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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. --------------

       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.