Rajat Goel vs Ministry Of Human Resource & ...
2011 Latest Caselaw 4287 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment delivered on: 02.09.2011



 W.P.(C) No.4834/2011 and C.M.No.9808/2011



Rajat Goel                              ......Petitioner

                Through: Ms.Shobha, Ms.Bijoylashmi and
                         Ms.Hema Shekhawat, Advocates

                           Vs.

Ministry of Human Resource & Development
(Govt. of India) & Anr.                ......Respondents

                Through: Mr.Ankur Chhibber, Advocate for
                         the respondent No.1.
                         Mr.Nandish       Chudgar   and
                         Mr.Shamik Sanjanwala, Advocates
                         for the respondent No.2.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may Yes
   be allowed to see the judgment?
2. To be referred to Reporter or not?             Yes
3. Whether the judgment should be reported        Yes
   in the Digest?



         W.P.(C) No.4834/2011               Page 1 of 24
 KAILASH GAMBHIR, J.Oral :
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to direct the

respondents to fill the vacant seats for the batch 2011-2013

and call upon the petitioner for admission in IIM Shillong.

2. The petitioner before this court is a student

aspiring to seek admission in Post Graduate Programme in

Management Course 2011-2013 Batch in IIM Shillong i.e. the

respondent no. 2 herein, after having qualified the common

entrance test (CAT 2011-2013) with 94.16 percentile. The

case of the petitioner is that he had applied to seek admission

in respondent no.2 institute and was shortlisted for personal

interview and group discussion which was held on 22.3.2011.

It is further the case of the petitioner that his name was

shortlisted for admission in the said course and his rank was

54 in the augmented waiting list of general category. The

petitioner has further averred that he continued to check his

status from the website of the respondent no.2 and on

13.6.2011, his rank was shown at serial no.4 in the said

waiting list as per the list placed by the respondent on their

website. On telephonically enquiring, the petitioner also got

to know that there were still 14 vacancies to be filled up by

the respondent no.2 and being at rank no.4 in the augmented

waiting list, the petitioner had a legitimate expectation to get

admission in the said course in respondent No. 2 institute. It

is also the case of the petitioner that on 5.7.2011, the

petitioner got two mails from the web based on-line system of

the respondent no.2, one with the information that the

admissions are closed and the other one stating that the

petitioner is still at the position no.4 in the waiting list. After

having learnt the said status, the petitioner vide email dated

6.7.2011 made a request to the respondent no.2 to consider

his candidature for the grant of admission in view of the

availability of the seats but because of no response from the

side of the respondent no.2, the petitioner vide his

application dated 7.7.2011, moved by him under the Right to

Information Act sought information from the respondent no.1

regarding the funds invested by the Central Government in

IIMs, especially the respondent no.2 and in reply thereto, the

respondent no.1 supplied the relevant information which

shows that the Government is incurring an expenditure of

Rs. 120.67 crores (non-recurring over a period of 5 years)

and Rs.45.08 crores (recurring over a period of six years) for

the IIM Shillong, and the grant for IIM Shillong for the year

2010-2011 was Rs.2519 lacs. The petitioner has also averred

that the annual fee charged by the respondent no.2 per

student is Rs.5 lacs and if 14 seats remain vacant then the

same will result in a total loss of Rs.140 lacs. It is also the

case of the petitioner that it is not for the first time that the

respondent no.2 is very casually leaving the seats unfilled as

last year respondent no.2 gave admission to only 94 students

and thereby wasted 26 seats and caused a loss of

approximately 2.5 crores and still the respondent no.1 is not

taking any action against the respondent no.2 which is acting

in such an arbitrary manner against the larger public interest

at the cost of public money. In the background of the

aforesaid facts, the petitioner has preferred the present

petition.

3. Strenuously arguing for the petitioner, Ms.

Shobha, learned counsel for the petitioner submits that there

were in all 315 candidates belonging to reserved category

who were shortlisted and called for GD/interview and out of

those only 183 candidates appeared in group

discussion/personal interview and therefrom only 149

candidates were found suitable by the respondent no.2 to be

offered admission in the said course and were placed in

different rank lists. The contention of the counsel for the

petitioner is that out of the said 149 candidates, only 9

candidates accepted the admission while 140 candidates did

not come forward to seek admission in the said course and

this fact would show that none of the candidates belonging to

the reserved category are any more interested to seek

admission in the said course. Comparing this position with

the candidates belonging to the general category, counsel

submits that out of 341 candidates of general category only

97 candidates had accepted the admission thus leaving 244

general category candidates in its kitty who satisfy the laid

down criteria to seek admission in the said course. Counsel

thus urges that only formality which is required to be done by

the respondent no.2 is to send letters to all the candidates

belonging to the general category to fill the said 22 vacant

seats while no such offer can be extended to the candidates

belonging to the reserved category as already they have not

come forward to take admission despite offer made to them

by the respondent no.2. Counsel for the petitioner also took

a strong exception to the plea raised by the respondent that

it would not be appropriate to give midstream admission

with the argument that the petitioner had timely approached

this court by filing the present petition on 11.7.2011, and

therefore the right of the petitioner cannot be defeated on

such a flimsy stand that the course has now reached

midstream, when clearly the action of the respondent no.2 in

not filling the vacant seats is illegal and arbitrary on the very

face of it. Counsel further argued that it should be rather the

endeavour of the respondent no.2 to fill the said seats as the

wastage of the seats would not only be detrimental to the

interest of the aspiring candidates but the same is also a

waste of public funds. In support of her arguments, counsel

for the petitioner has placed reliance on the following

judgments.

     (1)    Dr.Jeevak Almast Vs. UOI (1988) 4 SCC 27

     (2)    Miss Asha Kumari Vs. The Rajendra Agricultural (Patna High
            Court) AIR 1997 Pat 102

     (3)    Dr.A.V.Gopalkrishnan & Ors. Vs. Byju N. & Ors. (Kerala High
            Court) AIR 1999 Ker 10

     (4)    Directorate of Medical Education Vs. Dr. K.Janaki (Madras
            High Court)



4.          Opposing     the   present    petition,    Mr.       Nandish

Chudgar, learned counsel for the respondent no.2 submits

that the respondent no.2 has already filled all the general

category seats and in fact had accommodated 97students,

more than the 90 seats allocated for the general category.

Counsel further took a stand that respondent no.2 completed

the entire process of admission in the general category as

well as in the reserved category so as to start the session for

the academic year 2011-2013 from 2.7.2011. Counsel

further submits that so far the reserved category candidates

are concerned, a total number of 315 candidates were

shortlisted and were called for group discussion and personal

interview and out of the said number, offer of admission was

made to 149 candidates as per their rank in the merit list and

the waiting list. Counsel has also pointed out that in all there

were 31 reserved seats which comprised of 4 seats in the

category of differently abled candidates, 9 seats for scheduled

tribes and 18 seats for scheduled castes. Counsel further

pointed out that in the reserved category, 93 candidates who

were in the prime list were first offered admission on

25.42011 against the 31 seats and thereafter all 149

candidates were offered the seats and this process continued

till 9.6.2011 when the last offer to reserved category

candidates was made by the respondent no.2. The contention

of the counsel for the respondent no.2 is that 140 reserved

category candidates who were shortlisted by the respondent

no.2 did not come forward to seek admission and the entire

process to fill the said reserved category seats came to an end

on 9.6.2011, and the admissions to the said course were

declared closed by the respondent no.2 on 22.6.2011 to start

the academic session of the said course from 2.7.2011.

5. Counsel for the respondent further submits that

the academic session of the said course has started on

4.7.2011 and as of now the foundation course is already

complete for the 2011-2013 batch and the other regular

courses are almost half completed. It is also the plea of the

respondent that the kind of studies which the students are

required to undertake at IIM, Shillong are that on an

average a student is expected to contribute at least 13 hours

of regular learning and if at this stage the direction is given

by this court to fill the said 22 vacant seats then it will take

about a month for the students to undergo the foundation

course and thereafter the student would attend regular

classes with the other students and such a situation would be

practically impossible as the students would not be able to

undertake such a strenuous exercise and it will also set a

wrong precedent to allow admission at the midstream stage.

Counsel also submits that in any case the petitioner cannot

claim his right to take a seat as he belongs to the general

category as the 22 seats which remained unfilled belong to

reserved category. Counsel thus submits that keeping in view

the strict time schedule of this academic session this process

cannot be undertaken at this stage and it would be humanly

impossible for the respondent no.2 to grant midstream

admissions when already the other students have completed

their foundation courses. Based on these submissions,

counsel for the respondent contends that the present petition

filed by the petitioner belonging to the general category

deserves dismissal. In support of his arguments, the counsel

has placed reliance on the following judgments:

1. State of Uttar Pradesh vs. Anupama Gupta (1993)Supp 1 SCC 594

2. Subodh Nautiyal vs. State of Uttar Pradesh (1993)Supp1SCC 593

3. Medical Council of India vs. Madhu Singh 200297)SCC 258

4. Krishna Priya Ganguly vs. University of Lucknow 1984(1) SCC 307

5. Union of India vs. R.Rajeshwaran 2003(9) SCC 294

6. Vijay L.Deshmukh vs. The Dean, Medical College, Nagpur AIR 1987

Bombay 56

6. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to

the arguments advanced by them.

7. The petitioner before this Court is an IIM aspirant

seeking admission in the course of Post Graduate Programme

in Management with the IIM, Shillong, respondent No.2

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

petitioner had duly qualified the highly competitive entrance

test, CAT, having secured 94.16 percentile. Indisputably, the

success in said Common Entrance Test (CAT) only entitles a

candidate to seek admission in various IIMs, imparting

education in the field of management and certainly the best

student gets admission in an IIM according to his merit and

the students higher in rank in the CAT results get a chance to

get admission in the higher placed IIMs and in any case no

student after doing well in the CAT examination would leave

any stone unturned to secure his admission in any of the IIMs.

It is also not in dispute that every IIM has further laid down

its own stage wise selection criteria to give admission to the

candidates qualifying the said CAT exam and it is only after

these candidates satisfy the laid down requirements of those

IIMs where they give option in order of priority, that they are

able to finally get admission. At a given time, any candidate

may try his luck not confining to one or two such institutes,

but may be more, so as to ensure his admission in one of the

IIMs. The petitioner herein had opted to seek his admission in

IIM, Shillong and he was shortlisted for personal interview

and group discussion which was held on 22.03.2011. The

petitioner was also declared successful in the said test

conducted by the respondent No.2 and was shown at Sl.No.54

in the augmented waiting list in the general category. As per

the petitioner, he continuously checked the website of the

respondent No.2 and his rank from the period from

25.04.2011 to 12.06.2011 remained at the same position i.e.

rank No.54. It is also the case of the petitioner that on

13.06.2011, his position improved to rank No.4 in the general

category and this status of the petitioner at Sl.No.4 in the

waiting list continued till the closing of the admissions by the

respondent No.2. The petitioner was shocked when he came

to know that the respondent No.2 was yet to fill 14 seats and

even with the availability of these seats, the petitioner was

not accommodated, although he was at Sl.No.4 in the waiting

list of the general category. As per the petitioner, he took up

the matter with the respondent No.2 vide his email dated

06.07.2011 with a request to grant him admission in view of

the availability of the seats, but there was no response from

the side of the respondent No.2. The petitioner has also

raised a grievance that on one hand, the Central Government

has been investing several crores of rupees to create more

opportunities for the aspiring management students and on

the other hand the respondent No.2 has closed the

admissions without filling all the vacant seats, causing

immense national waste. The petitioner has also submitted

that the grant-in-aid released by the Central Government in

favour of the respondent No.2-institute for the year 2010-11

is Rs.2519 lacs and non-filling of the vacant seats by the

respondent No.2-institute is against the larger public interest

at the cost of wasting public money. The petitioner has also

submitted that out of 2,40,000 candidates who had appeared

in the CAT exam, only about 1800 candidates were declared

successful and even this small percentage of successful

candidates are not able to secure admission in IIMs, as the

vacancy position in IIMs nowhere matches the candidates

who qualify the CAT examination and this wastage of seats by

all the IIMs further deprives the successful candidates. The

petitioner has also taken a stand that he cannot be denied

admission even at this stage on the plea of the respondent

that the said admission being at the midstream stage when

the students have already completed their foundation course

and the petitioner will not be able to catch up in studies with

other students. The contention raised by counsel for the

petitioner is that the petitioner cannot be made to suffer for

the fault of the respondent No.2, as it was incumbent upon

the respondent No.2 to have ensured filling up the entire

seats before the start of the academic session.

8. From the gamut of facts as stated herein above,

the question that arises for consideration before this court is

whether the petitioner is entitled for admission in the said

course and the respondent no.2 has arbitrarily and illegally

denied him admission. The petitioner admittedly belongs to

the general category and the vacancies in the respondent

no.2 institute are of the reserved category, the sum total of

differently abled, scheduled tribes and scheduled castes.

Undoubtedly, the unfilled seats from the reserved category

could not be filled as out of 149 candidates who were offered

seats, only 9 candidates had taken admission. The process

which was followed by the respondent No.2 to fill the said

reserved seats was that 149 candidates belonging to the

reserved category (SC+ST) and differently abled category

were shortlisted and out of the same 93 in the order of merit

were offered seats on 25.04.2011, 24 candidates from the

wait list No.1 were offered seats on 5.5.2011, 18 candidates

from wait list No.2 were offered seats on 13.05.2011, 7

candidates were offered seats from wait list No.3 on

21.05.2011, 5 candidates were offered from wait list No.4 on

31.05.2011 and the remaining 2 candidates from the wait list

No.5 were offered the seats on 09.06.2011. As per the

respondent No.2, the entire process of admissions after

following several stages of scrutiny came to be completed on

22.06.2011 and the said process could not have continued

further to start academic session of the said course from

02.07.2011.To fill the reserved category seats, it is only when

the candidates belonging to the reserved category who are

selected after having qualified CAT exam do not come

forward to take admission, the reserved category seats can be

converted into the general category seats. In the facts of the

present case, the respondent No.2 had shortlisted 315

candidates belonging to reserved category i.e. 43 differently

abled category, 88 Scheduled Tribes and 184 Scheduled

Castes. Out of the said 315 candidates, the respondent No.2

shortlisted 149 candidates on the basis of GD/personal

interview who were found deserving in the order of merit and

they were then placed in the prime list and the waiting list as

per their rank.

9. It is settled legal position that the reserved

category seats must be exhausted from the reserved category

alone and it is only when the candidates belonging to the

reserved category are not available then only the reserved

category seats can be converted into general category seats.

In the recent decision of the Apex Court in the case of

P.V.Indiresan Vs. Union of India and Ors . C.A.7084/2011

decided on 18.08.2011, the Apex Court, while dealing with

the issue of as to what should be the extent of cut off marks

for admission of OBC students in the Central Educational

Institutions, whether the same should be 10% below the cut

off marks of general category candidates or 10% below the

minimum eligibility criteria/qualifying marks, held as under:-

"41. We therefore, dispose of this appeal, affirming the decision dated 7.9.2010 of the learned Single Judge of the High Court,

subject to the clarifications/observations above, and subject to the following conditions:

(i) In regard to the admissions for 2011-2012, if any Central Educational Institution has already determined the 'cut-off marks' for OBCs with reference to the marks secured by the last candidate in the general category, and has converted the unfilled OBC seats to general category seats and allotted the seats to general category candidates, such admissions shall not be disturbed. But where the process of conversion and allotment is not completed, the OBC seats shall be filled by OBC candidates.

(ii) If in any Central Educational Institution, the OBC reservation seats remain vacant, such institutions shall fill the said seats with OBC students.

Only if OBC candidates possessing the minimum eligibility/qualifying marks are not available in the OBC merit list, the OBC seats shall be converted into general category seats.

(iii) If the last date for admissions has expired, the last date for admissions shall be extended till 31.8.2011 as a special case, to enable admissions to the vacant OBC seats."

Thus the above decision of the Supreme Court, though is in

regard to the OBC, which category does not exist in the case

of admissions to the respondent No.2 in the present case,

shows the essence of the reservation of seats and that they

cannot be converted to general category till the time the pool

of reserved category candidates is not exhausted.

10. So now in the facts of the case at hand, if the

respondent no.2 undertakes the process to fill in the 22

vacant seats, it has to do it from the reserved category by

calling in the candidates from the said list further below from

149 rank, to whom admission was never offered, send them

offer letters, shortlist again and put them in three merit lists

and fill those 22 vacant seats. In the event of any of the 22

seats not getting filled from the said category, then the same

shall be converted to general category and then offered to the

waiting list candidates. In the first case, if all the reserved

seats are filled in by the reserved category candidates, the

petitioner does not stand any chance of getting admitted and

in the event of the latter, if the seats, if not filled wholly by

the reserved category candidates, are offered to the general

waiting list, he is still at the fourth rank and there is no cent

percent chance of him getting admitted. Therefore, in both

the cases, the petitioner does not have a clear right and

chance of getting admitted and the conducting the entire

admission process at this stage at the cost of the time and

money of the respondent no.2 just to try the luck of the

petitioner is nothing but a gamble. The petitioner speculated,

and positively so, that had the seats been filled in toto he

would have got the admission which led him to file the

present petition. However, with all empathy to the hopes of

the petitioner, he has not been able to establish his

incontrovertible claim to the admission in the said course and

thus there still looms a shadow of doubt over his luck as to

whether he would have got the admission or not. This court

thus however cannot pass any direction in favour of the

petitioner based on surmises and conjectures.

11. As far as the argument of the respondent is

concerned that no midstream admission can be granted as

has also been reiterated by the Supreme Court in a number of

decisions cited by the respondent, it can be but unequivocally

stated that the petitioner approached this court at the earliest

opportune time on 11.7.2011 after having to know that the

admissions have been closed by the respondent no.2 on

5.7.2011 and if the time has been taken by the process of the

court or otherwise, the petitioner cannot be made to bear the

brunt of the same. The stage of the midstream where the

foundation course has already been finished and other course

finished half way could have been avoided by the respondent

had it taken care to fill the said 22 seats as per due process at

the stage of admissions itself and now the respondent cannot

turn around and blame the petitioner for its own

Frankenstein. Hence, the argument of the respondent No.2

that to give midstream admission to the petitioner would set a

wrong precedent cannot be accepted. The judgments cited

by the respondent hence would not be applicable in the light

of the foregoing.

12. The Indian Institute of Management or IIMs, as

they are called, are India's elite business schools and are a

brand to reckon with, both in India and abroad. The IIM

graduates form not only the cream of India's business bigwigs

but are wooed by the foreign companies alike. The tag of

being an IIM graduate is for a lifetime and it is a dream of

many a lot to be part of this prestigious alumni. IIM Shillong

is the younger lot of the IIMs, established to give the IIM

experience to more hopefuls. Such a premier institute is

expected to act fairly and transparently and justify the money

and funds that are allocated for them by the Government. The

approach of the respondent no.2 of not filling all the 120 seats

for the said course of PGP is whimsical and capricious to say

the least. It is not expected of such a highly reputed

educational institute to act in an arbitrary manner and had

this petitioner not been before the court, the practice of

leaving the seats vacant unreasonably by the respondent no.2

would not have come to light. It is the bounden duty of every

educational institute to justify the funds being diverted for

them. In the time of cut throat competition today, every seat

can make or mar the life of a student and the amount of time

and effort that goes to prepare and finally qualify such a

competitive examination like CAT goes down the drain due to

the high handedness of the institutes in wasting the seats,

despite having world class infrastructure and top notch

faculty at their disposal. This court severely condemns the

unsavoury and unpalatable practice of not filling the 22

vacant seats of the respondent no.2 with the admonition that

in future its conduct in this regard should not be dubitable.

There can be no dispute with regard to the judgments of the

Madras High Court, Kerala High Court and Patna High Court

cited by the petitioner holding that the seats should not go

waste in educational institutes and therefore for wasting the

seats and now the time having passed to undertake the entire

admission process again, this court deems it appropriate to

impose a cost of Rs. 1 lakh on the respondent no.2 to be paid

to the Prime Minister's National Relief Fund (PMNRF) within

a period of 4 weeks from the date of this order.

13. Hence, be that as it may, this Court cannot give

relief to the petitioner on the ground of misplaced sympathy

because of there being no clear legal right of the petitioner to

admission in the said course. The case of the petitioner is a

shot in the dark and the court cannot direct the respondent to

undertake the whole process just to find out the fate of the

petitioner.

14. 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 2, 2011