Yatharth Gupta vs Netaji Subhas Institute Of ...
2011 Latest Caselaw 4231 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Judgment delivered on: 30.08.2011

         +W.P.(C) No.5947/2011 and C.M.No.12033/2011



Yatharth Gupta                               ......Petitioner

                 Through: Mr. R.K. Saini and Mr. Sitab Ali
                          Chaudhary, Advocates.


                      Vs.

Netaji Subhas Institute of Technology
& Anr.                                     ......Respondents

                 Through: Ms. Avnish Ahlawat, Advocate


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
    be allowed to see the judgment?                         Yes
2. To be referred to Reporter or not?                       Yes
3. Whether the judgment should be reported
    in the Digest?                                          Yes


KAILASH GAMBHIR, J.Oral :
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to direct

the respondents to allow the petitioner to participate in the

3rd round of second phase of counseling as per his rank and

merit to seek admission in B.E. Course. The petitioner also

seeks directions to direct the respondent No.1 to make a

proper provision in the prospectus to provide further time or

to depute an authorized representative of the candidate, who

due to some emergent circumstances is not able to present

himself in the second phase of counseling.

2. Brief facts as set out by the petitioner in the

petition relevant for deciding the present petition are that the

petitioner is a resident of Ghaziabad and after having

qualified his 12th examination of CBSE Board had appeared in

the All India Engineering Entrance Examination (AIEEE),

2011 conducted by the CBSE and in the said examination he

secured an All India Rank of 7936 and general category rank

of 6638. After having qualified the said entrance test, the

petitioner sought his admission with Netaji Subhash Institute

of Technology, the respondent No.1 herein, which is an

autonomous institute of the Govt. of NCT of Delhi (respondent

No.2) and is affiliated with the University of Delhi, imparting

education in engineering courses. The petitioner got himself

registered on-line to seek admission in B.E. Course in the

respondent No.1-institute and that he deposited the necessary

registration fee of Rs.1,000/- on 13.06.2011. As per the

criteria laid down in the prospectus issued by the respondent

No.1, the admission process has been divided into two phases,

with each phase having three rounds of counseling. It is also

the case of the petitioner that as far as first phase of

counseling is concerned, the same is on-line and for

consideration of participation in the second phase of online

counseling, physical presence and marking of attendance has

been made compulsory and the said date as per the

prospectus (for outside general category candidates) was

26.07.2011 and for Delhi region general candidate the date

was fixed as 25.07.2011. It is also the case of the petitioner

that as per his rank he could not make up in the first phase of

counseling and, therefore, as per the laid down requirements

in the said prospectus, the petitioner was required to present

himself and mark his attendance to participate in the second

phase of counseling on 26.07.2011. It is also the case of the

petitioner that because of suffering from viral fever and

severe gastritis on 25.07.2011 he was taken to nearby

hospital for treatment where the Dy. Medical Superintendent

attending the petitioner advised him rest for a period of four

days. It is also the case of the petitioner that against the

medical advise the petitioner left his home on the morning of

26.07.2011 at about 8:30 a.m. and reached Anand Vihar

Metro Station by bus, but after reaching there his physical

condition was so bad that he started feeling unconscious and

was brought back to his home by his uncle. It is also the case

of the petitioner that it took him 4-5 days to regain his health

to normal and after having recovered from his illness, he

along with his father visited the respondent-institute on

01.08.2011 so as to meet the officials of the respondent No.1

to check his admission status . It is also the case of the

petitioner that although the counseling was still in progress

but he could not get any definite reply from the officials of the

respondent No.1 and on 08.08.2011 the petitioner and his

father met the Chairman of the Admission Committee, who

informed them that the petitioner still stands a fair chance to

get admission in the third round of second phase of

counseling as the students having rank of 6700 of outside

Delhi category had already been considered in the second

round of second phase counseling. The said Chairman,

however, informed the petitioner that he already stands

debarred to participate in the said counseling, as he had

failed to present himself and mark his attendance on

26.07.2011. It is also the case of the petitioner that he made a

representation on 12.08.2011 to the Director of the

respondent No.1-institute to plead for his participation in the

third round of second phase counseling to be held on or

before 31.08.2011. It is also the case of the petitioner that a

part of third round of second phase of counseling was held on

13.08.2011 itself in which candidates upto the rank of 8700

(outside Delhi category) were considered for admission, but

yet some seats were still available for which a further round

of counseling was to be held by the respondent No.1-institute.

In the said background of facts, feeling aggrieved by being

denied to participate in the counseling, the petitioner has

approached this Court.

3. Mr.R.K.Saini, learned counsel appearing for the

petitioner has strongly contended that the petitioner had duly

qualified the entrance examination i.e. AIEEE, 2011

conducted by the CBSE which is a highly competitive

examination and had secured All India Rank of 7936. The

contention of counsel for the petitioner is that the petitioner

would be deprived to get a seat in the respondent No.1-

institute mainly because he could not present himself to mark

his attendance on 26.07.2011, that too on account of

circumstances beyond his control. Counsel also argued that

no provision has been made by the respondent No.1-institute

in the prospectus to deal with the supervening circumstances

due to which the candidate may not be able to cause his

physical presence on the stipulated date and time. Counsel

also raised a plea that even in the prospectus, there is no

provision where a student can also be represented through an

authorized representative to allow the student to be

registered to participate in the second phase of counseling

process. Counsel also submits that it is not the case of the

petitioner that he did not turn up for the counseling or

refused to take admission after having got the seat in the first

phase of counseling or there was any failure on the part of the

petitioner not to participate in the first phase of counseling,

although as per his rank he could get the seat in the first

phase of counseling, as in such cases only the candidate can

be refused to participate in the next phase of counseling. The

argument of counsel for the petitioner is that mere absence of

the petitioner just to report his physical presence and mark

his attendance on the stipulated date i.e. 26.07.2011 with no

provision to provide for any supervening circumstance, such

denial to the petitioner would play havoc on his career. In

support of his arguments, counsel for the petitioner has

placed reliance on the judgment of this Court in the case of

Saurabh Vs. GNCT of Delhi & Ors. WP(C) 4782/2010 decided

on 22.07.2010.

4. Opposing the present petition, Ms. Avnish Ahlawat,

learned counsel for the respondent submits that in terms of

the laid down instructions in the prospectus for the year

2011-12, the physical presence and marking of attendance

for the second phase of counseling/admission has been made

compulsory for the general candidates belonging to Delhi

region as well as outside Delhi region who seek their

admissions in the B.E. Course. Giving the rationale behind

the said instruction requiring the candidates to physically

present themselves, counsel submits that because many

candidates are seeking their admissions in various institutes

at the time of second phase of admission/counseling and

only those candidates who are seriously interested to seek

admission in the respondent-college come forward to seek

their admissions and due to that reason their physical

presence for the registration of second stage of counseling

has been made compulsory. Counsel also submits that the

entire schedule of counseling has been duly notified in the

Bulletin right from the first round of counseling of first phase

till the end of second phase of counseling. The contention of

the counsel for the respondent is that the entire process of

admissions as per the laid down time schedule must come to

an end on 31.8.2011. Counsel also submits that the present

petitioner did not present himself on 26.7.2011 to mark his

physical presence for his registration in the second phase of

counseling, and therefore as per the laid down Instructions,

the petitioner became ineligible to participate in the second

phase of counseling. Counsel also submits that the petitioner

did not approach the respondent college till 12.8.2011, which

again shows non-seriousness on his part. Counsel also

submits that even the medical certificate filed by the

petitioner does not show whether the petitioner was

suffering from any serious kind of ailment which prevented

the petitioner to present himself to attend the second phase

of counseling. In support of her arguments, counsel for the

respondent has placed reliance on the judgments of this

court in Ms. Nishtha Jain (Minor) Vs. University of Delhi &

Ors. W.P.(C) No. 13811/2006 decided on 13.11.2006, and

Akhil Lohchab Vs. University of Delhi, W.P.(C) No. 5707/2010

decided on 18.11.2010.

5. I have heard learned counsel for the parties at

considerable length and gone through the records.

6. It is not in dispute between the parties that the

petitioner was not allowed to participate in the second phase

of counseling only because of the fact that he did not

physically present himself to mark his attendance on

26.07.2011. There are three rounds of counseling in both the

phases i.e. first phase and second phase and both the

counselings are on-line. The candidate on the basis of All

India Rank obtained by him in AIEEE could apply for on-line

registration to participate in the counseling as per the

schedule laid down in the prospectus. The first round of first

phase of counseling was to commence on 04.07.2011 and the

third round of second phase of counseling was to finally end

on 31.08.2011. The petitioner is a candidate from outside

Delhi region and belongs to General category and as per his

rank he could not get a seat in the first phase of counseling

and to exactly know the exact number of students desirous of

participating in the second phase of counseling the

respondent-institute had laid down a requirement of physical

presence of the students who would be participating in the

second phase of counseling and who have not been allotted

any seat till the third round of first phase of counseling

process.

7. In the prospectus 2011-12, issued by the

respondent institute, it has been clearly indicated that to

participate in the second phase of counseling, physical

presence and marking of attendance are compulsory for all

those candidates who were not allotted any seat in the 3rd

round of first phase of counseling. It has been further

indicated that based on the physical presence and marking

of attendance and requisite information provided by the

candidates, the online seat allotment result of second phase

will be available online at the website of the respondent as

per the schedule for participation in the various rounds of

second phase of counseling indicated therein. The said

provision for physical presence and marking of attendance

has been made compulsory, possibly to exactly know as to

how many students are serious in seeking admission in the

respondent institute and also about those who have not been

allotted any seat till the 3rd round of first phase of the

counseling. No fault thus can be found in the incorporation

of the provision to make physical presence and marking of

attendance compulsory as the institute has every right to

know the seriousness of those candidates aspiring to seek

admission in their institute as at the same time the same

very student may either secure admission in other such

institutes or may not be interested to seek admission in the

respondent institute. The dissension is not thus with the rule

of making the physical presence and attendance compulsory

for all those candidates who were not allotted any seat till the

3rd round of first phase of counseling, but the problem is

certainly created when no provision has been made for

making an exception for all those who failed to present

themselves in the counseling due to circumstances beyond

their control including the medical exigencies. Surprisingly,

the respondent has also not made any provision where the

candidates in such a situation give an authority to their

family members to represent them to mark their attendance.

It would be a travesty of justice if a student, who after

having put his hard work qualifies the highly competitive

test; secures a meritorious position but gets deprived to

seek admission in an institute as per his rank and merit

just because he could not physically present himself to mark

his attendance on a stipulated date so as to make him eligible

to participate in the second phase of online counseling due to

reasons beyond his control . It cannot be ruled out that due

to certain exigencies, which certainly includes medical

exigencies as well, a student himself may not be able to

physically present himself to mark his attendance on a

particular given date which will consequently disentitle him

to participate in the second phase and will most certainly

prove fatal to his career as he is deprived admission on this

ground alone. Ordinarily, the courts lean in favour of the laid

down rules and instructions and it is only for exceptional

reasons, an unwritten rule needs introduction in exceptional

circumstances to advance the cause of justice. No explanation

came forth from the respondent as to why no such provision

has been made in the prospectus to deal with the medical

exigencies or other emergent situations beyond human

control, when possibly an aspiring student may not present

himself to mark his attendance on a particular date. The

respondent has also not advanced any reasons for not even

making a provision for such a candidate to give authority to

his blood relation to represent him to mark his attendance on

a stipulated date. In such like situations, the writ court

cannot act as a helpless, hapless mute spectator as the

prime duty of the court is to dispense justice and not to

entrap itself in the cobwebs of those rules which do not cater

to deal with the normal befalling of human lives. It is also

pertinent to mention that this court in similar circumstances

in WPC No. 3166/2011 and WPC No.3237/2011 had granted

relief to the petitioner who could not physically present

themselves at the time of counseling due to medical

exigencies. The petitioner before this court is a resident of

Ghaziabad and on the evening of 25.07.2011 he had suffered

severe gastritis fever but still he made an attempt to leave

his place on the morning of 26.07.2011 to proceed for

marking his attendance but could not succeed as he felt

unconscious at Anand Vihar Metro Station. As per the

petitioner he along with his father had visited the respondent

institute on 01.08.2011 but finding no plausible answer from

the officials of the respondent, he ultimately, vide his letter

dated 12.8.2011 to the director of the respondent institute

pleaded his case for online participation in the second phase

of counseling. There is no reason to disbelieve the said

version of the petitioner, although this court does feel that the

petitioner should have been more active and diligent in

taking up his matter with the respondent institute and

negligence is writ large on the part of the petitioner but still

considering the future of the petitioner and particularly

looking into the fact that the third round of the second phase

of counseling is still in progress and participation of the

petitioner will not deprive any candidate who is higher in

rank to the petitioner or disturb a candidate who has already

secured a seat, this Court feels it to be a fit case to exercise

its extraordinary writ jurisdiction for the purpose advancing

the cause of justice and equity.

8. The two aforesaid judgments relied upon by the

counsel for the respondent are not applicable to the facts of

the present case and therefore the same cannot come in aid

of the defence raised by the respondent in their counter

affidavit.

9. In the light of the above discussion, this court is

satisfied that the petitioner for the reasons beyond his

control i.e. because of his medical conditions could not

present himself to mark his attendance to participate in the

second phase of online counseling and therefore to balance

the equities and in the peculiar facts and circumstances of

this case, the petitioner deserves to be allowed to

participate in the 3rd round of second phase of counseling to

seek admission in the course with the respondent institute.

10. This court cannot help but observe that the rule of

marking the physical presence at the time of counseling

though has a reasonable rationale to gauge the seriousness of

the candidate, but at the same time are not equipped and are

inept to tackle the practical situation arising in case of

inability of the student to make it personally to the

counseling. Thus this court deems it appropriate that the

respondent college should consider framing a provision, with

safeguards, which will take care of such like eventualities

arising in the future.

11. In the event of the foregoing, the present petition

is thus allowed.

KAILASH GAMBHIR, J AUGUST 30, 2011 mg/dc