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Judgment
K.M. Yusuf, J.—Both the writ petitions are taken up analogously for hearing as subject matter is one and the same and both are covered by this judgment. I am dealing with the writ petition of In re : Pradip Kumar Bhagat and Anr. The petitioner No. 1 is the father and the petitioner no. 2 is the daughter of petitioner no. 1 The prayer made in the writ petition is the admission of petitioner no. 2 in the Indian Institute of Technology, Kharagpur (I.I.T.) in B. Tech. course commencing from July 1991 as she is eligible as per Brochure and Rules relating to the admission. The petitioner no. 2 Miss Anju Bhagat, appeared in All India Senior School Certificate Examination, 1991 of the Central Board of Secondary Education and secured 91% marks in Science subjects as required by Indian Institute of Technology. There was an advertisement by the Indian Institute of Technology, in The Times of India" of 21st October, 1990 with regard to admission for the courses commencing from 1991 and the petitioner no. 2 duly applied to the Organizing Chairman. A communication was received by her from the Chairman to the effect that the direct admission was opened to Foreign Nationals residing in India or abroad and who are sponsored by the Government of India. The communication also gave out the requirements essential stating that the application should be sent to the Ministry of External Affairs, New Delhi, or the Indian Embassy/ Consulate of the respective country, the application form was to be accompanied by 70 US dollars or its equivalent. The petitioner no. 2 duly applied to the ministry of External Affairs as advised. Her application bearing no. 0037 was duly approved by the said Ministry and forwarded to the I.I.T. The petitioners state that there are certain guidelines with regard to Direct Admission of Foreign Nationals but where in the said guidelines it is mentioned that the student of a particular country cannot be admitted or discriminated with regard to the country whose students can be admitted, nor there is any scope of discrimination on ground of colour, creed or religion. However, when the list of students for admission was out it was found that petitioner no. 2 was not placed on the list and from enquiry it was revealed that she had not been granted admission because she was a foreign national from a developed country and the authorities have allowed students from under developed or developing countries only. As America does not come within the criteria of under developed or developing country. Miss Bhagat''s admission had been refused on that ground. Mr. D. Jerath, the petitioners'' learned Advocate, went to the Ministry of External Affairs on 1st July, 1991 and he was shown the list of admitted students, in which no student from America was declared admitted and on enquiry he was informed that only students from under-developed countries would be admitted. The petitioners alleged that refusal of admission to Miss Bhagat on the sole ground that she did not belong to an under-developed-country is highly arbitrary because there is no such specification in the guidelines in the Brochure and, as such, such action is barred under the rule of promissory estoppel. It is further stated that if she is not allowed for admission it would not be possible for her to go to America for further studies because of her tender age and because of the fact that her parents are residing in India and also due to financial, constraints and non availability of foreign exchange for American citizens. It is further alleged that the respondents are now altering their position by saying that the student from America or developed countries could not be granted admission in spite of the fact that they had not specified this earlier. The petitioners also pray for interim order for admission of the petitioner no. 2 in the B. Tech. course of the Indian Institute of Technology.
The respondents nos. 1 and 2 contested the writ application by filling the Affidavit-in-Opposition. It is stated that admission of students in the Under Graduate Course of Engineering/Technology through Joint Entrance Examination is held every year by the representatives of five Indian Institutes of Technology and the Institute of Technology, Banaras Hindu University, and a Joint Admission Committee is constituted. The Organizing Chairman of the Indian Institute of Technology, Kharagpur, is the overall Coordinator of the admission. But it is stated that apart from the Joint Entrance Examination the said Committee has to select foreign nationals under the Direct Admission of Foreign Nationals Quota earmarked and sponsored by the Ministry of External Affairs of the Government of India. It is also stated that the said Joint Admission Committee has virtually nothing to do with the matter of admission of foreign nationals save and except to scrutinize the applications forwarded to the Ministry of External Affairs, to prepare the merit list and to finally allocate seats strictly in accordance with the guidelines of the Government of India given from time to time. It is stated that the Brochure is published by the Institute much in advance in order to enable the candidates to apply. The guidelines for sponsoring is circulated by the Government of India either along with the applications or immediately thereafter and the instructions of the Government are mandatory and the Joint Admission Committee cannot act contrary to the same. The Affidavit sets out the guidelines of academic qualifications. It is stated in the Affidavit that the Ministry of External Affairs forwarded applications for Direct Admission of Foreign Nationals to the Organizing Institute i.e. I.I.T., Kharagpur, as follows :
for Developing countries 214
for Developed countries 21
On scrutiny of the applications and in accordance to the guidelines as contained in Memo dated 3rd May, 1991 finalization of admission was made, it is stated in the Affidavit that the application of the petitioner no. 2 was duly forwarded by the Ministry of External Affairs and was considered along with the candidates of the nationals of developed countries and five candidates of developed countries obtained aggregate marks of International Ranking and the petitioner no. 2 stood at the fourth position. But at the same time it is stated that the candidates of the developed countries would not be offered seats as there was no seats unutilized by the developing countries in terms of the instruction of the Government of India. In the case of direct admission merely securing marks does not assure of getting admission unless one fulfils other conditions as prescribed by the Government. The application of the petitioner no. 2 was forwarded to the Indian Institute of Technology, Kharagpur, and as no seat remained unutilized in terms of instruction of 3rd May, 1991 the petitioner no. 2 being a national of developed country could not be allotted one. By the policy decision of 3rd May, 4991 all the 110 seats were allotted to foreign nationals of under-developed countries under different schemes and the petitioner no. 2 being a national of developed country could not be allotted a seat like other applicants of developed countries as no seat remained unutilized. The petitioner no. 2 being a permanent resident of Ranchi have fared well in the Examination but did not appear at the Joint Entrance Examination where the scope of selection was wide and adopted the device of applying as a foreign national for direct admission only because she got her citizenship by birth as citizen of the United States. It is denied that the Indian Institute of Technology has adopted harassing attitude towards the petitioner no. 2 but the fact is that she could not be admitted according to the policy of the Government of India.
Mr. Jerath, the learned Advocate appearing for the petitioners, submitted that the Information Brochure for Direct Admission of Foreign Nationals does not specify as to who would be admitted and who would not be admitted. The guidelines for Direct Admission of Foreign Nationals indicated only that the candidates must be sponsored by the Government of India and the petitioner in the list, forwarded by the Ministry of External Affairs, stood at serial no. 37. The plea taken by the respondents that the candidates from developing countries shall get preference over the developed countries is discriminatory in nature. He specifically referred to the letter of Section Officer (Edn.) dated 3rd May, 1991 of the Ministry of External Affairs written to the Organizing Chairman, Under-Graduate Admission Committee, the Indian Institute of Technology, Kharagpur, wherein he stated that 235 applications of foreign nationals have been forwarded for direct admission to I.I.Ts under DAFN Category 1991 and the break up was as under: - 214 applications from students of developing countries and 21 applications from students of Indian Origin holding passports of developed countries. It was further stated in the letter that the suggested country-wise allocation of 95 seats for the year 1991-92 was closed subject to the candidates'' meeting the eligibility criteria fixed by the Admission Committee of the I.I.Ts. If seats allotted to one or more countries remained unutilized for any reason, this could be utilized for giving admission to the remaining eligible students from the developing countries on the basis of merit list. In the conclusion it was stated, in the said letter that this was issued with the approval of Joint Secretary (Coordination) of the Ministry. Mr. Jerath attacked this particular letter of Section Officer (Edn.) on the basis of Article 77(1) of the Constitution of India. He submitted that the Constitution provides that all executive actions of the Government of India should be expressed to be taken in the name of the President but in this case the decision has been taken or referred to have been taken by the Joint Secretary (Coordination) of the Ministry of External Affairs. The learned Advocate referred to the letter of the Chairman, Under Graduate Admission Committee dated nill addressed to the petitioner no. 2 relating to Direct Admission of Foreign Nationals to (DAFN) to the first year of the B. Tech. Course in the I.I.Ts. Clause 3 of the Information said that to be eligible for direct admission the foreign nationals must have passed a qualifying examination equivalent to the final examination of 10+2 system in India either in India or in any other country with the minimum developed performance in Chemistry, Mathematics, Physics and English. In Chemistry, Mathematics and Physics the candidate must have secured not less than 75% of marks in each subject with aggregate of not less than 80%, and in English not less than 60%. The learned Advocate emphasized that the petitioner has secured 91% of marks which is much above the standard put by the Indian Institute of Technologys. The other conditions regarding Bank Draft of 20 US dollars and fee of 50 US dollars were also fulfilled and the application was sent directly to the Indian Institute of Technology, Kharagpur. It is forcefully submitted that in view of the own contention of the Indian Institute of Technology it is not possible on the part of the Indian Institute of Technology to deny admission to the petitioner No. 2 for the DAFN to the first year of B. Tech. /B. Arch, in different places. In this connection the learned Advocate for the petitioners referred to the decisions reported in Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, and Shyam Sunder Vs. State of Rajasthan,
Mr. Basu, the Id. Advocate appearing for the Indian Institute of Technology, submitted that the defence put out in the Affidavit-in-Opposition is the defence of the Institute and the Institute is bound to carry out the policy decision of the Ministry of External Affairs, Government of India, in the matter of admission. It has no option but to follow the dictates of the Government of India and cannot impose its own decision. As there are good number of seats for candidates from B. Tech./B. Arch. Course in the first year of DAFN so far as the developing countries are concerned, but there are very limited seats for the candidates of developed countries in this category and the policy decision of the Government of India is to be followed at every step. The Indian Institute of Technology cannot by itself take a decision making its own policy. He further submitted that the Brochure referred to by the petitioner for admission of DAFN contains the words "The candidates under this category must be sponsored by the Government of India" but at no time the petitioner No. 2 was sponsored by the Government of India but simply her application was forwarded to the Indian Institute of Technology, Kharagpur, with the list of candidates to be considered in the light of the policy of the Government. In support of his contention Mr. Basu cited two decisions, namely, Kumari Chitra Ghosh and Another Vs. Union of India (UOI) and Others, and D.N. Chanchala Ors. Vs. The State of Mysore and Others,
Mr. Mukherjee, the learned Advocate appearing for the Union of India produced records and also handed over some xerox copies of the letters and communications which would be of importance in coming to a decision. He also submitted that depositing the amount did not automatically qualify the candidate to have the admission because even a promise by a subordinate authority being an intermediatory to superior authority was not competent to make the promise and even if a promise was made such an act was ultra vires and not binding upon superior authority. In this connection he cited a Supreme Court''s decision of Basant Kumar Radhakisan Vora vs. Board of Trustees of the Port of Bombay & Anr., reported in 1991U) SCC 761.
I have elaborately dealt with the facts- and submission made by the parties. The Information Brochure for Direct Admission of Foreign Nationals to B. Tech./B. Arch. Courses of Indian Institutes of Technology and Institute of Technology, Banaras Hindu University, bearing No. 0037 being Annexure ''D'' to the writ petition under the caption Guidelines for Direct Admission contains as follows : -
4.1 Direct Admission of Foreign Nationals (DAFN). This channel of Admission is opened to foreign nationals studying in India or abroad. The candidates under this category must be sponsored by the Government of India. The application must be made on prescribed form obtainable from the Organizing Chairman, Under-Graduate Admission Committee, Indian Institute of Technology. Kharagpur-721302 (India) on payment of U.S. dollar twenty ($20) or its equivalent in Indian currency through a bank draft payable to Indian Institutes of Technology. Kharagpur and drawn on any bank at Kharagpur, India.
In case, any foreign national submits his/her application for admission through Joint Entrance Examination also, a channel available to Indian Nationals only his/her candidature will be cancelled under both the categories.
It is admitted that the Ministry of External Affairs, Government of India, forwarded applications for Direct Admission of Foreign Nationals to bunches to the Indian Institute of Technology, Kharagpur, consisting of 214 for developing countries and 21 for developed countries. The application of the writ petitioner no. 2 was also duly forwarded by the Ministry of External Affairs and was duly considered along with candidates of the nationals of developed countries. Though the petitioners in paragraph 1 of the writ petition stated that the petitioner no. 1 is a citizen of India and the petitioner no. 2 is the daughter of the petitioner no. 1 who is running a business of electronic items at Ranchi, but at the same time it appears from paragraph 4 that the petitioner no. 2 received a reply from the Chairman, Under-Graduate Admission Committee, to the effect that Direct Admission was opened to foreign nationals residing in India or abroad and who are sponsored by the Government of India, also giving requirements essential of sending an application to the Ministry of External Affairs accompanied with 70 US dollar or its equivalent in Indian currency. It further appears from the writ petition particularly in paragraph 6 that the petitioner no. 2 applied on the basis of Direct Admission of Foreign Nationals and the name of the petitioner no. 2 did not figure in the list of the students admitted because she was not granted admission as she was a foreign national from a developed country. The authorities decided to take only students from under-developed or developing countries. It is a fact that the application of the petitioner no. 2 was considered along with the candidates of the nationals of developed countries and the candidates of the developed countries could not be offered seats as no seat remained unutilized by the developing countries. It is not understood why the petitioner No. 2 being a permanent resident of India at Ranchi and fairing well in the examination did not appear at the Joint Entrance Examination where the scope of selection was wide and instead adopted the devise of applying as Foreign Nationals for Direct Admission. It is because of the fact that she being an Indian in all respect has kept her citizenship by birth Intact as the USA citizen. The policy of the Government of India is to give first preference to the candidates from developing countries and thereafter to accommodate the candidates from developed countries. The Organizing Chairman of the Under Graduate Admission Committee, The Indian Institute of Technology. Kharagpur, was advised by the Ministry of External Affairs by Memo dated 22nd March, 1991 that candidature of all the students holding developed countries'' passports be considered only after all the eligible and deserving candidates from the developing countries have been accommodated. This instruction was repeated on 25th March, 1991. The policy was further spelt out by Memo dated 3rd March, 1991 addressed to the Organizing Chairman, Indian Institute of Technology, Kharagpur, by the Government of India relating to the admission of candidates for the year 1991-92. There it was specified to the effect that if any seat remained unfulfilled because of the non-availability of eligible students from developing countries or for any other reason, then those might be given to students from the developed countries on the basis of a combined merit list.
In this connection it may be pointed out that the Government''s policy was spelt out by the Prime Minister and the Minister of State for External Affairs. On 29th August, 1989 Mr. Vasant Sathe, Union Minister of Energy, wrote a letter to Prime Minister Rajiv Gandhi about a particular case and stated therein that seats reserved for foreign students were meant only for students from developing countries and therefore one did not get the benefit of that reservation so far as the problems of the children of Indians born in UK having acquired British citizenship by birth were concerned; and problems arise for the children of non-resident Indians most of whom came from developed countries like UK, USA, Canada etc. Mr. Sathe requested the Prime Minister to consider and secure justice in those cases. Mr. Rajiv Gandhi, Prime Minister, by his letter of 11th September, 1989 wrote back to Mr. Sathe to the effect that under the Self-Financing Foreign Students Scheme, the number of such seats were limited and they were used for students from the developing countries. The Prime Minister further explained that a policy review could only be justified and not individual consideration. Then Mr. E. Faleiro, Union Minister of State for External Affairs, on 15th July, 1991 wrote to Mr. Harish Rawat, a Member of Parliament, that the Self-Financing Scheme for Foreign Students was intended for the benefit of students from developing countries. He further wrote that a US citizen did not qualify to be considered for admission under this Scheme.
The learned Advocate for the petitioner has cited the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. (supra), relating to promissory estoppel. I find no reason why the Brochure Guideline 4.1 as mentioned hereinbefore and the submission of the form along with the requisite fee will become a contractual bond or will operate on the part of the Government as promissory estoppel. Further it is not necessary for the Government to prove that equity lies in its favour because the entire process is based on policy and the policy is to be outlined by the Government alone. The case of Bhim Singh and Ors. (supra), is also on promissory estoppel and these two does not help the petitioners. The learned Advocate appearing for the Indian Institute of Technology cited Kumari Chitra Ghosh''s case (supra), wherein the Supreme Court held that noncompliance with the Rules leading to vacancy of reserved seats for certain categories does not compel the Government to release the seat to general pool. It is laid down in D.N. Chanchala Ors. Vs. The State of Mysore and Others, that distribution of seats by the Government is not violative of Constitution and the different Universities have different standards of their own. In the case of I.I.T.s the standard is also of their own and cannot be imposed upon them. In the case of V. Radhakisan Vora (supra), the Supreme Court held that recommendation made by the subordinate authority but the same rejected by the superior authority on ground of requirement is right and the subordinate authority''s promise as intermediatory was an ultra vires act and as such the promise if any made by the subordinate authority is not binding on the superior authority. This decision goes contrary to the submission of the petitioners.
In the light of the discussion made hereinbefore it is crystal clear that the admission of the petitioner no. 2. Miss Anju Bhagat to the first year of the B. Tech. course of 1990-91 was rightly refused by the Indian Institute of Technology, Kharagpur, on the basis of the Guidelines as well as the policy of the Ministry of External Affairs, Government for External Affairs as referred to hereinbefore clearly indicate that the scheme was and is meant for the students from the developing countries and the policy cannot be changed for individuals but requires a policy review which can only be done by the Central Government. The candidates of Indian origin and residing in the developed countries as citizen of those countries such as US. UK. Canada etc., must come within the purview of developed countries and not developing countries. I am not in a position to give any relief to the petitioner no. 2. In that view of the matter the writ application stands dismissed without costs. The writ petition of Pallab Sarkar is also dismissed without costs as the points in both cases are identical.
Let xerox copy of the judgment be made available to the parties on usual undertaking and upon compliance of necessary formalities.