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2009 DIGILAW 1126 (DEL)

NEELAM CHOPRA v. UNIVERSITY OF DELHI

2009-10-20

GITA MITTAL

body2009
JUDGMENT Gita Mittal, J. (Oral)-The petitioner was admitted to the first year B.A. (Hons.) Geography course in the Swami Sraddhanand College-respondent No.2 herein which is affiliated to the University of Delhi-respondent No.1 herein for the academic session 2008-09 after completion of the B.A.(Hons) Geography 1st year course. The petitioner is presently in the second year of the course. The petitioner is stated to be a resident of 2462, Hudson Lane, North Campus, New Delhi-l10009. The writ petition is premised on the fact that the respondent No. 2 college is situated at a distance of more than 15 kms. from the petitioners residence. The petitioner has submitted that she suffers from allergic rhinitis and travelling this long distance twice everyday aggravates her health problem. She has received medical advice that she must reduce the travel. The petitioner submits that she also suffers from a myopic vision and is wearing spectacles with a power of 7.75 which makes it difficult for her to read bus numbers. For these reasons, commutation/commuting over this distance is extremely difficult for her. 2. The petitioner has also contended that she hails from Gujarat. The petitioner has submitted that she does not have a father and that her guardian Sh. Ravi Arora is residing in the State of Gujarat. Perusal of the documents enclosed with the counter affidavit filed by the respondent No.2 would show that the petitioner has done schooling in hostels outside Delhi. 3. The writ petition has been necessitated for the reason that in view of such difficulties, on completion of the first year of her course, the petitioner made a request for migration and the Kirori Mal College which is located on the North Campus has given a no objection for acceptance of the petitioners migration to this college in the sec0nd year of the B.A. (Hons.) Geography Course. The petitioner made applications dated 16th, 22nd and 23rd September, 2009 to the respondent No.2 seeking grant of the appropriate certificate in accordance with Ordinance IV of the University Calendar dealing with migration which requires a leaving certificate from the Principal of the College which a candidate is leaving. However this certificate has not been granted till date. The representation made on 24th September, 2009 for the same purpose was also of no avail. Hence the present writ petition. 4. The present writ petition is vehemently opposed by Dr. However this certificate has not been granted till date. The representation made on 24th September, 2009 for the same purpose was also of no avail. Hence the present writ petition. 4. The present writ petition is vehemently opposed by Dr. Aurobindo Chose, learned Counsel representing the respondent No.2. A challenge is laid to the medical certificates dated 7th July, 2009 which have been furnished by the petitioner to the respondent No.2 on the grounds that they are fabricated and forged. It is submitted that the first certificate submitted by her did not mention any travelling distance which was causing the aggravation of the petitioners alleged medical problem. Learned Counsel contends that the allergic rhinitis has no co-relation to the distance which is required to be traveled. 5. Perusal of the certificates which have been issued by the respondent No.2 on record would show that both have stated that the petitioner is suffering from allergic rhinitis and advise the petitioner to travel the least distance and make efforts to avoid the same. The only addition in one of the certificates is to the effect that it has also recorded that while travelling the distance of more than 10 kms., the petitioner is suffering from allergic rhinitis. It would appear that the petitioner was aware that she was seeking migration and had to submit the same to the respondent No.2 and for this reason, the certificate has also taken note of the distance which she is required to travel. No fault can be found with the certification by the medical authorities with regard to the problem with which the petitioner is suffering. Certainly travelling long distance in the city on crowded roads would aggravate respiratory diseases and problems as pointed out by the medical experts. The problem which the petitioner is suffering from has been opined to be relateable to travelling and it cannot be denied that while travelling a distance of 15 kms, the petitioner would be required to pass through a lot of traffic which would certainly expose her to pollution due to traffic and from other sources causing aggravation of her medical problems. 6. 6. Apart from the above, a plea has been made on behalf of the respondent No.2 that prejudice results to the institution which has contributed to the improvement in the petitioners academic performance standards and that there would be a wastage of a seat in the respondent No.2-college. This may be a material consideration. However, this by itself would not be sufficient to deny migration to a student. The welfare of the student cannot be ignored. The petitioners choice is premised on such welfare which is based on difficulties which she is facing on account of the long commutation entailed in reaching the respondent No.2. The petitioner has also expressed difficulty in reading the number of the buses in which she has to travel on account of myopic vision which is certainly a genuine difficulty and cannot be ignored. These are certainly extremely relevant factors. The petitioner has made a categorical submission that the long travel is problematical for her. She is also not a local resident who has grown up in Delhi. The college to which she proposes to migrate is located close to her place of residence. 7. My attention is drawn to an order dated 18th November, 2008 passed in W.P.(C) No. 6939/2008, Anika Jain v. University of Delhi and Anr., 156 (2009) DLT 13, wherein on the issue of migration, the Court held as follows: "6. No doubt, the petitioner has no vested right to seek migration. However, if a student is able to disclose good reasons for seeking migration, the college cannot act whimsically and seek to withhold the NOC in an arbitrary manner. The discretion to be exercised by the Principal of the College while considering the application has to be exercised objectively and without any feeling of possessiveness in respect of a student, either on account of the fact that the student provides revenue to the college, or is otherwise a meritorious student. The welfare of the student cannot be ignored and brushed aside and the Principal cannot permit his vision to be blinded by the perceived welfare of his college while considering the application of a student seeking migration. It is not that a student who seeks admission in a college can be bound down as a prisoner or a slave. The aspect whether the migration would be in the interest of the petitioner has not even been considered by the Principal. It is not that a student who seeks admission in a college can be bound down as a prisoner or a slave. The aspect whether the migration would be in the interest of the petitioner has not even been considered by the Principal. Hansraj college is a well established college, which had a higher cut-off percentage than the respondent college for the course in question and the petitioner is likely to save on time, energy and money in commuting from her present place of residence in Shahdara to Hansraj College, than she would spend in commuting between Shahdara and Rohini/Pitampura. The interest of the respondent colI. cannot be said to outweigh the interest of the petitioner. The choice of the petitioner has to be respected. She would not have sought permission for migration, had it not been necessjtated on account of her change of residence. The fact that the petitioner in a young girl and has now shifted to Shahdara; the distance between Shahdara and Rohini is much larger, compared to the distance between Shahdara and Hansraj College which is situated in the heart of North Campus, and; the fact that even when the petitioner had earlier sought admission, distance of her college from her residence was a relevant consideration, are all germane considerations and could not have been overlooked by the Principal of respondent No.2 college. Considering the fact that the geographic distance from Shahdara to Hansraj College is much less compared to the distance to Rohini, the submission of learned Counsel for the respondent college with regard to the petitioners commutation cannot be accepted." It is therefore clear that no college can deny or refuse to grant such a certificate for reasons such as loss of revenue to the college or that the student seeking migration is a meritorious student. Certainly the propounded reason that the respondent No. 2 college has contributed to a students development would be inconsequential when tested against the welfare of the student. Under no circumstances the interest of the college can outweigh the interest of the petitioner. Further, on a comparison of the geographic distance, the fact that the student would have to travel less is a relevant and material consideration and cannot be overlooked by the respondents. 8. Under no circumstances the interest of the college can outweigh the interest of the petitioner. Further, on a comparison of the geographic distance, the fact that the student would have to travel less is a relevant and material consideration and cannot be overlooked by the respondents. 8. My attention is drawn to the pronouncement of the Division Bench reported at 71 (1998) DL T 202 DB in a case entitled Aman lchhpuniani v. Vice-Chancellor, Delhi University and Ors., wherein the Division Bench had opportunity to consider issues with regard to migration between colleges within the Delhi University and Ordinance IV which deals with the same. The Bench held as follows: “12. We are conscious of our limitation on jurisdiction to judicially review a decision taken in the field of academics. In Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kumarsheth, AIR 1984 SC 1543 , Their Lordships have held- The Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preferences to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational Institutions and the departments controlling them. 13. However, that does not amount to saying that the decisions taken by the administrative authorities in the field of academics and education are immune from judicial review and no writ can issue for securing performances of statutory duty cast on such authorities. In S.C. Lekhraj v. N.M. Shah, AIR 1966 SC 334 , Their Lordship have held that a writ of mandamus may be granted where there is a statutory duty imposed upon the officer concerned and there is a failure of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the Subordinate Tribunals and officers exercising public functions within the limits of their jurisdiction. 14. A writ of mandamus may issue not only for enforcement of a right but also for compelling performance of a duty. The very provision for migration from the College to another within the University enacted by Ordinance IV contemplates the existence of a right to migrate. We will not go on to the extent of saying that such a right is a vested unbridled right. The very provision for migration from the College to another within the University enacted by Ordinance IV contemplates the existence of a right to migrate. We will not go on to the extent of saying that such a right is a vested unbridled right. Nobody can be permitted to migrate just for whim and fancy. Good education is a scarce commodity and good Institutions displaying pieces of good education on their selling counters are equally scarce. The seats are invariably limited because the number of seats depends on very many considerations including administrative and financial. Once a student has been allowed admission in a particular Institution in a particular Course of study he occupies that seat excluding others in waiting from entering the Course by necessary implication. If such a student is allowed to leaves the seat and migrate to another Institution at his sweet will or merely for whim and fancy, he is certainly depriving someone else known or unknown from learning by leaving the seat vacant. 16. Nevertheless, the existence of Ordinance IV does contemplate migration. The provision also casts a duty on the Principal of the College from which migration is sought to exercise his discretion and take a decision on prayer for migration guided by reason keeping in view the relevant considerations and not merely by whim and caprice. Like all other discretionary powers vesting in public authorities, the power to forward an application seeking migration is also coupled with a duty. Each prayer shall have to be dealt with on its own individual merits. If the prayer for migration be a bald prayer it may not be allowed merely for asking. On the contrary if there are valid reasons assigned providing reasonable justification for such demand, the Principal on being satisfied of the availability of just grounds for migration, is duty bound to forward the application. Else the exercise of discretionary power would stand vitiated for unreasonableness or arbitrariness. 18. Every student aspires to have the best education and for that purpose searches for the best Institution accessible to him and within his means. Having opted for an educational Institution and having been successful in securing admission therein ordinarily he would not opt out of it unless there be reasons for doing so. 18. Every student aspires to have the best education and for that purpose searches for the best Institution accessible to him and within his means. Having opted for an educational Institution and having been successful in securing admission therein ordinarily he would not opt out of it unless there be reasons for doing so. Students in School and even upto initial years of the College are invariably advised by their parents and guardians in choosing Course of study and the Institution. While asking migration they will ordinarily have the Counsel of their parents and guardians without which they would not decide to migrate. Inappropriate cases the Principal would do well to have a dialogue with the parents or guardians of the student before taking a decision on the students request for migration. Applications made by the students to their teachers and Principal are not drafted on legal advise. They have to be dealt with in an atmosphere full of affection and harmony. An interview or dialogue between the Principal and the student, accompanied by parents or guardian if need be, would bring out the real reason for the prayer for migration enabling a just decision thereon by the Principal. 19. No Institution can afforded to retain good students with it by forcing them to do so. They have to be persuaded and made to feel convinced. A good student leaving a good institution is a contradiction in terms. It is equally true that a student cannot be allowed to migrate if Institutional discipline would suffer in permitting him to do so. To illustrate, student faci/1g disciplinary proceedings in an educational institution cannot be allowed to migrate if motivated by the idea of getting rid of such proceedings. 23. To sum up, in our opinion: (i) to migrate from one College of the University to another is not a vested right of student. A student may seek migration from one College to another, if there be reasons for doing so. Ordnance-IV confers discretionary power on the Principal of the College from which migration is sought to forwarded or not to forward a prayer by a student seeking migration. The power is coupled with a duty to act reasonably guided by relevant consideration not by whim or caprice. Ordnance-IV confers discretionary power on the Principal of the College from which migration is sought to forwarded or not to forward a prayer by a student seeking migration. The power is coupled with a duty to act reasonably guided by relevant consideration not by whim or caprice. The welfare of the student and the institution have both to be kept in view and weighed - if there be conflict between the two; (ii) A student has a right to choose an educational Institution of his choice while seeking an admission, but such right cannot be exercised with the same vigour and vitality while seeking migration; (iii) A request by student seeking migration for reasons relevant and germane to such prayer may not be denied unless the Principal be satisfied of the non-availability of the grounds or be of the opinion that the migration will not be in the interest of the student or the interest of he institution outweighs the interest of the student. The choice of the student has to be respected by giving due weight; for no sensible student would ordinarily like to leaves the institution which he had chosen to join." The Division Bench granted relief to those petitioners who had informed the University as to the reason due to which they were seeking migration. The two writ petitions where the petitioners had not given reasons in their application, were given liberty to make fresh applications setting out the reasons for migration and the principal of the college was required to dispose of the same within three days of receipt of the application. The principal was required to give reasons for the decision in case a different decision was being taken. 9. In W.P.(C) Nos. 20013/2004, 1467/2005 and 652/2005 entitled Radhika Garg v. Delhi University and Ors., 119 (2005) DLT 225, issues relating to migration were raised. On a consideration of the entire law of migration by a judgment dated 24th March, 2005, it was held as follows: "75. It is apparent that the issues raised in the present petition and the validity of the action of the respondents will arise repeatedly so long as the provisions for migration exists and students would continue to make applications. On a consideration of the entire law of migration by a judgment dated 24th March, 2005, it was held as follows: "75. It is apparent that the issues raised in the present petition and the validity of the action of the respondents will arise repeatedly so long as the provisions for migration exists and students would continue to make applications. In addition to the directions of the Division Bench of this Court in Aman Ichhpuniani’s case that an application stating relevant reasons for seeking migration would deserve to be favourably considered unless the reason was found to be false, however, bald applications for migration on the sole ground of a student wishing to migrate may not invite exercise of the discretion favourably in favour of the candidates. However, it is imperative that the respondents follow a definite procedure while considering the applications for migration. From the aforestated pronouncements of this Court and consideration of the issues raised in the present writ petition, the following principles can be laid down: (i) Consideration of an application for migration involves a consultative process between the head of the institution or the recommending body with the student and the respective parents/ guardians. (ii) Consideration and decision making on the application have to follow a time bound frame. The entire process has necessarily to be completed expeditiously giving time to the student to prepare for the exams at the end of the academic session for which the application has been made. Under no circumstance can the decision making be protracted into the next academic session. (iii) The consideration of the application entail application of mind to the reasons set out, materials placed in support thereof, welfare of the student and balancing of what may sometimes be conflicting interests of the students vis-a-vis the institution. (iv) Rejection of an application must be by a reasoned order. (v) Communication of the decision taken on an application for migration has to be made immediately upon the decision having been taken. (vi) The decision taken must be communicated immediately to the concerned student, the institution wherefrom migration is sought as well as the institution to which migration is sought. (v) Communication of the decision taken on an application for migration has to be made immediately upon the decision having been taken. (vi) The decision taken must be communicated immediately to the concerned student, the institution wherefrom migration is sought as well as the institution to which migration is sought. (vii) In the event of admissions having been granted to the institution to which migration is sought in circumstances as the present case and the next academic session having commenced, no cancellation of admission ought to be permitted without service of notice to show cause and opportunity of hearing by the competent authority." 10. No case is made out on behalf of the respondent that the petitioner would not be entitled to migration under the stipulation contained in Ordinance IV or under the principles laid down by this Court in the aforenoticed pronouncements. 11. Dr. Ghose has vehemently objected to the petitioners action in the first approaching the Kirori Mal College and not procuring a leaving certificate from the respondent No.2. Such objection has to be noted only for the purposes of rejection inasmuch as the same is not supported by any decision rejecting the petitioners requests for this or any other reason. This reason is advanced only in these proceedings. 12. In the instant case, the petitioner has repeatedly approached the respondent No.2 for the requisite certification. Despite passage of considerable period, no action whatsoever has been taken on the request made by the petitioner. 13. In the instant case, apart from a bald denial in the counter affidavit, the requests of the petitioner have not been considered on the well settled principles noted hereinabove. Valuable time has been wasted. Grave prejudice undoubtedly results to the petitioner if she is compelled to travel even on health issues. In this view of the matter, I am not inclined to premise adjudication in the present matter on the technical view that the petitioner approached the college to which she migrates and then approached the respondent No.2. The respondent No.2 was bound to have considered the representations expeditiously in the light of the above principles. The same have not been considered at all. For all these reasons, this writ petition deserves to be allowed. The respondent No.2 was bound to have considered the representations expeditiously in the light of the above principles. The same have not been considered at all. For all these reasons, this writ petition deserves to be allowed. Accordingly, it is directed that the respondent No.2 shall issue the requisite certifications or the no objection certificate to the petitioner forthwith permitting her to migrate to the Kirorimal college. In case any procedure has to be completed by the respondent No.1 also in this behalf, the same shall be completed immediately on the petitioner approaching the concerned authorities of the respondent No. 1. The process of migration of the petitioner to the Kirori Mal College shall be completed, in any case, within a period of 10 days from today. This writ petition is allowed in the above terms. Dasti to parties. Writ Petition allowed.