IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 17283 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SAMIXA CHHANABHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 17283 of 2003 MR YN OZA, LD.SR.ADVOCATE WITH MR BP GUPTA .... for Petitioner No. 1 MS MITA PANCHAL, LD.AGP for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 05/05/2004 C.A.V. JUDGEMENT 1. Rule. Ms.Mita Panchal, learned AGP waives service of rule on behalf of respondents. 2. Samixa Chanabhai Patel has filed the present petition with the prayer for a direction to the respondents to fill up 15% seats in PTC course in all Government, Government aided and self-financed college during the admission programme of the 3rd stage for PTC course of the year 2003-2004. The petitioner has also prayed to direct the respondents to reserve 15% seats for S.T. candidates in Management Quota of Self-financed PTC college and further to direct the respondents to give admission to the petitioner on the abovesaid seats. 3. The respondents issued an advertisement for Primary Teachers Certificate Course ("PTC course for short") somewhere on 30-6-2003. Pursuant to the said advertisement, the petitioner has made an application for admission to PTC Course on 6-7-2003. It is also stated by the petitioner that 7% seats are reserved for Scheduled Caste category candidates, 15% seats are reserved for Scheduled Tribe category candidates and 27% seats are reserved for Socially and Economically Backward Classes category candidates. The aforesaid reservation is made for admission to all Government, Government-aided and self-financed colleges run within the Gujarat State. The respondents have published the list of the candidates belonging to the Scheduled Tribe category including the women and there were 521 students and the petitioner's name stands at Sr. No.443 in the said list. It is further stated by the petitioner that there are about 8500 seats to be filled in for PTC course and for the said purpose, the Director of Primary Education respondent no. 2 has issued Admission Programme for PTC course for the year 2003-2004. The women candidates who have secured 78.17% marks from General Stream have been called for interview because they are eligible for admission whereas the women candidates belonging to ST category having 76.67% marks or more than that are entitled for admission and they were called for interview. The respondent no. 2 has also issued 2nd stage admission programme wherein it has been stated that women candidates belonging to General Category Stream and who have passed Higher Secondary Certificate Examination in General Stream and having 77.50 marks or more than that, they will be admitted and they have been called for interview. Where the women candidates belonging to Scheduled Tribe category who have passed Higher Secondary Certificate Examination in General Stream and have obtained 76.67% marks or more than that they will be entitled to admission. The respondents have also 3rd stage programme for admission to the PTC course. In the said third stage programme, there is no separate mention for women candidates who have passed the Higher Secondary Certificate Examination from General Stream belonging to the Scheduled Tribe category but they will have to complete with the candidates belonging to General category and for that 76.83 or more than that marks are required. 4. In view of the aforesaid facts and circumstances of the case, petitioner submitted that it is incumbent upon the respondents to maintain 15% of reservation in seats to Scheduled Tribe candidates. It is further incumbent upon the respondents to issue a fresh programme for admission to 3rd stage by stating separate percentage of marks for Scheduled Tribe candidates so that no injustice is done to the petitioner and similarly situated persons. After hearing the learned advocate for the petitioner, this Court has issued notice and directed the Government to file an affidavit-in-reply on or before 15-12-2003. 4.1 Pursuant to the notice dated 15-12-2003 issued by this Court, the affidavit-in-reply has been filed on behalf of the respondent no.2 Thereafter, the petitioner has filed rejoinder affidavit on 22-1-2004. Thereafter, the matter was heard at length looking to the importance of the matter. 5. Learned Senior Counsel Mr.Yatin Oza has submitted that comparative statement of all the three admission programmes of PTC course would clearly show that the seats which are required to be filled in from Scheduled Tribe candidates have been given go-bye in the admission programme of 3rd stage as no separate category has been shown for women candidates belonging to Scheduled Tribe category. It is pertinent to note that 74.67% was the cut off marks for scheduled tribe category for women candidates in the 2nd stage programme of admission. Whereas in the third stage, the marks required are 76.83% or more, meaning thereby, no student from Scheduled Caste category who is left out from admission will be entitled to get admission in the third stage programme of admission to PTC course. It is submitted that it implies that the total number of seats which are to be filled in the third stage admission programme will be filled in from general category only and there will not be any reservation for any Scheduled Tribe candidates. It is submitted that it will be an indirect elimination of reservation from admission to PTC course from Scheduled Tribe candidates which is totally unconstitutional, illegal, arbitrary and therefore the impugned action of the respondent deserves to be quashed and set aside by this Court. 6. The learned Senior advocate further contended that the PTC admission programme for the year 2003-2004 has been made by the respondents for all the colleges including self-financed colleges and the interviews for the admission of third stage will be the last programme for admission and if the petitioner is not given protection then irreparable loss will be caused to the petitioner. It is submitted that the petitioner has secured 74.33% marks and the petitioner was waiting for her chance for admission as in the second stage programme of admission, the cut off marks for scheduled tribe category for women candidates from general stream was 74.65% but now due to the alleged illegality committed by the respondents by mentioned 76.83% marks as cut off marks for women candidates, the petitioner will not get any chance for admission and therefore the respondents are required to be directed to issue new programme for PTC course examination in the third stage mentioning the percentage of marks for each category separately and the petitioner may be called for interview and may be given admission. 7. The learned Senior Advocate further contended it is incumbent upon the respondents to maintain 15% of reservation in seats to Scheduled Tribe candidates and for that purpose it is also incumbent upon the respondents to issue a new programme for admission of third stage by mentioning separate percentage of marks for scheduled tribe candidates so that no injustice is caused to the petitioner and similarly situated persons. 8. Mr. Yatin Oza, Learned Sr. Advocate with MR.B.P.Gupta, learned advocate for the petitioner has invited my attention to Article 15 of the Constitution of India which provides as under : "15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth : (1) The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them. (2) ....... (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes" 9. The learned Senior Counsel has further submitted that the action of the respondents is against the constitutional mandate enshrined under Article 15 of the Constitution of India. It is also submitted by him that imparting education is a sovereign function and the State while discharging the same is required to be adhere to the constitutional provisions. The Government by not providing for the reservation for scheduled tribe category to the tune of 15% in management quota in S.P.C. is therefore bad and illegal and therefore the respondents are required to keep 15% seats reserved for scheduled tribe candidates in management quota seats and to give admission to the petitioner on the said seat. 10. Ms. Mita Panchal, learned A.G.P. appears on behalf of the respondents. She has relied on the affidavit-in-reply filed by one V.B. Nanavati, Dy. Director, Primary Education, on 15-12-2003. In the said affidavit-in-reply Gujarat Educational Institutions (Pre-Primary and Primary Teacher Training Colleges) Rules, 1984 are quoted, the relevant portion reads as under : "The minimum qualification ___ in case of Primary Teachers Training: Provided that in case of Primary Teachers Training Course, out of total seats 70% seats shall be allotted to candidates from General, Commerce, Vocational and Uttar Buniyadi Stream, 30% of seats shall be allotted to candidates from Science stream in ratio proportionate to successful candidates in respective stream in Higher Secondary School." 10.1 It is further stated in the said affidavit-in-reply filed on behalf of the respondents that 70% seats are allotted to candidates from General, Commerce, Vocational and Uttar Buniyadi Stream, and 30% seats are allotted to candidates from Science Stream proportionately based on the number of students passing in the said streams. Thereafter, as per regulations number of seats for scheduled tribe, scheduled caste and socially and economically backward class is calculated i.e. 7% for Scheduled Caste, 15% Scheduled Tribe and 27% for SEBC. The procedure followed for different categories is shown in the flow chart, which is as under: CHART SHOWING THE ALLOTMENT OF SEATS IN PTC COURSE. Govt. + Govt. aided colleges No.-aided private Colleges | | | | | ___________________________ | | | | 50% Govt.. quota 50% Management | | Quota | _______________________| | | Number of Seats available for Disposals as per Govt. regulations. | | ______________________________________________________ | | | | Seats for Girls Seats for boys (Girls colleges + seats in co-ed) (Boys colleges + seats | in co-ed) | _________________________________________ | | | | 70% seats for General, Commerce 30% for science stream & Vocational. | | | __________________________ | | | | | | | 97% for normal 3% for handicapped 97% for normal 3% for handicapped | | | | | | | ______________ | | ______________ | | | | ________________ | | | 7% for SC | 27% SEBC | | | | 7% for SC | 27% for SEBC | | | | | | | | 7% for SC | 15% for | | | | ST 15% for ST | | | | | 27% for SEBC 15% for ST | | ________________________ | | | 7%SC | 15% ST | | 27% for SEBC 10.2 On relying upon the aforesaid chart, learned A.G.P. After showing to this Court the aforesaid chart, learned A.G.P. submitted that total number of seats available for female candidates for all the streams and its categorization, total seats are 4432 = 12 for Dang region + 1325 Management quota SFI + 3095 Govt. quota in SFI & Govt. colleges & Govt. aided colleges. The schedule and the table showing the seat no. is as under:- ------------------------------------------------------------------- Total Normal Handicapped seats ------------------------------------------------------------------- Open SC ST Baxi Open SC ST Baxi panch panch ------------------------------------------------------------------- Science 910 450 62 132 238 17 1 3 7 Stream General 2113 1058 141 305 545 35 4 8 17 Stream Uttar 29 15 2 4 7 1 - - - Buniyadi Voca- 43 21 3 6 11 2 - - - tional Stream ------------------------------------------------------------------- 10.3 After referring to the aforesaid chart/schedule ld.A.G.P. submitted that in science stream as the required number of candidates were not available in the ST category, 61 seats of the said category are converted into open category as per Rule 5.6 of the prospectus. It is further submitted by the learned A.G.P. that as per Regulation 5.5 reserved category candidate is first offered admission in open category on the basis of his marks obtained. In the First round held from 1-11-2003 2003 female candidates of ST category till merit number 360 were called for interview. On 5-11-2003 the candidates at Sr. No.347 having 74.67% in H.S.C. and 64.29% in S.S.C. filled up the last seat of female for ST category. Thereafter two seats in the ST category for female fell vacant and therefore the candidates at merit nos. 348 and 349 having 74.69 marks in HSC and 64.14% marks in SSC were given admission. In view of the above mentioned circumstances, there was variation in the marks in the first and second round of interviews. Therefore, last seat for female category in ST class was filled up by candidate on 6-12-03 at Sr. No.349 having 74.67% marks in HSC and 64.14% marks in SSC. 10.4 After pointing out the aforesaid facts, learned A.G.P. has submitted that as per seats of Government quota in self-finance institution had fallen vacant as well as Association of SFI colleges had requested the Government to fill up the management quota seats through Centralized Admission Committee it became necessary to issue an advertisement for third round. The candidates from open category as well as the candidates of reserved category who did not fall in the zone of consideration in open category in earlier two rounds are called for interview for seeking admission in open category. The learned A.G.P. for the respondent State submitted that in the third round as the reserved category candidates were competing for the open category seats in the advertisement no bifurcation is made for the reserved category and the marks required are also higher. The learned A.G.P. submitted that as the last admission for female in ST category has stopped at merit number 349 having 74.67% marks in HSC and 64.14% marks in SSC the petitioner cannot be given admission in the said category as the petitioner stands at merit no. 445 and she has obtained 74.33% in HSC and 67.29% in SSC. In view of the aforesaid facts and circumstances of the case, the petitioner is not entitled to get admission in PTC course and hence the present petition requires to be rejected. 10.5 Learned A.G.P. further submitted that in the third round for reserved category for ST candidates, ST candidates bearing merit No.ST 34 to 43 & merit No.44 to 46 were called for admission on 12-12-2003, 13-12-2003 and 14-12-2003 respectively as these candidates have already taken admission in first and second round. In their own category and now they have been eligible for admission in open category and therefore the merit percentage 76.83 (77.43) for 13-12-2003 and 76.83% (73.71%) for 14-12-2003 are shown in the advertisement. 11. The petitioner has filed rejoinder affidavit denying the averments and contentions made by the respondents in the affidavit-in-reply. The petitioner has also stated in this rejoinder affidavit that the seats of management quota i.e. 50% of the total seats of non-aided private colleges are also required to be filled in after keeping the reservation of 7% for Scheduled Caste, 15% for Scheduled Tribe and 27% for SEBC candidates. The respondents have not filled in the seats of management quota by keeping reservation for reserved category candidates and thus the respondents have committed illegality. The action of the respondents in not keeping any seats reserved for SC, ST and SEBC categories in the management quota seats in Government recognized self-finance college is against the constitutional mandate enshrined in Article 15 of the Constitution of India. 11.1 The learned counsel for the petitioner has also relied upon judgment of Hon'ble Apex Court in the case of Dr.Preeti Srivastava and another Vs. State of Madhya Pradesh and others reported in AIR 1999 SC 2894. In para 12 and 13 on page 2903 and 2904 the Hon'ble Apex Court observed as under: 11.1A "para 12 Article 15(4), which was added by the Constitution, First Amendment of 1951, enables the State to make special provisions for the advancement, inter alia, of Scheduled Castes and Scheduled Tribes, notwithstanding Articles 15(1) and 29(2). The wording of Article 15(4) is similar to that of Article 15(3). Article 15(3) was there from inception. It enables special provisions being made for women and children notwithstanding Article 15(1) which imposes the mandate of non-discrimination on the ground (among others) of sex. This was envisaged as a method of protective discrimination. This same protective discrimination was extended by Article 15(4) to (among others) Scheduled Castes and Scheduled Tribes. As a result of the combined operation of these Articles, an array of programmes of compensatory or protective discrimination have been pursued by the various States and the Union Government." 11.1B "para.13 Since every such policy makes a departure from the equality norm, though in a permissible manner, for the benefit of the backward, it has to be designed and worked in a manner conducive to the ultimate building up of an egalitarian non-discrimination society. That is its final constitutional justification. Therefore, programmes and policies of compensatory discrimination under Article 15(4) have to be designed and pursued to achieve this ultimate national interest. At the same time, the programmes and policies cannot be unreasonable or arbitrary, nor can they be executed in a manner which undermines other vital public interests or the general good of all." 11.2 The learned counsel relied upon the decision of the Supreme Court in the case of NTR University of Health Sciences, Vijaywada V. G. Babu Rajendra Prasad and Another, reported in 2003 (5) SCC 350, wherein it is observed as under : 11.2.A "13 : Articles 15 and 16 of the Constitution of India provide for enabling provisions. By reason thereof the State would be entitled to either adopt a policy decision or make laws providing for reservation. How and in what manner the reservations should be made is a matter of policy decision of the State. Such a policy decision normally would not be open to challenge subject to its passing the test of reasonableness as also the respondents of the Presidential Order made in terms of Articles 371-D of the Constitution of India." 11.2(B) "para 14 on page 360 :- It is not in dispute that limited seats are available for admission in the superspeciality courses. It may be true that normally the reservation has to be made for the entire State but in terms of Article 371-D of the Constitution of India reservation has to be made regionwise. The seats have been reserved indisputably on total available seats in each discipline and those who come within the zone of consideration are considered for admission from amongst the reserve category candidates. Once it is found that reservation has been made for the reserved-category candidates on the total number of seats available in each course, the High Court must be held to have committed a manifest effort in issuing the impugned direction." 11.2(C) The learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Islamic Academy of Education and Another Vs. State of Karnataka and others reported in 2003 (6) SCC 697. The said judgment of the Hon'ble Supreme Court has been delivered by the Hon'ble Chief Justice of India himself and S.V. Variava, K.G. Balakrishnan, Arjit Pasayat and S.B. Sinha, JJ and the same is to be called as majority judgment. In para 21 at page 730 of the above Judgment in the case of Islamic Academic of Education (supra), the Hon'ble Supreme Court has observed as under: 11.2(D) "Para 21 - So far as the year 2003-2004 is concerned, time is running out as the outer time-limit for admission is fast approaching or has gone. To meet the urgent situation without going into the issues involved in the various petitions/applications, we direct that the seats be filled up by the institution and the State Governments in the ratio 50:50. However, if by any interim order, this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the time constraint this arrangement has been made, without deciding the contentious issue involved in various pending cases." 11.2(E) Thereafter, in concurring judgment of the Hon'ble Mr. Justice S.B. Sinha, has considered the submissions made on behalf of the petitioners/applicants in para 36 of the said judgment of Islamic Academic of Education more particularly on page 734 at para 36 (II) (iii) In the case of unaided institutions. In this very judgment of Islamic Academic of Education, at page 749 in para 70 (b) as under : 11.2(F) "70 - With a view to appreciate the extent to which the scheme formulated in Unni Krishnan was not found favour with T.M.A. Pai Foundation we may set out the observations of this Court in T.M.A. Pai Fecundation as follows : 11.2(G) 70 (b) - Certain percentage of seats can be reserved for admission by management out of those students who have passed the common entrance test held by itself or by the State agency and the rest of the seats may be filled up on the basis of counselling by the State Agency. Prescription by percentage has to be determined by the Government according to local needs. 11.2(H) "3. Reservation of seats : While the State has a right to prescribe qualifications necessary for admission, private unaided colleges have right to admit students of their choice subject to objective and rational procedure of selection and the compliance with the conditions, if any, requiring admission of certain percentage of students belonging to weaker sections by granting them free scholarships or scholarships if not granted by the Government. 11.2(I) As regards reservation in connection with Article 15 of the Constitution of India, the learned Judge has considered this question in paragraphs no. 118, 129, 131, 146, which read as under : 11.2(J) "para 118 - Human history would show that the struggle of man for democratic polity was inspired by a desire to achieve equality among them. Indeed, some of the world constitutions in their preamble abhor inequality and proclaim to achieve equality in all respects. Whatever may be the power and the jurisdiction of the State and the State authorities to make a special provision in favour of the backward and the downtrodden, when the court tests the reasonableness of such distinctive State action, it should be done by posing a question whether such State action to ameliorate social economic and political poverty; whatever be the reason, delays the journey towards the proclaimed goal of equality. If a measure tends to perpetuate inequality and makes the goal of equality a mirage, such measure should not receive the approval of the Court. The Court, in such circumstances, has to mould the relief by indicating what would be the reasonable measure or action which furthers the object of achieving equality. The concept of equality is not a doctrinaire approach. It is a binding thread which runs through the entire constitutional text. An affirmative action may, therefore, be constitutionally valid by reason of Articles 15 (4) and 16 (4) and various directive principles of State policy, but the Court cannot ignore the constitutional morality which embraces in itself the doctrine of equality. It would be constitutionally immoral to perpetuate inequality among majority people of the country