Punjab-Haryana High Court
Nupur (Minor) D/O Mrs. Madhu Malhotra ... vs Punjab University, Sector 14, ... on 16 November, 1995
Equivalent citations: AIR1996P&H132
ORDER M. S. Liberhan, J.
1. This order will dispose of CWP No. 9709 and 8732 and 8659 of 1995.
2. Briefly in pith and substance, the facts, in order to deal with the questions raised, are taken from Civil Writ Petition 8709 of 1995.
3. The petitioners passed 10+2 examination in March, 1995 in commerce group with various subjects-combinations as well as choice available for optional subjects from the Central Board of Secondary Education. The petitioners are now seeking admission to 1st B.Com. course, The admission to the said course was on the basis of merit, determined on the percentage of marks obtained in aggregate in 10+2 examination as per the rules, regulations and instructions prevalent at the time the petitioners commenced their studies in 10+2 system.
4. For the admission to the B.Com. course for the session 1995-96 entrance test carrying 100 marks was provided. The selection to the said course was to be made on the basis of merit of the candidates in the entrance test. The test is constituted of:--
(i) Aptitue test;
(ii) General knowledge and current affairs;
(iii) Mathematics or Biological Sciences;
(iv) Economics;
(v) Commerce; and
(vi) Accountancy.
With components (i) and (ii) carrying 20 marks each and components (iii) to (vi) carrying 15 marks each. The petitioners impugned the introduction of entrance test with effect from the current academic year broadly on the grounds:--
(1) Providing of entrance test with immediate effect brought a change in the admission policy. It is without sufficient prior knowledge of the candidates. Change in the mode of selection from merit in qualifying examination to the merit attained in entrance test particularly making it applicable with immediate effect, without providing any time to prepare for the same, is arbitrary and prejudicial to the petitioners. To effect any change in admission policy, ordinarily two years' prior notice is just;
(ii) The petitioners joined 10+2 commerce group on the basis of the procedure for admission followed in the preceding years i.e. admission to the B.Com. course on the basis of marks obtained in qualifying examination of 10+2 i.e. on the percentage of marks obtained in aggregate in qualifying eligibility examination. Petitioners commenced their studies with an implicit understanding, ordinarily accepted, that procedure would be followed in the corning year too. On the above assumption they did not opt for either Mathematics or Biological Sciences as one of the subjects which later carried 15 marks each in the entrance test. Thus, the petitioners changed their position to their disadvantage on the basis of express or implied promise held out by respondent-University by their act -. and conduct, for admission to B.Com. 1st year. Thus, respondents are estopped on the principle of promissory estoppel for introducing the entrance test by changing the policy or mode of admission.
(iii) The introduction of the subject of Biological Sciences in the enirance test is from the trade of science stream of education which is nowhere related to commerce. Similarly, mathematics was also opiional subject. The introduction of both these subjects for entrance test has neither nexus with the commerce group nor with the object to be achieved. Thus, the policy is arbitrary and violative of Article 14 of the Constitution of India.
(iv) Providing of entrance test for graduation course simpliciter when ii is not so provided for other graduation course(s) or other trade any where else is discriminatory, apart from illogical, irrational and unjust. The simple graduation courses cannot be equated with professional courses. Providing of subject of Biological Sciences for entrance test and providing no subject from Humanity Group resulted in discrimination with the students of Humanity Group;
(v) Providing of entrance test amounts to amendment of Regulations prescribed by the Syndicate with the sanction of the Government. The Syndicate cannot prescribe for the entrance test for admission. The amendment of the Regulations is within the sole purview of the Senate. The entrance test is super-imposition over the Regulations providing criteria for admission prescribed by the Senate.
5. The respondents have refuted the averments made in the writ petition. It is submitted that the Punjab University Syndicate, in order to meet the malaise of commercialisation of admission to B.Com. Part I, with the changed scenario of the importance of B.Com. subjects, to ensure the admission strictly according to the merit keeping in view the wide differential in percentage of marks secured by different categories of the students in 10+2 from different groups, sources for admission to B.Com. Part I, for safest and fairest means of comparative evaluation of merits through entrance test in public interest and also in academic interest. It was discussed by the Senate in its meeting held on 16-10-1993 which resulted in providing for entrance test for the Session 1995-96 vide its decision dated 1-6-1995 duly published on 8-6-1995. The students from the commerce, science, non-medical, science group medical, humani-ties or from any other group or trade are eligible for admission to 1st year B.Com. course. It is averred that out of six components, aptitude test, general knowledge and current affairs carrying 40 marks is common to all entrance tests known to the academic world and provides for students coming from any eligible group, trade or course for admission. 45 marks were provided for Economics, Commerce and Accounts subjects, which provide an equal opportunity to the Humanity group and Commerce group etc. 15 marks were provided for either of the subjects of Mathematics or Biological Sciences and it has taken care of for. the students coming from non-medical or medical or from Science or from Arts group or trade. The entrance test provided is fair, relevant and affords an equal opportunity to the students coming from various streams and sources for admission to B.Com.--Part-I, course. All are placed in equal advantageous or disadvantageous position. It is in conformity and in line with the contemporary thinking and trend in educational and academic world. The entrance test has neither directly or indirectly tampered with or brought out any change in the Regulations, nor it is super-imposition on the Regulations provided by the Senate. In fact it is procedural. It provides for modalities in the scheme framed by the Committee for comparative evaluation of merits amongst eligible candidates by safest and fairest means. It provides fair and equitable opportunity to one and all to eompete for admission. It was also averred that not only the Punjab University but various other Universities are also holding entrance test to various graduation courses. Regulations prescribe only eligible conditions for admission in which no change has been brought out. The entrance test as stated above only relates to process or mode of admission.
6. It will be expedient to appositely advert the provisions of the Punjab University Act, 1947 (hereinafter referred to as the 'Act') and the Regulation, a reference to which is the prefatory necessity to determine the questions raised.
7. Section 11 clothes the Senate with a right of management and superintendence over the affairs of the University. It runs as under:--
"The Senate shall have the entire management of, and superintendence over the affairs, concerns and property of the University and shall provide for that management and exercise that superintendence in accordance with the statutes, rules and regulations for the time being in force."
8. Section 31 authorises the Senate to frame regulations. The relevant clauses of it run as under:--
"(1) The Senate, with the sanction of Government may, from time to time, make regulations consistent with this Act to provide for all matters relating to the University.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for.....
xx xx xx xx xx
(n) the courses of study to be followed and the conditions to be complied with by candidates for any University examination, and for degrees, diplomas, licences, titles, marks of honour, scholarships, and prizes conferred or granted by the University;
xx xx xx xx xx "(u) adequate arrangement for proper administration of the colleges other than Government Colleges affiliated to the University."
Regulation No. 10;1 framed thereunder runs as under:--
"10.1 Without prejudice to the generality of its powers of management and of superin-
tendence over the affairs, concerns and property of the University, the Senate shall, in particular, consider and take decision on the recommendations of the Syndicate in the following matters:
(a) Affiliation and disaffiliation of cot-leges; .
xx xx xx xx xx
(d) Scale of fees for entrance into the University and continuance therein, for admission to the examinations of the University, for attendance at any lectures or classes in connection with the University, for the degrees to be conferred by the University and for such other matters as may be specified by the regulations, and xx xx xx xx xx Regulation 24 provides the procedure for bringing about amendments in the regulations.
9. The Syndicate is vested with the executive Government of the University vide Section 20 of the Act, it runs as under:--
"The Syndicate may make such rules, not inconsistent with the provisions of this Act and the Regulations, as they may deem neces sary, for carrying on the executive Govern ment of the University as specified in sub section (1)."
10. The conditions of eligibility for admission to B.Com. (I) are provided by Regulation 3.1 which runs as under:--
"Admission to the 1st year 6f the B.Commerce (General) degree course Shall be open to a person who has passed one of the following examinations conducted by the recognised Boards or University.
(a) 10+2 examination under 10+2+3 system of education with the groups and subjects detailed therein.
xx xx xx
11. The first question posed for consul-
eration by the learned counsel for the petitioners is "could entrance test be made applicable with immediate effect, without notice to students, and without providing just period or time to students to prepare for entrance test examination?
12. The learned counsel for the petitioners argued, the petitioners joined 10+2 (Commerce Group) while the prevalent regulation for seeking admission to B.Com. (I) provided, the admission on the basis of comparative merit of the marks obtained in the eligibility qualifying examination. The petitioners prepared themselves for two years for the same. The entrance test was introduced in April, 1995 to be held in July, 1995 which did not provide sufficient notice to prepare for the entrance test particularly when one of the subjects i.e. Biology Science or Mathematics of 12th standard was not a part of their curriculum in the syllabus for 10+2 classes. The change of policy should be made with sufficient notice, otherwise it is violative of principles of just expectations and is arbitrary. In order to support his submissions, the learned counsel for the petitioners relied on Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, AIR 1986 SC 1877, Shalu Gupta v. State of Punjab, 1992 (3) SLR 271, Prashant Pravinbhai Kanabar v. Gujarat University, 1990 (6) SLR 726.
13. The relevant facts requiring mention to answer the questions raised are:-- The Senate considered the question for providing entrance test in its meeting on 16-10-1993 for the session 1995-96. The Syndicate vide its decision taken in April, 1995 as amended on 1-6-1995, duly published on 8-6-1995 provided for the entrance test to be held in July, 1995. In view of regulation 3.1 referred to in the earlier part of the judgment, admission to B.Com. (I) is available to the students from various trades or courses. The students from Commerce, Science (non-medical group), science (medical group) humanities and other groups are eligible for admission. The available seats for B.Com. (I) in various affiliated Colleges are limited while the admission seekers are in large numbers.
14. Learned counsel for the respondents submitted that the petitioners have not suffered any special disadvantage as the period provided for the entrance test is the same for all the students seeking admission from all other streams or groups of the eligibility qualifying examination. The object of the entrance test is to evaluate the comparative merit of the admission seekers, with equal advantage or disadvantage. They are placed on the same pedestal. The entrance test is only a mode of testing or evaluating the comparative merit of the students.
15. In order to determine whether the period provided for the entrance test is just or arbitrary or is violative of any right of the petitioners one has to advert to and examine the nature of right claimed by the petitioners. It was observed in Muneeb Ul Rehman Haroon v. Government of Jammu and Kashmir, AIR 1984 SC 1585, that right to admission does not fall under any of the fundamental rights as defined by the Constitution of India. No statutory provision has been brought to our notice which confer a right to admission claimed by the petitioners. It is quite discernible that the students have neither any constitutional right nor legal right to admission nor they acquire any other right exeept for consideration for admission if they fulfil the conditions of eligibility. One does not acquire any right till the admission is granted. The petitioners are entitled to claim protection of Article 14 of the Constitution, only after they are admitted. Providing of regulation affecting their chances of admission to higher studies by itself cannot be tested on the touchstone of Article 14 of the Constitution of India, particularly when it provides an equal treatment to all the students seeking admission.
16. When the intention of the entrance test is to evaluate the comparative merit and placing all the students in the similar situation being of procedural nature, it cannot be said to be unjust or unfair.
17. The Hon'ble Supreme Court in State of Andhra Pradesh v. Lavu Narendra Nath, AIR 1971 SC 2560, while answering the question to the effect that students were handicapped because of lack of sufficient time for preparing themselves for the entrance test, in almost parimateria facts and similar situation, as in the instant case, observed, "the mere fact that it was introduced in 1970 would be no ground thal method of selection was invalid. xxxxx. As regards the complaint of notice being short, it affected everybody equally adversely, and number of students taken the examination demonstrate Everybody who had cared to sit in the examination and had an opportunity of doing so.
18. In our considered view which is supported by observations made by Hon'ble Supreme Court, the undisputed facts, time period provided for the entrance test to the students of various groups i.e. science (medical and non-medical), B.Com. humanities etc. were similarly situated. All had the similar advantages and disadvantages. It is for the academicians to take into consideration all the factors while introducing the entrance test i,e. its reasonableness or unreasonableness, as they are better informed and better equipped to judge the fairness or unfairness. Ordinarily, their judgment should not be substituted by the opinion of the Court. The Court's opinion can be no substitute particularly in exercise of writ jurisdiction. Further as in the later part of the judgment, we find there is no error in exercise of jurisdiction.
19. The facts of the judgment cited in Shalu Gupta's case, 1992(3) SLR 271 (Punj) (supra) are not in pari materia with the facts and circumstances of the present case. Therein the criteria for selection of sports quota on the basis of merit in the sports was cnanged into merit in the entrance test. It is in those circumstances that it was observed by Hon'ble Single Bench that 'criteria laid down would cause irreparable loss and unavoidable hardship to the students and in order to undo this unfair result, the Hon'ble single Judge found it to be just and reasonable to direct that criteria laid down by the Government should be enforced w.e.f. the admissions to be made in 1995, which is not the case in hand. There is no change in the criteria of selection, It is only the mode of evaluation of the merit which has been changed which is same for all irrespective of their categories or source.
20. The Hon'ble Supreme Court in Dr. Dinesh Kumar's case, AIR 1986 SC 1877 (supra) made the following observations:--
"Since as a result of the direction given by us on 2nd May, 1986, our judgment dated 22nd June, 1984 is going to be operated only with effect from the academic year commencing in 1987 and the first All India Entrance Examination for admission to M.B.B.S./B.D.S. course would be held only in June 1987, we would request the Education Department of each State as also the Board of Secondary Education in each State to take the All India Entrance Examination and to suitably amend its syllabus or course for the 12th year so as to bring it in line with the syllabus approved by us so that the students passing the qualifying examination of the 12th year may be properly equipped to face the All India Entrance Examination. It would be desirable if a common syllabus is adopted at +2 level throughout the country so that there may be uniformity in the educational pattern and the students in various States may be able to appear in the All India Entrance Examination on a footing of equality without any undue advantage to one as against the other."
We fail to comprehend how the principles laid down by the judgment cited runs contrary to the facts and circumstances of the present case. On principles, it was observed, rather desired that a common syllabus should be adopted in order to enable the students to compete on the footing of equality and not to cause undue advantage to one against the other. In the facts and circumstances of the present case, as narrated above in the earlier part of the judgment, at the cost of repetition we are of the considered view that all the students taking the entrance test had been treated equally with respect to advantages and disadvantages. There is no undue advantage or disadvantage to any student much less the class of students. Same time period had been allowed to the students from all streams of eligibility to appear in the entrance test. Though all the subjects are not common to (sic) has been made by the respondents to choose one subject from almost all the streams except tlie components of subjects at serial Nos. 1 and 2 which are of general nature, common to all so as to test the general awareness and capability of the students.
21. We are further of the opinion that eligibility test provided to evaluate the knowledge of the students cannot be struck down solely on the ground of inconvenience to those affected. It is the public interest, purposive approach which has to be given preference than to legalism, if at all any. One cannot be dogmatic or unrealistic in one's approach. Neither there can be any litmus test or watertight compartment nor there can be any mechanical approach bereft of ground realities to judge the validity of the rules. Neither fairness in procedure, with the growth of knowledge of science of administration and public expectation in the academic fields permits nor judicial interference can be permitted, to freeze the creativity to evaluate the merit of the students for admission to the University courts. It is the creative responsibility of the University to determine the merit amongst the students seeking admissions There is no gain-saying that ordinarily unless the decision of the University is so unfair, that it cannot be sustained in the touchstone of Article 14 of the Constitution of India, the Courts will not decide whether the decision is right or wrong. The decision is intrinsically fair, proper, regulative in action with an objective criteria. It is not sporadic, bereft of reason, the same should not be interfered with particularly when the authorities have exercised the skilled judgment of professionals.
22. We are further of the opinion that introduction of the entrance test to evaluate the relative merit without entering into the pragmatic motive of the University, the principle of fairness which needs bona fide honest decision bringing impartiality to one's mind on the problems i,e. different Universities have different standards of educations, different mechanism of imparting instructions and various other reasons to receive education in different streams and making the students eligible for admission to B.Com. (1) cannot be termed as not acting fairly, particularly in the circumstances with the administrative working in the facts and circumstances of the case in hand. The University authorities who are better informed have ensured reasonable balance between the con-flicting interests of all concerned i.e. students coming from different streams having different subjects in their 10+2 examination. Providing of entrance test on the face of it is the necessity, as large number of students have applied for admission, as compared to the number of seats available.
23. The eligibility conditions holding the field cannot be perpetuated in favour of the petitioners for securing undue advantage over the students coming from medical and non-medical groups, while evaluating their re-lative merit for admission to B.Com. Part (I).
24. The suggestion put forth that system of moderation should have been adopted instead of providing the entrance test is noted as having been advanced to be rejected. The Courts are not ordinarily expected to judge the relative merit of the two systems viz. the system of moderation and that of entrance test to evaluate the relative merit of the students. It is for the authorities who are well equipped and dealing with the situation of ground realities to assess, which is to be preferred.
25. In our above view, we are supported by the judgment reported in P. P. Kanabar's case, 1990 (6) SLR 726 (supra) where the Division Bench, after taking note of the law laid down in J.N.U. Students Union v. J. N. University, AIR 1985 SC 597 (sic), observed, "it has always been the approach of the Courts in such academic matters not to substitute their own opinion or view for the opinion or view expressed by the expert bodies, consisting of experienced teachers and academicians". It was further observed after taking note of K. P. Ganguly v. University of Lucknow, AIR 1984 SC 186 and J.N.U. Students' Union case (supra) that, "it is not for the Courts to venture to pronounce upon question so purely academic in nature. Once the Academic Body had made the marks obtained at the MBBS examination as a criterion, admissions had to be given on such a criterion and the High Court could not have introduced its own notions in such academic matter. The High Court would not be competent to do so and has no jurisdiction to import its own ideology. Decisions taken by the Academic Bodies in such matters are in the nature of policy decisions, unless they are found to be unreasonable or arbitrary. There can be two opinions with respect to such policy decisions, but the Court cannot strike down such decisions because the other view appears to it to be better or more desirable. It is not safe to test the validity of a rule on the touchstone of fortunes of individuals."
26. For the contention raised that entrance test provided cannot be sustained as there is element of surprise, learned counsel for the petitioners relied on Dr. Mohamad Shabir's case (supra). Again the observations in this case have been made in the peculiar facts and circumstances of that case. It is not pari materia with the facts of the instant case, nor it lays down any principles of law as a panacea for all situations. Be that as it is, there is no clement of surprise herein. Almost a period of two months was given to the students to prepare for the entrance test.
27. It was vehemently argued that by providing of mathematics and Biological Sciences as one of the components of the entrance test, the students of B.Com. have been put at a disadvantage qua the students from other streams. It was further urged that system of moderation should have been adopted. We find no force in the submissions made by learned counsel for the petitioner for the reasons recorded in the earlier part of the judgment.
28. The second question posed by the learned counsel for the petitioners for determination is "whether the rule provided for entrance test is violative of the principles of just expectation?"
29. Factual matrix pressed into service to apply the principles of just expectation is that the students joined 10+2 course when regulation for admission was on the basis of merit determined on the marks obtained in the eligibility examination irrespective of the streams from which a candidate sought admission. Eligibility as the source from various groups for admission was never challenged. It was just expectation of the students that the policy prevalent at the time of admission shall continue. The principle of legitimate expectation sprang from the basic principle of equitable estoppel. There is no gain-saying that promise and procedure capable of giving rise to just expectation, which the Courts would ordinarily enforce. Once a promise has been held out by the authorities that a particular procedure would be followed and the person acting on such promise when adversely affected by a change, it is expected that he would be entitled to enforce his right on the principle of 'just expectation', on the basis of existence of a regular practice which could reasonably be expected to continue. I may hasten to add, it is well established that the authority could not be divested of its statutory power or duty on the principles of 'just expectation'. The principles of 'just expectation' cannot be invoked where the public interest demands a change in policy in order to give equal opportunity or to adopt a better mode for evaluation of comparative merit, The principle of just expectation could not divest the authorities of their statutory powers or duties particularly while acting on the principle of just expectation it may result in unjust chaos. The principles does not debar the authorities to change its policy. Policy is of not surmountable nature. It is based on the principle of equity. One has no enforceable right not to have a policy altered to his detriment. On the analogy of the principle of equitable estoppel the rule of just expectation with respect to a policy no doubt can be changed on certain conditions being specified particularly when the public interest demands so and the authority changing the policy has acted fairly. Ordinarily the principle of just expectation applies through substantial rights accruing to a person and ordinarily not to the procedural rights. Reference may be made to Schmidt v. Secretary of State, 1969 (1) All England Reports 904.
30. It was observed in Ashwin Prafulla v.
State of Maharashtra, 1992 (1) SLR 179 that principles of legitimate expectation as the spice of principles of equitable estoppel culled out are:-- (a) that one party by his word or conduct made the other believe or make a clear or equivocal promise or representation which is intended to create legal relation, (ii) the fact legal relations to arise in future having regard to the dealing which has taken place between the parties in exercise of statutory or executive powers alteration of the position, acting on the basis of the representation established. It was further observed, "it is difficult to posit such a situation in relation to a student prosecuting his duties in the medical college, it is irrespective of the availability of the educational prospects, continuance of post graduation is not the right of the students, (ii) since best prevailing conditions required for running the institutions, conduct of examinations and students to be tutored and other relevant matters may be entrusted to expert bodies like Universities, for issuance of prospectus from time to time. The change may not affect the admissions already made.
31. Logistically, it was observed that decision necessarily imply the prospectus issued by the Government is alterable on subsequent occasion if circumstances justify the same. The Government can issue rules or regulations as a corollary power to amend or alter or even repeal, reissue such rules or regulations. In this context, it was observed, "it is assumed in some decisions that students prepared for qualifying examination on the basis of the prospectus relating to the Post Graduate Course approved at that time, are entitled to continue to receive benefits or advantages arising therefrom and consequently no change can be made to their prejudice. It is difficult to accept such a broad proposition. It cannot be expected that a student would look for general rules operat-ing at or about the time when he intensifies his preparation for the qualifying examination and admission to the P. C. course Heights are reached not by sudden flight reached by those who toil upward in night while their com-panions slept, competitive examinations, neck to neck race and spare no pains to achieve the coveted goal. Quite often imponderable factors and fortuitous circumstances may affect the fate. Under such circumstances, it would be unrealistic to posit the theory of promissory estoppel based on elusive concept of the preparation time for qualifying examination. It was found that the concept of vested right on the principle of equitable estoppel would be inappropriate in view of the reasons that holding of succeeding examination for entrance on the basis of prevalent rules earlier and the changed one would result in the Govt. to oblige to hold different examinations for different groups of students till one gets admission would be anomalous. It was found that in case the Govt, predicated change in system based on the experience gained in the past, no one would come in the way of change and Govt. cannot be faulted for choosing different norms for admissions. It was further observed that "rule pf providing for entrance test is not the rule of eligibility. It relates to concerned. There is no representation that it should not be changed nor the petitioners have changed position to their prejudice."
32. Ordinarily the principles of just ex-pectation as well as the promissory estoppel are invoked where one expects profit or all other advantage: The concept of these principles cannot be made applicable in strict sense to the academic courses particularly in the field of education wherein with the change and advancement of educational needs are fast changing. It is the requirement of the day to keep pace with the fast changing scenario in education. To hold otherwise would be to make the system and society stagnant and the Universities non-functional. The principles of legitimate expectation or equitable estoppel is frenchised phenomenon or substantial facets.
33. In the totality of the circumstances of each case, the nature of the rights of the person involved, contents of the rights claimed, larger aspects or repercussion on the students at large, it has to be tested on the principle, whether the policy introduced is desirable, whether it has resulted in maladministration, any substantial injustice has been caused which demands substitution of the Courts' decision with that of the administrative agencies, whether the right of education was diligently promoted by the policy.
34. The conspectus as it emerged from 1991 (4) JT 548 and AIR 1955 SC 549 is to the effect:-- (i) Admission programme became crucial instrument to promote the excellence of institutions and forms part of administration. It is thus regulatory in nature; (ii) Directions for admission on the basis of entrance test or based on the marks obtained in the qualifying examination to eliminate arbitrariness are those of regulatory in nature, (iii) Standard of education does not form part of management as such. It concerns the body politics of a nation and its Government for considerations of development of the country and its people though it may indirectly affect part of management.
35. Right to select a student for admission is a part of administration rather an important facet of it. Power could be regulated by reasonable regulation and it should be conducive for those who resorted to it. Judging the perfotmance and evaluating the merit is a well known method followed in academic fields particularly when the applicants came from different institutions with different subjects with diverse Standards. Merit judging by percentage of marks secured by the applicants in different qualifying examinations with different subjects and with different standards may not lead to proper and fair selection. It may also not have maintained the re1evant standards of excelience of education. It was observed that the result obtained by a student in the examination held by one University cannot be comparable with the result obtained by another candidate in the examination of another University. Such standards depend on several human factors viz. the method of teaching, examinations and evaluation of the papers even though the subjects taught and examinee may be the same. The result may vary and variations are inevitable. In the premises the admission solely determined by the marks obtained by a student cannot be the best available guide for fair academic performance. The admission programme on the other hand based on entrance test seems to be a better method of selection, than the one based on the marks secured in the qualifying examination.
36. Executive powers are not defined. It docs not mean that executive can function only when law is enacted. It cannotes residual Government functions that remain after the legislative or judicial functions are taken away. Existence of law for executive functions is not a must. It comprises both determination of policy as well as carrying it out into execution and in fact supervision of general administration.
37. In our considered view, as observed above, the petitioners have no vested right for admission. Similarly no promise can be said to have been made by the University that same rules governing admission for B.Com. would continue to apply, which were applicable when the petitioners took the admission. We fail to agree with the observations made that the petitioners joined B.Com. (10+2) group because the rules governing admission to B.Com. (I) course provided that admission would be made taking into consideration, their merit on the basis of marks secured in the eligibility examination and they would not have joined the course if those rules were going to be changed. Similarly, it was not expected that all of them joined 10+2 class with a view to prosecute further studies. Thus, in our considered view, factually there was no promise held out by the respondents nor the petitioners have changed their position to their detriment. Thus, the respondents cannot be held to be estopped from changing the rules on the principle of promissory estoppel.
38. The respondent-University, as already mentioned above, in exercise of its statutory powers determined the procedure for evaluation of the comperative merit of the students. Even otherwise the University in exercise of its executive functions was entitled to determine the procedure for admission when there were large number of students against the limited seats. There cannot be any estoppel against the legislative power of the University. The principles of just expectation as spelled out by the Hon'ble Supreme Court runs as under:--
"This concept of anticipation of tne stu dents is sought to be based on the knowledge of the existing rules and having their expecta tion in anticipation on the same.....a much weaker, to say non-existing legal ground is sought to be made out by this concept of anticipation. It has no legal basis and it cannot stand the test of legality and con sistency."
The principles of just expectation cannot be placed on higher pedestal than the principles of promissory estoppel. In view of the finding that there was no promissory estoppel, the (intentions of the petitioners of 'just expectation' cannot be sustained and if we can venture to state, is misconceived. Mere hardship or sympathy would not entitled the petitioners to invoke principles of either promissory estoppel or of just expectation. Ordinarily these principles being applicable to commercial world of business cannot be extended to the field of education where with the fast development of education, development of inventions, widening of the scientific fields in the administration of sciences. By invoking the above principles the steps taken by the authorities to meet the fast changing ground realities cannot be permitted to be petrified.
39. The contention of the petitioners is that introduction of the subject of biology sciences in the entrance test has neither any nexus to the commerce group nor with the object to be achieved. We find no force in the submission made by the learned counsel for the petitioners for the obvious reasons that since the eligibility conditions for admission to B.Com. (I) provides admission to this course from the stream or groups in 10+2 class including science. The only mode to evaluate the relative merit as presently suggested is the entrance test, taking a subject from almost all the groups. The object is to evaluate the comparative merit amongst the students coming from different groups.
40. The provisions of entrance test for admission to B.Com. (I) and non-provision of similar test for admission to other courses by itself would not result in any discrimination. The mechanism of evaluating the merit of the selecting candidate for admission against the limited number of seats by means of entrance test is only procedural in nature particularly when it is fair and just. Even otherwise, in view of the facts averred by the respondents in the written statement that the entrance test has been provided for admission to various graduation courses in the University like B.Sc. (Honours School) etc., the contention) of non-providing of entrance test to other courses, providing the argument of discrimination cannot be sustained.
41. From reading of the rules reproduced above, it is discernible that the executive functions of the University vest in Syndicate. In view of the law laid down in the judgments referred to above, providing of entrance test is an administrative function within the executive functions of the University. The Senate is only competent to lay down procedure for admission. We may hasten to add that prescribing procedure for admission has neither resulted in amendment of any regulation prescribed by the Senate nor it has brought about any change in the regulation with respect to the eligibility condition. All the eligible students as a matter of right cannpt claim admission because of limited number of seats. Thus, we find that University was fully competent to prescribe the entrance test.
42. Our above view finds support in all aspects by the judgment reported in Lavu Narender Nath's case (supra), AIR 1971 SC 2560 wherein same question i.e. whether entrance test provided for selection of a candidate in four medical colleges run by the State is justified, Hon'ble the Supreme Court taking note of the eligibility conditions provided that one who passes the Higher Secondary study in specified subjects and passed the same with not less than 50% marks and has also passed the qualifying examination. Against the limited number of seats about 5000 students applied. The entrance test was challenged almost on the same grounds as the one in hand i.e. that it is the Academic Council who can prescribe qualification for admission to the degree courses in the University as well as the academic standards. Any other body cannot substitute itself by providing test and academic standards for the candidates seeking admission and (ii) attempts to assess the academic standard different from those provided by the Academic Council of the University is violative of Central subjects. Providing of test is discriminatory and did not provide sufficient time to the students to prepare for the test. Hon'ble the Supreme Court held that Govt. would be competent to prescribe the entrance test itself to screen the best candidates. Mere supplementing the eligibility rules by an entrance test in the subjects in which the candidates were familiar again cannot be impeached nor it can be termed as unfair. Passing of the qualifying examination would not ipso facto make a person entitled for admission if number of candidates seeking admission is more than the seats available. University can make a choice out of the applicants to find out who should be admitted by any mode which it thinks fit i.e. by prescribing another test for it. It was observed that students are necessary to be screened on some reasonable basis. The marks obtained in the eligibility examination makes one eligible to appear in the test which is the last test and determining factor who should be admitted and who should be rejected. Courts are not expected to interfere with the manner or method of making classifications. Merely prescribing the minimum qualifications for admission to higher courses of study and no regulation guaranteeing admission to higher course of study by securing the eligibility, the executive have power to make any regulation which would have the effect of law so long as it does not oppose any legislation already covering the fields and in no way affect the rights of the candidate with regard to the eligibility for admission though entrance test may be a further hurdle. Mere eligibility conditions cannot be made the determining factors for admission.
43. White dealing with the question that some of the questions were not covered by the curriculum of the examinees' syllabi, it was observed that all the candidates were at an equal disadvantage as the questions may have been put to find out whether a candidate's knowledge was limited to syllabi or he was sufficiently interested in the subject so as to acquire knowledge beyond the prescribed curriculum. It was further observed that written test is no substitute to the University examination but it was something in addition to that. The mere fact that it was introduced in 1970 will be no ground that method of selection is invalid.
44. As regards the complaint of notice being short is concerned, it affects everybody equally adversely.
45. For the reasons recorded above, we find no force in the submissions made by the learned counsel for the petitioners. The writ petition is dismissed with no order as to costs.
46. Petition dismissed.