Gujarat High Court
Nikita Suraj D/O Suraj S vs National Institute Of Design on 5 May, 2023
C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17950 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy Yes
of the judgment ?
4 Whether this case involves a substantial question Yes
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NIKITA SURAJ D/O SURAJ S.
Versus
NATIONAL INSTITUTE OF DESIGN
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Appearance:
MR DIGANT M POPAT with MS SAMRUDDHI PAWAR for Petitioner(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1
MR SIDDARTH DAVE FOR MR DEVANG VYAS or the Respondent(s) No.
2,3,4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 05/05/2023
ORAL JUDGMENT
By the present writ petition, the writ petitioner prays for converting 1 reserved vacant seat in to general category seat and further prays for allotment of such converted seat to the petitioner.
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2. Mr. Digant Popat, learned advocate appearing for the petitioner submits that in Special Civil Application No.16350 of 2021, this Court has by way of interim relief granted provisional admission to the course against the vacant reserved category seat pending disposal of the writ petition. He further submits that the said interim order dated 10.12.2021 came to be challenged before the Hon'ble Division Bench in Letters Patent Appeal No.1101 of 2021 which came to be dismissed upholding the interim order granting provisional admission to the candidate therein. He submits that the petitioner in the present case is identically situated and is seeking the same relief which has been granted by this Court. He submits that the said two orders relied upon have become final as the matter was not carried in appeal further by the respondents. He, therefore, submits that pending the present writ petition, the petitioner be given admission against the vacant seats in reserved category.
3. Mr. D.G.Shukla, learned advocate appearing for the respondent No.1 - institute submits that vide order dated 10.12.2021 in Special Civil Application No.16350 of 2021, a Coordinate Bench of this Court had granted provisional admission to 2 candidates in the reserved EWS category quota Page 2 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 pending the writ petition. However, in the said case, the petitioner No.1 and the petitioner No.2 who had approached this Court were placed at Sr. No.1 and Sr. No.3 in the waiting list which was prepared by the respondent No.1 institute. The provisional admission which was granted by this Court was challenged in appeal and the Hon'ble Division Bench has observed that the admission is provisional and subject to the final outcome of the main petition, while dismissing the Letters Patent Appeal. He submits that in the said case, the writ petitioners have given an undertaking that in case they do not succeed in the writ petition, they will leave the course/institute even in the midst of any particular semester and equities will not favour the writ petitioners therein. He submits that in the present academic year, the vacancy, if any, which may arise before the starting of the academic session was to be filled from the merit list of the candidates only and no waiting list has been created.
4. Mr. Digant Popat, learned advocate for the petitioner submits that the Coordinate Bench of this Court by its interim order and which is confirmed by the Hon'ble Division Bench and relied upon by the petitioner herein is an identical case and the Page 3 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 petitioner should be also provisionally granted admission pending the adjudication of the present writ petition.
5. In the present case, the writ petitioner relies upon an interim order passed by the Coordinate Bench of this Court dated 10.12.2021 in Special Civil Application No.16350 of 2021 praying for the provisional admission pending the present writ petition.
6. The Hon'ble Supreme Court in case of Dental Council of India v. Hedgewar Smruti Rugna Seva Mandal - 2017 (13) SCC 115 has held that the Court should not pass such interim orders in the matter of admissions which is subject matter of final adjudication before it.
"16. The question of tenability of an interim order passed by the High Court in matters of admission came for consideration in a recent decision in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others[12]. The Court found that after the MCI and the Central Government having twice considered the inspection report, the matter ought to have been given a quietus by the High Court for the academic year 2015- 2016. It has been further observed that the High Court ought to have been more circumspect in directing the admission of students and there was no need for the High Court to rush into an area that MCI feared to tread. It was further observed that:-
"27. ... Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved -- what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it Page 4 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty." We respectfully concur with the said observations.
20. The High Court has to realize the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young. One may say, "... life is a foreign language; all mis-pronounce it", but it has to be borne in mind that artificial or contrived accident is not the goal of life.
21. There is no reason to invite a disaster by way of an interim order. A Judge has to constantly remind himself about the precedents in the field and not to be swayed away by his own convictions. In this context, the oft- quoted passage from Felix Frankfurter[13] would be apt to remember:- "For the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guardians ? those impersonal convictions that make a society a civilized community, and not the victims of personal rule."
7. In view of the above mentioned judgment of the Hon'ble Supreme Court, the contention of the petitioner relying upon the interim order dated 10.12.2021 in Special Civil Application No.16350 of 2021 to grant provisional admission to the petitioner is liable to be rejected and is rejected accordingly.
8. Rule. Rule returnable forthwith. Mr. D.G.Shukla and Mr. Siddarth Dave, learned advocates waive service of notice of rule for the respondents. With the consent of learned advocates for the parties, the present writ petition is taken up for final hearing.
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9. The present writ petition is filed by the petitioner praying for the following reliefs:-
"11(a) YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction directing the Respondent's institution to give admission to the Petitioner in 2 ½ year Course of Strategic Design Management programme for Masters by converting one reserved vacant seat into general category seat in the interest of justice;
(b) Pending admission and final hearing of this petition, YOUR LORDSHIPS may be pleased to direct the Respondent Institution to give admission to the Petitioner in 2 ½ year Course of Strategic Design Management for Masters;"
9.1 Vide Draft Amendment dated 22.9.2022, the petitioner has prayed for the following further relief:-
"11(aa) YOUR LORDSHIPS may be pleased to issue writ of mandamus and/or any other appropriate writ, order, direction directing the Respondent institution to give admission to the Petitioner in 2 ½ year Course of Strategic Design Management programme for masters from the available vacant seats"
10. The brief facts leading to the filing of the present petition are as follows:-
10.1 The respondent institute has been declared as Institution Page 6 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 of National Importance under the National Institute of Design Act, 2014. The respondent institute is imparting education to the students for the Under-graduate, Post-graduate and Doctoral Programmes in Design and allied Disciplines. Every year more than 500 students are enrolled for the said programmes. The respondent institute conducts Centralised Admissions for five NIDs situated at Ahmedabad, Bhopal, Vijaywada, Kurukshetra and Jorhat for Under-graduate Programmes and for the Post-
graduate Programmes at Ahmedabad, Gandhinagar and Bengaluru Campuses. The admissions for 19 different disciplines is centrally conducted from NID, Ahmedabad. 10.2 The admission process for the Academic year 2022-23 has been conducted following the Rules clearly spelt out in the M.Des. Admissions Handbook 2022-23 of the respondent institute published on 05.10.2021. The details about the announcement of Results have been provided in Section-8 of the said Hand Book. The respondent institute had firstly conducted DAT Prelims in January, 2022 and the result was declared in April, 2022. The respondent institute had thereafter conducted DAT Mains in May-June, 2022. The weightages for the DAT Prelims (30%) and DAT Mains (70%) as well as minimum Page 7 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 qualifying criteria for different categories was published on the Admissions Website. The final result was declared on 05.07.2022.
10.3 The petitioner herein had applied for admission to the Course Masters of Design - Strategic Design Management which is conducted at NID, Gandhinagar Campus. There were totally 19 seats for the said course i.e. Masters of Design - Strategic Design Management.
That out of 19 seats, 14 candidates have been given admission on the basis of their merits in respective categories. There were 2 vacancies in OBC-NCL category and therefore, in accordance with the Central Government directive, the said two vacancies were de-reserved and filled-in by the open category merit list.
10.4 The petitioner belongs to general category. The petitioner herein has scored 66.07 percentile. The the last admitted candidate in general category has scored 76.79 percentile. There are five more candidates, who have secured higher percentile than the petitioner herein in open category, and are higher in the merit list than her. The petitioner herein could not get admission Page 8 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 in the said course as per the merit list.
10.5 That the petitioner came to know that 5 seats in reserved categories in the said course of Master of Design (Strategic Design Management) are vacant as no suitable candidate could be admitted. The course for the Master of Design programme for the academic year 2022-23 has commenced from 16.8.2022. As the seats remain vacant, the petitioner herein has filed the present writ petition seeking a direction to give her admission against one vacant seat in any of the reserved categories.
11. Mr. Digant Popat, learned advocate appearing for the petitioner submits that in the Master of Design programme (Strategic Design Management), 2 seats are vacant in the EWS (General) category, 2 seats are vacant in the SC category and 1 seat is vacant in the ST category as no candidate could secure admission in view of the minimum qualifying criteria. He further submits that this Court in Special Civil Application No.16729 of 2015 had decided identical issue and the petitioner in that writ petition was granted admission against one of the vacant seats from the reserved SC category.
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12. Per contra, Mr. D.G.Shukla, learned advocate appearing for the respondent No.1 - institute submitted that the admission process for the academic year 2022-23 has been conducted following the Rules as mentioned in the M.Des. Admissions Handbook 2022-23. He further submits that neither the admission process nor the admissions granted as per the merit list have been challenged in the present writ petition. He submits that the admissions for the present academic session have been completed. He submits that as per the rules governing admission in the respondent No.1 institute, if any candidate has not passed the minimum qualifying criteria as stipulated for different categories, then no admission is granted and the seat remains vacant. For the present academic session, he submits that out of 19 seats, only 14 candidates have been given admission on the basis of the merit list in various categories and 5 seats have remained vacant in three reserved categories as no candidate could qualify for the same. He further submits that the institute does not create a waiting list and the admissions are granted only on the basis of the merit list prepared as per the percentile secured by the candidate. He submits that in the present case, the petitioner belongs to the general category. She has secured 66.07 percentile. In the open category, the last candidate, who Page 10 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 has been granted admission to the course had secured 76.79 percentile. The petitioner herein is 6 th candidate in the merit list after the last candidate who was admitted. He submits that for the sake of argument if the admission is to be granted against the vacant reserved category seat, then also the petitioner will not be eligible as she is 6 th in the merit list after the last admitted candidate. He submits that the admissions are granted strictly as per the merit list and there cannot be any deviation thereof. He further submits that the 1st semester of the academic year 2022-23 has already commenced from 16.8.2022 and now the petitioner cannot be admitted mid-term. He submits that the Government of India vide Office Memorandum dated 25.5.2012 has stipulated that only when OBC candidates are not available, the vacant seats in that category shall be converted into general category seats and filled according to merit list. He submits that in the present academic year, 2 such seats have been converted into open general category from the reserved OBC category and accordingly, 10 candidates have been given admission of which the last candidate so admitted had secured 76.79 percentile. He submits that as per the Government of India directives, no other reserved category seat can be converted into open category seat and therefore, the Institute cannot convert such vacant seats Page 11 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 into open category seats and give admissions against the same. Therefore, such vacant seats in various reserved categories have to be left vacant as per the administrative directives of the Government of India. He, therefore, submits that the present writ petition be dismissed with costs.
13. Shri Devang Vyas, learned Additional Solicitor General on behalf of the respondent Nos.2 to 4 submits that in the present case, none of the rights of the petitioner much less any fundamental right is being violated and in absence of any such violation, the petitioner is not entitled to seek any relief as prayed for in the present writ petition. He further submits that the reservation has been provided under the statute. There is no provision for conversion of reserved vacant seats. He submits that in absence of such provision of de-reservation, no prayer can be granted. He submits that the validity of such reservation in SC, ST, EWS category has been upheld by the Hon'ble Supreme Court and have also been extended to private institutions. He submits that as per the policy, the vacant seats of EWS reservation cannot be de-reserved and allotted to open category students. He, therefore, submits that the present writ petition be dismissed.
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14. In rejoinder, Mr. Digant Popat, learned advocate for the petitioner submitted that in the present case, none of the 5 meritorious candidates above the writ petitioner herein have approached this Court and therefore, it cannot be said that the allotment of any vacant seat to the petitioner would violate any Rules of Admission. He further submits that the Office Memorandum dated 21.4.2022 issued by the Government of India clearly states that there is no provision for de-reservation of such reserved EWS seats. He submits that in absence of any provision for de-reservation, the same cannot be considered as a bar for de-reserving such reserved EWS seats and that the petitioner can definitely be appointed against 1 of the 2 vacant seats in the EWS reserved category. He further submits that by de-reserving such vacant seats, no prejudice will be caused to the reserved category candidate as there is no qualified candidate available. He submits that the petitioner has passed all the stages of the examination and is otherwise eligible and qualified to study the course. However, being lower in the merit list, she was not able to secure the seat in the open category. He further submits that no fruitful purpose would be served by keeping the seats vacant.
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15. Heard learned counsels for the parties and perused the documents on record.
16. The writ petitioner herein had applied for the course of Masters of Design (Strategic Design Management) in the open general category and she had secured 66.07 percentile. The details of the admissions given for different categories as well as the percentile secured by the last candidate for the academic year 2022-23 are as under:-
Sr. Category of Total No. of Seats Percentile No. Students available filled-in Score of last Seats Candidate
1. Open 8 10 76.79
2. GEN-EWS 2 00 -
3. OBC-NCL 5 03 51.79
4. SC 3 01 60.71
5. ST 1 00 -
Total: 19 14 -
17. It is an admitted position that there are 5 meritorious candidates who have secured more percentile than the writ petitioner herein in the merit list after the last admitted candidate after conversion of 2 OBC-NCL category seats as allowed as per the administrative directives of the Government of India.Page 14 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023
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18. At the outset, it is to be noted that the petitioner herein has not challenged the admission process or the Central Government directives not providing for de-reservation of seats in EWS, SC & ST categories. Her only prayer is for admission against the vacant seats in the EWS, SC, ST reserved categories.
19. The Government of India, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion vide communication dated 31.7.2015 addressed to the respondent institute has issued the guidelines for de-reservation of unfilled seats for an Academic program inter-alia stated as under:-
"27. Unfilled OBC-NCL category seats will be de-reserved and treated as OPEN category seats for allocation in every round of seat allotment. However, unfilled SC and ST category seats will NOT be de-reserved."
19.1 The Office Memorandum dated 24.2.2022 issued by the Ministry of Education, Government of India reads as under:-
"F. No.10-1/2021-U1 Government of India Ministry of Education Department of Higher Education Shastri Bhawan, New Delhi Dated 24th February, 2022 OFFICE MEMORANDUM Subject:- Special Civil Application No.16350 of 2021- Anjal Page 15 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 Balabhaskaran Vs NID before Hon'ble High Court of Gujarat regarding.
The undersigned is directed to refer to DPIIT's email dated 24.11.2021, 09.12.2021 and 31.01.2022 on the above subject.
2. In this regard, it is stated that in continuation to this Ministry's O.M. dated 07.02.2022, it is hereby informed that the matter has been examined further and the following comments are offered in the matter.
"There is no provision specified in the Act for conversion of reserved vacant seats. It should be ensured that reservation- related provisions of the Act passed by Parliament shall be implemented by all educational institutions in letter and spirit."
3. In the light of above, the DPIIT may take necessary action to safeguard the interests of the Union of India.
4. This issues with the approval of Competent Authority.
Sd/-
(K.Nageswara Rao) Under Secretary to the Government of India"
19.2 Further, the Government of India, Ministry of Social Justice & Empowerment Department issued Office Memorandum dated 21.4.2022 as under:-
No.12018/48/2021-BC-II Government of India Ministry of Social Justice and Empowerment Department of Social Justice and Empowerment Shastri Bhawan, New Delhi - 110 001 Date : 21/4/2022 OFFICE MEMORANDUM Subject: Special Civil Application No.16350 of 2021-Anjal Balabhaskaran vs National Institute of Design before High Court of Gujarat at Ahmedabad Page 16 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 The undersigned is directed to refer to DPIIT DO letter P- 24013(12)/1/2021-IPR-V dated 19.4.2022 on the above subject and to reiterate that the Article 15(6) of the Constitute enables the State to provide reservation to the economically weaker sections (EWS) upto a maximum of 10% in matters related to admission in educational institutions including private institutions, whether aided or unaided. Currently, there is no provision for de-
reservation of such reserved EWS seats.
This issues with the approval of Secretary (SJE).
Sd/-
(N.S.Venkatershwaran) Under Secretary to the Government of India [email protected] Tel No-23073428"
19.3 The Admissions 2022-23 Handbook of the respondent No.1 institute stipulates in Section 8.5 as under:-
"8.5 If seats are left unfilled in the OBC-NCL category due to no eligible candidates as per the minimum qualifying criteria or non-availiability of candidates, the seats will be de-reserved and will be allotted to candidates from the Open category. Seats remaining vacant under the GEN- EWS, SC and ST categories will NOT be allotted to candidates belonging to other categories..."
20. The reservation for the reserved categories has been introduced with an objective and purpose. The said objective sought to be achieved is with an intention to provide for an advancement of people of the society falling under the SCs, STs and EWSs categories.
21. The various provisions in the Constitution relating to the institution therefore acknowledge that the reservation is an integral part of the inequality where inequality exists. Further, it Page 17 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 accepts the reality of inequality and of the existence of unequal social groups in the Indian society. Any violation thereof contrary to the Act and the Rules will mar the principles and purpose of reservation and will act contrary to the constitutional guarantee under Article 15(4) of the Constitution of India. There is no gainsaying that the aim of the admission process in any institution is to fill-up the maximum available seats by granting opportunity to the deserving and eligible candidates to give education and knowledge.
22. Learned counsel for the petitioner has not been able to show a single provision whereby the vacant seats can be de- reserved and made available to the candidates in the open category as per the merit list. If the prayer of the present petitioner is accepted then the same will be doing violence to the reservation policy under the Act and the Central Government directives thereunder. Further, in absence of any violation of fundamental rights of the petitioner, any direction in the nature of prayer as sought by the petitioner herein would be in clear transgression of the provisions of the statute. This Court cannot direct the respondents to disobey the statute. Nothing can be more destructive of the rule of law than the direction by the Page 18 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 Court to disobey and disregard the statute and the directive thereunder. The Court cannot be a party to such an endeavor. The Court cannot grant relief to a party on humanitarian ground contrary to the law and the statute of reservation which will be destruction to the rule of law.
If such a prayer is granted, the same will be contrary to the Admission Rules and would amount to granting out of turn allotment dehors the merit list.
23. This Court can also not be oblivious to the fact that such institution of national importance where there is high competition amongst the students to get admission, it cannot be ignored that such precious seats go vacant. However, it is upto the Central Government / State Government to devise suitable ways legislatively, to ensure that such seats do not go vacant and suitable meritorious candidate can avail education in those institutions of national importance.
24. Learned counsel for the petitioner has relied upon the judgment of this Court in Special Civil Application No.16729 of 2015 whereby this Court has granted admission against one of the vacant seats from the reserved SC category. In the said Page 19 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023 C/SCA/17950/2022 JUDGMENT DATED: 05/05/2023 judgment, the Coordinate Bench of this Court has allowed the writ petition and has granted admission against the vacant reserved SC category seat. In the opinion of this Court, a decision is binding not because of its conclusion but in regard to its ratio and the law laid down. It is settled law that authoritative law is laid down after considering all the relevant provisions and the previous precedents. In view thereof, the said judgment will not come to an aid of the petitioner for the prayers prayed for herein.
25. The judgments relied upon by the learned counsel for the petitioner in Shreya Gupta v. Union of India & Ors. [SCA No.17950 of 2022] and in Faiza Choudhary v. State of Jammu and Kashmir & Anr. [(2012) 10 SCC 149] are not applicable in the facts and circumstances of the present case and will not be of any help to the case of the petitioner.
In view of aforesaid observations, the present writ petition is devoid of merits and the same is accordingly dismissed. Rule is discharged. No order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 20 of 20 Downloaded on : Wed May 10 20:34:46 IST 2023