Gauhati High Court
Shri Suman Kumar Banik vs The State Of Tripura And Ors on 3 February, 2012
Author: I.A.Ansari
Bench: I.A.Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
(AGARTALA BENCH)
WP(C) NO.144 OF 2011
SHRI SUMAN KUMAR BANIK,
S/O SHRI ABINASH CHANDRA BANIK,
R/O NUTAN PALLY, KRISHNANAGAR,
P.O. AGARTALA, P.S. WAST AGARTALA,
SUB-DIVISION. AGARTALA, DIST. WEST TRIPURA.
----- Petitioner.
- Vs -
1. THE STATE OF TRIPURA,
REPRESENTED BY THE SECRETARY
TO THE GOVERNMENT OF TRIPURA,
DEPARTMENT OF SCHOOL EDUCATION,
HAVING HIS OFFICE AT NEW SECRETARIAT COMPLEX,
GORKHABASTI, P.O. KUNJABAN,
SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
2. THE DIRECTOR OF SCHOOL EDUCATION,
HAVING HIS OFFICE AT OLD SECRETARIAT BUILDING,
AKHAURA ROAD, P.O. AGARTALA, P.S. WEST AGARTALA,
SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
3. THE DISTRICT EDUCATION OFFICER,
WEST DISTRICT ZONAL OFFICE,
HAVING HIS OFFICE AT KUNJABAN,
P.O. KUNJABAN, AGARTALA, WEST TRIPURA.
4. THE HEAD MASTER,
UMAKANTA ACADEMY,
AKHAURA ROAD, P.O. AGARTALA, P.S. WEST AGARTALA,
SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
----- Official Respondents.
5. SRI SOUMIK DAS (MINOR), REPRESENTED BY HIS FATHER, SRI PULIN CHANDRA DAS, S/O LATE SANTOSH CHANDRA DAS, R/O VILLAGE-DHUPTALI, P.O. DHUPTALI, P.S. KAKRABAN, SUB-DIVN. UDAIPUR, DIST. SOUTH TRIPURA.
----- Private Respondents.
For the Petitioner : Mr. Somik Deb, Mr. S Lodh,
Mr. S Datta,
Mr. N Sarkar, Advocates.
For the State respondents : Mr. DP Kundu, Advocate GeneraL,
Tripura
Ms. R Guha, Advocate.
For the Private respondents : Mr. AK Bhowmik, Senior Advocate.
Page No. 2
WP(C) NO.195 OF 2011
SRI SIDDHARTHA BANIK,
S/O LATE BHUPESH CHANDRA BANIK,
R/O BANAMALIPUR, JURA DIGHIR PAR (WEST),
P.O. AGARTALA, P.S. EAST AGARTALA,
SUB-DIVISION. AGARTALA, DIST. WEST TRIPURA.
----- Petitioner.
- Vs -
1. THE STATE OF TRIPURA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF TRIPURA, DEPARTMENT OF SCHOOL EDUCATION, HAVING HIS OFFICE AT NEW SECRETARIAT COMPLEX, GORKHABASTI, P.O. KUNJABAN, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
2. THE DIRECTOR OF TRIBAL WELFARE, GOVERNMENT OF TRIPURA, LAKE CHOWMOHANI, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
3. THE DIRECTOR OF SCHOOL EDUCATION, HAVING HIS OFFICE AT OLD SECRETARIAT BUILDING, AKHAURA ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
4. THE HEAD MASTER, SISHU BIHAR H.S. SCHOOL, MANTRI BARI ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
----- Official Respondents.
5. MASTER SAMRAT SARKAR, S/O NOT KNOWN (selected for admission in Class-IV in Shishu Bihar HS School), notice be served through HEAD MASTER, SISHU BIHAR HS SCHOOL, MANTRI BARI ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
6. MISS ASMITA NAMA, D/O NOT KNOWN, (selected for admission in Class-IV in Shishu Bihar HS School), notice be served through HEAD MASTER, SISHU BIHAR HS SCHOOL, MANTRI BARI ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA. ----- Private Respondents. For the Petitioner : Mr. Somik Deb, Mr. S Lodh, Mr. S Datta, Mr. N Sarkar, Advocates.
For the State respondents : Mr. S Chakraborty, Addl. Govt. Advocate.
Mr. DC Nath, Mr. SC Das, Mr. RK Das, Advocates For the Private respondents : Mr. AK Bhowmik, Senior Advocate. WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 3 WP(C) NO.205 OF 2011 SRI PARITOSH BISWAS, S/O LATE PARESH CHANDRA BISWAS, C/O SHRI HARIDHAN DEBNATH, R/O DURJOY NAGAR, NEAR HOLY CROSS SCHOOL, P.O. KUNJABAN, P.S. AIRPORT, SUB-DIVISION. AGARTALA, DIST. WEST TRIPURA.
----- Petitioner.
- Vs -
1. THE STATE OF TRIPURA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF TRIPURA, DEPARTMENT OF SCHOOL EDUCATION, HAVING HIS OFFICE AT NEW SECRETARIAT COMPLEX, GORKHABASTI, P.O. KUNJABAN, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
2. THE DIRECTOR OF TRIBAL WELFARE, GOVERNMENT OF TRIPURA, LAKE CHOWMOHANI, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
3. THE DIRECTOR OF SCHOOL EDUCATION, HAVING HIS OFFICE AT OLD SECRETARIAT BUILDING, AKHAURA ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
4. THE HEAD MASTER, SISHU BIHAR H.S. SCHOOL, MANTRI BARI ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
----- Official Respondents.
5. MISS TRIYASHA BHOWMIK, D/O NOT KNOWN, (selected for admission in Class-II in Shishu Bihar HS School), Notice be served through HEAD MASTER, SISHU BIHAR HS SCHOOL, MANTRI BARI ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
6. MISS SNIGDHA SARKAR, D/O NOT KNOWN, (selected for admission in Class-II in Shishu Bihar HS School), notice be served through HEAD MASTER, SISHU BIHAR HS SCHOOL, MANTRI BARI ROAD, P.O. AGARTALA, P.S. WEST AGARTALA, SUB-DIVISION-AGARTALA, DIST. WEST TRIPURA.
----- Private Respondents.
WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011
Page No. 4
For the Petitioner : Mr. Somik Deb, Mr. S Lodh,
Mr. S. Datta,
Mr. N Sarkar, Advocates.
For the State respondents : Mr. S Chakraborty, Addl. Govt.
Advocate
Mr. DC Nath, Mr. SC Das,
Mr. RK Das, Advocates.
For the Private respondents : Mr. AK Bhowmik, Senior Advocate.
BEFORE
THE HON'BLE MR. JUSTICE I.A.ANSARI
Dates of hearing : 16-09-2011 & 25-01-2012
Date of Judgment & Order : 03.02.2012
JUDGMENT & ORDER
Because the fact that the issues, raised in this set of three writ petitions, are common in nature, all these three writ petitions, based on substantially similar facts, have been heard together for the purpose of final disposal, on the request made by learned counsel for the parties concerned, and are, therefore, being disposed of, now, by this common judgment and order.
2. Let me, first, set out the facts of the three writ petitions:
WP(C) No. 144 of 2011:
The case of the petitioner is, in brief, thus:
(i) The respondent No. 3, namely, District Education Officer, West Tripura, Zonal Office, Agartala, issued a notification, in a local daily, on 09-01-2011, inviting applications for admission of 120 boys, through lottery, in the nursery stage of Uma Kanta Academy (English Medium) School, Agartala, clearly stating, in the notification aforementioned, that out of the total number of 120 seats, 20 seats were reserved for Scheduled Castes (SC), 37 seats were reserved for WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 5 Scheduled Tribes (ST), 2 seats were reserved for Physically Handicapped (PH) persons and remaining 61 seats were earmarked for unreserved (UR) candidates. Pursuant to the advertisement, the petitioner submitted a duly filled up form for admission of his son into the said school.
(ii) The lottery was conducted on 24-02-2011. But before the commencement of the lottery, the school authorities verbally announced that two seats had been reduced from the UR quota and the said two seats had been added to the quota of the PH persons, raising thereby the quota of seats, for PH persons, from 2 to 4.
(iii) On the conclusion of the lottery, 59 UR candidates were selected for admission and 30 UR candidates were kept in waiting list.
The name of the petitioner's son figured at Sl. No. 14 in the waiting list of the UR category. For not taking admission of one UR candidate, one candidate from the waiting list of the UR category was admitted into the school. Consequently, the name of the petitioner's son, now, appears at Sl. No. 13 of the waiting list of candidates of UR categories. Similarly, after selecting 20 SC candidates for admission, 30 SC candidates were kept in the waiting list.
(iv) As far as the candidates belonging to ST are concerned, though there were 37 seats, which had been kept reserved for them in terms of the notification, dated 09-01-2011, aforementioned, only 11 candidates from the ST came to be admitted against the said quote of
37. However, for filling up 27 vacant seats, which were meant for the candidates belonging to ST and 3 vacant seats, kept reserved for PH persons, respondent No. 3 issued another notification on 10-02-2011. WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 6 Pursuant to the notification, dated 10-02-2011, only 12 candidates were admitted.
(v) Thereafter, respondent No. 3 issued yet another notification, dated 19-03-2011, stating to the effect that 17 vacant seats, meant for candidates of ST, would be filled up from the waiting list of the candidates of SC category. Aggrieved by the notification, dated 19-03- 2011, whereby respondent No. 3 made available 17 vacant seats, which were meant for ST to be filled up from the waiting list of the candidates belonging to the SC, the writ petition, under Article 226 of the Constitution of India, has been filed, impugning the notification, dated 19-03-2011, aforementioned and seeking appropriate reliefs, the writ petitioners' contention being that in the face of the scheme of reservation in favour of the Scheduled Castes and Scheduled Tribes (Reservation of vacancies in Services and posts) Act, 1991 (in short, 'the SC and ST Reservation Act'), it is legally impermissible for the State to allow the vacant seats, originally, kept reserved for the candidates of ST, to be filled up by candidates belonging to SC by invoking exchange method; whereas the said seats, according to the writ petitioners, ought to be filled up on the basis of merit. WP(C) No. 195 of 2011:
(i) To fill up vacant seats in Classes-II, IV, V, VI, VII and VIII in Sishu Bihar Higher Secondary School, Agartala, respondent No. 4, namely, Headmaster, Sishu Bihar Higher Secondary School, Agartala, issued an admission notice, dated 11-02-2011, inviting applications for admission into the vacant seats of the said classes. In the notice aforementioned, it was mentioned that for Class-IV, eight seats would be filled up through admission test and that the admission test would WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 7 be held on 09-03-2011 and that out of the eight seats in Class-IV, four seats were earmarked for UR candidates, 3 seats were reserved for candidates belonging to ST and one seat stood reserved for the candidates belonging to SC. The result of the admission test was published by notification, dated 16-03-2011.
(ii) By the notification, dated 16-03-2011, aforementioned, respondent No. 4, namely, Headmaster, Sishu Bihar Higher Secondary School, Agartala, has selected four candidates from UR category, one candidate from SC category and one candidate from ST category, as against three seats, which were kept reserved for ST. By the notification, dated 16-03-2011, respondent No. 4 also published the waiting list containing the names of three candidates of UR category and three candidates of SC category for admission into Class-IV. The name of the petitioner's daughter figures at Sl. No. 1 in the waiting list of UR category for Class-IV. By the notice, dated 16-03-2011, respondent No. 4 directed all the selected candidates, in all the classes, to take admission, on 23-03-2011, after collecting admission forms on 16-03-2011.
(iii) By the notice, dated 16-03-2011, it was also notified by respondent No. 4 that the vacant seats would be filled up from the candidates of waiting list on 24-03-2011. Till 17-03-2011, two seats were kept reserved for ST candidates. Seeking admission as against the said two vacant seats, which were meant for the ST candidates, the petitioner submitted an application, on 17-03-2011, to the respondent No. 4 urging the respondent No. 4 to de-reserve the said two seats.
WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 8
(iv) However, respondent No. 4 submitted a proposal to the respondent No. 2, namely, Director of Tribal Welfare, Government of Tripura, seeking to fill up the said two vacant seats, which were meant for the candidates of ST and also other vacant seats. In response to the proposal, so submitted by the respondent No. 4, respondent No. 2 wrote a note, on 20-04-2011, allowing respondent No. 4 to fill up the said vacant two seats, which were meant for ST, by candidates of SC, by taking recourse to exchange method.
(v) In furtherance of the impugned note, dated 20-04-2011, respondent No. 4 issued a notification, dated 25-04-2011, and selected the private respondent No. 5 and 6, who belong to SC, for admission into Class-IV by taking recourse to exchange method. By the said notification, dated 25-04-2011, respondent No. 4 also directed respondent Nos. 5 and 6 to take admission, on 20-05-2011, at 11:00 noon.
(vi) Aggrieved by the permission granted by respondent No. 2 to the respondent No. 4 to fill up, by two candidates of SC the two vacant seats, which were, originally, kept reserved for the candidates of ST, and also aggrieved by the action of the respondent No. 4 in inviting the respondent Nos. 5 and 6 herein to take admission, the writ petition, under Article 226 of the Constitution of India, has been filed by the writ petitioner seeking appropriate reliefs, the writ petitioners' contention being that in the face of the scheme of reservation in favour of the Scheduled Castes and Scheduled Tribes (Reservation of vacancies in Services and posts) Act, 1991, it is legally impermissible for the State to allow the vacant seats, originally, kept reserved for the candidates of ST, to be filled up by candidates belonging to SC by WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 9 invoking exchange method; whereas the said seats, according to the writ petitioners, ought to be filled up on the basis of merit. WP(C) No. 205 of 2011:
(i) To fill up vacant seats in Classes-II, IV, V, VI, VII and VIII in Sishu Bihar Higher Secondary School, Agartala, respondent No. 4, namely, Headmaster, Sishu Bihar Higher Secondary School, Agartala, issued an admission notice, dated 11-02-2011, inviting applications for admission into the vacant seats of the said classes. In the notice aforementioned, it was mentioned that for Class-II, nine seats would be filled up through admission test and the admission test would be held on 09-03-2011 and that out of nine seats in Class-II, five seats stood earmarked for UR candidates, 3 seats stood reserved for candidates belong to ST and one seat stood reserved for the candidates belonging to SC. The result of the admission test was published by notification, dated 16-03-2011. By the notification, dated 16-03-2011, aforementioned, respondent No. 4, namely, Headmaster, Sishu Bihar Higher Secondary School, Agartala, has selected five candidates from UR category, one candidate from SC category and one candidate from ST category for admission into Class-II. By the notification, dated 16-
03-2011, respondent No. 4 also published the waiting list containing the names of four candidates of UR category and three candidates of SC category for admission into Class-II. The name of the petitioner's son figures at Sl. No. 2 of the waiting list meant for UR category of candidates. By the notice, dated 16-03-2011, respondent No. 4 directed all the selected candidates, in all the classes, to take admission, on 23-03-2011, after collecting admission forms on 16-03- 2011.
WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 10
(ii) By the notice, dated 16-03-2011, it was also notified by respondent No. 4 that the vacant seats would be filled up from the candidates of waiting list on 24-03-2011. The respondent No. 4, however, submitted a proposal to the respondent No. 2, namely, Director of Tribal Welfare, Government of Tripura, seeking to fill up the two vacant seats, which were meant for the candidates of ST and also other vacant seats. In response to the proposal, so submitted by the respondent No. 4, respondent No. 2 wrote a note, on 20-04-2011, allowing respondent No. 4 to fill up the said vacant two seats, which were meant for ST, by candidates of SC, by taking recourse to exchange method.
(iii) In furtherance of the impugned note, dated 20-04-2011, respondent No. 4 issued a notification, dated 25-04-2011, and selected the private respondent No. 5 and 6, who belong to SC, for admission into Class-II, by taking recourse to exchange method. By the said notification, dated 25-04-2011, respondent No. 4 also directed respondent Nos. 5 and 6 to take admission, on 20-05-2011, at 11:00 noon.
(iv) Aggrieved by the permission granted by respondent No. 2 to respondent No. 4 to fill up the two vacant seats, which were, originally, kept reserved for the candidates of ST, by two candidates of SC and also assigned by the action of the respondent No. 4 in inviting respondent Nos. 5 and 6 herein to take admission, the writ petition, under Article 226 of the Constitution of India, has been filed by the writ petitioner seeking appropriate reliefs, the writ petitioners' contention being that in the face of the scheme of reservation in favour of the Scheduled Castes and Scheduled Tribes (Reservation of WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 11 vacancies in Services and posts) Act, 1991 (in short, 'the SC and ST Reservation Act'), it is legally impermissible for the State to allow the vacant seats, originally, kept reserved for the candidates of ST, to be filled up by candidates belonging to SC by invoking exchange method; whereas the said seats, according to the writ petitioners, ought to be filled up on the basis of merit.
3. Resisting the writ petitions, the respondents have contended to the effect, inter alia, that by office memorandum, dated 12.05.1995, issued by the Department of Welfare for Scheduled Castes, Government of Tripura, when it had been provided that in case of non- availability of eligible SC candidates or ST candidates against their reserved quota of seats, the seats may be exchanged between the available SC & ST candidates, it is perfectly legal and legitimate, on the part of the Government, to allow the filling up of vacant seats, which were, originally, meant for ST, by the wait listed candidates belonging to the SC, particularly, when similar memorandum was issued, on 04.03.1996, by the Department of Welfare for Scheduled Tribes, Government of Tripura, wherein it was specifically provided that in case of non-availability of SC/ST candidates even by exchange method, the unfilled reserved seats if any, may be distributed amongst the eligible UR candidates subject to the condition that the reserved seats are carried forward to the next academic year for distribution amongst the eligible SC/ST candidates of that year.
4. Further case of the respondents is that under the office memorandum, issued, on 12-01-2005, by the Directorate of Welfare for Scheduled Castes and OBC, Government of Tripura, it had been provided that if required number of SC/ST candidates are not WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 12 available, seats may be exchanged between SCs & STs. For example, if required number of ST candidates is not available, the ST reserved seats may be filled up by SC candidates and vice-versa. If both SC & ST candidates are not available, the reserved seats may be filled up by unreserved category of candidates with the prior approval of the Director for Welfare of Scheduled Castes and OBC or the Director for Welfare of Scheduled Castes, as the case may be.
5. I have heard Mr. Somik Deb, learned counsel for the petitioners in the three writ petitions, and Mr. AK Bhowmik, learned Senior counsel, appearing for the private respondents. I have also heard Mr. DP Kundu, learned Advocate General, Tripura, assisted by Ms. R Guha, learned counsel appearing on behalf of State respondents in WP(C) No. 144 of 2011, and Mr. S Chakraborty, learned Government Advocate, appearing on behalf of State respondents in WP(C) Nos. 195/11 & 205 of 2011.
6. The core issue, in this set of writ petitions, is: whether the unfilled seats, which were kept reserved for candidates of Scheduled Tribes, in a school, in the State of Tripura, can be legally filled up from the waiting list of candidates of Scheduled Caste by applying exchange method ?
7. Presenting the case, on behalf of the petitioners, Mr. Somik Deb, learned counsel, has taken me extensively through various provisions of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 (hereinafter referred to as the 'SC and ST Reservation Act'), more particularly, Sections 5 and 16 thereof, to show that Section 5 provides 17% reservation for Scheduled Castes and 31% reservation for Scheduled Tribes in the admission of students to educational WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 13 institutions and the Government has the power to review, from time to time, the implementation of the reservation policy and take adequate measures including increase of percentage of reservation. The SC and ST Reservation Act does not permit, according to Mr. Deb, filling up of unfilled seats of one reserved category by the candidates of the other reserved category.
8. In other words, what Mr. Deb, learned counsel, has contended is that exchange method is not perceived by the SC and ST Reservation Act and, hence, in the present case, the unfilled seats, which were, otherwise, kept reserved for the candidates of Scheduled Tribes, cannot be filled up from the waiting list of candidates belonging to Scheduled Castes and such seats, according to Mr. Deb, can be filled up on the basis of merit alone. In support of his submission, Mr. Deb places reliance on the decision of the Supreme Court, in Jagdish Singh v. Punjab Engineering College, reported in (2009) 7 SCC 300, and MRF Ltd. V. Mahohar Rarrikar and others, reported in (2010) 11 SCC 374, and Shanti Sports Club and another v. Union of India and others, reported in (2009) 15 SCC 705.
9. It is pointed out by Mr. Deb, learned counsel, that in order to sustain their recourse to exchange method, the respondents rely on three Memoranda, dated 12.05.1995, 12.01.2005 and 04.03.1996. These Memoranda have been issued, further points out Mr. Deb, by the Director, Directorate for Welfare of Scheduled Castes and Other Backward Classes (in short, 'OBC'), Tripura, and these Memoranda do not have the approval of the Cabinet and cannot, therefore, be relied upon by the State respondents as the policy of the State Government WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 14 or as an executive decision of the State Government in terms of Article 162 or 166 of the Constitution of India.
10. The SC and ST Reservation Act, according to Mr. Deb, does not empower the Director, Directorate for the Welfare of Scheduled Castes and OBC, to issue any order, memorandum or notification and, hence, the memoranda aforementioned suffer from the vice of lack of jurisdiction, particularly, when the memoranda clearly indicate that the decision to apply exchange method was taken by the Scheduled Castes Welfare Advisory Committee and not by the State Government. Mr. Somik Deb points out that the second memorandum, dated 12.01.2005, only reiterates what is contained in the Memorandum, dated 12.05.1995 and, as far as the third memorandum, dated 04.03.1996, is concerned, the same has been issued by the Joint Secretary to the Government of Tripura, but none of the three memoranda shows, contends Mr. Deb, that they are policy decisions of the State Government, having approval of the Cabinet, and these memoranda cannot, therefore, be regarded as decisions of the Government of Tripura in terms of Article 162 nor have these memoranda been authenticated and issued in the name of the Governor of Tripura in consonance with Article 166 of the Constitution of India.
11. Mr. Deb has also drawn attention of this Court to Section 16 of the SC and ST Reservation Act and contended that this Section has an overriding effect on the laws, rules, regulations and orders, which run contrary to the scheme of the SC and ST Reservation Act and, in the face of the provisions, embodied in Section 16, the provisions of the SC and ST Reservation Act, contends Mr. Deb, must be taken to have WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 15 superseded the exchange method, which had been provided for earlier in the three memoranda aforementioned. In no way, therefore, submits Mr. Deb, the State respondents can take resort to exchange method and fill up the unfilled seats, kept reserved for Scheduled Tribe candidates, by the waitlisted candidates of Scheduled castes.
12. Though Mr. Deb has contended, as already indicated above, that the three memoranda aforementioned stand superseded by Section 16 of the SC and ST Reservation Act as they run counter to the provisions embodied in Section 16, Mr. Deb has, nevertheless, relied upon the decisions, in Shanti Sports Club and another v. Union of India and others, reported in (2009) 15 SCC 705, MRF Limited v. Manohar Parrikar and others, reported in (2010) 11 SCC 374, and Central Bureau of Investigation v. Ravi Shakdar Srivastava, IAS and another reported in (2006) 7 SCC 188, to show that without the decisions having been expressed in the name of the Governor of the State, the same cannot, according to the Rules of the Executive Business of the State Government, be regarded as the executive decisions of the Government under Article 162 read with Article 166 of the Constitution of India.
13. Countering the submissions, made on behalf of the writ petitioners, Mr. D. P. Kundu, learned Advocate General, Tripura, who appears on behalf of the State respondents, in WP(C) 114/2011, has, first, pointed out that the Constitutional validity of the SC and ST Reservation Act and the Rules, framed thereunder, are not under challenge in the writ petitions. The petitioners, also points out Mr. Kundu, have not challenged the validity of the Memoranda, which the State respondents have relied upon to sustain their decision to resort WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 16 to exchange method for the purpose of filling up the vacant seats in the schools concerned.
14. Referring to the provisions of the SC and ST Reservation Act, the Rules framed thereunder, and Article 15(4), Article 15(5), Article 38, Article 46 and the Preamble of the Constitution, the learned Advocate General has submitted that the Constitution and the laws, in force, require the State to make provisions for economic and social advancement of the Scheduled Castes and Scheduled Tribes. The SC and ST Reservation Act, submits the learned Advocate General, has been enacted to reserve seats for the candidates of Scheduled Castes and Scheduled Tribes, in educational institutions too, for their educational, social and economic advancement. Fundamental Rights and the Directive Principles together constitute, points out Mr. Kundu, the conscience of the Constitution. In support of his submission, that Fundamental Rights and the Directive Principles, when combined together, constitute the conscience of the Constitution, Mr. Kundu has placed reliance upon the case of V. Markendeya v. State of A.P., reported in (1989) 3 SCC 191 and I. R. Coelho v. State of T.N., reported in (2007) 2 SCC, I. R. Coelho v. State of T.N., reported in (2007) 2 SCC 1.
15. It is also submitted by Mr. Kundu that being a beneficial legislation, the statute, i.e., the SC and ST Reservation Act, should receive liberal construction from the Court with a view of ensuring effective implementation of the legislative intent. At the same time, Mr. Kundu also points out, that whenever such beneficial legislation has a scheme of its own, the Court cannot travel beyond the scheme of the legislation and extend the scope of the statute to anyone on the pretext of extending the statutory benefit to those, who are not covered WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 17 by the scheme of the legislation. In support of these submissions, Mr. Kundu, learned Advocate General, has placed reliance on the case of Regional Director, ESI Corpn. V. Ramanuja Match Industries, reported in (1985) 1 SCC 218, Bombay Anand Bhavan Restaurant v. Deputy Director, Employees-State Insurance Corporation, reported in (2009) 9 SCC 61, Edukanti Kistamma v. S. Venkatareddy, reported in (2010) 1 SCC 756, Revanasiddappa v. Mallikarjun, reported in (2011) 11 SCC 1 and Union of India v. Nidip Textile Processors (P) Ltd., reported in (2012) 1 SCC 226.
16. Mr. Kundu, learned Advocate General, submits that having not been covered by the SC and ST Reservation Act, the children of the writ petitioners cannot be given the benefit of the SC and ST Reservation Act even if the seats remain vacant, but so far as the State respondents are concerned, they are, according to learned Advocate General, within the ambit of their power in relying upon the policy decision of the State Government, as evidenced by the three memoranda aforementioned, which, undoubtedly, provide for exchange method so far as the admission of the Scheduled Caste and Scheduled Tribe candidates are concerned.
17. As far as Mr. S. Chakraborty, learned counsel for the State respondents, in WP(C) 195/2011 and WP(C) 205/2011, is concerned, he has adopted the arguments advanced by the learned Advocate General.
18. Appearing on behalf of the private respondents, Mr. AK Bhowmik, learned Senior counsel, has, by referring to the provisions of Article 15(4) of the Constitution of India, submitted that the State can make special provisions, under Clause (4) of Article 15, for advancement of, amongst others, SCs and STs and the reservation, WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 18 which the State respondents seek to give to the SCs, are in keeping with the scheme of Article 15(4) inasmuch as special provisions need not necessarily be made by legislation and can, therefore, be made, contends Mr. Bhowmik, by executive instructions as have been done in the present case.
19. Referring to, and relying upon, a decision of a Division Bench of this Court, in Civil Rule No. 61/1979 (Shri Sunil Kumar Datta -vs- The State of Tripura and 4 others), decided on 22-04-1985, Mr. Bhowmik has contended that this decision clearly shows that an executive instruction need not be expressed in the name of the Governor inasmuch as the Division Bench has, relying upon the case of R. Chitralekha & Venkatesubba Reddy -vs- State of Mysore and others (AIR 1964 SC 1823), held that omission to express the State's executive decision, in the name of the Governor, is a mere irregularity and would not vitiate the executive decision and that by an executive decision, provisions, as contemplated under Article 15(4), may be made for advancement of Scheduled Castes and Scheduled Tribes.
20. In the case at hand, according to Mr. Bhowmik, the memoranda, which the State respondents rely upon to save their impugned actions, are provisions in keeping with the scheme of Article 15(4) and cannot be interfered with.
21. It is also contended by Mr. Bhowmik that it was possible for the State to take the policy decision, in addition to the legislation, in question, namely, Scheduled Castes and Scheduled Tribes Reservation Act, 1991, and give benefit of reservation to SC and ST in matters of admission into educational institutions.
WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 19
22. Repelling the submissions made on behalf of the respondents, Mr. Somik Deb, learned counsel, has submitted that though Article 15(4) permits the State to make special provisions for advancement of, amongst others, SC and ST, the State cannot make provisions for reservations, in favour of the SC and ST, so far as admissions, in educational institutions, are concerned, by taking recourse to Article 15(4) inasmuch as such a reservation can, now, be made, contends Mr. Deb, by resorting to Clause (5) of Article 15; but this clause makes it clear, points out Mr. Deb, that the reservation has to be made 'by law'.
23. In the present case, according to Mr. Deb, there is no 'law' providing for reservation, in educational institutions, by taking recourse to exchange method. This apart, by referring to Rule 13(5) and Rule 8(8) of the Tripura Scheduled Castes and Scheduled Tribes Rules, 1992 (in short, 'the Rules of 1992'), Mr. Deb submits that Rule 13(5) makes provisions for carrying forward of the reserved posts, in Government services, in favour of Scheduled Castes and Scheduled Tribes and Rule 8(8) makes provisions for exchange method for filling up unreserved seats so far as recruitments to Government services are concerned; whereas no such provisions for carrying forward or exchange method have been made, points out Mr. Deb, in the SC and ST Reservation Act and/or in the Rules of 1992 in respect of admission into educational institutions.
24. Pointing to the provisions of Section 16 of the SC and ST Reservation Act, Mr. Deb has also contended that if a decision of the Government ─ even if such a decision is in the form of a policy decision ─ goes impliedly contrary to, or inconsistent with, the scheme WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 20 of the SC and ST Reservation Act and/or the Rules framed thereunder, such a decision cannot survive, because Section 16 has overriding effect on all the laws, which run contrary thereto and there need not, therefore, be, according to Mr. Deb, any express inconsistency between the Government's policy decisions and the scheme of the SC and ST Reservation Act.
25. In the present case, contends Mr. Deb, the Government's decision of providing reservation by resorting to exchange method is contrary to the scheme of the SC and ST Reservation Act and cannot, therefore, in the light of the provisions of Section 16, be sustained.
26. Let me, now, come to the merit of the rival submissions made before this Court. To start with, it is appropriate to take note of the difference between the scopes of Article 15(4) vis-à-vis the ambit of Article 15(5). For this purpose, Article 15(4) and Article 15(5) are reproduced below:
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. -
(1) ***** ***** *****
(2) ***** ***** *****
(3) ***** ***** *****
(4) Nothing in this article or in clause(2) of article 29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in Sub-clause (g) of Clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 21 Castes and the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."
27. A bare reading of Article 15(4) and 15(5) clearly shows that while Article 15(4) permits the State to make special provisions for advancement of, amongst others, SC and ST, it does not specifically empower the State to make provisions, in favour of SC and/or ST, so far as their admissions into educational institutions are concerned. This apart, had it been possible for the State to freely make special provisions, as regards reservation of seats for SC and ST in matters of admissions to educational institutions, Article 15(5) was not really necessary.
28. What, therefore, can be deduced from Article 15(5) is that the State cannot make special provisions for reservation of seats, in favour of SC or ST, so far as admissions to educational institutions are concerned, except by making 'law', as envisaged by Article 15(5).
29. What also needs to be noted is that while Article 15(4) enables the State to make special provisions for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes, Article 15(5) makes it clear that the special provisions, in so far as the same relate to admissions in educational institutions, the same cannot be made except by means of 'law'.
30. It is time to point out that, while interpreting an Article of the Constitution, which makes an enabling provision resulting into negation of the equality clause enshrined in Article 14, Article 15(1), WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 22 Article 19(1)(g) and Article 29(2) of the Constitution of India, the enabling provision deserves strict construction so that none derives benefit by defeating the guarantee of equality.
31. One can also not lose sight of the fact that there is nothing on record to show that the memoranda, which the respondents rely upon, were a result of the decision taken by the Cabinet or any authority, authorized in this behalf, in terms of the Rules of Executive Business of the State Government and in tune with Article 166(3) of the Constitution of India. It is undisputable that an administrative instruction is not a law within the meaning of Article 13 of the Constitution (See Dwarka Nath Tewari and others v. State of Bihar and others, AIR 1959 SC 249, Punit Rai v. Dinesh Chaudhary, reported (2003) 8 SCC 204, and Anjan Kumar v. Union of India and others, reported in (2006) 3 SCC 257)
32. Whether the 'law', which Article 15(5) speaks of, has to be a legislation or it can be a decision, in terms of Article 162 read with Article 166, is not material in the present case, because there is already a piece of legislation covering the field, in the State of Tripura, inasmuch as the SC and ST Reservation Act had, originally, provided for reservation in favour of SC and ST so far as recruitment to State Government services were concerned. Consequently, even the relevant rules, namely, the Rules of 1992, originally, made provisions so far as recruitments to Government services were concerned and it was on introduction of Clause (5) of Article 15 by the Constitution (Ninety- third) Amendment Act, 2005 (which came into effect on 20-01-2006), that the provisions for reservation, in favour of SC and ST, in matters of admission in educational institution were made by Section 5 with WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 23 the help of Second Amendment Act, 2005, which, admittedly came into effect on 14-02-2006.
33. Thus, the provisions, for reservation, under the SC and ST Reservation Act, in favour of SC and ST, in matters of their admission into educational institutions, have been made by deriving strength from Article 15(5) and, that too, with effect from 14.02.2006. Section 5 reads as under:
"5. Reservation for Scheduled Castes and Scheduled Tribes in educational Institutions, in selection of students for higher studies and in selection of candidates and in- service personnel for higher studies and training:
(a) There shall be seventeen percent reservation for the Scheduled Castes and thirty-one percent reservation for the Scheduled Tribes in admission of students to educational institutions, in selection for candidates and in-service personnel for higher studies or training;
Provided that the State Government may, from time to time, review the implementation of the reservation policy and take adequate measures including increase of percentage of reservation as mentioned in Sub-Section (a) above;
(b) The candidates belonging to the Scheduled Castes and the Scheduled Tribes who qualify for selection on merit, shall be included in the general list and not against the reserved quota."
34. From a careful reading of Section 5, what becomes evident is that Section 5 makes provisions for reservation to the extent of 17% in favour of SC and to the extent of 31% in favour of ST in matters of admission of students to educational institutions making it further clear that the candidates belonging to SC and ST, who qualify for selection on merit, shall be included in the general list and not against reserved quota. There is, admittedly, no provisions, in the SC and ST WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 24 Reservation Act and/or the Rules framed thereunder, for carrying forward the unfilled reserved seats nor is there any provisions for taking resort to exchange method meaning thereby that the seats, which are left vacant due to non-availability of candidates, belonging to ST, cannot be filled up by the candidates of SC and vice-versa. In short, there is absolutely no provision made, in Section 5, allowing the unfilled seats of any of the reserved categories to be filled up by the other reserved category.
35. Contrary to the above scheme of the SC and ST Reservation Act in respect of admission to educational institutions, Rule 13(5) make not only provisions for maintenance of roster, but also makes it clear by the proviso appended thereto that the rule of carrying forward shall not apply to the case of admissions to educational institutions. This apart, Rule 8(8) makes provisions for exchange method to be applied in matters of recruitments; but no such provision has been made as far as admissions to educational institutions are concerned.
36. The scheme of the SC and ST Reservation Act, therefore, is that when the seats, meant to be kept reserved for SC and ST, are left vacant, the same shall have to be filled up irrespective of castes and on the basis of merit alone. When the scheme of the SC and ST Reservation Act is to fill up the vacant seats, on merit, in a case of present nature, there cannot be any policy decision of the State Government, in the form of the memoranda, which the respondents are relying upon, defeating the scheme of the sovereign legislation. If the provisions of the memoranda are given effect to, it would, undoubtedly, negate and defeat the scheme of the sovereign legislation (i.e., SC and ST Reservation Act), which is wholly impermissible in law. In a case of the present nature, the reference made by Mr. Deb, WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 25 learned counsel, to the case of Jagdish Singh v. Punjab Engineering College, reported in (2009) 7 SCC 300, is not wholly misplaced inasmuch as it has observed, in Jagdish Singh (supra), at paragraph 3, as under:
"3. We are told that in many of the Central educational institutions the seats, which are to be filled up by OBC candidates, are still remaining vacant. These institutions may endeavour to fill up these vacant seats by other eligible students at the earliest i.e. at least by the end of October, 2008, observing inter se merit of the candidates. All other rules and regulations regarding admissions shall be strictly followed. The application is disposed of accordingly."
37. It may also be pointed out that the decision, in Jagdish Singh (supra), has been followed, as rightly submitted by Mr. Deb, in P.V. Indiresan (2) v. Union of India and others, reported in (2011) 8 SCC
441.
38. There can be no doubt, as laid down by the Supreme Court, in Regional Director, ESI Corpn. V. Ramanuja Match Industries, reported in (1985) 1 SCC 218, that beneficial legislation should receive liberal construction with a view to ensuring effective implementation of legislative intent, but wherever such beneficial legislation has a scheme of its own, the Court cannot travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those, who are not covered by the scheme. What can be gathered from the decision, in Ramanuja Match Industries (supra), is that the scheme of beneficial legislation has to be respected and cannot be allowed to be overridden by anyone, far less the State, because the State is free to make amendment of the WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 26 scheme of the beneficial legislation so long as the amendments are in tune with the Constitutional scheme. A beneficial legislation must receive a liberal construction so as to promote its object.
39. In V. Markendeya v. State of A. P., reported in (1989) 3 SCC 191, the Court has clarified that the provisions, contained in the Chapter of Directive Principles of State Policy, cannot be enforced by Courts, although the principles, contained therein, are fundamental in nature for governance of our country and, while considering the question of enforcement of fundamental rights, it is open to the Court to be guided by the Directive Principles to ensure that, while doing justice, the principles, contained therein, are maintained.
40. The learned Advocate General is correct, when he places reliance on the case of V. Markendeya (supra), and submits that fundamental rights and the Directive Principles together constitute the conscience of the Constitution and that the Constitution aims at bringing about a synthesis between fundamental rights and Directive Principles of State Policy by giving to the former a place of pride and to the latter a place of permanence. Fundamental rights and the Directive Principles of State Policy not only form core of the Constitution, but also constitute its true conscience and without faithfully implementing the Directive Principles, it is not possible to achieve the welfare State contemplated by the Constitution.
41. Coupled with the above, Section 16, which gives to the scheme of the SC and ST Reservation Act overriding power, reads as under:
"16. Act to override other laws. Save as expressly provided in this Act, the provisions of this Act and the rules made there-under shall have effect notwithstanding anything WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 27 inconsistent therewith contained in any other law, rules, regulations or orders for the time being in force or any decree or order of any Court or other authority."
42. From a bare reading of the provisions embodied in Section 16, what becomes transparent is that the provisions of the SC and ST Reservation Act and the Rules made thereunder shall override any other law, rules, regulations and order made or passed by any other authority. When the memoranda, relied upon by the respondents, seek to override the scheme of the SC and ST Reservation Act by providing exchange method, the same must be taken to have been overridden by Section 16 and the memoranda aforementioned and cannot, therefore, be allowed to prevail upon the scheme of the SC and ST Reservation Act.
43. In the backdrop of the respective cases, set out by the parties concerned, and the submissions, made on their behalf, let me point out, as has been rightly done by the learned Advocate General, that Section 2(d) defines Educational institutions to mean, inter alia, any school, and this shows that, as far as the schools, in question, are concerned, these schools fall within the ambit of the SC and ST Reservation Act. The fact that the schools fall within the ambit of the SC and ST Reservation Act is, in fact, not in dispute.
44. In the face of the above scheme of the SC and ST Reservation Act, when one refers to the decisions, in Ramanuja Match Industries (supra), Bombay Anand Bhavan Restaurant (supra), Edukanti Kistamma (supra), Revanasiddappa (supra) and Nidip Textile Processors (supra), which the learned Advocate General has relied upon, it becomes abundantly clear that though the SC and ST Reservation Act is a beneficial legislation, it has its own scheme of WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 28 reservation and the Court cannot travel beyond the scheme of the SC and ST Reservation Act and thereby extend the scope of the statute. It is necessary, therefore, that when the SC and ST Reservation Act does not allow filling up of unfilled seats of one reserved category by another reserved category, the Court does not allow deviation from the scheme of the SC and ST Reservation Act by such exchange method, as is sought to be resorted to by the State respondents, in the present case.
45. As regards the learned Advocate General's contention, that the benefit of the SC and ST Reservation Act cannot be extended to the candidates of the general category, such as, the present petitioners' children, suffice it to point out that reservation is an exception to the fundamental right of non-discrimination. Article 14 and 15 of the Constitution, when combined together, guarantee equality of treatment to everyone irrespective of their caste in the matter of admission in educational institutions. However, Article 15(4), read with Article 15(5), empower the State to make special provisions for Scheduled Castes and Scheduled Tribes for their advancement and it is by taking recourse to the Constitutional provisions, enshrined in Article 15(5), that reservations, in favour of Scheduled Castes and the Scheduled Tribes, have been made, in the present case, in the form of SC and ST Reservation Act. Consequently, it is for the State to show that the 'law', which it has made, permits exchange method; or else, the children of the petitioners are, as of right, entitled to claim admission in the schools, in question.
46. As the respondents failed, and failed miserably, to show that it is permissible, under the scheme of the sovereign legislation, i.e., SC and ST Reservation Act, to resort to exchange method and thereby allow WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 29 admission of the candidates of Scheduled Castes in the seats, which have been left vacant, from the reserved quota of the Scheduled Tribe candidates, there can be no escape from the conclusion, and this Court unhesitatingly holds, that the children of the writ petitioners are, under the law, entitled to be admitted into the schools, in question, in terms of the prayers made in this regard.
47. Because of what have been discussed and pointed out above, all the three writ petitions are hereby allowed. The impugned Notifications, dated 19.03.2011, and 25.04.2011, are hereby set aside and the respondents are hereby directed to admit the children of the petitioners into the classes, wherein they would have been entitled to be admitted but for the impugned decisions, taken by the respondent Nos. 3 and 4, with regard to allowing the candidates belonging to Scheduled Castes to be admitted in the vacant seats, which were left out of the quota of reservations meant for the candidates of Scheduled Tribes.
48. With the above observations and directions, these three writ petitions stand disposed of.
49. No order as to cost.
JUDGE Paul/rk WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011 Page No. 30 WP(C) Nos. 144 of 2011, 195/11 & 205 of 2011