Rekha vs University Of Delhi & Ors.
2010 Latest Caselaw 5448 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 30th November, 2010.

+                           W.P.(C) No.7006/2010
%

REKHA                                                   ..... PETITIONER
                            Through:      Mr. Naushad Ahmad with Mr. V.
                                          Elanchezhiyan, Mr. Rajesh Kumar
                                          Verma & Mr. javed Hussain,
                                          Advocates

                                       Versus

UNIVERSITY OF DELHI & ORS.               ..... RESPONDENTS
                 Through:  Mr. Mohinder J.S. Rupal, Advocate

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 writ petition was filed seeking direction to the respondent

University to admit the petitioner, an OBC candidate, to the MA (English)

Course. Direction was also sought against the respondent University to fill

up the seats reserved for OBC category in accordance with the Central

Educational Institutions (Reservation in Admission) Act, 2006. The decision

of the M.A. Committee of the respondent No.3 Department of Education

converting the seats reserved for OBC category into General category was

also sought to be quashed; consequently, the admission of any General

candidate against the OBC category seat was also sought to be cancelled.

2. The writ petition came up before this Bench first on 20 th October,

2010. The petitioner had impleaded the Non-Collegiate Women‟s Education

Board (NCWEB) as the respondent No.4. The counsel for the respondent

University appearing on advance notice on 20th October, 2010 sought time to

find out whether NCWEB was a part of the respondent University or not.

Since it was informed that the classes for MA (English) course had

commenced on 19th July, 2010, the matter was adjourned to 27th October,

2010. The MA (English) Course is offered by the respondent University at

its North / South Campus and also at NCWEB aforesaid.

3. The counsel for the respondent University on 27th October, 2010

informed that NCWEB was a part of the University. He also informed that

if the judgment dated 7th September, 2010 of this court in WP(C)

No.4857/2010 titled Apurva Vs. Union of India were to be followed, the

petitioner may have qualified for admission in OBC category in the North /

South Campus but he had not taken instructions on the said aspect. The

counsel for the petitioner expressing urgency, confined the relief for

admission in NCWEB only. As such the counsels were heard on the limited

aspect of entitlement of the petitioner to admission in NCWEB and vide

order of the same day, the petition was allowed and the respondent

University directed to admit the petitioner to MA (English) course in the

NCWEB within one week.

4. The respondent University preferred intra court appeal being LPA

No.800/2010. The said appeal was allowed with the consent of the

petitioner and the order dated 27th October, 2010 allowing the writ petition

set aside and the matter remitted to this Bench for afresh adjudication with

liberty to the respondent University to file counter affidavit.

5. The matter thereafter came before this Bench on 22nd November, 2010

when further time was granted to the respondent University to file the

counter affidavit. The counter affidavit has been handed over in the Court

today by the counsel for the respondent University and the counsel for the

petitioner states that no rejoinder is required. The counsels have been heard.

6. The respondent University in its counter affidavit has stated that the

NCWEB follows a different procedure for admission and which the

petitioner had not followed. It is pleaded that for admission in NCWEB, the

candidates besides filling up the form for admission in MA (English) course

are required to register separately with the NCWEB and which the petitioner

has not done. It is yet further pleaded that for admission in NCWEB the

mandatory requirement is of the candidate being a resident of Delhi. It is

contended that the petitioner is not a resident of Delhi and is a resident of

Bahadurgarh (which is stated to not falling even in the National Capital

Territory Region). It is thus contended that the petitioner cannot be admitted

to NCWEB. The counsel for the respondent University has drawn attention

to the Bulletin of Information for Admission to Post Graduate Courses for

the Year 2010-2011 which in Clause 7 thereof provides for enrolment in

NCWEB. He has also handed over in the Court the NCWEB‟s Handbook

for Information for admission to post-graduate course 2010-2011 of

NCWEB containing a separate form for admission to NCWEB and requiring

a certificate to be furnished by the candidate residing in the National Capital

Territory of Delhi. He has also drawn attention to Ordinance VII of the

University providing for admission to NCWEB only for women residing

within the territorial jurisdiction of the University i.e. National Capital

Territory of Delhi. The documents of Daulat Ram College from where the

petitioner had graduated are also handed over to show that the address of the

petitioner has always been of Bahadurgarh only. It is pleaded that the

petitioner even in the application for admission to MA (English) course had

given the address of Bahadurgarh and has mischievously in the present

petition given her address as of Delhi. Attention is also invited to the

petitioner‟s own admission in her letter dated 26th August, 2010 to the

University of mistake in not applying for admission to NCWEB.

7. The counsel for the University has further contended that if at all

candidates who had not applied for admission to NCWEB and/or who were

not resident of Delhi were also to be directed to be admitted to NCWEB,

there were 14 candidates ahead of the petitioner in the merit list of the OBC

category and offer shall have to be made to them first before to the

petitioner.

8. It is yet further contended that the admissions closed on 31st August,

2010 and the first term examinations are about to commence and the

petitioner for this reason also cannot be granted any relief.

9. The counsel for the petitioner has begun his arguments by contending

that the University has not dealt with the seats reserved for OBC‟s in the

MA (English) course in accordance with the judgment of this Court in

Apurva (supra) and had that judgment been followed, the petitioner would

have been entitled to get admission in the North / South Campus also.

10. However, as aforesaid, the petitioner had earlier confined the relief in

this petition to NCWEB only and not pursued the petition for admission to

North / South Campus. The petitioner even while agreeing to have the

earlier order of this Bench allowing the petition set aside did not state before

the Division Bench that she was withdrawing the earlier concession or

would now be seeking admission in North / South Campus also on the basis

of the judgment in Apurva. Similarly, when the matter came up again

before this Bench on 22nd November, 2010 when time was given to the

University to file counter affidavit, the petitioner did not state so.

Resultantly, there is no counter affidavit of the respondent University on this

aspect. The respondent University was not party to the judgment in Apurva

and the counsel for the respondent states that the respondent University may

participate in the SLP pending before the Supreme Court against the

judgment in Apurva. In the absence of the counter affidavit, it is also not

known whether the petitioner would be entitled to admission in North /

South Campus even if Apurva was applied.

11. In the circumstances aforesaid, option was given to the counsel for the

petitioner to either have the matter adjourned to enable the respondent

University to file a counter affidavit on the said aspect or to proceed with the

arguments limited to claim for admission in NCWEB. The counsel after

much dithering and stating that if the matter is adjourned, the petition would

become infructuous, decided to argue, limited to admission to NCWEB only.

12. Notwithstanding the aforesaid, the counsel for the petitioner desired a

sympathetic view to be taken qua admission to NCWEB for the reasons

aforesaid. However, without it being known whether petitioner would have

been entitled to admission in North / South Campus or not, the same cannot

be permitted.

13. The counsel has contended that the requirement of residence in Delhi

for admission to NCWEB has to be read in context and argues that the

petitioner would be considered to be a resident of Delhi for the said purpose.

Again there are no pleadings in this regard, the counsel having chosen not to

file any rejoinder. Yet again after much dithering, the counsel decided to

proceed with the argument without filing rejoinder.

14. Reliance is placed on the following judgments on the aspect of

residence:

(i) Judgment dated 11th May, 2005 of the Apex Court in Appeal

(Civil) No.3268-3270/2005 titled Bhagwan Dass Anr. Vs.

Kamal Abrol & Ors.

(ii) Dr. Pradeep Jain Vs. Union of India AIR (1984) SC 1420

(Para 2).

(iii) Union of India Vs. Dudh Nath Prasad AIR 2000 SC 525

(paras 23,25 & 26).

(iv) Laxmi Narayan Vs. State of Jharkhand AIR 2002 Jharkhand

104 (paras 12,13 & 14).

However, none of the judgments are found relevant. The requirement

in the Ordinance of the University of residence in Delhi is unequivocal. The

said ordinance is not under challenge in this proceeding. The petitioner by

no stretch of imagination can be said to be residing in Delhi. The counsel

for the petitioner has also relied on:

(i) Convention on the Elimination of All Forms of Discrimination

against Women.

(ii) Extracts from Report No.224 (of June, 2009) of Law

Commission of Indian on amendment of Section 2 of the

Divorce Act, 1869.

(iii) Second Principle of Justice enunciated by Johan Rawls in his

book "Theory of Justice".

15. Again need is not felt to burden this judgment with a discussion on

any of the above and suffice it is to state that the same have no relevance.

16. The petitioner having not applied for admission to NCWEB as she

was required to do, cannot be granted the relief of admission to NCWEB.

17. The Supreme Court recently in Maharshi Dayanand University Vs.

Surjeet Kaur JT 2010 (7) SC 179 has reiterated that the Court has no

competence to issue a direction contrary to law, nor the Court can direct an

authority to act in contravention of statutory provisions. It was further held

that the Courts cannot be generous or liberal in issuing directions which in

substance amount to directing the authorities concerned to violate their own

statutory Rules and Regulations. It was further reiterated that the High Court

under Article 226 of the Constitution of India is required to enforce rule of

law and not pass order or direction which is contrary to what has been

injuncted by law. The Supreme Court held that a public authority cannot be

debarred from enforcing a statutory provision. To the same effect are the

judgments in (i) Hope Textiles Ltd. Vs. UOI 1995 Supp. (3) SCC 199; (ii)

State of UP Vs. Nidhi Khanna (2007) 5 SCC 572 and; (iii) Vice-

Chancellor, University of Allahabad Vs. Anand Prakash Mishra (Dr.)

(1997) 10 SCC 264.

18. The petitioner is thus not found entitled to the relief to which the

petition was confined.

The petition is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 30th November, 2010 „gsr‟