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Judgment
Gita Mittal, J.—This writ petition has been filed by the petitioner impugning a decision dated 29th September, 2004 whereby the admission of the petitioner to the course for the three year Diploma in Art for Drawing Teacher was cancelled.
There is no dispute to the factual matrix. It is submitted that the petitioner after passing her class 12th examination, the petitioner sought admission to undertake the three year diploma course run by the Department of Training and Technical Education of the Government of NCT of Delhi (respondent No. 2 herein) in the Art for Drawing Teacher. The Information of Bulletin has been placed before this Court and the material term setting out the condition of eligibility reads as under:
Qualification:
Pass in Xth class of 10+2 or Matric or any other exam equivalent to Xth class exam conducted by the CBSE with minimum 45% marks in the aggregate.
The respondents had provided reservation for different categories including SC/ST/OBC and Physically Handicap category. The petitioner has set up entitlement under the Physically Handicapped quota.
As per this Bulletin of Information, the respondents had prescribed a common entrance test for admission to the full time diploma course programmes which was stated to be conducted by the Guru Gobind Indraprastha University.
It is stated that the petitioner appeared in the entrance examination as a general category but could not qualify the same. The petitioner has submitted that she was a physically handicapped person inasmuch as her palatal movement was not adequate causing articulation defect in speech and Rhinu zial jista type picture and the closure of nciopharyix is not proper. The petitioner learnt of vacancies existing in the quota for the handicapped and made a representation to the Minister of Education, Training & Technical Education, Social Welfare and Welfare of SCs/STs of the Government of NCT of Delhi who gave a recommendation dated 28th August, 2003 in favour of the petitioner and addressed a letter of this date to the Principal of the respondent No. 3 namely the Sarada Ukil School of Art. This letter reads as under:
I am writing this letter regarding admission of Ms. Cheena Nanda in Three year (Full-Time) Diploma in Art for Drawing Teacher under Physically handicapped quota.
I shall be grateful if you could kindly look into the matter favourably and admit her in yoru institution. Ms. Cheena Nanda will met you as per your convenience and submit all other necessary details.
Pursuant thereto, the petitioner was admitted in the respondent No. 3 school and she deposited the fees on 29th August, 2003. An identity card was also issued to the petitioner. The petitioner has thereafter perused the regular course.
It appears that as per the procedure for admissions, approval for the petitioner''s admission was required from the Department of Training and Technical Education of the respondent No. 1. Additionally, as per Clause 7.4 of the Information Bulletin for admissions, the petitioner was required to submit a certificate of suitability from the Vocational Rehabilitation Center for Physically Handicapped in the format prescribed at annexure IV.
In these circumstances, the Principal of the respondent No. 3 addressed a letter dated 30th April, 2004 to the said department, the material terms whereof reads as under:
The student ordered to be admitted by the Hon''ble Minister is a physically handicapped girl and deserved all help from society for her rehabilitation.
The Hon''ble Minister ordered her to be admitted against a vacant seat reserved for physically handicapped category.
The Hon''ble Minister when informed that DTE alone was competent to make the intended admission, told the institution that he had already conveyed the DTE for necessary approval.
Unfortunately facts in para 3 above were not brought in writing when the institution complied with orders of the Hon''ble Minister.
Minor technical lapse cited in para 4 is regretted. However ex-post facto approval may kindly be now granted and the poor girl saved from harm due to mere technicalities.
Since, BTE examinations are just a few days away expeditious approval of DTE will save the P.H. Girl from suffering uncertainty about the examination for not fault of her.
In response thereto, the Department of Training and Technical Education vide a letter dated 20th May, 2004 conveyed the approval of the competent authority to permit the petitioner to appear in the VTE Examination. It was however directed that she be required to submit the disability certificate issued by the competent authority of the Vocational Rehabilitation Centre for Physically Handicapped giving particulars of her physical disability and her fitness for undergoing the Diploma course in Art for Drawing Teachers to this Department.
The first year examination for the course was held in May, 2004 which the petitioner undertook and thereafter also deposited the fees for the second year of the course on the 29th July, 2004. The petitioner was also issued an identity card for the second year.
While she was undergoing the second year course, sometime in the first week of September, though the result of other students was declared, the petitioner''s result was not declared. She approached the Principal of the respondent No. 3 in this behalf. With the uncertainty being faced by the handicap of the petitioner, the Principal of the respondent No. 3 addressed yet another communication dated 10th September, 2004 to the Department of Training and Technical Education now making the following request:
Since her result for BTE examination has been withheld and the helpless girl is suffering uncertainly for no fault of her, if approved she may be taken as a general candidate vacancies for which vacancies still exists in this institution.
This submission on behalf of the petitioner by the Principal of respondent No. 3 was however rejected by the respondent No. 1 vide a letter dated 29th September, 2004 in the following terms:
With reference to your letter No. SUSA/Admn./2004-05/258 dated 10.09.2004 on the above cited subject. In this connection I am directed to convey the decision of the competent authority regarding regularization of admission to Art for Drawing Teacher in respect of Ms. Cheena Nanda of your Institute. The case was examining and rejected by the competent authority.
It is, therefore, advised to cancel her admission with immediate effect and submit action taken report to Dy. Director (Technical) under intimation to this office.
You are further advise not to admit any candidate without the prior approval of this Directorate. The Institute itself shall be responsible for any consequence issue out of such irregular admission.
This order of rejection has been challenged by way of the present writ petition by the petitioner on the ground that on account of the physical handicap with regard to her palate, the petitioner suffered from articulation defect which has resulted in mental disability to her. Despite surgery by the ENT Department of the Safdarjang Hospital and despite undergoing treatment in the psychology department of the same hospital, the petitioner has a residual speech defect with impaired palate movement and speech articulation defects. In these circumstance, it has been submitted that the petitioner was actually physically handicapped and entitled to admission under the physically handicapped quota.
Mr. R.K. Saini, learned Counsel for the petitioner has further contended that the respondents cannot be permitted to give a restricted meaning to the expression "physically handicapped" as has been done in Clause 7.4 of the Information Bulletin and that the respondents have to include all disabilities as have been mentioned u/s 2(i) and 2(r) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
It has also been contended on behalf of the petitioner that the petitioner was granted admission as handicapped person as back as on 29th August, 2004 and she had successfully completed the first year of the course and was into the second year of the course as well. Learned Counsel has pointed out that in view of the orders passed by this Court, the petitioner has also participated in the second year of the course and has also undertaken the practical examinations.
Placing reliance on the judgments reported at 1950(2) AIEC 205 entitled Harphool Singh Vs. State of Rajasthan and Others, entitled Inder Parkash Vs. Deputy Commissioner and Others, entitled Inder Prakash v. Deputy Commissioner, Delhi, it is contended that the petitioner having undertaken the course and also the examinations, the educational institution cannot be permitted to cancel the petitioners initial admission on the basis of any disqualification on principles of equitable estoppel.
In support of his submission that the petitioner is handicapped, a certificate dated 11th December, 2004 has been placed on record from the Office of the Medical Superintendent, Safdarjang Hospital which reads as under:
This is to certify that Miss Cheena Nanda, whose particulars are furnished below is suffering from MENTAL RETARDATION, her percentage of disability is 38%.
Since the Bulletin of Information of the respondents required certification of the disability and the fitness of the petitioner by the Vocational Rehabilitation Centre for Physically Handicapped, the petitioner approached this Centre and was given a certificate dated 8th February, 2005 which is in the following terms:
During her evaluation, she has been found as slow learner. Though she does not fall in the category of Mental or Physical disability, yet she is suitable to undergo training in Drawing & Painting.
Copy of this certificate was given to the respondents to enable them to take instructions.
However, learned Counsel for the respondent Nos. 1 and 2 has contended that in terms of Clause 7.4, only physically handicapped persons could have been granted admission if they satisfy the eligibility conditions. It was clearly stated in the Information Bulletin that the reservation could be effected only amongst such physically handicapped persons who suffered from a hearing impairment and loco motor disability.
It has further been submitted that in the instant case, the petitioner did not disclose that she was suffering from a mental disability. According to learned Counsel for the respondents, the recommendation dated 28th August, 2003 was obtained by the petitioner by a misrepresentation that she was physically handicapped. As per the certification given by the Safdarjang Hospital, the petitioner does not suffer from any physical incapacity but is stated to be mentally retarded. On the other hand, according to the certification of the Vocational Rehabilitation Centre, the petitioner is neither physically nor mentally handicapped but is merely a slow learner. It is submitted that for all these reasons, the petitioner does not fall in any of the categories stated in Clause 7.4.
I have given my considered thought to the submissions made before me and perused the record placed before me. It is to be noticed that the communication dated 20th May, 2004 whereby the approval of the respondent No. 1 was granted enabling the petitioner to appear in the first year diploma examination and the further requirement of production of the certificate from the Vocational Rehabilitation Centre does not appear to have been communicated to the petitioner. On the other hand, the Principal of the respondent No. 3 has noticed all facts in her letter dated 10th September, 2004 and has even pointed out that apart from the fact that the petitioner was occupying a seat for a physically handicapped person but there was vacancies available even for general candidates in the institution. The request was made to adjust the petitioner against such vacancies which actually existed.
The respondents have produced the original record maintained by them before this Court. From a perusal thereof, I find that there has been no consideration of the facts set out in the letter dated 10th September, 2004 by the Principal. There is no note sheet even in the file. The authorities have also not noticed that the petitioner was never required to produce the certificate as was stated in the letter of 20th May, 2004.
The admission given to the petitioner was also unconditional and she was never given an opportunity to produce the certificate of the Vocational Rehabilitation Centre for physically handicapped by any communication from either respondent No. 1 or 3. No fault can therefore be attributed to the petitioner.
I also find that the petitioner was permitted to join the course which she undertook for the entire first year and was well into the second year at the time the impugned order dated 29th September, 2004 was passed. In view of the fact that the petitioner had been permitted to join and undertake the course for this entire period, interest of justice would have merited if the petitioner had been given an opportunity to show cause and to make a representation against the proposed action.
This not having been done, the order dated 29th September, 2004 has resulted in grave injustice to the petitioner.
It is also to be noticed that the medical experts have not agreed with regard on the nature and extent of disability of the petitioner. Mr. R.K. Saini, learned Counsel for the petitioner has submitted that the petitioner was a special education student in the Sadhu Vasvani International School for Girls up to her class 10th and had successfully passed the class 12th examination from the National Open School.
There is no contest to the fact that she was physically disabled on account of her inadequate palate movement and the other difficulties noticed above.
I find that the petitioner was admitted to the course as back as in August, 2003. No objection of any kind was taken and she was permitted to take the first year examination. Even for the second year, fees was also accepted from her when the course for the second year was underway, the order dated 29th September, 2004 was passed without noticing any of the submissions made by the Principal of the respondent No. 3.
It is not disputed that the petitioner had passed her class 12th examination and was eligible for being granted admission to the course. The certificate issued by the Vocational Rehabilitation Centre for Physically Handicapped shows that it has certified that the petitioner was in a physical condition to undertake the course and training in Drawing and Painting even though she has been categorised as a slow learner by it. There is no allegation whatsoever of any insufficiency in the petitioner''s abilities while she has been undergoing the course for the last two years.
It is also noteworthy that there is no dispute to the factual position of availability of vacancies against the physically handicapped reserved seats. In addition, as per the letter dated 10th September, 2004 written by the Principal of respondent No. 3, there exists a vacancy in the general category as well. Even though the petitioner was initially granted admission pursuant to a recommendation by the Minister, however the same was approved by the respondent No. 1 vide its letter dated 20th May, 2004. The respondent No. 1 also took no action whatsoever in this matter despite knowledge of the petitioner''s admission and two communications dated 29th July, 2004 and 10th September, 200 from the respondent No. 3. In the given facts, if the respondents do not consider the petitioner as a handicapped person, her admission has to be considered against the general seats which are admittedly available.
I may appropriately advert to the law laid down by the Apex Court in the judgment reported at Sanatan Gauda Vs. Berhampur University and others, which is to the following effect:
This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his mark-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law examinations .He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law course. The University is, therefore, clearly stopped from refusing to declare the results of the appellant''s examination or from preventing him from pursuing his final year course.
The pronouncements cited by the petitioner are also to the same effect. The respondents are bound to act with dispatch and cannot be permitted to cancel admission after letting a student to study in the course in the manner in which the petitioner has been permitted. The respondents are bound by principles of promissory equitable to permit the petitioner to complete her course.
The petitioner undoubtedly is suffering a difficulty. She was permitted to join the course without any objection and has undergone the same for two years. Pursuant to orders dated 2nd May, 2005 she was permitted to take the practical examinations.
Having regard to the peculiar facts and circumstances of the instant case, I am of the view that the order dated 20th September, 2004 cannot be permitted to stand. Accordingly, I hereby set aside the order dated 29th September, 2004. The respondents shall declare the result of the petitioner for the first year of the Diploma Course in Art for Drawing Teachers and shall permit her to continue the course for its full term and length. The petitioner shall be permitted to undertake the theory examinations of the course for the second year as well.
The writ petition is allowed in the above terms.
Dasti.