High Court
Legal Reasoning
1 WP-5830-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 5830 OF 20241) Sanket Mahdendrakumar Bhartiya Age : 23 years, Occ. Student,R/o at post, Aurala, KannadDist.Aurangabad.2) Krushna S/o Balasaheb Chame,Age : 21 years, Occ :Student,R/o Mahadevwadi, Latur,Dist. Latur. 3) Shivraj S/o Kashinath MokreAge : 21 years, Occ. StudentR/o Gade Chowk, Eknath nagar,Dist.Aurangabad.4) Chaitanya S/o Sanjay PallaweAge : 24 years, Occ. StudentsR/o Plot No. A-45, Gallli No.6,Pundlik Nagar, Garkheda Parisar,Dist. Aurangabad.5) Ganesh Pandurang Hiwale,Age : 21 years, Occ. StudentsR/o Parbhani, Tq.Dist.Parbhani6)Amit Sunil Patil,Age : 24 years,Occ. StudentR/o. AIP rethare Dharan, Tq.Wala, Dist.Sangali. 2 WP-5830-2024.doc 7)Ashish Amol MahadikAge : 23 years, Occ: StudentsR/o A/P Islampur, Tq.Walwa, Dist.Sangli8) Arpan Hemant ChavanAge : 22 years, Occ. StudentR/o AIP Punadi, Tq.PalusDist.Sangli.9) Santoshkumar Raghunath PatilAge : 39 years, Occ. StudentsR/o AIP Punadi, Tq.PalusDist.Sangli.10) Irtaza Hussian Faruk SsakheblalAge : 22 years, Occ. StudentR/o Plot No.2, Mumtaz Nagar, Puntha Naka,Tq.Dist. Solapur.11) Harshvardhan Vinayak DhawaneAge : 21 years, Occ. StudentR/o Plot No. 120, Laxmi Nagar,Garkheda Parisar, Soot Girni Chowk,Aurangabad.12) Zuber Mahemoob HimoneAge : 21 years, Occ. StudentAt Post Hotgi Station,Tq. South Solapur, Dist.Solapur.13) Sahil Sunil ChavanAge : 22 years, Occ. StudentsR/o. At Khumpur Post. Ozerde, Tq.WaiDist.Satara.
Legal Reasoning
3 WP-5830-2024.doc 14) Prathmesh S/o Deepak WarangAge : 22 years, Occ. StudentR/o. Shri Akeri, SawantwadiDist Sindhudurg.15) Ansari Mohd Arafat IqbalAge : 21 years, Occ. StudentR/o Kadrabad Plot, Near Civil Hospital, Parbhani, Tq.Dist.Parbhani.16) Rakesh Anilkumar PatilAge : 22 years, Occ. StudentR/o. Narmada Park, Mangalwedha, Tq.Mangalwedha Dist.Solapur. ….Petitioners Versus1) The State of MaharashtraThrough its Principal Secretary,Department of Higher and Technical Education,Mantralaya, Mumbai.2) Dr. Babasaheb Ambedkar Technological University,Through its Vice Chancellor,Lonere, Tal-Mangaon, Dist. Raigad.Maharashtra (India).4021033) The RegistrarDr. Babasaheb Ambedkar Technological UniversityLonere, Tal-Mangaon, Dist. Raigad.Maharashtra (India).4021034) The Controller of ExaminationsDr. Babasaheb Ambedkar Technological University,Through its Vice Chancellor, 4 WP-5830-2024.doc Lonere, Tal-Mangaon, Dist. Raigad.Maharashtra (India).4021035) Hitech Institute of Technology, Aurangabad,Through its Principal,P-119, Bajaj Nagar, MIDC, Waluj,Aurangabad-431136 …Respondents …Advocate for the Petitioners : Mr. P.D.JarareAGP for Respondent No. 1 : Mr. S.K.Tambe Advocate for Respondent Nos. 2 to 4 : Mr. Avinash R.BorulkarAdvocate for Respondent No. 5 :Mr. R.R.Shinde h/f Mr. Sambhaji S.Tope… CORAM : S.G.MEHARE & SHAILESH P. BRAHME, JJ. RESERVED ON : 09 DECEMBER 2024 PRONOUNCED ON : 19 DECEMBER 2024JUDGMENT [ Per Shailesh P. Brahme, J. ] :.Rule. Rule is made returnable forthwith with the consentof the parties.2.Heard both sides finally at the admission stage consideringexigency in the matter.3.Petitioners the students of Computer Science and theEngineering faculty have approached this Court for direction to 5 WP-5830-2024.doc conduct remedial examination for odd and even semesters andthey are consequently questioning the notification dated27.03.2024 of the respondent/University discontinuing remedialexamination for the engineering students except for thoseappearing for final year examination.4.The petitioners are taking education in the differentcolleges/technological institutions including the respondent no.5which are affiliated to respondent no.2 Dr. Babasaheb AmbedkarTechnological University. They had appeared for winter 2023examination. However could not clear few subjects. They wantedto appear for remedial examination, but therespondent/university did not arrange it. Surprisinglysupplementary examination was declared to be scheduled on12.06.2024. The respondent/university issued notification dated27.03.2024 and proposed to conduct remedial examination forthe final year students only. They are deprived of the remedialexamination which is in the nature of Multiple Choice questions(MCQ’s). It is the cause for them to approach High Court.5.Both parties are relying on The First Rules and Regulationsof 2016 (hereinafter referred to as ‘Rules of 2016’), Dr.Babasaheb Ambedkar Technological University Act of 2014 (In 6 WP-5830-2024.doc short ‘Act’ of 2014) and Statutes for Constitution, Appointment,Powers and Duties of the officers of the university ( in short‘Statutes’)6.It is the case of the petitioners that Rules of 2016 were inforce which were founded on decision of academic council dated23.12.2016. These rules provided for remedical examination.Even statutes also provided for remedial examination videStatutes S2.1d, S2.28 and 2(e) Upto winter-2023, respondentswere regularly conducting the remedial examinations. Theperspective plan also provides for policy of the remedialexamination. There was wide and open publicity andrepresentation for the remedial examination. But abruptlybanking upon notification dated 27.03.2024. Therespondent/university decided not to go for remedialexamination.7.Learned Counsel for the petitioners submits that a longstanding practice of conducting remedial examination has beendiscontinued midway without any prior intimation. The decisionin question amounts to change of rules retrospectively. Hence itis arbitrary. The petitioners were all the while represented thattill their completion of the courses, facility of remedialexamination would be available. The remedial examination is 7 WP-5830-2024.doc their legitimate expectation.8.Learned Counsel submits that the impugned decision basedon the notification dated 27.03.2024 has no sanctity of law.After coming into force of the Statutes, the practice ofconducting remedial examination continued which can bereflected from notification dated 26.10.2023. The perspectiveplan of the University from 2020-2025 also reflects remedialexamination. Without following any procedure, the decision inquestion has been taken by the university. The specialsupplementary examination proposed by communication dated25.09.24 awaits assent from Vice-Chacellor.9.Learned Counsel for the petitioner relies on the judgmentof Army Welfare Education Society New Delhi Vs. Sunil KumarSharma and Others reported in 2024 SCC Online SC 1683.10.Per contra, Mr. Avinash Borulkar, learned counselappearing for Respondent no. 2 to 4 places reliance on theaffidavit-in-reply to advance his submission. He would submitthat the provision for remedial examination in Rules of 2016 hasno sanctity of law. The approval of Chancellor as per Section 43of the Act was not obtained. The proposal to that effect wassubmitted on 20.07.2023 but it is still awaited. He would submit 8 WP-5830-2024.doc that Statute S3.52 1-g empowers Board of Examinations toreform the pattern of examination or to evaluate the same formore efficiency. Under the powers conferred under the Act andthe Statutes, the Academic Council proposed the changes in theremedial examination from Winter-2023. Thus the notificationdated 27.03.2024 was issued and relying on the same impugneddecision has taken by the University.11.Learned Counsel Mr. Borulkar vehemently submits that itis the prerogative and the wisdom of the respondent/universityto change the pattern and eliminate remedial examinations. Theexperts have found it fit not to resort to M.C.Q. typeexamination for the engineering students. He would submit thatno right is conferred upon petitioner to insist for remedialexamination. The University has provided alternative specialsupplementary examination to them. He relies on the judgmentof Hon’ble Supreme Court Indian Institute of Technology andOthers vs. Sourtik Sarangi and Others reported in (2021) 17 SCC79.12.The petitioners are the students of engineering/computerscience faculty from first year to third year. They are undergoingthe under graduation since prior to 2023. The Rules of 2016were provided for the remedial examination. 9 WP-5830-2024.doc 13.The perspective plan of the University for 2022-25 refersto the remedial examination. The Joint Directors would beresponsible for online examination for remedial examination.Following is the purport which can be gathered from perspectiveplan.Remedial Examination It is unlikely that all students shall pass the examination in one go. There issmall section of students who find it difficult to pas s the examination. Theyhave difficulty to clear the tests and many cannot cope with the pressure ofexpectations. Since the examinations are conducted only at the end of semesters,some of the students may lost out on the time and most importantly, theycannot concentrate on the next semester courses because of backlog. It isproposed that such students shall be given supplementary examinations whichshall be conducted online in the form of objective type multiple choice questions.The students appearing for the supplementary test and scoring minimum 40% inthe test shall get pass grade in the subject. This will reduce substantially thenumber of students with backlog and ATKT. Those who cannot clear thesupplementary examination, will have to appear the semester examination in thesaid subject a year later. 14.In the third meeting of the Academic Council held on23.12.2016 resolution no. 7.6 was passed approving remedialexamination for the weaker students which is as follows : 6.1 A A proposal for special Remedial Examination was proposed from the nextacademic year 2017-18 for the students who fail to pass regular examinationwith an intention to provide an immediate opportunity to clear the backlogcourses and to take the admission in higher semester without wasting a year.The nature of the proposed remedial examination will be Multiple ChoiceQuestion (MCQ) preferably conducted in online mode to avoid delays caused inpaper-based mode of evaluation. The proposed examination will be conductedfor full syllabus with similar difficulty level as that of regular examination.Students securing above 40% marks will be declared as passed in the samesubject and will be awarded only Pass grade irrespective of the marks scoredabove 40% level. The proposed examination will be an optional examinationand students may opt either MCQ based remedial examination with Pass gradeor a regular examination to be conducted in the subsequent year. 10 WP-5830-2024.doc After detailed deliberation, the Council approved the proposal with thefollowing.6.1.1 Instead of PP grade students be offered minimum passing grade.6.1.2 Student’s internal assessment will be null and void and he has to earn40% marks in objective test alone.6.1.3 If student has to improve grade, s/he has to appear for regularexamination.The Council resolved that the above item be confirmed with the abovesuggestions.6.2A A proposal was put to the Academic Council to use ‘Not Cleared (NC)phrase instead of ‘Fail(F)’ in a subject to avoid psychological pressure andsocial stigma to the students who fail to clear a subject. The Council resolvedto accept the proposal and approved the same.15.Banking upon above resolution, the provision was made inRule 2 of 2016 which is as follows : (6)Remedial ExaminationThe candidate will have an option of appearing for an Online Remedial Examination,after the declaration of each End-semester examination results, to pass the subject headwhere he/she has failed in regular end-semester examination of the semester. Thecandidate will get only EE grade if he clears the remedial examination and can continuewith the next semester. However, for improving his grade in the same subject head, thecandidate will have an option of appearing in the ‘same’ subject in the SupplementaryExamination before the regular end-Semester examination.16.The respondent/University has been conducting remedialexamination since the petitioners commenced their undergraduation upto winter-2023. Pertinently after introducing theStatutes the practice continued. To corroborate this the petitionerhas rightly referred to the Letter dated 26.10.2023, Notificationdated 12.10.2023, the resolutions, examination fees semestersgrade reports and the hall tickets. 11 WP-5830-2024.doc 17.The petitioners have been represented that there is afacility of remedial examination by the University throughperspective plan as well as Educational institutions. Statutes 2.20a (d) and 2.28 provide for Powers, Duties of Director and thatof Joint Directors,respectively. That discloses the power ofconducting online remedial examination. Thus there is consistentand long standing practice being followed by therespondent/university for conducting remedial examination. Thepetitioners relied on the facility of remedial examination.18. The University is estopped from contending that it waswithout the approval of the Chancellor as contemplated bySection 43of the Statutes or there was no sanctity of law. It hasnot been explained by the University as to how it indulged intoconducting remedial examinations if there was no approval orwhen the proposal for approval was awaiting. No steps havebeen taken by the officers of the university to solicit theapproval of the Chancellor. It is not open for the University toturn round and challenge its own rules of 2016 for remedialexamination.19.The provisions made in Statutes 2.20,2.28 corroborate thecontention of the petitioner that there existed practice ofconducting remedial examination. The Rules of 2016 providing 12 WP-5830-2024.doc for remedial examination de facto were governing the field tillits discontinuation. We do not approve the submission of learnedcounsel for the respondent that those rules have no sanctity oflaw or for want of approval.20.The facility of online remedial examination standsdiscontinued after winter-2023 examination. The petitioners aredeprived of the facility which has been in force since thecommencement of their under graduation. We do not find thatthe discontinuation is with effect from any future date so as tohave the students concerned intimation in advance. LearnedCounsel for the petitioner is right in contending that there is alegitimate expectation of the petitioner that they would get thefacility of remedial examination. He relies on the judgment ofArmy Welfare Education Society (supra). The ratio laid down infollowing paragraphs is aptly applicable to the case in hand.46. In Trigun Chand Thakur v. State of Bihar , reported in (2019) 7 SCC 513, this Court upheld the viewof a Division Bench of the Patna High Court which held that a teacher of privately managed school, eventhough financially aided by the State Government or the Board, cannot maintain a writ petition against anorder of termination from service passed by the Management. 47. In Satimbla Sharma (supra), this Court held that the unaided private minority schools over which theGovernment has no administrative control because of their autonomy under Article 30(1) of theConstitution are not “State” within the meaning of Article 12 of the Constitution. As the right to equalityunder Article 14 of the Constitution is available against the State, it cannot be claimed against unaidedprivate minority private schools. 48. The Full Bench of the Allahabad High Court in Roychan Abraham v. State of U.P., AIR 2019 All 96,after taking into consideration various decisions of this Court, held as under:- “38. Even if it be assumed that an educational institution is imparting public duty, the act 13 WP-5830-2024.doc complained of must have direct nexus with the discharge of public duty. It is undisputedly a publiclaw action which Civil Appeals @ SLP (C) Nos. 3138-3141/2021 & 3133-3137/2021 confers aright upon the aggrieved to invoke extraordinary writ jurisdiction under Article 226 for aprerogative writ. Individual wrongs or breach of mutual contracts without having any publicelement as its integral part cannot be rectified through petition under Article 226. WhereverCourts have intervened in exercise of jurisdiction under Article 226, either the service conditionswere regulated by statutory provisions or the employer had the status of “State” within theexpansive definition under Article 12 or it was found that the action complained of has public lawelement.” (Emphasis supplied).21.Our attention is adverted by learned counsel Mr. Borulkarto Statutes 3.52 to make out a case that power vest with theBoard of Examination. He refers to following relevant provisionof Statute for Constitution, Qualifications, Appointment, Powersand Duties of Officers of The University which is as follows : S3.52 Powers and duties of the Board of Examinations g) to undertake examination and evaluation reforms in order to make examination andevaluation system more efficient.22.There is no dispute that the respondent/university and itsauthorities are sole repositories of evaluation reforms inconducting the examinations. The objection is to the manner inwhich the decision has been taken. The power of discontinuingremedial examination has been misused. The contention of theMr. Borulkar that M.C.Q. would not be proper to judge anEngineering student and therefore conscious decision has beentaken cannot be accepted for the reason that the time and themannerism are not in consonance with fair play and principlesof equality. The long standing practice can be done away with 14 WP-5830-2024.doc only by following due procedure of law which is lacking.23.The special supplementary examination scheduled on12.12.2024 cannot be substituted to the remedial examination.The respondent/University can resort to due procedure fordiscontinuing the remedial examination. 24.Learned Counsel Mr. Borulkar relies on the judgment ofIndian Institute of Technology (supra) and more specificallyparagraph no. 21. to buttress the submission that the judicialreview in the educational matters has very limited scope.Learned Single Judge of the High Court interfered with thedecision of the educational institution by permitting the studentto register for Joint Entrance Examination and to appear for thesame. It was held by Supreme Court that there was noarbitrariness in the decision of the educational institutions. Inthe said backdrop, the observations in paragraph no. 21 to 24were recorded. The facts of the case before the Supreme Courtare distinguishable from present case. We have already recordedthat in the case at hand, we find arbitrariness and denial oflegitimate expectation, on the face of record. Hence thisjudgment would not assist the respondent.25.For the aforementioned reasons, we allow the Writ Petition 15 WP-5830-2024.doc by directing the respondent to conduct the remedialexamination. We therefore pass following order :ORDERi)The respondent no.2 to 4 shall conduct remedialexamination of odd as well as even semesters of the studentsincluding the petitioners who were admitted prior to Academicyear 2024 by taking necessary steps.ii)They shall permit the petitioners and the eligible studentsto appear for the remedial examination.iii)It is clarified that we have not taken away the powers ofthe Competent Authority to make the amendments or change theexamination pattern prospectively.iv)Rule is made absolute in above terms.[ SHAILESH P. BRAHME, J.] [ S. G. MEHARE, J.]V.S.J.