JUDGMENT Arun Tandon, J.
1. Heard Sri U. N. Sharma Senior Advocate, assisted by S-A Suneet Kumar Advocate, on behalf of the petitioners, Sri P.S. Bughel Advocate on behalf of respondent nos. 3 and 3, Sri K. C. Sinha, Assistant Solicitor General of India on behalf of Union of India.
Facts
2. Petitioner no. 1. Sanjay Tiwari claims himself to be the Ex President of Students Union of Allahabad University, while petitioner no, 2 is an student seeking admission as regular student in B.A.-I in Allahabad University for the academic session-2005-06.
3. The Allahabad University was incorporated under the provisions of Allahabad University Act, 1921. The said Act was, however repealed under Section 74 of the U.P. State Universities Act, 1973 (hereinafter referred to as Act, 1973). Section 49 of the 1973 Act provides for framing of the Statutes by the University in respect of various subject matters enumerated therein. Section 51 of me 1973 Act confer a power to frame Ordinances, without prejudice to the generality of the provision, in respect of subject matters as enumerated under sub-clause (2). Relevant portion whereof reads as follows :
"51. Ordinances.-! 1)...
(2)Without prejudice to ,the generality of the provisions of sub-section (1), the. Ordinances shall provide for the following matters, namely-
(a) the admission of students to the University and their enrolment and continuance as such;"
4. The procedure for making the Statutes and the Ordinances has been provided for under Section 50 and 52 respectively of the 1973 Act. I
5. Parties agree that under the First Statutes, or under the Ordinances so framed by the Allahabad University, no provision has been made for providing any reservation in respect of Scheduled Castes, Scheduled Tribes, Other Backward Classes or for any other category of students in respect of admission to various courses of the University.
6. The State Legislature, however, by means of U.P. Act No. 20 of 1994 added Sub-section (5) to Section 28 of the 1973 Act. which reads as follows:
" 28. Admissions Committee.-(I) There shall be an Admission Committee of the University, the constitution of which shall be such as may be provided for in the Ordinances.
(2)..."
(3)..."
(4)...
(5)Notwithstanding anything contained in any other provision of this Act,-
(a) reservation of seats for admission in any course of study in University, Institute, constituent college, affiliated college or associated college for the students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens may he made and regulated by such orders as the State Government may, by notification, make in that behalf:
Provided that reservation under this clause shall not exceed fifty per cent of the total number of seats in any course of study:
Provided further that reservation under this clause shall not apply in the case of an institution established and administered by minorities referred to in clause (]) of Article 3G of the Constitution:
Provided also that the reservation under this clause shall not apply to the category of Other Backward Classes of citizens specified in Schedule 11 to the Uttar " Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994,--
(b) admission to medical and engineering colleges and to course of instruction for degrees in education and Ayurvedic or Unani systems of medicine (including the number of students to be admitted), shall subject to clause(a), be regulated ! by such orders (which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may by notification, make in that behalf:
Provided that no order regulating admission under this clause shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice.
(C) in making an order under clause (a), the State Government may direct that any person who wilfully acts in a manner intended to contravene, or defeat the purposes of the order shall be punishable with imprisonment for a term not exceeding three months or with fine not exceeding one thousand rupees, or with both, as may be specified in the order."
7. In exercise of powers under Section 28(5) of the 1973 Act. the State of U.P. issued The Uttar Pradesh State Universities (Peservation in Admission for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Order, 1994 (hereinafter referred to as Reservation Order, 1994. The Reservation Order, 1994 provided for categories as well as extent of reservation to various courses to the University. Relevant portion of Clause-2 reads as follows:
"2. (1) Subject to the provisions of Sub-section (5) of Section 28 of the Uttar Pradesh State Universities Act. 1973, with effect from the academic session of 1994-95, following percentages of seats in any course of study in a University, Institute. Constituent College. Affiliated college or Associated college shall be reserved for admission for the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, namely:-
8. It is not in dispute that the University of Allahabad has been following the reservation so provided for in respect of Scheduled Castes, Scheduled Tribes and Other Backward Classes students to the extent provided under the said Reservation Order, 1994 regularly in respect of the various academic courses' seats in the University
9. For the academic year 2005-06, the Allahabad University (when it was still covered by the provisions of 1973 Act) published an advertisement for holding an entrance examination for admission to the various undergraduate courses "run by the Allahabad University commonly known as UGAT-2005, In the brochure so published tor the entrance examination, it was provided in Clause-2 that in accordance with the reservation Order of 1994, referred to above, there shall be. reservation in respect of Scheduled Castes 21%, Scheduled Tribes 2% and Other Backward Classes 27% for admission in various courses. In pursuance of the said advertisement, entrance, examination did take place and the result of the said examination was also declared.
10. However, before the admission could commence, the Parliament, with the assent of the President, enacted The University of Allahabad Act, 2005 (Act No. 26 of 2005). Sub-section (2) of Section 1 of the. said Act of the Parliament provided that the Act No. 26 of 2005 could "come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. In exercise of powers under Section 1(2) of the said Act, the Centra1 Government by notification dated llth July, 2005 appointed 14th Day of July 2005 as the date on which all the provisions of the Act No. 26 of 2005 snail come into force. With the issuance of the said notification, The University of Allahabad Act, 2005 has come into force and in view of Section 2 of the said Act, the University of Allahabad in the State of U.P. is now declared to be an institution of national importance, University of Allahabad as such is covered by Entry No. 63 of list-! of Seventh Schedule to the Constitution of India and therefore it is now only the Parliament which has a right to legislate in respect of the said institution of national importance. Section 4 of the said Act that the University of Allahabad in the State of Uttar Pradesh, established under the Uttar Pradesh State Universties. Act, 1973, snail be established as a body corporate under this Act (Act No.26 of 2005) having perpetual succession and a common seal. Meaning thereby, that the University of Allahabad has now become a Central University. Section 4 of Act No. 26 of 2005 is being quoted herein below:
"4(7) The University of Allahabad in the State of Uttar Pradesh, established under the Uttar Pradesh State Universities Act, 1973, shall he established as a body corporate under this Act having perpetual succession and a common seal and shall sue and be sued by the said name.
(2)The first Chancellor, the first Vice-Chancellor and, the first members of the Court, the Executive Council and the Academic Council, and all persons who may hereafter become such officers of members, so long a they continue to hold such office or membership, shall constitute the University.
(3)The headquarters of the University shall be at Allahabad.
11. Section 29(1)(a) and 29(2) of the Central Act (Act Mo. 26 of 2005) provides as follows:
"29.(1) Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters, namely:-
(a) the admission and enrolment of students to the University and institutions maintained by or admitted to the privileges of the University;
(b)...
(c)...
(d)...
(e)...
(f)...
(g)...
(h)...
(i)...
(j)...
(k)...
(l)...
(m)...;
(n)...
(2)The first Ordinances shall be made by the Vice-Chancellor. with the previous approval of the Central Government and the Ordinances so made may be amended, repealed or added to at any-time by the Executive Council in the manner prescribed by the Statutes."
12. In view of the said provisions, admission to the various courses of the Central University can now be made only in accordance with me Ordinances to be framed under Section 29 of the Act. Section 44 of the Central Act provided further that every Statute, Ordinance and Regulation made under the Act shall be published in the Official Gazette and shall be laid before each House of the Parliament, while it is in session. Section 45(2), however, takes care of entregiium so long as first Statutes, Ordinances and Regulations under the Central Act are not framed by the University. Section 45(1) and 45(2) are read as follows:
"45:(1) Notwithstanding anything contained in this Act and the Statutes, -
(a)...
(b)...
(c)...
(d)...
(2) Till such time as the first Ordinances are not made under sub-section (2) of section 29, in respect of the matters that are to be provided for by the Ordinances under this Act and Statutes, the relevant provisions of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Uttar Pradesh State Universities Act, 1973 shall be applicable insofar as they are not inconsistent with the provisions of this Act and the Statutes."
13. It is further not in dispute between the parties that till date no Statutes or Ordinance under Section 29 of the Central Act has yei been framed by the Allahabad University for regulating the admission and enrolment of students to the various courses of the University. The University for granting admission in pursuance of the entrance examination held by it, prior to enforcement of Act No. 26 of 2005, published a time table for admitting the students to various undergraduate courses. The starting date for such admissions has been notified as 18th July, 2005..
14. It is at this stage the petitioners, referred to above, have approached this Court with the plea that the University is not entitled to grant admission to the candidates to the undergraduate courses on the basis of the reservation provided to Other Backward Classes category candidates to the extent of 27% under the Reservation Order of 1994. The petitioner has basically questioned the applicability of the reservation which has been provided to Other Backward Classes candidates to the extent of 27% in various courses of Allahabad University on the strength of the Reservation Order, 1994, subsequent to enforcement of Act No. 26 of 2005.
Contentions
15. On behalf of the petitioner it is contended that with the enforcement of Act No. 26 of 2005,, the University of Allahabad has now become a Central University and has been declared to be an institution of national importance. As such, is covered by Entry No.63 of List-1 of the Seventh Schedule to the Constitution of India. Accordingly, it is only the Parliament, under Article 246 of the , Constitution of India, which can now frame any laws in respect of such an institution. It is therefore submitted that the provisions of The U.P. State Universities Act, 1973 including Section 28(5) and the Reservation Order, 1994, issued in exercise thereof by the State Government, cease to have any application, so far as admission to various courses of Allahabad University are concerned, subsequent 10 the enforcement of Central Act of 2005 to be precise w.e.f. 14th July, 2005. Therefore, the merit list prepared by the University; in- pursuance of the entrance examination conducted prior to the enforcement of Act No. 26 of 2005, is liable to be revised to the extent reservation has been provided to Other Backward Classes category candidates.
16. Learned Counsel for the petitioner submits that under Section 45(2), the legislature has provided that in respect of subject matter" for which Ordinances have not been framed under Section 29 of the Central Act, the provisions of the Statutes and Ordinances made immediately before the commencement of the Central Act under the provisions of The UP. State Universities Act, 1973, shall be applicable insular as that are not in consistent with the provisions of the Central Act -and the Statutes. The Reservation Order of 1994, which has been issued by the State of U.P. in exercise of powers under Section 28(5) of the U.P. State Universities Act, 1973, has not been saved and therefore the reservation provided thereunder cannot now be applied for admission to the various courses of Allahabad University. In the alternative it is contended that in, respect of any other Central University situate in the State of U.P. namely Banaras Hindu University, Vananasi, Aligan. Muslim. University, Aligarh, Baba Bhimrao Ambedkar Central University Lucknow, no provision for reservation of seats for admission to various courses favour of Other Backward Classes has been provided and there is no statutory provision applicable to Central Universities providing for reservation in favour of Other Backward Clares category students. Counsel for the petitioner therefore contends that the merit list prepared in pursuance of the entrance examination must be redone and admission may be granted after excluding the reservation of 27%, which has been provided for in respect of Other Backward Classes category candidates. Counsel for the petitioner clarifies that inclusion of a student in the merit list does not confer any right, as has been held by the Hon'ble Supreme Court in the judgment reported in AIR 1992 S.C. 1612; Shankarasan Das v. Union of India, ; State of Uttaranchal and Ors. v. Sidharth Srivastava and Ors. The State Act and order passed thereunder cease to have application on parliamentary enactment, unless they are saved by the Parliamentary Act. Reference- ; Medical Council of lndia v. State of Karnataka and Ors. (paragraph 24, 25, 2C, 27 and 28). ; Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (Paragraph-12), Learned Counsel for the Allahabad University, in reply submits that on the date the advertisement was made, selections were held find merit list was notified, the provisions of the Parliamentary Act No. 20 of 2005 have not been enforced and University of Allahabad was still within the purview of U.P. State Universities Act, 1973 and accordingly the Reservation Order, 1994, issued in exercise of powers under Section 28(5) by the State Government was binding upon the Allahabad University, therefore the candidates who had been so select against reserved posts are entitled to be admitted against the respective courses. Learned Counsel for the Allahabad University submits that the rules? enforced at the time of initiation of selection process have to be applied till the conclusion of selection process and any change in the rules subsequent to the commencement of selection process, will have no application in the admission process. In support of the said contention, the respondent has placed, reliance upon the judgment of Hon'ble Supreme Court reported in the case of P. Mahendran v. State of Kamataka; 1990(1) SCC 441 and Anti Devin Kutty v. Karnataka Public Service Commission . On the strength of the said judgment it is submitted that change in the reservation policy subsequent to the commencement of the selection, cannot obstruct the admissions on the basis of the result already declared by the Allahabad University.
In the aliternative it \z submitted that the Reservation Order, 1994, issued by the State Government in exercise of powers under Section 28(5) of the Act, 1973 has necessarily to be read as part of the Statutes and the Ordinances which regulated tne ' admission prior to the Allahabad University being declared a Central University and, as such, the Reservation Order of 1994 is a"!"G saved by Sub-section 2 of Section 45 of the Central Act, being part and partial of the same scheme regulating admissions. Lastly it is contended by the learned Counsel for the Allahabad University that the candidates, who have already been granted admission to various courses of the Allahabad University on the basis of the reservation provided tor under the Reservation Order, 1994 are not before this Court and therefore no order adversely affecting their rights may be passed. Even otherwise it would be wholly inequitable to disturb the admission, already granted, at this stage inasmuch as if any adverse orders are passed by this Court affecting the admission already granted, the entire process of examination would be required to be undergone afresh, which may not only result in loss of public money but it also likely to cause loss oi time, which may run into months and thereby adversely affect the entire academic session of the university. Such a situation cannot be said in the interest of the students as a whole and that to at the instance of petitioners, who are two in number only.
17. I have heard counsel for the parties and have gone through the records of the writ petition.
18. In order to appreciate the contentions raised on behalf of the parties, it would be worthwhile to reproduce Sectior 2 of The University of Allahabad Act, 2005 (Act No. 26 of 2005), which has been enforced under the notification dated 11th July, 2005 w.e.f 14th July, 2005:-
"2. Whereas the objects of the University of Allahabad in the State of Uttar Pradesh are such as to -make it an Institution of national importance, it is hereby declared that the said University is an Institution' of national importance."
19. With the declaration so made under an Act of Parliament, the Allahabad University is now an institution of national importance covered by Entry 63 of List I to the Seventh Schedule of the Constitution of India, which-reads as follows:-
"63. The institutions known at the commencement of this Constitution as the Banaras Hindu University, the Aligarh Muslim University and the Delhi University; the University established in pursuance of article 371E; any other institution declared by Parliament by law to be an institution of national importance.
20. Under Article 245 read with Article 246 of the Constitution of India it is only the Parliament which can frame laws in respect of subjects enumerated in List 1 in the Seventh Schedule. For ready reference Article 246 of the Constitution of India reads as follows:
"246. Subject-matter of laws made by Parliament and by the Legislatures of States.-(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"),"
21. Section 9 of the Act No. 26 of 2005 confers a power upon the Allahabad University itself to make special provisions for employment or admissions for the women, physically handicapped or for persons belonging to the weaker sections of the society and. in particular, for the Scheduled Castes and the Scheduled Tribes. Section 9, of the Act No. 26 of 2005 is being quoted herein below:
"9. The University shall be open to all persons of either sex and of whatever caste, creed, race or class and it shall not be lawful for the University to adopt or impose on any person, any test whatsoever of religious belief or profession in order to entitle him to be appointed as a teacher of the University or to hold any office therein or be admitted as a student in the University or to graduate thereat or to enjoy or exercise any privilege thereof:
Provided that nothing in this section shall be deemed to prevent the University from making special provisions for the employment or admission of women, physically handicapped or of persons belonging io the weaker sections of the society and, in particular, of the Scheduled Castes and the Scheduled Tribes."
22. The counsel for the Allahabad University has fairly stated that till date the Allahabad University has not exercised its power under proviso to section 9 of the Central Act and has therefore not framed any special provision for reservation being provided to Other Backward Classes in respect of admission to various courses of the University.
23. It cannot be disputed that with the enforcement of Act No, 26 of 2005, the State Legislature of Uttar Pradesh has absolutely no competence to frame any law in respect of the Subject matter enumerated in Entry 63 of the Constitution of India i.e. Allahabad University, which necessarily includes mode and manner of admission to various courses offered by the said University. By necessary implication, the provisions of the Reservation Order of 1994 cease to be applicable by operation of law to the Allahabad University subsequent to its being incorporated under the provisions of he Parliamentary Act No. 26 of 2005. There being no other provision under the Central Act or under the Statutes or Ordinances framed under the Central Act as of date providing for reservation to Other Backward Class category students in respect of admission to academic courses of Allahabad ' University, the contention raised on behalf of the petitioner students it; liable to be accepted to the extent that with the enforcement of Central Act No. 26 of 2005 there can be no reservation for Other Backward Classes category candidates for admission in the courses offered by the Allahabad University on the strength of Reservation Order of 1994. it may be, however, clarified that under Section 29(1) it is open to the University to frame Ordinances to provide for such reservation if permissible under the law or the University can exercise its powers under Section 9 proviso for the purpose. At this stage this Court is not called upon to examine the aforesaid aspect of the matter any further inasmuch as till date no such Ordinance/Notification framed by the Allahabad University (Central University)has been bought on record.
24. So far as Section 45(2) of the Act No. 26 of 2005 is concerned, as already noticed herein above, it provides that so long as Statutes and Ordinances are not framed in respect of subject matter provided for under the Central Act, the Ordinances and Statutes framed under the State Universities Act, immediately preceding the date of enforcement of Central Act would continue to applicable. The Reservation Order, 1994 framed by the State Government is not referable to any of the Statutes or the Ordinances framed by the Allahabad University under the State Universities Act, 1973. The Reservation Order, 1994 has been issued by the State Government in exercise of under Section 28(5) of the State Universities Act, it can neither be termed to a Statute nor can it be called an Ordinances. The power to frame Statutes and Ordinances has been provided for under Section 50 and 52 of the State Universities Act respectively.
25. It is settled principle of law that law making authority is deemed to know all the facts and the existing provisions. Thus, the Parliament at the time of framing section 49(2) is deemed to be aware of the Reservation Order of 1994 issued by the State of. U.P. in exercise of powers under Section 28(5) of the , State Universities Act. The Parliament has not chosen to save the said Reservation Order of 1994 under Section 45(2) of the Central Act.
26. In the opinion of the Court, the Reservation of order of 1994 issued by the State Government in exercise of powers under Section 28(5) of the State Universities Act cannot be said to be the extended power to frame the Statutes or Ordinances under Section 50 and 52 of the State Universities Act nor the Reservation Order of 1994 can be said to be part and parcel of the Ordinances/Statutes regulating the admission to various courses of the University. Accordingly, this Court, has no hesitation to hold that the reservation order of 1994 cease to have any application whatsoever with regards to reservation provided to Other Backward Classes category students to various academic courses, of Allahabad University subsequent to enforcement of Act No. 26 of 2005.
27. At this stage it would also be appropriate to deal with the contention raised on behalf of the respondent, namely that the rules, including reservation provided, "as applicable at the time of initiation of the selection process i.e. publication of the advertisement must necessarily be applied till the admissions are granted and therefore any change of reservation policy subsequent to the selection process having commenced cannot effect the earmarked vacancies for Other Backward Classes being done away with. The principle of law relied upon by the respondent counsel with reference to the judgment of Hon'ble Supreme Court in the case of P. Mahendran v. State of Karnataka (Supra) is not in dispute, and the Hon'ble Supreme Court has repeatedly held that rules enforced at the time of initiation of selection process have to be applied till the completion of the process, including reservation. However, it is to be seen in the facts of the case as to whether rules; which were enforced at the time of initiation of the process for admission by the Allahabad University, when it was covered by the State Universities Act would still continue to regulate the procedure for admission atter the Allahabad University has been declared to be a Central university. For appreciating the said contention, it would be worthwhile to point out that admittedly the advertisement made by the Allahabad University under the State Universities Act cannot be said to be an advertisement for admission to the various courses of Centra! University, which is altogether different legal entity incorporated, and declared as such by Section 4 of the Act No. 26 of 2005. Similarly, the reservation provided for in respect of Other Backward Classes candidates under Reservation Order of 1994 by the State Government in exercise of powers under Section 28(5) cannot be said to be made applicable for reservation in admission to the various courses of the Central University inasmuch as under the Act No, 26 of 2005 it is for the University, under Section 9 proviso or through its Ordinances, to regulate the procedure for admission including reservation, if any, to be provided for.
28. It is thus open to the Allahabad University (Central University) to frame special provisions for admission of Other Backward Classes category candidates. The Reservation Order, 1994 issued by the State Government cannot be said to be the reservation provided or by the Allahabad University (Central) Under Section 9 of the Act No. 26 of 2005. The Allahabad University (Central) was not in existence when the process for admission to undergraduate courses was initiated under the State Universities Act. The Central University has to take its own decision with regard to the special provisions to be framed tor grant of admission to various courses in respect of the weaker sections of the society along with other categories as mentioned in Section' 9 of the Act, 2005, It has to lay down its own rules and procedure for regulating the admission and therefore the selections made under the previsions of the State Universities Act, including the reservation order issued under
29. Section 28(5) of the State Act, cannot be said to be binding upon the Central University,
30. In the opinion of the Court, the reservation policy of the State of U.P., including the Order 1994, cannot over ride the provisions of the Parliamentary Act No. 26 of 2005. It is now for the Central University to frame its. own policy to meet the requirements of weaker sections, as contemplated by Rules 9.
31. More akin to the problem, which is up for consideration before this Court, is the dispute which was subject matter of cons' aeration before the Hon'ble Supreme Court of India in the case of State of Uttaranchal v. Sidharth Srivastava and Ors.< [(2003) 9 SCC 33& wherein the facts were, that the U.P. Public Service Commission published an advertisement inviting applications for 544 posts of Junior Engineer. The result of the selection was published on 4th January, 2000. The Commission forwarded its recommendation to the State Government on 30,10.2000. Before the recommendation could be acted upon, the separate State of Uttaranchal came into existence On 9.11.2000. The U.P. Government forwarded the recommendation of its Public Service Commission in respect of the posts in hill cadre to the State of Uttaranchal for necessary appointments being offered to the selected candidates. The Government of Uttaranchal refused appointment to the selected candidates. After' litigation before the Hon'ble High Court, the matter was considered by the Hon'ble Supreme Court of India. It would be sufficient for our purposes to rep'roduce relevant portion of paragraph 21, 22 and 24 of the judgment in the case of State of Uttaranchal v. Sidharth Srivastava and Ors. (supra), which is being quoted herein below:
21... It cannot also he contended thai the State; of Uttaranchal has no right to have its own reservation policy to meet the requirements of the new state having due regard to various factors. Moreover when the selection made by U.P. PSC itself, as already stated above, is not for the State of Uttaranchal and it has no legal or binding effect to compel the State of Uttaranchal to appoint the selected candidates, the question of applying reservation policy as embodied in the U.P. Act of 1994 does not arise.
22...it may also be added here itself that a person placed in the merit list of selected candidates has no indefeasible right to be appointed as held by this Court. No doubt, there cannot be an arbitrary refusal to appoint a selected candidate. In the instant case, the action of the State of Uttaranchal must be indued with reference to the creation of a new State and its functions, obligations and duties to make appointments to the publict services within the State on the basis of the recommendations of the Public Service Commission of,., the State. As is clear from the facts in the present case, there was no advertisement by the State of Uttaranchal, no rules were framed by the State of Uttaranchal, no selection was made by the Public Service Commission for the State of Uttaranchal. Hence, the State of Uttaranchal was not obliged to make appointment of the non-official respondents on the basis of the selection made by U.P. PSC even though the recommendations were forwarded to the State of Uttaranchal. On the facts it is not a case where the Government of Uttaranchal has refused to make appointments arbitrary.
24. It was also urged on behalf of the non-official respondents that the selection and appointment has to be made in accordance with the rules in force at the time of initiation of the selection process i.e. publication of advertisement and, therefore, change of reservation policy subsequent to the selection cannot come in the way of earmarked vacancies fo" the kill region of U.P. which became an integral part of the State of Uttaranchal. This is an untenable grievance in view of the discussion made above while dealing with the question whether the selection made by U.P. PSC is binding on the State of Uttaranchal. The rules in force at the time of initiation of the selection process have to be applied in making selections but that does not help the non-official respondents in seeking appointments by the State of Uttaranchal on the basis of selection made by U.P. PSC."
32. Mere inclusion in the merit list itself does not confer any indefeasible right on the selected candidates in a well settled proposition. The Hon'ble Supreme Court in the case of Sunkarasan Dash v. Union of India, (paragraph 7, 8,10 and 11) as well as in the judgment ; State of Uttaranchal and Ors. v. Sidharth Srivastava and Ors. (paragraph 22), has reiterated the said legal proposition time and again.
33. Therefore the candidates selected on the strength of the reservation order of 1994, issued by the State Government, were not entitled to be admitted to the various courses of the University of Allahabad subsequent to it being declared an institution of national importance and a new statutory body corporate established under the Central Act No. 26 of 2005 (Ref Section 4 of the Act of 2005) The provisions of the Central Act cannot be ignored on the ground that advertisement for granting admission by the Allahabad University (State University) was issued prior to the enforcement of the Central Act.
34. The conclusions so arrived at lead the Court to the issue as to whether in the facts and circumstances of the case it would be equitable for this Court to up set the admissions already completed till date for various undergraduate courses of the Allahabad University or. a petition filed by two persons, one of whom is only a student leader and other is claiming admission against one of the seats available in the undergraduate course. On behalf of the University, it has been categorically stated that as many as 2785 students have been admitted in B.A. Course, 695 students have been admitted in B. Sc. Course and 793 students have been admitted in B. Com. Course as on 18th July, 2005 and since there was no interim stay in the present petition, rurther admissions, have also been granted. Requiring the University to re-do the entire merit of the students after excluding the reservation provided for Other Backward Classes category candidates, may result ultimately in denying admission to certain Other Backward Class student-, who have already been admitted after depositing the requisite fee- and their academic career has already commenced. Such students are not before this Court and as such the Court is not inclined to interfere with their admissions on the asking of one single student claiming admission against only one seat.
35. Counsel for the University fairly conceded that if the Court accepts the contention of the petitioner, the University shall provide admission to petitioner no. 2, if any other candidate lower in merit to the petitioner, belonging to Other Backward Classes has been admitted to the said course.
36. In view of the aforesaid statement made on behalf of the University and having regard to the fact that any adverse order passed by this Court, affecting the admission already granted, may cause an irreparable loss of academic session to the students already admitted and shall definitely interfere with the normal academic session of University, this Court is of affirm view that no interference with regards to admission already granted by the University as of date, on the basis of the merit list already prepared, is called for. Any decision to the contrary would be wholly inequitable to the students, who are not before this Court.
37. It is hence directed that the petitioner shall be granted admission to the course applied for, if any other candidate belonging to Other Backward Class category with lower marks than the petitioner has been admitted to the said course by the Allahabad University. The admission already granted till date, on the basis of the reservation provided to Other Backward Class students, shall not be interfered with because of this judgment. However, the University shall not giant any further admission on the basis of the reservation provided for under the Uttar Pradesh State Universities (Reservation in Admission for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Order, 1994 and shall henceforth prepare merit list of the students for admission to various courses of the University without having regard to the reservation provided for under the said Reservation Order of 1994, and shall grant admission accordingly. writ petition is disposed