@JUDGMENTTAG-ORDER
S.M. Soni, J.@mdashOn completion of hearing on 11-8-95, this Court was short of time to give reasons and, therefore, the final-order was pronounced in the Court on that day. Giving of reasons was deferred and the same are now given hereunder.
2. Petitioner of Spl. C. A. No. 5617 of 1995 is a guardian of one minor Mehul, who had cleared his Higher Secondary School Certificate Examination (Science Stream) with 262 marks) minus 30 of attempts, which comes to 232 marks, to be considered for the purpose of admission to professional courses, The petitioner belongs to Scheduled Caste community in felation to this State. In State, there is one college named Pramukh Swami Medical College, Karamsad, which has payment seats where tuition fees payable are Rupees 55,000/- (Rupees fifty-five thousand) per term. According to the petitioner, so far as payment seats are concerned, reservation is not made available to SC/ST students. According to the petitioner, not providing of reservation in such payment seats is unconstitutional and ultra vires Article 15(4) of the Constitution of India as well as Article 14 of the Constitution inasmuch as it discriminates between the students belonging to higher class (advantage class) as compared to the students belonging to reserved category. According to the petitioner, not providing reservation in respect of payment seats is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. According to the petitioner, once having accepted the formula of reservation, the State cannot apply it arbitrarily without any reasonable nexus with the object, which is sought to be achieved.
3. In view of the above, the petitioner has filed this petition for issuance of necessary writ, order or direction to quash and set aside the Government Resolution in so far as it does not provide for reservation of SC/ST students in respect of payment seats and to hold ultra vires Rules 2 and -3 of Rules for admission to 1st MBBS/1st B.D.S./1st B. Physo course at the Government Medical Colleges -- P. S. Medical College, Karamsad -- Govt. Dental Colleges -- Schools of Physiotherapy in the Gujarat State 1995-96, ("the Rules" for short) framed by Health and Family Welfare Department, Sachivalaya, Gandhinagar approved vide G.R. No. MCC 1-95/1680/H dated 25-5-95 to the extent that it does not provide reservation for SC/ST students in payment seats. It is also prayed in the petition for a direction to provide reservation in such seats for the academic year 1995-96 and onwards. In substance, the petitioner challenges the action of the respondents of excluding the students of SC/ST, as no reservation is provided in payment seats at Pramukh Swami Medical College, Karamsad, being violative of Articles 14, 16, 41 and 46 of the Constitution of India.
4. Petitioners of Spl. C. A. No. 6545/95 have challenged the offending portion in the Rules, in particular Rules 2 and 3, for admission to 1st MBBS course inasmuch as respondents have indirectly reserved 96% of seats available at Pramukh Swami Medical College, Karamsad. In the said college, out of 50 free seats available, 48 seats are reserved for SC/ST and SEBC category students and only two seats are available for open merit candidates and the same is flagrant violation of law laid down by the Hon''ble Supreme Court. According to the petitioners, said situation has emerged on account of the provisions of Rules 2 and 3 of Rules. According to the petitioners, as per the settled legal position, reservation for backward class of citizens, which includes SC/ST and SEBC, must not exceed 50% of total seats. Excess reservation results in invidious discrimination and it destroys the very concept of equality. By providing Rules 2 and 3 and not providing reservation in payment seats, respondents have given a go-by to a settled constitutional limitation in the exercise of their power and have caused tremendous prejudice and injustice to the petitioners and other similarly situated open merit students. According to the petitioners, State Government has also permitted Engineering Colleges to be established in the State of Gujarat, namely, Nirmal Institute of Technology, Ahmedabad; Kalupur Co-operative Pharmacy College, Gandhinagar and Sarvajanik College of Engineering Technology. In the said Colleges, even in payment seats, the percentage of reservation is maintained. However, in P.S. Medical College, reservation is not provided for in payment seats and is only provided in open merit seats. According to the petitioners, by not providing reservation in payment seats, the act of authority is unconstitutional and unreasonable, unjust and improper and, therefore, that part of Rules 2 and 3 of the Rules is ultra vires, unconstitutional and liable to be struck down. The petitioners have, therefore, prayed for writ, order or direction to declare the following portion of Rule 2 of the Rules as unconstitutional and violative of the fundamental rights of the petitioners guaranteed under Articles 14, 15 and 19 of the Constitution of India:
"reservation as applicable to Pramukh-swami Medical College shall be computed with reference to the total number of seats available in the college."
and for further direction that reservation of SC/ST/SECB students to apply to the free seats at P. S. Medical College by computing the number of reserved seats only with respect to the number of free seats available in the said college.
5. Initially, notice was issued in the former petition (Spl. C. A. No. 5617/95) and Rule came to be issued on 28-7-95. In the subsequent petition (Spl. C. A. No. 6545/95), Rule came to be issued on 1-8-95 and was ordered to be heard with the former petition. Respondents Nos. 1 and 4 have filed counter affidavit in the former petition and as the time was running against all concerned in view of the fact that admission process was to open, it was agreed between the parties that the counter-affidavit filed in the former petition be also treated to be the counter-affidavit in the later petition. It was also agreed between the parties to take on record the statement signed by Mr. J. M. Christian, Under Secretary to the Government of Gujarat, Health and Family Welfare Department at New Sachivalaya, Gandhinagar as part of the counter-affidavit to former petition, which showed the number of seats, balance of seats after deducting seats for All India Entrance students and Government of India nominees, 7% SC scats; 14% S.T. seats and 27 SEBC seals and also showing how many seats are reserved in ail the Government colleges for SC/ST and ''SEBC students and how many seats are available for open merit students. It will be relevant to state that after deducting seats for All India Entrance Examination students and Government of India nominees, 790 seats remained, out of which 379 seats are reserved for SC/ST and SEBC students and 411 seats remained for open merit students, 411 open merit students seats include 50 payment seats of P. S. Medical College, Karamsad.
6. In former petition, petitioner challenges the same Rules 2 and 3 on the ground that payment seats do not provide for reservation for SC students and, therefore, it is bad. In the later petition, the challenge is that as Rules 2 and 3 do not provide for reservation for SC, ST and SEBC students in payment seats. The reservation is applicable only to the remaining 50 free seats and percentage reserved is calculated on the basis of seats inclusive of payment seats. So far as the former petition is concerned, it is the case of the petitioner that there should be reservation for SC students in payment scats while in the later petition also, the case is that there should be reservation in payment seats. In view of this fact, both the petitions are heard together and are disposed of by this common judgment.
7. As both the petitions refer to Rules 2 and 3 of the Rules, said Rules 2 and 3 are quoted below:--
"2. Seven per cent of the total seats earmarked for admission to First MBBS/First B.D.S./First B. Physio courses respectively shall be reserved for candidates belonging to scheduled castes and fourteen per cent of the total seats shall be similarly reserved for candidates belonging to scheduled tribes. Nomadic Tribes and Denotified tribes and twenty seven per cent of total seats in Medical/Dental college and in physiotherapy course shall be reserved for the candidates belonging to the socially and educationally backward classes provided that (i) widows; and (ii) orphan children shall be in this 27% reserved for SEBC, subject to the clarification that the reservation as applicable to Pra-mukhswami Medical College shall be computed with reference to the total number of seats available in the college although there shall be no reservation in the "payment seats" described hereunder in Rule 3. Under State quota as referred above, these seats are reserved for the candidates belonging to SC/ST/NT/DNT and SEBC recognised as such in the State of Gujarat and not to those who have migrated from other States.
2.4. The seats earmarked for admission of the particular category students under reserved seats for the candidates from the category belonging to SC/ST/NT/DNT/ SEBC etc. will be allotted for admission of the students of the respective categories. For this purpose, merit list will be prepared category-wise and admissions for each category will be regulated accordingly;
2.5. In case it is found in any particular year that the number of students belonging to respective communities and or categories mentioned above are not available for the reserved seats for such communities/categories, the vacant seats from that reservation shall be treated as unreserved seats and filled up from amongst the students from the open merit list for the purposes of admissions provided that if the reserved seats are distributed on pro-rata basis between Gujarat Board and Central Board/Council and if sufficient number of students are not available for the reserved seats distributed to the Central Board/Council, such vacant seats shall be filled up by the available candidate from amongst the students on merit list prepared for the Gujarat Board categorywise and vice versa.
3. Fifty per cent of the total sanctioned seats in the Pramukh Swami Medical College, Karamsad shall be known as "Free seats" the other fifty per cent shall be known as "Payment Seats". The higher tuition fees payable for a payment seat shall be Rs. 50,000/-(Rupees fifty thousand only) per term or in other words Rs. 1.10 lakhs per annum.
Mr. J. M. Christian has filed counter for respondents Nos. 1 and 4, wherein it is stated that the petition is not maintainable inasmuch as he Rules for admission are framed after due deliberation and proper application of mind and after considering all the relevant aspects and factors in the interest of the students and after considering the judgment of the Hon''ble Supreme Court in the case of
8. Taking later petition first, the argument advanced by learned counsel is that out of 100 seats at P. S. Medical College, Karamsad, 50 seats are payment seats and 50 are free seats and the reservation is made applicable to free seats only and reservation is not made applicable to 50 payment seats. Taking into consideration Rule 2, it is clear that 48 seats are for reserved category students. This means that out of 50 free seats, 48 seats are reserved and only two seats are available for open merit students. This Rule, therefore, defies the mandate given by the Supreme Court in the case of Indra Sawhney (supra) that reservation should not exceed increase 50% (para 121). According to Mr. Shah, learned Counsel for the petitioners, as 48 seats are reserved out of 50 seats, it comes to 96% reservation, which is in contravention of the settled legal position that reservation shall not exceed 50% in any case.
9. The Supreme Court in the case of
10. Learned Advocate for the petitioners Mr. Shah has relied on the judgment in the case of
11. It will be relevant to refer to the statement submitted by learned Addl. Advocate General Mr. Shelat. According to that statement and as stated in the counter-affidavit, the reservation is computed against the total sanctioned in-take capacity of the 4 Government Medical Colleges in the State of Gujarat and also P. S. Medical College, Karamsad. There are in all 790 seats available, out of which 55 seats are reserved for SC candidates at the rate of 7%, 111 seats are reserved for ST candidates at the rate of 14% and 213 seats are reserved for SEBC students at the rate of 27%, which comes to 379 seats, against 411 seats for open merit students.
Thus, in no case the reserved seats increase 50% of the total seat available for admission. It is the case of the petitioners that if one locks at 100 seats of P. S. Medical College, Karamsad, then 50 seats are payment seats and out of 50 free seats, 48 seats are reserved seats for SC/ST/SEBC students. This brings to 96% of reservation of free seats in P. S. Medical College. The argument of Mr. Shah, though appears to be attractive, however deserves to be rejected, as the reservation is against the total sanctioned in-take capacity of 4 Government Medical Colleges in the State of Gujarat and also P. S. Medical College, Karamsad, which is also an aided college, to which provisions of reservation do apply. This apart, the Rules are framed after keeping in mind the principles laid down,in Unnikrishnan''s case as well as Indra Sawhney''s case and the Rules for admission are framed by the State of Gujarat by way of a policy decision and thereby no reservation is kept in payment seats. Despite not keeping any reservation in payment seats, the ratio of reservation does not exceed 50% and it does not offend any of the observation or direction laid down in any of the judgment of the Supreme Court. Thus, there is no substance in the contention raised by Mr. Shah and Spl. C. A. No. 6545/95 is liable to be dismissed.
12. So far as Spl. C. A. No. 5617/95 is concerned, if reservation is allowed in payment seats, it strikes to the fundamental purpose of reservation is to uplift the candidates who are bracketed in reserved category. If the purpose of reservation is looked into and considered, then in that case, if the reservation is provided in payment seats, it will mar the purpose of reservation and, rightly contended by the Government, the students of reserved category if not available on payment seats, less meritorious students would take benefit of such payment seats. It may happen that from amongst the students of reserved category, there may be meritorious students who cannot afford to avail of payment seats and if reservation is applied to payment seats, their seats will be reduced and those who are meritorious from amongst the reserved category may lose their opportunity I to avail admission in those seats. It will be relevant to refer to certain observations of Hon''ble Supreme Court in Indra Sawhney''s case. In that case, the Hon''ble Supreme Court. has observed as under:--
"387. Under Article 16(4); the reservation in the State employment is to be provided for a "class of people" which must be "backward" and "in the opinion of the State" is "not adequately represented" in the services of the State. Under Article 46, the State is required to "promote with special care" the "educational and economic interests" of the "weaker sections" of the people and "in particular", of the Scheduled Castes and Scheduled Tribes, and "to protect" them from "social injustice" and "all forms of exploitation". Since in the present case, we are not concerned with the reservations in favour of the SCs/STs, it is not necessary to refer to Article 335 except to point out that, it is in terms provided there that the claims of SCs/STs in the services are to be taken into consideration, consistently with the maintenance of efficiency of administration. It must, therefore, mean that the claims of other backward class of citizens arid weaker sections must also be considered consistently with the maintenance of the efficiency. For, whomsoever, therefore, reservation is made, the efficiency of administration is not to be sacrified, whatever the efficiency may mean. That is the mandate of the Constitution itself.
388. The various provisions in the Constitution relating to reservation, therefore, acknowledge that reservation is an integral part of the principle of equality where inequalities exist. Further they accept, the reality of inequalities and of the existence of unequal social groups in the Indian society. They are described variously as "socially and educationally backward classes" (Article 15(4) and Article 340), "backward class" (Article 16(4) and "weaker sections of the people" (Article 46). The provisions of the Constitution also direct that the unequal representation in the services be remedied by taking measures aimed at providing employment to the discriminated class, by whatever different expressions the said class is describ-ed. How does one identify the discriminated class is a question of methodology. But once it is identified, the fact that it happens to be a caste, race, or occupational group, is irrelevant. If the social group has hitherto been denied opportunity on the basis of caste, the basis of the remedial reservation has also to be the caste. Any other basis of reservation may perpetuate the status quo and may be in appropriate and unjustified for remedying the discrimination. When, in such circumstances, provision is made for reservation, for example, on the basis of caste, it is not a reservation in favour of the caste as a "caste" but in favour of a class or social group which has been discriminated against, which discrimination cannot be eliminated, otherwise. What the Constitution forbides is discrimination "only" on the basis of caste, race etc. However, when the caste also happens to be a social group which is "backward" or a "weaker section", this discriminatory treatment in its favour, is not only on the basis of the caste.
389. The objectives of reservation may be spelt out variously. As the U. S. Supreme Court has stated in different celebrated cases viz......., the reservation or affirmative
action may be undertaken to remove the "persisting or present and continuing effects of past discrimination"; to lift the "limitation on access tp equal opportunities"; to grant "opportunity for full participation in the
governance" of the society; to recognise the" discharge "special obligations" towards the "disadvantaged and discriminated social groups"; "to overcome substantial chronic under-representation of a social group"; or "to serve the important governmental objectives". What applies to American society, applies ex proprio vigore to our society. The discrimination in our society is more chronic and its continuing effects more discernible and disastrous. Unlike in American, the all
pervasive discrimination here is against a vast majority;
390. As has been pointed out earlier, our Constitution itself spells out the important objectives of the State Policy. There cannot be a more compelling goal than to achieve the unity of the country by integration of different social groups. Social integration cannot be achieved without giving equal status to alt. The administration of the country cannot also be carried on impartially and efficiently without the representation in it of all the social groups and interests, and without the aid and assistance of all the views and social experiences. Neither democracy nor unity will become real, unless all sections of the society have an equal and effective voice in the affairs and the governance of the country.
391. In a society such as ours where there exist forward and backward, higher and lower social groups, the first-step to achieve social integration is to bring the lower or backward social groups to the level of the forward or higher social groups. Unless all social groups are brought on an equal cultural plane, social intercourse among the groups will be an impossibility inter-marriage as a matter of course and without inhibitions is by far the most potent means of effecting social integration. Inter-marriage between different social groups would not be possible unless all groups attain the same cultural level. Even in the same social group, marriages take place only between individuals who are on the same cultural plane. Culture is a cumulative product of economic and educational attainments leading to a social accomplishment and refinement of mind, morals and taste. Employment and particularly the governmental employment promotes economic and social advancement which in turn also leads to educational advancement of the group. Though it is true that economic and educational advancement is not necessarily accompanied by cultural growth, it is also equally true that without them, cultural advancement is difficult. Employment is thus an important aid for cultural growth. To achieve total unity and integration of the nation, reservations in employment are, therefore, imperative, in the present state of our society.
392. Under the Constitution, the reservation in employment in favour of backward classes are not intended either to be indiscriminate or permanent. Article 16(4) which provides for reservations, also at the same time prescribes their limits and conditions. In the first place, the reservations are not to be kept in favour of every backward class of citizens. It is only that backward class of citizens which, in the opinion of the State, is "not adequately represented". In the services under the State, which is entitled to the benefit of the reservations. Secondly, and this follows from the first, even that backward class of citizens would cease to be the beneficiary of the reservation policy, the moment the State comes to the conclusion that it is adequately represneted in the services."
13. Thus, if the former petition i.e. Spl. C. A. No. 5627/95 is allowed, it will mar the principle and purpose of reservation and will act contrary to the constitutional guarantee under Article 15(4) of the Constitution of India.
14. In view of the above discussion, any part of Rules 2 and 3 of the Rules cannot be said to be arbitrary, ultra vires and offending any of the provisions of the Constitution of India.
15. In the result, both the petitions fail. Rule in each petition is discharged. However, there will be no order as to costs.
