Dr. Rajeev Kumar vs Union Of India & Ors
2014 Latest Caselaw 3462 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of decision: 1st August, 2014.

+                                     W.P.(C) 2275/2010

       DR. RAJEEV KUMAR                                        ..... Petitioner
                    Through:               Mr. Prashant Bhushan with Mr.
                                           Pranav Sachdeva, Advocates.

                                      Versus

       UNION OF INDIA & ORS                                 ..... Respondents
                    Through:               Ms. Meera Bhatia, Adv. for UOI.
                                           Mr. Dhananjay Baijal and Mr. Nikhil
                                           Nayyar, Advs. for R-4.
                                           Mr. Anand Varma, Adv. for R-5.
                                           Mr. Arjun Mitra, Adv. for R-6.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

CM No.8178/2014 (for directions)

1. The writ petition filed in public interest concerns alleged

discrepancies, irregularities and arbitrariness in the Joint Entrance

Examination (JEE) conducted by the Indian Institutes of Technology (IITs).

2. This application was filed for interim directions, pleading:

(i) that several hundreds of seats remain vacant in IITs each year;

(ii) that the seats lying vacant have a cascading effect, as the same

number of seats remain vacant in successive second, third and fourth

years too;

(iii) that till the year 2004, some of such vacant seats were filled up

with the wards of the employees and faculty members of IITs who

were otherwise not eligible for admission;

(iv) that the High Court of Andhra Pradesh in order dated 30 th

April, 2011 in W.P.(C) No.17774/2010 titled N. Ravali Vs. Union of

India observed that our society can ill afford to leave such large

number of seats go abegging when students are willing to join them

and expressed hope that remedial measures are put in place to prevent

the same from the next academic year;

(v) that subsequent to the said order, the IITs introduced third

round of counselling in JEE 2011, though the main issue of seats

lying vacant remained unaddressed;

(vi) that seats remain vacant due to a candidate getting admission in

a number of institutes/colleges by depositing the admission fee and

thus blocking the seats in many institutes/colleges;

(vii) that the petitioner had suggested online counselling or common

counselling to prevent seats lying vacant;

(viii) that the Ministry of Human Resource Development (MHRD)

had vide Office Memorandum dated 27th June, 2013 constituted a

Joint Seat Acceptance Committee (JSAC) but the same also could not

remedy the said problem owing to IITs not co-operating in the same;

Accordingly, a direction is sought in the application to the

respondent IITs to address the said issue.

3. The respondent No.5 IIT Kharagpur which is concerned with the

admissions in this academic year has filed a reply, inter alia stating:

(a) that the issue of vacant seats has been constantly addressed by

the IITs;

(b) that a number of seats fall vacant due to the lower popularity of

some of the courses; the IITs, over a period of time evaluate and if

constantly find a lower preference for a course, ultimately withdraw

the said course; however some of the courses constituting the

backbone of the education system, even though not high on demand

amongst job seekers, cannot be done away with, even if they do not

get filled up to the maximum capacity;

(c) that a large number of SC, ST and Persons with Disability seats

remain vacant due to absence of eligible candidates; this issue has

however been addressed by developing a one-year preparatory

programme for such categories;

(d) that a few seats get freed up due to a candidate having a seat in

IIT opting out for joining any National Institute of Technology (NIT)

(what were earlier called Regional Engineering College) or a Foreign

University; these seats remain free in the first year; however in the

second year, some of the seats are taken up by other candidates

through change of stream mechanism;

(e) that the third and last round of counselling for admission to the

academic year 2014-2015 was completed on 12th July, 2014 to ensure

that the academic session commenced as scheduled on 17th July,

2014;

(f) that as of now, there are no vacant seats in any course /

category, except three vacancies in the ST category, due to non-

availability of eligible ST candidates;

(g) that the petitioner's suggestion of synchronisation of seat

allocation between IITs and NITs is unworkable;

(h) that the common seat allocation procedure for IITs and NITs

also poses various complexities;

(i) that the MHRD has vide order dated 13th March, 2014

constituted a Technical Committee to sort out the process flow

differences between the IITs and NITs to arrive at a common

counselling based on best practices and which Committee had its first

meeting on 17th April, 2014 and is in the process of formulating a

system for addressing the issue of vacant seats and which system will

be considered for implementation in the year 2015, subject to

availability of a viable scientifically correct scheme and well

scheduled software code.

4. We heard the counsels on 21st July, 2014. The counsel for respondent

no.5 IIT Kharagpur informed that the admission process insofar as academic

year 2014-2015 is concerned, stood completed and the academic session had

commenced on 17th July, 2014. On the contrary, the counsel for the

petitioner argued that more seats than three were likely to remain vacant in

the academic year 2014-2015 as well because the admissions to the NITs

were still on and students admitted to IITs, if get a better subject stream in

the NITs would leave their seat in IITs and for filling up thereof, there is no

mechanism. He suggested that since two sessions of counselling for

admission in NITs had by then already taken place, the students who have

occupied seats in IITs and have subsequently taken admission in NITs

should be asked to immediately make a choice of which seat they want to

retain and the seats so falling vacant should be filled up.

5. We, vide order dated 21st July directed the counsels to:

"(a) Place the rules of admission to IITs and NITs, particularly the rules disclosing the time within which the student is required to join and till what date a student is awaited.

(b) Inform whether the reserve seats, if not filled up, can be transferred to the general category and if not why.

(c) Inform whether the Supreme Court has prescribed any last date for admission into NITs and IITs and if not, as to why this Court cannot direct admissions to the vacant seats till say end of August by when the admissions into NITs are to be completed."

Being of the opinion that before issuing any direction, the Central

Seat Allocation Board (CSAB) which is the body admitting students to the

various NITs should also be heard, the counsels were also requested to

ensure the presence of CSAB before this Court on the next date of hearing.

6. After further hearing counsels on 23rd July, 2014, orders were

reserved. The counsel for the respondent IITs informed that except for the

seats reserved for the physically disabled, which if remain unfilled are

released to the General category, there is no provision for transfer of

unfilled SC & ST category reserved seats to General category. It was

further informed that no last date for admission into IITs has been

prescribed in any judgment of the Supreme Court. It was however

contended that if admissions were directed to be made after the

commencement of the academic session, the same would affect the merit. It

was further informed that as per the Rules of IITs, the student is required to

be physically present on the date of commencement of the academic session

and mere payment of fees is not sufficient; however for compelling reasons

extension of three working days can be given. It was also informed that if

subsequent to registration at IIT, a student decides to take admission in any

NIT or a Foreign University without prior information to the IIT, there is no

procedure by which the particular IIT would be aware of the seat being

vacant, till the completion of the mid semester examination in the third

week of September--thus seat can be determined as vacant only once the

mid semester examination has been completed. The counsel for the

petitioner of course contended that the reporting/registration date in some of

the IITs was 24th / 25th July and 3rd August, 2014. It was also argued that

there is no sanctity to the date for admission/registration and the IITs can

always fix the date for admissions, after the admission to the NIT is

completed, so that the seats vacated by those who have taken admission to

NITs are also filled up. It was also argued that the IITs ought to devise a

procedure for knowing of the vacancy before the completion of the mid

semester examination and as soon as the same occurs. None appeared for

CSAB.

7. We have bestowed our thoughtful consideration to the matter.

Though undoubtedly the issue flagged by the petitioner is of vital

importance and it is in national interest that no seats in such premium

educational institutions of the country as IITs are wasted but at the same

time, it cannot be forgotten that for the sake of filling up the seats, the

academic calendar devised by the professional experts at IITs, owing to

whose efforts the said institutions have today reached the exalted position

which they occupy, leading to the vacant seats therein being called a

national waste, cannot be disturbed. The IITs are perceived to be better than

NITs, perhaps for commencing their academic session well before the NITs,

as is evident from the academic session of the IITs having already begun,

while the process of admission in NITs is stated to go on till August, 2014.

Thus, the filling up of vacant seats cannot be at the cost of maintaining

standards of education and merit in IITs.

8. A Division Bench of this Court in M.I. Hussain Vs. N. Singh 125

(2005) DLT 223 held that seats remaining vacant is no reason to fill them up

by admitting non-meritorious students. Another Division Bench in

Maharaja Agrasen Institute of Technology Vs. Guru Gobind Singh

Indraprastha University 116 (2005) DLT 290 held that once the dramatic

performance starts, no one is allowed to enter - similarly counselling of

seats must stop once the course of study commences. Again, in Sunint

Kaur Vs. GGSIP University ILR (2005) Del 215, this Court held that even

if seats are not filled, that cannot be a ground for making midsession

admissions.

9. The Supreme Court also in Arvind Kumar Kankane Vs. State of U.P.

(2001) 8 SCC 355 held that if counselling goes on continuously for a long

time, it will upset the course of study. Similarly, in Neelu Arora Vs. Union

of India (2003) 3 SCC 366 it was held that when a detailed scheme has been

framed and the manner in which it has to be worked out is indicated therein,

merely because a certain number of seats are not filled up, is not a reason

enough for adopting one more round of counselling, if there is no scope

therefor under the scheme. It was held to be not advisable to go on altering

the scheme as and when seats are found vacant.

10. Applying the aforesaid principles, we are not inclined to issue any

directions for the current academic year, which in IITs has already begun.

11. It is otherwise rather intriguing to know that the IITs and the NITs

which are providing consultancy to others on technical matters, are unable

to themselves find a solution for synchronising the admissions to eliminate

or atleast minimize the issue of vacant seats. The said institutions

themselves and their students are best equipped to, in today's time of

technology, when software programmes developed by IITians are serving

nearly every human need, to find a solution to the malady which admittedly

exists and cure whereof has eluded all. Certainly they do not need years

together to develop a programme for such synchronisation of admissions.

They cannot afford any red-tapism in this regard and which if becomes

known to the world at large, may make them a laughing stock in the eyes of

their clients. We have wondered whether it is a proverbial situation of it

being darkest beneath the lamp.

12. Having cited the judgments aforesaid of the Supreme Court, we must

also refer to Charles K. Skaria Vs. Dr. C. Mathew (1980) 2 SCC 752 laying

down that the Courts must see that no costly seat for advance studies, in

which the community as a whole has stake, is wasted; the Court should not

give up the search for alternatives. Similarly, the Court in Archit Vashisht v.

GGSIP University MANU/DE/8569/2007 observed that public interest

element of ensuring that seats should not be wasted or allowed to lapse, is to

be balanced with another important public interest in maintaining certain

academic standards.

13. We therefore dispose of this application with the following directions:

(i) The MHRD to ensure that the Technical Committee constituted

vide order dated 13th March, 2014 aforesaid holds regular

sittings/consultations, as frequently as required, and sorts out the

process for common counselling for admissions to NITs and IITs and

the said process is implemented for admissions from the academic

year 2015-2016. To ensure the same, the MHRD to call for regular

reports from the Committee and fix a date for the Committee to

submit the report and ensure that the suggestions in the said report are

incorporated in the admission procedure published by the IITs and the

NITs in the academic year 2015-2016;

(ii) The petitioner is given liberty to, if so desires, make his

suggestions to the MHRD within two weeks and which suggestions,

if made, shall be forwarded by the MHRD to the Technical

Committee for consideration;

(iii) Liberty is given to the parties to approach this Court for further

directions, if any need for ensuring the same;

(iv) The MHRD as well as the IITs to also consider, whether the

reserved category seats in the IITs, if remaining unfilled, can be

transferred to the General category and take a decision on the said

aspect on or before 30th November, 2014 and place the same before

this Court;

(v) During the hearing, we enquired whether there exists any

provision for lateral entry into the IITs in the second year, as exists in

some Universities/Colleges. We were informed, there is none. The

MHRD as well as the IITs to also on or before 30 th November, 2014

consider, whether a provision for such lateral entry into IITs in

second year from the students of NITs and other engineering colleges

can be made and to place a report on that aspect also before this

Court.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE AUGUST 01, 2014.

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