Ejaz Ashraf v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **FRIDAY, THE 28TH DAY OF SEPTEMBER 2012/6TH ASWINA 1934** ## **WP(C).No. 18327 of 2012 (M)** **----------------------------------------** ## **PETITIONER:** ## **-------------------** **EJAZ ASHRAF, PATTAPPALLY HOUSE, THADICADU.P.O., ANCHAL, KOLLAM DISTRICT.** **BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE, ADVS. SRI.TONY GEORGE KANNANTHANAM, SRI.JIJI THOMAS.** ## **RESPONDENTS:** **------------------------** **1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HUMAN RESOURCE DEVELOPMENT, NEW DELHI-110 001.** **2. THE INDIAN INSTITUTE OF SCIENCE EDUCATION & RESEARCH, REPRESENTED BY ITS DIRECTOR, CET CAMPUS, ENGINEERING COLLEGE.P.O., TRIVANDRUM-695 016.** ## **3. THE REGISTRAR,** **THE INDIAN INSTITUTE OF SCIENCE EDUCATION & RESEARCH, CET CAMPUS, ENGINEERING COLLEGE.P.O, TRIVANDRUM-695 016.** **R1 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA, R3 BY ADV. SRI.MILLU DANDAPANI.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2012, THE COURT ON 28/09/2012 DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.18327/2012-M:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **P1TRUE COPY OF THE MARK LIST OF THE PETITIONER ISSUED BY C.B.S.E. BOARD.** - **P2TRUE COPY OF THE IMPROVED MARK LIST OF -DO-** - **P3TRUE COPY OF THE STATEMENT OF MARKS OBTAINED BY THE PETITIONER FOR HIS PLUS TWO COURSE.** - **P4TRUE COPY OF THE PRINT OUT OF THE APPLICATION GIVEN 'ON LINE'.** - **P5TRUE COPY OF THE INVITATION TO PARTICIPATE FOR AN APTITUDE TEST AND COUNSELLING TO BE HELD ON 14.7.2012.** - **P6TRUE COPY OF THE INTIMATION DATED 16.7.2012, INFORMING THE PETITIONER OF HIS ADMISSION.** - **P7TRUE COPY OF THE FEE RECEIPT EVIDENCING PAYMENT OF FEES.** - **P8TRUE COPY OF THE COMMUNICATION DATED 30.7.2012 TO THE PETITIONER.** - **P9TRUE COPY OF THE PRINT OUT OF THE MINIMUM STIPULATED MARKS CUT-OFF FOR 2011-12 OF THE PETITIONER.** - **P10TRUE COPY OF THE REPRESENTATION DATED 31.7.2012 FROM THE PETITIONER.** - **P11TRUE COPY OF THE REPLY DATED 1.8.2012 TO THE PETITIONER.** - **P12TRUE COPY OF THE PAT I(3) OF THE SENIOR SCHOOL CURRICULUM 2011, OF THE C .B.S.E.** ## **RESPONDENTS' EXHIBITS:** - **R3.A: TRUE COPY OF THE CHEQUE AND FORWARDING LETTER NO. IISERTVM/REG/2012 DTD. 01/08/2012 ISSUED BY R.3.** - **R3.B: TRUE COPY OF POSTAL RECEIPT (SPEED POST) ADDRESSED TO MR.EJAZ ASHRAF.** - **R3.C: COPY OF THE NOTIFICATION ISSUED BY THE MINISTRY OF SCIENCE & TECHNOLOGY, DEPARTMENT OF SCIENCE AND TECHNOLOGY INVITING APPLICATIONS FOR GRANT OF SCHOLARSHIP UNDER THE INSPIRE SCHEME FOR THE YEAR 2012 ALONG WITH THE TABLE PRESCRIBING THE PERCENTAGE OF CUT-OFF MARKS FOR VARIOUS STATE BOARDS AND C B S E BOARD WITH THE “EXPLANATION” REGARDING THE CALCULATION OF THE PERCENTAGE.** ## **W.P.(C).NO.18327/2012-M:** **EXT.R3.D: COPIES OF THE COMMUNICATIONS ISSUED BY THE R.3. VIDE NO. IISERTVM/REG/2012 DTD. 30/07/2012 & 01/08/2012 TO MS. ANUSREE ANIL AND SHRI ANUJITH, CANCELLING THEIR ADMISSION AND REFUNDING THE ADMISSION FEE.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C).No. 18327 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 28TH DAY OF SEPTEMBER, 2012** ## **JUDGMENT** The action of the respondents in cancelling the admission granted to the petitioner to the BS-MS Degree Programme of the second respondent, is under challenge in this writ petition. 2. The second respondent is the Indian Institute of Science Education & Research, Thiruvananthapuram (shortly stated 'IISER'). The same is established under the National Institute of Technology Act, 2007 and is directly under the Ministry of Human Resource Development, Government of India. The institute at Thiruvananthapuram is one among the five and the petitioner applied for admission in Thiruvananthapuram centre after having passed the Plus Two examination in the CBSE stream. 3. The petitioner's application was accepted and accordingly he was granted admission also, based on which he remitted the semester fee as evident from Ext.P6 intimation and Ext.P7 is the copy of the receipt. Ext.P8 is the copy of the communication issued to the petitioner by which he was informed that the admission stands cancelled, on the ground that he does not have the minimum required cut-off marks. After getting the W.P.(C).No.18327/2012 -2- details of the minimum stipulated marks from the website mentioned in Ext.P8, produced as Ext.P9 herein, he filed a representation as per Ext.P10 contending that he is eligible for grant of admission and a reply was given as per Ext.P11 rejecting his contentions. 4. The petitioner's contentions are the following: Exts.P1 and P2 are the copies of the mark list for the CBSE examination undertaken by the petitioner. He has obtained good marks for English, Mathematics, Physics, Chemistry, Biology and Malayalam. Without Malayalam, the aggregate percentage of the marks which the petitioner obtained is 92.6% after improvement. With Malayalam, the percentage will come down to 87.66%. The required percentage for admission as evident from Ext.P9, is 93.20 and as far as OBC candidates are concerned, there is a 5% relaxation also, for which he is eligible. 5. Apart from that, it is mainly contended that for arriving the percentage, the marks obtained by the petitioner in Mathematics, Physics, Chemistry and Biology which are the “subjects” alone are required to be taken. It is also the case of the petitioner that for the CBSE Examination he had opted English as the core subject and Malayalam is only an additional elective and actually the student need attend only five papers and therefore W.P.(C).No.18327/2012 **==> picture [15 x 9] intentionally omitted <==** the marks obtained by him in Malayalam ought not have been reckoned. It is also stated that in Ext.P9 it was only mentioned that the percentage of marks required is only in respect of the “subjects” but in Ext.P11 the same stands modified by notifying that the “aggregate marks” have to be taken. 6. The petitioner has produced Ext.P12 the Scheme of Studies of CBSE in support of the plea that as far as Malayalam is concerned, it was only an additional elective and therefore the marks of Malayalam are not required to be added for reckoning the percentage. The further argument raised by the learned Senior Counsel for the petitioner is that the course offered by the IISER is pure Science and the marks of languages are totally irrelevant. Therefore, the marks of “subjects” alone can be taken into consideration, meaning thereby that the marks obtained in Chemistry, Physics, Biology and Mathematics alone need be taken and if so, the petitioner is well above the cut of mark. Alternatively it is pleaded that even if a different view is taken, then the marks of subjects which are required to be passed for Plus Two examination alone need be taken, meaning thereby that Malayalam was an additional elective subject and the marks of Malayalam need not be reckoned. Thus, it is submitted W.P.(C).No.18327/2012 -4- that merely for the fact that the petitioner appeared for one more paper in Malayalam in terms of the scheme under Ext.P12, he need not be penalised for the same. The said contention has been raised in the light of the relevant clauses of Ext.P12. 8. The counter affidavit filed by the third respondent gives the following reasons for rejecting the candidature of the petitioner. The aggregate percentage, going by the marks of the six subjects of the petitioner, will be 87.66%. For the CBSE students, the cut of marks prescribed by Ext.P9 is 93.2% with a relaxation of 5% for OBC (non creamy layer) candidates. In the application Ext.P4, he had stated that he is having 92.6% in the CBSE Class XII examination and he belongs to OBC (non creamy layer). By considering the same, the application was accepted and he was permitted to appear for the counselling on 14.7.2012. Only when the original certificates were produced, the matter was further examined and going by Ext.P9, the formula for calculating the percentage of marks is marks obtained by the student in all subjects x 100/ maximum possible marks. Therefore, the aggregate marks in all the subjects taken for class XII will have to be calculated. If that be so, herein the petitioner has got only 87.66% which is below the cut off marks prescribed for CBSE W.P.(C).No.18327/2012 -5- students, i.e. below 88.2 (with 5% relaxation for OBC non creamy layer). It is also stated that the guidelines for admission are uniform in all the five IISER. 9. It is further pointed out in the counter affidavit that the CBSE marks statement does not differentiate between language and subject and therefore the distinction sought to be drawn by the petitioner cannot be accepted. The contention of the petitioner that since the course offered by the IISER is one of pure science, the marks of languages are not to be taken, is also disputed by submitting that the admission procedure is uniform in all the institutions. The percentage of marks is reckoned on the basis of the total marks of all the subjects taken by a student for class XII Board Examination, irrespective of whether the same is a language or otherwise. 10. Heard learned Senior Counsel for the petitioner Shri Kurian George Kannanthanam and learned Senior Counsel for respondents 2 and 3, Smt. Sumathi Dandapani and Shri Benny Gervasis. 11. Learned Senior Counsel for the petitioner Shri Kurian George Kannanthapuram submitted that a brilliant student is now denied admission for flimsy and technical reasons. It is submitted that the percentage of marks of the petitioner is well above the cut off marks fixed, since the marks W.P.(C).No.18327/2012 -6- in respect of Mathematics, Physics, Chemistry and Biology alone are to be counted. Even if the marks of English are also to be taken, going by the stipulations in Ext.P9, then also the petitioner will be well above the limit. It is further submitted that in Ext.P9 what is mentioned is that the total marks obtained in “all subjects” will be the criteria, whereas in Ext.P11 which is the reply given to the representation, what is stated is that the cut off is based on the “aggregate marks” obtained by the student in XII standard board examination, which is at variance with the earlier one. 12. Learned Senior Counsel further explained with reference to Ext.P12 scheme for CBSE examination that clause 3.1 will show that the two languages can be core/elective and in terms of Note 3, a candidate has the freedom to offer, in lieu of one of the two languages, any other elective subject and accordingly the petitioner opted Biology also. My attention is invited to the clause under the heading “Additional Subject” which shows that a candidate can also offer an additional elective which may either be a language at elective level or any other elective subject and it is submitted that the petitioner accordingly opted Malayalam. It is therefore submitted that the same was only optional and not mandatory and it cannot have any bearing on the issue. It is further submitted that the petitioner W.P.(C).No.18327/2012 -7- being a highly dedicated student having obtained very substantial marks in subjects, cannot be denied admission on such technicalities. Learned Senior Counsel also submitted that the additional counter affidavit filed before this Court will show that there is no specific regulation as far as the admission procedure is concerned and this will also justify the stand of the petitioner. 13. Learned Senior Counsel for respondents 2 and 3 Smt. Sumathi Dandapani submitted that as far as the admission process is concerned, a uniform procedure has been adopted. After the new enactment has come into force, First Statutes of the Institute are to be framed by the Central Government. While explaining the admission process, it is submitted that a common procedure has been undertaken by the Joint Admission Committee authorised by the Directors of the Institutes, which consists of Faculty Members of all the five IISERs. This was published on-line with all the relevant information on a dedicated IISERs Admission website for the applicants. 14. It is explained that the distinction sought to be drawn by the petitioner between the wordings in Ext.P9 and P11 are not correct. Both are the same, viz. for counting the percentage, the marks obtained in all the papers will have to be reckoned. It is submitted that the interpretation given W.P.(C).No.18327/2012 -8- to the word “subjects” by the petitioner cannot be accepted as it is not confined to Science subjects alone. 15. In the absence of any regulation framed by the respondents to exclude languages, the petitioner cannot seek for such a direction before this Court. It is submitted that what governs the matter is the admission procedure which alone has been followed in true letter and spirit. 16. The question is whether the eligibility condition for admission as provided under Ext.P9 as well as those stipulated in Ext.P11 vary, as contended by the learned Senior Counsel for the petitioner. 17. A reference to Ext.P9 will show that therein the formula prescribed for calculating the percentage of marks is total marks obtained in all the subjects x 100/maximum possible marks. The petitioner's approach is to understand the word “subjects” as concerning Science subjects alone and not one including languages. There are many imponderables to accept such a plea. Firstly, even in Ext.P1, the marks card issued by the CBSE, in the second column the caption given is “Subject” and it starts from English onwards and all the Science subjects and others including languages are put together in the same column. Therefore, there is no distinction as far as the subjects and languages, even going by Exts.P1 and Ext.P2. As far as the W.P.(C).No.18327/2012 -9- admission procedure is concerned, mainly it is a matter for the Academic Body which conducts admission itself, to regulate the process. It depends upon the decisions, regulations, if any, and other factors. Therefore, if in respect of all the candidates who have competed for admission, the percentage is taken based on the total marks without having any distinction in respect of the marks obtained in Science subjects and languages, the petitioner cannot successfully plead for excluding the marks of languages, that too in the absence of any regulation or other instructions in the matter. Therefore, evidently the words “all subjects” in Ext.P9 will take in Science subjects and languages put together. In Ext.P11 what is mentioned is that the cut-off marks is based on the aggregate marks obtained by the student in XII standard board examination. Therefore, the aggregate marks of all the subjects and languages put together will have to be taken. Understood in the above manner, it cannot be said that the specific clauses in Exts.P9 and P11 vary each other. Therefore, the said argument is rejected. 18. The next question is whether as far as the petitioner is concerned, there is any method by which the marks of the additional subject could be excluded, as vehemently contended by the learned Senior Counsel for the petitioner. Ext.P12 Scheme of Studies, of course under para W.P.(C).No.18327/2012 -10- 3.1 (I & II) makes a provision for two languages (core/elective) out of various languages mentioned therein. Note 3 gives a candidate freedom to offer one elective subject in lieu of the two languages as itemised under clause III. The additional subject which can be chosen as elective may either be a language or any other elective subject. In fact, there is nothing in Ext.P12 to show that the marks of the additional subject thus chosen will not form part of the marks card issued to the candidate. Even if Malayalam was added as an additional subject by the petitioner, there is no method by which the same can be excluded from consideration while reckoning the aggregate marks. Learned Senior Counsel for the petitioner submits that unless the same is excluded, it may result in adopting different yardsticks for a candidate who has not opted any additional subject and a candidate who has chosen an additional subject and the second category should not be put to disadvantage. As rightly pointed out by the learned Senior Counsel for the respondents and as contended by the third respondent in the counter affidavit, if a choice is given to exclude marks which are disadvantageous to the candidate, as per the choice of the candidate itself, that may create confusion in the admission process. Different contingencies may arise as far as the respective candidates are concerned, since candidates may get W.P.(C).No.18327/2012 -11- lesser marks in Mathematics, Physics, Chemistry or Biology or even in Malayalam and English. 19. Unless such a method is provided by the rules or admission procedures of the second respondent, the petitioner cannot insist for the same. Therefore, the said contention is also rejected. Evidently, unless the marks of Malayalam is excluded, the petitioner will not be having the required percentage. The contention that the word “subjects” will indicate only Science subjects also, cannot be accepted for the reasons already stated, even though the course in question is in a Science stream. All those contingencies, unless provided under the regulations of admission, this Court cannot invent any such method to regulate an admission process wherein so many candidates may participate. The Court cannot sit in appeal over the decisions of the academic bodies which are taken bonafide and in the absence of any arbitrariness in the entire process. 20. An argument has been advanced by the learned Senior Counsel for the petitioner that the contentions in the additional affidavit will show that no proper rules have been adopted by the respondents for completing the admission process. It is therefore submitted that the process described in Exts.P9 and P11 has no legal support. W.P.(C).No.18327/2012 -12- 21. It was pointed out by the learned Senior Counsel for respondents 2 and 3 that the process adopted for admission in the absence of any provisions under the Act and the Statutes, cannot be held as arbitrary, since a uniform process has been adopted by the competent body, viz. the Joint Admission Committee authorised by the Directors of the Institutes. I find force in the above submission. The Institutions are at their infancy and even in the absence of statutory regulations as they are yet to be framed, an admission process will have to be regulated by any known method and herein such methods and standards have been laid down by the competent body which does not lack any power to do so. Therefore, the contention of the learned Senior Counsel for the petitioners cannot be accepted. 22. One of the decisions relied upon on behalf of respondents 2 and 3 is that of a Division Bench of this Court in **Varghese George v. State of Kerala and another** (2012 (3) KLJ 394), wherein in para 10 the following principles have been laid down: “The relative significance given to subjects is in consonance with the course of study for which entrance is held. A student opting for Chemistry and Biology cannot say that his marks for Biology be considered though it is not a subject for the entrance or for the course. Academics are best left to academicians. We see that no W.P.(C).No.18327/2012 **==> picture [21 x 9] intentionally omitted <==** ground is made out for judicial interference which would be done with such matters only in exceptionally exceptional situations where palpable perversity is writ large. Otherwise, the judiciary will keep its hands off the domain. Overreach by judicial review cannot extend to deciding the relative significance of subjects.” The like contention has also been rejected therein by holding the view that Academics are best left to academicians and only if palpable perversity is writ large and such exceptional circumstances are there, this Court can interfere. 23. Learned Senior Counsel for the petitioner lastly submitted that the seat will be wasted and the petitioner also will be put to difficulties, since he will not be able to seek admission in any other colleges now. But the true aspect whether he is eligible for admission alone can be considered by this Court. For all these reasons, I find no reason to interfere with the order impugned. Hence, the writ petition is dismissed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** **kav/**