WP/22205/2003 of B.HARSHA,MINOR Vs THE REGISTRAR on 10 December 2003

:ORDER

This Writ Petition raises an important question as to the procedure tobe adopted in the selection and admission to the seats earmarked under SpecialCategory. It is the bone of contention of the petitioner that once certainnumber of seats are earmarked for Special Category to be filled up from among the eligible candidates, the admission shall be made strictly on merits andthere is no further question of further following the rule of reservation. Onthe other hand, it is the stand of the respondent University that in terms ofFull Bench Judgment of this Court reported in M.AARTHI (Minor)ETC OTHERS VSTHE STATE OF TAMIL NADU AND OTHERS ( 2002 Writ Law Reporter 898) holdingthe Special Category seats for the candidates " Physically handicapped,Eminent Sportsmen, Children of freedom fighters and Children of Exservicemenbeing horizontal reservation and not vertical, these seats should also befilled up by following the rule of reservation.

2. The Government issues orders each year prescribing the number ofseats, source of admission, method of selection, eligibility norms etc., forvarious professional courses based on its policy. Such Government Order isissued in exercise of the power under Article 162 of the Constitution ofIndia. For admissions to the Engineering Courses for the academic year2003-2004, the Government issued the G.O.Ms. No.198 Education Departmentdated 30.5.2003. By that Government Order, the Government earmarked 132 seatsfor five Special Categories and 3% for Orthopaedically Physically Handicapped(Hearing Impaired (deaf)/Visually impared) out of total number of seat s foradmission to B.E.,/B.Tech.,/B.Arch., Courses. Based on the Government Order,the Prospectus is issued containing instructions.

3. Since the procedure adopted for admission to Special Categorynamely, Eminent Sports Person is in question, the relevant clause applicablealone is extracted hereunder:Clause 4.4. Special Categories:Since the Special reservation categories are beingconsidered by separate Committees, candidates areinstructed to send separate form along with mainapplication. They should fill the special reservationapplication and send it along with the mainapplication except for sports. They should alsoenclose a DD for Rs.100/- for each special reservationalong with the appropriate certificates. Ifappropriate certificates or supporting materials forspecial reservation claim are not enclosed with theSpecial reservation application then their claimunder such categories will not be considered.

Candidate seeking admissions against the specialreservation of seats under Item No.6 mentionedbelow for Eminent Sports Person should producethe main application and the special reservationapplication and a Demand Draft for Rs.100/- andcopies of the relevant certificates etc., inperson to the Secretary, TNEA as per Annexure IIwhich also contains selection procedure.Candidates belonging to Tamil Nadu only will beeligible for the special reservations:

Item No. Category Number of Seats

6 Eminent SportsPerson(International/ 30 12National/StateLevel Programmes)

4. According to the above clause, 30 seats are allotted to the various colleges under the Control of Director of Technical Education and 12seats are allotted to Anna University. Candidates seeking admissions againstthe special reservation of seats for Eminent Sports Person should submit themain application as well as the Special reservation application together witha Demand Draft for Rs.100/- They should also enclose the relevant certificatesevidencing their participation in the Sports. The format for specialreservation application is also provided in the Government Order. The saidformat is extracted as under:

SPECIAL RESERVATION APPLICATION

1. TNPCEE 2003 Reg.No.

2. Name of the Candidates

3. Special Reservation Item No. Code No. Name of applied for Reservation

4. Main Application No.

5. Details of DD/Challan DD No./ Date Amount IssuingEnclosed Challan BankNo.

Signature of the Candidate

5. Pursuant to the above Government Order, the information andinstructions to the candidates in regard to the admission to various courseswere published by the Director of Technical Education, Government of TamilNadu. The petitioner applied for admission to Engineering Course as againstthe seats earmarked for Eminent Sports Person. It is not in dispute thatconsidering his contribution to sports he was selected and was placed inSerial No. VII in the merit list. According to the petitioner, 12 seatsearmarked for Anna University should be filled up first from among thecandidates in the order of merit and if that be so, the petitioner shown asVII in the merit, ought to have been admitted in Anna University. Since therule of reservation was followed, the petitioner was not accommodated in AnnaUniversity. This procedure is contrary to various dictum laid down by theApex Court.

6. Per contra, it is the stand of the University empowered withprocess of selection, that a Full Bench of this Court in the Judgment M.Aarthi's case has held that the State is empowered to provide reservationsunder Special Category other than the reservation in Tamil Nadu Act 45 of1994, for Physically Handicapped, Eminent Sportsmen, Children of freedom fighters and Children of Ex-servicemen and such reservations are horizontaland not vertical. Further in terms of the law laid down by the Apex Court inthe judgment reported in ANIL KUMAR GUPTA VS STATE OF U.P. (1995(5) SCC 173)when the reservation is horizontal, the seats should be filled up only byfollowing the rule of reservation.

7. Before entering into discussion on the above, let me now considerthe binding nature of the prospectus. In so far as the law on binding natureof prospectus, a Division Bench of this Court reported in RATHNASWAMY DR.VSDIRECTOR OF MEDICAL EDUCATION (1986 WLR 207) may be usefully referred to.While laying down the law on the subject, the Division Bench has held asfollows:

A prospectus issued with regard to admission toeducational Courses is a declaration to thecandidates that a field for development ofeducational potentialities is available forexploration and that there could be a chanceof success. It is a piece of information. Butat the same time, we shall not belittle thesignificance of the need to set out in theprospectus itself a summary or an essence ofthe norms and rules which should guide and whichwill be adopted for selection of the competitionsin the field of exploration in educationaldevelopment or at least indicate in the prospectusthat there are norms and rules which shallgovern. It is highly desirable that a summaryor an essence of the relevant norms and rulesgoverning such admissions are set out in theprospectus themselves or their existence atleast is indicated therein. But anomission to do soshall not be taken advantage of by any one tonegate and ignore the very norms and rules"

8. A Division Bench of this Court in the judgment reported in MIDHUNANATHAN VS STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY, ETC AND OTHERS(1995 WLR 851)after analysing the various decisions has held in para 22(1)that the rules and norms contained in the prospectus are binding on theSelection Committee and the authorities and have to be strictly followed. Thebinding nature of the prospectus both on the Selection Committee and thecandidates applied for admission, is on the basis that it is a piece ofinformation containing the summary essence of norms and rules, that guide boththe Selection Committee and the applicant. After prescribing thequalification,eligibility norms, source of admission and method of selection,if any one of the parties should go beyond the prescribed procedure, thatwould adversely affect the right of other party. It is necessarily thereforethe Selection Committee should follow the procedures enumerated in variousclauses of the prospectus and shall not introduce any new element or procedureafter the prospectus is issued. Infact, once prospectus issued not evenamendment or addition to the prospectus either by way of Government Order or by way of any circular is permissible. This view has been emphasised in theFull Bench Judgment of Andra Pradesh High Court reported in ROMINI SUSANKURIAN VS STATE (A.I.R. 1992 A.P. 3 80) wherein it has been held as follows:

"... The prospectus issued by the University binds the candidates who seek admissionand unless any portion of the prospectusis held to be illegal, we cannot directeither amendment of the prospectus or consideration of the claim of a studentin a manner otherwise than that providedin the prospectus..."

9. With the above settled principles of law in mind, let me considerthe question raised in this Writ Petition. It is not in dispute that afterearmarking 42 seats for Eminent Sports Person, 30 seats are allotted to thecolleges under the Control of DOTE and 12 seats are allotted to AnnaUniversity. Selections were made from among the candidates applied foradmission against the seats reserved for Eminent Sports Person and merit listwas also drawn. 42 seats were filled from the merit list by further followingthe rule of reservation.

10. The question as to the entitlement of the State Government to

carve out a particular percentage of seats from the total number of seats tobe filled up under the Special Category and whether such reservation fallsunder either either Article 15(1) or 15(4) of the rule of reservation before alarger Bench of this Court in the judgment reported in 2002 WL 898 and thisCourt has held that such reservation shall be only under Article 15(4) andthat being so, it is a horizontal reservation and not a vertical reservation.

11. The question as to how the seats earmarked under horizontal reservation came up for consideration before the Supreme Court in the judgmentreported in ANIL KUMAR GUPTA ETC VS STATE OF U.P. AND OTHERS ( JT 1995(5) SC505). The Supreme Court was considering the Notification of the Governmentdated 17.5.1994. In that Notification, the U.P. Government reserved 5% oftotal number of seats for dependents of freedom fighter, 2% of seats forSons/Daughters of deceased/disabled soldiers, 2% of seats for physicallyhandicapped candidates, 3% of seats for candidates belonging to hill areas and3% of seats for candidates belong to Uttranchal areas, in all 15% of the seatsfor the above categories. The said Government Notification also directed thatthe reservation would be horizontal and the candidates of those categoriesselected on the basis of merit, would be kept under the categories ofScheduled Castes/Scheduled Tribes/Other Backward Classes/General to which theybelong and their admission would be adjusted against the category which thecandidate belongs. Since there was an ambiguity in the language employed inthe Government Order as to whether the said horizontal reservation was " overall reservations" or " compartmentalized reservations", the Supreme Courtafter considering the manner in which the seats are earmarked to be filled upunder horizontal reservation held as follows:

On a careful consideration of the revisednotification of December 17,1994 and the aforesaid corrigendum issued by the LucknowUniversity, we are of the opinion that in viewof the ambiguous language employed therein,it is not possible to give a definite answerto the question whether the horizontal reservationsare overall reservations or compartmentalizedreservations. We may explain these two expressions.Where the seats reserved for horizontal reser-vations are proportionately divided among thevertical (social) reservations and are not inter-transferable, it would be a case of compart-mentalized reservations."

It would have been better and the respondentsmay note this for their future guidance-thatwhile providing horizontal reservations, theyshould specify whether the horizontal reservationis a compartmentalized one or an overall one.As a matter of fact, it may not be totally correctto presume that the Uttar Pradesh Governmentwas not aware of this distinction between "Overallhorizontal reservation" and"Compartmentalizedhorizontal reservation" since it appears from thejudgment in Swan Gupta that in the first Notificationissued by the Government of Uttar Pradesh on May,17,1994, the thirty percent reservation for Ladieswas split up into each of the other reservations.For example, it was stated against backward classesthat the percentage of reservation in their favourwas twenty seven percent but at the same time,it was stated that thirty percent of those seatswere reserved for ladies. Against every verticalreservation, a similar provision was made, whichmeant that the said horizontal reservation in favourof ladies was to be a "compartmentalized horizontalreservation". We are of the opinion that in theinterest of avoiding any complications andintractable problems, it would be better thatin future the horizontal reservations arecompartmentalized in the sense explained above.In other words, the Notification invitingapplications should itself state not only thepercentage of horizontal reservation(s) butshould also specify the number of seats reservedfor them in each of the social reservationcategories, viz., ST.,ST.,OBC., and OC. If thisis not done there is always a possibility of oneor the other vertical reservation categorysuffering prejudice as has happened in this case.As pointed out hereinabove, 110 seats out of112 seats meant for special reservations havebeen taken away from the OC category alone and none from the OBC or for that matter, from SCor ST. It can well happen the other way alsoin a given year.

Now coming to the correctness of the procedureprescribed by the revised notification for fillingup the seats, it was wrong to direct the fifteenpercent special reservation seats to be filledup first and then taken up the O.C.(merit) quota(followed by filling of O.B.C., S.C., and S.T.Quotas). The proper and correct course is tofirst fill up the O.C. Quota (50%) on the basisof merit, then fill up each of the social reser-vation quotas i.e. S.C.,S.T., and B.C., the thirdstep would be to find out how many candidatesbelonging to special reservations have beenselected on the above basis. If the quota fixedfor horizontal reservations is already satisfied-in case it is an overall horizontal reservations-no further question arises. But if it is not sosatisfied, the requisite number of specialreservation candidates shall have to be takenand adjusted/accommodated against their respectivesocial reservation categories by deleting thecorresponding number of candidates therefrom(If, however, it is a case of compartmentalizedhorizontal reservation, then the process ofverification and adjustment/accommodation asstated above should be applied separately toeach of the vertical reservations. In such acase, the reservation of fifteen in favour ofspecial categories, overall, may be satisfiedor may not be satisfied)"

12. Though the seats reserved for special category is horizontalreservation, filling up of seats depends upon the fact as to whether it is an"overall horizontal reservation" or "compartmentalized reservation".According to the Apex Court, the proper and correct course to fill up the O.C.Quota on the basis of merit, then fill up each of the social reservationquotas i.e. S.C.,S.T., and B.C., finally to find out how many candidatesbelonging to the special reservations have been selected on the above basis.If the quota is fixed for horizontal reservation is already satisfied, then itis an overall horizontal reservation and no further question arises. But ifit is not so satisfied, the requisite number of special reservation candidatesshall have to be taken and adjusted/accommodated against their respectivesocial reservation categories by deleting the corresponding number ofcandidates therefrom. It is not the case of the respondent University thatseats earmarked for OC/BC/MBC/SC/ST have not been filled up though candidatesare available. Infact, a number of seats are still vacant to be filled up invarious Engineering Colleges. If that be the case,following the further ruleof reservation is not permissible, as in the case on hand, the reservation is

13. That apart, the procedure adopted to follow the rule ofreservation as against the seats earmarked under special categories was viewedby the Apex Court in different angle in the judgment reported in S.SATHYAPRIYAVS STATE OF ANDHRA PRADESH ( 1996(9) SCC 466). That was a case of medicaladmission, more particularly reservation of 5% for the special categories.The Apex Court considered 5% of reservation for special categories in thelight of the Act 45/1994 whereby the State Government reserved 69% forBC/MBC/SC/ST leaving 31% of the seats for open category. While considering69% of such reservation, the Supreme Court has observed that if this 5% isalso added to 69% of reservation under Article 15(4) of the Constitution, thetotal number of seats reserved under 15(4) would be 74% Such reservation wouldbe at the cost of the merit. The finding of the Apex Court on this aspect isas follows:

"... Secondly, the 54 seats earmarked to be filledup from among the members of the special categoriesare deducted from the total number of seats.(These54 seats are in lieu of 5% reservation in favourof certain special categories in Tamil Nadu). Inour opinion, this is wrong. This 5% reservationfor the said special categories cannot be inaddition to 69% reservation whereas 69% reservationis under Article 15(4) of the Constitution, the5% reservation for special categories is underArticle 15(1). As held in Indra Sawhney vsUnion of India, the seats reserved under Article15(1) (Corresponding to Article 16(1)) should haveto be spread across the social reservationcategories. In other words, while the reservationsmade under Article 15(4) can be broadly describedas vertical reservations, the reservations providedunder Article 15(1) can be described as horizontalreservations. The students admitted againsthorizontal reservation (5% quota in this case)will necessarily belong either to open competitioncategory or to the BC/MBC/SC/ST category. Onceselected they have to be adjusted against theirrespective quotas prescribed under Article 15(4).Thus, in law, these 54 seats must also be deemedto be now available. The students who will beadmitted against these 54 seats will have to bespread across the appropriate categories asmentioned above, which would necessarily meanelimination of some students at the bottom ofthe respective OC/BC/MBC/SC/ST list to theextent necessary. At this stage, however, we arenot inclined to cancel any of the admissionsalready granted. We, therefore, do not proposeto interfere with the method adopted by the

respondents in filling up these 54 seats at thisstage though it means a total reservation of69+5 = 74% reservation-an aspect rightlyemphasised by Shri Vaidyanathan. Our concernat present is to provide for the 62 meritstudents who have been deprived of admissionbecause of the 69% reservation provided bythe said Tamil Nadu Act without disturbing theadmissions already made"

14. Infact, the Supreme Court did not approve the 5% reservation atall as would affect the meritorious candidates of their entitlement quota.But having considered the pendency of the challenge to the validity of the Act45/1994, the Apex Court did not disturb the admissions already made and alsoallowed the State Government to continue the same procedure hitherto followedby the State in earmarking certain number of seats for special category. Thatis how the specific number of seats are provided for special category. Afterthe Full Bench Judgment of this Court referred to earlier, the StateGovernment is entitled to reserve seats for special categoryonly in respect of Physically handicapped, Eminent Sports Person, Children offreedom fighters and Children of Ex-servicemen.

15. The question as to how the State or for that matter Universityshould follow the reservation while filing up the seats reserved under SpecialCategory, also came up for consideration before a Division Bench of this Courtreported in MIDHUNA NATHAN VS STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARYETC AND OTHERS(1995 W.L.R 851). In para 22(8) the Division Bench has held asfollows:

"There cannot be selection on the basis ofcommunal reservation from among the EminentSportsmen"

16. Though the Full Bench of this Court considered the specialcategory reservation in the light of Tamil Nadu Act 45/1994 and held thathaving reserved 69% of the seats under social reservation, it cannot inexercise of the power under Article 162 of the Constitution of India, reserveseats for widows, deserted woman and candidates whose parent/parents has/havesuffered for the cause of development of Tamil and contributed towardsprotection of Tamil etc., and approved the reservation only for Physicallyhandicapped, Eminent Sports Person, Children of freedom fighters and Childrenof Ex-servicemen, the question as to how the seats earmarked for specialcategory to be filled up was not discussed except holding that specialreservation is horizontal and not vertical. The law on the issue is thejudgment of the Apex Court in ANIL KUMAR GUPTA VS STATE OF U.P. ( 1995 (5)SCC 173) Going by the Prospectus, no procedure is prescribed for following theRule of Reservation in the Special Category of seats. Only a specified numberof seats are earmarked to be filled in only on the basis of merit. In thatcase it is "overall horizontal Reservation". When the reservation is "overallhorizontal reservation" applying the rule of reservation for the seats earmarked for Special Category is bad in law.

earmarked for Special Category is bad in law.

17. There is one another aspect of the matter. The prospectus isbinding on both the Selection Committee and the candidates. From theprospectus and the special application which has been extracted in the earlierportion of the order, there is no clause indicating the candidates that evenfor seats earmarked under special category, rule of reservation will befollowed. In the absence of such indication also, the procedure in filling upthe special category of seats particularly in the Eminent Sports Personcategory by following the rule of reservation is not in conformity with theprospectus and adding new clause into the prospectus without there being anyspecific Government Order in this regard. For the above reasons, I hold thatthe Selection Committee is empowered to consider all the applications receivedunder special category for admission of seats, place them in the order ofmerit, select and allot the candidates only in the order of merit withoutthere being any further selection on the basis of rule of reservation. Forall the above reasons, the petitioner should succeed. Coming to the relief,the selection and admission were over on 30 .9.2003. By the procedure adoptedby the respondents, the petitioner could not be allotted a seat in AnnaUniversity. In view of the fact that the 12 seats earmarked for AnnaUniversity, have been filled up and the petitioner has been allotted to SriVenkateswara Engineering College, Sriperumbudur and is undergoing the course,I am not inclined to interfere with the selection already made. With theabove observation, the Writ Petition is disposed of. No costs. Consequently,W.P.M.P.No.27502/2003 is closed.

Index: YesWebsite: Yes

vbs

To

1. The RegistrarAnna UniversityChennai.

2. The Chairman of SportsAnna UniversityChennai

3. Secretary to GovernmentGovernment of Tamil NaduHigher Education DepartmentFort St. George, Chennai.9.