University of North Bengal and Others Vs. Kenedy Roy and Others - Court Judgment

Excerpt:
- orderprabir kumar majumdar, j.1. this appeal is from an order dated sept. 7, 1993 passed by a learned judge of this court on an application filed by the respondents under art. 226 of the constitution for postponement of m.a./m.sc./m.com. part i and part ii (annual) examination, 1992 scheduled to be held on sept. 10, 1993 by the appellant university.2. the respondents moved the court of first in instance on sept. 7, 1993 praying, inter alia, for postponement of the said m.a./ m.sc./m.com. part i and part ii (annual) examination, 1992 on the ground of devastating flood at aliporeduar in the district of jalfaigari and some parts in the district of cooch bahar in north bengal. the said application was moved just three days before the said examination of 1992 which was to commence on sept. 10, 1993. it is alleged by the appellant that the writ petitioners' advocate on record served a notice of such application on sept. 6, 1993 at 4.30 p.m. on the learned advocate for the appellant mr. dipak kumar bannerjee.3. it is stated in the writ petition that the said m.a. examination of 1992 was originally scheduled to be held on august 26, 1993. in view of devastating flood in some parts of north bengal, the writ petitioners made representation sometime in august, 1993 to the vice-chancellor of the said university requesting to postpone the said examination by about two months to enable the writ petitioners and other examinees to make adequate preparation for the said examination.4. it is also the case of the writ petitioners that the university also postponed the other examinations, viz. undergraduate examination of 1993 and also intermediate and final ll.b. examination, 1993 till nov. 1993. it is stated that in view of such postponement of said examinations, the writ petitioners were under the impression that said post graduate examination would also be postponed till nov. 1993. but on august 16 or 17, 1993 they came to know that a notice dated august 7, 1993 was hung up on the notice board announcing the programme of m.a. part i and part ii (annual) examination, 1992 commencing on sept. 10, 1993 and to continue till october 1, 1993, the writ petitioners challenging the said notice dated august 7, 1993 praying for postponement of the said examination by about two months.5. the learned trial judge disposed of the said writ petition by the order under appeal dated sept. 7, 1993 observing that it was well known that due to flood in north bengal abnormal situation was prevailing there and the university should take a practical view ofthe matter. it was stated that several examinations were re-scheduled by the university. in that view of the matter the vice-chancellor and controller of examinations of the university of north bengal were directed to re-schedule all the post graduate examinations part i and part ii for the session, 1992 after giving two months' notice. a plain copy of the said order was issued to the parties for communication and compliance.6. this appeal together with the stay application has been assigned to this bench by the hon'ble chief justice.7. the advocate-general appearing on behalf of the appellant university has argued that the university authorities have fixed the said time schedule after consideration of all aspects of the case as also the said flood situation in the area. it is the submission of the learned advocate-general that by a representation in writing dated 26th july, 1993, the north bengal students' union made a request for postponement of the said post graduate examination, 1992 fixed for 26th august, 1993 by a further period of 15 days. the faculty council in a meeting held on july 31, 1993 decided to start m.a./m.sc./ m.com. part i and part ii examination on sept. 9, 1993 after considering the said representation of the said students' union and also after-effect of the recent flood in jalpaiguri and cooch behar district in north bengal. later on, a modification was made to the effect that the said examination would commence on sept. 10, 1993.8. mr. advocate-general has also submitted that the said post graduate examination of 1992 was already one year behind the schedule and after making one postponement from august 26, 1993 to sept. 10, 1993, the university did not think it fit to make any further postponement. moreover, university did not want to affect the new academic session of m.a./m.sc./m.com. part i of 1992-93 fixed on october?, 1993 as decided in the said meeting held by the faculty council on july 31, 1993.9. regarding postponement of other examinations, under graduate examinations and ll. b. examinations, all for 1993, the submission of the learned advocate-general is that those examinations are to be held in different parts of north bengal including some flood affected area and those examinations are of the current year, the university authorities decided to hold the same in nov. 1993 after the puja holidays. he submits that the said post graduate examination of 1992 is to be held in university campus not at all affected by the recent flood and most of the examinees of the said examination live in the hostel in the same university campus. therefore, according to the learned advocate-general, this decision as to postponement of said under graduate examinations on a different consideration cannot be cited as a ground for postponement of the instant post graduate examinations,10. lastly, mr. advocate-general has argued on a point of law that a decision as to holding an examination and the time table of such examination is essentially and eminently a matter for the university alone, and the court by interfering with the said decision cannot dislocate the time schedule as fixed by the university merely for the convenience of a few examinees, the writ petitioners about 21 in number. mr. advocate-general has referred to several decisions of supreme court, : (1980)iillj175sc , : [1986]2scr912 , : air1987sc190 and a few other decision.11. mr. debashis kundu, learned advocate for the respondents has argued that it is common knowledge that several parts of north bengal had been severely inundated by devastating flood, and the university in consideration of the same had postponed the other examinations except the said post graduate examinations which the university is determined to hold in september instead of november, 1993. mr. kundu submits that in consideration of this peculiar fact, in the instant case, that is, the devastating flood affecting both morale and also the prepa-ration of a number of examinees including the writ petitioners most of whom, hail from aliporeduar, a badly affected area, it warrants a further postponement of said post graduate examination by about two months. mr. kundu submits that the learned trial judge was right in directing re-scheduling of the examination after giving two months' notice by taking a judicial notice of devastating flood in several parts of north bengal. mr. kundu submits that this order of the trial court ought not to be interfered with by the appeal court. he also submits that this present proceeding should be treated as public interest litigation, and court should grant relief in the interest of the student community. mr. kundu refers to several decisions of the supreme court on public interest litigation, : [1989]1scr176 , : [1986]1scr251 , : (1982)iillj454sc .12. as stated above, the only ground on which the writ petitioners prayed for postponement of the said post graduate examination 1992 is that the writ petitioners were severely affected by the recent flood. it appears that university students by its written represenation dated july 26 1993 asked for postponement of the said post graduate examination, 1992 for 15 days on the self same ground and in due consideration thereof, the university authorities postponed the said examination which was already one year behind the schedule. it appears to us that a further postponement of the said post graduate examination would also affect or cause delay in starting a new session for post graduate part i students. this postponement of the said post graduate examination, 1992 would also defer holding the post graduate examination for 1993. these are the factors which the university only can take into consideration before taking a decision as to timing of the examination. the court should be reluctant to step in to direct the university as to when and how a time table for the examination is to be fixed. in deciding this broad question, the interest of the studentcommunity at large should have precedence over the interest of a few, even the sameappears to be genuine.13. it is not for the court to measure the gravity and intensity of flood and the extent of the sufferings of the students by such flood. in the instant case, the university has already postponed the said post graduate examination, already late by one year, from august 26, 1993 to september, 1993 in consideration of the students representation asking for postponement of the said examination by 15 days on account of suffering of the student by such flood. therefore, in our opinion this decision of the university cannot be said to be arbitrary or without any reason.14. we are also of view that postpone-merit of an examination cannot be claimed as of right. it has been alleged by the writ petitioners that they have been discriminated against as in the case of undergraduate examinees, postponement is by over two months, whereas in case of examinees for the said post graduate examination, 1992, the postponement is by little over a fortnight. this, according to the writ petitioners, amounts to discrimination. we do not accept this submission on behalf of the respondent writ petitioners. as has been submitted by the learned advocate-general, in our view rightly, the post graduate examinees are hot similarly situated. the post graduate examinations are held in the university campus and most of the examinees live in the hostel in the university campus whereas under-graduate examinations are held in various centres in different affiliated college, some of which have been badly affected by the recent flood. moreover, the said post graduate examination is already late by one year, and the under graduate examinations arc for the session 1993. this prompted the university to postpone the under graduate examination of 1993 for a longer period.15. in the case of j.p. kulashreshtha v. allahabad university, : (1980)iillj175sc , supreme court observedthat while there was no absolute ban, it was a rule of prudence that court should hesitate to dislodge the decision of academic bodies. if the chancellor or any other authorities decided an academic matters, the court should keep its hands off, but where a provision of law had to be read and understood, it should not-be fair to keep the court out.16. in rajesh kumar mehta v. karnataka university, : [1986]2scr912 , it is held by supreme court that on academic question the court should not disturb the decision of the university unless it is shown that such decision is arbitrary or not based on reason. here the question as whether the karnataka university should recognise the higher secondary examination held by the secondary education board of other universities. the university did not consider the higher secondary examination as equivalent to the pre-university examination of pre-university education board of bangalore, supreme court observed that it was for each university to decide the question of equivalence and it was not for the court to sit in judgment over such a decision as it was essentially a matter for the university to decide.17. in state of u.p. v. d.k. singh, : air1987sc190 the question was whether post graduate medical course should commence on july, 1986 or january, 1987. it was found by the supreme court that such question would depend on a number of factors and such question should/best be left to the university to decide. it is held that the/court should not dislocate the time schedule merely for the convenience of a few students. when would art academic session commence is eminently a matter for the university to decide and not the court.18. in the instant case, whether the holding of post graduate examination of 1992 should be further postponed on the ground of flood or other grounds is eminently a matter for the university to decide, and not for the court. fixing of the time table for a particular examination is a matter pertaining to academic matter or academic discipline and the university or its faculty council is the only and the best authority to take a decision. such a decision or any other decision of a university pertaining to academic matters or discipline can only be interfered with by the court if the same is arbitrary or not based on any reason or against some statutory provision or law.19. in the facts of the case, we see neither any arbitrariness nor unreasonableness nor infraction of law which could warrant intervention of the court. we find there is justifiable reason for not further postponing the said post graduate examination of 1992, already late by one year. the university took the decision after due consideration of various factors and the court cannot sit on judgment over such decision of the university.20. we feel that the trial court's order has not been made in proper perspective and also not on the basis of proper or relevant material. we also find that trial court did not give any opportunity to the university to explain what prompted the university to postpone the other examination for a longer period. we also do not appreciate the conduct of the writ petitioners to move the court at the very last moment just two days before the commencement of the said examination when they on their own showing know at the latest by 16th august, 1993 that the examination was to be held on september 10, 1993.21. we set aside the order dated september 7, 1993 passed by the learned trial judge. in view of bur setting aside the order of the trial court, no separate order need be made on the stay petition filed by appellant.22. the appeal is allowed.23. there will be no order as to costs.24. the learned counsel for the respondent prays for a stay of operation of the judgment and order. in the facts and circumstances of the case the prayer is refused.25. as a special case and on undertakingto apply for and obtain certified copy of the judgment and order by the learned counsel appearing for the respective parties, let a plain copy of the operative portion of the order countersigned by the assistant registrar (court) be given to the learned counsel for the parties. if the certified copy of the judgmentand order is applied for, the same will be given by the department concerned as expeditiously as possible.samaresh banerjee, j. 26. iagree.27. appeal allowed.

Judgment:
ORDER

Prabir Kumar Majumdar, J.

1. This appeal is from an order dated Sept. 7, 1993 passed by a learned Judge of this court on an application filed by the respondents under Art. 226 of the Constitution for postponement of M.A./M.Sc./M.Com. Part I and Part II (Annual) Examination, 1992 scheduled to be held on Sept. 10, 1993 by the appellant University.

2. The respondents moved the court of first in instance on Sept. 7, 1993 praying, inter alia, for postponement of the said M.A./ M.Sc./M.Com. Part I and Part II (Annual) Examination, 1992 on the ground of devastating flood at Aliporeduar in the District of Jalfaigari and some parts in the District of Cooch Bahar in North Bengal. The said application was moved just three days before the said Examination of 1992 which was to commence on Sept. 10, 1993. It is alleged by the appellant that the writ petitioners' Advocate on Record served a notice of such application on Sept. 6, 1993 at 4.30 p.m. on the learned Advocate for the appellant Mr. Dipak Kumar Bannerjee.

3. It is stated in the writ petition that the said M.A. Examination of 1992 was originally scheduled to be held on August 26, 1993. In view of devastating flood in some parts of North Bengal, the writ petitioners made representation sometime in August, 1993 to the Vice-Chancellor of the said University requesting to postpone the said examination by about two months to enable the writ petitioners and other examinees to make adequate preparation for the said examination.

4. It is also the case of the writ petitioners that the University also postponed the other examinations, viz. Undergraduate Examination of 1993 and also Intermediate and Final LL.B. Examination, 1993 till Nov. 1993. It is stated that in view of such postponement of said examinations, the writ petitioners were under the impression that said Post Graduate Examination would also be postponed till Nov. 1993. But on August 16 or 17, 1993 they came to know that a notice dated August 7, 1993 was hung up on the Notice Board announcing the programme of M.A. Part I and Part II (Annual) Examination, 1992 commencing on Sept. 10, 1993 and to continue till October 1, 1993, the writ petitioners challenging the said notice dated August 7, 1993 praying for postponement of the said Examination by about two months.

5. The learned trial Judge disposed of the said writ petition by the order under appeal dated Sept. 7, 1993 observing that it was well known that due to flood in North Bengal abnormal situation was prevailing there and the University should take a practical view ofthe matter. It was stated that several examinations were re-scheduled by the University. In that view of the matter the Vice-Chancellor and Controller of Examinations of the University of North Bengal were directed to re-schedule all the Post Graduate Examinations Part I and Part II for the Session, 1992 after giving two months' notice. A plain copy of the said order was issued to the parties for communication and compliance.

6. This appeal together with the stay application has been assigned to this Bench by the Hon'ble Chief Justice.

7. The Advocate-General appearing on behalf of the appellant University has argued that the University authorities have fixed the said time schedule after consideration of all aspects of the case as also the said flood situation in the area. It is the submission of the learned Advocate-General that by a representation in writing dated 26th July, 1993, the North Bengal Students' Union made a request for postponement of the said Post Graduate Examination, 1992 fixed for 26th August, 1993 by a further period of 15 days. The Faculty Council in a meeting held on July 31, 1993 decided to start M.A./M.Sc./ M.Com. Part I and Part II Examination on Sept. 9, 1993 after considering the said representation of the said Students' Union and also after-effect of the recent flood in Jalpaiguri and Cooch Behar district in North Bengal. Later on, a modification was made to the effect that the said examination would commence on Sept. 10, 1993.

8. Mr. Advocate-General has also submitted that the said Post Graduate Examination of 1992 was already one year behind the schedule and after making one postponement from August 26, 1993 to Sept. 10, 1993, the University did not think it fit to make any further postponement. Moreover, University did not want to affect the new academic session of M.A./M.Sc./M.Com. Part I of 1992-93 fixed on October?, 1993 as decided in the said meeting held by the Faculty Council on July 31, 1993.

9. Regarding postponement of other examinations, Under Graduate Examinations and LL. B. Examinations, all for 1993, the submission of the learned Advocate-General is that those examinations are to be held in different parts of North Bengal including some flood affected area and those examinations are of the current year, the University authorities decided to hold the same in Nov. 1993 after the Puja holidays. He submits that the said Post Graduate Examination of 1992 is to be held in University campus not at all affected by the recent flood and most of the examinees of the said Examination live in the Hostel in the same University Campus. Therefore, according to the learned Advocate-General, this decision as to postponement of said Under Graduate Examinations on a different consideration cannot be cited as a ground for postponement of the instant Post Graduate Examinations,

10. Lastly, Mr. Advocate-General has argued on a point of law that a decision as to holding an examination and the time table of such examination is essentially and eminently a matter for the University alone, and the court by interfering with the said decision cannot dislocate the time schedule as fixed by the University merely for the convenience of a few examinees, the writ petitioners about 21 in number. Mr. Advocate-General has referred to several decisions of Supreme Court, : (1980)IILLJ175SC , : [1986]2SCR912 , : AIR1987SC190 and a few other decision.

11. Mr. Debashis Kundu, learned Advocate for the respondents has argued that it is common knowledge that several parts of North Bengal had been severely inundated by devastating flood, and the University in consideration of the same had postponed the other examinations except the said Post Graduate Examinations which the University is determined to hold in September instead of November, 1993. Mr. Kundu submits that in consideration of this peculiar fact, in the instant case, that is, the devastating flood affecting both morale and also the prepa-ration of a number of examinees including the writ petitioners most of whom, hail from Aliporeduar, a badly affected area, it warrants a further postponement of said Post Graduate Examination by about two months. Mr. Kundu submits that the learned trial Judge was right in directing re-scheduling of the examination after giving two months' notice by taking a judicial notice of devastating flood in several parts of North Bengal. Mr. Kundu submits that this order of the trial Court ought not to be interfered with by the Appeal Court. He also submits that this present proceeding should be treated as public interest litigation, and court should grant relief in the interest of the student community. Mr. Kundu refers to several decisions of the Supreme Court on Public interest litigation, : [1989]1SCR176 , : [1986]1SCR251 , : (1982)IILLJ454SC .

12. As stated above, the only ground on which the writ petitioners prayed for postponement of the said Post Graduate Examination 1992 is that the writ petitioners were severely affected by the recent flood. It appears that University Students by its written represenation dated July 26 1993 asked for postponement of the said Post Graduate Examination, 1992 for 15 days on the self same ground and in due consideration thereof, the University authorities postponed the said examination which was already one year behind the schedule. It appears to us that a further postponement of the said Post Graduate Examination would also affect or cause delay in starting a new session for Post Graduate Part I students. This postponement of the said Post Graduate Examination, 1992 would also defer holding the Post Graduate Examination for 1993. These are the factors which the University only can take into consideration before taking a decision as to timing of the Examination. The Court should be reluctant to step in to direct the University as to when and how a time table for the examination is to be fixed. In deciding this broad question, the interest of the studentcommunity at large should have precedence over the interest of a few, even the sameappears to be genuine.

13. It is not for the court to measure the gravity and intensity of flood and the extent of the sufferings of the students by such flood. In the instant case, the University has already postponed the said Post Graduate Examination, already late by one year, from August 26, 1993 to September, 1993 in consideration of the students representation asking for postponement of the said examination by 15 days on account of suffering of the student by such flood. Therefore, in our opinion this decision of the University cannot be said to be arbitrary or without any reason.

14. We are also of view that postpone-merit of an examination cannot be claimed as of right. It has been alleged by the writ petitioners that they have been discriminated against as in the case of Undergraduate examinees, postponement is by over two months, whereas in case of examinees for the said Post Graduate Examination, 1992, the postponement is by little over a fortnight. This, according to the writ petitioners, amounts to discrimination. We do not accept this submission on behalf of the respondent writ petitioners. As has been submitted by the learned Advocate-General, in our view rightly, the Post Graduate examinees are hot similarly situated. The Post Graduate examinations are held in the University Campus and most of the examinees live in the Hostel in the University Campus whereas Under-Graduate Examinations are held in various centres in different affiliated College, some of which have been badly affected by the recent flood. Moreover, the said Post Graduate Examination is already late by one year, and the Under Graduate Examinations arc for the session 1993. This prompted the University to postpone the under graduate examination of 1993 for a longer period.

15. In the case of J.P. Kulashreshtha v. Allahabad University, : (1980)IILLJ175SC , Supreme Court observedthat while there was no absolute ban, it was a rule of prudence that court should hesitate to dislodge the decision of academic bodies. If the Chancellor or any other authorities decided an academic matters, the court should keep its hands off, but where a provision of law had to be read and understood, it should not-be fair to keep the court out.

16. In Rajesh Kumar Mehta v. Karnataka University, : [1986]2SCR912 , it is held by Supreme Court that on academic question the court should not disturb the decision of the University unless it is shown that such decision is arbitrary or not based on reason. Here the question as whether the Karnataka University should recognise the Higher Secondary Examination held by the Secondary Education Board of other Universities. The University did not consider the Higher Secondary Examination as equivalent to the Pre-University Examination of Pre-University Education Board of Bangalore, Supreme Court observed that it was for each University to decide the question of equivalence and it was not for the court to sit in judgment over such a decision as it was essentially a matter for the University to decide.

17. In State of U.P. v. D.K. Singh, : AIR1987SC190 the question was whether Post Graduate Medical Course should commence on July, 1986 or January, 1987. It was found by the Supreme Court that such question would depend on a number of factors and such question should/best be left to the University to decide. It is held that the/court should not dislocate the time schedule merely for the convenience of a few students. When would art academic session commence is eminently a matter for the University to decide and not the court.

18. In the instant case, whether the holding of Post Graduate Examination of 1992 should be further postponed on the ground of flood or other grounds is eminently a matter for the University to decide, and not for the court. Fixing of the time table for a particular examination is a matter pertaining to academic matter or academic discipline and the University or its Faculty Council is the only and the best authority to take a decision. Such a decision or any other decision of a University pertaining to academic matters or discipline can only be interfered with by the court if the same is arbitrary or not based on any reason or against some statutory provision or law.

19. In the facts of the case, we see neither any arbitrariness nor unreasonableness nor infraction of law which could warrant intervention of the court. We find there is justifiable reason for not further postponing the said Post Graduate Examination of 1992, already late by one year. The University took the decision after due consideration of various factors and the court cannot sit on judgment over such decision of the University.

20. We feel that the trial Court's order has not been made in proper perspective and also not on the basis of proper or relevant material. We also find that trial court did not give any opportunity to the University to explain what prompted the University to postpone the other examination for a longer period. We also do not appreciate the conduct of the writ petitioners to move the court at the very last moment just two days before the commencement of the said examination when they on their own showing know at the latest by 16th August, 1993 that the examination was to be held on September 10, 1993.

21. We set aside the order dated September 7, 1993 passed by the learned trial Judge. In view of bur setting aside the order of the trial Court, no separate order need be made on the stay petition filed by appellant.

22. The appeal is allowed.

23. There will be no order as to costs.

24. The learned Counsel for the respondent prays for a stay of operation of the judgment and order. In the facts and circumstances of the case the prayer is refused.

25. As a special case and on undertakingto apply for and obtain certified copy of the judgment and order by the learned counsel appearing for the respective parties, let a plain copy of the operative portion of the order countersigned by the Assistant Registrar (Court) be given to the learned counsel for the parties. If the certified copy of the judgmentand order is applied for, the same will be given by the department concerned as expeditiously as possible.

Samaresh Banerjee, J.

26. Iagree.

27. Appeal allowed.