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2021 DIGILAW 605 (RAJ)

Harshita v. Union Of India

2021-03-15

DINESH MEHTA

body2021
JUDGMENT Dinesh Mehta, J. - The present group of writ petitions have been filed by the petitioners, inter alia, challenging action of cancellation of their school admissions on the ground that their caste(s) do not find mention in the list of backward classes issued by the Central Government. 2. As all the writ petitions involve common facts and questions of law, they are being disposed of conjointly. However, for the purpose of narration, facts of SBCWP No.7473/2020, Harshita Vs. Union of India, are being taken into consideration. 3. Before adverting to the casespecific facts, it will be apt to adumbrate the features of the schools in question:- 3.1 The Government of India introduced Jawahar Navodaya Vidhyalayas (for short, 'the JNVs') with a view to augment education in line with the National Education Policy, 1986. According to the prospectus issued by the respondents, there are 661 sanctioned Navodaya Vidhyalayas (out of which 636 are functional) spread in 28 States and 7 Union Territories. 3.2 The JNVs are co-educational residential schools fully aided and controlled by the Union of India through an autonomous organization, called 'Navodaya Vidhyalaya Samiti'. 3.3 Admissions to JNVs are given through admission test conducted by Central Board of Secondary Education, held annually on All India basis at block and district level. 3.4 These schools, which are from 6th Standard to 12th Standard, are established with an objective of excellence coupled with equity and social justice and to promote good quality modern education including strong component of culture, inculcation of values, awareness of environment, adventurous activities and physical education. 3.5 The scheme gives priority to rural students and with that object in mind, it provides that at least 75% seats would be filled by rural children, with a further stipulation that 1/3rd of total seats will be for girl students. The scheme also provides reservation. 3.6 As per prospectus issued for Admission Test, 2020, following types of reservation were envisaged:- "Reservation of Seats.- (a) At least 75% of the seats in a district are filled by candidates selected from rural areas and remaining seats are filled from urban areas of the district. The scheme also provides reservation. 3.6 As per prospectus issued for Admission Test, 2020, following types of reservation were envisaged:- "Reservation of Seats.- (a) At least 75% of the seats in a district are filled by candidates selected from rural areas and remaining seats are filled from urban areas of the district. (b) Reservation of seats in favour of children belonging to Scheduled Castes and Scheduled Tribes is provided in proportion to their population in the district concerned provided that in no district, such reservation will be less than the national average (15% for SC and 7.5% for ST) but subject to maximum of 50% for both the categories (SC & ST) taken together. These reservations are interchangeable and over and above the candidates selected under open merit. (c) Minimum One third of the total seats are filled by girls. (d) There is a provision for reservation for Divyang children (i.e. Orthopedically Handicapped, Hearing Impaired and Visually Handicapped) as per GOI norms. 'Blindness' refers to a condition where a person suffers from any of the following namely: (i) total absence of sight; or (ii) Visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or (iii) Limitation of the field of vision subtending an angle of 20 degree or worse. 'Hearing Impairment' means loss of sixty decibels or more in the better ear in the conversational range of frequencies. 'Locomotor disability' means disability of the bones joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. 'Person with disability' means a person suffering from not less than forty percent of any disability as certified by a medical authority." 4. For admission in Class VI for academic year 2020-21, the candidates of State of Rajasthan were required to fill-in their application forms by 15.09.2019, for the admission tests that were scheduled on 11.01.2020. 5. The petitioner, being aspirant of getting admission in Jawahar Navodaya Vidhyalaya, Jaisalmer, submitted her application form vide Registration No.20140100009, reflecting her category as OBC. 6. Admission card came to be issued to the petitioner showing her category as OBC for admission test to be held between 11.30 a.m. and 1.30 p.m. on 11.01.2020. 7. 5. The petitioner, being aspirant of getting admission in Jawahar Navodaya Vidhyalaya, Jaisalmer, submitted her application form vide Registration No.20140100009, reflecting her category as OBC. 6. Admission card came to be issued to the petitioner showing her category as OBC for admission test to be held between 11.30 a.m. and 1.30 p.m. on 11.01.2020. 7. Before the result could be declared, a notice dated 31.03.2020 came to be issued by the Navodaya Vidhyalaya Samiti, stating/intimating that consequent to acceptance of recommendations of the Parliamentary Committee on Welfare of OBCs (2019-20) by the competent authority, partial modification has been made in the reservation policy for admission to Class VI to Jawahar Navodaya Vidhyalaya Selection Test and accordingly reservation to OBC students would be given from the academic session 2020-21. 8. It will be apposite to reproduce relevant extract of above notice:- "Reservation of seats for SC and ST students shall be made in proportion to their population in the district concerned (subject to minimum of National average and maximum of 50% for both the categories taken together) and 27% reservation shall be provided to the OBC students over and above the reservation for SCs and STs. All other existing reservations including reservations for Girls, Rural, Divyang etc., will remain unchanged. The reservations to the OBC students shall be implemented as per Central List, as applicable from time to time." 9. The petitioner appeared in the written examination and was declared successful, her name found mention in the list of selected candidates uploaded on the official website on 13.05.2020; the petitioner was given admission under the Rural Backward Class quota for school at Jaisalmer. 10. When the petitioner produced her Caste (OBC) Certificate, the respondents found that such Certificate is as per State list of OBC's and not as per the list issued by the Central Government. 11. Apprehending that her admission would be cancelled, the petitioner has preferred the present writ petition, inter alia, with a prayer that notice dated 31.03.2020 be quashed as it restricts applicability of reservation of OBC candidates as per the central list. 12. However, immediately after filing of the writ petition, the petitioner came to receive a communication dated 01.09.2020, indicating therein that since the petitioner (being Vishnoi by caste), has failed to produce OBC Certificate of Central Government, her admission stands cancelled. 13. 12. However, immediately after filing of the writ petition, the petitioner came to receive a communication dated 01.09.2020, indicating therein that since the petitioner (being Vishnoi by caste), has failed to produce OBC Certificate of Central Government, her admission stands cancelled. 13. By way of an amendment application dated 04.09.2020, the petitioner has placed the order dated 01.09.2020 on record while also incorporating challenge to the said order. 14. On 04.09.2020, this Court, while issuing notices, had stayed effect and operation of the above referred order dated 01.09.2020, cancelling petitioner's selection/admission in the JNV, Jaisalmer. 15. Though the matters have come up for consideration of application under Article 226(3) of the Constitution of India, however, looking to the issue involved, with the consent of concerned counsel, the matters were heard finally. 16. Mr. Kunal Bishnoi, learned counsel for the petitioner, submitted that candidates belonging to Vishnoi Community and certain other castes (which find mention in the State's List of Backward Classes but not enumerated in the Central List) were being considered against the seats reserved for OBC Candidates, but in light of the notice dated 31.03.2020, they are not being considered for reservation. He added that the petitioner, who is from Vishnoi Community (enlisted in the State List of Backward Class), was considered and given admission against the seats earmarked for Rural Backward Class, has now been illegally scooped out in pursuance of notice dated 31.03.2020. 17. It was argued by learned counsel that the respondents' action of changing the rules of game, once the game has begun is clearly illegal and contrary to settled canons of law. 18. He also argued that by virtue of notice dated 31.03.2020, rights of all the OBC Candidates, who are not OBC Candidates as per Central List, have been curtailed without any basis, and the notice dated 31.03.2020, which is per se arbitrary and discriminatory, deserves to be quashed. 19. It was also argued that the respondents have unilaterally changed the criteria for admission without any prior intimation and the petitioner, who has been given admission, has been left in a lurch. 20. Mr. 19. It was also argued that the respondents have unilaterally changed the criteria for admission without any prior intimation and the petitioner, who has been given admission, has been left in a lurch. 20. Mr. Avinash Acharya, learned counsel appearing for the respondents, on the other hand, argued that as a matter of fact, there was no reservation for the OBC Candidates and it was introduced for the first time consequent to acceptance of recommendation of the Parliamentary Committee for Welfare of OBCs in March, 2020. 21. He invited Court's attention towards the language used in the notice dated 31.03.2020, to buttress his stand that provisions for reservation to OBC students in admission to Class VI in JNVs, has been introduced from the session 2020-21 onwards. 22. He emphasized that the notice dated 31.03.2020 is very clear and categorical that reservation to the OBC students shall be implemented as per central list, as applicable from time to time, hence petitioner, who has been given admission wrongly, cannot claim any right. 23. Learned counsel argued that as a matter of fact, grievance was raised by certain candidates in other High Courts against grant of reservation to OBCs vide notice dated 31.03.2020. 24. He read the order (interim) dated 04.08.2020, passed by the Karnataka High Court in SBCWP No.10348/2020 : Rohit K.B. Vs. Union of India, and submitted that Karnataka High Court had directed the respondents to accord admission to the private respondents (in the said writ petitions) without insisting on the OBC Caste Certificate issued under the Central Government OBC Caste list and pointed out that against the interim order aforesaid, an SLP was filed and in Special Leave to Appeal No.12473/2020, Hon'ble the Supreme Court has stayed operation of the judgment, subject to a stipulation that the students already admitted pursuant to the impugned order, will not be disturbed. 25. Heard. 26. Upon perusal of prospectus issued for Entrance Test, 2020 (Annex.1), it is clear that there was no reservation, so far as OBC Category Candidates are concerned. Undeniably, the same came into being only consequent to notice dated 31.03.2020. 27. It will be worthwhile to make a reference of judgment dated 28.08.2020, passed by Orissa High Court in SBCWP No.16669/2020 : A.S. Ananya Pradhan Vs. Government of India. Undeniably, the same came into being only consequent to notice dated 31.03.2020. 27. It will be worthwhile to make a reference of judgment dated 28.08.2020, passed by Orissa High Court in SBCWP No.16669/2020 : A.S. Ananya Pradhan Vs. Government of India. Dealing with the same controversy, Orissa High Court has held that the issuance of notice dated 31.03.2020 introducing reservation for OBC Category after issuance of prospectus is unsustainable. 28. It is necessary to take note of the fact that the writ petition (mentioned in para No.24 above), in which Karnataka High Court had granted interim order on 04.08.2020, has been finally allowed by the said Court by a detailed judgment dated 11.11.2020. Operative portion of said judgment reads as under:- "In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the impugned order whereby reservation was sought to be introduced for the OBC Category; the selection of the petitioners and other candidates shall be accomplished on the basis of merits excluding and ignoring the reservation for the OBC category and if the petitioners are otherwise eligible, shall be admitted to the respective courses, forthwith and report compliance to the Registrar General of this Court, without brooking any delay. The answering parties namely the Executive Officer of the Navodaya Vidyalaya Samithi, the jurisdictional Deputy Commissioner of the district and the Principals of the Navodaya Schools in question shall be held personally liable for non-implementation of the writ of this court." 29. A reading of the judgment of Orissa High Court in the A.S. Ananya Pradhan (supra) and Karnataka High Court in the case of Rohit K.B. (supra), reveals that the High Courts have even quashed the notice dated 31.03.2020 to the extent it provides reservation to OBC Students, while observing that since prospectus issued for academic session 2020-21 did not provide any reservation for OBC Category Candidates, no reservation can be provided. It has been held inter alia that as the process of admission has begun and even admission tests have been held, reservation cannot be provided to OBC Candidates. 30. This Court is in agreement with the view taken by the Karnataka High Court that rules of admission cannot be changed once the process has set in motion. The line of argument advanced by Mr. Bishnoi is correct, but the same applies to the detriment of his clients. 30. This Court is in agreement with the view taken by the Karnataka High Court that rules of admission cannot be changed once the process has set in motion. The line of argument advanced by Mr. Bishnoi is correct, but the same applies to the detriment of his clients. The respondents were not justified in introducing the reservation to OBC Candidates abruptly, by notice dated 31.03.2020, when prospectus did not contemplate any such reservation and more particularly, when the admission tests had been held (11.01.2020). 31. But, cases in hands involve a rather complex question the petitioners herein are backward class (BC's) as per the State List and not as per the Central List. They have called upon this Court to pronounce as to whether the notice dated 31.03.2020, which restricts OBC Reservation to the students of castes incorporated in the Central List, is legally sustainable? 32. In this regard, Central Educational Institutions (Reservation in Admission) Act, 2006 (for short, 'the Act of 2006') becomes significant. The following provisions of the Act of 2006 need specific mention and thus, they are being reproduced hereunder:- "2. Definitions.- (d) entral Educational Institution' means-- (i) a university established or incorporated by or under a Central Act; (ii) an institution of national importance set up by an Act of Parliament; (iii) an institution, declared as a deemed University under section 3 of the University Grants Commission Act, 1956 (3 of 1956), and maintained by or receiving aid from the Central Government; (iv) an institution maintained by receiving aid from the Central Government, whether directly or indirectly, and affiliated to an institution referred to in clause (i) or clause (ii), or a constituent unit of an institution referred to in clause (iii); (v) an educational institution set up by the Central Government under the Societies Registration Act, 1860 (21 of 1860). (g) 'Other Backward Classes' means the class or classes of citizens who are socially and educationally backward; and are so determined by the Central Government." "3. (g) 'Other Backward Classes' means the class or classes of citizens who are socially and educationally backward; and are so determined by the Central Government." "3. Reservation of seats in Central Educational Institutions.- 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 shall 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, twentyseven per cent, seats shall be reserved for the Other Backward Classses. Provided that the State seats, if any, in a Central Educational Institution situated in the tribal ares referred to in the Sixth Schedule to the Constitution shall be governed by such reservation policy for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, as may be specified, by notification in the Official Gazette, by the Government of the State where such institution is situated: Provided further that if there are no State seats in a Central Educational Institution and the seats reserved for the Scheduled Castes exceed the percentage specified under clause (i) or the seats reserved for the Scheduled Tribes exceed the percentage specified under clause (ii) or the seats reserved for the Scheduled Castes and the Scheduled Tribes taken together exceed the sum of percentages specified under clause (i) and (ii), but such seats are-- (a) less than fifty per cent, of the annual permitted strength on the date immediately preceding the date of commencement of this Act, the total percentage of the seats required to be reserved for the Other Backward Classes under clause (iii) shall be restricted to the extent such sum of percentages specified under clauses (i) and (ii) falls short of fifty per cent, of the annual permitted strength; (b) more than fifty per cent, of the annual permitted strength on the date immediately preceding the date of commencement of this Act, in that case no seat shall be reserved for the Other Backward Classes under clause (iii) but the extent of the reservation of seats for the Scheduled Castes and the Scheduled Tribes shall not be reduced in respect of Central Educational Institutions in the specified north-eastern region." 33. Indisputably, the JNVs are totally supported and aided by the Central Government under the National Education Scheme, 1986. Hence, they are "Central Educational Institution" encompassed in Clause (iv) of Section 2(d) of the Act of 2006. 34. Therefore, by virtue of Section 3 of the Act of 2006, reservation to Other Backward Classes is mutatis-mutandis applicable to JNVs. Hence, regardless of the notice dated 31.03.2020, reservation to OBC was applicable and it ought to have been provided for. The same has now been provided by way of notice dated 31.03.2020. 35. 34. Therefore, by virtue of Section 3 of the Act of 2006, reservation to Other Backward Classes is mutatis-mutandis applicable to JNVs. Hence, regardless of the notice dated 31.03.2020, reservation to OBC was applicable and it ought to have been provided for. The same has now been provided by way of notice dated 31.03.2020. 35. A look at Section 3(iii) of the Act of 2006 suggests that 27% seats are to be reserved for OBC, but the expression "Other Backward Classes", as defined in Section 2(g) of the Act of 2006 means the class or classes, which are so determined by the Central Government. Strictly going by the statute, it is the central list of backward classes issued by the Central Government alone, that can be reckoned for the purpose of grant of reservation to the backward classes, so far as admission in Central Educational Institutions, including Navodaya Vidhyalayas are concerned. Hence, there is no illegality or infirmity in the notification dated 31.03.2020. However, the basic question, as to whether the definition of "Other Backward Classes", given under Section 2(g) of the Act of 2006, is unconstitutional or otherwise arbitrary is not a question to be decided by this Court sitting singally. 36. In this view of the matter, this Court is of the view that the petitioner, who is from Vishnoi Community, which finds place only in the State list of Backward Classes and not in the Central List, cannot stake her claim against the seats reserved for OBC Candidates. 37. At the same time, this Court cannot lose sight of the fact that the respondents themselves have given admission to the petitioner and cancellation of admission was stayed by this Court on 04.09.2020 - about a period of six months has since passed and the academic session is going to be over soon. 38. In the present factual backdrop, this Court is of the view that if cancellation of petitioner's admission is upheld, her one year will be wasted for none of her fault. Such cancellation may not only adversely impact her tender aged mind but also blight, rather ruin her future. 39. Similar is the case of all other petitioners. As those OBC Candidates have been given admission, the equity of justice demands that their admissions be not disturbed. 40. Such cancellation may not only adversely impact her tender aged mind but also blight, rather ruin her future. 39. Similar is the case of all other petitioners. As those OBC Candidates have been given admission, the equity of justice demands that their admissions be not disturbed. 40. It is noteworthy that High Courts of Karnataka and Orissa have not quashed reservation to OBC Candidates per se but they have quashed the applicability of reservation from Academic Session 2020-21. 41. It is too late in a day to strictly tow the line of Orissa High Court and Karnataka High Court and set aside the 27% reservation and admissions given to the OBC Candidates even for academic year 2020-21. There are more than one reason for not taking this extreme view - firstly the respondents themselves have given admission to the petitioners and they have been allowed to study so far. If the reservation to OBC Category Candidates per se is quashed for academic year 2020-21, academic career of many such students, who are on the verge of completion of their first year in JNVs, would be marred. That apart, if their admission is cancelled, on the one hand these candidates would be scooped out of the schools and on the other their seats will remain unfilled. 42. This being the position, regardless of the fact that this Court is of the view that no reservation to OBC Candidate could be given, when the admission process was half way, in considered opinion of this Court, the admission given to the petitioners, deserves to be saved. 43. Such view is fortified by the following judgments of Hon'ble the Supreme Court: (i) Rajendra Prasad Mathur Vs. Karnataka University, (1986) Supp1 SCC 740 "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. Karnataka University, (1986) Supp1 SCC 740 "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 not 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 then upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Education 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 B.Sc. 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. 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 in eligible 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." (ii) Deepa Thomas Vs. MCI, (2012) 3 SCC 430 "28. In the light of the peculiar facts and circumstances stated above, we are of the view that it is quite unjust and unfair to discharge the Appellants at this stage. This is an eminently fit case for invoking this Court's powers under Article 142 of the Constitution of India to permit the Appellants to continue and complete the MBBS course to which they were admitted in the year 2007. Such an order is necessary for doing complete justice in the matter. In taking such a view, we are supported by the precedent in the order dated 4th September, 2008 passed by a 3-Judge Bench of this Court in Civil Appeal Nos. 5518- 5519 of 2008 (Monika Ranka and Ors. v. Medical Council of India and Ors.). In that case though the admission was held to be irregular, this Court showed indulgence to the students and permitted them to continue and complete the course on the ground that there was nothing on record to show that the students were informed of the marks secured by them in the entrance examination and the students had already completed one year of their MBBS course. 29. In fact, the facts and circumstances pointed out in the earlier paragraphs show that the case of the Appellants is much better than the case of the students in Monika Ranka's case. In Monika Ranka's case, there was no confusion regarding the eligibility criteria whereas in this case the Prospectus omitted to mention the requirement of securing minimum 50% marks for the CEE as provided in the Medical Council of India Regulations. In Monika Ranka's case, there was no confusion regarding the eligibility criteria whereas in this case the Prospectus omitted to mention the requirement of securing minimum 50% marks for the CEE as provided in the Medical Council of India Regulations. The Appellants in Monika Ranka's case had completed only one year of their course, whereas in this case the Appellants are completing the 4th year of the MBBS course. 30. As in Monika Ranka's case, the Appellants herein also were not informed of the marks secured by them in the entrance examination. Though the Appellants had specifically pleaded so in the writ petitions and also in these appeals, there is nothing on record to show that the marks secured by them in the entrance examination were communicated to them. The High Court has noted in the impugned judgment that since there was nothing on record to show that the Appellants in Monika Ranka's case were informed of the marks secured by them in the entrance examination, the Apex Court indulged to give them the personal relief of permitting them to continue with the course. Even though the case of the Appellants herein also is similar, the High Court has not given any reason for not extending the same relief to the Appellants. There is also no finding anywhere in the judgment that the marks of the CEE were communicated to the Appellants." 44. All these writ petitions are, therefore, disposed of with a direction to the respondents to keep petitioners' admissions as OBC Candidates intact, as exceptional cases. The respondents are directed to allow the petitioners to continue their studies till they complete their education or voluntarily leave the school. 45. The stay applications also stand disposed of accordingly.