ORDER
1. This petition, at the instance of a student, stems from the refusal of the Harcourt Butler Technological Institute, Kanpur (hereinafter referred to as the Institute) to admit the petitioner in the undergraduate (Paint Technology) course. Three steals for the admission of undergraduates in the Institute were allocated to the Government of Madhya Pradesh. One was in Food and Technology, the other was in paint technology and the third was in Leather Technology.
2. Affidavits have been exchanged between the petitioner and the institute. The petition is ripe for hearing. With the consent of the learned counsel for parties we arc proceeding to dispose of this petition finally.
3. It is not in dispute that the petitioner could not be interviewed for admission by 31st Aug. 1988. The said date, according to the Institute, was the dead line set up by the Institute for making admissions. It has fortified its case by placing reliance upon the proceedings of the meeting of the Faculty of Engineering and Technology held on 24th Dec. 1985. Resolution No. 7 of the said proceeding indicates that the Faculty resolved that the last date of admission under all categories in undergraduate courses was 31st Aug. of a particular year and if after that date any seat remained vacant it was not to be filled up. The precise words used were ''should not be filled up". At this stage we may also notice the circular dated 17th Feb. 1983, sent by the Institute to all the sponsoring States and authorities. Contents of paragraph 6(d) have been relied upon by the Institute and, therefore, the same may be extracted :--
"All nomination papers must be sent by the sponsoring authority by registered post in double sealed envelopes and addressed to the Director, Harcourt Butler Technological Institute, Kanpur. Nomination paper and other documents sent through special messenger (including the candidate who has been sponsored) will not be accepted and rejected."
4. The thrust of the submission of Sri Dinesh Dwivedi is that the petitioner was prevented by sufficient cause in not presenting himself for interview before 31st August, 1988 and he has been punished for no fault of his. For appreciating this submission, a few facts may be noted and they are these. For sponsoring candidates the Government of Madhya Pradesh issued an advertisement and invited applications. This happened in the month of June, 1988. The petitioner applied. The petitioner was interviewed by the Director of Technical Education, Madhya Pradesh (hereinafter referred to as the Director of Madhya 18th July, 1988, the Director of Madhya Pradesh handed over to the petitioner a letter of nomination to be presented before the Institute. On 22nd July, 1988, the petitioner handed over the said letter of nomination to the Institute and the same was duly accepted by its office. The petitioner was informed that he could not be admitted as he had not been sponsored directly by the Director of Madhya Pradesh through a registered letter. The petitioner rushed to Bhopal and apprised the Director of Madhya Pradesh of the situation. A letter dated 27th July, 1988, was again handed over by the Director of Madhya Pradesh to the petitioner to be delivered to the Institute. The Director of Madhya Pradesh pointed out that in view of shortage of time and in view of the fact that the last date for admission was 30th July, 1988, the letter which was being sent under a sealed cover may, be accepted by the Institute from the petitioner. This letter was delivered by the petitioner to the Institute, but in vain. The Institute insisted upon the receipt of the papers through registered post from the Director of Madhya Pradesh. The Institute however, extended the last date till 8th August, 1988. The petitioner went back to Bhopal, met the Additional Director Technical Education of the Government of Madhya Pradesh and apprised him of the situation. However, the Director of Madhya Pradesh, keeping in view the fact that the last date was 8th Aug. 1988, again handed over the papers to the petitioner on 6th Aug. 1988 to be handed over to the Institute. However, the Director of Madhya Pradesh also made a note of the fact that in addition, relevant papers were being dispatched through registered post. This fact is corroborated by the contents of the letter dated 6th Aug. 1988. A true copy of this letter has been filed before us as Annexure IV to the writ petition. The Director of Madhya Pradesh also sent a telegram on 6th Aug. 1988, to the Institute. The Institute refused to take note of the letter dated 6th Aug. 1988, of the Director of Madhya Pradesh. However, it extended the last date of joining till 31st Aug. 1988. The petitioner went back to Bhopal again and saw the Director of Madhya Pradesh. He assured the petitioner that the needful would be done. The petitioner also made a representation in writing to the Director. The Director of Madhya Pradesh assured the petitioner that as soon as the papers were sent by post, he (the petitioner) would be informed. By means of letter dated Aug. 18/19, 1988 sent under registered post, the Director of Madhya Pradesh informed the Institute that the petitioner had been sponsored as one of the candidates. A copy of this letter was also forwarded to the petitioner, which was received by him (the petition) on 1st Sept. 1988. On receipt of the said letter the petitioner rushed to the Institute at Kanpur and arrived there on 5th Sept. 1988. The petitioner was informed that he could not be admitted as 31st Aug. 1988, had expired. The letter sent by the Director of Madhya Pradesh on 18/19th Aug. 1988, under registered post, was received by the Institution on 25th Aug. 1988 (Paragraph 23 of the counter-affidavit of Anil kumar Shukla, Deputy Registrar of the Institute).
5. The stand taken in paragraph 23 of the counter affidavit is that although the documents of the petitioner were received by the Institute from the Director of Madhya Pradesh on 25th Aug. 1988, yet the petitioner was refused admission as he neither presented himself before the screening committee nor deposited any fee before 31st Aug. 1988.
6. We have considered the matter with anxiety. We are convinced that the petitioner had been running from pillar to post to secure his admission in the Institute. In fact, he had been made a shuttlecock by the Director of Madhya Pradesh. We fail to understand as to why the Director of Madhya Pradesh took the matter so easy and did not send the papers by registered post earlier, if he could do so on Aug. 18/19 1986, there was nothing to prevent him from doing so in the month of July. Beggars cannot be choosers. The petitioner did all that he could possibly do in persuading the Director of Madhya Pradesh to sponsor him through registered post. There was no fault on the part of the petitioner in not appearing before the screening committee and in not depositing the fee on or before 31st Aug. 1988. The Institute also took too rigid a stand in ignoring the fact that in any view of the matter, the registered cover dated Aug. 18/19, 1988 was received by it from the Director of Madhya Pradesh on 25th Aug. 1988, i. e. before the dead line set by it (the Institute) namely, 31st Aug. 1988.
7. Should the petitioner be penalised? In Re Presidential Election, AIR 1974 SC 1682 para 15 the Supreme Court held that the law does not compel one to do that which one cannot possibly perform. It quoted with approval from Broom's legal Maxim, Tenth Edition:
"Where the law creates a duty or charge and the party is disabled to perform it, without any fault in him and has no remedy over it, there the law will in general excuse him."
We have, therefore, no hesitation in taking the view that, if it was possible, the petitioner should have been excused and given admission.
8. The terms of the Circular were not sacrosanct in the sense that they could not, in any circumstance, be relaxed. The relevant authority of the Institute had every knowledge that there was a quota of three nominees of the Government of Madhya Pradesh. Before the relevant date only two nominees had been admitted. Before the relevant date, a third nomination (the petitioner's) had been duly made by the said State and received by the Institute well within time. It is not the case of the Institute that the said reservation for the nominee of the Government of Madhya Pradesh had been filled up by accommodating any other candidate. Further, there is no averment that, on account of the failure of the petitioner to turn up on or before 31st Aug. 1988, the institute altered its position to its detriment.
9. We have already referred to the contents of the resolution of the Faculty of Engineering and Technology of the University of Kanpnr, This resolution was of a recommendatory nature. It talked of a normal situation and that is why word "should" was used in it. Any admission made by the Institute beyond 31st Aug. 1988, would not have been rendered illegal.
10. Undoubtedly the academic year 1988-89 is about to finish. We are informed by the learned counsel appearing for the Institute that the last semester examination for the said year will come to an end on or before 30th May, 1989. The question, therefore, of the petitioner being admitted during the year 1988-89 does not arise. However, we feel that the Institute should be directed to admit the petitioner as an undergraduate in paint Technology, the course for which he had been sponsored by the Director of Madhya Pradesh. The admission shall be in the academic year 1989-90. The Institute shall proceed on the footing that the petitioner had been duly nominated for admission during the said academic year 1989-90. The petitioner will have to face an interview, if such is the practice of the Institution.
11. With these direction the petition is disposed of finally.
12. There shall be no order as to costs.
13. Order accordingly.