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Himachal Pradesh High Court · body

2005 DIGILAW 324 (HP)

AKASH BHAWRA v. SECRETARY, TECHNICAL EDUCATION

2005-09-06

A.K.GOEL, DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.—The petitioner, who is a young boy aged 19 years, has been put into an unusual predicament for no fault of his and has come to this Court seeking relief under Section 226 of the Constitution of India by way of this writ petition. 2. Petitioner Akash Bhawra appeared in 10+2 examination conducted by the Council for the Indian School Certificate Examination. As per the Rules of this Council, a pass certificate is granted to a candidate who obtains the pass standard (40% in each subject) or in four or more subjects which must include the subject of English. The petitioner was declared pass in the said examination. He passed the subjects of English, Mathematics, Chemistry and Physical Education. In the subject of Physics he was declared fail as he had only 31 marks. Since the petitioner had passed in four subjects on the overall basis, he was declared to have passed as per Annexure P-1 issued in the year 2003. 3. The petitioner wanted to pursue studies in the field of engineering. He submitted an application alongwith requisite fee before 1.2.2003 for appearing in the All India Engineering/Pharmacy/Architecture Entrance Examination conducted by the Central Board of Secondary Education. At that time the petitioner had not appeared for his 10+2 examination. In the prospectus the compulsory subjects for BE/B. Tech. course are Physics and Mathematics. The candidate should have also passed in one of the optional subjects, being Chemistry, Biotechnology, Biology or Computer Science. The petitioner appeared in the Entrance Test and obtained 118886 rank on All India basis and 883 rank on State basis. 4. After the receipt of his result from the Council for the Indian School Certificate Examination, the petitioner wrote a letter dated 9.7.2003 (Annexure P-4) to the Deputy Registrar (Academic), H.P. University, Shimla. The relevant portion of the said letter reads as follows : "I have passed 10+2 class from ICSE IN 2003. Certificate attached Roll No.B/8717/026. I want to take admission in Electronic Engineering in Green Hills Engineering College Kumarhatti. Kindly let me know if I am eligible for admission because the Board has declared me pass though I am failing in the subject of Physics." 5. Certificate attached Roll No.B/8717/026. I want to take admission in Electronic Engineering in Green Hills Engineering College Kumarhatti. Kindly let me know if I am eligible for admission because the Board has declared me pass though I am failing in the subject of Physics." 5. The University instead of answering the letter of the petitioner in clear-cut terms, vide letter dated 5.8.2003 (Annexure P- 5), informed the petitioner as follows: "With reference to your letter dated 9.7.2003 on the subject cited above, I am directed to inform you that the admission is/are to be made by the concerned colleges. You are, therefore, directed to contact the Principal of the college concerned for any information/clarification related to admission in these colleges." 6. The Department of Technical Education, Vocational & Industrial Training, Himachal Pradesh issued a Prospectus-cum-Information Brochure for admission to 1st year of Engineering and other Courses in private Engineering Colleges of Himachal Pradesh. Respondent No. 4 - M/s. Green Hills Engineering College, Gandhigram, Kumarhatti, is one of such colleges in Himachal Pradesh. As per the prospectus the first round of counseling was to be conducted on 22.7.2003 in the Directorate of Technical Education, Sundernagar, District Mandi, the second round of counseling for all categories was to be done on 23.7.2003 and the last round of counseling was to be done on 8.8.2003. The candidates were to bring all their original certificates at the time of counseling. The petitioner appeared before the Selection Committee for counseling and was selected for the course of Mechanical Engineering in respondent No. 4 - College. 7. The petitioner thereafter approached respondent No. 4 - College and, according to him, he was informed that the seats in Mechanical Engineer stood filled up and he was offered a seat in Computer Science and Engineering. He deposited Rs.10,500/- on 11.8.2003 and another sum of Rs. 24,000/- thereafter. 8. The petitioner was allotted Roll No.20135 for the 1st Semester examination and appeared in the said examination in December, 2003. Thereafter, the petitioner attended the classes of the 2nd Semester. The University declared his result of 1st Semester in April, 2004 and the petitioner was placed under compartment as he had failed to clear the subject of Mathematics. The petitioner also appeared in the 2nd Semester examination under Roll No. 20135 conducted in June, 2004. Thereafter, the petitioner attended the classes of the 2nd Semester. The University declared his result of 1st Semester in April, 2004 and the petitioner was placed under compartment as he had failed to clear the subject of Mathematics. The petitioner also appeared in the 2nd Semester examination under Roll No. 20135 conducted in June, 2004. In the meantime, the petitioner had also cleared the subject of Physics in May, 2004 in an examination conducted by the Council for the Indian School Certificate Examination (Annexure P-8). 9. The result of the 2nd Semester was declared by the University in September, 2004. However, the result of the petitioner was withheld. Respondents No. 4 and 5 permitted the petitioner to attend the 3rd Semester classes and he was also permitted to appear in the examinations conducted for the 3rd Semester under the same Roll No. 20135 as well as for the subject of Mathematics of 1st Semester. According to the petitioner, when he approached the College authorities as to why his result has not been issued he was shown the letters Annexures P-9, P-13 and P-ll sent by the College to the University. It is only then that he came to know that on 28.7.2004 the Deputy Registrar (RME) of the University had sent a letter to the Directorate of Technical Education, Sundernagar, wherein it was stated that the University had received the registration form of the petitioner. In this letter it was also mentioned that since the candidate has not passed his Physics subject during the year of admission he was not eligible for admission in B. Tech. Course. The Directorate of Education was asked to clarify how the petitioner was shown in the merit list even though he did not fulfill the minimum educational qualification. It would be pertinent to mention that the University even at this stage did not deem it fit to send a letter to the petitioner or his College. Vide letter dated 28.8.2004, the Director of Technical Education informed the University that the petitioner was admitted during the academic session 2003-2004 on the basis of pass certificate for 10+2 awarded by the Council for the Indian School Certificate Examination. It was also stated that the petitioner had got 164 marks in the Common Entrance Test conducted by the C.B.S.E. In the same letter it was mentioned that the candidate should be registered. It was also stated that the petitioner had got 164 marks in the Common Entrance Test conducted by the C.B.S.E. In the same letter it was mentioned that the candidate should be registered. The College also sent letters to the University and the Directorate of Technical Education in October & November, 2004 requesting that in view of the fact that the petitioner had already appeared in the Examination of three semesters and has been admitted in College, he should be registered. 10. On 8.11.2004, the University wrote a letter to the Director of Technical Education in this regard. Reference was made to the Ordinances of the University as well as the prospectus, according to which the minimum qualification for admission to B. Tech., was that a candidate should have passed 10+2 examination and should have passed in the subjects of English, Physics, Chemistry and Mathematics. The Director, Technical Education sent a similar reply as before. The University again sent a letter on 1.1.2005 to the Director, Technical Education with a copy to the Principal of respondent No. 4 - College. The Director sent a reply on 3.2.2005 on the similar lines again requesting that the candidate should be registered on compassionate ground. Thereafter, the Controller of Examinations, H.P. University sent another letter dated 9.2.2005 to the Director, Technical Education again reiterating that the petitioner was ineligible for admission to B. Tech. Course at the time when he was granted admission. The reply of the Director was the same as before. 11. The present petition was filed by the petitioner on 19.4.2005. During the pendency of the petition, this matter was heard at some length on July 6, 2005, on which date this Court passed a detailed order, operative portion of which reads as follows: "Prima-facie we feel that neither respondent No.2 nor respondent No.3 has acted in a reasonable and just manner in the peculiar circumstances of this case. This is our tentative view after having heard learned counsel for the parties for sometime. But before proceeding further, the Officer who had signed Annexure P-7, after counseling, sponsoring the petitioner to respondent No. 4 College, should appear in person alongwith the original record, on the basis whereof he may have to be examined in the Court. This is our tentative view after having heard learned counsel for the parties for sometime. But before proceeding further, the Officer who had signed Annexure P-7, after counseling, sponsoring the petitioner to respondent No. 4 College, should appear in person alongwith the original record, on the basis whereof he may have to be examined in the Court. Similarly, the Officer who had signed Annexure P-5 is also directed to appear in person alongwith original record to show as to how the matter was dealt with in the University after receipt of Annexure P-4. Finally, Registrar of respondent No. 4 is also directed to remain present alongwith original record to show as to how the stream of the petitioner was changed from Mechanical to Computer Engineering after he was sponsored for the former by the Director of Technical Education. Further information required from this Registrar is also to the effect, can the College shift the stream from the one for which a student is sponsored by the Director of Technical Education. All the aforesaid officers shall appear in person on 12th July, 2005 along with original record. All and/or anyone of them may have to be examined on oath with reference to the records from their respective offices." 12. Again, the matter was argued on 12.7.2005 when the Officers were present in person and respondent No. 2 - Director of Technical Education was directed to give the details on the basis of which the application was routed through them. Supplementary affidavits were filed by all the authorities. 13. From the above facts, it is abundantly clear that the petitioner was admittedly not eligible for admission when the admissions actually took place. He was ineligible since he had not passed in the subject of Physics. There can be no dispute about this fact and even Mr. Praneet Gupta, learned counsel for the petitioner, did not dispute this fact. He, however, submits that there was no fault on the part of the petitioner. The petitioner had sent a letter to the University wherein he had clearly informed the University that he had failed in the subject of Physics and had asked the University to clarify whether he was eligible for admission or not. He, however, submits that there was no fault on the part of the petitioner. The petitioner had sent a letter to the University wherein he had clearly informed the University that he had failed in the subject of Physics and had asked the University to clarify whether he was eligible for admission or not. The University, instead of replying to this letter in clear-cut terms and informing the petitioner that he was not eligible in terms of the Ordinances and the Prospectus, asked him to contact respondent No. 4 - College. Even when he appeared during the counseling, the petitioner produced all his certificates including the certificate showing him to have passed 10+2 but having failed in Physics before the Selection Committee, headed by the Director of Technical Education. At that time also no objection was raised and the petitioner was granted admission in respondent No.4 - College. Mr. Praneet Gupta, learned counsel for the petitioner, further argued that there is no fault of the petitioner and due to the fact that he was offered admission, the petitioner has spent more than a lac of rupees in pursuing his education and two years have elapsed since he had been granted admission. He, therefore, submits that the respondents are estopped from raising any objection with regard to the eligibility of the petitioner at this belated stage. He relied upon various judgments. 14. In Shri Krishan v. The Kurukshetra University, Kurukshetra, AIR 1976 Supreme Court 376, the Apex Court held as follows : "9.............If only the University authorities would have exercised proper diligence and care by scrutinizing the admission form when it was sent by the Head of the Department to the University as far back as December 1971 they could have detected the defects or infirmities from which the form suffered according to the University Statute. The Head of the Department of Law was also guilty of dereliction of duty in not scrutinizing the admission form of the appellant before he forwarded the same to the University." 15. In Sanatan Gauda v. Berhampur University and others, AIR 1990 Supreme Court 1075, the apox Court held us under: "10. This is apart from the fact that find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his mark-sheet alongwith the application for admission. The Law College had admitted him. In Sanatan Gauda v. Berhampur University and others, AIR 1990 Supreme Court 1075, the apox Court held us under: "10. This is apart from the fact that find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his mark-sheet alongwith the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law examinations. He was permitted to appear in the said examination. He also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law Course. The University is, therefore, clearly estoped from refusing to declare the results of the appellants examination or from preventing him from pursuing his final year course." 16. The Madras High Court in M. Hussain and etc. v. Bharathiyar University, Coimbatore and others, AIR 1991 Madras 45, held that where certain students while applying for admission to M.B.B.S. Course in a self-financing institution on the basis of prospectus of the institute did not suppress any facts before the authorities of the institute as well as that of the University und the institute admitted them and allowed them to appear for examinations in certain semesters, the University, therefore, could not prevent the students from prosecuting further the studies for M.B.B.S. Course on the ground that they were not eligible to get admitted into the course itself in view of the fact that they did not obtain minimum percentage of marks. Such an action would be hit by principle of equitable estoppel as well as principle of promissory estoppel. The fact that the Government order governing such institute had stated that admission should be on the basis of minimum percentage of marks was immaterial. If the conditions set out in the Government order are not followed, it may be open to the Government to take action against the Institute for not adhering to the conditions. For that the students who are innocent, should not be penalised. 17. If the conditions set out in the Government order are not followed, it may be open to the Government to take action against the Institute for not adhering to the conditions. For that the students who are innocent, should not be penalised. 17. The Delhi High Court in Kanishka Aggarwal v. University of Delhi and others, AIR 1992 Delhi 105, while considering the entire law on the subject, held that an innocent student should not be punished when there is no fault on his part. The Delhi High Court further held that a student could not be made to suffer for the fault of somebody else when he had neither withheld any information nor played a fraud on the University. 18. The Punjab and Haryana High Court in Deepak Makkar v. Kurukshetra University, AIR 2002 Punjab and Haryana 103, dealt with a similar case. In that case also the petitioner was granted admission to the Bachelor of Technical Course even though he had got compartment in 10+2 Ex amination. The Punjab and Haryana High Court held as under: "8. We have already noticed that the petitioner has not made any misrepresentation to the respondents. He was given admission in the degree course as per the policy of the Government. He has pursued his degree course and has also appeared in two semester examinations of that course. If his admission is cancelled at this stage now it will vest the petitioner with serious inevitable problems and two valuable years of his academic career would be wasted..............." 19. Applying the law laid in above cases, we find that the case of the petitioner is on even better footing. Immediately after his result of 10+2 was declared he sent a letter to the University asking the University in clear-cut terms whether he was eligible for admission in the Engineering College or not since he had failed in the subject of Physics. The University replied to this letter and asked him to contact the College. The respondent-University totally abdicated its functions. It should have been in no uncertain terms informed the petitioner that he was not eligible for admission to the Engineering College. However, the University did not do what was expected of it. The University replied to this letter and asked him to contact the College. The respondent-University totally abdicated its functions. It should have been in no uncertain terms informed the petitioner that he was not eligible for admission to the Engineering College. However, the University did not do what was expected of it. In case he had been informed that he was not eligible for admission in the engineering course, the petitioner could have easily tried his luck in some other course or vocation for which he was eligible. 20. Unfortunately, the grim picture does not end here. Not only was the University callous and negligent in its approach even the admitting authority, i.e. the Directorate of Technical Education did not raise any objection with regard to the eligibility of the petitioner before admitting him in the B. Tech. Course. They, in fact, informed that he had been selected for admission in Mechanical Engineering in respondent No.4 - College. Respondent No.4 - College also did not inform the petitioner that he was ineligible for admission to the B. Tech. Course. They in fact changed his course from Mechanical Engineering to Computer Science and Engineering. We have serious reservations as to whether the College could unilaterally change the course of study from the one allotted by the admitting authority. However, in the present case, we do not intend to delve into this matter any further since the petitioner has spent almost two years in studying Computer Science and Engineering. 21. The fault squarely was that of the University, the Directorate of Technical Education and of the College. The petitioner was not at fault. He had not misrepresented and had not obtained admission by misrepresentation. He has now also passed the qualifying test. Would it be in the benefit of any person to put the clock back by two years? The petitioner had cleared the AH India Entrance Examination also. Therefore, there is no reason why the petitioner should be permitted to be thrown out from the College. Why should he be deprived of the two years education he has obtained when there is no fault on his part? He (or his parents) has spent a huge amount of money on the education. This money has been spent on the basis of the admission granted by the respondents. Why should he be deprived of the two years education he has obtained when there is no fault on his part? He (or his parents) has spent a huge amount of money on the education. This money has been spent on the basis of the admission granted by the respondents. The respondents are, therefore, estopped from challenging his admission on the ground that he was ineligible. It is true that the money that the petitioner may have spent can be ordered to be refunded to him but there can be no measure of damages for the two years of his life which the petitioner will loose if he is not permitted to continue his education. Why should a young boy of 19 years be put in a distressing and depressing situation when there is no fault on his part? 22. In this case, we also find that the University awoke from its deep slumber more than one year after the admission had been granted. Even then, the University did not send any letter to the College or to the petitioner and correspondence was exchanged between the University and the Director of Technical Education. Later copies of some letters were sent to the College and there is exchange of correspondence between the College and the University. However, neither the University nor the Director, Technical Education nor the College thought it appropriate to inform the petitioner as to what was being contemplated with regard to his life and future. It was only some time in December, 2004 that the result of the petitioner was withheld due to non-registration. Thereafter, also the petitioner was permitted to attend the 3rd Semester classes and permitted to appear in the examination under provisional Roll Number. We feel that it is too late in the date for the University to cancel the admission of the candidate. 23. In view of the above discussion, we feel that in the facts and circumstances of the present case, the writ petition has to be allowed and the respondents are directed to permit the petitioner to continue studying in the course of B.E. (Computer Science and Engineering) in respondent No.4 - College. We further direct that respondent No.3 - University shall register the name of the petitioner in the course of B.E. (Computer Science and Engineering) and issue him requisite certificate and also declare his results for the previous three semesters. We further direct that respondent No.3 - University shall register the name of the petitioner in the course of B.E. (Computer Science and Engineering) and issue him requisite certificate and also declare his results for the previous three semesters. 24. In view of the fact that the petitioner had to undergo mental harassment and has to pursue a writ petition instead of his studies, he is awarded costs of Rs. 6,000/- to be paid in equal shares by respondents No. 2,3 and 4. We further make it clear that this order shall not stop respondents No. 2 and 3 from taking any action against respondent No. 4 - College for having changed the course of study of the petitioner. It is obviously clear that any action taken shall be strictly in accordance with law. 25. The writ petition is disposed of in the aforesaid terms.