Himachal Pradesh High Court
Sidhant Malhotra & Others vs H.P. Technical University on 6 September, 2017
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 380 of 2017 .
Date of Decision: September 6, 2017 Sidhant Malhotra & others ...Petitioners.
Versus H.P. Technical University, Hamirpur & another ...Respondents. Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 Yes.
For the Petitioners: Mr. Ajay Sharma, Advocate, for the
r petitioners.
For the Respondent: Mr. Surinder Sharma, Advocate, for respondent No.1.
Mr.Rajesh Kumar, Advocate, for
respondent No.2.
Sanjay Karol, Acting Chief Justice.
Petitioners were admitted to various 4 year degree courses undertaken by MIT College of Engineering and Management (respondent No.2). For the Session 2014-16, they have completed their classes. Finding the infrastructure and the qualitative education to be lacking, petitioners desired their transfer to different colleges of the State. Their applications for migration came to be 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 2
rejected by H.P. Technical University, Hamirpur (respondent No.1), for the reason that the petitioners had not cleared their examination for the semesters for which .
they were imparted education by respondent No.2- Institution. It is in this backdrop the petitioners have laid challenge to the decision rejecting their applications for migration as also challenged the validity of the relevant clauses of the Ordinance, so issued by respondent No.1, laying an embargo of migration, to be violative of Articles 14, 19 and 21 of the Constitution of India.
2. Thus, primary issue which arises for consideration is as to whether the following clauses of Chapter-I, Ordinance No.2 notified by virtue of Section 35 of the Himachal Pradesh Technical University Act, 2014 (hereinafter referred to as the Act), can be said to be unconstitutional or not:-
"2. Migration of Students In pursuance of the provisions of Section 35 of the Himachal Pradesh Technical University Act 2014 (9 of 2014), the Board of Governors of the Himachal Pradesh Technical University, hereby makes the revised Ordinance 3 relating to Migration of students.
1. Migration from University School of Studies to University maintained institutions or affiliated institutions and vice-versa or from one institution ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 3 to another institution in the same programme/discipline in the second year/third semester will be allowed only after the completion of the 1st year and is applicable only to students .
who are eligible to register for 3rd semester. Inter college migration within the same city shall be discouraged.
2. Migration shall be allowed after completion of the second semester but before start of the 3rd semester. The application on the prescribed form should be submitted to the University within one month of start of session along with NOCs from the both the institutions.
11. In case of inter University migration, the following conditions shall apply:
The candidate should have passed all the courses of the first year of the University from where he/she wants to migrate.
The courses studied by the candidate in first year must be equivalent to the courses offered in Himachal Pradesh Technical University.
Deficiency, if any, should not be more than three subjects. The candidate would be required to furnish an undertaking that he/she will attend classes and pass the course found deficient.
The institute and the university where the student is studying and the institute, to which migration is sought, have no objection to the migration. There is a vacant seat available in the discipline in the college in which migration is sought. No change of Discipline/course shall be allowed.::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 4
In addition to the above, migration will be governed by the rules of the concerned University to which the migration is sought.
13. Migration fee: The migration fees shall be as .
under:
(a) Rs. 10,000/- for Intra-University Migration.
(b) Rs. 20,000/- for Inter-University Migration.
(i. for those students who seek migration during tenure of the course) (ii Normal migration fee shall be charged from HimTU passed out students)."
3. From the response so filed by respondent No.1, it is evident that the petitioners are seeking inter University migration, which is governed by the relevant clauses of the Ordinance reproduced supra. The difference between inter and intra University migration stands explained, with which we are not concerned.
4. Certainly one thing is clear that petitioners have not cleared their 1st, 2nd, 3rd and 4th semester examinations.
5. At this point in time, one may only take note of the fact that lack of infrastructure or qualitative education not only stands refuted by respondent No.1, but also remains unsubstantiated by the petitioners. To the contrary, H.P. Technical University, Hamirpur ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 5 (respondent No.1) has been issuing directions for complying with the norms so issued by All India Council for Technical Education (AICTE). Also it is evidently clear .
that the examining authority is H.P. Technical University, Hamirpur (respondent No.1) and not MIT College of Engineering and Management (respondent No.2).
6. Respondent No.2 has further clarified that all instructions and guidelines issued by respondent No.1 are complied with in letter and spirit. On merits, it is pointed out that for the course in question i.e. B-Tech (2014-18) out of 156 students so admitted, 148 are still pursuing their courses with no grievance of any nature, whatsoever.
7. In our considered view, petitioners failed to substantiate any lack of proper infrastructure; non compliance of statutory provisions; non compliance of guidelines governing the field; and inadequate standard of teaching. The majority of children admitted to the course in question are still pursuing their studies with respondent No.2-Institution. They have not sought inter University transfer.
::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 68. The Act came to be notified by the Government of Himachal Pradesh. The object and purpose of the Act being establishment, incorporation .
and regulation of Technical University in the State of Himachal Pradesh. Chapter-VI, Sections 33 to 36 of the Act enable the University to promulgate and issue Ordinances, Statutes and Regulations. Section 8 empowers the University to establish and maintain constituent colleges/institutions/off-campus Centres/Off-
shore Campuses and Study Centres. Section 5 empowers the University inter alia to hold examinations and confer degrees. Section 9 empowers the University to affiliate, admit and recognize any College/Institution as may be prescribed by the Ordinances. That respondent No.2 is one such institution is not in dispute. The overall control of conduct of examination is that with the University. The object of the University is to develop the knowledge of science etc. for advancement of quality of life of mankind; supply the required skilled manpower for fulfilling the needs of society and national development plans; develop pattern for teaching and training at various levels; derive benefits from the ever growing ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 7 scientific and technological knowledge; to establish close linkage with Industry to make teaching, training and research in the University relevant to the needs of .
society; to affiliate or recognize colleges or institutions within and outside the State of Himachal Pradesh; and to function as a leading resource Centre for knowledge management and entrepreneurship development in the area of Science and Technology.
9. It is with this avowed object, respondent No.1 is conducting the examination, more so, to enhance the standard of the University. The Ordinance in question came to be promulgated by virtue of Section 35 of the Act.
10. In the instant case, the legislative competence of the State to promulgate the Ordinance is there. The question which arises for consideration is as to whether the provisions thereof, are violative of Part-III of the Constitution or not. Having applied our mind, we do not find it to be so. Once if a student is admitted in a particular Institution, for a particular academic course, it is expected of him to pursue the studies diligently and clear the examination for the semesters in the given ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 8 year. Examination to be conducted is by the University.
It is not left to the ipse dixit of the Institution imparting education. There is uniform standardization of courses .
and the examination to be conducted by the University.
Permitting non-meritorious student to migrate may only entail bringing bad name to the Institutions and the University. Hence there is no illegality in imposing the condition of having cleared examination for the academic year in relation to the students seeking migration.
11. r The Apex Court in Medical Council of India vs. Sarang and others, (2001) 8 SCC 427, while dealing with the regularization which required a student admitted into 1st year of MBBS course, to have completed 18 months study in the transferee college observed as under:-
"6. In matters of academic standards, courts should not normally interfere or interpret the rules and such matters should be left to the experts in the field. This position has been made clear by this Court in University of Mysore v. C.D.Govinda Rao, AIR 1965 SC 491, State of Kerala v. Kumari T.P. Roshana, (1979) 1 SCC 572 and Shirish Govind Prabhudesai v. State of Maharashtra, (1993) 1 SCC 211. The object of the said Regulation appears to be that although the course of study leading to the IInd professional examination is common to all medical colleges, ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 9 the sequence of coverage of subjects varies from college to college. Therefore, the requirement of 18 months of study in the college from which the student wants to appear in the examination is .
appropriately insisted upon. Migration is not normally allowed and has got to be given in exceptional circumstances. In the absence of such a stipulation as contained in Regulation 6(5), it is clear that the migrated student is likely to miss instruction and study in some of the subjects, which will ultimately affect his academic attainments. Therefore, the strained meaning given by the High Court, which actually changes the r language of Regulation 6(5), is not permissible. Thus we disagree with the view taken by the High Court and state that the correct interpretation is as given by the Medical Council of India, set forth above by us."
12. While dealing with the restriction of migration imposed by the Medical Council of India, the Apex Court in Shirish Govind Prabhudesai vs. State of Maharashtra and others, (1993) 1 SCC 211, has held as under:-
"7. The recommendations on Graduate Medical Education are by an expert body of the Medical Council of India which is entrusted with certain statutory functions relating to medical education by the Indian Medical Council Act, 1956. The Medical Council of India having chosen to accept these recommendations, such a condition of eligibility for migration/transfer from one medical ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 10 college to another adopted by the recognized medical colleges cannot be termed unreasonable or arbitrary. The qualitative difference between the non-recognized medical colleges generally as .
compared to the medical colleges recognized by the Medical Council of India, the recognition being based on certain objective standards relating to medical education, and the competitive merit forming the basis for admission to a recognized medical college justify as reasonable such a restriction for grant of permission for migration/transfer from one medical college to another. One of the purposes served by such a restriction is to permit this inter-college movement of students after passing the first MBBS examination only between students of recognized medical colleges and to prevent indirect entry into recognized medical colleges of students who had failed initially to secure entry into a recognized medical college. Movement of students between recognized medical colleges only is quite often to facilitate the students thereof in certain circumstances without conferring on them any additional benefit after the initial entry to a medical college duly recognized. Viewed in this manner, such a condition of eligibility for migration/transfer to a recognized medical college permitting only students of recognized medical colleges is neither arbitrary nor unreasonable. There being no inherent right in a student admitted to a non-recognized medical college to claim such migration/transfer, this restriction for ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 11 migration/transfer imposed by the recognized medical colleges on the basis of the recommendations adopted by the Medical Council of India, there is no foundation for the claim for .
such migration/transfer made by the students of non-recognized medical colleges. "
13. It is a settled position of law that intra University migration can be done only, in accordance with the procedure established by law. It is not a fundamental right vested in the student. [Medical Council of India vs. Diparani P. Deshmukh and another, (2000) 9 SCC 163 & Nitasha Paul vs. Maharishi Dayanand University Rohtak and others, (1996) 2 SCC 103].
14. The Hon'ble Supreme Court in Sanchit Bansal v. The Joint Admission Board, (2012) 1 SCC 157 held:
"An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 12 uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide."
(Emphasis supplied) .
15. In the present petition the challenged clause is applicable to all students and not only to the petitioners.
Furthermore, by requiring that the student must have passed the courses, the rule seeks to ensure that the standards of education that are imparted are those of excellence. Since the challenged clause is applicable to every student with a desire to migrate and since it maintains educational standards it cannot be said that the said clause is arbitrary, or that it does not achieve any object, or that it serves as a mechanism to put mala fide intentions into action.
16. The role of statutory expert bodies on education and role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. [All ::: Downloaded on - 12/12/2008 05:32:42 :::HCHP 13 India Council for Technical Education v. Surinder Kumar Dhawan, (2009) 11 SCC 726]
17. Courts will interfere only if they find all or any .
of the following: (i) violation of any enactment, statutory Rules and Regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious.
With the aforesaid observations, present petition is dismissed, so also pending application(s), if any.
(Sanjay Karol), Acting Chief Justice.
September 6, 2017 (Sandeep Sharma),
(Purohit) Judge.
::: Downloaded on - 12/12/2008 05:32:42 :::HCHP