Ms. Jyoti Yadav & Anr. vs Gnctd And Anr
2012 Latest Caselaw 687 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 1st February, 2012
+                          W.P.(C) 7093/2010

%       MS. JYOTI YADAV & ANR.                    ..... Petitioners
                     Through: Ms. Deepali Gupta, Adv.

                                 Versus
        GNCTD AND ANR.                                  ..... Respondents
                    Through:         Mr. A.K. Singh, Adv. for Ms. Sujata
                                     Kashyap, Adv. for R-1.
                                     Ms. Latika Chaudhary, Adv. for
                                     Mrs. Avnish Ahlawat, Adv. for R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                               JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The two petitioners have filed this writ petition impugning the

selection process, for shortlisting students for Elementary Teacher

Education (ETE) Diploma course for the session 2010-12, as prescribed in

the prospectus published by the respondent No.2 State Council of

Educational Research & Training (SCERT), particularly Clause 5 of

Chapter-IV and Clause 6 of Chapter-XII thereof; the petitioners

axiomatically also seek quashing of the selection and direction for

inclusion of their own names in the shortlist and admission to the course.

2. Though, the prospectus aforesaid was made available and the

applications were to be submitted from 28.05.2010 to 08.06.2010; the

applications were scrutinized and rejected on 18.06.2010; the candidates

were to report on 21 st or 22nd June, 2010; the first list of admission was

published on 25.06.2010, the second list on 07.07.2010 and the waitlist on

17.07.2010; admissions made from 20.07.2010 to 23.07.2010 and the

academic session commenced from 26.07.2010, this writ petition was filed

only in or about October, 2010 and came up before the Court first on

25.10.2010 when notice thereof was issued. Counter affidavit was filed by

the respondents. No rejoinder has been filed by the petitioners inspite of

opportunity. The counsels have been heard.

3. The two petitioners claim to be belonging to OBC category and

applied for admission in the said category for which 15% reservation was

prescribed. The challenge by the petitioners in this petition to the

admission process is predicated on the fact that they had 78% and 76%

marks respectively in their Senior Secondary School Examination and

which marks were the primary criterion for shortlisting, while they were

not admitted, applicants with lower marks in the Senior Secondary School

Examination were admitted to unreserved category.

4. Clause 5 of Chapter-IV and Clause 6 of Chapter-XII of the

prospectus for admission for the year 2010-12 were as under:

"5. Column 5. Candidate is required to select only one category, best suitable to him / her in one application form and fill up separate application form for each category. Write the abbreviation of category and the applicable code of the category in the boxes. The abbreviation and code number specified to different categories are given in CHAPTER-III (4) Reservation Provision. Candidate is also required to darken only one corresponding circle for his / her category. If a candidate belongs to more than one category may fill-up separate application form for each category belongs.

The candidate who leaves category column blank, shall be treated under general category. No request for change in

category will be entertained.

An eligible candidate of a particular category will be considered for admission in that category only, in order of merit and subject to availability of vacant seat."

"6. One candidate shall submit separate application form for one admission process (ETE course of Govt. DIETs or ETE course of Self Financing Private Institute or ECCE course of SFS Private Institute). However, if a candidate is willing to apply for all the 3 admission processes, he / she has to fill up three separate application forms for each admission process."

5. The petitioners admittedly filled up only one form claiming

admission in the OBC category. They did not fill up a separate application

form for admission in the unreserved category and hence were not

considered for admission in the unreserved category where students with

lower marks than the petitioners were admitted; in the OBC category, the

last student admitted had marks higher than the petitioners.

6. The contention of the petitioners is that in the prospectus for

admission for the previous academic year 2009-11, there was no such

requirement for filling up of separate application forms for being

considered in separate categories; on the contrary, as per the prospectus of

the previous year, a reserved category candidate was to be considered for

admission under the general merit if qualifies for the same, in addition to

the category opted by the candidate and a reserved category candidate

selected under general merit was to be counted as general category

candidate, though for allotment of institute, the reserved category standing

in general merit was to be given priority over the candidate having lower

merit order of the respective reserved category. It is the contention of the

petitioners that there was no basis whatsoever for the respondent No.2

SCERT to change the procedure for selection by requiring the applicants to

apply separately for unreserved and reserved category. It is contended that

the same has resulted in applicants from the reserved category though

higher in the order of merit losing out to the candidates belonging to the

unreserved category with lower merit. It is yet further contended that the

petitioners were not aware of the requirement to fill separate forms and the

Clauses aforesaid in the prospectus inadvertently escaped their attention

since the advertisement published in the newspapers only required filling

up of separate application forms for District Institutes of Education and

Training (DIETs), for ETE recognized private institutes and for ECCE

recognized private institutes and did not specify that separate applications

had to be filled up for being considered under separate categories. It is

argued that the procedure adopted by the respondents has resulted in

reverse discrimination against the petitioners. As far as the delay in filing

of this petition is concerned, the petitioners claim that they had earlier filed

W.P.(C) No.5536/2010 which was dismissed vide judgment dated

16.08.2010; that they had preferred intra court appeal being LPA

No.643/2010 thereagainst but which was withdrawn with liberty to

challenge the validity of the Clauses aforesaid in the prospectus and

whereafter the present writ petition has been filed. The petitioners in the

writ petition itself rely on Indra Sawhney Vs. UOI 1992 Supp. (3) SCC

217, UOI Vs. Virpal Singh Chauhan (1995) 6 SCC 684, Ritesh R. Sah

Vs. Dr. Y.L. Yamul (1996) 3 SCC 253 and UOI Vs. Satya Prakash (2006)

4 SCC 500. They also contend that though the seats to be reserved for the

OBC category are to be 27% as per the Policy of the government and also

as per the Central Educational Institutions (Reservation in Admission) Act,

2006 but the respondent No.2 SCERT is reserving only 15% of the seats

for OBCs.

7. The respondent No.2 SCERT in its counter affidavit has pleaded,

that the petitioners having participated in the selection procedure, upon

being unsuccessful are not entitled to challenge the same and reliance in

this regard is placed on Vijendra Kumar Verma Vs. Public Service

Commission, Uttarakhand (2011) 1 SCC 150; that SCERT is an

autonomous body of the Government of NCT of Delhi (GNCTD)

established in 1988 and is the nodal agency recognized by National

Council of Teacher Education (NCTE) for admission, curriculum

construction, course conduct, guidance, examination and certification of

the pre-service training programme for elementary school teachers; that

SCERT runs a two year diploma in ETE which is offered in nine DIETs

and eighteen recognized private institutes in Delhi; that as per the

provisions of the National Council for Teacher Education Act, 1993, the

State Government is empowered to frame its own policy for reservation for

admission of candidates in Elementary Education course; that the

prospectus under challenge is as per the provisions of NCTE Act and

approved by the GNCTD; that reservation procedure incorporated in the

said prospectus is as per the reservation policy of the GNCTD; that if a

candidate wanted to be considered in more than one category, he / she was

required to fill up separate form for each category; that the said procedure

was prescribed to ensure that no seat in any category remains unutilized;

that reservation for OBC category was kept at 15% to ensure that the total

reservation did not exceed 50%; that the petitioners have themselves to

blame for not reading the prospectus and not filling up separate form for

consideration in the unreserved category.

8. The counsel for the petitioners during the hearing also referred to

judgment of the Division Bench of this Court in Tej Pal Yadav Vs. UOI

174 (2010) DLT 510 and to UOI Vs. Ramesh Ram AIR 2010 SC 2691.

9. At the outset it may be noted that the petitioners, neither at the time

of filing of this writ petition (by that time the academic session to which

admission was claimed was more than three months through) nor now

could / can be granted the relief of admission to the course which

commenced on 26.07.2010 and must be now nearing completion and the

writ petition qua the said relief is now infructuous. We have recently in

judgment dated 20.12.2011 in LPA No.1069/2011 titled Rajat Goel Vs.

Ministry of Human Resource and Development (Government of India)

held that in such cases, even if the petitioners are found to have been

wrongfully denied admission, no direction for admission in the next

academic year can be issued since the same would be to the prejudice of

the aspirants for admission in the next academic session, the seats available

for admission for whom will stand so reduced. It was held that to succeed

in the race in the next year, one is required to participate therein and cannot

succeed on the basis of the result of the previous year.

10. However, since challenge has been made to the procedure for

admission as well as to the reservation policy of the respondents and which

is likely to be repeated year after year, need is felt to adjudicate on the said

aspect also rather than merely dismiss the petition as infructuous.

11. As far as the legal position is concerned, neither has any contest

been raised by the respondents nor is there any scope for ambiguity. The

candidates selected in General (unreserved) category on their own merit,

even if belonging to the reserved category cannot be counted in the

reserved category so as to reduce the number of seats prescribed for the

reserved category. Reserved category candidates can compete for

unreserved category seats. An unreserved seat is available to all the

candidates but a reserved seat is confined for candidates of that particular

category. In an open competition, while the general category candidates

are entitled to compete only against unreserved seats but a reserved

category candidate in addition to his right to be considered against the

reserved seat is also entitled to be considered against unreserved seats. His

option in the application, for consideration of his candidature for a

reserved seat is only a declaration of his intention to be considered against

reserved seats without depriving himself of the right to be considered

against an unreserved seat. Articles 15 and 16 of the Constitution of India

confer certain benefits on the persons belonging to these categories but

which benefits are not in substitution of any other right which may

otherwise be available to them as citizens of the country. Members

belonging to the reserved category cannot be asked to occupy only the

reserved seats; they are free to occupy any seat including unreserved seats;

however the requirement of law is that while claiming selection against

unreserved seats, they should prove their merit like any other citizen who

is not entitled to the benefit of reservation.

12. The respondent No.2 SCERT in its prospectus under challenge also

did not seek to confine the reserved category candidates to the reserved

seats only. The only difference was that to be entitled to be considered for

the unreserved seats they were required to fill up a separate application

form. What thus falls for consideration is, whether the requirement of

filling up of a separate application form can be said to be contrary to the

law as recorded above.

13. We find that W.P.(C) No.5536/2010 earlier preferred by the

petitioners (and intra court appeal whereagainst was withdrawn as

aforesaid) was dismissed relying on UOI Vs. Dalbir Singh AIR 2009 SC

2438 and the judgment of the Division Bench of this Court in Anand Lal

Yadav Vs. NCT of Delhi MANU/DE/1758/2002 laying down that having

opted to have his/her case considered only under the OBC category, a

candidate thereafter cannot claim that his/her case requires to be

considered in the general merit, only because he/she had secured better

percentage of marks than the last selected candidate in the general category

list and that candidates cannot be permitted to change the category under

which they originally applied after the last date fixed for receipt of

applications.

14. It thus cannot ex facie be said that the action of the respondent

SCERT in requiring the candidates to fill up separate forms for

consideration in separate categories is bad. However having observed so,

we are still constrained to observe that the law as enunciated under various

dicta and summed up in para 11 above does appear to sway in favour of a

candidate applying in the reserved category not forfeiting his right for

consideration in the unreserved category. A better course for the

respondents to follow in future thus appears to be in not requiring separate

applications to be filled up for the reserved and unreserved category even

if such procedure were to serve the administrative convenience of the

respondents better. Reservation is a benefit in addition to the already

existing right including the Fundamental Right of equality. If any scheme

of reservation or the procedure evolved with a view to give effect to such

scheme is made to depend upon the condition of truncating the

fundamental or any right of an individual, such scheme of reservation

would be contrary to the constitutional provisions and the law and to the

extent it curtails fundamental right or any other right of a person belonging

to such category would be liable to be declared illegal. The Apex Court in

Jitendra Kumar Singh Vs. State of U.P. (2010) 3 SCC 119 also held that a

reserved category candidate cannot be deprived of his right to be

considered against general vacancy on the basis of merit. The practice of

preparing category wise list was also deprecated in para 43 of A.P. Public

Service Commission Vs. Baloji Badhavath (2009) 5 SCC 1 as being

detrimental to the interest of meritorious candidates belonging to the

reserved category.

15. The challenge thus by the petitioners to the Clauses aforesaid of the

prospectus published by the respondents for admission to the academic

year 2010-12 succeeds.

16. As far as the second aspect of the challenge, of the reservation for

the OBC category being required to be 27% instead of 15% as prevalent is

concerned, the petitioners rely on the Office Memorandum

No.36012/22/93-Estt. (SCT) dated 08.09.1993 of the Ministry of

Personnel, Public Grievances & Pensions (Department of Personnel &

Training), Government of India. However, the respondents are Institutions

of the GNCTD and not of the Central Government. It is the categorical

stand of the respondents that they are not bound by the Policy of the

Government of India of reservation for OBC category to the extent of 27%.

Similarly, Central Educational Institutions (Reservation in Admission)

Act, 2006 also pertains to the Institutions of the Central Government only

and would have no application to the respondents. The petitioners have

thus been unable to make out a case for issuance of any directions to the

respondents to reserve 27% seats for the OBC category.

17. The petition is therefore partly allowed. The respondent No.2

SCERT is directed to, in future, consider the candidates applying for

admission in the reserved categories in the unreserved category also, on the

basis of merit without requiring them to fill up and irrespective of whether

they have filled up or not, a separate application form. It is further

declared that the reserved category candidates admitted to the unreserved

category on the basis of merit shall not be counted in the reserved category

so as to reduce the number of seats prescribed for the reserved category.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE FEBRUARY 01, 2012 'gsr'