Ashhar Musharib Firdausi vs University Of Delhi & Ors.
2010 Latest Caselaw 3727 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 11th August, 2010.

+                           W.P.(C) No.4378/2010

%

ASHHAR MUSHARIB FIRDAUSI                 ..... PETITIONER
                Through: Mr. Naushad Ahmad Khan with Mr.
                         Rajesh Kumar Verma, Mr. Aquib Ali
                         & Mr. Elancheziyan, Advocates

                                      Versus

UNIVERSITY OF DELHI & ORS.                 ..... RESPONDENTS
                 Through: Mr. Mohinder J.S. Rupal, Advocate
                           for respondents 1 & 2.
                           Mr. Neeraj Chaudhary, CGSC with
                           Mr. Khalid Arshad & Mr. Mohit
                           Auluck, Advocates for respondent
                           no.3.
                           Ms. Sana Ansari & Mr. Jitendra,
                           Advocates for Ms. Zubeda Begum,
                           Advocate for respondents 4 & 7.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    Yes

2.       To be referred to the reporter or not?             Yes

3.       Whether the judgment should be reported            Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The important question which arises for consideration in this writ

petition is whether the reservation of 27% seats for Other Backward Classes

(OBC) under Section 3 of the Central Educational Institutions (Reservation

in Admission) Act, 2006 is dependent on increase in the number of seats as

provided in Section 5 of the Act, i.e. if the number of seats is not increased,

whether it is the OBC candidates or the General (Unreserved) category

candidates to suffer.

2. The petitioner claiming to be an OBC appeared for admission to

MBBS course offered by the Institutions under the Faculty of Medical

Sciences, University of Delhi and secured 97th rank in the OBC category.

The petitioner as per his rank is not entitled to admission. However, the

present petition has been filed contending that the Medical Colleges under

the Faculty of Medical Sciences, University of Delhi have not reserved 27%

of the seats for OBCs as they are required to do under the Act. It is the case

of the petitioner that if such 27% of the seats are reserved for OBCs, the

petitioner would be entitled to admission.

3. The petition came up first before this Court on 5th July, 2010. The

counsel for the Faculty of Medical Sciences, University of Delhi appearing

on advance notice stated that the University runs only the University College

of Medical Sciences and is thus responsible therefor only; it was informed

that of the other two Colleges falling under the Faculty of Medical Sciences,

University of Delhi namely the Maulana Azad Medical College is run by the

Government of NCT of Delhi and the Lady Hardinge Medical College is

under the Central Government and the question of reservation in the said

Colleges is decided by the Government of NCT of Delhi and the Central

Government respectively. The role of the University of Delhi vis-à-vis other

two colleges was informed to be confined to the conduct of examination for

admission only. In view of the said statement, the Union of India and the

Government of NCT of Delhi were ordered to be impleaded as parties to the

petition. While issuing notice of the petition, it was directed that one seat

may be kept vacant for the petitioner if ultimately found entitled to

admission.

4. On the next date i.e. 9th July, 2010, the counsel for University of Delhi

sought variation of the interim order contending that the 27% reservation for

OBCs is to be out of the newly created seats only and the interim order was

resulting in a seat being reserved out of the General Category and to which

the petitioner in any case had no right. However, the said contention was

not accepted at that stage and the interim order continued.

5. Counter affidavits have been filed on behalf of the University, Lady

Hardinge Medical College, Directorate General of Health Services,

Government of India and Maulana Azad Medical College.

6. The Lady Hardinge Medical College has contended that it being a

women's College and the petitioner being a male is in any case not entitled

to admission therein and it is not a necessary or proper party. It was

however informed to the said College that irrespective of whether the

petitioner can be admitted thereto or not, it ought to respond to the averment

in the petition of being in any case required to reserve 27% of its seats for

OBCs. However, no further affidavit has been filed.

7. The University in its counter affidavit has stated that the last student

admitted to the University College of Medical Sciences in the OBC category

has the rank of 65 and the petitioner being placed at rank 97 has no case for

admission in the said College even in case of vacancy. It is further pleaded

that the University College of Medical Sciences has already reserved 27% of

the seats for OBCs and all of which have been filled up.

8. The Directorate General of Health Services, Government of India has

in its counter affidavit stated that it is responsible for admission under the

15% All India Quota only and in which quota, 27% of the seats are being

reserved for OBCs. It is also stated therein that the Government of India has

already issued instructions to all central institutions for maintaining the

infrastructure and other teaching facilities in accordance with Medical

Council of India's norms. It is also informed that a meeting of

representatives of all concerned Institutions, including LHMC was called on

22nd January, 2010 to review the implementation of reservation for OBC

candidates and to prepare Annual Plan 2010-11 in respect of 27% OBC

reservation in all the Central Government Educational Institutions and to

increase the seats as per new norms of MCI. Minutes of the said meeting

have been annexed to the counter affidavit; with respect to LHMC, it is

recorded therein that though some seats were increased in 2008-09 but in the

years 2009-10 & 2010-11 there has been no increase and that by the end of

the year 2011 the required infrastructure will be made available. LHMC in

the said Meeting sought extension of time of minimum two years for giving

full effect to 27% reservation. From the minutes of the said meeting, it

transpires that other Medical Colleges are also facing problems in increasing

seats in terms of Section 5 of the Act. The Meeting ended with decision to

seek extension of two years for increasing the seats.

9. The Maulana Azad Medical College in its affidavit has stated that

upon being required to make reservations under the Act aforesaid, reference

was made inter alia to Medical Council of India to increase the intake

capacity for MBBS by 5% of the existing strength; that the said proposal is

still pending consideration.

10. What has emerged from the pleadings aforesaid is that of the three

aforesaid Colleges, only the University College of Medical Sciences has

reserved 27% seats for the OBCs; the other two i.e. Lady Hardinge Medical

College & Maulana Azad Medical College have not. From the minutes

aforesaid however it transpires that Lady Hardinge Medical College though

has reserved some seats for OBCs but is not reserving to the extent of 27%.

11. The question which arises for consideration is whether the reservation

of 27% seats for OBC is to come into effect immediately on promulgation of

the Act aforesaid or is to be out of the seats to be increased, also under the

said Act. The relevant provisions of the Act in this regard are contained in

Section 3 & Section 5 thereof which are as under:

"3. Reservation of seats in Central Educational Institutions - The reservation of seats in admission and its extent in a Central Educational Institution shall be provided in the following manner, namely:-

(i) out of the annual permitted strength in each branch of study or faculty, fifteen per cent seats shall be reserved for the Scheduled Castes;

(ii) out of the annual permitted strength in each branch of study or faculty, seven and one-half per cent seats shall be reserved for the Scheduled Tribes;

(iii) out of the annual permitted strength in each branch of study or faculty, twenty-seven per cent seats shall be reserved for the Other Backward Classes.

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 annual permitted strength so that the number of seats, excluding those reserved for the persons 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.

(2) Where, on a representation by any Central Educational Institution, the Central Government, in consultation with the appropriate authority, is satisfied that for reasons of financial, physical or academic limitations or in order to maintain the standards of education, the annual permitted strength in any branch of study or faculty of such institution cannot be increased for the academic session following the commencement of this Act, it may permit by notification in the Official Gazette, such institution to increase the annual permitted strength over a maximum period of three years beginning with the academic session following the commencement of this Act; and then, the extent of reservation for the Other Backward Classes as provided in Clause (iii) of Section 3 shall be limited for that academic session in such manner that the number of seats available to the Other Backward Classes for each academic session are commensurate with the increase in the permitted strength for each year."

12. On a plain reading of the provisions aforesaid, I am of the opinion that

reservation of 27% seats for OBCs is to come into effect immediately and is

not dependent on increase in seats under Section 5 of the Act.

13. The controversy aforesaid has also been the subject matter of an

earlier judgment dated 10th September, 2008 of this Court in WP(C)

No.5329/2008, titled Tandan Kumar Vs. University of Delhi. This Court

held that though the Act aforesaid had come into force on 3rd January, 2007

and with effect from the academic session commencing in 2007 but owing to

the interim order dated 29th March, 2007of the Supreme Court in Ashoka

Kumar Thakur Vs. Union of India (2008) 6 SCC 1 (whereby the Supreme

Court upheld the reservation of 27% seats for OBC), for all practical

purposes the Act had come into force on 10th April, 2008 only i.e. w.e.f.

beginning of the academic session 2008 and with which session this Court in

Tandan Kumar (supra) was concerned. Taking a cue from Section 5 of the

Act, it was held that the applications for increase in intake capacity could

have been submitted thereafter only. It was also noted that qua Medical

Colleges, the intake capacity could not be increased without approval of the

MCI. This Court, while holding the petitioner therein to be not entitled to

any relief of admission in the OBC category in the year 2008 held that "the

grant of reservations to the OBC has to be only from out of the additionally

created / approved seats". Section 5(1) was held to be preserving the number

of seats for the General Category (Unreserved Seats) as were existing before

the enforcement of the Act. It was thus held that reservation for OBC

category cannot be granted by reserving any seats from the unreserved

category seats. This Court however directed the Maulana Azad Medical

College & Lady Hardinge Medical College to ensure compliance of the

provisions of the Act from the next academic session of 2009-10.

14. Unfortunately, the order aforesaid of this Court in Tandan Kumar

remains uncomplied. As aforesaid, inspite of the Act having come into force

at least two academic sessions ago, the seats reserved under the Act for

OBCs remain non-existent in Maulana Azad Medical College and below

27% in Lady Hardinge Medical College.

15. It was considered whether the interpretation by the undersigned of

Section 3 & 5 of the Act as aforesaid being different as found in Tandan

Kumar, the matter should be referred to a Division Bench. However, on

further consideration, I find that judgment in Tandan Kumar was

pronounced immediately after the reservation for OBCs was upheld in

Ashoka Kumar Thakur (supra). The Court then was guided by there being

possibly no time for the Institutions to avail of Section 5. Being fully

conscious, directions for the next academic year 2009-10 were issued.

However, now as aforesaid two academic sessions have already passed. It

was enquired from the counsels for Maulana Azad Medical College & Lady

Hardinge Medical College whether in accordance with the directions in

Tandan Kumar, the applications for increase in intake to accommodate 27%

seats for OBCs have been made; the answer is in the negative. As aforesaid,

Maulana Azad Medical College is pursuing its application only for 5%

increase. The counsel for Maulana Azad Medical College has of course

contended that increase of seats in Medical College is not a simple affair and

a lot of additions to infrastructure have to be made and which Maulana Azad

Medical College for one reason or the other has not been able to do till now.

The controversy now has to be decided in the aforesaid context and which is

much different from the context in which Tandan Kumar was decided. The

question now is that even if any Central Educational Institution is unable to

so increase the seats or has not so increased the seats, whether reservation

for OBCs is to await such increase. It was therefore not felt necessary to

refer the matter to the Division Bench.

16. My reasons for the conclusion reached in para 12 above are as

under:-

(i) The reservation under Section 3(iii) has not been made "subject

to" Section 5. The reservation under Section 3(iii) is to come

into effect immediately on promulgation of the Act and in view

of interim order in Ashoka Kumar Thakur, w.e.f. academic

session 2008-2009.

(ii) Section 5(1) also does not provide that "to effect reservation in

Section 3(iii)", the seats shall be increased. It only obligates the

Institutes to increase the number of seats so that the seats

available for unreserved category after the coming into force of

the Act are not less than those before such reservation.

(iii) While Section 3(iii) is for the benefit of the reserved category,

Section 5 is to prevent prejudice to the unreserved category

from reservation, of which for OBCs was introduced for the

first time by the Act. The two are independent of each other.

(iv) The effect of the non obstante clause at the beginning of

Section 5(1) has been considered. The obligation under Section

5(1) to increase the seats is notwithstanding anything contained

in Section 3(iii) or in any other law.

The Apex Court in Chandavarkar Sita Ratna Rao v. Ashalata

S. Guram (1986) 4 SCC 447 held:

"A clause beginning with the expression "notwithstanding

anything contained in this Act or in some particular provision in

the Act or in some particular Act or in any law for the time

being in force, or in any contract" is more often than not

appended to a section in the beginning with a view to give the

enacting part of the section, in case of conflict, an overriding

effect over the provision of the Act or the contract mentioned in

the non-obstante clause. It is equivalent to saying that inspite of

the provision of the Act or any other Act mentioned in the non-

obstante clause or any contract or document mentioned the

enactment following it will have its full operation or that the

provisions embraced in the non-obstante clause would not be an

impediment for an operation of the enactment".

(v) I have considered whether the effect of the non-obstante clause

is to make the reservation in Section 3 (iii) for OBCs subject to

increase in seats.

(vi) I am unable to hold so for following reasons:

(a) The Legislature in Section 5(2) has provided a mechanism

for seeking exemption from such reservation. If the

reservation in Section 3(iii) were to be dependent on the

increase of seats under Section 5(1), there was no need for

Section 5 (2) inasmuch as without the increase, the

reservation in any case would not have come into force.

(b) If it were to be held that reservation under Section 3(iii) is

dependent on increase in seats and till such seats are

increased OBCs cannot claim reservation, it would render

Section 5(2) otiose and which interpretation thus cannot be

accepted. In the interpretation of statutes the courts always

presume that the legislature inserted every part thereof for a

purpose and the legislative intention is that every part of the

statute should have effect. See J.K. Cotton Spinning and

Weaving Mills Co. Ltd. Vs. State of U.P. (1961) 3 SCR 185.

(c) There is really no conflict between Section 3 (iii) providing

for reservation and Section 5(1) providing for increase in

seats so as to keep the number of seats available for

unreserved category candidates same, irrespective of

reservation for OBCs. The legislature did not foresee any

difficulty in so increasing the number of seats and provided a

mechanism in Section 5(2) for the difficulty if any. The

obligation to increase the seats has been made

"notwithstanding any other law for the time being in force"

and which would include the laws providing for permissions

from various Regulatory Bodies viz MCI, AICTE, NCTE,

UGC etc. Section 5(1) however requires the Educational

Institutions to increase the seats with prior approval of

"appropriate authority" which has been defined in Section

2(c) as meaning the Regulatory Bodies aforesaid. Thus not

only the Educational Institutions required to increase seats

but the Regulatory Bodies aforesaid are also obliged to grant

approvals. Thus, as far as the legislature was concerned, there

was no possibility of increase in seats not happening, except

in cases falling under Section 5(2) and for which provision is

made therein.

(d) The Act was promulgated to provide reservation inter alia

for OBCs and the matter of increase in strength to maintain

the number of seats available for the General Category as

before is incidental thereto. The failure to implement the

incidental part of the Statute cannot be permitted to override

and defeat the object of the Statute. The object of the statute

is not to increase the seats or to provide reservation for

General (Unreserved) category. The provisions of one section

of a statute cannot be used to defeat those of another. The

construction/interpretation which reduces Section 3(iii) to a

useless lumber or a dead letter, cannot be adopted. The

Supreme Court (Pasayat J.) in Ashoka Kumar Thakur

(upholding the said Act) also reiterated that a construction

which reduces the statute to a futility has to be avoided - a

statute or any enacting provision therein must be so construed

as to make it effective and operative. The interpretation of

statute by court should be to secure its objective unless clear

direction makes that end unattainable. This Court will have to

reject the interpretation which will defeat the plain intention

of the legislature, even though there may be some

inexactitude in the language used.

(e) To borrow from the speech made nearly 47 years ago, of

Martin Luther King Jr., the cheque of reservation of 27%

issued by the legislature to the OBC's in accordance with the

Constitution of the country cannot be made to bounce; when

the architects of our Republic wrote the magnificent words of

the Constitution, they were signing a promissory note to

which every Indian was to fall heir. This note was a promise

for advancement of socially and educationally backward

classes of citizens. India cannot be made to default on this

promissory note in so far as its socially and educationally

backward citizens are concerned. The sacred obligation of

advancement of such classes cannot be allowed to be

dishonoured. The cheque of reservation given to these classes

by enacting the CEI Act cannot be permitted to be called a

bad cheque, a cheque which has come back marked

"insufficient funds" or "no increase in seats". The socially

and educationally backward classes in need of advancement

who come to encash the cheque of reservation cannot be

returned empty handed - they cannot be told that the great

vaults of opportunity of this nation are bankrupt - that the

country's Educational Institutions to whom such reservation

is confined are unable to enhance their strength for

infrastructure or financial reasons.

(vii) However that still leaves the question as to why the non-

obstante clause was added to Section 5(1) if not to make it

override Section 3(iii). The answer is in, what number 27% is to

represent - whether 27% of the increased seats or 27% of the

permitted strength as on the date of enforcement of the Act. The

effect of the non-obstante clause is to first reserve 27% of

existing permitted strength for OBCs and to then add to the

permitted strength, to make up for the seats reserved under

Section 3(i) to (iii). The non-obstante clause refers only to

Section 3(iii) and not to Section 3(i) and (ii) because the

reservation for SC/ST was in force since prior to coming into

force of the Act.

17. Since the reason given for not increasing the seats as required under

Section 5(1) was inability to increase the infrastructure, it was enquired

whether exemption/extension of time under Section 5(2) has been sought.

The mechanism for exemption from increasing the seats under Section 5(1)

is precise. The Institution desirous of said exemption is required to make a

representation to the Central Government and the Central Government if

satisfied of the inability of the Institution to immediately increase the

number of seats is required to issue a notification in this regard permitting

the Institution to effect the increase in seats over a maximum period of three

years. What is required to be done in a particular manner cannot be done in

any other manner. Thus any Institution which felt itself unable to

immediately increase the seat was required to first satisfy the Central

Government in this regard and the Central Government on such satisfaction

was required to issue a notification. On enquiry, it was informed that neither

Maulana Azad Medical College nor Lady Hardinge Medical College had

made any representation nor any notification qua them has been issued.

Thus, Section 5 (2) cannot be said to come into play and neither Maulana

Azad Medical College nor Lady Hardinge Medical College can be said to

have been exempted from increasing the seats under Section 5(1).

18. It has come to my notice that the Cabinet has cleared the Bill to

amend the CEI Act, inter alia to extend the time of maximum three years

under Section 5(2) by another three years. However even if it were to

become law, unless the procedure aforesaid is followed and the exemption

granted, the obligation to reserve 27% seats remains. The only way an

Institution is permitted exemption from reservation under Section 3(iii) is by

following the procedure under Section 5(2) and not by merely contending

that it could not increase the seats.

19. I am conscious that Section 5(1) was intended to strike a balance

between the rights of OBCs and those in unreserved category. I am further

conscious that the view taken by me hereinabove will prejudice the students

in the unreserved category in the event of Educational Institutions

continuing to flout the requirements of Sections 5 & 6 of the CEI Act.

However I have rested my decision on the belief that there is a sense of

urgency today. If the choice has to be between an OBC and an Unreserved

category student, now is the time to make real the promise of equality which

as it is, took over fifty years to take legal shape. Moreover, the Constitution

Bench in Ashoka Kumar Thakur has given a window of five years or may

be ten for reservation for OBCs, before it is reviewed. Such time cannot be

further shortened. To those in Unreserved category who may be prejudiced,

the only balm I can offer is "Injustice is relatively easy to bear; what stings

is justice" to quote Henry Louis Mencken.

20. I however reiterate the direction already given by this Court in

Tandan Kumar to both MAMC & LHMC to comply with the provisions of

Sections 5 & 6 of the CEI Act.

21. The next question however which arises is of the relief to be granted.

It is informed that if 27% reservation for OBCs in Maulana Azad Medical

College were to be effected, 39 seats would become available and the

petitioner would qualify for admission thereto. However, the fact remains

that none other except the petitioner has approached. The session has

already begun. If at all in view of the interpretation followed above, any

OBC candidate is to be admitted even against the one seat ordered to be kept

vacant under the interim order of this Court, the entitlement thereto is of the

OBC candidate next in queue and not of the petitioner. I, therefore, do not

deem it appropriate to grant any relief to the petitioner. However, with

effect from the next academic year, Maulana Azad Medical College & Lady

Hardinge Medical College are directed to carry out the mandate of the Act

by reserving 27% of the seats for OBC candidates, irrespective of whether

they have complied with Section 5(1) or not.

22. The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 11th AUGUST, 2010/gsr.