Anil Kumar vs State of Haryana and others

J.S. Khehar, J.—The instant order will dispose of CWP No. 15755 of 1999 and CWP No. 485S of 2000 wherein a common question of law and fact arises for consideration.

In the disposal of these petition facts have been taken from CWP No. 15755 of 1999.

The petitioner is a student undergoing training in a diploma course in the field of Engineering. Provision has been made for shifting from a diploma course in engineering to a degree course in engineering. The aforesaid shifting is described as "Lateral Entry Scheme".

The C.R. State College of Engineering, Murthal, issued a prospectus inviting application for admission to all engineering colleges located in Haryana under the lateral entry scheme. There were in all 35 seats in the discipline of electrical engineering, out of which 20 seats were free seats and 15 seats were paid seats. The petitioner applied for admission and therefore appeared in a written test, wherein he was placed at Serial No. 21 in the merit list. The merit position of candidates in the written test is the sole basis for admission under the lateral entry scheme. In view of the aforesaid merit position, the petitioner could not be admitted to a free seat. He was accordingly admitted under a paid seat in the Jind Institute of Engineering ant Technology, Jind. Immediately on being admitted to the aforesaid course, he deposited his fees etc. and started to attend the classes in the aforesaid Institute,

The petitioner learnt that two candidates, namely, Sunil Kaushik, who was placed at Serial No. 10 in the merit list and Sanjay Bhatnagar who was placed at Serial No. 15 in the merit list, who had both been granted admission against the free seats in the discipline of electrical engineering, had not joined. The aforesaid two free seats were still vacant. The petitioner desired that his paid seat be converted into a free seat, in view of the fact that he was amongst first 20 meritorious candidates allowed admission in the discipline of electrical engineering. Since the aforesaid benefit was not given to the petitioner, he approached this Court by filing CWP No. 13762 of 1999 seeking a direction to the authorities to accommodate him against a free seat.

During the pendency of the aforesaid writ petition, the Director, Technical Education, Haryana, issued a communication dated 5.10.1999 directing the C.R. State College of Engineering, Murthal i.e. the nodal body for regulating admission for lateral transfer; to fill up vacant seats through the process of second counselling. In obedience of the aforesaid communication, the C.R. State College of Engineering, Murthal issued a public notice in the Times of India (New Delhi) dated 14.10.1999 inviting candidates to attend the second counselling. It was expressly mentioned in the said notice that admission would be regulated strictly on the basis of merit in the written test. It was further specified that all those candidates who had already been admitted during the course of the first counselling would have to produce a no objection certificate from the Institute where he had been granted admission and all original certificates in order to be considered by eligible for participating in the second counselling.

Since a direction for second counselling for filling up the vacant seats had already been issued, CWP No. 13762 of 1999 was disposed of as having been rendered infructuous.

To fulfil the condition for participation in the second counselling, the petitioner applied to Jind Institute of Engineering and Technology, Jind to issue him a no objection certificate and also release to him all his original certificates so that he could participate in the second counselling. The case of the petitioner is that the aforesaid Institute accepted to issue a no objection certificate only if he paid the entire fees of the remaining three years of the course. Since the petitioner declined to pay the fees for the remaining course, he was not issued the no objection certificate nor were his original certificates in the custody of the Institute where he had been admitted released to him.

When the second counselling was held on 18.10.1999, although the petitioner presented himself at the said counselling, yet he was not allowed to participate in the same on account of the fact that he had not produced a no objection certificate from the college where we had already been granted admission. He did not produce the original certificates as required in the not ice dated 14.10.1999 since they were also in the custody of the Institution.

During the course of the second counselling, the two vacant free seats in the discipline of electrical engineering were offered to Vikas Malik, respondent No. 5 and Ashok, respondent No. 6. The merit position of the said candidates in the written test was at Serial Nos. 25 and 36, respectively. The petitioner challenged the action of the respondents in allowing admission to respondents No. 5 and 6 by filing CWP No. 14729 of 1999. The same was, however, dismissed as withdrawn on 29.10.1999 with leave and liberty to file a fresh petition after asserting full facts, on the same cause of action. It is in these circumstances that the instant writ petition came to be filed by the petitioner for being allowed admission against one of the two free seats which fell vacant as a consequence of two candidates having not joined.

In the instant writ petition, the petitioner has impugned the validity of the action of the respondents in insisting upon the production of a no objection certificate from candidates who had already been admitted after the first counselling. The aforesaid issue is no longer res integra. This Court in CWP No. 13346 of 1999 Dinesh Kumar v. State of Haryana and other, decided on 31.7.2000 has held that non-consideration of the claim of the petitioner for reason of non-production of a no-objection certificate or original certificates, could not have been the cause for not considering the claim of the petitioner during the second counsel ling. The action of the respondents in not considering the claim of the petitioner is, therefore, not in consonance with law.

Having arrived at the aforesaid conclusion, the next question to be considered is, whether it would be fit and proper for this Court to pass any further order in favour of the petitioner or to leave to the authorities to do so ? Under normal circumstances, a Court would not assume to itself duties and the responsibilities which have to be performed by the administration or the executive. In this case, since admission under the lateral entry scheme is based solely on the merit secured by a candidate in the written test, and on no other basis, it is not considered appropriate to relegate the issue back to the authorities in view of the admitted position before this Court that the petitioner, respondent No. 5 and respondent No. 6 were placed at merit position Nos. 21, 25 and 36, (in the written test conducted by the C.R. State College of Engineering, Murthal) respectively. The petitioner having higher merit than respondents No. 5 and 6, was liable to be preferred to them for adjustment against a free seat in the discipline of electrical engineering.

This petition is, therefore, allowed with a direction to the respondents to adjust the petitioner against a free seat in preference to respondents No. 5 and 6.

The petitioner in CWP No, 4858 of 2000, Vikas Malik was arrayed as respondent No. 6 in CWP No. 15755 of 1999. A perusal of the facts narrated above would reveal that he was chosen for admission during the course of second counselling. He is placed at Serial No. 25 in the merit list. Factually, however, he was not allowed admission even after the second counselling whereas admission was allowed to Ashok, who is arrayed as respondent No. 5 in CWP No. 15755 of 1999, and is arrayed as respondentNo. 5 in CWP No. 4858 of 2000 filed by Vikas Malik.

The instant petition was filed on 28.4.2000 whereas the second counselling was held on 18.10.1999. The petitioner has approached this Court more than seven months after Ashok (respondent No. 5 in CWP No. 4858 of 2000) was allowed admission under the Lateral Entry Scheme. The petition filed by Vikas Malik suffers from the infirmity of delay and laches. In matters pertaining to admissions, there is no scope for delay. If Vikas Malik had approached this Court in time, Ashok, respondent No. 5 may have sought admission elsewhere on the basis of his merit position. Immediately after the second counselling, which resulted in his being granted admission to the course in the discipline of electrical engineering which is subject-matter of the present writ petition, he was automatically/ipso facto excluded from consideration, to other courses, disciplines or institutions. Seven months delay in filling this petition will have an irreparable effect on the academic carrier of Ashok, respondent No. 5. The delay in filing CWP No. 4858 of 2000 is, therefore, a matter for material consideration. And, as stated above since the delay in filing the instant writ petition has deprived Ashok, respondent No. 5, from availing of his rights as noticed above; the said delay must in itself be deemed to have vested certain rights in Ashok, respondent No. 5, to the exclusion of the petitioner. In view of the factual position expressed above it is not appropriate to consider the claim of the petitioner in CWP No. 4858 of 2000 on account of delay and laches. CWP 4858 of 2000 is accordingly dismissed. The same is accordingly dismissed on account of delay and laches.

In view of the position expressed above, CWP No. 15755 of 1999 is allowed. Anil Kumar petitioner therein is held entitled to occupy one of the free seats fallen vacant after the first counselling and which was subject matter of second counselling, whereas CWP 4858 of 2000 is dismissed on account of delay and laches.

Order accordingly.