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2015 DIGILAW 225 (JK)

University of Kashmir v. Ashfaq Hussain

2015-05-05

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. These appeals are filed against a common order dated 03.01.2013 made in OWP Nos. 554/2012, 1374/2011 and 1397/2011. The case of the respondents/writ petitioners before the learned Single Judge was that the Directorate Distance Education, University of Kashmir invited applications for admission to B.Ed/M.Ed course for Leh and Kargil for the Session 2011-2012, stating that the complete form along with necessary certificates, as reflected in the prospectus, may be submitted at respective study centers by hand or by post i.e. Leh and Kargil only and there was a note appended therewith stating that no application either by hand, post or courier shall be accepted after the last date and the Directorate is not responsible for the postal delay. The time was granted to submit the application forms up to 18.07.2011. 2. It is an admitted fact that based on the merit secured by them the names of the respondents/writ petitioners were included in the select list published on 24.09.2011, however, after issuing the select list a corrigendum was issued by the Director on 29.09.2011 stating that fresh select list will be published and the select list dated 24.09.2011 was kept in abeyance. The reasons stated by the appellants before the learned Single Judge was that while publishing the select list dated 24.09.2011, 1981 applications were not considered as the said application forms were received beyond the cut off date and those applications were also considered and a separate list was drawn and in the said select list the names of the respondents were not included. 3. The contention of the respondents before the learned Single Judge was that in the notification as well as in the prospectus, it was specifically stated that the applications received after the cut off date either by hand, post or courier, shall not be accepted and the Directorate is not responsible for postal delay, and the said clause contained in the prospectus being rule of selection, the same is bound to be followed by the respondents in the writ petition and by allowing the applications received after the cut off date, the select list was altered. By publication of the select list the respondents/writ petitioners have got right to get admission and the action of the appellants in not permitting the respondents to join in the course is illegal. By publication of the select list the respondents/writ petitioners have got right to get admission and the action of the appellants in not permitting the respondents to join in the course is illegal. The learned Single Judge, having noticed the illegality committed by the appellants, instead of quashing the selection already made, has given directions to select the writ petitioners to undergo M.Ed course Chapter Leh in the next available session i.e. for the academic session 2014-15. The said direction is challenged in this appeal by the appellants contending that each year merit is determinative factor for selection to any course and the direction given by the learned Single Judge to select the respondents for M.Ed Course for the future year is contrary to the judgment of Hon'ble the Supreme Court reported in AIR 2000 SC 1476 (Rajiv Kapoor & Ors. v. State of Haryana & Ors.). 4. The learned counsel appearing for the respondents, on the other hand, argued that injustice having been shown towards the respondents by the appellants, the learned Single Judge was right in allowing the writ petitions by moulding the relief and even assuming that the respondents are not entitled to be admitted for the subsequent academic year, as contended by learned counsel for the appellants, the respondents having been denied admission in M. Ed Course 2011-12 batch, they are entitled to get compensation/damages from the appellants. 5. We have considered the rival submissions and the material papers along with the judgment cited by the learned counsel appearing for the appellants. 6. The point arises in this case is as to whether the appellants were justified in considering the applications received belatedly for selection to M.Ed Course 2011-12 beyond the cut off date and whether the appellants are bound to pay compensation to the respondents for denial of admission to M.Ed. Course 2011-12. 7. It is not in dispute that in the notification as well as in the prospectus, it was categorically stated that no applications shall be received either by hand, post or courier beyond the cut off date. Admittedly the respondents have submitted their applications in time and their names were shown in the select list. The appellants considered the applications received beyond the permissible time numbering 1981 and altered the select list due to which the respondents were denied of admission for the year 2011-12. Admittedly the respondents have submitted their applications in time and their names were shown in the select list. The appellants considered the applications received beyond the permissible time numbering 1981 and altered the select list due to which the respondents were denied of admission for the year 2011-12. It is also an admitted position that prospectus is the rule of selection and everyone, including the issuing authority, is bound to follow the conditions contained in the prospectus to give sanctity to the selection procedure. Thus the conduct of the appellants in considering the applications received belatedly and giving them selection and denying selection to the respondents is definitely in violation of the rules of selection i.e. the prospectus. Whether the applications received by post beyond the last date fixed in the prospectus can be considered for selection came up for consideration before the Full Bench of the Madras High Court in the decision reported in (1995) II, MLJ 158 (R. Vinothkumar v. The Secretary, Selection Committee) and the majority of Judges held that the petitioner therein having chosen the post office as his agent to send his application, delay on the part of the agent will bind the principal. Hence it was held that postal delay cannot be a ground to condone the delay in receiving the application particularly when in the prospectus it was specifically stated that belated applications shall not be entertained. 8. The respondents, even though have established their right to get admission, they have not impleaded the persons selected as party respondents and without their presence their selection to the M.Ed Course cannot be quashed. Further, the academic year 2011-12 was over before the order of the learned Single Judge, hence the learned Single Judge was justified in not interfering with the admissions already made. However, the direction given by the learned Single Judge to give admission to the respondents for the next academic session i.e. 2014-15 is not proper. 9. Hon'ble the Supreme Court in the decision reported as AIR 2000 SC 1476 (Rajiv Kapoor and Ors. v. State of Haryana & Ors.), considered the very issue and in paragraph 16 it is held thus:- "16. The dispute relates to the academic session of the year 1997 and we are in 2000. 9. Hon'ble the Supreme Court in the decision reported as AIR 2000 SC 1476 (Rajiv Kapoor and Ors. v. State of Haryana & Ors.), considered the very issue and in paragraph 16 it is held thus:- "16. The dispute relates to the academic session of the year 1997 and we are in 2000. To utilize the seats meant for the next academic year, by accommodating those candidates on 1997 vintage, would amount to deprivation of the legitimate rights of those who would be in the fray of contest for selection, on the basis of their inter se merit for the session of 2000, taking into account the performance of the candidates of 1997 in that year. The suggestion to create additional/seats, apart from the objections from the State, cannot also be acceded to for the purpose of admitting only the appellants in as much as any additional seats even if allowed to be created during a particular year must be filled up only on the basis of the standards and merit performance of the candidates participating in the contest of the said year. That apart, some of the appellants appear to have not got admitted into Diploma courses, having not been selected for degree courses and there is no scope for adjusting the period of study put by them while pursuing Diploma course, as one spent for PG Degree course. There is also a positive prohibition for a candidate pursuing PG Diploma course in a particular discipline to claim to do PG Degree course in a different discipline." Applying the principles stated in the said judgment to the facts of this case, the direction issued by the learned Single Judge, insofar as directing the appellants to give admission to the respondents to the M.Ed Course for the academic session 2014-15, cannot be allowed to stand and even that academic year is over as of now. In such circumstances the respondents are entitled to get compensation for denial of admission to the M.Ed Course for the academic year 2011-12. In the above cited case Hon'ble the Supreme Court, taking note of the illegality committed by the University has allowed costs of Rs. 10,000/- in favour of the said Postgraduate students who were the appellants before Hon'ble the Supreme Court. In the above cited case Hon'ble the Supreme Court, taking note of the illegality committed by the University has allowed costs of Rs. 10,000/- in favour of the said Postgraduate students who were the appellants before Hon'ble the Supreme Court. Considering the nature of the course for which the respondents were selected and were not allowed to join the Course for the academic year 2011-12, we are of the view that interest of justice will be met by ordering Rs. 5000/- to each of the respondents as compensation for the wrongful denial of admission to the M.Ed Course for the academic session 2011-12. The said amount, as ordered, shall be paid to each of the respondents by the University of Kashmir, within a period of four weeks from the date of receipt of copy of this order.