Delhi High Court
Varun Kumar Agarwal vs Union Of India & Ors on 3 March, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 21st February, 2011
Judgment delivered on: 3rd March, 2011
+ LPA 599/2010
VARUN KUMAR AGARWAL ... Appellant
Through Mr.Arvind K. Nigam, Sr. Adv.
with Mr. Rohit Singh, Mr.Abdesh
Chaudhary, Mr.Raghu Tandon,
Advocates
versus
UNION OF INDIA & ORS ... Respondents
Through Mr.A.S. Chandhiok, ASG with
Mr.B.V. Niren, Mr.Sandeep Bajaj,
Advs. for Respondent Nos. 1 & 2
Mr. Mehmood Pracha, Standing
Counsel and Mr.Sandeep Mittal,
Adv. for Respondent Nos. 3 & 4
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
In this intra-court appeal, the assail is to the order dated 9th August,
2010 passed by the learned Single Judge in WP (C) No. 4272/2010
whereby he had declined to accede to the reliefs sought by the writ
petitioner (hereinafter referred to as „the appellant‟), principally the relief
LPA 599/2010 Page 1 of 19
to give him admission in MS/MD course at All India Institute of Medical
Sciences (AIIMS).
2. Sans unnecessary details, the facts which are necessary to be stated
for disposal of the present appeal are that the appellant had appeared in
the entrance examination held by the AIIMS for admission to the post
graduate course commencing in the academic session in July, 2010. The
appellant had secured 179 rank in the merit list and was called for
counselling. As pleaded in the writ petition, the original counselling was
scheduled for 11th June, 2010 but was postponed to 18th June, 2010 due to
difference of opinion between the Respondent No.2 - Director General of
Medical Education (DGME) and the Respondent No.3 - AIIMS. It was
contended that the AIIMS had filled up the seats by students who were
not eligible to be admitted. It was also averred that the AIIMS had
expanded the zone of consideration of the students by changing the
contents of the prospectus which was not permissible; that the students
who had already taken admission in other colleges were called for
counselling; that a maladroit attempt had been made to accommodate the
AIIMS students by deviating the procedure which was impermissible;
that some students had taken admission by misrepresentation inasmuch as
while they had taken admission in other colleges, they had not clearly so
LPA 599/2010 Page 2 of 19
stated.
3. The said assertions were opposed by the respondents contending,
inter alia, that the prospectus uses the words "are pursuing" which is
more than taking admission since the term „pursue‟ has a different
meaning, namely, carry on further or continue a course of action; that
there had been no ingenious effort to accommodate the students of
AIIMS; that the seats have been filled as per the prescribed procedure;
that the seats are not allowed to go waste; and that it is the principle of
AIIMS to attract the best talent in the country.
4. The learned Single Judge dealt with all the aforesaid aspects and
did not find any merit in any of the grounds and, accordingly, dismissed
the writ petition.
5. This Court, in course of the appeal, on 6th December, 2010, had
passed the following order:
".....In course of hearing of this appeal, the issues that
emerge for consideration fundamentally are whether the
third respondent, namely, All India Institute of Medical
Sciences (for short "AIIMS") in the name of „institutional
preference‟ can take recourse to reservation; to elaborate,
AIIMS has an institutional preference in respect of Post
Graduate seats at 50% of its MBBS seats but does not it
necessarily mean that the 50% of seats are to be filled up
from the students who have graduated from AIIMS ignoring
LPA 599/2010 Page 3 of 19
the merit list in its entirety or some kind of rationale has to
be conceded while determining the basic concept of
„institutional preference‟; whether there is any kind of
„institutional preference‟ with regard to a particular stream
or discipline; whether the third respondent was justified in
changing the prospectus after the merit list was published by
changing the ratio of the students to be called from 1:4 to
1:8; and whether the AIIMS should have gone for counseling
for the vacant seats or carried forward such seats for the next
year.
Be it noted, the submission of Mr. Arvind K. Nigam. learned
senior counsel for appellant would be because of adopting
such a recourse, the case of the appellant has been
jeopardized as he has not been able to feature in appropriate
stream in the merit list and, in any case, the AIIMS could not
have adopted such a mode.
Per contra, Mr. Sunil Fernandes, learned counsel for AIIMS
would submit that despite the enhancement of the ratio, the
case of the appellant is not affected and as no prejudice is
caused to the appellant, and hence, this Court would not
advert to the same.
Quite apart from above, the issue that has further emanated
for consideration is with regard to the possibility of holding
a simultaneous examination for the AIIMS‟ students as well
as the students who undertake the All India Post Graduate
Medical Entrance Examination, for which the AIIMS is the
examining body.
Mr. Atul Nanda, learned standing counsel for Union of
India, the first respondent herein and Mr. Sunil Fernandes,
learned counsel for respondent no.3, AIIMS have agreed that
both the parties shall hold a joint meeting and come with the
feedback within a week hence...."
6. After the said order came to be passed, a meeting was convened
and thereafter, on 11.1.2011, this Court directed the AIIMS to produce
LPA 599/2010 Page 4 of 19
the relevant records relating to admission.
7. An affidavit has been filed by the respondent No.1 - Union of
India. The said affidavit refers to the meeting held with the
representatives of the AIIMS and the agreements that have been arrived
at. The said affidavit refers to the solution for curbing wastage of seats,
the difficulties in holding common AIIMS Post Graduate Entrance
Examination and All India Post Graduate Entrance Examination and the
structural differences in the examination schemes followed by the AIIMS
for PG Entrance Examination and All India PG Quota. We think it
appropriate to reproduce the structural differences in the examination
schemes which also refer to the institutional preference. The said
paragraph reads as under:
"Further, there are structural differences in the examination
schemes followed by the AIIMS for PG entrance
examination & All India PG Quota, which are as under:
i) The eligibility criteria for UR/OBC candidates at
AIIMS is that he/she must obtain a minimum of 55%
marks in aggregate in all the MBBS/BDS professional
examinations and 50% marks for SC/ST while for All
India PG Examination, the eligibility criteria is that
he/she should have qualified MBBS/BDS
examination.
ii) As per Supreme Court judgment dated 24.08.2001 in
Civil Appeal No. 7366 of 1996, there shall be a
uniform minimum cut-off 50% marks in the
LPA 599/2010 Page 5 of 19
competitive entrance test as a condition of eligibility
for all candidates at AIIMS. While in All India PG
Exam, the same is 50% for UR and 40% for SC/ST
etc.
iii) By way of institutional preference, the institutional
candidates, i.e. those who have graduated from All
India Institute of Medical Sciences shall be preferred
for admission against 50% of total MBBS seats of
AIIMS out of the open general seats without any
discipline wise preference, in accordance with the
above mentioned judgment of the Hon‟ble Supreme
Court and subsequent judgment dated 07.05.2004 of
the Supreme Court in Saurabh Chaudhary Vs. Union
of India W.P.(C) No.29 of 2003 and connected
matters.
iv) All India PG entrance exam is done once in a year i.e.
January each year while AIIMS PG entrance exam is
done twice in a year i.e. January Session and July
Session."
8. A reply has been filed by the appellant that the stand taken by the
Union of India before the learned Single Judge is totally different from
the affidavit filed in the present appeal and does not really deal with the
issue that has emerged in this case. At this juncture, we may note with
profit that an additional affidavit has been filed by the appellant giving
the names of students who had taken admission in other colleges and paid
fees but had also been permitted to appear in the counselling for the seats
in AIIMS contrary to the stipulates in the prospectus.
9. Questioning the defensibility of the order passed by the learned
LPA 599/2010 Page 6 of 19
Single Judge, Mr. Arvind Nigam, learned senior counsel, has raised the
following contentions:
(a) The AIIMS authorities could not have changed the prospectus in
the midway after publication of the results on the date of
counselling as that affects the norms prescribed in the prospectus
and further creates an atmosphere of impropriety by which the
meritorious students are deprived of admission and students much
below in the rank are given admission.
(b) The interpretation placed by the learned Single Judge on "are
pursuing" is totally erroneous inasmuch as the students who had
taken admission in other colleges should be regarded to be
pursuing the studies and an artificial interpretation cannot be
placed on the ground that courses had not commenced and,
therefore, it cannot be construed that they are pursuing their
studies.
(c) Results ought not to be declared beyond 336 candidates but
unfortunately, the AIIMS did not adhere to the same and called the
candidates for counselling by increasing the ratio of the candidates.
(d) The total seats available in MS/MD courses were 125 in number,
LPA 599/2010 Page 7 of 19
43 in the reserved category and 82 in the unreserved category and
had the same been strictly followed, the appellant would have been
entitled for a seat in the stream he sought the admission.
(e) The learned Single Judge, despite the averments made in the writ
petition to the said effect, has fallen into error by not dealing with
the same.
(f) The AIIMS in the name of getting best talent based on merit
throughout the country has really destroyed the said concept of
merit by extending the ratio only to accommodate the AIIMS
students which is impermissible.
10. Mr. Mehmood Pracha, learned standing counsel for AIIMS, per
contra, contended that the interpretation placed by the learned Single
Judge on the words "are pursuing" is absolutely infallible since mere
admission into a course could not tantamount to pursuing a course. The
AIIMS has not committed any illegality by calling more number of
candidates for counselling as it was to meet the institutional preference
for AIIMS and to attract the best talent of the country. It is also urged
that the appellant could not have got admission in the post graduate
surgery course on the basis of his placement in the merit list.
LPA 599/2010 Page 8 of 19
11. Though we have referred to the pleadings and the submissions
raised at the bar, yet we are of the considered opinion that the whole
controversy can be addressed on the determination of a singular issue,
i.e., whether the AIIMS could have changed the prospectus for the
purpose of counselling after results are published and what would have
been the sequitur had there been strict adherence to the stipulations in the
prospectus. To appreciate the said aspect in proper perspective, we have
carefully gone through the prospectus. Clause 12(E)(1) of Section VI
prescribes the method of counselling. It reads as follows:
"E. Method of Counselling:
1. In each category the number of candidates called for
counselling will be 4 times the number of seats. The order
of counselling will be ST/SC/OBC/General/50% AIIMS
preferential candidates of total MBBS seats of AIIMS. The
candidates in order of merit will exercise their choice of
subject according to availability of seats in their respective
category. In case of absence the next candidate in merit will
be considered. Counselling will be held as per schedule
given under „AT A GLANCE".
12. It is not in dispute that the appellant was placed at 179 position in
the merit list in the General category. It is also not in dispute that there
were 125 seats, 43 in the reserved category and 82 in the unreserved
category. It is also not disputed by the parties in the course of arguments
that initially, the result of 326 candidates in the unreserved category was
published.
LPA 599/2010 Page 9 of 19
13. On 11th June,2010, AIIMS issued a corrigendum mentioning that
for the purpose of counselling, instead of calling four candidates per seat,
eight candidates would be called and published the result of 658
candidates. Had the original conditions furnished in the prospectus been
followed, 326 candidates would have been allowed to participate in the
counselling and the appellant being at 179 rank would have got a seat of
his choice in general surgery as the persons who have been placed at the
ranks of 446 and 605 have been allotted seats in general surgery and a
candidate at 472 rank was allotted ophthalmology.
14. Presently we shall refer to certain authorities in the field that have
dealt with sanctity of a prospectus or brochure and the legal impact when
it is changed in the midstream. In Dr. M. Vannila v. Tamil Nadu Public
Services Commission, 2007 (3) CTC 69, a Division Bench of the High
Court of Madras has opined thus:
"19. The principle that the prospectus is binding on all
persons concerned has been laid by the Supreme Court in
Punjab Engineering College, Chandigarh vs. Sanjay Gulati
(AIR 1983 SC 580 = 1983 (96) LW 172 S.N.). Following
the same, a Division Bench of this Court has also observed
in Rathnaswamy, Dr. A. Vs. Director of Medical Education
(1986 WLR 207) that the rules and norms of the prospectus
are to be strictly and solemnly adhered to. The same view is
also taken by another Division Bench of this Court in
Nithiyan P. and S.P. Prasanna vs. State of Tamil Nadu (1994
WLR 624). The same principle is reiterated in the case of Dr.
LPA 599/2010 Page 10 of 19
M. Ashiq Nihmathullah vs. The Government of Tamil Nadu
and Ors. reported in 2005 WLR 697. It is clear that the
prospectus is a piece of information and it is binding on the
candidates as well as on the State including the machinery
appointed by it for identifying the candidates for selection
and admission."
[Underlining is ours]
15. In Indu Gupta v. Director Sports, Punjab and Anr., AIR 1999
P&H 319 (FB), the Full Bench in paragraphs 9, 10 and 11 has expressed
thus:
"9. A Full Bench of this Court in the case of Raj Singh v.
Maharshi Dayanand University, (1994) 4 Recent Services
Judgments, 289 disapproved the liberal construction of the
terms and conditions of the brochure and specified the need
for their strict adherence to avoid unnecessary prejudice to
the candidate or the authority during the course of
admission. The bench approved that the eligibility for
admission to a course has to be seen according to the
prospectus issued before the entrance test examination and
that the admission has to be made on the basis of the
instructions given in the prospectus having the force of law.
While disapproving the law laid down by a Division Bench
of this Court in the case of Madhvika Khurana (minor) v. M.
D. University Civil Writ Petition No. 15367 of 1991, where
contrary view had been taken, the Full Bench observed that
the students seeking admission to the professional colleges
are even otherwise matured enough and supposed to
understand the full implication of filling the admission form
and compliance with the instructions contained in the
brochure.
10. Subsequently, another Full Bench of this Court in the
case of Rahul Prabhakar v. Punjab Technical University,
Jalandhar, 1997 (3) RSJ 475: (AIR 1998 Punj. & Har. 18)
LPA 599/2010 Page 11 of 19
recapitulated the entire law on the subject. The Full Bench
was considering the same brochure for the previous year of
the Punjab Technical University. The Court held as under:-
"A Full Bench of this Court in Amardeep Singh
Sahota v. State of Punjab (1993) 4 Serv LR 673 had to
consider the scope and binding force of the provisions
contained in the prospectus. The Bench took the view
that the prospectus issued for admission to a course,
has the force of law and it was not open to alteration.
In Raj Singh v. Maharshi Dayanand University, 1994
(4) R.S.J. 289 another Full Bench of this Court took
the view that a candidate will have to be taken to be
bound by the information supplied in the admission
form and cannot be allowed to take a stand that suits
him at a given time. The Full Bench approved the
view expressed in earlier Full Bench that eligibility for
admission to a course has to be seen according to the
prospectus issued before the Entrance Examination
and that the admission has to be made on the basis of
instructions given in the prospectus, having the force
of law. Again Full Bench of this Court in Sachin Gaur
v. Punjab University, 1996 (1) RSJ 1: (AIR 1996 Punj.
& Har. 109) took the view that there has to be a cut off
date provided for admission and the same cannot be
changed afterwards. These views expressed by earlier
Full Benches have been followed in CWP No. 6756 of
1996 by the three of us constituting another Full
Bench. Thus, it is settled law that the provisions
contained in the information brochure for the
Common Entrance Test 1997 have the force of law
and have to be strictly complied with. No modification
can be made by the court in exercise of powers under
Article 226 of the Constitution of India. Whenever a
notification calling for applications, fixes date and
time within which applications are to be received
whether sent through post or by any other mode that
time schedule has to be complied with in letter and
spirit. If the application has not reached the co-
ordinator or the competent authority as the case may
be the same cannot be considered as having been filed
LPA 599/2010 Page 12 of 19
in terms of the provisions contained in the prospectus
or Information Brochure. Applications filed in
violation of the terms of the brochure have only to be
rejected."
11. The cumulative effect of the above well enunciated
principles of law, is that the terms and conditions of the
brochure where they used preemptory language cannot be
held to be merely declaratory. They have to be and must
necessarily to be treated as mandatory. Their compliance
would be essential otherwise the basic principle of fairness
in such highly competitive entrance examinations would
stand frustrated. Vesting of discretion in an individual in
such matters, to waive or dilute the stipulated conditions of
the brochure would per se introduce the element of
discrimination, arbitrariness and unfairness. Such
unrestricted discretion in contravention to the terms of the
brochure would decimate the very intent behind the terms
and conditions of the brochure, more particularly, where the
cut off date itself has been provided in the brochure. The
brochure has the force of law. Submission of applications
complete in all respects is a sine qua non to the valid
acceptance and consideration of an application for allotment
of seats in accordance with the terms prescribed in the
brochure.
[Emphasis added]
16. We have referred to the aforesaid decisions only to highlight that
the conditions stipulated in the prospectus are guidelines for all concerned
and everyone is required to follow the same in letter and spirit and not act
in transgression. The hopes and aspirations of the students, who came
within the zone of merit, cannot be scuttled by changing the prospectus
by way of introducing a corrigendum. A change in the conditions of the
prospectus can be conceived of and allowed if such power is specifically
LPA 599/2010 Page 13 of 19
reserved while making the prospectus public as in that case, no one can
think of having a right. In that event, the same could be capable of
change. In the case at hand, in the absence of a power reserved in the
prospectus, in our considered opinion, the same could not have been
altered by way of corrigendum. It is interesting to note that by issuing a
corrigendum, the scenario of results changed because further results were
published and more candidates were called. This, according to us, is
nothing but an accommodation. The AIIMS may have been conferred the
privilege of institutional preference, but that would not enable AIIMS to
change the prospectus in the manner it has been done. Thus, the action of
the AIIMS on this score is vitiated and despite the laboured attempt by
the learned counsel for the AIIMS, we cannot give the stamp of approval
to the action of the institution.
17. The next issue that arises for consideration is what relief could be
granted to the appellant. In the course of hearing, Mr. Nigam, learned
senior counsel, after obtaining instructions, submitted that the appellant
has no objection to be admitted in surgery, gynaecology or orthopaedics.
Had the appellant been treated in his rank, he could have got his choice.
The same was denied to him by extension of the ratio in the prospectus.
In this context, we may profitably refer to the decision rendered in LPA
LPA 599/2010 Page 14 of 19
No. 726/2010 titled Dr. Mundhe Kailas Maharudra v. AIIMS & Ors.,
decided on 29th November, 2010, wherein this Court opined thus:
7. This Court in LPA No.611/2010 (Tej Pal Yadav v. Union
of India & Ors. decided on 29.11.2010) while dealing with a
similar situation wherein a meritorious candidate was not
given admission due to the fault of the authorities has
held as follows:
"21. In Punjab Engineering College, Chandigarh v.
Sanjay Gulati, AIR 1983 SC 580, the Apex Court
has categorically held that the authority which
makes admission by ignoring the rules of admission
must pay for its own lapse and wrong caused and
injustice meted to the deserving candidates. In
the said case, their Lordships directed for increase
of strength as a course of solution. It is worth
noting that in the said case, a contention was
propounded that the Medical Council of India
would not sanction additional seats but the said
proponement was repelled. We think it apt to
reproduce the relevant paragraph from the said
decision:
"It is strange that in all such cases, the
authorities who make admissions by ignoring the
rules of admission contend that the seats cannot
correspondingly be increased, since the State
Government cannot meet the additional
expenditure which will be caused by increasing
the number of seats or that the institution will not
be able to cope up with the additional influx
of students. An additional plea available in
regard to medical colleges is that the Indian
Medical Council will not sanction additional
seats. We cannot entertain this submission.
Those who infringe the rules must pay for their
lapse and the wrong done to the deserving students
who ought to have been admitted has to be
rectified. The best solution under the
LPA 599/2010 Page 15 of 19
circumstances is to ensure that the strength of seats
is increased in proportion to the wrong
admission made."
22. In Anil Kumar Gupta v. State of UP, (1995) 5
SCC 173, the Apex Court, after coming to hold that
there were errors in the rule of reservation and its
implementation, dwelled upon the relief to be
granted when the admissions had already been
finalized. In that context, their Lordships held thus:
"At the same time, we have to rectify the
injustice done to the open competition candidates
in the admissions in question, to the extent
feasible. Accordingly, we direct that in the matter
of admissions made pursuant to C.P.M.T. 1994,
while the admissions already finalised shall not
be disturbed, the Uttar Pradesh Government
shall create thirty-four additional seats in the
M.B.B.S. course and admit thirty-four students
from the O.C. category against those seats. If any
seats are vacant as on today, they shall also be
filled from the O.C. category alone."
23. In Dolly Chhanda v. Chairman, JEE & Ors.,
(2005) 9 SCC 779, while finding that the appellant
was unjustly denied admission to an educational
course, their Lordships ruled thus:
9. The appellant undoubtedly belonged to
reserved MI category. She comes from a very
humble background, her father was only a Naik in
the armed forces. He may not have noticed the
mistake which had been committed by the Zilla
Sainik Board while issuing the first certificate
dated 29.6.2003. But it does not mean that the
appellant should be denied her due when she
produced a correct certificate at the stage of
second counselling. Those who secured rank
lower than the appellant have already been
admitted. The view taken by the authorities in
denying admission to the appellant is wholly
LPA 599/2010 Page 16 of 19
unjust and illegal.
10. The appellant had qualified in JEE-2003
but the said academic year is already over. But for
this situation the fault lies with the respondents,
who adopted a highly technical and rigid attitude,
and not with the appellant. We are, therefore, of
the opinion that the appellant should be given
admission in MBBS course in any of the State
medical colleges in the current academic year.
24. In Vijay Jaimni v. Medical Council of India
& Ors., (2005) 13 SCC 461, while noticing the
mistake in the determination of category, the Apex
Court directed as follows:
"5. Under these circumstances, we direct
Respondent 5 college to give admission to the
petitioner out of the said intake and under the
category to which the petitioner was entitled as per
the position in the last Academic Year 2004-2005.
The said college is further directed to charge from
the petitioner the fee which would have been
charged if admission had been granted in
Academic Year 2004-2005. The admission shall
be granted before 30.9.2005. The petitioner
shall comply with all the requirements."
8. At this stage, it is pertinent to refer to the case of
Dr.Manish Patnecha (supra), wherein the Division Bench
had directed as follows: -
"On the question of consequential relief that can
be granted to the appellant we find that there is no
denial by the respondent that the second session is
to commence in January, 2010 and that admissions
are to be made to the post graduate courses in
that session. The appellant, having succeeded in
showing that the denial of admission to him in
Nuclear Medicine in OBC category is unjustified is in
our view entitled to a direction to the respondent
to admit him to the said course in the next session.
LPA 599/2010 Page 17 of 19
This is held to be permissible by the Supreme Court
in both Vijay Jaimni and Harshali. Accordingly we
issue a direction to the respondent that the appellant
will be granted admission to the post graduate
course in Nuclear Medicine in one of the UR seats
in the next session commencing in the year
January, 2010. He will be permitted to participate in
the counselling that is to take place tomorrow i.e. 11th
December, 2009."
9. In view of the aforesaid decision, we are disposed to
think that the appellant cannot be denied his right which
was lawfully due to him and, therefore, we direct that
he should be permitted to participate in the counselling
for the purpose of subsequent examination i.e. the
examination held after May 2010 and be allotted a seat
in the Post-Graduate course in AIIMS in the general
category."
18. In view of the aforesaid position of law, we are inclined to direct
the AIIMS authorities to allot the seat in Post Graduate in AIIMS in the
general category either in Surgery or Gynaecology or Orthopaedics in the
next academic session, that is, the academic session beginning from July,
2011, to the appellant and it is so ordered.
19. As we have accepted the submission of the learned counsel for the
appellant on this issue, the other issues that have been raised are kept
open.
LPA 599/2010 Page 18 of 19
20. Resultantly, the appeal is allowed and the order passed by the
learned Single Judge is set aside. There shall be no order as to costs.
CHIEF JUSTICE
MARCH 03, 2011 SANJIV KHANNA, J.
pk LPA 599/2010 Page 19 of 19