Sh. Sukhanshu Singh vs Delhi Technological University & ...
2010 Latest Caselaw 4777 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 8th October, 2010.

+                           W.P.(C) No.5682/2010
%

SH. SUKHANSHU SINGH                                       ..... PETITIONER
                 Through:                 Dr. Vijendra Mahndiyan, Advocate

                                      Versus

DELHI TECHNOLOGICAL UNIVERSITY & ORS... RESPONDENTS
                 Through: Ms. Zubeda Begum, Advocate for R-
                           1 & R-2.
                           Mr. Sachin Dutta & Ms. Gayatri
                           Verma, Advocates for R-3/UOI.
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 petitioner by this writ petition impugns the action of the

respondent No.1 in, while providing for reservation for admissions for

widows / wards of Defence personnel, not including therein the widows /

wards of ex-servicemen and serving personnel.

2. The petitioner claims to be the son of a retired personnel of Indian Air

Force who retired in 1994 after serving for 15 years. The petitioner applied

for admission to B.Tech programme 2010-11 under the category reserved for

wards of Defence personnel. The petitioner, in the written examination

achieved the rank of 2010. The counselling for admission was scheduled

from 20th July, 2010 to 31st August, 2010. The petitioner was however not

called for counselling. The petitioner on enquiry learnt that the respondent

No.1 was not treating the wards of retired and serving Defence personnel in

the reserved category and accordingly filed the instant petition.

3. This petition came up before this Court first on 20 th August, 2010.

The contention of the counsel for the petitioner inter alia was that other

Institutions providing reservation for widows / wards of Defence personnel

were including not only:

(i) Widows / wards of Defence personnel killed in action.

(ii) Wards of serving personnel and ex-servicemen disabled in

action.

(iii) Widows / Wards of Defence personnel who died in peace time

with death attributable to military service.

(iv) Wards of Defence personnel disabled in peace time with

disability attributable to military service.

(v) Wards of ex-servicemen and serving personnel who are in

receipt of Gallantry Awards.

as the respondent no.1 also is, but also

(vi) Wards of ex-servicemen.

(vii) Wards of serving personnel.

which the respondent No.1 was not including under the said

category.

4. Notice of the petition was issued and this Court being of the view that

the Union of India should also be impleaded as a party, impleaded UOI

through the Ministry of Defence as a respondent to the petition.

5. The counsel for the Defence Ministry of the Government of India on

9th September, 2010 informed that the Defence Ministry had from time to

time issued merely recommendations to the Central Universities for

reservation for Armed Forces and the said recommendations are vis-à-vis all

the seven categories aforesaid i.e. they include the wards of ex-servicemen

and wards of serving personnel also who as aforesaid have been excluded by

the respondent No.1. An affidavit of Lieutenant Colonel A.N. Sen on behalf

of Kendriya Sainik Board, Ministry of Defence has also been filed stating

that the Kendriya Sainik Board functions under the Department of Welfare

of Ex-servicemen, Ministry of Defence and is responsible for formulation of

policies for welfare of ex-servicemen and widows; similarly there are Rajya

& Zila Sainik Boards at the State & District level respectively which

function under their respective Government / Union Territory

administration; the Kendriya Sainik Board with the assistance of Rajya

Sainik Board implements most of the welfare / policy recommendations. It

is further stated that a High Level Committee constituted by the Ministry of

Defence had in the year 1995 recommended a provision for reservation for

the wards of ex-servicemen and widows in professional and other

Institutions within the States and Union Territories within which they may

lie; that the said recommendations are not binding on the State Government

and the State Governments are free to choose or desist from implementing

them. The recommendation made in the year 2000 by the then Defence

Minister to the Ministry of Human Resource Development was for

reservation for all the seven categories aforesaid, with the first category i.e.

widows/wards of Defence Personnel killed in action having highest priority

and the seventh category i.e. wards of serving personnel having lowest

priority. With respect to the prospectus of the respondent No.1 University

providing for reservation for the first five categories only and not for the

remaining two categories, it is stated that the matter needs to be resolved by

the State Government in consultation with the respondent No.1 University.

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

the erstwhile Delhi College of Engineering affiliated to the Delhi University

has now been upgraded to the respondent No.1 University; that the Delhi

College of Engineering was following all the norms, procedures, eligibility

for reservation, Rules prescribed by the Delhi University; that the

respondent No.1 University is governed by its Act, Statutes and Ordinances

approved by the competent bodies of the University and the Academic

Council of the respondent No.1 University exercises general supervision

over the academic policies. It is further stated that the decision to lay down

reservation for five categories only under the Defence category and not for

the remaining two categories has been taken keeping in mind the "hardship"

factor. It is yet further pleaded that all the Central Universities / Institutions

have not included the wards of ex-servicemen in the Defence category. It is

yet further pleaded that the petitioner applied for admission with the full

knowledge that he was not eligible for reservation and is now estopped from

challenging the same. Reference in this regard is made to Madan Lal Vs.

State of Jammu and Kashmir (1995) 3 SCC 486.

7. The respondent No.1 University has filed an additional affidavit in

which it is stated that it has laid down five categories only under the Defence

category "to maintain high academic standard like the IITs. The University

of Delhi in its technical courses is also following only five categories." It is

further stated that non inclusion of the sixth and seventh category aforesaid

is for the reason of maintaining high standards and that if the sixth and

seventh category aforesaid is also included, merit in the respondent No.1

University may suffer.

8. I have enquired from the counsel for the respondent No.1 University

as to why the respondent No.1 University while opting to follow the

recommendation of the Kendriya Sainik Board has chosen to dissect the said

recommendation and to provide reservation for five categories only of the

seven categories recommended. Reason therefor is not evident from the

documents filed by the respondent No.1 University. On the contrary, in the

counter affidavit dated 23rd August, 2010 of the respondent No.1 University

it is stated:

"In case priority VI (wards of ex-servicemen) and VII (wards of serving personnel) have to be included under CW category for admission in the current admission session the necessary approval from the competent authority may be sought."

From the aforesaid, it appears that none in the respondent no.1

University has applied mind to the aforesaid aspect.

9. Insofar as the argument of the counsel for the respondent No.1

University that the other Central Institutions like the IITs providing

reservation for five categories only instead of all the seven categories under

the Defence Category reservation is concerned, no document in that regard

has been placed before this Court. Similarly, though it is pleaded that the

same is the position with respect to the technical courses in the Delhi

University, again no document has been placed.

10. On the contrary, the counsel for the petitioner has contended that the

respondent No.1 University is a State University and thus cannot follow the

central Universities, the provisions for reservation wherein are different. He

also states that the other State University namely the Guru Gobind Singh

Indraprastha University is providing for reservation for all the seven

categories. He has also placed before this Court the order dated 10th

February, 2004 of the Department of Training & Technical Education of the

Government of Delhi issued in pursuance to the judgment dated 14 th August,

2003 of the Supreme Court in CW(P) No.350/1993 titled Islamic Academy

of Education Vs. State of Karnataka laying down policy guidelines on

admissions and reservation of seats covering the AICTE approved courses /

Institutions affiliated to the GGSIP University. In the said order, while

providing for reservation for Defence category, reservation is for all the

seven categories. Though the counsel for the petitioner has also referred to

Dileep Damodaran Vs. Secretary to Govt. Education Department, AIR

1991 Andhra Pradesh 194 but the same was in relation to the Andhra

Pradesh Educational Institutions (Regulation of Admission and Prohibition

of Capitation Fees) Act, 1983 and is not found apposite to the controversy

over here.

11. Insofar as the respondent No.1 University in its affidavit has sought to

justify the reservation for five categories only, in the absence of any decision

of the Academic Council or other appropriate authority of the respondent

No.1 University for making out such distinction between the first five and

the sixth and seventh categories, no justification thereof is permissible as

laid down by the Supreme Court in Mohinder Singh Gil Vs. Chief Election

Commissioner (1978) 1 SCC 405. The respondent cannot seek to justify a

decision for reasons which did not form the basis thereof.

12. Else also, I am unable to hold that there is any rationale for the

respondent No.1 University to make such distinction. The Kendriya Sainik

Board, constituted with the specific object of looking into the said matter in

its wisdom has deemed it appropriate to provide for reservation for all the

seven categories i.e. for wards of children of serving and retired personnel

also. The said Board is an expert body to go into the said question and is

deemed to have considered all the factors in making the seven categories

aforesaid and in giving priority thereto. The respondent No.1 University

cannot be said to be best equipped to distinguish between the first five and

the remaining two categories. The classification made by the respondent

No.1 University is not shown to have any nexus to the object of reservation.

The Supreme Court also, recently in Union of India Vs. C.S. Sidhu (2010) 4

SCC 563 has commented with regret on the shabby manner in which the

army men in our country are being treated. It was commented that they

bravely defend the country even at the cost of their lives and deserve a better

and humane treatment. The same in my view applies to the present case

also. Once the Body constituted to look into the welfare measures relating

to personnel of the Defence forces has in its wisdom chosen to recommend

reservation for ex-servicemen and serving personnel also, though lowest in

terms of priority, I see no reason to deprive the wards of ex-servicemen from

the said benefit. Once the respondent No.1 University has accepted the

recommendation of reservation for Defence Category, it cannot be permitted

to twist it to its own liking and is bound to provide reservation for all seven

categories in terms of priority.

13. The petitioner has approached this Court even before the counselling

ended and this cannot be said to be estopped. The petitioner has also

demonstrated that those with lower rank than him have been admitted and

thus the question of his admission interfering with merit does not arise.

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

counsel for the respondent No.1 University has argued that the session has

begun. Though the Courts would ordinarily not interfere after the session

has begun and I have also been following the said principle with respect to

the petitions preferred thereafter but the petitioner in the present case

approached this Court well before the last date of counselling. Inspite of

best efforts of this Court, the case could not be decided earlier. In my view

the petitioner having been found entitled ought not to be deprived of the

relief. The Division Bench of this Court also in judgment dated 10th

December, 2009 in LPA No.622/2009 titled Dr. Manish Patnecha Vs.

Chairperson, Counselling Committee, AIIMS has held that remedy must

follow the right.

15. I, therefore direct the respondent No.1 University to admit the

petitioner to a seat under the Defence category within one week of today. I

refrain from imposing any costs on the respondent No.1 University.

RAJIV SAHAI ENDLAW (JUDGE) 8th October, 2010 „gsr‟