Full Text
HIGH COURT OF DELHI
DR AHMAD KAMAL ..... Petitioner
Through: Mr. Kush Sharma, Advocates.
Through: Ms. Anita Sahani, Advocate for R- 1/GGSIPU.
Mr. Apoorv Kurup, Ms. Damini Garg, Mr. Ojaswa Pathak, Advocates for R-
3/UGC.
Mr. Aman Naqvi, Advocate for R-4.
Yashpal Rangi, Advocate for R-7.
DR. KIRAN GAUR ..... Petitioner
Through: Mr. Shalabh Bhardwaj, Advocate.
Through: Ms. Anita Sahani, Advocate for R- 1/GGSIPU.
Mr. Apoorv Kurup, Ms. Damini Garg, Mr. Ojaswa Pathak, Advocates for R-
3/UGC.
Mr. Aman Naqvi, Advocate for R-4.
Mr. Yashpal Rangi, Advocate for R-8.
Mr. Vikas Lakra and Mr. Vrinda Baheti, Advocate for R-10.
JUDGMENT
1. The above-captioned petitions are based on nearly identical facts, raise common grounds of challenge and are accordingly being disposed of by way of a common judgment.
BRIEF FACTS
2. Petitioners – Dr. Ahmad Kamal and Dr. Kiran Gaur [hereinafter “Dr. Kamal” or “Dr. Gaur”, respectively] are qualified doctors having a degree in Bachelor of Ayurvedic Medicine Surgery [“BAMS”]. Desiring to pursue three-year Post-Graduate Ayurvedic Course MD/MS (Ayurveda) for academic year 2020-21, with Institutes under Respondent No. 1 – Guru Gobind Singh Indraprastha University [hereinafter interchangeably “GGSIPU” or “the University”], they qualified All India AYUSH Post- Graduate Entrance Test 2020 wherein Dr. Kamal secured All India Rank 1579 with percentile of 89.78 and Dr. Gaur secured All India Rank 1358 with percentile of 91.23.
3. Petitioners participated in counselling, as BAMS graduates of GGSIPU,[1] hopeful of securing a seat under Economically Weaker Section [“EWS”] category, on the strength of Income and Asset certificate issued by GGSIPU’s provides reservation of 50% seats (out of total seats available for admissions) to BAMS graduates of GGSIPU. These seats reserved are referred to as ‘GGSIP University Quota’ (State Quota). Ref: Clause 6.[2] ‘PGAC (CET Code 196)’ of Chapter 6 [Reservation Policy]. Respondent No. 2 [Sub-Divisional Magistrate – “SDM”] but unfortunately couldn’t secure admissions and lay the blame for the same, on the University. They contend that the admission process has been marred with irregularities as the University has violated Article 15 of the Constitution of India, 1950 and Office Memorandum bearing No. F.12-4/2019–U[1] dated 17th January, 2019 [hereinafter “OM of 17th January, 2019”] by allotting EWS seats to Dr. Megha Sugandh,[2] Dr. Sahil Sain,[3] Dr. Tina Malik,[4] Dr. Deepanshu,[5] and Dr. Medha,[6] [hereinafter interchangeably “Respondent-Candidates” or “Ineligible Candidates”], who belong to Backward Class [“OBC”] category and were not entitled to admission against seats reserved for EWS category.
4. Petitioners represented to the University and strongly protested against admissions granted to Respondent-Candidates, but the same did not elicit a favourable response. Constrained by inaction, they have approached this Court, inter-alia, seeking cancellation of admission of Respondent- Candidates under EWS category and issuance of mandamus against the University to instead admit Petitioners for academic session 2020-21.
5. Mr. Kush Sharma and Mr Shalabh Bhardwaj, counsel for Dr. Kamal Arrayed as Respondent No. 5 and Respondent No. 7 in W.P.(C) 1146/2021 and W.P.(C) 3765/2022, respectively. Arrayed as Respondent No. 6 and Respondent No. 9 in W.P.(C) 1146/2021 and W.P.(C) 3765/2022, Arrayed as Respondent No. 7 and Respondent No. 8 in W.P.(C) 1146/2021 and W.P.(C) 3765/2022, Arrayed as Respondent No. 6 in W.P.(C) 3765/2021. Arrayed as Respondent No. 10 in W.P.(C) 3765/2021. and Dr. Gaur, respectively, made following submissions: -
5.1. Petitioners are meritorious candidates and have been wrongly denied admissions despite holding valid Income and Asset (EWS) certificates and fulfilling eligibility criteria for admission in EWS category. The University admitted Dr. Sugandh, Dr. Sain and Dr. Malik against EWS seats, completely disregarding the mandate of law and also ignored representations made by the Petitioners. Dr. Kamal’s representation dated 18th January, 2021 categorically informed the University about the illegalities in the admission process of PGAC programme, but no heed paid to the same. Dr. Sugandh, Dr. Sain and Dr. Malik belong to OBC category and EWS certificates could not have been issued to them. The certificates relied upon by them have been deceitfully procured and admissions have been secured contrary to regulations in connivance with the officials of the University, thereby depriving the Petitioners of their legitimate right to get admitted. Despite becoming aware of the illegalities there has been complete lack of action on part of the University to remedy the same.
5.2. Ineligible Candidates initially registered for admissions under Unreserved [“UR”] and/or OBC (Non-Central List) category and subsequently, they were unlawfully allowed to switch the same to EWS. Reliance is placed upon Office Memorandum bearing No. F.87(118)/CCS/HQ/EWS/Rev./2019/4517 dated 04th June, 2019,[7] [hereinafter “OM of 04th June, 2019”] which provides that Income and Asset certificates/ EWS certificates shall not be issued to persons Partially modified by Corrigendum bearing No. F.87(118)/CCS/HQ/EWS/Rev./2019/4822 dated 14th June, 2019 [hereinafter “Corrigendum of 04th June, 2019”]. covered under any of the existing scheme of reservation for SCs/ STs/ OBCs (State/ UT and Central List). GGSIPU has granted admission to Ineligible Candidates contrary to afore-said OM.
5.3. Petitioner are vigilant of their rights and have approached this Court without delay and should not be made to suffer for no fault of theirs. They deserve to be granted admission as they have rankings higher than last admitted candidate and must also be adequately compensated for the mental pain and agony suffered by them. Despite being meritorious as per university rankings, Petitioners have been overlooked and instead Ineligible Candidates have been admitted against EWS category. Reliance is placed on decision of the Supreme Court in S. Krishna Sradha vs. The State of Andhra Pradesh and Ors.[8] Of the University
6. Ms. Anita Sahani, counsel for GGSIPU, argues that there is no fault or mistake attributable to the University. The candidates are free to apply for admission in any category. The applications for registration are submitted online, and students apply as per their understanding and those applications are intended for “registration purpose” only. Candidates who qualify the entrance examination are called for counselling, as per their merit. Three rounds of counselling took place for admission to PGAC in academic session 2020-21 and allocation of seats in all categories, including reserved category, was strictly based on merit. If the University denies admission to any candidate(s) merely because the certificate produced, at the time of counselling, does not match with the category opted in their application form, it would result in denial of admission to genuine merit holder(s) for unintentional error and/ or omission in filling up their application forms. Of GNCTD
7. Mr. Shadan Farasat, ASC, GNCTD, supplements the submissions made by Ms. Sahani, counsel for University and argues that the instant petitions are bereft of merit. As per OM of 04th June, 2019, two kinds of EWS certificates are issued by GNCTD. Applicants desirous of obtaining an EWS certificate gives an undertaking that they are solely responsible for the particulars provided by them. If any information is found to be false, SDM is empowered to summarily cancel the EWS certificate, and all benefits accrued thereunder are summarily withdrawn.
8. SDM (Dwarka) issued Income and Asset (EWS) certificate to Dr. Malik, on the basis the application submitted by her on 05th January, 2021 which was accompanied with a self-declaration. Subsequently, on a complaint received by the SDM’s office it was found that she had declared that she belonged to “Jat” caste, which is not covered in any of the list of SCs/ STs and OBCs (State/ UTs/ Central Govt.). The EWS certificate issued to Dr. Malik is valid for Central Government in terms of extant policy issued by GNCTD.
9. Similarly, SDM (Model Town) issued the certificate to Dr. Sugandh on the basis of her application dated 28th December, 2020, wherein she entered “NO” in response to the question whether her caste/sub-caste was “included in SCs/ STs/ OBCs (Central/ UT/ State Lists)” She also submitted an affidavit in support wherein she averred that her “caste/ sub-caste is covered in any of the list of SCs/ STs and OBCs (State/ UTs/ Central Govt.) …”. On receipt of a complaint against her, a notice was issued to her on 25th January, 2022 to show cause as to why action against her should not be taken. She, did not avail of the said opportunity and hence the EWS certificate issued to her was cancelled vide order dated 05th February, 2022. Likewise vide order dated 21st May, 2021, SDM (Dwarka), cancelled the Income and Asset (EWS) certificate issued to Dr. Sain finding that he concealed material information since his “Nai caste/ sub caste falls within the list of both Central and State list of OBCs.”. Of Candidates
10. The candidates have their own version of facts. They impute fault on the University and allege lack of guidance extended to them. They argue that there was no mala fide intention on their part and at the highest, it could be said that they did not have complete understanding of the admission procedure. EWS certificates were obtained with full disclosures. One of the candidates (Dr. Malik) has argued that OM of 04th June, 2019 is not applicable to the facts of the present case as the same pertains to direct recruitment in civil posts and services under Government of India, whereas in the instant matter, the issue is regarding admission in Central Educational Institutions. Admissions in Central Educational Institutions are governed by OM dated 17th January, 2019 issued by Ministry of HRD, while direct recruitment in civil posts and services under Government of India is governed by DoPT OM dated 31st January, 2019.
ANALYSIS
11. The primary issue that requires determination is whether Petitioners’ non-selection is due to any fault on part of the University, and whether they are entitled to be considered for admission, in the year 2022-23.
12. First and foremost, it must be noted that pursuant to complaints made by Dr. Kamal and others, the EWS certificates issued in favour of Dr. Sugandh and Dr. Sain, by the SDM have been cancelled.[9] Consequently, admissions granted to them have also been cancelled by the University. Aggrieved by such cancellation, one of the candidates – Dr. Sain filed a writ petition [being W.P.(C) 3129/2022] which was however subsequently withdrawn vide order dated 03rd August, 2022 and his original educational/ qualification documents have been returned to him. Dr. Sugandh has filed a writ petition [being – W.P.(C) 13540/2022], inter alia, seeking to expunge observations made by SDM (Model Town) vide order 05th February, 2021 and order cancelling admission dated 05th August, 2022. The said petition is pending consideration. As regards Dr. Malik, the University has stated that with clarity emerging from the affidavits filed by the Government, they will take an appropriate decision.
13. Now with cancellation of University admissions, Petitioners’ allegation relating to Ineligible Candidates’ disentitlement stands vindicated. Income and Asset (EWS) certificate of Dr. Sugandh was cancelled vide order No. SDM(MT)/2021/519 dated 05th February, 2021 and Income and Asset (EWS) certificate of Dr. Sain was cancelled vide order No. SDM(DW)/2021/Misc./25751 dated 21st May, 2021. But the crucial question is whether Petitioners get entitled to admissions because of the afore-noted development. In order to decide their entitlement, it is imperative to determine whether the University and authorities involved in the admission process acted within the powers conferred upon them or deviated from the same; and then whether Petitioner’s ouster has resulted as a consequence of any malpractice or misconduct on the party of the University. Considering the lapse of time after the conclusion of admission process, judgment of the Apex Court in S. Krishna Sradha v. State of Andhra Pradesh and Ors.,10 which deals with such a situation, provides guidance to the Court. In the said decision, Apex Court held that only in exceptional circumstances, a candidate can be granted admission after expiry of the deadline. Relevant portion of the said judgment reads as under: - “13. xx.. xx.. xx
13.3. In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.
13.4. Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any (2020) 17 SCC 465: 2019 SCC OnLine SC 1609. relief of admission in the same academic year.” [Emphasis supplied]
14. In order to be entitled to claim special relief of admission at this stage, promptness in action by the Petitioners, although essential, is not adequate consideration. It is also necessary for the Court to conclude that action of authorities is arbitrary, unjustified and in violation of applicable rules/ regulations/ prospectus, having a bearing on the rights of the Petitioners. There is an allegation of connivance against the authorities in the admission process as Ineligible Candidates were admitted on false EWS certificates. To test the merit of this contention we must first understand the process of issuance of EWS certificate. As explained by GNCTD, when a person applies for issuance of an Income and Asset (EWS) certificate, they are required to give a self-declaration, in the form of an ‘Undertaking’, and also an affidavit which is required to be submitted along with list of documents. The text thereof is extracted hereinbelow: -
15. Therefore, the person applying for EWS certificate is solely responsible for the accuracy of declaration and information supplied by him/ her. This information is supplied and self-verified by the Applicant being fully aware that the certificate shall be summarily cancelled, including all benefits arising thereunder (such as – admission, in the instant case), in case it is found that wrong declaration was made by a person/ candidate. In the instant case Ineligible Candidates obtained EWS certificates, by giving wrong information/ declaration to the issuing authorities which were then relied upon by the University for granting admissions under EWS category. However, in this process, the Court is unable to discern arbitrariness, fault or patent illegality on the part of the University. Petitioner’s allegation of connivance unsupported by any evidence is vehemently denied by the University and remains unproved. The University is correct in saying that simply on the basis of Petitioners’ allegations, they could not have proceeded to cancel admissions granted to Ineligible Candidates so long as certificates issued by the issuing agency were not cancelled or not found to be genuine. It is not within the domain of University to challenge or doubt the veracity of Income and Asset (EWS) certificates, produced by a candidate, at the time of counselling, since the same are issued by authorised government agencies/ instrumentalities (such as – SDM). The University only had to verify that the EWS certificates produced were original and genuinely issued by the concerned statutory authority. It is not in dispute that the certificates produced by the Ineligible Candidates were indeed issued by the SDM office, albeit on a false declaration. Later, when concerned SDMs cancelled/ recalled the EWS certificates of Dr. Sugandh and Dr. Sain, the University promptly proceeded to cancel their admissions. No fault is thus attributable to the University for not withdrawing/ cancelling admission immediately on Petitioners’ representations. It may be true that Petitioners are not at fault, but nonetheless, fail to meet the threshold laid down by the Supreme Court in 2019 in S. Krishna Sradha (supra), for the relief of admissions. It is reiterated that only in exceptional circumstances, where it is demonstrated that the fault is attributable to the university or where the officials/ authorities have acted in an arbitrary or recalcitrant manner in breach of the extant rules and regulations, can directions for adjustment of candidature in next academic session. The circumstance narrated above do not indicate that University targeted and/or selectively deprived the Petitioners.
16. It is but obvious for Petitioners to feel that they have been treated unfairly, particularly in light of events that have unfolded during the course of the present proceedings. It has been argued that they could have easily made it to the merit list/ admitted had Ineligible Candidates, been kept away. That is a surmise, which perhaps could have come true. However, we must not speculate on this issue as vacancies that have arisen by cancellation of admission of Ineligible Candidates are much after the commencement of the academic session and pertain to academic session 2020-21. These vacancies have arisen after closure of admission process of the concerned academic session (i.e., 2020-21) and no candidate can claim admission on the basis of vacancies arising after the cut-off date. Petitioners cannot claim any vested right over the vacancies and selection of students, to such seats, cannot be confined to the Petitioners just because they alone have approached the Court. The admission process in relation to any candidate has to be through counselling round(s), which cannot be directed at this belated stage. A medical seat has life of only one year. It has been repeatedly held that directions cannot be issued for increasing annual intake capacity and to create seats. The annual intake capacity has to be strictly adhered and admissions to medical colleges cannot be permitted to be made beyond the sanctioned annual intake capacity. Considering that admission process for PGAC 2022- 23 is underway, granting admissions to the Petitioner or conducting another counselling session at this juncture would in effect mean carrying-forward of two vacant seats from academic year 2020-21, which is not permissible.
17. Dismissed.
SANJEEV NARULA, J DECEMBER 23, 2022