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Charu Singh v. Sudeep Poddar And Others - SPECIAL APPEAL No. 978 of 2001  RD-AH 46 (26 September 2001)
SPECIAL APPEAL NO.978 OF 2001
Charu Singh v. Sudeep Poddar & others
SPECIAL APPEAL NO.1002 OF 2001
Km.Charu Viz and others v. Sudeep Poddar & others
SPECIAL APPEAL NO.1003 OF 2001
Km.Meetu Banerji v. Sudeep Poddar & others
SPECIAL APPEAL NO.1004 OF 2001
Km.Sonali Agrawal v. Sudeep Poddar & others
SPECIAL APPEAL NO.1006 OF 2001
Km. Ruchi Agrawal & othersv. Sudeep Poddar & others
SPECIAL APPEAL NO.1007 OF 2001
Km.Neha Rastogi and another v. Sudeep Poddar & others
SPECIAL APPEAL NO.1008 OF 2001
Yuvika v. Sudeep Poddar and others
SPECIAL APPEAL NO.1009 OF 2001
Ms Asmita Deemesh v. Sudeep Poddar & others
SPECIAL APPEAL NO.1012 OF 2001
Km.Vartika Singh v. Sudeep Poddar & others
SPECIAL APPEAL NO.1025 OF 2001
Swati Singh v. Suddep Poddar & others
SPECIAL APPEAL NO.1026 OF 2001
Km.Sakshi Arora & another v. Sudeep Poddar & others
SPECIAL APPEAL NO.1027 OF 2001
Pragya Singh v. Sudeep Poddar & others
SPECIAL APPEAL NO.1028 OF 2001
Palak Mehta v. Sudeep Poddar & others
SPECIAL APPEAL NO.1029 OF 2001
Rachna Agrawal v. Sudeep Poddar & others
SPECIAL APPEAL NO.1030 OF 2001
Nidhi Tirpathi v. Sudeep Poddar & others
SPECIAL APPEAL NO.1031 OF 2001
Jai Lakshmi v. Sudeep Poddar & others
SPECIAL APPEAL NO.1032 OF 2001
Pooja Gupta v. Sudeep Poddar & others
SPECIAL APPEAL NO.1033 OF 2001
Namrata Gupta and another v. Sudeep Poddar & others
SPECIAL APPEAL NO.1035 OF 2001
Km.Sonali Prajapati v. Sudeep Poddar & others
SPECIAL APPEAL NO.1037 OF 2001
Km. Amita Singh v. Sudeep Poddar & others
SPECIAL APPEAL NO.1040 OF 2001
Anshu Malika Singh & others v. Sudeep Poddar & others
SPECIAL APPEAL NO.1041 OF 2001
Neeru Khanna v. Sudeep Poddar & others
SPECIAL APPEAL NO.1042 OF 2001
Km.Itisha Jain v. Sudeep Poddar & others
Hon'ble S.K.Sen, C.J.
Hon'ble R.K.Agrawal, J.
[Dictated in open Court by Hon.S.K.Sen, C.J.]
This special appeal is directed against the judgement and order dated 28.8.2001 passed by the learned Single Judge, whereby, the learned Single Judge allowed the Writ Petition No.23863 of 2001 filed by respondents-writ petitioners No.1 and 2, Sudeep Poddar and Ravi Agrawal, and quashed the Notification dated 26.8.1989.
The respondents no.1 and 2 herein appeared in Combined Entrance Examination known as U.P.State Engineering Admission Test-2001 [hereinafter referred to as the UPSEAT-2001]. . The respondent no.1 was placed at serial no.132 and the respondent no.2 was placed at serial no.154 in the combined merit list of general category candidates. After declaration of the result, the respondent no.4 hold counselling with a view to assign students to a particular College/Branch [ discipline] of engineering and the institution according to the merit keeping in view the quota reserved for various categories of the students as explained in the brochure for UPSEAT-2001.These categories of students for the purpose of admission however, do not include the girls students, although in certain institutions subjectwise quota has been kept apart for the girls students. By virtue of the Government Order dated 16th June, 2000, which was issued pursuant to the Notification dated 26.8.1989 a procedure of counselling was introduced, whereby, the girl students whose names appeared in the merit list and the first waiting list, on the basis of seats allotted to them in different institutions were proposed to be called first for counselling and thereafter the male students of merit list were to be called for counselling. The learned Single Judge has found that the said procedure has really created reservation and not preference for the girl students and thereby meritorious male students have been excluded. The learned Single Judge has also found that the Government Order on the basis of the Notification as well as Notification itself has created discrimination in between the male students and the girl students and the male students who have got better position shall be deprived from getting subjects and institutions of their choice by virtue of the proposed counselling of the girl students pursuant to the Government Order and the Notification which amounts to serious discrimination. The learned Single Judge on that basis quashed the Government Notification dated 26.8.89 as well as the Government Order dated 16.6.2000.
The appellant Ms. Charu Singh who appeared in person before us, has advanced substantial arguments and contended that infact, the Notification and the Government Order mentioned above do not create any reservation in favour of the girl students, but the same amounts to preference in respect of certain educational institutions and branches/discipline of engineering. She further submitted that only those girl students, who came in the merit list and the first waiting list are eligible to be considered for being given admission in the various Engineering Educational Institutions.The seats have been allotted in separate categories for the girl students, which do not amount to rimination, since the same does not really come within the purview of reservation. She has strenuously argued that because of this preference, no boys are deprived and all the boys of merit list get an opportunity in attending the counselling and selecting from the available branch/discipline of engineering and the college. She further submitted that such preference is permissible under law and is saved under Article 15(3) of the Constitution of India.
Mr. Ashok Mehta, learned Chief Standing Counsel and Sri C.S. Singh, learned standing counsel have supported the submission made by Ms.Charu Singh before us and submitted that it is permissible to keep the seats in separate categories for the girl students since the State Government is authorised to make special provision for the girl students under Article 15 of the Constitution of India.The learned Chief Standing Counsel has submitted before us that the Government Notification should not have been quashed in view of the fact that no challenge has been made to the same, although he has no objection if the present procedure of counselling as adopted by the Committee of Admission is confined for this year only. Sri Ramesh Upadhyay, learned counsel for respondent no.4 has submitted that respondent no.4 has taken steps to implement the order passed by the learned Single Judge and the arrangement for counselling was made on the basis of the order passed by the learned Single Judge. Sri Sudeep Poddar-writ petitioner-respondent no.1, who appeared in person, has argued that the procedure prescribed under the Government Notification as also under the aforesaid Government Order amounts to reservation and not preference for the girl students as the meritorious male students shall be excluded in view of the procedure prescribed for counselling.
The respondents/writ petitioner nos.1 and 2 prayed for the grant of following reliefs in their writ petition:
i) A writ , order or direction in the nature of writ of mandamus restraining the respondents from holding counselling with effect from 16th July, 2001,
ii) A writ, order or direction in the nature of writ of mandamus restraining the respondents from granting any preference or reservation to the girl students in the matter of assignment of either institution or subject/branch or discipline,
iii) Any other writ ,order or direction as may be deemed fit and proper in the circumstances of the case,
iv) award costs of the writ petition to the petitioners.
In the counter affidavit filed by Amrik Singh, Deputy Co-ordinator and O.S.D. legal cell UPSEAT 2001 on behalf of respondent no.2 in the writ petition, a copy of the Gazette Notification dated 26.8.89 which provided for giving preference to the girl students, was filed as Annexure-C.A-3, the writ petitioners filed an amendment application on 27.7.2001 being Civil Misc. (Amendment) Application No.67464 of 2001 seeking permission to amend the writ petition. However, even in the amendment application the writ petitioners did not seek for quashing of the aforementioned Notification dated 26.8.1989 as also the Government Order dated 16.6.2000. Thus in fact there was no prayer for quashing of the Government Notification dated 26.8.1989 as also the Government Order dated 16.6.2000. The respondents-writ petitioners had only made a prayer for restraining respondent no.4 for holding counselling , which was scheduled to take place with effect from 16th July, 2001 and from granting any preference to the girl students in admission matter in Engineering Colleges. Since no prayer for quashing of the Government Notification dated 26.8.1989 or Government Order 16.6.2000 was made by the respondents-writ petitioners, the learned Single Judge, in our view, has exceeded his jurisdiction in quashing the Government Notification dated 26.8.1989 and the Government Order dated 16.6.2000.Therefore, the order passed by the learned single Judge quashing the government Notification dated 26.8.1989 and also holding that the Government Order dated 16.6.2000 does not survive, is set aside.
It mat be noted that from time to time several special appeals have been filed and on the applications filed by the appellant praying for interim relief this Court had passed interim orders which may be classified into two categories:
i) In respect of first category orders have been passed to the effect, inter alia, that one seat shall be kept vacant in the subject(s) in respect of which option has been exercised by the appellant(s). It was further directed, inter alia, that in the event the appeal fails but on the basis of the placement of the appellant in the waiting list, if the appellant(s) in their turn get(s) the chance to be included in the Select List, the said seat shall be filled up by her/them.
In respect of other categories interim order was passed to the effect, inter alia, that seat(s) shall be kept vacant in the subject in which choice or option has been given by the appellant(s) subject to the availability of the seat. It was further directed , inter alia, that in the event the appeal fails, but on the basis of the placement of the appellants in the waiting list, if they in their turn get the chance to be included in the select list, the said seat shall be filled up by them.
It is stated before us by Mr.Ramesh Upadhyay, learned counsel for respondent no.4 that the Admission Committee has already implemented the order passed by the learned Single Judge and the process of counselling has also been started.
Considering the submissions made by the parties, we are of the view that it would not be appropriate in the interest of justice to set aside the admissions made on the basis of the counselling pursuant to the judgment and order of the learned Single Judge. However, the ends of justice would be best served by the following final order to which all the parties appearing before us have no objection.
The counselling which has already been started on the basis of the order passed by the learned Single Judge and on the basis of the interim order passed from time to time by this Court is not being disturbed as the same may affect the career of large number of students. We also note that respondents no.1 and 2 have stated before us today that their counselling for the subjects for which they have exercised their option have already been concluded and they have been admitted in the subjects and in the Institutions of their choice. We further provide that all the appellants shall be given admission on those seats, which have been directed to be kept vacant pursuant to the interim orders passed in the special appeal. In respect of seats which have been directed to be kept vacant in respect of some of the appellants subject to availability, we direct that if any seat in the branch/discipline of engineering in the institution as provided for in the interim order is not available at present, but subsequently falls vacant under the general category seats or in any other quota or becomes vacant on account of drop out candidates or becomes available due to non filling of seats under NRI quota then those seats be given to them.
It is made clear that we are not adjudicating on the merits of the Government Notification dated 26.8.1989 and the Government Order dated 16.6.2000 at this stage.
With the aforesaid directions, all the special appeals are disposed of. However, the parties shall bear their own costs.
Dt. September 26,2001
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