Gujarat High Court
Shreya Gupta vs Union Of India & on 2 November, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/16729/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16729 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
SHREYA GUPTA....Petitioner(s)
Versus
UNION OF INDIA & 1....Respondent(s)
================================================================
Appearance:
MR DIGANT M POPAT, ADVOCATE for the Petitioner(s) No. 1
MR NANDISH CHUDGAR FOR NANAVATI ASSOCIATES, ADVOCATE for the
Respondent(s) No. 2
================================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 02/11/2015
ORAL JUDGMENT
1. Learned advocate for the petitioner prays for permission to delete respondent No.1 as party respondent, as it has no role to play. Permission to delete the said respondent, is granted. The necessary amendment in the causetitle be made, forthwith.
Page 1 of 10
HC-NIC Page 1 of 10 Created On Wed Nov 04 02:14:35 IST 2015
C/SCA/16729/2015 JUDGMENT
2. Rule. Mr.Nandish Chudgar, learned advocate for Nanavati Associates, learned counsel, waives service of notice of Rule for respondent No.2National Institute of Design ("NID", for short). On the facts and in the circumstances of the case and with the consent of the learned counsel for the respective parties, the petition is being heard and decided finally, at this stage.
3. By preferring the petition under Article226 of the Constitution of India, the petitioner has prayed for a direction to respondent No.2NID to grant admission to the petitioner in the Toy and Game Design course.
4. Briefly stated, the facts of the case are to the effect that, the petitioner applied for admission in the above course in the NID. She had successfully completed two phases of selection and her name appeared at Serial No.2 in the Waiting List, as a General category candidate. In all, ten seats are available for the Toy and Game Design course. Out of those seats, two seats are reserved for OBC, two for Page 2 of 10 HC-NIC Page 2 of 10 Created On Wed Nov 04 02:14:35 IST 2015 C/SCA/16729/2015 JUDGMENT SC, one for ST and one for the Physically Handicapped category. Four seats are kept for the General category. In the first list, out of ten seats, two seats remained vacant, as no candidate from the ST and Physically Handicapped category could secure admission. Out of the eight remaining seats, one candidate of the General category and two candidates of the SC category did not join the course; therefore, one SC candidate, who was at Serial No.5 in the Waiting List, was given admission against the SC category seat. The position now is that, there are three seats vacant in the Toy and Game Design course, namely, one each for the SC, ST and Physically Handicapped categories. There are only three candidates, at present, in the Waiting List. All three belong to the General category. The name of the petitioner is now at Serial No.1, as the candidate above her has secured admission in the place of the General category candidate, who did not join the course. No candidates of the SC, ST or Physically Handicapped categories are now available in the Waiting List, to fill up the vacant seats of those categories.
Page 3 of 10
HC-NIC Page 3 of 10 Created On Wed Nov 04 02:14:35 IST 2015
C/SCA/16729/2015 JUDGMENT
5. It is the case of the petitioner that as she fulfills the eligibility criteria and, as these seats are vacant as no SC, ST or Physically Handicapped candidates are available, she may be considered for admission against one of the vacant seats, so that she may not lose an academic year.
6. Mr.Digant M. Popat, learned advocate for the petitioner has submitted that no prejudice would be caused to any candidate of the SC, ST and Physically Handicapped categories if one of those seats is allotted to the petitioner, as no candidate from those categories figure in the Waiting List. Further, no applications are pending of any candidate, inclusive of those categories. The seats would be wasted if not filled up. Not only would the petitioner lose a year, but the Institute would also suffer a loss. If the petitioner is granted admission, she could utilize one year fruitfully by gaining admission in the course.
7. Mr.Nandish Chudgar, learned advocate for Nanavati Associates, learned counsel for the respondent Institute, submits that the petitioner does not belong Page 4 of 10 HC-NIC Page 4 of 10 Created On Wed Nov 04 02:14:35 IST 2015 C/SCA/16729/2015 JUDGMENT to the SC, ST and Physically Handicapped categories, therefore, she cannot be admitted to the seats reserved for those categories.
8. This Court has heard the learned counsel for the respective parties, perused the averments made in the petition and other documents annexed thereto.
9. The short question that has arisen for consideration is whether the petitioner can be granted admission against any one seat reserved for an SC, ST or Physically Handicapped candidate, as no candidate from those categories is available and the seats are lying vacant.
10. Normally, while deciding an issue pertaining to reservation of seats, the first consideration of the Court would be to ensure that no prejudice is caused to any candidate of the reserved categories who can rightfully lay a claim on the seats reserved for those categories. In the present case, the same consideration would prevail. Considering this aspect, the Court finds that, though three seats are reserved for the SC, ST and Physically Handicapped categories, respectively, all three seats are lying vacant, as Page 5 of 10 HC-NIC Page 5 of 10 Created On Wed Nov 04 02:14:35 IST 2015 C/SCA/16729/2015 JUDGMENT there are no candidates available from those categories in the Waiting List. The candidate at Serial No.5 of the Waiting List belonged to the SC category and has already been granted admission against a vacant seat for that category, as one of the SC category candidates, who had obtained admission, did not join the course. As of now, there are only three candidates in the Waiting List and all three belong to the General category.
11. If a narrow and technical approach is adopted, it would result in the vacant seats reserved for SC, ST and Physically Handicapped categories going to waste, in spite of the fact that there is a candidate available, such as the petitioner, who can be admitted in one of the seats, after converting the seat into a General category seat. The petitioner is at Serial No.1 of the Waiting List and can well be accommodated and granted admission.
12. Had there been any other candidate belonging to the reserved category on the Waiting List, this Court would not have considered adopting such an approach. The fact remains that no candidate is available from Page 6 of 10 HC-NIC Page 6 of 10 Created On Wed Nov 04 02:14:35 IST 2015 C/SCA/16729/2015 JUDGMENT the categories for which the three vacant seats are reserved, so there is no question of depriving any reservedcategory candidate of the right to admission to the course. No fruitful purpose would be served by keeping the seat vacant. It would result in the loss of an academic year to the petitioner and wastage of a seat to the NID. Besides, there is not even the remotest possibility of any prejudice being caused to a reserved category candidate by converting the vacant seat into one for the General category and considering the petitioner for admission. No candidates from the SC, ST and Physically Handicapped categories are available and none figure on the Waiting List. To convert one of the vacant reserved seats into a General category seat and fill it up would be more pragmatic than letting it go waste.
13. For the above reasons, this Court considers it just and proper to direct the respondentNID to consider the petitioner for admission against one of the vacant seats, by converting it into a seat for the General category.
14. In the context of reservation and the conversion Page 7 of 10 HC-NIC Page 7 of 10 Created On Wed Nov 04 02:14:35 IST 2015 C/SCA/16729/2015 JUDGMENT of reserved seats into General category seats, it would be appropriate to refer to the observations of the Supreme Court in Ashoka Kumar Thakur Vs. Union of India and others, reported in (2008) 6 SCC 1 (Page
707), which are reproduced hereinbelow :
"To strike such a balance, Balaji slashed the impugned reservation from 68% to less than 50%. Balaji thus serves as an example in which this court sought to ensure that reservation would remain reasonable. We heed this example. There should be no case in which the gap of cutoff marks between OBC and general category students is too large. To preclude such a situation, cut off marks for OBCs should be set no lower than 10 marks below the general category. To this end, the Government shall set up a committee to look into the question of setting the OBC cutoff at no more than 10 marks below that of the general category. Under such a scheme, wherever the non creamy layer OBCs fail to fill the 27% reservation, the remaining seats would revert to general category students."
(emphasis supplied)
15. The principle of carrying forward reserved seats cannot be applied in a case for admission to an educational course. This position of law is is made clear by the Supreme Court in Faiza Choudhary Vs. State of Jammu and Kashmir and another, reported in Page 8 of 10 HC-NIC Page 8 of 10 Created On Wed Nov 04 02:14:35 IST 2015 C/SCA/16729/2015 JUDGMENT (2012) 10 SCC 149. The relevant extract of the said judgment is reproduced hereinbelow :
"14. A medical seat has life only in the year it falls, that too only till the cutoff date fixed by this Court i.e. 30th September in the respective year. Carry forward principle is unknown to the professional courses like medical, engineering, dental etc. No rule or regulation has been brought to our knowledge conferring power on the Board to carry forward a vacant seat to a succeeding year. If the Board or the Court indulges in such an exercise, in the absence of any rule or regulation, that will be at the expense of other meritorious candidates waiting for admission in the succeeding years."
(emphasis supplied)
16. In light of the above dicta of the Supreme Court as applied to the facts of the present case, it would be logical to convert one of the vacant seats reserved for the SC, ST and Physically Handicapped category into one for the General category and to consider the petitioner for admission against the said seat, as she is eligible and at Serial No.1 of the Waiting List, which is still in operation. No prejudice would be caused to any reserved category candidate, for the Page 9 of 10 HC-NIC Page 9 of 10 Created On Wed Nov 04 02:14:35 IST 2015 C/SCA/16729/2015 JUDGMENT simple reason that none is available. The Court is informed that the course has already commenced and no applications are pending with the respondentNID from any candidate, therefore, there is no likelihood of any reserved category candidate applying for the same, at this stage.
17. For the aforestated reasons, this Court considers it just and proper to pass the following order :
The respondentNID shall consider the case of the petitioner for admission against one of the vacant, reserved, seats by converting it into a General category seat. The entire exercise shall be completed within the shortest possible time.
18. The petition is allowed, in the above terms. Rule is made absolute, accordingly.
(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 10 of 10 HC-NIC Page 10 of 10 Created On Wed Nov 04 02:14:35 IST 2015