Ms. Akanksha Dokania vs Netaji Subhas Institute Of ...
2010 Latest Caselaw 4969 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 28th October, 2010.

+                                   W.P.(C) No.5205/2010
%
MS. AKANKSHA DOKANIA                                             ..... PETITIONER
                Through:                          Mr. F.K. Jha, Advocate
                                               Versus

NETAJI SUBHAS INSTITUTE OF
TECHNOLOGY & ORS.                       ..... RESPONDENTS
                  Through: Ms. Avnish Ahlawat & Mr. Nitesh
                           Kumar Singh, Advocate for R-1.
                           Mr. Mohinder J.S. Rupal & Ms.
                           Sonam Gupta, Advocates for R-2.

                                               AND

+                                   W.P.(C) No.5434/2010
%
MANISH KUMAR                                                      ..... PETITIONER
                                    Through:      Mr. Nitin Kumar, Advocate for Mr.
                                                  Naushad Alam, Advocate

                                               Versus

NETAJI SUBHAS INSTITUTE OF
TECHNOLOGY & ANR.                        ..... RESPONDENTS
                  Through: Ms. Avnish Ahlawat & Mr. Nitesh
                           Kumar Singh, Advocate for R-1.
                           Mr. Mohinder J.S. Rupal & Ms.
                           Sonam Gupta, 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?                            Yes

2.       To be referred to the reporter or not?                     Yes

3.       Whether the judgment should be reported                    Yes
         in the Digest?
W.P.(C) Nos.5205/2010 & 5434/2010                                              Page 1 of 6
 RAJIV SAHAI ENDLAW, J.

1. Both petitions concern admission in the OBC category to engineering

colleges in Delhi (of which respondent No.1, is one), made by the

respondent No.2 University of Delhi by holding the All India Engineering /

Architecture Entrance Examination (AIEEE). Both petitioners sought

admission to the engineering courses in the respondent No.1 Institute. The

respondent No.1 is an autonomous Institution of the Government of NCT of

Delhi. 85% of the total seats in the respondent No.1 Institute have been

allocated for the Delhi region and 15% seats for outside Delhi region. The

students passing from recognized Schools / Colleges / Institutions located

within the National Capital Territory of Delhi are eligible to apply for

admission in the Delhi region seats and students passing from Schools /

Colleges / Institutions located outside the National Capital Territory of Delhi

are entitled to apply for the outside Delhi region category. Both petitioners

passed their qualifying exam from recognized schools in Delhi and thus

applied for admission to the Delhi region seats, as aforesaid in the OBC

category.

2. Admission was denied to both the petitioners on their failure to

produce OBC Certificates issued by the authorities in Delhi. Both

petitioners produced OBC Certificate issued by authorities outside Delhi.

The present petition was filed averring that the respondent No.1 being

affiliated to the Delhi University, a Central University, was required to

accept OBC Certificate issued by authorities outside Delhi also and it was so

provided even in the prospectus issued for admission.

3. The counsel for the respondents appearing on advance notice had

argued that the procedure followed was in accordance with the judgment in

Subhash Chandra Vs. Delhi Subordinate Services Selection Board (2009)

15 SCC 458. However, finding that the prospectus issued permitted OBC

Certificate issued by any authority and not only issued by the authorities in

Delhi, notice of the petition was issued.

4. The respondent No.1 has filed a counter affidavit relying on the

judgment aforesaid. The counsels for the parties have been heard.

5. The counsel for the petitioner in WP(C) No.5205/2010 has argued

that the petitioner has been admitted in another course in the Institutes of the

Delhi Government in the OBC category on the basis of the OBC Certificate

issued by authorities outside Delhi and thus the stand of the respondent of

the petitioner being required to produce OBC Certificate issued by an

authority in Delhi is erroneous. The counsel for the respondents has met

the said arguments by relying on Union of India Vs. M.K. Sarkar (2010) 2

SCC 59 where in para 25 it has been held that if someone has been wrongly

extended a benefit, that cannot be cited as a precedent for claiming similar

benefit by others and guarantee of equality before law under Article 14 is a

positive concept and cannot be enforced in a negative manner; that if any

illegality or irregularity is committed in favour of any individual or group of

individuals, others cannot invoke the jurisdiction of courts for perpetuating

the same irregularity or illegality in their favour also, on the reasoning that

they have been denied the benefits which have been illegally extended to

others.

6. Else the counsels for the respondents have drawn attention to

paragraphs 45 and 64 to 79 of the judgment in Subhash Chandra (supra) to

contend that the respondent No.1 Institute is established by the Government

of NCT of Delhi; the admission to OBC category is to be on the basis of

production of OBC Certificate by an authority in Delhi and not by

authorities outside Delhi. In response to the argument of the counsels for

the petitioners that the petitioners fall in the OBC category in Delhi, it is

contended that no OBC Certificate issued by any authority in Delhi has been

produced till date.

7. The counsel for the petitioner in WP(C) No.5205/2010 on the basis of

judgment in Union of India Vs. Pritilata Nanda JT 2010 (7) SC 360 argued

that once the respondents had admitted the candidature of the petitioner and

allowed the petitioner to participate in the process of selection, it is not open

to them to turn around and question her entitlement to be considered for

admission. However, the facts in the present case are different. The

petitioners were required to produce the OBC Certificate at the stage of

counselling and which they failed to produce. Thus no benefit can be taken

of the said judgment.

8. The counsel for the petitioner in WP(C) No.5205/2010 has also

referred to Nair Service Society Vs. Dr. T. Beermasthan JT 2009 (4) SC

614 (paragraph 25) contending that a common rank list as per merit of all

the successful candidates having been prepared, the petitioners should not be

excluded. However, the said judgment is also not found apposite. The

petitioners having sought admission in the OBC category and having not

produced the OBC Certificate are not entitled to contend that they should

have been given preference, even without production of OBC Certificate,

over those having ranks below them but who had produced the OBC

Certificate. The counsel lastly relied on U.P. Public Service Commission

Vs. Satya Narayan Sheohare JT 2009 (6) SC 584 which is a judgment on

the aspect of declaration of OBC status after the commencement of the

recruitment process and which is not found applicable to the present case.

9. As far as language in the prospectus on the basis whereof notice was

issued is concerned, on closer examination, it is found that the language is

for admission for the 85% seats of the Delhi region as well as 15% seats for

outside Delhi region. The said language cannot derogate the principle of

law that those seeking admission in the Delhi region seats are required to

produce the OBC Certificate from authorities in Delhi region only.

10. There is no merit in the petitions. The same are dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 28th October, 2010 'gsr'..