Calcutta High Court (Appellete Side)
Parimal Mistry vs The Union Of India & Ors on 27 January, 2020
02 27.01.2020
Ct. No.16 pg.
IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE MAT 1569 of 2019 with CAN 855 of 2020 with CAN 10528 of 2019 Parimal Mistry Vs. The Union of India & Ors.
Mr. Parimal Mistry ... Appellant/applicant in-person Mr. Partha Ghosh Ms. Purabi Saha Das ... For Union of India Mr. Anil Kumar Gupta ... For the University Grants Commission Ms. Nandini Mitra Ms. Sreyashi Chatterjee ... For the Association of Indian University Re: CAN 855 of 2020 There is a delay of 3 days in preferring the appeal. We are satisfied with the explanations offered for not being able to file the memorandum of appeal within the period of limitation.
On such consideration, the delay of 3 days in filing the memorandum of appeal is condoned.
2CAN 855 of 2020 is allowed.
Re: MAT 1569 of 2019 with CAN 10528 of 2019 This appeal is directed against an order passed by the learned Single Judge dated 13th September, 2019 in a writ petition filed by the appellant for declaration that 59 per cent marks obtained by the petitioner from the National School of Drama is equivalent to upper 60 per cent marks in Master Degree from other universities in India under the University Grants Commission, MHRD (hereinafter referred to as 'UGC'). The petitioner also claimed other reliefs, but we feel that if the aforesaid relief is allowed, the other reliefs would be consequential.
The writ petition has a chequered history. Initially, the writ petitioner preferred a writ application challenging the recruitment process for the post of Assistant Profession of Drama in respect of Visva Bharati University, Santiniketan. The challenge was thrown in view of Visva Bharati authority declining to accept the contention of the writ petitioner that he has a first class diploma from National School of Drama and he had five years of required acclaimed performance in regional and national stage. In the said writ petition, one of the issues cropped up with regard to the relaxation of five per cent 3 marks in order to bestow upon the petitioner the benefit of first class degree. The said writ petition was dismissed by Justice Debangsu Basak by relying upon a Division Bench judgment dated 2nd December, 2015 in MAT 1548 of 2015 (Parimal Mistry & Ors. vs. Visva-Bharati, Santiniketan & Ors.) in which the said issue was gone into and decided against the writ petitioner. The relevant portion of the said Division Bench judgment is quoted below:-
"The writ petitioner appearing in person did not dispute that he is not possessed of the first class degree/diploma from the National School of Drama, but he contended that he is entitled to relaxation of 5% marks and in support of his submission he drew our attention to the following provisions appearing from the advertisement itself:-
"Qualification and experience may be relaxed at the discretion of the University Relaxation in age and percentage of marks will be allowed, as per rules, to candidates belonging to reserved categories.
5% relaxation in marks (from 55% to 50%) may be provided to Ph.D Degree holders, who obtained Master's Degree prior to 19 September, 1994."4
We have not been impressed by the submission advanced by the writ petitioner appearing in person for the following reasons.
The writ petitioner has aspired not on the basis of conventional education but on the basis of the degree obtained by him from the National School of Drama. Before he could apply on that basis he was required to have a first class degree which the writ petitioner admittedly did not have. On the top of that relaxation could not be claimed by him as a matter of right which depended upon the discretion of the University and they must be deemed to have chosen to refuse to exercise discretion in his favour. It was not pointed out nor demonstrated that the discretion was not exercised along sound principles of justice in the facts and circumstances of the case.
There are two types of eligibility: (a) conventional
(b) non-conventional. The writ petitioner claims eligibility on the basis of non-conventional education. In that case he cannot hope to be judged by the standard of 55% laid down for conventional education. On the top of that the writ petitioner did not have consistently good academic record."
The said order of the Division Bench was unsuccessfully challenged before the Hon'ble Apex Court. The Special Leave Petition was dismissed on 4th September, 2017. A review petition was also dismissed on 28th November, 2017. The writ petitioner this time filed a writ petition claiming 5 declaration as stated above. The learned Single Judge relying upon the order dated 6th June, 2016, denied the relief and disposed of the writ petition with an observation that in the event the appeal preferred by the writ petitioner against the judgment and order dated 6th June, 2016 passed in WP 22638 (W) of 2015 is allowed, the writ petitioner may file a fresh writ application. A coordinate Bench in FMA 2684 of 2016, being an appeal preferred against the order dated 6th June, 2016, adjourned the hearing of the appeal sine die in view of pendency of the Special Leave Petition before the Hon'ble Supreme Court arising out of the order dated 2nd December, 2015 passed in MAT 1548 of 2015.
It cannot be doubted that the success of this writ application is based on a decision of the Hon'ble Supreme Court in the Special Leave Petition in which one of the issues ought to have been decided is with regard to the declaration that 59 per cent marks obtained by the petitioner from the National School of Drama is equivalent to upper 60 per cent marks in Master Degree from other universities. The writ petitioner this time came with the aforesaid innocuous prayer for a fresh consideration after the said issue attained finality. In fact, the National School of Drama has produced before us a copy of the Guidelines for Under-Graduate Courses in 6 Semester Mode dated 5th September, 2011 which clearly states that a student obtaining 60 per cent or more shall be categorised in the first division and 50 per cent or more but less than 60 per cent shall be categorised in the second division.
The National School of Drama in its circular dated 20th July, 2004 has observed "in relation to the scoring system" as follows:-
"Explanation of the Scoring System:
The student is evaluated for each subject taking into account her/his performance average in the class assessment and the semester examination NSD does not adopt the grading system."
On the teeth of this circulars coupled with the order alluded to above, the statement made by the appellant based on the UGC's regulation dated 30th June, 2010 on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010, clause 4.4.2.2.1 read with clause 5 regarding Percentage Equivalence of Grade Points for a Seven Points Scale cannot be said to be applicable.
7
On such consideration, we do not find any merit in the instant matter. The appeal and the application stand dismissed.
However, there shall be no order as to costs. (Saugata Bhattacharyya, J.) (Soumen Sen, J.)