Rakesh Kumar Gupta vs Registrar, University Of Delhi ...
2012 Latest Caselaw 3230 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) 1393/2012

                                      Date of Decision:-15th May, 2012

IN THE MATTER OF:
RAKESH KUMAR GUPTA                                    ..... Petitioner
                       Through:    Petitioner in person with Ms. Sneh
                                   Gupta

                  versus

REGISTRAR, UNIVERSITY OF DELHI AND ANR         ..... Respondents

Through: Ms. Maninder Acharya, Adv. for Respondent No.1.

Mr. Amit Bansal, Adv. for R-2.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

:     HIMA KOHLI, J(Oral)

1. This petition has been filed by the petitioner, father of Ms.Sneh

Gupta praying inter alia for issuance of directions to the respondent

No.1/University and the respondent No.2/School of Open Learning

(SOL) to admit her in the second year B.Com (Hons.) course in the

respondent No.2/SOL.

2. Briefly stated, the facts of the case are that Ms.Sneh Gupta, d/o

Mr.Rakesh Kumar Gupta, petitioner herein (hereinafter referred to as

the student) was admitted in I.P. College for Women, that is affiliated

with the respondent No.1/University, in the first year of B.Com (Hons.)

Course for the academic session 2010-11. Due to some personal

reasons, she decided to leave the aforesaid college and decided to

attend classes through correspondence in the respondent No.2/SOL.

As a result, in October, 2011, the student approached I.P. College for

seeking migration to the respondent No.2/SOL after declaration of the

first year results of B.Com (Hons.) wherein she had scored 77.27%

marks and had secured a third position in her college. Pursuant

thereto, I.P. College had issued a Transfer Certificate dated

12.09.2011 wherein it was stated that the student had paid fees upto

the end of April, 2011. Thereafter, the student approached

respondent No.2/SOL and submitted an application dated 12.09.2011

stating inter alia that she wanted to seek migration from I.P. College

to the respondent No.2/SOL in the second year. Enclosed with the

aforesaid application was the marks statement/net result of the

student as secured by her in the first year.

3. It is averred in the writ petition that respondent No.2/SOL had

informed the student that she was required to submit her mark sheet

before 03.10.2011, which was the last date fixed for direct admissions.

The petitioner states that the mark sheet of his ward was printed on

21.10.2011 and was received in November, 2011 due to which the

same could not be submitted to the respondent No.2/SOL by

03.10.2011. It is further stated that the student had again

approached the respondent No.2/SOL on 17.11.2011 along with her

mark sheet and Transfer Certificate and had requested for permission

to migrate but her request was declined by the respondent No.2/SOL

on the ground that she was not enrolled in the second year

B.Com.(Hons.) course in I.P. College and because migration is

permitted only from a regular college to SOL, she must establish that

she was a bonafide student enrolled in I.P. College in the same year.

4. Aggrieved by the refusal on the part of the respondent No.2/SOL

to permit the student to migrate to SOL, the present petition was filed

by her father on 27.02.2012.

5. Notice was issued on the present petition on 07.03.2012 and the

counsels for the respondent No.1/University and the respondent

No.2/SOL who had entered appearance, were directed to file their

counter affidavits.

6. In the counter affidavit filed by the respondent No.2/SOL, it is

stated that the student is not entitled to any relief in the present

petition for the reason that as per the rules of the respondent

No.2/SOL contained in the prospectus, only a bonafide student of a

college is entitled to migration to SOL and admittedly, the student had

paid her regular fee with I.P. College upto April, 2011 and not

thereafter and resultantly, on the date when she had sought

migration, she was not a bonafide student enrolled with any college

and, therefore, she could not be considered for purposes of migration

to the respondent No.2/SOL. In support of the aforesaid averments, a

copy of the prospectus of SOL for the academic year 2011-12 with

regard to migration/direct admission is enclosed with the counter

affidavit as Annexure R-1.

7. It is further averred by the respondent No.2/SOL in its counter

affidavit that since the last date for migration of students to SOL was

over on 31.12.2011, the student could not be granted any relief as she

had chosen to approach the Court belatedly, in the end of February,

2012. Lastly, it is submitted by the learned counsel for the respondent

No.2/SOL that repeated efforts had been made to explain the aforesaid

position to the petitioner and his ward and they were informed that

they could still approach I.P. College and submit the fee of the student

so that her name would find mention in the rolls of the said college as

a student of B.Com.(Hons.) second year for being considered eligible

for admission within the migration date, but they remained adamant

and were reluctant to take any steps in that direction and instead

approached this Court with the present misconceived petition.

8. In rejoinder, the petitioner, who appears in person states that

respondent No.2/SOL has adopted a pick and choose policy inasmuch

as while denying migration to his daughter, it had admitted a student

by the name of Kanika Modi, who was studying in a college affiliated to

respondent No.1/University and was granted migration to SOL in

September, 2011 on the basis of a Transfer Certificate that was issued

on 27.09.2011 and another student by the name of Rashmi Chaubey,

who was studying in I.P. College along with his daughter and was also

granted migration by the respondent No.2/SOL on the basis of a

Transfer Certificate issued by the college on 12.09.2011.

9. Learned counsel for the respondent No.2/SOL refutes the above

submission and states that a bare perusal of the Transfer Certificates

of the aforesaid two students enclosed as Annexure R-2 and Annexure

R-3 to the counter affidavit would reveal that both of them had paid

their fee upto the end of April, 2012 whereas the Transfer Certificate

issued to the ward of the petitioner would reveal that she had paid her

fee upto the end of April, 2011 and, therefore, her case cannot be

treated at par with the aforesaid two students. Learned counsel for

the respondent No.1/University adds that permission to migrate can

only be granted to a student who is already studying in another

institution or college and in the case of the student herein, this was

not so since she has not been able to show that she had remained

enrolled as a student with I.P. College at the time when she had

submitted her application to the respondent No.2/SOL for seeking

migration.

10. It is further submitted by the learned counsel for the respondent

No.1/University that the last date for migration to the respondent

No.2/SOL was extended till 31.12.2011 for the academic year 2011-12

in terms of a notification dated 26.12.2011 and much water had flown

under the bridge thereafter and it is too late for the petitioner's

daughter to seek admission in the respondent No.2/SOL for the

current academic year. A copy of the notification dated 26.12.2011

issued by the University is handed over on behalf of the respondent

No.1 and is taken on record.

11. The Court has considered the submissions made by the

petitioner as also the counsels for the respondents. The entire dispute

hinges on the non-deposit of fee by the petitioner and his ward with

I.P. College till April, 2012, for which reason, her request for migration

was refused by the respondent No.2/SOL. The records reveal that the

officers of both, respondent No.1/University and respondent No.2/SOL

had advised the petitioner and his ward that the only formality

required to be completed by them was production of proof of deposit

of fee from May, 2011 to April, 2012 in I.P. College and after she had

deposited the said fees, she would be eligible for migration to the

respondent No.2/SOL.

12. It is also apparent from a perusal of the rules applicable in this

regard that when a student is given transfer from one

college/university to another college/university, he/she is required to

pay the full fee to the Institution from which he/she migrates upto the

end of the month in which he/she leaves and in that eventuality,

he/she shall have to pay fee to the new institution only from the next

month in which he/she migrates and it has been clarified that in any

case no student will be charged fee for the same month twice over. As

per the resolution passed by the Executive Council of the respondent

No.1/University, the aforesaid rule applies to the respondent No.2/SOL

as well. Therefore, there is no running away from the fact that the

petitioner and his ward were required under the Rules to pay the full

fee to I.P. College and show the proof of deposit to the respondent

No.2/SOL for seeking migration.

13. When the student had completed her B.Com(Hons.) first year

from I.P. College, and was declared passed on 13.08.2011, instead of

depositing the fee for the second year in the academic session 2011-

12 and continue to be enrolled with I.P. College for the second year, as

was done by Ms. Kanika Modi and Ms. Rashmi Chaubey, the other two

students, she took the Transfer Certificate from the college on

12.09.2011. For the aforesaid reason, the student cannot claim parity

with Ms.Kanika Modi or Ms.Rashmi Chaubey as the aforesaid students

had deposited their fee in the institution/College where they were

studying upto the end of April, 2012 and, therefore, they were treated

as bonafide students in their institutions/colleges on the date when

they had sought migration to the respondent No.2/SOL. The same is

evident from a perusal of their Transfer Certificates issued by their

respective colleges.

14. Resultantly, on the date when she had applied to respondent

No.2/SOL for migration, the student was no longer a student of any

college and therefore, was ineligible for migration as per Ordinance 4

of the Delhi University Act, 1922. It was in the aforesaid background

that the respondent No.1/University had called upon the student to

deposit the fee for the second year with I.P. College to be eligible to be

considered for migration before the cutoff date. However, for reasons

best known to the petitioner and his ward, they refused to deposit the

fee with I.P. College and at the same time insisted that respondent

No.2/SOL accept the student as a migrant student.

15. Instead of fulfilling the requisite formalities, the petitioner then

diverted his energies in gathering documents from the respondent

No.1/University and respondent No.2/SOL by filing applications and

later on, an appeal under the RTI Act. Had the petitioner asked his

ward to simply surrender the Transfer Certificate that she had

obtained from I.P. College, and pay the fee to the said college for the

second year and then approach respondent No.2/SOL with a request

for migration, things would have been simplified without loss of

precious time.

16. The unfortunate result of the aforesaid misadventure is that the

student finds herself in a precarious position of falling from the frying

pan straight into the fire. As of now, she is not enrolled with any

college for the second year and further stands to lose an entire

academic year with a bleak chance of making up the lost time due to

the folly of the petitioner who has been so busy trying to make a legal

point that he seems to have missed the wood for the trees.

17. At the end of the day, what is weighing with the Court is that in

this legal wrangle that the petitioner has embroiled himself and his

daughter, his ward alone stands to suffer. If she is not permitted

migration to the respondent No.2/SOL, she would miss a whole

academic year and this would be an irreparable loss to a student like

her, who appears to be intelligent and hard working, having secured a

third position in her subject in her college. That she had to leave a

prestigious college like I.P. College midstream and seek migration to

the respondent No.2/SOL is a decision that is personal to her but the

manner in which she has been guided to go about seeking migration,

has jeopardized her academic career. She is therefore more a victim

of circumstances, created due to lack of awareness and proper

guidance.

18. If the application of the rule as quoted by the counsels for the

respondents No.1 and 2 is taken to the hilt, the petitioner's ward

would inevitably lose the academic year, entirely to her detriment. In

the given facts and circumstances, the Court is of the opinion that the

student should not be made to pay such a heavy price for lack of

correct guidance by the petitioner to make good the deficiency in her

application for migration, which was purely a procedural formality, i.e.,

depositing the fee upto April, 2012 with I.P. College so as to remain

enrolled with the College till she submitted the application to

respondent No.2/SOL seeking migration. Another factor that has

persuaded the Court to consider the case of the petitioner's ward

sympathetically is that there is no minimum attendance prescribed in

the respondent No.2/SOL for a student to be eligible to appear for the

examinations as it is a correspondence course and the student has

stated that she has been diligently studying and preparing for the

examinations for the 2nd year B.Com(Hons.) course throughout the

year. It is also relevant to note that the petitioner has got wiser during

the course of arguments and has now withdrawn all the allegations

that have been leveled by him against the officials of respondent

No.1/University and respondent No.2/SOL.

19. It is therefore deemed appropriate to exercise the extraordinary

powers vested in this Court under Article 226 of the Constitution of

India and carve out an exception in the present case, by directing

respondent No.2/SOL to grant migration to the petitioner upon her

furnishing proof of having deposited the fees with the I.P. College from

May, 2011 to April, 2012. It is further directed that upon the student

approaching I.P. College for Women, they shall accept the fee that

would be deposited by her from May, 2011 upto the year ending April,

2012 and issue a receipt therefor. The proof of deposit of fee shall be

handed over to the respondent No.2/SOL within one week from today.

This shall, however, not preclude the student from appearing for the

second year examinations for the B.Com.(Hons.) Course that are to

commence from 18.05.2012. Ms.Sneh Gupta shall forthwith submit an

application to the respondent No.1/University and Respondent

No.2/SOL seeking permission to appear for the aforesaid examination

which shall be then processed expeditiously by the respondents to

enable her to appear in the examinations that are to commence from

18.05.2012.

20. While disposing of the present case and leaving the parties to

bear their own costs, it is clarified that the aforesaid order has been

passed in the peculiar facts and circumstances of this case and the

same shall not be treated as a precedent in any other case.

Dasti under the signature of the Court Master.

(HIMA KOHLI) Judge MAY 15, 2012 'anb'/rkb