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2002 DIGILAW 67 (MAD)

Minor S. Muthu Senthil, Appellant/Petitioner v. State of T. N. and others, Respondents. And L. Chandrakumar v. Govt. of T. N.

2002-02-05

B.SUBHASHAN REDDY, K.P.SIVASUBRAMANIAM, K.RAVIRAJA PANDIAN

body2002
Judgement B. SUBHASHAN REDDY, C. J.:- At issue is the cosntitutionality of the Government action in providing rural reservation for admission to professional courses conducted by the Government and self-financing colleges in the State of Tamil Nadu. 2. Excepting W.P. No. 16595 of 2001 and W.A. No. 2624 of 2001 arising therefrom, which relate to admission to law course, all other writ petitions relate to medical admission. The genesis for this litigation is G.O. No. 603 (Education), dated 30-8-1996, by which a high level committee was appointed to review the standard of education, basic facilities etc. The high level committee had recommended to the Government to reserve 15% of the seats for the students studying in panchayat schools in rural areas. The premise on which such recommendation was made is said to be the disparity in opportunity in securing admissions to professional courses between the students studying in the schools located in rural areas as compared to that of urban areas. According to the high level committee, the students of rural areas were at disadvantaged position than their counter-parts in urban areas. Firstly, such facility of special reservation was made available to engineering students in G.O. Mis. No. 261. By G.O. (Rt) No. 600, Health and Family Welfare Department, dated 5-12-1997, the same was extended even for medical students. Later, it was extended to law course also. The above special reservation of 15% to rural students was increased to 25% by G.O. Ms. No. 171, Health and Family Welfare Department, dated 6-6-2001 for M.B.B.S. and B.D.S. courses and so far as the law course is concerned, it was by G.O. Ms. No. 35, Law Department, dated 12-7-2001. In some matters, only the escalation of special reservation from 15% to 25% is challenged while in other cases, the scheme of special reservation itself is under challenge. 3. When the matters came up for hearing, it was submitted on behalf of the Government that the lis is no more res integra in view of the Division Bench judgment of this Court in Navarasam Matriculation Higher Secondary School - Parents Teachers Association v. State of Tamil Nadu, (1998) 2 CTC 129 . It was also brought to our notice that the said judgment of the Division Bench was followed by a learned single Judge of this Court in A. Naufal Rizwan v. State of Tamil Nadu, (1999) 3 CTC 253. It was also brought to our notice that the said judgment of the Division Bench was followed by a learned single Judge of this Court in A. Naufal Rizwan v. State of Tamil Nadu, (1999) 3 CTC 253. On behalf of the petitioners, the judgment in Radhey Shyam Singh v. Union of India, (1997) 1 SCC 60 : (AIR 1997 SCC 1610) was cited. The Division Bench having considered the contentions advanced on either side, was of the considered view that the matter should be referred to the Full Bench and order of reference to that effect was passed on 30-11-2001 and that is how the Full Bench heard the matters. 4. On behalf of the petitioners, the arguments were led by learned counsel M/s. Karuppan, C. Selvaraj, Paul Vasanthakumar and Ms. Radha Gopalan. Other learned counsel adopted their arguments. On behalf of the Government, Mr. R. Muthukumara-samy, learned Additional Advocate General, has countered the petitioners' arguments. 5. The question of providing reservation - be it in educational institution or public employment - had been the subject-matter of controversy since inception. Whether reservation for Scheduled Castes and Scheduled Tribes should be provided castewise and even if the said categories could be provided reservation castewise, can that castewise consideration be extended to backward class, was the subject-matter of debate and adjudication in several landmark judgments rendered by the Supreme Court. Elucidation of the said judicial precedents is not necessary for this adjudication. But all such aspects relating to reservation and particularly, relating to reservation to backward, classes were considered by a nine-Judge Bench of the Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477 . The aspects of reservation under Article 15(4) as also Article 16(4) of the Constitution were considered comprehensively. Dealing with the vertical reservation, it was held that as a rule, the reservation on the whole should not exceed 50% unless extraordinary exceptions can be carved out. To get over the same, Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation Of Seat In Educational Institutions And Of Appointments Of Posts In The Services Under The State) Act, 1993 (Tamil Nadu Act 45 of 1994) has been enacted. But the constitutional validity of the same is pending adjudication before the Supreme Court. To get over the same, Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation Of Seat In Educational Institutions And Of Appointments Of Posts In The Services Under The State) Act, 1993 (Tamil Nadu Act 45 of 1994) has been enacted. But the constitutional validity of the same is pending adjudication before the Supreme Court. The same is a question apart in the instant batch as what is relevant for consideration is the horizontal reservation for rural students from among the reserved categories of S.C./S.T., M.B.C. and B.C. 6. The contention of the learned counsel for the petitioners is that students studying in panchayat schools located in rural areas cannot form a homogenous class and that is not protected by Article 15 of the Constitution and such a classification cannot justify the discrimination and that Article 15(4) of the Constitution cannot protect the impugned Governmental action. They also submitted that Article 14 of the Indian Constitution cannot also be invoked as there is no reasonable classification and that there is no nexus for the object to be achieved. Alternatively, it is also contended by the learned counsel for the petitioners that even assuming that 15% reservation can sustain, there is absolutely no justification for increasing the percentage of rural reservation from 15% to 25% on the ground of prospectivity of such later notification issued after the entrance examination has been conducted. The learned Additional Advocate General, countering the above arguments, submits that there is no reservation provided on the basis of the residence in rural areas and that the classification is drawn on the basis of the institutions categorising them into educational institutions located in urban areas and those of rural areas and there is a valid classification protected by Article 15(4) of the Constitution as the students in rural areas are socially, educationally and economically backward and because of the said backwardness, they are unable to compete with the urbanites and as urbanites were knocking away majority of the seats in professional courses and to secure equal rights and opportunities to the rural students, the Government has issued the orders and that the Government action is valid in not only providing 15% but also increasing the same to 25%. He submits that while there is a high level committee's report for sustaining 15% reservation, even for the differential 10%, i.e. 15% to 25%, there is material data available to sustain the said increase even though it is not backed by any high level committee's report. It is also the contention of the learned Additional Advocate General that the candidates who have appeared basing upon the prospectus which indicated 15% rural reservation and having not secured the admission, cannot now turn back and challenge the 15% reservation. In support of his proposition, he relies upon the judgment of the learned single Judge in Bharathi v. The Secretary to Govt. Health and Family Welare Dept., Chennai, (2001) 2 Mad LJ 311. The learned counsel on both sides have cited judicial precedents. 7. (i) In P. Rajendra v. State of Madras, AIR 1968 SC 1012 , the Supreme Court held that admissions to M.B.B.S. course in the State of Tamil Nadu on districtwise basis was unconstitutional. At the said time, there were eight medical colleges in the State of Tamil Nadu. Of them, three were situated in the City of Madras, and one each in Madurai, Chingleput, Coimbatore, Tanjore and Tirunelveli Districts. The total number of seats available were 1125 as against which 7000 students applied for admission during the year 1967-68. The said selection on districtwise basis was challenged and the Supreme Court upheld the challenge holding that there was no nexus for such classification. While striking down districtwise selection provided by Rule 8 thereof, the Supreme Court upheld Rule 5 which provided reservation to the backward classes, repelling the attack that it was caste based and explaining that the caste factor was based upon social and educational backwardness. (ii) In Periya Karuppan v. State of Tamil Nadu, AIR 1971 SC 2303 , which also arose from this State, the complaint was the unit-wise selection to M.B.B.S. course. The above case came to be filed before the Supreme Court, as the State of Tamil Nadu even though followed the ratio laid down by the Supreme Court in Rajendran's case ( AIR 1968 SC 1012 ) (supra) for the academic years 1967-68, 1968-69 and 1969-70, went back and divided the State into five units for the purpose of admissions to M.B.B.S. course. While Madras City was constituted as one unit, each of other medical colleges in the Mofussil was constituted as a separate unit. There was thus six units created in the State for the purpose of admissions into M.B.B.S. course. In respect of each one of the Units, a separate Selection Committee was constituted. The intending applicants were asked to apply to anyone of the Committees, but they were advised to apply to the Committee nearest to their place of residence possible. They were told that if they apply to more than one Committee, their applications will be forwarded by the Government to only one of the Committees. The Supreme Court struck down the said unitwise selection on the ground that there was no rationale in such classification and that there was no reasonable nexus with the object intended to be achieved. It was held that the object intended to be achieved is to select the best candidates for being admitted to Medical Colleges and by unitwise selection, the said object cannot be satisfactorily achieved. It was held that unitwise distribution of seats was violative of Articles 14 and 15 of the Constitution. (iii) In State of U. P. v. Pradip Tandon, AIR 1975 SC 563 , the Supreme Court was dealing with the reservations made in favour of candidates from rural, hill and Uttarkhand areas. The reservation for the rural area was set aside on the ground of there being no classification based on the residents between the students coming from within the State and others coming from outside and that object of providing medical education to students in Uttar Pradesh to secure the best possible students for admission to those Colleges would be defeated. While considering the contentions, the ratio laid down by the Supreme Court in ajendran's case ( AIR 1968 SC 1012 ) (supra) was followed. The Supreme Court held, "The reservation for rural areas cannot be sustained on the ground that rural areas represent socially and educationally backward class citizens. This reservation appears to be made for the majority population of the State, 80% of the population of the State cannot be a homogenous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. This reservation appears to be made for the majority population of the State, 80% of the population of the State cannot be a homogenous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. Poverty is found in all parts of India." Drawing a distinction so far as hill and Uthrakand areas are concerned, it was held that the hill and Uthrakand areas are citizens of socially and educationally backward classes of citizens coming within the protection of Article 15(4) of the Constitution. (iv) In Jagdish Saran v. Union of India, AIR 1980 SC 820 reservations were made to medicos graduated from Delhi University to the extent of 70%. In a three Judge Bench, the majority decision is to the effect that there was no nexus for such reservation on the basis of the education in Delhi University. (v) In Nishi Maghu v. State of J. and K., (1980) 4 SCC 95 : ( AIR 1980 SC 1975 ), the Supreme Court has struck down in the reservations made on the basis of classification for rectification of regional imbalance while upholding reservation for areas adjoining actual line of control and bad pockets. The principles laid down are on the same analogy to Pradeep Tondon's case ( AIR 1975 SC 563 ) (supra). (vi) To the same effect is the legal principle enunciated by the Supreme Court in Arti Sapru v. State of J. and K., AIR 1981 SC 1009 . Quoting the decisions in Nishi Maghu's case ( AIR 1980 SC 1975 ) (supra) and Pradip Tandon's case (AIR 1975 SC 653) (supra) with approval, the Supreme Court held that rectification of regional imbalances was not based upon any valid classification and would not fit in the protective umbrella under Article 15(4) of the Constitution thus violating the equality clause. (vii) In Dinesh Kumar v. Motilal Nehru, Allahabad, AIR 1985 SC 1059 , it was held that admission to medical course on the basis of marks obtained at qualifying examinations held by different universities is violative of Article 14. In the said case, the admissions were made not on the basis of marks obtained at the entrance examination conducted by Government of India or Indian Medical Council on All India basis but were made on the basis of evaluation made by respective Universities of different States. In the said case, the admissions were made not on the basis of marks obtained at the entrance examination conducted by Government of India or Indian Medical Council on All India basis but were made on the basis of evaluation made by respective Universities of different States. (viii) In Greater Bombay Municipal Corporation v. Thukral Anjali, AIR 1989 SC 1194 , collegewise institutionalised preference was held to be violative of Article 14 of the Constitution. (ix) Same is the principles laid down by the Supreme Court in Ahmedabad Municipal Corporation v. Nilaybhai Thakur, AIR 2000 SC 114 where Rules were framed restricting admission only to those who have acquired qualification from institutions situated within the Municipal limits. The classification limiting admissions only to candidates from institutions within the Municipal limits was held to be arbitrary not having any nexus with the object. (x) Yet another judgment of the Supreme Court highlighting the said aspect is Parents Association v. Union of India, AIR 2000 SC 845 , in which a clear distinction is laid between the reservations to Scheduled Tribes of Andaman and Nicobar Islands and the persons, who had settled after 1942, with 10 years education in islands. The Supreme Court held that only the reservations to Tribals fall within the sweep of Article 15(4) and not the persons, who had migrated to the islands and had 10 years education. In the said case, reservations were carved out not only for Tribals but also for others. But the Supreme Court made it so specific in paragraph 5 of the judgment, which we feel apt to extract: "We may make it clear, even at the outset, that the 'quotas' fixed in the various proceedings, except the quota fixed for Tribals, do not fall under Article 15(4) at all. The question of validity of the quotas for the Central Government servants, the pre-1942 and post 1942 settlers and the 10 year old is to be considered on the basis of Article 14 and not under Article 15(4)." (xi) Even though Radhey Shyam's case ( AIR 1997 SC 1610 ) (supra) dealt with recruitment to a service, the analogy is applicable to the instant cases. In the said case, examination was held for selection to non-technical class 3 posts in the departments of Government of India in the subordinate offices on zonal basis. In the said case, examination was held for selection to non-technical class 3 posts in the departments of Government of India in the subordinate offices on zonal basis. It was held that there was no nexus between the process of zonewise selection and the object to be achieved and that the process of selection envisaged in the advertisement in question would lead to discriminatory results because of adopting the said process of zonewise selection and would result in the devaluation of merits at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently, the rule of equal chance for equal marks would be violated. The principles laid down by the earlier decisions of the Supreme Court in Rajendran's case ( AIR 1968 SC 1012 ) (supra) and A. Periakaruppan's case ( AIR 1971 SC 2303 ) (supra) were followed.