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HIGH COURT OF DELHI
Date of Decision: 06th December, 2022 IN THE MATTER OF:
MS ANANYA SINGH MINOR THRU HER FATHER SH PRAVEEN KUMAR ..... Appellant
Through: Dr. Amit George, Mr. Praveen Kumar, Mr. Sarvan Kumar, Mr. Amol Acharya, Mr. Rayadurgam Bharat, Mr. Piyo Harold Jaimon and Mr. Arkanneil Bhaumik, Advs.
Through: Mr. Mohinder J.S. Rupal with Ms. Shaifali Jain, Advs. for University of
Delhi.
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. Aggrieved by the dismissal of Writ Petition, being W.P.(C) NO. 16167/2022, which had been filed by the Appellant herein challenging the decision of the Respondent herein of not permitting her and other similarly situated candidates to participate in spot round counseling, and terming the decision of the Respondent herein as illegal, arbitrary, discriminatory, unjust, unfair, unwarranted and violative of Article 14, 21 & 41 of the Constitution of India, the instant appeal has been filed.
2. The facts of the case reveal that the Appellant herein passed her 12th standard examination and appeared in the Common University Entrance Test (Under-Graduate)-2022 [hereinafter referred to as „the CUET (UG)- 2022‟]. It is stated that the Appellant herein registered herself under the Common Seat Allocation System-2022 (hereinafter referred to as „the CSAS-2022') of the University of Delhi (hereinafter referred to as „the University‟). It is stated that in the first round of counseling, i.e. CSAS Round 1, the Appellant herein was allocated a seat in B.A. (Hons.) History in Mata Sundri College for Women, which was her 57th preference. It is stated that the Appellant herein did not ‘freeze’ her seat and opted for 'upgradation' in the next round. It is stated that in CSAS Round II, she did not get any upgrade and therefore, the Appellant herein was entitled to upgradation in CSAS Round III. It is stated that the third round of allocation concluded on 13.11.2022 and the Appellant herein was upgraded to B.A. (Hons.) Political Science in Mata Sundri College for Women, which was her 56th preference. It is stated that the Appellant herein ‘accepted’ the upgraded seat, but did not exercise the option of ‘freeze’ which would have meant that the candidate had accepted the allocated college and such candidate would not be allowed to participate in the upgradation process again.
3. It is stated that the ‘Vacant Seat Matrix – Spot Round I’ uploaded on the University’s website indicates that the vacant seats are available in higher order of preferences in comparison to one presently allotted to the Appellant herein. It is stated that the Appellant herein was not permitted to take part in the Spot Round of counseling. Challenging the admission process and the decision of the University in not permitting the Appellant herein to participate in the Spot Round Counseling, the Appellant herein approached this Court by filing a Writ Petition, being W.P.(C) NO. 16167/2022, with the following prayers: “a) A Writ of Certiorari calling for the records of the case and peruse the same; b) A Writ of Certiorari quashing the decision /action of the Respondents in not allowing the Petitioner and similar situated candidates to participate in the spot round counselling, being illegal, arbitrary, discriminatory, unjust, unfair, unwarranted and in violation of the principles of equity, justice and good conscience and Article 14, 21, and 41 of the Constitution of India and consequently quashing para 3 of chapter 12 in the brochure of the common seat allocation system - 2022 (Annexure P-1); c) A writ of mandamus, directing the Respondents to treat the Petitioner as eligible for participation in the spot round of allocation one and other further rounds of spot counselling, if held thereafter, and make available the option for the same on the dashboard of the petitioner, for that purpose. d) A Writ of Mandamus commanding the Respondents to pay the costs of this petition to the Petitioner; e) Any other Writ order or direction, which may be deemed fit and proper on the facts and circumstances of the case and in the interest of justice.”
4. The learned Single Judge by the Order impugned herein dismissed the aforementioned Writ Petition by stating that under the scheme of admission, the candidates are permitted to participate in the CSAS-2022 to upgrade/improve their preferences, however, this upgradation is permissible only till regular CSAS-2022 counseling rounds are in progress, and after three rounds of counseling, a candidate is permitted to participate in the Spot Round Counseling only if they have not been able to secure any seat in the list of preference provided by the candidate. The learned Single Judge held that the Appellant herein availed her ‘upgrade’ option and she was successful in upgrading to a higher preference, i.e. ‘upgrade’ from her 57th preference to 56th in CSAS Round III. The learned Single Judge, therefore, held that the Appellant herein is an admitted candidate. The learned Single Judge rejected the contention of the Appellant herein that she has not opted the option of freezing her seat and, as the Appellant herein had not opted for freezing her seat, then as per Clause 9.[1] of the Information Brochure of CSAS-2022, which provides that a candidate who gets upgraded will have to accept the upgraded seat and complete the admission procedures on the upgraded allocated seats, and if the candidate does not do any activity on the upgraded seat, the seat will, by default, be considered cancelled and the candidate will be out of CSAS-2022, the Appellant herein was out of regular rounds of CSAS-2022. The ratio of the learned Single Judge is reproduced as under:
5. It is this Order which has been assailed by the Appellant in the instant appeal.
6. Heard Dr. Amit George, learned Counsel appearing for the Appellant, and Mr. Mohinder J.S. Rupal, learned Counsel appearing for the Respondent, and perused the material on record.
7. Dr. Amit George, learned Counsel appearing for the Appellant, vehemently contends that any system, which gives a go-by to merit whereby persons with lesser marks are permitted to take seats which ranks higher in priority, is violative of Article 14 of the Constitution of India. He states that merit and merit alone should be the criteria for filling up of seats and it cannot be sacrificed on the ground that the admission procedure has to be finalized. He states that the system of admission is faulty because in her order of preference, the Appellant herein had opted for a seat in B.A. (Hons.) Multi Media and Mass Communication in Indraprastha College for Women, which was her fourth preference and that seat was vacant and available in the Spot Round Counselling and the Appellant herein had to be satisfied with the allotment of her 56th preference. He submits that more than thousands of seats are lying vacant. He places reliance on Asha v. Pt. B. D. Sharma University of Health Sciences and Ors., (2012) 7 SCC 389; Delhi Development Authority and Anr. v. Joint Action Committee, Allotee of SFS Flats and Ors., (2008) 2 SCC 672 and Dr. Vagesh Ayyar v. Post Graduate Selection Committee, ILR 1996 Kar 633.
8. Dr. George contends that a policy decision is subject to judicial review if the policy decision is contrary to a larger policy. He submits that rule of merit cannot be defeated by an improper method of admission and in any circumstance, the rule of merit cannot be compromised. He, therefore, states that in the present system, a less meritorious candidate would be able to secure a more preferred seat and such a system cannot stand the test of Article 14 of the Constitution of India. He places heavy reliance on the judgment passed by the Karnataka High Court in Dr. Vagesh Ayyar (supra) which was dealing with a case of spot counselling for admission to MBBS and BDS seats. Dr. George places reliance on paragraph No.11 of the said judgment which states that the Petitioner therein could not have been denied admission. Paragraph 11 of the said judgment which reads as under:-
8. Per contra, Mr. Mohinder JS Rupal, learned Counsel for the University of Delhi, supports the impugned judgment and states that no interference is called for. He states that the Appellant is a fence sitter. He contends that nothing prevented the Appellant from withdrawing from her allocated seat and participating in the spot counseling. He further states that as rightly pointed out by the learned Single Judge that if the Appellant herein is now permitted to participate in spot counseling while retaining her allocated seat, i.e. B.A.(Hons) Political Science in Mata Sundari College for Women, then the seat allocated to the Appellant herein will go waste as the same would not be available to any other candidate.
9. The relevant portions of the brochure which have been extracted by the learned Single Judge are once again being reproduced and the same read as under:-
1. Availability of seats
2. Program-Specific merit.
3. Order of Preference of College.
4. Category.
5. Any other allocation rules, policies, or criteria as mentioned in this document (CSAS-2022), UG BOI – 2022, or published on the admission website of UoD It will be mandatory for the candidate to take admission to the seat allocated in a Spot round. Failure to accept the allocated seat in the Spot Admission round will forfeit the candidate's eligibility for admission to UoD and s(he) will be out of CSAS. There will be no option of 'Upgrade' and 'Withdraw' during the Spot Admission rounds. The seat allocated in a particular Spot Admission round will be final and will not be upgraded in any subsequent round of Spot Admission rounds.” [Emphasis supplied; bold in original]
10. The Appellant has taken the CUET (UG), 2022 Examination. She had given her preferences of courses and colleges, and she was initially allotted a seat in BA (Hons.) History in Mata Sundari College which was her 57th preference. As she was not satisfied, she opted for an upgradation. In the second round, she could not be upgraded to a course/college which she had opted. She, therefore, participated in the third round, the results of which were declared on 13.11.2022 wherein she got an upgrade to BA (Hons.) Political Science in the same college which was her 56th preference.
11. Clause 9.[1] of the Information Brochure of CSAS-2022 provides that an admitted candidate can select the 'Upgrade' option for upgradation to a higher preference submitted by the candidate and the admitted candidate who opts for upgradation will automatically be upgraded based on the allocation policy. Further, in case a candidate does not get upgraded, then their admission to the earlier seat shall be retained and he/she will not be considered for upgradation. Therefore, it is immaterial as to whether a candidate chooses the option of freeze or not when they have not opted for upgradation.
12. A perusal of Clause 9.[1] demonstrates that a candidate who gets upgraded will have to accept the upgraded seat and complete the admission procedure on the upgraded allocated seat. The third round was the final round and she was admitted to the BA (Hons.) Political Science course in Mata Sundari College. The Appellant was thereafter not entitled to participate in the spot admission. She could have participated in the spot admission only after withdrawing her admission from BA (Hons.) Political Science course in Mata Sundari College.
13. As per the scheme, a candidate who wants to participate in the spot admission should either not have secured any of the preferences which had been opted by the candidate, and if the candidate had a preference which had been opted, then the candidate should have withdrew their admission from the allotted seat. A candidate after three rounds of counseling is not permitted to retain a seat and also opt for spot admission. Upgradation is permissible only till last round, which is the third round.
14. The Appellant cannot be permitted to be a fence sitter. If this system is not followed, then the process of admission cannot be completed. A seat has now been allotted to the Appellant, therefore, it will not be shown in the spot counseling and since that seat has already been allotted to the Appellant, it will not be filled up and will have to be reflected in a second spot counseling. This will then become an unending process.
15. The policy of the University to finalize the counseling cannot be found fault with. The scope of interference under Article 226 of the Constitution of India in matters of admission has been succinctly laid down by the Apex Court in a number of judgments. In Principal, Patna College, Patna & Ors. v. Kalyan Srinivas Raman (1966) 1 SCR 974, the Apex Court has observed as under:-
16. Similarly, in J P Kulshreshta (Dr.) v. Allahabad University, (1980) 3 SCC 418, the Apex Court has observed as under:-
17. A perusal of the abovementioned judgment shows that the process of admission are matters of policy and the courts must be slow to interfere unless the decision is completely arbitrary, capricious and whimsical in nature. In fact, the Apex Court has gone to observe that the courts must hesitate to dislodge decisions of the academic bodies. Similarly, in Rachna & Ors. v. Union of India, (2021) 5 SCC 638 and National Board of Examinations v. G Anand Ramamurthy & Ors., (2006) 5 SCC 515, it has been observed that in matters of policy, particularly in academic matters, Courts should be slow to interfere.
18. The judgment of the Apex Court in Pt. B D Sharma University of Health Sciences (supra) relied upon by the Appellant herein, is distinguishable. In the said decision, the Petitioner was a student aspiring to get admission in MBBS. However, she was not allotted a seat in the first counseling, and, therefore, she took admission in the BDS course. In the second counseling, the name of the Petitioner was not declared. However, it was found that persons ranked below her in the merit list had got the admission.
19. The Apex Court in the said case also stressed on strict adherence of the time schedule and observed that strict adherence of the time schedule must be kept in mind. In fact, the Apex Court went on to observe that there is no reason why every act of the authorities be not done as the procedure prescribed under the Rules. The Apex Court in that case moulded the relief and said that the said case was a rare and exceptional case relating to interference to meet the ends of justice. Those observations are not applicable to the facts of the present case.
20. In Dr. Vegesh Ayyar v. Post Graduate Selection Committee, ILR 1996 Kar 633, the facts reveals as under:- “6.. The petitioners in all these Petitions have challenged the correctness of these conditions prescribed for the second spot counselling notice. It is seen from the impugned notice that the candidates who have been allotted seats are excluded from attending the second spot counselling. Only those students who have attended the first round counselling and opted to wait for second round with a rank above 2143 are invited for second round counselling.
7. The petitioners have presented these Petitions on the ground that the eligibility prescribed for the second spot counselling has deprived them of an opportunity to seek admission in the subject of their choice at the College of their preference even though they are more meritorious than the candidates invited for spot counselling and the same has also resulted in discrimination between the students possessing same qualification besides resulting in the elimination of more meritorious students in preference to less meritorious students. It is the contention of the petitioners that at the first counselling they have not been given seats in the subject of their choice in the College of their preference and there was no option for them but to accept the seat offered to them by the Selection Committee outside the subject of the choice, they were forced to accept the said subject at the College offered to them. The acceptance of the said seat is not on their own volition and therefore they are entitled for fresh consideration of their case in respect of the seats that have fallen vacant along with other students. Even though they are entitled to be selected for the specialty of their choice on the basis of merit, they are prevented from seeking admission to such subject, solely on the ground that they have already been allotted seats contrary to the Rules of Admission.” (emphasis supplied)
21. However, in Paragraph 12 of the judgment, while granting relief, the Division Bench of the Karnataka High Court observed as under:-
22. In view of the above, the judgment of Dr. Vagesh Ayyar (supra) cannot be applied to the present case and this Court is not persuaded by the said judgment. The facts of the instant case differ from the judgment of Dr. Vagesh Ayyar (supra) as in that case every round of counseling was called spot counseling and a candidate who had opted for a seat in the first round of counseling was not permitted to participate in the second round of counseling while in the present case, every candidate was permitted to participate in three rounds of counseling and only left over seats were to be filled in the spot counseling. Therefore, the entire process of admission in the present case is different from the facts of Vagesh Ayyar (supra) and the analogy adopted in that case wherein even one chance to upgrade was not granted to the candidates cannot be applicable to the present case. The Appellant, having opted for a seat in the third round of counseling, cannot keep on holding the seat while searching for greener pastures in contravention of the scheme formulated by the University.
23. A suggestion was made by Dr. George that the Appellant can participate in the second round of spot counseling if she is prepared to surrender her seat, which the father of the Appellant, who was present in Court, declined to accept the same.
24. The Appellant, who is not prepared to surrender her seat because she is not aware as to whether a seat of her choice and preference is available or not, is essentially a fence sitter.
25. The policy procedure adopted by the University of Delhi, therefore, cannot be faulted and the judgment of the learned Single Judge does not require any interference.
26. The appeal is dismissed with the above observations.
SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J DECEMBER 06, 2022 Rahul/hsk