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2019 DIGILAW 1904 (JHR)

Abhishek Krishna v. Iysha Kumari

2019-11-22

SUJIT NARAYAN PRASAD

body2019
JUDGMENT Sujit Narayan Prasad, J. - All the writ petitions since are having the similar grievance and as per the prayer made by the learned counsel for the petitioners, have been listed together for analogous hearing and accordingly heard together and are being disposed of by this common order hereunder as. 2. The writ petitions are under Article 226 of the Constitution of India whereby and whereunder the petitioners have prayed for a direction for quashing letter bearing No. Acad/72 dated 07.08.2019 (Annexure-8) cancelling the petitioners'' admission in B.Tech course and for further direction staying the ongoing process of admission at B.I.T., Sindri or in alternate direct the respondents to keep the respective seats of the petitioners vacant till the pendency of the writ petitions. 3. The brief facts of the case as per the pleadings made in the writ petitions are that in pursuance to the advertisement No. JCECEB/94/18-40 dated 25.06.2019, applications have been invited for preparing the State merit rank on the basis of Joint Engineering Examination (JEE) Main 2019 result for conducting the counseling and admission in Engineering Under Graduate Course from candidates who opted Jharkhand as State of eligibility in JEE, initially the date for submission of online application was up to 03.07.2019 but subsequently it was extended to 05.07.2019. The petitioners had appeared in the JEE Main Examination and got their respective All India Rank in JEE Main Examination-2019 and thereafter applied for counseling in terms of the criteria as laid down by the Jharkhand Combined Entrance Competitive Examination Board. The Board, after assessing the respective merit position, has prepared a final State merit list on 08.07.2019 of 3509 candidates. A detailed online counseling schedule was notified on the website and in pursuance thereto the petitioners had applied by making necessary payments and disclosing his choice in the stream and the college, the petitioners had appeared and upon being successful on counseling, took admission which was confirmed and accordingly the hostels have also been allotted. The petitioners have been communicated with a communication dated 07.08.2019 that in the light of the letter dated 06.08.2019 the admissions have been cancelled. The petitioners have been communicated with a communication dated 07.08.2019 that in the light of the letter dated 06.08.2019 the admissions have been cancelled. The Board has come out with another advertisement issued on 23.07.2019 for fresh registration for preparation of State merit rank for second round of counseling on the basis of JEE Main Examination-2019 result by specifying therein that the same has been issued for those candidates who have not registered their names earlier and now wish to get their names registered in the State Merit List with the further assertion therein that the candidates who have already registered their names need not submit their application forms again. In terms of the said advertisement, the second round of counseling has been conducted basis upon which a fresh final State Merit List was notified on 29.07.2019 but the petitioners who had already taken admissions have not found their name mentioned in the second list against the course which has been opted by them. 4. The petitioners, being aggrieved with the said action, has filed the present writ petitions inter alia on the ground that :- (i) The cancellation, even if correct, since seats are available they ought to have been admitted against the available vacant seats. (ii) Accommodating the candidates who had not participated in the first counseling, is not proper. (iii) Cancellation without notice is not proper and the ground of Article 14 of the Constitution of India has been agitated. 5. The candidates who were not on fray in the first counseling, have been included in the final merit list prepared on the basis of second counseling. 6. This Court has heard the matter on 19.11.2019 and the learned counsel for the respondent Board Mr. A.K.Mehta as also learned counsel appearing for the respondent B.I.T. Sindri, Mr. M.K.Roy, have sought for time to seek instruction and file counter affidavit and in pursuance thereto, counter affidavits have been filed. 6. This Court has heard the matter on 19.11.2019 and the learned counsel for the respondent Board Mr. A.K.Mehta as also learned counsel appearing for the respondent B.I.T. Sindri, Mr. M.K.Roy, have sought for time to seek instruction and file counter affidavit and in pursuance thereto, counter affidavits have been filed. The stand of the Board in the counter affidavit is that in pursuance to the circular issued by the State of Jharkhand on 08.03.2019 the Higher Technical Education and Skill Development Department, Government of Jharkhand has come out with the said circular in the name of the Governor of the State by taking a policy decision to fill up the seats in the colleges situated within the jurisdiction of the State of Jharkhand on the basis of respective merit position of the JEE Main Examination-2019 instead of taking a test by national testing agency. In pursuance to the aforesaid decision, the advertisement was published inviting online applications for counseling and in pursuance thereto, the petitioners have appeared and found to be successful and thereafter they took admissions but provisionally. 7. Subsequent to the same, some complaints have been made by the candidates with respect to allocation of courses to the different candidates on the basis of first online counseling. 8. The Board, being the competent examining body, has allotted the work of counseling to an agency thought it proper to look into the veracity of the said complaint and in course thereof, the veracity has been tested in which it has been found that there is mismatch in the courses vis- -vis category of the candidates. It has been stated in the first counter affidavit filed on 19.08.2019 that in the B.I.T., Sindri altogether 792 seats were available. The categorywise seats available are as under :- General - 340 seats S.T. - 177 seats S.C. - 68 seats B.C.-I - 54 seats B.C.-II - 41 seats E.W.S. - 68 seats S.N.Q. - 10 seats T.F.W. - 34 seats It has further been stated therein that technical snag developed in the software which resulted into the error in the allotment/recommendation of seats and it has been found that in respect of 501 candidates their Branch and seat opted category has been found to be same as had been said earlier, therefore, no correction is required to be made in respect of 501 allotments. With respect to 34 allotments pertaining to T.F.W. (Tuition Fee Waiver) category, no mistake has been found nor there has been any objection from any candidates against this category, hence, no revision has been made therein. However, the recommendation/allotment of 172 candidates there are 88 candidates whose seats opted category is the same but there is difference in Branch. As regards 27 candidates, their seat opted category is different in the revised list but their Branches are same. The balance 57 candidates both the seat opted category and Branches are different. 9. The Board, after considering the aforesaid mistake, has taken a decision on 06.08.2019 giving therein the details of the error committed due to technical snag in the software and communicating to the Director, B.I.T., Sindri, Dhanbad for cancellation of the admissions of these candidates who are 172 in numbers by making a notification in this regard for second counseling with the specific assertion that the candidates who have already registered for online counseling need not to again register. 10. In pursuance to the said decision dated 06.08.2019, the B.I.T., Sindri has communicated about the same to the petitioners on 07.08.2019 making reference of the decision dated 06.08.2019. 11. On the basis of the aforesaid fact, submission has been advanced by Mr. A.K.Mehta, learned counsel appearing for the Board that in order to rectify the error committed due to technical snag in the software, the second counseling has been decided to be conducted. Further submission has been made that when the first counseling has been cancelled pertaining to 172 candidates, therefore, the petitioners have got no right to claim his position on the basis of first counseling and moreover, all the candidates have participated also in the second counseling and some of the candidates have been allotted the courses in B.I.T., Sindri and some to the different institutions falling under the State of Jharkhand. It has further been agitated by referring to the communication dated 23.07.2019 as has been annexed as Annexure-9 by which the second online application has been invited wherein the specific reference has been made leaving it open to the candidates to file objection, if any, but no such objection has been filed by the petitioners and, therefore, they have ceased their right to question the final decision taken on the basis of the second counseling. Furthermore, since the petitioners have participated in the second counseling, thereafter they have also ceased to challenge the decision based upon the second counseling. 12. So far as the contention of the learned counsel for the petitioners that the foreign candidates have been included in the fresh list, the same has been objected by submitting that the candidates whose names found mentioned in the second list are on the basis of the comparison based upon their performance in the JEE Main Examination-2019 and after the cancellation of the first counseling, since a fresh list has been prepared strictly on the basis of the merit position based upon the JEE Main Examination-2019, therefore, new candidates have come into picture. 13. Mr. M.K.Roy, learned counsel appearing for the B.I.T., Sindri has submitted that they being the college, is to act in pursuance to the decision taken by the Board. 14. This Court, after appreciating the aforesaid submission, found therefrom the issues which are to be decided i.e. (i) Whether in case of any error committed in the preparation of the merit list if it would be revised to rectify the error, can it be said to be improper and illegal? (ii) Whether the petitioner has got vested right at the time when the admissions were provisional? (iii) Whether the petitioners can be allowed to question the second counseling after participating in the same? (iv) Whether any prejudice has been caused to the petitioners if they are being admitted in respect of their respective merit position based upon the JEE Main Examination-2019? (v) Whether the merit position in pursuance to the policy decision which has been based upon the selection of the JEE Main Examination-2019, can it be said to be unjustified? 15. So far as the first issue that in case of any error can it be allowed to be perpetuated is concerned, the law is settled in this regard that if any error or illegality is there, it has to be rectified the moment it came to the notice of the competent authorities otherwise it will lead to accelerating the illegality. Reference in this regard be made to the judgment rendered in the case of Basawaraj and Anr. vs. Special Land Acquisition Officer, (2013) 14 SCC 81 , which reads hereunder as:- "8. Reference in this regard be made to the judgment rendered in the case of Basawaraj and Anr. vs. Special Land Acquisition Officer, (2013) 14 SCC 81 , which reads hereunder as:- "8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. Reference may also be made to the judgment rendered in the case of and Chaman Lal vs. State of Punjab and Ors., (2014) AIR SC 3640 pr.15, which reads hereunder as:- 15. Moreso, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise it may not be a ground to grant similar relief to others. This Court in Basawaraj and Anr. vs. The Spl. Land Acquisition Officer, (2014) AIR SC 746 considered this issue and held as under: " It is settled legal proposition that Article 14 of the Constitution is not meant to .................................................... administration impossible." 16. This Court in Basawaraj and Anr. vs. The Spl. Land Acquisition Officer, (2014) AIR SC 746 considered this issue and held as under: " It is settled legal proposition that Article 14 of the Constitution is not meant to .................................................... administration impossible." 16. It is the case of the respondents that there is technical snag in the software and to that effect specific stand has been taken by the Board in the affidavit filed on 19.08.2019, as would appear from paragraph 9 of the counter affidavit, supported by the decision dated 06.08.2019 as contained under Annexure-C to the said counter affidavit. 17. Response to the said affidavit has been filed by the petitioners and rebuttal is there, however, Mr. Rajiv Sinha, learned counsel for the petitioner has submitted that how it is a technical snag, nothing has been explained. This Court, after going through the decision taken by the Board on 06.08.2019, as under Annexure-C to the affidavit dated 19.08.2019, has found therefrom that altogether 792 seats are there in the B.I.T., Sindri. On scrutiny, no error has been found with respect to other candidates but for remaining 172 candidates the error has been found with respect to mismatch in between the category and the Branch and the said error has led the Board to cancel the admission of 172 candidates to which the petitioners also falling. Therefore, due to the error in the system, error has been committed in allotment of the Branch and if to rectify the said error, decision to cancel the admission of 172 candidates has been taken, it cannot be said to be unjustified, rather, if it would be allowed to go, it will be nothing but to accelerate the illegality and the same would be contrary to the position of law that an illegality cannot be allowed to be perpetuated. 18. The second issue about the vested right as to whether any vested right has been accrued in favour of the petitioners at the time when their admissions were provisional. The stand has been taken by the respondents Board that the admission was provisional by referring to the allotment letter, while the same has been disputed by the learned counsel for the petitioners that provisional means subject to deposit of fee and other conditions provided in the order of allotment. 19. The stand has been taken by the respondents Board that the admission was provisional by referring to the allotment letter, while the same has been disputed by the learned counsel for the petitioners that provisional means subject to deposit of fee and other conditions provided in the order of allotment. 19. This Court, after appreciating the rival submissions in order to answer this issue has scrutinized the allotment letter wherefrom it is evident that allotment letter on the caption it is being reflected as "provisional" although provisional subject to fulfillment of certain conditions incorporated therein but the question herein if the admission is provisional meaning thereby it is not permanent on any reason whatsoever. This Court has considered the right of the petitioner as to whether it will be said to be a vested right when the nature of admission is provisional. Here it would be relevant to deal with the vested/accrued right. Rights are ''vested'' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster''s Comprehensive Dictionary (International Edition) at page1397, the word ''vested'' is defined as a tenure subject to no contingency; complete; established by law as a permanent right, vested interest. The word ''vested'' is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word ''vest'' has also acquired a meaning as "an absolute or indefeasible right". It had a ''legitimate'' or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfilment due to change in law by the legislature. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course. Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course. In the light of the definition of the "vested right", it is evident that right accrues to person or persons attached to an institution or building or anything whatsoever, meaning thereby, if an incumbent is claiming a vested right, he is to substantiate before the court of law that the right has been created in his favour by an order passed by the competent authority in accordance with law. It is evident from the definition of the vested right that right would be said to be vested right, permanent and continuous in nature and if that be so, the question of prejudice or following of principles of natural justice will arise. Herein, since the admission is provisional in nature, the same being not permanent, therefore, this Court is of the view that the petitioner has got no vested legal right claiming to their perfected right over the admission taken on the basis of the first counseling. 20. The third question pertains to as to whether the petitioners can be allowed to question the second counseling after participating in the second counseling and found to be lower in the merit list. The admitted position herein is that the petitioners have participated in the second counseling in pursuance to the notice issued on 23.07.2019 and since they have participated, therefore, there is no question of making any objection as contemplated to be objected under the said order. It is settled position of law that once a candidate participates in the selection process, he cannot turn around and challenge the merit list if found to be unsuccessful or on any ground whatsoever as has been held by Hon''ble Apex Court in the case of Dr. G. Sarana Vs. University of Lucknow and Others, (1976) 3 SCC 585 , in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, (1986) Supp1 SCC 285 , in the case of Marripati Nagaraja and Others Vs. Government of Andhra Pradesh and Others, (2007) 11 SCC 522 and in the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Others, (2011) 1 SCC 150 . Akhilesh Kumar Shukla and Others, (1986) Supp1 SCC 285 , in the case of Marripati Nagaraja and Others Vs. Government of Andhra Pradesh and Others, (2007) 11 SCC 522 and in the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Others, (2011) 1 SCC 150 . In the case of Dr. G. Sarana Vs. University of Lucknow and Others (Supra), the Hon''ble Apex Court at para 15 has held which reads hereunder as :- "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal''s case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: "It seems dear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point." The Hon''ble Apex Court in the judgment rendered in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others (supra) has observed at Para 24 which reads hereunder as :- "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination." In the case of Marripati Nagaraja and Others Vs. Government of Andhra Pradesh and Others (supra) the Hon''ble Apex Court has held at para 19 which reads hereunder as :- "19. ... ... .... Appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process." In the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Others (supra) the Hon''ble Apex Court has held which reads hereunder as :- "28. Besides, in K.H.Sirej v. High Court of Kerala in SCC paras 72 and 74 it was held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel." In view of the aforesaid settled position, this Court is answering the issue by holding that since the petitioners have participated in the second counseling, cease their right to question the result of the second counseling. 21. The fourth issue is about the admission as also pertaining to causing any prejudice to the petitioners. 21. The fourth issue is about the admission as also pertaining to causing any prejudice to the petitioners. The admitted position herein is that the circular has been issued by the State of Jharkhand on 08.03.2019 taking a policy decision to fill up the seats in the different engineering colleges of the State of Jharkhand in the manner as are there in the Madhya Pradesh, Haryana, Uttarakhand, Nagaland and Orissa depending upon the merit position of one or the other students on the basis of JEE Main Examination-2019 result and in course of first counseling although the said circular was followed, but due to technical snag, if any error has crept up and in order to rectify the error, if decision has been taken for cancellation of the part counseling inviting fresh application from the candidates and in terms thereof, the candidates have appeared and admitted on the basis of their merit position in the JEE Main Examination-2019, it cannot be said to suffer from any infirmity and no prejudice will be said to have caused to the petitioners, rather, it will be said to be in consonance with the policy decision of the State Government as under the circular dated 08.03.2019. The stand is being taken by the petitioners that there is no fault on their part, rather, if any technical snag has developed, why the petitioners will suffer. The question herein is not of the suffering of the petitioners on account of no laches on their part, rather, the issue which is to be seen by the Court of law is the observance of the policy decision and whether the same is done within the framework of Article 14 and 16 of the Constitution of India. 22. This Court, after gathering from the detailed arguments and going through the various documents as has been brought on record, has found therefrom that due to technical snag the decision taken by the Board with respect to 172 candidates has been found to suffer from error which led the Board to cancel their selection by giving an opportunity to them also to participate in the second counseling before making a fresh application as also inviting fresh applications from the candidates. In pursuance to the aforesaid decision, the fresh candidates have participated in online counseling along with the petitioners and on the basis of their respective merit position based upon JEE Main Examination-2019, the result has been prepared afresh in which the petitioners have been shown to be below on the basis of their merit position in the JEE Main Examination2019. 23. Mr. Rajiv Sinha, learned counsel appearing for the petitioners has submitted by bringing on record the documents referring therein the status of the petitioners which is based upon the first counseling while the others are on the basis of second counseling but that is the consequence as because the candidature of the petitioners has been considered on the basis of their first online application, therefore, their status on that basis has been reflected in the said list while the other candidates who have participated in the second counseling, their status has been reflected by way of their appearance through the second counseling but after cancellation of the outcome of the first counseling, all the candidates have been taken up together for their assessment on merit based upon the JEE Main Examination-2019 and, therefore, this Court is of the view that this case is not coming under any arbitrariness or in the teeth of Article 16 of the Constitution of India. 24. This Court is also to refer herein that the respective merit position of the petitioner vis- -vis the other candidates who have been selected and given the seats, have not been disputed by the petitioners meaning thereby, the petitioners are also agreeing their position which is below the candidates who have been allocated the Branch on the basis of the merit position treating them above the petitioners on the basis of the State merit list. 25. In that view of the matter, this Court is of the view that so far as the merit is concerned, the petitioners have failed to make out a case for passing positive direction. Accordingly, the writ petitions fail and the same are dismissed. 26. Mr. Rajiv Sinha, learned counsel appearing for the petitioner, while arguing the case for the petitioners has drawn the attention of this Court that as yet 115 seats are vacant in B.I.T., Sindri, therefore, the case of the petitioners may be directed to be considered. Accordingly, the writ petitions fail and the same are dismissed. 26. Mr. Rajiv Sinha, learned counsel appearing for the petitioner, while arguing the case for the petitioners has drawn the attention of this Court that as yet 115 seats are vacant in B.I.T., Sindri, therefore, the case of the petitioners may be directed to be considered. Today affidavits have been filed in this regard in Court which have been accepted and taken on record. Mr. A.K.Mehta, learned counsel for the respondent Board, after accepting the copy of the affidavits, has submitted that so far as the contention raised in the affidavits about filling up of 115 seats which are vacant in B.I.T., Sindri is concerned, the same may be directed to be considered by the competent authority of the Board in accordance with law. In view of said submission, it is left open to the competent authority of the respondent Board to take decision with regard to the filling of vacant seats in accordance with law. 29. These writ petitions stand disposed of.