Rajasthan High Court - Jodhpur
Ankita Siyal vs Dr. S.R.R.A. Uni. And Ors on 18 February, 2019
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 4423/2015
Ankita Siyal D/o Fateh Lal Siyal W/o Prince Pamecha, aged about
29 years, R/o 29, Manwa Khera Road, Trimurti Complex, Hiran
Magri, Sector-4, Udaipur, Rajasthan.
----Petitioner
Versus
1. Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University,
Kadwad, Jodhpur-Nagaur Highway Road, Jodhpur (Raj.) through
the Registrar.
2. Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved
University, Kadwad, Jodhpur-Nagaur Highway Road, Jodhpur
(Raj.)
3. Manisha Tiwari D/o Shri Narayan Tiwari, age about Major,
address through the Principal, Shri Ganganagar Ayurved College
of Science, Hanumangarh Road, RIICO Bus Stand, Shri
Ganganagar, Rajasthan.
4. Diksha Khaturiya D/o Shri Vinod Khaturiya, aged about Major,
address through the Director, National Institute of Ayurved,
Jaipur, Rajasthan.
----Respondent
For Petitioner(s) : Dr. Nikhil Dungawat.
For Respondent(s) : Mr. Sundeep Bhandawat, for
respondents No.1 & 2.
None present for respondents No.3 & 4
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Judgment (Per Hon'ble Mehta J.) 18th February, 2019 By way of the instant writ petition, the petitioner has questioned the validity of Ordinance 25.A (11) of the Ordinances of the Rajasthan Ayurved University, Jodhpur (herienafter referred to as the 'University Ordinance').
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(2 of 10) [CW-4423/2015] The facts relevant for the present purpose are that the petitioner completed her five year decree course of Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.) in the year 2011, from National Institute of Ayurved, Jaipur. The examination and course was conducted by Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Jodhpur (hereinafter referred to 'respondent- University').
Being dissatisfied with the marks awarded to her, she applied for re-evaluation and her total marks in the three years' course were increased to 3544, as against the total marks (3512) she secured in the initial result declared by the respondent-University.
No sooner had the petitioner learnt that in the forthcoming convocation of the respondent-University scheduled on 25/26-4- 2015, she had not been invited to receive silver medal despite having secured 3544 marks, than she showed her concern vide email dated 16.04.2015, addressed to the University. The petitioner pointed out that why Manisha Tiwari, who obtained lesser marks than her (3528 marks) had been invited to receive silver medal in preference to her ?
The petitioner later learnt that though after revision of marks, the petitioner was ahead of Manisha Tiwari, but the respondent-University refused to change the merit list and decided to award silver medal to her, in wake of the provision contained in Ordinance 25.A(11) of the University Ordinance, published on 14.05.2010, which reads thus :
"25.A (11) - The increase in marks obtained by a candidate as a result of re-evaluation shall not be taken into account for preparing the merit list of the (Downloaded on 04/06/2021 at 11:41:27 PM) (3 of 10) [CW-4423/2015] first 10 candidates standing in order of merit at an examination."
Feeling aggrieved of the action of the respondent-University in not declaring her to be second in the merit list, despite upward revision of her marks and refusing to confer upon her the silver medal, the aggrieved petitioner has approached this Court, challenging validity of the Ordinance 25.A(11) of the University Ordinance, alleging it to be arbitrary.
Mr. Nikhil Dungawat, learned counsel for the petitioner assailing the validity of the contentious provision contained in Ordinance 25.A(11) contended that it is per-se illegal, arbitrary and thus violative of Article 14 of the Constitution of India, inasmuch as a student cannot be denied the due and full benefit of revision of his marks, in the guise of a provision framed by the University. He emphasised that the revision of upward marks should relate back to the main result and the petitioner cannot be made to suffer for the fault of the respondent-University.
While advancing his arguments further, Mr. Nikhil Dungawat informed that the respondent-University has realised its mistake and amended the Ordinance in the manner that the revision of marks shall be considered for preparation of merit also. But he, however, pointed out that the amendment brought into the effect by the respondent-University will not do complete justice, inasmuch as the same shall be prospective in nature and the petitioner, who had cleared the examination in the year 2011, shall not be given benefit of the amendment.
Mr. Sundeep Bhandawat, learned counsel for the respondent- University submitted that the petitioner's case is required to be decided in light of the provisions as were in vogue on the date of (Downloaded on 04/06/2021 at 11:41:27 PM) (4 of 10) [CW-4423/2015] applying for re-evaluation. He submitted that re-evaluation cannot be sought as a matter of right and the University can provide opportunity/facility of re-evaluation, subject to some conditions or exceptions. He argued that Ordinance 25.A(11) of the University Ordinance clearly stipulates that upward revision of marks shall not affect the merit position of first ten candidates and as such the petitioner having applied for re-evaluation cannot claim merit position No.2, in the teeth of Ordinance 25.A(11) of the University Ordinance.
We have heard learned counsel for the parties. We are, rather, surprised to come across the provision like the one, contained in Ordinance 25.A(11) of the University Ordinance. The impugned provision stipulating that the result of re-evaluation shall not be reckoned for preparation of merit list of ten candidates, is arbitrary on the face of it. The respondent- University having provided for re-evaluation cannot string a condition like the one, contained in Ordinance 25.A(11). A re- evaluation has to relate back to a candidate's original evaluation and should be given its fullest effect.
Having found that the provision contained in Ordinance
25.A(11) of the University Ordinance to be arbitrary, we now embark upon to examine the question as to whether a provision enacted by the Parliament, State Legislature or a subordinate legislature can be declared unconstitutional, solely on the ground of being arbitrary.
It is by far settled that all State acts and actions, executive or administrative, have to clear the test of reasonableness and fairness. But the core question which arises for our consideration is, as to whether a Legislative act of the rule making authority is (Downloaded on 04/06/2021 at 11:41:27 PM) (5 of 10) [CW-4423/2015] also required to conform to the test of reasonableness ? Or in other words can regulations incorporated by the University be declared unconstitutional, if the Court comes to the conclusion that the same suffers from the vice of arbitrariness.
To begin with the deliberation, we are reminded of the judgment of Hon'ble the Supreme Court rendered in the case of E. P. Royappa Vs. State of Tamilnadu reported in (1974) 4 SCC 3, wherein it has been observed thus :
"85.......The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the Rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."(Downloaded on 04/06/2021 at 11:41:27 PM)
(6 of 10) [CW-4423/2015] It is pertinent to note that Hon'ble Supreme Court in the case of State of A. P. Vs. McDowell & Co. reported in (1996) 3 SCC 709 has held that an Act cannot be struck down on the ground of arbitrariness . The three Judge Bench of Hon'ble Supreme Court has held as follows :
"43. ... The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground....No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom."
The question was, therefore, still open till the authoritative pronouncement by Hon'ble Supreme Court in a rather recent case of Shayara Bano Vs. Union of India reported in (2017) 9 SCC 1. In the judgment aforesaid their Lordships have held that arbitrariness in the sense of manifest arbitrariness would apply to negate legislation as well. It would be apt to reproduce the relevant part of the judgment, being paras Nos.101, 102 & 104 :
"101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) (Downloaded on 04/06/2021 at 11:41:27 PM) (7 of 10) [CW-4423/2015] Ltd. v. Union of India, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge Under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation Under Article 14. The test of manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.
102. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee's book, the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God.
104. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad, such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer (Downloaded on 04/06/2021 at 11:41:27 PM) (8 of 10) [CW-4423/2015] holds good after Shamim Ara. This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained Under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him."
In view of the above, once an Act promulgated by Parliament or State Legislature can be struck down, if the same is found to be manifestly irrational or arbitrary, we see no impediment in declaring a subordinate legislature to be unconstitutional, if it is arbitrary or irrational.
Apart from being arbitrary, we note that the Ordinance 25.A (11) of the University Ordinance creates a class amongst a class. Denial of benefit of re-evaluation to the first ten meritorious students, is carving out a separate class in itself. There is no reasonable nexus, rationale or intelligible criteria, much less object sought to be achieved in creating such class. Denial of the due benefit and consequential refusal to revise the merit position (Downloaded on 04/06/2021 at 11:41:27 PM) (9 of 10) [CW-4423/2015] of first ten meritorious candidates can clear no test of reasonableness or prudence.
No reason is forth coming as to why should a student securing merit position be denied the fruits of the upward revision of his/her result. The Ordinance 25.A(11) of the University Ordinance, perse results in a hostile discrimination to the students securing higher merit position vis-a-vis the other students who lagged behind.
By virtue of Ordinance 25.A(11), the respondent-University has enacted a provision as per its own accord, which serves no public good or cause. The same is based on the whims of the University administration and is arbitrary and irrational on the face of it. Impugned provision fails the test of reasonableness and fairness, on the anvil of Article 14 of the Constitution of India.
The respondent-University has, of late realised its mistake and seems to have revisited the offending provision contained in Ordinance 25.A(11) of the University Ordinance, and has recommended amendment therein.
Be that as it may, according to us, the impugned provision contained in Ordinance 25.A(11) of the University Ordinance is both arbitrary and discriminatory, falling foul to Article 14 of the Constitution of India. Hence, we declare Ordinance 25.A(11) of the Ordinances of the Rajasthan Ayurved University, Jodhpur to be violative of Article 14 of the Constitution of India and strike it down.
As a result of declaration of the provision contained in Ordinance 25.A(11) of the University Ordinance to be unconstitutional, the petitioner shall be entitled to be awarded (Downloaded on 04/06/2021 at 11:41:27 PM) (10 of 10) [CW-4423/2015] merit in accordance with her revised result, reckoning her marks to be 3544.
Manisha Tiwari and Diksha Khaturiya, originally securing second and third rank in the subject examination, despite having been arrayed as a party respondents, have chosen not to appear despite notice.
In the facts noticed above, we declare the petitioner to be second in the merit list for the Batch 2006. The respondent- University is directed to award certificate of merit as well as silver medal to the petitioner, within a period of four weeks from today. The respondent-University may, however, take the silver medal/bronze medal back from respondents No.3 & 4, if so desired.
The writ petition is allowed.
(DINESH MEHTA),J (SANGEET LODHA),J
67-A.Arora/-
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