Jeevan Reddy, J.
1. An issue of considerable importance relating to the procedure to be followed in making admissions to the Engineering Course in Osmania Andhra, Kakatiya and J. N. T. Universities is involved in these appeals. The specific question is: how to apply and operate the rule of reservation in favour of backward classes and others, in the matter of admission to B.E./B.Tech Courses in the Engineering Colleges? Until the current academic year, admissions were made by the individual Universities by themselves. It was found that such a practice was creating several complications, resulting in long delay in finalising the admissions, due to variation in the dates of admission, and duplication of admission in case of some students.. To avoid such delays, it was decided to have a common Entrance and a common Admission Committee for all the Universities in the State, except Sree Venkateswara University. The total number of seats available in the Osmania, Andhra, Kakatiya and J. N. T. Universities is 335, 220, 145 and 540 respectively, the total being 1240. Out of these, 18%, 4% and 25% are reserved in favour of schedule-castes,, scheduled-tribes, and backward-class candidates, respectively. Among the backward-class candidates, the 'B' Group candidates are entitled to 10% and 'A' Group candidates to 7% of the seats.
2. In implementation of the decision aforesaid a common Admission Committee was constituted to synchronise the process of admission in the four institutions. D. C. Lakshminarayana, Professor of Engineering College, Osmania University, Hyderabad, was made the Co-ordinator on behalf of all the Universities, to co-ordinate the work connected with admissions to all the Universities. Another teacher, Prof. G. Lakshminarayana of J. N. T. University, was made the Convener of the Common Entrance Examination Committee, on behalf of these Universities. According to the counter-affidavit filed by the Registrar of Osmania University, a common list of all the eligible candidates was prepared, purely on the basis of merit and, from this list, tentative lists of general category, scheduled castes, scheduled-tribes and backward-class candidates were prepared purely on the basis of merit. Intimations were sent by the Co-ordinator to more candidates than the number of seats available to each category, since it was expected that some candidates, may not pass the qualifying test, while some may not be able to produce genuine certificates and yet others may have joined other courses of education. The interviews were conducted from 16th July to 24th July, 1981, they were meant only for the purpose of scrutinizing the certificates of candidates, and to ascertain their choice of subjects, and not for evaluation of merit. The idea was that the entire process of admission must be over by 24th of July, in all the Universities.
3. In the B.E./B.Tech. course, there are several Branches viz., Civil, Electrical, Mechanical, and Electronics and Communication Equipment, which are common to all the four Universities. Besides the above, the Osmania University has got 25 seats in the Mining Engineering. The Technical/Chemical Engineering Course is available in Osmania, Kakatiya, and Andhra Universities respectively. It so happens that one or two subjects attract a large number of students. We understand the Electronics and Communication Equipment subject was the most coveted one during the current academic year.
4. Article 15 of the Constitution permits reservation in favour of scheduled-castes, scheduled-tribes, as well as backward-class students. Reservation in the matter of admissions to Professional Colleges is governed by G. O. Ms. No. 1793, Education, dated 23-9-1970, as modified in G. O. Ms. No. 996, dated 11-11-1975. Para. 9 of G. O. Ms, No. 1793 reads as follows:-
'9. The Commission has recommended that the reservation of seats should be over and above the seats obtained by the Backward Classes candidates in the open competition. The Government agree that the candidates selected in the open competition need not be counted against the reserved quota; but is not desirable to select candidates in two compartments, one for the general pool and the other for the reserved quota, as this would case hardship to the candidates belonging to the other communities. In order to protect the interests of the backward classes and at the same time without causing prejudice to the interests of the candidates belonging to other communities, the Government direct that the following procedure be adopted for selection of candidates for be reserved seats in the professional courses :
A list of all candidates will be prepared strictly in the order of merit. From this merit list, selections will be made in the order of rotation specified in Annexure II for various faculties.
When no suitable candidate for a seat reserved for any particular group of backward classes, is available, that seat will accrue to the next group in the order or rotation. Only if no suitable candidate should be available in any of the four groups, then that sent will lapse to the general pool'.
By G. O. Ms. No. 996, Education, dated 11-11-1975 the following modification was provided :-
'3. The Government have therefore decided that the rotation system prescribed in para 9 of G. O. Ms. No. 1793 Education, dated 23rd Sept., 1970, and in Annexure II thereof, may be dispensed with and the procedure being followed by the Osmania University and Andhra University shall be adopted for selection of candidates for admission into various faculties. Accordingly, in supersession of the orders in para 9 of G. O. Ms. No. 1793 Education, dated 23-9-1970, the Government direct that the following procedure be followed for selection of candidates for admission into all professional courses, with immediate effect.
(I) In the first instance, candidates should be selected for the general seats (unreserved seats) only, strictly in the order of merit. After this is done, selection should be made for each reserved group separately in the order of merit.
(ii) If sufficient number of candidates are not available to fill up the seats reserved for scheduled-castes, they shall be filled up by suitable candidates, from the schedule-tribes and vice versa'.
5. To the same effect are the Rules of Admission of the University concerned herein. By way of illustration, we may refer to the rule of reservation as stated in the information supplied by the Osmania University, which bears the title 'Extract of Rules of Admission to B. E/B. Tech. Courses (professional Faculties)'. Rule 19 under the subheading 'General' reads as follows :-
'19. Reservations :- (1) A reservation of not less than 14%, 4% and 25% of the total number of seats in each course shall be reserved to the students belonging to Scheduled Castes, Scheduled Tribes and Socially and 'Educationally Backward Classes categories respectively. In the case of Backward Classes the reservation of 25% seats will be allotted as follows for various groups :
Group'A'-7% Group 'B'-10% Group 'C' 1% Group 'D'-7%, Total 25%.
Note ;- (a) In the first instance, candidates will be selected for the general seats (unreserved seats) only strictly in the order of merit. After this is done, selection shall be made for such reserved groups, separately, in the order of merit.
(b) Scheduled Castes/Scheduled Tribes and Backward Class candidates who get seats by merit will not be counted against seats reserved for them and such candidates will go into the list of general seats.
(c) If Sufficient number of candidates are not available to fill up the seats reserved for Scheduled Castes, they shall be filled up by suitable candidates from Scheduled Tribes and vice versa. If be required number of candidates are not available for filling the quota of seats reserved for Scheduled Castes and Scheduled Tribes, they may be filled up by candidates from the general pool on the basis of merit obtained at entrance test.
(d) If sufficient number of candidates of any particular group of Socially and Educationally Backward Class are not available to fill up seats reserved for that group, they may be filled up by suitable candidates in next group in the order of merit by rotation. If no suitable candidate is available in any of the four groups, then the seats shall be filled up from the general pool ... ... ...'
(Note :- The remaining portion of the Rules is omitted as not necessary for the present purpose).
6. Now we shall state as to how actually the rule of reservation was applied and operated, and then we shall examine, whether the procedure followed is consistent with the Government Orders and the aforesaid rule of reservation. Here again, we adopt the facts as stated in the counter-affidavit filed by the Registrar of Osmania University, According to him, each subject in B. E/B/ Tech., is a separate course of study. In other words, Civil Engineering, Electrical Engineering, Electronics and Communication Engineering, Mechanical Engineering, Mining Engineering, Chemical Engineering and Metallurgical Engineering. is each a separate course of study. Since Rule 19 says that the reservation shall be made in each course of study, seats available in each course of study were allocated to General Scheduled Castes, Scheduled Tribes and Backwards Classes respectively. According to this, the seats reserved for Backward Class 'B' group candidates in all the Engineering, Colleges, came to 123. According to the 2nd respondent's affidavit. the break-up of those 123 seats was in the following manner :-
(See Table below)
7. Now, the procedure followed at the interview was the following : 'whenever a candidate was called he was given the information with regard to the availability of seats in various courses in the institution which he applied for. If there was any vacancy in the course which he had opted for, he was admitted accordingly. Such of the backward class or other candidates who were called in the general quota. Were given seats depending upon the availability of seats and their admissions were counted against general quota only. This will be evident from Appendix 'A'. After some admissions were over, it so happened that certain backward class candidates who were called under general quota, opted for certain courses in an institution. But, by that time, the number of sears available for general quota in that course were filled up by candidates with higher rank. Therefore the candidates were told that they can get a seat in other courses under general quota. But when they insisted that they wanted a seat in that particular course alone, they were admitted under the backward classes quota. If the same situation occurs with a candidate of non-reserved category, either he would have to forgo the seat of his first option, or to go for the other courses, in which seats are available. There are six candidates belonging to such category who refused to join the course in which seats were available (Mining), and thereby did not join any course. But, with backward class denied since the seats in the reserved categories are not filled by that time. It is pertinent to note here that the names of such backward class candidates would have been called on the day fixed for their category of reservation. To avoid inconvenience to such candidates they were admitted against reservation quota of their category on the same day. For example, a candidate by name Sri Venkata Ratnam belonging to backward classes 'B' category with rank No. 100 opted for Mechanical Branch in Regional Engineering College, Warangal. The last rank in general quota was 74. When he insisted that he wanted admission in that course alone, he has been giver admission in that course in a seat reserved for backward classes 'B' category. The information with regard to such candidates is furnished in Appendix 'B'. Appendix 'A' referred to in the above extract contains 14 names of backward class candidates, admitted in the general pool, and who were not counted against the reserved backward classes 'B' quota, While Appendix 'B' contains the name of 25 backward class candidates in the general merit list who demanded seats in the backward class 'B' quota of the course desired, and were counted against reserved quota.
8. The writ Petitioners complain that by following the above method, 25 backward class candidates have been denied admission into B. E./B/ Tech., altogether and that, the aforesaid method is contrary to the order of the Government, and the Rules of Admission. This complaint has been rejected by Jayachandra Reddy J. Hence these appeals.
9. The procedure followed by the Universities is premised on a basic assumption, according to which
------------------------------------------------------------------------------------------------------------------------Course of Civil Elec. Mech. Mining Tech. Marine Metal- ECE TotalStudy : Engg. Engg. Engg. Engg. Chem. Engg. lurgy Engg. Engg.------------------------------------------------------------------------------------------------------------------------UniversityJNTU 18 12 12 ... ... ... ... 12 54O. U. 8 6 6 2 6 ... ... 5 34A. U. 5 3 4 ... 6 1 ... 3 22R.C.OWarangal. 3 2 2 ... 1 ... 2 3 13----------------Total 123------------------------------------------------------------------------------------------------------------------------
each of the subjects in B. E./B. Tech. is a separate course of study and, accordingly, they have allocated the seats available in each of such courses of study, among general, scheduled castes, scheduled tribes and backward class candidates, and again among the backward class candidates, between the various groups therein. The procedure followed by them, which we have extracted from the counter-affidavit of the Registrar of Osmaina University, has to be understood in the light of this assumption. The question, however, is : whether this assumption has led to the violation of the rule of reservation?
10. At the outset, we must make it clear that it is for the Universities themselves to decide what is a course of study. They may well say that B. E./B. Tech. is a course of study as a whole. They may as well say as they are now saying that each of the subjects in B. E./B. Tech referred to above, is a course of study by itself. That is a matter to be determined by the Universities themselves, and the Courts have no say in the matter. But, what we are concerned with herein, is to determine whether, by such method, the Universities have violated the rule relating to reservation, and whether following the above method has resulted in deprivation of seats to backward class candidates which they would have got, had the rule of reservation been properly applied? We must emphasize that the quota reserved for, say backward classes represents the minimum, and not the maximum. A backward class candidate may get a seat on his own merit in the general pool. If so, such a candidate cannot be counted against the quota reserved for backward class candidates. This is repeatedly affirmed by the Courts and is also evident from the orders of the Government, as well as Rule 19 of the Rules if Admission published by the Osmania University. Note (a) under Rule 19 (1) says that, in the first instance, candidates will be selected for the general seats (unreserved seats) only. Strictly in the order of merit and that, only thereafter selection shall be made for such reserved groups, separately, again in the order of merit. Even if it so happens that all the general seats are occupied by backward class candidates on account of their merit, still the 25% quota reserved for them cannot be cut down, nor can the candidates getting admission on their own merit in the general pool be counted against the quota reserved for them. Now, nut for the complication arising from the several subjects (which are called 'course of study' by the respondents) in B. E./B. Tech., there would have been no room for any controversy. Take for example, admission to M. B. B. S. In the first instance, the general seats will be filled up strictly in the order of merits. Thereafter, selections, will be made for each of the reserved groups separately, again in the order of merit among each reserved group. But, in the matter of admissions to B. E./B. Tech., there are several subject/courses of study, and some of them are more coveted compared to others. Now, according to the respondents, they wanted to accommodate some backward class candidates by allotting them to the subject/course of study, desired and insisted upon by them and, therefore, they counted such candidates against the seats reserved for backward class candidates. The respondents themselves make it clear that, in the case of a 'general' candidate, no such accommodation is possible; but, because certain seats are reserved for backward class candidates in each subject/course of study, some of the backward class candidates in the general pool could be so accommodated. The respondents point out that, had this not been done, more meritorious among the backward class candidates would have been deprived of their choice, while the less meritorious (backward class candidates getting admission only on account of rule of reservation) would have got admission into the subject/course of study of their choice. Now let us make the implications of this procedure clear. 25 backward class 'B' candidates in the general merit list were thus transferred or relegated, as on may call it to the quota reserved for backward class 'B' candidates, with the result that 25 backward class 'B' candidates including the 18 petitioners herein were totally deprived of admission. In other words, with a view to give 25 backward class candidates in general merit pool the subject of their choice, 25 other backward class 'B' candidates in the reserved list have altogether been deprived of admission. That this result has been deprived of admission. That this result has been brought about is not denied by the counsel for the respondent Universities. But then it is pointed out that had this not been done, a more meritorious backward class 'B' candidate in general merit list would not get the subject of his choice, while a less meritorious candidate (who gets admission only because of the rule of reservation) would have got the subject of his choice.
11. In our opinion, the procedure adopted by the respondent-Universities, and the reasoning and justification behind it, suffer from a basic flaw, which has resulted in violation of the rule relating to reservation. The basic flaw is to call each subject in B. E./B. Tech., as a separate course of study, allocating seats in each of such courses of study to various reserved groups and then allowing the candidates to opt for one or the other subject at the time of interview. If the respondents say that each is a separate course of study and that according to Rule 19, the rule of reservation must be applied to each such course of study, then they must follow that idea to its logical conclusion. In such a case, admissions to each course must be separate, and no question would arise of a candidate choosing or opting for one or the other course at the time of interview. Each candidate would be applying for a particular course for that course of study. No complications would arise if such a clean cut procedure is followed. But that is not what has happened for the current year. The respondents have held one common Entrance Examination for admission to B. E./B. Tech. course. the students were not even asked to indicate their preference with respect to the subject/course of study, in their applications for admission. They were asked to indicate the choice only at the time of interview, and in the case of candidates belonging to backward classes, who were included in the general pool, they were allowed to shift to the reserved quota, with a view to accommodate and respect their choice as to subject/course of study. In these circumstances, it would be idle to contend that each of the subjects is a separate course of study and that, therefore, the reservation must be in each such course of study. The more relevant consequence, for the present purpose, is that by doing so, the rule of reservation has been transferred/relegated to the reserved quota, thereby depriving altogether 25 backward class 'B' candidates, included in the reserved list, of admission to B. E./B/ Tech. Both the orders of the Government, as well as Rile 19 extracted hereinbefore, emphasize to the same effect are the repeated decisions of the Courts that the reserved quota shall be taken up only after exhausting the merit list, which may well include candidates belonging to the groups for whom reservations have been made. It is well settled that such candidates cannot and should not be counted against reserved quota and that the reserved quota is only for those candidates who cannot get admission on their own merits, and can get admissions only by virtue of the rule of reservation. Indeed, a similar question has arisen before a Bench of this Court (of which one of us (Jeevan Reedy, J.) as a member) in Writ Appeals Nos. 569 and 570 of 1979, disposed of on 14-9-1981. The matter pertained to admissions to J. N. T. U., for the academic year 1979-80. There also, the J. N. T. U. followed an identical procedures. The only distinction now pointed out to us is that, in the information to candidates supplied for that academic year, each of the subjects in B. E./B. Tech, was not mentioned as a separate course of study and that, B. E./B. Tech., was referred to as a course of study. Indeed, when it was argued before the learned single Judge, who disposed of the writ petition in the first instance, that each of the subjects is a course of study by itself, the said argument was rejected with reference to the several clauses in the information published and furnished by the University itself. This view of the learned Judge was affirmed by the Bench. It was then observed by the Bench :
'Reading the above G. Os. together, it is clear that the University has to first prepare a merit list of all the candidates who have passed the Entrance Examination. From this list, the candidates as against the open quota should be selected in the first instance without reference to the fact whether any of the candidates getting the seats thereunder belong to any of the reserved categories. only after the open seats are so filled up, they should take up the question of filling up the reserved seats. 25 per cent of the seats reserved for backward class candidates should then have to be filled up from among the candidates belonging to backward classes in the order of their merit and to extent of the number of seats reserved for them. Similarly, the seats reserved for Scheduled Castes and Scheduled Tribes and other categories have also to be filled. After the different reserved categories are so filled up, an integrated merit list has to be prepared of all the selected candidates, in accordance with the marks obtained by them. In such a case, it may very well happen that some of the students belonging to backward classes or scheduled castes or scheduled tribes get some seats, on the basis of their merit, in open pool. If such a thing happens, they should not be counted again towards the quota reserved for backward classes or scheduled castes or scheduled tribes as the case may ne ... ... ...'.
We reaffirm the above statement of law, and hold that, having regard to the orders of the Government and the rules of admission applicable for the academic year 1981-82, the following rules should have been observed by the respondent-Universities in making the admissions : (i) the rule of reservation ought to have been applied to the B. E./B. Tech. course as such, i.e., to the total number of seats (1240), and not separately to each subject, which the respondents call a 'course of study'; (ii) the general pool candidates, to the extent of the seats available for general pool, should have been called first, in the order of merit, irrespective of the fact whether a candidate therein belongs to a reserved or non-reserved group. They should have been given the subject/course of their choice, subject to the availability of seats. There could be no question of any candidate from this general pool being transferred to, or counted against the reserved quota. In other words, in the matter of choice, or course or study/subject, merit is given priority; (iii) after the general pool seats are filled up, the reserved lists ought to have been taken up. Since choice of subject/course of study may be relevant even at this stage, the proper and equitable course would be to prepare a combined merit list of the reserved groups, and call them in that order, and allot them the subject of their choice to the extent of availability of seats in each subject. Here again, merit counts in the matter of choice of subject/course of study. What must, however, be ensured in doing this, is that candidates from each reserved group set their full quota of reserve seats. (Of course, if the number of candidates available is less than their number of seats reserved for a particular group, the procedure prescribed in Notes (c) and (d) to Rule 19 shall have to be followed).
12. Had the above principles been followed, there would have been no occasion where a backward class candidate, getting admission on his own merit in the general pool, would have been unable to get the subject/course of study of his choice, while a less meritorious candidate belonging to backward classes and who gets admission only because of the rule of reservation, would have got the subject/course of study of his choice. According to the above principles, merit is decisive in the matter of choice; and no question would arise of any backward class candidate in the general pool being transferred to, or counted against the reserved quota. The above principles would also have ensured that each reserved group gets it s full quota of seats, as per the rule of reservation. But then, it is reiterated by the learned counsel for the respondents that, by following these principles, some of the backward class candidates could not have been given the subject of their choice, and they would have been forced either to study a subject other than that of their choice or to forgo the admission altogether. As we have already pointed out, no such consideration can be shown to a candidate in the general pool, not belonging to a reserved group. There is no reason why such consideration should be shown to a backward class candidate in the general pool. All the candidates in the general pool should be treated alike, irrespective of the fact whether they belong to a reserved group, or not. Secondly, in the name of respecting the choice of a backward class candidate in the general pool, the Universities are depriving an equal number of backward class candidates from admission to B. E/B. Tech, altogether. This is certainly not a desirable thing, apart from its illegality. It is better, in the larger interests of the backward classes, that more number from among them get admission to B. E/B. Tech., than to cut down the number of students getting admission and respect the wishes of some of them, in the matter of choice of subject/course of study.
13. We must reiterate that it is not for this Court to prescribe the procedure which the Universities must follow in the matter of admitting the students to various courses, nor do we seek to dictated as to how they should determine a course of study. We are taking the orders of the Government and the Rules of Admission published by the Universities themselves, as they stand, and our only enquiry has been whether the procedure adopted by the Universities has violated the rule of reservation. We find that it has so violated. The 18 petitioners are among the 25 candidates who have been deprived of admission to B. E./B. Tech. altogether, in the name of, and for the sake of accommodating the backward class candidates in the general pool, in the matter of subject/course of study, The petitioners are, therefore, entitled to admission into B. E./B. Tech. course. It is represented to us that all the seats have already been filled up. But them, it should not be difficult for the four Universities to accommodate these 18 candidates. What subject should be given to them and to which college they should be allotted, is a matter for the Universities themselves to decide, having regard to their circumstances and keeping in view principle (iii), stated by us hereinbefore.
14. Writ appeal are accordingly allowed with the above direction. There shall be no order as to costs. The petitioners (appellants) shall be admitted to B. E./B. Tech. course in the respondent-Universities, forthwith.
15. The learned counsel for the respondents make an oral request for leave to appeal to the Supreme Court of India. However, this case does not involve a substantial question of general importance, which in our opinion requires to be considered by the Supreme Court. Oral Leave, therefore, is rejected.
16. Writ appeals allowed.