(1.) The petition is at the instance of a candidate, who was a SC candidate and had been placed at No.9 in the order of merit in the Scheduled Caste category. Out of 9, 5 persons had secured marks above the cut off marks for the general category and if 5 candidates had, therefore, been taken as admitted in general category, there would have been still five vacancies in SC category in which the petitioner would have obtained admission. Instead college has allowed for two SC candidates who had qualified with the cut off marks for general category to be pushed to the SC category and thereby denying a right of admission in the SC category. The process has resulted in an unmerited admission to a general category candidate to be admitted in a seat which was made vacant by transfer of the SC candidate from the SC category.
(2.) It is too well known that reservation for Scheduled Caste is vertical reservation and if a SC candidate gets the marks above the cut off marks for general category, he ought to be admitted only against the seat in General Category and cannot be sent to the SC category, for, that would mean withdrawing a reservation which is possible exclusively for SC candidate, who has lower cut off marks. The manner of how vertical reservation has been explained in lucid details in Indira Sawhney & Ors v. Union of India, 1993 AIR(SC) 477. The provision for lower cut of marks is constitutionally recognized in 82nd Amendment of the Constitution. The amendment was made specifically to avail the effect of bar against such relaxation contained in Indira Sawhney's case at para 83 and Article 335 proviso typically approves of lower cut off marks for SC category students. After the admission made by the respondent of a candidate in the General Category, to transfer him to the SC category is grossly improper and constitutionally impermissible. The conduct of the University is deprecated and even while allowing the petition, I impose costs of Rs. 25,000/- against the University payable to the petitioner.
(3.) I am informed that two seats in general category gained by SC candidates were made vacant by transferring them to the SC category. Therefore, two candidates in SC category must obtain the benefit of this order by displacing two general category candidates who have been subsequently admitted. However, only one SC candidate has approached this Court. However, In view of the decision that I have taken, the 6th respondent will continue but the 7th respondent cannot continue any longer. The counsel argues that he has not committed any mistake. It may not be his mistake but because of the mistake committed by the University he has obtained an unmerited admission. It will be open for him to secure the damages through civil suit before a competent court. The University is directed to pay back the tuition or any other fee collected from respondent No.7 with interest @ 12% per annum. This registry shall dispatch copy of this order to the U.T. SC/ST Commission to send directives to the universities operating in the UT, Chandigarh and the respective affiliated colleges that a SC candidate who merits selection in general category by virtue of the merit position and securing above the cut off marks for general category shall not be transferred to SC category, for that will rob the seat available for another SC category candidate, besides securing an unmerited admission to a general category candidate. This will also make violence to vertical reservation for SC candidates mandated under the Constitution. Appropriate penal action shall be recommended against officials manipulating the constitutional norms. This order copy is also directed be sent to the Education Secretary to send appropriate circulars to all such educational institution who are required to follow the reservation policy.