Allahabad High Court
Chairman, Admission Committee, ... vs Shailesh Kumar on 5 May, 1999
Equivalent citations: 1999(3)AWC1919, (1999)3UPLBEC1992
JUDGMENT N.K. Mitra, C.J. and S.R. Singh, J.
1. Challenge in the instant Special Appeal is directed against the judgment and order dated 23.12.1998 of the learned single Judge passed in Civil Misc. Writ Petition No. 30230 of 1908, Shailesh Kumar v. Chairman, Admission Committee, Combined Entrance Examination (C.E.E.). 1998 Moti Lal Nehru Regional Engineering College, Allahabad and another, by means of which the petition was disposed of attended with a direction to the appellant herein to allow the petitioner to take admission to first year of the four year course of B.E./B. Tech, etc., in Moti Lal Nehru Regional Engineering College (in short the M.L.N.E. College, Allahabad), Allahabad within a week.
2. A brief resume of the necessary facts is that the respondent Shailesh Kumar, having passed High School and Intermediate Examinations in the first division, appeared consequent upon being allotted Roll No. 130525 in the Combined Entrance Examination (C.E.E.), 1988. The examination as sponsored by the appellants for admission of students to first year of the four-years course of B.E/B, Tech.. etc., in various Engineering Colleges in Uttar Pradesh and various other Regional Engineering Colleges in India. It would appear that the respondent romped home in the examination for admission under O.B.C. quota and his name figured at Serial 985 of the merit-list. Then followed the counselling in which process candidates ranking higher in merit, were appropriated to one or the other Engineering Colleges. One seat remained vacant in M.L.N.E. College, Allahabad, but it was not divulged to the respondent at the time of counselling, and he was denied admission in the said college on the mendacious ground that no seat in the said college was left to be filled. The case of the appellants before the learned single Judge was that the respondent at the time of his counselling held on 7.8.1998 was offered admission in any of the Private Colleges in U. P. against a free seat but he declined to take admission in any of the private Engineering Colleges ; that 167 students had been already admitted in M.L.N. Engineering College. Allahabad as against the sanctioned strength of 160 seats ; that no seat was vacant in the college and, that the rank of the last student admitted in the College was 384 while that of the writ petitioner was 985 and hence he could not be admitted in M.L.N.E. College, Allahabad, in that many meritorious students were denied admission. In the Special Appeal, a new plea has been raised that the seat against which the respondent staked his claim for admission in M.L.N.E. College. Allahabad was "reserved for U. P. Scheduled Caste-Freedom Fighter".
3. The learned single Judge recorded a finding of fact that "It is wrong to say that there was no seat available on the date of counselling dated 7.8.1998 and at that time, all other candidates higher in merits had already given their choice for some other institution". The learned single Judge further held that since no subsequent change of institution was permissible under any situation in view of paragraph 14.3 of the information Brochure, the candidates higher in merit than the respondent herein who had already taken admission elsewhere would not be entitled to change their Institutions and get admission in Moti Lal Nehru Engineer College, Allahabad. The petitioner was, therefore, held entitled to get admission in the vacant seat available at Moti Lal Nehru Engineering College, Allahabad.
4. The learned counsel appearing for the appellants submitted before us that the vacant seat in M.L.N. Engineering College. Allahabad was intended to accommodate drop-out candidates and the respondent was, therefore, not entitled to claim admission against the said seat. It was further submitted that the candidates higher in merit were earlier denied admission in the Institution and in the fact-situation of the case, learned single Judge was not Justified in directing the appellants to admit the respondent to first year of B.E./B, Tech course. The learned counsel took aid of a decision of the Supreme Court in Thaper Institute of Engineering and Technology, Patiala v. Abhinav Taneja, AIR 1990 SC 1222, to reinforce his contention that in the fact-situation of the present case, the learned single Judge was not right in directing the appellants herein to admit the petitioner-respondent in the College in question. The decision whereon credence was placed by the learned counsel for the appellant does not, in our view, apply to the facts of the present case for in that case "The students who were at a higher serial number of merit-list, were still waiting for admission to the appellant Institute and the High Court directed the appellant Institute to admit the respondent students". In the instant case, the finding of fact recorded by the learned single Judge is that the students higher in merit had already been admitted in various colleges when the respondent therein appeared for counselling on 7.8.1998 and further finding recorded by the learned single Judge is that according to Information Brochure, the students higher in merit already admitted in other colleges, would not be entitled to change their Institutes, The other distinguishing feature is that in the case before the Supreme Court, the writ petitioners in the High Court "had claimed no further relief than that they should be directed to be admitted to the appellant institute according to their merit" but the High Court "not only ignored the facts which were specifically pointed out for the appellant institute's affidavit in reply before it that there mere no seats available in the appellant institute whose capacity mas onfy 180 seats but also the fact that there were more meritorious students than the respondents as per the C.E.T. mho could not secure admission and who uiere waiting to be admitted to the appellant-Institute". It was in the fact-situation of that case that the Supreme Court was pleased to observe that "the High Court could have directed only two students to be admitted and that too on merit". It was a fact in that case that there were more meritorious students than the respondents waiting in queue". Concededly, in the Instant case, students higher in merit than respondent herein, had already secured their admission elsewhere and the appellants could not place any record before the Court to vouch for the fact that any student higher in merit was waiting to be admitted in M.L.N. Engineering College on the date respondent was called for counselling. In the above perspective, the case law relied on for the appellants has no application to the present case.
5. The learned counsel for the appellants then switched gear to the submission that the seat on which the respondent-petitioner herein has staked his claim for admission is a seat reserved for U. P. Scheduled Caste-Freedom Fighter'. This submission made by the learned counsel does not appear to have been canvassed before the learned single Judge and the allegation in this regard has been brought to bear for the first time in the Supplementary. Affidavit filed in the Special Appeal. Any such plea having not been pressed into service before the learned single Judge, it would be pricking, at the balloons of fairness to allow the appellants to raise a new plea not taken in the counter-affidavit filed in the writ petition. The question sought to be raised herein being in fact a factual question not agitated before the learned single Judge, we are not disposed to entertain the submission that the seat in question was ear-marked for U. P. Scheduled Caste-Freedom Fighter. It may be pertinently observed that this plea of the appellants completely demolishes their stand that there was no seat vacant in M.L.N.E. College. Allahabad. Further, it is noteworthy that it was conceded by the learned counsel for the appellants in course of arguments that no candidate belonging to "U. P. Scheduled Caste-Freedom Fighter" was available and. therefore, assuming for the sake of argument that the seat was reserved for U. P. Scheduled Caste-Freedom Fighter, we are of the view that in the absence of any candidate belonging to that quota, the appellants, in our opinion, were not justified in denying admission to the respondent in the vacant seat. There was no water-shed of minimum merit ear-marked for admission to Regional Engineering College including M.L.N. College Allahabad. It is in the domain of possibility that the candidates higher in merit may have been denied admission to M.L.N. Engineering College. Allahabad but no such candidate invoked the procedure of this Court for intervention and the seat was allowed to remain vacant on the date, the respondent herein was called for counselling. There being no candidate higher in merit forthcoming on the date the respondent was called for counselling, the appellants could not lawfully refuse admission to the respondent who romped home in the competitive examination.
6. The learned counsel for the appellants then submitted that it would be too late in the day now to admit the respondent for the Session is nearlng completion and he would not be able to complete the quota of 90 teaching days in his first semester as per G.O. No. 756/98-16-1-35/98, dated 24.2.1998. In the fact-situation of the case, we are of the considered view that the appellants cannot be permitted to capitalise on their own fault. As pointed out above, a seat was vacant in the M.L.N. Engineering College, Allahabad, which at the time of respondent's counselling on 8.7.1998 ought to have been disclosed to the respondent at the time of counselling giving him a choice to opt for the vacant seat. The respondent was illegally denied admission in the Institute even though no candidate higher in merit was at that time available for admission qua the vacant seat. We are. in the fact-situation of this case, not impressed by the submission that the petitioner respondent should be denied admission because the session has already gone through a long way. The writ petition, it may be pointed out, was filed on 16.9.1998 and the judgment was delivered on 23.12.1998. There was no laches on the part of the writ petitioner. The decision in Dr. Pramod Kumar Joshi v. Medical Council of India and others, (1991) 2 SCC 179, reliance on which was placed by the learned counsel for the appellants, is not quotable as binding precedent in the fact situation of the present case where the respondent approached the Court without any delay and laches on his part.
7. It may also be stated here that the appellants have been taking inconsistent stand on the question of existence and nature of vacancy. In the supplementary counter-affidavit dated 13.10.1998, filed on behalf of the appellants before the learned single Judge, it was articulated that the total number of home state seats for B.E. first year students in M.L.N.R.E. College, Allahabad was 160 as against which 167 students were admitted and subsequently one of them left the Institution with the result that the number of admitted students in B.E. first year tailed off to 166, The learned counsel for the appellants, however, admitted that according to the resolution passed by Board of Governors in their meeting held on 15:6.1998. there was an increase in the State quota seats by 5%. The 5% of the total 160 seats comes to 8 and thus total number of seats in the college comes to 168 including 5% additional created pursuant to the resolution dated 15.6,1998 passed on the basis of the G.O. dated 1906/16-Pravadik Shiksha-1-35/1998 Pravadik Shiksha Anubhag 8, Lucknow, dated June 25, 1998, whereby the Governor was pleased to lend approval to increase in the total number of seats upto 10% of course. keeping in view the possibility of drop-outs. The 5% additional seats so created were taken by the college as addition to the permanent sanctioned strength of 168 and admissions were made accordingly. The total number of students admitted in the college being 167, one seat was still available. One of the 7 students admitted against the additional seats left the Institution but the respondent's claim was not qua the vacancy so occasioned but against one of the 8 additional seats created vide resolution dated 15.6.1998. It is not that admissions were made against additional seats after equal number of students already admitted, left the Institution. The argument that there was no vacancy is born of misconception. The appeal is liable to be dismissed with cost since the respondent has suffered due to unjustifiable stand of the appellants.
8. In the result, the appeal fails and is dismissed with costs. The appellants are directed to admit the petitioner-respondent forthwith to first year of four year course of B. Tech etc. If necessary, along with the next batch of students.