IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. Nos.1256 of 2006, 1034 of 2006 & 627 of 2007. Judgment reserved on: 10.5.2007 & 11.5.2007. Date of decision: July 6, 2007. CWP No.1256 of 2006: Himachal Education Promotion Society and another ....Petitioners -Versus- State of H.P. and another ….Respondents CWP No.1034 of 2006: Smt.H.K.Ahuja ….Petitioner Versus State of H.P. and others ….Respondents CWP No.627 of 2007: Sh.Vishal Goel and another ….Petitioners Versus State of H.P. and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Acting Chief Justice. The Hon’ble Mr.Justice Surinder Singh, Judge. Whether approved for reporting? For the Petitioners: M/s.R.S.Ahuja, C.N.Singh & J.L. Bhardwaj, counsel for the petitioners. For Respondents: Mr.M.S.Chandel,A.G. with Mr.R.M. Bisht, Dy.A.G. for respondents-State. Mr.V.D. Khidtta, counsel for respondents H.P. University. Deepak Gupta,A.C. J. The above mentioned three writ petitions are being disposed of by this common judgment since common questions of law and fact arise for decision in the case. 2 In the State of Himachal Pradesh the H.P. University grants affiliation to various Colleges to run the B.Ed. courses. The University also controls the process of admission to the B.Ed. Courses. A policy has been framed laying down the norms and conditions for granting affiliation to the Institutes to run B.Ed. Courses in the private sector. Besides laying down the various para- meters for the infrastructure required to run a College these policy guidelines also lay down the norms for the strength and qualifications of the academic and other staff. As per these guidelines notified vide notification dated 20.12.2004 the private Institutions shall not be entitled to any grant-in-aid from the Government. The eligibility criteria will be the same as prescribed by the N.C.T.E./H.P.U/H.P. Government from time to time. The policy also states that fee structure shall be decided by the State Government from time to time. The H.P. University issued the prospectus for the Session 2006-2007 and as per Clause 3( c) of this prospectus the candidates should be a bonafide/domicile resident of Himachal Pradesh. The prospectus also provides that the maximum age limit for male candidates in the general category is 26 years, for female candidates in the general category is 28 years and for scheduled castes and scheduled tribes candidates it is 29 years for both sexes. The prospectus also lays down that for being eligible to appear in the entrance test the candidates in the general category should have 3 obtained 45% marks and above and in the case of scheduled castes and scheduled tribes candidates the requirements is 40% and above. During the pendency of the petition prospectus for the session 2007- 2008 has been issued which contains similar conditions. In CWPs 1034 of 2006 and 627 of 2007 the main challenge is to the condition which provides that all the candidates should be bonafide residents of Himachal Pradesh. This condition is challenged on the ground that it amounts to 100% reservation for Himachalis. A prayer has also been made for a direction to the Government to regulate the fees structure in the private B.Ed. Colleges. It is also prayed that the age limit so fixed should be modified and the discrimination between the boy and girl candidates belonging to the general category should be held to be illegal and quashed. CWP No.1256 of 2006 has been filed by the Himachal Education Promotion Society which is running a B.Ed. College. In addition to the grounds raised above, another ground raised and prayer made is that the Colleges should be permitted to make admission on the basis of the marks obtained in the qualifying examination even from candidates who have not appeared in the common entrance test. The stand of the State is that the policy in question cannot be subject matter of judicial scrutiny and that 100% reservation for bonafide Himachalis has been done since similar reservation is in 4 force in all the neighbouring States except the State of Jammu and Kashmir. We have heard learned counsel for the parties and shall deal with the contentions one by one. i).100% reservation for bonafide Himachalis: The 100% reservation made for bonafide Himachalis is challenged by the counsel for the petitioners on various grounds. It is submitted that there is no rationale for making such reservation and it has no nexus with the object sought to be achieved. Sh.Ahuja, learned counsel for the petitioners submitted that this reservation is violative of Article 14 of the Constitution of India and according to him such a reservation cannot be justified on any ground. Reliance has been placed upon various judgments of the Apex Court. In Govind A. Mane and others vs. State of Maharashtra and others, (2000) 4 SCC 200, the apex Court held that the District- wise reservation for the B.Ed. Courses is not constitutionally valid and has no reasonable nexus with the object sought to be achieved. Reliance is also placed on various judgments of the Apex Court wherein the Apex Court has held that in every Medical College 15% seats should be filled in on the basis of All India Medical examination test. We live in a country comprising of a large number of States. Encouragement should also be given for the candidates from one State to move to another State. No State can be permitted to be totally insular and an island in itself. There has to be interaction and 5 intercourse between various States and the residents of all States. There is no rationale for reserving 100% seats for bonafide Himachalis. The only ground given is that in the neighbouring States similar practice is being followed. Such a reasoning is inherently faulty. The Apex Court in Dr.Pradeep Kumar Jain and others vs. Union of India and others, AIR 1984 SC 1480, held that in the matter of admissions to Medical Colleges and Institutions run by the Union of India or State Government or other local bodies and authorities at least 30% should be granted on the basis of All India Entrance Examination. Later on the all India quota was reduced to 15%. A large number of judgments have been cited and it is not necessary to cite all of them. However, the minimum percentage prescribed for admission on All India basis in all the cases is 15%. Keeping in view the law laid down by the Apex Court, we are of the considered view that 100% reservation for bonafide Himachalis is arbitrary and violative of Article 14 of the Constitution of India and that such reservation cannot exceed 85% and at least 15% seats must be open to candidates from any where in the Country. ii).Gender Discrimination: It has been contended that the age criteria prescribing maximum age of 26 years for male candidates belonging to the general category and 28 years for female candidates belonging to the general category is on the face of it discriminatory and is a gender bias. It is further contended that the upper age limit for recruitment 6 in Himachal Pradesh is 45 years and as such the age limit should be 45 years. We are not in agreement with this contention. The age criteria have to be fixed in every case and it is for an expert body like the University or the N.C.T.E. to fix the age criteria. The Courts cannot substitute their judgment for the judgment of the experts unless the criteria laid down by the experts is on the face of it is illegal and arbitrary. Firstly we shall deal with the allegation that there is gender discrimination between the boys and girls inasmuch as the maximum age prescribed for boys is 26 years and it is 28 years for girl candidates. There are justifiable reasons for prescribing a higher age limits to the girl candidates. This Court cannot shut its eyes to the fact that in our Country the girl child is discriminated against even before her birth. The discrimination begins after the conception of the girl child which has led to the reprehensible practice of female foeticide. Thereafter, also the girl child is not treated equally and whereas her male siblings will be sent to school, the girl child is kept at home. This social and economic discrimination continues throughout life and it is the bounden duty of the State to ensure that some advantage is given to the females at a later stage. Prescribing of a maximum age limit of 28 years for the female candidates is a step in the right directions and cannot be said to be illegal and arbitrary. As far as the prayer of the petitioners that the maximum age limit should be 45 years is concerned the same has been made only 7 to be rejected at the outset. The argument that since the maximum age for recruitment is 45 years this should also be the maximum age for admission to an educational institution is totally fallacious. iii)Regulation of Fee Structure: Another prayer made is that the Government should monitor the fee structure and admission procedure in terms of the judgment of the Apex Court in Islamic Academy of Education and another vs. State of Karnataka and others, (2003) 6 SCC 697. The policy guidelines laid down in the notification already provides that fee structure shall be as decided by the State Government from time to time. Guidelines are also given and no further directions are called for. iv)Admission on the basis of marks obtained in the qualifying examination:- In CWP No.1256 of 2006 one of the prayers made is that the petitioners College should be permitted to fill up 10% non- subsidized seats under the management quota as per the merit obtained in the qualifying examination as has been done in B.Tech. course, 3 years LL.B course and in the Dental College. Sh.J.L. Bhardwaj, learned counsel for the petitioners has placed reliance on the letter dated 10th August, 2006 sent by the Registrar of the University to the Director of Technical Education in which provision has been made for admission on the basis of merit obtained in 10+2 qualifying examination. He has also placed reliance on a similar letter issued by the University whereby admission to the LL.B 3 8 years course has been permitted to be made on the basis of merit in 10+2 examination in Himachal Pradesh College of Law, Kala Amb. The petitioner has also placed on record a notification dated 24th August, 2006 issued by the Principal Secretary (Health) to the Government of Himachal Pradesh purported to have been issued in exercise of the powers vested in the State Government under Sections 3 and 7 of the Himachal Pradesh Private Medical Education Institutions (Reservation of Admissions and Fixation of Fee), Act, 2006, whereby the private and dental colleges in Himachal Pradesh have been permitted to fill up the management quota seats on the basis of qualifying 10+2 examination from any State. As far as the admissions to the Law College and the Engineering College are concerned, we do not have sufficient material before us to show as to whether the Registrar was entitled to permit such admissions or not. We are prima facie of the view that normally the Management cannot be permitted to make admissions only on the basis of the marks obtained in the qualifying examination unless the Rules specifically permit the Management to do so. We want to make it absolutely clear that the candidates should have at least obtained the minimum marks which would have made the candidate eligible to appear in the entrance examination. In the present case the minimum qualifying marks for general category candidates in B.Ed. Courses are 45% and for scheduled castes and scheduled tribes candidates the minimum marks required are 40%. These conditions are also prescribed by the NCTE. No candidate 9 having less than these marks can be admitted to the B.Ed. courses. The persons who qualify the B.Ed. examination will be teachers of tomorrow and shall be teaching young students. It is, therefore, necessary that some minimum qualifications are laid down so that some minimum standards are met. We are prima facie of the opinion that the notification dated 24th August, 2006 issued by the Principal Secretary (Health) in so far as it permits admissions to the Dental Colleges from amongst candidates who have qualified 10+2 examination from any State is illegal. The Apex Court in Dr.Preeti Srivastava and another vs. State of M.P. and others, (1999) 7 SCC 120, clearly held that while considering the standards of education in any College or Institution the calibre of the students who are admitted to that College cannot be ignored. In AIIMS Students Union vs. AIIMS and others, (2002) 1 SCC 428, the Apex Court clearly laid down that prescribed standards cannot be diluted to such an extent so as to become practically non-existent. In Saurabh Chaudri and others vs. Union of India and others, AIR 2004 SC 361, the Apex Court held that the minimum qualifying marks cannot be relaxed and anybody who has less than 50% marks cannot be given admission. In Mridul Dhar (Minor) and another vs. Union of India and others, (2005) 2 SCC 65, the Apex Court after considering the entire law on the subject issued direction to all the States and Union 10 Territories of the Country with regard to the admissions to Medical/Dental Colleges. Guideline No.13 reads as follows: “13.For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.” Again in Association of management of Unaided Private Medical & Dental College vs. Pravesh Niyantran Samiti and others, (2005) 13 SCC 704, the Apex court laid down that admission to Medical and Dental Colleges should be on the basis of merit and merit alone and even the seats in the management quota should be filled up totally on the basis of merit. The Notification dated 24th August, 2006 permits back door admission. We are absolutely surprised to note that the State has permitted candidates who have qualified 10+2 examination from any State to be admitted to the Dental Colleges without even ensuring that they fulfill the basic eligibility criteria of 50% marks. Only students who have obtained 50% marks in 10+2 can appear in the HPCPMT as well as Pre Medical Examination test conducted by CBSE. There have to be some minimum standards for a person aspiring to become a Doctor, Engineer or a Dentist. The notification in question even permits persons with mere pass marks of 33% to be admitted to the Dental Colleges. We are also of the view that if admission has to be made from amongst candidates who have not even qualified the HPCPMT or CBSE PMT examination then wide publicity should have been given to such a scheme much prior to the 11 admissions and unfilled seats in the so called management quota cannot be permitted to be filled up from amongst candidates who do not fulfill even the minimum educational qualifications required to appear in the entrance exam. We are also prima facie of the view that before admissions could be made from amongst candidates on the basis of the qualifying examinations letters should have been sent to the persons next in merit in the HPCPMT or CBSE PMT who had not been able to get admissions on the basis of their marks obtained in the said examinations. It is only in case such candidates were not available that resort could be made to direct admissions on the basis of the result in the qualifying examination. Even while making admissions on the basis of the result obtained in the qualifying examination the minimum criteria of 50% could not have been waived. The Registry is directed to place a copy of the notification dated 24th August, 2006 alongwith a copy of this judgment in a separate file and register the same as a separate CWP titled Court on its own motion vs. State of Himachal Pradesh through Secretary (Health). Such petition be listed before this Bench on 16th July, 2007. In view of the above discussion, all the writ petitions are disposed of. The only relief granted to the petitioners is that at least 15% seats must be kept open in all the B.Ed. Colleges so that admissions can be made from the candidates from all over the country. Since the process of admissions for this year is already over 12 the direction that 15% seats shall be open for admission on All India Basis shall apply from the next academic year. However, in case after the admission process is complete in all the B.Ed. Colleges this year and it is found that seats are still lying vacant in the Colleges and no candidates are to be sponsored by the State on the basis of the written test then the Colleges may make admissions on the basis of merit from the persons fulfilling the basic educational qualifications as notified by the NCTE. While making these admissions the Colleges may also make admissions from non Himachalis. However, before doing so the Colleges shall ensure that prominent advertisements are issued in the Tribune (English Edition), Amar Ujala and Danik Bhaskar (Hindi Editions). It is only if domicile Himachalis are not available that admissions shall be made from outside the State. The Colleges shall also associate at least one representative of the State Government to be nominated by the Secretary (Education) who shall ensure that the process of admission is transparent and admissions are made strictly on the basis of merit. We may again clarify that admissions should not be given to candidates having less than 40% marks in case of candidates belongings to the scheduled castes and scheduled tribes and less than 45% marks in case of other categories. Other reliefs prayed for are rejected. With the aforesaid observations the writ petition is disposed of. However, the Registry shall separately register another CWP as already directed above. 13 In view of the disposal of the writ petition all the miscellaneous applications are also disposed of. ( Deepak Gupta ), Acting Chief Justice, July 6, 2007. ( Surinder Singh ), PV Judge