THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 17774 OF 2010 O R D E R: This Writ Petition raises substantial questions of far reaching importance regulating the admissions to the prestigious Indian Institutes of Technology and related colleges. The writ petitioner hailing from the State of Andhra Pradesh appeared for the II year Intermediate examinations conducted in the month of March 2009 by the Board of Intermediate Education, Andhra Pradesh. She prosecuted the said course with Mathematics, Physics and Chemistry as optional subjects of study. She has secured an overall percentage of 87. With a view to secure excellence in study of Engineering and Technology subjects, several institutions, called as Indian Institutes of Technology, came to be established at various places across the breadth and length of the country. As of now, there are 15 such institutions, which are popularly known as IITs. There are also two other institutions of equal standing and stature, the admission process of which institutions along with IITs is also sought to be regulated through Joint Entrance Examination (for brevity, “JEE”). The writ petitioner appeared at the JEE-2010 and secured All India rank of 6684. The qualified candidates are all required to fill in a form online indicating their choice of courses of study offered by the participating institutions at the said exam. The online application will be processed and seat allotments would be intimated to the respective candidates. The writ petitioner has been communicated on 29.06.2010 of her admission to the five year Integrated M.Sc. course in Chemistry at the Indian School of Mining, Dhanbad, Jharkhand State. The writ petitioner has accepted the said seat and accordingly, paid up the requisite fee of Rs.40,000/- by way of a demand draft drawn in favour of Chairman, JEE-IIT Madras. On 07.07.2010, another notification was displayed on the website, stating that due to certain errors that crept into the process, the notification, dated 29.06.2010 was faulty. The earlier admission granted in Integrated M.Sc. Chemistry course to the petitioner has been shown as cancelled and now, the petitioner was shown as allocated the five year Integrated course of M.Sc. in Mathematics Computing, at the same Indian School of Mining, Dhanbad. As per this notification, the candidates were required to report on or before 24.07.2010 before the Director of the institute and accordingly, the writ petitioner has reported before the Director. All students, who have appeared for the JEE, have been furnished a brochure containing the detailed procedure of admissions. It was notified that the candidates, who qualify with a good All India rank, can be allotted courses depending upon their ranking and the preference for the courses of study exercised during counselling. Every candidate is required to list out the preferential order of courses and institutions. Based upon the availability of the first choice, every candidate would be allotted a seat accordingly. If the first choice seats are not available, rest of the choices, in strict order of preference exercised by the candidate, are taken up for consideration. Thus, the next best choice or the highest amongst the choices would be taken into account for allotment and the rest of the choices are ignored. It was made abundantly clear that on the date of counselling, the duly filled-in choice sheets are collected from the candidates, but seat allocation will not be undertaken on that day, and that exercise would be carried out centrally. It was made clear to the candidates that the choice exercised once is final and it will not be capable of being altered later on. In paragraph 1.4 of the brochure, the detailed seat allotment procedure has been provided for. It was declared that the allotment of seats will be notified on the JEE website on 28.06.2010 and the candidates are required to pay registration fee of Rs.40,000/- or Rs.20,000/-, as is applicable to reserved segments, as token confirmation of the acceptance of the seat allocated. At the time of submitting this registration fee, each candidate would be asked to exercise the following three different options. They are, “ Option 1: I do not want to participate in the second allotment as I am satisfied with the course allotted to me in the first allotment itself; Option 2: I may be considered for allotment to any other course in my choice sheet in order of priority only to the same institute where I have got my first allotment; Option 3: I may be considered for any course in my choice sheet in order of priority across any of the institutes.” From the above, it is clear that if the candidate is otherwise satisfied about the allotment of seat in a particular course of study in a particular institution, he/she has to exercise Option 1. Such candidates will not be required or permitted to participate in the further process of seat allotments. Option 2 requires consideration of the candidature only at the same institute where the allotment of seat was already accorded, into any other branch of study as per the order of preference exercised. In other words, the candidate confines consideration against the available seats in other courses within the same institute. Option 3 is more or less a broad based one, in the sense that the candidate requires to be considered against the rest of the courses offered and in all the institutions as per the preference exercised originally. Based upon the availability of seats and the preferential choice of the candidates, the 2nd round of allotments will be made and published on the JEE website on 16.07.2010. Once this process is complete, the candidates are required to report to the institute concerned to which they have been allocated and complete the rest of the formalities, including payment of the fee. There is no 3rd round of admission process that will be undertaken. The writ petitioner has exercised her option at the time when she has been granted admission in the 1st round of counselling itself. However, the grievance of the writ petitioner is that because of an error committed in making allotment at the first instance, the initial allotment of her seat in the Integrated M.Sc. Chemistry course has been cancelled and she has been granted admission in the five year Integrated M.Sc. Maths computing course. Therefore, the specific allocation of seat made in her favour on 08.07.2010, should be treated as the 1st round of counselling and it shall not be treated as a result of the 2nd second round of counseling, so that she can stake a claim for admission against vacant seats. If the admission granted to the writ petitioner on 08.07.2010 in five year Integrated M.Sc. Maths Computing course is to be treated properly and correctly as the 1st round of counselling, then the writ petitioner can keep alive her further choice of not only the institution but also the course, which would require consideration after 08.07.2010. Since the respondents have treated the allocation made in her favour on July 16,2010 as the 2nd round of counselling, they have denied her the right to stake a claim for admission against several institutions and courses, notwithstanding the availability of seats there. Hence, the writ petitioner has prayed for appropriate relief in this Writ Petition. The respondents have filed a detailed counter affidavit, dated 23.08.2010. It was pointed out at page 5 of the said affidavit by the respondents that while processing the 1st round of seat allotment, inadvertently, a set of students, who had participated in the aptitude test for B.Arch. course but failed to qualify in the same, were considered to have passed the aptitude test and they were considered for admission to B.Arch. as well as Bachelors course in Designing. On that basis, the 1st round of allotment of seats has been announced on 29.06.2010 and immediately, upon identifying the error that crept in, an emergency meeting was convened on 03.07.2010, where it was decided to take corrective measures. Hence, the communication dated 08.07.2010 has been sent up to the writ petitioner, informing her of the cancellation of her admission into Integrated M.Sc. Chemistry course. As soon as the 2nd round of counselling has been taken up, 41 of the 52 candidates, whose earlier admissions were cancelled, have been given orders of fresh allotments to various other courses. The petitioner herein is one amongst them. It was asserted that no student, having a lower rank than the writ petitioner, was allotted a seat in any of the options indicated by her. The respondents have asserted that beyond the 2nd round of counselling, there is no further process of admission and the seats, which remained unfilled in various institutions, and courses will not be processed any further for admission. It was suggested that the object behind having only two rounds of seat allocation is due to the fact that the courses in IIT, have intense learning requirements and hence, the admission process cannot be allowed to linger on for an indefinitely longer period, in the process, exposing the students to hardship to cope up with the rigours of academic curriculum. The respondents would suggest that if the counselling process is to be conducted till such time all the seats are filled in, it might require any number of allotments to be made and that would greatly delay the start of the academic programme and any such delay would only dilute the standards. It is also contended that there is no procedure contemplated for filling up the unfilled seats after the 2nd round of seat allotment. In view of this pleading set up by the respondents, the necessary data was asked to be submitted as to the availability of seats and the number of seats that remained unfilled. Hence, an additional counter affidavit dated 07.10.2010 has been filed in the matter. In the said affidavit, 925 candidates were shown allotted to various courses at the Indian School of Mining, Dhanbad along with 59 other candidates for the preparatory course at the end of the 2nd round of counselling. It was admitted that the sanctioned strength of the Indian School of Mining, Dhanbad is 1012. It is also asserted that only 653 candidates out of 925 granted admission have reported at ISM, Dhanbad. As a result, a large number of seats in this institute alone remained vacant and hence, at the meeting of the JIC that was held on 31.07.2010, ISM, Dhanbad has been permitted to fill up vacant seats, without violating the principles behind JEE seat allotment. It is sought to be contended that amongst the general category candidates, the last ranker admitted was 4995, which is far higher than the rank of the writ petitioner of 6684. It was further pointed out that an option for sliding within the various M.Sc. programmes within ISM, Dhanbad has been made available. They have also pointed out that going by the norms, five students who opted for sliding were given reallocation of their choice seats. In paragraph 13 of this affidavit, it was further pointed out by the respondents that the petitioner has a chance to change her branch at the end of the 1st and the 2nd semesters, depending upon her performance by securing a rank within the top 1% of the successful candidates without appearing for the special examination or repeating the examinations of the 1st or the 2nd semesters. Professor T.S. Natarajan of the Indian Institute of Technology, Madras and the Organizing Chairman of JEE-2010, has also filed another affidavit on 25.09.2010, wherein the whole of the data relating to the in-take capacity of seats and as to how many seats became available for the 2nd round of counselling as well as for the preparatory courses, has been made available. At page 5 of the said affidavit, dated 25.09.2010, the seats, which are lying unfilled due to dropping out of the students, has been indicated. Since this data will have a crucial bearing on the controversy at issue, it will be appropriate to reproduce the same: TABLE - 1 TABLE -2 TABLE-3 TABLE - 4 The first of these Data Tables would disclose that in all for the 17 institutions, a total of 9509 seats have been sanctioned, of them, 4644 are treated as general category seats while 2492 seats are reserved for other backward classes (OBC), 1383 were reserved for scheduled caste candidates and 700 went for scheduled tribe category, while 290 were set apart for the physically challenged category. As per this data sheet, after the 1st round of counselling, no seats are left unfilled for the general category or OBC category students. Only 6 seats reserved for SC category candidates and that too in IIT Roorkee remained unfilled, while a total of 212 and 200 were left unfilled for want of candidates representing scheduled tribes and the physically challenged segments. The 2nd table indicates the vacancy position as at the end of the 2nd round of seat allotment. While no general category seat remained unfilled, one seat meant for OBC candidate in IIT, Roorkee and 7 seats for the scheduled castes, 232 for the scheduled tribes and 203 for physically challenged categories remained unfilled. Data in Table 3 deals with Preparatory Courses, with which we are not concerned so much. Thus, there are 443 seats still remained vacant. In paragraph 6 of his affidavit, it is pointed out by Prof. Natarajan that these vacancies were remaining unfilled as a result of non-availability of JEE qualified candidates belonging to the respective reserved categories. In paragraph 9, the vacancy position as on 20.09.2010, has been summarized. This data in Table 4, which is made available at page 5 of this counter affidavit, discloses a very interesting feature. Across all the IITs, as many as 501 seats pertaining to the general (Open) category, 109 seats meant for OBC candidates and 100 seats meant exclusively for SC candidates and 44 seats for ST candidates and 27 physically challenged category candidates have dropped out leaving 781 seats, in all, unfilled from those which were filled-in in the 1st and 2nd rounds of counselling. As was noticed supra, 443 seats were lying vacant unfilled at the end of the 2nd round of counselling and by 20.09.2010, totally 781 seats became vacant due to dropping out of the students. This data discloses that a good number of seats remained unfilled, which when compared with the total intake, represents 8% of the sanctioned seats. One of the important questions that falls for determination is, in a country like ours whether we can afford to keep good number of seats, in prestigious institutions of higher learning and technology, to remain unfilled ? The very purpose of establishing IITs across the breadth and length of the country was to make available high quality infrastructural and instructional facilities coupled with wonderful opportunities for research orientation right from the very initial stages of professional training. The standard of the JEE examination, is doubtless, is of a high standard. A sustained effort of a minimum of two years duration is what can reasonably fetch a high score at this examination. The talent of the students is tested from a slightly different perspective than is attempted by the other institutions in the country. The reasons are not far to seek. The best of the lot are intended to be welcomed in these institutions. Their theoretical foundational strengths are tested before they are offered the admission. Apart from the fact that the JEE annually evokes increased response from the student community, the heartening feature is the increased number of students qualifying at the said examination. The standard bar of performance is challenged almost every year to be increased upwardly. The increased focus and orientation of the students and also the preparedness of the parents to spend money for securing quality education to their wards is one of the recognized secrets behind this phenomena. More and more parents are joining the elite club, which realized the importance of education. Consequently, large number of candidates are thrown up from hitherto educationally backward areas and localities. This new abundance of talent, which is being unearthed annually is bound to produce wonderful results for the country in a short time from now. In keeping with these emerging trends, the Ministry of Human Resources Department of the Government of India has also been sparing considerable financial outlay to these prestigious institutions. * These institutions have been endowed with eminent scholars and researchers. A great teacher or a researcher is bound to ignite the hidden volcano of the intellectual process in that young and talented head. Therefore, looked it from any perspective, keeping a large number of seats vacant and unfilled portrays more a sense of disinterestedness than anything else. A total of 781 seats, though may be representing only 8% of the total intake is as good a number as that of the total intake of some of the IITs themselves. Our society can ill afford to leave such large number of seats go abegging when students are willing to join them. The essential reason for so many seats being left unfilled is attributed to conducting only two rounds of counseling. It is true that some of the best academic institutions in the world may not be willing to lower the standard of admission for the sake of filling up all the available seats. Premier educational institutions are absolutely reluctant to compromise on the minimum standards required and expected to be possessed by the students. Such decisions deserve utmost respect. No academic institution should ever be compelled to lower their standards in the matter of admissions as compromising on the quality of intake is bound to visit and impact greatly the end products. But however, can anyone appreciate the reluctance to fill up seats when qualified and otherwise deserving candidates are still available and waiting for their turn? From the analysis of the data brought on record of this case it is disclosed that by the end of second round counseling itself nearly 450 seats were lying vacant and in a short time thereafter, these numbers swelled to nearly 800. Therefore, one attempt should have been made to fill up these vacant seats. The students are informed far in advance of the calendar, beginning with the date of commencement of classes at the respective Institutes. Between the date of announcement of the results of the JEE and the date of reporting finally and or commencement of classes, the time available can best be utilized for purposes of conducting one more round of counseling to ensure that the left over seats are filled in as many number as possible. At this stage, it would also be appropriate to notice that if no qualified candidate belonging to the reserved segments are available, appropriate remedial measures are required to be taken in that regard. And as a last resort, for want of qualified reserved category candidates, seats can be thrown open. I feel that such an exercise is required to be implemented from the academic session 2011-12 onwards. It will be appropriate to notice the developments of law in this regard. A Division Bench of the Madras High Court comprising of Justice Raju and Justice A.R. Lakshmanan (as their Lordships then were) had occasion to consider the question as to whether abandoned seats should be allowed to go waste or they should be offered to the next meritorious rankers, in DR. T. RAJENDRAN v. STATE OF TAMIL NADU AND OTHERS[1] (W.P.no.18055 of 1994 decided on 18-08-1994). In para 15, Justice Lakshmanan speaking for the Bench has set out as under: “15. xxxxxxxx It is needless to emphasis that no seat in any higher speciality course like D.M. Nephrology should be allowed to lie vacant for undoubtedly a long time or go waste or lapse on account of discontinuance of studies or abandonment of the course by the selected candidate. In our opinion, respondents 1 to 3 ought to have taken steps to fill up the said vacancy caused on account of the absence of Dr.R.Balakrishnan since 15.1.1994 by admitting the selected candidate in the waiting list. Xxxxxxxxxx Public Interest as also the interests of justice requires that the one vacant seat out of the two reserved for service candidates in D.M. Nephrology course, which was allotted to Dr.R.Balakrishna should have been filled up by offering the same to the petitioner who occupies the first place in the waiting list under the service quota. Xxxxxx” A Full Bench of the Delhi High Court in DR. VEENA GUPTA v. UNIVERSITY OF DELHI[2] speaking through Justice B.N.Kirpal (as His Lordship then was), in paras 11 and 12 has said this: “(11) The next question which arises for consideration is as to who are the persons who be considered entitled to take part in the said counselling. Normally, when a seat is available, the same should be included in the initial counselling. If by mistake a seat is not included in the initial counselling then the next question which arises is as to how the said seat should be filled. (12) To find a solution, it is necessary to take an example. If say, one seat of M.D. (Medicine) is available in a good hospital in Delhi and the same is not notified, the affect is that nobody opts for the same. If now the said seat is sought to be offered to all the candidates for counselling, the result would be that all the candidates who took part in the first counselling, should be given a chance, in order of merit, to opt for the same seat. This will start a chain reaction and ultimately there will be one seat more which would become available for the second counselling. There again a chain reaction will start leading to the third counselling. The effect of putting the seat back for counselling for all candidates would, Therefore, be to upset the entire counselling which had already taken place. As such, even though it may seem unfair, there is no alternative, apart from leaving the seat unfilled, but to offer the said seat to the wait listed candidates. We are, Therefore, of the view that any seat which is available and which has not been included in any of the three counselling by mistake should be filled in order of merit amongst the wait listed candidates.” In ARVIND KUMAR KANKANE v. STATE OF U.P. AND OTHERS [3], the Supreme Court was called upon to consider the correctness of the principle set out in DR. VEENA GUPTA’s case cited (2) supra. In paras 4 and 5, the principle in DR. VEENA GUPTA’s case has been upheld in the following terms: “4. We have carefully examined the contentions put forth before the High Court and before us and we are of the view that the finding recorded by the Division Bench and Delhi High Court in Dr. Veena Gupta's case (AIR 1994 Delhi 108 (supra) and the High Court of Punjab and Haryana in Anil Jain's case (1998 (3) ESC 2016) (supra) is in accordance with the reason and stands the test of rationality. It is clear that once an option is exercised by a candidate on the basis of which he is allotted the subject and thereafter that candidate is allowed to participate in subsequent counselling and his seat becomes vacant, the process of counselling will be endless and, as apprehended by the High Court, it may not be possible to complete the academic course within the stipulated period. 5. The grievance made is that if a choice subject like surgery and medicine is given up by a candidate and that seat becomes vacant it may go to a candidate who is lower in rank in the merit list. This is only a fortuitous circumstance dependent on so many contingencies like the student, who has been allotted seat in medicine, giving up the said seat and that seat falling vacant and thereafter the same is allotted to a candidate who is lower in