Munira Bakshi & Ors. vs Govt. Of National Capital ...
1998 Latest Caselaw 900 Del

JUDGMENT

Cyriac Joseph, J.

1. A common question arises in these three writ petitions and hence they are being disposed of by a common judgment.

2. The petitioners are applicants for admission to the Four Year Bachelor of Engineering Full Time Courses in the Swarn Jayanti Kanya Prodyogiki Sansthan which is an Engineering College for women established by the Government of National Capital Territory of Delhi and affiliated to the newly formed Indraprastha Vishwavidyalaya. The petitioners challenge clause 12.1A of the Prospectus 1998-99 issued by the Government of Delhi. The said clause 12.1A stipulates that minimum of 50% seats in each category are earmarked for candidates passing 10+2 course from schools run by Govt. of NCT of Delhi. According to the petitioners, the classification of candidates into two classes, namely candidates passing 10+2 courses from schools run by Govt. of NCT of Delhi and candidates from 10+2 courses from other schools in the NCT of Delhi is unreasonable, irrational, arbitrary and violative of Article 14 of the Constitution of India. The petitioners pray for striking down the said clause 12.1A as unconstitutional and also for a direction to the respondents to complete the process of admission ignoring the impugned clause 12.1A.

3. Ms. Munira Bakshi, petitioner in CW 4628/98 passed the Senior School Certificate Examination of the CBSE in the year 1998 from St. Anthony's Sr. Secondary School, Safdarjang Development Area, Hauz Khas, New Delhi which is admittedly a public school recognised under the Delhi School Education Act. She obtained 426 out of 500 marks (85.2%) in the Senior School Certificate Examination. She got an aggregate of 88.66% marks for Physics, Chemistry and Mathematics. Ms. Markandey, petitioner in CW 4629/98 passed her Senior School Certificate Examination in the year 1998 from Sardar Patel Vidhyalaya, New Delhi - 110 003 which is admittedly a public school recognized under the provisions of Delhi School Education Act. She obtained 426 out of 500 marks (85.2%) in the Senior School Certificate Examination. She got the aggregate of 90% marks in Physics, Chemistry and Mathematics. Ms. Annu Gupta, Ms. Sweta Harshwardhan and Ms. Tanupriya Gupta petitioners CW 4661/98 passed the qualifying examination from Schools other than those run by the Government of National Capital Territory of Delhi.

4. As per clause 1 of the Prospectus 1998-99 issued by the Govt. of NCT of Delhi the Swarn Jayanti Kanya Prodyogiki Sansthan has been established for imparting Engineering Education to women in emerging areas of technology keeping in view the global technological developments and to meet the requirements of the Indian industry in the 21st Century. As per clause 2 of the Prospectus the Sansthan is designed to offer degrees from under graduate through post graduate to Ph.D level, covering several emerging streams of Engineering, Science and Technology as well as over all education/training with the mission objective of evolving well rounded scientific engineering personnel "Complete Engineers" which should further add to its utility and advantages for industry, society and nation. The Sansthan is being affiliated to the newly formed Indraprastha Vishwavidyalaya. As per clause 4 of the Prospectus a candidate passing any one of the following examinations from a school in National Capital Territory of Delhi and securing 60% or more marks in the aggregate of Physics, Chemistry and Mathematics shall be eligible for admission to the first semester of Bachelor of Engineering course provided she has passed in each subject separately;

(i) Senior Secondary School Certificate Examination (12 year course) of the CBSE, New Delhi;

(ii) Indian School Certificate Examination (12 year course) of the Council for Indian School Certificate Examination, New Delhi; and

(iii) Any other examination recognized as equivalent to the Senior Secondary School Certificate Examination of the CBSE by the University of Delhi/Indraprastha Vishwavidyalaya.

5. As per clause 8 of the Prospectus 15% of the total number of seats and fresh intake are reserved for Scheduled Castes students and 15% of the total number of seats of fresh intake are reserved for candidates belonging to the Backward Communities. 5% of the total seats of fresh intake will be offered to children and/or widows of military/paramilitary personnel.

6. Clause 12 of the Prospectus provides for mode of admission. For convenience clauses 12.1, 12.1A and 12.2 are extracted hereunder:-

12. MODE OF SELECTION

Clause 12.1

Merit Order will be prepared on the basis of aggregate percentage of marks in Physics, Chemistry, Mathematics in Senior Secondary School Certificate Examination or equivalent examination.

Clause 12.1A

However, minimum of 50% seats in each category are earmarked for candidates passing 10+2 course from Schools run by Government of National Capital Territory of Delhi.

Clause 12.2

In case there are two or more students having same aggregate marks in Physics, Chemistry and Mathematics, the one with higher marks in English will be placed higher in merit order. In case still candidates are having the same aggregate marks in Physics, Chemistry, Mathematics and the same marks in English also, the one senior in age will be assigned the higher merit. The merit shall be prepared on the basis of percentage of marks secured and calculated upto second place of decimal.

The Prospectus originally issued did not contain clause 12.1A. It was subsequently inserted through an addendum published in the newspapers. From the relevant files of the Government it is seen that the addendum was issued on the basis of an announcement made by the Chief Minister in a press conference convened to issue the Prospectus.

7. Respondents have filed a counter affidavit stating that there are certain unique features about the new college being set up by the respondent No.1. It is the first Government Engineering College meant only for women in the entire country. It is also probably the only engineering college in the country in which there is no tuition fee whatsoever. It is also stated that since it is a Government run College and since the State Government is bearing the expenses of running the college and subsidising the study therein the government's views and wishes of the category from where students should be drawn is entitled to weight. Introduction of Clause 12.1A of the Prospectus has been justified in paragraph 5 of the counter affidavit which is extracted below:

"It is a well known fact that students in Government Schools come from economically and socially disadvantageous background. They are able to study in Government Schools since there is no tuition fee in these schools and tuition is free. Even other charges are nominal and it is inexpensive to study in Government Schools where even the poorest families can send their children. In fact the admissions are totally open. As compared to this, public schools attract students from middle to higher income backgrounds, where not only are facilities better on an average but also the students of public schools can afford to augment their education by taking private tuitions. The fee structure in most private (public) schools is nearly Rs. 1000/- per month as compared to less than Rs. 20/- per month for Government Schools. These admissions are also highly restricted. It is thus a well known fact that Government School students are greatly disadvantaged when it comes to competing with public School students for admission to engineering and technical colleges. Even in other Central Government run schools the admissions are not open to the general public. Thus, a preference or advantage or ear-marking a certain number of seats to Government school students is based on an intelligible differentia which has rational relation with the object sought to be achieved viz., to help disadvantaged students studying in Government Schools get opportunities to avail of technical and engineering education."

8. To demonstrate the disadvantage faced by students of Delhi Government run schools the respondents have produced as Annexure-R1, the copy of a chart prepared and published by the Central Board of Secondary Education in the Quarterly Bulletin for April to June 1998. The said chart shows that the pass percentage of students from different categories of schools in Delhi during the year 1998 was as follows:

      Government Schools                 62.8%
     Government Aided Schools           68.7%
     Independent (Public) Schools       88.3%
     Kendriya Vidyalaya Schools         76.5%
     J.N.V.                             86.4%
     Private/Patrachar Schools          23.4%

 

      Respondents  have further stated that in the science stream, only  25% of  the girl students who appeared in the examination from  the  Government Schools  secured 60% or more marks whereas the corresponding percentage  of girl students who secured 60% or more marks when all the schools are  taken together was above 50%. 
 

9. To demonstrate the extent of benefit extended to the students of the Delhi Government run schools by earmarking 50% seats for them, respondents have produced Annexure R-3 statement regarding anticipated cut off percentage for admission. As per the said statement, if 50% seats are not earmarked for students of Delhi Government run schools, they will get only 12 seats and the remaining 148 seats will go to students from other schools. If 50% seats are earmarked as per Clause 12.1A of the Prospectus, 80 out of the 160 seats will be available to students from the Delhi Government run Schools. Similarly, if Clause 12.1A of the Prospectus is enforced, a student from Delhi Government run schools with 80% marks will get admission whereas a student from other schools must have at least 93% marks to get admission in the general category. In the absence of the earmarking of seats under Clause 12.1A of the Prospectus all students including those from Delhi Government run schools must have at least 91% marks to get admission in the general category.

10. As per the information supplied to the Court by the learned counsel for the respondents (based on the material available in the Departmental Directory published by the Delhi Bureau of Text Books, Department of Educa-

tion, Government of Delhi, published in January 1997) the number of different categories of Senior Secondary Schools in the National Capital Territory of Delhi is as given below:

      (i)       Delhi Government run Schools  -    625 
     ii)       Delhi Government Aided Schools  -  169 
     (iii)     Privately Managed Schools  -       654 



 

 11.  Admittedly  the  impugned earmarking of 50% seats  for  students  from Delhi  Government run schools is not on the ground of religion or  race  or caste  or  sex  or place of birth or language. Hence, it  does  not  offend 
Article 15(1) or Article 29(2) of the Constitution of India. In CW  4661/98 

one of the grounds urged by the petitioners is that by reserving/earmarking minimum of 50% seats for candidates from Delhi Government run schools, total reservation has risen above the maximum permissible reservation limit of 50% and hence the impugned provision is illegal. But in my view, earmarking of 50% seats as per the impugned Clause 12.1A of the Prospectus is not a reservation as understood by Article 15 of the Constitution of India and hence it cannot result in excessive reservation as alleged. Learned counsel for the petitioners also conceded that their challenge against Clause 12.1A in the Prospectus could be only on the ground that it offended Article 14 of the Constitution of India. Learned counsel for the respondents also did not seek to justify the impugned provision under Article 15(4) of the Constitution of India. Hence the only question to be decided is whether the impugned provision offends Article 14 or not.

12. The scope, content and meaning of Article 14 of the Constitution of India has been subject matter of a catena of decisions of the Hon'ble Supreme Court. It has been held that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. Article 14 requires that State action must not be arbitrary but must be based on same rational and relevant principle which is non-discriminatory. Article 14 is attracted where equals are treated differently without any reasonable basis. All persons similarly circumstanced shall be treated alike in the matter of privileges conferred and liabilities imposed. Article 14 does not forbid classification but the classification must be reasonable and the classification has to be justified on the basis of the nexus between the classification and the object to be achieved. Article 14 forbids class legislation but it does not forbid reasonable classification for the purpose of legislation. To pass the test of permissible classification, two conditions must be fulfillled viz.: (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group ; and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Statute in question. Article 14 requires that the classification must not only be based on same qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. The question raised by the petitioners in these petitions has to be decided in the light of the above principles laid down by the Hon'ble Supreme Court.

13. Learned counsel for the petitioner contended that since the Government of NCT of Delhi has set up the respondent engineering college and maintains it, the said Govt. has the power to regulate admission in its own institution. According to the learned counsel, the Govt. which bears the financial burden of running the college is entitled to lay down criteria for admission and to decide the sources from which admission would be made. Hence, it was contended that the Govt. of NCT of Delhi was entitled to direct that minimum of 50% seats will be earmarked for students who passed the qualifying examination from the Delhi Govt. run schools. In support of this contention learned counsel relied on the judgment of the Hon'ble Supreme Court in D.N. Chanchala Vs. State of Mysore . But it has to be observed that in the same judgment the Hon'ble Supreme Court held that though the Govt. has the power to decide the sources from which admission would be made, such classification should not be arbitrary and should have a rational basis and a reasonable connection with the object of the rules. As per the provision impugned in the above case 80% of the seats in Medical Colleges affiliated to a particular University were set apart for students who passed the qualifying examination from that University and the remaining 20% of the seats could be allotted to students passing from colleges affiliated to any other university. The Court upheld the University wise distribution of seats in the Govt. Medical Colleges holding that the classification based on the Universities was valid. Hence, the real issue in these cases is whether the classification of candidates into two groups, viz., those who passed the qualifying examination from the Delhi Govt. run schools in the NCT of Delhi and those who passed the qualifying examination from other schools in the NCT of Delhi is arbitrary and unreasonable and whether such classification has a reasonable connection with the object of the rules regulating the admission of students.

14. According to the petitioners, the classification between students from Delhi Government run schools and students from other schools in the National Capital Territory of Delhi is not reasonable and is not founded on any intelligible differentia which distinguishes persons that are grouped together from others left out of the group and even if there is any differentia it does not have any reasonable relation to the object sought to be achieved. It is contended that the impugned classification is arbitrary and discriminatory. In support of the contention of the petitioners, the learned counsel relied on the decisions of the Hon'ble Supreme Court in State of Uttar Pradesh Vs. Pradeep Tandon and others, , Arti Sapru Vs. State of Jammu and Kashmir and Suneel Jately Vs. State of Haryana . However, according to the respondents, for the reasons stated in para 5 of the counter affidavit and in view of the factual position emerging from Annexure R1 to R3, the impugned classification is not arbitrary or discriminatory and it is based on an intelligible differentia which has a rational relation to the object sought to be achieved viz., to help disadvantaged students studying in Government run schools get opportunities to avail of technical and engineering education.

15. The first question to be considered is whether the impugned classification of the candidates into two groups viz. - (i) those who passed the qualifying examination from Delhi Government run schools ; and (ii) those who passed the qualifying examination from other schools in the NCT of Delhi is reasonable and is founded on an intelligible differentia. As per the particulars supplied by the learned counsel for respondents and referred to in paragraph (10) above, out of the total 1484 Senior Secondary Schools in the NCT of Delhi, only 625 are Delhi Government run schools and the remaining 859 are Delhi Government Aided Schools, Privately Managed schools, Kendriya Vidyalayas, N.D.M.C. run schools etc. Selection of candidates for admission to the respondent college is based on the marks obtained in Physics, Chemistry and Mathematics in the qualifying examination and there is no separate entrance test. The qualifying examination is S.S.S.C. Examination of the C.B.S.E., New Delhi or I.S.C. Examination of the Council for I.S.C. Examination, New Delhi or any other examination recognised as equivalent to the S.S.S.C. Examination of C.B.S.E. Admittedly the candidates who passed from the Delhi Government run schools have passed the S.S.S.C. Examination of C.B.S.E., New Delhi. Most of the candidates who passed from the other schools in the NCT of Delhi also have passed the same S.S.S.C. Examination of C.B.S.E., New Delhi. Others have passed the ISC Examination or an examination recognised as equivalent to the S.S.S.C. Examination of C.B.S.E. The candidates who passed the C.B.S.E. Examination from the Delhi Government run schools and from the other schools had appeared in the same examination based on the same syllabus and the same system of valuation. The standard of education is the same and is prescribed by the same authority. The qualifications required for the staff are the same. The eligibility criteria for admission in Delhi Government run schools and in the other schools are the same. The equipments and facilities prescribed for the Delhi Government run schools and the other schools are the same. All these schools, whether they are run by the Government or aided by the Government or recognised by the Government, are governed by the relevant provisions of the Delhi School Education Act and the Rules made thereunder. Hence, the candidates who passed the qualifying examination from the Delhi Government run schools and the other schools in the NCT of Delhi from one class for the purpose of admission to the engineering course. There is no justification or rational basis for further classifying them into those who passed the qualifying examination from Delhi Government run schools and those who passed the qualifying examination from other schools in the NCT of Delhi. Such further classification is unreasonable and arbitrary. There is no intelligible differentia for such further classification. The only fact or circumstance of having studied in Delhi Government run schools is not an intelligible differentia or valid criterion for classification. The quality or characteristic found in the persons of one group and not found in the persons of the other group is that they studied in and passed the qualifying examination from the Delhi Government run schools. The said quality or characteristic does not have any reasonable relation to the object of selection of candidates for admission i.e. to secure the best possible talents for the course. For various reasons the Government is not able to run sufficient number of schools for all those who seek education. Hence, the Government has welcomed and encouraged the participation of non-governmental agencies in the field of education. The Government has been granting recognition and aid to many schools run by such agencies and only recognition to others. Even if people wanted admission in Government run schools there were not sufficient number of such schools to cater to all of them. Hence, people were forced to seek admission in Government Aided and Government Recognised schools. It is unfair and unreasonable to put such people to a disadvantage and to discriminate them in the matter of admission in an engineering college established by the Government, only on the ground that they did not study in a Government run school. Therefore the impugned classification of the candidates is highly arbitrary, unreasonable, discriminatory and unjust and it offends Article 14 of the Constitution of India.

16. Even assuming that the classification is based on an intelligible differentia, the differentia must have a rational relation to the object sought to be achieved. Hence, the next question is whether the differentia of the impugned classification has a rational relation to the object sought to be achieved. What was the object of regulating admissions to the respondent college and laying down criteria for selection of candidates by the Government? Educational institutions should attract the best talents, as pointed out by the Hon'ble Supreme Court in State of U.P. Vs. Pradeep Tandon & others . In the larger interest of the nation, it is dangerous to depreciate merit and excellence in any field. [See State of U.P. Vs. Budh Singh ].

Hence when there is a large number of eligible candidates seeking admission against the limited number of seats, admissions have necessarily to be made on the basis of selection. The object of such selection can only be to secure the best possible material for admission subject to the provisions for socially and educationally backward classes and the Scheduled Castes and the Scheduled Tribes. Whether the selection is from the general category or from the reserved categories, the object of selection must be to secure the best possible talent from the different categories. The said object will certainly be defeated if 50% of the seats in each category in the respondent college are earmarked for candidates who passed the qualifying examination from Delhi Government run schools. As pointed out in paragraph (9) above, even according to the respondents, as a consequence of the impugned classification and earmarking of seats, candidates from Delhi Government run schools who got lesser marks will get admission while candidates from other schools who got more marks will not get admission and 68 candidates from Delhi Government run schools who in the normal course will not get admission to the course on the basis of their merit will get admission denying the chances of 68 candidates with better merit from other schools. If the object of selection is to get the best talent for admission to professional colleges like the respondent college, the said object cannot be served by earmarking 50% seats in each category for candidates from Delhi Government run schools. Hence, the impugned classification does not have any reasonable relation or rational nexus with the object sought to be achieved. The impugned classification will only destroy the said object and will result in hostile discrimination, in as much as candidates with better merit being denied admission while candidates with lesser merit being granted admission merely because they happened to study in Government run schools. The impugned classification has also no rational nexus with the objects of establishing the college as stated in paragraphs 1 and 2 of the Prospectus.

17. Learned counsel for the respondents sought to justify the impugned classification on the basis of the averments contained in paragraph 5 of the counter affidavit which has been fully extracted in paragraph (7) above. According to him, students in Government schools come from economically and socially disadvantageous background whereas public schools attract students from middle to higher income backgrounds. There is no tuition fee in Government Schools and even other charges are nominal and hence it is inexpensive to study in Government Schools. The fee structure in most (private) public schools is very high. Admission in Government Schools are totally open whereas admissions in public schools are highly restricted. There are better facilities in public schools and the students of public schools can afford to augment their education through private tuitions. The government school students are greatly disadvantaged when it comes to competing with public school students for admission to engineering and technical colleges. Hence the disadvantaged and handicapped students of government schools deserve to be helped to get opportunities for technical and engineering education. The learned counsel for respondents further submitted that the impugned earmarking of 50% seats for students from government schools was done with the object of helping them as stated above. Learned counsel for the petitioners disputed the averments in the counter affidavit. They did not get a chance to file a rejoinder since the cases had to be heard immediately in view of the urgency. According to the learned counsel for the petitioners all the students of Government schools are not from economically and socially disadvantageous background and all the students in the other schools are not from middle to higher income backgrounds. Admissions in non-government schools also are open and the facilities there are generally similar to those in Government Schools. Some public schools may be more expensive compared to Government Schools but the fee structure in Aided and Recognized Schools is as per the guidelines issued by the Government. According to the learned counsel for the petitioners, the choice of the school does not necessarily depend on the economic or social background of the students. It depends also on factors like the location of the school, the readiness of the parents to invest money on education of children and the preferences of the parents. According to the counsel for the petitioners, there is no such disadvantage or handicap for government school students as alleged by the respondents in competing with students of other schools. The failure of the government school students to secure higher marks in the qualifying examination is only due to their lower level of intelligence and lack of hard work. The students from other schools should not be penalised and discriminated on account of their higher level of intelligence or better motivation or hardwork. Hence, according to the learned counsel for the petitioners, there is no justification for the preference shown to the Government school students in the matter of admission to a professional course in the respondent college. I find considerable force in the above arguments of the learned counsel for the petitioners. It cannot be disputed that the conditions in the Government run schools are not substantially different from most of the other schools which include Government Aided Schools, N.D.M.C. run schools, Central Government Schools etc. I find it difficult to accept that by being a student of a Government run School, a candidate is disadvantaged or handicapped to compete with students of other schools in the matter of admission to the engineering college. Admission is based on the marks obtained in the qualifying examination. The poor performance of a student in the qualifying examination could be due to various reasons. If the conditions in Government run schools are not satisfactory what is required of the Government is to take effective and necessary steps to improve those conditions. The alleged poor conditions in the government schools cannot be a justification for ignoring the merit of the candidates as assessed in the qualifying examination. As observed by the Hon'ble Supreme Court in Dr. Jagadish Saran & Ors. Vs. Union of India , only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderate such a purposeful course, can protective discrimination gain entrance into the portals of college campuses. In this case I do not find any such compelling considerations to justify a protective discrimination in favour of the students from the Delhi Government run schools as against the students from other schools in the National Capital Territory of Delhi which include Delhi Government Aided Schools, Central Schools (Kendriya Vidyalayas), Schools run by New Delhi Municipal Council, Patrachar Schools and Private Schools recognised by the Delhi Government under the Delhi School Education Act.

18. Moreover, it should be observed that there is no material placed on record by the respondents to substantiate the averments in paragraph 5 of the counter affidavit. The relevant Government files also did not show that the impugned decision was taken by the Government for the reasons or considerations stated in the counter affidavit. The impugned clause was not contained in the Prospectus issued by the Government. It was subsequently inserted through an addendum published in the newspapers. The addendum was issued on the basis of an announcement made by the Chief Minister in a Press Conference convened to issue the Prospectus. There was no indepth study or serious consideration of the conditions or circumstances in the Government run schools and the other schools. There was no material before the Government to justify the impugned classification. Even after an objection was raised in the file by one of the functionaries of the government pointing out that the classification was discriminatory and would not stand scrutiny of law, there was no proper consideration of the relevant aspects. The files disclose that the basis of the impugned decision was the sudden brain-wave of the Chief Minister during a Press Conference which prompted him to announce that 50% seats would be earmarked for candidates from Government run schools.

19. In the light of the discussions above I have no hesitation to hold that the impugned classification cannot pass the test of reasonable classification and that it is unconstitutional and invalid. Hence, I declare that the impugned clause 12.1A of the Prospectus is arbitrary, unreasonable, unjust and discriminatory and that it offends Article 14 of the Constitution of India. The said clause 12.1A is struck down as unconstitutional, invalid and inoperative. Respondents shall conduct selection and admission of candidates ignoring clause 12.1A of the Prospectus.

The writ petitions are allowed in the above terms. No order as to costs.