Delhi High Court

Miss Harleen K. Bains vs The University Of Delhi & Anr. on 17 August, 2010

Author: Rajiv Sahai Endlaw

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 17th August, 2010.

+                           W.P.(C) No.5015/2010

%

MISS HARLEEN K. BAINS                                          ..... Petitioner
                  Through:                Mr. Maninder Singh, Sr. Advocate,
                                          Mr. Yoginder Handoo, Mr. Ravi
                                          Bhardwaj & Mr. J.P. Karunakaran,
                                          Advocates.

                                      Versus

THE UNIVERSITY OF DELHI & ANR.               ..... Respondents
                 Through: Ms. Manisha with Mr. Amit Bansal,
                          Advocates for R-1.
                          Mr. Navin Chawla & Mr. Vinoba
                          Bhoopathy, Advocates for R-2

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner had applied to the respondent no.1 University of Delhi

for centralized admission in undergraduate courses offered in the various

colleges affiliated to the respondent no.1 University, in the category of 5%

seats reserved for Armed Forces. The petitioner is the daughter of an officer

of the Border Security Force who was disabled on duty and thus eligible for

admission in the said category. The respondent no.1 University on 3rd July,

2010 published the list of candidates for admission in the said category. The

name of the petitioner was shown at serial No.64 in the said list and the

petitioner was recommended for admission for B.A.(Hons.) Economics

course in the respondent no.2 Lady Shri Ram College, New Delhi. The

petitioner along with the provisional admission slip issued by the respondent

no.1 University approached the respondent no.2 College on 5th July, 2010for

admission but was refused admission. The petitioner complained to the

respondent no.1 University which issued a detailed letter dated 6th July, 2010

to the respondent no.2 College advising it to admit the petitioner. Upon

refusal of the respondent no.2 College to still admit the petitioner, the

present writ petition was filed.

2. The writ petition came up before this Court first on 28th July, 2010

when while issuing notice thereof the respondent no.2 College was

restrained from admitting any other student in B.A.(Hons.) Economics

course. Subsequently on 5th August, 2010, the respondent no.2 College was

permitted to make admissions only in the OBC category; else the interim

order was continued. The respondent no.1 University as well as the

respondent no.2 College have filed counter affidavits. The respondent no.1

University has supported the case of the petitioner. The petitioner has filed

rejoinder to the counter affidavit of the respondent no.2 College. The

counsels for the parties have been heard.

3. The respondent no.2 College has opposed the petition by contending-

(i). that against the 5% reservation for Armed Forces category, only

three seats were available in the B.A.(Hons.) Economics course

in the College. However the respondent no.1 University

recommended four candidates including the petitioner to the

respondent no.2 College for admission in the said course in the

said category. The marks of the other three candidates being

higher than those of the petitioner, they were admitted in the

said category. It is shown that the marks of the last i.e. third

candidate admitted in the said category are 338 out of 400

whereas the petitioner has only 280 out of 400 marks. It is thus

contended that the respondent no.2 College was justified in

admitting the top three candidates in the said category.

(ii). that the Bulletin of Information for admission to Undergraduate

Courses in the current academic year published by the

respondent no.1 University of Delhi provides for reservation of

5% of the seats in the Armed Forces category and further for

relaxation to the extent of 5% "in the minimum marks in the

aggregate or in the subject, as the case may be" to the

candidates in the said category while determining their

eligibility. It is contended that the cut-off of the last General

category student admitted in B.A.(Hons.) Economics course is

94.75% and for an OBC candidate is 84.75%. Reliance is

placed on the judgment of the Supreme Court in Ashoka

Kumar Thakur Vs. Union of India (2008) 6 SCC 1 and on

P.V. Indiresan Vs. Union of India (2009) 7 SCC 300 to

contend that when the maximum cut-off marks for OBC have to

be 10% below the cut-off marks for the General candidates, on

the same premise, for Armed Forces category candidates also

the eligibility for admission has to be 5% below the cut-off in

the General category. On the basis of cut-off in the General

category being 94.75% it is contended that for petitioner to be

eligible to be admitted in the said category, she ought to have

secured 89.75% while she has secured only 70%. It is thus

contended that the petitioner is not entitled to admission in the

said category.

(iii). It is further contended that the petitioner was offered admission

to other courses in the respondent no.2 College in the same

category but has refused admission. At the time of hearing also

the said offer was made.

4. As far as the last of the aforesaid contention is concerned, the senior

counsel for the petitioner under instructions informed that the petitioner is

not willing for admission offered in other courses in as much as according to

the petitioner she is entitled as of right to admission in B.A.(Hons.)

Economics course.

5. The relevant part of the provision in the Bulletin of Information

published by the respondent no.1 University in this regard is as under:-

"4.2 Reservation for Armed Forces

5% of the total number of seats in each of the course has been reserved for the Children/Widows/Wives of the Officers and Men of the Armed Forces including Para-Military Personnel, killed/disabled in action or those who died/or disabled on duty and the wards of ex-service men personnel and serving personnel who are in receipt of gallantry award and are seeking admission will be required to get their names registered for Science Courses at the Faculty of Science, North Campus, University of Delhi and other than Science Courses at Room No.220, New Administrative Block, North Campus, University of Delhi (between May 28, 2010 to June 11, 2010 from 10.00 A.M. to 1.00 P.M. excluding Sundays).

Relaxation to the extent of 5% in the minimum marks in the aggregate or in the subject, as the case may be, will be given to the candidates of the below mentioned categories while determining their eligibility to the course concerned.

 Widows/Wards of Defence personnel killed in action;

 Wards of serving personnel and Ex-servicemen disabled in action;

 Widows/Wards of Defence personnel who died in peace time with death attributable to military service;

 Wards of Defence personnel disabled in peace time with disability attributable to military service;

 Wards of Ex-servicemen personnel and serving personnel including police personnel who are in receipt of Gallantry Awards;

(Above categories are also applicable for Para Military personnel);"

6. The respondent no.1 University in its counter affidavit has stated that

the admissions in the aforesaid categories are required to be made in order of

preference, with the candidate in a higher category having a preference over

that in the lower category i.e. the highest preference being to widows/wards

of Defence personnel killed in action and the lowest preference being of

wards of ex-servicemen personnel and serving personnel in receipt of

Gallantry Awards. It is stated that of the three students aforesaid admitted by

the respondent no.2 College, one is of a category lower than that to which

the petitioner belongs; while the father of the petitioner was disabled in

peace time with disability attributable to Armed Forces, the father of the

student wrongly admitted by the respondent no.2 College was in receipt of

Gallantry Award. It is contended that the wards of Defence personnel

disabled in peace time with disability attributable to military service are in a

higher category than the wards of ex-servicemen personnel and serving

personnel who are in receipt of Gallantry Awards. It is thus stated that the

petitioner inspite of her lower marks was entitled to be given preference over

the student admitted by the respondent no.2 College.

7. The respondent no.1 University in this regard relies on the Minutes of

the Resolution dated 23rd May, 2007 of the Academic Council resolving to

admit students in the Armed Forces category, as per priority aforesaid and

on the instructions for admission issued by the respondent no.1 University of

Delhi to various colleges as to the procedure to be followed for admission.

In the same also, it is stated that admission in the category reserved for

Armed Forces shall be "in order of preference" of the categories aforesaid.

8. The counsel for the respondent no.2 College besides contending that

the mistake is of the respondent no.1 University in recommending four

candidates in the category of Armed Forces, when only three seats were

available therefor, has also contended that the plea now of the respondent

no.1 University of category wise priority was not mentioned neither in the

Bulletin of Information for admission (supra) published by the respondent

no.1 University nor in the list published of the said category; that the

respondent no.2 College was not aware of the same and thus admitted three

out of the four students recommended, as per their merit. It is contended that

the version now in the counter affidavit of the respondent no.1 University is

an afterthought and all the seats available in the category having been filled

up, the respondent no.2 College cannot be directed to admit the petitioner in

the said course.

9. The senior counsel for the petitioner and the counsel for the

respondent no.1 University have countered the argument aforesaid of the

counsel for the respondent no.2 College by contending that it was so

expressly provided in the instructions for admissions (supra) issued by the

respondent no.1 University to the colleges and was also explained in the

letter dated 6th July, 2010 (supra) of the respondent no.1 University to the

respondent no.2 College and thus the respondent no.2 College was aware of

the category-wise priority and if has wrongly filled up the seats, cannot

deprive the petitioner of her entitlement. The senior counsel for the

petitioner has also referred to the provisional admission slip issued by the

respondent no.1 University to the petitioner and presented by the petitioner

to the respondent no.2 College and on which also the category is mentioned.

10. The senior counsel for the petitioner has countered the second

contention of College of the candidates in Armed forces category being

required to have marks within 5% of last candidate admitted in general

category by relying upon paras 58 to 60 in Dr. Preeti Srivastava

Vs. State of M.P. (1999) 7 SCC 120 and has contended that the reference to

cut-off is with respect to the eligibility and not the marks secured by the last

candidate admitted in the General category. Even otherwise it is contended

that neither the Bulletin of Information of the University of Delhi nor the

Resolution of the Academic Council of the University of Delhi with respect

to reservation in Armed Forces provides in this regard.

11. The counsel for the respondent no.1 University has also opposed the

interpretation aforesaid of the respondent no.2 College.

12. The senior counsel for the petitioner has also contended that the

respondent no.2 College has no independent say in the matter and is to admit

students in the category of Armed Forces, as recommended by the

respondent no.1 University and is bound by the interpretation thereof by the

respondent no.1 University and the present litigation cannot be allowed to be

utilized by the respondent no.2 College for resolving its lis if any in this

regard with the respondent no.1 University. It is contended that the

respondent no.2 College is bound by the version of the respondent no.1

University and once the respondent no.1 University which makes admission

centrally in the said category has held that the petitioner is entitled to be

admitted in the said category, the respondent no.2 College is bound by the

same.

13. I have considered the rival submissions and my conclusions are as

under:-

i. Since the admission in the category of Armed Forces is

centralized and at the instance of the respondent no.1

University, the respondent no.2 College as an affiliate of the

respondent no.1 University is bound by the recommendation of

the respondent no.1 University. The respondent no.1 University

having found the petitioner eligible for admission in the said

category, the respondent no.2 College is bound by the same and

cannot deny admission to the petitioner on its own

interpretation of the clause providing for reservation in the said

category. If the respondent no.2 College has a view different

from that of the respondent no.1 University in this regard, the

respondent no.2 College is to take up the said issue separately

with the respondent no.1 University and the same cannot be

agitated in the present proceedings.

ii. I am satisfied that from the instructions issued by the

respondent no.1 University to the colleges for admissions and

the letter dated 6th July, 2010 issued by the respondent no.1

University to the respondent no.2 College specifically with

reference to the petitioner, the respondent no.2 College was

aware of the petitioner being in a higher category in the

reservation provided for Armed Forces and notwithstanding her

lower marks being entitled to admission before the other

student admitted by the respondent no.2 College in the said

category.

iii. I do not deem it appropriate to decide the contention on the

basis of the judgments in Ashoka Kumar Thakur and P.V.

Indiresan (supra) on the one hand and Dr. Preeti Srivastava

(supra) on the other hand. I am, in any case, seized of the said

subject in another matter on which judgment is reserved.

Independently of the same, I am convinced that in the said

category only 5% relaxation in marks to determine their

"eligibility" was to be given and the same had nothing to do

with the "cut-off" in the General category. Thus if the eligibility

for candidates in General category for admission in B.A.(Hons.)

Economics was say 50%, the eligibility for candidates applying

in the category reserved for Armed Forces would be 45%.

There is no provision for the candidate in the said category

having marks within the range of 5% below the marks of the

candidate last admitted in the General category. In view of the

express provision in the admission documents, the respondent

no.2 College is not entitled to contend otherwise.

14. Though the respondent no.2 College in its counter affidavit has also

given reference to another case where prioritization of category was alleged

to have been not followed but the senior counsel for the petitioner and the

counsel for the respondent no.1 University have explained that the priority

of categorization was followed in that case also. Thus the said argument

does not survive.

15. I therefore conclude that the petitioner was entitled to admission in the

respondent no.2 College in B.A. (Hons.) Economics course in the Armed

Forces category and has wrongly been denied the said admission.

16. That brings me to the question of the relief to be granted, in as much

as it is not in dispute that there are only three seats in the B.A. (Hons.)

Economics course in the respondent no.2 College in the Armed Forces

category and all three of which have already been filled up. Realizing

the same, in the order dated 5th August, 2010, option was given to the

petitioner to implead the candidate who according to the petitioner have

been wrongly admitted in her place in as much as it was felt that without

hearing the said candidate no order could be made for admission of the

petitioner in her place. The petitioner has not taken any steps for impleading

the said candidate. The counsel for the respondent no.2 College has

contended that since all the seats in the B.A. (Hons.) Economics course have

been filled up, the petitioner cannot be admitted; that if more students than

as provided are admitted it leads to problems of infrastructure; the College is

not equipped to impart education to even one more student than that for

which provision has been made.

17. The senior counsel for the petitioner has in this regard relied on:-

a. Chandigarh Administration Vs. Manpreet Singh (1992) 1

SCC 380;

b. Nitasha Paul Vs. Maharishi Dayanand University, Rohtak

(1996) 2 SCC 103;

c. Dr. Rekha Saxena Vs. State of M.P. MANU/MP/0041/1985;

d. Vineeta Srivastava Vs. Jamia Millia Islamia 1998 (44) DRJ

149;

         e.        Vikas Vs. State of Punjab MANU/PH/0396/2001;



         f.        G. Panneer Pandi Vs. The VC, Anna University, Chennai

                   MANU/TN/0738/2002;



         g.        Ms. Reena Maan Vs. The State (NCT of Delhi) 136(2007)

                   DLT 548 &



         h.        Sudeep     Panigrahi   Vs.   Chairman,      Joint    Entrance

                   Examination MANU/OR/0365/2009

to contend that the courts in appropriate cases have directed admission by

creation of an additional seat and over and above the prescribed number of

seats.

18. In the present case, the petitioner having been found entitled to

admission, cannot be denied admission. At the same time, the admission

procedure having now nearly come to an end, the student who has been

wrongly admitted by the respondent no.2 College instead of the petitioner

also cannot be displaced in as much as it would now not be possible for her

to seek admission elsewhere or in a comparable college or course. The

respondent no.2 College having filled up its seats in contravention of the

direction of the respondent no.1 University is itself to blame and cannot now

oppose the admission of the petitioner on the ground that all the seats are

filled up.

19. The petition is therefore allowed. The respondent no.2 College is

directed to admit the petitioner into 1st Year B.A.(Hons.) Economics course