V.K. Mehrotra, J.@mdashThe Himachal Pradesh University, located at Summer Hill, a suburb at the Western end of Shimla, has 24 teaching departments covering areas of study in various faculties. One of the courses of study, which is available in this University, is Master of Business Administration (M.B.A. for short).
2. The First Ordinances of the University deal with ''Admission'' in Chapter III. Ordinance (sic), (as amended till 1986), in its relevant part, in this Chapter reads:
Admission and reservation-Admission to the various courses of study except M.B.B.S. course shall be open to all persons, irrespective of race, creed, caste or class, subject to the following reservations:
(a) 75% of the seats in each course of study shall be reserved for the students who pass their qualifying examination from the Himachal Pradesh Board of School Education or from the Central Board of Secondary Education or the Council For Indian School Certificate Examination from a school situated within the territorial jurisdiction of the University or from the H.P. University or from H.P. Krishi Vishwa Vidyalaya, as the case may be. Remaining 25% of the seats shall be open to all.
(b) 15% and 7-1/2% of the seats available in each category mentioned in (a) above shall be reserved for students belonging to the Scheduled Castes and Scheduled Tribes respectively. In their case the minimum qualifying marks for admission in a course shall also be relaxed by 5% of the maximum marks except in the case of B.L. and L.L.B. Course.
Provided that 3% of the seats available in each category mentioned in (a) and (b) above shall be reserved for physically handicapped students.
Provided that 5% of seats (subject to minimum of one seat) available in each category mentioned in (a) and (b) above shall be reserved in each department for outstanding sportsmen/women:
Provided that 5% of seats (subject to minimum of one seat) available in each category mentioned in (a) and (b) above shall be reserved in each department for outstanding Cultural Activists.
3. Ordinance 3.2 says that the basis of admission shall be merit to be determined, inter alia, by a competitive examination. The University issues information to the intending Applicants for admission to the various courses of study through booklets entitled ''Handbook of Information''. The present case relates to the academic year 1991-92 in which Petitioner, Arun Sawhney sought admission to the M.B.A. course. The Handbook of Information pertaining to this year, relating to M.B.A. examination, provides in Clause 8 as under:
8. Admission and Reservation (Ordinance 3 1) for admissions to M.B.A./D.P.M. and D.M.M.�Admissions to the courses of study shall be open to all persons irrespective of race, creed, caste or class, subject to the following reservations:
(a) 75% of the sears in each course of study shall be reserved for the student''s who pass their qualifying examination from the Himachal Board of School Education or from the Central Board of Secondary Education or the Council for Indian School Certificate Examination from a school situated within the territorial jurisdiction of the University or from H.P. University or from H.P. Krishi Vishva-vidyalaya, as the case may be Remaining 25% of the seats shall be open to all.
(b) 15% and 7.5% of seats available in each category mentioned in (a) above shall be reserved for students belonging to the Scheduled Castes and Scheduled Tribes respectively. In their case the minimum qualifying marks, for admission in a course shall also be relaxed by 5% of the maximum marks:
Provided that 3% seats available in each category mentioned in (a) and (b) above shall be reserved for physically handicapped students.
(c) Provided further that 5% of seats (Subject to minimum of one seat) available in each category mentioned in (a) and (b) above shall be reserved in each department for outstanding cultural activists.
(d) Provided further that one seat in M.B.A. shall be reserved for the serving/retired defence service personnel if they fulfil the minimum eligibility conditions prescribed for admission.
(e) 5% of the seats (Subject to a minimum of one seat) will be reserved in each department for outstanding sportsmen/women:
Provided, however the Vice-Chancellor may amit any student to any class, if he is an outstanding sportsman, who fulfils the minimum eligibility qualification prescribed for admission.
N.B. (i) Outstanding sportsman means, a person who has represented India or combined Universities or who has earned distinction of All India level more than once.
4. Roster for admission and reservations is contained in clause 8.3 which says that separate roster will be maintained for 75% seats and 25% seats as mentioned under Clause 8. This clause, in ultimate analysis, provides the following percentage of reservation for different categories mentioned below:
Handicapped -- 3%
Cultural -- 5%
Sports -- 5%
Scheduled Caste -- 15%
Scheduled Tribe -- 7.5%
5. The total number of seats available in the M.B.A. course in the year 1991-92 are 30 According to the statement made before us by Shri D.C. Jishtu, appearing for the Respondent-University in this case, 8 of these seats were available amongst 25% seats open to candidates like the Petitioner who had not passed the qualifying examination (being a graduate degree) from the H.P. University. The remaining 22 seats were those falling in the category of 75% seats meant for candidates who had passed the qualifying examination from the H.P. University or a college affiliated to it or the H.P. Krishi Vishwa Vidyalaya We have also been informed that out of the aforesaid 8 seats, (which we may describe as seats available to outside'' candidates, one seat each was reserved for and given to a candidate belonging to Scheduled Caste and Scheduled Tribe and one each to a candidate granted admission in the seat reserved for sportsmen and cultural quota. Similarly, out of 22 seats forming part of 75% of the seats available to, what may be described as, ''inside'' candidates, three were reserved for and given to candidates belonging to Scheduled Caste, two to those belonging to Scheduled Tribe and one each under the sports and cultural quota Thus, out of the 30 seats only four were available, by way of open competition to outside candidates like the Petitioner.
6. After accounting for the reservation of 75% seats for the ''inside'' candidates and reservation from amongst the 8 seats meant for the outside candidates, the total number of seats available to a candidate like the Petitioner is 4 out of 30. In other words, 86.67% (say 87%) seats are reserved while 13.33% (say 13%) seats are available to outside candidates by open competition.
7. The case of the Petitioner, Arun Sawhney, is that after having obtained his initial education in the Bishop Cotton School, Shimla, from where he passed his Indian Certificate of Secondary Education Examination in the year 1986, he was admitted in Goswami Ganesh Dutt Sanatan Dharam. College, Chandigarh, from where he graduated in Commerce in the year 1991. He thereafter appeared at the competitive examination for admission to the M.B.A. course in the H.P. University in the year 1991. In, it, he qualified at the written test and was also asked to participate in the group discussion. He was, however, not given admission, on the ground that he "failed to secure merit" within the aforesaid ''25% seats open to all'' quota. The Petitioner then came to this Court for relief through the present petition which was instituted on August 31, 1991.
8. The Respondent University has filed a return in pursuance of notice issued to it by this Court on September 4, 1991. The Petitioner has filed an affidavit in rejoinder.
9. Shri D.D. Sood has appeared before us on behalf of the Petitioner and has made two main submissions. Firstly, that the institutional preference, under which 75% seats had been kept reserved for the ''inside'' candidates, was constitutionally invalid; and secondly, that in any case, the reservation of seats to an extent of 87% was arbitrary and was liable to be struck down.
10. The first submission may be considered in the first instance.
11. The admission is dependant upon the result in a competitive examination wherein candidates both ''inside'' and ''outside'' appear together. The rules of eligibility are common for both. As such, law does not countenance any institutional preference for candidates who may have passed the qualifying examination from the H.P. University or H.P. Krishi Vishwa Vidyalaya by confining consideration for 75% of the seats only to them.
12. Shri Sood placed reliance upon the decision of the Supreme Court in The
It is no doubt open to the State to prescribe the sources from which the candidates are declared eligible for applying for admission to the Medical College; but when once a common Entrance Test has been prescribed for all the candidates on the basis of which selection is to be made, the rule providing further that 40% of the seats will have to be reserved for the H.S.C. candidates is arbitrary....
13. The two reasons given for the aforesaid observations in the same paragraph are that after a common test has been prescribed, there cannot be a valid classification of the Pre-University Course and Higher Secondary Course (Multipurpose) candidates, and that even assuming that such a classification is valid, the said classification has no reasonable relation to the object sought to be achieved, namely, selecting the best candidates for admission to the Medical Colleges.
14. Shri Sood also relied upon some observations made by the Supreme Court in
...the classification of the employees of Government/Semi-Government institutions etc by the impugned rule for the purpose of admission in the evening classes of Three-Year L.L.B. Degree Course to the exclusion of all other employees is unreasonable and unjust, as it does not sub-serve any fair and logical objective....
15. Neither of these decisions has dealt with the question of institutional preference at all. Besides, in the present case, we have been informed by learned Counsel for both the parties that though the ''inside'' and ''outside'' candidates appeared at a common competitive test, with same question papers set for them, their results were tabulated separately. In other words, the ''inside'' candidates were notionally made to appear at a test held for them while the ''outside'' candidates appeared at a test held for candidates of their category though the question papers set for both were the same. On facts, thus the present case, has no likeness to the one which the Supreme Court was considering in Balaram, nor is the present a case which bears semblance to the problem which the Supreme Court was called upon to consider in the case of Deepak Sibal.
16. ''Institutional preference'' as a basis as a source for selection for admission to educational institutions has come to be a legally acceptable one in this country Mostly, in cases relating to admission to Medical Colleges, the principle has been recognised by the Supreme Court. We need not notice all the decisions in this regard and may refer to only some of the judgments.
17. In
...There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centres for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise.... Further, the Government which bears the financial burden of running the Government Colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules....Candidates passing through the qualifying examination held by a University form a class by themselves as distinguished from those passing through such examination from the other two Universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own University to advance their training in technical studies, such as medical studies....
18. In
...It would be constitutionally permissible to provide, as an interim measure until we reach the stage when we can consistently with the broad mandate of the rule of equality in the larger sense; ensure admissions to the M.B.B.S. course on the basis of national entrance examination an ideal which we must increasingly strive to reach�for reservation of a certain percentage of seats in the medical colleges for students satisfying a prescribed residence requirement as also for students who have passed P.U.C or pre-medical examination or any other qualifying examination held by the University or the State and for this purpose it should make no difference whether the qualifying examination is conducted by the State Board or by the Central Board of Secondary Education, because no discrimination can be made between schools affiliated to the State Board and schools affiliated to the Central Board of Secondary Education....We are glad to find that the policy of the Government of India in the matter of reservation based on residence requirement and institutional preference accords with the view taken by us in that behalf We may point out that even if at some stage it is decided to regulate admissions to the M.B.B.S. course on the basis of All India Entrance Examination, some provision would have to be made for allocation of seats amongst the selected candidates on the basis of residence or institutional affilication so as to take into account the aforementioned factors.
19. The decision in Pradeep Jain was explained by the Supreme Court itself in
...They "(reference being to State Governments and Universities)" have misinterpreted our judgment to mean that 30% of the total number of seats available for admission to M.B.B.S. course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total misreading of our judgment. What we have said in our judgment is that after providing for reservation validly made, whatever seats remain available for non-reserved categories, 30% of such seats at the least, should be left free for open competition and admission to such 30% open seats should not be based on residence requirement or institutional preference but students from all over the country should be able to compete for admissions to such 30% open seats....
20. These decisions of the Supreme Court, and those referred to in these judgments make it clear beyond doubt that it is permissible to provide for institutional preference in the matter of admission to educational courses It is true that law frowns upon cent per cent reservation on this basis as is clear from the observations made by the Supreme Court in Dr Pradeep Jain (in para 20) that:
...We unreservedly condemn wholesale reservation made by some of the State Governments on the basis of domicile'' or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State excluding ail students not satisfying this requirement, regardless of merit. We declare such wholesale reservation to be unconstitutional and void as being in violation of Article 14 of the Constitution.
21. Which rule has been applied by the Karnataka High Court in two of its decisions, namely Dr. Lakshmi V.V.S. v. State of Karnataka and Ors. AIR 1988 Knt (sic) and Dr. S. Balaji Pai v. State of Karnataka and Ors. AIR 1990 Knt 246 though we must mention that the observations made by the Supreme Court in
...In view of this, it is unnecessary for us to consider the validity of Rule C(5) except to state that we do not agree with the High Court when it has said that there is nothing abhorrent about the requirement contained in the said rule. The question of validity of Rule C(5) requires careful consideration and it cannot be brushed aside in the manner in which the High Court has done. As stated earlier, we, however, leave this question open.
Rule C(5) of the Medical Colleges of the Government of Maharashtra Rules for Admission, mentioned in this quotation provided that:
in addition to the qualifications set out earlier only those candidates would be eligible for admission to the medical colleges who have passed the S.S.C. or Senior Cambridge or Indian School Certificate or equivalent examination from any of the recognised schools in the Maharashtra State.
22. We find ourselves unable to agree with the first submission of Shri D.D. Sood that it was not permissible in law to provide for institutional preference in the matter of admission to M.B.A. course in the H.P. University.
23. The second submission now : What has been urged by Shri Sood in that regard is that even though institutional preference be permissible, the extent thereof should pass the test of reasonableness within the meaning of Article 14 and that in the circumstances of the present case, providing for institutional preference to an extent of 75%, which, together with reservation for other categories even amongst 25% seats makes the total reservation of nearly 87% seats, is constitutionally impermissible.
24. It is pointed out by Shri D.C. Jishtu, appearing on behalf of the University, that institutional preference to an extent of 80% of seats was upheld by the Supreme Court in D.N. Chanchala (supra). Likewise, in Dr. Pradeep Jain (supra) it was upheld to an extent of 70% of seats for the M.B.B.S. course It was also emphasised by Shri Jishtu that in Dr. Dinesh Kumar (supra) the Supreme Court has observed that the ratio of 70% (institutional preference) and 30% (open seats) was to be worked out over and above the other constitutional reservations which on the facts of that case resulted in there being 79% reserved seats while only 21% seats were available for open competition. In the subsequent decision of the Supreme Court in Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College Allahabad and Ors. AIR 1986 SC 1877 the Supreme Court had upheld reservation of seats upto 85% in respect of M.B.B.S. course leaving only 15% seats for candidates who were to get admission on the basis of All India Competition, while in the case of post-graduate courses it had upheld reservation of seats upto 75% holding that the remaining 25% seats were to be filled in on the basis of All India Competition What was stressed by Shri Jishtu was that having regard to the extent of reservation for seats upheld by the Supreme Court, even in a technical course like the M.B.B.S. and its post-graduate courses, reservation of seats for M.B.A. to the extent of about 87% should not be considered arbitrary.
25. As desired by us Shri D.C. Jishtu provided us further information today in respect of competitive test for M.B.A. for the session 1991-92 on the basis of instructions given to him by the Dean of Studies H.P. University through letter No. PS/DS/MBA/91-708 dated November 2, 1991 in this letter the information contained is that against the quota of 75% seats reserved for the students who had passed their qualifying examination from the H.P. University, 407 persons appeared in the competitive test while 304 candidates appeared in the quota of 25% seats which were open to all. Besides, the break-up of seats of various categories as per the roster point for 75% seats was as under:
Category H. P. U. Open
1. General 15 4
2. S. C. 3 1
3. S. T. 2 1
4. Sports 1 1
5. Cultural 1 1
On the basis of the information aforesaid, Shri Jishtu pointed out that after giving allowance for reservation made for candidates belonging to Scheduled Caste and Scheduled tribes out of 75% as well as 25% quota aforesaid the total percentage of seats which could be said to have been reseived for'' inside'' candidates worked out to about 83% and about 17% seats were available for open competition to ''outside'' candidates. In this view of the matter, according to Shri Jishtu, the reservation could not be treated to be excessive.
25. We have considered the submission of Shri Jishtu with the care that it deserves, but find ourselves unable to accept it. The reason Is that M.B.A. is a post-graduate course and greater emphasis, we feel, should be put on merit of the candidates who are given admission in it. The approach which reservation for a post-graduate course deserves, albiet in M.B.A., should be no different than the one which commended itself to the Supreme Court in the matter of post-graduate courses in the sphere of medical sciences.
26. An examination of the various decisions of the Supreme Court, brought to our notice by Shri Jishtu, lends support to our view. In
27. In
28. In the matter of reservation of seats for Master of Library Science wherein the Punjab University had provided for reservation for the staff of the University Library, approximately 74%, the view taken was that it was highly excessive and liable to be struck down.
29. The reservation in the instant case having been found by us to be excessive, the question next is about the relief which should be granted in the case. We have been informed that the classes for the course for the session 1991-92 have already commenced, about two months back and all the 30 candidates to whom admission was granted for it have joined The result was declared by the University on August 20/21, 1991. The Petitioner, undoubtedly, approached this court at an early date namely, on August 31, 1991 within about ten days of the declaration of the result. Yet, it would be inequitable now to disturb the admission granted to the various candidates on the basis of the result declared by the University way back on August 20/21, 1991. We direct the University that for the future years it should re-frame its Ordinance as well as the prospectus in a manner which brings it in consonance with the constitutional mandate contained in Articles 14 and 15 of the Constitution by ensuring that atleast 25% seats to the post-graduate courses, like the M.B.A., are available to candidates who may be seeking admission on the basis of merit in an open competition irrespective of the institution from where they have passed the qualifying examination. For this year, we feel, ends of justice would be met by directing the Respondent University to create an additional seat for the Petitioner in the M.B.A. course and give admission to him in case he is otherwise found entitled to it on merit on the assumption aforesaid. We are inclined to make this direction with a view to adjust equities between the parties and have been influenced in this respect by a similar direction made by a Division Bench of the Bombay High Court in
30. The petition shall stated allowed as aforesaid, but the parties are left to bear their own costs.
