Dr. Muveen Kumar vs Guru Gobind Singh Indraprastha ...
2011 Latest Caselaw 3050 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 15th June, 2011.

+                           LPA No. 545/2011

%        DR. MUVEEN KUMAR                            ..... Petitioner/Appellant
                     Through:             Mr. Sushil S. Salwan with Mr. Aditya
                                          Garg, Advocate.

                                      Versus

    GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
    & ORS.                                     ..... Respondents
                 Through: Mr. Sradhananda Mohapatra for Mr.
                           Mukul Talwar, Advocate for R-1.
                           Mr. Rajesh Katyal, Adv. for R-2
                           Mr. Ritesh Ratman & Ms. Rekha
                           Bakshi, Adv. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE G.P.MITTAL

1.       Whether reporters of Local papers may                      Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?               Yes

3.       Whether the judgment should be reported              Yes
         in the Digest?




LPA No. 545/2011                                                      Page 1 of 16
 RAJIV SAHAI ENDLAW, J.

1. The challenge is to the judgment dated 3rd June, 2011 of the Ld. Single

Judge dismissing W.P.(C)2508/2011 preferred by the petitioner along with

W.P.(C)2796/2011 preferred by one Dr. Nidhi Ahuja and which petition

entailed similar controversy as in the petition preferred by the appellant

herein.

2. The challenge by the appellant in the writ petition preferred by him

was to the refusal of the respondent no.1 University to grant admission to the

petitioner in the Post Graduate Degree Courses in the field of Medicine in

the Academic Year 2011-2012 inspite of the appellant securing 28th rank in

the Entrance Test held and thus being eligible for admission, for the reason

of the appellant having withdrawn from admission secured by him to the

Post Graduation Degree course in the field of ENT in the respondent no.1

University in the previous Academic Year 2010-2011.

3. The Ld. Single Judge in the judgment impugned in this appeal held-

A. On analysis of the terms, clauses and conditions, contained in

the Admission Brochure of the said course (and which are

stated to be same for the Academic Year 2010-2011 and

Academic Year 2011-2012) that the objective and spirit thereof

was to discourage the students from surrendering their seat in

midstream and if they want any change then they have to wait

for the duration of the course to be completed and such an

embargo is in the larger public interest so that the precious seat

in the Post Graduate Medical Course does not go waste;

B. That though a student has a right of preference/selection of the

stream in which he/she wants to do Post Graduation but such

choice has to be exercised before seeking admission in the

course and if the student once takes admission and thereafter

withdraws from the course after the stipulated date (and which

has the effect of not allowing any other student to take

admission in his/her place and resultantly of waste of the seat in

that academic year) then the student cannot escape from the

consequences recited in the Admission Brochure i.e. of

forfeiture of the amount of the bond money and prohibition to

appear in the subsequent Entrance Test till the duration of the

course;

C. Though such a restriction is undoubtedly harsh but 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 seats do not go waste.

D. Substantial public funds are spent by the Govt. for each and

every seat in a professional course and squandering of any seat

not only deprives and defeats the valuable right of the student

next in queue but also results in large public monies spent by

the institution in the creation of such a seat going down the

drain. Thus, viewed from the prism of larger public interest,

such a restriction placed on a student cannot be considered as

unreasonable, that too when the student is fully conscious and

well-versed with the consequences;

E. Each and every seat in such course is to be treated like a

treasure and cannot 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;

F. Reliance was placed on Mabel v. State of Haryana (2002) 6

SCC 318.

4. The counsel for the appellant opened his arguments by contending that

one of us (Rajiv Sahai Endlaw, J) in judgment dated 9 th August, 2010 in

W.P.(C)4272/2010 titled Dr. Varun Kumar Agarwal v. Union of India (and

which was not referred to before the Ld. Judge) has held that to be ineligible

for admission, the candidate must be "pursuing" the Post Graduation course

elsewhere. It is urged that the appellant having withdrawn from the Post

Graduation course in which he was admitted in the previous year and having

not pursued the same, cannot be deprived of admission in the subsequent

year. It is further contended that the judgment of this Court in Dr. Varun

Kumar Agarwal (supra) was also followed by the Division Bench of the

Rajasthan High Court in judgment dated 5th October, 2010 in D.B. (Civil)

Special Appeal (Writ) No.509/2010 titled Dr. (Miss) Aditi Mittal v. Dr.

Subham Joshi.

5. Dr. Varun Kumar Agarwal was concerned with the Entrance

Examination held by the All India Institute of Medical Sciences (AIIMS) for

admission to Post Graduate courses. On an interpretation of the terms &

conditions of Admission Brochure of AIIMS, inter alia providing that the

candidates "who have already done/are pursuing MD/MS/MDS in any

subject at the time of counseling shall not be considered for admission", it

was held that the same did not bar those candidates who had taken admission

to Post Graduation course in other colleges but preferred to take admission

in AIIMS, as long as they were on the date of admission to AIIMS not

pursuing the Post Graduation courses anywhere else.

6. Thus the present case, which has been adjudicated by the Ld. Single

Judge on an interpretation of the terms & conditions of the Admission

Brochure of the respondent no.1 University and on the basis of which alone

the counsel for the appellant has made his contentions in appeal also, cannot

be said to be covered by the judgment in Dr. Varun Kumar Agarwal. I may

also mention that the Division Bench of this Court vide judgment dated 3 rd

March, 2011 in intra court appeal being LPA No.599/2010 preferred against

the judgment aforesaid in Dr. Varun Kumar Agarwal, though on an aspect

different from "pursuing", had allowed the appeal. The counsel for the

appellant also, upon being so informed, has not based his case on the

judgment in Dr. Varun Kumar Agarwal.

7. The argument of the counsel for the appellant is that in Clause 15 r/w

Clause 20 of the Admission Brochure of the respondent no.1 University, the

only consequence provided of withdrawal of admission is of forfeiture of the

bond required to be submitted of `3 lacs and it is nowhere provided that such

withdrawal of admission would also debar admission in the next academic

year. It is contended, i) that such debarment is contained in the Form of

"Declaration" required to be submitted by the candidates as per Clause 6.2.4

of the Admission Brochure; ii) that Clause 6.2.4 makes the candidates "who

are already admitted to any Post Graduate Medical Degree/Diploma Course

in any University/Institution as on the date of counseling" ineligible for

admission and requires the candidates to give an undertaking in the Form

aforesaid; iii) that the appellant herein as on the date of counseling in the

Academic Year 2011-2012 was not admitted to any Post Graduate Medical

Degree/Diploma Course having withdrawn from the admission secured in

the previous academic year prior thereto; iv) that the undertaking contained

in the Form 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" and which is sought to be

enforced against the appellant is beyond the terms of the Admission

Brochure; and, v) that the appellant at the time of admission in the previous

academic year in fact had not even furnished any such

Declaration/Undertaking.

8. The Ld. Single Judge has in the judgment impugned in this appeal

held that Clause 6.2.4. does not require that the admission should subsist till

the date of counseling and once an admission has been obtained, even if

subsequently surrendered before the date of appearing for counseling, would

make the candidate ineligible.

9. We are unable to agree with the said interpretation. Clause 6.2.4 uses

the expression "already admitted" and not merely "admitted"; the expression

"already admitted" coupled with "as on the date of counseling" does connote

that the admission secured should be continuing till the date of counseling.

Moreover Clause 14.3 providing for the procedure for "Counseling for

Admission" further provides that candidates who have already been offered

a seat at any Institution/College by any admission authority other than Guru

Gobind Singh Indraprastha (GGSIP) University will be required to submit a

"Surrender Certificate" and in case the same is not submitted the request for

attending the counseling would be rejected. Thus a distinction has been

made between candidates "already admitted" to any Post Graduation

Medical Degree/Diploma Course in any University/Institution as on the date

of counseling and candidates "who had already been offered a seat by any

admission authority other than GGSIP University". While the former i.e.

those who till the date of counseling are pursuing the course have been made

ineligible for admission, the latter i.e. those who had already been offered a

seat and have surrendered the same are eligible for admission subject to

submission of a Surrender Certificate.

10. However our aforesaid view would still not entitle the appellant to

succeed in the appeal. The appellant was admitted in the previous Academic

Year 2010-2011 on the terms and conditions contained in the Admission

Brochure and which required him to undertake that in the event of his

resigning from the course concerned to which he was admitted, he will not

appear in the next and subsequent Entrance Tests till the duration of the

course concerned is over. It is immaterial whether the appellant submitted

such an undertaking or not. His admission was on the said terms. The

appellant admittedly resigned from the course to which he was admitted in

the previous academic year. As per his undertaking, he was not entitled to

appear in the Entrance Test held in the Academic Year 2011-2012 and in

which he secured the high rank of 28. Thus the bar imposed/enforced by the

respondent no.1 University by refusing admission to the appellant in the

current academic year emanated not from any of the terms & conditions of

the Admission Brochure for the academic year 2011-2012 but from the terms

& conditions on which the appellant had secured admission in the previous

academic year and as per which he had agreed to the consequence of not

appearing in the Entrance Test in the subsequent years till the duration of the

course concerned was over. The high rank of 28 was secured by the

appellant in a Entrance Test in which he had undertaken not to appear. The

appellant having appeared in the Entrance Test in breach of his undertaking,

cannot benefit from the result thereof. Thus the reference by the counsel for

the appellant to the procedure of admission in the current academic year is

immaterial in as much as, as aforesaid the bar/prohibition emanates from the

resignation from the course to which the appellant was admitted in the

previous year.

11. We also do not find any merit in the contention of the counsel for the

appellant that non mention of such a condition in the eligibility criteria for

admission laid down in Clause 6 of the Admission Brochure and mention

thereof in the Form Annexure-I, has any consequences. Clause 6.2.4 deals

with two categories of candidates i.e. those already admitted as on the date

of counseling (and in which we have held the appellant not to fall) and

candidates who had secured admission in the respondent no.1 University in

the Post Graduation Diploma/Degree Course in the previous years and

resigned therefrom. Merely because the detailed terms & conditions instead

of being mentioned in Clause 6.2.4 itself, are mentioned in the Annexure

mentioned therein would be immaterial. The Admission Brochure is not to

be read and interpreted as statute. It is in the nature of the contract which a

student enters into with the University for admission and as per which

contract entered into by the appellant with the respondent no.1 University in

the previous Academic year 2010-2011, the appellant was not eligible for

even appearing in the Entrance Test in the Academic Year 2011-2012.

12. The counsel for the appellant has faintly also suggested that the

appellant was issued the Admit Card for the written test and was allowed to

appear in the written test and had thus been held to be eligible for admission

in the year 2011-2012. We do not find any merit in the said contention.

There is nothing to show that the respondent no.1 University was

empowered to waive the undertaking obtained from the students or that the

said undertaking was so waived. In fact there is nothing to show that the

appellant had made any such disclosure in applying for appearing in the

written test for the current academic year.

13. The counsel for the appellant has also urged that the appellant in the

previous Academic Year 2010-2011 was admitted on the very last date and

thus there was no possibility of his withdrawal from the admission so as to

enable the seat to be filled up by any other candidate. It is thus contended

that the wastage of the seat to which the appellant was admitted in the

previous year is not attributable to the appellant.

14. We do not find any merit in the said contention also. If the stream

offered to the appellant was not acceptable to the appellant, the appellant

ought not to have accepted the same, even if on the last date and in which

case it would have been offered to the next willing meritorious candidate. It

is further the case of the appellant himself that he had taken admission to the

Post Graduation course in the ENT stream in the Academic Year 2010-

2011during the pendency of W.P.(C) 4283/2010 then preferred by him. The

said writ petition was dismissed vide judgment dated 31 st August, 2010.

Thus the admission was taken by the appellant prior to the said date. Rather

it appears that admission was taken prior to 25th June, 2010. The appellant as

per his own averment withdrew from the said course only on 10th January,

2011. It is thus found that it was not as if the appellant resigned/withdrew

from the course to which he was admitted in the previous year immediately

after securing admission; he continued to pursue the said course for at least

six months. The appellant is thus squarely covered by the undertaking

aforesaid subject to which he had taken admission.

15. The counsel for the appellant has also contended that the appellant

would not be bound by the undertaking aforesaid since even the bond of `3

lacs furnished by him in the previous year was not enforced against him and

his educational certificates of eligibility for admission were also returned to

him. It is contended that had the respondent no.1 University intended to bind

the appellant with the undertaking aforesaid, the certificates would not have

been returned to the appellant.

16. The appellant had preferred an intra court appeal being LPA

No.802/2010 against the judgment dated 31st August, 2010 dismissing

W.P.(C) 4283/2010 (supra) earlier preferred by him. A perusal of the orders

in the said LPA shows that the respondent no.1 University had agreed to

return the certificates aforesaid without prejudice to its entitlement to invoke

the bond and the Division Bench of this Court had expressly permitted the

University to enforce the bond against the petitioner and allowed the

petitioner to defend the same. It thus cannot be said that for the reason of the

orders in LPA or for the reason of return of certificates, the appellant stands

relieved from the undertaking deemed to have been given by him while

securing admission in the previous year.

17. The other terms and conditions in the Admission Brochure relied upon

by the counsel for the appellant are of no avail, the bar against admission

invoked/enforced by the respondent no.1 University in the current academic

year emanating as aforesaid from the terms on which the appellant had

secured admission in the previous year. In fact the appellant was ineligible to

even apply or appear in the Admission Test in the current year and the terms

of the Admission Brochure of the current year are thus irrelevant. We

otherwise concur with the judgment appealed against.

18. We therefore do not find any reason for interfering with the order of

the Ld. Single Judge. The appeal is dismissed with no order as to costs.

RAJIV SAHAI ENDLAW VACATION JUDGE

G.P.MITTAL VACATION JUDGE 15th June, 2011/pp..