Aditya Institute Of Technology vs Government Of Nct Of Delhi & Ors.
2010 Latest Caselaw 4658 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 6303/2010

%                                        Date of decision: 4th October, 2010

         ADITYA INSTITUTE OF TECHNOLOGY          ..... Petitioner
                      Through: Mr. Aseem Mehrotra, Adv.

                                   Versus

         GOVERNMENT OF NCT OF DELHI & ORS. ... Respondents
                    Through: Mr. N. Waziri, Standing Counsel
                             with Mr. Shoaib Haider, Advocate
                             for GNCTD.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     yes

2.       To be referred to the reporter or not?              yes

3.       Whether the judgment should be reported             yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner Institute, imparting education for Diploma Courses

in Electronics & Communication Engineering, Computer Engineering

and Medical Lab Technology, has filed this writ petition pleading that

for the academic session 2010-11, there are still 6, 6 and 13 seats

respectively vacant in each of the said three courses and seeking a

direction to the respondents to permit the petitioner Institute to fill up the

vacant seats on the basis of the merit list drawn up by the respondents.

2. Notice of writ petition was issued on the basis of the judgments in

Educate India Society Vs. State of Haryana (2004) 13 SCC 701 and

Islamic Academy of Education Vs. State of Karnataka (2004) 13 SCC

704 cited by the counsel for the petitioner Institute and in view of the

time schedule laid down in Mridul Dhar Vs. Union of India (2005) 2

SCC 65, the matter taken up for priority hearing.

3. Though vide order dated 28th September, 2010, the matter was

adjourned on the request of the counsel for the respondents to 7 th

October, 2010 but the counsel for the petitioner Institute mentioned the

matter on 30th September, 2010 again expressing urgency and

whereupon the date was preponed to today.

4. Insofar as the order in Educate India Society (supra) is concerned,

the same is relating to the management quota seats. The counsel for the

petitioner Institute admits that the 25 seats remaining vacant in the

petitioner Institute are not the management quota seats. He however

invites attention to Islamic Academy of Education (supra) in which the

directions were issued for filling up of the management quota as well as

the government quota seats. The counsel for the petitioner Institute has

argued that the seats should not be allowed to go waste and should be

permitted to be filled up. He states that the necessary advertisements

informing candidates as per merit, shall be published by the petitioner

Institute at its own expenses and to make up for the loss of time, the

petitioner Institute will hold special classes. Reliance in this regard is

also placed on the judgment dated 27th November, 1997 of this Court in

CW No.3994/1997 earlier preferred by the petitioner Institute and in

which such directions for holding extra classes were issued. Since the

date of 30th September, 2010 as prescribed by Mridul Dhar (supra) is

over, reliance is placed on the order dated 23 rd September, 2010 of the

Apex Court in SLP No.23830-23832/2010 titled Kerala Pvt. Medical

College Management Association Vs. Noorbina Banu K. whereby the

time for admissions was extended till 25 th October, 2010. It is thus

argued that the Court is empowered to extend the time.

5. The counsel for the respondents though has not had a chance to

file the counter affidavit, has contended that the time schedule prescribed

for admission is over and the academic session for the courses aforesaid

has commenced on 9th August, 2010. It is further informed that the first

session is of thirteen and a half weeks and the examinations of first

session are already over. It is further informed that the State Level

Committee had held four rounds of counselling and in each of the said

rounds, all the seats which were reported to be vacant in the petitioner

Institute, were allotted to students and there was no vacancy. It is stated

that if the students, though allocated to the petitioner Institute have failed

to join and/or have left, the process of admission cannot be elongated

and made an endless exercise. He further informs that the students who

had been allocated the petitioner Institute, have complained/represented

against the petitioner Institute, that it does not have the necessary

infrastructure for the students and for this reason also it is also contended

that the petitioner Institute is not entitled to the relief.

6. It is further informed that out of 25 candidates admitted during the

first round of counselling, 18 candidates after fulfilling the enrolment

formalities and depositing complete tuition fees but after seeing the

pathetic condition of the Institute of the petitioner opted for migration

during the second round of counselling. It is suggested that the

petitioner Institute has itself to blame for the students being not attracted

to it.

7. I have enquired from the counsel for the petitioner Institute

whether the vacant seats are owing to any fault in counselling

attributable to the respondents. The counsel for the petitioner Institute

has fairly stated that it is not so.

8. The question which thus arises is whether an Institute/College

which has failed to attract students in the prescribed admission

procedure, can be permitted to vary the said procedure. In my opinion,

no. The Institute when it is affiliated to the respondent or to any

University is bound by the calendar fixed by the said

respondent/University and cannot be permitted to vary therefrom. If the

same is permitted, the same would put the entire academic calendar to a

naught and interfere in the academic merit. The Supreme Court in

Arvind Kumar Kankane Vs. State of UP AIR 2001 SC 2800 held that if

counselling goes on continuously for a long period it will upset the

course of study. Had the available seats been not filled up for the fault

of the respondents, a case for allowing the Institute/College to admit

students even after the due date may be made out. In such cases, the

fault being not attributable to the Institute/College, it cannot be deprived

of its full strength. However, not so when no defect in the procedure can

be shown.

9. The Full Bench of this Court in Veena Gupta Vs. University of

Delhi AIR 1994 Delhi 108 held that a seat remaining vacant mistakenly

i.e. by not being put to counselling may be put to the waitlisted

candidates even after the last date for admission. A Division Bench of

this Court again in Maharaja Agarsen Institute of Technology Vs.

GGSIP University 116 (2005) DLT 290 held that once the dramatic

performance starts, no one is allowed to enter--similarly counselling for

seats must stop once the courses of study commence; third counselling

was held to be unreasonable in that case. Again in, Miss Sunint Kaur

Vs. GGSIP University ILR (2005) 1 Del 215, this Court held that even if

seats are unfilled that cannot be a ground for making mid-session

admissions.

10. The question of filling up of the vacant seats came up before this

Court in M.I. Hussain Vs. N. Singh 125 (2005) DLT 223 in the context

of choice of stream of subjects. The Division Bench of this Court held

that the seats cannot be ordered to be filled up at the cost of merit and

just because seats may remain vacant, is no reason to fill them up by

admitting non meritorious students. The Supreme Court in Ms. Neelu

Arora Vs. UOI (2003) 3 SCC 366 held that when a detailed scheme has

been framed and the manner in which it has to be worked out is also

indicated therein, merely because a certain number of seats are not filled

up is not a reason enough for adopting one more round of counselling if

there is no scope therefor under the scheme. It was held to be not

advisable to go on altering the scheme as and when seats are found

vacant. In my view, the same logic applies in the present case also.

There is no merit in the writ petition, the same is dismissed.

RAJIV SAHAI ENDLAW (JUDGE) 4th October, 2010 'bs'