Vibhav Kharagpuria v. School of Planning and Architecture

16. There was, therefore, no objection, till this stage, to the OBC certificates submitted by the petitioner, either to the certificate dated 27th August, 2015 or to the latest certificate, dated 19th April, 2017.

17. Vide subsequent e-mail, dated 5th June, 2017, the petitioner was informed that the verification of documents submitted by the selected candidates was scheduled to take place between 17th and 22nd July, 2017, orientation would take place on 24th July, 2017, and classes would commence on 31st July, 2017.

18. A list of students, to whom hostel facility was allotted, was also published by the respondent vide a notice dated 8th June, 2017, in which the petitioner figured at S. No. 3.

19. On 12th July, 2017, the respondent forwarded, vide e-mail, a tentative list of the documents required to be submitted for the exercise of verification which included, inter alia, the “caste certificate”.

20. The writ petition avers that when the petitioner appeared before the authority on 17th July, 2017, with the aforesaid documents for verification, he was informed, orally, that his admission was in peril, as the caste to which the petitioner belongs to was not notified as OBC in the Central List of Other Backward Castes, as notified by the Government of India.

21. This provoked the petitioner to address an e-mail, dated 18th July, 2017, to the Director of the respondent-institute, to which the Director responded, vide a terse communication of the same date, merely stating that the respondent “followed Government of India regulations for reservation”.

22. On account of one of the candidates selected against the OBC category, namely Shalu M. K. not taking admission for the course, one seat in the OBC category remained vacant. A list of candidates who were earlier figuring in the wait list, owing to failure of the candidates to join, now included in the list of selected candidates, was issued by the respondent on 24th July, 2017. The writ petition draws attention to the fact that, against the OBC category, only one name, i.e. the name of Rahul Choudhary, figured, who was a wait listed candidate in the earlier list. The petitioner contends that, had the petitioner’s admission been treated as cancelled, both the seats reserved for OBC candidates would have become vacant, and there would have been two wait listed candidates adjusted thereagainst, whose name had been reflected in the list dated 24th July, 2017 (supra). As the said list contained the name of only one candidate, namely Rahul Choudhary, who had been taken from the wait list, against the default in joining, of Shalu M. K., the writ petition avers that the petitioner’s admission was still not treated as cancelled till that date.

23. The petitioner took possession of the hostel room, allotted to him on 27th July, 2017, after paying requisite fees, and started attending classes on 31st July, 2017. While the petitioner was thus attending classes, a notice came to be, on 9th August, 2017, cancelling the petitioner’s admission “due to non submission of OBC certificate”.

24. Aggrieved thereby, the petitioner has moved this Court by means of the present writ petition.

25. Mr. Vibhor Kush, learned counsel for the petitioner, submits that the decision to cancel the candidature of his client was entirely arbitrary and illegal. He points out that the petitioner had never been informed about any guidelines or instructions, issued by the Government of India, which restricted the availability, of the OBC seats, in the respondent-institute, to candidates who were notified in the Central List of OBC, issued by the Government of India, or that candidates who were notified as belonging to the OBC by any State Government were excluded from consideration against such seats. He points out that, though the notice inviting applications, issued by the respondent, stated that reservation for SC/ST/OBC candidates could be in accordance with instructions as issued by the Government of India, and invited the candidates to visit the website of the respondent, for the said purpose, there were no instructions on the website of the respondent indicating that candidates notified as OBCs in the State List were ineligible to apply for admission. The learned counsel emphasizes the various stages at which the case of his client had come up for scrutiny, pointing out that, at no stage was he informed that the certificates, dated 27th August, 2015 and 19th April 2017, submitted by him, were insufficient to enable him to get the benefit of reservation available to OBCs, for admission to the respondent-institution. Learned counsel also points out that, by now, the petitioner has, under the orders of this Court, almost completed his two-year course with the respondent and that if, at this stage, the cancellation of his admission were to be affirmed, it would result in complete injustice to him.

26. As against this, learned counsel appearing for the respondent relies on the provisions of the Central Educational Institutions (Reservation in Admission) Act, 2006 (hereinafter referred to as “the CEI Act”). Section 3 thereof reads thus: “3. 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 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 Classes.”

27. “Other Backward Classes” is defined, in Clause (g) of Section 2 of the said CEI Act as meaning “the class of or classes of citizens who are socially and educationally backward, and are so determined by the Central Government”.

28. Mr. R. K. Singh submits, therefore, that such candidates, who belong to castes notified as OBC under the Central List, being the list issued by the Central Government, were eligible to seek the benefit of OBC reservation in any Central Education Institution, including the respondent.

29. Though neither of the learned counsel was aware thereof, this Court has also come across an Office Memorandum dated 20th April, 2008, issued by the Ministry of Human Resource Development, which is, avowedly, “intended to clarify the process of implementation of reservation for the OBCs”. Sub para VIII of para 3 of the said Office Memorandum reads thus: “VIII) The Socially and Educationally Backward Classes / OBCs who are eligible for availing the benefits of reservation is to be ascertained from the Central lists of SEBCs/OBCs as per Resolution No. 12011/68/93-DCC

(C) of the Ministry of Welfare (now the Ministry of

Social Justice & Empowerment) as modified from time to time by the Ministry based on the advice of the National Commission for Backward Classes (NCBC). For an updated list of state-wise OBCs eligible for availing the benefit of reservation, please see the list maintained by the NCBC at its website http://ncbc.nic.in/backwardclasses/index.html. You may also access information in respect of the creamy layer at http://ncbc.nic.in/ backward-classes/index.html as well as the clarifications issued by the Department of Personnel & Training on the definition of creamy layer and income criteria at http://persmin.gov.in/WriteData/ WMS /Scan Document/ 36033 5 2004 01April2005.him. The Supreme Court judgements are also available at the NIC website http://www.judis.nic/supremecourt/CaseRes[1].aspx. A copy of the Resolution No. 1-1/ 2005-U.1A/846 dated 20th April, 2008 of the Ministry of Human Resource Development, Department of Higher Education, adopting the Central Lists of SEBCs/OBCs as per Resolution NO. 12011/68/93-DCC(C) dated 10.9.1993 of the Ministry of Welfare (now the Ministry of Social Justice & Empowerment) as modified by that Ministry from time to time and the rules/criteria of exclusion of socially advanced persons/sections as per the O.M.No.. 36012/22/93-Estt. [SCT] dated 8.9.1993 as amended by O.M.No. 36033/3/2004- Estt. (Res.) dated 9.3.2004 by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel & Training) and as may be amended by that Ministry from time to time, for the purposes of implementing reservation in admission to Central Educational Institutions as defined in the CEI Act, 2006, is also attached for your reference and use.”

30. Inasmuch as the application, inviting admissions, issued by the respondent, stated that the benefit of reservation to SC/ST/OBC candidates would be extended as per the instructions issued by the Government of India, it would appear that, by virtue of the provisions of the CEI Act, as well as by operation of the Office Memorandum dated 20th April, 2008 (supra), issued by the Ministry of Human Resource Development, the petitioner was, stricto sensu, not eligible to the benefit of reservation under the OBC category, for admission to the respondent-institution.

31. Having said that, however, it remains to be considered whether, for this reason, the cancellation of the petitioner’s admission ought, at this stage, to be upheld by this Court.

32. Justice, social, economic and political, remains one of our preambular constitutional goals. All authorities, judicial, legislative or executive, operating within the parameters of the Constitution, are required to be instructed and guided by the paramount consideration, in the ultimate eventuate, of rendering justice. All the more would this consideration apply to a constitutional court, exercising jurisdiction under Article 226, in which equity is, by its very nature, ingrained. While I am, by virtue of my oath of office, bound to apply the law, whether statutory or precedential, as it stands, while doing so, I cannot choose to allow my verdict to fall foul of the considerations of justice, equity and good conscience. Rendering of justice, is the apogee to which the law, at all times, must aspire.

33. In the present case, till date, the respondent has not pointed out any governmental instruction, which disabled the petitioner from the benefit of OBC reservation, for the purpose of admission to the respondent-institution.

34. The notification inviting applications merely stated that the policy of reservation would be operated in accordance with instructions, issued by the Government of India, without clarifying what the said instructions were. For this purpose, candidates were invited to visit the website of the respondent, and it is stated, on oath, by the petitioner, that the website did not contain any information as could enlighten applicants, applying as OBC candidates, to the legal position that they were required to be as notified as OBC candidates under the Central List. The petitioner had submitted the OBC certificate dated, 27th August, 2015, issued by the State Government of Uttar Pradesh in his favour at the time of applying for the said admission. He was shortlisted for interview among the 276 candidates called for interview and was, therefore, also declared to be selected, figuring at S. No. 4 in the list of successful OBC candidates.

35. The petitioner, had, in the interregnum, resubmitted his OBC certificate dated 27th August, 2015, and no objection was taken by the respondent, at any stage, to the said certificate.

36. An e-mail dated, 31st May, 2018 send by Respondent No. 1, too, required OBC candidates to carry with them the latest valid OBC certificate, without clarifying that such certificate was required to certify them as OBCs in the Central List, issued by the Union of India. The petitioner, in response to the said e-mail, submitted a second OBC certificate dated 19th April, 2017, issued by the State of Uttar Pradesh. No objection was raised to this certificate either. Rather, the petitioner was granted admission, as well as accommodated in the hostel of the respondent-institution.

37. Even in the counter affidavit which has been filed in response to the writ petition, no reference is made, either to the CEI Act or to any governmental instruction, disentitling the petitioner to the benefit of OBC reservation for the purpose of admission to the respondentinstitution.

38. It is only today, during arguments, that the learned counsel for the respondent could produce the CEI Act, in support of the decision to cancel the petitioner’s candidature. Interestingly, neither side was aware even of the Office Memorandum dated 20th April, 2008, issued by the Ministry of Human Resource Development.

39. By entering into the above observations, I do not mean to disparage either learned counsel who have appeared in the matter. The fact of the matter is that there is a veritable ocean of instructions, as well as statutory prescriptions, governing the policy of reservations for SCs/STs/OBCs, issued by the Government of India from time to time. It is impossible for anyone, save and except, possibly, officials directly dealing with these aspects, to be aware of all these instructions. Even less could a student, applying for admission to an educational course, be expected to familiarize himself with every such instruction issued by the Government of India. I am of the clear opinion, therefore, that, by merely stating, in the notice inviting applications, issued by it for the academic session 2017-2018, that the benefit of reservation would apply “as per the rules of Government of India”, the respondent was, albeit unintentionally, playing hide and seek with the candidates. It is completely unrealistic to expect candidates applying to such courses, to spend their valuable time scouring the internet, or other sources, ferreting out all the instructions governing grant of reservations to SC/ST/OBC candidates, as issued by the Government of India, in the matter of admission to educational institutions. At the cost of repetition, I may reiterate that no such instructions, as would disentitle the petitioner to such reservation, are even annexed with the counter affidavit filed by the respondent.

40. Given these facts, as well as the fact that the petitioner had repeatedly submitted his OBC certificate to the respondent, without any objection being raised thereto, on the part of the respondent, I am of the opinion that it would be a travesty of justice to, at this stage, uphold the cancellation of the petitioner’s candidature, when he is at the threshold of completion of his course. Had the respondent been more transparent while inviting applications, clearly setting out the requirement therein, that candidates seeking reservation under the OBC category were required, to be notified as reserved category candidates under the Central List, things might have been different. That, however, is not the case.

41. The petitioner has also drawn my attention to a judgment of the Supreme Court in Deepa Thomas v. Medical Council of India, (2012) 3 SCC 430, and to a judgment rendered by a learned Single Judge of this Court in Ram Narayan Tiwari v. Guru Gobind Singh Indraprastha University, (2017) SCC Online Del 9253, in both of which, the decision to cancel the candidature of the concerned candidates had been disapproved.

42. I may refer, with advantage, in this context, to the judgment of the Supreme Court in Rajendra Prasad Mathur v. Karnataka University, (1986) Supp SCC 740. It is not necessary to allude, in detail, to the facts of the said case. Suffice it to state that, despite the Supreme Court having coming to the conclusion that the appellant, in that case, was ineligible for admission, it went out to hold, in para 8 of the judgment, thus: “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 now 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 than upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Examination 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 BSc 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 against the erring engineering colleges the Karnataka University should take appropriate action because the managements of these engineering colleges have not only admitted students ineligible 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.”

43. In the circumstances, the decision of respondent to cancel the admission of the petitioner, as manifested by the impugned notice, dated 9th August, 2017, cannot sustain in law and deserves, therefore, to be quashed. It is, accordingly, set aside.

44. The petitioner has been permitted to undertake the course, pursuant to the interim orders passed by this Court in this case. He shall, therefore, be permitted to complete the said course, which he is presently undertaking.

45. I also deem it appropriate to direct the respondent to ensure that, in further advertisements, the applicable instructions, for candidates applying in pursuance thereto, be clearly set out in the body of the advertisement itself. If they are to be found in any Office Memorandum, or other instruction, issued by any governmental authority, the details of such Office Memorandum instruction should be reflected in the body of the advertisement. This would ensure that another controversy, such as the present case, does not occupy valuable judicial time.

46. The writ petition is allowed in the above terms, with no order as to costs.

C. HARI SHANKAR, J

FEBRUARY 26, 2019 bh