Delhi High Court
Major Amandeep Singh vs University Of Delhi And Anr on 4 August, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th August, 2015.
+ W.P.(C) 9320/2014 & CMs No.21112/2014 (for directions) &
4122/2015 (of respondent DU for condonation of 6 days delay in
filing counter affidavit)
MAJOR AMANDEEP SINGH ..... Petitioner
Through: Mr. Baldev Raj and Ms. Shikha Tyagi,
Advs.
Versus
UNIVERSITY OF DELHI & ANR ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for DU
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the refusal of the respondents No.1&2
University of Delhi of permission to the petitioner to take supplementary
examination in the subject of Jurisprudence-II of VIth term Bachelor of Law
(LLB) Programme and seeks a mandamus to the respondents University of
Delhi and its Examination Branch to allow the petitioner to take the said
examination.
2. Notice of the petition was issued and the respondents University has
filed a counter affidavit. The counsels were heard on 28 th July, 2015 and
judgment reserved.
W.P.(C) No.9320/2014 Page 1 of 16
3. It is the case of the petitioner:
(i) that he joined LLB course of the respondents University in the
year 2002 and completed the First and Second Year thereof and
appeared in the Vth term examination in December, 2004;
(ii) that he joined the Indian Military Academy, Dehradun,
Uttarakhand in January, 2005 and thus could not attend the classes of
VIth and last term of the LLB course;
(iii) that in January, 2013, he sought posting to Delhi in order to
complete his LLB degree and was posted to Delhi with effect from
27th February, 2013;
(iv) that he thereafter sought permission from the respondents
University to, notwithstanding the time gap aforesaid, allow him to
take the supplementary examination in one of the subjects of Vth term
which he, in the examination of December, 2004 had failed to pass
and to re-admit him in VIth term to enable him to complete the LLB
degree.
4. I may at this stage state that though the Delhi University Act, 1922,
the Statutes and the Ordinances issued thereunder prescribe a "span period"
i.e. the maximum period in which the various courses / programmers offered
W.P.(C) No.9320/2014 Page 2 of 16
by the respondents University are to be completed and the span period
provided for completing the three years LLB course is of six years but the
respondents University since 1975 had been following the practise of, on
case to case basis, allowing a "special chance" to the students who were
unable to complete the course / programme undertaken by him / her within
the span period provided therefor, to appear in the examination thereafter
also. However, the respondents University vide Notification dated 10 th
October, 2012 notified that no applications for grant of special chance
beyond the stipulated span period would be entertained thereafter and that
the students will have to complete their course of study within the span
periods prescribed for the courses concerned.
5. The span period of six years in which the petitioner was to complete
his three years LLB course had lapsed in 2008 and in accordance with the
Notification dated 10th October, 2012 supra, the petitioner was not entitled to
any special chance.
6. The respondents University however vide another Notification dated
14th March, 2013 i.e. in or about the time the petitioner had applied as
aforesaid for waiver of time gap, purely as a one time measure, allowed the
students to submit their applications for grant of special chance to enable
W.P.(C) No.9320/2014 Page 3 of 16
them to appear in their backlog papers.
7. The request aforesaid of the petitioner was also considered under
Notification dated 14th March, 2013 supra and the petitioner was, vide letter
dated 25th April, 2013, accorded permission to appear in the examination of
the remaining paper of the Vth term and as well as the examination in the five
papers of the VIth term.
8. In accordance with the permission aforesaid, the petitioner appeared in
the Vth term supplementary examination and cleared the Vth term.
9. The petitioner in January, 2014 approached the respondents University
and was granted re-admission in the VIth term of the LLB course, as a regular
student and attended the classes thereof from January, 2014 to May, 2014
and appeared in the VIth term examination conducted in May, 2014.
However, in the result declared of the said examination, the petitioner was
able to pass the examination in only four out of five papers of the VIth term.
The petitioner thereafter sought permission to appear in the supplementary
examination of the remaining paper of the VIth term i.e. Jurisprudence-II
scheduled on 20th August, 2014. Upon being denied permission therefor and
upon his representations not meeting with any success, the petitioner in or
about November / December, 2014 instituted this petition.
W.P.(C) No.9320/2014 Page 4 of 16
10. The respondents University has opposed the petition contending that
under the Notification dated 14th March, 2013 and the permission thereunder
granted to the petitioner vide letter dated 25th April, 2013, the petitioner was,
by way of a special chance, entitled to only one opportunity to pass the
examination and having been unable to pass the examination in one of the
papers of the VIth term, is not entitled to any further chance.
11. I may in this regard reproduce herein below the letter dated 25th April,
2013, vide which the petitioner was granted the special chance and in
pursuance to which he appeared in the examination of the remaining paper of
the Vth term and in the examination of the five papers of the VI th term; the
same is as under:
"Dear Student,
This is further to your application seeking
Special Chance beyond span period. You are advised
to contact the Examination Branch North Campus
immediately for further action. Please note this is the
last Special Chance. In case you do not appear or fail
in any paper (Theory, Practical, Subsidiary,
Qualifying etc.), you will not be granted any further
opportunity in future."
12. The Notifications dated 10th October, 2012 and 14th March, 2013 supra
of the respondents University were the subject matter of the judgment dated
27th November, 2014 of a Division Bench of this Court, of which the
W.P.(C) No.9320/2014 Page 5 of 16
undersigned was a member, in LPA No.956/2013 titled Amit Kumar Vs.
Delhi University and other connected petitions. It was inter alia held
therein, (a) that the students cannot be said to be having any right to
complete the course / programme to which they have sought permission, in
whatever time they may deem proper, particularly when the rules of the
University provided otherwise; (b) the Universities are fully empowered to
lay down the maximum period for completing the educational course /
programme and to determine whether any relaxation with respect thereto is
to be given or not; (c) that the span period is the outer limit for completing
the educational course / programme and is generally found to be double the
duration, otherwise prescribed for completing the educational course /
programme--thus, a relaxation / exemption is inbuilt in the span period; (d)
however, the question still remains, whether there should be a span period;
(e) the educational courses / programmers concerned are long term courses /
programmes, spanning over several years and in which time uncertainties of
life can have a play; (f) the question thus arises, whether the expiry of such
span period should be allowed to come in the way of desire for education or
completing education; (g) that the rules of the respondents University
prescribing the span period were formulated decades back and did not appear
W.P.(C) No.9320/2014 Page 6 of 16
to have been relooked in today's context and life. Accordingly, a direction
was issued to the respondents University to consider the matter, in the light
of the observations made in the judgment.
13. Though the time period in which the respondents University was, in
Amit Kumar supra, directed to take decision has expired but on enquiry it
was informed that the matter is still pending consideration.
14. In accordance with the judgment in Amit Kumar supra, the petitioner
having exhausted the span period as well as the special chance given vide
Notification dated 14th March, 2013 and letter dated 25th April, 2013, is not
entitled to any relief.
15. The counsel for the petitioner however sought to distinguish the
judgment in Amit Kumar supra by contending that while the petitioners
therein were seeking a special chance to appear in the examination, the
petitioner in January, 2014 having been "re-admitted" in the VIth term of the
LLB course, is not bound by the rule of span period. It is contended that the
petitioner herein is entitled to appear in the supplementary examination of
the VIth term just like any other regular student of VIth term would be entitled
to.
W.P.(C) No.9320/2014 Page 7 of 16
16. Per contra, the counsel for the respondents University has contended
that readmission of the petitioner was also in accordance with the grant of
special chance only. It is explained that without the petitioner attending the
requisite number of classes of the VIth term and which he had not attended
when he had discontinued his studies after the Vth term, he could not have
been permitted to take the examination in the subjects of the VIth term.
17. There can be no doubt as to the explanation aforesaid by the
respondents University. The rules of legal education formulated by the Bar
Council of India do not permit an LLB degree to be granted without the
student attending the classes for the said course, as a regular student thereof.
18. Thus, the mere fact that the respondents University readmitted the
petitioner to the LLB course would not make the other rule of the
respondents University pertaining to span period inapplicable to the
petitioner. Grant of a special chance to the petitioner, to take only the
examination in the remaining paper of the Vth term and in the five papers of
the VIth term, without so readmitting the petitioner, would have been futile
for the petitioner. On the reasoning in Amit Kumar supra, the petitioner is
not entitled to any relief at this stage and has to await the outcome of the
decision which the respondents University in Amit Kumar supra has been
W.P.(C) No.9320/2014 Page 8 of 16
directed to take.
19. However in the exercise of jurisdiction under Article 226 of the
Constitution of India, the rule is that the High Court is empowered to grant
relief, even if does not find any right in the petitioner thereto but finds the
grant of the relief to be necessary to serve the ends of justice and in the
particular facts and circumstances. A discussion, supported with precedents,
in this regard is to be found in Bessy Edison Vs. Indira Gandhi National
Open University 176(2011) DLT 335 and in Gurmeet Singh Vs. DDA
MANU/DE/2951/2011. The Supreme Court in Shangrila Food Products
Ltd. Vs. LIC (1996) 5 SCC 54, Dwarka Nath Vs. ITO AIR 1966 SC 81, LIC
Vs. Asha Goel (2001) 2 SCC 160 and UOI Vs. R. Reddappa 1993 (4) SCC
269 has held that Article 226 is couched in comprehensive phraseology and
it ex-facie confers a wide power on the High Court to reach injustice
wherever it is found. The High Court is empowered to mould the relief to
meet the peculiar and complicated requirements of this country. The
Constitution does not place any fetters on the exercise of the extraordinary
jurisdiction of the High Courts under Article 226. It is left to the discretion
of the High Court. This Court can, in exercise of such jurisdiction, take
cognizance of the entire facts and circumstances of the case and pass
W.P.(C) No.9320/2014 Page 9 of 16
appropriate orders to give the parties complete and substantial justice. Once
this Court is satisfied of injustice or arbitrariness, then the restrictions on the
exercise of power, self imposed or statutory, stand removed and no rule or
technicality, on exercise of power, can stand in the way of rendering justice.
20. I find the petitioner entitled to the relief claimed of issuance of
mandamus to the respondents University to allow the petitioner to take the
examination in the remaining paper i.e. Jurisprudence-II of the VIth term of
the LLB course, for the reasons recorded hereinafter:
(I) The interruption in the education of the petitioner was on
account of the petitioner opting to join the Army. Though the
petitioner had time, as aforesaid till 2008, to complete his education in
LLB course but left the same in 2005 to serve the country.
(II) The petitioner has pleaded and which I have no reason to
disbelieve, that after completing his military training from Indian
Military Academy, Dehradun, he was posted, from June, 2006 to June,
2009 in Jammu & Kashmir; from July, 2009 to January, 2011 at
Thiruvananthapuram in Kerala, and from February, 2011 to February,
2013 was again posted in Jammu & Kashmir. The petitioner has
further pleaded that during his first posting in Jammu & Kashmir, he
W.P.(C) No.9320/2014 Page 10 of 16
was awarded with the Siachen Glacier Medal, Operation Rakshak
Medal, High Altitude Medal and Sainya Sewa Medal and during his
second posting in Jammu & Kashmir, he was awarded with the
Special Service Medal for Field Posting in Counter Insurgency
Operation Area for a period of two years.
(III) Our country and its various institutions and authorities, in
recognition of the service so rendered by the Defence Personnel to the
nation, have devised several schemes conferring certain special
benefits, advantages and reservations to them and to their family
members. The Supreme Court, as far back as in D.N. Chanchala Vs.
The State of Mysore (1971) 2 SCC 293 held that reciprocal
obligations towards those who serve the interest of the country's
security justified setting apart of certain seats in educational
institutions for defence personnel. Such preferential treatment was
held permissible under Article 15(4) of the Constitution of India. It
was held that Defence personnel are at a disadvantage in the matter of
education. However it appears that the respondents University, while
stipulating the span period, has not considered the said factor and not
provided a longer span period for Defence Personnel, considering the
W.P.(C) No.9320/2014 Page 11 of 16
exigency of their services and duties. The Supreme Court in State of
Orissa Vs. Mohd. Yunus 1994 Supp. (2) SCC 55 held that ex-
servicemen, after putting in several years of service in Defence, cannot
be considered at par with others, making the benefits, concessions,
reservations provided for them illusory. The State Governments and
the Public Service Commission was accordingly directed to consider
desirability for fixing lower standards for ex-servicemen. Similarly in
Sansar Atri Chand Vs. State of Punjab (2002) 4 SCC 154 it was held
that the provision for reservation in the service Rules is meant for the
benefit of ex-servicemen- in the context of the scheme of the
provision. The said provisions should be interpreted in a purposive
and reasonable manner so the intent and the purpose of the provision
served.
(IV) The Supreme Court, in Capt. Virendra Kumar Vs. Union of
India (1981) 1 SCC 485 observed that Defence personnel fight on the
war front and expose their lives to extinguishment, so that the security
of the nation might be defended. In the facts of that case, the
unwillingness of the Government to value such patriotism was
adversely commented upon and it was felt that the same may
W.P.(C) No.9320/2014 Page 12 of 16
adversely affect the morale of the Defence Forces. The Supreme
Court deprecated the unimaginative attitude of the authorities and held
that the Defence Personnel deserve special solicitude having regard to
the supreme sacrifice sometimes they are called upon to make. It was
held that Defence Personnel are dear to the country and a considerate
disposition in dealing with them needs to be shown.
(V) However, it appears that notwithstanding the efforts made in the
aforesaid direction, the Defence Personnel are not receiving their due.
The Supreme Court in Union of India Vs. C.S. Sidhu (2010) 4 SCC
563 has commented with regret on the shabby manner in which the
army men in our country are being treated. It was observed that they
bravely defend our country, even at the cost of their lives and deserve
a better and humane treatment.
(VI) This Court in Amit Kumar supra has already discussed the
importance and relevance of education. Reliance was placed on
Professor Yashpal Vs. State of Chhattisgarh (2005) 5 SCC 420
where the Supreme Court observed that academic degree is of great
significance and value and goes a long way in shaping the future of
the holder thereof. Education was held to be an important element of
W.P.(C) No.9320/2014 Page 13 of 16
dignity of the individual which is secured to all citizens of the country
in the Preamble itself of the Constitution of India. Education is also a
Fundamental Right, inasmuch as there can be no right to practise
profession without education. Without education, no citizen can be
expected to perform his Fundamental Duties enshrined in Article 51A
of the Constitution also;
(VII) The Courts also have leaned in favour of a citizen educating
himself/herself by declaring illegal the age limits prescribed for
joining an educational programme or profession or vocation. Recently,
vide order dated 11th November, 2014 in Transferred Case (Civil) No.
47/2014 titled H.D. Sailor Vs. Bar Council of Gujarat and other
connected cases, the Supreme Court upheld the judgments of the High
Courts of Madras, Punjab & Haryana and Rajasthan quashing the rules
preventing the persons who had crossed the age limit of 45 years from
enrolling with the Bar Council on the ground of the same being
violative of Article 19(1)(g) of the Constitution and in accordance
with the earlier judgment of the Supreme Court in Indian Council of
Legal Aid & Advice Vs. Bar Council of India (1995) 1 SCC 732.
W.P.(C) No.9320/2014 Page 14 of 16
(VIII) The Supreme Court in Maharshi Mahesh Yogi Vedic
Vishwavidyalaya Vs. State of M.P. (2013) 8 SCALE 541 gave the
status of national wealth to education. Similarly, in Institute of
Chartered Financial Analysts of India Vs. Council of the Institute of
Chartered Accounts of India (2007) 12 SCC 210 it was held that the
right to acquire a qualification being an inherent and human right,
cannot ordinarily be curtailed.
In the aforesaid spirit, I am of the opinion that this Court will be
failing in its duty if denies relief to the petitioner.
21. Accordingly, the petition is allowed; the respondents University of
Delhi is directed to allow the petitioner to complete the LLB course / degree
by appearing in the examination of the remaining paper (Jurisprudence-II) of
the VIth term of the LLB programme, subject of course to the petitioner
complying with the requisite formalities.
22. A direction is also issued to the respondents University of Delhi to,
while taking the decision in compliance of Amit Kumar supra, also take
what has been observed in para 20 hereinabove into consideration i.e.
whether while stipulating the span period if any, an exception needs to be
carved out qua defence personnel and if so on, what terms. Attention of the
W.P.(C) No.9320/2014 Page 15 of 16
respondents University in this regard is also invited to Dhan Singh Vs. State
of Haryana 1991 Supp (2) SCC 190 where the Supreme Court carved out a
yet further distinction between those already in the service of the defence of
the country and those who volunteered to join the military service during
national emergency. It was held that those who forego other benefits and
avenues and join the army keeping in view the needs of the country ought to
be shown a special regard
No costs.
` RAJIV SAHAI ENDLAW, J.
AUGUST 04, 2015 bs..
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