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Article 29(2) in The Constitution Of India 1949

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Calcutta High Court (Appellete Side)
Dr. Himanshu Aggarwal vs West Bengal University Of Health ... on 8 October, 2013
Author: Aniruddha Bose

11   08.10.13                          A.S.T. 187_of 2013.

                                    Dr. Himanshu Aggarwal
                     West Bengal University of Health Sciences & Ors.

                                Mr. Biswaroop Bhattacharya
                                Mr. M Malhotra
                                Mr. Santanu Chatterjee
                                Mr. Amitava Mitra
                                Mr. Shehashis Sen
                                                       ... For the Petitioner.

                                Mrs. Chama Mookherji
                                Mr. Surojit Roychowdhury
                                                ... For Added Respondent.

Mr. Subrata Talukdar Mr. Tulshidas Ray ... For the State Respondents.

Mr. Samim-ul-Bari ... For the University.

The writ petitioner in this proceeding is a candidate for Post Doctoral Medical Course in Rheumatology, under the West Bengal University of Health Sciences for which there are two vacancies, one from the general category and the other from the candidates coming from the in-service category. The petitioner comes from the general category. The vacancy in respect of the general category has been filled up. So far as vacancy from the reserved category of in-service candidate is concerned, relying on a judgment of the Hon'ble Supreme Court in the case of Preeti Srivanstava (Dr.) & Anr. Vs. State of M.P. reported in 1999 (7) SCC 120, it has been submitted on behalf of the petitioner that there cannot be reservation for in- service candidates in a Super Speciality course. Case of the petitioner is that in the overall selection process, his performance is far better than that of the in-service candidate who is sought to be given 2 admission from that category. The claims of the petitioner has been resisted by the respondents on two grounds. Preliminary objection has been taken that the petitioner cannot be entitled to question a separate entry process in the form of reservation for in-service candidates after having participated in the selection process, which provided for such reservation and this fact was known to him at the time of issue of interview notice. He participated in the selection process without any objection or protest. It is contended on behalf of the respondents that petitioner took a chance, and not having succeeded in the selection process, it is now not open to him to question certain terms or conditions of the selection process, of which he had full knowledge at the time of participation.

This stand of the respondents is founded on the principle of estoppel. But objection based on estoppel is really an objection founded on rules of evidence. If the defect pointed out in the selection process is fatal ex-facie, then it would be within the jurisdiction of the Writ Court to examine the validity of the selection process.

I shall accordingly test now as to whether such reservation for in-service candidates in a post-doctoral course, which admittedly is a super-speciality course, is valid or not. In a later judgment, K. Duraisamy & Anr, Vs. the State of Tamil Nadu & Ors. reported in 2001(2) SCC 538, a distinction has been made by the Hon'ble Supreme Court between reservation on the basis of affirmative action, as enshrined in Articles 15(4) and 16(4) of the Constitution of India and reservation in the form of allocation of seats for admission from different sources, not based on factors specified in the said Constitutional provisions. In this judgment, dealing with quota for in- 3 service candidates, it has been held :-

"That the Government possess the right and authority to decide from what sources the admissions in Educational Institutions or to particular disciplines and courses therein have to be made and that too in what proportion, is well established and by now a proposition well settled, too. It has been the consistent and authoritatively settled view of this Court that at the super speciality level in particular and even at the Post-Graduate level reservations of the kind known as protective discrimination in favour of those considered to be backward should be avoided as being not permissible. Reservation, even if it be claimed to be so in this case, for and in favour of in-service candidates, cannot be equated or treated on par with communal reservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the 4 quota reserved on communal considerations."

The other judgment relied on behalf of the respondents is a Constitutional Bench decision of the Hon'ble Supreme Court in the case of Saurabh Chaudri and Others Vs. Union of India and Others reported in (2003) 11 SCC 146. In this judgement, the issue of reservation has also been considered and in paragraph 108 of the report, it has been directed:-

"108. As regards the constitutional validity of institutional/regional/university wise reservation/preference, in view of this Court's emphasis on the need to strive for excellence which alone is in the national interest, it may not be possible to sustain its constitutional validity. However, the presently available decisional law is in support of institutional preference to the extent of 50% of the total available seats in the educational institutions concerned.

Conclusions (1) In the case of Central educational institutions and other institutions of excellence in the country the judicial thinking has veered around the dominant idea of national interest with its limiting effect on the constitutional prescription of reservations. The result is that in the case of these institutions the 5 scope for reservations in minimal.

(2) As regards the feasibility of constitutional reservations at the level of superspecilities, the position is that the judiciary has adopted the dominant norm i.e. "the higher the level of the speciality of lesser the role of reservation". At the level of superspecialities the rule of "equal chance for equal marks" dominates. This view equally applies to all superspeciality institutions. (3) As regards the scope of reservation of seats in educational institutions affiliated and recognised by State universities, the constitutional prescription of reservation of 50% of the available seats has to be respected and enforced.

(4) The institutional preference should be limited to 50% and the rest being left for open competition based purely on merits on an all-India basis.

(5) As regards private non-minority educational institution distinction between government aided and unaided institutions. While the Government/State can prescribe guidelines as to the process of selection and admission of students, the Government/State while issuing guidelines has to take into consideration the constitutional mandate of the requirement of protective discrimination in matters of reservation of seats as ordained by the decisional law in the country. Accordingly, the extent of 6 reservation in no case can exceed 50% of the seats. The inter se merit may be assessed on the basis of a common all-India entrance test or on the basis of marks at the level of qualifying examination.

       (6) The     position        with     respect      to    minority-aided

           institutions      is     that    they    are       bound   by   the

requirement of constitutional reservation along with other regulatory controls. However, the right to admit students of their choice being part of the right of religious and linguistic minorities, to establish and administer educational institutions of their choice, the managements of these educational institutions can reserve seats to a reasonable extent, not necessarily 50% as laid down in Stephens College case. Out of the seats left after the deduction of management quota, the State can require the observance of the requirement of constitutional reservation.

(7) As regards the unaided institutions, they have a large measure of autonomy even in matters of admission of students as they are not bound by the constraints of the demands of Article 29(2). Nor are they bound by the constraints of the obligatory requirements of constitutional reservation". Having considered the ratio of the judgements cited before me, I am of opinion that there is no bar per se in making institutional reservation in super speciality courses, subject to the overall limit on 7 the number of seats that can be kept reserved. The petitioner was also aware at the time of appearing in the selection process that there was one seat reserved for in-service candidate. He participated in the selection process without raising any objection on that count.

In such circumstances, I do not think any relief can be granted to the writ petitioner at this stage, as the nature of reservation he assails is in the nature of institutional reservation for in-service candidates, and extent of such reservation being kept within the limit set down by the Hoin'ble Supreme Court.

The writ petition shall accordingly stand dismissed. The interim order shall stand revoked.

On the prayer of the learned Counsel for the petitioner, there shall be stay of the operation of the judgment, retaining the interim order which has been passed in this matter earlier, till 22nd October, 2013.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the learned Counsel for the parties as expeditiously as possible, in compliance of usual formalities.

(Aniruddha Bose, J.)