Delhi High Court
Dr. Muveen Kumar vs Guru Gobind Singh Indraprastha ... on 3 June, 2011
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 26.05.2011
Judgment delivered on: 03.06.2011
+ W.P.(C) No.2508/2011
Dr.Muveen Kumar ... Petitioner.
Through: Mr. S.D. Salwan and
Mr.NeerajChaudhary,
Advocates.
versus
Guru Gobind Singh Indraprastha
University and Ors. ..... Respondents
Through: Mr.Amit Kumar, Mr.Ashish
Kumar and Mr.Jawahar
Narang, Advocates for the
respondent-MCI
Dr.M.P.Raju, Mr.P.George
Giri and Mr.K.K.Mishra,
Advocates for respondent
no.4 in W.P.(C) No.
2508/2011.
Mr.Ashish Kumar Srivastava
for Mr.Jatan Singh, CGSC for
the respondent-UOI in
W.P.(C) No. 2508/2011.
Mr.P.Mahapatra and
Ms.Rajdipa Behura,
Advocates for the respondent
No.2-UOI in W.P.(C) No.
2796/2011.
W.P.(C) No.2508/2011 Page 1 of 30
AND
W.P.(C) No.2796/2011
Dr.Nidhi Ahuja ... Petitioner.
Through: Mr. S.D. Salwan and
Mr.NeerajChaudhary,
Advocates.
versus
Guru Gobind Singh Indraprastha
University and Ors. ....Respondents
Through: Mr.Amit Kumar, Mr.Ashish
Kumar and Mr.Jawahar
Narang, Advocates for the
respondent-MCI.
Mr.P.Mahapatra and
Ms.Rajdipa Behura,
Advocates for the respondent
No.2-UOI.
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
W.P.(C) No.2508/2011 Page 2 of 30
KAILASH GAMBHIR, J.
*
1. By this petition filed under Article 226 of the
Constitution of India, the petitioners seek direction to direct
the respondent No.1 to accept the examination result of the
petitioners and on their merit offer the petitioner in WPC No.
2508/11 Post Graduation Course of MD in Medicine and the
petitioner in WPC No. 2796/11 Post Graduation Course of MD
in Gynecology for the academic year 2011-2012.
2. Adumbrated facts of the two petitions are:
WPC No 2508/11
The petitioner herein appeared for the Post Graduate Medical
Entrance Examination in 2010, however the question paper
being erroneous, writ petitions were filed before this court
where re-test was ordered and thereafter counseling was
conducted and the petitioner was offered MS ENT, which was
not a stream of his choice but however he took provisional
admission under protest. After taking admission, the
petitioner preferred a writ petition bearing WPC No.
4283/2010 before this court alleging discrimination that the
candidates belonging to reserved category but not possessing
the relevant documents were given preference over the
petitioner who belongs to the general category, which vide
order dated 31.8.2010 was dismissed, and the said order was
challenged by the petitioner in the LPA 802/2010 during the
pendency of which the petitioner withdrew his admission from
the said course and was returned his original documents vide
order dated 10.1.2011. On a subsequent application filed by
the petitioner, the court vide order dated 15.2.11 held that
the bond money of Rs. 3 lac be not recovered from the
petitioner. Thereafter the petitioner appeared in the entrance
test for the next academic session of 2011-2012 where he got
the 28th rank and on appearing for counseling, the respondent
No.1 refused to grant admission on the ground that the
petitioner had taken admission in the previous year. Feeling
aggrieved with the said act of the respondent No.1, the
petitioner has preferred the present petition.
WPC No. 2796/11
The petitioner herein had also appeared for the Post Graduate
Medical Entrance Examination in the year 2010 and had got
admission in MD(Pathology) which was not a stream of her
choice and thus had withdrawn her admission on paying the
bond money of Rs. 3 lac and again appeared in the entrance
examination for the 2011 session wherein her rank was 47.
Thereafter on appearing for counseling, she was refused
admission by the respondents on the ground that she had
already taken admission in the previous year and hence is
debarred from taking admission in the present year. Feeling
aggrieved with the same, the petitioner has preferred the
present petition.
3. Arguing for the petitioners, Mr.S.D.Salwan,
learned counsel submitted that there is no embargo as per
the Admission Brochure, Medical Council of India Rules or
any other law to deny admission to the petitioner in the
following year after the petitioners had surrendered their
seats in the previous year. Counsel also submitted that the
only penalty provided in the said admission brochure is that if
such a candidate surrenders his/her seat then he/she will have
to forfeit the bond amount of Rs. 3 lacs and which the
petitioner in the writ petition no. 2796/2011 had forfeited
while in the other petition bearing no. W.P.(C) No. 2508/2011
the respondent-University had agreed not to forfeit the bond
amount. Counsel also submitted that no undertaking in the
format (Annexure-I) was obtained from the petitioners and in
view of non-submission of the said undertaking by these
petitioners, the embargo laid down in clause 6.2.4 would not
operate against the petitioners and therefore, there was no
bar on the petitioners to appear in the next year after having
surrendered their seats in the previous year. Referring to
clause 6.2.4 of the Admission Brochure, the counsel
submitted that the said clause only envisages that the
candidates who are already admitted to any post graduate
medical degree or diploma course as on the date of the
counseling, will not be eligible for admission. The contention
of the counsel for the petitioners was that as regards these
petitioners, none of them were admitted in any of the post
graduate medical degree or diploma course as on the date of
the counseling because of the fact that they had surrendered
their seats in the previous year, therefore, this clause 6.2.4
would not come in the way of the respondent to deny
admission to the petitioners. Mr.S.D.Salwan further submitted
that Dr.Nidhi, petitioner in W.P.(C) No. 2796/2011, joined
the course on 31.05.2010 and surrendered the seat on
29.06.2010, while Dr.Muveen, petitioner in W.P.(C) No.
2508/2011 joined the course on 31.05.2010 and he remained
with R.M.L.Hospital till August, 2010, whereafter he stopped
working and then ultimately he surrendered the said seat on
10.01.2011.
4. Mr. Mukul Talwar, learned counsel for the
respondent University on the other hand submitted that
although there is no specific clause in the brochure requiring
the candidate to furnish an undertaking but the undertaking
itself is a part of the brochure as Annexure-1 and reference
to the same undertaking has been made in the format of
surety bond as Annexure-3 . Counsel further submitted that
the said surety bond was admittedly signed by these
petitioners and therefore, the petitioners cannot raise the
plea that they were not bound by the terms of the said
undertaking. Counsel further submitted that even in a case
where the candidate has not executed an undertaking but
still the same would be binding upon him as it would be
deemed to be an oral undertaking given by the candidate
after the candidate has executed the surety bond.
Mr.Talwar also submitted that simply because the original
documents were returned to these petitioners that would not
mean that they could not be debarred in terms of the
undertaking which puts a bar on a candidate not to seek
admission for the duration of the course.
5. Mr.Amit Kumar, learned counsel appearing for the
respondent-MCI submitted that the deterrent factors of
forfeiture of the bond money, retention of original documents
and depriving the student to appear in the same course
during the duration of the said course were introduced to
achieve the main objective that the seat should not go waste.
Counsel also submitted that this mechanism is in place as it
serves a larger public interest.
6. Dr.M.P.Raju, learned counsel appearing for the
respondent No.4 in W.P.(C) No. 2508/2011 submitted that the
entire scheme is indeed in the larger public interest with the
aim that the precious seat in the PG course should not go
waste. Counsel also submitted that pursuant to the directions
given by the Hon‟ble Division Bench on the application of the
petitioner in WPC No. 2508/11, the bond money was ordered
to be released in his favour and the original documents were
returned to him, but that would not mean that the petitioner
would become entitled to appear in the said course during the
duration of the said course. Counsel also submitted that even
if there was any lapse on the part of the University in
releasing the bond money or in returning the original
documents to the petitioner against the terms of the
brochure, then the same should not deprive the respondent to
pursue his study as he has already started appearing in the
said course.
7. I have heard learned counsel for the parties at
considerable length and given my serious thoughts to the
pleas raised by them.
8. Both the petitioners before this Court had
participated in the counseling held in last year for academic
session 2010-2011 wherein the petitioner in WPC No. 2508/11
was offered a seat for the Post Graduate Medical Course in
the stream of ENT while the petitioner in the WPC
No.2796/11 was offered a seat for the said course in the field
of Pathology. Both these petitioners were not satisfied with
the said subjects offered to them and, therefore, both of them
withdrew from their respective admissions. The petitioner in
WPC No.2508/11 had resigned from the said course on
10.1.2011 and the original documents submitted by him were
returned to him pursuant to the directions given by the
Hon‟ble Division Bench of this Court without insisting the
petitioner to deposit the bond amount of Rs. 3 lacs. The other
petitioner in WPC No. 2796/11 had resigned on 29.6.2010 and
the respondent-University had encashed the bond amount of
Rs. 3 lacs deposited by her. After having resigned from their
seats, both these petitioners had appeared in the entrance
examination to seek admission for the post graduate
degree/diploma course in Guru Gobind Singh University for
the next academic year i.e 2011-12 and both these
petitioners were given necessary admit cards by the
University to appear in the said examination. A total of 119
students had appeared in the said examination for the
academic year 2011-12 and out of the same, 102 students
were declared successful. The petitioner in WPC No. 2508/11
was ranked at 28 in the merit list, while the petitioner in WPC
No 2796/11 was ranked 47 in the merit list. Both these
petitioners had participated in the counseling which was
scheduled for 15.04.2011 and as per the rank of the petitioner
in WPC No. 2508/11 he would have got the stream of his
choice i.e. Medicine, the stream according to his said rank,
while the petitioner in the WPC No. 2796/11 would have got a
seat in the stream of Gynecology, according to her position in
the merit list. However, to the utter shock of both these
petitioners, they were declined admission as they were found
ineligible to appear in the said examination or to participate
in the counseling on account of the fact that they had
surrendered their respective seats after the admission in the
academic session 2010-2011 and, therefore, could not have
appeared in any such examination before completion of
duration of the course.
9. Mr.S.D.Salwan, learned counsel appearing for both
the petitioners vehemently argued that there is no clause in
the Admission Brochure of the respondent-University which
can put any embargo on the right of the petitioners to appear
in the said examination for the academic year 2011-12 after
having surrendered their respective seats in which they were
admitted in the last year. Counsel also contended that both
these petitioners did not furnish any undertaking as per the
proforma Annexure A-1 attached with the said Admission
Brochure and, therefore, the rigour of said undertaking could
not have been invoked by the University against these
petitioners. Counsel also took a stand that the restriction
placed by the respondent-University on the right of the
petitioners in the form of declaration does not flow from any
of the clauses contained in the brochure and, therefore,
unless filling of such undertaking flows from any substantive
clause of the main brochure, no restriction can be placed on
the right of the petitioners to deprive them in their
subsequent entrance test after having surrendered their seats
in the previous year. Counsel for the petitioners also took a
stand that as on the date of the counseling for the year 2011-
12, the petitioners were not admitted to any post graduate
medical degree/diploma course and, therefore, they were fully
eligible to seek admission for the academic year 2011-12 in
terms of clause 6.2.4 of the Admission Brochure of the
University.
10. Before I deal with the rival contentions raised by
counsel for the petitioners, I deem it appropriate to reproduce
the relevant clauses of the said Admission Brochure as under:-
"6.2.4 Candidates who are already admitted to any Post Graduate
Medical Degree/Diploma Course in any University/Institution as
on the date of counseling will not be eligible for admission.
Candidate will be required to give an undertaking in the proforma
as per Annexure-I.
.........
9. SUBMISSION OF APPLICATION FORM
9.1 The Application Form, complete in all respects in the sealed
printed envelope given along with Admission Brochure-IV,
should be submitted by hand at the University counter or it may
be sent by Registered/Speed Post so as to reach the Controller of
Examinations, Administrative Block, Guru Gobind Singh
Indraprastha University, Kashmere Gate, Delhi - 110 403 latest
by 4.00 p.m. of 26th March, 2010.
Note
After the last date is over, Application Form sent through
Registered/Speed Post/Courier or by any other means will not be
accepted, irrespective of the date of dispatch of the form by the
applicant. Therefore, candidates are advised to submit their
applications at the earliest, instead of waiting for the last date.
............
14. COUNSELLING FOR ADMISSION
14.4 (iii) At the time of reporting for the counseling session, the
candidate shall produce the original certificates and one set of
photocopies thereof duly attested by a Gazetted Officer or from
Principal of School/College last attended. If the candidate is
granted admission, the original and attested photocopies of the
documents will be retained by the University. The original
documents will be sent to the respective institution and will be
retained by them till the completion of course.
................
15. WITHDRAWL OF ADMISSION AFTER FIRST
COUNSELLING AND REFUND OF FEE
(i) The candidates after getting admission in first counseling will
be allowed to withdraw the admissions upto 5.00 p.m of
10.05.2010. All the requests for withdrawal of admission in the
prescribed proforma (Appendix-II) are to be submitted at the
Reception Counter, Academic Branch, Room No.108,
Administrative Block, Guru Gobind Singh Indraprastha
University, Kashmere Gate, Delhi110403. A proper receipt for
withdrawal will be issued. The candidates will be required to
surrender the original Admission Slip issued at the time of
Counselling/Admission (BOTH COPIES) while applying for
withdrawal of admission. No request for withdrawal of admission
would be entertained without both copies of admission slip.
..........
20. BOND
20.1 A bond of Rs.3.0 lacs on a non judicial stamp paper with
two sureties will have to be submitted by the each candidate at the
time of Counselling in the prescribed format as per Annexure III.
20.2 The Bond Money of Rs. 3.0 lacs shall be paid by the
student to the Institution under the following circumstances:
(i) If the student does not join the course at the allotted
institution on or before the stipulated date.
(ii) If the student leaves the course before its completion.
(iii) If the admission/registration of the student is
cancelled/terminated by the University on account of
unsatisfactory performance/misconduct/indiscipline.
20.3 Such students who withdraw their admission by due date
i.e. 10.05.2010, in the manner as laid down in para 14.0 above,
then the Bond submitted by them during first counseling shall be
treated as null and void.
20.4 The Original Certificates of the student would be kept in the
custody of the admitting institution and would be returned only
after completion of the course or on payment of Bond money, as
the case may be."
Besides the above clauses, two important Annexures attached
with the said brochure are declaration to be furnished by the
candidate and the surety bond to be executed by the
candidate. The said formats are also reproduced as under:-
Annexure-I
DECLARATION BY THE CANDIDATE
a. I,-----------------------------------------------(name) son/daughter of
Smt.----------------------------------and Shri---------------------------
-------------------resident of--------------------------------------------
--------------hereby, solemnly and sincerely affirm that the
statement made and information furnished by me in the application
form is true and correct. I have not concealed any information. If
any information furnished, herein, is found fraudulent, incorrect or
untrue, I understand that I am liable to criminal prosecution, and I
also agree to forego my seat in Post Graduate Medical
Degree/Diploma course. Further I am liable to be punished by the
University and the selection and admission to the course is liable to
be cancelled. I agree to abide by the Rules and Regulations
governing the Examination as contained in the Admission Brochure-
IV.
b. In case, I fail to join the course offered to me and accepted by me
within the prescribed date, my selection/registration to the said
course be treated as cancelled.
c. I undertake that in the event of my admission to any
Degree/Diploma course I will not apply for or accept admission to
any course in any University/Institution till I complete the course to
which I am admitted on the basis of this application. I further
undertake that in the event of my resigning the course concerned
to which I am admitted, I will not appear in the next and
subsequent Entrance Tests, till the duration of the course
concerned is over.
d. I undertake that in the event of my selection for a Post Graduate
Medical Degree/Diploma Course, I shall deposit all my original
certificates alongwith a Surety Bond of Rs.3.0 lacs. In the event of
(i) my not joining the course at the allotted institution on or before
the stipulated date (ii) leaving the course before its completion and
(iii) cancellation/termination of my admission/registration by the
University on account of unsatisfactory
performance/conduct/discipline, I will deposit a sum of Rs 3.0 lacs
in the institution where I am enrolled to redeem my original
certificates.
e. I agree to undergo the said course on full-time basis and shall not
engage myself in practice or any part-time/full-time job during the
period of the course and if I do so, my name may be removed from
the rolls of University.
f. I am aware that the University can remove my name from its rolls
in case my work is not reported satisfactory by my
Supervisor/Head of the Institution.
g. On admission, I shall submit myself to the disciplinary jurisdiction
of the Vice Chancellor and the several Ordinances, the rules and
regulations that have been framed by the University from time to
time.
Signature of
Candidate________
Name
Dr./Ms./Mr.___________
Address for
communication_____
_______________________
____
Dated___________
Place___________
EMPLOYER'S CERTIFICATE FORM
(FOR CANDIDATES WHO ARE IN SERVICE)
I am forwarding, herewith, the application for admission to the Post
Graduate Medical Degree/Diploma courses in respect of
Dr./Mr.?ms.____________________who is a full-time employee in this
organization w.e.f.________________ and has been working as
___________________(Please give designation) and his/her
emoluments, including D.A., C.C.A and H.R.A etc. and are
Rs ________________.
If he/she is selected by the University for admission, he/she will be
relieved to join the above course as a full time/regular student in the
institution assigned to him/her by the stipulated date of joining the course
concerned.
Note: The relieving certificates will also be sent to the University before
the candidate joins the course concerned by the stipulated date.
Dated.___________
Place ____________ Signature of the Officer
Name__________
Designation_______
Official Seal
Annexure III
SURETY BOND
In pursuance of my undertaking given on_____________(date) this
Surety Bond, hereafter the bond, is executed at Delhi on
this____________(date & month) day of ____________(year) by
Ms./Mr./Dr.________________son/daughter of
Smt.________________________ and
Sh.______________________hereafter the student, admitted in
______________________(name of the course), hereafter the course at
______________________(name of the institution) hereafter the
institution, in favour of Registrar, Guru Gobind Singh Indraprastha
University and the Principal/Dean/Director of _________________ (Name
of the institution).
Whereas, the student has applied and has been admitted in the
course, a Post Graduate course, being conducted by the Guru Gobind
Singh Indraprastha University, Delhi.
Whereas on the basis of the merit, the student was offered various
course(s) at various institution(s) available at the time of his/her
counseling and he/she has voluntarily opted for the course at the
___________________ (name of the institution) and he/she admitted in
the course at the institution with the understanding and subject to the
undertaking that the student shall undergo the course on full-time and
regular basis and shall maintain the required standard of performance and
shall not indulge in indiscipline/misconduct.
The student has, therefore, agreed to be loyal to pay a sum of Rs
3.0 lacs (Rupees Three Lacs only) to the institution under any of the
following circumstances:-
A. If the student does not join the course at the allotted institution on
or before the stipulated date.
B. If the student leaves the course before its completion.
C. If the admission/registration of the student is cancelled/terminated
by the University on account of unsatisfactory
performance/misconduct/indiscipline.
Whereas the student undertakes that till the entire surety amount
Rs 3.0 lacs (Rupees Three lacs only) is paid, the institution and/or the
Guru Gobind Singh Indraprastha University shall have the right to retain
the original certificates of the student.
Whereas I have requested Ms./Mr.______________son/daughter
of Smt.____________________and Sh.__________________resident of
__________________________.
And
Ms./Mr.______________son/daughter of
Smt.____________________and Sh.__________________resident of
__________________________ to stand as sureties severally and jointly
for me for the payment of the said amount.
Signature of the Student
Name__________
Date__________
Place__________
As would be seen from the above guidelines laid down by the
University in their brochure, the University has given every
bit of information under the following heads:-
(i) Details of the courses
(ii) Eligibility
(iii) Criteria
(iv) Essential qualifications
(v) The manner of submission of application forms
(vi) Selection procedure
(vii) Counseling for admission etc.
11. In the present case, this Court is primarily
concerned with the interpretation of clause 6.2.4 and also as
to whether the University can decline admission to any
student from appearing in the entrance examination in the
ensuing year after such a student had withdrawn from
admission in the previous year after forfeiting the bond money
of Rs. 3 lacs. Clause 6.2.4 quite explicitly states that the
candidates, who had been already admitted to any post
graduate medical course in any of the University/institution as
on the date of the counseling, will not be eligible for
admission. It is not the case of the petitioners that they were
not admitted to any post graduate medical course in the
previous year. This admission referred to in clause 6.2.4 of
the Admission Brochure cannot be interpreted as sought to be
interpreted by the counsel for the petitioners that such an
admission should subsist on the date of the counseling itself.
If such an interpretation is accepted then the same would
defeat the very objective and spirit of the said clause which is
to discourage the students to surrender their seat in the mid-
stream and if they want any change then they will have to
wait for the duration of the course to be completed. I am quite
in agreement with the counsel for the respondent-University
and counsel for the respondent No.4 that the entire scheme of
putting such an embargo is in the larger public interest so
that the precious seat in the PG medical course does not go
waste.
12. Despite scores of lucrative career options available
to the students today, be it in the field of law, management,
engineering etc. the longing to seek admission in the field of
medical science has not diminished and in fact is ever
escalating. Post graduate course is the next step after a
student gets the MBBS degree and there is an insane
competition to seek admission in the post graduate medical
courses. Undeniably, many of the students do not get
admission in their preferred streams and, therefore, they are
left to opt for one or the other stream unwillingly on account
of their rank/position in the merit list. Preference is the
monopoly of those who are in the cartel of high rank holders
in the merit list, while others have to make compromises with
no option left with them except to try their luck by competing
again in the following year. If any student feels that he is not
able to get the stream of his choice then this decision must be
taken by him/her before seeking admission in the course or in
the alternative if taken admission, to at least withdraw from
the admission well within the timeframe of withdrawal laid
down by the University in the Admission Brochure. Once
having not withdrawn from the admission before the dead line
stipulated in the Admission Brochure, then the student cannot
escape from the recited consequences, which as per the said
brochure are forfeiture of the amount of the bond money in
terms of clause 20 and a clear prohibition to appear in the
subsequent entrance test till the duration of the course
concerned is over in terms of undertaking/declaration. This
restriction as placed in the undertaking read with clause 6.2.4
no doubt looks harsh as it debars a student not to appear in
any entrance test for the entire duration of the course, but the
said restriction cannot be viewed in isolation, as through this
restriction a greater objective in the larger public interest is
being achieved i.e. to see that the precious medical seat does
not go waste. It cannot be lost sight of the fact that
substantial public funds are spent by the
Government/Municipal hospitals for every such seat in a
professional course and squandering of any seat not only
deprives and defeats the valuable right of the student next
standing in the queue but also results into large public money
spent by the institution in the creation of such a seat going
down the drain. Viewed from prism of larger public interest,
such a restriction placed on a student cannot be considered as
unreasonable, that too when a student is fully conscious and
well versed with the consequences that he would entail of
seeking admission in the stream of course assigned to him in
the counseling as per his rank in the merit list and then
withdrawing from the same as it is not the stream he wishes
to specialize in. In a country whose doctors are asset of the
entire Medical profession all over the world, each and every
seat is to be treated like a treasure and cannot in any
circumstance be allowed to be abandoned, marring not only
the fate of the next deserving and righteous candidate but
also plundering of the public funds invested in the seat.
13. The Hon‟ble Apex Court in the case of Mabel vs.
State of Haryana and Ors. (2002)6SCC318, while
interpreting the clause in the information brochure depriving
a student to seek admission in the course for all times to
come, took a view that such a bar will cease to operate after
the duration of the course of his stream comes to an end and
while taking this view the Court held that such a clause in the
brochure is in public interest, otherwise it will result in the
wastage of the seat in the course and further such a change
would deprive another eligible candidate from seeking
admission to other courses. Relevant para of the said
judgment is reproduced as under:-
"5. A plain reading of the aforementioned clause shows that a
candidate who was already admitted in a medical or dental college
would be ineligible for admission in the other course. The said clause
at times will operate harshly as in the case of the petitioner but it is
meant to ensure that a candidate who has already secured admission
should not abandon the studies after the commencement of that
course to seek admission in another course which is in public
interest, for otherwise it would result in the wastage of the seat in
the course in which he has taken admission, and further, such a
change would deprive another eligible candidate from seeking
admission to the other course. Obviously, the intention of the
authority concerned in framing clause 18 appears to be to ensure
that a candidate who has already secured admission with his free will
in any course (MBBS or BDS) should complete that course and
should not change his mind in midstream. It, therefore, follows that
the bar is intended to be operative during the period of the course in
which a candidate has taken admission. After completing that course
or in the event of abandoning the course (MBBS/BDS) and not
studying for the normal period (4/5 years, as the case may be) the
candidate would become eligible after the end of such period of the
course to seek admission in the course of his choice provided other
conditions of admission are satisfied. In other words, the bar under
clause 18 in this case will cease after the BDS course for the
academic year 2000-01, in which the petitioner has taken admission
comes to an end after 5 years. In the light of the above observations
the petitioner will be free to seek admission in the course of her
choice after the end of the BDS course which commenced in 2000-
01."
Although in the above cited case of Mabel's case (supra),
the Apex Court was dealing with a clause existing in the
brochure which puts a bar on the student to appear for
admission in the said course and in the present matter the bar
comes through a declaration/undertaking which was not even
executed by both the petitioners. Clause 6.2.4 puts an
obligation on the student to give an undertaking in the
proforma as per Annexure A-1 which clearly states that the
„candidate will be required to give an undertaking‟. There is
thus no escape for a candidate as it is imperative, rather
incumbent upon each and every student to furnish such an
undertaking in terms of the format attached with the
brochure and simply because the student has failed to execute
the undertaking or the same was not insisted upon by the
University would not place him in any advantageous position.
Clause 9 of the brochure clearly envisages that the
application should be complete in all respects and non-filing
of such an undertaking by a student would be clearly in
violation of clause 9.1 of the brochure, as such a form will be
an incomplete form. Further, reference to such an
undertaking in the surety bond is also manifest of the fact
that the undertaking has to be executed at the time of
submission of the application form, while the bond has to be
executed at the time of counseling. The language of the
proforma of the surety bond starts with "In pursuance of my
undertaking given on (date) this surety bond, hereafter the
bond, is executed at Delhi on this____________(date and month)
day of......................". It would be thus seen that execution of
an undertaking is a pre-requisite for the submission of the
application form. Since both the petitioners took admission in
their respective post graduate degree/diploma courses and
had also executed surety bonds and, therefore, they can be
deemed to have executed the said undertakings as per the
proforma attached with the brochure and in the absence of
the same they could not have taken the said admission in their
respective courses. Laxity on the part of the respondent-
University in not insisting upon the petitioners to submit the
said undertakings will not help the case of the petitioners as it
was a duty cast upon the students to execute such an
undertaking seeking admission in the P.G. course.
14. Having said so, this Court is of the view that on a
conjoint reading of clause 6.2.4 and the said undertaking and
also the fact that the petitioners were duly admitted in their
said respective courses of P.G. degree/diploma, therefore,
clearly they were not entitled to appear in the entrance
examination for the P.G. degree/diploma course for the
academic year 2011-12 and, therefore, these petitioners were
rightly denied the admission by the University at the stage of
their participation in the counseling.
15. The contention of counsel for the petitioner in
W.P.(C) No.2508/2011 that he was forced to take admission in
ENT stream and his admission was provisional or he had
withdrawn from the said provisional admission during the
pendency of the LPA with liberty to take fresh examination or
he was returned the original documents without the
respondent insisting upon encashing the amount covered
under the surety bond would not help the case of the
petitioner, as nowhere the respondent-University took a stand
that the petitioner would be permitted to appear in the next
entrance test in complete violation and derogation of the
scheme laid down in the Admission Brochure of the
University. Similarly, the petitioner in W.P.(C) No.2796/2011
also cannot be placed in any advantageous position simply
because she had paid the bond amount of Rs. 3 lacs. The only
benefit that can be taken by paying the bond amount is that
such a student will be returned the original documents,
otherwise as per clause 20.4 the respondent-University has
every right to retain the original documents as well till the
completion of the entire course.
16. In the light of the aforesaid discussion, I do not
find any merit in the present petitions and the same are
hereby dismissed.
17. In view of the dismissal of the present petitions,
the interim order dated 25.4.2011 shall become inoperative.
June 3, 2011 KAILASH GAMBHIR, J
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