Judgment S. B. Sinha, G. C. Bharuka, JJ. 1. This application is directed against an order dated 7th August, 1992 passed by the Respondent No.4 whereby the petitioner was directed to appear in the interview scheduled to be held on 25th of August, 1992 provided be belonged to Backward Class category II. 2. The fact of the matter lies in narrow compass. 3. The respondent No.1 University issued notices in several newspaper to the effect that and combined competitive entrance examination would be conducted by the University tor admission to B. Sc. , Agriculture, vetenary Sugeon (B. V. Sc. and A. H.) B. Sc. Dairy. Technics B. E. Agriculture Engineering, B. Sc. Home Science (for girls only) B. P. Sc. asking persons interested in taking admission in any of the aforementioned causes of studies to apply therefor. 4. For the aforementioned purpose a prospectus was, also issued which is contained in Annexture-1 to the writ application. 5. The petitioner pursuant to the said notice applied for and appeared at the aforementioned Combined Competitive Entrance Examination which was held on 10th April, 1992. 6. By reason of the impugned order dated 25th August, 1992, the petitioner was called for Interview by a letter dated 7th August, 1992 as contained in Annexure-2 to the writ application provided he belonged to backward Class II Category. 7. The petitioner has contended that as the reservation policy of the state relating to Backward Class II Category, had not been mentioned in the notice or in the prospectus, the purported letter dated 7th August, 1992 as contained in Annexnre-2 to the writ application must be held to be wholly illegal and without jurisdiction as interview could not have been granted only to those candidates who belong to Backward Class II category. 8. A counter-affidavit has been filed on behalf of the respondent - University wherein it has been contended that in the application itself information had to be given by the candidates as to whether he belonged to scheduled Caste, Scheduled Tribes and Backward Class I Category or not. 9. It has further been contended that 14% seats have been reserved for Scheduled Caste and 10% for Scheduled Tribes and Backward Class I category. 10. 9. It has further been contended that 14% seats have been reserved for Scheduled Caste and 10% for Scheduled Tribes and Backward Class I category. 10. However, after the results published serious disturbance had been created by a group of students who also submitted a representation demanding that the admissions should be taken in accordance with the resolution of the State Government contained in Circular bearing No.11-V-1-1022/91 k. V. being Memo No, 20 dated 6-2-1992 and owing thereto taking of admission had been postponed by the local college authorities. Subsequently meeting of the Vice-Chancellors and Registrars of the concerned universities namely respondent No.1 University and Birsa Agriculture university, Ranchi, had been called on 28-7-1992 by the Minister of Agriculture, and in the said meeting it was decided that since reservation for admission of B. C. II candidates was not provided, the University may call for informations from the list of successful candidates belonging to the general category so as to enable them to identify as to whether any of them belong to B. C. II candidates and admitted 23 candidates in various courses mentioned in the light of the aforementioned Government circular regarding reservation of seats for admission to professional course. 11. It has been contended that in this context the impugned order as contained In Annexure-2 was issued. The letter dated 24-7-1992 of the private Secretary to the Minister of the Agriculture and the circular issued pursuant thereto is contained In Annexture-R/d to the said counter-affidavit. 12. It has been contended that in terms of Paragraph 11 of the resolution which is contained in Annexure-R/c to the counter-affidavit, the reservation policy of the State of Bihar has been given a retrospective effect. It has also been contended that 23 additional seats have been created only for the purpose of giving effect to the said reservation policy of the State of Bihar. 13. An application for amendment of the writ petition was filed by the petitioner on 9-9-1992 wherein the State of Bihar was sought to be impleaded as a party and a prayer was also made that the reservation of the State government dated 7-2-1992 as contended In Annexure-R C to the counteraffidavit filed on behalf of the respondent-University as also the resolution as contained in Annexure-4 thereto be quashed. 14. Mr. 14. Mr. V. N. Sinha, learned counsel appearing on behalf of the petitioner has principally raised three contentions in support of this application. Firstly the learned counsel submitted that the Vice-Chancellor of the university had no jurisdiction to create additional seats inasmuch as the said power under the provisions of the Rajendra Agriculture University act has to be exercised by the Academic Council of the University alone. 15. The learned counsel further submitted that as In the prospectus or in the notices, no reservation of seats for B. C. Category II candidates was notified ; creation of 23 additional posts only for the said category of candidates and that too without considering as to whether they were economically backward or not must be held to be wholly illegal and without jurisdiction. 16. The learned counsel in this contention has strongly relied upon a decision of the Supreme Court in M. R. Balaji V/s. State of Mysore and another, 1963 SC 649 ; R. Chitralekha V/s. State of Mysore, AIR 1964 SC 1823 and Suresh Chandra Verma V/s. Chancellor, Nagpur University, AIR 1990 sc 2023 . 17. The learned counsel next contended that in any event the resolution of the State of Bihar could not have been given a retrospective effect. 18. The learned counsel appearing on behalf of the respondents, on the other hand, inter alia submitted, that the University was would to give effect to the reservation policy of the State and as by mistake the candidature of B. C. II candidate in the reserved category had not been taken into consideration, the resolution as contained in Annexure-R/c had to be adopted and 23 additional seats had been created in order to diffuse the situation. It has further been contended that as the petitioner did not qualify for admission as a general candidate, he has no locus standi to question the implementation of the reservation policy of the State by the university and/or creation of 23 seats therefor. 19. Before proceeding to consider the merit of the matter, the following fact may be noticed. The advertisement In question was published in Hindustan Times on 18th December, 1991. Admittedly the reservation of seats was made only for Schedule Castes, Scheduled Tribes and Backward Class Annexure-1 categories. 20. 19. Before proceeding to consider the merit of the matter, the following fact may be noticed. The advertisement In question was published in Hindustan Times on 18th December, 1991. Admittedly the reservation of seats was made only for Schedule Castes, Scheduled Tribes and Backward Class Annexure-1 categories. 20. Clause 5 of the directions which is a part of the prospectus as contained in Annexure-1 to the writ applicantion provides that if the application intends to take benefit of reservation quota then in Column No.10 to his application he must mention as to whether he belonged to Scheduled caste, Schedule Tribes and Backward Class I and he must also obtain a certificate from the competent officer in page 2 of the said application. 21. The State Government had issued a circular bearing No.20 dated 7-2-1992 in terms whereof reservation of admission for various categories of classes had been laid down which is as follows : 21_593_BLJ2_1993.htm 22. From a perusal of the letter dated 21st July, 1992 issued by dr. B. B. Verma, Associate Dean-cum-Principal addressed to the Vice-chancellor, rajendra Agricultural University, Bihar Pusa which is contained in annexnre-R/b to the counter-affidavit, it appears that attention of the Vice-Chancellor was drawn to the fact that a decision had been taken by the academic council in the meeting held in March, 1992 that reservation of various categories Backward Classes 1 and 2 would be 10% and thus there would be a short fall in 13% of reservation in comparision to the government Circular aforementioned. 23. In that letter it was pointed out : - "thus according to the aforesaid Government Circular there is short fall 13%. If this follow up the number of candidates to be admitted from Backward Classes 1 and 2 comes to 19.3 whereas selected list there are only 12 candidates to be admitted. So there is short fall 7 candidates. The members of the admission committee discussed this issue there were considered the applications submitted by the students alongwith the circular. Since there were problems maintaining law and order as well as to safeguards rights of the classes of students, the admission has been postponed. " 24. Admittedly a meeting was held wherein the Minister of agriculture and the Vice-Chancellor of the two Agricultural Universities participated. Since there were problems maintaining law and order as well as to safeguards rights of the classes of students, the admission has been postponed. " 24. Admittedly a meeting was held wherein the Minister of agriculture and the Vice-Chancellor of the two Agricultural Universities participated. Thereafter a resolution dated 7th February, 1992 as contained in Annexure-R/c to the counter-affidavit was issued, the relevant clauses whereof are as follows : "clause 5-Atha Rajya Sarkar ne Yeha Nirnay liya hai ki beosayke sakchnic Sansthono me pravesh hetu Ausuchit Jati/jan Jati/ atyant Pichra barg/pichara barg aweam Mahila barg ke nlmnakit pratist at me arkshan ke subidha pradan ki jaye. Ese Arkshan ke subidha ke liye koe arthik adhar nahi rakha gaya hai. 24_593_BLJ2_1993.htm Clause 2-11 - Ese Sanklap me liya gaye prowdhan tatliak prabhav se lagu hoge, tatha Jain sansthano me namakan hetu prakshiya/awadhan patra liye ja chuke ho, prantu namakan jahi hua to unpar bhi lagu hoge. " it is also admitted that pursuant to the aforementioned resolution, 23 additional seats were created in order to accommodates the backward Category II candidates. 25 Section 14 (3) (iv) of the Rajendra Agriculture University Act, 1987 provides that the powers, functions and duties of the academic council inter alta would be to make regulations regarding the admission of students to the University and determine the number to be admitted. academic Council has been defined in Sec.2 (1) of the Act to mean academic Council of the University. 26. Section 13 of the said Act provides that the Academic Council shall be incharge of the academic affairs of the University and shall subject to the provisions of the Act and the statutes, superintendent, direct and control and be responsible for the maintenance of standard of institution, education and examination and other matters, connected by the degree etc. The Vice-Chancellor is one of the member of the Academic Council. 27. From a perusal of the provisions of the said Act, it Is evident that the matter relating to fixing number of seats can be exercised by the academic Council. 28. In a supplementary counter-affidavit filed on behalf of the University it has been pointed out that in terms of Sec.6 (b) of the said Act, the Academic Council has to determine the number of students and can be accommodated in the available seats in the University or in particular college or department. 28. In a supplementary counter-affidavit filed on behalf of the University it has been pointed out that in terms of Sec.6 (b) of the said Act, the Academic Council has to determine the number of students and can be accommodated in the available seats in the University or in particular college or department. It has been contended that in view of the situation obtaining at the relevant time an emergency arose and the Vice-Chancellor exercise his power under Sec.26 (2) of the the said Act increasing the number of seats subject to the post-facto approval of the Acadamic Council. The said decision of the Vice-Chancellor is contained in Annexture-E to the supplementary counter-affidavit. 29. Mr. Sinha, learned counsel appearing on behalf of the petitioner has raised a contention that the power to fix the number of seats being a legislative power the said power cannot be exercised by the Vice-Chancellor in terms of Sec.26 (2) of the Act or otherwise. According to the learned counsel the power or authority derived from the Statute must be exercised in the manner laid down in the Statute itself and thus unless the Vice-Chancellor was also conferred with the legislative functions, he in exercise of his executive power could not usurp the legislative functions of the Academic Council. 30. There cannot be any doubt that the legislative functions and the executive functions conferred upon the statutory authorities under the said Act are a absolutely different. The legislative functions conferred upon the State or a body of persons have to be exercised by the authority specifically designated in this behalf who if in terms of the legislation itself was empowered to do an act and such a power of the University that could be exercised by the Vice-Chancellor in case an emergency arose. In our opinion, however, the requirements of the law in this case have been fulfilled. 31. In terms of Sec.17 of the said Act a regulation was framed by the Respondent-University known as Regulations on resident instruction. Rule 12 of the said regulations provides for the number of seats. Regulation 12 reads as follows : "number of seats, - The following seats have been allotted to different faculties. They may be changed from time to time as per decision of the University. Rule 12 of the said regulations provides for the number of seats. Regulation 12 reads as follows : "number of seats, - The following seats have been allotted to different faculties. They may be changed from time to time as per decision of the University. Note (b) Number of seats in various post-graduate Diploma courses offered at different campus of the University will depend on the nominations made by the State Government. The University reserves the right to fill or not depending upon the quality of candidates applying for admission. The University also reserves the right to reduce or cancel the number of maximum seats allotted for which no reason will be advanced. (c) The University also reserves the right to change the number of seats in any campus of the University depending upon its convenience but not detrimental to the institution and the States. " From a perusal of the aforementioned provision, it is clear that the academic Council has already fixed the number of seats in various disciplines. In terms of notes (b) and (c) aforementioned power has been delegated by the Academic Council to the University to reduce or cancel the number of maximum seats. In terms of note (c), a right has also been reserved by- the University to change the number of seats in the campus of the University depending upon convenience but not detrimental to the institution of the State. It is, therefore, clear that the power to increase or decrease the number of Seats apart from those which has been fixed by the Academic council have been delegated to the University itself. If the University could exercise the said power, there cannot be any doubt that the Vice-Chancellor of the University can exercise the same power, in case of an emergency in terms of Sec.26 (2) of the said Act. 32. Section 26 (2) of the said Act reads as follows : "the Vice-Chanceller may take any action in any emergency which in his opinion calls for immediate action, and he shall in such case and as soon as may be thereafter, inform the authority which will ordinarily have dealt with the matter. If the authority disagrees with the Vice-Chancellor, the matter shall be referred to the Chancellor whose decision shall be final. If the authority disagrees with the Vice-Chancellor, the matter shall be referred to the Chancellor whose decision shall be final. " In this case, as noticed hereinbefore, the V. C. has decided to increase the number of seats by 23 in view of the situation arising out of agitation res-torted to by a section of students resulting in holding up of admission of successful candidates in the University as well as pursuant to the discussion held by the Vice-Chancellor of the two Universities with the Minister of Education. As the decision of the Vice-Chancellor is subject to the post-facto approval of the Academic Council, no illegality can be said to have been committed by the Vice-Chancellar in this regard. However it goes without saying that the decision of the Vice-Chancellor being subject to the post-facto approval of the Academic Council, in the event the academic Council negatives the proposal of the Vice-Chancellor, the matter will end there. 33. In this view of the matter the first contention raised by Mr. Sinha has no force. 34. The second contention of Mr. Sinhas is to the effect that no reservation could have been made for Backward Class Category II candidates as caste cannot be made the sole basis there for and that in any event the same will have prosecutive operation. 35. It is true that the resolution dated 7th February, 1992 as contained in annexure-R/c to the counter-affidavit will have prosecutive effect, but the said resolution shall have effect on the day on which admission and to be effected. In this view of the matter, although the advertisement had been issued in December, 1991 but as the interview took place after the aforementioned resolution has been issued on 6-2-1992, will have prospective operation. 36. Article 15 of the Constitution of India provides for a reverse discrimination. In terms of Clause 4 of Article 15 of the Constitution of india the State is entitled to make special provision for the advancement of the Class mentioned therein. In M. R Balaji V/s. State of Mysore, AIR 1963 SC 649 upon which a strong reliance has been placed by the learned counsel for the petitioner it has been held that in order to identify a class which would fulfill the conditions of Article 16 (4) of the Constitution of India. They must be both socially and educationally backward. 37. They must be both socially and educationally backward. 37. In Balajis case (supra) the order of the Mysore Government reserving seats was impugned in court. In that case it was not dispute that Articles 15 (4), 29 (2), 46 and 342 form group of Articles making special provision for the advancement of any socially and educationally backward classes of citizens in matter of admission to educational institutions but the dispute was about the extent of such special provisions and the tests to be applied for determining backward classes. With regard to the extent of reservation permitted by Articles 15 (4)of the Constitution it was held that the same containing special provisions and it would be unreasonable to construe what provision as justifying total reservation of seats for such classes as contended by the State. 38. The Supreme Court however, in R. Chitralekha V/s. State of mvsore, 1964 SC 1823 explained Balajis case by saying that caste was one of the relevant factors for determing socially backwardness of the citizens. 39. However, in Minor A. Perriakaruppan V/s. State of Tamil Nadu and others AIR 1971 SC 2303 the Supreme Court upon consideration of balajis case Chitralekhas case and other decisions upheld the Classification of backward classes with reference to Caste. Subequently In D. N. Chanchanala V/s. State of Mysore, AIR 1972 SC 1762 it sought to distinguish perriakaruppans case (supra ). It is therefore, clear that in a proper writ application wherein the resolution of the State dated 4-2-1991 is questioned and a prayer for quashing the said notification is made, this court may considers the said aspect of the matter. Had the petitioner in the writ application stated the foundational facts therefor and impleaded the concerned respondents as parties, the matter would have been different. Although an application for amendment has been filed the students who had been taken admission, have not been impleaded as parties in the application. 40. Admittedly the petitioner was not selected. He could not compete with the candidates who applied pursuant to the advertisement made in terms of Annexure-1 to the writ application. He did not question the reservation policy of the State so far as backward Class 1 is concerned on the same ground which now he has sought to raise i. e. the criteria adopted by the State with regard to the socially and educationally backward classes who are in Category II. 41. He did not question the reservation policy of the State so far as backward Class 1 is concerned on the same ground which now he has sought to raise i. e. the criteria adopted by the State with regard to the socially and educationally backward classes who are in Category II. 41. The impugned order dated 7th February, 1992 is not the notification issued by the Government specifying the caste, the members whereof would be considered as Socially and educationally backward classes but thereby only percentage of reservation had been fixed. 42. In this case it has been found that 23 additional seats had been created in order to give effect to the reservation policy. The said additional seats bad been created for special reasons and for a special purpose. The said students have already been admitted and undergoing studies. Even if the creation of 23 additional seats are struck down by this court, the petitioner would not be benefited thereby in any manner. 43. In this view of the matter, we are of the opinion that the students, who had already been admitted, in the interest of Justice should be allowed to continue their studies. In Chairman Combined Entrance examination V/s. Orisa Osiris Das, 1992 (3) SCC 543 the Supreme Court although struck down the reservation of 50% of seats. Over and above sanctioned strength of the seats for sons and children of the employees of the institutions as it was held : - "even though we have set aside the interim order of the High court, we are of the opinion that having regard to the facts and circumstances of the case it would not be in the interest of justice to debar the respondent-students now who had been admitted and are undergoing their students in the University. The University has been granting reservation in favour of sons and wards of its employees for the last 25 years and even for the Sessions 1990-91 the University had published the brochure wherein it had issued, information to the effect that 5 per cent of the seats were reserved for the sons and wards of the employees of the University. It is in this background that the respondent-students appeared at the examination on the representation made by the University and they did not seeks admission elsewhere. It is in this background that the respondent-students appeared at the examination on the representation made by the University and they did not seeks admission elsewhere. Moreover, the University has been persisting in its stand to implement the reservation of favour of the sons and wards of its employees. It was only in October, 1990 that the University decided to fall in line with other institutions. During all this period the respondents-students were kept hanging on the hope that they would be considered for admission against the reserved quota. They delay in taking that final decision by the University created a situation where respondent-students would not pursue their study elsewhere. The students who have been admitted under orders of the High court and are pursuing their studies under the orders of the high Court, are (1) Sanjeev Kumar Singh ; (2) Rishabh vats ; (3) Km. Salma Rezvi ; (4) Km. Alka Srivastava ; (5) Chandra shekhar; (6) Ajay Gupta ; (7) Anup Bhat and; (8) Neeteesh Sood. We are, therefore of the opinion that the University and other authorities will allow the aforesaid eight respondents-students to pursue their studies and appear at the examination treating them to be regular students. We would, however, like to make it further clear that this order is being passed in the special facts and circumstances of this case, which will not be treated as a precedent and no other students will be entitled to any claim or right of admission against the aforesaid reserved quota for the sons and wards of the employees of the university. " 44. In terms of Regulations 8 of the Act, the University was also bound to give effect to the policy decision adopted by the State in this behalf from time to time. 45. For the reasons aforementioned, in our opinion, it is not necessary to consider the larger question raised by Mr. V. N. Sinha. 46. However, it goes without saying that in a proper case this court may examine the said question. 47. This application is dismissed with the aforementioned observations, but without any order as to costs. Application dismissed.