Sachin Katyal vs University Of Delhi & Anr
2015 Latest Caselaw 5805 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 11th August, 2015

+       W.P.(C) No.6985/2015 & CM No.12808/2015 (for stay)
        SACHIN KATYAL                                             ..... Petitioner
                           Through:      Mr. Varun Dhingra, Adv.

                                      versus

    UNIVERSITY OF DELHI & ANR                 ..... Respondent

Through: Mr. Mohinder J.S. Rupal, Adv for Delhi University.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petition impugns the procedure prescribed by the respondents

University of Delhi for admission to Super-Specialty (DM/M.Ch.) courses

and seeks mandamus directing the respondents University to admit the

petitioner to the M.Ch. course 2015-2018.

2. Notice of the petition was issued on 23rd July, 2015 and since the

second round of counselling was scheduled to be held on the very next date

i.e. 24th July, 2015 it was directed that the petitioner, without prejudice to the

respective rights and contentions be permitted to participate therein so that

by the next date it could be known whether the petitioner at all has a chance

for admission or not. On the next date of hearing it was informed that instead

of allowing the petitioner to participate in the second round of counselling

the respondents University of Delhi had deferred the second round of

counselling to second week of August, 2015. Counter affidavit has been

filed by the respondents University of Delhi. The counsels were heard on 6th

August, 2015 and judgment reserved.

3. The petitioner is an aspirant for admission to M.Ch. course in

Paediatric Surgery in Maulana Azad Medical College affiliated to the

respondents University. He has in the Entrance Test held for the said

admission achieved Rank „8‟ but was, in the counselling held on 10 th July,

2015, not considered for admission owing to having not fulfilled the criteria

laid down in Clause 2.3.3 of the Bulletin of Information published by the

respondents University for admission to Super-Speciality (DM/M.Ch.)

courses for the session 2015. Clause 2.3.3 requires a candidate for

admission to the said course to have passed the Post-Graduate (MD/MS)

examination on or before 30th June, 2015.

4. The petitioner claims to have done his Master of Surgery (M.S.) from

M.K.C.G. Medical College, Behrampur, Orissa but the result of the final

examination taken in the month of May, 2015 wherein, has been declared

only on 13th July, 2015. The said University however, on the request of the

petitioner, sent the result of the petitioner, even prior to the declaration

thereof on 13th July, 2015, in confidence, to the respondent University.

5. It is the contention of the petitioner that Clause 2.3.3 of the Bulletin of

Information supra merely requires „passing the M.S. examination‟ before

30th June, 2015 and which the petitioner had done. It is contended that the

requirement of the said Clause is not of the result „having been declared‟. It

is also the contention of the petitioner that had the respondents University

announced the result of the Entrance Test before the 30th June, 2015, as was

provided for in its Bulletin of Information, the confidential result also would

have been informed before 30th June, 2015. It is yet further argued that the

declaration of result is not in the hands of the petitioner as a student the

petitioner ought not to be made to lose one year inspite of having qualified

for admission.

6. It was the contention of the counsel for the respondents University

during the hearing on 23rd July, 2015, i) that the date of 30th June, 2015 had

been fixed as per the order dated 6th July, 2012 of this Court in W.P.(C)

No.3785/2012 titled Jayanta Bain Vs. Guru Gobind Singh Indraprastha

University; and, ii) that another candidate having "Rank 4" i.e. ahead of the

petitioner had also not been called for the second round of counselling then

scheduled for 24th July, 2015 for the same reason. However, after perusing

the said order dated 6th July, 2012 and finding that the same was not of

adjudication by this Court but was merely of extension of the date then

provided of 31st May, 2012 for clearing the qualifying examination to 30th

June, 2012, that too with the consent of the parties, the said contention was

rejected observing that the date of 30th June, 2012 could not be said to be

sacrosanct for the said reason. To ensure that the petitioner does not steal a

march over others meted out the same treatment by the respondents

University, while directing the participation as aforesaid of the petitioner in

the second round of counselling, the respondent University was directed to

inform other candidates, similarly placed as the petitioner, also to participate

in the counselling then scheduled on 24th July, 2015.

7. On 23rd July, 2015, going through the Bulletin of Information of the respondents

Delhi University it was also found that the same, in the matter of admission

to certain other courses/programmes, provides for a procedure of making

provisional admission subject to the result of qualifying examination

being submitted by a subsequent cut-off date. The respondents University

was as such directed to disclose as to why the same procedure had not been

adopted for the subject course.

8. The respondents University has contested the petition contending that;

(i) the sale of Bulletin of Information started on 17 th April, 2015 and closed

on 11th May, 2015; the last date for receipt of applications also was 11th

May, 2015; (ii) Clause 1.3 of the Bulletin of Information required the

candidates to go through the same carefully and Clause 1.15 provides for the

decision of the Post Graduate Admission Committee being final in case of

any dispute subject to the appeal thereagainst to the Vice Chancellor of the

University; Clause 2.3.3. unequivocally provides that for being eligible for

admission, the applicant must have passed the Post Graduate (MD/MS)

examination on or before 30th June, 2015; (iii) the petitioner submitted his

admission form being aware of the Clause aforesaid; (iv) the result of the

petitioner the Post Graduate examination (qualifying examination) was

admittedly not declared by 30th June, 2015; (v) the petitioner and another

similarly placed candidate were vide letter dated 6 th July, 2015 of the

respondents University informed that they are not eligible for admission; (vi)

the petitioner has intentionally suppressed the letter dated 6 th July, 2015 and

not even challenged the same; (vii) the first counselling was held as

scheduled on 10th July, 2015; the petitioner and others similarly placed as

him were allowed to participate therein since sometimes the candidates are

able to bring the hard copy of the result from their respective institutions /

universities in order to show that the result was declared on or before 30 th

June, 2015; (viii) however the petitioner and four other candidates were not

able to show that their result of the Post Graduate examination was declared

by 30th June, 2015 and were therefore not given admission and their

candidature cancelled forthwith; (ix) as per Clause 2.7.3 of the Bulletin of

Information, if any vacancy in a course/discipline arises on account of the

candidate offered and granted admission not joining the same or leaving

after joining, the vacant seat would be offered in the second counselling to

the candidates from the waiting list according to merit; (x) since the

petitioner is not in the waiting list, his candidature having already been

cancelled, he cannot attend the second round of counselling; this waiting list

was put on the website of the respondents Delhi University on 21 st July,

2015 and which also has not been challenged by the petitioner; (xi) that the

challenge by the petitioner only to Clause 2.3.3 and that too only on 23 rd

July, 2015 when the second counselling was due to be held on 24 th July,

2015 is not maintainable; and, (xii) of the eight seats available in M.Ch.,

Paediatric Surgery, seven have already been filled up in the first counselling

itself and only one seat remains to be filled up in second counselling out of

the wait listed candidates.

No reply has been given to the query raised and recorded in the order

dated 23rd July, 2015 and mentioned in para 7 above.

9. The counsel for the respondents University, in addition to the

aforesaid, during the hearing referred to Mridul Dhar Vs. Union of India

(2005) 2 SCC 65 to contend that the Supreme Court, for Super Specialty

courses, has prescribed, i) the last date for declaration of the result of the

qualifying examination / entrance examination as 30 th June; ii) for the first

round of counselling / admission to be over by 25 th July; iii) the last date for

joining the allotted college and course as 31st July; iv) the second round of

counselling wherever permissible from waiting list only; and v) no second

counselling has been prescribed for Super Specialty courses. Reliance was

also placed on Priya Gupta Vs. State of Chhattisgarh (2012) 7 SCC 433 to

contend that the schedule so prescribed has the force of law and is not to be

violated.

10. Clause 2.3.3 supra is as under:-

"2.3.3 The candidate must have passed the Post-Graduate (MD/MS) examination, as per details mentioned below (in the light of the Hon'ble High Court order dated 06th July, 2012 in the matter of Jayanta Bain Vs. University of Delhi [W.P.(C) No.3785/2012], on or before Tuesday 30th June, 2015 of the University of Delhi or any other examination recognized equivalent thereto by the University of Delhi and Medical Council of India."

11. It was as such enquired from the counsel for the respondents

University whether a candidate, who has taken the qualifying examination

and who has also „passed‟ the same before 30th June, 2015 but whose result

has not been declared for whatsoever reason, would be treated as "pass"

within the meaning of the aforesaid Clause.

12. The answer was in the negative. It was contended that the candidate

cannot be treated as „pass‟ till the result has been „declared‟.

13. It being the case of the petitioner that though the M.K.C.G. Medical

University from which he has taken the qualifying examination declared the

result only on 13th July, 2015, had on the request of the petitioner sent the

result in confidence to the respondents University of Delhi prior thereto, the

date on which the said result was sent in confidence was enquired.

14. Though the said date was not available but it was informed that it

must have been after 30th June, 2015 only inasmuch as the request therefor

was made only on 5th July, 2015. The counsel for the petitioner of course

contended that had the respondents University of Delhi declared the result

of the entrance examination by 30th June, 2015 as also prescribed in Mridul

Dhar supra instead of on 3rd July, 2015 as was done, he would have asked

the M.K.C.G. Medical University from which he has passed the qualifying

examination, to send the result in confidence before that. The counsel for the

respondents University however contended that even if the result of the

qualifying examination in confidence had been received prior to 30 th June,

2015, the same having not been declared would not have been considered.

15. I may in this regard notice Clause 2.4.3 of the Bulletin of Information

though attention thereto was not drawn by either of the counsels. The same

is as under:-

"2.4.3 The candidate, who has not passed qualifying examination (MD/MS/DNB) at the time of submitting the application and is likely to pass the qualifying examination on or before 30th June, 2015, must submit the attested copies of the certificates as mentioned at Sr. No.6,7 & 8 in Clause - 2.4.2 latest by 30th June, 2015, failing which their candidature will not be considered."

The counsel for the respondents Delhi University also stated that what

was submitted in confidence by the M.K.C.G. Medical College, Behrampur,

Orissa from which the petitioner has done the qualification examination was

the mark sheet and not the result.

16. The respondents University as Annexure R-3 to its counter affidavit

has filed a Merit List of candidates for counselling to be held on 10th July,

2015. The same was obviously prepared after the declaration of result on 3 rd

July, 2015 of the entrance test and before the 1st round of counselling on 10th

July, 2015. The petitioner is shown as having Rank 8, in the said list.

However against the name of the petitioner as also names of rank Holders 4,

6 to 14, 16, 17 and 20 the words "Required MS Degree and Attempt

Certificate" are mentioned. It is obvious therefrom that the respondents

University, though as per Clause 2.4.3 supra of its bulletin of information

required submission of result of qualifying examination by 30 th June, 2015,

accepted the same till 10th July, 2015, as also expressly admitted in the

counter affidavit. The letter dated 6th July, 2015 is inexplicable in the said

context. I also wondered that if the result could be accepted till first round

of counselling, it could be so accepted till second round also. The counsel

for the respondents University explained that only if the result submitted by

10th July, 2015 showed to have been declared by 30 th June, 2015, is the

candidate considered for admission. It was further explained that the second

counselling is done only from the waiting list prepared of candidates during

the first counselling and thus the factum of the result of the petitioner having

been declared by the date of the second counselling is irrelevant. Attention

in this regard was drawn to Clause 2.7.3 of the Bulletin of Information

which is as under:-

"2.7.3 Counselling for each course/discipline would be held separately i.e. discipline wise. If the course/discipline is available, in more than one Institution the candidate would make his choice in regard to the Institution, subject to availability as per merit. He would accordingly be issued an admission/allotment letter. He should join the course and Institution within the date specified.

If any vacancy in a Course/Discipline arises on account of the candidate offered admission and not joining the same or leaving the course after joining, these (vacant seats) would be offered in the 2nd Counselling to the candidates from the waiting list according to the merit. The matter of holding the 2nd Counselling would be the same as would be for the 1st Counselling.

No individual communication would be sent to the candidates in the waiting list and they should report on the date and time specified for the 2nd Counselling in the Bulletin of Information.

For each discipline the candidates in the waiting list would be those who were not offered admission in that Discipline."

17. The counsel for the respondents University also drew attention to the

waiting list prepared and published on 21st July, 2015 for admission to

M.Ch. in Paediatric Surgery and in which the name of the petitioner does not

find mention. The said waiting list is of candidates having rank 14 & 17

respectively i.e. below rank 8 of the petitioner in the merit list prepared

earlier.

18. Clause 2.7.3 supra is not found to be providing for preparation of wait

list of only those candidates who in the first counselling have submitted

documents showing declaration of results of qualifying examination by 30 th

June, 2015. All that the same stipulates is that the waiting list is to be

according to merit. According to the merit list prepared for 10th July, 2015,

the petitioner is higher in rank than the two now put on the waiting list. No

basis is found for preparation of wait list only of those who were able to

show the result of their qualifying examination to have been declared before

30th June, 2015 during the first counselling held on 10 th July, 2015. In the

merit list prepared for counselling to be held on 10th July, 2015 the position

of petitioner and those whose names find mention in the wait list was the

same i.e. the result of both had not been declared.

19. It is thus indeed found that the procedure adopted by the respondents

University was/is at variance with that provided in the Bulletin of

Information, in the following respects :

a) The result of entrance test was announced on 3rd July, 2015 instead of 30th June, 2015.

b) The candidates were permitted to submit the result of qualifying examination till the 1st counselling on 10th July, 2015 when as per Clause 2.4.3 it was to be accepted till 30th June, 2015 only.

c) The waiting list prepared is not according to merit as provided in Clause 2.7.3 but a criteria of having shown by 10 th July, 2015, to have passed the qualifying examination by 30 th June, 2015 is introduced therein.

20. As far as the argument of the respondents University of the petitioner

having known of the terms in the Bulletin of Information from the day when

it was published in April, 2015 and being not entitled to challenge the

procedure prescribed of admission after participation thereunder and

remaining unsuccessful, is concerned, the said same in my view would not

be attracted here. The petitioner, in April, 2015 could not possibly have

known that the University from which he has done the qualifying course

would not be declaring the result by 30th June, 2015. The declaration of the

result is not in the hands of the examinees. The petitioner thus had no

occasion to challenge the same.

21. Similarly, non disclosure by the petitioner of the letter dated 6 th July,

2015, in the facts and circumstances of the present case, is not found to be

such so as to disentitle the petitioner to the relief. Though Clause 2.4.3 of the

Bulletin of Information required submission of attested copies of the

certificates of passing the qualifying examination latest by 30th June, 2015

but the merit list prepared for the counselling on 10th July, 2015 is found to

contain endorsement as quoted above not only against the name of the

petitioner and the two candidates put on the waiting list but also against the

name of the rank holders 4,6,7,9,10,11, 16 and 20. The respondents Delhi

University admittedly, till the first counselling on 10th July, 2015, was

permitting the students to produce their result of the qualifying examination.

The respondents University in their counter affidavit have admitted that

some of the candidates admitted produced their result / notification during

the counselling on 10th July, 2015 itself. In view thereof, the letter dated 6th

July, 2015 is of no avail.

22. No merit is also found in the contention, of the petitioner having not

challenged the wait list and in which his name was not shown. The wait list

is dated 21st July, 2015 and this petition came up first before the Court on

23rd July, 2015. Merely because while making challenge, one of the

documents which could also have been challenged has not been named

would not make any difference as long as in the context of the challenge

made, the challenge thereto also is implicit.

23. I am also unable to appreciate the distinction made between „passing‟

an exam and „declaration of result of an exam‟. The respondent University,

in the present case, well before the date (10th July, 2015) till which it was

admittedly allowing the candidate to furnish proof of having passed the

qualifying examination, was informed from the mark sheet of the qualifying

examination taken by the petitioner sent in confidence by the University

from which the petitioner had taken the qualifying examination that the

petitioner had passed the same. However the said result had not been

„declared‟ or „published‟ till then. The counsel for the petitioner during

the hearing handed over the proforma prescribed by the respondents

University itself for making an application for "Issue Of Confidential

Result". The same is indicative of the respondents University itself

recognizing the practice prevalent of accepting such result of another

University for avoiding the hardship to the student because of delays of the

University in publication and declaration of the result.

24. I am unable to find any rational nexus of the objective of stipulating a

date for having passed the qualifying examination with the distinction carved

out from amongst all those who have by the stipulated date passed the

examination, between those whose result has been „declared‟ / „published‟

and those who though have passed the examination but whose result has not

been published or declared by the University. The objective of stipulating a

date is to provide a certainty and finality to the admission process and not

allow it to remain open ended endlessly, thereby delaying the

commencement of academic session. However if before that date the

candidate is shown to have passed the qualifying examination, in my view it

is immaterial whether the said result is declared/published or not. As

aforesaid, the respondents University itself vis a vis admission to some other

courses is following the procedure of granting provisional admission subject

to furnishing by subsequent date proof of having passed the qualifying

exam. Inspite of direction, no explanation has been given for not following

the same procedure qua subject course, specially when a second round of

counselling is being held. The insistence on declaration/publication of result

of qualifying exam by a stipulated date has nothing to do with eligibility for

admission to a higher specialty course. A candidate whose result has been

declared/published cannot be said to be more meritorious than the candidate

who though has by the stipulated date also passed the qualifying

examination but whose result has not been declared/published when both

have cleared the qualifying examination in same academic year.

25. This Court as far back as in Deepika Chaudhary Vs. University of

Delhi 64 (1996) DLT 503 observed that a candidate successful in admission

test ought not to be ordinarily rejected for the failure to furnish the result /

mark sheet of the qualifying examination. It was held that a student exercises

no control over the declaration of the result and not communicating the

result within the stipulated time cannot be attributed to the student. It was

reasoned that the University has to consider the welfare of the student and

the impact of cancellation of admission and ought to exercise discretion on a

case to case basis. It was further held that the provision has to be

benevolently interpreted and reasonably administered. The Supreme Court

in Shalini Vs. Kurukshetra University 2002 (2) SCC 270 also observed that

a student cannot be faulted for the delay on the part of the University in

declaring the result, dispatching the same or even in re-evaluation of the

answer book when has taken all steps promptly without any delay,

remissness or laches in taking any of the steps. The same view was echoed

by the undersigned in Utkarsh Sharma Vs. Union of India

MANU/DE/3167/2010 and by another Single Judge in Parvesh Kumar Vs.

University of Delhi MANU/DE/1467/2013. Reference may also be made to

Deep Gupta Vs. Guru Gobind Singh Indrapastha University

MANU/DE/1187/2008 observing that the object of the rule allowing

candidates whose results in the qualifying examination are not declared by

the time their turn for counselling arrives, to furnish their result of the

qualifying examination is to save them from being deprived of admission to

the concerned course for reasons beyond their control as it is the concerned

board or the examining body which has to declare the results of the

qualifying examinations. Similarly in Rishabh Malhotra Vs. University of

Delhi MANU/DE/4887/2013, LPA 610/2012 preferred whereagainst was

dismissed on 6th September, 2012, also it was observed that the students

cannot be penalized for the delays in declaration of results.

26. It will thus be seen that it has been the consistent opinion of this Court

that technicalities beyond the control of the student ought not to be permitted

to come in the way of meritorious students. The Courts have always held

that the discretion in such circumstances needs to be exercised in favour of

the student.

27. Moreover, the respondent University in its own Bulletin of

Information, in the clauses aforesaid has stipulated the requirement only of

"passing" the qualifying examination and not of result thereof being

declared/published. As long as the respondent University, by the date

stipulated therefor and which though was 30th June, 2015 but was extended

by respondents University to 10th July, 2015, could be satisfied by

documents produced that the candidate has passed the qualifying

examination in that academic year, the insistence on the candidate also

establishing that the said result had been declared/published is uncalled for

and has no relation to the purpose sought to be achieved i.e. that the

candidate is qualified for admission to the next stage of learning.

28. That leaves the argument, of consideration of the candidature of the

petitioner being not permissible in accordance with the dicta of the Supreme

Court in Mridul Dhar and Priya Gupta supra.

29. As per the said dicta, the respondents University of Delhi were

required to declare the result of the Entrance Examination by 30 th June; they

also provided so in their Bulletin of Information. The respondents University

of Delhi however itself did not abide thereby and admittedly declared the

result of the Entrance Examination of 3rd July. Again, as per the said

schedule, for Super Specialty courses there is to be no second round of

counselling or allotment of seats from waiting list. Notwithstanding the

same, the respondents University of Delhi are going ahead with the same.

Once the respondents University of Delhi are themselves found to be

tinkering with the said schedule, they cannot on the other hand apply the

same strictly to the students.

30. For all the aforesaid reasons, the procedure followed by the

respondents University of Delhi is not found to be in accordance with their

own Bulletin of Information and is found to be arbitrary and unreasonable.

The petitioner is thus entitled to be considered for admission at least in the

second round of counselling.

31. I am conscious that a direction to the aforesaid effect if issued would

be to the prejudice of those whose names are included in the wait list

declared and who have not been heard. However, once the defect is found in

the procedure followed by the University, the same does not come in the

way of grant of relief to the petitioner.

32. The petition, for the aforesaid reasons, is allowed by directing the

respondents University of Delhi to draw up a revised waiting list of

candidates eligible to participate in the second round of counselling for

admission to the M.Ch. Paediatric Surgery course from the merit list

prepared for the first counselling on 10th July, 2015 of those who by that date

had produced the result, whether declared or not, of having passed the

qualifying examination and who could not be offered a seat in the first round

of counselling.

33. The petition is disposed of.

No costs.

RAJIV SAHAI ENDLAW, J

AUGUST 11th, 2015 „pp‟..