IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10482 of 2008 AKSHAT CHAITANYA Versus 1. CHANAKYA NATIONAL LAW University 2. The Vice Chancellor, Chanakya National Law University. 3. The Registrar, Chanakya National Law University. 4. The Convenor, Common Law Admission Test, National Law School, Bangaloe. For the Petitioner : Mr. Alok Anand For the Respondent no. 3 : Mr. vikas Kumar ----------- 6. 13.02.2009 Heard learned counsel for the petitioner and learned counsel for Chanakya National Law University. No one appears on behalf of Respondent no. 4. Notice of the pendency of the present proceeding was directed to be served on it through a private courier. The petitioner has filed a supplementary affidavit on 9.9.2008 showing proof of despatch by Blue Dart Express Ltd. as also the computerized tracking details confirming delivery on 29.8.2008 upon Respondent no. 4. The Chanakya National Law University has also filed an affidavit that intimation of pendency of the present case has been sent by it to Respondent no. 4 by Email on 10.1.2009. Respondent no. 4 is, therefore, now well aware of the present proceeding. It has chosen not to enter appearance to contest or oppose the claims of the petitioner. The Chanakya National Law University is one of the few Law Universities conducting a five year law course which selects and grants admission through a common law admission test conducted by Respondent no. 4. The petitioner appeared at the entrance examination for the five year Session commencing from 2 August, 2008. His all India rank was 1771 and his rank for admission to the Chanakya National Law University was 15 out of 31 candidates in the general category, the petitioner being a general category candidate. The next stage for admission required the petitioner to appear for counselling along with a demand draft of Rs. 81,000/- and Rs. 5,000/- for the purpose of uniform. The deposit for the uniform made by the petitioner was accepted by the Respondents while his demand draft prepared for Rs. 81,000/- was refused. The petitioner was then informed by letter dated 4.7.2008, the call for counselling, that since he had passed his Higher Secondary Examination in compartment, meaning thereby that he had to repeat certain papers, he was not eligible for admission in Chanakya National Law University. Learned counsel for the petitioner submitted that the requirement in the prospectus was that the candidate should have secured aggregate not less than 45% of the total marks in the Higher Secondary School Examination. It is not in controversy that the petitioner fulfilled this requirement. The prospectus inviting applications did not provide for any condition or a limitation that those who had passed the Higher Secondary School Examination in compartment were not eligible for admission. The Respondents cannot subsequently impose any such condition. He relies upon a Bench decision of this Court reported in 2009(1) PLJR 445 (Sangeeta Minki v. The State of Bihar & ors. ) It is submitted that the fact that the petitioner may have reappeared in 3 certain papers at Higher Secondary level was no indication of his academic disqualification when he had shown his outstanding performance at All India Examination. Counter affidavit has been filed on behalf of the Chanakya National Law University. Hearing commenced on 6.8.2008 when urgency of the matter of the classes having been commenced was noticed by the Court while issuing notice to Respondent no. 4. The petition was filed after service of a copy of the writ petition on the Respondent-University on 16.7.2008. Counter affidavit was filed by it three months later on 12.10.2009. Hearing of the case got deferred on more than one occasion to enable Respondent no. 4 to be suitably apprised of the pendency of the matter. This matter was then listed on priority on 11th of February, 2009 when counsel for the University prayed for a pass over to obtain more instructions. It was again heard on 12th when counsel for the University again prayed for a pass over to seek more instructions. Today on the third occasion when the hearing of the matter is taken up, counsel for the University again prays for time on the submission that a supplementary counter affidavit is ready but due to rush at the franking machine counter, affidavit could not be stamped. This Court refrains from making any observation with regard to the conduct of the University. Suffice it to say that in view of the fact that the respondent University has had more 4 than sufficient time to present its case and has filed a detailed counter affidavit and supplementary counter affidavit, this Court does not consider it prudent to adjourn this matter any further as it will delay proceedings further even while classes continue and it may by itself render the relief sought infructuous. The single question for consideration is what was the original qualification prescribed in the prospectus? Did the petitioner fulfill it? If he fulfilled it and was allowed to appear at All India Competitive Examination and displayed his merits irrespective of his standing in the Higher Secondary Examination, can he be denied the right to admission on any subsequent conditions not originally laid down, sought to be invoked by the University.. The original prospectus required a candidate to have 45% aggregate marks in the Higher Secondary Examination. The petitioner admittedly fulfills it. He appeared at the All India competitive examination and passed. He has been placed in all India rank at 1771 and at serial 15 in the State of Bihar in general category. The admission is to be governed by the conditions laid down in the prospectus. Once the Respondents permitted him to appear at the entrance examination, being satisfied of his eligibility and he has passed, the Respondents cannot be permitted to impose some other qualification of eligibility which was not there originally by indicating it in the counselling letter. Any condition incorporated in the prospectus for the 5 session commencing subsequently in 2009 debarring those who passed Higher Secondary in compartment is of no relevance. The Court, in any event, has its reservations for any such condition. In the case of Sangeeta Minki relied upon by learned counsel for the petitioner, the candidate competed in the preliminary test in response to an advertisement and appeared at the conventional written examination. At the stage of interview she was denied consideration as she had failed to produce the necessary certificate from the District Magistrate or the Additional Collector. The petitioner contended that in accordance with the original advertisement she had submitted the necessary certificate from the S.D.O. This court in the relevant extract at paragraph 5 of the judgment held as follows: “ ………Any terms in the interview call letter cannot be at variance with or detract from the conditions of the advertisement so as to absolve the respondents simultaneously visiting the petitioner with adverse consequences. “ There is no challenge by the Respondents to the success of the petitioner in the written examination for reason that he failed, use of unfairmeans etc. nor it is their case that he did not possess 45% marks at the Higher Secondary Examination level. In A.I.R. 1976 Supreme Court 376 (Shri Krishan v. The Kurukshetra University, Kurukshetra) the University sought to withdraw the result of the candidate after he had been permitted to appear at the examination on the ground that since his 6 percentage was short in Part I Law Examination and that he could not insist on being admitted to Part II examination. It was additionally urged that he had failed to produce the permission by the employer for appearing in the evening classes of the Law course. The contention on behalf of the petitioner in the relevant extract of paragraph 6 was noticed as follows : “6………..The last part of this statute clearly shows that the University could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures. But this could be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear. It was, however, submitted by Mr. Nandy, learned counsel for the respondent that the names of the candidates who were short of percentage were displayed on the Notice Board of the College and the appellant was fully aware of the same and yet he did not draw the attention of the University authorities when he applied for admission to appear in LL.B. Part II examination. Thus the appellant was guilty of committing serious fraud and was not entitled to any indulgence from this Court. “ The Supreme Court at paragraph 9 held that a 7 candidate could not be denied admission once he has been permitted to appear at the examination, declared successful and that it was for the University to put his own house in order. Directions were given for publication of the result. In the case before the Supreme Court, the candidature of the petitioner was accepted contrary to the statutory provisions. The present petitioner stands on a much better footing inasmuch as the condition now sought to be invoked to deny admission does not find mention in the original conditions contained in the Brochure. In (2009) 1 SCC 610 (Guru Nanak Dev University v. Sanjay Kumar Katwal & anr.) the Supreme Court was considering the cancellation of admission to the LL.B. Course on grounds of lack of equivalence of qualification for eligibility after admission was granted and classes started. The University contended that the candidate did not possess the necessary qualification, therefore, the admission was bad. Relying upon the case of Sri Krishnan (supra) the Supreme Court even while upholding the policy decision of the Institution on the issue of equivalence set aside the order cancelling the admission since the candidate was granted admission, had started attending classes and had already cleared the first semester examination holding at paragraph 18 & 20 as follows : “18. However, on the peculiar facts of the case, the first respondent is entitled to relief. The first respondent was 8 admitted through a common entrance test process during 2004- 2005. He was permitted to take the first semester examinations by the University. He is not guilty of any suppression or misrepresentation of facts. Apparently, there was some confusion in the appellant University itself as to whether the distance education course attended by the first respondent was the same as the correspondence course which was recognized.” “20. This Court in Shri Krishnan v. Kurukshertra University has observe that before issuing the admission card to a student to appear in Part I Law examination, it was the duty of the university authorities to scrutinize the papers; and equally it was the duty of the Head of the Department of Law before submitting the form to the university to see that it complied with all requirements; and if they did not take care to scrutinize the papers, the candidature for the examinations cannot be cancelled subsequently on the ground of non-fulfilment of requirements.” The contention of University that the eligibility to appear at the entrance examination was confined only to those who cleared the Higher Secondary examination with 45% marks in one go and not through the compartment, is not borne from the prospectus and cannot be subsequently incorporated. The Court, therefore, rejects this objection of the University. The next contention of the University is that the purpose behind holding a common law admission test is to promote uniform standard and improve quality of legal education. 9 This Court fails to understand how a candidate who may have been required to reappear in certain papers at the Higher Secondary level, to fulfill the basic conditions of eligibility of 45%, can be held to be a candidate having no educational standard. This would virtually amount to deriding a young citizen candidate, defeating his morale, rendering him useless as a citizen with no ambitions. It appears that the University is more apprehensive that if it admits a candidate who passed the examination in compartment, the result sheet of the University may be affected inasmuch as the candidate concerned may not secure the marks which the University expects from its candidates to obtain to enable the University to keep its flag flying to claim its exalted status. The method adopted for selection was not unique. Even for the common admission test conducted for admission into the premier management Institutes of the country the minimum qualifying condition is 55% marks in graduation. Candidates who barely manage to obtain this 55% marks come out with flying colours of percentile of 99%, whereas those who have much higher marks in graduation may have even failed to obtain qualifying marks in the entrance examination. The entrance examination is, therefore, merely a process of elimination due to large number of candidates applying as otherwise there was no justification for fixing a minimum pass marks at the Higher Secondary level at 45% by the Respondent University. 10 The stand of the University that this 45% aggregate marks did not mean a total of all the marks including the compartment marks but shall have to be confined to the original examination which the petitioner failed to clear, does not appeal to the Court at all. The statement of the University in paragraph 9 to the effect that “and as such the intellects and skill of the compartmental passed students cannot be compared with those of regular students” is unfortunate and reflective of a closed mind in this modern era of competitiveness with the desire to improve and excel. It derides a person who by labour seeks to rise to greater heights as a human mortal. This Court cannot lose sight of the fact that the petitioner is at the threshold of his life not only his career. The hypertechnicality which the University, a temple of learning, seeks to invoke to frustrate the young citizen disappoints the Court. This Court cannot lose sight of the fact that the petitioner has displayed his skills at All India Competitive examination. If he was a dull student as is sought to be suggested by the Respondent University surely he would have failed at All India Competitive examination where thousands and thousands had appeared along with him. His rank for admission for the Respondent University is 15 out of 30 candidates in the general category. Even here he does not figure as a person of low acumen, but has displayed himself a premier candidate may be compared to those who had cleared Higher secondary in one go. 11 The body conducting the examination, Respondent no. 4, which examined the applications for suitability and eligibility, has chosen not to oppose the writ application. Classes are stated to have commenced in August, 2008 for Ist year Sessions 2008-2009. This consists of two semesters. For the Ist year commencing from August, 2008, the first semester is over. The petitioner came to this Court before the commencement of classes in mid July, 2008. Hearing of this matter, as has been noticed, was delayed on account of the Respondents themselves. The petitioner cannot be visited with adverse consequences for that reason on the submission of the University that classes have commenced, the first session is over and difficulty with regard to the attendance of the petitioner for the Ist semester. That shall amount to giving an advantage to the Respondents for their own lapses. The question that arises now is as to the nature of the relief to be granted moulded in view of the academic loss which the petitioner has already suffered. Learned counsel for the petitioner submits that he has no objection to joining from the next session of 2009-2010 in the first year for the five year course. The petitioner has been wronged for no fault of his. The Court has arrived at the conclusion that the respondents have erred. The petitioner cannot be asked to bear the burden of this error. At stake is his life and careers. For the respondents he is just 12 another faceless student. This Court, therefore, holds that the petitioner shall be admitted to the fresh session of the five year course in the first year commencing from 2009. The wrongs done by the Respondents to the petitioner shall stand remedied. The application stands allowed. AKS/ (Navin Sinha, J.)