Antariksh Anand vs Guru Gobind Singh Indraprastha ...
2013 Latest Caselaw 4479 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision: 27.09.2013

+      W.P.(C) 5956/2013

       ANTARIKSH ANAND                         ..... Petitioner
                   Through: Ms Maninder Acharya, Sr. Adv with
                   Mr Yashish Chandra, Adv.

                           Versus

       GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY &
       ORS                                    ..... Respondent
                    Through: Mr Ravi Sikri with Ms Neha
                    Bhatnagar, Adv for R-1
                           Mr Sudhir Nandrajog, Sr. Adv with Mr Ankit
                           Jain, Adv for R-2
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
V.K. JAIN, J. (ORAL)

The petitioner before this Court is a student of the second year of

B.Tech. course of respondent No. 2-HMR Institute of Technology and

Management, which is affiliated to respondent No. 1-Guru Gobind

Singh Indraprastha University. On 28.05.2013, the petitioner applied to

the respondent No. 2-Institute for grant of No Objection Certificate

(NOC), for the purpose of migrating to another institute affiliated to the

same University. Vide order dated 03.06.2013, the Director of

respondent No. 2-Institute rejected the application of the petitioner for

grant of NOC, on the ground that though the petitioner had sought

migration on the ground of distance, though he was residing at the very

same place, where he took admission with the said institute. Another

reason given was that institute has buses available from all parts of

Delhi. Thereafter, the petitioner obtained NOC from respondent No.3-

Maharaja Surajmal Institute of Technology for grant of admission to

him in the said institute and vide application dated 25.07.2013 again

applied to respondent No. 2-Institute for grant of NOC. Along with the

said application, he submitted a copy of the NOC which respondent No.

3-Insitute had granted to him. Since no response from the respondent

No.2-Instiute was forthcoming, the petitioner also approached the Vice

Chancellor of the respondent No. 1-University seeking his intervention

in the matter. The petitioner made yet another representation to

respondent No. 2-Institute on 06.09.2013, seeking grant of NOC on

medical grounds. The said application was accompanied by a medical

certificate. However, the NOC sought by him has not been granted to

the petitioner. Feeling aggrieved, the petitioner is before this Court

seeking grant of NOC for migrating from respondent No. 2-HMR

Institute of Technology and Management to respondent No. 3-Maharaja

Surajmal Institute of Technology.

2. The learned counsel for respondent No. 2, who appears on

advance notice, wants some time to file his counter-affidavit. The

learned counsel representing the University, however, states that

30.09.2013 is the last date for granting migration from one institute

affiliated to the University to another institute affiliated to it and they

need at least two days time to take a decision in the matter. In these

circumstances, it is not possible to adjourn the mater for the purpose of

enabling respondent No. 2 to file its reply. I have, however, heard the

learned senior counsel for respondent No. 2 on merits of the case.

3. In Sumeet Sawhney VS. The Principal Sri Aurvindo College &

Ors., CWP 3089/95, decided on 19.10.95, the writ petitions filed by the

students, seeking migration from one college to another college in Delhi

University was opposed on the ground that the NOC was refused (i) to

maintain and improve the academic standards of the College by

retaining the good students; and (ii) to maintain the student-teacher ratio

on the basis of which maintenance grant is given to the college by the

University Grant Commission. A Division Bench of this Court, inter

alia, held :-

"Though the anxiety of the Staff Council and the College to maintain and improve the academic standard of the College as also their anxiety to

maintain the student teacher ratio, may be appreciated but at the same time, we find it difficult to accept the contention that in order to achieve the said objects, the students can be compelled against their desire and wish to continue study in a particular college. Undoubtedly no student has any vested right to seek migration but the real question in these cases is not about the vested right of the students, but it is about the legality of the stand of the College from where migration is sought. Can No Objection Certificate be refused to a student when the College to which admission is sought, is willing to give admission to that student. The answer to this question has to be in favour of the student. Where a student with a view to improve his career wants to join another college, which student feels is better and thinks that he would be able to make a better mark in another college to deny migration to such a student on the grounds stated by the College from which migration is sought, would be unjust and unreasonable. The grant of permission to migrate may be discretionary but the discretion is required to be exercised on sound legal principles and by adopting just, fair and reasonable approach. Ordinarily this Court may not interfere in exercise of discretion in academic matters but where the career of students is involved and the approach of college is not just and reasonable, the Court has to come to the aid of aggrieved students. As already noticed above, the stand of the University and the College to which migration is sought is also that students cannot be compelled to study in a particular college. Further apart from the decision of the Staff Council, no other provision has been brought to our notice barring migration. On the other hand Ordinance- 4, as noticed above, specifically permits migration. It may also be noticed that while

operating aforesaid Ordinance in practice the student who is to apply for No Objection Certificate from which he seeks migration, would do so only when he has been ensured admission in any other college and, therefore, the question of violation of Ordinance-4 does not arise."

In Aman Ichhpuniani vs. Vice Chancellor, Delhi University

1998 (71) DLT 202, the petitioners before this Court, approached the

colleges in which they were studying at that time for issue of NOC for

the purpose of migration to another college affiliated to Delhi

University. In the first writ petition before this Court, NOC was sought

on the ground that the petitioner wished to migrate to reputed college in

North Campus, which would be more convenient to him and in the

second writ petition, NOC was sought so as to enable the petitioner to

pursue a computer course and Chartered Accountancy, without clash of

timings with the afternoon classes, the petitioner being a student of

Bhagat Singh College (Evening). In the third case, NOC was sought on

the ground that the classes in the college clashed with the computer

classes of the petitioner in the afternoon and, therefore, she wanted to

migrate to a morning college. In the 4th case, no reason was given for

the proposed migration. However, in the application to the college

where the petitioner was seeking migration, she had claimed that the

said college was near to her residence and considering the erratic bus

service, she wanted to migrate to the said college. In all these cases, the

application seeking migration was turned down, without passing a

speaking order.

Disposing of the writ petitions, this Court held as under:-

"(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. Ordinance-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."

The Division Bench allowed the writ petitions filed by the

students who wanted migration since their timings in Bhagat Singh

College (Evening) clashed with other courses they were seeking to

pursue. The other two writ petitions were rejected on the ground that no

specific reasons had been assigned in the application seeking migration.

In W.P(C) No.4467/2013, Shashank Shandilya versus Guru

Govind Singh Indraprastha University decided on 19.8.2013, this

Court deduced the following legal proposition from the above referred

Division Bench Judgment of this Court:

(i) Though a student has no vested right to seek migration from one college to other or for that matter from one university to another, his desire to study in an educational institution of his choice needs to be examined and appreciated in a right perspective.

(ii) If a student seeks migration certificate/NOC for the purpose of migrating from one college to another in the same university or from one university to another, such a request should be examined by the institution, taking into consideration the interest of the student as well as the institution in which he is studying and the decision so taken should be just, reasonable and fair, to both, the institution as well as the student.

(iii) The request of a student for grant of NOC/ Migration

Certificate can be rejected only for the reasons which are cogent, objective, fair, transparent and reasonable.

(iv) If the decision taken by the institution to refuse the migration certificate/ NOC is found on reasons which are not legal or germane or are arbitrary and illogical, it would be open to the Court to interfere with the decision of the institution, in exercise of its jurisdiction under Article 226 of the Constitution.

4. In view of the legal proposition as deduced by this Court in

Shashank Shandilya (supra), the request of the petitioner for grant of

NOC should have been considered by the Principal/Director of the

institute taking into consideration the interest not only of the institute,

but also of the petitioner. Such consideration was required to be

followed by a decision which is just, reasonable and fair to the

institution as well as to the student.

5. A perusal of the application dated 28.05.2013 submitted by the

petitioner would show that he had sought migration on account of some

personal circumstances. The circumstances, however, were not

disclosed in the letter. The NOC was refused observing that the

petitioner was seeking it on the ground of distance from the Institute

which was already known to him at the time he took admission.

However, the learned counsel for the petitioner submits that the distance

between the institute and the residence of the petitioner was not the sole

ground as would be evident from further communications sent by him to

the Institute. Vide letter dated 25.07.2013, the petitioner informed the

respondent No.2-Institute that he was under a lot of stress and tension

since first year due to the problem he had already discussed with the

Director of the Institute. He also stated that migration to respondent

No.3-Institute would give him time to pursue NCC, GATE Coaching,

etc. The aforesaid request was followed by the request dated 19.08.2013

and 06.09.2013. The petitioner had also enclosed a Medical Certificate

dated 03.09.2013, issued to him by Dr. M.N. Lal Mathur of Mata

Chanan Devi Hospital, certifying therein that the petitioner was

suffering from Generalized Anxiety Disorder with Sadness and

migration would help him to attain emotional stability and overcome his

sickness. The doctor had subjected the petitioner to psycho diagnostic

test before giving the aforesaid advice. However, no attempt was made

by the respondent No.-2-Insitute to consider the request of the petitioner

afresh in the light of the grounds pleaded in the subsequent applications

and the medical certificate issued by his doctor. The respondent No.2-

Institute, in my view, was required to consider the fresh applications of

the petitioner for grant of NOC, particularly the application which was

accompanied by a medical certificate, issued by a qualified doctor,

highlighting the psychological problems being faced by the petitioner.

The institute for the reasons best known to it, adopted an obstinate

attitude in the matter by not making an attempt to re-consider the

request of the petitioner even in the light of medical advice. The interest

of the petitioner thereby was entirely overlooked by the institute. The

approach of respondent No. 2-Institute, in my view, was not in

conformity with the decisions of the Division Bench of this Court in

Aman Ichhpuniani (supra) and Sumeet Sawhney (supra). I also find

that the decision rejecting the request of the petitioner for grant of NOC

did not indicate how and in what manner the respondent No.2-Insititute

would be prejudicially affected if NOC sought by the petitioner is given

to him.

6. In Shashank Shandilya (supra), this Court had upheld refusal of

NOC primarily on the ground that the institution from which the

migration was sought was getting no financial support either from the

Government or from the University and had to meet its expenses only

from the fee it charges from the students and if NOC was granted, there

was likelihood of one seat in the said Institute remaining vacant for as

many as three years. It was noted that the expenses of the Institute for all

infrastructure required to maintain and run the institute were fixed and

so was the number of teachers and employees working there and

therefore, in case the seat occupied by the petitioner remained unfilled

for three years, that would be detrimental to the institute which cannot

reduce its expenses, infrastructure, faculty or employees. It was noted

that the petitioner before the Court had not come out with an offer to

pay the remaining fee of the course to the Institute. It was specifically

observed that had such an offer been made to the petitioner, it would not

have been possible for the institute to take the plea of financial hardship,

in case the petitioner was allowed to migrate to another institute.

However, in the present case, the learned counsel for the petitioner

stated, on instructions, that in case NOC is granted to the petitioner by

respondent No. 2-Insitute and as a result thereof the seat vacated by the

petitioner remains vacant, the petitioner would be willing to pay the

tuition fee which he would otherwise be liable to pay to the said institute

during the rest of the course. In view of the aforesaid offer made by the

petitioner, no financial hardship in the event of NOC being granted can

be claimed by respondent No. 2-Institute.

7. The learned counsel for respondent No. 2-Institute relied upon the

decision in Chetal Goel Ors. vs. University of Delhi & Anr. 2005 VIII

AD (Delhi) 316, where this Court in the context of migration from one

college affiliated to Delhi University to another college affiliated to the

same University observed that the faculty would be adversely affected if

the students who had achieved excellence in the examination are

secreted away by other colleges and depleted number of students in the

course would not only cause financial strain on the college, but also

have a demoralizing effect on the faculty. However, in para 3 of the

judgment, the Court took the view that in such cases cogent reasons

must be given by the students for seeking migration and the decision

taken by the college should not be capricious, arbitrary or unreasonable.

However, in the present case, the petitioner is seeking migration on

medical and other grounds and the respondent No.2-Institute has not

even applied its mind to the grounds on which the subsequent

applications were submitted by the petitioner for grant of NOC. This

clearly indicates that the Institute was not inclined even to consider the

request in a objective manner and wanted to somehow stick to the

decision initially taken by it even though the distance between the

institute and the residence of the petitioner was not a ground given in the

subsequent applications seeking grant of NOC. On the other hand, the

learned counsel for the petitioner referred to Anika Jain vs. University

of Delhi and Anr. 156 (2009) Delhi Law Times 13, where the petitioner

had sought migration on the ground of residential problem and

considering that she was a young girl who had to commute from

Shahdara to Rohini, it was held that the decision of the Principal not to

allow migration could not be sustained being arbitrary and coloured by

perceived welfare of the college alone. However, one fact which

distinguishes that case from the case before this Court is that in the

aforesaid case, there was a change in the residence of the petitioner, who

at the time of taking admission was residing near the college, but had

later on shifted to a distant locality. In Neelam Chopra vs. University of

Delhi 164(2009) Delhi Law Times 301, another judgment relied upon

by the learned counsel for the petitioner, the petitioner had sought

migration on the ground that her college was situated at a distance of

more than 15 kilometres from her residence and since she was suffering

from allergic rhinitis, travelling long distance aggravated her health

problem. Allowing the writ petition, it was held by the Court that grave

injustice would be caused to the petitioner if she would not be granted

the „NOC‟.

8. For the reasons stated hereinabove, the writ petition is allowed

and the respondent No.2-HMR Institute of Technology and

Management is directed to issue the requisite NOC for migration of the

petitioner from the said institute to respondent No.3- Maharaja Surajmal

Institute of Technology subject to the petitioner depositing either with

respondent No. 2 or with the Registrar General of this Court, within a

week, the entire tuition fee and other charges, she would have paid to

the respondent No. 2- HMR Institute of Technology and Management

for the rest of the course. If the amount is deposited in the Registry, the

respondent No. 2-Institute shall be entitled to withdraw the aforesaid

amount from the Registry, on furnishing undertaking that the seat

vacated by the petitioner shall not be filled by it. In case the amount is

deposited directly with the Institute, the seat vacated by the petitioner

shall be kept vacant, for the rest of the course. The writ petition

stands disposed of. No order as to costs.

Dasti under the signature of Court Master.

V.K. JAIN, J

SEPTEMBER 27, 2013 BG