Delhi High Court
Krishna Adit Agarwal vs Guru Gobind Singh Indraprastha on 26 September, 2008
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 18.09.2008
+ Judgment delivered on: 26.09.2008
%(1) W.P.(C) 2763/2008
KRISHNA ADIT AGARWAL ..... Petitioner
Through: Dr. Aman Hingorani, Advocate
versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ANR. ..... Respondents
Through: Mr. G.D. Goel & Mr. Sanjiv Goel,
Advocates for respondent No.1.
Mr. Vikas Singh, ASG with Mr. R.
Balasubramaniam, Advocate for
respondent no.2.
Mr. Najmi Waziri, Advocate for
respondent No.3.
(2) W.P. (C) No.3313/2008
INDIAN MEDICAL ASSOCIATION
& ANOTHER ..... Petitioners
Through: Dr. Aman Hingorani, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Chetan Chawla, Advocate for
respondent no.1.
Mr. Maninder Singh with Mr. T. Singh,
Advocates for respondent no.2.
Mr. G.D. Goel & Mr. Sanjiv Goel,
Advocates for respondent No.3.
Mr. Vikas Singh, ASG with Mr. R.
Balasubramaniam, Advocate for
respondent no.4 & 5.
Mr. Najmi Waziri, Advocate for
respondent No.6.
(3) W.P. (C) No.4454/2008
ABHISHEK GUPTA & ORS. .... Petitioners
Through: Dr. Aman Hingorani, Advocate
versus
WP(C) No. 2763/2008 Page 1 of 36
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS. ..... Respondents
Through: Mr. G.D. Goel & Mr. Sanjiv Goel,
Advocates for respondent No.1.
Mr. Vikas Singh, ASG with Mr. R.
Balasubramaniam, Advocate for
respondent no.2 & 3.
Mr. Najmi Waziri, Advocate for
respondent No.4.
(4) W.P.(C) 6484/2008
KUMAR HIMANSHU .... Petitioner
Through: Dr. Aman Hingorani, Advocate
versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ORS. ..... Respondents
Through: Mr. G.D. Goel & Mr. Sanjiv Goel,
Advocates for respondent No.1.
Mr. Vikas Singh, ASG with Mr. R.
Balasubramaniam, Advocate for
respondent no.2 & 3.
Mr. Najmi Waziri, Advocate for
respondent No.4.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers Yes
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
VIPIN SANGHI, J.
1. This batch of writ petitions under Article 226 of the
Constitution of India (except WP(C) No.3313/2008 filed by Indian
Medical Association and Anr.) primarily seeks to challenge the
allocation of all the 100 seats for the wards of army personnel in the
respondent No.2 institute, viz. Army College of Medical Science, Delhi
Cantonment, Delhi (hereinafter referred to as ACMS), which has been
set up for offering the MBBS degree course. WP(C) No.3313/2008 has
been filed to restrain the setting up of the Respondent ACMS without
the approval of the Central Government under Section 10A of the
Medical Council of India Act. It also seeks a mandamus to require the
Respondent Nos.1 & 2 i.e. the Union of India and the MCI to require
the ACMS to first fulfill the qualifying criteria, before it is granted the
aforesaid permission. A mandamus is also sought against the
Respondent Guru Gobind Singh Indraprastha University to withdraw
the affiliation granted to ACMS unless it complies with the conditions
therefor. I shall be dealing with the facts as appearing in W.P.(C)
No.2763/2008 filed by Krishna Adit Agarwal. The petitioner Krishna
Adit Agarwal filed the present writ petition being WP(C)
No.2763/2008 in March/ April, 2008 with the grievance that he was
not being permitted to submit the application form for admission to
the ACMS for MBBS-PGME 2008-09 and he was not being provided
with the prospectus by ACMS on the ground that he is not eligible as
he is not a ward of an army personnel.
2. During the pendency of the aforesaid writ petitions the Govt.
of NCT of Delhi took a Cabinet decision bearing No.1422 dated
14.7.2008 which was circulated vide file No.F.3/3/2004-GAD/CN-2868-
2879, whereby the Cabinet of the Govt. of NCT of Delhi sought to
approve 100% admission for the wards of army personnel in the
ACMS. The Govt. of NCT of Delhi followed up the aforesaid Cabinet
decision by a notification dated 14.8.2008 bearing No.DHE-
4(33)/2008-09 purportedly issued in exercise of powers conferred by
Clause(b) of sub-section (1) of Section 12 of the "The Delhi
Professional Colleges OR Institutions (Prohibition of Capitation
Fee, Regulation Of Admission, Fixation Of Non Exploitative
Fees And Other Measures To Ensure Equity And Excellence)
Act, 2007" (referred as to "Delhi Act 80 of 2007" I may note that
whereas in the Gazette Notification, the Act is numbered as "80 of
2007", in the Notification dated 29.05.2007 placed on record, the
same is numbered as "8 of 2007"). By the said notification, the
Lieutenant Governor of NCT of Delhi has permitted the ACMS to
allocate 100% seats in the said college for admission to the wards of
army personnel in accordance with the policy followed by the Indian
Army.
3. To challenge the aforesaid Cabinet Decision and the
notification dated 14.08.2008, the petitioner sought the amendment of
the writ petition by moving the CM No.12473/2008 in WP(C)
No.2763/2008. This application was allowed by the Court on
8.9.2008. Since the issue is purely legal, no further counter affidavit
has been filed by the respondents to the amended writ petition.
Counter affidavits had been filed to the unamended writ petition by
respondent No.1 Guru Gobind Singh Indraprastha University
(hereinafter referred to as the GGSIPU) and by respondent No.2
ACMS.
4. Learned counsel for the petitioner submits that ACMS is an
institution established entirely by the Central Government. The said
institution has been leased land by the Government of India in Delhi
Cantonment area, which is Government property. Moreover the
hospital to which the ACMS is attached is the base hospital run by the
Army and is not owned or run by Army Welfare Education Society
(AWES), which has set up ACMS. It is argued that it cannot be said
that the ACMS is an unaided professional institution. It is a wholly
Government funded enterprise. Therefore, it is a Central Educational
Institution to which the Delhi Act 80 of 2007 is not applicable, since it
cannot be said to be an unaided institution. The Delhi Act 80 of 2007,
as per Section 2, applies to "unaided institutions" affiliated to a
University imparting education in degree, diploma and certificate
courses. "Institution" is defined to mean College or Institution aided
or unaided, affiliated to a university imparting education, inter alia, in
the discipline of medicine.
5. The alternative contention of the petitioner is that the
allocation of 100% seats in the ACMS for wards of army personnel, ex-
army personnel and war widows is in violation of Section 6 of the
Guru Gobind Singh Indraprastha University Act (hereinafter referred
to as the 1998 Act) and Article 15 of the Constitution of India. It is
further submitted that Section 6(1) of the 1998 Act mandates that the
University will be open to all persons. Section 6(2) permits the
respondent University to make special provisions, inter alia, for
admission of women, or of persons belonging to the weaker sections
of the society and in particular of persons belonging to Scheduled
Castes and Scheduled Tribes. Statute 24 of the respondent University
deals with the aspect relating to the conditions under which colleges
and institutions may be admitted to the privileges of the University
and the conditions under which such privileges may be withdrawn.
Clause 3 of the said Statute lays down the essential conditions of
affiliation of colleges and institutions. It, inter alia, states that "No
college or institution shall be admitted to the privileges of the
University unless" inter alia, "it undertakes to adhere to the
provisions of the Act, the Statutes, the ordinances and the regulations
of the University and to comply with the standing orders, directions
and instructions of the University." The petitioner submits that
Ordinance-30 of the respondent University has been framed in
keeping in view Article 15(5) of the Constitution of India read with
Section 6(2) of the 1998 Act for making special provisions for
advancement of weaker sections of the society, and in particular of
persons belonging to the Scheduled Castes and the Scheduled Tribes
by making special provision for their admission to self financing
private institutions affiliated to respondent University. It, inter alia,
states: -
"1. Reservation of seats and procedure of filing the
same in all the self-financing private institutions affiliated
with Guro Gobind Singh Indraprastha University in
respect of Delhi as well as Outside Delhi Category
candidates would be as follows:
(i) Scheduled Castes and Scheduled Tribes
....................
(ii) Reservation for Defence Category:
Five percent of seats are reserved for Defence
Category in the following order of priority:-
a) Widows/Wards of Defence personnel killed in
action.
b) Wards of serving Defence personnel and ex-
servicemen disabled in action.
c) Widows/wards of Defence personnel who died
in peace-time with death attributable to
military service.
d) Wards of Defence Personnel disabled in peace-
time with disability attributable to military
service.
e) Wards of Defence ex-servicemen and serving
personnel who are in receipt of Gallantry
Award.
(iii) Physically Handicapped
........................................
(iv) Supernumerary Seats for Kashmiri Migrants
.........................................
2. This procedure for filling up of the reserved
category seats would be the same as notified by the
University in the Admission Brochures from time to time.
3. This Ordinance would be applicable on the self-
financing private institutions other than the minority
institutions referred to in Clause (1) of Article 30 of
Constitution of India.
4. For reservations in the Government Institutions, the
policy of the Government of the NCT of Delhi already in
vogue will continue to apply.
5. This issues with the approval of the Competent
Authority.
6. This ordinance has come into force with effect from
the date of approval by the Board of the Management."
(emphasis supplied)
6. It is, therefore, argued by learned counsel for the petitioner
that the respondent ACMS having sought affiliation with the
respondent GGSIP University is bound to adhere to the provisions of
1998 Act, its Statutes and Ordinances which, inter alia, prescribed
reservation for defence category only to the extent of 5% seats. The
reservation of 100% seats of ACMS for the wards of serving and
retired army personnel and war widows, and the resultant denial of
admission to all other category of candidates is in the teeth of the
1998 Act, Statute 24 and Ordinance 30, as aforesaid. The petitions
have relied upon various other decisions, reference whereto is made
later in the judgment.
7. The stand of Respondent No.2 i.e. ACMS is that it has been
established by the Army Welfare Education Society (AWES), a
registered Society with the Registrar of Society, Delhi under the
Societies Registration Act, 1860. The objective of AWES is to cater to
the educational needs of the wards of serving army personnel, ex
army personnel and war widows of the Army. There are about 11.3
lakhs serving army personnel and about 20 lakhs ex army personnel
and war widows in the country. AWES is running approximately 123
army school and 12 professional colleges as a welfare measure for
the wards of army personnel as tribute for the sacrifices and service
being rendered by them for the nation. The stand of respondent No.2
is that the terms and conditions of service of army personnel are very
harsh. Consequently army service is not attracting adequate talent
for the protection of the country. The Indian Army is facing acute
shortage of manpower which is adversely affecting its operational
preparedness. It is stated that one of the core problems is that wards
of army personnel suffer serious disadvantages in pursuing education
for a number of reasons. Personnel serving in field/border areas
cannot keep their families with them due to security reasons and lack
of accommodation and education facilities, and at the places where
the families are provided accommodation, educational facilities that
are available may not be upto the desired standards. Consequently,
service conditions of the parents-like deployment at the border;
outposts in remote areas; having no or primitive educational
facilities; tenure based postings affecting continuity; lack of married
accommodation at military stations, and wherever available, lack of
adequate facilities, results in frequent change of schools with
different medium of instructions for such children, leading to
adjustment and other related problems, and; lack of supervision and
guidance from the fathers, lead to the children of the army
personnel/ex army personnel to suffer from disadvantages compared
to those coming from civil background. Additionally, some of the
States have laid down conditions such as number of years of studying
in the State and domicile requirements as a pre condition for
appearing in entrance examination for professional courses in the
States concerned. For the aforesaid reasons children of the army
personnel cannot compete with civilian children for admission to
professional courses since they do not enjoy a level playing field when
it comes to competition with their civilian counter parts. Since the
education of children of army personnel is vital in maintaining the
morale of army personnel, AWES was set up to raise and administer
its own educational institutions for wards of serving army personnel,
ex servicemen and war widows.
8. Respondent No.2 further submits that the Supreme Court
has upheld the reservation in favour of wards of ex defence personnel
in D.N. Chanchala vs. State of Mysore & Ors. 1971(2) SCC 293.
The submission of respondent No.2 is that there is no medical college
for the wards of army personnel in the country and seats reserved in
some of the medical colleges are woefully inadequate to meet the
requirements of approximately 60 lakh army children. So as to attract
adequate talent to join the army, AWES has opened 12 professional
colleges for the wards of army personnel. In line with the aforesaid
decision, it was decided to establish Army College of Medical
Sciences at New Delhi. It is submitted that respondent ACMS has
been set up through the Army Welfare Funds which are regimental
funds and are not public funds. No public or Government fund or
grants are used in running these educational institutions. The revenue
expenditure in establishing and running the army professional
colleges are made through regimental welfare funds in addition to
tuition fee payable by the students. The management body of AWES
comprises of senior serving army officers in ex officio and honorary
basis. It is submitted that AWES and its educational institutions do
not receive any financial aid or grant from the Central or State
Governments and that AWES is a purely unaided educational society.
There is no management quota in army professional colleges and
admissions are made solely on the basis of merit, drawn on the basis
of the written admission test. Fee structure is not aimed at
commercial exploitation and there is total transparency in admission
of eligible wards.
9. It is also argued that the purpose of establishing the
respondent Institution would be wholly defeated if the seats are
thrown open to the civilian candidates who are equipped to avail of
all other opportunities as compared to wards of army personnel.
10. It is further submitted that the ACMS being an unaided
professional college is entitled to maintain complete autonomy in its
administration, which would include admission of students. It claims
an unfettered fundamental right to choose students to be granted
admission, provided the admission procedure is fair, transparent and
non-exploitative. It is further argued that the restrictions on the
source of selection to the wards of army personnel, ex army personnel
and war widows does not amount to reservation. It does not amount
to discrimination against any citizen on the ground of religion, race or
caste or sex or place of birth. Wards of all army personnel, ex-
servicemen and war widows constitute a special class who, because of
the extraordinary difficulties that they face, unlike their civilian
counter parts, are in a disadvantaged position so far as their
education is concerned and they are, therefore, entitled to be treated
differently from the wards of civilians.
11. The respondent GGSIPU in its counter affidavit submits that
for establishment of a medical college in NCT of Delhi, the institution
requires permission under Section 10A of the Medical Council of India
Act. It also requires an approval from the Medical Council of India
and a No Objection Certificate from the Government of NCT of Delhi.
The respondent GGSIPU further states that admission and fee etc in
the unaided professional institutions in NCT of Delhi is regulated by
the Delhi Act No.80 of 2007. The said Act was passed by Govt. of NCT
of Delhi after amendment in Article 15 of the Constitution of India
vide Constitution (93rd Amendment) Act, 2005 dated 28.1.2006. In the
counter affidavit of the said University dated 17.5.2008, the
respondent University stated that ACMS had not been granted
affiliation by it till the filing of such affidavit. However, during the
pendency of the writ petitions the respondent University has granted
provisional affiliation to the ACMS of Medical Sciences vide
communication dated 6.8.2008, which has been placed on record by
the respondent University upon the Court requiring its production,
after the judgment was reserved.
12. Therefore, it needs to be firstly ascertained whether ACMS
can be said to be an "aided institution" or whether it is an "unaided
institution". The expression "Unaided Institution" has been defined
in Delhi Act 80 of 2007. It reads ""unaided institution" means an
institution other than an aided institution." "Aided Institution" is
defined to mean "an institution receiving recurring financial aid or
grant-in-aid from any State, Union Territory, Central Government or
the University Grants Commission, and includes a minority institution
as may be specified by the Government." In support of his
submissions that ACMS is an aided, and not an unaided institution,
the petitioner submits that the land for setting up the ACMS has been
leased by the Ministry of Defence, Government of India. The Base
Hospital is also not a hospital of the AWES. It is the Base Hospital of
the Army. On the other hand, the learned ASG Mr. Vikas Singh has
urged that AWES has been held as not being "a State" and that it has
been held that the funds of the Army Welfare Fund are not
government/public funds. He relies on Asha Vij & Ors. vs. the Chief
of the Army Staff &Ors. 2002 (VI) AD (Delhi) 109 and Union of
India & Anr. vs. Chotelal & Ors. JT 1998 (8) SCC 497. A similar
body, namely, Army Welfare Housing Organisation (AWHO) has also
been held not to be an instrumentality of the State in N.C. Rastogi v.
Union of India AIR 1986 Delhi 128. He submits that the Base
hospital of the army is being utilised by the ACMS only till such time
as the hospital of the said institution is set up.
13. In my view, considering the definitions aforesaid of the
expressions "aided institution" and "unaided institution" and the
aforesaid decisions of the various courts including this Court,
whereby it has been held that AWES is not an instrumentality of the
State and that the regimental funds, which have been used for the
purpose of setting up, and for the purpose of meeting the recurring
expenses of ACMS, do not constitute government/public funds, it
cannot be said that ACMS is an aided institution. To be classified as
an aided institution, I would assume that an overwhelming percentage
of the day to day recurring running and maintenance expenses would
have to be borne by the Government on a regular basis. That is how
even an "aided school" is understood under the Delhi School
Education Act. The petitioner has not produced any material on
record to show that there is any commitment made by the
Government to support the ACMS on a regular and recurring basis to
meet a large percentage of its day to day running and maintenance
expenses. Merely because, for the present, the ACMS is using the
base hospital of the army for the purposes of clinical experience and
education of the medical students, it does not mean that it is receiving
any "aid". So far as the land on which the ACMS has been set up is
concerned, the same belongs to the Government. The same has been
leased out to AWES initially for a period of 30 years, which could be
raised to 99 years. Even other private unaided educational institutions
have been allotted/leased land for setting up the institutions in the
past by the Government (L&DO) and the DDA in Delhi. Merely
because the same is paid for by such institution, does not make a
difference. I, therefore, reject the submission of learned counsel for
the petitioner that ACMS can be said to be an "aided institution" and
not an "unaided institution".
14. The fall out of the aforesaid finding is that the respondent
institute is governed by the Delhi Act No.80 of 2007. Section 12 of the
Said Act is relevant and the same reads as follows:-
"12. Allocation and reservation of seats-
(1) In every institution, except the minority institution-
(a) subject to the provisions of this Act, ten per cent of the
total seats in an unaided institution shall be allocated as
management seats;
(b) eighty five per cent of the total seats, except the
management seats, shall be allocated for Delhi students
and the remaining fifteen per cent seas for the outside
Delhi students or such other allocation as the Government
may by notification in the Official Gazette, direct;
(c) supernumerary sets for non-resident Indians and any
other category shall be as may be prescribed.
(2) In the seats mentioned in sub-section (1), an institution
shall reserve-
(a) seventeen per cent seats for the candidates belonging
to the Scheduled Castes category, one percent seats for
the candidates belonging to the Scheduled Tribes
category and such percentage of seats, for any other
category including Other Backward Classes as may be
prescribed;
(b) for seats not mentioned as allocated for Delhi students
in sub-section (1), fifteen per cent seats for candidates
belonging to the Scheduled Castes category, seven and a
half per cent seats for the candidates belonging to the
Scheduled Tribes category and such percentage of seats,
for any other category as may be prescribed.
(c) subject to clause (a) and clause (b), three per cent
seats for person with disabilities as provided in the
Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 (1 of 1996) and,
such percentage of seats for the wards of defence
personnel and any other category, as may be prescribed."
15. The Govt. of NCT of Delhi in exercise of powers conferred
by Section 23 of the Delhi Act 80 of 2007 framed "The Delhi
Professional Colleges or Institutions (Prohibition of Capitation
Fee, Regulation of Admission, Fixation of Non-Exploitative Fee
and Other Measures to Ensure Equity and Excellence) Rule,
2007 (hereinafter referred to as the said Rules). Rule 8 of the said
Rules deals with the allotment of seats. In so far as it is relevant states
as follows:
"8. Allotment of seats - (1) Allotment of seats in an un-
aided professional college or institution shall be made
college or institution-wise for each course.
(2) Every institution other than a minority
institution, shall provide for seats in respect of
management quota, wards of defence personnel,
persons with disability and others in the manner as
described below:-
(a) ...... ............
(b) Wards of Defence Personnel - Five percent of
the seats under each programme of study shall be
reserved for widows/wards of personnel of Armed
Forces in the order prescribed by the Rajya Sainik
Board from time to time."(emphasis supplied).
16. The submission of Dr. Hingorani, learned counsel for the
petitioner is that even if one were to proceed on the basis that the
Delhi Act No.80 of 2007 is applicable to ACMS, even so the said
institution can provide only 5% of the seats as reserved seats for
wards of army/ex-army personnel and war widows in the order of
preference prescribed by the Rajya Sainik Board from time to time.
On the other hand the submission of Mr. Vikas Singh, learned ASG is
that Section 12 of the Delhi Act No.80 of 2007 and, in particular,
Clause (b) of Section 12(1) empowers the Government of NCT of Delhi
to make such "allocation" as it may deem fit, and in exercise of the
powers so conferred the Government can allocate 100% seats for
being filled by the wards of army/ex-army personnel and war widows.
He, therefore, sought to justify the aforesaid cabinet decision
contained in Cabinet decision No.1422 dated 14.7.2008 as well as the
notification issued purportedly under Section 12(1)(b) of the Delhi Act
80 of 2007.
17. It, therefore, now needs to be determined whether the
Cabinet decision No.1422 dated 14.7.2008 and the Notification dated
14.8.2008 purportedly issued under Section 12(1)(b) of the Delhi Act
No.80 of 2007 are valid and competent or not, by reference to the
provisions of the Delhi Act No.80 of 2007 and the Rules.
18. The object of the Delhi Act No.80 of 2007, as evident from
the Preamble of the said Act is, inter alia, "to ensure equity and
excellence in professional education in the NCT of Delhi." From a
reading of Section 12, what emerges is that it talks of both-
"allocation" and "reservation". Section 12(1)(a) states that 10% of the
total seats in "every" unaided institution (except minority institution)
shall be "allocated" as management seats. Under Section 12(1)(b),
85% seats, of the remaining 90% seats (i.e.85/100 x 90/100 x total
seats) "shall be allocated for Delhi students" and "the remaining
fifteen percent seats" (i.e. 15/100 x 90/100 x total seats) "for the
outside Delhi students or such other allocation as the Government
may by notification in the Official Gazette, direct". The words "or
such other allocation as the Government may by notification direct" in
my view, do not relate to "eighty five percent of the total seats, except
the management seats" which are to be "allocated for the Delhi
Students" and only relate to "the remaining fifteen per cent seats for
the outside Delhi students." This is the plain grammatical meaning of
clauses (a) and (b) of Section 12(1). It is, even otherwise, reasonable
to conclude that an unaided institution set up in Delhi would largely
cater to the students of Delhi. That is the pattern for allocation of
seats followed in unaided institutions in Delhi.
19. While sub-Section(1) of Section 12 deals with the aspect of
"allocation" of seats, sub-Section (2) thereof deals with "reservations",
Clauses (a) & (b) of Section 12(2) deal with "reservations" of the
specified percentage of seats for the Scheduled Castes, Scheduled
Tribes, and Other Backward Classes category of candidates. Clause
(c) is very pertinent and provides that, subject to clause (a) and (b) [of
Section 12(2)], three percent seats are reserved for persons with
disabilities, and, "such percentage of seats for the wards of defence
personnel or any other category, as may be prescribed."
20. Therefore, the Delhi Act No.80 of 2007 provides for
"reservation" and not "allocation" of seats for the wards of defence
personnel. It does not provide for earmarking any percentage of the
total seats for the words of defence personnel, and thereafter, the
further division thereof by providing for reservations for the eligible
categories. Had the seats for the wards of defence personnel been
covered by sub-Section (1) of Section 12 dealing with "allocation",
there was no question of the same being covered by clause (c) of
Section 12(2). The fact that the Delhi Act No.80 of 2007 provides for
"reservation" and not "allocation" for the wards of the defence
personnel is also clear from the rule making power conferred by
Section 23, and particularly by Clause (g) of Section 23(2). The said
clause empowers the Government to make Rules for fixing the
"percentage of seats to be "reserved" for the ward of defence
personnel under clause (c) of sub-Section (2) of Section 12".
Pertinently, as aforesaid, the Government has also framed Rules as
extracted above, which prescribe the percentage of reservations for
the wards of the defence personnel at 5%. This shows that the
Government also understood the provision of seats for the wards of
defence personnel as an act of "reservation" and not "allocation". I
am, therefore, of the view that under the Scheme of the Delhi Act
No.80 of 2007, the Government is not empowered, in exercise of
powers conferred by Clause (b) of Section 12(1), to allocate 100%
seats in ACMS for wards of Army/ex-Army personnel or War Widows.
The power to "allocate" seats under Section 12(1) (b) as vested in the
Government is in respect of 15% of the 90% of the total number of
seats in ACMS. The said notification would, therefore, have to be
read down to save it from invalidity, by interpreting it to mean as
providing reservation upto the permissible extent. Section 14 of the
Delhi Act No.80 of 2007 states that "any admission made in
contravention of the provisions of the Act or the Rules made
thereunder, shall be void." Section 18 makes the contravention of the
provisions of the Act or the Rules made thereunder an offence, and
the offender is liable to be punished with imprisonment for a term
which may extend to three years or with fine which may extend to
Rs.1 Crore, or with both. Thus, the legislature has evinced its
intention in a clear and firm manner to punish the offenders with
severe punishments.
21. In my view, merely because the Rules provide for
reservation of 5% for the wards of defence personnel, it does not
mean that the Government can not in respect of ACMS, provide for a
higher percentage of reservation for the said category of candidates.
The prescription of 5% reservation is for general application to all the
unaided institutions. It does not preclude the Government from to
take into account the background of each institution, the purpose for
which it is set up, the organization/people who who have set up the
institution etc. and to permit a percentage of seats to be reserved for
a defined class of candidates. At the same time, it is clear that the
impugned Cabinet decision and the notification, by seeking to reserve
100% seats in ACMS for the wards of the Army/ex-Army personnel
and war widows, undisputedly compromises the relative merit of the
candidates which is protected by Section 13 of the Delhi Act No.80 of
2007. The same reads as follows:
"13. Manner of admission - An institution shall, subject
to the provisions of this Act, make admission through a
common entrance test to be conducted by the designated
agency, in such manner, as may be prescribed:
Provided that the management seats may be advertised
and filled up, from the candidates who have qualified the
common entrance test, by the institution is a transparent
manner based on the merit at the qualifying examination."
22. Section 3(d) defines "common entrance test" to mean "the
entrance test conducted for determination of merit of the
candidates followed by centralized counseling for the purpose of
merit based admission to an institution through a single window
procedure by the designated agency". Pertinently, the petitioner
Krishna Adit Agarwal has secured the 314 rank in the Common
Entrance Test (CET). According to the petitioner there are only 70
defence candidates who have cleared the CET, and secured ranks that
go upto 1688. Only 7 out of the 70 successful defence candidates
have a rank better than the petitioner Krishna Adit Agarwal. Similar
is the position with regard to few other petitioners in this batch of
petitions. However, it is not necessary to go into the ranking of each
of them for the present purpose.
23. Learned counsel for the petitioner submits that the question
is not about the grant of reservation to the wards of army/ex army
personnel and war widows in aided or unaided institutions. He does
not deny that they constitute a special class and could be provided
reservation within the Constitutional framework. He submits that the
issue raised by the petitioners is about the extent of such reservation,
and he submits that 100% reservation is even otherwise, not
permissible under the Constitutional Scheme as is sought to be done
in respect of the ACMS. By placing reliance upon Indira Sawhney vs.
UOI 1993 SC 477, he submits that the Supreme Court has held in
relation to Article 16 of the Constitution of India (which provides for
equality of opportunity in matters of public employment, and at the
same time entitles the State to make provision for reservation in the
matter of grant of employment or appointment to office under the
Government, local authority or other authority, in favour of the
Scheduled Castes, Scheduled Tribes and backward classes etc.), that
only in very exceptional situations, and not for all and sundry reasons
any further reservation of whatever kind should be provided under
Clause (1) of Article 16. In such cases the State has to justify, if called
upon, that the making such a provision is necessary in public interest
to redress a specific situation. If reservations are made both under
Clause (4) as well as Clause (1) of Article 16, the vacancies available
for free competition as well as reserved categories would be
categorically whittled down and that is not a reasonable thing to do.
24. On the other hand, the submission of Mr. Vikas Singh, the
learned Additional Solicitor General is that Article 15 enjoins the
State not to discriminate against any citizen on the grounds of
religion, race, castes, sex, place of birth or any of them. He submits
that the allocation of all the 100 seats in ACMS for the wards of
army/ex army personnel and war widows does not in any way violate
the mandate of Article 15. He submits that within the allocated
source, i.e., the wards of army/ex army personnel and war widows,
there is no discrimination in the matter of grant of admission on the
basis of religion, race, caste, sex, place of birth or any of them and
admissions are being made to the ACMS entirely on the basis of merit
of the candidates being judged on the basis of their ranking in the
CET conducted by the respondent University.
25. In my view this submission of the petitioner, in so far as it
pertains to grant of reservation in favour of the wards of army/ex-
army personnel and war widows in educational institutions, does not
hold good for two reasons. Firstly, the provision of reservation for
wards of army/ex-army personnel and war widows is not even under
challenge in this petition. Moreover, from the counter affidavit of
ACMS it is clear that the wards of the army/ex-army personnel and
war widows constitute a separate class for which reservations can
legitimately be provided, and there is disclosure of sufficient
justification for its being provided.
26. After the decision of the Supreme Court in T.M.A. Pai
Foundation & Ors. v. State of Karnataka & Ors. (2002) 8 SCC
481, the Supreme Court in Islamic Academy of Education & Anr.
v. State of Karnataka & Ors. (2003) 6 SCC 697 clarified various
aspects of T.M.A. Pai Foundation (supra). In para 6 of this decision
(at page 720) the Supreme Court formulated the questions which
arose for consideration before it. Question 3 framed by the Supreme
Court reads as follows:
"3. Whether private unaided professional colleges are
entitled to fill in their seats, to the extent of 100%, and
if not, to what extent;......."
27. While dealing with the aforesaid question, the Supreme
Court referred to para 68 of its decision in T.M.A. Pai (supra) which
reads as follows:
"68. It would be unfair to apply the same rules and
regulations regulating admission to both aided and
unaided professional institutions. It must be borne in mind
that unaided professional institutions are entitled to
autonomy in their administration while, at the same time,
they do not forgo or discard the principle of merit. It
would, therefore, be permissible for the university or the
government, at the time of granting recognition, to
require a private unaided institution to provide for merit-
based selection while, at the same time, giving the
Management sufficient discretion in admitting students.
This can be done through various methods. For instance, a
certain percentage of the seats can be reserved for
admission by the Management out of those students who
have passed the common entrance test held by itself or by
the State/University and have applied to the college
concerned for admission, while the rest of the seats may
be filled up on the basis of counselling by the state
agency. This will incidentally take care of poorer and
backward sections of the society. The prescription of
percentage for this purpose has to be done by the
government according to the local needs and different
percentage can be fixed for minority unaided and non-
minority unaided and professional colleges. The same
principles may be applied to other non-professional but
unaided educational institutions viz., graduation and post-
graduation non-professional colleges or institutes."
28. In para 13 of Islamic Academy (supra) the Supreme Court
observed:
"However, a proper reading of paragraph 68, indicates
that a further distinction has been made between
minority and non minority professional colleges. It is
provided that in cases of non minority professional
colleges "a certain percentage of seats" can be
reserved for admission by the management. The rest
have to be filled up on basis of counseling by State
agencies. The prescription of percentage has to be
done by the Government according to local needs.
Keeping this in mind provisions have to be made for the
poorer and backward sections of the society. It must be
remembered that, so far as, medical colleges are
concerned, an essentiality certificate has to be obtained
before the college can be set up. It cannot be denied
that whilst issuing the essentiality certificate the
respective State Governments take into consideration
the local needs. These aspects have been highlighted in
a recent decision of this Court in State of Maharashtra
v. Indian Medical Assn. Whilst granting the essentiality
certificate the State Government undertakes to take
over the obligations of the private educational
institution in the event of that institution becoming
incapable of setting of the institution or imparting
education therein. A reading of paragraphs 59 and
68 shows that in non minority professional
colleges admission of students, other than the
percentage given to the management, can only be
on the basis of merit as per the common entrance
tests conducted by government agencies. The
manner in which the percentage given to the
management can be filled in is set out hereinafter."
(emphasis supplied)
29. In paragraph 175 of the judgment rendered by S.B. Sinha, J.
in Islamic Academy (supra) the Supreme court observed as under:
"175. If it is to be held that in a case of minority institution
all the seats could be filled in by members of their
community/language, if available, the same would run
counter to para 68 of the Judgment which says about
certain percentage which can never be 100%. The
expression "different percentages" occurring in para 68
would clearly mean there cannot be any fixed percentage.
In a given case it may be more than 90% but in
another it may be less than 50%. Different
percentages must be worked out in terms of the
need of the institution. It has nothing to do with
minority or non-minority; aided or unaided." (emphasis
supplied)
30. If, in the case of even minority institutions, 100% of the
seats could not be filled by the management of the minority
institutions, certainly ACMS, which is not even a minority institution
(who enjoy special protection under Article 30 of the Constitution),
cannot seek to fill 100% of its seats from only a single source i.e. from
amongst the wards of the army/ex-army personnel and war widows.
31. The Supreme Court has held in AIIMS Students Union v.
AIIMS & Ors. AIR 2001 SC 3262 that a mechanism evolved, which
ensures admission in the post graduate courses in AIIMS to all
students graduating from AIIMS, amounts to super reservation. The
Supreme Court rejected the argument that reservation of 33% of post-
graduate seats in favour of AIIMS students is not a reservation as it
provides two sources of entry to PG courses of study in AIIMS,
namely, in-house candidates of AIIMS and open category of
candidates i.e. students other than from AIIMS. The Supreme Court
rejected the argument advanced by the appellants that the use of the
expression "reservation" in the context is misplaced. The Supreme
Court observed:
"We are dealing with a case where the division of seats
between two classes coupled with two level reservation
and unique percentile method has been so carved out,
as if tailor-made, as is resulting into a reservation
which ensures allotment to the extent of 100% of PG
seats followed by guaranteed placement in the choicest
of creamy disciplines to the candidates belonging to
one category (i.e. Institute's in-house candidates)
without regard to their competitive merit. This is not a
reservation but a super-reservation and certainly not a
source of entry."
In para 53, the conclusion recorded by the Supreme Court is
in the following words:-
"53. The upshot of the above discussion is that
institutional reservation is not supported by the
Constitution or constitutional principles. A certain
degree of preference for students of the same
institution intending to prosecute further studies
therein is permissible on grounds of convenience,
suitability and familiarity with an educational
environment. Such preference has to be reasonable and
not excessive. The preference has to be prescribed
without making an excessive or substantial departure
from the rule of merit and equality. It has to be kept
within limits."
32. In Pai Foundation (supra) as well as in P.A. Inamdar &
Ors. v. State of Maharashtra & Ors. (2005) 6 SCC 537, the
Supreme Court has held that "education up to undergraduate level on
one hand and education at graduate and post-graduate levels and in
professional and technical institutions on the other are to be treated
on different levels inviting not identical considerations". At the
graduation level professional courses such as the one in question,
there cannot be 100% reservation, or the limiting the sources of
selection to only one source/class by giving a go by to merit. The
respondent ACMS is bound to comply with the terms of affiliation on
which affiliation can be granted and, in fact, has been granted to
ACMS by the respondent University. In Pavai Ammal Vijayapuri
Education Trust v. Government of Tamilnadu & Ors. AIR 1995
SC 63 the aforesaid position is clearly stated. From para 107 at page
593 (as reported in SCC) of P.A. Inamdar (supra), it appears that
once an educational institution is granted aid or aspires for
recognition, the state may grant aid or recognition accompanied by
certain restrictions or conditions which must be followed as essential
to the grant of such aid or recognition.
33. Reliance placed by the learned ASG on Sameer Anand v.
Amity Institute of Law decided by the High Court of Punjab &
Haryana in Civil Writ Petition No.1098/2000, on 30.01.2001, does not
appear to be of much help to determine the controversy raised in
these petitions. That was a case where 80% of the seats in the Army
Institute of Law, also set up by AWES, were reserved for wards of
army personnel. The remaining 20% seats were meant for either
Punjab residents or fell in the All India category. The petition was
dismissed, inter alia, by holding that it was not a case of reservation
in favour of the wards of army personnel, but a case of fixing the
source from which the candidates were being drawn. This decision is
not of much assistance, since it is rendered before the decisions of the
Supreme Court in T.M.A. Pai Foundation (supra), Islamic
Academy of Education (supra) and P.A. Inamdar (supra).
Moreover, unlike in the said decision, the present case is governed by
the Delhi Act No.80 of 2007, which specifically deals with the aspect
of allocation and reservation, as discussed hereinabove. It appears the
learned Judge was not appraised with the judgment of the Supreme
Court in AIIMS Students Union (supra).
34. Learned ASG also submits that a Division Bench of the
Punjab & Haryana High Court in Army Institute of Higher
Education v. State of Punjab & Ors. Civil Writ No.8961/2007,
decided on 04.10.2007, while dealing with a case pertaining to an
institution running the B.Ed. Course took a contrary view by holding
that the Army Institute of Higher Education could not be allowed to
fill up all the seats exclusively from the wards/dependants of army
personnel ignoring other meritorious eligible candidates. This
decision was appealed against before the Supreme Court. He submits
that the Supreme Court has granted leave and virtually stayed the
operation of the said judgment in SLP (Civil) No.887/2008.
35. In my view, the mere fact that the Supreme Court has
granted a leave to appeal from the decision of the Division Bench in
Army Institute of Higher Education (supra) cannot be taken to
mean that the Supreme Court has set aside the decision of the
Division Bench. In fact, a perusal of the order dated 25.01.2008
passed in the aforesaid Special Leave Petition shows that the
Supreme Court did not in terms stay the operation of the judgment of
the Division Bench. However, it appears that the operation of various
notifications by which the Army Institute of Higher Education was
aggrieved was stayed. On 15.09.2008, when the Supreme Court
granted leave the aforesaid interim order dated 25.01.2008 was
continued. It cannot, therefore, be said that the decision of the
Division Bench of the Punjab and Haryana High Court, in the
aforesaid matter, has either been disapproved or even stayed by
Supreme Court. The Supreme Court in P.A. Inamdar (supra) in para
134 observed that different considerations would apply for graduate
and post graduate level of education as also for technical and
professional educational institutions. Such education cannot be
imparted by any institution unless recognized by or affiliated with any
competent authority created by law, such as the University, Board,
Central or State Government or the like. Excellence in education and
maintenance of high standards at this level are a must. To fulfil these
objectives, the State can and rather must, in national interest, step in.
The education, knowledge and learning at this level possessed by
individuals collectively constitutes national wealth.
36. What was meant when the Supreme Court observed that
"different considerations would apply" for graduate/post graduate
level education and for technical/professional educational institutions,
which are unaided? The answer lies in para 125 of the Judgment in
P.A. Inamdar (supra). The Supreme Court had observed as under: -
"125. As per our understanding, neither in the
judgment of Pai Foundation nor in the Constitution
Bench decision in Kerala Education Bill, which was
approved by Pai Foundation, is there anything which
would allow the State to regulate or control admissions
in the unaided professional educational institutions so
as to compel them to give up a share of the available
seats to the candidates chosen by the State, as if it was
filling the seats available to be filled up at its discretion
in such private institutions. This would amount to
nationalization of seats which has been specifically
disapproved in Pai Foundation. Such imposition of
quota of State seats or enforcing reservation policy of
the State on available seats in unaided professional
institutions are acts constituting serious encroachment
on the right and autonomy of private professional
educational institutions. Such appropriation of seats
can also not be held to be a regulatory measure in the
interest of minority within the meaning of Article 30(1)
or a reasonable restriction within the meaning of
Article 19(6) of the Constitution. Merely because the
resources of the State in providing professional
education are limited, private educational institutions,
which intend to provide better professional education,
cannot be forced by the State to make admissions
available on the basis of reservation policy to less
meritorious candidate. Unaided institutions, as they are
not deriving any aid from State funds, can have their
own admissions if fair, transparent, non-exploitative
and based on merit."
37. Therefore, in respect of the unaided non minority
educational institutions, the emphasis (even in respect of institutions
other than those imparting graduate/post graduate and
technical/professional education) was that the admissions to such
educational institutions should be based on merit and merit should
not to be compromised by thrusting the reservation policy of the State
upon such educational institutions. In respect of graduate/post
graduate level of education, as also in respect of technical/provisional
education the emphasis on maintenance of higher standards and
excellence is even greater. Para 107 of the judgment in P.A.
Inamdar (supra) is instructive, and relevant extract thereof reads as
follows:-
"107. Educational institutions imparting higher
education i.e. graduate level and above and in
particular specialized education such as technical
or professional, constitutes a separate class. While
embarking upon resolving issues of constitutional
significance, where the letter of the Constitution is not
clear, we have to keep in view the spirit of the
Constitution, as spelt out by its entire scheme.
Education aimed at imparting professional or
technical qualifications stands on a different
footing from other educational instruction. Apart
from other provisions, Article 19(6) is a clear indicator
and so are clauses (h) and (j) of Article 51A. Education
upto undergraduate level aims at imparting
knowledge just to enrich mind and shape the
personality of a student. Graduate level study is a
doorway to admissions in educational institutions
imparting professional or technical or other
higher education and, therefore, at that level, the
considerations akin to those relevant for
professional or technical educational institutions
step in and become relevant. This is in national
interest and strengthening the national wealth,
education included. Education up to
undergraduate level on the one hand and
education at graduate and post-graduate levels
and in professional and technical institutions on
the other are to be treated on different levels
inviting not identical considerations, is a
proposition not open to any more debate after Pai
Foundation. A number of legislations occupying the
field of education whose constitutional validity has
been tested and accepted suggest that while
recognition or affiliation may not be a must for
education up to undergraduate level or, even if
required, may be granted as a matter of routine,
recognition or affiliation is a must and subject to
rigorous scrutiny when it comes to educational
institutions awarding degrees, graduate or post-
graduate, post-graduate diplomas and degrees in
technical or professional disciplines".
38. In T.M.A. Pai Foundation (supra) the Supreme Court in
para 58 of the judgment delivered by Kirpal, CJ., observed that for
admission into any provisional institution merit must play an
important role. It is necessary that meritorious candidates are not
unfairly treated or put to a disadvantage by preferences shown to less
meritorious but more influential candidates. Excellence in
professional education would require that greater emphasis be laid on
the merit of a student seeking admission.
39. This batch of cases present a somewhat reversed situation,
inasmuch as, ACMS, which is an unaided institution imparting
professional education, with the backing of the Government, is
seeking to disregard the merit of the candidates by screening them on
the basis whether they are or they are not wards of army/ex-army
personnel and war widows. Since the thrust of the decisions of the
Supreme Court in T.M.A. Pai Foundation (supra) as well as in P.A.
Inamdar (supra) is to lay emphasis on maintenance of excellence and
higher standards, inter alia, in professional courses, the action of the
respondents' in seeking to preserve 100% seats in ACMS for the
wards of army/ex-army personnel and war widows even otherwise
does not appear to be constitutionally valid. As I have observed above,
the impugned notification would, therefor, have to be read down to
sustain it.
40. The issue that now arises for consideration is, as to what
percentage of seats can validly be claimed to be reserved in ACMS for
wards of army/ex-army personnel and war widows. One cannot lose
sight of the fact that ACMS has been set up by AWES primarily from
the regimental fund of the army and primarily for the purpose of
providing better educational avenues to the wards of army/ex-army
personnel and war widows. The circumstances which put such
candidates to some amount of disadvantage when compared to the
general category candidates has been elaborately set out by the
respondent institute in its counter affidavit and has also been
extracted in the earlier part in this judgment. It is also not disputed
that the wards of army/ex-army personnel and war widows do
constitute a definite class which is entitled to grant of reservation in
educational institutions.
41. Section 6 of the Guru Gobind Singh Indrapratha University
Act 1998 permits the University to make such provisions for the
appointment or admission of, inter alia, persons belonging to the
weaker sections of the society. Under the 1998 Act, "Government"
means the Lieutenant Governor of Delhi. The Lieutenant Governor of
Delhi is also the Chancellor of the Respondent University. The
Chancellor has to right to cause an enquiry "in respect of any matter
connected with the administration or finances of the University,
college or institution" and, eventually to issue directions, which the
Board of Management of the Respondent University is bound to
comply with. Section 39 of the 1998 Act enables the Government to
remove difficulties in giving effect to the provisions of the said Act by
issuing orders, published in the Official Gazette, making provisions
not consistent with the provisions of the said Act. The impugned
notification, also issued by the Lieutenant Governor of NCT of Delhi,
in my view can be read as one such order made in respect of ACMS a
College affiliated to the Respondent University.
42. The Supreme Court in M.R. Balaji v. State of Mysore
1963 SC 649 has held that reservations upto 50% are permissible.
The Supreme Court in Islamic Academy of Education (supra) in
para 175 while dealing with para 68 of the decision in T.M.A. Pai
Foundation (supra) held that the expression "a certain percentage of
seats" used in relation to the management quota in a non-minority
unaided professional institution could be more than 90% in a given
case, but may be less than 50% in another case. Different
percentages must be worked out in terms of the need of the
institution. The need of the respondent ACMS to reserve a high
percentage of the seats for the wards of army/ex-army personnel and
war widows has been sufficiently explained. Under the scheme
evolved by the Delhi Act No.80 of 2007, the management is entitled to
10% seats. Another 15% seats of the remaining 90% seats, can be
allocated by the Government under Section 12(1)(b). This translates
to 13.5 out of 100 seats and would be rounded off to 14 seats out of
100 seats. An additional 5% seats are, in any event, reserved for the
wards of armed forces in exercise of powers conferred under Section
12(2)(c) under the Rules. All this put together translates to
50+10+14+5 = 79 seats out of 100 seats. In my view reservation of
79 out of 100 seats for wards of army/ex-army personnel and war
widows would serve the purpose for which ACMS has been set up by
AWES. The remaining 21 seats in my view ought to be thrown upon
to all other candidates to be filled up strictly on the basis of merit
determined by reference to the ranking in the CET conducted by
respondent University. These 21 seats being open general category
seats, would be available to all candidates, including the wards of
Army/Ex-Army personnel and war widows. If, on account of their
higher merit in the CET, they are able to bag some of these seats, it
would not affect the number of reserved seats for the wards of
Army/Ex-Army personnel and war widows.
43. I am also of the view that it would be in the larger interest of
ACMS as well as the candidates who are admitted to the institute
from amongst the wards of army/ex-army personnel and war widows,
if a fraction of the students are admitted on the basis of merit alone.
It is well known that meritorious students in any institution lend
credibility to the institution. When they pass out, they act as the
ambassadors of their Alma Mater. They lead to enhancement of the
reputation of the institution. While studying at the institution, they
also inspire their classmates/batchmates to perform better. Other
students often derive personal guidance and help from the more
meritorious students which, sometimes, they are not able to receive
even from their instructors. The more meritorious students expose
the others to better techniques of learning and infuse a sense of
comfort and confidence in their other classmates. They also generate
healthy competition, which also invariably leads to achievement of
higher efficiency, knowledge and expertise amongst other co-
students. It is well known that leading Universities and Institutes the
World over invite students with proven merit to study at their faculties
and even offer scholarships and other benefits to them as incentives.
This is primarily done to get the cream of students precisely for the
reasons indicated above.
44. The submission of learned counsel for the ACMS is that the
AWES is investing its regimental funds and the army is providing the
facility of its Base Hospital. These contributions have been made by
the AWES, the Government and the Army for the wards of defence
personnel, and not for subsidizing medical education for the general
category students. It being a welfare measure, the respondent
institute is not charging fee like other private institutes from its
students. In my view, the general category candidates, who may be
granted admission to ACMS, are not entitled to any concessional fee
that ACMS may recover from other candidates, who are wards of
army/ex-army personnel and war widows. Such students should be
required to pay the fee that may be fixed by ACMS/AWES in
accordance with the provisions of the Delhi Act No.80 of 2007.
45. It is not disputed by the respondents that a very large
number of seats in the respondent college have remained unfilled
since very few candidates who are wards of defence personnel have
qualified for admission to the respondent college in the current
academic session. It is also not disputed that several of the
petitioners in this batch of writ petitions have, in fact, secured higher
merit in the CET conducted by the respondent University than those
who have been granted admission being wards of army/ex-army
personnel and war widows. Since a large number of seats are still
available to be filled in the respondent college, the respondent college
may, without conceding a higher percentage of seats for general
category candidates than 21 out of 100, consider filling up the
remaining seats in this particular academic session 2008-09 from
amongst general category candidates on the basis of merit. However,
on this aspect, I leave the decision entirely in the hands of the
respondent institute. The aforesaid suggestion has been made by me
considering the fact that every such seat is highly precious since a
large number of meritorious candidates are desirous of, and waiting
to get admission. Each such seat is a national asset and it would be
desirable not to let the same go to waste. A seat left unfilled in any
academic session remains vacant till the end of the course and the
period of the MBBS Course is nearly 5 years.
46. I, accordingly, allow this batch of writ petitions and hold
that the reservation/allocation of seats for the wards of army/ex-army
personnel and war widows in ACMS could be to the extent of 79 out of
100 seats and the remaining 21 seats should be filled by the general
category candidates on the basis of merit in the CET 2008. I,
therefore, direct the respondents to insert prominent public notices in
national dailies published from Delhi on 27.9.2008 and 28.9.2008,
inviting candidates who have successfully cleared the CET 2008 to
report for a special counseling to be held on 29.09.2008 from 10:00
a.m. onwards at the ACMS, Delhi Cantonment. The candidates should
be required to report for counseling with the necessary documents.
The list of all those candidates who report upto 4 p.m. be compiled in
the order of merit and displayed by the respondents at ACMS and on
the notice board of the respondent University on 30.9.2008 at 09:00
a.m. On 30.9.2008, the respondent ACMS should accept the fee and
grant admissions to the candidates as per merit. Since the time is
extremely short, in view of the decision of the Supreme Court in
Mridul Dhar & Anr.V. Union of India & Ors., (2005) 2 SCC 65, the
respondents may provisionally accept attested copies of the mark
sheets and other documents and grant provisional admissions to the
candidates, subject to their producing the original documents by
30.10.2008.
47. With these directions the petitions stand disposed off. A
copy of this judgment be given to the parties Dasti today itself.
(VIPIN SANGHI)
JUDGE
September 26, 2008
as/aj/rsk
