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Judgments of Supreme Court of India and High Courts

Ms. Naman Varma vs The Director, The Indian … on 17 April, 2018

hcs
wp6818.2013

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.6818 OF 2013

Ms. Naman Varma .. Petitioner.
Vs.
The Director,
The Indian Institute of
Technology,Mumbai Ors. .. Respondents.

WITH
CIVIL APPLICATION NO.2402 OF 2013
IN
WRIT PETITION NO.6818 OF 2013

The Director,
The Indian Institute of
Technology,Mumbai Ors. .. Petitioners.
Vs.
Ms. Naman Varma .. Respondent.

Mr. Ratan Samal with Mr. Manohar Samal i/b M/s. Ratan Samal Associates for
the Petitioner and respondent in CA No.2402/2013.
Mr. Aseem Naphade with Mr. Nhikil Shetty i/b M/s. M.V. Kini Co. for the
Respondent Nos.1 and 2.
Ms. Madhubala Kajale with Mr.A.R.Varma for Respondent No.3 – Union of
India.

CORAM : M. S. SANKLECHA
A. K. MENON, JJ.
RESERVED ON : 22ND FEBRUARY, 2018
PRONOUNCED ON : 17TH APRIL, 2018

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JUDGMENT (PER A.K. MENON, J.)

1. By this writ petition, the petitioner seeks a writ of mandamus under

Article 226 of the Constitution of India directing the respondent-institute to

consider the application form filled by the petitioner under the Physical

Disability (PD) category and admit the petitioner to the course of Master of

Design 2013 batch.

2. The facts in brief leading to the present petition are as under : The

petitioner is a resident of Mumbai and has secured degree in Bachelor of

Design (Product Design) from Symbiosis International University. She suffers

from a learning disability known as ‘Dyscalculia’. As a school student, while

appearing for Secondary Board examination, the petitioner was granted a

special privilege both in terms of time and marks by the Maharashtra State

Board for Secondary and Higher Secondary Education. She relies upon a

certificate granting privilege dated 17 th June, 2006 and 19th August, 2006.

Even in the Junior College while undergoing studies for Class XI and XII

special concession were given by the concerned college. She has relied upon

the certificate granting this privilege on account of said learning disability. It

is contended that despite her learning disability the Symbiosis Institute of

Design found her to be a good student in the Product Design faculty and her

candidature was recommended for graduate studies in design. Apparently

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dyscalculia is directly associated with the disability in dealing with numbers.

3. On or about 25th November, 2012 the petitioner states that she made an

online application through website of the Indian Institute of Technology

under Common Entrance Exam for Master Design known as CEED 2013. It

is her case that the application form did not contain any provision requiring

learning disability to be declared. The application form was therefore filled in

under the general category. CEED 2013 consisted of two parts, Part A and

Part B. The petitioner appeared for both exams. The requirement of the

respondent IIT was said to be minimum 64% in the general category to enable

the applicant/student to secure admission in the course. In the OBC category

the student required 57.6% and for SC/ST/PD category requirement was 32%.

On or about 26th December, 2012, the results of the petitioner’s examination in

respect of Part ‘A’ for entry into IIT was declared. The petitioner had secured 50

marks out of 100 marks in the Part ‘A’ examination results. Thus, not making

the entry as required under the general category which required minimum

percentage of 64% so as to declare her result in Part ‘B’ for the IIT admission.

The petitioner noted that qualifying marks in Part ‘A’ exams for PD category was

only 32% as indicated in the mark-sheet. A copy of the mark-sheet has been

annexed at Exhibit-G to the petition. The mark-sheet contained reference to

the SC/ST/PD category.

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4. In the above circumstances, the petitioner was set thinking, if PD indicates

physical disability, would she qualify under that category for admission on

account of learning disability. The petitioner made an inquiry about the PD

category since one of the conditions mentioned in the application form

required any discrepancy to be clarified within a period of 15 days. The

petitioner states that she had submitted a learning disability certificate and

requested the college to consider her in the PD category since she had scored

50 marks as against 32 required under the PD category and she was directed

to file a fresh form, a copy of which is annexed at Exhibit-J. According to her,

this fresh form was duly accepted and acknowledged by the respondent-

institute. Thus, the petitioner approached the respondent institute by letter

dated 27th December, 2012 stating that a learning disability should also be

considered under the Physical Disability category on the basis of one of the

conditions that any discrepancy should be brought to the notice of the CEED

within 10 days. This was followed by another letter dated 4 th January, 2013.

However, the Professor and Head of the Industrial Design Center at IIT, Mumbai

informed the petitioner that under the Ministry Guidelines, the PD is applicable

only in case of (i) Physical Disability (loco motor and cerebral palsy) (ii) visual

impediments (iii) speech and hearing impediments. Thus, indicating that the

petitioner cannot be classified under the PD category.

5. It was thereafter that the petitioner sought legal opinion with regard to

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her admissibility to the respondent Institute under the category of persons with

learning disability. The legal opinion received by the petitioner on 13 th

February, 2013 was to the effect in view of the provisions of the Act, the

petitioner would classify to be a person with disability under the Act. This view

was supported by the decisions of Delhi High Court in Disabled Right Group Vs.

Delhi University CWP 155 of 2004 dated 16 th June, 2004 and in Dr. Rama

Shanna Vs. University of Delhi, 106 (2003) DLT 97. It was in view of the

aforesaid legal opinion that the petitioner again approached the Professor and

Head of Industrial Design Center, IIT, Mumbai claiming that she would be

entitled to PD category as a person with disability. However, Professor and

Head of the Industrial Design Center, IIT, Mumbai informed the petitioner that

she is not eligible for admission as she has made an application in the general

category and learning disability does not fall within the ambit of Physical

Disability under the ministry guidelines. The petitioner claims that the Head of

Department IDC of the respondent was appraised of the legal opinion obtained

by the petitioner and the fact that learning disability is also one form of

disability contemplated under the Act and the petitioner’s application should be

considered. Meanwhile the IDC informed the mother of the petitioner that IDC

had difficulty in considering the case since the petitioner was assessed for

CEED in the general category and that she had not qualified in that category. It

was contended that under the Ministry guidelines the PD category would

only cover Physical Disability, Visual impairment, Speech and Hearing

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Impairment and therefore HOD IDC had difficulty in considering learning

disability under PD category and further it was suggested that the petitioner

could request CEED to consider learning disability under the PD category.

6. On 6th March, 2013 the petitioner made a representation to the Deputy

Chief Commissioner, Ministry of Social Justice and Empowerment Department,

of Disability Affairs at New Delhi. By the said representation, the petitioner

pointed out her predicament. In response thereto, the Deputy Chief

Commissioner of Persons with Disabilities informed the Director, IIT that the

Chief Commissioner had advised the respondent to consider the admission of

the petitioner in post graduate design course after submission of disability

certificate issued by the authorised medical authority. The said communication

dated 8th April, 2013 inadvertently appears to have mentioned the

petitioner’s disability as Dyslexia instead of Dyscalculia. In any event, it is the

petitioner’s case that despite said communication the petitioner’s case has not

been considered by the respondent.

7. A personal hearing was thereafter set up by the Court of the Chief

Commissioner wherein the petitioner and the respondents were directed to

appear. While the petitioner was present, none appeared on behalf of the

respondents. The petitioner’s say was recorded. The respondent not having

attended the hearing before the Court of the Chief Commissioner addressed a

communication dated 6th May, 2013 was received by the Court of the Chief

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Commissioner from the Registrar, IIT, Mumbai wherein it was stated that the

petitioner had applied for CEED 2013 which is a qualifying round subject to

further tests and interview and the application of the petitioner was not in the

PD category that she wished to change to the PD category after the results

were announced and while applying for admission to the Master of Design

(M.Des) course in the Industrial Design Center of the IIT Mumbai (IDC). CEED

does not permit to change the category and the petitioner had not qualified

in CEED course under general category cut off which was required to evaluate

CEED part B and only if part B was evaluated it would entail a chance to appear

for tests to be conducted by IDC.

8. It is contended that the petitioner did not qualify in CEED 2013 and

therefore her application vide the fresh form, for admission to M.Des at the IDC

could not be considered. The petitioner’s parents attended the hearing before

the Court of the Chief Commissioner on the scheduled date i.e. 25 th June, 2013.

The respondents did not appear. On behalf of the petitioner it was contended

that as on date of the submission of online application for CEED 2013 she was

not aware that the PD category existed and therefore she applied under the

general category. She learnt of the PD category only when the results were

declared on 26th December, 2012. The mother of the petitioner had apparently

met the HOD IDC and requested him to consider the case of the petitioner in

the PD category, but she was informed that the disability certificate submitted

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was of 2006 and a fresh certificate should be obtained. It is thereafter that the

petitioner had obtained a fresh certificate dated 4 th January, 2013 from the

Learning Disability Clinic, K.E.M. Hospital, Parel and the same came to be

submitted on 17th January, 2013.

9. The petitioner then received a call from Professor Roy the HOD IDC

asking the petitioner to meet him along with the CEED application form. Since

the petitioner was at that time studying at Pune she was called to provide

particulars. On 18th January, 2013 all requisite papers sought by Professor

Roy were submitted and the petitioner’s mother was informed that the papers

submitted will be placed before the Dean for his consideration. At that stage

the petitioner’s mother was uncertain whether the PD category was provided

for in the online application form of CEED. On behalf of the petitioner

meanwhile the application form seeking admission to CEED course was

submitted on 18th January, 2013 along with certificate of disability dated

4th January, 2013 issued by the K.E.M. Hospital, Mumbai. This form was

accepted. The petitioner’s mother also submitted a copy of the judgment of the

Delhi High Court in case of Dr. Rama Shanna vs. University of Delhi and

Others1 in which the University of Delhi had by an affidavit recorded the

fact that Vice Chancellor of the University has granted his approval under 3%

disability quota for the persons suffering from dyslexia with 40% or more

disability as contemplated under Section 39 of the Act. The Delhi High Court

1 2003 SCC Online Del 720

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in its order observed that in the opinion of the Director General of Health

Services and the revised view of the Chief Commissioner of Persons with

Disabilities, the University can certainly include dyslexics with 40% or more

disability for the grant of benefits under Section 39 of the Act. In view of the

said submissions the Chief Commissioner directed the respondent IIT to

clarify whether the PD category was mentioned in the online application or

not and the candidates selected under the PD category. Apparently, no reply

was received to the said direction.

10. It was in the above background that the petitioner approached this Court

by filing this petition. The respondent filed an affidavit dated 2 nd August, 2017

opposing the admission and grant of interim relief. Pending the final disposal of

the petition, the petitioner sought an interim direction to declare the Part

exam results by considering Part A results under PD category and directions

to the respondents to disclose whether 3% reserved quota under the

category of Persons with Disability (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995 (Act) has been filled.

11. In the affidavit dated 2nd August, 2013 the respondent admits that the

paramount interest of the Institute is to help the examinees while planning

each stage of the examination and conducting it in a most student friendly

manner. There are no malafides or malice against the petitioner and all

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allegations were sought to be denied. Having examined relevant records made

available to the deponent by the department handling the Common Entrance

Exam for Designs CEED 2013, it is contended that there is no inaction on the

part of CEED or other authorities and for considering the process of

registration for CEED 2013, the petitioner has not mentioned her category as

that of a Person with Disability and that it was essential to mention the

category properly but she did so only after the exam. Even on the day of the

exam, she did not seek change of category. It was further pointed out that the

course has already commenced since 28th June, 2013. Therefore the petition

should not be entertained.

12. The deponent has explained that CEED is conducted on all India level

and there are two question papers Part A and Part B. Part A is evaluated first.

If the candidate qualifies in Part A, then only Part B is evaluated for M.Des

course. According to the respondent, the petitioner did not qualify for Part A

and therefore Part B was not evaluated. In order to qualify for the Master of

Design 2013 it was necessary to qualify in both Part A and Part B, only then

would a candidate be eligible to apply for admission and merely by qualifying

in Part A and Part B there will be no guarantee that the candidate will get

admission in IIT, Mumbai by qualifying in CEED after obtaining sufficient

remarks in Part A and Part B. The respective institutes conduct written test

and interview.

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13. On 5th August, 2013 the petition was admitted, the respondents were

directed to consider the petitioner for admission to M.Des Programme and for

that purpose to declare the petitioner’s result in Part ‘B’ examination conducted

by CEED by considering the petitioner as falling under the category of persons

with disability in the Part ‘A’ examination. This Court relied upon the Delhi

High Court order dated 13th January, 2010 and 12th March, 2010 in Writ

Petition (L) No.10055 of 2004 Disabled Rights Group Vs. Delhi University Ors.

which in turn referred to the affidavit of the Deputy Commissioner for

Disabilities relying upon the opinion of Directorate General of Health Services

that dyslexia can be considered as a disability under the mental retardation

category under the Act. The respondents were also directed to permit the

petitioner to attend classes in the Post Graduate courses in M.Des. without

prejudice to the rights and contentions of the parties. Besides, it was clarified

that the selection process for taking a final decision in admitting the petitioner to

a post graduate course in M.Des in the PD category i.e. category of persons with

disability, could be carried out by the respondents. Thereafter, in accordance

with the directions of the Court, the Part ‘B’ results of the examination was

declared and the petitioner was declared “pass” under the PD category.

14. A further affidavit dated 30th August, 2013 of the same deponent

records that as per the interim order dated 5 th August, 2013 the petitioner was

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permitted to attend classes in the post graduate course in Master Design

without prejudice to the rights and contentions of the parties. In the meantime,

IIT had verified the contents of Part B answer book of the petitioner along with

three candidates under the general category with similar scores so that the

identity of the petitioner is not revealed to the team of examiners. The

examiners chosen were those who had examined all the CEED answer books

and based on the CEED 2013. The cut-off marks in Part B for general category

was 59%, for OBC 53.10% and SC/ST/PD 39.33%. The petitioner had obtained

35 marks out 100 which was lower than the PD category cut-off. Hence the

petitioner had not qualified to be admitted to M.Des programme under PD

category. It is further stated that a Committee comprising the faculty as

appointed by the respondent has conducted written and studio tests followed

by an interview on 14 th August, 2013, as it is normal selection process.

While assessing the petitioner the tests and interview included examining the

candidates of various abilities such as creativity, imagination, sketching,

articulation, material dexterity, knowledge of materials and processes and

aesthetic sensitivity. Based on this assessment the petitioner had scored a

total of 32.75 marks i.e. less than the cut off marks of 50 required is case of PD

slot. Hence the deponent has stated that the petitioner is not entitled to pursue

the M.Des program with the IDC in the PD category The petitioner has not

challenged the fact that she has not qualified under the PD category in the IDC

test consisting of studio and written test followed by an interview. However, we

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specifically asked the parties whether pointed attention to the above facts was

drawn when the interim orders were being passed by the Court. The Counsel

for the parties state that specific attention was not drawn of the Court to the

above test and the petitioner failing it. This led the Court to pass interim orders

under which the petition completed her course. This fact was brought to the

attention of the Court for the first time on 29 th July, 2016. This aspect of the

matter was not adverted to in any of the interim orders passed by this Court as it

appears that none of the two parties had drawn attention of the Court to the

same. Therefore, the interim order dated 5 th August, 2013 was continued and

the petitioner was allowed by virtue of the Court’s order to complete her course

for M. Des at the respondents’ Institute. All interim orders were passed

specifically stated that it is without prejudice to the rights and contentions of the

parties.

15. A third affidavit of Dr. R. Premkumar, who is the Registrar of the

respondent no.1-Institute has also been filed. He has contended that the

petitioner has made no allegations of any illegality or in propriety in

assessment of Part B and the subsequent admission tests where she has not

succeeded. The petitioner had not qualified with cut-off marks even in the PD

category. The marks required in Part B in order qualify for IDC admission

test was 39.33 marks whereas the petitioner has scored only 35 marks in Part B.

She had thus failed to obtain minimum passing marks. The affidavit further

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discloses that a valid CEED scorecard only entitles a candidate to apply for

various design programmes in the country and based on the scores in CEED

he/she could apply to various institutes which then conduct their own

admission tests as part of the selection process. The petitioner has on 4 th

September, 2013 made a reference to the fact that 11 candidates had been

admitted to the course and reference is made to the scorecard of those

candidates. The deponent states in respect of those 11 candidates states that

SC/ST/PD qualifying marks printed on the official scorecard is only a cut-off

to obtain a valid CEED scorecard which entitles a candidate to apply for

various design programmes. The IDC at IIT Bombay also has an admission

test for its M.Des programme. According to the deponent 11 candidates have

not only qualified in CEED but have also passed the admission tests in IDC, IIT

Bombay before being granted admission to the M.Des programme and the

petitioner has allegedly misled the court by withholding information about

requirement of the additional admission test of IDC, IIT Mumbai.

16. The deponent has further stated that the petitioner’s counsel and her

mother had made allegations about alleged ego issues that the Professors

had displayed all of which were made across the bar and no affidavit is filed

alleging malice against the petitioner by any of the professors. It is expressly

stated in the affidavit that continuing orders of the Court did not confer any

right on the petitioner and that a wrong precedent would otherwise be set

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even after a candidate is comprehensively disqualified in the admission

process is allowed to complete the course. The high degree of principles and

procedures followed by the IIT Bombay in fairness of examination held has

been adverted to.

17. The Court therefore found that the interests of justice would be served

only if the respondent is directed to permit the petitioner to attend the classes

in the post graduate course in Master of Design without prejudice to the rights

and contentions of the parties. On 4 th September, 2013 a further order came to

be passed directing the respondent nos.1 and 2 to place the Admission Rules

of the respondent institution on record and directing the petitioner to appear

for mid term examination December 2014. Though by an interim order dated

7th May, 2014 permitting the petitioner to continue in the second year came to

be challenged before the Supreme Court in SLP 18275 of 2014, the SLP came to

be disposed of and the High Court was requested to hear the matter.

18. A Civil Application taken out by the petitioner came to be disposed of

since the petitioner stated that she had repeated the term and had cleared the

examination in Nature of Materials and Processes under further orders of this

Court. On 10th December, 2014 the counsel for the respondent no.3 placed on

record the petitioner’s results for the three Academic Semesters 2013-1,

2013-2 and 2014-1 and this Court also directed the respondent to accept the

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petitioner’s fees for the fourth semester and permitted the petitioner to appear

at the examination. Accordingly, the matter was scheduled to be heard on 19 th

January, 2015. In an affidavit filed on 29 th July, 2016 the Division Bench

hearing the matter found that a false statement was made by Mr. Chintamani

Joglekar in the affidavit dated 30 th August, 2013 wherein he contended that the

passing marks belonging to PD category is 39.33% whereas counsel appearing

on behalf of the respondent after verifying the record conceded that passing

marks for a candidate belonging to PD category is 25%. In view of this

statement, the Court issued notice to Mr. Chintamani Joglekar as to why

action under the provisions of Section 181 and 182 of the Indian Penal Code

should not be initiated again him and why procedure under Section 340 of the

Criminal Procedure Code should not be followed. The matter thereafter came

to be adjourned to 12th August, 2016.

19. Vide order dated 31st August, 2017 passed on the administrative side this

petition along with civil application No.2402 of 2013 came to be assigned to

this Court.

20. Mr. Samal, learned counsel for the petitioner has taken us through the

pleadings in the petition. Mr. Samal submitted that pursuant to the interim

order passed by this Court from time to time, the stressed upon the fact that the

petitioner, who was suffering from dyscalculia i.e. learning disability was

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granted privilege for appearing class XI and XII examination. In CEED 2013

the petitioner had secured 50 marks in general category. On the next date the

petitioner submitted a request along with learning disability certificate to

consider the petitioner under PD category. It is Mr. Samal’s case that the office

of IIT, Mumbai directed the petitioner to submit latest disability certificate.

After obtaining the one from K.E.M. Hospital, it is the petitioner’s case that on

18th January, 2013 she was directed to fill an application form under PD

category which she did, when she was informed that the learning disability

does not fall within ambit of physical disability.

21. Mr. Samal has taken us through various interim orders passed and it is

his contention that the petitioner is entitled to succeed in view of the Supreme

Court having taken a view in similar circumstances in a case of Visveswaraiah

Technological University and Anr. vs. Krishnendu Halder and Ors 2 in which

case two students, who were admitted in the year 2007-08 by virtue of the

interim order, continued their studies and were to complete the course in few

months. In the facts and circumstances of that case the Court found that their

admissions should not be disturbed but should be regularised and they

should be permitted to appear for examination. He, therefore, submitted that in

the instant case the petitioner being similarly placed and having completed

examinations in all semesters and having passed all examination be treated as

admitted in the course and therefore it is submitted that the petition may be
2 (2011) 4 SCC 606

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allowed. Mr. Samal also relied upon the copies of the scorecard of 11 other

students who were admitted to the course and in respect of whom qualifying

marks were shown as 25 for the SC/ST/PD category.

22. As against qualifying marks, 11 students have secured marks in excess

of 50, all of whom had obtained under general category. Apparently, there

were no candidates under OBC/SC/ST or PD category. He submitted that in the

face of qualifying marks being shown as 25 and the petitioner having

admittedly secured 32 the contention of the respondent that the passing marks

were 39.33% is incorrect. He, therefore, submitted that at all material times the

petitioner has been admitted to have been qualified.

23. The application form filled by the petitioner in Product Design course

bears Application No.C134564A. The form in question has an option for

SC/ST/OBC/NC category and PD category. The certificates are required to be

attached with the form. Mr. Samal submitted that the petitioner had submitted

a form along with certificate dated 18 th March, 2006 issued by Lokmanya

Tilak Hospital, Sion which assessed her as suffering from dyscalculia only.

Mr. Samal further submitted that since HOD IDC had indicated that the

petitioner should provide upto date certificate, a fresh certificate was obtained

from K.E.M. Hospital Parel dated 4th January, 2013 which certified her as

having dyscalculia. Mr. Samal relied upon the admit card issued by CEED

2013 and the results secured by the petitioner. The IDC test results declared

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are as under :

CEED Marks Written Test Studio Test Interview Total Marks

(out of 25) (out of 25) (out of 10) (out of 40) (out of 100)
8.75 8 4 12 32.75

24. Mr. Samal also filed a document setting out the admission procedure for

M. Des Product Design (2013-14) which reveals that the document is for

internal use providing for details and which was provided by the respondent

in view of pendency of this matter. A copy of the application form filled online

is also produced before us which reveals that personal details are entered as

under :

“Personal Details
Application Number C134564A
Name of the Applicant Naman Varma
Date of Birth 12/25/1991
Gender Female
Birth Category General
Nationality Indian
Physical Disability “N”

(emphasis supplied).

In view of judgment in the case of Visveswaraiah Technological University and

Anr. (supra) Mr. Samal contended that the admission of the petitioner is liable

to be regularised and she should be awarded the degree.

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25. Mr. Naphade, learned counsel appearing on behalf of the respondent-

institute questioned maintainability of the petition. Mr. Naphade submitted

that CEED examination is conducted in two parts Part A and Part B. Only if the

candidate succeeds in Part A, would the results of Part B be declared. He

submitted that CEED is an examination which does not by itself ensure

admission to the M. Des course. If a candidate secures requisite marks in

CEED he or she is required to attend a further test and interview at IIT,

Mumbai. CEED is an all India examination which would enable the candidate

concerned to apply to various institutes for design programme course in the

country and is not an examination that would entail automatic admission in

the M. Des programme of IIT, Mumbai. He submitted that after a candidate

succeeds in CEED he/she is entitled to apply for IDC M. Des programme at

IIT, Mumbai. The IDC admission test invitation is sent to the top 100

candidates and the general category candidate is required to secure at least

59% marks, an OBC candidate is required to secure 53.10% and PD category

candidate is required to secure 39.33%. Only if candidates secure these

marks in respective categories are they entitled to be invited to attend the IDC

admission tests of the IIT Mumbai which includes written test and studio

interview. In the instant case it is submitted that the petitioner had secured

only 50% marks in Part A of CEED instead of the requisite 64%. She had not

applied under PD category but had applied under the general category.

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Although she was not entitled to declaration of Part B results, by an order of

this Court, Part B results were declared which revealed that the petitioner

has secured 35 marks. It is for Part B examination that the requisite marks

were 50% for general category candidate, 45% for OBC candidate and 25%

for PD category candidate. He submitted that these are the very marks which

were displayed on the scorecard of the CEED and in the instant case the

petitioner having secured 50% she had not obtained minimum requisite 64%

marks under the general category in Part A.

26. Mr. Naphade further submitted that although she was not eligible, by

virtue of the interim order of this Court which was passed without prejudice to

the rights and contentions of the parties, the petitioner’s result for Part B was

declared and she was invited to the admission tests of the IDC wherein she

secured only 35% marks whereas the requisite marks were 39.33%. He

submitted that this aspect of the matter had been misconstrued by the

petitioner, resulting in the petitioner alleging perjury by Mr. Joglekar Since

the Court had already passed interim orders without prejudice to the parties

rights and contentions, she was permitted to write admission test and appear for

studio interview. In the IDC test the petitioner had not qualified. Mr. Naphade

submitted that perjury notice may be discharged for the reasons set out in the

affidavit dated 11th August, 2016 which has been tendered today. We shall

deal with the aspect of this matter a little later.

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27. Reference was made to an affidavit of Mr. Joglekar dated 11th August,

2016 in support of his request for discharge of the perjury notice wherein the

entire process of selection and admission of the students in IDC has been set

out. Mr.Naphade pointed out that CEED office and IDC are separate entities

having their own rules. The CEED examination is conducted on behalf of the

Ministry of Human Resource Development for post graduate courses in design

programme. IDC is a department of IIT Mumbai that offers M. Des course at

IIT, Mumbai. CEED office is nationally conducted examination by GATE and

Joint Admission Test (JAM). It is conducted by CEED office on behalf of Ministry

of Human Resource Department. IDC department offers Master in PhD and

Design. As far as the petitioner is concerned, CEED does not accept change in

the category of birth-date from last date for CEED 2013 which was 5th

December, 2012. CEED Part A results were declared on 24th December, 2012

but not Part B since the petitioner did not qualify in Part A and obtaining

CEED scorecard does not guarantee a candidate a seat in IIT, Mumbai. CEED

results were not provided as the petitioner did not qualify for Part A and she

did not have scores of Part B. She submitted a certificate for learning

disability only after declaration of results. CEED office refused to accept

changes since the deadline had passed.

28. Pursuant to the interim order of this Court the CEED office arranged to

evaluate Part B which task was undertaken and she secured 35 marks in Part B.

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The petitioner did not qualify under the general category therefore she could

not apply under various design programmes. As far as the IDC M.Des

programme is concerned all persons who had a valid CEED score could

apply. The petitioner could not apply as she did not have a valid CEED score.

There were 61 seats in all categories. There were three applicants under the

PD category but none had applied for Product Design which the petitioner

desired. As far as other invitations to the admission under product design

programme of IIT were concerned, the marks required were 64% in general

category, 53.10% under OBC category and 39.3% in PD category as aforesaid.

The basic minimum required for other listing in the final selection for

product design programme were CEED 2013 25 marks, written test out of

25 marks, studio test out of 10 marks and interview out of 40 marks and the

minimum passing marks for Product Design programme was 75% for general

category, 67.5% for OBC and 50% for SC/ST/PD.

29. No PD candidates were called for the IDC admission test qualified under

PD category 2013. The petitioner also did not qualify to be called for the IDC

admission test. She secured CEED 2013 8.75 marks in the written test 8

marks, in the studio test 4 marks and interview 12 marks. The total marks

obtained by the petitioner were 32.75 which is much lower than the required

50 marks. In the circumstances, her performance at the admission test did not

qualify for IDC programme and it is therefore submitted that if despite

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standard of fairness that the institute has exhibited, the petitioner is admitted, it

would be major blow to the standards maintained by the institute.

30. Mr. Naphade submitted that as far as IIT was concerned, dyscalculia

was not one of the disabilities that has been contemplated inasmuch as the

communication from the head of department Exhibit-L dated 4th March,

2013 to the petition the IDC had expressed difficulty in considering the

petitioner’s case for learning disability and that she should request CEED to

consider her under PD category. He submitted that even otherwise the

certificate submitted by the petitioner was not in specified form under the Act.

31. Mr. Naphade further submitted that definition of disability contained

in Section 2(i) must be read with Section 2(r) which deal with “mental

retardation”. He further submitted that certificate required to be obtained

under the Act should be from a medical authority as defined under Section

2(p). Furthermore, the petitioner would be a person with disability as

defined under Section 2(i). For the ease of reference we reproduce below the

aforesaid definitions :

“2(i) “disability” means :-

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

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(vi) mental retardation;

(vii) mental illness;

Section 2
“(p) “medical authority” means any hospital or institution
specified for the purposes of this Act by notification by the
appropriate Government.”

Section 2

(r) “mental retardation” means a condition of arrested or
incomplete development of mind of a person which is
specially characterised by sub-normality of intelligence.”

Section 2
“(t) “person with disability” means a person suffering from
not less than forty percent of any disability as certified by
a medical authority.”

32. According to Mr. Naphade even assuming that the petitioner had

learning disability in the form of dyscalculia it would be covered under the

definition of “mental retardation” which as we have seen above is a condition

of arrested or incomplete development of mind of a person which is specially

characterised by sub-normality of intelligence. We are unable to agree with this

contention of Mr. Naphade.

33. The dictionary meaning of dyscalculia is difficulty in learning

comprehending arithmetic, such as “difficulty in understanding numbers,

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learning how to manipulate numbers, and learning facts in mathematics.” In

some cases it is known as mathematics learning disability. Thus, in order to

claim benefit of disability under the Act the person concerned would have to

qualify with 40% disability as certified by hospital or institute specified for

the purpose by notification by the appropriate Government. In the present

case we find that the L.T.M.G. Sion was an institute notified by the State

Government for the aforesaid purpose. Mr. Naphade submitted that Sion

hospital which has certified the petitioner’s condition is not the “proper

authority” as defined under the Act and therefore, ought not to be accepted as

correct. It is also contended that the Act by itself does not take into

consideration a concept of learning disability.

34. Mr. Naphade then relied upon the judgment in Dr. Raman Khanna

(supra) wherein the Delhi High Court had an occasion to consider the issue

pertaining to claim of disability and to extend statutory benefit to 1%

candidates suffering from locomotor disability. A reference was made by the

Delhi High Court to Section 33 of the Act. Section 33 provides for creation of

vacancies not less than 3% of persons and class of person with disability of

which 1% each would be reserved for blindness or low vision, hearing

impairment and locomotor disability. This of course makes reference to

“establishment” defined under Section 2(k) meaning a corporation established

by or under a Central, Provincial or State Act, or an authority or a body owned

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or controlled by the Government or a local authority or Government company

as defined in Section 617 of the Companies Act, 1956 and includes

Departments of a Government.

35. As far as the perjury notice is concerned, Mr. Naphade submitted that

a notice came to be issued as a result of apparent misunderstanding of the

contents of the affidavit of Mr. Joglekar He made reference to passing marks at

32.75 for M.Des programme as against 25 marks for qualification for part B.

He pointed out that 25 marks was indeed passing marks for PD category in

the Part B of CEED whereas the petitioner has qualified with 35 marks.

However, she had failed to secure marks in part A under the general category.

Belated category change, which was sought is not permissible. As far as the

IDC interview was concerned, subject to short listing set out above, the

candidate under PD category would be required to secure 39.33 marks

whereas the petitioner secured only 35 marks. Secondly, in the admission

test, the petitioner secured only 32.75 marks although required marks were

50 for the PD category, for OBC category mark required were in 59 marks and

for general category admission 75 marks were required. The petitioner was

not entitled to apply since she has not obtained necessary qualifying marks

in the IDC admission test.

36. Mr. Naphade has tendered a further affidavit of Shri Joglekar

dated 11th August, 2016 wherein he contends that he is not served with notice

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pursuant to order dated 9th July, 2016 directing issuance of notice. He came

to learn of the order from the administration of the respondent. He is no longer

employed with IIT, Bombay and waived service of notice and affirmed truth

and contents of earlier affidavits dated 2nd August, 2013 and 30th August,

2013. He has referred to and mentioned cut off marks in Part B CEED which

were fixed by the Industrial Design Center, a Department of IIT for the purpose

of admission and these cut off marks were different from the qualifying marks.

37. If the candidates did not achieve the minimum weightage marks for

a category, the seats are left vacant. He has described the entire process of

selection of IDC IIT Bombay. In the affidavit of Dr.R.Premkumar dated 5th

December, 2014, he has reiterated that he is acquainted himself for relevant

records and selecting CEED Organizing committee and admission committee

of IDC IIT Bombay before referring to affidavit. He has apologized if there was

any lapse on his part and stated that he has no reason to make a mis-

statement or false statement. In fact it appears that the deponent cannot be

faulted. The statement made by him in earlier affidavits are now being

correctly explained. The relevance of 25 marks being qualifying marks for

CEED refers to qualifying marks in part B and not part A. Thus, we have no

reason to sustain the perjury notice which in our view deserves to be dismissed.

38. On behalf of the Union of India Ms. Kajale submitted to the orders of the

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court.

39. Having heard counsel for the parties at length, we find that under the

scheme devised for the admission process to the programme M.Des an aspiring

student would be required to first appear for the CEED examination. As we have

seen the CEED test is carried out as a preliminary pre-qualification to enable the

student of design to apply to Universities offering the M.Des course. In doing so

the student is required to attempt two parts, Part-A and Part-B. An applicant in

the general category is required to obtain 64% marks in Part-A in the OBC and

SC/ST/PD category the Part-A qualifying marks are 57.6% and 32%. Only if the

student obtains these marks in Part-A will Part-B of the paper be evaluated. In

the present case the petitioner proceeded on the basis that she had obtained 50

marks in Part-A. This by itself would not entitle the petitioner to qualifying,

since the minimum marks required was 64% for the General category that she

had applied in.

40. We find the student did not apply under the PD category despite the

admission form making a provision for the same. She has subsequently, after

declaration of the Part-A results contended that she was entitled to be granted

the concession in the PD category and be treated as a PD category applicant, so

that she could avail of the concessional 32% qualifying marks. The PD option

was available in the on-line application form for CEED 2013 but the petitioner

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had clearly answered in the negative. It appears that at this stage she was

unaware that learned disability is also one of the disabilities which could entail

concessions. Nevertheless the contention of Mr. Samal that dyscalculia amounts

to a physical disability cannot be accepted. Dyscalculia is a disability that

affects the mental process. Thus answer in the CEED application form to the

question whether the petitioner does not suffer from physical disability appears

to be correct. However, in the application form for admission to the M.Des

programme the petitioner selected the PD option attaching an Opinion

Certificate given by the Learning Disability Clinic, Sion Hospital which

mentioned that the petitioner suffered only from dyscalculia which is a learning

disability. Physical and neurological assessment is certified to be normal.

Vision and hearing were also normal. The fresh certificate obtained from the

Learning Disability Clinic at KEM hospital also mentions dyscalculia as part of

the Education Assessment. The Physical and Neurological assessments are both

seen to be normal. In this view of the matter, we do not see how petitioner could

take advantage of the ‘physical disability’ option.

41. In facts of the present case,the petitioner appears to have approached the

IIT vide letter dated 27th December, 2012 under the misconception that she

had applied for IDC entrance test where in fact the form she had filled was

for CEED form and not IDC form. IDC form was only submitted much later on

18th January, 2013 when the institute was making endeavor to consider the

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petitioner’s case but which could not be considered due to obvious reasons.

Even subsequent communication dated 24th January, 2013 (wrongly mentioned

as 2012) while filling online CEED form the petitioner’s mother had

contended that she had applied under general category instead of PD category.

In fact the online application was made for CEED examination and not for

IDC.

42. The petitioner has succeeded in various examinations but initially had not

qualified in the admission process. Disqualification on the basis of the CEED

score cannot be faulted. The petitioner did not claim concessions under the PD

category before the test but she claimed the benefit of learning disability after

the CEED result was declared. Thereafter she applied under the PD category for

the entrance examination to M.Des. This by itself would not in our view be of

any assistance to the petitioner. The Part B result were not liable to be declared

in the first place, however they were declared pursuant to order of this Court.

Even assuming that part-B result could have been declared on the basis that

petitioner had qualified in CEED part-A in the PD category, declaration of the

Part-B result would only entail eligibility to apply for the M.Des programme of

IDC, IIT Mumbai. Even without this Court specifically passing orders, the IIT

Mumbai proceeded to conduct further pre-admission tests required to be

cleared to be eligible to be offered a seat in the IDC which the petitioner failed to

clear.

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43. To suggest that the petitioner suffered from mental retardation so as to

fit into the category of physical disability would be an extreme unfair and

inappropriate conclusion, since in our view mental retardation clearly

indicates of incomplete development of mind which is necessary sub-

normality of intelligence. In our view sub-normality of intelligence is a

requisite ingredient of mental retardation as defined under the Act.

Applying the test to the present petitioner would undoubtedly not be justified

since the petitioner has admittedly not demonstrated sub-normality of

intelligence, otherwise she would not have appeared and cleared various

examinations for the past four years. Furthermore, she has been certified as

suffering from dyscalculia which is learning disability and which has not been

taken into consideration in the Act of 1995. On the other hand if one

examines the definition of “mental illness” under section 2(q) it refers to

mental disorder other than “mental retardation”. This would have been more

appropriate conclusion that could be drawn in the facts of the present case

since at the best dyscalculia may be considered as disorder which large number

of persons are admittedly suffering from.

44. The Act does not define learning disability. At the same time what is

contemplated by CEED was only physical disability and not learning disability.

It is for this reason that HOD IDC had suggested that the petitioner should

approach CEED to consider learning disability under PD category. CEED is

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no doubt a programme conducted at the all India level. A reference to the

web page of CEED describes CEED programme as one where CEED qualified

students are required to secure M. Des and PhD courses in various institutes

and this scorecard is normally valid for a particular period of time. Various

institutes participate in CEED which includes IITs and other private

institutions. Although we are not in a position to ascertain whether web page

of CEED contains same description in the year 2012-13, we have no hesitation

in accepting the contention of the IIT that since CEED does not by itself

ensure a candidate of a seat in the M. Des programme of IIT, Mumbai,

obviously it entitles a student to apply in any of the institute listed which

would recognise a CEED certificate.

45. In our view to make special provision for the integration of persons with

disabilities into the social mainstream would be one of the heads under which

an educational institute could provide for learning disability. Furthermore, as

part of strategy for comprehensive development of programmes and services

and equalization of opportunities for persons with disabilities also would be a

relevant head under which an educational institution makes special

provisions for persons with learning disability. The material aspect of the CEED

examination application is categorization as General, Other Backward Classes

and the SC/ST/PD category. The first of these two categories, namely, general,

OBC/SC/ST are not categories which are contemplated under the Act. As far as

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the Act is concerned, the Petitioner may be a person with disability but CEED

and IDC have proceeded on the basis that only physical disability could be

considered but that too if it is declared at the stage of application. In the course

of submissions of counsel, we called upon Mr. Samal to provide with a copy

of online application filled by the petitioner which he fairly submitted that

was not available with the petitioner since it was not properly “saved”.

However, on behalf of IIT, Mumbai we have since been provided with a copy

of online application form which is seen to be downloaded on 12th

September, 2014. The application form is for CEED 2013. The personal details

contained in column of physical disability in which the petitioner is seen to

have entered alphabet “N” presumably stating “No”.

46. This indicates that at the time when online form was filled the petitioner

was aware that physical disability category is available and learning disability

was not specifically mentioned. It is not as if the petitioner was unaware of the

learning disability since she already availed of concessional facility since 2006

on account of her learning disability. The question is whether at the time

when the application for CEED 2013 was filled in the petitioner made any

attempt to claim benefit of concessional qualification contemplated under the

PD category. This is one aspect which will be crucial to determine whether

it was a bonafide claim. It is evident that when online form was filled the

petitioner did not claim benefit of learning disability. Besides this it appears

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that the petitioner has herself not filled up online form. Since the entry

made against query “Have you done the transaction ?” is answered with a letter

“N” meaning “No”. Thus, the person who filled the application form on

behalf of the petitioner also was clear about the fact that PD category was

probably not applicable. CEED 2013 was held on 25th November, 2012 and

the petitioner for first time claimed the benefit of lower qualifying marks on

27th December, 2012 i.e. after the marks for part A were published. There

appears to be confusion in the petitioner’s understanding of two different

stages for securing admission in the M. Des programme conducted by the

respondent. This confusion appears to be fueled by the fact that both CEED

2013 as well as M. Des courses are conducted by the IIT. CEED is a qualifying

examination which entitled the qualifying student to apply to various course

with IIT and other institutions offering the design programmes and the M. Des

programme is conducted by IIT which requires special qualification and

which the petitioner has not qualified for, in accordance with the standards

set by the respondent.

47. Apropos the decision of the Delhi High Court in Dr. Khanna (Supra), in

our view the petitioner cannot claim benefit of Section 33 which falls under

Chapter VI specifically deals with “Employment”. The petitioner’s case would

fall under Chapter V dealing with “Education” which requires appropriate

Governments and local authorities to support free education, vocational

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training and which requires Government to prepare CEED for conducting

part time classes with children with disabilities providing functional literacy,

imparting non-formal education and generally eduction through open

schools providing devices teaching aids etc. Chapter V which consists of

Section 26 to 31 promotes Government participation in ensuring assistance

for students with disabilities although no specific reference is to be found

in Chapter V to learning disability. The emphasis seems to be on providing

separate systems for such children upto age of 18 by providing them in

applicable cases with free eduction and promote integration to the students in

normal schools equipping special schools for children with disabilities, part

time classes for those who could not continue education beyond standard V.

No provision of the Act appears to consider specific situation that the

petitioner faces today. The statement and objects of the Act sets out that India

is a signatory of the said proclamation and it is necessary to enact a suitable

legislation to provide for the following :-

“(i) to spell out the responsibility of the State towards the prevention of

disabilities, protection of rights, provision of medical care, education,

training employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the

sharing of development benefits, vis-a-vis, non- disabled persons;

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(iv) to counteract any situation of the abuse and the exploitation of

persons with disabilities;

(v) to lay down a strategies for comprehensive development of

programme and services and equalization of opportunities for persons

with disabilities; and

(vi) to make special provision for the integration of persons with

disabilities into the social mainstream.

48. The petitioner has otherwise been found to have completed the course

and has stated that only the degree has to be awarded which the IDC is

unwilling to do in view of the fact that the petitioner had not qualified in Part-A

in the General category, whereas even in the IDC entrance tests the petitioner

had failed to qualify since she has failed to secure the requisite marks in the

written test, studio test and interview. The question which therefore needs to

be considered can be said to be in two parts. Firstly where dyscalculia can be

taken to be a physical disability ? In our view the answer to this is in the

negative. Consequently and even assuming dyscalculia can be taken to be a

physical disability it is certainly is related to the mental faculties and as such

widely recognised as a learning disability. Then in such event whether benefit

can be extended to the petitioner by regularising the admission and awarding

her the degree because she has passed all examinations held during the year

2013, 2014 and 2015 to grant her that relief would amount to exercising

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powers under Article 142. In other words, whether the petitioner would be

entitled to take advantage of the fact that she had subsequently cleared all

examinations for the years. 2013, 2014 and 2015 and whether this court can

within its extraordinary jurisdiction under Article 226 pass an order directing

the IIT to award the degree to do complete justice.

49. During the course of the hearing, we asked Mr. Naphade, learned

Counsel for the respondents that what would be the correct understanding of

the word “PD” in forms issued by the respondents institute. Mr. Naphade, very

fairly stated that PD would mean persons with disability and not restricted itself

only to persons with physical disability. Therefore, even if we accept that the

petitioner was entitled to be considered in the PD category i.e. persons with

disability category, yet the facts remains that even in that category, the petitioner

has not passed the IDC test. The conduct and results of the IDC test have not

been disputed by the petitioner. In these circumstances, it was as much

necessary for the petitioner as well as the respondents to bring the aforesaid

results of the IDC test to the specific attention of the Court when interim orders

were passed without prejudice to the rights and contentions of the respective

parties. This would ensure that the petitioner is not put to a disadvantage of

having to continue her education at the IIT Institute even though finally it may

be found that she could not have been admitted for the Course.

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50. In the above view, we have to necessarily hold that the petitioner has not

qualified to be admitted for M.Des programme of the respondent Institute under

the category of PD i.e. persons with disability. However, the facts remains that

the petitioner has successfully completed the course and the interest of justice

would possibly demand that the petitioner be awarded the degree so as to do

justice between the parties.

51. However, we find that the issue which arises for our consideration is

whether the benefit can be extended to the petitioner by regularizing her

admission and awarding her a degree because she has passed all examinations

held during the years 2013, 2014 and 2015. For that purpose whether while

exercising powers under Article 226 of the Constitution can we exercise powers

which are available to the Apex Court under Article 142 of the Constitution of

India and direct the IIT to award the degree to the petitioner so to do complete

justice between the parties.

52. In the judgment of Visveswaraiah Technological University (supra) the

Supreme Court duly empowered under Article 142 of the Constitution observed

that the admission of the students concerned was on the basis of interim orders

of the Court and therefore had ought not to be disturbed, but regularised. In the

instant case also the petitioner had proceeded to had been assessed on the basis

of the orders of this Court passed from time to time, but regularising the

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admission was within the discretion of the Supreme Court. Article 142 of the

Constitution empowers the Supreme Court to pass such orders as are necessary

for doing complete justice in any cause or matter pending before it and any

decrees so passed or orders so made shall be enforced throughout the territory

of India. This provision is effectively meant to do complete justice between

parties by supplementing the legal framework and not supplanting it.

53. In B. C. Chaturvedi vs. Union of India (1995) 6 SCC 749 the

Supreme Court held that the High Court being the Court of preliminary

jurisdiction has inherent powers to do complete justice between the parties

similar to the Supreme Court powers under Article 142. In that case even the

punishment imposed by the disciplinary authority in departmental enquiry was

disproportionately excessive so as to shock the judicial conscience. The High

Court, it held, can modify punishment by moulding the relief. The Court

observed the fact that there is provision similar to Article 142 in relation to

the High Court’s powers can be no ground to think that the High Court cannot

do complete justice in the facts of B. C. Chaturvedi. (supra). Absence of

provision like Article 142 is not material as High Court too can exercise such

power being a Court of plenary jurisdiction, but this power is not as wide as that

which the Supreme Court has under Article 142.

54. In Sanchalakshri vs. VijayaKumar Raghuvirprasad Mehta and

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Anr. (1998) 8 SCC 245 a three Bench Judge of the Supreme Court held that

only the Supreme Court has power under Article 142 to pass such decree or

such order as is necessary for doing complete justice held in the absence of

analogous provisions, the High Court and Tribunal do not have similar powers.

In contradistinction in Sanchalakshri( supra), the three Judge Bench of the

Supreme Court while considering B.C Chaturvedi (supra) observed that

observation made by Hansaria, J in B. C. Chaturvedi had no relevance in the

case of Sanchalakshri, since Sanchalakshri was not concerned with the case

where the High Court or Tribunal found difficulty in granting appropriate relief

because of some technicalities of rules or procedures even though justice

demanded it. Moreover it was observed that the views expressed by Hansaria, J.

were expression of a personal view and that Hansaria, J. had agreed with what

the other two learned judges held as regards the powers of the High Court to

interfere with the order of penalty and therefore it would not be correct to say

that the Supreme Court in B.C. Chaturvedi (supra) has accepted the view that

the High Courts possess the same power which the Supreme Court has under

Article 142 of the Constitution for doing complete justice even in the absence of

such specific provision.

55. In view of the above, we are of the opinion that the decision in

Visveswaraiah Technological University (supra) whereby the Supreme Court

decided that it was appropriate not to disturb the status quo they obtained

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would be of no assistance to the present petitioner. In the facts of the present

case and given the decision of the Supreme Court in Sanchalakshri (supra) this

Court lacks the power to pass an Order today directing the Respondent no. 1 IIT

to treat the petitioner as admitted and to issue appropriate degree and thereby

do complete justice between the parties.

56. After this matter was reserved for orders and in view of the view we have

taken as regards powers of the High Court to do complete justice in the matter

of this nature, we invited further submissions of counsel on both sides

considering the view taken by the Supreme Court in Sanchalakshri (supra).

Accordingly, we heard parties and their Advocates on 18th November, 2017

and 22nd February, 2018. Mr.Samal, learned counsel appearing on behalf of

the petitioner submitted a compilation of documents pertaining to factual

aspects of CEED Information Brochure, 2013, IDC Admission brochure of 2017,

relevant extract of IIT Act, 1961. He sought to contend that CEED and IIT had a

common Chairman. He submitted that all enquiries about CEED were required

to be made at the GATE office which was under the control of the Chairman,

GATE, who was also Chairman of IIT Bombay. He relied upon clause 1.9 of the

CEED Information Brochure 2013 and submitted that the admission brochure of

IDC IIT Bombay also indicated that IDC was administered by IIT and since the

institution was involved in both CEED evaluation and IDC admission were the

same having a common Chairman all deficiencies would have been rectified by

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the IIT itself.

57. As far as legal position is concerned, Mr.Samal placed reliance upon

some additional judgments in the case of (i) Writ Petition (Civil) 292 of 2006

Disabled Rights Group and Anr. Vs. Union of India Ors. in which the Supreme

Court considered the issue pertaining to persons with disabilities and

reservation of seats in Educational institutions. (ii) He also relied upon the

decision in the case of Secretary, ONGC Ltd. and Anr. Vs. V.U. Warrier (2005) 5

SCC 245. He relied upon the observations in paragraph 27 and the quote

from the case of Sangram Singh Vs. Election Tribunal, Kotah AIR 1955 SC 425

which observed that the High Courts’ powers are purely discretionary and no

limits can be placed upon that discretion but it must be exercised along

recognised lines and not arbitrarily. One of the limitations imposed by the

Courts on themselves is that they will not exercise jurisdiction in this class of

case unless substantial injustice has ensued, or is likely to ensue. Mr.Samal

submitted that the principle embodied in the judgment of Sangram Singh

(Supra) had been quoted with approval in various decisions including that of

ONGC Ltd. (supra) and submitted that the powers of this Court to do

substantial justice is apparent and should be exercised.

58. On the other hand Mr. Naphade submitted that in several cases this

Court has observed that the power under Section 142 could not have been

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exercised by the High Courts, particular reference was made to the case of

Mohan Das Issardas Vs. A. N. Sattanathan Anr. (1955) ILR Bombay 318

wherein he relied upon the observations of the Supreme Court that exhibit

the same respect for obiter dicta of the Supreme Court that we did for those of

the Privy Council and it is as much necessary in the interests of judicial

uniformity and judicial discipline that all the High Courts must accept as

binding the obiter dicta of the Supreme Court in the same spirit as the High

Courts accepted the obiter dicta of the Privy Council.

59. Mr. Naphade thereafter placed reliance on the decision of the Supreme

Court in the case of Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415 in which

power of the High Courts to do complete justice to the parties came to be

considered in the context of a matrimonial dispute. The Supreme Court

observed that the High Courts will not have powers similar to those exercised

by the Supreme Court under Article 142 of the Constitution and the Civil Court

and the High Courts cannot pass orders permitting divorce by consent under

Section 13-B of the Hindu Marriage Act, 1955 without waiting for expiry of the

statutory period of six months. In effect it is only the Supreme Court which can

exercise extraordinary powers under Article 142 and can do complete justice

to the parties.

60. In our view there can be no uncertainty over the powers of the High

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Courts while exercising the writ jurisdiction. The High Courts do not have

powers to pass an order to do complete justice to the parties similar to those the

Supreme Court would pass under Article 142. The Division Bench of this Court

made similar observations in the Family Court Appeal No.91 of 2016 by the

order dated 15th March, 2017 in the context of Section 13-B of the Hindu

Marriage Act. Paragraph 12 of the order reads as follows :

“12. Though we are completely satisfied that the marriage between the

parties is irretrievably broken down, we are unable to help the Appellant

in this case. The only ray of hope for him is to approach the Apex Court

and seek the decree of divorce on that ground.”

61, In the instant case, we find that the respondent challenged the interim

order dated 7th May, 2014. The Supreme Court while disposing of the SLP

requested the High Court to decide the main petition as early as possible and

preferably before 30th December, 2014 failing which the High Court was to

decide Civil Application No.4202 of 2013 filed for vacating the interim relief.

However, the applicant made no efforts to have civil application heard and the

civil application remained pending. In the meantime respondent no.1 has

continued further tests as contemplated by IDC and also permitted the petitioner

to attend classes and complete the entire course. The respondent has expressed

its inability to award the degree to the petitioner.

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62. One more argument pressed into service by Mr. Naphade is that in any

case disability certificate was not in proper form as contemplated under the

Act. We are not impressed by this submission since it was never the case of

the respondent that the benefit of PD category could not be granted to the

petitioner on account of the disability certificate not being in particular form.

We are of the view that although the petitioner may be entitled to be declared

successful in the course we are unable to grant her any further relief in this

petition for want of necessary powers under Article 226 to declare the

petitioner as having passed M.Des program held by IDC. In the circumstances

we pass the following order :

(i) Petition disposed of in above terms.

(ii) Perjury notice issued to Shri Chintamani Prabhakar Joglekar dated 29th July,

2016 is discharged.

(iii) In view of disposal of the petition, Civil Application No.2402 of 2013 is

also disposed of. No order as to costs.

( A. K. MENON, J.) (M. S. SANKLECHA,J.)

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