Ayesha Chaudhary vs University Of Delhi & Anr
2009 Latest Caselaw 3822 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No.11053/2009

%                        Date of Decision: 17.09.2009

Ayesha Chaudhary                                            .... Petitioner
                        Through Mr.D.R. Nigam, Advocate.

                                  Versus

University of Delhi & Anr                            .... Respondents
                      Through Mr.Maninder Acharya, 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.

*

1. The petitioner seeks a direction to the respondent No.2 to grant

`No Objection Certificate' to her to migrate from respondent no.2 to

Maitreyi College or any other day college.

2. The petitioner is a young girl of 19 years and she took admission

in respondent no.2, evening college, in the course of B.A (Hons)

Economics as she could not get admission in the day college near her

residence at Vasant Kunj, New Delhi and, therefore, she opted for

admission to the evening college.

3. The petitioner asserted that after joining respondent no.2 she

realized that the college does not have proper transport facilities from

outside the college to her residence and after the end of the evening

college which was up to 8 PM, the area gets very deserted and lonely.

4. The petitioner somehow completed her first year and secured 65%

marks in first year B.A (Hons) Economics. The petitioner after passing

first year of B.A (Hons) Economics took admission in the second year

and deposited the requisite fees.

5. According to the petitioner as after the end of the evening college

it was becoming difficult for her to get the conveyance and on account

of number of crimes having taken place near and around the college,

she applied for migration to Maitreyi College, a day college of Delhi

University which is near the place of her residence. The petitioner opted

to migrate to day college on account of her constant fear and her

apprehension about her security. The petitioner contended that Maitreyi

College granted `no objection' certificate for migration of the petitioner.

6. After securing `No Objection Certificate' for admission to Maitreyi

College, Delhi University which is near her residence, the petitioner

approached respondent No.2 on 30th July, 2009 and made a

representation to the principal for grant of `No Objection' for migration

of the petitioner to Maitreyi College. In the representation the petitioner

categorically contended that it gets very late and dark in the evening by

the time classes are over. The petitioner asserted that though the

classes are over by 7 PM, however, at times on account of exigency of

situation she has to stay even beyond 7 PM. After the late hours it gets

dark and road outside the college becomes lonely and deserted

especially in winters and proper transport facilities are also not

available outside the college and, therefore, at times her mother has to

come and pick her up and she also has to wait for long outside the

college gate which is also effecting her health. Petitioner contended that

she is the only child and that too a girl and there is lot of tension at

home regarding her safety and in the circumstances the petitioner

requested the respondent No.2 to issue a `no objection' certificate for

migration of petitioner to Maitreyi College or any other day college.

7. While making request for grant of `no objection' certificate the

petitioner also pointed out the incidents of crime, hooglisim and eve

teasing on the outside road around college and also pointed out an

incident which took place on 30th July, 2009 around 6 PM in which

unknown persons had assaulted two girls. At the time of incident

fortunately for the petitioner, her parents were present and so no

untoward incident had happened with the petitioner and in the

circumstances it was requested that it will be appropriate to issue `no

objection certificate' as the petitioner is very apprehensive about her

safety.

8. Despite the representation made by the petitioner by letters dated

30th July, 2009, her case was not considered necessitating another

letter dated 7th August, 2009 reiterating her request for grant of `no

objection certificate'. The petitioner also brought to the notice of the

principal that she and her father had met the Head of the Economics

department, however, it was communicated to them that college has

passed a resolution taking a policy decision not to allow migration of

any student from the evening college to any other college. The petitioner

also pointed out that though the letter was given to the principal for `no

objection certificate', however, the letter was marked by the principal to

the head of the department who, however, refused to accept the same

on the ground that the power is of the principal to decline or accept the

request for migration of the petitioner. The petitioner also contended

that her father was asked to meet the principal time and again,

however, no decision had been communicated to the petitioner

necessitating filing of the present writ petition on 20th August, 2009.

9. The petitioner also relied on Ordinance IV of University of Delhi

dealing with the cases of migration. Ordinance IV(1)(3)(2) deals with the

migration of the students from one college to other college. The said

ordinance is as under:-

"Ord.IV - Migration

1. (1) A student who has not completed his course of study or having completed his course of study has not appeared at the examination for which he was reading in any other Indian University or in any College under the control of a board of Intermediate Education shall not be admitted to the University except on production of the following documents:

(a) leaving certificate from the Principal of the College or from the Registrar of the University he is leaving.

(b) Certified copies of the report of attendance against his name in the register of students of the University or the College concerned.

(2) Admission of a student to the University in the second academic year of study for a degree examination may only be allowed on the ground that the parent or guardian of the student is residing in or has migrated to Delhi.

(3) In all cases of migration a certificate is required from the Principal of the College to which admission is sought by a student to the effect that he has attended a sufficient number of lectures in the subjects offered by him at this University in the College or the University from which he migrates, so as to enable him to complete the course of study prescribed by the University.

2. Applications for migration from one College of the University to another shall only be entertained by the Principal if forwarded by the Principal of the College from

which migration is sought, and the necessary alteration in the enrolment entries shall only be made in the University Register by the Registrar after obtaining the consent in writing of both Principals.

3. Migration of a student to the University in a Course of Study to the Degree Examination under the Faculty of Technology and Faculty of Medical Sciences shall not be permitted."

10. The petitioner also relied on 156(2009) DLT 13, Anika Jain v.

University of Delhi & Anr to contend that the petitioner is entitled for

`no objection' from the respondent No.2 for her migration from the

evening college to Maitrayi college or any other day college.

11. The learned counsel for the University of Delhi, Ms. Maninder

Acharya has contended that no reply to the show cause notice is to be

filed. The learned counsel, however, on instructions stated that no

college can have a policy not to consider the request for migration from

one candidate and to reject the same only on account of having such

policy.

12. The petition is contested by the respondent No.2 and an affidavit

dated 7th September, 2009 of Dr.V.S.Vidhyarathi, acting principal has

been filed. The respondent no.2 has relied on a decision taken in the

meeting of the staff council stipulating that the council reiterates the

earlier decision that the migration of students from the college should

not be permitted as a general principle, however, in case of extreme

circumstances, migration may be granted. The staff council in its

meeting dated 25th August, 2008 also resolved that the application of

the student for migration should be examined by the concerned

department and its recommendation should be considered by the

principal. The staff council also approved the practice of not granting

the migration as a general principle as it has enabled the college to

retain talent and, therefore, it was decided to continue with the general

principle of not granting migration. The relevant decision of the staff

council in one of its meeting held on 25th August, 2008 is as under:-

"The issue of migration from the college was also taken up. In this context the council reiterated the earlier decision which states that the migration of students from the college should not be permitted as a general principle. However, in case of extreme circumstance, migration may be granted. In such case, the application of the student should be examined by the concerned Department and its recommendation should be considered by the Principal. The members were unanimous in the view that the present practice has enable the college to retain talent. This has had a positive impact on the students as a whole as well as on the teachers. A sufficient number of students performing well has an uplifting impact on others. It was, therefore, decided to continue with the existing practice. In case the students wishing to migrate from another college, they would be required to obtain "no objection" from their college Principal and only then such cases would be entertained.

Item -2: Any other item with the permission of the chair

Members expressed concern over the outsiders roaming in the College. The members requested the Principal to

regulate entry of the students at the gate. The Principal assured that he would take all necessary measures to ensure that outside elements do not enter the College."

13. The respondent No.2 denied that no policy decision has been

taken not to allow any inter college migration. The respondent No.2 also

denied lack of proper transport facilities and buttressed its contention

on the ground that there are total 1235 students out of which 269 are

girl students and since no hostel facilities is available, the students

commute everyday from the college after attending the classes. The plea

of the petitioner that it gets lonely and deserted after evening classes

was also denied on the ground that the respondent No.2 college is

situated between Moti Lal Nehru College (evening) on one side and

South Campus of the University of Delhi which also has a women's

hostel on the other side. The plea of the petitioner about law and order

situation in the vicinity was not accepted.

14. Respondent No.2 further asserted that since the petitioner did not

get admission in any other day college nearby her residence, therefore,

the petitioner was merely bidding her time in the respondent No.2

college till she has got an opportunity to migrate to some other college

of her choice/preference and the reason cited for seeking migration

from the respondent No.2 college are mere excuses in support of her

desire to shift to some other college preferably to a day college. In the

circumstances, it was asserted that no student can be encouraged to

block a seat which in any case is so scarce these days in Delhi. The

hardship caused to the petitioner was alleged to be concocted. Not

issuing the `no objection' certificate has also been justified on the

ground that it will result into deprivation of some other deserving

student from getting admission and resulting in permanent vacancy

during the remaining duration of the course of seats. Denial to issue

`No objection' for the migration is also asserted on the ground that it

will have a demoralizing effect on the staff of such a college and it can

adversely affect its staff student ratio which may also result into job

loss by reduction in staff strength in the former college. The emphasis

was also laid by the respondent No.2 about revision of college timing

from 1.35 PM to 7.05 PM in place of 2.30 PM to 7.55 PM in order to

ensure that the students reach home early. The respondent No.2 also

denied that the law and order situation in the vicinity of respondent

No.2 College is bad. It was rather contended that the law and order

situation in the vicinity is not worse compared to any other area in

Delhi.

15. The `no objection' has also been denied on the ground that the

petitioner could not have approached the principal of Maitreyi College

before seeking no objection certificate from the respondent No.2 College.

It is contended that the real reason for the petitioner to migrate is not

her safety but a ploy to migrate to a day college of her preference/choice

as she could not possibly get admission earlier in the day college. The

respondent No.2 also asserted that the petitioner does not have a right

to get a `no objection' certificate and issuance of no objection certificate

to the petitioner shall have a demoralizing effect on others. The other

allegations made by the petitioner in the petition were also denied.

16. The petitioner filed a rejoinder refuting the averments made on

behalf of the respondent No.2. The petitioner filed the minimum

percentage of marks on which admission to various courses of study

had been offered by different colleges of Delhi University for the

academic year 2008-2009 to contend that she was eligible to get

admission on the basis of her percentage in qualifying examination in

the day colleges of the University. The petitioner pleaded that she did

not get admission in the day college in B.A (Hons) Economics although

she was entitled as the day colleges where she was getting admission

were far from her residence and she is the only daughter of the parents

rather only child of her parents and, therefore, the petitioner did not

take admission in the day colleges which were far from her residence.

The petitioner contended that now since she is getting admission in the

day college near her residence and she has apprehension about her

safety, therefore, her request for grant of `no objection' certificate ought

not to be denied. The petitioner also contended that as a policy the

respondent cannot deny migration to its students. The petitioner

contended that her request has not been considered and has been

denied on account of alleged policy. The petitioner also contended that

her request and the reasons have not been considered by the principal

and the staff council rather `no objection' has been denied without any

justification and non issuance of `no objection' certificate cannot be

justified now on the basis of the reasons disclosed in the counter

affidavit filed on behalf of respondent No.2. The petitioner also pointed

out the contradiction in the meeting of the staff council and the

grounds taken in the counter affidavit. It is also contended that the

reasons decided by the staff council are not borne out from the grounds

disclosed in the counter affidavit. Regarding losing the staff, the

petitioner contended that permanent faculty of the department does not

change with the strength of the students and only the strength of

temporary, adhoc and guest appointees change with the strength of

student intake and, therefore, this cannot be a ground to deny `no

objection' to the petitioner.

17. The arguments were heard on behalf of the counsel for the

petitioner and the respondents and the petition, counter affidavit and

the rejoinder affidavit filed on behalf of the parties and the arguments

filed along with them have also been perused. Considering the

ordinance of respondent No.1 pertaining to migration, it is apparent

that the petitioner does not have a vested right to get a `no objection'

certificate from the respondent No.2 to get migration to other colleges,

however, it cannot be denied that if the petitioner is seeking migration

and has disclosed some reasons, the respondent No.2 college was liable

to consider those reason. Though the respondent No.2 in the counter

affidavit filed before this Court has contended that the petitioner has

cooked up the ground as she was keen to go to a day college and,

therefore, she was bidding and passing her time in the evening classes,

however, the reasons stated in the affidavit are after thought as the

apprehension of the petitioner for migration was not decided and no

reasons for not granting the `no objection' to the petitioner were

communicated to her. In absence of any reasons communicated to the

petitioner pursuant to her request it is apparent that `no objection' to

the migration has been denied on account of decision taken by the staff

council in its meeting dated 25th August, 2008 reiterating the policy of

the college not to grant migration to the students.

18. The Division Bench of this Court in Aman Inchhpuniani v. The

Vice Chancellor, Delhi University, 71 (1998) DLT 202 had considered

the question of migration by the students from one college to other and

had laid down certain guidelines which are as under:-

i. to migrate from one College of the University to another is not a vested right of student. A student may seek migration from one College to another, if there be reasons for doing so. Ordinance IV confers discretionary power on

the Principal of the College from which migration is sought to forward or not to forward a prayer by a student seeking migration. The power is coupled with a duty to act reasonably guided by relevant consideration not by whim or caprice. The welfare of the student and the Institution have both to be kept in view and weighed--if there be conflict between the two;

ii. A student has a right to choose an educational Institution of his choice while seeking an admission, but such right cannot be exercised with the same vigour and vitality while seeking migration;

iii. A request by student seeking migration for reasons relevant and germane to such prayer may not be denied unless the Principal be satisfied of the non-availability of the grounds or be of the opinion that the migration will not be in the interest of the student or the interest of the Institution outweighs the interest of the student. The choice of the student has to be respected by giving due weight; for no sensible student would ordinarily like to leave the Institution which he had chosen to join.

19. On the basis of the relevant ordinance pertaining to migration

and the guidelines laid down by this Court it is apparent that though

the petitioner may not have a vested right to seek migration, however, if

the petitioner had disclosed some reasons for seeking migration, the

respondent No.2 ought to have considered the same and communicated

the reasons for not granting the `no objection' for migration. The

respondent No.2 could not act whimsically and contended that as a

general policy migration is not to be granted in any case unless it is an

extreme case. In order to ascertain whether the migration sought by the

petitioner was a general case or an extreme case, the reasons disclosed

by the petitioner ought to have been considered and decided and

communicated to the petitioner as to why her case is not an extreme

case for migration and cannot be allowed.

20. The plea of the petitioner is that though she was eligible for

admission to day college, however, she did not get admission in day

college near her house though she was getting admission in the far off

colleges and being the only child and a girl, her parents and she opted

to go to a college near her house. It cannot be denied that petitioner is

living in Vasant Kunj and Ram Lal Anand College, respondent No.2 is

near her house. In the circumstances, the plea of the petitioner that she

wanted admission in a college near her house cannot be termed

whimsical or can be doubted in any manner. The petitioner has

apprehension about her safety especially during the evening hours and

when it becomes dark. It cannot be said that the apprehension and fear

of the petitioner is unfounded. Though the respondent No.2 has denied

that the law and order situation is not good, however, it has been

qualified by the statement that the law and order situation is not worse

than in any other area. In the circumstances, the respondent No.2 in a

way has admitted that law and order situation is not normal as it

should be. Therefore, the probability of a person having apprehension

on account of law and order situation cannot be termed whimsical. In

the circumstances, if the petitioner in order to secure herself more,

wants to migrate to a day college near her house, the same cannot be

termed a mere ploy as has been alleged by the respondent No.2 in the

counter affidavit. The staff council in its meeting dated 25th August,

2008 rather augmented the apprehension of the petitioner about law

and order situation as the staff council had expressed its concern over

outsiders roaming in college and had recommended the principal of the

respondent No.2 to regulate the entry of the students at the gate. The

principal had assured that he would take all necessary measures to

ensure that outside elements do not enter the college. Despite such

assurance on 25th August, 2008, according to the petitioner there have

been incidents which have been specifically contended by the petitioner.

In the circumstances, it cannot be held that the apprehensions of the

petitioner are whimsical, ill founded and having no basis. The

respondent No.2 in the facts and circumstances should have considered

the grounds given by the petitioner seeking no objection for migration

from respondent No.2 College to another day college. If one weighs the

apprehension of the petitioner about her safety, they do outweigh the

interest of the college in the facts and circumstances. The alleged loss of

faculty members is also ill founded as the permanent faculty members

are not too lose their jobs on account of decrease number of students

teacher ratio. In any case it has not been shown that a number of

students have migrated which has resulted into decrease of number of

teachers. In case the petitioner is given `no objection' for migration, it

will not necessarily lead to such inference that other students will also

approach the principal for migration. In any case every individual case

has to be considered on its own merit. The apprehension of the college

compared to the apprehension of the petitioner, as has been alleged in

the counter affidavit, are without any basis in the facts and

circumstances.

21. The respondent No.2 has rather not considered the interest of the

college and the interest of the petitioner, as no decision was taken on

the representations of the petitioner and no reasons were

communicated to her. `No objection' certificate to the petitioner has

been declined more as a policy and treating the case of the petitioner as

not an exceptional case. Why the case of the petitioner is not an

exceptional case has not been reasoned. In the circumstances, it has to

be inferred that the decision of the respondent No.2 not to grant no

objection certificate in unreasonable and arbitrary.

22. The learned counsel for the respondent has relied on Chetan Goel

& Ors v. University of Delhi & Anr, 2005 VIII AD (Delhi) 316. A Single

Judge of this Court had rather held that the Courts have uniformly

taken the view that cogent reasons must be given by the student for

seeking migration and the decision taken thereon by the college should

not be capricious, arbitrary or unreasonable relying on Anant Madan v.

University of Delhi, 1999 I AD (Delhi) 249, CWP No.504/1998 titled

G.Girish v. PGDAV College decided on 11th December, 1998; CWP No.

15651/2004 titled Vineeta Sharma v. Satyawati Co-Ed College (Day)

decided on 2nd May, 2005. It was held that the interest of the college

have to be balanced with the interest of the students. Whether the

petitioner had shown cogent and good reasons for migration could be

held only after consideration of the reasons given by the petitioner.

Rather the request of the petitioner has not been entertained on the

basis of the general policy of the respondent No.2 not to grant migration

unless the case is of exceptional nature. The reasons now given by the

respondent No.2 cannot justify the decision already taken not to grant

`no objection' for migration. The Apex Court in case of Mohinder Singh

Gill(supra) in para 8 at page 417 had held as under:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji (AIR 1952 SC

16):

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

23. The request of petitioner to grant `No objection' to migration has

been declined on account of policy of the respondent no.2 not to grant

approval for migration unless it is an exceptional case. The case of the

petitioner has not been considered to be exceptional, however, no

reasons had been given. Lack reasons by the respondent no.2 cannot be

supplemented by the reasons given by the respondent no.2 in the

counter affidavit filed in the present writ petition.

24. In the circumstances, the Court is of the view that the College has

not exercised the discretion by not considering the pleas and

contentions of the petitioner seeking migration to a different College and

has declined the same on the basis of their policy not to grant migration

to any student contrary to Ordinance IV of Delhi University. Since, the

respondent has not exercised the discretion on account of their policy

decision, it will be futile to send the matter back to them for re-

consideration in the right perspective. A single Judge of this Court in

Anika Jain v. University of Delhi and another, 156 (2009) DLT 13 in

similar circumstances where the College as a matter of policy had not

granted migration to student had declined to send the matter back for

re-consideration. It was held that the principal of the College has

already exhibited lack of objectivity and independence in the matter

while refusing the `no-objection' certificate without addressing the pleas

and contentions of the petitioner concerned. In the circumstances, it

will be just and appropriate and in the interest of justice to direct

respondent No.2 to forthwith grant no objection to the petitioner for

migration to Maitreyi College or any other day college.

25. For the foregoing reasons, the writ petition is, therefore, allowed.

The respondent No.2 is directed to issue `No objection certificate' to the

petitioner for her migration from Ram Lal Anand College/respondent

no.2 to Maitreyi College or any other day college in accordance with

ordinance IV of the respondent no.1 forthwith. Considering the facts

and circumstances, the parties are, however, left to bear their own

costs.

Dasti.

September 17, 2009                                   ANIL KUMAR, J.
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