* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 19th November, 2010
% Judgment Pronounced on: 7th January, 2011
+ LPA No.820/2010
GGSIP UNIVERSITY
THROUGH ITS REGISTRAR ..... Petitioner
Through: Mr. Mukul Talwar with
Mr. Sradhananda Mohapatra, Advs.
versus
DHRUV SINGHAL & ANR. ..... Respondents
Through Mr. Ravi Gupta, Sr. Advocate with
Mr. Swastik Singh, Sr. Advocate with
Mr. Swastik Singh, Advocate for
Respondent No.1.
Mr. Lalit Kumar, Advocate for
Respondent No.2.
LPA No.822/2010
GGSIP UNIVERSITY
THROUGH ITS REGISTRAR ..... Petitioner
Through: Mr. Mukul Talwar with
Mr. Sradhananda Mohapatra, Advs.
versus
SHRISHTI CHANDOK & ANR. ..... Respondents
Through Mr. Ravi Gupta, Sr. Advocate with
Mr. Swastik Singh, Sr. Advocate with
Mr. Swastik Singh, Advocate for
Respondent No.1.
Mr. Lalit Kumar, Advocate for
Respondent No.2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
LPA Nos.820/2010 & 822/2010 Page 1 of 13
DIPAK MISRA, CJ
In these intra-Court appeals preferred under Clause 10 of the Letters
Patent, the challenge is to the composite order dated 18th October, 2010
passed by the learned Single Judge in WP(C) No.6641/2010 and WP(C)
No.6896/2010 and the common order dated 15th November, 2010 passed in
R.P. No.459/2010 and R.P. No.457/2010. Regard being had to the
similitude of the controversy involved, the facts in WP(C) No.6641/2010 are
exposited herein.
2. The respondent No.1 to the present appeal invoked the extraordinary
jurisdiction of this Court under Article 226 of the Constitution of India
stating, inter alia, that he had appeared in the Common Entrance Test (CET)
conducted by the appellant – University on 5th June, 2010 for admission to
Engineering & B.Tech programmes in the Institutes / Colleges of the
appellant – University as well as its affiliates. The respondent No.1 secured
the rank of 15070 in the merit list. As per the admission brochure published
by the appellant – University, the admission process was required to be
completed by 30th September, 2010 but the second round of counselling for
admission in the Respondent No.2, i.e., Maharaja Agarasen Institute of
Technology (MAIT), an Institute / College affiliated to the University,
commenced only on 13th September, 2010 and was stated to be continuing at
the time of filing of the petition on 28th September, 2010. It was contended
LPA Nos.820/2010 & 822/2010 Page 2 of 13
that certain colleges applied to the University for filling up the vacant seats
even after the conclusion of the second counselling by 30 th September, 2010.
The respondent No.1 approached MAIT and was informed that there were
still 11 vacant seats either on account of students who had not joined inspite
of taking admission or on account of seats not filled up by the University.
Despite the same, the University did not admit the respondent No.1 to the
MAIT. In that backdrop, the writ petition was filed to issue an appropriate
writ to the University to admit him to the B.Tech in MAIT in the academic
year 2010-2011. When the matter was taken up on 29th September, 2010 by
the learned Single Judge, a stand was put forth by the college that seats were
vacant and a stance was set forth by the University that six seats of the
Scheduled Tribe (ST) category were not put to counselling till then. It was
also stated that as per the Rules, if the said seats remained vacant, they were
to be offered next to the Scheduled Castes (SC) category candidates and if
still some seats remained vacant, they were to be offered to the General
category candidates. It was urged that in the General category candidates,
the respondent No.1 was placed in the rank of 15070 and, hence, was
unlikely to be admitted in that category. It was brought to the notice of the
learned Single Judge that the University was considering counselling for
ST/SC category on 30th September, 2010 being the last date for admissions
as per the prospectus of the University and, accordingly, the matter was
adjourned with a direction to the University to put the said six seats for
LPA Nos.820/2010 & 822/2010 Page 3 of 13
counselling to ST/SC category on 30th September, 2010.
3. As revealed, out of the six seats, two for the ST category and four for
the Physically Handicapped (PH) category were put for counselling but no
ST category candidate turned up and the two ST category seats thus
devolved upon the SC category out of which only one could be filled up.
None of the four seats for the PH category could be filled up and,
accordingly, the said seats devolved upon the General category. It was
contended by the University that the seats could not be filled up after 30 th
September, 2010 in view of the decision in Mridul Dhar v. Union of India,
(2005) 2 SCC 65. In the counter affidavit, the University put the stand that
the ST and PH category seats could not be put to counselling earlier as per
the time schedule prescribed in the admission brochure owing to the
recognition of the MAIT having been earlier revoked by the All India
Council for Teacher Education (AICTE) and MAIT having joined in the
counselling late by which time the counselling for the ST and PH category
was already over.
4. A rejoinder affidavit was filed urging, inter alia, that the delay in
admission would not interfere with the schedule of studies and the admission
brochure did not affect the B.Tech course.
5. The learned Single Judge appreciating the pleadings brought on
LPA Nos.820/2010 & 822/2010 Page 4 of 13
record and the submissions canvassed at the Bar came to hold as follows:
“15. The University when had allowed MAIT to join
the counselling on 13th September, 2010 and when held
counselling for admission thereto on 13th September,
2010, ought to have held the counselling for the two
ST category & four PH category seats also. The
th
University, before this Court on 29 September, 2010
admitted that it was itself even then considering
counselling for the said seats. Thus, the delay between
13th September, 2010 and 29th September, 2010 in
holding counselling for the said seats is attributable
squarely to the University. Had the University held
the counselling for the said seats on 13 th September,
2010 itself as it ultimately did on 30th September, 2010,
upon the said seats remaining vacant, the same would
have devolved to the General Category well before the
prescribed last date of 30th September, 2010. However,
there is no explanation whatsoever in this regard.”6. After so stating, the learned Single Judge repelled the submission of
the University that if it is to allow admission to the five seats, it would have
cascading effect. The learned Single Judge referred to the decision in Dr.
Manish Patnecha v. Chairperson, Counselling Committee, AIIMS decided
on 10th December, 2009 in LPA No.622/2009 wherein it was held that the
appellant therein was entitled to admission in the next academic year as he
was entitled to admission in the current session and, accordingly, directed
that the relief of admission be extended to him.
7. Be it noted, the learned Single Judge in WP(C) No.6896/2010 has
observed that though the writ petitioner had approached the court after 30th
September, 2010, yet it was expedient to extend the relief to him. After so
LPA Nos.820/2010 & 822/2010 Page 5 of 13
holding, he further came to hold that the seats should not go waste and theUniversity shall make appropriate provision for admission to all the seats
within one week from the date of receipt of the order. The learned Single
Judge further gave a justification that he has taken the said view regard
being had to the factum that the seats had not been put to counselling /
admission at all and would not apply to the cases of vacancies occurring
after the admission had been made.
8. Be it noted, the applications for review filed before the writ court
faced rejection by order dated 15th November, 2010.
9. We have heard Mr. Mukul Talwar, learned counsel for the appellant,
Mr. Ravi Gupta, learned senior counsel for the respondent No.1 and Mr.
Lalit Kumar, learned counsel for the respondent No.2.
10. It is submitted by Mr. Talwar that on 30th September, 2010, the
University had attempted to conduct a counselling session for the six seats
but no counselling for the said seats could be held as out of the two ST seats,
one was in the State quota and the other was for the All India category and
no candidate turned up for counselling in this category even though a notice
had been posted on the website of the University on 29 th September, 2010
itself and, hence, the seats were converted to SC seats but even then only
one seat could be filled up. It is urged by him that the University had
LPA Nos.820/2010 & 822/2010 Page 6 of 13
received 15 number of applications from various candidates who hadqualified in the CET of the B.Tech course but had been unable to get
admission in the respondent No.2 Institute and from the said applications it
is clearly vivid that at least 9 of these students had better rank in the CET as
compared to the writ petitioner. It is his submission that if the direction of
the learned Single Judge is complied with, it would tantamount to ignoring
the merit of the candidates and the students who are lower in the rank would
only get the benefit which is not permissible.
11. The learned counsel for the respondent No.1 submitted that the order
passed by the learned Single Judge cannot be found fault with inasmuch as
counselling should have been held for the General category and the
University had not offered any explanation for the same. It is urged by them
that the candidates who are not vigilant cannot get the benefit whereas the
respondent immediately approached the court and, therefore, were entitled to
get the admission. To bolster his submission, he has placed reliance upon
the decisions rendered in U.P. Jal Nigam and another v. Jaswant Singh
and another, (2006) 11 SCC 464, Vikram Dhillon v. State of Haryana and
others, (2007) 9 SCC 408 and the decision rendered in Surender Singh and
another v. DSSSB and others in LPA No.65/2008 decided on 3rd
November, 2008.
12. To appreciate the rival submissions raised at the bar, we have
LPA Nos.820/2010 & 822/2010 Page 7 of 13
carefully perused the material brought on record and the findings recordedby the learned Single Judge. It is worth noting that the factual position is not
disputed. The question that emanates for consideration is whether the
respondents could have been extended the benefit of admission solely
because they approached the Court despite the fact that the persons who
were more meritorious were not called for counselling and not extended the
benefit of admission. The learned Single Judge is correct in his finding that
had the University held the counselling for the seats on 13th September, 2010
which it did on 30th September, 2010, then the same would have devolved to
the General category well before the prescribed last date, i.e., 30th
September, 2010. It is also perceptible that he has taken note of the fact that
certain candidates in the General category were much higher in rank than the
writ petitioners. In U.P. Jal Nigam (supra), a two-Judge Bench of the
Apex Court had held that when the respondents therein had acquiesced in
accepting the retirement and did not challenge the same in time, the court
cannot come to the rescue of such persons when they themselves are guilty
of laches. In the said case, the Apex Court restricted the relief to the persons
who had filed the writ petitions when they were in service or who have
obtained interim order for their retirement. Their Lordships applied the
doctrine of delay and laches. Be it noted, in the said case, the employees
who retired attaining the age of 58 years long back approached the High
Court on the basis of a decision rendered in Harwindra Kumar v. Chief
LPA Nos.820/2010 & 822/2010 Page 8 of 13
Engineer, Karmik, (2005) 13 SCC 300 and the High Court granted relief tothem for continuing in service upto the age of 60 years. The Apex Court
took note of the plea canvassed by the Nigam about the financial burden to
the tune of Rs.17,80,43,108/- which would completely ruin the financial
condition of the Nigam. Taking these aspects into consideration, relief was
not granted. In our considered opinion, the case related to service benefits of
the employees who had gone into slumber and only woke up after a
judgment was delivered in favour of some other employees. The present one
is a case where the claim was for devolving of particular seats to the General
category. In this compartment, we are disposed to think that the concept of a
vigilant litigant or a non-vigilant litigant would not come into play as merit
would be the sole criteria. Thus, the decision in U.P. Jal Nigam (supra) is
distinguishable.
13. In the case of Vikram Dhillon (supra), the petitioner prayed for issue
of a mandamus commanding the State of Haryana and other state authorities
to grant admission to the petitioner in Bachelor of Dental Surgery (“BDS”,
for short) in open category in Government Dental College, Rohtak for the
academic year 2004-2005. Taking note of various facts, their Lordships
have held thus:
“25. So far as the factum of attendance at “second” and
“third” counselling is concerned, the fact has not been
denied. On the contrary, it is admitted by Respondent 9LPA Nos.820/2010 & 822/2010 Page 9 of 13
in his affidavit. But, the petitioner has not expressly and
unequivocally stated that he was present on 30.9.2004
when Respondent 6 Anusha Singh was granted
admission. According to Respondent 9, the petitioner was
not present. Up to 29.9.2004, no vacant seat was
available at Government Dental College, Rohtak. It was
only on 30.9.2004 that because of default in payment of
fee by three candidates, three vacancies were to be filled
in at Rohtak. According to Respondent 9, the seats were
filled by the candidates who were present on that day and
admission was granted to those students who were
eligible. Respondent 6, though she was at Sl. No. 442,
got admission as she was present.26. In our opinion, there is intrinsic evidence also
which goes to show that probably the petitioner was not
present on 30.9.2004. Admittedly, Respondent 6 Anusha
Singh was granted admission on 30.9.2006. It is the case
of the petitioner from the beginning that on or about
17.10.2004, the petitioner came to know that admission
was illegally granted to Respondent 6 though her rank
was 442 and rank of petitioner was 423. He, therefore,
submitted a representation on 19.10.2004. Had the
petitioner been present on 30.9.2004, he would have
objected to the admission of Respondent 6. Again he
would have immediately come to know about her
admission. In that case, he would have instantly
approached the authorities putting forward his claim, but
it was not done. In fact, a representation was made for the
first time after about 18 days stating therein that he came
to know on 17.10.2004 that admission was given to
Respondent 6 ignoring his legitimate claim. In the
circumstances, in our opinion, grant of admission to
Respondent 6 on 30.9.2004 cannot be cancelled at this
stage.41. Before closing the matter, we may observe one
thing more. As already noted earlier, as early as on
16.11.2005, when the matter was heard by this Court, a
grievance was made by the petitioner that though he was
higher in rank, admission was illegally given to
Respondent 6 who was lower in rank. It was a back-door
admission, sacrificing merit and was granted by Dr.
(Major General) Virendra Singh, Director of Pt. B.D.LPA Nos.820/2010 & 822/2010 Page 10 of 13
Sharma Postgraduate Institute of Medical Sciences,
Rohtak. The learned Counsel appearing for Respondents
1, 2 and 8 did not “seriously dispute the allegation about
the back-door admission having been granted to
Respondent 6 as alleged by the petitioner”. The Court
further observed:“Learned Counsel further states that, in fact, the
said Director had granted other similar admissions
as well and some enquiries are pending against
him.”
After so stating, their Lordships proceeded to observe as
follows:
“42. … It is the duty of the State Government to see not
only that the officers act in consonance with law, but also
to ensure that no injustice has been done to meritorious
students.”
14. In view of the facts in the said case, it is luminescent that the
legitimate claim of the meritorious candidate was ignored and someone
below the rank was given admission. The present case frescoes the reverse
position inasmuch as a less meritorious candidate seeks to march out the
more meritorious candidate. Thus, the ratio laid down therein is of no
assistance to the respondents.
15. A Division Bench of this Court in LPA No.657/2010 vide order dated
28.9.2010 distinguished the decision in Ashok Kumar Thakur v. Union of
India, (2008) 6 SCC 1 and expressed the view thus:
“Relying on the said judgment, an edifice is built that
when an individual comes to a Court of law, it isLPA Nos.820/2010 & 822/2010 Page 11 of 13
obligatory on the part of the Court to grant him relief and
not to the others even if they belong to the OBC category
as a class.
On a careful perusal of the aforesaid paragraph, we are
unable to appreciate the submission of Mr. Khan as the
Apex Court has not so stated.
What the learned Single Judge has stated that the writ
petitioner does not have indefeasible right to get admitted
in the OBC category but all are entitled to be considered
in the OBC category next in queue. The counseling
has taken place because of the enhancement of seats. In
our considered opinion, the direction given by the learned
Single Judge in this regard cannot be faulted with when
an individual comes and claims there should be
reservation under the Act in respect of the OBC category
and the Court accepts the submission, the benefit has to
flow in favour of the class. The students who had
participated in the examination and got higher ranks
could not get the benefit as the reservation was not fixed
by the University. When the reservation has been
directed to be fixed by the University in respect of a
particular college or an institution, there has to be
counseling in respect of all the candidates who were left
out and not only the appellant solely because he had
come to fight a common cause.
True it is, the said principle may not be applicable when
someone comes to fight for his seniority or promotion or
any other legal right but in a case of present nature, the
direction given by the learned Single Judge, in
our considered opinion, cannot be faulted with.”
16. In view of the aforesaid enunciation of law, we have no shadow of
doubt that the learned Single Judge is not justified in directing giving
admission to the respondents in both the writ petitions solely on the ground
that the seats should not go waste and they should be given admission.
LPA Nos.820/2010 & 822/2010 Page 12 of 13
17. Consequently, the appeals are allowed and the order passed by the
learned Single Judge is set aside. However, we direct that the University
shall follow the concept of reservation and the fall out of non-availability of
the reserved category candidates in a scrupulous manner from the next
academic year so that the seats shall not go waste. There shall be no order as
to costs.
CHIEF JUSTICE
MANMOHAN, J
JANUARY 7, 2011
dk
LPA Nos.820/2010 & 822/2010 Page 13 of 13