Delhi High Court
Javed Abidi Foundation vs Union Of India & Ors. on 6 November, 2020
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06th November, 2020
+ W.P.(C) 3471/2020 & CM APPL. 12299/2020
JAVED ABIDI FOUNDATION ..... Petitioner
Through: Ms. Sanchita Ain, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Kirtiman Singh, CGSC with
Mr. Rohan Anand, Advocate for R-1
& 2/UOI.
Ms. Monika Arora, Advocate for
R-3/JNU.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
D.N. PATEL, Chief Justice (Oral)
The proceedings in the matter have been conducted through video
conferencing.
1. This Public Interest Litigation has been preferred with the following
prayers:
"a) Issue a writ in the nature of mandamus or any other
appropriate writ directing the Respondent No. 3 to issue an
appropriate admission policy and e-Prospectus modifying
the impugned admission policy and e-Prospectus consistent
with the RPWD Act, 2016 and reserve seats not less than
5% of the total number of seats for PWD candidates and
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compute the seats reserved for PWD candidates on the basis
of the total number of seats without dividing them between
different Schools/Centres.
b) Issue a writ in the nature of mandamus or any other
appropriate writ directing Respondents No. 1 and 2 to issue
instructions to all Government institutions of higher
education and other higher education institutions receiving
aid from the Government stating that the non-observance of
the scheme of reservation of persons with disabilities would
be considered as an act of disobedience and strict action
would be taken against those institutions found to violate
Section 32 of the Act; and
c) Pass any other/further order(s) as this Court may deem
fit and proper in the interest of justice."
SUBMISSIONS OF THE PARTIES
2. Learned counsel appearing for the petitioner submitted that as per the
Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as "the
Act, 2016" for the sake of brevity), minimum 5% reservation should be
maintained for students with benchmark disabilities in Higher Education
Institutions like respondent No.3 - Jawaharlal Nehru University.
3. Learned counsel appearing for the petitioner has submitted that the
respondent No.3 - Jawaharlal Nehru University is not maintaining the
aforesaid minimum percentage of reservation in the Admission Process of
the students in various schools/centres.
4. Learned counsel appearing for the petitioner has taken this Court to
Admission Policy of the respondent No.3 - University, especially Clauses 3,
4, 6 and 7 and it is submitted that Clause 7 provides for 5% horizontal
reservation for persons with disabilities with minimum disability to the
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extent of 40%. Previously also, a similar writ petition, being W.P.(C)
3817/2018 (National Federation of Blind v. Union of India & Ors.), was
instituted and it was observed by this Court that respondent No.3 -
University cannot violate the mandate of the law.
5. It is further submitted by the learned counsel for the petitioner that in
total disregard to Section 32 of the Act, 2016, the respondent No.3 -
University is giving admission to the students in various branches. In some
of the categories, the seats reserved for Persons with Disabilities (hereinafter
referred to as "PWD students") are as low as 2.5% and the total number of
seats reserved for PWD candidates comes to only 4.86%.
6. Learned counsel appearing for the petitioner has taken us to Annexure
P-3 to the memo of this writ petition and has stated that for various
programmes of studies, the reservation for PWD students is less than 5%
which is in violation of Section 32 of the Act, 2016.
7. Learned counsel appearing for the petitioner has relied upon the
aforementioned decision rendered by this Court in National Federation of
Blind v. Union of India & Ors.; 2018 SCC Online Del 12367 as well as the
decision rendered by the Hon'ble Supreme Court in the case of Justice
Sunanda Bhandare Foundation v. Union of India & Anr.; (2017) 14
SCC 1.
8. We have heard the learned counsel appearing for the respondent No.3
- Jawaharlal Nehru University who has submitted that A detailed counter
affidavit has been filed by the respondent No.3.
9. It is submitted by the learned counsel for the respondent No.3 -
University that the respondent - Jawaharlal Nehru University is providing
5% reservation to PWD category students for the Academic Year 2020-21
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and the same has been clearly mentioned in the e-Prospectus of the
University and the Admission Policy and Procedure 2020-21.
10. It is also submitted by the counsel for the respondent No.3 -
University that the provisions of the Act, 2016, the Rules made thereunder,
the regulations of the University and the Admission Policy also provide for
5% reservation for PWD students.
11. It is further submitted by the counsel for the respondent No.3 that
clause 7.1(b) of the Admission Policy and Procedure prescribes for the
reservation for the PWD students. The said Admission Policy and Procedure
for the Academic Year 2020-21 is at Annexure P-5 to the memo of this writ
petition.
12. It is submitted by learned counsel for the respondent No.3 -
University that this provision in the Admission Policy and Procedure was
incorporated because of the decision rendered by this Court in the case of
National Federation of Blind v. Union of India & Ors.; 2018 SCC Online
Del 12367 (Annexure P-2 to the memo of this writ petition).
13. It is further submitted by the learned counsel appearing for the
respondent No.3 that in case of courses having less than 9 seats, the clubbing
of seats is done at the respective school/centre level so that the qualified
PWD candidates are not left out from getting reservation in certain courses
of schools/centres.
14. Learned counsel for the respondent No.3 has placed reliance upon
paragraph 4 onwards of the additional affidavit filed by the respondent No.3.
Learned counsel has also placed reliance upon Annexures-1 and 2 to the
memo of additional affidavit on behalf of respondent No.3 which is in a
tabular format, giving the details of the total number of seats, the seats
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reserved for PWD students and which also reveals aggregate percentage
after clubbing of seats out of 100.
15. It is further submitted by the learned counsel for respondent No.3
especially after reading Annexure-2 that in M.Phil. through E-entrance, the
aggregate percentage after clubbing of seats out of 100 is 6.74%. Similarly,
for M.Phil. through NET JRF is 5%, for Ph.D. through JNUEE is 6.36% and
for Ph.D. through NET JRF is 7.6%.
16. Similarly, Annexure-1 which is annexed with the additional affidavit
of the respondent No.3 - University has been pointed out to this Court in
detail and it has been submitted that, after clubbing of the courses, as stated
hereinabove, there is no violation of the provisions of the Act, 2016 and the
reservation is minimum 5% for PWD students and hence this writ petition
may not be maintained by this Court.
REASONS
17. Having heard learned counsel for both the sides and looking to the
facts and circumstances of the case, it appears that several grievances have
been ventilated by the petitioner that Jawaharlal Nehru University is not
maintaining minimum 5% reservation for PWD students which is in
violation of Section 32 of the Rights of Persons with Disabilities Act, 2016.
We have issued notice upon respondents and detailed counter affidavits have
been filed by Jawaharlal Nehru University - respondent No.3.
18. For ready reference, Section 32 of the Rights of Persons with
Disabilities Act, 2016 reads as under:
"Section 32. Reservation in higher educational institutions.
(1) All Government institutions of higher education and other
higher education institutions receiving aid from the
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Government shall reserve not less than five per cent seats
for persons with benchmark disabilities.
(2) The persons with benchmark disabilities shall be given an
upper age relaxation of five years for admission in
institutions of higher education."
19. As per the counter affidavit filed by the respondent No.3, paragraph
(i) reads as under:
"(i). That the contents of sub-para (i) are denied in toto being
wrong, misconceived and based on incorrect interpretation of
law and facts. It is humbly submitted that the University is
committed to provide 5% reservation to PWD category in all
programmes for Academic Year 2020-2021 and the same has
been clearly mentioned in the e-prospectus of the University
and the Admission Policy 2020-2021. The rules and regulations
of the University are in compliance of the Disability Act, 2016.
It is submitted that a bare perusal of the ready-reckoner shows
that the first reservation seat to PWD category goes on the 9th
point, i.e. if intake of a school or center is 9 seats, one seat
would be reserved for PWD candidate.
The idea behind the reckoner is to benefit the PWD candidates
and ensure reservation in almost all the courses taught in
various schools/ centers of the University. In case of M.Phil.
and Ph.D., in some centers within a school, if the intake is less
than 9, it would put a PWD candidate at disadvantage (as
reservation cannot be operationalized if seats are less than 9).
In pursuance of the decision of this Hon'ble Court in 'National
Federation of the Blind v. Union of India & Ors.', the
University has enacted the provision 7.1(b) of the Admission
Policy which states that-
"PWD category reservations shall be
implemented/operated grouping seats wherever
seats are less than 10 and keeping it floating by
clubbing such seats to ensure at least 1 seat for
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PWD category. Wherever qualified candidate is
available within these 10 seats and adjusting
his/her category against the respective category to
which he/she belongs. Further, if still numbers of
seats are less than 5%, decision to fill up these
seats from among the qualified PWD category
candidates, wherever available, may lie with the
Vice-Chancellor to ensure filling up of maximum
seats in PWD category in compliance with
Disability Act 2016."
The said provision clearly indicates that in case the intake is
less than 9 seats, the recourse to the provision shall be taken.
An illustration would clarify the position-
In case of School of International Studies, the Centre for
Chinese Studies has an intake of 8 seats and the Centre for
Korean Studies has an intake of 2 seats, both in M.Phil.
programme. As per the ready-reckoner, there is no reserved
seat for PWD category, however, before the declaration of the
result the intake of the said two schools shall be clubbed
making the total intake to 10 seats and thus providing
reservation of 1 seat for PWD category student who has
attained higher score. It is pertinent to mention here that the
above example of clubbing of seats of aforementioned centers is
only illustrative in nature. In the said manner, the seats of
centers where intake is less than 10 are clubbed to achieve the
mandate of 5% reservation for PWD category students.
A copy of said ready-reckoner has been attached herewith as
Annexure-I."
20. In view of the aforesaid submission of the respondent No.3, when the
intake in any of the course is less than 9, then clubbing is permissible as per
the decision rendered by this Court in National Federation of Blind v.
Union of India & Ors.; 2018 SCC Online Del 12367.
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21. For ready reference, paragraphs 8, 9 and 10 of the aforesaid decision
read as under:
"8. The justification given by the University is appealing but
we cannot ignore the fact that Dharamveer Yadav despite
qualifying the selection process could not get admission as
there was only one reserved seat for a disabled candidate
and not two. Also, we find that many reserved seats, at least
15 have gone waste as no person with disability could get
qualified, against the said seats. In such an eventuality and
in peculiar facts of this case, the Court is of the view that
the Respondent No. 3 shall increase the intake to 8 in
the "Comparative Political Theory" stream, which shall be
supernumerary, which shall get lapsed after Dharamveer is
awarded the degree. His admission shall also consume one
seat of the unfilled seats reserved for PWD, which could not
be filled for want of candidates.
9. That apart, this court is of the view that the respondents
cannot dilute the mandate of the Section 32 of the
Disabilities Act, and reduce the reservation to less than 5%.
This is what has been held by this court in the cases
of Sambhavana v. Union of India W.P.(C) 3919/2014
decided on March 4, 2015; Students Federation of
India v. Union of India W.P(C) 3032/2017 decided on
October 1, 2018 and the Supreme Court in the cases
of Justice Sunanda Bhandare Foundation v. Union of India
(UOI), (2017) 14 SCC 1; Union of India v. National
Federation of Blind, (2013) 10 SCC 772.
10. It is for the University to work out the mandate of the
Act, so that every person with disability, who qualifies get
admission. But in no case they can violate the mandate."
(emphasis supplied)
22. In pursuance to the aforesaid decision rendered by a Division Bench
of this Court, there was a revised Admission Policy and Procedure floated
by the respondent No.3 for the next Academic Year.
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23. As per Admission Policy and Procedure of Jawaharlal Nehru
University for the Academic Year 2020-21, Clause 7 is for reservations. For
ready reference, Clause 7 of the Admission Policy and Procedure of
Jawaharlal Nehru University for the Academic Year 2020-21 (Annexure P-
5) reads as under:
"7. Reservations:
7.1 Reservation of Seats: 27% seats for OBC, 15% seats for SC,
7.5% seats for ST and 5% seats for person with disability
(PWD) as per the reservation policy of the Government of India
(with minimum disability to the extent of 40%) in pursuance of
Provisions of Rights of Persons with Disabilities Act 2016.
Reservation of 5% seats in respect of PWD candidates shall be
done horizontally, as per the Government of India
Guidelines/Policy.
a) Reservation for EWS: The persons belonging to EWSs who
are not covered under the scheme of reservation for SCs, STs
and OBCs shall get 10% reservation in Admission to various
programmes of study except M.Phil and Ph.D.
b) PWD category reservations shall be implemented/operated
grouping seats wherever seats are less than 10 and keeping it
floating by clubbing such seats to ensure at least 1 seat for
PWD category. Wherever qualified candidate is available
within these 10 seats and adjusting his/her category against the
respective category to which he/she belongs. Further, if still
number of seats are less than 5%, decision to fill up these seats
from among the qualified PWD category candidates, wherever
available, may lie with the Vice-Chancellor to ensure filling up
of maximum seats in PWD category in compliance with
Disability Act 2016.
7.2 Relaxation for admission to the programmes for M.Tech,
MPH, PGDE, M.A./M.Sc./MCA, B.A.(Hons.)1st year, B.Sc.-
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M.Sc. integrated programme and part-time programmes:
(except for B.Tech and MBA, the criteria for the said courses
are given separately in the concerned section of the e-
Prospectus): The SC/ST and Person with Disability (PWD)
candidates who have passed the qualifying examination
irrespective of their percentage of marks are eligible to appear
in the Entrance Examination. All OBC category (non-creamy
layer) candidates are eligible to 10% relaxation in the
percentage of marks in the qualifying examination in relation to
open category.
7.3 Relaxation for admission to M.Phil programmes
A relaxation of 5% marks from 55% to 50% or an equivalent
relaxation of grade may be allowed in the qualifying degree for
those belonging to SC/ST/OBC (non-creamy layer)/Differently-
abled and other categories of candidates as per the decision of
the UGC from time to time, or for those who had obtained their
Master's Degree prior to 19th September, 1991. The eligibility
marks of 55% (or an equivalent grade in point scale wherever
grading system is followed) and the relaxation of 5% to the
categories mentioned above are permissible based only on the
qualifying marks without including the grace mark procedures.
7.4 Relaxation for admission to Ph.D programmes.
A relaxation of 5% marks from 55% to 50%, or an equivalent
relaxation of grade may be allowed in the qualifying degree
for those belonging to SC/ST /OBC (non-creamy
layer)/Differently-abled and other categories of candidates as
per the decision of the UGC from time to time;
7.5 All SC/ST /OBC and EWS candidates are required to submit
certificate in respect of their claims from the authorized officers
as notified by the Government of India for the purpose from
time to time.
7.6 The person with Disability (PWD) candidates are required
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to submit a certificate form authorized Medical
Doctors/Hospitals indicating the extent of physical disability as
per the Disability Act 2016. The percentage of disability is duly
verified/recommended by the Chief Medical Officer /Medical
Board of the University before the benefit is extended to the
candidate.
7.7 Candidates belonging to SC/ST/OBC/PWD and EWS
category who are selected on their own merit with General
Category candidates are not counted under reserved quota. In
programmes where viva voce is prescribed candidates
belonging to SC/ST/OBC/PWD/EWS and General Category
will be called for Viva-voce under their respective category at
that stage. Further in final merit, reserved category candidates
qualifying on their own merit should be adjusted in UR
Category as per GoI rules.
7.8 The University has a provision to offer up to 15%
(Supernumerary) of the seats in each programme (other than
M.Phil and Ph.D) of study to Foreign Nationals. These seats
are over and above the intake fixed for each programme of
study.
Note: The admission of Foreign students for M.Phil and Ph.D
programmes may be considered in compliance with UGC
2016 Regulations regarding number of research scholars
faculty (i.e. Professor/Associate Professor/Assistant
Professor) can supervise. Foreign students shall be
offered seats only if seats are left vacant in any discipline
after being offered to Indian candidate who have
appeared in JNUEE.
(emphasis supplied)"
24. In view of the aforesaid decision rendered by the Division Bench of
this Court, and in view of the aforesaid reservation policy incorporated in
the Admission Policy by Jawaharlal Nehru University - respondent No.3, it
appears that the reservations for the persons with disabilities have been
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provided for in accordance with law by the respondent No.3. These
provisions of the Admission Policy have been put in practice by the
respondent No.3.
25. Respondent No.3 has stated in paragraphs 5 to 9 of its additional
affidavit which reads as under:
"5. That in case of courses having less than 9 seats, the
clubbing of seats is done at the respective School/Centre level
so that the qualified PWD candidates are not left out from
getting reservation in certain courses of Schools/Centers. The
said clubbing of seats is only done at the time of declaration of
results and the same leads to increase in number of seats for
PWD students The effect of such clubbing of seats on actual
number of seats available for PWD category students has been
worked out in the Table 1 attached herewith as Annexure-I.
Further, a Table 2 indicating percentage of reserved seats after
clubbing has been attached herewith as Annexure-2.
6. That on perusal of the said Table, it is clear that actual
number of seats meet the mandate of 5% reservation for PWD
category. In case there is no Centre in a School or Special
Centre, seats have been clubbed for science or non-science
schools (For example, Sr. no. VIII-XV of the Table).
7. That while providing reservation after such clubbing in a
school, the PWD candidate who has achieved the highest score
across all the Centers of a School (whose seats have been
clubbed) is offered the reserved seat. In case more than one
seat becomes available for reservation after clubbing in a
particular School the same process is followed to offer the next
seat to highest scorer in other Center within the School to make
equitable reservation in all Centers. In case the clubbing is
required to be done for more than one School, similar process
is followed.
8. That it is pertinent to mention here that Clause 7.1 (b) is a
special operational arrangement made by the University in
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pursuance of the directions of this Hon'ble Court and no such
provision is defined by the UGC or MHRD. The University
sought advice from UGC on the said matter, however, owing to
no response from UGC such a provision of clubbing was
introduced. A copy of the letter dated 30.01.2019 seeking
advice of UGC has been attached herewith as Annexure-3.
9. That in case of any shortfall in programmes other than
M.Phil. and Ph.D., similar process shall be followed for such
programmes and the decision to fill-up the seats from among
the qualified PWD category candidates, wherever available,
may lie with the Vice Chancellor to ensure compliance of the
mandate under Disability Act, 2016."
26. In view of the aforesaid facts of the case, clubbing of the seats have
been done by the respondent No.3 - University. For ready reference,
Annexure-2 to the additional affidavit filed by the respondent No.3 reads as
under:
Program Total No. Seats Aggregate Total Aggregate
of studies of seats reserved percentage Seats percentage
for PWDs out of 100 after after
Clubbing clubbing
of seats
out of 100
M.Phil 326 15 4.60% 22 6.74%
through E-
entrance
M.Phil 40 1 2.50% 2 5%
through
(NET
JRF)
Ph.D. 377 15 3.97% 24 6.36%
through
(JNUEE)
Ph.D. 171 6 3.50% 13 7.60%
through
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(NET
JRF)
(emphasis supplied)
27. In view of the aforesaid facts and circumstances of the case, it appears
that the respondent No.3 has maintained provision of minimum 5%
reservation for PWD category and the same has been mentioned in e-
Prospectus of the respondent No.3 - University which is in consonance with
the provisions of the Rights of Persons with Disabilities Act, 2016.
28. Clause 7.1(b) of the Admission Policy (Annexure P-5 to the memo of
this writ petition) mandates for implementation of reservation for PWD
category students whenever seats are less than 10 by clubbing such seats to
ensure that atleast 1 seat for PWD category may be assigned. From
Annexure-1 to the memo of additional affidavit filed by the respondent
No.3, it is clear that the respondents are maintaining 5% seats for PWD
candidates in horizontal reservation and is distributed across all the
categories - for SC, ST, OBC and UR for M.Phil. and Ph.D. programmes.
29. During the course of hearing, learned counsel for the petitioner
expressed an apprehension that, despite the procedure of clubbing outlined
above, the number of admitted candidates with disability may fall short of
5%, if candidates are not available in the schools/ courses in which
reservation has been provided, although there are candidates with disability
who have applied in other schools/ courses. Learned counsel for respondent
no. 3 - University, upon instructions, assured the Court that the University is
duty-bound to ensure that the minimum reservation of 5% is in fact being
realised. Moreover, it is assured by the learned counsel appearing for
respondent No.3 - University that as per Clause 7.1(b), the respondent -
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University shall abide by the provisions of the Act, 2016 and if still number
of seats are less than 5%, the decision to fill up these seats from among the
qualified PWD category candidates, whenever available, may lie with the
Vice-Chancellor to ensure filling up of maximum seats in PWD category in
compliance with the Rights of Persons with Disabilities Act, 2016.
30. Learned counsel for respondent no. 3- University also assured the
Court that the procedure and mechanism of clubbing will be publicised in
detail in subsequent academic years, to ensure that candidates are fully
aware of the provisions and able to decide which schools and courses to
apply to.
31. In view of the aforesaid facts and reasons, the respondent No.3 -
Jawaharlal Nehru University is complying with the provisions of the Rights
of Persons with Disabilities Act, 2016 in prescribing and in giving
reservations in admission to various schools in Jawaharlal Nehru University.
32. We expect from the respondent No.3 - Jawaharlal Nehru University
that they shall maintain minimum 5% reservation for the persons with
disabilities in accordance with the provisions of the Act, 2016 in future also.
33. Hence, we see no reason to give any further directions in this writ
petition and the same is therefore disposed of with the above observations.
CHIEF JUSTICE
PRATEEK JALAN, J
NOVEMBER 6, 2020/kks
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