Zeeshan Khan and Others vs Jai Narayan Vyas University and Others

Sangeet Lodha, J.�By way of these writ petitions, the petitioners have questioned the action of the respondent-Jai Narayan Vyas University (for short "the University"), in not permitting them to appear in Bachelor of Computer Application (B.C.A.) IV, V and VI Semester Regular Examinations on account of their failure to clear all the units of I, all the units upto II and all the units upto III Semester respectively.

The petitioners are pursuing B.C.A. Three Years Degree Course having six Semesters, run by various private colleges affiliated to the University. The University vide order dated 5.7.07 constituted a Three Members Committee to solve various problems of B.C.A. related ''Allow To Keep Terms'' (ATKT) Examinations. The Three Members Committee after going through the existing rules and regulations of B.C.A. Course resolved that the ATKT Rules and Regulations of B.C.A. Course will remain the same as that of M.C.A.. The relevant portion of the rules and regulations of M.C.A. adopted for B.C.A. Course on the recommendation of the committee, read as under:

"6(c)(i) The make up examination shall be held along with the next semester regular examinations.

6(e)(i) No candidate shall be permitted to appear in fourth semester examination unless he or she has cleared all the units of first semester.

(ii) No candidate shall be permitted to appear in fifth semester examination unless he or she has cleared all the units of second semester.

(iii) No candidate shall be permitted to appear in fourth semester examination unless he or she has cleared all the units of first semester.

....xxxx....... xx

7 (4) If a candidate fails in ATKT of first semester along with second semester regular examination and third semester regular examination, he will not be allowed to appear in fourth semester regular examination."

The recommendations of Three Members Committee was later considered by the Committee of Courses and Studies ("COCS")in its meeting held on 1.2.12 wherein it was resolved that no candidate shall be permitted to appear in IV Semester Examination unless he/she has cleared all the units of I Semester and that no candidate shall be permitted to appear in V Semester Examination unless he/she has cleared all the units upto II Semester. The aforesaid recommendations of COCS were approved by the Faculty of Science in its meeting held on 23.4.12 which in its turn stands approved by the Academic Council of the University vide resolution No. 10/12 adopted in its meeting held on 28.4.12.

It is not in dispute that all the petitioners herein availed two opportunities to clear their ATKT papers of I, II and III Semester, however, since they could not clear all the ATKT papers even after availing two chances, they were not allowed to appear in the IV Semester Examination, 2010. In these circumstances, they have approached this court questioning the recommendations of the committee made as aforesaid, however, the resolution adopted by Academic Council as aforesaid, is not impugned in the present writ petitions.

The petitioners have alleged discrimination stating that on the request of the few students of B.E. Course, the Vice Chancellor of the University while exercising power under Section 12(5) of Jai Narayan Vyas University Act, 1962 (for short "the Act of 1962") issued notification dated 11.12.10, whereby the students pursuing B.E. Course were granted exemption from check points and they were permitted to appear in Final Year B.E. Examination though they had not cleared the ATKT papers of B.E. First Year, however, the same benefits were not extended to the students pursuing the B.C.A. Course. Aggrieved by the alleged inequitable and discriminatory treatment, the petitioners approached the Vice Chancellor the respondent-University by way of a detailed representation claiming exemption from check points provided for B.C.A. Course as aforesaid, but to no avail. Hence, these petitions.

A reply to the writ petitions has been filed on behalf of the respondent-University taking the stand that the petitioners having appeared in ATKT examination of I Semester while appearing in II & III Semester regular examination, cannot be permitted to contend that they may be permitted to appear in IV Semester examination despite the fact that they have not cleared all the units of I Semester. It is submitted that since 2007, the ATKT Examinations of B.C.A. Course are governed by the recommendations made by Three Members Committee constituted by the respondent-University vide order dated 5.7.07. Referring to the recommendations of COCS for B.C.A., which stands approved by the Faculty of Science in its meeting held on 23.4.12 and thereafter, by the Academic Council of the University, it is submitted that from 28.4.12 onwards the ATKT Examinations of B.C.A. Course would be governed by the resolution adopted by the Academic Council of the respondent-University as aforesaid. It is submitted that Section 12 read with Section 17 of the Act of 1962 read with Section 7, 9, 9A & 9C of the Statutes of the University makes it abundantly clear that the Vice Chancellor acted well within its powers to constitute the Committee and the recommendations made by the Committee, were rightly made applicable to govern the ATKT Examination of B.C.A. Course. It is submitted that under Section 12(5) of the Act of 1962, the Vice Chancellor is empowered to exercise its discretionary power if there exists any emergent situation. It is submitted that taking into consideration the emergent situation, the power exercised by the Vice Chancellor in respect of the students pursuing B.E. Course does not create any right in favour of the petitioners to claim the relaxation as a matter of right. It is submitted that the policy decision taken by the University with regard to academic affairs, cannot be a subject matter of judicial review by this court. It is submitted that the petitioners have miserably failed to show as to which and how their legal rights have been infringed so as to make them entitled to invoke the extra ordinary jurisdiction of this court.

It is pertinent to note that prior to filing of these writ petitions, some of the petitioners had approached this court by way of writ petition being No. 16623/10, wherein by way of interim order, the petitioners therein were permitted to appear in B.C.A. IV Semester Examination provisionally. Later, the interim order was made absolute with the observation that the appearance of the petitioners in IV Semester onwards shall be regularised by the respondent-University and they shall be permitted to take further examination as per their entitlement. It was specifically observed that the order has been passed essentially in the balance of equities and the same shall not be treated as laying down any principles of law allowing every candidate for repeat appearance in ATKT.

In the instant writ petitions, by way of interim order, the petitioners were permitted to appear in B.C.A. IV Semester Examination and thereafter, vide order dated 24.1.13, the respondent-University was directed to declare the result of B.C.A. IV Semester Examination provisionally and allow them to appear in the ATKT Examinations in papers wherein they were declared failed. Thereafter, the petitioners who had cleared all the papers upto II Semester, made an application seeking permission to appear in B.C.A. V Semester Examination stating that in terms of clause 6 (e)(ii) of resolution adopted by the Committee constituted to solve various B.C.A. related ATKT Examination, they cannot be denied from appearing in B.C.A. V Semester Examination. Accordingly, having regard to the facts and circumstances of the case, vide order dated 13.5.13, the petitioners who had cleared all the papers upto II Semester, were permitted to appear in B.C.A. V Semester Examination scheduled to be commenced on the same day.

Learned counsel for the petitioners submitted that the Vice Chancellor of the respondent-University invoking the powers under Section 12(5) of the Act of 1962 having extended the exemption from check points to the students of B.E., the petitioners herein similarly situated persons, pursuing the B.C.A. Course, cannot be picked up for a different treatment being given. Learned counsel submitted that the respondent-University has already abolished ATKT Semester system and introduced annual course for B.C.A. and therefore, there is no reason as to why the students who are pursuing the B.C.A. Course under the ATKT Semester system should not be exempted from the check points as provided for under the recommendations of the Committee and later, approved by the Academic Council of the respondent-University. Learned counsel submitted that pursuant to the interim order passed, the petitioners have already appeared in the ATKT Examination as also in the IV and V Semester Examination and therefore, they deserve to be permitted to take further examinations as per their entitlement. Learned counsel submitted that as a matter of fact, most of the petitioners have already cleared VI Semester Examination and therefore, they deserve to be awarded B.C.A. Degree. In support of the contentions, learned counsel has relied upon the decisions of the Hon''ble Supreme Court in the matters of Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, , Smita Johnbhai Master and Others Vs. State of Gujarat and Others, , Principal, King George''s Medical College, Lucknow Vs. Dr. Vishan Kumar Agarwal and Another, , decision of this court in the matter of University of Raj. Vs. Yash Pal Singh Jhala, and a decision of Madhya Pradesh High Court in the matter of "Chandra Prabha Bangre v. The State of Madhya Pradesh" (Writ Petition No. 16305/10 & connected matters), decided vide judgment dated 25.1.11.

On the other hand, counsel appearing for the respondent-University reiterating the stand taken in reply to the writ petitions, submitted that the policy decision taken by the Academic Council of the respondent-University, cannot be a subject matter of judicial review by this court. Learned counsel submitted that in view of the check points prescribed for appearance in IV, V and VI Semester regular examinations, the petitioners who have already availed the two opportunities to clear ATKT papers of I, II & III Semesters, as provided for under the recommendations of Three Members Committee, which later stands approved by the Academic Council of the respondent-University, cannot be permitted to raise grievance when they are not permitted to appear in IV, V & VI Semester regular examinations on account of the fact that they could not clear the ATKT papers availing the two chances available. Learned counsel submitted that adhering to the Rules, the examination forms of the petitioners were never accepted by the respondent-University. It is submitted that as a matter of fact, the examination forms submitted by the petitioners were not accepted and forwarded by the concerned colleges to the respondent-University, however, the petitioners have appeared in the examination pursuant to the interim order passed by this court. Learned counsel submitted that merely because the petitioners have appeared in the examinations pursuant to the interim order passed by this court, they cannot claim regularisation thereof dehors the Rules framed by the competent academic body of the respondent-University. In support of the contentions, learned counsel has relied upon the decisions of the Hon''ble Supreme Court in the matters of Guru Nanak Dev University Vs. Parminder Kr. Bansal and another, , Regional Officer, C.B.S.E. Vs. Ku. Sheena Peethambaran and Others, C.B.S.E. and Another Vs. P. Sunil Kumar and Others, and Maharshi Dayanand University Vs. Dr. Anto Joseph and Others, . Learned counsel submitted that the reference of earlier orders passed under Section 12(5) of the Act by the Vice Chancellor does not turn anything in favour of the petitioners inasmuch as, none of their legal right has been infringed and they cannot claim exemption from check points provided for as aforesaid, as a matter of right. Learned counsel submitted that Article 14 of the Constitution of India embodies a guarantee against arbitrariness, which being a positive concept, cannot be enforced in a negative manner. In this regard learned counsel has relied upon the decision of the Hon''ble Supreme Court in the matter of State of Kerala and Others Vs. K. Prasad and Another, . Learned counsel submitted that even if any illegality is committed by the Vice Chancellor in granting relaxation to the students pursuing the B.E. Course under the ATKT Semester system, the petitioners cannot claim parity on that account.

I have considered the rival submissions and perused the material on record.

Indisputably, the respondent-University, an autonomous body, created by statute is governed by the statutory provisions and therefore, the decision of its academic bodies cannot be interfered with by this court except when its authorities act mala fide or with bias or arbitrarily or exceeds its jurisdiction under the relevant statutes, rules and regulations. The academic curriculum of the various courses and the examination pattern are the matters need to be exclusively dealt with by the academic bodies of the University and this court cannot sit in appeal over the decisions of the academic bodies of the University.

Admittedly, as on the date when the petitioners took admission in B.C.A. Course, the examination system prevalent for the said course was Semester system and the matter with regard to ATKT examination was governed by the resolution adopted by the Three Members Committee in its meeting held on 5.7.07, whereby the rules and regulations applicable to M.C.A. Course were adopted for B.C.A. Course as well. The recommendations made by the Three Members Committee reveals that check points were prescribed for appearance in IV, V and VI Semesters regular examinations. It is also not in dispute that all the petitioners herein appeared in the Semester Examination and also availed two opportunities to clear their ATKT papers of I, II and III Semesters, however, since they could not clear all the ATKT papers even after availing two chances therefore, they were not allowed to appear in higher semester examinations. It is a common ground between the parties that the recommendations made by the Three Members Committee adopting the rules and regulations applicable to M.C.A. Course ATKT Examination, stands approved by the Academic Council of the respondent-University. The petitioners have not been able to make out any case as to how the decision taken by the academic body of respondent-University providing for the check points for appearance in the IV & V Semester examination is arbitrary or exceeds the jurisdiction of the academic body under the statutes, rules and regulations. In the considered opinion of this court, while taking the policy decision and providing check points, the respondent-University has not acted in irrational or arbitrary manner so as to warrant interference by this court in exercise of its extra jurisdiction under Article 226 of the Constitution of India.

Coming to the contention of the petitioners that relaxation was granted by the Vice Chancellor of the respondent-University to the students pursuing the B.E. Course, suffice it to say that on the given facts and circumstances of the case, the discretion exercised by the Vice Chancellor cannot be a ground for the students pursuing other courses to claim exemption from check points as a matter of right and therefore, merely because, at one point of time, the relaxation was extended by the Vice Chancellor regarding the check points to the students pursuing B.E. Course, taking into consideration the hardship of the students in given facts situation, the petitioners cannot claim the relaxation claiming parity vis-�-vis the students pursuing B.E. Course at the relevant time. In this view of the matter, the decision of the Vice Chancellor of the respondent-University in rejecting the representation of the petitioners claiming removal of the check points from the B.C.A. Course, cannot be said to be arbitrary and discriminatory so as to violative of Article 14 of the Constitution of India.

It is true that the interim order passed by the court are always subject to final decision of the matter and nobody can be permitted to claim the equity as a matter of right on the strength of the interim order passed by the court. But then, indisputably, pursuant to the interim order passed by this court, the petitioners were permitted to appear in IV & V Semester of B.C.A. Course and they have already cleared the ATKT Examinations. It is not disputed before this court that most of the petitioners have already cleared VI Semester Examination as well. It is not the case wherein the petitioners were permitted to appear in the higher Semester examination without undergoing the regular studies of the course and therefore, they having cleared ATKT Examinations, it will be absolutely unjust to deprive them from the benefits of the Semester examination they have already cleared and compel them to appear in the said examination all over again, moreso when the ATKT Semester system already stands abandoned by the respondent-University for the Academic Session 2013-14 and onwards. Thus, on the facts and in the circumstances of the case, this court is firmly of the opinion that it will be inequitable and unjust to deny the petitioners benefits of the interim order passed in their favour.

For the aforementioned reasons, the writ petitions are partly allowed. The interim orders passed by this court in favour of the petitioners are made absolute. The petitioners who have cleared all the Semester examinations and completed the course, may be issued the mark sheets/degree. The petitioners who have appeared in the IV & V Semester examinations pursuant to the interim order passed by this court and declared passed therein, may be permitted to appear in VI Semester examination and their result may also be declared. It is made clear that the order in the terms indicated above is passed by this court taking into consideration the facts and circumstances of the case, essentially in the balance of equities and shall not form a precedent to be cited before any Court or make entitle any other student pursuing B.C.A. Course or any other course to claim parity in this regard. No order as to costs.