Bombay High Court
Parthsarthi Saraf vs Bar Council Of India Thru Secretwary, ... on 29 October, 2018
Bench: B.R.Gavai, M.S.Karnik
16.17. 18.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 35 OF 2018
WITH
IPA NO. 134 OF 2018
Dipak Kumar Chattopadhyay .. Petitioner
Vs.
State of Maharashtra and ors. .. Respondents
ALONG WITH
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11791 OF 2018
Parthsarthi Saraf .. Petitioner
Vs.
Bar Council of India and ors. .. Respondents
ALONG WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3588 OF 2018
Rohan Manohar and anr. .. Petitioners
Vs.
The University of Mumbai and ors. .. Respondents
Mr.Uday Warunjikar a/w Mr.Abhishek Bhat and Mr.Sachin
Pawar for Petitioner in PIL/35/2018 & for Petitioner in
WP/11791/2018.
Mr.Vishal Kanade a/w Ms.Madhulikha Murthy I/b M/s.Vashi
1/11
::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 :::
16.17. 18.doc
and Vashi, for Petitioners in WPL/3588/2018.
Mr.Abhay Patki, Additional Govt. Pleader for State - Respondent
No. 1 in PIL/35/2018.
Mr.P.M. Palshikar, for Respondents No. 2, 3, 4 & 5 in
PIL/35/2018.
Mr.Rui A. Rodrigues a/w Ms.Rimi Jain & Ms.Geetika Gandhi, for
Respondents No. 1 to 5 in WPL/3588/2018 and for Respondent
No.2 in WP/11791/2018.
Mr.Amit Sale, for Respondents No. 6 & 7 in PIL/35/2018 & for
Respondent No.6 in WPL/3588/2018 and for Respondent No.1
in WP/11791/2018.
Ms.Spardha Sharma h/f Mr.Tushar Goradia a/w Mr.Saurabh
Utangle, for Respondent No.3, in WP/11791/2018.
CORAM : B.R.GAVAI &
M.S.KARNIK, JJ.
DATE : 29th OCTOBER, 2018 P.C. :
. These two Petitions and a Public Interest Litigation challenge the circular issued by the University of Mumbai dated 24/08/2018 vide which the Respondent - University has informed the Principals of the Affiliated Colleges teaching L.L.B (Three Years and Five Years) degree course that the recommendations made by the Board of Studies in law at its 2/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc meeting dated 02/06/2018 have been accepted by the Academic Council at its meeting held on 14/06/2018. It has been further informed that in accordance with the said decision, the Manual with the Rules and Regulations and Schemes and procedures of L.L.B. (3 years) and (B.L.S., L.L.B.) (5 years) for Choice Based Credit System has been brought into force with effect from the academic year 2018-19.
2. The Public Interest Litigation has been filed by the Petitioner who is a part-time lecturer in law College and also a practicing lawyer. Other two Petitions have been filed by the students who are undertaking their studies in the final year LLB examination.
3. Prior to the impugned circular being brought into effect, the Respondent - University was adopting 100 marks written paper system for evaluation of performance of the candidate. However, by the impugned circular, the said system has been changed and new system called as Choice Based Credit System (hereinafter referred to as 'CBCS' for short) has been 3/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc introduced. The University has also published a Manual which gives details about the said scheme.
4. Learned Counsel for the Petitioners as well as Public Interest Litigant would submit that the Petitioners are not principally opposing the said CBCS. It is submitted by learned Counsel for the Petitioners that the objection of the Petitioners is only to a sudden change in the system. It is the submission of the Petitioners that when the Petitioners took admission, it was on the basis of the impression that they would be required to undergo 100 marks written examination. It is submitted that not only that but the Respondent - University by circular dated 07/09/2018 had given an impression that they would be following the same system. However, by the circular dated 21/09/2018, the Respondent - University had directed the Affiliated Colleges to postpone the date of submission of internal assessment to Respondent No.1. It is further submitted that it is only on 04/10/2018, the Respondent - University has published revised examination timetable adhering to CBCS. It is submitted 4/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc that since the Petitioners and most of the students have prepared themselves on the basis of the old system, the said sudden change would act to the detriment of the students at large.
5. It is further the contention of the Petitioners that the changed system provides for internal assessment of 40% of marks whereas 60% of marks are to be allotted for the written examination and that too to be conducted by the Colleges. It is therefore submitted that this sudden change in the system would not only drastically bring down the standards of legal education, but would also lead to arbitrary marking system by different examiners as per their own choice. It is submitted that there are no clearcut guidelines as to how evaluation of internal assessment of 40% marks is to be done.
6. It is further contended that the Bar Council of India has supervisory and final role in the matter of legal education and this sudden change which has a result of adversely affecting 5/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc the academic career of students of legal education, without permission of the Bar Council would not be sustainable in law.
7. Shri Rodrigues learned Counsel for Respondent - University submits that the CBCS system is recognized worldwide not only in legal education but also in all faculties including Engineering & Medical. It is submitted that assessment of the performance of the candidate only on the basis of final written examination, is a thing of bygone era and assessment of a candidate by continuously assessing his performance in the class is what is now in existence worldwide.
8. He submits that the decision of the University is taken after all the concerned bodies including Dean of the Authorities, Board of Studies in law and Academic Council had approved about the same.
9. We are hearing the Petitions only for grant of interim orders. The scope for interference by this Court in academic 6/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc matters is minimal. This Court does not sit in Appeal over the decision of expert academicians in the matter of education and examination. However, that does not mean that when the action of the University does not stand the scrutiny of law, this Court would be powerless to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.
10. No doubt that the aim of the University to bring a dynamic change in the legal education is laudable. The Mallimath Committee in its report on the law education had long back observed that, the legal education which was in practice at that time was nothing else but a factory of producing half baked lawyers. Therefore, every attempt in order to improve the standard of the legal education will have to be appreciated. However, the only question that we ask ourselves is as to whether the same should be permitted during the academic session, when half of the session is already over.
11. Perusal of the list of the dates would reveal that as 7/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc late as 07/09/2018, the Respondent No.5 had issued examination timetable on the basis of 100 marks written examination. No doubt that the impugned circular is dated 24/08/2018 i.e. prior to that. However, it appears that the Respondent - University itself was under confusion as to which system it has to follow.
12. It will also be relevant to refer to clause 5.3 of the CBCS Manual.
5.3.1. Scheme of Examinatino for Undergraduate 3 Years LLB and 5 Years BLS., LLB programme shall be as mentioned below :
The performance of the learners shall be evaluated into two components. The learner's performance shall be assessed by Internal Assessment with 40% marks in the first component by conducting the Semester End Examinations with 60% marks in the second component. The allocation of marks for the Internal Assessment and Semester End Examinations are as shown below :-
a) Internal Assessment - 40% 1 One periodical class test held in the given semester 10 Marks 2 Subject specific Term Work Module/assessment modes 20 Marks as decided by the department in the beginning of the semester (like Extension/(field or experimental work, Short Quiz; Objective test, open book etc and written assignments, Case study, Judgment Analysis, Projects, Papers and exhibits etc as shall be designed by the respective colleges for which the assessed is to be based on class room presentations if so found desirable by the college) to be selflessly assessed by the teacher/s 8/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc concerned.
3 Active participation in routine class instructional 05 Marks deliveries (and in practical work, tutorial, field work, extra/co curricular Activities etc as the case may be) 4 Overall conduct as a responsible learner, mannerism and 05 Marks Articulation and exhibit of leadership qualities in organizing related academic activities.
13. It would be thus seen that out of 40 marks, 10 marks are to be granted on the basis of one periodical class test, 20 marks are to be granted on the basis of subject specific term work Module/assessment modes, as decided by the department in the beginning of the semester etc., 5 marks are to be granted for active participation in routine class instructional deliveries, 5 marks are to be granted for overall conduct as a responsible learner, mannerism and articulation and exhibit of leadership qualities in organizing related academic activities.
14. Undisputedly, the department in the beginning of semester has not taken any decision as required under clause 5.3.1(a)(2). Nothing is also placed on record to indicate that any training was imparted to the teaching faculties, as to in what manner 40 marks are to be assessed. In that view of the 9/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc matter, the possibility of there being total disparity in granting the assessment marks by different faculties in different Colleges cannot be ruled out. It has been admitted in the affidavit filed on behalf of the University that out of 53 Colleges, there are only 43 approved full time teachers available. It is not in dispute that part time faculties are available in multiple of approved faculties. As such, that would amount to leaving the career of the students to the mercy of the faculties which are not trained to do the assessment on the basis of which 40 marks are to be assessed and that to the faculties, vast majority of which consists of part time lecturers. We find that this would not at all be in the interest of the students.
15. In the affidavit filed on behalf of the Respondent - University it has been fairly admitted that this sudden change was done, since in the last year, on account of faulty on-line system, the results could not be declared in time. If the results could not be declared in time, the students cannot be penalised by making them to suddenly shift from 100 marks written 10/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 ::: 16.17. 18.doc examination system to CBCS system.
16. In that view of the matter, though we do not find that the decision of the Respondent - University to change the system is faulty, however, at the same time, we are of the considered view that this shift in the midst of the academic year would cause serious prejudice to the interest of the students, who must have prepared themselves on the basis of the old system.
17. In that view of the matter, by way of ad-interim relief, we direct that there shall be stay to the impugned circular dated 24/08/2018 and that the Respondent - University shall conduct the examination for the academic year 2018-19 as per prevailing system.
Stand over to 26/11/2018.
(M.S.KARNIK, J.) (B.R.GAVAI, J.) 11/11 ::: Uploaded on - 01/11/2018 ::: Downloaded on - 02/11/2018 00:50:04 :::