Prem Chand Jain, Actg.C.J.
1. This judgment of ours would dispose of this petition and the other connected petitions--C. W. Ps. Nos. 4811, 4825, 4845, 4846 and 4868 of 1984, as common question of law arises in all these petitions. However, in the petitions in which an additional question arises for decision, the same shall be dealt with separately.
2. In order to appreciate the controversy, certain salient features from this petition may be noticed:
Gurjit Singh Randhawa, petitioner, is an outstanding National level sportsman and has been categorised as 'B' grade by the Department of Sports, Punjab. For the session 1983-84, the Government of Punjab, for the purpose of admission to the MBBS/BDS courses in the State Medical Dental Colleges in Punjab (at Amritsar, Patiala and Faridkot), reserved 2% seats for outstanding sportsmen. These seats were to be filled up from amongst sportsmen /women who obtained the minimum qualifying marks in the competitive Entrance Examination (called PMT test). However, inter se merit of candidates who qualified the PMT test was to be determined on the basis of their grading by the Sports Department.
3. It is averred that for the academic session 1984, there were a total of 350 seats in the Medical Colleges of Amritsar, Patiala and Faridkot. For the purpose of admissions, a PMT test was notified in the Gazette on 3rd Oct. 1984. As per this Gazette Notification, the petitioner secured 157.50 marks out of 300 and was placed at Serial No. 331 in the order of merit. It is next pleaded that for the purpose of admission to the Colleges after the PMT test, the eligibility for admission to the MBBS/BDS Courses is as given in the prospectus and the relevant portion of the same read as under :--
'1. Eligibility for Admission to MBBS/BDS Courses :
a) Admission shall be given on the basis of the relevant merit of candidates determined on the result of the competitive entrance examination. In the case of the reserved seats relative merit of the candidates shall be determined within each Category of reservation except that in the Category of Sportsmen/Sportswomen, merit shall be determined as follows :--
Weightage will be added to the marks secured in the admission test in respect of sportsment / sportswomen based upon their sports gradation as mentioned below :--
I) A Grade--8% of the marks secured in the written test.
ii) B Grade--5% of the marks secured in the written test.
iii) C Grade--3% of the marks secured in the written test.
iv) D Grade--2% of the marks secured in the written test.
2. Inter Se merit for admission be based upon the aggregate of marks obtained in pre admission competitive test and the marks added as weightage. In the category of Children / Widows of Defence Personnel, candidates of sub-category viii(b) as given in para 3(c) infra, shall be admitted only if eligible candidates of sub-category viii(a) are not available. A candidate, however, must secure a minimum of 50 per cent marks in the competitive entrance examination to qualify for the admission. However, candidate belonging to the Scheduled Castes / Schduled Tribes, Sportsmen / Sportswomen, Children / Grand Children of the Political sufferes and Handicapped categories shall be eligible only if they secure minimum of 25% marks in the entrance examination.
Note :--Seats left vacant in any reserve category, owing to non-availability of eligible candidates may be filled from the eligible candidates belonging to general category'.
Regarding the reservation of the seats, the relevant portion of the prospectus reads as under :
'Seats are reserved to the categories noted below and to the extent mentioned against each. I) Scheduled Castes / Scheduled Tribes 25%ii) Backward Classes 5%iii) Backward Area 2%iv) Sportsmen./ Women 2%v) Nominees of the Central / State Government 7%vi) Border Area 2%vii) Children / Grand Children of Political Sufferers 2%viii) (a) Children / Widows of defence personnel who arekilled or disabled to the extent of 50% or more in war 2%(b) Children of the serving / ex-servicemen.iv) Handicapped candidates (for MBBS course only) 1%
4. According to the petitioner, on the basis of his 'B' grade Sports certificate, he was to be given 5% of the marks secured in the written test as advertised weightage. Accordingly, by adding the weightage marks the petitioner secures 165.37 marks out of 300, thereby bringing him above / at par with persons at serial Nos. 221 to 226 the order of merit. Now what is claimed in this petition is that on the basis of the marks of the petitioner after including 5% weightage marks he is entitled to secure admission, but the Authorities are not giving him admission in the wake of the change in the policy, which appeared as a new-item in the 'daily Tribune' dt. 16th Oct. 1984, a copy Annexure P-1 to the petition. The State has attached the copy of the decision with its return, as Annexure R-1 and its relevant portion reads as under :
'2. According to the existing system, admissions are first made against the open category seats and reserve category seats are filled from the candidates not admitted against general category seats. Government received some representations pointing out anomalies in the admissions as a result of this. The matter also came up for discussion in one of the meetings of the Director, Research and Medical Education and the Principals of the three Medical Colleges held with the Secretary Health, Punjab.
3. The matter has been considered by the Government and it has been decided that from the next academic session, i.e. 1984-1985 admissions shall first be made against reserved category seats and thereafter against open merit seats'.
It is alleged in the petition that in the wake of the policy decision, Annex P-1, the petitioner is not being given admission, and, hence, the present petition has been filed, praying for the quashing of the decision, Annex.P-1, and for a direction to the respondents to consider the claim of the petitioner for admission to MBBS/BDS Courses.
5. The petition came up for motion hearing on 23rd Oct. 1984, when the Bench passed the following order :
'It is inter alia contended by the learned counsel that the petitioner was entitled to 5 per cent extra marks on account of his being a B Grade Sportsman but the said marks have not been given to him while considering his merit in the open category. According to him, if 5 per cent marks are added to his marks, then he is entitled to be selected. Notice of motion for 30th Oct. 1984 Dasti'.
5A. In obedience to the notice of motion issued, the State filed its written statement, in which it is admitted that the petitioner had secured approximately 67% marks in the Pre-Medical test and that he possesses a 'B' grade certificate. It is further averred that the total marks secured after addition of weightage are to be compared with the performance of other candidates claiming admission on the basis of their performance in the field of sports and it cannot be compared with the performance of the candidates claiming admission from the general category. What is emphasised in the written statement is that the weightage is meant exclusively for determine the inter se grading of the candidates who claim admission on the basis of the performance in the field of sports, and that after adding weightage, the petitioner cannot claim comparison with candidates in general category. It is also averred that the practice of first making admissions against open category seats and then against reserved category seats resulted in certain anomalies, i.e. the reserved category candidates admitted against open category candidates were not counted in the reserved category and this practice resulted in the admission of reserved category candidates over and above the percentages reserved for them. For this and some other reasons the Government policy was reviewed and it was decided that the admissions should first be made to the reserved category and thereafter to the open categories. According to this policy, all reserved categories get the representation, according to the seats reserved for them and other anomalies discussed in the written statement are also avoided. It is also averred that persons belonging to sports category cannot add weightage to their own score for being compared with the performance of general category. The weightage is meant exclusively for determining the inter se grading of candidates from sports category. The decision of the Government for filling up reserved seats first is also correct because the earlier practice had resulted in utilization of more than 50% seats by the reserved categories, which was violative of the instructions on this issue. The action of the Government in conducting the admission on the basis of laid down policy is legal and constitutional.
6. After the filing of the written statement, the matter was heard by the Motion Bench on 7th Nov. 1984, Finding the importance of the question, the writ petitions were admitted to hearing by a Full Bench. That is how we are seized of the matter.
7. Mr. J. L. Gupta, Senior Advocate, learned counsel appearing for the petitioneer, whose contentions were adopted by the other learned counsel, submitted that general is the rule, while reservation is an exception, that after taking PMT test, a merit list is to be prepared and from that merit list, first admission against open category has to be made and thereafter admission of the reserved category candidates according to the percentage of reservation has to be made. In support of his contention, the learned counsel placed reliance on a judgment of the Kerala High Court in Jacob Mathew v. State of Kerala, Air 1964 Ker 39 and a judgment of the Supreme Court in State of Andh Pra v. U. S. V. Balaram, AIR 1972 SC 1375.
8. After giving our thoughtful consideration to the entire matter, we find no merit in his contention. It may be observed at the outset that the new policy contained in Annex. R-1 is not the subject-matter of challenge in this petition, with the result that it is on the basis of this policy that the admission to the Medical Colleges has to be made. A bare perusal of the relevant portion of this policy, which has been reproduced above, clearly indicates that admissions shall first be made against the reserved category seats and thereafter against open merit seats. In the wake of this definite policy, the legality of which has not been challenged before us, we fail to understand as to how and on what basis the learned counsel for the petitioner is contending that general is the rule while reservation is an exception. If the Government has decided to first make admissions to the reserved category and thereafter to the open category, then it is too late in the day for the petitioner to plead that the general category seats have to be filled first after preparing the merit list. The authorities on which the learned counsel has placed reliance, do not help the petitioners at all; rather these authorities go against them. In the Supreme Court judgment in U. S. V. Balaram's case (AIR 1972 SC 1375) (supra), the observations on which the learned counsel had placed reliance, read as under :
'There was a contention raised by Mr. Tarkunde, learned counsel for the respondents, that the total number of seats that could be given to the candidates belonging to the Backward Classes cannot exceed the percentage of reservation made in their favour. That is according to the learned counsel, if more than the reserved quota amongst the Backward Classes candidates, have secured seats on merit, there can be no further selection of candidates from the reserved group.
No doubt our attention was drawn to a decision of the Kerala High Court, which has held that the reservations is irrespective of some of the candidates belonging to the Backward Classes, getting admission on their own merit. The Andhra Pradesh High Court has taken a slightly different view. If a situation arises wherein the candidates belonging to the groups included in the list of Backward Classes, are able to obtain more seats on the basis of their own merit, we can only state that it is the duty of the Government to review the question of further reservation of seats for such groups. This has to be emphasised because the Government should not act on the basis that once a class is considered as a backward class it should continue to be backward for all time. If once a class appears to have reached a stage of progress, from which it could be safely inferred that no further protection is necessary, the State will do well to review such instances and suitably revise the list of Backward Classes. In fact it was noticed by this Court in AIR 1971 SC 2303 that candidates of Backward Classes had secured nearly 50% of seats in the general pool. On this ground this Court did not hold that the further reservation made for the Backward Classes is invalid. On the other hand, it was held :
'The fact that candidates of backward classes have secured above 50% of the seats in the general pool does show that the time has come for a de novo comprehensive examination of the question. It must be remembered that the Government's decision in this regard is open to Judicial review'.
It is on the basis of these observations that the learned counsel had stressed his point that the selection has to be first made to the general category and if as result thereof the quota of the reserved category exceeds, then the benefit should go to the latter. But in this very judgment, as is evident from the observations, the Supreme Court has observed that it is the duty of the State Government to review the question of reservation and in the instant case, as is evident from Annex., R-1, the State Government has reviewed its policy and has laid down a definite guideline as to how admission to the reserved category is to be made. The State Government has reviewed its decision with perfect clarity and the same having not been challenged, the petitioner cannot successfully plead that the admission should first be made to the general category and thereafter to the reserved categories. The decision of the Kerala High Court in Jacob Mathew's case (Air 1964 Ker 39) (supra) again is not helpful to the petitioner for this very reason. As earlier observed a definite policy decision has been taken by the Government as to how and in what manner admissions are to be made to the reserved category and if admissions are being made in accordance with that policy, then the petitioners cannot have any justifiable grouse entitling them to any relief from this Court in exercise of its extraordinary jurisdiction.
9. Faced with this situation, it was next contended by Mr. J. L. Gupta, learned counsel, that sportsmen / sportswomen constitute a separate class and that their merit has to be determined after giving weightage as stipulated in the prospectus. In short, what was sought to be argued by Mr. Gupta was, that the weightage has still to be added to the score of the sportsmen / sportswomen for being compared with the performance of the general category. We are afraid that again the contention of the learned counsel is wholly devoid of force. According to the prospectus, the relevant portion of which has been reproduced above, the weightage is added to the marks secured in the admission test for the purpose of determining the relative merit of the candidates in the reserved category seats, but this weightage cannot be considered while determine the merit, vis-a-vis the general category students. The candidate who is a sportsman cannot have double benefit, i.e. that after getting weightage he first competes for the reserved category seats and thereafter again takes benefit in the general category. Thus, the benefit of weightage can be availed of by a candidate only when his case is to be considered for the reserved category; otherwise, his marks without weightage shall be taken into consideration for determining his merit in the general category. It appears that candidates who wish to take benefit of the reservation are opening their mouth too wide and are making an effort to have double benefit, i.e. one of reservation and the other to compete in the general category by taking benefit of weightage. This, in our view, is neither permissible nor justified.
10. At this stage, reference be made to an unreported judgment of a learned single Judge of this Court in C. W. P. No. 4660 of 1984 Miss, Maninder Kaur v. State of Punjab, decided on 6th November, 1984 : (Reported in AIR 1985 Punj & Har 46), the correctness of which was challenged by the learned counsel for the State. On the consideration of that judgment, we find that in the circumstances of this case; it is not necessary to express any opinion regarding the correctness of the view in Miss. Maninder Kaur's case (supra), as whatever view one way or the other is taken in this case, the same would have no bearing on the merits of these petitions. In this situation we refrain from expressing any opinion one way or the other on the decision in Miss. Maninder Kaur's case (supra).
11. Now I shall deal with the facts of the case in C. W. P. No. 4825 of 1984 filed by Shalini Mittal, as in that case, Shri Kuldip Singh, Senior Advocate, had urged some additional grounds. But before adverting to these grounds, it would be appropriate if some salient features of that case are noticed :
12. Shalini Mittal passed Pre-Engineering Examination of the Punjab University held in July/August, 1984, securing total marks 539/650 including optional. She had secured 492 marks out of 600 in the four subjects, i.e. Physics, Chemistry, Mathematics and English. The petitioner applied for admission to the B. E. Engineering Course and in the form filled the choice of branches was given as follows :-
13. After the interview, which was held on 28th Sept. 1984, the petitioner was given admission in the Electrical Branch, the 2nd choice of the petitioner instead of 1st choice, i.e. Electronics to which she was entitled. It is averred in the petition that respondent No. 3 has been illegally given weightage of 3% marks for having obtained Ist position at the State level in sports. It has also been pleaded that students at Sr. Nos. 1 and 2 in the Chandigarh quota were qualified to be admitted in the general pool as they obtained more marks than the students Nos. 6 and 7 considered under general pool (respondents 5 and 6). And in this manner, the petitioner has been illegally deprived of her first choice of Electronics.
14. The petition has been contested on behalf of the respondents. In the written statement filed by the Principal, it is averred that as per merit of the petitioner, no seat was available in the Electronics and that she was rightly been admitted in Electrical in accordance with the rules. In the written statement filed on behalf of respondents 3, it is stated that weightage of 3% marks has rightly been given.
15. We have Mr. Kuldip Singh, Senior Advocate learned counsel, on the additional points and find no merit in his submission.
16. It was contended by the learned counsel that in the prospectus it is stated that the Chandigarh Pre-Engineering and B.Sc. candidates will not be eligible for being considered for admission against the general pool seats, with the result that even if a candidate is quite high in the merit list, still he or she would not be considered against the general pool seat. According to the learned counsel, this provision which deprives a candidate on the basis of his merit, admission in the general pool is wholly arbitrary and liable to be struck down. On consideration of the entire matter, in the light of the facts stated in the petition, it may straightway be observed that this contention of the learned counsel is liable to be rejected outrightly, as the petitioner does not figure anywhere in the merit list of the general pool candidates.
17. It was next contended that respondent 3 was not entitled to any weightage on the basis of the certificate produced by her, as that certificate pertains to the year 1981, when she was in IX / X Class. In the alternative, it was also contended by the learned counsel that even if the certificate produced by respondent 3 is taken into consideration, then that certificate reveals that she had only participated in the National Games and as she had not obtained any position, no weightage could be given to her. The learned counsel further submitted that from the certificate produced by respondent No. 3, it could not be inferred that respondent No. 3 had participated at the State level. In support of his contention, the learned counsel drew our attention to the averments made in ground (b) of Para 8 of the petition, which read as under :
'When basis of admission (i.e. minimum qualification) is Pre-Engineering Examination then weightage for sports can also be allowed under law only on the basis of position obtained at that level i.e. Pre-Engineering. So the certificate produced by Respondent No. 3 does not entitle her to the weightage given to her. If that weightage is deducted from her merit, then she falls far below than the petitioner. It is further added that not only the certificate produced by her is not of the Pre-Engineering level, but is also the School level and pertains to the year 1981 (i.e. 9th/10 Class). If no period is to be taken then it seems if a candidate had played sometime in Primary class and thereafter has not played the game, he would be given weightage. This appears to be against the natural justice also particularly when the weightage is added in the marks obtained in Pre-Engg. Examination.
The rule makes it clear that the weightage is given only to a candidate who obtained Ist, 2nd and 3rd positions in the Sports. The certificate produced by the respondent 3 reveals that she participated in the National games. She had only participated in the National games. She had only participated (i.e. did not obtain any position-1st, 2nd or 3rd) which merits no weightage. As regards winner in Chandigarh it does not disclose at what level she was winner. Whether State, Distt. or only School, Sector level. The certificate has not also been issued by the Competent Authority, i.e. Director of Sports'.
18. On the other hand, Mr. P. S. Bajwa, learned counsel, submitted that respondent 3 was rightly allowed the weightage on the basis of the certificate granted by the Competent authority, as respondent 3 had participated in the games at the State level. In support of his contention, the learned counsel drew our attention to the reply given in para 7 of the written statement, which reads as under :-
'As stated in para 7(I), it is admitted that the answering-respondent obtained 486 marks out of 600 in four subjects considered for admission, and after getting advantage of 3% for sports, her total rose to 500.526 marks, which is more than that of the petitioner.
A certificate was issued in the form required by the Engineering College authorities by the Directorate of Sports Chandigarh Administration, stating that the answering-respondent had obtained Ist position in a state level tournament (Badminton) during the year 1981-82. Additional information is supplied in this certificate to the effect that the respondent participated in the XXVII National School Games (Winter Meet) held from 28-12-1981 to 3-1-1982. The selection for the National Meet was made on the basis of her performance in the tournament mentioned earlier and training for the National was imparted in a coaching camp organised by the Chandigarh Administration. The 3% advantage that the respondent got was because of her first position at the State level. This certificate was issued after scrutinizing the achievements of the respondent as reflected in Sports Gradation Certificate issued by the Directorate of Sports Chandigarh Administration, Certificate of Participation XXVII National School Games (Winter Meet), Pune, 1981-82 and Certificate of Merit for the Inter School Tournament held from 28th Oct, 1981 to 6th November, 1981 issued by the Education Department, Chandigarh Administration attested copies of which are attached to the application form submitted to the Punjab Engineering College, Chandigarh. She was also interviewed. It may also be added that the respondent was the winner of Inter School Tournament in Badminton (Jr.) 1980-81 and runner up in Inter Zonal Tournament 1979-80 both held by the Chandigarh Administration.
It is admitted that the certificate was signed by the Joint Director Sports, Chandigarh Administration, who had been empowered by the Director Sport to do so vide his letter as Annexure R-1.
Regarding the objection taken by the petitioner that that the sports achievement should pertain to the year in which the qualifying examination was taken, attention is drawn to the admission notice of the Punjab Engineering College published in 'The Tribune' of 24 September, 1984, which is as Annexure R-2. It clearly states that the achievement must pertain to a period within the last three years, though the prospectus makes no mention of the period'.
19. After giving our thoughtful consideration to the entire matter, again we find no merit in the contentions of the learned counsel for the petitioner. From the averments made in para 7 of the written statement, which has been reproduced above, it is quite evident that respondent No. 3 had obtained !st position in a State level tournament and this has been so certified by the Joint Director, Sports, who had been authorised to sign the Sports Gradation Certificates. The objection that the certificate given to respondent 3 for her State level performance, when she was in the school could not be taken into consideration, is not tenable in view of the admission Notice, which was published in the Tribune of 24th Sept. 1984, a copy of which is attached with the written statement, as Annexure R-2. The relevant clause from that notice reads as under :
'Candidates seeking Sports Credit, must produce a certificate from the Director of Sports of concerned State indicating clearly one of the grades : A (Olympic), B (National), C(State) and D (District) level and the merit position: Ist, 2nd or 3rd during the last three years only. Certificates not mentioning either grade or merit position shall not be given any credit'.
20. A bare reading of the aforesaid clause would show that a candidate could produce a certificate, which he or she may have obtained during the last three years only, meaning thereby that a candidate could take benefit of such a certificate for three years. In the instant case, the certificate was given to respondent No.3 for her participation in the year 1981-82 and under the aforesaid clause the benefit of the said certificate could be availed for the admission in the year 1984. The petitioner has failed to make out that the weightage was wrongly given to respondent No. 3.
21. No other point was urged by Mr. Kudip Singh, Senior Advocate, learned counsel for the petitioner.
22. The learned counsel for the petitioners in C. W. P. Nos. 4811, 4845, 4846 and 4868 of 1984, adopted the contentions of Mr. J. L. Gupta, learned Senior Advocate, on Point No. 1, as in those writ petitions only Point No. 1 arises for consideration.
23. For the reasons recorded above, we find no merit in these petitions, and, consequently, dismiss the same, but make no order as to costs.
D.S. Tewatia, J.
24. I agree.
G.C. Mital, J.
25. I also agree.
26. Petitions dismissed.