Calcutta High Court (Appellete Side)
Suraj Konar & Ors vs University Of Calcutta & Ors on 11 September, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. 13686 (W) OF 2009
Suraj Konar & ors.
Vs.
University of Calcutta & ors.
For the petitioner : Mr. Dilip Kumar Samanta
Mr. Biswapriya Samanta
For the University : Mr. Partha Sarathi Sengupta
Dr. Sambuddha Chakraborty
Mr. Biswarup Bhattacharjee
For St. Xavier's College : Mr. Bhaskar Sen
Mr. Debdutta Sen
Mr. Alokesh Doloi
Mr. J. B. Panda
Heard on : 4.9.2009, 7.9.2009, 9.9.2009,10.9.2009 and 11.9.2009
Judgment on : 11.9.2009
"Merit must be the test when choosing the best", said Hon'ble V.R. Krishna Iyer, J. in Dr.
Jagdish Saran & ors. vs. Union of India & ors., reported in AIR 1980 SC 820. This ought to be the
'mantra' of every public authority entrusted with the task of selecting candidates, be it in the sphere
of employment or admission to education institutions or representing the nation or the state in
varied activities, and the like. According to the petitioners, there has been a conscious effort on the
part of the authorities of the University of Calcutta (hereafter the University) to promote mediocrity
at the expense of merit and they urge the Court of Writ to undo the wrong perpetrated by it to their
utter detriment and prejudice.
To resolve the dispute, its origin, the relief claimed and the respective stands of the rival
parties may be noticed.
The University published an advertisement on or about 11.8.2009 inviting applications for
admission to various Post-Graduate courses of study in Arts, Science and Technology conducted by
it. So far as Post-Graduate courses leading to conferment of M.Sc. degree is concerned, the
University offered, inter alia, the subjects of Physics, Chemistry, Pure Mathematics, Statistics, and
Computer and Information Science while for B. Tech. degree it offered, inter alia, Radio Physics
and Electronics. The advertisement, however, contained the following stipulation:
"From this academic year, students of autonomous colleges of Calcutta University will take
admission in PG Courses along with students of other colleges who are directly under
University of Calcutta. It has been decided to follow a standardization method based on the
pattern of Marks distribution of different population of students considering the parameters
Arithmetic Mean and Standard Deviation.
It has been observed that for a sufficiently large sample, most of the distributions follow
Normal Distribution with two parameters Arithmetic Mean and Standard Deviation and by
changing the origin and scale of the variable, the said distribution can be converted to
Standard Normal Distribution with Arithmetic Mean as zero and Standard Deviation as 1.
Therefore applying the change of origin and scale suitably to different distribution of marks
all distributions can be converted to Standard Normal Distribution and then all individuals
may be merged and the merit list may be generated from the converted and amalgamated
population."
The Information Brochure published by the University contained similar
stipulation just below the following clause:
"6. Admission is strictly in order of merit, judged on the basis of marks
secured in Honours subjects. In case of a tie, the aggregate of marks in
general subjects are taken into consideration. However, in some courses
there are admission test and/or interviews."
St. Xavier's College (hereafter the College) till the end of the academic session 2005-06
was affiliated to the University and under its direct control like 130 other colleges. However, with
issuance of letter dated 6.3.2006 by the Registrar of the University, the College was granted
autonomy. The said letter of the Registrar conveyed to the Principal of the College the decision of
the University to confer on it the status of an autonomous college under it "for a period of six years
with effect from academic year 2006-07 as per Xth Plan UGC guidelines of the Scheme of
Autonomous Colleges."
Twelve students being the petitioners in this petition had taken admission in 2006 in various
Under-Graduate courses of study in Science in the College. They duly completed the prescribed
courses of study and ultimately graduated with First Class Degree conferred by the University.
Upon acquitting themselves creditably in the respective Under-Graduate examinations, they
noticed the advertisement referred to above. The first and the second petitioners applied for
admission in M.Sc. (Chemistry), the third, the sixth and the seventh petitioners in B.Tech (Radio
Physics and Electronics), the fourth and the fifth petitioners in M.Sc. (Physics), the eighth to the
tenth petitioners in M.Sc. (Mathematics), the eleventh petitioner in M.Sc. (Statistics) and the
twelveth petitioner in M.Sc. (Computer and Information Science).
Based on the marks obtained by them in their respective Under-Graduate examinations, the
petitioners reasonably expected of securing high ranks in the merit list for being admitted to the
Post-Graduate courses of their choice conducted by the University. However, to their utter surprise,
they found that they had not been treated at par with candidates who have graduated from other
affiliated colleges of the University directly under its control. Seats in each course being limited,
number of candidates graduating from colleges directly under the control of the University despite
having obtained lesser marks than the petitioners in the Honours subjects of the Under-Graduate
examinations had been placed way above them in the provisional merit list and thereby the
petitioners were faced with a situation of being deprived of admission. Feeling aggrieved by such
action on the part of the University in placing them in the provisional merit list at positions not
strictly in accordance with merit, they preferred the present petition on 4.8.2009, praying for the
following relief:
"a) A Writ in the nature of Mandamus commanding the respondents to cancel, rescind,
withdraw and/or set aside the merit list prepared by the respondent no.1 for admission to M.Sc. Course in the subjects like Chemistry, Physics, Mathematics, Statistics, Computer Science for its publication on August 6, 2009 forthwith;
b) A Writ in the nature of Certiorari directing the respondents to transmit and produce the relevant records of the case including the merit list prepared by the respondent no.1 for admission to M.Sc. Course for the session 2009-2010 in the subjects like Chemistry, Physics, Mathematics, Statistics, Computer Science before the Hon'ble Court so that conscionable justice may be done by quashing the same;"
I entertained the writ petition on 6.8.2009. For reasons recorded in the order, I had declined to grant interim relief to the petitioners. However, it was observed that while publishing the final merit list of candidates in respect of subjects for which the petitioners intended to take admission, it shall be informed to all the students concerned by the University that admission in pursuance thereof shall abide by the result of the writ petition.
During the pendency of the writ petition, the sixth and the seventh petitioners obtained admission in the courses of study of their choice and, therefore, expressed desire not to proceed further. The writ petition at their instance stood dismissed by order dated 4.9.2009.
The writ petition has since been heard extensively on exchange of affidavits.
Mr. Samanta, learned counsel for the petitioners contended that the University has subjected the petitioners to hostile discrimination. According to him the petitioners did not realize the negative implications of the standardization method and, therefore, had not objected to the same while applying in response to the advertisement issued by the University. The classification made by the University between students of direct colleges on the one hand and students of the College on the other, is patently unreasonable not being based on any intelligible differentia and having no nexus with the object sought to be achieved and hence the petitioners are entitled to relief as prayed for.
Mr. Sen, learned senior counsel representing the College while supporting the claim of the petitioners sought to highlight that the University Grants Commission (hereafter the UGC) guidelines on the scheme of autonomous colleges (hereafter the guidelines) do not authorize the University to treat students of autonomous colleges differently and while conferring autonomous status, the University naturally did not impose any condition that the students graduating from the College would be differently treated while seeking admission to Post Graduate courses conducted by it. According to him the guidelines specify the manner of constitution of, inter alia, the Governing Body of a privately managed autonomous college, its Academic Council as well as the Board of Studies. In each of the bodies, the nominees of the University are members and, therefore, the University's participation in administering the affairs of the College can hardly be denied. In view thereof, the decision to treat the students graduating from the College as a separate class and to apply the method of standardization is wholly unauthorized and, therefore, ought to be declared as such. In this connection, he referred to a letter dated 26.11.2008 written by the Principal of the College to the Chairman of the UGC expressing his apprehension that the students of the College would not be treated at par with students of direct colleges by the University and thereby requesting for issuance of a directive on the University not to discriminate students of the College in the matter of admission in Post-Graduate courses, and the reply thereto whereby the Principal was advised not to believe in rumours having regard to the guidelines. He also invited my attention to a letter dated 23.8.2009 written by Professor Probal Chaudhuri, Theoretical Statistics and Mathematics Unit of the Indian Statistical Institute, addressed to the Vice-Chancellor of the University who, inter alia, raised doubt in respect of implementation of the standardization procedure that the University intended to implement and observed that "it is not at all true that 'for a sufficiently large sample, most of the distributions' are normal, as it has been literally claimed in the notice and the brochure". A request had been made by him for taking corrective steps so as to avoid victimization. According to Mr. Sen, the University in its affidavit has not answered the point. Having regard to the facts and circumstances, he urged that this is an appropriate case for exercise of writ powers by the Court.
Mr. Sengupta, learned counsel for the University opposed the petition by contending that the petitioners are not entitled to any relief for the following reasons:
i) They applied in response to the advertisement seeking admission, fully aware of the stipulation that the standardization method would be applied, and thus acquiesced by taking a calculated chance. Now that the result is not palatable to them, they have no right to maintain the writ petition;
ii) To apply the standardization method is in the realm of a policy decision taken by the Syndicate of the University. Even though a policy decision may be challenged on limited grounds, in this petition the policy decision has not been challenged at all and in the absence of such challenge, the Court may not enlarge the scope of the writ petition;
iii) 'Standardization' is a well-accepted statistical technique that was applied to achieve parity between marks obtained by students of affiliated colleges directly under the control of the University and students of the College, since they have graduated from a separate set-up where the examination procedure is different;
iv) The guidelines do not restrict the power of the University to decide how students of autonomous colleges are to be treated in course of admission to higher courses of study. In fact, it does enable the University to 'consider' the external and internal assessment of students in autonomous colleges for admitting them to higher-level courses in contra-distinction to acceptance of the methodologies of teaching, examination, evaluation and the course curriculum of the autonomous colleges and, therefore, the decision of the University, even on merits cannot be faulted;
v) The College has not challenged the decision of the University by taking recourse to law and, thus, cannot be considered to be a person aggrieved. It is precluded from making out an independent case in its affidavit and, therefore, the grievance sought to be raised by the College ought not to be determined on this writ petition; and
vi) Students have already been admitted on the basis of the stipulations in the Information Brochure. At this stage if the Court interferes and sets at naught the admission procedure, number of students would be affected. It would take some time to start the entire procedure afresh and to conclude it, resulting in the students running the risk of losing a precious year of their life.
He, accordingly, prayed for dismissal of the writ petition.
It must, however, be placed on record that sensing the Court's inclination to interdict the impugn decision, Mr. Sengupta submitted today, on instructions, that the University has the necessary infra-structure for admitting the ten petitioners in the courses of study of their choice and, therefore, necessary order for their admission may be passed without disturbing admission of the other students.
I have heard the parties over the last few days on the merits of the writ petition and obviously am not inclined to adopt a short-cut method to dispose it of having regard to the importance of the issue. The situation calls for observations to remind the members of the Syndicate their obligations towards the students.
On hearing the parties and on perusal of the records placed before me by Mr. Sengupta, I would not be unjustified in holding that the University has made a brazen attempt to defend the indefensible, and has made a mockery of the merit criteria. I shall proceed to give my reasons therefor.
However, before I do that, it is necessary to deal with the first contention of Mr. Sengupta. It is the normal rule that the Court would not come to the assistance of the fence sitters. But there is no inviolable rule that the Court would remain a mute spectator and refuse to interdict even when it finds the process that has been adopted is glaringly illegal. Reference in this connection may be made to the decision of the Apex Court in Raj Kumar vs. Shakti Raj, reported in (1997) 9 SCC 527 wherein it was ruled as follows:
"16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K [(1995) 3 SCC 486] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."
Since the admission process suffers from glaring illegality, it would always be a matter of exercise of sound judicial discretion whether to grant relief as claimed in its entirety or to mould the relief on just and fair considerations. I, therefore, while overruling the contention of Mr. Sengupta hold that the writ petition is well-nigh maintainable.
Arguments have been advanced both by Mr. Samanta and by Mr. Sen on the method of standardization. I must be candid, I could not comprehend the formula applied and its working in reaching the result that is reflected in the merit lists. I lack the requisite expertise to opine as to whether the ultimate result is on the basis of correct application of the formula or not. However, the fact that application of the formula is certain to produce absurd results and that it does not advance admission based on merit cannot be overlooked.
The action of the University in insisting on applying the statistical method of standardization, in my considered view, has its own pitfalls. A student graduating from the College with 60% marks in the Honours subject in the aggregate is conferred the degree of B.Sc. (Hons.). The University in terms of the guidelines is bound to issue certificate in his favour declaring the class which he has secured. It has not been disputed by Mr. Sengupta that such student would be placed in the 'First Class'. At the same time, the University is also obliged to issue certificate in favour of a student who graduates from an affiliated college directly under its control. If such student of a direct college obtains 57% marks in the aggregate in the Honours subject, the University would declare him a graduate placing him in the 'Second Class'. Under no circumstances, the University has the authority to issue certificate placing him in the 'First Class'. However, it has further not been disputed by Mr. Sengupta that if both the students apply for admission in a common course of study in response to the said advertisement issued by the University and the standardization method is applied, as has been applied in the present case, the student obtaining 'Second Class' (with 57% marks) would in all probability stand a fair chance of stealing a march over the student who obtained 'First Class' (with 60% marks) by obtaining a rank higher than him in the merit list and thus have a better prospect of securing admission. The formula, keeping in mind the above situation, has to be branded 'foolish' for there can be nothing more ridiculous than a 'Second Class' student overtaking a 'First Class' student by application of this sinister formula.
I am conscious that a Court ought to be slow in interfering with academic decisions and that any drawbacks in the policy will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not effectuate the purposes of the Act (see Maharashtra State Board of Secndary and Higher Secondary Education vs. Paritosh Bhupesh Kumarsheth, reported in AIR 1984 SC 1543). The Apex Court in the said decision, however, did not lay down the law that a rule/regulation framed by an academic body or a policy decision taken by it are immune from challenge. I may usefully refer to paragraph 18 of the said decision wherein it has been observed that constitutionality of the impugned regulations has to be adjudged only by a three-fold test, namely, (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution.
However, for the purpose of deciding the present dispute, I need not enter into the controversy as to whether the so called policy decision taken by the Syndicate of the University to follow the method of standardization is wise and prudent or not in view of the observations of Professor Probal Chaudhuri, for, there are other weighty reasons for which the very resolution of the Syndicate based whereon the University has sought to build up its case is found to be fallible.
The University has filed two affidavits-in-opposition, one countering the writ petition and the other one countering the affidavit filed by the College. The records had to be called for by me because in their rather cryptic affidavits, the University and its officers did not bother to include copies of the relevant documents. Copies of the records that have been produced are also incomplete, yet, I do not consider it to be an impediment for giving my decision based thereon.
In one of such affidavits, the University has annexed a copy of "Post Graduate Admission Policy". The document at its top bears an endorsement "Annexure 43.3 of Syndicate dt. 11-6- 2009". Bare perusal of the portion of the advertisement published by the University, extracted supra, would reveal that the same is the verbatim reproduction of the first two paragraphs of this document. The Syndicate under Item No.43 of its meeting held on 11.6.2009 was considering, inter alia, preparation of merit list for admission to the Post-Graduate courses of the University by a procedure involving statistical technique and according to Mr. Sengupta, the document annexed to the affidavit of the University referred to above was a part of the item under consideration. Although specific averments in the affidavits filed by the University to this effect are absent, I shall assume the statement of Mr. Sengupta to be correct.
On 11.6.2009, the Syndicate in so far as admission of students passing out from the College to Post-Graduate courses resolved as follows:
"That the matter of admission of students passing from Autonomous Colleges to the first year class at the P.G. Level, be examined in more detail by a Committee to be constituted by the Vice-Chancellor and that the recommendations of the said Committee be placed before the Syndicate for further deliberation/consideration."
Accordingly, the Vice-Chancellor of the University by an office order dated 12.6.2009 constituted a Committee for the purpose of finalizing the matter relating to admission of students of the College to Post-Graduate courses of the University in the academic session 2009-10 consisting of the following:
1. Vice Chancellor,
2. Pro-Vice-Chancellor for Academic Affairs,
3. Dean, Arts,
4. Dean, Science,
5. Dean, Technology,
6. Dean, Commerce,
7. Registrar (Convenor).
A request was made thereby to the Registrar of the University to convene a meeting of the Committee on 22.6.2009. However, nothing has been placed before me to show that on 22.6.2009 the Committee constituted by the Vice-Chancellor, by order dated 12.6.2009, did meet and discuss the issue.
On the contrary, it is found from the records placed before me that the Vice-Chancellor (in terms of desire expressed by the members of the Syndicate) had by his order dated 28.5.2009 constituted a Committee of ten members with the Pro-Vice-Chancellor for Academic Affairs as Chairman (see resolution of the Syndicate dated 11.6.2009 on Agenda dated 13.3.2009). That Committee had first met on 4.6.2009, and outcome of the meeting was reported to the Syndicate as Item No.43 of its agenda dated 11.6.2009 alongwith the proposed statistical method concerning "Post Graduate Admission Policy". Despite constitution of a Committee on 12.6.2009 by the Vice- Chancellor, the earlier Committee (constituted by the Vice-Chancellor on 28.5.2009) again met on 23.6.2009. The Vice-Chancellor was also present at such meeting. Whether on the face of constitution of a Committee by the Vice-Chancellor in terms of decision arrived at by the Syndicate on 11.6.2009 the earlier Committee could take any decision is doubtful. Be that as it may, the decision arrived at in such meeting, to the extent relevant, reads as follows:
"The meeting discussed various aspects of the statistical method that has been proposed to normalize the marks of the students passing from the affiliated and autonomous colleges.
Several modifications were suggested. For example, by careful manipulation of the cut-off marks, distribution could be improved. The statistical method, as modified, was accepted as the mechanism to be followed in the matter of admission to the concerned PG courses only for this year.
Pro-Vice-Chancellor (Academic Affairs) may discuss the proposed mechanism with concerned Heads of the Department."
The decision was approved by the Vice-Chancellor on 24.6.2009. The Syndicate in its meeting held on 30.6.2009 resolved, in respect of Item No.27, as follows:
"That the action taken by the Vice-Chancellor approving the Proceedings of the meeting of the Syndicate Sub-Committee dated 23.06.2009, as contained in the item, with regard to the Registration and Migration related issues of students of Autonomous Colleges as also adoption of a mechanism to be followed in the matter of their admission to the concerned P.G. Courses in this University only for this year, be approved for implementation."
(bold font in original) The said resolution of the Syndicate was confirmed in its meeting held on 14.7.2007 under Item No.1 and, thereafter on 4.8.2009, the Registrar of the University, vide Notification No.CSR/39/09 notified for information of all concerned the decision taken by the Syndicate.
It would appear from the above that the proposed admission policy was considered by the Syndicate in its meeting held on 11.6.2009, when it was resolved that a further examination in detail is necessary by a Committee to be constituted by the Vice-Chancellor. The Syndicate Sub- Committee (constituted by the Vice-Chancellor on 28.5.2009) examined the issue and discussed the modifications that were suggested on 23.6.2009. It is an undisputed position that the statistical method which was earlier proposed stood modified and was accepted as the mechanism to be followed in the matter of admission of students to the concerned Post-Graduate courses only for this academic year. However, it is intriguing that neither the modified statistical method (accepted as the mechanism to be followed in the matter of admission) did see the light of the day in the students' world, for, the same does not find place either in the advertisement inviting applications or in the Information Brochure published by the University, nor has the same been placed for the purpose of my consideration. It is worth noting that the proposed statistical method placed before the Syndicate on 11.6.2009 was not considered worthy of acceptance, yet, the same was notified for information of the contenders for the seats in various Post-Graduate courses through the advertisement and the Information Brochure. One is left awe struck. Once the proposed admission policy was not accepted by the University Syndicate, the same could not have been the guiding factor in preparing the provisional and final merit lists. Since the lists have been prepared based thereon, the action appears to be clearly illegal and arbitrary. Non-application of mind by the authorities of the University responsible for publication of the advertisement and the Information Brochure is writ large. It is regrettable that an educational institution of repute like the University has to earn a bad name because of the reprehensible conduct of some of its officers.
Above all, why in the first place the Syndicate considered it expedient to follow the method of standardization is conspicuous by its absence in its resolutions. Submissions made by Mr. Sengupta to justify why it was felt necessary to follow the method of standardization is considered to be an attempt to fill up the lacuna. It admits of no doubt, as contended by Mr. Sengupta, that the Court would not delve deep in the unchartered ocean of public policy. But is it the law that a decision in the realm of policy would be taken without even expressing in brief the felt need that necessitated it? I do not think so. There is no reason as to why even in case of discharge of administrative functions of a nature like the present one the administrators should be free to ignore the twin tests of 'why' and 'what' enunciated by this Court in its decision in Uniworth Resorts Limited vs. Sri Ashok Mittal, reported in (2008) 1 Cal LT 1 (HC), albeit in respect of a judicial order. It is the 'why' that should have sustained the 'what'. The decision of the Syndicate suffers from the incurable infirmity of being an ipse-dixit having no element of 'why' for the 'what' to stand on.
Mr. Sengupta's contention that the policy decision not being under challenge and hence the petitioners are not entitled to any relief has not impressed me. In order to refuse relief to the petitioners, it was obligatory for the University to demonstrate that the decision had been arrived at according to law. Unfortunately, the University has utterly failed to satisfy me in this regard. Having acted contrary to law and even contrary to the resolution dated 30.6.2009 of the Syndicate, any objection from the University's side on this aspect appears to me to be thoroughly untenable.
The further question that requires to be decided on this petition is as to whether the University could have at all evolved the method of standardization. For the purpose of a decision on this point, it would be necessary to look into the guidelines framed by the UGC in respect of scheme of autonomous colleges.
It appears from the guidelines that granting autonomy to the colleges is an instrument for promoting academic excellence. Autonomy could only be granted if the State Government and the UGC concurs. It further appears from the portion dealing with relationship of the autonomous colleges with the parent university, the State Government and other educational institutions that "The parent university will accept the methodologies of teaching, examination, evaluation and the course curriculum of its autonomous colleges. It will also help the colleges to develop their academic programmes, improve the faculty and to provide necessary guidance by participating in the deliberations of the different bodies of the colleges".
The guidelines clearly spell out the "Criteria for Identification of Institutions for Grant of Autonomy". In terms thereof, the following factors are to be considered for granting autonomous status to a college:
"a) Academic reputation and previous performance in university examinations and its academic /co-curricular/extension activities in the past.
b) Academic/extension achievements of the faculty.
c) Quality and merit in the selection of students and teachers, subject to statutory requirements in this regard.
d) Adequacy of infrastructure, for example, library, equipment,
accommodation for academic activities, etc.
e) Quality of institutional management.
f) Financial resources provided by the management/state government for the development of the institution.
g) Responsiveness of administrative structure.
h) Motivation and involvement of faculty in the promotion of
innovative reforms."
So far as governance of autonomous colleges is concerned, the guidelines provide as follows:
"The college will have the following committees to ensure proper management of academic, financial and general administrative affairs. The following are statutory bodies:
Governing Body Academic Council Board of Studies Finance Committee"
Regarding Academic Council, the guideline reads:
"ACADEMIC COUNCIL The Academic Council will be solely responsible for all academic matters, such as, framing of academic policy, approval of courses, regulations and syllabi, etc. The Council will involve faculty at all levels and also experts from outside, including representatives of the university and the government. The decisions taken by the Academic Council will not be subject to any further ratification by the Academic Council or other statutory bodies of the university. The composition and functions of the Academic Council are given in Annexure IV."
The guidelines further stipulate that the Governing Body of a Private Management Autonomous College would consist of, inter alia, a University nominee. Likewise, the Academic Council would consist of, inter alia, three nominees of the University. The Board of Studies is also to be composed of, inter alia, an expert to be nominated by the Vice-Chancellor from a panel of six recommended by the Principal of the College. The College, it has not been contended before me, has been functioning without the nominees of the University either in the Governing Body or the Academic Council, or the expert nominated by the Vice-Chancellor.
Regarding award of degrees, the provision is:
"AWARD OF DEGREES THROUGH PARENT UNIVERSITY The parent university will award degree to the students evaluated and recommended by autonomous colleges. The degree certificates will be in a common format devised by the university. The name of the college will be mentioned in the degree certificate, if so desired. Autonomous colleges that have completed three terms can confer the degree under their title with the seal of the university."
From the guide-lines framed by the UGC it does not appear to me that a college which has been granted status of autonomy ceases to be an affiliated college of the parent university. This is further clarified if one has a look at the definition of autonomous college inserted in the Act by way of amendment. It reads as follows:
"(2A) 'autonomous college' means an affiliated college recognized by the University and enjoying academic freedom to -
(a) determine and prescribe its own courses of study and syllabi;
(b) determine rules of admission subject to the reservation policy of the State Government; and
(c) evolve methods of evaluation and to conduct examination, under guidelines and supervision of the University."
It has not been stated on oath by the University that the examinations conducted by the College in respect of its Under-Graduate courses leading to conferment of B.Sc. (Hons.) degree by it (the University) on the ten petitioners were not in terms of its guidelines and/or not under its supervision. Can the University disown the degree that it has conferred? On the face of the guidelines, together with the stipulation in the Act, the University has no other option but to treat the students of autonomous colleges at par with the students of affiliated colleges directly under its control. To permit the University to treat the students of the College differently would amount to hostile discrimination, which is in the teeth of the constitutional guarantee engrafted in Article 14 of the Constitution.
At this stage the letter dated 26.11.2008 written by the Principal of the College addressed to the Chairman of the UGC and the reply thereto may be considered. Though the UGC did not issue any directive as requested by the Principal of the College, the reply of the Under Secretary of the UGC is a pointer to the fact that the UGC did not feel it necessary to issue separate directive having regard to the stipulations in the guidelines. Implicit in such letter is the assurance given by the UGC that the University is obliged to treat the students of autonomous colleges at par with the students of affiliated colleges directly under its control. The University, it is thus held, has not been vested with any power or authority, in terms of the guidelines, to treat the students of the College differently. It is crystal clear on the facts on record that the University has treated the students graduating from the College in the matter of admission to the Post-Graduate courses as her step- children, despite conferring degrees in B.Sc. (Hons.) (with First Class) on them.
Mr. Sengupta, however, submitted before me that the University was free to consider the marks obtained by the students of the College having regard to terms of clause (b) under the heading "Others" which is extracted below:
"OTHERS
(b) Universities shall consider both internal and external assessment of students in autonomous colleges for admitting them to higher-level courses."
This he submits would be clear from the fact that the word 'accept' was not mentioned which finds reference in the clause under "Relationship with the Parent University............" wherein it is clearly stipulated that the methodologies of teaching, examination, evaluation and the course curriculum of the autonomous colleges are to be accepted by it. It is his contention that the word 'consider' has been consciously inserted which by necessary implication would mean that the University was not bound to accept the assessment as it were, made by the autonomous colleges.
I have not been able to persuade myself to agree with his contention. By using the word 'consider' in clause (b) what was intended by the UGC is that the parent university would not have the option of considering only external assessment but made it imperative for it to consider both internal and external assessment of students of autonomous colleges while admitting them to higher level courses. In the event the clause is to be construed in the manner argued by Mr. Sengupta, that would really take away the sheen of autonomy granted to the colleges and would be clearly contrary to the spirit of granting academic freedom for promoting excellence.
Even otherwise, the decision of the University to follow the standardization method cannot be sustained for the reason following.
Section 22 of the Calcutta University Act, 1979 (hereafter the Act) provides for exercise of powers and performance of duties as laid down therein by the Syndicate of the University. Clause (xix) of Section 22 reads as follows:
"(xix) to make regulations regarding the conduct of examinations held by the University and the condition under which students may be admitted to the different courses of studies of and the examinations held by the University."
Section 54 of the Act provides that subject to the provisions of the Act and the Statutes and the Ordinances, Regulations may be made to provide for, inter alia, "the conditions for admission to the different courses of study and examinations of students."
The manner and/or method of framing Regulations are provided in Section 55 of the Act. No Regulation framed by the University in terms of Section 55 of the Act laying down conditions for admission to the different Post-Graduate courses of studies conducted by it has been placed before me. No effort has been made to sustain the policy decision to follow method of standardization by contending that Regulations were not required to be framed in this behalf. I have no hesitation to hold that having regard to the provisions contained in Section 22(xix) read with Section 54(c) of the Act, the policy decision to follow the standardization method was required to be incorporated in a Regulation framed in the manner specified by Section 55 of the Act in order to be enforceable. Without framing appropriate Regulations, the University erred in following the method of standardization. True it is that non-framing of appropriate Regulations is not a ground of attack in the writ petition but that does not absolve the Syndicate to act in terms of the statute to which it owes its existence.
Taking a wholesome view of the matter, I have no hesitation to hold that the University, a centre for advancement of learning, has acted ultra vires in denying the petitioners admission. Instead of promoting excellence, it has sought to denigrate the merit of the ten petitioners and possibly other students like them and has acted so illegally, unreasonably and arbitrarily in the present matter and in clear violation of Article 14 of the Constitution that its actions are clearly unsustainable in law.
For the reasons aforesaid, the writ petition succeeds. All the ten petitioners are, therefore, entitled to be admitted in the respective courses of their choice. However, since classes have already commenced and in view of the submission made on behalf of the University today that it has adequate infra-structure to accommodate them without difficulty, I am not inclined to disturb the admission of those students studying respective courses of study, who secured lesser marks than the ten petitioners in the Under-Graduate examinations. If an approach is made by the petitioners by Wednesday next with a photocopy of the operative part of this order, the University shall take necessary steps without any delay to admit them.
I am also of the considered view that the petitioners are entitled to costs. Initially I had thought of directing the members of the Syndicate to personally bear the costs to be imposed. However, considering the appeal made by Mr. Sengupta that the members of the Syndicate may be spared for no malice has been attributed to them and they are not parties to the petition, I direct that the University shall not charge tuition fees from any of the ten petitioners during the first year of their study. This would be just dessert for them after the uncalled for legal battle with the University.
Before parting, a word of caution for those at the helm of affairs of the University must be sounded. The fact that students would be graduating from the College this year was known to the University in 2006 itself when autonomy was granted. Why the University did not conduct a competitive examination for admission to the Post-Graduate courses this year (although it intends to do so from the next year) could not be explained at all by Mr. Sengupta. Had such examination been conducted, no one could have possibly raised a finger. That apart, Regulations which ought to be framed by the Syndicate in terms of the Act for discharging their statutory obligations do not appear to have been framed. The apathy that has been noticed is hardly expected from an esteemed educational institution like the University. In terms of the guidelines, the focus of the University ought to be to bring more autonomous colleges under its fold. If, however, step-motherly treatment is meted out to autonomous colleges by the University, I wonder whether there would at all be takers of autonomy. Even if there be, a meritorious student would obviously feel disinclined to have his marks standardized and thereby jeopardize his future prospects. Ultimately, no one would be interested in taking admission in the autonomous colleges. The University must realize that an autonomous college is as much its baby as any other affiliated college directly under its control. It is high time that the members of the Syndicate wake up from their slumber, leave their archaic thoughts behind and do something constructive for the better interest of the students at large instead of taking retrograde steps to undermine the reputation of reputed colleges like the College.
Copies of the records (five documents) produced on behalf of the University, duly countersigned by the Assistant Court Officer, shall be retained with the records.
Photocopy of the operative part of this order, duly countersigned by the Assistant Registrar (Court), be furnished to the learned advocates for the petitioners and the University on the usual undertaking.
Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefor. (DIPANKAR DATTA, J.)