JUDGMENT Hon’ble Sudhir Agarwal, J.—The petitioners, having been denied admission in B.Ed. course 2007-08 pursuant to combined entrance examination conducted by Chhatrapati Sahu Ji Maharaj University, Kanpur (hereinafter referred to as the “University”) for all State Universities, Degree Colleges affiliated to such Universities, have come to this Court by means of the present writ petition under Article 226 of the Constitution of India. 2. The facts in brief giving rise to the present dispute are that in order to give admission in B.Ed. courses conducted by various State Universities and their constituent, affiliated and associated colleges, the respondent-University issued an advertisement and also published an Information Brochure containing various informations with respect to the said examination. Since this was a joint entrance examination, the candidates were required to give their options with respect to five institutions of their choice and in para 25 of the information brochure it was provided that in case it is not possible to give admission to a candidate in five institutions of his choice, on the basis of his merit position, the University shall be at liberty to give admission to such a candidate in any other institution. It is stated that total number of seats in all institutions for which the combined test was held are about 54,765. The last date for submission of application form was 16.5.2007 and the examination was scheduled to be held on 10.6.2007. The petitioners applied for the said examination and were awarded roll numbers as under : Sl. No. Name of petitioner Roll Number 1. Pawan Kumar 5751060 2. Devesh Dubey 6011023 3. Yogesh Shukla 6081120 4. Harsh Mohan Sharma 6181182 5. Bramhanand Kashyap 5861039 4. The written examination which was scheduled to be held on 10.6.2007 was postponed and ultimately it was held on 22.7.2007. The result of the written examination was declared on 13.10.2007 and the petitioners secured rank in the merit as 3272, 3249, 3504, 4734 and 4834 respectively. The Registrar of the University by a written communication informed the petitioners to attend Lucknow University, Old Campus, Golden Jubilee Hostel, Lucknow on 27.12.2007 for counselling. One of such written communication dated 12.12.2007 sent to petitioner No. 1, Pawan Kumar is placed on record as Annexure-4 to the writ petition. The Registrar of the University by a written communication informed the petitioners to attend Lucknow University, Old Campus, Golden Jubilee Hostel, Lucknow on 27.12.2007 for counselling. One of such written communication dated 12.12.2007 sent to petitioner No. 1, Pawan Kumar is placed on record as Annexure-4 to the writ petition. It is mentioned therein that the candidate has to complete his counselling on the prescribed date itself and the letter of admission or rejection shall be handed over to him by the next day. The said letter also informed the petitioners about off campus online counselling schedule and further provides that if the candidate does not lock his option in the computer, his candidature for seeking allotment would not be considered and for this consequence the candidate himself shall be responsible. A similar notice was also published in the newspaper. A copy of the daily newspaper “Dainik Jagran” dated 18.12.2007 containing such information has been placed on record as Annexure-5 to the writ petition. The petitioners attended the counselling and as required give the institutions of their choice. It is said that there was no information about the number of colleges which were to be given in order of preference. Since selection was made for a very large number of institutions and their entire details were not made public, therefore, the petitioners give preference list of some of the colleges known to them. On 28.12.2007, the petitioners, however, were handed over rejection letters stating that they cannot be granted admission in the institutions of their choice given on 27.12.2007. The language of the rejection letter is similar in all cases of petitioners and reads as under : ”You could not be allotted any seat based on the choices opted by you on December 27, 2007 at Lucknow University, Old Campus, Golden Jubilee Hostel, Lucknow.” 5. The petitioners were surprised to see the rejection letter since as per para 25 of the information brochure if the institution of their choice would not have been available they were entitled to be allotted to any other institution by the University but that was not done. On inquiry the petitioners also came to know that a large number of candidates lower in merit to the petitioners were allotted seats in several institutions aided by the Government namely, Hindu College, Moradabad, Ch. On inquiry the petitioners also came to know that a large number of candidates lower in merit to the petitioners were allotted seats in several institutions aided by the Government namely, Hindu College, Moradabad, Ch. Charan Singh Degree College, Hewra, Etawah, Buddha P.G. College, Kushi Nagar and Ram Nagar P.G. College, Barabanki. The petitioners, therefore, submitted representation dated 28.12.2007 and having no response sent reminder dated 2.6.2008 but of no avail. Hence this writ petition. 6. On behalf of respondents No. 2 to 4 a detailed counter affidavit has been filed wherein the facts in general, as stated in the writ petition, are not disputed. However, it is said that an advertisement was published by the University for off Campus online counselling from 22.12.2007 to 26.12.2007 permitting the candidates who have secured combined general ranking to participate. It was open to the candidates to participate therein from any internet centre in their city and it was not necessary to come to the counselling centre for that purpose. It is also said that the said online counselling was held with the help of National Informatics Centre, New Delhi and a detailed procedure and system of off campus online counselling was also given at the web site. A Copy thereof is also placed on record as Annexure-CA-2 to the counter affidavit. It is said that the petitioners could have given the choice of any number of colleges and there was no restriction at all. In this view of the matter, it is said that online counselling started on 22.12.2007 and the candidates from one to five thousand in merit were required for counselling at different centres from 10.00 am to 4.00 pm. It first conducted simultaneously at 13 centres and, thereafter, the allotment was made final only in the evening and the result was made available on the next date. In para 16 of the counter affidavit it is said that intimation card was issued to all candidates wherein it was mentioned that if candidate will not lock their choice on computer then his case will not be considered for allotment of seats. It is said that normally only those candidates in this process have suffered who gave choice of lesser number of colleges. The petitioners filled in 15 to 20 colleges in preference and, therefore, could not get admission. It is said that normally only those candidates in this process have suffered who gave choice of lesser number of colleges. The petitioners filled in 15 to 20 colleges in preference and, therefore, could not get admission. It is denied that the petitioners are entitled for the benefit of para 25 of the information brochure since the University adopted a new process of counselling inasmuch as, the petitioners themselves having given choice of more than five institutions now cannot take the advantage of clause 25 of the information brochure. It is pointed out that the petitioner No. 5 participated in the second counselling and has been allotted Rajendra Degree College, Bhagipur, Jhunsi, Allahabad but rest of the petitioners did not opt to go for second counselling which was conducted from 11.3.2008 to 18.3.2008 and, therefore, cannot blame the respondents for non admission to the aforesaid course. It is also said that not a single candidate lower in merit has been allotted to any college to which the petitioners gave their choices. It is also stated that earlier there was no programme for online counselling and, therefore, on OMR sheets the candidates were required to fill choice of five colleges but when the University decided to go for on line counselling, in the new system the candidates were allowed to give choice of more colleges for the purpose of getting admission. It is also said that the colleges to which the petitioners have referred alleging that the candidates lower in merit have been given admission therein, are not those in respect of which petitioners had given their option. 7. The petitioners have filed their rejoinder affidavit stating that no information with respect to the total number of colleges and other details were available and, therefore, the suggestion that for all the institutions or maximum number of institutions, preference ought to have been given by the petitioners is neither correct nor otherwise workable. It is also stated that once a procedure for admission has been laid down in the information brochure, it has to be adhered to and the University cannot subsequently decide to proceed with another procedure and, therefore, denial of admission to the petitioners is wholly illegal. It is also stated that once a procedure for admission has been laid down in the information brochure, it has to be adhered to and the University cannot subsequently decide to proceed with another procedure and, therefore, denial of admission to the petitioners is wholly illegal. It is also said that at no point of time either any amendment in brochure was made or notified to the public i.e. the candidates and, therefore, it is not permissible to the respondents to contend that the condition No. 25 of the information brochure would stand amended by the University subsequently. 8. On behalf of University though a supplementary counter affidavit was filed alongwith Application No. 116308 of 2008 with a prayer to accept the supplementary counter affidavit but the said application was rejected by the Court on 15.5.2008, therefore, this Court cannot take notice of the said supplementary counter affidavit. Sri Shailendra, learned counsel for the petitioners contended that there was no assistance to the candidates in respect of number of colleges available for admission as well as seats etc. On 27.12.2007 all the candidates appeared for counselling at 10.00 am as already directed but neither any information of the colleges nor vacancy thereof was available and virtually the candidates, in a blind manner, were supposed to give preference and choice of colleges unaware of the position of the college as well as the vacancy. He contended that once the procedure for admission was specifically provided in the information brochure, the respondent-University was bound to give admission following the procedure provided in the Information Brochure strictly and any deviation therefrom vitiates the selection. He contended that the so called information of the University with respect to off campus online counselling is only with respect to the procedure of that counselling and does not mention anywhere that the procedure prescribed in the information brochure stand amended and the candidates would be given admission only if they can get seats qua the institution of which they have given their choices and not otherwise. It is said that the University in an arbitrary manner has allowed admissions to the candidates, lower in merit, and the persons who were higher in merit including the petitioners have been denied admission only on the ground that the institution for which they gave preference, no seat is available. It is said that the University in an arbitrary manner has allowed admissions to the candidates, lower in merit, and the persons who were higher in merit including the petitioners have been denied admission only on the ground that the institution for which they gave preference, no seat is available. Relying on the Apex Court’s decision in Vijay Jaimni v. Medical Council of India and others, 2005(13) SCC 461 ; Harshali v. State of Maharashtra and others, 2005(13) SCC 464 ; Nimesh Mehta v. State of Maharashtra and others, 2005(13) SCC 707 and Association of Management of Unaided Private Medical & Dental College v. Pravesh Niyantran Samiti and others, 2005(13) SCC 704 , it is contended that merit and rank of the candidates cannot be ignored even while going for online counselling. 9. On behalf of University Sri Neeraj Tiwari, learned counsel besides advancing oral submission has also submitted his written arguments contending that once the petitioners appeared and participated in online counselling giving their choice for more than five institutions, which was a deviation from condition No. 25 of the information brochure, subsequently they cannot turn around and challenge selection on the ground that there was violation of condition No. 25 of the information brochure as the petitioners are estopped from making such a challenge and in support thereof placed reliance on the decisions of Apex Court in Chandra Prakash Tiwari and others v. Shakuntala Shukla and others, 2002(6) SCC 127 ; Union of India and others v. S. Vinodh Kumar and others, 2008(8) SCC 100; Dhananjay Malik and others v. State of Uttaranchal and others, 2008(4) SCC 171 ; Rajasthan Public Service Commission and another v. Harish Kumar Purohit and others, 2003(5) SCC 480 , a Full Bench decision of this Court in Ram Kumar and others v. State of U.P. and others, 2005(3) UPLBEC 2487, and, a Division Bench decision of this Court in Rajendra Kumar Srivastava and others v. Samyut Kshetriya Gramin Bank and others, 2001(3) UPLBEC 2236 . 10. I have heard learned counsel for the parties and also perused the record including the written submissions as well as the various authorities they have cited in support of their rival submissions. 11. From the record, it is not disputed that the petitioners ranked in merit at 3272, 3249, 3504, 4734 and 4834 in a test where the total number of seats are more than 54,000. 11. From the record, it is not disputed that the petitioners ranked in merit at 3272, 3249, 3504, 4734 and 4834 in a test where the total number of seats are more than 54,000. The total number of institutions for which the selection was made, though has not been stated specifically anywhere either in the writ petition or the counter affidavit or supplementary counter affidavit etc. but it is stated at the bar that, in all, the number of institutions for which the entrance examination was conducted is more than 2500. The learned counsel for the University also could not inform the Court about the fact as to whether the details of all such institutions was made available to the various candidates through any well recognized mode of publication containing information about the details of the institutions, number of seats, whether it is an aided institutions or not etc. In such circumstances, in my view, a heavy responsibility lies upon the respondents-University to make the selection and admission much more transparent so that in a judicious manner, a candidate securing higher position in merit, may get admission in a better institution and, if possible, the institution of his choice comparing to a candidate lower in merit. Probably, considering the large number of institutions involved in the selection process, the University provided in the Information Brochure that the candidates should give a preference list of five institutions being the institutions of their choice so that their candidature may be considered for admission on priority in respect to the seats available in those institutions according to the merit secured by the candidate and if it is not possible to provide them admission in the institutions of such choice, then the University would be at liberty to give admission to the candidates in any other institution. This liberty would not confer an arbitrary discretionary power on the University to give or not to give admission to the candidate securing higher merit in an appropriate institution. This liberty would not confer an arbitrary discretionary power on the University to give or not to give admission to the candidate securing higher merit in an appropriate institution. Rather this liberty would mean that if a candidate has given number of choice in his application form and is not able to secure admission based on his merit position to such chosen institutions, then his candidature would be considered by the University to provide him admission in any other institution and that consideration would obviously proceed in a reasonable manner so as to give admission to such candidate in an appropriate institution commensurating and justifying his merit position. Failing to secure admission in the institution of choice by a more meritorious candidate would not place a candidate inferior in position in an advantageous position and that too to the exclusion of higher merit candidate so as to compel him to suffer for all times to come. In other words, disability of a candidate to get admission based on merit in an institution of his choice would not place him in the worst position and that too making him more venerable then he would have been qua the candidates, who are much lower in merit. The merit position cannot be distorted in such a case to such an extreme situation where the candidate lower in merit can get admission in the institutions having better reputation, better infrastructure and much more reasonable in fee structure etc. comparing to other institutions. These observations would equally apply whether the counselling is made manually or on-line. A counselling made on-line ignoring merit position of the candidate or restricting it to small number of institutions to which a candidate due to lack of sufficient information with respect to all the institutions give option would be bad and has to be held arbitrary and in violation of Article 14 of the Constitution if it disturbs and ignore the merit position of the candidate qua institutions for which no such option is exercised by such a candidate who is higher in merit. Various decision cited at the bar on behalf of the petitioners show that the same are kind of interlocutory orders and not final decision on the issue inasmuch in Vijay Jaimni (supra), Harshali (supra), Nimesh Mehta (supra) and Association of Management of Unaided Private Medical & Dental College (supra), the orders of the Hon’ble Supreme Court are all such which were passed on applications and in the nature of interlocutory orders, therefore, cannot be said to lay down any precedent of binding nature. Moreover, even without thereto, it cannot be disputed that in a matter of selection based on merit, a procedure which ignores merit or give advantage to the candidates lower in merit qua those who are higher in merit cannot be said to be a valid procedure and has to be deprecated since such a procedure would be violative of Article 14 of the Constitution being arbitrary and discriminatory. So far as the decisions cited on behalf of the respondents are concerned, there are the judgments in respect to two aspects, one that having participated in the selection, a candidate subsequently cannot challenge the procedure followed in the selection and secondly that in the matter of selection and procedure thereof of the educational institutions, the Court should not interfere ordinarily. As a matter of proposition, for the purpose of the present case, I have no reason to doubt on the correctness thereof since both the propositions are well settled but they do not lay down any rule of thumb that in any case, the Court cannot interfere. In the present case, the rules of the game were laid down by the University itself in the information brochure and without making it known to the candidate that they intend to supersede the same, a modified procedure sought to be adopted only at the stage of counselling and not prior thereto and that too in a piecemeal manner without giving complete and exhaustive information to the candidates concerned. In these circumstances, the proposition that once participated, the candidate cannot challenge the procedure of selection has no application at all and whether the procedure followed by University is arbitrary, it is the bounden duty of this Court to interfere being guard of the rights of the people and under a constitutional obligation to see observance of Rule of law. 12. 12. The proposition that in the matter of selection and admission in educational institutions, the Court should not interfere has no application in the present case inasmuch in none of the authorities, it is said that even if apparently an educational institution adopts a procedure, which is ex facie arbitrary, still the Court is powerless to interfere in such matter. 13. In view of the above discussion and considering the facts and circumstances of this case, this Court is satisfied that the procedure adopted by the University cannot be said to be genuine and valid one wherein the possibility of ignoring merit of a candidate would stand ruled out for the purpose of giving him admission in the appropriate institutions as per the merit ranking of the candidate concerned. Though this Court is satisfied that the procedure adopted for giving admission is ex facie arbitrary, yet since the admissions have already been made and all the candidates given admission are not party before this Court, therefore, in the ultimate result, this Court is not setting aside the entire counselling executed by the University for giving admission in the examination in question. In my view, the ends of justice would meet if the University is directed to provide admission to the petitioners of this writ petition in such institutions to which they now give their options within 15 days from the date of delivery of judgment and in case, it is found that any candidate lower in merit has been given admission in such institutions provided, off course, that the maximum number of seats sanctioned or approved by National Council of Teachers Education does not exceed. In case, in first instance, the petitioners are not provided admission to such institutions, they will be given further opportunity till they get admission in the institution of their choice based on their merit position. 14. The writ petition is allowed with the aforesaid directions. The petitioners shall be entitled to cost which is quantified to Rs. 5,000. ————