Apurva vs University Of Delhi And Anr.
2012 Latest Caselaw 536 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) 7437/2011

                                   Date of Decision:- 25th January, 2012

IN THE MATTER OF:
APURVA                                                ..... Petitioner
                        Through:     Mr. V.K. Sharma, Adv.

                   versus

UNIVERSITY OF DELHI AND ANR.                          ..... Respondents

                    Through:         Mr. Mohinder Rupal, Adv. with
                                     Ms.Shawana Bari, Adv. for R-
                                     1/D.U.
                                     Mr. Amit Bansal, Adv. for R-2.

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI

:     HIMA KOHLI, J (ORAL)

1. The petitioner has filed the present petition praying inter alia for

directions to respondent No.2/College to issue a migration certificate in

her favour to enable her to migrate from respondent No.2/College to

Vivekanand College, Vivek Vihar, Delhi by getting admission in the

B.Com (Pass) Course in the second year(Academic Session 2011-12).

Directions have also been sought to be issued to respondent

No.1/University to verify from all colleges affiliated to it as to whether

migration certificates are being issued to students in a timely manner.

2. Briefly stated, the facts of the present case are that the

petitioner, who is a resident of Ghaziabad, U.P., completed her

schooling in the year 2009-10 and thereafter in July 2010, applied to

respondent No.2/College situated near Najafgarh, Delhi seeking

admission in the B.Com (Pass) Course, which was duly granted to her.

The petitioner continued her studies in the respondent No.2/College

and was declared as having passed the first year in July 2011. The

second session (i.e. the second academic year) of the aforesaid course

began on 01.08.2011. On 17.08.2011, the petitioner approached

Vivekanand College, Delhi University with a request for grant of

permission to migrate from respondent No.2/College to the said

college. Counsel for the petitioner refers to a copy of the aforesaid

representation dated 17.08.2011 and points out that an endorsement

was made thereon by Vivekanand College that the case of the

petitioner had been recommended for migration in the second year.

3. Immediately, upon receiving the said consent from the proposed

transferee college, the petitioner submitted a representation dated

29.08.2011 to respondent No.1/University stating inter alia that

though she had obtained a no objection from the Principal of

Vivekanand College for her migration to the same course in the second

year, respondent No.2/college had failed to issue a migration

certificate to her and therefore, intervention of respondent

No.1/University was sought by the petitioner. It is the case of the

petitioner that a representation dated 05.09.2011 was submitted by

her to the Principal of respondent No.2/College for issuance of a

migration certificate in her favour on the ground that her father was

facing acute financial problems. The aforesaid representation

submitted by the petitioner was received by respondent No.2/College

on 07.09.2011. It is stated by the counsel for the petitioner that, in

the meantime, Vivekanand College issued a circular dated 21.09.2011,

confirming the migration of the petitioner from respondent

No.2/College to the course of B.Com.(Pass) in the second year

(Annexure P-6). But, despite the issuance of the said circular, as

respondent No.2/College refused to issue a migration certificate to the

petitioner, she had to approach this Court by filing the present petition

on 03.10.2011.

4. It is the contention of learned counsel for the petitioner that

respondent No.2/College has been arbitrarily withholding her migration

certificate and it has adopted a pick and chose policy for issuing

migration certificates.

5. Notice was issued on the present petition on 12.10.2011.

Counsel for respondent No.1/University entered appearance on the

very same date and sought time to file a counter affidavit. Thereafter,

appearance was also entered on behalf of respondent No.2/college and

time was sought to file a counter affidavit. Counter affidavits have

been filed by the respondents.

6. Respondent No.2/College raised a preliminary objection in the

counter affidavit to the effect that the petitioner has failed to implead

the proposed transferee college, i.e., Vivekanand College as a co-

respondent in the present proceedings and that the no objection

granted by the said college to the petitioner was on 17.08.2011 and

much time has passed ever since then. Therefore, it was urged that it

would have been appropriate for the Court to have obtained a

response from the proposed transferee college as to the status of the

migration of the petitioner at such a belated stage. Counsel for

respondent No.2/College submits that even otherwise, the petitioner

had approached this Court quite belatedly in the month of October

2011 when three months of the academic session 2011-12 had already

passed and by now only two months of the said session are left for

completion, whereafter the annual examinations are to commence in

the month of April 2012. It is further stated that the petitioner had

also filled up her examination form on 30.09.2011 and submitted it to

the respondent No.2/College, which has in turn forwarded the same to

respondent No.1/University.

7. Counsel for respondent No.2/College submits that while filing

the present petition, the petitioner has also withheld material

information from the Court. He states that initially, the petitioner

had approached the Principal of respondent No.2/College with a

representation that was received on 18.08.2011, wherein she had

requested for issuance of a migration certificate to Vivekanand College

on the ground that she was a resident of Ghaziabad and Vivekanand

College was closer to her residence. However, in her second

representation dated 24.08.2011 addressed to the Dean, Students

Welfare, Delhi University, the petitioner did not furnish any reason

whatsoever for seeking migration from respondent No.2/College. In

her third representation dated 5.9.2011 addressed to respondent

No.2/College, the reason given by the petitioner for seeking migration

from respondent No.2/college was that her father had been facing

financial problems.

8. Learned counsel for respondent No.2/College submits that in the

academic session 2011-12, the Department of Commerce of

respondent No.2/College had received 26 applications from different

students seeking migration to other colleges. Confronted with such a

slew of applications seeking migration, the Staff Council of the

respondent No.2/College took a decision in its meeting dated

13.09.2011 that it would not allow migration to any student solely on

the ground of distance. The aforesaid decision was taken in view of

the fact that respondent No.2/College found that many students had

been taking admission in the college with the intention to migrate to

colleges of their choice in the second year which had resulted in

adversely affecting the working of the College and a marked reduction

of the workload of the college/Department. The other consequence of

such migration was that it was resulting in denying admission to

genuine students who wanted to take admission in B.Com (Pass)

course, but, were denied such an opportunity at that stage.

9. In support of the aforesaid submission, counsel for respondent

No.2/College draws the attention of this Court to the minutes of the

meeting dated 13.09.2011 held by the Department of Commerce in

respondent no.2/College (Annexure P-3) wherein the Department

observed that the respondent No.1/University had opened respondent

No.2/College in a rural area so as to address the socio-economic

hardship faced by students living in such areas, who were keen to take

admission at college level for undertaking higher studies, but were

unable to do so as they could not get admission in other premier

colleges affiliated to respondent No.1/University. It was also observed

in the said meeting that apart from the petitioner herein, there were

many other students who had submitted applications seeking

migration on the ground of "distance from college to home" but their

requests made on this basis were denied in view of an earlier decision

of the Staff Council. The minutes of the meeting record the fact that

later on, applications for migration were received from students giving

different grounds including medical grounds of their parents and the

economic problems being faced by their families, but only two such

students who had applied for migration on economic grounds and were

consistent on the said ground taken by them, were allowed migration

on compassionate grounds. However, all the other applications,

including that of the petitioner were turned down for the reason that

the said students had changed the initial ground taken for migration to

other grounds on an assumption that the same would be found to be

more suitable/acceptable for respondent No.2/College to grant them a

migration certificate.

10. The aforesaid decision taken by the Department of Commerce of

respondent No.2/College was reiterated in the meeting of the Staff

Council held on 17.10.2011(Annxure R-6) which stand was echoed by

respondent No.2/College in its reply dated 19.09.2011 addressed to

respondent No.1/University on the same issue.(Annexure R-5).

11. Counsel for respondent No.2/College states that the decision

taken by respondent No.2/College to decline the request of the

petitioner for issuance of a migration certificate is neither arbitrary nor

whimsical for the reason that as is apparent from the records, the

petitioner had earlier applied for migration solely on the ground of

"distance from college" but, later on, she sought to improve upon her

case by taking an additional ground of economic hardship in order to

overcome the aforesaid decision of the Staff Council. It is further

stated that the decision of the Staff Council has been uniformly applied

to all the students including the petitioner and the respondent

No.2/College has not adopted a pick and chose policy as alleged by the

petitioner. To buttress his argument that a student does not have a

vested right to claim migration from one college to another within the

same University, learned counsel for respondent No.2/College relied on

the following judgments:

i. Aman Ichhpuniani Vs. The Vice Chancellor, Delhi University & Ors. 71 (1998) DLT 202 (DB).

ii. Jatin Behl Vs. University of Delhi & Ors. 99 (2002) DLT 546. iii. Chetan Goel & Ors. Vs. University of Delhi & Anr. 2005 VIII AD (Delhi) 316.

12. In the course of arguments, counsel for respondent No.2/College

hands over a copy of a recent Notification dated 22.11.2011 issued by

the Deputy Registrar(Academic), University of Delhi, wherein it was

informed that the last date for migration of students from the School

of Open Learning to Regular Colleges or between Regular Colleges had

been extended till 30.11.2011 for the academic year 2011-12. The

said Notification dated 22.11.2011 is taken on record. It is stated that

in view of the aforesaid Notification dated 22.11.2011, the petitioner„s

request for issuance of migration certificate cannot be entertained any

longer when only two months are left for completion of the academic

year.

13. Though the counter affidavit of respondent No.1/University is not

on record, learned counsel states that he had filed the same in the

Registry yesterday with advance copies to counsel for the petitioner

and respondent No.2. He hands over a copy of the said counter

affidavit which is taken on record. In the said counter affidavit,

respondent No.1/University has also confirmed the fact that the

petitioner had changed the ground for seeking migration from the one

she had taken initially, i.e., from the ground of „distance from home to

college‟ to „financial hardships‟. He states that clause 2 of Ordinance

IV of the Ordinances of the University of Delhi which deals with the

provision of migration clarifies that it is a permissive permission and

cannot be claimed as a matter of right and, therefore, a No Objection

Certificate is required not only from the proposed transferee college

but also from the transferor college.

14. This Court has considered the submissions made by counsels for

the parties, perused the documents placed on record and examined

the decisions relied upon by the counsels.

15. The law on the issue of right of a student to claim migration from

one college to the other was examined and settled in the case of Aman

Ichhpuniani(supra) wherein a Division Bench of this Court when

confronted with a question as to whether a student has a "vested

right" to claim migration from one college to the other or merely "a

right" and if so, whether the said right is capable of being enforced and

exercised in writ jurisdiction of the High Court, held as below:

"16. Nevertheless, the existence of Ordinance-IV does contemplate migration. The provision also casts a duty on the Principal of the college from which migration is sought to exercise his discretion and take a decision on prayer for migration guided by reason keeping in view the relevant considerations and not merely by whim and caprice. Like all other discretionary powers vesting in public authorities, the power to forward an application seeking migration is also coupled with a duty. Each prayer shall have to be dealt with on its own individual merits. If the prayer for migration be a bald prayer it may not be allowed merely for asking. On the contrary if there are valid reasons assigned providing reasonable justification for such demand, the Principal on being satisfied of the availability of just grounds for migration, is duty bound to forward the application. Else the exercise of discretionary power would stand vitiated for unreasonableness or arbitrariness.

17-19. xxx

20. The mind of a student is immature. In an educational institution it is in the process of being trained. The teachers and the Principal of the Institution are trustees of the students and their parents, who repose faith and confidence in them for training the mind of the students and shaping them so as to be fit to face the world and bear the burden of life. For valid reasons the Principal may form an opinion that it would not be in the interest of the student to permit migration howsoever keen he may be to do so. He may have to weigh the interest of the Institution also. Some times the interest of the Institution and the interest of the student may conflict. He shall have to strike a balance and find the weighty side to which the decision shall have to swing. The whole process shall have to be objective.

If the decision making process be vitiated or the decision itself be vitiated for failure to take into consideration the relevant ones and/or for having been influenced by the irrelevant and extraneous consideration or want of bonafide, the decision will be open to judicial review. Of course, as held in Vice Chancellor, Utkal University & Ors. Vs. S.K. Ghose & Ors. (AIR 1954 SC 217), it is not the function of the courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.

21. xxx

22. xxx

23. To sum up, in our opinion :-

(i) To migrate from one college of the University to another is not a vested right of student. A student may seek migration from one College to another, if there be reasons for doing so. Ordanance-IV confers discretionary power on the Principal of the College from which migration is sought to forward or not to forward a prayer by a student seeking migration. The power is coupled with a duty to act reasonably guided by relevant consideration not by whim or caprice. The welfare of the student and the institution have both to be kept in view and weighed - if there be conflict between the two;

(ii) A student has a right to choose an educational Institution of his choice while seeking an admission, but such right cannot be exercised with the same vigour and vitality while seeking migration;

(iii) A request by student seeking migration for reasons relevant and germane to such prayer may not be denied unless the Principal be satisfied of the non- availability of the grounds or be of the opinion that the migration will not be in the interest of the student or the interest of the Institution outweighs the interest of the student. The choice of the student has to be respected by giving due weight; for no sensible

student would ordinarily like to leave the Institution which he had chosen to join." (emphasis added)

16. Following the aforesaid decision in the case of Jatin Behl (Supra),

a Single Judge of this Court took into consideration the legal position

with regard to permitting migration of students and observed as

below:-

"15. The reason as subsequently disclosed by the petitioner is that with a view to advance his career his wishes to join the coaching classes for the entrance examination for Chartered Accountancy. These classes are said to be available only near his residence in the evening. As noted in Aman Ichhpuniani (Supra) a student has no vested right to claim migration. What has to be considered is whether the consent was being unreasonably withheld by respondent No. 3 college. In the instant case petitioner was not entitled to admission in the morning college based on the results of his 12th Class Board Examination. He had accordingly obtained and secured admission in the evening College based on the marks obtained. This was not a case either of extreme hardship or any other supervening circumstance like the transfer of the parents of the petitioner resulting in change of residence or such other reasons for which migration has become inevitable. All that is claimed is that transfer to the morning college would enable the petitioner to take coaching classes, which would help him in preparation for the Entrance Examination. It is not as if morning classes are not at all available. They are available at an inconvenient distance from the petitioner's house. The respondent in their counter affidavit have brought out that the petitioner did not even seek the consent of respondent No. 3 initially. It is claimed by respondent No. 3 that the cut off marks at which admission had been closed by respondent No. 4 was 80% The petitioner having got 69.75% in his qualifying 12th Class Examination could not have secured admission in respondent No. 4 college. He cannot now be permitted to secure the same through the

back door, by-passing the claims of a large number of students, who had got higher marks than him in order of merits by seeking admission by way of migration. A further factor, which is pointed out is that while respondent No. 3 evening college, is having less students than the sanctioned strength, the morning college is having 150 students as against the sanctioned strength of 120.

16. In these circumstances respondent No. 4 college could not have given its no objection as the same would be contrary to the UGC Guide-lines which required the colleges not to accede its sanctioned strength and adhere to the permitted sanctioned strength. The respondent No. 4 college against a sanctioned student strength of 400 was having 2000 students. Relevant part of ordinance 4 which governs the case of migration is as under:-

"Applications for migrations from one college of the University to another shall only be entertained by the Principal, if forwarded by the Principal of the college from which migration is sought, and the necessary alteration in the enrolment entries shall only be made in the University register by the Registrar after obtaining the consent in writ of both Principals."

17. The initial application also did not disclose any reason for seeking migration. The plea of pursuing the coaching classes for chartered Accountancy Entrance Examination and computer course was subsequently taken."(emphasis added)

17. In the case of Chetan Goel (Supra) while relying on a series of

decisions on the same issue, namely, 'Hanspal Singh Bhinder Vs.

University of Delhi‟, 1997 II AD (Delhi) 270, 'Aman Ichhpuniani

(Supra), and CWP No.3089/1995 entitled 'Sumeet Sawhney Vs. The

Principal, Sri Aurobindo College, Malviya Nagar' decided on

19.12.1997, a Single Judge of this Court held that a student does not

have a vested right to demand migration from one college to another.

It was further explained that the aforesaid uniform view had been

taken by the Courts that a cogent reason must be given by the student

for seeking migration and the decision taken by the College should not

be found to be capricious, arbitrary or unreasonable. The learned

Single Judge also referred to the decisions of a co-ordinate Bench of

this Court in the case of Anant Madan Vs. University of Delhi, 1999 I

AD (Delhi) 249, W.P.(C) No.5504/1998 entitled G. Girish Vs.

PGDAV College decided on 11.12.1998 and W.P.(C) No.15651/2004

entitled Vineeta Sharma Vs. Satyawati Co-Ed College (Day) decided

on 02.05.2005 and while rejecting the case of the petitioner therein as

being devoid of merits, reiterated that a student must give cogent

reasons for seeking migration and observed as under:-.

"4. The interests of the College have to be balanced with the interests of the student. It has been contended on behalf of the College that its high and constantly improving academic achievements are obvious in the acceptance of the Petitioners in other Colleges. The Faculty would be aversely affected, for no fault ascribable to it, if students who have achieved excellence in the Examinations are secreted away by other Colleges. This practice has been experienced even at the school level. Depleted number of students in a course would not only cause financial strain on the College concerned but would also have a demoralizing effect on the Faculty. One should also not lose sight of the fact that for every student who is granted admission in a College there may be many who have been disappointed. The unsuccessful students cannot get admission in the second year. The question of migration is, therefore, not a trivial matter and must be viewed with seriousness. Had the Petitioners th obtained higher marks in their 12 Class Examination they

may have gained admittance to the College to which migration is now sought." (emphasis added)

18. In the present case also, the facts brought on record reveal

that the petitioner had been shifting her stand from time to time with

regard to the reasons given by her for seeking migration respondent

No.2/College and further, that she had not placed on record her first

representation made to respondent No.2/College for seeking

migration. The said representation has been filed by respondent

No.2/College alongwith its counter affidavit which reveals that while

initially, the petitioner took a plea of "distance from college to home"

as a ground for seeking migration from respondent No.2/College to

Vivekanand College, Vivek Vihar, but subsequently, she took the plea

of financial hardship of her father as a ground for seeking migration.

The plea of financial hardship taken by the petitioner later on to seek

migration ought to have been substantiated by her by placing relevant

documents in support thereof.

19. Pertinently, the medical records of the petitioner‟s father

enclosed with the writ petition to support the plea of financial hardship

being faced by the petitioner‟s family, only reveal that he had

undergone a surgery for Hernioplasy (ventral) in a hospital on

30.06.2011 and was discharged on 02.07.2011. Apart from the

aforesaid medical documents, which noted that the post operative

recovery of the petitioner‟s father was uneventful and he was being

discharged in a satisfactory condition, there is no other document

placed on record by the petitioner to show that her father had

remained so unwell/sick and was thus in such a financial strait that she

was compelled to seek migration from respondent No.2/College.

20. Even otherwise, having perused the decisions taken in the

meetings held by the Staff Council of the College, wherein a policy

was formulated for dealing with the representations received from

students seeking migration from the said college and having noticed

that the said policy has been consistently followed by respondent

No.2/College, this Court is of the opinion that the petitioner has not

been able to point out any such discrimination, arbitrariness or

capriciousness on the part of respondent No.2/College for this Court to

interfere by invoking its powers of judicial review. The Principal of

respondent No.2/College has had to strike a balance between the

interests of the students and that of the Institution and rightly so. The

minutes of the meeting of the Staff Council dated 17.10.2011 is a

telling remark on how the incessant requests of students in the second

year of the college, seeking migration to other colleges without any

cogent reasons has demoralized the teaching faculty and adversely

affected the financial health of the institution. In the absence of any

valid reasons provided by the petitioner to seek migration from

respondent no.2/college, there is no compulsion on the Principal of the

college to accede to such a request just for the asking. The shifting

stand of the petitioner is itself a pointer to the absence of valid

reasons in her case for seeking migration.

21. It is also relevant to note that in view of the latest

Notification dated 22.11.2011 issued by respondent No.1/University

wherein the last date for migration of students between regular

colleges had been extended till 30.11.2011 for the academic year

2011-12, this Court is not in favour of granting any such relaxation to

the petitioner at this belated stage. It is pertinent to note that the

academic year 2011-12 is at its fag end with only two months left for

the examinations of the said academic year to commence in April

2012. In such circumstances, there is no justification to accede to the

request of the petitioner for permitting her to migrate from respondent

No.2/college at this belated stage.

22. For all the aforesaid reasons, this Court declines to grant

the relief as sought by the petitioner in the present petition. The

petition is accordingly dismissed while leaving the parties to bear their

own costs.

HIMA KOHLI, J JANUARY 25, 2012 'anb'