IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 10885 of 2009 Date of Decision: August 7, 2009 Ms. Avneet Hira (minor) and another …Petitioners Versus Chandigarh Administration and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. H.S. Mattewal, Senior Advocate, with Dr. H.S. Sidhu, Advocate, for the petitioners. Mr. Anupam Gupta, Advocate, for respondent No. 1. Mr. R.S. Bains, Advocate, for respondent No. 3. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges an alleged incongruous part of the stipulations of Section: B of the Joint Admission Brochure issued for Admission to various courses including the First Semester of B.E. Course for the academic session 2009-10 (P-1). The alleged incongruity clubs C.W.P. No. 10885 of 2009 together 5% seats of the ‘U.T. Pool Quota’ and ‘All India Quota’ reserved for sons/daughters/spouses of Military/Paramilitary Personnel, relating to admission in PEC University of Technology, Chandigarh, The petitioners have also prayed for quashing of similar provision contained in Section: C of the aforementioned brochure concerning admissions in the Chandigarh College of Engineering and Technology, Chandigarh (P-1). Still further a prayer has been made for directing the respondents to admit the students in accordance with the direction/clarification issued by the Chandigarh Administration vide its letter dated 15.7.2009, which clarifies that reservation of seats under the aforementioned category would be calculated separately for the ‘U.T. Pool Quota’ and ‘All India Quota’. 2. The petitioners are wards of serving Army Personnel. They have passed their 10th, 11th and 12th examinations from the schools located in Union Territory of Chandigarh and also qualified the ‘AIEEE-2009 Examination’. For admissions to the First Semester of B.E. Course in various institutions including Punjab Engineering College University of Technology, Chandigarh (PEC), Chandigarh College of Engineering and Technology, Sector 26, Chandigarh (CCET) and Chandigarh College of Architecture, Sector 12, Chandigarh (CCA), a joint admission brochure for the session 2009- 10 was issued laying down various admission procedures for admission to under Graduate Courses. 3. At page No. 1 Sr. No. 5 of the brochure, under the heading ‘Important Points’, it has been prescribed that the candidates 2 C.W.P. No. 10885 of 2009 who have passed their qualifying examination (10+2) from schools/colleges located in the Union Territory, Chandigarh and recognised by the Chandigarh Administration, would be considered under the ‘Chandigarh Quota’ (for PEC/CCET/CCA only) and all other students, who have passed their qualifying examination from elsewhere, would fall under the ‘All India Quota’. It has further been mentioned that there would be no ‘Chandigarh Quota’ for University Institute of Engineering and Technology (UIET) and University Institute of Chemical Engineering and Technology (UICET). 4. Under Clause 1.1 of the brochure, general eligibility conditions were mentioned. For B.E. Courses following two conditions were prescribed:- “The admission to the First Semester B.E. Courses will be open to a candidate, who (i) has qualified in the AIEEE-2009, conducted by the C.B.S.E., for admission to these courses. (ii) has passed +2 or its equivalent examination with at least 60% marks in aggregate (55% marks in case of S.C./S.T./Physically Challenged), conducted by a recognized Board/University/Council in March/April 2009 and not earlier than March/April 2006.” 5. As per Clause 1.1.1 relating to ‘Inter-se Merit for Admission’, inter-se merit of the candidates for admission was to be determined on the basis of rank obtained in AIEEE-2009 only, except 3 C.W.P. No. 10885 of 2009 in the ‘Sports Category’ and the categories of Code 8 to 26 given in Annexure-I attached to the brochure (P-1). It is pertinent to notice that Code 8 to 26 of Annexure-I refers to various sub-categories of ‘wholly dependent sons/daughters/spouses of military personnel and paramilitary personnel’. 6. Section: B and Section: C of the brochure contains general information about seats and categories relating to ‘PEC University of Technology, Chandigarh’ and ‘Chandigarh College of Engineering and Technology, Chandigarh’ respectively. The total number of seats meant for ‘PEC’ as given in Section: B is 385. Fifty percent of the said seats were required to be offered to candidates in the following manner: “(a) Chandigarh Quota: for all those candidates who have passed their qualifying examination (+2) from schools/colleges located in the Union Territory, Chandigarh and recognized by the Chandigarh Administration. (b) All India Quota: for candidates who have passed their qualifying examination (+2), but are not covered under category (a) above.” 7. Section: B further bifurcate the seats to the extent of 50% quota in different categories in ‘Chandigarh Quota’ and ‘All India Quota’, which reads thus: “S. No. Category (a) Chandigarh Quota % of Reservatio n Seats 4 C.W.P. No. 10885 of 2009 (i) Scheduled Castes 14% 27 (ii) *Sons/ Daughters/ Spouses of Military/ Paramilitary Personnel *5% 10 (iii ) Physical Handicapped 3% 06 (iv) Children/ Grandchildren of Freedom Fighters 2% 04 (v) Sports persons 2% of the total seats 08 (vi) Open seats ---------- 138 Total Seats (Chandigarh Quota) 193 (b) All India Quota (i) Scheduled Castes 15% 29 (ii) Scheduled Tribes from all states and UTs of India 5% 09 (iii ) *Sons/ Daughters/ Spouses of Military/ Paramilitary Personnel *5% 10 (iv) Physical Handicapped 3% 06 (v) Children/ Grandchildren of Freedom Fighters 2% 04 (vi) Open seats ---------- 134 Total Seats (All India Quota) 192” 8. It is pertinent to notice that in the category of ‘Sons/ Daughters/ Spouses of Military/ Paramilitary Personnel’ there is a specific deviation mentioned under both quotas i.e. (a) ‘Chandigarh Quota’ and (b) ‘All India Quota’, at Sr. Nos. (ii) & (iii) respectively, which is made discernible by an asterisk (‘*’). It has been defined to mean as under:- “ *Chandigarh Administration has decided to waive of domiciliary restriction of minimum stay in the states/UT 5 C.W.P. No. 10885 of 2009 and condition of passing 10th and 12th standard examination from the same state/UT in respect of wards of serving defence personnel/ex-servicemen, seeking admission in the institutions of UT Chandigarh. Hence the quota is open to all.” 9. Similar is the position with regard to Section: C although number of seats and percentage of reservation of various categories is different. 10. The petitioners applied for admission in the B.E. course under the category of ‘Sons/ Daughters/ Spouses of Military/ Paramilitary Personnel’ against the seats meant for the colleges situated in Chandigarh. The counselling was scheduled for 15.7.2009. 11. The grievance of the petitioners is that the Joint Admission Committee did not adhere to the ‘Chandigarh Quota’ and ‘All India Quota’ in the manner provided in the brochure and all the reserved seats meant for the aforementioned category were clubbed together. For PEC the percentage of quota is 50% for each of the two quota and for the CCET the percentage for Chandigarh Quota is 85% and All India Quota is 15%. The aforementioned fact was brought to the notice of the Chandigarh Administration by making representations by the candidates. Whereupon, the Chandigarh Administration-respondent No. 1 issued a communication on 15.7.2009 clarifying that the reservation of seats under the said category was to be calculated separately for ‘U.T. Pool Quota’ and 6 C.W.P. No. 10885 of 2009 ‘All India quota’ (P-2). It has been alleged that despite the clarification dated 15.7.2009 (P-2) the Admission Committee is bent upon to admit the students in the category of ‘Sons/Daughters/Spouses of Military/Paramilitary Personnel’ on the presumption that there are no separate quotas, namely, ‘Chandigarh Quota’ and ‘All India Quota’. In that regard, a representation by the petitioners was also sent on 17.7.2009 (P-3). On 23.7.2009, at the time of hearing learned senior counsel for the petitioners also placed on record a computer down-loaded hard copy of information (Mark-‘A’) wherein the Admission Committee has notified that the counselling would be held according to the original joint admission brochure. 12. In the short reply filed on behalf of respondent No. 1 it has been pointed out that in the ‘PEC’ 50% seats are filled on ‘All India Quota’ basis and 50% from ‘U.T. Pool’ candidates, whereas in ‘CCET’ 85% seats are filled from ‘U.T. Pool’ candidates and 15% from ‘All India Quota’. In the ‘PEC’ 20 seats in all are reserved for the sons/daughters/spouses of military/para-military forces and 12 seats in all are reserved for the said category in ‘CCET’. It has further been asserted that uptil 2007 seats reserved under defence quota category were filled from both ‘All India Quota’ and ‘U.T. Pool Quota’ separately by keeping the admission restricted to 50% quota in each pool. The position was similar in ‘CCET’ uptil 2009. 13. On 12.6.2007, the Minister of Defence, Union of India, addressed a communication to the Administrator, U.T. Chandigarh, 7 C.W.P. No. 10885 of 2009 stating that in certain States/UTs admission into colleges/institutions were restricted to those students only who were either domicile of that State/UT for a minimum specific period and/or to those who have passed both 10th and 12th standard examination from an institution/school located in that State/U.T. It was also pointed out that the wards of armed forces personnel are unable to fulfill the said requirements for admission because of arduous nature of job of their parents which involve frequent transfers/postings. It was, thus, requested to do away with these restrictions (R-1). In para 6 of the reply it has been mentioned that keeping in view the reference dated 12.6.2007 (R-1), the Chandigarh Administration has issued a letter dated 14.9.2007 conveying its decision to waive off the domiciliary restrictions of minimum stay in the States/UTs and condition of passing 10th and 12th standard examination from the same State/Union Territory in respect of the wards of serving defence personnel/ex- servicemen (R-2). It has been claimed that on the basis of letter dated 14.9.2007, the ‘PEC’ has abolished the ‘U.T. Pool’ defence quota after 2007 and ‘CCET’ though indicated the ‘U.T. Pool’ seats and ‘All India Pool’ seats separately for the year 2009 but it was indicated in the note in the Joint Admission Brochure that these seats would be clubbed and filled up without assigning any quota of 50% each on the basis of joint counselling. 14. It has, however, been admitted that the matter was again considered and clarification dated 15.7.2009 has been issued by the Chandigarh Administration (R-3). In para 9 it has been mentioned 8 C.W.P. No. 10885 of 2009 that the matter was again discussed in the meeting at the level of the Adviser to the Administrator, UT Chandigarh, wherein the Director, Punjab Engineering College has informed that the admission can only be carried out in accordance with the terms and conditions of the Prospectus or the Joint Admission Brochure and no deviation could be made therefrom. Accordingly, on 20.7.2009, again a letter has been issued advising the Director, PEC to complete the admission process strictly in accordance with the terms and conditions of the Joint Admission Brochure and from the next academic session, admission would be regulated separately for ‘U.T. Pool’ quota and ‘All India Pool’ quota’ (R-4). 15. On 4.8.2009, during the course of arguments, Mr. Anupam Gupta, learned counsel for respondent No. 1 also brought to our notice three communications dated 24.7.2003, 9.9.2003 and 12.9.2003 relating to the proposal for granting ‘Deemed University’ status to the Punjab Engineering College, Chandigarh. The aforementioned communications are taken on record as Mark ‘B’, ‘C’ and ‘D’ respectively. 16. On 4.8.2009 itself, Mr. R.S. Bains, learned counsel for PEC-respondent No. 3 filed a written statement, which is also taken on record, taking the stand that it has followed the principle of doing away separate quota for ‘Sons/Daughters/Spouses of Military/Paramilitary Personnel’ between ‘UT Pool Quota’ and ‘All India Quota’. Accordingly, the domiciliary restriction of minimum stay in the State/UTs and condition of passing 10th and 12th standard 9 C.W.P. No. 10885 of 2009 examinations from the same State/UT in respect of wards of serving defence personnel/ex-servicemen, seeking admission in the institutions of Union Territory, Chandigarh, has been abolished. Accordingly, Joint Admission Brochure for the Session 2009-10 was amended, which is made clear by the asterisk (‘*’) underneath the table of distribution of seats, appearing at page 22 of the Information Brochure. Respondent No. 3 has also furnished a list of 832 candidates arranged in order of tentative merit (R-3/2). The events leading to issuance of letter dated 15.7.2009 by the Chandigarh Administration directing that the admissions be made as per the reservation of seats under the ‘UT Pool Quota’ and ‘All India Quota’ of seats in respect of the ‘sons/daughters/spouses of military/paramilitary personnel have been detailed. Reference has also been made to the letter dated 20.7.2009 (R-3/6) advising that the admissions for current session be made strictly in accordance with the provisions of the Admission Brochure. Accordingly, decision was taken to hold counselling on 30.7.2009 after issuance of advertisement in leading newspapers (R-3/7). A reference has also been made to the stay order passed by this Court on 29.7.2009 wherein the counselling slated for 30th was ordered to be deferred till further orders. 17. Mr. H.S. Mattewal, learned senior counsel has vehemently argued that a bare look on the table at page 22 of the Information Brochure ‘Section: B’ shows that seats have been divided on the basis of 50% quota in each category, namely (a) Chandigarh 10 C.W.P. No. 10885 of 2009 Quota; and (b) All India Quota. According to the learned counsel for ‘Chandigarh Quota’ the only stipulation made is that the candidates must have passed their qualifying examination of +2 standard from schools/colleges located in UT Chandigarh and recognised by the Chandigarh Administration. He has drawn our attention to Item at Sr. No. (ii) under category (a) Chandigarh Quota pertaining to sons/daughters/spouses of military/paramilitary personnel, which has been allocated 5% of the seats and 10 seats have been given to the Chandigarh Quota. Likewise in the quota underneath ‘All India Quota’, Item No. (iii) specify 5% reservation in favour of the ‘All India Quota’ allocating 10 seats. He has further argued that separation of these quotas by asterisk (‘*’) to club these seats in fine print is astonishing and presents an affront to the equality clause, which has been interpreted to mean that both these quotas are merged and the counselling has to be held on the basis of joint merit for these 20 seats. 18. Mr. Mattewal has then argued that the Chandigarh Administration by letter dated 15.7.2009 (P-2) in unmistakable terms accepted that clubbing of quota by PEC or CCET was ‘patently wrong’ and it was required to be calculated separately for ‘UT Pool Quota and ‘All India Quota’ @ 50% each. Learned counsel has submitted that there is no law that prospectus once issued cannot be modified by the State authorities, especially when in the present case the prospectus is not in accordance with the direction issued by the Chandigarh Administration. In that regard, he has placed reliance on 11 C.W.P. No. 10885 of 2009 a judgment of Hon’ble the Supreme Court in the case of Rajiv Kapoor v. State of Haryana, (2000) 9 SCC 115. According to the learned counsel Full Bench judgment of this Court rendered in the case of Amardeep Singh Sahota v. State of Punjab, 1993(2) PLR 212, has been watered down by Hon’ble the Supreme Court in Rajiv Kapoor’s case (supra). To buttress his stand, learned counsel has drawn our attention to paras 10 and 11 of the judgment wherein it has been held that modification in the prospectus could be introduced and the prospectus with mistakes cannot be the sole basis for making admissions. He has further argued that mistake does not confer any right on any party and can be corrected. In that regard reliance has been placed by the learned counsel on para 23 of the judgment of Hon’ble the Supreme Court rendered in the case of Union of India v. S.R. Dhingra, (2008) 2 SCC 229. He has maintained that the prospectus cannot prevail over the Government instructions. He has also placed reliance on another judgment of Hon’ble the Supreme Court rendered in the case of Dolly Chhanda v. Chairman, JEE, (2005) 9 SCC 779, and argued that any technicality should not come in the way of equality clause enshrined in Article 14 of the Constitution. According to the learned counsel, Hon’ble the Supreme Court redressed the grievance of Dolly Chhanda where she possessed the necessary qualification on the last date fixed for filing application or for a post for availing benefit of reservation or weightage. Accordingly, Dolly Chhanda was granted relief as she possessed the qualification but could produce the certificate only at the time of 12 C.W.P. No. 10885 of 2009 interview instead of attaching the same with her application. 19. Another submission made by the learned counsel is that the candidates should not suffer on account of conflicting provisions made in the prospectus by their author. Placing reliance on a Division Bench judgment of this Court rendered in the case of Deepak Makkar v. Kurukshetra University, Kurukshetra, 2001(8) SLR 74, learned counsel has argued that once the condition of the brochure has been relaxed then there is no going back from that situation by refusing to admit the candidates. Learned counsel by placing reliance on para 5 of the judgment of Hon’ble the Supreme Court rendered in the case of P.K. Goel v. U.P. Medical Council, (1992) 3 SCC 232, has argued that no indefeasible and vested right would accrue merely on the basis of participation in the examination. He has urged that before admission of any candidate in the category under dispute the mistake can be rectified by the authorities any time prior to the admissions. 20. While concluding his arguments Mr. Mattewal has stressed that after rectifying the mistake the Chandigarh Administration cannot go back by issuing yet another letter on 20.7.2009 restoring the mistake and correcting it only from the next academic session, sermonizing the Admission Committee for admitting the candidates under the defence quota in accordance with the prospectus, which by asterisk mark given in the fine print, has abolished the quota. 21. Mr. Anupam Gupta, learned Senior Standing Counsel for 13 C.W.P. No. 10885 of 2009 Chandigarh Administration-respondent No. 1, has argued that in order to avoid legal complications letter dated 20.7.2009 (R-4) was issued and the admissions were required to be made for current session strictly in accordance with the provisions of the Admission Brochure. Learned counsel has argued that once it is conceded as per the arguments of the learned counsel for the petitioners that the Admission Brochure can be amended by the Chandigarh Administration then it necessarily follows that the letter dated 20.7.2009 would also be binding on everybody and admissions have to be held in accordance with the provisions of the prospectus. 22. Mr. Anupam Gupta also referred to the PEC Information Booklet Volume-1 and in all fairness drew our attention to the letter dated 24.7.2003 (Mark ‘B’) on the subject of proposal for granting Deemed University status on PEC. According to para 1(b) of the said letter, it is stipulated that 50% of the seats at the undergraduate level were to be filled through a national level test. He has also drawn our attention to letters dated 9.9.2003 and 12.9.2003 (Mark ‘C’ & ‘D’ respectively) addressed by the Home Secretary of the Chandigarh Administration to the Secretary, Ministry of Human Resource Development, Department of Secondary and Higher Education, New Delhi, which are to the same effect. Accordingly, the Deemed University status was conferred on PEC vide notification dated 16.10.2003, which is taken on record as Mark ‘E’. 23. Mr. R.S. Bains, learned counsel for PEC-respondent No. 3 has argued that the letter dated 14.9.2007 (R-3/1), issued by the 14 C.W.P. No. 10885 of 2009 Home Department of the Chandigarh Administration, asking every institution including respondent No. 3 to waive off the domiciliary restriction of minimum stay and condition of passing 10th and 12th standard examination from U.T. Chandigarh, cannot be ignored and accordingly Admission Committee had incorporated the aforesaid condition by marking the quota for defence personnel with asterisk and clubbed the same. He has also pointed out that deferring of counselling has caused inconvenience to the defence personnel who have come from various parts of the country. He has also apprised the Court that the next counselling is now scheduled to be held on 17.8.2009 in respect of admissions to BE courses of the colleges of UT Administration. 24. We have bestowed our thoughtful consideration on the rival contentions of the parties. In order to appreciate the controversy it would be necessary to refer to the conditions which were imposed and accepted at the time of conferring Deemed University status on PEC. The University Grants Commission (UGC) has imposed specific conditions, as is reflected in the letter dated 24.7.2003 (Mark ‘B’), issued by the Government of India, Ministry of Human Resource Development. It would be profitable to read those conditions:- “(a) The governance structure of the Institute should be similar to that of IITs. The Chairman of the Board of Governors should be an academician or an industrialist. 15 C.W.P. No. 10885 of 2009 (b) 50% of seats at UG level and 100% at PG level may be filled through a national level test. (c) The recruitment of faculty may be based on IIT pattern as has been done in NIT institutions. Also, the Institute should have a flexible cadre promotion system. (d) The first Director of the institute should be an eminent person preferably from the IIT system.” 25. The aforesaid conditions were concurred in by the Chandigarh Administration in its letter dated 9.9.2003 (Mark ‘C’), addressed to the Ministry of Human Resource Development, Department of Secondary and Higher Education, New Delhi, as is evident from the following para:- “ The Administration also concurs with the view that the governance structure of the Institute should be similar to that of IITs and the Chairman of the Board of Governors should be an academician or an industrialist of eminence. Regarding the filling up of 50% seats at UG level on All India basis through a National Level Test, Chandigarh Administration has already approved this. 100% seats at PG level are already being filled on All India basis. Recruitment of faculty and a flexible cadre promotion system would also be done on the IIT pattern as suggested by the UGC. The Administration also concurs with the view that the first Director of the Institute should be an eminent person 16 C.W.P. No. 10885 of 2009 preferably from the IIT system. The name of Punjab Engineering College may also be retained by the Institute as suggested by your Ministry.” 26. If we view the table in the Information Brochure at page 22, which has already been reproduced in the paras 6 and 7 above, it answers the aforesaid condition except the part made distinct by the asterisk mark. The asterisk has been explained obviously with a reference to the letter dated 14.9.2007 in its reply by PEC-respondent No. 3 that it has waived off the domiciliary restriction of minimum stay in the State/UTs and condition of passing of 10th and 12th standard examination from the UT Chandigarh in respect of wards of serving defence personnel/ex-servicemen seeking admission in the institutions in UT Chandigarh. 27. The aforesaid stand of PEC is further required to be viewed in the light of letter dated 15.7.2009 (P-2) where the Administration has taken categorical stand that the letter of the Administration dated 14.9.2007 has been misinterpreted in respect of the quota meant for defence personnel under ‘UT Pool quota’ and ‘All India quota’ by clubbing it together. The Administration has termed it as ‘patently wrong’ and sought to rectify the mistake by emphasising that the reservation of seats under this category was required to be calculated separately for ‘UT Pool Quota’ and ‘All India Quota’. However, the Administration relented by issuing another letter dated 20.7.2009 (R-4) by