Sonakshi vs Union Of India
2021 Latest Caselaw 7175 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 7473/2020

Harshita D/o Radhakishan, Aged About 10 Years, C/o Nirma Constable 565Q No. 43 Police Lines Jaisalmer - 345006 Through Her Natural Guardian Radhakishan S/o Faglu Ram Aged About 48 Years, R/o Dhaka Ki Dhani, Station Area, Lohawat, Bishnawas, Phalodi Jodhpur.

----Petitioner Versus

1. Union Of India, Through The Secretary, Department Of School Education And Literacy, Ministry Of Human Resource Development, Shastri Bhawan, Government Of India, New Delhi.

2. The Commissioner, Navodaya Vidyalaya Samiti B-15, Sector 62, Institutional Area, Noida, Up.

3. The Deputy Commissioner (Exam), Navodaya Vidyalaya Samiti B-15, Sector 62, Institutional Area, Noida, Up.

4. The Principal, Jawahar Navodaya Vidyalaya, Po Mohangarh, District Jaisalmer, Rajasthan.

----Respondents Connected With (2) S.B. Civil Writ Petition No. 5868/2020

1. Aakansha Kumari D/o Shri Sohan Lal, Aged About 10 Years, Minor Through Her Mother Smt. Roshni W/o Shri Sohan Lal, Aged About 36 Years, Resident Of Village Kuda Post Panchla, Tehsil Sanchore District Jalore.

2. Ravina D/o Shri Sharvan Kumar, Aged About 10 Years, Minor Through Her Father Shri Sharvan Kumar S/o Shri Bhagwana Ram, Aged About 28 Years, Resident Of Village Akoli, Tehsil Chitalwana, District Jalore.

3. Rakshita D/o Shri Hariram, Aged About 10 Years, Minor Through Her Father Hariram S/o Shri Sonaram, Aged About 43 Years, Resident Of Village Fagotra, District Jalore.

----Petitioners Versus

1. Commissioner, Navodaya Vidyalaya Samiti, B 15 Industrial Area, Sector 62 Noida (U.p.) Through It's

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Regional Office Jaipur Region, 18 Sangram Colony, Mahaveer Marg, C Scheme, Behind Maharani Girls College, Jaipur (Raj.).

2. Principle, Jawahar Navodaya Vidyalaya, Jaswantpura, District Jalore.

3. District Collector, Jalore.

----Respondents (3) S.B. Civil Writ Petition No. 5984/2020

1. Bajrang S/o Mahipal, Aged About 10 Years, R/o Vpo Edvipal, Jaisla, Tehsil Bap, District Jodhpur Through His Natural Guardian Mahipal S/o Bhagirath Ram, R/o Vpo Evdipal, Jaisla, Tehsil Bap, District Jodhpur.

2. Vikram Siyag S/o Manohar Ram, Aged About 11 Years, R/o Jamba Ki Dhani, Jamba, District Jodhpur Through His Natural Guardian Manohar Ram S/o Boga Ram, R/o Jamba Ki Dhani, Jamba, District Jodhpur.

3. Anita D/o Mangilal, Aged About 12 Years, R/o Sajjaniyon Ki Dhani, Phalodi, District Jodhpur Through Her Natural Guardian Mangilal S/o Chunra Ram R/o Sajjaniyon Ki Dhani, Phalodi, District Jodhpur.

4. Kuldeep Saran S/o Mohan Ram, Aged About 11 Years, R/o Jaisla, Tehsil Bap, District Jodhpur Through His Natural Guardian Mohan Ram S/o Harlal, R/o Jaisla, Tehsil Bap, District Jodhpur.

5. Piyush S/o Omprakash Khilery, Aged About 11 Years, R/o Jaisla, Tehsil Bap, District Jodhpur Through His Natural Guardian Omprakash Khilery S/o Ramrakh, R/o Jaisla, Tehsil Bap, District Jodhpur.

6. Ravina D/o Rameshwarlal, Aged About 10 Years, R/o Village Mandor, Malam Singh Ki Sidh, District Jodhpur Through Her Natural Guardian Rameshwarlal S/o Alsi Ram R/o Village Mandor, Malam Singh Ki Sidh, District Jodhpur.

7. Manish Isharwal S/o Hari Ram, Aged About 12 Years, R/o Jaisla, District Jodhpur Through His Natural Guardian Hari Ram S/o Thakra Ram, R/o Jaisla, District Jodhpur.

8. Khushi D/o Hansraj Khawa, Aged About 10 Years, R/o Raneri, Tehsil Bap, District Jodhpur Through Her Natural Guardian Hansraj Khawa, R/o Raneri Tehsil Bap, District Jodhpur.

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9. Pravin S/o Hajari Ram, Aged About 10 Years, R/o Godaron Ki Dhani, Palina, Tehsil Lohawat, District Jodhpur Through Natural Guardian Sh Hajari Ram S/o Moga Ram, R/o Godaron Ki Dhani Palina, Tehsl Lohawat, District Jodhpur.

10. Sachin S/o Shaitana Ram, Aged About 10 Years, R/o Dhuliya (Jajuda Vas) Tehsil Pokhran, District Jaisalmer, Through His Natural Guardian Shaitana Ram S/o Bharmal Ram, R/o Dhuliya (Jajuda Vas) Tehsil Pokhran, District Jaisalmer.

11. Shivam S/o Bansilal, Aged About 10 Years, R/o Dhuliya (Jajuda Vas) Tehsil Pokhran, District Jaisalmer, Through His Natural Guardian Bansilal, R/o Dhuliya (Jajuda Vas Tehsil Pokhran , District Jaisalmer.

----Petitioners Versus

1. State Of Rajasthan, Through The Secreary, Department Of School Education And Literacy, Ministry Of Human Resource Development, Shastri Bhawan, Government Of India, New Delhi.

2. The Commissioner, Navodaya Vidyalaya Samiti B-15, Sector 62, Institutional Area, Noida, Up.

3. The Deputy Commissioner (Exam), Navodaya Vidyalaya Samiti B-15, Sector 62, Institutional Area, Noida, Up.

4. The Principal Jawahar Navodaya Vidyalaya, P.o. Tilwasni, Bhavi, District Jodhpur, Rajasthan.

5. The Principal Jawahar Navodaya Vidyalaya, Po Mohangarh, District Jaisalmer, Rajasthan.

----Respondents (4) S.B. Civil Writ Petition No. 6607/2020

1. Ravindra Vishnoi S/o Sharwan Kumar, Aged About 10 Years, Minor Through His Natural Guardian Father Shri Sharwan Kumar S/o Shri Arjun Ram Age 35 Years, Resident Of Sati Mata Gali, Kalandri, District Sirohi (Raj.).

2. Khushveer Vishnoi S/o Deva Ram, Aged About 10 Years, Minor Through His Father Shri Devaram S/o Shri Fusaram Age 45 Years, Resident Of Vishnu Nagar Ki Dhani, Luni, District Jodhpur.

                                                                 ----Petitioners



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                                  Versus

1. Union Of India, Through Ministry Of Human Resources Department (Hrd) New Delhi.

2. Deputy Commissioner (Exam), Navodaya Vidyalaya Samiti, Department Of School Education And Literacy, Govt. Of India, B-15 Institutional Area, Sector 62, Noida (Up).

3. Principal, Jawahar Navodaya Vidhyalaya, Sirohi.

4. Deputy Commissioner, Navodaya Vidyalaya Samiti, Jaipur.

----Respondents (5) S.B. Civil Writ Petition No. 6611/2020 Sonakshi D/o Ramswaroop, Aged About 10 Years, Minor Through Her Natural Guardian Father Shri Ramswroop S/o Raja Ram, Age 34 Years, Resident Of Police Station, Pachpadra, District Barmer.

----Petitioner Versus

1. Union Of India, Through Ministry Of Human Resources Department (Hrd) New Delhi.

2. Deputy Commissioner (Exam), Navodaya Vidyalaya Samiti, Department Of School Education And Literacy, Govt. Of India, B-15 Institutional Area, Sector 62, Noida (Up).

3. Principal, Jawahar Navodaya Vidhyalaya, Pachpadara, Barmer.

4. Deputy Commissioner, Navodaya Vidyalaya Samiti, Jaipur.

----Respondents (6) S.B. Civil Writ Petition No. 6613/2020

1. Sandeep S/o Shri Jagdish, Aged About 10 Years, Minor Through His Shri Jagdish S/o Shri Sukhram, Aged About 43 Years, Resident Of Village Sindhswa Chouhan, District Barmer.

2. Karina Siyak D/o Ganpat Lal Siyak, Aged About 10 Years, Minor Through Her Father Shri Ganpat Lal Siyak S/o Shri Mohanlal, Aged About 34 Years, Resident Of Village Sewada, Tehsil Raniwara, District Jalore.

3. Sangeeta D/o Shri Punmaram, Aged About 10 Years, Minor Through Her Father Punmaram S/o Shri

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Bhagwanaram, Aged About 38 Years, Resident Of Village Kooka, District Jalore.

----Petitioners Versus

1. Union Of India, Through Ministry Of Human Resources Department (Hrd) New Delhi.

2. Deputy Commissioner (Exam), Navodaya Vidyalaya Samiti, Department Of School Education And Literacy, Govt. Of India, B-15 Institutional Area, Sector 62, Noida (Up).

3. Principal, Jawahar Navodaya Vidhyalaya, Jaswantpura, Jalore.

4. Deputy Commissioner, Navodaya Vidyalaya Samiti, Jaipur.

----Respondents (7) S.B. Civil Writ Petition No. 6632/2020 Chhaya Vishnoi D/o Omprakash, Aged About 10 Years, Minor Through Her Natural Guardian Father Shri Omprakash S/o Mangla Ram, Age 33 Years, Resident Of Guneshaniyo Ki Dhani, Tehsil Dhorimanna District Barmer.

----Petitioner Versus

1. Union Of India, Through Ministry Of Human Resources Department (Hrd) New Delhi.

2. Deputy Commissioner (Exam) Navodaya Vidyalaya Samiti, Department Of School Education And Literacy, Govt. Of India, B-15 Institutional Area, Sector 62, Noida (Up).

3. Principal, Jawahar Navodaya Vidhyalaya, Pachpadara, Barmer.

4. Deputy Commissioner, Navodaya Vidyalaya Samiti, Jaipur.

----Respondents (8) S.B. Civil Writ Petition No. 6688/2020 Kamlesh Vishnoi S/o Savarup Ram, Aged About 10 Years, Minor Through Is Natural Guardian Father Shri Savarup Ram S/o Dhukal Ram, Age 34 Years, Resident Of Sahiba Nagar, Doli Khurd, Pachpadra District Bamer.

                                                                 ----Petitioner
                                 Versus


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1. Union Of India, Through Ministry Of Human Resources Department (Hrd) New Delhi.

2. Deputy Commissioner (Exam) Navodaya Vidyalaya Samiti, Department Of School Education And Literacy, Govt. Of India, B-15 Institutional Area, Sector 62, Noida (Up).

3. Principal, Jawahar Navodaya Vidhyalaya, Jojawar, Pali.

4. Deputy Commissioner, Navodaya Vidyalaya Samiti, Jaipur.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. Kunal Bishnoi
                                Mr. Hapu Ram Bishnoi
For Respondent(s)         :     Mr. Rajendra Katariya
                                Mr. Gaurav Thanvi
                                Mr. Avinash Acharya



                     JUSTICE DINESH MEHTA

                              CAV Judgment

Reserved on                            :::                         03/03/2021
Pronounced on                           :::                        15/03.2021

1. The present group of writ petitions have been filed by the

petitioners, inter alia, challenging action of cancellation of their

school admissions on the ground that their caste(s) do not find

mention in the list of backward classes issued by the Central

Government.

2. As all the writ petitions involve common facts and questions

of law, they are being disposed of conjointly. However, for the

purpose of narration, facts of SBCWP No.7473/2020, Harshita Vs.

Union of India, are being taken into consideration.

3. Before adverting to the casespecific facts, it will be apt to

adumbrate the features of the schools in question:-

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3.1 The Government of India introduced Jawahar Navodaya

Vidhyalayas (for short, 'the JNVs') with a view to augment

education in line with the National Education Policy, 1986.

According to the prospectus issued by the respondents, there are

661 sanctioned Navodaya Vidhyalayas (out of which 636 are

functional) spread in 28 States and 7 Union Territories.

3.2 The JNVs are co-educational residential schools fully aided

and controlled by the Union of India through an autonomous

organization, called 'Navodaya Vidhyalaya Samiti'.

3.3 Admissions to JNVs are given through admission test

conducted by Central Board of Secondary Education, held annually

on All India basis at block and district level.

3.4 These schools, which are from 6 th Standard to 12th Standard,

are established with an objective of excellence coupled with equity

and social justice and to promote good quality modern education

including strong component of culture, inculcation of values,

awareness of environment, adventurous activities and physical

education.

3.5 The scheme gives priority to rural students and with that

object in mind, it provides that at least 75% seats would be filled

by rural children, with a further stipulation that 1/3rd of total

seats will be for girl students. The scheme also provides

reservation.

3.6 As per prospectus issued for Admission Test, 2020, following

types of reservation were envisaged:-

"Reservation of Seats.-

(a) At least 75% of the seats in a district are filled by candidates selected from rural areas and remaining seats are filled from urban areas of the district.

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(b) Reservation of seats in favour of children belonging to Scheduled Castes and Scheduled Tribes is provided in proportion to their population in the district concerned provided that in no district, such reservation will be less than the national average (15% for SC and 7.5% for ST) but subject to maximum of 50% for both the categories (SC & ST) taken together. These reservations are interchangeable and over and above the candidates selected under open merit.

(c) Minimum One third of the total seats are filled by girls.

(d) There is a provision for reservation for Divyang children (i.e. Orthopedically Handicapped, Hearing Impaired and Visually Handicapped) as per GOI norms.

'Blindness' refers to a condition where a person suffers from any of the following namely:

(i) total absence of sight; or

(ii) Visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or

(iii) Limitation of the field of vision subtending an angle of 20 degree or worse.

'Hearing Impairment' means loss of sixty decibels or more in the better ear in the conversational range of frequencies.

'Locomotor disability' means disability of the bones joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy.

'Person with disability' means a person suffering from not less than forty percent of any disability as certified by a medical authority."

4. For admission in Class VI for academic year 2020-21, the

candidates of State of Rajasthan were required to fill-in their

application forms by 15.09.2019, for the admission tests that were

scheduled on 11.01.2020.

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5      The petitioner, being aspirant of getting admission in Jawahar

Navodaya Vidhyalaya, Jaisalmer, submitted her application form

vide Registration No.20140100009, reflecting her category as

OBC.

6. Admission card came to be issued to the petitioner showing

her category as OBC for admission test to be held between 11.30

a.m. and 1.30 p.m. on 11.01.2020.

7. Before the result could be declared, a notice dated

31.03.2020 came to be issued by the Navodaya Vidhyalaya

Samiti, stating/intimating that consequent to acceptance of

recommendations of the Parliamentary Committee on Welfare of

OBCs (2019-20) by the competent authority, partial modification

has been made in the reservation policy for admission to Class VI

to Jawahar Navodaya Vidhyalaya Selection Test and accordingly

reservation to OBC students would be given from the academic

session 2020-21.

8. It will be apposite to reproduce relevant extract of above

notice:-

"Reservation of seats for SC and ST students shall be made in proportion to their population in the district concerned (subject to minimum of National average and maximum of 50% for both the categories taken together) and 27% reservation shall be provided to the OBC students over and above the reservation for SCs and STs.

All other existing reservations including reservations for Girls, Rural, Divyang etc., will remain unchanged. The reservations to the OBC students shall be implemented as per Central List, as applicable from time to time."

9. The petitioner appeared in the written examination and was

declared successful, her name found mention in the list of selected

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candidates uploaded on the official website on 13.05.2020; the

petitioner was given admission under the Rural Backward Class

quota for school at Jaisalmer.

10. When the petitioner produced her Caste (OBC) Certificate,

the respondents found that such Certificate is as per State list of

OBC's and not as per the list issued by the Central Government.

11. Apprehending that her admission would be cancelled, the

petitioner has preferred the present writ petition, inter alia, with a

prayer that notice dated 31.03.2020 be quashed as it restricts

applicability of reservation of OBC candidates as per the central

list.

12. However, immediately after filing of the writ petition, the

petitioner came to receive a communication dated 01.09.2020,

indicating therein that since the petitioner (being Vishnoi by

caste), has failed to produce OBC Certificate of Central

Government, her admission stands cancelled.

13. By way of an amendment application dated 04.09.2020, the

petitioner has placed the order dated 01.09.2020 on record while

also incorporating challenge to the said order.

14. On 04.09.2020, this Court, while issuing notices, had stayed

effect and operation of the above referred order dated

01.09.2020, cancelling petitioner's selection/admission in the JNV,

Jaisalmer.

15. Though the matters have come up for consideration of

application under Article 226(3) of the Constitution of India,

however, looking to the issue involved, with the consent of

concerned counsel, the matters were heard finally.

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16.   Mr.   Kunal    Bishnoi,      learned       counsel       for      the   petitioner,

submitted that candidates belonging to Vishnoi Community and

certain other castes (which find mention in the State's List of

Backward Classes but not enumerated in the Central List) were

being considered against the seats reserved for OBC Candidates,

but in light of the notice dated 31.03.2020, they are not being

considered for reservation. He added that the petitioner, who is

from Vishnoi Community (enlisted in the State List of Backward

Class), was considered and given admission against the seats

earmarked for Rural Backward Class, has now been illegally

scooped out in pursuance of notice dated 31.03.2020.

17. It was argued by learned counsel that the respondents'

action of changing the rules of game, once the game has begun is

clearly illegal and contrary to settled canons of law.

18. He also argued that by virtue of notice dated 31.03.2020,

rights of all the OBC Candidates, who are not OBC Candidates as

per Central List, have been curtailed without any basis, and the

notice dated 31.03.2020, which is per se arbitrary and

discriminatory, deserves to be quashed.

19. It was also argued that the respondents have unilaterally

changed the criteria for admission without any prior intimation and

the petitioner, who has been given admission, has been left in a

lurch.

20. Mr. Avinash Acharya, learned counsel appearing for the

respondents, on the other hand, argued that as a matter of fact,

there was no reservation for the OBC Candidates and it was

introduced for the first time consequent to acceptance of

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recommendation of the Parliamentary Committee for Welfare of

OBCs in March, 2020.

21. He invited Court's attention towards the language used in the

notice dated 31.03.2020, to buttress his stand that provisions for

reservation to OBC students in admission to Class VI in JNVs, has

been introduced from the session 2020-21 onwards.

22. He emphasized that the notice dated 31.03.2020 is very

clear and categorical that reservation to the OBC students shall be

implemented as per central list, as applicable from time to time,

hence petitioner, who has been given admission wrongly, cannot

claim any right.

23. Learned counsel argued that as a matter of fact, grievance

was raised by certain candidates in other High Courts against

grant of reservation to OBCs vide notice dated 31.03.2020.

24. He read the order (interim) dated 04.08.2020, passed by the

Karnataka High Court in SBCWP No.10348/2020 : Rohit K.B. Vs.

Union of India, and submitted that Karnataka High Court had

directed the respondents to accord admission to the private

respondents (in the said writ petitions) without insisting on the

OBC Caste Certificate issued under the Central Government OBC

Caste list and pointed out that against the interim order aforesaid,

an SLP was filed and in Special Leave to Appeal No.12473/2020,

Hon'ble the Supreme Court has stayed operation of the judgment,

subject to a stipulation that the students already admitted

pursuant to the impugned order, will not be disturbed.

25. Heard.

26. Upon perusal of prospectus issued for Entrance Test, 2020

(Annex.1), it is clear that there was no reservation, so far as OBC

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Category Candidates are concerned. Undeniably, the same came

into being only consequent to notice dated 31.03.2020.

27. It will be worthwhile to make a reference of judgment dated

28.08.2020, passed by Orissa High Court in SBCWP

No.16669/2020 : A.S. Ananya Pradhan Vs. Government of India.

Dealing with the same controversy, Orissa High Court has held

that the issuance of notice dated 31.03.2020 introducing

reservation for OBC Category after issuance of prospectus is

unsustainable.

28. It is necessary to take note of the fact that the writ petition

(mentioned in para No.24 above), in which Karnataka High Court

had granted interim order on 04.08.2020, has been finally allowed

by the said Court by a detailed judgment dated 11.11.2020.

Operative portion of said judgment reads as under:-

"In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the impugned order whereby reservation was sought to be introduced for the OBC Category; the selection of the petitioners and other candidates shall be accomplished on the basis of merits excluding and ignoring the reservation for the OBC category and if the petitioners are otherwise eligible, shall be admitted to the respective courses, forthwith and report compliance to the Registrar General of this Court, without brooking any delay.

The answering parties namely the Executive Officer of the Navodaya Vidyalaya Samithi, the jurisdictional Deputy Commissioner of the district and the Principals of the Navodaya Schools in question shall be held personally liable for non-implementation of the writ of this court."

29. A reading of the judgment of Orissa High Court in the A.S.

Ananya Pradhan (supra) and Karnataka High Court in the case of

Rohit K.B. (supra), reveals that the High Courts have even

quashed the notice dated 31.03.2020 to the extent it provides

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reservation to OBC Students, while observing that since

prospectus issued for academic session 2020-21 did not provide

any reservation for OBC Category Candidates, no reservation can

be provided. It has been held inter alia that as the process of

admission has begun and even admission tests have been held,

reservation cannot be provided to OBC Candidates.

30. This Court is in agreement with the view taken by the

Karnataka High Court that rules of admission cannot be changed

once the process has set in motion. The line of argument

advanced by Mr. Bishnoi is correct, but the same applies to the

detriment of his clients. The respondents were not justified in

introducing the reservation to OBC Candidates abruptly, by notice

dated 31.03.2020, when prospectus did not contemplate any such

reservation and more particularly, when the admission tests had

been held (11.01.2020).

31. But, cases in hands involve a rather complex question - the

petitioners herein are backward class (BC's) as per the State List

and not as per the Central List. They have called upon this Court

to pronounce as to whether the notice dated 31.03.2020, which

restricts OBC Reservation to the students of castes incorporated in

the Central List, is legally sustainable?

32. In this regard, Central Educational Institutions (Reservation

in Admission) Act, 2006 (for short, 'the Act of 2006') becomes

significant. The following provisions of the Act of 2006 need

specific mention and thus, they are being reproduced hereunder:-

"2. Definitions.-

(d) Çentral Educational Institution' means--

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      (i)     a university established or incorporated by
              or under a Central Act;
      (ii)    an institution of national importance set up
              by an Act of Parliament;

(iii) an institution, declared as a deemed University under section 3 of the University Grants Commission Act, 1956 (3 of 1956), and maintained by or receiving aid from the Central Government;

(iv) an institution maintained by receiving aid from the Central Government, whether directly or indirectly, and affiliated to an institution referred to in clause (i) or clause (ii), or a constituent unit of an institution referred to in clause (iii);

(v) an educational institution set up by the Central Government under the Societies Registration Act, 1860 (21 of 1860).

(g) 'Other Backward Classes' means the class or classes of citizens who are socially and educationally backward; and are so determined by the Central Government."

"3. Reservation of seats in Central Educational Institutions.-

The reservation of seats in admission and its extent in a Central Educational Institution shall be provided in the following manner; namely:-

(i) out of the annual permitted strength in each branch of study or faculty, fifteen per cent, seats shall be reserved for the Scheduled Castes;

(ii) out of the annual permitted strength in each branch of study or faculty, seven and one half per cent, seats shall be reserved for the Scheduled Tribes;

(iii) out of the annual permitted strength in each branch of study or faculty, twenty- seven per cent, seats shall be reserved for the Other Backward Classses.

Provided that the State seats, if any, in a Central Educational Institution situated in the tribal ares referred to in the Sixth Schedule to the Constitution shall be governed by such reservation policy for the

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Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, as may be specified, by notification in the Official Gazette, by the Government of the State where such institution is situated:

Provided further that if there are no State seats in a Central Educational Institution and the seats reserved for the Scheduled Castes exceed the percentage specified under clause (i) or the seats reserved for the Scheduled Tribes exceed the percentage specified under clause (ii) or the seats reserved for the Scheduled Castes and the Scheduled Tribes taken together exceed the sum of percentages specified under clause (i) and (ii), but such seats are--

(a) less than fifty per cent, of the annual permitted strength on the date immediately preceding the date of commencement of this Act, the total percentage of the seats required to be reserved for the Other Backward Classes under clause (iii) shall be restricted to the extent such sum of percentages specified under clauses (i) and

(ii) falls short of fifty per cent, of the annual permitted strength;

(b) more than fifty per cent, of the annual permitted strength on the date immediately preceding the date of commencement of this Act, in that case no seat shall be reserved for the Other Backward Classes under clause (iii) but the extent of the reservation of seats for the Scheduled Castes and the Scheduled Tribes shall not be reduced in respect of Central Educational Institutions in the specified north-eastern region."

33. Indisputably, the JNVs are totally supported and aided by the

Central Government under the National Education Scheme, 1986.

Hence, they are "Central Educational Institution" encompassed in

Clause (iv) of Section 2(d) of the Act of 2006.

34. Therefore, by virtue of Section 3 of the Act of 2006,

reservation to Other Backward Classes is mutatis-mutandis

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applicable to JNVs. Hence, regardless of the notice dated

31.03.2020, reservation to OBC was applicable and it ought to

have been provided for. The same has now been provided by way

of notice dated 31.03.2020.

35. A look at Section 3(iii) of the Act of 2006 suggests that 27%

seats are to be reserved for OBC, but the expression "Other

Backward Classes", as defined in Section 2(g) of the Act of 2006

means the class or classes, which are so determined by the

Central Government. Strictly going by the statute, it is the central

list of backward classes issued by the Central Government alone,

that can be reckoned for the purpose of grant of reservation to the

backward classes, so far as admission in Central Educational

Institutions, including Navodaya Vidhyalayas are concerned.

Hence, there is no illegality or infirmity in the notification dated

31.03.2020. However, the basic question, as to whether the

definition of "Other Backward Classes", given under Section 2(g)

of the Act of 2006, is unconstitutional or otherwise arbitrary is not

a question to be decided by this Court sitting singally.

36. In this view of the matter, this Court is of the view that the

petitioner, who is from Vishnoi Community, which finds place only

in the State list of Backward Classes and not in the Central List,

cannot stake her claim against the seats reserved for OBC

Candidates.

37. At the same time, this Court cannot lose sight of the fact

that the respondents themselves have given admission to the

petitioner and cancellation of admission was stayed by this Court

on 04.09.2020 - about a period of six months has since passed

and the academic session is going to be over soon.

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38. In the present factual backdrop, this Court is of the view that

if cancellation of petitioner's admission is upheld, her one year will

be wasted for none of her fault. Such cancellation may not only

adversely impact her tender aged mind but also blight, rather ruin

her future.

39. Similar is the case of all other petitioners. As those OBC

Candidates have been given admission, the equity of justice

demands that their admissions be not disturbed.

40. It is noteworthy that High Courts of Karnataka and Orissa

have not quashed reservation to OBC Candidates per se but they

have quashed the applicability of reservation from Academic

Session 2020-21.

41. It is too late in a day to strictly tow the line of Orissa High

Court and Karnataka High Court and set aside the 27%

reservation and admissions given to the OBC Candidates even for

academic year 2020-21. There are more than one reason for not

taking this extreme view - firstly the respondents themselves have

given admission to the petitioners and they have been allowed to

study so far. If the reservation to OBC Category Candidates per se

is quashed for academic year 2020-21, academic career of many

such students, who are on the verge of completion of their first

year in JNVs, would be marred. That apart, if their admission is

cancelled, on the one hand these candidates would be scooped out

of the schools and on the other their seats will remain unfilled.

42. This being the position, regardless of the fact that this Court

is of the view that no reservation to OBC Candidate could be

given, when the admission process was half way, in considered

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opinion of this Court, the admission given to the petitioners,

deserves to be saved.

43. Such view is fortified by the following judgments of Hon'ble

the Supreme Court:

(i) Rajendra Prasad Mathur Vs. Karnataka University [(1986) Supp. SCC 740]

"8. We accordingly endorse the view taken by the learned Judge and affirmed by the Division Bench of the High Court. But the question still remains whether we should allow the appellants to continue their studies in the respective Engineering Colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned Judge and thereafter of this Court they have been pursuing their course of study in the respective Engineering Colleges and their admissions should not now be disturbed because if they are not thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the Engineering Degree Course and they had no legitimate claim to such admission. But it must be noted that the blame for their wrongful admission must lie more upon the Engineering Colleges which granted admission then upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Education of the Secondary Education Board, Rajasthan nor the first year B.Sc. Examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore. The appellants being young students from Rajasthan might have presumed that since they had passed the first year B.Sc. Examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan they were eligible for admission. The fault lies with the Engineering Colleges which admitted the appellants because the Principals of these Engineering Colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these Engineering Colleges. We would therefore, notwithstanding the view taken by us in this Judgment allow the appellants to continue their studies in the respective Engineering Colleges in which they were granted admission. But we do feel that

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against the erring Engineering Colleges the Karnataka University should take appropriate action because the managements of these Engineering Colleges have not only admitted students in eligible for admission but thereby deprived an equal number of eligible students from getting admission to the Engineering Degree Course. We also endorse the directions given by the learned Judge in the penultimate paragraph of his Judgment with a view to preventing admission of ineligible students."

(ii) Deepa Thomas Vs. MCI [(2012) 3 SCC 430]

"28. In the light of the peculiar facts and circumstances stated above, we are of the view that it is quite unjust and unfair to discharge the Appellants at this stage. This is an eminently fit case for invoking this Court's powers under Article 142 of the Constitution of India to permit the Appellants to continue and complete the MBBS course to which they were admitted in the year 2007. Such an order is necessary for doing complete justice in the matter. In taking such a view, we are supported by the precedent in the order dated 4th September, 2008 passed by a 3-Judge Bench of this Court in Civil Appeal Nos. 5518- 5519 of 2008 (Monika Ranka and Ors. v. Medical Council of India and Ors.). In that case though the admission was held to be irregular, this Court showed indulgence to the students and permitted them to continue and complete the course on the ground that there was nothing on record to show that the students were informed of the marks secured by them in the entrance examination and the students had already completed one year of their MBBS course.

29. In fact, the facts and circumstances pointed out in the earlier paragraphs show that the case of the Appellants is much better than the case of the students in Monika Ranka's case. In Monika Ranka's case, there was no confusion regarding the eligibility criteria whereas in this case the Prospectus omitted to mention the requirement of securing minimum 50% marks for the CEE as provided in the Medical Council of India Regulations. The Appellants in Monika Ranka's case had completed only one year of their course, whereas in this case the Appellants are completing the 4th year of the MBBS course.

30. As in Monika Ranka's case, the Appellants herein also were not informed of the marks secured by them in the entrance examination. Though the Appellants had specifically pleaded so in the writ petitions and also in these appeals, there is nothing on record to show that the marks secured by them in the entrance

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examination were communicated to them. The High Court has noted in the impugned judgment that since there was nothing on record to show that the Appellants in Monika Ranka's case were informed of the marks secured by them in the entrance examination, the Apex Court indulged to give them the personal relief of permitting them to continue with the course. Even though the case of the Appellants herein also is similar, the High Court has not given any reason for not extending the same relief to the Appellants. There is also no finding anywhere in the judgment that the marks of the CEE were communicated to the Appellants."

44. All these writ petitions are, therefore, disposed of with a

direction to the respondents to keep petitioners' admissions as

OBC Candidates intact, as exceptional cases. The respondents are

directed to allow the petitioners to continue their studies till they

complete their education or voluntarily leave the school.

45. The stay applications also stand disposed of accordingly.

(DINESH MEHTA), J.

/skm/-

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