Shri Ram College Of Commerce vs Sunny Goel & Ors.
2014 Latest Caselaw 4272 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 9th September, 2014

+                               LPA No. 574/2014

       SHRI RAM COLLEGE OF COMMERCE        ..... Appellant
                   Through: Mr. Amit Bansal & Ms. Senjul
                            Khanna, Advs.

                                   Versus
       SUNNY GOEL & ORS.                               ..... Respondents
                   Through:           Mr. Sunil Goel with Mr. Susheel
                                      Bhartiya, Advs. for R-1.
                                      Mr. Saurabh Banerjee, Adv. for R-2.
                                      Mr. R.K. Singh, Adv. for R-3.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the judgment dated 25th August, 2014 of

the learned Single Judge of this Court allowing W.P.(C) No.4415/2014 filed by

the respondent No.1 herein.

2. The counsel for the respondent no.1 / writ petitioner and the counsel for

the respondent No.2 University of Delhi and the counsel for the respondent

no.3 Central Board of Secondary Education (CBSE) appeared on advance

notice and with the consent of the counsels, we heard the appeal finally and

reserved judgment.

3. The writ petition from which this appeal arises was filed seeking a

direction to the appellant College and the respondent No.2 University to give

admission to the respondent no.1 / writ petitioner in the undergraduate course

of B.Com (H) in the appellant College in the academic year 2014-15. It is inter

alia the case of the respondent no.1 / writ petitioner:

(a) that as per the result declared by the respondent no.3 CBSE on

29th May, 2014 of the Higher Secondary examination (Class XII),

the respondent no.1 / writ petitioner had secured 95.50% aggregate

marks in the best of four subjects including English;

(b) that the respondent no.1 / writ petitioner being not satisfied with

the marks given to him in the subject of English, in accordance

with the rules of the respondent no.3 CBSE, applied for

verification (re-totaling) of marks, then for obtaining photocopy of

his answer sheet and thereafter for re-evaluation of answer sheet;

(c) that in the meanwhile, the admission process in the respondent

No.2 University for the academic session 2014-15 began and the

respondent no.1 / writ petitioner applied on the basis of the

95.50% marks secured by him, filling up the first choice, for the

appellant College;

(d) that on 1st July, 2014, the first cut-off list for admissions was

declared and the appellant College declared a cut-off of 97.50%

for B.Com (H) for the General Category - the respondent no.1 /

writ petitioner having 95.50% marks was thus not eligible for

admission to the appellant College;

(e) that the appellant College, in the second cut-off list declared on 4th

July, 2014, declared a cut-off of 97.25% for admission to B.Com

(H) for the General Category students - the respondent no.1 / writ

petitioner having 95.50% marks was still not eligible;

(f) that the respondent no.1 / writ petitioner on the basis of 95.50%

marks was admitted to the B.Com (H) course / programme in

Hindu College of the respondent No.2 University;

(g) that the respondent no.3 CBSE vide its letter dated 10th July, 2014

informed the respondent no.1 / writ petitioner of increase in his

marks in the subject of English Core in re-evaluation, from 87% to

95%, thereby taking the aggregate marks of the respondent no.1 /

writ petitioner to 97.50%;

(h) that the respondent no.1 / writ petitioner on 11th July, 2014 itself

approached the appellant College for admission but was denied,

for the reason of the appellant College having closed the

admissions.

4. The learned Single Judge has allowed the writ petition and has directed

the appellant College to forthwith grant admission to the respondent no.1 / writ

petitioner in the B.Com (H) course for the academic year 2014-15, if required,

by creating a supernumerary seat; a direction in this regard has been given to

the respondent No.2 University also, reasoning:

(i) that no fault could be attributed to the respondent no.1 / writ

petitioner as he had pursued his rights and legal remedies without

any delay;

(ii) that had there been no delay on the part of the respondent no.3

CBSE in releasing the result of re-evaluation whereby the

respondent no.1 / writ petitioner's marks in the subject of English

were increased, the respondent no.1 / writ petitioner would have

been admitted in the B.Com (H) course in the appellant College in

the normal course as his marks are more than the cut-off;

(iii) that if the argument of the appellant College and the respondent

No.2 University, of no admission upon closure thereof being

possible, were to be accepted, the entire exercise of re-evaluation

would lose its significance and meaning - re-evaluation could not

be made an exercise in futility - it has to have some significance

and import--after all a student applies for re-evaluation not just

for statistical reasons but to take benefit of the increase in marks, if

any;

(iv) reliance was placed on Asha Vs. Pt. B.D. Sharma University of

Health Sciences (2012) 7 SCC 389 where even the strict cut-off

date stipulated for entrance to medical colleges was held capable

of being waived in certain circumstances when it would result in

complete ruining of the professional career of a meritorious

candidate;

(v) that the respondent no.1 / writ petitioner till the last cut-off date for

admission had expired could not be denied the logical

consequence of increase in marks upon re-evaluation;

(vi) that the respondent no.2 University in Jainidh Kaur Vs. St.

Stephen's College MANU/DE/2252/2011 had undertaken before

the Court to admit all students, even if they produce their marks

after re-evaluation, till the last cut-off date, irrespective of the

availability of seats;

(vii) that the argument of the appellant College and the respondent No.2

University, that the cut-off date referred to in the undertaking

given in Jainidh Kaur (supra) referred to the cut-off date of a

particular course of a particular college and not to cut-off date

stipulated by the respondent No.2 University was not correct and

the appellant College and the respondent No.2 University could

not be permitted to treat the respondent no.1 / writ petitioner

differently.

However keeping in view the fact that the overwhelming

majority of the students admitted to the respondent no. 2

University belong to the CBSE Board, the learned

Single Judge directed the Chairman, CBSE to have a meeting with the Vice

Chancellor of the respondent No.2 University to ensure that from the next

academic year, students' re-evaluated marks are taken into account while

granting admission to colleges of the respondent No.2 University.

5. The contentions of the counsel for the appellant College are:

(A) that the direction of the learned Single Judge is violative of the

Schedule of admission laid down by the respondent No.2

University;

(B) that the appellant College cannot be directed to admit students

beyond its maximum capacity; the University Grants Commission

(UGC) releases funds to colleges as per their maximum intake

capacity of students and the creation of supernumerary seat as

directed by the learned Single Judge would upset the finances of

the appellant College;

(C) that the reliance placed by the learned Single Judge on the undertaking

given by the respondent no. 2 University in Jainidh Kaur (supra) is

misplaced as the said undertaking was only to admit students till

the last cut-off date; the last cut-off date for admission to the

appellant College was 7th July, 2014 and the respondent no.1 / writ

petitioner had approached with re-evaluated marks thereafter;

(D) that the learned Single Judge erred in not following the judgment

of the Division Bench of the Punjab & Haryana High Court in

Mandeep Kang Vs. Punjab University (2000) 126 (3) PLR 153

laying down that the last date for considering eligibility of a

student for admission is the cut-off date stipulated for admission;

(E) that it is not as if the respondent no.1 / writ petitioner has not been

admitted to any college; he has already taken admission to the

B.Com (H) course / programme in Hindu College of the

respondent No.2 University;

(F) apprehensions are expressed that the judgment of the learned

Single Judge, if allowed to become a precedent, would make

admissions an endless exercise, delaying the commencement of

the academic session; reliance is placed on U.P. Public Service

Commission Vs. Alpana (1994) 2 SCC 723.

6. We have put to the counsel for the appellant that the Schedule of

admission, which the judgment of the learned Single Judge is argued to be

violating, has been fixed by the respondent No.2 University only and the

respondent No.2 University having not made any grievance with respect to the

judgment, the appellant College has nothing to worry. On enquiry, the counsel

for the respondent No.2 University states that the University is in the process of

deciding whether to challenge the impugned judgment.

7. The counsel for the respondent no.3 CBSE supports the respondent no.1 /

writ petitioner.

8. The counsel for the respondent no.1 / writ petitioner besides supporting

the judgment of the learned Single Judge has contended that the judgment of

the High Court of Punjab & Haryana in Mandeep Kang (supra), in para no.7

thereof also carves out an exception qua re-evaluated marks.

9. We have considered the rival contentions. We agree in entirety with the

reasoning given by the learned Single Judge and particularly the reasoning of

‗re-evaluation cannot be an exercise in futility'. We may also add that the

judgment of the learned Single Judge is in consonance with the consistent view

of other High Courts in i) Deepa Vs. Maharishi Dayanand University

MANU/PH/0844/2002 (DB), ii) Apurav Chandel Vs. State of H.P.

MANU/HP/0175/2009 (DB), iii) Rajendrakumar Chandrakant Nadkarni Vs.

University of Bombay MANU/MH/0024/1991 affirmed by the Division Bench

of that Court in Yudhvir Singh Vs. Dr. Babasaheb Ambedkar Marathwada

University MANU/MH/0145/1998, iv) Ku. Sadhana Vs. Vikram University,

Ujjain MANU/MP/0041/1986 (DB), v) Anjay Bansal Vs. Bangalore

University MANU/KA/0037/1990, vi) Fateh Kumari Sisodia Vs. State of

Rajasthan MANU/RH/0046/1997 and vii) Shatrudhan Upadhaya Vs. Union

of India MANU/GH/0158/2012 (DB). Reference in this regard can also be

made to University of Kerala Vs. Sandhya P. Pai MANU/KE/0074/1991 (DB)

though not concerned with the issue as before us, but generally considering the

effect of the delays in re-evaluation and containing a useful discussion on the

relationship between the Universities and their students.

10. As far as the argument of the counsel for the appellant College, of the

direction of the learned Single Judge if allowed to stand making the admission

process an endless exercise delaying the commencement of the academic

session is concerned, we find the same to be misplaced. As far as the academic

year 2014-15 is concerned, the last date for admission stipulated by the

University i.e. of 29th July, 2014 has elapsed. What the learned Single Judge

has held is that till the said date, admission on the basis of re-evaluated marks

cannot be denied. Thus, the possibility of others approaching for admission on

the re-evaluated marks does not arise. As far as the future academic years are

concerned, the learned Single Judge has already directed a mechanism to be

devised therefor. We are confident that the Vice Chancellor of the respondent

No.2 University and the Chairman of the respondent no.3 CBSE in their

wisdom would be able to take care of the issue. The counsel for the appellant

College has argued that the eligibility for admission in the appellant College is

not only on the basis of examination conducted by the respondent no.3 CBSE

but also on the basis of the examination conducted by other Boards all over the

country. He has thus suggested that a discussion between the Chairman of the

respondent no.3 CBSE and the Vice Chancellor of the respondent No.2

University would not solve the problem. The said argument is again without

any basis and unreasonably doubts the acumen of the highest decision making

office in the respondent No.2 University. We are sure that the Vice Chancellor

of the respondent No.2 University, while devising the solution for future would

take care of the said aspect as well.

11. The undertaking given by the respondent No.2 University in Jainidh

Kaur (supra) was to ―admit all students even if they only produce their marks

after re-evaluation till the last cut-off date irrespective of availability of seat‖.

The argument of the counsel for the appellant College that the cut-off date

referred to in the said undertaking is the cut-off date of individual college

affiliated to the respondent No.2 University and not to the cut-off date fixed in

the admission schedule announced by the respondent No.2 University and

which admittedly was 29th July, 2014, is fallacious. If the reference was to the

cut-off date of individual Colleges, the question of the individual colleges

admitting students more than their maximum intake capacity would not have

arisen inasmuch as the student / candidate with higher marks on re-evaluation

would be admitted and the need for the undertaking also stating

―.... irrespective of availability of seat‖ would not have arisen. The need for

undertaking stipulating that the students will be admitted irrespective of

availability of seat arises only to take care of situation where the colleges had

already closed their admissions and the student with re-evaluated marks

approaching thereafter though within the cut-off date fixed by the respondent

No.2 University. We thus agree with the learned Single Judge that the cut-off

date referred to was the date stipulated by the respondent No.2 University. The

respondent no.1 / writ petitioner had approached the appellant College and the

respondent No.2 University much prior to 29th July, 2014.

12. The appellant College is the premium college of Commerce in the city

and enjoys an enviable position. The same is obvious from the appellant

College being the first choice of the respondent no.1 / writ petitioner also.

Thus the argument of the counsel for the appellant College of the respondent

no.1 / writ petitioner being not entitled to any relief on account of admission in

another College is but to be rejected. The appellant College can always on the

basis of this judgment approach the UGC for release of additional funds. We

also agree with the counsel for the respondent no.1 / writ petitioner that the

judgment of the Punjab & Haryana High Court in Mandeep Kang (supra)

cannot be said to be holding otherwise as the same itself carves out an

exception for students with re-evaluated marks. Similarly, the judgment of the

Supreme Court cited by the counsel for the appellant College is in the matter of

recruitment, the principles wherein are entirely different. The petitioner in that

case was found to be not even eligible to apply and that is not the position here.

We therefore do not find any merit in this appeal which is dismissed.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE SEPTEMBER 09, 2014/‗gsr'