Full Text
HIGH COURT OF DELHI
Date of Decision: 13.12.2022
MAHARAJA AGRASEN INSTITUTE OF TECHNOLOGY (MAIT) ..... Petitioner
Through: Mr. Shashank Deo Sudhi, Advocate.
Through: Mr. Anuj Aggarwal, ASC with Ms. Ayushi Bansal, Mr. Sanyam Suri & Ms. Arshya Singh, Advocates for R-1&4.
Ms.Anita Sahani, Advocate for R-2/GGSIPU.
JUDGMENT
1. Allowed, subject to all just exceptions.
2. The application stands disposed of. W.P.(C) 16871/2022 & CM APPL. 53436/2022(for stay)
3. Issue notice.
4. Ms. Ayushi Bansal, learned counsel appearing for respondent nos. 1 (Govt. of NCT of Delhi) and 4 (Directorate of Higher Education) and Ms. Anita Sahani, learned counsel appearing for respondent no.2 (Guru Gobind Singh Indraprastha University) respectively, accept notice.
5. Counter affidavits be filed within four weeks from today.
6. Rejoinder thereto, if any, be filed within two weeks thereafter.
7. Notice be issued to respondent no.3 (All India Council for Technical Education) through all modes.
8. The petitioner is an institute affiliated to the respondent no.2/Guru Gobind Singh Indraprastha University and is aggrieved by the notification F.No.IPU-7/Online Counselling/2022/3118 dated 06.12.2022 whereby process of commencement for Centralized Online Registration for Special Round of Offline Counseling for Admission to various programmes for the academic session 2022-23 to be conducted in the University Campus, was notified.
9. The learned counsel for the petitioner invites the attention of the Court to Clause 7 of the aforesaid notification to contend that the respondent/university has adopted a wrong procedure of counseling by sticking to cut-off ranks of the earlier rounds of Online Counseling of the respective colleges. The said Clause 7 of the notification reads as under:-
10. He further submits that such an action of the respondent/university in not allowing all the students to participate in the Special Round of Offline Counseling despite the petitioner/college having numerous vacant seats in various streams/branches of different programmes, is arbitrary and violative of the Article 19(1)(g) of the Constitution of India.
11. The learned counsel for the petitioner relies upon the decision of the Supreme Court in Index Medical College, Hospital and Research Centre Vs. The State of Madhya Pradesh & Ors., 2021(4) Scale 184, to contend that it is the right of an institution under Article 19(1)(g) of the Constitution of India to admit students and in case the seats under various programmes remain vacant it results into huge financial loss to the educational institutions like petitioner. Reference was made to paragraphs 5 and 25 of the said judgment which read as under:- “5.Rules were framed by the State Government in exercise of the powers conferred under Section 12 of the Act. Rule 10 prescribes the process of admission to be on the basis of allotment of students who participated in the first round of counselling. The procedure for admission in second round of counselling is dealt with in Rule 11 and that of in last round (mop-up round) is found in Rule 12. The allotment of admission after completion of final round of counselling is governed by Rule 13. Amendments to the Rules were notified on 19.06.2019. The relevant amendment which is subject matter of challenge in these Appeals is Rule 12(8)(a) which reads as follows:— “(8)(a) The vacant seats as a result of allotted candidates from MOP-UP round not taking admission or candidates resigning from admitted seat shall not be included in the college level counseling (CLC) being conducted after MOP-UP round”.
25. the right to admit students which is a part of the management's right to occupation under Article 19(1)(g) of the Constitution of India stands defeated by Rule 12(8)(a) as it prevents them from filling up all the seats in medical courses. Upgradation and selection of subject of study is pertinent only to postgraduate medical course. In so far as undergraduate medical course is concerned, the upgradation is restricted only to a better college. Not filling up all the medical seats is not a solution to the problem. Moreover, seats being kept vacant results in huge financial loss to the management of the educational institutions apart from being a national waste of resources. Interest of the general public is not subserved by seats being kept vacant. On the other hand, seats in recognised medical colleges not being filled up is detrimental to public interest. We are constrained to observe that the policy of not permitting the managements from filling up all the seats does not have any nexus with the object sought to be achieved by Rule 12(8)(a). The classification of seats remaining vacant due to non-joining may be based on intelligible differentia but it does not have any rational connection with the object sought to be achieved by Rule 12(8)(a). Applying the test of proportionality, we are of the opinion that the restriction imposed by the Rule is unreasonable. Ergo, Rule 12(8)(a) is violative of Articles 14 and 19(1)(g) of the Constitution.”
12. Ms. Anita Sahani, the learned counsel for the respondent/University submits that as is evident from Clause 7 of the notification, the conduct of Special Offline Counselling is to facilitate only those candidates who for certain reasons have not been able to get admission in the Online Counselling process held so far. She further submits that the condition in the latter part of Clause 7 has been inserted to ensure that the admissions are made by the respective colleges purely on merit basis.
13. Ms. Sahani has also referred to order dated 13.10.2021 passed by a Coordinate Bench of this Court in WP(C) 449/2021 in which challenge was made to a similar Clause of the notification dated 07.01.2021 issued by the respondent no.2/university. She draws the attention of the Court to paragraphs 4, 5 and 6 of the said order as well as Clause 4 of the notification dated 07.01.2021, which read as under:-
14. Evidently, a Coordinate Bench of this Court took a prima facie view that no fault can be found in the criterion laid down by the university which ensures that admissions are done strictly in accordance with merit and accordingly this Court refused to grant any interim relief to the petitioners therein.
15. Ms. Sahani also places reliance on the decision of the Division Bench of this Court in Association of Self Financing Institutions & Ors. Vs. Guru Govind Singh Indraprastha Universtiy & Ors., 2014 SCC OnLine Del 2971, to contend that the counseling mechanism does not restrict the petitioner’s freedom to run or operate its educational institution. She further submits that as the number of students is less than the number of seats available cumulatively in various colleges, the students are provided an opportunity to decide between the colleges and in this process certain seats are bound to remain empty in some of the colleges. The relevant paragraphs from the judgment read as under:-
55. The present petitioner organization represents various colleges affiliated to the GGSIP University. Each college operates with different faculty, staff and infrastructure, and thus each has acquired a standing for the quality of education provided. As in any other occupation, those who approach such institutions conduct inquiries into the institution's past-record, quality of education provided and other factors to determine its overall standing. Through the counselling process, students are given the opportunity to assess the opportunities and decide on a particular college. The colleges, too, are able to set minimum scores within the CET for admission, and thus, „compete‟ for students. As the number of students is less than the number of seats available cumulatively in the various colleges, students are provided an opportunity to decide between colleges and in this process certain colleges are naturally left with empty seats. Importantly, in this counselling process, students who have been allotted a college in the first counselling are nonetheless permitted to sit for the second counselling in order to change their preference, based on the other students' choices in the first counselling. This allows some students a chance to study at a college higher up in their preference list, or even pick a different course that was unavailable as per their earlier rank. The petitioner argues that students should not be given this second chance, as it means that students migrate to other colleges, leaving seats empty. Further, as per the GGSIP Admissions Brochure, the second counselling begins on 1st August. The petitioner argues that this should be pre-poned to 1st July, so that the academic session may begin by 1st August. It is argued that this is necessary because the current schedule allows for students who have been allocated seats in the first counselling to leave and study in other universities, where the academic session starts, and counselling schedule ends, earlier. All these measures, the petitioner argues, violate Article 19(1)(g) as they, in essence, render the colleges' freedom to run such institutions hollow by making the costs of running and maintaining the college prohibitive.
56. In considering this argument, the Court must be conscious of what Article 19(l)(g) protects. Clearly, clause (g) protects the freedom of occupation, i.e. the freedom to establish and operate educational institutions. The question is whether this also includes the right to achieve a particular object - to operate profitably, or to have sufficient enrolment of students. The counselling mechanism in place may factually mean that some seats run vacant. The legal question before the Court is whether this counselling mechanism restricts the freedom to run or operate the educational institution itself. In other words, does the freedom to run a college imply that the college must have a full batch of students (to the detriment of other colleges) and thus, run successfully? It does not. The freedom to practice an occupation under Article 19 does not guarantee the right to succeed in that occupation. One may not fare well, but that does not give rise to an Article 19 action. If - due to the standard of services provided by others - a particular college is unable to attract students, such that students choose to go elsewhere (even in a second shift), the conclusion is not that the right of the college to run and establish an educational institution itself is restricted by the State. The college may still operate, if it is willing. This point was put across by the Supreme Court in All India Bank Employees' Association v. National Industrial Tribunal, [1962] 2 SCR 269: “It is one thing to interpret each of the freedoms guaranteed by the several Articles in Part III in a fair and liberal sense, it is quite another to read each guaranteed right as involving or including concomitant rights necessary to achieve the object which might be supposed to under lie the grant of each of those rights, for that construction would, by a series of ever expanding concentric circles in the shape of rights concomitant to concomitant rights and so on, lead to an almost grotesque result.”
16. If Clause 7 of the impugned notification is examined in the light of the judgment of Division Bench of this Court in Association of Self Financing Institutions (supra), it becomes luminously clear that the said clause does not put fetters on the right of the petitioner to establish and run its institute, therefore, prima facie there does not appear to be any violation of Article 19(1)(g) of the Constitution of India.
17. I have also gone through the judgment of the Supreme Court in Index Medical College, Hospital and Research Centre (supra) relied upon by the counsel for the petitioner. In that case, challenge was laid to the amended Rule 12(8)(a) of Madhya Pradesh Chikitsa Shiksha Pravesh Niyam, 2018 which mandated that the seats of Mop-up round falling vacant on account of students not taking admission shall not be included in the college level counseling being conducted after Mop-up round. It was in this factual background that the Supreme Court observed that medical seats shall not remain vacant and the interest of the general public is not sub-served by seats being kept vacant and accordingly, the impugned sub-Rule was quashed. In the present case the impugned notification does not bar the inclusion of vacant seats in the Special Round of Offline Counseling. The clause only mandates that the allotment of seats in the said counseling will be purely on merit and in accordance with the cut-off ranks of that particular college determined through online counseling. I find that the decision of the Supreme Court was rendered in a completely different set of facts. The said decision, therefore, does not advance the case of the petitioner.
18. I am prima facie of the view that Clause 7 of the impugned notification dated 06.12.2022 ensures that the admissions in the Special Round of Offline Counseling are made strictly in accordance with merit and there is no flaw in the criterion laid down in the said clause.
19. In view of the above, no prima facie case is made out by the petitioner for granting any interim relief.
20. List on 6th February, 2023.
VIKAS MAHAJAN, J DECEMBER 13, 2022