Isha Wadhawa vs Guru Gobind Singh Indraprastha ...
2010 Latest Caselaw 4802 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 18th October, 2010.

+                           W.P.(C) No.6721/2010
%

ISHA WADHAWA                                                  ..... Petitioners
                            Through:      Mr. Ravi Gupta, Sr. Advocate with
                                          Mr. Gaurav Gupta & Mr. Deepak
                                          Vohra, Advocates

                                       Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS.                             ..... Respondents
                  Through: Mr. Mukul Talwar, Advocate for R-1.
                           Mr. Laliet Kumar, Advocate for R-2.
                           Ms. Aditi Gupta, Advocate for R-3.
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 seeks admission in the second year of B.Tech course

either in the respondent No.2 (Maharaja Agrasen Institute of Technology) or

the respondent No.3 (Surajmal Institute of Technology) both affiliated to the

respondent No.1 University. During the pendency of the petition,

application being CM No.13567/2010 has been filed by five others, also

claiming admission in second year. Though no formal order has been made

allowing impleadment but the counsel for applicants being same as of the

petitioner, the applicants have also been heard. It is inter alia the case of the

petitioner/s that the respondent No.1 University has not put for counselling

all the seats available for admission in the second year. The counsels for the

respondents 2 & 3 appearing on advance notice on 1st October, 2010 when

notice was issued in the petition had stated that there were 30 vacant seats in

the second year in the respondent No.2 Institute and some vacant seats in the

respondent No.3 Institute also.

2. The admission to the second year of B.Tech course is described in the

Admission Brochure as Lateral Entry. The said Lateral Entry is available for

Diploma holders and B.Sc. Graduates. The University in its Admission

Brochure for the academic year 2010-11 advertised 60 & 48 seats as

available for Lateral Entry in the respondent No.2 & 3 Institute respectively.

The position as emerges on completion of pleadings and during hearing is

that the All India Council for Teacher Education (AICTE) in its Approval

Process Handbook has prescribed for such Lateral Entry upto a maximum of

10% of the sanctioned intake. The 60 & 48 seats for Lateral Entry in the

respondents 2 & 3 advertised in the Admission Brochure aforesaid represent

the said 10% of the sanctioned intake in the respondents 2 & 3. However,

AICTE in Clause 70.2 of the Handbook further provides that in addition to

the said 10%, other vacant seats in the second year "may also be available to

Diploma holders and B.Sc. Degree holders for Lateral Entry". A formula

has been prescribed for arriving at the number of vacant seats so available

for Lateral Entry in addition to 10% of the sanctioned intake.

3. During the course of hearing, the counsel for the respondent No.2 has

stated that there is no vacancy in the 10% seats aforesaid for Lateral Entry.

Since the counsel for the respondent No.3 at the time of hearing had no

instructions in this regard, an opportunity was given to file an additional

affidavit in this regard. From the said additional affidavit, it transpires that

there are no vacant seats in the 10% category in the respondent No.3

Institute also.

4. We are thus concerned only with the additional seats, if any, for

Lateral Entry. According to the counsels for both respondents 2 & 3, the

vacant seats in the second year in each of their Institutes are available for

granting admission to Diploma holders and B.Sc. graduates. However, both

admit that the respondent No.1 University in the past also has never been

considering the said seats for admission.

5. The counsel for the University has opposed the petition in so far as

qua the additional seats inter alia on the ground of laches. It is contended

that in the Admission Brochure no provision was made for admission to

additional seats in Lateral Entry and the challenge now is barred by laches.

I find considerable merit in the said contention of the counsel for the

University. Neither the petitioner nor the respondents 2 & 3 who have

supported the petitioner, at any time made grievance that the Admission

Brochure of the University was not providing for all seats available for

Lateral Entry. The petition came up first only on 1 st October, 2010 when the

counselling had ended and academic session begun. The petitioner in the

rejoinder affidavit handed over after the conclusion of hearing has opposed

the argument of laches by contending, firstly that the seats provided in the

Admission Brochure for Lateral Entry were "tentative" and thus the

petitioner had expectation that additional seats also as per availability will be

added and secondly that the "Open House" counselling for vacant seats

though provided in the Admission Brochure was not held. No merit is found

in either contention. In view of the admission that the additional seats were

never in the past also provided for admission in Lateral Entry, there could be

no expectation of the same being made available this year. Had the

University intended to provide for additional seats, it would have been so

stated in the Brochure. The University has also after conclusion of hearing

filed additional affidavit affirming that Open House counselling for 10%

seats in Lateral Entry was held on 16th September, 2010. In the

circumstances, even if finding the University to be bound to provide for

admission for such additional seats and the said additional seats having not

been put to counselling, it is not deemed proper to direct the University to

mid-session make further admissions in the second year.

6. However, since arguments were heard also on whether the respondent

No.1 University can be compelled to make admission for the additional seats

in Lateral Entry, it is deemed expedient to deal with the said aspect for the

next academic year even if not available for the current academic year.

7. Clause 70 in Chapter XII titled „Norms & Requirements‟ of the

Approval Process Handbook of AICTE published in January, 2010 is as

under:

"70. Lateral Entry to second year of Degree courses in Engineering / Technology, Pharmacy, Architecture & Town Planning

70.1 Diploma holders and B.Sc. Degree holders shall be eligible for admission to second year Engineering degree courses up to a maximum of 10% of sanctioned intake, which will be over and above, supernumerary to the approved intake.

Provided that Students who have completed Diploma course in Architectural Assistantship & Town Planning shall be eligible for admission to second year Architecture degree courses up to a maximum of 10% of sanctioned intake, which will be over and above, supernumerary to the approved intake.

Provided further that students who have completed Diploma course in Pharmacy shall be eligible for admission to second year Pharmacy degree courses up to a maximum of 10% of sanctioned intake, which will be over and above, supernumerary to the approved intake.

70.2 In addition to above, vacant seats (S) in a course, S=S1-(SI-C-

F+B), and if S>0, may also be available to Diploma holders and B.Sc Degree holders for lateral entry where,

SI = Sanctioned Intake C* = No. of cancellations at the first year level F* = No. of students not eligible for admission to second year as per rules / rules by affiliating University B* = No. of students who belong to earlier batches who have become eligible for admission to second year as per rules / rules by affiliating University.

*Students admitted against any type of supernumerary seat/s shall not be considered in C, F or B.

70.3 The concerned Admission Authority shall decide modalities for these admissions."

8. The counsel for the University has contended that it is not mandatory

for the University to make available for admission in Lateral Entry the seats

as provided for in Clause 70.2 above. Strong reliance is placed on the word

"may" in Clause 70.2 to contend that it is not mandatory to make the said

seats available and it is in the discretion of the University.

9. The senior counsel for the petitioner on the contrary has urged that the

Approval Process Handbook of AICTE is binding on the University.

Reliance in this regard is placed on judgment dated 30 th June, 2010 of the

Madras High Court in a batch of writ petitions with the lead petition being

W.P.(C) No.3656/2010 titled Srinivasa Institute of Engineering &

Technology Vs. All India Council for Technical Education & Ors.

10. Though I have in judgment dated 13th August, 2010 in W.P.(C)

No.4771/2010 titled Gitarattan Institute of Advanced Studies & Training

Vs. Director, Higher Education held that recognition by AICTE does not

mandate grant of affiliation unless the University is satisfied of fulfillment of

its own parameters but with respect to Lateral Entry, the said question does

not arise. Lateral Entry specially qua additional seats is concerned merely

with filling up of vacant seats in the second year. Such vacancy may arise

owing to the students who had taken admission in the first year not joining,

dropping out, migrating etc. The University having already granted

affiliation for a particular intake of students, cannot be heard to say that it

will not comply with the said direction of the AICTE. I have recently in

judgment dated 18th October, 2010 in WP(C) No.6641/2010 titled Dhruv

Singhal Vs. Guru Gobind Singh Indraprastha University and which

petition in fact was heard with the present petition, held that we are a

country where seats to engineering colleges are at a premium with the

practice of capitation fee being paid therefor being rampant; the seats

available in the Colleges are far below the number of applicants therefor.

Reliance was placed on Charles K. Skaria Vs. Dr. C. Mathew (1980) 2 SCC

752 observing that the Courts must see that no costly seat for advanced

studies in which the community as a whole has stake, is wasted. Reference

can also be made to Ajay Pradhan Vs. State of M.P. (1988) 4 SCC 514

observing that when a seat falls vacant in any particular academic year, there

is a corresponding duty cast on the Authorities to take immediate steps to fill

up the same.

11. Having held so, the only question which remains is whether Clause

70.2 (supra) by use of the word "may" leaves it to the discretion of the

University to make available or not the additional seats for Lateral Entry in

accordance therewith.

12. In my view the word „may‟ has been used because the availability of

additional seats under Clause 70.2 is dependent upon the number of

cancellations at the first year level and not to leave the availability of the

seats in the discretion of the University. Even otherwise there is no

justification for the stand of the University for not filling up the said vacant

seats in the second year of the course as per the formula given in Clause 70.2

(supra) or for keeping the said seats vacant. Rather the counsel for the

University during the course of hearing handed over the Circular of the

University expressing concern with respect to the students who take

admission and report initially but afterwards without any intimation stop

attending classes. This Court in Himanshu Pathak Vs. NCT of Delhi 135

(2006) DLT 130 and Prakash Kumar Ashiyana Vs. NCT of Delhi (2009)

93 DRJ 512 has held that the University is bound by the directions of

AICTE. I however find that another Single Judge in W.P.(C) No.2293-

94/2006 titled Abhijay Vs. AICTE decided on 3rd May, 2007 also relating to

Lateral Entry held the role of AICTE vis-à-vis the Universities constituted

under the Central Act to be only advisory. However, the respondent

University has not been established under a Central Act but under a State

Act. Thus, I choose to follow the other two judgments. Moreover it is not

as if the University is not permitting Lateral entry; it is permitting under

Clause 70.1 and there is no reason for not permitting under Clause 70.2.

13. I therefore allow the petition to the extent of holding that the

University is bound to in accordance with Clause 70 (supra) provide for

admission by Lateral Entry in second year not only in accordance with

Clause 70.1 but also in accordance with Clause 70.2, with effect from the

next academic session. The University is also directed to evolve a procedure

for the various Colleges / Institutes affiliated to it, intimating to it the

number of cancellations at the first year level and the number of students

belonging to the earlier batches who have become eligible for second year as

per Rules of the University, to enable the University to hold counselling for

the additional seats provided for in Clause 70.2 (supra).

14. With the aforesaid direction, the petition is disposed of with no order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

18th October, 2010 „gsr‟ (Corrected and released on 12th November, 2010)