Ansuya Ahluwalia vs Union Of India & Ors.
2009 Latest Caselaw 2462 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No.9771/2009

%                       Date of Decision: 03.07.2009

Ansuya Ahluwalia                                            .... Petitioner
                        Through Mr. Ashutosh Ahluwalia, Father and
                                attorney of the Petitioner.

                                  Versus

Union of India & Ors.                                    .... Respondents
                        Through Mr.Mohinder J.S. Rupal, Advocate for
                                University of Delhi.
                                Mr.    M.L.     Khan,      Advocate  for
                                Respondent Nos. 1 & 5.
                                Mr. Jatan Singh, Advocate for AICTE.
                                Mr. Avnish Ahlawat with Ms. Latika
                                Choudhary & Ms. Simran Singh,
                                Advocates     for    Delhi   College  of
                                Engineering.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be               YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                 NO
3.     Whether the judgment should be reported in             NO
       the Digest?


ANIL KUMAR, J.

*

The petitioner claims implementation of alleged scheme of quota

for foreign / PIO's students by University of Delhi and Delhi College of

Engineering pursuant to notification dated 21st January, 2004 of All

India Council for Technical Education and for consideration of the

candidature of the petitioner for the academic year 2009-10 out of

supernumerary quota of 15 % for foreign nationals / Persons of Indian

Origins.

The petitioner holds passport of United States of America as she

was born there on 1st May, 1991. The petitioner passed her CBSE

examination from Delhi Public School, R.K. Puram with 92.4% mark

and with a PCM average of 95%.

According to petitioner after passing her CBSE exam from Delhi,

she is a candidate of Delhi region as per the eligibility conditions laid

down for admission to Delhi College of Engineering and Netaji Subhash

Institute of Technology under the combined entrance examination (CEE)

scheme.

Though the petitioner is not a citizen of India, however, her

admission form for Combined Entrance Examination was accepted and

she was allowed to appear for admission to Bachelor of Engineering

Degree course offered by Faculty of Technology, University of Delhi and

her rank in the entrance examination is 2723.

After obtaining the rank of 2723 in the Combined Entrance

Examination for admission to Bachelor of Engineering Degree course,

petitioner claims that respondents No.2 & 3 should implement the

scheme of providing 15% supernumerary seats quota for foreign

students and that she should be considered for admission in the said

quota.

According to the petitioner, in 2004 the Prime Minister of India

during Parvasi Bhartiya Divas announced for supernumerary quota of

15% over and above the seats available, to be reserved for PIOs/NRIs in

technical and educational institutions. It is contended that a policy

notification dated 21st January, 2004 was published on 26th February,

2004. The said notification of All India Council for Technical Education

is applicable to foreign nationals / persons of Indian Origins (PIOs) /

children of Indian workers in gulf Countries seeking admission to

AICTE approved institutions in terms of para 2 of the said notification.

Para 4 of the said notification contemplates 15% seats on

supernumerary basis. Para 4 (a) of the notification is as under:-

"Foreign Nationals/PIOs/Children of Indian Workers in the Gulf Countries".

Under these Regulations fifteen percent (15%) seats in all the institutions / University Departments, approved by AICTE, offering technical course leading to Diploma. Degree and Post- Graduate Degree in Engineering and Technology, Architecture & Town Planning, Pharmacy, Applied Arts, MBA & MCA, Hotel Management & Catering Technology shall be allowed on supernumerary basis from amongst Foreign Nationals / Persons of Indian Origin (PIOs) / Children of Indian Workers in the Gulf Countries, over and above the approved intake provided that 1/3rd of the 15% shall be reserved across different disciplines in the educational institution, for the Children of Indian Workers in the Gulf Countries. However, any vacant seats out of 1/3rd category shall be reverted to the quota of 2/3rd meant for PIO/Foreign Nationals.

This is subject to the availability of adequate infrastructure facilities in the applicant institutions, to be verified by AICTE, based on its Norms and Guidelines. These supernumerary seats shall be exclusively meant for these category of students in the diploma, under-graduate and post- graduate courses with a rider that under no circumstances a seat remains unfilled shall be allocated to anyone other than a foreign student / PIO. Foreign Nationals / persons of Indian Origin (PIOs) / Children of Indian Workers in the Gulf Countries admitted in an AICTE approved institutions through Indian Council for Cultural Relations (ICCR) or as Government of India nominee shall be included within this 15% ceiling".

Thus para 4 (a) of the said notification contemplates 15% seats on

supernumerary basis subject to the availability of adequate

infrastructure facilities in the institutions, to be verified by AICTE,

based on its norms and guidelines.

Reliance has also been placed by the petitioner to a reply dated

26th October, 2006 to the letter of the petitioner dated 28th September,

2006 by the Joint Secretary of MOIA stating that Government of India

has allowed 15% supernumerary seats in technical institutions

approved by AICTE. The petitioner has also relied on a notification

dated 11th April, 2005 contemplating parity between the overseas

citizens of India and Non-Resident Indians in respect of all facilities

available in economic, financial and educational fields.

15% quota is also sought by the petitioner on the ground that

several other institutions in NCR like Jamia Hamdard, New Delhi,

Greater Noida Institute of Technology, Greater Noida having inferior

facilities have already implemented notification of All India Council for

Technical Education reserving 15% seats on supernumerary basis.

The father of the petitioner, her attorney, had also sought

information under the Right to Information Act from respondent no.2

regarding implementation of notification of All India Council for

Technical Education and it was revealed that the reasons for not

implementing the scheme is lack of infrastructure.

The petitioner claims that considering the facilities available at

the other institutions which have already implemented the notification,

the respondents No. 2 & 3 cannot take shelter under the plea of lack of

infrastructure and consequently the respondent should fix 15% quota

on supernumerary basis and consider the petitioner under the said

quota.

The petitioner has also claimed that though the quota for SC/ST

& OBC were implemented within a year when HRD Ministry came down

upon the authority of respondent no.2, however, despite an earlier

notification by All India Council for Technical Education the scheme for

providing supernumerary quota for foreign students has not been

implemented.

I have heard the father of the petitioner who has appeared as her

attorney. The notification dated 21st January, 2004 ex facie is

applicable to the institutions which are approved by All India Council

for Technical Education. The notification contemplates 15% seats

subject to the availability of adequate infrastructure facilities in the

concerned institutions to be verified by AICTE based on its norms and

guidelines in terms of para 4 (a) of said notification.

Admittedly, the respondent no.2 is not an institution approved by

AICTE nor the college of respondent no.2, respondent no.3 is an

approved institution of All India Council for Technical Education. The

contention of pervasive control by All India Council for Technical

Education over the universities was repealed by the Supreme Court in

Bharathidasan University and Another v. All India Council for Technical

Education & Others, 2001 (8) SCC 676. The Supreme Court had held

that considering the provisions of All India Council for Technical

Education and provision of UGC Act, it is apparent that the role of All

India Council for Technical Education vis-à-vis the universities is only

advisory, recommendatory and a guiding factor. It was held that All

India Council for Technical Education does not act as an authority

empowered to issue and enforce any sanction by itself except

submitting a report to UGC for appropriate action. The Supreme Court

in para 10 at page 685 had held as under:-

10. ....................All these vitally important aspects go to show that AICTE created under the Act is not intended to be an authority either superior to or supervise and control the universities and thereby superimpose itself upon such universities merely for the reason that it is imparting

teaching in technical education or programmes in any of its departments or units. A careful scanning-through of the provisions of the AICTE Act and the provisions of the UGC Act in juxtaposition, will show that the role of AICTE vis-à- vis the universities is only advisory, recommendatory and a guiding factor and thereby subserves the cause of maintaining appropriate standards and qualitative norms and not as an authority empowered to issue and enforce any sanctions by itself, except submitting a report to UGC for appropriate action. The conscious and deliberate omission to enact any such provision in the AICTE Act in respect of universities is not only a positive indicator but should be also one of the determining factors in adjudging the status, role and activities of AICTE vis-à- vis universities and the activities and functioning of its departments and units. All these vitally important facets with so much glaring significance of the scheme underlying the Act and the language of the various provisions seem to have escaped the notice of the learned Judges, their otherwise well-merited attention and consideration in their proper and correct perspective......."

Consequently, on the basis of the notification dated 21st January,

2004 the petitioner cannot claim that the respondents No. 2 & 3 must

reserve 15% seats for foreign students in terms of the notification by All

India Council for Technical Education.

In any case, the 15% seats are subject to availability of adequate

infrastructure facilities which are to be verified by All India Council for

Technical Education based on its norms and guidelines. In case, the

seats can be created on the basis of norms and guidelines of All India

Council for Technical Education and the same seats cannot be created

on the basis of norms and guidelines of the affiliated universities, an

institution affiliated to a university cannot be compelled to have 15%

seats on the basis of alleged infrastructure. In reply to a RTI query by

the father of the petitioner, the reason for not implementing 15%

supernumerary seats has been disclosed as lack of infrastructure and

modalities.

The learned counsel for All India Council for Technical Education

who has appeared pursuant to advance notice has contended that

though under Section 10(k), the power of All India Council for Technical

Education is advisory, however, the power under Section 10(o)

regarding admission of students to technical institutions and

universities imparting technical education is mandatory. The contention

of learned counsel of All India Council for Technical Education cannot

be accepted as it will lead to a anomalous situation wherein an

institution cannot be given any mandatory direction, however, a

university to which the institution is affiliated can be given mandatory

direction in respect of admission.

In any case, availability of infrastructure in an institution

affiliated to the university has to be judged on the basis of norms

prescribed by the university and not on the basis of the norms

prescribed by All India Council for Technical Education. There can be

situations where the seats can be created on the basis of norms of

AICTE but the seats may not be permissible within the norms of

Universities.

In the present facts and circumstances, the respondent no.3 has

contended that it does not have infrastructure facilities to have

supernumerary quota of 15% for the foreign citizens and persons of

Indian origin. The petitioner cannot insist that availability of

infrastructure is to be adjudged on the basis of norms laid down by All

India Council for Technical Education. The plea of the petitioner that

other institutions in NCR have introduced 15% supernumerary quota

for NRIs/PIOs cannot be a ground at this stage to direct the respondent

to have the said quota. The respondents No. 2 & 3 also cannot be

directed to have the said quota on the ground that they were able to

have quota for SC/ST & OBC within one year of the concerned

notification.

In any case, the petitioner has already appeared as general

candidate and her merit list ranking is 2723 as a general candidate.

The quota for foreign students/NRIs/PIOs was not announced nor has

any examination been conducted for such students. It is apparent that

in this circumstance, such students who can claim reservation under

such category have not applied nor appeared in the entrance

examination. In the circumstances the petitioner shall not be entitled to

claim that a supernumerary quota of 15% be created for foreign

nationals/PIOs and her candidature be considered in the said quota

though she has appeared as general candidate and her ranking is 2723.

The learned counsel for the respondents No.2 & 3 has contended

that petitioner may not get admission in general category with such low

ranking and that the present petition has been filed with a view to

somehow ensure admission to respondent no.3.

In the totality of the facts and circumstances and for the forgoing

reasons, the petition is without merit and it is, therefore, dismissed in

limine.

July 03, 2009                                            ANIL KUMAR, J.
'gsr'