Shivam Shresthi Thr His Father ... vs Delhi Technological University
2014 Latest Caselaw 3469 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 1st August, 2014

+                                LPA 714/2013

       SHIVAM SHRESTHI THR HIS FATHER
       SHIVESH CHANDRA SHRESTHI                   ..... Appellant
                   Through: Dr. N.K. Khetarpal, Adv.
                                    versus
    DELHI TECHNOLOGICAL UNIVERSITY        .....Respondent

Through: Ms. Zubeda Begum & Ms. Sana Ansari, Advs.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 11th September, 2013 of

the learned Single Judge of this Court of dismissal of W.P.(C) No.5069/2013

preferred by the appellant. The said writ petition was filed, pleading:-

(i) that the appellant, after securing 293902 overall rank and 84411

category rank in All India Engineering /Architecture Entrance

Examination (AIEEE) 2012 applied to the respondent University

for admission in the B.Tech Programme 2012-2013 under the sub-

category of Ex-Servicemen under the category „Children / Wards

of Defence Personnel (CW)‟;

(ii) that the appellant appeared for counseling on 26th June, 2012 under

the CW category but the respondent University while verifying the

documents, arbitrarily converted the appellant‟s category from

CW category to General category;

(iii) that the appellant filed W.P.(C) No.5921/2012 in this regard which

was disposed of vide order dated 15th May, 2013 holding that the

appellant was entitled to admission under the Wards of Ex-

Servicemen, Defence Personnel category in the respondent

University in the Academic Year 2012-2013 and had been

wrongly denied the said admission but since there were no seats

left / available in that academic session, directing "that the

petitioner would get the benefit of succeeding in the petition but

one year later which is an unavoidable situation on account of time

having been elapsed during the pendency of the petition";

(iv) that though the respondent University in compliance of the

aforesaid order, in the Academic Year 2013-2014 offered

admission to the appellant in the stream of Engineering Physics

but applying the criteria of seat allocation for the year 2013-2014

and not the criteria for the year 2012-2013 as per which the

appellant was entitled to admission in the stream of Mechanical

Engineering; and,

(v) that though the appellant had also filed a Cont. Cas. (C)

No.584/2013 for non-compliance of the order dated 15th May,

2013 in W.P.(C) No.5921/2012 but the same was dismissed on 2 nd

August, 2013 giving liberty to the appellant to file a fresh petition.

Accordingly, the writ petition from which this appeal arises was filed

seeking a direction to the respondent University to admit the appellant to

B.Tech. Mechanical Engineering in the Academic Year 2013-2014.

2. The respondent University filed a counter affidavit to the writ petition

inter alia pleading, (i) that as per the admission policy of the respondent

University all admissions are made as per merit rank of the candidates in their

respective categories; 85% of the seats are for Delhi candidates and which are

further divided into General, Scheduled caste (SC), Scheduled Tribe (ST) and

Other Backward Classes (OBC); likewise the balance 15% seats for outside

Delhi category are further divided into General, SC, ST and OBC category; (ii)

as far as the Defence quota is concerned, 5% from Delhi quota seats and 5%

from outside Delhi quota seats are earmarked for admission under the Defence

quota; the candidates eligible for Defence quota are further considered priority-

wise; while there were five priorities applicable for the Academic Session

2012-2013, two more priorities were included with effect from the Academic

Session 2013-2014; (iii) that the appellant / petitioner belongs to the outside

Delhi OBC category and falls under the newly incorporated Priority VI of the

seven sub-categories of Defence Personnel category; and, (iv) that according to

the rank of the appellant / petitioner, the priority under which he falls and the

availability of the seat, the petitioner had been offered admission in the stream

of Engineering Physics.

3. The learned Single Judge vide order dated 9th September, 2013 directed

the counsel for the respondent University to file an affidavit stating whether

any seat in the stream of Mechanical Engineering was available in the

Academic Year 2013-2014.

4. In compliance thereof an affidavit was filed stating that there was only

one seat for outside Delhi OBC candidates in the Defence category in the

stream of Mechanical Engineering and the same had been filled by eligible

candidate and no seat was vacant as on that date.

5. On the basis of the said affidavit, the learned Single Judge, holding that

"no relief is possible to the petitioner" dismissed the writ petition.

6. The appeal came up first before this Bench on 27 th September, 2013

when the counsel for the respondent University appearing on advance notice

was directed to produce the record and list of selected candidates. The matter

was adjourned from time to time and ultimately on 15 th April, 2014 notice of

the petition was issued and observing that the respondent University had not

had an opportunity to file a detailed counter affidavit before the learned Single

Judge, an opportunity therefor was given.

7. No counter affidavit has been filed; however the counsel for the

respondent University states that it was erroneously recorded that the counter

affidavit had not been filed when as aforesaid it had been filed. We accordingly

heard the counsels and reserved judgment.

8. We, at the outset enquired from the counsel for the appellant / petitioner,

that more than one year of the B.Tech. course in Engineering Physics to which

the appellant, without prejudice to his contention had been admitted having

elapsed, whether the appellant is interested in fresh admission in the Academic

Session 2014-2015 and as to how the relief sought can now be given to the

appellant.

9. The counsel for the appellant / petitioner stated that the course contents

of all streams of B.Tech in the first year is the same and if the appellant /

petitioner succeeds, a direction for now in second year, transferring him to the

stream of Mechanical Engineering can be passed.

10. We thus heard the counsels on merits.

11. The argument of the counsel for the appellant / petitioner is simple. It is

contended that, (a) as per judgment / order dated 15th May, 2013 in the earlier

writ petition and which has attained finality, the appellant was eligible for

admission in the Academic Year 2012-2013 but was wrongly denied

admission; (b) if the appellant had been admitted in the Academic Year 2012-

2013, he would have got the stream of Mechanical Engineering; (c) the

appellant is thus, as per judgment / order dated 15th May, 2013 entitled to

admission in the Academic Year 2013-2014 also in the stream of Mechnical

Engineering.

12. We may at the outset record that in the order dated 15 th May, 2013 in

W.P.(C) No.5921/2012 earlier filed by the appellant, there is no discussion of

the stream to which the appellant was eligible for admission in that academic

year. This Court in the said order, while directing the petitioner to be admitted

in the next Academic Year 2013-2014, also did not specify the stream in which

the appellant was to be admitted.

13. Per contra the counsel for the respondent University states that since the

appellant during the counseling held for admission in the Academic Year 2012-

2013 was not considered in the admission in Wards of Ex-Servicemen, Defence

Personnel category, the question of considering whether he was eligible for

admission in the Mechanical Engineering stream or not did not arise and the

appellant today cannot contend that the admission wrongfully denied to him in

the Academic Year 2012-2013 would have been in the stream of Mechanical

Engineering.

14. We are however of the view that the need for investigating the said

question does not arise. Though undoubtedly the Division Bench of this

Court vide order dated 15th May, 2013 in W.P.(C) No.5921/2012 earlier filed

by the appellant had directed the appellant / petitioner to be admitted in the

next Academic Year 2013-2014 without participating in the admission

process therefor but otherwise a Division Bench of this Court (of which one

of us Rajiv Sahai Endlaw, J) was a member, in Rajat Goel Vs. Ministry of

Human Resource and Development (Govt. of India)

MANU/DE/7235/2011, on a conspectus of the case law has held:-

A. that the Court cannot issue an order directing admission in the next academic

session on the basis of admission test of the previous year;

B. that granting admission in the next academic session in such a manner will

necessarily be at the cost of the aspirants for admission in the next academic

session - the seats available to them for admission would thus stand reduced;

C. that this Court cannot issue such an order, prejudicial to persons who are not

even before this Court; and,

D. the admissions for the next academic session are to be on the basis of the

academic test to be held therefor and a candidate cannot be made successful

in that admission test without appearing and competing in the same, as the

same would tantamount to winning a race without participating in the same

and which is against all canons of justice, equity and good conscience.

The appeal thereagainst being SLP No.9544/2012 was dismissed on 2nd April, 2012.

15. Undoubtedly the direction of the Division Bench in the order dated 15th May, 2013 in

W.P.(C) No.5921/2012 filed by the appellant / petitioner is contrary to the above. However

while the Division Bench in order dated 15th May, 2013 was not directly concerned with the

said aspect, the Division Bench in Rajat Goel was adjudicating the said aspect only and thus

in our view it cannot be said that there is any inconsistency. Also, though the Division Bench

in order dated 15th May, 2013 directed admission of the appellant in the next Academic

Session 2013-2014 but without specifying the stream. For this reason also there is no conflict

between the orders / dictas of the two Division Benches.

16. Mention in this regard may also be made of the judgment dated 2nd May, 2014 in

LPA No.343/2014 of this Bench in Pankaj Kumar Tiwari Vs. Vice Chancellor, University

of Delhi wherein also it was held that the reward of success in one competition cannot be

given in another competition in which the petitioner has not participated / competed. It may

however be mentioned that the judgment in Dr. Mundhe Kailas Maharudra Vs. AIIMS

MANU/DE/3113/2010 of one of us (Rajiv Sahai Endlaw,J.) referred to in Pankaj Kumar

Tiwari (supra) was set aside by the Division Bench vide judgment dated 29th November,

2010 in LPA 726/2010. However in view of the subsequent judgments of the Division

Bench in Rajat Goel and Pankaj Kumar Tiwari, we choose to follow the view taken

therein.

17. While in compliance of order dated 15th May 2013, the appellant /

petitioner has been granted admission but following the law laid down in

Rajat Goel, the appellant cannot be held entitled to admission in the stream

to which he might have been entitled to in the previous year. It is not in

dispute that applying the admission process for the academic year 2013-

2014, the appellant was not eligible for admission into the Mechanical

Engineering stream.

18. We therefore do not find any merit in this appeal.

19. The counsel for the respondent University has during the course of

hearing also handed over the result / mark sheet of the appellant in the first

year to show that the performance of the appellant is quite poor.

20. The appeal which is dismissed; however no costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE AUGUST 01, 2014 pp..