Full Text
HIGH COURT OF DELHI
W.P.(C) 3112/2024
SARA SHARMA ..... Petitioner
Through: Mr. Sahil Mongia, Mr. Shahil Rao, Mr. Rahul Yadav, Mr. Sharukh Sharma, Mr. Abhishek Yadav and Ms. Divya Sharma, Advs.
Through: Mr. Sanjay Khanna,
JUDGMENT
01.03.2024
1. Female students, who desired to undertake the XII class examination of the Central Board of Secondary Education (CBSE) as private candidates have, as per Clause (p)(1) of Serial No.7 of Public Notice dated 5 September 2023 issued by the CBSE titled “Features of the Online System of Registration”, applicable to female private candidates who desired to attempt the examination, to upload, along with the online application form, a Domicile Certificate issued by the appropriate authority. The clause reads thus:
2. Undisputably, in the present case, the petitioner uploaded her application for permission to sit in the XII class examination as a private female candidate but did not upload, with the application form, the requisite Domicile Certificate. Indeed, by that date, the Domicile Certificate was not even available with the petitioner.
3. Even in the absence of a Domicile Certificate, an admit card was issued to the petitioner by the CBSE on 6 February 2024. Mr. Khanna submits that this is one of the drawbacks of the online admit card generation system of the CBSE, regarding which attempts are being made by the CBSE to rectify it. In fact, as the petitioner had not uploaded the Domicile Certificate with her application to attempt the examination, she was not entitled to be issued an admit card.
4. After issuance of the admit card, as per the averments in the petition, the petitioner applied for a Domicile Certificate on 10 February 2024, which was issued to her on 16 February 2024.
5. On 19 February 2024 and 22 February 2024, when the petitioner visited the exam hall to take the papers, she was denied entrance. It is in these circumstances that the petitioner has approached this Court by means of the present petition.
6. I had, on 16 February 2024, dealt with two writ petitions involving similar issues. One (Vishakha and Anr. v. The Controller of Examination, CBSE[1] ) involved 21 private female students. The second, Priyanka Darshi v. CBSE[2] involved one female private student. In both cases, the students were not in possession of Domicile Certificates when they uploaded their application forms for appearing in their Class XII examinations. In Priyanka Darshi, the situation was similar to one which obtains in the present case as, after the admit card was issued, the student applied for and obtained a Domicile Certificate.
7. I had voiced the opinion that, if the Domicile Certificate was not even obtained prior to the issuance of the Admit Card, it was not possible to permit the student to appear in the examination, lest the requirement of uploading of the Domicile Certificate be not reduced to a redundancy.
8. That decision in Vishakha was carried in appeal by the students to the Division Bench of this Court by way of LPA 149/2024 (Vishakha and Anr. v. Controller of Examination, CBSE and Ors.). By judgment dated 22 February 2024, the Division Bench has
2024 SCC OnLine Del 1087 dismissed the appeal and upheld the view taken by me in the corresponding writ petitions. Paras 4 to 12 of the decision of the Division Bench merit reproduction thus:
9. While the Court, therefore, sincerely regrets being unable to come to the aid of the petitioners, that is unfortunately what the law ordains. 10. For the aforesaid reason, it is not possible to grant the relief sought in this writ petition. The writ petition is accordingly dismissed in limine.” (Emphasis supplied)
5. In this regard, we may note that the ‘Domicile Certificate’ is issued by Government of NCT of Delhi to an individual, who is residing continuously for the last three years within the territorial jurisdiction of NCT of Delhi.
6. The Appellants have relied upon their Aadhaar to substitute the requirement of the domicile certificate. In this regard, we may refer to Section 9 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘Aadhaar Act’), wherein, it is specifically stated that the Aadhaar is not a proof of domicile. Section 9 of the Aadhaar Act reads as under: “9. Aadhaar number not evidence of citizenship or domicile, etc.—The Aadhaar number or the authentication thereof shall not, by itself, confer any right of, or be proof of, citizenship or domicile in respect of an Aadhaar number holder.”
7. In view of the said provision in the Aadhaar Act, the stipulation in the Notice dated 5th September, 2023 requiring the applicant to file a domicile certificate issued by the competent authority is reasonable and justified.
8. The exception carved out for private female students by the Notice dated 5th September, 2023 is a privilege extended only to the bona fide residents of NCT of Delhi. To avail the said privilege, the requirement to satisfy the domicile in NCT of Delhi is an essential condition. Further to establish such a domicile, the Notice categorically notified the applicant that he/she must submit a domicile certificate with the application form. The law is well settled that a person, who claims benefit of an exception, has to strictly comply with the conditions for availing the said exception. It is well settled that exemptions and notifications have to be construed strictly. The Supreme Court in CCE v. Hari Chand Shri Gopal[3] has held as under: “Exemption clause — Strict construction
29. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption……..
31. Of course, some of the provisions of an exemption notification may be directory in nature and some are mandatory in nature. A distinction between the provisions of a statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. In Tisco Ltd. [(2005) 4 SCC 272] this Court held that the principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally. An eligibility criterion, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning if the same is directory in nature.”
9. The Appellants have failed to file the domicile certificate and they cannot seek waiver of the said condition in the writ proceedings. The proof of domicile is an essential condition for proving that the appellants fall in the excepted category covered by the Notice.
10. Similarly, the Supreme Court in Shikhar and Anr. v. National Board of Examination & Ors.[4] has repeatedly reiterated that power of judicial review in matter concerning academic policies, which includes setting down of eligibility criteria for writing examinations, should be exercised with care and circumspection. The endeavor to mitigate the hardship of the petitioning persons should not result in unintended consequences adversely affecting the ongoing process of examination. The relevant paragraphs of the judgment read as under:
11. Whenever a cut-off is extended, some students are likely to fall on the other side of the dividing line. In State of Bihar v. Ramjee Prasad, the State had prescribed that applicants applying for the post of Assistant Professors must have three years of experience. In the preceding year, the cut-off date for the receipt of applications was set in June, however, in the year in question, the date was fixed in January making certain candidates ineligible owing to their failure to meet the three-year requirement. This Court held that the cut-off date cannot be held to be arbitrary unless it is shown that it is unreasonable, capricious or whimsical even if no reasons are forthcoming as to the choice of date.”
12. The learned counsel for the Respondents has argued that the relief sought for in the present appeal if granted will cause disruption in the ongoing process of Class X and Class XII Board Examinations of 2024 being held by CBSE. The Respondents have stated it is neigh impossible to integrate the Appellants at this advanced stage of examination and in addition it will cause discrimination to the other similarly placed applicants, who have not approached the Court.” (All emphasis in original)
9. Mr. Sahil Mongia, learned counsel for the petitioner seeks to distinguish the decision of the Division Bench by reference to paras 1.[5] and 1.[6] thereof, which read thus: “1.5. The Appellants submitted their respective online application(s) without the Domicile Certificate. It is stated that the Appellants uploaded their Aadhar Cards with the application form. The Appellants have placed on record the confirmation issued on the Web Portal with following application numbers to the Appellants: (i) Vishakha i.e., Appellant No.1 was allotted WW200040; dated 15th September, 2023 (ii) Priya Das i.e., Appellant No.2 was allotted DW100022; dated 29th September, 2023.
1.6. The exams were scheduled to begin on 19th February
2023. However, since the Appellants were not issued their admit card(s) and therefore the Appellants on 12th February,2024 approached the Regional Office of the Respondents at Patparganj, Delhi. The Regional Office referred the Appellants to the Head Office. Subsequently, on 15th February2024 the Appellants were informed by the Respondents that no admit card(s) would be issued to them as they failed to submit the ‘Domicile Certificate’ as per Clause (p)(1) of the notice dated 05.09.2023.”
10. Thus, according to Mr. Sahil Mongia, the present case is different from the case of the student appellants in Vishakha. The appellants in Vishakha, he submits, were students who had not even been issued admit cards, whereas his client has been issued an admit card. These two cases, he submits cannot be treated at par, and the fact that his client has been issued an admit card merits her case being treated differently from the case of the appellants before the Division Bench. He further submits that, in the case of Vishakha, the appellant had also sought replacement of requirement of the Domicile Certificate by the Aadhar Card.
11. These distinctions of fact, cannot, in my opinion, detract from the applicability of the position of law enunciated by the Division Bench in its aforesaid extracted passages from its judgment in Vishakha. As I have already observed in my decision in Priyanka Darshi, a student, who is erroneously issued an admit card, despite not having uploaded the Domicile certificate and not even having applied for a domicile certificate till then, cannot be placed on a better pedestal than a student who had never been issued an admit card. The erroneous issuance of an admit card to the former cannot give her a leg up over the latter.
12. That apart, the principles of law contained in paras 4 to 12 of the decision of the Division Bench in Vishakha would apply to all students who were not in possession of Domicile Certificate at least on the date when the admit cards were issued. Their applicability cannot depend on whether the students were actually issued admit cards or were not issued the admit cards. The question is of their entitlement to be issued admit cards. The Division Bench has held that they were not so entitled. If there is no entitlement, the fact of issuance of admit cards cannot confer any special equities in favour of the students.
13. The ancillary plea advanced by the appellants in Vishakha for replacement the requirement of Domicile Certificate with the Aadhar card is obviously completely tangential to the issue at hand.
14. In view of the judgment of Division Bench in Vishakha, it is not possible to grant the relief that the petitioner seeks.
15. This writ petition is accordingly dismissed in limine. CM APPL. 12783/2024 and CM APPL. 12784/2024
16. These applications do not survive for consideration and stand disposed of.