1. Rule. Ms. V.D. Nanavati, learned advocate appearing for the respondents waives service of notice of rule.
2. The petitioners herein have challenged Clause (3) of the amendment made in the 'Ordinances & Regulations relating to the 'Masters of Law' degree vide Circular No. 19 dated 24.06.2011 and thereby have prayed to direct respondent no.
1 University to extend the benefit of ATKT to the second semester students of LLM Course as well.
2.1 The petitioners have also prayed to direct respondent no.
1 University to allow the petitioners who have failed the second semester to proceed further to the third semester by taking admission therein, permit them to attend regular classes and participate in the internal as well as external examinations of the third semester.
3. The petitioners are students of the Respondent University pursuing LLM in Intellectual Property Law course with the University School of Law, Ahmedabad and had recently appeared for the second semester examination in which they have been declared as failed by the respondent University.
3.1 It is the case of the petitioners that the respondent University has uniformly followed the policy of 'Allowed To Keep Term' (ATKT) for all faculties including Law. However, recently the University decided to change its policy and during the two years (four semester) course of LLM, though the first and third semesters have the provision of ATKT, in a case where a student fails in his second semester examinations either due to not achieving the minimum requisite marks or does not attain the aggregate total, the student is not permitted to keep the term and appear in third semester. Being aggrieved by the said policy decision, the petitioners have preferred the present petition.
4. Mr. Chaitanya Joshi, learned advocate appearing with Mr. Sudhakar Joshi for the petitioners submitted that every other faculty like Arts, Commerce, Science, BBA & BCA has the benefit of ATKT for all the three semesters of their masters course and therefore there is no rationale in discriminating against the students pursuing LLM course.
4.1 Mr. Joshi submitted that the ATKT benefit is in general interest of the students so that one academic year is not wasted and they are allowed to keep the term and proceed further to the next semester and therefore the decision of the respondent University is causing great hardship to the students as they are neither allowed to take admission in third semester nor attend the classes nor avail hostel facility.
4.2 Mr. Joshi further submitted that the respondent University's decision not to grant ATKT only for second semester when it is available for first and third semesters, is also contrary to the Choice Based Credit System implemented by the State Government in all the State Universities at post graduate level since academic year 2010-11.
4.3 Mr. Joshi also submitted that the circular dated 17.07.2010 by the respondent University intimating the colleges about clarification of the amended Ordinance is arbitrary and illegal. He submitted that the action of the respondent University in giving the benefit of ATKT to other master courses for all the four semesters and not extending the same for LLM course is discriminative.
4.4 In support of his submissions, Mr. Joshi has relied upon the decision of the Bombay High Court in the case of Akhil Bharatiya Vidyarthi Parishad & Others vs. State of Maharashtra and Another reported in 2009(6) Bom.C.R. 634.
5. Mr. S.N. Shelat, learned Senior Counsel appearing with Ms. Nanavati, on the other hand, supporting the case of the respondents, submitted that the petitioners are bound by the Rules, Regulations and Ordinances under which they are admitted and the same shall regulate the course of studies at graduate and post graduate level.
5.1 Mr. Shelat has drawn the attention of this Court to the Ordinances and Regulations for the Three Years' LLB. Programme Choice Based Credit System (For the candidates to be admitted from academic year 2011-12 onwards) more particularly clauses (iv) & (v) and also the amended Ordinance relating to Masters of Law by which the candidate is allowed to proceed to the third semester only after clearing all the courses of first and second semester.
5.2 Mr. Shelat submitted that the recommendations for the amended Ordinances were placed before the Faculty of Law and thereafter before the Academic Council of Gujarat University which cleared the same. He submitted that it is in the interest of maintenance of quality and standard of Post Graduate Legal Education and in the interest of students that it is insisted that a student should clear papers of semester one and two before he proceeds to the third semester.
5.3 In support of his submissions, Mr. Shelat has relied upon decision of the Apex Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupeshkumar Sheth reported in AIR 1984 SC 1543 and also another decision of this Court in the case of Prashant Pravinbhai Kanabar vs. Gujarat University, Ahmedabad reported in 1990(2) GLR 1066.
6. Heard learned advocate for the petitioners and learned Senior Counsel for the respondents and perused the documents on record. The petitioners have prayed for setting aside Clause (3) of the amendment made in the 'Ordinances and Regulations relating to Masters of Law' and Circular No.
19 dated 24.06.2011. It is an admitted position that the petitioners had sought admission to LLM programme of the respondent University in June 2011. The amended Ordinance had come into force since June 2010.
7. The amended Ordinance which the petitioners have challenged reads as under:
“The candidate shall be allowed to proceed to the third semester only after clearing all the courses of first and second semester.”
7.1 At this juncture, it shall be relevant to refer to para 7 of the affidavit in reply filed by the respondents. The same reads as under:
“7. The Gujarat University implemented the Choice Based Credit System at postgraduate level from June 2010. The Ordinance/Regulation then framed were framed by the Vice Chancellor under Section 11(4) of the Gujarat University Act. When the Ordinance were again placed before the Joint Board of Studies in Law, the Joint Board of Studies in Law unanimously were of the opinion that the standard prescribed were required to be modified and has to be brought in uniformity and consonance with the Regulation and Ordinance at Undergraduate level. The Ordinance LL.B provides for examination. Ordinance 11(iv) and (v) reads as under:-
“(iv) A candidate shall be allowed to proceed to the third semester only after clearing all the courses of the first semester & second semester.
(v) Similarly, a candidate shall be allowed to proceed to the fifth semester only after clearing all the courses of the 3rd semester and 4th semester.”
7.2 Accordingly, in case a candidate fails in any oral courses of Semester-I or even remains absent in all examination in the first semester, he is permitted to continue to proceed to the second semester. However, the candidate is required to clear all the courses of first and second semester before he is permitted to proceed to the third semester.
8. In the case of Akhil Bharatiya Vidyarthi Parishad (supra), the Bombay High Court directed the respondents-Board to ensure that admission to eligible students availing ATKT facility is continued in future on same lines as for year 2009- 2010. However, the said decision is not at all applicable on the facts and circumstances of the present case as the issue involved in the said decision is totally different from the one involved in the present case.
8.1 In the case of Maharashtra State Board of Secondary and Higher Secondary Education (supra), the Apex Court in paras 14 & 29 observed as under:
“14. We shall first take up for consideration the contention that clause (3) of Regulation 104 is ultra vires the regulation-making powers of the Board. The point urged by the petitioners before the High Court was that the prohibition against the inspection or disclosure of the answer papers and other documents and the declaration made in the impugned clause that they are "treated by the Divisional Board as confidential documents" do not serve any of the purposes of the Act and hence these provisions are ultra vires. The High Court was of the view that the said contention of the petitioners had to be examined against the back- drop of the fact disclosed by some of the records produced before it that in the past there had been a few instances where some students possessing inferior merits had succeeded in passing off the answer papers of other brilliant students as their own by tampering with seat numbers or otherwise and the verification process contemplated under Regulation 104 had failed to detect the mischief. In our opinion, this approach made by the High Court was not correct or proper because the question whether a particular piece of delegated legislation- whether a rule or regulation or other type of statutory instrument-is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational acts within the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegated by the Statute. Though this legal position is well established by a long series of decisions of this Court, we have considered it necessary to reiterate it in view of the manifestly erroneous approach made by the High Court to the consideration of the question as to whether the impugned clause (3) of Regulation 104 is ultra vires. In the light of the aforesaid principles, we shall now proceed to consider the challenge levelled against the validity of the Regulation 104 (3).
29. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case.”
8.2 In the case of Prashant Pravinbhai Kanabar (supra), this Court vide para 24 has laid down as under:
“24. It has always been the approach of the Courts in such academic matters not to substitute their own opinion or views for the opinion or views expressed by expert bodies consisting of experienced teachers and academicians. While considering the challenge to the eligibility criteria fixed by Jawaharlal Nehru University for admission to the entrance examination for post-graduate courses, the Supreme Court in J. N. U. Students Union v. Jawaharlal Nehru University, AIR 1986 SC 567, observed that it is not for the Court to venture to pronounce upon question so purely academic in nature. In K.P. Ganguly's case (AIR 1984 SC 186) (supra), the Supreme Court observed that as the Academic Body had made the marks obtained at the M.B.B,S. examination as a criterion, admissions had to be given on such criterion and the High Court could not have introduced its own notions in such academic matter. It went on to observe that the High Court would not be competent to do so and had no jurisdiction to import its own ideology. Decisions taken by Academic Bodies in such matters are in the nature of policy decisions, and it would not be proper for the Courts to interfere with such policy decisions, unless they are found to be unreasonable or arbitrary. There can be two opinions with respect to such policy decisions, but the Court cannot strike down such decisions because the other view appears to it to be better or more desirable. Nor can such decisions be invalidated on the ground of arbitrariness or unreasonableness merely because they are likely to cause hardship to some individuals: As pointed out by this Court in Dr. Vikram Shah v. State, 1983 (1) 24 Guj LR 554.
"it is not safe to test the constitutionality of a rule on the touchstone of fortunes of individuals. No matter with what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some one".
Therefore, while judging the validity of rules 5.1, 5.2 and 11, what we will have to consider is whether the method adopted by the University for judging suitability of a candidate for post-graduate study is rational or not, and whether it has a reasonable nexus with the object sought to be achieved. The object sought to be achieved by the rules is obviously to secure admission to postgraduate courses to best talents. For judging merit of the student his performance at the examination is generally regarded as a sound test. If for judging his merit the University decides to take into consideration his performance at all the examinations at undergraduate level, instead of considering his performance at the last examination, which would qualify him for post-graduate studies, it cannot be said that adoption of such an eligibility criterion is arbitrary or unreasonable. Whether eligibility criteria should be broad-based or not is really for the University to decide, and it would not be proper for the Court to substitute its own views for the criteria fixed by the University. Even if it is accepted, as contended by the learned counsel for the petitioners, that a student while undergoing Ist M.B.B.S. and 2nd M.B.B.S. courses is taught only general and basic aspects of the subjects of Anatomy, Physiology, Bio-chemistry, Pharmacology, Pathology, Micro-Biology and forensic Medicine, it cannot be said that those subjects are not basic and have no relevance to the postgraduate studies in Medicine. Merely because a student, while preparing for the 3rd M.B.B.S. examination, is taught subjects more intensively, it cannot be said that only that examination can provide a dependable test for judging the ability of that student for post- graduate studies. Obviously, when a student is being prepared for M.B.B.S. Degree course, he would be taught subjects which are necessary for making him a good doctor. It is, therefore, difficult to appreciate how the eligibility criteria requiring consideration of marks at all the M.B.B.S. examination be regarded as irrational or arbitrary. The object of the rules is to secure admission to post- graduate medical course to best talents and the broad-based standard which is now fixed by the University for judging the eligibility of a candidate has definitely a rational nexus with the object sought to be achieved. If performance of a student is consistently good at all the three M.B.B.S. examinations, then he can be said to be better than a student whose performance is good only at the 3rd or last M.B.B.S. examination.”
9. In the present case also this Court is not inclined to introduce its own notions in academic matters. Decisions taken by Academic Bodies in such matters are in the nature of policy decisions and it would not be proper for this Court to interfere with such policy decisions, unless they are found to be unreasonable or arbitrary. Such decisions cannot be invalidated on the ground of arbitrariness or unreasonableness merely because they are likely to cause hardship to some individuals.
10. It is required to be noted that the academic standards are fixed by the Academic Council which controls and regulates the maintenance and standard of teaching and examinations as well as the Executive Council. The respondent University is competent to frame its own Ordinance and maintain its standard of passing for the students who join the graduate as well as post graduate level programmes offered by the University, more particularly for imparting proper education and training and for maintaining educational standards and also for curtailing the growing erosion of standards. The petitioners in the present case are admitted in the year 2011 in the second batch and are governed by the Ordinance and Regulation framed by the Gujarat University in the year 2010.
11. Perusal of the overall ordinances and regulations at graduate as well as post graduate level lead to the inference that the respondent University is justified in raising or setting its standards which is in consonance at both the levels. Moreover, the provision of ATKT is required to be treated as grace shown by the University and it cannot be termed as a matter of right by the petitioners. Thus, this Court is of the opinion that there is no substance in the present appeal for invoking extraordinary jurisdiction under Article 226 of the Constitution of India.
12. In the premises aforesaid, petition deserves to be dismissed being devoid of any merits and is accordingly dismissed. Rule is discharged.
(K.S. JHAVERI, J.) Divya//