Judgment:
B.D. Agarwal, J.
1. The petitioners herein are basically seeking implementation of Section 3 of the Central Educational Institutions (Reservation in Admission) Act, 2006 (hereinafter briefly referred to as 'the Reservation Act'), whereby the benefit of reservation of certain percentage of Seats for the students from Scheduled Castes and Scheduled Tribes and Other Backward Classes have been provided in the Central Educational Institutions (for short 'CEI'). Precisely the prayer is confined to National Institute of Technology (for short 'NIT'), Agartala which is a CEI within the meaning of Section 2(d) of the Reservation Act, and situated within tribal area referred to in 6th Schedule of the Constitution, since the said NIT is not extending reservation facility to OBC students.
2. We have heard Shri A.K. Bhowmik, learned senior counsel for the petitioners. Respondents Nos. 1, 2 and 3 were represented by Shri A. Lodh, learned Central Government Counsel whereas the NIT (Respondents Nos. 4 and 5) were represented by Shri S. Talapatra, learned senior counsel. With the consent of all the parties this writ petition is being disposed of at the admission stage.
3. The writ petition has been filed by a registered Society which monitors and protects the interest and welfare of the OBC community. The society has been joined by few other individuals who were deprived of being admitted in the NIT from the reserved category. The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a Writ in the nature of Mandamus so as to direct the respondents to implement the reservation policy in the technical education as laid down in Reservation Act. During pendency of the writ petition the petitioners also sought for supplementary direction to the respondents to provide reservation to the students belonging to the OBC, SC and ST community in the NIT, Agartala as per ratio laid down in Section 3 and refrain from extending the benefit of reservation only to SC and ST students.
4. Shri Bhowmik, learned senior counsel for the writ petitioners submitted that although the NIT, Agartala is located within the Tripura Tribal Areas Autonomous District Council and although the Institution falls under an area which is covered by 6th Schedule of the Constitution, the reservation restriction regarding applicability of the Reservation Act as per Section 4 would not be applicable to the NIT, Agartala since it was established before formation of the District Council in the State of Tripura. According to the learned Counsel, the District Council was formed in the State of Tripura by way of 49th Amendment which came into effect on 1-4-1989 and as such the said Institution cannot be said to be established by the Central Government. As such the exclusion clause i.e. Section 4 of the Reservation Act is not binding and applicable to NIT, Agartala. The second limb of the argument was that since the NIT is implementing the reservation policy in piecemeal, by way of reserving Seats for SC and ST students @ 15% and 7% respectively, excluding the OBC students, it offends Articles 14 and 15(a) of the Constitution of India.
5. Per contra Sri S. Talapatra, learned senior counsel for the NIT submitted that the NIT, Agartala was taken over by the Ministry of Human Resource Development Department of Secondary arid Higher Education, Govt. of India (hereinafter for short 'Ministry of HRD') vide Notification No. 10-3-2006 and took over its administration and control w.e.f. 1-4-2006, the said NIT is a CEI within the meaning of Section 2(d) of the Reservation Act and since the NIT is situated within a tribal area that has been covered under 6th Schedule the provisions of reservations of seats either for OBC, SC and ST are not applicable. However, as submitted by the learned Counsel the NIT is providing reservation only to SC and ST students since the said benefit was given to the students of these communities immediately before the operation of the Reservation Act came into force and the said policy is being continued with due approval from the Ministry of HRDD. On this premise the learned Counsel defended reservation of seats to the students of SC and ST communities.
6. Shri Lodh learned Central Government Counsel also adopted the argument of the learned Counsel for the NIT and contended that in view of Section 4, students of OBC community cannot claim reservation in the NIT. However, to a pointed query as to under what provision or authority the Central Government is permitting the NIT to make reservation for SC and ST community students, the learned Counsel had no answer.
7. Shri Bhowmik, learned senior counsel for the petitioners also submitted that the very object of enactment of Reservation Act was to give reservation facility to the students who hail from OBC community and it is a fallacy that the said community is being deprived of the beneficial legislation in the NIT, Agartala adopting a discriminatory attitude.
8. At this stage itself we make it clear that the writ petitioners have not challenged the legality or vires of Section 4 of the Reservation Act which has excluded the benefit of reservation of seats for SC, ST and OBC students in the CEI established in the tribal areas. Even otherwise, it would have been difficult for this Court to examine the legality of the exclusion clause since it is the settled position of law that Judicial review of a legislation is not permissible unless it is found that the legislature was incompetent to legislate the law or that the law violates fundamental rights guaranteed in Part III of the Constitution of India. Without multiplying authorities in this regard we may refer to the recent judgment of the Hon'ble Supreme Court rendered in the case of Mahmadhusen Abdulrahim Kalota Shaikh (2) v. Union of India (2009) 2 SCC 1. In this authority the Apex Court has held that there is always a presumption in favour of the constitutionality of enactment and the burden is upon the person who challenges its legality. However, as noted earlier the petitioners have not challenged the legality of the Reservation Act more particularly Section 4 in this writ petition. Even otherwise, the Hon'ble Supreme Court has also held the law as constitutionally valid in the case of Ashoka Kumar Thakur v. Union of India 2008 AIR SCW 2899.
9. The Supreme Court of India has time and again warned against colourable exercise of powers or going against the legislative intent. In the case of Chief Justice of A.P. v. L.V.A. Dixitulu reported in : (1979) 2 SCC 34 : AIR 1979 SC 193 the Apex Court observed like this:
The primary principle of interpretation (of law) is that a constitutional or statutory provision should be construed according to the intent of they that made it. Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow.
10. Again in the case of Prithi Pal Singh v. Union of India : AIR 1982 SC 1413 the Hon'ble Supreme Court made these thought provoking observations:
The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognized canons of construction is that the legislature intention speaks its mind by use of correct expression and unless there is ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to absurdity.
11. Once Lord Denning also, while dealing with a question as to when the judiciary should supplement the law, said that 'a Judge should ask himself the question how, if the makers of the Act had themselves come across this ruckus in the texture of it, they would have straightened it out? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.'
12. In view of the judicial dictum neither it is permitted to look at the legality of the exclusion clause i.e. Section 4 nor is there any scope to draw any inference other than what emerges from the plain reading of Section 4.
13. To answer the question raised in this writ petition it is necessary to look at various provisions of law. For ready reference Section 2(d) which defines Central Educational Institutions; Section 3 which prescribes reservation of seats for SC, ST and OBC students; Section 4 which can be termed as exclusion clause for the reservation policy; Section 6 which mandates CEI to implement the provisions of Sections 3, 4 and 5 and Section 7 which is somewhat en-abhng provisions to issue certificatory Notifications are reproduced below:
2(d) Central Educational Institutions' means
(i) a university established or incorporated by or under a Central Act,
(ii) an institution of national importance set up by an Act of Parliament;
(iii) an institution, declared as a deemed University under Section 3 of the University Grants Commission Act, 1956, and maintained by or receiving aid from the Central Government;
(iv) an institution maintained by or receiving aid from the Central Government, whether directly or indirectly, and affiliated to an institution referred to in Clause (i) or Clause (ii), or a constituent unit of an institution referred to in Clause (iii);
(v) an educational institution set up by the Central Government under the Societies Registration Act, 1860;
3. The reservation of seats in admission and its extent in a Central Educational Institution shall be provided in the following manner, namely--
(i) out of the annual permitted strength in each branch of study or faculty percent seats shall be reserved for the Scheduled Castes;
(ii) out of the annual permitted strength in each branch of study or faculty, seven and one-half per cent seats shall be reserved for the Scheduled Tribes;
4. The provisions of Section 3 of this Act shall not apply to--
(a) a Central Educational Institution established in the tribal areas referred to in the Sixth Schedule to the Constitution,
(b) the institutions of excellence, research institutions of national and strategic importance specified in the Schedule to this Act.
Provided that the Central Government may, as and when considered necessary by notification in the Official Gazette, amend the Schedule.
(c) a Minority Educational Institution as defined in this Act,
(d) a course or programme at high levels of specialisation, including at the post-doctoral level, within any branch of study or faculty, which the Central Government may, in consultation with the appropriate authority, specify.
5. xxx xxx xxx
6. The Central Educational Institutions shall take all necessary steps, which are required in giving effect to the provisions of Sections 3, 4 and 5 of this Act, for the purposes of reservation of seats in admissions to its academic sessions commencing on and from the calendar year, 2007.
7. Every notification made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be made, the notification 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 under that notification.
14. From the pleadings of both the parties the admitted fact is that the NIT, Agartala has been fully taken over by the Government of India and is being administered and maintained by Ministry of HRD. Besides this, the said Department of Central Government is also having financial control over the Institute. Hence we find no difficulty to hold that the NIT, Agartala is a CEI within the meaning of Section 2(d)(iv) of the Reservation Act.
15. It is true that the NIT which was formerly known as Tripura. Engineering College was established long before by the State of Tripura and the location of the Institute came within the area of 6th Schedule w.e.f. 1-4-1985. In the case of S. Azeez Basha v. Union of India : AIR 1968 SC 662 the Hon'ble Supreme Court while examining the status of Aligarh Muslim University has held that the words 'establishment and administered' also means 'to bring into existence'. The said interpretation was given while examining the scope of administration of University under Article 30(1) of the Constitution. In the case before us, even if it is said that the NIT. Agartala was not established by the Union of India it is certainly a CEI squarely covered within Clause (iv) of Section 2(b) since the Institution is administered and maintained and receiving aid from the Central Government. In this view of the matter the other provisions of the Reservation Act would be squarely applicable to the NIT, Agartala.
16. Section 4 of the Act mandates that if a particular CEI is established in a tribal area, as referred to in the 6th Schedule of the Constitution the reservation benefit as prescribed in Section 3 would not be applicable to any such institution. Section 4 is so compact that it gives no room to differentiate a CEI instituted before coming into force of the Reservation Act or after the enactment of the law. Apparently the Reservation Act was published in the Gazette of India on 4-1-2007 and the NIT, Agartala was taken over by the Central Government w.e.f. 1-4-2006. There may be many more such CEIs in the country and despite that the Parliament did not think in its wisdom to allow such existing technical institutions either to adopt the reservation policy of the State or the reservation ratio prescribed under the Reservation Act. Since the NIT, Agartala has been established and located under 6th Schedule of the Constitution it has been excluded from the purview of Section 3, which prescribes reservation of seats to SC, ST and OBC students.
17. Coming to the question whether reserving seats for SC and ST students in the NIT, Agartala is legally sustainable, we find no difficulty to hold that since the Institute is situated within 6th Schedule area and being maintained and receiving aid from the Central Govt. no such reservation is permissible in law. As noted earlier in this judgment that the learned Central Govt., counsel failed to produce any Notification from the Union of India relaxing exclusion clause for any cogent and tenable ground to NIT, Agartala. However, Sri Talapatra, learned senior counsel for NIT submitted that reservation to SC and ST students is being given as per ratio laid down under Section 3 of the premise that such reservation was given to the students of the aforesaid two communities before the law came into existence. The learned Counsel also submitted that this was informed to the Ministry of HRD and the NIT has received approval vide letter dated 11-7-2008 (Annexure-R/2).
18. In our considered opinion both the explanations of learned Counsel for the NIT are untenable. We are of the considered opinion that the Act cannot be implemented or acted upon in piecemeal manner. If the Institute is out of purview of reservation as per Section 4 no reservation as prescribed under Section 3 is permissible. Besides this, in the letter dated 11-7-2008 (Annexure R-2) the Ministry of HRD has nowhere authorized the NIT, Agartala to continue to give reservation to SC and ST students. In fact in the Office Memo No. 1-1/2005-U.I.A./847 dated. 20-4-2008 the respondent No. 1 has categorically re-stated that the reservation policy would not be applicable to CEIs established under 6th Schedule area. The relevant direction issued to CEIs is reproduced below:
3(iv) The reservation for the OBC and SCs/STs under the CE/Acts shall not apply to minority educational institutions as defined in Section 2(f) of the Act as well as on CEIs established in areas coming under 6th Schedule of the Constitution.
19. As noted earlier NIT, Agartala is heavily relying upon the communication from the Director (NIT) Govt. of India dated 11-7-2008 (Annexure-R/2) to give reservation to SC and ST communities students. We find no difficulty to hold that such a communication cannot be the basis for giving piecemeal reservation. It is needless to mention here that certain procedure has been prescribed for issuing Notification under Section 7 of the Reservation Act and unless any such Notification passes the test laid down under Section 7 it will carry no legal force.
20. For the reasons, assigned herein above, we hold that the writ petition has no merit so as to command the respondents to provide reservations to the students of OBC community. At the same time, we hereby direct the respondents not to provide any reservation to the students of SC and ST communities in the NIT, Agartala until and unless any Notification by a competent authority is issued after adhering the procedure laid down under Section 7 of the Reservation Act.
21. With the aforesaid directions, the writ petition stands disposed of.