Kanta Bhatnagar, J.
1. The petitioners in all the writ petitions detailed in Schedule annexed with this order and forming part of it, in response to the advertisement by respondent No. 1, in the month of Oct., 1986, inviting applications for admission to the General Nursing Course (for short 'the Course' here in after) in the State of Rajasthan submitted applications for being admitted to the Course at Barmer Centre. Not being selected for the Course, the petitioners felt aggrieved and invoked the writ jurisdiction of this Court.
2 Notices at the admission stage were issued to the respondents Mr. L.S. Udawat, Additional Government Advocate appeared on their behalf. On the request of the learned Counsel for the parties and in view of the urgency of the matter, the writ petitions have been heard for final disposal at the admission stage. As the points involved in all the writ petitions are common, 1 propose to dispose them of by common order.
3 The facts relevant for the disposal of the petitions are as under Non-petitioner No. 1 vide advertisement published in month of October, 1986 invited applications for admission to the course for the eleven centres in the State for imparting training. The admission for a particular training Centre was to be given to the candidates who were bonafide residents of the Districts for which the particular Centre was meant for. The Centre at Barmer was meant for the residents of Banner and Jaisalmer Districts. The petitioners being residents of that area applied for admission at Barmer Centre. According to the Scheme of the admission, 16% seats were reserved for Scheduled Caste candidates 12% for Scheduled Tribes candidates and 10% for the Government nominees. The total number of seats for Barmer Centre was 60. There were 481 applications in all. While making selection from amongst the candidates who had applied, forty candidates were selected in the general cadre, nine in the Scheduled Caste cadre, two in the Scheduled Tribes cadre and six candidates were given admission as Government nominees.
4. The petitioners feeling aggrieved by their not being admitted to the Course have challenged the legality and validity of the selection of the candidates and have prayed for direction to the respondents to consider the applications on merits instead of reservation of seats for certain categories of candidates despite there being no rules and regulations to that effect
5. The learned Counsel for the petitioners have challenged the validity and legality of the selection of candidates to the Course on a number of grounds It has been strenuously contended that District-wise allocation of seats limited the scope of admission for a candidate because meritorious candidates residing in a particular district could not get admission there because of the higher percentage of the candidates applying there whereas at other Centres persons securing lower percentage than the petitioners could get the chance because the percentage of the candidates applying there was lower.
6. It has been stressed by the learned Counsel for the petitioners that when the academic qualification for eligibility was the same, there was no justification for asking the candidates for filing the applications only at the Centre meant for the district they belonged to.
7. The next ground of attack is that there are neither rules and regulations framed under the Act providing for reservation of seats for Scheduled Castes and the Scheduled Tribes candidates nor is there any provision for Government nominees. The grievance of the petitioners is that the candidates belonging to Schedule Castes and Schedule Tribes and the Government nominees have secured lower percentage than most of the petitioners still they got the chance of admission to the course which has been denied to the petitioners despite their being more meritorious.
8. Assailing the admission of the Government nominees, it has been vehemently stressed that they have very poor percentage in comparison to the petitioners and that even candidates securing 36% marks have been nominated by the Government. That, apart from there being no rules and regulations for reservation of seats for Government nominees, the Government has not kept in view any criterion for the nomination. That, whereas the candidates applying at a particular Centre were required to file a certificate of their being bonafide residents of the district for which the Centre is meant for, the Government nominees for Barmer Centre are neither resident of Barmer nor of Jaisalmer. Thus, the restriction imposed on the candidates for seeking admission at the Centre which is meant for their district, has been done away with for the Government nominees.
9. The learned Counsel for the petitioners have raised three-fold objections to the validity of the selection of candidates for the Course viz. region wise admission, reservation for Schedule Castes and Schedule Tribes candidates and reservation of seats for Government nominees on the ground that this type of reservation in absence of rules and regulations framed under the Act is violative of Articles 14 and 15 of the Constitution of India.
10. To meet the contention Mr. Udawat has taken resort to Annx. R/1, the rules and regulations for admission in General Nursingh Course published in the year 1984 and the Department Letter R/1(4) providing for reservation of seals for the Schedule Castes and the Schedule Tribes candidates and Government nominees. It has been submitted by Mr. Udawat, that these rules and regulations are guidelines for admission and are in line with the Constitutional safeguard provided for backward sections of the society.
11. The relevant provisions of the Constitution referred to by both the sides are Articles 14, 15, 29 & 46.
12. Article 14 of the Constitution relates to the fundamental right of the citizen of India regarding equality before law. It imposes a restriction upon the State to deny to any person equality before the law or the equal protection of the laws within the territory of India.
13. Article 15 of the Constitution provides for prohibition of discrimination on the ground of religion, race, caste, sex or place of birth.
14. Article 29 of the Constitution relates to the protection of interests of minorities. Clause (2) of the Articles provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them This provision is to be read with Clause (4) of Article 15 which provides that nothing in that Article or 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.
15. Article 46 of the Constitution upon which Mr. Udawat has relied most provides for promotion of educational & economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. It reads as under:
The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
16. The pertinent question is as to whether in the cases on hand, the Government or the concerned authorities have proceeded according to the provisions of the Rajasthan Nurses, Midwives, Health Visitors and Auxiliary Nurse-Mid wives Registration Act, 1964 (for short 'the Act' here in after).
17. For the purpose of carrying out the provisions of this Act, the Council is established. The term 'Council' according to section 1(b) of the Act means the Rajasthan Nursing Council established under Section 3. Section 3 of the Act provides that the State Government shall by notification in the Official Gazette, establish a Council to be known as the Rajasthan Nursing Council for the purpose, of carrying out the provisions of this Act and such Council shall be a body corporated, shall have perpetual succession and a common seal and may by the said name sue and be sued.
18. Sections 10, 12, 24 and 33 relate to the powers under the Act. Sections 10, 12 and 24 vest power exclusively with the Council for framing business regulations and for maintenance of registers and examinations and recognitions of institutions etc.
19. The power to frame Rules and Regulations under Section 33 of the Act is however divided in two parts. Sub-section (1) of Section 33 of the Act empowers the State Government to make Rules and Regulations for the purpose of clauses (a) and (b). Sub-section (2) of this Section vests the Council power in addition to the powers conferred under Sections 10, 12 and 24 to make regulations, not inconsistent with the provisions of the Act and the rules made under Sub-section (1). The various matters to which this subsection (2) relates are enumerated in its clauses (i) to (xi).
20. The power for framing Regulations is wholly vested in the Council and the State Government is left with the power to make Rules only for the limited purpose enumerated in Section 33(1)(a) and (b).
21. Learned Counsel for the petitioners have vehemently argued that framing of the Rules and the Regulations Annexure R/1 was beyond the scope of the State Government because the matters mentioned thereunder do not fall with in the ambit of Section 33(1)(a)(b) of the Act. That, even assuming that they fell under Section 33(1)(a)(b) still they could not be effective unless the requirement of Section 34 was fulfilled.
22. The contention of Mr. Udawat, is that the Rules and the Regulations Annexure R/1, under which selection for reserved seats is made, are only guidelines and not rules framed under the Act and therefore Section 34 of the Act is not attracted Mr. Udawat, alternatively contended that even in case the Rules and the Regulations are held to fall under Section 33 of the Act, then they may be taken to have been framed under subjection (1) of that section which the State Government was. competent to do, and non-compliance of Section 34 would not in all cases, specially for the reservations of seats for the Schedule Castes and the Schedule Tribes candidates invalidate the Rules.
23. 1 find myself unable to accept the submission of Mr. Udawat Section 33 of the Act is quite elaborate. Even if guidelines in the form of regulations are issued they fall within the ambit of Section 33 and provisions of Section 34 of the Act are attracted.
24. Assuming for the sake of arguments that the Rules and the Regulations Annexure R/1 were framed by the State Government1 under the powers vested under Section 33(1). The question would still remain as to whether in absence of compliance of Section 34 of the Act they would be valid.
25. Section 34 of the Act provides for laying of rules and regulations before the Assembly and reads as under:
Section 34. Laying of rules and regulations before Assembly. All rules and regulations finally made under this Act shall be laid as soon as may be after they are so made, before the House of the State Legislature, while it is in session, for a period of not less than fourteen days which may be comprised in one session or in two successive sessions and, if, before the expiry of the session in which they are so laid or of the session immediately following, the House of the State Legislature makes any modification in any of such rules or regulations or resolves that any such rule or regulation should not be so made, such rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder.
26. In order to safeguard the interest of the aspirants for taking the Course and to avoid illegalities and irregularities in framing the Rules and the Regulations by the State Government and the Council under the Act, the Legislature in its wisdom enacted Section 34 of the Act and obliged the concerned authorities to lay the rules and the regulations before the Assembly to give them finality. The word 'shall' occurring in Section 34 of the Act is to be taken to express the imperative nature of the section.
27. In pursuance of the, powers vested under Sub-section (1) of Section 10 read with Section 24 and Sub-section (2) of Section 33 of the Act, the Rajasthan Nursing Council made the Rajasthan Nursingh Council Regulations, 1964 (for short the Regulations' here in after). Regulation 42 provides that the syllabus and the Regulations for the Course in General Nursing and Midwifery Auxiliary Nurse Midwife Course and Integrated Course for Health Visitors, shall Mutatis-Mutandis, be the same as laid down by the Indian Nursing Council. Thus the syllabus and the Regulations by the Indian Nursing Council were adopted for the Course in 'Rajasthan. The Indian Nursing Council Regulations were, framed in exercise of powers conferred by Sub-section (1) of Section 16 of Indian Nursing Council Act, 1947 as amended from time to time. In the Indian Nursing Council Regulations there is. neither provision for regionwise reservation nor for reservation for, any particular class of society.
28 Vide letter dated December 11,1984(Annexure R/1 the Director to Medical & Health Services, Rajasthan Jaipur sent copies of the Rules and the Regulations for admission in the General Nursing Training Course to the Superintendent S M.S. Hospital, Jaipur and the Chief Medical & Health Centre, Ajmer/Bhilwara/Pali and Sri Ganganagar. The Special Secretary to the Government (Medical), Jaipur vide Annexure R/2(4) intimated the concerned persons admissions in General Nursing Course are actively under consideration in the light of instructions received from the Indian Nursing Council, New Delhi and various judgments of the Courts and that meanwhile for the academic Session 1986-1987 previous Rules and Regulations with the amendments mentioned at R/2(5) be followed.
29. It is in that amended part that there is provision for reservation of seats for the Scheduled Castes and the Schedule Tribes candidates and the Government nominees.
30. In Annexure R/1(B) the educational qualification for admission to the Course has been mentioned as the passing of Higher Secondary with Science (Biology). One D.S. Nathawat a candidate for the Course challenged that Rule in S B. Civil Writ Petition No. 657 of 1985 decided on October 28, 1985 under Article 226 of the Constitution of India. The learned Judge who decided the petition was of the view that the admission Rules issued by the State Government do not show that they had been made in exercise of the Rules making power conferred on the State Government under Sub-section (1) of Section 33 of the 1964 Act. It was held that in view of Section 34 of the 1964 Act, it was necessary that the said Rules should have been laid before the State Legislature. As such, those Rules were not held to be capable of over-ruling the Regulations issued by the Rajasthan Nursing Course in exercise of the powers conferred on it under Sub-section (2) of Section 33 of the 1964 Act. In view of that opinion, the learned Judge held that the petitioner was eligible for admission to the General Nursing Course (Male) because there was no requirement about Science and Biology in the Regulations framed by the Indian Nursing Council which has been adopted by the Rajasthan Nursing Course vide Regulation 42 of the Regulations and the petitioner fulfilled the minimum entrance requirement prescribed by the Indian Nursing Council Regulations in as much as candidates who had passed the Intermediate Examination were also eligible for admission to the Course.
31. The present petitions are covered by the aforesaid decision of this Court so far as the position of the Rules and the Regulations framed by the State Government, which according to the learned Additional Government Advocate are the guidelines for admission, is concerned. The Rules and the Regulations Annexure R/1 not being in accordance with the Act have no statutory force.
32. Mr. Udawat, did not dispute this position that the Rules and the Regulations are neither according to the provisions of the Act nor are they covered by Regulation 42 of the Regulations His contention however is that, the State Governments does Trade Rules and Regulations and lay guidelines for admission in educational institutions and those Rules and Regulations do not require any approval or rectification by the Legislature.
33. True it is that the Government is competent to lay down guidelines or pass administrative/executive orders for admission in educational institutions. But if an Act provides for a particular method to be followed with regard to admission or other matters then that procedure is to be strictly followed.
34. In the case of A.K. Roy and Anr. v. State of Punjab and Ors. : 1986CriLJ2037 , it has been laid down that where statute confers a power to be exercised or performed in a specific manner, other modes of exercise or performance are impliedly are barred.
35. When there is Section 34 requiring the Rules and the Regulations framed by the Council or the State to be laid before the Legislature failure to proceed in that manner would negative the value and weightage of the Rules and the Regulations, even if framed.
36. The question about the Rules and the Regulations having no force has been determined as stated earlier by this court in D.S. Nathawat's case and I am in respectful agreement with the view expressed by the Hon'ble Judge. This makes the position clear that the Rules and the Regulations stated to be guidelines are ineffective for the admission to the Course.
37. Keeping this position in view I would now deal with the three types of reservations challenged in these writ petitions and accordingly limiting the scope of admission for the candidates falling in the general category.
38. So far as the regionwise admission in the eleven centres is concerned, it may be stated at the very outset that even in the Rules and Regulations on which the learned Additional Government Advocate has placed reliance there is no mention that the candidates applying at a particular centre should be residents of the Districts for which that Centre is meant.
39. In the notification inviting applications, at Serial No. 9, it is mentioned that the applicant while sending the application for any training Centre, will have to file a certificate of his bonafide residence in the district related to that Centre
40. The learned Counsel for the petitioners contended that because of this requirement there had been differentiation between the consideration of merit at one Centre and the other
41 Mr. Udawat. has justified this regionwise admission on the ground that it was to facilitate study for the persons belonging to a particular place at lesser expenses and also because the standard of study in different regions may differ and the persons residing in a particular district may not be asked to compete with the candidates of the other districts.
42. Before giving any finding on this point, it would be proper to refer to the principles enunciated in various authorities relied on by both the sides on the question of districtwise or regionwise admissions of candidates for allocation of seats
43. The question of violation of Articles 14, 15 and 29 of the Constitution with regard to reservation of seats in the Maulana Azad Medical College, Delhi in respect of categories (c) to (h) contained in Rule 4 of the College Prospectus relating to the eligibility for admission to the College, came for consideration before Hon'ble the Supreme Court in the case of Kumari Chitra Ghose and Anr. v. Union of India and Ors. : [1970]1SCR413 and it was held that the Rules do not discriminate between any citizen on grounds only of religion, race, caste, sex, place of birth or any one of them and therefore, Articles 15 and 29 cannot be invoked. One of the reason given was that the Central Government bears the financial burden of running the medical college and it is for it to lay down the criteria for eligibility and that from the very nature of things it is not possible to throw the admission open to students from all over the country. It was further laid down that the Government cannot be denied the right to decide from what sources the admission will be made. According to their Lordships if the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification.
44. In the case of Kumar N. Vasundara v. The State of Mysore and Anr. : AIR1971SC1439 , the Rule for admission to aspire professional/BSc. Part-I course leading to M.B.B.S. in Government Medical Colleges, imposing condition of residence for minimum period of ten years in State of Mysore, in addition to a condition of being domiciled in that State, was not held to be violative of Article 14 of the Constitution and following observations were made:
Proper classification and selection from such classified groups made for imparting medical education to available candidate with the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education, can not be challenged on ground of inequality violating Article 14.
45. In the case of Dr. Jagdish Saran and Ors. v. Union of India and Ors. : [1980]2SCR831 , university based reservation was challenged. Their Lordships while deciding the case had in view that, what is fundamental, as an enduring value of our polity, is guarantee to each of equal opportunity to unfold the full potential of his personalities. It was observed that 'each according to his ability,' is of pervasive validity. That, unless there is vital nexus with equal opportunity, validation of university based reservation cannot be built on the vague ground that all other universities are practising it. According to their Lordships Universality of illegality, even if the artists of discrimination are universities, cannot convert much prexies into constitutionality. That, the constitutionality of institutional reservation must be founded on facts of educational life and the special dynamics of equal opportunity. It was further held that the reservation must be kept in check by the demands of competence and the basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best skill or talent must be handicapped by selecting according to capability. According to their Lordships when protective discrimination promotional of equalisation is pleaded, the burden is on the party who seeks to justify the ex-facie deviation from equality.
46. Taking help from this principle, the learned Counsel for the petitioners urged that the State Government has not given out any justification for limiting the scope of admission at a particular Centre to the candidate who are bonafide residents of the districts connected with that Centre.
47. The question of justification for total reservation of seats, on the ground of residence, for admission to Medical College was challenged in the case of Dr. Pradeep Jain etc. etc. v. Union of India and Ors. : (1984)IILLJ481SC . The principle enunciated in the case in the any one, any where, humble or high, agrestic or urban, man and woman, what ever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to any secular educational course for cultural growth, training facility, speciality or employment. It was further observed in the case as under:
Equality of opportunity is not simply by matter or legal equality. Its existence depends not merely on the absence of disabilities but on presence of abilities. Where therefore, there is inequality, in fact, legal equality always tends to accentuate it.
48. In that case the whole sale reservation made by the State Government on the basis of 'domicile' or residence requirement within the State or on the basis of institutional preference for students who had passed the qualifying examination held by the university or the State excluding all students not satisfying these requirements, regardless of merit was considered to be unconstitutional and void as being in violation of Article 14 of the constitution. It was held that the reservation should in-no event exceed the outer limit of 70% of the total number of open seats after taking into account other kinds of reservations validly made.
49. Mr. L.S. Udawat, submitted that the principle enunciated in the above referred cases are mostly related to the higher technical education whereas in the present case the qualification for eligibility in First Year TDC or equivalent. That, the standard of study in all the educational institutions in the State is almost the same and therefore, the districtwise admission has justification on the ground of geographical consideration and the convenience of the candidates joining the course at a particular Centre.
50. The principle enunciated in the various cases referred to above indicates that it is not in all cases that regionwise or districiwise admission may be discarded. However, for such a reservation there should be some sound basis and it should not amount to denial of equal opportunity to all similarly placed.
51. Upon looking to the scheme of establishment of, Centres with regard to particular districts it does appear that the State has kept in view the geographical criteria in view.
52. The system adopted for certain admissions such as PMT and PET has been referred to by the learned Counsel for the petitioners. There is one general test and option is left to the successful candidates to get admission for study in a particular university. If such a course would have been followed for the Nursing Training Course also, the restriction for bonafide residents of a particular district would not have been there and that would not have caused grievance to the applicants, because in that case the list prepared for all the Centres would have been on the basis of all the applications. However in view of the circumstances, the Course adapted by the State, restricting admission at a particular Centre to the residents of the districts attached to that Centre, cannot be said to be so prejudicial to the interests of the candidates so as to necessitate the disturbance on the admissions on this ground and it would not be proper or prudent to disturb the training course being imparted at various Centres on this count only.
53. Now, I would deal with the other two reservations viz. the reservation for the Government nominees and the reservation for the Scheduled Castes and the Scheduled Tribes candidates.
54. The position of Rules and Regulations Annexure-R/1 as amended in R/2(4)(5) has already been discussed above and it has been held that those Rules and Regulations have no pervasive value because they are not according to the provisions of the Act i.e. neither do they fulfil the requirement of Section 34 of the Act nor is there any such provision in the Indian Nursing Council Rules and Regulations adopted in Rajasthan by virtue of Regulation 42 of the Rajasthan Nursing Council Regulations, 1964 framed in exercise of powers conferred by the Act.
55. Under what circumstances and on what basis these reservations were made is not evident from the record. The only document brought on record is Annexure R/2(3) issued by the Government of Rajasthan, Medical and Public Health Department to the persons mentioned therein that as the State Government had decided to nominate the candidates in various training Courses, conducted by the Department at 10% intake capacity of the respective training Centre with immediate effect.. 10% of seats may be kept vacant for the State Government nominees. In pursuance of that order the candidates were nominated for each Centre. The number of candidates so nominated for the Barmer Centre, to which these petitions under consideration relate, was six.
56. Mr. Udawat, learned Additional Government Advocate could not point out any basis for the selection of candidates to be so nominated for the Course.
57. It is important to note that the percentage of the marks obtained by the candidates nominated by the State Government falls much below the percentage of the candidates who have been admitted in the general quota and some of those who had been rejected because of the reservation of seats. For example, one Noor Ahmed admitted as the State Government nominee is said to have obtained only 36% of marks whereas most of the applicants stand much higher to him in merit.
58. In the case of Surendra Kumar v. State of Bihar and Ors. : [1985]2SCR19 in the list of candidates prepared and recommended by the Chief Minister of one State to the Government of another State for admission to medical colleges of that State against seats reserved for the former State the basis of selection of candidates by the Chief Minister for preparing such list was not disclosed. In those circumstances, it was held by the Court that the selection was arbitrary and in blatant misuse of power. The list of names recommended by the Chief Minister was held liable to be quashed and fresh list according to merit from amongst the candidates who had sought admission to local medical colleges as well as those who applied for admission to the other State for admission against reserved seats was ordered to be prepared.
59. Mr. Udawat, learned Additional Government Advocate could not answer the query of the Court as to what was the criterion for selecting the Government nominees. Mr. Udawat submitted that despite his best efforts he could not get any instruction in that regard and that he has no argument to advance to justify the reservations for such nominated candidates.
60. Thus, apart from there being no legally framed Rules and Regulations providing for reservation for Government nominees, the absence of any criterion for such nomination on the record, makes the reservation for the Government nominees for the Course illegal.
61. The question of the reservation for Schedule Castes and Scheduled Tribes candidates does not require much discussion because the provision relating to their reservation is the same as that for the Government nominees. As observed above, the Rules and Regulations, under which the reservation is made having not been framed in accordance with the provisions of the Act, have no statutory force. This has given rise to the legitimate grievance to the meritorious candidates of the general list that in case the authorities concerned would have proceeded legally and regularly they would have got admission in place of the candidates who had secured lesser percentage of marks than they and got the admission simply because of this reservation.
62. Mr. Udawat, learned Additional Government Advocate submitted that even if the Court holds that the admission to the Scheduled Castes and the Scheduled Tribes candidates was not in accordance with the Rules and Regulations legally framed, still because of the Constitutional safeguard, they were entitled to the admission. Reference has been made to the P.M.T. and the PET Courses where there is reservation for the Scheduled Castes & Scheduled Tribes candidates on the basis of Government Circulars.
63. True it is that there is Constitutional safeguard for the Scheduled Castes and the Scheduled Tribes candidates but that does not mean that the State Government should proceed with their admission without framing the Rules and Regulations in accordance with law, overlooking the provisions of Section 34 of the Act.
64. Mr. Udawat referred to the case of State of MP and anr. v. Kumari Nivedita Jain and Ors. : [1982]1SCR759 in which the executive order completely relaxing conditions in case of the Scheduled Castes and the Scheduled Tribes candidates was not held invalid or unconstitutional. It is to be noted that the Rules and Regulations were already there for the reservation of seats and the executive order only relaxed the conditions.
65. The conclusion drawn from the above discussion is that the admission in the Centres meant for particulars districts on the basis of the candidates being bonafide residents of those districts is based on geographical convenience and in the given circumstances of the case, if warrants no interference by the Court. To disturb the admission on that basis now would cause great inconvenience not only to the Government but also to the students admitted at various Centres.
66. The admission of the candidates on the basis of reservation for the Government nominees and the Scheduled Castes and the Scheduled Tribes candidates is held to be invalid and illegal. The next point arising for determination would be as to what steps are required to be taken and directions to be issued for giving relief to the deserving candidates in pursuance of this finding of the Court.
67. Striking down a scheme in itself would not give relief to the candidates unless specific directions are issued for following the proper procedure.
68. The total number of candidates admitted at the Barmer Centre against the reserved seats in 17. Out of them 9 are the Scheduled Castes candidates, 2 are the Scheduled Tribes candidates and 6 are Government nominees. These admissions having been held invalid and illegal, the meritorious candidates in the general list are entitled to admission. The solution in the circumstances is to give admission to 17 candidates out of the general list in accordance with merit 40 candidates from the general list, have been admitted. The last of them being the candidate who had secured 55% marks in the qualifying examination. A list of 74 candidates on the basis of merit bad been prepared in which the last candidate had secured 50.22 percent of marks.
69. Mr. Mridul Jain, learned Counsel for the petitioner Manoj Vyas has submitted that this petitioner had secured 50.33 percent marks in the qualifying examination and despite his percentage of marks being higher to the candidate shown in the merit list who had secured 50.22 percent marks, he has not been included in the merit list, It has therefore, been prayed by Mr. Jain that the marks of the candidates should be rechecked for the purpose of preparing merit list.
70. Directions are issued to the respondents to recheck the marks of all the candidates who had applied for admission for the Course at the Barmer Centre and prepare a fresh merit list. Besides the candidates already admitted to the Course from the general cadre 17 more candidates shall have to be given admission on the basis of merit according to the merit list so prepared. This solution would give relief to the meritorious candidates whose chances have been marred on account of illegal admission on the basis of reservation.
71. The question however survives as to what would be the fate of the candidates admitted on the basis of reservation of seats.
72. Mr. Udawat, learned Additional Government Advocate submits that because of the failure of the concerned authorities to supply him the material to justify the nomination by the State Government he has nothing to say about the 6 Government nominees, but so far as the Scheduled Castes and the Scheduled Tribes candidates are concerned because of the constitutional safeguard for them, the illegality in their admission, even if any should be ignored and they should be permitted to continue.
73. Article 46 of the Constitution provides for promotion of educational and economic interests of the Scheduled Castes, the Scheduled Tribes and other weaker sections and reads as under:
46. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
74. Thus, the Constitution safeguards the interests of the S C. and the S.T. persons. Their interest is to be promoted by framing befitting Rules and Regulations. In almost all the training Courses, the State Government has taken care to follow this principle. In the present cases also the State Government was quite vigilant to safeguard the interest of this section of the Society, but unfortunately as the adequate rules and regulations for reservation of seats for the Scheduled Castes and the Scheduled Tribes candidates were not framed in accordance with law and in view of the provisions of the Act, there is no alternative but to hold their admissions to be invalid. I am however, alive to the principle that Court must promote constructive justice. To put it in other words, simply because of the requirement of the Constitution and the policy followed by the State in general could not be achieved in accordance with the provisions of law and as such has rendered invalid the admission of the candidates, who are entitled to a special treatment, those candidates should not be put at a disadvantageous position after their admission to the Course
75. In this view of the matter, I am of the view that 9 Scheduled Castes and 2 Scheduled Tribes candidates admitted to the Barmer Centre be allowed to continue their studies. That in by humble opinion would not amount to inequality. Rather it would be real equality amongst those who are really unequal.
76. To make this direction consistent with the aforesaid direction that 60 seats at the Banner Centre shall be filled up on the basis of the merit list, additional seats corresponding to the number of the Scheduled Castes and the Scheduled Tribes candidates already given admission and permitted to continue their studies by this order, shall be increased.
77. Mr. Mridul learned Counsel for the petitioners emphasized that the candidates who have been provisionally admitted in pursuance of the order of the Court should be permitted to continue whether they are entitled to admission or not on the basis of the merit list, because they had studied the Course for sometime and that in case those candidates do not come in the merit list, the State Government should be directed to increase the number of seats to accommodate those candidates.
78. Orders for provisional admissions to some of the petitioners have been passed in the stay petitions filed by them with their Writ Petitions and they have joined on the basis of provisional admission.
79 Mr. Mridul Jain, learned Counsel for the petitioner has made the same submission and added that if seats corresponding to the number of the Government nominees are increased and they are allowed to continue and also if seats are further increased to accommodate candidates falling in line with the Government nominees in merit, the petitioners will have no grievance.
80. To substantiate his submission Mr. Mridul Jain referred to the principles enunciated in the case of Punjab Engineering College, Chandigarh v. Sanjay Gulati and Ors. : [1983]2SCR801 in which the irregular admissions were made and the solution given by the court and the direction issued accordingly was to increase the seats in proportion to the wrong admissions made. It was also made clear that the authorities who made admissions by ignoring the rules of admission cannot be allowed to contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students.
81. Such a solution was based on the ground expressed by their Lordships that, it is not until a period of six months or a year elapses after the admissions are made that the intervention of the Court comes into play According to their Lordships the time consumed in disposal of such cases by the High Court and Supreme Court creates difficulties in adjusting equities between students who are wrongly admitted and those who are unjustly excluded. Inevitably, the Court has to be content with an academic pronouncement of the true legal position. Their Lordships were however vigilant of the situation (hat the students who are wrongly admitted do not suffer the consequences of the manipulations if any, made on their behalf by interested persons and this has virtually come to mean that one must get into an educational institution by means, fair or foul; once he is in, no one will put him out.
82 Following strong observations made by their Lordships against erring authorities also carry importance:
Law's delays work their wonders in such diverse fashions. It is found that this situation has emboldened the erring authorities or educational institutions of various States to indulge in violating the norms of admission with impunity. They seem to feel that the Courts will leave the admissions in tact, even if the admissions are granted contrary to the rules and regulations. This is a most unsatisfactory state of affairs, laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed for (he reason that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified.
83. The claim of wrongly admitted candidates or candidates provisionally admitted by the order of the Court during the pendency of their writ petitions is based on the ground that those candidates have spent their time in studies and valuable period of year of their carrier would be wasted.
84. Such is not the position in the present case. The course has started only in the first week of January, 1987. Five of the Government nominees have joined after a few days and one of them is said to have joined much after the Course had started. The provisional admissions were given in the month of January, 1987 only. It has been brought to my notice that regarding the admission to this Training Course in 1985-86, writ petitions on similar grounds were filed and candidates were given provisional admission by the Court and those writ petitions are still pending and those students are continuing their studies Anticipating the consequence in case the petitions are kept pending for long and on lapse of time the candidates provisionally admitted being placed at a disadvantageous position, in case they are asked to go out or their claiming continuance in the Course as of right and equity being in their favour on account of lapse of time, the writ petitions were heard for final disposal at the admission stage.
85. Now that only a period of about one month and a half or even less that in some cases has passed since the candidates have joined the Course, I do not consider it proper to allow the Government nominees or the provisionally admitted candidates to continue their Course. Here it may also be mentioned that the Government has nominated even candidates who bad secured very low percentage. For example, one of those candidates, as stated earlier, has secured only 36% marks and some of them 41% marks. It case they are permitted to continue then as submitted by Mr. Mridul Jain, learned Counsel for the petitioners, the candidates securing that percentage should be admitted on the ground that the wrongly admitted candidates standing below them in merit are having the advantage of the Course. In that situation out of the list of candidates very few, securing less than 36% marks, may be left out.
86. In technical education, merit should be the best test and by allowing the candidates with very poor percentage in the technical education would create chaotic condition, which cannot be permitted by the Court. The candidates admitted as the Government nominees shall not therefore, be permitted to continue in the Court unless they are entitled to admission on the basis of merit according to the general merit list. It may be mentioned here that the percentage in the case of the Scheduled Castes and the Scheduled Tribes candidates does not create a hurdle in their way to continue because they form a category in themselves and the merit is ascertained from amongst the candidates falling in that particular category.
87. The Scheduled Castes and the Scheduled Tribes candidates admitted shall be allowed to continue the Course.
88. Out of the candidates provisionally admitted in pursuance of the order of the Court only those shall be entitled to continue to the Course who come in the merit list to be prepared for the purpose.
89. The respondents are directed to prepare a merit list of all the applicants afresh. There are 60 seats in all and in the peculiar circumstances of the case, all are to be filled up from the general category. As observed above, there would be increase of all seats on which the Scheduled Castes and the Scheduled Tribes candidates have already been admitted. The total number of seats for the Barmer Centre would thus be 71. For the 60 seats required to be filled up according to merit, 40 candidates have already been admitted from the general category. The remaining 20 seats will be filled up strictly on the basis of merit according to the merit list to be prepared after checking the mark-sheets of all the applicants. The final selection list shall be declared within two weeks from this order and reasonable time be given to the selected candidates To join the Course.
90. The provisional admission was allowed to some of the candidates at their own risk. Now that only those who come within the merit according to the list to be prepared would be entitled to the admission the provisionally admitted students shall have no right to continue the Course by virtue of the order of the Court. However, if some of them have a high percentage and are sure of their getting a chance on the basis of merit in pursuance of this Order they may continue to study until the final selection list is declared. This would however be at their own risk and will not in any way create a right in them to continue the study further.
91. Before parting with the petitions, [ consider it necessary to add that the grievance of the petitioner is not only theirs but is of a class i.e. of all those who have been kept out of the Course because of certain candidates getting entry to it erroneously. It is in a way class litigation, because the decision of these writ petitions is likely to affect the candidates who had applied at various Centres meant for the Course. In cases of the present category many a times one person or a few, approach the Court to make a test case, and if they succeed, others follow. Cases are also not rare when only those who can afford litigation expenses approach the Court and get relief, while others not so fortunate suffer the consequences of the incorrect decision of the persons in power or the concerned authorities. It is in such matters that the Courts are expected to extend justice and equity to those entitled to it What I mean to say is that in appropriate cases the Court deciding a particular case in exercise of its extra-ordinary jurisdiction, should not confine to redressing the grievance of the party approaching it, rather it should, within permissible reasonable scope issue directions in a way which may give relief to all those similarly placed.
92 The decision of the present writ petitions is likely to give rise to a number of writ petitions by the candidates who had applied at various Centres and despite of high percentage have been denied admission on account of the unjust admission of certain others. The principle enunciated in this decision is not confined in its applicability to the applicants of the Barmer Centre only, rather it is of general nature affecting the admissions at all the eleven Centres. In such circumstances, I consider it proper and prudent to issue such directions which may give relief to all concerned in accordance with this order. It is essential to save the meritorious candidates from the harassment of approaching this Court for obtaining similar order and also to bring uniformity in admission at all the Centres. That would also help those who though wrongly excluded may not for certain reason approach the Court.
93. The respondents are therefore, directed to reconsider the selection of candidates for admission to the Course at all the eleven Centres in accordance with the directions issued and observations made in this order.
94. The writ petitions stand decided accordingly. Costs shall be easy.