C. M. NAYAR ( 1 ) THE present judgment will dispose of three writ petitions being Nos. 3025/96, 3447/96 and 3478/ 96. The petitioners in each case have challenged the selection made for B. Sc. Engineering Courses in the Jamia Millia Islamia, respondent University. At this stage it may be relevant to refer to the broad facts relating to each of the petitioners. ( 2 ) IN C. W. P. No, 3 025/96 there are two petitioners who have obtained 64 marks and 70 marks out of an aggregate of 200 marks in the written entrance examination. The ranking in general merit of petitioners is 3562 and 3049 respectively. They have challenged their exclusion from the successful list for admission to B. Sc. Engineering Course for the academic year 1996-97 on various grounds. Broadly speaking they contend that the respondent University has committed illegality in excluding them by making reservations of different categories which will be referred to at a later stage in this judgment ( 3 ) IN C. W. P. No. 3447/96 the petitioner secured 77 marks in the entrance examination and his ranking in general merit is 2329 He has also challenged the reservation policy of the respondent University as arbitrary. irrational and discriminatory. ( 4 ) IN C. W. P. No. 3478/96 the petitioner has secured 124 marks. ( 5 ) THE learned counsel for ;the petitioners in all the cases have assailed the reservations Which are referred to at Serial No. 7. 2 in the Prospectus for the year 1996-97 and the same read as under: "7. For all courses in the Faculty. candidates belonging to the following categories shall be considered for the seats reserved as noted below: Category Percentage of Seats Reserved (i) Jamia Students 25 (ii) Scheduled Caste/tribes 15+7-5 (iii) Sons/daughters/spouses of the permanent Jamia Employees 5 (h) Urdu Candidates 5 (a) If sufficient number of S. T. candidates are not available then S. T. quota will be filled by S. C. candidates and vice versa. (b) No other reservation or relaxation is admissible. (c) "jamia Students refers to those who have passed the qualifying Examination from the Jamia Millia Islamia. (d) Under the Category (iv) above, candidates who have studied Urdu upto class VIII or Adeeb supported by necessary certificates, shall be considered. (e) In Part-time courses 5% resen ation at (iii) above shall include permanent Jamia employees also". (c) "jamia Students refers to those who have passed the qualifying Examination from the Jamia Millia Islamia. (d) Under the Category (iv) above, candidates who have studied Urdu upto class VIII or Adeeb supported by necessary certificates, shall be considered. (e) In Part-time courses 5% resen ation at (iii) above shall include permanent Jamia employees also". ( 6 ) THE relative merit of the last candidate admitted in each of the reserved category as well as in the open merit may now be indicated hereunder:- ( 7 ) THE reading of the above facts will clearly established that petitioner Mr. Rajneesh Gupta in C. W. P. No 3478/96 will be eligible for admission as he is very high in merit having secured 124 marks. The total seats which were published in the Prospectus are 210 which are split up for various courses as under:- ( 9 ) IT is further argued by learned counsel for the petitioners that in addition to the above reserved seats the respondent University has also allocated 40 more seats over and above the seats as referred to above to Jamia Students who were only entitled to 52 seats (25%) as stated above. Paragraph 3 of the rejoinder affidavit may be reproduced herein:- "3. That the deponent came to know from the reliable sources that over and above the reservation for different categories of students mentioned in the Prospectus for the faculty of Engineering and Technology for giving admission in Graduate Engineering courses, about 40 seats of Graduate Engineering Courses have been allotted/given to the Jamia students. In fact, the Jamia Students as per the terms and conditions mentioned in the Prospectus are entitled only 25% of the total seats which are 210, however, they have been given about 40 seats over and above the aforesaid 25%. The 40 seats which have been given to the Jamia Students of er and above the 25%, belonged to general category candidates. In fact, out of 210 seats, admission for 89 seats have to be given to general category students. however only 49 seats have been given to the general candidates and the remaining 40 seats have been given to Jamia students. If all 89 seats would have been given to the general category candidates as per the terms and conditions contained in the Prospectus, the petitioner who. however only 49 seats have been given to the general candidates and the remaining 40 seats have been given to Jamia students. If all 89 seats would have been given to the general category candidates as per the terms and conditions contained in the Prospectus, the petitioner who. has secured 124 marks as disclosed by the respondents in the counter-affidavit, would have been given admission in the branch of its own choice in Graduate Engineering courses. This action on the part of the respondents is illegal. ( 10 ) THE main question which arises for consideration is as to whether the reservation of seats as referred to in the Prospectus can be sustained. I may herein deal with the settled position first with regard to the reservation of seats for sons and daughters of the permanent Jamia employees. This reservation has not been approved by the Supreme Court in the case reported as Chairman/ Director, Combined Entrance Examination (CEE) 1990 vs. Osiris Das and others (1992) 3 Supreme Courtcases 543. The court held that this kind of reservation has no reasonable nexus with the object which is sought to be achieved by the University. Reference may be made to para 5 of this judgement which reads as follows:- 5. After hearing learned counsel for the parties and having regard to the facts and circumstances of the case. we are of the opinion that the High Court was not justified in issuing the interim orders. There is no dispute that the G. B. Pant University is aided and financed by the State Government and the University is an instrumentality of the State. Any instrumentality of the State cannot give preferential treatment to a class of persons without there being am justification for the same. The reservation of-scats for admission to the B. Tech. course in favour of the sons and wards of the employee of the University is violative of the doctrine of equality enshrined under Article 14 of the Constitution. There is no rationale for the reservation of the seats in favour of the sons and wards of the employees of the University nor any such resen ation has any reasonable nexus with the object which is sought to be achieved by the University. The State Government, in our opinion. There is no rationale for the reservation of the seats in favour of the sons and wards of the employees of the University nor any such resen ation has any reasonable nexus with the object which is sought to be achieved by the University. The State Government, in our opinion. rightly insisted on the University to do away with the reservations in favour of the sons and wards of its employees. It is apparent that the University authorities. accepted the suggestions made by the State Government and they rightly decided not to give any preferential treatment to the sons and wards of the employees of the University in the matter of admissions to the technical institution. Once the State Government and University both decided not to have any reserved quota for the sons and wards of the employees of the University; no legal right could be claimed by the respondent-students for being given preferential treatment in the matter of admission to the B. Tech courses of the University. The teamed Single Judge of the High Court failed to appreciate these aspects and granted the interim orders directing the University to admit the respondents students. Once admission to an institution or a course of study is determined on merit on the basis of evaluation of marks,at the Entrance Examination, no student securing lower marks has any legal right for admission much less a right enforceable in a Court of Law. Since the reservation of seats in favour of the sons and Wards of the employees of the University was apparently violative of Article 14 of the Constitution, no court could issue directions for the enforcement of any such reservation. We are, therefore, of the opinion that the High Court was not justified in issuing the impugned interim orders. We accordingly allow these appeals and set aside the order of the High Court" ( 11 ) IN view of the settled position of law as stated above there is no justification to upheld the reservation made to the extent of 5% in favour of sons/daughters/spouses of the per employees. There is no option but to-strike it down ( 12 ) SIMILARLY the question of 5% resen ation for Urdu candidates may also be considered on the same basis. The candidates who fall in this category are defined in sub-clause (d) of clause 7. There is no option but to-strike it down ( 12 ) SIMILARLY the question of 5% resen ation for Urdu candidates may also be considered on the same basis. The candidates who fall in this category are defined in sub-clause (d) of clause 7. 2 to mean as: "under the category (iv) above, the candidates who have studied Urdu upto class VIII or Adeeb supported by necessary certificates shall be considered". The only grounds which are highlighted to justify the resen ation in this category are that large number of parents of the students are either illiterate or barely literate and vast majority are Urdu speaking and belonging to nationally minority community and Urdu being the medium of instructions upto VIII class level, the reservation in this category is sustainable. The University or educational institutions located in the area cannot ignore such important local realities Therefore- the resen ation is based on logical and rational considerations . The course for admission which is being sought in the present cases is admittedly being conducted in English and the students have applied for B Sc. Engineering Courses and the insertion of one language merely on theground that the area is pre-dominently Urdu speaking will serve no purpose as Such a reservation will have no reasonable nexus with the object which is sought to be achieved by the respondent University In case one language is inserted for reservation, there may also be a plea by others to include other languages as the best which is being conducted for the admission to the course is an All India test in which candidates from different parts of the country appear for admission to the Engineering Courses as conducted by the respondent University. Moreover. the University has already achieved status of a national University and candidates from all over the country take their admission tests for the courses which are open to students, coming from all walks of life. This kind of reservation, particularly for Engineering Courses will not be relevant. Therefore, the reservation for this category cannot be sustained as any preferential treatment on this ground alone will apparently be violative of Article 14 of the Constitution of India. ( 13 ) THERE is no challenge to the reservation which is made for Scheduled Caste/scheduled Tribes candidates who have been admitted to the course. Therefore, the reservation for this category cannot be sustained as any preferential treatment on this ground alone will apparently be violative of Article 14 of the Constitution of India. ( 13 ) THERE is no challenge to the reservation which is made for Scheduled Caste/scheduled Tribes candidates who have been admitted to the course. It will therefore not be necessary to adjudicate on the reservation of this category but it will be appropriate on the part of the respondent University to prescribe the minimum percentage of marks For eligibility for admission to the Engineering courses so that the standard of efficiency is not sacrificed. ( 14 ) THE last resen ation which has been assailed is with regard to Jamia students to the extent of ( 15 ) REFERENCE may be made to the judgment of the Supreme Court as reported in Mohan Birsingh Chawla vs. Punjab University, Chandigarh and another (1997) 2 SCC 171 where the Court was dealing with. weightage of 10% marks to be added for candidates who have passed their qualifying examination from Punjab University. This was held to be excessive. The Court examined various contentions of the parties and laid down the following principles on the basis of-settled cases. Paragraph 15 of the said judgment may be reproduced as follows:- "15, From the decided cases, following-principles emerge.- (a) College-wise preference is not permissible in any event. (b) University/wise preference is permissible provided it is relevant and reasonable. Seventy to eighty per cent reservation has been sustained, even where students from different universities appear at a common entrance test. The trend however is towards reducing the reservations and providing greater weight to merit. The practice all over the country today, as a result of the decisions of this Court, is to make fifteen per cent of the seats in MBBS course and twenty five per cent of the seats in postgraduate medical courses in all the government medical colleges in the country (except Andhra Pradesh and Jammu and Kashmir) available on the basis of merit alone. Students from anywhere in the country can compete, for these seats which, are allotted on the basis of an all-India test conducted by the designated authority. (c) The rule of preference on the basis of domicile/requirement of residence is not bad provided it is within reasonable limits ie. Students from anywhere in the country can compete, for these seats which, are allotted on the basis of an all-India test conducted by the designated authority. (c) The rule of preference on the basis of domicile/requirement of residence is not bad provided it is within reasonable limits ie. it does not result in reserving more than eighty five per cent scats in graduate courses and more than seventy five per cent seats in postgraduate courses But districtwise resen ations arc an anathema (d) Where the students from different universities appear at a common entrance test/examination (on the basis of which admissions are made) the rule of university wise preference too must shed some of its relevance. The explanation of difference in evaluation, standards of education and syllabus lose much of their significance when admission is based upon a common entrance test. At the same time, the right of the State Governments (which have established and maintained these institutions) to regulate the process of admission and their desire to provide for their own students should also be accorded due deference. (e) The fair and proper rule is: the higher you go, in any discipline, lesser should be the reservations of whatever kind. It is for this reason that it was said in Dr. Pradeep Jain that there should be no reservations in the matter of admission to super specialities, though in the recent decision in Rajiv Gopinath Bhatt, a different view appears to have been taken while affirming the principle of merit, at the same time. In the larger interest of the nation, it is dangerous to depreciate merit and excellence in any field. ( 16 ) THE Institution-wise reservation has to be kept in proper check and cannot be resorted to in greater percentage than required. The Supreme Court also accepted that there may be some measure of reservation in this regard but the same has to be followed on certain parameters which have to be constitutionally valid Paragraphs 17, 48 and 49 of the judgment as reported in Dr. Jagdish Saran and ors. vs. Union of India and Ors. The Supreme Court also accepted that there may be some measure of reservation in this regard but the same has to be followed on certain parameters which have to be constitutionally valid Paragraphs 17, 48 and 49 of the judgment as reported in Dr. Jagdish Saran and ors. vs. Union of India and Ors. AIR 1980 SC 820 , may be referred to:- ( 17 ) THIS norm of non-discrimination, however, admits of just exceptions geared to equality and does not forbid these basic measures needed to abolish the gaping realities of current inequality afflicting socially and educationally backward classes and the Scheduled Castes and the Scheduled Tribes. Such measures are rightly being taken by the State and are perfectly constitutional as the State of Kerala vs. N. M. Thomas (1976) 1 SCR 906 has explained. Equality and steps towards equalisation are not idle incantation but actuality, not mere ideal but real life. But can a university, acting within the constitutional parameters, creates a new kind of discrimination viz. reservation for students of a particular university? The literal terms of Art 14 do not tolerate it, the text of Article 15 does not sanction it. Can we carve win fresh ground of preference? Delhi University students, as such, are not an educationally backward class and indeed, institution-wise segregation or reservation has no place in the scheme of Article 15, although social and educational destitution may be endemic in some parts of the country where a college or university may be started to remedy this glaring imbalance and reservation for those alumni for higher studies may be permissible. We will explain this further but, speaking generally, unless there is vital nexus with equal opportunity, broad validation of university based reservation cannot be built on the vague ground that all other universities are practicing it a fact not fully proved before us either. Universality of illegality, even if the artist of discrimination are universities, cannot convert such proxis into constitutionality. Nor. indeed, can the painful circumstance that a batch of medical graduate demonstratively fasted in front of the Health Minister s house, ipso facto, legalise reservation of seats in their favour. Universality of illegality, even if the artist of discrimination are universities, cannot convert such proxis into constitutionality. Nor. indeed, can the painful circumstance that a batch of medical graduate demonstratively fasted in front of the Health Minister s house, ipso facto, legalise reservation of seats in their favour. Shri Shanti Bhushan vividly described his role as Law Minister in meeting the student satyagrah is who were honestly hungry for post-graduate seats and the crisis which stampeded government to intervene and make the University revise its reservation upward to save the lives of the tasters. We have sympathy for students especially for those who sacrifice their comforts to claiman opportunity to take post graduate medical degree. We even feel that the student community often resorts to direct action of the satyagraha model when the panchydermic disposition of authorities drives them to such drastic heroics But what if non Delhi students start a rival starvation exercise? That will lead to testing the rule of law on the immolative or masochist capabilities or affected groups and not on the Articles of the Constitution or provisions of the legislation. Protest fasting, a versatile weapon in our cultural armoury is meant to sensitive or conscientize the soul of the Administration when it is too paper-logged or callous to look at human problems from the angle of human justice. Beyond that, this great Gandhian technique cannot be blunted by promiscuous use, so long as democratic mechanisms are alive and not impervious to legitimate grievances and can be spelt into action not merely by sensational, though sincere, tactics like fasting unto death. While recognising, even reverencing the role of soul force in quickening the callous conscience of authorities to grave injury and need for urgent remedy, we cannot uphold the Delhi University s reservation strategy merely because Government was faced with student facts and ministers desired a compromise formula and the Universitybodies simply said amen . The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity Political panic does not ipso facto, make constitutional logic. 48. Another consideration which justifies some measure of reservation is THE desire of students for institutional continuity in education. Parents, pupils and teachers will usually. Prefer such continuity and it has its own value. 49 We recognise that institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. 48. Another consideration which justifies some measure of reservation is THE desire of students for institutional continuity in education. Parents, pupils and teachers will usually. Prefer such continuity and it has its own value. 49 We recognise that institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules, until revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the signpost of no admission for outsiders is removed from other universities and some fair percentage of seats in other universities is left for open competition the Delhi students cannot be made martyrs of the Constitution. " ( 17 ) THE words of caution were how ever sounded as will be evident from reading of paragraph 22 which is reproduced as follows:- "22. A caveat or two may be sounded even in this approach lest exception should consume the rule. The first caution is that reservation must be kept in check by the demands of the competence. You cannot extent the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation. Soacertain percentage which may be available must be kept open for meritorious performance regardless of university. State and the like complete exclusion of the rest of the country. wholesal banishment of proven ability to open up hopefully, some dalit talent total sacrifice of excellence at the alter of equalisation-when the Constituition mandates for everydone equaliyt before and equal protection of the law-may be fatal folly, self defeating educational technology and national if made a routine rule of State policy. A fair preference, a reasonable prior needs and and real potential of the weak with the parial recognition of the presence of competitivement such is the dynamic of social justice which animates the three egalitarian articles of the Constitution" ( 18 ) ON a reading of the above judgement it is quit clear that the reservation to extent of 25% for Jamia -students is rather on the High side. The University-wise preference has been held to be permissible provided that it is reasonable. The University-wise preference has been held to be permissible provided that it is reasonable. The learned counsel appearing for the University have categorically stated that the Majlisi,talimi (Academic Council) is already seized pf the matter and is examining the extent of reservation as well as the minimum eligibility criteria which they intend to formulate before the beginning of the next academic session. In this view of the manner, it will not be necessary to pass any orders in ( 19 ) THE next contention which is raised by the learned counsel for the petitioner is that excessive marks are allocated for viva voce examination i.-e 35 out of 200. This question was examined by the Supreme Court in Ajay Hansia etc. vs. Khalid Mujib Sehravardi and ors. etc. AIR 1981 Supreme Court 487, the Court hpheld the method of selection on the basis of the oral interview in addition to written test. The operative part of paragraph 18 reads as follows :- "18. It is therefore not possible to accept the contentions of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidate but in the absence of any better test for measuring personal charecteristics and traits, the oral interview test must, at the presemt stage, be regarded as not irrational or irrelevant though it is subjective and base on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission of colleges or even in the matter of public employment the oral interview test as presently held should not be relied upon as an exclusive test, but it may be restored only as an additional or supplementary test and, morever, great care, must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre qualification. " ( 20 ) THE plea of excessive marks allocated for viva-voce examination was next examined by the Court and it was held on the facts as pleaded that the allocation of more than 15% of the total marks for oral interview was arbitrary and unreasonable and would be liable to be struck down as excluded and any preference other than in order of merit will not stand the test of Article 14. (Municipal Corporation of Greater Bombay and Ors. vs. Thukral Anjali Deokumar and ors. (1989) 1 Supreme Court Cases 249 ). The learned counsel appearing for the respondent University have fairly conceded that the Academic Council is already seized of the matter and examining the fixation of minimum number of marks for admission. The necessary decision will be taken in due course. (E) The claim of the petitioner Rajneesh Gupta in C. W. P: No. 34781/96 is conceded by the respondent University as he is admittedly very high on merit. Therefore he will be entitled to admission for the next academic session as the present session has already concluded. (f) The petitioners in the other tup Writ petitions No. 3025/96 and 3447/96 do not succeed as they have obtained low percentage of marks in the entrance examination Therefore no relief can be granted to them, ( 23 ) THE writ petitions are disposed, of in the above terms. There will be no order as to costs. .