Vibha Verma vs Delhi Technological University & ...
2011 Latest Caselaw 5829 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P. (C) No. 6522 of 2011

                                     Reserved on: 3rd October, 2011
%                              Pronounced on: 30th November, 2011


      VIBHA VERMA                                   . . . PETITIONER

                              Through:    Mr.     Ashok        Gurnani,
                                          Advocate.

                               VERSUS

      DELHI TECHNOLOGICAL
      UNIVERSITY & ORS.                           . . .RESPONDENTS

                              Through:    Ms.     Avnish      Ahlawat,
                                          Advocate for     Respondent
                                          Nos. 1 & 2.

                                          Ms. Ruchi Jain, Advocate for
                                          Respondent No.3/UOI.

                                          Ms. Purnima      Maheshwari,
                                          Advocate for     Respondent
                                          No.4.

      CORAM :-
      HON'BLE THE ACTING CHIEF JUSTICE

HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

A.K. SIKRI, ACTING CHIEF JUSTICE:

1. The petitioner passed the Senior Secondary School

Examination conducted by the Central Board of Secondary

Education (hereinafter referred to as „CBSE‟), Delhi in May,

2010. In order to get admission in Engineering Course, she

applied for appearance in All India Engineering/Architecture

Entrance Examination (AIEEE), 2011, which is conducted by

CBSE, Delhi. Admission card was issued to her. She got

herself registered with Netaji Subhash Institute of

Technology (University of Delhi) by taking recourse to online

registration. She further wanted herself to be treated in the

category of "Other Backward Class" (OBC) and mentioned as

such in the particular box by her in the aforesaid

registration. The petitioner has obtained Caste certificate

showing that she belongs to OBC category, she had obtained

such a certificate from the Office of Tehsildar, Sadar - Etah,

Uttar Pradesh, as per which she belongs to Lodhi caste,

which is an OBC in Uttar Pradesh. She had also obtained

similar caste certificate issued by the Government of India

from the Office of Sub-Division Magistrate, Uttar Pradesh.

Lodhi caste is identified and recognized as OBC in the State

of Uttar Pradesh and is not related to Creamy Layer.

2. However, that the aforesaid status by the petitioner has not

been recognized while the Delhi Technological University

(formerly known as Delhi College of Engineering) has vide

communication dated 20.8.2011, her admission is cancelled

on the ground that she could not produce appropriate

documentary evidence/certificate for OBC category. The

stand taken by the respondent No.1 is that the petitioner is

supposed to produce a certificate for this category issued by

the Govt. of NCT of Delhi. The certificates produced by the

petitioner, which are issued by the Office of Tehsildar,

Sadar-Etah, U.P. as well as the Government of India have

not been treated as sufficient to enable her to take

advantage of getting admission under the category of OBC.

3. In these circumstances, challenging the action of the

respondents, present writ petition is filed with following

prayers:

" PRAYER

It is, therefore, most respectfully prayed that the Hon‟ble court in view of the facts and circumstance explained above, may kindly be pleased to:

i) Issue a writ of Certiorari quashing the notice (Annexure-J) including any rule regulation circular notification or guidelines including statute issued by respondents No.1 and 2 and the notice issued by Respondent No.1 and 2 as reproduced in para No.9 of the Writ Petition, being ultra vires of the Constitution of India and of the National Commissioner for Backward Classes 1993 more particularly of Section 2(a) and 2(c) thereof.

ii) Issue a writ of Certiorari quashing the letter dated 20.08.2011 (Annexure-G) issued by Respondent No.1 cancelling the admission of the petitioner with respondent No.1.

iii) Issue a writ of Mandamus and any other appropriate writ or direction, directing the respondent No.1 to grant admission to the

petitioner with respondent No.2 as a student of engineering of 1st year as per her rank in the reserved category of other backward classes.

iv) With prejudice to the above, a declaration that Annexure H issued by Respondent No.4 does not cover the issue of a caste certificate relating to admission in an educational institution and relates to reservation for jobs only and in cases, it is, applicable for reservation for backward classes for admission in an educational institution, the same is ultra vires.

v) With prejudice to the above, a declaration that the issue of issuance of a certificate for backward classes is governed by Article 15(5) of The Constitution of India and under the National Commission for Backward class Act 1993 and Respondent No.5 by means of a Writ of Mandamus or by any appropriate writ or direction, be directed to lay down the policy regarding the recognisation (sic. recognition) of a certificate for Other Backward Classes for the entire territory of India and having the recognisation (sic. recognition) for entire territory of India and not based on State to State or Union Territory to Union Territory basis."

4. It may also be pointed out that as per the list of OBC issued

and maintained by Govt. of NCT of Delhi, caste Lodhi, Lodha,

Lodh, Maha Lodh fall within the category of caste under

OBC. The only question, which arises for consideration in

the aforesaid circumstances is as to whether, that to accord

status of OBC, it is incumbent to have the certificate issued

by the Govt. of NCT of Delhi. Since it is a pure question of

law and there is no dispute on facts, counsel for the parties,

the respondents chose not to file the counter affidavit and

matter was argued finally. We may point out at the stage

that as per the respondents, the matter was squarely

covered by the common judgment of the Division Bench of

this Court dated 25.7.2011 rendered in three writ petitions

with lead case being W.P.(C) No.610/2011 entitled DSSSB &

Anr. Vs. Mukesh Kumar & Ors. That was a case related

to Scheduled Caste candidates on the identical question,

viz., whether it was necessary to have Scheduled Caste

certificate of Delhi origin issued by the competent authority

of the Government of NCT of Delhi for getting the benefit of

reservation . The Court answered the same in the

affirmative relied upon the judgment of the Apex Court in

the case of Subhash Chandra & Anr. Vs. DSSSB & Ors.,

2009 (11) SCALE 278. The relevant portion is extracted

below, which provides the raison d'etre:

"7. At the very outset, we may state that there is no dispute that the Competent Authorities of Govt. of NCT of Delhi had issued Scheduled Caste Certificates in favour of the respondents on the basis of the certificates to their parents by other States. On a perusal of the decision in Subhash Chandra & Anr. (supra), it is clear as crystal that the Apex Court has followed the decisions in Marri Chandra Shekhar Rao (supra) and the Action Committee (supra). The Constitution Bench in Marri Chandra Shekhar Rao (supra) has clearly laid down that a candidate recognized as a member of Scheduled Tribe and

Scheduled Caste in his original State on his migration to another State, would not be entitled to get the benefit of reservation of seats. After laying down the principles, their Lordships have stated thus:

"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic in voluntary) transfer, will they be WP(C) entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration."

8. In the case of the Action Committee (supra) another Constitution Bench referred to the decision in

Marri Chandra Shekhar Rao (supra) has opined thus:

"16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution".

" 9. In the case of Subhash Chandra & Anr. (supra) their Lordships were dealing with the notifications and circulars issued by National Capital Territory of Delhi in terms of Clause (1) of Article 341 of the Constitution of India and in that context their Lordships have expressed thus:

"Both the Central Government and the State Government indisputably may lay down a policy decision in regard to reservation having regard to Articles 15 and 16 of the Constitution of India but such a policy cannot violate other constitutional provisions. A policy cannot have primacy over the constitutional scheme. If for the purposes of Articles 341 and 342 of the Constitution of India, State and the Union Territory are at par on the ground of administrative exigibility or

in exercise of the administrative power, the constitutional interdict contained in clause (2) of Article 341 or clause (2) of Article 342 of the Constitution of India cannot be got rid of."

10. From the aforesaid pronouncement of law, it is vivid that Scheduled Castes or Scheduled Tribes in one State cannot get the benefit in another State. The parents of the respondents may belong to the castes of „Chamar‟, „Jatva‟, „Kali‟ and „Pasi and those castes may have been notified in terms of Scheduled Caste Order or Scheduled Tribe Order issued in terms of Clause (1) of Article 341 or Article 342 of the Constitution of India in a particular State but the respondents who have obtained the certificates in Delhi on the basis of the certificates of their parents issued by other States and have migrated to Delhi, cannot avail the benefit. Thus, the view expressed by the tribunal that they belong to Scheduled Castes in the National Capital Territory of Delhi because of the said notification and, hence, what is only required is the authentication and verification of the same is not in consonance with the decisions of the Marri Chandra Shekhar Rao (supra), Action Committee (supra) and Subhash Chandra & Anr. (supra)."

5. Submission of Mr. Gurnani, learned counsel appearing for

the petitioner, however, was that the aforesaid decision of

the Division Bench of this Court will not be applicable and he

tried to make the following distinction:

(i) OBC is a different category, entirely distinct from

Scheduled Caste and Scheduled Tribe categories

and different provisions of the Constitution

applied in the case of OBC category.

(ii) The case of the petitioner was governed by the

National Council for Backward Classes, 1983.

(iii) The judgment of the Supreme Court in Subhash

Chandra & Anr. (supra) as well as this Court‟s

judgment in Mukesh Kumar & Ors. (supra)

were concerned with the reservation in

employment which has been treated different

than the reservation in the field of educational

institutions.

6. Dilating the aforesaid arguments, Mr. Gurnani submitted

that by the Constitution First Amendment Act, 1951, Article

16(4) was added which reads as under:

"16 (4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

Similarly, vide the Constitution 93rd Amendment Act, 2005,

Article 15(5) was added to the Constitution, which reads as

under:

"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provisions by law, for the advancement of any socially and educationally backward classes of citizens of for the Scheduled castes and the Scheduled tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30."

7. He further argued that Article 340 of the Constitution of

India provides for appointment of a Commission to

investigate the conditions of backward class and Article 341

of the Constitution of India deals with the power of the

president of India providing that the President with respect

to any State or Union Territory or where it is a State after

consultation with the Governor thereof by public notification

specify the castes, races or tribes or parts of or groups

within castes, races or tribes who shall be for the purpose of

the Constitution of India be deemed to be Scheduled Caste

in relation to that State or Union Territory as the case may

be. This Article also provides that the Parliament may by

law include in or exclude from the list of Scheduled Caste

specified in the notification issued under Clause 1, any caste,

race or tribe or part of or group within any caste, race or

tribe, but the same as aforesaid in notification issued under

the said clause shall not be varied by any subsequent

notification.

Article 342 of the Constitution of India provides in the same

terms the power of the President and Parliament with

respect to Scheduled Tribes.

9. His argument was that as a result thereof, a perusal of

Articles 341 and 342 shows that with respect to Scheduled

Caste and Scheduled Tribunes, the President of India may

issue the notification and the Parliament also by law include

or exclude from such list any caste, race or tribe or part of

or group within any caste, race or tribe.

10. He also placed strong reliance on the judgment of the

Supreme Court in the case of Indira Sawhney and Others

Vs. Union of India, 1992 Sup. (3) 217. He summed up his

submission by arguing that keeping in view the purpose that

the backward classes are to be uplifted in all spheres of life

including the education (admission in educational institution)

and in service, methods are to be evolved for their

identification and upliftment through the territory of India

and not confined to a particular State (province) or group of

States (provinces) or Union Territory or group of Union

Territories. A person who has been identified as backward in

one particular State (province) or Union Territory does not

looses the requirement of being uplifted if migrated for one

reason to other to another State (province) or Union

Territory.

11. We are not persuaded by the aforesaid submission of

learned counsel for the petitioner. The distinctions which the

learned counsel has pointed out will have no bearing or

effect on the outcome of the case of the petitioner. No

doubt, Mukesh Kumar (supra) was a case which concerned

with scheduled caste candidates. However, the issue was

identical, namely, whether it was necessary to have a

certificate of Delhi origin issued by competent authority of

the Government of NCT of Delhi for getting the benefit of

reservation. Whether this benefit of reservation is claimed

by a scheduled caste candidate or by a OBC candidate will

not make any difference. The focal point is the

determination of competent authority whose certificate is

necessary for claiming the benefit of reservation. In

Mukesh Kumar (supra), this Court decided that in order to

avail such a benefit of reservation, it is necessary to have

certificate of Delhi origin issued by the Government of NCT

of Delhi. Once that is the competent authority, namely,

Government of NCT of Delhi, this principle will apply to every

other category seeking benefit of reservation, whether it is

scheduled tribe or OBC. Likewise, it would not make any

difference whether benefit is sought for employment or for

admission in the educational institutions. We are, therefore,

of the opinion that judgment of the Division Bench in

Mukesh Kumar (supra) squarely applies. We thus find no

merit in this writ petition which is accordingly dismissed.

THE ACTING CHIEF JUSTICE

(SIDDHARTH MRIDUL) JUDGE NOVEMBER 30, 2011 Pmc/pk