- (1.) BY the Court.-We have heard Shri Raj Kumar Pandey for the petitioner. Dr. Ashok Nigam, Additional Solicitor General of India assisted by Shri S.K. Misra represents Union of India. Shri V.K. Singh, Additional Advocate General assisted by Shri A.K. Sinha appears for the State respondents. Shri B.D. Mandhyan, Senior Advocate assisted by Smt. Sunita Agarwal appears for the University.
(2.) THE applications for B.P.Ed Entrance Examination 2008 were invited by the Deen Dayal Upadhyay Gorakhpur University, Gorakhpur for admissions to the B.P.Ed course, in the self-finance unaided educational institutions. THEse unaided private institutions are stated to be ten in number affiliated to the University. THE advertisement for admissions to the academic session 2008-09 provided, that for the said course, the reservations as provided in the Rules of the Government of U. P will be applicable, clarifying that vertical reservations of 27% for Other Backward Classes (excluding creamy layer); 21 % for Scheduled Castes and 2% for Scheduled Tribes will be provided in the entrance examination to be held on 27.6.2008. The decision of the University proceeded on the basis, and in compliance of Section 4 of the U.P. Admissions to Educational Institutions (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 2006 including the State run educational institutions and private unaided and self-finance educational institutions. Section 4 of the Act of 2006 provides as follows ; "4. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward classes-(1) In admission to educational institutions, including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30 of the Constitution of India, there shall be reservation at the stage of the admission in the following percentage of sanctioned intake to which admission is to be made in favour of person belonging to Scheduled Castes, Scheduled Tribes and Other Backward Casses of citizens, in the academic year, - JUDGEMENT_819_ADJ2_2011Image1.jpg (2) In respect of any academic year if any vacancy reserved for any category of persons under sub-section (1) remains unfilled, another special admission drive shall be made to fill such vacancy from amongst the person belonging to that category. (3) If in the special admission drive referred to in sub-section (2) suitable candidates belonging to the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes. (4) Where, due to non-availability of the suitable candidates, any of the seats reserved under the sub-section (1) remains unfilled even after special admission drive referred to in sub-section (2), or sub-section (3), then such vacancy shall be filled by any other suitable candidate, on the basis of merit. (5) If a person belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit as general candidate, and if he wants to remain as a general candidate, then he shall not be adjusted against the vacancies reserved for such categories under sub-section (1)." The petitioner applied for admission to the B.P.Ed course in pursuance to the advertisement, to appear in the entrance test in general category. She was issued admit card to appear in the examination, which was re-scheduled to be held on 4.7.2008. She was declared successful in the results published in daily newspaper 'Amar Ujala' on 7.1.2009. The Department of Education of the University informed her that she is placed in the waiting list and was asked to be personally present for the counselling on 11.4.2009. Her merit percentile was shown to be 34.67. She appeared before the committee but was not allowed to take part in the counselling on the ground that the seats available for un-reserved candidates were filled up, and that the remaining seats were reserved only for OBCs; SCs and STs candidates.
(3.) THE petitioner has filed this writ petition claiming following reliefs : "(i) issue a writ, order or direction in the nature of certiorari quashing the 93rd Constitutional Amendment Act, 2005 whereby a new clause has been inserted/added to the Article 15 as 15 (5) in Part ill of the Constitution of India and Section 4 of the U.P. Admission to Educational institutions (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 2006 (U.P. Act No. 23 of 2006), to the extent it relates to the private unaided and self financed educational institutions, by declaring the same to be invalid, ultra vires to the provisions of the Constitution of India and unconstitutional and/or (ii) issue a writ, order or direction in the nature of certiorari quashing the decision of the admission committee of the D.D.U. University Gorakhpur to proceed with the reservation policy of the State of U.P. in the matter of admission to the B.P.Ed course in the self financed and unaided educational institutions as mentioned in the information brochure received by the candidates alongwith the application forms and/or (iii) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 4 to consider the candidature of the petitioner for counseling to the B.P.Ed course on the basis of her percentile of merit secured by her in the entrance examination for the said course and/ or." In Civil Misc. Writ Petition No. 2160 (MB) of 2009, Usha Educational Institute v. State of UP and others, the High Court at Lucknow, has passed an order on 5.3.2009 to the effect that the provisions of the reservation in respect of the admission in private unaided colleges as given in Section 4 of the Act of 2006 shall not be implemented. The High Court relied upon an interim order passed in the Writ Petition No. 8265 (MB) of 2007 in which similar issues are raised and in which similar interim order was passed on 2.11.2007 for academic session 2007- 08. The Apex Court in Civil Appeal No. 476 of 2008 against the interim order did ' not interfere and directed the High Court to dispose of the controversy preferably within two months. We are informed that the Writ Petition No. 2160 (MB) of 2009 Usha Educational Institute v. State of UP and others, is still pending.;