Bombay High Court
Miss. Sneha D/O. Sandeeprao Patil vs The National Council For Hotel on 11 October, 2013
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, R.V. Ghuge
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 6088 of 2013
Miss. Sneha d/o. Sandeeprao Patil,
Age : 17 years,
Occupation : Education,
Through her Natural Guardian,
Sandeep s/o. Suresh Patil,
Age : 49 years,
Occupation : Lawyer,
R/o. Chopda, District : Jalgaon. .. Petitioner.
versus
1. The National Council for Hotel
Management and Catering Technology,
Through its Director (A & F),
Library Avenue, Pusa Complex,
New Delhi - 12.
2. Union of India,
Through the Secretary,
Ministry of Tourism,
Government of India,
Transport Bhavan,
1, Sansad Marg,
New Delhi - 1.
3. The Institute of Hotel Management,
Through its Principal,
V.S. Marg, Dadar (W),
Mumbai - 28.
4. The Secretary,
Secondary & Higher Secondary
Education Board, Shivaji Nagar,
Bhamburda, Pune - 4. .. Respondents.
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(2)
.........................
Mr. P.M. Shah, Senior Advocate, with
Mr. B.R. Warma, Advocate, for the petitioner.
Mr. S.R. Barlinge, Advocate, for respondent
nos.1 and 3.
Mr. Alok Sharma, Assistant Solicitor General, for
respondent no.2.
Mr. S.G. Sangle, Advocate, for respondent no.4.
..........................
CORAM : B.P. DHARMADHIKARI &
RAVINDRA V. GHUGE, JJ.
Date of reserving the
judgment : 3rd October 2013.
Date of pronouncing the
judgment : 11th October 2013.
JUDGMENT (Per B.P. Dharmadhikari, J.) :
1. By this petition filed under Article 226 of the Constitution of India, petitioner- a student who has secured admission to first year of three years' B.Sc. course in Hospitality and Hotel Administration, in an institute, by name Indian Institute of Hotel Management at Goa from open category, has approached this Court. Prayer is to quash and set aside Rule 5.1 of the Rules framed by National Council for Hotel Management And Catering Technology, which prohibits seats remaining vacant in Scheduled Castes and Scheduled Tribes categories to be filled in by candidates belonging to ::: Downloaded on - 27/11/2013 20:25:57 ::: (3) any other category. Submission is, this prohibition is arbitrary and also violative of Article 14 of the Constitution of India.
2. This Court has issued notice on 1st August 2013, and accordingly we have heard Sr. Adv. Mr. P.M. Shah with Adv. Mr. B.R. Warma for the petitioner, Adv. Mr. S.R. Barlinge for respondent nos.1 and 3, learned ASGI Mr. Alok Sharma for respondent no.2, and Adv. Mr. S.G. Sangle for respondent no.4
3. With the consent of parties, we have heard the petition finally.
Hence, we issue Rule and make it returnable forthwith.
4. Sr. Adv. Mr. Shah submits that when there are no students to take 15 % seats reserved for Scheduled Caste category students or then 7.5 % seats for Scheduled Tribe category students, those seats cannot be permitted to go waste and must be filled in through meritorious open category candidates who are otherwise being denied admission to the desired seats. He points out that this restriction is not applicable to 27 % seats reserved for Other Backward Class candidates. Thus, seats remaining vacant in OBC category are to be filled in through General Category candidates. He contends that support being taken from judgment of Hon'ble Apex Court, to deny admission to Open Category students in vacancies not taken by SC or ST students, is misconceived. He further argues that there is no question of any transfer or migration of students in this situation, as the admission process is continuous and proceeds in more than two rounds. He also submits that respondent no.3 / Institute also grants direct admission to students who have passed 12th Standard examination from Arts, Science and Commerce faculty and respondent no.
::: Downloaded on - 27/11/2013 20:25:57 ::: (4)4 / Board in the State of Maharashtra does not give such ranks and this results in injustice. He points out that admissions against seats left vacant in reserved quota i.e. residual seats are made on the basis of marks secured by students in 10 + 2 examinations. He has for the said purpose also, invited our attention to admission policy followed by respondent no.3. Clause III dealing with process of admission and Sub-Clause "x" therein claiming adherence to judgment of Hon'ble Apex Court reported in the case of Ashok Kumar Thakur Vs. Union of India and others [(2008) 6 SCC 1], is also relied upon by him for the said purpose.
5. He points out that at Mumbai, there are total 19 vacancies against which not a single ST student has been admitted and hence, if a girl child like petitioner who has secured admission on the strength of merit is accommodated at Mumbai against such seat, it would be recognition of her right, facilitate her education and will be a comfort to family.
6. To substantiate his arguments, he has taken support from the judgments of Hon'ble Apex Court in the case of Dr. Sadhna Devi & others Vs. State of U.P. & others [(1997) 3 SCC 90], and in the case of P.V. Indiresan (2) Vs. Union of India & others [(2011) 8 SCC 441].
7. Adv. Mr. Sangle for respondent no.4 has opposed the petition by pointing out that the petitioner do not seek any relief against respondent no.4. He further points out that respondent no.4 / Board is not declaring ranks since long and petitioner has never challenged it.
8. Adv. Mr. Barlinge for respondent nos.1 and 3 has submitted ::: Downloaded on - 27/11/2013 20:25:57 ::: (5) that the petitioner has taken admission with open eyes. Petitioner and her parents were aware that there is no provision for transfer from one institute to other institute and there is also no dereservation, in so far as vacancies in SC or ST reserved quota is concerned. He has invited our attention to specific assertion in reply affidavit, that even if such conversion is permitted, there are more meritorious candidates available to occupy vacancies at Bombay and hence, petitioner cannot succeed. He further submits that the admission process has continued in rounds and during rounds, student was permitted to shift to a college of higher choice preferred by him/her. He, therefore, prays for dismissal of petition.
9. Sr. Adv. Mr. Shah in reply arguments, takes support from the judgment of Hon'ble Apex Court in the case of Gulshan Prakash (Dr.) & others Vs. State of Haryana & others [(2010) 1 SCC 477], to urge that reservation prescribed by the Constitution is only an enabling provision and it cannot be construed as a bar.
10. After hearing respective Counsel, we find it appropriate to first look into the case law on which learned Counsel for the petitioner has placed reliance. Respondent no.3 has mentioned judgment of Hon'ble Apex Court reported in the case of Ashok Kumar Thakur Vs. Union of India and others (supra), while stipulating that vacant seats in reserved category, more than 10 % of total number of seats can be transferred in General Category seats during counseling. Perusal of judgment of Hon'ble Apex Court in the case of Ashok Kumar Thakur Vs. Union of India and others (supra), in paragraph 139(3) shows that there, Hon'ble Apex Court has made these observation about seats remaining vacant in OBC category.
::: Downloaded on - 27/11/2013 20:25:57 ::: (6)Said judgment is looked into by Hon'ble Apex Court in its subsequent judgment reported in the case of P.V. Indiresan (2) Vs. Union of India & others (supra). There, the issue of prescribing cut off marks for OBC category candidates have been looked into. In paragraph 54, Hon'ble Apex Court has observed that if in any Central educational institution, the OBC reserved seats remain vacant, same must be filled in with only OBC students. When OBC candidates possessing minimum eligibility are not available, those seats can be converted into General Category seats.
11. In the case of Amanjit Singh Gill Vs. Directorate General of Health Services [(1989) 1 SCC 231], Hon'ble Apex Court in paragraph 4 of the judgment, while considering allotment of college to meritorious medical students, has observed that colleges near to their place of residence may be allotted. In the case of Dr. Sadhna Devi & others Vs. State of U.P. & others (supra), Hon'ble Apex Court has emphasized that merit has to be the only criterion for admission normally. It has also observed that reserved seats should not be allowed to go waste but should be made available to the candidates belonging to General Category. Here, Hon'ble Apex Court has also noted that "the higher you go, in any discipline, lesser should be the reservations - of whatever kind".
12. To draw parallel, our attention has also been invited to Rules of Admission to first year of four year full time degree course in Engineering / Technology and Institute Information for academic year 2013-14. Rules are bound to differ from course to course and discipline to discipline.Rules are also framed by the different authorities. Judgment of the Hon'ble Apex Court reported at (2002) 4 S.C.C. 34- Ashutosh Gupta v. State of Rajasthan & ::: Downloaded on - 27/11/2013 20:25:57 ::: (7) Ors, particularly paragraphs 5 and 6 points out the basic requirement of having appropriate pleadings and averments in the substantive petition which must be specific, clear and fully unambiguous to sustain such challenge & same is not satisfied here. In paragraph 6, the Hon'ble Apex Court has held that if a law has to be struck down as violative of Article 14 the inequality must arise under the same piece of legislation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two different enactments made by two different authorities in relation to the same subject will not be liable to attack of Article 14. We, therefore, can not compare the provisions of other Rules or State Rules & challenge as posed needs to be discarded. Here challenge about Education Board not giving ranks in the 12th exam also suffers from vagueness as Petitioner has not demonstrated that on the strength of her total marks in H.S.S.C. exam, she could have been put at top of the merit list. It is not, therefore, decisive. Moreover, it is by way of afterthought as also belated.
13. Perusal of Rules framed by respondent no.3, in accordance with which petitioner has been admitted to the institute at Goa, show a clear bar in Rule 5.1. These seats remaining vacant in SC and ST categories are not to be filled in by candidates belonging to any other category. This is in contrast with Rule 5.2 dealing with OBC reservation.
That rule permits the filling in of vacant seats in OBC category from General Category candidates. Respondent no.3 has apparently treated the OBC students and SC / ST students differently. In the process of admission, as detailed, respondent no.3 has not distinctly mentioned that the seats to be transferred as per Clause III(x) thereof are only from OBC ::: Downloaded on - 27/11/2013 20:25:57 ::: (8) category. However, it is not the case of the petitioner that such conversion of SC and ST reserved seats is permitted by Rules or he was dwelling under any such impression. On the contrary, they have alleged hostile discrimination because of different treatment extended to unoccupied OBC reserved seats on one hand and unoccupied SC and ST reserved seats, on the other hand.
14. During arguments, learned Counsel for respondent nos.1 and 3 has categorically stated that admissions continue in more than two rounds and hence, student who has taken admission in first round can get admission in better institute more preferred by him in second round or a later round, if a vacancy becomes available there. In terms of the scheme of Rules, it is apparent that unoccupied OBC seats can become subsequently available in later rounds. However SC and ST unoccupied seats are never added to the general pool and cannot be added in that process. Thus, all candidates who participated in the admission process have taken their chance & as per the prevailing Rules, the Petitioner got admission at institute in State of Goa.
15. Adv. Mr. Barlinge also attempted to demonstrate that there is bar on transfer from one institute to other institute. That bar is provided for in Rule 11.6. The bar obviously comes into play only after last round of admission and not till then. Therefore, only a meritorious student can aspire to be shifted or transferred to a better institute preferred at a higher number by him as per his choice expressed at the beginning of the admission process.
16. But in the present matter, we are not concerned with such ::: Downloaded on - 27/11/2013 20:25:57 ::: (9) inter institute transfer or migration. Petitioner is staking claim to vacancies not taken by SC and ST students. It is not the petitioner alone but several other students who will also be required to be considered, if those seats are to be thrown open in General Category. Respondent nos.1 and 3 have pointed out that even if such seats are thrown open, petitioner will not succeed in coming to Bombay as there are more meritorious students than her. This stand of respondent nos.1 and 3 in reply affidavit has not been countered by the petitioner. It is, therefore, obvious that in the present matter, said challenge is rendered only academic. We, therefore, do not wish to consider arguments of learned Sr. Adv. Mr. Shah based upon Larger Bench judgment of Hon'ble Apex Court in the case of Gulshan Prakash (Dr.) & others Vs. State of Haryana & others (supra) . The contention, that Clause 4 both in Articles 15 and 16 of the Constitution of India are only enabling provisions and do not bar treating of reserved seats as General Category seats, is therefore, kept open for its due evaluation in more appropriate circumstances.
17. We only, prima facie feel that if there are some managements avoiding filling in SC and ST reserved category seats and wanting to sell such unoccupied seats by offering them to Open Category candidates, validity of ban imposed by respondent no.3 may be required to be sustained. However, if that be not the case, we fail to understand why infrastructure provided to support a particular number of students cannot be then made available to any student including a General Category student. This is basically a policy decision to be reached after considering the past history and we hope, that issue will be suitably addressed by respondent no.3. Only solitary instance as present one, is not sufficient to ::: Downloaded on - 27/11/2013 20:25:57 ::: (10) effectively adjudicate on this challenge.
18. With this hope and finding no merit in the challenge as posed in the present facts, we dismiss the Writ Petition. Rule is discharged. No costs.
( RAVINDRA V. GHUGE ) ( B.P. DHARMADHIKARI )
JUDGE JUDGE
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bgp/wp6088
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