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Himachal Pradesh High Court · body

2001 DIGILAW 366 (HP)

NARINDER SINGH v. STATE OF H. P.

2001-12-05

C.K.THAKKER, R.L.KHURANA

body2001
JUDGMENT C.K. Thakker, C.J.:- All these petitions have been filed for a appropriate writ direction or order quashing and setting aside the reservation made by Chaudhary Sarwan Kumar. H.P. Krishi Vishvavidyalaya. Palampur. District Kangra. respondent No.2 herein in Clause 2.3 of the Prospectus for the Session 2001-2002 in first year of B.V.Sc. and A.H. Five Years Course in favour of students having qualified 10+2 Examination from "Rural Area School" and by directing the University to club all the seats together and give admission in Veterinary CoJIege. Palampur in the sad Course strictlv in accordance with merits. Other reliefs have also been prayed. 2. To appreciate contentions raised by the petitioners, the facts of the first petition, i.e. CWP No.833 of 2001 titled Sarinder Singh. son of Shri Hem Singh r. State of Himachal Pradesh & Ors.. may now be seated. 3. According to the petitioner, he is a citizen of India. He appeared in the Combined Entrance Test (CET) conducted by respondent No.2 University for seeking admission to B.V.Sc. and A.H. Five years Course for the Session 2001-2002. For admission to the said Course, respondent No.2 University had issued Prospectus. Important dates have been given in the beginning of the Prospectus. Whereas Chapter-I deals with Introduction. Chapter-II provides for Programme Intake and Reservation. Chapter-Ill provides for Admission. Chapter IV deals with Entrance Test. Chapters V. VI and VII provide for Enrollment and Fees. Financial Assistance. Medals and Certificates of Honour and Instructions to the Candidates. 4. Clause 2.1 declares that for sanctioned seats for the Session 2001-200"*.. the Academic Council of the respondent-University had sanctioned 35 seats for the Course of B.V. Sc and A.H. Five Years Programme. The relevant part of the said Clause reads thus: "(3) B.V. Sc.&A.H. 35 5-year programme. (i) 30 seats are meant for bonafide Himachali candidates in terms of rule 2.3(a)of this prospectus, (ii) 5 seats are to be filled in through nomination by Veterinary Council of India on the basis of All India Entrance Examination in terms of rule 2.3(b) of this prospectus," 5. Clause 2.2 provides for seats over and above sanctioned seats. Clause 2.3 is relevant and material for purpose of resolving controversy raised in the present group of petitions and may be quoted in extenso: "2.3 Reservation of seats for admission. Clause 2.2 provides for seats over and above sanctioned seats. Clause 2.3 is relevant and material for purpose of resolving controversy raised in the present group of petitions and may be quoted in extenso: "2.3 Reservation of seats for admission. The reservation of seats for Gram Panchayat Rajpur/Khalet only for B.Sc (Agri.) is as under- Two candidates from each Panchayat would be admitted in B.Sc. (Agri.) 4-year programme provided they obtain the minimum qualifying marks in the Combined Entrance Examination. The qualifying mars for them will be equal to the qualifying marks prescribed for SC/ST candidates. The benefit of the reservation shall be extended only once to one family. The benefit of reservation shall be extended only to the bonafide residents of these Pancayats. Candidates must produce certificates to this effect issued by the S.D.M. concerned. For details please see 4.19 (Item No.8). The admission to different programmes of study shall be open to all persons who are eligible as per requirements given in this prospectus subject to reservation of seats as under: 85% of the sanctioned seats in each programme shall be reserved for the students who are bonafide Himachali or who have passed their qualifying examination from a school or University situated within the territorial jurisdiction of the Himachal Pradesh. Out of these 60% of the seats in the wider-graduate programmes will be reserved for the students having qualifying 10-2 examination from rural area school. The remaining 15% seats or as prescribed, will be filed in through All India competitive examination conducted by ICAR/VCI as ICAR/VCI nominees. There will be further reservation in category (a) as under: 15% and 7.5% seats will be reserved for the students belonging to the Scheduled Castes and Scheduled Tribes category, respectively. In case the requisite number of candidates from one particular category of reservation i.e. Scheduled caste or Scheduled tribe are not available, it will be filled up from the other, but total reservation will not exceed 22.5%. Out of category (a) above. ? one seat in undergraduate programme shall be reserved for the son/daughter of the serving/ex-defence personnel provided no candidate of this category is selected on open merit. The seat stands exhausted once a candidate in open merit is selected. Merit being equal, preference shall be given to the sons/daughter of a serving/ex- defence personnel, who is a gallantry award winner. ? one seat in undergraduate programme shall be reserved for the son/daughter of the serving/ex-defence personnel provided no candidate of this category is selected on open merit. The seat stands exhausted once a candidate in open merit is selected. Merit being equal, preference shall be given to the sons/daughter of a serving/ex- defence personnel, who is a gallantry award winner. Two percent of the sanctioned seats in these programme shall be reserved for the wards of freedom fighters in accordance with the instructions of the H.P. Govt. on the issue as amended from time to time. Out of category (a) one seat will be reserved for sports co-curricular activities category in each under graduate programme. . Note: While calculating reservation, fraction less than 0.5 will be ignored and 0.5 or above will be counted one seat." (emphasis supplied) 6. Chapter-IV lays down detailed procedure regarding Entrance Test. Clause 4.22 speaks of preparation of Select List and Waiting List. With a view to remove any confusion relating to status of a candidate, whether he is Himachali or of Rural or General Category. Scheduled Caste or Scheduled Tribe, the candidates were assigned 3 figure codes to signify. Hundreds Place. Tehs Place and Units Place. It also states that the seats remaining vacant due to non registration of selected candidates or failure of the candidates, who were selected provisionally to furnish proof about their passing of qualifying examination with the desired percentage shall be thrown open without any further notice for the candidates on the Waiting List on the dates mentioned therein. For B.V. Sc. and A.H. Course, the date was 7th August. 2001. The candidates in the Waiting List, therefore, were requested to report in the college concerned on the said date and put their signatures along with time of their arrival in the college in a register maintained for the purpose in their own interest as-a token of their presence and availability for registration against the vacant seats. It was also stated that on 27th August. 2001. available vacant seats of any category except SC and ST in B.V. Sc. and A.H. Course would be made open to the Waiting List candidates of self-financing category. 7. The grievance of the petitioners is that Clause 2.3. as extracted hereinabove. makes reservation of seats for admission for different categories. It was also stated that on 27th August. 2001. available vacant seats of any category except SC and ST in B.V. Sc. and A.H. Course would be made open to the Waiting List candidates of self-financing category. 7. The grievance of the petitioners is that Clause 2.3. as extracted hereinabove. makes reservation of seats for admission for different categories. Initially it declares that the admission to different programmes of study would be open to all eligible students as per requirement of the Prospectus "subject to reservation of seats" as mentioned therein. It further states that 85% of the sanctioned seats in each programme shall be reserved for the students who are bonafide Himachalies or who have passed their qualifying examination from a school or university situated within the territorial jurisdiction of Himachal Pradesh. It then proceeds to state that out of it. 60% of the seats in the under-graduate programmes will be reserved for the students having qualifying 10+2 examination from "rural area school". It clarifies that remaining 15% seats or as prescribed, will be filled in through All India Competitive Examination conducted by ICAR/VCI as ICAR/VCI nominees. It also provides for further reservation in category (a) as mentioned in sub-clauses (c). (d). (e) and (f) of Clause 2.3. 8. According to the petitioners, combined reading of clauses 2.1 and 2.3 of the Prospectus shows that there were in all 35 seats in the course of B.V.Sc. and A.H.. Five Years Programme for the Session 2001-2002. Out of them, five seats were to be filed in through nomination by Veterinary Council of India on the basis of All India Entrance Test Examination. Remaining 30 seats were meant for bonafide Himachali students. As per the Prospectus. 18 seats were reserved for students, who had qualified 10+2 examination from rural area school. The remaining seats were to be filled in by the students. who had qualified 10+2 examination from the school other than rural area school. 9. It is the case of the contesting respondents No.3 to 15 in CWP No.833 of 2001 that they had appeared in CET and were given admission by the respondent-University in the category of students, who had qualified 10+2 examination from rural area school. The petitioner of CWP No.833 of 2001 (Narinder Singh) has asserted that he had secured 145 marks in CET. He was. however, not selected and has not been admitted. The petitioner of CWP No.833 of 2001 (Narinder Singh) has asserted that he had secured 145 marks in CET. He was. however, not selected and has not been admitted. Respondents No.3 to 12. who were considered eligible for admission had obtained marks, details of which are as under: "Aseem Sharma. respondent No.3. 153 Nishant Navyar. respondent No.4. 151 Suneet Pathania. respondent No.5. 145 Neha Sud. respondent No.6. 143 Aniketa Sharma. respondent No.7. 141 Vaishali Sharma respondent No.8. 140 Pranay Sood. respondent No.9. 140 Vikas Sharma. respondent No. 10. 140 Rita Kumari. respondent No. 11. 139 Ambudhar Sharma. respondent No. 12. 139. 10. The grievance of the petitioner is that the University had committed a error of law in making reservation of 18 seats by exercising power under clause 2.3. of the Prospectus and making reservation for students, who have qualified 10+2 examination from rural area school. The said reservation is arbitrary, illegal, discriminator}., unreasonable and violative of Articles 14 and 15 of the Constitution. The expression "rural area school" has not been defined in the Prospectus nor there are guidelines in the Prospectus to ascertain the concept of "rural area school". Moreover, there cannot be reservation for rural area school, as such the connotation is foreign to the Constitution. The reservation does not satisfy twin test of (i) reasonable classification based on intelligible different and (ii) the nexus or object sought to be achieved thereby. The University thus, in colourable exercise of power has made the reservation, which is unconstitutional and ultra vires and has adversely affected merits and deserves to be quashed. The petitioner, who has secured more marks then most of the contesting respondents has not been given admission in the course causing serious prejudice to him. The University has also not appreciated that the students living in periphery of urban area would take undue advantage of the reservation by seeking admission in rural area school and qualify ing 10-t-2 examination from such rural area school seeking undeserved benefit of the reservation depriving more meritorious students. Such a provision must be declared as illegal and unlawful. 11. It is also averred in the petition that most of respondents No.3 to 15 do not belong to rural areas and they actually belong to urban areas and they cannot be admitted to B.V.Sc. and A.H. Course. Such a provision must be declared as illegal and unlawful. 11. It is also averred in the petition that most of respondents No.3 to 15 do not belong to rural areas and they actually belong to urban areas and they cannot be admitted to B.V.Sc. and A.H. Course. The parents of the petitioners and others, stated the petitioners and others, made representation to the Governor of Himachal Pradesh contending therein that the reservation made by the University was not legal and valid. Nothing, however, was done by the respondent-authorities and the petitioner was deprived of admission illegally, though he was having better merits in comparison to the respondents. He was. therefore, constrained to file the petition. 12. Notices for admission and final hearing were issued on 1lth September. 2001 on the petition. The respondents appeared and affidavits were exchanged. 13. We have heard the learned counsel for the parties at length. 14. So far as respondent No.l is concerned. Mr. M.L. Chauhan. learned Deputy Advocate General stated that action has been taken by the University and everything has been done by it. The State did not intend to file any affidavit. 15. Respondent No.2 - University has filed a counter raising preliminary objection as also contesting the petitions on merits. It was. inter alia, contended by the University that 60% reservation had been made in accordance with the decision taken by the Academic council vide Item No.13 of its 6th meeting held on 7th May. 1981. copy of which is also produced along with the affidavit. According to the University, the action was taken with a view to giving weightage to rural area candidates, who did not enjoy advance facilities as the students of urban areas enjoyed. According to the University, the Academic Council has been empowered under Section 15 of the Himachal Pradesh Universities of Agriculture. Horti culture and Forestry Act. 1986 (hereinafter referred to as the Act) and in particular clause (iv) of sub-section (3) of the said section. Such reservation, therefore, according to the University, is legal, valid and intra vires. 16. An affidavit-in-reply is also filed by Neha Sud. respondent No. 6 herein - one of the contesting respondents. In the preliminary objections, the deponent contended that when the petitioner filled in the form for B.V.Sc. Such reservation, therefore, according to the University, is legal, valid and intra vires. 16. An affidavit-in-reply is also filed by Neha Sud. respondent No. 6 herein - one of the contesting respondents. In the preliminary objections, the deponent contended that when the petitioner filled in the form for B.V.Sc. and A.H. Course, it was well within his know ledge that certain seats had been reserved for rural candidates and yet he filled in the form and appeared in the Combined Entrance Test. Having been unsuccessful in getting admission, he is now stopped from filing a petition and raising an objection that rural area reservation was illegal and contrarv to law. It was also contended that the reservation made by the University was for the benefit of those students, who are not in a position to compete with the candidates, who had taken education in urban area. It was in furtherance of aims and objectives of the situation that such reservation was made and no objection can be raised by the petitioner against it. It was also contended that the reservation was in conformity with the provisions of the Act and the Constitution. 17. Mr. Singh. learned Senior Advocate, instructed by Mr. Bimal Gupta, learned counsel for the petitioner raised several contentions. He submitted that it is settled law that all admissions must be given on the basis of merit and merit alone. The action of the University of making reservation for rural area school is arbitrary, discriminatory, unreasonable and violative of Articles 14. 15. 19 and 21 of the Constitution. He also stated that in, several cases, the Honble Supreme Court as well as this Court had held that such a reservation is neither covered by Article 15 of the Constitution nor would be protected under Article 14 and requires to be struck down. The counsel also urged that there is no delay or laches on the part of the petitioner in approaching the Court. As soon as the action was taken by the University, a representation was made by several students to His Excellency, the Governor of Himachal Pradesh, copies of which were sent to the Honble Chief Minister. Honble Minister of Animal Husbandry and Vice Chancellor of the University. Since no action was taken by them in the matter, no alternative was left to him but to approach this court. Honble Minister of Animal Husbandry and Vice Chancellor of the University. Since no action was taken by them in the matter, no alternative was left to him but to approach this court. The counsel stated that the petition was filed on 10th September. 2001. which cannot be said to be delayed, nor there was acquiescence on his part. Regarding estopped, it was urged that when the action is in contravention of the provisions of the Constitution and is otherwise arbitrary, unreasonable and inconsistent with the law laid down by the apex Court, the doctrine does not apply. Almost in similar circumstances, it has been held by this Court and the Honble Supreme Court that such a reservation is illegal and ultra vires. The directions have been issued to the authorities to take appropriate proceedings in accordance with law. All the petitions, therefore, deserve to be allowed by quashing and setting aside admissions given on the basis of reservation to rural area school and by directing respondent No.2-University to refix Select List in accordance with law. 18. Mr. Thakkur. learned counsel for the University, on the other hand, supported the action of the University, He contended that the reservation was in consonance with law and as per the decision taken by the Academic Council in exercise of statutory power under the Act. Such reservation is not open to challenge by the petitioner(s). He also submitted that the Academic Council took into account the fact the students, who studied in rural area school do not enjoy facilities, which are available to urban area school and with a view to do justice to those students, a policy decision was taken by the Council and such a decision cannot,be challenged on the ground that it is arbitrary or unreasonable. 19. Mr. Rajiv Sharma. learned counsel supported the stand taken by Mr. Thakur on merits. He. however, raised a preliminary objection that it is not open to the petitioner(s) to invoke extraordinary jurisdiction of this court under Article 226 of the Constitution having filled in the form, appeared in the Combined Entrance Test and having failed to get admitted. The Counsel contended that the Prospectus was issued in May. 2001. The last date for submission of completed Application Forms was 28th May. 2001. Combined Entrance Test was conducted on 24th June. 2001. Select List was prepared on 6th August. The Counsel contended that the Prospectus was issued in May. 2001. The last date for submission of completed Application Forms was 28th May. 2001. Combined Entrance Test was conducted on 24th June. 2001. Select List was prepared on 6th August. 2001 and Waiting List was prepared on 7th August. 2001. The petitioner, however, approached this court as late as on 10th September. 2001. Thus, there was gross delay and laches on his part in approaching this court. Moreover, the day the petitioner obtained Prospectus, he was aware that certain seats were allotted by the University to students, who had passed 10+2 Examination from rural area school. Had he any objection against that part of the Prospects, he could have approached this Court immediately making grievance against the sad action. He. however, failed to do so. Now. when he is not selected, he makes grievance against the so called reservation for students who have passed 10-r2 Examination in rural area school. Virtually, therefore, contended the counsel, the petitioner intends to blow hot and cold" or approbate and reprobate or "loose and fast, which is not permissible. The counsel also urged that the expression "reservation" has been loosely used in the Prospectus. It is not "reservation" as is understood in the legal parlance. It is merely a mode of filing seats at B.V.Sc. and A.H. Course by the University. Certain seats were allotted or made available to a particular class of students. All contentions raised by the learned counsel for the petitioners in view of the aspect can be said to be ill-founded and no relief can be granted to the petitioners. It was also submitted that it cannot be successfully contended by the petitioner that his fundamental right has been violated. Higher education is never considered a fundamental right. It was. therefore, submitted that no case has been made out for intervention by this Court and the petitions are liable to be dismissed. 20. Mr. Shrawan Dogra and Mr. K.D. Sood. learned counsel have supported the arguments advanced by Mr. Thakur as well as by Mr. Sharma. 21. Having considered the rival contentions of the parties, in* our opinion, all the petitions deserve to be allowed. 22. So far as delay and laches is concernd. from the facts, it is clear that the last date of submission of completed Application Forms was 28th May. 2001 without late fee. Thakur as well as by Mr. Sharma. 21. Having considered the rival contentions of the parties, in* our opinion, all the petitions deserve to be allowed. 22. So far as delay and laches is concernd. from the facts, it is clear that the last date of submission of completed Application Forms was 28th May. 2001 without late fee. With late fees, it was 15th June. 2001 and 22nd June. 2001. Combined Entrance Test was held on 24th June. 2001. Select List and Waiting list were prepared on 6th August and 7th August. 2001. respectively. According to the petitioners), a representation was made to His Excellency, the Governor of Himachal Pradesh by the parents of the petitioner and others (Annexure P-3) and copies were also sent to Honble Chief Minister. Honble Minister of Animal Husbandry and Honble Vice chancellor of the University, but no action was taken in pursuance of the representation. In these circumstances, the first petition (CWP NBo.833 of 2001) was filed on 10th September. 2001. In our opinion, therefore, it cannot be said that there was undue, deliberate or unexplained delay on. the part of the petitioners) in approaching this court. 23. In this connection, our attention was invited by the learned counsel to a decision of the Supreme Court in Ramesh Kumar & Anr. v. The Technological Institute of Textile. Bhiwani & Ors.. AIR 1981 SC 1200. wherein the Court held that since the aggrieved petitioners challenged the admission to Technological Institute of Textiles within two months from the admission, there was no unreasonable delay on their part. The court observed: "We may make it clear, however, that if the petitioners had delayed the institution of their petitions by. say. four months or so. we Mould not have entertained them by-reason of delay alone, in the facts and circumstances of the case." (emphasis supplied). 24. In the instant case, in our considered opinion, there was no delay on the part of the petitioners in approaching the court in the light 6 of attenuating circumstances mentioned in the petition. The first preliminary objection has. therefore, no force and cannot be upheld. 25. The second preliminary objection relates to stopped, acquiescence and waiver. 24. In the instant case, in our considered opinion, there was no delay on the part of the petitioners in approaching the court in the light 6 of attenuating circumstances mentioned in the petition. The first preliminary objection has. therefore, no force and cannot be upheld. 25. The second preliminary objection relates to stopped, acquiescence and waiver. The contention on behalf of the contesting respondents is that as soon as the petitioner obtained Prospectus, it was well within his knowledge that certain seats were earmarked (or reserved) for students, who had passed 10-K2 examination from rural area school. If he had any grievance against such allotment (or reservation), nobody prevented him from approaching this court challenging so called allotment (reservation) contending that it was illegal and ultra vires. The petitioner did not think it fit to do so. Not only that, but with an open eye. he filled in the form and took chance to get himself selected. Having failed to get admission, he turned round and challenged the decision on the around that it was illegal and unlawful. Such an argument cannot be permitted by this Court and no relief can be granted in his favour. In this connection, our attention was invited by the learned counsel to several decisions including the following: 1. Dr. G. Sarana v. University of Lucknow & Ors. AIR 1976 SC 2428. 2. Suneeta Aggarwal v. Slate of haryana & Ors.. 2000(2) SCC615. 26. We see no substance in the objection raised by the learned counsel for the connecting respondents. It is well settled law that the doctrine of stopped is based on equiry and it has no application if the action complained of or impugned is contrary to law or ultra vires a statute. It is well established principle of law that the doctrine of stopped, waiver or acquiescence does not apply against a statutory provision. In the instant case, the grievance of the petitioner is that the action taken by the 2nd respondent-University is to only illegal and unlawful, but is unconstitutional and ultra vires Articles 14 and 15 of the Constitution. It is also against various decisions of the Honble Supreme Court, which is the law of the land. In the instant case, the grievance of the petitioner is that the action taken by the 2nd respondent-University is to only illegal and unlawful, but is unconstitutional and ultra vires Articles 14 and 15 of the Constitution. It is also against various decisions of the Honble Supreme Court, which is the law of the land. By the impugned action, fundamental rights of the petitioner guaranteed by Articles 14.15.19 and 21 of the Constitution have been violated, it is not open to the respondents to press in service the doctrine of stopped, acquiescence or waiver. The said doctrine has no application qua enforcement of fundamental rights. The Counsel for the above proposition placed strong reliance on decisions of the Supreme Court in Basheshar Nath v. Commissioner of Income-tax. Delhi and Rajasthan & Am:. AIR 1959 SC 149 and in Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.. AIR 1986 SC 180. 27. In our opinion, even the second preliminary contention has no force. The objection raised by the petitioner is that the provision in the Prospectus is arbitrary, discriminatory and unreasonable. Virtually, therefore, such a provision is not in consonance with the Constitution and. in a particular. Part-Ill there of. Such an argument cannot be foreclosed on the specious plea of stopped, acquiescence or waiver. This contention also, hence, cannot earn the matter further so far as contesting respondents are concerned. 28. Coming to the merits of the matter, our attention has been invited by the learned counsel to relevant case law on the point. In several decisions, the courts had considered similar situations and decided them in the light of facts and circumstances and relevant provisions of the statutes. 29. In Minor P. Rajendran v. State of Madras & Ors.. AIR 1968 SC 1012. certain seats in the first Year Integrated M.B.B.S. Course were reserved and were allocated District wise. The allocation as challenged on the ground that it was violative of Article 14 of the Constitution as there was no nexus between classification and object sought to be achieved. 30. AIR 1968 SC 1012. certain seats in the first Year Integrated M.B.B.S. Course were reserved and were allocated District wise. The allocation as challenged on the ground that it was violative of Article 14 of the Constitution as there was no nexus between classification and object sought to be achieved. 30. Upholding the objection and declaring the allocation as arbitrary and ultra vires Article 14 of the constitution, the apex Court stated: "....It is true that Article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact however that the classification by itself is not enough to support it unless there is nexus between the classification and the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats districtwise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so. the classification.even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources." The Court proceeded to state: "....We are satisfied therefore that the State of Madras has made out no case for districtwise allocation of seats in medical colleges. We are also satisfied that such allocation results in discrimination and there is no nexus between this territorial distribution and the object to be achieved, namely, admission of the best talent from the two sources already indicated. We are therefore of opinion that allocation of seats on districtwise basis is violative of Article 14. We may add that we do not mean to as that territorial classification is always bad under all circumstances. But there is no doubt that districtwise classification which is being justified on a territorial basis in these cases is violative of Article 14. for no justification worth the name in support of the classification has been made out. We therefore hold that R.8 providing for districtwise allocation is bad. as it violates Article 14 and we hereby strike it down." 31. for no justification worth the name in support of the classification has been made out. We therefore hold that R.8 providing for districtwise allocation is bad. as it violates Article 14 and we hereby strike it down." 31. In Slate of It tar Pradesh & Ors. v. Pradip Tandon & Ors., AIR 1975 SC 563. a reservation was made for sociallv and educationally backward class in Medical colleges for candidates from rural area. It was challenged on the ground that it was violative of Article 15(4) of the Constitution. The Court, after considering the affidavits filed on behalf of the authorities, held that the reservation of seats in Medical Colleges in Uttar Pradesh for candidates from rural areas was unconstitutional. But reservation for candidates from Hill and Uttrakhand areas was valid. Referring to the Constitution Bench decision in of. M.R. Balaji & Ors. v. The Stale of Mysore & Ors.. AIR 1963 SC 649. the Court observed that the expression "socially and educationally backward classes" in Clause (4) of Article 15 of the Constitution must be read as comparable to Scheduled Castes and Scheduled Tribes. In the opinion of the Court it was difficult to define the expression "socially and educational!}, backward classes of citizens". The place of habitation and its environment was also a determining factor in judging the social and educational backwardness. 32. It was contended on behalf of the State that it was necessary to have reservation of seats for the people from rural areas in order to attract them, who were otherwise handicapped in the matter of education, so that they may serve the people in the rural areas on competition of their medical education. The special need for medical men in rural areas, observed the Supreme Court, would not make the people in the rural areas socially and educationally backward classes of citizens. 33. It was also urged on behalf of the State that the number of marks obtained by the candidates of rural areas showed that they were much more less than the marks obtained by general candidates, which would indicate educational backwardness. 34. On the above submission, the Supreme Court commented: "That is neither a valid nor a justifiable ground for determining social and educational backwardness". According to the Supreme Court. Educational Institutions should attract the best talents. 34. On the above submission, the Supreme Court commented: "That is neither a valid nor a justifiable ground for determining social and educational backwardness". According to the Supreme Court. Educational Institutions should attract the best talents. Hence, the reservation for rural areas could not be sustained on the ground that they represented socially and educationally backward classes of citizens. Referring to the affidavits of the authorities, however, the Supreme Court observed that the Hill and Uttrakhand areas in Uttar pradesh were instances of socially and educationally backward classes of citizens and hence reservation for the said areas was clearly saved by the constiutional provisions. 35. In Miss Arti Sapru etc. v. Slate of Jammu and Kashmir & Ors.. AIR 1981 SC 1009. again reservation on the ground of rectification of imbalances in different parts of the State was held to be violatives of Articles 14 and 15 of the Constitution by the Supreme Court. It was contended that more than 95% of the villages were classified as socially and educationally backward callina for reserved quota. The Supreme Court, however, observed that in absence of the intelligible data, the classification suffered from arbitrariness and reservation on the ground that the candidates hailed from rural could not be sustained. The court noted that no doubt the State Government had acted in its own wisdom, but the material to which that wisdom was applied had not been disclosed at all. "The fact by itself that some hundreds of villages have been brought within the classification is of no assistance whatever. "The Court also stated that the criterion adopted by the State Government cannot be accepted unless supported by other relevant considerations. 36. In Suneel Jatley. etc. v. State ofharyana etc.. AIR 1984 SC 1534. certain seats were reserved for admission to M.B.B.S/B.D.S. Course in Maharishi Dayanand University. Rohtak for rural candidates. The reservation was held to be violative of Article 14 of the Constitution. Referring to earlier decisions as also the decision of this court on-Sukhvinder Kaur v. State of H.P.. AIR 1974 HP 35. (which we will refer to at an appropriate stage), the Court stated that the classification of candidates, who had received education from Class I to Class VII from a common rural school situated in any village and the students who had obtained such education in Municipal or urban area cannot be said to be rational and reasonable. 37. (which we will refer to at an appropriate stage), the Court stated that the classification of candidates, who had received education from Class I to Class VII from a common rural school situated in any village and the students who had obtained such education in Municipal or urban area cannot be said to be rational and reasonable. 37. The Court observed: "Before anyone becomes eligible to compete for admission to the medical college in the year 1982. it was incumbent upon such a student to clear the 12th standard examination. This is true in respect of all students seeking admission to the medical college irrespective of the fact whether they have been educated in the common rural schools or urban schools. Now the reservation is in favour of candidates from rural areas which expression is amplified to mean a candidate must have received education from Class 1 to 8 and passed 8th Class examination from a common Rural School situated in any village not having any Municipality or Notified Area or Town Area Committees. It would at once appear that even, candidate seeking admission to medical college must have studied upto the 12th class which would mean that even a candidate coming from the common rural school meaning thereby one who has taken his education upto 8th standard in such a school, yet subsequently he has joined a school which imparts education upto the 12th standard. Such a candidate has joined a school for a period of 4 years after having come out of the common rural school. It is nowhere suggested that this education for 4 years by a student comings from common rural school is in a school which is either un equal to the urban school or comparatively ill- equipped, ill-housed or ill-staffed. The necessary inference that follows from this is that all students seeking admission to the medical college have at least taken education for the last 4 years, in schools which are comparatively similar. What then is the relevance of the education taken from Class 1 to Class 8 for the purpose of admission to a medical college? Ft was conceded that the specialized subjects which will qualify a student for appearing at the entrance examination for admission to medical college are to be selected from the 11th standard onwards. What then is the relevance of the education taken from Class 1 to Class 8 for the purpose of admission to a medical college? Ft was conceded that the specialized subjects which will qualify a student for appearing at the entrance examination for admission to medical college are to be selected from the 11th standard onwards. It was also conceded that the syllabus for students from Class 1 to Class 8 either for urban schools or common rural schools is entirely identical and prescribed by the same authority, and this syllabus for students from Class 1 to Clas8 either for urban schools or common rural schools is entirely identical and prescribed by the same authority, and this syllabus includes subjects of general knowledge. It does not provide any specialized knowledge. Therefore, it passes comprehension as to what importance can be attached to education from Class I to Class 8 for admission to medical college which is divided by a span of other 4 years that of Class IX to Class XII (both inclusive) and in respect of which students coming from all schools are similarly situated, similarly circumstances and similarly situated. similar circumstanced and similarly treated and exposed to same educational environments without the slightest difference. The question then is: can the previous differentiation, if there be any. provide a rational basis for classification? The answer obviously is in the negative. The knowledge acquired in the years spent from Class I to Class VIII is of a general nature exposing the student to reading, writing, understanding simple arithmetic, general knowledge of History. Geography and introductory mathematics. The introductory know ledge of these subjects could hardly be said to equip a student for admission to the medical college. The education imparted in Class IX and X is little more than introductory. In these classes, the student is being prepared for deeper study. The selection of specialized subjects has to be made in Classes XI and XII and in respect of education To Classes IX to XII. All students being educated in ail schools are similarly situated, similarly circumstanced and similarly placed with no differentiation. The earlier handicap of education in Classes 1 to 8. if there be any. becomes wholly irrelevant and of no consequence and. All students being educated in ail schools are similarly situated, similarly circumstanced and similarly placed with no differentiation. The earlier handicap of education in Classes 1 to 8. if there be any. becomes wholly irrelevant and of no consequence and. therefore, cannot provide an intelligible differentia which distinguishes persons say students seeking admission being grouped together as having been educated in common rural schools from those left out namely the rest. would, therefore, follow as a corollary- that classification based on students coming from common rural schools meaning thereby educated upto 1 to 8th standard in common rural schools vis-a-vis students educated in urban schools from 1st to 8th standard would into provide intelligible differentia for founding a classification thereon. The classification in such a situation will be wholly arbitrary and irrational and therefore the reservation based on such a classification would be constitutionally invalid. " (emphasis supplied) 38. The Court further stated that in order to take advantage of reservation, students from nearby urban areas could join common rural schools on the periphery of urban agglomeration. Moreover, all rural schools without an exception could not be condemned as ill-housed, ill-staffed and ill-equipped. The Court then proceeded to enquire into the question as to the object sought to be achieved by such classification. 39. The Court stated: "What was the object sought to be achieved by the classification? It was said that students taking education in common rural schools from 1st to 8th standard are at a comparative disadvantage to those taking education in urban schools in the same standards. The caparison in our opinion is fallacious for the reason that the same Government prescribes standards of education, equipment, grants and facilities including the qualification of the staff for being employed in urban and rural schools imparting instruction from 1st to 8th Standard. However, as pointed our earlier, the knowledge acquired by the students while taking instruction in classes 1 to VIII has hardly any relevance to his being equipped for taking the test for entrance to the medical college. The real challenge would come in Standards XI and XII. In this behalf all students those coming from common rural schools and urban schools are similarly placed and similarly situated and yet by a reference to a past event wholly unrelated to the objects sought to be achieved, they are artificially divided." 40. The real challenge would come in Standards XI and XII. In this behalf all students those coming from common rural schools and urban schools are similarly placed and similarly situated and yet by a reference to a past event wholly unrelated to the objects sought to be achieved, they are artificially divided." 40. The Court concluded: "We are therefore satisfied that the classification is not founded in intelligible different and at any rate it has no rational nexus to the object sought to be achieved. The classification is irrational and arbitrary. The reservation based on such classification is constitutionally invalid." 41. In Dr. Narayan Sharma & Anr. v. Dr. Pankaj Kumar Lehkar & Ors.. 2000( 1) SCC 44. the Supreme Court again considered several cases on the point starting from MR. Balaji and laid down certain principles regarding classification. It stated: The following principles emerge from the above rulings: (a) A provision for reservation must be within reasonable limits. (b) There can be a reasonable classification based on intelligible differentia for the purpose of Articles 15(1). 15(4) and 29(2). (c) There can be reservation for persons belonging to areas which are socially and educationally backward. (d) A rural area is not a class by itself and cannot be considered to be socially and educationally backward merely because it is a rural area. (e) Admission to postgraduate courses should be strictly based on merit. (f) The merits of the candidates seeking admission to higher educational courses shall be judged by a uniform standard and for that purpose holding an entrance examination is the best method. (g) There shall be no dilution of standards in higher educational courses and in particular, postgraduate courses." 42. No doubt, the respondents strongly relied upon a decision of the Constitution Bench of the Supreme Court in Kumar Chitra Ghosh & Anr. v. Union of India & Ors.. AIR 1970 SC 35. In that case, reservation was made in Maulana Azad Medical College. Delhi for categories (c) to (h) in Rule 4 of the College Prospectus. It was held that reservation was not violative of Article 14. 15 and 19 of the Constitution. According to the Supreme Court, the reservation did not discriminate between citizens on grounds only of religion, race, caste. sex. place of birth or any one of them. Hence, it could not be said to be arbitrary or unreasonable. It was held that reservation was not violative of Article 14. 15 and 19 of the Constitution. According to the Supreme Court, the reservation did not discriminate between citizens on grounds only of religion, race, caste. sex. place of birth or any one of them. Hence, it could not be said to be arbitrary or unreasonable. Referring to Shri Ram Krishna Dalmia v. S.R. Tendolkar. AIR 1958 SC 538 and the twin test laid down therein, the Court stated: "...The first group of persons for whom seats have been reserved are the sons and daughters of residents of Union territories other than Delhi. These areas are well known to be comparatively backward and with the exception of Himachal Pradesh they do not have any Medical College of their own. It was necessary that persons desirous of receiving medical education from these areas should be provided some facility for doing so. As regards the sons and daughters of Central Government servants posted in Indian Missions abroad it is equally well known that due to exigencies of their service these persons are faced with lot of difficulties into the matter of education. Apart from the problems of language, it is not easy or always possible to get admission into institutions imparting medical education in foreign countries. The Culture. Colombo Plan and Thailand scholars are given admission in medical institutions in this country by reason of reciprocal arrangements of educational and cultural nature. Regarding Jammu and Kashmir scholars it must be remembered that the problems relating to them are of a peculiar nature and there do not exist adequate arrangements for medical education in the State itself of its residents. The classification in all these cases is based on intelligible different which distinguishes them from the group to which the appellants belong." 43. The court then proceeded to observe: It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility: From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. It is for it to lay down the criteria for eligibility: From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on a overall assessment and survey of the requirements- of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification, (emphasis supplied). 44. In D.N. Chanchala v. State of Mysore & Ors.. 1971 (2) SCC 293. the Court followed the decision in Kumari China Ghosh. It was observed that so long as the Rules for selection applicable to the Colleges run by the Government did not suffer from any constitutional or legal infrmity they could not be challenged as the Government could regulate admission to its own Institutions. The court also reiterated the observations in Kumari chitra Ghosh that the Government which incurred costs of running the Government Colleges was entitled to lay down criteria for admission in its own colleges and to decide the source from which admission would be made, provided of course that such classification would not be arbitrary and had rational basis and a reasonable connection with the object of the rules. 45. In Pradeep Jain (Dr., v. Union of India. 1984 (3) SCC 654. again the Supreme Court held that reservation on the basis of residence within the State and institutional preference could not violate Article 14 of the Constitution provided it was not excessive. 46. The Counsel also referred to a decision of the Division Bench of this Court in Sukhvinder Kaur. there, a reservation of 12 seats was made for candidates, who had passed Matriculation or Higher Secondary Examination from the schools located in rural area. The reservation was upheld by this court observing that the children in the rural area, who usually attended such schools were socially, economically and educational!} poor and they could not compete with the children of their age group coming from the urban area. 47. The reservation was upheld by this court observing that the children in the rural area, who usually attended such schools were socially, economically and educational!} poor and they could not compete with the children of their age group coming from the urban area. 47. The observations of Division Bench in Sukhvinder Kaur no doubt support the respondents, but we have to bear in mind the development of law thereafter and as to how the ratio laid down in Sukhrinder Kaur had bee commented upon and criticized by the Supreme Court. 48. In Suneel Jatley. the attention of the Supreme Court was invited to Sukhvinder Kaur. The Supreme Court stated: "Before we conclude, a reference to Suklninder Kaur v. State ofHimachal Pradesh. AIR 1974 Him Pra 35 mas be made. In that case the High Court upheld reservation of 12 seats for candidates who have passed matriculation or Higher Secondary examination from schools located in the rural areas. The aforementioned reservation was upheld by merely observing that it does not appear to be unreasonable inasmuch as the children in the rural areas wlw usually attend such schools are socially, economically and educationally poor and they cannot compete with the children of their age-group coming from the urban area. The judgment does not refer to the material on which the finding was based that the children attending the schools in rural areas cannot compete with children of the same age-group coming from the urban areas. That apart the situation in that case was that the students took education upto the Higher Secondary Examination in the schools situated in the rural areas and had thereafter straightway to compete for entrance to the medical college with students coming from urban areas. Such is not the situation before us. As pointed out earlier, in the instant case, the students in whose favour the reservation is made took education only upto the 8th standard in common rural school and for the last 4 years they were on par in every respect with students coming from urban areas. Therefore, this decision is of no assistance." (emphasis supplied). 49. The question came up for consideration again before a Division Bench of this Court in Vivek Sood & Anr. V HP University & Ors.. ILR 1986 HP 95. Therefore, this decision is of no assistance." (emphasis supplied). 49. The question came up for consideration again before a Division Bench of this Court in Vivek Sood & Anr. V HP University & Ors.. ILR 1986 HP 95. In that case, reservation of seats for candidates belonging to rural areas as defined in the College Prospectus was challenged as ultra vires Articles 14 and 15(4) of the Constitution. On behalf of the University, reliance was. inter alia. placed on Sukhvinder Kaur. It was also contended that the students belonging to rural areas were of weaker section of the society. Such reservation, therefore, was in consonance with the constitutional provisions. 50. Following Pradeep Tandon and Suneel Jatley, the Court held the reservation to the ultra vires Articles 14 and 15(4) of the Constitution and ordered to strike down. The Division Bench observed that in the light of the principles enunciated in and the elaboration of law on the subject as found in Pradip Tandon and Suneel Jaiely both of which dealt with the validity of reservation of seats in favour of candidates from rural areas, the decision in Sukhvinder Kaur could not be regarded as laying down the correct law. The Bench stated: "The reasoning on the basis of which the reservation was upheld, is with respect too brief to indicate whether Courts attention was precisely draw n to the provisions of Clauses (1) and (4) of Article 15 and to the requirements which are to be satisfied before Clause (4) could operate to save the reservation." 51. The learned Counsel for the respondents also invited our attention to a subsequent decision of the Division Bench of this Court in Asheesh Sharina & Anr. v. Himachal Pradesh University. Shimla & Ors.. AIR 1991 HP 39. In that case, reservation of seats to M.B.B.S Course to the candidates from backward areas who had passed two out of three examinations was not held to be arbitrary or unreasonable. It was observed that the fact that a candidate had passed at least two out of three examinations from the school located in backward area could legitimately give rise to the assumption that he had been associated with a backward area for a reasonable time, so as to have suffered some inherent deficiency on that account. Such a student, therefore. It was observed that the fact that a candidate had passed at least two out of three examinations from the school located in backward area could legitimately give rise to the assumption that he had been associated with a backward area for a reasonable time, so as to have suffered some inherent deficiency on that account. Such a student, therefore. could claim benefit of reservation and such reservation could not be challenged as violative of Articles 14 and 15(4) of the Constitution. The Court also observed that reservation founded upon backwardness of an area is permissible under the Constitution. 52. It. however, cannot be overlooked and ignored that nether Suneel Jatley decided by the Supreme Court nor Vivek Sood decided by this Court was brought to the notice of the Division Bench. In our opinion, the point is concluded by the above two decisions. 53. Mr. Rajeev Sharma. learned counsel vehemently argued that the Suneel Jatley. the question did not directly arise before the Supreme Court of 1(H2 examination, which has arisen in the present petitions. The question before the apex Court related to standard I to VIII. Wider observations made by the court in that case regarding educational facilities, equipment, and staffing pattern in rural areas and urban areas and comparison thereof were, therefore, more in the nature of obiter dicta and passing observation than ratio of the case. He also submitted that the decision on Suneel Jaitley was by a Division Bench of two Judges and Constitution Bench decision in Kumar Chitra Ghosh, which had dealt with an important aspect of financial burden by the Government for running Medical colleges had not been considered. According to the counsel, therefore, the decision in Suneel Jatley is per incuriam and this Court is bound by the decision in Kunwri Chitra Ghosh relied upon and followed in several cases. 54. In our opinion, however, the observations of the Supreme Court in Suneel Jatley are clear on the point. Again, in Vivek Sood. this Court clearly observed that such a classification would be arbitrary, unreasonable and the law lad down by this Court earlier in Sukhvinder Kaur could be said to be no longer good law. Moreover, the observations in Suneel Jaitley were followed from time to time. Recently, in Dr. Karayan Sharma. the Supreme Court quashed such reservation on the ground that it was violative of Article 14. 55. Moreover, the observations in Suneel Jaitley were followed from time to time. Recently, in Dr. Karayan Sharma. the Supreme Court quashed such reservation on the ground that it was violative of Article 14. 55. On all these grounds, in our opinion, the impugned provision must be held to be arbitrary and unreasonable. Since in our opinion, no such provision can be made. It is immaterial whether the provision of 60% seats in undergraduate programmes would be available to students having qualified 10+2 examination from the rural area school can be termed as "allocation" or "reservation". It does not make any difference since no such stipulation can be made for students, who have passed 10+2 examination from rural area. It must be held to be ultra vires both Articles 14 as well as 15(4) of the Constitution. 56. For the foregoing reasons in our considered opinion, all the petitions deserve to be allowed and are accordingly allowed. They provision for 60% reservation (or allocation) out of 85% of bonafide Himachalies for the students having qualified 10+2 examination from the rural area school in the First Year of B.V.Sc. and A.H. Five Years Course for the Session 2001-2002 is held arbitary. unreasonable and violative of Articles 14 and 15 (4) of the Constitution of India and is hereby quashed. Resultantly. admissions given by the University-respondent No. 2 to respondent No.3 to 15 or to any or to any other student on the basis of reservation (allocation) of 60% are hereby quashed and set aside. The respondent-University is now directed tol prepare Select List afresh in accordance with law on the basis of merits of the students ignoring 60% reservation (allocation). 57. The petitions are accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs.58. CMP So. 1493 of 2001 in CWP So. 833 of 2001 : Allowed, as prayed for. CM.P. stands disposed of. Cause title be corrected accordingly.