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Judgment
Aravind Kumar, J.—Petitioners are studying in different branches of diploma courses in respondent Nos. 3 to 17 colleges which are controlled by second respondent. Petitioners claim to have completed their course in fourth year diploma and were anticipating to be admitted to 5th Semester. Petitioners are seeking for quashing of circular dated 24.07.2012 Annexure-B issued by second respondent where under the carry over system to the next Semester is permitted only in the event of candidates having not failed in more that eight subjects in previous Semester and are also seeking for a direction to continue the full carry over system as per circular dated 02.08.2010, Annexure-A.
Learned counsel for the petitioners and learned HCGP appearing for respondent Nos. 1 and 2 would fairly submit that similar writ petitions were filed respondents would fairly submit that similar writ petitions were filed before Principal Bench at Bangalore and an order came to be passed on 10.09.2012 in W.P. Nos. 32330-437/2012 by receiving an affidavit filed by Sri S. Vijay Kumar, Joint Director (CDC), Department of Technical Education where under it was agreed to by the State in the said affidavit that respondents would promote/admit diploma students who have failed in 10 or less subjects in Semesters - I to IV and same would be applicable only for the academic year 2012-13 and for the academic year 2013-14 onwards, carry over system will be strictly in accordance with circular dated 01.08.2009.
Learned Government Advocate would fairly admit at this stage that affidavit of the Joint Director was filed in the said writ petitions before Principal Bench. He would hasten to add that one month has lapsed from the date of filing of said affidavit before the Principal Bench in W.P. Nos. 32330-437/2012 by Joint Director and petitioners having not approached this Court immediately even if relief is granted petitioners may not be entitled for taking up the examination of 5th Semester on account of paucity of attendance. In reply Sri. S.G. Math, learned counsel for petitioners submits that petitioners have already taken admission and are attending the classes. Said submission is placed on record.
For the purpose of reference and convenience, undertaking given by the Joint Director in the affidavit filed on 10.09.2012 in W.P. Nos. 32330-437/2012 made available by learned Government Advocate is extracted as under:
That all efforts required to enhance the limit of carry over from the permitted eight subjects for being promoted to Fifth Semester to ten subjects only for the academic year 2012-13 will be made from the Technical Department as a one-time measure under the prevailing facts and circumstances. Since a decision in this regard has been proposed with the consent of the Principal Secretary and Hon''ble Minister for Higher Education and on account of paucity of time, I hereby given an undertaking on behalf of the Respondents to promote/admit Diploma students who have failed in ten or less subjects in Semesters I to IV. It is hereby made clear this enhanced carry over facility will be applicable only for the academic year 2012-2013 and for the academic years 2013-14 onwards, the carry over system will be strictly in accordance with the Regulations appended to Government Order dated 01.08.2009.
To a pointed and repeated question to the learned counsel for petitioners by the Court to disclose as to who are all the petitioners who have failed in less than 10 subjects in previous semesters and students who have failed in more than 10 subjects, he has been unable to specify their names or place any material in this regard. Learned counsel would also plead his inability to produce the same. Said submission is placed on record. He would submit as under:
(i) that petitioners are from rural background and to cope up with higher standards of education, it will consume some time and number of subjects to be studied in first year diploma will be more and facilities provided at certain colleges are not up to standard and also that teaching faculty would not cover all the subjects within the period of a semester and as such, petitioners were not able to pass in all the subjects and as such, they should be allowed to carry over all the subjects by promoting to V semester. Elaborating his submission on this issue, he would submit that keeping in mind this factual background, circular dated 02.08.2010 was issued by second respondent which provided for benefit of carry over to fifth semester during the academic year 2010-11 even though candidates did not pass in all the subjects of first and second semesters and submits that by giving a go by to said decision, present circular dated 24.07.2012 has been issued and it affects the students who have failed in more than 8 subjects and they will not be able to go to V semester and prays for quashing the same.
(ii) When admission to third semester is permitted if students have failed less than 8 subjects, students aspiring for admission to fifth semesters should be given same benefit or in other words, he seeks for an exemption to be extended to these students by permitting them to carry over 16 subjects. On this ground, he submits that authorities had permitted the students to take up V semester by carrying over all subjects and as such he seeks for retaining carry over system as per earlier circular dated 02.08.2010.
(iii) The embargo/restriction imposed under the impugned circular would be applicable prospectively namely, to students who get admitted in the present academic year and it cannot be made applicable to students like the petitioners who have already been admitted to the course in the previous academic years and who are in the midst of the course.
On these grounds, he seeks for allowing the writ petitions and quashing the impugned circular.
Per contra, learned HCGP appearing for respondents would support the circular impugned in the present writ petitions and would hasten to add that as a one time measure, a concession was given by the State and said concession could be extended in these petitions only to those who are eligible to such concession and in the event of petitioners are already admitted as contended by learned counsel for petitioners since issue of attendance would arise and submits prayer made by other petitioners be rejected as otherwise it would result in standards of education falling down.
The Hon''ble Apex Court has repeatedly held that scope of judicial review with regard to fixation of eligibility criteria is limited or in other words, circumscribed by the regulations, policies, circulars that govern.
In the case of Visveswaraya Technological University and Another Vs. Krishnendu Halder and Others, Hon''ble Apex Court has held as under:
No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there are unfilled vacancies in colleges. In fact, the State/University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of higher education in the State or in the colleges affiliated to the University. Determination of such standards, being part of the academic policy of the University, are beyond the purview of judicial review, unless it is established that such standards are arbitrary or ''adversely affect'' the standards, if any, fixed by the Central Body under a Central enactment. The order of the Division Bench, is therefore, unsustainable.
(Emphasis supplied by me)
Thus, until and unless it is established that such criteria prescribed by the State or University as the case may be is arbitrary, whimsical and strikes to the conscious of the Court, such criteria fixed by them could not be interfered with.
In the case of Mahatma Gandhi University and Another Vs. Gis Jose and Others, Hon''ble Supreme Court has deprecated practise of permitting the students to pursue their studies to appear in the examination particularly under the umbrage of interim orders. It has been held that when the Rules stare straight into the face, plea of sympathy and concession would be against legal provisions, regulations, criteria fixed by State or University as the case may be and such sympathies even if any should recede to background. In fact, it has been held that misplaced sympathy should not be shown in utter breach of the Rules in the words of their Lordships it reads as under:
Learned counsel for the student relied on a judgment of this Court in the case of Selin Mary Mammen v. Mahatma Gandhi University & others (Civil Appeal No. 689 of 2004 delivered on 03.02.2004) a judgment delivered by Lahoti, J. Apart from the fact that the factual position is different in that case, there were no timely notices given regarding the irregular admission to the student as in the present case.
The misplaced sympathies should not have been shown in total breach of the Rules. In our opinion, that is precisely what has happened. Such a course was disapproved by this Court in Regional Officer, C.B.S.E. Vs. Ku. Sheena Peethambaran and Others, In paragraph 6 of the Judgment, this Court observed as follows:
This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases, it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions...........
The power of this Court to exercise extraordinary jurisdiction under Article 226 of the Constitution of India is to ensure Rule of law prevails and not to issue directions or writs to perpetuate illegality or to act in disregard to the statutory provisions, regulations and policy decisions like the one in hand. In this regard, dicta laid down by the Hon''ble Apex Court in K.S. Bhoir Vs. State of Maharashtra and Others, would be of assistance and as such, relevant paragraph is extracted herein below:
The aforesaid observations by the High Court were in the context of the extraordinary and difficult situation that had arisen due to revision of the merit list. It is in this light the aforesaid observation has to be read and understood. It is no doubt true that a large number of students who were already admitted in the colleges and incurred a lot of expenditure in taking admissions were to be dislodged by issue of the revised merit list. In such a situation one can sympathies with the plight of such students who for no fault of their own were to be dislodged. However, the compassion and sympathy has no role to play where a rule of law is required to be enforced. The High Court has rightly declined to issue any direction to the Central Government to grant one time increase in the admission capacity in the medical colleges, otherwise it would not have been proper exercise of jurisdiction under Article 226 of the Constitution. Adjusting equities in exercise of extraordinary jurisdiction under Article 226 is one thing, and the High Court assuming the role of the Central Government and the Medical Council u/s 10A of the Act is a different thing. The Court cannot direct to waive the mandatory requirement of law in exercise of its extraordinary power under Article 226. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law. However, it does not mean that the High Court is powerless in that regard. It can do so only when it finds that there was some illegality in the order of the Central government in refusing to increase the admission capacity in various colleges. The increase in admission capacity is permissible only when a scheme, in accordance with the regulations, is submitted by a medical college u/s 10A of the Act to the Central Government and the Medical Council is satisfied that the scheme complies with the requirement of the Act and regulations and thereafter the Medical Council recommends for such an increase in admission capacity. So long as the requirements u/s 10A of the Act are not complied with, no permission can be granted by the Central Government. If any direction is issued by the High Court to the Central Government to increase the admission capacity in a medical college, it would be in the teeth of the statutory provisions and amounted to amending the provisions of Section 10A. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law.
When the State/University in its wisdom have fixed criteria for churning out excellence in education by restricting the promotion to next semester namely, in the instant case, from fourth to fifth semester and from second to third semester by stipulating that a candidate should not have failed in more than eight subjects cannot be construed either to be arbitrary, capricious or which would strike conscious of the Court.
Keeping these principles in mind, when the contention of learned counsel for petitioners is examined, it does not detain this Court too long to reject said contention for myriad reasons. At the outset, it has to be noticed that Annexure-C which is the circular dated 02.08.2010 which is strongly relied upon by learned counsel for petitioners would not be of any assistance whatsoever to the petitioners inasmuch as, circular itself stipulates that it would be applicable for the academic year 2010-11 only. Said circular being restricted only for the said academic year, no right flows to the petitioners to claim that it has to be extended for subsequent academic years also. Though petitioners have contended that on account of various factors, they were unable to successfully complete their subjects or pass the subjects of earlier semesters as a ground to appear for the next semester or in other words, said contention cannot be accepted for permitting full carry over. Merely because for a particular academic year certain concession was extended cannot hold good for all times to come. Hence, the contention of learned counsel that said regulation which was in force/vogue on the date petitioners got admitted and it should hold good for all time to come or in other words, till they complete the course does not hold water and it is liable to be rejected and it stands rejected. University/State would be in its domain to fix eligibility criteria by taking all aspects into consideration.
Insofar as second contention is concerned with regard to the circular impugned in present writ petitions has to be held prospective i.e., applicable only to those students who get admitted in the present academic year and cannot be made applicable to students who are already admitted to the course either in the previous academic year or earlier thereto cannot be accepted. Even according to petitioners themselves, circulars governing the promotion was issued from time to time and only because for the academic year 2010-11 i.e., on 02.08.2010 it was resolved to permit students to carry over all the subjects even though to the next semesters though failed in all subjects cannot be a ground to contend that under the impugned circular, petitioners are not required to pass in all the subjects except to the extent of eight subjects. Impugned circular issued relates to academic year in question and by applying prospective applicability, it cannot be held that it would apply only to students who get admitted to the present academic year. Said contention is also liable to be rejected and accordingly it is rejected.
Insofar as the third contention is concerned, when a candidate aspiring for admission to third semester is permitted to retain 8 back subjects and on prorata, it has to be extended to the candidates aspiring for fifth semester namely by permitting them atleast 16 back subjects to be "carried over", is liable to be rejected at the threshold. The Government Order dated 02.08.2010 which permitted full carry over was applicable only for the academic year 2010-11 merely because respondents have fixed the norms of failing 8 subjects would entitle the candidate to go to third semester, same cannot be extended to the candidates aspiring for fifth semester on prorata basis i.e., by allowing such candidates to retain 16 subjects for the previous semesters-I to IV. Said analogy does not appear to be logical and it would run counter to the circular governing such admission and this Court would not decide the policy to be adopted by the Education Department. It is left to the realm or domain of respondent-authorities and if in their wisdom they have resolved to extend only 8 subjects or 10 subjects (now by way of concession) for both III and IV semesters, it cannot be extended on prorata basis, as claimed by the candidates aspiring to be admitted to fifth semester.
For the reasons as aforesaid, these writ petitions are disposed of by making it explicitly clear that Principals of respective colleges will ensure that admissions/promotions shall be accorded to those students who satisfy criteria of having failed in less than 10 subjects only in view of the undertaking given by the Joint Director which has been extracted hereinabove (paragraph 5) and they shall also ensure:
i) Respondent Nos. 3 to 17 colleges will ensure promotions to those petitioners who satisfy the criteria of having failed in less than 10 subjects in view of the undertaking given by Joint Director which has been extracted in paragraph 5 hereinabove subject to petitioners having been already admitted to course.
ii) to hold additional classes for these candidates and other students similarly circumstanced, in which they shall attend to secure the required minimum percentage of attendance to appear for 5th semester examination when conducted;
iii) to conduct internal examinations for the said students;
iv) that the aforementioned "carry over system" is a one time measure applicable to the said students for the academic year 2012-13 only;
v) Students promoted to 5th Semester diploma courses if found to be ineligible for promotion having failed to comply with the aforesaid carry over system to be discharged and course fee to be refunded forthwith.
vi) Benefit of this order shall accrue or enure to these petitioners only in the event of they having been already admitted and attending the classes as otherwise the above directions would not come to the assistance of petitioners since more than 20 days have lapsed from the date of undertaking and issue of shortage of attendance would be faced by petitioners.
It is also made explicitly clear that such of those students who have failed in more than 10 subjects would not be entitled for benefit or whatsoever concession made by State through Sri. S. Vijay Kumar, Joint Director (CDC) Department of Technical Education.
Ordered accordingly.