Kevin Cc Wong vs University Of Delhi
2017 Latest Caselaw 6645 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment reserved on:02.11.2017
                    Judgment delivered on:22.11.2017

+       W.P.(C) 5960/2017 & C.M. Nos.24762/2017 & C.M. No.25079/2017

        KEVIN CC WONG

                                                                   ..... Petitioner

                           Through      Mr. Arun Monga, Ms. Divya Sharma,
                                        Ms. Mascellina Kalikotey and Mr.
                                        Suryajyoti Paul Singh, Advs.

                           versus

        UNIVERSITY OF DELHI

                                                                ..... Respondent

                           Through      Mr. Mohinder J.S. Rupal and Mr.
                                        Prang Newmai, Advs. for R-1.

                                        Ms. Maneesha Dhir, Mr.Abhishek
                                        Kumar, Ms.Sharmistha Ghose and Mr.
                                        Mahipal Singh, Advs for R-2.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The petitioner had applied for admission at the Delhi University in the

sports quota in the year 2017-2018. He is stated to be a sportsman;

proficient in the sports of badminton. In the trial held of the badminton

players (between 27.06.2017 to 06.07.2017), the petitioner had reached the

semi-final stage. The petitioner had been awarded 79 marks all inclusive

which included his past performance as also his current performance. For his

past performance, he was awarded 29 marks out of 40. For his current

performance, he was awarded 50 marks out of 60. The bone of contention is

qua the marking awarded to another candidate Arjun Sachdeva (now

impleaded as respondent No.2 pursuant to the amended writ petition filed by

the petitioner under the orders of the Court dated 28.07.2017 in LPA

No.507/2017).

2 Submission of the petitioner is that Arjun Sachdeva without

participating in the sport of badminton has been issued a certificate by the

School Game Federation of India declaring his position to be first. This is

not correct as respondent No.2 had never played the game; he was an extra

and although admittedly he was a part of the team yet he had not played the

actual game and his having been awarded a first position pursuant to which

he has secured 32 marks is wholly unjust. The petitioner on the other hand

who had reached the semi-final stage has been awarded only 29 marks.

3 The amended writ petition and the arguments addressed before this

Court are largely confined to this grievance of the petitioner i.e. award of 32

marks to respondent No.2 when he had not even participated in the game and

he having secure 32 Marks and given first ranking is an illegal and arbitrary

exercise by respondent No.1.

4 Pursuant to the amendment in the writ petition, respondent No.2 has

also put in appearance. A separate counter affidavit has been filed by

respondent No.2. Counter affidavit of respondent No.1 is already on record.

5 Record shows that on 17.07.2017, the contention of the petitioner had

been noted. His grievance that Arjun Sachdeva had been given 32 marks

whereas the petitioner had been awarded only 29 marks reflected the opaque

system of marking adopted by respondent No.1. No interim relief had been

granted to the petitioner in terms of the subsequent application filed by the

petitioner which was dealt with on 18.07.2017.

6 The petitioner had preferred an LPA No. 507/2017 against the orders

dated 17.07.2017 & 18.07.2017. His grievances were noted by the learned

Division Bench. His particular reference to the effect that Arjun Sachdeva

had not even participated in the game who had managed to secure 32 marks

for a certificate wherein he had been shows as a first position ranker was

illegal system of marking. Submissions and counter submissions of the

parties having noted, the appeal was disposed of inter-alia with the following

directions:-

"Considering the aforesaid, we dispose of the present appeal by permitting the appellant to amend the writ petition to make necessary averments in relation to the assessment of past performance of, inter alia, Arjun Sachdeva - and, if he considers appropriate, to implead the affected persons as party respondents. If any such amendment is made, the same should be brought on record by 31.07.2017 with advance copy to counsel for the respondent/ university so that the university may keep its reply ready when the matter is listed before the learned Single Judge on 03.08.2017.

So far as the order dated 18.07.2017 is concerned, counsel for the appellant does not press his appeal in that respect, and he states that he shall argue C.M. No. 25079/2011 which is listed on 03.08.2017 before the learned Single Judge.

The petition stands disposed of in the aforesaid terms.

Order dasti under the signatures of the Court Master."

7 Pursuant to the disposal of the LPA, the present writ petition was

amended. Since Arjun Sachdeva was not a party in the earlier petition, he

was permitted to be impleded as respondent No.2. The response of both the

respondents is on record. Para 4.7 of the amended writ petition has been

highlighted by the petitioner to substantiate and advanced the argument

noted supra. It is reiterated that no.2 never having participated in the game

and being only an extra in the team could not have been given first position

for a game that he did not play; 32 marks awarded to him is incorrect. On

the other hand, the petitioner having participated in the game had been given

only 29 marks. This is only with a means to push respondent No.2 to a

higher pedestal.

8 The specific reply in the counter affidavit of respondent No.2 qua the

stand of the petitioner in para 4.7 has also been perused. The answering

respondent No. 2 has admitted that it was a team effort but in this team

effort, since their team had secured the first position, respondent No.2 was

well entitled to the certificate which was granted to him. Additional

submission being that it is not this certificate which is under challenge before

this Court. This is an online certificate which has been submitted by

respondent No.2 to respondent No.1 which has been considered in his

favour. It cannot be examined by this Court at this stage.

9 Respondent No.1 has supported the stand of respondent No.2.

Submission of respondent No.1 is that the certificate issued to respondent

No.2 was a well deserving certificate and as per the rules and guidelines of

the School Games Federation, each member in the team would be entitled to

such a certificate if the team has secured a first position. This was an answer

to the specific query put by the Court to the respondents as this Court in the

first instance appreciated the argument of the petitioner that it is an

individual effort and an individual capability of the candidate which has to

be counted for the purpose of admission and it is not team effort which has to

be considered by the Delhi University for the purpose of admission in the

sports quota. It is informed by respondent No.2 to this Court that when the

team has secured a first position, the certificate of merit or 1st position will

be granted to each member of the team and each one would be entitled to get

a first position certificate which has thus been granted to respondent No.2.

10 Noting this stand of respondent No.1 which is in conformity with the

stand of respondent No.2 as also the additional fact that the certificate

(granted to respondent No.2) has not been challenged before this Court, the

LPA having been confined to the challenge by the petitioner only to the

manner in which respondent No.2 was able to secure this certificate and a

consequential 32 marks without a participation in the sport. The authenticity

of the genuineness of the certificate is not in dispute.

11 It has been informed to this Court that Annexure R-1 (certificate of

merit granted to respondent No.2 by the School Games Federation of India)

pursuant to which he had secured 32 marks is a certificate of merit issued to

respondent No.2 noting that he has been declared first in the sports of

badminton and his achievement as a team. It has been clarified by respondent

No.1 that each member of the team has got an identical certificate and had

the same issue arisen in the case of the petitioner, he would have also been

given such a benefit.

12 There is thus nothing wrong in the manner in which Annexure R-1 has

been issued and the benefit of which has accrued to respondent No.2.

13 At this stage, learned counsel for the petitioner points out that a

videography of the manner in which the marking had been carried out by the

respondent would reflect the bias attitude of the assessing team; although a

panel of three persons had to sit as an examination panel yet the videography

would show that it is only one person who is sitting at the examination panel.

This Court notes that this averment has not been pleaded either in the earlier

writ petition or in the amended writ petition. This submission has been set

up only in the rejoinder in the first instance and it was rightly pointed out by

the learned counsel for the respondents that this averment not having been

pleaded in the initial writ petition and nor in the subsequent petition, this

argument cannot be available to the petitioner. The LPA Court has disposed

of the petition giving permission to the petitioner to amend the writ petition

only qua the discrimination that the petitioner has alleged to have suffered

qua respondent No.2 who had then been directed to be impleded. This

Court, thus, cannot go into this aspect about the panel members. This was

never a part of the earlier writ petition or even of the amended writ petition.

This aspect has been urged only in the rejoinder.

14 Reliance by the learned counsel for the petitioner upon (2012) 7 SCC

389 Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others is

mis-placed in the factual scenario. There is no doubt to the settled legal

proposition that merit, fairness and transparency are the etho of the process

for admission to courses in a University; rule of merit cannot be given a

go-bye by inefficiency, inaccuracy or improper methods of admission.

Nothing contained in this judgment would come to the aid of this factual

scenario.

15 Reliance by the learned counsel for respondent No.2 on the judgment

of the Apex Court on AIR 1993 SC 1313 Sandeep Barar and Another Vs.

State of Punjab and Others as also (2012) 1 SCC 157 Sanchit Bansal and

Another Vs. Joint Admission Board and Others also comes to the aid of the

respondents. In Sandeep Barar (supra), the Apex Court has rightly noted

that it is the function of the Executive to lay down the process for

admission to categories for sportsmen or sportswomen and this is the

function of the State; although there is a power of judicial review available to

the Court but it is only if the validity of these instructions are in challenge;

this is not so in this case. Prayer (b) in the amended writ petition is outside

the scope of the amendment which had been permitted to the petitioner in

terms of the order passed by the Division Bench while disposing of the LPA

No.507/2017 on 28.07.2017. In the judgment of Sanchit Bansal (supra), the

Apex Court had reiterated the well settled legal proposition that an action is

said to be arbitrary and capricious where a person in authority basis his

decision on an individual discretion by ignoring the prescribed rules or

procedure or law or the decision is founded on prejudice or preference rather

than reason or fact. This Court notes that there is no preference which has

been given to respondent No.2 over and above the petitioner. No case of

discrimination is made out. Respondent No.2 has earned the certificate on his

own merit. The petitioner has been given 29 marks only for the reason that

he had participated in the event; admittedly he had not secured either a first,

second or a third position. This is also not his case. In fact this petition is

largely premised on the alleged extra marks awarded to respondent No.2; the

petitioner does not appear to have any grievance qua himself. He has not

challenged the fact that he was himself entitled to better marks than 29 for

his past performance; he not having secured either first, second or third

position could obviously not have got better marks.

16 The prayers made in the writ petition cannot be answered in favour of

the petitioner. Dismissed.

INDERMEET KAUR, J

NOVEMBER 22, 2017 A