SUDHA TIWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE office of the Additional Solicitor General of India, High Court, Allahabad has accepted notice on behalf of respondent no. 1. Learned standing counsel appears for respondent nos. 2 and 3. Smt. Sunita Agarwal appears for respondent nos. 5, 5 and 6. THE petitioner has appeared in B.P.Ed Entrance Examination-2008. THE result of the examination was declared in January, 2009 and was also published in daily newspaper 'Amar Ujala' on 7.1.2009 in which the petitioner was declared successful. She was however placed in the waiting list for counselling of the course on 11.4.2009, as her merit percentile was 34.67. She was however not allowed to participate in the counselling on the grounds that the general category seats were filled up and that only reserved category seats are allowed for counselling amongst other Backward Classes, Scheduled Caste and Scheduled Tribe candidates. THE petitioner has challenged the 93rd Constitutional Amendment Act, 2005 by which Art. 15(5) has been added to Part III Constitution of India, and Section 4 of the U.P. Admission to Educational Institution (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 2006, to the extent that it relates to the private un-aided and self financed institutions by declaring same to be invalid, and ultra vires to the provisions of the Constitution of India. THE petitioner has further prayed for a direction to the University of Gorakhpur to quash the decision of the Admission Committee to proceed with the reservation policy of the State of U.P. in the matter of admissions to B.P.Ed course in the self finance and un-aided educational institutions to which the petitioner seeks admission. In Ashok Kumar Thakur vs. Union of India and others, (2008) 6 SCC 1, a Constitution Bench of the Supreme Court has held Article 15 (5) to be valid to the extent it permits reservation for socially educationally backward classes and other reserved category classes in the State or State aided educational institutions subject to exclusion of creamy layer from O.B.C. Four honourable judges on the Bench did not express any opinion whether the Constitution (Ninety-third Amendment) Act, 2005 was valid so far as private un-aided educational institutions are concerned and have left the question open. Hon'ble Mr. Justice Dalveer Bhandari in his opinion however considered the issue and has held that the Constitution (Ninety-third Amendment) Act, 2005 is not constitutionally valid so far as private unaided educational institutions are concerned. THE final order of the Court has been reproduced in paragraph- 668 to 672 at page 717 and 718 of the report as follows:- "ORDER OF THE COURT 668. THE Constitution (Ninety-third Amendment) Act, 2005, is valid and does not violate the "basic structure" of the Constitution so far as it relates to the State-maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is not considered and left open to be decided in an appropriate case. Bhandari, J, in his opinion, has, however, considered the issue and has held that the Constitution (Ninety-third Amendment) Act, 2005 is not constitutionally valid so far as private unaided educational institutions are concerned. 669. Act 5 of 2007 is constitutionally valid subject to the definition of "Other Backward Classes" in Section 2 (g) of Act 5 of 2007 being clarified as follows: If the determination of "Other Backward Classes" by the Central Government is with reference to a caste, it shall exclude the "creamy layer" among such caste. 670. Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal. 671. Act 5 of 2007 is not invalid for the reason that there is no time-limit prescribed for its operation but majority of the Judges are of the view that the review should be made as to the need for continuance of reservation at the end of 5 years. 672. THE writ petitions are disposed of in the light of majority judgment. However, in Contempt Petition No. 112 of 2007 in WP (C) No. 265 of 2006, no orders are required." THE issue whether Constitutional Amendment Act providing for reservations in admissions to private un- aided educational institutions are concerned, is therefore open to be considered and on the grounds raised in the writ petition. We find that the petitioner has prima facie made out a case for issuing notices. We are also informed that in Writ Petition No. 2160 (MB) of 2009 Usha Educational Institute vs. State of UP, a Division Bench of Lucknow High Court had also issued notices and had passed interim orders. Let replies be filed by the Central Government; State Government and the University, and notices be issued to the Attorney General of India and the Advocate General of the State. Taking into account the public impotence of the issues raised in the writ petition and following the interim orders passed by the Division Bench of Lucknow High Court, it is provided as an interim measure that the provisions of the reservations in respect to admissions to the private un-aided colleges in self financed courses, provided in Section 4 of the U.P. Admission to Educational Institutions (Reservations for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 2006 shall not be implemented till further orders of the Court. List on 9th July, 2009 after exchange of affidavits. A copy of the order be given to the Additional Solicitor General of India and the Chief Standing Counsel for compliance.