Ms. Gaganjyot Mann vs State of Punjab

Mehtab S. Gill, J.—by this order, we are disposing of the Civil Writ Petition No. 5359 of 199 (Ms. Gaganjyot Mann v. The State of Punjab and others) and Civil Writ Petition No. 5499 of 1999 (Ms. Savleen Dhanjal v. The State of Punjab and another) as the points involved in both these writ petitions are of identical nature.

Petitioner-Ms. Gaganjyot Mann has filed this petition under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the letter dated 31.3.1999 Annexure P-l and a writ in the nature of mandamus directing the respondents, promote the petitioners to 4th semester.

Petitioner-Ms. Gaganjyot Mann has alleged that the respondent No. 2-The Northern India Institute of Fashion and Technology C-115, Phase V, Focal Point, Mohali (for short ''the NIIFT'') is an instrument (instrumentality ?) of the Government of Punjab. The Secretary to Government of Punjab, Department of Industries and the Director of industries, Punjab are the ex officio Directors. The Government of Punjab exercises the control and functioning of the NIIFT as the same is funded and aided by it. The NIIFT undertakes courses in various subjects such as, Fashion, Designs, Garments Manufacturing and Technology etc. The NIIFT invited applications for admissions to the above said courses as per rules prescribed in the prospectus which are reproduced below :

"Admission Rules

Admission to NIIFT Diploma programme is strictly on merit as assessed at the entrance examination. NIIFTs entrance test are conducted as per the following procedure.

The written examination will be conducted at Chandigarh on 19th, 20th July, 1997.

The written examination will consist of the following tests :-

(i) General Ability Test (GAT)

(ii) Managerial Ability Test (MAT)

(iii) Creative Ability Test (CAT)

The written examination is planned to test the knowledge, skill, ability and aptitude of the candidates. The details of the above tests are explained under "Guidelines for the Examination".

Candidates short-listed on the basis of perform- ance in the written test, are required to appear for situation test. Group discussion and interview. A formal communication will be sent to the shortlisted candidates on the basis of merit. NIIFT does not publish result in News Papers."

The petitioner states that the she submitted an application for admission to diploma in Fashion Designing and appeared in the Entrance Test on 20.7.1997 and was selected on 11.9.1997. As she could not submit her fee in time, she filed Civil Writ Petition No. 15803 of 1997 and the Hon''ble High Court passed an order dated 21.11.1997 (Annexure P-2) whereby the writ petition as allowed and the NIIFT was directed to admit the petitioner in diploma course in Fashion Designing after verifying the documents. The diploma course of Fashion Designing is of three years.

The petitioner cleared 1st and IInd semester by February, 1999. The result of the 3rd semester was declared on 15.3.1999. She further states that she was not allowed to sit in two papers, i.e., Draping and Constitution on account of shortage of attendance and was declared ''fail'' in two subjects, namely, Computers and Pattern making. The petitioner has asserted that there are no rules and regulations for promotion made by the respondents, but it is only in the prospectus which prescribes that the promotion policy will be the same as per rules of the Northern India Institute of Fashion Technology (NIIFT), New Delhi. The rules and regulations for students are given in the brochure which lays down as under:

"Promotion Policy

To be promoted to the next Semester, a student must pass in all subjects. A student who fails in 2 subjects may carry on into the next semester. He or she must however repeat the subjects failed in the next time in the supplementary examination within 3 months from the start of the semester. The Faculty concerned with the subject will conduct the supplementary Examinations.

A student cannot carry more than 2 subjects from one semester to the next, if the student fails in more than 2 subjects he/she has to repeat the entire semester.

A student cannot repeat a subject more than 3 times.

Students who have not completed their industry internship or Craft Documentation or not complemented it satisfactorily will be required to repeat it before they can be considered for the grant of Diploma.

(a) Those students who are carrying failed subjects and who do not clear them before the penultimate semester (i.e. the semester before the graduation semester) shall not qualify to sit for placement interviews conducted at NIIFT).

(b) FD students in this category shall not, in addition, qualify to present collection to their respective assessment juries.

(c) Students, thus disqualified from placement/collection presentation shall not graduate with their batch mates but in the graduation year when they pass all subjects."

The petitioner further states that as per the prospectus of the NIIFT, the final certificate of diploma is to be granted after the candidate has cleared all the papers of ail the semesters. What has been prescribed in the prospectus, the same has been relied upon under the head of examination which reads as under:

"Examination

On completion of each semester, theory and practical examination will be held and the candidates are required to qualify the same for obtaining the final certificate."

The petitioner interpreted the said clause of examination by stating that there is no bar whatsoever in promotion to the next semester on account of some re-appears.

It has been further averred that the staff members of the institute and administrative personnel got inimical towards her as they got irritated that she had filed writ petition in this Hon''ble Court, especially respondent No. 3-Mr. Anurag Aggarwal, Executive Director, got vindictive and started threatening her that he will throw her out of the college. This fact of vindictive-ness is clearly borne out from paras 7 and 8 of the writ petition where she was allegedly victimised. It is further averred that the respondents have already held the petitioner to be short of attendance in two subjects, i.e., draping and construction, the criteria for which was 75 per cent attendance. It is further stated that she had submitted two leave applications in the entire seam-ster. Firstly, when she had gone to Australia for two weeks because of the real brother''s wedding and secondly, when she feel ill in November, 1998, she took leave for one week. The factum of illness was duly supported by the medical certificate. Both these applications were duly accepted by the authorities. But only one week before the start of the examination, she was told that her applications of leave have been rejected by respondent No. 4-Shri Sohan Lal. The petitioner has also pointed out that the two students, namely, Munish Rana and Khushdip Kaushal were allowed to sit in the examinations even though they had submitted the leave applications at a belated stage and were running short of lectures.

It is further the case of the petitioner that the two subjects in which she failed, they were computers and pattern making. In computer paper, she secured 35 marks out of 80; in Theory and Practitional examinations, she was given 7 out of 20 marks. Photo copy of the answer-sheet is annexed as Annexure P-3. There are two mistake pointed out by the teacher in the said assignments. Firstly, "The Tribune News Service" was not underlined and secondly, the words "A Tribune Photograph" are missing. She has further alleged that the students having more mistakes than her have been allotted higher marks and she was deliberately, out of vendetta, failed. In the second paper of pattern making, she states that the paper was out of 100 marks in which first submission she got 60 per cent and for Theory 40 per cent. She states that she submitted all her submissions throughout the year and these submissions were duty checked and none was found inaccurate, but out of vindictiveness, she was given only 35 marks out of 100 in the said subject. The petitioner further wanted to have these papers re-evaluated, but respondent No. 3 told her that there are no provisions for revaluation. She states that the action of the respondents is discriminatory and biased.

It is in these circumstances, as given above, the petitioner seeks the impugned letter dated 31.3.1999, Annexure P-l and Annexure P-3 to be quashed otherwise, she will be missing one full year which she can only repeat the semester in the year 2000, i.e. at the start of the batch.

In Civil Court Petition No. 5499 of 1999 the challenge is the same, but the petitioner in this writ petition is running short of lectures in two subjects, namely, Construction and Computer and has failed to secure qualifying marks in Pattern Making and thus, she was declared fail in three subjects.

Respondents 1 and 2 have filed a joint written statement taking the pleas that Annexure P-3 is photo copy of answer-sheet of the Computer paper. They have further stated that there was no occasion for acan-didate to possess her own answer-sheet and otherwise also, Annexure P-3 does not bear any signature of the faculty member as it is clear from the answer-sheets which have been annexed at pages 35 and 36-B. They have further stated that Annexure P-3 is a fabricated document. Every student is given a copy of the rules and regulations at the time of his admission concluding promotion policy and pass percentage etc. and as per promotion policy, a student can be promoted to the next semester only if he/she passes all subjects. If the student fails in two subjects, he/she is entitled to carry on into the next semester with the stipulation that he/she has to re-appear in those subjects in supplementary examination within three months. However, if a student fails in more than two subjects, he/she will have to repeat the entire semester. The promotion policy has been reproduced above. "The petitioner fell short of lectures in two subjects, namely, Construction and Draping and failed to secure the qualifying marks in the papers of Pattern Making and Computes. Therefore, she is declared fail. She was asked to repeat the entire semester which was to commence in July/August, 1999 and was thus, asked to join the students of 3rd semester. The extract of the result-sheet of the papers, namely, pattern making end computers has been attached as Annexure R-5. The petitioner failed to secure 50 per cent marks, which is prescribed pass percentage. The prescribed pass percentage as per rules is recorded as under :-

"Evaluation. - The grading system at the NIIFT is on the basis of percentage. Pass marks are 50% for all the subjects.

In case of failure or drop out in a particular subject, a student shall be permitted to reappear for that subject/semester either in the supplementary Exam or along with the next batch. Poor per- formance or misconduct and lack of required attendance may result, in mid-semester termination of studentship. Periodic evaluation by the faculty/academic committees are made and each student is assessed, on his/her performance in semester/final exams, production of the garments in case of fashion design students, projects and other assignments."

In the other two papers, the petitioner has not secured 75 per cent attendance and, therefore, she was detained and was not allowed to appear. The relevant rules are reproduced as under:-

" Strict punctuality must be maintained in attending classes. 75% attendance is compulsory for students of all programmes unless and until valid reasons are given to support absence. Attendance will be taken by each faculty member at the beginning of each class and recorded accordingly. Unauthorised or habitual absence will attract disciplinary action.

A student can avail maximum three days leave without medical certificate. However, a student can avail a maximum of 10 days leave on medical grounds with a Medical Certificate."

In Paper I (Construction) out of a total of 27 lectures, the petitioner attended 12 against the requirement of minimum 20 and in Paper III (Draping), out of a total of 17 lectures the petitioner attended 9 as against the requirement of 13. The petitioner filed representation (Annexure P-5) which was duly considered by the competent authority but was rejected vide order dated 20.4.1999. The petitioner further requested for re-evaluation; retotalling in both the papers were done in which she failed, but the result remained unchanged. The respondents further denied that the result of the petitioner was influenced by anybody or any of the respondents, but she has failed to perform in her studies and was, accordingly, failed in 3rd semester. It is further stated in the written statement that the petitioner has wrongly stated that she had applied for 9 days leave vide her application dated 12.12.1998 which was declined and further pleas regarding leave application alleged to have been made in November, 1998 is not borne out of the record.

We have heard the arguments advanced by the learned Counsel for the petitioner and the learned Counsel for the respondents.

During the course of arguments, the following three points have been raised for deciding the matter involved in these two writ petitions which are to be taken into consideration :-

(i) Whether the writ petition is maintainable in the present form ?

(ii) Whether the lectures were short and the leave applications applied for by the petitioner-Ms. Ga-ganjyot Mann were taken into consideration or not?

(iii) Whether the petitioner-Ms. Gaganjyot Mann, as per rules and regulations of the promotion police has been rightly failed ?

Regarding (i)

The respondents in the written statement have stated that the NIIFT, Mohali is a body imparting training in the fields of garments production, design and technology, management and related fields. It takes up consultancy, research and development projects; to organise Fashion Shows etc. and further functioning of the institute is to sell or dispose of products, by-products and/or waste materials arising out or incidental to the courses of training, development etc. These have also been incorporated in the Memorandum of Association of the society and it does not discharge any of the governmental function or activity. Further, it is stated that there is no interaction of the society with the government in the matter of award of diploma or affiliation or recognition of University or educational authorities, the society is completely autonomous and independent of any control whether internal or external. Thus, in other words, the respondents are trying to prove that it is completely autonomous body and, it is outside the purview of ''State'' as contemplated under Article 12 of the Constitution of India. Respondents have relied upon the judgments of the Apex Court in Chander Mohan Khanna Vs. The National Council of Educational Research and Training and other[OVERRULED], and Tekraj Vasandi alias K.L. Basandhi Vs. Union of India (UOI) and Others, , Constitution Bench judgment in Sabhajit Tewary Vs. Union of India (UOI) and Others, , Full Bench judgment of this Court in Ram Par-shad v. Indian Institute of Bankers, 1991(5) SLR 266 : 1991(3) SCT 662 (P&II)(DB) and Division Bench judgment of Rajasthan High Court in Purshotam Na-gar (Dr.) v. State of Rajasthan 1993(7) SLR 448.

In the written statement of the respondents, it is stated that the affairs of the institute is carried out by the governing council, which constitutes the following members:

1.

Shri Ramesh Inder Singh, Secretary, Industries and Commerce, Government of Punjab

Chairman

2.

Shri Rajan Kashyap, Principal Secretary, Finance. Govt of Commerce, Government of Punjab

Member

3.

Shri D.S. Guru, Director Industries and Commerce, Govt. of Punjab

Member

4.

Sh. L.V. Sapthrishi, Executive Director, NIIFT.Mohali

Member

5.

Director, NI1FT, Mohall

Member

6.

Sh. Sohan Lal, Director, NIIFT Mohali-com-Textile Officer (Handlooms), Deptt. of Industries, Govt. of Punjab

Member

7.

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8.

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9.

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10.

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11.

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12.

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By going through the members of the governing council, it is amply clear that the day-to-day affairs of the NIIFT are under the control of the senior Officers of the State of Punjab. From this fact, it can be fairly concluded that the NIIFT is an instrumentality of the State, which is well within the meaning of Article 12 of the Constitution and, therefore, the instant petition filed under Article 226 of the Constitution is maintainable. It has been further staled that the Institute is being aided by the State of Punjab. The land, building and aid given to the Institute were to the tune of about Rs. 50 crores.

The authorities cited by the respondents do not have bearing on the case as the Institute is very much being governed by the officers of the State. Petitioner''s counsel has argued that the appointments of the faculty members of the NIIFT are also being done by the governing council, who arc government officers. Petitioner''s counsel has relied upon Miss Ravneet Kaur v. The Christian Medical College, Ludhiana 1997(4) SLR 221 : 1997(3) SCT 210 (P&H)(FB), wherein it is clearly held that the High Court has the power to issue writs not only to statutory authorities and instrumentalities of the State but also io "any other person or body performing public duty."

Regarding (ii)

As has been discussed above, it is clear that the petitioner is running short of lectures in two subjects, namely, draping and construction. The leave applications given by petitioner-Ms. Gagajyot Kaur especially the second one which was given in November, 1998 does not conform with the record which is in possession of the respondents. It seems that the petitioner after making the lectures short, has only stated in November, 1998 that she had given an application for leave. This fact has also been denied by the respondents as their record also does not support the case of the petitioner and thus, the question of considering his leave application of the petitioner did not arise.

The application dated 12.12.1998 vide which the petitioner applied for 9 days leave, was also declined by the competent authority. As per rules and regulations shown to us by the counsel for the respondents, only three days leave is permissible thus, showing that the petitioner was short of lectures in both the subjects.

regarding (iii)

The promotion policy, as has been reproduced above, clearly stipulates that a student who fails in two subjects can be promoted to the next semester provided he passes these two subjects in the supplementary examination, within three months of the start of the next semester. It further provides that a student cannot carry more than two subjects from one seamster to the next if the student fails in more than two subjects, he/she has to repeat the entire semester. Further, it is stipulated that a student cannot repeat a subject more than three times.

It is amply clear from this rule that as the peti-tioner has failed in four subjects, she is not entitled for promotion and can only repeat the 3rd semester if she desires so.

Seeing the interest of the young students like the petitioner, we tried to reconcile the matter between the petitioner and the respondents so that the studies of the petitioner do not suffer. Two meetings were held with the learned Counsel and Ms. Poonam Aggarwal, Dep-uty Registrar and a senior teacher in the NIIFT, Ms. Ranjana Thakur in the chamber. Ms. Thakur asserted that the document, Annexure P-3, was pasted on the sheet after removing the alleged initial assignment. However, the Court still considered it appropriate to put the petitioner at computer test once against to reassess her capability. Endeavour was made to give an assignment to be typed in the correct (court ?) premises itself but the same could not succeed as on the given date, the requisite software was not functioning properly in the court complex. Therefore, with the consent of the petitioner she was asked to appear in the computer test at the institute itself. Accordingly, the petitioner reached the institute on 23.7.1999 at 3.00 p.m. She was given a computer assignment Flag ''B'' for typing. The petitioner worked on the computer upto 4.30 P.M., but she could not handle the computer software properly and she could prepare a border only. The performance of the petitioner on 23.7.1999 substantiates that the petitioner was not efficient in working of the computer and an affidavit to this effect has been filed by Ms. Ranjana Thakur, computer/concerned teacher.

For the reasons recorded above, the writ petitions are dismissed with no order as to costs.

Petitions dismissed