Sagar Setia vs Delhi Technological University
2011 Latest Caselaw 1297 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 4th March, 2011.

+                  W.P.(C) 243/2011 & CM No.439/2011 (for stay)

%        SAGAR SETIA                                          ..... Petitioner
                            Through:      Mr. Laliet Kumar with Mr. Deepak
                                          Vohra, Advocates.

                                   Versus

         DELHI TECHNOLOGICAL UNIVERSITY           ..... Respondent
                     Through: Mr. Atul Nanda, Sr. Adv. with Ms.
                              Rameeza Hakeem, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner was admitted to B. Tech. course in Production &

Industrial Engineering (PIE) in the respondent University in August, 2010.

The prospectus for admission to the said course in Clause 3.12 thereof

provides as under:-

"3.12 Upgradation to a Branch of Higher Preference i. A candidate who has been admitted to a Branch other than his/her first choice will automatically be transferred, as per his/her merit in AIEEE-2010, to a Branch of his/per higher preference as indicated in his/her Application. The list of the students with upgraded branches will be displayed periodically. Notifications in this respect will be issued by the Chairman, B.Tech. Admission Committee.

ii. Freezing In case a candidate desires to continue in the branch allotted to him/her at the time of admission or a subsequent upgradation, other than his/her highest preference indicated in his/her Application then he/she must submit, a request in the prescribed proforma to the Chairman, B.Tech. Admission Committee for freezing the same. Similarly a branch once upgraded, the new allotted branch may also be got freezed within one day after the upgradation. Any freeze request made later may not be entertained.

iii. Once an upgradation list is issued, it is mandatory for the students to shift to the new branch. Request for reversion to the old branch will not be entertained.

iv. The syllabus for first semester for all the branches is the same.

No change of section will be done during the first semester classes. Once the final upgraded list is displayed (likely on 31.12.2010), the change of branches will be affected immediately, as per the final list. No. change/shift will be allowed thereafter."

The petitioner was on 1st September, 2010 upgraded to B.Tech,

Software Engineering (SE) which as per the admission form filled up by the

petitioner was higher in preference to B.Tech. (PIE).

2. The petitioner on 20th December, 2010 submitted an application to the

respondent for being shifted to B.Tech., Civil Engineering (CE). It is not in

dispute that B.Tech. (CE), in the admission form filled up by the petitioner

was lower in preference to B.Tech. (PIE) and B.Tech. (SE). Upon no

response being given to the said application of the petitioner and upon the

said request having not been acceded to, this writ petition was filed seeking

mandamus against the respondent University to shift the petitioner to

B.Tech.(CE).

3. Since the petitioner rather than seeking a course of higher preference

was seeking the course of lower preference, notice of the writ petition was

issued and the counsel for the respondent appearing on advance notice

directed to obtain instructions. The counsel for the respondent University on

the next date informed that there was no seat available in B.Tech. (CE)

which the petitioner was seeking. The counsel for the petitioner then sought

relief of being shifted to B.Tech. (Environmental Engineering) (EE) in

which seats were stated to be available. It was also informed that B.Tech.

(EE) was a lower preference in the admission form filled up by the

petitioner to even B.Tech. (CE).

4. The counsel for the respondent University however on the next date

i.e. 4th February, 2011 informed that the petitioner could not be shifted to

B.Tech. (EE) also for the reason of same being not permissible under the

Policy of the respondent University and also for the reason of the second

semester by then being underway. In the circumstances, counter affidavit

was directed to be filed.

5. The counsel for the petitioner and the senior counsel for the

respondent University have been heard.

6. The opposition by the respondent University to the writ petition is

simple. It is contended that the prospectus for admission does not provide

for any down grading or permit seeking of a course of preference lower than

the one allotted and as such no mandamus contrary to the admission

procedure can be issued. It is further contended that in any case, the

prospectus provides that no change or shift will be allowed after 31 st

December, 2010 and now when the second semester is also over by more

than half, the change ought not to be ordered.

7. Per contra the counsel for the petitioner has contended that there is no

prohibition in the prospectus to down grading. It is contended that in the

absence of a prohibition, the Rule of Merit should prevail. It is argued that

since those with rank lower than of petitioner in the AIEEE-2010, on the

basis whereof admissions are made to the respondent University also, have

been admitted to B.Tech. (CE), there is no reason for depriving the

petitioner having a higher rank from the said course. Reliance in this regard

is placed on paras 18 to 20 and 23 of the judgment of the Division Bench of

this Court in Aman Ichhpuniani Vs. The Vice Chancellor, Delhi University

71 (1998) DLT 202 and on the judgment of another Division Bench of this

court in Rajive Goyal Vs. University of Delhi 1993 (27) DRJ 242 and the

Full Bench judgment of this Court in Dr. Veena Gupta Vs. University of

Delhi AIR 1994 Delhi 108.

8. The Rule followed by the respondent University is that a student is

bound by the preference of courses filled up in the admission form and

thereafter the inter-course migration is permitted only in accordance with the

said preferences so filled up, with the student becoming eligible for a higher

preference upon a vacancy therein. The Rule is not of allowing the students

to change their preferences. The senior counsel for the respondent

University is thus right in contending that the relief claimed by the petitioner

is contrary to the admission procedure prescribed by the respondent

University.

9. The Supreme Court in Maharishi Dayanand University Vs. Surjeet

Kaur JT 2010 (7) SC 179 has held that no mandamus directing educational

institutions to act contrary to their rules, can be issued in exercise of

jurisdiction under Article 226 of the Constitution of India.

10. The Division Bench of this Court in judgment dated 3rd March, 2011

in LPA No.599/2010 titled Varun Kumar Aggarwal Vs. UOI has also held

the prospectus to be binding. The same view was taken by undersigned in

Ms. Jyoti Yadav Vs. GNCTD MANU/DE/2728/2010

11. As far as the argument of there being no prohibition of migrating to

lower preference and of the Rule of Merit is concerned, normally a student

has no right to change the course to which he is admitted, save in

accordance with the Rules of the educational institutions. The Rules in the

present case prescribe moving up the preference scale and do not provide for

moving down the preference scale filled up at the time of admission. The

Clause 3.12 setout hereinabove shows that the movement is automatic and a

student has no option in the matter. The entire said procedure would be

obstructed if it were to be read therein that the movement in the opposite

direction is also permissible.

12. I also do not agree with the contention that the principle of merit can

be applied in the present facts. It is open to a student to choose a particular

stream and the perception of which course is better, may vary not only from

student to student but also from time to time. The petitioner himself has

changed his perception since the time of filling up the admission form. It

thus cannot be said that the conduct of University is contrary to Rule of

preference to be given to merit. Rajive Goyal was seeking migration to the

Medical College of higher preference. Similarly, the judgment of the Full

Bench is not found to be apposite to the facts of the present case.

13. The counsel for the petitioner has also argued that the petitioner

having not applied for freezing in terms of Clause 3.12 (ii) (supra) of the

prospectus had indicated intention to change. However in view of what has

been held above, the petitioner without applying for freezing was to

automatically get higher and not lower preference.

14. The counsel for the petitioner has also urged that the syllabus even in

second semester is not vitally different and there will be no difficulty in

petitioner being permitted to change even now. Once the respondents are

found to have acted in terms of their prospectus, all this is irrelevant.

15. The petitioner is therefore not found entitled to the relief claimed, the

writ petition is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 04, 2011 bs