Omansh Thakur v. Union of India

16. He further states that once the guidelines issued by the Dean stipulated that the candidates obtaining less than 75% marks are not eligible for grant of admission, the petitioner immediately approached this court and filed the instant writ petition challenging the basis of the guidelines, and therefore, non acceptance of the seat should not be the criteria for denying the relief to the petitioner.

17. I have heard learned counsel appearing on behalf of the parties and perused the record.

18. For the sake of clarity, it would be appropriate to reproduce Clauses 41 and 42 of the Business Rules in their entirety. The same are reproduced as under:

41. It is the candidate‟s responsibility to login to the JoSAA portal and check if a seat is allocated in a given round of seat allocation. Schedule of JoSAA activities is available in Annexure 3 of this document. If the candidate is allocated a seat, steps of “Online Reporting” mentioned in point 42 MUST be completed, in order to accept the allocated seat before the last date/time specified for the given round, i.e. the round in which seat is allocated. Please refer to Annexure 3 for the timeline. The allocated seat will then be either confirmed / cancelled on completion of document verification. Failing to complete ALL the steps of "Online Reporting", within the specified wise timeline of the same round of JoSAA [see Annexure 3 for the round-wise timelines], will lead to cancellation of allocated seat and the candidate will be out of further JoSAA rounds, if any.

42. A candidate who has been allocated a seat needs to download the “Initial Seat Allotment Intimation Slip” which has information regarding the Seat Allotment and steps to be followed for seat confirmation by the candidate. Step 1: Accept the Seat The candidate needs to accept the seat allocated and opt for any one of the options „Freeze‟, „Slide‟ or „Float‟ for the choice of academic program for subsequent round(s), if any, of joint seat allocation (see section XX). Step 2: Upload the documents The candidate MUST upload all the required documents (as per Annexure 3) on the JoSAA portal. Step 3: Pay the Seat Acceptance Fee The candidate MUST pay the seat acceptance fee for continuing with the JoSAA process till the end to avail the seat in HTs or NIT+System. The documents uploaded by the candidate cannot be verified unless the candidate pays the seat acceptance fee. Admission fee varies across the Institutes/category of candidates and is different from seat acceptance fee. At the time of seat acceptance, candidates have to remit the seat acceptance fee only in the round in which the seat is allotted for the first time. Non-payment of the seat acceptance fee is one of the ways to reject the offered / allocated seat and will be treated as a rejection. In such a situation, the candidate will no longer be able to participate in the seat allocation process in the subsequent rounds. [See points 44 and 45 below] Seat Acceptance Fee Rs. 20,000 for candidates with the category tag SC, ST, GENPwD, GEN-EWS-PwD, OBC-NCL-PwD, SC-PwD or STPwD and Rs. 40,000 for all other candidates (the fee includes Rs. 4,000 JoSAA processing charges). The seat acceptance fee excluding JoSAA processing charges of Rs. 4,000 will be adjusted against the admission fee. Candidates should remit seat acceptance fee using Debit card/UPI/Credit card/Net Banking/E-Challan [See Chapter XXII below]. Step 4: Respond to queries (if any) At the time of document verification, if the document verification officer raises any query, the candidate must respond in online mode (through candidate portal) within the stipulated time. Failure to respond to the query(ies) on time will lead to cancellation of the allotted seat and the candidate will no longer be able to participate in the JoSAA 2023 process. \t is the responsibility of the candidate to check the online portal at regular intervals of time and respond to queries (if any) without fail within the stipulated time. Candidates MUST complete all the above steps before their details are forwarded to the reporting authorities for verification and provisional allocation of the seat. Document verification is done ONLY for those candidates who have successfully paid the seat acceptance fee. Failure to complete all the steps of “Online Reporting” for seat acceptance will be considered as rejection of the offer and the candidate would have forfeited the eligibility for admissions to any of the institutes through JoSAA 2023 and will not be able to participate in the seat allocation process in the subsequent rounds, if any.

19. It is thus seen that so far as the admission process is concerned, once the candidate is allocated a seat, he needs to download the initial Seat Allotment Intimation Slip. The said Slip contains the information regarding the seat allotment and steps to be followed for seat confirmation by the candidate.

20. The first step mandates the candidate to accept the seat allotted and opt for any one of the options ‘Freeze’, ‘Slide’ or ‘Float’ for the choice of academic program for subsequent round(s), if any. In the instant case, the petitioner has admittedly not taken any of the steps stipulated in Clause 42 of the Business Rules.

21. It is thus noted that for a candidate who does not opt for the seat, the allocation letter stands cancelled in view of the stipulation made in Clause 42 of the aforesaid Rules, which clearly states that non-payment of the seat acceptance fee is one of the ways to reject the offered/ allocated seat and will be treated as a rejection.

22. In the instant case, the seat offered to the petitioner stands cancelled mainly for the reason that the petitioner has not accepted the seat allocated to him and has not paid the requisite fee within the stipulated time period.

23. A categorical stand has been taken by the respondent no.4-CSAB in this respect in paragraph no.16 of their counter-affidavit. The same is reproduced as under:

24. It is evident that the admission to the petitioner has been denied mainly on the ground that the petitioner has not taken requisite steps as were required under the applicable instructions. Therefore, in the absence of any challenge in that respect or infirmity in the action so taken, no relief can be granted to the petitioner.

25. Learned counsel appearing on behalf of the petitioner has argued that the petitioner, within the permissible time limit i.e. five days, had contacted the concerned Dean to inquire about the eligibility criteria as according to him, there was a sufficient confusion as to whether the petitioner would eventually be entitled for admission against the said seat or not. He, therefore, states that even if the petitioner had accepted or paid the requisite fee, the petitioner could have been denied the admission on the ground of the Office Memorandum of the GoI dated 17.03.2023.

26. To examine the aforesaid contention, it is to be noted that Clause 14.[1] of the Information Bulletin which was issued in December, 2022 itself stipulates that the candidates must secure at least 75% marks in Class XII examination conducted by the respective Boards. For the sake of clarity, the pertinent extract of Clause 14.[1] of the Information Bulletin is reproduced as under: “14.[1] Eligibility for Admission to NITs, IIITs, and CFTIs participating through Central Seat Allocation Board (CSAB): Admission to B.E./ B.Tech/ B.Arch / B.Planning Courses in NITs, IIITs, CFTIs participating through Central Seat Allocation Board will be based on All India Rank subject to the condition that the candidate should have secured at least 75% marks in the Class 12 examination conducted by the respective Boards. For SC/ST candidates the qualifying marks would be 65% in the Class 12/qualifying examination. The candidate is also required to pass in each of the subjects of Class 12/qualifying examination. The Admission to NITs, IIITs, and CFTIs will be based on the announced qualifying Percentile by the individual Institutes. For eligibility regarding details, candidates may refer to the website https://csab.nic.in/.”

27. The concerned authority had the requisite jurisdiction to formulate the rules including the eligibility criteria mentioned in the said Information Bulletin and it does not suffer from any legal infirmity. The natural corollary would be that it could not be directed to relax to some extent the said eligibility criteria to create an exception. The High Court, while exercising its power of judicial review in the normal course, would not intermeddle with such policy decisions.

28. This court has affirmed this view in its decision dated 03.05.2023 in the case of Buddhabhushan Anand Londhe and Another v. Union of India & Ors.2. While referring to a catena of judgments by the Hon’ble Supreme Court dealing with the interference of the court in the domain of Executive and Regulatory Authority, it was held that:

29. In the case of Indian Institute of Technology, Kharagpur and Others v. Soutrik Sarangi and Other[3], while placing reliance on a decision in the case of All India Council for Teacher Education v. Surinder Kumar Dhawan[4], the Hon’ble Supreme Court was of the similar view and held that:

30. The argument that the rules of the examination were changed after the examination had begun also does not seem to be correct. It is to be noted that if the Information Bulletin in the month of December, 2022 was not having any legal support, the petitioner was required to challenge the said Information Bulletin then and there only. On the contrary, the petitioner has accepted the same and has appeared in the examination which was conducted in the month of January, 2023 and at the stage of final scrutiny, cannot be allowed to assail the stipulations/conditions mentioned in the Information Bulletin.

31. The Hon’ble Supreme Court in the case of Union of India v. S. Vinodh Kumar[5], while placing reliance on its earlier pronouncements in the cases of Munindra Kumar v. Rajiv Govil[6] and Rashmi Mishra v. M.P. Public Service Commission[7], held that:

32. It is also to be noted that the requirement of obtaining 75% marks in Class XII examination has already been examined by the Hon’ble Division Bench of the High Court of Bombay in Anubha Srivastava Sahai (supra). Paragraph nos.10 to 16 of the said decision are reproduced as under: "10. Mr. Anil Singh, the Ld. Additional Solicitor General of India would oppose the petition. He would submit that the criteria of minimum 75% marks has not been introduced for the first time in the year 2023 and the same has been in existence since the year 2017-2018. That the said criteria was prescribed even for the year 2020-2021 and 2021-2022 but by separate letters, relaxation was granted to that condition on account of Covid-19 pandemic. That petitioners cannot seek continuation of such relaxation forever. There cannot be any legitimate expectation in a hope. In support of his contentions Mr. Singh would rely upon judgments of the Apex court in Maharashtra State Board of Secondary and Higher Secondary Education and Ann v. Parisosh Bhupesh Kurmarsheth, (1984) 4 SCC 27: AIR 1984 SC 1543 and State of Bihar v. Sachindra Narayan, (2019) 3 SCC 803.

11. We have considered the submissions canvassed before us. There is no denial to the fact that the condition of securing 75% marks (65% for SC/ST) or being in top 20 percentile of the board was incorporated in JEE (Main) 2018. The same was repeated in JEE (Main) 2019. The same was also present in JEE (Main) 2020. However, on account of outbreak of Covid-19 pandemic, the Government of India, Ministry of Human Resource Development, Department of Higher Education issued letter dated 24th April 2020 directing as under: “2. For admissions in NITs and other Centrally Funded Technical Institutions, apart from qualifying the JEE (Mains), the eligibility is to secure a minimum of 75% marks in 12th Board exams or rank among the top 20 percentile in their qualifying examinations. Due to prevailing circumstances, as recommended by CSAB-2020 it has decided to relax the eligibility criterion for admission to NITs and other CETIs. JEE (Mains) 2020 qualified candidates will now only need to a passing certificate in class XII examination irrespective of the marks obtained.

3. Above relaxation is one time shall be applicable for the academic year 2020-2021 only. CSAB - 2020 shall follow all other conditions for admission to under graduate programmes of NITs and other CFTIs.

12. For JEE (Main) 2021, the criteria of minimum 75% marks (65% for SC/ST) or being within 20 percentile of the board was repeated. However, by letter dated 21st January 2021, the Government of India extended the relaxation granted in the previous year for JEE (Main) 2021 by directing them the qualified candidates needed just passing certificate in class 12th examination irrespective of the marks obtained. For JEE (Main) 2022, similar relaxation was granted by letter dated 20th June

2022.

13. The Government of India has not extended the relaxation granted in previous 3 years owing to Covid-19 pandemic for JEE (Mains) 2023. We find that the relaxation was granted on account of existence of special circumstances by the Government of India. Petitioner and Intervener do not have any vested right to claim relaxation for the current year's examination also. Merely because relaxation in criteria of minimum 75% marks (65% marks for SC/ST) in 12th Std. was granted in the previous 3 admission processes, the same would not entitle the students to continue to claim relaxation indefinitely.

14. It would not be possible for this court to sit in judgment over the decision of the National Testing Agency in prescribing the eligibility criteria for admissions to NITs, IITs and CFITs. Though National Testing Agency has filed additional affidavit dated 26th April 2023 offering justification for prescription of criteria of 75% marks, we cannot go into the merits of the said justification. In this regards, reliance placed by Mr. Singh on the judgment of the Apex Court in Paritosh Bhupesh Kurmarsheth (supra) is apposite, wherein it is held:

15. Petitioners cannot claim relaxation in eligibility criteria as a matter of right. Whether relaxation is to be extended or not is in the realm of policy decision of the government. The government may or may not relax the eligibility conditions depending on fact situation. Undeniably, the very same eligibility condition existed during the years 2017-2018, 2018-2019 and 2019-2020 and the students seeking admission during those years accepted the said condition and the entire process of admissions was completed by following the said eligibility criteria. We do not find the said eligibility condition to be arbitrary in any manner. Petitioner or intervener have also not challenged prescription of the said condition. What they seek is essentially relaxation of the said condition. The relaxation is sought under legitimate expectation that the government would extend relaxation for the current year as well. However, in absence of any vested right, no legitimate expectation would exist. In State of Bihar v. Sachindra Narayan (supra), the Apex Court has held:

16. The students, whose cause petitioner is allegedly espousing, neither have any vested right nor legitimate expectation to claim relaxation in the eligibility criteria for admissions to NITs, IITs and CFITs during the current year. Since grant of relaxation is a policy decision, the same can be taken by the Government of India in appropriate circumstances. This court would not be in a position to issue Writ of mandamus directing the government to grant relaxation in the eligibility criteria for admissions.”

33. It is also to be noted that the challenge to the said decision has not been accepted by the Hon’ble Supreme Court in SLP No. 11913/2023 and the same has been dismissed vide order dated 05.06.2023.

34. The relaxation in the eligibility criteria requiring minimum 75% marks (65% marks for SC/ST) in Class XII examination was granted during the tumultuous times of Covid-19 pandemic, however, the said relaxation was not extended for the academic year 2023-24. Sometimes, extraordinary situations call for extraordinary measures, however, such unprecedented measures may not continue to attract enforceability on the touchstone of legitimate expectations till eternity, unless expressly stated otherwise. In the case of Union of India v. Hindustan Development Corporation[8], the Hon’ble Supreme Court while striking a distinction between anticipation and legitimate expectation held that:

35. In the case of Kerala State Beverages (M&M) Corporation. Ltd. v. P.P. Suresh[9], the Hon’ble Supreme Court while taking a similar view, held that:

36. It is thus clear that while the petitioner may have an expectation to be treated in a certain manner, it does not create an indefeasible right on the part of the petitioner to claim the seat without fulfilling the prescribed eligibility criteria. The petitioner admittedly does not fulfil the requirement of obtaining 75% marks in Class XII examination, as he obtained only 63.2% marks. No mandamus, thus, can be issued to grant admission de hors the applicable scheme of admission.

37. In view of the aforesaid, this court does not find any substance in the instant petition. The instant petition is, therefore, dismissed alongwith the pending application.

PURUSHAINDRA KUMAR KAURAV, J JULY 11, 2023/nc/rg