Anoop Prakash Awasthi vs University of Delhi and Another

S. Ravindra Bhat, J.—The writ petitioner, in these proceedings seeks a direction to the respondents to immediately complete the process of allocating a hostel facility and exhausting all existing vacancies. Other directions are sought, that the guest clause of certain quotas, such as those made available to Provost and Financial Guarantor conditions should either be rationalized or removed.

When the petitioner approached the Court in 2008, he was a student of LL.B First Year in the Campus Law Centre, having secured 394 marks in the entrance examination on 17.06.2007. He was admitted on 17.07.2007. He claims that even though he ranked sufficiently high, and had applied for accommodation in University�s Hostels, yet, was not selected. He contends that in the P.G. Men�s Hostel, 23 seats are earmarked for law students out of which only 18 were actually filled, thus leaving 5 vacant seats. He also refers to the position in other hostels likewise, law students had not been given their full in the quota. It is also contended that the hostels were permitting unauthorized occupation by guests resulting in deprivation of facilities, to eligible students. The petitioner relies upon replies to queries made to the Delhi University and contends that the procedure for granting admission to hostels is arbitrary. It was submitted that despite existence of vacancies, he was deliberately denied a hostel seat.

This Court had, during course of the proceedings, issued an order on 05.08.2008, directing Delhi University to grant the petitioner admission to P.G. Men�s Hostel on being prima facie satisfied on the basis of materials on record. The said order is in the following terms:

Present: Mr. Sanjay Jain, Sr. Adv. (Amicus Curiae) with Mr. Arun Mitra, Adv. for the petitioner. Mr. Mohinder Rupal, Adv. for the respondent.

WP(C) No. 2764/2008.

At present, the petitioner is a second year student of law. The grievance of the petitioner is that despite there being hostel rooms available, no room is being allotted to him. Notice to show cause was issued. The respondents have filed their counter affidavit. During the pendency of this matter, Mr. Sanjay Jain, Senior Counsel was appointed as Amicus Curiae to assist the Court. The matter has been adjourned on various dates for one reason or the other. Documents have also been produced in Court showing the status of rooms available. Based on the RTI query, learned senior counsel appearing for the petitioner has relied upon a document at page 86 to show that one hostel room is still lying vacant.

Today during the course of hearing, learned Counsel for the respondents has handed over another list to show that four rooms, which are meant for the students of first year, had already been allotted. Counsel for the respondents fairly submits that two other rooms are available and out of them one room is meant for foreign quota students and another for Ph.d. quota.

It is not in dispute that by 30th, April, each year, all rooms are supposed to be filled up. Even after the cut off date i.e. 30th April, admittedly two rooms are lying vacant and have not been allotted to any student, nor any student has approached the respondents for allotment. As an interim measure, the respondents are directed to allot one room to the petitioner, subject to further orders from this Court. This room will be allotted to the petitioner purely as an interim measure and no equity will flow in favour of the petitioner. The room will be allotted to the petitioner within two days from today. This allotment is subject to the final outcome of the writ petition. The respondents will file all relevant documents, they wish to rely upon, in the meanwhile, to enable this Court to hear the matter further.

List on 04.11.2008.

Dasti.

The respondent University in its counter affidavit dated 28.07.2008 mentioned about the facts. According to it, the petitioner had applied in four hostels (Gwyer Hall, Jubilee Hall, P.G. Men�s Hostel and Mansarover Hostel) for the session 2007-08; that session had ended. The affidavit further stated that the petitioner was at liberty to apply afresh and such an application would be dealt with by various hostels, on its merits. The University also deposed that so far as Gwyer Hall was concerned, the petitioner had applied on 17.08.2007. That hostel offered 162 seats; the petitioner�s application was incomplete and was not entertained. The University claims that in this hostel, no student ranking below the petitioner, or less merited than him, was admitted in 2007-08 and that those who were granted such admission were ranked 7, 15, 27 and 55. As far as Jubilee Hall is concerned, the total hostel intake was 90 for the session 2007-08. It is claimed that though the petitioner had applied, his name did not figure in the merit list and that all the 15 seats distributed to LL.B First year course (from a total of 40 seats allocated to LL.B), none ranking below the petitioner was given admission. As regards the P.G. Men�s Hostel, (the admission for which ultimately the present proceedings were pressed, during the hearing) is concerned, the University contends that the petitioner applied on 7.8.2007. This hostel had a total of 100 seats for 2007-08. It is said that 98 admissions, including admissions in four phases were made for the academic session 2007-08. Four students were admitted from the first year LL.B course and four students were admitted from the second year course for the relevant period, i.e. 2007-08. It is submitted that all those who were granted admission in the first year quota ranked higher than the petitioner. The University relies upon the merit list of the LL.B first year entrance examination, which has been produced with the affidavit.

During the hearing, the writ petitioner was represented by the amicus, Mr. Sanjay Jain, Senior Advocate, appointed previously by the Court. The court is grateful for the assistance rendered by the learned senior counsel. He contended that the records reveal that vacancies existed in the P.G. Men�s Hostel, which could be filled up. Reliance was placed upon a decision of this Court reported as Abhinitam v. University of Delhi 112 (2004) DLT 53 to say that a foreign quota vacancy existed in the law course, that should have been validly diverted for being filled by a merited candidate. It was said, that on an application of the ratio in that judgment, the respondents should have admitted the petitioner. Even according to the office of the Dean of Colleges, the University should have allotted a seat sometime in the end of July 2008. It was contended by relying on the list produced along with C.M. No. 14584/2008 that the University indulged in arbitrary acts because it admitted ineligible persons like Rakesh Dagar, even though he was an ex-student. For this purpose, reliance is placed on a certificate issued by the Faculty dated 23.09.2008 stating that the said Rakesh Kumar Dagar had taken admission in the LL.B. first year course as a regular student in 2006-07 and passed one paper out of 5 papers and that during 2007-08, and that he was an ex-student. Learned Counsel relied upon the same list to say that two foreign quota seats were wrongly diverted to other Faculties. It was submitted that since no students were available in the Foreign Quota seats earmarked for LL.B. First Year course, the University should not have diverted those to other Faculties and instead, retained it for utilization by the other candidates and the petitioner.

It is argued that the respondents admitted one Raj More, who had no right to be continued since he was expelled from the hostel. Learned senior counsel refers to some letters written by the P.G. Men�s Hostel to the petitioner on 20.03.2009 and also relies upon the copy of an F.I.R. said to have been filed, for this purpose. It is submitted that the Handbook of Information Rules for 2007-08 session clearly stated that 23 seats were earmarked for the Faculty of Law (Clause 4.1.1); of these 4 seats were to be earmarked from the General category seats for First Year students. The hostel�s obligation is to ensure that in case foreign students were not available, general merit students were not adversely impacted and were given admission. It is submitted that though there is no dispute about every candidate having to apply, in August, in the first phase, secondly in October in the second phase and later by 31st March, in the third phase; the right of a merited candidate to be considered and continued is undeniable. Therefore, reliance is placed upon Rule 3.3 read with Rule 5.1 to say that once a student is held entitled; or granted admission on the basis of his merit, provided he satisfies the eligibility criteria, he shall be eligible to stay in the hostel for the entire duration of his course, which under Rule 5.1(d) is three years. The only exception provided is in Rule 5.3 if the student fails in his examination.

The respondents contend that this Court made the interim order on the basis of the affidavit and the materials which existed on the record, particularly, the notings. It is contended that the petitioner had secured 394 in the entrance examination for 2007-08, whereas Rakesh Kumar Dagar, against whom he has leveled allegations, secured a better ranking, having secured 401 in the merit list, in the entrance examination. However, it is argued that Rakesh Kumar Dagar had undoubtedly been admitted in the previous year, but apparently due to his poor performance or whatever reason, he sought admission in the next year, appeared in the entrance test again and secured high ranking and was better placed than the petitioner. Therefore, there cannot be any grievance as far as his admission to the hostel is concerned. It was submitted that the petitioner cannot complain of arbitrariness because all those granted admission in the LL.B. First year quota were more merited, having performed better than him in the entrance examination.

It was submitted that so far as the later admission (of Rajat Mor) is concerned, the petitioner being a student was aware that he ought to have applied, in the succeeding year and not based himself entirely on the fate of this litigation. Learned Counsel relied on Rules 3.2 and 3.3 for this purpose. So far as the complaint of discrimination by the University as against the petitioner, vis-�-vis Rajat More, it is contended that he too had fared better in the LL.B. First year and therefore, ranked better than the petitioner. It is submitted that, therefore, there is no illegality in the respondent�s action in declining or not granting hostel accommodation to the petitioner.

From the above discussion, following undisputed facts emerge:

(1) The petitioner applied for hostel accommodation in the P.G. Men�s Hostel in August 2007. The hostel has a total intake of 100.

(2) The hostel has a total 23 seats for the LL.B. course, of which 15 are earmarked for General category candidates. Of these, 4 are allocated for LL.B. First year candidates. A total of 2 seats are earmarked for the foreign students.

(3) The hostel admissions are carried out in three phases; the students have to apply in August (first phase); by 31st October (second phase); and by 31st March (third phase). When the petitioner applied in the first instance, his request was not acceded to.

(4) Two foreign quota seats provided for Law Faculty were filled by foreign students from other Faculties.

For a fuller appreciation of the controversy, it would be necessary to consider the relevant provisions of the Handbook containing the Rules for admission to the Post-Graduate Men�s Hostel. Rule 2 prescribes eligibility for admission it states (Rule 2.1) that the applicant should be full-time bona fide post-graduate student or be a full-time degree student admitted to a post graduate department or Faculty. Rule 3 prescribes admission procedure. According to Rule 3.1, short listing of applications is done by an Admission Committee. Rules 3.2, 3.3, 3.4 and 3.5 state as follows:

3.2 The admission is made for a period of one academic year and a fresh application is need for re-admission at the beginning of each year. Except the M.Phil and Ph.D. scholars, residents will vacate the rooms either on or before the last day of the academic year or immediately after his last university examination being held at the end of the academic year. Residents wishing to stay in the Hostel during the summer vacation may be allowed to do so as resident guests by the Provost on their written request. If a student fails to take re admission within ten days after declaration of his result or the due date, whichever is later, he will be charged Rs. 5/- per day as late admission fee and after the expiry of one month from the due date or date of declaration or results, he will forfeit his right to re-admission and will be evicted.

3.3 Admission is made strictly on the basis of merit as decided by each Department, provided the applicants satisfy the eligibility criteria.

3.4 A student who has taken admission to any one of the P.G. hostels of Delhi University will not be considered for admission to another P.G. Hostel, till he completes the course on the basis of which he had taken admission to the earliest hostel.

3.5 If admission to a course is made through a written test/interview such that the Department provides a merit list for admission, the same merit will be followed for admission to the hostel. No weight age will be given for any other parameter or factor for admission to the hostel in this case.

The distribution of seats is indicated by Rule 4. For the purpose of facility, it would be

necessary to extract the entire Rule which is as follows:

DISTRIBUTION OF SEATS

4.1 The hostel has a total of 100 single-seated rooms, in addition to one guest room. The allocation of seats for different categories of students among various faculties is as follows:

G.C.** S.C.** S.T.** F.** Total ______________________________________________________________ 4.1.1 Faculty of 15 4 2 2 23 Law ______________________________________________________________ 4.1.2 Faculty of 17 3 2 3 25 Science ______________________________________________________________ 4.1.3 Faculty of 2 - - - 2 Education ______________________________________________________________ 4.1.4 Delhi 3 1 � 1 5 School of Economics And Faculty of Management Studies ______________________________________________________________ 4.1.5 Faculty of 2 - - - 2 Music and Fine Arts ______________________________________________________________ 4.1.6 Faculty of 20 6 3 3 32 Arts and Social Sciences ______________________________________________________________ 4.1.7 Faculty of 4 1 � 1 6 Mathematics ______________________________________________________________ 4.1.8 Blind/ - - - - 3 Physically Handica pped** ______________________________________________________________ 4.1.9 Wards of - - - - 1 War Widows* * ______________________________________________________________ 4.1.10 Sports - - - - 1 Person** ______________________________________________________________ Total 63 15 7 10 10 0 ______________________________________________________________ **Seats reserved for these categories can be allotted to applicants of the same category from any faculty/subjects if number of applicants under these categories in any other faculty is less than the prescribed seats. Only after exhausting all the applications received by the Hostel under a particular quota the spare seats can be shifted to another quota/category of the same or any other faculty/subject.

G.C. = General Category, S.C. = Schedule Caste, S.T. = Schedule Tribe, F. = foreigner 4.2 Faculty/Department-wise seat distribution in the general quota:

S. No. Name of Faculty Total seats Department/Course Seats ____________________________________________________________________________ 1 Faculty of law 15 LLB I Year 4 LLB II Year 4 LLB III Year 4 LLM I Year 1 LLM II Year 1 Ph.D 1 ____________________________________________________________________________ 2 Faculty of Science 17 Anthropogy 2 ________________________________ Botany and 3 Environmental Biology ________________________________ Chemistry 3 ________________________________ Geology 2 ________________________________ Physics and Astrophysics 2 ________________________________ Zoology 2 ________________________________ Ambedkar Centre for 1 Bio-Medical Research ________________________________ ________________________________ 1 ____________________________________________________________________________ 3 Faculty of 2 - 2 Education ____________________________________________________________________________ 4 Delhi School of 3 Economics 1 Economics and FMS ____________________________________________________________________________ 5 Faculty of Music 2 Sociology 1 ____________________________________________________________________________ 6 Faculty of Arts 20 Geography/FMS 1 and Faculty of ________________________________ Social Sciences - 2 ________________________________ English 2 ________________________________ Hindi/Tamil/Punjabi 3 ________________________________ Germanic and Romance 1 Studies ________________________________ History 3 ________________________________ Linguistics 1 ________________________________ Modern Indian 1 Languages and Literary Studies ________________________________ Philosophy 1 ________________________________ Political Science 2 ________________________________ Psychology 1 ________________________________ Sanskrit 1 ________________________________ African/Buddhist 2 Studies/Commerce ________________________________ Slavonic and Finno- 1 Ugrian Studies ________________________________ Urdu/Arabic/Persian 1 ____________________________________________________________________________ 7 Faculty of Mathematics 1 Mathematical ________________________________ Sciences Operational Research 1 ________________________________ Statistics 1 ________________________________ Computer Science 1 ____________________________________________________________________________ 4.3 In case no application or inadequate number of applications is received under the quota of any subject/faculty, the spare seat/s of such a subject/faculty may be allocated to subject/s of a sister department/s or faculty/-ties by the Admission Committee. If candidates for SC/ST are not available among the applicants in a faculty, seats reserved for SC/ST candidates of the faculty will be filled up by the candidates of the same categories from other faculties.

Thus, Rule 4.2 which deals with the Faculty/Department-wise seat distribution in the General Quota, earmarks four out of 15 seats for LL.B. First year students. Rules 5.1, 5.2 and 5.3 state as follows:

DURATION OF STAY

5.1 A student shall be eligible to stay in the hostel for the duration of his course as per the details given below:

a) M.A./M.Sc./LLM/MBA/MCA : 2 years.

b) M.Phil: 18 months or span period as laid down by the M.Phil Committee of the department concerned and approved by the Academic Council of the University, but in no case more than the maximum of two years.

c) Ph.D.: 5 years (students re-registered in Ph.D. After the expiry of first 5 years of enrolment in Ph.D. Will not be eligible for admission to the hostel.

d) LL.B.: 3 years.

e) Maximum duration of stay in P.G. hostel system: six years.

5.2 A resident shall vacate the hostel within a week after completing his:

a) Statutory period of the course as specified above, or

b) M.Phil/Ph.D. thesis and viva-voce examination, or c) Six Years in the University hostel system (in whatever capacity after the first admission), whichever is earlier out of the three options.

5.3 A student who fails in the examination or fails to appear in the examination for any reason whatsoever, (even on medical grounds) forfeits his right to re admission. No student will be re-admitted and granted any extension on medical ground.

The first question is whether the hostel acted arbitrarily as claimed by the petitioner in admitting students from other Faculties, as against two seats earmarked for such foreign students in LL.B. First Year college. The petitioner relies upon Abhinitam''s decision to say that allocation of the two seats to foreign students from another Faculty should not have been resorted to and that it has deprived him of a legitimate right. The relevant part of the judgment reads as follows:

The aforesaid data becomes relevant in view of the contention of the petitioner that four seats in the category of foreign students allocated to the Law Faculty were still lying un-filled. Learned Counsel for the respondents, however, stated that there could not be any transfer of such seats and in this behalf referred to the provision contained in the end of Rule 3.10, which is as under:

If the candidates for SC/ST are not available among the applicants in a faculty, seats reserved for a faculty will be filled up by the candidates of the same categories from other faculties.

Out of these 15% & 7.5% seats are reserved for SC and ST students, respectively, 10% seats are for foreign students, 1% for wards of war widows and 3% for visually handicapped and other disabled students and 1% for sports quota.

A reading of the aforesaid provision, in my considered view, makes it clear that the seats allocated to SC/ST category which are not filled up from the relevant department, have to be filled up from other faculties and cannot be transferred to the general category. There is, however, no such restriction provided in respect of the foreign students.

This aspect is extremely important since the issue of allocation of such seats meant under the foreigner quota is subject matter of adjudication in Manish Chandra Pathak Vs. University of Delhi and Others, . The said case also dealt with admission to the LL.B course but in a different hostel and it was held that these seats could not have been released to another department and the seats pertaining to the foreigners quota of Law Faculty have to be allocated to the general category of students of the Law Faculty.

As is evident from the above extract, the Court had relied on Manish Chandra Pathak case (supra) to say that diversion of seats as against Foreign Students Quota depriving General merited candidates of the Law Faculty was unjustified. Manish Chandra Pathak case (supra) was in the context of change in the norms brought about by a meeting of the Managing Committee enabling it to divert the seats in respect of Foreign Quota of one course to another in case of inadequate representation of the latter. The Court was of the view that after issuance of Handbook of Information and displaying list of shortlisted candidates, the University could not have turned back and changed the rules to the disadvantage of those who were seeking admission.

In this case, from the above discussion, the Court has to decide if there is any bar, as a matter of law, preventing the diversion of the Foreign quota seats from one course to another. The petitioner strongly argued that such a bar does exist.

Now, a reading of the Handbook of the relevant rules, particularly, Rule 4 would show that there are total 100 seats of which category-wise and Faculty-wise break-up is indicated. The following note appears at the end of Rule 4.1:

** Seats reserved for these categories can be allotted to applicants of the same category from any faculty/subjects if number of applicants under these categories in any other faculty is less than the prescribed seats. Only after exhausting all the applications received by the Hostel under a particular quota the spare seats can be shifted to another quota/category of the same or any other faculty/subject.

The close reading of the above would show that the hostel is empowered to allot seats reserved for the various categories (such as General, SC, Foreign etc). If the number of applicants in any one Faculty is less than the prescribed seats, the embargo is that the hostel has to �exhaust� all applications received by it under a particular quota after which �the spare seats can be shifted to another quota/category of the same or any other faculty/subject.� In this case, the total available seats for General category LL.B. First Year students was 4; records made available show that though 4 seats were filled up, yet the overall 15 seats were not filled.

The above note, in this Court�s opinion should be interpreted to further the broad objective of the main rule, rather than subvert it. While a hostel can have flexibility to fill the overall quota for a category (i.e. such as foreigner, etc.) at the same time, care should be taken that candidates within the same subject category � such as law, arts, science etc. are considered first within the overall limit of their category. Here, the quota for LL.B. students concededly is 23. The chart/table handed over on 05.08.2008 � which persuaded the Court to grant an interim order in this case � showed that only 14 general category candidates were admitted by the hostel; the overall number disclosed (as admitted, from the LLB quota) was 22. Of these, 22, two were foreign students of other faculties. These, have not been justified anywhere, despite two affidavits filed by the hostel. Moreover, the total number of hostel seats shown to have been filled as on 05.08.2008 was 98, not 100. The Delhi University has not furnished any explanation why 22 seats were filled (instead of 23) and 14 (out of 15 general category seats). The University also does not say why the diversion of two foreign quota seats from the law quota was necessitated, and whether it was because other foreign students were deprived, in the other subjects.

The University� affidavit, dated 21.05.2008, concedes that a need to streamline the procedure and practice of admission was felt; a Committee was set up for the purpose. The Committee�s minutes dated 11.04.2008, inter alia reads thus:

It was brought to the notice of the Committee that some of the Hostels/Halls were allotting seats to the students in a ridiculous manner by keeping aside the norms of the University and instead of allotting seats to the students were allotting hostel accommodation to the guests over and above the ambit of quota of students and were charging diverse fees from the guests allotted accommodation in the Hostels/Halls.

After having gone through the documents placed before it and detailed deliberations, the Committee was of the unanimous view that in order to formulate the uniform criteria to be implemented for admission to the Halls/Hostels, the Committee would like to examine the existing norms/criteria adopted by the Halls/Hostels for admission of students, Funding Status, Fee Structure and Intake capacity of Halls/Hostels. As such, the Committee desired that information be collected from the Halls/Hostels to be placed before it at its next meeting.

In view of the above, it is concluded that the University acted in an arbitrary manner, in denying admission to the petitioner. As to what should be the Court�s directions, in the light of the findings recorded, will be examined hereafter.

The court is unpersuaded by the petitioner�s challenge to Rakesh Dagar''s admission to the hostel. Though that candidate did secure admission in the 2006-07 session, and cleared only one examination, yet, he sought fresh admission for the next academic session (2007- 2008), and in that entrance examination, obtained better marks than the petitioner. In these circumstances, his admission to the hostel cannot be termed arbitrary. With regard to Rajesh Mor''s admission to the hostel, this Court cannot adjudge it to be illegal, on the basis of materials brought on record during the hearing. The said Rajesh More, in his application for impleadment, contended having been offered admission, after he applied for that purpose, pursuant to notice by the hostel.

The University�s argument about the petitioner not being eligible for admission, since he did not apply when he could have done it in end of 2008, or in the later phase, in 2009, has to be considered now. Rule 3 clearly states that admission (to the hostel is on year wise basis). This is, of course subject to Rule 5.1, which states that once admission is granted, a student has a right to continue in the hostel for the duration of the course, which too, is spelt out; in the case of LLB, it is 3 years. Yet, Rule 3.2, inter alia, categorically states that:

If a student fails to take re admission within ten days after declaration of his result or the due date, whichever is later, he will be charged Rs. 5/- per day as late admission fee and after the expiry of one month from the due date or date of declaration or results, he will forfeit his right to re-admission and will be evicted.

The eligibility or entitlement of each student, once selected, to continue in the hostel, is, by virtue of Rule 3.2 conditioned upon whether he applies for re-admission; a time limit is prescribed for this purpose. If the student does not apply, he forfeits his admission, and is liable to eviction. The right is, therefore, not a �vested� or unqualified one, as it seems to the petitioner. The petitioner did not apparently, apply for admission, at any time during the second year. The hostel had also stated that he could so apply. His construction of the rule, about unqualified right of those students selected, and allotted a seat cannot be accepted; he relies on his entitlement to the seat and argues inferentially, that had he been allotted the seat, lawfully, he could not have been evicted. While, in the normal circumstances, once a court concludes that a litigant has been wronged, restitution should be the corollary, the fact remains that here, a notice inviting applications from all LLB students was issued; the petitioner consciously risked not applying. An application by him, would also have shown the relative merits of the parties. He was of the view that as a person entitled allotment, his right to continue, in the second year, as a hostel inmate was automatic. That assumption is not borne out by the rules; as a result, the hostel allotted one seat to Rajat Mor. These intervening circumstances, deter the court from granting the relief of direction to allot (in this case, confirm, or regularize) a seat to the petitioner. Resultantly, the relief he seeks cannot be granted.

The above observations however, cannot lead to closure of the proceedings. The University�s opaqueness in revealing why all seats available for LLB candidates were not filled, and why out of them, only 14 (out of 15) were filled by General category candidates, as well as why the two foreign quota vacancies were diverted, when the entire LLB quota had not been exhausted, show that its functioning is arbitrary; there is no concrete material; yet one can infer that guests are allowed in the hostel, which deprives legitimate students who should get seats, their rightful benefit. In these circumstances, even while not confirming the interim order, this Court directs that the petitioner should not be asked to vacate the seat allotted to him, for a period of two weeks, till after his second year LLB examinations. The University shall also pay costs quantified at Rs. 55,000/- to the petitioner, within three weeks from today.

The writ petition is disposed of in the above terms.