W.P. 2764/2008 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of reserve : 02.04.2009 Pronounced on : 27.04.2009 + W.P. (C) 2764/2008 ANOOP PRAKASH AWASTHI ..... Petitioner Through: Mr. Sanjay Jain, Sr. Advocate, Amicus Curiae with Mr. Arjun Mitra and petitioner in person. versus UNIVERSITY OF DELHI & ANR ..... Respondents Through: Mr. Mohinder Jit Singh Rupal with Mr. Amar Jyoti Srivavstava, Advocates for University of Delhi. Mr. Y.S. Chauhan, Adv. for Applicant CORAM: Mr. Justice S.Ravindra Bhat 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? Mr. Justice S.Ravindra Bhat : 1. The writ petitioner, in these proceedings seeks a direction to the respondents to immediately complete the process of allocating a hostel facility and exhausting all existing vacancies. Other directions are sought, that the guest clause of certain quotas, such as those made available to Provost and Financial Guarantor conditions should either be rationalized or removed. 2. When the petitioner approached the Court in 2008, he was a student of LL.B First Year in the Campus Law Centre, having secured 394 marks in the entrance examination on W.P. 2764/2008 Page 2 17.06.2007. He was admitted on 17.07.2007. He claims that even though he ranked sufficiently high, and had applied for accommodation in University’s Hostels, yet, was not selected. He contends that in the P.G. Men’s Hostel, 23 seats are earmarked for law students out of which only 18 were actually filled, thus leaving 5 vacant seats. He also refers to the position in other hostels likewise, law students had not been given their full in the quota. It is also contended that the hostels were permitting unauthorized occupation by guests resulting in deprivation of facilities, to eligible students. The petitioner relies upon replies to queries made to the Delhi University and contends that the procedure for granting admission to hostels is arbitrary. It was submitted that despite existence of vacancies, he was deliberately denied a hostel seat. 3. This Court had, during course of the proceedings, issued an order on 05.08.2008, directing Delhi University to grant the petitioner admission to P.G. Men’s Hostel on being prima facie satisfied on the basis of materials on record. The said order is in the following terms: “Present: Mr. Sanjay Jain, Sr. Adv. (Amicus Curiae) with Mr. Arun Mitra, Adv. for the petitioner. Mr. Mohinder Rupal, Adv. for the respondent. WP(C)No.2764/2008. At present, the petitioner is a second year student of law. The grievance of the petitioner is that despite there being hostel rooms available, no room is being allotted to him. Notice to show cause was issued. The respondents have filed their counter affidavit. During the pendency of this matter, Mr. Sanjay Jain, Senior Counsel was appointed as Amicus Curiae to assist the Court. The matter has been adjourned on various dates for one reason or the other. Documents have also been produced in Court showing the status of rooms available. Based on the RTI query, learned senior counsel appearing for the petitioner has relied upon a document at page 86 to show that one hostel room is still lying vacant. Today during the course of hearing, learned counsel for the respondents has handed over another list to show that four rooms, which are meant for the students of first year, had already been allotted. Counsel for the respondents W.P. 2764/2008 Page 3 fairly submits that two other rooms are available and out of them one room is meant for foreign quota students and another for Ph.d quota. It is not in dispute that by 30th, April, each year, all rooms are supposed to be filled up. Even after the cut off date i.e. 30thApril, admittedly two rooms are lying vacant and have not been allotted to any student, nor any student has approached the respondents for allotment. As an interim measure, the respondents are directed to allot one room to the petitioner, subject to further orders from this Court. This room will be allotted to the petitioner purely as an interim measure and no equity will flow in favour of the petitioner. The room will be allotted to the petitioner within two days from today. This allotment is subject to the final outcome of the writ petition. The respondents will file all relevant documents, they wish to rely upon, in the meanwhile, to enable this Court to hear the matter further. List on 04.11.2008. Dasti.” 4. The respondent University in its counter affidavit dated 28.07.2008 mentioned about the facts. According to it, the petitioner had applied in four hostels (Gwyer Hall, Jubilee Hall, P.G. Men’s Hostel and Mansarover Hostel) for the session 2007-08; that session had ended. The affidavit further stated that the petitioner was at liberty to apply afresh and such an application would be dealt with by various hostels, on its merits. The University also deposed that so far as Gwyer Hall was concerned, the petitioner had applied on 17.08.2007. That hostel offered 162 seats; the petitioner’s application was incomplete and was not entertained. The University claims that in this hostel, no student ranking below the petitioner, or less merited than him, was admitted in 2007-08 and that those who were granted such admission were ranked 7, 15, 27 and 55. As far as Jubilee Hall is concerned, the total hostel intake was 90 for the session 2007-08. It is claimed that though the petitioner had applied, his name did not figure in the merit list and that all the 15 seats distributed to LL.B First year course (from a total of 40 seats allocated to LL.B), none ranking below the petitioner was given admission. As regards the P.G. W.P. 2764/2008 Page 4 Men’s Hostel, (the admission for which ultimately the present proceedings were pressed, during the hearing) is concerned, the University contends that the petitioner applied on 7.8.2007. This hostel had a total of 100 seats for 2007-08. It is said that 98 admissions, including admissions in four phases were made for the academic session 2007-08. Four students were admitted from the first year LL.B course and four students were admitted from the second year course for the relevant period, i.e. 2007-08. It is submitted that all those who were granted admission in the first year quota ranked higher than the petitioner. The University relies upon the merit list of the LL.B first year entrance examination, which has been produced with the affidavit. 5. During the hearing, the writ petitioner was represented by the amicus, Mr. Sanjay Jain, Senior Advocate, appointed previously by the Court. The court is grateful for the assistance rendered by the learned senior counsel. He contended that the records reveal that vacancies existed in the P.G. Men’s Hostel, which could be filled up. Reliance was placed upon a decision of this Court reported as Abhinitam vs. University of Delhi 112(2004) DLT 53 to say that a foreign quota vacancy existed in the law course, that should have been validly diverted for being filled by a merited candidate. It was said, that on an application of the ratio in that judgment, the respondents should have admitted the petitioner. Even according to the office of the Dean of Colleges, the University should have allotted a seat sometime in the end of July 2008. It was contended by relying on the list produced along with C.M. No. 14584/2008 that the University indulged in arbitrary acts because it admitted ineligible persons like Rakesh Dagar, even though he was an ex-student. For this purpose, reliance is placed on a certificate issued by the Faculty dated 23.09.2008 stating that the said Rakesh Kumar Dagar had taken W.P. 2764/2008 Page 5 admission in the LL.B. first year course as a regular student in 2006-07 and passed one paper out of 5 papers and that during 2007-08, and that he was an ex-student. Learned counsel relied upon the same list to say that two foreign quota seats were wrongly diverted to other Faculties. It was submitted that since no students were available in the Foreign Quota seats earmarked for LL.B. First Year course, the University should not have diverted those to other Faculties and instead, retained it for utilization by the other candidates and the petitioner. 6. It is argued that the respondents admitted one Raj More, who had no right to be continued since he was expelled from the hostel. Learned senior counsel refers to some letters written by the P.G. Men’s Hostel to the petitioner on 20.03.2009 and also relies upon the copy of an F.I.R. said to have been filed, for this purpose. It is submitted that the Handbook of Information and Rules for 2007-08 session clearly stated that 23 seats were earmarked for the Faculty of Law (Clause 4.1.1); of these 4 seats were to be earmarked from the General category seats for First Year students. The hostel’s obligation is to ensure that in case foreign students were not available, general merit students were not adversely impacted and were given admission. It is submitted that though there is no dispute about every candidate having to apply, in August, in the first phase, secondly in October in the second phase and later by 31st March, in the third phase; the right of a merited candidate to be considered and continued is undeniable. Therefore, reliance is placed upon Rule 3.3 read with Rule 5.1 to say that once a student is held entitled; or granted admission on the basis of his merit, provided he satisfies the eligibility criteria, he shall be eligible to stay in the hostel for the entire duration of his course, W.P. 2764/2008 Page 6 which under Rule 5.1(d) is three years. The only exception provided is in Rule 5.3 if the student fails in his examination. 7. The respondents contend that this Court made the interim order on the basis of the affidavit and the materials which existed on the record, particularly, the notings. It is contended that the petitioner had secured 394 in the entrance examination for 2007-08, whereas Rakesh Kumar Dagar, against whom he has leveled allegations, secured a better ranking, having secured 401 in the merit list, in the entrance examination. However, it is argued that Rakesh Kumar Dagar had undoubtedly been admitted in the previous year, but apparently due to his poor performance or whatever reason, he sought admission in the next year, appeared in the entrance test again and secured high ranking and was better placed than the petitioner. Therefore, there cannot be any grievance as far as his admission to the hostel is concerned. It was submitted that the petitioner cannot complain of arbitrariness because all those granted admission in the LL.B. First year quota were more merited, having performed better than him in the entrance examination. 8. It was submitted that so far as the later admission (of Rajat Mor) is concerned, the petitioner being a student was aware that he ought to have applied, in the succeeding year and not based himself entirely on the fate of this litigation. Learned counsel relied on Rules 3.2 and 3.3 for this purpose. So far as the complaint of discrimination by the University as against the petitioner, vis a vis Rajat More, it is contended that he too had fared better in the LL.B. First year and therefore, ranked better than the petitioner. It is submitted that, therefore, there is W.P. 2764/2008 Page 7 no illegality in the respondent’s action in declining or not granting hostel accommodation to the petitioner. 9. From the above discussion, following undisputed facts emerge: (1) The petitioner applied for hostel accommodation in the P.G. Men’s Hostel in August 2007. The hostel has a total intake of 100. (2) The hostel has a total 23 seats for the LL.B. course, of which 15 are earmarked for General category candidates. Of these, 4 are allocated for LL.B. First year candidates. A total of 2 seats are earmarked for the foreign students. (3) The hostel admissions are carried out in three phases; the students have to apply in August (first phase); by 31st October (second phase); and by 31st March (third phase). When the petitioner applied in the first instance, his request was not acceded to. (4) Two foreign quota seats provided for Law Faculty were filled by foreign students from other Faculties. 10. For a fuller appreciation of the controversy, it would be necessary to consider the relevant provisions of the Handbook containing the Rules for admission to the Post-Graduate Men’s Hostel. Rule 2 prescribes eligibility for admission it states (Rule 2.1) that the applicant should be full-time bona fide post-graduate student or be a full-time degree student admitted to a post graduate department or Faculty. Rule 3 prescribes admission procedure. According to Rule 3.1, short listing of applications is done by an Admission Committee. Rules 3.2, 3.3, 3.4 and 3.5 state as follows: W.P. 2764/2008 Page 8 “3.2 The admission is made for a period of one academic year and a fresh application is need for re-admission at the beginning of each year. Except the M.Phil and Ph.D. scholars, residents will vacate the rooms either on or before the last day of the academic year or immediately after his last university examination being held at the end of the academic year. Residents wishing to stay in the Hostel during the summer vacation may be allowed to do so as resident guests by the Provost on their written request. If a student fails to take re admission within ten days after declaration of his result or the due date, whichever is later, he will be charged Rs.5/- per day as late admission fee and after the expiry of one month from the due date or date of declaration or results, he will forfeit his right to re-admission and will be evicted. 3.3 Admission is made strictly on the basis of merit as decided by each Department, provided the applicants satisfy the eligibility criteria. 3.4 A student who has taken admission to any one of the P.G. hostels of Delhi University will not be considered for admission to another P.G. Hostel, till he completes the course on the basis of which he had taken admission to the earliest hostel. 3.5 If admission to a course is made through a written test/interview such that the Department provides a merit list for admission, the same merit will be followed for admission to the hostel. No weight age will be given for any other parameter or factor for admission to the hostel in this case.” 11. The distribution of seats is indicated by Rule 4. For the purpose of facility, it would be necessary to extract the entire Rule which is as follows: “4.DISTRIBUTION OF SEATS 4.1 The hostel has a total of 100 single-seated rooms, in addition to one guest room. The allocation of seats for different categories of students among various faculties is as follows: G.C.** S.C.** S.T.** F.** Total 4.1.1 Faculty of Law 15 4 2 2 23 4.1.2 Faculty of Science 17 3 2 3 25 4.1.3 Faculty of Education 2 - - - 2 4.1.4 Delhi School of Economic 3 1 - 1 5 W.P. 2764/2008 Page 9 s and Faculty of Manage ment Studies 4.1.5 Faculty of Music and Fine Arts 2 - - - 2 4.1.6 Faculty of Arts and Social Sciences 20 6 3 3 32 4.1.7 Faculty of Mathema tics 4 1 - 1 6 4.1.8 Blind/Phy sically Handicap ped** - - - - 3 4.1.9 Wards of War Widows* * - - - - 1 4.1.1 0 Sports Person** - - - - 1 Total 63 15 7 10 10 0 **Seats reserved for these categories can be allotted to applicants of the same category from any faculty/subjects if number of applicants under these categories in any other faculty is less than the prescribed seats. Only after exhausting all the applications received by the Hostel under a particular quota the spare seats can be shifted to another quota/category of the same or any other faculty/subject. G.C. = General Category, S.C. = Schedule Caste, S.T. = Schedule Tribe, F. = foreigner 4.2 Faculty/Department-wise seat distribution in the general quota: S.No. Name of Faculty Total seats Department/Course Seats 1 Faculty of law 15 LLB I Year LLB II Year 4 4 W.P. 2764/2008 Page 10 LLB III Year LLM I Year LLM II Year Ph.D 4 1 1 1 2 Faculty of Science 17 Anthropogy 2 Botany and Environmental Biology 3 Chemistry 3 Geology 2 Physics and Astrophysics 2 Zoology 2 Ambedkar Centre for Bio-Medical Research 1 1 3 Faculty of Education 2 - 2 4 Delhi School of Economics and FMS 3 Economics 1 5 Faculty of Music 2 Sociology 1 6 7 Faculty of Arts and Faculty of Social Sciences Faculty of 20 Geography/FMS 1 - 2 English 2 Hindi/Tamil/Punjabi 3 Germanic and Romance Studies 1 History 3 Linguistics 1 Modern Indian Languages and Literary Studies 1 Philosophy 1 Political Science 2 Psychology 1 Sanskrit 1 African/Buddhist Studies/Commerce 2 Slavonic and Finno- Ugrian Studies 1 Urdu/Arabic/Persian 1 Mathematics 1 W.P. 2764/2008 Page 11 Mathematical Sciences Operational Research 1 Statistics 1 Computer Science 1 4.3 In case no application or inadequate number of applications is received under the quota of any subject/faculty, the spare seat/s of such a subject/faculty may be allocated to subject/s of a sister department/s or faculty/-ties by the Admission Committee. If candidates for SC/ST are not available among the applicants in a faculty, seats reserved for SC/ST candidates of the faculty will be filled up by the candidates of the same categories from other faculties.” 12. Thus, Rule 4.2 which deals with the Faculty/Department-wise seat distribution in the General Quota, earmarks four out of 15 seats for LL.B. First year students. Rules 5.1, 5.2 and 5.3 state as follows: “DURATION OF STAY 5.1 A student shall be eligible to stay in the hostel for the duration of his course as per the details given below: a) M.A./M.Sc./LLM/MBA/MCA : 2 years. b) M.Phil: 18 months or span period as laid down by the M.Phil Committee of the department concerned and approved by the Academic Council of the University, but in no case more than the maximum of two years. c) Ph.D.: 5 years (students re-registered in Ph.D. After the expiry of first 5 years of enrolment in Ph.D. Will not be eligible for admission to the hostel. d) LL.B.: 3 years. e) Maximum duration of stay in P.G. hostel system: six years. 5.2 A resident shall vacate the hostel within a week after completing his: a) Statutory period of the course as specified above, or b) M.Phil/Ph.D. thesis and viva-voce examination, or c) Six Years in the University hostel system (in whatever capacity after the first admission), whichever is earlier out of the three options. 5.3 A student who fails in the examination or fails to appear in the examination for any reason whatsoever, (even on medical grounds) forfeits his right to re admission. No student will be re-admitted and granted any extension on medical ground.” W.P. 2764/2008 Page 12 13. The first question is whether the hostel acted arbitrarily as claimed by the petitioner in admitting students from other Faculties, as against two seats earmarked for such foreign students in LL.B. First Year college. The petitioner relies upon Abhinitam’s decision to say that allocation of the two seats to foreign students from another Faculty should not have been resorted to and that it has deprived him of a legitimate right. The relevant part of the judgment reads as follows: “16. The aforesaid data becomes relevant in view of the contention of the petitioner that four seats in the category of foreign students allocated to the Law Faculty were still lying un-filled. Learned Counsel for the respondents, however, stated that there could not be any transfer of such seats and in this behalf referred to the provision contained in the end of Rule 3.10, which is as under: If the candidates for SC/ST are not available among the applicants in a faculty, seats reserved for a faculty will be filled up by the candidates of the same categories from other faculties. Out of these 15% & 7.5% seats are reserved for SC and ST students, respectively, 10% seats are for foreign students, 1% for wards of war widows and 3% for visually handicapped and other disabled students and 1% for sports quota. 17. A reading of the aforesaid provision, in my considered view, makes it clear that the seats allocated to SC/ST category which are not filled up from the relevant department, have to be filled up from other faculties and cannot be transferred to the general category. There is, however, no such restriction provided in respect of the foreign students. 18. This aspect is extremely important since the issue of allocation of such seats meant under the foreigner quota is subject matter of adjudication in Manish Chandra Pathak v. University of Delhi & Ors., 98(2002)DLT 679. The said case also dealt with admission to the LL.B course but in a different hostel and it was held that these seats could not have been released to another department and the seats pertaining to the foreigners quota of Law Faculty have to be allocated to the general category of students of the Law Faculty.” 14. As is evident from the above extract, the Court had relied on Manish Chandra Pathak case (supra) to say that diversion of seats as against Foreign Students Quota depriving General W.P. 2764/2008 Page 13 merited candidates of the Law Faculty was unjustified. Manish Chandra Pathak case (supra) was in the context of change in the norms brought about by a meeting of the Managing Committee enabling it to divert the seats in respect of Foreign Quota of one course to another in case of inadequate representation of the latter. The Court was of the view that after issuance of Handbook of Information and displaying list of shortlisted candidates, the University could not have turned back and changed the rules to the disadvantage of those who were seeking admission. 14. In this case, from the above discussion, the Court has to decide if there is any bar, as a matter of law, preventing the diversion of the Foreign quota seats from one course to another. The petitioner strongly argued that such a bar does exist. 15. Now, a reading of the Handbook of the relevant rules, particularly, Rule 4 would show that there are total 100 seats of which category-wise and Faculty-wise break-up is indicated. The following note appears at the end of Rule 4.1: “**Seats reserved for these categories can be allotted to applicants of the same category from any faculty/subjects if number of applicants under these categories in any other faculty is less than the prescribed seats. Only after exhausting all the applications received by the Hostel under a particular quota the spare seats can be shifted to another quota/category of the same or any other faculty/subject.” 15. The close reading of the above would show that the hostel is empowered to allot seats reserved for the various categories (such as General, SC, Foreign etc). If the number of applicants in any one Faculty is less than the prescribed seats, the embargo is that the hostel has to “exhaust” all applications received by it under a particular quota after which “the spare seats can be shifted to another quota/category of the same or any other faculty/subject.” In W.P. 2764/2008 Page 14 this case, the total available seats for General category LL.B. First Year students was 4; records made available show that though 4 seats were filled up, yet the overall 15 seats were not filled. 16. The above note, in this Court’s opinion should be interpreted to further the broad objective of the main rule, rather than subvert it. While a hostel can have flexibility to fill the overall quota for a category