Navneet Bansal vs The Vice Chancellor University Of ...
1993 Latest Caselaw 52 Del

JUDGMENT

Vhender Jain, J.

(1) This order shall dispose of Civil Writs Nos. 2577 to 2581, 3707 and 3792 of 1992.

(2) This is a petition under Article 226 of the Constitution of India, challenging Clause Vlll(a) of the Bulletin of Information and the relative Ordinance (s), if any, issued by the University of Delhi providing that the Medical Course Admission Committee may assign a particular candidate to one institution, on the basis of the seats initially available in that particular institution and no shifting from one institution to another institution will be allowed once the allotment of institution/college has been finalised by the Admission Committee even though the candidate may become eligible for admission to the institution of his first choice on the basis of admitted merit-cum-choice criteria and the seats that remain or fall vacant as a result of some candidate not taking up admission or dropping out after taking admission.

(3) Since common questions arise in all these matters, we may well take facts of one petition only (C.W.2577/92).

(4) The case of the petitioner is that he appeared in the entrance examination and qualified in the said examination securing 128th rank in the merit list. The petitioner was entitled for admission only in respect of non-reserved seat. The petitioner in his application for admission to the entrance examination had indicated his first choice of institution as Maulana Azad Medical College (hereinafter to be referred 414 to as MAMC) and University College of Medical Science (hereinafter referred to as UCMC) as the second choice. The result of the entrance examination was published on 5th June, 1992. The case of the petitioner further is that though in the first instance he was assigned to Ucms, he having secured 128th rank in the merit list has become eligible for admission into Mbbs course and is entitled to Mamc as per position of the admission in 1992. However, because of the impugned conditions mention in the Bulletin of Information the petitioner was prevented from shifting into Mamc and be has challenged the said Clause VIII(a) of the Bulletin on the ground that h? has been deprived of his right of admission in Mamc and a less meritorious candidate who may or may not have expressed Mamc as his first choice was admitted into MAMC.

(5) Admittedly, in the past, i.e. up to 1991 the practice was that even though a candidate has been assigned to Ucms he/she could shift on the basis of higher in merit to Mamc on seats falling vacant depending upon the candidates who were not accepting the seats offered to them because they got and preferred admissions into other institution or because they preferred some other course. However, In the year 1992 the respondents have deprived the meritorious candidate from shifting from Ucms to Mams subject to the availability of the seats and instead decided to offer these seats to less meritorious candidate who would be getting rank lower than the . petitioner. Clause Viii (a) of the Bulletii. of Information reads as under:- "Allotment of colleges to the selected candidates will be made by the Medical Courses Admission Committee in order of merit-cum-choice of Institution preferred by the candidates in their application forms vis-a-vis availability of seats. The decision of the Committee shall be final and binding. No shifting from one institution to another institution will be allowed once the allotment of institution/ college has been finalised by the Admission Committee."

(6) The petitioner has further stated that up to the Session 1991, the relative condition permitted shifting of the selected candidates from one institution to another institution and the relevant clause Viii of the Bulletin of Information for the session 1991 reads as under:- "Allotment of Colleges to the selected candidates will be made by the Medical Courses Admission Committee in order of merit-cum-choice of institution preferred by the candidates in their application forms. The decision of the Committee shall be final and binding. No transfer or shifting of the candidates will be allowed after the close of the admission."

(7) In the counter-affidavit respondent admits that the shifting of candidate was not permitted up to the year 1988 but as the shifting created problems the change was necessitated by inclusion of a clause prohibiting such shifting for the students , who were admitted in the year 1992.

(8) On being asked as to how Clause Viii (a) of the Bulletin of Information has been changed for admission to Mbbs Degree Courses in 1992 the respondents 415 relied upon clause 11-G(4) of the Statute framed under Delhi University Act, 1922 (for short, the Act) which reads as under:- "lf, in the opinion of the Vice Chancellor, any emergency has arisen which requires that immediate action should be taken, the Vice Chancellor shall take such action as he deems necessary and shall report the same for confirmation at the next meeting to the authority which, in the ordinary course, would have dealt with the matter:"

(9) In sum and substance the arguments of the learned counsel for the respondent Mr. Kaul was that the Vice Chancellor has used the emergency power and has altered the policy regarding admision to 1st year Mbbs course for the year 1992.

(10) On the other hand, Mr. P.A. Rao the learned counsel for the petitioner has contended that the change in the Ordinance to effect the policy of admission can be made as provided in that section and it is only under Sec.31 of the Act, which provides inter-alia:- "ORDINANCE Show made:- (1) The Ordinances of the University as in force immediately before the commencement of the Delhi University (Amendment) Act, 1952, may be amended, repealed or added to at any time by the Executive Council: Provided that- (i) no Ordinance shall be made affecting conditions of residence or discipline of students, except after consultation with the Academic Council: (ii) No Ordinance shall be made- (a) affecting the admission or enrolment of students or- prescribing examinations to be recognised as equivalent to the: University examinations, or ; (b) affecting the conditions, mode of appointment or duties of examiners or the conduct of standard of examinations or any course of study, Unless a draft of such Ordinance has been proposed by the Academic Council."

(11) Mr. Rao also argued that in the instant case as the draft of such change in the policy of admission in Mbbs course was to proposed by Academic Council the Vice Chancellor did not have the power to change the policy under clause 11 G (4) of the Statutes.

(12) We are not inclined to go into this controversy in any detail. Even-though if we test the arguments of the learned counsel for the respondents that- the Vice Chancellor exercised his emergency powers then we have to see as to whether actually there was any situation of emergency which justified the exercise of such powers by the Vice Chancellor of the University. In the present case, there is not even a - plea regarding existence of any emergency much-less about its nature which would disentitle the students who were higher in merit to seek admission in the college of their choice.

(13) When the very existence of emergency on which the impugned action is sought to be based been questional it is the duty of the respondents to plead necessary facts and place material on record at least to prima facie show the existence of emergency in order to justify the exercise of emergency powers. We would like to see whether the 'Vice Chancellor has applied his mind objectively while changing/altering the criteria which was in existence for the students appearing and seeking admission in the year 1991. On the basis of documents filed by the respondent, it appears that the Medical College Admission Committee took the decision against the policy of shifting thereby adversely affecting the chances of meritorious students to seek admission to the college of their first preference in case any vacancy fell in that year and recorded a note to that effect. The Vice Chancellor has simply signed the same without considering the need for such a change and if the matter was so urgent as to take effect in the year 1992 itself without having first recourse to the Academic Council. Merely because the Medical College Admission Committee decided something cannot be a substitute for the words "in the opinion of the Vice Chancellor" as provided under Statutes 11-G (4). The opinion expressed by the Vice Chancellor must be explicit. Therefore, in our opinion, neither there existed any emergency nor the Vice Chancellor applied his mind as is required under Clause 11-G(4) of the Statutes or under Sec.31 of the Delhi University Act. We do not find any application of mind by the Medical College Admission Committee as to why it thought that change was necessary and why it must from the year 1992 itself. It is immaterial if the Academic Council later ratified the act of the Vice Chancellor which was invalid ab initio. In this view of the matter, we are of the opinion that Clause Viii (a) of the Bulletin of Information is not In confirmity with the rules and regulations and has to be struck down. We order accordingly. We are quite conscious of the fact that in university matters the interference by the courts has to be minimal but when we find that exercise of power has been arbitrary we must strike it down. There appears to be no 'consideration by the respondents, Medical College Admision Committee in particular, if its recommendation would not cause frustration to the students who are higher in merit being denied admission to a college of their choice while those lower in merit getting admission there. Of course, time limit can be set up to which shifting is permissible on the basis of merit. However, if the University Authority still feels that such a change is in the wider interest of the institutions and the students, it can always report to amend the policy in accordance with law. In view of our finding on this aspect, we do not desire to discuss or pass order on the arguments advanced by the learned counsel for the petitioner that under the Act the Vice Chancellor has no power to amend or change or alter the policy regarding admission to Mbbs course.

(14) In the result, the writ petitions are allowed. We direct the respondents will consider the admission of the shifting of the petitioner on the basis of the policy prior to its amendment in 1992. No order as to' costs.