W.P.(C) No. 7610/2011 Page 1 of 26 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 2nd December, 2011 + W.P.(C) No. 7610/2011 % SIDDHARTH KAUL & ORS. ….…Petitioners Through: Ms. Geeta Luthra, Sr. Adv. with Mr. Sanjeev Sahay and Mr. Harish Malik, Adv. Versus GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY ..... Respondent Through: Mr. Mukul Talwar, Adv. CORAM :- HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW JUDGMENT RAJIV SAHAI ENDLAW, J. 1. The 203 petitioners are the students of colleges affiliated to the respondent University. They have filed this petition claiming the following reliefs:- a) Pass a writ of certiorari or writ, order or directions like in nature declaring the part of the Prospectus which provide that 90% of the credit of Ordinance 11(B)(iii) is mandatory for promotion from one year to the next year is illegal, arbitrary and ultra vires and hence liable to be set aside. W.P.(C) No. 7610/2011 Page 2 of 26 b) Pass a writ of certiorari or writ, order or directions like in nature declaring that the Clause 11 OF INDRAPRASTHA VISHWA VIDYALYA ACT and other relevant clauses which provides for pass percentage 50 marks per subject is illegal, arbitrary and ultra vires, hence is liable to be set aside; c) Pass a writ of certiorari or writ, order or directions like in nature declaring that the Clause 11 OF INDRAPRASTHA VISHWA VIDYALYA ACT and other relevant clauses which provides for re-totaling of the answer sheet is illegal, arbitrary and ultra vires and hence liable to be set aside; d) Pass a writ of mandamus directing the respondents to hold the counseling, declaring the result of the semesters and or re-valuation is done within the specified/reasonable time so that no part of academic year is lost; e) Pass a writ of Mandamus or writ, order or directions like in nature declaring that the pass percentage should be 50 marks per subject; f) Pass a writ of mandamus directing the respondents to hold re- valuation of the examination papers; g) Pass a writ of mandamus directing the respondents to have Credit System based on uniform grading i.e. equal number of grades in each semester. h) Pass such other and further order/orders as this Hon’ble Court may deem fit and proper in the interest of justice.” 2. Pleadings have been completed and the counsels have been heard. W.P.(C) No. 7610/2011 Page 3 of 26 3. The various issues raised may be categorized as under:- i. Right to re-evaluation / re-assessment of answer sheets as distinct from re-totaling only permitted by the University; ii. Discrimination between the students of the colleges affiliated to the respondent University and the students of the colleges of the respondent University itself, in the matter of proportion of the internal and the external assessment marks; while for the students of the affiliate colleges the same is 25:75; that in the University’s own colleges is 40:60; iii. Imposition of the pass marks as 50%. It is contended that the pass marks in the other Universities are 40% only; iv. The Rules of promotion from one year to the other. It is contended that the rule of requiring the students to have 50% of the credits for the current year and overall 90% credits of the previous years, to get promoted to the next academic year is bad; and, W.P.(C) No. 7610/2011 Page 4 of 26 v. Delay on the part of the University in declaring the result and result of re-evaluation. RE-EVALUATION 4. On the aspect of re-evaluation, it is pleaded that the same is critical if the student has failed and/or is on the borderline; that several other institutions are providing for re-evaluation / re-assessment of answer sheets; no prejudice will be caused to the respondents in permitting re-evaluation / re-assessment whereas if re-evaluation / re-assessment is not provided, the students suffer extreme hardship and great prejudice. The respondent University in its counter affidavit has pleaded that the Supreme Court has held that no direction to the University or any other academic body to re- evaluate the evaluated answer sheets can be given unless the ordinances and rules of the University specifically provide therefor. 5. The senior counsel for the petitioners during the hearing while not controverting that a right of re-evaluation has been denied by the courts till now has contended that time is ripe for change of the said view. It is contended that re-evaluation would be in consonance with the principles of W.P.(C) No. 7610/2011 Page 5 of 26 transparency now in vogue and as acknowledged by the introduction of the Right to Information Act, 2005. It is further contended that the factors of sheer impossibility of the exercise of re-evaluation which weighed with the Supreme Court in denying re-evaluation in the CBSE examination in which lacs of students appear and of likelihood of delays in further admission if such exercise were to be undertaken, do not exist in the case of the respondent University which has only 28000 students. 6. We are unable to agree. The Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupeshkumar Sheth AIR 1984 SC 1543 held that it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any Policy different from what has been laid down by the legislature or its delegatee and to strike down as unreasonable a Bye-Law merely on the ground that the Policy enunciated therein does not meet with the approval of the Court is not permissible. The argument of fair play requiring such re-evaluation was also rejected and it was held that if it is found that every possible precaution has been taken and W.P.(C) No. 7610/2011 Page 6 of 26 all necessary safeguards provided to ensure that the evaluation is done by the examiners applying uniform standards with checks and cross-checks at different stages and that measures for detection of malpractice, etc. have also been effectively adopted, it will not be correct on the part of the Courts to strike down the provision prohibiting re-evaluation on the ground that it violates the rules of fair play. Similarly, the argument of public interest was also not accepted. 7. The Division Bench of this Court in Parents Forum for Meaningful Education Vs. CBSE AIR 1994 Delhi 44 also laid down that the setting of the question papers in the examination and the evaluation of the answers is the prerogative of the examining body and it is not advisable for Court to interfere therein. The Supreme Court in SLP preferred by the CBSE against the said judgment, vide order dated 5th November, 1993 set aside the direction of the Division Bench of this Court to the CBSE to introduce the system of re-evaluation. The Supreme Court prior thereto in Jawaharlal Nehru University v. B.S. Narwal (1980) 4 SCC 480 had already opined that authorities of the University are best qualified and the Courts, perhaps least W.P.(C) No. 7610/2011 Page 7 of 26 qualified to judge the academic performance of a student and there can be no question of giving an opportunity to be heard when the student fails in the test. 8. Another Division Bench of this Court in Parents Forum for Meaningful Education v. CBSE being W.P.(C) No.1824/1997, vide judgment dated 19th December, 2001 held that this Court would not interfere with the Policy decision far less in relation to education and which has been evolved by experts. The question of re-evaluation was held to be not res integra. 9. The Supreme Court in Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission AIR 2004 SC 4116 also held that in the absence of any provisions in the rules for re-evaluation of answer books, no candidate had a right thereto. 10. The counsel for the respondent University has also invited our attention to Bhushan Uttam Khare v. Dean, BJ Medical College (1992) 2 SCC 220 and to University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491 to contend that Court should not interfere in academic matters. He has W.P.(C) No. 7610/2011 Page 8 of 26 also referred to Himachal Pradesh Public Service Commission v. Mukesh Thakur (2010) 6 SCC 759 and to Secretary, W.B. Council of Higher Secondary Education v. Ayan Das (2007) 8 SCC 242 laying down that it is not permissible for the High Court to examine the question paper and answer sheets itself and reiterating the earlier view. 11. We find that another Division Bench of this Court recently in Rohit Kumar v. Delhi Subordinate Services Selection Board MANU/DE/2075/2010 reiterated that in the absence of rules permitting the same, re-evaluation cannot be directed unless a special case therefor is made out. 12. The aforesaid conspectus of law would show that in the absence of any provision therefor, right of re-evaluation has been denied across the board irrespective of the number of examinees and the denial has not been restricted to cases of CBSE or where there are lacs of examinees. 13. The senior counsel for the petitioners of course contends that the Apex Court in Paritosh Bhupeshkumar Sheth (supra) had satisfied itself of the checks and balances in the examination scheme and for this reason had W.P.(C) No. 7610/2011 Page 9 of 26 denied the right of re-evaluation. She has contended that the respondent University in its counter affidavit has not pleaded anything in this regard. However we do not agree. It was for the petitioners to plead and establish a case for re-evaluation to have arisen in the case of the respondent University. There are no pleadings in this regard. We cannot presume that the respondent University has not ensured fair, objective and uniform evaluation of the answer sheets. 14. As far as the argument of transparency is concerned, undoubtedly the Apex Court in CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497 has in allowing inspection of answer sheet to the examinees struck a chord different from that prevalent earlier. However para 17 of the same judgment notices the provisions barring re-evaluation of answer books and restricting the remedy to re-totaling and holds the same to be valid and binding on the examinees. The Supreme Court did not hold that allowing the examinees to inspect the evaluated answer sheets will result in allowing re-evaluation also. No right to seek re-evaluation was found to be flowing from RTI Act also. Rather the same Bench in the Secretary, All India Pre Medical/Pre Dental W.P.(C) No. 7610/2011 Page 10 of 26 Examination v Khushboo Shrivastava (2011) 9 SCALE 63 pronounced contemporaneously with Aditya Bandopadhyay (supra), set aside the orders of the High Court substituting their views for that of the examiner and held the same to be impermissible. 15. It is not as if in the absence of a provision for re-evaluation a candidate is vulnerable or at the mercy of an examiner. Wherever a case calling for re-evaluation is established, the Courts have allowed the same. Reference may be made to Sahiti v. Chancellor, Dr. N.T.R. University of Health Sciences (2009) 1 SCC 599 where the right of the Examining Body to for sufficient reasons order re-evaluation was upheld. The Supreme Court in Sanjay Singh v. U.P. Public Service Commission, Allahabad (2007) 3 SCC 720 has also emphasized the necessity of having uniformity and consistency of evaluation of answer scripts and noticing that evaluation by several examiners may result in “examiner variability” or “hawk-dove effect”, prescribed the procedure to be followed to ensure uniformity inter se the examiners so that the effect of “examiner subjectivity” or “examiner variability” is minimized. However notwithstanding the same, a general W.P.(C) No. 7610/2011 Page 11 of 26 right of re-evaluation without even establishing a case therefor was not allowed nor has been allowed in any other judgment. Mention may also be made of the President, Board of Secondary Education v. D. Suvankar (2007) 1 SCC 603 where also the Supreme Court after observing that it is the bounden duty of the Board to ensure the examiners who evaluate the answer papers are equipped for the job and the possibility of wide variation in evaluation by different examiners is reduced, still held that the scope for judicial interference therein is very limited unless compelling reasons are shown. 16. Not only is the question thus no longer res integra but the petitioners in the present case have not even made out any case for striking down the provision of the respondent University prohibiting re-evaluation. We have also wondered as to where such re-evaluation scheme even if permitted would lead to. Evaluation of an essay type answer necessarily, to a certain extent, has to be subjective. Re-evaluation in the present case is founded on the expectation of the petitioners, who have failed to secure prescribed credits for promotion to the next academic year, of better marks. The W.P.(C) No. 7610/2011 Page 12 of 26 Supreme Court in Union of India v. Mohan Lal Capoor AIR 1974 SC 87 held that “it is not expedient to extend the horizon of natural justice in the audi alteram partem rule to the twilight zone of mere expectations, however great they might be”. The petitioners have neither alleged nor shown any irregularity in the conduct of the examination. There is no basis for the claim for re-evaluation. The said claim is accordingly dismissed. DISCRIMINATION 17. We now proceed to take up the next challenge of discrimination. The respondent University in its counter affidavit has denied any such discrimination. It is the case of the respondent University that the proportion of the internal and external assessment marks in affiliate as well as University colleges is the same i.e. 25:75. The petitioners in support of their claim have been able to place before this court instance only of the course conferring a Dual Degree of B.Tech/M.Tech. The proportion between the internal and the external assessment marks in the said course is of 40:60. It is the contention of the counsel for the respondent University that since as per the rules/ordinances of the respondent University the proportion of internal W.P.(C) No. 7610/2011 Page 13 of 26 to external assessment for post-graduation courses is of 40:60, in the said dual course the same proportion is provided. The counsel for the petitioners rejoins by contending that a student of the said dual course has the option to leave after completing the B.Tech and is not necessarily required to do M.Tech; on the basis of the records of the previous year, it is demonstrated that most of the students admitted to the said course left after B.Tech and do not proceed to do M.Tech. 18. We may at the outset state that the petitioners, in the petition failed to plead the distinction between the course, reliance on documents whereof was placed to contend discrimination. We cannot believe that the petitioners were not aware thereof. Such attempts have but to be deprecated. Had the petitioners carved out the said distinction, the respondent University would have had occasion to respond as to why notwithstanding the option to the students to leave after the B.Tech, the proportion as of post-graduation courses had been applied to the B.Tech part of the said course also. However it stands established that the course of the respondent University college on the basis of which discrimination is alleged is different. The counsel for the W.P.(C) No. 7610/2011 Page 14 of 26 petitioners has not been able to show that any of the affiliate colleges also has such a dual degree course or that the proportion prescribed therein is different. She has also not been able to controvert that the proportion in other courses in University colleges is the same as in the affiliate colleges. We are sure the expert academicians in the University have their reasons for providing a different proportion in the dual degree course. The Supreme Court in All India Council For Technical Education v. Surinder Kumar Dhawan (2009) 11 SCC 726 has held that the Courts are not equipped to judge whether one course is identical to another and if start venturing into such exercise, it will lead to chaos in education and deterioration in standards of education. No such case of discrimination also is made out. 19. We are also concerned with the rationale behind the claim of the petitioners for internal assessment to the extent of 40% instead of 25% as provided. Ordinarily, a student/examinee ought not to be concerned with who the examiner is, whether one to whom his face is familiar or the other to whom he is faceless. The claim for higher proportion of internal assessment is predicated on a premise that a student, for the same performance is likely W.P.(C) No. 7610/2011 Page 15 of 26 to secure better marks if assessed internally than in external assessment. The criteria for assessment is expected to be, and we hope is, the same, whether the assessment is internal or external. PASS PERCENTAGE 20. The third challenge to pass percentage of 50% is also predicated on the argument that the same was pegged high, instead of 40% or 45%, owing to the proportion of the internal assessment marks in the University colleges being 40% and with which parity was claimed. However it has not been found so. The challenge to 50% pass percentage is liable to be rejected on this ground alone. The counsel for the petitioners has not been able to urge any other argument to find any illegality or wrong in the pass percentage fixed by the respondent University. 21. The counsel for the petitioners has been unable to cite any law or rule requiring the respondent University to provide a lower pass percentage merely for the reason of some other Universities/academic bodies so providing. We are unable to understand any right in a student to challenge such rule of the University. The petitioners if desirous of scraping through W.P.(C) No. 7610/2011 Page 16 of 26 the examination with less than 50% marks, ought not to have taken admission to the respondent University or its affiliate colleges. In today’s day and time of extreme inter se competition when the education sector has been opened to the private players, the argument is contrary to the goal of achieving excellence. The Universities are expected to impart and instill education and knowledge and not to churn out graduates with Degrees but with little knowledge. Assessments are designed to measure student learning at the end of a period of time and play an important role in holding the system responsible for student outcomes particularly when they are shared publicly and transparently as part of accountability and improvement systems. The students are the brand ambassadors of the University and a University is entitled to peg its brand higher than other Universities. If the respondent University has opted to confer a Degree or qualification only on those who obtain at least 50% marks, no folly can be found therewith. 22. A Division Bench of this Court in Ashutosh Bharti v. Ritnand Balved Education Foundation MANU/DE/0024/2005 has already held that if any step is taken towards better educational method and standards, not only the W.P.(C) No. 7610/2011 Page 17 of 26 Court should not come in the way but must command and encourage it. Better standards are required for learning and it can be only from experiences and different modalities. Educational Institutions are the best judges to impose appropriate restrictions and conditions. Merely because the conditions which are imposed may be found inconvenient to some students, it cannot be challenged as being arbitrary. Recently another Division Bench in Independent Schools' Federation of India (Regd.) v. CBSE MANU/DE/3352/2011 reiterated that the Courts are not experts to judge the decisions that have been arrived at by the Educational Bodies and experts and the same are policy decisions with which the Courts would be slow to interfere. 23. The fixation of the pass percentage is also dependent on curricula amongst other factors. The expert academicians of the respondent University in the light of the course curricula have fixed the pass percentage of 50%. It is not the case of the petitioners that the course curricula and the other factors in the other Universities which may be having a lower pass W.P.(C) No. 7610/2011 Page 18 of 26 percentage is the same. Even if it was possible to make out a case for discrimination, none has been made out or pleaded. 24. We are also of the opinion that even if the course curricula were to be the same, no case of discrimination is made out. A University/academic body is always entitled to set higher benchmark. It is not without any reason that a handful of Universities of the world qualify to be in the Ivy League. The students, after joining the University cannot be permitted to compel the University to lower its standards. It is the student who opts for the University and not the other way round. If the student feels that he is unable to cope with the University standards, it is for him/her to opt out and he cannot be permitted to create circumstances which would lead to the University lowering its standards. The prospective employers judge the merits of the prospective employees from their qualifications and in which University forms a relevant criterion. It is for this reason only that students of Universities which maintain high standards command better emoluments than those of other Universities. Passing out from an Ivy League University opens doors to a better future which passing out in the same course from W.P.(C) No. 7610/2011 Page 19 of 26 another University does not. It cannot be lost sight of that of the stated 28000 students of the respondent University a mere 200 have filed this petition. A handful of students cannot dictate the standards of the University. There is thus no merit in the said challenge also. The Apex Court in Prof. Yashpal v. State of Chhattisgarh (2005) 5 SCC 420 observed that an academic Degree is of great significance and value and goes a long way in shaping the future of the holder thereof and the interest of the society requires that the holder of such a Degree must possess the requisite proficiency and expertise in the subject which the Degree certifies. 25. Reference may also be made to Visveswaraiah Technological University v. Krishnendu Halder (2011) 4 SCC 606 where the Apex Court has held that the object of prescribing eligibility criteria is to ensure maintenance of excellence in standards of education and not to fill up all the seats. Reducing the standards to fill the seats was held to be a dangerous trend which will lead to destruction of the quality of education. Warning was sounded of creeping commercialization of education and it was reiterated that determination of such standards being part of academic policy of the W.P.(C) No. 7610/2011 Page 20 of 26 University, are beyond the purview of judicial review. Accordingly, the action of the University prescribing higher standards for admission than those prescribed by AICTE was upheld. PROMOTION RULES 26. What has been observed by us herein above with respect to pass marks equally applies to the rules of promotion. We may notice that the petitioners are the admittees to the University of the year 2009-10. Earlier also the admittees of the said year had filed petitions before this Court challenging the denial of promotion from the first to second year owing to the amendments of 20th October, 2009 to inter alia Ordinance 11 of the University. The said challenge was decided by one of us vide judgment Siddharth Tomar v. GGSIP University 172 (2010) DLT 82. It was held that since the amendment was of a date after the admission, the same would not apply to the admittees of the said year. On appeal by the University thereagainst, being LPA No.677/2010, a settlement was arrived at as recorded in the order