Delhi High Court
Tanya Mann vs Registrar, Guru Gobind Singh ... on 25 May, 2021
$~1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25th May, 2021
+ W.P.(C) 8301/2019 with CM APPLs. 34382/2019,
34384/2019, 55279/2019, 55280/2019, 55281/2019, 1287/2020,
1288/2020, 30883/2020, 15858/2021 and 17013/2021
TANYA MANN ..... Petitioner
Through: Mr. Jai Singh Mann, Adv.
versus
REGISTRAR, GURU GOBIND SINGH
INDRAPRASTHA UNIVERSITY & ORS ..... Respondents
Through: Mr. Atul Kumar, Adv. for Ms. Anita
Sahani, Adv. for R-1/GGSIPU.
Mr. Shreesh Chadha, Adv. for
Mr. Gaurang Kanth, Std. Counsel for
NDMC
Mr. Siddarth Agarwal, Adv. for Ms.
Hetu Arora Sethi, ASC, GNCTD.
Mr. Harish Vaidyanathan Shankar,
CGSC with Ms. Kinjal Shrivastava,
Ms. Tejaswini Verma, Adv. for R-5
+ W.P.(C) 1246/2020 with CM APPLs. 4280/2020, 15863/2021
and 17019/2021
ANJALI ..... Petitioner
Through: Mr. Harish Vaidyanathan Shankar,
CGSC with Ms. Kinjal Shrivastava,
Ms. Tejaswini Verma, Adv.
versus
GOVT OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. Shadan Farasat, ASC for R-1.
Mr. Jai Singh Mann, Adv. for R-2.
Mr. Atul Kumar, Adv. for Ms. Anita
Sahani, Adv. for R-4/GGSIPU.
Signature Not Verified
Digitally Signed
By:SHITU NAGPAL W.P.(C) 8301/2019 & W.P.(C) 1246/2020 Page 1 of 13
Signing Date:27.05.2021
05:45:32
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
%
The proceedings in the matter have been conducted through
video conferencing.
1. The petitioners in these two petitions, Ms. Tanya Mann
["Tanya"] and Ms. Anjali ["Anjali"], were both aspirants for
admission to the MBBS course at Guru Gobind Singh Indraprastha
University ["the University"] in the academic year 2019-2020, in the
Delhi Region Other Backward Classes Defence ["DOBCDEF"]
category.
2. By way of W.P.(C) 8301/2019, Tanya challenges the admission
granted to Anjali and another candidate, Atul, in the said category. It
is the contention of Tanya that the aforesaid two candidates did not
qualify for OBC reservation in terms of the relevant Office
Memorandum issued by the Union of India ["the Office
Memorandum"]. Tanya, having secured third position on merit in the
aforesaid category, claims admission in their place. The reliefs in the
writ petition are framed as follows:
"A. to quash the Seat Status Reports- MBBS dated 26-
07-2019 issued and notified by respondent No.1
through their website notified on notice board after
admission counseling conducted on 26-07-2019
(ANNEXURE-P-1) pertaining to DOBCDEF
category for MBBS course for the session 2019-
2020; and/or
B. to direct the respondent No. 1 to withdraw the seat
allotment letters issued by the respondent No.1 in
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respect of private Respondents during admission
counseling conducted on 26-07-2019 pertaining to
DOBCDEF category for MBBS course for the
session 2019-2020; and/or
C. to direct the respondent to issue seat allotment
letter to the petitioner for MBBS course in the
session 2019-2020 in DOBCDEF category; and/or
Any other relief as may be deemed fit and proper in
the facts and circumstances of the case may also be
granted to the petitioner."
3. In the aforesaid writ petition, an order dated 28.08.2019 was
passed recording that Atul had given up his claim to the seat allotted
to him. It was further directed as follows:
"3. Ms. Anita Sahani, Advocate, who appears on
advance notice on behalf of the respondent no.1, informs
me that at present 17 seats fall vacant which includes the
OBC defence category seat that fell vacant on account of
withdrawal by respondent no.4.
4. Ms. Sahani says that the respondent no. 1
University is obliged to follow the directive given in the
order dated 09.05.2017, passed by the Supreme Court, in
W.P.(C)No.267/2017, titled Dar-US-Slam Educational
Trust & Ors. v. Medical Council of India & Ors. Ms.
Sahani, in particular, has drawn my attention to
paragraph 7 of the said order.
5. Having regard to the stand taken by Ms. Sahani,
the respondent No.1 University is directed to complete
the process of filling up the 17 seats (including OBC
defence category seat) as directed by the Supreme Court
vide order dated 9.5.2017.
6. Needless to say, the petitioner will also be
considered along with other eligible candidates."
4. Against the aforesaid order, Tanya filed LPA 556/2019. The
Division Bench, by an order dated 30.08.2019, noted her contention
that she had filed a complaint before the Sub-Divisional Magistrate
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["SDM"], Narela about the certificate issued to Atul and that the
candidature of Atul had been withdrawn. The Court directed the SDM,
Narela to be joined as a party, and further directed him to verify the
legality of the OBC certificate issued to Atul. By the aforesaid order,
the Court directed that Tanya would be given provisional admission
by the University, subject to verification as directed, and subject to the
final outcome of the appeal. The appeal was ultimately disposed of by
a judgment dated 24.10.2019, alongwith a writ petition [W.P.(C)
9605/2019] filed by another candidate for the same seat, Ms. Rashmi
Nagia ["Rashmi"]. The Court found that Rashmi had a superior
entitlement to the seat vacated by Atul, as opposed to Tanya.
Consequently, the writ petition filed by Rashmi was allowed and the
provisional admission granted to Tanya was cancelled. The appeal
filed by Tanya against the interim order dated 28.08.2019 was
dismissed.
5. In the meanwhile, Tanya and her father Mr. J.S. Mann, an
Advocate, filed complaints dated 05.08.2019, 10.09.2019, 07.11.2019
and 11.11.2019, against the validity of the OBC certificate dated
29.12.2014 and the Non-Creamy Layer certificate ["NCL certificate"]
dated 30.06.2019, issued by the Government of NCT of Delhi
["GNCTD"] in favour of Anjali. The GNCTD, acting upon the
complaint dated 07.11.2019 filed by Mr. Mann, passed an order dated
06.01.2020 cancelling Anjali's OBC certificate.
6. W.P.(C) 1246/2020 has been filed by Anjali assailing the
aforesaid cancellation. In the said writ petition, this Court passed an
interim order dated 05.02.2020, directing the University to maintain
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status quo with regard to the seat allocated to her.
7. Having regard to the aforesaid factual situation, the issue which
first requires determination concerns the validity of the order of the
GNCTD dated 06.01.2020, cancelling Anjali's OBC certificate. In the
event Anjali succeeds in the aforesaid writ petition, Tanya's writ
petition will be rendered infructuous. This position is also noted in an
order dated 17.11.2020 passed in both the writ petitions, and is in fact
accepted by learned counsel on all sides.
8. I have heard Mr. Harish Vaidyanathan Shankar, learned counsel
for Anjali, Mr. Shadan Farasat, learned counsel for the GNCTD, and
Tanya's father, Mr. J.S. Mann, Advocate, who made submissions on
her behalf. Mr. Atul Kumar, learned counsel appears on behalf of Ms.
Anita Sahani, learned counsel for the University, who is stated to be
indisposed due to COVID-19. Mr. Mann expresses some urgency on
the ground that Tanya's entitlement to admission depends upon the
fate of Anjali's petition.
9. As the University is not directly concerned with the
determination of Anjali's writ petition, I have heard learned counsel
on that petition first.
10. Anjali challenges the order of the GNCTD dated 06.01.2020, by
which her OBC certificate was cancelled at the instance of Tanya and
her father. In the complaints filed by Tanya and her father, the grounds
urged were that Anjali's family had not been residents of Delhi since
prior to 08.09.1993, as required by the relevant Office Memorandum,
and that Anjali was not entitled to the benefit of reservation as her
family income was in excess of ₹8,00,000/- per annum. It is the
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admitted case that no documentary evidence was submitted by the
complainants. However, the GNCTD issued a notice addressed to
Anjali on 15.11.2019 citing the complaint of Mr. Mann and directed
her to submit the original documents on the basis of which the OBC
certificate was issued, a copy of her identity document, age proof, and
proof of her parents staying in Delhi prior to 08.09.1993, as well as the
caste certificate of her paternal family.
11. Anjali's mother attended the office of the SDM, Patel Nagar on
23.11.2019 and 26.12.2019, but stated that she did not have the
documents in question. It is her case that when she went to the said
office on 26.12.2019, the concerned officer did not attend to her and
she therefore left after three hours. This controversy is not material,
given the events that have transpired thereafter.
12. The GNCTD ultimately passed the impugned order dated
06.01.2020, which is reproduced below:
"Whereas, a complaint vide Dy. No. 14459 dated
07.11.2019 of Sh. J.S. Mann, R/O H.No. 1321, Gali No. 1
Shiv Mandir Colony, Alipur, Delhi-110036 received in
this office against issue of OBC Certificate bearing No.
OBC/90508911224290 Dated 29.12.2014 and NCL
Certificate No. F-10(8)/THE/2019/34683 dated
30.06.2019 to Ms. Anjali D/o Sh. Ved Prakash R/O RZ-45
Near Pali Factory Indra Park Extn. East Uttam Nagar
New Delhi-110059.
And Whereas, in the complaint, it is alleged by Sh.
J.S. Mann, that OBC Certificate and NCL Certificate is
obtained by Ms. Anjali D/o Sh. Ved Prakash by
concealment/ misrepresentation of the facts. He further
stated that Sh. Ved Prakash and his family is original
inhabitant of Haryana and Sh. Ved Prakash is migrated
to Delhi. It is also alleged by him that the annual family
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income of Ms. Anjali is more than ₹ 12,60,000/- which is
more than the criteria of ₹8,00,000/- per annum for
issuance of OBC Certificate.
And Whereas, in order to verify the above facts,
Ms. Anjali D/o Sh. Ved Prakash was called to produce
certificates/ documents for proving her family residence
in Delhi before 1993 vide notice dated 15.11.2019.
And whereas, Ms. Ravita (mother of Ms. Anjali)
W/O Sh. Ved Prakash appeared in this office on
23.11.2019, but she did not submit documents proving
her family residence in Delhi prior to 08.09.1993.
However, she stated that her husband is out of station
and the documents sought by this office available with
him and she requested to provide some more time to
produce the documents and afterward the matter was
fixed for 16.12.2019.
And Whereas, on 16.12.2019, neither Ms. Anjali
nor anyone appeared on her behalf. Accordingly, vide
this office notice dated 18.12.2019, final opportunity was
given to Ms. Anjali D/o Sh. Ved Prakash to submit the
above documents on or before 26.12.2019 by 02.00 PM.
And Whereas, no documents have been submitted
so far by Ms. Anjali D/o Sh. Ved Prakash in the above
matter.
And Whereas, it is established principal that for
issuance of OBC certificate GNCT of Delhi, candidate
must produce proof of residence of parents in Delhi prior
to 08.09.1993 in terms of guidelines issued by the GNCT
of Delhi Which have not been produced by Ms. Anjali D/o
Sh. Ved Prakash despire repeated notices.
Now, therefore, OBC certificate bearing No.
OBC/90508911224290 dated 29.12.2014 issued to
Ms. Anjali D/O Sh. Ved Prakash by the then Tehsildar
(Patel Nagar) stands cancel for all purpose.
This issue with the prior approval of the Competent
Authority."
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13. It is evident from the impugned order that the action of the
GNCTD was predicated only on the inability of Anjali and her family
to produce the documents in question.
14. The GNCTD filed a short affidavit dated 10.02.2020 stating
inter alia that the record pertaining to the issuance of Anjali's OBC
certificate of 2014 was not available. According to the said affidavit, it
is in view of the non-availability of the documents in the GNCTD's
record that Anjali was called upon to supply the documents by notice
dated 15.11.2019.
15. By an order dated 17.08.2020, this Court noted that the OBC
certificate issued to Anjali must have been issued on the basis of some
documentation. It was further noted that the issuance of the OBC
certificate had been challenged by Tanya because she is a claimant to
the seat presently occupied by Anjali, who had already completed one
year of the MBBS course at the University. Noting the aforesaid
contentions in the counter affidavit of the GNCTD, the Court observed
as follows:
"5. It is odd that an official file should just vanish into
thin air. If it did, what action was taken by the EM/SDM
is not known. Who was the record keeper? When was its
misplacement realised? Was an internal inquiry initiated
or was a complaint registered? There is no information at
all in this regard. Therefore, the statement on behalf of
the SDM that the OBC Certificate was issued
erroneously, cannot ex facie, be sustained. It would be
proper to examine what was the consideration which
went into the issuance of the OBC Certificate in the first
place. The Court is informed that the aforesaid OBC
certificate, was revalidated by another SDM in the year
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2019. The latter revalidation would, certainly, have been
based on some records.
6. Let the State file an appropriate affidavit in this regard
before the next date."
16. Pursuant to this order, the GNCTD filed a further affidavit dated
29.09.2020, in which it was stated as follows:
"3. That it is submitted that the OBC Certificate
records pertaining to the year December-2014
were maintained only in physical form and are
currently stored at the Certificate Section Branch
of the Sub-Division of Patel Nagar at Old Office
situated at Old Middle School Building Ramupra,
Delhi-110035. The said records were managed by
the concerned record keeper, who was responsible
for indexing and arranging the said records.
4. That the Respondent No.1 realised the records of
the Petitioner were missing/untraceable when a
complaint was received from Sh. J.S. Mann,
wherein he alleged that Ms. Anjali has obtained
OBC Certificate by concealment
/misrepresentation of the facts and her family is
original inhabitant of Haryana and has migrated
to Delhi much later then the cut of year, 1993.
5. That I was posted in SDM Office Patel Nagar in
December 2019 and hence was unaware of the
record keeper in 2014.
6. Accordingly, an attempt has been made to trace
the record keeper for 2014 (which is the relevant
year in this case), as it is not possible to trace the
file without the assistance of the record keeper.
7. To this end, a letter dated 28.08.2020 was
addressed to the Office Superintendent (Admin)
requesting him to provide the contact details of the
record keeper posted at the Certificate Section
Branch of the Sub-Division of Patel Nagar in 2014.
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A copy of the letter dated 28.08.2020 sent by the
Tehsildar, Patel Nagar to the Office
Superintendent is annexed herewith as Annexure
A-1.
8. That the reply was received from the Office
Superintendent (Admin) on 31.08.2020 informing
that the record keeper in 2014 retired on
31.07.2016 and passed away on 14.06.2019. A
copy of the letter dated 31.08.2020 sent by the
Office Superintendent (Admin) to the Tehsildar,
Patel Nagar is annexed herewith as Annexure A-2.
9. It is humbly submitted that without the assistance
of the concerned record keeper, it is not possible to
trace the files for 2014 from the record room at
Old Office, situated at Old Middle School Building
Rampura, Delhi-110035. This office shifted to Plot
No.3 Shivaji Place, Raja Garden New Delhi-
110027 in the month of August-2018 from Old
Middle School Building Rampura.
xxxx xxxx xxxx
12. Thus, it is humbly submitted that the record for the
year 2014 pertaining to OBC Certificates is not
traceable as the concerned record keeper for that
time has passed away. In such circumstances, the
Petitioner may be called upon to provide the
documents based on which the Petitioner had
obtained the OBC Certificate so that it can be
assessed whether the same was correctly granted
or not."
17. The GNCTD filed a further affidavit dated 11.11.2020, stating
that the records relating to the NCL certificate dated 03.06.2019 were
also not traceable.
18. However, at the hearing on 10.03.2021, it was pointed out by
Mr. Farasat that the Department had belatedly been able to locate the
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documents filed by Anjali's family for issuance of the OBC
certificate. The said documents have been placed before the Court by
way of an additional affidavit.
19. I am of the view, at the outset, that the manner in which the
GNCTD proceeded to cancel Anjali's OBC certificate was
unsustainable. The certificate was issued in the year 2014. Complaints
were received in 2019 as to the validity of the certificate, but without
any material evidence being placed by the complainant, so as to
support even a prima facie conclusion. The record of the GNCTD
itself was untraceable. Other than a bare allegation, there was no basis
for the GNCTD to initiate the process for cancellation of Anjali's
OBC certificate. However, the onus was put entirely on Anjali to
produce the record which had been submitted by her family five years
prior. There is no finding of fraud or misrepresentation in the
impugned order, which proceeds only on the lack of records. The
contention of the GNCTD in paragraph 3.7 of the affidavit dated
10.02.2020, regarding fraud and misrepresentation on the part of
Anjali or her family, is not borne out by the order itself. Although Mr.
Farasat candidly stated that no procedure has been laid down by the
GNCTD for cancellation of such documents, the procedure adopted in
the present case, particularly when it comes to the cancellation of a
certificate already issued, cannot be regarded as fair or reasonable.
20. Further, the situation now is that the basis upon which the
impugned order was passed, no longer exists. The documentary basis
for the certificate has come to light from the GNCTD's records itself.
The matter cannot then be left to rest at the cancellation predicated on
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non-availability of the record, either with Anjali or with the GNCTD.
21. The impugned order dated 06.01.2020 is therefore liable to be
set aside.
22. Mr. Farasat submits that the GNCTD may be permitted to
reconsider the issue and take a fresh decision in accordance with law.
Mr. Mann however submits that Anjali and her family did not produce
any documents before the authorities in response to the complaint, and
that no such documents have been produced before this Court either.
As documents have now been traced by the GNCTD, it is permitted to
reconsider the matter.
23. However, having regard to the aforementioned peculiar features
of this case, it is directed that, prior to taking any further action, the
matter be placed before the Chief Secretary, GNCTD for consideration
of the following issues:
a. The present case reveals a very serious and far reaching issue
with regard to the maintenance of records by the GNCTD. The
affidavits extracted above make it clear that records are not
being maintained in a manner which is administratively
efficient or secure. It is astounding, to say the least, that the
GNCTD should state on affidavit that it is unable to trace
records due to the death of a particular record keeper, who had
in any event since retired. It need not be emphasised that this
indicates serious systemic failures which require attention at the
highest administrative level. In the context of the present case
itself, it may be noted that Clause 5(a) of the guidelines dated
07.03.2017 relating to the issuance of OBC certificates
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(annexed to the affidavit of the GNCTD dated 10.02.2020),
provides that an OBC certificate is permanent in nature and its
record is kept securely.
b. The Chief Secretary will also examine whether the action taken
on the complaint of Tanya and her father was in conformity
with the administrative practices of the GNCTD and will direct
action to be taken against the erring officers, if necessary.
24. In the event the GNCTD considers it necessary to enter into a
de novo exercise in this regard, it will issue a fresh show cause notice
to Anjali, to enable her to file a reply, alongwith any documents she
wishes to rely upon, and grant a hearing to the concerned parties
before passing an order. Mr. Vaidyanathan submits that the GNCTD
has no jurisdiction or authority to review the certificate already issued.
It is open to Anjali to raise this contention in the event the matter is re-
opened by the GNCTD. This order is also without prejudice to the
rights of the parties to take their remedies in accordance with law
against any order which may be passed by the GNCTD pursuant to
these directions.
25. In view of the fact that the cancellation of Anjali's OBC
certificate has been set aside by the aforesaid order, the relief sought
by Tanya in W.P.(C) 8301/2019 does not survive.
26. Both the writ petitions, alongwith pending applications, are
disposed of in terms of the aforesaid directions.
PRATEEK JALAN, J
MAY 25, 2021
'hkaur'
Signature Not Verified
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Signing Date:27.05.2021
05:45:32
