Arvind Kumar and Another vs Union of India and Others

V.B. Bansal, J.

(1) The short question for decision in this application,viz. CM. 6475/93 is as to whether the respondents 3 & 4. i.e. Directorate of Training and Technical Education and Government of the National Capital Region of Delhi can restrict the admission of 85 per cent of the joint seats to the students of Delhi to the Pharmacy Course in Maharaja Surajmal Institute of Pharmacy, respondent No. 2, as provided in Clause 5 of the prospectus for the year 1983-84 for admission to Engineering and Pharmacy Courses for Government/privately managed institutions, issued by respondent No. 3.

(2) S/S. Arvind Kumar and Satender Kumar have filed a petition under Article 226 of the Constitution of India against the respondents in which it has inter aha been pleaded that Clause (5) of the aforesaid prospectus ,providing for reservation of 85 per cent of the seats for the students of Delhi, in the Institutions located in the National Capital Region of Delhi for the year 1993-94 may be quashed, being ultra virus of Articles 14, 15(1) and 21 of the Constitution of India.

(3) Maharaja Surajmal Institute of Pharmacy, respondent No. 2.(hereinafter referred to as the Institute), started diploma course in Pharmacy in July 1983. This Institute was recognised .by the Council of Technical Education and is duly affiliated to the Board of Technical Education, Delhi, for the diploma Course.

(4) One of the main aims and objects of the Institute has been to promote the advancement of knowledge and education in all fields for the benefit of people of India. It has been running a number of diploma course and it has been admitting students from all over India. It is an unaided private recognised Institute having about 47f0 members in all from all over the country. For admission to the Engineering and Pharmacy courses at Delhi in the Institutions located in the Union Capital Region of Delhi the Directors of Training and Technical Education has issued a prospectus for the year 1993-94 in which it has been provided that 85 per cent of the seats would be reserved for the students residing in Delhi. The grievance of the petitioners infer alias has been that they have passed their 10 plus 2examination in 1st Division and are resident of Uttar Pradesh, but desirous of seeking admission in Pharmacy Course in respondent No. 2 Institute. It has also been claimed that there are many students like the petitioners who are also interested in seeking admission but on account of this unreasonable and illegal restriction they all are deprived of such an admission and it has put an unreasonable and arbitrary embargo, which is vocative of the fundamental rights.

(5) The writ petition as also the application are being contested by the respondents No. 3 & 4, who have taken up the plea that a Scheme has been formulated by the Central Government following the judgment of the Hon''ble Supreme Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., and the prospectus has been issued following the guidelines laid dawn by the Union of India. It has also been pleaded that the reservation of seats for Delhi students is in accordance with law and, thus, a prayer has been made that the application for stay, viz. CM. 6475/93 may be dismissed.

(6) Another writ petition being CW. 3257/93 has been filed by Maharaja Surajmal Institute of Pharmacy and Technology against the Directorate of Technical Education and Government of the National Capital Region of Delhi as also the Union of India, in which also the challenge has been made to the issuing of the prospectus and making reservation as per Clause (5) of the said prospectus. An application, viz.CM.S177/93 has been moved in the said writ petition in which an order was passed that no admission should be made to the aforesaid Institute. The pleadings in CW. 3257/93 are similar to the pleadings in CW. 4065/93.The present order would, thus, dispose of both the applications regarding stay in the said two writ petitions.

(7) I have heard Shri D.S. Tewatia, learned Senior Advocate for Shri Arvind Kumar and Shri Satender Kumar (petitioners in CW. 4065/93);Shri Sildhir Nandrajog for Maharaja Surajmal Institute of Pharmacy; and Shri S.K. Mahajan for the Directorate of Training and Technical Education and the Government of the National Capital Region of Delhi.

(8) Learned Counsel for the petitioners has submitted that the Institute is an unaided recognised Institute imparting education in Pharmacy and it is controlled by a registered society having membership all over the country and mating contributions for its functioning. It has also been submitted that the purpose of running this institution has been to impart education to students from i Ii over the country and there has not been any justification to restrict the admission to students belonging to the Union Territory of Delhi only. He has also submitted that the guidelines in respect of the technical education issued by the Department of Education. Ministry of Human Resource Development, Government of India, in pursuance of the judgment of the Supreme Court of India in the case Unni Krishnan. JP. and Others v. State of Andhra Pradesh & Others (Supra)does not make any provision for providing such a clause which is unconstitutional and, thus. submitted that Clause (5) of the prospectus may he set aside so that the Institute may make the admissions of the students to the Pharmacy Course.

(9) Shri S K. Mahajan. learned Counsel for respondents 3 & 4 has on the other hand submitted that Clause (5) of the prospectus restricting admissions of 85 per cent of the student from Delhi is in compliance of the mandate of the Hon''ble Supreme Court in its judgment in UnniKrishnan, J. P. and Others v. State of Andhra pradesh & Others (Supra) anda prayer has, thus, been made that the application may be dismissed and the stay may be vacated so that the admissions are made to the Institution.

(10) Unni Krishnan, J.P. and Others v. State of Andhra Pradesh & Others (Supra) is a case in which the question of correctness of Mohini Jainv. State of Karnataka. 1982 (3) S.C.C. 666 was raised. In Mohni Jain''s case (Supra) three questions were framed by the Hon''ble Supreme Court, which were as under :

Whether the Constitution of India guarantees a fundamental right to education to its citizens ?

2.Whether a citizen of India has the fundamental right to establish and run an educational institution under Article 19(1)(g) or any other provision in the Constitution ?

3.Whether the grant of permission to establish and the grant of affiliation by a University imposes an obligation upon an educational institution to act fairly in the matter of admission of the students ?

(11) The following answers were recorded :

1.The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41. In other words every child/citizen of this country has a right to free education until he completes the age fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.

2.The obligations created by. Articles 41, 45 and 46 of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding, recognising and/or granting affiliation to private educational institutions. Where aid is not granted to private educational institutions and merely recognition or affiliation is granted it may not be insisted that the private educational institution shall charge only that fee as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge a higher fee, not exceeding the ceiling fixed on that behalf. The admission of students and the charging of fee in these private educational institutions shall be governed by the scheme evolved herein-set out in Part Iii of this Judgment.

3.A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right, to affiliation or recognition, or grant-in-aid from the State, the recognition and/or affiliation shall be given by the State subject only to the conditions set out in. and only in accordance with the scheme contained in Part Iii of this Judgment No Government/ University or authority shall be competent to grant recognition an affiliation except in accordance with the said scheme. The said scheme shall constitute a condition of such recognition or affiliation ,as the case may be, in addition to such other conditions and terms which such Government, University or other authority may choose to impose.

(12) A perusal of this judgment indicates that the main dispute in this case was with regard to the capitation fee charged and a scheme was framed by the Supreme Court eliminating discretion of management for admission to the institutions and with regard to fee payable to such institutions and substituting merit of the students as the sole criteria. Reservation of seats was dealt with by the earlier judgments of the Supreme Court and the pronouncements with regard to reservation of seats were not modified or set aside.

(13) The basic judgment with regard to reservation is in the case Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, ,It was pointed out in the said judgment that the scheme of admission to medical colleges may depart from principles of selection based on merit where it was necessary to do so for the purpose of bringing out real equality of opportunity between those who are unequals. It has also been observed that a certain percentage of reservation on the basis of residence requirement could legitimately be made for admission to medical institutions on a broader basis .It has also been observed that there could be no objection to stipulating reservation or preference for a reasonable quantum in under-graduate courses for students hailing from the School system of educational hinterland of the institutions and for this purpose there should not be any distinction between schools affiliated to state boards and schools affiliated to C.B.S.E. It has also been held that for admission to medical college in no event at least 30 per cent of the open seats should be available to students on all India basis irrespective of the State or university from which they come and such admission should be granted purely on merit on the basis of either all India entrance examination or entrance examination to beheld by the State. This. in my view, would also be applicable for admission to the Pharmacy Course which is covered by the term ''professional colleges'', as interpreted by the Supreme Court in Unni Krishnan, J.P. and Others v.State of Andhra Pradesh & Others (Supra).

(14) In the case Dr. Dinesh Kumar and Others v. Motilal Nehru Medical College. Allahabad and Others (1986) 2 Scc 727. the question for consideration was about the reasonableness of the fixing of 30 per cent of the total number of scats to be filled up on all India basis. It was held that in accordance with the suggestion made in the Scheme by the Government of India that not less than 15 per cent of the total number of seats in each medical college or institution, without taking info account any reservations validly made shall be filled on the basis of all India entrance examination .

(15) There is no doubt that Article 14 of the Constitution forbids classification ,hut it does not forbid reasonable classification. In the case of Heramba Kumar Sarma etc. v. State of Assam and Others, MR 1991Gauh 1 the Director of Medical Education, Planning &. Research, Assam averted that 15 per cent of the total number of seats were reversed for All India category and 85 per cent were reversed for Assam State category of applicants to the three medical colleges. This broad reservation is not challenged and other rules for having studied in an institution within the State of Assam for three years was challenged. Thus, the mere fact that the Institute is not taking any aid from Government would not make any difference and the respondent No. 3 can certainly have a centralised machinery for admission to the institutions.

(16) Considering all the facts, I am of the view that at this stage no fault can be found with regard to Clause (5) in the prospectus, especially when the time for admission is running fast and the admissions have not yet started.

(17) In view of my aforesaid discussion the application for interim relief viz. CM. 6475/93, stands dismissed.