Supreme Court Writ Petition (civil) 29 of 2003

CASE NO.:
Writ Petition (civil) 29 of 2003

PETITIONER:
Saurabh Chaudri & Ors.

RESPONDENT:
Union of India & Ors.

DATE OF JUDGMENT: 04/11/2003

BENCH:
Dr. AR. Lakshmanan

JUDGMENT:
J U D G M E N T
WITH

WRIT PETITION(CIVIL)NOS.54,57,68,69,84,85,89,91,
95, 98, 99 & 100 OF 2003

AND
CIVIL APPEAL NO.8581 OF 2003
(Arising out of S.L.P. (Civil) No. 1347 of 2002)

Dr. AR. Lakshmanan,J.
While concurring with the conclusion arrived at by Hon’ble the Chief
Justice, I would like to add the following few lines for streamlining the policies and
processes for admission to Medical Courses and other Professional Courses. The
issues and options are discussed below:
Every year during the admission season several lakhs of students undergo
immense suffering and harassment in seeking admission to Professional Courses
caused by uncertain policies, ambiguous procedures and inadequate information.
The miseries of students and parents are escalating year after year due to
boundless expansion in the number of professional institutions and their intake
capacity, emergence of a large variety of newer disciplines and mobility of
students seeking admissions beyond the boundaries of States. The students who
are about to complete their high school education go through a period of acute
anxiety caused by the uncertain situation about their chances for further
education. The number of qualified students wanting to go for higher studies has
been swelling largely motivated by hopes of better economic security and partly
by a desire to attain greater upward social mobility. Then begins their trauma due
to many prevailing unfair practices in admissions and devious ways of fee
collections exploiting the anxiety of students and uncertainty of procedures. Most
of the efforts to deal with these problems are ad-hoc in nature often decided
under judicial orders. Different State and Central authorities take many different
actions often leading to severe inconsistencies. There is substantial scope for
streamlining the admission process, even within the regulatory powers of the
authorities, provided these issues are not dealt with on an emergency basis
during the admission season but done in a co-ordinated and comprehensive
manner ahead of time.
ISSUE NUMBER ONE:
ENTRY QUALIFICATION:
For admissions to under-graduate programmes, there are several
different eligibility norms among the different categories of institutions and
among the various States. Some are based on Twelfth Standard marks or grades
only, some are based on the Entrance Examination only, and some are
determined by a combination of these with different weightages. There is endless
number of justifications for each of the above, confusing the students from
different parts of the country.

The preferred option, in my view, should be for a designated agency or
the University concerned to conduct the entrance examination for professional as
well as non-professional institutions in the specified subjects, (an option
suggested by this Court). The marks awarded in those subjects should be the
basis for determining the merits of the students for admission to the institutions to
which they apply.

ISSUE NUMBER TWO:
UNPLANNED GROWTH OF INSTITUTIONS
The growth of the Professional Institutions has been at an geometrical rate
during the last five years. During recent years the expansion of educational
facilities for higher education has been nearly exclusively in the private unaided
sector due to the financial incapacity of Governments.
Those who have ventured to start the new institutions are motivated by
commercial interests and not by educational and social interests. Political
considerations have become paramount in sanctioning of colleges. There has
been a high level of exploitation of students in certain disciplines through
unethical and illegal collection of unauthorized payments. The discontent among
the meritorious students is simmering also because only those, even with poor
competence, but who could pay high illegal amounts can get into many
institutions.

OPTIONS:
1. The country needs to evolve urgently a predictable pattern of growth for
the Higher Education system in Technical, Managerial, and other Professional
disciplines as well in Science and Humanities at least for the next five years. The
present level of ad-hoc approach and stampede should be eliminated.
2. The national blue print and the road map for the development of
professional education should be based on maintaining credible level of quality
standards and anticipated demand structure in economic and social sectors.

ISSUE NUMBER THREE:
FEE STRUCTURE:
This Court states: “A rational fee structure should be adopted by the
Management, which would not be entitled to charge a capitation fee. Appropriate
machinery can be devised by the State or University to ensure that no capitation
fee is charged and that there is no profiteering.”

OPTIONS:
One possible remedy is to make a rule under the Prevention of the
Capitation Fee Act that collecting any fee that was not previously announced in
the college publications and any fee collected without a formal receipt should be
punishable offences. This rule should be strictly enforced.
ISSUE NUMBER FOUR:
CERTIFICATES HASSLES:
When we consider the size of our country and the large number of
institutions and huge volume of applicants, the man hour and money lost in
running around for getting the certificates during the admission season must run
into equivalent of several crores of rupees. A more hassle-free system for
authenticating the required information from students should be evolved.

OPTIONS:
Every student be provided with a basic identity certificate while he/she is in
the higher secondary stage (10th to 12th std). This should provide all essential
information such as date of birth, community, domicile, photo identity etc.,
authenticated by a designated official. This should be acceptable for admission
requirements in any institution and in any State in India.

Superspeciality Institutions and Institutions where
highly skilled Training/Education is imparted:

On the issue whether there can be Article 15(4) reservations in super-
speciality courses, this Court was categorical when it declared that there could
not be any reservation at the level of super-specialisation in medicine because
any dilution of merit at the level would adversely affect the national interest in
having the best possible at the highest level of professional and educational
training.”

Similar view was already taken by this Court in Pradeep Jain V. Union of
India, AIR 1984 SC 1420.

In similar vein, in Jagdish Saran vs. Union of India, AIR 1980 SC 820,
this Court observed that Merit must be the test when choosing the best,
according to this rule of equal chance for equal marks. This proposition has
greater importance when we reach the higher levels of education for postgraduate
courses. This Court further observed that the host of variables influence the
qualification of the reservation as one factor deserves great emphasis, the higher
the level of the speciality the lesser the role of reservation.

In the case of Article 15(4) reservations, this Court has made it clear that
the claims of national interest demands that these reservations can never exceed
50% of the available seats in the concerned educational institutions.

The view was approved by this Court in the case of Indra Sawhne
y V.
Union of India. If one looks at this issue in the light of the spirit of the ratios laid
down in Preeti Srivatsava v. State of M.P., AIR 1999 SC 2894 and in AIIMS
Students Union v. A.I.I.M.S., AIR 2001 SC 3262, one would come to the
inevitable conclusions that the constitutional reservations contemplated under
Article 15(4) should be kept at the minimal level so that national interest in the
achievement of the goal of excellence in all fields is not unduly affected.

Of course, as between the reserved category candidates, there should be
inter-se merit observed. This has been emphasised by this court in several
cases.
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 concerned educational institutions.
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 scope for
reservations is minimal.

2) As regards the feasibility of constitutional reservations at the level of super-
specialities, the position is that the judiciary has adopted the dominant norm, i.e.,
“the higher the level of the speciality the lesser the role of reservation”. At the
level of super-specialities the rule of “equal chance for equal marks” dominates.
This view equally applies to all super-speciality 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 institutions distinction
between government aided and unaided institutions. While 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 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 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.

Before parting with this case, I am of the opinion that the younger
generation in our society nurturing fond hopes and aspiration for their future
professional careers should feel it as a pleasurable experience to explore the
available options in higher education. They should be spared from the mental
torture due hassles and unsavoury experiences in getting to the first base. To the
extent possible they should be made to feel that they are part of one nation.
Tensions and frustrations at their impressionable age will surely result in a society
with distorted and negative values damaging the foundations of a healthy society.
The policies and procedures for admissions should be viewed from the larger
impact on the future of India.