IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13645 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PRIYANKA VERMA C/O.VISHAMBHAR NATH VERMA Petitioner(s)
Versus
STATE OF GUJARAT THRO ITS SECRETARY & 3 Respondent(s)
========================================= Appearance :
MR MITUL K SHELAT for Petitioner(s) : 1, MR JANI, AGP for Respondent(s) : 1 - 3. NOTICE SERVED for Respondent(s) : 4, MR GM JOSHI for Respondent(s) : 4, ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 24 /02/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition under Article 226 of the Constitution, the petitioner, a resident of the State of Uttar Pradesh has prayed for the following reliefs:
“5. (a) Issue a declaration that the Respondents entirely lack the power, authority and jurisdiction to prohibit admission in PTC Colleges in the State of Gujarat to students belonging from other states of the Country.
(aa) Issue a declaration holding that Rule 4.1 restricting eligibility to candidates who have passed standard XII examination from schools situated in Gujarat as arbitrary discriminatory and hence, unconstitutional and be pleased to issue an appropriate writ order or directions quashing and setting aside the said Rule.
(b) Issue a writ of mandamus a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the respondents to accept the admission form of the petitioner and to consider the petitioner for grant of admission I the Respondent No. 4 College.
(c) Pending admission and final hearing the Hon'ble Court be pleased to direct the respondents to accept the admission form of the petitioner and to consider the petitioner for grant of admission in the Respondent No. 4 College.
(d) For ad-interim relief in terms of prayer (c) above.”
2. Facts relevant for the purpose of deciding this petition can be summarized as under:
2.1 Petitioner seeks to challenge the action of the State Admission Committee in refusing to consider the petitioner for admission to PTC colleges in State of Gujarat. The grievance of the petitioner is that Rule 4.1.1 framed by the State Government governing the admission to the two years' PTC course after standard 12 only permits students, who have passed their qualifying examination in a school situated in the State of Gujarat, to be considered for admission. The petitioner has challenged the legality of the said action and the validity of the said rules on the grounds enumerated hereinafter:
“1. The norms for admission to PTC course are prescribed by statutory regulations framed by the NCTE in exercise of powers under the National Council for Teacher Education Act, which specifically provide that any candidate who has passed the secondary+2 examination with 50% marks would be eligible for admission to the PTC course. The regulations having been framed under a Central Act, would prevail and the State Government cannot restrict the eligibility by providing that only students who have studied in schools within the State of Gujarat would be eligible for admission in PTC colleges in Gujarat.
2. The State of Gujarat has not earmarked any quota for students from outside state and has prescribed the eligibility criteria which restricts consideration only to students who have passed their qualifying examinations from schools within the State of Gujarat. This amounts to 100% reservation in favour of students from within the state which amounts to wholesale reservation which is declared to be unconstitutional in the judgement rendered by the Apex Court in the matter of Pradeep Jain versus Union of India (1984 (3) SCC 654).
3. The impugned rules seek to completely exclude from consideration students who have studied and passed the qualifying examination from states other than Gujarati. It is the constitutional mandate to ensure that students from other states are able to undertake education in the State. Atleast 15% seats have to be provided for such students and only thereafter reservation based on residence/institution can be provided.
4. There is no object sought to be achieved in excluding students from other states. The classification is not based on any intelligible differentia and violates the constitutional mandate of Article 14. The State has no power to act in any manner which affects or hinders the essence- and this contained in the scheme of the Constitution which is against creation of inter state barriers and/or regional pockets which would stand against the free flow of knowledge and is contrary to the basic structure of the Constitution.
5. Furthermore when the seats are vacant and no local student is prejudiced there is no purpose in denying admission to students who have passed the qualifying examination from other states and posses the eligibility as prescribed under the Central Act.”
3. We have heard learned advocate, Mr. Mitul Shelat appearing for the petitioner and learned Government Pleader appearing for the respondents. Learned Government Pleader, Mr. Jani submitted that this petition is squarely covered by a recent judgement delivered by the Division Bench of this Court in Special Civil Application No. 7406 of 2010 decided on 23.08.2010 (Coram: Hon'ble The Chief Justice S.J.Mukhopadhyay & Hon'ble Mr. Justice K.M.Thaker) Special Civil Application No. 10324 of 2010 decided on 26.04.2011 (Coram: Hon'ble The Chief Justice S.J.Mukhopadhyay & Hon'ble Mr. Justice K.M.Thaker) and Special Civil Application No. 3950 of 2010 with Special Civil Application No. 4622 of 2010 decided on 05.05.2010 (Coram: Hon'ble The Chief Justice S.J.Mukhopadhyay & Hon'ble Mr. Justice Akil Kureshi). He submitted that it has been held therein that it is competent for the State Government to frame rules prescribing domicile within the State as eligibility criteria for admission to the PTC course. We have gone through the judgements of the Division Bench referred to above and we have noticed that, in all judgements delivered by the Division Bench, there is reference of Supreme Court decision in case of Pradeep Jain Vs. Union of India [1984 3 SCC 654 and Saurabh Chaudhary Vs. Union of India [AIR 2004 Supreme Court 361]. Having gone through the ratio as laid down in Pradeep (supra.) and Saurabh (supra.), we are unable to persuade ourselves to dismiss this petition relying on the Division Bench judgements of this Court referred to above. We are prima facie of the view that the Division Bench judgements of this High Court deserve a re-look in light of the ratio as laid down in Pradeep (supra.) and Saurabh (supra.).
4. In the case of Pradeep (supra.), the Apex Court held that:
“The only question which remains to be considered is as to what should be the extent of reservation based on residence requirement and institutional preference. There can be no doubt that such reservation cannot completely exclude admission of students from other universities and States on the basis of merit judged in open competition. Krishna lyer, J. rightly remarked in Jagdish Saran's case (supra) at page 845 and 846 of the Report:
"Reservation must-be kept in check by the demands 983 of competence. You cannot extend the shelter of reservation where minimum qualifications are absent, Similarly, all the best talent cannot be completely excluded by wholesale reservation. So a certain percentage which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the alter of equalisation when the Constitution mandates for every one equality before and equal protection of the law-may be fatal folly, self-defeating educational technology and anti-national if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit-such is the dynamics of social justice which animates the three egalitarian articles of the Constitution."We agree wholly with these observations made by the learned Judge and 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 all 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. But, then to what extent can reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the university or the state be regarded as constitutionally permissible? It is not possible to provide a categorical answer to this question for, as pointed out by the policy statement of Government of India, the extent of such reservation would depend on several factors including opportunities for professional education in that particular area, the extent ofcompetition, level of educational development of the area and other relevant factors. It may be that in a State were 984 the level of educational development is woefully low, there are comparatively inadequate opportunities for training in the medical speciality and there is large scale social and economic backwardness, there may be justification for reservation of a higher percentage of seats in the medical colleges in the State and such higher percentage may not militate against "the equality mandate viewed in the perspective of social justice". So many variables depending on social and economic facts in the context of educational opportunities would enter into the determination of the question as to what in the case of any particular State, should be the limit of reservation based on residence requirement within the State or on institutional preference. But, in our opinion, such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made. The Medical Education Review Committee has suggested that the outer limit should not exceed 75 per cent but we are the view that it would be fair and just to fix the outer limit at 70 per cent. We are laying down this outer limit of reservation in an attempt to reconcile the apparently conflicting claims of equality and excellence. We may make it clear that this outer limit fixed by us will be subject to any reduction or attenuation which may be made by the Indian Medical Council which is the statutory body of medical practitioners whose functional obligations include setting standards for medical education and providing for its regulation and coordination. We are of the opinion that this outer limit fixed by us must gradually over the years be progressively reduced but that is a task which would have to be performed by the Indian Medical Council. We would direct the Indian Medical Council to consider within a period of nine months from today whether the outer limit of 70 per cent fixed by us needs to be reduced and if the Indian Medical Council determines a shorter outer limit, it will be binding on the States and the Union Territories. We would also direct the Indian Medical Council to subject the outer limit so fixed to reconsideration at the end of every three years but in no event should the outer limit exceed 70 per cent fixed by us. The result is that in any event at least 30 per cent of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit on the basis of either all India Entrance Examn. Or entrance examination to be held by the State. Of 985 course, we need not add that even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directions given in this judgment, admissions from the source or sources indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious student from within such source or sources.”
In Saurabh Chaudharay's case (supra.) the Constitutional Bench of the Supreme Court held as under:
“"However, the test to uphold the validity of a statute on equality must be judged on the touch-stone of reasonableness. It was noticed in Dr. Pradeep's Jain's case (supra) that reservation to the extent of 50% was held to be reasonable. Although subsequently in Dr. Dinesh Kumar's case (supra) it was reduced to 25% of the total seats. The said percentage of reservation was fixed keeping in view the situation as then existing. The situation has now changed to a great extent. Twenty years have passed. The country has during this time have produced a large number of Post Graduate doctors. Our Constitution is organic in nature. Being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding.
Having regard to the facts and circumstances of the cases, we are of the opinion that the original scheme as framed in Dr. Pradeep Jain's case (supra) should be reiterated in preference to Dr. Dinesh Kumar's case (supra). Reservation by way of institutional preference, therefore, should be confined to 50% of the seats since it is in public interest".
5. The ratio prima facie appears to be that in the field of higher education, State Government or any university cannot provide 100% preference or reservation for local students within the State of Gujarat and exclude completely students from other states from consideration. In our opinion prima facie, the contention of learned Government Pleader that the only prohibition imposed is for the student who have not passed their H.S.E (12th i.e. 10+2 pattern examination) or equivalent examination from a school not located in Gujarat State but incumbent can apply and consider for examination even if he or she has passed out from the university situated outside the Gujarat provided such candidate shall have passed the examination of H.S.E or equivalent from a school located in Gujarat, if accepted, is directly in conflict with the ratio of Pradeep (supra.) and Sandeep (supra.).
6. To the extent above, the impugned rules limit the admission to the students who are domiciled within the State of Gujarat may not be justified. The decisions of the Division Bench referred to above requires re-look in view of Saurabh's case (supra.) and Pradeep's case (supra.).
7. In this view of the matter, we are inclined to refer the present special civil application before a larger bench.
8. Registry is directed to place the papers of Special Civil Application No. 13645 of 2011 with this order before Hon'ble the Chief Justice for appropriate orders in the matter.
[A.L.DAVE, J.]
[J.B.PARDIWALA, J.]
JYOTI