Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Judgment delivered on: 04 August, 2011
W.P.(C) 5545/2011 and C.M.No.11331/2011
Master Vaibhav Bhardwaj ……Petitioner
Through: Mr.Sanjeev Ralli and
Mr.Sandeep Anand, Advs.
Vs.
GGSIU & Anr. ……Respondent
Through: Mr.Mukul Talwar & Mr.S.Mahapatra Advs.
Mr.Mayank Manish for Mr.Amitesh Kumar,
Advs.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.Oral:
*
.
W.P.(C) No. 5545/2011 Page 1 of 11
1. By this petition filed under Article 226 of the Constitution
of India, the petitioner seeks to direct the respondent university to
comply with the eligibility norms for B.Tech course as laid down by
the AICTE.
2. Brief facts of the case relevant for deciding the present
petition are that the petitioner appeared for the Common Entrance
Test (CET) 2011 for the course of B.Tech from the respondent
university. The petitioner scored 54% marks in the aggregate of
th
three subjects of Physics, Chemistry and Maths (PCM) in class 12
CBSE whereas the minimum percentage required in PCM for the
B.Tech course in the respondent University is 55%. The grievance
raised by the petitioner herein is that the as per the norms laid down
by the AICTE, minimum percentage in PCM required for B.Tech is
50% and the respondent cannot flout the same and fix its own
qualifying criteria.
3. Arguing the present petition, learned counsel appearing
for the petitioner submits that the University has to necessarily
follow the criteria laid down by the AICTE for admission in B.Tech
course. Counsel also submits that once the admissions in the said
course are to take place through common entrance test(CET), then
W.P.(C) No. 5545/2011 Page 2 of 11
the students qualifying the common entrance test with the minimum
eligibility criteria laid down by AICTE deserve to be considered for
admission and not as per the criteria laid down by the University
which, as per the counsel, is in conflict with the criteria laid down by
the AICTE. Counsel further submits that the same eligibility criteria
laid down by the Council is being followed by the Central Counseling
Board under the aegis of Ministry of Human Resource Development
and in AIEEE examination, 2011 conducted by the CBSE in respect of
the same very course, where more than 10 lac candidates had
appeared. In support of his arguments, counsel for the petitioner has
placed reliance on the judgment of this court in Narender Singh
Negi Vs. NCT of Delhi & Ors., 134 (2006) DLT 436 and Sumit Bhatia
& Ors. Vs. Govt. of NCT of Delhi &Ors . 2007(99) DRJ 518 .
4. Opposing the present petition, Mr. Mukul Talwar,
learned counsel for the respondent who enters appearance on
advance notice submits that the criteria of qualifying marks laid
down by the respondent University is not in any manner adverse to
the criteria laid down by the AICTE. The contention of the counsel
is that it is only when in a case where the criteria laid down by the
University is either adverse or it reduces the standard laid down by
the AICTE that the grievance can be made and not otherwise. In
W.P.(C) No. 5545/2011 Page 3 of 11
support of his arguments, counsel for the respondent has placed
reliance on the judgment of the Apex Court in State of T.N. & Anr.
Vs. S.V. Bratheep(Minor) & Ors. (2004 4 SCC 513.
5. I have heard learned counsel for the parties.
6. The cause of heartburn of the present petitioner is that
he could not have been denied admission in the B.Tech Course by
the respondent University merely because he has failed to secure
the qualifying percentage i.e. 55% aggregate marks in PCM in the
th
12 CBSE examination to seek admission in the said course
whereas he fulfills the eligibility criteria as laid down by the AICTE.
The contention of the petitioner is that as per the eligibility criteria
and the norms laid down by the AICTE for admission in the B.Tech
th
Course, the candidate is required to secure 50% aggregate in 12
exam (now 45% as per recent notification issued by the Council on
th
4 July, 2011) in three subjects i..e physics, chemistry and maths
(PCM) and the petitioner who had secured 54% marks in the PCM in
th
12 exam is fully eligible to seek admission in the said course as
per the norms laid down by the AICTE. It is therefore contended that
th
the higher percentage of 55% in PCM in 12 exam as laid down by
the respondent University is in clear conflict with the criteria of
qualifying percentage laid down by the AICTE and therefore the
W.P.(C) No. 5545/2011 Page 4 of 11
same cannot be enforced against the petitioner or such candidates
seeking admission in the said B.Tech course. It is also the case of
the petitioner that the respondent University cannot be permitted to
adopt a different criterion which is higher in standard than that laid
down by the AICTE.
7. It is not in dispute that as per the eligibility conditions
laid down by the respondent University, the qualification to seek
th
admission in B.Tech course is that the candidate must pass 12
class of 10+2 pattern of CBSE or equivalent with a minimum
aggregate of 55% marks in physics, chemistry and maths, while as
th
per the AICTE norms the qualifying percentage required in 12 exam
in PCM was 50% which now has been reduced to 45%. As per the
petitioner, this fixation of higher percentage by the respondent
university is in conflict with the qualifying percentage as laid down
by the AICTE. The said grievance raised by the petitioner cannot be
redressed in view of the legal position settled by the Apex Court in
State of T.N. Vs. S.N. Bratheep(Supra) where the court has
clearly taken a view that if higher minimum is prescribed by the
State Government than what had been prescribed by the AICTE,
then it cannot be said that such a criteria laid down by the State
Government in any manner would be adverse to the standards fixed
W.P.(C) No. 5545/2011 Page 5 of 11
by the AICTE or the same will reduce the standard fixed by it. The
Apex Court also observed that the standard fixed should always be
realistic, attainable and within the reach of the candidates. The
Apex Court further observed that excellence in higher education has
always been insisted upon in a series of decisions of the Apex Court
and this court and if higher minimum marks have been fixed as the
qualifying marks then it would certainly add to the excellence in the
matter of admission of the students in higher education. The
relevant para is reproduced as under:
“9. Entry 25 of List III and Entry 66 of List I have to be read together
and it cannot be read in such a manner as to form an exclusivity in the
matter of admission but if certain prescription of standards have been
made pursuant to Entry 66 of List I, then those standards will prevail
over the standards fixed by the State in exercise of powers under
Entry 25 of List III insofar as they adversely affect the standards laid
down by the Union of India or any other authority functioning under it.
therefore, what is to be seen in the present case is whether the
prescription of the standards made by the State Government is in any
way adverse to, or lower than, the standards fixed by the AICTE, It is
no doubt true that the AICTE prescribed two modes of admission - One
is merely dependent on the qualifying examination and the other
dependent upon the marks obtained at the Common Entrance Test.
The appellant in the present case prescribed the qualification of having
secured certain percentage of marks in the related subjects which is
higher than the minimum in the qualifying examination in order to be
eligible for admission. If higher minimum is prescribed by the State
Government than what had been prescribed by the AICTE, can it be
said that it is in any manner adverse to the standards fixed by the
AICTE or reduces the standard fixed by it? In our opinion, it does not.
On the other hand, if we proceed on the basis that the norms fixed by
the AICTE would allow admission only on the basis of the marks
obtained in the qualifying examination the additional test made
applicable is the common entrance test by the State Government. If
we proceed to take the standard fixed by the AICTE to be the common
entrance test then the prescription made by the State Government of
having obtained certain marks higher than the minimum in the
qualifying examination in order to be eligible to participate in the
W.P.(C) No. 5545/2011 Page 6 of 11
common entrance test is in addition to the common entrance test. In
either event, the streams proposed by the AICTE are not belittled in
any manner. The manner in which the High Court has proceeded is
that what has been prescribed by the AICTE is inexorable and that that
minimum alone should be taken into consideration and no other
standard could be fixed even the higher as stated by this Court in Dr.
Preeti Srivastava's case. It is no doubt true as noticed by this Court in
Adhiyaman's case that there may be situations when a large number
of seats may fall vacant on account of the higher standards fixed. The
standards fixed should always be realistic which are attainable and are
within the reach of the candidates. It cannot be said that the
prescriptions by the State Government in addition to those of AICTE in
the present case are such which are not attainable or which are not
within the reach of the candidates who seek admission for engineering
colleges. It is not very high percentage of marks that has been
prescribed as minimum of 60% downwards, but definitely higher than
the mere pass marks. Excellence in higher education is always insisted
upon by series of decisions of this Court including Dr. Preeti
Srivastava's case. If higher minimum marks have been prescribed, it
would certainly add to the excellence in the matter of admission of the
students in higher education.”
The above view has been since reiterated by the Apex Court till
recently in the case of State of U.P vs. Bhupendra Nath
Tripathi(2010)13SCC203 wherein the Court held that the there is
no quarrel with the proposition that the State in its discretion is
entitled to prescribe such qualifications as it may consider
appropriate for candidates seeking admission so long as the
qualifications so prescribed are not lower than those prescribed by
or under the concerned Act and the State can always prescribe
higher qualification. Hence, in the present case also there can be no
dispute with the proposition that the respondent university can set
its own standards for admitting students as it is responsible for
W.P.(C) No. 5545/2011 Page 7 of 11
maintaining the quality of education administered and thus cannot
be faulted with for setting a limit higher than the one prescribed by
the AICTE.
8. Another hurdle which comes in the way of the petitioner
for claiming the said relief is that he was well aware of the said
eligibility criteria through the prospectus issued by the respondent
University much prior to the conducting of Common Entrance Test.
It is not the case of the petitioner that some new condition has
been introduced by the respondent university laying down higher
standards. The petitioner was fully conscious and well aware of the
fact that if he has to seek admission in the B.Tech course in the
respondent university then necessarily he has to meet the eligibility
th
criteria of securing 55% in PCM in 12 exam. The petitioner never
chose to challenge the said criteria before declaration of result of
th
his 12 exam. The petitioner is thus estopped from challenging the
said criteria on the basis of principle of estoppel. The Apex Court in
Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors.
(2008)4SCC171 clearly held that if unsuccessful candidates
challenge that the recruitment was not done according to the
statutory rules they are estopped from challenging the selection
W.P.(C) No. 5545/2011 Page 8 of 11
criteria after having participated in the selection process without
any demur. The relevant para is reproduced as under:
“7. It is not disputed that the writ petitioners- respondents herein
participated in the process of selection knowing fully well that the
educational qualification was clearly indicated in the advertisement
itself as B.P.E. or graduate with diploma in physical education.
Having unsuccessfully participated in the process of selection
without any demur they are estopped from challenging the
selection criterion inter alia that the advertisement and selection
with regard to requisite educational qualifications were contrary to
the Rules.
………..
9. In a recent judgment in the case of Marripati Nagaraja v. The
Government of Andhra Pradesh : JT2007(12)SC407 at p.516
SCR this Court has succinctly held that the appellants had
appeared at the examination without any demur. They did not
question the validity of fixing the said date before the appropriate
authority. They are, therefore, estopped and precluded from
questioning the selection process.
We are of the view that the Division Bench of the High Court could
have dismissed the appeal on this score alone as has been done by
the learned Single Judge.”
9. Admittedly, the petitioner herein has sought to
challenge the criteria laid down by the University on the alleged
ground of the same being in conflict with the criteria laid down by
th
the AICTE after the declaration of his result in 12 exam not
securing 55% marks in 12th exam in PCM and therefore he is now
estopped from challenging the said criteria after having appeared in
Common Entrance Test fully conscious and aware of the fact that he
W.P.(C) No. 5545/2011 Page 9 of 11
th
would be eligible only if he would secure 55% marks in the 12
exam in PCM.
10. The judgments of this court cited by the petitioner in the
case of N a render Singh Negi(supra) and Sumit Bhatia(supra) relate
to the lateral entry of the petitioners to the second year of the
diploma course run by the Govt of NCT of Delhi and in both the
cases, the Court relied upon the judgment of the Apex court in the
case of State of Tamil Nadu & Anr. vs. Adhiyaman Educational and
Research Institute & Ors. (1995)4SCC104, wherein the court held
that the setting of higher standards may lead to a situation where a
large number of seats may fall vacant and thus allowed them.
However apparently the judgment of the Apex Court in the case of
S.V Bartheep(supra) was not before the court while delivering the
said two judgments in case of Narender Singh Negi and Sumit Bhatia
and it may be pertinent to mention that the Apex Court while
deciding the case of Bartheep(supra) has discussed the judgment in
the case of Adhiyaman Educational and Research Institute and for
the sake of repetition, the relevant para is reproduced again here as
under:
“It is no doubt true as noticed by this Court in Adhiyaman's case that
there may be situations when a large number of seats may fall vacant on
account of the higher standards fixed. The standards fixed should always
be realistic which are attainable and are within the reach of the
candidates. It cannot be said that the prescriptions by the State
W.P.(C) No. 5545/2011 Page 10 of 11
Government in addition to those of AICTE in the present case are such
which are not attainable or which are not within the reach of the
candidates who seek admission for engineering colleges. It is not very
high percentage of marks that has been prescribed as minimum of 60%
downwards, but definitely higher than the mere pass marks. Excellence in
higher education is always insisted upon by series of decisions of this
Court including Dr. Preeti Srivastava's case. If higher minimum marks
have been prescribed, it would certainly add to the excellence in the
matter of admission of the students in higher education.”
Hence, it is clear that the court insisted upon attainable and realistic
standards and in the case at hand, prescribing 55% marks is not a
th
very high standard so far class 12 marks in PCM are concerned and
is only view a view to promote excellence and quality and therefore
cannot be dubbed as illegal or arbitrary.
11. Hence, in the light of the above, there is no merit in the
present petition and the same is accordingly dismissed at the
preliminary stage itself.
KAILASH GAMBHIR, J
AUGUST 04, 2011
Dc/mg
W.P.(C) No. 5545/2011 Page 11 of 11
th
Judgment delivered on: 04 August, 2011
W.P.(C) 5545/2011 and C.M.No.11331/2011
Master Vaibhav Bhardwaj ……Petitioner
Through: Mr.Sanjeev Ralli and
Mr.Sandeep Anand, Advs.
Vs.
GGSIU & Anr. ……Respondent
Through: Mr.Mukul Talwar & Mr.S.Mahapatra Advs.
Mr.Mayank Manish for Mr.Amitesh Kumar,
Advs.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.Oral:
*
.
W.P.(C) No. 5545/2011 Page 1 of 11
1. By this petition filed under Article 226 of the Constitution
of India, the petitioner seeks to direct the respondent university to
comply with the eligibility norms for B.Tech course as laid down by
the AICTE.
2. Brief facts of the case relevant for deciding the present
petition are that the petitioner appeared for the Common Entrance
Test (CET) 2011 for the course of B.Tech from the respondent
university. The petitioner scored 54% marks in the aggregate of
th
three subjects of Physics, Chemistry and Maths (PCM) in class 12
CBSE whereas the minimum percentage required in PCM for the
B.Tech course in the respondent University is 55%. The grievance
raised by the petitioner herein is that the as per the norms laid down
by the AICTE, minimum percentage in PCM required for B.Tech is
50% and the respondent cannot flout the same and fix its own
qualifying criteria.
3. Arguing the present petition, learned counsel appearing
for the petitioner submits that the University has to necessarily
follow the criteria laid down by the AICTE for admission in B.Tech
course. Counsel also submits that once the admissions in the said
course are to take place through common entrance test(CET), then
W.P.(C) No. 5545/2011 Page 2 of 11
the students qualifying the common entrance test with the minimum
eligibility criteria laid down by AICTE deserve to be considered for
admission and not as per the criteria laid down by the University
which, as per the counsel, is in conflict with the criteria laid down by
the AICTE. Counsel further submits that the same eligibility criteria
laid down by the Council is being followed by the Central Counseling
Board under the aegis of Ministry of Human Resource Development
and in AIEEE examination, 2011 conducted by the CBSE in respect of
the same very course, where more than 10 lac candidates had
appeared. In support of his arguments, counsel for the petitioner has
placed reliance on the judgment of this court in Narender Singh
Negi Vs. NCT of Delhi & Ors., 134 (2006) DLT 436 and Sumit Bhatia
& Ors. Vs. Govt. of NCT of Delhi &Ors . 2007(99) DRJ 518 .
4. Opposing the present petition, Mr. Mukul Talwar,
learned counsel for the respondent who enters appearance on
advance notice submits that the criteria of qualifying marks laid
down by the respondent University is not in any manner adverse to
the criteria laid down by the AICTE. The contention of the counsel
is that it is only when in a case where the criteria laid down by the
University is either adverse or it reduces the standard laid down by
the AICTE that the grievance can be made and not otherwise. In
W.P.(C) No. 5545/2011 Page 3 of 11
support of his arguments, counsel for the respondent has placed
reliance on the judgment of the Apex Court in State of T.N. & Anr.
Vs. S.V. Bratheep(Minor) & Ors. (2004 4 SCC 513.
5. I have heard learned counsel for the parties.
6. The cause of heartburn of the present petitioner is that
he could not have been denied admission in the B.Tech Course by
the respondent University merely because he has failed to secure
the qualifying percentage i.e. 55% aggregate marks in PCM in the
th
12 CBSE examination to seek admission in the said course
whereas he fulfills the eligibility criteria as laid down by the AICTE.
The contention of the petitioner is that as per the eligibility criteria
and the norms laid down by the AICTE for admission in the B.Tech
th
Course, the candidate is required to secure 50% aggregate in 12
exam (now 45% as per recent notification issued by the Council on
th
4 July, 2011) in three subjects i..e physics, chemistry and maths
(PCM) and the petitioner who had secured 54% marks in the PCM in
th
12 exam is fully eligible to seek admission in the said course as
per the norms laid down by the AICTE. It is therefore contended that
th
the higher percentage of 55% in PCM in 12 exam as laid down by
the respondent University is in clear conflict with the criteria of
qualifying percentage laid down by the AICTE and therefore the
W.P.(C) No. 5545/2011 Page 4 of 11
same cannot be enforced against the petitioner or such candidates
seeking admission in the said B.Tech course. It is also the case of
the petitioner that the respondent University cannot be permitted to
adopt a different criterion which is higher in standard than that laid
down by the AICTE.
7. It is not in dispute that as per the eligibility conditions
laid down by the respondent University, the qualification to seek
th
admission in B.Tech course is that the candidate must pass 12
class of 10+2 pattern of CBSE or equivalent with a minimum
aggregate of 55% marks in physics, chemistry and maths, while as
th
per the AICTE norms the qualifying percentage required in 12 exam
in PCM was 50% which now has been reduced to 45%. As per the
petitioner, this fixation of higher percentage by the respondent
university is in conflict with the qualifying percentage as laid down
by the AICTE. The said grievance raised by the petitioner cannot be
redressed in view of the legal position settled by the Apex Court in
State of T.N. Vs. S.N. Bratheep(Supra) where the court has
clearly taken a view that if higher minimum is prescribed by the
State Government than what had been prescribed by the AICTE,
then it cannot be said that such a criteria laid down by the State
Government in any manner would be adverse to the standards fixed
W.P.(C) No. 5545/2011 Page 5 of 11
by the AICTE or the same will reduce the standard fixed by it. The
Apex Court also observed that the standard fixed should always be
realistic, attainable and within the reach of the candidates. The
Apex Court further observed that excellence in higher education has
always been insisted upon in a series of decisions of the Apex Court
and this court and if higher minimum marks have been fixed as the
qualifying marks then it would certainly add to the excellence in the
matter of admission of the students in higher education. The
relevant para is reproduced as under:
“9. Entry 25 of List III and Entry 66 of List I have to be read together
and it cannot be read in such a manner as to form an exclusivity in the
matter of admission but if certain prescription of standards have been
made pursuant to Entry 66 of List I, then those standards will prevail
over the standards fixed by the State in exercise of powers under
Entry 25 of List III insofar as they adversely affect the standards laid
down by the Union of India or any other authority functioning under it.
therefore, what is to be seen in the present case is whether the
prescription of the standards made by the State Government is in any
way adverse to, or lower than, the standards fixed by the AICTE, It is
no doubt true that the AICTE prescribed two modes of admission - One
is merely dependent on the qualifying examination and the other
dependent upon the marks obtained at the Common Entrance Test.
The appellant in the present case prescribed the qualification of having
secured certain percentage of marks in the related subjects which is
higher than the minimum in the qualifying examination in order to be
eligible for admission. If higher minimum is prescribed by the State
Government than what had been prescribed by the AICTE, can it be
said that it is in any manner adverse to the standards fixed by the
AICTE or reduces the standard fixed by it? In our opinion, it does not.
On the other hand, if we proceed on the basis that the norms fixed by
the AICTE would allow admission only on the basis of the marks
obtained in the qualifying examination the additional test made
applicable is the common entrance test by the State Government. If
we proceed to take the standard fixed by the AICTE to be the common
entrance test then the prescription made by the State Government of
having obtained certain marks higher than the minimum in the
qualifying examination in order to be eligible to participate in the
W.P.(C) No. 5545/2011 Page 6 of 11
common entrance test is in addition to the common entrance test. In
either event, the streams proposed by the AICTE are not belittled in
any manner. The manner in which the High Court has proceeded is
that what has been prescribed by the AICTE is inexorable and that that
minimum alone should be taken into consideration and no other
standard could be fixed even the higher as stated by this Court in Dr.
Preeti Srivastava's case. It is no doubt true as noticed by this Court in
Adhiyaman's case that there may be situations when a large number
of seats may fall vacant on account of the higher standards fixed. The
standards fixed should always be realistic which are attainable and are
within the reach of the candidates. It cannot be said that the
prescriptions by the State Government in addition to those of AICTE in
the present case are such which are not attainable or which are not
within the reach of the candidates who seek admission for engineering
colleges. It is not very high percentage of marks that has been
prescribed as minimum of 60% downwards, but definitely higher than
the mere pass marks. Excellence in higher education is always insisted
upon by series of decisions of this Court including Dr. Preeti
Srivastava's case. If higher minimum marks have been prescribed, it
would certainly add to the excellence in the matter of admission of the
students in higher education.”
The above view has been since reiterated by the Apex Court till
recently in the case of State of U.P vs. Bhupendra Nath
Tripathi(2010)13SCC203 wherein the Court held that the there is
no quarrel with the proposition that the State in its discretion is
entitled to prescribe such qualifications as it may consider
appropriate for candidates seeking admission so long as the
qualifications so prescribed are not lower than those prescribed by
or under the concerned Act and the State can always prescribe
higher qualification. Hence, in the present case also there can be no
dispute with the proposition that the respondent university can set
its own standards for admitting students as it is responsible for
W.P.(C) No. 5545/2011 Page 7 of 11
maintaining the quality of education administered and thus cannot
be faulted with for setting a limit higher than the one prescribed by
the AICTE.
8. Another hurdle which comes in the way of the petitioner
for claiming the said relief is that he was well aware of the said
eligibility criteria through the prospectus issued by the respondent
University much prior to the conducting of Common Entrance Test.
It is not the case of the petitioner that some new condition has
been introduced by the respondent university laying down higher
standards. The petitioner was fully conscious and well aware of the
fact that if he has to seek admission in the B.Tech course in the
respondent university then necessarily he has to meet the eligibility
th
criteria of securing 55% in PCM in 12 exam. The petitioner never
chose to challenge the said criteria before declaration of result of
th
his 12 exam. The petitioner is thus estopped from challenging the
said criteria on the basis of principle of estoppel. The Apex Court in
Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors.
(2008)4SCC171 clearly held that if unsuccessful candidates
challenge that the recruitment was not done according to the
statutory rules they are estopped from challenging the selection
W.P.(C) No. 5545/2011 Page 8 of 11
criteria after having participated in the selection process without
any demur. The relevant para is reproduced as under:
“7. It is not disputed that the writ petitioners- respondents herein
participated in the process of selection knowing fully well that the
educational qualification was clearly indicated in the advertisement
itself as B.P.E. or graduate with diploma in physical education.
Having unsuccessfully participated in the process of selection
without any demur they are estopped from challenging the
selection criterion inter alia that the advertisement and selection
with regard to requisite educational qualifications were contrary to
the Rules.
………..
9. In a recent judgment in the case of Marripati Nagaraja v. The
Government of Andhra Pradesh : JT2007(12)SC407 at p.516
SCR this Court has succinctly held that the appellants had
appeared at the examination without any demur. They did not
question the validity of fixing the said date before the appropriate
authority. They are, therefore, estopped and precluded from
questioning the selection process.
We are of the view that the Division Bench of the High Court could
have dismissed the appeal on this score alone as has been done by
the learned Single Judge.”
9. Admittedly, the petitioner herein has sought to
challenge the criteria laid down by the University on the alleged
ground of the same being in conflict with the criteria laid down by
th
the AICTE after the declaration of his result in 12 exam not
securing 55% marks in 12th exam in PCM and therefore he is now
estopped from challenging the said criteria after having appeared in
Common Entrance Test fully conscious and aware of the fact that he
W.P.(C) No. 5545/2011 Page 9 of 11
th
would be eligible only if he would secure 55% marks in the 12
exam in PCM.
10. The judgments of this court cited by the petitioner in the
case of N a render Singh Negi(supra) and Sumit Bhatia(supra) relate
to the lateral entry of the petitioners to the second year of the
diploma course run by the Govt of NCT of Delhi and in both the
cases, the Court relied upon the judgment of the Apex court in the
case of State of Tamil Nadu & Anr. vs. Adhiyaman Educational and
Research Institute & Ors. (1995)4SCC104, wherein the court held
that the setting of higher standards may lead to a situation where a
large number of seats may fall vacant and thus allowed them.
However apparently the judgment of the Apex Court in the case of
S.V Bartheep(supra) was not before the court while delivering the
said two judgments in case of Narender Singh Negi and Sumit Bhatia
and it may be pertinent to mention that the Apex Court while
deciding the case of Bartheep(supra) has discussed the judgment in
the case of Adhiyaman Educational and Research Institute and for
the sake of repetition, the relevant para is reproduced again here as
under:
“It is no doubt true as noticed by this Court in Adhiyaman's case that
there may be situations when a large number of seats may fall vacant on
account of the higher standards fixed. The standards fixed should always
be realistic which are attainable and are within the reach of the
candidates. It cannot be said that the prescriptions by the State
W.P.(C) No. 5545/2011 Page 10 of 11
Government in addition to those of AICTE in the present case are such
which are not attainable or which are not within the reach of the
candidates who seek admission for engineering colleges. It is not very
high percentage of marks that has been prescribed as minimum of 60%
downwards, but definitely higher than the mere pass marks. Excellence in
higher education is always insisted upon by series of decisions of this
Court including Dr. Preeti Srivastava's case. If higher minimum marks
have been prescribed, it would certainly add to the excellence in the
matter of admission of the students in higher education.”
Hence, it is clear that the court insisted upon attainable and realistic
standards and in the case at hand, prescribing 55% marks is not a
th
very high standard so far class 12 marks in PCM are concerned and
is only view a view to promote excellence and quality and therefore
cannot be dubbed as illegal or arbitrary.
11. Hence, in the light of the above, there is no merit in the
present petition and the same is accordingly dismissed at the
preliminary stage itself.
KAILASH GAMBHIR, J
AUGUST 04, 2011
Dc/mg
W.P.(C) No. 5545/2011 Page 11 of 11