2015 Supreme(Bom) 1050

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA & V.L. ACHLIYA, JJ.
Preeti Mulji Sondarwa – Petitioner
Versus
Controller of Examinations, University of Mumbai – Respondent
Writ Petition Nos. 3776, 3778 of 2015 & Writ Petition (Lodging) Nos. 1536, 1537, 1541, 1554, 1600 of 2015
Decided On : 10.7.2015

Headnote:Constitution of India - Article 226 Judicial review. - There judicial review of academical and/or expert’s body’s decision can be permissible when it goes taking adverse decision and/or passing any order affecting the legal rights of the parties. Normally, there is no question of interfering with the academician and/or experts body decision. The judicial review in such matters are quite limited, but if it goes to the civil rights and/or taking away the rights and/or passing such order of debarring of students/learners even for the one semester, which according to the petitioners, was unjust, impermissible, contrary to the law, apart from the basic principle of natural justice, the Court cannot overlook it.

       Constitution of India - Article 226 Opportunity of hearing Necessity of. - Held that procedure of declaring below 50% first and even not asking the explanation and/or by not giving any opportunity to learners and students would cause great injustice and hardship and it would also be breach of principle of ’natural justice’ "equity and fair play". Power to condone additional upto 25%, in a given facts and circumstances could have been used and utilized by leaving the balance percentage if any, to achieve overall 75% for the Appellate Authority to decide which, unable the learners/students to appear in the examination. But, as noted with pre-judged mind that they have not given opportunity and/or to follow the principle of natural justice to those, whose attendance is below 50%, has caused injustice and hardship, apart from it is in breach of principle of natural justice and/or wrong interpretation of the Ordinance itself. The Attendance Committee and/or College after giving hearing to the Petitioners could have passed the reasoned order declaring and/or not to declaring such students/learners as defaulters. In the present case, they have not done this and declare the candidates as defaulters unilaterally. The Appellate Authority also in the matters, where some Appeals were preferred, without following the basic principle of natural justice, by common order confirmed the said action and thereby debarred the Petitioners from appearing in the examination.

       Considering the scheme and purpose, the Appellate Authority’s power is wide. They are not Appellate Court and/or Authority as contemplated under the civil jurisprudence. If the case is made out, in our view, having power and/or authority to condone the percentage, it may grant further additional percentage to able such students to appear in the examination.

       In the present case, the Appellate Authority has also mechanically affirmed the College/Institute’s unreasoned order/action and without assigning sufficient and separate reasons against the individual learners and maintained the orders/actions.

       Constitution of India - Article 226 Relief Grant of. - In the present case, students learners were permitted to appear in further classes and the examination for next semester also and respondents were also directed to declare the results as they appeared in the examination pursuant to orders passed by this Court. There would be great injustice and hardship to re-open the issue and to re-start all the procedure by and before the same authority and or to bring evidence again for want of unclear or undeclared position or circular and/or guidelines revolving around the principle of natural justice, at all stages. This will definitely further affect the requirement and/or concentration of future studies and specifically in alternate situational background. The background is pre-judged and fixed and so also the minds of parties/authorities. The result of failure to follow elements of natural justice at appropriate steps/stages by both the authorities, in the present case has attracted the consequences of declaring such action/order illegal and impermissible action, therefore, liable to be quashed and set aside. Court is not inclined to direct the Authority to reconsider the matter again and/or record fresh reasons in view of the background and the reasons so recorded.