Vaibhav Bajaj v. Sri Guru Gobind Singh College of Commerce

6. The writ petition further avers that, in these circumstances, left with no option, the petitioner had to secure admission to the B.Com. course conducted by the Sri Aurobindo College, which is located 28 km from his residence. The distance between the petitioner’s residence and the said College, it is averred, would render it difficult for the petitioner to adequately pursue his studies in the said College.

7. It is in these circumstances that, complaining that the SGGC and the KMC have defaulted in complying with the requirement of preserving 5% of the total seats, available for admission to the undergraduate courses conducted by them, for students suffering with disability, as required by the RPWD Act, the petitioner has moved this Court, invoking the extraordinary jurisdiction vested in it by Article 226 of the Constitution of India.

8. Separate counter-affidavits, in response to the writ petition, have been filed by the SGGC and the KMC.

9. The SGGC contends, in its counter-affidavit, that, being bound, as it is, by the Circular, dated 4th July, 2015 supra, issued by the University, it had necessarily to implement reservation, for students with disability, to the extent of 5%, on a course-wise basis. For the

10. The SGGC has further contended that the Circular dated 4th July, 2015, on which the petitioner placed reliance, was issued in the context of the PWD Act of 1995, which stood repealed by the RPWD Act of 2016. The said instructions, therefore, it is contended, seized to be applicable after the RPWD Act came into force. After the RPWD Act came into force, it was sought to be contended that fresh guidelines were issued by the University, as contained in the Bulletin of Information released by it. Clause 9.[3] thereof dealt with reservation of seats of persons with disabilities, and one may extract the relevant portions, thereof, thus: ―9.[3] Reservation of Seats for Persons with Disabilities (PwD) (Supernumerary Seats) As per the provisions of Rights of Persons with Disabilities Act, 2016, not less than five percent (5%) seats are reserved for Persons with Benchmark Disabilities. ―Person with benchmark disability‖ means a person with not less than forty person (40%) of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. It may be noted that the erstwhile Persons with Disabilities Act, 1995, under which reservation for Persons with Disabilities in admissions was provided earlier has now been repealed.‖

11. It is further sought to be averred, by the SGGC, that the process of fixing of cut-offs was very scientific and the cut-offs were gradually lowered for all categories, to accommodate the required number of category of candidates suffering from disabilities within the meaning of the RPWD Act. Excessive lowering of the cut-off, it is contended, would result in over admissions. Equally, it is sought to be submitted, the College could not be held responsible if, for certain courses, sufficient students, suffering from disability, were not available.

12. It is also pointed out that, as the seats reserved for candidates with disabilities are supernumerary in nature, they are never diverted but remain vacant, if sufficient candidates, with disability, are not available to fill up the seats in any particular course. Even so, it is reiterated, for the academic session 2018-19, all 8 seats available for persons suffering from disabilities in the B.Com. course conducted by the SGGC, have been filled up. Thereby, submits the SGGC, its obligation under the RPWD Act, also stands discharged.

13. Additionally, it is pointed out, that if the SGGC had admitted the petitioner, who had scored only 43.7% in his XII Class Examination, it would have resulted in a flood of complaints from students, suffering from disability, who had scored between 43.7% and 70%. As such, it is reiterated, that the College was required to gradually lower the cut-off in order to avoid over admissions.

14. The KMC has, in its counter-affidavit, averred that, for the academic session 2018-19, 85 seats were available for the B.Com. course, 5% of which worked out to 4.25, which, on being rounded-off to the nearest whole number, resulted in 4 seats required to be reserved for candidates with disability. All the 4 seats, it is submitted, were filled in the very first cut-off list, from candidates who had had scored between 90.75% and 89.25%.

15. As such, it is submitted by the respondents, that the writ petition is devoid of merit and deserved to be dismissed. Submissions at the Bar

16. Arguing on behalf of the petitioner, Mr. Rajan Mani first drew my attention to the recommendation, contained in the medical report of the petitioner, to the effect that counseling and company of his parents was necessary for his well-being. On the basis thereof, it is sought to be contended that the petitioner was entitled to be educated at a college reasonably proximate to his residence.

17. Mr. Mani, thereafter, drew my attention to Sections 32 and 34 of the RPWD Act, specifically to clause (iii) of Section 16, which deals with the duty of educational institutions, and reads thus: ―16. Duty of educational institutions. The appropriate Government and the local authorities shall endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall—

(iii) provide reasonable accommodation according to the individual’s requirements;‖

18. In conjunction therewith, Mr. Mani draws my attention to the definition of ―reasonable accommodation‖, as contained in clause (y) of Section 2, of the RPWD Act, which may be reproduced thus: ―(y) ―reasonable accommodation‖ means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;‖

19. Mr. Mani submits that, for the academic session 2018-19, the SGGC had total 600 seats, of which 6 seats were required to be reserved for persons with intellectual disability and that the KMC had 1200 seats, of which, too, 12 seats were required to be served for persons with intellectual disabilities. He draws my attention to the fact that the seats reserved for persons with intellectual disability were supernumerary in nature and would not, therefore, eat into any of the sanctioned vacancies. He also places reliance on the Circular dated 4th July, 2015 (supra), as well as the judgment, dated 12th November, 2018, of this Court in [National Federation of the Blind v. Union of India), 2018 X AD(Delhi) 37].

20. Arguing per contra, Mr. A. P. S. Ahluwalia, learned Senior counsel, appearing for the respondent/SGGC, points out, firstly, that the petitioner had misrepresented, in sub para (iii) of para 4 of the writ petition that he had ―succeeding in passing the CBSE XII standard examination in April, 2018 with 43.7% marks and qualified for admission to the undergraduate B.Com course under University of Delhi‖. In fact, Mr. Ahluwalia points out, that the petitioner cleared the said examination only after undergoing the ―compartment‖ in August, 2018, by which time admission to seats reserved for persons with disability, in the college, stood closed. Mr. Ahluwalia points out that the petitioner had, in fact, never applied for admission to the SGGC and that this Court would obviously not direct admission to be granted to a candidate who had not applied for admission in the first place. He also submits that, as per the guidelines issued by the University, the reservation for persons with disability was required to be implemented course-wise.

21. Mr. Mani, arguing in rejoinder, seeks to meet the submission, of Mr. Ahluwalia, regarding the petitioner never having applied for admission to the SGGC – or, for that matter, to the KMC – by submitting that his client had applied in the centralized portal of the University and that the portal, as it operated, permitted only students, who had scored marks equally to or in excess of the stipulated cut-off, for any particular college, to apply, online, for admission to such college. As the marks obtained by his client in Class XII Examinations were less than the cut-offs fixed by the SGGC and the KMC, for admission to the B.Com. course, conducted by them for the 2018-19 academic session, Mr. Mani submits that his client was unable to apply in either of the said Colleges.

22. Mr. Mani seeks, while on the point, to fault the SGGC, as well as the KMC, for fixing the same cut-off for all students suffering with disabilities, pointing out that there was qualitative difference between a student who suffered, for example, a locomotive disability – which did not impact her, or his, intellectual or learning ability in any manner – vis-a-vis a student who suffered from learning disability, such as his client.

23. Fixing of the same cut-offs for these two categories of students, Mr. Mani would seek to submit, was ex-facie arbitrary and could never meet with the approval of law.

24. In fine, Mr. Mani reiterates his prayer that his client be granted admission to the B.Com. course either in the SGGC or in the KMC. Analysis

25. The prayer clause, in the writ petition, filed by the petitioner, reads thus: ―(a) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No.1 and No. 2 colleges to offer admission in their B.Com course to the Petitioner in the quota for intellectually disabled persons for the academic year 2018-19; (b) Pass such other and further orders as this Hon'ble Court may deem fit and proper.‖

26. There is considerable substance in the submission, of Mr. Ahluwalia, that the petitioner, never having applied for admission either to the SGGC or in the KMC, no mandamus, directing either of the said Colleges to admit the petitioner, could possibly be issued. Applying for admission, needless to say, would be a sine qua non, for admission to be granted.

27. Mr. Mani, fairly, does not dispute the fact that his client had not applied for admission, either in the SGGC or in the KMC, but points out that he had applied on the centralized portal of the University, and pleads that he was unable to apply to either of the said Colleges only because he could not secure the requisite cut-off, for such admission. The responsibility for his client being unable to secure the requisite cut-off, for seeking admission in the SGGC or to the KMC, Mr. Mani would further submit, could not be laid at his client’s door, as the decision, of the said colleges, to fix the same cut-off, for admission to all candidates suffering from disability, was ex facie unsustainable on fact as well as in law. Candidates suffering from learning disabilities, Mr. Mani would seek to submit that his client stood on an entirely different pedestal, as compared to candidates suffering from other forms of disability, such as, for example, loco motor disability or auditory disability. Equating these two categories of candidates would, Mr. Mani, submit, amount to treating unequals as equals, and would infract Article 14 of the Constitution of India.

28. At first blush, the submission of Mr. Mani is undeniably attractive. There is merit in this contention, of Mr. Mani, that fixation of the same cut-off, for students suffering from intellectual or learning disabilities, and students suffering from other categories of disability is ex facie arbitrary. Such fixation would, in the opinion of this Court, also infringe Article 14 of the Constitution of India, as there is, indeed, a qualitative distinction, between students who suffer from intellectual disabilities, and students suffering from other categories of disabilities and if, while fixing cut-offs for admission to the college, this distinction is lost sight of, the decision to fix cut-offs may itself become perilously vincible to being classified as arbitrary.

29. Having said that, however, what next? The fact remains that the petitioner did not score the cut-offs fixed for admission to the B. Com. course conducted either by the SGGC or by the KMC. In fact, the petitioner’s marks, as scored in his XII Class Examination, were far lower than the cut-off fixed for candidates suffering from disability in either of these Colleges.

30. No doubt, for candidates suffering form intellectual disabilities, it may have been necessary, or at least appropriate, for the colleges to fix a cut-off substantially lower than that fixed for candidates suffering from other forms of disability. No such mandate is, however, to be found in the RPWD Act. Even if the Court were to hold the fixation of the same cut-off, for candidates suffering from different disabilities, to be ex facie unsustainable, it is not possible for the court to travel the extra mile and to determine the level, or point, at which such cut-off would require to be fixed. The cut-off fixed for students suffering from disability, by the SGGC and by the KMC, were 70% and 89.25% respectively. Assuming that insisting on this cut-off, for candidates suffering from intellectual or learning disability, cannot be approved in law, the Court cannot, as a sequitur or corollary thereto, direct admission of the petitioner, who has scored only 43.7% in his XII Class Examination. No mandamus, to the said effect can, regrettably, be issued by the Court.

31. The possibility of any further discussion, on this aspect, would, in any manner, stand foreclosed, as the petitioner has not chosen to challenge the cut-offs fixed by the SGGC, or the KMC, for admission of candidates with disability, or the manner in which these cut-offs were determined.

32. This Court also admits its inability to subscribe to the submission, of Mr. Mani, relying on the medical reports of the petitioner, that he was entitled to be educated in a college proximate to his place of residence. The recommendations in the report of the Institute for Child Development and Adolescent Health, Moolchand Medicity, indicate, no doubt, that proximity to his family and his parents was, given the petitioner’s medical condition, advisable. That cannot, however, be extrapolated to result in any enforceable right, in the petitioner’s favour, to necessarily be admitted to a college near his residence.

33. Mr. Mani has also not been able to draw my attention to any provision, statutory or in the form of administrative or executive instructions, entitling the petitioner as of right to be educated in a college within any fixed distance from his place of residence.

34. Ubi jus, ibi remedium. The sine qua non, for a mandamus to issue, is a legally enforceable right in the claimant, resulting in a legally enforceable duty on the opposite party. Sans any enforceable legal right, no mandamus can be issued.

35. Equally, writs cannot be issued, by any court governed by the rule of law, solely on the basis of sympathy or compassion. Compassion must always temper, but may never substitute, justice which, in its turn, cannot be administered, by a court, in a manner which would derogate from the law as it exists. It is true that law should never be applied in a manner which should sacrifice, at its alter, justice; equally true, however, is it that justice should never be dispensed in a manner which would violate the law, which is the vehicle thereof.

36. A considerable chunk of the debate, at the bar, was devoted to the issue of whether the provision for reservation, for candidates with disabilities, could be implemented, by the colleges, on a course-wise basis. One feature that immediately comes to notice, regarding this submission, is that, while the circular dated 4th July, 2015, undoubtedly provided that reservations for students with disabilities would be implemented on a course-wise basis, no such caveat is to be found in the guidelines issued under the RPWD Act. In the absence of any such stipulation in the guidelines issued under the RPWD Act, however, it may be possible to argue that colleges could not be permitted to implement ―PWD reservation‖, on a course-wise basis, in such a manner as to result in non-compliance with the mandate of Section 32 of the RPWD Act, which would require each college to necessarily fill 5% of its total seats in any academic year, with students with disabilities. This statutory mandate cannot be jettisoned by resorting to the concept of course-wise reservations, which, if anything, finds place only in the Circular dated 4th July, 2015 and nowhere else.

37. No occasion arises, however, for me to enter further into this debate, in view of my opinion, already expressed hereinabove that, having never applied for admission to either to the SGGC or to the KMC and having failed to secure the cut-offs fixed for students with disabilities in the said colleges, the petitioner cannot claim, in his favour, any enforceable legal right as to justify issuance of a mandamus, by this Court, directing his admission to either of the said colleges.

38. The reliance, by the petitioner, on the judgment of this Court, in National Federation of Blind (supra), too, in my view, does not advance his case to any appreciable extent. That case did not deal with a situation, such as the present, in which, for failure to secure the prescribed cut-offs, the candidates, whose cause the petitioner in that case was seeking to espouse, could not apply for admission to the college (s) of their choice.

39. This Court, in the said decision, essentially held that compliance with Section 32 of the RPWD Act was mandatory. There can be no cavil with this proposition. At the same time, as has already been held by me hereinabove, this Court cannot return any finding, in law, that the cut-offs, for admission of candidates with intellectual or learning disability, in the SGGC or KMC, were required to be lowered to the point where the petitioner would become eligible to secure such admission.

40. This court empathizes with the petitioner. Dyslexia is known to be an unfortunate, though rarely a disabling, disorder, and there are several instances of dyslexics, who have not only been ingratiated into the mainstream of society but have made names for themselves. Notable, among them, may be counted Alexander Graham Bell, Lewis Carroll and Leonardo da Vinci. Integration of dyslexics into the mainstream, therefore, is the need of the hour and dyslexics can hardly be allowed to remain, in this day and age, on the fringes of society.

41. Having said that, however, it would be for the University, or the Colleges, to fix cut-offs, for the admission of dyslexics and with persons suffering from intellectual or learning disabilities, at an appropriate or realistic level, so that they are able to secure admission and pursue their studies. As things stand, the fact remains that the petitioner has been unable to secure the cut-off marks fixed either by the SGGC or by the KMC for admission to the B.Com. course, of students suffering from disabilities, and, for this reason, has also been unable to apply to admission to either of the said colleges.

42. That being so, this Court regrets that it is not possible for this Court to issue any mandamus to admit the petitioner in either of the said Colleges, as the writ petition would seek to pray.

43. The writ petition is accordingly dismissed, with no order as to costs.

C. HARI SHANKAR, J

JULY 23, 2019