Thufail & Anr vs University Of Delhi & Ors on 17 July, 2015

[Cites 2, Cited by 1]

Delhi High Court

Thufail & Anr vs University Of Delhi & Ors on 17 July, 2015

Bench: Rajiv Sahai Endlaw

*IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 17th July, 2015
+ W.P.(C) No. 6282/2015
THUFAIL & ANR ..... Petitioners
Through: Mr. Deepak Prakash, Ms. Shruti
Srivastava & Mr. Venkat, Advs.
Versus
UNIVERSITY OF DELHI & ORS ..... Respondents
Through: Mr. Ankur Chhibber, Adv. for R-1.
Mr. Jogy Scaria, Adv. for R-2.
AND
+ W.P.(C) No. 6325/2015
AAKANKSHA ..... Petitioner
Through: Mr. Bharat Bhushan Jain, Adv.
versus
UNIVERSITY OF DELHI AND ANR. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. S.S. Ahluwalia, Adv. for R-2.
AND
+ W.P.(C) No.6337/2015

AAKASH ..... Petitioner
Through: Mr. Bharat Bhushan Jain, Adv.
Versus
UNIVERSITY OF DELHI & ANR ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. S.S. Ahluwalia, Adv. for R-2.
AND

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 1 of 44
+ W.P.(C) No.6362/2015
SAUMYA ARYA & ORS. ..... Petitioners
Through: Mr. Tanmay Mehta, Mr. Anunaya
Mehta & Mr. Nikhil Palli, Advs.
Mr. Deepak Prakash, Ms. Shruti
Srivastava & Mr. Venkat, Advs. in
CM No.11797/2015.
versus
MIRANDA HOUSE & ORS. ..... Respondents
Through: Mr. Ankur Chhibber, Adv. for R-1.
Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. Dev. P. Bhardwaj, CGSC for
UOI.

AND

+ W.P.(C) No.6480/2015
AALOK KAMBOJ ..... Petitioner
Through: Ms. Shalini Kaul & Ms. Pushpinder
Singh, Advs.
Versus

SHRI VENKATESWARA COLLEGE & ORS ..... Respondents
Through: Mr. Rajinder Dhawan & Mr. B.S.
Rana, Advs. for R-1.
Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. Abhay Prakash Sahay, CGSC for
UOI.
AND
+ W.P.(C) No.6481/2015
ANKUR RAWAT & ANR. ..... Petitioners
Through: Mr. Deepkaran Dalal, Adv.
W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 2 of 44
Versus
UNIVERSITY OF DELHI & ANR. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
University of Delhi.
Mr. Ankur Chhibber, Adv. for
respondent no.2.

AND

+ W.P.(C) No.6657/2015 & CM No.12141/2015 (for stay)
RAVINDRA KUMAR & ANR. ..... Petitioners
Through: Mr. Deepkaran Singh Dalal and Mr.
Vivek Malik, Adv.
Versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
R-1/DU.
Mr. Ankur Chhibber, Adv. for
respondent no.2.

AND

+ W.P.(C) No.6658/2015 & CM No.12143/2015 (for stay)
MEENAL AGRAWAL & ANR. ..... Petitioners
Through: Mr. Akhand Pratap Singh, Mr.
Tungesh and Mr. Pravesh Sharma,
Advs.
Versus
UNIVERSITY OF DELHI & ANR. ..... Respondents
Through: Mr. Mohinder J.S. Rupal, Adv. for
R-1/DU.
Mr. Ankur Chhibber, Adv. for
respondent no.2.

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 3 of 44
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. All these petitions concern the following Clause in Annexure 1 to the

Notification dated 20th May, 2015 of the respondent University of Delhi

laying down the guidelines and schedule of admission to various

undergraduate courses for the academic session 2015-16.

"Admission to Science Courses
The Basis of Selection for Mathematical Sciences / Science / Home
Science courses remains unchanged. However the subjects to be
included for Basis of Selection (PCM/PCB/PCMB) must have at least
70% component of theory exams (theory exam does not include internal
assessment / continuous evaluation etc.) in the qualifying exam
otherwise a disadvantage of 10% of the maximum marks may be levied
on each such subject."

2. The petitioners in all the petitions are seeking admission to the

respondent University / its affiliate colleges on the basis of having cleared

qualifying examinations held by the Boards of Examination of different

States having less than 70% component of theory examination but

recognized by the respondent University as equivalent to the Senior

Secondary School Certificate Examination (SSSCE) (Class XII) held by the

Central Board of Secondary Education (CBSE). In accordance with the

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Clause aforesaid, the respondent University and its affiliate colleges have

levied a disadvantage of 10% on the petitioners and aggrieved wherefrom

these petitions have been filed.

3. Though the grounds on which the challenge is made may be different

in different petitions but having heard the petitions together and being of the

view that the Clause aforesaid, unless discretionary, as has also been

contended, has to be uniformly applied, it is not deemed appropriate to deal

with the challenge in each petition separately depending upon the grounds

taken therein. What is however important to note is that the petitioner in

W.P.(C) Nos.6362/2015, 6657/2015, 6480/2015, 6658/2015, 6337/2015 &

6325/2015 were granted admission in the affiliate colleges but which

admissions were subsequently cancelled, citing the aforesaid clause and

stating that the admissions granted were in ignorance and violation thereof.

4. Since the admissions to the respondent University and its affiliate

colleges are underway and calling for counter affidavits would have made

the petitions infructuous and any interim order reserving seats for the

petitioners would also have interfered with the admission process in general

and affected large number of other admission seekers, with the consent of

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 5 of 44
the counsels the matters were heard without counter affidavits. It may

however be noticed that while issuing notice of W.P.(C) No.6362/2015 on

4th July, 2014 the operation of the letters dated 1 st July, 2015 of cancellation

of admission of six petitioners therein was stayed and Miranda House

College, respondent therein, restrained from filling up the seats against

cancelled admissions.

5. At one stage of the hearing, on enquiry being made as to the authority

/ power of the University to issue the Notification aforesaid, the counsels for

the petitioners had contended [though no such plea / ground was / is taken in

the writ petitions] that the respondent University had no authority to issue

the said Notification but upon it being pointed out that in that event the

entire admission process to the undergraduate courses for the academic year

2015-16 would be bad, the counsels gave up / waived the said ground and

did not press the same.

6. At the same stage it was also enquired as to how these petitions, if

challenging the vires of the clause aforesaid, were maintainable before this

Bench and would not the same, as per Roster of this Court, be entertainable

by the Division Bench. However the Registry of this Court has drawn

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attention to the Listing Guidelines dated 31st January, 2013 to the effect that

writ petitions challenging any Policy, Scheme or Guidelines are to be treated

as not constituting a challenge to the vires of the Act, Rules or Regulations.

7. The counsels for the petitioners have contended:

(i) that the respondent University having prescribed the SSSCE

(Class XII) of the CBSE or an „examination recognized as

equivalent thereto‟ as the qualifying examination for the

purpose of admission to the first year of undergraduate courses

of the respondent University and its affiliate colleges and

having recognized the examinations of the different State

Boards which the petitioners have passed as equivalent to the

SSSCE (Class XII) of CBSE, cannot undo the said equivalence

by levying a disadvantage of 10% of the maximum marks, as

has been done by the impugned clause;

(ii) that the Clause aforesaid by use of the word „may‟ vests a

discretion in the affiliate colleges of the respondent University

to levy or not to levy the disadvantage of 10% of the maximum

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 7 of 44
marks and the said clause cannot be said to be mandatory or

binding on all the affiliate colleges;

(iii) that the affiliate colleges of the respondent University who have

granted admissions to the petitioner in W.P.(C) Nos.

6362/2015, 6657/2015, 6480/2015, 6658/2015, 6337/2015 &

6325/2015 have thus exercised and / or are deemed to have

exercised the discretion not to levy the said disadvantage of

10% and having once waived the said Clause cannot as an

afterthought apply the same and cancel the admissions already

granted;

(iv) that the admissions already granted cannot be cancelled as no

fault is attributable to the students and the mistake even if any

is of the affiliate colleges;

(v) that the petitioners who have been granted admission, have on

the basis thereof changed their position and have not availed of

opportunities then available for admission to other universities

and the affiliate colleges of the respondent University are now

estopped from contending to the contrary and cancelling the

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admissions; reliance is placed on Ruchika Duggal Vs. AIIMS

2012 SCC Online Del 208 LPA No.470/2012 preferred

whereagainst was dismissed by the Division Bench on 4th July,

2012;

(vi) that the aforesaid Clause even if mandatory and binding on all

the affiliate colleges of the respondent University, is applicable

only to the internal assessment / continuous evaluation

component of the examination and if the same is 30% or less,

the said Clause has no application; it is argued that the marks of

the practical examination which are assessed not by internal

examiners but outside examiners would have to be counted in

theory examination;

(vii) that the aforesaid Clause amounts to impermissible

discrimination based on region;

(viii) that the aforesaid Clause in effect ousts the students, who

though have qualified an examination recognized as equivalent

to the CBSE (Class XII) examination, from admission to

respondent University inasmuch as with the prevalent state of

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 9 of 44
cut offs, with a disadvantage of 10% no admission can possibly

be expected; the Courts cannot be oblivious of the said effect of

the Clause;

(ix) that the Scheme of Examination is in the hands of the State

Boards and the students have no control thereover and cannot

be made to suffer for the State Board Examinations which they

have qualified having a theory component of less than 70%;

(x) that the aforesaid Clause is arbitrary in as much as it though on

the one hand lays emphasis on the result of theory examination

by levying a disadvantage of 10% on students whose qualifying

examination has less than 70% component of theory

examination and on the other hand ousting as aforesaid from

admission a student who though may be having 100% marks in

the theory examination, even if component thereof is of less

than 70%;

(xi) that the aforesaid clause has to be interpreted as vesting a

discretion in the affiliate colleges to admit such students who

notwithstanding the theory component of the examination being

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 10 of 44
less than 70%, have secured cent percent or high marks therein

or in whose marks in theory and in practical or in continuous

evaluation, there is no huge difference;

(xii) that in Science courses to which the aforesaid Clause is

applicable, a practical examination conducted by an outside

agency is also a test of knowledge and the levying of

disadvantage for a more than 30% component of practical

examination is arbitrary; reliance in this regard is placed on

Francisco D Luis Vs. Director, Board of Secondary and

Higher Secondary Education and the State of Maharashtra

2008 LawSuit (Bom) 3400 and on the final report on Quality in

School Education prepared by the Institute for Studies in

Industrial Development for Quality Council of India;

(xiii) that the respondent University, being a Central University,

cannot give preference to the CBSE Board and discriminate

against other Boards;

(xiv) that the aforesaid Clause ought to be interpreted at best as

excluding the marks of internal assessment and / or continuous

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 11 of 44
evaluation and not marks of practical examinations held in

Science subjects and which practical examinations marked by

external examiners and not by the schools in which the

petitioners have studied; owing to involvement of an outside

agency, there is no scope of favoritism in the marking in the

practical examination;

(xv) that the other State Universities are treating the CBSE at par

with the State Boards of examination and the situation has to be

the same all over;

(xvi) that there is no basis for adopting the pattern of CBSE as the

criteria;

(xvii) that even if it were to be held that the respondent University has

a valid basis for judging the merit of the candidates on the basis

of result the theory examination only, even then the solution

applied thereto of levying a disadvantage of 10% of the total

marks on the student in whose qualifying examination the

component of theory is less than 70% is arbitrary and bears no

rational nexus to the object sought to be achieved; it would be

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 12 of 44
understandable if the respondent University judges the

comparative merit on the basis of the marks secured in the

theory paper, by treating the component thereof whether of 70%

as in CBSE or of 60% or 50% as in some other qualifying

examinations subject matter of these petitions, as 100%;

alternatively it is suggested that the deduction should only be

from the marks in internal assessment or continuous evaluation

or in practicals by 10%, and by not levying deduction of 10% of

the total marks; yet alternatively it is suggested that a formula

for giving equivalent weightage should be devised (I may

notice that this argument has been raised only by the counsel

for the petitioners in W.P.(C) Nos.6325/2015 and 6337/2015

but was subsequently adopted by other counsels as well);

8. I may notice that applications for impleadment have been filed in

W.P.(C) No.6362/2015 and in W.P.(C) No.6282/2015 by candidates

claiming to be similarly placed as the petitioners therein and claiming the

same relief.

9. The counsels for the respondent University argued:

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 13 of 44
(a) that all the petitions do not even challenge the validity of the

Clause and the challenge in W.P.(C) Nos.6325/2015 and

6337/2015 is not even to the current notification but to the

notification of the previous year though identical.;

(b) it is not as if the aforesaid Clause has been sprung as a surprise

on the students; it was in force in the previous year as well and

is also contained in the Bulletin of Information for Admission

to Undergraduate Courses for the academic session 2015-16

released by the respondent University as far back as on 19 th

May, 2015;

(d) the first of such challenges in these petitions came up before

this Court only on 30th June, 2015 i.e. after the first list of cut

off marks for admissions had been released on 25th June, 2015

and admissions pursuant thereto been made; on 30th June, 2015,

the second list of cut off marks had been released and

admissions pursuant thereto also have been completed; that the

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third list of cut off marks also stands released on 4th July, 2015

and admissions in pursuance thereto also stand completed;

(e) any interference with the Clause aforesaid at this stage would

create chaos, unsettling the entire admission process and would

require the entire process of admissions to begin afresh,

delaying the commencement of the academic session;

(f) that there are 45 different Boards of Examination in the country

and each of which follows its own pattern, with the component

of theory examination varying from 20% to 70%;

(g) that in comparison, CBSE, even in subjects of Music and

Painting has a theory component of 60% -- the disadvantage of

10% in terms of aforesaid Clause is applied even to those

though passing CBSE examination but in the said subjects

having a theory component of less than 70%; it is thus not as if

the respondent University gives preference in any manner to the

CBSE; the respondent University is applying the aforesaid

Clause uniformly;

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 15 of 44
(h) because of such disparity in the different Boards of

Examination, it becomes essential for the respondent University

to adopt such a criteria;

(i) that the criteria of CBSE of 70% component of theory in most

of its subjects has been accepted because CBSE conducts

examinations all over the country and has the widest spectrum

in comparison to the State Boards of Examination;

(j) that the respondent University cannot possibly be expected to

harmonize the pattern of examination of all the Boards and has

to necessarily evolve its own method;

(k) reliance is placed on para 6 of Anvita Singh Vs. Union of India

2012 III AD (Delhi) 133 to contend that the possibility of abuse

is no ground to set aside the otherwise valid criteria adopted;

(l) that the petitioners having participated in the selection process

on the basis of the Bulletin of Information aforesaid are now

not entitled to challenge any clause thereof;

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(m) that the Clause ought not to be quashed and the selection

criteria adopted ought not to be set aside at this stage when

most of the seats in the respondent University and its affiliate

colleges have already been filled up and the admittees whereto

would be affected by the said outcome, at least without

impleading them;

(n) that there is an intelligible rationale to the aforesaid procedure

adopted; it is common knowledge that the results of internal

assessment / continuous evaluation or of practical examinations

even if with outside examiners cannot be said to be totally

objective and element of subjectivity is bound to and definitely

creeps in therein;

(o) that the argument, that the Clause aforesaid does not exclude

practical examination and only excludes internal assessment

and continuous evaluation, is contrary to the emphasis therein

by use of the words "must have at least" and of the phrase

"theory exams" which has a definite connotation and which is

understood as excluding practical examination;

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 17 of 44
(p) that the word "may" in the aforesaid Clause has to be read as

"shall"; finding that some of the affiliate colleges were making

admissions in contravention thereof, a letter dated 29 th June,

2015 by the Dean Students‟ Welfare Office of the respondent

University was also issued informing the colleges to enforce the

said Clause; the colleges thus do not have a discretion to apply

or not to apply the aforesaid Clause;

(q) that the respondent University has a centralized process for

admission to undergraduate courses in its affiliate colleges and

the Clause aforesaid being contained in the Bulletin of

Information published by the respondent University, the

contention that the affiliate colleges have a discretion to apply

or not to apply the aforesaid Clause is misconceived;

(r) it is the respondent University which has been announcing the

cut off marks for admissions at the successive stages and the

role of the affiliate colleges is confined merely to admitting

students having marks above the said cut off;

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 18 of 44
(s) Guideline 4 in the Notification dated 20th May, 2015 (supra)

also provides "There shall be no „Additional Eligibility

Criterion‟ for any category in any college / course" - this

Clause is not under challenge;

(t) it is not as if the impugned Clause or the Notification dated 20 th

May, 2015 (supra) of which it is a part has been issued without

deliberation; in view of the complaints of disparity in the

examinations held by different State Boards, the respondent

University constituted a Committee of 30 Experts including

members of Administrative Council and Executive Council,

headed by Justice (Retd.) S.K. Aggarwal and which Committee

submitted its report on 30th March, 2014 and which report was

accepted by the respondent University in April, 2014 and

whereafter the identical Notification for the academic year

2014-15 was issued;

(u) it is settled principle of law that the decision of the Academic

Experts who have devised academic / educational policy after

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deliberation, should not be interfered with merely because

another view may be possible;

(v) attention is invited to the Guidelines contained in Ordinance II

of the respondent University to contend that the eligibility

conditions prescribed by the respondent University for

admission and selection of candidates are binding on the

affiliate colleges;

(w) attention is invited to paras 31 to 33 and 53 of Dr. Vibha Jain

Vs. The Director National Board of Examination

MANU/DE/7380/2007 to contend that allocating high

percentage of marks to viva voce for admission to

undergraduate courses should be avoided as there is a certain

amount of arbitrariness which may lead to frustration of the

very object of selection and disrepute the system;

(x) that the admission of the petitioners who were mistakenly

admitted in violation of the aforesaid Clause, was cancelled

immediately within one to seven days of admission and the

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students asked to take back their original documents, for using

the same for admission to other courses at other places;

(y) attention was invited to the Handbook of Information for the

year 2015-16 published by Dayal Singh College (respondent in

W.P.(C) No.6337/2015 and W.P.(C) No.6325/2015) to show

that the admissions granted in any case were provisional, till

verification of documents;

(z) that the reliance placed by the counsel for the petitioner in

W.P.(C) No. 6282/2015 on Francisco D Luis (supra) is entirely

misplaced inasmuch as the same is merely an order of reference

to a third Judge, on a dichotomy of opinion of the Judges of the

Division Bench;

(aa) that all the petitioners are from outside Delhi; admissions to

colleges / universities in other States are still open; it is thus not

as if even those petitioners who were wrongly admitted and

whose admissions have since been cancelled will end up losing

one year; it is just that they would not be able to get admission

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to the respondent University which appeared to be their first

choice; and,

(bb) reliance is placed on Arpit Singh Vs. GGSIU 184 (2011) DLT

119 to contend that misplaced sympathy with the students

should not be a ground to interfere with the decision of the

academic experts.

10. The counsels for the respondent Colleges have adopted the arguments

of the respondent University.

11. The counsels for the petitioners in rejoinder have argued, (i) that the

arguments of the counsel for the respondent University of selected

candidates being not before this Court does not apply to students who were

admitted and whose admissions have been thereafter cancelled; (ii) that in

the impugned clause, the expression "must have" is viz-a-viz the 70%

component of theory but the expression "may be" is used before providing

for the levy of 10% disadvantage; thus though the component of 70% in

theory is a must for admission at par with CBSE but the levy of 10%

disadvantage has been left to the discretion of the college; (iii) that the

argument of delay and laches also cannot be applied viz-a-viz the petitioners

W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 22 of 44
who were granted admission and whose admission has subsequently been

cancelled in as much as the cause of action to them accrued only when the

colleges as an afterthought cancelled the admission and immediately

whereafter this Court has been approached; attention is invited to the

Admission Brochure for the year 2015-16 of Miranda House College where

the admission granted is not shown as provisional but it is rather stated that

the admission is complete on payment of fees, issuance of role number and

identity card and all of which has been done; (iv) that the last date for

applying for admission to Kurukshetra University is already over; (v) that it

has been held by this Court in Ruchika Duggal Vs. AIIMS that for a default

of the institution, the student should not be made to suffer; (vi) that there is

no uniformity in the criteria for admission in all the colleges and each

college has its own criteria of admission; and, (vii) that the modern view is

that theory examination cannot be the only basis of examination, specially in

Science subjects.

12. The counsel for the respondent University has added that the

admissions being centralized, the colleges are not even required to publish

their prospectus. Attention has also been drawn to Ordinance- XVIII Clause

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6-A (5)(a)(v) and 6-A (5)(b)(ii) to contend that the criteria for admission

prescribed by the respondent University is binding on the affiliate colleges.

13. I have weighed the rival contentions and am unable to agree with the

counsels for the petitioners for the reasons following:-

A. The applicants for admission to the respondent University and /

or its affiliate colleges are deemed to be aware of the contents

of the Information Bulletin 2015-16 for admission to

undergraduate courses, listing the courses offered for

admission, requirements for admission, qualifying examination,

age requirement, equivalence criteria, grade conversion and

procedure for calculation of „Best of Four‟ (admission to

Science courses). There is no reason to disbelieve the stand of

the respondent University and the colleges that the impugned

clause is also to be found in the Information Bulletin on the

website of the respondent University.

B. The petitioners are thus deemed to have applied for admission

to the respondent University and its affiliate colleges with

knowledge of the aforesaid clause i.e. of levy of disadvantage

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of 10% of the total marks while considering them for

admission.

C. The cut-off marks above which admissions are made to the

respondent University and its affiliate colleges in the previous

year / s are widely reported in the news media. The petitioners

themselves have admitted that with the levy of the 10%

disadvantage, they would possibly have no chance of admission

and would be ousted from admission in the respondent

University and its affiliate colleges. The petitioners thus, at the

time of applying for admission, with the knowledge of the cut-

off marks of previous year and of the clause aforesaid, are

deemed to have merely taken a chance while applying for

admission to the respondent University and its affiliate colleges.

D. When the petitioners are found to have taken a chance, they

cannot in any way be said to be sufferers, upon failing such a

chance.

E. The Supreme Court in Madan Lal Vs. State of J& K (1995) 3

SCC 486 held that when a candidate who takes a calculated

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chance to get himself / herself selected without protesting

against the procedure therefor, cannot, when ultimately fails

therein turn around and challenge the procedure. Again, in

Manish Kumar Shahi Vs. State of Bihar (2010) 12 SCC 576 it

was held that such conduct of a petitioner, of taking a chance,

disentitles him / her from invoking the jurisdiction under

Article 226 of the Constitution of India and the High Court

should refuse to entertain the writ petition. The same view has

been reiterated recently in Ramesh Chandra Shah Vs. Anil

Joshi (2013) 11 SCC 309 and followed by a Division Bench of

this Court recently in Rajesh Kumar Vs. State Bank of India

MANU/DE/0310/2015.

F. No merit is found in the contention of the petitioners, of being

under the impression that the impugned clause was directory

and not mandatory. The argument, that owing to the use of the

word "may, the clause has to be read as directory and not

mandatory, is an argument of law which has been taken in the

Court of law and it is not the case of any of the petitioners that

they or any of them prior to deciding whether to apply for

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admission or not obtained any legal opinion as to the

interpretation of the said clause. It is also not the case of any of

the petitioners that they, before applying for admission, made

any queries from the respondent University or any of the

colleges whether they intended to apply the said clause or not.

G. Even if the argument of the petitioners, that they believed the

said clause to be directory, is to be accepted, their applying for

admission would still remain a chance in as much as even as

per their case it was up to the colleges to apply or not to apply

the said clause. It is not the case of the petitioners that they

received confirmation from any of the colleges that the

impugned clause will not be applied.

H. Supreme Court in Dr. Preeti Srivastava Vs. State of Madhya

Pradesh (1999) 7 SCC 120 held that the criteria for selection of

candidates has an important bearing on the standard of

education. The contention that the rules for admission do not

have any bearing on the standards was negatived. Similarly a

Division Bench of which the undersigned was a Member in

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Siddharth Kaul Vs Guru Gobind Singh Indraprastha

University MANU/DE/6677/2011 also observed that a

University is always entitled to set higher bench mark and it is

not without any reason that a handful of universities of the

world qualify to be in the Ivy League. I have similarly in

Gitarattan Institute of Advanced Studies and Training Vs.

Director Higher Education MANU/DE/2730/2010 also

elaborately dealt with the role of the university and held that

eligibility for admission has a connection with the standard of

education and prescription of standards of education is always

accepted to be an appropriate exercise of power by the bodies

such as the universities granting affiliation.

I. Look at this perspective also, there is nothing strange in the

respondent University prescribing the mode of selection for

admission to undergraduate courses in Science and there was no

scope for anyone to believe that the affiliate colleges were free

to follow their own selection criteria.

J. It cannot be lost sight of that the admissions to the respondent

University and its affiliate colleges were centralized, with a

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single admission form prescribed by the respondent University

being required to be filled and with the students being not

required to at all approach the affiliate colleges for admission.

Once the admissions are found to be centralized, with common

rules for admission to all the affiliate colleges being laid down,

no reasonable person could have formed an opinion that the

aforesaid clause is not mandatory but directory.

K. All the affiliate colleges of the respondent University also have

understood the impugned clause as mandatory and not as

directory. Though some of them made admissions in

contravention thereto but immediately upon the mistake being

pointed out, not only admitted the mistake but also cancelled

the admissions made in contravention thereof.

L. There is no reason to prefer the understanding of the students‟

seeking admission of the said clause, over the understanding of

the respondent University and the affiliate colleges, of the

selection criteria prescribed.

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M. No inconsistency is found in the impugned clause and in the

clause in the prospectus / information bulletin providing that

the qualifying examination for the purposes of admission shall

be Senior Secondary School Certificate Examination (Class

XII) of the CBSE or an examination recognized as equivalent

thereto. Recognition by the respondent University of the Senior

Secondary School (Class XII) examination held by the State

Boards as equivalent to that held by CBSE and the resultant

recognition by the respondent University of the said State

Board examination as qualifying examination for admission to

undergraduate course in the respondent University and its

affiliate colleges does not in any manner prevent the respondent

University from laying down the admission criteria. While one

is a matter of eligibility for admission, the other is a process for

selection from amongst all eligible. Mere adoption by the

respondent University, for the purpose of selection criteria, the

percentage of theory component in an examination as that

prescribed by CBSE for most of the subjects does not mean that

the respondent University is tinkering with the recognition of

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examination held by State Boards as equivalent to that held by

CBSE. The impugned clause, neither is with reference to

examinations held by State Boards only nor is it the case of the

petitioners that the same is not applied to CBSE examination

even if having component of less than 70% in theory. On the

contrary, it is the un-rebutted stand of the respondent University

that the said clause is uniformly applied. There is thus no merit

in the contention that the impugned clause is contrary to the

clause making the examination conducted by the State Boards

equivalent to the (Senior Secondary School Certificate

Examination of the CBSE).

N. A challenge to a clause on the ground of arbitrariness and

unreasonableness, within the meaning of Article 14 of the

Constitution of India, cannot be adjudicated without inviting

counter affidavits. The said position, during the course of

hearing was made known to the counsels for the petitioners and

an option was given to them to, if press for a finding thereon,

agree to opportunity for filing counter affidavits to the

respondent University and the affiliate colleges. However for

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the sake of expediency, since owing to the delay in decision, the

petition would have become infructuous, they agreed to this

Court not rendering any definite judgment on the said

arguments.

O. However on the prima facie view of the matter, no arbitrariness

is found in the decision of the respondent University to provide

for levy of disadvantage on the results of an examination, the

component of theory wherein is less than 70%.

P. It is for this reason only that the Courts, as noticed in Ashok

Kumar Yadav Vs. State of Haryana (1985) 4 SCC 417 held

that allocation of 22.2% marks for viva voce test, though

conducted by external agencies, was excessive and

unreasonably high, tending to leave room for arbitrariness. In

Vishnu Biswas Vs. Union of India (2014) 5 SCC 774 also, it

was also observed that the Courts have always frowned upon

prescribing higher percentage of marks for interview even

when the selection has been on the basis of written test as well

as interview. This is more so, for purpose of admission in an

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educational institution. Reference in this regard may also be

made to Minor A. Peeriakaruppam Vs. Sobha Joseph (1971)

1 SCC 38 observing that even when the interviews are

conducted by impartial or competent person on scientific lines,

very many uncertain factors like the initial nervousness on the

part of some candidates, the mood in which the interviewer

happens to be and the odd questions that may be put to the

persons interviewed may all go to affect the result of the

interview.

Q. Notice may also be taken of Maharashtra University of

Health Sciences Vs. Paryani Mukesh Jawaharlal (2007) 10

SCC 201 where the contention of the University, that the

intention of the Regulation Making Authority was to give the

dominant and pre-eminent position to the examination where

students are assessed by external examiners in an objective

manner and that in an internal assessment, an element of

subjectivity is likely to creep in and thus the weightage to be

given to internal assessment has to be restricted, was accepted.

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R. It cannot also be lost sight of that not only the schools compete

with each other for best results but even the Boards of

Examination aspire to produce the best of the results, in a game

of upmanship, and all of which results in the examiners desiring

to, wherever possible, award high marks in internal assessment

/ continuous evaluation / practical marks. It is thus only the

examination in theory, in which the identity of the examinee is

not disclosed to the examiner, that objectivity in result can be

achieved.

S. There cannot thus be said to be any arbitrariness in the decision

of the respondent University to, while selecting from amongst

eligible candidates, levy a disadvantage on the scores of

candidates the qualifying examination taken by whom had a

component of theory of less than 70%.

T. Even otherwise this is a decision of the academic / educational

experts and with which it is the settled principle of law, the

Courts would not ordinarily interfere.

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U. Supreme Court, in Sanchit Bansal Vs. The Joint Admission

Board (2012) 1 SCC 157, observed that the process of

evaluation and selection of candidates for admission with

respect to their performance, process of achieving the objective

of selecting candidates who will be better equipped to suit the

specialized courses, are all technical matters in academic field

smf the Courts will not interfere in such processes.

V. There is however some merit in the contention that the formula

adopted by the respondent University in the aforesaid clause to

levy a disadvantage is arbitrary. Prima facie merit is found in

the contention of the counsels for the petitioners in W.P.(C)

No.6325/2015 and W.P.(C) No.6337/2015 that even if the

marks scored in internal assessment / continuous evaluation /

practical examination are to be disregarded, levy of

disadvantage of 10% of the total marks works injustice to the

students whose qualifying examination has less than 70%

component of theory. Again, it prima facie appears, that such

students should be graded on the basis of the marks scored by

them in theory examination even if component thereof is less

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than 70% but which theory examination the respondent

University itself treats at par with the theory examination of the

CBSE. However as aforesaid, in the absence of counter

affidavits and which owing to the urgency expressed were not

called for, no definite finding in this regard can be returned.

We, in the absence of counter affidavits, do not know the

conditions which prevailed with respondent University in

devising the criteria so. The Supreme Court in Union of India

Vs. Shah Goverdhan L. Kabra Teachers' College (2002) 8

SCC 228 held that Courts, before interfering, have to give due

weightage to the reasons which prevailed with the experts.

Without counter affidavits, we do not know such reasons. All

that can be done is to direct the respondent University to at least

three months before the commencement of admissions for the

next academic session, re-consider the said aspect and to

publically announce its decision thereon including by

communicating it to the various State Boards of Examination

for further dissemination to the students who would be eligible

and aspiring for admission in the next academic year.

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W. The argument raised by petitioners, of estoppel is also

misconceived. For a plea of estoppel to succeed there has to be

first a representation as to a certain state of affairs. It is not the

case of petitioners that the University or colleges represented

that the clause aforesaid would not be applied. The plea of the

petitioners, of their having interpreted and understood the

caluse so has already been negatived above.

X. A Division Bench of this Court in Siddharth Kaul (supra) also

held that mere payment of fee would not create any rights in

favour of students and that the principle of estoppel do not arise

when the petitioners are fully aware of the situation. Notice

may also be taken of National Board of Examinations v. G.

Anand Ramamurthy (2006) 5 SCC 515 laying down that the

principle of legitimate expectation has no application in such

matters.

Y. There is similarly no merit in the argument, of the impugned

clause discriminating one region from another. There is no

discrimination without showing that the persons discriminated

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against are equally situated. Candidates who have scored high

marks owing to an element of subjectivity in the qualifying

examination which they have passed cannot be said to be

similarly placed as candidates who have passed their qualifying

examination with a lower element of subjectivity. Moreover, as

aforesaid, the impugned clause is applied uniformly, even to

subjects of CBSE having less than 70% component in theory.

Even otherwise, Universities, as institutions of learning, are

entitled to lay down the criteria for selection of their students

and which criteria owing to vastness of the country and the

different Boards of Examination cannot possibly be uniformly

applied to all.

Z. That brings me to the students who were mistakenly admitted

by the colleges and whose admissions have been cancelled.

After giving considerable thought to the said cases I am of the

view that no special class of such students can be carved out, by

allowing their admissions to stand inspite of otherwise

dismissing the petitions. It cannot be lost sight of that they took

a chance as aforesaid. It cannot thus be said that they are

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innocent or have been entrapped. It cannot also be lost sight of

that their admissions are illegal and contrary to the eligibility

criteria prescribed by the respondent University. An admission

to an educational institution which is contrary to the conditions

prescribed therefor, is illegal and void and does not vest any

right in the student who has been so admitted. Supreme Court,

in State of Orissa Vs. Mamta Mohanty (2011) 3 SCC 436 held,

though in the context of appointment but also discussing

admissions in the field of education, that if a candidate does not

fulfill the criteria, the appointment is void and cannot be

regularized.

ZA. If we were to hold that an admission contrary to the Rules &

Regulations governing the same and which is thus illegal, once

effected vests a right in the student who has been so admitted, it

can lead to grave consequences. Admissions are generally and

largely conducted by the clerical and administrative staff of the

colleges and University. The possibility of the said staff or even

of lecturers and professors of the University making an

admission which ought not to have been made, and which

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admissions are highly coveted, with the intent of vesting a right

in a student so wrongly admitted cannot be ruled out.

ZB. It cannot also be lost sight of that such wrongful admission is

always to the prejudice of a candidate who is rightfully entitled

thereto and whose career may be marred on being deprived

thereof. The Court cannot be blind to the fate of such deprived

student. For this reason, a myopic view of the plight of the

petitioners whose admission is cancelled, cannot be taken.

ZC. It cannot also be lost sight of that the petitioners wrongfully

admitted and whose admission on detection of wrong has been

cancelled, are themselves contributory to the commission of

wrong. They, as aforesaid, were aware or are deemed to be

aware of the clause aforesaid and ought not to have approached

the colleges for admission claiming to have marks above the cut

off announced, without levying the disadvantage prescribed.

The colleges proceeded to admit them presuming that they were

rightly claiming to have above the cut off marks prescribed.

Had the said petitioners levied the disadvantage prescribed,

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they could not have claimed having above the cut off marks

announced.

ZD. I am even generally of the opinion that a time has come for our

country to strictly enforce rules and regulations, the challenge

to validity whereof is negatived, and not allow deviations

therefrom on any account whatsoever. Till now, not only the

authorities concerned but also the Courts have been liberal in

allowing such deviations, in the name of justice, to avoid

hardship, doing equity, estoppel, special case, position having

become irreversible and the like. It is not as if this trend was

without any cause. We were a nascent democracy with long

lineage of servitude to foreign rule and a new set of laws, rules

and regulations and a large illiterate population not well versed

in exercising their rights and options. Most of the other legal

systems of the world are not found to be exercising such powers

of grant of relief or concession inspite of not finding the

petitioner entitled thereto under the laws, rules and regulations.

However, now there is no need for continuing this practice,

particularly where highly literate students with more literate

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parents guiding them are competing for admission to elite

educational institutions. Non-enforcement of laws, rules and

regulations and frequent deviations therefrom, in my view, has

led to the country having a weak governance and rule of law

and which appears to be the root cause of all the maladies

facing the country. A student, who inspite of being not entitled

to admission is allowed to retain the admission wrongly given

to him and to which wrong he himself also is a contributory,

will grow into a citizen with this understanding only of the

country and its administration and in whatever vocation he / she

chooses, continue to be guided by this philosophy only that

whatever is achieved, even if by hook or by crook,, cannot be

taken back from him. It is such frequent application of

considerations of mistake and the consequent injury on account

thereof for allowing deviations from laws, rules and regulations

which has led a large section of the population to repeatedly

and intentionally commit mistakes, knowing that the action

mistakenly done would attain permanence. The same can no

longer be permitted.

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ZE. Even otherwise it is settled principle of law that a person who is

equally guilty of the illegality or mistake committed

cannot be permitted to derive any advantage thereof. The

petitioners were aware and / or are deemed to be aware of their

having no chance of admission owing to levy of the

disadvantage aforesaid. They, at the earliest did not say that the

said disadvantage ought not to be levied on them. They now

cannot be heard to say that admission wrongly or mistakenly

granted to them should be sustained.

ZF. There is yet another aspect. Having held the petitioners not

eligible to admission and having been wrongly admitted, no

direction to the respondent University to, in contravention of its

rules aforesaid, not cancel the admission, can be issued.

Supreme Court, in Maharishi Dayanand University Vs. Surjeet

Kaur (2010) 11 SCC 159 reiterated that the High Courts, under

Article 226 of the Constitution are required to enforce rule of

law and not pass order or direction which is contrary to what

has been injuncted by law, rules and regulations.

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14. All the petitions are accordingly dismissed. The interim order granted

in WP(C) No. 6362/2015 is vacated. Though the interim order as aforesaid

was only in WP(C) No.6362/2015, it is further clarified that whichever

respondent Colleges have not made admissions against the admissions which

have been cancelled and which cancellations were impugned in these

petitions, shall now be entitled to do so. A direction is however issued to the

respondent University to reconsider the clause aforesaid in terms of para

13.V.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 17, 2015 „gsr‟ / pp W.P.(C) Nos. 6282/2015, 6325/2015, 6337/2015, 6362/2015, 6480/2015, 6481/2015, 6657/2015 & 6658/2015 Page 44 of 44

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