CIVIL WRIT PETITION NO.1036 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.1036 of 2010 DATE OF DECISION: SEPTEMBER 9, 2010 Dwipton Chakma .....Petitioner VERSUS Punjab Engineering College Chandigarh (Deemed University)and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH. PRESENT: Mr. Amit Chopra, Advocate, for the petitioner. Mr. Ashish Rawal, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner belongs to S.C. Category and took admission in the Bachelor of Engineering (in short B.E.) Programme of the respondent-University on 29.8.2008 through Ministry of Human Resources Development Quota (Tripura Board of Joint Entrance Examination). While pursuing the course, the petitioner appeared in the Examination of 1st and 2nd Semester of B.E. Course. The petitioner was intimated through a letter dated 21.8.2009 that he has failed to meet the academic requirements to continue further studies and a decision has been taken to terminate his B.E. Programme. He was further informed that he can file an appeal against the same CIVIL WRIT PETITION NO.1036 of 2010 -2- order within 15 days from the date of issuance of the letter, which would be considered and decided by the Chairman/Senate. On 1.09.2009, the petitioner had filed an appeal. The petitioner pointed out that he had joined the course late and as such, was long behind the on going course. He had also raised some other grievances. The meeting of the Senate was held on 14.9.2009 and the petitioner was informed through a letter dated 22.9.2009 that his appeal was not accepted by the Senate. The petitioner, thus, has filed this writ petition to challenge the order terminating his B.E. Course. The stand of the respondent-University is that the petitioner has fallen short of credit points required as per the Regulation and as such the University was justified in terminating the petitioner's B.E. Programme in terms of the Regulation. The respondent-University would not dispute the plea of the petitioner that he has earned two credit points in the summer term as per the amended Regulation, which would be applicable to him though introduced subsequent to his joining the course. The University, however, is not extending the concession of 5 credit points, he being Scheduled Caste on the ground that Regulation was amended later and would apply prospectively. The petitioner would plead that he being from Scheduled Caste category was entitled the concession of 5 credit points and if that is done, he would qualify for further continuing with the course. There was some dispute between the parties in regard to the credit points given to the petitioner for summer term CIVIL WRIT PETITION NO.1036 of 2010 -3- and also whether he would be entitled to continue with the course after giving 5 credit points on the ground of he being a Scheduled Caste. The counsel for the University, accordingly was directed to ascertain the factual position in this regard. On 1.9.2010, counsel for the University stated that the petitioner was having total 19 credit points and if 5 credit points were given to him being a Scheduled Caste then he would make it to 24 credit points and thus, would become entitled to continue the B.E. Course. In that event, the order terminating the B.E. Course of the petitioner cannot be held justified. The counsel for the University further points out that the amendment regarding the grant of the relaxation of 5 credit points to the reserve category was introduced w.e.f. 14.12.2009 and from its wording, is to apply prospectively. The counsel, accordingly, contends that the University is in no position to extend this concession in the case of the petitioner, whose course was terminated in August, 2009 as the amendment is made on 14.12.2009. The concerned amendment, copy of which has been placed on record, reads as under:- “A relaxation of 5 credits at the end of the first year shall henceforth be available to SC/ST students admitted to PEC University of Technology for the purpose of continuation/termination.” Counsel would stress on the word “henceforth” used to urge that amendment is prospective in nature. This amendment has been introduced on 14.12.2009 and says that 5 credit points at the CIVIL WRIT PETITION NO.1036 of 2010 -4- end of first year shall henceforth be available to Scheduled Caste/Scheduled Tribe students admitted to PEC University of Technology for the continuation or the termination. Thus a deeper analysis of the reason for this change has been introduced may be called for and it would give somewhat different picture. It may be worth considering that word 'henceforth' is used to give this process a prospective operation or is only to introduce the programmes as such. Let us examine the background for which this change has been made. It seems that the main reason for bring this change is the observation made by the Hon'ble Supreme Court in the case of Avinash Singh Bagri and others Vs. Registrar IIT Delhi & another, in Writ Petition (C) No.10 of June 2009, decided on 12.8.2009. Avinash Singh Bagri & others had approached the Supreme Court as are noticed in the opening part of the judgment would show the grievance of SC/ST candidates, who were granted admission in IIT- Delhi, but were denied the right to pursue their studies on the ground of poor performance. Identical is the position in this case and so the ratio of the judgment would apply to the present case on all four corners. Plea raised in Avinash Singh Bagri's case (supra) is that despite making a provision for reservation in higher education like Medical & Engineering streams, no coaching or any other facilities are extended to SC/ST/OBC candidates to enable them to compete with other general category students and as a result majority of such students drop out from these courses in first or second year. Plea accordingly is that the very purpose of reservation for these down CIVIL WRIT PETITION NO.1036 of 2010 -5- trodden, which is a constitutional goal, is frustrated. While dealing with the issue, reference is made to a procedure adopted by IIT Kharagpur, Bombay, Chennai, Gawahti & Roorkee, where even when the students fail to achieve the required credit then he/she is not expelled but is put in programme known as “Slow track programme”. Students of such institutes are allowed to take up summer courses examination for making up short fall. Having made reference to the factual position, the Hon'ble Supreme Court went on to hold that SC and ST students are separate class and creamy layer principle is not applicable to them. Reference is made to Article 46 of the Directive Principle of the Constitution, which enjoins upon the State to promote with special care, the educational and economic interests of the weaker sections of the people and protect them from social injustice and from all forms of exploitation. It is then observed that these socially and economically backward categories are to be taken care of at every stage even in the specialized institutions. As is observed that the institutions must make all endeavour by providing additional coaching to bring them up at par with General Category students. Reference is also made to the case of Ashok Kumar Thakur Vs. Union of India, 2008(6) SCC 1 to reiterate the above principles. That being the purpose of introducing this change, it is to be seen if this benefit can be denied to those whose cases stood decided prior to introducing this beneficial provision? Would it not lead to frustrating the very purpose of change if the benefit is not extended to some of the students whose cases happened to be CIVIL WRIT PETITION NO.1036 of 2010 -6- decided a few days or months prior to the date of change but in the same academic session. The purpose behind the change is to help SC and ST category students. The petitioner is being eased out of the course without providing any help to him. It would make the provision of reservation look redundant. There is special reservation made for SC/ST category as per the Constitution for their admission in such like courses to advance the cause of social justice. The very purpose of providing reservation will be lost, in case, they are to be thrown out of the courses in this manner by holding that they have not been able to achieve the standards required for continuing in the course. The petitioner was extended the benefit of summer course and thus, he got two credit points. A new right in the form of concession for special category of students is now made. It is meant to apply to all SC & ST students. This was with an aim to extend this benefit and is not to take away any right. There was no intention to exclude any SC/ST student from its operation. Reasonably, the benefit must be extended to an academic session. There is no reason to restrict the benefit from a prospective date. The petitioner being a Scheduled caste, would equally deserve the benefit of this concession from all corners. The purpose behind this change being relatable to the observation made by the Hon'ble Supreme Court which were made, in August 2009. It would mean that the interest of the students like the petitioner at that stage, who wanted to continue with the study, can not be completely lost sight of. The petitioner could have independently made approach like Avinash Singh Bargi CIVIL WRIT PETITION NO.1036 of 2010 -7- and ask for concession by pleading that otherwise the purpose of reservation would be lost. There is no justification to allow the benefit of the decision prospectively. As per Maxwell, upon the presumption that the legislature does not intent what is unjust rests the learning against giving certain statutes a retrospective operation. No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation. Thus, generally retrospective operation is not given to a statute so as to impair existing right or obligation. If the language is plainly retrospective it must be so interpreted. At the same time, it is laid down that regard must be paid to the dominant intention. The presumption against retrospective operation is strong in cases in which statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transaction or impair contracts, or impose new duty or attach new disability in respect of past transactions or considerations already passed. Where vested rights are affected, prima facie, it is not a question of procedure. One must have to look at the general scope and purview of the statue and at the remedy sought to be applied, and consider what was the former state of law and what is the legislation contemplated. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as a whole, as in this case, may relate to a time antecedent to their commencement (emphasis supplied). The CIVIL WRIT PETITION NO.1036 of 2010 -8- presumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. True it is that it is not an invariable rule that a statute cannot be retrospective unless so expressed in the very terms of the section which had to be construed. The question is whether on a proper construction the legislature may be said to have so expressed its intention. It was observed that it is not an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed, and that the question in each case was whether the legislature had sufficiently expressed that intention. In fact, one must look to the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former state of the law and what it was that the legislature contemplated. When law is altered during pendency of an action, the rights of the parties are decided according to Law as it existed when the action was begun, unless the new statue shows a clear intention to very such rights. Such intention may be by an implication. It is an administrative decision of an authority taken for benefit of some class of students, who are down trodden. There is no intention appearing from the wording that the benefit is to apply prospectively. 'Henceforth' is being used to make available the benefit and can be read to say that it is used to specify the time of its introduction and is not to make the provision prospective. Wording read as whole clearly show that it is to apply to students at end of year meaning that it is to apply to an academic session. Purpose is to CIVIL WRIT PETITION NO.1036 of 2010 -9- see that reservation made for SC/ST is not rendered redundant and it would to an extent be rendered redundant, if it is to operate in a manner as is being pleaded. There would be no harm to anyone if the benefit of this change is extended to the petitioner whose case, are pending before the Court. It would be fair to apply this to those students, who were studying in the academic year when the decision is taken. The provision is not prospective in any manner can't be read so. The writ petition is, accordingly, allowed. The directions are hereby issued to the University to consider the case of the petitioner and grant him 5 additional credit points and allow the consequence to follow accordingly. September 9, 2010 ( RANJIT SINGH ) monika I JUDGE