Indira Gandhi National Open ... vs Presidency Educational Trust
2015 Latest Caselaw 4280 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 27th May, 2015

+                               LPA No.588/2014

       INDIRA GANDHI NATIONAL OPEN UNIVERSITY.. Appellant
                   Through: Mr. Aly Mirza and Mr. Kulish
                            Tanwar, Advs.

                                   Versus

    PRESIDENCY EDUCATIONAL TRUST               ..... Respondent

Through: Mr. Ajay Kapur, Sr. Adv. with Mr. Harshbir Singh Kohli and Mr. Dinesh Kumar, Advs.

Mr. Sanjeev Bhandari & Mr. Manoj Bhandari, Advs. for CBI.

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 31st July, 2013 of the

learned Single Judge of this Court in W.P.(C) No.4297/2012 preferred by the

respondent / writ petitioner. The appeal is accompanied with an application

being CM No.14793/2014, for condonation of 336 days delay in re-filing

thereof. Notice of the appeal as well as the application for condonation of

delay in re-filing was issued. The respondent / writ petitioner has filed a reply

to the said application, opposing condonation of the delay in re-filing. We

heard the counsel for the appellant University as well as the senior counsel for

the respondent / writ petitioner on 21st May, 2015 and reserved judgment.

2. The appellant University had entered into a Memorandum of

Understanding (MOU) dated 17th September, 2007 with the American Hotel

and Lodging Educational Institute (AHLEI) for working together to launch a

three years programme titled B.A. International Hospitality Administration. In

pursuance thereto, the appellant University entered into an MOU dated 26th

May, 2008 with the respondent / writ petitioner whereunder the appellant

University authorized the respondent / writ petitioner for a period of five years

and on the terms and conditions contained therein to conduct the said

programme by imparting face to face education to the students opting to enroll

with the respondent / writ petitioner for the said programme.

3. However the Board of Management of the appellant University in its

113th Meeting held on 31st May, 2012 decided to rescind the said MOU entered

into with the respondent / writ petitioner, being of the view that the appellant

University was neither entitled, under its statute and ordinances to enter into

such an MOU, or to impart face to face education as the mandate of the

appellant University is to impart only distance learning.

4. A communication dated 31st May, 2012 was sent to AHLEI in this

regard, also intimating that all new admissions to the course would be kept in

abeyance. However communication thereof to the respondent / writ petitioner

was made only on 12th June, 2012 and aggrieved wherefrom the writ petition

from which this appeal arises was filed.

5. We may at this stage record that the appellant University had entered into

similar MOUs with others as well including in several other courses /

programmes for imparting face-to-face education. All the said MOUs with

others also, in the meeting dated 31st May, 2012 were agreed to be rescinded

and were rescinded and the others also filed W.P.(C) Nos.5789/2012,

6021/2012, 6399/2012, 6495/2012, 6016/2012, 7521/2012, 7046/2012,

7045/2012 and 7044/2012 in this Court.

6. The writ petition filed by the respondent / writ petitioner and from which

this appeal arises came up first before the learned Single Judge on 20th July,

2012 when the contention of the counsel for the respondent / writ petitioner was

that the respondent / writ petitioner had already admitted students and in case

the admissions were kept in abeyance, the students so admitted would be left

without any alternative admission.

7. In response thereto the counsel for the appellant University appearing on

advance notice stated that the appellant University had no objection with regard

to the students admitted upto 12th June, 2012. Accordingly, while issuing

notice of the petition, the learned Single Judge directed that no further

admissions be made, from that date onwards i.e. 20th July, 2012, by the

respondent / writ petitioner.

8. Vide subsequent orders dated 16th April, 2013, 25th April, 2013 and 8th

May, 2013 in the writ petition from which this appeal arises, the respondent /

writ petitioner was directed to satisfy the appellant University about the

students admitted in the institute of the respondent / writ petitioner in the

aforesaid course / programme in the academic year 2012-2013. When the writ

petition came up before the learned Single Judge on 16th May, 2013, the

counsel for the appellant University again stated that the appellant University

had no objection with regard to the students admitted upto 12 th June, 2012 and

further stated that all the students admitted upto 12 th June, 2012 would be

allowed to appear in the examination and complete the course. However it

appears, that between 12th June, 2012 and 20th July, 2012 i.e. when the learned

Single Judge directed that no further admissions be made, the respondent / writ

petitioner had admitted another nine students. Qua the said nine students, the

appellant University took a stand that they would not be allowed to appear in

the examination. The learned Single Judge however directed the appellant

University to take a realistic and sympathetic view vis-à-vis the said nine

students also.

9. The other writ petitions (supra) were decided by the learned Single Judge

vide judgment dated 23rd July, 2013. The decision of the Board of

Management of the appellant University to rescind the MOU was upheld.

However finding that though the Board of Management of the appellant

University had taken a decision to rescind the MOU in the meeting held on 31 st

May, 2012 but no communication thereof was sent to the writ petitioners (in the

other petitions) till after the students for the academic year 2012-2013 were

admitted, the learned Single Judge directed that students genuinely admitted in

the year 2012-13 would be allowed to complete the course and take

examination etc.

10. The writ petition from which this appeal arises came up before the same

learned Single Judge on 31st July, 2013 when the learned Single Judge

following the judgment dated 23rd July, 2013 in the other writ petitions

disposed of the writ petition filed by the respondent / writ petitioner also with a

direction that the students genuinely admitted to the respondent / writ petitioner

institute for the academic year 2012-13 would be allowed to complete the

course and take the examination etc. The learned Single Judge in the impugned

judgment has noticed that the appellant University even while addressing the

communication dated 31st May, 2012 to AHLEI, neither advertised in the

newspapers that it had directed the institutes with which it had entered into the

MOUs to keep the admissions for such programmes in abeyance nor issued any

public notice warning the students to the said effect and as a result whereof the

students continued to seek admission to the said institutes without knowledge

of the decision of the appellant University to rescind the MOUs. The learned

Single Judge has reasoned that since the appellant University itself had

prematurely terminated the MOU, the interest of the students who had already

taken admission had to be safeguarded.

11. The appellant University is aggrieved from the direction in the impugned

judgment vis-à-vis the nine students admitted between 12th June, 2012 and 20th

July, 2012.

12. Though this appeal was filed after a long delay and with an application

for condonation of delay in re-filing thereof but notice were issued because

LPAs No.755/2013, 756/2013, 757/2013, 758/2013, 759/2013, 760/2013,

761/2013, 762/2013 & 763/2013 preferred by the appellant University against

the judgment dated 23rd July, 2013 of the learned Single Judge in the other writ

petitions had been admitted and the operation of the judgment dated 23 rd July,

2013 (and on which the impugned judgment dated 31st July, 2013 is premised)

had been stayed.

13. The reason given by the appellant University for the delay in re-filing is,

that after the appeal was taken back from the registry of this Court to remove

objections, the file thereof got tagged along with some other files and went

missing.

14. The respondent / writ petitioner has opposed the application for

condonation of delay by contending:

(a) that since the appellant University did not comply with the

impugned judgment by conducting the examinations in November,

2013, CCP No.104/2014 was filed and in which the appellant

University had been seeking time to file reply;

(b) that the appellant University was thus fully aware that no appeal in

the said case has been filed and still did not take any action for

tracing the missing appeal; and,

(c) it is thus not as if the file of the appeal had gone out of horizon of

the appellant University; and the appellant University had notice

that it was in contempt of the judgment dated 31 st July, 2013 of the

learned Single Judge and that there was no stay thereof.

The senior counsel for the respondent / writ petitioner has also argued

that the appellant University is thereby playing with the career of the said nine

students.

15. We may at this stage further record that the LPAs No.755/2013,

756/2013, 757/2013, 758/2013, 759/2013, 760/2013, 761/2013, 762/2013 &

763/2013 preferred against the judgment dated 23rd July, 2013 aforesaid were

also listed before us on 21st May, 2015 when we reserved judgment in this

appeal. However we were informed that none of the institutes therein were left

with any students qua which the directions of the learned Single Judge in the

judgment dated 23rd July, 2013 impugned in those appeals were required to be

complied. Accordingly, those appeals were on 21st May, 2015 disposed of as

infructuous, leaving the question of law open.

16. The first aspect to be considered by us is of delay in re-filing the appeal.

The senior counsel for the respondent / writ petitioner has argued that

considering the nature of the controversy, no case for condonation the delay is

made out. Reliance in this regard is placed on Postmaster General Vs. Living

Media India Ltd. (2012) 3 SCC 563, P.K. Ramachandran Vs. State of Kerala

(1997) 7 SCC 556 Ashok Chand Singhvi Vs. University of Jodhpur AIR 1989

SC 823, Miss Sangeeta Srivastava Vs. Prof. U.N. Singh AIR 1980 Delhi 27

and Municipal Corporation of Delhi Vs. International Security & Intelligence

Agency Ltd. (2004) 3 SCC 250.

17. Having considered the rival submissions, we are of the view that a case

for condoning the delay in re-filing the appeal is made out. Supreme Court in

Indian Statistical Institute Vs. Associated Builders (1978) 1 SCC 483 held that

if initial institution is within time, Section 5 of the Limitation Act, 1963 has no

application. The Courts are liberal in condoning the delay in re-filing.

Reference in this regard can be made to Competent Placement Services

(Regd.) Vs. Delhi Transport Corporation MANU/DE/3069/2010(DB).

The reason therefor is that once a litigant has got an appeal prepared and filed

the same, if it is returned under some objections, the fault thereof is generally

not of the litigant but of the advocate or the paralegal staff and similarly the

delay in re-filing is also not of the litigant but of the advocate or of the

paralegal staff. The litigant should not be saddled for the default of his agent.

18. That brings us to the question whether the direction in the impugned

judgment for the students admitted between 12th June, 2012 and 20th July, 2012

being also allowed to complete the course requires any interference by us in

exercise of letters patent jurisdiction.

19. We may at the outset highlight that it is not the case of the appellant

University that the nine students qua which the dispute relates have not been

found by it to have been genuinely admitted to the respondent / writ petitioner

institute. We therefore proceed on the premise that the said nine students were

also genuinely admitted by the respondent / writ petitioner institute between

12th June, 2012 and 20th July, 2012.

20. Though the appellant University vide its communication dated 31 st May,

2012 had asked AHLEI to keep the admissions to the academic year 2012-13 in

abeyance but the appellant University conceded that since it had not

communicated so to the respondent / writ petitioner institute till 12 th June,

2012, it would allow the students admitted till 12 th June, 2012 to complete the

course. We were during the hearing informed that four students were admitted

till 12th June, 2012 and the appellant University is allowing them to complete

the course / programme which is of three years duration. The senior counsel

for the respondent / writ petitioner of course states that the appellant University

is holding examinations for the said four students also after much cajoling and

delay. It is informed however that the nine students aforesaid have not been

allowed to take the examinations.

21. The question which arises is whether the position of the nine students

admitted between 12th July, 2012 and 20th July, 2012 is any different from the

four students admitted prior to 12th July, 2012. In our opinion no. The four

students were admitted after a decision to rescind the MOU had been taken and

which decision in turn was premised on the appellant University being not

entitled under its statute to enter into the MOU or to impart face to face

education. We have wondered that when the appellant University has allowed

four students to complete the course even after realization dawned on the

appellant University that its action of entering into the MOU with an outside

agency for imparting face to face education and awarding Degrees for the

previous several years was without any sanction, why it should object to the

other nine students. The only difference between the four students admitted

before 12th June, 2012 and the nine students admitted after 12th July, 2012 is

that while till 12th June, 2012 the respondent / writ petitioner institute had no

inkling even of the appellant University reneging from the MOU, on 12 th June,

2012 it had been informed so.

22. We are of the opinion that no fault can be found with the action of the

respondent / writ petitioner institute of not putting the further admission

immediately on hold inspite of receipt on 12th June, 2012 of the communication

dated 31st May, 2012 of the appellant University. By the said communication,

the appellant University informed AHLEI that it had taken a decision 'to review

the MOU between appellant University and AHLEI in the face of queries raised

by the Finance Department of the appellant University as well as the remarks of

the Academic Council of the appellant University and asked AHLEI to furnish

certain information'. Thereafter, it was mentioned "further, new admission in

the programme will be kept in abeyance till the time Committee places its

report to the School Board".

23. The aforesaid communication is to be seen in the light of the fact; i) that

the said communication was not directed to the respondent / writ petitioner and

respondent / writ petitioner was not asked to immediately stop further

admission; ii) the MOU had been in operation for at least four years prior to the

said communication and whereunder students were being admitted by the

respondent / writ petitioner institute; iii) it was the time of admissions and

process of admission had already begun; iv) though the appellant University,

prior to entering into the MOU dated 26th May, 2008 had entered into MOU

dated 17th September, 2007 with AHLEI and the MOU dated 17 th September,

2007 of the appellant University with AHLEI is mentioned in the MOU dated

26th May, 2008 of the appellant University with the respondent / writ petitioner

but it is not as if the respondent / writ petitioner had no privity with the

appellant University; v) the relationship of the appellant University with the

respondent / writ petitioner was independent of the relationship of the appellant

University with AHLEI; vi) it was the respondent / writ petitioner and not

AHLEI which was making admissions; vii) thus if the appellant University

wanted respondent / writ petitioner to stop the admission process, the appellant

University ought to have asked the respondent writ petitioner to stop admitting

students and which was not done; and, viii) even as per the letter dated 31st

May, 2012 no final decision had been taken; the MOUs were only being

reviewed; there is nothing to show when the decision was taken; from the

records relating to the other writ petitions / appeals, it appears that such a

decision was taken some time in August, 2012. Thus, no fault can be found

with the admission of the said nine students also.

24. We therefore do not find any reason to treat the aforesaid nine students

any differently from the other four students whom the appellant University is

permitting to complete the course.

25. Resultantly, the appeal is dismissed. The appellant University to now

forthwith diligently comply with the directions of the learned Single Judge

without causing any further harm to the said nine students.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE MAY 27, 2015/„gsr‟