Writ of Mandamus- directing University Authorities to admit student against vacant seats: High Court of Shimla
The University being directed to admit the students against available vacant seats, by resorting to the method prescribed for providing opportunity to the candidates, by offering available seats in order of merit, irrespective of the fact whether they have been admitted in SFS category. This honorable judgement was passed by High Court of Shimla in the case of Satakshi Sharma Versus CSK Himachal Pradesh Krishi Vishwavidyalaya [CWP No.687 of 2021] by The Hon’ble Mr. Justice Vivek Singh Thakur. The facts of the case were that after passing her 10+2 examination in March, 2019, has applied for admission in undergraduate courses, i.e. Bachelor in Veterinary Science and Animal Husbandry (BVSc. &amp; A.H.) and Bachelor in Science (Hons.), offered by respondent-University. During hearing, petitioner has confined her claim to admission to the course of B.Sc. (Hons) Agriculture. In the Entrance Test, conducted by the University for assessing the merit of applicants, petitioner had scored 109 marks. University also provided study in these programme through admission against seats offered under Self Financing Scheme on payment of prescribed extra fee in addition to the usual fee. Petitioner did not opt for SFS but applied for admission against General Category wherein last admitted candidate had secured 111 marks whereas in seats filled under SFS last admitted candidate was having marks lower than petitioner. Petitioner, being aggrieved by not permitting to opt for Self-Financing Scheme in Second Round of Counselling Round, has approached this Court with prayer for quashing of the condition as notified in Note-7 of Notice and direction to the University to allow the petitioner to opt for SFS category during Second Round of Counselling Round to be conducted on 8.2.2021 and to offer admission. The court was of the view that, “when University has planned to cover the loss of studies and classes for the students to be admitted against four self-financing seats available at the time of counselling, the University must be allowed and directed to admit the students against available vacant seats, as on date, in all categories, by resorting to the method prescribed for providing opportunity to the candidates, by offering available seats in order of merit, as per their entitlement, irrespective of the fact whether they have been admitted in SFS category or not.”
 Hig h C o urt of H.P on 31 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.6821 Reserved on : March 26 2021 Date of Decision : March 31 2021 Satakshi Sharma ….Petitioner. Versus CSK Himachal Pradesh Krishi Vishvavidyalaya ….Respondent. Coram: The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting Yes. For the Petitioner : Mr. Bipin C. Negi Senior Advocate with Mr. Vinod Kumar Thakur Advocate. For the respondent : Mr. Naresh K. Sharma Advocate. Vivek Singh Thakur Judge Petitioner herein after passing her 10+2 examination in March 2019 has applied for admission in undergraduate courses i.e. Bachelor in Veterinary Science and Animal Husbandryand Bachelor in Sciencein AgricultureAgriculture) offered by respondent UniversityAgriculture. In the Entrance Test conducted by the University for assessing the merit of applicants petitioner has scored 109 marks. Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …2… 2. Apart from providing study on usual charges in various programmes University also provides study in these programmes through admission against seats offered under Self Financing Schemeon payment of prescribed extra fee in addition to the usual fee. Admission to these seats is also done on the basis of merit amongst the applicants who opt for admission under SFS as per the mode of admission. 3. At the time of submitting online application for admission to B.V.Sc. & A.H. and B.Sc.Agriculture petitioner did not opt for SFS but applied for admission against General Category wherein last admitted candidate had secured 111 marks whereas in seats filled under SFS last admitted candidate was having marks lower than petitioner. 4. Petitioner being aggrieved by not permitting to opt for Self Financing Schemein Second Round of Counseling Mop Up Round has approached this Court with prayer for quashing of the condition as notified in Note 7 of Notice dated 3.2.2021and direction to the University to allow the petitioner to opt for SFS category during Second Round of Counseling Mop Up Round to be conducted on 8.2.2021 and to offer admission Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …3… to her under the SFS category on the basis of 109 marks scored by her as in the said category candidate having marks lesser than petitioner had already been admitted. 5. Admittedly University is offering Undergraduate Courses in various subjects such as B.Sc. Life SciencesB.Sc. Physical SciencesB.Tch.B.Sc.Community Science B.V.Sc. & A.H. and B.Sc.Agriculture. Admissions to these courses are made on the basis of merit. 6. The University for determining the merit has adopted two methods. For courses in B.Sc. Life SciencesB.Sc. Physical SciencesB.Tch.B.Sc.Community Science the University has adopted the method of determining of merit on the basis of marks obtained by the student applicant at the qualifying examination whereas for determining merit for admission to B.V.Sc. & A.H. and B.Sc.Agriculture a Common Entrance Test is conducted by the University. 7. Undoubtedly both the methods for determining the merit for admission are permissible under law. Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …4… University is free to adopt either of the methods for admission in all courses programmes or some of the courses programmes as also held by a Eleven Judge Benchof the Supreme Court in TMA Pai Foundation & others V. State Of Karnataka & others 8 SCC 481 in Para 59 which reads as under: “59. Merit is usually determined for admission to professional and higher education colleges by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by interview or by a common entrance test conducted by the institution or in the case of professional colleges by government agencies.” 8. After drawing merit list either on the basis of marks obtained in the qualifying examination or in Common Entrance Test for the purpose of granting admission to various categories system of counseling has been adopted by the University which as observed by the Supreme Court in Rajiv Mittal v. Maharshi Dayanand University & others 2 SCC 402 is now regarded as a most equitable one where options are given of various seats to the students in accordance with their overall merit position and if as a result of first counseling all the seats which are available are filled then no further counseling takes place where however some seats become available then it appears that second third or if the need arises fourth counseling does take place but in such a manner that normally there Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …5… should be no delay in commencement of the course of study. 9. University has issued two separate Brochures one for those courses where merit for admission is determined on the basis of qualifying examination and another for the courses where merit for the purpose of admission is determined on the basis of marks obtained in common entrance test. As stated supra both these methods are permissible for determining merit for admission. Till this stage there is no dispute herein. 10. Dispute starts hereafter where in the counseling process University has prescribed two different procedures for admission to the various courses programmes. 11. For admission to the undergraduate courses where merit is to be determined on the basis of marks obtained in qualifying examination as evident from Note vi(1) appended to Important Information contained in Information Brochure & Prospectus issued for Merit Based Admissions 2020 21which has been notified in Note 5 of Notice dated 20.1.2021issued for filling up seats through Final Round of Counseling Mop Up Round and also in Note 5 of Notice Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …6… dated 3.2.2021issued for filling up remaining vacant seats through Second Round of Counseling Mop Up Round an option has been provided to the candidates who had applied for these degree programmes but had not applied earlier under SFS category to apply for the same by depositing requisite fee on the spot within specified time on the day of Final Second Round of Counseling Mop Up Round. Conversely in case of admissions to be made to undergraduate courses on the basis of merit of Common Entrance Test as evident from Note ii appended in last of Important Information contained in Information Brochure & Prospectus issued for Entrance Test Based Admissions 2020 21which has also been reiterated in Chapter II of Brochure dealing with Admission and Enrolmentand has also been notified in Note 7 to Notice dated 3.2.2021issued for filling up vacant seats through Second Round of Counseling Mop Up Round such opportunity has been denied to the candidates by notifying that if a candidate has not opted for SFS at the time of filling online application form his her candidature for SFS shall not be considered in Final Second Round of Counseling Mop Up Round. Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …7… 12. Petitioner at the time of submitting application had not opted for SFS seat but she could not secure a subsidized seat in her category for availability of candidates having higher marks in the said category. Therefore she has been intending to opt for SFS as candidates having much lower merit than her i.e. 89 marks against her 109 marks have been admitted under SFS and some seats are available in SFS where for higher merit there is every likelihood of her admission in the said category but for condition in the Brochure as also notified in Note 7 of Notice dated 3.2.2021she was denied to opt for SFS seat which compelled her for filing present petition. 13. Learned counsel for the petitioner has contended that admission procedure adopted by the University by allowing applicants candidates to some undergraduate courses to opt for SFS even during Second Round of Counseling Mop Up Round irrespective of the fact whether they have opted as such earlier or not but denying to exercise such option to another set of applicants candidates to other undergraduate courses is not only arbitrary but also not meeting the Triple Test as envisaged by the Supreme Court in TMA Pai Foundation’s casewherein it has been held that admission Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …8… procedure should be fair transparent and non exploitative. According to the learned counsel for the petitioner there is no intelligible differentia between two sets of candidates and in prescribing different manners of counseling there is no relation between classification of two sets of candidates and the object sought to be achieved and therefore condition denying the petitioner and others to exercise option for admission to SFS seat is violative of Article 14 of the Constitution of India. According to him there cannot be two procedures of counseling having different terms and conditions that too to the equivalent courses being offered by the same Institution i.e. undergraduate courses in present case. 14. In response thereto it is stand of the University that University has issued two Information Brochures and Prospectus i.e. one ‘Entrance Test Based Admissions 2020 21’ and second ‘Merit Based Admissions 2020 21’ and for Entrance Test Based Admissions i.e. B.V.Sc. & A.H. and B.Sc.Agriculture etc. online applications were invited whereas for Merit Based Admissions to remaining undergraduate courses and other courses offline applications were invited and therefore these are two different categories for which University is having right to Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …9… adopt different kind of admission procedures and thus allowing to exercise option at later stage even if it is not exercised at initial stage to candidates in Merit Based Admissions and denying such right to the candidates to admissions on Entrance Test Based is permissible to the University. 15. Aspirants for admission to undergraduate courses either on the basis of marks obtained in qualifying examination which have been termed by the University as Merit Based Admissions or admissions on the basis of Common Entrance Test are not two different classes as both of them are seeking admission to undergraduate courses being offered by one and the same University. They are one class of admission seekers. So far as adopting of different methods for determining merit is concerned same is permissible as also held in TMA Pai Foundation’s case referred supra but for discussion hereinafter I am of the considered view that categorization of admission seekers and providing different procedure of counseling for admission to undergraduate courses is arbitrary and antithesis to equality clause of Fundamental Rights provided under Article 14 of the Constitution of India. Admission seekers to undergraduate courses are one class Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …10… who are situated on equal footing for the purpose of counseling after determining their merit as prescribed in the Brochure. These equals cannot be treated differently. They constitute a class as admission seekers and for inviting applications through different modes i.e. online and or offline they cannot be treated as a different class as inviting applications either online or offline is only a mode for receiving the applications by the University which may not be a basis for differentiation between admission seekers and therefore it is not a intelligible differentia. 16. Otherwise also plea of the University that in case of Entrance Test Based Admissions online applications were invited is also half truth being contrary to factual position. In Chapter II of Brochure dealing with ‘Admission and Enrolment’ placed on record by the University as Annexure R X it has been provided that for NRIs OCIs Foreign Nationals the application forms will have to be downloaded and submitted offline on or before 15.7.2020 whereas for online applications last date is 15.5.2020. Therefore plea of University with respect to difference in mode of inviting applications is not true. Even otherwise categorization of applications on this count is unrealistic and inconsiderate. Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …11… 17. So far as determination of merit through different modes is concerned that is again a question of adopting the permissible method for determining merit but it also does not divide the admission seekers in two different intelligible classes. Class of ‘admission seekers’ for the purpose of counseling remains the same. There is no plausible ground or explanation extended by the University for prescribing two different conditions during counseling process. The reason for that as claimed is not only illogical but also unsustainable. 18. The main object of entire exercise undertaken by educational institutions for admitting students is to ensure admissions on the basis of merit. Therefore main object of entire exercise is to admit the students on the basis of merit and system of counseling is a well recognized most equitable method for making such admissions. 19. There may be a case where a candidate having higher merit than the candidates who have applied for SFS seat initially may not get admission against normal seat and may be desirous to apply for SFS seat for probability of his her admission for having higher merit in such eventuality allowing such candidate to opt for SFS seat shall definitely ensure admission of some meritorious candidate Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …12… against SFS also whereas disallowing such candidates to exercise such option may be at a later stage may lead to admission of a candidate having lower merit at the cost of available meritorious candidate. It appears for that reason only the University has permitted to exercise such option in case of counseling process prescribed for undergraduate courses other than B.V.Sc. & A.H. and B.Sc.Agriculture but exercise of such option has been denied in these two courses for illogical and inconsiderate reasons. 20. Classification on the basis of methods adopted for determining merit and mode of receiving the applications either online or offline is not intelligible classification for differentiating admission seekers desirous to get admission in undergraduate courses offered by the University. At the cost of repetition it is reiterated that basic object of entire admission process is to ensure admission of meritorious candidates but as discussed supra disallowing the candidates to exercise such option at later stage to one set of applicants unlike another set of applicants is contrary to the main object of admission. Therefore there is no relation between the classification done by the University and the object sought to be achieved by the University. Article 14 of the Constitution of Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …13… India does not forbid ‘reasonable classification’ but it forbids ‘class classification’. Present case is of unreasonable classification rather it creates a class within class. However it is clarified that University is free to adopt a fair transparent and unexploitative process either way but without arbitrary artificial classification of admission seeker applicants candidates but such process must ensure preference to admit meritorious candidates. 21. In view of above discussion impugned condition notified by Note 7 of Notice dated 3.2.2021and also contained in the Admission Brochure is not sustainable and deserves to be quashed. Accordingly impugned condition is quashed with further direction that in future the University shall adopt uniform counseling process either way for admission to different programmes courses offered by it and admissions made till date for Session in reference shall not be disturbed however pending admissions shall be made by adopting the same process by which merit Based Admissions have been made as also directed hereinafter in given facts and circumstances. 22. On 5.2.2021 the first date of hearing petitioner was permitted to appear provisionally for Mop Up Round of Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …14… counseling scheduled on 8.2.2021 in the programme of B.V.Sc. & A.H. and B.Sc.Agriculture with rider that result of the petitioner shall not be declared without leave of the Court. 23. During pendency of the petition one seat of General Category in B.Sc.Agriculture had become available on 22.2.2021 for withdrawal of admission by one admitted candidate by submitting a written communication whereupon petitioner had sought liberty to represent to the University for considering her candidature against the said available seat. Vide order dated 10.3.2021 petitioner was permitted to represent to the Vice Chancellor as it was conveyed that there was no other provision for admission at this stage except permission by Vice Chancellor and it was expected that in order to avoid wastage of seat representation of the petitioner may be considered sympathetically. 24. Vide instructions dated 18.3.2021 received from the Registrar of the University learned counsel for the University has placed on record an order passed by the Vice Chancellor rejecting representation of the petitioner on the ground that admission to any vacant seat becoming available after 8.2.2021 cannot be made without adopting Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …15… proper procedure as laid down in the Information Brochure and Prospectus and giving wide publicity and in such eventuality the candidates already admitted under SFS seat having higher merit than petitioner will also have the opportunity to apply or opt for such seat but it is further stated that it was not possible to conduct any other round of counseling as half period of current semester is going to be over and mid term examinations of First Year B.Sc.Agriculture have already been scheduled to be held w.e.f. 18.3.2021. It is also stated in the order that there is no absolute power with the Vice Chancellor to give admission to any candidate without following proper procedure by giving opportunity to all the candidates to compete for admission through counseling on the basis of merit of entrance test. It is further stated that not only one seat of General Category has become available after 8.2.2021 but some other seats i.e. one more seat of General Category one of SFS category and one of ICAR category have also fallen vacant on 8.3.2021 24.2.2021 and 15.2.2021 respectively and these seats are in addition to four self financing seats against which counseling has already been held on 8.2.2021 wherein 12 candidates including petitioner have participated and out of which five Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …16… candidates including the petitioner had not applied for SFS category at the time of filling their online application forms in accordance with the provisions contained in the Information Brochure however result of this round of counseling has not been declared so far due to orders passed in present petition. 25. In aforesaid circumstances vide order dated 25.3.2021 learned counsel for the University was directed to clarify stand of the University with regard to admissions in pursuance to counseling held on 8.2.2021 at this stage because at one hand Vice Chancellor has been taking stand that it is not possible to conduct another Round of Counseling for the reason that half period of current Semester is going to be over and midterm examination has been scheduled and on the other hand for the same course for the Self Financing Seats University has been intending to complete the process on the basis of counseling conducted on 8.2.2021. 26. In response thereto it has been communicated that University has planned to cover the loss of studies and classes by providing extra classes to the students to be admitted at this stage as according to the University admissions on the basis of counseling held on 8.2.2021 Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …17… have been withheld for interim order passed by this Court and shall be made after and subject to orders passed by the Court. 27. From response of the University it is clear that there is possibility of covering the loss of studies and number of classes by providing extra classes by the University for the students to be admitted at this stage. 28. In the aforesaid circumstances it is clear that last counseling has been held by the University on 8.2.2021 and studies for the courses have commenced however it is also clear that University has a concrete plan to cover up the loss of studies of the students to whom admission at this stage may be permitted. Admission has been delayed for filing of present Writ Petition for the cause raised by the petitioner which as discussed above has been found to be justified by the Court as condition denying the right to exercise option at subsequent stage has been found to be untenable and has been quashed. Therefore delay in admissions cannot be attributed to the petitioner but it has happened for omission and commission on the part of the University. 29. Therefore in the aforesaid circumstances it would be appropriate to refer observations of the Supreme Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …18… Court relied upon by the petitioner in pronouncement in Asha v. Pt. B.D. Sharma University of Health Sciences & othes 7 SCC 389 which read as under: “30. There is no doubt that 30th September is the cut off date. The authorities cannot grant admission beyond the cut off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons should the cut off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate is the question we have to answer. 31. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible we are of the considered view that the cut off date cannot be used as a technical instrument or tool to deny admission to meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821 792 752 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission. 32. Though there can be rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut off date of 30th September but in those cases the Court must first return a finding that no fault is attributable to the candidate the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate it would be completely unjust and unfair to deny such exceptional relief to the candidate.2 SCC 484 Chhavi Mehrotra v. DG Health Services 2 SCC 370 and Aravind Kumar Kankane v. State of UP 8 SCC 355 33. We must hasten to add at this stage that even if these conditions are satisfied still the court would be called upon to decide whether the relief should or should not be granted and if granted should it be with or without compensation.” 30. In view of above I am of the considered view that when University has planned to cover the loss of studies and classes for the students to be admitted against four self financing seats available at the time of counseling held on 8.2.2021 the University not only should but must be allowed and directed to admit the candidates students against available vacant seats as on date in all categories by resorting to the method prescribed for providing opportunity to the candidates by offering available seats in order of merit as per their entitlement irrespective of the fact whether they have been admitted in SFS category or not and in case a student already admitted in SFS category is entitled to a seat in normal category the seat to be vacated by him her shall be offered to the next desirous candidate in merit. Additional vacant seats which have become available after 8.2.2021 shall also be filled by adopting due process as applicable simultaneously. The aforesaid exercise shall be undertaken by the University on Hig h C o urt of H.P on 31 03 HCHP CWP No.687 2021 …20… or before 6th April 2021 once for all and no further admission shall be made thereafter. Needless to say the candidates who have not opted for SFS seat at the initial stage at the time of filling form shall be permitted to exercise such option if desired so. Petition stands disposed of in the aforesaid terms so also pending application if any. March 31 2021(sd) Judge. 