Shiv Anjali Srivastava vs University Of Allahabad And ...
2012 Latest Caselaw 3775 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.38
 

 
Civil Misc. Writ Petition No. 36334 of 2012
 
Shiv Anjali Srivastava 
 
Vs. 
 
University of Allahabad & Ors.
 
*****
 

 
Hon'ble A.P. Sahi,J.

Heard Sri Ashok Khare, learned Senior Counsel for the petitioner and Sri V.K. Singh, learned Senior Counsel for the respondent Nos. 1, 2 and 3 representing the Allahabad University.

This writ petition has been filed by the Ward of a teacher of a constituent college of the Allahabad University seeking admission in MBA Course. The petitioner's father is a Reader in Commerce in C.M.P. Degree College, which is admittedly one of the constituent colleges of the University of Allahabad.

The petitioner appeared in the entrance test for the M.B.A. Course of Allahabad University and was placed under the wait listed category, being the ward of an employee, at Serial No. 1 with the overall rank of 34. Three other candidates were also short listed whose names have been reflected in the said list, copy whereof is annexure 5 to the writ petition. These facts are undisputed.

Apart from this, the regulations that were existing for the purpose of extending the benefit of admission to the wards of employees as contained under Clause 4(b) of Ordinance 53 is also undisputed. A copy of the same is Annexure 12 to the writ petition, and the relevant Clause 9 which is to decide the fate of this case is quoted herein under:-

Clause 9. After the completion of admission on the sanctioned seats in each course of study, the sons and daughters of the regularly appointed and presently retired or serving teachers/employees of the University, the University Institutes, the Constituent Colleges and the Constituent Institute, who fulfil the conditions laid down in clauses 7 and 8 supra and produce the relevant certificate in the prescribed format duly signed by the Registrar in the case of the University and the University Institutes, the Principal in the case of the Constituent Colleges and the Director in case of the Constituent Institute, shall be admitted, on the basis of their relative scores (as per Clause 7 and/or Clause 8) against 5% supernumerary seats (with a minimum of one seat) in each course of study, generally in the Unit/Sub-Unit in which the teachers/employees are serving or wherefrom they have superannuated.

Provided that if the teaching in the course of study so desired for admission by a candidate is not imparted in the concerned Unit/Sub-Unit, the candidate can be considered for admission in the Unit/Sub-Unit other than the concerned Unit/Sub-Unit.

Note: 1. For the purpose of this Clause, there shall be three main Units - (a) University and University Institutes, (b) Constituent Institute and (C) each Constituent College forming a separate sub-Unit.

2. 'Concerned Unit/Sub-Unit' means the Unit/Sub-Unit in which the parent is or had been serving.

Sri Khare submits that the petitioner being at Serial No. 1 in the merit was therefore entitled to be considered and extended the benefit of admission in the M.B.A. Course as the seat was available under the 5% supernumerary quota as provided for under Clause 9 aforesaid.

Sri Khare has invited the attention of the Court to the proviso to Clause 9 to contend that if the Course in which admission is sought is not available in the unit where the parent of the ward is employed, then in that event the candidate will be considered for admission in the Unit/Sub-Unit other than the concerned Unit.

The notes appended to the ordinances categorically provide the definition of the word units, and the concerned unit/sub-unit has been defined to mean in which the parent is or had been serving.

In the instant case, the undisputed position is that the petitioner's father is an employee not in the concerned unit where the course is being run. The M.B.A. Course is run by the University whereas the petitioner's father is employed in a constituent college which is a different unit. The question therefore raised by Sri Khare is that assuming all the facts to be correct, Clause 9 categorically comes to the aid of the petitioner, inasmuch as, she has to be considered for admission in the University even it is a different unit.

This matter had been entertained and on 27th July, 2012 and the following order had been passed:-

Heard Sri Ashok Khare, learned Senior Advocate for the petitioner and Sri Gaur, learned Senior Advocate for the respondent-University.

Sri Gaur states at the bar that this issue relating to admission against 5% supernumerary seats is engaging the attention of the University on the various representations that have been filed and a decision is to be taken within 10 days from today. The contention of Sri Khare is that even if any such decision is taken, the same would not apply retrospectively in as much as the entire examinations which have been conducted for admission to the MBA Course has been proceeded with on the basis of then existing ordinance which would apply to the petitioner as well. He submits that any subsequent change or alteration cannot take away the right of the petitioner to seek admission under the 5% quota.

The University is expected to take a decision at the earliest keeping in view that the session of the said course is to commence very shortly and other admissions have already been finalized.

In the circumstances, the matter shall now be taken up on 8.8.2012. By which date the University is expected to communicate the decision to the Court or to the candidate concerned.

The University had been given time to deliberate upon the said issue as the admissions under the 5% supernumerary category had been held-up as no final admissions had been undertaken as it was pending consideration by the University.

On the last occasion the learned counsel for the University handed down the following decision which is said to have been taken in the meeting of the Admission Committee dated 13.8.2012. The same is extracted herein under:-

"In compliance of the directions of the Hon'ble High Court in the case of admission of the employees' ward to the MBA degree course in the University a meeting of the Admission Committee was held on 13.08.2012 at 1.00 pm. in the office of the Dean Student Welfare. The members discussed at length the object and purpose of increasing 5% supernumerary seats in all the courses of the university, its constituent colleges and institutes in the light of regulation 9 of the admission regulations framed under clause 4(b) of the Ordinance LIII: Admission to the courses of study under the University. The definition of the term 'employee' provided under section 3(k) given under the University of Allahabad Act, 2005 was also considered.

The Committee unanimously concluded that the sons/daughters of the regularly appointed and presently retired or serving teachers/employees of the University, University Institutes, Constituent Colleges and the constituent institutes will be considered for admission in the respective unit/sub unit of their parents on the basis of relative merit of the candidates in that unit/sub unit.

The candidates seeking admission in such courses which are not being run in the unit or sub-unit of his parent can be considered for admission in other unit/sub unit if there is vacancy left after admission of employees' wards of that unit/sub-unit against supernumerary seats."

The matter was adjourned for today on the request of the learned counsel for the University to assist the court.

Sri Khare, learned Senior Counsel contends that this subsequent decision of the admission committee cannot apply retrospectively in relation to the admissions, the results whereof were already declared and the petitioner had already been reflected as the candidate at Serial No. 1 in the admission test result of 2012, copy whereof is annexure 5 to the writ petition. He submits that after the declaration of results any subsequent decision taken would apply prospectively and cannot take away rights accrued in favour of the petitioner on the date when the results were declared which would be governed by the then existing regulations. He therefore submits that Clause 9 as extracted hereinabove would govern the field.

Sri V.K. Singh, learned Senior Counsel submits that the University has deliberated the matter in order to understand the true import of Clause 9 aforesaid and it is thereafter that the University has decided to bring about a clarification in the aforesaid provision whereby preference has to be given first to the ward of such an employee who is employed in the same unit.

This change, therefore clearly indicates that the ward of the employee of the University, as in the present case, would be given the first preference and if any vacancy remains then only such wards who are the wards of employees of different units would be considered. Sri Singh therefore submits that in view of the aforesaid provision having been explained in the decision of the admission committee the claim of the petitioner cannot be accepted.

He further informs the Court that one of the candidates in the said list Mr. Vaibhav Jaiswal who is at serial No. 4 has been admitted alongwith one Sri Satyam Srivastava whose ranks are 47 and 48 under the respective category. Sri Satyam Srivastava appears to be of the General Category.

Sri Singh therefore submits that the candidates who have now been accommodated they should also be made parties in this writ petition and then the matter should proceed for decision.

In reply, Sri Khare submits that the impugned action of the University either in passing the resolution on 13.8.2012 or admitting students in pursuance thereof would be governed by the doctrine of lis-pendens as the entire matter was subjudice before this Court. The University has therefore knowingly proceeded to grant the admission which can only be treated to be provisional subject to the outcome of the writ petition.

He contends that the University having taken a decision on 13th August, 2012 cannot be permitted to change the rules of the game after the game was played as observed in several decisions of the apex court including the decision in the case of K. Manjusree Vs. State of Andhra Pradesh and another, (2008) 3 SCC 512 paragraph 32, and the case of Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11 paragraph 14.

Having heard learned counsel for the parties and having assessed the documents on record, the contention of Sri Singh that the matter should proceed only after impleading the concerned students does not appeal to reason, inasmuch as, the admissions have admittedly been contracted during the pendency of the litigation. The admissions therefore were definitely subject to the outcome of the writ petition about which care has to be taken by the University itself by informing the admitted candidates that their admissions would be subject to the result of the present writ petition. In such circumstances, the admissions would obviously be governed by the decision in this writ petition.

The University has taken a decision on 13th August, 2012 during the pendency of this petition on the basis whereof such admissions are said to have been made. Accordingly, if the decision of the University itself cannot stand the scrutiny of law then the admissions which have been made during the pendency of this petition and without the matter being finally dealt with by this Court, have to fall through.

The University as a matter of fact should have not proceeded to admit students when the policy of admission was under direct scrutiny by this Court on the contest put forth by the University. As a mater of fact, the dispute related to an Academic matter and therefore the Court respecting its expertise had given leverage to the University under the order dated 27.7.2012 to take a just decision.

The principle that if the subsequent action during the pendency of the litigation has to fall through if the original action is set aside has been adumbrated in the decision of Kanwar Singh Saini Vs. High Court of Delhi - 2012 (4) SCC Pg. 307 (Paragraph 39) where the latin maxim sublato fundamento cadit opus has been quoted with approval. This principle has also been extended to administrative decisions as held by the apex court in the case of Badrinath Vs. Government of Tamil Nadu and others - 2000(8) SCC 395 (Paragraph 27). In the circumstances, the aforesaid objection taken by Sri Singh cannot be sustained and is hereby overruled.

Coming to the issue relating to the rules applicable, Sri Khare is right in his submission that if the rules of the games have been changed after the game has been played then in that event the decision dated 13.8.2012 of the Admission Committee cannot be applied retrospectively.

In the instant case, there is no doubt or any dispute, that as on the date when the results of the admission test were declared, the rules that were existing did not contemplate any such contingency as has now been introduced under the resolution dated 13.8.2012. This administrative decision allegedly clarifying Clause 9 in my opinion cannot be treated to be declaratory so as to apply retrospectively. The decision is a conscious and distinct departure from the earlier rule which will apply prospectively. The words used in Clause 9 as existing on the date of the declaration of results did not exclude the consideration of candidates like the petitioner. Accordingly, the decision taken on 13th August, 2012 will not govern the case of the petitioner in any circumstance and her admission has to be considered in the light of Clause 9 as it then stood. The change vide resolution dated 13.8.2012 is an addition of a further condition in the shape of a fresh amendment and is not a clarification.

The petitioner therefore in my opinion placed at Serial No. 1 in the merit list ought to have been given admission by the University in terms of Clause 9 as it stood on the date when the merit list of this category was notified . Accordingly, the writ petition is allowed. A direction is issued to the respondent University to admit the petitioner forthwith in the M.B.A. Course. The candidate of the category of the petitioner who stands lower in merit and has been admitted under the subsequent decision dated 13.8.2012 will have to be eliminated.

Accordingly, the writ petition is disposed of leaving it open to the University to accommodate candidates of this category or any candidate already admitted during the pendency of the petition in case there is a vacancy available under the 5% supernumerary quota after admitting the petitioner.

Dated 28.8.2012

Sahu