Shri Dakshesh Sharma vs Vice Chancellor, Delhi ...
2011 Latest Caselaw 4262 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment delivered on: 01.09.2011



    W.P.(C) No.5568/2011 and C.M.No.11374/2011



Shri Dakshesh Sharma                             ......Petitioner

                       Through: Ms. Meenu Mainee, Advocate.


                             Vs.


Vice Chancellor, Delhi University
& Anr.                                          ......Respondents

                       Through: Mr. Mohinder J.S Rupal, Advocate.


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


KAILASH GAMBHIR, J.Oral :
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to direct

the respondent to grant him admission in MIB Course 2011-

2013 Batch in accordance with his merit position.

2. Brief facts of the case relevant for deciding the

present petition are that after having passed his 12th

examination and B. Tech Course, the petitioner had appeared

in CAT examination in the month of November 2010 and was

declared successful by securing 95 percentile. After having

qualified the said entrance examination the petitioner sought

admission in MIB/MHROD in Delhi University in Department of

Commerce and vide letter dated 10.3.2011, the Delhi School of

Economics respondent No.2 informed the petitioner that

based on his performance in the CAT test he was shortlisted

to participate in a group discussion and interview for seeking

admission in the said MIB Programme. After having appeared

in the group discussion and the interview conducted by the

respondent no. 2, the name of the petitioner was shortlisted

and his rank was at serial no. 106 in the merit list of shortlisted

candidates prepared by the respondent. Based on the said

merit list, the petitioner was also selected for provisional

admission to the said MIB Programme for the academic

session 2011-13 and this was informed to the petitioner by

the respondent vide their letter dated 7.4.2011. The

petitioner through the said letter was also required to furnish

his original certificates for participating on the first date of

counseling i.e. 17.4.2011. The petitioner could not get a seat

in the first counseling and not even in the second counseling,

which was held on 15.5.2011. In the second counseling the

students up to serial no. 102 in the merit list could secure their

seats in the said MIB Programme but still there were vacancies

to be further filled by the respondent no.2, but the respondent

no.2 did not announce any date or schedule for holding a third

counseling. In such a scenario, the petitioner made a

representation to the Vice Chancellor of University of Delhi on

24.5.2011, requesting him for filling up all the seats well before

the commencement of the academic session of the said course.

Getting no response from the Vice-Chancellor, the petitioner

then had sought information regarding existing vacant seats

under the RTI vide his letter dated 1.6.2011 and in response to

the said information, one Professor Mr. J.P. Sharma, officiating

Head of the Department of Commerce informed the petitioner

that 10 seats were still vacant in the MIB Programme but since

the admissions have closed, no counseling will take place.

After getting the said information under the RTI, the petitioner

submitted yet another representation dated 30.6.2011 to the

Programme Coordinator of respondent No.2, but the petitioner

did not receive any response to the said representation, but

then later he came to know that the respondent no. 2 had

conducted an extended second counseling session when the

candidates lower in rank to the petitioner in the merit list were

given admission in the said course. The petitioner also came to

know that even after filling up some seats in the said extended

second counseling, there still remained two seats in the said

MIB Course. The petitioner along with his father personally met

the Programme Controller/MIB on 21.7.2011 when it was

revealed to him that the extended second counseling has taken

place on 19.7.2011 and since the petitioner did not attend the

extended second counseling, therefore, even those students

who are lower in the merit position than the petitioner were

given admission in the said course. Feeling aggrieved with the

arbitrary and discriminatory acts of the respondent no.2 in not

giving an opportunity to the petitioner to participate in the

extended second counseling, the petitioner has preferred the

present petition.

3. Arguing for the petitioner, Ms. Meenu Maini, learned

counsel submits that at the time of first counseling and the

second counseling, written letters were issued by the

respondent no.2 but at the time of extended second

counseling no such letter was sent by the respondent no.2 to

the petitioner. Terming such an act of the respondent no.2 as

arbitrary and discriminatory, the counsel contended that the

respondent no.2 has compromised the merit by denying seat

to a meritorious candidate whose rank in the merit list is higher

than those candidates who were granted admission in the

extended second counseling. Counsel thus urges that such an

action on the part of the respondent no.2 is in violation of

Article 14 and 16 of the Constitution of India. Counsel for the

petitioner has also taken a strong exception to the information

given by the officiating Head of the Department of Commerce

who in his reply under the RTI Act took a categorical stand that

the admissions are closed and there will not be any further

counseling. The contention of the counsel for the petitioner is

that the petitioner was deliberately misled so that some other

students could be favoured to get admission in place of the

petitioner. The counsel has also taken a stand that no

communication was sent by the respondent to inform the

petitioner about the date of the extended second counseling

although the counsel has fairly admitted that the petitioner

did not check up the status about the extended second

counseling on the website of the respondent. Giving an

explanation for not verifying the schedule on the website of the

respondent, counsel submits that the petitioner was led to

believe by the said RTI reply that there will be no further

counseling and also because there was no response when the

petitioner made personal visits to the respondent no.2 to find

out the schedule of extended second counseling.

4. Opposing the present petition, Mr. M.J.S. Rupal,

learned counsel for the respondents states that the meeting of

the Advisory Committee constituted by the respondent no.2

was held on 6.7.2011, wherein the decision was taken by the

said Committee to conduct an extended second counseling on

19.7.2011. Counsel further points out that all the candidates

right from the first rank onwards were informed by the

respondent no.2 to participate in the extended second

counseling and this information was given to them through

SMS as per the mobile phone numbers provided by each

candidate in the application form submitted for admission and

the said message was sent not only through the mobile phone

but through internet as well. Counsel further submits that in

addition to the said mode of communication even letters were

dispatched through ordinary post to all the candidates and

above all the said information of extended second counseling

was also put up by the respondents on their website on

8.7.2011. Counsel also points out that on 15.7.2011, another

document was uploaded on the website by the name

(new_extended_second counseling_display_counseling_list MIB-

MHROD (2011-2013)) and the said document contained a list

of all the general category candidates who were called to

participate in the second extended counseling in order of

merit. The contention of the counsel for the respondent is that

each and every candidate was fully informed about the

decision of the respondent no.2 to hold extended second

counseling and the exact date thereof, but yet the petitioner

did not present himself to participate in the extended second

counseling and for his own negligence the petitioner cannot

blame the respondent no.2 or the Coordinator of the said

Admission Committee.

5. Giving an explanation for the reply sent by the

officiating Head of the Department of Commerce, counsel

submits that the Head of the Department i.e. Professor K.V.

Bhanu Murthy was on leave from 27.05.2011 to 28.06.2011

and the decision in respect of holding of the extended second

counseling could be taken only on the rejoining of the said

Head of the Department, and therefore the officiating Head

had only given the position as it was existing then and

therefore, the petitioner cannot take any undue advantage of

the said information given by the officiating Head of the

Department who was otherwise not competent to take

decision about the extended second counseling. Counsel also

points out that it was not obligatory on the part of the

respondent no.2 to have given personal communication to all

the candidates including the petitioner to participate in the

extended second counseling as through the information

uploaded on the website of the respondent no.2, the

candidates were made aware about the decision of the

respondent no.2 to conduct an extended second counseling

but yet an extra effort was made to send a personal

communication to all the candidates through SMS and letters

by ordinary mode. Counsel thus submits that the action of

the respondent cannot be termed as arbitrary or

discriminatory as the entire process of counseling was

conducted by the respondent no.2 in a most fair and

transparent manner. Counsel has also pointed out that in fact

the petitioner has not approached this court with clean hands

and he had deliberately suppressed the information of having

received the SMS and the letter sent by the respondent no.2 by

ordinary mode. Counsel also submits that the academic

session for the course has already begun and if any direction

is given by this court now to fill the two unfilled seats, the

same would be humanly impossible as for filling the said two

seats again the respondent no.2 will have to start the process

by calling the students from the first rank and then these

two seats will have to be filled at the midstream session.

6. I have heard learned counsel for the parties at the

considerable length and given my thoughtful consideration to

the arguments advanced by them.

7. The petitioner applied to respondent no.2 for

admission in MIB course after having qualified the CAT with

95% percentile marks. The petitioner was called for

GD/interview and the petitioner was placed at serial no.106 of

the merit list. The petitioner thereafter was called for his first

counseling on 17.4.2011 where he could not secure a seat and

was thus again called for the second counseling on 15.5.2011

wherein also he was not successful in securing a seat. The

cause of heartburn of the petitioner herein is that he was not

intimated about the extended second round of counseling that

was held on 19.7.2011 and as he had no information regarding

the same, he could not appear in the extended second round

and thus the students below him in the merit list were given

admission whereas he has been illegally denied admission.

8. It is the case of the petitioner that when he was not

able to secure a seat even after the second round of

counseling, he made a representation to the Vice Chancellor of

respondent no.1 on 24.5.2011 to which he did not receive any

reply. The petitioner thereafter applied under the Right to

Information Act on 1.6.2011 to seek information regarding the

existing vacant seats and in reply to the same, Professor J.P

Singh, the Officiating Head of the Department of Commerce

vide reply dated 13.6.2011 stated that there are 10 vacant

seats in the MIB course and as the admissions are closed, no

criteria has been devised to fill the same and no next

counseling is to take place. The petitioner again made a

representation vide letter dated 30.6.2011 to the Coordinator

Admission for conducting a third counseling for filling up the 10

vacant seats. The contention of the petitioner is that he was

continuously following his case with the respondent no.2, but

he was still not informed about the extended second round of

counseling and came to know that the same has already taken

place on 19.7.2011 when he along with his father met the

Programme Coordinator on 21.7.2011, which illegal, arbitrary

and discriminatory act on the part of the respondent has

victimized the petitioner. The counsel for the petitioner has

also contented that the petitioner did not receive any

SMS/email or any letter by post informing him about the

extended second round of counseling as it is not possible that

the petitioner who stood a fair chance of getting admission in

the extended round of counseling and has also been requesting

for the same by making various representations, would not

attend the same deliberately. The counsel for the petitioner

has also submitted that the students with rank as low as 175

have got admission and the petitioner with the rank of 106 has

been denied admission. The counsel also argued that even at

present there still exist two vacant seats in the said course,

therefore, a direction can be given by this court to the

respondents to give admission to the petitioner.

9. The counsel for the respondents on the other hand

has submitted that after the second counseling was over,

professor K.V Bhanu Murthy , the Head of the Department of

Commerce proceeded on leave from 27.5.2011 to 28.6.2011

and in the meantime while he was on leave, 10 seats were still

vacant in the MIB course, which ultimately swelled to 13 seats

out of the total 33 admissions which were made for the general

category through the first and second counseling. The defence

raised by counsel for the respondent is that the fact of the

existing vacancies was reported to the Head of the Department

on his rejoining and a meeting of the Admission Advisory

Committee was held on 6.7.2011 wherein it was resolved to

conduct the extended second round of counseling on

19.7.2011. The stand of the counsel for the respondent is that

all students right from the first rank onwards were informed by

SMS as per the mobile phone numbers provided by each

candidate in the Application form submitted for admission

including the petitioner. The counsel has also submitted that in

addition to the SMS on mobile phone and through the internet,

a letter was also sent by post and the information regarding

the extended second round was also put on the website of the

respondent no.2 on 8.7.2011 itself. Another document was

uploaded on the website on 15.7.2011 which contains the

names of all the general category candidates called for the

extended counseling and this demonstrates that the

respondent had made all endeavour to inform all the

candidates about the said extended counseling. On the

contention of the counsel for the petitioner that there are still

two vacant seats and the petitioner be now given admission,

the counsel for the respondent submitted that the admissions

stand closed now and the current session has already begun

with the 1/3rd lectures being completed and hence it would not

be possible to give admission to the petitioner at this stage.

10. It is not in dispute between the parties that the

petitioner was present for the first and second round of

counseling but could not manage to secure a seat. It cannot be

denied that the petitioner vide his representation to the Vice

Chancellor of respondent No.1 wanted that another round of

counseling be conducted. It is also a fact that the petitioner

applied under the RTI for seeking information regarding the

existing vacancies to gauge his chance and on the reply

received under the said application by the Officiating Head of

the Department he came to know that there were 10

vacancies, in response to which he wrote to the Coordinator

Admission for conducting another counseling so that the vacant

seats be filled. Admittedly, the petitioner did not get any reply

to the aforesaid representations and had thus consigned to his

fate and did not follow up his case any further. It has been

admitted by the petitioner that he did not check the website of

the respondent after he did not get any response to his

representations and therefore did not come to know about the

extended second round of counseling. In the peak time of

admissions, the educational Institutions like the respondents

are flooded with representations and requests and it is nothing

but a grossly naïve presumption on the part of the petitioner

that as the representations have not been replied to, there

would be no chance for any other counseling to take place. It

is a caveat to the students that it is their bounden duty to keep

a tab on the admission processes taking place in the institutes

where they are vying for admission. Time is the essence in

today's arduous and cut throat competition for admission and

the petitioner should have been more diligent, vigilant and on

his toes for following up the process of admissions in the

respondent institute.

11. The contention of the counsel for the petitioner that

the respondent no.2 vide the RTI reply had intimated that there

would be no admissions taking place any further which caused

prejudice and has led to the victimization of the petitioner does

not cut any ice as the RTI reply was sent on 13.6.2011 and the

meeting of the Admission Committee was held on 9.7.2011

wherein it was decided to hold the extended second round of

counseling on 19.7.2011. The officiating Head of the

Department thus made no false statement as it was true at the

time it was made and the petitioner cannot treat the said

statement as the last word to be cast in stone and should have

been on the go for checking the admission status. The

admission of the petitioner that he did not check the website

when he got no reply to his representation as there was no

occasion for the same and came to know that the extended

second round has already taken place when he along with his

father visited the Programme Coordinator shows that though

the petitioner was active in following his case in the beginning

but certainly became complacent thereafter which proved fatal

to him and to his career and thus he cannot now turn around

and blame the respondents for his own Frankenstein.

12. This court also does not find any force in the

contention of the counsel for the petitioner that the

respondents did not intimate him and he received no SMS

through mobile or internet or by post for conducting the

extended round of counseling as there is no reason to attribute

any malafide to the respondent for discriminating the petitioner

vis a vis other candidates who were called for the extended

counseling and attended the same. Even otherwise, the onus is

on the petitioner to keep himself abreast with the

developments and not for the respondents to keep track once

they have timely uploaded the said information on their

website which is a public portal accessible to all.

13. As far as the contention of the counsel for the

petitioner that thee are still 2 seats vacant in the MIB course in

the respondent Institute and he can be given admission is

concerned, this court is of the considered view that the same

cannot be done in the face of the fact that the course has

already begun from 21.7.2011 and 1/3rd lectures have already

taken place and the petitioner would not be able to make up

the 3/4th attendance required for appearing in the first

semester examinations as the classes are scheduled to finish

by 19.11.2011. Even otherwise as per the mandate of the

Supreme Court through various judicial pronouncements,

midstream admission cannot be granted. Here it would be

useful to refer to the judgment of the Apex Court in the case of

State of Uttar Pradesh vs. Anupam Gupta(1993)Supp 1

SCC594 wherein it was held as under:

"16. Considering from this point of view, to maintain excellence the courses have to be commenced on schedule and to be completed within the schedule, so that the students would have full opportunity to study full course to reach their excellence and come at par excellence. Admission in the midstream would disturb the courses and also works as handicap to the candidates themselves to achieve excellence. Considering from this pragmatic point of view we are of the considered opnion that vacancies of the seats would not be taken as a ground to give admission and direction by the High Court to admit the candidates into those vacant seats cannot be sustained."

It was further reiterated by the Apex Court in the case of

Medical Council of India vs. Madhu Singh

2002(7)SCC258 in the following words:

"24. It is to be noted that if any student is admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual positions go to show, the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned counsel for respondent No.1 that with the object of preventing loss of national exchequer such admissions should be permitted, we are of the view that same cannot be a ground to permit mid- stream admissions which would be against the spirit of governing statutes. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by taking into consideration the capacity of the student to study and the appropriate spacing of classes. The students also need rest and the continuous taking of classes with the object of fulfilling requisite number of days would be harmful to be students' physical and metal capacity to study."

Hence, it is evident from the aforesaid that midstream

admissions cannot be done in any case and therefore the

prayer of the petitioner for admission at this stage cannot be

granted.

14. Hence, in the light of the above discussion, there is

no merit in the present petition and the same is hereby

dismissed.

KAILASH GAMBHIR, J September 01, 2011 mg