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HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE M.GANGA RAO
Writ Petition No.21836 of 2017
04-10-2017
A.Sateesh Reddy and others ... Petitioners
The Rajiv Gandhi University of Knowledge Technologies and others .. Respondents
Counsel for the petitioners : Sri P.Veerabhadra Reddy
Counsel for respondent No.1: Ms.M.Vidyavathi, Standing Counsel
Counsel for respondent No.2: GP for Higher Education
Counsel for respondent No.3: GP for General Administration
<GIST:
>HEAD NOTE:
? Citations:
1. 2010 SCC Online AP 1167
2. (2016) 2 SCC 328
3. (2003) 7 SCC 83
4. (1975) 1 SCC 267
5. (2012) 8 SCC 203
6. (2016) 9 SCC 749
7. AIR 2007 SC 1524
8. (1994) 4 SCC 401
9. AIR 1993 SC 477
10. (1968) 3 SCR 595 : AIR 1968 SC 1379
11.SLP No.2656/2011 dated 07.02.2011
THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.GANGA RAO
Writ Petition No.21836 of 2017
ORDER: {Per the Honble the Acting Chief Justice Ramesh Ranganathan}
Six students, who were denied admission, have invoked the
jurisdiction of this Court seeking admission into the six year
integrated B.Tech programme in IIITs for the academic year 2017-
18 on the basis of the GPA score secured by them in the 2017 SCC
examinations. They have sought a writ of Mandamus to declare
Statute 13(3) made under the Rajiv Gandhi University of
Knowledge Technologies Act, 2008 (for short the Act), and the
procedure prescribed by the respondents for selection of candidates
for admission into the six year integrated B-Tech programme for
the academic year 2017-18, as illegal, contrary to the provisions of
the Presidential Order, and in violation of Articles 14, 15 and
371(D) of the Constitution of India, and to strike down the same.
The respondent-University (Rajiv Gandhi University of
Knowledge Technologies) hitherto framed Statute 13(3) under the
Act whereby a rural unit of a mandal was stipulated as a local unit
of reservation in respect of a local candidate. The eligibility criteria,
prescribed in the then Statute 13, required the institute to be fully
residential, and to be primarily catering to the educational needs of
the meritorious rural youth of Andhra Pradesh. The admission
process was to be on a local basis with a rural mandal as a unit,
allowing for established reservation norms. Merit, among the
applicants, was to be determined on the basis of the marks secured
by them in the Secondary School Certificate (10th standard)
examination. Questioning the validity of Statute 13(3) of the Act,
two students had invoked the jurisdiction of this Court and a
Division Bench, by its order in Mudavathu Nagraju vs. The
Government of Andhra Pradesh , struck down Statute 13(3) as
violative of the Presidential Order, made under Article 371-D of the
Constitution of India, as it did not accommodate the States power
to identify or specify a mandal or a rural mandal as a distinct local
area; the specification in Statute 13(3) of a rural mandal, as the
unit for determination presumptively of a local candidate, was in
transgression of the contours of the expression local candidate
and local area clearly and unambiguously specified and defined in
the Presidential Order; and as the State had neither the legislative
nor the complementary executive power to enact a law nor to issue
orders or other instruments as to have the effect of transgressing
the provisions of the Presidential Order, and since the provisions of
Statute 13(3) clearly transgressed the provisions of the Presidential
Order, Statute 13 was incompetent and ab inito void.
On the earlier Statute 13(3) being struck down by this Court,
the respondent-university amended Statute 13. Statute 13(3), after
its amendment, reads thus:
Admission to the six year integrated engineering course shall be based on the
10th class marks of each applicant. A deprivation score, as prescribed by
Government from time to time in terms of percentage marks, may be added to the
10th class marks of the applicants from the non-residential government schools,
including zilla parishad and municipal schools, with the objective of providing
weightage to the socio economically challenged students.
The incentive/concession, of a deprivation score being added
to the 10th class marks of any applicant who studied in (i) non-
residential government schools (ii) zilla parishad schools, and (iii)
municipal schools, is said to have been extended with the objective
of providing weightage to the socio-economically challenged students.
In effect a candidate who secured a score of 9.9 in the 10th class
examination, having studied either in a residential government
school or in an aided or unaided private school, would have to yield
place to a candidate, who despite having secured a lower GPA score
of 9.6 in the 10th class examination would, by the fortuitous
circumstance of his having studied in a non-residential
government/zilla parishad/municipal school, now secure a score of
10 as the deprivation score of 0.4 would, because of Statute 13(3),
be added to his 10th Class GPA score.
Sri P.Veerabhadra Reddy, learned counsel for the petitioners,
would submit that Statute 13(3) violates Articles 14, 15 and 371-D
of the Constitution of India; classification of students between
those who passed out from residential government schools, aided
and unaided private schools on the one hand, and those who
passed out from non-residential government, zilla parishad and
municipal schools on the other, violates the equality clauses in
Articles 14 and 15(1) of the Constitution of India; and such a
classification has no nexus to the object sought to be achieved
which, as stated in the counter-affidavit, is to encourage students,
who studied in non-residential government/zilla parishad/
municipal schools, to secure admission in the six year integrated
engineering course offered by the respondent-university, and to
provide concessions to the socio-economically challenged students,
which is impermissible under the Constitution of India. Learned
counsel would rely on Mudavathu Nagraju1 and Sandeep vs.
Union of India in this regard.
On the other hand Ms.M.Vidyavathi, learned Standing
Counsel for the respondent-university, would submit that the
concession extended by the respondent-university cannot be
equated to reservation provided in favour of the socially and
educationally backward classes; the respondent-university is
providing reservation of 50% of the total number of available seats
in favour of the Scheduled Castes, the Scheduled Tribes, and the
other Backward Classes; Statute 13(3) was made only after a
detailed and scientific study of the data collected from the year
2011 onwards regarding the category of students who were able to
secure admission into the six year integrated engineering course;
an analysis of the data revealed that students, from non-residential
government/zilla parishad and municipal schools, were unable to
compete with students from residential government schools, aided
and unaided private schools; the preamble to the Act shows that
the University was constituted to provide an opportunity for rural
students who are economically inadequate compared to their urban
counterparts; the concession in Statute 13(3) was prescribed only
to enable such students to secure admission into the six year
integrated engineering course; the respondent-university has not
violated the Presidential Order; local area reservation of 85% of the
available seats, as stipulated in the Presidential Order, is being
provided to students from the S.V. University area within whose
jurisdiction the respondent-University falls; the remaining 15%
seats are left open for students both from the States of Andhra
Pradesh and Telangana; this concession, prescribed in Statute
13(3), is being extended to students, in addition to the reservation
provided in favour of the socially and educationally backward
classes (SC, ST and OBC); and Statute 13(3) does not fall foul of
Articles 14, 15 and 371-D of the Constitution of India or the
Presidential Order made thereunder. Learned counsel would rely
on State of M.P vs. Gopal D.Tirthani , State of Uttar Pradesh vs.
Pradip Tandon , Satyabrata Sahoo vs. State of Orissa , State of
Uttar Pradesh vs. Dinesh Singh Chauhan and Neeraj Kumar
Sainy vs. State of U.P .
Just as Article 14 permits classification, so does Article 15(1)
which is but a facet of the rule of equality in Article 14. Article
15(4) of the Constitution of India enables a State to make special
provisions for the advancement of any socially and educationally
backward classes of citizens or for the scheduled castes and the
scheduled tribes. For bringing about and ensuring equality,
appropriate measures, including reservations, can be adopted.
What kind of special provision should be made in favour of a
particular class is a matter for the State to decide having regard to
the facts and circumstances of a given situation. (Ajay Kumar
Singh v. State of Bihar ; Indra Sawhney v. Union of India ). The
word "any", and the associated word special provisions must be given
their due meaning. (Indra Sawhney9). The words any special
provision in Article 15(4) are of wide amplitude (Ajay Kumar
Singh8), and are not mere surplusage. (Indra Sawhney9).
Reservations can take various forms. They may consist of
preferences, concessions, exemptions, extra facilities etc or of an
exclusive quota. Reservation is the highest form of special
provision, while preference, concession and exemption are lesser
forms. The larger concept of reservation takes within its sweep all
supplemental and ancillary provisions as also lesser types of
special provisions. Concessions, exemptions and other measures
are supplementary, incidental and ancillary provisions made with a
view to make the main provision of reservation effective i.e to
ensure that the members of the reserved class fully avail of the
provision for reservation in their favour. There is no reason why
such special provisions should not be held to be included within
the larger concept of reservation. (Indra Sawhney9).
When measures, other than an exclusive quota, are adopted,
they form part of the reservation measures or are ancillary to or
necessary for availing the reservations. Whatever the form of
reservation, the backward classes have to look for them to Article
15(4). (Indra Sawhney9). Where the State finds it necessary - for
the purpose of giving full effect to the provision of reservation to
provide certain exemptions, concessions or preferences to the
members of backward classes, it can extend the same under Clause
(4). All supplemental and ancillary provisions to ensure full
availment of the provisions for reservation can be provided as part
of the concept of reservation itself. Similarly, in a given situation,
the State may think that, in the case of a particular backward
class, it is not necessary to provide reservation, and it would be
sufficient if a certain preference or a concession is provided in their
favour. This can be done under Clause (4). (Indra Sawhney9).
The socially and educationally backward classes, having
been classified by the Constitution itself as a class deserving
special treatment, and the Constitution having itself specified the
nature of special treatment, it should be presumed that no further
classification or special treatment is permissible in their favour
apart from or outside of clause (4). (Indra Sawhney9). The
submission of Ms. M. Vidyavathi, learned Standing Counsel, that
Statute 13(3) of the Act does not provide for reservation but only
extends certain incentives/concessions for students, who had
passed their 10th class examination from non-residential
government/ zilla parishad/ municipal schools in the State, is of
no avail as incentives/concessions are ancillary to reservation, and
can only be provided if they fall within the ambit of Article 15(4) of
the Constitution.
Let us now refer to the judgments which Ms. M. Vidyavathi,
Learned Standing Counsel for the respondent-university, has relied
upon. In Pradip Tandon4, certain colleges in Uttar Pradesh, under
the Meerut University, had reserved seats in medical courses for
students from rural areas, for students from hill areas, and for
students from the Uttarakhand area, besides providing reservation
for the Scheduled Castes, the Scheduled Tribes etc. The
reservation, provided in favour of students from rural, hill and
Uttarakhand areas, was subjected to challenge as being
unconstitutional. Before the Supreme Court, it was contended
that rural India was socially and educationally backward because
of poverty; rural people had common traits of agriculture, and they
were conditioned by economic poverty; and the State was obligated
to promote, with special care, the educational and economic
interests of the weaker sections of the people. It is in this context
that the Supreme Court observed:-
Article 15(4) speaks of socially and educationally backward
classes of citizens. The State described the rural, hill and Uttrakhand areas
as socially and educationally backward areas. The Constitution does not
enable the State to bring socially and educationally backward areas within
the protection of Article 15(4). The Attorney General however submitted that
the affidavit evidence established the rural, hill and Uttrakhand areas to have
socially and educationally backward classes of citizens. The backwardness
contemplated under Article 15(4) is both social and educational. Article 15(4)
speaks of backwardness of classes of citizens. The accent is on classes of citizens.
Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore,
socially and educationally backward classes of citizens in Article 15(4) could not
be equated with castes. In M. R. Balaji & Ors. v. State of Mysore [1963] Supp. 1
S.C.R. 439 and State of Andhra Pradesh & Anr. v. P. Sagar [1968] 3 S.C.R. 595
this Court held that classification of backwardness on the basis of castes would
violate both Articles 15(1) and 15(4).
The expression "socially and educationally backward classes" in Article
15(4) was explained in Balaji's case (supra) to be comparable to Scheduled
Castes and Scheduled Tribes. The reason is that the Scheduled Castes and
Scheduled Tribes illustrated social and educational backwardness. It is difficult
to define the expression "socially and educationally backward classes of
citizens". The traditional unchanging occupations of citizens may continue
to social and educational backwardness. The place of habitation and its
environment is also a determining factor in judging the social and
educational backwardness.
The expression "classes of citizens" indicates a homogeneous section
of the people who are grouped together because of certain likeliness and
common traits and who are identifiable by some common attributes. The
homogeneity of the class of citizens is social and educational backwardness.
Neither caste nor religion nor place of birth will be the uniform element of
common attributes to make them a class of citizens.
The traits of social backwardness are these. There is no social
structure. There is no social hierarchy. There are no means of controlling
the environment through technology. There is no organization of the
society to create inducements for uplift of the people and improvement of
economy. Building of towns and industries, growth of cash economy which
are responsible for greater social wealth are absent among such classes.
Social growth and well being can be satisfied by massive change in resource
conditions. High lands 'and hills are to be developed in fiscal values and natural
resources. Nature is a treasury. Forests, mountains, rivers can yield an
advanced society with the aid of education and technology.
The hill and Uttrakhand areas in Uttar Pradesh are instance of socially
and educationally backward classes of citizens for these reasons. Backwardness
is judged by economic basis that each region has its own measurable possibilities
for the maintenance of human numbers, standards of living and fixed property.
From an economic point of view the classes of citizens are backward when
they do not make effective use of resources. When large areas of land
maintain a sparse, disorderly and illiterate population whose property is
small and negligible the element of social backwardness is observed. When
effective territorial specialisation is not possible in the absence of means of
communication and technical processes as in the hill and Uttrakhand areas
the people are socially backward classes of citizens. Neglected opportunities
and people in remote places raise walls of social backwardness of people.
Educational backwardness is ascertained with reference to these
factors. Where people have traditional apathy for education on account of
social and environmental conditions or occupational handicaps, it is an
illustration of educational backwardness. The hill and Uttrakhand areas are
inaccessible. There is lack of educational institutions and educational aids.
People in the hill and Uttrakhand areas illustrate the educationally
backward classes of citizens because lack of educational facilities keep
them stagnant and they have neither meaning and values nor awareness for
education.
The 1971 Census showed population in India to be 54.79 crores. 32-89
crores or 80.1 per cent live in rural areas. 10.91 crores or 43.9 per cent live in
cities and towns. In 1921 the rural population in India was 88.8 per cent. In 1971
the rural population was reduced to 80.7 per cent. The rural population of Uttar
Pradesh in 1971 was roughly seven and a half crores. The population in
Uttrakhand was roughly seven and a half lakhs. The population of Hill areas in
Uttar Pradesh was near about twenty-five lakhs. It is in- comprehensible as to
how 80.1 per cent of the people in rural areas or 7 crores in rural parts of
Uttar Pradesh can be suggested to be socially backward because of poverty.
Further, it is also not possible to predicate poverty as the common trait of
rural people. This Court in J. P. Parimoo v. State of Jammu & Kashmir [1973]
3 S.C.R. 236 said that if poverty is the exclusive test a large population in
our country would be socially and educationally backward class of citizens.
Poverty is evident everywhere and perhaps more so in educationally
advanced and socially affluent classes. A division between the population of
our country on the ground of poverty that the people in the urban areas are
not poor and that the people in the rural areas are poor is neither supported
by facts nor by a division between the urban people on the one hand and the
rural people on the other that the rural people are socially and educationally
backward class.
Some people in the rural areas may be educationally backward, some
may be socially backward, there may be few who are both socially and
educationally backward, but it cannot be said that all citizens residing in
rural areas are socially and educationally backward.
On behalf of the State it is said that it is necessary to have reservation of
seats for the people from rural areas in order to attract people from those areas
who are otherwise handicapped in the matter of education, so that they can serve
the people in the rural areas on completion of their medical education. In order to
attract medical men for service in rural areas arrangements are to be made to
attract them. The special need for medical men in rural areas will not make
the people in the rural areas socially and educationally backward classes of
citizens (emphasis supplied).
As held in Pradip Tandon4, the Constitution does not enable
the State to bring socially and educationally backward areas within the
protection of Article 15(4). While the backwardness contemplated
is both social and educational, the accent under Article 15(4) is on
classes of citizens and not on areas or places. The "socially and
educationally backward classes" in Article 15(4) are those comparable to
the Scheduled Castes and the Scheduled Tribes as they illustrate
social and educational backwardness. The expression "classes of
citizens" indicates a homogeneous section of the people who are
grouped together because of certain likeliness and common traits,
and who are identifiable by some common attributes. The
homogeneity of the class of citizens is social and educational
backwardness. The traits of social backwardness are that there is
no social structure, there is no social hierarchy, and there is no
organization of the society to create inducements for upliftment of
the people and improvement of the economy. Where people have
traditional apathy for education, on account of social and
environmental conditions or occupational handicaps, it is an
illustration of educational backwardness.
The premise on which Statute 13(3) is based, that students
studying in non-residential government/zilla parishad/municipal
schools are socio-economically challenged is flawed. When a
question arises, whether a law, which prima facie infringes a
guaranteed fundamental right under Article 15(1), is protected by
Article 15(4), the validity of that law has to be determined by
Courts on the material placed before it. (State of A.P. v. P.
Sagar ). The test of the validity of a law, alleged to infringe the
fundamental rights of a citizen or any act done in execution of that
law, lies not in the belief of the maker of the law or of the person
executing the law, but in the demonstration by evidence before
Courts that the guaranteed right is not infringed. (P. Sagar10).
In its counter-affidavit, the respondent-University states that
it found students from non-residential government/zilla parishad/
municipal schools to be backward on the ground of socio-economic
backwardness; the respondent-University had taken into
consideration the social background of the students whoever
prosecuted their education in non-residential government schools
including Zilla Parishad/Municipal Schools etc, and had therefore
added a deprivation score of upto 0.4 to the GPA of the students;
and this was done with the object of providing weightage to these
deprived classes of students, who were socio-economically
challenged. No material has been placed by the respondents before
this Court to show that all students who are studying in non-
residential government/zilla parishad/municipal schools form a
homogeneous class grouped together because of certain likeliness
and common traits, and who are identifiable by some common
attributes. Neither is every student, who studies in such schools,
socially backward nor is there any basis for the respondents to
conclude that students, studying in such schools, are all
economically backward.
The object of Statute 13(3), as has been explicitly stated
therein, is to provide weightage to the socio-economically challenged
students. While the expression socio-economically challenged is
ambiguous, the State cannot merely, by adding the word socio to
the words economically challenged, provide reservation or make
special provisions in the form of concessions/incentives for the
economically backward sections of society, as what is permitted by
Article 15(4) of the Constitution of India is for the State to make
special provisions for the advancement of only the socially and
educationally backward classes, the scheduled castes and the scheduled tribes
and not any other class of citizens even if they be economically
backward. While economic backwardness cannot form the basis of
concessions or reservations under Article 15(4), the presumption
by the State that all the students, studying in such schools, are
economically backward is also not based on any verifiable data.
A contention, more or less identical to the one raised before
us, (that the number of marks obtained by candidates from non-
residential government/zilla parisahad/municipal schools showed
that they lagged behind in their ability to secure more marks vis--
vis students studying in residential government schools and
private aided and unaided schools) was also urged in Pradip
Tandon4, and the Supreme Court observed:
It was said that the number of marks obtained by candidates from rural
areas showed that they were much lower than the marks obtained by
general candidates and this would indicate educational backwardness. That
is neither a valid nor a justifiable ground for determining social and
educational backwardness. Educational institutions should attract the best
talents. It has been held by this Court in Balaij's case (supra) that 50 per cent of
the seats in educational institutions should be left open to general competition.
in the present case, it appears that 85 candidates from rural areas were selected
in the general seats. One candidate from Uttrakhand area, 7 candidates from hill
areas and one Scheduled Caste candidate also completed for the general seats.
The candidates from hill areas, Uttrakhand Division and Scheduled Castes are
exceptions and their performance will not detract from the reservations for
Scheduled Caste, bill and Uttrakhand areas. The performance of 85 candidates
from rural areas speaks eloquently for the high standards of education in rural
areas.
The reservation for rural areas cannot be sustained on the ground
that the rural areas represent socially and educationally backward classes of
citizens. This reservation appears to be made for the majority population of
the State. 80 per cent of the population of the State cannot be a
homogeneous class. Poverty in rural areas cannot be the basis of
classification to support reservation for rural areas. Poverty is found in all
parts of India. In the instructions for reservation of seats it is provided that in
the application form a candidate for reserved seats from rural areas must submit
a certificate of the District Magistrate of the District to which he belonged that be
was born in rural area and had a permanent home there, and is residing there or
that he was born in India and his parents and guardians are still living there
and earn their livelihood there. The incident of birth in rural areas is made the
basic qualification. No reservation can be made on the basis of place of birth, as
this would offend Article.
The onus of proof is on the State to establish that the reservations
are for socially and educationally backward classes of citizens. The State has
established that the people in hill and Uttrakhand areas are socially and
educationally backward classes of citizens.. (emphasis supplied).
As held in Pradip Tandon4, it is not possible to predicate
poverty as the common trait of rural people. If poverty was the
exclusive test, a large population in our country would be socially
and educationally backward class of citizens. Poverty is evident
everywhere, and perhaps more so in educationally advanced and
socially affluent classes. A division between the population of our
country on the ground of poverty, that people in urban areas are
not poor and those in rural areas are poor, is neither supported by
facts, nor by a division between urban people on the one hand and
rural people on the other that all rural people are socially and
educationally backward. Some people in rural areas may be
educationally backward, some may be socially backward, there
may be a few who are both socially and educationally backward,
but it cannot be said that all citizens, residing in rural areas, are
socially and educationally backward.
Reservation, concessions and incentives for students who
passed out from schools in rural areas cannot, therefore, be
sustained on the ground that rural areas in its entirety, represent
the socially and educationally backward classes of citizens. This
concession cannot be extended to a majority population of the
State which is poor, as it is not a homogeneous class. Poverty, in
rural areas, cannot form the basis of classification to support
reservation for rural areas as and poverty is found in all parts of
India. The premise that students, studying in non-residential
government/zilla parishad/municipal schools, suffer from poverty,
and are therefore economically backward, cannot also form the
basis of a classification to bring the concessions extended to them
within the ambit of Article 15(4) of the Constitution of India.
As held in Pradip Tandon4, the contention that the number
of marks, obtained by candidates from rural areas, showed that
they were much lower than the marks obtained by general
candidates, and this indicated educational backwardness, is
neither a valid nor a justifiable ground for determining social and
educational backwardness. Educational institutions should attract
the best talents. It is evident, therefore, that lower marks being
secured by students, who passed 10th class from non-residential
government/zilla parishad/ municipal schools, is neither a valid
nor a justifiable basis for determining the social and educational
backwardness of a class of citizens.
Article 15(4) of the Constitution of India is not restricted to
reservation alone, but enables the State to make special provisions
for the advancement of the socially and educationally backward
classes, the Scheduled Castes and Scheduled Tribes. The special
provisions which the State may make, for these specified
categories, would include providing them concessions and
incentives, such as the incentive provided in the present case of
adding a deprivation score to their GPA. Such
concessions/incentives would be saved from the vice of
discrimination, and violation of Article 15(1), only if they fall within
the ambit of Article 15(4), and such concessions/incentives are
provided only to socially and educationally backward classes, the
Scheduled Castes and the Scheduled Tribes and not, as Statute
13(3) would stipulate, to the socio-economically challenged students.
Article 15(4) does not enable the State, or its instrumentalities, to
provide such concessions/incentives to the economically backward
classes of citizens.
The concession/incentive, as stipulated in Statute 13(3), is
made available to all students who passed their 10th Class from
non-residential government/zilla parishad/Municipal schools,
which would, undoubtedly, include students from the open
category also. Students, who passed their 10th Class from such
schools, are not confined only to the socially and educationally
backward classes or to the Scheduled Castes and the Scheduled
Tribes, but would also include the affluent and those who, though
economically backward, are from the socially and educationally
advanced sections of society. Reliance placed by Ms.M.Vidyavathi,
on Pradip Tandon4, is therefore misplaced.
In Gopal D.Tirthani3, a provision giving weightage of marks
to rural services, and for holding a separate eligibility test for
determining the merit of in-service candidates for admission to
post-graduate medical courses, as distinguished from open
category candidates, was under challenge. It is in this context that
the Supreme Court observed:
.To withstand the test of reasonable classification within the
meaning of Article 14 of the Constitution, it is well settled that the
classification must satisfy the twin tests: (i) it must be founded on an
intelligible deferential which distinguishes persons or things placed in a
group from those left out or placed not in the group, and (ii) the defferentia
must have a rational relation with the object sought to be achieved. It is
impermissible to use territories or the nature of the objects or occupations
or the like as the basis for classification. So long as there is a nexus
between the basis of classification and the object sought to be achieved, the
classification is valid. We have, in the earlier part of the judgment, noted the
relevant statistics as made available to us by the learned Advocate-General
under instructions from Dr Ashok Sharma, Director (Medical Services), Madhya
Pradesh, present in the Court. The rural health services (if it is an appropriate
expression) need to be strengthened. 229 community health centres (CHCs) and
169 first-referral units (FRUs) need to be manned by specialists and block
medical officers who must be postgraduates. There is nothing wrong in the
State Government setting apart a definite percentage of educational seats
at post graduation level consisting of degree and diploma courses
exclusively for the in-service candidates. To the extent of the seats so set
apart, there is a separate and exclusive source of entry or channel for
admission. It is not reservation. In-service candidates, and the candidates
not in the service of the State Government, are two classes based on an
intelligible differentia. There is a laudable purpose sought to be achieved.
In-service candidates, on attaining higher academic achievements, would
be available to be posted in rural areas by the State Government. It is not
that an in-service candidate would leave the service merely on account of
having secured a postgraduate degree or diploma though secured by virtue
of being in the service of the State Government. If there is any
misapprehension, the same is allayed by the State Government obtaining a
bond from such candidates as a condition precedent to their taking
admission that after completing PG degree/diploma course they would serve
the State Government for another five years. Additionally, a bank guarantee
of rupees there lakhs is required to be submitted along with the bond. There
is, thus, clearly a perceptible reasonable nexus between the classification
and the object sought to be achieved (emphasis supplied)
To satisfy the test of a reasonable classification, within the
meaning of Article 14 of the Constitution, the classification must
fulfil twin tests i.e., (i) it must be founded on an intelligible
deferentia which distinguishes persons or things placed in a group,
from those left out or placed outside the group, and (ii) the
differentia must have a rational relation to the object sought to be
achieved. As long as there is a reasonable nexus between the basis
of classification, and the object sought to be achieved, the
classification is valid. It is impermissible to use territories or the
nature of objects or occupations or the like as the basis for
classification (Gopal D.Tirthani3).
While classification of students, studying in non-residential
government/ zilla parishad/municipal schools, may be founded on
an intelligible differentia, as students from these schools are
distinguishable from those studying in other schools, such a
classification would be held to satisfy the test of Article 14 only if
this differentia has a reasonable nexus to the object sought to be
achieved, and such an object is legal and valid.
The object which the respondent-university seeks to achieve,
as stated by them in their counter affidavit, is that students, who
studied in non-residential government/zilla parishad/Municipal
schools, were not reaching the expected Grade Point Average for
securing admissions into IIIT for the 6 Year Integrated Course.
This concession/incentive, of adding a deprivation score of 0.4 to
the GPA, is in addition to the reservations provided in favour of the
socially and educationally backward classes. In its counter-
affidavit, the respondent-university has stated that the rule of
reservation, fixed by the State Government, is being strictly
followed, which is 15% for the SC category, 6% for the ST category,
7% for the BC-A category, 10% for the BC-B category, 1% for the
BC-C category, 7% for the BC-D category and 4% for the BC-E
category.
The concession, of giving weightage of a maximum
deprivation score of 0.4, is extended to students from non-
residential government/zilla parishad/municipal Schools on the
premise that all of them are socio-economically challenged, an
ambiguous expression which appears to presume, erroneously,
that the economically challenged are invariably socially challenged
also. The counter affidavit does not disclose the basis on which
the respondent-university has concluded that all students, from
these schools, are economically challenged. Even otherwise,
economic backwardness is not a valid ground for making special
provisions under, and extending incentives/concessions to the
economically challenged is not sanctioned by, Article 15 (4) of the
Constitution of India.
The concession of providing a deprivation score of a
maximum of 0.4, to students studying in non-residential
government/zilla parishad/municipal schools must fail, firstly
because there is no verifiable data to show that all the students
studying in such schools are socio-economically challenged which is
the object of Statute 13(3). Secondly, because this object, of
providing weightage to the socio-economically challenged students, is
not legally valid as concessions in favour of the economically
backward is not permissible under Article 15(4) of the Constitution
of India. Reliance placed on Gopal D.Tirthani3 is therefore
misplaced.
While establishing the University and Colleges in rural areas
would, undoubtedly, provide an opportunity for students from
rural areas to have greater access to the educational facilities
provided thereat, reservation/concession/incentive to students
from certain categories of schools alone, and denying such benefits
to students from other schools, does not have a rational nexus to a
permissible objective. Extension of such concessions to the socio-
economically challenged (whatever this expression means) would fall
foul of the equality clause in Article 15 (1) of the Constitution of
India, besides violating Article 14 of the Constitution of India as
neither does the classification have a rational nexus to the object
sought to be achieved nor is the avowed object permissible under
Article 15 of the Constitution. Statute 13(3) not only falls foul of
Article 15(4) of the Constitution, it also suffers from the vice of
discrimination and arbitrariness offending Articles 14 and 15(1)
thereof.
In Satyabrata Sahoo5, additional weightage of marks was
given to in-service candidates in the post-graduate medical
entrance examination, for having served in rural areas/tribal areas,
even for seats earmarked for the open category. In this context the
Supreme Court held:
..We have referred to the above mentioned judgments only to indicate the
fact that this Court in various judgments has acknowledged the fact that
weightage could be given for doctors who have rendered service in
rural/tribal areas but that weightage is available only in in-service category,
to which 50% seats for PG admission has already been earmarked. The
question is whether, on the strength of that weightage, can they encroach
upon the open category, i.e direct admission category. We are of the view
that such encroachment or inroad or appropriation of seats earmarked for
open category candidates (direct admission category) would definitely affect
the candidates who compete strictly on the basis of the merit.
The purpose and object for giving weightage to in-service candidates
who have rendered rural/tribal service is laudable and their interest has
been taken care of by the Medical Council of India as well as the prospectus
issued for admission to the various medical colleges in State of Odisha but
they have to come through the proper channel i.e. the channel exclusively
earmarked for in-service candidates and not through the channel earmarked
for candidates in the open category. The in-service candidates are also free
to compete through the open category just like any other who fall under that
category. Further, it is also relevant to note those who get admission in post
graduate courses through the open category have to execute a bond stating that
they would serve rural/tribal areas after completion of their post-graduation. In
fact, weightage is given to those candidates who have rendered service in
rural/tribal areas when they compete for admission to PG (Medical) Courses in
in-service category for whom 50% seats are earmarked (emphasis
supplied).
While weightage of marks given to in-service candidates was
held to satisfy the test of Article 14 of the Constitution of India as
long as it was confined to the quota prescribed for in-service
candidates alone, and did not encroach into the seats left open for
the open competition, the Supreme Court, in Satyabrata Sahoo5,
made it clear that such weightage, for in-service candidates, could
not be provided in seats under the open category.
In Dinesh Singh Chauhan6, the proviso to Regulation 9 (2)
(d) permitted weightage of marks for admission in post-graduate
medical courses, to be given as incentives to in-service candidates
for each year of service rendered by them in remote or difficult
areas upto a maximum of 30% marks. On the validity of this
Regulation being subjected to challenge, the Supreme Court
observed:
In the present case, we have held that providing 30% reservation
to in-service candidates in Post Graduate Degree Courses is not permissible. It
does not however, follow that giving weightage or incentive marks to in-service
candidates for Post Graduate Degree Courses entails in excessive or substantial
departure from the rule of merit and equality. For, Regulation 9 recognizes the
principle of giving weightage to in-service candidates while determining
their merit. In that sense, incentive marks given to in-service candidates is
in recognition of their service reckoned in remote and difficult areas of the
State, which marks are to be added to the marks obtained by them in the
NEET. Weightage or incentive marks specified in Regulation 9 are thus
linked to the marks obtained by the in-service candidate in the NEET and
reckon the commensurate experience and services rendered by them in
notified remote/difficult areas of the State. That is a legitimate and rational
basis to encourage the Medical Graduates/Doctors to offer their services
and expertise in remote or difficult areas of the State for some time.
Indisputably, there is a wide gap between the demand for basic health care
and commensurate medical facilities, because of the inertia amongst the
young doctors to go to such areas. Thus, giving specified incentive marks
(to eligible in-service candidates) is permissible differentiation whilst
determining their merit. It is an objective method of determining their
merit.
The imperative of giving some incentive marks to doctors working in
the State and more particularly serving in notified remote or difficult areas
over a period of time need not be underscored. For, the concentration of
doctors is in urban areas and the rural areas are neglected. Large number of
posts in Public Health Care Units in the State are lying vacant and unfilled
in spite of sincere effort of the State Government. This problem is faced by
all States across India. This Court in Dr.Snehelatas case (supra) had left it to
the Authorities to evolve norms regarding giving incentive marks to the in-service
candidates. The Medical Council of India is an expert body. Its assessment about
the method of determining merit of the competing candidates must be accepted
as final (State of Kerala V. T.P.Roshana[9]; also see MCI V. State Of
Karnataka[10]). After due deliberations and keeping in mind the past
experience, Medical Council of India has framed Regulations inter alia
providing for giving incentive marks to in-service candidates who have
worked in notified remote and difficult areas in the State to determine their
merit. The Regulation, as has been brought into force, after successive
amendments, is an attempt to undo the mischief. (emphasis supplied).
Weightage of marks to in-service candidates in admission to
post-graduate medical seats, for services rendered by them in rural
areas, was upheld by the Supreme Court in Dinesh Singh
Chauhan6, taking note of the fact that doctors were concentrated
mainly in urban areas, and rural areas were neglected; a large
number of posts in Public Health Care Units were lying vacant and
unfilled inspite of sincere efforts of the State Government; and
providing such incentives to in-service candidates, who served in
difficult areas, was justified.
Unlike in Dinesh Singh Chauhan6, where weightage of
marks given for service rendered in difficult areas was held to be
valid by the Supreme Court, in the present case the weightage of
marks, in the form of a maximum deprivation score of 0.4, is
extended to students who passed their 10th Class from non-
residential govt/zilla parishad/municipal schools on the erroneous
premise that all such students are from the socio-economically
backward category. While this premise is itself flawed, even if we
were to presume that it is not, the socio-economic backward class of
citizens are not among those specified classes in whose favour
alone special provisions can be made by the State or its
instrumentalities under Article 15 (4) of the Constitution of India.
As we are satisfied that Statute 13 (3) of the Act violates
Articles 14 and 15 of the Constitution of India, and is liable to be
struck down on this ground alone, it is wholly unnecessary for us
to examine the contention of Sri P. Veerabhadra Reddy, learned
counsel for the petitioner, that such concessions/incentives are
also contrary to the Presidential Order made under Article 371-D of
the Constitution. This question is left open to be considered, if
need be, in appropriate legal proceedings.
A feeble submission is made by Ms. M. Vidyavati, learned
Standing Counsel for the respondent-University, that this order
should be given prospective effect since admissions to the six year
Integrated Engineering Course has already been completed, and
classes have commenced; against the judgment of the Division
Bench of this Court, in Mudavathu Nagraju1, the respondent-
University had carried the matter in appeal; and the Supreme
Court had directed that the students, who were already admitted,
should not disturbed.
The order of the Supreme Court, in Dean Rajiv Gandhi
Univ. of Knowledge Tech v. Mudavathu Nagaraju , reads thus:
Issue Notice.
Interim stay of the applicability of the impugned order to admissions made
prior to the date of judgment of the High Court. However, the interim stay
will not affect the direction to admit the second respondent to the
engineering course and it is made clear that the direction for his
admission is not disturbed.
It is only students, who were admitted prior to the date of the
judgment, who were directed by the Supreme Court not to be
disturbed. We had by the order dated 14.07.2017, while issuing
notice before admission, directed the respondent-University to
reserve six seats, among the seats remaining unfilled as on the date
of the order, in the S.V. University local area. These six seats have,
admittedly, not been filled-up till date. As a consequence of our
order, declaring Statute 13(3) made under the Act ultra vires
Articles 14 and 15 of the Constitution of India, the respondent-
university shall consider all eligible candidates, strictly in the order
of their inter-se merit, for admission to the six un-filled seats in the
six year integrated engineering course. This exercise shall be
completed, and the selected students shall be admitted, within two
weeks from the date of receipt of a copy of this order.
The Writ Petition is allowed. Miscellaneous petitions
pending, if any, shall stand disposed of. There shall be no order as
to costs.
_________________________________
(RAMESH RANGANATHAN, ACJ)
____________________
(M.GANGA RAO, J)
4th October, 2017
HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE M.GANGA RAO
Writ Petition No.21836 of 2017
04-10-2017
A.Sateesh Reddy and others ... Petitioners
The Rajiv Gandhi University of Knowledge Technologies and others .. Respondents
Counsel for the petitioners : Sri P.Veerabhadra Reddy
Counsel for respondent No.1: Ms.M.Vidyavathi, Standing Counsel
Counsel for respondent No.2: GP for Higher Education
Counsel for respondent No.3: GP for General Administration
<GIST:
>HEAD NOTE:
? Citations:
1. 2010 SCC Online AP 1167
2. (2016) 2 SCC 328
3. (2003) 7 SCC 83
4. (1975) 1 SCC 267
5. (2012) 8 SCC 203
6. (2016) 9 SCC 749
7. AIR 2007 SC 1524
8. (1994) 4 SCC 401
9. AIR 1993 SC 477
10. (1968) 3 SCR 595 : AIR 1968 SC 1379
11.SLP No.2656/2011 dated 07.02.2011
THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.GANGA RAO
Writ Petition No.21836 of 2017
ORDER: {Per the Honble the Acting Chief Justice Ramesh Ranganathan}
Six students, who were denied admission, have invoked the
jurisdiction of this Court seeking admission into the six year
integrated B.Tech programme in IIITs for the academic year 2017-
18 on the basis of the GPA score secured by them in the 2017 SCC
examinations. They have sought a writ of Mandamus to declare
Statute 13(3) made under the Rajiv Gandhi University of
Knowledge Technologies Act, 2008 (for short the Act), and the
procedure prescribed by the respondents for selection of candidates
for admission into the six year integrated B-Tech programme for
the academic year 2017-18, as illegal, contrary to the provisions of
the Presidential Order, and in violation of Articles 14, 15 and
371(D) of the Constitution of India, and to strike down the same.
The respondent-University (Rajiv Gandhi University of
Knowledge Technologies) hitherto framed Statute 13(3) under the
Act whereby a rural unit of a mandal was stipulated as a local unit
of reservation in respect of a local candidate. The eligibility criteria,
prescribed in the then Statute 13, required the institute to be fully
residential, and to be primarily catering to the educational needs of
the meritorious rural youth of Andhra Pradesh. The admission
process was to be on a local basis with a rural mandal as a unit,
allowing for established reservation norms. Merit, among the
applicants, was to be determined on the basis of the marks secured
by them in the Secondary School Certificate (10th standard)
examination. Questioning the validity of Statute 13(3) of the Act,
two students had invoked the jurisdiction of this Court and a
Division Bench, by its order in Mudavathu Nagraju vs. The
Government of Andhra Pradesh , struck down Statute 13(3) as
violative of the Presidential Order, made under Article 371-D of the
Constitution of India, as it did not accommodate the States power
to identify or specify a mandal or a rural mandal as a distinct local
area; the specification in Statute 13(3) of a rural mandal, as the
unit for determination presumptively of a local candidate, was in
transgression of the contours of the expression local candidate
and local area clearly and unambiguously specified and defined in
the Presidential Order; and as the State had neither the legislative
nor the complementary executive power to enact a law nor to issue
orders or other instruments as to have the effect of transgressing
the provisions of the Presidential Order, and since the provisions of
Statute 13(3) clearly transgressed the provisions of the Presidential
Order, Statute 13 was incompetent and ab inito void.
On the earlier Statute 13(3) being struck down by this Court,
the respondent-university amended Statute 13. Statute 13(3), after
its amendment, reads thus:
Admission to the six year integrated engineering course shall be based on the
10th class marks of each applicant. A deprivation score, as prescribed by
Government from time to time in terms of percentage marks, may be added to the
10th class marks of the applicants from the non-residential government schools,
including zilla parishad and municipal schools, with the objective of providing
weightage to the socio economically challenged students.
The incentive/concession, of a deprivation score being added
to the 10th class marks of any applicant who studied in (i) non-
residential government schools (ii) zilla parishad schools, and (iii)
municipal schools, is said to have been extended with the objective
of providing weightage to the socio-economically challenged students.
In effect a candidate who secured a score of 9.9 in the 10th class
examination, having studied either in a residential government
school or in an aided or unaided private school, would have to yield
place to a candidate, who despite having secured a lower GPA score
of 9.6 in the 10th class examination would, by the fortuitous
circumstance of his having studied in a non-residential
government/zilla parishad/municipal school, now secure a score of
10 as the deprivation score of 0.4 would, because of Statute 13(3),
be added to his 10th Class GPA score.
Sri P.Veerabhadra Reddy, learned counsel for the petitioners,
would submit that Statute 13(3) violates Articles 14, 15 and 371-D
of the Constitution of India; classification of students between
those who passed out from residential government schools, aided
and unaided private schools on the one hand, and those who
passed out from non-residential government, zilla parishad and
municipal schools on the other, violates the equality clauses in
Articles 14 and 15(1) of the Constitution of India; and such a
classification has no nexus to the object sought to be achieved
which, as stated in the counter-affidavit, is to encourage students,
who studied in non-residential government/zilla parishad/
municipal schools, to secure admission in the six year integrated
engineering course offered by the respondent-university, and to
provide concessions to the socio-economically challenged students,
which is impermissible under the Constitution of India. Learned
counsel would rely on Mudavathu Nagraju1 and Sandeep vs.
Union of India in this regard.
On the other hand Ms.M.Vidyavathi, learned Standing
Counsel for the respondent-university, would submit that the
concession extended by the respondent-university cannot be
equated to reservation provided in favour of the socially and
educationally backward classes; the respondent-university is
providing reservation of 50% of the total number of available seats
in favour of the Scheduled Castes, the Scheduled Tribes, and the
other Backward Classes; Statute 13(3) was made only after a
detailed and scientific study of the data collected from the year
2011 onwards regarding the category of students who were able to
secure admission into the six year integrated engineering course;
an analysis of the data revealed that students, from non-residential
government/zilla parishad and municipal schools, were unable to
compete with students from residential government schools, aided
and unaided private schools; the preamble to the Act shows that
the University was constituted to provide an opportunity for rural
students who are economically inadequate compared to their urban
counterparts; the concession in Statute 13(3) was prescribed only
to enable such students to secure admission into the six year
integrated engineering course; the respondent-university has not
violated the Presidential Order; local area reservation of 85% of the
available seats, as stipulated in the Presidential Order, is being
provided to students from the S.V. University area within whose
jurisdiction the respondent-University falls; the remaining 15%
seats are left open for students both from the States of Andhra
Pradesh and Telangana; this concession, prescribed in Statute
13(3), is being extended to students, in addition to the reservation
provided in favour of the socially and educationally backward
classes (SC, ST and OBC); and Statute 13(3) does not fall foul of
Articles 14, 15 and 371-D of the Constitution of India or the
Presidential Order made thereunder. Learned counsel would rely
on State of M.P vs. Gopal D.Tirthani , State of Uttar Pradesh vs.
Pradip Tandon , Satyabrata Sahoo vs. State of Orissa , State of
Uttar Pradesh vs. Dinesh Singh Chauhan and Neeraj Kumar
Sainy vs. State of U.P .
Just as Article 14 permits classification, so does Article 15(1)
which is but a facet of the rule of equality in Article 14. Article
15(4) of the Constitution of India enables a State to make special
provisions for the advancement of any socially and educationally
backward classes of citizens or for the scheduled castes and the
scheduled tribes. For bringing about and ensuring equality,
appropriate measures, including reservations, can be adopted.
What kind of special provision should be made in favour of a
particular class is a matter for the State to decide having regard to
the facts and circumstances of a given situation. (Ajay Kumar
Singh v. State of Bihar ; Indra Sawhney v. Union of India ). The
word "any", and the associated word special provisions must be given
their due meaning. (Indra Sawhney9). The words any special
provision in Article 15(4) are of wide amplitude (Ajay Kumar
Singh8), and are not mere surplusage. (Indra Sawhney9).
Reservations can take various forms. They may consist of
preferences, concessions, exemptions, extra facilities etc or of an
exclusive quota. Reservation is the highest form of special
provision, while preference, concession and exemption are lesser
forms. The larger concept of reservation takes within its sweep all
supplemental and ancillary provisions as also lesser types of
special provisions. Concessions, exemptions and other measures
are supplementary, incidental and ancillary provisions made with a
view to make the main provision of reservation effective i.e to
ensure that the members of the reserved class fully avail of the
provision for reservation in their favour. There is no reason why
such special provisions should not be held to be included within
the larger concept of reservation. (Indra Sawhney9).
When measures, other than an exclusive quota, are adopted,
they form part of the reservation measures or are ancillary to or
necessary for availing the reservations. Whatever the form of
reservation, the backward classes have to look for them to Article
15(4). (Indra Sawhney9). Where the State finds it necessary - for
the purpose of giving full effect to the provision of reservation to
provide certain exemptions, concessions or preferences to the
members of backward classes, it can extend the same under Clause
(4). All supplemental and ancillary provisions to ensure full
availment of the provisions for reservation can be provided as part
of the concept of reservation itself. Similarly, in a given situation,
the State may think that, in the case of a particular backward
class, it is not necessary to provide reservation, and it would be
sufficient if a certain preference or a concession is provided in their
favour. This can be done under Clause (4). (Indra Sawhney9).
The socially and educationally backward classes, having
been classified by the Constitution itself as a class deserving
special treatment, and the Constitution having itself specified the
nature of special treatment, it should be presumed that no further
classification or special treatment is permissible in their favour
apart from or outside of clause (4). (Indra Sawhney9). The
submission of Ms. M. Vidyavathi, learned Standing Counsel, that
Statute 13(3) of the Act does not provide for reservation but only
extends certain incentives/concessions for students, who had
passed their 10th class examination from non-residential
government/ zilla parishad/ municipal schools in the State, is of
no avail as incentives/concessions are ancillary to reservation, and
can only be provided if they fall within the ambit of Article 15(4) of
the Constitution.
Let us now refer to the judgments which Ms. M. Vidyavathi,
Learned Standing Counsel for the respondent-university, has relied
upon. In Pradip Tandon4, certain colleges in Uttar Pradesh, under
the Meerut University, had reserved seats in medical courses for
students from rural areas, for students from hill areas, and for
students from the Uttarakhand area, besides providing reservation
for the Scheduled Castes, the Scheduled Tribes etc. The
reservation, provided in favour of students from rural, hill and
Uttarakhand areas, was subjected to challenge as being
unconstitutional. Before the Supreme Court, it was contended
that rural India was socially and educationally backward because
of poverty; rural people had common traits of agriculture, and they
were conditioned by economic poverty; and the State was obligated
to promote, with special care, the educational and economic
interests of the weaker sections of the people. It is in this context
that the Supreme Court observed:-
Article 15(4) speaks of socially and educationally backward
classes of citizens. The State described the rural, hill and Uttrakhand areas
as socially and educationally backward areas. The Constitution does not
enable the State to bring socially and educationally backward areas within
the protection of Article 15(4). The Attorney General however submitted that
the affidavit evidence established the rural, hill and Uttrakhand areas to have
socially and educationally backward classes of citizens. The backwardness
contemplated under Article 15(4) is both social and educational. Article 15(4)
speaks of backwardness of classes of citizens. The accent is on classes of citizens.
Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore,
socially and educationally backward classes of citizens in Article 15(4) could not
be equated with castes. In M. R. Balaji & Ors. v. State of Mysore [1963] Supp. 1
S.C.R. 439 and State of Andhra Pradesh & Anr. v. P. Sagar [1968] 3 S.C.R. 595
this Court held that classification of backwardness on the basis of castes would
violate both Articles 15(1) and 15(4).
The expression "socially and educationally backward classes" in Article
15(4) was explained in Balaji's case (supra) to be comparable to Scheduled
Castes and Scheduled Tribes. The reason is that the Scheduled Castes and
Scheduled Tribes illustrated social and educational backwardness. It is difficult
to define the expression "socially and educationally backward classes of
citizens". The traditional unchanging occupations of citizens may continue
to social and educational backwardness. The place of habitation and its
environment is also a determining factor in judging the social and
educational backwardness.
The expression "classes of citizens" indicates a homogeneous section
of the people who are grouped together because of certain likeliness and
common traits and who are identifiable by some common attributes. The
homogeneity of the class of citizens is social and educational backwardness.
Neither caste nor religion nor place of birth will be the uniform element of
common attributes to make them a class of citizens.
The traits of social backwardness are these. There is no social
structure. There is no social hierarchy. There are no means of controlling
the environment through technology. There is no organization of the
society to create inducements for uplift of the people and improvement of
economy. Building of towns and industries, growth of cash economy which
are responsible for greater social wealth are absent among such classes.
Social growth and well being can be satisfied by massive change in resource
conditions. High lands 'and hills are to be developed in fiscal values and natural
resources. Nature is a treasury. Forests, mountains, rivers can yield an
advanced society with the aid of education and technology.
The hill and Uttrakhand areas in Uttar Pradesh are instance of socially
and educationally backward classes of citizens for these reasons. Backwardness
is judged by economic basis that each region has its own measurable possibilities
for the maintenance of human numbers, standards of living and fixed property.
From an economic point of view the classes of citizens are backward when
they do not make effective use of resources. When large areas of land
maintain a sparse, disorderly and illiterate population whose property is
small and negligible the element of social backwardness is observed. When
effective territorial specialisation is not possible in the absence of means of
communication and technical processes as in the hill and Uttrakhand areas
the people are socially backward classes of citizens. Neglected opportunities
and people in remote places raise walls of social backwardness of people.
Educational backwardness is ascertained with reference to these
factors. Where people have traditional apathy for education on account of
social and environmental conditions or occupational handicaps, it is an
illustration of educational backwardness. The hill and Uttrakhand areas are
inaccessible. There is lack of educational institutions and educational aids.
People in the hill and Uttrakhand areas illustrate the educationally
backward classes of citizens because lack of educational facilities keep
them stagnant and they have neither meaning and values nor awareness for
education.
The 1971 Census showed population in India to be 54.79 crores. 32-89
crores or 80.1 per cent live in rural areas. 10.91 crores or 43.9 per cent live in
cities and towns. In 1921 the rural population in India was 88.8 per cent. In 1971
the rural population was reduced to 80.7 per cent. The rural population of Uttar
Pradesh in 1971 was roughly seven and a half crores. The population in
Uttrakhand was roughly seven and a half lakhs. The population of Hill areas in
Uttar Pradesh was near about twenty-five lakhs. It is in- comprehensible as to
how 80.1 per cent of the people in rural areas or 7 crores in rural parts of
Uttar Pradesh can be suggested to be socially backward because of poverty.
Further, it is also not possible to predicate poverty as the common trait of
rural people. This Court in J. P. Parimoo v. State of Jammu & Kashmir [1973]
3 S.C.R. 236 said that if poverty is the exclusive test a large population in
our country would be socially and educationally backward class of citizens.
Poverty is evident everywhere and perhaps more so in educationally
advanced and socially affluent classes. A division between the population of
our country on the ground of poverty that the people in the urban areas are
not poor and that the people in the rural areas are poor is neither supported
by facts nor by a division between the urban people on the one hand and the
rural people on the other that the rural people are socially and educationally
backward class.
Some people in the rural areas may be educationally backward, some
may be socially backward, there may be few who are both socially and
educationally backward, but it cannot be said that all citizens residing in
rural areas are socially and educationally backward.
On behalf of the State it is said that it is necessary to have reservation of
seats for the people from rural areas in order to attract people from those areas
who are otherwise handicapped in the matter of education, so that they can serve
the people in the rural areas on completion of their medical education. In order to
attract medical men for service in rural areas arrangements are to be made to
attract them. The special need for medical men in rural areas will not make
the people in the rural areas socially and educationally backward classes of
citizens (emphasis supplied).
As held in Pradip Tandon4, the Constitution does not enable
the State to bring socially and educationally backward areas within the
protection of Article 15(4). While the backwardness contemplated
is both social and educational, the accent under Article 15(4) is on
classes of citizens and not on areas or places. The "socially and
educationally backward classes" in Article 15(4) are those comparable to
the Scheduled Castes and the Scheduled Tribes as they illustrate
social and educational backwardness. The expression "classes of
citizens" indicates a homogeneous section of the people who are
grouped together because of certain likeliness and common traits,
and who are identifiable by some common attributes. The
homogeneity of the class of citizens is social and educational
backwardness. The traits of social backwardness are that there is
no social structure, there is no social hierarchy, and there is no
organization of the society to create inducements for upliftment of
the people and improvement of the economy. Where people have
traditional apathy for education, on account of social and
environmental conditions or occupational handicaps, it is an
illustration of educational backwardness.
The premise on which Statute 13(3) is based, that students
studying in non-residential government/zilla parishad/municipal
schools are socio-economically challenged is flawed. When a
question arises, whether a law, which prima facie infringes a
guaranteed fundamental right under Article 15(1), is protected by
Article 15(4), the validity of that law has to be determined by
Courts on the material placed before it. (State of A.P. v. P.
Sagar ). The test of the validity of a law, alleged to infringe the
fundamental rights of a citizen or any act done in execution of that
law, lies not in the belief of the maker of the law or of the person
executing the law, but in the demonstration by evidence before
Courts that the guaranteed right is not infringed. (P. Sagar10).
In its counter-affidavit, the respondent-University states that
it found students from non-residential government/zilla parishad/
municipal schools to be backward on the ground of socio-economic
backwardness; the respondent-University had taken into
consideration the social background of the students whoever
prosecuted their education in non-residential government schools
including Zilla Parishad/Municipal Schools etc, and had therefore
added a deprivation score of upto 0.4 to the GPA of the students;
and this was done with the object of providing weightage to these
deprived classes of students, who were socio-economically
challenged. No material has been placed by the respondents before
this Court to show that all students who are studying in non-
residential government/zilla parishad/municipal schools form a
homogeneous class grouped together because of certain likeliness
and common traits, and who are identifiable by some common
attributes. Neither is every student, who studies in such schools,
socially backward nor is there any basis for the respondents to
conclude that students, studying in such schools, are all
economically backward.
The object of Statute 13(3), as has been explicitly stated
therein, is to provide weightage to the socio-economically challenged
students. While the expression socio-economically challenged is
ambiguous, the State cannot merely, by adding the word socio to
the words economically challenged, provide reservation or make
special provisions in the form of concessions/incentives for the
economically backward sections of society, as what is permitted by
Article 15(4) of the Constitution of India is for the State to make
special provisions for the advancement of only the socially and
educationally backward classes, the scheduled castes and the scheduled tribes
and not any other class of citizens even if they be economically
backward. While economic backwardness cannot form the basis of
concessions or reservations under Article 15(4), the presumption
by the State that all the students, studying in such schools, are
economically backward is also not based on any verifiable data.
A contention, more or less identical to the one raised before
us, (that the number of marks obtained by candidates from non-
residential government/zilla parisahad/municipal schools showed
that they lagged behind in their ability to secure more marks vis--
vis students studying in residential government schools and
private aided and unaided schools) was also urged in Pradip
Tandon4, and the Supreme Court observed:
It was said that the number of marks obtained by candidates from rural
areas showed that they were much lower than the marks obtained by
general candidates and this would indicate educational backwardness. That
is neither a valid nor a justifiable ground for determining social and
educational backwardness. Educational institutions should attract the best
talents. It has been held by this Court in Balaij's case (supra) that 50 per cent of
the seats in educational institutions should be left open to general competition.
in the present case, it appears that 85 candidates from rural areas were selected
in the general seats. One candidate from Uttrakhand area, 7 candidates from hill
areas and one Scheduled Caste candidate also completed for the general seats.
The candidates from hill areas, Uttrakhand Division and Scheduled Castes are
exceptions and their performance will not detract from the reservations for
Scheduled Caste, bill and Uttrakhand areas. The performance of 85 candidates
from rural areas speaks eloquently for the high standards of education in rural
areas.
The reservation for rural areas cannot be sustained on the ground
that the rural areas represent socially and educationally backward classes of
citizens. This reservation appears to be made for the majority population of
the State. 80 per cent of the population of the State cannot be a
homogeneous class. Poverty in rural areas cannot be the basis of
classification to support reservation for rural areas. Poverty is found in all
parts of India. In the instructions for reservation of seats it is provided that in
the application form a candidate for reserved seats from rural areas must submit
a certificate of the District Magistrate of the District to which he belonged that be
was born in rural area and had a permanent home there, and is residing there or
that he was born in India and his parents and guardians are still living there
and earn their livelihood there. The incident of birth in rural areas is made the
basic qualification. No reservation can be made on the basis of place of birth, as
this would offend Article.
The onus of proof is on the State to establish that the reservations
are for socially and educationally backward classes of citizens. The State has
established that the people in hill and Uttrakhand areas are socially and
educationally backward classes of citizens.. (emphasis supplied).
As held in Pradip Tandon4, it is not possible to predicate
poverty as the common trait of rural people. If poverty was the
exclusive test, a large population in our country would be socially
and educationally backward class of citizens. Poverty is evident
everywhere, and perhaps more so in educationally advanced and
socially affluent classes. A division between the population of our
country on the ground of poverty, that people in urban areas are
not poor and those in rural areas are poor, is neither supported by
facts, nor by a division between urban people on the one hand and
rural people on the other that all rural people are socially and
educationally backward. Some people in rural areas may be
educationally backward, some may be socially backward, there
may be a few who are both socially and educationally backward,
but it cannot be said that all citizens, residing in rural areas, are
socially and educationally backward.
Reservation, concessions and incentives for students who
passed out from schools in rural areas cannot, therefore, be
sustained on the ground that rural areas in its entirety, represent
the socially and educationally backward classes of citizens. This
concession cannot be extended to a majority population of the
State which is poor, as it is not a homogeneous class. Poverty, in
rural areas, cannot form the basis of classification to support
reservation for rural areas as and poverty is found in all parts of
India. The premise that students, studying in non-residential
government/zilla parishad/municipal schools, suffer from poverty,
and are therefore economically backward, cannot also form the
basis of a classification to bring the concessions extended to them
within the ambit of Article 15(4) of the Constitution of India.
As held in Pradip Tandon4, the contention that the number
of marks, obtained by candidates from rural areas, showed that
they were much lower than the marks obtained by general
candidates, and this indicated educational backwardness, is
neither a valid nor a justifiable ground for determining social and
educational backwardness. Educational institutions should attract
the best talents. It is evident, therefore, that lower marks being
secured by students, who passed 10th class from non-residential
government/zilla parishad/ municipal schools, is neither a valid
nor a justifiable basis for determining the social and educational
backwardness of a class of citizens.
Article 15(4) of the Constitution of India is not restricted to
reservation alone, but enables the State to make special provisions
for the advancement of the socially and educationally backward
classes, the Scheduled Castes and Scheduled Tribes. The special
provisions which the State may make, for these specified
categories, would include providing them concessions and
incentives, such as the incentive provided in the present case of
adding a deprivation score to their GPA. Such
concessions/incentives would be saved from the vice of
discrimination, and violation of Article 15(1), only if they fall within
the ambit of Article 15(4), and such concessions/incentives are
provided only to socially and educationally backward classes, the
Scheduled Castes and the Scheduled Tribes and not, as Statute
13(3) would stipulate, to the socio-economically challenged students.
Article 15(4) does not enable the State, or its instrumentalities, to
provide such concessions/incentives to the economically backward
classes of citizens.
The concession/incentive, as stipulated in Statute 13(3), is
made available to all students who passed their 10th Class from
non-residential government/zilla parishad/Municipal schools,
which would, undoubtedly, include students from the open
category also. Students, who passed their 10th Class from such
schools, are not confined only to the socially and educationally
backward classes or to the Scheduled Castes and the Scheduled
Tribes, but would also include the affluent and those who, though
economically backward, are from the socially and educationally
advanced sections of society. Reliance placed by Ms.M.Vidyavathi,
on Pradip Tandon4, is therefore misplaced.
In Gopal D.Tirthani3, a provision giving weightage of marks
to rural services, and for holding a separate eligibility test for
determining the merit of in-service candidates for admission to
post-graduate medical courses, as distinguished from open
category candidates, was under challenge. It is in this context that
the Supreme Court observed:
.To withstand the test of reasonable classification within the
meaning of Article 14 of the Constitution, it is well settled that the
classification must satisfy the twin tests: (i) it must be founded on an
intelligible deferential which distinguishes persons or things placed in a
group from those left out or placed not in the group, and (ii) the defferentia
must have a rational relation with the object sought to be achieved. It is
impermissible to use territories or the nature of the objects or occupations
or the like as the basis for classification. So long as there is a nexus
between the basis of classification and the object sought to be achieved, the
classification is valid. We have, in the earlier part of the judgment, noted the
relevant statistics as made available to us by the learned Advocate-General
under instructions from Dr Ashok Sharma, Director (Medical Services), Madhya
Pradesh, present in the Court. The rural health services (if it is an appropriate
expression) need to be strengthened. 229 community health centres (CHCs) and
169 first-referral units (FRUs) need to be manned by specialists and block
medical officers who must be postgraduates. There is nothing wrong in the
State Government setting apart a definite percentage of educational seats
at post graduation level consisting of degree and diploma courses
exclusively for the in-service candidates. To the extent of the seats so set
apart, there is a separate and exclusive source of entry or channel for
admission. It is not reservation. In-service candidates, and the candidates
not in the service of the State Government, are two classes based on an
intelligible differentia. There is a laudable purpose sought to be achieved.
In-service candidates, on attaining higher academic achievements, would
be available to be posted in rural areas by the State Government. It is not
that an in-service candidate would leave the service merely on account of
having secured a postgraduate degree or diploma though secured by virtue
of being in the service of the State Government. If there is any
misapprehension, the same is allayed by the State Government obtaining a
bond from such candidates as a condition precedent to their taking
admission that after completing PG degree/diploma course they would serve
the State Government for another five years. Additionally, a bank guarantee
of rupees there lakhs is required to be submitted along with the bond. There
is, thus, clearly a perceptible reasonable nexus between the classification
and the object sought to be achieved (emphasis supplied)
To satisfy the test of a reasonable classification, within the
meaning of Article 14 of the Constitution, the classification must
fulfil twin tests i.e., (i) it must be founded on an intelligible
deferentia which distinguishes persons or things placed in a group,
from those left out or placed outside the group, and (ii) the
differentia must have a rational relation to the object sought to be
achieved. As long as there is a reasonable nexus between the basis
of classification, and the object sought to be achieved, the
classification is valid. It is impermissible to use territories or the
nature of objects or occupations or the like as the basis for
classification (Gopal D.Tirthani3).
While classification of students, studying in non-residential
government/ zilla parishad/municipal schools, may be founded on
an intelligible differentia, as students from these schools are
distinguishable from those studying in other schools, such a
classification would be held to satisfy the test of Article 14 only if
this differentia has a reasonable nexus to the object sought to be
achieved, and such an object is legal and valid.
The object which the respondent-university seeks to achieve,
as stated by them in their counter affidavit, is that students, who
studied in non-residential government/zilla parishad/Municipal
schools, were not reaching the expected Grade Point Average for
securing admissions into IIIT for the 6 Year Integrated Course.
This concession/incentive, of adding a deprivation score of 0.4 to
the GPA, is in addition to the reservations provided in favour of the
socially and educationally backward classes. In its counter-
affidavit, the respondent-university has stated that the rule of
reservation, fixed by the State Government, is being strictly
followed, which is 15% for the SC category, 6% for the ST category,
7% for the BC-A category, 10% for the BC-B category, 1% for the
BC-C category, 7% for the BC-D category and 4% for the BC-E
category.
The concession, of giving weightage of a maximum
deprivation score of 0.4, is extended to students from non-
residential government/zilla parishad/municipal Schools on the
premise that all of them are socio-economically challenged, an
ambiguous expression which appears to presume, erroneously,
that the economically challenged are invariably socially challenged
also. The counter affidavit does not disclose the basis on which
the respondent-university has concluded that all students, from
these schools, are economically challenged. Even otherwise,
economic backwardness is not a valid ground for making special
provisions under, and extending incentives/concessions to the
economically challenged is not sanctioned by, Article 15 (4) of the
Constitution of India.
The concession of providing a deprivation score of a
maximum of 0.4, to students studying in non-residential
government/zilla parishad/municipal schools must fail, firstly
because there is no verifiable data to show that all the students
studying in such schools are socio-economically challenged which is
the object of Statute 13(3). Secondly, because this object, of
providing weightage to the socio-economically challenged students, is
not legally valid as concessions in favour of the economically
backward is not permissible under Article 15(4) of the Constitution
of India. Reliance placed on Gopal D.Tirthani3 is therefore
misplaced.
While establishing the University and Colleges in rural areas
would, undoubtedly, provide an opportunity for students from
rural areas to have greater access to the educational facilities
provided thereat, reservation/concession/incentive to students
from certain categories of schools alone, and denying such benefits
to students from other schools, does not have a rational nexus to a
permissible objective. Extension of such concessions to the socio-
economically challenged (whatever this expression means) would fall
foul of the equality clause in Article 15 (1) of the Constitution of
India, besides violating Article 14 of the Constitution of India as
neither does the classification have a rational nexus to the object
sought to be achieved nor is the avowed object permissible under
Article 15 of the Constitution. Statute 13(3) not only falls foul of
Article 15(4) of the Constitution, it also suffers from the vice of
discrimination and arbitrariness offending Articles 14 and 15(1)
thereof.
In Satyabrata Sahoo5, additional weightage of marks was
given to in-service candidates in the post-graduate medical
entrance examination, for having served in rural areas/tribal areas,
even for seats earmarked for the open category. In this context the
Supreme Court held:
..We have referred to the above mentioned judgments only to indicate the
fact that this Court in various judgments has acknowledged the fact that
weightage could be given for doctors who have rendered service in
rural/tribal areas but that weightage is available only in in-service category,
to which 50% seats for PG admission has already been earmarked. The
question is whether, on the strength of that weightage, can they encroach
upon the open category, i.e direct admission category. We are of the view
that such encroachment or inroad or appropriation of seats earmarked for
open category candidates (direct admission category) would definitely affect
the candidates who compete strictly on the basis of the merit.
The purpose and object for giving weightage to in-service candidates
who have rendered rural/tribal service is laudable and their interest has
been taken care of by the Medical Council of India as well as the prospectus
issued for admission to the various medical colleges in State of Odisha but
they have to come through the proper channel i.e. the channel exclusively
earmarked for in-service candidates and not through the channel earmarked
for candidates in the open category. The in-service candidates are also free
to compete through the open category just like any other who fall under that
category. Further, it is also relevant to note those who get admission in post
graduate courses through the open category have to execute a bond stating that
they would serve rural/tribal areas after completion of their post-graduation. In
fact, weightage is given to those candidates who have rendered service in
rural/tribal areas when they compete for admission to PG (Medical) Courses in
in-service category for whom 50% seats are earmarked (emphasis
supplied).
While weightage of marks given to in-service candidates was
held to satisfy the test of Article 14 of the Constitution of India as
long as it was confined to the quota prescribed for in-service
candidates alone, and did not encroach into the seats left open for
the open competition, the Supreme Court, in Satyabrata Sahoo5,
made it clear that such weightage, for in-service candidates, could
not be provided in seats under the open category.
In Dinesh Singh Chauhan6, the proviso to Regulation 9 (2)
(d) permitted weightage of marks for admission in post-graduate
medical courses, to be given as incentives to in-service candidates
for each year of service rendered by them in remote or difficult
areas upto a maximum of 30% marks. On the validity of this
Regulation being subjected to challenge, the Supreme Court
observed:
In the present case, we have held that providing 30% reservation
to in-service candidates in Post Graduate Degree Courses is not permissible. It
does not however, follow that giving weightage or incentive marks to in-service
candidates for Post Graduate Degree Courses entails in excessive or substantial
departure from the rule of merit and equality. For, Regulation 9 recognizes the
principle of giving weightage to in-service candidates while determining
their merit. In that sense, incentive marks given to in-service candidates is
in recognition of their service reckoned in remote and difficult areas of the
State, which marks are to be added to the marks obtained by them in the
NEET. Weightage or incentive marks specified in Regulation 9 are thus
linked to the marks obtained by the in-service candidate in the NEET and
reckon the commensurate experience and services rendered by them in
notified remote/difficult areas of the State. That is a legitimate and rational
basis to encourage the Medical Graduates/Doctors to offer their services
and expertise in remote or difficult areas of the State for some time.
Indisputably, there is a wide gap between the demand for basic health care
and commensurate medical facilities, because of the inertia amongst the
young doctors to go to such areas. Thus, giving specified incentive marks
(to eligible in-service candidates) is permissible differentiation whilst
determining their merit. It is an objective method of determining their
merit.
The imperative of giving some incentive marks to doctors working in
the State and more particularly serving in notified remote or difficult areas
over a period of time need not be underscored. For, the concentration of
doctors is in urban areas and the rural areas are neglected. Large number of
posts in Public Health Care Units in the State are lying vacant and unfilled
in spite of sincere effort of the State Government. This problem is faced by
all States across India. This Court in Dr.Snehelatas case (supra) had left it to
the Authorities to evolve norms regarding giving incentive marks to the in-service
candidates. The Medical Council of India is an expert body. Its assessment about
the method of determining merit of the competing candidates must be accepted
as final (State of Kerala V. T.P.Roshana[9]; also see MCI V. State Of
Karnataka[10]). After due deliberations and keeping in mind the past
experience, Medical Council of India has framed Regulations inter alia
providing for giving incentive marks to in-service candidates who have
worked in notified remote and difficult areas in the State to determine their
merit. The Regulation, as has been brought into force, after successive
amendments, is an attempt to undo the mischief. (emphasis supplied).
Weightage of marks to in-service candidates in admission to
post-graduate medical seats, for services rendered by them in rural
areas, was upheld by the Supreme Court in Dinesh Singh
Chauhan6, taking note of the fact that doctors were concentrated
mainly in urban areas, and rural areas were neglected; a large
number of posts in Public Health Care Units were lying vacant and
unfilled inspite of sincere efforts of the State Government; and
providing such incentives to in-service candidates, who served in
difficult areas, was justified.
Unlike in Dinesh Singh Chauhan6, where weightage of
marks given for service rendered in difficult areas was held to be
valid by the Supreme Court, in the present case the weightage of
marks, in the form of a maximum deprivation score of 0.4, is
extended to students who passed their 10th Class from non-
residential govt/zilla parishad/municipal schools on the erroneous
premise that all such students are from the socio-economically
backward category. While this premise is itself flawed, even if we
were to presume that it is not, the socio-economic backward class of
citizens are not among those specified classes in whose favour
alone special provisions can be made by the State or its
instrumentalities under Article 15 (4) of the Constitution of India.
As we are satisfied that Statute 13 (3) of the Act violates
Articles 14 and 15 of the Constitution of India, and is liable to be
struck down on this ground alone, it is wholly unnecessary for us
to examine the contention of Sri P. Veerabhadra Reddy, learned
counsel for the petitioner, that such concessions/incentives are
also contrary to the Presidential Order made under Article 371-D of
the Constitution. This question is left open to be considered, if
need be, in appropriate legal proceedings.
A feeble submission is made by Ms. M. Vidyavati, learned
Standing Counsel for the respondent-University, that this order
should be given prospective effect since admissions to the six year
Integrated Engineering Course has already been completed, and
classes have commenced; against the judgment of the Division
Bench of this Court, in Mudavathu Nagraju1, the respondent-
University had carried the matter in appeal; and the Supreme
Court had directed that the students, who were already admitted,
should not disturbed.
The order of the Supreme Court, in Dean Rajiv Gandhi
Univ. of Knowledge Tech v. Mudavathu Nagaraju , reads thus:
Issue Notice.
Interim stay of the applicability of the impugned order to admissions made
prior to the date of judgment of the High Court. However, the interim stay
will not affect the direction to admit the second respondent to the
engineering course and it is made clear that the direction for his
admission is not disturbed.
It is only students, who were admitted prior to the date of the
judgment, who were directed by the Supreme Court not to be
disturbed. We had by the order dated 14.07.2017, while issuing
notice before admission, directed the respondent-University to
reserve six seats, among the seats remaining unfilled as on the date
of the order, in the S.V. University local area. These six seats have,
admittedly, not been filled-up till date. As a consequence of our
order, declaring Statute 13(3) made under the Act ultra vires
Articles 14 and 15 of the Constitution of India, the respondent-
university shall consider all eligible candidates, strictly in the order
of their inter-se merit, for admission to the six un-filled seats in the
six year integrated engineering course. This exercise shall be
completed, and the selected students shall be admitted, within two
weeks from the date of receipt of a copy of this order.
The Writ Petition is allowed. Miscellaneous petitions
pending, if any, shall stand disposed of. There shall be no order as
to costs.
_________________________________
(RAMESH RANGANATHAN, ACJ)
____________________
(M.GANGA RAO, J)
4th October, 2017
