Arpit Singh vs Guru Gobind Singh Indraprastha ...
2011 Latest Caselaw 5707 Del

     *         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 24th November, 2011

+                                  LPA 899/2011

%        ARPIT SINGH                                            .... Appellant
                            Through:      Mr. Anil Goel, Adv.

                                       Versus

    GURU GOBIND SINGH INDRAPRASTHA
    UNIVERSITY & ANR.                        ..... Respondents
                  Through: Mr. Mukul Talwar, Adv. for R-1.
                           Mr. Laliet Kumar & Mr. Saurabh
                           Dhawan, Advs. for R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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?

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment dated 13.10.2011 dismissing

W.P.(C) No.8765/2010 preferred by the appellant. The counsels for the

respondents appear on advance notice. Considering the nature of the

controversy and the pleadings having already been completed in the writ

petition, we heard the counsels finally.

2. The appellant in the academic year 2009-10 was admitted to the

B.Tech (Computer Science Engineering) course of the Lord Institute of

Engineering and Technology (LIET), Hyderabad affiliated to Jawahar Lal

Nehru Technological University, Hyderabad. After completing the first year

of the course, he applied to the respondent No.1 Guru Gobind Singh

Indraprastha University (GGSIPU) for migration to the respondent No.2

Maharaja Agrasen Institute of Technology (MAIT) affiliated to the

respondent no.1 University.

3. The respondent No.1 University vide its letter dated 27.08.2010

approved the request of the appellant for migration, in the third semester,

from the LIET, Hyderabad to B. Tech. (Mechanical Engineering)

Programme (Second Shift) of MAIT for the Session 2010-11, subject to the

submission of the following documents / completion of formalities within a

fortnight from the date of issuance of the letter to enable the respondent

No.1 University to issue the enrolment number:

"1. Marksheet of 12th class with Minimum aggregate of 55% marks in PCM provided the candidate has passed in each subject separately. Candidate must additionally have passed English as a subject of study.

2. Marksheets of 1st year (1st and 2nd Semester) of B.

Tech. programme (the candidate must have cleared all the papers).

3. Fee receipt of `10,000/- (to be deposited in the University's Account Branch).

4. Fee receipt of `45,000/- along with additional fee, if applicable, (to be deposited at respective institute)."

The letter dated 27.08.2010 further provided:

"Any failure on the part of the candidate with respect to depositing the fee or submission of result as mentioned above shall result in automatic withdrawal of this offer for which the candidate will be responsible.

You are requested to submit the above mentioned documents at Academic Reception Counter, Room No.- 108, Administrative Block, GGSIP University for further action please."

4. The appellant, in the first year examination held by the LIET,

Hyderabad, though had passed in all the other subjects but had got

compartment in Engineering Drawing. It is the case of the appellant that he

was suffering from fever on the date of the said examination and which

affected his performance. The appellant appeared in the compartment

examination held by the LIET, Hyderabad in December, 2010 and in the

result whereof declared in January, 2011, he passed/cleared the said subject

also.

5. It is the case of the appellant that he had, while applying for

migration, informed the respondent No.1 University of his having obtained a

compartment in the Engineering Drawing examination and being eligible to

appear in the compartment examination scheduled for December, 2010. It is

further the case of the appellant that he on the basis of the letter dated

27.08.2010 of the respondent No.1 University, paid the fees and took

admission in respondent No.2 MAIT and from September, 2010 also started

attending the classes, appeared in the mid term examinations held in

October-November, 2010 and again in November-December, 2010 and also

deposited the examination fee with the respondent No.1 University and was

issued the admit Card for the Third Semester End Term Examination

scheduled in December, 2010.

6. The respondent No.1 University however vide its letter dated

16.12.2010, for the failure of the appellant to have submitted the documents

subject to submission whereof migration had been permitted, cancelled the

letter dated 27.08.2010 earlier issued permitting migration.

7. Upon the representations of the appellant having not met with any

success, the writ petition from order wherein this appeal has arisen was filed,

impugning the order dated 16.12.2010 of the respondent No.1 University

cancelling the migration of the appellant.

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

held, that the permission granted by the respondent No.1 University vide

letter dated 27.08.2010 for migration was subject to fulfillment of certain

mandatory conditions stipulated in the said letter; that the appellant did not

fulfill the said requirements and in fact was not even in a position to fulfill

the same inasmuch as he had not cleared all the papers of the first year (first

and second semester) of the B. Tech. programme and had a compartment in

Engineering Drawing; that the appellant knowing fully well the condition of

clearing all the papers of the first year, played a fraud upon the authorities in

submitting his marksheet although knowing fully well that he was not

eligible for the migration; the appellant had thus not approached the Court

with clean hands and was not entitled to any relief on this ground alone; that

the acceptance of fees by respondent No.2 MAIT from the appellant was of

no avail and did not create any rights in favour of the appellant; that the

appellant had obtained the admit card for the Third Semester End Term

Examination also by wrongfully filling up the column of enrolment number

when no enrolment number had been issued to him by the respondent No.1

University for the reason of his having not complied with the conditions

which he was required to comply as per the letter dated 27.08.2010; that the

consideration of academic year of the appellant being wasted was not

relevant; that the appellant had approached the Court at his own peril

knowing fully well that he was guilty of concealment of facts.

9. It was the contention of the appellant before the learned Single Judge

as also before us that in the matter of migration, no distinction could be

maintained between those who had cleared/passed the first year in the first

attempt and those who had cleared the same in the compartment

examination. It was further the case of the appellant relying upon the

judgment of the Division Bench of this Court in University of Delhi Vs.

Varun Kapur 179 (2011) DLT 549 that the result of the compartment

examination would relate back to the year in which the main examination

was held and a candidate clearing the said exam by way of a compartment

examination could not be said to have passed the examination in a

subsequent year. Though the learned Single Judge has noticed the said

contention of the appellant but has unfortunately not dealt with the same and

has proceeded to dismiss the writ petition relying upon Guru Nanak Dev

University Vs. Parminder Kaur Bansal (1993) 4 SCC 401 (laying down that

Courts while deciding academic matters would not pass any orders based on

misplaced sympathy and compassion) and on A.P. Christians Medical

Educational Society Vs. Government of Andhra Pradesh (1986) 2 SCC

667 (cautioning the Courts against interference in academic matters and

passing orders which would make the academic institutions defy their own

rules and regulations).

10. The judgment dated 10.03.2011 of the learned Single Judge of this

Court in Varun Kapur (supra) had noticed that earlier also, Division

Benches of this Court in judgment dated 07.09.1999 in LPA No.385/1999

titled Neha Kattyar Vs. CBSE and in Prashant Srivastava Vs. CBSE AIR

2001 Delhi 28 held that once the supplementary examination is passed, the

result thereof would relate back to the first appearance in the examination

and the effect of that would be to treate as if the candidate had passed the

examination on the date when the result was declared initially. Both the said

cases however were with respect to Class XII examination.

11. It is further noted in the judgment dated 10.03.2011 of the learned

Single Judge in Varun Kapur that another Single Judge of this Court in

Deep Gupta Vs. Guru Gobind Singh Indraprastha University

MANU/DE/1187/2008 had also held that candidates who cleared the

qualifying examination in the first attempt and those who cleared the same

in compartment, for the purposes of determining eligibility cannot be

discriminated. A contra view taken by another Single Judge in Ankur Vahi

Vs. UOI 2004 (72) DRJ 428 was also noticed.

12. The Division Bench of this Court in Varun Kapur also observed as

under:

"11. Why should we not be situationalist Judges and not rationalist Judges? We think we should. It is not a case where wholly ineligible persons or persons who have obtained admission by dubious means would continue as students of the University of Delhi in the Faculty of Law. If we hold against the respondents, two seats would go abegging, and this in our opinion would be contrary to public interest and thus the compulsion of the situation compels us to be situationalist Judges and uphold the view taken by the learned Single Judge."

13. The counsel for the appellant has argued that the present case is

clearly covered by the judgment aforesaid in Varun Kapur. It is also

informed that the appellant has ceased to be a student of the LIET,

Hyderabad and if held to be not entitled to migration, would end up wasting

two years of his academic life and which would offset him totally against his

peers. Alternatively, it is argued that even it be presumed that LIET,

Hyderabad would be willing to take back the appellant in the Second year,

the appellant would still end up losing one year. Else, it is contended that

the appellant having cleared the compartment examination has cleared the

first year of the B. Tech. course and which is the only condition of which the

appellant is stated to be in contravention of.

14. Per contra, the counsel for the respondent No.1 University has

contended that the appellant could not have been a student of two

Universities at the same time i.e. the University to which LIET, Hyderabad

was / is affiliated as well as to the respondent No.1 University and which

would be the effect if the appellant while pursuing compartment

examination of the first year in the LIET, Hyderabad is held entitled to also

join the Second Year of the course in the respondent University. It is yet

further contended that the migration permitted vide letter dated 27.08.2010

was subject to fulfillment, within a fortnight, of the conditions therein and

which having not been fulfilled, no right can be said to have accrued to the

appellant.

15. The counsel for the respondent No.2 MAIT though has admitted

receipt of fees from the appellant but denies having allowed him to attend

the classes.

16. We may notice that one of us (Rajiv Sahai Endlaw, J) in Neha

Singhal Vs. GGSIP University MANU/DE/1422/2011 had occasion to deal

with a migration letter similar to the one dated 27.08.2010 in the present

case. In that case also on the basis of such a letter the student was admitted

to the College / Institute affiliated to the respondent No.1 University while in

fact migration had not been completed. Direction was given to the

respondent No.1 University to issue guidelines to all its affiliates for

ensuring that no fee is received from students seeking migration till

unconditional approval is granted. Suggestion was also made to the

respondent No.1 University to consider modifying the format of the letter

approving the migration inasmuch as it was felt that the same was fraught

with the possibility of misleading the students. It was held that no approval

for migration ought to be granted till the documents are submitted and the

University is satisfied as to eligibility. We are told that the respondent No.1

University in compliance of the said directions has already amended the

format of migration letter and also issued instructions to its affiliates.

17. The question here is of the course of action to be followed; whether to

leave the appellant to again approach the LIET, Hyderabad at the cost of

wasting a valuable academic year or to allow the appeal and hence the

appellant to continue with respondent No.2 MAIT which he is found to have

joined in September, 2010 and where he has been appearing in the

examinations.

18. We see no reason to not follow the dicta in Varun Kapur holding that

once the compartment examination is cleared, it cannot be said that the

appellant was ineligible for migration particularly in the face of the

ambiguity aforesaid in the migration letter. The other considerations which

prevailed with the Division Bench in Varun Kapur also exist here; the seat

vacated by the appellant would go abegging. In the facts of the present case

also, the situation prevails over the rationale and the appeal succeeds.

19. The appeal is accordingly allowed. The letter dated 16.12.2010 of the

University cancelling the permission for migration of the appellant from

LIET, Hyderabad to respondent No.2 MAIT in the B. Tech. (Mechanical

Engineering) Programme (Second Shift) is quashed/set aside. The appellant

who has already joined the respondent No.2 MAIT is permitted to continue

the course. We were during the hearing informed that some internal

examinations of respondent No.2 MAIT were to be held. The counsel for

respondent No.2 MAIT assured that in the event of the appeal succeeding, a

separate internal examination for the appellant would be held. The

respondent No.2 MAIT is bound by the said statement.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE th NOVEMBER 24 , 2011 'gsr'