WP(C) 8380 of 2009 Page 1 of 37 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C.) No.8380/2009 % Date of Decision: 20.07.2009 Vipin Sharma …. Petitioner Through Mr.Anil Sapra and Mr.S.Uday Kumar Sagar, Advocates. Versus Guru Gobind Singh Indraprastha University & Anr. …. Respondents Through Mr.Sanjiv Goel, Advocate for the respondent No.1. Mr.Vinod Wadhwa, Advocate for the respondent No.2. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ANIL KUMAR, J. * 1. The petitioner is a final year student of the B.A.LL.B (Hons.) course at the University School of Law and Legal Studies of the Guru Gobind Singh Indraprastha University. The petitioner had not taken the Indirect Taxes paper of his 9th semester. As per the Rules and Regulations governing the conduct of examinations of the respondent WP(C) 8380 of 2009 Page 2 of 37 University the petitioner is eligible to take the `Indirect Taxes' paper only along with the examinations to be conducted for odd semester papers in December, 2009. In the present writ petition the petitioner has sought a direction to the Respondent University to conduct a special supplementary examination of the 9th semester paper of `Indirect Taxes' by exercising the discretionary power of the Vice Chancellor or in the alternative a direction to the Respondent University to amend/alter/modify Rule 11(1)(b) of Ordinance-11 of the Respondent University which stipulates the holding of examination only once a year for a subject of the particular semester. 2. The petitioner has averred that while he was on his way to take the third exam of the ninth semester i.e. the optional examination of Indirect Taxes on 10th December, 2008 he allegedly suffered from severe abdomen and unspecified chest pain, which according to the petitioner, literally paralyzed him to travel any further and he had to be taken to the Ram Manohar Lohia Hospital at around 1 PM and he was discharged on the same day. As a result the petitioner was unable to take the said examination. It has been averred that the father of the petitioner, on the advice of the respondent University, made a representation dated 29th December, 2008 to the Vice Chancellor of the respondent University explaining the facts and circumstances which prevented the Petitioner from appearing in the paper of `Indirect Taxes' and requesting him to allow the petitioner to appear in paper of WP(C) 8380 of 2009 Page 3 of 37 `Indirect Taxes' at anytime on or before the Xth Semester so that the petitioner could pursue higher studies in any of the colleges from which he had received admission offers. 3. The petitioner has contended that though the respondent University has taken no action on the representation dated 29th December, 2008 he was given to understand by the respondent University that the respondent University as per Ordinance 11, Rule 11(b)(i) holds examination only once a year for a subject of the particular semester i.e. in case a student fails or fails to appear in the examination of one semester, then the only option left with him is to take the examination whenever the examinations of that semester are conducted. The said rule is stated to be applicable to all Law students irrespective of their year of study. The petitioner has contended that there is little rationale behind holding the exam after a year and that there is a certain lack of nexus with the purpose it seeks to fulfill. The petitioner has contended that the delay of one year in re-appearing for the supplementary examination would not only affect his obtainment of LL.B degree but would also harm his future career prospects for no fault of his, particularly in the light of the fact that the petitioner has been offered admission at some of the prestigious higher learning institutions in United Kingdom. The petitioner has contended that the above said rule of the Respondent University relating to holding of the repeat/supplementary examination only after one year is completely WP(C) 8380 of 2009 Page 4 of 37 unconstitutional being unfair, discriminatory, arbitrary, oppressive, unduly harsh and in violation of principles of natural justice and Article 14 and 16 of the Constitution. It is also contended that the said rule violates the petitioner’s Fundamental Right to Education guaranteed under Article 21 of the Constitution as the rule delays the process of completion of education by one year. 4. The petitioner has further contended that in almost all other Universities there is a provision for repeat/supplementary examination immediately after the regular semester examinations, especially for final year students with the object that a valuable year of a student is saved. To substantiate his contention the petitioner has produced the rules of University of Delhi (Academic Bulletin 2008, Law Department, rule No.15), National Law School of Indian University, Bangalore (Academic and Examination Regulations, Rule V), National Law School University, Delhi (Examination Rules; End Semester/Repeat and Improvement Examination) and Jamia Milia Islamia University (Ordinance Academic, Part I, Ordinance No.15, The University Examinations, Bachelor of Laws, Section 6(b)(ii)). The petitioner has also contended that all the Universities in India including the Respondent University comply with the rules and regulations of UGC as well as that of other regulatory bodies such as Bar Council of India, AICTE, Medical Council of India, Dental Council of India etc. who have set out standard for promotion and regulation for higher education in their respective areas and that WP(C) 8380 of 2009 Page 5 of 37 nowhere do such rules prescribe that repeat/supplementary exam could be held only after an year. The petitioner has further contended that the respondent University itself provides for repeat/supplementary examination immediately after the regular semester examination of other professional courses including its MBBS course and therefore, the Rules of the respondent University for not holding repeat/supplementary examination immediately after the regular semester examination for LL.B course is unfair, unreasonable, arbitrary, discriminatory and a gross abuse of process. 5. The petitioner has averred that the respondent University itself has made exceptions and has allowed many students in the past including various foreign nationals from Iran to appear in the repeat/supplementary examination in the immediate next semester. The petitioner has also produced the mark sheet of one Karan Gulati, a student of the LL.B 2004 batch who had missed seven of his law papers but was allowed to write all the seven papers that he had missed in the very next semester. In the circumstances it is contended that not allowing the petitioner to appear for Indirect Taxes examination in the very next semester i.e the 10th semester is highly discriminatory and is in violation of the fundamental rights of the petitioner under Article 14 and Article 16 of the Constitution of India. The petitioner has also filed an additional affidavit dated 26th June, 2009 in which he has averred that in response to an RTI application dated 21st April, 2005 filed by WP(C) 8380 of 2009 Page 6 of 37 him seeking information on how many students have been allowed by the respondent University to take supplementary/repeat examination in the immediate/next semester, as against the present rule of holding exams in alternate semester, the respondent University has clearly admitted to it conducting supplementary/repeat examinations for students upon their request. 6. The petitioner has contended that he has been declared successful in all the subjects and papers that he has taken and he is a student of the last semester and therefore, if he is not permitted to appear in the Indirect Taxes paper of the 9th Semester his career would be ruined as he would have to wait for one year to appear in the said paper which would be held in the month of December 2009. 7. The respondent University has contested the petition contending inter alia that the writ petition suffers from delay and latches. It is contended that though the petitioner had failed to appear in the examination conducted on 19th December, 2008 and was aware of the Rules and Regulations contained in Ordinance-11 of the University, the present petition was filed only on 22nd April, 2009. It is also contended that the petitioner being well aware of the Rules and Regulations of the respondent University relating to examinations participated in the admission process and pursued his course up to 10th semester and WP(C) 8380 of 2009 Page 7 of 37 therefore, he is now stopped from raising any objection against the Rules of the respondent University at this stage. 8. The respondent University has averred that the law courses conducted by them follow the semester system of studies and the examinations are normally held in the months of May/June and November/December. It is averred that the conduct of examinations is governed by Ordinance-11 issued by the University and that Clause 11(1)(b) of the said Ordinance stipulates that a student who fails in a subject shall be allowed to re-appear in a semester end examination of the course in a subsequent semester(s) when the course is offered. It is therefore, averred that the petitioner would be eligible to take the examination of Indirect Taxes of the 9th semester, in which he had failed to appear, only in the examination to be conducted in December 2009. It is also averred that the petitioner has been promoted to the 10th semester, which semester would come to an end only in May/June 2009 and therefore, if the petitioner takes his Indirect Taxes paper in December 2009 he would be missing six months and not 1 year as contended by the petitioner. 9. The respondent University has also averred that the representations received from the petitioner as well as from other students were placed before a 4 member committee constituted by the Vice Chancellor comprising of Professor Yogesh Singh, Controller of WP(C) 8380 of 2009 Page 8 of 37 Examination; Professor Anup Singh Beniwal, Dean, University School of Humanities & Social Studies & University School of Education; Professor Suman Gupta, Dean, University, School of Law & Legal Studies and Professor Avinash Sharma, Former Dean, University School of Basic & Applied Science. The committee in its meeting dated 17th April, 2009, after considering the criteria for candidates for final year who could not appear in any examinations of odd semester due to unavoidable circumstances, had decided that the request of the students cannot be granted. The minutes of the meeting dated 17th April, 2009 has been filed by the respondent University. The decision dated 17th April, 2009 is as under:- “ The committee discussed this important issue in depth and also considered the consequences of any decision which may help few students but compromise with the quality of education system. The committee recommended that such cases should not be considered in the academic interest of the University.” 10. The respondent has also averred that in view of the large number of students of about 90 programmes, it is unable to conduct examination as per the request of the petitioner. It is further averred that the request of the petitioner is not feasible and if it is acceded to the sanctity of the whole examination system will evaporate and it will disrupt the entire system. WP(C) 8380 of 2009 Page 9 of 37 11. The petitioner also contended that under Clause-16 of Ordinance- 11 of the respondent University, the Vice Chancellor has the authority to decide as to whether supplementary examinations ought to be conducted for students who have failed to appear in one or more papers in the 9th semester especially those who do not appear for some reasons as the cases of such students is not covered under clause 11 (b) (i). It was also noted that a similar provision also existed in Section 10 of the Guru Govind Singh Indraprastha University Act. This Court had also directed the Vice Chancellor to consider the case of the petitioner sympathetically and to reach a decision expeditiously. The relevant portion of the order dated 25th May, 2009 is extracted below – “Counsel for the petitioner has drawn my attention to Clause-16 of the Ordinance, which gives authority to the Vice Chancellor to take a decision. It is stated by the counsel that a similar provision also exists in Section 10 of the Guru Gobind Singh Indraprastha University Act. Vice Chancellor may re-examine the matter in the light of the said provisions and pass an appropriate order. Holding of supplementary examination for students, who have failed to appear in one or more paper in the 9th semester may cause some inconvenience to the university but the inconvenience and difficulty faced by the students, who will loose one year cannot be ignored and requires sympathetic consideration. Learned Vice Chancellor is required to take appropriate decision expeditiously preferably within a period of four weeks.” WP(C) 8380 of 2009 Page 10 of 37 12. Pursuant to the above said order, the Vice Chancellor reconsidered the case of the petitioner and on 24th June, 2009 passed an order stipulating that it would not be possible to accede to the request of the petitioner to conduct special supplementary examination of the `Indirect Taxes' paper for him. The said order has been brought on record through an additional affidavit dated 29th June, 2009. In his reply affidavit the petitioner has assailed the order of the Vice Chancellor on the grounds inter alia that the Vice Chancellor had reconsidered the case of the petitioner with a closed mind and he had proceeded on the basis that he could not allow holding of supplementary examination, as the same is not covered under his discretionary power and in order to allow supplementary examination the University Ordinance had to be amended. The petitioner has further averred that despite this Court having directed the Vice Chancellor to consider the case of the petitioner sympathetically, the Vice Chancellor has turned a blind eye to the difficulties faced by him. It is contended that the decision of the Vice Chancellor ought to have been guided from the interest of the petitioner and to his career and the difficulty faced by him, which was not at all considered by the Vice Chancellor. 13. The petitioner has also contended that even though this Court vide order dated 25th May, 2009 had only directed the Vice Chancellor to consider the petitioner’s case, the Vice Chancellor has gone on to consider the case for all the students of the Respondent University. It is WP(C) 8380 of 2009 Page 11 of 37 contended that the case of the petitioner should have been treated separately and independently. The petitioner has further averred that that the Vice Chancellor has not considered the case of the petitioner at all as there is no mention at all in the order about the merits of the petitioner’s case. The petitioner has also alleged that the Vice Chancellor is adopting double standards as on one hand he has refused to conduct supplementary examination for the petitioner urging grounds of academic excellence and habit of discipline, while on the other hand, he vide order dated 16th January, 2009 had allowed awarding of grace marks, despite there being no provision for the same in the University Ordinance, thereby permitting to give degrees to those students who could not qualify the pass marks and have in fact failed in one or more papers. 14. Mr.Anil Sapra, learned counsel for the petitioner has also very vociferously contended that Clause 11 of Ordinance 11 regarding conduct and evaluation of examination for programmes leading to all bachelors/masters degrees and undergraduate/post graduates diplomas following semester system is not applicable in the case of the petitioner as Clause 11(b)(i) talks only about a student, who obtains less than 50% marks, being allowed to reappear in a semester end examination of the course in subsequent semesters. According to the him the petitioner was prevented from appearing in the examination of indirect taxes (Code No.507J) on account of his medical condition and WP(C) 8380 of 2009 Page 12 of 37 he had not failed and, therefore, the case of the petitioner is not covered under the sub Clause (b)(i) of clause 11. According to the learned counsel since the matter pertaining to the petitioner is not covered by the ordinance, the Vice Chancellor had the jurisdiction to take a decision and the decision of the Vice Chancellor could be final under Clause 16 of Ordinance 11. It has also been contended that the decision of the Vice Chancellor ought to be independent and not necessarily in consonance with the opinion/advice of the committee consisting of some or all the deans of the University. 15. The learned counsel has relied on an order of a Single Judge dated 17th October, 2008 titled S.M.Hamoodur Rehman Faridi v. Jamia Millia Islamia University & Anr; Khudiram Das v. The State of West Bengal & Ors., (1975) 2 SCC 81; K.Shekar v. V.Indiramma & Ors., (2002) 3 SCC 586; Union of India v. Association for Democratic Reforms and Anr., (2002) 5 SCC 294 and Principal, King George’s Medical College, Lucknow v. Dr.Vishan Kumar Agarwal and Anr., (1984) 1 SCC 416 in support of his pleas and contentions. 16. I have heard the learned counsel for the petitioner and the respondent University and have also perused the petition, reply, additional affidavits and the reply affidavits. Admittedly the conduct of examinations by the Respondent University is governed by Ordinace-11 of the Respondent University. The clauses relevant for the issue at hand WP(C) 8380 of 2009 Page 13 of 37 are Clauses 11 and 16 of the said ordinance which are reproduced below: 11. CRITERIA FOR PASSING COURSES, MARKS AND DIVISIONS (a) (i) Obtaining a minimum of 50% marks in aggregate in each course including the semester-end examination and the teacher’s continuous evaluation shall be essential for passing the course and earning its assigned credits. A candidate, who secures less than 50% of marks in a course, shall be deemed to have failed in that course. (ii) A student may apply, within two weeks from the date of the declaration of the result, for re-checking of the examination script(s) of a specific course(s) on the payment of prescribed fees. Rechecking shall mean verifying whether all the questions and their parts have been duly marked as per the question paper, and the totalling of marks. In the event of a discrepancy being found, the same shall be rectified through appropriate changes in both the result as well as marks-sheet of the concerned semester-end examination. (b) (i) A student obtaining less than 50% of maximum marks (including semester end examination and Teacher’s Continuous Evaluation) assigned to a course and failing in the course shall be allowed to re-appear in a semester end examination of the course in a subsequent semester(s) when the course is offered, subject to maximum permissible period of (n+4) semesters as mentioned in clause 4(c). The re-appearing students who secured less than 50% marks in the teacher’s continuous evaluation have the option to repeat and improve the two class tests performance with the next batch of students, in such cases the improved internal marks, if received from the school/institution concerned at least 7 days before the commencement of semester end-term examination shall be considered, otherwise the previous internal marks already WP(C) 8380 of 2009 Page 14 of 37 obtained by the student shall be taken into account without any modification. No extra fee shall be charged from the students in this regard. (ii) A student who has to reappear in a semester end-term examination in terms of clause (b)(i) above shall be examined as per the syllabus which will be inoperation during the subsequent semester(s). However, in case the student(s) claimed that there are major modifications in the syllabus which is in operation as compared to the syllabus which was applicable at the time of his/her joining the concerned programme and the Dean of the School/ Chairman/Co-ordinator of the Programme Committee so certifies, the examination may be held in accordance with the old syllabus, provided such request shall be received to Controller of Examination at least 3 weeks prior to commencement of semester end-term examination. Students who are eligible to reappear in an examination shall have to apply to the Controller of Examinations through the School / Institution concerned to be allowed to reappear in an examination and pay the fees prescribed by the University. (iii) If a student has poor performance in a number of courses in a particular semester, he may, at his option, take an academic break for one year, and reregister for either both the semesters of that academic year in the next academic year. Such a student may have the option of repeating any or all of the courses in the semester(s) and retain the credits already earned by him in other course(s). For calculating the CPI, and determining the passing/failure in a course, and eligibility for award of a degree, the marks obtained in the repeat course(s) will be taken into consideration. (c) A candidate who has earned the minimum number of credits prescribed in the concerned Scheme of Teaching & Examination and Syllabi, shall be declared to have passed WP(C) 8380 of 2009 Page 15 of 37 the programme, and shall be eligible for the award of the relevant degree or diploma. The Scheme of Teaching & Examination and Syllabi shall clearly specify the minimum credits to be earned to qualify for a degree or diploma. The credits included in the Scheme of Teaching & Examination and Syllabi of a programme shall generally be 5-10% more than such minimum specified credits. Further, the successful candidates will be placed in Divisions as below: 1. Second Division: A candidate obtaining a Cumulative Performance Index (CPI) at the end of the programme of 50 and above but below 60, shall be placed in Second Division. 2. First Division: A candidate obtaining a CPI at the end of the programme of and above but below 75 shall be placed in the First Division 3. First Division with Distinction: A candidate obtaining a CPI at the end of the programme of 75 and above shall be placed in First Division with Distinction, provided, the candidate has passed all the courses for which he has earned credits, in the first attempt. Further, a candidate obtaining a CPI of 90 and above shall be deemed to have passed the programme with exemplary performance provided he/she has passed all the courses for which he has earned the credits, in the first attempt. Such candidates will be awarded a special University Certificate to this effect. 4. For the above, Cumulative Performance Index (CPI) shall be calculated as in Clause 14 and shall be based only on marks obtained in courses for which credits have been earned. ……………………………………… ……………………………………… WP(C) 8380 of 2009 Page 16 of 37 16. Notwithstanding anything stated in this Ordinance, for any unforeseen issues arising, and not covered by this Ordinance, or in the event of differences of interpretation, the Vice-Chancellor may take a decision, after obtaining if necessary the opinion/advice of a Committee consisting of any or all the Deans of the Schools. The decision of the Vice-Chancellor shall be final.” 17. Clause 11(b)(1) provides for conduct of supplementary examinations for students who have failed to obtain 50% marks. The petitioner has assailed the said clause as being arbitrary. It is settled law that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India should ordinarily be reluctant to interfere with the matters relating to the internal working of educational institutions since the decisions taken by the academic bodies are in the nature of policy decisions. The decisions can be interfered with only in case they are unreasonable or arbitrary. It should also be kept in mind that the regulations are made on the basis of experience of actual day to day working