Maharaja Agrasen Institute Of ... vs Director, Higher Education & Ors
2011 Latest Caselaw 134 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 11th January, 2011

+                                  W.P.(C) No.3816/2010

%        MAHARAJA AGRASEN INSTITUTE
         OF TECHNOLOGY                      ..... PETITIONER
                    Through: Mr. Raghav Awasthi, Advocate

                                      Versus

    DIRECTOR, HIGHER EDUCATION & ORS... RESPONDENTS
                 Through: Ms. Zubeda Begum, Advocate for
                           respondents 1 & 2.
                           Mr. Mukul Talwar with Mr.
                           Sradhananda Mohapatra, Advocates
                           for respondent No.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
         in the Digest?                              Yes.

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 29 th December, 2009 of the

Committee authorized by the Lieutenant Governor of the National Capital

Territory of Delhi in exercise of powers under Section 19(1) of the Delhi

Professional Colleges or Institutions (Prohibition of Capitation Fee,

Regulation of Admission, Fixation of Non-Exploitative Fee and other

Measures to Ensure Equity and Excellence) Act, 2007 for compounding an

offence punishable under Section 18 of the said Act. The offence allegedly

committed by the petitioner has been compounded by imposing penalty of

`25,00,000/- on the petitioner.

2. This Court while issuing notice of the petition, vide order dated 31 st

May, 2010 stayed operation of the order aforesaid subject to the petitioner

depositing `10,00,000/- with the Registrar General of this Court and which

amount has been deposited and directed to be kept in a fixed deposit.

3. The Act aforesaid, as per its Preamble was enacted to provide for

prohibition of capitation fee, regulation of admission, fixation of non-

exploitative fee, allotment of seats to Scheduled Castes, Scheduled Tribes

and other socially and economically backward classes and other measures to

ensure equity and excellence in professional education in the National

Capital Territory of Delhi and for matters connected therewith or incidental

thereto. Section 3 of the said Act makes the same applicable to unaided

institutions affiliated to a University imparting education in degree, diploma

and certificate courses. It is not in dispute that the petitioner is an institution

to which the Act is applicable. The petitioner is affiliated to the respondent

No.3 Guru Gobind Singh Indraprastha University.

4. Section 18 of the said Act, of offence whereunder the petitioner is

alleged to be guilty, is as under:

"18. Without prejudice to the penalty specified in any other law for the time being in force, whoever contravenes the provisions of this Act or the rules made thereunder shall, on

conviction be punishable with imprisonment for a term which may extend to three years, or, with fine which may extend to one crore rupees, or with both."

5. Section 19(1) of the Act providing for compounding of offence is as

under:

"19. (1) Any offence punishable under Section 18 may be compounded by such officer of body as may be specially authorized by the Government in this behalf, either before or after the institution of the prosecution, on payment for credit to the Government of such sum as such officer or body may impose:

Provided that such sum shall not, in any case, be less than five lakh rupees and, exceed the maximum amount of the fine which may be imposed under this Act for the offence so compounded:

Provided further that in the event of charging of excessive fee by the institution than the notified fee, the amount of compounding fee shall not be less than double the amount of fee excessively charged or five lakh rupees, whichever is higher.

(2) Nothing in sub-section(1) shall apply to a person who commits the same or similar offence within a period of three years from the date on which the first offence committed by him was compounded.

Explanation: For the purposes of this sub-section, any second or subsequent offence committed after the expiry of a period of three years from the date on which the offence was previously compounded, shall be deemed to be a first offence.

(3) Where an offence has been compounded under sub- section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, if in custody, shall be discharged forthwith."

6. The respondents 1&2 in the show cause notice dated 12 th June, 2009

served on the petitioner prior to the order impugned in this petition alleged

that the petitioner had admitted five extra candidates under different

branches of B.Tech. (Lateral Entry) programme, constituting an offence

under Section 18 of the Act and that a Committee had been constituted

under Section 19 of the Act to compound the said offence and called upon

the petitioner to show cause as to why penalty should not be imposed on it

for contravening the provisions of the Act.

7. The order dated 29th December, 2009 impugned in this petition

records that the Lieutenant Governor had constituted a Committee

comprising of, i) Secretary, Higher Education, ii) Registrar General of the

respondent No.3 University and iii) Director, Higher Education, to

compound the offence committed by the petitioner under Section 18 of the

Act; that the respondent No.3 University had informed that the petitioner

had committed an offence by admitting five extra students over and above

the sanctioned strength in B.Tech. (Lateral Entry) programme at their own;

that the petitioner in reply to the show cause notice had admitted

contravention of the provisions of the Act due to lack of awareness on the

part of its former Director and requested for imposition of a token penalty to

save the future of the students. It was further held that in terms of Section

14 of the Act, admissions made in contravention of the provisions of the Act

or the Rules shall be void. After recording so, the order directs the

petitioner to deposit the penalty amount of `25,00,000/- with the

respondents 1 &2.

8. The petitioner contends that the order fails to disclose the provisions

of the Act or the Rules made thereunder under which the admission of five

extra students is an offence; that the Act or the Rules do not at all cover a

case where extra students have been admitted over and above the sanctioned

strength; that thus no violation of any provision of the Act or the Rules has

been committed by the petitioner; that no adequate reasons have been given

for the imposition of the penalty; that the admission through lateral entry has

been allowed by the All India Council for Technical Education (AICTE)

(though not impleaded as respondent to the petition) for the first time on 12 th

January, 2007 and no provision in that regard had been made by the Delhi

Government and thus the lateral entry to the second year is covered only by

the AICTE regulations and which have not been contravened in any way by

the petitioner. In the petition itself several judgments have been cited on the

requirement to give reasons and on the requirement for following the

principles of natural justice, though no reliance thereon was placed during

the hearing.

9. At this stage, the factual matrix which is not in dispute may be

noticed:

(i) The admission to the second year of B.Tech. course is

described as "lateral entry". The said lateral entry is available

for diploma holders and B.Sc. graduates. The AICTE in its

Approval Process Handbook has prescribed for such lateral

entry upto a maximum of 10% of the sanctioned intake. Such

lateral entry has been the subject matter of Isha Wadhwa Vs.

GGSIPU 2010(9) AD (Delhi) 668. In the said judgment, it is

recorded that the provision for lateral entry exists in the

admission brochure of the University which also prescribes the

number of seats available in the affiliates of the University for

such lateral entry.

(ii) The petitioner vide its letter dated 18th August, 2008 informed

the respondent No.3 University that it had granted provisional

admission to fifteen students mentioned therein in the second

year B.Tech. course through lateral entry and sought approval

of the respondent No.3 University for the same. The

respondent No.3 University vide its response dated 20th August,

2008 to the petitioner informed the petitioner that as per the

admission brochure of the respondent No.3 University for the

Session 2008-09, except for Management Quota, any admission

made directly by any Institute / College will be illegal and

unauthorized and the respondent No.3 University will not issue

any enrollment number to any such candidate. The petitioner

was thus informed that its request could not be acceded to.

(iii) The petitioner in its subsequent letter dated 3rd December, 2008

to the respondent No.3 University admitted that after receiving

the reply dated 20th August, 2008 from the respondent No.3

University, it informed the fifteen students who were earlier

provisionally admitted that they should attend the second /

Open House Counselling; that out of the fifteen students, ten

students attended the counselling and were admitted; however

the remaining five students could not be communicated to

attend the counselling. Notwithstanding the said five students

having not attended the counselling, and having not been

admitted by the University, the petitioner continued with them.

In the letter dated 3rd December, 2008, it was explained that the

then Director of the petitioner was not fully aware about the

University Admission Rules and owing to lack of awareness

committed the mistake and continued with the admission of the

five out of the fifteen students, notwithstanding the said five

students having not participated in the counselling. The

petitioner thus tendered unqualified apology for the mistake

committed and requested the respondent No.3 University to

regularize the admission and assured the University that the

mistake will not be repeated and further requested the

respondent No.3 University to impose a token penalty on the

petitioner. While stating so, it was stated that the said five

students "were also selected against vacant seats along with

five Management Seats on 30th August, 2008." Since by then

the first semester examinations were due from 8th December,

2008, the petitioner requested the respondent No.3 University

to regularize the admission to enable the said five students to

appear in the examinations.

(iv) The respondent No.3 University on 5th December, 2008 sought

the views of the respondents 1 & 2 in this regard. It appears

that the Director of the petitioner Institute also submitted an

undertaking (which has not been filed by either of the parties).

The respondents 1 & 2 vide their letter dated 5th December,

2008 to the University directed the respondent No.3 University

to issue enrollment number subject to the said students

furnishing an undertaking that it will not entitle them to any

subsequent claim, "if offence is not compounded, admission

being irregular one". It was further directed that their result of

the examination be also not declared till a final decision is

taken. The respondent No.3 University accordingly vide letter

dated 8th December, 2008 to the petitioner communicated to the

petitioner the decision to allow the said five students to

provisionally take the examination.

(v) Thereafter as aforesaid, show cause notice was issued to the

petitioner. The petitioner in reply dated 6th July, 2009 to the

show cause notice inter alia informed that there were fifteen

vacant seats in the admissions made in the academic year 2008-

09 due to withdrawals / cancellation and in view whereof the

said fifteen students were admitted; again mistake on the part of

the Director was pleaded.

10. The counsel for the petitioner has argued that in the aforesaid facts no

case of contravention of provisions of the Act or the Rules constituting an

offence within the meaning of Section 18 of the Act which could be

compounded under section 19 of the Act is made out. It is contended that all

the students admitted were within the permitted strength for admission of

the petitioner Institute.

11. I am unable to agree with the contention of the counsel for the

petitioner. Section 13 of the Act requires an Institution as the petitioner to

make admissions through a Common Entrance Test to be conducted by the

designated agency, in such manner as may be prescribed. The proviso

thereto carves out an exception only qua the Management Seats. The

petitioner admits that five students aforesaid admitted by it through lateral

entry were not admitted in the process of counselling conducted by the

respondent No.3 University but were admitted by the petitioner on its own.

Upon the same being put to the counsel for the petitioner, he replies that the

requirement of Section 13 of the Act is only for making admission through a

Common Entrance Test to be conducted by the designated agency i.e. the

respondent No.3 University. He argues that each of the said five students

had participated in the Common Entrance Test held by the respondent No.3

University and cleared the same. He contends that there is no requirement

of the students being admitted through the process of counselling held by the

respondent No.3 University, so long as they were within the permitted

strength for admission.

12. The argument aforesaid besides being preposterous and contrary to

the Scheme of the Act, overlooks Section 3(d) of the Act which defines

"Common Entrance Test" as an entrance test conducted for determination of

merit of the candidates, followed by centralized counselling for the purpose

of merit based admission to an Institution through a single window

procedure by the designated agency. Section 3(w) defines "single window

system" as the centralized system for admissions to institutions.

13. It is thus clear that the students could be admitted by the petitioner

only through the Common Entrance Test. The only students who could be

admitted by the petitioner directly were under its Management Quota seats.

It is not the case of the petitioner that the five students were admitted in the

Management Quota seats. According to the petitioner the said five students

were admitted while admitting students to the Management Quota seats.

The admission of the said five students is clearly in violation of Section 13

of the Act and accordingly an offence within the meaning of Section 18 of

the Act. It is immaterial that the admissions were within the sanctioned

strength.

14. The counsel for the petitioner has vehemently argued that the

respondents 1 & 2 in the show cause notice have wrongly presumed the

admission of the said five students to be in Management Quota and

contended that the said admissions were against the General Quota. As

aforesaid, in the General Quota there can be no admission directly by the

petitioner and admission could only be through the Common Entrance Test.

It may however be noted that the stand of the petitioner in this regard has

been inconsistent. Rather from the correspondence, it is found that the

petitioner either itself was treating the said five admissions in the

Management Quota or attempting to justify the same as under Management

Quota and for which the admissions were not required to be through the

process of Common Entrance Test and counselling. As noted hereinabove,

the petitioner had repeatedly sought the approval of the respondent No.3

University for the said five admissions. Such approval under Rule 8(viii) of

the Delhi Professional Colleges or Institutions (Prohibition of Capitation

Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other

Measures to Ensure Equity and Excellence) Rules, 2007, is required only

with respect to the Management Quota seats. Had the petitioner itself not

been treating / representing the said five admissions to be under the

Management Quota, there was no need for the petitioner to seek approval of

the University for the same. In any case, it is now admitted that the said five

admissions are beyond the permitted strength for Management Quota.

15. The argument of the counsel for the petitioner that the admission by

the petitioner of its guilt is erroneous is thus without any basis. The

petitioner was fully aware of the violation of the provisions of the Act

committed by it and had for this reason only while rendering explanation of

the same, sought apology and offered payment of token penalty. The

petitioner as aforesaid also gave an undertaking to the respondents to secure

provisional enrollment number for the aforesaid five students for the first

semester end term examination. The petitioner however turned turtle while

approaching this Court.

16. The explanation of the petitioner of a mistake cannot be accepted and

cannot be a mitigating factor. The petitioner on 20th August, 2008 itself was

informed that the fifteen provisional admissions made by it were illegal and

void under Section 14 of the Act. The petitioner thereafter made ten out of

the said fifteen students participate in the counselling and the said ten

students were admitted. The petitioner notwithstanding the same continued

with the admission of the remaining five students and / or admitted them on

30th August, 2008 knowing fully well of the illegality thereof. The

petitioner was obviously guided by commercial reasons. The petitioner

even thereafter persisted with the admission and made the respondents issue

provisional enrollment number to the five students on the undertaking that it

will compound the offence. The petitioner cannot now be heard to contend

otherwise.

17. The petition is therefore found to be not only without merits but also

mala fide. The petition is dismissed. The sum of `10,00,000/- deposited by

the petitioner in this Court together with interest accrued thereon is directed

to be released by cheque / draft in the name of the "The Delhi Higher

Education Aid Trust." The petitioner is directed to pay the balance sum of

`15,00,000/- by draft in the name of the "The Delhi Higher Education Aid

Trust" to the respondents within four weeks of today together with interest

thereon at the rate of 11% per annum from 31st May, 2010 when stay with

respect to the said amount was obtained and till the date of payment. The

respondents having been compensated by interest for the delay in payment,

no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 11th January, 2011 „gsr‟