Amita Agarwal vs National Law University Delhi & ...
2016 Latest Caselaw 2835 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 19th April, 2016

+      W.P.(C) 7582/2012 & CMs No.19254/2012 (for stay) & 3524/2015
       (for interim relief)

       AMITA AGARWAL                                         ..... Petitioner
                  Through:             Mr. Anjani Kumar Mishra, Adv. with
                                       petitioner in person.
                                 Versus
    NATIONAL LAW UNIVERSITY DELHI & ORS ..... Respondents

Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. S.D. Sharma, Adv and Mr. Ravindra Chingale, Adv. for R-1.

Ms. Padma Priya and Ms. Nivedita Ghosh, Advs. for R-3.

Mr. Anant Prakash, Adv. for R-4.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition was filed impugning the list of provisionally selected

candidates for admission to Doctor of Philosophy (Ph.D.) Programme 2012-13

published at the respondent no.1 National Law University‟s website on 1 st

October, 2012 and 12th October, 2012 and seeking mandamus to the respondent

no.1 University to cancel / modify the result, with the averments:

(i) that the petitioner was a candidate for admission to the Ph.D.

course 2012 conducted by the respondent no.1 University;

(ii) that the admission was to be through a written test conducted by

the respondent no.1 University, with the candidates who have

qualified for University Grants Commission-National Eligibility

Test (UGC-NET) / Junior Research Fellowship (JRF) / State

Level Eligibility Test (SLET) / Master of Philosophy (M. Phil.)

being exempt from taking the admission test and on the basis of a

presentation by the qualifying candidates before the Doctoral

Committee on the proposed topic of research;

(iii) that the petitioner submitted her Ph.D. thesis within the prescribed

time till 12th May, 2012 but the last date for submitting the thesis

was extended to 13th August, 2012;

(iv) that the petitioner was by e-mail dated 9th August, 2012 of the

respondent no.1 University informed of her selection in the

written test and was asked to appear before the Doctoral

Committee on 8th September, 2012;

(v) that the Doctoral Committee asked the petitioner to submit the

revised synopsis with some minor amendments and which was

also submitted by the petitioner;

(vi) that in the list of 13 candidates selected declared by the

respondent no.1 University on its website on 1st October, 2012,

the name of the petitioner did not find mention and on making

enquiries the petitioner was told on 3rd October, 2012 that the

Doctoral Committee had already selected 11 candidates during

interviews held on 8th and 9th September, 2012 and subsequently

two more candidates had been selected;

(vii) that the respondent no.1 University on 12th October, 2012

uploaded a new version of the list of selected candidates with

addition of Ms. Deepika Prakash;

(viii) that it is quite evident that Ms. Deepika Prakash‟s name was not

among the seven candidates required to submit their revised Ph.D.

synopsis by the Doctoral Committee;

(ix) that on making further enquiries, the petitioner was told that

owing to a inadvertent mistake, the name of Ms. Deepika Prakash

was left out in the list of selected candidates declared on 1st

October, 2012;

(x) that two of the selected candidates viz. Sh. Ram Kumar and Ms.

Nivedita Ghosh had secured 44 and 43 marks respectively in the

written exam and which were far below the requisite minimum

50% marks needed to qualify for interview;

(xi) that Ms. Dikshan Munjal and Mr. J.S. Dahiya whose names were

also included in the list of selected candidates were faculty

members of the respondent no.1 University and their admission is

also in violation of Ph.D. regulations;

(xii) that since the Doctoral Committee had not awarded marks for

synopsis and viva voce, ranking of the candidates for taking

decision for admission could not be done in an objective, prudent

and transparent manner.

2. Notice of the petition was issued and a counter affidavit filed by the

respondent no.1 University pleading:

(a) that the Doctoral Committee seeks to understand the research

proposal, evaluates research aptitude of the candidate and the

ability to undertake intensive and vigorous research on the

research proposal and on the basis thereof either recommends the

candidate for admission and if is of the opinion that research

proposal needs improvement, calls upon the candidate to submit a

revised proposal on the line suggested by it and after considering

the revised proposal decides whether the candidate is to be offered

admission or not;

(b) that the Doctoral Committee consists of senior professors and

experts in the field and the opinion of the said Committee is to be

given primacy as to whether the candidate is to be admitted to the

Ph.D. programme or not;

(c) that the petitioner had applied for admission to the Ph.D.

programme in the year 2011 and though qualified the entrance test

but was unable to successfully defend her research proposal

before the Doctoral Committee and therefore could not be

considered for admission;

(d) that the petitioner again applied in the year 2012 and again

qualified the entrance test and submitted a different research

proposal;

(e) that the Doctoral Committee in the meeting held on 8th and 9th

September, 2012 recommended admission of 12 candidates and

asked seven candidates to re-submit their proposal after revision;

(f) that the name of the petitioner figured in the list of candidates who

were asked to re-submit their research proposal;

(g) that the revised proposal submitted by the petitioner was also not

upto the mark; in fact the petitioner hardly carried out any revision

in her proposal and the revised proposal was a virtual

reproduction of the original proposal; accordingly, the Doctoral

Committee out of the seven candidates who were asked to re-

submit their proposal recommended only two candidates viz. Ms.

Manvi Tiku and Ms. Kimmi Singla for admission; and

(h) that the petitioner cannot derive any advantage of the inadvertent

error while uploading the list of candidates on the website who

were granted admission.

3. Vide order dated 11th February, 2014, the candidates who according to

the petitioner had been illegally admitted were ordered to be impleaded as

respondents to this petition and three candidates were so impleaded and notice

issued to them and replies / counter affidavit have been filed by Ms. Deepika

Prakash and Ms. Nivendita Ghosh.

4. The counsels were heard on 10th July, 2015 and 19th August, 2015 and

judgment reserved.

5. The counsel for the petitioner argued i) that though as per the prospectus

the number of seats for Ph.D. were to depend on availability of suitable

candidates but not to exceed 10 students in an academic year but 14 candidates

were admitted; ii) that no objections were raised to the revised synopsis

submitted by the petitioner; iii) that the respondent no.1 University in reply to

the letter of the petitioner had disclosed that Ms. Deepika Prakash was selected

by the Doctoral Committee on 22nd September, 2012 but there was no meeting

of the Doctoral Committee on that date; iv) that the Doctoral Committee

constituted a Sub-Committee to go through the revised synopsis and which was

also not permissible under the rules of admission approved by the Academic

Council; v) that the marks obtained by each candidates before the Doctoral

Committee were not disclosed; vi) that the respondent no.1 University has not

disclosed the Ph.D. Regulations applicable at the relevant time and the

Regulations relied upon in response to the letter of the petitioner are of 18th

September, 2012 i.e. of subsequent time; and, vii) that the entire admission

process was biased and prejudiced.

6. Per contra, the senior counsel for the respondent no.1 University

contended that a) the petitioner in the petition has not raised any ground of the

respondent no.1 University having admitted candidates in excess of the number

prescribed to be admitted; b) that only 12 candidates have been ultimately

admitted; c) that the cut off percentage for the entrance test was not 50% but

40% for general category students and 30% per Scheduled Caste and

Scheduled Tribe category students - attention in this regard was invited to the

document dated 30th August, 2011; d) that no case of bias or prejudice to the

petitioner has been established least made out.

7. The counsel for the respondent no.3 Ms. Nivedita Ghosh contended i)

that no marks were prescribed in the prospectus or in the Ph.D. Regulations for

qualifying the entrance test - in the absence there of, the principle of 40%

followed in LLB was to be followed for admission to Ph.D. programme also;

ii) that the eligibility marks of 40% have been followed uniformally; iii) that

she has been pursuing the programme for three years and now admission could

not be cancelled. Reliance in this regard was placed on Javed Akhtar Vs.

Jamia Hamdard MANU/DE/4078/2006; and, iv) that no case of irregularity in

admission is made out.

8. The counsel for respondent No.4 Ms. Deepika Prakash argued a) that her

name was not in the list of seven candidates who were directed to re-submit

their research proposal - in fact she had been recommended for admission but

her name remained to be included in the list of said candidates; b) that she had

secured 56% marks in the admission test i.e. more than the petitioner; c) that

she was issued the letter of admission along with other candidates; d) that there

was no sanctity to the number of seats in the Ph.D. programme and the

petitioner if had been found fit could have also been called for admission; e) it

is not the case of the petitioner that if Ms. Deepika Prakash and Ms. Nivedita

Ghosh are not admitted she would have been admitted; f) that even if the

admission of Ms. Deepika Prakash and Ms. Nivedita Ghosh were to be

cancelled, the same would still not entitle the petitioner to admission; g)

reliance was placed on A. Sudha Vs. University of Mysore (1987) 4 SCC 537

and Aman Deep Jaswal Vs. State of Punjab (2006) 9 SCC 597 to contend that

only admission of that student can be cancelled by substituting whom the

petitioner can be granted relief.

9. The counsel for the petitioner in rejoinder contended i) that as per UGC

Rules, the number of seats have to be decided well in advance; ii) that in the

advertisement published inviting applications, it was clearly stated that there

were 10 seats only; and, iii) that the arbitrariness is evident from the marks of

the interview being not disclosed or for the research papers the Regulations on

which reliance is now being placed are not available on the website.

10. I have considered the controversy. The petition is with respect to

admissions of the year 2012. Three academic years had passed by the time

arguments in the petition were heard. I had in the circumstances enquired from

the counsel for the petitioner at the outset only whether not the petition has

become infructuous and why should this Court proceed to hear and adjudicate

the same. However it was the contention of the counsel for the petitioner that

the petitioner, if succeeds, can be granted admission even now. Though I was

then and even now am of the opinion that the petitioner cannot in the academic

year 2016 get admission on the basis of the competition, in which she

participated, of the year 2012 in accordance with the dicta of this Court in

Shivam Shresthi Vs. Delhi Technological University MANU/DE/1757/2014

and since reiterated by the Supreme Court in Aneesh D. Lawande Vs. The

State of Goa (2014) 1 SCC 554 but since the matter had remained pending and

the petition had not been dismissed at the threshold and had remained pending,

it is deemed appropriate to adjudicate the same on merits also.

11. The senior counsel for the respondent no.1 University in response to the

query as to how, when the prospectus clearly provided that not more than 10

students shall be admitted in the Ph.D. programme in an academic year, could

more be admitted, merely stated that the nature of the programme is such

where if more candidates are found eligible, can be accommodated. I however

find it difficult to accept. If that were to be so, the respondent no.1 University

ought not to have in the prospectus provided that in no case more than 10

candidates will be admitted in an academic year. It is settled principle of law

that rules of a game cannot be changed after it has begun. If it were to be held

that notwithstanding a provision to that effect, the respondent no.1 University

is entitled to admit students in excess or students below that number, even if

otherwise found eligible for admission, the same would vest arbitrariness and

discretion in the persons for the time being manning the process of admission

of the respondent no.1 University and which cannot be permitted. The counsel

for the petitioner during the hearing handed over copy of UGC (Minimum

Standards & Procedure for Award of M.Phil. / Ph.D. Degree) Regulations,

2009 inter alia requiring number of seats for Ph.D. to be decided well in

advance and notified and advertised. The respondent No.1 University appears

to be in violation thereof also.

12. The respondent no.1 University has also not been able to give any

satisfactory reply of the argument, of arbitrariness inherent in not prescribing

the qualifying marks in the written test to be held nor the basis on which the

Doctoral Committee is to assess and evaluate the candidates. No merit list also

appears to have been drawn by the Doctoral Committee. The said process also

cannot be sanctioned. According to the petitioner, the qualifying marks were

50%. The petitioner in this regard relies on the contemporaneous website

notification and which appears to be in consonance with the Regulations supra

of the year 2009. However, according to the private respondents it was

intended to be 40% and the respondent No.1 University relies on the decision

of 30th August, 2011 in this regard. However there is no explanation for the

website notification cited by the petitioner.

13. Similarly, in the absence of any laid down criteria for the assessment to

be made by the Doctoral Committee and prescribed and declared weightage for

the marks of the written test and the assessment by the Doctoral Committee,

the possibility of abuse of discretion cannot be ruled out. James Hart in his

„An Introduction to Administrative Law‟ observed "A test or examination, to

be competitive, must employ an objective standard of measure. Where the

standard of measure is wholly subjective to the examiners, it differs in no

respect from an uncontrolled opinion of the examiners and cannot be termed

competitive". Supreme Court, in Minor A. Peeriakaruppan Vs. State of

Tamil Nadu (1971) 1 SCC 38, finding that interview marks had not been

divided under various heads and not given on itemised basis but given in a

lump, held the same to be illegal.

14. I am therefore compelled to observe that all does not appear to be well

with the admission process of the respondent No.1 National Law University,

Delhi at least qua admission to Ph.D. programme, unless it has been rectified

since then; I was however not told so. I take this opportunity to remind the

respondent No.1 University that its reputation is as good as products it

produces and any dilution in competition at the stage of admission can be an

obstacle in the path to achieving academic greatness.

15. Though no relief can be granted to the petitioner but a direction is

accordingly issued to the respondent no.1 University to before commencing the

admissions to the Ph.D. programme in the year 2016 revisit the admission

criteria in terms of the observations herein above and to clearly advertise the

same so that the possibility of officials of the respondent No.1 University

manning the admission process granting admission to whomsoever they desire

can be ruled out and admissions are strictly as per declared criteria.

16. The petition is disposed of.

A copy of this order be sent to the respondent no.1 University.

RAJIV SAHAI ENDLAW, J.

APRIL 19, 2016 „gsr‟