Delhi High Court
Somya Gupta & Ors vs Guru Gobind Singh Indraprastha ... on 7 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on 15th December, 2018
Pronounced on: 7th January, 2019
+ W.P.(C) 12097/2018, W.P.(C) 12958/2018, W.P.(C) 12968/2018,
W.P.(C) 13196/2018, W.P.(C) 12801/2018, W.P.(C) 12811/2018,
W.P.(C) 12812/2018, W.P.(C) 12712/2018, W.P.(C) 12755/2018,
W.P.(C) 12757/2018, W.P.(C) 12797/2018, W.P.(C) 12798/2018,
W.P.(C) 12799/2018, W.P.(C) 12802/2018, W.P.(C) 12809/2018,
W.P.(C) 12803/2018, W.P.(C) 12804/2018, W.P.(C) 12955/2018,
W.P.(C) 12093/2018, W.P.(C) 12094/2018, W.P.(C) 12095/2018,
W.P.(C) 12096/2018, W.P.(C) 12121/2018, W.P.(C) 12125/2018,
W.P.(C) 12128/2018, W.P.(C) 12131/2018, W.P.(C) 12132/2018,
W.P.(C) 12151/2018, W.P.(C) 12162/2018, W.P.(C) 12172/2018,
W.P.(C) 12173/2018, W.P.(C) 12177/2018, W.P.(C) 12186/2018,
W.P.(C) 12196/2018, W.P.(C) 12199/2018, W.P.(C) 12216/2018,
W.P.(C) 12218/2018, W.P.(C) 12220/2018, W.P.(C) 12223/2018,
W.P.(C) 12285/2018, W.P.(C) 12374/2018, W.P.(C) 12425/2018,
W.P.(C) 12435/2018, W.P.(C) 12437/2018, W.P.(C) 12439/2018,
W.P.(C) 12442/2018 W.P.(C) 12445/2018, W.P.(C) 12448/2018,
W.P.(C) 12449/2018, W.P.(C) 12451/2018, W.P.(C) 12453/2018,
W.P.(C) 12461/2018, W.P.(C) 12469/2018, W.P.(C) 12577/2018,
W.P.(C) 12638/2018, W.P.(C) 12639/2018, W.P.(C) 12701/2018,
W.P.(C) 12704/2018, W.P.(C) 12705/2018, W.P.(C) 12706/2018,
W.P.(C) 12770/2018, W.P.(C) 12699/2018, W.P.(C) 12871/2018
SOMYA GUPTA & ORS
VAIBHAV ARORA
W.P.(C) 12097/2018 & connected matters Page 1 of 45
JAIMEET BEDI
ABDULLAH KHAN
LAKSHAY TALWAR
KRITIK MALIK
UTSAV SINGHAL AND ANR.
MS. DIKSHA RUSTAGI
YASH SHARMA
AMAN KUMAR JHA
TANISHQ JINDAL
RAHUL YADAV
AMAN SONI
HARSHIT AGGARWAL
RAHUL AGGARWAL AND ORS.
RISHABH GROVER AND ORS.
REENA PANDEY AND ORS.
PRASHI
HARSHITA SAREEN & ORS
VEDIKA GOEL & ORS
BHASKAR KHANIJO & ORS
CHAITANYA BHARDWAJ & ORS
MR. RAHUL GARG
NITYA GUPTA
VIBHOR SEEFDHAR
MR. SHIVAM BHARDWAJ
MR. VARUN GOYAL
MR. HARSH AGGARWAL
ASTEETVA SEEKRI & ORS
W.P.(C) 12097/2018 & connected matters Page 2 of 45
MISS JAISMEEN AGGARWAL
MR. AYUSH GARG
MR. ANMOL SAWHNEY
VIKALP GUPTA
MISS DAMINI CHILANA
MR. KARTIK AGARWAL
VARTESH KUMAR
SHEFIN MATHEW
MR. ABHISHEK
NEHA GUPTA
MUSKAN NAGPAL & ORS
AMAN GARG & ORS
ABHINAV MALHOTRA
AYUSH CHHETRI AND ORS.
VAIBHAV MISHRA
TANVIR SINGH
RAHUL PUJANI
SIDDHARNT TANDON
PRANJUL BANSAL
ANKUSH CHABRA AND ANR.
AAROHI KHANNA
PRACHI SHARMA AND ANR.
SHIVAM SHARMA AND ORS.
ARUN KUMAR
PARTH VIBHU
SHIPRA MAKKAR
BAHAVESH RANA
W.P.(C) 12097/2018 & connected matters Page 3 of 45
AKSHAT AGGARWAL
MR. INTIKHAB AND ORS.
MR. ROHAN SHARMA AND ORS.
HARSHIT GARG & ORS
ABHIT GOEL
BHUMIKA SEHRAWAT
YASH VARDHAN VASHISHT ..... Petitioners
Through: Mr. Sanjay Sharawat, Adv. with
Mr. Divyank Rana and Mr. Ashok Kumar,
Advs. for petitioner in item nos, 3,5,7, 12,
13, 15 to 17, 22, 36,43, 52, 53, and 65
Mr. Ashok Agarwal, Adv. with Mr. Kumar
Utkarsh, Adv. for petitioners in item no. 21,
24,26,28,29, 33,35,36,39,40 and 58
Mr. Prathana Singh and Mr. Rakesh
Wadhwa, Adv. for petitioner in item no. 5
Mr. Jainendra Maldahiyar, Adv. for
petitioner in Item no.6
Mr. S. Sarin, Adv. for petitioner in item no.
86
Ms. Shimpy Arman Sharma, Adv. for
petitioner in item no.65
Mr. Kuldeep Balhara, Adv. for petitioner in
item no. 23, 67
Mr. R.K.Saini, Adv. with Mr. Vipin Malik,
Adv. for petitioners in item no. 9, 27, 34, 37,
43 to 50 and 55, 66, 68, 71
Mr. Nimish Chib, Adv. for petitioner in item
no. 75
Mr. Sushil Kumar Pandey and Ms. Neha
Sharma, Advs. for petitioner in item no. 26
Mr. Rakesh Munjal, Sr. Adv. with Mr.
Rakesh Kumar, Mukesh Gupta and Dr. Y.
Munjal, Adv. for petitioners in item nos. 28
to 32
W.P.(C) 12097/2018 & connected matters Page 4 of 45
Mr. Mukesh Gupta, Adv. with Mr. Abhinav
Agnihotri and Mr. Vipin Malik Advs. for
petitioners in item nos. 22, 23, 47, 38, 28,
60, 63 and 69
Mr.M.K.Sharma, Mr. Rajesh and Mr. Anand
Pandey, Advs. for petitioner in item no.51
Mr. Sunil Dalal, Adv. for petitioner no. 34
Mr.Ashok Gurnani, Adv. for petitioner in
item no. 6
versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY AND ANR. ..... Respondents
Through: Ms. Maninder Acharya, ASG and
Mr. Mukul Talwar, Sr. Adv. with Ms. Ekta
Sikri, Mr. Jasbir Bidhuri, Mr. Arun Sanwal
and Ms. Ritu, Adv. for GGSIPU
Ms. Beenashaw N. Soni, Adv. for
Respondent no.1 in item no. 6
Mr. jamal Akhtar, Adv. for R-3 in item no.
26
Mr. K.P.S. Rao, Adv.for R-2 in item no. 75
Mr. Sudhir Nandrajog, Sr. Adv. with Mr.
Anirudh Sharma and Ms. Shriya Handa,
Advs. for R-2 in item no.32
Mr. Amitesh Kumar and Ms. Binisa
Mohanty, Adv. for R-3 in item no. 50
Mr. Jawahar Raja, ASC for GNCTD with
Ms. Kritika Padode, Adv. for R-2 in item
no.50
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
W.P.(C) 12097/2018 & connected matters Page 5 of 45
% JUDGMENT
1. These writ petitions involve cognate and similar issues and are,
therefore, being taken up for consideration and decision vide this
common judgment.
2. For ease of reference, the judgment would refer to the facts
obtaining in W.P. (C) 12097/2018 (Somya Gupta v. GGSIPU), which
was taken up as the lead case in this batch. It may be noted that
common arguments were advanced, on behalf of the Respondent-
University, in all these writ petitions.
Facts
3. The eight petitioners in W.P. (C) 12097/2018 have all
completed the first two semesters of their undergraduate education,
constituting the first year thereof, from various universities. A tabular
representation, thereof, may be presented as under:
Petitioner Name University
No.
1 Somya Gupta Amity University, Uttar
Pradesh
2 Honey Vats Jagan Nath University,
Bahadurgarh
3 Harsh Kishore A P Goyal Shimla
University
4 Om Sudhir Amity University, Uttar
Vidyarthi Pradesh
5 Gautam Krishnan A P Goyal Shimla
University
6 Akhil Goyal Manav Rachna University
7 Dev Chahal Jagan Nath University,
Bahadurgarh
8 Sankalp Mishra Jagan Nath University,
Bahadurgarh
4. It would thus be seen that the "parent" Universities, where the
petitioners had completed their first and second semesters, constituted
an eclectic mix.
5. The Respondent No 1-University (hereinafter referred to as "the
GGSIPU") was created, and is governed by the Guru Gobind Singh
Indraprastha University Act, 1998 (hereinafter referred to as "the
GGSIPU Act"). In exercise of the powers conferred by Section 27 of
the said Act, the Board of Management of the GGSIPU revised
Ordinance 7, which related to migration of students, in 2015. Clause
1.0 of the said Ordinance reads thus:
"Ordinance 7
1.0 No migration shall be allowed from other
Universities/Colleges to the University Schools of
Studies, University maintained colleges or affiliated
institutions i.e. no inter-university migration shall
be allowed in normal circumstances. It can be
allowed in the beginning of second tier/Semester
only under special circumstances by the Vice-
Chancellor, on the recommendations of the sub-
committee, comprising of three members of
Academic Council, constituted by the Vice-
Chancellor subject to the condition that the
applicant student/candidate must have cleared each
paper of both the semesters of first year/ or all
papers of the first year as it applies for a particular
programme. It must be ensured that there should
not be any gap between the 1st year and the 2nd year
of a particular programme meaning thereby that the
pursuance of the programme remains continuous."
6. Under the afore-extracted Clause 1.0 of Ordinance 7, the
GGSIPU issued the following Notice, on 9th August, 2018, inviting
applications from students who wished to migrate:
"No IPU-7/Acad/Migration-2018/2018-19/4712
Dated: 09/08/18
NOTICE
Subject: Migration (Change of shift, Mutual
Migration, Intra University, Inter University) of the
students admitted in 1st Semester in the Academic
Session 2017-18
In pursuance of Provisions in Ordinance 7
(Migration of Students) GGSIPU Act, No 9 of 1998,
Candidates seeking Migration (Change of Shift, Mutual
Migration, Intra-University, Inter-University) in various
programmes in Guru Gobind Singh Indraprastha
University are required to submit the following:
1. Migration Application
2. No Objection Certificate (NOCs) from both
the Institutes
3. Copy of result of first year (both semesters)
4. Copy of Result of Class 12th qualifying
examination documents as per the eligibility
criteria.
The above documents may be submitted
between 09th August 2018 to 17th August 2018 (11
AM to 3 PM) only on University working days in,
Admission Branch, Administrative Block, GGSIPU
Dwarka.
Candidates desirous of seeking Migration
should also fulfill the Eligibility Criteria for the
programme applying for migration as laid down in
the Admission Brochure for the Academic Session
2017-18.
As per Amended provision of Migration
Ordinance 7: No migration is permitted into the
Medical Colleges of the Guru Gobind Singh
Indraprastha University from any
Institution/College.
Issuance of No Objection Certificate (NOCs)
from the Institute does not imply cancellation of
Admission from the particular college, it only
means consent for migration given by the
College. Submission of Migration application
does not imply that the migration will be carried
out.
Migration will be effective from third
semester for the Academic Session 2018-19.
Enclosed: - Copy of Ordinance 7, GGSIPU Act 09
of 1998
Sd/-
(Pravin Chandra)
Incharge, Admissions"
7. Vide subsequent Notice dated 19th August, 2018, the last date,
for submission of applications by students seeking migration to
colleges under the GGSIPU, was extended till 21st August, 2018. The
petitioners admittedly submitted their respective applications, seeking
migration, from the Universities in which they were studying
heretofore, and under which they had completed their first and second
semesters, to the GGSIPU, before the prescribed cut-off date of 21st
August 2018. All requisite details and documents were submitted with
the applications, including the NOCs from their earlier Universities
and from the Institute, i.e. the college affiliated to the GGSIPU, to
which they desired to migrate.
8. Though the Admission Brochure of the GGSIPU, for the
Academic Session 2017-18 has not been made available by any of the
parties, it is not in controversy that the petitioners, in the present case,
qualified the eligibility criteria for migration, which was passing of the
12th standard examination and obtaining minimum qualifying marks
therein.
9. The colleges, affiliated to the GGSIPU, to which the petitioners
desire to migrate - in the case of the petitioners in W.P. (C)
12097/2018, the Vivekananda Institute of Professional Studies
(hereinafter referred to as "the VIPS") - allowed the petitioners,
consequent to the submission of their applications for migration, to
join and attend the third semester classes under them, awaiting the
decision of the GGSIPU on the petitioner's applications for migration.
The College states that this was permitted in order to enable the
concerned applicants to attend the number of classes required, to
entitle them to appear in the third semester examinations.
10. Consequent to being permitted to join and attend classes, by the
College, the petitioners severed their relationship with their "parent"
Universities/Colleges, by having their names removed from the rolls
thereof.
11. There was, admittedly, no communication, from the GGSIPU
to any of the petitioners, regarding their applications for migration, till
the issuance of the impugned communication, from the GGSIPU to
the College, vide e-mail dated 2nd November, 2018 which was, in turn,
forwarded by the College to the individual students on 3 rd November,
2018. The communication reads thus:
"Sir/Madam,
This is in reference to applications so received from
various candidates applied for migration in GGSIP
University as per the notified notice for applying for the
same till 21/8/2018. This is to inform you that the request
of the following student/students was placed before the
duly constituted Committee as per Ordinance 7. The
Committee after due deliberation did not recommend the
following cases as enumerated below. The
recommendation of the Committee was approved by
Competent Authority of the University.
Sl. No. Name of the Name of the parent Name of Result of
student institute the Institute Migration
where
candidate
wishes to
migrate
1 Sankalp Mishra Jagan Nath VIPS Not
University Recommended
Haryana
2 Akhil Goyal Manav Rachna VIPS Not
University Recommended
3 Harsh Kishore A P Goyal Shimla VIPS Not
University Recommended
4 Om Sudhir Amity University, VIPS Not
Vidyarthi Uttar Pradesh Recommended
5 Gautam A P Goyal Shimla VIPS Not
Krishnan University Recommended
6 Honey Vats Jagan Nath VIPS Not
University Recommended
Bahadurgarh
7 Somya Gupta Amity University, VIPS Not
Uttar Pradesh Recommended
8 Dev Chahal Jagannath VIPS Not
University, Recommended
Haryana
Regards
Admission Branch"
12. The result of the issuance of the above extracted impugned
communication, just 18 days short of the commencement of the third
semester examination conducted by the GGSIPU, was that the
petitioners, having attended the third semester classes under the
College/Colleges affiliated to the GGSIPU, with the consent of such
College/Colleges, found themselves in no man's land. Averring that,
on the basis of the assurance held out, by the College (affiliated to the
GGSIPU), by permitting them to attend the third semester classes,
they had severed their links with their parent Colleges/Universities,
and that the rejection of their applications for migration, at such a late
stage, by the GGSIPU, had left them floundering with nowhere to go,
the petitioners have approached this Court by means of the present
writ petitions. Needless to say, they seek quashing of the above
extracted communication, dated 2nd/3rd November, 2018, whereby
their applications for migration were rejected as "not recommended"
and also seek, consequently, a mandamus, to the GGSIPU, to accept
their requests for migration.
The Rival Pleadings and Submissions
13. Arguing for the petitioners, learned Senior Counsel Mr. Rakesh
Munjal submitted that the act, of the GGSIPU, in sitting on the
applications, of his clients, for migration, for nearly three months and,
practically on the eve of the third Semester Examination, rejecting the
applications by a completely unreasoned order, could never be
allowed to sustain the scrutiny of law. He pointed out that the
petitioners were admittedly fulfilling the eligibility criteria, for being
permitted migration to the GGSIPU and, having submitted their
applications for migration within the time specified, with all requisite
documents, the GGSIPU could not be permitted to reject the said
applications. Apropos Clause 1.0 of Ordinance 7, Mr. Munjal would
submit that the applicable statutory provisions, including the
provisions of the said Ordinance, did not define the "special
circumstances", which would entitle candidates to seek migration.
The decision of the GGSIPU to reject the petitioner's applications for
migration was, Mr. Munjal would further seek to submit, additionally
vitiated as, on the assurance impliedly held out by the College, which
was affiliated to the GGSIPU, by allowing them to attend the third
semester classes conducted by it, the petitioners had prejudicially
changed their position by severing their links with their parent
colleges/Universities to which, therefore, it was impossible for them
to return. The petitioners were, therefore, he would submit, entitled to
relief, even by application of the principles of equitable and
promissory estoppel.
14. The writ petition emphasises, in this context, the fact that the
concerned Colleges issued identity cards to the petitioners, marked
their attendance and also permitted them to appear in their internal
assessment examinations. Mr. Munjal further submitted that the
petitioners could not be expected to wait for a decision, on their
migration applications, from the GGSIPU, before joining classes, as,
in that event, they would not have the requisite attendance to permit
them to appear in the third semester examinations. The iniquity of the
act of the respondents was also emphasised, by pointing out that the
rejection of the petitioners request for migration would result in a loss,
to them, of two precious academic years. This, in a scenario in which
the petitioners were not at fault, and had effectively been led up the
garden path by the GGSIPU, by its inaction in failing to communicate
any decision, on the petitioner's applications, for nearly three months,
Mr. Munjal would submit, could never be tolerated in law.
15. Apropos the submission, of the GGSIPU, in its affidavits filed
in response to the writ petition, that it had, in fact, called for
additional details from the applicants who were seeking migration,
Mr. Munjal points out that the said details were called, not by way of
communications to the concerned candidates, but by way of an
omnibus communication to the College in which the petitioners were
studying (i.e., in the case of the petitioners in W.P. (C) 12097/2018,
the VIPS), on 17th October, 2018, just 6 days prior to the meeting of
the sub-Committee on 23rd October, 2018. There is no explanation,
Mr. Munjal points out, for the inordinate delay, on the part of the
GGSIPU, in responding to the petitioner's applications. Mr. Munjal
also submits that, the Ordinance being silent regarding the "special
circumstances", which would entitle a candidate to migration, the sub-
Committee was not empowered to carve out, on its own, such "special
circumstances", no such power being conferred, on it by the
Ordinance. By carving out such "special circumstances" (in its
meeting dated 23rd October, 2018), Mr. Munjal would submit that the
sub-Committee effectively amended the Ordinance, which it was not
empowered to do. That apart, the said "special circumstances"
amounted to a change in the existing policy, which could never be
applied retrospectively, to applications submitted prior thereto, for
which purpose reliance is placed on the judgment of a learned Single
Judge of this Court in Siddharth Tomar v. GGSIPU, (2010) 172 DLT
82.
16. Mr. Munjal also points out that a perusal of the manner in
which applications were accepted, and rejected, by the sub-
Committee, reveals that the sub-Committee acted with patent
arbitrariness, inasmuch as, in respect of applications, by applicants,
citing identical reasons for seeking migration, some were accepted by
the sub-Committee, while others were rejected.
17. Mr. Munjal also presses, into service, the principle of legitimate
expectation, submitting that, with the lapse of nearly three months
after submitting of their applications for migration, his clients
legitimately expected that their applications had been/would be
allowed and that they would be permitted to continue their studies
under the aegis of the GGSIPU.
18. Mr. Munjal also points out that the impugned order is
completely unreasoned and could not, even on that ground, be
sustained.
19. Reliance was also placed, by Mr. Munjal, on the judgment of
this Court in Radhika Garg v. Delhi University, 2005 (119) DLT 225.
Reliance is also placed on the judgment of the Supreme Court in
Nitasha Paul v. Maharishi Dayanand University (1996) 2 SCC 103,
for the proposition that, even though migration is not a matter of right,
the University cannot decide questions of migration arbitrarily and
according to the whims of its Vice-Chancellor or Principal.
20. Effectively supporting the cause of the students, Mr. Sudhir
Nandrajog, appearing for the Respondent No 2-College, submits that,
as the petitioners had submitted all requisite documents and details
prior to the cut-off date of 23rd August, 2018, and as they admittedly
fulfilled the eligibility criteria for migration to the GGSIPU, the
decision, of the GGSIPU, to reject their applications for migration
was, ex facie, arbitrary. He submits that there was a signal departure,
in the present academic year (2018-2019) from the situation that had
obtained, and the practice that was followed, in other earlier academic
years. Mr. Nandrajog emphasises that the GGSIPU had never, earlier,
sought information regarding any "special circumstance", before
approving applications, submitted by students, for migration and that,
had the GGSIPU informed the College that, this year, the procedure
and practice was going to be departed from, his College would also
have required, from the students, specific reasons for migration,
before allowing them to attend classes. He submits that the "special
circumstances", as carved out by the sub- committee in its Meeting,
dated 23rd October, 2018, on the basis whereof, apparently, candidates
had been sifted out, were being framed for the first time, and
submitted that, now that they had been framed, his client would also
ensure that, in future years, only students, whose cases fell thereunder,
were granted admission, and permission, to attend classes. Mr.
Nandrajog submits that, however, applying the said decision to throw
out students, in the present academic session, after they had nearly
completed their third semester, and were at the threshold of writing
the examinations, was illegal and intolerable. He additionally submits
that the decision to allow the petitioner to attend classes was also
influenced by the requirement of minimum attendance, in order to
enable them to appear in the third semester examinations.
21. Drawing attention to the aspect of unconscionable delay, in the
present instance, on the part of the GGSIPU, in taking a decision on
the petitioner's applications for migration, Mr. Nandrajog submits
that, in all earlier years, the decision on the applications for migration
was taken in August/September and that it was for the first time, in
the academic session 2018-2019, that the decision was delayed by
almost three months, and the applications were rejected only in
November, 2018. He also submits that this delay was despite the fact
that his client had diligently followed up the matter with the GGSIPU.
In connection therewith, Mr. Nandrajog would also submit that the
fact that the requirement for special reasons was communicated, by
the GGSIPU to his client, indicated that the GGSIPU was well aware
of the fact that the petitioners were attending classes in his client's
College. In such circumstances, Mr. Nandrajog echoes the submission
of Mr. Munjal that the petitioners would also be entitled to relief by
application of the principles of equitable and promissory estoppel, for
which purpose he relies on the well-known judgment of the Supreme
Court in U.O.I. v. Godfrey Phillips India Ltd, (1985) 4 SCC 369. In
fine, Mr. Nandrajog would emphasise that the impugned order, were
it to be sustained, would result in the loss of two precious academic
years of the petitioners, who were innocent in the entire affair.
22. The petitioners' claims were vehemently opposed by Ms
Maninder Acharya, learned Additional Solicitor General (ASG) and
Mr. Mukul Talwar, learned Senior Counsel, appearing for the
GGSIPU. It is emphasised, by said learned Senior Counsel, that the
law does not recognise any vested right to migration, and that the
Notice, dated 9th August, 2018 (supra), whereby applications for
migration were invited, itself clarified clearly that grant of NOCs by
both the Institutes, i.e. by the "parent" College/University and the
College to which the students were seeking migration, would not
amount, ipso facto, to a guarantee that the student's claim to
migration would necessarily be allowed. The Ordinance, it was
pointed out, was also clear that, ordinarily, inter-University
migrations, to the GGSIPU, would not be allowed, and that such
claims would be allowed only in "special circumstances". It is
emphasised that there was no requirement, in law, for such special
circumstances to be delineated in the Ordinance itself and that the
decision to confer discretion, on the sub- Committee of the Academic
Council, which consisted of three eminent academicians, to
objectively decide the merits of the individual applications and, for
the said purpose, take a decision on the circumstances which ought to
be treated as "special", could not be said to suffer from arbitrariness
in any manner. Learned ASG was emphatic in contending that, in
such matters, some play in the joints necessarily had to be allowed
and that, so long as the decision taken did not suffer from the vice of
arbitrariness or perversity, no case for interference, by a writ court,
could be said to exist. Learned Senior Counsel further emphasised
that the petitioners did not, in their applications seeking migration,
cite any reason, far less any "special circumstance", as would entitle
them to such claim.
23. Responding to the submission that it was necessary to permit
the petitioners to attend classes, in order to enable them to have, to
their credit, the requisite attendance, for being allowed to write the
third semester examinations, learned Senior Counsel submitted that it
was precisely for this reason that the sub-Committee, in its meeting
dated 23rd October, 2018, recommended that additional classes be
held for the students whose applications for migration were approved.
They sought to submit, further, that the illegal act, of the Respondent
No 2-College in permitting the petitioners to attend third semester
classes conducted by it, could not confer any equities on the petitioner
and that action was being taken against the College in that regard.
Learned Senior Counsel also sought to fault the petitioners for having
attended the said classes, contending that, if they did so, in the face of
the disclaimer, expressly contained on the notice, dated 9th August,
2018 (supra), inviting applications for migration, to the effect that
acceptance of applications and grant of NOC by the "parent"
University and the college to which they desire to migrate, conferred
no guarantee of migration, they did so at their own peril. Rather,
learned Senior Counsel would seek to urge, many of the petitioners
actually scored ranks and marks much below the cut off, as would
entitle them to admission to the College in normal course, and were
using the facility of migration as a route to secure "backdoor entry"
into the college.
24. To a query, from the Bench, as to the extent to which the
GGSIPU could be treated as bound by the decision, of the College,
affiliated to it, to allow the petitioners to attend classes, Mr. Mukul
Talwar, learned Senior Counsel submitted that the Colleges affiliated
to the GGSIPU were not its "constituent colleges", unlike, for
example, colleges affiliated to the Delhi University. The control, of
the GGSIPU, over colleges affiliated to it, he would submit, was
minimal, and guided by the principles contained in the classic
judgment of the Supreme Court in T. M. A. Pai Foundation v. State
of Karnataka, (2002) 8 SCC 481.
25. The learned ASG also sought to submit that, in the present case,
the "migratory" attempts of the petitioner's did not appear to be
wholly bona fide. She pointed out that, in 21 cases, NOC had been
taken, from the "parent" College/University even before the issuance
of the Notice, dated 9th August, 2018. She also pointed out that, in the
case of the A.P. Goyal Shimla University, it was found that several
NOCs had been granted on the same date, i.e. 22 nd June, 2018. It was
not possible, therefore, in her submission, for students, coming from
the said University, to claim a right to be migrated to the GGSIPU. (It
may be noted, here itself, that, in response to this submission, Mr.
Munjal points out that the GGSIPU had, in fact, allowed the
applications of other students, who had sought migration from the
said A.P. Goyal Shimla University.)
26. Finally, learned ASG would seek to submit, the Court could not
be privy to a decision which would dilute the standards of education
prevalent in the GGSIPU, of which it was rightly proud. Non-
meritorious students, if allowed to seek admission to Colleges
functioning under the aegis of the GGSIPU, would inevitably result in
lowering of the standards of the University, which could not be
allowed at any cost. Learned ASG conceded that, possibly, the
GGSIPU could have acted with greater promptitude in dealing with
the applications, submitted by the students, for migration, but
submitted that the students, too, had not moved any judicial forum,
seeking expeditious decision on their applications and that, therefore,
any delay that might have been occasioned in that regard could not
clothe the students with any right in their favour.
27. Learned Senior Counsel appearing for the GGSIPU have also
emphatically contended that the reliance, by the petitioners, on the
principles of promissory estoppel and equitable estoppel is unmerited,
as there can be no estoppel against the statute. It is also sought to be
emphasised that the scope of interference, by courts, in matters
relating to education, is heavily circumscribed, and must be limited to
rare and exceptional cases.
28. The GGSIPU has further sought to contend, in a "second
additional affidavit" filed by it on 15th December, 2018 that, in respect
of 141 applicants who had applied for migration, reports regarding
verifications of the NOCs/mark sheets, submitted by them, were as
yet not forthcoming from their "parent" Universities/colleges.
Learned ASG submits that no relief could, quite obviously, be granted
to such students.
29. Reliance was placed, by learned Senior Counsel appearing for
the GGSIPU, on the following decisions:
(i) Aman Ichhpuniani v. Vice-Chancellor, Delhi
University, 71 (1998) DLT 202 (DB)
(ii) Jatin Behl v. University of Delhi, 2002 SCC Online Del
726,
(iii) Apurva v. University of Delhi, ILR (2012) III Del 67,
(iv) Apurva v. University of Delhi, (2012) 189 DLT 178
(DB),
(v) Shashank Shandilya v. GGSIPU, 2013 SCC Online Del
3170,
(vi) Antriksh Anand v. GGSIPU, 2013 SCC Online Del
3905,
(vii) Sudhanshu Giri v. Vice-Chancellor, 2017 SCC Online
Del 7452,
(viii) Simran Singhal v. Vice-Chancellor, Indraprastha
University, 2017 SCC Online Del 6409,
(ix) Ravi Singhal v. GGSIPU, 2017 SCC Online Del 10499,
(x) Vaibhav Bhansali v. University of Delhi, 2015 SCC
Online Del 10412 and
(xi) All India Council for Technical Education v. Surinder
Kumar Dhawan, (2009) 11 SCC 726.
30. Pursuant to a request by the Court, the GGSIPU has also
provided a copy of Guru Gobind Singh Indraprastha University
Statute 24, made by the Board of Management of the GGSIPU in
exercise of the powers conferred by Section 26 (2) of the GGSIPU
Act, which governs the conditions under which affiliation is granted
to colleges and institutes by the GGSIPU.
Analysis and Findings
31. The petitioners before this Court are students who, in response
to the Notice, dated 9th August, 2018, applied for migration to
colleges affiliated to the GGSIPU. That they were eligible for such
migration, and that the forms submitted by them were in order, and
was submitted before the last date stipulated therefor, are not in
dispute. Neither is it in dispute that the Respondent No 2-College,
which is affiliated to the GGSIPU, consciously allowed the petitioners
to attend the third semester classes conducted by it. The petitioners'
links with their "parent" colleges/Universities stand admittedly
severed and, were the impugned decision, of the GGSIPU, to reject
their applications for migration, to be upheld, it is an admitted
position that the petitioners would suffer a loss of two academic years.
If, however, the rigour of the law so requires, the petitioners would,
undoubtedly, have to suffer such loss. The question before this Court
is - does the law so require?
32. It is important to bear, in mind, the fact that the present case is
not one in which any student/students has sought to take undue
advantage of the law, or have resorted to fraudulent means in order to
secure admission/migration. (It may be noted, in this connection, that
somewhat serious allegations were raised, by the learned ASG,
regarding Petitioner No. 5 in W.P. (C) 12097/2018, Gautam Krishnan,
whereupon Mr. Munjal submitted that the said petitioner was no
longer pressing his case.) This fact, coupled with the legal reality that
the right to education is a fundamental right, has necessarily to kept in
view, by the court, while examining a case such as the present.
33. I deem it appropriate, at this juncture in this context, to deal
with the submissions, of the learned ASG, whereby the bona fides of
some of the students has been sought to be questioned. The fact that
(i) in 21 cases, NOCs were obtained, from the parent
Universities/colleges even before the issuance of Notice, dated 9 th
August, 2018, by the GGSIPU and (ii) certain colleges were doling
out NOCs wholesale, the A.P.Goyal Shimla University being one of
the prime culprits, having issued NOCs to all students seeking to
migrate to the GGSIPU on the same date, i.e. 22 nd June, 2018,
according to her, indicated that the requests for migration, in such
cases, appeared, prima facie, to be orchestrated, rather than bona fide.
As these aspects would require further investigation and inquiry,
learned ASG exhorts this Court to hold its hands at this stage. The
Court is unable to agree. Nothing unnaturally out of place can, in the
opinion of this Court, be gleaned in the act of some of the students in
obtaining NOCs, from the "parent" Colleges/Universities prior to the
issuance of the Notice, dated 9th August, 2018, by the GGSIPU. Even
if the formal Notice inviting applications for migration had yet to be
issued, Clause 1.0 of Ordinance 7 was very much in place, and it is a
matter of fact that, applying the said Ordinance, migrations were
being allowed, by the GGSIPU, on a yearly basis. That apart,
obtaining of the NOC from the parent University/College did not
result, ipso facto, in cessation of the relationship with such
University/College. It is not, therefore, as if the students had cancelled
their admissions with the "parent" Universities/Colleges even before
the Notice, inviting applications for migration, was issued by the
GGSIPU on 9th August, 2018. The further submission of the learned
ASG, regarding the A.P. Goyal Shimla University having granted
mass NOCs on a single date, too, cannot be regarded as a necessary
indicator of an orchestrated migration. There was no embargo on the
said College/University granting NOCs to students, seeking
migration, on the same day. The submission is entirely in the realm of
conjecture and surmise. That apart, as learned senior counsel Mr.
Munjal has correctly pointed out, the applications of several students,
who were migrating from the A.P. Goyal Shimla University were
actually allowed, so that the plea, of the learned ASG, that the said
University was resorting to fraud, does not merit any further
consideration.
34. That apart, in any event, the GGSIPU does not seek to contend,
even obliquely, that the petitioners' applications for migration were
rejected on the ground of any want of bona fides. The submission, of
learned ASG as well as of Mr. Mukul Talwar, in one voice is that the
sub-Committee recommended cases which were found to possess
"special circumstances" and rejected those which were not. It is not
for this court, therefore, to venture into the arena of whether the grant
of NOCs, by the "parent" colleges/Universities, where the petitioners
- or other applicants similarly situated - had completed their first and
second semesters, had acted bona fide, or mala fide, while granting
the said NOCs, or whether the petitioner-applicants themselves were
complicit in any subterfuge, perpetrated by the said "parent"
colleges/Universities, in that regard. Needless to say, in case it comes
to light, at any later point of time, pursuant to investigation and
enquiry conducted in accordance with law, that any of the
applicants/petitioners had sought to hoodwink the GGSIPU, or had
resorted to means, unfair or illegal in any manner, while applying for
migration, their applications would, ipso facto, merit rejection. That
stage, however, has not arrived as yet, and this Court does not
propose, therefore, to opine further on the issue. This Court is
concerned with whether the impugned communication, dated 2 nd/3rd
November, 2018, whereby the requests, for migration, of the
petitioners in these writ petitions, were "not recommended", could
sustain, keeping all factors in mind.
35. To that, in the opinion of this Court, there can be only one
answer.
36. The submission, advanced on affidavit by the Respondent No
2-College and vocalised, on its behalf, by Mr. Nandrajog, to the effect
that, in earlier years, the GGSIPU had been taking decisions on the
migration applications in August or at the latest, in September, is not
denied by the GGSIPU. Not a whisper of an explanation is
forthcoming, for the delay of 2½ months between the submissions of
applications, seeking migration, by the petitioners (towards the middle
of August, 2018), and the rejection, thereof, by the GGSIPU (on the
2nd/3rd November, 2018), except by way of a left-handed explanation
that inter-University migrations were processed after intra-University
migrations. Having not chosen to communicate with the petitioners,
for such an inordinately long period of time, during which period the
colleges, affiliated to the GGSIPU, acting on the applications
submitted by the petitioners, granted them provisional admission and
allowed them to attend the third semester classes being conducted by
the said colleges, this Court is convinced that the GGSIPU could not
have rejected the petitioners' applications for migration, barely two
weeks before the third semester examinations were to begin, by which
time the petitioners had compromised their academic session
irretrievably. The situation stands exacerbated by the act, of the
colleges, affiliated to the GGSIPU, in permitting the students to attend
classes. The GGSIPU, needless to say, blames the colleges of having
acted illegally, and the learned ASG submits that action was being
taken against the said colleges. That, however, can afford little
panacea to the students. This Court is convinced that the twin factors
of the GGSIPU having unconscionably delayed their decision on the
petitioners' applications for migration, without any explanation
therefor, and of the colleges, affiliated to the GGSIPU, having
permitted the petitioners to attend the third semester classes
conducted by them, seen together and in juxtaposition, make out a
clear case for interference by this Court, and for restraining the
GGSIPU from, at such a late stage, rejecting the petitioners'
applications for migration. The petitioner-students, and their academic
and educational careers, cannot be permitted to perish, between the
grinding wheels of the University and the college.
37. This Court is also of the opinion that, irrespective of the factual,
or contractual, link between the GGSIPU and its affiliated colleges,
there exists a definite jural link, which cannot be wished away. A
student, who applies to a college affiliated to a University, does not
consciously distinguish between the college and the University. He
cannot be expected to be aware of the nature of degree or control,
which the University exercises over the college. For the student, the
education, in the college, is the means towards the end of securing the
degree conferred by the University. For him, the two are inseparably
intermingled. A student, who attends classes in a college affiliated to
the University, having been permitted by the college to do so, could
not be expected, in his wildest imagination, to foresee the possibility
that, having completed the semester with the requisite attendance, the
University would entirely disown him. In such a situation, the student
would find herself, or himself, irremediably placed between Scylla
and Charybdis, with nowhere to go. The Court exercising writ
jurisdiction can hardly countenance such a situation, or allow it to be
tolerated, in fact or in law. It is the bounden duty of the court, in such
a situation, to create a Trishanku swarga for the students, so that they,
and their education, are not sacrificed, in the feud between the
University and its affiliate college.
38. This Court is also constrained to observe, in this context, that
the reliance, by Mr. Talwar, on the judgment of the Supreme Court in
T. M. A. Pai (supra) appears inapposite. The said decision does not
deal, directly or indirectly, with the degree of control, which may be
exercised by a private university over its affiliate colleges. Paragraphs
48, 56 and 67 to 70 of the judgment in T. M. A. Pai (supra), to which
Mr Talwar draws particular attention, too, fail to enlighten. The
concept of autonomy of affiliate educational institutions, in the said
decision, is delineated either in the context of minority educational
institutions, or of aided educational institutions. Even in these cases,
the judgment concentrates essentially on the degree of governmental
control over such colleges.
39. The Court is, in the present case, concerned with the rights of
the students, as ventilated by them, and has, therefore, to approach the
issue from the perspective of the students. Besides, this Court is
unable to accept that the GGSIPU was entirely unaware of the
admissions, granted by its affiliate colleges, to the "migratory"
students. It has been pointed out, in this regard, both by Mr. Munjal
and Mr. Nandrajog, that the communication, from the University,
seeking "better particulars" (as the learned ASG would phrase it) from
the students applying for migration, was also addressed to the colleges
where the students were studying. There was no independent
communication to any of the students in this regard. This, too,
indicates that the GGSIPU was aware of the fact that the students
were studying with the College concerned or, at any rate, could be
contacted through the College.
40. The reliance, by the petitioners, on the doctrine of estoppel, is
also well-placed. Having failed to act on the applications of the
petitioners, seeking migration, till two weeks prior to the date of
commencement of the third semester examinations, the GGSIPU was
clearly estopped, by conduct, from rejecting the said applications.
Having allowed, consciously or unconsciously, the students to attend
the third semester classes with its affiliate colleges, keeping silent, all
the time, regarding their requests for migration, the GGSIPU could
not, at the last minute, be permitted to pull out the rug from under the
feet of the students. Reference may usefully be made, in this context,
to the following passages, from "Estoppels and the Substantive Law"
by Arthur Caspersz, which were approvingly cited by the Supreme
Court in B. L. Sreedhar v. K. M. Munireddy, (2003) 2 SCC 355:
"42. In such cases the conduct must be such that assent
may reasonably be inferred from it. The doctrine of
acquiescence has, however, been stated to be founded
upon conduct with a knowledge of legal rights, and as
stated in some cases appears to imply the existence of
fraud on the part of the person whose conduct raises an
estoppel. The remarks of the Judicial Committee,
however, in Sarat Chunder Dey v. Gopal Chunder
Laha [(1892) 19 IA 203] clearly extend the doctrine of
estoppel by conduct of acquiescence or indifference to
cases where no fraud whatever can be imputed to the
person estopped, and where that person may have acted
bona fide without being fully aware, either of his legal
rights, or of the probable consequences of his conduct. In
every case, as already pointed out, the determining
element is not the motive or the state of knowledge of the
party estopped, but the effect of his representation or
conduct as having induced another to act on the faith of
such representation or conduct.
Lapse of time and delay are most material when the
plaintiff, by his conduct may be regarded as waiving his
rights, or where his conduct, though not amounting to a
waiver, has placed the other party in a situation in which
it would not be reasonable to place him if the remedy
were afterwards asserted. When, however, an argument
against a relief, otherwise just, is founded upon mere
delay not amounting to bar by limitation, the validity of
that defence must be tried by principles substantially
equitable."
(Emphasis supplied)
41. Statutory support, for the principle of "estoppel", is to be found
in Section 115 of the Indian Evidence Act, 1882 (hereinafter referred
to as "the Evidence Act"). Dealing with the said provision, and
examining the concept of "estoppel" conceptualised thereunder, para
35 of the judgment of the Supreme Court in Pratima Chowdhury v.
Kalpana Mukherjee, (2014) 4 SCC 196 holds thus:
"35. Section 115 of the Evidence Act is being extracted
hereinbelow:
"115.Estoppel.--When one person has, by his
declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be
true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or
proceeding between himself and such person or his
representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that
certain land belongs to A, and thereby induces B to
buy and pay for it.
The land afterwards becomes the property of A,
and A seeks to set aside the sale on the ground that,
at the time of the sale, he had no title. He must not
be allowed to prove his want of title."
It needs to be understood that the rule of estoppel is a
doctrine based on fairness. It postulates the exclusion of
the truth of the matter. All for the sake of fairness. A
perusal of the above provision reveals four salient
preconditions before invoking the rule of estoppel.
(i) Firstly, one party should make a factual
representation to the other party.
(ii) Secondly, the other party should accept and
rely upon the aforesaid factual representation.
(iii) Thirdly, having relied on the aforesaid
factual representation, the second party should
alter his position.
(iv) Fourthly, the instant altering of position,
should be such, that it would be iniquitous to
require him to revert back to the original position.
Therefore, the doctrine of estoppel would apply only
when, based on a representation by the first party, the
second party alters his position, in such manner, that it
would be unfair to restore the initial position."
(Emphasis supplied)
42. All the above four ingredients, required to be fulfilled before
the principle of "estoppel" could apply are seen, in fact, to be fulfilled
in the facts of the present case. By failing to act on the applications, of
the petitioners, for migration, for 2 ½ months, and to communicate,
with the petitioners, for the entire said period, the GGSIPU, by its
inaction, effectively held out a representation, to the students, causing
them to believe that their applications stood approved, especially as,
in earlier years, the decisions on the applications were taken by
August/September. The students, by severing their links with their
parent colleges/Universities, and continuing to pursue their studies
under the Respondent No 2-College, believed and acted on the said
representations. Having severed their links with their parent
universities/colleges, the petitioners altered their factual position, on
the basis of such belief. The said altering of the possession of the
petitioners' had resulted in a situation in which it was not only
iniquitous, but impossible, for the status quo ante to be restored as,
were the decision of the GGSIPU, to reject the petitioners'
applications, to be upheld, the petitioners would lose two precious
academic years, and there could be no question of their returning to
their parent Colleges/Universities. Applying, therefore, Section 115 of
the Evidence Act, the GGSIPU stands estopped from contending that
the petitioners applications for migration stood rightly rejected.
43. In a somewhat more recent decision in Manuelsons Hotels (P)
Ltd v. State of Kerala, (2016) 6 SCC 766, the Supreme Court has held
thus, regarding the doctrine of "promissory estoppel":
"19. In fact, we must never forget that the doctrine of
promissory estoppel is a doctrine whose foundation is that
an unconscionable departure by one party from the
subject-matter of an assumption which may be of fact or
law, present or future, and which has been adopted by the
other party as the basis of some course of conduct, act or
omission, should not be allowed to pass muster. And the
relief to be given in cases involving the doctrine of
promissory estoppels contains a degree of flexibility
which would ultimately render justice to the aggrieved
party.
****
20. The above statement, based on various earlier
English authorities, correctly encapsulates the law of
promissory estoppel with one difference - under our law,
as has been seen hereinabove, promissory estoppel can be
the basis of an independent cause of action in which
detriment does not need to be proved. It is enough that a
party has acted upon the representation made. The
importance of the Australian case is only to reiterate two
fundamental concepts relating to the doctrine of
promissory estoppel - one, that the central principle of
the doctrine is that the law will not permit an
unconscionable departure by one party from the subject-
matter of an assumption which has been adopted by the
other party as the basis of a course of conduct which
would affect the other party if the assumption be not
adhered to. The assumption may be of fact or law, present
or future. And two, that the relief that may be given on the
facts of a given case is flexible enough to remedy injustice
wherever it is found. And this would include the relief of
acting on the basis that a future assumption either as to
fact or law will be deemed to have taken place so as to
afford relief to the wronged party."
(Emphasis supplied)
The principles enunciated in the above extracted passages, from the
judgment in Manuelsons Hotels (supra), in the opinion of this Court,
completely cover the facts of the present case. On the basis of the
silence, on the part of the GGSIPU, in responding to the migration
applications submitted by them, and the positive act of the
Respondent No 2-College, in permitting them to attend the third
semester classes, during which period the Respondent No. 2-College
marked the petitioners' attendance, issued identity cards to them, and
allowed them to participate in internal assessments (with which acts,
this Court reiterates, the GGSIPU cannot seek to entirely distance
itself), the petitioners were led to assume that their applications were
in order. An "unconscionable departure", on the part of the GGSIPU,
from the said assumption of fact cannot, therefore, be permitted, at
this stage, when barely two weeks were left for the commencement of
the third semester examinations. The Supreme Court has, in the above
extracted passages, also highlighted that the consideration, which has
to bear with the Court while examining such facts, is the solemn duty
of rendering justice to the wronged party. It is emphasised, by the
Supreme Court, that "the relief that may be given on the facts of a
given case is flexible enough to remedy injustice wherever it is
found". This court is convinced that, were the decision of the
GGSIPU, to reject the petitioners' applications for migration, at this
stage when they were on the threshold of appearing in the third
semester examinations, and had irreconcilably altered their positions,
to be upheld, it would result in manifest injustice to the petitioner-
students. This Court cannot be privy to such injustice.
44. In the above context, reference may also usefully be made to
the judgment of a Division Bench of this Court in University of Delhi
v. Ashok Kumar Chopra, AIR 1968 Del 131. This Court was seized,
in the said case - which was an appeal from the judgment of a learned
Single Judge - with a situation somewhat similar to that obtaining in
the present case. The three student-appellants, in that case, had also
applied for admission to the B.A. (Pass) course in the Deshbandhu
College of the University of Delhi, having filled in the requisite
applications and furnished all required particulars therefor.
Provisional admission was granted, to the students, by the College.
The students completed the semester, whereafter the University
sought to cancel their admissions on the ground that they did not
possess the essential qualifications for admission to the B.A. (Pass)
course, the SSC qualification possessed by them being recognised as
equivalent only to matriculation by the University of Delhi. Among
other findings, the Division Bench of this Court held that, "once the
University had kept quiet and had not set any intimation to the
students concerned that it had not confirmed the provisional
admission made by the Principals of the Colleges, that silence and
inaction will amount to a representation that the University had
approved the admission of the students concerned", which operated as
an estoppel, against the University being allowed to contend, or plead,
that it had not approved their admissions. Reiterating the finding yet
again, this Court went on, in the same decision, to rule that "by its
inaction and silence for a long time, the University must be held to
have confirmed or approved the admission of the students in question
and the University is estopped from contending that in fact it did not
approve the admission of the students in question". The facts
obtaining in the present case, in the opinion of this Court, warrant a
similar conclusion.
45. To the plea of estoppel, argued by learned Senior Counsel for
the petitioners, Mr. Mukul Talwar responds that there could be no
estoppel against statute. The submission is, however, in the opinion of
this Court, neither here nor there. That there can be no estoppel
against statute, is axiomatic. No occasion arises, however, for
application of the said principle, in the facts of the present case,
inasmuch as this Court is not directing the GGSIPU to, in any manner,
violate the statute, i.e. the provisions of Ordinance 7. The right, of the
GGSIPU, to scan the applications for migration, received from
students, and to select some and reject others, is not being
compromised, in any manner, by this judgment. Exercise of power
under the statute has, however, necessarily to be in a fair and
transparent manner, and not in a manner which would result in
injustice to the students. Requiring implementation of the statute - or,
in this case, the Ordinance - in a meaningful and reasonable manner,
does not amount to acting "against statute". The plea, of Mr. Talwar,
that there can be no estoppel against statute, while unexceptionable as
a proposition of law, has, therefore, no application in the facts of the
present case.
46. This Court is always required to be mindful of the fact that
justice is the zenith to which the law aspires. Law, it is trite, bends
before justice. The following words, from S. Nagaraj v. State of
Karnataka, 1993 Supp (4) SCC 595, immediately come to mind:
"Justice is a virtue which transcends all barriers. Neither
the rules of procedure nor technicalities of law can stand
in its way. The order of the Court should not be
prejudicial to anyone. ... Even the law bends before
justice. Entire concept of writ jurisdiction exercised by
the higher courts is founded on equity and fairness."
(Emphasis supplied)
47. In the present case, neither did the GGSIPU Act, nor did
Ordinance 7, enumerate the "special circumstances", the fulfilment of
which, alone, entitled a student to seek migration to the GGSIPU. The
assertion, by the Respondent No 2-college, on affidavit, to the effect
that no such "special circumstances" had ever been conceptualised in
earlier years, stands unrebutted. Nor did the Notice, dated 9 th August,
2018, issued by the GGSIPU inviting applications for migration,
require the students to state any such "special circumstances". The
petitioner-students applied consequent to the said Notice, and it would
be totally unreasonable to expect them to familiarise themselves with
the provisions of Ordinance 7. The GGSIPU ought, at the very outset,
to have made known to the applying students, in the Notice dated 9 th
August, 2018, the position that their applications would be considered
only if "special circumstances" existed in their favour, and that they
were, therefore, required to make out a case to that effect, by citing, or
providing, such "circumstances". The applications, as submitted by
the petitioners were in order and in accordance with the Notice, and
were submitted within the time prescribed therefor. The Respondent
No 2-College provisionally admitted the petitioners, and allowed
them to attend classes for the entirety of the third semester, and there
is no reason for the students to have believed that this was being done
without the knowledge and approval of the GGSIPU. All indicia
which apply to a regular course of study by regular students, such as
issuance of Identity Cards, marking of attendance, and internal
assessments, were applied to the petitioners. As a result, the
petitioners severed their links with their parents colleges/Universities,
and ingratiated themselves with the Respondent No 2-College. At the
fag end of the semester, when the students were on the brink of
having to write their third semester examinations, the GGSIPU
communicated, to them, the decision "not to recommend" their
applications for migration. This Court is of the view that the said
decision, and the manner in which, and the stage and time at which, it
was communicated by the GGSIPU, were entirely unfair, to say the
least.
48. The submission, of learned ASG, that migration is not an
alternate mode of admission, and that, if relief were to be granted by
the court in the present case, it would amount to legalising "backdoor
entries", and the reliance placed, by her, on the judgment of the
Constitution Bench of the Supreme Court in State of Karnataka v.
Umadevi, (2006) 4 SCC 1 are, in the opinion of this Court, misguided.
In the first place, migration is, most certainly, a form of admission
into the University as, by migrating to a University, the student, who
was not a student of the University, becomes one. Secondly, persons
who secure admission by migration cannot be treated as backdoor
entries, as migration is a statutorily recognised, perfectly legal form of
securing admission to a University, and to a college affiliated thereto.
This Court is also unable to appreciate the submission, repeatedly
urged by the learned ASG as well as by Mr. Mukul Talwar, that
students, who failed to make the grade on merit, were seeking, by the
circuitous mode of migration, to gain access to the portals of the
University. The facility of migration has little to do with the merit of
the student, and everything to do with the circumstances in which the
student is placed. A student who, owing to the circumstances in which
he is placed, seeks to migrate to "better" University, neither
circumvents, thereby, the normal process of admission, nor seeks any
kind of "backdoor entry" to the University. To equate such
admissions, with illegal appointments to government service, effected
in contravention of the regularly prescribed mode of recruitment is, in
the opinion of this Court, to equate chalk with cheese. The reliance,
of the learned ASG, on Uma Devi (supra), too, therefore, fails to
convince.
49. I may, at this stage, advert to the disclaimer, contained in the
Notice dated 9th August, 2018, on with such pointed reliance is placed
by all learned Senior Counsel appearing for the respondents. The said
disclaimer merits reproduction, thus:
"Issuance of No Objection Certificate (NOCs) from the
Institute does not imply cancellation of Admission from
the particular college, it only means consent for migration
given by the College. Submission of Migration
application does not imply that the migration will be
carried out."
It would be seen that this clause uses two expressions, i.e. "college"
and "Institute". In contrast, the first para of the said Notice requires
the applicant-students to submit, inter alia, "No Objection Certificate
(NOCs) from both the Institutes". Where, therefore, the first para of
the Notice refers to the "parent" College/University, from where the
students had passed their first year, as well as the College to which
they were seeking migration, as "Institutes", the disclaimer clause, at
the foot of the Notice, refers to the "college" and the "Institute".
50. Seen thus, the above-extracted disclaimer clause does not make
for easy reading, let alone understanding. The respondents would seek
to interpret the word "Institute", as contained in the said clause, to be
the college/Institute to which the students seek to migrate, and the
word "college" as the "parent" college/University. That interpretation,
however, presents more than one difficulty. How, in the first place,
could the Clause declare that issuance of NOC, by the college to
which the student seeks to migrate, would "mean consent for
migration given by the college" from which the student seeks to
migrate? Interestingly, in the case of Petitioner No. 4 in W.P. (C)
12097/2018 (Om Sudhir Vidyarthi), the documents on record indicate
that NOC was granted by the parent University, i.e. the Amity
University, Uttar Pradesh on 17th July, 2018, whereas NOC had been
granted by the Respondent No 2-College, i.e. the VIPS prior thereto,
on 2nd July, 2018. This militates against interpreting the disclaimer
clause, in the Notice, dated 9th August, 2018, as meaning that grant of
NOC, by the College to which the student seeks migration, implied
grant of consent, for migration, by the "parent" College.
51. A more reasonable interpretation, of the said disclaimer clause
appears, in the opinion of this Court, to be that grant of NOC, by the
Institute/college, to which the student seeks migration, would imply
grant of consent, by the said Institute/college, thereto, but would not
be a guarantee that migration would be allowed by the GGSIPU. Even
if one were to accord, to the Clause, such an interpretation, that would
still not justify the GGSIPU taking its own time to decide the
migration applications, and rejecting them at the eleventh hour. As
such, the above-extracted disclaimer clause, as contained in the
Notice dated 9th August, 2018, can support the respondent's case only
so much, and no more.
52. Migration, no doubt, is not a matter of right. This Court is also
in agreement with the learned ASG when she contends that there was
no sacrosanct principle, in law, requiring the "special circumstances"
to be spelt out in Ordinance 7, and that, if the sub-committee,
constituted in accordance with the said Ordinance were, while
examining the applications for migration, permitted to determine, for
itself, the "circumstances" which merited being regarded as "special",
no real exception, in law, can be taken thereto. For the same reason,
the submission, of Mr. Munjal, that, by setting out, in its Minutes
dated 23rd October, 2018, the criteria which, in the opinion of the sub-
Committee, would constitute "special circumstances", the sub-
Committee had, in excess of the jurisdiction vested in it, amended the
provisions of the Ordinance, and that such amendment could not
apply retrospectively, do not appeal. The submission, of Mr. Munjal,
to the effect that the sub-committee had acted arbitrarily, inasmuch as
it had, between applicant-students who had cited the same
circumstance/reason for seeking migration, recommended some and
rejected others, has also been answered, by the learned ASG, by
pointing out that the sub-committee would have arrived at its
decision, not only on the basis of the reasons cited by the concerned
applicants, but also in view of the documents and materials provided
in support thereof, all of which were not before this Court. There
appears to be substance in the said submission of the learned ASG.
However, given the view that this Court is taking in the present case,
no occasion arises, for this Court to enter into a comparative
assessment of the decisions taken by the sub-committee in respect of
individual students - assuming, that is, that, in exercise of its writ
jurisdiction, this Court would at all be competent to do so.
53. These factors, however, pale into insignificance, in view of the
fact that the affiliate colleges had granted provisional admission to the
petitioners and permitted them to attend the third semester classes
conducted by them, and the GGSIPU, for its part, maintained
complete silence, on the petitioner's applications for migration, not
choosing to communicate with the petitioners till the impugned order
dated 2nd November, 2018. These factors, by themselves, vitiate the
decision, of the GGSIPU, not to recommend the applications, for
migration, submitted by the petitioners.
54. In view of the above reasoning adopted by this Court, it
becomes unnecessary to burden this judgment by reference to the
various decisions, enumerated in para 22 (supra), on which learned
Senior Counsel for the respondents placed reliance, as none of the
said decisions deal with a similar fact situation.
Conclusion
55. Resultantly, the impugned decision, of the GGSIPU, not to
recommend the petitioners, in all these writ petitions, for migration, to
the colleges in which they have attended the third semester classes, is
quashed and set aside. The applications for migration, submitted by
the petitioners pursuant to the Notice dated 9th August, 2018, shall
accordingly stand allowed. The petitioners, who were permitted to
undertake the third semester examinations, by interim orders passed
by this Court in these proceedings, shall be treated as having regularly
appeared in the said examinations, and their future advancement shall
abide by their performance therein seen in the light of the applicable
rules and guidelines in that regard.
56. These directions shall also cover the petitioners, if any, in
respect of whom verification, of the documents submitted by them, is
still under process. If, however, on such verification, the petitioners
are found ineligible for migration, or any lack of bona fides is found,
in the application of any of the petitioners, this judgment shall not
preclude the GGSIPU from cancelling/withdrawing the permission for
migration, granted by this judgement. Needless to say, in any such
eventuality, the rights of any student/students, which may be
prejudicially affected, to challenge the decision, would remain saved.
57. The writ petitions stand allowed in the above terms and to the
above extent, with no order as to costs.
C. HARI SHANKAR, J
JANUARY 7, 2019
HJ
