University Of Delhi & Anr vs Govind Kr Verma & Anr
2017 Latest Caselaw 3362 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    LPA No.269/2017 & CM Nos.14019/2017 & 14021/2017

+                                          Date of Decision: 18th July, 2017

     UNIVERSITY OF DELHI & ANR            ..... Appellants
              Through: Mr.Mohinder J.S. Rupal & Mr.Rakesh
                       Tanwar, Adv.

                            versus


     GOVIND KR VERMA & ANR                        ..... Respondents

Through: Nemo.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J (ORAL)

CM Nos.14021/2017 (for condonation of delay)

1. This application has been filed by the appellants seeking

condonation of 78 days delay in filing the present appeal. For

the reasons stated, the same is allowed. Delay in filing the

appeal is, hereby, condoned.

This application is disposed of.

LPA No.269/2017 & CM No.14019/2017

2. The present Letters Patent Appeal has been filed by the

appellants to assail the judgment dated 15th December, 2016

rendered by the learned Single Judge in WP(C) No.10166/2016.

The learned Single Judge has disposed of the said writ petition

with a direction to the appellants herein to reserve one extra seat

for OBC candidates belonging to the PWD (Persons with

Disabilities) category over and above the vacancies to be

sanctioned in the next academic year i.e. 2017-2018, with a

further direction to grant admission to one of the petitioners

who have been found to be high in merit in the examination

held for admission in the previous academic year i.e. 2016-

2017.

3. The respondents have been put to notice and they have

also appeared through counsel. However, when the case is

called out for hearing today, none has appeared on behalf of the

respondents.

4. We have heard learned counsel for the appellants and

proceed to judgment.

5. The respondents herein had preferred the aforesaid writ

petition. They are both physically challenged and were

aggrieved by the fact that they were not called for counselling

for admission to MD/MS Unani Medicines Course for the

academic years 2016-19.

6. The grievance of the respondents arose in the following

background. The appellants issued a brochure on 20th July,

2016 disclosing that 66 seats were advertised in respect of the

aforesaid course. We may at this stage itself observe that

though the brochure speaks about 66 seats, as a matter of fact,

62 seats were sanctioned by the Department of AYUSH,

Government of India for the said course. The learned Single

Judge has proceeded on the basis of sanction and existence of

62 seats, and we also proceed on the same basis. As per Clause

VII (B) of the brochure, three per cent seats were

compartmentally reserved, on horizontal basis, for candidates

belonging to PWD category, from within all the categories viz.

General, SC, ST & OBC. The entrance examination was held

and the results were announced. However, the said result was

withdrawn by the appellants. The final result was, thereafter,

published on 17th October, 2016. The list of selected candidates

did not include any candidate who belonged to the PWD

category. The respondents represented to the Chief

Commissioner of Persons with Disabilities and to the Vice-

Chancellor of the Delhi University. The Chief Commissioner of

Persons with Disabilities passed an order advising the

appellants to provide their comments within twenty days and

also to confirm whether two seats for persons with disabilities

had been kept in abeyance. Since the respondents were still

aggrieved, they preferred the writ.

7. The appellants filed a short counter affidavit before the

learned Single Judge disclosing that 62 seats were sanctioned

by the Department of Ayush, Government of India for the said

course. As per the norms, 50% i.e. 31 seats were meant from

Delhi University quota, and the remaining 50% i.e. 31 seats

were meant for All India quota. The respondents were

concerned with admission under the 50% All India quota.

According to the appellants, in the All India Quota, out of 31

seats, 8 seats were reserved for OBC category (for complying

with reservation of 27%). The appellants stated that in the

current academic session (i.e. 2016) 3% seats in any of the

category i.e. General, SC, ST & OBC could not be carved out

compartmentally, and on horizontal basis for the PWD

category.

8. The learned Single Judge rejected the submission of the

appellants, by holding that 3% of 31 seats comes to 0.93 seats

which, upon rounding off, translates to one seat. The learned

Single Judge, therefore, held that one seat ought to have been

reserved for the PWD category candidates. He also placed

reliance on the decision of the Supreme Court in the State of

U.P. & Anr. Vs. Pawan Kumar Tiwari & Ors. passed in Civil

Writ No.4079/2005 decided on 4th January, 2005, wherein the

Supreme Court relied on the rule of rounding off, based on

logic and common sense. The learned Single Judge then

proceeded to hold that out of eight seats reserved for the OBC

category, one seat ought to have been reserved for persons with

disabilities. Since the last cut-off date for admission i.e. 30th

November, 2016 was already past when the judgment was

rendered on 15th December, 2016, the learned Single Judge

moulded the relief as taken note of hereinabove.

9. The submission of Mr.Rupal, learned counsel for the

appellants is that since the reservation for PWD category is only

3%, at least 33 seats should have been available for reserving

one seat in the said category. He submits that only 31 seats

were available in the All India quota. Mr. Rupal submits that

the rounding off principle applied by the learned Single Judge

was not correct, since there is no rule permitting the same. In

this regard, he placed reliance on the decision of the Supreme

Court in The West Bengal Joint Entrance Examination Board

& Ors. Vs. Sarit Chakraborty & Ors., Civil Appeal No.8498 of

2014 decided on 1st September, 2014. This was a case where

the marks obtained in the Board Examination were rounded off.

The Supreme Court relied on Rule 24 to hold that the rounding

off was not permissible in view of the fact that the candidate

had to score a minimum of 33% marks in each of the papers,

and not less than 45% marks in the aggregate in all the written

papers in the main examination. The rounding off, which was

under challenge, was done from 44.6% to 45%. It was in this

background that the Supreme Court held that the principle of

rounding off could not be invoked in the facts of the case.

10. The further submission of Mr.Rupal is that the appellants

apply the 200 point Roster. The same is so stated in the bulletin

of information published by the appellants. Mr.Rupal has also

drawn our attention to the Office memorandum dated 29th

December, 2005 issued by the Department of Personnel &

Training, Ministry of Personnel, Public Grievances & Pensions

on the issue of reservation for persons with disabilities.

11. Before we proceed to state as to how the appellants have

provided for reservation for persons with disabilities in its

Roster, we may take note of the Government decision contained

in Office Memorandum. The said office memorandum in

Clause 15 sets out the manner in which reservation is to be

effected in Rosters and to be maintained. In so far as it is

relevant, Clause 15 is set out hereinbelow:-

"15. EFFECTING RESERVATON -

MAINTENANCE OF ROSTERS:

(a) All establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining/effecting reservation for the disabled - one each for Group `A' posts filled by direct recruitment, Group `B' posts filled by direct recruitment, Group `C' posts filled by direct recruitment, Group `C' posts filled by promotion, Group `D' posts filled by direct recruitment and Group `D' posts filled by promotion.

(b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, comprising the following points:

1st Block - point No.1 to point No.33

2nd Block - point No.34 to point No.66

3rd Block - point No.67 to point No.100.

(c) Points 1, 34 and 67 of the roster shall be earmarked reserved for persons with disabilities - one point for each of the three categories of disabilities. The head of the establishment shall decide the categories

of disability for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts.

(d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point no.1 is not identified for the disabled or the head of the establishment considers it desirable not to fill it up by a disabled person or it is not possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities.

(e) There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also not suitable for any category, three vacancies shall be filled as reserved from the third block

containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block."

(Emphasis supplied)

12. Mr.Rupal submits that in the 100 point Roster

maintained by the appellants, the vacancies falling at

Sl.Nos. 33, 67 and 99 in each of the categories namely

General, OBC, SC & ST are reserved for persons with

disabilities. According to Mr.Rupal, the aforesaid

mechanism of granting reservation meets the requirement

of granting 3% reservation to the PWD category

candidates.

13. To us, it appears that the aforesaid method of

providing for reservation for PWD is patently contrary to

aforesaid Office Memorandum dated 29th December,

2005. The said OM clearly provides that each reservation

roster register shall have cycles of 100 points, and each

cycle of 100 points shall be divided into three blocks

comprising of points 1 to 33; 34 to 66, &; 67 to 100.

Clause 15 (c) provides that points 1, 34 and 67 of the

roster shall be earmarked as reserved for persons with

disabilities - one point for each of three categories of

disabilities. The purpose and objection of providing the

1st, 34th & 64th slots as reserved for the persons with

disabilities, was clearly to ensure that such candidates are

not deprived of reservation in actual practice, merely on

account of the fact that the percentage of reservation

provided to such candidates is barely 3%. Thus, the

intent was to first accommodate persons with disabilities,

and thereafter the other candidates. Pertinently, the

reservation for the PWD category applies

compartmentally and horizontally. Thus, the right of a

candidate who belongs to the PWD category to get

selected, is not defeated on account of the seats being

reserved for the SC/ST or OBC categories. Reliance

placed by the appellants on sub-clause (d) of Clause 15,

to justify reserving the 33rd, 67th & 99th slots in the 100

point Roster for the persons with disabilities, is

completely misplaced. The said clause 15(c) provides

that if the post at point no.1 is not identified/earmarked

for persons with disabilities, or the head of the

department considers it desirable not to fill it up by a

disabled person candidate, or if it is not possible to fill up

that post by a disabled candidate for any other reason, one

of the vacancies falling at any of the points from 2 to 33

shall be treated as reserved for the disabled, and filled as

such. The same would be the position in relation to the

second and third blocks i.e. from 34 to 66, and 67 to 100.

This only means that if one of the eventualities taken note

of above arises, the very next vacancy/slot, shall be

reserved for the persons with disabilities. It cannot mean

that the concerned authority can push down the slot

meant for the persons with disabilities to the last position

in block, as has been done by the appellants. By doing

so, the appellants have clearly violated the letter and

spirit of Sections 33 & 39 of the Persons with

Disabilities (Equal Opportunities, Protection of Rights &

Full Participation) Act, 1995. In the present case, the

appellants have not disclosed as to why the first position

in 100 point Roster could not be reserved for the persons

with disabilities. Even if there was a valid reason for the

same, the reservation for the PWD category could be

pushed down by one point to serial no.2, and so on.

Certainly, sub-section (d) of Clause 15 could not have

been exploited to push the PWD category out of the

arena, by reserving the 33rd slot in the Roster for the

PWD category candidates when only 31 vacancies had to

be filled up.

14. In so far as the submission of Mr.Rupal with regard

to rounding off is concerned, we have already taken note

of the facts and circumstances in which the decision in

The West Bengal Joint Entrance Examination Board &

Ors. Vs. Sarit Chakraborty & Ors was rendered. They

were entirely different and cannot be compared to the

facts of the present case. That was a case of rounding off

of the marks, and that too in respect of the qualifying

marks. That was not a case concerned with computations

of the number of reserved seats like the present.

Mr.Rupal has not been able to bring to our notice the rule

which prescribes application of rounding off principle for

computation of vacancies for different classes and

categories.

15. There is yet another way to look at the situation.

The total number of vacancies sanctioned were 62. On

application of 3% reservation, the same would come to 2.

Thus, one seat in the Delhi University quota and in the all

India quota ought to have been necessarily reserved for

PWD candidate.

16. To the aforesaid extent, we are of the view that the

decision of the learned Single Judge is unassailable and

does not call for interference. However, we find that the

learned Single Judge has proceeded to reserve one seat in

the OBC category for candidate belonging to PWD

category. We do not find any basis for the same. In our

view, as to in which category the PWD seats should be

reserved, would have to be determined by reference to the

Roster and availability of PWD candidates. In our view,

since the reservation for the PWD candidates has to

operate horizontally, it would be for the appellants to

determine as to in which category, namely, General, SC,

ST or OBC, reservation for the PWD category candidate

should be granted in the admission process for 2017-18,

depending upon the merit of the candidates in Session

2017-2018. Since one PWD category candidate has been

deprived admission in the year 2016, we maintain the

direction issued by the learned Single Judge for granting

one extra seat for the PWD category in the next academic

session i.e. 2017-18, while making it clear that the same

need not necessarily be from the OBC category, and the

reservation of one additional seat for a candidate with

PWD shall be granted without disturbing the overall

number of seats sanctioned. At the same time, we are of

the view that the respondents could not have been granted

the relief that one of them should be granted admission in

the next academic session i.e. 2017-18 against the extra

PWD category seat, since the available seats would have

to be filled on merit, after considering the merit position

of all other competing candidates. However, the

candidature of the respondents shall also be considered

on the basis of their performance in the examination

undertaken by them.

17. The appeal stands disposed of accordingly.

CM No.14019/2017

18. In view of the appeal having been disposed of, this

application does not survive for adjudication and is

dismissed as such.

Dasti.

(VIPIN SANGHI) JUDGE

(REKHA PALLI) JUDGE JULY 18, 2017/aa