Heard Sri Prashant Chandra, learned Senior Advocate, assisted by Sri Faisal Ahmad Khan, Advocate, learned C.S.C., Sri S. P. Shukla, Advocate, appearing for opposite parties no. 2 & 3, Sri Shashi Prakash Singh, learned counsel appearing for opposite party no. 4, Sri C. B. Pandey, learned counsel appearing for opposite party no. 5 and Dr. Ravi Kumar Misra, Advocate. Appearing for opposite party no. 6.
2. This appeal is directed against the order dated 26th April, 2011 and consequential order dated 19.5.2011 passed in Writ Petition No. 3038 (MS) of 2011 (Ajeet Singh Yadav vs. State of U.P. & others) leading Writ Petition No. 2143 (MS) of 2011 (Sushma Devi vs. State of U.P. & others) and other connected petitions.
This appeal was jointly filed by seven appellants. The matter came up for hearing. Learned counsel has prayed that he may be allowed to pursue the appeal in respect of appellant no. 1 with liberty to file independent appeals in respect of other appellants.
We grant liberty to the said appellants.
3. The appellant was a student who had applied for B.Ed. Course in 2010-11. Admission was to be done through a central agency namely, respondent no. 2 in the light of the law declared by the Supreme Court in P.A. Inamdar. The respondent no. 2- Lucknow University for that purpose, issued a brochure known as "JEE B.Ed. 2010, The Counseling Procedure". There is no dispute that the appellant herein, being a meritorious candidate was called for counseling in the first round.
4. In terms of the brochure for selection, issued by the University, the candidates had to comply with the following requirements:
"SEAT CONFIRMATION FEES:
1.The allotment letter will be issued to the candidates the day after the choice filling has been carried out.
2.All candidates allotted a seat have to deposit a Seat Confirmation fees at the SEAT CONFIRMATION COUNTER within four days of choice filling.
3.The amount of seat confirmation fees will be mentioned on the candidate's allotment letter.
4.If the candidate fails to deposit the seat confirmation fees within the stipulated time, he/she will have no claim over the seat any more. (emphasis supplied)
5.The candidates have to report to the SEAT CONFIRMATION COUNTER for confirming their seats even if the amount of college fees is less than the advance fees of Rs. 5000.00.
6.Several aided colleges have fees less than the advance fees of Rs. 5000.00. Candidates allotted such colleges will be refunded the remaining amount from the respective college after they report there."
From these conditions which had to be complied with, condition no. 4 was specific inasmuch as if the candidate fails to deposit the seat confirmation fees within the stipulated period, it was set out that such candidate will have no claim over the seat anymore. The appellant, in the instant case, did not deposit the seat confirmation fees at the seat confirmation counter. Based on the allotment letter, the institution where he was to be admitted, granted admission and the appellant is pursuing his course till date pursuant to interim orders of this Court.
5. The students who were admitted in the first round were issued a letter by the University of Lucknow that the students had been provisionally allotted a seat in the College and the candidate had to deposit the college fee at the Counselling Centre through a demand draft in favour of the Finance Officer, University of Lucknow within three days and if the amount was not deposited within the specified time, the allotment will stand cancelled. Each of the students had deposited the advance of Rs.5000/- and the fees claimed were either less or no fees and based on the letter of allotment they went to the College and were admitted. The fact of admission was also confirmed by the M.J.P. Rohilkhand University. Factually, however, they had not deposited the amount which they were called upon to deposit at the seat confirmation centre.
6. The respondent no. 1 thereafter sought to fill the unfilled and/or vacant seats in the second round. According to the respondent University, as the candidates had not produced the seat confirmation fees receipt at the Seat Confirmation Counter in terms of the brochure and the allotment letter, they had forfeited the right to admission. The computer also showed the seat as vacant. The respondent University, therefore, made another allotment in respect of those seats. It is admitted position that when the candidates from the second round went for admission, the colleges concerned in some cases did not admit such students and in some other cases admitted the students against the available seats.
Consequent to the selection authority, the University of Lucknow, sent a second list of names, for the seats where allotment was made in the first round against seats where students had been admitted, various petitions were filed before this Court both by candidates who were earlier admitted and by those candidates who were allotted in the second round but not admitted. One of such petitions is W.P. No. 10188 (MB) of 2010 along with other connected petitions. We may reproduce the interim order passed by this Court:
" On 07.10.2010, we had passed the following order in Writ Petition No.10052 (M/B) of 2010, which on reproduction reads as under:-
"This writ petition has been filed against the order of cancellation of admissions of petitioners, claiming to be the B.Ed. students. It is submitted on behalf of the petitioners that they had fared quite well in the examination and had been placed high in merit list.
Thus, they were given admissions by allotting various colleges where they are pursuing studies but to their utter disappointment and dismay the university authorities which are expected to act like their guardian have betrayed them by canceling the admissions without giving them any opportunity and behind their back and by giving admissions to such students who were placed much lower in comparison to the petitioners in the merit list.
Hence such an act on the part of teaching institutions need to be curbed, and firmly dealt with by nipping it in the bud.
Hence we direct the Director, C.B.I. to constitute a team of C.B.I. Officers who shall enquire into the allegation and submit a report to the Court. In case they find that the university authorities have acted malafide just in order to harass the students and such acts come within the definition of offence, the C.B.I. would be at liberty to register cases against them and put up charge sheet.
At this stage, Sri S.P. Shukla makes repeated prayers to give a chance to University authorities to correct themselves. Thus, we defer the matter till Monday (11.10.2010) for giving an opportunity to the University to review its decision. The impugned order of cancellation shall remain stayed during the pendency of this writ petition.
Put up on Monday i.e. 11.10.2010."
7.In another petition being no. Misc. Bench No. 10052 of 2010 this Court noted that 546 students were admitted to the B. Ed. Course and it appears that they had not complied with the procedure for admission, namely, obtaining their confirmation, as a result of that, the body conducting the interview found that those seats were vacant and conducted the second round counseling and allotted the seats accordingly. This Court further noted that most of 546 students approached this Court and this Court granted interim order in their favour. This Court also noted that in the meantime the other students who were admitted in the second round of counseling, approached this Court at the Principal Seat, Allahabad and the learned Single Judge in several writ petitions including one Writ -C No. 64060 of 2010, had directed the colleges in those cases, to admit the students. In the light of that, the University was called upon to seek information. The matter was, however, adjourned.
Writ Petition No. 10052 of 2010 thereafter was taken up on 28.4.2011 on which date the University made a statement that after passing of order by this Court on 20.10.2010, the University has not mentioned anything on record, saying that these candidates are not eligible to be admitted for the purpose of pursuing the course, this Court observed:
"Thus, we direct that all the colleges with B.Ed. Courses to which the candidates have been allocated, shall allow the candidates to continue with their study of B.Ed. Course. Moreover, these candidates are said to be belonging to the first counseling, therefore, on completion of their course, they may lay their claim for entitlement to appear at the examination at the end of the course."
Thus, in so far as about 546 students who were admitted in the first round, this Court by interim order protected their admissions in the institutions in which they were admitted. Those students are prosecuting their studies and the term is about to end.
8.A learned Single Judge at the Principal Seat at Allahabad in Civil Misc, Writ Petition No. 536 of 2011, Sachin Arora & others vs. State of U. P. & others, delivered on 31.1.2011, observed that those students who were admitted in the first round and whose admissions were canceled or they were not permitted to pursue their studies on account of hon-deposit of fees had no right to continue and the cancellation of the admission was upheld. In that petition, there was also a challenge to the Notification of the Registrar of the University of Lucknow dated 28.9.2010. The Court held that there was no reason to quash the Notification dated 29th/30th September, 2010.
9.In that notification, it was set out that -
"Seats in the B.Ed. Program for academic session 2010-11, allotted through JEE B.Ed. 2011 counseling to all those candidates who failed to submit the Allotment Confirmation/Seat Acceptance Declaration (Balance college fee deposit receipt) to the colleges, have been cancelled. Fresh candidates have been admitted against these seats by the second round of counseling. The participating colleges/universities are expected to verify all the documents submitted by the candidates. Names of only those candidates who report with initial fees deposit receipt (Rs. 5000.00), Counseling fee deposit receipt (Rs. 500.00), Allotment letter and Allotment confirmation/ Seat acceptance declaration (Balance college fee deposit receipt) must be entered in the rolls of the colleges. Offering seats to any candidates without duly completed above documents will amount to giving admission to an ineligible candidate against the rules specifically formulated for JEE B.Ed. 2010 by competent authorities. The onus, in all such cases, would solely lie on the Principal/Dean/Head to whom the allotment letter is addressed and who is the overall in charge of the college/faculty/department."
10. A learned Single Judge at Lucknow placing reliance on the judgment of the learned Single Judge at Allahabad was pleased to dismiss the petitions against which the present special appeal.
11. At the hearing of this appeal, on behalf of the appellants, learned counsel submits that the action of the University which was not the admitting University in cancelling the allotment of the appellants and in forwarding other candidates in second round for admission is illegal, null and void. It is submitted that though in the brochure there was a condition that the allotted candidates had to deposit the seat confirmation fees, that was only a procedural requirement as the appellant and similarly situated candidates were under a bona fide belief that as they had deposited an amount of Rs.5000/- as advance for the fees and the fees were less than the said amount, they need not deposit the fees confirmation fee. The College also granted admissions without the said deposit. Once they were admitted, the civil right of the appellants would be affected if the cancellation of allotment is done without affording any opportunity to them. In the instant case, no such opportunity was given to the appellants. Secondly, learned counsel for the appellants contended that neither in the brochure nor in the purported notification issued by the Registrar dated 28.9.2010 there was any specific condition that on failure of taking Allotment Confirmation/ Seat Acceptance declaration, the admissions of the appellants would be cancelled and what was set out was that the candidates will have no claim to the seat. It is pointed out that once admissions were made by the College, the issue of no claim would not arise. Assuming that the notification was issued on 28.9.2010, that would not apply in the facts and circumstances of the case to the appellant and the other similarly situated candidates. Apart from that, the notification notes that it is the duty of the College to ensure that the requisite receipt is produced.
12. On the other hand, on behalf of the University, learned counsel submits that in absence of any information as to how many candidates have been allowed to take admission by the Colleges and as their computer data entry showed the seats as vacant, on failure of the appellant and similarly situated candidates in producing the Allotment Confirmation/Seat Acceptance declaration before the Counselling Centre, they were compelled to send other candidates in the second round of counselling.
13. The question for consideration is whether the selection authority, which was not the admitting authority in most cases except for the affiliated colleges of Lucknow University could treat the admissions done already by the allottee College and treat it as non-est and allot candidates in the second round for the same seat. The second question is whether the failure to deposit the amount as set out in the allotment letters could result in depriving the selected candidates the right to admission, even if the fees asked to be deposited were covered by the deposit of Rs.5000/- already made by them.
14. We have earlier noted, the admission brochure of which we have reproduced the relevant portion. In so far as Seat Confirmation fee is concerned, it would be clear from the brochure that all the candidates who had been allotted seats, had to deposit Seat Confirmation fees at the Seat Confirmation Counter and if the candidate failed to deposit the seat confirmation fees within the stipulated time, he/she will have no claim over the seat any more. The appellants and other similarly situated candidates had deposited advance fees of Rs. 5000/-. Their seat confirmation fee was less than that. In these circumstances, can the students like the appellants be placed in a position that though their college and the affiliated University had granted them admission, the allotting authority had allotted other candidates for the same seats. Condition no. 5, shows that the candidates had to report to the Seat Confirmation Counter for confirming their seats even if the amount of college fees is less than the advance fees of Rs. 5000.00. In the instant case, the appellant and other similarly situated candidates had paid the advance fees of Rs. 5000.00 and were entitled to refund of the balance fee. Learned counsel for the University took us to the letter of allotment. We may refer to one which is set out in the said letter of allotment:
"The candidate has to deposit Rs. (-2022) as the balance of the college fee at the counselling centre through a DD in favour of Finance Officer, University of Lucknow, payable at Lucknow within three calendar days from the issue of this letter (excluding the Independence Day). If this amount is not deposited at the counselling centre within the specified time, the allotment will stand cancelled and the sum of Rs. 5000.00 deposited by the candidate as the Advance College Fee will be forfeited.
Even if the amount of college fee is less than Rs. 5000.00 or the candidate is allowed zero-fee, he/she has to report to the fees deposition counter today itself and get a receipt with negative balance to confirm his/her allotment. The excess amount, if any, will be refunded to the candidate by the respective college. All candidates have to report to the colleges fee deposition counter at the counselling centre without which the seat allotment will be incomplete."
From this, it would be clear that as in the brochure it is set out that if the amount is not deposited at the counselling centre within the specified time, the provisional allotment would not be confirmed even if the amount was less than Rs.5000/- then to get a receipt with negative balance to confirm the allotment. There is no dispute that seat allotment fees had not been paid by the appellants.
15. We may now consider the merit of the second paragraph although it says that if the amount of college fee is less than Rs. 5000.00 or the candidate is allowed zero-fee, he/she has to report to the fees deposition counter and get a receipt with negative balance to confirm his/her allotment. Later part of paragraph only says that all the candidates have to report to the colleges fee deposition counter at the counselling centre without which the seat allotment will be incomplete. This is similar to the language of the brochure. If allotment was incomplete, could it be completed. In our opinion, if a view is taken that there is a power of cancellation though the candidates deposits covered the fees payable then a meritorious candidate who had been selected and had paid his fees as the deposit was sufficient, then such a view would be arbitrary as that would amount to a penalty to pay additional fees though fees were not payable. A procedural requirement cannot result in denying to a meritorious candidate the seat if in fact he had deposited the fees. Further the colleges to which they were allotted had admitted them. Thus a mere procedural failure cannot result in depriving the candidate of the seat. Merely because after the allotment they had not reported to the college fee deposition counter, will not result in denying such candidates their right of completing the course after being admitted. In our opinion, the admission would be complete the very moment the candidate was selected and the necessary fees had been deposited and was admitted to the college. The requirement in the brochure was only a procedural requirement to enable the University to know if there was any vacancy and the candidate who was allotted to the college had been admitted. By any stretch of imagination it cannot result in holding that because of non completion of the said requirement, the admission of the candidate itself would be non-est. We reiterate that the moment the students are admitted and the respective University accepts, then their admission was complete. The action of the University as the allotting authority in allotting candidates in the second round against the said purported vacancy would thus be arbitrary and consequential action of the Lucknow University after the allotment has been completed, is illegal. The admission could only be cancelled by the respective Colleges or the University to which it was affiliated and that too after complying with the principles of natural justice. If the College had admitted the students contrary to the procedure in the brochure, action if and at all is to be taken against the College authorities and not the students. There was nothing in the allotment letter which can result in holding that if the students had not reported to the seat confirmation counter even though the deposit was in excess of the fees and the College had admitted them, then those admissions were non-est.
16. For all the aforesaid reasons, the appeal is allowed. The impugned order is set aside and the petition is allowed in terms of prayer clause (C) which reads as under:
"a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to pursue his studies and also to allow him to appear in the forthcoming B.Ed. Examinations for the academic session 2010-11 and to declare his results."
17. We make it clear that if any other candidate had been admitted pursuant to the second round of counseling and their admission does not affect the right of the candidates admitted in the first round, then in that event, the admission of such candidates would also not be interfered with. We further direct that the authority which is entrusted with the procedure for selection does not make it a requirement for the students to pay additional amount towards fees, if the fees can be adjusted from the sum of Rs.5000/- or such as the students may be called upon to deposit.
26.5.2011/ashok (F.I. Rebello, CJ) (D.K. Arora, J)