Bombay High Court
Sanket Mahendrakumar Bhartiya And ... vs The State Of Maharashtra Through Its ... on 19 December, 2024
2024:BHC-AUG:30527-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5830 OF 2024
1) Sanket Mahdendrakumar Bhartiya
Age : 23 years, Occ. Student,
R/o at post, Aurala, Kannad
Dist.Aurangabad.
2) Krushna S/o Balasaheb Chame,
Age : 21 years, Occ :Student,
R/o Mahadevwadi, Latur,
Dist. Latur.
3) Shivraj S/o Kashinath Mokre
Age : 21 years, Occ. Student
R/o Gade Chowk, Eknath nagar,
Dist.Aurangabad.
4) Chaitanya S/o Sanjay Pallawe
Age : 24 years, Occ. Students
R/o Plot No. A-45, Gallli No.6,
Pundlik Nagar, Garkheda Parisar,
Dist. Aurangabad.
5) Ganesh Pandurang Hiwale,
Age : 21 years, Occ. Students
R/o Parbhani,
Tq.Dist.Parbhani
6)Amit Sunil Patil,
Age : 24 years,Occ. Student
R/o. AIP rethare Dharan, Tq.Wala,
Dist.Sangali.
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7)Ashish Amol Mahadik
Age : 23 years, Occ: Students
R/o A/P Islampur, Tq.Walwa,
Dist.Sangli
8) Arpan Hemant Chavan
Age : 22 years, Occ. Student
R/o AIP Punadi, Tq.Palus
Dist.Sangli.
9) Santoshkumar Raghunath Patil
Age : 39 years, Occ. Students
R/o AIP Punadi, Tq.Palus
Dist.Sangli.
10) Irtaza Hussian Faruk Ssakheblal
Age : 22 years, Occ. Student
R/o Plot No.2, Mumtaz Nagar, Puntha Naka,
Tq.Dist. Solapur.
11) Harshvardhan Vinayak Dhawane
Age : 21 years, Occ. Student
R/o Plot No. 120, Laxmi Nagar,
Garkheda Parisar, Soot Girni Chowk,
Aurangabad.
12) Zuber Mahemoob Himone
Age : 21 years, Occ. Student
At Post Hotgi Station,
Tq. South Solapur, Dist.Solapur.
13) Sahil Sunil Chavan
Age : 22 years, Occ. Students
R/o. At Khumpur Post. Ozerde, Tq.Wai
Dist.Satara.
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14) Prathmesh S/o Deepak Warang
Age : 22 years, Occ. Student
R/o. Shri Akeri, Sawantwadi
Dist Sindhudurg.
15) Ansari Mohd Arafat Iqbal
Age : 21 years, Occ. Student
R/o Kadrabad Plot, Near Civil Hospital,
Parbhani, Tq.Dist.Parbhani.
16) Rakesh Anilkumar Patil
Age : 22 years, Occ. Student
R/o. Narmada Park, Mangalwedha,
Tq.Mangalwedha Dist.Solapur. ....Petitioners
Versus
1) The State of Maharashtra
Through its Principal Secretary,
Department of Higher and Technical Education,
Mantralaya, Mumbai.
2) Dr. Babasaheb Ambedkar Technological University,
Through its Vice Chancellor,
Lonere, Tal-Mangaon, Dist. Raigad.
Maharashtra (India).402103
3) The Registrar
Dr. Babasaheb Ambedkar Technological University
Lonere, Tal-Mangaon, Dist. Raigad.
Maharashtra (India).402103
4) The Controller of Examinations
Dr. Babasaheb Ambedkar Technological University,
Through its Vice Chancellor,
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Lonere, Tal-Mangaon, Dist. Raigad.
Maharashtra (India).402103
5) Hitech Institute of Technology, Aurangabad,
Through its Principal,
P-119, Bajaj Nagar, MIDC, Waluj,
Aurangabad-431136 ...Respondents
...
Advocate for the Petitioners : Mr. P.D.Jarare
AGP for Respondent No. 1 : Mr. S.K.Tambe
Advocate for Respondent Nos. 2 to 4 : Mr. Avinash R.Borulkar
Advocate for Respondent No. 5 :Mr. R.R.Shinde
h/f Mr. Sambhaji S.Tope
...
CORAM : S.G.MEHARE &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 09 DECEMBER 2024
PRONOUNCED ON : 19 DECEMBER 2024
JUDGMENT [ Per Shailesh P. Brahme, J. ] :
. Rule. Rule is made returnable forthwith with the consent
of the parties.
2. Heard both sides finally at the admission stage considering
exigency in the matter.
3. Petitioners the students of Computer Science and the
Engineering faculty have approached this Court for direction to
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conduct remedial examination for odd and even semesters and
they are consequently questioning the notification dated
27.03.2024 of the respondent/University discontinuing remedial
examination for the engineering students except for those
appearing for final year examination.
4. The petitioners are taking education in the different
colleges/technological institutions including the respondent no.5
which are affiliated to respondent no.2 Dr. Babasaheb Ambedkar
Technological University. They had appeared for winter 2023
examination. However could not clear few subjects. They wanted
to appear for remedial examination, but the
respondent/university did not arrange it. Surprisingly
supplementary examination was declared to be scheduled on
12.06.2024. The respondent/university issued notification dated
27.03.2024 and proposed to conduct remedial examination for
the final year students only. They are deprived of the remedial
examination which is in the nature of Multiple Choice questions
(MCQ's). It is the cause for them to approach High Court.
5. Both parties are relying on The First Rules and Regulations
of 2016 (hereinafter referred to as 'Rules of 2016'), Dr.
Babasaheb Ambedkar Technological University Act of 2014 (In
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short 'Act' of 2014) and Statutes for Constitution, Appointment,
Powers and Duties of the officers of the university ( in short
'Statutes')
6. It is the case of the petitioners that Rules of 2016 were in
force which were founded on decision of academic council dated
23.12.2016. These rules provided for remedical examination.
Even statutes also provided for remedial examination vide
Statutes S2.1d, S2.28 and 2(e) Upto winter-2023, respondents
were regularly conducting the remedial examinations. The
perspective plan also provides for policy of the remedial
examination. There was wide and open publicity and
representation for the remedial examination. But abruptly
banking upon notification dated 27.03.2024. The
respondent/university decided not to go for remedial
examination.
7. Learned Counsel for the petitioners submits that a long
standing practice of conducting remedial examination has been
discontinued midway without any prior intimation. The decision
in question amounts to change of rules retrospectively. Hence it
is arbitrary. The petitioners were all the while represented that
till their completion of the courses, facility of remedial
examination would be available. The remedial examination is
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their legitimate expectation.
8. Learned Counsel submits that the impugned decision based
on the notification dated 27.03.2024 has no sanctity of law.
After coming into force of the Statutes, the practice of
conducting remedial examination continued which can be
reflected from notification dated 26.10.2023. The perspective
plan of the University from 2020-2025 also reflects remedial
examination. Without following any procedure, the decision in
question has been taken by the university. The special
supplementary examination proposed by communication dated
25.09.24 awaits assent from Vice-Chacellor.
9. Learned Counsel for the petitioner relies on the judgment
of Army Welfare Education Society New Delhi Vs. Sunil Kumar
Sharma and Others reported in 2024 SCC Online SC 1683.
10. Per contra, Mr. Avinash Borulkar, learned counsel
appearing for Respondent no. 2 to 4 places reliance on the
affidavit-in-reply to advance his submission. He would submit
that the provision for remedial examination in Rules of 2016 has
no sanctity of law. The approval of Chancellor as per Section 43
of the Act was not obtained. The proposal to that effect was
submitted on 20.07.2023 but it is still awaited. He would submit
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that Statute S3.52 1-g empowers Board of Examinations to
reform the pattern of examination or to evaluate the same for
more efficiency. Under the powers conferred under the Act and
the Statutes, the Academic Council proposed the changes in the
remedial examination from Winter-2023. Thus the notification
dated 27.03.2024 was issued and relying on the same impugned
decision has taken by the University.
11. Learned Counsel Mr. Borulkar vehemently submits that it
is the prerogative and the wisdom of the respondent/university
to change the pattern and eliminate remedial examinations. The
experts have found it fit not to resort to M.C.Q. type
examination for the engineering students. He would submit that
no right is conferred upon petitioner to insist for remedial
examination. The University has provided alternative special
supplementary examination to them. He relies on the judgment
of Hon'ble Supreme Court Indian Institute of Technology and
Others vs. Sourtik Sarangi and Others reported in (2021) 17 SCC
79.
12. The petitioners are the students of engineering/computer
science faculty from first year to third year. They are undergoing
the under graduation since prior to 2023. The Rules of 2016
were provided for the remedial examination.
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13. The perspective plan of the University for 2022-25 refers
to the remedial examination. The Joint Directors would be
responsible for online examination for remedial examination.
Following is the purport which can be gathered from perspective
plan.
Remedial Examination
It is unlikely that all students shall pass the examination in one go. There is
small section of students who find it difficult to pas s the examination. They
have difficulty to clear the tests and many cannot cope with the pressure of
expectations. Since the examinations are conducted only at the end of semesters,
some of the students may lost out on the time and most importantly, they
cannot concentrate on the next semester courses because of backlog. It is
proposed that such students shall be given supplementary examinations which
shall be conducted online in the form of objective type multiple choice questions.
The students appearing for the supplementary test and scoring minimum 40% in
the test shall get pass grade in the subject. This will reduce substantially the
number of students with backlog and ATKT. Those who cannot clear the
supplementary examination, will have to appear the semester examination in the
said subject a year later.
14. In the third meeting of the Academic Council held on
23.12.2016 resolution no. 7.6 was passed approving remedial
examination for the weaker students which is as follows :
6.1 A A proposal for special Remedial Examination was proposed from the next
academic year 2017-18 for the students who fail to pass regular examination
with an intention to provide an immediate opportunity to clear the backlog
courses and to take the admission in higher semester without wasting a year.
The nature of the proposed remedial examination will be Multiple Choice
Question (MCQ) preferably conducted in online mode to avoid delays caused in
paper-based mode of evaluation. The proposed examination will be conducted
for full syllabus with similar difficulty level as that of regular examination.
Students securing above 40% marks will be declared as passed in the same
subject and will be awarded only Pass grade irrespective of the marks scored
above 40% level. The proposed examination will be an optional examination
and students may opt either MCQ based remedial examination with Pass grade
or a regular examination to be conducted in the subsequent year.
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After detailed deliberation, the Council approved the proposal with the
following.
6.1.1 Instead of PP grade students be offered minimum passing grade.
6.1.2 Student's internal assessment will be null and void and he has to earn
40% marks in objective test alone.
6.1.3 If student has to improve grade, s/he has to appear for regular
examination.
The Council resolved that the above item be confirmed with the above
suggestions.
6.2A A proposal was put to the Academic Council to use 'Not Cleared (NC)
phrase instead of 'Fail(F)' in a subject to avoid psychological pressure and
social stigma to the students who fail to clear a subject. The Council resolved
to accept the proposal and approved the same.
15. Banking upon above resolution, the provision was made in
Rule 2 of 2016 which is as follows :
(6)Remedial Examination
The candidate will have an option of appearing for an Online Remedial Examination,
after the declaration of each End-semester examination results, to pass the subject head
where he/she has failed in regular end-semester examination of the semester. The
candidate will get only EE grade if he clears the remedial examination and can continue
with the next semester. However, for improving his grade in the same subject head, the
candidate will have an option of appearing in the 'same' subject in the Supplementary
Examination before the regular end-Semester examination.
16. The respondent/University has been conducting remedial
examination since the petitioners commenced their under
graduation upto winter-2023. Pertinently after introducing the
Statutes the practice continued. To corroborate this the petitioner
has rightly referred to the Letter dated 26.10.2023, Notification
dated 12.10.2023, the resolutions, examination fees semesters
grade reports and the hall tickets.
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17. The petitioners have been represented that there is a
facility of remedial examination by the University through
perspective plan as well as Educational institutions. Statutes 2.20
a (d) and 2.28 provide for Powers, Duties of Director and that
of Joint Directors,respectively. That discloses the power of
conducting online remedial examination. Thus there is consistent
and long standing practice being followed by the
respondent/university for conducting remedial examination. The
petitioners relied on the facility of remedial examination.
18. The University is estopped from contending that it was
without the approval of the Chancellor as contemplated by
Section 43of the Statutes or there was no sanctity of law. It has
not been explained by the University as to how it indulged into
conducting remedial examinations if there was no approval or
when the proposal for approval was awaiting. No steps have
been taken by the officers of the university to solicit the
approval of the Chancellor. It is not open for the University to
turn round and challenge its own rules of 2016 for remedial
examination.
19. The provisions made in Statutes 2.20,2.28 corroborate the
contention of the petitioner that there existed practice of
conducting remedial examination. The Rules of 2016 providing
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for remedial examination de facto were governing the field till
its discontinuation. We do not approve the submission of learned
counsel for the respondent that those rules have no sanctity of
law or for want of approval.
20. The facility of online remedial examination stands
discontinued after winter-2023 examination. The petitioners are
deprived of the facility which has been in force since the
commencement of their under graduation. We do not find that
the discontinuation is with effect from any future date so as to
have the students concerned intimation in advance. Learned
Counsel for the petitioner is right in contending that there is a
legitimate expectation of the petitioner that they would get the
facility of remedial examination. He relies on the judgment of
Army Welfare Education Society (supra). The ratio laid down in
following paragraphs is aptly applicable to the case in hand.
46. In Trigun Chand Thakur v. State of Bihar , reported in (2019) 7 SCC 513, this Court upheld the view
of a Division Bench of the Patna High Court which held that a teacher of privately managed school, even
though financially aided by the State Government or the Board, cannot maintain a writ petition against an
order of termination from service passed by the Management.
47. In Satimbla Sharma (supra), this Court held that the unaided private minority schools over which the
Government has no administrative control because of their autonomy under Article 30(1) of the
Constitution are not "State" within the meaning of Article 12 of the Constitution. As the right to equality
under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided
private minority private schools.
48. The Full Bench of the Allahabad High Court in Roychan Abraham v. State of U.P., AIR 2019 All 96,
after taking into consideration various decisions of this Court, held as under:-
"38. Even if it be assumed that an educational institution is imparting public duty, the act
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complained of must have direct nexus with the discharge of public duty. It is undisputedly a public
law action which Civil Appeals @ SLP (C) Nos. 3138-3141/2021 & 3133-3137/2021 confers a
right upon the aggrieved to invoke extraordinary writ jurisdiction under Article 226 for a
prerogative writ. Individual wrongs or breach of mutual contracts without having any public
element as its integral part cannot be rectified through petition under Article 226. Wherever
Courts have intervened in exercise of jurisdiction under Article 226, either the service conditions
were regulated by statutory provisions or the employer had the status of "State" within the
expansive definition under Article 12 or it was found that the action complained of has public law
element." (Emphasis supplied).
21. Our attention is adverted by learned counsel Mr. Borulkar
to Statutes 3.52 to make out a case that power vest with the
Board of Examination. He refers to following relevant provision
of Statute for Constitution, Qualifications, Appointment, Powers
and Duties of Officers of The University which is as follows :
S3.52 Powers and duties of the Board of Examinations
g) to undertake examination and evaluation reforms in order to make examination and
evaluation system more efficient.
22. There is no dispute that the respondent/university and its
authorities are sole repositories of evaluation reforms in
conducting the examinations. The objection is to the manner in
which the decision has been taken. The power of discontinuing
remedial examination has been misused. The contention of the
Mr. Borulkar that M.C.Q. would not be proper to judge an
Engineering student and therefore conscious decision has been
taken cannot be accepted for the reason that the time and the
mannerism are not in consonance with fair play and principles
of equality. The long standing practice can be done away with
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only by following due procedure of law which is lacking.
23. The special supplementary examination scheduled on
12.12.2024 cannot be substituted to the remedial examination.
The respondent/University can resort to due procedure for
discontinuing the remedial examination.
24. Learned Counsel Mr. Borulkar relies on the judgment of
Indian Institute of Technology (supra) and more specifically
paragraph no. 21. to buttress the submission that the judicial
review in the educational matters has very limited scope.
Learned Single Judge of the High Court interfered with the
decision of the educational institution by permitting the student
to register for Joint Entrance Examination and to appear for the
same. It was held by Supreme Court that there was no
arbitrariness in the decision of the educational institutions. In
the said backdrop, the observations in paragraph no. 21 to 24
were recorded. The facts of the case before the Supreme Court
are distinguishable from present case. We have already recorded
that in the case at hand, we find arbitrariness and denial of
legitimate expectation, on the face of record. Hence this
judgment would not assist the respondent.
25. For the aforementioned reasons, we allow the Writ Petition
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by directing the respondent to conduct the remedial
examination. We therefore pass following order :
ORDER
i) The respondent no.2 to 4 shall conduct remedial examination of odd as well as even semesters of the students including the petitioners who were admitted prior to Academic year 2024 by taking necessary steps.
ii) They shall permit the petitioners and the eligible students to appear for the remedial examination.
iii) It is clarified that we have not taken away the powers of the Competent Authority to make the amendments or change the examination pattern prospectively.
iv) Rule is made absolute in above terms.
[ SHAILESH P. BRAHME, J.] [ S. G. MEHARE, J.] V.S.J.