Delhi High Court
University Of Delhi & Anr. vs Zoya Gill & Ors. on 5 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 29.08.2017
% PRONOUNCED ON: 05.09.2017
+ LPA 521/2017 & & C.M. 27500-01/2017
UNIVERSITY OF DELHI & ANR. ..... Appellants
Through: Mr. Mohinder J. S. Rupal &
Mr. Prang Newmai, Advocates.
Versus
ZOYA GILL & ORS. ..... Respondents
Through: Mr. I.S. Singh, Mr. Abhishek
Singh & Mr. Pushkar Prehar, Advocates for
respondents No.1 & 2.
Mr. Arun Bhardwaj, Advocate for UOI.
LPA 552/2017 & C.M. 29781, 82, 83, 84/2017
KENDRIYA SAINIK BOARD & ORS. ..... Appellants
Through: Mr. Arun Bhardwaj, Advocate.
Versus
SAHIL DALAL & ANR. ..... Respondents
Through: Mr. Mohinder J. S. Rupal &
Mr. Prang Newmai, Advocates for R-2.
Mr. R. Balasubramanium and Mr. Santosh
Kumar, Advocates for respondent.
+ LPA 554/2017 & C.M. 29809, 10, 11, 12/2017
KENDRIYA SAINIK BOARD & ANR. ..... Appellants
Through: Mr. Arun Bhardwaj, Advocate.
Versus
LPA 521, 552, 554 & 555/2017 Page 1 of 17
ZOYA GILL & ORS. ..... Respondents
Through: Mr. I.S. Singh, Mr. Abhishek
Singh & Mr. Pushkar Prehar, Advocates for
respondents No.1 & 2.
Mr. Mohinder J. S. Rupal & Mr. Prang
Newmai, Advocates for R-3.
LPA 555/2017 & C.M. 29847-48-49-50/2017
KENDIRYA SAINIK BOARD & ORS. ..... Appellants
Through: Mr. Arun Bhardwaj, Advocate.
Versus
DHAIRYA SHARMA & ORS. ..... Respondents
Through: Mr. Mohinder J. S. Rupal &
Mr. Prang Newmai, Advocates for R-3.
Mr. R. Balasubramanium and Mr. Santosh
Kumar, Advocates for respondent.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUNIL GAUR
S.RAVINDRA BHAT, J.
1. The University of Delhi and the Kendriya Sainik Board
(hereafter referred to as "the University" and "the Board") are
aggrieved by a judgment of the learned Single Judge, allowing a writ
petition, preferred by the respondent (hereafter "the candidate") and
directing her admission to an appropriate seat in humanities in a Delhi
college. The candidate had complained of arbitrariness in the matter of
selection and admission to the quota set apart for wards of soldiers and
defense personnel who suffered in combat, or were disabled during
active service. This included a category of wards whose parent
succumbed to combat injuries.
2. On 14 May, 1992, the Board issued a circular, whereby defense
personnel who were disabled in action and were "boarded out" were
recommended priority, in a quota, or reservation of seats in medical
and dental colleges. This policy did not extend to admission to other
courses. A Division Bench of this court had, in a judgment dated
23.09.2016, in Ananya M.S. and Ors. Vs. Union of India and Others
(W.P. (C) No.7813/2016) spelt out that admission to medical and
dental colleges in this quota should be confined to wards of personnel
injured and also boarded out (i.e. in case the injured personnel was
allowed to continue in service, his or her ward would not enjoy the
facility of reservation). The candidate's father, a commissioned officer
in the Indian Army, had incurred a serious disability, in action with a
militant organization, i.e. the Khalistan Commando Force, which led
to a loss of his limb, sometime in 1990. The injury was classified as a
battle or war injury. She secured 94.2% in her CBSE (12 Standard
Board) examinations and applied under the quota set apart for injured
service personnel's wards. On 31.05.2017, the candidate applied for
admission online in category II in humanities (political science,
history, English and psychology). She expected that she would qualify
in the cut-off list in the said stream.
3. On 03.06.2017, the candidate discovered that the Information
Bulletin of the Delhi University had been amended and for the first
time, the phrase "boarded out" was inserted in priority II and priority
IV in CW category for admission to all under-graduate courses of
Delhi University. Upon inquiry, it was revealed that these changes
were made pursuant to this court's decision in Ananya (supra). The
candidate also complained that the University, omitted two categories
that had been notified in the Board's circular, for the purpose of
admission to its under-graduate courses. It was contended by the
candidate that she would have fallen in the last category (category VII
which applies to wards of ex-servicemen); yet, since the University
omitted with that category, she was left with no benefit under the
Board's policy. With these allegations, she approached this court, by a
writ petition.
4. The candidate's argument was that she had applied for her
admission online on 31.05.2017. The amended Information Bulletin
which was uploaded on the site was much after the initiation of the
admission process in her case, i.e. on 07.06.2017. It could not
therefore, apply to the facts of the instant case and even assuming that
the respondents could modify the Information Bulletin, it could not be
done in this current academic session year as the admission process
has already started. It can at best be done only in the next academic
session as if this is permitted, the prejudice suffered by the candidate
would be irreparable as she did not apply elsewhere. The candidate
relied on Mamta Bansal and Others v State of Punjab and Other
(2002) ILR 1 P & H 558; Siddarth Singh v The Vice Chancellor, Delhi
University & Others (judgment of this court dated 29.10.2015 in LPA
No.679/2014).
5. The University's position, before the single judge was that the
reservation or preference was made available pursuant to guidelines
prescribed by the other official respondents, i.e., the Union
Government and the Board. It was pointed out that pursuant to the
decision of this court in LPA 536/2016 (Master Harshil Anand v.
Union of India delivered in October, 2016), a direction was issued to
deliberate on the issue. By letter dated 24.05.2017, the Board specified
the priorities and the applicability of the circular/policy to all
professional or non-professional courses. On the basis of this letter,
the University adopted the sum and substance of this letter and
accordingly the Bulletin of Information for the year 2017-2018
provided CW reservation for under-graduate courses as per these
priority guidelines. The words "boarded out" were added in Priority II
& Priority IV. The number of priorities was limited to 5 instead of 7 as
recommended by Board. Apart from relying on the letter of the Board,
dated 24 May, 2017, the University also stated that the admission
process started only on 29 June, 2017 and that the last date for online
submission of application was 12 June, 2017. Since there was
considerable time for candidate to be acquainted with the revised or
amended Information Bulletin, requiring the guardian or parent of the
candidate/ward to have been boarded out, no prejudice was caused. It
was also submitted that a candidate, even after selection has no vested
right to be granted admission and that the policy can undergo change,
as it happened in this case. Moreover, the University asserted that the
policy change was necessary because of direction by this court.
Reliance was placed on Tej Prakash Pathak and Others Vs. Rajasthan
High Court and Others (2013) 4 SCC 540 to say that even after
advertisement, the criteria can be changed. The University also relied
on Rakhi Ray & Others Vs. High Court of Delhi and Others (2010) 2
SCC 637.
6. The Board, in its return, asserted its primacy in prescribing a
uniform policy and spelling out eligibility criteria, in regard to
admission under the reservation/quota for wards of the service
personnel. It was further stated that these policies were framed
keeping in mind the changing requirement of the wards/widows of ex-
servicemen disabled in action and boarded out of service. The Board
stated that it constantly maintained that the qualifying expression
"boarded out" formed a part of Priority II and Priority IV in the list of
seven priorities prescribed for CW reservations. Furthermore, the
Board stated that the Department of Ex-servicemen Welfare
maintained this stand since 14.05.1992 which was reinforced on
17.02.2015 as also on 19.05.2017. Since the candidate's father was not
boarded; yet had suffered a bullet injury, he was continued in service.
Therefore, the benefit of Priority II could not be accorded to her. It
was also stated that the candidate's father had since taken pre-mature
retirement in 2011 which was duly sanctioned. The
petitioner/candidate, therefore, could not claim the benefit of category
II but at best would be amenable to the benefit, if any, in category VII
which applies to a reservation for the wards/widows of ex-servicemen.
7. The learned single judge allowed the candidate's petition. The
impugned judgment, inter alia, reasoned as follows:
"19. Submission of the learned counsel for respondent
No. 5 on this count that the disclaimer clause "university
reserved the right to amend or delete any priority without
giving prior notice" comes to his aid is a misunderstood
submission. It does not help the stand of respondent No.1
as this Information Bulletin was amended after the
admission process had been initiated and was already in
progress. This fact is not in dispute. It is an admitted fact
that as per the earlier Information Bulletin uploaded by
the University on its website, the words „boarded out‟
did not form a part of category II. It is the consistent case
of the petitioners that between 22.05.2017 to 30.05.2017,
the admission portal of Delhi University was not
functional. On 31.05.2017 when the admission portal
became available, the same old policy for admission of
wards/widows/dependents of servicemen/ex-servicemen
who had been disabled in action but not boarded out was
reflected. Petitioner No.1 had online applied for
admission on 31.05.2017. She had applied in category II
for the subject humanities (political science, history,
English and psychology). She was legitimately and
rightly expecting that she would qualify in the cut-off list
as having scored 94.2 % marks in her CBSE. It was
genuine expectation that she would get admission in the
course of her choice in terms of the reservation policy as
categorized in category II and was a fully valid
expectation. She had also not applied in any other
university. 20 Once the admission process had started, it
was not within the domain of the University to have made
changes in the eligibility criteria. They could not have
inserted the words „boarded out‟ in category II and
category IV as has been done by them in the Information
Bulletin which has now been uploaded on 07.06.2017. A
valuable right of the petitioner has been jeopardized;
jeopardized to such an extent that unless this is rectified,
she would be hopelessly barred from getting admission in
any course in a university of repute and for a meritorious
student like her, this would be a huge emotional set back
which could probably not be reversed. This Court would
also like to point out that as late as 26.05.2017, the
petitioner had received a "Education Concessional
Certificate" from the Zila Sainik Welfare Officer,
Chandigarh informing petitioner No. 1 that she is eligible
for educational concession for admission in the Delhi
University against the armed forces quota in priority II."
8. In the other appeals, the candidates had complained that the
University arbitrarily refused to proceed with their applications, and
that the changes were made after expiry of the last date for submission
of applications, even after they had been called for counseling.
Following the judgment in W.P.(C) 5324/2017 (dated 10.07.2017) the
single judge allowed their petitions, resulting in two appeals LPA
554/2017 and LPA 521/2017.
Contentions of parties
9. It was argued by Mr. Mohinder Rupal, on behalf of the
University, that it had received the Board's letter dated 24.05.2017.
Thereafter, it took a policy decision. Instead of seven categories
indicated by the Board, the University retained Categories No. I to V
only; this was well within its domain to do so. As a policy decision,
the candidate could not challenge it. Learned counsel also argued that
the Information Bulletin uploaded for the academic session 2017-2018
(on 07.06.2017) contains a disclaimer clause which reserves the right
in the University to amend or delete any part of this bulletin without
giving any prior notice. The University states that it is empowered to
amend its earlier Information Bulletin, which had prescribed different
criteria. Since no vested right has been created in favour of the
candidate, the single judge fell into error in issuing directions.
10. Learned counsel relied on Tej Prakash Pathak (supra) to say
that earlier decisions which had frowned upon change of rules mid-
stream, during selection process, doubted those rulings. It was
submitted that since the candidate's rights had not been determined
and the last date for submission of application had not passed in the
present instance, the introduction of policy and change of eligibility
condition was neither arbitrary nor illegal. The candidate had the
opportunity to file a fresh application, if she was eligible. According to
her, the amendment was notified on 03.06.2017. Since no candidate
can claim vested right in continuance of rules or regulations or other
conditions regulating admissions, the petition had to fail. The single
judge fell into error, in allowing it.
11. Mr. Arun Bhardwaj, learned counsel for the Board also urged
that the flexibility of changing the eligibility condition to indicate the
"boarding out" condition cannot be challenged, since the extent of the
reservation, the conditions under which it can be claimed and the
categories who can benefit from it are to be spelt out through policies.
It was underlined that once the Board categorized defense personnel
who would be covered by its policies, to ensure uniformity, the
organizations where such reservation was to be given, could not
modify the benefits, either through expansion or restriction of benefits.
Mr. Bhardwaj argued that the University could not have done away
with Categories VI and VII, which were integral to the scheme and
policy of reservation and prejudiced wards of serving and ex-
servicemen.
12. The Board further argued that the candidate in this case, could at
best claim the benefit under Category VII as the ward of an ex-
serviceman, given that her father had voluntarily retired from service
in 2011. It was also argued that the boarding out condition was based
on sound rationale, because those service personnel who were injured
due to combat action or were disabled on account of active service, but
were continued in service, were not of the same class as those who had
to face termination of employment, on that account. Those among the
injured or disabled, but who received awards were treated separately
and placed in Category V, regardless of whether the parent was
serving or ex-servicemen. Wards of such disabled service personnel,
who were continued in service, could avail the benefit of reservation
either in Priority VI or Priority VII. It was submitted that the
classification based on the employee/parent being terminated or
"boarded out" as a precondition attached in the eventuality of injury to
the service personnel, was valid and rational. Being a matter of policy,
the candidate could not successfully challenge it.
Analysis and findings
13. The candidate's grievance was that despite her fulfilling the
eligibility conditions originally published in the information bulletin
by the University, on account of a later addition requiring disabled
defense personnel to have been boarded out, her application was not
considered.
14. The University's defense was that the condition was introduced
as it were after the initial publication of information bulletin, i.e.
sometime in May 2017 (on 25.05.2017). The Board supports the
University's position by stating that this condition had to be followed
by educational institutions granting reservation in terms of the
previous judgment of this Court- for which the Board issued
instructions, so far as categories 2 and 4 were concerned. The
instructions were issued to all Universities on 24.05.2017.
15. As is evident from the discussion in the impugned judgment, the
learned Single Judge went by the principle that rules of the game
cannot be altered once the admission process begins. The Board and
the University complained that no rights had accrued to any candidate
and that even by her own admission the candidate became aware of the
condition of the boarding committee on 03.06.2017. Therefore, she
could not complain of any accrued or vested right in the eligibility
conditions that were originally published - more so given that the
processing of applications began on 29.06.2017.
16. Before discussion of the merits of the rival contentions, it would
be essential to notice that when the Board initially introduced the
reservations - on 14.05.1992, only four categories of priority were
indicated: in terms of priorities 1-4, i.e. (a) those killed in action; (b)
those disabled in action; (c) those dead in peace time with death
attributable to military service, and (d) those disabled in peace time
with disability attributable to military service. These reservations were
confined to admissions in medical and dental colleges. On 03.06.1994,
the Union Defense Ministry sought to standardize admission under the
quota in all central universities and other institutions for wards of
defense personnel. The priorities recommended as follows:
"Priority-I: Widows/wards of Defence personnel killed in
action.
Priority-II: Wards of serving personnel and ex-Servicemen
disabled in action.
Priority-III: Widows/wards of defence personnel who died in
peace time with death attributable to military service.]
Priority-IV: Wards of defence personnel disabled in peace time
with disability attributable to military service.
Priority-V: Wards of ex-Servicemen and serving personnel who
are in receipt of Gallantary Awards:-
(1) ParamVir Chakra
(2) Ashok Chakra
(3) SarvottamYudhSeva Medal
(4) MahaVir Chakra
(5) Kirti Chakra
(6) UttamYudhSeva Medal
(7) Vir Chakra
(8) Shaurya Chakra
(9) YudhSeva Medal
(10)Sena, NauSena, Vayusena Medal
(11)Mention-in-Despatches
Priority-VI: Wards of ex-servicemen
Priority-VII: Wards of serving personnel."
17. Further instructions were issued which by and large maintained
the above priorities. These instructions continued for quite some time.
In Ananya (supra) it was noticed that there was a disconnect between
the guidelines - as amended, which qualified the categories in Priority
II and IV to the effect that only the wards/widows of those priority
categories, and where the disabled personnel were boarded out of
service, were entitled to the protection. This court consequently held
that this quota should be confined to wards of personnel injured, and
also boarded out (i.e. in case the injured personnel was allowed to
continue in service, his or her ward would not enjoy the facility of
reservation). The necessary policy document leading to this was the
letter of 24.05.2017, by the Board addressed to the University bringing
to its notice Letter No. 6 [(1)/2017/D(Res-II) dated 19.05.2017]
regarding the inter-se priority for reservation preference to the wards
of armed forces personnel of the State/UTs for admission to
medical/professional/non-professional courses. It was, for the first
time, that this communication the words "boarded out from service"
were added in priority II and priority IV, for non-professional/other
professional courses. The single judge found that the University "had
amended its Information Bulletin only pursuant to this communication.
This Information Bulletin had been amended by respondent No.1 on
07.06.2017."
18. Now, this policy change no doubt, was reflected in the first
week of June, 2017, before the last date of submission of applications.
Yet, it had a drastic effect of curtailing choices of
applicants/candidates, who might, had they been informed earlier,
applied elsewhere and explored more options. Moreover, the
implications of on the one hand, restricting the priority altogether by
adding the boarding out condition, and on the other excluding Priority
VI and VII meant that by one stroke, an entire category of personnel,
who were seriously injured, by even losing a limb or having a life-long
debilitating injury, and kept on rolls only as a policy, with little or no
further career prospects, would no longer receive benefit for their
wards. Also, wards of other serving and ex-servicemen categories
were unable to secure the benefit of reservation.
19. The University had during the course of hearing, justified its
stand - of deleting two categories, by stating that since reservations
were in its institutions and colleges and it was a statutory authority
with its independence it enjoyed autonomy in regulating the categories
of personnel whose wards could be given benefit of reservation, in the
5% quota indicated by the Board. In support of this argument, the
University had relied on the order in Delhi Technological University,
Delhi v. Sukhanshu Singh (LPA 786/2010 decided on 12.11.2010).
Specifically, reliance is placed on the following paragraph:
"In view of the preceding analysis, we are of the
considered opinion that there is no command or mandate
to the present university to fill up 5% quota from all the
seven categories. The university, by a conscious decision,
has excluded the last two categories. Therefore, no fault
can be found with the same. That apart, it is submitted by
Mrs. Begum, that the academic council, after due
deliberation and taking into consideration the hardship
factors, has restricted it to the first five categories. Be
that as it may, the learned Single judge could not have
treated the recommendations as a command and issued a
writ of mandamus. Thus, we are unable to agree with the
view taken by the learned Single Judge."
20. This court is of opinion however, that this decision cannot
extend to a universal principle that a University's autonomy in respect
of reservations would ipso facto extend to its picking or choosing
elements from a uniform system of preference or reservations,
accepted by it from an organization, particularly of one like the Board.
The Board has evolved a uniform policy, the structure of which has
been accepted by all educational programmes which sign up or accept
the 5% quota. The quota carries with it not only the outer limit or
quantum of reservation, but also other conditions, such as the number
of priorities, the conditions governing each, etc. This uniform scheme
constitutes, in short a package, the elements in which should be left
undisturbed. 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.
21. Having regard to all the above circumstances, this court is of the
opinion that the conclusions and directions of the learned single judge
in the impugned judgment in these appeals cannot be faulted. The said
impugned judgment and order and the other orders directing
processing and grant of admission to the candidates is upheld. The
following directions are at the same time, issued, for future guidance:
(a) The Delhi University shall strictly ensure that the Board's
guidelines are embodied in its admission
guidelines/instructions/ brochures unequivocally.
(b) Those guidelines (of the Board) - as to the number of
priorities, quantum of reservations and other preconditions
and terms (such as those relating to "boarding out") shall be
adhered to by the University. Any deviation should be after
previous consultation with and concurrence of the Board.
(c) Any changes necessitated on account of changes in the
Board's policy or guidelines shall be clearly notified, in any
ongoing admission process- in a corrigendum to be properly
published granting proper time to candidates to opt- or file
applications afresh.
(d) Such changes or corrigenda should ordinarily be published or
notified in the same manner as in the case of the original
instructions/admission guidelines.
22. The appeals are dismissed, but in terms of the above directions,
without any order as to costs.
S. RAVINDRA BHAT
(JUDGE)
SUNIL GAUR
(JUDGE)
SEPTEMBER 5, 2017
