1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:09.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR WP(MD)No.9699 of 2011 and MP(MD)No.1 of 2011 Santhoshkumar :Petitioner -Vs- 1)The Secretary to Tamil Nadu Government, Higher Education Department, Secretariat, Chennai. 2)The Registrar, Anna University, Guindy, Chennai. 3)The Vice-Chancellor, The College of Engineering, Guindy, Chennai. (R3 deleted as per the order of SMKJ dated 25.08.2011) 4)The Secretary, Tamil Nadu Common Admission (TANCA) Anna University, Guindy, Chennai. 5)The Registrar, Anna University Tirunelveli, Tirunelveli District. 6)The Principal, Sethu Institute of Technology, Pulloor, Kariyapatti, Virudhunagar District. :Respondents Prayer:Writ petition filed under Article 226 of the Constitution of India, praying for a Writ of Mandamus, directing the fourth respondent to permit the petitioner to participate in the counseling to be conducted for the M.E degree course and to allot a seat in the College of Engineering, Guindy, Anna University, as per the marks secured by the petitioner in the TANCET exam rank list. For petitioner : Mr.M.Thirunavukkarasu For Respondent-1 : Mr.B.Pugalendhi,Spl.Govt.Pleader For Respondent(For R2-R4): Mr.R.Devaraj For Respondent-5 : Mr.J.Ashok For Respondent-6 : Mr.J.Anandakumar ORDER The petitioner has sought for a writ of Mandamus, directing the Secretary, Tamil Nadu Common Admission (TANCA), Anna University, Guindy, Chennai, the 4th respondent herein, to permit him to participate in the counseling to be conducted for M.E. degree course and to allot a seat in the College of Engineering, Guindy, Anna University, as per the marks secured by him in the TANCET exam rank list. 2.According to the petitioner, he completed B.E. Engineering in Electrical and Electronics in Sethu Institute of Technology, Pulloor, Kariyapatti Virudhunagar District, the 6th respondent herein, affiliated to Anna University, Tirunelveli, Tirunelveli District, the 5th respondent herein. Though he had completed the abovesaid course in the year 2011, his mark sheets for semesters I to IV were not issued by the 6th respondent college, stating that there were some errors in printing the name of the college and that certain corrections were to be made by the Registrar, Anna University, Tirunelveli. It is desire of the petitioner to continue his post graduation in Anna University, Chennai, and therefore, appeared in the Tamil Nadu Common Entrance Test, in short TANCET, and secured 51.540 marks In the overall ranking, he was placed at serial No.185 and at No.85 in the Backward Class list respectively, for admission to M.E. Degree course conducted by Anna University. 3.On his application and based on the mark secured in TANCET examination, the petitioner was called for counseling on 22.08.2011. Even prior to that the petitioner had approached the 6th respondent and requested them to issue the original mark sheets for semesters I to IV, but the 6t respondent College has informed him, that the examination section of Anna https://hcservices.ecourts.gov.in/hcservices/ 2 University, Tirunelveli, had replied to them that mark sheets would be despatched only after 26.08.2011. However, the college issued mark sheets for all the eight semesters. But the Registrar, Anna University, Tirunelveli District, has neither issued mark sheets for semesters V to VIII and nor issued the consolidated mark statement, for all the eight semesters and issued the provisional certificate for completing B.E., degree course On 22.08.2011, the petitioner paid the requisite counselling fee at the bank counter situated in Anna University Examination Centre, Guindy, Chennai, and though he had produced the mark sheets issued by the 6th respondent college and also informed the authorities present, the fact that at the time of counselling, the Anna University, Tirunelveli, had not furnished the mark sheets for semesters I to IV or the consolidated mark statement for all the eight semesters, respondents 2 to 4, have failed to accept the same and rejected the petitioner's selection to M.E. Degree course, on the ground that the petitioner did not produce the original mark sheets for semesters I to IV. In the abovesaid circumstances, the petitioner has come forward with the present writ petition, for the relief stated supra. 4.When the matter came up for hearing on 25.08.2011, as the counseling was stated to be under progress and considering the urgency, Mr.Devarajan, learned counsel representing Anna University, Chennai, was directed to be served, on behalf of M/s.Mani Associates for Anna University. He submitted that all the seats have been filled up in M.E. Degree course in Anna University during the first counseling. He further submitted that in the event of any vacancy arising therefrom, a second counseling would be announced shortly. 5.Per contra, Mr.M.Thirunavukkarasu, learned counsel for the petitioner submitted that only due to the fault of Anna University, Tirunelveli, in not issuing the original mark statement/sheets for semesters I to IV, the petitioner could not produce the same during the counseling held on 22.08.2011 and consequently, the petitioner has been deprived of a seat in the College of Engineering, Guindy, Anna University, though he has secured adequate marks and rank in the overall merit list as well as in the list, exclusively prepared for Backward Classes. However, since notice could not be served on the learned counsel representing Anna University, Tirunelveli, learned counsel for the petitioner was permitted to take private notice on respondents 5 and 6. The Registrars of both the Universities Guindy and Tirunelveli respectively, were directed to produce the files pursuant to non issuance of the original mark sheets/statement for semesters I to IV, in B.E. Degree examination. Learned counsel for the petitioner also submitted that after the counseling held on 22.08.2011, the original mark sheets were furnished to the petitioner by the College. Considering the facts and circumstances of the case, a direction was issued by this Court to the effect that, if Anna University, Guindy, Chennai, takes a decision to proceed with filling up of any vacancies in the second counseling, then the petitioner should be provided with an opportunity in the second counseling on the first day itself, against the vacant seats. The matter was listed on 30.08.2011 and on subsequent dates. Learned counsel for the Anna University, Guindy, Chennai, was directed to verify as to whether any seats have fallen vacant, after the first counseling. On instructions, he submitted that though there was no vacancy in Anna University, Guindy, Chennai, some seats are available in other colleges, affiliated to the University. But according to the learned counsel for the petitioner, as per the ranking, the petitioner would have secured a seat in the prestigious Anna University, Chennai, but for the delay in furnishing the original mark statement for semesters I to IV of B.E. Degree examination or consolidated mark sheet for all the semesters, the petitioner was denied admission to M.E. Degree course in Anna University, Guindy, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3 6.Mr.J.Ashok, learned counsel appearing for the Registrar, Anna University, Tirunelveli, Tirunelveli District, the 5th respondent herein, submitted that due to some error in printing the name of the college and for other corrections, mark sheets for semesters I to IV could not be furnished to the petitioner, before the date scheduled for counseling. 7.Mr.J.Anandakumar, learned counsel appearing for Sethu Institute of Technology, Virudhunagar District, the 6th respondent herein, has submitted that despite their request to furnish the mark sheets for the students who had taken up B.E. Degree semester examination 1 to 4, from their college, Anna University, Tirunelveli, has furnished the statement of marks only on 22.08.2011 in the evening. In support of the above contentions, he has placed the Daily Delivery Statement issued by Professional Courier dated 22.08.2011. 8.In addition to the averments made in the supporting affidavit, placing reliance on the judgment of the Supreme Court in Appeal (Civil) 6506 of 2004 dated 05.10.2004 in the case of Dolly Chhanda Vs. Chairman, Jee and others, learned counsel for the petitioner submitted that though it is the general rule that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose, either in the admission brochure or in the application form, as the case may be, and that necessary certificates have to be produced. He further submitted that when the certificates are withheld by Anna University, Tirunelveli, the counterpart of Anna University, Guindy, Chennai, non production of the mark statements, due to the mistake committed by Anna University, Tirunelveli District, the 5th respondent herein, the petitioner should not be deprived of his selection and admission to post graduate degree course in Anna University, Guindy, Chennai, on the basis of his ranking in the overall merit list or list for Backward Class candidates He has also placed reliance on an order of this Court in W.P.No.31954 of 2002 dated 22.10.2002 in the case of P.Ilamparithi Vs. the Secretary Selection Committee for MBBS/BDS Courses, Kilpauk, Chennai. 9.No counter affidavit has been filed by Anna University, Tirunelveli, disputing the delay in furnishing the mark statements. On the other hand, there was a categorical admission through their counsel. 10.Heard the learned counsel for the parties and perused the materials available on record. 11.Perusal of the letter dated 27.10.2009 written by the Deputy Registrar, Anna University, Tirunelveli, addressed to the Principal, Sethu Institute of Technology, Virudhunagar District, shows that Anna University, Tirunelveli, has sent a list of candidates together with 702 numbers of consolidated mark sheets. Subsequently, by letter dated 23.12.2009, the college has returned all the 702 numbers of statement of marks, due to the discrepancy in the name of the college. The college has also enclosed a list of other corrections made in the statement of marks. They have also informed that one of the statements of marks belong to PTR College of Engineering and Technology. Anna University, Tirunelveli, has received the mark sheets. Subsequently, on 04.08.2011, the Principal, Sethu Institute of Technology, Virudhunagar District, has requested the Controller of Examinations, Anna University, Tirunelveli, Tirunelveli District, to send the statement of marks (702 numbers), at the earliest. The letter had been acknowledged on 17.08.2011. The Controller of Examinations, Anna University of Technology, Tirunelveli, has sent the statement of marks of semesters I to IV to the institution. As per the Daily Delivery Statement issued by the Professional Courier, the mark sheets have been received by the 6th respondent on 22.08.2011 and as per the version of the learned counsel for the 6th respondent college, it was received late in the evening on 22.08.2011. By the time, the petitioner has been deprived of a seat in post https://hcservices.ecourts.gov.in/hcservices/ 4 graduate course in Anna University, Guindy, Chennai. On the directions of this Court, the learned counsel for Anna University, Guindy, Chennai, had produced the application submitted by the petitioner for counseling for admission to M.E. Degree course, along with the statement of marks issued by the 6th respondent college. Perusal of the same shows that the petitioner had attended the counseling on 22.08.2011 and that his candidature has not been considered, on the ground of non production of the mark statements for semesters I to IV in B.E. Degree examinations. 12.It is well known that Anna University, Guindy, Chennai, is one of the premier and reputed Universities in the country, where, meritorious students desire to study either Under Graduate or Post Graduate degree courses or do their post Doctoratoral degrees. Earlier, all the engineering colleges were affiliated to one University, namely, Anna University, Guindy, Chennai. But lateron, when many engineering colleges were permitted to be started and approved by All India Council for Technical Education, in short AICTE, New Delhi, for the purpose of affiliation, conduct of examination, issuance of mark sheets and for such other activities connected to the functioning of the University in regulating the affairs of the affiliated colleges, Anna University has been established in Tirunelveli, and other places, for the abovesaid purpose. 13.Sethu Institute of Technology, Virudhunagar District, is located within the territorial jurisdiction of Anna University, Tirunelveli, which is only another unit of the same University, created for their own convenience. For the fault of Anna University, Tirunelveli, in not furnishing the original mark sheets for semesters I to IV of B.E. Degree examinations, or the consolidated mark statement for semesters I to VIII, the petitioner cannot be blamed and denied of a seat in M.E. Degree course in Anna University, Guindy, Chennai, on the basis of his ranking.Having called the petitioner for counseling on the basis of his ranking, Anna University, Guindy, Chennai, could have very well ascertained from their counterlpart in Tirunelveli, as to whether, the delay was caused due to the mistake, on the part of the latter at Tirunelveli, and after ascertaining the correctness of the marks secured and entered in the mark sheets, produced by the petitioner, Anna University, Guindy, Chennai, should have granted admission subject to production of the original mark statements. 14.In Punjab Engineering College Chandigarh through its Principal Vs Sanjay Gulati and Ors. reported in 1983 (3) SCC 517, the Supreme Court held that in matters relating to admission, the authorities charged with a duty of admitting the students to educational institutions must act fairly and objectively. On account of violation of norms set down by rules and regulations, a sense of resentment and frustration is bound to be generated in the mind of those unfortunate young students who are wrongly of purposefully left out. While considering the objections that the seats cannot be correspondingly increased to accommodate the students who were left out, the Supreme Court, at paragraph No.6 of the judgment held as follows:- “It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admission contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which would be caused by increasing the number of seats or that the institution will not be able to cope with additional influx of students. An additional plea available in regard to Medical Colleges is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The https://hcservices.ecourts.gov.in/hcservices/ 5 best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made.” 15.While making the abovesaid observation in the reported case, the Supreme Court also considered a similar question which arose before the Court in State of Kerala v. Kumari T.P.Roshana reported in [1979] 2 SCR 974 where the Court directed the State Government to admit thirty more students Hon'ble Mr.Justice Krishna Iyer, as he then was, observed that “The selection of these 30 students will not be confined to those who have moved this Court or the High Court by way of writ proceedings or appeal. The measure is academic excellence, not litigative persistence. It will be thrown open to the first 30, strictly according to merit measured by marks secured.” 16.In Arti Sapru v. State of Jammu and Kashmir and others, reported in 1981 (2) SCC 484, after allowing the writ petitions of candidates who were wrongly denied admission to Medical Colleges, one of the learned judges of the Supreme Court observed that “the candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers, it is hoped that the State Government will deal sympathetically with their cases so that while effect is given to the judgment of this Court, the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced candidates.” 17.Though the petitioner has sought for a Mandamus, directing the 4t respondent to permit him to participate in the counseling conducted for M.E Degree course and allot a seat in the College of Engineering, Guindy, Anna University, in view of the fact, that all the seats have been reported to be filled up in the said University and that the petitioner has been unjustly deprived of a seat in Anna University, Guindy, Chennai, on the basis of his overall ranking in the Backward Classes list, on account of their fault, it is the Anna University, who has to pay for the lapse and that the injury caused to the petitioner, has to be redressed and in such circumstances, this Court in the interest of justice, is inclined to mould the relief prayed for and direct the respondents 2 to 4 to grant admission to the petitioner to M.E Degree course in Anna University, Guindy, Chennai, by increasing the strength of the seat, in the course opted by the petitioner, otherwise, the academic excellence of the petitioner would go waste. If the University does not accommodate the petitioner, then, it would be nothing but a fait accompli. Like a success in operation, but the patient dies. It is sincerely hoped that the reputed Anna University, Chennai, would act in accommodating the petitioner, realising their mistake. The petitioner shall be provided with a seat in M.E Degree course, within a week from the date of receipt of a copy of this order and the Anna University, Chennai, shall take up the matter with All India Council for Technical Education, New Delhi, or any other authority, for approval or ratification of creation of a seat, if required. 18.In the result, the writ petition is allowed as prayed for. No costs. Consequently, connected M.P. is closed. Sd/- 09/09/2011. This writ Petition having been listed under the Caption “For Being Mentioned” on Monday, the Nineteenth day of September 2011, pursuant to the order of this court dated 9.9.2011, and made herein in the presence of the aforesaid counsel on either side, the court made the following order: Seeking for a clarification, in respect of the directions given by this court to grant admission to the petitioner to M.E. Degree course in Anna https://hcservices.ecourts.gov.in/hcservices/ 6 University, Guindy, Chennai, by increasing the strength of the seat in the course opted by the petitioner, the writ petition has been directed to be listed in the caption “for being mentioned”. 2.Mr.D.Rajendran, learned counsel representing Anna University represented that the University is willing to provide a seat to the petitioner, as per the marks secured by him. He further submitted that in the counselling process, admission are granted on the basis of the marks secured by the candidates in the order of merit, following rule of reservation and as per the option exercised by the candidates. He, therefore, submitted that as a matter of right, the petitioner cannot seek for admission in the course opted by him, dehorse the marks secured by him and the merit list. In the abovesaid circumstances, he seeks for a clarification from this court, enabling Anna University, Guindy, Chennai, to consider providing admission to the petitioner, as the mark secured by him and the availability of the seats in Anna University and in the course opted by the petitioner and other disciplines. 3.Per contra, Mr.Thirunavukkarasu, learned counsel for the petitioner submitted that during counselling, the petitioner has opted for a seat in Power Electronics and Drivers and that he is eligible for admission to M.E Degree course in the above said subject. 4.As rightly contended by the learned counsel for the University, Counselling, done through single window system, is one of the basis of the marks secured by the candidates, arranged in the order of merit, following the rule of reservation and the option for the candidates. At the time of counselling, admission to a particular course can be granted only if a seat, in a particular faculty is available for the marks secured by the candidates, as per the turn. It cannot be granted, as a matter of right to any subject of his choice. Therefore, the directions granted by this court is clarified as “the respondents 2 to 4 are directed to grant admission to the petitioner to M.E. Degree course in anna University, Guindy, Chennai, by increasing the strength of the seat, if required, in the course available at the time of counselling held on 22.08.2011, for the mark of 51.540, secured by the writ petitioner and following rule of reservation”. The remaining portion of the order is directed to be intact. The directions of this court granted in WP(MD)No.9699 of 2011, as clarified by this court today, has to be complied with forthwith. Sd/- Assistant Registrar (Crl.side) /True Copy/ Sub Assistant Registrar To: 1)The Secretary to Tamil Nadu Government, Higher Education Department, Secretariat, Chennai. 2)The Registrar, Anna University,Guindy, Chennai. 3)The Secretary,Tamil Nadu Common Admission (TANCA) Anna University, Guindy, Chennai. 4)The Registrar,Anna University Tirunelveli,Tirunelveli District. +1 CC to Mr.M.Thirunavukkarasu, Advocate (SR.No.30734) +1 CC to Mr.D.Rajendran, Advocate (SR.No.30790) ORDER WP(MD)NO.9699/11 Order Dated:19.09.2011. RP/19.09.2011/6P/7C. https://hcservices.ecourts.gov.in/hcservices/