1. These nine writ petitions be conveniently decided by a common judgment as in each of them a challenge is made to the validity and correctness is made to the validity and correctness of the admission and the Rules for the admission for the 4 year B. Tech (Chemical Engineering) Examination Course (hereinafter referred to as the Degree Course) of the Laximinarayan Institute of Technology, Nagpur (hereinafter referred to as the L. I.T.) This L.I.T. is being run by the University of Nagpur.
2. There is no dispute that the minimum qualification for the admission of the degree course is 12th standard higher secondary school certificate of first year B. Sc or its equivatent. The applicant has to pass in phsice, chemistry and mathematics with 50% marks. In addition, he has also to pass in Language examination. The L.I.T. admits students to the degree course every year. For the year 1979-80 the L.I.T. issued prospectus for all the courses that are run by the Institute including the degree course in question. In the prospectus it was stated that there would be 60 seats for the degree course and the allocation of those seats would be as follows:
18 seats As per allocation of Government of India. 3 - Jammu and Kashmir 8 - 1 seat for each of the States namely, Rajasthan, Assain, Orissa, Karanataka. Bihar, Gujarat, Kerala, and Nagaland, 7 - Unreserved, __1814 Seats for old Madhya Pradesh.28 Seats For Maharashtra including Vidarbha__60
Candidates were required to submit their applications not later than 1-7-1979. However, the time was ultimately extended to 20-7-1979. In order to understand the rival contentions of the parties, we would initially state the averments made in Writ Petition No. 2708 of 1279 and the returns of the respective respondents in that petition. If necessary, we would also narrate in brief the contentions raised in the other writ petitions.
3. Prasanna, the petitioner in Writ petition No. 2706/79 has passed the qualifying examination with 215 marks in the three concerned subjects namely, physics, chemistry and mathematice. The percentage of these marks in 71.66 per cent. He filed an application for admission to the degree course with the L.I.T. The Selection Committee prepared the select list in two instalments. Firstly, it was published in the middle of August 1979 and chance calls were also sent to those candidates who had secured up to 80% marks, Prasanna did not receive any such chance call, as his percentage was 71.66 The L.I.T. increased the number of admissions from 60 to about 121, A news item appeared in the Nagpur Times dated 5-9-1979 that the last date for admission to the degree course would be 6-9-1979. Prasanna attended the Office of L.I.T. on 6-9-1979. Similarly, the petitioners in Writ Petitions Nos. 2714/79, 2715/79, 2905/79 and 2906/79 and 2854/79 were not present. The grievance of the petitioner Prasanna is that he has been improperly refused admission though he has secured better percentage of marks as compared to some of the students who have been admitted. For example, respondent No. 3 in Writ Petition No, 2706/79 was admitted though his marks in the science subjects were 212, Another grievance is that on 6-9-1979 a peculiarly irregular procedure was followed for admitting the students. What was done was that the L.I.T. took into account the merits of the students who were present in the office on 6-9-1979 and on the basis of that merit, the admission were made. The contention of Prasanna is that this procedure is had inasmuch as there was no publications that the process of admission will be completed by filling the vacancies or amongSt those applicants who would be present on 6-9-1979. The applicants were kept in dark and as such the students having better merit than those admitted on 6-9-1979 could not attend the office. Prasanna has described this procedure of admission on 6-9-1979 as 'spot admission' and has stated that this is highly illegal and discriminatory. According to him, the L.I.T. authorities were expected to prepare the select list on the basis of comparative merits of the applicants. The admissions should have been granted with the help of such select list. Some times the selected students might not join the degree course and, therefore, the L.I.T. should have prepared a waiting list which should also have been prepared on the basis of merits and thereafter should have also have been prepared on the basis of merits and thereafter should have offered admission to the students mentioned in the waiting list, as per the serial number in the list, Prasanna has contended that the type of admission that was effected on 6-9-1979 is unheard of and it is liable to be quashed as the L.I.T authorities have used double standard while making admissions namely, (1) the standard of merit in case of some students and (2) the presence on the last date of admission. It is alleged that all this is discriminatory and liable to be struck down. Another contention of Prasanna is that after issue of the prospectus, the L.I.T. authorities decided to reserve four seats for the Wards of the University employees and that on the basis of that reservation, respondents Nos. 3, 6,7 and 8 have been admitted though they could not have secured admission if the test of merit along would have been applied. It was contended that the classification of 'wards of the University employees' is not a reasonable classification and that it has no nexus with the related object
4. When the hearing of these matters began on 10-7-1980, the counsel for the L.I.T. produced before the Court a list of the students admitted for the degree course in 1979-80 with the necessary break-up the various categories or reservations in such admissions. The petitioner Prasanna, therefore, filed Civil Application No. 1537 of 1980 making some additional averments, The list so produced by the respondents showed that in all 121 admissions were effected. The list has given separate categories about reservations and has mentioned the names of the applicants admitted under each category. Prasanna has prepared a statement on the basis of the list and by Civil Application No. 1537 of 1980, he wants that the said statements should be attached as Annexures E and F to the main petition. In Annexure E he was shown that instead of original 60 seats, in all 79 candidates were allotted as per the various categories mentioned in the prospectus, As the seats have been increased, there is consequential increase in some of the categories. For example, 23 admission were allotted for old Madhya Pradesh instead of 14, while 46 admissions of open competition instead of 28, In Annexure-E Prasanna has thereafter given brake-up of the remaining 40 seats as follows:
4 Wards of Nagpur University Employees.6 Bombay University.3 Poona '2 Shivaji '3 Marathwada '1 Madras '6 Scheduled Castes4 Scheduled Tribes3 Nomadic Tribes5 Other Backward classes1 Political Suffer__40
Prasanna has also filed Civil Application No. 1546 of 1960 challenging the formation of the above-mentioned Categories and allotment of seats for each of these categories. In Annexure-E (sought to be produced by Civil Application No. 1537 of 1979), Prasanna has stated that these students having marks less than him, have been allotted from Madhya Pradesh and that 4 seats from Jammu and Kashmir were admitted though they had secured marks less than him. There is another statement in Annexure-F that 11 students (as mentioned in that Annexure) from the categories of scheduled caste, scheduled tribes and nomadic tribes were admitted though they had accured marks less than Prasanna. Thus Prasanna has challenged the creation of new categories (including the one meant for the Wards of the University employees). His contention is that the L. I. T is bound to admit the students as per the categories mentioned in the prospectus and that the said institution is stopped from altering or adding to the categories to the prejudice of Prasanna. Prasanna has also alleged that on the increase of seats from 60 to 121, there should have been proportionate increase of seats under each of the categories. He wants to state that in the prospectus there were 28 general seats and that they should have been increased to 56, He has also alleged in Civil Application No, 1548 of 1980 that the reservation for the categories as mentioned in the original prospectus and also as subsequently effected is liable to be struck downs as it is excessive reservation.
5. With these another (sic) averments Prasanna has challenged the admissions made on 6-9-1979 as 'spot admission' and also the admissions of respondents Nos, 3, 6, 7 and 8. As the petitione could not be decided before the completion of the academic year 1979-80, Prasanna has amended the relief clause by praying that he may be ordered to be admitted for the academic year 1980-81.
6. The respondents 1, 2 and 4 have filed their return. They admitted that after the issue of the prospectus, seats have been increased and the last date for admission was fixed as 6-9-1979. A Press Note dated 4-9-1979 has been issued by the Nagpur University. It is at Annexure-B to the return page 49 of the paper book. It reads as follows;
'It is notified for general information of the students, guardians and colleges/institutions affiliated to Nagpur University that the permission shall not be granted for admission/enrolment of students after Thursday, the 6th of Sep., 1979, under any circumstances.'
The respondents contended that no account of reservation for the different categories there could not be a single merit list. As far as the reservation for the Wards of the University employees is concerned, these respondents contended that a representation to that effect was received from the employees. A meeting of the L.I.T committee was not likely to be held immediately. Hence the report of the Director recommending such reservations was accepted by the Vice Chancellor under S. 11(4) of the Nagpur University Act, 1974, This was done as an urgent action was necessary. In due course, the meeting of the L.I.T committee was held on 29-12-1979 and the reservations for the Wards of the University employees had been approved in that meeting. It was denied that this reservation was discriminatory or was in any way bad.
7. The respondents admitted that on the last date i.e., 6-9-1979 there were still some admissions to be granted. On that dat a roll call was taken of the applicants who were present In the office and from amongst them those students who had preferential merit were admitted. It wad contended that Prasanna was entitled to an admission in the general and not in reserved categories. There were in all 226 students who were having marks between 79,66 percentage to 81,66 percentage from the general category. These students were not admitted. Prasanna, therefore, has no right to claim admission in preference to these students. It was alleged that the petition is bad as these students are not made parties. Prasanna has described the admissions made on 6-9-1979 as 'spot admission'. The respondents contended that there was nothing like 'spot admission' and that this phrase is creation of Prasanna's imagination. At the same time, the averments in paragraphs 9 and 18 of the return do indicate that on 6-9-1979 a general roll call was taken of those applicants who were present and from amongst them admission was granted. The respondents have pleaded that this is general practice and it is good and legal. The respondents further pleaded that the First Year course was practically complete and that Prasanna cannot claim any admission to the course. They also alleged that Prasanna's Prayer for admission for the Course beginning in 1980-81 is not legal and proper. As far as the two civil applications filed by Prasanna are concerned, these respondents have contended that the list filed on 10-7-1979 was not an authenticated list and it was supplied at the petitioner's request, There is also a statement in paragraph I of the reply that the list was produced as cursory query was made by this Court, However, this statement appears to be an incorrect one. As far as the reservations for Scheduled Castes, Scheduled Tribes, Nomadic Tribes and political sufferers etc., are concerned, the respondents contended that the Government has made resolutions from time to time for such type of reservations and the University has accepted them and as University has accepted them and as such these resolutionare quite legal. It was then alleged that eh L. I. T. Is the only Technical Institution in the Maharashtra which provides instructions in Chemical Engineering and that reservation for other States was necessary as these States did not have provisions for such types of course. Respondent No. 4 who is Vice-Chancellor of the University and respondent No. 5, who is the Director of L. I. T have filed affidavits as to how representation was made for making reservations for the Wards of the University employees and that the Director has recommended such reservation, the Vice Chancellor approved it and later on the L.I.T committee has approved this action in its meeting dated 29-12-1979 Respondents 7 and 8 are the two students who are admitted in the quota reserved for the Wards of the University employees. They have filed their return. In substance, they contended that the reservation is quite legal and proper.
8. In the remaining writ petitions there are similar challenges for the reservation in favour of the Wards of the University employees. The admission known as 'spot admission' that took place on 6-9-1979 was challenged on similar grounds. These challenged on similar grounds. These challenges have been disputed by the respondents by raising contentions similar to those in Prasanna's writ petition. Hence it is not necessary to reproduce all these rival contentions in the rest of the petitions, However, there afe certain other additional allegations and we would like to state them in brief.
9. Milind in the petitioner in Writ Petition No. 2714 of 1979, He has secured 77 per cent marks i.e. 231 marks our of 300. Ganesh is the petitioner in wirt petition No. 2715 of 1979, He has also secured 77 per cent marks. The additional contentions of both these petitioners are also similar, Respondent No. 4 in these petitions is one Ratankumar Shrivastav. He has secured 76,66 per cent marks and he was admitted though Milind and Ganesh were refused admission. These two petitioners have also challenged the admission of respondent No. 3 who has secured admission in the reserved category of the University employees. This respondent. No. 3 has obtained 74 per cent marks. As far as the 'spot admission' that is admission on 6-9-1979 is concerned, Milind and Ganesh have contended that the two students V. M. Deshpande and S. L. Pandharipande were not present at the L. I,. T. Office on 6-9-1979 and still they were admitted. According to them, this is also discriminatory. Respondents I and 2 have contended that V. M. Deshpande and S. L. Pandharipande were admitted on 6-9-1979 after verification of their marks and after the fees have been paid. Their is no specific denial that these two students were not present on 6-9-1979. According to the respondents 1 and 2, respondent No. 3 was property admitted in the University empployees. As far as the admission of respondent No. 4 is concerned, it was alleged that Milind's percentage of marks was 76 per cent and as such respondents No. 4 who has secured 76.6 per cent has been property admitted on 6-9-1979. The presence of petitioners Milind and Ganesh have filed counter affidavits. Milind has denied that his percentage of marks was 76%. In these two affidavits they have also alleged that those persons who have secured less marks than these petitioners, have been admitted.
9-A. Sarvat Javed is the petitioner in writ petition No, 2710 of 1979. He has secured 75.^% marks, His additional contention is that he belongs to JULAHA community which is declared as 'other backward class' The respondents had nowhere mentioned or published that some seats were reserved for 'other backward class' and as such javed could not at any time press his claim in this category of 'other backward class' Javed, therefore, contended that the selection of some other students as other backward class, in preference to Javed was bad, particularly when Javed has secured more percentage of marks.
10. Vikas in the petitione in Writ petition No. 2905 of 1979, while Sanjay has filed writ petition No. 2906 of 1975, Their ground is that respondent No. 3 P. V. Sane whose percentage of market was 70.33 has been wrongly admitted in preference to Vikas add Sanjay, Their percentage respectively is 70,76 and 74, The respondents contended that as the admissions were to be initially finalished before 20-8-1979 and as respondent No. 3 was the only applicant present on that day, was admitted and that Vikas and Sanjay could have secured admissions on 20-8-1979 had they remained present.
11. It was contended on behalf of the respondents that the grievances made by the petitioners are not justiciable on account of any discrimination said to have been in contravention of Art. 14 of the Constitution of India. What is contemplated by Art. 14 is that the State shall not dent to any person equality before law or equal protection of law. The argument is that the petitioners have not produced any rules framed for the admission of the students and that they have not contended that there was a breach of such Rules, so as to cause discrimination. The petitioners submitted that the prospectus that have been issued by the University would constitute such Rules and Regulations. In out opinion, the University authorities would not framed Rules about the admission. Apart from the the scope of Art. 14 cannot be intrpreted in a restrictive manner. This aspect in a restrictive manner. This aspect has been considered by the Supreme Court in the case of Ramana v. 1. A Authority of India, reported in, : (1979)IILLJ217SC . It was a case of grant of right to run a restaurant at the Bombay Airport. We need not refer to the facts in that case. Suffice it to say that the following observations in paragraphs 20, 21 and 34 would show that even an administrative action can be attacked on the ground of discrimination.
'The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of given jobs or entering into contracts of otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance. .................'
'The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. ...............This principle was recognised and applied by a Bench of this Court presided over by Ray. C. J., in Erusian Equipment and Chemicals Ltd. V, State of West Bengal : 2SCR674 (supra) where the learned Chief Justice pointed out that the State can carry an executive function by making a law of without making a law. The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution'.
'It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also 'the judicially evolved rule of administrative law, the ist respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, ........ The action of the 1st respondent in accepting the tender of the 4th respondents, even though they did not satisfy the prescribed condition of eligibility; was clearly discriminatory since it excluded other persons similarly situate from tendering for the contract and it was also arbitrary and without reason. The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action.'
In view of this position of law, it will be very difficult for the respondents to contend that the University authorities have not grimed any rules for the admission and that consequently, the petitioners would not be able to urge that any of those rules were discriminatory. It would, therefore, be necessary to consider as to whether the action of the University authorities stands the test of equality.
12. There are two main contentions which are for our decision. We have already observed that on the basis of the representation of the University employees. The Director of the L. I. T. Recommended the reservation of four seats for the 'Wards of the University employees' and the Vice-Chancellor under S. 11 (4) of the Nagpur University Act. 1974 has accepted that recommendation. *(It is in this manner that some of the respondents out of respondents Nos. 3, 6, 7 and 8 in writ petition No. 2706 of 1979 were admitted though they had lesser percentage of marks as compared to some of the petitioner. These respondents have respectively secured 70.6% 74%, 75.3% & 82% of marks.) As against this, percentage of marks of the nine petitioners ranges from 71,66% to 78.33%. The argument on behold of the petitioners is that the University as also the L.I.T Committee which functions under the University Ordinance No. 26 were bound by the principles of equality and that while admitting students to the degree course, a discrimination on the basis of any irrational basis is not permissible, The principles of equality no doubt allow classification. However, it is now well settled that such classification is permissible only if the two conditions exist namely, in the first instance the classification must based on intelligible differentia which distinguishes the class so formed from others out of the class. Secondly, the differential must have a rational relation to the object sought to be achieved by the rules or the procedure that is being followed. It was contended by Shri Holay that a class of 'Wards of the University employees' cannot stand these two tests and hence the reservation in favour of such 'Wards of the University employees' is not permissible. As to which classification is permissible will depend upon the facts and circumstances of each case. The field in which the classification is to operate and the object for which the classification is made will have to be considered in order to find out as to whether such classification disturbs the equality of equal treatment to all. A question about a few types of
*Bracketed portion substituted as per correction order dt. 28-8-1980. In C. A. No. 1094 of 1980-Ed.
Classifications for admission to the medical and other colleges has arisen before the Supreme Court in a number of cases. It will not be out of place to briefly refer to those cases for the purpose of seeing the principles laid down by the Supreme Court in the reaspect. In the case of P. Rajendra v. State of Madras, reported in : 2SCR786 , there was a provisions for districtwise allocation fo seats in the medical college. Seats were allocated to various districts on the basis of ratio of the population of each district to the total population of the State. This type of reservation or allocation was held to he had after considering the classification on the basis of the abovementioned two tests. We would like to reproduce the following observations in paragraph 11.
'The fact, however, that the classification by itself it reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is is to get the best talent for admission to professional colleges, the allocation of seats districtwise has no reasonable relation with the object to be achieved. If anything, such allocation will result 'in many cases In the object being destroyed, and if that is sok the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources.'
13. An agrument was advanced before the Supreme court that the above mentioned classification was necessary as the educational facilities in Madras city were better as compared to other districts of the State and the students from Madras city would have an advantage over the students of other disstricts. The agrument was repelled by the Supreme Court in the following words:
'Further even if we were to accept this contention that would only justify allocation of seats between the city of Madras on one side and the rest of the State on the other and not a district wise allocation throughout.'
14. It is true that the University wise reservation for admission to the Medical Colleges has been upheld by the Supreme Court in the case at D. N. Chanchala v. State of Mysore, reported in : AIR1971SC1762 , To the facts and circumstances in that case, the Supreme Court held that the University classification ws reasonable and has a nexus with the objects. There were three Universities in the State of Mysore namely, Mysore University, Bangolore University and Karnataka University and the rules for the admission to the Medical Collects have provided distribution of seats on the basis of these Universities. The Supreme Court has held that the Government has laid down the criteria for admission to the Colleges and also decided the sources from which the admission should be made and that three was nothing arbitrary in this process. The Supreme Court has held as follows in paragraph 22:
'In our view, there is potting undesirable in ensuring that those attached to such Universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own Universities, Such a bais for selection has not the disadvantage of districtwise or unitwise selection as any student from any part of the State can pass the qualifying examination in any of the tree Universities irrespective of the place of his birth or residence...................'.
In that very case there was also a question about the validity of reservation in favour of the wards of the political sufferers. That reservation was upheld in the following words:
'The object of the rules for admission can obviously be to secure a fair and equitable distribution of seats amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitableprinciple would also be that which secures admission in a just proportion to this who are handicapped and who, but for the preferential treatment given to them. Would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way b improper it that principle were also to be applied to those who are handicapped but do not fall under Article 15(4). It is on such a principle tha reservation for children of Defence personnel and Ex-Defence personnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere normal facilities available elsewhere are and were not available elsewhere are and were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who in consequence of their participation in the emancipation struggle became unsettled in life...................'.
The reservation in favour of sons and daughters of the residents of Union territories and of the Central Government servants attached to Foreign Missions has been upheld by the Supreme Court in the case of Chitra Ghosh v Union of India, reported in : 1SCR413 , The relevant headnote reads as follows (at p. 38);
'The first group of persons for whom seats have been reserved are the sons and daughters of residents of Union territories other than Delhi. These areas are well known to be comparatively backward and with the exception of Himachal Pradesh they do not have any Medical College of their own. It was necessary that persons desirous of receiving medical education from these areas should be provided some facility for doing so. As regards the sons and daughters of Central Government servants posted in India Missions abroad it is equally well know that due to exigencies of their service these persons are faced with lot of difficulties in the matter of education. Apart from the problems of language, lit is not easy or always possible to get admission into institutions imparting medical education in foreign countries ...............The classification in all these cases is based on intelligible differentia which distinguished them from the group to which the petitioners belonged'.
15. This Court in the case of Ram Gopal Mangilal v. Dean, Medical College, Nagpur, reported in ILR 1972 Bom 279, has upheld the reservations for the wards of the employees of the State Government and the Central Government. The relevant headnote reads as follows:
'These two categories stand differently from the rest and in view of the fact that the employees of the State Governmentare, by the terms of their service, required to go on transfer or on deputation to different places, a provisions had to be made for the children and wards of such servants who, in the absence of such a provision, would suffer and their children and wards would be deprived of the facilities of further studies if such a provision was not made and they would so suffer not for their fault but because their parents and guardians are transferred from one place to another by the orders of the Governmnet. Similar is the case with the Central Government servants and these two categories of persons could, therefore, be separately classified and such a classification cannot be said to be unreasonable or arbitrary'.
It is thus clear that in the case of admissions in medical and other professional colleges there can be reservation in favour of a particular class. Shri Anthony for the University authorities contended that in this background a classification of 'Wards of the University employees' would b a reasonable classification and that it has a nexus with the relevant objects. He also relied upon the decision of the Patna High Court in the case of Shiv Shankar v. State, reported in : AIR1971Pat374 . There was a Residential School which was in remote corner of the State and the School had a sanctioned strenth. A provisions was made that the wards of the teachers in the school can be admitted as day-students. This admission would be over and above the sanctioned strength. The said provision was challenged. The challenge was rejected in the following words (at p. 377);
'Without affecting the accommodation of fixed number of seats in each class, and without incurring extra expenditure. Government extended certain facilities to school employees to attract efficient teachers for efficient running of the school which was in a remote corned where facilities forwards of employees even up to secondary standard were not available. It was not a case of increasing seats in school but it was a case of giving special facilities by way of service condition of the employees of school..............'
In paragraph 12, 14 is observed as follows:
'To reserve seats in colleges for the University education and specially in technical lines cannot be equated with giving of facilities for school education to the children of the employees of the school.'
It would thus be seen that the facts before the Patna High Court were different and distinguishable and in the peculiarcircumstances it was held that there was nothing discriminatory.
16. Shri Holay relied upon another decision of the Patna High Court in the case of Umesh Chandra v. V. N. Singh reported in AIR 1968 Pat 3. It was a case of admission to the medical college and under the Rules certain reservations were made in favour of the sons and daughters of the employees of the University receiving salary up to 100 Rs. Per month. This reservation was on the ground of extreme pecuniary difficulties even though they were not included in the merit list. Second provision was made for the sons and daughters of the employees rendering meritorious service to the University. The Full Bench of the Patna High Court has held that there was no rational nexus between this reservation on the one hand and the medical college on the other. It was found that such a reservation constitutes a concession to the employees and it is discriminatory. The concession to the employees was a part of condition of service and such condition of service cannot have relevance while deciding the question of admission to the students to the medical college.
17. Shri Anthony drew our attention to certain provisions to the Nagpur University Act, 1974 for the purpose of contending that reservation in favour of the 'Wards of the University employees' has direct relevant bearing
He relied on Ss. 4 and 75 which read as follows :
'4. Subject to such conditions as may be prescribed by or under the provisions of this Act, the University shall have the following powers and perform the following duties, that is to say;-
(30) make arrangement for promoting the health and general welfare of the employees of the University.'
'75. The University shall make such provision for the 'benefit of its officers, teachers and other employees in matters like insurance, pension and provident fund of other behefits, as it thinks fit, and in the manner and subject to the conditions, If Any, prescribed by the Statutes.'
The contention is that the University Is under the obligation to look after the welfare of its employees and that reserving four seats for the degree course would be an action in the direction of the said welfare. It was contended that the welfare of the employees would be a good basis for differentiating them from other persons who are not employees. In our opinion, this contention cannot be accepted for two reasons. In the opinion, the contention cannot be accepted for two reasons. In the first place while deciding the admission of students students to the degree course the object can be (1) imparting education, and (2) selection cannot have any relevance while deciding this function of admitting the students to the various curses. It may be material to note that the running of courses and the admissions of students thereto would be the power and duty within the category of Sec. 4 (23) which reads as follows:
'4. (23) make the University the centre of social and economic transformation through education as envisaged in the preamble, directive principle and other provisions in the Constitution of India.'
It was rightly urged by Shri Deshpande for some of the petitioners that the object in running a collected or other institution cannot be intermingled with the objects of certain provisions which are means for the benefit of the employees. According to him, the University authorities would have full powers to make provisions for the benefit of its employes. However, those powers cannot form a basis for making a class (Wards of the University Employees) while admitting the students to the educational courses. While working in the field of running a college or an institution, the object would be to admit students in a fair and equitable manner as has been held by the Supreme Court in the case of D. N. Chanchala v. State of Mysore, reported in : AIR1971SC1762 . It was rightly urged by Shri Deshpande that the University cannot introduce the idea to doing benefit to its employees while discharging its duty of running a college of any other institution. Thus the fact that the University wants to bestow swum benefits to tis employees in the shape of reservation of seats would be a foreign matter and it would nto have any direct nexus in the objects of admission of the students to the University college.
18. Another important factor deserves to be considered. While making a classification there must be some peculiarities which distinguish that class from the rest. For example, the State and Central Government servants can be classified separately, because they are liable to transfer. The staff employed in the foreign Mission would be a separate class as such staff would be experiencing difficulties in the education of their children. Similarly, the wards of the political sufferers would be a different class as such wards on account of the activities of their parents (in the freedom fight) would not have the usual educational facilities which others will get. In the present case, there is no such intelligible differential while classifying the University employees separately. There is no possibility of such employees being transferred from one place to another, Similarly, the University employees cannot be termed as those who could not arrange for the education of their children on account of any other peculiar difficulties. The 'Wards of the University employees' are thus at par with the Wards of any other employees. Not only that but they are also at per with wards of other persons such as petty traders, businessmen, artisans etc. In view of this discussion, it is clear that by creating four reservations in favour of the 'Wards of the University Employees' the University has acted in a discriminatory manner and the principles of equality has not been followed. The discrimination can be seen from this fact that the four students of this categery(who are respondents Nos. 3, 6, 7 and 8 in Writ Petition No. 2708/79) were admitted though on merit, they could not have been admitted. There (except respondent No. 8)* percentage of marks was far below that of many of the petitioners before us.
19. Initially these seats were reserved for the repeaters i.e., those who have failed in the previous year and who would intend to prosecute their studies in the next year. Shri Anthony submitted that the four reservations in question have been carved our from this quota for repeaters and the students seeking admissions from the general quota cannot make any grievance. We do not think that reservation in favour of the 'Wards of the University employees' can be supported on this ground. If the reserved setae for repeaters are not filled in on account of the absence of such repeater students the unfilled number of seate would be available to the students seeking admission from the general quota. It is in this way that the petitioners are entitled to say that the reservation in question is bad. The result, therefore, is that the four reservations in favour of the 'Wards of the University employees' cannot be allowed to stand.
20. It was contended by Shri Deshpande for some of the respondents that the classification of 'Wards of the University employees' would not be permissible in view of the provisions of S. 7 of the Nagpur University Act, 1974, That section reads as follows : -
'7. (1) No person shall be excluded from any office of the University, or from membership of any of its authorities, bodies or committees or from admission to any degree, disploma, certificate or other academic distinction or course of study, on the ground only of sex, race, creed, class, place of birth, religious belief or profession, or political or other opinion.'
*underlined portion substituted as per High Court order. See FNR p. 182 ed,
The contention is that the University has created a separate class of 'Wards of University employees' and that class cannot be differently treated. It was contended on behalf of the respondents that the scope of S. 7 of the Nagpur University Act, 1973 should not be interpreted in such a limited manner and the main crux of the matter would be as to whether the classification so made is reasonable one and whether it has a nexus with the objects to be achieved. It was also submitted that the petitioners would not be able to contend that S. 7 prohibits each and every classification for different treatment. However, we need not go into this aspect in details as in view of the above discussion. The classification made by the University is bad.
21. The second important question is as in whether the 'sport admission' effected on 6-9-1979 is in any way illegal or irregular. We have already observed that the last date of admission was initially fixed as 1st of July, 1979, It was later on postponed to 10-7-1979, The University authorities had issued a Press Note dated4-9-1979 about this extension to 6-9-1979. We have reproduced that Press Note in paragraph 6 of the judgment. It is on that date that 26 students have been admitted to the degree course. The procedure that was followed for such admission was that a roll call was taken of the applicants who were present in the office and from amongst them, those students who had preferential merits were admitted. The learned advocates appearing on behalf of the petitioner have challenged the 'spot admission' on two grounds, it was contended that such admissions should not be permitted as it has a tendency of discriminating students not on account of merits but only due to the fact as to whether a particular students was or was not present in the office on 6-9-1979. Another contention is that the 'spot admission' if assumed to be premisible. Has been effected in such an irregular manner that it is liable to be struck down. As against this, the respondents contended that the 'spot admission' is permissible and that there is nothing irregular in the process of admissions that took place on 6-9-1979.
22. Shri Anthony for the respondents contended that it is necessary that admissions are completed by the end of the last date of admissions and that this could be done only if the procedure that has been adopted by the University authorities is allowed. In our opinion. There would not be any illegality in the 'spot admission' as such. However, the important aspect is as to whether this 'spot admission' suffers from such type of irregular procedure that there is an obvious discrimination as alleged by the petitioners. After hearing the learned advocates on behalf of both the sides we thin that thee was such an if regularity.
23. That all the remaining admissions will be effected on the last date of admissions has not been previously published or notified either in the prospectus or in any other manner. The Press Note mentioned in paragraph 6 of the judgment has simply stated that permission shall not be granted for admission of students after 6th of Sept., 1979. This is a general Press Note issued by the University for all types of seeking admissions in these vacant seats should remain present in the office. There is also no publication that the admissions will be completed from amongst the students so present in the office on 6-9-1979. AT one stage of the arguments, it was faintly suggested that an individual notice to each of the applicants that the admission will be completed on 6-9-1979 from amongst the students who were present in the office was necessary. But we think that such an individual notice would not be necessary if in the prospectus and the application form this fact has been properly published and at any rate if a wide publication was given in due course of this procedure. The necessary publication in the prospectus should convey to all the applicants as to how the vacant seats would be filled in on the last date. Even the Press Note dated 4-9-1979 has not been published by the University in the newspapers. It is true that the said Press Note has been sent to the newspapers with a request that the contents of the Press Note should be included in the news item. There would, thus be a discretion to the Editors as to whether the publication should be given or not. Our attention is drawn to the fact Bhusawal. It will be very difficult to hold that these students could receive the intimation that the last date of admission was 6th of Sept., 1979, Apart from that even that type of intimation would be insufficient as the Press Note did not say that on 6-9-1979 the vacant seats will be filled in on merits from amongst those students who will be present in the office on that date. It will not be for us to lay down the procedure that is to be adopted by the University authorities for effecting admissions on the last date However, the petitioners are right when they contend that the type of procedure that has been followed in the present cas is highly irregular and has caused discrimination and prejudice to the petitioners. During the arguments of these petitions, the respondents have produced a list of the candidates who have been admitted to the degree course. The percentage of marks obtained by each of them is mentioned against their names and in the remarks column, there is also a statement that the particular student is admitted in the 'Reserved Seat' or in the 'General Seats' A scrutiny of admission with the help of this list would reveal a position which cannot be ignored. For emample, the petitioners in Writ Petitions Nos. 2714/76, 2715/79, 2730/70 and 2716 of 1979 had secured 77%, 77% 77.66 per cent marks. The petitioners in Writ Petitions Nos. 2714/79 and 2715/79 have alleged that by chance they were actually present in the office on 6-9-1979 and even then they have not been admited. Of course the respondents University authorities have denied this allegation. Even if we left out of consideration the question as to whether these two petitioners were present or not, the position is that they along with the other petitioners could not remain present as obviously the university authorities have not given a proper publication that on the last date of admission the vacant seats cannot (can)? Be filled in on merits from amoung those students who would he present in the office on that date. Sarvat Javed who is the petitioner in Writ Petition No. 2716/79 has contended that he belonged to Julaha community which is declared as 'other backward community'. He has secured 75.56% of marks but he was not selected candidate at serial No, 113 one S. S. Gupta (who is O.B.C.) was selected when he had secured only 75.60% marks. It may be noted that at the time of the agruments of these petitiones, the original form of Sarvat Javed was shown to us and it does state that he was seeking selection a candidate belonging to 'other backward' community. But he was not selected. It is true that the contention of the University authorities is that Servant Javed was not present on 6-9-1979 and hence he was not admitted. But the absence of this petitioner as also the other petitioners will have to be considered in the background of the fact that the concerned authorities have not at all properly published the necessity of the presence of the students for seeking 'spot admission' in the seats that were vacant on 6-9-1979.
24. In view of the above discussion, we are satisfied that though the 'sport admission' is permissible in a given state of circumstances, still the principles to be adopted in such admissions should be equitable so as not to cause undue discrimination. In the present case the students who by chance remained present on 6-9-1979 were given favourable discriminatory treatment as against the students who could not even imagine that such presence was necessary for seeking 'spot admission' It is for this reason that the 'spot admission' that has been effected on 6-9-1979 is found by us to be discriminatory. As stated above, it will be for the respondents University authorities to decide as to how the due and wide publication should be given that on the last date of admissions vacant seats would be filled in from amongst those students who would be present on that date. One of the suggestions of the petitioners is that the prospectus as also the applications form should contain such a statement, We are sure that the concerned authority will evolve a good and proper procedure for effecting admissions on the last date of admissions so as not to cause any injustice of discrimination amongst the students. The result is that the petitioners have a just grievance that their claim for admission was not property considered even on the last date of admission i.e. on 6-9-1979.
25. One more important contention deserves to be considered at this stage. As per the prospectus, 3 seats were reserved for 'Kashmir' On the first day of admission i.e. on 20-8-1979, the students at serial Nos. 31 and 32 were selected, In addition, two more students at serial Nos. 93 and 94 were admitted as from Kashmir. These students have obtained 57.11% and 52.60% marks. The contention of the petitioners is that the question of reservation could not exist at the time of 'spot admission' and that the seats from the reserved quota would go to general quota if the applicants for that reserved quota do no appear at the times of the initial admissions. This will be a too broad proposition to be accepted inasmuch as there would not be any impropriety if even at the stage of .sport admission, the principle of reservation has been followed. But the University authorities have admitted four students of Kashmir when the quota was three. Thus the student at serial No. 94 who has secured only 52.60% marks has been wrongly admitted. This wrong admission has a very important bearing particularly when it can be seen that each and every petitioner before us has secured marks more than 52.60% per cent. The net result is that the students who had secured a lesser percentage of marks have been improperly admitted.
26. The select lies shows that a number of students have been admitted as Scheduled Castes, Scheduled Tribes etc. In the reserved quota. It was contended that the prospectus does not indicate that there were any reservations for these categories. However, the application from does contain a column which requires the applicant to show whether he belongs to Scheduled Castes. Scheduled Tribes and Nomadic Tribes etc. Not only that, a certificate to that effect is required to be produced. In addition, on page 1 of the application form there is a blank rectangle at the right hand top corner and the above-mentioned casts or tribe has to be written in that rectangular column if he belongs to any such caste or tribe. In the background of this procedure, the petitioners cannot make a grievance that there was no specific mention about these reservations in the prospectus. At the same time, it would be advisable that the prospectus contains the fact about these reservations.
27. There are certain other contentions that have been urged before us at the time of the arguments, for example the select list shows that on 20-8-1979 23 students. From old Madhya Pradesh were admitted from out of 62 students admitted on that date. The original reservation for old Madhya Pradesh is 14, The University authorities have not produced any data to show as to how the number of seats from old Madhya Pradesh has been increased from 14 to 23 after the increase of the total number from 60 to 82 up to 20-8-1979. In Writ Petition No. 2716/79, an allegation was made that two students. V. N. Deshpande and S. L. Pandharipande were admitted on 6-9-1979 though they were not physically present. The return of the University authorities alleges that such physical presence was absolutely essential. It was also submitted before us that two students who belonged to Pune University have been admitted on a wrong basis though they were from Shivaju University. It was further submitted that the selected students at serial Nos. 11 10, and 24 belonged to 'Maharashtra including Vidarbha; still they were admitted on the basis that they are from old Madhya Pradesh. With respect of this Contention it was submitted on behalf of the respondents that these students have produced a domicile certificate that tey are from old Madhya Pradesh and as such there is no irregularity. We have produced a domicile certificate that they are from old Madhya Pradesh and as such there is no irregularity. We have already discussed that the four seats were reserved for the 'Wards of the University Employees'. The proposal of the Director of the Institutor was approved by the Vice-Chancellor by exercising his powers under S. 11 (4) of the University Act, 1974, That section provides that in case of emergency the Vice-Chancellor can take any decision which any other authority is empowered to take, The decision as taken ultimately goes to the concerned authority for acceptance. The argument of the petitioners is that there was no emergency which required any immediate of urgent action and that the representation of the University employees could have been decided by the concerned authorities in due course. The contentions enumerated in this paragraph, however, need no be gone into in details as the petitioners are entitled to succeed even on the rest of the points which have been discussed and considered by us in this judgment.
28. The net analysis is that the four seats have been improperly admitted as the 'Wards of the University employees' though they have secured lesser percentage of marks as compared with the petitioners. One student at serial No. 94 was admitted in the category of Kashmir though he had less percentage of marks as compared with that of the petitioners. In the process of 'spot admission' certain students who have less percentage of marks as compared to the petitioners in Writ Petitions Nos. 2714/9, 2715/79, 2730/79 and 2716/79 have been admitted. In substance, here is a case where there are at least some instances where the students securing percentage of marks less than each and every petitioner had been wrongly admitted. With this position, it will be necessary to consider as to what just and equitable order should be passed in these petitions.
29. The respondents have contended that the petitions would be bas for non joinder of parties. Some of the students who are alleged to have been wrongly admited, are not made parties. This aspect, however, need not detain us as we propose to make it clear that though some of the students have been improperly admittted, still they have completed their studies for one year. In these peculiar circumstances we do not think that their admissions should be cancelled. As far as the petitioners are concerned they have secured more percentage of marks than at lease some of the admitted candidates. It is true that the petitioners had initially applied for admission to the degree course which was to begin in July/Aug., 1979. One year of that course in already over. These petitions could not be heard expeditiously and hence this position occurred. The petitioners cannot be said to be at fault. The petitioners, have made an alternative prayer that they should be admitted for the course begurning in 1980-81 and in the peculiar circumstances of this case, we think that as the petitioenrs have lost one year for no fauit for them a just order should be passed that the petitioners should be admitted to the degree course beginning in the year 1980-81 if they had preferential claim over the others who were admitted in 1979-80. If improper admisions would not have been made, some of the petitioners might have been admitted. In is not disputed that with the findings that have been recorded by us, the petitioners would have a preferential claim at least over some of the students, admited in the last year. In usual course, we would have issued a writ or direction that the petitioners claim should be considered after omitting those admission which appear to be improper or irregular. In this process some of the petitioners who have preferential claim amongst admission in place of those wrongly admitted. Of course as observed above none of the wrongly admitted students should be ordered to discontinue their studies, We may add that during the course of the arguments Shri Sanyal has made a statement that required number of seats will be kept vacant this year or additional seats will be created for this year if the petitioners succeed in the petitions and if the Court would pass any order in favour of the petitioners. In the peculiar circumstances of the case, it would be in the interest of justice that instead of only some petitioners getting admissions depending upon inter se merits, a provision is made for admitting all the petitioners.
30. The result is that the petitions succeed. Rule is made absolute in each of these petitions. The University authorities including the Director of the L.I.T. Institute are directed to admit each of these petitioners to the degree course beginning from the curricular year 1980-81, if necessary, by creating additional seats for the petitioners. Parties to bear their own costs in these petitions.
31. Rule made absolute.