Govind Kr Verma and Anr v. Joint Registrar (Medical) Faculty of Ayurvedic and Unani Medicines and Anr

1. The challenge in this petition, by two petitioners who are physically challenged is, to the inaction of the respondents in not inviting them for counseling and admission to the 2016:DHC:7993 MD/MS Ayurvedic and Unani Medicines Course for the academic year 2016-2019 (for short ‘the said course’).

2. The prayers made in the petition are as under: a) Issue a writ of certiorari or any other Writ, order or direction in the nature of certiorari calling for the records of process adopted while inviting the candidates for counseling and the records of the candidates who have applied under the disability quota; b) Issue a writ of mandamus or any other Writ, order or direction in the nature of mandamus issuing direction to the Respondent;

1) To call the petitioners for the counseling forthwith c) Issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing the Respondents 1 and 2 to consider the case of the Petitioners and provide them admission for course of MD/MS (Ayurved); d) Any other order/direction as the Hon’ble Court may be deem fit.”

3. It is averred in the petition that on July 20, 2016 a brochure was issued by the respondents for admission to the said course. It is the case of the petitioners that 66 seats were advertised and as per sub-clause (B) of Clause 7, 3% seats were compartmentally reserved on horizontal basis for candidates belonging to PWD category. On September 11, 2016, entrance exam for the said course was held. On September 23, 2016, result was announced. However, due to issues raised by students, the same was withdrawn from the website of the respondent No.2. According to the petitioner, final result was published on the website on October 17, 2016 without any list of candidates under the physically disabled category. The petitioners made representation before the Chief Commissioner of Persons with Disabilities and the Vice-Chancellor of the University of Delhi on October 20, 2016. On October 21, 2016, the Chief Commissioner of Persons with Disabilities passed the order advising the respondents to give comments within 20 days and asking them to keep two seats for persons with disability in abeyance.

4. The respondent no.2 has filed a short counter-affidavit, wherein it is the stand that 62 seats were sanctioned by the Department of Ayush, Government of India for the said course. As per the norms 50% seats, i.e., 31 seats are meant for Delhi University quota. The matter pertains to admission under 50% All India quota. The counter-affidavit gives, the distribution of seats under All India Quota. According to the respondents, under All India quota, against OBC there were eight seats. It is the stand, that in the current academic year 3% seats in any of the categories, i.e., General, SC, ST and OBC cannot be carved out compartmentally and on horizontal basis out of the respective seats available under the said categories. Even if 100 point roster is applied even then this year no reservation under PWD category can be granted as demanded by the petitioners, since the seats are less this year to carve out reservation within each category. It is also stated that both the petitioners belong to OBC category for which there are only eight seats available. Hence, no seat can be reserved under PWD category.

5. Mr. Pankaj Sinha, learned counsel for the petitioners would at the outset submit, even though the University has called for applications against 66 seats, assuming 62 seats were sanctioned, 3% thereof being 1.86, two seats need to have been reserved for persons with disability. He would urge that under Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short ‘Act of 1995’), all government educational institutions and other educational institutions received aid from the government, shall reserve not less than three percent seats for persons with disability. He would also state, for the implementation of the mandate under Section 39 of the Act of 1995 there is no specific mechanism stipulated but the petitioners have drawn analogy from the DoPT OM dated December 29, 2005 which in clause 15 stipulates the mechanism or modality by which the seats have to be distributed amongst all the three categories enlisted under the Act of 1995. He states, the Medical Council of India has already recognized the course of MDs suitable for the persons with locomotor disabilities therefore in no circumstances, the respondents could have deprived the petitioners the benefit of Section 39 of the Act. He states, educational institutions are bound to reserve 3% seats every time, when they advertise the seats for fresh admissions. He states, since the seats are fixed in number, they are advertised every year and the courses have fixed duration, therefore the DoPT OM will not be applicable to implement Section 39 of the Act.

6. It is his case that the petitioners will be entitled to seats and are entitled to be called for counseling and admission to the said course for the session 2016-19. He would rely upon the judgments of the Supreme Court in the cases of Mahesh Gupta and ors v. Yashwant Kumar Ahriwar and ors Civil Appeal No. 3984/2007 decided on August 30, 2007; Union of India vs. National Federation of the Blind & Ors (2013) 2 SCC 772 and All Kerala Parents Association v. State of Kerala 2003 (2) WLN 692 in support of his contentions.

7. Mr. Mohinder J.S. Rupal would submit that 62 seats need to be divided 50% each under the All India quota and the Delhi University quota. Hence, 31 seats were earmarked for All India quota. He states, that the bulletin of information also clarified that reservation both vertical, horizontal and compartmental shall be done as per the roster maintained. He states, that the first seat shall be earmarked for PWD if there are 33 seats but since there were only 31 seats available this year, hence the admission committee could not reserve any seat for PWD. All the seats have been filled and the last cut off date for admission was November 30, 2016. The petitioners have also resorted to parallel remedy. He would rely upon the judgment of the Supreme Court in the case of Saurabh Choudhary vs. Union of India (2003) 11 SCC 146 to contend that in higher degree courses the merit has to be given preference. He states that the petitioners cannot challenge the applicability of the roster when they themselves had relied upon the office memorandum dated December 29, 2005. He relies upon the judgment of the Supreme Court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission, Civil Appeal No. 3132/2007 decided on July 18,

8. Having heard the learned counsel for the parties, the question needs to be decided whether the petitioners were entitled to be called for counseling and need to be admitted in the said course.

9. Insofar as the issue whether there exist 66 or 62 seats is concerned, it is the case of the respondents that the Department of Ayush had sanctioned only 62 seats. If that be so, the said figure need to be taken as the final figure against which the admissions could be made. There is also no dispute that 50% of the seats were meant to be filled through All India quota and the other 50% through Delhi quota. It is also not in dispute that the petitioners had sought admission against All India quota and they belong to the OBC category.

10. Mr. Rupal may be right in stating that the bulletin of information has clarified that both vertical and horizontal reservation shall be effected as per the roster maintained. This stand of the respondents frustrate the very intent of Sections 33 / 39 of the Act of 1995 and is contrary to the judgment of the Supreme Court in Union of India v. National Federation of the Blind and ors. (supra), wherein, in para 48, the Supreme Court in unequivocal terms has held that the reservation policy stipulated in the Act of 1995 is a vacancy based reservation.

11. That apart, the University’s own communication dated July 6, 2015, para 3 thereof inter-alia stipulates 3% reservation may be calculated on the total number of seats available for admission in a particular College/Institution/Department and in a particular year. However, the implementation of this reservation will be course wise. Regrettably, the short counter-affidavit of the respondents does not make a reference to this communication. Be that as it may, the OM dated December 29, 2005, wherein the Ministry of Personal, Public Grievance and Pensions referred to maintenance of roster cannot be invoked to frustrate the very mandate of Sections 33 / 39. If the number of vacancies in a particular year enables the horizontal reservation of 3% for PWD candidates can be computed/granted, the same must be given effect to. It is an obligation on the part of the University of Delhi being a creature of statute to give effect to the mandate of Sections 33 / 39and not to defeat the same. As I have already stated that the figure of 31 need to be taken as the final figure, against which admissions need to be made against All India quota, and 3% thereof being 0.93% and by adopting the principle of rounding off, one vacancy should have been reserved for person with disability. In this regard reference be made to the Judgment of the Supreme Court in the case of State of UP and Anr. v. Pawan Kumar Tiwari and Ors., Civil Appeal No. 4079/2005 decided by the Supreme Court on 4th January, 2005 wherein the Supreme Court has held “the Rule of rounding off based on logic and common sense is if part is one and a half or more, its value shall increase to one and if part is less than half then its value shall be ignored”.

12. Insofar as the plea of Mr. Rupal that the petitioners belong to OBC category for which there are only 8 seats available, hence, no seat can be reserved under PWD category is also unsustainable. The eighth seat (against the eight seats meant for OBC candidates) should have been filled by a person belonging PWD category. It is not the case of the respondents that out of the 8 reserved for OBC category candidates, one seat has already been filled on merit by a candidate, belonging to PWD category.

13. This I say so, in view of the judgment of the Supreme Court in the case of Rajesh Kumar Daria (supra), on which reliance was placed by Mr. Rupal. The relevant paras (from SCC), I reproduce as under:-