Delhi High Court

Abhishek Verma vs National Law School Of Delhi & Anr. on 1 August, 2008

Author: Vipin Sanghi

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P.(C) 5269/2008
%                         Date of decision: 01.08.2008

       ABHISHEK VERMA                                      ..... Petitioner
                             Through:    Mr. Harish Malhotra, Sr. Advocate
                                         with Mr. Rajinder Aggarwal,
                                         Advocate

                        versus

       NATIONAL LAW SCHOOL OF DELHI & ANR.        ..... Respondents
                      Through: Mr. Rajiv Bansal, Advocate

CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?          No

3. Whether the judgment should be              No
   reported in the Digest?

VIPIN SANGHI, J. (Oral)

C.M. No.10486/2008

Notice. Mr. Rajinder Aggarwal accepts notice on behalf of

petitioner. With the consent of the parties, I have heard the

application as well as the writ petition. Learned counsel for the

respondent states that this application may be treated as the

respondents' counter affidavit to the writ petition as well. Since I am

proceeding to dispose of the writ petition, no separate orders are

called for in this application.

W.P.(C) No.5269/2008

1. The petitioner challenges as arbitrary the condition/clause

inserted by the respondent in their communication dated 11.06.2008

which disqualifies the aspirants who pass the senior secondary school

examination (10+2 system) or equivalent examination in the year

2008 after appearing in compartment examination, from seeking

admission in the five year B.A. LL.B. (Hons.) programme/course.

2. The petitioner appeared in the Senior Secondary School

Education (10+2) Examination in March-April 2008 conducted by the

Central Board of Secondary Education (CBSE). The marks secured by

the petitioner in the said examination were as follows:-

       English                -   70%
       Biology                -   63%
       Bio-technology         -   60%
       Physics                -   49%
       Chemistry -        44%

3. The petitioner was placed in compartment in Chemistry

Theory paper since he did not secure the passing marks. The

compartment examination has been held on 19.07.2008 in which the

petitioner appeared and is awaiting his compartment result.

4. The petitioner was desirous of pursuing the law course and

appeared in the entrance examination conducted by the respondents

on 01.06.2008. In the said examination, the petitioner has secured 7 th

rank amongst the Scheduled Caste candidates to which category the

petitioner belongs. With this rank, there is no dispute that the

petitioner would normally have got admission in the respondent law

school, but for the impugned condition prescribed by the respondents

in their letter dated 11.06.2008. The eligibility condition prescribed by

the respondent for the five year B.A. LL.B. (Hons.) programme in the

admission notice reads "Senior Secondary School Examination (10+2

System) or equivalent Examination with not less than 50% of marks in

the aggregate (those who have appeared in the examination in

March/April, 2008 can also apply)". Therefore, there was no restriction

in the eligibility conditions that the candidate should have passed the

Senior Secondary School Examination (10+2) system without a

compartment.

5. On 11.06.2008 the respondent issued a communication to

the students in the merit list, including the petitioner. In this

communication it was, inter alia, stated:

"Based on your performance at the All India Entrance Test held on 1st June, 2008, you are being offered provisional admission to the 5-year integrated B.A., LL.B (Hons.) Degree programme of National Law School of Delhi. You admission is subject to your fulfilling the following conditions:

You have passed the Higher Secondary School Examination (10+2 system) or an equivalent examination thereto securing in the aggregate not less than 50% of the total Marks. If you have passed any subject in the year 2008 after appearing in compartment examination in the said subject, you will not be eligible for admission irrespective of your merit position in the entrance examination."(emphasis supplied)

6. The respondent further stated that the students would be

required to meet the admission committee alongwith their parents on

the date to be informed on 02.08.2008, alongwith the specified

documents. Amongst these documents the original statements of

marks of the qualifying examination (10+2/intermediate/PUC/HSC/

etc.) and 10th standard were also specified. The successful students

were informed that in case they intended to join the course, they

should send the enclosed proforma alongwith a demand draft for

Rs.1,51,000/- (Rs.1,48,500/- for SC/ST candidates). They were also

required to submit for advance verification, the attested copies of

Class 10th and Class 12th mark statements, birth certificate, character

and transfer certificates and SC/ST/persons with disability certificate,

wherever applicable, so as to reach the University on or before

08.06.2008. The 25.06.2008 the petitioner responded to the aforesaid

communication by depositing the fee of Rs.1,48,500/- and he informed

the respondent that he had secured compartment in Chemistry Theory

paper for which the results are likely to be declared some time around

10.08.2008.

7. The respondent refunded the amount deposited by the

petitioner on and around 17.07.2008 by stating that since the

petitioner was not found eligible, the same was being refunded. Since

the respondent has not entertained the petitioner on account of the

aforesaid condition laid down in the communication dated 11.06.2008,

the petitioner has filed this petition wherein the petitioner seeks the

quashing of the condition/clause inserted in the aforesaid

communication dated 11.06.2008 which disqualifies candidates who

have secured a compartment in a subject in the qualifying Examination

2008.

8. The submission of the petitioner is that merely on account

of the fact that a candidate has secured compartment in one subject in

the qualifying examination held in 2008, the candidate cannot be

rendered ineligible and denied admission in case he clears the

compartment examination and the result of the said examination is

available before the scheduled date, on which all candidates are

required to produce their original documents including the marksheet

issued by the CBSE or the concerned Board. Mr. Harish Malhotra,

learned senior counsel for the petitioner submits that in the admission

notice while specifying the eligibility criteria, no such condition was put

that candidates who clear the qualifying examination with

compartment in 2008 would not be eligible. Therefore, it was not open

to the respondent to have introduced an additional condition

subsequently as is contained in the communication dated 11.06.2008.

He submits that the scheme of examination conducted by CBSE itself

provides that a candidate who fails in any one particular paper/subject

while passing in the others is entitled to reappear in the compartment

examination with a view to clear the said subject/paper and it is the

finally compiled result after the compartment examination, which is to

be treated as the result of the candidate. He submits that no other

university such as Guru Gobind Singh Indraprastha University, NALSAR,

Delhi University or even other universities, which subscribe to the

Common Law Admission Test (CLAT) have a similar disability clause for

students who pass the qualifying exam with compartment.

9. Mr. Malhotra further submits that the petitioner is not

seeking any deferment of the admission process, and he states that

the petitioner would produce his compartment result on the scheduled

dates fixed by the respondent for the said purpose, which the

respondents have now admittedly fixed for 22nd/23rd August, 2008. He

submits that in case the petitioner does not produce the compartment

result, or in the compartment result the petitioner does not pass with

the requisite percentage, the petitioner would obviously not press for

being granted admission merely on the basis of his merit position in

the entrance test conducted by the respondent.

10. Mr. Malhotra also relies upon AIR 2004 Uttranchal 34 "Km.

Shilpi Saini v. State of Uttranchal & Ors." and on this basis he

submits that the petitioner's result is presently eclipsed and once the

compartment result is declared, the eclipse would be over and the said

result would take effect. He particularly relies on paragraphs 9 to 11 of

this decision which read as follows:

"9. It is a case where at the time of first counselling the petitioner was not eligible but subsequently having passed her compartment examination, she has become eligible. As held by the Apex Court in the case Dularey Lodh v. IIIrd Addl. District Judge, Kanpur, 1984 All Ren Gas (SC) 82 : AIR 1984 SC 1260, that in such circumstances doctrine of Eclipse will apply. The judgment of the Apex Court in Dularey Lodh case (supra) has also been followed in the case Kailash Sonkar v. Maya Devi, (1984) 2 SCC 91 : AIR 1984 SC

600. In Paragraph 34 doctrine of Eclipse has been discussed. In the case Dularey Lodh it has been observed as under :

"Once the bar placed by the 1972 Act, is removed, by virtue of the doctrine of eclipse the decree will revive and become at once operative and executable. The Courts below have rightly decided that after the 1976 Amendment Act the decree became legally executable."

10. Applying the aforesaid test once the bar has been removed with regard to the eligibility there should not

be any impediment to appear in the second counselling as entrance test by which the petitioner has derived right to get admission in the same. It has been shown on her score card as under: -

'X-State/Category, Rank is provisional subject to verification of documents at the time of counselling.' Therefore, she cannot be deprived from admission on account of mere technicalities as it is a well known fact that one has to put hard labour in participating in entrance test and once the petitioner was covered under the eligibility criteria the technicalities should not come in her way."

11. On the other hand Mr. Rajiv Bansal, learned counsel for the

respondent submits that since the respondents are starting the

aforesaid 5 year B.A. LL.B. (Hons.) Programme for the first time in the

current academic session, the entire process has already got delayed.

He submits that institutions imparting law degrees all over the country

have commenced their academic session. He submits that the

impugned condition, whereby students who have appeared in the

qualifying 10+2 examination in 2008 and have got compartment have

been made ineligible for grant of admission in the current academic

session, has been laid down with a view to complete the admission

process at the earliest so that no seat in the said programme remains

vacant and the start of the academic session is not delayed. He

submits that it is upto the respondent to lay down its eligibility criteria

and the same cannot be interfered with. He further submits that there

is nothing unreasonable in the impugned condition as laid down by the

respondent.

12. Upon being asked by the Court, he states that the

respondent university has nothing against students with compartment,

who otherwise qualify in the qualifying examination, but if the

respondents were to wait for the result of the compartment

examination, other students who are waiting to take admission and

whose result in the qualifying examination meet the eligibility criteria

would have to wait. He submits that students who have already taken

admission in various other institutions would not be able to seek refund

of their fee in case the respondent is required to wait for the

compartment result of the petitioner to be declared, and they are not

granted admission in the meantime.

13. Admittedly, in the admission notice 2008-2009 issued by

the respondents while laying down the eligibility criteria, the

respondent did not debar any student, who has passed the qualifying

senior secondary school 10+2 examination with compartment, from

seeking admission to the said five year B.A. LL.B. (Hons.)

programme/course. That being the position, in my view it is not open

to the respondent to subsequently alter the eligibility condition so as to

exclude those students who appear in the aforesaid qualifying

examination in the year 2008 and who pass the said examination with

compartment. Pertinently, the impugned condition does not debar all

candidates who have passed senior secondary school 10+2

examination with compartment. It is only those candidates who have

appeared in the said qualifying examination in the year 2008 and have

secured a compartment who are sought to be barred from seeking

admission by the impugned condition contained in the communication

dated 11.06.2008 issued by the respondent. Therefore, students who

have passed the qualifying senior secondary school 10+2 examination

or any other equivalent examination with compartment in any earlier

year are not sought to be altogether excluded from the process of

admission by the respondents.

14. No doubt it is for the respondents to lay down the eligibility

criteria/condition for grant of admission to the aforesaid course and the

Court would not go into the propriety of the same. However, that does

not mean that the Court is precluded from even examining whether

any particular condition is fair and reasonable and whether it suffers

from the vice of arbitrariness or discrimination if a challenge is raised

to the criteria by a candidate. Therefore, it needs examination

whether the impugned condition as laid down in the communication

dated 11.06.2008 is discriminatory or arbitrary as contended by the

petitioner, or reasonable and fair as contended by the respondents.

The only justification given by the respondents to debar

candidates/students, who pass with compartment in the qualifying

senior secondary school 10+2 examination or any equivalent

examination in the year 2008, is that the admission process cannot be

put on hold to await the result of the compartment examination of

such like candidates. This reasoning of the respondent would be

acceptable in respect of those candidates whose compartment

examination results are not declared and available before the date

fixed by the respondent for production of the same. This reasoning of

the respondents, however, does not justify the impugned condition laid

down by the respondent whereby a blanket ban has been put in

respect of all such candidates who have taken the compartment

examination in 2008. Pertinently, even the petitioner does not expect

the respondent to delay or withhold its admission process for the sake

of candidates whose results in the compartment examination are not

declared upto the relevant time, when they are required to produce

the same.

15. The respondents have themselves fixed the date for

production of the marksheets of the qualifying examination by the

candidates as 22nd/23rd August, 2008. This is evident from the

communication dated 26.7.2008 issued by the respondents, a copy

whereof has been produced by the petitioner during the course of

hearing and is not disputed by the respondents. In case by that time

the result of the compartment examination is declared and meets the

eligibility criteria, and the candidate's result in respect of the qualifying

examination made available by the examining board which the

candidate is able to produce before the respondents, there would be

no justification to deny admission to him since he is higher in merit,

and to grant it to another candidate, who is lower in merit. From the

communication dated 11.06.2008 itself it is seen that the mechanism

worked out by the respondents is that candidates/ students higher in

merit were offered "provisional admission" and they were required

to deposit an amount of Rs.1,51,000/- (Rs.1,48,500/- in case of SC/ST

candidates) by way of demand draft with the respondent by

28.06.2008. All the students who deposited the fee/documents, as

desired by the respondents, were informed that they would be required

to present themselves with their parents on the notified date with the

original documents. Students who failed to produce the documents or

fulfill the other requirements forfeited their admission in the

respondent institution. By repeating this process, the respondents

have been able to prepare the list of students who have opted to seek

admission in the law school by depositing fee and the documents

required of them, by granting them provisional admisison.

16. The submission of learned counsel for the respondent that

other eligible students are being denied the right to seek admission

and in case the respondents are made to wait uptil 22nd/23rd August,

2008 to fill up all the seats, it is likely that all the seats may not get

filled up at all, does not appear to be convincing. The purpose of

conducting an entrance examination by the respondents was to select

the most meritorious students in the different categories. It should,

therefore, be the concern of the respondents that merit should be

allowed to prevail inter se amongst the candidates belonging to

different categories. Since the respondents have decided to require

the admitted students to appear with their original documents on

22nd/23rd August, 2008 and till then the admission is only provisional,

and the session is to commence only from 25.08.2008, it is only fair

that the petitioner should be allowed the chance to seek admission in

case he clears the senior secondary school 10+2 qualifying

examination with the requisite percentage by the time that all the

students are required to produce the original documents or at any time

before that.

17. For the aforesaid reasons, I allow this petition and quash

the impugned condition contained in the communication dated

11.06.2008 which reads "if you have passed any subject in the year

2008 after appearing in compartment examination for the said subject,

you will not be eligible for admission irrespective of your merit position

in the entrance examination", subject to the conditions laid down

hereunder.

18. By the order dated 25.07.2008, the respondents were

directed to keep one seat reserved for the petitioner. The same shall

be kept reserved for the petitioner upto 23.08.2008 unless, upon the

earlier declaration of the compartment result of the petitioner in the

qualifying examination i.e. senior secondary school 10+2 examination

it becomes clear that the petitioner has not qualified in the said

examination with the requisite 50% marks in the aggregate, or in the

event the petitioner fails to comply with the condition No.1 laid down

hereunder.

19. I allow this petition, however, subject to the following

conditions:

1. The petitioner shall deposit by 14.08.2008 the amount of

Rs.1,48,500/- with the respondent by demand draft drawn in

favour of the Registrar, National Law School, Delhi, drawn on

Uco Bank or any other nationalized bank payable at Delhi

alongwith attested copies of the class 10 and class 12 mark

statements (as presently available), date of birth, category

certificates and SC certificates for advance verification by

the respondents.

2. The petitioner shall produce before the respondents at the

earliest the result of the qualifying 10+2 senior secondary

school examination soon after its declaration and in any

event not later than 23rd August, 2008. In case the

petitioner produces the aforesaid result and passes the

qualifying examination with the requisite percentage of

marks, the respondents shall grant admission to the

petitioner against the seat reserved for him under the orders

of the Court.

3. In case the petitioner is not in a position to produce the

result of the qualifying 10+2 senior secondary school

examination by 23rd August, 2008, or in case he does not

secure at least 50% of the total marks in the said qualifying

examination, the respondents shall be free to fill up the

aforesaid seat in the SC category.

4. It shall be open to the respondents to keep the next eligible

SC candidate lower in merit than the petitioner informed of

the possibility of the seat reserved for the petitioner falling

vacant so that he/she may appear to seek admission along

with requisite fee and documents in the eventuality of the

petitioner not qualifying with the requisite marks in the

qualifying examination by 23.08.2008.

5. In case the petitioner fails to qualify in the qualifying

examination by 23.08.2008 and the seat reserved for the

petitioner does not get filled up by any other candidate, the

petitioner has agreed to forfeit the deposit of Rs.1,48,500/-

that the petitioner may make by 14.08.2008, as aforesaid.

Petition stands disposed of.