IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.07.2010 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE B.RAJENDRAN W.A.No.284 of 2010 and M.P.Nos.1 and 2 of 2010 1.Central Polytechnic, Tharamani, Chennai rep. by its Principal. 2.The Commissioner, Director of Technical Education, Chennai. 3.The Secretary, Department of Higher Education, Secretariat, Chennai – 9. .. Appellants Vs. N.S.Makesh Babu .. Respondent Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the Order of the learned single Judge made in W.P.No.15703 of 2009 dated 23.12.2009. Petition under Article 226 of the Constitution of India to issue a writ of mandamus, directing the first respondent to send new "Letter for counselling" to the petitioner and select him under the merit list of 1st July 2009 within a time frame fixed by this Court. For appellants .. Ms.Dakshayani Reddy, Govt. Advocate (Education) For respondent .. Mr.D.Govindarajalu JUDGMENT R.BANUMATHI, J. Feeling aggrieved by allowing of the Writ Petition in W.P.No.15703 of 2009 dated 23.12.2009 and directing the appellants to select the respondent in the merit list for the academic year 2009- 2010, appellants have preferred this appeal. 2.Brief facts are that 1st appellant – Central Polytechnic at Tharamani advertised in a newspaper for the Diploma in Mechanical Engineering (Part-time) during the year 2009-2010. Respondent being eligible for the said course has applied for the course by sending application. According to respondent, from his friend Nagaraj, he https://hcservices.ecourts.gov.in/hcservices/ came to know that he had gone for counselling on 01.07.2009 itself and thereafter, the respondent contacted the college officials in person. Further case of respondent is that the Head of Department in the Institution informed him that the letter for counselling was already sent to him by 'certificate of posting' and his name was shown at seventh position in the waiting list and fifteenth position in the merit list. Grievance of the respondent is that as against sub-clause (v) of Clause 6:3 of the instruction, Register Number of the selected candidates will be published in the Notice Board of the Polytechnic concerned and the intimation of selection will be sent to the selected candidates by the Principal of the Polytechnic concerned under 'Registered Post with Acknowledgement Due'. But the 1st appellant had chosen to issue letter for counselling not by 'registered post' as per sub-clause (v) of clause 6:3, but by 'certificate of posting'. As a result of which, respondent has lost his chance of getting admission. According to the respondent, certificate of posting alleged by the 1st appellant has not reached him and hence the respondent filed writ petition seeking writ of mandamus directing the 1st appellant to send new 'letter for counselling' and select him under the merit list of 1st July, 2009 within the time frame fixed by the Court. 3.Learned single Judge held that when there is specific mode of communication specified in sub-clause (v) of Clause 6:3 of the instruction to be followed by the 1st appellant, the same has not been followed. If the communication was sent by RPAD, question of non- receipt of letter for counselling would not have arisen. As a result, respondent would not have wasted his time in pursuing his Diploma in Mechanical Engineering (part-time) and the learned single Judge directed the 1st respondent to send a new letter for counselling and select the respondent under the merit list on 1st July, 2009. 4.Challenging the impugned order of the learned single Judge, Ms.Dakshayani Reddy, learned Government Advocate submitted that respondent was in 69th rank in the merit list and not in 15th rank as alleged by the respondent. Contention of appellants is that all the details were displayed in the Notice Board and to facilitate further, the Principal has taken pain of intimating the applicants through post. Main contention of appellants is that the admission process was already completed which was also approved by the Director of Technical Education and the candidates who were admitted on 1st July, 2009 have completed their first semester of study and first semester examination was also held in November, 2009 and while so, learned single Judge was not right in directing the appellants to admit the respondent in 2009-2010 batch. Learned Government Advocate further contended that the learned single Judge has not appreciated the criteria for admission to the next semester/year and to go to the next semester/year, the candidate should have appeared for the Board's examination atleast in a single paper of current semester/year of study and without which the candidates shall not be permitted to continue their studies and in the light of Run-through system introduced, respondent cannot be admitted for the academic year 2009-2010. 5.We have heard Mr.Govindarajalu, learned counsel appearing for the respondent. https://hcservices.ecourts.gov.in/hcservices/ 6.The facts are not in dispute. As pointed out by the learned single Judge, appellants have not produced any materials to show that as contemplated under sub-clause (v) of Clause 6:3, intimation of selection was sent under RPAD. The point falling for consideration is after the academic year 2009-2010 is over whether the order of learned single Judge could be implemented. 7.The learned single Judge passed the order in December, 2009 directing the appellants to admit the respondent for the academic year 2009-2010. By that time the order was passed in the writ petition, first semester was already over in November, 2009. Run- through system had been introduced for Diploma/Post Diploma Courses from the year 1990 in which the students are being permitted to continue their studies in the next higher semester/year even if they do not pass in the lower semester/year examinations. However, a student with enough attendance who registered himself/herself for the Board's Examination and received the hall ticket from the Chairman's office has to necessarily appear for the Board's Examination atleast in one paper (either theory or practical) of their concerned regular semester/year. If he/she does not appear for atleast in one single paper (either theory or practical), he/she will be considered as discontinued candidate. Such candidates have to be readmitted in the same semester/year in the next academic year and satisfy all the prescribed requirements with respect to attendance, payment of fees etc., to become eligible to write the Board's Examinations. In any case, a candidate will not be permitted to appear afresh for the examinations of two semesters/years in the same sitting. The respondent having been directed to be admitted by the order of learned single Judge passed in December, 2009, evidently, cannot be taken as a candidate for the academic year 2009-2010 for which the semester/year was already over. 8.From the submissions of learned Government Advocate, it also comes to be known that since the respondent did not attend the counselling on 01.07.2009, one K.Saravanan, the candidate who was in the waiting list of B.C. - 8th rank was selected in the vacancy and the said K.Saravanan had also joined the course and was not impleaded in the writ petition. In so far as admission of respondent for the academic year 2009-2010, since right of K.Saravanan had intervened, in the absence of impleading the said K.Saravanan, respondent cannot be ordered to be admitted in the same academic year 2009-2010 for Diploma in Mechanical Engineering (part-time). 9. Without prejudice to the contentions raised in the Appeal, the learned Government Advocate has submitted that respondent could be admitted in the same course – Diploma in Mechanical Engineering (part-time) in the next academic year 2010-2011. Learned counsel for the respondent also submitted that the respondent has already applied for the academic year 2010-2011 vide Application No.4601. Since respondent had also applied for the academic year 2010-2011, appellants are directed to admit the respondent in the academic year 2010-2011 for Diploma in Mechanical Engineering (part-time). https://hcservices.ecourts.gov.in/hcservices/ 10.The writ appeal stands disposed of directing the appellants to admit the respondent (N.S.Makesh Babu) in the same Course - Diploma in Mechanical Engineering (part-time) in the academic year 2010-2011. consequently, M.P.Nos.1 and 2 of 2010 are closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar bbr/mmi/usk To. 1.The Principal Central Polytechnic, Tharamani. 2.The Commissioner, Director of Technical Education, Chennai. 3.The Secretary, Department of Higher Education, Secretariat, Chennai – 9. + 1 CC to Mr.D.Govindarajalu,Advocate,SR.47600 + 1 CC to Government Pleader,SR.47588 W.A.No.284 of 2010 KLT(CO) EM/5.7.10 https://hcservices.ecourts.gov.in/hcservices/