Arnab Nayak vs Odisha University of Agriculture & Technology and Others

Dr. Durga Prasanna Choudhury, J.—Challenge has been made to the illegal action of the Odisha University of Agriculture & Technology (hereinafter called "OUAT") refusing admission of the petitioner in B.Tech Engineering Course.

FACTS:

The brief details of the case of the petitioner is that the petitioner successfully completed +2 Science Examination conducted by the Council of Higher Secondary Education, Odisha by securing 73% marks. In order to prosecute higher studies the petitioner applied for taking admission in B.Tech Agriculture Engineering under OUAT. The entire criteria for admission into such course has been prescribed in the prospectus for the year 2015-16. In the prospectus it has been prescribed that the sport certificate in respect of sportsman participating in the games recognized and identified by the Director of Sports shall be eligible for consideration to get weightage of 10% marks. It is also prescribed that the certificate of participation in the games and sports issued by the Director of Sports and Youth Services is eligible for getting weightage marks for admission. It is further stated that petitioner has represented the State of Odisha in the 59th National Games, 2013-14 for Badminton game for Boys under the age of 19. The said championship was conducted by School Games of Federation of India, duly recognized by Ministry of Youth Affairs and Sports, Government of India and Indian Olympic Association.

It is also stated by the petitioner that the Council of Higher secondary Education has also certified about participation of the petitioner in the National Level Championship vide Annexure-4. The Director of Secondary Education shall be the authority to countersign the sport certificate for school games vide notification issued by the Government of Odisha in Sports and Youth Services department in 2003. Petitioner has submitted the application along with sport certificate and accordingly OUAT has issued rank card to the petitioner. After allowing the weightatge mark, on 29.9.2015 when the counseling was conducted in the auditorium of OUAT, Bhubaneswar the petitioner produced all the certificates. But the Counseling did not accept the sport certificate and accordingly refused admission to the petitioner. It is alleged inter alia that the said refusal to admission by OUAT after giving weightage of mark is wholly contrary to the law and Government resolutions. So finding no other way, the petitioner filed the writ application to direct the opp. Parties to accept the sport certificate and consequently give admission to the petitioner into B.Tech Engineering Course.

Opp. Parties 1 to 3 filed counter affidavit refuting the allegations made in the writ application. They admit about the under Graduate prospectus vide Annexure-2 and they also admit that 10% weightage of mark is also allowed for the sports if certificate has been issued by the Director, Sports and Youth Services Department, Government of Odisha. The opp. Parties also admit that 10% extra weightage in sports is allowed to the petitioner subject to production of original certificate issued by the Director of Sports and Youth Services, Government of Odisha at the time of counseling. But the petitioner produced the certificate of participation issued by the School Games Federation of India which was countersigned only by the Assistant Director, Directorate of Secondary Education on the side of the said certificate, which was not in accordance with the prospectus (Annexure-2) issued by the opp. Parties. It is also stated that the certificate does not disclose representation of the petitioner on behalf of the State on National Level, but participation of petitioner in 59th National School Games. For this reason participation of the petitioner was not considered and consequently refused admission to the petitioner. Moreover, it is averred that when the Director of Sports and Youth Services is the countersigning authority, the certificate for the academic year 2015-16 of petitioner bearing no signature of the Director of Sports and Youth Services was not accepted. So the opp. Parties submit that the petitioner was not eligible to take admission.

SUBMISSION

Learned counsel for the petitioner submitted that the action taken by the petitioner is illegal, arbitrary and unjust by refusing admission to the petitioner. According to him the Under Graduate Course Programme issued vide Annexure-2 at paragraph 4.3 clearly spells out that the candidate who has represented the State in any sport events at All India Level will get 10% as score weightage. He further stated that there is clear provision in the prospectus that a student desirous of availing such concession either in games or sports or other extra curriculum, must have achieved the detonation at the +2 level. Moreover, the students participating in the games and sports events duly recognized and notified by the Director of Sports for such performance shall be eligible for the consideration to get weightage. He further submitted that in spite of the certificate and rank card issued by the OUAT in favour of the petitioner he has been illegally declined admission by the opp. Parties. He further stated that the notification issued by the Government of Odisha in Sport and Youth Services Department vide Annexure-5 clearly shows that the Director of Secondary Education who is the nodal sponsor will after verification countersigned the certificate issued by the School Game Federation of different Schools/Teams sponsored by them and the Assistant Director being delegated by the Director to countersign, has countersigned the certificate of participation. So, he submitted that there is no fault lies with the petitioner in producing proper certificate for getting weightage. He submitted that the future of the petitioner is at stake when he is refused admission in the B.Tech course. Hence he prayed to allow the writ application and direct the opp. Parties to give admission to the petitioner.

Learned counsel for the opp. Parties submitted that on the application along with the copy of certificate of games submitted by the petitioner he was issued with a rank card but on verification of the certificate it was not found to be the document issued in accordance with paragraph 4.3 of the prospectus of OUAT issued for the year 2015-16. According to him there is nothing found from the prospectus that the certificate will be countersigned by the Director of Secondary Education or his subordinates, but strictly requires countersignature by the Director of Sports. So, he submits that rightly the admission to the petitioner has been refused by the authorities as the same was not in accordance with the prospectus issued by the OUAT. He also submitted that some sample copies of the certificates have been submitted by other candidates where the Director of Sports has issued the certificates for participation to those candidates. On the other hand, he submitted that the action of the opp. Parties being in consonance with law and the prospectus issued, there is no merit in the writ application and it should be dismissed. He further submitted that as the writ application has been filed after the admission of the students to B.Tech course was over, there is no cause of action survived for consideration in this writ application, for which it is also liable to be dismissed.

POINTS FOR DETERMINATION

(I) The crucial point for determination is as to whether the certificate of participation submitted by the petitioner is valid and proper in accordance with law and the refusal of the same by the opp. Parties is arbitrary, illegal and unjust?

(II) Whether the petitioner is entitled to any relief as asked for?

POINT No. I

It is undisputed that the petitioner has passed +2 Science examination by securing 73% marks. It is also admitted that the petitioner has participated in the 59th National School Games 2013-14 for the event of Badminton Boys vide Annexure-3 and the same has been countersigned by the Assistant Director of Directorate of Secondary Education, Odisha, Bhubaneswar. It is also not disputed that OUAT has issued the prospectus containing Clause 4.3, whether extra weightage be given for admission to B.Tech course. It is also undisputed fact that vide Annexure-6 the petitioner has secured rank 760 and he was asked to appear in the counseling on 29.7.2015. Thus, it is clear that after having received rank card the petitioner was called to the counseling held on 29.7.2015.

It is also admitted by both the parties that the Government of Odisha, Youth Services department has issued guidelines for grant of weightage for sports persons for admission into an educational/technical institution vide Annexure-5. For better appreciation the same is placed below:--

"1. The concerned associations in the capacity of sponsoring agency of State contingent/individuals to National/International Tournaments must furnish the information including the list of players for such participation to Director, Sports and Youth Services, before sponsoring the teams/individuals for such participation. This should be the authentic source of information at the time of verification and countersignature by the Director, Sports & Youth Services. Information furnished later by Associations/Institutions in this regard will not be taken into consideration.

The Director, Sports & Youth Services, will not countersign the certificates issued by different Sports Associations/Institutions in respect Games and Sports where open tournaments are conducted and which come under the purview of School Games Federation.

The Director, Secondary Education who is the nodal sponsor will, after proper examination and verification, countersign the participation certificates issued by the School Games Federation for different Schools/State Teams sponsored by them."

From the aforesaid notification it is clear that the Director of Sports and Youth Services will countersign the document where the participants have participated in National/International Tournaments. According to sub-clause (2), the Director of Sports will not countersign the certificate issued for the games and sports coming under the purview of School Games Federation. Sub-clause (3) clearly shows that the Director of Secondary Education is the competent person to countersign the participation certificate issued by the School Game Federation for different schools/State teams sponsored by them. The petitioner produced the copy of his certificate of participation vide Annexure-3. It shows that the petitioner has participated in 59th National School Games, 2013-14 in the Badminton game for Boys under 19 years held at Agra (U.P.) from 26.4.2014 to 30.4.2014. At that time he was studying in Class-XII. Such certificate has also been countersigned by the Assistant Director (Physical Education) of Directorate of Secondary Education, Odisha, Bhubaneswar on 29.6.2015. So the certificate issued vide Annexure-3 has been countersigned duly by the Assist ant Director, who is the subordinate to the Director of Secondary Education as the said document cannot be countersigned by the Director of Sports as submitted by the learned counsel for the petitioner.

The prospectus for Common Entrance Examination and Admission into Under Graduate Programme, 2015-16 vide Annexure-2 states about weightage to academic career and Entrance Examination. Clause 4.3 reads as hereunder:--

"Clause 4.3. Candidates with outstanding records in extra curricular activities as detailed below will be given extra weightage over the score computed from career marks and marks secured in the Entrance Examination. The following percentage of marks under different extra curricular activities of the students will be added to the computed score of the Academic Career and Entrance Examination to arrive at the final score.

N.B.:

(a) The students participating in games and sports event duly recognized and notified by the Director of Sports for such purpose shall be eligible for the consideration to get the weightage.

(b) The students will submit a separate certificate on the participation in the games/sports, issued by the Director of Sports & Youth Services for taking the advantage of the weightage in marks for admission.

(c) A student desirous of availing such concessions either in Games and Sports or in other extra curricular activities must have achieved the distinction at the +2 level."

From the aforesaid provisions it appears that the candidates who have represented the State in any event at All India Level will be given 10% mark weightage. Moreover, the candid ate has to submit the certificate of participation in the games and sports issued by the Director of Sports and Youth Services for taking admission. Also it has been mentioned in Clause-C at the foot note of Clause 4.3 that the students desirous availing concession either in games and sports or any other extra curriculum, must have achieved the distinction at the +2 level. Since the School Games at National Level is also recognized by Clause 4.3 it should be guided by the Circular issued by the Director of Sports vide Annexure-5. When the certificate of participation in the school games cannot be countersigned by the Director of Sports but can be countersigned by the Director of Secondary Education, the prospectus vide Annexure-2 cannot be read in isolation of Annexure-5 which is the resolution of the Government of Odisha in Sports and Youth Services Department. Opp. Parties admit in their counter affidavit about such circular vide Annexure-5.

The opp. Parties contended that even if the National School Games Federation is a recognized institution, but the petitioner has represented in +2 level but not represented for the State duly selected by the Director of Sports, for which such certificate cannot be taken as a certificate of participation in National Level. When the School Games Federation of India has organized the National School Games for the Badminton game and in that the petitioner has participated vide Annexure-3, it cannot be said that the petitioner has not participated in National Level Games and Sports. Not only this but also the petitioner has produced the certificate issued by the Council of Higher Secondary Education, Odisha vide Annexure-8. It shows that the petitioner has represented the Odisha in 59th National School Games in Badminton Boys in Agra from 26.4.2014 to 30.4.2014. When the Council of Higher Secondary Education has supported Annexure-3 i.e. certificate of participation, it is not conceived as to how it is not National Level School Game. When the certificate of participation cannot be countersigned by the Director of Sports in case of the School Games vide Annexure-5 (notification of the Government), the contention of the opp. Parties that the certificate of participation vide Annexure-1 produced by the petitioner is not a document of recognition, is untenable.

As the Director of Sports has no role to countersign the certificate of participation for National School Games and Sports as discussed above, the Director of Sports has no role to notify the games and sports for consideration to give weightage at the time of admission. When there is Government resolution dated 21.11.2003 vide Annexure-5 specifying that the Director of Sports will not countersign the games and sports which comes within the purview of School Games Federation, the prospectus vide Annexure-2 containing such clause 4.3 to the effect that the students participating in games and sports events duly recognized and notified by the Director of Sports only will be considered for weightage appears to be non-application of mind by the authorities, because the Government of Odisha since 2003 has already ousted the jurisdiction of the Director of Sports in dealing with the certificate for school games and sports. So the question of issuance of such certificate of school games and sports by him is arbitrary and not in consonance with the Government instructions. It is well necessary for the opp. Parties to take note of the up to date circular of the Government and then prepare the prospectus by assigning the job of countersigning the National Level Certificate in school games by Director of Secondary Education.

Since the certificate has been issued in accordance with the Government instruction and such certificate of participation duly issued by the Directorate of the Secondary Education being countersigned by the Assistant Director concerned, the petitioner has no fault at all in producing such legal and proper certificate. The prospectus having not taken note of the latest Government instruction cannot be taken into consideration in the eye of law to deny the right of the petitioner to take admission. On the other hand we are of the considered view that the petitioner is eligible for obtaining weightage for the sports because of his participation in the National School Games and Sports duly certified by the Director of Secondary Education. Point No. I is answered accordingly.

POINT NO.II:

The petitioner has prayed to direct the opp. Parties to accept the sports certificate of the petitioner and after granting weightage mark should allow him for admission as well as counseling. We have already observed in the preceding paragraph that in spite of petitioner''s valid certificate of sport and for faulty prospectus the petitioner was denied the right of entitlement for admission. On the other hand, we have already observed that the petitioner has no fault for not getting admission into the concerned course even if he has got rank and called to the counseling. Not only this, but also it appears that he has successfully completed +2 Science Examination with 73% of marks. No doubt he has got merit to get a seat in the course applied for by the petitioner, but due to misinterpretation by the opp. Parties the petitioner failed to get admission.

Now the question arises whether the petitioner is entitled to get admission even if he has no fault and the opp. Parties are in fault because the cutoff date of admission being 31.7.2015 has already expired. Learned counsel for the petitioner by placing reliance in the decision Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, and also another decision in Chandigarh Administration Vs. Jasmine Kaur, , submitted that when the petitioner has no fault, but the cutoff date for admission in MBBS course as has been fixed by Hon''ble Apex Court has been elapsed, Court should take positive view so that the future of the petitioner will not be affected for no fault of the student. Learned counsel form the opp. Parties submitted that the decisions are discernible in the instant case.

In the case of Asha (supra) the petitioner was denied admission in Medical Course in the Pandit B.D. Sharma University of Health Sciences and others even if the petitioner was declared successful in the Entrance Examination having secured 832 marks. Since she did not get seat in MBBS in spite of getting rank, she took admission in BDS course for the faulty procedure of the opp. Parties. So she challenged the inaction of the opp. Parties. In that case the Hon''ble Court was pleased to observe that the petitioner was denied admission illegally, but by the time the writ petition was disposed of the dead line for 30th September of that academic year as decided by Hon''ble Apex Court in the case of Priya Gupta Vs. State of Chhatishgarh and Others, has been over. It was decided in Asha''s case that in the case of merit of the case the concerned rule of dead line for admission should be taken to exception to some extent and accordingly the Hon''ble Supreme Court in the case directed the opp. Parties to grant admission to the MBBS course in the current academic year subject to condition that she would pursue the MBBS course right from the beginning.

In the case of Chandigarh Administration (supra), Their Lordships after analyzing the case of Rajib Kapoor and others v. State of Haryana and others (2009) SCC 115 , Ms. Neelu Arora and Another Vs. Union of India (UOI) and Others, and also the case of Asha (supra), were pleased to observe as follows:--

"(1) Since the contesting Respondent pursued her B.D.S. course till this date though she has secured her admission pursuant to the direction of the Division Bench to M.B.B.S. course in the year 2014-15 and as we have found no justification for the direction issued by the Division bench which we are setting aside, we direct the Chandigarh Administration and the Government Medical College to restore the contesting Respondent''s admission to the B.D.S. course of the academic year 2013-14 and allow her to pursue the said course, if she so chooses.

(2) The admission granted to the contesting Respondent in the M.B.B.S. course of 2014-15 under the NRI category stands cancelled and the selection of candidates who applied for the said course in the said category in the academic year 2014-15 shall be finalized by the Chandigarh Administration and the Government Medical College and on that basis proceed with the admission as per the scheduled."

Their Lordships were of the view that even if the respondent has no fault, but for not coming to Court in appropriate time, the relief asked for cannot be granted, particularly with the view that the right of other meritorious students already have taken admission cannot be deprived of their education. On the other hand Their Lordships did not accede to the request of the respondent and allowed petitioner to pursue in BDS course instead of MBBS course.

The decision in Asha''s case is little discernible of the Chandigarh Administration although both the decisions relate to admission into MBBS course. No doubt in Priya Gupta''s case (supra) Their Lordships have made the cutoff date for admission into 1st year MBBS course and their date is 30th September in every academic year. In Asha''s case the case of Priya Gupta was followed, but in view of the fact that challenge has been made to the admission in Asha''s case at the time of second counseling and the fact that there is no fault with the petitioner, Their Lordships considered the case of the petitioner as a rarest of rare cases or exceptional circumstance where the Court may have to mould the relief and make exception to cutoff date of 30th September, for which the petitioner in Asha''s case was allowed to get entry to the MBBS course by increasing one seat even if the cutoff date was over by the time of judgment. In the case of Chandigarh Administration and others (supra) Their Lordships observed that the impugned judgment of the Division Bench of Punjab & Haryana High Court was rendered in allowing the writ petition by asking the Chandigarh Administration to create a seat for the petitioner for her admission to the MBBS course was not correct. Their Lordships observed that the case of the respondent was not that strong because she was in the second category of NRI quota although she claimed the first category NRI quota, but was not eligible. Further Their Lordships found that the respondent was not diligent in pursuing her right. However, Their Lordships have been pleased to observe the principles in paragraph-30 of the judgment in the following manner:--

"(1) The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted.

(2) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate i.e., the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or here is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time scheduled prescribed, it would be completely just and fair to provide exceptional reliefs to the candidate under such circumstance alone.

(3) If a candidate is not selected during a particular academic year due to the fault of the Institutions/Authorities and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time scheduled, then under such circumstances, the candidate should not be victimised for no fault of his/her and the Court may consider grant of appropriate compensation to offset the loss caused, if any.

(4) When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the Courts cannot grant any relief to the candidate in the form of securing an admission.

(5) If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-selection, he/she cannot subsequently turn around and contend that the process of selection was unfair.

(6) If it is found that the candidate acquiesces or waives his/her right to claim relief before the Court promptly, then in such cases, the legal maxim vigilantibus non dormientibus aequitas subvenit, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate.

(7) No relief can be granted even though the prospectus is declared illegal or invalid if the same is not challenged promptly. Once the candidate is aware that he/she does not fulfil the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility.

(8) There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year i.e., carry forward of seats cannot be permitted how much ever meritorious a candidate is and deserved admission. In such circumstances, the Courts cannot grant any relief to the candidate but it is up to the candidate to re-apply next academic year.

(9) There cannot be at any point of time a direction given either by the Court or the Board to increase the number of seats which is exclusively in the realm of the Medical Council of India.

(10) Each of these above mentioned principles should be applied based on the unique and distinguishable facts and circumstances of each case and no two cases can be held to be identical."

Culling out the principles as embodied in the above two decisions of the Hon''ble Apex Court we observe in the instant case that the petitioner was issued with the rank card and called to the counseling on 29.7.2015. When he was denied admission to the course he approached this court on 30.7.2015 although the cutoff date for admission was 31.7.2015. It has already been held in the above paragraphs that the petitioner has no fault to produce the proper sports certificates obtained by him. When he has no fault and knocked the door of the court as per the principles as propounded in the Asha''s case (supra) and Chandigarh Administration case (supra) he is entitled to the relief even if the admission on 31.7.2015 is over. We further observe that the petitioner is entitled to the reliefs asked for. Point No. II is answered accordingly.

CONCLUSION

In view of the observation made above, we are of the considered view that the opp. parties have illegally denied admission to the petitioner to the B. Tech Agriculture Engineering Course because of the fault lies with the opp. parties in issuing prospectus which is not in consonance with law and Government instruction. We have also observed in the aforesaid paragraph that the petitioner is entitled to the admission and counseling having fulfilled the criteria as the sports certificate produced was valid and proper. We have already observed that the petitioner has no fault, but for the illegal procedure of the opp. parties he was refused admission. He has approached this court diligently and without any delay. He has approached this court for admission in the current academic year. In such circumstances, as an exceptional case we hereby direct the opp. parties to create one seat more in the B.Tech Agriculture Engineering Course within a period of one week and give admission to the petitioner to the said course within a period of two weeks from the date of increasing seat in 1st year B.Tech course as one time measure after necessary counseling. The opp. parties are directed to file compliance affidavit thereafter preferably on 18.02.2016.

The writ petition of disposed of accordingly.

I. Mahanty, J.

I Agree.