JUDGMENT 1. 1. The petitioner passed B.Sc. from the University of Jodhpur in 1990. She applied for admission for post graduation in M.Sc. (Zoology) in the University of Rajasthan in August, 1990. This was necessitated because the petitioner's father who is serving as Judicial Officer in Rajasthan had been transferred from Jodhpur to Jaipur in May, 1989 and thereafter to Bharatpur in June, 1990. For the purpose of education of his children his family is residing at Jaipur. The petitioner's percentage of marks were calculated 66%. She was hopeful to get admission in M.Sc. (Zoology). However, when admissions were given on 26.12.1990, she came to know that although persons who were lower in the order of merit as against her, have been admitted, the petitioner has not been admitted. She has stated that Miss Lavina Mittal has secured 65.38%, Miss Navneet Kaur has secured 65.33% and Neeraj Mathur has secured 64.83%. When she made inquiries from the University of Rajasthan, she was told that weightage of 5% marks is given to the candidates who have passed their graduation from the University of Rajasthan and therefore their percentage of marks is higher than that of (he petitioner and they have been preferred for admission as against the petitioner. 2. The petitioner served a notice dated 31.12.1990 and made a demand for justice but that was not replied and therefore she filed this writ petition under Article 226 of the Constitution of India. 3. According to the petitioner in the prospectus published by the University of Rajasthan for the year 1990-91 there is no provision for giving weightage of marks to the candidates of general category. Such benefit is extended only to those belonging to Scheduled Castes or Scheduled Tribes or Handicapped persons etc. As per Ordinance 81(IV) of the University of Rajasthan Head of the Institutions may fix higher minimum percentage of marks for grant of admission in the college concerned. 4. The petitioner has challenged grant of weightage of 5 percept marks to the candidates who have done their graduation from the University of Rajasthan on the ground that this weightage offends equality clause contained in the Constitution of India. The admissions are required to be made entirely on the basis of merit and therefore by giving weightage of 5 percent marks hostile discrimination is being practised against the petitioner. 5. The admissions are required to be made entirely on the basis of merit and therefore by giving weightage of 5 percent marks hostile discrimination is being practised against the petitioner. 5. In the reply filed by the respondent University of Rajasthan it has been asserted that the petitioner is not entitled to be admitted in M.Sc. (Zoology) on account of her lower merit. The respondent University has stated that weightage of 5 percent marks was given to the students who belonged to the category specified in para 4(1) of the admission policy contained in the prospectus of the University of Rajasthan for Post Graduate/M. Phil. Courses in Arts, Fine Arts, Social Science, Science & Commerce Faculties for the year 1990-91 and therefore the merit has to be assessed after adding weightage of the actual percentage of marks secured by those doing graduation from University of Rajasthan and other colleges coming within its jurisdiction. On the basis of this calculation candidates whose names have been given by the petitioner stood higher in the order of merit. The respondents have stated that Ordinance 81(IV) is wholly irrelevant to the case of the petitioner. The merit has been assessed according to the provisions contained in the prospects for the year 1990-91. The respondent University has justified grant of 5% weightage by stating that this was done in order to maintain the continuity of studies of the candidates by providing them facilities of admission in Jaipur itself. Even in other Universities similar provisions have been made and the local candidates are given weightage of certain percentage of marks. The candidates passing graduation from University of Rajasthan suffer because they do not get admission on account of weightage being given by other Universities and Institutions. 6. Shri Ajay Rastogi, learned counsel for the petitioner has argued that provision regarding grant of weightage of 5% is wholly irrational, arbitrary and unjustified. According to him the admissions to post graduate courses are required to be made on the basis of merit and merit alone and the marks secured by the candidates at the graduation examination only can constitute a valid basis for adjudging the merit for the purpose of admission to post graduate courses. By artificial additions of marks by giving weightage of 5% marks graduates from University of Rajasthan are given benefit of almost 200 marks. By artificial additions of marks by giving weightage of 5% marks graduates from University of Rajasthan are given benefit of almost 200 marks. This results in 100% reservation in favour of the candidates who have done their graduation from the University of Rajasthan; Shri Rastogi argued that merely because one candidate has done his graduation from University of Rajasthan because the parents are residing within the jurisdiction of University of Rajasthan at the time of doing graduation can by no element of justification be treated as basis for giving benefit of 5% marks to the candidate for the purpose of admission to post graduate course. Shri Rastogi has placed reliance on a decision of the Supreme Court in State of Rajasthan and another v. Dr. Ashok Kumar Gupta 1989(1) SCC 93 in support of his submission that weightage of 5% to the candidates doing graduation from Rajasthan University is un-constitutional. 7. Shri A.K. Sharma, learned counsel for the respondent has on the other argued that weightage of 5% marks is given to the students belonging to the college situated in the city of Jaipur and also non-collegiate correspondence candidates passing the qualifying examination from one of the centres at Jaipur. He argued that this weightage is given to all candidates who come within the scope of para 4(1) of the prospectus containing admission policy. This weightage was necessary to maintain continuity of education. He also argued that 1990-91 has already been over and therefore it will not be justified to give admission to the petitioner in post graduate course. The petitioner is already the student of L.L.B. 1st Year and she has not been prejudiced on account of denial of admission in post graduate course of M.Sc. (Zoology). 8. Shri Rastogi learned counsel for the petitioner stated that the petitioner will be satisfied if she is given admission during the course of 1991-92. 9. The provisions contained in para 4(1) of the prospectus issued by the University of Rajasthan and which contains admission policy reads as under : 4."Candidates fulfilling the above eligibility conditions will be admitted on the basis of merit. 9. The provisions contained in para 4(1) of the prospectus issued by the University of Rajasthan and which contains admission policy reads as under : 4."Candidates fulfilling the above eligibility conditions will be admitted on the basis of merit. While preparing the merit, the following criteria will be taken into consideration: (1) 5% weightage shall be given to students belonging to the colleges situated in the city of Jaipur and also to non-collegiate candidates and correspondence f candidates passing the qualifying examination from one of the centres at Jaipur." This is not a provision made by the State Legislature or by University of Rajasthan in ( exercise of its power conferred upon it by the Rajasthan University Act, 1946 to frame statutes, ordinances, rules, or regulations. These are nothing more. than mere administrative instructions. However, since they have been framed by the University of Rajasthan, the University of Rajasthan is bound by it. Even if the provisions had been made in University ordinances, rules or regulations or even by Act of the Legislature the validity of the same could have been tested with reference to Article 14 of the Constitution of India. 10. Admittedly admissions to post graduate course are required to be made on the basis of merit. This merit is assessed on the basis of marks secured by the candidates at the graduation examination. The admission policy seeks to make provisions for giving preference to the graduate of the University of Rajasthan. It is not disputed that graduates of the University of Rajasthan on the one hand and those of the Universities of Jodhpur, Udaipur, Bikaner, Kota, Ajmer stand at par. The degree of graduation awarded by one University is recognised by all other Universities. It can therefore be said that all graduates of the different Universities constitute one class. The mere fact that a particular candidate has done graduation from the University of Rajasthan does not afford any ground for giving him advantage by adding 5% marks to the total marks secured by him at the graduation. This would virtually result in exclusion of candidates applying for admission to post graduate courses in the University of Rajasthan who have not done graduation from that University. This distinction is neither rational nor it is having any relation with the object of the admission of the students on the basis of the merit. This would virtually result in exclusion of candidates applying for admission to post graduate courses in the University of Rajasthan who have not done graduation from that University. This distinction is neither rational nor it is having any relation with the object of the admission of the students on the basis of the merit. Any provision made under any of the Act of the Legislature or piece of delegated legislation or even administrative instructions must meet the test of equality clause contained in Article 14 of the Constitution of India. In a series of decisions of the Hon'ble Supreme Court in P. Rajendra v. State of Madras AIR 1968 SC 1012 , A. Periakarappan v. State of Tamil Nadu AIR 1971 SC 2303 , D.H. Chanchala v. State of Mysore AIR 1971 SC 1762 , State of Andhra Pradesh v. U.S. V Balram AIR 1972 SC, 137 , Jagdish Saran v. U.O.I. AIR 1980 SC 820 , Charles K. Sakeria v. C. Mathew AIR 1980 SC 1320 , Mohd. Sujjat Ali v. State of Andhra Pradesh, AIR 1974 SC, 1631 , EP. Royappa v. State of Tamil Nadu AIR 1974 SC 555 and Kumari Sri Lekha v. State of U.P. 1991(1) SCC 212 , test of reasonableness have been laid down. It is now settled principle of law that every action of the State must be free from arbitrariness. Ordinarily all persons or things similarly situated are to be treated equally. When this principle is departed from, it must be shown that the persons who have been treated differently form two different groups or classes and there is a rational relation between the differentiation made between the different groups and the object sought to be achieved. If those two requirements are not satisfied, the classification is liable to be struck down as unconstitutional. 11. In Ashok Kumar Gupta v. State of Rajasthan (supra) a provision of 5% weightage was struck down by the Division Bench of the High Court and the Supreme Court had upheld the decision of the Division Bench of the High Court in doing so. 11. In Ashok Kumar Gupta v. State of Rajasthan (supra) a provision of 5% weightage was struck down by the Division Bench of the High Court and the Supreme Court had upheld the decision of the Division Bench of the High Court in doing so. Their Lordships of the Supreme Court observed as under : "The High Court has struck down as un-constitutional the impugned provision embodied in note (d)(ii) of Ordinance 278-E mainly on the ground that coupled with the institutional preference accorded under clause (i) it would virtually amount to making 100 percent reservation in favour of the student of the Rajasthan University in the sense that no other student of any other University would have any reasonable chance to secure admission to these courses, relying on the principle enunciated in Nidmarti Mahesh Kumar v. State of Maharashtra . The reasoning in reflected in the following passage extracted from paragraph 25 of the judgment under appeal: Thus, after having given 5 percentage weightage on the ground of institutional preference that a candidate has passed his final MBBS examination from the University of Rajasthan. Further 5% weightage on the ground that he has passed his MBBS final examination from the Medical. College where he seeks admission, in post-graduate course, is unreasonable and arbitrary and does not stand the touchstone of Article 14 of the Constitution. If 10 percent weightage is given as aforesaid it will come to 275 marks and with this increase in marks no candidate from University other than University of Rajasthan can get admission to post-graduate course in any one of the medical colleges. It is against the equality clause as it amounts to cent percent reservation as 10 percent weightage on the University basis and 5 percent on the institutional basis, amounts to total exclusion of candidates of other Universities. We have already referred to the admissions for the years 1986 and 1987 and at the cost of repetition we may say that a look at Schedules 'A' and 'B' regarding admissions in SMS Medical College, Jaipur in post-graduate courses for the year 1986 and 1987 respectively will show that not a single candidate from the University other than University of Rajasthan could seek admission." 12. In the present case only reason which has been given out by the respondent University is the reason of continuity of education. In the present case only reason which has been given out by the respondent University is the reason of continuity of education. However, it has not been shown to the Court as to how the theory of continuity of education is having any rationality with the object of selection of candidates on the basis of merit which is determined with reference to the marks secured by the candidates at their graduation examinations. 13. In my opinion principles laid down in Dr. Ashok Kumar Gupta's case are fully applicable in the present case of the petitioner. 14. Consequently the writ petition is allowed. The proposition of 5% weightage made in the admission policy of the University of Rajasthan is declared unconstitutional and is struck down. However, since the academic session of 1990-91 is almost over, no purpose will be served by giving admission to the petitioner during this year. The respondent is directed to admit her to M.Sc. (Zoology) during the academic session to 1991-92. If other Universities have made such provisions the respondent University will be free to bring to their notice decision of this Court, It is expected that all Universities will bring their admission policies in tune with the constitutional code of equality. Costs made easy.Petition allowed. *******