Vishal vs Panjab University

G.S. Singhvi, J.—Though several issues have been raised in this petition, during the course of hearing the learned counsel for the petitioner has confined his arguments to the claim of the petitioner for admission to LL.B. 1st Semester only on the ground that candidates belonging to scheduled castes category could not have been admitted against the reserved category seats if such candidates secured higher merit than the general category candidates.

The brief facts of the case are that the petitioner, who belongs to the category of scheduled caste, had applied for admission in the LL.B. Course of the Panjab University, Chandigarh. He claimed benefit of reservation as a member of the Scheduled Caste category. The name of the petitioner came to be included at Sr. No. 79 amongst 130 candidates belonging to the scheduled castes category, who had sought admission during the year 1994-95. Petitioner was interviewed by the Selection Committee but his name was not included in the final list prepared by the respondent-University. He has pleaded that Shri Gurjit Singh, who was placed at Sr. No. 1 in the list of scheduled caste candidates (Selected) had secured 71-68% marks which were more than the marks secured by the general category candidates. Similarly, Devinderjit Kaur, who belongs to the category of scheduled castes, had secured higher marks than the candidates belonging to general category. Notwithstanding their better merit, these candidates have been admitted against the reserved category vacancies and this action of the respondent University has resulted in denial of admission to the petitioner. Petitioner''s contention is that candidates belonging to reserved category are entitled to be admitted in the general category in case they secure better merit than the candidates belonging to the general category.

Learned counsel for the petitioner argued that by giving admission to the candidates belonging to the reserved category without considering their cases for admission against the general category quota despite their better merit qua candidates belonging to the general category, the respondent-University has discriminated persons like the petitioner, who belongs to reserved category and who could have been admitted against the reserved seats. Learned counsel submitted that the decision of the University not to consider the case of Devinderjit Kaur and Gurjit Singh for admission against the general category is wholly arbitrary and unjust and if these two candidates are shifted to the general catewory, the petitioner will certainly be entitled to be admitted against the reserved category seat. He placed reliance on an order passed by a learned Single Judge of this Court on 28th November, 1994 in Kulwant Singh v. Panjab University, C.W.P. No. 12664 of 1994.

Learned counsel appearing for the University contended that Devinderjit Kaur was considered for reserved category because she was interviewed on a date when other reserved category candidates were interviewed. He has also contended that issue of a direction by the Court at this belated stage would serve no purpose because the petitioner will not be able to complete the courses. Lastly, the learned counsel argued that the last candidate admitted against the reserved seat was at Sr. No. 73 in the list of Scheduled Caste candidates and, therefore, the petitioner who is at Sr. No. 79 cannot claim admission against the reserved category seat as a matter of right.

In Kulwant Singh v. Panjab University etc. (Supra), this Court examined the claim of another candidate belonging to reserved category (scheduled castes) and has held that the provision for not considering the candidature of reserved category candidates against the reserved seats in case they secure higher merit so as to be included in the general category is mandatory. The Court further held that in case the candidates belonging to the reserved category do not get admission in the combined merit list, they can always be considered for admission in the reserved category seats. The learned Judge held :-

"In other words, if the candidates belonging to the reserved category/categories are not offered seats in the general category, they would be entitled to consideration in their respective reserved categories."

The Court further held that Gurjit Singh, who had secured higher marks than the general category candidates was entitled to be admitted in the general category and by giving him admission against the reserved category seat the respondent-University had violated the mandate of the relevant clause.

In Jaskaran Singh v. State of Punjab and Ors. (1995) 1 Rev. L.R. 212 a Division Bench of this Court, of which I was a member, has considered almost an Identical question and held that those who belong to reserved category must be given admission against the general seats in case they are more meritorious than the general category candidates. The Division Bench held :-

"A perusal of the afore-quoted instructions would make it clear that prior to their issuance the method adopted for admitting students against open category seats and the reserved seats was that from the merit list of all the students including the reserved and unreserved categories admission was given to them on merit and after filling up the open category seats, the remaining candidates belonging to different reserved categories were offered admission against the reserved seats. This system was given a go-bye by the instructions and the State Medical Colleges were directed to do otherwise. In our opinion, the instructions as they now stand are unreasonable and frustrate the very purpose for which reservations are intended to be made. The object of any reservation is to give some benefit by reserving a few seats for that class for whom reservation is made. The underlying assumption is that such a class of persons is not capable of competing on merits with others because of economic, social, geographical, political or any other reason. It does not, however, imply that if a person from a reserved class does well on merit and secures a higher position than the general candidates, he should not be allowed to take advantage of his merit and compete for the seats meant for the general candidates. The reservation inheres in itself the grant of some concession to a class of persons who are not otherwise likely to get admissions and if any one from that class can get admission on merit, it cannot be said that such a person has been given the benefit of that concession and that he should be given a seat meant only for the unreserved category."

In Indra Sawhney and Ors. v. Union of India and Ors. 1993(1) R.S.J.1 a nine Judges Bench of the Supreme Court considered the issue relating to reservation under Article 16(4) of the Constitution. In paragraph 31 of that judgment, the Supreme Court observed as under :-

"In this connection it is well to remember that the reservation under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging, to say, Scheduled Castes get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open compensation candidates."

Similarly, in Sida Nitinkumar Laxmankumar Laxmanbhai and Anr. v. Gujarat University and Ors. AIR 1991 Guj 43 a learned Judge of the Gujarat High Court has observed as under :-

"From the aforesaid settled legal position it is evident that the posts or seats are reserved for individuals belonging to particular caste, community or class. But reverse is not true. Members belonging to Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class for whom reservation of posts is made are not reserved for these seats or posts. They cannot be asked to occupy only reserved seats/posts. They would be and should be free to occupy any seat or post including unreserved posts, they should prove their merit like any other citizen who is not entitle to benefits of reservation. To deny them the right to occupy any seat other than the seat reserved would amount to denying them the right of equality enshrined under Article 14 of the Constitution."

In view of these pronouncements, it must be held that the action of the respondent-University in granting admission to the reserved category candidates only against the reserved seats without giving them admission against the general category seats is arbitrary and is unjustified. This is also violative of the policy framed by the respondent-University for giving admission to the candidates to the LL.B. Course for 1994-95.

Argument of the learned counsel for the respondent-University that the petitioner should be denied admission on account of delay does not merit acceptance for the simple reason that the petitioner had approached this Court as early as in the month of September, 1994. The delay, if any, has been in decision of the writ petition and for this delay the petitioner cannot be penalised. However, another submission of the learned counsel for the University that the petitioner cannot be given admission as a matter of right does merit consideration. The petitioner is admittedly at Sr. No. 79 in the list of reserved-category candidates. There are 4 candidates between Sr. No. 73 and 79. Merely because those candidates may not have chosen to file writ petition on account of poverty or lack of resources, their right of consideration for admission according to their merit cannot be ignored by the Court. The right of equality which is wide and pervasive and has to be respected by the Courts while passing orders under Article 226 of the Constitution of India.

In the result, the writ petition is allowed. It is declared that denial of admission to the reserved category against general seats despite their better merit is arbitrary and unconstitutional. Consequently, denial of admission to the reserved category candidates, who are less meritorious, is also arbitrary. Respondents are directed to treat the admission of Devinderjit Kaur as one made against the general seat. The reserved category seat which becomes vacant due to such consideration shall be filled by considering the candidature of the candidates of the scheduled castes category who had appeared before the Selection Committee and found otherwise suitable. This consideration should be made by the respondent-University at the earliest and admission should be given to the candidates as per their merit. If no other candidate is available in the merit list of reserved category, the petitioner should be given such admission and he should be allowed to pursue his Course in future without any hinderance. Costs made easy.