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Director, Motilal Nehru National ... vs Anu Shri Shukla And Anr.

High Court Of Judicature at Allahabad|27 November, 2003

JUDGMENT / ORDER

JUDGMENT Ashok Bhushan, J.
1. These two Special Appeals raises common question of facts and law hence are being disposed of with the consent of the parties.
2. We have heard Sri Ramesh Upadhyaya, advocate appearing for the appellants in both the appeals and Sri Madhu Sudan Dixit and Sri Rahul Sahai advocates appearing for the respondents-writ petitioners in these appeals.
3. It is sufficient to note facts of Special Appeal No. 888 of 2003 to dispose of both the Special Appeals. The respondents-writ petitioners appeared in All India Engineering Entrance Examination, 2003 conducted by the Central Board of Secondary Education. The first Counselling for admitting the students took place from 10th July, 2003 to 18th July, 2003 in which the petitioner-respondent could not be allotted any seat. The all India rank of the petitioner-respondent Anu Shri Shukla was 44029 and that of Keerti Pratap Singh was 22835. The extended counselling was held by Central Counselling Board, however, extended counselling was not held for U.P. candidates. The Central Counselling Board took a decision that seats if any remaining vacant in the institution may be filled up by the Institutional Counselling subject to rank of the candidates. Seven seats in Moti Lal Nehru National Institute, Technology had fallen vacant due to dropping out of the students due to various reasons. The vacancies were put up on internet and 211 candidates of the open category applied for admission in Moti Lal Nehru National Institute, Technology, Allahabad against seven vacancies. In the list of 211 candidates the name of the respondent-petitioner Anu Shri Shukla was at serial No. 179 and that of Keerti Pratap Singh was at 130. The B.Tech. Course in Moti Lal Nehru National Institute, Technology commenced from 4.8.2003. The Moti Lal Nehru National Institute, Technology, Allahabad admitted only two candidates out of first seven from the list of 211 candidates. On 26.8.2003 admission was closed by Moti Lal Nehru National Institute, Technology without filling the remaining five seats. A notice to that effect was issued on 27.8.2003 that the admission has been closed on 26.8.2003 at 5.00 p.m. Writ Petition No. 38780 of 2003 was filed by the respondent Arm Shri Shukla claiming for mandamus commanding the respondents to grant admission to the petitioner on vacant seat in Moti Lal Nehru National Institute, Technology, Allahabad. The case of the petitioner in the writ petition was that her name is shown at serial No. 179 in the list of 211 candidates who have applied against seven vacant seats. The petitioner's further case was that she went in the institution on 26.8.2003 but inspite of the fact that only two persons were admitted and five seats were vacant the petitioner was not given admission. Counter-affidavit was filed by the Director, Moti Lal Nehru National Institute, Technology, Allahabad and Dean, Academic Affairs of Moti Lal Nehru National Institute, Technology admitting that against seven seats vacant 211 students have applied in open category in which serial number of the petitioner was 179. In the counter-affidavit in paragraph 7 it was stated that out of these 211 students seven students were to be admitted on the vacant seats and till the evening of 26th August, 2003 only two students from amongst the first seven students appeared who have been granted admission. It was further stated that candidates of higher rank than the respondent have approached the institution and are still approaching for admission. It was stated that if the remaining five seats are to be filled up they can be filled up in accordance with merit list of 211 candidates. It was further stated that the classes have started from 4th August, 2003. It was admitted that five seats are vacant but no admission to any of the students is being granted. Rejoinder-affidavit was filed in the writ petition reiterating that five seats are lying vacant after 26th August, 2003. Learned single Judge vide its judgment dated 12.9.2003 disposed of the writ petition directing the respondents to admit the petitioner on one of the five vacant seats on 13.9.2003 and permit her to appear at the examination scheduled to be held on 15.9.2003. Special Appeal No. 888 of 2003 has been filed by the appellant challenging the judgment dated 12.9.2003.
4. Special Appeal No. 1019 of 2003 has been filed against the judgment dated 25.9.2003 of the learned single Judge by which the learned single Judge has disposed of the writ petition filed by the Keerti Pratap Singh in terms of the judgment dated 12.9.2003 passed in Writ Petition No. 38780 of 2003, Anu Shri Shukla v. Director, Moti Lal Nehru National Institute, Technology, Allahabad and Ors. The serial number of Keerti Pratap Singh was 130 in the merit list of 211 candidates who had applied against seven vacant seats for Institutional Counselling. It is relevant to note that the writ petition was allowed on 25.9.2003 whereas the examination had already started on 15.9.2003.
5. Learned counsel appearing for the appellant contended that the judgment of the learned single Judge directing for admitting the respondent was not justified. It was contended that the institution has offered admission only to first seven candidates out of 211 candidates in open category and two out of those seven have appeared for admission and were granted admission. The mere fact that the seats are vacant is not a ground for directing for admission. It was further contended that no direction can be given in favour of the .writ petitioner since there were several candidates higher in the merit who were not given admission and had applied for admission against seven vacancy. The counsel for the appellant placed reliance on the judgments of the Apex Court in Shravan Kumar and Ors. v. Director General of Health Services and Anr., (1993) (Supp) 1 SCC 632 ; Dr. Subodh Nautiyal v. State of Uttar Pradesh and Ors., (1993) (Supp) 1 SCC 593 and Medical Council of India v. Madhu Singh and Ors., (2002) 7 SCC 258.
6. Learned counsel appearing for the respondents-writ petitioners Sri Madhu Sudan Dixit and Sri Rahul Sahai advocates refuting the contention of the counsel for the appellants contended that the learned single Judge has rightly directed for their admission since they had appeared on 26.8.2003 for admission and only two candidates were given admission whereas five seats were left vacant. Reliance has also been placed by the counsel for the respondents-writ petitioners on the judgment of the Apex Court in Sharwan Kumar v. Director General of Health Services and another, (1993) 3 SCC 332 and on Paramjeet Gambhir and Anr. v. State of M. P. and Ors., 2003 (3) SCCD 1301 : (2003) 2 UPLBEC 1700. Learned counsel for the respondents also relied on the Procedure for Centrally Co-ordinated Institutional Counselling for Central Counselling Board All India Engineering Entrance Examination, 2003.
7. We have considered the submission of counsel for both the parties and have perused the record. There is no dispute that seven seats were vacant and the names of respondent-writ petitioners were included in the list of 211 candidates at serial Nos. 179 and 130. The case of the appellant is that since there were only seven seats and first seven candidates were to be admitted and since two out of those seven turned up and were admitted the rest five seats were not filled up. The appellant did not fill all the seven vacant seats and had admitted only two candidates and rest five seats were left vacant. The question which has arisen in this appeal is as to whether the writ petitioner had right to be admitted against the vacant seat and a direction for their admission could have been issued by the learned single Judge in the facts of the present case. From the case of the appellant as taken in the counter-affidavit filed in the writ petition, it is clear that they have only offered admission to only first seven candidates in the list of 211 candidates and filled only two seats since only two candidates out of seven have turned up. The stand of the appellant is clear that they did not consider the other candidates in the list of 211 candidates including the petitioner-respondents. The first issue raised in the appeal is as to whether in view of the above facts, the learned single Judge was right in issuing direction to admit the writ petitioner. In the list of 211 persons who all had applied for admission against above seven vacant seats in open category, the rank of the respondents were 179 and 130 respectively. Even for argument sake it is accepted that the appellants were liable to fill all seven seats, they were to offer the seats according to merits and when specifically it was stated in the counter-affidavit that large number of candidates above in merit to the respondents-writ petitioners had approached and are still approaching the appellant for admission. We are satisfied that the learned Judge erred in directing for admission of the writ petitioners. The writ petitioners were not the next in merit who were to be admitted or called for admission. The direction of the learned Judge for admitting the writ petitioners without considering all the candidates who were higher in merit and had applied against seven vacant seats, was not justified. The Apex Court in Sharwan Kumar's case (supra), while considering the case of candidates who have applied for admission against 15% All India quota which was left unfilled, made observations that no direction for admitting the writ petitioner can be issued by this Court. Following was observed in paragraph 4 :
"4. So far as the present petitioners are concerned, we cannot straightaway direct their admission against the vacant seats............. even if there are seats vacant. It might happen that candidates who are higher in the merit-list and who have not approached the Court, would be deprived of their legitimate rights if candidates far below them get admissions, on no other ground than that they have approached this Court."
The above observation of the Apex Court clearly support the contention of the appellant that no direction could have been given by the learned single Judge for admission of the writ petitioners when they were much below the several candidates who had applied for seven vacant seats. In above view of the matter, we are satisfied that the direction of the learned single Judge for admitting the writ petitioners cannot be justified.
8. Learned single Judge also failed to take into consideration the fact that the examination was to commence from 15.9.2003 and the course had already started on 4.8.2003. The direction on the writ petition of Anu Shri Shukla was issued on 12.9.2003 and the learned Judge also directed permitting the petitioner to appear in examination. The candidate having been directed to be admitted only on 13.9.2003 cannot be allowed to appear in the examination which was commencing from 15.9.2003. In second writ petition of Keerti Pratap Singh the direction for admission was issued by the learned Judge on 25.9.2003 whereas the examinations had commenced from 15.9.2003. The Apex Court in several cases has clearly held that the admission should not be directed in the mid session and even if seats are unfilled, that cannot be a ground for making admission in mid session. The Apex Court considering several earlier cases in Medical Council of India's case (supra), following has held in paragraphs 22 and 23 :
"22. It is to be noted that if any student is admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual position goes to show, the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned counsel for respondent 1 that with the object of preventing loss to the national exchequer such admissions should be permitted, we are of the view that the same cannot be a ground to permit midstream admissions which would be against the spirit of governing statutes. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by taking into consideration the capacity of the student to study and the appropriate spacing of classes. The students also need rest and the continuous taking of classes with the object of fulfilling the requisite number of days would be harmful to the students' physical and mental capacity to study."
"23. There is, however, necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.
In conclusion ;
(i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education ;
(ii) even if seats are unfilled that cannot be a ground for making mid session admissions ;
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of subsequent year ;
(iv) M.C.I. shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date of admission ;
(v) Different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time ;
(vi) no variation of the schedule so far as admissions are concerned shall be allowed ;
(vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by M.C.I.
Without taking the above aspect of the matter into consideration the learned single Judge directed for admission of the petitioners straightaway which cannot be sustained."
9. The question still remains as to whether the appellants were justified in not filling of the vacant seats on 26.8.2003 which were required to be filled up by Institutional Counselling. Procedure for Centrally Co-ordinated Institutional Counselling has been relied by the counsel for the respondents which itself contained Clause 11 which provides that the institutions may not offer their vacant seats. Clause 11 of the Centrally Co-ordinated Institutional Counselling is quoted below :
"11. Is there any provision for wait listing?--The institutions may issue letters to some candidates who are not admitted, wait listing them. However, a wait listed cannot be assured admission and right of offering admission solely rests with the institution and Central Counselling Board."
10. The discretion which has been given to the institution has to be reasonably exercised on basis of valid grounds. We need not dwell further in this case as to whether the appellants were justified in keeping five seats vacant or not in view of the fact that the course has already commenced from 4.8.2003 and Examination of first semester has also been held. In view of above no direction at this stage can be issued for offering vacant seats to the candidates according to merit.
11. Now coming to the decisions relied by the counsel for the respondents. The first decision relied is judgment of the Apex Court in Paramjeet Gambhir's case (supra). In the aforesaid case certain seats which were surrendered from All India Quota even before first Counselling took place were not included in the said Counselling. The second feature noted in the said case by the Apex Court was that the State Government made provision in the 2002, Rules, whereby the system of opt for waiting was abolished but subsequently in the counter-affidavit filed in the writ petition it was pleaded that Rule 15.8 had been deleted and the old system of opt for waiting had been revived. In view of the aforesaid two reasons the Apex Court held that the appellants were entitled to participate in the second Counselling wherein all the vacant seats should have been made available. The appellants filed the Special Leave Petitions prior to the holding of the second Counselling. The reasons as given in paragraph 5 of the judgment itself distinguishes the said case from the present case. In the present case there was no mistake with regard to number of vacant seats and secondly the admission was offered in the present case only to 1 to 7 students in the list of 211 candidates. The judgment of the Apex Court is clearly inapplicable in the facts of the present case.
12. The second case relied by the counsel for the respondents is Shravan Kumar v. Director General of Health Services and Anr., (1993) 3 SCC 332. The case of Shravan Kumar (supra), was with regard to process of allotment of seat to candidates to various course for admission in M.B.B.S. and B.D.S. under 15% All India Quota. The Apex Court approved the scheme prescribing the procedure to be followed for 15% All India Quota. The said judgment was based on particular scheme approved by the Apex Court which has no application in the facts of the present case.
13. In view of the foregoing discussions the orders of the learned single Judge dated 12.9.2003 and 25.9.2003 impugned in these two appeals cannot be sustained and are hereby set aside. Both the Special Appeals are allowed. Parties shall bear their own costs.
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Title

Director, Motilal Nehru National ... vs Anu Shri Shukla And Anr.

Court

High Court Of Judicature at Allahabad

JudgmentDate
27 November, 2003
Judges
  • S Srivastava
  • A Bhushan