Hemant Gaur And Ors. vs Union Of India And Ors.
2001 Latest Caselaw 1998 Del

JUDGMENT

A.K. Sikri, J.

1. The case relates to admission to the Bridge Course conducted by Respondent No. 4, namely, YMCA Institute of Engineering (hereinafter to be called as 'YMCA Institute' for short), after being approved by Respondent No. 2 i.e. All Indian Council for Technical Education (hereinafter to be called as 'AICTE' for short). Two sets of students are staking their claims for admission to this course; one group consists of those students who passed the Post Diploma Course/Advance Diploma Course in the years 1995-96 and 1996-97 (hereinafter to be called as 'first category' for short) and the other group represents those students who passed their Post Graduate Diploma Course in the academic year prior to 1995-96 (hereinafter to be referred to as 'second category'). The chequered history of these cases is stated in substantial details by the learned Single Judge in the impugned judgment dated 30.10.2001 and, therefore, it would not be necessary to repeat the same. However, the facts essential for disposal of the present appeal are necessarily to be stated. It would be prudent to refer to these facts first so that the controversy is appreciated in its proper perspective.

2. Till the year 1995-96 YMCA Institute was offering Post Diploma Course in Engineering in various disciplines such as Electrical, Computer, Mechanical etc. After the promulgation of All India Technical Education Act, the recognition by AICTE under this enactment for continuing or starting in such a course became imperative. In the year 1995-96 AICTE accorded approval to YMCA Institute for this course which was renamed as Advance Diploma Course in place of Post Diploma Course known earlier subject to the conditions that:

A. the entry level be raised from 11th to 12th,

B. the duration of the course shall be four years after 12th class examination and

C. the Institute should carry out modifications by adding tonics in the course contents of various courses as suggested.

3. In the year 1997-98 the Government of Haryana upgraded the course of B.Tech Programme. Students studying Advance Diploma Course made representation for approving of a Bridge Course for those students who had successfully completed Advance Diploma Course to enable them to have a degree. As AICTE did not accede to their representation, CWP. No. 7364/99 was filed in this Court. It was allowed by judgment dated 20.9.2000 issuing a Writ of Mandamus directing AICTE to accord approval for having the Bridge Course for students who had studied and were studying Advance Diploma Course in the YMCA Institute. This was Writ Petition filed by 102 students of YMCA Institute who had passed out Advance Diploma Course after being admitted to the course in the year 1996-97 i.e. those belonging to first category.

4. After this writ petition was decided, AICTE by letters dated 16.4.2001 and 28.8.2001 informed the YMCA Institute that it had approved to conduct of one year full Bridge Course leading to the degree in Engineering. The Bridge Course was approved with an intake of 225 students subject to certain conditions. It may be mentioned that AICTE has satisfied itself that YMCA Institute fulfillled these conditions. This is the result of inspection done by the inspection team which has visited the Institute on 5.9.2001 and, therefore, approved the infrastructure available conducting the Bridge Course with intake of 225 students.

5. Since there was delay in implementation of the judgment dated 20.9.2000, CM. 8458/2001 was filed in CW. 7364/1999 by the petitioners in that writ petition. At this stage it may be mentioned that certain other students also filed CWP. No. 2861/2001 seeking a prayer that benefit of judgment dated 20.9.2000 passed in CW. No. 7364/99 be extended to them. This petition and CMP. 8458/2001 were disposed of by order dated 11.9.2001 giving the direction to give admission to all the petitioners of CW. No. 7364/99 and CW. No. 2861/2001 in the first instance and fill up the remaining seats from among the students who had passed 10+2 examination with Physics, Chemistry and Mathematics strictly in accordance with merits of the applicants. It would be pertinent to note here that CWP. No. 2861/2001 was filed by four petitioners who were the students who had passed their course prior to the academic year 1995-96 and were awarded Post Diploma Course in Engineering i.e. they belong to second category.

6. The effect of aforesaid orders was to give admission to the petitioners in CWP. No. 7364/99 and CWP. No. 2861/2001 (106 students in all) and thereafter to fill the remaining seats strictly on merits.

7. For filling up the remaining seats a question arose, viz, whether the first category students only were to be considered or students for both the categories were to be considered in accordance with merits. The appellants herein who belong to first category filed CW. 6184/2001 wherein they claim that they are at par with the students in CWP. No. 7364/99 and, therefore, they should also be given admission to the Bridge Course as a matter of right. On the other hand students belonging to second category filed a batch of writ petitions contending that they belong to same class and all students who had passed out either Post Diploma Course in Engineering i.e. prior to 1995-96 or Advance Diploma Course in Engineering i.e. after 1996-97 be admitted to the course strictly in accordance with merits.

8. All these writ petitions came up for consideration before the learned Single Judge who passed impugned judgment dated 30.10.2001. The learned Single Judge discussed the nature of two diplomas at great length and came to the conclusion that there was no difference between the two diplomas, namely, Post Diploma Course and Advance Diploma Course. As per the opinion of the learned Single Judge the only change made after the course was to rename it as Advance Diploma and entry level was raised from Class 11 to Class 12 +. Learned Single Judge further held that as most of the students who had taken admission in the Post Diploma Course prior to academic year 1995-96 had passed their class 12 before taking admission in the said course, the students of second category could not be differentiated. This conclusion finds expression in the following portion of the impugned judgment:

"A perusal of all the aforesaid orders and the correspondence exchanged between the Government of Haryana and the AICTE lead to only one conclusion that the bridge course was open to all students who had either passed their post-diploma course in engineering or the advance diploma course in engineering provided they were admitted in these course after clearing 10+2 examination conducted by the recognised board of education. There cannot, therefore, be any discrimination between students who had passed post-diploma or the advance diploma course since they have passed similar examination with same syllabi and were admitted to these course after their having passed 10+2 examination with Physics, Chemistry and Mathematics. I, therefore, do not see any reason as to why the students who had passed their post-diploma course in engineering after being validly admitted to the course prior to the academic year 1995-96 should be denied admission in the bridge course leading to the grant of a B.Tech degree in engineering as the initial letter of 19th May, 1999 written by the Government of Haryana to the All India Council for Technical Education clearly states that the bridge course was meant for the students of both the post diploma course as well as the advance diploma course".

9. The impugned judgment also refers to the circumstances under which orders were passed in the earlier writ petitions, namely, CWP. No. 7346/99 and CWP. No. 2861/2001 whereby students of both the categories were directed to be admitted to the Bridge Course. It also noted that fact that the earlier orders dated 28.5.2001 and 11.9.2001 had not been challenged by any party and had attained finality. This discussion to this effect runs thus:

"Since the only condition of the AICTE for admission to the bridge course was that the students who had cleared their post-diploma course in engineering must have cleared their 10+2 examination before being admitted to the post-diploma course, the court in its judgment dated 28.5.2001 directed the respondents to admit the petitioners in CWP. No. 2861/2001 in the bridge course approved by AICTE for the grant of degree in engineering. This direction was given because the petitioners in that petition had passed 10+2 examination before being admitted in the post-diploma course in engineering. It was in the light of the above facts that this Court in its order passed on 11.9.2001 on an application being CM No. 7203/2001 filed in CWP. No. 7364/99, had directed the institute to start the course w.e.f. 15th October, 2001 and give admission to all the petitioners of CWP No. 7364/1999 and 2861/2001 in the first instance. The Court had further directed that the remaining seats available with the Institute will be filled up by the eligible candidates from amongst the students who had passed minimum 10+2 examination with Physics, Chemistry and Mathematics and admission will be done strictly in accordance with merits of the applicants who might apply for being admitted to the course. Neither the order dated 28th May, 2001 nor the order dated 11th September, 2001 have been challenged by any party and they have thus become final".

10. After recording the aforesaid opinion the petition was disposed of with the following direction:

"In view of the foregoing discussion, I direct the respondents to admit all the eligible candidates who had passed their post-diploma course or the advance diploma course in engineering after being admitted to the courses after passing minimum 10+2 examination with Physics, Chemistry and Mathematics, strictly in accordance with the merits of the applicants who have applied for being admitted to the course. The candidates who may be left out and are not admitted to the course because of their being low in merits will be eligible for taking admission in the bridge course in the academic year 2002-2003. With these observations, the petition stands disposed of".

11. The position that emerges from the aforesaid discussion can be summarised in the following manner:

1. The AICTE has accorded permission to YMCA Institute for Bridge Course for the grant of degree in Engineering in respect of those students who had passed 10+2 Examination and thereafter done Post Diploma Course or Advance Diploma Course from YMCA Institute.

2. The Bridge Course was approved with an intake of 225 students.

3. By Order dated 11.9.2001 direction was given, while disposing of CM. 8458/2001 filed in CW. 7364/1999 and CW. 2861/2001, to admit all the petitioners in the aforesaid two writ petitions in the first instance i.e. give admission to 106 students on preferential basis.

4. Remaining seats were directed to be filled strictly in accordance with merits.

5. As per the impugned judgment rendered on 30.10.2001 these remaining seats were to be filled strictly in accordance with merits of the applicants belonging to both the categories.

6. The candidates who may be left out and not admitted because of their being low in merit would be eligible for taking admission in the Bridge Course in the academic year 2002-2003.

12. The appellants herein who were the petitioners in CWP. No. 6184/2001 and belong to first category wanted preferential treatment in the same manner in which the petitioners in CWP. No. 7364/99 were given benefit. Therefore, they were not satisfied with the impugned judgment as per which they had to compete with the students belonging to second category and admissions were to be given on the basis of inter-se merits of these students. Therefore, they have filed the present appeal challenging the impugned judgment of the learned Single Judge.

13. Certain developments which have taken place after the filing of the present appeal would now be noticed as they have bearing on the disposal of this appeal. This appeal came up for hearing on 6.11.2001 when notice to show cause why appeal be not admitted was issued to the respondents, returnable on 5.12.2001. In CM. 1479/2001 filed by the appellants herein direction was issued to the effect that 13 seats of the Bridge Course in the respective discipline of the appellant be not filled up by YMCA Institute till the next date of hearing. This order was served upon YMCA Institute i.e. Respondent No. 4 on the same date when counselling was being done and students were admitted. There is some dispute about the timing of the service of the communication of the order and to this effect we shall address at the appropriate stage. What is required to be mentioned at this stage in that the YMCA Institute had completed the admission process. However, 13 students who were admitted and fee taken were not allowed to join the course because of the aforesaid interim order. These 13 students have filed intervention application in this appeal seeking to intervene in this case and opposing the present appeal filed by the appellants and submitting that they should be allowed to joint the course on the basis of admission rightfully granted to them.

14. Mr. N.K. Kaul, learned counsel appearing for the appellants pointed out that the learned Single Judge in his impugned judgment formulated the point involved at Page-2 thereof by observing that the question to be decided was as to whether the admission in the Bridge Course was open only to those students who belong to first category and not open to those who belong to second category. According to Mr. Kaul, learned Single judge fell in error by formulating this question and thereafter addressing this question in the impugned judgment. It is because the prayer made by the appellants in the Writ Petition filled by them as to the effect that since they were similarly situated as the writ petitioners in the CWP. No. 7364/99, the appellants were also entitled to the same benefit which was given to them by orders dated 20.9.2000. In other words it was submitted that they were also entitled to the same preferential treatment and were entitled to the admission in the same manner in which 102 petitioners in W.P. No. 7364/99 were given as they belong to the same category. The learned counsel further referred to various communications exchanged between AICTE and the Institute as well as Haryana University as per which the Bridge Course was meant only for the students belonging to 'first category' i.e. for batches of 1995-96 and 1996-97 and, therefore, for all these students there had to be an automatic admission. It was sought to be suggested that if the matter is looked into from this angle, all the students belonging to first category should have got automatic admission and only balance seats that remained unfilled should have gone to the students belonging to second category as per their ranking in the merit. It was submitted that by excluding the appellants although belonging to same category as petitioners in CW. 7364/99 a class within class was sought to be treated which was clearly discriminatory and impermissible.

15. In the alternative, it was submitted that even if all the appellants were to be accommodated the respondents were supposed to create only three more seats and if respondents adopt this course, all the persons who were given admission and have not joined because of the stay order and have filed impleadment applications as well as all the appellants would be adjusted.

16. Challenging the aforesaid stand taken by learned counsel for the appellants it was submitted on behalf of YMCA Institute that the appellants were making false claims by contending that there were two batches who had studied Advance Diploma Course i.e. 1995-96 and 1996-97. In fact there was only one batch who studied the Advance Diploma Course i.e. 1996-97 and the appellants who did Diploma Course in the year 1995-96 were in fact fully aware that they were the students of Post Diploma Course and had been making false statement that they had completed Advance Diploma Course. Therefore, they could not equate themselves with 1996-97 batch and the appellants also could not be the beneficiary of the judgment in CW. 7364/99 which related to the students of 1996-97 batch only. It was submitted that the appellants became entitled to Bridge Course in view of judgment dated 30.10.2001 as per which all the eligible candidates who had passed their Post Diploma Course or Advance Diploma Course in Engineering after being admitted to the course after possessing minimum 10+2 qualification with Physics, Chemistry and Mathematics strictly in accordance with merits of the applicants who had applied for admission of this course. But for this impugned judgment dated 30.10.2001 the appellants were not entitled to any benefit. Therefore, they had no right to challenge this judgment. It was also submitted that the appellants were found to be extremely low in the merit except two and due to this reason they could not be admitted to the Bridge Course.

17. Mr. Sandip Srivastava, Mr. Gagan Gupta, Mr. M.M. Kalra and Mr. Pramod Ahuja, Advocates made submissions on behalf of intervenors and they also contested the claim for the appellants herein. Their contention was that both the categories of students formed same class as similarly situated and, therefore, the direction of the learned Single Judge in giving admission to them strictly on merit was perfectly justified. It was further submitted that these intervenors were much higher in merit than the appellants and, therefore, they had prior right in getting the admission and accordingly were rightly admitted by the YMCA Institute. In fact the applicants/intervenors in CMs. 1504-05/2001 belong to 1996-97 batch (i.e. the first category) and, therefore, in any case they had much better claim than the appellants when their position in merit list was also superior to that of the appellants. Likewise applicants in CM. 1607/2001 belong to 1995-96 batch like the appellants but were given the admission because of their higher merit. Their admission, therefore, could not be denied on any reckoning.

18. After considering the respective submissions, we are of the opinion that the directions given in the impugned judgment of the learned Single Judge deserve to be upheld. There is no denial of the fact that the petitioners in CW. 7364/99 belonged to 1996-97 batch. It is on their petition who had done Advance Diploma Course that the direction was given to start the Bridge Course. Admittedly the appellants had done Post Diploma Course. Even if this Post Diploma Course was same as Advance Diploma Course, then as far as the appellants are concerned they cannot say that their case was on a better footing than the case of those students who had done this Course prior to 1995-96. The learned Single Judge was right in holding that the only condition of AICTE for admission to the Bridge Course that the students who had cleared their Post Diploma Course in Engineering must have cleared their 10+2 examination before being admitted to the Post Diploma Course. Therefore, when the students belonging to second category are also the students of 10+2 and done Post Diploma Course they stand on same footing and no discrimination can be meted out by excluding second category students from admission to Bridge Course and confining the same only to the first category of students.

19. Insofar as giving the preferential treatment to the petitioners in CW. 7364/99 and CW. 2861/2001 is concerned, order to that effect was passed on 20.9.2000. This order was not challenged by any person. This order became final. Therefore, when the learned Single Judge was deciding the writ petition filed by the appellants herein which has lead to passing of the impugned judgment, learned Single Judge had to proceed on the basis that order of 20.9.2000 had become final. As per this order the petitioners in CW. 7364/99 as well as CW. 2861/2001 were to be given admission in the first instance and the remaining seats were to be filled up among the eligible students strictly in accordance with merit of the applicants. Therefore, the only question which fell for determination was regarding the parity between the two categories of students. The learned Single Judge rightly formulated this question and focussed his attention to the same. When the learned Single Judge found and correctly so that students of both the categories belong to same class, the direction was rightly given in the impugned judgment to the effect that the applicants from both categories who had applied for the admission will have to be admitted and while giving them admission, the criteria as already laid down by order dated 20.9.2000 in earlier writ petitions had to be applied, namely, it was to be done strictly in accordance with merits. If the writ of the appellants herein was to be allowed, it would have the effect of disturbing the order dated 20.9.2000 which had otherwise become final. Therefore, we do not find any infirmity in the order of learned Single Judge which is hereby upheld. Resultantly 13 persons who were given admission on the implementation of the judgment of the learned Single Judge have a right to join the course and attend the classes as students properly admitted to the said course. Their intervention applications are accordingly allowed.

20. At this stage we may examine alternate conditions of the learned counsel for the appellants. By giving preferential treatment to the students who were the petitioners in CW. 7364/99 and CW. 2861/2001, some students have been given preferential treatment and got automatic admission although they may be otherwise below in the merit than the appellants herein. Position would have been different had all the 225 seats been filled strictly in accordance with merit. That has not happened. There were 106 (102+4) petitioners in CW. 7364/99 and CW. 2861/2001 who became entitled to automatic admission by virtue of order dated 20.9.2000. In the first counselling for them, 99 students approached and were given admission. In the second counselling which was done strictly according to merit, 118 students are admitted. This include 13 students who are the intervenors. In this way 217 seats have been filled leaving a balance of 8 seats. Out of 13 appellants to appellants have been admitted on the basis of their merit. This leaves 11 appellants and 8 vacant seats. Therefore, if all the appellants are to be accommodated, 3 more seats are to be created. When the matter was argued on 7.12.2001 we had put it to counsel for YMCA Institute as well as AICTE as to whether they would be able to accommodate these students. This information was sought without straining their resources and in the peculiar facts of this case. The learned counsel for YMCA Institute replied in the affirmative. Since the recognition from AICTE is also required, learned counsel for AICTE Mr. C. Badrinath Babu submitted that he would be able to inform about this aspect after having instructions from AICTE on 11.12.2001. Learned counsel on 11.12.2001 informed the court that AICTE would be able to give the approval to YMCA Institute by increasing the three seats provided that, no more students are admitted. Since these appellants had filed Writ Petition immediately after the orders of 20.9.2000 and, therefore, were alive of their rights for which they approached the Court, it was considered appropriate and equitable if these appellants are also accommodated for which only three seats are to be created. After all the four students who were petitioners in CW. 2861/2001 and belong to second category got their admission and preferential right only because they had approached this court by filling CW. 2861/2001. No other person has come to this court. By giving admission to these three persons, more so when AICTE as well as YMCA Institute state that these three seats can be created and approved, it would be equitable to adjust all these 11 appellants. We order accordingly directing the YMCA Institute to admit these 11 appellants as well.

21. We make it clear that since the course has already started and with admission to these appellants as well as intervenors all seats stand filled and there is no other person to lay claim, no other student would now be given any admission. As per the direction contained in the impugned judgment those students who were left out and could not be accommodated shall be eligible for taking admission in the Bridge Course in the year 2002-2003. In the peculiar case of such a nature, the parties who have not come to the Court would not be entitled to the benefit of the judgment as held by Supreme Court in the case of Bhoop Sing v. Union of India and Ors. and in the case reported in 1995 SCC (L&S) 1140. We also make it clear that direction given to admit the appellants is in the peculiar facts of this case and would not act as precedent.

22. As already mentioned above suo moto show cause notice was issued to the Director, YMCA Institute for initiating contempt of court proceedings. Respondent No. 4 has, in answer to this show cause notice, submitted his explanation. From this explanation, we are satisfied that the Director or for the matter YMCA authorities had not violated the injunction order dated 6.11.2001 willfully or contumaciously. We accordingly drop these proceedings.

23. With the aforesaid observations, this appeal and all miscellaneous applications stand disposed of.