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Can government exempt management seats of private colleges from ambit of horizontal reservation? SC to decide

Murali Krishnan

Can the government exclude management seats in private unaided medical colleges from the purview of horizontal reservation.

The Supreme Court of India will decide this issue as it issued notice in an appeal by State of Punjab against a judgment of the Punjab & Haryana High Court

Background

By a notification dated February 6, 2018, the State of Punjab notified the commencement of the admission process for MBBS/BDS courses in Medical/Dental institutions in the State of Punjab. Para 16 of the said notification provided for reservation in Government Medical/Dental colleges.

A quota of 1% was prescribed for sportspersons and a quota of 1% each was prescribed for children/ grandchildren of terrorist affected persons (TA) and children/grandchildren of Sikh riots affected persons (RA).

Para 17 of the said notification pertained to admission to private institutions and clause (ii) thereof prescribed reservation in Government/management quota seats. Although 1% quota was provided for migrants from Jammu & Kashmir due to terrorist violence, no quota was provided for sportspersons or TA/RA.

Certain students challenged the non-inclusion of reservation for sportspersons and TA/RA in private institutions by filing writ petitions in the Punjab & Haryana High Court.

The High Court allowed the writ petitions by its judgment in Bani Suri and another v. State of Punjab and others. By that judgment, the Court held that the reservation applicable to Government institutions would apply to private institutions as well as there was no rationale for not extending the reservation to the private institutions when entire admission process flowed from a centralized procedure based on Government instructions.

The said judgment was given effect to and a fresh notification was issued for the academic session 2018 providing for reservation for sportspersons and TA/RA in private institutions in the Government quota seats as well as in management quota seats on lines of reservation provided in Government Medical/Dental institutions.

Thereafter, for the academic session 2019, the State of Punjab commenced the admission process to Medical/Dental institutions through a notification dated June 6, 2019. This notification was identical to Notification dated February 6, 2018, inasmuch as, in para 16 relating to admission to private institutions, no reservation was provided for sportspersons and TA/RA.

Thus, writ petitions were filed, primarily on the basis of the judgment Bani Suri case. During the pendency of the writ petitions, the State of Punjab issued a Corrigendum dated July 11, 2019, replacing the earlier para 16. As per the corrected notification, 1% quota was prescribed for sportspersons and 1% quota each was prescribed for TA/RA, but the same was confined to the Government quota seats only.

However, for the management quota seats, apart from the reservation for Scheduled Castes, Backward Classes, Physically Handicapped/Orthopedically Handicapped, 1% quota was prescribed for migrants from Jammu & Kashmir due to terrorist violence. But no such reservation was provided for Sports and TA/ RA in management seats of private colleges.

Judgment of Punjab & Haryana High Court

The Punjab & Haryana High Court held that the State cannot exempt management seats in private institutions when it comes to the horizontal reservation as in this case. Such an act would attract criticism of arbitrariness. The order reads:

“Section 6 of the 2006 Act, prescribes for reservation for categories covered by Article 15(4) of the Constitution in all the seats available in the private institutions irrespective of whether they are Government quota seats or management quota seats. Thus, it is evident that the State has imposed its reservation policy across the board. Can the State, then turn around and say that because of the observations in P.A Inamdar’s case (supra), it cannot extend the reservation to the management quota seats ? To our mind, the answer is an emphatic ‘No’. Reservation under Article 15(4) is a facet of the reservation implicit in Article 15(1). The State cannot profess helplessness once it has imposed the reservation under Article 15(4) to management quota seats also. The reservation under Article 15(1) is also to be imposed in a similar manner as the reservation under Article 15(4). Doing otherwise would attract the criticism of arbitrariness”

Moreover, the High Court also noted that reservation for migrants from Jammu & Kashmir has been imposed in the management quota as well though the same is in the nature of horizontal reservation.

“If the same can be imposed on the management quota seats, we fail to understand how reservations for sportspersons and TA/RA cannot be imposed on the same.”

The action of the State Government in providing for partial reservation in private institutions was accordingly held to be illegal.

This judgment has now been challenged in the Supreme Court.

Hearing in Supreme Court

The matter came up for hearing before a Bench of Justices  Arun Mishra, MR Shah and BR Gavai.

The Bench continuously questioned Attorney General KK Venugopal who was appearing for the State of Punjab.

“You have provided it in private institutions but only for government seats and not management seats. What is the logic? Once you provide, can you be creating a differentiation between government and management seats?”, Justice Arun Mishra asked.

The fact that reservation was provided for Jammu & Kashmir migrants was also brought up by the Bench.

“Why have you provided for J&K. If you are providing for J&K, then why not for this (Sports, TA/RA)”, the Bench asked.

Order

The Court said that it is inclined to have final hearing in the matter. It refused to stay the High Court order.

“After hearing the matters at some length, we deem it appropriate to have final hearing in the matter as main question arises with regard to validity of classification made as to Government seats and institutions seats for the purpose of reservation in question. Fact remains other reservations have been applied to all seats in private institutions. However, after hearing the learned counsel for the parties and considering the decisions in “T.M.A.Pai Foundation & Ors. Versus State of Karnataka & Ors.”, (2002)8 SCC 481 and “Gulshan Prakash (DR.) & Ors. Versus State of Haryana & Ors.”, (2010) 1 SCC 477, without expressing any opinion on merits, we are of the view that there shall not be a blanket stay on the order passed by the High Court.”

However, the Supreme Court noted that the High Court had enhanced the sports quota from 1% to 3%. That cannot be said to be appropriate as the Government has notified only 1% sports quota on horizontal business. Hence, the Supreme Court stayed that part of the High Court order with respect to enhancing quota from 1% to 3%.

The Court also held that Counselling can take place by September 7, 2019. Only 1% reservation be implemented with respect to sports quota.

[Read Supreme Court Order]

Reservation-order.pdf
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[Read Punjab & Haryana High Court judgment]

Punjab-Haryana-High-Court-judgment.pdf
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