Bombay High Court
Isha Sharma vs Tata Institute Of Social Sciences And ... on 27 July, 2018
Bench: S.C. Dharmadhikari, Bharati H.Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION ST NO.2264 OF 2018
Isha Sharma .. Petitioner
Versus
Tata Institute of Social Sciences
and anr .. Respondents
...
Mr. Mehul Shah with Snehal Dukhale for the petitioner.
Mr.V.K. Wasnik for respondent no.1.
Mrs.Jyoti Chavan AGP for the State.
CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H.DANGRE, JJ.
DATED : 27th JULY 2018
ORAL JUDGMENT :-
1 At the outset, the name of respondent no.2 is deleted from the array of parties.
2 By this petition under Article 226 of the Constitution of India, the petitioner is seeking the following reliefs.
(a) This Hon'ble Court be pleased to issue Writ of certiorari and or any other appropriate writ as this Hon'ble Court may deem fit and proper in the Tilak 2/24 (912)WPL-2264-18.doc nature and circumstances of the case setting aside and quashing the impugned email dated 19 th June, 2018 of respondent nos.1, Exhibit "L" to Petition as being illegal, bad in law, malafide, ulterior, arbitrary unilateral and void.
(b) This Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ directly the Respondent no.1 allow the petitioner to pursue her course of MPH-HPEF, 2018-20, subject to the submission of final year mark sheet by September, 2018 and consider and exemption for non-
attendance of classes since 19th June, 2018". 3 In view of the earlier order passed by us, we grant Rule on this petition. Since all affidavits have been placed on record, by consent of both sides, Rule is made returnable forthwith.
4 The above two reliefs are claimed in the following facts and circumstances.
The Tata Institute of Social Sciences is a deemed University. It is given that status under the University Grants Commission Act 1956.
5 The petitioner before us is a student of Punjab
University. She was pursuing her Masters Degree course in
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Economics in the subject "Economics". She has stated in the petition that she has cleared the examinations upto 3rd Semester of this Masters Degree. She appeared for the 4th and final Semester examination between 11th May 2018 to 31st May 2018. She was awaiting results which were expected to be declared by July - August 2018, as on the date of filing of this petition, i.e. 4th July 2018, the position was that the petitioner was interested in seeking admission to the course of Master of Public Health (Health Policy, Economics and Finance) (for short 'MPH-HPEF') at the Tata Institute of Social Sciences (for short "TISS") 6 The petitioner has annexed to the petition as Exhibit-A collectively the copies of the mark sheets upto the third semester.
7 The petitioner was to make an application online for admission to the above course. On 20 th November 2017, she registered herself online for taking this examination styled as 'examination for this course'. The petitioner was assigned a Tilak 4/24 (912)WPL-2264-18.doc registration number. After evaluation of the application, the TISS issued a card on 21st December 2017, copy of which is at Exhibit-C known as 'Admit Card'. The entrance exam was scheduled on 6th January 2018. The result of this examination/ entrance test was announced on 27 th January 2018. Based on her performance in the entrance test, the pre-interview test as well as personal interview was held on 10 th March 2018. The claim of the petitioner is that she cleared all the stages of the admission process and the outcome of the same was announced on 27th April 2018. The petitioner was ranked 6 th in the merit list for this course.
8 The petitioner says that on 2nd May 2018, she paid the fees for the course and a receipt was issued acknowledging the payment. The petitioner also relies upon the revised guidelines and which say that in the event an admission is given to such a course, as is opted by the petitioner, the deadline for submission of the final results of the Post-graduate degree course is September 2018.
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9 The entire basis of the petitioner's claim in the
petition is that the Rules of admission do not exclude from the process a candidate who is pursuing a masters degree course. The only condition that is attached is that if such a candidate is admitted, his or her admission would be treated as provisional and before the deadline the final result of the Masters Degree Exam should be forwarded to the TISS.
10 The petitioner then says that on 3rd May 2018, the acceptance letter was forwarded by e-mail. Exhibit-H is a copy of the same. The TISS authorities required a personal appearance of the petitioner for verification of original documents and undergoing medical examination. The TISS fixed "May 14th - 15th, 2018" as the date when the candidate was required to personally appear for the said process. The petitioner was to appear for her final Semester Examination of M.A. Economics on 14th May 2018 and 17th May 2018. She sent an e-mail on 2nd May 2018 fairly in advance requesting for some accommodation. That is how in her case, the shifting of document verification date "22nd May 2018" was permitted. On Tilak 6/24 (912)WPL-2264-18.doc 22nd May 2018, in the presence of the petitioner, the concerned officials inquired about her final semester results and she informed him that the final semester examination has just been held by the Punjab University Chandigarh and she would complete the same by 31st May 2018. Exhibit-K is a copy of the representation handed over by her on 28 th May 2018. It is stated that the local guardian of the petitioner met acting Director of TISS Ms.Shalini Gharat who referred her matter to one Mustafa. The petitioner was informed that final year results must be submitted before 30 th September 2018. It is under these circumstances, she was assigned an enrollment number and was attending the orientation programme from 4 th to 6th June 2018. Thereafter, she started attending the classes as well. The petitioner was granted an enrollment number, necessary identification so as to enable her to enter the campus and attend the classes.
11 However, the petitioner was informed on 19 th June 2018 vide Exhibit - M that she is not eligible for the course and her admission is illegal, wrongful and arbitrary. It is in these Tilak 7/24 (912)WPL-2264-18.doc circumstances that the petitioner pointed out that she has been issued all the above documents and challenged the email communication of 19th June 2018.
12 Despite protesting and resisting that communication since the TISS authorities did not take the requisite corrective steps, she has approached this Court.
13 After she approached this Court and the matter was listed before us on 12th July 2018, an additional affidavit was tendered by the petitioner's Advocate in which the petitioner pointed out that her name was duly mentioned in the attendance sheet of the orientation programme, her attendance was duly recorded in the classes conducted upto 19th June 2018. She has also marked her attendance for the classes and that a similarly placed candidate Rimsha Masroor has not been visited with the harsh consequences as that of the petitioner. Then, in para 3 of the additional affidavit, the revised guidelines are relied upon by the petitioner and copy of that is also annexed as Exhibit-B to this additional affidavit. It is Tilak 8/24 (912)WPL-2264-18.doc claimed that the petition was filed in grave urgency and that is why the petitioner could not point out that she had approached even the University Grants Commission.
14 In this additional affidavit and particularly its annexure, what the petitioner relies upon is the rules regarding admission to masters programme and clause 2.3.4 thereof. 15 On 12th July 2018, Mr.VK. Wasnik appeared and accepted service on behalf of TISS. At his request, we placed the matter to 27th July 2018, but we passed the following order :
1 The additional affidavit tendered by the petitioner's advocate is taken on record. At the request of Mr.Wasnik, who accepts notice and waives service for respondent no.1, we place this matter on 27th July 2018. It shall be listed on the "Supplementary Board".
2 Prima facie, we find that the petitioner has been informed only after she was issued a proper identity card and a confirmed admission, that she was not admitted to the programme (Master of Public Health) in Health Policy, Economics and Finance for the academic year 2018-19. The communication addressed via e-mail to the petitioner itself shows that she has been attending classes though it is now claimed that her Tilak 9/24 (912)WPL-2264-18.doc admission is not in accordance with the rules and regulations. Prima facie, therefore, the petitioner student cannot be expelled or excluded from the course, which she is pursuing at the first respondent. Let her, therefore, attend the classes at her risk and subject to final orders in this petition.
After this hearing, the TISS has filed an affidavit. The affidavit- in-reply says that on 24th October 2017, the TISS advertised the admission notification for the Academic Year 2018-19. The advertisement explicitly stated that for information about eligibility, selection process, reservation, etc. the website of the institute should be visited. That website contains the complete details. The candidates are requested to check the eligibility criteria before filling the online application form. This advertisement specifically says that if a candidate is found ineligible, his candidature will be rejected at any stage in the admission process and no grievance will be entertained in this regard. The candidates were warned that in case the information furnished is incorrect, misleading or depicting patent ineligibility, then the admission/selection is liable to be cancelled.
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16 The petitioner is specifically accused of suppressing
true and material facts and misleading this Court. It is stated that the brochure for admission at Serial No.16 sets out the details of the MPH-HPEF course. After setting out the requirement, it stated that candidate should have a Masters Degree in any discipline or a completed Bachelors degree in Medicine, Paramedical, or other four year programme like Pharmacy, Veterinary Sciences, Engineering, law. The candidate should have completed the internship on or before June 2, 2018. The candidates who are in their final year in Bachelors degree programme are not eligible to apply. Pertinently, it is not the case in this affidavit that the petitioner is not armed with a Bachelors degree. What the petitioner is accused of is that when she clicked the admission form and the inquiry was made whether she was eligible, the self information generated by her was in the positive. Then, it is her obligation and duty to demonstrate as to how she is eligible. The petitioner has conveniently not referred to the date of document verification and the document verification process.
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She avoided to appear on the date when the document verification took place. However, when she appeared for personal verification of the document, she was required to fill the form along with all documents verification and produce the original mark sheets and certificates of the qualifying exams. It is not correct to say that because the entrance test was cleared and the petitioner was shortlisted for pre-interview that she can be considered as an admitted student. The petitioner earlier informed that she has appeared, for her final semester for M.A, particularly during the personal interview is not an admitted position. The personal interview is purely on academic matters and not for verification of eligibility or document verification of hard copy/original. The petitioner was informed to obtain such a Masters Degree Certificate but she conveniently does not refer to this aspect of the matter and relies upon other document stated to be in her favour. It is not a document which would evidence her lawful and proper admission to the course. At best, all the documents enable her to take the entrance test and appear at the further interview/document verification process.
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17 It is stated in paragraph no.21 of the affidavit that
the petitioner knew that she was not possessing all the certificates and that is how she approached the Acting Director of TISS on 23rd May 2018. She was informed by the Acting Director that the petitioner is not eligible for want of Masters Degree certificate. Thus, having been informed about all this, she conveniently goes and attends the classes but her attending classes, marking her attendance would not create any right in her favour. On 19th June 2018, therefore, she was rightly informed that from inception, her admission is contrary to the rules and that is therefore, cancelled. No right is created by payment of fees either. In such circumstances, it is claimed that the petition be dismissed.
18 Reliance is placed by Mr. Wasnik appearing on behalf of TISS on this affidavit-in-reply, whereas the 2 nd additional affidavit is tendered by Mr.Shah appearing for the petitioner in which she says that the list of documents which were attached to her form for document verification has been accepted and receipt thereof is acknowledged by one Tilak 13/24 (912)WPL-2264-18.doc Ms.Ashwini Rane. That very clearly says that the petitioner has taken M.A. Semester I exam and cleared it. She has also cleared the 2nd Semester and 3rd Semester Examination but she would definitely not be possessing the M.A degree certificate from Punjab University because she had appeared for the Final Semester Examination in the month of 2018 itself. She was armed with a Bachelors degree certificate. In these circumstances, it is stated that after the writ petition was filed, the Punjab University has, vide a confidential letter/ communication communicated the petitioner's results for the M.A. Degree course in Economics and the petitioner has cleared the final semesters. Thus, before the deadline of 30 th September 2018, she would be possessing the degree certificate as well. This shows that she is a Masters Degree Holder. 19 Mr.Wasnik, however, says that a compilation of documents referred to and relied upon by TISS would go to show that the petitioner picked up convenient portions of the rules and does not elaborate as to how the process requires a set of qualifying degrees for the Masters of Public health, Tilak 14/24 (912)WPL-2264-18.doc Health Policy, Economic and Finance Course. Mr. Wasnik would submit that the course itself requires a candidate to have a Masters Degree in any discipline or completed Bachelors Degree in Medicine, paramedical or other four year programme like Pharmacy, Veterinary sciences, Engineering, Law. A candidate should have completed the internship on or before Saturday, 2nd June 2018. The candidates who are in their final degree in Bachelors Degree programme are not eligible to apply. Mr.Wasnik therefore, would submit that in the event a liberal view is taken in the case of the present petitioner and her admission is not cancelled, that will sent a wrong message to all the candidates who may claim that though they have not complied with the Rules, their admissions are legal and regular. They would rely upon such orders and directions as may now be issued by this Court and then it will not be possible for an Academic body like TISS to regulate the entire admission process. The petitioner's reliance on the case of Rishma Masroor is also incorrect. In that, Rishma Masroor had passed the degree certificate (Masters Degree Certificate) examination before 2nd June 2018 i.e. before the date of her admission.
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Hence, the petitioner is not similarly situate like that of this candidate.
20 The endeavour of Mr.Shah appearing for the petitioner however, is to show that the petitioner's admission was not obtained by perpetrating a fraud nor can it be said to be vitiated by suppression of material facts. From its inception, the admission is legal and proper. Mr.Shah has invited our attention to several annexurres to the writ petition and particularly page 27 thereof. It is urged that the rules and the contents of the form at page 21 would reveal that a candidate should have successfully completed a Masters Degree Course, in any discipline, is a requirement, but what is essential is the Bachelors Degree. Those undertaking or undergoing studies for a Bachelor's degree course are not eligible to apply, but such of those candidates who may have appeared for the Masters degree Certificate examination are not ineligible for the rules themselves say that they should forward their results on or before 30th September 2018 and that is evident from what are styled as "revised guidelines" for confirmation of admission for Tilak 16/24 (912)WPL-2264-18.doc the Academic Year 2018-20. Our attention is invited by Mr.Shah to clause X of these revised guidelines which read as under :
X Other matters
a Final Year Mark sheet
Final Year Mark sheet/provisional certificate of passing and Internship completiOn certificate (wherever applicable) issued by University/Institute authorities should be submitted to the Academic Section on or before 30th September, 2018. Anyone failing to produce final mark sheet/provisional certificate by 30 th September 2018 will not be allowed to continue their course at the Institute. THIS DATE MUST BE NOTED FOR DUE COMPLIANCE 21 Mr.Shah would submit that the petitioner never suppressed the fact that she is not armed with the M.A. Degree certificate, but she has appeared for this Masters degree course and her final semester examination was scheduled in May 2018. That is how she prayed for re-arrangement of the date for document verification. That was granted. In the circumstances, the admission of the petitioner to the course cannot be said to be illegal from inception. Then, reliance is placed on the additional affidavit and importantly, the further Tilak 17/24 (912)WPL-2264-18.doc additional affidavit tendered today. Though Mr.Wasnik would argue that a suppression by the petitioner is evident from the petitioner's documents, Mr.Shah would refute the allegation by contending that neither in the petition nor in the annexures thereto, can one find any statement which can be said to be misleading or false. For these reasons, it is alleged that the writ petition be allowed.
22 With the assistance of the Advocates appearing for both sides, we have perused the writ petition and the annexures thereto. We have perused the additional affidavit of the petitioner and we have also perused the affidavit-in-reply of TISS, the second additional affidavit and the compilation of documents tendered by Mr.Wasnik. Mr.Wasnik heavily relied upon the judgment and order passed by this Court in Kum. Khayti Girish Purnima Kulkarni Vs. College of Architecture (Writ Petition No.2185 of 2012 decided on 11th June 2012) 23 The petitioner in that petition was seeking admission to Architectural course. She passed her 10 + 2 Tilak 18/24 (912)WPL-2264-18.doc examination and applied for admission in the college i.e. Marathwada Mitra Mandal College of Architecture Pune. She was admitted to the First Year Bachelors of Architectural course for the Academic year 2011-12. She completed and passed out the first semester. However, by an order of 10 th February 2012, her admission was cancelled on the ground that on a date of her admission to this Course, she was not qualified. Minimum marks that the candidate was required to obtain was 50%. The petitioner was not fulfilling or satisfying this criteria as she cleared her 10 + 2 examination obtaining 49.5% marks. Thus, from the date the admission process began, she could not have been admitted to this course. It is in these circumstances that the Court made the observations heavily relied upon by Shri Wasnik. It may be that there is a power to cancel an admission at a subsequent stage and even after the candidate has started attending classes or has cleared any semester examination for the course. There is, therefore, no estoppel against cancellation of an admission if it is found to be obtained by fraud or so vitiated from the inception that the essential eligibility criteria was never satisfied when the candidate was admitted. Once Tilak 19/24 (912)WPL-2264-18.doc the basic eligibility qualification was lacking, the Council of Architecture was justified in cancelling her admission. This Court held that this is not a case of mere irregularity, but an illegality.
24 In the instant case, we do not find this to be the position. On facts, the petitioner desirous, as she was, in seeking admission to the course at TISS brought out very clearly her academic details or qualifications in the online printed form. As far as her academic details, she outlined her bachelor degree details and stated that she is the B.A from Punjab University, Chandigarh. The degree pattern was set out, the Education faculty and the specialized subjects. She has very clearly stated that she has cleared this examination and is thus holding the Bachelors Degree certificate from Punjab University. Pertinently, this course for the Bachelor's Degree, its subjects and its clearance is not doubted and that this course is successfully completed by her is not disputed. Thus, her Bachelor's Degree course in social sciences with Economics as a special subject is successfully completed by the petitioner. The Tilak 20/24 (912)WPL-2264-18.doc details pertaining to the same are not doubted far from being termed as misleading or false. That she has appeared for her Master's Degree final semester Exam in May 2018 is throughout disclosed by her. She has never claimed that she is possessed with a Master's Degree Certificate. Insofar as the Masters Degree course is concerned, this is a Post Graduation degree course. She has applied for it. Status of her post graduation was indicated as "second year". She very clearly said that this is a course comprising of four semesters. Having a semester system, she has been admitted to this course in the year 2016 and that, her details would reveal that she has appeared for the examination but is still eligible to apply. Reliance is rightly placed on page 27 of the paper book which would indicate that this is not a document created by the petitioner but emanating from the TISS. It very clearly says that the candidate could have successfully completed Masters degree in any discipline or four years Bachelors degree in medicine, paramedical sciences or other four years programme like pharmacy, veterinary sciences, engineering, law. The candidate should have completed her internship on or before Saturday 2nd June 2018.
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The candidates who are in their final year in Bachelors Degree are not eligible to apply. This is identical to the set of documents relied upon by Mr.Wasnik before us. From the compilation of documents of the TISS tendered by Shri Wasnik, it is evident that admission information given on website, admission rules, online application of the petitioner tallies with what is emanating from TISS. Insofar as the subject i.e. Master of Public Health (Health Policy, Economics and Finance), the requirement is the candidate should have a Masters degree in any discipline or completed Bachelors degree. This stipulation is identical to page 27. This itself does not rule out an application being made by the petitioner for admission. Thus, she could have applied for admission to this course. What is implicit in this stipulation becomes explicitly clear if one refers to the revised guidelines, the relevant portion of which we have reproduced above. If final year mark sheet or provisional certificate of passing and internship completion certificate (wherever applicable) issued by the University/Institute Authority should be submitted to the academic section on or before 30th September 2018, is the condition prescribed in the Tilak 22/24 (912)WPL-2264-18.doc revised guidelines, then, it is evident that till such date as this document is submitted, at best, the admission is provisional. Such an admission cannot be equated with an admission which is ab initio void or illegal. Such an admission may not confer an absolute right on the petitioner, but surely such an admission is not obtained by suppression of a material fact or by practicing fraud on the Institute. It is in these circumstances, and in facts peculiar to the petitioner's case, that we are of the opinion that the representation made by her post-cancellation of her admission should have been accepted. An opportunity should have been given to the petitioner to comply with the rules and bring in the required document by the deadline i.e. 30th September 2018.
25 If there was any doubt about the understanding of the parties in relation to the requirement as prescribed by the Rules, that is set at rest by the second additional affidavit in which the petitioner categorically states that in reply to the stand of the TISS, it is not correct to say that the petitioner deliberately avoided to attend document verification. In fact, Tilak 23/24 (912)WPL-2264-18.doc the list of documents was already submitted to the verification officer and Ms.Ashwini Rane of TISS has acknowledged the receipt of such documents. Secondly, the Punjab University was requested to submit the petitioner's confidential result for M.A in Economics Final Semester directly to the TISS and that packet is delivered on 19th July 2018. Once the mark sheet is delivered, the TISS can satisfy itself as to whether the petitioner has cleared the M.A. Examination. Now, even the degree certificate would be forwarded before the deadline i.e. 30 th September 2018. In the above facts and circumstances and peculiar to the petitioner's case, we are unable to accept the stand of TISS that it was misled by petitioner or that the information provided by the petitioner in her admission form, is patently false. Once the information was not false, then, the TISS could not claim that it was misled in any manner. The cancellation of the petitioner's admission is contrary to the rules and the revised guidelines issued by TISS itself. The communication dated 19th June 2018 challenged in this writ petition therefore cannot be sustained.
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26 As a result of the above discussion, the writ petition
succeeds. The impugned communication is quashed and set
aside.
27 Rule is made absolute in terms of prayer clauses (a)
and (b).
28 In the circumstances, there will be no order as to
costs.
(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)
Digitally
signed by
Manali Manali
Prasanna Tilak
Prasanna Date:
Tilak 2018.08.01
11:11:28
+0530
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