B.S. Patil, J.
1. In this writ petition, the petitioner-student is challenging the communication dated 17.6.2009 issued by Respondent No. 2 vide Annexure-A expressing regret that on close scrutiny of the OBC list issued by the Government of India, the caste of the petitioner does not appear in the list even though it is found in the State OBC list and, as such, her admission has been cancelled. Petitioner is informed to collect her original marks card along with the fees. Petitioner is also seeking a direction to Respondent No. 2 - The Coordinator of All India Institute of Speech & Hearing, to forward the OBC list to Respondent No. 4 the State of Karnataka. A further direction is sought to the State Government to forward this OBC list to the Central Government so as to enable the Central Government to include 'Kodeva' caste in the list of OBC of the central list. (This prayer is not clear. However, the petitioner's counsel submits that, in substance, this is the request of the petitioner.)
2. Petitioner has completed her II PUC and she intended to pursue her further studies by joining B.Sc. in Speech and Hearing. She submitted an application seeking admission to the said course before Respondent No/2 institution. Petitioner belongs to 'Kodeva' community, which is recognized by the State as OBC (Other Backward Classes) coming under category 3-A. In support of this assertion, the petitioner has produced a certificate issued by the jurisdictional Tahasiidar at Annexure-E.
3. Entrance examination was conducted on 6.6.2009 as per the prospectus issued by Respondent No. 2. Petitioner secured 20th rank in the OBC quota and her ranking in the merit list is 88 as per the rank list of Annexure-F of the OBC Category. Petitioner was called for counselling for selection to B.Sc. (Speech & Hearing) course vide letter dated 11.6.2009 issued by Respondent No. 1. She appeared for counselling on 16.6.2009 and was selected for the said course. On the very day i.e., on 16.6.2009, she was admitted to Respondent No. 2 institution by collecting a fee of Rs. 9,885/- as is evident from Arinexure-J receipt. The petitioner was also made to execute an indemnity bond as per Annexure-H. As she was to be paid some stipend, she was required to execute a bond agreeing to certain conditions. However, by a communication dated 17.6.2009, the Academic Co-ordinator of Respondent No. 2 institution has informed the petitioner that her admission stood cancelled as her caste is not mentioned in the OBC list issued by the Government of India, though it finds a place in the list of OBC issued by the State of Karnataka. Aggrieved by this action, the present writ petition is filed.
4. The main contention of the learned Counsel for the petitioner Shri Slivaram Bhat is that, as is clear from the prospectus issued by Respondent Nos. 1 and 2, the requirement at page-20 of the prospectus for claiming reservation under the OBC category is denoted by mentioning the letters 'OBC' and the total number of seats mentioned as against the OBC category is -General - 9 and SFS - 8 (Self Finance Scheme) and total 17. Therefore, his contention is that, in the absence of anything mentioned in the prospectus indicating that in the OBC category OBCs in the list of the State Government will not be considered for the purpose of reservation, it is not open for the respondents now to contend that the reservation was wrongly taken note of by Respondent No. 2 institution.
5. His next contention is that, there cannot be two lists of OBC - one by the State and another by the Centre, as otherwise, it will lead to anomalous situation where a person belonging to a particular caste can be treated as OBC so far as the State is concerned and can be excluded from-the said benefit so far as the Centre is concerned.
6. It is his next contention that once admission is made by collecting fees, it is not open for the respondents to cancel the admission as it will prejudicially affect the academic career of the petitioner. He points out that the last date for admission in all other institutions is over and the petitioner, if asked to leave Respondent No. 2 institution, will have to forego one precious academic year for no fault of her.
7. Shri Narayanaswamy, learned Counsel for Respondent Nos. 1 to 3, taking me through the statement of objections filed, contends that Respondent No. 2, being a central education institution fully funded by the Central Government, is bound by the OBC list issued by the Central Government and in the OBC list issued by the Central Government as the Kodava caste is not included as OBC, the petitioner is not entitled to claim the benefit, of the OBC category. In this regard, he brought to the notice of the court, the provisions contained in the Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007 hereinafter referred to as Act: 5 of 2007) and the provisions contained in the National Commission for Backward Classes Act, 1993. He has drawn special attention of the court to the provisions contained in Section 2(g) of Act 5 of 2007. So far as the definition of the expression 'Other Backward Classes' (OBC) is concerned, he has also referred to Section 3(iii). Insofar as the National Commission for Backward Classes Act, 1993, reliance is placed by the learned Counsel on Sections 2, 3, 9 and 11. He has also placed reliance on the Office Memorandum dated 20.4.2008 issued by the Government of India, Ministry of Human Resource Development, Department of Higher Education, produced at Annexure R-10, along with the additional documents tiled with a memo on 22.7.2009, to show that the list of Socially and Educationally Backward Classes/OBCs is prepared by the Central Government by modifying the same from time to time, based on the advice of the National Commission for Backward Classes.
8. Shri Manohar, learned AGA, has contended that so far as the list published by the State is concerned, it has application for the institutions coming within the jurisdiction of the State and Respondent No. 2 institution, being controlled and funded by the Central Government, the OBC list published by the Central Government will have relevance and the 'Kodeva' caste, not being recognized as Other Backward Class in the OBC list of the Central Government, the petitioner cannot, as of right, claim reservation under the said category ill Respondent No. 2 institution.
9. Having heard the learned Counsel for the parties and on the basis of the material on record, the question that falls for consideration in this case is,
(i) whether the petitioner is entitled to claim the benefit of reservation under OBC category for admission to Respondent No. 2 institution'.
(ii) If answer to the above question is in the negative, whether the petitioner deserves to be permitted to prosecute her studies in Respondent No. 2 institution having been given admission and in the context, of the other avenues of getting admitted in other institutions, both Central and State, having been closed to her due to lapse of time.
10. Article 340 of the Constitution of India provides for appointment of a Commission to investigate the conditions of backward classes. Sub-clauses (1) to (3) Article 340 read as under:
(1). The President may by order appoint, a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose of the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission.
(2) A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper.
(3) The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament.'
11. The National Commission for Backward Classes Act, 1993 is enacted with a view to constitute a National Commission for Backward Classes other than the Scheduled Castes and the Scheduled Tribes and to provide for matters connected therewith or incidental thereto. The functions of the Commission, as can be seen from Section 9, include the duty to examine the requests for inclusion of any class of citizens as a backward class in such lists and hear complaints of over-inclusion or under-inclusion of any backward class in such Lists and tender such advice to the Central Government as it deems appropriate and the advice of the Commission shall ordinarily be binding upon the Central Government.
12. Section 11, which provides for periodic revision of lists by the Central Government, states that Central Government may, at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes.
13. Section 2(a) defines the expression 'backward classes' to mean such backward classes of citizens other than the Schedules Castes and the Scheduled Tribes as may be specified by the Central Government in the lists.
14. Likewise, Section 2(g) of Act. 5 of 2007 defines the term 'Other Backward Classes' to mean the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government Act 5 of 2007 provides for reservation of seats in Central Educational Institutions. Section 3 states that the reservation of seats in admission and its extent in a Central Educational Institution shall be provided in the manner listed therein. Sub-clause (iii) of Section 3 states that, out of the annual permitted strength in each branch of study or faculty, twenty-seven percent seats shall be reserved for the Other Backward Classes.
15. The validity of the provisions contained in Section 3(iii) of Act. 5 of 2007 fell for consideration before the Apex Court in the case of Ashoka Kumar Thakur v. Union of India reported in 2008 AIR SCW 2899. While upholding the constitutional validity of the reservations provided in favour of backward classes, in paragraph-186, the Apex Court has observed as under;
186...Therefore, it is incorrect to say that the Union of India has been given wide powers to determine the backward classes. The challenge of Act 5 of 2007 on that ground fails.
In fact, the Apex Court raised a question for consideration as under;
Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid?
The questioned raised has been answered in the affirmative. Stating inter alia that there is already a National Commission and also various State Commissions dealing with the affairs of the backward class of citizens in this country, for the purpose of enforcement of the legislation passed under Article 16(4), the backward class of citizens have already been identified and has been in practice since the past 14 years and it is in this context that the Union of India has been given the task of determining the backward classes.
16. In the light of the provisions of Act, 5 of 2007 and the provisions contained in the National Commission for Backward Classes Act, 1993 and the admitted fact that the Central Government has prepared and published a list containing the cast's which are recognized as Other Backward Classes for the purpose of reservation, it cannot but be stated that if any reservation is sought for the purpose of admission to a centrally administered and funded institution under OBC category, the concerned candidate has to satisfy the requirement of status as OBC as recognized in the list published by the Central Government. Admittedly, 'Kodeva' caste is not recognized as OBC in the central list issued in this regard. Though the State Government has treated this caste as a caste coming under category 3-A and has extended the benefit of reservation for admission in the State institutions, the same cannot be a ground to direct the Central Government to extend the same benefit so far as the admission to Respondent No. 2 institution is concerned.
17. It is indeed difficult to appreciate how a caste can be backward deserving reservation in respect of admissions and appointments under the State run or aided institutions but not so in respect of Central institutions. Such an anomaly normally should not exist. However, it is not necessary to go deep into this aspect in this case as the criteria adopted by the State in classifying different castes into categories such as 2A, 2B, 3A, 3B etc., is based on several factors. At least learned Counsel representing both the Central and the State Government have not placed sufficient material before the court either by way of pleadings or by way of documents to appreciate the basis for such an anomaly. Therefore, I desist from entering into any further analysis of this aspect.
18. As already adverted to herein above, the provisions contained in Act, 5 of 2007 read along with the provisions of the National Commission for Backward Classes Act, 1993, viewed in the backdrop of the provisions contained in Article 340 of the Constitution, the Central Government is entitled to prepare a list of castes which can be categorized as 'Other Backward Classes' for the purpose of giving reservation. That being the position, the contention urged by Shri Shivaram Bhat stating that since the State has extended the reservation to Kodava community treating it as 3-A category, it should be treated as such for the purpose of admission to Respondent No. 2 institution cannot be accepted.
19. As regards the next question urged by the petitioner that for no fault, of her, petitioner's admission is cancelled and due to passage of time, the chance of her admission to the other institutions even under the State recognized colleges has been closed, resulting in the petitioner being pushed in to serious prejudice of losing one precious academic year is concerned, I find considerable force in this submission. In fact, this Court, at the time of preliminary hearing on 16.7.2009, issued a direction to the respondents not to 1111 up one seat, if the seat for which the petitioner was selected was not yet filled up. Subsequently, on 30.7.2009, by a detailed order passed, this Court, taking note of the fact that: there was likelihood that the seat, reserved may lapse because of the delay in final disposal of the writ petition,, issued a direction taking note of the balance of convenience that Respondent Nos. 1 and 2 shall consider the case of the petitioner based on the certificate issued by the jurisdictional Tahasildar and admit her to the current academic year subject to further orders to be passed by this Court.
20. Though Shri Narayanasharma submits that even after passing of this order, the last date for admission was extended and, therefore, an application was filed for modifying the interim order, the fact remains that even the extended period for admission has since expired and the petitioner is now left with no option but to sit idle for the current academic year. This position is obtained not. because of any lapse on the part of the petitioner but because of the mistake committed by Respondent No. 2 institution in giving her admission based on the certificate issued by the Tahasildar showing her as a person belonging to category 3-A recognized as OBC under the State list;. This is not a case of misrepresentation by the petitioner while obtaining the admission. Petitioner is totally innocent and has got herself admitted by paying the requisite fees.
21. Though I have held that, so far as the Central Government institutions are concerned, the list issued by the Central Government has to be followed and if the caste of the candidate is not categorized as OBC in the Central list, no legitimate right accrues to such candidate to seek admission. In the peculiar facts and circumstances of this case and having regard to the mistake committed by Respondent No. 2 in giving admission by collecting fees from the petitioner and particularly keeping in mind the passage of time that has resulted in serious prejudice to the interest of the petitioner, I am persuaded to hold that the petitioner is entitled to pursue her studies in the Respondent No. 2 institution keeping in mind that she has no other option open now and she cannot be admitted to any other institution. It is also not the case of Respondent No. 2 that they have admitted any other deserving candidate belonging to OBC recognized by the Central Government in place of the petitioner. Therefore, the seat will go waste if the cancellation of admission of the petitioner is approved. Such an eventuality should not be allowed to happen, as it is not either in the interest of the institution or in the interest of the petitioner.
22. Accordingly, the writ petition stands disposed of with the following direction:
Prayer made by the petitioner in prayer l.(a) is rejected.
Though the prayer made by the petitioner in prayer l (a) is rejected, the letter Annexure-A issued by Respondent No. 2 canceling the admission of the petitioner is set aside. Respondent No. 2 is directed to permit the petitioner to prosecute her studies in the seat to which she is admitted. The relief granted and the observations made in favour of the petitioner are confined to the case of the petitioner only.
The operative portion of this order shall be handed over to the counsel for the parties forthwith.