Rajasthan High Court - Jaipur
Nemi Chand Sharma And Etc. Etc. vs Mehrishi Dayanand Saraswati ... on 24 October, 1997
Equivalent citations: AIR1998RAJ256, 1998(3)WLC67
JUDGMENT
Verma, J
1. The above said D. B. Special Appeal No. 765/94. has been directed against the order dated 24th of August, 1994, passed by Hon. Mr. Justice, V. K. Sinehal, in C. W. No. 5473/ 1994.
2. The facts and grounds of challenge in the appeal and connected writ petitions are common and, therefore, they are being decided by common judgment.
3. The facts are being taken from D. B. Civil Special Appeal No. 765/1994, arising out of Civil Writ Petition No. 4573/l994 (Nemi Chand Sharma v. M.D.S. University). The learned single Judge had dismissed the writ petition vide order dated 24th August. 1994. holding that Rule 5 of the Pre Teacher Education Test (hereinafter called as the 'PTET'), contained in the guidelines issued by the Mehrishi Dayanand Saraswati University. Ajmer (for short the 'University'), was not ultra vires as per judgment of a Division Bench of this Court in Mahavir Prasad Jangid v. State of Rajasthan and another in D. B. Civil Writ Petition No. 2345/1987. and as many as 214 other writ petitions, decided in the same judgment by Hon'ble Mr. Justice N. K. Kasliwal and Hon'ble Mr. Justice Farooq Masan. : 4. The appellant was aggrieved on account of not giving him admission in B.Ed. Course on the ground that he had passed the Secondary School Examination from the West Bengal Board of Secondary Education.
5. In Rule 5 of the P.T.E.T. Guidelines, it is provided that for deciding the candidature of a person from a district of Rajasthan, the only consideration will be the district from where the candidate has passed Secondary School Examination. Because of the reason that the rule had already been held to be valid by a Division Bench, the learned single Judge did not feel it necessary to refer the matter to a larger Bench or to show any dissent from the Division Bench Judgment. Hence the present appeals.
6. Similar is the situation in regard to other appellants, whose writ petitions have been dismissed and above Special Appeals (Writs) have been filed.
7. The facts stated in Nemi Chand's case are that the petitioner, even though, is a permanent resident of village Kanchanpur, as per the certificate issued by the S.D.M. in August, 1987, and his name also appears in the voters' list of " Srimadhopur Constituency for the year 1988, but because of the reason that his brothers were working in the State of West Bengal, the petitioner was because of the circumstances forced to get admission in Xth Class in West Bengal Board of Secy. Education where he passed his Xth Class Examination in the year 1985. However, he had shifted to Rajasthan in the year 1987, and passed the Xlth Class Examination from the Board of Secondary Education Ajmer, Vide Annexure-4. He passed the Graduation in the year 1991, from the University of Rajasthan, vide Annexure-5.
8. It is stated that the State Government had invited applications from eligible candidates for the Examination of PTET in the year 1994. The petitioner had also applied and he was allotted Roll-Number as well. The Examination was held on 19th of June, 1994, at Sikar. Result was declared and the petitioner had obtained 446 marks out of 600. It is stated that the respondents had refused to grant admission to the petitioner in B.Ed. Examination because of the reason that the petitioner had not passed the Xth Class from any of the districts of Rajasthan and he was deprived of such admission for the reason that he was a student in the West Bengal in the Xth Class. It is stated that the petitioner is not being treated as the resident of Sikar District because of the provi sions of Rule 5 of the PTET-Guidelines ami therefore, a direction was sought to consider the case of the writ petitioner for admission in B.Etl Course. Vires of the Rules were not challenged
9. The University had issued certain guidelines for admission to B.Ed./Shiksha Shastr Courses Session 1994-95. known as PTET Course 1994. It is stated in the said guidelines that to qualify the PTET, the candidate shall be required to secure at least 40% marks in the test and on the basis of the performance in the PTET Course.; list of successful candidates will be drawn in order of merit.
10. Rule 4 prescribes that out of the total number of seats faculty-wise, 20% seats will be filled in on the basis of overall merit irrespective of the district or State to which the candidate belongs.
11. Clause (b) of Rule 4 of the guidelines prescribes that for the remaining 80% seats, fac uity-wise, the Govt. of Rajasthan has reserved ; fixed number of seats for each district in proportion to the population of the districts.
12. Rule 5 prescribes the percentage of seats reserved in regard to the Reserved Classes. Note-of Rules 4 and 5 prescribe that for deciding the candidature of a person fromadistrict of Rajasthan the only consideration win" be the district from where the candidate has passed Secondary School Examination. A special provision has been made in regard to certain candidates i.e. married woman. if she is married to bona fide residence of has band'splace, defence personnel. Central Govern ment Employees etc. etc. The relevant guideline-are reproduced as under :-
"4(a) Out of the total number of seats faculty wise, 20% seats will be filled in on the basis of overall merit irrespective of the district or Stale to which the candidate belongs.
(b) For the remaining 80% seats, faculty-wise the Govt. of Rajasthan has reserved a fixed number of seats for each district in proportion to the population of the districts. However, in the event of non-availability of such candidates, these seat will be filled in from the overall general merit list of candidates.
5. For deciding the candidature of a person from a district of Rajasthan, the only consider; lion will be the district from where the candidate has passed Secondary School Examination.
The candidates of Dausa, Baran and Rajsamand Districts have to enclose a photocopy of the certificate of Secondary School Examination as well as a certificate of the Magistrate that the place where from Secondary Examination has been passed lies in the particular district. Similarly, candidates who have passed Secondary (Examination) from Central Board will also have to enclose a copy of Secondary School Certificate showing the name of School with place and district.
Further provided that;
(a) In case of a married woman, the place of bona Tide residence of husband may be the District, provided a bona fide residence certificate of husband's place and marriage certificate obtained from District Magistrate are produced along with examination application form for appearing in the test. The option of district so given will not, in any case be changed after submitting the examination application form.
(b) Such wards of defence personnel and Central Govt. Employees, who have passed their Secondary Exam, from outside Rajasthan other than the District to which such defence personnel/ Central Government employee originally belong within a District of Rajasthan. may be considered from the District to which they originally belong, provided bona fide residence certificate from a District Magistrate and a certificate from the employer are submitted along with application form for appearing in PTET. The District so chosen once will not be changed under any circumstance."
13. The Division Bench of this Court in Mahavir Prasad Jangtd v. State of Rajasthan and another(D.B. Civil Writ Petition No. 2345/1987), and other connected 214 writ petitions, decided on November 23, 1987, held that a similar clause which provided reservation of seats for each district and also provided that for deciding the candidature of a person from a district of Rajasthan the only consideration was to be considered, the district from where the candidate had passed the Secondary School Examination. The petitioners in those writ petitions had not passed the Secondary School Examination from Rajasthan. It was further stated in the facts of that writ petition that in the district Alwar, the minimum admission marks were 350, at Banswara 316, at Bhilwani 332, at Bundi 358. It is stated that the minimum marks provided in each district for admission were different. The grievance of the petitioner in that writ petition was that even though the petitioner had secured 356 marks, he was not given admission in the B.Ed. Course, while the candi dates who had secured lessor marks in Jalore District, had been admitted in B.Ed. Course. It was stated that such type of allegation was arbi trary, illegal and discriminatory and deserves-to be quashed. It was also alleged that the Ordinance of the University which prescribes a fixed percentage of seats for each district is also arbitrary and discriminatory. The sole object of holding a competitive examination of PTET for admission to all B.Ettv Colleges of Rajasthan was to select best meritorious candidates, but by making such classification on the basis of district-wise reset vation, the very object of merit was defeated After going through the respective submissions of the parties and after noticing the various pronouncement of the Apex Court and High Courts. the contention of the petitioners in those writ petitions were not accepted. The Division Bench had observed that the main thrust of the argument of the learned counsel for the petitioners was that such district-wise reservation was violativc of Articles 14 and 16 of the Constitution of India, after noticing the Apex Court judgments in 'P. Rajendran v. State of Madras,AlR 1968 SC 1012. Kumari Chitra Ghosh v. Union of India. AIR 1970 SC 35, Ram Krishna Dalmia v. S. R Tendolkar, AIR 1958 SC 538, Kumari N Vasundara v. State of Mysore. AIR 1971 SC 1439, A. Periakaruppan v. State of Tamil Nadu. AIR 1971 SC 2303, Dr. Jagdish Saran v. Union ol India, AIR 1980 SC 820, Nidamarti Mahesh Kumar v. State of Muharashtra. AIR 1986 SC 1362, and Dr. Dinesh Kumar v. Motital Nehru Medical College, Allahabad. AIR I986SC 1877. the Division Bench had observed that the following principles can be deduced from a perusal ol the various judgments of the Apex Court.
"(1) The object of any valid scheme of admissions must be to select the best and most meritorious students, if any departure is to be made, must be justified on the touchstone of Article 1 of the Constitution.
(2) There are two considerations which may legitimately weigh with the Court in justifying departure from the principle of selection based on merit. One is what may be called State interest and the other is what may be described as a region claim of backwardness.
(3) The Government has power to decide from what source the admission will be made. The classification of the source must be on a reasonable basis and Inteligible differentia.
(4) Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality.
(5) Reservation or preference in respect of a certain percentage of seats may legitimately be made in order to equalise opportunities for admission on a broader basis and to bring real and not formal, actual and not mere legal equality.
(6) The wholesaleor 100% reservation cannot be justified and is always bad in law. As regards the extent of such reservation it was held in Nidamarti' s case, AIR 1986 SC 1362, that reservation or preference should not be more than 70% and 30% seats should be made available as open seats on All India Basis. This ratio was further determined to the extent of 85% by way of reservation or preference and 15% in the first case of Dr. Dinesh Kumar, reported in AIR 1986 SC 1877. In case of MBBS and BDS Courses 75% and 25% for Post-Graduate Courses as laid down in the case of Dr. Dinesh Kumar."
14. The Division Bench in Mahavir Prasad Jangid's case (supra) had held that there was nothing unconstitutional in determining the sources for admission to the colleges by the State. The Rule, allotting district to a particular candidate was held to be not strictly based on his place of birth but on the basis of his passing the Secondary School Examination. It was further observed that there was a fundamental difference in the scheme ol admission to medical colleges, other higher technical engineering and science courses than the case of B.Ed. Courses and the appointment of Teachers Gr. Ill and II. It was further observed by the Division Bench that the Govt. had found that there were certain districts in Rajasthan which have no B. Ed. Colleges while some districts had more than one B.Ed. College. Because of the serious problem used to crop up every year it was found that on account of certain candidates selected for certain districts of Rajasthan either did not join or sought transfer soon after joining because of the reason that place of their appointment fell in those areas which were socially and educationally backward. It was further felt that candidates belonging to those particular districts could not get opportunity of being employed as teachers and when candidates belonging to other districts were selected, those candidates had shown disinclination to serve in those areas and wanted to come back near to their places. This had led to large number of seats of teachers remaining vacant for considerable long periods effecting the education of children. The Government had taken an exercise to re-consider the entire situation and the system for admission to B.Ed. Course. This exercise started in the year 1985 and continued till the middle of 1986. By that time, the new National Policy of Education was also formulated by the Government of India and was accepted by the Two Houses of Parliament. This new Education Policy provided that the rural areas with poor infrastructures and social services will not get the share of trained and educated youth, unless rural-urban disparities are reduced and determined measures are taken to promote diversification and dispersal of employment opportunities. On the basis of such comprehensive policy, the Education Department had accepted the recommendations of the said Committee and thereafter, the University after having considered the matter in the faculty of Education framed the Ordinance 91 -A, as it stood and reproduced in the judgment which became the subject matter of the writ petition in Mahavir Prasaii Jangid's case (supra). It was held that principle of merit has been applied in respect of each district after having allotted the seats to that particular district on the basis of population and literacy percentage and, therefore, it cannot be said that in those cases the principle of selection by merit has not been adhered to at all. The vires of therefore said rules which are identical in the present case were upheld.
15. The connected cases being decided by the Division Bench were based on the challenge that one meritorious candidate may not find a better college and a less meritorious person may find a better college in the district he belonged to This contention was not accepted by the Division Bench.
16. However, in another Writ Petition No. 2455/1987, in Ganpat's case which was also decided as a connected writ petition as one of the writ petition while deciding the Mahavir Prasad Jangid's case, it was observed by the Division Bench that the petitioner in that case was born in Pali District, but he had passed his High School Examination from Bhopal in M.P. Because of the reason that his brother-in-law were residing there, he was compelled by the circumstances to take examination from Bhopal. All subsequent examinations were passed by that petitioner from Rajasthan i.e. Pali. It was observed that the petitioner in Writ Petition No. 2455/1987, was born at Pali but for a short time, he received his entire education in Pali District. On the contention of the petitioner in that case that he belonged to district Pali, therefore, he should have been granted admission in district-wise reservation for Pali District. It was found as a matter of fact that the petitioner Ganpat Singh was bona fide resident of district Pali but had to go to M.P. for passing the Secondary Examination and later on he continued studies in Pali and under these circumstances the writ petition of Ganpat Singh was allowed and direction was given to admit the petitioner reserved for Pali District. The learned Division Bench observed as under ;-
"The facts alleged by the petitioner are not denied by the respondents and remained uncontroverted. From a perusal of the allegations made by the petitioner it is proved that he is a bona fide resident of Pali and had to go to Madhya Pradesh for passing Secondary-Examination on account of illness of his sister. The petitioner continued his studies at the college level in Pali and he was also born in village Basni in Pali District. In view of these circumstances we allow this writ petition on the above ground alone and direct the respondents to give admission to the petitioner in the reserved quota for Pali district."
17. Apart from the authorities already mentioned above and discussed and noticed by the Division Bench in Mahavir Prasad's case (supra), the learned counsel had challenged the provisions of ihe guidelines issued by the University as reproduced above by relying on Dr. Jagdish Sarm i v. U.O.I., (1980) 2 SCC 768 : AIR 1980 SC 820 State of Maharashtra v. Raj Kumar, AIR 1982 S 1301, Suneel Jatley v. State of Haryana, AIK 1984 SC 1534, Prakash Chandra Agarwal v. Slat, of Bihar, AIR 1985 SC 1709, Reserve Bank o' India v. C.N. Sahasranaman, AIR 1986 SC 1830 State of Rajasthan v. Dr. Ashok Kumar Gupta AIR 1989 SC 177, Secretary, R.P.S.C., Ajmer \ Om Dull Sharma, (1990) I Rajasthan LR 182. Shankarsan Das v. U.O.I., AIR 1991 SC 1612. Om Prakash Sharma v. State of Rajasthan, (1992 . 2 WLC 129 (Raj) and Ms. Swati Gupta v. State of U.P., (1995) 2 JT (SC) 438. Out of the aforesaid cases, the cases reported in Secretary, Rajasthan Public Service' Commission, Ajmer (supra) ami Om Prakash Sharma (supra) are not applicable to the facts of the present cases. Those cases related to the appointments to be made under the rules violating Articles 14 and 16 of the Constitution of India.
18. In Secretary, RPSC, 1990 (1) Raj LR 18: (supra), the matter related to the selection of les meritorious persons on merits.
19. In Om Prakash Sharma's case, 1992 (2 WLC 129 (supra), the preparation of the merit list district-wise was not held to be ultra vires. How ever, the cases related to the recruitment in sery ices under the rules and, therefore, have no bear ing to the facts of the present cases.
20. ln Dr.JagadishSaran'scase(AlR 1980 S ( 820) (supra), it was observed by the Hon. Su preme Court that equal opportunity in high education is to be provided and the region when the institution is situated is a relevant considera tion. Considerations would definitely differ if the course is for higher level of speciality. It was held by the Supreme Court that because of the material made available before the Court was so scanty. fragmentary and unsatisfactory and, therefore. the Court was prevented from expressing any definite decision on the point, whether reserva tion of 70% was excessive or not. The said case is of no help to the petitioners.
21. In State of Maharashtra v. Raj Kumar, AIK 1982 SC 1301 (supra), bonus/weightage to be given to certain candidates coming from rural area, having passed the S.S.C. Examination at villages or places with 'C' type Municipality was held to be ultra vires. No such point is involved in the present cases.
22. InSuneel Jalley's case, AIR 1984 SC 1534 (supra), the matter related to the admission to MBBS/BDS Course in Maharishl Dayanand University. Rohtak, and reservation of seats for rural candidates, held to be arbitrary and irrational violating Articles 14 and 16 of the Constitution of India. This case is not applicable to the facts of the present cases.
23. Prakash Chandra Agarwal, AIR 1985 SC 1709 (supra) case has also no bearing to the facts of the present case. In this case the matter related to the fixation of qualifying marks at 38 per cent for unreserved candidates by Public Service Commission. There was no alteration of such fixation of marks but still inclusion of candidates securing less than 38% marks and non-inclusion of candidates securing more than 38% marks in the merit list was held to be violative of the instructions.
24. The case of Reserve Bank of India, AIR 1986 SC 1830 (supra) related to the recruitment and promotion policy of Class III employees of Reserve Bank. The Provisions for consideration of centre-wise seniority of employees was held not to be violative of Arts. 14 and 16 of the Constitution of India on the ground that seniority of employees on all-India basis was not considered. It was held by the Apex Court that in service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touchstone. However, the principle laid down by the Hon. Supreme Court in this case is also distinguishable.
25. The case reported in Slate of Rajasthan v. Dr. Ashok Kumar Gupta, AIR 1989 SC 177 (supra) is also of no help to the parties for the reason that in that case the Ordinance No. 278E (d) (ii) of the Ordinances of University of Rajasthan applied for admission to Post-Graduate Course in any of the five Medical Colleges provided that the student had passed his final year M.B.B.S. Examination to which admission in P.G. Course was sought was held to be unconstitutional.
26. The case of Shankarasan Das, AIR 1991 SC 1612 (supra) has no application to the facts of the present case. This case related to the fact as to whether inclusion of the name to be selected/to be appointed because of any justifiable right to such a selectee or not.
27. Ms. Swati Gupta's case, 1995 (2) JT (SC 438 (supra) related to a case where earlier notifi cation was amended by the later notification by reducing the reservation of the general categon to 35% was held to be violative of Article 16 of the Constitution. Later on the reservations were made on 50% basis in the general category and 50% for reserved categories. This case has no relevancy to the facts of the present case.
28. It is necessary to give certain details of passing the examinations of the petitioners in the present writ petitions.
29. In S.A.W. 765/1994, the appellant had passed Xth Class from West Bengal, XI Class from Ajmer, Graduation from University of Rajasthan. He had gone to Calcutta only for short period.
30. All other writ petitioners connected will the above Special Appeal (Writ) No. 765/1994 have only challenged the vires of guidelines instructions under rule 4 by stating that they an Graduates from Rajasthan and also resident of Rajasthan. It is not clear in any of the case whether they had passed the Secondary School Examine lion from Rajasthan or from outside Rajasthan From reading of guidelines of P.T.E.T. Test. 1994, it is very clear that 20% of the seats have been left open for admission in the B.Ed. Course on the basis of merit, irrespective of the district of State to which the candidate belongs and remain ing seats faculty-wise have been reserved for each district in proportion to the population of the districts and for deciding the candidature of ; person from a district of Rajasthan, the only consideration will be the district from where UK candidate has passed Secondary School Exami nation, as is clear from the combined reading of Rule 4 (b) read with Note 5 of the said Rule 4 From reading of the abovesaid clause (b) of Rule 4 and Note 5, it is very clear that for the remaining 80% of seats, the determination is to be made on the basis of being resident of Rajasthan. which residence is to be taken on the basis of district from where a candidate passes Secondary School Examination.
Rule 4 (b) has already been held to be intra vires for the reasons mentioned in the Division Bench Judgment of Mahavir Prasad Jangid's case and, therefore, there is no merit in the writ petitions and the petitioners are not entitled to any relief (except S. A.W. No. 765/1994). Even otherwise, the matter related to 1994, and there was hardly any necessity to interfere at this stage.
31. In regard to S.A.W. 765 of 1994, on the same analogy as in Civil Writ Petition No. 2455/ 1987, Ganpat Singh v. State of Rajasthan, which was decided along with connected matters in Mahavir Prasad's case (supra), it was held that the candidates who are residents of Rajasthan and also qualified the remaining examination subsequent to Xth Class from Rajasthan, are entitled to he considered for admission in B.Ed. Classes and in their cases for the purposesof reservation in the particular institution, their place of residence shall be taken as the district of resident, meaning thereby that even if has, because of the compelling circumstances, passed his Xth Class or Xlth Class etc. from outside. Rajasthan, but is otherwise a permanent resident of Rajasthan, has passed the qualifying examination from Rajasthan, his place of resident shall be taken as a resident for the purposes of district as contemplated under Note 5 of the Notes of Rules 4 and 5 as reproduced above. For removing the anomalous position, for example that if a candidate who is otherwise a resident of Rajasthan but passes only one Examination of Xth Class from outside Rajasthan and qualifies other examinations in Rajasthan, shall feel the disqualification of being not the resident of Rajasthan for the purposes of Note 5 under Rules 4 and 5 but if a non-resident of Rajasthan, who passes only one examination in the State of Rajasthan i.e. Xth Class or Secondary School in Rajasthan but all other examinations are passed by him outside Rajasthan shall be entitled to admission on the basis of Secondary School Examination which he had passed from Rajasthan. This result is to be avoided and, therefore, agreeing with the observations in Civil Writ Petition No. 2455/1987,Ganpat Singh v.State of Rajasthan that even if a candidate who is otherwise a permanent resident of Rajasthan has passed the Secondary School Examination under compelling circumstances from outside Rajasthan but has passed other qualifying examinations in Rajasthan is entitled to be considered for belonging to the district of which place he gives certificate of his residence.
32. S.A.W. 765/1994 is disposed of with the above said observations but because of the reason that admission to the Session 1994-95 is over long-back, no effective relief can be granted to the appellants in S.A.W. No. 765/1994.
33. In view of the abovesaid discussions, we totally agree with the principle and interpretation laid down by the Division Bench of this Court in Mahavir Prasad's case.
34. The writ petitions are dismissed.