MS. NAMAN VARMA vs THE DIRECTOR, THE INDIAN INSTITUTE OF TECHNOLOGY, BOMBAY AND ANR

,,,,

A.K. MENON, J",,,,

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 2013Â batch.Â,,,,

The facts in brief leading to the present petition  are as under : The petitioner   is a resident of Mumbai and has securedÂ,,,,

degree in Bachelor of Design (Product Design)  from Symbiosis  International University. She suffers from a learning disability Â,,,,

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 reliesÂ,,,,

upon a certificate granting privilege dated 17th June, 2006 and 19th August, 2006. Even in the Junior College whileÂ",,,,

undergoing  studies for Class XI and XII special concession were given by the concerned college. She has relied upon the certificate Â,,,,

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 recommendedÂ,,,,

for graduate  studies in design. Apparently dyscalculia is directly  associated  with the disability in dealing with numbers.,,,,

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 underÂ,,,,

the general category. CEED 2013  consisted of two parts,  Part A  and Part B. The petitioner appeared for both Â",,,,

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.,,,,

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 respondentâ€" 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 4th 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.",,,,

It was thereafter that the petitioner sought legal opinion with regard to her admissibility to the respondent Institute under the category of persons,,,,

with learning disability. The legal opinion received by the petitioner on 13th 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 16th 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 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.,,,,

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 Â",,,,

predicament. In response thereto,  the Deputy Chief Commissioner   of Persons with Disabilities informed the Director, IITÂ",,,,

that the Chief Commissioner  had advised the respondent to consider the admission of the petitioner  in post graduate design Â,,,,

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.,,,,

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 wasÂ",,,,

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 Commissioner  from the Registrar, IIT, MumbaiÂ",,,,

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 categoryÂ,,,,

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.,,,,

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. 25th 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 Â,,,,

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 was of 2006 and a fresh certificate should be obtained. It is",,,,

thereafter  that the petitioner had obtained a fresh  certificate dated 4th January, 2013 from the Learning Disability  Clinic,",,,,

K.E.M. Hospital, Parel and the same came to be submitted on 17th January, 2013.",,,,

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 Â,,,,

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 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.Â,,,,

It was in the above background that the petitioner approached this Court by filing this petition.  The respondent filed an affidavit dated 2nd,,,,

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 B 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.",,,,

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 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. Â",,,,

The deponent has explained  that CEED is conducted on all India level and there are two question papers Part A and Part B.Â,,,,

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

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.,,,,

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 CEEDÂ 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, 2010Â 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 “passâ€​ under the PD category. Â,,,,

A further  affidavit  dated 30th August, 2013 of the same  deponent records  that as per the interim order dated 5thÂ",,,,

August, 2013 the petitioner was 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 threeÂ",,,,

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. Â,,,,

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 14th 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 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 29th 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.Â,,,,

Therefore, the interim order dated 5th 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. Â,,,,

CEED Marks

(out of 25)","Written Test

(out of 25)","Studio Test

(out of 10)","Interview

(out of 40)","Total Marks

(out of 100)

8.75,8,4,12,32.75

circumstances,  her performance at the admission test did not qualify for IDC programme and it is therefore submitted that  if despite",,,,

standard of fairness that the institute has exhibited, the petitioner is admitted, it would be major blow to the standards maintained  by the",,,,

institute.,,,,

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 expressedÂ",,,,

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.,,,,

Mr. Naphade further submitted that definition of disability contained in Section 2(i) must be read with Section 2(r) which deal withÂ,,,,

“mental retardationâ€. He further submitted that  certificate required to be obtained under the Act should be from a medicalÂ,,,,

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) “disabilityâ€​ means :-,,,,

(i) blindness;,,,,

(ii) low vision;,,,,

(iii) leprosy-cured;,,,,

(iv) hearing impairment;,,,,

(v) locomotor disability;,,,,

(vi) mental retardation;,,,,

(vii) mental illness;,,,,

Section 2,,,,

“(p) “medical authorityâ€Â means any hospital or institution specified for  the purposes of this Act by notification by the,,,,

appropriate Government.â€​,,,,

Section 2,,,,

(r) “mental retardation†means a condition  of arrested  or incomplete development  of mind of a person which is speciallyÂ,,,,

characterised by sub-normality of intelligence.â€​,,,,

Section 2,,,,

“(t) “person with disabilityâ€Â  means  a person suffering from not less than forty percent  of any disability as certified Â,,,,

by a medical authority.â€​,,,,

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 retardationâ€Â 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.,,,,

The dictionary meaning of dyscalculia  is difficulty in learning comprehending arithmetic, such as “difficulty in understanding numbers,",,,,

learning how to manipulate numbers, and learning facts in mathematics.†In some cases it is known as mathematics learning disability.Â",,,,

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 authorityâ€Â 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.,,,,

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 thanÂ,,,,

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 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.,,,,

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.DesÂ,,,,

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  qualifyingÂ,,,,

marks in the IDC admission test.Â,,,,

Mr. Naphade has tendered a further affidavit  of Shri Joglekar dated 11th August, 2016 wherein he contends that he is not served",,,,

with notice 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 contentsÂ",,,,

of earlier affidavits dated 2nd August, 2013 and 30th August, 2013. He has referred to and mentioned  cut off marks in Part BÂ",,,,

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.,,,,

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 toÂ,,,,

make a misstatement  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.",,,,

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

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%Â for the General category that she had applied in.",,,,

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 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 HospitalÂ",,,,

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.",,,,

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",,,,

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.,,,,

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.Â,,,,

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.,,,,

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  subnormality 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 definitionÂ,,,,

of “mental  illnessâ€Â under section 2(q)  it refers to mental disorder other than “mental retardationâ€. 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.,,,,

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 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.,,,,

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 twoÂ",,,,

categories, namely, general, OBC/SC/ST are not  categories which are contemplated under the Act. As far as 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 “savedâ€. 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 “Nâ€Â presumably  stating,,,,

“Noâ€​.,,,,

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 Â,,,,

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 bonafideÂ,,,,

claim.    It is evident that when online form was filled the petitioner did not claim  benefit of learning disability.   Besides,,,,

this  it appears 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 “Nâ€Â meaning “Noâ€.   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. Â,,,,

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.",,,,

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 “Employmentâ€.   The petitioner's case would fall  under Chapter VÂ,,,,

dealing with   “Education†which requires appropriate Governments and local authorities  to support  free education, vocational",,,,

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 devicesÂ",,,,

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 casesÂ,,,,

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 specificÂ,,,,

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;",,,,

(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;,,,,

andÂ,,,,

(vi) to make special provision for the integration of persons  with disabilities into the social mainstream.,,,,

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 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.,,,,

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. Â,,,,

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. Â,,,,

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.Â,,,,

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 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.,,,,

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.",,,,

In Sanchalakshri vs. VijayaKumar Raghuvirprasad Mehta and 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. ChaturvediÂ",,,,

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)Â 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.,,,,

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 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.,,,,

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 justiceÂ,,,,

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 the IIT itself.,,,,

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.Â",,,,

Mr.Samal submitted that the principle embodied in the judgment of Sangram Singh (Supra) had been quoted with approval in variousÂ,,,,

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.,,,,

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,,,,

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.,,,,

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.,,,,

In our view there can be no uncertainty over the powers of the High 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.â€​,,,,

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. Â,,,,

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.Â,,,,

(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.",,,,