Tanvi Yadav vs University Of Delhi & Ors.
2010 Latest Caselaw 5730 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 16th December, 2010.

+                                   W.P.(C) No.6776/2010
%

TANVI YADAV                                                        ..... PETITIONER
                                    Through:      Mr. Naushad Ahmed Khan with Mr.
                                                  V. Elanchezhiyan & Mr. Rajesh
                                                  Kumar, Advocates
                                               Versus
UNIVERSITY OF DELHI & ORS.               ..... RESPONDENTS
                 Through:  Mr. Mohinder J.S. Rupal & Ms.
                           Sonam Gupta, Advocates

                                                AND
+                                   W.P.(C) No.6895/2010
%
MEENA                                                            ..... PETITIONER
                                    Through:      Mr. Naushad Ahmed Khan with Mr.
                                                  V. Elanchezhiyan & Mr. Rajesh
                                                  Kumar, Advocates
                          Versus
UNIVERSITY OF DELHI & ORS.                  ..... RESPONDENTS
                 Through:    Mr. Mohinder J.S. Rupal & Ms. Sonam
                             Gupta, Advocates for R-1 & R-3.
                             Mr. Neeraj Chaudhary, CGSC with Mr.
                             Akshay Chandra & Mr. Mohit Auluck,
                             Advocates for R-4/OUI.
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?




W.P.(C) Nos.6776/2010 & 6895/2010                                        Page 1 of 8
 RAJIV SAHAI ENDLAW, J.

1. The petitioner in both the petitions claim to be belonging to OBC

Category. They applied for admission in University of Delhi in LL.B &

M.Sc. (Chemistry) course respectively in the academic year 2010-11. They

were however not admitted as per the Admission Policy of the respondent

University qua OBCs. The same Admission Policy, as is being followed by

the respondent University qua OBCs, was also being followed by the

Jawaharlal Nehru University (JNU). This Court vide judgment dated 7th

September, 2010 in WP(C) No.4857/2007 titled Apurva Vs. Union of India

held the said Policy to be bad. The petitioners, contending that they have

been denied admission for the reason of the respondent University following

the policy not approved of by this Court in Apurva (supra), and that else

they would have been entitled to admission, have filed the present petitions

for scrapping the entire admission procedure followed by the University and

for directing afresh admissions in consonance with what has been approved

by this Court in Apurva.

2. The petitions came up before this Court on 5th October, 2010 and 8th

October, 2010 respectively. On those very dates, it was observed that even

if finding the procedure followed by the respondent University to be flawed,

since admission of students more than the prescribed capacity tends to put

unnecessary stress on infrastructure in the College / Institution and further

since the academic session had already begun, no relief could be granted to

the petitioners. The counsel for the petitioners however contended that some

seats were still lying vacant in each of the courses and in the circumstances,

notice of the petitions was issued and the counsel for the respondent

University asked to take instructions.

3. The respondent University has filed a short affidavit in each of the

cases. The counsel for the petitioners did not want to file any rejoinder. The

counsels have been heard.

4. The University of Delhi was not a party to the judgment in Apurva. It

thus has a right to argue the matter afresh. The counsel for the University

has as such been heard in opposition to the view taken in Apurva

inasmuch as if Apurva were to be not good law, the petitioners would have

no claim.

5. The counsel for the respondent University has contended that the

Constitution Bench of the Supreme Court in Ashoka Kumar Thakur Vs.

Union of India (2008) 6 SCC 1 had left it to the Government to lay down

the procedure for admission to the seats reserved for OBCs under the Central

Educational Institutions (Reservation in Admission) Act, 2006. He contends

that the Government in pursuance to the same brought out an Office

Memorandum dated 17th October, 2008 and the University has abided by the

same. He has in this regard drawn attention to paras 535, 629 & 645 of the

judgment in Ashoka Kumar Thakur (supra). He has further contended that

the view in the judgment of Dalveer Bhandari J. in Ashoka Kumar Thakur

was subsequently ratified by all the other Hon‟ble Judges of the Constitution

Bench, in P.V. Indiresan Vs. Union of India (2009) 7 SCC 300 and thus is

now the view of the Constitution Bench. It is further the contention that the

distinction between qualifying marks and cut off was noted in para 408 of

the judgment in Indra Sawhney Vs. Union of India 1992 Supp (3) SCC 217

and of which the Constitution Bench in Ashoka Kumar Thakur was fully

seized. It is thus argued that the use of expression "cut off" in Ashoka

Kumar Thakur is distinct from qualifying marks as in the context of para

408 of the judgment in Indra Sawhney (supra).

6. Per contra, the counsel for the petitioners has contended that the 97 th

Amendment to the Constitution was not there at the time of judgment in

Indra Sawhney and thus no reliance thereon can be placed. He has also

referred to para 16 of Harminder Kaur v. UOI JT 2009 (13) SC 550.

7. I have considered the contentions aforesaid of the counsel for the

respondent University. The same do not persuade me to take a view

different from that already taken in Apurva. In Apurva, it has been held that

the challenge to the reservation for OBCs in Ashoka Kumar Thakur was

primarily on the premise of the reservation on the basis of caste / class being

antithesis to the goal of the Constitution of a casteless / classless society.

The said challenge was negatived by the Supreme Court. However, since to

justify the challenge it was also urged that such large scale reservation may

lead to lowering the standard of excellence of the educational Institutions

and the country, the observations relied on by the Government and the

respondent University using the expression "cut off" came to be made. It

was further held that none of the opinions in Ashoka Kumar Thakur upheld

the reservation for OBCs for the reason of making the same subject to the

OBCs being within the bandwidth of 10% of the last candidate admitted in

the Unreserved Category. It was thus held that the observations in the

opinion of Arijit Pasayat, J. & Dalveer Bhandari J. are in the form of

recommendation to the Government. More importantly, it was held in

Apurva that if only such of the OBC candidates who secure marks within the

10% bandwidth of the cut off in the Unserved Category are held entitled to

admission, the same would lead to making the Reserved Category candidates

compete with the Unreserved Category candidates and which is not

permissible. It was further held that there is nothing in the Act to the said

effect and if the reservation is implemented as was being done by the JNU,

that would defeat the very purpose of constitutional amendment and the Act.

8. I am afraid none of the aforesaid reasoning has been dented by the

counsel for the respondent University.

9. I am therefore not inclined to take a view different from that in

Apurva. The respondent University though not a party to Apurva would

nevertheless be bound by what has been held therein.

10. The counsel for the respondent University has also argued that the

petitioners were aware of the admission criteria since the publication of the

prospectus and did not challenge the same and were satisfied with the same;

they also accepted rejection of their admissions on the basis of the said

criteria; that the present petitions have been filed as an afterthought after

about a month of the judgment in Apurva.

11. The respondent University in the affidavit in each of the petitions has

further stated that there are no seats available in either of the courses; that

the unfilled seats of the OBC Category as per judgment in Ashoka Kumar

Thakur devolved on the Unreserved Category and have been filled up; that

the academic session has begun and tests / practical had already held by the

time the petitions were filed and the petitioners are thus not entitled to the

relief claimed.

12. The counsel for the petitioners has in opposition argued that the

respondent University being at fault cannot take advantage of its own wrong.

It is further contended that though the academic session has begun but owing

to the intervening Commonwealth Games not much progress has been made

and the petitioners upon being admitted would be able to catch up. It is

contended that since the respondent University is in the wrong it can always

hold either special classes or admit the petitioners as supernumeraries. It is

contended that instances of admission to Medical Colleges in midterm are in

abundance. It is further urged that there is no sanctity to the maximum

strength of seats provided in each course inasmuch as all those of the

previous academic session who fail in any case add to a new session.

Reference is made to para 3 of Medical Council of India Vs. Manas Ranjan

JT 2009 (13) SC 588. Relying on the Division Bench judgment dated 10th

December, 2009 of this Court in LPA No.622/2009 titled Dr. Manish

Patnecha Vs. Chairperson Counseling Committee AIIMS, it is contended

that even if the petitioners are held to be not entitled to admission in this

year, a seat for them should be reserved in the next year. Reference is also

made to Avinash Singh Bagri Vs. Registrar IIT Delhi (2009) 8 SCC 220

where additional coaching for SC/ST candidates was directed.

13. None of the aforesaid arguments prevail with me. The fact remains

that the petitioners were satisfied with the Admission Policy / Procedure of

the University and have taken a chance by filing the present petitions owing

to the judgment of this Bench in Apurva. I may notice that the counsel for

the University on the very first day when the petitions had come up had also

contended that the notice has been issued in the Special Leave Petition

preferred by Mr. P.V. Indiresan in the Supreme Court seeking clarification

on the matter. However, on that date, I was persuaded by the pleas of the

petitioner of their being vacant seats. What has transpired now is that there

are no vacant seats. The question involved is not of the petitioners alone but

a general question relating to admissions of OBCs. The decision of the said

question would not entitle the petitioners alone to the relief but would entitle

the other OBC candidates also who had applied for admission and who were

denied admission to the relief. It is best left for the matter to work itself out

in the next academic year rather than give relief selectively to those who

approach the Court.

The petitions are therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

16th December, 2010 „gsr‟..