W.P.(C) 5683, 6497, 6012 of 2007 1 of 19

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : ADMISSION MATTER

Reserved on : October 23, 2007 Pronounced on : November 28, 2007

W.P.(C) 5683/2007, W.P.(C) 6497/2007, W.P.(C) 6012/2007

1. W.P.(C) 5683/2007

SUMIT BHATIA & ORS. ..... Petitioners Through Mr. S.K. Rungta, Advocate

versus

GOVT. OF NCT OF DELHI & ORS. ..... Respondents Through Mr. V.K. Tandon, Advocate for respondent No. 2. Mr. Jatan Singh, Advocate for respondent No.3.

2. W.P.(C) 6497/2007

DIVYA CHAURASIA ..... Petitioner Through Mr. S.K. Rungta, Advocate

versus

GOVT. OF NCT OF DELHI & ORS. ..... Respondents Through Mr. V.K. Tandon, Advocate for respondent No. 2. Mr. Jatan Singh, Advocate for respondent No.3.

W.P.(C) 5683, 6497, 6012 of 2007 2 of 19

3. W.P.(C) 6012/2007

AMIT SHARMA & ORS. ..... Petitioners Through Mr. S.K. Rungta, Advocate

versus

GOVT. OF NCT OF DELHI & ORS. ..... Respondents Through Mr. V.K. Tandon, Advocate for respondent No. 2. Mr. Jatan Singh, Advocate for respondent No.3.

Mr. Justice S. Ravindra Bhat

1. The present set of writ petitions concerns the modalities of lateral entry of

students who complete their senior secondary examination with vocational stream

subjects, to the Diploma course. They seek directions for their admission to the course for the current academic year.

2. The relevant facts of the case are briefly mentioned below. The Central

Government, in 1984, notified that students who qualify the senior secondary

school examination in vocational subjects could be admitted to second year of the diploma course in the concerned vocation course, in Polytechnics. Admission was

to be entirely on merit basis and 10% seats in the concerned subject were reserved for such students. These instructions were again reiterated by the All India Council

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of Technical Education (hereafter AICTE) by letter dated 04.03.2002, which

continued the same eligibility criteria for admission to vocational stream subjects to Polytechnics under Govt. of NCT of Delhi, the candidates successful completion

of senior secondary examination in the concerned vocational stream with at least

60% marks in third semester, without any Common Entrance Test.

3. The respondents changed the eligibility criteria for admission through lateral

entry- and completely did away the lateral entry seats in the Prospectus for 2006.

The petitioners and some others filed writ petitions challenging the changed

criteria and denial of their admission to them, against lateral entry seats in the

second year, third semester.

4. This Court, by judgment dated 19.10.2996 (of Mr. Justice Anil Kumar) allowed the said writ petitions and directed the Petitioners admission along with

others forthwith, subject to their fulfilling the eligibility criteria prescribed by the All India Council for Technical Education.

5. As a result of the said judgment, out of total 33 petitioners in the set of petitions, 22 were admitted while 11 including the petitioners were not granted

admission. The petitioners were refused admission on the ground that they had not

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obtained 60% marks in the 10+2 vocational stream subjects, a criteria prescribed by AICTE.

6. The petitioners aver that the Respondents calculated their percentage in the

10+2 examination, by taking into account six subjects, contrary to the Rules of the concerned affiliating Board, i.e. Central Board of Secondary Education (CBSE).

CBSE takes into account best five subjects for working out the percentage and results of candidates, in its examination. They had appeared in six subjects in the 10 +2 vocational stream examination; the percentage of marks obtained by them, if

calculated on the basis of best five subjects are 60% or more. The candidates, who appeared only in five subjects, were granted admission by calculating their percentage against the five subjects and those who could not secure 60% marks against the five subjects were not granted admission. In fact, the requirement of passing CBSE Senior Secondary Examination for the vocational stream is of five

subjects and not of six subjects. It is alleged that candidates have options to appear in an additional subject and that it is inconsequential in deciding the eligibility of the candidate for admission to any future course.

7. CBSE Examination Bye-Laws contains rules in respect of the scheme of

examinations, and grading of students and declaration of their results. Rule

W.P.(C) 5683, 6497, 6012 of 2007 5 of 19

40.1(ii) stipulates that a candidate has to obtain E grade i.e. 33% marks for being

declared pass in five subjects. The said Rule is reproduced below:

In order to be declared as having passed the examination, a candidate shall obtain a grade higher than E (i.e. atleast 33% marks) in all the five subjects of external examination in the main or at the compartmental examinations. The pass marks in each subject of external examination shall be 33%. In case of a subject involving practical work a candidate must obtain 33% marks in practical separately in addition to 33% marks in aggregate in order to qualify in that subject.

8. Rule 43 permits any candidate to opt for an additional subject. What is clear from a reading of the said provision along with Rule 40, is that, to determine the

result of Senior Secondary examination of a candidate, performance in five

subjects are relevant and appearing in an additional subject has no bearing on performance, for any purpose. The said Rule is reproduced below :-

Additional Subjects (s) : A candidate who has passed the Secondary Senior School Certificate Examination of the Board may offer an additional subject is provided in the scheme of studies and is offered within six years of passing the examination of the Board. No exemption from time limit will be given after six years. Facility to appear in additional subject will be available at the annual examination only.

9. The Respondents submit that lateral entry was permitted to vocational

students according to the current scheme of the A.I.C.T.E, by considering an

aggregate of 60% marks in all subjects as the eligibility criteria and not the criteria of just passing the vocational course subjects. The A.I.C.T.E has prescribed the

W.P.(C) 5683, 6497, 6012 of 2007 6 of 19

criteria of 60% marks and not passing marks as entry into second year of the

diploma course. Therefore, a strong academic background is necessary to cope

with the second year course workload. They point out that the petitioners failed in

mathematics and secured very low marks and as such do not possess 60%

aggregate. They were, therefore, in eligible for admission. They also contend that

the marks sheets of the petitioners do not indicate any optional subject. It is alleged that different petitioners want different subjects to be considered as optional subjects, where as the vocational stream includes two compulsory subjects, i.e Language I and Language II or mathematics.

10. It is averred by Respondents that the A.I.C.T.Es letter enclosed, as

Annexure C to the petition clearly points to an entrance test, while the petitioner

states that no entrance test is required. In the ITI there is no system of having a

student pass the examination on the basis of his/her passing an optional subject in lieu of a compulsory subject. The ITI students have to pass in all the subjects and all the subjects are accounted for calculating aggregate marks. The eligibility criteria for ITI students and vocational stream students cannot be different, as

students from both these streams are to be considered for lateral entry, provided

they secure 60% marks in aggregate. The vocational stream students cannot be

allowed to have an upper hand over the ITI students in this respect and they are all

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treated on equal footing.

11. The respondents also allege that according to the Delhi Diploma Level

Technical Education Institutions (Prohibition of Capitation Fee Regulation of

Admission Fixation of Non Exploitative Fee and Other Measures to Ensure Equity

and Excellence) Act, 2007 (Delhi Act 7 of 2007), admission to seats other than

those allotted as management quota is to be on the basis of an entrance test. Since

the admission to the Government and Private polytechnics is based on merit, it is

not possible to have a different system of admission other than an entrance test.

12. Mr. S.K. Rungta, learned counsel, relied upon Rules 40 and 43 of the CBSE

rules and contended that the marks sheet issued by the said Board clearly show that

the best five subjects are to be taken into consideration, for declaring the result. It was contended that the respondents, having failed in the previous proceedings,

resorted to the stratagem of introducing an irrelevancy. The petitioners were

entitled to be admitted though lateral entry to the second year in the diploma

course, provided they secured 60% in the best five subjects. In the previous proceeding the inclusion of the sixth subject as an essential standard was never pleaded as a defence by the respondents.

W.P.(C) 5683, 6497, 6012 of 2007 8 of 19

13. It was urged by the respondents, that the petitioners cannot be considered for

admission on the basis of 60% marks in best five subjects according to the practice of the CBSE. The CBSE criteria, for considering best five subjects for declaring the students passed does not indicate any aggregate marks in their mark sheet.

The A.I.C.T.E. criterion, which is relevant in this context require 60% marks in

aggregate. Ms. Ahlawat, learned counsel, also submitted that the AICTE had left

the discretion of determining what should be the subject combination, for admission of students in the 10% supernumerary quota and whether all subjects, or only five subjects, offered in the 10+ 2 level should be considered. It was contended that there was nothing wrong in fixing the standard and insisting that all

subjects attempted by a student, including additional subjects, should be included for reckoning 60% eligibility.

14. The prospectus governing admissions, to the Polytechnics, for the current

year, lists several courses. Of these, 16 courses are listed as analogous, in 16

institutions, with intake of 266, against the 10% supernumerary seats for lateral

entry into the second year, third semester. The relative eligibility conditions,

applicable for these courses, is mentioned against the caption

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Test-5; it reads as follows:

Test

5

For admission of 10+2 Vocational Engg. Stream pass outs against 10% supernumerary seats in analogous disciplines of Architectural Assistantship, Automobile Engineering, Civil Engineering, Civil Engineering (Specialization in Construction Engg.). Computer Engineering, Electrical Engineering, Electronics & communication Engineering, Electronics Engineering (Digital Electronics), Electronics Engineering (Medical Electronics), Mechanical Engineering, Mechanical Engineering (Maintenance), Plastic Technology, production Engineering, Printing Technology and Public Heath & Environmental Engineering.

For 10+2 Vocational (Engg. Courses): passed in 12th class examination of analogous 10+2 Vocational Stream from Delhi Schools with minimum 60.00% marks in aggregate of all subjects reflected in the mark sheet and securing minimum 33.00% marks in each subject without considering grace marks.

For ITI pass outs (Engg. Courses): Passed NCVT/SCVT from it is/ITCs located in Delhi and affiliated to DGE &T/ BTE, Delhi with minimum 60.00% marks in aggregate of all subjects reflected in the mark sheet and securing minimum 33.00% pass marks in Social Study, 40.00% pass parks in other theory subjects and minimum 60.00 pass marks in each practical subject without considering grace marks. For ITI Pass outs, Engg. Trades of one/two year duration, for which entry qualification is 10th pass, shall be considered.

15. The Note to clause 5.1, dealing with eligibility conditions, appearing after

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the table indicating the relative qualifications necessary for admissions, reads as

follows:

1. NCVT/SCVT certificate holders in the trades of Painter, Wireman, Sheet Metal, Welder, Foundry man (Moulder), Carpenter, Tractor Mechanic and Plumber (for which minimum entry level qualification is 8th passed) are not eligible for admission against 10% supernumerary seats.

2. Candidates have appeared for their qualifying examination in 2007 and are awaiting results are also eligible to apply but their admission will be subject to the production of proof of having acquired minimum prescribed qualification at the time of admission/counseling.

3. Only candidates, who have passed the qualifying examination including the subjects of the CET, i.e. Science, Mathematics and English of class 10th for Test 1; English/Hindi/ Sanskrit at 10+2 of any stream of 10+2 CBSE for Diploma in Modern Office practice for Test 2 &3; Physics, Chemistry and Mathematics/ Biology and English of 10+2 of CBSE (or other qualifications recognized by PCI) for admission to Diploma in Pharmacy for Test 4 will be considered for admission in the first year of the Full Time Diploma Courses and 10+2 Vocational (Engg. Courses) passed in 12th class examination of Analogous 10+2 Vocational stream from Delhi Schools and ITI (NCVT/SCVT) pass outs (Engg. Courses) from ITI/ITC located in Delhi for Test 5 will be considered for admission in the second year/third semester of analogous Full Time Diploma Courses. Candidates passed with grace marks shall not be considered for admission

16. On 17-7-2007, the Department of Training and Technical Education wrote to

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the AICTE seeking clarification the modalities for calculating 60% the eligibility

condition, for admission. The letter reads as follows:

GOVERNMENT OF DELHI DEPARTMENT OF TRAINING & TECHNICAL EDUCATION MUNI MAYA RAM MARG : PITAMPURA: DELHI 110 088

No. F/Court Case/DDTE/2007/518 Dated 17.07.2007

To,

The Member Secretary All India Council for Technical Education, Indira Gandhi Sports Complex, IP Estate, New Delhi 110 002

Subject : Clarification on AICTE guidelines of 17.12.2003 on the clause of minimum 60% marks in the ITI/10+2 vocational examination as the eligibility for lateral entry in Diploma Courses.

Sir,

This has reference to the AICTE guideline dated 17.12.2003 on vertical mobility of ITI/10+2 vocational pass outs. While complying with the High Court order to follow AICTE guidelines, it was observed that depending on the vocational stream, the mark sheet of vocational students had marks awarded in 6 subjects (in case of students from Air conditioning & Refrigeration, Electrical technology and Auto technology) or in 5 subjects (in case of Electronics Technology). In absence of any specific guideline from the AICTE on computation of marks, the admission Committee had taken into consideration of marks obtained in all subjects as reflected in the mark sheet to work out the aggregate percentage of marks and admitted only those candidates who had 60% marks and above in the aggregate.

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Some of the candidates who could not get admission as they did not have minimum 60% marks in aggregate have represented stating that CBSE considers best of five subjects and they should be given admission on the basis of marks obtained in five subjects instead of six subjects.

CBSE mark sheet does not indicate any total marks and the students are declared passed even if they fail in one subject.

You are requested to clarify the modality of calculating 60% marks. In case we have to take best subjects, kindly indicate which subjects are to be considered for computation, as besides their elective subjects in the trades concerned, the mark sheet shows the subjects of English, Mathematics, Engineering Drawing and applied Physics. Marks obtained in Physical Education and General Foundation course are indicated in grade except in one case. The chart in this regard is attached herewith also the copy of the mark sheet for different vocational subjects.

This may kindly be communicated immediately as the next date of hearing is 20.07.2007.

Yours faithfully, Sd/-

Dr. Bani Barai, Deputy Director.

17. The AICTE replied to the letter, on 25th July, 2007, in the

following terms:

ALL INDIA COUNCIL FOR TECHNICAL EDUCATION Dated 25.07.2007

To, Dr. Bani Baral

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Deputy Director (TE) Government of Delhi Department of Training & Technical Education Muni Maya Ram Marg, Pitampura, Delhi 110 088

Sub : Clarification on AICTE guidelines of 17.12.2003 on minimum percentage of marks in the ITI /10+2

Madam,

Please refer to your letter No.F.4-4/2007-TS(VI) dated 24th July, 2007 seeking clarification on the guidelines dated 17th December 2003 issued by AICTE on admission of 10+2 vocational and ITI students to diploma courses though Lateral Entry.

In this regard I am directed to state that at present concerned state Govts. have been designated as Admission Authorities for the purpose of admitting students to diploma and degree level technical education programmes in their respective states. AICTE being the apex body prescribes only broad criteria to be adopted for admission to be made to technical institutions. It is up to the concerned State Govts. to work out the details and mechanisms while making such admission.

In the present case AICTE has prescribed only a broad criteria of 60% marks at 10+2 vocational or at ITI level to become eligible for admission to diploma level courses. It is up to the state Govt. to decide the subjects to be taken into account for calculating the percentage of marks.

Yours faithfully, Sd/-

(B.L. Rama) Dy. Secretary (Legal).

18. The Committee constituted to give admission through lateral entry, through

a meeting held on 26th July 2007, considered the two letters extracted above and

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left the decision to this Court, on the issue of computation of the 60% aggregate

marks.

19. It is clear from the above facts that the AICTE issued broad guidelines and

gave the respective State Governments the discretion to further notify the

eligibility criteria. Yet, the necessity to have a uniform set of standards cannot be

undermined.

20. Rule 40 of the CBSEs Examination Rules takes into account the candidates

performance in only five subjects, disregarding the optional subject. The CBSE rules do not indicate what courses must be compulsorily offered while pursuing the

Vocational stream, after passing Tenth standard exams. It is true that the AICTE

rules require not mere pass but an aggregate of 60%, but the aggregate must be

calculated by taking the best five of the six subjects indicated in the mark list. If this were not so, candidates taking the optional subjects would be placed at a disadvantage over those who have chosen not to. Moreover, neither the AICTE

(which is responsible for standard setting) nor the CBSE has prescribed

compulsory subjects as eligibility criterion for lateral entry. Therefore, taking into account six subjects would result in differential standards, where the rules do not call for such treatment.

21. The obligation to prescribe standards for higher education, in technical

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subjects, is with the AICTE, in view of the All India Council for Technical Education Act, 1987. To the extent the enactment and its regulations provide for a

regulatory mechanism and prescribe standards, including standards for admission,

the state authorities are denued of their powers to act on the same subject matter. In State of Tamil Nadu and Another Vs. Adhiyaman Educational and research Institute and others, (1995) 4 SCC 104, it was held by the Supreme Court that

standards have to be prescribed at the national level. They have necessarily to be

uniform throughout the country as without this a coordinated and integrated

development of technical education all over the country will be an impossibility.

Differential standards in regards to some issues and uniform standards with regard

to some, in regard to the same subject matter, i.e admission- in this case, to Polytechnics, which will defeat one of the main objects of the statue. The court was of the view that unnecessarily high norms or standards for admission to

education institutions or to pass the examination may not only deprive the vast

majority of the people of the benefit of the educational qualification but would also result in concentrating technical education in the hands of affluent and elite few

and depriving country of a large number of otherwise deserving technical

personnel. If this were to be kept in mind, the AICTEs not insisting that all

subjects should be reckoned for ascertaining the eligibility criteria of 60% itself is a considered policy choice. In such eventuality, the State could not have stepped in

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and made a decision; upholding the states action would result in differing

yardsticks, as in one state, six subjects may be taken into account, whereas in another, the CBSE pattern, of taking into consideration only 5 subjects can well be followed.

22. There is yet another reason why the petitioners claim has to succeed. Note 3

to the eligibility conditions reads as follows:

3. Only candidates, who have passed the qualifying examination including the subjects of the CET, i.e. Science, Mathematics and English of class 10th for Test 1; English/Hindi/ Sanskrit at 10+2 of any stream of 10+2 CBSE for Diploma in Modern Office practice for Test 2 &3; Physics, Chemistry and Mathematics/ Biology and English of 10+2 of CBSE (or other qualifications recognized by PCI) for admission to Diploma in Pharmacy for Test 4 will be considered for admission in the first year of the Full Time Diploma Courses and 10+2 Vocational (Engg. Courses) passed in 12th class examination of Analogous 10+2 Vocational stream from Delhi Schools and ITI (NCVT/SCVT) pass outs (Engg. Courses) from ITI/ITC located in Delhi for Test 5 will be considered for admission in the second year/third semester of analogous Full Time Diploma Courses. Candidates passed with grace marks shall not be considered for admission

A careful reading of the above condition would reveal that the respondents have

spelt out clearly wherever specific subjects are deemed essential. The only mention of analogous courses in relation to Test -5 concerns passing of candidates with

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grace marks; they are not entitled to admission. If the state authorities were of the

opinion that some subjects were essential, they would have mentioned them, in this note, or in some other place. In the absence of such stipulation, there can be no

automatic, incorporation, by default, as it were of such subjects as being essential or mandatory. So, from the standpoint of minimum standards, the respondents

contention that all subjects offered have to be given credit, regardless of their being additional or optional subjects, in the CBSE level, is meritless.

23. In view of the above discussion, Petitioners in WP No: 5683/2007 and WP

No: 6012/2007 are entitled to succeed. Their petitions are accordingly allowed; a

direction is issued to the Respondents to complete admission for the said

Petitioners in WP No: 5683/2007 and WP No: 6012/2007 by calculating the

aggregate of 60% by taking into account the best five subjects out of six. The respondents shall comply with these directions, within a week, and file a

compliance affidavit, in ten days.

24. WP No: 6497/2007 raises an additional issue. The petitioner in this case has

been denied admission not only on the basis of computation of 60% aggregate

marks, by taking into account all six subjects but also on the ground that she passed the qualifying exam by appearing compartment exams. Rule 40 of the

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CBSE Examination Rules is clear in this regard. The candidate will be considered

as passed if he obtains a minimum of 33% in each of the subjects in the main or the compartmental exams. In the absence of any clear direction from the AICTE in

relation to compartment exams, I think the AICTE directions on lateral entry of

vocational stream students must be read with relevant CBSE rules. Here again, the

mention of grace marks being a restrictive criteria narrows the ground for denying

admission. In case students who qualify in compartmental examinations were to be

excluded, the policy makers would have been more explicit and clearer in

expressing such intention. Therefore, the fact that candidates have passed the

vocational stream exams through compartment exams should not act as a

disqualification while calculating the 60% aggregate marks. WP No: 6497/2007

too is therefore allowed; a direction is issued to the Respondents to complete

admission of the said Petitioner, by taking the results of the best five subjects into consideration. In his case too, compliance shall be made with the terms of this

judgment, within a week, and a compliance affidavit filed, within ten days. 25. The writ petitions and pending applications are allowed in the above terms.

However, there shall be no order as to costs. Order Dasti, under signatures of court

master.

Sd/-

( S. RAVINDRA BHAT )

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JUDGE