Full Text
Date of Decision: 30th November, 2010.
W.P.(C) No.7006/2010 REKHA ..... PETITIONER
Through: Mr. Naushad Ahmad with Mr. V.
Elanchezhiyan, Mr. Rajesh Kumar Verma & Mr. javed Hussain, Advocates
Through: Mr. Mohinder J.S. Rupal, Advocate
JUDGMENT
1. Whether reporters of Local papers may be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition was filed seeking direction to the respondent University to admit the petitioner, an OBC candidate, to the MA (English) Course. Direction was also sought against the respondent University to fill up the seats reserved for OBC category in accordance with the Central Educational Institutions (Reservation in Admission) Act, 2006. The decision of the M.A. Committee of the respondent No.3 Department of Education converting the seats reserved for OBC category into General category was 2010:DHC:5792 also sought to be quashed; consequently, the admission of any General candidate against the OBC category seat was also sought to be cancelled.
2. The writ petition came up before this Bench first on 20th October,
2010. The petitioner had impleaded the Non-Collegiate Women‟s Education Board (NCWEB) as the respondent No.4. The counsel for the respondent University appearing on advance notice on 20th October, 2010 sought time to find out whether NCWEB was a part of the respondent University or not. Since it was informed that the classes for MA (English) course had commenced on 19th July, 2010, the matter was adjourned to 27th October,
2010. The MA (English) Course is offered by the respondent University at its North / South Campus and also at NCWEB aforesaid.
3. The counsel for the respondent University on 27th October, 2010 informed that NCWEB was a part of the University. He also informed that if the judgment dated 7th September, 2010 of this court in WP(C) No.4857/2010 titled Apurva Vs. Union of India were to be followed, the petitioner may have qualified for admission in OBC category in the North / South Campus but he had not taken instructions on the said aspect. The counsel for the petitioner expressing urgency, confined the relief for admission in NCWEB only. As such the counsels were heard on the limited aspect of entitlement of the petitioner to admission in NCWEB and vide order of the same day, the petition was allowed and the respondent University directed to admit the petitioner to MA (English) course in the NCWEB within one week.
4. The respondent University preferred intra court appeal being LPA No.800/2010. The said appeal was allowed with the consent of the petitioner and the order dated 27th October, 2010 allowing the writ petition set aside and the matter remitted to this Bench for afresh adjudication with liberty to the respondent University to file counter affidavit.
5. The matter thereafter came before this Bench on 22nd November, 2010 when further time was granted to the respondent University to file the counter affidavit. The counter affidavit has been handed over in the Court today by the counsel for the respondent University and the counsel for the petitioner states that no rejoinder is required. The counsels have been heard.
6. The respondent University in its counter affidavit has stated that the NCWEB follows a different procedure for admission and which the petitioner had not followed. It is pleaded that for admission in NCWEB, the candidates besides filling up the form for admission in MA (English) course are required to register separately with the NCWEB and which the petitioner has not done. It is yet further pleaded that for admission in NCWEB the mandatory requirement is of the candidate being a resident of Delhi. It is contended that the petitioner is not a resident of Delhi and is a resident of Bahadurgarh (which is stated to not falling even in the National Capital Territory Region). It is thus contended that the petitioner cannot be admitted to NCWEB. The counsel for the respondent University has drawn attention to the Bulletin of Information for Admission to Post Graduate Courses for the Year 2010-2011 which in Clause 7 thereof provides for enrolment in NCWEB. He has also handed over in the Court the NCWEB‟s Handbook for Information for admission to post-graduate course 2010-2011 of NCWEB containing a separate form for admission to NCWEB and requiring a certificate to be furnished by the candidate residing in the National Capital Territory of Delhi. He has also drawn attention to Ordinance VII of the University providing for admission to NCWEB only for women residing within the territorial jurisdiction of the University i.e. National Capital Territory of Delhi. The documents of Daulat Ram College from where the petitioner had graduated are also handed over to show that the address of the petitioner has always been of Bahadurgarh only. It is pleaded that the petitioner even in the application for admission to MA (English) course had given the address of Bahadurgarh and has mischievously in the present petition given her address as of Delhi. Attention is also invited to the petitioner‟s own admission in her letter dated 26th August, 2010 to the University of mistake in not applying for admission to NCWEB.
7. The counsel for the University has further contended that if at all candidates who had not applied for admission to NCWEB and/or who were not resident of Delhi were also to be directed to be admitted to NCWEB, there were 14 candidates ahead of the petitioner in the merit list of the OBC category and offer shall have to be made to them first before to the petitioner.
8. It is yet further contended that the admissions closed on 31st August, 2010 and the first term examinations are about to commence and the petitioner for this reason also cannot be granted any relief.
9. The counsel for the petitioner has begun his arguments by contending that the University has not dealt with the seats reserved for OBC‟s in the MA (English) course in accordance with the judgment of this Court in Apurva (supra) and had that judgment been followed, the petitioner would have been entitled to get admission in the North / South Campus also.
10. However, as aforesaid, the petitioner had earlier confined the relief in this petition to NCWEB only and not pursued the petition for admission to North / South Campus. The petitioner even while agreeing to have the earlier order of this Bench allowing the petition set aside did not state before the Division Bench that she was withdrawing the earlier concession or would now be seeking admission in North / South Campus also on the basis of the judgment in Apurva. Similarly, when the matter came up again before this Bench on 22nd November, 2010 when time was given to the University to file counter affidavit, the petitioner did not state so. Resultantly, there is no counter affidavit of the respondent University on this aspect. The respondent University was not party to the judgment in Apurva and the counsel for the respondent states that the respondent University may participate in the SLP pending before the Supreme Court against the judgment in Apurva. In the absence of the counter affidavit, it is also not known whether the petitioner would be entitled to admission in North / South Campus even if Apurva was applied.
11. In the circumstances aforesaid, option was given to the counsel for the petitioner to either have the matter adjourned to enable the respondent University to file a counter affidavit on the said aspect or to proceed with the arguments limited to claim for admission in NCWEB. The counsel after much dithering and stating that if the matter is adjourned, the petition would become infructuous, decided to argue, limited to admission to NCWEB only.
12. Notwithstanding the aforesaid, the counsel for the petitioner desired a sympathetic view to be taken qua admission to NCWEB for the reasons aforesaid. However, without it being known whether petitioner would have been entitled to admission in North / South Campus or not, the same cannot be permitted.
13. The counsel has contended that the requirement of residence in Delhi for admission to NCWEB has to be read in context and argues that the petitioner would be considered to be a resident of Delhi for the said purpose. Again there are no pleadings in this regard, the counsel having chosen not to file any rejoinder. Yet again after much dithering, the counsel decided to proceed with the argument without filing rejoinder.
14. Reliance is placed on the following judgments on the aspect of residence:
(i) Judgment dated 11th May, 2005 of the Apex Court in Appeal
(Civil) No.3268-3270/2005 titled Bhagwan Dass Anr. Vs.
(ii) Dr. Pradeep Jain Vs. Union of India AIR (1984) SC 1420
(iii) Union of India Vs. Dudh Nath Prasad AIR 2000 SC 525
(iv) Laxmi Narayan Vs. State of Jharkhand AIR 2002 Jharkhand
104 (paras 12,13 & 14). However, none of the judgments are found relevant. The requirement in the Ordinance of the University of residence in Delhi is unequivocal. The said ordinance is not under challenge in this proceeding. The petitioner by no stretch of imagination can be said to be residing in Delhi. The counsel for the petitioner has also relied on:
(i) Convention on the Elimination of All Forms of Discrimination against Women.
(ii) Extracts from Report No.224 (of June, 2009) of Law
(iii) Second Principle of Justice enunciated by Johan Rawls in his book “Theory of Justice”.
15. Again need is not felt to burden this judgment with a discussion on any of the above and suffice it is to state that the same have no relevance.
16. The petitioner having not applied for admission to NCWEB as she was required to do, cannot be granted the relief of admission to NCWEB.
17. The Supreme Court recently in Maharshi Dayanand University Vs. Surjeet Kaur JT 2010 (7) SC 179 has reiterated that the Court has no competence to issue a direction contrary to law, nor the Court can direct an authority to act in contravention of statutory provisions. It was further held that the Courts cannot be generous or liberal in issuing directions which in substance amount to directing the authorities concerned to violate their own statutory Rules and Regulations. It was further reiterated that the High Court under Article 226 of the Constitution of India is required to enforce rule of law and not pass order or direction which is contrary to what has been injuncted by law. The Supreme Court held that a public authority cannot be debarred from enforcing a statutory provision. To the same effect are the State of UP Vs. Nidhi Khanna (2007) 5 SCC 572 and; (iii) Vice- Chancellor, University of Allahabad Vs. Anand Prakash Mishra (Dr.)
18. The petitioner is thus not found entitled to the relief to which the petition was confined. The petition is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) 30th November, 2010 „gsr‟