Shivam Shresthi vs Uoi And Ors.
2012 Latest Caselaw 4981 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P. (C) No.4458 of 2012
                         W.P. (C) No.3943 of 2012

%                                Decision Delivered On: 24th August, 2012

+      W.P.(C) No.4458 of 2012

       SHIVAM SHRESTHI                                    . . . APPELLANT

                            through :         Dr.    Vijendra   Mahandiyan,
                                              Advocate along with Ms.
                                              Pallavi Awasthi, Advocate.

                                    VERSUS

       UOI AND ORS.                                    . . .RESPONDENTS

through: Mr. Sunil Kumar, Advocate along with Mr. Rajiv Ranjan Mishra, Advocate and Mr. Alok Kumar Shukla, Advocates for the Respondent No.1.

Ms. Zubeda Begum, Advocate for the Respondent No.2.

Mr. Sumit Chander, Advocate for the Respondent No.3.

+ W.P.(C) No.3943 of 2012

HARSHITA LAV . . . APPELLANT

through : Mr. Amit Khemka, Advocate along with Ms. Sanorita D.

Bharali, Advocate.

VERSUS

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY AND ORS. . . .RESPONDENTS

through: Mr. Mukul Talwar, Advocate along with Mr. Rajesh Kumar,

Advocates for the Respondent No.1.

Mr. B.V. Niren, Advocate for the UOI.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, Acting Chief Justice (ORAL)

1. These two writ petitions involve different shades of the issue, which pertains to priority of reservation and preferential treatments to the children of the Ex-Servicemen in admission into professional institutions. The Ministry of Defence, Government of India, in this behalf, had addressed a D.O. letter as far as back on 30.3.1992 to all the State Chief Ministers/Governors in pressing upon the need for such reservation. This letter reads as under:

"Recognizing the valuable service rendered to the country by Ex-Servicemen, Government attaches the utmost importance to their welfare and rehabilitation. While a lot has been done for their resettlement, much more remains. Two areas where time bound action is required are: (i) allotment of land to ex-Servicemen, at or near their native places to enable their resettlement after retirement; and (ii) preferential treatment to the children of ex-Servicemen in admission to educational institutions, particularly in medical/engineering colleges. Ex-Servicemen, who have remained away from their homes for most of their service careers, cannot satisfy the domiciliary restrictions. Consequently they are virtually State-less.

I shall greatly appreciate your kind personal interest and early response." (emphasis supplied)

2. It was followed by D.O. letter dated 03.6.1995 carving out the categories of the wards of Defence personnel in whose cases,

reservation in professional courses was found to be justified and for the purpose of standardization, the following prioritization was recommended:

"PRIORITY I- Widows/wards of Defence Personnel/Para Military Personnel killed in action.

PRIORITY II- Wards of serving personnel and ex- serviceman/Para Military Personnel disabled in action. PRIORITY III- Widows/wards of defence personnel/Para Military Personnel who died in peace time with death attributable to Military Service.

PRIORITY IV- Wards of Defence Personnel/Para Military Personnel disabled in peace time with disability attributable to Military Service.

PRIORITY V- Wards of ex-servicemen personnel and serving personnel/para military/police personnel who are in receipt of Gallantry Awards:-

1. Param Vir Chakra

2. Ashok Chakra

3. Sarvottam Yudh Seva Medal

4. Mahavir Chakr

5. Kirti Chakra

6. Uttam Yudh Seva Medal

7. Vir Chakra

8. Shaurya Chakra

9. Yudh Seva Medal

10.Sena, Nau Sena, Vayu Sena Medal

PRIORITY VI- Wards of ex-Serviceman PRIORITY VII- Wards of serving personnel."

3. The aforesaid request has been reiterated time and again by the Defence Ministry. Even on 29.8.2003, Defence Minister, Union of India had written a D.O. letter to Union Human Resource Development Minister expressing concern on the issue of full utilization of reservation of seats for the widows/wards of armed forces personnel killed/disabled in action or during peace time in Central/State Universities/Autonomous professional/non-professional

institutions reproducing the aforesaid seven priorities categories. Similar letters are addressed to the University Grants Commission as well. Various State Governments have followed the aforesaid instructions and given the reservation to the wards of Ex-Servicemen to admission in professional institutions. However, the aforesaid seven categories, as mentioned above, are not adopted in the same manner and present two cases are the example of that.

4. It starts by mentioning that the same is issued pursuant to the directions of the Supreme Court dated 14.8.2003 given in the matter of Islamic Academy of Education Vs. State of Karnataka, which judgment is reported as (2003) 6 SCC 697, for Defence category, 5% of seats for each programme are reserved for widows/wards of personnel of Armed Forces in the order of prescribed category. It mentions of all the seven categories in the same priority, as was stated by the Ministry of Defence and taken note of above.

5. The grievance of the petitioner is that insofar as Delhi Technological University, which is run by the Govt. of NCT of Delhi („DTU‟ for the sake of brevity) is concerned, though its prospectus for the year 2012-13 provides for reservation, all the seven categories are not mentioned therein and only first five categories are stipulated. It, thus, excludes the other two categories, viz., wards of Ex-Servicemen and wards of serving personnel. Submission of the petitioner is that this is not only contrary to the prioritization/categorization as mentioned by the Ministry of Defence, which carves out seven categories, the Govt. of NCT of Delhi itself had adopted different

standardization when it comes to Guru Govind Singh Indraprastha University [hereinafter referred to as „Indraprastha University‟].

6. In W.P.(C) No.4458/2012, it is mentioned that the petitioner is concerned with admission into DTU. As far as the Govt. of NCT of Delhi, it has issued orders dated 10.2.2004, which contains policy guidelines on admission and reservation of seats covering the AICTE approved course/institutes affiliated to the Indraprastha University for the Academic Year, 2004-05. The petitioner terms it as discriminatory and seeks a direction or writ in the nature of mandamus commanding Govt. of NCT of Delhi maintained parity in the matter of reservation.

7. In W.P.(C) No.3943/2012, the petitioner is seeking admission in Indraprastha University. Her grievance is of a totally different nature, as already pointed out above, the Indraprastha University stipulates all the seven categories in order of priority. That means 5% of seats reservation for Defence category are to be offered to those who fall in priority (1); thereafter left out seats are to be filled up from priority two and so on. The petitioner falls in category 7, viz., „Wards of Serving Defence Personnel‟. Her submission is that there is no different between category 6 and category 7 and therefore, Category 6 and 7 should be merged and treated as one category, which would mean that „Wards of Serving Defence Personnel‟ should be treated at par with „Wards of Defence Ex- Servicemen‟.

8. Before we deal with the issues raised in these two writ petition, on their merits, we would like to point out that this aspect has

gathered the attention of this Court in few cases. In Arunima Chandel Vs. University of Delhi and Ors. [W.P.(C) No.4608/2010, decided on 31.8.2010 by this Court], the question arises about the fixation of priorities as per which first candidate in the first category/priority is to be given preference over the others and candidates falling in second category are to be given preference over the candidates, who fall in category 3 and below....... and so on. Referring to earlier judgment dated 17.8.2010 rendered in the case of Miss. Harleen K. Bains. Vs. The University of Delhi and Anr. [W.P.(C) No.5015/2010], the learned Single Judge approved the prioritization in the following manner:

"5. The relevant part of the provision in the Bulletin of Information published by the respondent no.1 University in this regard is as under:-

"4.2 Reservation for Armed Forces

5% of the total number of seats in each of the course has been reserved for the Children/Widows/Wives of the Officers and Men of the Armed Forces including Para-Military Personnel, killed/disabled in action or those who died/or disabled on duty and the wards of ex- service men personnel and serving personnel who are in receipt of gallantry award and are seeking admission will be required to get their names registered for Science Courses at the Faculty of Science, North Campus, University of Delhi and other than Science Courses at Room No.220, New Administrative Block, North Campus, University of Delhi (between May 28, 2010 to June 11, 2010 from 10.00 A.M. to 1.00 P.M. excluding Sundays).

Relaxation to the extent of 5% in the minimum marks in the aggregate or in the subject, as the case may be, will be given to the candidates of the below mentioned categories while determining their eligibility to the course concerned.

 Widows/Wards of Defence personnel killed in action;

 Wards of serving personnel and Ex- servicemen disabled in action;  Widows/Wards of Defence personnel who died in peace time with death attributable to military service;

 Wards of Defence personnel disabled in peace time with disability attributable to military service;

 Wards of Ex-servicemen personnel and serving personnel including police personnel who are in receipt of Gallantry Awards;

(Above categories are also applicable for Para Military personnel);"

6. The respondent no.1 University in its counter affidavit has stated that the admissions in the aforesaid categories are required to be made in order of preference, with the candidate in a higher category having a preference over that in the lower category i.e. the highest preference being to widows/wards of Defence personnel killed in action and the lowest preference being of wards of ex- servicemen personnel and serving personnel in receipt of Gallantry Awards. It is stated that of the three students aforesaid admitted by the respondent no.2 College, one is of a category lower than that to which the petitioner belongs; while the father of the petitioner was disabled in peace time with disability attributable to Armed Forces, the father of the student wrongly admitted by the respondent no.2 College was in receipt of Gallantry Award. It is contended that the wards of Defence personnel disabled in peace time with disability attributable to military service are in a higher category than the wards of ex-servicemen personnel and serving personnel who are in receipt of Gallantry Awards. It is thus stated that the petitioner inspite of her lower marks was entitled to be given preference over the student admitted by the respondent no.2 College."

9. In Sh. Sukhanshu Singh Vs. Delhi Technological University and Ors. [W.P.(C) No.5682/2010, decided on 08.10.2010], the challenge was that all categories were not

included by the DTU, though other institutions had specified all the seven categories for reservations. The learned Single Judge accepted this challenge giving the following rationale:

"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."

10. This judgment was taken in appeal and the Division Bench of this Court reversed the aforesaid judgment in LPA No.786/2010 decided on 12.11.2010. According to the Division Bench, there was no mandate in the communication addressed by the Ministry of Defence to the State Governments or Educational Institutions to fill up 5% quota from all the seven categories and when the University by conscious decision had excluded the last two categories, it was the decision taken by an Educational institution, which did not call for any interference. This reasoning is contained in the following passage of the judgment:

"In view of the above preceding analysis, we are of the considered opinion that there is no command or mandate to the present university to fill up 5% quota from all the seven categories. The university, by a conscious decision, has excluded the last two categories. Therefore, no fault can be found with the same. That apart, it is submitted by Mrs. Begum, that the academic council, after due deliberation and taking into consideration the hardship factors, has restricted it to the first five categories. Be that as it may, the learned Single Judge could not have treated the recommendations as a command and issued a writ of mandamus. Thus, we are unable to agree with the view taken by the learned Single Judge."

11. However, at the same time, the Division Bench called upon the academic council of the DTU to reconsider the matter by making the following observations:

"Before parting with the case, we would require the academic council to further deliberate on the aspect if the

left out categories can be considered for inclusion regard being had to the percentage fixed for defence personnel.

Quite apart from the above, the GNCT of Delhi will also explore the possibility of including the left out categories.

With the aforesaid observation, the appeal is allowed and the order passed by the learned Single Judge is set aside. There shall be no order as to costs."

12. After the aforesaid observations, matter was again considered by the Academic Council of the DTU which, after deliberation, decided to retain the five categories only and no to include remaining two categories. The relevant Minutes of the Meeting of the Academic Council, in this behalf, are as follows:

"The council deliberated in detail on the recommendations of the Ministry of Defence for inclusion of priorities 6 and 7 in the Defence Category admissions in the light of the decision of the Hon‟ble High Court Delhi in the LPA 786/2010 as placed at Annexure SA 3(i) from page 97 to

122. It was the considered view of the Council that the horizontal reservations of 5% seats for the Defence Category candidates has been kept primarily to grant reservations for those category of the wards of the defence personnel who have lost their lie/disabled in action, died/disabled in peace time with death attributable to Military service and for the wards of the Ex-servicemen and serving personnel/paramilitary/police personnel who are in receipt of gallantry awards. The basic purpose is to grant priority admission to those candidates who are the wards of defence families who have sacrificed their life/suffered disabilities/achieved gallantry awards for their distinguished services to the nation. The 5% reservation is horizontal in nature and these seats are taken out of the seats available for admission in the University for General and other reserved categories. As such the benefit of these reservations is to go to the candidates from the families of the Defence personnel who have suffered hardship or achieved gallantry awards. The Academic Council also took note of the position of reservations for Defence quota in institutions of repute such as IITs and NITs. It was

noted that in the IITs only the first two categories priorities out of the 7 suggested by the Ministry of Defence are being considered for admission under the Defence quota. The Academic Council, therefore, decided that the admissions to the 5% seats earmarked for defence quota be made from among the candidates from the following five categories in the order of the priorities given below:" [emphasis supplied]

13. From the aforesaid, it is clear that insofar as W.P.(C) No.4458/2012 is concerned, which relates to admission in DTU, that is squarely covered by the Division Bench judgment by this Court in LPA No.786 of 2010. Notwithstanding the above position, learned counsel for the petitioner submitted that the decision of the Academic Council is not in consonance with the directions contained by the Division Bench in LPA No.786/2010. According to the learned counsel, the mandate of the High Court the Academic Counsel was to further deliberate further deliberate on the aspect if the left out categories can be considered for inclusion regard being had to the percentage fixed for defence personnel. This aspect was not looked into. He also argued that the seats reserved for defence personnel remained vacant in each year and thus get transferred to other categories. Therefore, the decision of the Academic Council is highly illegal, unreasonable and arbitrary. He also submitted that the Division Bench in LPA 786/2010 proceeded on the premise that there was no command or mandate to the University to fill up 5% quota from all the seven categories, which view was erroneous.

14. Reference at this stage may be made to the provisions of Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee

and Other Measures to Ensure Equity and Excellence) Act, 2007, particularly, to Section 12 thereof, which deals with „Allocation and Reservation Seats‟ and reads as under:

"12. (1) In every institution, except the minority institution

(a) subject to the provisions of this Act, ten percent of the total seats in an unaided institution shall be allocated as management seats;

(b) eighty five percent of the total seats, except the management seats, shall be allocated for Delhi students and the remaining fifteen percent seats for the outside Delhi students or such other allocation as the Government may by notification in the official Gazette, direct;

(c) supernumerary seats for non-resident Indians and other category shall be as may be prescribed.

(2) In the seats mentioned in sub-section (1), an institution shall reserve-

(a) seventeen percent seats for the candidates belonging to the Scheduled Castes category, one percent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category including Other Backward Classes as may be prescribed;

(b) for seats not mentioned as allocated for Delhi students in sub-section(1), fifteen percent seats for candidates belonging to the Scheduled Castes category, seven and a half percent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category as may be prescribed.

(c) subject to clause (a) and clause (b) above, three percent seats for persons with disabilities as provided in the Persons with Disabilities (Equal Opportunities, Protection of Rights and

full Participation) Act, 1955 (1 of 1996), and, such percentage of seats for the wards of defence personnel and any other category, as may be prescribed."

[emphasis supplied]

15. The Government has also framed Rules under the Aforesaid Act, which are called „Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence) Rules, 2007. Rule 8(2)(b) of the said Rules reads as under:

"(b) Wards of Defence Personnel. - Five percent of the seats under each programme of study shall be reserved for widows/wards of personnel of Armed Forces in the order prescribed by the Rajya Sainik Board from time to time."

16. It appeared that in view of the aforesaid statutory provision, there was no discretion with a particular institution to remove any categories as inasmuch as the categories prescribed by Rajya Sainik Board from time to time were to be incorporated for the purposes of reservation.

17. We find from the orders of the Division Bench in LPA 786/2010 that these provisions are not taken note of, which would have direct bearing on the matter. We are, therefore, of the opinion that the matter needs to be considered by a Larger Bench. Since W.P.(C) No.4458/2012 is refered to the Full Bench, the other writ petition, viz., W.P.(C) No.3943/2012, which is tagged with this writ petition may also be listed before the Full Bench for decision.

18. Accordingly, we direct that the Registry shall place the matter before the Hon‟ble the ACJ on administrative side for constituting Larger Bench.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE AUGUST 24, 2012 pmc