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2019 DIGILAW 2279 (DEL)

Sanchi Dilavari v. University of Delhi

2019-11-05

RAJIV SHAKDHER

body2019
JUDGMENT : Rajiv Shakdher, J. Preface:- 1. The petitioner's grievance stems from the fact that while seeking admission in the B.A. Honours (Business Economics) programme qua academic session 2019-2020 the marks obtained by her in the best-four subjects in grade-XII were scaled down by 2.5% as it included Multimedia and Web Technology as one of the subjects. Background:- 2. The petitioner had made her choice with regard to the subjects which she wanted to pursue in grade-XI and grade-XII in 2016-2017, when she passed her grade-X examination. Thus, the subjects the petitioner chose and pursued in grade-XI and grade-XII, which are detailed out hereafter, were in line, with Circular No. 26 dated 23.10.2003 (hereafter referred to as "2003 circular") issued by respondent No. 2 i.e. Central Board of Secondary Education (in short "CBSE"): (i) English Core; (ii) Economics; (iii) Business Studies; (iv) Accountancy; (v) Multimedia and Web Technology; (vi) Mathematics; (vii) Work Experience; (viii) Physical and Health Education and (ix) General Studies. 2.1 The petitioner sat for the grade-XII examination conducted by the CBSE in May 2019. The petitioner secured 92% in grade-XII examination which was calculated based on the marks obtained in the best-four subjects i.e. English, Business Studies, Economics and Multimedia and Web Technology. 3. On 03.06.2019 the petitioner made an online application for gaining admission, inter alia, in B.A. Honours (Business Economics) programme in various colleges run under the aegis of the University of Delhi (hereafter referred to as "the University") including Shyama Prasad Mukherjee College for Women, Shyam Lal College (Morning) and Dr. Bhim Rao Ambedkar College, amongst others. 4. The petitioner claims that she was unable to get admission in a college of her choice in particular, in the morning session as her marks were scaled down by 2.5% on account of Multimedia and Web Technology being included by her in the best-four subjects chosen by her while arriving at the percentage of marks secured by her in grade-XII exam. 5. Given this position, the petitioner was left with no option but to take admission in Shyam Lal College, albeit, in the evening session. 6. Being aggrieved, the petitioner approached this Court by way of the instant writ petition. 7. 5. Given this position, the petitioner was left with no option but to take admission in Shyam Lal College, albeit, in the evening session. 6. Being aggrieved, the petitioner approached this Court by way of the instant writ petition. 7. The writ petition came up for hearing for the first time in this Court on 28.8.2019 when, while issuing notice to the respondents, an interim order was passed directing the University to ensure that one seat in the morning session is retained in the B.A. Honours (Economics) programme either in Dr. Bhim Rao Ambedkar College or Satyawati College. This order was passed after the grievance of the petitioner, as articulated by her counsel, was noted and upon hearing Mr. Rupal, the counsel for the University, and Mr. Bansal, who appeared for the CBSE. 8. On the next returnable date i.e. 20.09.2019, Mr. Rupal was once again directed to ascertain as to whether or not a seat was available in the B.A. Honours (Economics) programme in either Dr. Bhim Rao Ambedkar College or Satyawati College. 8.1 The matter was thereafter taken up for hearing on 27.09.2019 when Mr. Prang Newmai who appeared on behalf of the University furnished the information that one seat was available in the EWS category in the morning session in Satyawati College. 8.2 Mr. Newmai upon being queried as to whether the petitioner who belonged to the general category could be given a seat in the EWS category after the cut-off date i.e. 31.08.2019 had been crossed was unable to give a response. 8.3 Given this situation, and the backdrop in which order dated 28.08.2019 had been passed, as also the fact that the University had not filed a counter-affidavit, a direction was issued that the petitioner would be provisionally admitted in Satyawati College, albeit, in the EWS category. The direction issued for provisional admission was, however, made subject to the outcome in the writ petition. Furthermore, Satyawati College was arrayed as a respondent in the writ petition and, accordingly, notice was also issued to the newly arrayed respondent. 9. The matter was listed for further proceeding on 13.11.2019. In the interregnum, the petitioner filed an interlocutory application i.e. C.M. No. 46208/2019 which was listed in Court on 21.10.2019. Furthermore, Satyawati College was arrayed as a respondent in the writ petition and, accordingly, notice was also issued to the newly arrayed respondent. 9. The matter was listed for further proceeding on 13.11.2019. In the interregnum, the petitioner filed an interlocutory application i.e. C.M. No. 46208/2019 which was listed in Court on 21.10.2019. 9.1 In this application the grievance articulated on behalf of the petitioner was that she was not being allowed to attend classes in Satyawati College despite the order of the Court. At the request of counsel for the petitioner, the matter was listed for further proceeding on 22.10.2019. 9.2 On 22.10.2019 Mr. Rupal informed the Court that the order of this Court had been communicated by the Dean of the University to the Principal, Satyawati College. Since the petitioner's counsel had not taken requisite steps for effecting service on Satyawati College and had failed to file an amended memo of parties, a direction was issued that necessary steps would be taken by 23.10.2019. 9.3 Furthermore, once again, the Principal, Satyawati College was directed to comply with the order passed on 27.09.2019. The petitioner, as well as Mr. Rupal, was directed to communicate the order passed on 27.09.2019 to the Principal, Satyawati College. 10. The matter was listed for further proceeding on 24.10.2019. Since the order passed by the Court had not been complied with, the Registrar General of this Court was directed to communicate the order to the Principal, Sayawati College and a direction was issued to seek the presence of the Principal, Satyawati College at 3 P.M. on the same date. 10.1 The matter was, thus, taken up for hearing on 24.10.2019 at 03:00 P.M. when the Principal, Satyawati College i.e. Dr. Manjula Das and Mr. Virender Kumar, Admission-in- Charge, Satyawati College were present. Since they informed the Court that the petitioner would be granted provisional admission in the morning session at Satyawai College, as indicated in the earlier order of the Court, at the request of counsel for the parties, the date of the hearing of the matter was advanced to 01.11.2019. 10.2 Consequently, the date already fixed in the mater i.e. 13.11.2019 was cancelled. Satyawati College was given liberty to file a counter-affidavit in the matter on or before 30.10.2019. 10.2 Consequently, the date already fixed in the mater i.e. 13.11.2019 was cancelled. Satyawati College was given liberty to file a counter-affidavit in the matter on or before 30.10.2019. It was, however, made clear that the direction issued in favour of the petitioner for grant of provisional admission was protem in nature and therefore, would be subject to the outcome in the writ petition. The petitioner was also given liberty to file a rejoinder in the matter before the next date of hearing i.e. 01.11.2019. 10.3 The record shows while the University and the CBSE have filed a counter-affidavit in the matter, no counter-affidavit has been filed by Satyawati College. Submissions of Counsel:- 11. The arguments in the matter were advanced by counsel for the parties in line with their respective pleadings. 12. Thus, while Ms. Rajeshwari, Advocate who appeared for the petitioner argued that the scaling down of the petitioner's mark by 2.5% was unsustainable in law and contrary to the provisions of the 2003 circular issued by the CBSE which granted equal weightage to all three courses related to computer i.e. Computer Science, Informatics Practices, and Multimedia and Web technology; Mr. Rupal contended to the contrary. 13. It was Mr. Rupal's submission that when the University had issued the information bulletin for the academic session 2019-2020 in the first instance, on 29.05.2019, there was no provision for scaling down of marks on account of inclusion of Multimedia and Web Technology in the best-four subjects by a candidate. The inclusion of such a provision, according to Mr. Rupal, was brought about on account of directions contained in the judgment rendered by a Division Bench of this Court, dated 14.06.2019, passed in W.P. (C) No. 6571/2019, titled Charanpal Singh Bagri vs. University of Delhi. 13.1 The argument was that because of the directions contained in Charanpal Singh Bagri's case, the University had to grant admissions in the academic session 2019-2020 based on the eligibility criteria provided for admissions to the undergraduate courses in the academic session 2018-2019. 13.2 In other words, the inclusion of the provision requiring scaling down of marks by 2.5% if the best-four subjects included Multimedia and Web Technology, occurred on account of the judgment rendered in Charanpal Singh Bagri's case. 13.3 Furthermore, Mr. 13.2 In other words, the inclusion of the provision requiring scaling down of marks by 2.5% if the best-four subjects included Multimedia and Web Technology, occurred on account of the judgment rendered in Charanpal Singh Bagri's case. 13.3 Furthermore, Mr. Rupal submitted that the grievance raised in the instant writ petition was the subject matter of the judgment dated 09.07.2019, rendered by a Single Judge of this Court, in W.P. (C) No. 6896/2019, titled Muskan Aggarwal vs. University of Delhi, wherein the concerned petitioner was not granted any relief. 13.4 Mr. Rupal also contended that since the seat available in the Satyawati College (Morning) was a seat that fell in the EWS category, the petitioner who belonged to the General category could not be granted admission as a regular student against the said seat. 13.5 In support of his submission. Mr. Rupal relied upon the judgment dated 14.10.2014, rendered by the Division Bench of this Court, passed in LPA No. 590/2014, titled Pankaj Kumar Tiwari and Others vs. Vice-Chancellor, University of Delhi and Another. 14. On the other hand, Mr. Bansal submitted that the 2003 circular of the CBSE made it clear that all computer subjects which included Computer Science, Informatics Practices, and Multimedia and Web technology carried equal weightage and that they were at par with other subjects such as Physics, Chemistry, Mathematics, Accountancy, Geography etcetera for all other purposes. Mr. Bansal also submitted that the change in the information bulletin of the University whereby the provision for scaling down of a candidate's marks by 2.5% if included in best-four subjects, Multimedia and Web technology, was not communicated to the CBSE. Analysis and Reasons:- 15. Given the arguments advanced before me by counsel for the parties and the state of the pleadings, the issues which would arise for consideration would be the following: (i) First, what was the true ratio of the judgments rendered in Charanpal Singh Bagri's case and Muskaan Aggarwal's case? In other words, is the issue which is raised in the instant writ petition covered by these judgments? (ii) Whether the University could have incorporated the provision for scaling down a candidate's marks by 2.5% if it included the subject Multimedia and Web technology in best-four subjects without informing the CBSE? 16. In other words, is the issue which is raised in the instant writ petition covered by these judgments? (ii) Whether the University could have incorporated the provision for scaling down a candidate's marks by 2.5% if it included the subject Multimedia and Web technology in best-four subjects without informing the CBSE? 16. Insofar as the judgment in Charanpal Singh Bagri's case is concerned, it dealt with the grievance concerning the alteration of eligibility criteria for admission to certain courses. 16.1 The judgment notices that insofar as B.A. Honours (Economics) and B.Com. (Honours) programmes were concerned, mathematics which was only a qualifying paper in the information bulletin issued for academic session 2018-2019, was required to be mandatorily included in the best-four subjects in the academic session 2019-2020. The grievance was that the petitioners who had already sat for the grade-XII examination in 2018-19 could not have adapted to the altered eligibility criteria. It is in this context; the Division Bench passed the following directions in paragraph 18 of the judgment: "18. In the circumstances, the W.P. (C) 6751/2019, W.P. (C) 6770/2019 and W.P. (C) 6774/2019 are disposed of with directions to the University of Delhi and the University Grants Commission to allow the students to apply for the under-graduate courses for the year 2019-20 to the University of Delhi on the basis of the eligibility criteria for admissions to the under-graduate courses for the year 2018-19." 16.2 In Muskaan Aggarwal's case, though the grievance raised was concerning the scaling down of 2.5% marks in case of best-four subjects which included Multimedia and Web Technology, that issue was not decided by the learned Single Judge. This is evident upon the perusal of the following observations made in the judgment: "In these circumstances, it is apparent that if there is any modification of the said terms of the directions dated 14.06.2019 in the aforesaid three writ petitions sought by the petitioner in any manner whatsoever, the petitioner would need to seek separate redressal. It is apparent that the respondents can do nothing but comply with the directions in the said judgment dated 14.06.2019. In the circumstances, submissions made by the petitioner, Ms. Muskan Aggarwal as also the prayer made by Ms. Tanu Priya, the petitioner are declined." 16.3 Concededly, an appeal has been preferred with the Division Bench against the judgment dated 09.07.2019 rendered by the Single Judge in Muskaan Aggarwal's case. In the circumstances, submissions made by the petitioner, Ms. Muskan Aggarwal as also the prayer made by Ms. Tanu Priya, the petitioner are declined." 16.3 Concededly, an appeal has been preferred with the Division Bench against the judgment dated 09.07.2019 rendered by the Single Judge in Muskaan Aggarwal's case. The appeal is numbered LPA 501/2019. The appeal has been admitted and is listed for final hearing in the category of "After-notice Miscellaneous Matters" before the Division Bench on 12.12.2019. 16.4 However, given the urgency of the matter, the instant writ petition has been pressed. 17. Therefore, to my mind, as indicated above, neither the judgment in Charanpal Singh Bagri's case nor the judgment of the learned Single Judge in Muskaan Aggarwal's case has dealt with the issue which arises for consideration in the instant writ petition. The broad principle which has been formulated in the Division Bench judgment was that change in the eligibility criteria for admission of students to colleges cannot be done mid-stream. Therefore, if this principle is applied, it would only help the cause of the petitioner. 17.1 In the instant case, what is material is that the petitioner had chosen the subjects that she wished to pursue in grade-XI and grade-XII in 2016-17 after she passed her grade-X exam. This choice was made in line with the representation made by the CBSE in its circular that all computer subjects had equal weightage. More specifically, the 2003 circular portrayed to the students/candidates that irrespective of which of the three courses related to computer they were to choose, all of them would have the same weightage and that they would be at par with other subjects such as Physics, Chemistry, Maths, Accountancy, Geography, etc. for all other purposes. Therefore, a mid-stream change could not have been brought about by the University without consulting the CBSE. 17.2 Mr. Rupal's argument that the scaling down provision obtained even in the information bulletin issued for the academic session 2018-19 would not support, in any way, the case of the University as the petitioner could not have altered her choices of subjects after she had indicated her options in 2016-17. 18. The other argument advanced by Mr. Rupal that the petitioner cannot be admitted to the EWS category against a seat reserved for the EWS category would have had merit if the students in the EWS category were available for the admission. 18. The other argument advanced by Mr. Rupal that the petitioner cannot be admitted to the EWS category against a seat reserved for the EWS category would have had merit if the students in the EWS category were available for the admission. The EWS category seat is lying vacant. 18.1 It is only when Mr. Rupal was asked to inform the Court as to whether any seat was available in the morning session was this information supplied to the Court. 19. Insofar as the Division Bench judgment in Pankaj Kumar Tiwari and Others case is concerned, the same has no bearing on the point in issue. The point in issue is: as to whether an EWS seat could be accorded to a General category candidate. 19.1 Pankaj Kumar Tiwari and Others, was a case wherein the petitioners alleged that there were irregularities in the admission process and therefore directions were sought for the constitution of an independent panel under the aegis of the Court for investigation of the irregularities and, furthermore, as a consequential relief, cancellation of admission of candidates who are found ineligible. No such issue arises in the instant case. Hence, the judgment is distinguishable. 19.2 Ordinarily the reserved seat should go to a candidate who falls in such a category. If, however, no candidate is available in the reserved category, the seat ought not to be wasted only because the person seeking admission belongs to the General category. 19.3 This following principle is articulated by the Supreme Court in the matter of P.V. Indiresan vs. Union of India and Others, (2011) 8 SCC 441 : "54. We, therefore, dispose of this appeal, affirming the decision dated 7-9-2010, Apurva vs. Union of India, W.P. (C) No. 4857 of 2010 order dated 7-9-2010 (Del) of the learned Single Judge of the High Court, subject to the clarifications/observations above, and subject to the following conditions: xxx xxx xxx (ii) If in any Central educational institution, the OBC reservation seats remain vacant, such institutions shall fill the said seats with OBC students. Only if OBC candidates possessing the minimum eligibility/qualifying marks are not available in the OBC merit list, the OBC seats shall be converted into general category seats." (Emphasis is mine) 19.4 The other judgment, which takes a somewhat similar view is the judgment of the Patna High Court, dated 02.05.1996, passed in Civil Writ Jurisdiction Case No. 1591/1996, titled Miss Asha Kumari vs. Rajendra Agricultural University and Others, (1997) AIR Patna 102. Conclusion:- 20. Thus, for the foregoing reasons, I am persuaded to hold that the denial of admission to the petitioner by scaling down her marks by 2.5% because she included Multimedia and Web technology as one of the subjects in the best-four subjects chosen by her was not fair and, in that sense, violative of Article 14; which is the unspoken gravamen of the petitioner's case. 21. The fact that Multimedia and Web Technology has been singled out for scaling down of marks whereas no such provision is made qua other computer subjects (i.e. Computer Science and Informatics Practices) makes the unfairness even more egregious. 22. In these circumstances, the writ petition is allowed. The petitioner, who already stands admitted to Satyawati College (Morning), albeit, provisionally, will continue in the said college as a regular student. The petitioner will fulfill necessary formalities in that behalf. 22.1 Resultantly, CM APPL. 40537/2019 and 46208/2019 shall stand closed.