Salma Iqbal vs Union Of India
2021 Latest Caselaw 23567 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                        &
                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                              WA NO. 1568 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 23458/2021 OF HIGH COURT OF KERALA dated 28.10.2021


APPELLANTS:

             SALMA IQBAL, AGED 18 YEARS
             D/O.IQBAL, KOONARI HOUSE,
             NEW POST OFFICE, VENGARA, MALAPPURAM,
             PIN - 676 304.

             BY ADVS.HARIS BEERAN
             O.A.NURIYA


RESPONDENTS:

             UNION OF INDIA
             REPRESENTED BY MINISTRY OF EDUCATION, 122-C,
             SHASTRI BHAWAN, NEW DELHI - 110 001.

             SRI.S.MANU, ASG
             SRI.JAISHANKAR V.NAIR




      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1568 of 2021                        :: 2 ::




                                    JUDGMENT

Dated this the 30th day of November, 2021

S.MANIKUMAR, C.J.

Instant writ appeal is preferred challenging the judgment dated

28.10.2021 in W.P.(C)No.23458 of 2021 by which, a learned Single Judge

refused to interfere and to quash the residential requirement laid

down as Clause 2.1.3 in Direct Admission of Students Abroad, 2021

(DASA) scheme. Being aggrieved by the non-interference of the

learned Single Judge, appellant preferred this intra court appeal.

2. Short facts leading to the filing of this intra court appeal are

as follows:- The appellant/writ petitioner, whose father is an NRI and

has been working in Saudi Arabia for the past two decades, has filed

the writ petition seeking to set aside the condition in Ext.P3

mandating Indian Nationals to complete at least two years of

education, inclusive of 11th and 12th or equivalent (not beyond), in a

Foreign Country during the last eight years and further mandating

passing the qualifying examination from abroad, in the DASA Scheme.

3. The appellant/writ petitioner has further sought for a

direction to the respondents to reply to Ext.P7 representation

submitted by the appellant/writ petitioner and to permit the W.A.No.1568 of 2021 :: 3 ::

appellant/writ petitioner to participate in the DASA Scheme for the

Academic Year 2021-22. The appellant/writ petitioner has submitted

that she has completed her Plus Two Course from MES International

School, Pattambi in 2021. Her father is an NRI, who has been working

in Saudi Arabia for the past two decades. The appellant/writ

petitioner completed her secondary schooling in Saudi Arabia. The

appellant/writ petitioner qualified for Joint Entrance Examination

(JEE), Mains (JEE) 2021 for BE/B.Tech and has secured 63025 th rank.

The appellant/writ petitioner desires to secure admission to a

Premier Technology Educational Institution in India, through Direct

Admission of Students Abroad (DASA) program. DASA is a program

framed by the Government of India for admission of Foreign

Nationals/ Persons of Indian Origin/NRIs/Overseas Citizens of India to

undergraduate program in Premier Technology Institutions. For

Direct Admission of Students Abroad (DASA), the respondent/Union

of India has issued Ext.P3 Information Brochure. Clause 2.1.3 of the

said brochure provides that all Foreign Nationals studying in any

country including India or Indian Nationals studying abroad who

fulfill prescribed admission criteria shall be eligible. Prescribed W.A.No.1568 of 2021 :: 4 ::

admission criteria for Indian Nationals shall be at least two years of

education, inclusive of 11th and 12th or equivalent (not beyond), in a

Foreign Country during the last 8 years and must pass the qualifying

examination from abroad. The appellant/writ petitioner is a

candidate who has completed her schooling in a Foreign Nation in

Standards 8, 9 and 10. The appellant/writ petitioner participated in

the qualifying examination which held in India.

4. Prayers sought for in the writ petition are as follows:

"(i) issue a writ in the nature of certiorari or any other appropriate writ, order or direction calling for records leading to the drafting of Exhibit P3 information brochure and set aside the condition mandating Indian Nationals to complete at least two years of education, inclusive of 11th & 12th or equivalent (not beyond), in a foreign country during the last 8 years and further mandating passing the qualifying examination from abroad in the DASA scheme.

(ii) issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to reply to Ext.P7 representation and permit the petitioner to participate in the DASA scheme for the academic year 2021-22.

(iii) allow the writ petition with costs."

5. After considering the rival submissions and materials

available on record, writ court disposed of the writ petition with the

following observations:

W.A.No.1568 of 2021 :: 5 ::

"5. Aggrieved by the condition stipulated in Clause 2.1.3 providing the aforesaid residential requirements, the petitioner has filed Ext.P7 representation before the respondent. Ext.P7 was mailed on 09.10.2021. Unless the respondent consider the issue and take a decision on Ext.P7, the petitioner and similarly situated students will be put in hardship and loss. In such circumstances, that the petitioner is before this Court.

6. The learned ASGI appeared in the writ petition and contested the matter. The learned ASGI controverted all the material allegations made by the petitioner in the writ petition. It was submitted on behalf of the respondent that this is purely a policy matter relating to the sphere of education. Therefore, this Court shall not interfere in the matter and pass orders.

7. I have heard the learned counsel for the petitioner and the learned Assistant Solicitor General of India representing the respondents.

8. The petitioner had her schooling for a considerable period abroad. The petitioner appeared in the JEE Examination and has been ranked in the selected list as 63025th rank. In view of Clause 2.1.3 of Ext.P3 Information Brochure, the petitioner will not be eligible for Direct Admission of Students Abroad (DASA) program of the Ministry of Education. The petitioner alleges that the conditions stipulated in Ext.P3 is highly arbitrary and irrational.

9. As rightly pointed out by the ASGI, this is a matter coming within the realm of policy of the Central Government. Therefore this Court will not be justified in adjudicating the issue involved unless the policy is totally irrational. The petitioner has already approached the respondent highlighting the grievance. In view of the facts and circumstances of the case, this Court is of the considered view that the respondent shall consider the grievance raised by the petitioner in Ext.P7. In that view of the matter, a direction to the respondent is necessary.

The writ petition is therefore disposed of directing the respondent to consider Ext.P7 representation submitted by the petitioner within a period of one month. The entitlement of the petitioner for admission under DASA will be subject to the orders to be passed in Ext.P7."

6. Mr.Haris Beeran, learned counsel for the appellant submitted

that insistence on residential requirement for completion of W.A.No.1568 of 2021 :: 6 ::

qualifying examination has absolutely no nexus to the objective

sought to be achieved by the scheme, which is to encourage

PIO/OCI/NRI/Foreign Nationals to be a part of the Indian educational

system.

7. According to the learned counsel, learned Single Judge ought

to have considered the question of judicial interference in policy

decisions in the light of the judgments passed by the Hon'ble Supreme

Court in Council of Civil Service Union v. Minister of Civil Service

(1984) 3 All ER 935; Union of India v. International Trading Co. (2003) 5

SCC 437; DDA v. Joint Action Committee; Allotee of SFS Flats, (2008) 2

SCC 672; Centre for Public Interest Litigation v. Union of India (2017) 6

SCC 408. The writ court erred in refusing to strike down the

impugned Clause 2.1.3 in the DASA Scheme by not exercising its

power to judicial review on finding the arbitrariness and irrationality

of the said condition.

8. Heard learned counsel for the parties and perused the

materials available on record.

9. Material on record shows that information brochure

regarding the admission under Direct Admission of Students Abroad W.A.No.1568 of 2021 :: 7 ::

(DASA) scheme 2021-22 has been issued in September 2021 fixing the

eligibility of candidates to apply for admission under the Scheme,

which includes that all Foreign Nationals studying in any country

including India or Indian Nationals studying abroad who fulfil

prescribed admission criteria shall be eligible. Prescribed admission

criteria for Indian Nationals shall be at least two years of education,

inclusive of 11th and 12th or equivalent (not beyond), in a Foreign

Country during the last 8 years and must pass the qualifying

examination from abroad.

10. Knowing fully well the said condition, appellant has taken

the Joint Entrance Examination for admission to Engineering Courses.

Thereafter, coming to know that her application under DASA could

not be completed, has filed the writ petition on 21.10.21, for the

abovesaid reliefs. As per the tentative schedule of DASA 2021 UG

Counselling, office of DASA will declare the DASA rank (based on JEE

Main rank declared by NTA) for only those students who have filled

and finally submitted their online registration form for DASA-2021.

11. Reasons assigned by the writ court for declining to grant the

first reliefs sought are as hereunder: "The petitioner had her W.A.No.1568 of 2021 :: 8 ::

schooling for a considerable period abroad. The petitioner appeared

in the JEE Examination and has been ranked in the selected list as

63025th rank. In view of Clause 2.1.3 of Ext.P3 Information Brochure,

the petitioner will not be eligible for Direct Admission of Students

Abroad (DASA) program of the Ministry of Education. The petitioner

alleges that the conditions stipulated in Ext.P3 is highly arbitrary and

irrational. As rightly pointed out by the ASGI, this is a matter coming

within the realm of policy of the Central Government. Therefore this

Court will not be justified in adjudicating the issue involved unless the

policy is totally irrational. The petitioner has already approached the

respondent highlighting the grievance. In view of the facts and

circumstances of the case, this Court is of the considered view that the

respondent shall consider the grievance raised by the petitioner in

Ext.P7. In that view of the matter, a direction to the respondent is

necessary. The writ petition is therefore disposed of directing the

respondent to consider Ext.P7 representation submitted by the

petitioner within a period of one month. The entitlement of the

petitioner for admission under DASA will be subject to the orders to

be passed in Ext.P7."

W.A.No.1568 of 2021 :: 9 ::

12. Though discrimination was raised as a core ground, giving

due consideration to the material on record and the reasons, stated

supra, we do not find any error in the impugned judgment,

warranting interference.

Writ appeal fails and it is dismissed.

SD/-

S.MANIKUMAR CHIEF JUSTICE

SD/-

SHAJI P. CHALY JUDGE jes