of one supplementary sheet, and the other seems to have been lost. Mr.
Rupal controverted the contention and submitted that regardless of the same,
the Petitioner re-appeared for the examination in November/December 2018,
but again did not clear the same. Be that as it may, in the opinion of the
Court, this aspect need not be engaged with, as the Petitioner is entitled to
succeed on the first ground itself.
16. In light of the foregoing, the present petition deserves to be allowed.
17. University is directed to issue a degree on the basis of the marksheet
which is provided at Annexure P-4, within a period of three weeks from
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today.
18. The petition is disposed of.
19. A copy of this Order be given dasti under the signature of the learned
Court Master.
SANJEEV NARULA, J
JULY 20, 2022
as
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