Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 379 (PAT)

Manoj Kumar And Another v. State Of Bihar

2000-03-07

SHIVA KIRTI SINGH

body2000
Judgment Shiva Kirti Singh, J. 1. These two writ petitions involve common questions of fact and law and, therefore, with consent of parties, they have been heard together and are being disposed of by this common order at the stage of admission itself. 2. Both the writ petitions have been filed by students. Both of them had taken the Bihar Combined Entrance Competitive Examination conducted by the Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as the Board) in 1998 for admission into various engineering colleges in the State of Bihar. The petitioners did not find place in the first list of successful candidates but subsequently they were found eligible for admission on seats that remained vacant in Maulana Azad College, of Engineering and Technology, Patna (hereinafter referred to as the College). The grievance of the petitioners is that the Board thrice fixed and communicated to the petitioners the date of counselling for admission against vacant seats in the College, first by Annexure-2 dated 4.2.1999 and again by Annexure-4 dated 12.3.1999 and again by Annexure-5 dated 26.4.1999 but all the notices were subsequently cancelled and no interview/counselling took place for no fault of the petitioners and wholly on account of wrong actions of the Board or of the College in question. This forced the petitioners to move this Court through the present writ applications with a prayer to command the respondents to hold the necessary interview/counselling of eligible candidates including the petitioners forthwith and to admit them in the College in question on the basis of merit-cum-choice for the 1998-99 session for which the petitioners had taken the examination. 3. The stand of the respondent-State of Bihar and the Commissioner-cum-Secretary, Department of Science and Technology, Government of Bihar, as appears from the counter-affidavit on behalf of the respondent No. 2, is one of absolute indifference on the ground that as per Sec. 8 of the Bihar Combined Entrance Competitive Examination Act, 1995 the concerned responsibility is that of Controller of Examination, respondent No. 4. So far as the Chairman of the Board and the Controller of Examination are concerned, their stand is that the first merit list of Physics, Chemistry, Mathematics (PCM) group for admission to engineering and other courses was published on 15.8.1998, the interview/counselling was held from 23.8.1998 to 31.8.1998 and recommendation for admission was made accordingly. So far as the Chairman of the Board and the Controller of Examination are concerned, their stand is that the first merit list of Physics, Chemistry, Mathematics (PCM) group for admission to engineering and other courses was published on 15.8.1998, the interview/counselling was held from 23.8.1998 to 31.8.1998 and recommendation for admission was made accordingly. With regard to grievance of the petitioners, the stand of the aforesaid respondents is that when they had fixed the dates for interview/counselling for the petitioners then by a letter dated 28.4.1999 the College informed the Controller that the College has already admitted 150 students in the first year of 1998-99 batch and hence, it was not possible for the College to admit any more students in that batch. Same is the stand of the College, respondent No. 5, before this Court. On behalf of the College, it has been submitted that it cannot wait indefinitely for the Board or the Controller to make recommendations. It admitted students recommended by the Board till January 1999 but thereafter it has filled up the remaining seats on its own. In its counter-affidavit, the respondent No. 5, the College has accepted the fact that as a recognised minority College, it is entitled to fill up only 50% of the seats by itself and rest of the 50% seats are required to be filled up on the basis of list to be furnished by the competent authority, in this case, the Board and the Controller of Examination. But, their further stand is that as per paragraph 210(9) of the judgment of Hon ble Supreme Court in Unni Krishnans case -- , the management of all such technical colleges whether general or minority were entitled to fill up those seats which may remain vacant after exhaustion of waiting list of candidates sent by the authorities or after the last date prescribed by the competent authority for admission was over. The relevant part of the said judgment reads as follows: After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or drop out vacancies arising after the admissions are finalised. These vacancies shall be filed until such date as may be prescribed by the competent authority. The said list shall be followed for filling up any casual vacancies or drop out vacancies arising after the admissions are finalised. These vacancies shall be filed until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the management. 4. The further case of the College is that no waiting list as envisaged in the decision of the Hon ble Supreme Court was sent to the College nor any last date for admission was prescribed by the authority and hence, the College became entitled to fill up remaining unfilled seats from the 50% quota required generally to be filled up on the basis of recommendation of the Board, the competent authority. Allegedly the College took precaution in the matter by writing a letter to the Government of Bihar dated 17.11.1998 requesting the State Government to send further list, if any, by 30.11.1998 because holding of regular classes could not be postponed beyond November 1998. Although there was no response from the State Government but five further students were recommended to the College on 29.1.1999 and they were admitted because the seats were not fully filled up but subsequently, all the seats were filled up by the College authorities. 5. In the aforesaid facts and circumstances, the stand of the College is that it is justified in refusing to take any further admission in the month of April 1999. The stand of the respondent-Board and Controller of Examination is that upon coming to laaow of the stand of the College in April, 1999 they have referred the matter to the Government of Bihar for guidance taut they have not received any reply and as noticed earlier the stand of the State of Bihar is that they have nothing to do in the matter as the competent authority in these matters is the Board and the Controller of Examination. 6. The aforesaid facts pose a complex situation wherein the petitioners, who are not at all responsible for such a situation, are being punished solely for the faults of the Board and the Controller of Examination and to some extent of the College. 7. In course of arguments learned Counsel for the. petitioners submitted that the petitioners could not be penalised by depriving them of their right of admission because the respondent Nos. 7. In course of arguments learned Counsel for the. petitioners submitted that the petitioners could not be penalised by depriving them of their right of admission because the respondent Nos. 3 and 4 failed to send a waiting list and further the College could not have filled up any seat beyond its quota of 50% unless and until last date for admission was fixed by the respondent-Board or the Controller of Examination and until that date was over. 8. In the facts of the case I find sufficient force in the submissions advanced on behalf of the petitioners. The fault clearly lies on respondent Nos. 3 and 4 and also to some extent on respondent No. 5 but the petitioners cannot be held responsible for such a situation and hence, they cannot be denied their right of admission after completion of necessary formalities of interview/counselling. Otherwise their fundamental right under Article 14 of the Constitution of India would stand violated as held by a Division Bench of this Court in the case of Brij Kishore Prasad V/s. State of Bihar 1981 BBCJ 553 . But before issuing final orders and directions in this regard, in my view, these cases disclose certain features that require issuance of some general directions so that the spirit of the order of the Hon ble Supreme Court, as quoted above, may not be frustrated in future. Hence, for future session the respondent Nos. 3 and 4 are directed to prescribe a firm date up to which casual vacancies or drop out vacancies shall be filled up on the basis of waiting list required to be sent to the College by the competent authority. Learned Counsel for the respondent Nos. 3 and 4 submitted that College-wise waiting list cannot be sent at one time because it will depend upon the outcome of subsequent interview/counselling in view of nature of such vacancies which are bound to take place later on. There does not appear to be any substance in such submission because them is no separate time-limit fixed for publishing a waiting list of the candidates along with marks obtained by them. Further, this may be done college-wise or in general out of which candidates may be allotted to the colleges as per outcome of interview/Counselling. There does not appear to be any substance in such submission because them is no separate time-limit fixed for publishing a waiting list of the candidates along with marks obtained by them. Further, this may be done college-wise or in general out of which candidates may be allotted to the colleges as per outcome of interview/Counselling. The essential requirement of such a provision is that a waiting list should be published within the time prescribed for filling up casual vacancies or drop out vacancies. Both these obligations must be carried out by respondent Nos. 3 and 4 so as to avoid unjust enrichment to the colleges concerned on the pleas that have been raised in these cases by the college in question. 9. An objection has been raised on behalf of the College that by this time the academic session for 1998-99 batch is over and the students of that batch are now required to take their first year examination. Learned Counsel for the petitioners in reply to such objection relied upon a Full Bench judgment of this Court in the case of Umesh Chandra Sinha V/s. V.N. Singh AIR 1968 Patna 3, where while meeting a similar objection with regard to admission into MBBS course, this Court turned down such objection, paragraph 21 of the said judgment is quite apt for the issue under consideration and relevant part of the same is as follows: At this stage, we are not concerned with whether the petitioner will be sent up for the examination or else whether the failure to secure the minimum attendance will be condoned (if permissible) in view of the fact that the delay was due to circumstances beyond the control of the petitioner. These are matters to be dealt with by the authorities concerned in accordance with the rules and regulations in force in the University. The petitioner is prepared to take all the risks involved in securing admission, at such a belated stage. Once we hold that the offending provisions are unconstitutional, we should not deny him the appropriate relief merely because some other consequence may ensue later on. 10. On behalf of the petitioners, it has been submitted that they are also prepared to take all the risks and hence, admission should not be denied to them for such reasons over which they had no control and for which they cannot be blamed. 10. On behalf of the petitioners, it has been submitted that they are also prepared to take all the risks and hence, admission should not be denied to them for such reasons over which they had no control and for which they cannot be blamed. The judgment of the Supreme Court in the case of Punjab Engineering College V/s. Sanjay Gulati 1983(2) SCC 517, was rightly relied upon by the petitioners for the proposition that in such circumstances direction should be issued to admit the petitioners against vacancies or, if required, additional vacancies in the next session i.e., the session 1999-2000. 11. Accordingly, these writ applications are allowed and the respondents are directed to complete the process of interview/counselling within two weeks from today and allow the petitioners admission either for the session 1998-99 for which they were eligible or in the next session 1999-2000, by creating two additional seats, if required, as expeditiously as possible, preferably within one month from today. In the facts of the case, there shall be no order as to costs.