The Gujarat High Court on Friday (18th September) allowed a 'failed student' (as declared by the University) to take the next phase of exams (to be held on 23rd September) while observing that technical glitches could be faced during an online examination.
The Single Bench of Justice Sangeeta K. Vishen further observed that "when working with the technology, technical glitches cannot be ruled out and must be taken into consideration."
Facts of the Case
An engineering student, Harsh Gandhi from Surat, had approached the High Court against the Gujarat Technological University (GTU), as the University had failed him in a test which was conducted on 06th August (for the subject – Foundation Engineering).
The Student contended that he couldn't answer the entire set of questions due to technical glitches during the online examination.
The student sought the High Court's intervention for allowing him to appear in the next phase of exams and to grant him a second chance to take the test.
On 8.9.2020, the Court issued a notice making it returnable on 14.9.2020 with a further direction to the Gujarat Technological University to allow the petitioner to appear in the pre-check trial test (held on 15th/16th September).
The respondent No.1 was also directed to file its reply. Accordingly, the respondent No.1 filed its reply and the rejoinder was filed by the petitioner.
Arguments put forth
Both the parties placed on record their defence, one voicing the technical difficulties faced by him and the other justifying the system being flawless.
The petitioner alleged that he, though logged in, in time, had faced certain technical glitch and accordingly, he could not attempt his paper of Foundation Engineering fully.
It was submitted by the petitioner that when the pre-check trial test was conducted on 15.9.2020, the technical glitch was again experienced by the petitioner as well as other students.
Accordingly, the University, on 15.9.2020, had put a tweet informing the student that they can re-appear tomorrow i.e. 16.9.2020 from 11:00 to 11:30 AM. It is submitted that thereafter, the petitioner had appeared in the pre-check trial test on 16.9.2020.
It was further contended that, as is discernible from the contents of the affidavit-in-reply filed by the respondent No.1 – University, it suggests that there is the least likelihood of any malfunction. The University does not say that there was no malfunction in the system.
It was also submitted that in the first instance, that is, on 17.8.2020, the petitioner was duly informed that he is not eligible to give examination; however, the University tried to improvise its stand by filing an affidavit.
Now, the stand of the University is that remedial examination is available to the petitioner, as the petitioner had failed in one of the subjects.
It was contended that the same would grossly affect the career of the petitioner inasmuch as, the petitioner will carry two mark sheets for the same subject, for no fault of him.
It was further submitted by the petitioner, that the contents of the affidavit are nothing, but an afterthought theory with a view to marring the case of the petitioner.
It was also submitted that in view of the settled position of law, as enunciated by the Apex Court in the case of State of Punjab vs. Bandeep Singh & Ors. Reported in (2016) 1 SCC 724, the University's action is impermissible.
In the said case, the Apex Court had held that,
"There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self-sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any Authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action." (emphasis supplied)
It was contended that right to education is a fundamental right and the same cannot be tinkered with by the University in such a fashion.
Reliance was also placed on the judgment of the Apex Court in the case of Mohini Jain vs. State of Karnataka (1992) 3 SCC 666 to submit that "Right to life" is the compendious expression for all those rights which the Court must enforce because they are basic to the dignified enjoyment of life.
It was further observed that it extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education.
The State Government is under an obligation to make an endeavour to provide educational facilities at all levels to its citizens. Further, reliance has been placed on the judgment of the Apex Court in the case of Popatrao Vyankatrao Patil vs. State of Maharashtra & Ors. 2020 SCC OnLine SC 291.
It was thus, urged that there was no fault on the part of the petitioner in not properly attempting the examination and thus, the action of the respondent No.1 – University is bad and illegal.
University's stand before the Court was that the stand of the petitioner about the petitioner having faced problem during the online examination is misplaced and misconceived. Several arguments were put forth to drive home this point.
The Court observed,
"As the technology is and we all know, it has the tendency of uncertainties, be it network issues, device issues etc. When working with the technology, technical glitches cannot be ruled out and must be taken into consideration."
Further the Court ordered,
"The problem, which the petitioner encountered during the examination on 6.8.2020, the petitioner must be allowed to appear in the examination, considering the fact that the situation complained of was beyond his control. The petitioner may not have faced the issue in a normal setting."
Hence, the Court ruled, the respondent No.1 – University, in view of the aforementioned discussion is directed to allow the petitioner to appear in the examination for the subject – Foundation Engineering, which is scheduled on 23.9.2020 of phase – 3, commencing from 21.9.2020.
However, the Court said that this order will not confer any equity in favour of the petitioner and is subject to the outcome of the captioned writ petition.
The matter has been listed for further hearing on 5.10.2020.
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