JUDGMENT
Cyriac Joseph, J.
(1) According to the petitioner she had passed her B.A. examination in the year 1982 from Lucknow University with 61.14% marks. She obtained M.A. degree from Lucknow University in the year 1984 with 59.04% However, owing to her family circumstances she could not pursue her studies further for a Ph.D. She got a job at Chetna Institute for Mentally Retarded Children, Aligarh in October 1985. She got married in November 1986 and two children were born to her, one in October 1987 and the other in October 1991. Though she was selected for L.T. Teachers Training (English Medium) for the session 1993-94 she could not continue the said programme due to the transfer of her husband. Her date of birth is 1-11-1963 and she has now completed 34 years of age. Pursuant to the prospectus released by the respondent University – Jamia Millia Islamia – the petitioner applied for admission to B.ED.. course as a general category candidate in the language group English for the session 1997-98. Her application was found to be in order and she was asked to appear in a written test held on 3-10-1997. She was also called for an interview on 13-10-1997. Based on the written test and the interview a merit list of general category candidates for the B.ED.. course (English Group) was published by the respondent University on 15-10-1997. The petitioner’s name appeared in the said merit list at serial No.2. However, against her name the following remarks were given:- “(13Yrs gap. overage 2 Yrs.) ARC.”
When the petitioner made enquiries with the office of the respondent, she was informed that her case had been referred to the Admission Review Committee of the respondent as there was a gap of 13 years between the last course attended by the petitioner and the present course and that she was overaged by two years as against the prescribed age of 33 years as on 1-10-1997. The petitioner met the Co-ordinator of admission Shri M.A. Siddiqui as well as Prof. Rias Shakir khan, Dean, Faculty of Education and explained to them that there was no requirement mentioned in the prospectus that candidates with a gap between the two courses would not be considered or would not be eligible for admission. She also informed them that she was 33 years and 11 months of age as on 1-10-1997 and that she was not overaged by two years as remarked in the merit list. She also explained that in accordance with the terms of the prospectus she was entitled to relaxation of age. However the respondent did not issue admission slip to the petitioner . Hence by Annexure B notice dated 20-10-1997 the petitioner called upon the respondent to grant her admission of the B.Ed. course. It is alleged that on receipt of the said notice Shri M.A.. Siddiqui, Co-ordinator of admission, approached the petitioner and assured her that she would be granted admission if she withdrew the notice. Believing the said representation and assurance given on behalf of the respondent the petitioner withdrew the notice. It is further alleged that the respondent went back on its assurance and refused to grant admission to the petitioner without even disclosing the reasons for such behaviour. The petitioner thereafter sent Annexure C notice dated 10-11-1997 calling upon the respondent to grant admission to the petitioner. But the respondent did not act upon the said notice. In these circumstances the petitioner filed this writ petition praying for a direction to the respondent to admit to the petitioner in the B.Ed. course (English Group) for the session 1997-98.
(2) In the counter affidavit filed on behalf of the respondent it is stated that considering the limited number of seats available, the consistent policy of the University followed and applied uniformly year after year for the past over a decade has been that cases of candidates seeking admission to courses other than Ph.D., B.E. and other part time evening courses, who gave up studies for three or more academic years after taking a degree/diploma/certificate, are referred to and considered for admission by the Admission Review Committee consisting of the Vice-Chancellor, the Proctor, the Dean and the Head of the Department concerned. To substantiate this point, the respondent has produced as Annexure R-1 a copy of the general rules relating to admission contained in the prospectus for 1987-88. Rule 16 therein says that the case of a candidate seeking admission to the courses other than Ph.D., B.E. and other part time evening courses, who gave up his studies for three or more academic years after taking a degree/diploma/certificate will be considered for admission by the Admission Review Committee consisting of the Vice-Chancellor, the Proctor, the Dean and the Head of the Department concerned, The respondent has also pointed out an identical provision in rule 12 of the rules relating to admission contained in the prospectus for 1997-98 in respect of the faculties of Humanities and Languages, Law, Social Science and Natural Sciences. A copy of the said rules is Annexure R-2 to the counter affidavit. It is stated in the counter affidavit that by sheer oversight a similar provision was not expressly incorporated in the prospectus in respect of the Faculty of Education for the academic year 1997-98. When this omission was noticed Annexure R- 3 notice dated 17-9-1997 was put up on the Admission Notice Board of the Faculty of Education for information of all candidates. As per Annexure R-3 notice dated 17-9-1997 all candidates applying to different courses of the Departments of Fine Arts and Teacher Training were informed that in accordance with the provision laid down in the Prospectus 1997-98 of the Faculty of Education under para 13.4(e), they would be required to submit the proof of engagement during the intervening period after having acquired the last degree/diploma and that in case the intervening period was of three or more academic years, their cases would be considered for admission by the Admission Review Committee consisting of the Vice-Chancellor, the Proctor, the Dean and the Head of the Department concerned. It was also stated in the said notice that the cases sent for consideration to the Admission Review Committee would be duly indicated in the list of selected candidates and admission formalities of such candidates would be processed only subject to the clearance from the Admission Review Committee. It is further stated in the counter affidavit that all candidates who submitted completed application forms are permitted to appear in the written test without any pre-test scrutiny. The candidates are asked to produce relevant certificates only at the subsequent stage of interview when the scrutiny takes place. The mere fact of candidates being allowed to appear in the test or being called for interview does not mean that they are eligible for admission. It is further stated in the counter affidavit that all cases of gap of three or more years and cases of over age were referred to the Admission Review Committee. It is further stated in the counter affidavit that all cases of gap of three or more years and cases of over age were referred to the Admission Review Committee. It is also stated that the petitioner was over-aged by 11 months only and that reference to two years in the merit list was an inadvertent typographical error. It is further stated that the case of the petitioner was considered by the Admission Review Committee along with other cases on 16-10-1997. It is also clarified in the counter affidavit that the rejection of the petitioner’s case was due to the gap of 13 years and not due to over age because in the case of women candidates the committee relaxed the age limit by one year. Though it is admitted in the counter affidavit that the petitioner had approached Prof. M.A. Siddiqui for guidance, it is categorically denied that he gave any assurance to the petitioner as alleged in the writ petition. The respondent has admitted the receipt of the notice dated 20-10-1997 sent by the petitioner but has denied the receipt of any notice dated 10-11-1997. According to the counter affidavit, admission in B.ED.. course was closed on 31-10-1997 and all seats have been filled up. The first phase of training was already over and the second phase of training would be over on 27-11-1997 and the third phase of teaching would commence from 3-12-1997.
(3) The petitioner has filed a rejoinder affidavit reiterating that the prospectus 1997-98 issued by the Faculty of Education did not contain a stipulation that any gap between the last course attended and the present course would be a disqualification for admission or would entail review of the applicant’s case by any Committee. It is contended that the prospectus of the year 1987-88 has no relevance in the year 1997- 98. It is also contended that the prospectus issued by the other faculties for the year 1997-98 have no relevance for admission to courses offered by the Faculty of Education. According to the petitioner, only the general rules relating to admission contained in the prospectus issued by the Faculty of Education for the Year 1997-98 are relevant in this case. The petitioner has placed on record a copy of the general rules relating to admission contained in the prospectus of the Faculty of Education for the year 1997-98. It is also stated in the rejoinder affidavit that even in the prospectus of the faculty of Education for the year 1996-97 there was no stipulation that any gap between two courses would be a disqualification. To substantiate this statement the petitioner has produced a copy of the general rules relating to admission contained in the prospectus for 1996-97 [Annexure E to the rejoinder affidavit]. It is further stated in the rejoinder affidavit that the notice dated 17.9.1997 (Annexure R-3 to the counter affidavit) was not brought to the notice of the petitioner at any point of time during his several visits to the office of the respondent. It is also contended that there is no basis or justification for the arbitrary and illegal condition providing for reference of the cases to an Admission Review Committee. There are no guidelines or rules laying down that admission of candidates having an intervening period of more than three years would be considered by the Admission Review Committee. No criteria have been laid down for granting or denying admission to candidates having an intervening period of more than three years. It is further contended that an upper age limit has been prescribed for admission to various courses. In the case of Bachelor of Fine Art and Art Education, Bachelor of Fine Art in Applied Art and Bachelor of Art in Painting, the upper age limit is 23 years while the upper age limit in the case of Bachelor of Education is 33 years. The B.ED.. course has been placed on a different footing and hence the rules, terms and conditions and other criteria in the case of other courses are not applicable to B.ED.. course. According to the petitioner, it is hard to believe that a candidate would be studying upto the age of 33 years without any intervening period or gap. The prescription of an upper age limit of 33 years suggests that the respondent expects candidates to join the B.Ed. course after having settled down in life so that they can pursue higher studies at a later point of time in life. The said object of prescribing on upper age limit of 30 years is sought to be restricted and taken away by denying admission on the ground that a candidate has an intervening period of three or more years . It is also pointed out in the rejoinder affidavit that in the minutes of the meeting of the Admission Review Committee held on 16.10.1997 (Annexure R- 5 to the counter affidavit) respondent has not disclosed any reason for rejecting the case of the petitioner. This, according to the petitioner, suggests that the respondent acted in an arbitrary manner and without any guidelines.
(4) On behalf of the respondent an additional affidavit also has been filed stating that the practice of denying admission to candidates after an interruption/gap of a number of years in studies is followed in most Indian Universities and is not peculiar to the respondent university. According to respondent it is generally felt in academic circles and in Jamia Millia Islamia that continuity of education is of paramount importance. Since the number of seats available in each course are far less vis-a-vis the number of applicants, non serious candidates who had larger gaps in their academic careers may be ignored giving preference to those who had no gaps or had less gaps which could be condoned. It is further stated that it has been the experience of the university authorities that students with larger gaps turn out, by and large, to be non-serious and occupy seats not for any academic accomplishment but for securing various privileges attached to studentship like hostel facilities, free bus passes and/or fighting election of the students union. Another aspect deliberated by the Admission Review Committee was about Academic compatability amongst students and it was felt that keeping in view a vastly developed and rapidly developing world with an ever changing technical and academic scenario, students with larger gaps had problems of academic congeniality. It is further stated that the relaxation for women and SC/ST was Keeping in view the constitutional requirements of protection of backward and weaker sections of society which already has the support of Jamia Millia Islamia Act, 1988. It is also stated in the additional affidavit that the prospectus for each academic year is placed before the Academic Council for approval and that the prospectus for the academic year 1997-98 was approved by the Academic Council without noticing the omission of the clause relating to interruption of studies.
(5) In the light of the above mentioned pleadings of the parties, the first question to be considered is whether the petitioner was eligible for admission to the course as per the prospectus issued by the respondent. It is not disputed that unlike the prospectus of other Faculties, the prospectus of the Faculty of Education for 1997-98 did not contain the clause regarding the review of cases by the Admission Review Committee where there is a gap of three or more academic years between the last course and the present course. The general rules relating to admission contained in the prospectus (Annexure D to rejoinder affidavit) did not contain any such clause. It is true that under paragraph 13(4) (e) of the prospectus the applicant is required to produce at the time of interview a “certificate of engagement during intervening period”. But it does not amount to a stipulation that applicants having an intervening period will not be admitted unless cleared by the Admission Review Committee. Moreover the requirement regarding production of certificate of engagement, is applicable not only to applicants having a gap of three or more years but also to applicants having a gap of less than three years. The prospectus issued by other Faculties for 1997-98 or the prospectus issued by the Faculty of Education for the previous years cannot apply to admission to B.Ed. course in 1997- 98. Hence, in my view, as per the prospectus issued by the Faculty of Education for 1997-98 the petitioner was eligible for admission to B.Ed. course and he did not suffer from any disqualification.
(6) The next question to be considered is whether the clause relating to gap between the courses was not incorporated in the prospectus by a sheer oversight as contended by the respondent. The respondent has not placed on record any decision by a competent authority of the University to include such a clause in the rules relating to admission B.ED.. course. The inclusion of such a clause in the rules relating to admission in courses conducted by other Faculties is not relevant since different rules and norms can be prescribed for different courses. The question of oversight can arise only if there was a basic decision to stipulate such a condition for admission to B.ED.. course. No such decision of any competent authority was brought to my notice. Moreover, there are two circumstances which go against the respondents contention that the clause was not incorporated in the prospectus for 1997-98 by a sheer oversight. The first circumstance is that even in the prospectus issued by the Faculty of Education for 1996-97, such a clause was not incorporated. The second circumstance is that no corrigendum was issued by the respondent at any time. According to the averments in the counter affidavit Annexure R-3 notice was published on 17.9.97 after the alleged omission was noticed. If an omission was noticed the proper course was to issue and publish a corrigendum to rectify the mistake in the rules relating to admission contained in the prospectus. It was not done. Even in Annexure R-3 notice it was not stated that a particular rule or condition or requirement was by mistake omitted to be included in the rules relating to admission and that the same was being brought to the notice of the applicants for admission. On a careful reading of Annexure R-3 notice, it would appear that even while issuing the said notice the Dean of the Faculty of Education proceeded on the wrong assumption that as per the prospectus, cases with an intervening period of three or more years will have to be considered by the Admission Review Committee. Hence it is not a case where the condition was not incorporated by a sheer oversight. Rather it is a case where the authorities concerned including the Dean and the Admission Review Committee proceeded on the wrong assumption that as in the case of some other Faculties such a condition existed in the rules relating to admission contained in the prospectus issued by the Faculty of Education also.
(7) Another question to be considered is whether the respondent could have introduced and enforced a condition which was not by oversight or otherwise incorporated in the rules relating to admission published in the prospectus. Since the respondent is competent to prescribe the conditions for admission, the respondent is competent also to amend or modify such conditions. But such amendment or modification should be effected and published before the commencement of the process of selection and admission. If the amendment or modification is not effected and published before the commencement of the process of selection and admission, it will adversely affect the fairness in the selection and admission of students. In this case no amendment or modification to the rules relating to admission contained in the prospectus was effected or published at any time. It is true that before the holding of the written test and the interview the Dean of the Faculty of Education had published Annexure R-3 notice by which the applicants for admission were informed that in case the intervening period was of three or more academic years their cases would be considered for admission by the Admission Review Committee. But Annexure R-3 notice did not contemplate or envisage or amount to any amendment or modification to the rules relating to admission or the conditions for admission. As already observed earlier, the Dean of the Faculty who issued Annexure R-3 notice was proceeding on a wrong assumption. Hence the petitioner cannot be denied admission on the basis of Annexure R-3 notice.
(8) It was contended on behalf of the respondent that no applicant has a right to admission and that he has only a right to be considered for admission in accordance with the rules relating to admission. I have already found that the petitioner was eligible and entitled to admission as per the rules relating to admission contained in the Prospectus and that no amendment or modification to those rules was effected or published at any time. The denial of admission to the petitioner was on the ground that she did not satisfy a requirement or condition which did not exist in the rules. Consequently the denial of admission to the petitioner is illegal and arbitrary. As the petitioner was entitled to admission as per the rules and she was denied admission illegally and arbitrarily, the respondent is liable to be directed by this court to admit the petitioner to the B.Ed course 1997-98.
(9) Learned counsel for the petitioner contended that there is no rationale in denying of admission on the ground of gap between the last attended course and the present course. Learned counsel for the respondent referred to the averments in the additional affidavit and tried to justify the policy of denying admission to candidates with larger gaps between the two courses. Normally it is not for this court to judge the validity or merit of a policy evolved by the university in the matter of admission. Such questions should be better left to be decided by the experts in the field. At any rate, in this case it is not necessary to adjudicate on the merits or soundness of the above mentioned policy because, in the case of admission to B.Ed. course 1997-98, the rules relating to admission did not contain any provision incorporating the said policy.
(10) Learned counsel for the respondent submitted that there are only four seats in the general category in the English Group and all the seats have been filled up. According to him, if the petitioner is now given admission one of the students already admitted will have to be sent out or an additional seat will have to be created. This unpleasant situation was created by the illegal action of the respondent in refusing to admit the petitioner who was eligible and entitled to be admitted as per the rules relating to admission. May be it was not done deliberately. However the problems arising out of such a situation have to be solved by the respondent itself. The petitioner cannot be asked to suffer on account of the omission or mistake or illegality committed by the respondent. The petitioner was entitled to be admitted to the course as she had secured rank no.2 in the merit list. If the petitioner does not get admission during this year she will never get it due to over age. Hence the respondent has to admit the petitioner to the course even if it calls for sending out a student who was wrongly and illegally admitted. Since the admission of the said student also was due to the mistake or illegality committed by the respondent, it may not be fair and just to send out that student at this stage. The problem can be solved by the respondent by creating one more seat which in the given circumstances should not be difficult for the respondent university.
(11) Learned counsel for the respondent also pointed out the difficulties in admitting the petitioner now as the classes had commenced in the first week of November, 1997. According to him there could be problems relating to attendance and making up for the lost classes. Learned counsel for the petitioner submitted that the petitioner would make all efforts to overcome those difficulties and that relief should not be denied to the petitioner since she had approached the Court sufficiently early. I also think that the problems mentioned by the counsel for the respondent should be the worry of the petitioner and not of this Court. Moreover it is not too late even now. I do not wish to deny relief to the petitioner since there was no unreasonable or unjustifiable delay on her part in approaching this court. As far as possible, justice should not be denied to a petitioner on account of the delay in concluding the proceedings in the court. Otherwise the remedy through court will become illusory and a farce.
(12) Hence the writ petition is allowed. Rule is made absolute. The respondent is directed to admit the petitioner forthwith to B.ED course (English Group) for the academic session 1997-98. There will be no order as to costs.