Thufail & Anr. v. University of Delhi & Ors.

(vii) that the aforesaid Clause amounts to impermissible discrimination based on region;

(viii) that the aforesaid Clause in effect ousts the students, who though have qualified an examination recognized as equivalent to the CBSE (Class XII) examination, from admission to respondent University inasmuch as with the prevalent state of W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 cut offs, with a disadvantage of 10% no admission can possibly be expected; the Courts cannot be oblivious of the said effect of the Clause;

(ix) that the Scheme of Examination is in the hands of the State

Boards and the students have no control thereover and cannot be made to suffer for the State Board Examinations which they have qualified having a theory component of less than 70%;

(x) that the aforesaid Clause is arbitrary in as much as it though on the one hand lays emphasis on the result of theory examination by levying a disadvantage of 10% on students whose qualifying examination has less than 70% component of theory examination and on the other hand ousting as aforesaid from admission a student who though may be having 100% marks in the theory examination, even if component thereof is of less than 70%;

(xi) that the aforesaid clause has to be interpreted as vesting a discretion in the affiliate colleges to admit such students who notwithstanding the theory component of the examination being W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 less than 70%, have secured cent percent or high marks therein or in whose marks in theory and in practical or in continuous evaluation, there is no huge difference;

(xii) that in Science courses to which the aforesaid Clause is applicable, a practical examination conducted by an outside agency is also a test of knowledge and the levying of disadvantage for a more than 30% component of practical examination is arbitrary; reliance in this regard is placed on Francisco D Luis Vs. Director, Board of Secondary and Higher Secondary Education and the State of Maharashtra 2008 LawSuit (Bom) 3400 and on the final report on Quality in School Education prepared by the Institute for Studies in Industrial Development for Quality Council of India;

(xiii) that the respondent University, being a Central University, cannot give preference to the CBSE Board and discriminate against other Boards;

(xiv) that the aforesaid Clause ought to be interpreted at best as excluding the marks of internal assessment and / or continuous W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 evaluation and not marks of practical examinations held in Science subjects and which practical examinations marked by external examiners and not by the schools in which the petitioners have studied; owing to involvement of an outside agency, there is no scope of favoritism in the marking in the practical examination;

(xv) that the other State Universities are treating the CBSE at par with the State Boards of examination and the situation has to be the same all over;

(xvi) that there is no basis for adopting the pattern of CBSE as the criteria;

(xvii) that even if it were to be held that the respondent University has a valid basis for judging the merit of the candidates on the basis of result the theory examination only, even then the solution applied thereto of levying a disadvantage of 10% of the total marks on the student in whose qualifying examination the component of theory is less than 70% is arbitrary and bears no rational nexus to the object sought to be achieved; it would be W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 understandable if the respondent University judges the comparative merit on the basis of the marks secured in the theory paper, by treating the component thereof whether of 70% as in CBSE or of 60% or 50% as in some other qualifying examinations subject matter of these petitions, as 100%; alternatively it is suggested that the deduction should only be from the marks in internal assessment or continuous evaluation or in practicals by 10%, and by not levying deduction of 10% of the total marks; yet alternatively it is suggested that a formula for giving equivalent weightage should be devised (I may notice that this argument has been raised only by the counsel for the petitioners in W.P.(C) Nos.6325/2015 and 6337/2015 but was subsequently adopted by other counsels as well);

8. I may notice that applications for impleadment have been filed in W.P.(C) No.6362/2015 and in W.P.(C) No.6282/2015 by candidates claiming to be similarly placed as the petitioners therein and claiming the same relief.

9. The counsels for the respondent University argued: W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 (a) that all the petitions do not even challenge the validity of the Clause and the challenge in W.P.(C) Nos.6325/2015 and 6337/2015 is not even to the current notification but to the notification of the previous year though identical.; (b) it is not as if the aforesaid Clause has been sprung as a surprise on the students; it was in force in the previous year as well and is also contained in the Bulletin of Information for Admission to Undergraduate Courses for the academic session 2015-16 released by the respondent University as far back as on 19th May, 2015;

(c) no challenge thereto was made by any of the students;

(d) the first of such challenges in these petitions came up before this Court only on 30th June, 2015 i.e. after the first list of cut off marks for admissions had been released on 25th June, 2015 and admissions pursuant thereto been made; on 30th June, 2015, the second list of cut off marks had been released and admissions pursuant thereto also have been completed; that the W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 third list of cut off marks also stands released on 4th July, 2015 and admissions in pursuance thereto also stand completed; (e) any interference with the Clause aforesaid at this stage would create chaos, unsettling the entire admission process and would require the entire process of admissions to begin afresh, delaying the commencement of the academic session; (f) that there are 45 different Boards of Examination in the country and each of which follows its own pattern, with the component of theory examination varying from 20% to 70%; (g) that in comparison, CBSE, even in subjects of Music and Painting has a theory component of 60% -- the disadvantage of 10% in terms of aforesaid Clause is applied even to those though passing CBSE examination but in the said subjects having a theory component of less than 70%; it is thus not as if the respondent University gives preference in any manner to the CBSE; the respondent University is applying the aforesaid Clause uniformly; W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 (h) because of such disparity in the different Boards of Examination, it becomes essential for the respondent University to adopt such a criteria;

(i) that the criteria of CBSE of 70% component of theory in most of its subjects has been accepted because CBSE conducts examinations all over the country and has the widest spectrum in comparison to the State Boards of Examination; (j) that the respondent University cannot possibly be expected to harmonize the pattern of examination of all the Boards and has to necessarily evolve its own method; (k) reliance is placed on para 6 of Anvita Singh Vs. Union of India 2012 III AD (Delhi) 133 to contend that the possibility of abuse is no ground to set aside the otherwise valid criteria adopted;

(l) that the petitioners having participated in the selection process on the basis of the Bulletin of Information aforesaid are now not entitled to challenge any clause thereof; W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015

(m) that the Clause ought not to be quashed and the selection criteria adopted ought not to be set aside at this stage when most of the seats in the respondent University and its affiliate colleges have already been filled up and the admittees whereto would be affected by the said outcome, at least without impleading them; (n) that there is an intelligible rationale to the aforesaid procedure adopted; it is common knowledge that the results of internal assessment / continuous evaluation or of practical examinations even if with outside examiners cannot be said to be totally objective and element of subjectivity is bound to and definitely creeps in therein; (o) that the argument, that the Clause aforesaid does not exclude practical examination and only excludes internal assessment and continuous evaluation, is contrary to the emphasis therein by use of the words “must have at least” and of the phrase “theory exams” which has a definite connotation and which is understood as excluding practical examination; W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 (p) that the word “may” in the aforesaid Clause has to be read as “shall”; finding that some of the affiliate colleges were making admissions in contravention thereof, a letter dated 29th June, 2015 by the Dean Students‟ Welfare Office of the respondent University was also issued informing the colleges to enforce the said Clause; the colleges thus do not have a discretion to apply or not to apply the aforesaid Clause; (q) that the respondent University has a centralized process for admission to undergraduate courses in its affiliate colleges and the Clause aforesaid being contained in the Bulletin of Information published by the respondent University, the contention that the affiliate colleges have a discretion to apply or not to apply the aforesaid Clause is misconceived; (r) it is the respondent University which has been announcing the cut off marks for admissions at the successive stages and the role of the affiliate colleges is confined merely to admitting students having marks above the said cut off; W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 (s) Guideline 4 in the Notification dated 20th May, 2015 (supra) also provides “There shall be no „Additional Eligibility Criterion‟ for any category in any college / course” – this Clause is not under challenge; (t) it is not as if the impugned Clause or the Notification dated 20th May, 2015 (supra) of which it is a part has been issued without deliberation; in view of the complaints of disparity in the examinations held by different State Boards, the respondent University constituted a Committee of 30 Experts including members of Administrative Council and Executive Council, headed by Justice (Retd.) S.K. Aggarwal and which Committee submitted its report on 30th March, 2014 and which report was accepted by the respondent University in April, 2014 and whereafter the identical Notification for the academic year 2014-15 was issued; (u) it is settled principle of law that the decision of the Academic Experts who have devised academic / educational policy after W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 deliberation, should not be interfered with merely because another view may be possible;

(v) attention is invited to the Guidelines contained in Ordinance II of the respondent University to contend that the eligibility conditions prescribed by the respondent University for admission and selection of candidates are binding on the affiliate colleges; (w) attention is invited to paras 31 to 33 and 53 of Dr. Vibha Jain Vs. The Director National Board of Examination MANU/DE/7380/2007 to contend that allocating high percentage of marks to viva voce for admission to undergraduate courses should be avoided as there is a certain amount of arbitrariness which may lead to frustration of the very object of selection and disrepute the system;

(x) that the admission of the petitioners who were mistakenly admitted in violation of the aforesaid Clause, was cancelled immediately within one to seven days of admission and the W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 students asked to take back their original documents, for using the same for admission to other courses at other places; (y) attention was invited to the Handbook of Information for the year 2015-16 published by Dayal Singh College (respondent in W.P.(C) No.6337/2015 and W.P.(C) No.6325/2015) to show that the admissions granted in any case were provisional, till verification of documents; (z) that the reliance placed by the counsel for the petitioner in W.P.(C) No. 6282/2015 on Francisco D Luis (supra) is entirely misplaced inasmuch as the same is merely an order of reference to a third Judge, on a dichotomy of opinion of the Judges of the Division Bench; (aa) that all the petitioners are from outside Delhi; admissions to colleges / universities in other States are still open; it is thus not as if even those petitioners who were wrongly admitted and whose admissions have since been cancelled will end up losing one year; it is just that they would not be able to get admission W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 to the respondent University which appeared to be their first choice; and, (bb) reliance is placed on Arpit Singh Vs.

GGSIU 184 (2011) DLT 119 to contend that misplaced sympathy with the students should not be a ground to interfere with the decision of the academic experts.

10. The counsels for the respondent Colleges have adopted the arguments of the respondent University.

11. The counsels for the petitioners in rejoinder have argued, (i) that the arguments of the counsel for the respondent University of selected candidates being not before this Court does not apply to students who were admitted and whose admissions have been thereafter cancelled; (ii) that in the impugned clause, the expression “must have” is viz-a-viz the 70% component of theory but the expression “may be” is used before providing for the levy of 10% disadvantage; thus though the component of 70% in theory is a must for admission at par with CBSE but the levy of 10% disadvantage has been left to the discretion of the college; (iii) that the argument of delay and laches also cannot be applied viz-a-viz the petitioners W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 who were granted admission and whose admission has subsequently been cancelled in as much as the cause of action to them accrued only when the colleges as an afterthought cancelled the admission and immediately whereafter this Court has been approached; attention is invited to the Admission Brochure for the year 2015-16 of Miranda House College where the admission granted is not shown as provisional but it is rather stated that the admission is complete on payment of fees, issuance of role number and identity card and all of which has been done; (iv) that the last date for applying for admission to Kurukshetra University is already over; (v) that it has been held by this Court in Ruchika Duggal Vs.

AIIMS that for a default of the institution, the student should not be made to suffer; (vi) that there is no uniformity in the criteria for admission in all the colleges and each college has its own criteria of admission; and, (vii) that the modern view is that theory examination cannot be the only basis of examination, specially in Science subjects.

12. The counsel for the respondent University has added that the admissions being centralized, the colleges are not even required to publish their prospectus. Attention has also been drawn to Ordinance- XVIII Clause W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 6-A (5)(a)(v) and 6-A (5)(b)(ii) to contend that the criteria for admission prescribed by the respondent University is binding on the affiliate colleges.

13. I have weighed the rival contentions and am unable to agree with the counsels for the petitioners for the reasons following:-

SCC 486 held that when a candidate who takes a calculated W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 chance to get himself / herself selected without protesting against the procedure therefor, cannot, when ultimately fails therein turn around and challenge the procedure. Again, in Manish Kumar Shahi Vs. State of Bihar (2010) 12 SCC 576 it was held that such conduct of a petitioner, of taking a chance, disentitles him / her from invoking the jurisdiction under Article 226 of the Constitution of India and the High Court should refuse to entertain the writ petition. The same view has been reiterated recently in Ramesh Chandra Shah Vs. Anil Joshi (2013) 11 SCC 309 and followed by a Division Bench of this Court recently in Rajesh Kumar Vs. State Bank of India MANU/DE/0310/2015.

Pradesh (1999) 7 SCC 120 held that the criteria for selection of candidates has an important bearing on the standard of education. The contention that the rules for admission do not have any bearing on the standards was negatived. Similarly a Division Bench of which the undersigned was a Member in W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Siddharth Kaul Vs Guru Gobind Singh Indraprastha University MANU/DE/6677/2011 also observed that a University is always entitled to set higher bench mark and it is not without any reason that a handful of universities of the world qualify to be in the Ivy League. I have similarly in Gitarattan Institute of Advanced Studies and Training Vs. Director Higher Education MANU/DE/2730/2010 also elaborately dealt with the role of the university and held that eligibility for admission has a connection with the standard of education and prescription of standards of education is always accepted to be an appropriate exercise of power by the bodies such as the universities granting affiliation.

I. Look at this perspective also, there is nothing strange in the respondent University prescribing the mode of selection for admission to undergraduate courses in Science and there was no scope for anyone to believe that the affiliate colleges were free to follow their own selection criteria.

University and its affiliate colleges were centralized, with a W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 single admission form prescribed by the respondent University being required to be filled and with the students being not required to at all approach the affiliate colleges for admission. Once the admissions are found to be centralized, with common rules for admission to all the affiliate colleges being laid down, no reasonable person could have formed an opinion that the aforesaid clause is not mandatory but directory.

Kumar Yadav Vs. State of Haryana (1985) 4 SCC 417 held that allocation of 22.2% marks for viva voce test, though conducted by external agencies, was excessive and unreasonably high, tending to leave room for arbitrariness. In Vishnu Biswas Vs. Union of India (2014) 5 SCC 774 also, it was also observed that the Courts have always frowned upon prescribing higher percentage of marks for interview even when the selection has been on the basis of written test as well as interview. This is more so, for purpose of admission in an W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 educational institution. Reference in this regard may also be made to Minor A. Peeriakaruppam Vs. Sobha Joseph (1971) 1 SCC 38 observing that even when the interviews are conducted by impartial or competent person on scientific lines, very many uncertain factors like the initial nervousness on the part of some candidates, the mood in which the interviewer happens to be and the odd questions that may be put to the persons interviewed may all go to affect the result of the interview.

Health Sciences Vs. Paryani Mukesh Jawaharlal (2007) 10 SCC 201 where the contention of the University, that the intention of the Regulation Making Authority was to give the dominant and pre-eminent position to the examination where students are assessed by external examiners in an objective manner and that in an internal assessment, an element of subjectivity is likely to creep in and thus the weightage to be given to internal assessment has to be restricted, was accepted. W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015

Board (2012) 1 SCC 157, observed that the process of evaluation and selection of candidates for admission with respect to their performance, process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field smf the Courts will not interfere in such processes.

V. There is however some merit in the contention that the formula adopted by the respondent University in the aforesaid clause to levy a disadvantage is arbitrary. Prima facie merit is found in the contention of the counsels for the petitioners in W.P.(C) No.6325/2015 and W.P.(C) No.6337/2015 that even if the marks scored in internal assessment / continuous evaluation / practical examination are to be disregarded, levy of disadvantage of 10% of the total marks works injustice to the students whose qualifying examination has less than 70% component of theory. Again, it prima facie appears, that such students should be graded on the basis of the marks scored by them in theory examination even if component thereof is less W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 than 70% but which theory examination the respondent University itself treats at par with the theory examination of the CBSE. However as aforesaid, in the absence of counter affidavits and which owing to the urgency expressed were not called for, no definite finding in this regard can be returned. We, in the absence of counter affidavits, do not know the conditions which prevailed with respondent University in devising the criteria so. The Supreme Court in Union of India Vs. Shah Goverdhan L. Kabra Teachers’ College (2002) 8 SCC 228 held that Courts, before interfering, have to give due weightage to the reasons which prevailed with the experts. Without counter affidavits, we do not know such reasons. All that can be done is to direct the respondent University to at least three months before the commencement of admissions for the next academic session, re-consider the said aspect and to publically announce its decision thereon including by communicating it to the various State Boards of Examination for further dissemination to the students who would be eligible and aspiring for admission in the next academic year. W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015

X. A Division Bench of this Court in Siddharth Kaul (supra) also held that mere payment of fee would not create any rights in favour of students and that the principle of estoppel do not arise when the petitioners are fully aware of the situation. Notice may also be taken of National Board of Examinations v. G. Anand Ramamurthy (2006) 5 SCC 515 laying down that the principle of legitimate expectation has no application in such matters.

14. All the petitions are accordingly dismissed. The interim order granted in WP(C) No. 6362/2015 is vacated. Though the interim order as aforesaid was only in WP(C) No.6362/2015, it is further clarified that whichever respondent Colleges have not made admissions against the admissions which have been cancelled and which cancellations were impugned in these petitions, shall now be entitled to do so. A direction is however issued to the respondent University to reconsider the clause aforesaid in terms of para

13. V. No costs.

RAJIV SAHAI ENDLAW, J. JULY 17, 2015 „gsr‟ / pp