Dr. Muveen Kumar & Ors. vs Guru Gobind Singh Indrprastha ...
2010 Latest Caselaw 4033 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 31th August, 2010.

+                                     W.P.(C) No.4282/2010
%

DR. ASHOK KUMAR                                                   ..... PETITIONER
                                      Through: Mr. Sudhir Nandrajog, Sr. Advocate
                                               with Mr. Mohit Chaudhary, Mr. Ramesh
                                               Gopinathan, Mr. A. Das & Mr. Rituraj
                                               Chaudhary, Advocates

                                              Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS.                         ..... RESPONDENTS
                  Through: Mr.     Mukul     Talwar    &     Mr.
                           Sradhananda Mahapatra, Advocates
                           for R-1.
                           Mr. Rakesh Mahajan, Advocate with
                           Mr. Gautam Anand & Mr. Pramod
                           Kumar     Tyagi,      Advocates    for
                           respondents 5,6,7,9,10,12,14 & 15.
                           Mr. Arvind Chaudhar, Advocate for
                           R-13.
                           Mr. Amit Kumar, Advocate for R-19.

                                              AND

+                                     W.P.(C) 4283/2010

DR. MUVEEN KUMAR & ORS.                  ..... PETITIONERS
                Through: Mr. Sudhir Nandrajog, Sr. Advocate
                         with Mr. Mohit Chaudhary, Mr. Ramesh
                         Gopinathan, Mr. A. Das & Mr. Rituraj
                         Chaudhary, Advocates

                                              Versus

GURU GOBIND SINGH INDRPRASTHA
UNIVERSITY & ORS.                        ..... RESPONDENTS
                  Through: Mr.     Mukul    Talwar   &  Mr.
                           Sradhananda Mahapatra, Advocates
                           for R-1.
W.P.(C)Nos.4282/2010,4283/2010 & 4425/2010                               Page 1 of 13
                                                 Mr. Abhishek Goyal, Advocate for
                                                Mr. B.V. Niren, CGSC & Mr. G.D.
                                                Parashar, Mr. Neeraj Chaudhari,
                                                CGSC, Mr. Khalid Arshad, Advocates
                                                for R-3.
                                                Mr. Ashok Mathur & Mr. Prem
                                                Prakash, Advocates for R-4.
                                                Mr. Gautam Anand & Mr. Pramod
                                                Kumar     Tyagi,     Advocates     for
                                                respondents 5,6,7,9,10,12,14 & 15.
                                                Mr. AP. Singh, Advocate for R-8 &
                                                11.
                                                Mr. G.D. Chotmurada & Mohd.
                                                Aslam, Advocates for R-16&17.

                                              AND
+                                     W.P.(C) 4425/2010

DR. POOJAN AGARWAL                                             ..... PETITIONER
                Through:                        Mr. Sudhir Nandrajog, Sr. Advocate
                                                with Mr. Mohit Chaudhary, Mr.
                                                Ramesh Gopinathan, Mr. A. Das &
                                                Mr. Rituraj Chaudhary, Advocates

                                             Versus

GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS                         ..... RESPONDENTS
                 Through: Mr.      Mukul       Talwar   &    Mr.
                           Sradhananda Mahapatra, Advocates
                           for R-1.
                           Mr. Neeraj Chaudhari, CGSC, Mr.
                           Khalid Arshad, & Mr. G.D. Parashar,
                           Advocates for R-3.
                           Mr. Gautam Anand & Mr. Pramod
                           Kumar     Tyagi,       Advocates   for
                           respondents 5,6,7,9,10,12,14 & 15.
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

W.P.(C)Nos.4282/2010,4283/2010 & 4425/2010                               Page 2 of 13
 3.       Whether the judgment should be reported            Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The three petitions relate to admissions to the Post Graduate Medical

Degree/Diploma Programme for the academic session 2010-11 of the

respondent no.1 Guru Gobind Singh Indraprastha University and are being

listed and taken up together for consideration. The counsels made their

submissions with respect to the facts of WP(C) No.4283/2010.

2. The petitioners contend that the University in the matter of admissions

has incorrectly applied the provisions for reservation to SC/ST/OBC

category, by wrongly extending the reservation to students who enjoy

SC/ST/OBC status in other States like Bihar, Uttar Pradesh, Assam etc. but

are not recognized as SC/ST/OBC in Delhi. The action of the University is

stated to be in contravention of the law laid down in (i) MCD Vs. Veena

(2001) 6 SCC 571 (ii) Subhash Chandra Vs. Delhi Subordinate Services

Selection Board (2009) 15 SCC 458 & (ii) Manish Tokas Vs. UOI, WP(C)

No.13304/2004 decided on 1st March, 2007. The petitioners claim that if

admissions to SC/ST/OBC category of students not holding such status in

Delhi were to be not made or are to be struck down, the seats reserved for

SC/ST/OBC candidates would fall vacant and in accordance with judgment

of Supreme Court in Ashok Kumar Thakur Vs. Union of India (2008) 6

SCC 1 be available for admission of General category to which the

petitioners belong. The candidates who according to the petitioners have

been so wrongly admitted have been impleaded as respondents. The case of

the petitioners is that the candidates so wrongly admitted had not produced

any certificate from the authorities at Delhi of their belonging to the

Reserved category in Delhi and were thus not entitled to admission in the

Reserved categories.

3. The relevant provisions of the Admission Brochure issued by the

University and to which attention has been invited during the hearing are as

under:-

2. Common Entrance Test (CET) for only 50% seats as indicated in above Tables against State Quota will be conducted by Guru Gobind Singh Indrprastha University for admission to Post Graduate Medical Degree / Diploma courses. For this test, only Medical graduates of Guru Gobind Singh Indraprastha University are eligible.

3. All admissions against the seats of State Quota to Post Graduate Medical Degree / Diploma Courses will be made on the basis of merit of Common Entrance Test (Test Code:

26).

6.2.4 Candidates who are already admitted to any Post Graduate Medical Degree / Diploma Course in any University / Institution as on the date of cousnelling will not be eligible for admission. Candidate will be required to give an undertaking in the proforma as per Annexure-I.

6.2.6 In case of any dispute, the decision of the Post Graduate Admission Committee shall be final. However, an appeal could be made to the Vice-Chancellor, Guru Gobind Singh Indraprastha University against such a decision.

7. RESERVATION AND ALLOCATION OF SEATS

7.1 Out of total seats as already indicated in para 4 above, 50% seats are reserved for All India Quota, to be filled up on the basis of All India Entrance Test conducted by All

India Institute of Medical Sciences, on behalf of DGHS, Government of India.

7.2 The other 50% seats will be reserved for MBBS graduates of Guru Gobind Singh Indraprastha University. Reservation will be applicable in these seats as per policy of Government of India as applicable from time to time for Schedule Caste (SC), Schedule Tribe (SC) and OBC candidates. For reservation to Physically Challenged (PC) candidates, guidelines of Medical Council of India will be applicable.

Final decision regarding reservation policy will be taken by the Government (for the year 2010-11) and in accordance with the same the counseling will be conducted.

7.2.1 Guidelines for Schedule Caste and Schedule Tribes Seats

In case any seats reserved for the candidates belonging to SC/ST category remain unfilled due to non-availability of the eligible candidates under the said category, then the seats would be offered to the other category, i.e., seats of SC to ST and vice-versa as the case may be. In case sufficient number of eligible candidates of SC & ST is not available, the seats thus remaining vacant will be treated as unreserved. A Caste Certificate in the name of the applicant from a competent authority will have to be submitted at the time of Counselling.

A list of approved authorities to issue the SC and ST Certificates are as under:-

(i) District Magistrate, Additional District Magistrate, Deputy Commissioner, Collector, Additional Deputy Commissioner, Deputy Collector, 1st Class Stipendiary Magistrate (not below the rank of 1 st Class Stipendiary Magistrate), City Magistrate, Sub- Divisional Magistrate, Taluka Magistrate, Executive Magistrate and Extra Assistant Commissioner.

(ii) Chief Presidency Magistrate, Additional Chief Presidency Magistrate or Presidency Magistrate.

(iii) Revenue Officer not below the rank of Tehsildar.

(iv) Sub-Divisional Officer of the area where the candidate and / or his / her family normally resides.

(v) Administrator, Secretary to the Administrator or the Development Officer (Lakshdweep & Minicoy Islands).

7.2.2 Twenty Seven (27%) percent seats shall be reserved for the candidate belonging to OBC category as per the guidelines of Govt. of India. OBC certificate in the name of candidate from a competent Authority as per central list OBCs will have to be submitted at the time of counselling.

18. DOCUMENTS REQUIRED FOR COUNSELLING / ADMISSION

(vi) Schedule Caste/ Schedule Tribe / OBC certificate, if applicable; The reservation certificate should be issued from the respective State / region in which the reservation is claimed e.g. In case any candidate claims for the seat reserved for DSC category than he has to bring SC certificate issued by Govt. of NCT of Delhi.

4. Notice, first of WP(C) No.4282/2010 was issued owing to the law as

laid down in the following paragraph in the judgment in Veena (supra):-

"Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they been specified may be totally different. So the degree of disadvantages of various elements which constitute

the date for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."

Notice in other writ petitions was issued on the basis of notice having

been issued in W.P.(C) No.4282/2010.

5. Though the counsels have addressed elaborate arguments but I find

the aforesaid question to be not arising in the present case. A perusal of the

terms aforesaid of admission would disclose that while 50% of the seats

were to be filled up on the basis of the All India Quota, the admissions

whereto were through a separate process (and with which we are not

concerned), the other 50% seats with which this writ petition is concerned

are described inter alia as the "State Quota" seats. The petitioners base

their case on the seats being "State Quota" and claim that the State Quota

can be understood as quota for citizens of Delhi only. On this basis it is

urged that candidates seeking admission in reserved category have to belong

to reserved categories as in Delhi and are not entitled to benefit of

reservation if of reserved category in places other than Delhi.

6. Though the petitioners contend as aforesaid, but have nowhere in the

petition pleaded that they are domiciled in Delhi. The contention of the

petitioners being that the seats are for Delhites, it has to hold good for both,

Unreserved as well as reserved categories. It cannot be that the Reserved

seats are for Delhites and Unreserved for other than Delhites also. It was as

such asked from the counsel for the petitioners whether the petitioners claim

to be having a domicile of Delhi so as to be admitted in the State Quota

seats. The answer is in the negative.

7. In my view the challenge of the petitioners in this petition is liable to

be dismissed on this ground alone. The petitioners cannot apply different

standards to themselves and to others whose admission they are challenging.

8. However, since arguments were addressed on other aspects also, it is

deemed expedient to deal with the same also for the sake of finality.

9. The counsel for the University has contended that the 50% seats

aforesaid are not State Quota seats to be understood as, for which only

domicile/residents of Delhi only can apply. Reference is made to clauses of

the admission brochure providing that the said seats are for medical

graduates of the respondent University. It is urged that such Institutional

reservation has been recognized by the Supreme Court. The University thus

contends that the post graduate seats subject matter of disputes were to be

filled up by medical graduates of the respondent University, whether they be

residents/domicile of Delhi or not. It is explained that the expression "State

Quota" was used only because the medical college of the respondent

University is in Delhi. It is stated that the petitioners as well as those whose

admission is challenged are all medical graduates of the respondent

University and have earlier been litigating together against the University. It

is thus contended that the candidates belonging to Reserved category are

only required to be medical graduates of the respondent University and

belonging to Reserved category, not necessarily in the list of Reserved

categories in Delhi. It is also pointed out that though the candidates whose

admission is challenged, at the time of admission had not produced

certificate issued by Authority in Delhi of belonging to Reserved category in

Delhi, have subsequently produced documents issued by Authority in Delhi

confirming that the caste/class to which they belong is included in the

Reserved class/caste in Delhi also. It is further clarified that all the

petitioners also have secured admission to Post Graduate Degree/Diploma

programmes and the fight in the petitions is for better stream/course.

10. Mr. Ashok Mathur, Advocate has contended that both the Colleges /

Institutes to which admission is under consideration are Central Educational

Institutions within the meaning of the Central Educational Institutions

(Reservation In Admission) Act, 2006. Attention in this regard is invited to

the Admission Brochure aforesaid where both Institutions i.e. (i) Vardhman

Mahavir Medical College & Safdarjang Hospital & (ii) Dr. Ram Manohar

Lohia Hospital & PGIMER are described as having been established and

being operated under the Ministry of Health, Government of India. It is

urged that they are not Institutes / Colleges of the Delhi State for admission

in the Reserved category thereof being required to be confined to the

SC/ST/OBC of Delhi only. Para 29 of the judgment in Subhash Chandra

(supra) relied on by the petitioners is cited where it is observed that

reservation in Union Territory-run institutions must be confined to members

of SC/ST as notified for Union Territories but reservation in respect of All

India Institutions is for SC/ST/OBC in general irrespective of the State for

which they are notified.

11. Mr. Rakesh Mahajan, Advocate has referred to Section 2(g) of the Act

aforesaid and has contended that the policy of the Government of India

referred to in Clause 7.2 of the Admission Brochure aforesaid is as contained

in the Act. He also contends that since the brochure provides for the final

decision regarding reservation policy being of the Government of India, the

petitioners if aggrieved ought to have approached the Government first.

Relying on Clause 7.2.1 of the Admission Brochure, it is pointed out that the

authorities whose certificate of belonging to the Reserved category are

prescribed include the Sub Divisional Officer of the area where the

candidate or his / her family normally reside, indicating that the certificate

need not have been of the authority from Delhi only. It is contended that the

Clause 7.2.1 overrules the Clause 18.6 of the Admission Brochure.

12. Mr. Arvind Chaudhary, Advocate points out that very few of the

SC/ST/OBC seats have been filled up; the remaining seats in the Reserved

category have already gone to General / Unreserved category.

13. Mr. A.P. Singh, Advocate has also handed over a report to show that

both the Institutions aforesaid are Central Government Institutions. His

contention also is that in the legal notice issued by the petitioners prior to

institution of the writ petition no grievance was made with respect to the

admission of respondents 8 & 11. It is contended that the petitioners cannot

expand the dispute in the writ petition so as to challenge the admission of

respondents 8 & 11 also. Relying on Clause 6.2.6 of the Admission

Brochure, it is contended that the writ petition is not maintainable for the

reason of alternate remedy provided therein being available.

14. The counsel for Medical Council of India (MCI) has contended that

the last date for admission / migration from one course to another is over and

now no relief can be granted to the petitioners.

15. On a conjoint reading of the Clauses set out hereinabove, besides the

aspect of domicile dealt with hereinabove, I am satisfied that the candidates

admitted in the Reserved category were not required to produce certificates

of their belonging to the Reserved category from the authorities situated in

Delhi and were entitled to admission on production of certificate of their

belonging to the SC/ST/OBC category of the area where they / their family

normally reside. I am also satisfied that the admission was confined to

Medical Graduates of the respondent University irrespective of their

domicile and thus the students falling in the Reserved category outside Delhi

were not required to be in the Reserved category in the City of Delhi also. It

is for this reason that the judgments on the basis whereof the petition was

filed have no application to the present case.

16. Besides the point aforesaid, the only other point urged is of the

respondents 16 and 17 being not entitled to admission for the reason of

Clause 6.2.4 of the Admission Brochure i.e. being already admitted to

another Post Graduate Medical Degree / Diploma Course in any University /

Institution as on the date of counselling. The respondent no.16 in his counter

affidavit had stated that he is a Medical Graduate of the GGSIPU of the year

2006; that he was admitted in the two year Diploma course in the University

in May, 2008; that the said course was completed in April, 2010 upon final

examination thereof being held; that he appeared in the Common Entrance

Test held on 26th May, 2010 by the University pursuant to the Admission

Brochure aforesaid and was declared successful for admission into the

degree course and was so admitted on 31st May, 2010. His contention is that

merely because his result of the course completed in April, 2010 had not

been declared till the counselling, would not disentitle him from admission

to the Degree Course. The position with respect to the respondent no.17 is

the same. The counsels for the respondents 16 & 17 thus contended that the

bar of Clause 6.2.4 would not apply qua them.

17. The counsel for the University has also contended that Clause 6.2.4 is

intended to prevent a student from holding up two seats and is not attracted

when the course stands completed even if the result thereof may not have

been declared.

18. Upon consideration of the matter, I am of the opinion that Clause

6.2.4 does not prevent a student who may have completed his diploma /

degree course in the same academic year from being admitted. Merely

because the result of his examination held had not been declared would not

mean that he at the time of counselling for admission already stood admitted

in some other course; the other course stood concluded as on that date. Such

a student as per his merit is entitled to admission.

19. There is no merit in the petition. The same is dismissed. However,

the petitioners being students, I refrain from imposing any costs.

RAJIV SAHAI ENDLAW (JUDGE) 31st August, 2010 gsr