WP (C) 9978 of 2009 Page 1 of 40 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P(C) No.9978/2009 % Date of Decision: 04.09.2009 Rohan Tomar …. Petitioner Through Mr.Rajeev Bansal, Advocate. Versus University of Delhi …. Respondent Through Mr.Mohinder J.S. Rupal, Advocate for the respondent No.1. Mr.Pawan Kumar Aggarwal, Advocate for the respondent No.2. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ANIL KUMAR, J. (ORAL) * 1. The petitioner seeks a direction to the respondent to grant him admission under the sports quota on the ground that the marks awarded to him for admission under the sports quota are the same as that to Sh.Mibom Tako who has been given admission whereas he has been denied admission though the rules did not provide how to resolve such a tie. WP (C) 9978 of 2009 Page 2 of 40 2. Brief facts to comprehend the disputes raised by the petitioner are that petitioner passed higher secondary examination from Sardar Patel Vidyalaya in March, 2009 and applied for admission for B.Com (Hons) course in Delhi University by filling common admission form. The petitioner also filed a separate admission form under the sports quota for admission to Shri Ram College of Commerce, respondent No.2. 3. The petitioner also submitted registration form for sports trial 2009-2010 with respondent no.2 also known as `SRCC‟. The admission procedure/guidelines and eligibility for sports trials were detailed in the registration form. Relevant clause is as under:- “ Admissions under Sports quota shall be made on the basis of level of competency of candidate in the Sport- determined only of the candidates who have achieved distinctions in Sports during the last three years. Trials and verification of Sports Certificates/Documents. Candidates must present themselves physically for Verification of Sports Certificates/Documents.” 4. The petitioner contended that he was called for the sports trial on 16th June, 2009 at St.Xavier‟s School in which he participated and a select list of 7 candidates for football was displayed on 25th June, 2008. The short listed candidates were called to report on 26th June, 2009 for personal interview along with the relevant original sports and academic WP (C) 9978 of 2009 Page 3 of 40 certificates. For the alleged interview on 26th June, 2009 no marks were given and only the certificates of the candidates were checked. List for selection on the basis of sports performance had already been put up on 25th June, 2009. 5. On the basis of the sports trial, the petitioner was awarded 11.33 points for his performance and 10 points on the basis of his testimonials. The petitioner was thus awarded 21.33 points. The petitioner has asserted that another candidate named Sh.Mibom Tako was also awarded 21.33 points which was apparent from the select list which was displayed on the notice board on 25th June, 2009. The grievance of the petitioner is that though the petitioner obtained 21.33 points and Sh.Mibom Tako also obtained 21.33 points, but the petitioner was placed at serial No.4, whereas Sh.Mibom Tako was placed at serial No.3 and later on given admission. On 25th June, 2009 there was no criteria to place petitioner below Sh. Mibom Tako. 6. The petitioner has contended that for eventuality that two candidates scoring equal marks in the sports quota there were no guideline, norms or rules. Therefore since he also secured 21.33 points as Sh.Mibom Tako, the respondents ought to have admitted both of them, however, the respondents have given admission to Sh.Mibom Tako and the admission has been denied to the petitioner. The learned WP (C) 9978 of 2009 Page 4 of 40 counsel for the petitioner contended that cut off percentage is fixed by the college for admission on the basis of merit in the qualifying examination and all the students who have marks above the cut off percentage are admitted even though on account of such admissions, the number of students admitted far exceed the sanctioned strength of the students. Petitioner also contended that the performance of the petitioner in the field trial was better than the performance of Sh.Mibom Tako, however, he has been given more marks on the basis of testimonials. In the circumstances, it is also pleaded by the petitioner that since his performance was better in the field trial which is almost equivalent to an entrance examination, he should have been preferred in place of Sh.Mibom Tako and in any case he should have also been granted admission. 7. The petitioner, therefore, made a representation against not granting him admission on 27th June, 2009, however, his representation had not been replied. Another representation was made by the petitioner through his father on 29th June, 2009 to the Director of Sports pointing out that in case of such a tie, more weightage should be given to the performance of the student in the sports trials which are conducted by the College. The petitioner has also contended that the respondent should have admitted petitioner even though that would have led to granting admission to more students than the advertised WP (C) 9978 of 2009 Page 5 of 40 seats under the sports quota as for admission on merit on the basis of qualifying examination all the students above cut off percentage are admitted far above the sanctioned strength. It is contended that in fact on some occasions the respondent No.2 college has admitted more students in number under the sports quota than the declared number of seats under the sports quota. The petitioner also contended specifically that during the academic year 2008-09, the seats under the sports quota were 24, however, for the current academic year 2009-10 the seats under the sports quota have been reduced to 20 although the sanctioned intake is 551. It is further asserted that with the upper limit of 5% admission under the sports quota, on the basis of sanctioned intake can offer up to 28 seats, however, no reason has been disclosed for not granting admission to the petitioner. 8. The petitioner in the facts and circumstances challenged the action of the respondents contending inter-alia that placing Sh.Mibom Tako at serial No.3 and placing the petitioner at serial No.4 on 25th June, 2009 was without any logical rational and in consonance with the objective of granting admission under sports quota and without any authority, reason or rationale and, therefore, the action of the respondents is totally arbitrary. In the circumstances, it is contended that treatment given to the petitioner is not fair and is arbitrary and is in violation of his fundamental rights. Since there are no guidelines, WP (C) 9978 of 2009 Page 6 of 40 norms and/or rules for such an eventuality, the respondents are liable to give admission to the petitioner also and cannot justify their action on the basis of any other criterion adopted by them later on which is also an attempt by them to justify their action illegal action in placing the petitioner below the other candidate having scored the same marks in the merit list declared on 25th June, 2009. The alleged criteria was evolved in the sports committee meeting held on 26th June, 2009, though the sports committee was competent to frame rules or modify the rules for admission under the sports quota. 9. The petitioner further asserted that the petitioner should have been given preference over other candidate on the basis of sports trials which were conducted by the respondent no.2 college. The plea of the petitioner is that since under the sports quota the admission was based on the competency level of the candidates, therefore, preference should have been given to a candidate whose performance was better at the trials taken by the respondent no.2. The petitioner also contended that the sports committee which has Principal of the College as its members, could not have decided any criteria, even if it had powers to do, in absence of Principal of the College. It is also argued vehemently on behalf of the petitioner that after the merit list was declared on the basis of performance on 25th June, 2009, the respondents could not have devised any other criteria and could not have changed the rules of WP (C) 9978 of 2009 Page 7 of 40 the games and has relied on 105 (2003) DLT 65, Bank of Baroda Employees Union (Regd.) & Others v. Bank of Baroda; (2008) 7 SCC 11, Himani Malhotra v. High Court of Delhi and 1994 Supp (2) SCC 131, D.C. Aggarwal v. State Bank of India and others. 10. The writ petition is contested by the respondents. A counter affidavit was filed on behalf of respondent No.2 college contending inter- alia that the sports quota provided not more than 5% of total number of seats separately both in Honours and B.A for first year of the under graduate courses. The respondent No.2 also relied on rules given in Information bulletin of 2009 relating to sports quota admission which are as under:- “4.7.1 Procedure for admission under Sports Quota Not more than 5% of the total number of seats separately both in Honours and B.A (for 1st year of the Undergraduate Courses) except in Engineering and those other courses where there is an admission test or where there are centralized admissions, be offered for admissions on the basis of sports and co-curricular distinctions. The admission on the basis of the sports shall be finalized by each college on the recommendation of a Committee consisting of the Principal, Director of Physical Education and some teachers and students associated with the sports. This committee shall be constituted for the purpose by the respective colleges. Dates for filling applications and date for admission on sports basis shall be notified by the College and displayed on Notice boards. WP (C) 9978 of 2009 Page 8 of 40 The Sports Admission Committee shall screen/evaluate the applications, hold interviews and trials on the ground and recommend admission on the basis of sports, as per Evaluation Chart given below. All sports certificates must be duly verified by the Head of the Institution last attended and by the Issuing Authority. All applications along with sports certificates may also be sent to the Conveners of the University Sports Admission Committee who will also scrutinize these applications. The sports certificates should be accompanied by a photograph of the candidate duly attested by the respective issuing Authority and Head of Institution last attended. Any student submitting false/forged/fake certificate will be debarred from admission to any course in any college for three years. If he/she is admitted, his/her admission will be cancelled. Such cases will be notified to all colleges. The level of competence in sports will be determined only if the candidate has achieved distinctions in spots during the last 3 years. Following is the order of preference for admission in the under graduate courses. Preference will be given to those sports activities in which Delhi University Inter-college and Inter-University Competition are held:- a. Participated by representing India in any event/game at the International level (Certificate to be submitted from the Ministry of Sports/Sports Federations). b. Participated in any event/game in Junior National Championship (Certificate to be submitted from the National Federation of concerned game/s). c. Participated in the Winner/Runner-up teams and secured 1st, 2nd or 3rd position in individual even in National School Game/s (Certificate to be submitted from the National School Games Federation/Directorate of Education of the concerned State). WP (C) 9978 of 2009 Page 9 of 40 d. Participated in the All India Rural Sports and Women Sports Festival securing 1st, 2nd or 3rd position in individual even or a team (Certificate to be submitted from National Institute of Sports). e. Participated and secured 1st, 2nd or 3rd position in Inter Zonal Tournament or 1st,2nd and 3rd position in Individual Even (Certificate to be submitted from Director of Education of the concerned State). Note: the level of competition in case of Sainik School, Kendriya Vidyalaya and Public School may be considered along with the last category i.e (e) Participated and secured 1st, 2nd or 3rd position in Inter-Zonal Tournaments or 1st, 2nd or 3rd position in individual Events. Regarding Extra-curricular activities, it is for the college concerned to decide. A merit list of the students selected for admission to various courses on the basis of sports should be duly displayed on the College Notice Board. All admissions on the basis of sports must be completed by 16th July, 2008. The list of students admitted on the basis of sports should also be endorsed to the Convenor, University Sports Admission Committee. Proper record of the candidates admitted under this category shall be maintained by the College so that the same is readily available, if required by the University. The applicant as per his/her age must be eligible to participate in Inter-Varsity Competitions during the next two years and should not be employed Part-time/Full-time anywhere. A committee at the University level has been set up to scrutinize and supervise all admissions made on sports basis in Colleges and to look into my complaint. WP (C) 9978 of 2009 Page 10 of 40 “UNIVERSITY OF DELHI” Evaluation Chart for Sports Men/Women to prepare merit on the basis of Sports Certificates Under-Graduate Course A B C D E Representation of India in International Meet during last three years Participation in the Junior National Championships during last three years Participation in National School Games during last three years Participation in All India Rural Sports/Women Festival during last three years Participation in the Inter- Zonal Tournament during last three years 1st 13 1st 10 1st 7 1st 4 1st 1 2nd 14 2nd 11 2nd 8 2nd 5 2nd 2 3rd 15 3rd 12 3rd 9 3rd 6 3rd 3 11. The respondent no.2 admitted that there was a tie between the petitioner and Sh.Mibom Tako. The respondent No.2, however, contended that the sports committee in its meeting held on 26th June, 2009 decided that the question of tie has to be decided on the basis of marks obtained by two students namely Sh.Mibom Tako and petitioner on the basis of 12th class examination passed by them. It is contended WP (C) 9978 of 2009 Page 11 of 40 that Sh.Mibom Tako had obtained more marks than the petitioner and, therefore, he was preferred for admission under the sports quota. 12. The respondent No.2 also contended that it sought a clarification from Delhi University/respondent No.1 and a clarification dated 3rd July, 2009 was sent by the University. The clarification sent by the University dated 3rd July, 2009 is as under:- “Please refer to your letter No.SRCC/PO/23/264 dated July 2, 2009. In this regard I would like to state that the Sports Council and the University have no guidelines laid down for breaking the tie in sports cases. The college may use its direction. However, if sufficient number of seats are available both the candidates may be considered without putting to disadvantage any other candidate in the sports category.” 13. The respondent No.2 contended that though the University had clarified that if the seats are available both the candidates may be considered without putting to disadvantage any other candidate in the sports category, however, sports committee of the college in its meeting held on 9th July, 2009 reiterated the decision taken on 26th June, 2009 and it was maintained that Sh.Mibom Tako be admitted under the sports quota. However, the sports committee modified the criteria for breaking the tie and held that instead of taking all marks in the qualifying examination, marks in best of four subjects including a WP (C) 9978 of 2009 Page 12 of 40 language be considered for such an eventuality and this criteria be also used in future. The principal of the college was not present in this meeting of the sports committee also. It was contended that the decision was taken in view of the limited number of seats available for admission under the sports quota in the discipline of football. It is contended that the decision taken by the committee is bonafide and not assailable under Article 226 of the Constitution of India. 14. The college later on filed additional affidavit giving details of intake of students in 2009-2010; 2008-2009 and 2007-2008 which far exceeds the sanctioned intake. The additional affidavit did not disclose as to how the admission of students could far exceeds the sanctioned intake. The college did not disclose as to what is the power of the sports committee and how the sports committee could take decision and modify the rules for admission under the sports committee and how the alleged sports committee could take decision in absence of the Principal of the College who is an integral part of the committee. The affidavits filed by the college did not disclose on what basis in the merit list put up on the notice board on 25th June, 2009, the petitioner was put below the other candidate Mr. Mibom Tako, though both of them had scored same marks. WP (C) 9978 of 2009 Page 13 of 40 15. The respondent no.1 has also opposed contention that the University of Delhi is constituted under the Act of Parliament and Academic Council is one of the bodies of the University which in its meeting dated 17th May, 1987 had laid down the procedure for admission on the basis of sports in colleges. It was held that not more than 5% of the total number of seats, separately in Hons and Pass Course be offered for admission on the basis of sports and other co- curricular activities. Regarding respondent no.2 it has been admitted that the total seats are 551 and 5% of 551 shall be 27.55 and therefore the respondent no.1 has contended that the maximum seats which can be filled in sports category are 27. It is also contended that the seats for discipline of Football are 3. 16. The respondent no.1 also pleaded that the Sports committee of the college comprised of Principal, Director of Education, some teachers and students, however, exact constitution of sports committee has not been given by the respondent no.1. The respondent no.1 contended that the decision of the sports committee to admit a student in case of tie on the basis of performance in qualifying examination was considered by all the concerned authorities including the Vice Chancellor and that decision has been approved and therefore, the admission cannot be given to the petitioner and therefore, the writ petition to be dismissed. The respondent no.1 has also given the constitution of academic WP (C) 9978 of 2009 Page 14 of 40 council. It is contended that there is no illegality in the decision taken not to admit the petitioner and in case of academic matters the Courts are refrained from interference with the matters and there is no illegality in the decision not to admit the petitioner. The respondent no.1, however, sought to withdraw an admission made regarding the number of seats in the sports quota deposed categorically by the Acting Vice Chancellor in its affidavit by contending that the number of seats shall be only 20 on the basis of sanctioned strength of 405 and filed an application for withdrawal of statement made on oath and substitute the same by another affidavit. The application of the respondent no.1 was dismissed and the respondent no.1 was not allowed to withdraw a statement made on oath. Learned counsel or the respondent no.1 also relied on AIR 1987 Supreme Court 1154, Narender Bahadur Singh and others v. Gorakhpur University and another and (2001) 8 SCC 427, Medical Council of India v. Sarang and others and also relied on Mumtaz Post Graduate Degree College Vs Vice Chancellor, (2009) 4 SCC 516 and Dr. Reema Chawla Vs University of Delhi, (104) (2003) DLT 868 17. The learned counsel for the parties have been heard at length and writ petition, counter affidavits and documents filed and relied on by the parties have been perused by this Court. Admittedly the petitioner and the candidate placed 3rd in the select list, who has been given WP (C) 9978 of 2009 Page 15 of 40 admission, had scored the same points for admission under sports category by the respondent no.2. Admittedly, the rules relating to admission on the basis of Sports Quota as provided in Information Bulletin 2009 contains no provision as to the procedure to be followed in case of a tie arising between two or more candidates scoring equal points. However the rules specifically provide that the Sports Admission Committee should recommend admission on the basis of sports only. The „Preliminary Application Form for Admission on the Basis of Sports” issued by the Department of Physical Education of the respondent college also clearly stipulates that the admissions under sports quota would be made on the basis of level of competency of candidates in the sports (Clause 9 of General Instructions to candidates about admission procedures, guidelines and eligibility). Therefore, it can be safely inferred that merit in the sports field alone is contemplated as the criteria for admitting a student under the sports category. If that be so, then in the event of there being a tie between two candidates for a seat under the sports quota in a particular discipline, the criteria to be adopted for giving preference to one candidate over the others for admission under the sports quota should also bear some nexus with the level of competency of the candidates in the sports only and not any other criteria unless no criteria pertaining to sports can be carved out or adopted for resolving such a situation. After all the purpose of having a sports quota for admission to academic institutions is to promote and WP (C) 9978 of 2009 Page 16 of 40 motivate excellence in sports so that the candidates admitted under sports quota would bring academic laurels to college. 18. The respondent no.2 has filed a copy of the minutes of the sports committee meeting dated 26th June, 2009, which shows that it comprised of five persons. From the minutes it is clear that the Principal of the respondent no.2 did not attended that crucial meeting. This fact has not been disclosed in the affidavit of the respondent no.2. The respondent no.1 has also proceeded in considering the decision of the sports committee on the premise that the principal of the college was present in the sports committee meeting dated 26th June, 2009 as the respondent no.1 has filed the affidavit through its acting registrar deposing that the principal of the college was a part of the sports committee and so he must be present. The point for consideration is that in field trials the petitioner was given 11.33 marks and Mibom Tako was given 10.33 marks. The petitioner was given 10 marks for performance in the past on the basis of testimonials whereas the Mibom Tako was given 11 marks on the basis of testimonials and both were given 21.33 marks prior to 26th June, 2009, when the alleged sports committee meeting had taken place fixing the criteria to take the performance in the qualifying examination to resolve the tie. Though this criteria according to the respondents was fixed on 26th June, 2009, however, annexure P-2, the merit list was put up by the respondent WP (C) 9978 of 2009 Page 17 of 40 no.2 prior to 26th June, 2009. If the merit list had been finalized and put on the notice board prior to 26th June, 2009, then how the petitioner had already been put at serial no.4, whereas Mibom Tako was placed at serial no.3 higher to the petitioner has not been explained in the counter affidavits filed by the respondents. Annexure P-2 shows that it was issued prior to 26th June, 2009 as it directed