Dharmendra Kumar vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 5411 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 4843/2011 and C.M. No.9827/2011 (stay)

                                                 Decided on: 09.11.2011
IN THE MATTER OF :

ANITA MEENA                                       ..... Petitioner
                        Through: Mr. Deepender Hooda, Adv.


                  versus



GOVT. OF NCT OF DELHI & ORS.                     ..... Respondents
                    Through: Ms. Avnish Ahlawat with
                    Ms. Latika Chaudhary, Adv. for R-2 & 3.
                    Ms.Shawana Bari, proxy counsel for
                    Mr. Mohinder Rupal, Adv. for R-4 & 5.


       W.P.(C) 6078/2011 and C.M. No.12278/2011 (stay)

DHARMENDRA KUMAR                                  ..... Petitioner
                        Through: Mr. Deepender Hooda, Adv.

                  versus

GOVT. OF NCT OF DELHI & ORS.                     ..... Respondents
                    Through: Ms. Avnish Ahlawat with
                    Ms. Latika Chaudhary, Adv. for R-2 & 3.
                    Ms.Shawana Bari, proxy counsel for
                    Mr. Mohinder Rupal, Adv. for R-4 & 5.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

    1. Whether Reporters of Local papers may          No
       be allowed to see the Judgment?

    2. To be referred to the Reporter or not?         No

    3. Whether the judgment should be                 No
       reported in the Digest?

W.P.(C) No.4843/2011 and 6078/2011                               Page 1 of 13
 HIMA KOHLI, J. (Oral)

1. The present petitions are filed by the petitioners praying inter alia

for issuance of directions to respondents No.2 & 3/Netaji Subhash

Institute of Technology to admit them to the Bachelor of Engineering

(Computer Engineering) Course and the Bachelor of Engineering

(Instrumentation and Control Engineering) Course respectively at the

Institute.

2. For the sake of convenience, only the facts of W.P.(C) 4843/2011

are referred to. The brief facts of the case are that the petitioner who

belongs to the Scheduled Tribe Category, and is a permanent resident of

Delhi, passed class XII examination in the academic year 2010-11 and

appeared in the All India Engineering Entrance Examination-2011. On

7.7.2011, the petitioner appeared for counseling and admission in the

respondent No.2/institute, along with the relevant documents including a

certificate of caste under the category of Scheduled Tribes issued by the

appropriate authority in the State of Rajasthan. However, respondent

No.2/institute objected to the said certificate and declined to accept the

candidature of the petitioner on the ground that for the said Scheduled

Tribes Certificate to be accepted, it was required to be issued by

respondent No.1/Govt. of NCT of Delhi. On the very next day, the

petitioner approached respondent No.1/Govt. of NCT of Delhi for issuance

of a Scheduled Tribes Certificate, which was duly issued in her favour

(Annexure P-5). The said certificate certified that the petitioner belonged

to the Meena Caste/Tribe and that the same was being issued on the

basis of the Scheduled Tribes Certificate issued in favour of the father of

the petitioner, a resident of District Jaipur, Rajasthan.

3. It is the case of the petitioner that even after producing the

aforesaid certificate issued by respondent No.1/Govt. of NCT of Delhi,

respondents No.2 & 3 rejected her candidature. Aggrieved by the same,

the petitioner made a representation dated 9.7.2011 to the respondent

no. 5/University of Delhi complaining against respondents No.2 & 3. The

Deputy Dean, Students Welfare, University of Delhi, South Campus, New

Delhi, made an endorsement on the complaint of the petitioner to the

effect that once the petitioner had produced a Scheduled Tribes Certificate

from Rajasthan, that in itself would be valid for grant of admission to her,

and further that, considering the fact that the petitioner had approached

the institution within time prescribed, respondents No.2 & 3 should look

into her case.

4. On 11.7.2011, the petitioner again approached respondents No.2 &

3 with the aforesaid observations made on the complaint, but the same

was still not considered and as a result, she has filed the present petition

claiming that denial of counseling and admission to her is illegal and

arbitrary on the part of the respondents.

5. Notice was issued in W.P.(C) 4843/2011, vide order dated

13.7.2011 and in W.P.(C) 6078/2011, vide order dated 23.8.2011. While

issuing notice, an order was passed on the interim application filed by the

petitioner, wherein it was directed that pending disposal of the present

petition, the petitioner would be allowed to participate in the counseling

which was scheduled to be held on 14.7.2011. It was further made clear

that the admission of the petitioner to the course in question would be

purely provisional and would not create any special equity or right in her

favour, and that the said provisional admission would be subject to the

final outcome of the present writ petition.

6. After the completion of pleadings in the present writ petition, on

10.8.2011, counsel for the petitioner pointed out that out of 85% seats

allocated for the Delhi region, 7.5% seats were reserved by respondents

No.2 & 3 for the Scheduled Tribes category and the petitioner being one

of the eligible candidates from Delhi and also belonging to the Scheduled

Tribes category, is entitled to admission for the said course on the

strength of the aforesaid 7.5% quota.

7. The aforesaid submission made on behalf of the petitioner was

opposed by the counsel for the respondents No.2 & 3, who stated that the

petitioner could not have been granted admission under the Scheduled

Tribes category as the certificate produced by her was issued by the Govt.

of NCT of Delhi, only certifying that she belonged to a Scheduled Tribe

which had been notified in Rajasthan, however since no Scheduled Tribes

have been notified in the State of NCT of Delhi, she cannot avail the

benefit of the said reservation. After recording the submissions of both

the sides, respondents No.2 & 3 were directed to file an additional

affidavit stating the manner in which they had filled the 36 seats which

constitute the 7.5% quota in the Scheduled Tribes category and the

certificates produced by them, if it was their case that no Scheduled

Tribes had been notified in Delhi. It was further directed that as an

interim arrangement, the petitioner would be permitted to attend her

classes in respondent No.2/college till the next date of hearing.

8. Pursuant to the aforesaid order, an additional affidavit was filed by

respondents No.2 & 3 on 3.9.2011, relevant portion of which is

reproduced herein below:

"5. That under Delhi S.T. Category 7.5% of total seats are reserved for the Scheduled Tribe Category against which 44 students of ST category have been admitted by the respondent Institute during Academic Session 2011-12 as per past practice, on the basis of the Cabinet decision No.1667 dated 12.7.2010 of the Government of Delhi forwarded by the Department of Training & Technical Education, Government of Delhi for information and necessary action, vide their letter No.1(1058)/2009-SB/453-58 dated 21.7.2010 (Annexure R-1 colly). The complete details of such students and the details about their certificates furnished by them are Annexed as R-2.

6. That the candidates who were given admission against the ST reserved category are having certificate issued by the Competent Authority of the

Government of Delhi.

7. That accordingly the respondent is in the process of issuing the show cause notice to these candidates as to why their candidature should not be cancelled."

9. On a pointed query addressed to the counsel for respondents No.2

& 3 as to whether the respondents have issued any notice to show cause

to the 44 students who have been admitted for the academic session

2011-12 under the Scheduled Tribes quota of 7.5% of the total seats

based on certificates issued by the competent authority of the Govt. of

Delhi, the reply is in the negative.

10. Further arguments were addressed by the counsels today. Counsel

for the petitioner relies on a judgment of the Division Bench in the case of

UOI vs. B.R. Ambedkar Memorial Fund, reported as 127 (2006) DLT

557 (DB) to submit that once a person has obtained the necessary

SC/ST Certificate from a particular State and he later on migrates to the

Union Territory of Delhi, he would still be entitled to the benefit of

reservation in the Scheduled Tribes quota based on the notification dated

27.8.2003 issued by the Central Government. While deciding the

aforesaid writ petition, the Division Bench followed the decision of the

Supreme Court in the case of S. Pushpa & Ors. vs. Sivachanmugavelu &

Ors., reported as (2005) 3 SCC 1, wherein it was held that ;

"21. ... If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order issued for such Union Territory."

11. Counsel for the petitioner submits that in the aforesaid decision in

S. Pushpa (supra) (3-Judges), the Supreme Court had considered an

earlier Constitution Bench judgment rendered in Marri Chandra Shekhar

Rao v. Dean, Seth G.S. Medical College reported as (1990) 3 SCC 130

(5-Judges), wherein it had been held when a Scheduled Caste or Tribe

migrates, he does not and cannot carry any special rights or privileges

granted to him in the original State to the State to which he has

migrated. After consideration of the aforesaid decision, the judges in S.

Pushpa (supra), had distinguished the cases of Marri Chandra (supra) to

hold that the ratio laid down in it would be applicable only when the

migration was from one state to another, and not where the migration is

to a Union Territory.

12. However, counsel for the respondents No.2 & 3, submits that the

aforesaid decision of the Supreme Court in the case of S.Pushpa (supra)

has been considered per incuriam by the Supreme Court in its subsequent

decision in the case of Subhash Chandra & Anr. vs. DSSSB & Ors.,

reported as 2009 (15) SCC 458, inasmuch as it was passed in ignorance

of a binding precedent of a larger Constitutional Bench in the case of

Marri Chandra (supra). It was further held that the dicta laid down in the

S. Pushpa (supra) would be obiter inasmuch as following the principle laid

down in the said judgment would lead to an absurdity. Thus, as per the

counsel for respondent No.2 & 3, the principle laid down in Marri Chandra

(supra) that the benefit of reservation cannot be availed by a person

belonging to a Scheduled Tribe person in the state to which he migrates,

had to be followed.

13. Counsel for respondents No.2 & 3 further states that the Supreme

Court in Subhash Chandra‟s case (supra) noted that no Presidential

Notification has been issued under Article 342 of the Constitution of India

identifying Scheduled Tribe for the Union Territory of Delhi and that only a

Presidential Order under Article 341 in regard to the Scheduled Castes

has been notified. She further submits that the law in that regard is well

settled now and that there being no Scheduled Tribe notified in the Union

Territory of Delhi, the petitioner cannot claim admission on the basis of s

Scheduled Tribes Certificate issued to her by the Govt. of NCT of Delhi by

relying in turn on a certificate issued to the father of the petitioner by the

competent authority in the State of Rajasthan certifying him to be a

Scheduled Tribe as notified in the State of Rajasthan. She further relies

on a recent decision of the Division Bench dated 25.7.2011 in a batch of

matters, lead matter being WP(C)No.610/2011 entitled „DSSSB & Anr.

vs. Mukesh Kumar & Ors.‟, wherein the judgment of the Supreme Court in

the case of Subhash Chandra (supra) was followed and it was held that

benefit of reservation in another State and merely because they have

managed to obtain a Scheduled Caste/Tribe certificate in Delhi based on

the certificates of their parents issued by other States, cannot entitle

them to avail the benefit of reservation in that Delhi.

14. This Court has considered the submissions made by both sides and

examined the documents placed on record. The law settled in the case of

Subhash Chandra (Supra) and followed by the Division Bench in the case

of DSSSB & Anr. vs. Mukesh Kumar & Ors. (supra), being quite clear,

needs no further elucidation and is binding on this court. Under ordinary

circumstances, in view of the fact that there are no Scheduled Tribes

notified in Delhi, this Court would not have hesitated in holding that the

petitioner could not obtain the benefit of reservation in the 7.5% quota

reserved for Scheduled Tribes based on a certificate in that regard, but

the additional affidavit filed by respondents No.2 & 3 reveals that for

reasons best known to them, they have continued to maintain the said

7.5% quota for Scheduled Tribes candidates for the academic year 2011-

12, by relying on a Cabinet decision of the Govt. of NCT of Delhi dated

12.10.2010 to the effect that the existing quota of 7.5% for Scheduled

Tribes candidates may be continued till an appropriate decision is taken in

respect of the revised draft bill entitled „The Delhi Educational Institutions

(Reservation in Admission) Bill, 2010‟. It is inexplicable as to why

respondent/Govt. of NCT of Delhi would create a 7.5% quota for

Scheduled Tribes, if there are no notified Scheduled Tribes in Delhi. If

there are no notified Scheduled Tribes in Delhi, and no person belonging

to a Scheduled Tribe notified in another State is permitted to be granted

admission in Delhi, then it would result in an absurdity inasmuch as the

7.5% quota seats would remain vacant.

15. It is also an undisputed position that for the academic session 2011-

12, not only have the respondents maintained the 7.5% quota in respect

of Scheduled Tribes candidates, but they have also proceeded to grant

admission to 44 students in the said category, on the strength of

Scheduled Tribes certificates obtained by them from the Competent

Authority in Delhi, based on the certificates issued to their parents by

other States. Once having granted admission to 44 students in the said

category it is rather strange that the petitioners, who were also similarly

placed, were not granted a similar advantage. Be that as it may, the

position which emerges today is that the aforesaid 44 students have been

admitted and are continuing to study in respondent No.2/Institution.

Respondents No.2 and 3 have filed their additional affidavit on

03.09.2011 stating inter alia that the institute was in the process of

issuing notices to such candidates to show cause as to why their

admission should not be cancelled, yet no such steps in that regard have

been taken till date. By now, the first Semester is virtually over.

16. In such circumstances, this Court can either direct respondents

No.2 & 3 to initiate the necessary steps to cancel the candidature of the

aforesaid 44 students, who have already got admission in the 7.5% quota

reserved for Scheduled Tribes category, thus jeopardizing their academic

careers in mid-stream, or in the alternate, treat the petitioners at par with

the aforesaid 44 students belonging to the Scheduled Tribes category and

to permit them to continue their studies in the courses in question in the

respondent No.2/institution.

17. Considering the fact that the predicament the petitioners finds

themselves in is not of their own making , it would be a grave injustice to

them to make them suffer a setback in their academic career for no fault

of theirs, due to the callous attitude of respondents No.2 & 3.

Respondents No.2 & 3 have erroneously relied on a cabinet decision of the

Govt. of NCT of Delhi dated 12.10.2010 and have maintained the existing

quota of 7.5% for Scheduled Tribes candidates, for the academic year

2011-2012, and proceeded to grant admission to 44 candidates based on

their flawed understanding of the decision of the Supreme Court in the

case of Subhash Chandra (supra), while at the same time arbitrarily

denying admission to the petitioners, who are similarly placed as the

aforesaid 44 candidates.

18. Counsel for the petitioner states that pursuant to the interim order

dated 10.8.2011, the petitioner in W.P.(C) 4843/2011 has not only been

regularly attending classes, but has also appeared for the mid-semester

examinations held in the month of September 2011, which fact is not

denied by the counsel for respondents No.2 & 3. However, it is submitted

by the counsel for respondents No.2 & 3 that despite the fact that the

petitioner in W.P.(C) 6078/2011 was also granted provisional admission in

the Institute and vide order dated 23.8.2011 was further permitted to

attend the classes during the pendency of the writ petition, he has

neither attended the classes nor has he taken the mid-semester

examinations. The aforesaid contention is not denied by the counsel for

the said petitioner.

19. Therefore, in the interest of justice and equity, this Court deems it

appropriate to permit the petitioner in W.P.(C) 4843/2011 to continue

her studies in the Bachelor of Engineering (Computer Engineering) course

at respondent No.2/Institute. However, while allowing the present

petition, it is made clear that this order shall not be treated as a

precedent in any other case, as the same has been passed on the peculiar

facts and circumstances of the present case, as set out in the preceding

paragraphs. W.P.(C) 4843/2011 is allowed, while leaving the parties to

bear their own costs.

20. On the other hand, despite a similar latitude being granted to the

petitioner in W.P.(C) 6078/2011, he has admittedly not been attending

the classes regularly and has not even sat for the mid-semester

examinations. It appears that the said petitioner is not interested in

pursuing the course as applied for by him at the respondent

No.2/Institute. As a result, this Court is not inclined to allow the petition

filed by him. Accordingly, W.P.(C) 6078/2011 is dismissed, along with the

pending application, with no order as to costs.

DASTI under the signatures of the Court Master.

                                                          (HIMA KOHLI)
NOVEMBER     09, 2011                                         JUDGE
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