Punjab-Haryana High Court
Raj Sandeep Singh S/O Sh. Paramjit Singh ... vs State Of Punjab Through Its Secretary on 18 May, 2012
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.5132 of 2012 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.5132 of 2012
Date of Decision. 18.05.2012
Raj Sandeep Singh s/o Sh. Paramjit Singh r/o House No.333, Sector 22-A,
Chandigarh
.......Petitioner
Versus
State of Punjab through its Secretary, Department of Medical Education
and Research, Civil Secretariat, Punjab, Chandigarh and others
.....Respondents
Present: Mr. Animesh Sharma, Advocate for the petitioner.
Mr. Ajaib Singh, Addl. Advocate General Punjab for respondent No.1.
Ms. Neha Jain, Advocate for Mr. K.S. Dadwal, Advocate for respondent No.2.
Mr. Anupam Gupta, Senior Advocate with Ms. Shruti Gupta, Advocate and Mr. Gaurav Goyal, Advocate for respondent No.3.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.
I. The subject of challenge
1. The issue involved in this case relates to a challenge to an advertisement notification issued by the Baba Farid University of Health Sciences, the 2nd respondent herein, providing for institutional preference of 50% seats in the general category candidates for admission to MDS and MD/MS/PG Diploma Courses for students, who have passed the qualifying examination from Baba Farid University of Health C.W.P. No.5132 of 2012 -2- Sciences, Faridkot, Guru Nanak Dev University, Amritsar and Punjabi University, Patiala except the Christian Medical/Dental Colleges, Ludhiana. The petitioner's grievance is that he is a student of the Panjab University, Chandigarh and the institutional preference that has been provided to exclude a student from Panjab University, Chandigarh is unconstitutional and violative of Articles 14 and 15. The counsel for the petitioner has another contention, seemingly inconsistent, to project, as if in alternation, that if the institutional preference could be extended by Baba Farid University of Health Sciences, Faridkot beyond the said University to two other Universities, it ought to be extended to students of Panjab University, Chandigarh, since Chandigarh is the capital of Punjab and there are decisions that hold that there is no difference between the University of Panjab and other universities established in the State of Punjab.
II. Basis of contention by petitioner
2. The petitioner has obtained a degree in BDS and is an aspirant to admission to the Post Graduate course. The grievance of the petitioner as regards the advertisement notification is on the ground that even the institutional preference to the extent to which it has been found admissible by decision of the Supreme Court should be strictly construed, especially for admission to Post Graduate Courses and such institutional preference must, therefore, be understood as only making possible for institutional continuity in pursuit to higher courses in the same institution or University which in this case must be confined only to Baba Farid University and cannot be extended to students of Punjabi University, Patiala and Guru Nanak Dev University at Amritsar. C.W.P. No.5132 of 2012 -3-
III. Basis of contention by the respondents
3. The contention in defence by the University is that the institutional preference, which is really a permissible exception to right against discrimination on the basis of residence, shall be so construed as that will promote State interest. If there are intelligible differentia that are carved out for identifying certain classes of persons as belonging to certain categories and if that differentia should bear a nexus to what the notification seeks to achieve, which in this case is advancement of a State interest, it must be taken as standing the test of Article 14. The State interest is the benefit which it will obtain by securing to the students who are identified for grant of benefit and indeed a quid pro quo to render services to the people. The State has a right to expect such a service when it provides the finances for establishing the Universities and also extends facilities such as stipend to students undergoing Post Graduate courses. The defence by the respondents is, therefore, that the institutional preference as confined to a University must be understood as even Universities within the same State and Court's intervention will be only to see whether the policy, which has been framed by the State is reasonable and fair and if it stands the test of such reasonableness, the challenge to the same ought to fail. This is particularly in the context of how the University established within the Union Territory of Chandigarh cannot be treated in the same way as any other university in the State of Punjab and the advertisement notification issued by the University that conforms to the notification of the Government of Punjab cannot, therefore, be assailed. IV. Institutional preference: exception to rule against discrimination, as a tool of permissible reservation C.W.P. No.5132 of 2012 -4-
4. The respective contentions of the parties are all fully governed by the decisions of the Supreme Court and therefore, the enquiry that is proposed to be undertaken in this judgment is only to see the contours of institutional preference that had been etched out through the pronouncements. There is no need for elaborate setting out of details of facts in the petition, for the singular consideration shall be whether a student of Panjab University, Chandigarh could question an institutional preference to admission in a Post Graduate Course from the University established in Punjab, which is confined not merely to that particular University but also includes two other Universities established within the same State.
(a) Rationale for institutional preference
5. In D.N. Chanchala etc. Vs. the State of Mysore and others AIR 1971SC 1762, the Supreme Court was considering the validity of Mysore Medical College (Selection for Admission) Rules, 1970. The Rules provided for University-wise distribution of seats in the Government colleges. The principal challenge came through a petitioner, who had passed pre-University course examination held by the Bangalore University. She had pursued further studies for B.Sc in Karnatak Sciences College affiliated to Karnatak University. Under an Ordinance 144 (c) of the Karnatak University, a student having passed B.Sc. Part-I was eligible for medical course provided he/she obtained certain minimum marks. The petitioner having obtained 1st class marks in B.Sc. Part I, therefore, claimed that she was eligible for admission to medical courses. The issue was considered in the context of the establishment of three Universities in the then Mysore State, namely Karnatak, Mysore and Bangalore Universities. All the Universities held pre-University Courses. Only the C.W.P. No.5132 of 2012 -5- Karnatak University required the B.Sc. Part-I examination leading to MBBS as the minimum qualification for being eligible for medical course, the other two Universities required the passing of what is called as the Pre-Professional examination, which was equivalent to B.Sc. Part I leading to MBBS degree of the Karnatak University. The State Government had framed the 1970 Rules, which through Rule 9 dealt with the distribution of seats amongst the several colleges. Clause (1) provided that seats in the general pool shall be distributed University- wise. It made possible in effect that if a student has passed the P.U.C. Examination held by a particular university, such a student was, by virtue of Rule 9(1), eligible for admission in the medical college or colleges affiliated to that university. The selection committee, however, had the discretion to allot seats, up to 20% of the seats in the colleges affiliated to a university, to students passing from colleges affiliated to any other university in the State or even elsewhere in India. Consequently, the petitioner having passed her P.U.C. examination from Bangalore University could apply for admission in a medical college affiliated to that university. If she were to apply for admission in a medical college affiliated to the Karnatak University she could only be selected to a seat from among seats up to the maximum of 20 per cent of seats left in the discretion of the Selection Committee as provided by Rule 9(1) Upholding the Rules, when a challenge to them had been made on the ground that they violated Article 15, the Supreme Court held "since the Government has set up these colleges and maintains them, it has prima facie the power to regulate admission in its own institutions (emphasis supplied)..... That being so, it cannot be said that the Government has no power to regulate admission in its own colleges or C.W.P. No.5132 of 2012 -6- that because a student is eligible for that because a student is eligible for admission under the University ordinances, he automatically gets a right to admission which he can enforce in a Court of law" (para 17).
(b) Intra-State preference is permissible; intra-district preference on the basis of residence is not permissible
6. The Supreme Court was making a distinction between district- wise distribution of seats, which had been found in (Rajendran's case AIR 1968 SC 1012 and Periakaruppan's case AIR 1971 NSC 171) to be invalid and preference given to students in the universities established in a State. The distinction was rested on object that it sought to achieve, namely that the selection would have to be made on the basis of either the place of birth or residence and the fact that the candidate was confined to medical college at or nearest to such a place. Such a basis of selection was held to have a reasonable nexus with the object of the Rules, namely, to select the most meritorious amongst the candidates to have the advantage of such education. In Periakaruppan's case there was a further infirmity, in that there were several objects for selection resulting in various standards, thus defeating the very object of screening the candidates to give chance to best of them. Detailing the reason as to how these two decisions were clearly distinguishable, the Supreme Court held in Chanchala (supra):-
"The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas. Obviously one university for the whole of the State could neither have been adequate nor feasible to satisfy those needs..... Since the universities are set up for satisfying-the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in C.W.P. No.5132 of 2012 -7- specialized subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of district-wise or unit-wise selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence......... Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged.... (para 22)
7. This decision brings out the fact that a Rule that allows for admission for a particular percentage for students that passed out from certain Universities established within the State was reasonable. Such preference ought not to be confused with a preference given to persons belonging to a person on the basis of his place of birth or permanent residence. It was for this reason that a reservation on the basis of residential status was found to be bad in Magan Mehrotra Vs. Union of India (2003) 1 SCC 186. In Magan Mehrotra, apart from institutional preference to a student of Delhi University by a certain percentage, additional reservation was available if a person was a resident of Delhi. The preference is to the location of the University in a State in which the candidate studied and not where he was a permanent resident or where he was born. The object sought to be achieved was that the Government which was providing the finances and the Universities, which are set up for satisfying the educational needs of different areas in that State could themselves be a justification for creating a specific reservation and classification criteria for students passing from such Universities.
C.W.P. No.5132 of 2012 -8-
(c) Reservation though required to be under check, institutional preference is unavoidable
8. In Jagdish Saran and others Vs. Union of India and others AIR 1980 SC 820, the Supreme Court was again considering the issue of a protective discrimination while providing for admission to educational institution and the quantum of reservation institution-wise that could be supported. In that case, the petitioner was a medical graduate from Madras University and his father had been a Central Government servant, who had been transferred to Delhi and he had applied for admission to the University of Delhi. The petitioner lost out to admission in view of the Rule reserving 70% of the seats at the post-graduate level to Delhi graduates i.e. persons who had passed out their MBBS degrees from the University of Delhi. Only remaining 30% was open to all including the graduates in Delhi. The issue was whether such an institutional preference to students of Delhi to the extent of 70% was justified or not. The Supreme Court was sensitive to the fact that reservation must be kept in check by the demands of competence. Even while upholding philosophy and pragmatism of universal excellence through universal equal opportunity as part of educational and cultural creed, the Supreme Court carved out an exception on grounds of pragmatism when it said "reservation must be kept in check by demands of competence. 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 scale of speciality where the best skill or talent, must be handpicked by selecting according to capability (para 22-24)". One would expect that the Supreme Court was literally trying to see that in the higher classes of learning competence alone must be the watch C.W.P. No.5132 of 2012 -9- word and it would admit of no discrimination in any form. This was how the learned counsel appearing for the petitioner would qualify even the decision in Chanchla's case by stating that even the institutional preference that allowed for special privileges to admission for a particular percentage in three universities established within the State must be confined only to MBBS degrees and cannot be extended to Post graduate courses. This argument takes a beating, if we consider that the Supreme Court in Jagdish Saran was considering the case of admission to post-graduate course and it spelt out that for post-graduate courses, any form of reservation must be viewed as going against the constitutional creed. If it was making an exception it made an exception as follows:-
"University-wise preferential treatment may still be consistent with the rule of equality of opportunity where it is calculated to correct an imbalance or handicap and permit equality in the larger sense. Since even apart from the Article 15(3) and (4), equality is not negated or included where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit (para 27,29).
9. While upholding the claim of preference to graduates from Delhi University the Supreme Court held that "neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. But there is one weighty circumstance which must be in our reckoning. Reservation for Delhi graduates is not that invidious because, as stated in the beginning, the students are from families drawn from all over India. Not `sons of the soil' but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control. This reservation is, therefore, qualitatively different."
10. We can notice here that the Supreme Court was grappling with C.W.P. No.5132 of 2012 -10- a settled distinction of when the place of residence of the student itself could not have been a ground for preferring a person that would have offended the rule in Rajendran and Periakaruppan (supra). It was making out a specific distinction to families who moved to certain place and the students studying in that University in that place getting the preference. It is the location of the University that made a difference and not the place where the student was actually residing. It is in this context that the Supreme Court went on to say, "......the country round every university bangs, bars and bolts the doors of medical admission to outsiders and if Delhi alone were to keep its doors hospitably ajar, where are the Delhi graduates to go for higher studies if squeezed out by All-India competition ? If reservation is evil, the embargo everywhere must be lifted, lest evil should beget evil. So long as other universities are out of bounds for Delhi graduates, exposure to all-India competition becomes intense and prejudices their chances. This indirect, real yet heavy handicap creates an under- current of discrimination and cannot be wished away and needs to be antidoted by some percentage of reservation or other legitimate device. (para 47)." This again must be understood from how the Panjab University, Chandigarh itself has issued the admission notifications. In the prospectus, for an application form issued by the Punjab University, it is not as if the University does not make a preference for students of Panjab University. It actually excludes from such preferential treatment to persons of other Universities in the State of Punjab like Punjabi University, Guru Nank Dev University, Amritsar or Baba Farid University. Para 2 of the prospectus of Panjab University, Chandigarh provides for 50% of the total number of seats to be reserved for students who have passed their C.W.P. No.5132 of 2012 -11- MBBS examination from medical institution of Union Territory, Chandigarh only. The Panjab University makes a preference to the medical institutions of Union Territory. It provides through an All India Pool 18 seats and under the UT Pool 19 seats, to students of Panjab University only.
V. Law consolidated through pronouncements of Constitutional Benches:
(a) State interest to the fore
11. What constitutes institutional preference obtained a focus in a five Member Bench of the Supreme Court in Dr. Pradeep Jain and others Vs. Union of India and others (1984) 3 SCC 654, the Constitutional Bench was examining the issue, as a subject of national importance of what was becoming a recurring theme. It dealt with the issue of admission not merely to graduate courses but also to post graduate courses. The Court had ordered notice to all States, which provided for preference in the respective States for students' domicile in the respective States and who studied in the respective colleges established within the State. The Court was holding that in determining merit for selection of candidates for admission in medical colleges, the Court has to examine also the circumstances in which the departure has to be made from the principle of selection based on merit. Erred equality, insensitive to social economic disability and inequality could spell disaster to the people and could turn out to be ultimately anti- thetical to the concept of equality itself. The scheme of admission to medical colleges may depart from the principle of selection based on merit where it is necessary to do so in bringing about real equality of opportunity between those who are unequal. It was in this context the C.W.P. No.5132 of 2012 -12- Supreme Court came upon a painful reality that a strong unified India could come through framing strong State interest. Growing, not one against the another but growing in stature in all its diversity towards a common goal, the Supreme Court said:
"There are, in the application of this principle, two considerations which appear to have weighed with the Courts in justifying departure from the principle of selection based on merit. One is what may be called State has by and large been frowned upon by the court and struck down as invalid interest and the other is what may be described as a region's claim of backwardness."
The legitimacy of claim of State interest was recognized explicitly in one of the early decisions of the Supreme Court in (D.P. Joshi Vs. State of Madhya Bharat AIR 1955 SC 334). The Rule impugned in that case was a Rule made by the State of Madhya Bharat for admission to MBBS Course providing that no capitation fee would be charged from the persons who are bona fide residents of Madhya Bharat but for residents of non-Madhya Bharat there shall be a capitation fee of Rs.1300/- for nominees and Rs.1500/- for others. The expression bona fide resident was defined to mean, inter alia, a citizen whose original domicile was in Madhya Bharat provided he had acquired a domicile any time or a citizen whose original domicile was not in Madhya Bharat but had acquired a domicile in Madhya Bharat and resided there for not less than 5 years at the time of application of admission..... To reproduce what was stated in Joshi's case, as quoted in Pradeep Jain's case:-
"A concession given to the residents of the State in the matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the society. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in The State of Punjab v. Ajab Singh and Anr. AIR 1953 SC 10 that a classification might validly be made on a geographical C.W.P. No.5132 of 2012 -13- basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern, primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Article 14 must be rejected." (emphasis supplied)."
12. In Pradeep jain's case, therefore, while it was trying to uphold an institutional preference, it was not merely discussing an issue of preference only to a particular University. In the given case which was relied upon, the fact that it was one University was purely incidental, which was justifying it only on the ground that the University had been established within the particular State to promote the State's interest. In drawing this proposition the Supreme Court was quoting Joshi (supra) which allowed for a preference to students in the particular State as a whole and was quoting the observation that a concession in the matter of fee to persons domiciled within the State was also justified because the persons within the State formed distinct class and a concession given to them must be taken for satisfying the objective namely the promotion of State interest. Even while approving of a State interest, the Supreme Court was staving clear of the district- wise distribution of seats for that would have surely meant the vivisection of the solidity and integrity of the State itself. The extent of discrimination that the Supreme Court was prepared to allow for as an exception was to be confined within the State for the students domiciled in the State as advancing the benefit of the State. The justification for upholding such a differential treatment was significant in so far as it meant that after passing out of the college, the students could settle down as Doctors and serve the needs of that State. The emphasis was on what the student could do to the locality and not to the University. After all, the University could be properly said to exist not in the actual C.W.P. No.5132 of 2012 -14- perimeter of its physical location but within the State where it is located.
(b) Dynamics of institutional preference ought to exclude staid/literal meaning
13. The curtains down would, therefore, be to examine how the law grew to be summarized and distilled through a still later Five Member Bench in Saurabh Chaudri and others Vs. Union of India and others (2003) 11 SCC146. Between 1984 to 2004 were still two decades gone by and there arrived a time for reappraisal and therefore, the Constitutional Bench was again constituted to see to what extent the discrimination could permeate within the boundaries of equality. While the petitioner would contend that the institutional preference which the Supreme Court was making in Saurabh Chaudri was a preference to students of the particular university, the Senior Counsel appearing for the State and respondent would contend that the institutional preference which the Supreme Court was upholding in Saurabh Chaudri was in the context of how Pradeep Jain examined the preference as going to students within the State for the cause of promotion of the State interest. The basis for approving the institutional preference, according to the Senior Counsel appearing on behalf of the University would show that it was not merely restricting the institutional preference as appurtenant to the particular University. At para 64, the Supreme Court had summarized what the concept meant:-
"64. This Court may therefore notice the following:
i) The State runs the Universities.
ii) It has to spend a lot of money in imparting medical education to the students of the State.
iii) Those who get admission in Post Graduate Courses are also C.W.P. No.5132 of 2012 -15- required to be paid stipends. Reservation of some seats to a reasonable extent, thus, would not violate the equality clause.
(iv) The criteria for institutional preference has now come to stay. It has worked out satisfactorily in most of the States for last about two decades.
v) Even those States which defied the decision of this Court in Dr. Pradeep Jain's case (supra) had realized the need for institutional preference.
vi) No sufficient material has been brought on record for departing from this well-established admission criteria.
vii) It goes beyond any cavil of doubt that institutional preference is based on a reasonable and identifiable classification. It may be that while working out the percentage of reservation invariably some local students will have preference having regard to the fact that domicile/residence was one of the criteria for admission in MBBS Course. But together with the local students 15% students who had competed in all India Entrance Examination would also be getting the same benefit. The percentage of students who were to get the benefit of reservation by way of institutional preference would further go down if the decision of this Court in Dr. Pradeep Jain's case (supra) is scrupulously followed.
(viii) Giving of such a preference is a matter of State policy which can be invalidated only in the event of being violative of Article 14 of the Constitution of India.
ix) The students who would get the benefit of institutional preference being on identifiable ground, there is hardly any scope for manipulation."
In that context the Supreme Court concluded at paragraph 67:
"67. We, therefore, do not find any reason to depart from the ratio laid down by this Court in Dr. Pradeep Jain (supra). The logical corollary of our finding is that reservation by way of institutional preference must be held to be not offending Article 14 of the Constitution of India."
14. I would agree with the counsel appearing for the petitioner that the Supreme Court was concerned that the issue of any reservation discrimination would fall foul of equality, which must be quelled for post-graduate courses. But the reference to institutional preference cannot still be given a staid and a literal meaning as though it could be C.W.P. No.5132 of 2012 -16- appurtenant only to a particular University. On the other hand, if we look for the raison d'être as to why the institutional preference was itself upheld as a concept, we cannot miss the undercurrent that it was only in the context of the State interest that a minor dent into equality was allowed to be perpetrated.
VI. The historical underpinnings for Universities established in Punjab State as relevant for distinct treatment
15. The subject would be complete if we also examine why the Baba Farid University was allowing for a preference not merely to the students of its own college but also to the students of two other Universities namely the Punjabi University and Guru Nanak Dev University. The historical background is that before partition there existed one Punjab University for the unified State of Punjab and located at Lahore. It could not any longer function outside the country and therefore, necessarily a fresh University was notified after the partition called as the Panjab University. The decision of the Full Bench in Dayanand Ango-Vedic College Managing Committee, New Delhi and others Vs. The State of Punjab and others AIR 1972 P&H 170 traced the history of the Punjab University and the subsequent Universities. The Punjab University which was incorporated under the East Punjab University Act, 7 of 1947 was originally located at Shimla and worked from Solan. With the formation of the city of Chandigarh, its headquarters were shifted to Chandigarh and Section 3(b) was amended to provide that the seat of the University shall be at Chandigarh. The East Punjab University provided a list of colleges which were previously affiliated to the University to the Punjab University at Lahore. Under the Punjab Reorganization Act, 1966, which was a central enactment, C.W.P. No.5132 of 2012 -17- the unified Punjab (East Punjab) after partition became three States Punjab, Haryana and Himachal Pradesh and a Union territory of Chandigarh. The State of Punjab did not include Chandigarh. Schedules 1 and 4 to the Constitution was amended through sections 7 and 9 of the Act respectively. They had bearing to the establishment of the States as comprised within territory of India and the respective legislative powers. The territories of Punjab were set out in section 6 and Chandigarh, which was the capital of Punjab was still not in Punjab. Chandigarh was constituted as union territory and specifically stated to be not in Punjab:
"4. Formation of Union Territory of Chandigarh.--On and from the appointed day, there hall be formed a new Union Territory to be known as the Union Territory of Chandigarh comprising such of the territories of Manimajra and Manauli kanungo circles of Kharar tahsil of Ambala district in the existing State of Punjab as are specified in the Second Schedule and thereupon the territories so specified shall cease to form part of the existing State of Punjab.(emphasis supplied) The Act of 1966 specifically provided under section 72 that the Act would apply also to the Punjab University constituted under the Punjab University Act of 1947. The latter Act disaffiliated the colleges at Gurdaspur, Mysore, Jalandhar and Kapurthala from the Punjab University and placed them under the new University established as Guru Nanak Dev University. Section 72 altered the structure of the Punjab University as an inter-corporate University by a notification dated 12.09.1969. The Section reads thus:
72. General provisions as to statutory corporations.--(1) Save as otherwise expressly provided by the foregoing provisions of this Part, where any body corporate constituted under a Central Act, State Act or Provincial Act for the existing State of Punjab or any part thereof serves the needs of the successor States or has, by virtue of the provisions of Part II, become an inter-State body corporate, then, the body corporate shall, on and from the appointed day, continue to C.W.P. No.5132 of 2012 -18- function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, until other provision is made by law in respect of the said body corporate.
(2) Any direction issued by the Central Government under sub- section (1) in respect of any such body corporate may include a direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect, subject to such exceptions and modifications as may be specified in the direction.
(3) For the removal of doubt it is hereby declared that the provisions of this section shall apply also to the Punjab University constituted under the Punjab University Act, 1947 (East Punjab Act 7 of 1947), the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961 (Punjab Act 32 of 1961), and the Board constituted under the provisions of Part III of the Sikh Gurudwaras Act, 1925 (Punjab Act 8 of 1925).
(4) For the purpose of giving effect to the provisions of this section in so far as it relates to the Punjab University and the Punjab Agricultural University referred to in sub-section (3) the successor States shall make such grants as the Central Government may, from time to time, by order, determine.
16. The Central Government took away the districts Patiala, Sangrur, Bathinda and Ropar in the State of Punjab from the Punjab University and the whole of territory of Himachal Pradesh subsequently. As a result the Punjab University had ceased to operate and function in those core districts of the State of Punjab and entire State of Himachal Pradesh. The Punjabi University which was established later by law was in relation to the colleges, which had been disaffiliated from the Punjab University and established at Patiala. It could be meaningless to provide in such a situation that a relatively small University catering to a very small place to be given an institutional preference. The support to the idea of institutional preference itself will be defeated if such institutional preference were to be given only to such a localized University that caters to a very small segment of the State. The C.W.P. No.5132 of 2012 -19- Government of Punjab in providing through its notification a preference to students of the three Universities were literally providing for promotion of a State interest and it is only by inclusion of all the three Universities that the test of institutional preference itself would survive in this case. I will, therefore, discard the argument that the institutional preference must be confined only to Baba Farid University. Such an argument disengages from discourse the constitutional history of the State of Punjab.
VIII. Alternate argument of petitioner for inclusion of student from Panjab University, Chandigarh discarded
17. Learned counsel for the petitioner would contend as an alternative plea that if the institutional preference could admit of an interpretation that can make possible students of other two Universities namely Punjabi University and Guru Nanak Dev University also to be considered, for the same reason the petitioner's prayer for consideration as a student of the Panjab University, Chandigarh should also be considered. The counsel for the petitioner would rely upon the decision in S.S. Bindra Vs. State of Punjab in C.W.P. No.9665 of 2010 to support his argument. The said decision was in the context of applying the Central Government's recommendations for increase in age of Teachers as provided to centrally funded institutions. The case has no bearing to the issue of consideration of reservation and the extent to which a discrimination based on differential criteria was possible. If I have held by reference to the history of the establishment of three Universities in the State of Punjab and the University established at Chandigarh are two different classes, then the question of allowing for extension of the institutional preference to Universities outside the C.W.P. No.5132 of 2012 -20- State of Punjab to include the Panjab University of Chandigarh does not arise at all.
18. In any view of the matter the petitioner's challenge cannot survive. I will hold that the institutional preference is constitutionally permissible by laying down the intelligible differentia of identifying the students of colleges and Universities which would constitute a separate class. Such distinctions as identified through the Universities established within the State of Punjab has an object to fulfill, namely, giving a preferential edge to students within the State of Punjab to secure admission into the University for serving its State. A student of Panjab University, Chandigarh forms a distinct class and he cannot vie for an equal treatment as a student from the other Universities established in Punjab for whom the preference is given through the notifications, which fall within constitutional boundaries.
19. The writ petition is, therefore, dismissed.
(K. KANNAN) JUDGE May 18,2012 Pankaj*