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Shashi Parbha and ors. Vs. Punjab University and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 4204 of 1983
Judge
Reported inAIR1984P& H434
ActsConstitution of India - Article 14
AppellantShashi Parbha and ors.
RespondentPunjab University and ors.
Cases ReferredKumari Chitra Ghosh v. Union of India
Excerpt:
.....those who are unjustly excluded, i find the petitioners have a better claim than the candidates who have been wrongly admitted by the university authorities. 8. i, therefore, while allowing the petition, direct the university authorities, including the vice chancellor, to add five more seats to the course to accommodate the petitioners and not to debar them from taking the examination on the ground that they failed to attend the requisite number of lectures......is, aug. 9, 1983, the petitioners made a representation to the dean of university instructions (vice chancellor of the university being away to a foreign country) against this excessive and arbitrary reservation of seats to the detriment of the open merit candidates. in this representation they also highlighted the fact that in accordance with the university grants commission's directions, master of library science was the minimum qualification for employment as a librarian and the above noted reservation completely obliterated their chances of recruitment to those posts. no action, however, was taken on this representation. again on aug. 27, 1983, one of the petitioners represented to the vice chancellor, who by that time had returned from his foreign trip, that as in the past, the.....
Judgment:

1. The petitioners impugn the action of the respondent University in not granting admission to them to the Master of Lihrary Science Course commenced with effect from l6th Aug. 1983. The facts pleaded by them are as follows.

2. They passed the Bachelor of Library Science Course from this University, i.e., Punjab University, Chandigarh, respectively securing 66.87%, 66.70% and 63.75% marks. After giving the weightage of marks admissible to the students who had graduated from this University, their merit as per the admission of the University authorities, comes to 74.12%, 73.37% and 73.5% respectively. The University vide its advertisement dt. June 17, 1983, published in the Tribune (Annexure P. 1) invited applications for admission to seventeen seats in the above noted course, by July 6, 1983. It was mentioned in this advertisement that certain number of seats had been reserved in favour of various categories of candidates, the details of which are as follows:--

i) 20% for Scheduled Castes.

ii) 5% for Scheduled Tribes.

iii) 5% for Backward Classes.

iv) 3% for physically handicapped.

v) 5% for outstanding sportsmen and

vi) Up to 5'%, for the sons/daughters/wives of Military Personnel who have been incapacitated or died during the war or incapacitated military personnel themselves.

The petitioners admittedly filed their applications complete in all respects within the stipulated time for admission to the open merit seats. They were called and interviewed on Aug. 9, 1983. However, on that day to their utter dismay and disappointment they learnt that out of the total number of seventeen seats, fourteen had been reserved in one form or the other and only three seats were available to the open merit candidates. As per the admission of the respondent authorities, the petitioners were respectively placed at Nos. 8, 9 and 10 in the open merit category of candidates. The reason disclosed to the petitioners for the reduction of the open merit seats to three was that in addition to the reservation of seven seats in terms of the advertisement Annexure P. 1, seven more seats had been reserved or allocated to the staff of the university libraries and for working librarians from other universities. On that very day, that is, Aug. 9, 1983, the petitioners made a representation to the Dean of University Instructions (Vice Chancellor of the University being away to a foreign country) against this excessive and arbitrary reservation of seats to the detriment of the open merit candidates. In this representation they also highlighted the fact that in accordance with the University Grants Commission's directions, Master of Library Science was the minimum qualification for employment as a Librarian and the above noted reservation completely obliterated their chances of recruitment to those posts. No action, however, was taken on this representation. Again on Aug. 27, 1983, one of the petitioners represented to the Vice Chancellor, who by that time had returned from his foreign trip, that as in the past, the number of seats in the Master of Library Science Course should be raised to twenty-four and thereby seven more seats should be made available to the open merit candidates. Again no action was taken on this representation.

3. The admitted case further is that out of the seven seats meant for the staff of the University libraries, only five candidates joined and thus two more seats were put in the general pool. Since one of the candidates, Vinod Kumar, admitted on merit, failed to deposit the fee and to join the course, that seat was also made available to the general category candidate. Thus in all five candidates up to No. 6 of the open merit list have been admitted to the course.

4. The star argument of the learned counsel for the petitioners is that they being at Nos. 8, 9 and 10 of the merit list, would have certainly been admitted to the course had the University authorities not reserved more than 70% of the seats (seven for the categories specified in Annexure P. 1 plus five for the staff of the University libraries) in favour of those categories. As against this, the case of the University in a nut shell is that specification or earmarking of the seats in favour of the staff of the University libraries does not amount to any reservation as according to those authorities it only amounts to specifying the source of admission to the course and it is well within their jurisdiction to specify the source for purposes of admission. It is highlighted on their behalf in the light of the observations of their Lordships of the Supreme Court in D. N. Chanchala v. State of Mysore, AIR 1971 SC 1762, that it is within the competence of these authorities to lay down the sources from which the selection for admission is to be made and such a specification of the source does not amount to reservation in terms of Art. 15 of the Constitution. It is also pointed out in the written statement filed by the respondent authorities that though in the past there have been twenty-four seats in this course yet since there are 'very few Universities in the country and, none except the Punjab University in States of Punjab, Haryana, Himachal Pradesh and Jammu & Kashmir where M. Lib. Sc. course is offered, the Vice Chancellor often receives applications of candidates sponsored by State Governments and other Universities for admission to M. Lib. Sc. Course and he decides to sanction an additional seat (as in other departments and affiliated colleges) after considering such case on merits. Such an authority was delegated to the Vice Chancellor by the Syndicate of the University at its meeting held on July 25, 1981.' It is again the admitted position as per the statement of Dr. U. K. Tikku, Lecturer and Chairman of Department of Library Science, Punjab University Chandigarh, recorded by the Motion Bench on Sept. 21, 1983 that this year too two more candidates over and above the fixed number of seventeen seats have been admitted on 1st and 2nd Sept. l983 against the two additional seats created by the Vice Chancellor. As per Dr. Tikku these two seats were sanctioned on individual basis. One seat has been given to a Manipur candidate which is a backward area and the other seat has been given to a working librarian in the Punjab Agricultural University as per the recommendation of the Vice Chancellor of that University. In this statement he, however, expressed his ignorance about the fact as to whether the percentage of marks of these candidates was less than that of the petitioners. He also admitted that this year too the Vice Chancellor has been authorised by the Syndicate vide its Resolution No. 40(ii) passed in the meeting held on Sept. 10, 1983 to add five more seats under the 'general category' for Library Science Course. This resolution (copy placed on record) reads as follows:--

'40(ii). The Vice Chancellor stated that he would add five more seats under the 'General Category' for M. Lib. Sc. Course in the Department of Library Science of the Punjab University and these seats would be filled in purely on the basis of merit. This was agreed to.'

When it was put to the learned counsel for the University as to why the Vice Chancellor should be shy of adding more seats to the course in the tight of the above noted resolution, he explained that the Vice Chancellor has yet to work out the various formalities for creating these seats and as a matter of fact he only intends to add these seats with effect from the next year and not this year. It deserves to be mentioned here that the Motion Bench vide its interim order dated Sept. 22, 1983, granted admission to the petitioners on provisional basis and the operative part of this order reads as follows:--

'Since, it is a question of admission and the syndicate has approved the proposal of the Vice Chancellor to add five more seats, the respondent University is directed to give provisional admission to the petitioners which would be subject to the decision of this writ petition or any interim order that may be passed in this regard.'

Having given my thoughtful consideration to the entire matter in the light of the submission of the learned counsel for the parties, I feel the petitioners must succeed.

5. As is indicated by the above noted detailed narration of facts and the respective pleas of the parties, the primary question that needs to be settled is as to whether the University authorities can justifiably reserve more than 70% of seats (12 out of 17) in the course in question. If the two admissions made on Ist and 2nd of Sept. 1983 are also counted towards the reserved category seats, as these to my mind should be, than the total reservation comes to about 74%. Before, however, accepting this percentage as the correct percentage of reserved seats the argument of the learned counsel for the respondent-authorities to the effect that the earmarking of seats in favour of the staff of the University libraries, does not amount to any reservation and is rather only a specification of a source of admission, deserves to be dealt with. As already indicated, in this regard the primary reliance is sought on the following observations of their Lordships of the Supreme Court in D. N. Chanchala'c case (AIR 1971 SC 1762) (supra):--

'The Government is entitled to lay down sources from which selection for admission would be made. A provision laying down such sources is strictly speaking not a reservation. It is not a reservation as understood by Art. 15 against which objection can be taken on the ground that it is excessive. The reservation as contemplated by Art. 15 is the one which is made under R. 5. Under that rule, 15% reservation is for persons belonging to the Scheduled Castes, 3% for Scheduled Tribes and 30% for socially and educationally backward classes, that is to say, 48% in al1.......'

In that case, their Lordiships while concluding that under certain circumstances University-wise classification and reservation is constitutionally permissible, held on facts that the reservation under R. 5 though apparently appearing on the high side was not shown as unreasonably excessive. On a close study of the judgment, these observations cannot be taken to mean that the Government can, independently of the provisions of Art. 15 of the Constitution, reserve or restrict the total admission to a particular course from a particular source. All that has been laid down is that independently of the requirements of Art. 15, the Government can lay down the sources from which the admissions to a particular course are to be made. This specification of source, to my mind, does not have any different effect than what the reservations made in terms of Art. 15 of the Constitution have. Technically, this specification of source may not be called reservation in terms of Art. 15 of the Constitution, but in the general sense of the word this specification of source does amount to reservation. For this conclusion of mine I seek support from the following meaningful observations made by their Lordships of the Supreme Court in a later pronouncement in Dr. Jagdish Saran v. Union of India AIR 1980 SC 820 wherein after considering the implications of Chanchala's case (AIR 1971 SC 1762) (supra), their Lordships while dealing with the vires of a rule reserving 70% of the seats for Delhi Graduates in the Post-Graduate Degree in Dermatology awarded by the University of Delhi examined the question, 'Can a University acting within the constitutional parameters create a new kind of discrimination, viz., reservation for students of a particular University?' stated:

'The literal terms of Art. 14 do not tolerate it. The context of Art. 15 does not sanction it.'

Their Lordships further posed the question 'Can we carve out a fresh ground of preference?' and answered it with the following observations:

'But it must be remembered that exceptions cannot overrule the rule itself by running riot or by making reservations as a matter of course in every University and every course. For instance, you cannot wholly exclude meritorious candidates as that will promote sub-standard candidates............ So we hold, even apart from Art. 15 (3) and (4), that equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. Indeed, Art. 14 implies all this in its wider connotation and has to inform the interpretation of Art. 15.'

Thus, the question that needs to be determined is as to whether the total reservation--reservations made under Art. 15 of the Constitution and independently of that--can reasonably be made to the extent it has been made. Both the above-noted aspects of the matter have recently been considered and answered by a Full Bench of the Andhra Pradesh High Court in Dr. M. Narasimha Rao v. Secretary to the Government Medical and Health Department, Government of A. P. Hyderabad, AIR 1980 Andh Pra 104. In that case vires of Rule 2 dealing with admissions to Post-Graduate Courses in Medical Colleges of Andhra Pradesh were under challenge. Clause (a) of sub-rule (1) of this R. 2 provided that 14%, 4% and 25% of total number of seats available both in degree and diploma courses were to be reserved for Scheduled Castes, Scheduled Tribes and Backward Classes respectively in the subjects specified therein. This clause thus led to the reservation of 43% of seats in all in favour of the above-noted classes. Sub-rule (2) of this Rule provided that 50% of the seats in certain subjects and 30% of the seats in all other subjects were to be reserved for in-service candidates who were the employees of the Andhra Pradesh Medical Service. This sub-rule further laid down that candidates selected in reserved quota and in open competition were to be counted for the purpose of the reservation envisaged by the sub-rule. Considering the vires of this rule in the light of the observations of the Supreme Court In D. N. Chanchala's case (AIR 1971 SC 1762) (supra) as also the observations in M. R. Balaji v. State of Mysore, AIR 1963 SC 649 and State of Uttar Pradesh v. Pardip Tandon, AIR 1975 SC 563, the learned Judges of the Bench concluded that the principle enunciated by the Supreme Court laying down that generally speaking and in a broad way the reservation should not exceed 50% or should be within a reasonable limit, is 'of universal application even in matters not falling under Art. 15(4), but coming within Art. 14 of the Constitution.' I am in respectful agreement with this interpretation of the above-noted judgments of the Supreme Court. No doubt in Kumari Chitra Ghosh v. Union of India, AIR 1970 SC 35, where 40% of the seats reserved for weaker sections under Art. 15 of the Constitution and further 23 seats out of 120 seats, i.e., 18% reserved for various categories of applicants were held to be valid though the total reservation amounted to 63% yet it deserves to be noted that in this case it was found that the Central Government had been acting in a very reasonable way and was making nominations only to nine seats out of twenty-three reserved seats and the rest were thrown open to the general pool. Hence as a matter or general practice the reservation under the latter heads was only 7%. These cases in my opinion cannot be taken as precedent for upholding the extent of reservation in the instant case which, as already indicated, goes beyond 74%. As already pointed out by me above every reservation has to meet the twin test to avoid the violation of Art. 14 of the Constitution. This Article, as has repeatedly been laid down, does not forbid reasonable classification and in order to hold that the classification is reasonable, it has to be founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved. Though I am of the opinion that classification of 'staff of the University Library or in other words in-service candidates' is a reasonble classification and has been made with a view to achieve the object as stated in paragraph 8 of the return to provide an opportunity to working Librarians to improve their professional qualification, yet the reservation made for this class, when. taken along with the reservation made in terms of Art. 15 of the Constitution is highly excessive and arbitrary and thus violative of Art. 14 of the Constitution. I, therefore, strike it down.

6. Independently of my above noted conclusion I see no justification as to why the Vice Chancellor should not be adding five more seats to the course in spite of the general and specific authorisation by the Syndicate of the University vide its resolutions dt. July 25, 1981 and Sept. 10, 1983. The explanation of the learned counsel of the University that the Vice Chancellor has yet to work out the financial implications of this addition or has to satisfy himself about some other formalities is only stated to be rejected. It is the admitted position here that without looking to the satisfaction of any such formalities the Vice Chancellor added two more seats to the course to accommodate the recommendees of the Vice Chancellor of the Agricultural University, Ludhiana and the Manipur Government. If seats can be added for those candidates without the fulfilment of any formalities or requirements I see no reason as to why the Vice Chancellor cannot or should not add seats for accommodating the general category candidates. Besides this, it is not even faintly disputed by the University's counsel that in the past the Vice Chancellor has been adding some seats to the course and normally there have always been 24 seats in this course.

7. The only other submission made by Mr. Majithia, learned Senior Advocate for the University is that the petitioners who already stand admitted to the course under the orders of this Court dt. Sept. 22, 1983, though on provisional basis, would not be able to fulfil the requirement of attending the requisite number of lectures entitling them to take the examination. As per the calculations of the learned counsel which he has done in consultation with the University staff present in Court these candidates would be short of lectures by a fraction not, in any case, more than 15 lectures. I do not think the learned Counsel can defeat the claim of the petitioners on this ground. Firstly this argument, if at all was to be raised, should have been raised at the time when the order dt. Sept. 22, 1983 granting provisional admission to the petitioners was passed. Secondly, I am of the view that the University authorities who have made the admissions ignoring the principles enshrined in Art. 14 of the Constitution, cannot reasonably and plausibly contend that the petitioners should be disentitled to take the examination because of the fault on the part of these authorities. As already pointed out above, had there been no excessive reservation in favour of the in-service staff of the University, the petitioners stood every chance of being admitted to the course. Thus while adjusting the equities between the students who are wrongly admitted and those who are unjustly excluded, I find the petitioners have a better claim than the candidates who have been wrongly admitted by the University authorities.

8. I, therefore, while allowing the petition, direct the University authorities, including the Vice Chancellor, to add five more seats to the course to accommodate the petitioners and not to debar them from taking the examination on the ground that they failed to attend the requisite number of lectures. I further entitle the petitioners to the costs of this litigation which I determine at Rs. 300.

9. Petition allowed.


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