Srishti Chandok vs Guru Gobind Singh Indraprastha ...
2010 Latest Caselaw 4803 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 18th October, 2010.

+                                   W.P.(C) No.6641/2010
%

DHRUV SINGHAL                                                         ..... Petitioner
                                    Through:      Mr. Ravi Gupta, Sr. Advocate with
                                                  Mr. Deepak Vohra & Mr. Gaurav
                                                  Gupta, Advocates

                                               Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ANR.                             ..... Respondents
                  Through: Mr. Mukul Talwar, Advocate for R-1.
                           Mr. Laliet Kumar, Advocate for R-2.

                                               AND

+                                   W.P.(C) No.6896/2010
%

SRISHTI CHANDOK                                                         ..... Petitioner
                                    Through:      Mr. Sachin Mishra, Advocate

                                               Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ANR.                             ..... Respondents
                  Through: Mr. Mukul Talwar, Advocate for R-1.
                           Mr. Laliet Kumar, Advocate for R-2.

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?


W.P.(C) Nos.6641/2010 & 6896/2010                                           Page 1 of 15
 RAJIV SAHAI ENDLAW, J.

1. WP(C) No.6641/2010 has been preferred averring that the petitioner

appeared in the Common Entrance Test (CET) conducted by the respondent

no.1 University on 5th June, 2010 for admission to Engineering & B.Tech

programmes in the Institutes / Colleges of the respondent No.1 University

itself as well as its affiliates; that in the result declared by the respondent

No.1 University, the petitioner had secured the rank of 15070 in the merit

list; that though as per the Admission Brochure published by the respondent

No.1 University, the admission process was required to be completed by 30th

September, 2010 but the second round of counselling for admission in

respondent No.2 Maharaja Agrasen Institute of Technology (MAIT), an

Institute / College affiliated to the University was started only on 13th

September, 2010 and was stated to be continuing at the time of filing of the

petition on 28th September, 2010; that the petitioner even otherwise learnt

from news items that there were still vacant seats in various other Institutes /

Colleges affiliated to the University and which had applied to the University

for filling up the said seats even after the conclusion of the second

counselling by 30th September, 2010; that the petitioner approached MAIT

and was informed that there were still 11 vacant seats either on account of

students who had not joined inspite of taking admission or on account of

seats not filled up by the University; that the University was however not

admitting the petitioner to MAIT. The petitioner thus sought a writ directing

the University to permit the petitioner to be admitted to the B.Tech course in

MAIT in the academic year 2010-11.

2. The petition came up before this Court first on 29 th September, 2010.

The counsel for MAIT appearing on advance notice confirmed that there

were eleven vacant seats and of which six were stated to be of the Scheduled

Tribe (ST) Category for which no admissions had been made and the

balance five were of the students who inspite of being required to join within

one day of the last date of admission (i.e. 19 th September, 2010) but had not

reported / joined till then. The counsel for the University appearing on that

date had submitted that the said six seats of the ST category were not put to

counselling till then. He confirmed that as per the Rules if the said seats

remained vacant, they were to be offered next to the Scheduled Castes (SC)

category candidates and if still remained vacant were to be offered to the

General Category candidates. The counsel for the University on that date

further stated that even if they were to be offered to the General Category

candidates, the petitioner with the rank of 15070 was unlikely to be admitted

thereto. However, since it was informed that the University was considering

counselling for ST/SC category on 30th September, 2010, being the last date

for admissions as per the prospectus of the University, the matter was

adjourned with a direction to the University to put the said six seats for

counselling to ST/SC category on 30th September, 2010.

3. On the next date i.e. on 1st October, 2010, the counsel for the

University stated that out of the aforesaid six seats, two were for the ST

category and four for the Physically Handicapped category (PH); it was

further informed that pursuant to counselling on 30th September, 2010, no

ST category candidate turned up and the two ST category seats thus

devolved upon the SC category and of which only one could be filled up; it

was yet further informed that none of the four seats in the PH category also,

though put for counselling, were filled up. It was informed that the vacant

seats in the PH category also under the Rules devolved upon the General

Category. The position which thus emerged was that one out of two seats in

the ST/SC category and four seats of the PH category and which had all

devolved upon the General Category had remained vacant without ever

being put for counselling for the General Category. However, the counsel

for the University contended that the seats could not be filled up after 30 th

September, 2010 in view of the judgment in Mridul Dhar Vs. Union of

India (2005) 2 SCC 65. The counsel for MAIT also on 1st October, 2010

informed that of the other five vacant seats, to which admission had been

done but students had not turned up, three had turned up. It was further

informed that MAIT would wait for the remaining two students also. Thus,

the question which survives is only of the SC/ST & PH category seats which

had devolved upon the General Category and which had never been put to

counselling.

4. Since then counter affidavit has been filed by the University and to

which rejoinder has been filed by the petitioner. The stand of the University

in the counter affidavit is that the ST & PH category seats could not be put

to counselling earlier as per the time schedule prescribed in the Admission

Brochure owing to the recognition of the MAIT having been earlier revoked

by the All India Council for Teacher Education (AICTE) and MAIT having

joined in the counselling late and by which time the counselling for the ST

& PH category was already over. Reliance is also placed on the opinion

dated 31st October, 2007 of the Additional Solicitor General (ASG) to the

effect that no admissions could be made after 30th September, 2010. It is yet

further pleaded that the petitioner if keen for admission in MAIT could have

obtained admission under the Management Quota.

5. The petitioner in the rejoinder, with respect to the opinion dated 31st

October, 2007 of the ASG has stated that the same was on the basis of the

judgment in Supreet Batra Vs. Union of India (2003) 3 SCC 370 relating to

admission to medical courses and has further pleaded that as far as MAIT is

concerned, subsequent to 30th September, 2010, no studies have taken place

owing to the Commonwealth Games and the delay in admission would thus

not interfere with the schedule of studies. It is also pleaded that owing to the

Commonwealth Games, the University itself has delayed the examination of

the first semester. It is further stated that the opinion of the ASG was on the

basis of the Admission Brochure of 2007 which was materially different

from the Admission Brochure for the current academic year and thus does

not apply. It is yet further pleaded that though the University in accordance

with the procedure prescribed in the Admission Brochure for admission for

the present year of Open House Counselling after the second round of

counselling held such counselling for other courses but not for B.Tech

course on the false premise of no seats being available, when the seats as

aforesaid were available.

6. The senior counsel for the petitioner has invited attention to the

Admission Brochure for the current academic year prescribing the dates of

7th July, 2010 for commencement of first counselling, of 13th August, 2010

for display of second counselling schedule and of 18th August, 2010 for

commencement of second counselling. It is argued that the second

counselling in fact commenced on 28th August, 2010 and the counselling

with respect to MAIT commenced only on 13th September, 2010. Attention

is also invited to Clause 6(viii) in Chapter 10 of the Admission Brochure

providing for Open House Counselling in the event of any of the seats

remaining vacant and to Clause 6 (xi) providing that if any vacancies arise

after second counselling, the same shall be filled up as per the directions of

the Courts / decision of the University. The said Admission Brochure does

of course provide that the last date for all kind of admissions is 30th

September, 2010. He has further relied on the notice dated 21st September,

2010 of the University to the effect that since all the seats in B.Tech course

had been filled up, there will be no Open House Counselling and on the

notice dated 25th September, 2010 also of the University with respect to open

house counselling in other courses offered by the University. On enquiry, it

is informed that the academic session commenced on 2 nd August, 2010.

7. It thus appears that the University has made admissions at least

insofar as MAIT is concerned, even after the commencement of the

academic session, at least till 13th September, 2010 as contended by the

University and till 19th September, 2010 as contended by the petitioner. It is

thus argued that the commencement of the academic session is not relevant

for admissions. It is further argued that the delay being on the part of the

University itself, admission to the petitioner in the vacant seats cannot be

denied on the plea of such delay.

8. The senior counsel for the petitioner during the hearing has also

handed over the Admission Brochure for the academic year 2007-08 which

does not provide for open house counselling and which rather expressly

provides that after the second counselling, there will be no third counselling

and no admission shall be made thereafter. He has also contended that the

judgments in Sharwan Kumar Vs. Director General of Health Services

1993 Supp (1) SCC 632 as well as in Mridul Dhar (supra) were relating to

medical courses which were governed by the Statutes governing the medical

education and which have no application to admissions to the B.Tech course.

9. The counsel for the University, while admitting the delays beyond the

stipulated dates in the Admission Brochure, has stated that the same are

attributable to the delay by AICTE in granting approval. It is stated that the

University acted in right earnest and immediately upon receipt of approval

letter dated 17th August, 2010 from AICTE held an emergent meeting of

Board of Affiliation on 18th August, 2010. It is argued that open house

counselling is to be held only when all the students have once been given the

option for all the seats. It is stated that if the five seats of ST/PH category

which have devolved to the General Category as aforesaid are to be put to

counselling, since the said seats were never put to counselling earlier, the

counselling therefor cannot be following the open house procedure but can

only be as per the procedure prescribed for the first & second round of

counselling and in which case all the students admitted to B.Tech course in

various Institutes / Colleges will have an option and which will disturb the

entire admission procedure and have a cascading effect. He has also sought

to argue that the petition suffers from laches. It is orally also contended that

the present petition has been got filed by MAIT only. It is again orally

stated that MAIT inspite of late recognition approval by the AICTE was

allowed to join in counselling on the oral assurance of its Chairman that

whatever seats remain vacant shall be surrendered.

10. The counsel for MAIT has contended that before seats are allowed to

be left vacant, regard has to be had to the dynamics of a self financing

institution. It was urged that it is the obligation of the University to fill up

the seats. On enquiry as to how the minimum requirement of attendance

shall be fulfilled for the students if directed to be admitted now, it is stated

that session insofar as MAIT is concerned has started only on 20th

September, 2010 and whereafter MAIT was closed on account of

Commonwealth Games and thus such issues are unlikely to arise.

11. I have during the hearing brought it to the notice of the counsel for the

University that the five ST/PH Category vacant seats aforesaid in MAIT are

not on account of students dropping out or not joining but for the reason of

having not been put to counselling at all, and whether on account of the said

factor alone, are not to be considered differently. I have recently in

judgment dated 4th October, 2010 in WP(C) No.6303/2010 titled Aditya

Institute of Technology Vs. GNCTD, referring to the various judgments of

the Apex Court and this Court in this regard held that merely because the

seats remain vacant is no ground for the admission procedure to continue.

However, that case as well as all the cases referred to therein are the cases

where seats remained vacant on account of the students admitted thereto

dropping out or not joining. None of the cases are of the category as the

present case i.e. where no admissions have been made to the seats remaining

vacant.

12. 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. The Supreme Court in Charles K. Skaria Vs. Dr. C. Mathew

(1980) 2 SCC 752 has held that the Courts must see that no costly seat for

advanced studies in which the community as a whole has stake, is wasted;

the Court should not give up the search for alternatives. In such

circumstances, it was felt that all attempts should be made to fill up the

seats, of course if the same does not interfere with the academic calendar

and merit. However, before that it has to be considered whether in view of

the last date of 30th September, 2010 for admissions, prescribed in the

Admission Brochure and in view of the judgments aforesaid particularly in

Mridul Dhar the same can be considered.

13. As far as the provision in the Admission Brochure is concerned, the

petitioner had approached this Court before the last date of 30 th September,

2010. If it is found that the petitioner is entitled to relief, merely because the

matter could not be decided on the first date would not be a ground to deny

the relief to the petitioner.

14. Insofar as the judgments aforesaid laying down the counselling

schedule are concerned, I find that the said judgments were in the context of

the filling up of the 15% All India Quota Seats in the Medical Colleges. The

Court found considerable delay on the part of the various State Governments

/ Colleges not forwarding the requested information to the Centre and which

led to the delays in the said admission. It was in the said light that the time

schedule came to be laid down. I do not find anything in the said judgments

which would be a precedent for all kinds of educational programmes /

disciplines or prevent this Court even when it finds that no prejudice to the

academic calendar or to merit is being caused as in the present case, from

allowing admissions after 30th September. In the present case as aforesaid,

there has hardly been about 10 days of studies in MAIT owing to the various

intervening events and the petitioners even if admitted to MAIT would not

suffer any such prejudice which cannot be made up by extra classes etc. and

for which both the petitioners and MAIT have shown willingness. I also find

that the Supreme Court in Dr. Smitha Nath Vs. UOI (2009) 13 SCC 255

even in case of medical college allowed counselling beyond the stipulated

date for seats which had remained to be put for counselling.

15. The University when had allowed MAIT to join the counselling on

13th September, 2010 and when held counselling for admission thereto on

13th September, 2010, ought to have held the counselling for the two ST

category & four PH category seats also. The University, before this Court

on 29th September, 2010 admitted that it was itself even then considering

counselling for the said seats. Thus, the delay between 13th September, 2010

and 29th September, 2010 in holding counselling for the said seats is

attributable squarely to the University. Had the University held the

counselling for the said seats on 13th September, 2010 itself as it ultimately

did on 30th September, 2010, upon the said seats remaining vacant, the same

would have devolved to the General Category well before the prescribed last

date of 30th September, 2010. However, there is no explanation whatsoever

in this regard.

16. With respect to the argument of the University, of admissions if to be

now allowed to the five seats having cascading effect, the Admission

Brochure, though provides that candidates who got admission during the

first counselling are eligible to join in second counselling if they wish to

change the Programme / Institute on the basis of their merit against the

available vacant seats, also provides that the students who have taken

admission in the second counselling would not be allowed to change the

Programme / Institute in the subsequent days of the second counselling.

However, I am unable to accept the said contention of the senior counsel for

the petitioner. The said provision is applicable only qua the seats which have

already been put to counselling. The seats with which we are concerned in

the present petition are those which have not been put to counselling as yet.

Thus the procedure to be followed therefor is as of the first and second

counselling and not of open house counselling. A similar situation had arisen

in Arvind Kumar Kankane Vs. State of U.P. (2001) 8 SCC 355 also. The

Supreme Court approved the judgments of this Court holding that if by

mistake a seat is not included in the initial counseling then the effect is that

nobody opts for the same and has to be offered to all the candidates for

counseling including those who had taken part in the earlier rounds of

counselling. However, finding that the same would upset the counselling

which had already taken place, it was held that the said seats have to be

offered to the waitlisted candidates even if the said procedure was somewhat

unfair to the candidates who took part in the earlier counselling.

17. However, it is only the petitioners in these two petitions who have

approached the Court. A Division Bench of this Court has in judgment dated

10th December, 2009 in LPA No.622/2009 titled Dr. Manish Patnecha Vs.

Chairperson, Counselling Committee, AIIMS, when finding the applicant

entitled to admission and admission being not possible in the year for which

the applicant had applied for admission gone to the extent of reserving a seat

for the petitioner in the next academic session. In the spirit of the said

judgment, I do not see any difficulty in requiring the University to grant

admission to the petitioners only to MAIT without going through the entire

procedure of admission.

18. WP(C) No.6896/2010 had come before this Court first on 8th October,

2010 and was being taken up along with WP(C) No.6641/2010. Though the

petitioner in the said case approached the Court after 30 th September, 2010

but in the aforesaid circumstances it is deemed expedient to grant relief to

the said petitioner also as to the other petitioner.

19. That would still leave the question of three remaining vacant seats in

MAIT. I am of the view that the seats should not be allowed to go waste. I

am also impressed with the argument of the MAIT that such vacant seats can

play havoc with the balance sheet of the self financing educational Institutes

and which would ultimately affect the students studying therein. It is

therefore deemed appropriate to make a provision for the said three seats

also.

20. The respondent No.1 University is directed to make appropriate

provision for admission to the said three remaining seats also within one

week of today.

21. Before parting with the case, I may clarify that the view aforesaid has

been taken owing to the seats having not been put to counselling / admission

at all and would not apply to cases of vacancies occurring after the

admissions have been made.

22. The petitions are therefore disposed of by directing the respondent

No.1 University to admit the two petitioners to the B.Tech course in the

respondent No.2 Institute and to as aforesaid also make admissions in the

similar fashion to the remaining three vacant seats. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 18th October, 2010 'gsr'