Kum. Swati And Ors vs Union Of India And Ors
2022 Latest Caselaw 974 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF JANUARY, 2022

                     BEFORE

       THE HON'BLE MR.JUSTICE E.S.INDIRESH


     WRIT PETITION No.201938 OF 2021 (EDN AD)

BETWEEN:

1.    KUM. SWATI
      D/O SHALIVAN B BAROLE,
      AGED ABOUT 11 YEARS,
      OCC:STUDENT,
      R/O C/O GOPAL REDDY BUILDING,
      H.NO.A/1, NEAR APMC CROSS
      AURAD(B), DIST.BIDAR-585326.
      SINCE MINOR REPRESENTED BY HER NATURAL
      GUARDIAN
      FATHER SRI.SHALIVAN
      S/O BASAVARAJ BAROLE,
      AGED ABOUT 44 YEARS,
      R/O C/O GOPAL REDDY
      BUILDING, H.NO.A/1, NEAR
      APMC CROSS, AURAD(B),
      DIST.BIDAR-585326.

2.    KU. PRASHANT
      S/O MARUTEPPA
      AGED ABOUT 11 YEARS,
      OCC: STUDENT,
      R/O BORGI(J) POST,
      WADAGAON (D), TQ.AURAD,
      DIST.BIDAR-585421.
      SINCE REPRESENTED BY HIS
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     NATURAL GUARDIAN FATHER
     SRI.MARUTEPPA S/O RAMASHETTY,
     AGED ABOUT 39 YEARS,
     R/O BORGI(J) POST,
     WADAGAON(D),
     TQ.AURAD, DIST.BIDAR-585421.

3.   KUM. KANHAIYA
     S/O NARSING
     AGED ABOUT 11 YEARS,
     OCC:STUDENT,
     R/O WANMARPALLI, AURAD (B),
     DIST.BIDAR-585326.
     SINCE MINOR REPRESENTED
     BY HIS NATURAL GUARDIAN
     FATHER SRI.NARSING
     S/O SOPAM RAO,
     AGED ABOUT 38 YEARS,
     R/O WANMARPALLI,
     AURAD (B),
     DIST.BIDAR-585326.

4.   KUM. DARSHAN
     S/O ASHOK
     AGED ABOUT 11 YEARS,
     OCC:STUDENT,
     R/O BEERI (B), TQ.BHALKI,
     DIST.BIDAR-585328.
     SINCE MINOR REPRESENTED
     BY HIS NATURAL GUARDIAN
     FATHER SRI.ASHOK
     S/O MADALAPPA,
     AGED ABOUT 53 YEARS,
     R/O BEERI (B), TQ.BHALKI,
     DIST.BIDAR-585328.

5.   KUM. VEERESH
     S/O ENIL KUMAR
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       AGED ABOUT 11 YEARS,
       OCC:STUDENT,
       R/O POST SANGAMA,
       TQ.KAMALNAGAR,
       DIST.BIDAR.
       SINCE MINOR REPRESENTED
       BY HIS NATURAL GUARDIAN
       FATHER SRI. ENILKUMAR
       S/O SIDRAMAPPA
       HOLASAMUDRE,
       AGED ABOUT 48 YEARS,
       R/O POST SANGAMA,
       TQ.KAMALNAGAR,
       DIST.BIDAR.

6.     KUM. AKSHATA
       D/O NARSAREDDY
       AGED ABOUT 11 YEARS,
       OCC:STUDENT,
       R/O POST ELKAR,
       TQ.AURAD (B),
       DIST.BIDAR-585326.
       SINCE MINOR REPRESENTED
       BY HER NATURAL GUARDIAN FATHER
       SRI.NARASAREDDY
       S/O GUNDREDDY
       AGED ABOUT 39 YEARS,
       R/O POST ELKAR,
       TQ.AURAD(B),
       DIST:BIDAR-585326.

                                  ... PETITIONERS
(BY SMT RATNA N SHIVAYOGIMATH ADVOCATE)

AND:

1.     UNION OF INDIA
       REP BY ITS SECRETARY,
       DEPT. OF SCHOOL EDUCATION AND LITERACY,
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     SHASTRI BHAVAN,
     NEW DELHI-110001.

2.   THE STATE OF KARNATAKA
     REP BY ITS SECRETARY,
     DEPT. OF BACKWARD CLASSES WELFARE,
     M.S.BUILDING,
     BENGALURU-560001.

3.   THE DEPUTY COMMISSIONER (EXAM)
     NAVODAYA VIDYALAYA SAMITHI,
     B.15, INSTITUTIONAL AREA,
     SECTOR 62,
     NOIDA-201307.

4.   THE DEPUTY COMMISSIONER
     JAWAHAR NAVODAYA VIDYALAYA SAMITHI,
     HYDERABAD REGION,
     1-1-10/3, S.P. ROAD,
     SECUNDERABAD-500003.
     TELANGANA.

5.   THE CHAIRMAN AND DEPUTY COMMISSIONER
     JAWAHAR NAVODAYA
     VIDYALAYA SAMITHI,
     BIDAR, DIST.BIDAR-585401.

6.   THE PRINCIPAL
     JAWAHAR NAVODAYA VIDYALAYA,
     BIDAR, DIST:BIDAR-585401.

                                   ... RESPONDENTS

(BY SRI SUDHIR SINGH R VIJAPUR, ASGI FOR
     R1, R3 TO R6
    SRI VIRANAGOUDA BIRADAR, AGA FOR R2 )
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        THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO A) ISSUE A WRIT OR ORDER, WRIT IN THE NATURE OF
CERTIORARI,         EXPUNGING       ITEM   No.   3.7    OF    THE
BROCHURE/PROSPECTUS             FOR    JAWAHAR         NAVODAYA
VIDYALAYA SELECTION TEST 2021, VIDE ANNEXURE-A,
ISSUED BY RESPONDENT No.3 AND ETC.,


        IN   THIS    WRIT   PETITION,      ARGUMENTS         BEING
HEARD,       JUDGMENT       RESERVED,      COMING       ON    FOR
PRONOUNCEMENT OF ORDERS TODAY, THIS COURT MADE
THE FOLLOWING:
                             ORDER

I have heard Smt. Ratna N.Shivayogimath, learned

counsel appearing for the petitioners and Sri Sudhir Singh

R.Vijapur, learned ASGI for the respondents 1, 3 to 6 and

Sri Viranagouda Biradar, learned AGA for the respondent

No.2.

2. Petitioners are selected candidates at the

preliminary stage in the Navodaya Residential School,

Bidar and they are seeking deletion of Item No.3.7 of the

Brochure/Prospectus in the Jawahar Navodaya Vidyalaya

Selection Test 2020-21 issued by respondent No.3. The

main grievance of the petitioners is that respondents 3 to

5 be directed not to insist the petitioners to furnish OBC

certificate under the Government of India, till the State List

is published. It is further averred in the writ petition that

,after the selection of the petitioners, respondent No.6

refused to admit the petitioners for want of prescribed OBC

certificate and being aggrieved by the same, the present

writ petition is filed.

3. Smt. Ratna Shivayogimath, learned counsel for

the petitioners submitted that insisting for OBC certificate

in the prescribed format as produced at Annexure-F by the

respondent-Institution is bad in law. She further contended

that denying the admission after selection by the

respondent-Institution, is not justifiable. She further

submitted that, there is no OBC category in the State of

Karnataka and therefore, denying admission to the

petitioners is contrary to law and therefore, contended that

the said Item No.3.7 in the Brochure/Prospectus requires

to be deleted.

4. Per contra, Sri Sudhir Singh R.Vijayapur,

learned ASGI submitted that the petitioners were selected

based on the conditions stipulated in Item No.3.7 of the

Brochure /Prospectus and appropriate reservation is

provided as per the mandate of Constitution of India with

regard to admission of students to the Navodaya School

and having participated in the selection process, the

petitioners cannot turn around and urge that the said

condition be deleted from the Brochure/Prospectus.

5. In the light of the rival submission made by

both the parties, it is not in dispute that the petitioners

have participated in the written test conducted for the

academic Sessions 2021-22. The selection process is made

as per the provisions contained in Item No. 3.1 of

Brochure. Item No. 3 of the Brochure provides for selection

and admission of candidates. Item No. 3.1 of the Brochure

provides as under.

" 3.1) Selection in the test will not vest any right on the candidate to secure admission into the JNV. At the time of seeking actual admission, each selected candidate will have to produce all relevant certificates, as prescribed by the Navodaya Vidyalaya Samiti. Until admission, the selection is provisional only. Candidates are advised to apply for TC from parent school only after the verification of documents and confirmation of admission by the respective JNV."

(Emphasis supplied) Item No. 3.7 of the Brochure provides as under:

" 3.7) Candidates belonging to the Scheduled Caste (SC), Scheduled Tribe (ST) and Other Backward Class (OBC) will have to produce a certificate of Scheduled Caste/Scheduled Tribe/OBC at the time of seeking admission, if selected. The students selected under OBC quota have to submit OBC certificate as per prescribed format of Central List (Copy Annexured). Such certificate should be obtained from the competent authority before 30th March of the year of seeking admission so that it may be submitted to the Principal of JNV concerned at the time of verification of document. For example, candidates seeking admission during 2021-22 should get the certificate on or before 30th March 2021."

(Emphasis supplied)

6. Perusal of the Item Nos. 3.7, 3.8, 3.9 and 3.10

stipulates that candidates who have been selected under

SC/ST and OBC have to produce the relevant certificates at

the time of the admission. Candidates selected under OBC

have to submit the same in the prescribed format. The

said certificate has to be submitted at the time of

verification of the documents. In similar way, the

candidates selected under the Rural, Physical Disability and

Transgender Category have to submit the relevant records

at the time of the admission. Item No. 3.1 of the Brochure

further substantiate that no selected candidates had

vested right to claim admission into the JNV. In the light

of these provisions, the petitioners have no vested right to

claim admission as of right based on the selection list. It is

well established principle of law that imposition of eligibility

criteria is within the domain of the respondent-Institution

and the selection has to be made in accordance with the

Brochure/Prospects and this Court while executing

jurisdiction under Article 226 of the Constitution of India

cannot interfere with the realm of the respondents.

Petitioners herein are well aware about the Item No. 3.7 of

the Brochure and have participated in the examination and

selected based on the provisions contained in the

Brochure/Prospectus.

7. An identical issue had come up before the High

Court of Madras, in the case of Dr.Sandeep P.S. Vs

Government of India reported in (2020) volume VI Mad

Law Journal 373, wherein, at paragraph 33 of the

judgment, it is held as under:

"33. It is settled law that the prospectus is the vital document which governs the admission procedure. A candidate who participates in the selection process based on the prospectus cannot turn around and challenge the very prospectus or a clause in the prospectus unless it is shown to be illegal or irrational. This court had in a number of cases relating to admissions to postgraduate Medical education has consistently held that the candidates who had applied for admission based on the conditions set out in the prospectus cannot challenge the conditions. Of course in the case on hand the petitioners had approached the court before the first round of counselling had commenced. However the counselling in effect commenced on 01-05-2020 and the candidates were required to furnish their online choices by 08- 05-2020. The first counselling was done on 22-05-

2020. The petitioners had filed the first writ petition on 17-05-2020 and were favoured with an interim order on 26-05-2020. The petitioners were aware of the existence of Clause 4.5 in the handbook even when they had applied for admission. They had chosen to apply and also indicate their choices in

compliance with the requirements of the instructions in the handbook. Only after exercising their choices the petitioners chose to challenge Clause 4.5 on 17- 05-2020. Mr.G.Sankaran, would vehemently contend that since the petitioners had approached the court before the first round of counselling itself, there is no delay and they cannot be non-suited on the ground of delay. I am unable to accept the said submission of the learned counsel for the petitioner for more than one reason. As rightly pointed out by the learned Senior Counsel appearing for the second respondent if the petitioners' challenge is accepted the entire counselling process will have to be restarted in the sense all the candidates who had been allotted a seat in the first round of counselling and who had frozen their seats should also be given an opportunity to take part in the second round of counselling which would necessarily result in further delay in the process which has already been delayed by the pandemic. There are about 700 candidates who had frozen the seats allotted to them in the first round of counselling. If Clause 4.5 is tweaked and they are also allowed to participate in the second round of counselling while retaining the seats allotted to them in the first round those 700 seats should also be shown as seats available in the second round of counselling. The second respondent in its counter affidavit has explained as to how this process accumulates more seats in the mop up round of counselling which go to candidates with lesser comparative merit. The Honourable Supreme Court in Alapati Jyostna and others (Supra) has considered the prevalent situation and after taking note of the fact that nearly 700 candidates had been allotted seats and have frozen their seats had refused to issue any directions for the present year.The Honourable Supreme Court in the said decision has also recorded the assertions made in the response filed by the Medical Council of India that a common counselling or a single online counselling in the coming years would definitely

take care of the grievances. I am therefore of the considered view that it would not be appropriate for this court to interfere with the counselling at this stage for the present year."

8. In the case of Dr.Shikha Aggarwal vs.

Union of India, reported in 2011 SCC Online Del 3538,

Delhi High Court held at paragraph 7 which reads as

under:

"7. It is also a settled legal position that a candidate after participating in the selection process of taking the entrance examination and the counseling process cannot turn around and challenge the same as the rules and guidelines framed by the respondent-Board were within the knowledge of the petitioner before participating in the same and therefore, the petitioner thus waives off her right to challenge the said counseling procedure once having taken the said examination. It would be relevant here to refer to the judgment of the Apex Court in the case of Dhananjay Malik vs. State of Uttranchal (2008) 4 SCC 171 which has reiterated the said legal position in the following words:

"In the present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without

participating in the selection process. This has not been done.

9. In a recent judgment in the case of Marripati Nagaraja v. The Government of Andhra Pradesh : JT2007(12)SC407 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process."

Therefore the petitioner is estopped to challenge the said procedure after participating in the same without any demur. Therefore, this court is of the considered view that any indulgence by this Court at this stage will reverse the entire clock and lead to a chaos, as it will not be the case of the petitioner alone, but other similarly situated candidates with higher rank in the merit list will also be entitled to seek their participation in the second round of counseling. Rules were laid down by the Board well prior to the starting of counseling process and the same were well within the knowledge of the petitioner and as per the counsel for the respondent a well thought and conscious decision is taken by the candidate to not only opt for a particular stream but for a particular institute/hospital in a particular region. Although merit should always be the criteria but this is not the right stage to interfere with the counseling procedure laid down by the respondent - Board."

9. The Orissa High Court in the case of Afr

A.S.Ananya Pradhan vs. Government of India and

others in WP (C) No.16669 of 2020, decided on

28.08.2020 at paragraph 26 held as under:

"26. In view of the factual scenario and legal proposition of law, as discussed above this Court is of the considered view that issuance of notice under Annexure-3 dated 31.03.2020 introducing reservation for OBC category, after issuance of prospectus under Annexure-1, and action taken thereof cannot sustain in the eye of law. Therefore, the same is liable to be quashed and is accordingly quashed. The opposite parties are thus directed to take steps for admission of the selected candidates in Class-VI, pursuant to selection list published in consonance with the prospectus issued under Annexure-I, as expeditiously as possible, preferably within a period of four weeks from today."

(Emphasis supplied)

10. Drawing the principles laid down made in the

aforementioned judgments, it is trite law that the rule of

game cannot be changed after the commencement of the

event. The petitioners have participated in the selection

process knowing fully well the terms and conditions in the

Brochure/Prospectus and thereafter, they cannot be

permitted to challenge the same.

11. In that view of the matter, the petitioners

cannot turn around to say that the said conditions

stipulated in Item No. 3.7 of the Brochure/Prospectus is

bad in law and therefore, the contentions raised by the

learned counsel appearing for the petitioners cannot be

considered. In the light of the principles enunciated and

the decisions referred to above, I do not find any merits in

the writ petition. In the result, the writ petition is

dismissed.

SD/-

JUDGE

SB