ORDER
1. In this writ petition filed under Arts. 226 and 227 of the Constitution, Charanjit Kaur, the petitioner, seeks a mandamus directing respondents Nos. 2 and 3, Kurukshetra University and the Chairman, Department of M.Phil. (Hindi) of the said University, to admit the petitioner in M.Philcourse by quashing admission of Darshan Devi, respondent No. 4.
2. In response to prospectus of the University for the year 1989-90, the petitioner applied for admission in the said course. She belongs to Backward Class category. She had passed M.A. (Hindi) from the said University securing 58.50 per cent marks as per certificate, Annexure P. 2. Darshan Devi, respondent No. 4, had also applied for admission out of the reserved quota of Backward Class. She had secured 53.44 per cent marks which was below the minimum standard prescribed was 55 per cent. The act of the Chairman of the Department of M.Phil (Hindi) in declining admission to the petitioner on merit and arbitrarily admitting Darshan Devi, respondent No. 4, was challenged in the writ petition. The University took up the stand that as per prospectus, by relaxing the rule and allowing weightage up to 5 er cent marks, a candidate could be made eligible. Further, as per prospectus, weightage was to be given to the standards who had passed the examination from the said University as well as to the spouses/children of permanent employees of the University. In this manner, it was asserted that respondent No. 4 gained merit over the petitioner. Similar, stand was taken by Darshan Devi, respondent No. 4, in her written statement.
3. The position of Charanjit Kaur, thepetitioner, as well as Darshan Devi, therespondent, in the matter of giving weightageas shown in the written statement is as under:
Respondent No. 4
53.44%
Petitoner
58.50%
Marks obtained in M.A.
Relaxation granted under Regulation VI :
1.56%
-
Weightage of K. U. studentship :
5.00%
5.00%
weightagc of employees' dependent :
5.00%
-
65.00%
63.50%
4. The contention of the learned counsel for the petitioner is that the rule providing for weightage to be given to spouses/children of the employees of the University is discriminatory and violative of the provisions of the Constitution. In support of this contention, reliance has been placed on the decision of this Court in Ashwinder Kaur v. Punjab University, Chandigarh, AIR 1989 Punj and and Har 190. On the other hand, it has been strongly argued on behalf of the respondents that this question should not be permitted to be raised as the same was not taken up in the writ petition and such a question is not purely a question of law or jurisdiction but is dependent upon facts. If opportunity had been given, the relevant facts would have been brought on the record for justifying the rule. In support of this contention, reliance has been placed on the decision of the Supreme Court in Dr. Jagdish Saran v. Union of India, AIR 1980 SC 820.
5. I have given due consideration to these arguments and I am of the view that the petitioner should succeed even if she is not allowed to raise this question. Ashwinder Kaur's case (AIR 1989 Punj & Bar 190) (supra) related to the interpretation of rules and regulations of the Punjab University relating to admission to M.Lib. and Information Science. The question of granting weightage on different counts was considered and Amarjeet Chaudhary, J. observed as under (at p. 193 of AIR):--
'I have looked into this aspect. I consider that the weightages by way of institutional preference (students of Punjab University) certifictes of N.C.C., N.S.S., participation in sports, Youth Welfare and Cultural activities, promotion of adult education and the like, are both justifiable and reasonable, so long as these are restricted to a reasonable limit. The maximum weightage on all these counts have been fixed by the University at 15% of themarks. This, Jo my mind, is reasonable, I, however, find that there is weightage of 5% marks to sons/ daughters of Fellows and employees (both serving and retired) of the University which is excluded from the operation of the restriction of 15%. 1 consider that such weightage to students for being children of employees/fellows of the University, is discriminatory in nature and violative of Art. 14 of the Constitution,'
The question of the regulation being arbitrary or discriminatory can be decided on its own language, without going into the facts of the present case.
6. Regulations II, V and VI of theProspectus for Admission to Master of Philosophy (M.Phil.) 1989-90 of the University read as under: --
'II. Selection procedure:
The admission to M.Phil. Course will be made on the basis of merit in the qualifying examination i.e. Master's Degree in the relevant subject only subject to the fulfilment of the eligibility condition. The weightage of marks for the purpose of merit will be added as under;--
(i) M.A./M.Sc./M.Com. 100% (ii) Weightages (as defined under Cl. V)
XXX XXX XXX V. Weightages for the purpose of Merit:
(A) Candidates who have passed the qualifying examination from Kurukshetra Univer-sity/M.D.U. Rohtak ... 5 marks
(B) Permanent employees of the University, their spouses, their sons/daughters.... 5 marks
VI. Relaxation of the Condition of Eligibility :
A weightage up to 5% marks shall be given to the following categories of candidates to enable them to become eligible. For example, if a candidate has obtained 42% marks, he/she will be given a weightage of only 3% marks so as to raise it to 45% marks i.e. minimum eligibility condition. However, in case of a tie amongst such candidates as have been given this weightage their original marks would be taken into account. In the case of Scheduled Caste/Scheduled Tribes candi-dates, percentage of marks may be relaxed up to 7-10% if the seats reserved for them are not filled up with 5% relaxation :--
(i) Scheduled Castes/Tribes/Socially Backward Classes (not for economically Backward Classes).
(ii) Dependents of Military personnel killed in action or Military personnel permanently disabled in action or their dependents.
(iii) Blind candidates.'
By relaxation of the regulation and giving weightage up to 5% marks, candidates are made eligible. As per example given in Regulation VI, as reproduced above, 3% marks are given to raise it to 45% if the marks obtained are 42% and in the case of Scheduled Caste students, relaxation can be up to 7-10% if the seats reserved for them are not filled up with 5% relaxation. The weightage of 5 marks is given if the candidate had passed the qualifying examination from Kurukshetra University or M.D. University and 5 marks weightage is given to permanent employees of the University, their spouses, sons or daughters. Allowing of weightage to students of Colleges affiliated to Kurukshetra University and M.D. University, as provided, in Regulation V(A), is valid on the ground of institutional preference. However, allowing weightage to the present employees, their spouses, sons and daughters of Kurukshctra University only is discriminatory in nature and violative of Art. 14 of the Constitution.
7. The lurther question for consideration is as to whether Darshan Devi, respondent was rightly admitted to the course, if not, to what effect and as, to whether the petitioner was wrongly denied admission. The method adopted by the respondents for the grant of admission under the regulations by giving weightages has already been reproduced above. The merit of the petitioner and respondent No. 4 has also been reproduced above from the written statement. Marks obtained in qualifying M.A. have been calculated in percentage. In the case of the petitioner, it is 58.50% and in the case of respondent No. 4, it is 53.44%. Regulation II, as reproduced above, does not contemplate for taking into consideration for the purposes of determing merit, percentage of marks.What is contemplated is that 100% marks would he taken into consideration and to the same is to be added weightage marks. If that is so, the position with respect to the petitioner vis-a-vis respondent No. 4 would be as under:
Respondent No.4
Petitoner
Marks obtained in M.A.
855
936
(out of 1600)
Relaxation granted under
25
-
Regulation VI to make 55%
880
Weightage of K. U. studentship:
5
_
Weightagc of employees'dependent :
5
-
890
941
This would show that in spite of weightage to the extent of 1.56% being given to respondent No. 4 to make her eligible and giving other weightages, she would rank below to the petitioner as her marks would be 890 whereas petitioner's marks would be 941. Respondent No. 4 would rank below the petitioner if weightage on account of being relation of employee of the University is excluded.
8. While determining merit, as has been done by the respondent-University, calculations are made on percentage, meaning thereby that instead 5 marks each for weight-age for K. U. studentship and employees dependents, 5% marks were given. Five marks given to respondent No. 4 are being compared with 5% marks obtained by the petitioner. To further elucidate it, these 5 marks are made equivalent to 5% marks of 1600 marks i.e. 80 marks obtained in the qualifying examination by the petitioner. In this way, the petitioner is put to loss. The weightage regarding student ship of Kurukshetra University has to be given to both the petitioner as well as respondent No. 4 of five marks. That will not make any difference while determining theirmerit. Thus in the process, when the petitioner did not get any weightage of 5% marks and such weightage was given to respondent No. 4, she was shown above the petitioner in merit. This error is apparent. The method adopted by the respondent No. 2 and 3 in determining merit is not warranted by Regulation V, referred to above. Respondent No. 4 Darshan Devi was thus wrongly admitted to the course.
9. It has been argued on behalf of the respondents that for preparing merit, only percentage of marks is taken into cosideration and for giving weightage also, percentage of marks is given. This procedure is being followed by the Diversity and if the same is held to be against the regulations, the entire admission had to be upset. This contention cannot be accepted. The decision in this case would affect the parties only.
10. There was no fault of Darshan Devi, respondent No. 4, in getting admission to the Course. No mala fides are attributed either to respondent No. 4 or the University in granting her admission in the circumstances, even if now it is held that she was wrongly admitted to the course, it would cause grave injustice to her if her admission is cancelled. In the peculiar facts of the case, Charanjit Kaur petitioner is entitled to admission to the course on merit and she was wrongly denied the same. While allowing the writ petition, direction is given to respondents Nos. 2 and 3 to admit the petitioner to the said course andif necessary to create another seat for her. The petitioner will get costs of the petition which are quantified at Rs. 1,000/-.
11. Petition allowed.