SHEETAL vs UNION OF INDIA & ORS.

2023-11-07 Information

$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON’BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ W.P.(C) 11293/2023 & CM APPL. 43916/2023

Between: –

SHEETAL, AGED 18 YEARS,
D/O SHRI. RAM AVTAR,
R/O H. NO. 133-B,
BASANT GAON,
NEW DELHI-110057 ….. PETITIONER

(Through: Mr. Mohit Paul and Ms. Rangoli Seth, Advocates.)

AND

UNION OF INDIA
THROUGH MINISTRY OF EDUCATION,
109-C, SHASTRI BHAWAN,
NEW DELHI 110001. …..RESPONDENT NO.1

NATIONAL COUNCIL FOR TEACHER EDUCATION,
THROUGH ITS AUTHORISED REPRESENTATIVE,
G-7, SECTOR 10, DWARKA,
NEAR METRO STATION, NEW DELHI-110075. …..RESPONDENT NO.2

NATIONAL TEST AGENCY
THROUGH ITS AUTHORISED REPRESENTATIVE,
FIRST FLOOR, NSIC-MDBP BUILDING,
OKHLA INDUSTRIAL ESTATE,
NEW DELHI, DELHI 110020. …..RESPONDENT NO.3

(Through: Mr.Subhash Tanwar, CGSC with Mr.Sandeep Mishra and Mr.Ashish Choudhary, Advocates for R-1.
Mr.Rahul Madan, Standing Counsel for R-2.
Mr.Sanjay Khanna, Ms.Pragya Bhushan, Mr.Karandeep Singh and Mr.Tarandeep Singh, Advocates for R-3.)

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% Pronounced on: 07.11.2023
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J U D G M E N T
1. The present petition has been filed under Article 226 of the Constitution of India, seeking for the following reliefs:
(i) issue appropriate writ, order or direction for a thorough inquiry into the affairs of NCET 2023; and
(ii) direct re-examination of NCET 2023 for applicant(s) like that of Petitioner herein, with sufficient notice; and
(iii) permit the Petitioner herein to undertake the National Common Entrance Exam, 2023;
(iv) issue any writ or any order or any direction as it deems fit to this Honble Court;
(v) Pass any other or such further order(s) as this Hon’ble Court may deem fit and proper in the circumstances of the present case.

2. The brief facts of the case are that the petitioner cleared her Class 12th examination from Sarvodaya Vidyalaya No.3, R.K. Puram, Delhi on 12.05.2023, after obtaining 71.5% marks. Being desirous of pursuing B.A. B.Ed. course, she decided to undertake the National Common Entrance Test (hereinafter NCET), which is conducted by respondent no.3/National Testing Agency (hereinafter NTA).
3. The NTA issued a public notice on 26.06.2023, inviting online applications for NCET, 2023 for admission to the 4-year Integrated Teacher Education Programme (hereinafter ITEP) in selected Central/State Universities/Institutions for the Academic Session 2023-2024. The public notice also contained the schedule of the examination, wherein, the date of the examination was stated to be announced later.
4. The petitioner filled her application form on 14.07.2023. According to the information available on the website of the NTA, there were approximately 16,000 applicants and accordingly, the NTA issued a public notice dated 03.08.2023, providing the Advance Intimation Slip for Examination City with the instructions for downloading the Admit Cards as and when they will be made available as well as specifying the date of the examination as 09.08.2023.
5. The Admit Cards were made available for downloading on 05.08.2023. The petitioner received an email intimation from the NTA on 08.08.2023, for downloading the Admit Card for NCET, 2023, which was to be conducted on the next day i.e. 09.08.2023, which the petitioner was unable to attend.
6. Learned counsel for the petitioner submits that due to the belated receipt of the email intimation from the NTA, on the eve of the examination, the petitioner could not appear for the said examination.
7. Learned counsel submits that the petitioner hails from a family belonging to a lower economic stratum, with limited access to the internet. In light of the same, it is submitted that the respondents have failed to consider the digital inequality that is prevalent across the country and their propensity to display all information on the web portal fails to acknowledge the lack of access to the internet that a lot of candidates suffer from. He submits that the petitioner was unable to appear for the examination for the reason that the information regarding the downloading of Admit Cards was only available on the internet, which the petitioner, owing to her socio-economic condition, could only access sparingly.
8. It is further submitted that the time period between the public notice announcing the examination dates and the date of the examination is extremely short and is inherently inequitable. It places a burden on the candidates with limited resources, such as the petitioner, to prepare for the examination within a truncated period of time, which hinders the preparation of the candidates and is also, contrary to the NTAs practice in other undergraduate examinations. A clear timeline needs to be provided to the candidates for the examination affording them ample time to adequately prepare for the examination.
9. Learned counsel for the petitioner further submits that as per his information, about 37% of the total applicants were unable to appear for the examination. Therefore, since such a large number of candidates missed out on the examination, despite filling the application form, conducting a re-examination is vital for securing the future of these candidates, who hail from different walks of life. It is submitted that if another examination is conducted expeditiously, a new round of counselling may be conducted, so that these candidates can join the present Academic Session.
10. Learned counsel for the contesting respondent-NTA vehemently opposes the submissions advanced by learned counsel for the petitioner. He submits that the NTA invited online applications for NCET, 2023 vide public notice dated 26.06.2023, while informing that the examination dates would be announced at a later date. The candidates were advised to periodically check the NTA website for the updates related to the examination.
11. It is further submitted that the Information Bulletin, which was published on the web portal of the NTA, provided the relevant instructions regarding the examination, including that the e-Admit Cards have to be downloaded from the NTA website.
12. It is also submitted that since the NTA was conducting the said examination for the first time, a public notice dated 11.07.2023 was issued to ensure that the maximum number of candidates can apply for the examination without any difficulty and hence help centres were opened for queries related to the examination. In furtherance of the same sentiment, the deadline to submit the online application forms was also extended from 19.07.2023 till 25.07.2023.
13. Learned counsel for the NTA further submits that vide the public notice dated 03.08.2023, the date of the examination i.e. 09.08.2023 was informed to all the candidates as the City Intimation Slips were issued and the candidates were advised to download the same using their application number from the stated website.
14. Further, vide public notice dated 05.08.2023, the Admit Cards were released for the NCET 2023. It is submitted that the Admit Cards were only released three days before the date of the examination, as was also stated in the public notice dated 26.06.2023, in order to prevent any malpractice by the candidates. In lieu of the same, the City Intimation Slip was released earlier on 03.08.2023, in order to inform the candidates about their centres for the examination expeditiously so that the necessary arrangements could be made by them. The advisory emails were sent to all the candidates on 08.08.2023 only for the purpose of facilitation. In view of the information available on the website of the NTA, as early as 03.08.2023, it cannot be stated that the petitioner only became aware of the date of the examination upon receipt of the concerned email.
15. Learned counsel also submits that the Information Bulletin of NCET, 2023 clearly states that for candidates who are unable to appear for the said examination, a re-test shall not be held under any circumstances. Therefore, a re-test cannot be held in the present case, once the petitioner accepted the rules and regulations of the examination while registering for the same and thereafter, failed to adhere to them.
16. It is also submitted in the additional affidavit filed by the NTA, pursuant to the directions of this court vide order dated 12.10.2023, that as per the activity logs maintained by the NTA, the petitioner only accessed her City Intimation Slip and Admit Card, for the first time, on 10.08.2023, i.e. a day after the date of the examination. It is therefore, submitted that despite the repeated public notices and advisory sent to all the candidates, the petitioner failed to access her Admit Card, despite, admittedly, being aware of the same, and in such a case, a re-examination cannot be allowed to be conducted.
17. Learned counsel for the NTA has also relied upon a decision passed by this court in the case of Akshita Sabharwal v. The Secretary & Ors.1 to supplement his stand that a re-test is not permissible when the rules have been made uniformly applicable to all the candidates.
18. Learned counsel appearing on behalf of respondent no.2/National Council for Teacher Education (hereinafter NCTE), in the additional affidavit, opposes the submissions made by learned counsel for the petitioner regarding conducting a re-examination, while stating that the results have already been declared by the NTA on 25.08.2023 and the counselling has already commenced in the 42 institutions that were granted recognition for the Academic Session 2023-2024. It is asserted that at this stage, conducting a re-examination /fresh examination/additional examination would only derail the counselling process that is already underway.
19. I have heard learned counsel for the parties and perused the record.
20. The two issues that need to be decided by this court are as follows:
(i) Whether the petitioner was provided with ample notice of the date of the examination?
(ii) Whether a re-examination/additional examination can be directed to be conducted under the facts of the present case?
21. In order to decide the first issue, it is pertinent to examine the information that was made publicly available on the website of the NTA.
22. The relevant portion of the Information Bulletin, as published on the website of the NTA, reads as under:
The Important Information and Dates at a Glance
5. Candidates are advised to keep visiting the NTA/NCTE/ University / Institution / Govt. College website(s) as mentioned above (in which candidate is applying) for the latest updates/public notices / notifications / announcements regarding the NCET 2023 for admission in ITEP for the academic year 2023-24.

23. The information provided in the Information Bulletin regarding the downloading of the Admit Card, reads as under:
Chapter-6 Admit Card
The date of downloading the Admit Card for the exam will be announced on the NTA website (https://ncet.samarth.ac.in/)

24. The schedule provided in the first public notice dated 26.06.2023 reads as under:
Online Submission of Application Form
26 June to 19 July 2023
(Up to 11:30 P.M.)
Last date of successful transaction of fee through Credit/Debit Card/Net-Banking/UPI
19 July 2023
(Up to 11:50 P.M.)

Correction in Particulars
20 July to 21 July 2023 (up to 11:50 P.M.)
Announcement of the City of Examination
To be announced later on the website
Downloading Admit Cards from the NTA website
03 days before the actual date of
the Examination
Date of Examination
To be announced later on the website
Display of Recorded Responses and Answer Keys
To be announced later on the website
Website(s)
www.nta.ac.in,
https://ncet.samarth.ac.in/
Declaration of Result on the NTA website
To be announced later on the website

25. The public notice dated 03.08.2023 reads as under:
The National Testing Agency will be conducting the National Common Entrance Test (NCET) 2023 for admission to 4-Year Integrated Teacher Education Programme (ITEP) in selected Central/State Universities/Institutions including IITs, NITs, RIEs, and
Government Colleges for Academic Session 2023-24 on 09 August 2023 (Wednesday) for approximately 16 thousand candidates.

In view of a large number of Subjects, the unique date sheet to every individual candidate has been created. Accordingly, Advance Intimation Slip for Examination City to all candidates with the date of Examination and City of Examination is being issued today on https://ncet.samarth.ac.in/ The candidates are required to check/download the same using their Application Number and Date of Birth from the website https://ncet.samarth.ac.in/ w.e.f. 03 August 2023 and go through the instructions contained therein.

The Candidates may please note that this is NOT the Admit Card for NCET 2023. This is advance information for the allotment of the city where the Examination Centre will be located, to facilitate the candidates. The Admit Card of NCET 2023 shall be issued later. Every effort has been taken to provide candidates their choice of city. If there is any issue with respect to difficulty in downloading the City Intimation Slip or the Admit Card, the candidate may call NTA at 011-40759000 or send an e-mail at ncet@nta.ac.in.
The candidates are also advised to be in touch with the NTA website(s) www.nta.ac.in and https://ncet.samarth.ac.in/ for the latest updates regarding the exam.
[Emphasis supplied]

26. The public notice dated 05.08.2023 reads as under:
The National Testing Agency has been mandated by the National Council for Teacher Education (NCTE), a Statutory Body of the Government of India under the Department of School Education & Literacy, Ministry of Education (MoE), Government of India for conducting the National Common Entrance Test (NCET) 2023 for admission to 4-Year Integrated Teacher Education Programme (ITEP) in selected Central/State Universities/Institutions including IITs, NITs, RIEs, and Government Colleges for Academic Session 2023-24.
The NCET 2023 is being conducted by NTA in Computer Based Test (CBT) Mode for about 16 thousand candidates at various Examination Centres located in 127 cities across India as per the following schedule:
Examination
Dates of Examination

National Common Entrance Test NCET 2023
09 August 2023
(02:00 to 05:00 P.M.)

City Intimation slips for the said examination were already hosted on the website https://ncet.samarth.ac.in/ on 03 August 2023. Admit Card for the same is releasing today i.e. 05 August 2023. The candidates are required to check/download the same using their Application Number and Password from the website https://ncet.samarth.ac.in/ w.e.f. 05 August 2023 and go through the instructions contained therein.
In case any candidate faces difficulty in downloading the Admit Card for NCET 2023, he/she may contact 011 – 40759000 / 011 – 69227700 or e-mail at ncet@nta.ac.in
The candidates are also advised to be in touch with the NTA website(s) www.nta.ac.in and https://ncet.samarth.ac.in/ for the latest updates regarding the exam.
[Emphasis supplied]

27. A combined reading of the public notices and the relevant clauses of the Information Bulletin, as reproduced hereinabove, would show that the first notice dated 26.06.2023 clearly stated that the Admit Cards will be made available for downloading three days prior to the date of the examination. The public notice dated 03.08.2023, made available information about the allotted city where the candidates were to appear for the examination, as well as specifying the date of the examination, taking into account the large number of candidates that had registered for the examination. It was also repeatedly emphasized in the various public notices, that the candidates should regularly access the relevant websites for any updates about the examination.
28. In accordance with the schedule provided in the notice dated 26.06.2023, the Admit Cards were duly made available for downloading three days before the date of the examination i.e. 05.08.2023.
29. It is thus clear, that the NTA provided clear and repeated instructions regarding the schedule of the examination. The candidates were advised to regularly check the website of the NTA for updates. In addition to the public notices, as an additional facility, advisory emails were sent to the candidates on 08.08.2023, to download their Admit Cards for the examination scheduled for 09.08.2023. Despite such frequent instructions, the petitioner failed to download her Admit Card in time and appear for the examination.
30. The petitioner now cannot take the stand that she was given a delayed intimation of the date of the examination, on 08.08.2023. This court, in the cases of Dr. Renuka Bulani Prasad v. National Board of Examinations In Medical Sciences & Ors.2 and Akshita Sabharwal (supra) had occasion to deal with a similar controversy as involved in the present case and held that the concerned authorities are not duty-bound to provide intimation to each candidate individually. Paragraph nos. 11 and 12 of the decision in the case of Dr. Renuka Bulani Prasad (supra) (affirmed in LPA 226/2023) read as under:
11. The petitioner had a duty to follow the instructions easily available to all the candidates on the official website of the respondent(s) and in absence of the same, cannot be allowed to raise any grievance, at this stage, merely on the ground that the petitioner belatedly made a telephone call and communications, which, either were responded vaguely by the respondents or not responded to at all.
[
12. When the instructions contained in the Handbook were clear and the same were made applicable to all the candidates uniformly, there cannot be any additional expectation from the examining body to cater to a particular individual more than the others. If the examining body resorts to furnish or intimate the candidate by additional information, that is a discretionary act on the part of the examining body, which is to be treated as an additional facility that the examining body is not duty-bound to provide.
[Emphasis supplied]

31. Learned counsel for the petitioner has tried to distinguish the decision in Dr. Renuka Bulani Prasad (supra) by taking the stand that the said case related to admission in a diploma course while the present case relates to an undergraduate course, hence a certain degree of leniency may be extended to the petitioner, who is fresh out of school. This court is not inclined to sustain such an argument. The fact remains that the public notices were available to all the candidates who were desirous of appearing for the examination. As per the information placed on record, around 10,000 students, of the similar age as the petitioner, appeared for the examination based on the aforesaid information. When the information was uniformly available to all the candidates, the petitioner cannot claim any special equities in her favour. Hence, this court is of the view that the information provided to the petitioner was sufficient for her to have appeared in the examination.
32. The issue that now needs to be decided is whether a re-examination/additional examination can be allowed to be conducted. In this regard, it is pertinent to refer to the relevant clause of the Information Bulletin for the NCET, 2023, which reads as under:

CHAPTER 9
IMPORTANT INSTRUCTIONS FOR THE CANDIDATES
8. For those who are unable to appear on the scheduled date of the test for any reason, a re-test shall not be held by the NTA under any circumstances.

33. Hence, it is seen that the Information Bulletin itself states that a re-examination cannot be held if a candidate fails to appear for the examination.
34. Undisputedly, the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature. However, the scope of interference of courts in academic matters has been definitively established by the Honble Supreme Court in a plethora of cases. The writ jurisdiction of this court has to be sparingly exercised in academic matters, only limited to extraordinary circumstances, in cases exhibiting manifest arbitrariness and malafide.
[See: University of Mysore and Anr v. C.D. Govinda Rao and Anr.3, Maharashtra State Board Of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Sheth Etc.4, Bhushan Uttam Khare v. Dean, B.J. Medical College and Ors.5 and Medical Council Of India v. Sarang and Ors.6]
35. In this regard, much emphasis has been laid by learned counsel for the petitioner on the socio-economic background of the petitioner and the lack of access to the internet due to which she was unable to download her Admit Card in time. Although this court is cognizant of the fact that candidates from all spheres of life appear in such examinations, each facing their own sets of hardship, however, when the petitioner had accepted the rules and regulations of the examination by filling up her application form, she cannot be allowed to challenge the same at such a belated stage. Admittedly, the petitioner was aware that all the examination-related information would be available online. Pursuant to the same, she had filled the application form for the examination. It was incumbent upon her to check the website of the NTA periodically and keep herself informed about the relevant dates.
36. The argument advanced by learned counsel for the petitioner that around 10,000 candidates could not appear for the examination hence a re-examination is a viable solution, does not hold water. Even if a substantial number of candidates could not appear for the examination after registering for the same, the fact remains that none of them have approached this court, apart from the petitioner. To conduct an additional examination for one candidate, who admittedly failed to sit for the examination due to her own negligence, would be highly unjust to the other candidates who did manage to appear for the examination.
37. Moreover, as per the additional affidavit filed by the NTA, even after receipt of the advisory email on 08.08.2023, the petitioner did not access her City Intimation Slip till 10.08.2023, i.e. a day after the date of the examination. The actions of the petitioner may be attributed to genuine grounds, however, this court cannot countenance such a callous approach, when thousands of other candidates successfully downloaded their Admit Cards and appeared for the examination.
38. In the present case, it is seen that the results of the examination have already been published and the counselling process has also commenced. At this stage, a re-examination would only have the unwelcome effect of delaying the admission process for the present Academic Session, while also placing an enormous burden on the resources, which, is wholly unwarranted. The same has been held in the decision of this court in Akshita Sabharwal (supra). Paragraph no.19 of the said judgment reads as under:
19. In view of the aforesaid, this court does not find any merit in interfering into the present matter, at this stage, as the results of the said examinations have already been declared and the counselling is likely to commence soon. At this stage, any direction to the effect of arranging or assigning the merit position to the petitioner, who could not appear in the said examination, would have the negative effect of derailing the admission process.

39. So far as the argument raised by learned counsel for the petitioner that the petitioner should be allotted a seat against any of the vacant seats in the said course is concerned, this practice has consistently been deprecated by the Honble Supreme Court in its decisions in the cases of Medical Council of India v. Madhu Singh7, Mridul Dhar v. Union of India8 and Arvind Kumar Kankane v. State of U.P.9
40. Even otherwise, when a statutory body such as the NCTE, in its additional affidavit has taken the categorical stand that candidates have already been selected against the total allotted seats of 3950, this court finds no cogent reason to disregard the same.
41. For the reasons stated hereinabove, this court does not find any merit in the present petition.
42. Accordingly, the petition stands dismissed alongwith the pending application.

PURUSHAINDRA KUMAR KAURAV, J
NOVEMBER 07, 2023
rg

1 2023:DHC:5309
2 2023:DHC:5330
3 1964 SCR (4) 576
4 (1984) 4 SCC 27
5 (1992) 2 SCC 220
6 (2001) 8 SCC 427
7 (2002) 7 SCC 258
8 (2005) 2 SCC 65
9 (2001) 8 SCC 355
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2023:DHC:8125