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inder Parkash Vs. Deputy Commissioner and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 739 of 1973
Judge
Reported inAIR1979Delhi87; ILR1979Delhi238; 1979RLR253
ActsConstitution of India - Article 226
Appellantinder Parkash
RespondentDeputy Commissioner and ors.
Advocates: B.J. Nayar,; S.K.Mahajan and; V.P.Chaudhary, Advs
Excerpt:
constitution of india - article 226--admission to a medical college--quota for scheduled caste--petitioner adjudged non-scheduled caste after 4 years--cancellation of admission--validity of--right to receive higher or professional education--whether a fundamental right.; that a review of the history of judicial thought reveals two distinct currents in judicial as well as juristic thinking with regard to the content, scope and the frontiers of fundamental rights embodied in the constitutional law of these countries. while one view has been to extend and widen the scope of the fundamental rights so as to extend the area of constitutional protection with the aid of the theory of emanation or extension or the need to make the embodied fundamental rights more effective or to treat certain..........on the basis of this conclusion of the commissioner, the deputy commissioner, delhi, informed the college authorities that the petitioner was not a member of the julaha community and was, thereforee, not a member of any scheduled caste. it is on the basis of this finding and on the recommendation of the college authorities that the university of delhi advised the college authorities to cancel the admission of the petitioner. pursuant to this the admission of the petitioner was eventually cancelled by the college authorities by an order of june 9, 1975, annexure 'a'. it further appears that until the order made by the college authorities, cancelling the admission of the petitioner, the petitioner continued to make progress in the studies and had already spent more than 4 years and was in.....
Judgment:

H.L. Anand, J.

(1) This petition under Article 226 and 227 of the Constitution of India, by a medical student, challenges the action of the University of Delhi and the authorities of the Maulana Azad Medical College, cancelling the admission of the petitioner as a medical student, on the ground that he had obtained admission on the basis of a false representation that he belonged to the scheduled Caste and raises, inter alia, an important question as to whether the right to higher or technical or professional education could be treated as an integral part of either the fundamental right or freedom of expression and speech or to carry on any trade or profession and be themselves enforceable as fundamental rights.

(2) In the year 1971, the petitioner, who was admittedly eligible lor admission for a medical course, was admitted in the Maulana Azad Medical College, against a seat reserved for a scheduled cas'c candidate, on the basis of a representation in his application that he belonged lo JulahaJ caste. The petitioner had enclosed with the application a certificate to that effect issued by the office of the Deputy Commissioner. Delhi (Annexure P-2). According to the certificate the petitioner belonged to Julaha caste, which was recognised as a scheduled caste.

(3) The petitioner had, however, been admitted on a provisional basis subject to verification, ft appears that while the petitioner was in the first year of the M.B.B.S. course verification revealed that the petitioner did not belong to any scheduled caste. The provisional admission of the petitioner was accordingly cancelled by an order of the Principal of the college made on November 18, 1971. Subsequently in February'. 1972, on a representation from the petitioner reiterating his claim of being a member of the scheduled caste, the cancellation was rescinded and the petitioner was provisionally readmitted subject to the decision of the Deputy Commissioner on the petitioner's representation. If appears that between the year 1972 and 1975 the process of verification went on at a rather leisurely pace in course of which a reference was made to the Commissioner for Scheduled Castes and Tribes. The Commissioner answered in the negative the reference of the DepulyCommissioner, Delhi, if a member of the Patoli community of Multan, to which the petitioner claimed to belong, was part of the 'weaving caste'. The Commissioner expressed the view that the petitioner did not belong to any scheduled caste. On the basis of this conclusion oF the Commissioner, the Deputy Commissioner, Delhi, informed the college authorities that the petitioner was not a member of the Julaha community and was, thereforee, not a member of any scheduled caste. It is on the basis of this finding and on the recommendation of the college authorities that the University of Delhi advised the college authorities to cancel the admission of the petitioner. Pursuant to this the admission of the petitioner was eventually cancelled by the college authorities by an order of June 9, 1975, Annexure 'A'. It further appears that until the order made by the college authorities, cancelling the admission of the petitioner, the petitioner continued to make progress in the studies and had already spent more than 4 years and was in the 5th and the final year of studies when he filed the present petition in 1975, challenging the cancellation of the admission and the proceedings leading thereto. On the Rule Nisi being issued the petitioner was allowed to appear in the final examination and has since appeared Mi the supplementary examination, subject to the decision of the petition, pending which his result has remained withheld.

(4) Rival contentions raise two questions for consideration :

(1)Whether the impugned action cancelling the admission suffers from any legal infirmity and is on that account liable to be quashed; (2) If so, whether there is any constitutional impediment to the grant of appropriate relief to the petitioner.

Legal infirmity:

(5) The first question that must, thereforee, be determined is whether the impugned action of the University and the college authorities and the proceedings leading to the cancellation of admission suffer from such legal infirmity as would have a vitiating effect.

(6) There has been considerable controversy between the parties as to whether on the material on record the various authorities concerned with the matter were justified in arriving at the conclusion that the petitioner did not belong to the Julaha community and was, thereforee not a member of the scheduled caste- There was also considerable controversy between the parties as to the manner in which the decision with regard to the question was arrived at by the Commissioner for Scheduled Castes and Tribes, the Deputy Commissioner, Delhi and the University and college authorities, in particular, whether the petitioner had been granted reasonable opportunity of being heard by the various authorities before arriving at a conclusion adverse to him with regard to his status as a member of the scheduled caste- None of these contentions are, however, of any avail to the petitioner. True, material. inter alia, consisting of copy of record of certain judicial proceedings involving the grand father of the petitioner was placed on the record which described the petitioner's grand father as belonging to the 'Patoli' community of Multan and there may be some force in the contention that the expression 'Patoli', on a reasonable construction, could be said to be analogous to the profession of weaving and may, thereforee, provide a basis for the further contention that the Patoli community of Multan constituted a class of weavers, forming part of the Julaha community, so as to qualify for being considered one of the scheduled castes- It was, however, for the authorities concerned to arrive at a proper conclusion if the petitioner belonged to a scheduled caste or not end it was not for this Court to either re-assess the material on which the conclusion may be based or to substitute its own conclusion for that of the authorities- There is no substance in the criticism as to the manner in which the decision was arrived at because admittedly at various stages the petitioner was associated with the enquiry and was given an opportunity to produce such material as the petitioner may be advised to in support of his claim- There was some justifiable criticism of the manner in which the enquiry was entrusted to the local police and was held by it because this enquiry was behind the back of the petitioner, apparently from the neighbours of the petitioner and from the residents of the locality but that is of no significance either because this enquiry was conducted prior to the earlier cancellation of admission and could not, thereforee, be said to form a basis for the impugned orders- The contention that the Commissioner's answer to the reference was not categorical is also devoid of any force. Three questions had been posed for the consideration of the Commissioner, namely :

'(1)Whether the members of Patoli Community of Multan belong to weaving caste. (2) If so, whether the members of this community can he treated to be members of Scheduled Caste in India. (3) The nature of distinction between members of Vijh community of' Punjab and members of Patoli Community in Multan.'

These questions were answered by the Commissioner in the following manner :

'1.No such details arc available with us. 2. The question does not arise. 3. No such details are available in this office.'

While it is thus true that there was no categorical answer to the first question because all that the Commissioner said was that no details were available -and there may be some substance in the contention that the Commissioner did not preclude the possibility of Patoli community of Multan being synonymous with the weaving caste and be, thereforee, entitled to be treated as a scheduled caste. It is, however, not possible to ignore the further observation of the Commissioner that the petitioner had been successful in getting a certificate with the connivance of certain officials which would justify an overall inference that on the basis of material available with the Commissioner, he was unable to certify that the petitioner belonged to the scheduled caste.

(7) There is, however, an aspect of the determination of the question of the petitioner's status which introduces a vitiating infirmity. The petitioner was granted admission in the year 1971, subject to verification with regard to his claim of being a member of the scheduled caste.. This admission was cancelled in November 1971 but the cancellation order was rescinded following the petitioner's representation and the petitioner was readmitted, provisionally though, in February 1972. The admission of the petitioner was eventually cancelled in June 1975 by which time the petitioner had completed four years of studies in the medical college and was in the 5th and the final year. During this long period of four years not only the State had incurred considerable expenditure in imparting the requisite education to him, the petitioner had also spent four valuable years of his youth in the pursuit of medical studies and had successfully reached the final year. It is true that the initial admission of the petitioner was provisional and so was the re-admission but that would not justify a verification with regard to the status of the petitioner and the correctness of his representation in that behalf during a long period of four years. In the absence of any definite action after 1972 the petitioner was entitled to assume that by pursuing his studies he was not. wasting his years. Having, thereforee, thus virtually induced the petitioner to continue with the studies unhindered during a long period of four years, out of the total duration of the course of 5 years, it was not open to the authorities to turn round in the year 1975, when the petitioner had already reached the final year, to tell the petitioner that on verification it had been found that the petitioner did not belong to the scheduled caste and had obtained admission by a false representation. This is exactly how the Punjab High Court(l) looked at the matter in a somewhat similar setting of facts. The High Court rightly, with respect, sought support from certain observations of the Superior Court(2) made with regard to the cancellation of admission of a student in the context of facts and circumstances, which were slightly different. It is true that the Calcutta High Court (3) took a contrary view of the matter but that was where the verification had concluded at the initial stage itself. I would, thereforee, have no hesitation in holding that on account of inordinate delay of about four years, during which the petitioner continued his studies, the authorities would be disentitled to revoke the admission of the petitioner, whatever may have been the nature of the petitioner's representation and whether or not the petitioner did or did not belong to the scheduled caste. The impugned order of cancellation of admission would, thereforee, be liable to be quashed on this ground alone. Constitutional bar :

(8) If that be the serious infirmity from which the impugned action suffers, is there any constitutional impediment to the grant of appropriate relief to the petitioner under Article 226 of the Constitution, is the next question that must be considered. The respondents propose an affirmative answer to the question on the ground that, inasmuch as there was no violation of any statute, the case of the petitioner would be outside Article 226(l)(b) of the Constitution of India with the result that no writ or order could be issued to give the necessary relief to the petitioner. On behalf of the petitioner a negative answer is proposed on the ground that the case of the petitioner would be covered by Article 226(l)(a) of the Constitution, proposition which is vehemently contested on behalf of the respondents. Right to receive education how far a fundamental right :

(9) This raises an interesting question as to whether the right to higher education or professional or technical education, which is a prerequisite to the exercise of a number of fundamental rights, such as freedom of speech and expression, and the right to carry on any trade or profession, could by themselves be considered fundamental rights capable of being enforced. On the enactment of the 42nd Constitutional Amendment, a doubt arose if the petition involved the enforcement of any fundamental right, which the petitioner had until then not invoked, and I had, thereforee, referred to a larger Bench the question as to whether in the circumstances the petition would abate in view of the Constitutional amendment. In the Full Bench, the parties agreed that the question of abatement need not be considered because the petition involved a fundamental right. Counsel for the respondents pointed out that there was perhaps some misunderstanding and .that on behalf of the respondents it had never been conceded that the petitioner had any fundamental right to higher or professional education. Subsequently the petitioner was granted leave to urge the additional ground that the impugned cancellation involved an infraction of a fundamental right.

(10) A review of the history of judicial thought in the United States, as indeed in this country, reveals two distinct currents in judicial as well as juristic thinking with regard to the content, scope and the frontiers of fundamental rights embodied in the Constitutional law of these countries. While one view has been to extend and widen the scope of the fundamental rights so as to extend the area of constitutional protection with the aid of the theory of emanation or extension or the need to make the embodied fundamental rights more effective or to treat certain rights as forming an integral part of the named fundamental right, even though such rights are not specifically mentioned, the other line of thinking represents a cautious approach to the interpretation of the constitutional guarantees and represents an attempt to discourage unnecessary judicial extension of the embodied constitutional guarantees. The decisions of the Supreme Court with regard to the fundamental rights are not wanting in instances of these apparently conflicting trends. The decisions of the Supreme Court in the case of A. K. Gopalan(4) and the majority judgment in Kharak Singh's case(5) would fall in the first category, while the minority judgment of Subba Rao, J. in Kharak Singh's case (supra), the decision of the Supreme Court in Satwant Singh Sawhney(6) and certain observations of Mathew, J. in the case of Govind(7) would appear to represent the second current of thought. The recent decision of the Supreme Court in the famous case of ' Maneka Gandhi(8) would appear to have affixed its seal of approval on the principle that even if a right was not specifically named in the fundamental rights chapter of the Constitution, it may still be a fundamental. mental right covered by some clause of its various articles, ifi' it was an integral part of a named fundamental right or par look of the same basic nature and character as an embodied fundamental right. even though it was not enough that the right, claimed merely flows or emanates from a named fundamental right or that its existence was necessary in order to make the exercise ol' the named fundamental right meaningful and effective. Following this decision, a Division Bench of this Court, to which I was a party, held in the case of Anand Vardhan Chandel(9) that the right to receive higher or professional education was itself a fundamental right, which would be spelt out of a number of clauses of Article 19(1) read with Article 21 of the Constitution of India, even independently of Article 41 of the Constitution. If the right to receive higher education or a professional education, which is a pre-requisite to practicing a particular trade or profession or to exercise some of the fundamental rights, such as the right to freedom of expression, be in themselves fundamental rights on the basis of the aforesaid theory, there would be no escape from the conclusion that when the petitioner was sought to be deprived of the opportunity to pursue medical education by an improper order, the impugned action would constitute an infraction of his fundamental right. However, in the present state of the law. it is not easy to hold either with reference to the theory of emanation or extension or that of the integral part of a named fundamental right to say that any or every denial of an opportunity to carry out professional or technical education or studies would necessarily impinge on the fundamental right to carry on any trade or profession for which such technical or professional study may be a pre-requisite. Such a conclusion would perhaps have to wait for further developments in law and the law in this behalf would have to develop on a case to case basis. There can, however, be no doubt in the context of the legal position that obtains today that the decision of the Supreme Court in the case of Maneka Gandhi (supra) and the legal thought that has been thrown up by the decision of this Court in the case. of Anand Vardhan Chandel (supra) that where the right to pursue professional or technical studies, the completion of which would directly entitle a student to practice a profession, as in the present case, any improper interference in such a pursuit would attract the fundamental right to carry on the profession because the right to carry on the profession would be directly interfered with by such an improper action. In this view of the matter, there would, thereforee, be no constitutional impediment to the grant of appropriate relief to the petitioner and the relief would, thereforee, be justified in the enforcement of the fundamental right.

(11) In the result, the petition succeeds, the impugned order of cancellation of admission is quashed. The authorities would declare the result of the petitioner and he would be treated in accordance with law on the result being so declared.

(12) On the constitutional changes brought about during the Emergency, it almost appeared that the petition was perhaps liable to abate and the case of the petitioner was lost beyond any possible hope or redemption. It was, thereforee, referred to a larger Bench in the hope that there may perhaps be some silver lining in the otherwise dark horizon. There was some ray of hope when it was suggested that the petition involved a fundamental right which became brighter on account of recent judicial thinking incorporated in the decision of the Supreme Court in the case of Maneka Gandhi (supra) and, following that, the decision of this Court in the case of Anand vardhan Chandel (supra), with the result that by the piecing together of logic, reason and certain principles, it has been possible to arrive at the happy conclusion so as to save the career of a young medical student from cloud, if not virtual oblivion.

(13) It must. however, be pointed out in all fairness to the University and the college authorities that, apart from the delay involved in the determination of the status of the petitioner, the authorities acted without any animus and in a just and fair manner. The educational authorities are in locus parents to the students, who enter the portals of these temples of learning and is for this reason that courts are very reluctant to interfere in the domestic affairs of such institutions. Where, however, such interference is necessary in the interest of justice, as in the present case, such interference becomes a duty. Nevertheless, the anxiety of the University and the college authorities to take a serious view of the misrepresentation that may have been made by the petitioner probably in his anxiety to secure admission, which otherwise may not have been possible, is quite understandable and the relief that this Court is granting to the petitioner should not in any manner be understood as condoning any such act, for, whatever be the end, no end would justify the means. In the circumstances, the petitioner would not have his costs.


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