Pankaj Kumar vs Himachal Pradesh University And ...
2023 Latest Caselaw 17978 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                   CWP No. 5578 of 2023




                                                                       .
                                                   Decided on : 16.11.2023





      Pankaj Kumar                                                        ....Petitioner

                   Versus





      Himachal Pradesh University and another                          ...Respondents.
      Coram
      The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.





      Whether approved for reporting?1 Yes
      For the petitioner          :       M/s Aman Hansretta and Aditya
                      r                   Chauhan, Advocates.

      For the respondents         :       Mr. Nitin Thakur, Advocate.

      Ajay Mohan Goel, Judge              (Oral)

By way of this writ petition, the petitioner has

primarily prayed for the following reliefs:-

(i) That impugned notification dated

13.06.2023 issued by respondent No. 2 may

kindly be quashed and set aside.

(ii) That respondent No. 2 may kindly be

directed to enroll the petitioner in the Ph. D.

Tourism programme for the session 2022-

23."

2. Brief facts necessary for the adjudication of the

present petition are that the respondent-University issued an

1 Whether reporters of the local papers may be allowed to see the judgment?

Admission Notice dated 11th January, 2023, inviting online

applications for entrance test to Ph. D. Programme for the

.

session 2022-23, in the University Teaching Department/

Institutions. The eligibility criteria for entrance test was laid

down in the admission notice and the last date for filling the

application was 7th of February, 2023.

3. In addition to the 25 seats, which were advertised

in the Departments mentioned therein, there was a provision

of supernumerary seat(s), exclusively reserved for College

Teacher/School Lecturer, Ward of HPU Employee, H.P.

University Teacher, PwD. Foreign National Student.

4. The petitioner, who was otherwise eligible in terms

of the advertisement notice, applied for a seat of Ph.D

Tourism in the Department of Institute of Vocational Studies

under the category "Supernumerary seat for College Teacher/

School Lecturer". The petitioner applied under this category

on the strength of his presently serving as an Assistant

Lecturer in the Institution of Hotel Management, Catering and

Nutrition, Kufri, Shimla.

5. The petitioner is aggrieved by issuance of

Annexure P-11, communication dated 13.06.2023 under the

head Ph.D. Admission notice, which reads as under:-

"This is with reference to the admission notice dated 08/06/2023 regarding Ph.D programme in Tourism through entrance test for the session 2022-23 for one

.

supernumerary seat in the category of College teacher/School lecturer in the Institute of Vocational Studies, H.P. University. The result for the same was

withheld due to requirement of some clarifications. After receiving the required clarifications from the authorities, the Standing Committee decided against

filling the above mentioned one supernumerary sent under the category of College Teacher/School Lecturer as none of the Candidates were found eligible. r The Standing Committee also decided against

filling the other three supernumerary seats as none of the candidates obtained required qualifying marks in the entrance test."

6. Learned Counsel for the petitioner has submitted

that the decision of the respondent-University of not

admitting the petitioner in Ph.D. in Tourism in the Institute of

Vocational Studies by holding that no candidate was found

eligible under the category of supernumerary seats meant for

College Teacher/School Lecturer is bad in law because the

petitioner was eligible and denial of seat to him is totally

arbitrary. Accordingly, he has prayed that this notification

dated 13.06.2023 be set aside and a direction be issued to

the respondents to offer admission to the petitioner in the

Institute of Vocational Studies to undergo the Ph.D. Tourism

Programme.

.

7. During the pendency of this case, on 09.10.2023,

the following order was passed:-

"Learned counsel for the respondent-University

submits that reply to the petition has been filed.

Registry to place the same on record, if in order.

Rejoinder thereto, if any, be filed.

In the meanwhile, Ph.D supernumerary seats

in the subject of Ph.D Tourism shall not be offered to

any candidate by the respondent-University without

the leave of the Court. List on 16.10.2023."

8. Reply to the petition has been filed. The stand

taken by the respondent-University, justifying its act of not

offering the seat in issue to the petitioner is that the seat is

available for a candidate who is imparting education in a

School or College, affiliated to Himachal Pradesh University

only and as the teaching certificate, which has been produced

by the petitioner, is from the Institute of Hotel Management,

Kufri, H.P. which is not affiliated to Himachal Pradesh

University, therefore, Supernumerary seat which stood

advertised by the respondent-University, could not have been

offered to the petitioner. On this count alone, the candidature

of the petitioner has been rejected.

.

9. Learned Counsel for the University has also

referred to the documents appended with the reply, justifying

the stand of the University that the petitioner was rightly not

offered admission as the institution where he was imparting

education is not affiliated to the Himachal Pradesh University.

10. Having heard learned Counsel for the parties and

having carefully gone through the pleadings as well as

documents appended therewith, the act of the respondent-

University of denying admission to the petitioner in Ph.D.

Tourism in the Institute of Vocational Studies on the ground

mentioned above is nothing but arbitrary, discriminatory and

illegal.

11. First of all, it is not the case of the respondent-

University that the institution where the petitioner is

presently imparting education is a bogus institution or not a

recognized institution. It has not been disputed before this

Court that the Institute of Hotel Management, Kufri, where

the petitioner is imparting education for the last seven years

is run under the aegis of Ministry of Tourism, Government of

India.

12. Besides this, the admission notice dated

11.01.2023, does not contain any such caveat/rider against

.

the supernumerary seat that only those college

teacher/school lecturer would be eligible under the said

category, who are teaching in institutions affiliated with

Himachal Pradesh University. Therefore, when such condition

is not there in the admission notice, the act of the

respondent-University of rejecting the candidature of the

petitioner on a condition which was not part of the admission

notice, on the face of it, is arbitrary and discriminatory.

13. The documents appended with the reply which

have been relied upon by learned Counsel for the respondents

to justify their act are of no relevance for the reason that it is

settled law that rights of the parties cannot be decided by

placing reliance upon some internal communications, which

are not in public domain and not in the knowledge of the

affected party.

14. At this stage, it is relevant to mention that it is not

the case of the respondent-University that the petitioner is

either not fulfilling the eligibility criteria qua qualification or

experience for admission in the Ph.D. Programme. The denial

of admission to the petitioner is on the sole ground that the

institution wherein the petitioner is presently imparting

education is not affiliated to the respondent-University. As

already observed hereinabove, the rejection of the

.

candidature of the petitioner/non-consideration of the

candidature of the petitioner, on the basis of a condition,

which was not incorporated in the admission notice itself,

cannot be sustained in law.

15. Accordingly, this writ petition is allowed by

holding that the denial of admission to the petitioner against

Ph.D. Tourism programme on the ground that the institution

where the petitioner is imparting education is not affiliated to

the Himachal Pradesh University, is arbitrary, discriminatory

and not sustainable in the eyes of law. Annexure P-11 is

quashed and set aside. Respondent-University is directed to

grant admission to the petitioner in Ph.D. Tourism

Programme in the Institute of Vocational Studies under the

category of "Supernumerary seat" forthwith and not later

than 30th of November, 2023.

The petition stands disposed of in above terms, so

also pending miscellaneous application(s), if any. No order as

to costs.

                                                 (Ajay Mohan Goel)
    November 16, 2023                                    Judge
       (narender)