Punjab-Haryana High Court
Indu Gupta vs Director, Sports Punjab And Anr. on 31 May, 1999
Equivalent citations: AIR1999P&H319, AIR 1999 PUNJAB AND HARYANA 319, (1999) 4 SCT 113, (2000) 1 ESC 253, (1999) 4 SERVLR 233
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. A simple but important question of far-reaching consequences arises for consideration in the present writ petition. The Division Bench of this Court while hearing the present case viz C.W.P. No. 9699 of 1997 titled Indu Gupta v. Director Sports, Punjab etc. found it difficult to follow the view expressed by another Hon'ble Division Bench of this Court in the case of Punjabi University, Patiala v. Gurbinder Singh, L.P.A. No. 770 of 1995 and Ms. Mukta Bansal v. State of Punjab C.W.P. No. 12093of 1997. Resultantly, the bench hearing Ms, Indu's case passed the following order of reference to a larger bench.
"Petitioner applied for admission to B. Tech. Course. She claimed the benefit of reservation in the sports category. She could not get the gradation certificate countersigned by the Director of Sports, Punjab. So, she was not considered for admission in the reserved category of sports personnel. The argument advanced by the counsel representing petitioner is that gradation certificate is based on her performance in the sports meets and it is only one evidencing the existence of facts entitling her to the benefit of reservation. So, the condition that gradation certificate should be sent along with the application form for admission is only a formality and candidate need produce the gradation certificate only at the time of admission. In support of the contention, he relies on the observations made by the learned single Judge of this Court in Civil Writ Petition No. 11787 of 1995 decided on September 8, 1995. In the L.P.A. filed against that judgment by the Punjabi University, Patiala, the Division Bench agreed with the reasons given by the learned single Judge.
In Civil Writ Petitions Nos. 9211 of 1997 (Daljit Singh) v. (State of Punjab, decided on August 26, 1997 and 12093 of 1997 (Ms. Mukta Bansal v. (State of Punjab), decided on August 28, 1997, other D. Bs. took the view that application for admission should have the copy of the gradation certificate issued by the Director of Sports, and failure to send the gradation certificate along with the application is fatal and that candidate who produces the gradation certificate after the submission of the application is not entitled to the benefit of reservation, as a sports person. In view of this divergent view, we refer this case to a Full Bench, for consideration."
2. As is apparent from the order of reference that the case itself has been referred for decision to the Full Bench, we consider it appropriate to give certain further facts giving rise to this writ petition.
3. The petitioner Indu Gupta had participated in various events of table tennis Championship at Junior State and National Table Tennis Championship, 1996. The petitioner in all these events had participated and represented Union Territory of Chandigarh and was admittedly resident of Union Territory, Chandigarh for entire period of her education. She passed 10+2 examination as a regular student of Government Model Senior Secondary School, Sector-18, Chandigarh. For the purpose of getting admission to the professional colleges under the sports category, it is necessary that the applicant should submit sports gradation certificate issued by the Director, Sports, Union Territory, Chandigarh. According to the petitioner, she was also entitled to get a seat in the Sports quota in the professional colleges in the State of Punjab and the Director, Sports, Punjab was obliged to countersign the gradation certificate in accordance with the policy of the State of Punjab dated 4th August, 1992, Annexure P/14 to the writ petition. She submitted her gradation certificate for countersignatures on 27th June, 1997 under diary No. 5660, but the respondent-Director, Sports, Punjab did not sign the certificate and as such she could not produce the certificate on the date of her interview at Punjab Technical University, Jalandhar on 5-7-1997. Having failed to get the relief at the hands of the respondents, she filed the present writ petition with the prayers that respondent No l, Director, Sports, Punjab be ordered to countersign the gradation certificate issued by the Director, Sports, Union Territory, Chandigarh and further the Punjab Technical University, Jalandhar, respondent No. 2 be directed to keep one seat reserved for the petitioner in the B. E. Course.
4. Upon notice, the respondents contested the reliefs claimed by the petitioner. The stand of the Director, Sports, Punjab is that each State Sports Council in every State or Union Territory has its own rules and regulations for providing incentive to those sports persons, who brings laurels to their State by winning medals and prizes. It is further averred that the reservation for the sports category for admission to the professional colleges is a concession and not a right vested in the petitioner. The candidates, who are resident of Punjab and represent the State of Punjab would alone be graded for issuance of such certificate entitling them to seats in the State of Punjab. The petitioner had neither represented the State of Punjab; nor was a resident of State of Punjab and as such, as per the instructions issued by the State Government she was not entitled to get any seat. In the additional affidavit filed on 24th November, 1997, it was stated that the State of Punjab entertains certificate for countersignatures issued by the Sports Department of Union Territory, Chandigarh in respect of those students, who have represented the State of Punjab but their parents are residing at Chandigarh and serving State of Punjab at Chandigarh.
5. Narration of the above facts, give rise to the following questions, which requires consideration by this bench.
1. Is it obligatory on the part of the applicant to annex the requisite certificate (in the present case gradation certificate) along with the application prior to the last date for submission of such application or not?
2. Could a Writ of Mandamus be issued to respondent No. 1 to countersign the gradation certificate of the petitioner and to give admission to the petitioner in the engineering college though admittedly the petitioner was neither resident of Punjab nor she ever represented the State of Punjab in the sports?
6. Admission to the participating institutions of the Punjab Technical University, Jalandhar are to be accorded as per the terms and conditions contained in the admission brochure/application form issued for the year 1997.
7. The petitioner in the present case had also sought admission on the basis of her sports profile in the said course for the academic sessions 1997-1998. In order to provide answer to the above questions reference to the admission brochure/application form with some elucidation would be necessary. The said brochure provides eligibility criteria, reservation of seats, qualifying conditions and how seats are to be reserved and allocated under sports quota. One of the basic conditions being issuance of gradation certificate would ultimately form the basis for grant of admission to a candidate under sports persons category.
1.4 Last date for receipt of completed application Form in the Office of Coordinator CET-1997, Punjab Technical University, P.O. REC, Jalandhar-144011, is 25-6-1997.
3.1 The result of Common Entrance Test shall, ipso facto, not entitle a candidate to get admission in a participating Institution/Department where the candidate intends to seek admission. Candidate desirous of seeking admission in any of the participating Institutions should fill up the Application Form appended to this brochure as Annexure-VIII and send/submit the completed form to the Co-ordinator. CET-1997, Punjab Technical University, Jalandhar only and not to any other participating Institution.
APPLICATION FORM WILL NOT BE ACCEPTABLE.
3.3 All the particulars required in the form must be filled in and no column be left blank.
3.4 Attested Photo copies of the certificates in support of the claims made by the candidate must be attached with the application form. THE ORIGINAL CERTIFICATES ARE REQUIRED TO BE PRODUCED AT THE TIME OF INTERVIEW/COUNSELLING OR SUBMITTED WHEN CALLED UPON TO DO SO.
3.5 The specimen copy of the format of the required certificates arc appended as Annex-ure-V to this brochure for the guidance of the candidates. Each certificate must be submitted on the prescribed format unless not specified and must be issued by the competent authority as mentioned under the eligible seal of their office on a date prior to or the last date of the submission of the application form. Candidates desirous of seeking admission to institutions, against seats allocated to the Punjab Residence candidate should attach required documents and attested copy of 'Residence Certificate' issued by the competent authority as given in guidelines for 'Residence Certificate' of Punjab in Annexure-IV. Candidates desirous of, seeking admission to Institutions, against seats allocated for specific reserved categories, should attach required documents and an attested copy of the required certificate issued by the competent authority as prescribed by the Institution concerned.
3.6 Every candidate must indicate in his/her application the category (ies) of reserved seats for which he/she wants to apply, IF NO MENTION IS MADE ABOUT THE CATEGORY IN HIS/HER APPLICATION, THE CANDIDATE WILL BE CONSIDERED ONLY FOR THE GENERAL CATEGORY. No candidate will be considered for admission against a reserved category for which he/she has not applied. Regarding reserved categories, rules/instructions of Govt. of Punjab/the concerned institute and as amended from time to time will be followed.
3.8 Application complete in all respects should reach the co-ordinator CET-1997, Punjab Technical University, Jalandhar-144 011 by 5.00 p.m. of June 25, 1997.
APPLICATION NOT SUBMITTED ON THE PRESCRIBED APPLICATION FORM OR NOT IN THE CANDIDATE'S OWN HANDWRITING OR NOT SUPPORTED BY THE REQUISITE ATTESTED PHOTOCOPIES OF THE DOCUMENTS OR INCOMPLETE APPLICATION IN ANY OTHER MANNER AND RECEIVED AFTER THE DUE DATE/TIME WILL BE REJECTED.
Punjab technical University, Jalandhar does not take any responsibility f6r postal delay or loss in transit of the application form.
4. SPECIFIC INSTRUCTIONS 4.2 Candidates must bring with them all the original certificates at the time of counselling, the copies of which were enclosed with the application form.
4.7 Candidates selected for admission after counselling will be required to deposit the original certificates and pay the prescribed fees forthwith.
v) The candidature of those eligible candidates, who did not appear for counselling on the due date or do not deposit the prescribed fees and original certificates immediately after selection, shall be automatically cancelled, and vacancies so caused will be offered to candidates next in order of merit according to CET-1997 rank. No correspondence or appeals in this connection will be entertained.
Eligibility
(a) All seats for candidate having Punjab 'Residence Certificate' (Specimen of Certificate) to be submitted is attached as annexure V (ii). Candidate must have passed 10+2 Examination of Punjab School Education Board/CBSE or any other examination recognised by the Guru Nanak Dev University as equivalent thereto with minimum 50% marks in the aggregate of Phys-ics, Chemistry, Maths and English, as a student of a recognised School/College situated in Punjab.
D. Sports Outstanding sports persons possessing sports gradation certificate A,B,C,D issued by the Director of Sports of Punjab.
6. SPORTS PERSONS CATEGORY Admission to seats reserved for sports persons will be made on the basis of sports certificate issued by the Sports Deptt. in the light of instructions issued by Government vide letter No. 47/26/83-5 Edu (5)/1410dated 7/12-6-1991 read with letter No. 47/26/83-5 Edu/1990 dated 4-8-1992 and47/83-7 IB/2238 dated 14-5-1993.
The instructions guidelines contained in letter No. 47/26/83-EDU-(5)/1990 dated 4-8-1992 on the subject of Issuing of Sports Gradation Certificate -- Reservation of seats for sportsmen/ women in Technical/Medical and Preferential treatment in services of the State Government are as under:--
i) The Certificates shall be in the following descending order on merit.
GRADE-D XX XX XX Note. For certification, Sports Department Punjab, only entertains the claims of residents in the State and the Union Territory of Chandigarh (The later is only entertained for counter-signature of certificates issued by Department of Sports. Union Territory, Chandigarh). This leaves out the sportsmen residents of other States or gven of Punjab who do not represent Punjab or any institution in Punjab in any competition.
8. The above terms and conditions contained in the brochure have been issued in furtherance to the notification of the Punjab Government dated 30th January, 1997 and in conformity with the University Calendar. These terms and conditions provide for eligibility, reservation and allocation of seats including issuance of gradation certificate as apublic declaration and are binding on the candidates as well as the party issuing the said brochure for the period in question. Alteration or dilution of the conditions of the brochure in a given case would neither be appropriate nor permissible. If such practice is adopted, the candidates at large would never know which of the conditions could be diluted or varied in a given case and more particularly when the brochure gives no such power or competence, to any authority to relax or waive the conditions of the brochure.
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) 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 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.
12. Clause 1.4 of the brochure indicates last date of receipt of completed application form to be submitted to the authorities by 25th June, 1997. Clause 3.8 further emphasise the need for the application to be complete in all respects. In bold letter a caution is put to note 3.8 where incomplete application or application not accompanying the requisite document is liable to be rejected. Under Clause 3.4 attested copies of the certificate in support of the claims made by the applicant must be attached to the application form. Such certificate have to be in the prescribed pro forma and signed by the competent authority. Under Clause 4.2, referred to above, right of the candidate to produce the original documents is restricted to the document which he was required or called upon to attach along with the application form. In other words, Clause 4.2 does not in any way grant permission, specifically or even by necessary implication, to a candidate to produce a document at a subsequent stage to the prescribed cut off date. The language of Clause 4.2 unambiguously require a candidate to produce the original certificate, the copy of which were annexed with the application form at the time of counsel ling. This rule rather conforms to the intention of the rule making authority that all necessary documents should be annexed to the application and the same should be complete in all respects before the cut off date. Eligibility has to be considered directly in relation to the cut off date prescribed in the brochure. Commenting upon the nature of such clauses or provisions and holding them to be mandatory in its spirit and substance, the Hon'ble Supreme Court of India in the case of Lachmi Narain v. Union of India, AIR 1976 SC 714 observed as under (para 66):--
"If the provision is couched in prohibitive or negative language, it can rarely be director, the used of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory"
13. Repeated affirmation of the principle by different Full Benches of this Court while relying upon the judgments of the Hon'ble Apex Court, unambiguously contains the dictum that the brochure declared before the entrance test has the force of law, strict adherence to its terms and conditions is of paramount consideration and terms and conditions including the cut off date cannot be relaxed unless such power is specifically provided to a given authority by use of unambiguous language. It is conceded before us that there is power of relaxation given to any authority in regard to specific adherence and compliance of the terms and conditions of the brochure. Rightly so, no such power could be vested as it will but necessarily introduce the element of discrimination and arbitrariness in the action of the authorities concerned, which may ultimately cause serious prejudice to the candidates who are not benefitted of such unprescribed relaxation or waiver. Thousands of students appear in such entrance test and the specialised body have been well advised to set the terms and conditions of the brochure with absolute clarity and definiteness. Introducing an element of doubt in such language would be doing injustice to the rule making authority and in fact, it would amount to frustrate the very legislative intent behind clauses of the brochure.
14. The terms and conditions of the brochure imposes a clear obligation upon the applicant to make a specific claim and support such claim with requisite documents. The specific claim of the candidate would be liable to be entertained only if it is supported by the said documents. In absence thereof or if the application is otherwise incomplete, it would be liable to be rejected and the authorities concerned would be under no obligation to consider such claim. To stake a claim under a particular category is for the candidate to decide but once such a decision is taken by him he is obliged to strictly adhere and comply with the terms and conditions of the brochure and furnish all the requisite information asked for including submission of the certificate like gradation certificate in case of a claim being staked to sports category.
15. At this stage, it would be appropriate to make reference to the judgment of a Division Bench of this Court in the case of Ms Mukta Bansal v. State of Punjab, 1997 (4) R.S.J. 796 where the Court held as under :--
"It is also equally a settled principle of law that the eligibility of the candidate has to be considered at the time and date meant for submission of application forms. It is also not disputed that the application of the petitioner was not complete by 25-6-1997, the last date for admission of firms. This is also not disputed that in absence of such a certificate the petitioner would not be eligible for claiming a seat in the sports category. The very foundation of the claim is based upon gradation certificate which admittedly was not submitted on the aforesaid date. The respondents obviously could not have considered the petitioner as eligible, if his application was not complete in all respects and was not accompanied with the gradation certificate as on 25-6-1997. In this regard reference can also be made to the judgment of Supreme Court in the case of Ashok Kumar Sharma v. Chander Shekhar (1997) 4 JT (SC) 99".
16. In view of the above discussion the only unassailable and veritable view is that a candidate to such entrance test, in view of the terms and conditions of the brochure, afore-referred, is obliged to submit all the certificates required to annex along with the application and submit the same complete in all respects before the cut off date. In default thereto, no obligation is imposed upon the authorities concerned to entertain such application or to grant seat to that candidate.
17. Resultantly, we are of the considered view that the judgment of the Hon'ble single Judge in the case of Gurbinder Singh v. State of Punjab Civil Writ Petition No. 11787 of 1995, decided on 8th September, 1995 and the judgment of the Hon'ble Division Bench in the case of Punjabi University v. Gurbinder Singh L.P. A. No. 770 of 1995 decided on 31-11-1995, with respect does not enunciate the correct law. We are unable to persuade ourselves to accept the view expressed by the Hon'ble Division Bench in these cases. Further, we hold that the view taken by other Division Benches of this Court including in the case of Daljit Singh v. State of Punjab, Civil Writ Petition No. 9211 of 1997 and Ms. Mukta Bansal v. State of Punjab C.W.P. No. 12093 of 1997 decided on 28-8-1997 following the Full Bench judgment of this Court, settles the law correctly. Thus, with approval, we reiterate the same view.
18. We having answered the question of law, would now proceed to discuss the merit of the present case in relation thereto. It is the admitted case that the gradation certificate was not submitted by the candidate along with the application nor copy thereof was annexed. The application was required to be submitted on or before 25th June, 1997. Ms. Indu Gupta had submitted the application on 5th July, 1997, Annexure P/16 to the writ petition to the Co-ordinator, Punjab Technical University, Jalandhar. She had submitted sports gradation certificate for counter-signature of the Director of Sports, Punjab on 27th June, 1997 under diary No. 5660. During the course of hearing, it was mentioned and in fact even specific stand has been taken by the respondents that she had taken the original gradation certificate back and had again submitted it later on. In other words, neither the application annexes the sports gradation certificate or copy thereof with the application nor she was possessed thereof even as on 5th July, 1997. Resultantly, the respondents were under no obligation to consider her application for allotment of a seat under the sports category because her application as submitted was not complete in alt respects as postulated under the terms and conditions of the brochure. As such we decline the relief to the petitioner on this ground alone.
19. During the course of hearing we had directed the Director of Sports, Punjab, to be present in Court to clarify certain doubts which had erupted during the course of arguments. The Director of Sports, Punjab, informed us that in furtherance to the orders passed by the Punjab and Haryana High Court in another writ petition complete detailed guidelines and instructions have been prepared and circulated by the State Government including the manner and the method in which gradation certificates should be applied for and issuance thereof by the competent authorities. Definite care has been taken by the authorities to keep the time factor in mind to avoid any prejudice to the applicants and every effort is made to issue gradation certificates prior to the date of submissions of applications for such entrance test. He had presented before the Court the brochure for the year 1998 wherein these instructions have been made part and parcel of the admission brochure itself. This would further predicate the view taken by us above.
SECOND QUESTION
20. This question has become more or less academic in the facts and circumstances of the present case. In the relevant brochure for the year 1997, to Clause 6 dealing with the sports persons category, a note has been appended. According to the note Sports Department of Punjab is required to entertain the claims of the residents in the State. The. State of Punjab also entertained application for countersignatures of the certificates issued by the Department of Sports, Union Territory, Chandigarh, However, there is a clear exclusion of the sportsmen who have not represented Punjab or Institution in Punjab in any competition. This note, therefore, does not give any enforceable right to the present petitioner for issuance of a writ of Mandamus directing the respondents to counter-sign the gradation sports certificates. She has been a resident of Union Territory, Chandigarh and in all the events specified in the writ petition she has always represented the Union Territory, Chandigarh and never State of Punjab.
21. Once the above two ingredients which are the very foundation for entertainment of a gradation certificate for the purposes of counter-signing are absent, the respondents cannot be said to be obliged to accept the request of the petitioner. Thus, we are unable to find any error on the part of the Director of Sports, Punjab, in not countersigning the Gradation Certificate submitted by the petitioner. As already noticed, the petitioner had even withdrawn the said certificate and probably resubmitted again to the said authority. Even the first submission of the certificate for countersignatures was beyond the last date for; submission of the applications.
22. It appears to us that the purpose of this note is to entertain the certificate for counter-signatures where a person who had represented the State of Punjab, but is a resident of Chandigarh as his parents are employed in the State of Punjab at Chandigarh and is studying at Chandigarh, could submit his certificate upon it being processed by the Union Territory for countersignatures by the Directorate of Punjab. It is not disputed before us that each State or Union Territory has its own sports category quota in all professional admissions. Such category is obviously restricted to the sports persons of that State in consonance with the terms and conditions of the brochure.
23. The note to Clause 6 dealing with the sports category has been elucidated and clarified in the prospectus for the year 1998. The said terms and conditions are in conformity with our above observations.
24. In view of our discussion above and more particularly our answer to question No. 1 in the negative, we are of the considered view that petitioner is not entitled to any of the reliefs prayed for in this writ petition, consequently, the writ petition is dismissed, however, without any orders as to costs.
25. Before parting with this file, we do have a pious hope that not only the State of Punjab, but the other departments and even other States exercising their authority, within the jurisdiction of this Court, would fairly apply these principles to the cases relating to the admission of the students to various courses. We also hope that what has been stated by the Director of Sports, Punjab, before us and recorded above, is implemented in its true spirit and substance to prevent avoidable prejudice to the students at large.