Delhi High Court
Rohan Tomar vs University Of Delhi on 4 September, 2009
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P(C) No.9978/2009
% Date of Decision: 04.09.2009
Rohan Tomar .... Petitioner
Through Mr.Rajeev Bansal, Advocate.
Versus
University of Delhi .... Respondent
Through Mr.Mohinder J.S. Rupal, Advocate for
the respondent No.1.
Mr.Pawan Kumar Aggarwal, Advocate
for the respondent No.2.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in YES
the Digest?
ANIL KUMAR, J. (ORAL)
*
1. The petitioner seeks a direction to the respondent to grant him
admission under the sports quota on the ground that the marks
awarded to him for admission under the sports quota are the same as
that to Sh.Mibom Tako who has been given admission whereas he has
been denied admission though the rules did not provide how to resolve
such a tie.
2. Brief facts to comprehend the disputes raised by the petitioner
are that petitioner passed higher secondary examination from Sardar
Patel Vidyalaya in March, 2009 and applied for admission for B.Com
(Hons) course in Delhi University by filling common admission form.
The petitioner also filed a separate admission form under the sports
quota for admission to Shri Ram College of Commerce, respondent
No.2.
3. The petitioner also submitted registration form for sports trial
2009-2010 with respondent no.2 also known as `SRCC‟. The admission
procedure/guidelines and eligibility for sports trials were detailed in the
registration form. Relevant clause is as under:-
" Admissions under Sports quota shall be made on the
basis of level of competency of candidate in the Sport-
determined only of the candidates who have achieved
distinctions in Sports during the last three years. Trials and
verification of Sports Certificates/Documents. Candidates
must present themselves physically for Verification of
Sports Certificates/Documents."
4. The petitioner contended that he was called for the sports trial on
16th June, 2009 at St.Xavier‟s School in which he participated and a
select list of 7 candidates for football was displayed on 25th June, 2008.
The short listed candidates were called to report on 26th June, 2009 for
personal interview along with the relevant original sports and academic
certificates. For the alleged interview on 26th June, 2009 no marks were
given and only the certificates of the candidates were checked. List for
selection on the basis of sports performance had already been put up
on 25th June, 2009.
5. On the basis of the sports trial, the petitioner was awarded 11.33
points for his performance and 10 points on the basis of his
testimonials. The petitioner was thus awarded 21.33 points. The
petitioner has asserted that another candidate named Sh.Mibom Tako
was also awarded 21.33 points which was apparent from the select list
which was displayed on the notice board on 25th June, 2009. The
grievance of the petitioner is that though the petitioner obtained 21.33
points and Sh.Mibom Tako also obtained 21.33 points, but the
petitioner was placed at serial No.4, whereas Sh.Mibom Tako was
placed at serial No.3 and later on given admission. On 25th June, 2009
there was no criteria to place petitioner below Sh. Mibom Tako.
6. The petitioner has contended that for eventuality that two
candidates scoring equal marks in the sports quota there were no
guideline, norms or rules. Therefore since he also secured 21.33 points
as Sh.Mibom Tako, the respondents ought to have admitted both of
them, however, the respondents have given admission to Sh.Mibom
Tako and the admission has been denied to the petitioner. The learned
counsel for the petitioner contended that cut off percentage is fixed by
the college for admission on the basis of merit in the qualifying
examination and all the students who have marks above the cut off
percentage are admitted even though on account of such admissions,
the number of students admitted far exceed the sanctioned strength of
the students. Petitioner also contended that the performance of the
petitioner in the field trial was better than the performance of Sh.Mibom
Tako, however, he has been given more marks on the basis of
testimonials. In the circumstances, it is also pleaded by the petitioner
that since his performance was better in the field trial which is almost
equivalent to an entrance examination, he should have been preferred
in place of Sh.Mibom Tako and in any case he should have also been
granted admission.
7. The petitioner, therefore, made a representation against not
granting him admission on 27th June, 2009, however, his
representation had not been replied. Another representation was made
by the petitioner through his father on 29th June, 2009 to the Director
of Sports pointing out that in case of such a tie, more weightage should
be given to the performance of the student in the sports trials which are
conducted by the College. The petitioner has also contended that the
respondent should have admitted petitioner even though that would
have led to granting admission to more students than the advertised
seats under the sports quota as for admission on merit on the basis of
qualifying examination all the students above cut off percentage are
admitted far above the sanctioned strength. It is contended that in fact
on some occasions the respondent No.2 college has admitted more
students in number under the sports quota than the declared number
of seats under the sports quota. The petitioner also contended
specifically that during the academic year 2008-09, the seats under the
sports quota were 24, however, for the current academic year 2009-10
the seats under the sports quota have been reduced to 20 although the
sanctioned intake is 551. It is further asserted that with the upper limit
of 5% admission under the sports quota, on the basis of sanctioned
intake can offer up to 28 seats, however, no reason has been disclosed
for not granting admission to the petitioner.
8. The petitioner in the facts and circumstances challenged the
action of the respondents contending inter-alia that placing Sh.Mibom
Tako at serial No.3 and placing the petitioner at serial No.4 on 25th
June, 2009 was without any logical rational and in consonance with the
objective of granting admission under sports quota and without any
authority, reason or rationale and, therefore, the action of the
respondents is totally arbitrary. In the circumstances, it is contended
that treatment given to the petitioner is not fair and is arbitrary and is
in violation of his fundamental rights. Since there are no guidelines,
norms and/or rules for such an eventuality, the respondents are liable
to give admission to the petitioner also and cannot justify their action
on the basis of any other criterion adopted by them later on which is
also an attempt by them to justify their action illegal action in placing
the petitioner below the other candidate having scored the same marks
in the merit list declared on 25th June, 2009. The alleged criteria was
evolved in the sports committee meeting held on 26th June, 2009,
though the sports committee was competent to frame rules or modify
the rules for admission under the sports quota.
9. The petitioner further asserted that the petitioner should have
been given preference over other candidate on the basis of sports trials
which were conducted by the respondent no.2 college. The plea of the
petitioner is that since under the sports quota the admission was based
on the competency level of the candidates, therefore, preference should
have been given to a candidate whose performance was better at the
trials taken by the respondent no.2. The petitioner also contended that
the sports committee which has Principal of the College as its members,
could not have decided any criteria, even if it had powers to do, in
absence of Principal of the College. It is also argued vehemently on
behalf of the petitioner that after the merit list was declared on the
basis of performance on 25th June, 2009, the respondents could not
have devised any other criteria and could not have changed the rules of
the games and has relied on 105 (2003) DLT 65, Bank of Baroda
Employees Union (Regd.) & Others v. Bank of Baroda; (2008) 7 SCC 11,
Himani Malhotra v. High Court of Delhi and 1994 Supp (2) SCC 131,
D.C. Aggarwal v. State Bank of India and others.
10. The writ petition is contested by the respondents. A counter
affidavit was filed on behalf of respondent No.2 college contending inter-
alia that the sports quota provided not more than 5% of total number of
seats separately both in Honours and B.A for first year of the under
graduate courses. The respondent No.2 also relied on rules given in
Information bulletin of 2009 relating to sports quota admission which
are as under:-
"4.7.1 Procedure for admission under Sports Quota
Not more than 5% of the total number of seats
separately both in Honours and B.A (for 1st year of the
Undergraduate Courses) except in Engineering and those
other courses where there is an admission test or where
there are centralized admissions, be offered for admissions
on the basis of sports and co-curricular distinctions.
The admission on the basis of the sports shall be
finalized by each college on the recommendation of a
Committee consisting of the Principal, Director of Physical
Education and some teachers and students associated with
the sports. This committee shall be constituted for the
purpose by the respective colleges.
Dates for filling applications and date for admission
on sports basis shall be notified by the College and
displayed on Notice boards.
The Sports Admission Committee shall
screen/evaluate the applications, hold interviews and trials
on the ground and recommend admission on the basis of
sports, as per Evaluation Chart given below.
All sports certificates must be duly verified by the
Head of the Institution last attended and by the Issuing
Authority. All applications along with sports certificates
may also be sent to the Conveners of the University Sports
Admission Committee who will also scrutinize these
applications.
The sports certificates should be accompanied by a
photograph of the candidate duly attested by the respective
issuing Authority and Head of Institution last attended.
Any student submitting false/forged/fake certificate
will be debarred from admission to any course in any
college for three years. If he/she is admitted, his/her
admission will be cancelled. Such cases will be notified to
all colleges.
The level of competence in sports will be determined
only if the candidate has achieved distinctions in spots
during the last 3 years. Following is the order of preference
for admission in the under graduate courses. Preference
will be given to those sports activities in which Delhi
University Inter-college and Inter-University Competition
are held:-
a. Participated by representing India in any event/game at the
International level (Certificate to be submitted from the
Ministry of Sports/Sports Federations).
b. Participated in any event/game in Junior National
Championship (Certificate to be submitted from the
National Federation of concerned game/s).
c. Participated in the Winner/Runner-up teams and secured
1st, 2nd or 3rd position in individual even in National School
Game/s (Certificate to be submitted from the National
School Games Federation/Directorate of Education of the
concerned State).
d. Participated in the All India Rural Sports and Women
Sports Festival securing 1st, 2nd or 3rd position in individual
even or a team (Certificate to be submitted from National
Institute of Sports).
e. Participated and secured 1st, 2nd or 3rd position in Inter
Zonal Tournament or 1st,2nd and 3rd position in Individual
Even (Certificate to be submitted from Director of
Education of the concerned State).
Note: the level of competition in case of Sainik School,
Kendriya Vidyalaya and Public School may be considered
along with the last category i.e (e) Participated and secured
1st, 2nd or 3rd position in Inter-Zonal Tournaments or 1st,
2nd or 3rd position in individual Events.
Regarding Extra-curricular activities, it is for the
college concerned to decide.
A merit list of the students selected for admission to
various courses on the basis of sports should be duly
displayed on the College Notice Board. All admissions on
the basis of sports must be completed by 16th July, 2008.
The list of students admitted on the basis of
sports should also be endorsed to the Convenor,
University Sports Admission Committee.
Proper record of the candidates admitted under this
category shall be maintained by the College so that the
same is readily available, if required by the University.
The applicant as per his/her age must be eligible to
participate in Inter-Varsity Competitions during the next
two years and should not be employed Part-time/Full-time
anywhere.
A committee at the University level has been set
up to scrutinize and supervise all admissions made on
sports basis in Colleges and to look into my complaint.
"UNIVERSITY OF DELHI"
Evaluation Chart for Sports Men/Women to prepare merit on the
basis of Sports Certificates
Under-Graduate Course
A B C D E
Representation Participation in Participation Participation in Participation
of India in the Junior in National All India Rural in the Inter-
International National School Sports/Women Zonal
Meet during last Championships Games Festival during Tournament
three years during last during last last three years during last
three years three years three years
1st 13 1st 10 1st 7 1st 4 1st 1
2nd 14 2nd 11 2nd 8 2nd 5 2nd 2
3rd 15 3rd 12 3rd 9 3rd 6 3rd 3
11. The respondent no.2 admitted that there was a tie between the
petitioner and Sh.Mibom Tako. The respondent No.2, however,
contended that the sports committee in its meeting held on 26th June,
2009 decided that the question of tie has to be decided on the basis of
marks obtained by two students namely Sh.Mibom Tako and petitioner
on the basis of 12th class examination passed by them. It is contended
that Sh.Mibom Tako had obtained more marks than the petitioner and,
therefore, he was preferred for admission under the sports quota.
12. The respondent No.2 also contended that it sought a clarification
from Delhi University/respondent No.1 and a clarification dated 3rd
July, 2009 was sent by the University. The clarification sent by the
University dated 3rd July, 2009 is as under:-
"Please refer to your letter No.SRCC/PO/23/264
dated July 2, 2009.
In this regard I would like to state that the Sports
Council and the University have no guidelines laid down for
breaking the tie in sports cases. The college may use its
direction. However, if sufficient number of seats are
available both the candidates may be considered
without putting to disadvantage any other candidate in
the sports category."
13. The respondent No.2 contended that though the University had
clarified that if the seats are available both the candidates may be
considered without putting to disadvantage any other candidate in the
sports category, however, sports committee of the college in its meeting
held on 9th July, 2009 reiterated the decision taken on 26th June, 2009
and it was maintained that Sh.Mibom Tako be admitted under the
sports quota. However, the sports committee modified the criteria for
breaking the tie and held that instead of taking all marks in the
qualifying examination, marks in best of four subjects including a
language be considered for such an eventuality and this criteria be also
used in future. The principal of the college was not present in this
meeting of the sports committee also. It was contended that the
decision was taken in view of the limited number of seats available for
admission under the sports quota in the discipline of football. It is
contended that the decision taken by the committee is bonafide and not
assailable under Article 226 of the Constitution of India.
14. The college later on filed additional affidavit giving details of
intake of students in 2009-2010; 2008-2009 and 2007-2008 which far
exceeds the sanctioned intake. The additional affidavit did not disclose
as to how the admission of students could far exceeds the sanctioned
intake. The college did not disclose as to what is the power of the sports
committee and how the sports committee could take decision and
modify the rules for admission under the sports committee and how the
alleged sports committee could take decision in absence of the Principal
of the College who is an integral part of the committee. The affidavits
filed by the college did not disclose on what basis in the merit list put
up on the notice board on 25th June, 2009, the petitioner was put below
the other candidate Mr. Mibom Tako, though both of them had scored
same marks.
15. The respondent no.1 has also opposed contention that the
University of Delhi is constituted under the Act of Parliament and
Academic Council is one of the bodies of the University which in its
meeting dated 17th May, 1987 had laid down the procedure for
admission on the basis of sports in colleges. It was held that not more
than 5% of the total number of seats, separately in Hons and Pass
Course be offered for admission on the basis of sports and other co-
curricular activities. Regarding respondent no.2 it has been admitted
that the total seats are 551 and 5% of 551 shall be 27.55 and therefore
the respondent no.1 has contended that the maximum seats which can
be filled in sports category are 27. It is also contended that the seats for
discipline of Football are 3.
16. The respondent no.1 also pleaded that the Sports committee of
the college comprised of Principal, Director of Education, some teachers
and students, however, exact constitution of sports committee has not
been given by the respondent no.1. The respondent no.1 contended that
the decision of the sports committee to admit a student in case of tie on
the basis of performance in qualifying examination was considered by
all the concerned authorities including the Vice Chancellor and that
decision has been approved and therefore, the admission cannot be
given to the petitioner and therefore, the writ petition to be dismissed.
The respondent no.1 has also given the constitution of academic
council. It is contended that there is no illegality in the decision taken
not to admit the petitioner and in case of academic matters the Courts
are refrained from interference with the matters and there is no
illegality in the decision not to admit the petitioner. The respondent
no.1, however, sought to withdraw an admission made regarding the
number of seats in the sports quota deposed categorically by the Acting
Vice Chancellor in its affidavit by contending that the number of seats
shall be only 20 on the basis of sanctioned strength of 405 and filed an
application for withdrawal of statement made on oath and substitute
the same by another affidavit. The application of the respondent no.1
was dismissed and the respondent no.1 was not allowed to withdraw a
statement made on oath. Learned counsel or the respondent no.1 also
relied on AIR 1987 Supreme Court 1154, Narender Bahadur Singh and
others v. Gorakhpur University and another and (2001) 8 SCC 427,
Medical Council of India v. Sarang and others and also relied on
Mumtaz Post Graduate Degree College Vs Vice Chancellor, (2009) 4 SCC
516 and Dr. Reema Chawla Vs University of Delhi, (104) (2003) DLT
17. The learned counsel for the parties have been heard at length and
writ petition, counter affidavits and documents filed and relied on by
the parties have been perused by this Court. Admittedly the petitioner
and the candidate placed 3rd in the select list, who has been given
admission, had scored the same points for admission under sports
category by the respondent no.2. Admittedly, the rules relating to
admission on the basis of Sports Quota as provided in Information
Bulletin 2009 contains no provision as to the procedure to be followed
in case of a tie arising between two or more candidates scoring equal
points. However the rules specifically provide that the Sports Admission
Committee should recommend admission on the basis of sports only.
The „Preliminary Application Form for Admission on the Basis of Sports"
issued by the Department of Physical Education of the respondent
college also clearly stipulates that the admissions under sports quota
would be made on the basis of level of competency of candidates in the
sports (Clause 9 of General Instructions to candidates about admission
procedures, guidelines and eligibility). Therefore, it can be safely
inferred that merit in the sports field alone is contemplated as the
criteria for admitting a student under the sports category. If that be so,
then in the event of there being a tie between two candidates for a seat
under the sports quota in a particular discipline, the criteria to be
adopted for giving preference to one candidate over the others for
admission under the sports quota should also bear some nexus with
the level of competency of the candidates in the sports only and not any
other criteria unless no criteria pertaining to sports can be carved out
or adopted for resolving such a situation. After all the purpose of having
a sports quota for admission to academic institutions is to promote and
motivate excellence in sports so that the candidates admitted under
sports quota would bring academic laurels to college.
18. The respondent no.2 has filed a copy of the minutes of the sports
committee meeting dated 26th June, 2009, which shows that it
comprised of five persons. From the minutes it is clear that the
Principal of the respondent no.2 did not attended that crucial meeting.
This fact has not been disclosed in the affidavit of the respondent no.2.
The respondent no.1 has also proceeded in considering the decision of
the sports committee on the premise that the principal of the college
was present in the sports committee meeting dated 26th June, 2009 as
the respondent no.1 has filed the affidavit through its acting registrar
deposing that the principal of the college was a part of the sports
committee and so he must be present. The point for consideration is
that in field trials the petitioner was given 11.33 marks and Mibom
Tako was given 10.33 marks. The petitioner was given 10 marks for
performance in the past on the basis of testimonials whereas the Mibom
Tako was given 11 marks on the basis of testimonials and both were
given 21.33 marks prior to 26th June, 2009, when the alleged sports
committee meeting had taken place fixing the criteria to take the
performance in the qualifying examination to resolve the tie. Though
this criteria according to the respondents was fixed on 26th June, 2009,
however, annexure P-2, the merit list was put up by the respondent
no.2 prior to 26th June, 2009. If the merit list had been finalized and
put on the notice board prior to 26th June, 2009, then how the
petitioner had already been put at serial no.4, whereas Mibom Tako was
placed at serial no.3 higher to the petitioner has not been explained in
the counter affidavits filed by the respondents. Annexure P-2 shows
that it was issued prior to 26th June, 2009 as it directed these two
candidates who had already been placed at merit no.3 and 4 to report
on 26th June, 2009. If the decision to place them in merit list according
to their performance in the qualifying examination was taken on 26th
June, 2009, then how the petitioner was placed below the other
candidate scoring same marks in sports trial. It appears that the
respondents first decided to place at higher ranking the other candidate
in preference to the petitioner and placed the petitioner below him and
thereafter, a criteria had been evolved to justify their illegality and
irregularity. Unfortunately this has been ignored by the Principal of the
College and other authorities of the University including the Vice
Chancellor and this irregularity is sought to be justified vehemently by
the counsel for the respondents on the ground that the Courts should
not and could not interfere in the academic matters.
19. Learned counsel for the University rather contended that the
final list for selection of the candidate was put up on 27th June, 2009
and the list relied on by the petitioner which is filed as annexure P-2 is
not the final list. This is contended by the counsel for the respondent
No.1 to counter the allegation that the decision was taken first without
any rule or rational to place the petitioner below the other candidate
who had scored the same marks and giving admission to him and
denying admission to the petitioner on the basis of their merit in the
sports quota, and later on justifying the decision on 26th June, 2009 on
the basis of alleged deliberations of the Sports Committee which
deliberations were also in absence of the Principal of the College. The
general instructions to candidate about admission procedure, guideline
and eligibility for sports trials categorically stipulates that list of short
listed candidates on the basis of the sports certificate and sports trial
shall be notified on the college notice board on 25th June, 2009. The
list was put on 25th June, 2009. Learned counsel relied on the
verification procedure of the sports certificates to contend that the list
was finalized later on which was put up on 27th June, 2009, a copy of
which was produced by the respondent No.2. No doubt, a list was also
put up on 27th June, 2009 after checking the certificates of the
candidates, however, the grading of the candidates had already been
done on 25th June, 2009. In the circumstances, it is apparent that
arbitrarily petitioner was put below the other candidate although he
had scored the same marks in the sports quota and later on this
arbitrary decision has been justified by the respondents.
20. This cannot be disputed by the respondents that admission in the
sports category is a class in itself different from admission on the basis
of performance in the qualifying examination. In this category,
admission on the basis of performance in sports, a candidate requires
only 45% marks in the qualifying examination. No weightage is to be
given for better performance in the qualifying examination under rules,
while admitting a candidate in sports quota. Had that been the
intention, besides the marks/points for past performance in the sports
and marks/points awarded to the candidates in the field trials, the
respondents would have kept few marks/points also on the basis of
performance in the qualifying examination. Perusal of General
instructions regarding admissions under the sports quota reveals
unequivocally that the admission has to be based only on performance
in field trials and on the basis of previous sports performance of the
candidates which is determined on the basis of their testimonials.
Admission in sports quota is different from the general admission, can
also be inferred from the fact that the migration of students admitted in
sports quota is not permissible whereas the migration of other students
is permissible. If the criteria for admission under the sports quota
under rules is not based on the performance in qualifying examination,
then could the sports committee introduce such a criteria?
21. This is not disputed that the rules for sports quota which are
stipulated as clause 4.7 in bulletin of information was not framed by
the Sports Committee. If the criteria for admission under the sports
quota was not decided by the Sports Committee then how that criteria
could be changed or in case of tie how another criteria could be adopted
by the Sports Committee, which committee was also not according to
the constituted Sports Committee, as the Principal of the College had
not been present, has not been explained by the respondents. The
official of the respondent no.1 including the Vice Chancellor in an
utterly arbitrary manner has proceeded on the assumption that the
Principal of the College was present in the meeting of the sports
committee which is apparent from the affidavit filed by the acting
registrar of the University. No rules and regulations or guidelines about
the functioning of the sports committee have been produced nor any
circular have been produced to show that the sports committee could
take such decisions. If the absence of the Principal from the meeting of
sports committee is not material, then a sports committee comprising of
any teachers and students, shall be entitled to take any decision which
will perhaps be accepted by the Principal and all the authorities of the
University. Such important and relevant decisions cannot be allowed to
be taken in such casual manner in the facts and circumstances and
what is surprising is that highest authorities in the University has not
bothered to consider the implication of this and has mindlessly
approved the decision of sports committee which has taken the decision
without any rational and changed it in the subsequent meeting, as in
the first meeting on 26th June, 2009 it was decided that all the marks of
the qualifying examinations shall be the criteria, however, in the
subsequent meeting on 9th July, 2009, it was decided that best of four
subject marks in qualifying examination should be the criteria which
should include one subject of language for admission in the sports
category in case of a tie.
22. The criteria for admission in the sports quota is performance on
the basis of testimonials and performance in sports trials conducted by
the respondent no.2/college. Then in case of tie, why one of these
criteria could not be adopted, i.e., either performance in the
testimonials or performance on the basis of field trials, has not been
explained by either of the respondents. Rather what is stated is that the
Sport Committee, without the Principal of the College in the said
meeting, decided on 9th July, 2009 that taking one of the sports
component to break up the tie will be prejudicial. Neither the sports
committee has elaborated as to why it will be prejudicial nor the
respondents in their counter affidavits have given any rational for
alleged prejudice nor any rational reason has been given for the same.
If the sports category is a class in itself where the requirement for
qualifying examination was only 45%, then how the performance in the
examination could be a criterion, has not been explained by the
respondents. Unfortunately some teachers of the college and perhaps
some students in the name of `sports committee‟ justified the placement
of petitioner in the merit list below the other candidate with same
marks/points which has been approved by everyone without giving any
rational at any level. Even in the counter affidavits filed on behalf of the
respondents any rational is given except that the Courts do not have to
interfere in the academic matters.
23. Utter casualness on the part of academic authorities, emboldened
by the law laid down by the Courts that ordinarily the Courts should
not interfere with the academic matters, is apparent in this case. The
complaints regarding admission in the sports quota are to be
considered by the Committee of sports of the University. A complaint
was made by the father of the petitioner to said committee. The said
committee instead of deciding it, forwarded it to the alleged `sports
committee‟ comprising of some teachers and students without the
principal of the College, which decided on 9th July, 2009 that taking any
component of sports performance to resolve the tie will be prejudicial
and laid down a new criteria of resolving the tie to take qualifying
examination performance in the best of four subjects including one of
the language. How the sports committee of the University could delegate
its work and function to the alleged sports committee of the college
without Principal and under what guidelines or regulations or circular?
The affidavits filed on behalf of the University of Delhi are silent on
these material controversies. Confronted with these situations the
learned counsel for the respondent No.1/University has also raised a
strange argument that he is representing the Director of Sports and not
the University of Delhi. Learned counsel, however, could not explain as
to how the Director of Sports has to be sued independently of the
University or since the University has been sued as respondent No.1,
how he can contend that he is not representing the University of Delhi
as in reply to the show cause notice, the reply affidavits have been filed
by Shri S.K. Jaipuriayar, Acting Registrar, University of Delhi. The
contention of the learned counsel for the respondent No.1 is utterly
illogical devoid of any legal rational. The officials of the University are
to be sued through the University and not individually and the
University has to defend the cases filed against it through the Registrar.
Learned counsel for respondent No.1 raised yet another strange plea
that the committee at the University level which deals with the
complaints of admission in sports quota has not been impleaded to
whom the representation was made by and on behalf of the petitioner
as only the Director of Sports has been sued who is only a member of
the Committee at the University level and not the Committee itself. The
argument is devoid of any legal rational. The grievance of the petitioner
is that a representation was made to the Committee to resolve the tie
between the petitioner and the other candidate who scored the same
marks which should have been considered and this should have been
resolved on the basis of the performance in the field trial. The said
Committee instead of deciding the representation made to it forwarded
it, strangely, to the Sports Committee of the college which decided it on
9th July, 2009 in the absence of the Principal of the college that
adopting any of the two components of performance in the sports for
admission under sports quota will be prejudicial. If the power was
given to the Committee at the University Level to look into the
complaints, how the same could be delegated by that Committee to the
alleged Sport Committee of the College has not been explained rather
illogical submissions have been made.
24. In D.C. Aggarwal (supra) relied on by the petitioner, the case of an
employee was considered by a review committee for extension of his
services up to the age of 60 years. The committee did not find him
suitable and the recommendation of the committee was accepted by the
appropriate authority. Appeal filed by the petitioner was dismissed.
While challenging the order of the Appellate Authority, it was contended
that the constitution of the committee was not proper inasmuch as the
committee was constituted of persons other than those who were
entitled to look into the matters of extension of service of officers of the
category to which the appellant belonged. The Supreme Court while
considering the case of the petitioner had held that the extension of
service of an employee had to be decided objectively on material on
record and in the case of the petitioner, the matter of extension had to
be considered by a committee consisting of Managing Director and
certain Deputy Managing Director, however, none of them were
members of the committee. The final authority which had to pass the
order under the rules was not the committee but a different person
higher in rank than the member who constituted the committee,
whereas the review committee was only a recommending body. The
final order had to be passed by the competent authority on
recommendation of the committee. It was stated that such officer is
always higher in rank than the Deputy Managing Director, however, the
final order had been passed by a person who was a member of the
review committee. This was held to be in gross violation of the
procedure and the guidelines and violative of fair play. The Supreme
Court had held that the review committee was only a recommendatory
body and the final order was to be passed by the competent authority
which was not done though the appellate authority had examined the
record but since the appellate authority did not apply its mind to this
aspect which was basic and fundamental, therefore, the decision taken
was held to be vitiated by violating the rules and guidelines provided for
extension of service. In the case of petitioner, nothing has been
produced to show as to what is the scope of the power of the Sports
Committee. Even the Sports Committee is to be comprised of, as has
been contended by the respondent No.2/college itself, of Principal and
Director of Education, some teachers and students, however, from the
minutes of the Sports Committee dated 26th June, 2009, it is apparent
that the Principal of the college/respondent No.2 had not participated
in the deliberation of the committee which had decided about the
criteria for admission of the students in the sports category in the case
of tie. Learned counsel for the University has raised another strange
plea that the meeting of 26th June, 2009 was of `sports admission‟ and
not of Sports Committee. However, the said statement is also without
and consequence as it has not been denied that the Sports Committee
meeting was held on 26th June, 2009. This is rather reflective of how
casually the minutes of the `Sports Committee‟ are recorded and signed
which are relied on by all the authorities of University. The affidavits
have been filed on behalf of the University of Delhi in this case without
considering the relevant record. Thereafter application was filed to
withdraw the deposition. The depositions are not the pleadings. If
something is stated on affidavit which is not correct, then with the
permission of the Court another affidavit can be filed explaining the
mistake, but an application cannot be filed seeking to completely
withdraw the earlier deposition and to substitute it with entirely new
deposition. Strangely pleas has been raised by the Counsel for the
University which do not find any mention nor which have been dealt
with in the affidavits filed on behalf of the respondents. The counsels for
the respondents cannot be allowed to raise pleas and contentions which
have not been taken specifically in the counter affidavits filed on behalf
of the respondents. The Supreme Court in New Delhi Municipal
Committee v. State of Punjab, AIR 1997 SC 2847 had held that for
additional points not taken in the writ petition, the opposite party
should have been put to the notice to comply with the principles of
natural justice. The respondents in the facts and circumstances cannot
be allowed to take such pleas which have not been taken on their behalf
in the counter affidavits, including the pleas that the petition is bad for
non joinder of Mibom Tako, other candidate, and for non joinder of
sports committee of the University.
25. How the sport committee could lay down the norms for admission
and in absence of the principal of the college who is the essential
members of the Sports Committee, how the decision is valid and
binding has not been explained either by the counsel for the college or
by the counsel for the University. Why the criterion was changed from
the entire marks to the best of four subject has not been explained.
Despite the matter being adjourned from time to time, the respondents
have not produced or showed as to what were the marks of candidate,
Mr.Mibom Tako, in the 12th class and his marks in best of four
subjects.
26. If the merit list of the sports category had been put up on 25th
June, 2009 putting petitioner below another candidate though both of
them had scored same marks, then could the criteria be changed later
on. In Himani Malhotra (supra), the minimum marks for selection in
viva voce were not prescribed before the commencement of selection
process, however, the minimum marks criteria for viva voce for selection
was introduced during the process of selection and in the
circumstances the Supreme Court had held that the authority making
rules regulating the selection can prescribed all rules, the minimum
marks both for written examination and viva voce, but if minimum
marks are not prescribed for viva voce before commencement of the
selection process, the authority concerned, cannot either during the
selection process or after the selection process, add an additional
requirement/qualification that the candidate should also secure
minimum marks in the interview. In Himani Malhotra (supra) relied on
by the petitioner, the minimum marks for selection in viva voce was not
prescribed before the commencement of selection process. The
minimum marks criteria for viva voce for selection was introduced
during the process of selection and in the circumstances the Supreme
Court had held that the authority making rules regulating the selection
can prescribed all rules, even the minimum marks both for written
examination and viva voce, but if minimum marks are not prescribed
for viva voce before commencement of the selection process, the
authority concerned, cannot either during the selection process or after
the selection process, add an additional requirement/qualification that
the candidate should also secure minimum marks in the interview.
27. From the affidavit filed by the respondent no.1 it is apparent that
admission in sports quota is given since 1987, when the academic
Council decided to have not more than 5% admission in the sports
quota. Surprisingly the college authorities did not visualize a situation
of the two candidates obtaining same marks on the basis of their
previous performance and the field trials. If the authorities could not
visualize such a situation, then they should have thought of some
criteria based on previous or present performance of the candidate in
the field of sports to resolve the tie. It is not that it was not suggested to
them. The father of the petitioner in his representation dated 29th June,
2009 suggested to take the performance in the field trial to resolve such
a tie. Unfortunately none of the representations were considered and/or
replied by the respondents. Even in the counter affidavits filed by the
respondents, there is not a whisper as to why performance in the past
based on the testimonials of the candidates or the performance of the
candidate in the field trials, could not be a yardstick to resolve such a
tie. Genesis of this, perhaps, is the belief of some of the academic
authorities that they can do no wrong and their decisions are not to be
interfered by the Courts in any circumstances, as has been emphasized
by both the counsels. This is apparent from the fact that without any
criteria prior to 26th June, 2009, the petitioner was placed below the
other candidate who had also scored the same marks, and thereafter,
justification has been given for the same which has been blindly upheld
by the Principal of the college and the authorities at university
including the Vice Chancellor. The attitude of the college and university
authorities become more questionable in view of the suggestion of the
Dean of Students Welfare suggesting to admit both the students. The
sports committee in its meeting dated 9th July, 2009 mechanically
reiterated its decision dated 26th June, 2009, however, further modified
the criteria for admission in the sports category from the total marks in
the qualifying examination to best of four subjects marks in the
qualifying examination and one of the subjects should be language also.
Though the committee noted that it would be prejudicial to use one of
the two components of the sports marks to prefer one candidate over
the other, but why, it has not been explained either by the sports
committee or by both the respondents in the various orders passed by
them subsequently and even in the counter affidavits filed by them.
From these facts it is inevitable to infer that the decision was taken to
admit Mibom Tako for whatsoever reason, which are known to the
college authorities, which decision has been persistently justified by the
authorities in the most arbitrary manner.
28. The persistence to deny admission to equally meritorious
petitioner at any cost is also apparent from the fact that though the
Dean of the students welfare on behalf of the University had suggested
to give admission to the petitioner also, which has been denied and not
accepted on the grounds that the sports quota seat cannot be
increased. According to respondents the admission on the sports quota
cannot be more than 5%. There are 551 seats and according to their
own formula not more than 27 candidates can be admitted under the
sports category. The petitioner has categorically averred that only 20
seats had been earmarked for the sports quota for the year 2009-2010
whereas for previous year this number was 24. The fact had not been
denied by the college and the University in the counter affidavits filed
before this Court till the additional affidavits were filed. This cannot
could not been denied that out of 20 seats, three seats are for
admission in the sports quota for football. If there can be 27 seats for
the sports category, and if out of 20 seats, three seats are for football,
then out of 27 seats, even according to the allegations of the
respondents, there can be four seats for admission in the category of
football. No reason has been given by both the authorities either in their
orders passed from time to time and produced before this Court
including the decision taken by the sports committee and even in the
counter affidavits filed on their behalf as to why there could not be four
seats for sports quota in football.
29. Later on the plea of the respondents not to give the admission to
the petitioner became that the intake of the students in the College is
fixed especially in the sports quota and, therefore, another seat cannot
be created and the petitioner cannot be accommodated despite the fact
that in the sports quota he has scored the same marks as another
candidate who has been given the admission whereas the petitioner has
been denied the admission.
30. The petitioner had categorically contended that the sports quota
had to be computed on the basis of total number of seats and in 2008-
2009 the sanctioned intake was 551, therefore, considering the alleged
upper limit of 5%, the total seats would be 27 and as the college had
notified only 20 seats. Since three seats out of 20 seats are for Football,
therefore, considering that there are 27 seats on the basis of 5% of 551,
therefore, out of 27 there can easily be four seats in the discipline of
Football. These facts were categorically pleaded by the petitioner in
paragraphs 15 and 16 of the petition, however, the College filed a
counter affidavit dated 18th July, 2009 and these facts were not denied.
Even the University filed a short counter affidavit admitting that quota
for sports and extra co-curricular activities at 5% of 551 seats come to
27 seats as per Resolution adopted by Academic Council dated 17th
May, 1987. This affidavit was sworn by Shri S.K.Jaipuriyar, Acting
Registrar of University of Delhi. This affidavit was duly sworn and
verified stipulating that the contents of the affidavit are true and correct
on the basis of record maintained by the University. Thereafter when it
became apparent that on the basis of 551 seats 5% quota would be 27
seats and the petitioner shall become entitled for admission, an
application was filed for amendment of deposition, i.e., affidavit filed on
behalf of respondent No.1. The application of respondent No.1 being
CM No.10153 of 2009 seeking amendment to the deposition on affidavit
of respondent No.1 to withdraw the admission made by them which
already created certain rights in favor of the petitioner was disallowed
and dismissed by order dated 24th August, 2009. The College also filed
another affidavit relying on the modalities for admission of OBC non
creamy layer candidates to various under-graduate course. A circular
by the Registrar dated 23rd May, 2008 regarding the modalities for
admission of OBC candidates has been field which does not stipulate
that while computing the sports quota of 5%, the seats for OBC
candidate in an institution has not be taken into consideration.
However, another subsequent circular issued by the Office of the Dean
of Student Welfare is relied on by the respondents dated 29th
September, 2008 allegedly stipulating that since the admission for CW,
foreign students and sports quota is not based upon an Act of
Parliament, the number of seats may be frozen at pre-enhanced
number of seats and counted as supernumerary. On the basis of this
circular, it is contended by the respondents that the total sanctioned
intake of the general candidate is 405 and for OBC candidate is 146 for
the year 2009-2010, therefore, the 5% of the sports quota is to be
computed on the basis of 405 seats comprising of General, Scheduled
Caste and Scheduled Tribes candidates. Strangely the Dean of Students
Welfare on whose circular dated 29th September, 2008 reliance has
been placed for denying a seat to the petitioner on the ground that 5%
of the sports quota seats has to be computed only on the basis of the
sanctioned intake of General, SC and ST candidates, had himself
recommended by his communication dated 3rd July, 2009, that both the
candidates, i.e., the candidate Mr.Mibom Tako who has been admitted
and the petitioner be considered without putting to disadvantage any of
them. Since a specific query was raised to the Dean, Students Welfare,
who has recommended that both the students be considered, it is
apparent that he would not have made such a suggestion had he been
certain that on account of his circular dated 29th September, 2008, the
sanctioned intake cannot be increased at all in any circumstances.
31. The respondents‟ counsel, thought greatly emphasized that intake
seats cannot be increased and, therefore, the sports quota of 5% also
cannot be changed, however, pursuant to the directions given by this
court, an additional affidavit dated 31st August, 2009 was filed on
behalf of respondent No.2 as the petitioner in reply to the application of
respondent No.1 for amendment of the counter affidavit, had contended
that the respondent No.2 has admitted more than 700 students against
the sanctioned intake of 551. From the perusal of the additional
affidavit dated 31st August, 2009, it has transpired that without any
approval from the University authorities against the sanctioned intake
of 405 of general, SC and ST candidates, the College has admitted 543
candidates. If the College has admitted 543 candidates in the general
category, then why the sports quota should not be computed on the
basis of the candidates which have been admitted and not on the basis
of the sanctioned intake, has not been explained by the learned counsel
for the respondents. Against a sanctioned intake of 551 candidates
including the OBC candidates, startlingly the College has admitted 749
candidates. The reason for admitting more students than the
sanctioned intake as has been given by the respondent No.2 is that if
after declaring the cut off percentage, there are lot of students having
same marks and there is tie between them, then in order to resolve the
tie, all the students are given admission in the general category, SC and
ST category which increases the number of intake substantially
compared to the sanctioned intake of such candidates, which reason
has not been disclosed by the respondents nor any thing has been filed
to support this plea. If on account of a number of student scoring the
same marks, admission is given to all of them, much beyond the
sanctioned intake, then why in the case of tie in the sports quota the
admission cannot be given beyond the alleged sanctioned intake, has
not been explained and answered by the learned counsel for the
respondents.
32. Perusal of the circular of office of the Dean of Students‟ Welfare
dated 29th September, 2008 also reveals that the discretion has been
given to the College to freeze the seats at pre-enhanced number and it is
not a direction to freeze the seats, as the word used is that number of
seats "may" be frozen at pre-enhanced number of seats. If the circular
on which the respondents rely does not mandate that the seats at a
particular number be necessarily frozen, as the discretion is given to
the college, then how in case of a tie the petitioner should be denied
admission on this plea of sanctioned intake. According to the learned
counsel for the respondents, admission of more than the sanctioned
intake is not restricted to the year 2009-2010. Even in the previous
years, the number of candidates admitted, were far more than the
sanctioned intake. In the circumstances, the action of the respondents
not to admit the petitioner in the course of B.Com (Honours) in the
sports category is highly arbitrary and is contrary to their own norms
and on the basis of the criteria evolved by the alleged Sports Committee
which was also not attended by the Principal of the College, cannot be
sustained.
33. Learned counsel for the respondents No.1/University has also
tried to justify that since the counter affidavits were filed in this case by
the Principal ratifying the decision of the Committee, therefore, the
decision of the Sports Committee cannot be challenged, cannot be
accepted. The plea is an afterthought and not legally sustainable so as
to deny admission to the petitioner in the facts and circumstances. This
plea of ratification has not been taken.
34. A decision is only an authority for what it actually decides. What
is of the essence in a decision is its ratio and not every observation
found therein nor what logically follows from the various observations
made in it. The ratio of any decision must be understood in the
background of the facts of that case. It has been said long time ago that
a case is only an authority for what it actually decides, and not what
logically follows from it. It is well settled that a little difference in facts
or additional facts may make a lot of difference in the precedential value
of a decision. A decision is only an authority for what it actually
decides. What is of the essence in a decision is its ratio and not every
observation found therein nor what logically follows from the various
observations made in it. The ratio of any decision must be understood
in the background of the facts of that case. It is well settled that a little
difference in facts or additional facts may make a lot of difference in the
precedential value of a decision. The ratio of the decision relied on by
the respondents are also not applicable in support of the contentions
raised on behalf of respondents. In Medical Council of India (supra)
relied on by the respondent, it was held that the interference in
academic matters should normally be not done by the courts. The
Supreme Court was dealing with a case where under Regulation 6(5)
which contemplates that a student will pursue 18 months of prescribed
study before appearing for second professional examination at the
transferee medical college, it was held that it should not have been
interpreted to mean that the students could have completed 18 months
of study in both colleges together. The case of the petitioner is
apparently distinguishable as the rule is not being interpreted by this
Court. There is no rule by the respondents to resolve a case where two
students score same marks in sports category. This criterion which
was not there, could not be laid down by the alleged Sports Committee,
as the rules for admission to the sports quota were not made by the
Sports Committee. The Sports Committee has also taken different
stands on different dates and also modified the criteria. The Sports
Committee constituted should have had the Principal and other officials
and teachers and students. In both the crucial meetings, the Principal
was of respondent no.2 was not present. In order to resolve the ties for
general, SC and ST candidate securing the same marks or percentage,
the college admits students much beyond the sanctioned intake,
therefore, in case of tie in the sports quota why a candidate cannot be
admitted beyond the alleged sanctioned intake has not been explained.
Similarly, the case relied on by the respondents, Narender Bahadur
Singh (supra) has no application as it was held that it is the duty of the
University to see that no college affiliated to it shall give admission to
students more than the prescribed number as student so admitted
suffer in the process. If that be so, then how the respondent No.2
college is admitting students much more than the sanctioned intake
and what action has been taken by the respondent no.1 has not been
answered. If the general candidates can be admitted much beyond the
sanctioned intake without any consequences, then how the college or
other students shall suffer in case, where one more student is admitted
in the sports quota has not been explained. If the sports quota is
computed on the basis of actual number of students than there will be
27 sports seats in place of 20 seats on the basis of sanctioned intake
without considering the OBC seats and there will not be any alleged
difficulty which have been created by the respondents in having another
seat in discipline of football. The inevitable conclusion is that the action
of the respondents and their officials in denying admission to the
petitioner in the course of B.Com (Hons) is arbitrary, illegal and in
denial of principles of fair play. Because of the arbitrary acts and
actions on the part of the respondents and imputable to them, the
petitioner has already been denied studies for over two months.
35. Therefore, for the foregoing reasons, the writ petition is allowed.
The respondents are is directed to admit the petitioner in the sports
quota in the Course of B.Com (Hons) in the Sri Ram College of
Commerce forthwith so that the petitioner does not loose his studies
any further. Considering the facts and circumstances, the respondents
are also burdened with costs of Rs.20,000/- each payable to the
petitioner.
Copies of the order be given to the counsel for the parties dasti
under the signatures of the Court Master.
September 04, 2009 ANIL KUMAR, J.
'Dev'
