Delhi High Court
Manisha Yadav vs University Of Delhi Anr on 10 September, 2008
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5630/2008
Date of Decision : 10.09.2008
MANISHA YADAV ..... Petitioner
Through Mr. R.K. Saini, Adv.
versus
UNIVERSITY OF DELHI ANR. ..... Respondent
Through Mr. A. Mariarputham, Adv. D.U.
Mr. T. Singhdev, Adv. for MCI
Mr.Gaurav Duggal for UOI
% CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VIPIN SANGHI, J. (Oral)
1. The Faculty of Medical Sciences, University of Delhi issued a
Bulletin of Information on 27.02.2008 in respect of admission to the
MBBS Course for the session 2008-09 in various colleges affiliated to
it, including the Lady Harding Medical College (LHMC). The
petitioner is the student belonging to the Other Backward Classes
(OBC) category . She appeared in the competitive examination
conducted for admission to, inter alia, LHMC by the respondents. She
secured 81st position amongst OBC category candidates, and was
ranked 28 amongst OBC category girl candidates. Later rank is
relevant since LHMC admits only girl candidates. Since the petitioner
has failed to secure admission in LHMC as an OBC candidate, she has
preferred the present writ petition.
2. Till the academic session 2007-2008, the total number of seats
WP(C) No.5630/2008 1 of 12
in LHMC for the MBBS course were 130. This was raised from the
academic session 2008-2009 to 150. The grievance raised by the
petitioner in this petition is that even though the number of seats in
the MBBS Course in LHMC has been increased from the current
academic session i.e. 2008-2009 from 130 to 150 i.e. by 20, the
number of seats allocated to the OBC category is only 14. According
to the petitioner, all the 20 seats should have been allocated for the
OBC category candidates who are entitled to 27% reservations.
3. The dispute, therefore, centers around the calculation of
number of reserved seats for the OBC category students seeking
admission to the MBBS course in the LHMC affiliated to University of
Delhi.
4. The Central Education Institution (Reservation and Admission)
Act, 2006 (the Act) was brought into force on 3.1.2007. The purpose
of this Act was to lay down the percentage of reservation to be
provided in Central Educational Institutions (CEI) for Scheduled
Castes, Scheduled Tribes and OBC candidates as 15%, 7.5% and 27%
respectively. LHMC is a CEI since it is an institution which is
maintained by the Central Government and is also affiliated to the
University of Delhi which is a University established and incorporated
under the Central Act i.e. Delhi University Act.
5. For the academic session 2007-2008 the distribution of 130
seats then available for the MBBS course in LHMC was as follows:
MBBS Course
Name of Seats to be Seats to be Seats to be Total
the filled in on the filled in by filled in by Seats
Medical basis of D.G.H.S. Govt. of India
College DUMET
General SC ST 15% Quota NGOI
WP(C) No.5630/2008 2 of 12
After the increase in the number of total seats from 130 to 150, the
distribution of the 150 seats as done by the respondent University is
as follows:
Seats earmarked to be filled up
Seats available to be filled up
6. At the time of argument, learned counsel for the petitioner Mr.
R.K. Saini has submitted that the petitioner has no grievance so far as
the allocation of higher number of seats to the SC and ST categories
is concerned, as well as to the increase in the number of seats
surrendered under the All India quota. However, he submits that the
calculation of 55 seats for the unreserved general category is
incorrect, inasmuch as, only 51 seats were available to the
unreserved general category candidates for admission in the
academic session 2007-2008. He, therefore, submits that if the
number of seats for the unreserved general category candidates is
maintained at the same level, i.e. 51, the number of seats that ought
to have been made available to the OBC category candidates should
have been 18 and not 14.
7. On the other hand, the respondent University, to justify the
WP(C) No.5630/2008 3 of 12
computation of 55 as the number of seats for the unreserved general
category candidates, after the increase in the total number of seats
from 130 to 150 in LHMC has submitted that the Director General of
Health Services, Government of India issued a communication on
10.3.2008 whereby it was conveyed to the concerned institutions that
the reservation for the SC and ST to the extent of 15% and 7.5% in
the medical institutions should be provided after excluding the 15%
seats which are surrendered under the All India quota for which a
central examination is held on All India basis. This decision was
taken since reservation was being granted for SC and ST candidates
in the All India 15% quota. After the issuance of this communication,
on 10.4.2008 the Supreme Court delivered its final judgment in
Ashok Kumar Thakur vs. UOI (2008) 6 SCC 1 whereby the
Supreme Court upheld the grant of 27% reservations to the OBC
category candidates. Prior to that, the provision of reservation to the
OBC category candidates was put on hold by the Supreme Court vide
order dated 29.3.2007 reported as Ashok Kumar Thakur vs. UOI &
Ors. (2007) 4 SCC 361. This interim stay came to be vacated only on
10.4.2008. It is submitted that with the issuance of the
communication dated 10.3.2008, the break up of the number of seats
as was obtained, before the increase in the number of seats from 130
to 150, was as follows:
Total seats = 130
15% All India Quota = 20
Balance seats = 110
15% SC quota out of 110 = 17
7 ½ ST quota out of 110 = 8
Seats for Govt. of India nominees = 30
The total of the above (17+8+30) = 55
General category seats 110-55 = 55
8. Learned counsel for the respondent submits that the
WP(C) No.5630/2008 4 of 12
respondents have, therefore, proceeded to allocate 55 seats for the
unreserved general category and after accommodating the said 55
seats, 14 seats have been reserved for the OBC category candidates
when the number of seats was raised from 130 to 150.
9. The reservation for the OBC to the extent of 27% in the annual
permitted strength is to be achieved in the manner prescribed in
Section 5 of the Act. Section 5(1) is relevant and reads as follows:
"5. Mandatory increase of seats.-(1) Notwithstanding anything
contained in clause (iii) of Section 3 and in any other law for
the time being in force, every Central Educational Institution
shall, with the prior approval of the appropriate authority,
increase the number of seats in a branch of study or faculty
over and above its strength so that the number of seats,
excluding those reserved for the person belonging to the
Scheduled Castes, the Scheduled Tribes and the Other
Backward Classes, is not less than the number of such seats
available for the academic session immediately preceding the
date of the coming into force of this Act."
10. To decide the issue as to whether the number of seats available
to the unreserved general category candidates should be taken as 51
or as 55, and simultaneously to decide whether the number of seats
reserved for the OBC category candidates was rightly calculated as
14, or it should have been 18, one most not only look to the language
of Section 5(1) of the said Act, but also to the background in which,
and the purpose for which the increase in the number of seats from
130 to 150 was effected by the concerned authorities.
11. A reading of Section 5 of the Act shows that the scheme
envisaged by Parliament is to achieve reservations for OBC category
in CEIs of 27% of the annual permitted strength over a three years
period commencing from calender year 2007. At the same time, the
provision of such reservation for OBC category candidates cannot be
at the expense of seats that were available for the unreserved general
WP(C) No.5630/2008 5 of 12
category candidates immediately preceding the date of coming into
force of the Act. Therefore, the reservation to be provided in favour
of the OBC category candidates has to be achieved by increasing the
annual permitted strength with the prior approval of the appropriate
authority. Section 6 of the Act obliges the CEIs to take all necessary
steps which are required, for giving effect to the provisions of the
Act i.e. for the purpose of providing reservation of seats in admission
for the OBC category candidates upon the commencement of the Act.
It was in consequence of the aforesaid provisions of the Act, that
LHMC with the approval of the Central Government was able to
increase the number of seats i.e. its annual permitted strength from
130, which existed upto the academic session 2007-2008 to 150 from
the academic session 2008-2009 onwards. 27% of 150 seats comes to
40.5 which would have to be rounded of to 41 seats. That would be
the number of seats that the OBC category candidates would be
entitled to reservation on, if one were to provide full 27% reservation
to the said category from the current academic session i.e. 2008-2009.
However, as aforesaid, reservation for the OBC category candidates
cannot be at the expense of the unreserved general category
candidates, inasmuch, as the number of seats available to them till
the last academic session i.e. prior to the enforcement of the Act, has
to be maintained. Even though the Act was enforced on 3.1.2007 for
all practical purposes, the same should be taken to have been
enforced from 10.4.2008, since, as aforesaid, the said Act was put on
hold by the Supreme Court on 29.3.2007 and the stay got vacated
only on 10.4.2008. Between 3.1.2007 and 29.3.2007 no reservation
for the OBC category was provided in LHMC, since the annual
permitted strength did not undergo an upward revision between
WP(C) No.5630/2008 6 of 12
3.1.2007 and 29.3.2007 under Section 5 of the Act.
12. Coming to the background in which the governmental decision
contained in the communication dated 10.3.2008 was taken, It
appears that earlier there was no reservation made for the SC and ST
candidates in the 15% All India quota for MBBS and BDS seats. In
respect of the All India P.G. Medical/Dental seats, the Supreme Court
passed an order on 31.1.2007 in WP(Civil) No.138/2006 Abhay Nath
& Anr. vs. University of Delhi & Anr. whereby it directed the
provision of 15% reservation for Scheduled Castes and 7.5% for
Scheduled Tribe candidates from the academic session 2007-2008.
Following that decision, the Government of India took a decision that
even in respect of the 15% All India quota MBBS/BDS seats,
reservation for the Scheduled Castes and Scheduled Tribes
candidates to the extent of 15% and 7.5% should be introduced from
the academic session 2008-2009 onwards. It was, therefore, directed
by the Government of India vide communication dated 10.3.2008 that
the reservations for the Scheduled Castes and Scheduled Tribes to the
extent of 15% and 7.5% respectively, in admissions to MBBS/BDS
seats be calculated with reference to 85% of seats available with
States/Universities/Colleges after contributing 15% MBBS/BDS seats
to All India quota. This decision was specifically made applicable
from the academic session 2008-2009 onwards.
13. Some time after the aforesaid decision was taken, the final
decision of the Supreme Court in Ashok Kumar Thakur (supra) was
rendered by the Supreme Court on 10.4.2008 upholding the grant of
27% reservation in CEIs to candidates belonging to the OBC
category. The interim stay of reservations to the OBC category
candidates stood vacated on 10.4.2008.
WP(C) No.5630/2008 7 of 12
14. The decision contained in the communication dated 10.3.2008
was intended to be given effect to, and in fact was given effect to,
only from the academic session 2008-2009. It was not meant to be
given effect to retrospectively, and in fact did not interfere with the
allocation of seats to the various reserved classes and with the total
number of unreserved general seats, as they existed upto the last
academic session i.e. 2007-2008. It is not the respondent's case that
while computing the number of seats for the unreserved general
category candidates in the academic session 2007-2008 there was any
error. The decision contained in the Government communication
dated 10.3.2008 could not have been given retrospective effect, or to
be deemed to have come into effect from the academic session 2007-
2008. What Section 5(1) of the Act provides is, that while granting
reservation to the OBC category candidates upon increase in the
annual permitted strength, the number of seats, excluding those
reserved for persons belonging to Scheduled Casts, Scheduled
Tribes and the OBCs, is not less than the number of seats available
"for the academic session immediately preceding the date of
the coming into force of this Act." Therefore, one has to be
guided by what was the number of seats available to the unreserved
general category candidates immediately preceding the date of
coming into force of the Act.
15. The Court can take notice of the background in which the
scheme contained in Section 5 of the Act was evolved. Initially when
the Government sought to introduce 27% reservations for the OBC
category students there was large scale resentment and
demonstrations throughout the country by those belonging to the
general category/unreserved classes, as they saw it as potential
WP(C) No.5630/2008 8 of 12
diminution of the opportunities available to them for admission to
educational institutions. With a view to assuage the feeling of the
masses, and strike a balance in implementation of its reservation
policy, the Government evolved a formula that the reservations to the
OBC category candidates would be provided in such a manner that
the interests of the unreserved general category candidates is not
sacrificed. Consequently, while granting reservations to the OBC
category candidates by increasing the number of seats in CEIs,
Section 5 provided that the unreserved general category seats would
not be less than the number of seats available for the academic
session immediately preceding the date of coming into force of the
Act. The number of seats that were available in the unreserved
general category in LHMC in the last academic session i.e. 2007-2008
was only 51. It never touched the figure of 55. Had the final decision
in Ashok Kumar Thakur (supra) been rendered after the
completion of the admission process in the current academic session
i.e. 2008-2009, the respondent University may have been justified in
allocating 55 seats for the unreserved general category candidates
upon implementation of the Government of India decision contained in
the communication dated 10.3.2008. However, once the final decision
in Ashok Kumar Thakur (supra) was rendered on 10.4.2008, and
the provisions of the Act became enforceable, the respondent
University was bound to apply the provision contained in Section 5(1)
in letter and spirit and could not have proceeded to compute the
number of unreserved general category seats of the preceding
academic session on a hypothetical basis. It is impressible to take into
account the decision (contained in the communication dated
10.3.2008), taken after the commencement of the academic session
WP(C) No.5630/2008 9 of 12
immediately preceding the effective date of coming into force of the
Act (i.e. (10.4.2008), for the purpose of calculating the number of
such seats, i.e the unreserved general category seats) since the
decision (contained in communication dated 10.3.2008) is subsequent
in point of time to the commencement of that academic session (i.e.
2007-08), and has no bearing on that number as it was, on its express
terms, to take effect only from the next academic session.
16. The number of seats allocated to the unreserved general category
for the academic session 2007-2008 was 51. Consequently it was 51
seats which were required to be preserved for the unreserved general
category. By its impugned action the respondents have allocated four
extra seats in the unreserved general category, which otherwise
ought to have been made available to the OBC category candidates. I,
therefore, hold that for the OBC category candidates for the
academic session 2008-2009 there should have been 18, and not 14
MBBS course seats reserved at LHMC.
17. The petitioner approached the Court after the first round of
counseling was over at LHMC. The petitioner does not seek the
disturbance of the last 4 general category candidates who have been
granted admission at LHMC on seat Nos.52 to 55. Keeping in view
these facts, I direct the respondents, that in case any vacancies exist
or arise at LHMC within the general category (including in respect of
those seats which eventually get converted to general category seats
from other reserved categories), they should first be offered to the
OBC category candidates according to merit to the extent of 4 seats,
before offering them to any other candidate.
18. Quite apart from the issue raised in this petition, before I
dispose off this petition, I consider it appropriate to speak my mind on
WP(C) No.5630/2008 10 of 12
another aspect that has come to my notice. I find that in LHMC 30
seats have been allocated to be filled by nomination by the
Government of India. Earlier there were 130 seats in the said medical
college in the MBBS course. Now there are 150 seats in the said
course from the academic session 2008-09 and 30 seats continue to be
filled by nominees of the government i.e upto 20% of the total
number of seats. From the number of cases being filed in the courts
relating to admission to medical courses and the great disparity
between the number of applicants seeking admission and the number
of seats available, it is clear that there is cut throat competition
amongst the candidates. On account of the paucity of seats even
highly meritorious candidates are not able to secure admission. I am
conscious of the Constitution Bench decision of the Hon'ble Supreme
Court in Kumari Chitra Ghosh & Anr. v. UOI & Ors. 1969(2) SCC
228, wherein the Supreme Court has upheld the right of the
Government to reserve seats to be filled by it by nomination in
institutions set up by it. The justification offered by the Government,
and accepted by the Supreme Court to uphold the provision of
nomination quota in that decision was, inter alia, that many States
and Union Territories did not have medical institutions of their own.
That decision was rendered nearly 40 years ago and since then, with
overall economic development of the country, a sea change has taken
place with the opening of State funded and private medical and other
institutions throughout the country.
19. Keeping in view these aspects, I am of the opinion that the
Central Government should have a relook at the extent of nomination
seats that it has reserved for being filled by its nominees. The review
of this aspect be done within three months. The Central Government
WP(C) No.5630/2008 11 of 12
is directed to file an affidavit stating its position on the aforesaid
aspect after it has reviewed the position in view of the changed
circumstances, and should also disclose the guidelines and principles
being followed by it for the purpose of making nominations. The
affidavit should disclose the names of the candidates nominated for
the academic session 2008-09 by the Central Government and the
category in which each of them falls. The affidavit be filed within 20
weeks.
List the matter before Court on 18.02.2009 for directions.
VIPIN SANGHI
JUDGE
SEPTEMBER 10, 2008
aj
WP(C) No.5630/2008 12 of 12
