Full Judgment Text
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PETITIONER:
KURUKSHETRA UNIVERSITY AND ANR., MUKESH KUMAR
Vs.
RESPONDENT:
JYOTI SHARMA AND OTHERS, KURUKSHETRA UNIVERSITY AND OTHERS
DATE OF JUDGMENT: 18/09/1998
BENCH:
A.S. ANAND & D.P. WADHWA.,
JUDGMENT:
--------
D.P. Wadhwa, J.
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Leave granted.
Both the appeals are against the judgment dated December 11,
1997 of the Division Bench of the Punjab and Haryana High
Court. By the impugned judgment High Court allowed the writ
petition of Jyoti Sharma, filed under Article 226 of the
Constitution, seeking admission to M.Sc. (Zoology) in
Kurukshetra University (for short ’University’) for the
academic year 1997-98 and for cancelling the admission of
Mukesh and Sunaina to the same course. Both the University
and Mukesh felt aggrieved and have filed these appeals. In
the appeal filed by the University respondents are Jyoti
Sharma, Mukesh and Sunaina while in the appeal filed by
Mukesh respondents are the University, Jyoti Sharma and
Sunaina. When special leave petitions came up before this
Court on April 6, 1998 it was pointed out by the University
that three seats in M.Sc. (Zoology) in the University were
still vacant and that all the three students, namely,
Mukesh, Sunaina and Jyoti Sharma could be permitted to
attend the classes and appear in examination subject, of
course, and without prejudice rights of the parties in these
appeals. These three students are continuing their studies
in the subject. Thus the appeals would, therefore, appear
to be rather more of academic interest but then since the
High Court held that the Vice-Chancellor of the University
could not have exercised powers under Sub-section (5) of
Section 11 of the Kurukshetra University Act, 1986, (for
short ’Act’) while granting admission to Mukesh and Sunaina,
who were in the merit list at serial Nos. 1 and 26 and had
cancelled their admission and instead directed admission of
Jyoti Sharma, who was in the merit list at serial No. 30,
two questions have arisen for our consideration - (1) if the
Vice-Chancellor was justified in invoking his powers under
Section 11(5) of the Act, and (2) could the High Court
direct admission of Jyoti Sharma, who was lower in the merit
list, without giving opportunity to other candidates higher
in order of merit?
To answer these question we may examine how the controversy
arose which lead Jyoti Sharma to approach the High Court.
For admission to various courses including M.Sc. (Zoology)
for the academic year 1997-98 University issued Handbook of
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Information (Handbook) giving the background of the
University and prescribing admission procedure including
eligibility conditions. It was, however, made clear in the
Handbook that nothing contained therein should be construed
to convey sanction or cited as an authority for which
University regulations in calendars Volume-I, II and the
relevant rules in calendar Volume-III alone were applicable.
Up to the stage of drawing the merit list for admission
there is no dispute. Handbook prescribed the schedule of
dates for entrance test and admissions. For M.Sc.
(Zoology) it was as under:-
Date of Entrance Test : 11.07.1997
Time of Entrance Test : 9 a.m.
Dates for displaying the
first list : 15.07.1997
Second List : 18.07.1997
Third List : 22.07.1997
Final List : 24.07.1997
One to three days time was given for deposit of fees to
the candidates who were granted admission. Some of the
relevant clauses of the admission procedure as given in the
Handbook are as under:-
"a) Candidates will not be required to appear for
interview unless otherwise specified. The merit list
of the selected candidates will be displayed on the
Notice Board of the department concerned.
Candidates are advised to attach all the documents
and the testimonials along with their applications
for determining their eligibility and merit and for
allowing weightages. Incomplete and late
applications will not be considered. Candidates
whose name(s) appear in the Merit List will be
considered eligible for admission within the
prescribed time. Such candidates will have to
present themselves on the scheduled time and date in
the concerned Department for verification of their
original documents. No. excuse what so ever shall
be entertained for non-production of original
documents.
b) The candidates whose names appear in the merit
lists will be considered eligible for admission
within prescribed time. Such the Department
concerned at the scheduled date, time and place with
their original certificate and documents for
verification. No. excuse of any sort including late
arrival of buses, trains or any other mode of
transport, and claims of having been sick, for not
presenting themselves in time shall be entertained.
c) All the remaining vacant seats under various
categories, except those reserved for Scheduled
Castes/Scheduled Tribes, after display of 2nd list
will be grouped together and considered open and
will be filled up on the basis of open merit out of
eligible candidates who had applied by the last date
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specified and had also appeared in the entrance
test.
d) All the candidates who may be interested in
seeking admission shall physically present
themselves in the concerned Department between 9.00
a.m. to 11.00 a.m. on the date given in the
schedule of admissions to mark their attendance
provided that they had submitted their Admission
Form in time and had also appeared in the entrance
test. Thereafter the final merit list will be
prepared from amongst those who have marked their
attendance. It will be displayed on the Notice
Board of the respective Department. Candidates so
selected will get their documents verified and
obtain the admission slip from the Chairperson of
the Department concerned and deposit their dues etc.
as specified above."
There are twenty seats in M.Sc (Zoology) in the University.
Following the procedure prescribed in the Handbook names of
first twenty students in the merit list were displayed on
the Notice Board on July 15, 1997. Of these twenty only
nine students deposited their fees and were granted
admission. For the remaining eleven seats names of eleven
students in different categories (Open/SC/ST) in the merit
list were displayed on July 18, 1997. Of these only six
deposited their fees and were granted admission. For the
remaining five seats of students similarly in the merit list
were displayed on July 22, 1997 and out of them only three
students deposited their fees and were granted admission.
As on July 24, 1997 on which date two most meritorious
students got admission. It is the submission of the
University that physical presence of students seeking
admission is required only in the fourth list on July 24,
1997 and for the three earlier lists student were not
required to be physically present but were required to
deposit their admission fee after getting their testimonials
checked. We do not think that this submission arises for
any consideration before us. All the seats having been
filled up on July 24, 1997 admissions were closed. However,
for students left the course and as a consequence four
vacancies arose after July 24, 1997. These vacancies not
only arose in the Department of M.Sc. (Zoology) but in
various other Departments in the University. The Handbook
did not specify as to what is to be done in such
circumstances. Here the Vice-Chancellor of the University
intervened. He issued a notification dated August 22, 1997
having regard to number of vacant seats in the University
Teaching Departments. He ordered:-
"1. Where the seats are vacant and admission forms
are pending in the departments, the department shall
call three times the number of candidates of the
vacant seats for filling up such seats.
2. .........
3. The departments having vacant seats under
category No. 1 above, shall call eligible candidates
whose applications are pending (including those who
could not deposit their dues) by registered
post/telegram for physical presence on 28.8.1997 and
finalise these admissions by closing of current
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month, with usual late fee."
Again, the Vice-Chancellor issued directions on
September 9, 1997 to the following effect :-
"In continuation of this office letter No.
ACM-3/admn. 97/19375-416 dated 22.8.1997 in the
University Teaching Departments, the Vice-Chancellor
has ordered to extend the schedule as under :-
1. Where the seats are vacant and admission forms
are pending in the departments, the department shall
call three times the number of candidates of the
vacant seats for filling up such seats.
2. .........
3. The Departments having vacant seats under
category No.1 above, shall call eligible candidates
whose applications are pending in the department,
excluding those called for physical presence on
28.8.1997 and failed to turn up, by registered
post/telegram for physical presence on 15.9.97 and
finalise these admissions by 17.9.97 with usual late
fee.
You are requested to take further necessary action
accordingly."
Following the directions issued by the Vice-Chancellor
on August 22, 1997 twelve students including those who had
been called earlier but had not deposited their fees were
called on September 8, 1997 and out of them only two
appeared. Two more students including Jyoti Sharma, who had
not been called, also appeared. Two seats in the order of
merit were filled up. Again following the direction of the
Vice-Chancellor dated September 9, 1997 more students in the
order of merit were called for remaining two seats and three
appeared on September 15, 1997 and first two were granted
admission on the same day. Jyoti Sharma was not called for
interview but she appeared and as she was lower in the order
of merit she could not be granted admission. She then
approached the High Court.
High Court examined the admission record maintained by the
University. it noticed that Mukesh and Sunaina never
appeared personally though Jyoti Sharma did appear on all
the due dates and yet Mukesh and Sunaina were granted
admission. According to High Court a cumulative reading of
various provisions as contained in the Handbook showed that
candidates, whose names appeared in the merit list, could be
considered eligible for admission provided they presented
themselves on the scheduled time and dates in the concerned
department for verification of their original documents and
on their failure to deposit fee was the effect of treating
their seats vacant to be allotted to candidates next in the
merit list. High Court was thus of the view that Mukesh and
Sunaina, who failed to present themselves before the
competent authority between July 15, 1997 and July 24, 1997,
lost their right altogether to be considered for admission
and said "it was the bounden duty of the concerned authority
to have offered admissions in the order of merit to the
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candidates who had made themselves available on the last
date of admission". High Court accepted the contention of
Jyoti Sharma that admission of Mukesh and Sunaina was
contrary to the rules as contained in the Handbook and the
same was liable to be nullified and Jyoti Sharma, who
appeared next below in the merit list, got the right to be
admitted. High Court held that the University could not
have granted admission to Mukesh and Sunaina, which was
contrary to the procedure prescribed in the Handbook and
even after availing opportunity of admission they failed to
appear on July 15, 18, 22 and 24, 1997. High Court found
substance in the submission of Jyoti Sharma and there was no
explanation given by the University as to why the University
did not admit four candidates against open category seats
from amongst those who had presented themselves on July 24,
1997. High Court held this action of the University to be
arbitrary. It appears to us that High Court felt in error
in accepting this submission of Jyoti Sharma as four seats
which felt vacant were after July 24, 1997. On July 24,
1997 all the thirty seats in the Zoology Department had been
filled up and admission closed. Since the Handbook did not
prescribe as to how the seats falling vacant were to be
filled up after admission had been closed it was not
necessary for the High Court to conclude that students who
had been given opportunity earlier and did not avail of the
same could never had been granted admission. University
also fell in error in contending that under Section 11(5) of
the Act Vice Chancellor could take action and had power to
issue notifications dated August 22, 1997 and September 9,
1997. High Court noticed that Sub-sections (4) and (5) of
Section 11 but University did not say if power could be
exercised under Sub-section (4) as the University based its
case solely on Sub-section (5) of Section 11. Both these
Sub-sections are as under :-
"11(1), (2), (3) xx xx xx
(4) The Vice-Chancellor shall be the principal
executive and academic officer of the University and
shall exercise general supervision and control over
the affairs of the University and give effect to the
decisions of all the authorities of the University.
(5) The Vice-Chancellor may, if he is of the
opinion that immediate action is necessary on any
matter, exercise any power conferred on any
authority of the University by or under this Act,
except in the matters involving creation or
abolition of a Faculty, creation or abolition of a
Faculty, Department, or post, the matter involving
appointment or removal of an employee :
Provided that the Vice-Chancellor, before
exercising powers under this Section, shall record
in writing the reasons, why the matter cannot wait
till the meeting of the authority concerned:
Provided further that if the authority
concerned is of the opinion that such action ought
not to have been taken, the decision of the
authority thereon shall be final;
Provided further that person in the service of the
University who is aggrieved by the action taken by
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the Vice-Chancellor under the sub-section shall have
the right to represent to the Executive Council
within one month from the date on which decision on
such action is communicated to him and thereupon the
Executive Council may confirm, modify or reverse the
action taken by the Vice Chancellor. The employee
shall be informed that the action has been taken
under emergency powers.
xxx xxx xxx xxx xxx"
High Court said and in our view rightly that power under
Section 11(5) was hedged with the following conditions :-
(a) the Vice-chancellor must be of the opinion that
immediate action is necessary on a particular
matter;
(b) the Vice-Chancellor must record reasons in
writing showing that the matter cannot wait till the
meeting of the authority concerned; and
(c) if the authority concerned is of the opinion
that such action ought not to have been taken, the
decision of the authority is to be treated final."
According to High Court there was no such emergency
for the Vice-Chancellor which warranted immediate action in
his issuing two notifications and that he, therefore, could
not have exercised powers under Section 11(5). High Court
examined the records of the University and noted that it did
not show that Vice-Chancellor recorded any reasons in
writing showing that immediate action was necessary to
protect the interest of the University and of the student
community as required by first proviso to Section 11(5).
Thus according to High Court Vice-Chancellor could not have
exercised emergency powers to "facilitate the admission" to
those who rendered themselves ineligible to be admitted by
remaining absent on the dates specified in the rules and
that the two notifications issued by him contravened rules
framed by University for admission to various courses. On
these premise admission of Mukesh and Sunaina was set aside
and mandamus issued to admit Jyoti Sharma.
An objection has been raised by University that it was not
correct on the part of the High Court of hold that the
Vice-Chancellor exercised power to "facilitate the
admission" of Mukesh and Sunaina thus causing aspersion on
the action taken by the Vice-Chancellor. We do not think
that the High Court intended to cause any aspersion on the
Vice-Chancellor by use of the words "facilitate the
admission". Reading of the impugned judgment of the High
Court merely conveyed that the action of the Vice-Chancellor
gave advantage to Mukesh and Sunaina for admission which
right they had lost. Nothing need by read more into the
words used by the High Court.
It was submitted by Mr. Gupta, learned counsel for the
University, that the impugned judgement of the High Court
has in effect, divested the Vice-Chancellor of his powers of
admission where the Handbook is silent. He pointed out that
under Section 11(4) Vice-Chancellor is principal executive
and academic officer of the University and is empowered to
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exercise general supervision and control over the affairs of
the University and also to give effect to the decisions of
all the authorities of the University. Mr. Gupta said if
the decision of the High Court is correct it would be
difficult for the Vice-Chancellor to smoothly run the
affairs of the University and it is not that Executive
Council can be called as often as contingency like the
present one arises. According to Mr. Gupta it was a case
of emergency inasmuch as academic year had begun and seats
had fallen vacant and there were students who were eligible
for admission. What the Vice-Chancellor did was to give
option to all the remaining students irrespective of the
fact whether they had appeared earlier or not and then the
admission was granted to more meritorious students. The
action of the Vice-Chancellor was reasonable and bona fide
and in the academic interest of the University.
Our attention has been drawn to Section 23 of the Act under
which Executive Council, which is the principle executive
body of the University, is authorised to issue Ordinances.
Under Section 22 an Ordinance may provide for admission of
students to University, their courses of study, etc.
Ordinance No. 1 provides that admission of students shall
be regulated by Admission Committee, constitution of which
is provided therein. It is the Admission Committee which
prescribes the manner in which admission to the University
Teaching Departments and to the colleges
recongnised/maintained by the University shall be regulated.
It is the Admission Committee which lays down the principles
for drawing up merit lists of candidates applying for
admission, number of seats, reservation of seats, schedule
of dates for admission to various courses, etc. Reference
was also made to Minutes of the Admission Committee which
had prescribed the admission procedure under the Handbook
and which authorised the Vice-Chancellor to decide the
schedule of admission for the academic year 1997-98. With
reference to these minutes it was pointed out that when
earlier for the academic year 1996-97 such contingency had
arisen and the Vice-Chancellor exercised his powers the same
were approved by the Admission Committee. But these
submission relating to Sub-section (4) of Section 11 and
powers of the Admission Committee of the University were not
made before the High Court to justify the action of
Vice-Chancellor in issuing the two notifications and the
High Court had no opportunity to consider the same. We
cannot permit the University to come up with a new case
before us which was not pleaded before the High Court. If
outside Sub-section (5) of Section 11 of the Act
Vice-Chancellor has powers to take action, which has been
impugned before the High Court, we are not called upon to
decide the same.
In the circumstances we do not find any error in the
impugned judgment where the High Court held that the
Vice-Chancellor could not have in the established facts of
the case exercised power under Section 11(5) of the Act by
issuing notifications dated August 22, 1997 and September 9,
1997. As regards the objection of the University that there
could be more meritorious students than Jyoti Sharma we will
only say that no one has come forward to stake his claim for
admission and since one academic year has already been over
it loses its relevance. If the action of the
Vice-Chancellor is valid, University is certainly right in
its submission that students more meritorious than Jyoti
Sharma should first have been offered the seat. Since three
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seats in the M.Sc. (Zoology) for the academic year 1997-98
were vacant at the time when these matters came up before us
and all the three students Mukesh, Sunaina and Jyoti Sharma
have been accommodated we will set aside the order of the
High Court cancelling admission of Mukesh and Sunaina. All
the three students can continue their studies in M.Sc.
(Zoology) in the University. A happy ending at the for
them.’
Both the appeals are disposed of these terms. There
shall be no order as to costs.