Pallavi Doshi vs University Of Delhi & Ors.
2010 Latest Caselaw 4983 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 28th October, 2010.

+                          W.P.(C) No.4232/2010

%

PALLAVI DOSHI                                                     ..... Petitioner
                           Through:     Mr. N.N. Aggarwal and Mr. D.K. Thakur,
                                      Advocates.



                                      Versus


UNIVERSITY OF DELHI & ORS.                                   ..... Respondents
                           Through:      Mr. Mohinder J.S. Rupal and Ms. Sonam
                                         Gupta, Advocates for R-1.
                                         Mr. Ashok Singh, Advocate 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 was born of parents of Indian origin in USA and is a

citizen of USA. However, upon her father taking up employment in India,

the petitioner shifted to India and has since class III studied in schools in

India. The petitioner took the class XII examination held by the ICSE

Board, an Indian Board and applied for admission in Delhi University.

2. The Information Bulletin published by the University of Delhi for

admissions in the academic year 2010, in Clause 4.4 thereof provides as

under :

"4.4 Reservation of Seats for Foreign Students

At least 5% seats in the first year of each course in Colleges are reserved for foreign students. However, this reservation will not be open to those foreign students who have passed the qualifying examination for purposes of admission to the University from an Indian Board/University in India including Indian Boards like CBSE located in a foreign country."

3. The petitioner, though a foreigner (being not an Indian citizen)

having passed the qualifying examination from an Indian Board and

thus not eligible for reservation under clause aforesaid, preferred this

petition in June, 2010 challenging the Clause 4.4 aforesaid of the

Information Bulletin and seeking its quashing and seeking direction for

admission in the category of 5% seats reserved for foreign students. It

was inter alia the case of the petitioner that the Information Bulletin

required the petitioner to pay one time Foreign Student Registration Fee

of US $300 and US $100 per year to the College but was wrongfully

carving out an exception against foreign students who had passed the

qualifying examination from an Indian Board. The petition came up

before this Court during summer vacations on 16th June, 2010 when

notice was issued. No interim relief was granted to the petitioner.

4. On 2nd July, 2010 the counsel for the petitioner inter alia

contended that the reply of the respondent no.2 University Grants

Commission (UGC) was essential inasmuch as the University was

entitled to provide for reservation under the UGC Act, 1956 and the

Regulations of 1985 framed thereunder only. The counsel for the

University on that date argued that the petitioner had suppressed from

this Court that she was an overseas citizen of India and that she had

already taken admission to Miranda House College. The counsel for

the petitioner however contended that admission to Miranda House

College was on the basis of merit and in the General Category and if the

petitioner succeeded in the petition, she may be entitled to admission in

a better college/college of her choice.

5. The counsel for UGC on 13th July, 2010 informed that UGC had

not provided for reservation and the same was an internal matter of the

University according to instructions issued by the Central Government.

Accordingly, the counsel for the petitioner was heard on that day. The

counsel for the petitioner, during the course of hearing on that day,

impugned the competence of the University to carve out an exception

out of the reservation of 5% seats for foreign students. Since no such

plea had been taken in the petition, the petitioner was permitted to file

an amended petition. Amended petition and counter affidavit thereto

were filed. However, during the course of hearing on 6th September,

2010, the question again came up as to whether a Single Bench of this

Court would be entitled to entertain the petition challenging the

competence of the University to make the reservation or to carve out an

exception therein. The counsel for the petitioner, for the sake of

expediency, rather than having the petition placed as per roster before a

Bench which could entertain such challenge, gave up the said ground

and the petition thus has to be considered only on the basis of

interpretation of the Resolution of the Academic Council of the

University annexed to the counter affidavit of the University i.e.,

whether the same permits the University to carve out from the

reservation for foreign students an exception for the foreign students

with eligibility qualification from an Indian Board.

6. The counsel for the respondent no.3 Union of India has handed

over a copy of the letter dated 29th June, 2010 of the Ministry of Human

Resource Development stating that the Union of India is not concerned

with the admission process of the Delhi University which is required to

be in accordance with the provisions laid down in the Ordinances of the

University.

7. The University, in its counter affidavit, has inter alia pleaded that

reservation of 5% seats for foreign students has been provided with an

aim to provide opportunities to the foreign nationals who wish to study

at University in India; such students who are mostly from developing

countries and suffer from lower academic standards are unable to

compete with students from Indian Board / Universities; hence

necessitating reservation. It is further pleaded that the said reservation

is also with a view to maintain diplomatic relationship with foreign

countries and as a matter of policy. It is stated that there is an

intelligible differentia having a nexus with the object sought to be

achieved which is to promote opportunities of education for foreign

nationals in India. It is yet further stated that if admissions under the

said reservations are given to candidates as the petitioner, it would

defeat the very purpose and object sought to be achieved by providing

for reservations. The Foreign Student Registration Fee and the annual

fee aforesaid charged from the petitioner is also justified. It is further

pleaded that it has been left to the individual Colleges to consider

whether to grant reservation to foreign nationals or not, the seats being

supernumerary in nature and that the petitioner has no right to seek

reservation under foreign quota in any specific category. It is further

pleaded that the colleges in which the petitioner is seeking admission in

the reserved category have not even been made a party; St. Stephens

College being the first priority of the petitioner is stated to be having its

own admission criteria being a Minority Institution; Lady Shri Ram

College which is the second priority of the petitioner is informed to

have not provided any seat under the foreign quota in the current

academic year; similarly Shri Ram College of Commerce is informed to

have provided five seats under the foreign quota which have already

been filled up and lastly Hindu College is informed to have provided

only two seats which are also informed to have been filled up.

8. The University has relied on the Resolution No.304 passed by the

Academic Council of the University on 27th December, 1983 in this

regard and the copy of the said Resolution has also been annexed to the

counter affidavit. As aforesaid, the scope of the present petition is now

confined to interpretation of the said Resolution i.e. whether the Clause

4.4 (supra) of the Information Bulletin is in accordance with the said

Resolution or not.

9. Undoubtedly, the Resolution while providing for reservation of

5% seats in colleges affiliated to the University for foreign students

does not carve out any exception as in Clause 4.4 of Information

Bulletin (supra). However, para 11 of the same Resolution is as under:

"11. Foreign Students who are stationed in India and have passed last examination from Board/University in India may seek admission on the basis of merit alongwith other students after obtaining no objection certificate from the Foreign Students' Advisor. After their admission, each Faculty/College shall send a list of the Foreign Students admitted during the year to the Foreign Students' Cell."

10. The counsel for the petitioner has taken me through the

UGC Act, UGC Regulations, Delhi University Act, 1922, Statutes 8,

28, 29, 30 and 31 and Ordinance I. However, in view of the scope of

writ petition having been limited as aforesaid, it is not necessary to deal

with all the said arguments.

11. The counsel for the petitioner has argued that para 11 (supra)

cannot be the basis for excluding foreign students passing qualifying

examination from Indian Boards from reservations. It is contended that

para 11 is only an enabling provision.

12. I am not in agreement with the contention of the petitioner. Para

11 of the Resolution aforesaid of the Academic Council clearly

provides that foreign students stationed in India and who have passed

last examination from Indian Board are to seek admission only on the

basis of merit alongwith other students. If such foreign students also

were to be covered by the reservation, there was no need for providing

that they are to seek admission on the basis of merit, alongwith other

students. The Resolution clearly provides that the foreign students

falling in the reserved category are to be distributed by the University in

the Colleges on pro rata basis. On the contrary the foreign students

stationed in India and qualifying eligibility from Indian Boards were to

seek admission from individual Colleges as is the norm for the general

category candidates. It thus cannot be said that Clause 4.4 of the

Information Bulletin is contrary to the Resolution of the Academic

Council.

13. I also find that the term used throughout is a "foreign student" and

not a "foreign citizen" and on which basis the petitioner has made out

her case. The petitioner having studied in India since Class III and

being of an Indian origin cannot be said to be a "foreign student". The

University in providing for reservation for foreign students was

providing for students entering India for education in the University at

the time of admission and not those as the petitioner. Black's Law

Dictionary 6th Edition defines "foreign" as belonging to another nation

or country, made, done or rendered in another State or jurisdiction. The

petitioner who is of Indian origin and has studied in India since class III

and has passed examinations held by Indian schools and Indian Boards

cannot at the time of admission in University be said to be a foreign

student or a student coming from a foreign land.

14. There is no merit in the petition. The petition is dismissed. No

order as to costs.

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