Abhinav Sinhmar (Minor) vs The Chairman, Joint Admission ...
2017 Latest Caselaw 5984 Del

$~16

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of judgment : 30.10.2017


+      W.P.(C) 6076/2017 & C.M. No.25244/2017

       ABHINAV SINHMAR (MINOR)                      ..... Petitioner

                          Through      Mr.J.S.Mann, Advocate.

                          versus

       THE CHAIRMAN, JOINT ADMISSION COMMITTEE & ORS

                                                  ..... Respondents

                          Through      Mrs.Avnish Ahlawat and Ms.Palak
                                       Rohmetra, Advocte for R-1/DTU.

                                       Ms.Isha Khanna, Advocate for R-4.

                                       Mr.Arun Bhardwaj, CGSC for R-2,
                                       R-3 and R-5.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1      By this petition, the petitioner is seeking a prayer of issuance of an

admission slip confirming his admission in the B.Tech (Computer

Engineering) Course in the Netaji Subhash Institute of Technology, Delhi; he

claims priority in GN CW Category in Priority IV of the defence category.

2 The averments in the petition disclose that the father of the petitioner

had been discharged from Indian Army after having served there for 5 years

11 months and 11 days; he was discharged on 31.12.1993. This was due to a

medical disability attributable to military service and a document (Annexure

P-2) to this effect has been annexed along with the petition. The

corrigendum dated 12.02.2016 (Annexuree P-7) confirmed the fact that the

father of the petitioner (Sukhbir Singh) had a disability entitling him to a

pension for life.

3 Record discloses that the petitioner had qualified the JEE (Main)

2017; he obtained CRL rank of 208646. He applied in the defence category

(CW) under priority IV for the B.Tech admission at the respondent

University online. The name of the petitioner was included in priority IV; he

was called for counseling on 07.7.2017 as also on 12.7.2017. Admisison fee

had been deposited by the petitioner on 06.7.2017. His name was included

for admission in the priority IV. He was later on informed that his admission

had been cancelled as he did not qualify in priority IV as his father had not

been boarded out from service. Submission being that the letter of the

Competent Authority i.e. the Rajya Sainik Board dated 29.6.2017 and the

letter of nodal agency Kendriya Sainik Board dated 30.6.2017 had been

ignored. The admission of the petitioner had been cancelled; he not having

been considered under priority IV but had been informed that he had

qualified for priority VI which disentitled the petitioner for admission. The

petitioner had no other option but to file the present writ petition.

Submission is that this act on the part of the respondent is illegal. The father

of the petitioner having been discharged/boarded out from service only on a

medical ground which he had suffered a disability (15% to 19%) the case of

the petitioner had to be considered for admission under priority IV; a person

discharged from service is nothing but a boarding out from the service. The

documents of the petitioner i.e. the letter of Rajya Sainik Board and

Kendriya Sainik Board evidencing this factum could not have been tinkered

with by the respondent enabling him to cancel his admission which was not

within their domain to do so. Relief of admission to the aforenoted B.Tech

course has accordingly been prayed for.

4 Couter affidavit has been filed by respondent no.1. The stand of the

aforenoted respondent is that the petitioner is not entitled to be priotized

under priority IV; he can only be considered under priority VI. The father of

the petitioner having been discharged from service did not amount to a

boarding out from the service and as such the petitioner cannot take the

benefit of priority IV. A panel of defence experts had been set up as per the

practice followed by the JAC. This panel amongst others included a member

of the Rajya Sainik Board, Government of NCT of Delhi and also an officer

from Ministry of Defence. This verification was done at the Indira Gandhi

Delhi Technical University on 28.6.2017. The documents of the petitioner

were produced and verified. The petitioner at that point of time admittedly

did not have the certificate of Rajya Sainik Board (dated 29.6.2017) and that

of the Kendirya Sainik Board (dated 30.6.2017). These documents which

were produced later on were again reviewed by the Defence Panel on

19.7.2017. This expert panel had reviewed the documents of the petitioner

including the document dated 29.6.2017 issued by Rajya Sainik Board as

also the document dated 30.6.2017 issued by the Kendriya Sainik Board.

The documents having been examined by the expert panel, they were of the

view that the petitoner's case does not call for a review and he could not be

considered for priroty IV; he could only be considered under priority VI.

5 The other respondents i.e. respondent nos.2 to 5 have chosen not to

file a separate counter affidavit. Respondent nos.4 and 5 i.e. Rajya Sainik

Board and Kendriya Sainik Board are represented through their counsel.

They admit that the document of the Rajya Sainik Board dated 29.6.2017

and that of the Kendriya Sainik Board dated 30.6.2017 are documents

evidencing that fact that the petitioner has to be considered for priority IV.

Additional submission of the said counsel is that these documents are

conclusive documents qua the status of the petitioner and cannot be

interfered; they cannot be re-examined by respondents No.1 and 2. This

Court notes the stand of respondent nos.4 and 5.

6 Arguments have been heard. Record has been perused.

7 The record shows that the petitioner had applied for admission to the

B.Tech course (Computer Engineering) in the NSIT under the CW category

in priority IV. He had been issued an allotment letter dated 06.7.2017. He

had deposited his fees on 06.7.2017. He had been called for counseling on

07.7.2017. This was in priority IV. The counter affidavit of the respondent

admits the fact that the petitioner had been granted provisional admission to

this professional B.Tech course subject to the verification of the documents

produced by the petitioner. At the initial stage the petitioner had produced

certain documents; these documents reflected the status of the father of the

petitioner; he was in the category of Laxicity Medial Lateral Collateral

Ligament (RT) Knee; his unit was 6 JAT Regiment; he was of the rank of

SEP; he was in service for 5 years and 6 months on the date when it was

reported that because of this disability he had to be released from service.

The medical record of the father of the petitioner further reflected that this

disability was attributable to his service i.e. a physical exertion of the service

military (page 55 of the paper book). This was the opinion of the Medical

Board (page 65 of the paper book). The medical disability opined the father

of the petitioner to be suffering from a 15% to 19% disability (page 80 of the

paper book). The further record (medical board proceedings) reflected that

the date of the enrolment of the father of the petitioner in the army was

20.01.1988; he was discharged from the service on medical ground on

31.12.1993. Respondents have heavily relied upon the use of the word

"discharged" (page 127 of the paper book). Submission is that this does not

qualify as a "boarding out" from service; the father of the petitioner has

attained the status of an ex-service man, the petitioner was rightly considered

for priority VI and not priority IV.

8 Per contra, the documents of the petitioner (heavily relied upon by

him) is a document dated 13.11.2013 which was an information given to his

father from the record of the JAT Regiment informing him about his

disability; his disability having been assessed between 15% to 19%; this

document reported that he was invalided from service. At that stage, he was

not granted a disability pension but later on (not in dispute) because the rules

of the respondents had changed, the father of the petitioner had been granted

a disability pension. The certificate of the Rajya Sainik Board dated

29.6.2017 (Annexure P-9/ page 144 of the paper book) is a relevant

document; it reads as under:

"5.That the said disabled soldier has been granted disability pension and his

disability is attributable to Military service and his case comes under

PRIORITY FOUR as discharge from service on medical grounds/invalided

out of service, boarded out from service on medical grounds and has been

granted disability pension, all comes under PIORITY IV."

Para 5 of Annexure P-9 clearly states that the father of the petitioner had

suffered a disability which was attributable to military service and his case

comes under priority IV as he has been discharged from service on medical

ground/invalided out of service, boarded out from service on medical

ground. He had also been granted a disability pension.

9 Para 3 of the certificate issued by Kendriya Sainik Board (Annexure

P-11/page 149 of the paper book) another relevant document reads as under:

"Master Abhinav Sinhmar is son of No.3182006H Ex.Sep Sukhbir Singh is

eligble for educational concession for admission to

Medical/Professional/Non-Professional Courses against the Armed Forces

quota in State/UTs under Priority/Category IV."

10 It was certified by the Kendriya Sainik Board that the petitioner being

the son of Sukhbir Singh was eligble for educational concession for

admission to the medical/professional/non-professional courses against the

Armed Forces quota in State/UTs under Priority/Category IV.

11 The fact that these documents were earlier not available to the

respondents but had been considered by the Review Committee in their

review order on 19.7.2017 is not in dispute. It is not the case of the

respondent that the petitioner even at the initial stage had no document to

categorize himself in priority IV. He had the medical record of his father

but as per the petitioner since the respondents had sought better details the

document dated 29.6.2017 (issued by Rajya Sainik Board) and the document

dated 30.6.2017 (issued by Kendriya Sainik Board) had been handed over to

the respondent which had led them to call for a Review Committee meeting

held on 19.7.2017. Minutes of the meeting of the Review Committee have

been annexed along with the counter affidavit of the respondent. These

minutes are Annexure R-3. The case of 5 candidates including the petitioner

(Serial no.2) was reviewed. 12 members attended the meeting. Learned

counsel for respondent nos.1 and 2 vehemently argued that a defence expert

from the Rajya Sainik Board (Serial No.10) and a defence expert from

Defence Head Quarter, AG Branch (Serial No.11) reflected the participaton

of both the Rajya Sainik Board and the Kendriya Sainik Board. It was a

joint decision taken by all the 12 experts who were of the opinion that the

petitioner was not entitled to be categorized under the priority IV but he

should be considered under priority VI.

12 These minutes are however hopelessly silent as to the reason and how

this decision was arrived at; which document was examined and which was

left out is not known. The document dated 29.6.2017 issued by Rajya Sainik

Board and the document dated 30.6.2017 issued Kendriya Sainik Board tell a

different story; these documents are not in dispute. Both these documents

state that the petitioner is entitled for admission to the aforenoted course

because of the disability which was suffered by his father and was

attributable to his military service and his case should be considered in

priority IV.

13 Relevant would it be to extract the aforenoted priorities; priority IV

reads as under:

"Priority IV- Widows/wards of Defence Personnel/Para Military

Personnel disabled in service and boarded out from service with disablity

attributed to military service."

Priority VI reads as under:

"Priority VI- Wards of Defence Ex-servicemen."

Priority IV gives a priority to wards of defence personnel who are

disabled in service and boarded out from service with disability attributed to

military service. The fact that the father of the petitioner namely Sukhbir

Singh had been discharged/boarded out from service with a disability

attributed to the military service is clear; it cannot be disputed. It is thus a

clear case where because of the disability of the father of the petitioner that

he was discharged from the service. The submission of the learned counsels

for respondent nos.1 and 2 that a "discharge" would not qualify within the

meaning of "boarding out" from service as appearing in priorty IV is a

misconceived submission. An army defence personnel having been

discharged from service with disability which he has suffered during the

course of military service has necessarily to be read as a "boarding out" from

service for the said reason. A query has been put to the learned counsels for

respondent nos.1 and 2 as to whether a personal who is suffering from a

disability of 15% to 19 % (as in the case of the father of the petitioner) does

not qualify for that reason in priority IV; for which they have no answer. It

is not the percentage of the disability which is relevant for the wards of the

defence personnels to avail a particular category. This query has neither

been negative nor the same has been extended. Priority VI is another

category in which the petitioner can also be considered but if he fits in

priority IV which entitles him to better prospects the question of his being

considered in priorty VI would not arise. The case of the petitioner squarely

falls in priorty IV.

14 Reliance by the learned counsel for petitioner on the judgment of the

Division Bench of this court in LPA 521/2017 University of Delhi and Anr.

Vs. Zoya Gill and Ors. with particular reference to the following interalia

obseravations which reads as under:

"20............Any other interpretation can result in chaos for the policy itself, because one University may choose to retain reservation for wards of only one priority, whereas another may choose to extend it to five. Some may avoid reservations to gallantry awardees' wards altogether. Each such exclusion may be justified on grounds of exercise of power; yet allowing individual variations would mean that the all India character of the benefit, enjoyed by the defense services, with uniform benefits to its personnel and their dependents would be destroyed. It can also result in distorted results, as in the present case, where the petitioners' fathers were grievously wounded, or injured, but not boarded out. Even if the boarding out condition were left undisturbed, the petitioners would still have been considered under

Priority VI or VII. However, the University's exclusion of those categories has sounded a death knell and put paid to their candidatures altogether. The rationale for excluding these categories is absent altogether. Now, if the boarding out condition were to be introduced, as the University urges, and at the same time, the listed four priorities (excluding two) are to be upheld, the result would be that wards of those who suffered combat injuries and barely survived, or those who were seriously affected or disabled on account of reasons attributable to military service (but who are retained, on grounds of compassion) would have no reservation or priority, because they are wards of serving personnel for whom the University would permit no advantage in the CW category. Therefore, the mere assertion of the right to categorize, without any good reasons to exclude one or the other category strikes at the integrity of the entire scheme. Sukhanshu Singh, in this court's opinion, cannot be faulted in holding that the University possesses the power to accept or refuse the 5% quota; however, the autonomy to further deal with or restrict the categories, for the purpose of enjoying benefit, or imposing (or relieving) conditions, cannot, per se be upheld, unless a strong reason for departure is made, after due consultation with the concerned Union Defense Ministry authorities or the Board. In this case, there is no reason given for restricting the categories to only four.

has force. These observations were made in the context of the submission

made by counsel for Delhi University that they were considering only

priorities I to V and priorities VI and VII had been excluded by them. This

argument of the Delhi University was rejected.

15 The admission of the petitioner be considered by the respondents in

terms of priority IV of the CW category.

16 Submission of the petitioner, at this stage, is that since the petitioner

has not been able to attend the classes because of intervening writ petition

his attendance may be considered in a sympathetic manner. The respondents

shall consider this aspect sympathetically.

17     Petition is allowed in the above terms.



                                        INDERMEET KAUR, J

OCTOBER 30, 2017
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