Delivering a significant judgement [Nishit Sharma (Minor) S/O Sri Prabhat Sharma Versus Vice Chancellor, AMU and others in CIVIL MISC. WRIT PETITION NO.61316 OF 2008; Disposed on 6/02/2009] that is bound to have far reaching consequences for Aligarh Muslim University Hon’ble Justice Rakesh Tiwari of the Allahabad High Court observed that the counsel for the respondent University (Aligarh Muslim University) could not show application of any judicious mind in “pick and choose" method adopted by him (Prof. P K Abdul Azis, Vice Chancellor, AMU) thus rendering the discretion exercised by the Vice-Chancellor unregulated and absolutely capricious and lacks reason.
Justice Tiwari noted that “Considering all the aforesaid aspects of the matter I am of the consideration that the petitioner has been discriminated by the Vice-Chancellor, who has exercised the powers delegated upon him by the Academic Council vide its resolution dated 31.1.92. The petitioner having obtained 39% marks under the category of Ward of Children of Alumni was entitled to be admitted in the University particularly when the last candidate admitted in the aforesaid category had obtained 35% marks in the entrance test. (It is to be noted that in the instant case all the information pertaining to the case was obtained through the use of Right to Information Act by the petitioner.)
Delivering his judgement Justice Towari directed that the “Vice-Chancellor shall grant admission to the petitioner irrespective of any other consideration in class XI Science ("PCB") stream forthwith within a period of one week from the date of production of a certified copy of this order.”
However, it is learnt that AMU has decided to go in for special appeal in the matter.
For complete correspondence related to similar, please do visit www.rtigroup.org
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Justice Tiwari noted that “Considering all the aforesaid aspects of the matter I am of the consideration that the petitioner has been discriminated by the Vice-Chancellor, who has exercised the powers delegated upon him by the Academic Council vide its resolution dated 31.1.92. The petitioner having obtained 39% marks under the category of Ward of Children of Alumni was entitled to be admitted in the University particularly when the last candidate admitted in the aforesaid category had obtained 35% marks in the entrance test. (It is to be noted that in the instant case all the information pertaining to the case was obtained through the use of Right to Information Act by the petitioner.)
Delivering his judgement Justice Towari directed that the “Vice-Chancellor shall grant admission to the petitioner irrespective of any other consideration in class XI Science ("PCB") stream forthwith within a period of one week from the date of production of a certified copy of this order.”
However, it is learnt that AMU has decided to go in for special appeal in the matter.
For complete correspondence related to similar, please do visit www.rtigroup.org
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For complete text of the Writ filed at Allahabad High Court as well as the judgement, please scroll down
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The complete Writ filed at Hon'ble Allahabad High is given below
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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
****************************
CIVIL MISC. STAY PETITION NO.------------------------------ OF 2008
(Under chapter XXII Rule 1 of the High Court Rules)
On Behalf of Petitioner
IN
CIVIL MISC. WRIT PETITION NO. -------------------------------OF 2008
(Under Article 226 of the Constitution of India)
District Aliqarh
Nishit Sharma (Minor)
S /0 Sri Prabhat Sharma, through his next Friend/ Father Prabhat Sharma S/o Late M.L. Sharma R/o
1/14 Tar Ka Nagla, Gurudwara Road, Aligarh.
-----------Petitioner
Versus
1- Vice Chancellor, Aligarh Muslim University, District Aligarh.
2- Registrar, Aligarh Muslim University, District Aligarh.
3- Controller of Examination Aligarh Muslim University, District Aligarh.
4- Assistant Controller / Central Public Information Officer (Admission) Aligarh Muslim University, District Aligarh.
5- Deputy Controller/Appellate Authority (Admission), Aligarh Muslim University, District Aligarh.
----------------- Respondents
To,
The Hon'ble the Chief Justice and his other companion Judges of the aforesaid Court.
The humble writ petition of the above mentioned petitioners most respectfully showeth as under:
1. That the petitioner has not filed any other writ petition previously for the cause of action and relief sought in this writ petition before thisHon'ble Court or Lucknow Bench of this Hon 'ble Court and this is the first writ petition of the petitioner.
2. That the petitioner further declare that he has not received caveat any of the respondents or from any person till preparation of the instant writ petition.
3. That, the petitioner is a minor and hence he is filling the present writ petition through his next friend / father Prabhat Sharma.
4. That, by means of the present writ petition, the petitioner is seeking mandamus commanding the respondents to admit him in 10+2 Physics, Chemistry and Biology (PCB) stream.
5. That, the brief facts of the case that the petitioner has passed his High School in the year 2008 (Academic Session 2008-08) from Delhi Public School, Aligarh (CBSE) and secured 92% marks. True copy of the mark sheet of the petitioner is being filed here with and marked as Annexure No.1 to this writ petition.
6. That, in pursuance to the advertisement issued by the respondents inviting applications from interested candidates to take admission in 10+2 (Aligarh Muslim University) the petitioner submitted his form completing all the required formalities and opting Physics, Chemistry & Biology as his first choice and Physics, Chemistry & Math as his second choice (PCM).
7. That, a combined entrance examination for admission in 10+2 was conducted and the petitioner took the examination but his name did not find place in the list of successful candidates declared by the respondents.
8. That, as the petitioner had secured 92% marks in his High School he was hopeful that he will be selected Physics, Chemistry & Biology stream for taking admission in 10+2 but after the results were declared he tried to enquire matter and on 4-9-2008 under Right to Information Act seeking information about the marks secured by him as well as cut of marks secured by the selected candidates. True copy of the application dated 4-9-2008 and true copy of the admit card of the petitioner are being filed here with and marked as Annexure No.2&2A to this writ petition.
9. That, in reply to the application dated 4-9-2008 the Aligarh Muslim University send a reply on 24-9-2008 indicating therein that the marks secured by Nishit Sharma (Roll No. 299406) Physics, Chemistry & Biology were 39 and marks secured in examination of last candidates selected mGeneral Category was 47.75. True copy of the reply by Assistant Controller Admission dated 24-9-2008 is being filed here with and marked as Annexure No.3 to this writ petition.
10. That, after going through the reply dated 24-9-2008 the father of the petitioner was not satisfied and he made a application under Right to Information Act asking for complete details because as per his information the reply dated 24-9-2008 by the respondents was not correct. True copy of the application in this regard dated 1-10-2008 by Prabhat Sharma to Deputy Controller Admission/ Appellate, Aligarh Muslim University, Aligarh is being filed here with and marked as Annexure No.4 to this writ petition.
11. That, in reply to the application dated 1-10-2008 made by Prabhat Sharma the Deputy Controller/Appellate Authority Admission given by them earlier in reply dated 24-9-2008 is correct. It is pertinent to point out here that there are two modes of admissions in Aligarh Muslim University the first mode is (as far as 10+2 is concern is a combined entrance examination) and successful candidates as per their choices are given admission in different streams the other mode is a special category and under this special category students who do not get admission on merits are given admission under these categories and in this regard the petitioner is bringing on record a copy of table III wherein special categories have been defined. Section of society as Identified in NEP 1986.
12. That, out of 9 category, category no.3 is regarding children of Alumini (C.A.) this category gives a benefit to a candidate whose either parents have been old students of Aligarh Muslim University and as in the present case the name of the petitioner did not find place in the list of selected candidates hence he was entitled for admission as per clause III of special category as quoted above.
13. That, to show that Prabhat Sharma had been a student of Aligarh Muslim University, the petitioner is bringing on record a copy of certificate of B.Sc .. and M.Sc. of Prabhat Sharma. True copy of the certificate of B.Sc. and M.Sc. of Prabhat Sharma are being filed here with and marked as Annexure No. 5&6 to this writ petition.
14. That, it is relevant to point out here that Mr. Prabhat Sharma in his first application dated 4-9-2008 specifically sought information of cut of marks of last admission under Alumni old boys category and only reply provided by Aligarh Muslim University was that this information cannot Be provided to you as a policy matter.
15. That, while making a application dated 1-10-2008 to the Deputy Controller Admission/ Appellate Authority Mr. Prabhat Sharma again sought information about cut off marks of last candidate admitted under the Alumini Old Boys category and the Appellate Authority failed to provide any details and only indicated that this information cannot be given as a Vice Chancellor -is authorized to nominate the candidates to filled-up 20% of in take from amongst various categories including children of Alumini/Old Boys irrespective of the marks obtained in admission test. True copy of the reply dated 3-11-2008 issued by Deputy Controller / Appellate Authority (Admission) is being filed here with and marked as Annexure No.7 to this writ petition.
16. That, the petitioner nor his father was able to get the correct and complete details as the conduct of University have been biased as well as non co-operating.
17. That, on 6-10-2008, the petitioner made a application under Right to Information Act seeking complete details of all the students admitted in Physics, Chemistry & Biology and Physics, Chemistry & Math under different categories as well as the waiting list. True copy of the application dated 6¬10-2008 by the petitioner in this regard is being filed here with and marked as Annexure No.8 to this writ petition.
18. That, as the case of the petitioner of life and liberty hence he respondents ought to have given the complete information within 48 hours as per Right to Information Act but no reply was given by the respondents hence the petitioner was compelled to make to an-other application to the Vice Chancellor on 10-10-2008 requesting his goodself to give the required information to him within 24 hours. True copy of the application dated 10-10-2008 is being filed here with and marked as Annexure No.9 to this writ petition.
19. That, in pursuance to the application dated 6-10-2008 and 10-10-2008 the respondents send a reply dated 10-10-2008 indicating therein that the case of the petitioner does not relate to life and liberty. True copy of the reply dated 10-10¬2008 is being filed here with and marked as Annexure No.10 to this writ petition.
20. That, it is relevant to point out here that the application regarding admission in 10+2 in all the categories instead of giving such information the respondents chose to say that case of the petitioner is not of life and liberty.
21. That, firstly the objection by respondents that the case of the petitioner is not life and liberty is incorrect apart from this what was/is the occasion or justification - for not providing all the information this itself shows that admission has not been done in fair manner and this was reason why the respondents always avoided to supply the required information to the petitioner.
22. That, one Mr. Tayyab Ali son of Sharif Ansari also appeared in combined entrance examination for class 11th and Physics, Chemistry & Biology stream and he was selected in same stream.
23. That, Mr. Tayyab Ali made a application under Right to Information Act seeking information about the marks obtained by him with merit ranking in Physics, Chemistry & Biology stream as well as cut of merit for Physics, Chemistry & Biology and in reply to this Assistant Controller Admission has replied to Mr. Tayyab Ali on 26-8-2008 replying that the marks obtained by him is 26.25 and cut of merit is 20.5 in Physics, Chemistry & Biology. True copy of the reply by Assistant Controller Admission, Aligarh Muslim University dated 26-8-2008 is being filed here with and marked as Annexure No.11 to this writ petition.
24. That, the petitioner as well as Mr. Tayyab Ali both appeared in combined entrance examination for class 11th and as per the information given by the petitioner secured 39 marks and cut of marks of last admitted candidate in Physics, Chemistry & Biology stream is 47 and on other hand in the information given to Mr. Tayyab Ali provides that he secured 26.25 marks and cut of marks for last admitted candidate in Physics, Chemistry & Biology stream is 20.5 hence this itself shows that the University has not given admission to the candidates in fair manner it is also submitted that the rank of Mr. Tayyab Ali as shown in the list of successful candidates was/is 134 and he has not been nominated in any category.
25. That, petitioner is given details of one Mohd. Faisal Qureshi S / 0 Haji Yunus Qureshi to show the unfair means adopted by the respondents in giving admission in 10+2.
26. That, Mohd. Faisal Qureshi was also appeared in combined entrance examination and he was allotted Roll NO. 316356 and he was not selected and in this regard the petitioner bringing on record a copy of information obtained regarding the result of admission test from Internet and it shows that Mohd. Faisal Qureshi was not selected. True copy of the information regarding the result of admission test from Internet is being filed here with and marked as Annexure No. 12 to this writ petition.
27. That, a perusal of the annexure 12 shows that Mohd. Faisal Qureshi was not selected and subsequently one Mustaq Ahmad also sought information under Right to Information Act as to whether any candidates have been admitted beyond official displayed list and the University replied that we have not admitted any students beyond the officially displayed list hence it is clear that no students was admitted whose name did not appear in the list of selected candidates but to utter surprise Mohd. Faisal Qureshi was admitted in class 11 th in Physics, Chemistry & Biology stream . True copy of the reply given by respondents to Mustaq Ahmad dated 7-8-2008 and true copy of the admission card of Mohd. Faisal Qureshi are being filed here with and marked as Annexure No.13&14 to this writ petition.
28. That, it is relevant again to point out here that initially Mohd. Faisal Qureshi was not selected subsequently the respondent's stand was that no students have been admitted beyond officially displayed list but malafides are clearly apparent by perusal of annexure 14 i.e. admission card of Mohd. Faisal Qureshi and further from perusal of letter dated 15-10-2008 issued by Appellate Authority / Deputy controller (Admission) which contains a recital to the effect that marks obtained by Mr. Faisal Qureshi were 22. True copy of the letter dated 15-10-2008 is being filed here with and marked as Annexure No.15 to this writ petition.
29. That, the respondents have not admitted the students in fair manner which is clear from the fact that as admitted by the respondents Mohd. Faisal Qureshi is a student belonging to backward caste and has secured 22 marks in the combined entrance test and as informed by University in the case of Tayyab Ali the cut of marks on which the last candidate was admitted in Physics, Chemistry & Biology stream is 20:5 hence Mohd. Faisal Qureshi should have been selected at the first entrance i.e. his name should have in the list of successful candidates which has not done hence this itself shows the conduct of the respondents.
30. That, Mr. Prabhat Sharma has been informed by one Tariq Islam that he had made a application under Right to Information Act 2005 as to why the decision of admission Committee in January 10, 2008 that entire details regarding admission will be made available on the Internet why the same has not done this year and in reply to this, the Assistant Controller have stated that this could not be done due to technical computational difficulties. True copy of the letter dated 10-11-2008 in this regard is being filed here with and marked as Annexure No.16 to this writ petition.
31. That, it is submitted here that in the letter dated 10-11- 2008 the respondents have admitted that a decision was taken by Admission Committee in January 10, 2008 for displaying entire details about admission on Website and they could not do so due to technical computational difficulties hence it is not open for them to say that the details sought by the petitioner and his father regarding all the admissions in all categoriescould not be provided other policy decision.
32. That, Prospectus of combined entrance examination contains details of special category and one of category is category of old students/ Alumini and in letter dated 3-11- 2008 it has been admitted by Deputy Controller/Appellate Authority (admission) that 20% of seats will be filled-up amongst various categories and Alumini is also one of them.
33. That, when a decision was taken by Admission Committee on 10-1-2008 to display the complete list of all the candidates admitted in class 11 th then firstly it is not open for the respondents to say that the complete details of admission under this special category cannot be provided further as the petitioner is also entitled to be admitted under the category of Alumini and as in the present case it is clearly apparent that the University have not admitted the students in fair manner, it is reasonable apprehension in the mind of the petitioner that so called discretion vested with the Vice Chancellor have not been fairly exercised and this is reason why the complete details of admission under this category has not been provided to the petitioner in spite of his repeated request more so in the event that this list was to be displayed on the Website this year.
34. That, 'as far as the recital contained in the letter dated 3-11¬2008 is concern it can not be accepted that Vice Chancellor can nominate and the candidate irrespective of marks obtained by him as the discretion is always to be exercise in a reasonable manner and it is not understandable as to why the respondents are denying to give details of admission under this category.
35. That, from the perusal of the aforesaid fact and hence In view of these facts and circumstances of the case it IS absolutely clear that the respondents have acted in a very arbitrary manner in giving admission to the students of class 11th.
36. That, in spite of best efforts the petitioner could not get a copy of any resolution by academic committee which provides that Vice Chancellor can nominate any student irrespective of any marks obtained by him.
37. That the petitioner has got no other alternative, speedy and efficacious remedy except to approach this Hon 'hIe High Court in the exercise of its jurisdiction under Article 226 of the constitution of India, inter-alia, on the following amongst many other grounds.
2. Because, Prospectus of combined entrance examination contains details of special category and one of category is category of old students/ Alumini and in letter dated 3¬11-2008 it has been admitted by Deputy Controller / Appellate Authority (admission) that 20% of seats will be filled-up amongst various categories and Alumini is also one of them.
3. Because, when a decision was taken by Admission Committee on 10-1-2008 to display the complete list of all the candidates admitted in class 11 th then firstly it is not open for the respondents to say that the complete details of admission under this special category cannot be provided further as the petitioner is also entitled to be admitted under the category of Alumini and as in the present case it is clearly apparent that the University have not admitted the students in fair manner, it is reasonable apprehension in the mind of the petitioner that so called discretion vested with the Vice Chancellor have not been fairly exercised and this is reason why the complete details of admission under this category has not been provided to the petitioner inspite of his repeated request more so in the event that this list was to be displayed on the Website this year.
4. Because, as far as the recital contained in the letter dated 3-11-2008 is concern it can not be accepted that Vice Chancellor can nominate and the candidate irrespective of marks obtained by him as the discretion is always to be exercise in a reasonable manner and it is not understandable as to why the respondents are denying to give details of admission under this category
5. Because, from the perusal of the aforesaid fact and hence in view of these facts and circumstances of the case it is absolutely clear that the respondents have acted in a very arbitrary manner in giving admission to the students of class 11th Because, in spite of best efforts the petitioner could not get a copy of any resolution by academic committee which provides that Vice Chancellor can nominate any student irrespective of any marks obtained by him.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:
(i) Issue a writ order or direction in the nature of Mandamus commanding the respondents to admit the petitioner in class 11th (10+2) in Physics, Chemistry & Biology stream.
(ii) Issue such other and further writ, order or direction, as this Hon 'hIe Court may deem fit and proper in the circumstances of the present case.
(iii) Award the cost of the writ petition to the petitioner.
Dated - ……………….. 2008 Divakar Rai Sharma
2. That the petitioner further declare that he has not received caveat any of the respondents or from any person till preparation of the instant writ petition.
3. That, the petitioner is a minor and hence he is filling the present writ petition through his next friend / father Prabhat Sharma.
4. That, by means of the present writ petition, the petitioner is seeking mandamus commanding the respondents to admit him in 10+2 Physics, Chemistry and Biology (PCB) stream.
5. That, the brief facts of the case that the petitioner has passed his High School in the year 2008 (Academic Session 2008-08) from Delhi Public School, Aligarh (CBSE) and secured 92% marks. True copy of the mark sheet of the petitioner is being filed here with and marked as Annexure No.1 to this writ petition.
6. That, in pursuance to the advertisement issued by the respondents inviting applications from interested candidates to take admission in 10+2 (Aligarh Muslim University) the petitioner submitted his form completing all the required formalities and opting Physics, Chemistry & Biology as his first choice and Physics, Chemistry & Math as his second choice (PCM).
7. That, a combined entrance examination for admission in 10+2 was conducted and the petitioner took the examination but his name did not find place in the list of successful candidates declared by the respondents.
8. That, as the petitioner had secured 92% marks in his High School he was hopeful that he will be selected Physics, Chemistry & Biology stream for taking admission in 10+2 but after the results were declared he tried to enquire matter and on 4-9-2008 under Right to Information Act seeking information about the marks secured by him as well as cut of marks secured by the selected candidates. True copy of the application dated 4-9-2008 and true copy of the admit card of the petitioner are being filed here with and marked as Annexure No.2&2A to this writ petition.
9. That, in reply to the application dated 4-9-2008 the Aligarh Muslim University send a reply on 24-9-2008 indicating therein that the marks secured by Nishit Sharma (Roll No. 299406) Physics, Chemistry & Biology were 39 and marks secured in examination of last candidates selected mGeneral Category was 47.75. True copy of the reply by Assistant Controller Admission dated 24-9-2008 is being filed here with and marked as Annexure No.3 to this writ petition.
10. That, after going through the reply dated 24-9-2008 the father of the petitioner was not satisfied and he made a application under Right to Information Act asking for complete details because as per his information the reply dated 24-9-2008 by the respondents was not correct. True copy of the application in this regard dated 1-10-2008 by Prabhat Sharma to Deputy Controller Admission/ Appellate, Aligarh Muslim University, Aligarh is being filed here with and marked as Annexure No.4 to this writ petition.
11. That, in reply to the application dated 1-10-2008 made by Prabhat Sharma the Deputy Controller/Appellate Authority Admission given by them earlier in reply dated 24-9-2008 is correct. It is pertinent to point out here that there are two modes of admissions in Aligarh Muslim University the first mode is (as far as 10+2 is concern is a combined entrance examination) and successful candidates as per their choices are given admission in different streams the other mode is a special category and under this special category students who do not get admission on merits are given admission under these categories and in this regard the petitioner is bringing on record a copy of table III wherein special categories have been defined. Section of society as Identified in NEP 1986.
12. That, out of 9 category, category no.3 is regarding children of Alumini (C.A.) this category gives a benefit to a candidate whose either parents have been old students of Aligarh Muslim University and as in the present case the name of the petitioner did not find place in the list of selected candidates hence he was entitled for admission as per clause III of special category as quoted above.
13. That, to show that Prabhat Sharma had been a student of Aligarh Muslim University, the petitioner is bringing on record a copy of certificate of B.Sc .. and M.Sc. of Prabhat Sharma. True copy of the certificate of B.Sc. and M.Sc. of Prabhat Sharma are being filed here with and marked as Annexure No. 5&6 to this writ petition.
14. That, it is relevant to point out here that Mr. Prabhat Sharma in his first application dated 4-9-2008 specifically sought information of cut of marks of last admission under Alumni old boys category and only reply provided by Aligarh Muslim University was that this information cannot Be provided to you as a policy matter.
15. That, while making a application dated 1-10-2008 to the Deputy Controller Admission/ Appellate Authority Mr. Prabhat Sharma again sought information about cut off marks of last candidate admitted under the Alumini Old Boys category and the Appellate Authority failed to provide any details and only indicated that this information cannot be given as a Vice Chancellor -is authorized to nominate the candidates to filled-up 20% of in take from amongst various categories including children of Alumini/Old Boys irrespective of the marks obtained in admission test. True copy of the reply dated 3-11-2008 issued by Deputy Controller / Appellate Authority (Admission) is being filed here with and marked as Annexure No.7 to this writ petition.
16. That, the petitioner nor his father was able to get the correct and complete details as the conduct of University have been biased as well as non co-operating.
17. That, on 6-10-2008, the petitioner made a application under Right to Information Act seeking complete details of all the students admitted in Physics, Chemistry & Biology and Physics, Chemistry & Math under different categories as well as the waiting list. True copy of the application dated 6¬10-2008 by the petitioner in this regard is being filed here with and marked as Annexure No.8 to this writ petition.
18. That, as the case of the petitioner of life and liberty hence he respondents ought to have given the complete information within 48 hours as per Right to Information Act but no reply was given by the respondents hence the petitioner was compelled to make to an-other application to the Vice Chancellor on 10-10-2008 requesting his goodself to give the required information to him within 24 hours. True copy of the application dated 10-10-2008 is being filed here with and marked as Annexure No.9 to this writ petition.
19. That, in pursuance to the application dated 6-10-2008 and 10-10-2008 the respondents send a reply dated 10-10-2008 indicating therein that the case of the petitioner does not relate to life and liberty. True copy of the reply dated 10-10¬2008 is being filed here with and marked as Annexure No.10 to this writ petition.
20. That, it is relevant to point out here that the application regarding admission in 10+2 in all the categories instead of giving such information the respondents chose to say that case of the petitioner is not of life and liberty.
21. That, firstly the objection by respondents that the case of the petitioner is not life and liberty is incorrect apart from this what was/is the occasion or justification - for not providing all the information this itself shows that admission has not been done in fair manner and this was reason why the respondents always avoided to supply the required information to the petitioner.
22. That, one Mr. Tayyab Ali son of Sharif Ansari also appeared in combined entrance examination for class 11th and Physics, Chemistry & Biology stream and he was selected in same stream.
23. That, Mr. Tayyab Ali made a application under Right to Information Act seeking information about the marks obtained by him with merit ranking in Physics, Chemistry & Biology stream as well as cut of merit for Physics, Chemistry & Biology and in reply to this Assistant Controller Admission has replied to Mr. Tayyab Ali on 26-8-2008 replying that the marks obtained by him is 26.25 and cut of merit is 20.5 in Physics, Chemistry & Biology. True copy of the reply by Assistant Controller Admission, Aligarh Muslim University dated 26-8-2008 is being filed here with and marked as Annexure No.11 to this writ petition.
24. That, the petitioner as well as Mr. Tayyab Ali both appeared in combined entrance examination for class 11th and as per the information given by the petitioner secured 39 marks and cut of marks of last admitted candidate in Physics, Chemistry & Biology stream is 47 and on other hand in the information given to Mr. Tayyab Ali provides that he secured 26.25 marks and cut of marks for last admitted candidate in Physics, Chemistry & Biology stream is 20.5 hence this itself shows that the University has not given admission to the candidates in fair manner it is also submitted that the rank of Mr. Tayyab Ali as shown in the list of successful candidates was/is 134 and he has not been nominated in any category.
25. That, petitioner is given details of one Mohd. Faisal Qureshi S / 0 Haji Yunus Qureshi to show the unfair means adopted by the respondents in giving admission in 10+2.
26. That, Mohd. Faisal Qureshi was also appeared in combined entrance examination and he was allotted Roll NO. 316356 and he was not selected and in this regard the petitioner bringing on record a copy of information obtained regarding the result of admission test from Internet and it shows that Mohd. Faisal Qureshi was not selected. True copy of the information regarding the result of admission test from Internet is being filed here with and marked as Annexure No. 12 to this writ petition.
27. That, a perusal of the annexure 12 shows that Mohd. Faisal Qureshi was not selected and subsequently one Mustaq Ahmad also sought information under Right to Information Act as to whether any candidates have been admitted beyond official displayed list and the University replied that we have not admitted any students beyond the officially displayed list hence it is clear that no students was admitted whose name did not appear in the list of selected candidates but to utter surprise Mohd. Faisal Qureshi was admitted in class 11 th in Physics, Chemistry & Biology stream . True copy of the reply given by respondents to Mustaq Ahmad dated 7-8-2008 and true copy of the admission card of Mohd. Faisal Qureshi are being filed here with and marked as Annexure No.13&14 to this writ petition.
28. That, it is relevant again to point out here that initially Mohd. Faisal Qureshi was not selected subsequently the respondent's stand was that no students have been admitted beyond officially displayed list but malafides are clearly apparent by perusal of annexure 14 i.e. admission card of Mohd. Faisal Qureshi and further from perusal of letter dated 15-10-2008 issued by Appellate Authority / Deputy controller (Admission) which contains a recital to the effect that marks obtained by Mr. Faisal Qureshi were 22. True copy of the letter dated 15-10-2008 is being filed here with and marked as Annexure No.15 to this writ petition.
29. That, the respondents have not admitted the students in fair manner which is clear from the fact that as admitted by the respondents Mohd. Faisal Qureshi is a student belonging to backward caste and has secured 22 marks in the combined entrance test and as informed by University in the case of Tayyab Ali the cut of marks on which the last candidate was admitted in Physics, Chemistry & Biology stream is 20:5 hence Mohd. Faisal Qureshi should have been selected at the first entrance i.e. his name should have in the list of successful candidates which has not done hence this itself shows the conduct of the respondents.
30. That, Mr. Prabhat Sharma has been informed by one Tariq Islam that he had made a application under Right to Information Act 2005 as to why the decision of admission Committee in January 10, 2008 that entire details regarding admission will be made available on the Internet why the same has not done this year and in reply to this, the Assistant Controller have stated that this could not be done due to technical computational difficulties. True copy of the letter dated 10-11-2008 in this regard is being filed here with and marked as Annexure No.16 to this writ petition.
31. That, it is submitted here that in the letter dated 10-11- 2008 the respondents have admitted that a decision was taken by Admission Committee in January 10, 2008 for displaying entire details about admission on Website and they could not do so due to technical computational difficulties hence it is not open for them to say that the details sought by the petitioner and his father regarding all the admissions in all categoriescould not be provided other policy decision.
32. That, Prospectus of combined entrance examination contains details of special category and one of category is category of old students/ Alumini and in letter dated 3-11- 2008 it has been admitted by Deputy Controller/Appellate Authority (admission) that 20% of seats will be filled-up amongst various categories and Alumini is also one of them.
33. That, when a decision was taken by Admission Committee on 10-1-2008 to display the complete list of all the candidates admitted in class 11 th then firstly it is not open for the respondents to say that the complete details of admission under this special category cannot be provided further as the petitioner is also entitled to be admitted under the category of Alumini and as in the present case it is clearly apparent that the University have not admitted the students in fair manner, it is reasonable apprehension in the mind of the petitioner that so called discretion vested with the Vice Chancellor have not been fairly exercised and this is reason why the complete details of admission under this category has not been provided to the petitioner in spite of his repeated request more so in the event that this list was to be displayed on the Website this year.
34. That, 'as far as the recital contained in the letter dated 3-11¬2008 is concern it can not be accepted that Vice Chancellor can nominate and the candidate irrespective of marks obtained by him as the discretion is always to be exercise in a reasonable manner and it is not understandable as to why the respondents are denying to give details of admission under this category.
35. That, from the perusal of the aforesaid fact and hence In view of these facts and circumstances of the case it IS absolutely clear that the respondents have acted in a very arbitrary manner in giving admission to the students of class 11th.
36. That, in spite of best efforts the petitioner could not get a copy of any resolution by academic committee which provides that Vice Chancellor can nominate any student irrespective of any marks obtained by him.
37. That the petitioner has got no other alternative, speedy and efficacious remedy except to approach this Hon 'hIe High Court in the exercise of its jurisdiction under Article 226 of the constitution of India, inter-alia, on the following amongst many other grounds.
GROUNDS
1. Because, it is submitted here that in the letter dated 10¬11-2008 the respondents have admitted that a decision was taken by admission Committee in January 10, 2008 for displaying entire details about admission on Website and they could not do so due to technical computational difficulties hence it is not open for them to say that the details sought by the petitioner and his father regarding all the admissions in all categories could not be provided to their policy decision.
2. Because, Prospectus of combined entrance examination contains details of special category and one of category is category of old students/ Alumini and in letter dated 3¬11-2008 it has been admitted by Deputy Controller / Appellate Authority (admission) that 20% of seats will be filled-up amongst various categories and Alumini is also one of them.
3. Because, when a decision was taken by Admission Committee on 10-1-2008 to display the complete list of all the candidates admitted in class 11 th then firstly it is not open for the respondents to say that the complete details of admission under this special category cannot be provided further as the petitioner is also entitled to be admitted under the category of Alumini and as in the present case it is clearly apparent that the University have not admitted the students in fair manner, it is reasonable apprehension in the mind of the petitioner that so called discretion vested with the Vice Chancellor have not been fairly exercised and this is reason why the complete details of admission under this category has not been provided to the petitioner inspite of his repeated request more so in the event that this list was to be displayed on the Website this year.
4. Because, as far as the recital contained in the letter dated 3-11-2008 is concern it can not be accepted that Vice Chancellor can nominate and the candidate irrespective of marks obtained by him as the discretion is always to be exercise in a reasonable manner and it is not understandable as to why the respondents are denying to give details of admission under this category
5. Because, from the perusal of the aforesaid fact and hence in view of these facts and circumstances of the case it is absolutely clear that the respondents have acted in a very arbitrary manner in giving admission to the students of class 11th Because, in spite of best efforts the petitioner could not get a copy of any resolution by academic committee which provides that Vice Chancellor can nominate any student irrespective of any marks obtained by him.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:
(i) Issue a writ order or direction in the nature of Mandamus commanding the respondents to admit the petitioner in class 11th (10+2) in Physics, Chemistry & Biology stream.
(ii) Issue such other and further writ, order or direction, as this Hon 'hIe Court may deem fit and proper in the circumstances of the present case.
(iii) Award the cost of the writ petition to the petitioner.
Advocate
Ch. No. 6 High Court, Allahabad
Councel for the petitioner
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The text of complete judgement of Hon'ble High Court at Allahabad is given below
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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.
CIVIL SIDE
ORIGINAL JURISDICTION
DATED ALLAHABAD THE : 06.02.2009.
PRESENT
THE HON’BLE RAKESH TIWARI, ........................................................ JUDGE
CIVIL MISC. WRIT PETITION NO.61316 OF 2008.
Order on the petition of Nishit Sharma (Minor)……………PETITIONER.
IN RE:
Nishit Sharma (Minor) S/O Sri Prabhat Sharma, through his next Friend/Father Prabhat Sharma S/O Late M. L. Sharma R/O 1/14 Tar Ka Nagla, Gurudwara Road, Aligarh .
………………...Petitioner
VERSUS
1. Vice Chancellor, Aligarh Muslim University, District Aligart..
2. Registrar, Aligarh Muslim University, District Aligarh.
3. Controller of Examination, Aligarh Muslim University, Djstrict Aligarh.
4. Assistant Controller/Central Public Information, Officer (Admission), Aligarh Muslim University, District Aligarh.
5. Deputy Controller/Appellate Authority (Admission) Aligarh Muslim University, District Aligarh .
............................. Respondents.
Counsel for the Petitioner: Sri Divakar Rai Sharma
Counsel for the Respondents : Smt. Sunita Agrawal.
BY THE COURT
COURT NO. 39
Civl Misc, Writ Petition No. 61316 of 2008
Nishit Sharma Versus Vice Chancellor Aligarh Muslim University,
District Aligarh & others
Hon'ble Rakesh Tiwari, J.
Heard Sri Divakar Rai Sharma, learned counsel for the petitioner and Smt. Sunita Agarwal, learned counsel for respondent nos. 1 to 5. Perused the record.
The petitioner passed his High School from Delhi Public School, Aligarh in 2008 and obtained 92 % marks. He appeared. He appeared combined entrance exam for class 11th and diploma in engineering on 2.6.2008 opting Physics, Chemistry & Biology as his first choice. The petitioner had applied under two categories for admission in the University i.e. under the special categories of S.M. category which is for outstanding sportsman and under CA category which is for children of alumni or old students of the University and as such the petitioner was not admitted by the University in either of the aforesaid two categories of S.M. and C.A. His name did not find place in the list of selected candidates. On receipt of unconfirmed information that cut-off mark of the last student admitted in the aforesaid category of alumni/old students was lower than the petitioner. Whether an application dated 1.10.2008 was moved by the father of the petitioner, who was alumni of the Aligarh Muslim University.
An application was moved by the father of the petitioner on 24.9.2008 under the Right to Information Act regarding percentage of marks obtained by him in entrance examination. He was informed that the petitioner had obtained 39% marks in the combined entrance examination and that the last candidate, who has been granted admission in general category had secured 47.75 marks.
He also moved an application dated 6.10.2008 to the authority under the right to information Act for being provided with complete details about the admissions made in class XI in all the categories including waiting list and list of candidates selected in different categories.
The respondent University vide their letter dated 3.11.2008 replied that details of percentage of last candidates admitted under the category of children of alumni/old boys cannot be provided to him and instead giving details of all selected candidates in class XI the respondents rejected the claim of the petitioner on the ground that the case of the petitioner does not relate to life and liberty.
The petitioner claims that he has been discriminated and though he has brought all the relevant facts to the notice of the authorities of the University including the cases of Sri Tayyab Ali and Sri Faisal Qureshi, who had been admitted on lower marks than the petitioner yet no action was taken by the authorities to remove the discrepancies.
Sri Tayyab Ali was given admission in class XI in Physics, Chemistry & Biology stream on the ground that cut off merit for the aforesaid subjects was 20.5 and he had obtained 26.25% marks securing 134 rank.
As regards Sri Faisal Qureshi who was initially not selected in class XI but was subsequently given admission on the ground that he had obtained 22 % marks in (PCB) Science.
It is averred in the writ petition that the aforesaid name of all selected candidate published in the merit but names of Tayyab Ali and Faisal Qureshi was not in the list of selected candidates and if their admission was fair and transparent their names ought to have been in the merit list of the successful candidates for admission if they had qualified the admission; but they have been admitted later on though they were not qualified for admission.
It is further averred that an application dated 10.11.2008 was moved by one Tariq Islam with the same grievance as that of the petitioner the University informed him that it could not display the entire list of candidates, who had appeared in combined entrance test due to technical difficulty. This decision was taken by Admission Committee in January 10, 2009 but till date the petitioners have not provided with complete details of % of cut¬off marks obtained by them and the list of the candidates selected in spite of repeated request by the petitioner.
In the aforesaid backdrop the present writ petition has been filed for following reliefs.
Issue a writ, order or direction in the nature of mandamus Commanding the respondents to admit the petitioner in class 11th (10+2) in Physics, Chemistry & Biology" (PCB).Stream.
Issue such other and further writ, order or direction as This Hon'ble Court may deem fit and proper in the circumstances of the present case.
Award the cost of the writ petition to the petitioner.
Initially, the Court on 1.12.2008 granted one week's time for filing counter affidavit to the respondents and thereafter two days' time for filing rejoinder affidavit to the petitioner was granted directing the case to be listed on 11.12.2008. The C3se was thereafter listed on 21.1.2009 when the learned counsel for the respondents informed that the rejoinder affidavit has been served upon her on that date and she wanted to go through the same and seek instructions in the matter. She also filed supplementary counter affidavit on 1.2.2009. The case was then listed on 2.2.2009 and on that date Smt. Sunita Agarwal, learned counsel for the respondents wanted to address the Court that exercise of discretion does not require any reason and denial of admission to the petitioner cannot be said to be arbitrary on these grounds.
It is submitted by Smt. Sunita Agarwal. learned counsel for the respondents that the petitioner had failed in the trial of sports game and as such he could not be recommended for admission under that category. As regards the list of 49 candidates who had applied against the special. Category “CA” i.e children of alumni, she urged that the said list was placed before the Vice-Chancellor for nomination of candidates for admission on 22.6.2008, which has been annexed as Annexure-CA-3 to the counter affidavit filed on behalf of the University; that the Vice-Chancellor in his discretion did not nominate the petitioner and that the discretion exercised by him was in reasonable and without basis.
She has lastly urged that in view of the averments made in the paragraphs 11-B and 13 of the counter affidavit that the Vice chancellor had not exercised the discretion conferred upon him by the Academic Council for nomination of 20% of total intake students vide resolution dated 31.1.92 in arbitrary manner as alleged by the petitioner.
In rebuttal. learned counsel for the petitioner relying upon the averments made in the rejoinder affidavit and supplementary rejoinder affidavit to the replies of the averments made in the counter and supplementary counter affidavit submitted that there is no such arbitrary discretion vested in the Vice-Chancel/or, even if he had been authorized by the Academic Council to nominate any candidate irrespective of inter-se merit or any positive criteria laid down in this regard.
The question as to whether exercise of powers by the Vice-Chancel/or pursuant to resolution dated 31.1.92 vested in him with unfettered discretion to admit any candidate requires consideration.
The word “discretion" has been considered by the Apex Court in paragraphs 26 to 35 of the judgment in the case of Reliance Airport Developers reported in (2006) 10 scc1 which for ready reference are extracted below.
"26. Willie exercising tile discretion, certain parameters are to be followed 'Discretion', said Lord Mansfield in R. V.Wilkes, 'when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular'." (See Craies on Statute Law, 6th Edn., P.273 and Ramji Dayawala & Sons (P) Ltd. v. Invest Import,SCC, see p.96, para 20).
27. "Discretion" undoubtedly means judicial discretion and not whim, caprice or fancy of a Judge. (See Dhurandhar Prasad Singh v. Jai Prakash University.) Lord Halsbury in Susannah Sharpe v. Wakefield considered the word "discretion" with reference to its exercise and held: (All ER p.653 F-G)
“…………………………………………………………..”
28. "Discretion" when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular.
29. Though the word, "discretion" laterally means and denotes an uncontrolled power of disposal yet in law, the meaning given to this word appears to be a power to decide within the limits allowed by positive rules of law as to the punishments, remedies or costs. This would mean that even if a person has a discretion to do something the said discretion has to be exercised within the limit allowed by positive rules of law. The literal (sic legal) meaning of the word "discretion" therefore, unmistakably avoids untrammeled or uncontrolled choice and more positively points out at there being a positive control of some judicial principles.
30. Discretion in general, is the discernment of "what is right and proper. it denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection: deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity. .And colorable glosses and pretenses, and not to do according to the will and private affections of persons.
31. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care, therefore, where the Legislature concedes discretion it also imposes a heavy responsibility.
32. The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable, said Lord Camden, L. C.J., in Hindson and Kersey.
33. If a certain latitude or liberty accorded by statute or rules to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review.
34. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent Judges in somewhat different forms of words but with substantial identity. When a statute gives a Judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on he assumption that he is discreet (Per Willes J. in Lee v. Budge Railway Co. and in Morgan v. Morgan).
35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:
'Discretion" .-•Power of the Court or arbitrators to decide as they think fit.
The word 'discretion' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. [Corpus Juris Secundum, Vol. 27, page 289 as referred in Aero Traders Pvt. Ltd. V. Ravindra Kumar Suri, SCC p. 31, para 6: SLT at p. 430 para 6]
A discretion', said Lord WRENBURY, 'does not empower a man to do what he likes merely because he is minded to do so, he must in the exercise of his discretion donot what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason dictates. (Roberts v. Hopwood). This approach to construction has two consequences: the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably (MAXWELL)
……………………………………………………………………..
'Discretion means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rookes case according to law, and not humour. It is to be not arbitrary, Vague and fanciful, but legal and regular. Lord HALSBURY LC in Susannah Sharp v. Wakefield. at p.179 referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd, (AIR pp. 333-35). (See also Aero Traders Pvt. Ltd. v. Ravindra Kumar Suri, See (3) p. 311, para 6, SLT at p. 430, para 6; Man Mal Sharma v. Bikaner Bhasin v. Union of India, AIR at p.322.
‘Discretion’ LORD MANSFIELD stated in classic terms in John Wilkes case, must be a sound one governed by law and guided by rule, not by humour ; Lord DENNING put it eloquently in Breem v, Amalgamated Engineering Union, that in a Government of Laws' 'there is nothing like unfettered discretion immune from judicial reviewability'. Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance. Between equity and colorable glosses and pretences and not to do according to ones wills and private affections. Lord BRIGHTMAN elegantly observed in Chief Constable of North Wales Police v. Evans, that:
'Judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made.
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles, He is not to, yield to spasmodic sentiment. to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, discipline by system, and subordinated to ''the primodial necessity of order in the social life." Wide enough in al/ conscience is the field of discretion that remains. NENJAMIN CARDOZO in the Nature of judicial process.
“………………………………………………………..….”
The word discretion, standing single and unsupported by circumstances signifies exercise of judgments, skill or wisdom as distinguished from folly, unthinking or haste. Evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking, the word in itself implies vigilant circumspection And care therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. (See National Insurance Confidential. Ltd. v. Keshav Bahadur, SCC, p. 375 para 10,. AIR at p 1584, para 10).
“………………………………………………………..”
The power to decide within the limits allowed by positive rules of law as to punishments, remedies or costs and generally to regulate matters of procedure and administration decrement of what is right and proper. (See Article 136 (1), Constitution)
DISCRETION is governed by rule and it must not be arbitrary, vogue and fanciful. (See Jaisinghani v. Union of India, AIR At p.143).
When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law, (Tomlin). In its ordinary meaning, the word signifies unrestrained exercise of choice or will; freedom to act according to one's own judgement. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgement and conscience, uncontrolled by the judgement or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law.
“…………………………………………”
There (may) be several degrees of Discretion, discrelio generalis, discretioi legalis, discretio speciallis, -Discretio generalis is required of every one in everything that he is to do, or attempt;
'Legalis discretioi', is that which Sir E Coke meaneth and setteh forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law .
“The third disretion is where the laws have given no certain rule….. and herein discretion is the absolute of the cause, and gives the rule. (Callis. 112.113)
This principles laid down by the Apex Court in the aforesaid judgment have to be kept in mind while deciding whether the Vice-Chancellor of the University having been (delegated power by resolution dated 31.1.92 could have exercised any unchannelized or unfettered discretion in the matter of admission of the students on his whims and fancy. The counsel for the respondent University could not show application of any judicious mind in “pick and choose" method adopted by him thus rendering the discretion exercised by the Vice-Chancellor unregulated and absolutely capricious and lacks reason.
Furthermore, a perusal of Annexure-1 to the supplementary rejoinder affidavit, which is an information supplied by the Assistant Controller/CPIO, ( Admission) under the Right to Information Act regarding percentage in examination of last admission under Alumni/Old Boys category was given cut-off marks of 35 % whereas the percentage in examination of class XI (Science) of the petitioner was 39%. This shows unregulated hindrance of the Vice-Chancellor in exercise of his said discretion. The aforesaid letter dated 2.2.2009 is extracted below:
The petitioner passed his High School from Delhi Public School, Aligarh in 2008 and obtained 92 % marks. He appeared. He appeared combined entrance exam for class 11th and diploma in engineering on 2.6.2008 opting Physics, Chemistry & Biology as his first choice. The petitioner had applied under two categories for admission in the University i.e. under the special categories of S.M. category which is for outstanding sportsman and under CA category which is for children of alumni or old students of the University and as such the petitioner was not admitted by the University in either of the aforesaid two categories of S.M. and C.A. His name did not find place in the list of selected candidates. On receipt of unconfirmed information that cut-off mark of the last student admitted in the aforesaid category of alumni/old students was lower than the petitioner. Whether an application dated 1.10.2008 was moved by the father of the petitioner, who was alumni of the Aligarh Muslim University.
An application was moved by the father of the petitioner on 24.9.2008 under the Right to Information Act regarding percentage of marks obtained by him in entrance examination. He was informed that the petitioner had obtained 39% marks in the combined entrance examination and that the last candidate, who has been granted admission in general category had secured 47.75 marks.
He also moved an application dated 6.10.2008 to the authority under the right to information Act for being provided with complete details about the admissions made in class XI in all the categories including waiting list and list of candidates selected in different categories.
The respondent University vide their letter dated 3.11.2008 replied that details of percentage of last candidates admitted under the category of children of alumni/old boys cannot be provided to him and instead giving details of all selected candidates in class XI the respondents rejected the claim of the petitioner on the ground that the case of the petitioner does not relate to life and liberty.
The petitioner claims that he has been discriminated and though he has brought all the relevant facts to the notice of the authorities of the University including the cases of Sri Tayyab Ali and Sri Faisal Qureshi, who had been admitted on lower marks than the petitioner yet no action was taken by the authorities to remove the discrepancies.
Sri Tayyab Ali was given admission in class XI in Physics, Chemistry & Biology stream on the ground that cut off merit for the aforesaid subjects was 20.5 and he had obtained 26.25% marks securing 134 rank.
As regards Sri Faisal Qureshi who was initially not selected in class XI but was subsequently given admission on the ground that he had obtained 22 % marks in (PCB) Science.
It is averred in the writ petition that the aforesaid name of all selected candidate published in the merit but names of Tayyab Ali and Faisal Qureshi was not in the list of selected candidates and if their admission was fair and transparent their names ought to have been in the merit list of the successful candidates for admission if they had qualified the admission; but they have been admitted later on though they were not qualified for admission.
It is further averred that an application dated 10.11.2008 was moved by one Tariq Islam with the same grievance as that of the petitioner the University informed him that it could not display the entire list of candidates, who had appeared in combined entrance test due to technical difficulty. This decision was taken by Admission Committee in January 10, 2009 but till date the petitioners have not provided with complete details of % of cut¬off marks obtained by them and the list of the candidates selected in spite of repeated request by the petitioner.
In the aforesaid backdrop the present writ petition has been filed for following reliefs.
Issue a writ, order or direction in the nature of mandamus Commanding the respondents to admit the petitioner in class 11th (10+2) in Physics, Chemistry & Biology" (PCB).Stream.
Issue such other and further writ, order or direction as This Hon'ble Court may deem fit and proper in the circumstances of the present case.
Award the cost of the writ petition to the petitioner.
Initially, the Court on 1.12.2008 granted one week's time for filing counter affidavit to the respondents and thereafter two days' time for filing rejoinder affidavit to the petitioner was granted directing the case to be listed on 11.12.2008. The C3se was thereafter listed on 21.1.2009 when the learned counsel for the respondents informed that the rejoinder affidavit has been served upon her on that date and she wanted to go through the same and seek instructions in the matter. She also filed supplementary counter affidavit on 1.2.2009. The case was then listed on 2.2.2009 and on that date Smt. Sunita Agarwal, learned counsel for the respondents wanted to address the Court that exercise of discretion does not require any reason and denial of admission to the petitioner cannot be said to be arbitrary on these grounds.
It is submitted by Smt. Sunita Agarwal. learned counsel for the respondents that the petitioner had failed in the trial of sports game and as such he could not be recommended for admission under that category. As regards the list of 49 candidates who had applied against the special. Category “CA” i.e children of alumni, she urged that the said list was placed before the Vice-Chancellor for nomination of candidates for admission on 22.6.2008, which has been annexed as Annexure-CA-3 to the counter affidavit filed on behalf of the University; that the Vice-Chancellor in his discretion did not nominate the petitioner and that the discretion exercised by him was in reasonable and without basis.
She has lastly urged that in view of the averments made in the paragraphs 11-B and 13 of the counter affidavit that the Vice chancellor had not exercised the discretion conferred upon him by the Academic Council for nomination of 20% of total intake students vide resolution dated 31.1.92 in arbitrary manner as alleged by the petitioner.
In rebuttal. learned counsel for the petitioner relying upon the averments made in the rejoinder affidavit and supplementary rejoinder affidavit to the replies of the averments made in the counter and supplementary counter affidavit submitted that there is no such arbitrary discretion vested in the Vice-Chancel/or, even if he had been authorized by the Academic Council to nominate any candidate irrespective of inter-se merit or any positive criteria laid down in this regard.
The question as to whether exercise of powers by the Vice-Chancel/or pursuant to resolution dated 31.1.92 vested in him with unfettered discretion to admit any candidate requires consideration.
The word “discretion" has been considered by the Apex Court in paragraphs 26 to 35 of the judgment in the case of Reliance Airport Developers reported in (2006) 10 scc1 which for ready reference are extracted below.
"26. Willie exercising tile discretion, certain parameters are to be followed 'Discretion', said Lord Mansfield in R. V.Wilkes, 'when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular'." (See Craies on Statute Law, 6th Edn., P.273 and Ramji Dayawala & Sons (P) Ltd. v. Invest Import,SCC, see p.96, para 20).
27. "Discretion" undoubtedly means judicial discretion and not whim, caprice or fancy of a Judge. (See Dhurandhar Prasad Singh v. Jai Prakash University.) Lord Halsbury in Susannah Sharpe v. Wakefield considered the word "discretion" with reference to its exercise and held: (All ER p.653 F-G)
“…………………………………………………………..”
28. "Discretion" when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular.
29. Though the word, "discretion" laterally means and denotes an uncontrolled power of disposal yet in law, the meaning given to this word appears to be a power to decide within the limits allowed by positive rules of law as to the punishments, remedies or costs. This would mean that even if a person has a discretion to do something the said discretion has to be exercised within the limit allowed by positive rules of law. The literal (sic legal) meaning of the word "discretion" therefore, unmistakably avoids untrammeled or uncontrolled choice and more positively points out at there being a positive control of some judicial principles.
30. Discretion in general, is the discernment of "what is right and proper. it denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection: deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity. .And colorable glosses and pretenses, and not to do according to the will and private affections of persons.
31. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care, therefore, where the Legislature concedes discretion it also imposes a heavy responsibility.
32. The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable, said Lord Camden, L. C.J., in Hindson and Kersey.
33. If a certain latitude or liberty accorded by statute or rules to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review.
34. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent Judges in somewhat different forms of words but with substantial identity. When a statute gives a Judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on he assumption that he is discreet (Per Willes J. in Lee v. Budge Railway Co. and in Morgan v. Morgan).
35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:
'Discretion" .-•Power of the Court or arbitrators to decide as they think fit.
The word 'discretion' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. [Corpus Juris Secundum, Vol. 27, page 289 as referred in Aero Traders Pvt. Ltd. V. Ravindra Kumar Suri, SCC p. 31, para 6: SLT at p. 430 para 6]
A discretion', said Lord WRENBURY, 'does not empower a man to do what he likes merely because he is minded to do so, he must in the exercise of his discretion donot what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason dictates. (Roberts v. Hopwood). This approach to construction has two consequences: the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably (MAXWELL)
……………………………………………………………………..
'Discretion means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rookes case according to law, and not humour. It is to be not arbitrary, Vague and fanciful, but legal and regular. Lord HALSBURY LC in Susannah Sharp v. Wakefield. at p.179 referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd, (AIR pp. 333-35). (See also Aero Traders Pvt. Ltd. v. Ravindra Kumar Suri, See (3) p. 311, para 6, SLT at p. 430, para 6; Man Mal Sharma v. Bikaner Bhasin v. Union of India, AIR at p.322.
‘Discretion’ LORD MANSFIELD stated in classic terms in John Wilkes case, must be a sound one governed by law and guided by rule, not by humour ; Lord DENNING put it eloquently in Breem v, Amalgamated Engineering Union, that in a Government of Laws' 'there is nothing like unfettered discretion immune from judicial reviewability'. Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance. Between equity and colorable glosses and pretences and not to do according to ones wills and private affections. Lord BRIGHTMAN elegantly observed in Chief Constable of North Wales Police v. Evans, that:
'Judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made.
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles, He is not to, yield to spasmodic sentiment. to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, discipline by system, and subordinated to ''the primodial necessity of order in the social life." Wide enough in al/ conscience is the field of discretion that remains. NENJAMIN CARDOZO in the Nature of judicial process.
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The word discretion, standing single and unsupported by circumstances signifies exercise of judgments, skill or wisdom as distinguished from folly, unthinking or haste. Evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking, the word in itself implies vigilant circumspection And care therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. (See National Insurance Confidential. Ltd. v. Keshav Bahadur, SCC, p. 375 para 10,. AIR at p 1584, para 10).
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The power to decide within the limits allowed by positive rules of law as to punishments, remedies or costs and generally to regulate matters of procedure and administration decrement of what is right and proper. (See Article 136 (1), Constitution)
DISCRETION is governed by rule and it must not be arbitrary, vogue and fanciful. (See Jaisinghani v. Union of India, AIR At p.143).
When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law, (Tomlin). In its ordinary meaning, the word signifies unrestrained exercise of choice or will; freedom to act according to one's own judgement. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgement and conscience, uncontrolled by the judgement or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law.
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There (may) be several degrees of Discretion, discrelio generalis, discretioi legalis, discretio speciallis, -Discretio generalis is required of every one in everything that he is to do, or attempt;
'Legalis discretioi', is that which Sir E Coke meaneth and setteh forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law .
“The third disretion is where the laws have given no certain rule….. and herein discretion is the absolute of the cause, and gives the rule. (Callis. 112.113)
This principles laid down by the Apex Court in the aforesaid judgment have to be kept in mind while deciding whether the Vice-Chancellor of the University having been (delegated power by resolution dated 31.1.92 could have exercised any unchannelized or unfettered discretion in the matter of admission of the students on his whims and fancy. The counsel for the respondent University could not show application of any judicious mind in “pick and choose" method adopted by him thus rendering the discretion exercised by the Vice-Chancellor unregulated and absolutely capricious and lacks reason.
Furthermore, a perusal of Annexure-1 to the supplementary rejoinder affidavit, which is an information supplied by the Assistant Controller/CPIO, ( Admission) under the Right to Information Act regarding percentage in examination of last admission under Alumni/Old Boys category was given cut-off marks of 35 % whereas the percentage in examination of class XI (Science) of the petitioner was 39%. This shows unregulated hindrance of the Vice-Chancellor in exercise of his said discretion. The aforesaid letter dated 2.2.2009 is extracted below:
Office of the Controller of Examinations
(Admission Section)
A.M.U. Aligrah
Ext. D.No. 601/Adms. Dated 2.2.2009
(Admission Section)
A.M.U. Aligrah
Prabhat Sharma
1/14 Tar Ka Nag/a,
Gurudwara Road,
Aligarh-UP
Subject:- Seeking information Under the Right to Information Act.2005.
Reference to Decision No. CIC/SG/A/20 08/00155/1315 dated 28.2.2009 received from the Information Commissioner on the Appeal No. CIC/SG/A/2008/00155 dated 1.10.2008 filed by your regarding percentage in examination of last admission under the Alumni/Old Boys category.
The reply is as under:-
| Si.no | Question | Reply |
| 1. | Percentage in examination of class XI (science of Master Nishit Sharma Roll No. 299406 (PCB) | 39.00 |
| 2. | Percentage in examination of last candidate selected in general category in the same. | 47.75 |
| 3. | Percentage in examination of the last admission under Alumni/ old boys category | 35.00 |
| 4. | Cut off percentage of B.Sc (Biochemistry) in Abdullah college | Internal: 77.25% External : 83.50% |
Sign. Eligible
(Wajid AIi)
Assistant Controller/CP/O
(Admission)
Considering all the aforesaid aspects of the matter I am of the consideration that the petitioner has been discriminated by the Vice-Chancellor, who has exercised the powers delegated upon him by the Academic Council vide its resolution dated 31.1.92. The petitioner having obtained 39% marks under the category of Ward of Children of Alumni was entitled to be admitted in the University particularly when the last candidate admitted in the aforesaid category had obtained 35% marks in the entrance test.
It is directed that the Vice-Chancellor shall grant admission to the petitioner irrespective of any other consideration in class XI Science ("PCS"). stream forthwith within a period of one week from the date of production of a certified copy of this order. The petitioner will complete all formalities such as payment of fee etc. before taking admission. He shall not be denied permission to appear in the final examination of class XI by the University and any shortage of attendance would be deemed to be condoned as it is attributable directly to the arbitrary decision of the Vice-Chancellor denying admission to the petitioner for which the petitioner can not be penalized. However, as the petitioner has not been able to appear in the sessionals due to non grant of admission in the circumstances aforesaid, it would be desirable that he undergoes a sessional examination of 25% marks in the course completed.
In the last but not the least, the Court hopes and trusts that the University will not harbour any reservation in the cause of furtherance of justice against the petitioner for approaching the Court in the matter.
The writ petition is accordingly, allowed. No order as to costs.
It is directed that the Vice-Chancellor shall grant admission to the petitioner irrespective of any other consideration in class XI Science ("PCS"). stream forthwith within a period of one week from the date of production of a certified copy of this order. The petitioner will complete all formalities such as payment of fee etc. before taking admission. He shall not be denied permission to appear in the final examination of class XI by the University and any shortage of attendance would be deemed to be condoned as it is attributable directly to the arbitrary decision of the Vice-Chancellor denying admission to the petitioner for which the petitioner can not be penalized. However, as the petitioner has not been able to appear in the sessionals due to non grant of admission in the circumstances aforesaid, it would be desirable that he undergoes a sessional examination of 25% marks in the course completed.
In the last but not the least, the Court hopes and trusts that the University will not harbour any reservation in the cause of furtherance of justice against the petitioner for approaching the Court in the matter.
Dated 6.2.2009
CPP/- Sd. Rakesh Tiwari-J
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