Vijay Kumar Thalor vs University Of Delhi & Ors
2017 Latest Caselaw 1042 Del

                     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Judgment reserved on: February 20, 2017
                                                  Judgment delivered on: February 23, 2017

+       W.P.(C) 9669/2016, CM No. 38706/2016
        VIJAY KUMAR THALOR                                                ..... Petitioner
                                       Through:    Mr. L.R. Khatana and Mr. Vijay Kasana,
                                                   Advs.
                              versus


        UNIVERSITY OF DELHI & ORS                                         ..... Respondents
                                       Through:    Mr. Amit Bansal and Ms. Seema Dolo, Advs.



CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO

                                           JUDGMENT

V. KAMESWAR RAO, J

1. The present petition has been filed by the petitioner with the following prayers:-

"It is therefore, most respectfully, prayed that this Hon'ble Court may kindly be pleased to:

a) Issue a Writ in the nature of MANDAMUS and/or any other appropriate Writ/Order/Direction of like nature directing the respondents 1 and 2 to grant admission to the petitioner in the 1st year of M. Phil (Geography) in the 2016-2017 session

b) Issue a Writ in the nature of MANDAMUS and/or any other appropriate Writ/Order/Direction of like nature thereby declaring the admission of respondent

No.3 in the 1st year of M. Phil (Geography) in the 2016-2017 session to be null and void being in violation of law of the country and rules governing the admission of the candidates and set aside the same.

c) Pass any other order(s) as this Hon'ble Court may deem fit, in the facts and circumstances of the case, in the interest of justice."

2. It is the case of the petitioner and also contended by Mr. L.R. Khatana that as per the

Bulletin/Prospectus inviting applications for admissions in different branches of Ph.D. and

M. Phil Courses, the petitioner had applied for M. Phil (Geography). There were total 14

seats in the M. Phil (Geography) out of which 7 were for Unreserved Category, 4 for OBC

Category, 2 for SC Category and remaining 1 for ST Category. The petitioner had appeared

in the written examination and had obtained 49.50 marks and had succeeded in obtaining

16th position in combined ranking and 7th position under OBC Category. According to him,

against 7 seats in the Unreserved Category, 2 OBC candidates got admission in the said

Category and therefore candidates at 3rd to 6th position in OBC category were offered

admission against 4 reserved seats under OBC category. He states that the petitioner who

had secured 7th rank in the OBC Category missed his chance of admission by one rank. He

would contend that the petitioner's chance of getting admission in the course were upturned

after one candidate namely Leiyaton C who secured combined merit of 6 with 53.80 marks

and who got admission in Unreserved Category, did not take admission. He would also

state, as per Rule 4.4 contained in the admission Bulletin/Prospectus, the admission in the

Unreserved Category shall be made in the order of merit and the candidate who was next

best rank in the combined category rank i.e 8 th rank in the present case shall be offered the

seat vacated by Leiyaton C and the said candidate being, Sashi Sagolsem No.1 candidate in

OBC category. According to him, this would have entailed the candidate below Sashi

Sagolsem in the OBC category to move one place up and occupy the first vacancy of OBC

category resulting in a vacancy at the 4th place, to be filled by the petitioner being at 7th

position in the OBC category.

3. It is his case, that was not done. Rather, in terms of letter dated August 17, 2016, the

seat has been offered to one Sonam Bhadouria who is at combined rank No. 11 and belongs

to General Category. He has drawn my attention to clause 2.3.1 to contend that the

Bulletin/Prospectus clearly stipulates that reservation of Scheduled Castes, Scheduled

Tribes and Other Backward Classes to the prescribed extent was to apply in compliance

with the Rules notified by the University. He has also drawn my attention to the

representation of the petitioner dated August 17, 2016 and the letter dated September 23,

2016 written by the Deputy Registrar (Academics) to the Head of Department of

Geography, University of Delhi wherein it has been stated that as per the guidelines in

Bulletin of Information, the single vacancy arising under the unreserved category should

have been filled by the next person in the merit list i.e. 8th rank in the merit list who is

otherwise an OBC Category candidate. He would rely on the judgment of the Supreme

Court reported as (1996) 3 SCC 253 Ritesh R. Sah v. Dr. Y.L. Yamul and others in support

of his contention.

4. On the other hand, Mr. Amit Bansal, learned counsel appearing for the respondents 1

and 2 would reiterate the stand taken by the respondents in their short affidavit justifying,

the filling up of the vacancy arisen, by offering the same to Sonam Bhadouria-respondent

No.3 as the seat vacated was of General Category and Sonam Bhadouria belongs to General

Category and high in the merit than the petitioner herein. He also states that the petitioner

can have no claim for the said seat, being lower in the combined merit, as compared to

Sonam Bhadouria. He would justify the action and would rely upon the judgment of the

Supreme Court reported as (1998) 2 SCC 402 Rajiv Mittal v. Maharshi Dayanand

University and Ors.

5. Having heard the learned counsel for the parties, the only issue arises for

consideration is whether the seat vacated by Leiyaton C need to be filled by a General

Category candidate, on the basis of the combined merit or by a candidate who was next in

the merit Sashi Sagolsem, even though in the category of OBC. To answer the said issue, it

is necessary for the petitioner to contend that Sashi Sagolsem has not sought the benefit as

an OBC candidate during the admission process. Mr. Khatana concedes, no such averments

have been made in the writ petition. Such averments would be relevant. If Sashi Sagolsem

has taken the benefit as an OBC category candidate during the admission process, she

cannot be given admission in General Category. This I say so, in view of the

Bulletin/Prospectus under the heading "Procedure for Admission" stipulates at page 107

vide clause 4 the eligibility criteria for admission is minimum 55% marks in Master's

Degree/M. Phil/ M. Tech./ LL.M./M.D./M.S Degree in the same or allied subject from a

recognized University with 5% relaxation for OBC/SC/ST and Persons with Disability. It is

not known whether she became eligible on the strength of securing minimum 55 marks or

by getting relaxation of 5% as an OBC Category candidate.

6. No doubt, during the arguments Mr. Khatana has, on instructions from the petitioner,

stated that Sashi Sagolsem has not availed the benefit as an OBC Category candidate during

the admission process, this aspect could not be confirmed by Mr. Amit Bansal, learned

counsel for the respondent. In any case, I agree with the submission made by Mr. Bansal

that Sashi Sagolsem has not represented to the respondents 1 and 2 to allot her a seat in the

General Category, instead of OBC Category on Leiyaton C vacating her seat. This aspect

would be relevant, inasmuch as if Sashi Sagolsem continues to hold the seat against the

OBC category, she may prefer to continue to hold the seat as an OBC Category candidate to

enjoy the benefits, if any available to an OBC Category candidate. In this regard, I may

refer to the judgment relied upon by Mr. Bansal in Rajiv Mittal case (supra), wherein the

Supreme Court has set aside the judgment of the High Court by holding that one Sunil

Yadav having failed to secure admission to a seat in the open category in the first

counselling but had secured admission to the reserved seat in the same counselling, the

question of his being shifted or being regarded as a candidate to the open category seat

which had become available only after he had secured admission did not and could not arise

and, consequently, the appellant Rajiv Mittal was rightly granted admission to the general

category, is appealing as the said case also pertains to admission. The judgment relied

upon by Mr. Khatana would not help the case of the petitioner as there is no dispute on the

ratio laid down by the Court in the said case, inasmuch as, that a student who is entitled to

be admitted on the basis of merit, though belonging to a Reserved Category cannot be

considered to be admitted against seats reserved for Reserved Category. In fact, I note the

respondents 1 and 2 have given effect to the settled law by the Supreme Court in that regard

as they have given admission to Reserved Category candidates i.e. belonging to OBC, SC

and ST against General Category vacancies on the basis of their merit.

7. That apart, the plea of Mr. Bansal that the course is for two years and an examination

has already been held in M. Phil Course and this Court would not like to give a direction,

which would unsettle the settled position is also a factor, which need to be considered. I

find the submission appealing.

8. Taking into account, the totality of the facts, this Court is of the view that the prayers

as made by the petitioner, cannot be granted. The writ petition is dismissed. No costs.

CM No. 38706/2016

Dismissed as infructuous.

V. KAMESWAR RAO, J FEBRUARY 23, 2017 ak