Medhavi Krishna vs University Of Delhi And Ors
2016 Latest Caselaw 7378 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Date of decision: 14th December, 2016

+       W.P.(C) 8232/2016, CM Nos. 34120/2016 & 44144/2016

        MEDHAVI KRISHNA                                        ..... Petitioner

                                 Through:   Mr. Adarsh Kumar Tiwari, Adv.

                        versus

        UNIVERSITY OF DELHI AND ORS

                                                        ..... Respondents
                                 Through:   Mr. Mohinder J.S. Rupal and
                                            Ms. Simran Jeet, Advs.

CORAM:-
HON'BLE MR JUSTICE V. KAMESWAR RAO

                                    JUDGMENT

V. KAMESWAR RAO, J. (ORAL)

1. The present petition has been filed by the petitioner with the

following prayers:-

a) to issue appropriate writ of mandamus/certiorari or any other writ/order directing the respondents to grant admission to the petitioner under PWD category in the Ph.D programme of Department of Buddhist Studies University of Delhi; and/or

b) to pass any other appropriate order(s) or direction(s) in favour of the petitioners which this Hon'ble Court may deem just and proper in the facts and circumstances of the case, in the interest of justice."

2. It is contended by the learned counsel for the petitioner that the

petitioner is a physically challenged person and the disability has been

assessed at 77% in both his lower limbs. On May 13, 2016 the

respondents have started online registration for the admission to the

M.Phil/Ph.D programmes for various departments and last date was May

31, 2016. The petitioner having fulfilled the minimum eligibility criteria

for admission got himself successfully registered during the said period

for pursuing Ph.D programme in Department of Buddist Studies, Faculty

of Arts.

3. It is his case that the total number of seats available for the Ph.D

programme in this Department are 14. On June 23, 2016, he appeared in

a written examination conducted by the University. He secured 61 marks

in terms of the result published by the respondents on July 12, 2016. It is

averred that 47 candidates were declared qualified in the result out of

which 17 candidates belonged to General category, 9 candidates belonged

to OBC category, 16 candidates belonged to SC category, 4 candidates

belonged to ST category. It is his case, that he was the only candidate

who qualified the written examination in the PWD category. As he was

successful in the written examination, which was qualifying in nature, he

was called for interview on July 27, 2016. The respondents declared the

final merit list of successful candidates on August 30, 2016. A total of 20

candidates, 12 under Category-I and 8 under Category-II were declared

successful under various categories of reservation. However, no

admission was granted under PWD category, for which the petitioner was

the only contender. Being aggrieved by his non-inclusion under the PWD

category, he, on August 30, 2016 preferred representations to the Vice-

Chancellor, OSD Admissions and Research Council, University of Delhi.

He made representations to the Dean, Faculty of Arts and Head of

Department of (Buddhist Studies) on August 31, 2016 and September 1,

2016 respectively. Finding, no response, he preferred a representation to

the Chief Commissioner of Persons with Disabilities on September 5,

2016. However, till the filing of the petition, no relief was granted to

him.

4. It is the submission of the learned counsel for the petitioner that the

selection having been effected through the process of written

examination, presentation and interview, for which no cut off marks were

fixed/prescribed in the bulletin of information, the stand of the

respondents that minimum 70 marks were required to be secured is

unsustainable and the Rules of the selection could not have been changed,

once the selection process has started. He would rely upon the judgment

of the Supreme Court in the case of K. Manjusree vs. State of A.P 2008 3

SCC 512.

5. It is also his submission that the respondents could not have

frustrated the provisions of Section 39 of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act,

1995 (for short 'Act of 1995') by advancing the plea that cut off marks

have been fixed by the Department Research Committee (for short

'Selection Committee'). He would rely upon the judgment of the

Supreme Court in the case of E.P.Royappa v. State of Tamilnadu and

Anr 1972 SCR (2) 348. He also states, that the selection should have

been, on the basis of the merit to be prepared on overall marks in each

category of reservation. He also states, the petitioner being the lone

PWD candidate, should have been granted admission.

6. Learned counsel for the petitioner would also submit that the stand

of the respondents that the petitioner did not have the aptitude and

temperament for research based on the marks given for presentation and

for interview is untenable, as one candidate under the ST category namely

Tashi Tundup, who also got similar marks i.e one mark for presentation

and one mark for interview, was selected under that category. He pleads

discrimination. He also rely on the case of Deepika Deshwal, who got 63

marks in the written examination, was granted admission in the General

Category.

7. On the other hand, Mr. Rupal, learned counsel appearing for the

respondents would concede to the fact that the total number of seats were

14. 47 candidates were declared qualified for interview. The interview

was held on July 27, 2016 and the candidates were assessed by the

Selection Committee. For Category-I, under which the petitioner

appeared, 100 marks were kept for the entrance test, while for the

interview, there were 50 marks. For interview, the candidates were

assessed on the following parameters:-

(i)     Topic presentation - 25 marks

(ii)    Interview - 25 marks.

8. It is his submission that the Selection Committee laid down the

criteria that candidates, who have scored minimum 95 marks under the

General Category, 88 marks under the OBC Category, 86 marks under SC

category, 85 marks under ST category and 70 marks under PWD category

will be granted admission. He states that the petitioner secured 61 marks

in the entrance examination but in the interview, the petitioner could

secure only 2 marks in total i.e 1 mark for topic presentation and 1 mark

for personal interview. As, the petitioner in aggregate secured 63 marks,

he could not be granted admission in the Ph.D programme. He states that

the Committee resolved that there was no suitable candidate for

admission under PWD category. He has drawn my attention to the

minutes of the Selection Committee dated July 27, 2016, so also the

assessment sheet for admission in the Ph.D course under Category-I. It is

also his submission that the Ph.D programme is entirely a research based

programme. The candidates are therefore assessed at the time of

interview as to whether they possessed research aptitude and

temperament, which is on the basis of their topic presentation and

personal interview. He states, that the petitioner was the sole candidate

under the PWD category, who applied for admission to Ph.D programme.

Though, the petitioner has succeeded to clear the entrance test but the

petitioner was required to cross the benchmark of 70 marks, for securing

admission.

9. Mr. Rupal states, the comparison drawn by the learned counsel for

the petitioner between him and Tashi Tundup is totally unsustainable,

inasmuch as the petitioner, who otherwise belong to unreserved category

had got 61 marks while the ST candidate, who got admission had 87

marks. He states that the petitioner has not challenged the selection

criteria at all. He also states that the judgment of K. Manjusree (supra),

as relied upon by the learned counsel for the petitioner is not applicable to

the facts of this case, moreover, the matter has been referred to a larger

Bench. In the last, he states that the petitioner shall be at liberty to apply

afresh as there are further vacancies in the Ph.D programme. He, when

the matter was listed on December 9, 2016, had stated that, on the basis of

marks, secured by the petitioner, he has been called for interview, against

the seats available and a communication in that regard has been sent to

the petitioner. The petitioner, who was present in the Court, has denied

receiving any communication.

10. Having heard the learned counsel for the parties, there is no dispute

that in terms of the bulletin of information it has been stated

supernumerary seats shall be available for persons with disability. There

is also no dispute that the case of the petitioner was considered for Ph.D

programme under the PWD category. The question, which arises for

consideration is whether the cut off marks of 70 prescribed, by the

Selection Committee, is justified.

11. I have perused the minutes of the Selection Committee at running

pages 168-169. From the perusal of the same, it appears that the cut off

marks were prescribed not before the commencement of the interview but

after the interviews were held. This I say so for the reason that the cut off

marks decided were the cumulative of the marks in entrance examination

and interview marks. Assuming the power exist with the Selection

Committee; in the case in hand the fixing of 70 marks as cut off for

candidate with PWD is without any basis/logic, when there are no cut off

marks prescribed for written examination (as it is qualifying) and also for

presentation and interview, more so, when the petitioner is the only PWD

candidate in the fray and a candidate Tashi Tundup also secured similar

marks, in presentation and interview. The contention of Mr.Rupal, that

Tashi Tundup had secured 87 marks whereas, petitioner only 61 marks, is

also not appealing, for the following reasons:-

(i) The written examination was qualifying, which the petitioner

qualified.

(ii) Candidates with 63 marks in written examination in General Category

were given admission i.e Deepika Deshwal and Prerna Bhardwaj.

(iii) The marks less than 70 in written examination and one mark each in

presentation and interview are not a disqualification for admission.

Hence, the plea of the respondents that the petitioner had not met the cut

off marks of 70, is unsustainable.

12. That apart, the said plea in the facts of this case, cannot be raised to

frustrate the very scheme of the Act (which is a beneficial legislation),

more specifically Section 33/39 of the Act of 1995. Even though, learned

counsel for the petitioner has relied upon the judgment of the Supreme

Court in the case of K. Manjusree (supra), the same may not be

applicable in view of my conclusion above.

13. Mr. Rupal has relied upon the judgments in the cases reported as

(1980) 4 SCC 480 Jawaharlal Nehru University v. B.S. Narwal; (1992)

2 SCC 220 Bhushan Uttam Khare v. Dean, B.J. Medical College and

others; (2005) 5 SCC 420 Prof. Yashpal and another v. State of

Chhattisgarh and others; 1992 Supp (2) SCC 481 National Institute of

Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman and

others, to contend that the Courts should not interfere with the decisions

taken by the educational authorities, which need to maintain high

standards of scholarly achievements; when selection is made by experts

of high status and eminence the Courts would not normally interfere with

its decision. There is no dispute on the propositions for which Mr. Rupal

has relied on the aforesaid judgments. My above conclusion is based on

the facts, which arose for consideration in the present case, which

according to me requires interference by this Court as the action of the

respondents is arbitrary.

14. Now the question would arise, what relief the petitioner is entitled

to. It is the case of the respondents that seats are still available in the

University for pursuing the Ph.D course, and admission/selection process

is still on. If that be so, the petitioner is entitled to the relief as prayed

for. The respondents are directed to grant admission to the petitioner

under the PWD category in the Ph.D. programme of Department of

Buddhist Studies, University of Delhi. In the given facts, the petitioner is

entitled to cost, which is quantified at Rs.10,000/- to be paid by the

respondents to the petitioner.

CM Nos. 34120/2016 & 44144/2016

Dismissed as infructuous.

V. KAMESWAR RAO, J DECEMBER 14, 2016/AK