Delhi HC Issues Notice On Plea Challenging Domicile Reservation For Delhiites In NLU Delhi [Read Order]

The Division Bench of Justice Hima Kohli and Justice Subramonium Prasad has issued notice to the Delhi Government and has asked it to file its reply before the next date of hearing.

Filed by Pia Singhh, the petition submits that the reservation policy of respondent University to give 50% reservation to those students who have passed their qualifying degree from Institute situated in Delhi is not only against the constitutional mandate under art 15(3) but is also against all reasonable and logical norms.

It is argued that the classification for 50% reservation to students who have passed their qualifying degree from Institute situated in Delhi is far away from intelligible differentia. Also, there seems no object behind this classification which the respondent university seeks to achieve.

Furthermore, providing 22% reservation to OBC and 10% reservation to EWS category without increasing the total no. of seats is also unconstitutional and against the mandate of guidelines issued by MHRD.

"Since, the petitioner belongs to General/Unreserved category, and is also a permanent resident of Delhi and intends to pursue her LL.M. from NLU Delhi; the provision of 50% reservation to the students of Delhi and also, the provision of 22% OBC & 10% EWS reservations in LL.M. without increasing the number of seats as per MHRD guidelines is adversely affecting her chances of selection and her future career prospects", it is urged.

The petition narrates that on 03.01.2007, Central Educational Institutions (Reservation in Admission) Act, 2006, giving inter alia reservations to Socially and Educationally Backward Classes [SEBCs] also known as Other Backward Classes [OBCs] in Central Educational Institutions came into force. This act was enacted only for central educational institutions but all the state or union territory governments issued notifications to implement OBC reservation in the institution as per the mandate of the Act of 2006. Section-5 of the aforesaid act clearly says that every Central Educational Institution shall, with the prior approval of the appropriate authority, increase the number of seats in a branch of study or faculty over and above its annual permitted strength so that the number of seats, excluding those reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, is not less than the number of such seats available or actually filled, whichever be less, for the academic session immediately preceding the date of the coming into force of this Act.

All state and Union territory govt. issued guidelines to their educational institutions on the same line of Section 5. Consequently, every educational institution throughout the territory of India which has implemented the 27% OBC reservation increased its seats by 54% so that Unreserved/general category seats are not affected.

On 17.01.2019, Ministry of Human Resource Development issued an Office Memorandum wherein it gives direction to Central educational institutions as well as chief secretaries of all state government/UTs to give effect to the provision of 103rd constitutional amendment.

Similar direction as mentioned in Section-5 of the aforesaid was given to all educational institutions via this OM and all institutions were permitted to increase seats by 25% so that unreserved category seats are not affected.

The petitioner has averred that In the previous academic year i.e. 2019-20 total seats for LL.M was 70. Out of these seats 15% for SC & 7.5% for ST were vertically reserved and 5% for PWD were horizontally reserved. There was no other kind of reservation provided to any class, so number of seats were following: Total seats=70

CATEGORY NO. OF SEATS

UNRESERVED 64 (including 3 PWD seats)

SC 11 (including 1 PWD seats)

ST 5

On 02.03.2020, NLU Delhi has issued its e-prospectus for under graduate & post graduate course for academic year2020- 21. A provision for 50% reservation was made for students of Delhi. Also, provision for 22 % OBC & 10% EWS reservation in addition to 15% SC & 7.5% ST reservation was made for both B.A. LL.B. and LL.M. courses from the academic year 2020-21.

"It is apparent by analysing seat matrix of both academic years that in the previous year seats for unreserved category were 64 but in this academic year only 30 seats were notified for the unreserved category. Hence, NLU Delhi has grossly violated the guidelines issued by MHRD and reservation for OBC & EWS were implemented without increasing the seats", it is sought to be contended.

Further, it is brought to the attention of the Court that while making 50% horizontal reservation for students of Delhi two classification was made by respondent i.e. First, Candidates passing the qualifying examination from a recognised School/ College/ Institute located within the NCT of Delhi only will be eligible to apply for seats reserved for Delhi Region. Second, in case of Distance education students, if the Centre of examination/ study Centre is located in the N.C.T. of Delhi, the candidate shall be considered under the Delhi Region and if the Centre of examination/ study Centre is located outside N.C.T. of Delhi, he/ she shall be considered under the All India Level seats.

"So, as per these guidelines respondent could have increased at least 50% seats for implementing 22% OBC reservation and 25% seats for implementing 10% EWS reservations in this academic year but instead by doing so respondent has cut down these seats from the Unreserved category seats which is beyond the authority of the respondent university", it is advanced.

Moreover, it is argued that the horizontal reservation given by respondent University to the students of Delhi region is sui generis and strange- "The classification between students who are passing the qualifying examination from a recognised School/ College/ Institute located within Delhi and who are not passing from such an institute is not germane to the very rule of intelligent differentia. The respondent has recognised the former as "students of Delhi regions" . This classification is beyond any reason and bereft of logic and rule"

It is admitted that "any State can give a reservation to the 'domiciled' person of the state, reason being that such state funds the institute and hence may seek welfare for the residents of that particular state". "But respondent university is not giving this reservation to the domicile of the state but to the students who have passed their qualifying examination from Delhi. Delhi is a metro city and capital of India and a hub for the prominent educational institutes. Students from every corner of the country came here to study. Circumstances may arise that many students who are the permanent resident of Delhi may not get admission in any oschool/college situated in Delhi and they got enrolled in any other institutes located outside Delhi", it is argued. "In such cases, these students who are permanent residents of Delhi would be paying all taxes to the state of Delhi but will not get the reservation in the Institution of their State instead any other student from down south, east, west or north will get that benefit", the petitioner has pointed out.

"The classification for the students of distance education is not only ridiculously drafted, but also, sufficient to stunt any prudent, right thinking and reasonable person. Those students whose Centre is located in Delhi will get the benefit of reservation, as such students will be considered as students of Delhi. This classification is harassing and imaginary only. Thousands of such Institution work in Delhi NCR and surrounding states whose Centre of examination falls in Delhi for the sake of convenience. And the Centre of examination is completely dependent on the discretion of the examination authority. In distance education a student comes only for examination to that Centre. This classification has created a sheer absurd situation in which any student from any part of India will come for a few days for his examination only (his institute though situated out of Delhi) and will get "Students of Delhi" reservation", reads the plea.

The Petitioner has alleged that she failed to carved out from where the respondent University drew the power to implement such reservation policy "because it is published nowhere that state assembly of NCT Delhi has made any law related to this 50% reservation". "Hence, making such provision of reservation by way of an executive order is also against the law enshrined under Article 14 & 15", it is pointed out. "And even we consider that the University has such power then also the quantum of reservation i.e. 50% is bad in law as it has reduced the all India unreserved category seats to the extent of 20% of total seats. If we add up all the kinds of reservation provided by the respondent university then the quantum of total reservation is 80% which means, now OBC reserved seats are more than the Unreserved category seats. Hence, quantum of 50% reservation is also against the principle of equality enshrined under part-III of the constitution", it is suggested

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