Delhi High Court
Vidhi Uppal vs Union Of India & Anr. on 7 March, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: March 07, 2022
+ W.P.(C) 756/2021 with CM APPLs. 1909/2021, 4984/2021,
19314/2021 & 19326/2021
VIDHI UPPAL ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
+ W.P.(C) 1424/2021 with CM APPL. 6197/2021
SARTHAK ABROL ..... Petitioner
versus
UNIVERSITY OF DELHI ..... Respondent
+ W.P.(C) 914/2021 with CM APPLs. 2474/2021 & 4994/2021
PIYA UPPAL ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
Present:- Mr. Mukul Talwar, Sr. Advocate with Ms. Aastha
Dhawan, Ms. Pallavi Saigal and Mr. Aditya Raj, Advs.
for the Petitioner in W.P.(C) Nos. 756/2021 & 914/2021.
Mr. Sarthak Abrol, petitioner in person in
W.P.(C) 1424/2021.
Mr. Mohinder J.S. Rupal, Std. Counsel with Ms. V.
Bhawani, Advocate with Mr. Ankur Chhibber, Advocate
with Mr. Anshuman Mehrotra, Mr. Nikunj Arora,
Advocates for University of Delhi.
Mr. Ghanshyam Mishra, Advocate for R-1 in
W.P.(C) Nos. 756/2021 & 914/2021.
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Signing Date:07.03.2022
21:32:25 W.P.(C) Nos. 756, 1424 & 914 of 2021 Page 1 of 35
%
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
1. These three writ petitions have been filed by candidates for
admission to the three-year LL.B. course of the Faculty of Law,
University of Delhi [hereinafter, "the University"] in the academic
session 2020-2021. As the petitions raise several common questions,
they were taken up for hearing together and are disposed of by this
common judgment.
A. Facts
2. The Law Faculty of the University published a Prospectus in
March, 2020 [hereinafter, "the Prospectus"] for admission to the
LL.B. course commencing in the academic session 2020-2021. The
petitioners applied for admission pursuant thereto, under the
Unreserved (General) category [hereinafter, "UR category"]. They
also appeared in an entrance test held on 09.09.2020.
3. After the publication of the answer key dated 06.10.2020 for the
entrance test, Ms. Vidhi Uppal, the petitioner in W.P.(C) 756/2021,
raised a challenge to the answer key in respect of one question
[Question No. 44, Question ID 8394]. However, her challenge was
unsuccessful.
4. In the entrance test, out of the maximum score of 400 marks,
the petitioners' scores were declared as follows: -
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S. No. Writ Petition Name of the Marks
No. Petitioner Scored
I. W.P.(C) Ms. Vidhi 216
756/2021 Uppal
II. W.P.(C) Ms. Piya 203
914/2021 Uppal
III. W.P.(C) Mr. Sarthak 209
1424/2021 Abrol
5. The University published four admission lists in respect of the
LL.B. course - on 01.12.2020, 08.12.2020, 21.12.2020 and
30.12.2020. As admissions for the academic year 2020-2021 were
considerably delayed by virtue of the COVID-19 pandemic, the
University took a decision to close the admissions process on
31.12.2020. During the course of hearing, it was stated that this was
in accordance with the directions of the University Grants
Commission [hereinafter, "UGC"].
6. The petitioners found that their applications for admission were
unsuccessful, and have filed these writ petitions challenging the
admissions process undertaken by the University. They have also
placed on record a "Centre Allocation List" dated 15.01.2021 and a
revised allocation list dated 22.01.2021 which, according to them,
demonstrate that the admissions process itself was tainted by
irregularities and malafides.
B. Reliefs sought
7. In the writ petitions, the following reliefs have been sought:
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W.P.(C) 756/2021
"a. Issue a writ of Certiorari or any other writ or
direction to the Respondents and call for the records of
the entire admission process for the academic year 2020-
21 and quash the entire admission process as tainted with
mala fide;
b. Issue a writ of Mandamus or any other writ or
direction in the nature thereof for appointing an expert
external agency to look into the relevant records and
suggest measures to correct the mistakes made by the
Respondents
c. Issue a writ of Mandamus or any other writ or
direction in the nature thereof granting the Petitioner the
extra 5 marks for the question no. 8394 and thereby
increasing her final marks to 221;
d. Issue a writ of Mandamus or any other writ or
direction in the nature thereof directing the Respondents
to fill up the 437 vacant seats for the academic year
2020-21 in the LL.B. course;
e. Issue a writ of Mandamus or any other writ or
direction in the nature thereof to grant admission to
Petitioner to the LL.B course for the present academic
year 2020-21 against the admittedly available vacant
seats and those seats that shall become available after
correcting the mistakes made by the Respondents;
f. Any other and further relief which this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case and in favour of the
Applicant."
W.P.(C) 1424/2021
"(i) Issue an appropriate Writ or Order or direction
directing the Respondent to grant admission to the
Petitioner in the L.L.B. Program at the Faculty of Law,
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University of Delhi for the academic session 2020-23;
and
(ii) Pass such other or further order(s) as this Hon'ble
Court may deem fit and proper in facts and
circumstances of the present case."
W.P.(C) 914/2021
"a. Issue a writ of Certiorari or any other writ or
direction to the Respondents and call for the records of
the entire admission process for the academic year 2020-
21 and quash the entire admission process as tainted with
mala fide;
b. Issue a writ of Mandamus or any other writ or
direction in the nature thereof for appointing an expert
external agency to look into the relevant records and
suggest measures to correct the mistakes made by the
Respondents
c. Issue a writ of Mandamus or any other writ or
direction in the nature thereof directing the Respondents
to fill up the vacant seats as per the final allocation list
for the academic year 2020-21 in the LL.B. course;
d. Issue a writ of Mandamus or any other writ or
direction in the nature thereof to grant admission to
Petitioner to the LL.B course for the present academic
year 2020-21 against the admittedly available vacant
seats."
C. Contentions of the parties
8. The following principal grounds of challenge have been
articulated in the writ petitions:
A. That out of the total number of 2922 seats advertised in the
Prospectus, 437 seats remained vacant after the close of
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admissions, despite the fact that several eligible candidates have
not been granted admission.
B. Ms. Vidhi Uppal also contended that one of the questions asked
in the entrance examination was incorrectly answered in the
answer key prepared by the National Testing Agency
[hereinafter, "NTA"], which conducted the examination on
behalf of the University. She sought award of grace marks in
respect of the incorrect question.
C. The petitioners allege a lack of transparency in the process of
preparation of the various admission lists, inasmuch as no
information was disclosed by the University during the
admissions process as to the number of seats offered, the cut-off
marks in each category, the number of students who took
admission in each round, etc.
9. During the course of hearing of the writ petitions, as recorded in
the order dated 09.02.2021, the contention of the petitioners was that
several candidates for admission to the LL.B. course have been
admitted in the UR category despite having scored less marks than the
petitioners in the entrance test. This contention was advanced relying
upon the Centre Allocation Lists annexed by the petitioners alongwith
two interlocutory applications1. The aforesaid allegations were
expressly disputed by the University. Having regard to the contentions
raised by the parties on the basis of the documents placed on record,
CM APPL. 4984/2021 filed in W.P.(C) 756/2021, and CM APPL. 4994/2021 filed in
W.P.(C) 914/2021
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the University was called upon from time to time to file affidavits with
regard to specific issues. For further clarity, the University was also
directed to produce the records before the Court, after giving
inspection thereof to learned counsel for the petitioners. As some
grievances remained on both sides with regard to the conduct of the
inspection, the petitioners were directed to enumerate their queries and
documents of which disclosure was sought by way of an affidavit,
which the University was required to answer, also on affidavit. A
representative of the University, who was familiar with the admissions
process, was requested to remain present during the hearing, either
physically or by way of video conference, in order to assist the Court
with the relevant records. Prof. Vandana, the then Dean, Faculty of
Law, and other representatives of the University thereafter attended
the hearings by video conference.
10. On behalf of Ms. Vidhi Uppal and Ms. Piya Uppal, I have heard
Mr. Mukul Talwar, learned Senior Counsel. Mr. Sarthak Abrol
appeared in person and supplemented the submissions made by
Mr. Talwar. On behalf of the University, submissions were advanced
by Mr. Mohinder J.S. Rupal and Mr. Ankur Chhibber, learned
counsel. Prof. Vandana also answered some factual queries.
11. Learned counsel on both sides were given the opportunity to
take me through the detailed factual record in support of their
respective contentions. Mr. Talwar's endeavour at each stage of the
process was to demonstrate that the documents disclosed by the
University did not reveal a satisfactory and objective method of
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undertaking the round-wise process of admissions. In the final hearing
of the petition, he sought to justify this stand on the basis of the list of
documents submitted by the University in an affidavit dated
24.05.2021. According to Mr. Talwar, the position that emerges from
an analysis of the aforesaid documents is that all the advertised seats
under various categories were, in fact, not offered by the University to
any of the candidates prior to 31.12.2020. He further contended that,
in fact, after closure of the admissions process on 31.12.2020, a very
large number of seats had admittedly become vacant, which ought not
to be wasted. In the face of the improbably large number of existing
vacancies, even according to the University itself, Mr. Talwar
submitted that the seats ought to be clubbed together, irrespective of
the category in which the vacancies arose, and be offered to eligible
candidates.
12. On the question of whether relief could be granted to the
petitioners alone, Mr. Talwar cited authority in support of the
proposition that no fresh round of counselling was mandatory and that
the Court can grant relief of admission to those candidates who have
asserted their legal rights by approaching the Court. Without prejudice
to this contention, Mr. Talwar also submitted that in the event the
Court finds an illegality in the conduct of the admissions process and
considers it appropriate to order a fresh round of counselling, all
vacant seats - whether arising before or after the close of admissions -
ought to be filled.
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13. On the basis of the affidavit of the University dated 24.05.2021,
Mr. Talwar submitted that the University had provided information
only regarding the number of candidates who took admission in the
UR category. He pointed out that the affidavit and the enclosed
documents did not contain sufficient information to understand the
dynamic process of admissions through the four rounds which
admittedly took place.
14. According to Mr. Talwar, the University's affidavit and the
chart annexed to it demonstrate that out of the total number of 1167
UR seats advertised in the Prospectus, 1156 seats were taken.
However, he stated that these included two students who were shifted
to the UR category from the Economically Weaker Section category
[hereinafter, "EWS category"] after the fourth admission list, and also
two students who had been granted admission only after the
admissions process was closed, pursuant to the Grievance Redressal
Mechanism [hereinafter, "GRM"]. Mr. Talwar questioned the conduct
of the University in having kept these seats in the UR category vacant,
even at the end of the admissions process. Taking the total number of
UR category admissions as 1156 in accordance with the University's
affidavit, Mr. Talwar submitted that the University's contention that
11 candidates cancelled their admission after 31.12.2020 is belied by
its earlier list dated 23.03.2021, wherein vacancies in the UR category
were shown as zero. Mr. Talwar contended that the list dated
23.03.2021 shows 96 vacancies. According to him, this was after
filling up of 34 vacancies by the GRM and cancellations which took
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place after 31.12.2020. He submitted that this fact clearly
demonstrates that all seats for admission were not offered at all during
the admissions process.
15. Mr. Talwar asserted that the position of vacancies, cancellations
and seats filled up by the GRM shows that as of 31.12.2020, there
were at least 19 seats vacant across various categories, including four
in the UR category, three in the Scheduled Caste category [hereinafter,
"SC category"], six in Scheduled Tribe category [hereinafter, "ST
category"], and six in the EWS category.
16. With regard to the allegation that one of the questions in the
entrance test was patently incorrect, Mr. Talwar referred to Question
44 [Question ID 8394] which reads as follows:
"44) Which of the following grounds can be invoked to
restrict freedom of speech and expression according to
the Constitution of India?
Choose the correct answer from the options given below
A. Sovereignty and Integrity of India
B. Friendly relations with foreign States
C. Security of the State
D. Contempt of court
[Question ID = 8394]
1. A, B and D only
[Option ID = 33570]
2. B, C and D only
[Option ID = 33571]
3. A, B and C only
[Option ID = 33572]
4. All of these
[Option ID = 33573]"
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In the answer key, the correct answer stipulated by the NTA was "A,
B and D only" [Option ID = 33570]. Mr. Talwar submitted that a mere
reference to Article 19(2) of the Constitution of India would show that
the Constitution permits restriction of freedom of speech and
expression inter alia on the grounds of sovereignty and integrity of
India, friendly relations with foreign States, security of the State and
contempt of Court. According to him, therefore, the correct answer
should have been "All of these" [Option ID = 33573]. He submitted
that, in terms of a section of the Prospectus entitled 'Important
Instructions'2, objections to the answer key were to be addressed to the
Dean, Law Faculty in writing alongwith supporting documents, and to
be decided by an expert body of law teachers. Mr. Talwar contends
that the objection was duly raised by Ms. Vidhi Uppal, but the answer
key was not corrected.
17. In support of the aforesaid contentions, Mr. Talwar cited the
order dated 11.09.2017 of a learned Single Judge of this Court in
Manmeet Kaur Sareen vs. Union of India and Another3, the judgment
of this Court in Saumya Chopra vs. University of Delhi4 and the
judgment of the Supreme Court in Ashok Alias Somanna Gowda and
Another vs. State of Karnataka by its Chief Secretary and Others5.
18. Mr. Talwar submitted that, in the order dated 11.09.2017 in
Manmeet Kaur Sareen6, this Court, relying upon the judgment of the
Page 46 of W.P.(C) 756/2021
W.P.(C) 7730/2017
4 W.P.(C) 12929/2018 decided on 18.12.2018
5 (1992) 1 SCC 28
6 Supra (note 3)
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Karnataka High Court in M. Shravana Kumar vs. Karnataka Regional
Engineering College7, categorically held that seats in educational
institutions ought not to remain vacant, particularly when they cannot
be carried forward to the next year. In these circumstances, this Court
came to the conclusion that the vacant seats ought to be allotted to
eligible candidates, regardless of the category under which they had
applied.
19. The judgments in Saumya Chopra8 and Ashok9 were cited to
argue that in the circumstances of these cases, relief can be granted to
the candidates who have come before the Court.
20. Mr. Abrol sought to supplement Mr. Talwar's arguments with
reference to three judgments. He submitted that the Supreme Court in
Index Medical College, Hospital and Research Centre vs. State of
Madhya Pradesh and Others10 held that an attempt should be made to
ensure that seats in professional colleges are filled up. For the same
purpose, he also relied upon the judgment of a learned Single Judge of
the Punjab and Haryana High Court in Sumedha Kalia (Ms.) and
Others vs. The State of Haryana and Others11. Mr. Abrol lastly
submitted that admissions to the LL.B. course of the University were
the subject matter of litigation in the previous year also in Saharsh
ILR 1991 Karnataka 594 [W.P. No. 19603/1990 decided on 28.01.1991]
Supra (note 4)
9 Supra (note 5)
10 (2021) SCC Online SC 318 [Civil Appeal No. 867/2021 @ SLP(C) 179/2021 decided on
03.02.2021] [paragraphs 24-26]
11 (1991) 2 ILR Punjab and Haryana [Civil Writ Petition No. 11980/1989 decided on
22.01.1990] [paragraphs 10 and 11]
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Saxena vs. University of Delhi and Another12 and connected matters,
in which this Court granted relief only to those candidates who had
approached the Court. Mr. Abrol submitted that a similar course ought
to be adopted for the year in question also.
21. In the submissions made on behalf of the University, Mr. Rupal
and Mr. Chhibber argued that the grievances raised by the petitioners
in the writ petitions were substantially at variance from the arguments
advanced in the course of hearing. They submitted that the petitioners
have, through the course of this litigation, sought to enter into a roving
inquiry to substantiate their allegations of deficiencies in the
admissions process.
22. Mr. Rupal submitted at the outset that the affidavits and
documents placed on record by the University make it abundantly
clear that as far as the UR category is concerned, which is the category
in which all three of the petitioners had applied, the entirety of 1167
seats were, in fact, offered for admission and filled prior to
31.12.2020. The University has also categorically stated in its
affidavits dated 17.02.2021, 03.04.2021 and 24.05.2021 that, as far as
the UR category is concerned, the minimum score in the entrance test
for successful candidates was 225 marks, and no candidate has been
admitted with a lower score.
23. On the question of vacancies in the UR category, Mr. Rupal
prefaced his factual submissions by stating that the admissions process
in the year 2020-2021 was, for the very first time in the history of the
Order dated 30.01.2020 in W.P.(C) 10345/2019
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University, undertaken online. In the wake of the COVID-19
pandemic, the University was compelled to design an online
admissions portal and undertook the process through the said
mechanism. He submitted that there were 11 cancellations after the
close of admissions [five each in January and February, 2021 and one
in March, 2021], resulting in 11 seats becoming vacant. It was
clarified on behalf of the University that the two EWS category
candidates who were listed in the chart annexed to the affidavit dated
24.05.2021 as having been shifted to the UR category "after the fourth
list cut-off" were moved to the UR category at the time of preparation
of the fourth list itself, after determination of the cut-off. It was also
categorically submitted that the candidates whose admissions were
ordered by the GRM were, in fact, candidates who had been admitted
in the course of the four rounds of admissions. They had also
deposited their fees and accepted their place. In the cases of these
candidates, the admissions, however, were reflected as 'cancelled' on
the University's admissions portal by reason of some discrepancy or
error. None of the candidates so admitted had, in fact, withdrawn their
fees or otherwise cancelled their admissions, and all of them had
scored higher than the entrance test cut-off of 225 marks. It is in these
circumstances that they took their cases to the GRM which directed
the University to take necessary action to admit them. It was
specifically stated that no seats in the UR category were kept vacant at
the end of the admissions process.
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24. Mr. Rupal countered the petitioners' submission that unoffered
seats in reserved categories ought to have been offered to the UR
category candidates with the following submissions:
(a) As far as vacant seats in the SC and ST categories are
concerned, Mr. Rupal drew my attention to the stipulation in
Clause 2.4.1 of the Bulletin of Information of the University
[hereinafter, "the Bulletin"], which provides that seats reserved
for the SC and ST categories would be filled only by candidates
belonging to the respective categories, and would be
interchangeable inter se, but would remain vacant if they still
remained unfilled. He referred to a Division Bench judgment of
this Court in Shri Ram College of Commerce vs. Sahil and
Others13, wherein a similar clause in a circular issued by the
University dated 22.05.2014 relating to undergraduate
admissions was held to preclude admission of the petitioner-
candidates therein to unfilled seats in the SC/ST category.
(b) As far as the EWS category is concerned, Mr. Rupal submitted
that even if there remained any unfilled seats in the EWS
category, those could not be reverted to the UR category as
there were eligible EWS category candidates whose candidature
would be required to be considered against those vacancies in
priority to the candidature of the petitioners herein. In fact,
Mr. Rupal submitted that there are three writ petitions pending
in this Court in which EWS candidates seeking admission to the
269 (2020) DLT 41[LPA 752/2019 decided on 01.05.2020] [paragraph 24]
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LL.B. course in the same academic year have sought relief in
their favour.
(c) As far as supernumerary seats are concerned [including foreign
students, children and wards of defence personnel and PWD
category], Mr. Rupal submitted that the Prospectus provides
that, if such seats are left vacant, they could not be offered to
candidates in any other category.
On this analysis, Mr. Rupal submitted that, even if seats in any
category other than the UR category are found to have remained
vacant, the petitioners are not entitled to the relief of admission against
those vacancies.
25. Mr. Rupal distinguished the order dated 11.09.2017 in Manmeet
Kaur Sareen14 cited by Mr. Talwar, on the basis that, in that case,
there does not appear to have been any restrictive stipulation
prohibiting the offer of vacant seats to UR category students. Relying
upon Shri Ram College of Commerce15, Mr. Rupal urged that the order
in Manmeet Kaur Sareen16 would not apply when the Bulletin itself
contains a contrary stipulation. In any event, Mr. Rupal drew my
attention to the final order dated 21.11.2017 passed in Manmeet Kaur
Sareen17, wherein it is recorded that during the pendency of the writ
petition, the University had granted admission to candidates in the
General category who had scored between 230 and 234 marks. The
Supra (note 3)
Supra (note 13)
16 Supra (note 3)
17 Supra (note 3)
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petitioner therein, having scored 231 marks, had therefore been
granted admission on her merit and rank in the General category. In
the final order, therefore, it was recorded that the prayer of the
petitioner therein stood satisfied.
26. Mr. Rupal distinguished the judgment in Saumya Chopra18 by
reference to paragraphs 7, 18, 21, 22 and 24 thereof. He submitted that
the relief in that case was premised upon the fact that the petitioners
would have succeeded in obtaining admission if the alleged
irregularities in the admissions process had not been committed. In the
present case, in contrast, he submitted that 156 unsuccessful UR
category candidates secured marks higher than the score claimed by
Ms. Vidhi Uppal, i.e. between 221 and 225 marks19. In fact, he stated
that 15 candidates who secured the cut-off score of 225 marks were
also not granted admission. Between the score of 209 marks [attained
by Mr. Abrol] and 225 marks, there were, in fact, 882 candidates who
were not granted admission. In the peculiar circumstances prevalent in
2020, the UGC had directed the University to complete all admissions
for the session 2020-2021 by 31.12.2020, and on that date all seats in
the UR category had been filled. According to Mr. Rupal, Saumya
Chopra20 does not dilute the legal principle that vacant seats cannot be
filled mid-session as a matter of right.
Supra (note 4)
Ms. Vidhi Uppal's score, as declared, was 216 marks. Her score would increase to 221
marks if she is granted 5 additional marks as a result of an incorrect question, as claimed by
her.
20 Supra (note 4)
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27. Mr. Rupal submitted that the matter at hand is, in fact, covered
by the legal principles enunciated by the Full Bench in Dr. Sandhya
Kabra and Others vs. University of Delhi21. He submitted, relying
upon paragraph 45 thereof, that relief cannot be confined to the
petitioners who have approached this Court. Mr. Rupal also drew my
attention to paragraphs 69 and 70 of the Full Bench decision, wherein
it has been held that the perception of hardship by candidates who are
denied admission despite availability of vacant seats is not dispositive
of the matter. The Full Bench has cautioned that, in the absence of
finding any arbitrariness, educational policy is a matter best left to
experts and the Court cannot normally direct filling up of vacant seats
after the commencement of the academic year, at least not as a matter
of right. He pointed out that the view of the Punjab and Haryana High
Court in Sumedha Kalia22, which was cited by Mr. Abrol, has been
expressly disapproved by the Full Bench of this Court.
28. The aforesaid decision of the Full Bench has been referred to in
the judgment of the Supreme Court in Santosh Kumari vs. Union of
India and Others23 in respect of the question of unfilled all India seats
in medical colleges. In the aforesaid judgment, the Supreme Court has
also distinguished the judgment in Ashok24, cited by Mr. Talwar.
29. With respect to the judgment of the Supreme Court in Index
Medical College25, Mr. Rupal submitted that the Court was concerned
(1992) SCC Online Del 420 [Civil Writ No. 1657/1992 decided on 07.09.1992]
22 Supra (note 11)
23 (1995) 1 SCC 269
24 Supra (note 5)
25 Supra (note 10)
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with a challenge to Rule 12(8)(a) of the Admission Rules (Madhya
Pradesh Chikitsa Shiksha Pravesh Niyam), 2018. It is in the context of
a challenge to the constitutional validity of the Rule itself that the
Court observed that the prohibition on filling up of vacant seats was
not related to the avowed objective of ensuring objectivity in the
admissions process.
30. In support of his contention that a further round of counselling
was not warranted in the facts and circumstances of this case,
Mr. Rupal relied upon the Division Bench judgment in Maharaja
Agrasen Institute of Technology vs. Guru Gobind Singh Indraprastha
University26, and the judgment of a Coordinate Bench in Saubhagya
Dua vs. Union of India and Others27. Mr. Chhibber also referred in
this connection to two judgments of this Court - Shefali Shukla vs.
University of Delhi and Another28 and Vansh Saroa vs. Vice-
Chancellor, University of Delhi and Others29 - to submit that the
Court will not pass a direction to fill seats which have become vacant
as a result of cancellations after the close of admissions.
31. In rejoinder, Mr. Talwar submitted that the relief sought by the
petitioners in the UR category can be granted without affecting the
rights of the EWS category candidates. He reiterated his contention
that there are sufficient seats vacant in the EWS and/or UR category at
present. According to him, the seven vacancies in the EWS category
26 LPA 952/2004 decided on 16.11.2004 [paragraphs 37 and 38]
W.P.(C) 8303/2019 decided on 13.08.2019
28 W.P.(C) 1330/2021 decided on 02.02.2021
29 W.P.(C) 860/2021 decided on 15.02.2021
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admitted by the University, and the two EWS candidates who were
subsequently granted admission in the UR category, accounted for
nine vacant seats in the EWS category. He contended that in the three
writ petitions filed by the EWS category candidates, there are a total
of five petitioners who can be accommodated, in addition to the three
petitioners in the present batch of petitions. Mr. Talwar submitted that
the petitioners in the cases related to the EWS category admissions, in
fact, seek increase in the number of reserved seats, and the petitions
are not directed only at admissions being granted in favour of those
petitioners. However, he conceded that these arguments proceed on
the basis that the Court may grant admission only to those candidates
who have come to the Court, without reference to the other candidates
in the same category. Mr. Talwar reiterated his submission that,
subject to the cut-off date, no seat should go waste. He, therefore,
submitted that, if fresh counselling is ordered for the EWS category
seats, then it can also be granted for the purpose of the UR category.
32. Mr. Talwar sought to distinguish the judgment of the Supreme
Court in Santosh Kumari30 on the ground that the appellant therein
was not a party to the writ petition before the High Court. He
submitted that the present case is closer on facts to the judgment in
Ashok31 than to the ratio of Santosh Kumari32.
33. Mr. Mukesh Kumar, learned counsel, appeared on behalf of the
intervenors who have filed writ petitions in respect of the EWS
Supra (note 23)
Supra (note 5)
32 Supra (note 23)
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category reservation. He submitted that the relief sought in those
petitions did not relate to the admission of the petitioners therein only
because they were filed prior to the admissions being complete. Mr.
Kumar opposed the grant of admission against those seats to the
petitioners herein, who applied in the UR category, on the ground that
unsuccessful EWS category candidates, such as the intervenors, have a
higher claim to admissions against those vacancies.
D. Analysis
34. As detailed above, learned counsel for the parties raised several
contentious arguments with regard to the process undertaken by the
University, and the validity of the manner in which seats were
allocated in each category. The principal allegation pressed on behalf
of the petitioners in this regard, however, does not pertain per se to
admissions in the UR category in which they had applied, but to
vacancies in the SC, ST and EWS categories which they contend
should have been passed on to the UR category candidates.
35. As far as the UR category is concerned, a few factual elements
may be noticed. The petitioners scored 216, 209 and 203 marks in the
entrance test. Ms. Vidhi Uppal challenged the answer key in respect of
one question [Question ID 8394]. Assuming that her grievances with
regard to this question are correct, she would have scored an
additional five marks, i.e. bringing her score up to 221 marks33. The
University's position is that no candidate has been admitted in the UR
It is undisputed that the difference between a wrong answer and a right answer is five
marks, as a wrong answer would have been penalized with a deduction of one mark, whereas
a correct answer would be awarded four marks.
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category below 225 marks. In fact, the University stated that there are
15 candidates who scored 225 marks who were also not admitted.
Although some controversy was initially raised on this account, that
was on the basis of a Seat Allocation List, which dealt with the
allocation of admitted candidates to various centres of the Law
Faculty, and not on the basis of the Admission List itself.
36. The only grievance directly relating to the UR category
admissions concerns two candidates - Aalok Singh and Ritabrata
Mitra. Mr. Talwar has referred me to the charts placed on record by
the University to submit that these two candidates were admitted after
the close of admissions on 31.12.2020 by recourse to the GRM. The
implication, according to Mr. Talwar, is that two seats remained
unoffered in the UR category. He submitted that, although these
candidates were offered admission in the first and the second lists,
they did not pay the fees within the stipulated time and their seats
ought to have been treated as vacant. I am of the view that this
contention cannot be accepted in view of the stand of the University in
its affidavits dated 19.05.2021 and 24.05.2021, that the grievances of
these candidates had been submitted prior to the deadline of
31.01.2021 and both qualified on merit. In a dynamic process of
admissions, a situation may arise where certain seats are offered to
meritorious candidates who have been erroneously denied admission.
As long as the candidates who were admitted pursuant to the GRM
were otherwise qualified on merit for admission, and the admissions
were carried out in terms of the transparent grievance redressal
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procedure, which was available to all candidates, I cannot accept Mr.
Talwar's contention that this reveals an irregularity in the procedure
warranting the interference of the writ court.
37. The next question is whether the vacant seats in any other
category, particularly the ST and EWS categories, were liable to be
transferred to the UR category.
38. As far as the ST category seats are concerned, Mr. Rupal relied
upon Clause 2.4.1 of the Bulletin, which provides as follows:
"2.4.1 The seats reserved for the SC / ST shall be filled
by the SC / ST candidates only. However, in the case of
non-availability of the eligible candidates the reserved
seats may be interchanged between the SC & ST. If any
seat still remains unfilled, the same shall be left vacant."
The stipulation in the Bulletin is clear: unfilled ST category seats
could be transferred only to the SC category, and not to any other
category for admission. It is not possible to accept the petitioners'
contention in the face of such an express provision in the Bulletin. The
judgment of this Court in Shri Ram College of Commerce34, cited by
Mr. Rupal, upholds a similar stipulation with regard to undergraduate
admissions for the academic year 2019-2020. Paragraph 24 of the said
judgment reads as follows:
"24. We also find merit in the submission made by
learned counsel for the appellant/SRCC that the
respondents No.1-3/students could not be given
admission in the left over seats in the subject course in
the light of the Circular dated 22.5.2014, issued by the
34 Supra (note 13)
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respondent No.4/University that lays down the Guidelines
for admission to various undergraduate and postgraduate
courses and stipulates in para 3 that "The seats reserved
for the SC/ST shall be filled by the SC/ST candidates
only. However, in the case of non-availability of the
eligible candidates the reserved seats may be
interchanged between the SC & ST. It still any seat
remains unfilled, the same shall be left vacant.". In view
of the aforesaid condition, respondents No.1-3/students,
who belong to the OBC/NCL category, could not have
been granted admission even if there were vacant seats in
the SC/ST category. For the aforesaid reason, reliance on
the judgments in Miss Asha Kumari vs. The Rajendra
Agricultural University & Ors., reported as AIR 1997
Pat 102 and Hari Singh Nalwa Trust (Regd.) and Ors. vs.
State of Haryana and Ors., reported as 2014 SCC
OnLine P&H 20880, is misplaced and cannot strengthen
the case of the respondents No.1-3/students as in those
cases, there is no reference to any circular of the nature
issued by the respondent No.4/University."
39. Similar considerations apply to the supernumerary seats
[foreign nationals, children and wards of defence personnel and PWD
categories] as well. Such seats are stated in the Prospectus to be non-
transferable to any other category. A section of the Prospectus entitled
'Counselling for LL.B./LL.M. Admission'35 in this regard provides as
follows:
"Supernumerary seats, if vacant, shall not be offered to
any candidate from any other category."
40. I now turn to the EWS category. As far as this category is
concerned, the written submissions filed by the University state as
follows:
Page 50 of W.P.(C) 756/2021
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"O) In the EWS Category List there are a total of 117
seats in the EWS category which got filled up initially.
There were 7 vacant seats available in this category on
31/12/20 which had gone unnoticed by the Admission
Committee due to an inadvertent technical error/glitch
reflected in the EWS list on the portal maintained by the
DUCC as it showed the total EWS admissions as 124.
The actual admissions were110 with 7 seats vacant which
was reflected as 124 admissions on the portal. The fault
was noticed by the Admission Committee after the closing
date of admissions."
41. The position that there were certain vacant seats which
remained unoffered in the EWS category is therefore undisputed. The
question, however, is whether these seats should have been offered to
the UR category. The petitioners' case in this regard is based
principally on three decisions - those of this Court in Manmeet Kaur
Sareen36 and Saumya Chopra37, and of the Supreme Court in Ashok38.
42. As far as Manmeet Kaur Sareen39 is concerned, the petitioners
have relied upon an interim order dated 11.09.2017. The order deals
with admissions to the LL.B. course in the University in the year
2017. Relying upon the judgment of the Karnataka High Court in
M. Shravana Kumar40 and the judgment of the Supreme Court in State
of Orissa and Another vs. Dr. Asim Kumar Mohanty and Others41, this
Court observed as follows:-
Supra (note 3)
Supra (note 4)
38 Supra (note 5)
39 Supra (note 3)
40 Supra (note 7)
41 (1989) 3 SCC 549
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"The ends of justice would definitely not be served if
available seats in educational institutions are allowed to
go waste; this could also not have been the intention of
the educational legislators; admitted position being that
these seats would continue to remain vacant as they
would not be carried forward to the next year. This would
be a denial of opportunity to an otherwise meritorious
student. In fact in the judgment of the Karnataka Bench
even where the vacancies in the scheduled Castes and
scheduled Tribes could be carried forward, the Court had
thought it fit to transfer those seats to the general
category.
Petitioner has applied for her choice in Law Centre-2.
There are 8 vacant seats in that centre; 7 seats in the
Scheduled Tribes category and 1 seat in the Foreign
National category.
The petitioner be granted admission in any of the
aforenoted 8 vacant seats. A writ of mandamus is issued
accordingly to enforce the aforenoted directions.
Application disposed of."
The writ petition was ultimately disposed of by an order dated
21.11.2017, which proceeds on an entirely different basis, in view of
certain developments that had taken place in the interregnum. The
order dated 21.11.2017 records that the University had, in the course
of related litigation, admitted the petitioner on her own merits, in view
of an increase in the number of seats during the pendency of the
petition. In view of this position, I am of the view that the petitioners'
reliance upon the interim order dated 11.09.2017 is misplaced. The
said order also cannot assist the petitioners with regard to transfer of
the unfilled ST category seats, as it does not deal with a case where
there was an express condition in the Information Bulletin to the
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contrary. The present case is directly covered by the Division Bench
decision in Shri Ram College of Commerce42.
43. In the course of argument, Mr. Talwar submitted that reliance
upon the judgment in Saumya Chopra43 was limited to showing that
the Court can grant relief only to the petitioners before the Court
without reference to other candidates44. However, it is evident from
paragraph 7 of the said judgment that the petitioners therein came
within the next 35 students in the General category after the last
student who had been admitted. Their grievance related to admissions
having been granted to 35 students who had not appeared in the
counselling despite being admitted in the earlier admission list. The
Court formulated the factual position in the following terms:
"7. All the students belonging to the General Category,
in this batch of writ petitions, claim to come within the
next 35 students, after the last student who was
admitted, namely Aashi Garg, with 222 marks. Had,
therefore, 35 students, who had earlier been included in
the first three Admission Lists, and who had not turned
up for counselling, not been given a second chance, to
figure in the fourth and the fifth Admission Lists, 35 more
general category students, who had cleared the entrance
examination, would have had a chance for admission to
the LL.B. course conducted by the University. These 35
students, therefore, it is contended, were denied the right
to secure such admission only because of the illegal act,
of the University, in giving a second chance to students
Supra (note 13)
Supra (note 4)
44 Although an appeal against the judgment of the learned Single Judge in Saumya Chopra
[LPA 37/2019] was dismissed by an order dated 02.04.2019, this point was not discussed in
the Division Bench decision.
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whose names had already figured in the first three
Admission Lists, contrary, as they would contend, to the
afore-extracted Clause (iii) of the Admission Bulletin
issued by the University".45
44. The records of the present cases do not reveal an analogous
position. Even accepting Ms. Vidhi Uppal's argument with regard to
an incorrect question in the entrance examination, there are a number
of candidates who would be entitled to admission before any of the
petitioners. The factual position stated by Mr. Rupal in this regard, as
recorded above, has not been controverted. Unlike Saumya Chopra46,
therefore, there would be meritorious candidates who would be denied
their due if the Court were to grant relief to the petitioners alone.
45. The judgment of the Supreme Court in Ashok47, relied upon by
Mr. Talwar, arose in the context of appointments to the post of
Assistant Engineers in the Public Works Department of the State of
Karnataka. The Supreme Court directed the State Government to grant
relief only to the candidates who had approached Karnataka
Administrative Tribunal:-
"3. We, therefore, allow the appeal and direct the
respondents to give appointment to the appellant Ashok
alias Somanna Gowda on the post of Assistant Engineer
(Civil) and appellant Rajendra on the post of Assistant
Engineer (Mech.) in Public Works Department within a
period of two months of the communication of this order
in case the appellants are found suitable in all other
respects according to the Rules. Learned counsel
Emphasis supplied.
Supra (note 4)
47 Supra (note 5)
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appearing on behalf of the State of Karnataka pointed out
that there are many other candidates who had secured
much higher marks than the appellants in case the above
criteria is applied for selection. In view of the fact that
appointments under the impugned Rules were made as
back as in 1987 and only the present appellants had
approached the Tribunal for relief, the case of other
candidates cannot be considered as they never
approached for redress within reasonable time. We are
thus inclined to grant relief only to the present
appellants who were vigilant in making grievance and
approaching the Tribunal in time. Learned counsel for
the State also submitted that the State Government had
already framed new rules, and as such we do not find it
necessary to quash the Rules under which the present
selections were made as they are no longer in existence.
No order as to costs. "48
46. However, the Supreme Court itself has commented upon the
aforesaid judgment in Santosh Kumari49 and confined its applicability
to the facts and circumstances of that case. In Santosh Kumari50, the
Court made it clear that the allotment of seats should go according to
merit and cannot depend upon who comes to court and who does not.
Paragraph 8 of the judgment reads as follows:
"8. The third respondent who appeared in-person and
we must say, she put forward her case with admirable
clarity and grace - submitted that inasmuch as none of
the said six candidates including Dr. Vibha Aggarwal
and Dr. Shiv Prasad Aggarwal have chosen to approach
the Court complaining of their non-admission, they
should not be considered for admission against the said
Emphasis supplied.
Supra (note 23)
50 Supra (note 23)
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seat and that she, who had approached the Court at the
earliest possible moment, should be admitted to that seat.
She relied upon the decision of this Court in Shri Ashok
alias Somanna Gowda and Anr. V. State of Karnataka
J.T.1991 (4). 160 in support of the said submission. It is
not possible to agree. The allotment of seats should go
according to merit. It does not depend upon who comes
to Court and who does not. The matter is one of
principle and should not depend upon who comes to the
court. A more deserving candidate may not have the
means to approach the court. Be that as it may, even the
Division Bench of the Rajasthan High Court has not
directed that the said seat should be given to the third
respondent (appellant before them). On the other hand,
they have directed the official respondents to "consider
the candidature of the petitioner (third respondent in this
appeal) or any other candidate who may deserve the
admission to that said post," The Division Bench has
further directed that "proper notice on the Notice Board
may be affixed by the respondents. In all the colleges
giving 15 days time for making applications and the said
seat may be allotted to the meritorious candidate". It is in
pursuance of this direction that notices were sent to six
candidates referred to above. The submission of the third
respondent cannot, therefore, be accepted. The direction
made in Ashok alias Somanna Gowda related to
selection to the post of Engineers and was made in the
particular facts and circumstances of that case. The
direction made therein cannot be treated to be one of
general application. As stated hereinabove, there are not
only six candidates above the third respondent in the
merit list but two of them have indicated their willingness
to be admitted against the said vacancy."51
47. The three judgments relied upon by the petitioners do not
therefore make out the case that they are entitled to be admitted
51 Emphasis supplied.
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against the vacancies which may have remained unfilled in the EWS
category - that too, to the exclusion of other candidates in the UR
category. Further, the factual situation shows that eligible EWS
category candidates, who had not been granted admission, were also
available. To ignore their claim and transfer the vacant seats to the UR
category would defeat the purpose of the reservation.
48. The next argument to be considered is whether the University
ought to be directed to hold a fresh round of counselling to fill all the
unfilled seats at this stage. For the reasons mentioned above, the
petitioners' case in this regard can only be considered with respect to
vacancies which have arisen in the UR category. These vacancies have
arisen after the close of admissions. Mr. Rupal rightly pointed out that
even in Saumya Chopra52, the Court accepted that no candidate could
claim admission on the basis of the vacancies arising after the cut-off
date. In paragraph 18, the Court observed as follows:
"18. In view of the above, it becomes unnecessary to
address the submission, of Mr. Rupal, that no candidate
had a vested right to claim admission merely because
seats remained vacant even after the cut-off date for
effecting admissions. To that proposition, there can
possibly be no cavil. The case of the petitioners is not,
however, required to be pitched so high as, in their
submission, had the "no show" candidates of the first
three Admission Lists, not been granted a second chance
in the fourth, and the fifth Admission Lists, the petitioners
would have secured admission, given their merit
position."
52 Supra (note 4)
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49. In fact, the Court relied upon the judgment in Neelu Arora vs.
Union of India53 wherein the Supreme Court cautioned against
directing for further rounds of counselling merely because seats
remained unfilled.
50. This position is also evident from the Division Bench decision
in Maharaja Agrasen Institute of Technology54, which reads as
follows:
"37. If one keeps above observations in mind, it would
be apparent that the system of counseling itself is
designed to maximize allocation of seats in various
institutions. However, that cannot imply that the process
is endless; it has a definite terming quo in point of time.
In the present case, the date of commencement of classes
was 02.08.2004 in spite of this, the second round of
counselling was envisaged and that terminated on
28.08.2004. This fact is essential while considering the
challenge to the reasonableness of the impugned
condition. It shows that outer limit acceptability of a
student's absence from class after they commenced in the
first term was about four weeks.
38. Another aspect of the matter is that the prohibition
from filling vacant seats after the second counselling,
appears to be dictated by certain policy considerations.
The permissibility of a further round would mean that
there would be further drops outs from other
institutions leading to complaints by them and
uncertainty in the admission process, as described in the
judgment quoted above. Such an uncertainty at the
commencement of the academic year itself, in our
opinion, is unacceptable."55
(2003) 3 SCC 366
Supra (note 26)
55 Emphasis supplied.
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51. In Saubhagya Dua56 also, a Coordinate Bench of this Court has
denied a plea for further rounds of counselling in the face of seats
remaining vacant. To similar effect are the judgments of this Court in
Shefali Shukla57 and Vansh Saroa58.
52. In Santosh Kumari59, the Court also referred to the Full Bench
judgment of this Court in Dr. Sandhya Kabra60. The observations of
the Full Bench in paragraphs 45 and 70 are relevant to the
determination of the present petitions also:
"45. One other contention raised by Sh. Mariaputham, on
behalf of the respondent, was that the petitioner in any
case cannot be allowed change of subject for the simple
reason that there are candidates in the merit list who are
senior to her and had also opted for the same subjects
namely, M.D. (Paediatrics) and M.D. (Medicine). In this
connection the learned counsel relied upon the decision
of the Supreme Court in the case of State of
Kerala v. T.P. Roshana, 1979 (1) SCC 572. This case was
concerned with admission to Medical Colleges and at
page 589, it was observed by the Supreme Court that the
selection of the students to whom relief was to be given
was not to be confined to those who have moved the
Supreme Court or the High Court because "The
measure is academic excellence, not litigative
persistence. It will be thrown open to the first 30, strictly
according to merit measured by marks secured".
xxxx xxxx xxxx
Supra (note 27)
57 Supra (note 28)
58 Supra (note 29)
59 Supra (note 23)
60 Supra (note 21)
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70. Before concluding, reference may usefully be made to
the observations of the Supreme Court in Dr. Ajay
Pradhan's case (supra) wherein it has been held that
there is no question of a right of admission to a seat
falling vacant in the midst, or towards the end of, the
academic session. The Court, of course, held that
normally the question of a seat being filled up must arise
at the commencement of the academic year or soon
thereafter which means that if some drop outs are there,
then candidates may be selected from the waiting list but
such admission in the midst or towards the end of the
academic year is not by way of a right."61
53. For the reasons aforesaid, I am of the view that the petitioners
are not entitled to a direction securing their admissions to the LL.B.
course for the 2020-21 session. As far as their category (UR) is
concerned, the position is that no candidate who had secured less than
225 marks in the entrance examination has been granted admission.
On the point of vacancies, I am of the view that the University has
answered the allegations of the petitioners satisfactorily. The
petitioners are not entitled to admission against vacant seats in other
categories, both for the reason that those seats were not liable to be
transferred to the UR category, and because the petitioners' claim of
admission in priority to other UR category candidates who had
secured higher marks than them cannot be accepted. As the present
vacancies in the UR category are a consequence of post-admission
cancellations, I am also not inclined to direct a further round of
counselling to be conducted at this stage.
61 Emphasis supplied.
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E. Conclusion
54. In view of the above, I am unable to grant any relief to the
petitioners in these writ petitions, which are accordingly dismissed,
alongwith the pending applications. There will be no order as to costs.
PRATEEK JALAN, J.
MARCH 07, 2022
'hkaur'/
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