Civil Writ Petition No. 13089 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 13089 of 2011 Date of Decision: 6th September, 2011 Harnoor Kaur Mann ..Petitioner Versus Punjab Engineering College and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Sanjiv Sharma, Senior Advocate with Mr. Vikram Sharda and Ms. Sunita Chauhan, Advocates for the petitioner. Mr. Sanjiv Ghai, Advocate for respondent No.2. Mr. R.S.Bains, Advocate for respondent no. 1,3,4,5,6 and 7. RAJIVE BHALLA, J. The petitioner prays for issuance of appropriate writ, direction or order directing the Punjab Engineering College, Chandigarh, to reassess inter se merit between the petitioner and respondent no.8 and reallocate a seat in the Bachelor of Engineering Course, for the Session 2011-12. Counsel for the petitioner submits that both the petitioner and respondent no. 8 have been admitted to the B.E Course, in the sports category . For allocating the stream of instruction, inter se merit is, determined, in accordance with clause 2.2.4.6 and Notes 1 and 2 of the prospectus. The University has determined inter se merit, by misreading these clauses. As the petitioner has 01 Civil Writ Petition No. 13089 of 2011 2 participation and 02 second positions, i.e., three participations in all, whereas respondent no. 8 has one second position and, therefore , one participation, the petitioner and respondent no.8 cannot possibly be equated, while assessing inter se merit. It is further submitted that inter se merit has to be determined on the basis of sports performance over a period of three years. Sub clauses (a) to (f) provide for preference to record holders, winners, runners up, 3rd position holder, number of participations, and number of disciplines participated, in that order. A candidate who has one participation and two second positions must, therefore, necessarily prevail over a candidate, who has one second position and no other participation. The respondents' interpretation that if the position obtained by two candidates is equal, the fact that a candidate may have more than one such position, is irrelevant, can not be discerned from the rules. It is further argued that the respondents have ignored sub clause (e) which grants preference to the number of participations. It is prayed that the inter se merit determined by the respondent-University, be set aside and the petitioner may be granted preference, over respondent no.2. Counsel for the University (respondent no.2), on the other hand, contends that if two candidates attain the same position, in this case runner up, the fact that one of these candidates may have attained this position twice or may have participated on more occasions than the other, is irrelevant. The petitioner and respondent no.8 have attained a second position each and must, therefore, be treated at par. Clause 2.2.4.6 or sub clauses (a) to (f) do not lend support to the arguments advanced by counsel for the petitioner. Apart from respondent no.2, the other respondents have not Civil Writ Petition No. 13089 of 2011 3 filed a reply. In fact, respondent no. 8 was proceeded against ex parte for failure to put in appearance, despite service. I have heard counsel for the parties, perused the relevant clauses of the prospectus and the respective gradation certificates. Inter se merit for allotting the stream of instruction, in the undergraduate course, is to be determined in accordance with procedure prescribed by clause 2.2.4.6 read with Notes 1 and 2 of the prospectus, which read as follows: " 2.2.4.6 Only `A', `B', `C', and `D', Grade will be awarded by the Chandigarh Administration. In the matter of rating inter-se, preference in the same grade shall be given in the following descending order, namely: (a) Records holders in any event (b) Winners (c) Runners up (d) 3rd position holders (e) Number of times participated (f) Number of disciplines participated. NOTE: 1. If there is a tie within the same category, the same shall be resolved by considering the academic merit of the concerned sportspersons in AIEEE. In case of tie in the academic merit also, the same shall be resolved by considering the seniority in age. 2. Regarding Senior and Junior Tournaments/Championships, Senior shall have precedence over Junior. Further, Junior and School championship will Civil Writ Petition No. 13089 of 2011 4 be considered at par." Before recording any opinion in the matter, it shall be appropriate to mention that sports performance is graded on the basis of performance over a period of three years preceding the date of consideration. Preference in the same "grade" is to be accorded in accordance with sub clauses (a) to (f) of clause 2.2.4.6, in descending order. Note 1 provides that in case of a tie in the same category, it shall be resolved by considering academic merit in A.I.E.E.E. and in case of a tie in this examination, it shall be resolved by considering seniority in age. Note 2 provides that a senior tournament shall have precedence over a junior tournament, but junior and school tournaments shall be considered at par. The admitted inter se sports achievements of the petitioner and respondent no. 8, preceding the date of considetration are as follows: Sr. No. Game/Sports Petitioner Respondent No.8 1. 54th National Participation 2nd position National School (Tennis under 17) Handball under 17 Games, 2008-09 2. 55th 2nd Position -- National School (Tennis under 19) Games, 2009-10 3. 56th National 2nd position -- School Games, (Tennis under 2010-11. 19) The petitioner has one participation and two runners up Civil Writ Petition No. 13089 of 2011 5 positions, whereas respondent no.8 has only one runner up position and no participation. The respondent-University, has, however, equated the petitioner and respondent no.8 on the premise that both candidates are runners up and the fact that the petitioner was a runner up in two different years and in different age groups, is irrelevant. The respondent-University seeks to interpret sub clauses (a) to (f) in a manner that if two candidates have the same position in any given year, the fact that one of these candidates may have attained this position in other years, is irrelevant, and would require both candidates to be treated at par. The gradation policy, when read along with clause 2.2.4.6 and sub clauses (a) to (f), in my considered opinion, does not lend support to the interpretation placed by the University. The respondent-University has equated unequals by ignorning that gradation and inter se merit is to be determined on the basis of sports performance over a period of three years. The petitioner has one participation and two runner up positions, whereas respondent no.8 has one runner up and no participation . To equate one participation and two runner up positions, with one runner up position and no participation would, in essence, equate unequals and confine consideration to the performance of one year, thereby negating the performance of three years. The opening words of clause 2.2.4.6 clearly provide that inter se gradation is to be resolved by resorting to sub clauses (a) to (f) in descending order. The expression "descending order" does not equate a participation and two runner ups with one runner up and no other position or participation. Sub Clauses (a) to (f) merely provide that the position attained in (a) shall prevail over position attained in (b) and so on and so forth. Sub Civil Writ Petition No. 13089 of 2011 6 clauses (a) to (f) do not provide that if two candidates have attained the same position, they shall be equated even if the other candidate has attained this position more than once. It is true that, both the petitioner and respondent no.8, have a runner up position each, but as the petitioner has two runner up positions, in two different years and in two different categories, namely, under 17 and under 19, she would necessarily prevail over respondent no. 8. If the interpretation placed by the University is accepted, it would equate a lesser sports person with a better sports person, in essence, rewarding a lesser sports person while equating him or her with a better sports person. The object of the policy is to reward sports performances over a period of three years preceding the date of consideration and to select the better sports person. To illustrate this point , a reference may be made to sub clause (e) which reads as follows: " 2.2.4.6 XX XX XX In the matter of rating inter-se, preference in the same grade shall be given in the following descending order, namely, (a) XX XX XX (b) XX XX XX (c) XX XX XX (d) XX XX XX (e) "Number of times participated..." The said sub clause (e) clealry provides that preference is to be given to the number of times participated, thereby clearly setting out that a candidate who has more participations, shall rank higher while determining inter se merit. Civil Writ Petition No. 13089 of 2011 7 The respondents have, in my considered opinion, committed an error in equating the petitioner with respondent no.8. The sports performance of the petitioner must, therefore, rate her over and above respondent no.8, while determining their inter se merit. In view of what has been stated above, the writ petition is allowed, the inter se merit determined by the respondents is set aside and they are directed to re-determine inter se merit between the petitioner and respondent no.8, within 15 days from the date of receipt of a certified copy of this order and pass consequential orders within a week thereafter. No order as to costs. 6th September, 2011 ( RAJIVE BHALLA ) VK JUDGE