Govt. School Teachers ... vs University Of Delhi And Ors.
2006 Latest Caselaw 1070 Del

JUDGMENT

Vikramajit Sen, J.

Page 2183

1. This batch of Writ Petitions lay siege to the Respondent's policy of giving preference for the purposes of admission in educational courses to persons who have cleared the 10+2 examinations from Schools located in the National Capital Territory of Delhi (NCT of Delhi). Over three decades ago, in Kumari N. Vasundara v. State of Mysore 1971 (2) Supreme Court Cases 22, the Apex Court has extended its imprimatur to an admission precondition mandating as many as of as much as ten years residence in the State where the College is situate.

2. The grievance which has been expressed in the Govt. School Teachers Association Petitions is to the effect that in several cases students who are regularly domiciled for several years in Delhi along with their parents may be left with no alternative but to take admission in Schools in the satellite Page 2184 townships and environs of Delhi, such as in Noida, Gurgaon etc. The contention is that since these students are domiciled in Delhi they ought not to be excluded from seeking admission in the Delhi University merely because they have schooled in the satellite township of Delhi. One of the eligibility criteria that has been prescribed by the University of Delhi is that candidates should have passed the 12th Class examination under 10+2 system conducted by the CBSE/Council of Indian School Certificate Examination/Jamia Millia Islamia, New Delhi. It is further stipulated that every 'candidate must have studied 11th and 12th Classes regularly from a recognized school with the National Capital Territory of Delhi.' The Delhi University has however set apart 15 per cent of the seats for allotment according to the Merit of the All India List.

3. In WP (C) No.6139-44/2006 titled as Sarita v. S.C.E.R.T., the Petitioners have assailed the policy of the State Council of Education Research and Training (SCERT) whose prospectus prescribes that 'candidates seeking admission to ETE course must have passed Sr. Secondary Examination (10+2) by CBSE, Delhi or its equivalent examination of any other recognized Board/University, from the Schools of National Capital Territory (NCT) of Delhi only.' It is admitted that this has the consequence of total reservation for Delhi students. Petitioners No.2 to 6 are domiciled in the State of Haryana and have passed their 10+2 presumably from schools located in Haryana. The Petitioners have prayed that the requirement of having passed 10+2 from a School within the NCT of Delhi should be struck down. It is noteworthy and ironical that the State of Haryana also requires that its students should be domiciled in Haryana for them to be entitled to seek admission in educational institutions in that State. It will be relevant to recall that in Anant Madaan v. State of Haryana , the Court had upheld the policy of the State of Haryana which requires that students should have studied the 10th, 10+1 and 10+2 classes as regular candidates in recognized institutions in Haryana. This policy is more parochial than the one assailed by these Petitioners.

4. In WP (C) No.1531-32/2006 titled as Independent Schools Federation of India (Regd.) v. Guru Gobind Singh Indraprasth University, the requirement of domicile in Delhi as a pre-requisite for seeking admission in educational institutions in Delhi has been assailed. The Petitioners in WP (C) No.7242/2003 have joined in these prayers, namely, that students from the satellite township otherwise domiciled in Delhi should be considered for admission in Delhi. However, the platform on which the two sets of Writ Petition are predicated are totally disparate since the argument in Independent Schools Federation is that is is unconstitutional to prescribe domiciliary requirements in any part of India.

5. In Saurabh Chaudri v. Union of India , the Constitution Bench had to determine the Constitutional validity of reservations predicated upon domicile or institution in regard to admissions to post- Page 2185 graduate courses in Government Medical College. In these Petitions institutional preferences are not involved and admissions are at the undergraduate level. The Hon'ble Court had noted that in Magan Mahrotra v. UOI (2003) 3 Scale 101, a three-Judge Bench of the Apex Court held that apart from institutional preferences no other preferences including reservation on the basis of residence is envisaged in the Constitution in view of the decision in Dr.Pradeep Jain v. Union of India . Nevertheless, so far as the latter precedent is concerned, there is no debate that the Court had laid down that up to 85% of the seats could be filled on the criteria of domicile. Mr.Khanna has pointedly clarified that this ratio does not have ubiquitous application since the Court was only concerned with the MBBS degree. Pradeep Jain has been further explained in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad , where it has been specifically held that 'not less than 15 per cent of the total number of seats in each medical college or institution, without taking into account any reservations validly made shall be filled on the basis of All India Entrance Examinations. This new formula is in our opinion fair and just....' Even in Saurabh' Chaudri case, in paragraph 72 the original scheme as framed in Dr. Pradeep Jain case was reiterated. The Constitution Bench in Saurab Chaudri made these observations:

The first question that arises for consideration is, whether the reservation on the basis of domicile is impermissible in terms of Cl. (1) of Art. 15 of the Constitution of India

The term `place of birth' occurs in Cl. (1) of Art. 15 but not `domicile'. If a comparison is made between Art. 15(1) and Art. 16(2) of the Constitution of India, it would appear that whereas the former refers to `place of birth' alone, the latter refers to both `domicile' and `residence' apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression `place of birth' is not synonymous to the expression 'domicile' and they reflect two different concepts.

However, in paragraph 32 the Court recorded that the answer to the question must be rendered in the negative, viz. that reservations on the basis of domicile are permissible. The Constitution Bench has not overruled Dr. Pradeep Jain .

6. In WP (C) No.1531-32/2006, Mr.Gupta has reiterated the oft- quoted excerpt from the poem of Rabindranath Tagore employed by V.R. Krishna Iyer, J. in Jagdish Saran v. Union of India , which alludes to the country breaking-up into fragments by narrow domestic walls. Despite mentioning this excerpt the Supreme Court in Dr. Pradeep Jain as well as Page 2186 Saurabh Chaudri has found wisdom in carrying out reservations amounting to 85 per cent on the basis of domicile. It appears to me to be unfair to dislocate young students from their homes and parents which would inevitably and inexorably happen if no domiciliary consideration or preferences are maintained. Extraordinary students can secure admission in Delhi Colleges according to their merit; and students from Delhi who have faired poorly cannot be heard to complain that they have had to move to another State. The policy caters fairly to the entire student community. Accordingly, I find no merit in these Writ Petitions.

7. So far as WP (C) No.7242/2003 is concerned, it has indubitably raised a very complicated and delicate question. It is a common knowledge that students whose families are firmly domiciled in Delhi take admission in Schools outside NCT of Delhi. However, one must not forget that every rule will invariably create some hard situations. So far as the reference to Schools in the NCT are concerned the categorization is not arbitrary, and bears a nexus to the objectives sought to be achieved. So long as these two concomitants are present the Writ Court should abjure from interfering with the Policy. Having said that, there is also weight in Mr.Khanna's arguments that there is a great influx of students in Delhi in the 11th and 12 Classes. The Respondents should consider the advisability of extending residency requirements of students from the 10th class onwards. This will help to separate the genuine students from those joining Schools in Delhi only to avail the 85 per cent reservation. Even if this is so done it would, however, not alleviate the disadvantage and suffering of those students who live in Delhi but attend Schools outside the NCT of Delhi. The Writ Petitions are dismissed with these observations.

8. WP (C) No.6139-44/2006 are allowed to the extent that the SCERT must for the coming academic years fall in line with the ratio recommended by the Apex Court in Pradeep Jain and subsequent judgments. The eligibility criteria should be amended to the extent of allowing 15% quota to be filled up purely by merit from amongst candidates who are domiciled outside the NCT of Delhi or an All-India basis. These changes should simultaneously be carried out in other States also, including Haryana.

9. Learned Counsel for the Respondents had raised very cogent objections as to the locus standi of the Petitioner in WP(C) No.7242//2003 and WP(C) No.1531-32/2006, but in the view expressed above it would be unnecessary to delve into them.

10. Parties to bear their respective costs.