Delhi High CourtKrishna Adit Agarwal vs Guru Gobind Singh Indraprastha on 26 September, 2008Author:Vipin SanghiBench:Vipin Sanghi*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                  Judgment reserved on: 18.09.2008

+                 Judgment delivered on: 26.09.2008

%(1)                    W.P.(C) 2763/2008

       KRISHNA ADIT AGARWAL                   ..... Petitioner
                     Through:     Dr. Aman Hingorani, Advocate

                             versus

       GURU GOBIND SINGH INDRAPRASTHA
       UNIVERSITY & ANR.                 ..... Respondents
                Through: Mr. G.D. Goel & Mr. Sanjiv Goel,
                         Advocates for respondent No.1.
                         Mr. Vikas Singh, ASG with Mr. R.
                         Balasubramaniam, Advocate for
                         respondent no.2.
                         Mr. Najmi Waziri, Advocate for
                         respondent No.3.

(2)                     W.P. (C) No.3313/2008

       INDIAN MEDICAL ASSOCIATION
       & ANOTHER                       ..... Petitioners
                    Through: Dr. Aman Hingorani, Advocate

                             versus

       UNION OF INDIA & ORS.               ..... Respondents
                Through: Mr. Chetan Chawla, Advocate for
                          respondent no.1.
                          Mr. Maninder Singh with Mr. T. Singh,
                          Advocates for respondent no.2.
                          Mr. G.D. Goel & Mr. Sanjiv Goel,
                          Advocates for respondent No.3.
                          Mr. Vikas Singh, ASG with Mr. R.
                          Balasubramaniam, Advocate for
                          respondent no.4 & 5.
                          Mr. Najmi Waziri, Advocate for
                          respondent No.6.

(3)                     W.P. (C) No.4454/2008


       ABHISHEK GUPTA & ORS.                .... Petitioners
                    Through:      Dr. Aman Hingorani, Advocate

                             versus




WP(C) No. 2763/2008                                       Page 1 of 36
       GURU GOBIND SINGH INDRAPRASTHA
      UNIVERSITY & ORS.                  ..... Respondents
              Through: Mr. G.D. Goel & Mr. Sanjiv Goel,
                        Advocates for respondent No.1.
                        Mr. Vikas Singh, ASG with Mr. R.
                        Balasubramaniam, Advocate for
                        respondent no.2 & 3.
                        Mr. Najmi Waziri, Advocate for
                        respondent No.4.

(4)                    W.P.(C) 6484/2008

      KUMAR HIMANSHU                         .... Petitioner
                  Through:         Dr. Aman Hingorani, Advocate

                             versus


      GURU GOBIND SINGH INDRAPRASTHA
      UNIVERSITY & ORS.                  ..... Respondents
              Through: Mr. G.D. Goel & Mr. Sanjiv Goel,
                        Advocates for respondent No.1.
                        Mr. Vikas Singh, ASG with Mr. R.
                        Balasubramaniam, Advocate for
                        respondent no.2 & 3.
                        Mr. Najmi Waziri, Advocate for
                        respondent No.4.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers      Yes
   may be allowed to see the judgment?

2. To be referred to Reporter or not?         Yes

3. Whether the judgment should be             Yes
   reported in the Digest?

VIPIN SANGHI, J.1.         This batch of writ petitions underArticle 226of the

Constitution of India (except WP(C) No.3313/2008 filed by Indian

Medical Association and Anr.) primarily seeks to challenge the

allocation of all the 100 seats for the wards of army personnel in the

respondent No.2 institute, viz. Army College of Medical Science, DelhiWP(C) No. 2763/2008                                          Page 2 of 36Cantonment, Delhi (hereinafter referred to as ACMS), which has been

set up for offering the MBBS degree course. WP(C) No.3313/2008 has

been filed to restrain the setting up of the Respondent ACMS without

the approval of the Central Government underSection 10Aof the

Medical Council of India Act. It also seeks a mandamus to require the

Respondent Nos.1 & 2 i.e. the Union of India and the MCI to require

the ACMS to first fulfill the qualifying criteria, before it is granted the

aforesaid permission. A mandamus is also sought against the

Respondent Guru Gobind Singh Indraprastha University to withdraw

the affiliation granted to ACMS unless it complies with the conditions

therefor.    I shall be dealing with the facts as appearing in W.P.(C)

No.2763/2008 filed by Krishna Adit Agarwal. The petitioner Krishna

Adit   Agarwal        filed   the     present   writ   petition   being   WP(C)

No.2763/2008 in March/ April, 2008 with the grievance that he was

not being permitted to submit the application form for admission to

the ACMS for MBBS-PGME 2008-09 and he was not being provided

with the prospectus by ACMS on the ground that he is not eligible as

he is not a ward of an army personnel.2.          During the pendency of the aforesaid writ petitions the Govt.

of NCT of Delhi took a Cabinet decision bearing No.1422 dated

14.7.2008 which was circulated vide file No.F.3/3/2004-GAD/CN-2868-

2879, whereby the Cabinet of the Govt. of NCT of Delhi sought to

approve 100% admission for the wards of army personnel in the

ACMS. The Govt. of NCT of Delhi followed up the aforesaid Cabinet

decision    by   a     notification     dated   14.8.2008   bearing   No.DHE-

4(33)/2008-09 purportedly issued in exercise of powers conferred by

Clause(b) of sub-section (1) ofSection 12of the "The DelhiWP(C) No. 2763/2008                                                   Page 3 of 36Professional Colleges OR Institutions (Prohibition of Capitation

Fee, Regulation Of Admission, Fixation Of Non Exploitative

Fees And Other Measures To Ensure Equity And Excellence)

Act, 2007" (referred as to "Delhi Act80 of 2007" I may note that

whereas in the Gazette Notification, the Act is numbered as "80 of

2007", in the Notification dated 29.05.2007 placed on record, the

same is numbered as "8 of 2007").         By the said notification, the

Lieutenant Governor of NCT of Delhi has permitted the ACMS to

allocate 100% seats in the said college for admission to the wards of

army personnel in accordance with the policy followed by the Indian

Army.3.         To challenge the aforesaid Cabinet Decision and the

notification dated 14.08.2008, the petitioner sought the amendment of

the writ petition by moving the CM No.12473/2008 in WP(C)

No.2763/2008.         This application was allowed by the Court on

8.9.2008. Since the issue is purely legal, no further counter affidavit

has been filed by the respondents to the amended writ petition.

Counter affidavits had been filed to the unamended writ petition by

respondent     No.1    Guru   Gobind   Singh   Indraprastha   University

(hereinafter referred to as the GGSIPU) and by respondent No.2

ACMS.4.         Learned counsel for the petitioner submits that ACMS is an

institution established entirely by the Central Government. The said

institution has been leased land by the Government of India in Delhi

Cantonment area, which is Government property.           Moreover the

hospital to which the ACMS is attached is the base hospital run by theWP(C) No. 2763/2008                                            Page 4 of 36Army and is not owned or run by Army Welfare Education Society

(AWES), which has set up ACMS. It is argued that it cannot be said

that the ACMS is an unaided professional institution. It is a wholly

Government funded enterprise. Therefore, it is a Central Educational

Institution to which theDelhi Act80 of 2007 is not applicable, since it

cannot be said to be an unaided institution.The Delhi Act80 of 2007,

as perSection 2, applies to "unaided institutions" affiliated to a

University imparting education in degree, diploma and certificate

courses. "Institution" is defined to mean College or Institution aided

or unaided, affiliated to a university imparting education, inter alia, in

the discipline of medicine.5.         The alternative contention of the petitioner is that the

allocation of 100% seats in the ACMS for wards of army personnel, ex-

army personnel and war widows is in violation ofSection 6of the

Guru Gobind Singh Indraprastha University Act (hereinafter referred

to as the 1998 Act) andArticle 15of the Constitution of India. It is

further submitted thatSection 6(1)of the 1998 Act mandates that the

University will be open to all persons.Section 6(2)permits the

respondent University to make special provisions, inter alia, for

admission of women, or of persons belonging to the weaker sections

of the society and in particular of persons belonging to Scheduled

Castes and Scheduled Tribes. Statute 24 of the respondent University

deals with the aspect relating to the conditions under which colleges

and institutions may be admitted to the privileges of the University

and the conditions under which such privileges may be withdrawn.

Clause 3 of the said Statute lays down the essential conditions of

affiliation of colleges and institutions. It, inter alia, states that "NoWP(C) No. 2763/2008                                             Page 5 of 36college or institution shall be admitted to the privileges of the

University unless" inter alia, "it undertakes to adhere to the

provisions of the Act, the Statutes, the ordinances and the regulations

of the University and to comply with the standing orders, directions

and instructions of the University."       The petitioner submits that

Ordinance-30 of the respondent University has been framed in

keeping in viewArticle 15(5)of the Constitution of India read withSection 6(2)of the 1998 Act for making special provisions for

advancement of weaker sections of the society, and in particular of

persons belonging to the Scheduled Castes and the Scheduled Tribes

by making special provision for their admission to self financing

private institutions affiliated to respondent University. It, inter alia,

states: -"1. Reservation of seats and procedure of filing the
       same in all the self-financing private institutions affiliated
       with Guro Gobind Singh Indraprastha University in
       respect of Delhi as well as Outside Delhi Category
       candidates would be as follows:(i)   Scheduled Castes and Scheduled Tribes
             ....................(ii) Reservation for Defence Category:Five percent of seats are reserved for Defence
       Category in the following order of priority:-a)    Widows/Wards of Defence personnel killed in
             action.

       b)    Wards of serving Defence personnel and ex-
             servicemen disabled in action.

       c)    Widows/wards of Defence personnel who died
             in peace-time with death attributable to
             military service.

       d)    Wards of Defence Personnel disabled in peace-
             time with disability attributable to military
             service.WP(C) No. 2763/2008                                              Page 6 of 36e)     Wards of Defence ex-servicemen and serving
              personnel who are in receipt of Gallantry
              Award.

       (iii) Physically Handicapped
             ........................................(iv) Supernumerary Seats for Kashmiri Migrants
            .........................................2.   This procedure for filling up of the reserved
       category seats would be the same as notified by the
       University in the Admission Brochures from time to time.3.    This Ordinance would be applicable on the self-financing private institutions other than the minority
       institutions referred to in Clause (1) ofArticle 30of
       Constitution of India.4.   For reservations in the Government Institutions, the
       policy of the Government of the NCT of Delhi already in
       vogue will continue to apply.5.  This issues with the approval of the Competent
       Authority.6.   This ordinance has come into force with effect from
       the date of approval by the Board of the Management."(emphasis supplied)6.          It is, therefore, argued by learned counsel for the petitioner

that the respondent ACMS having sought affiliation with the

respondent GGSIP University is bound to adhere to the provisions of

1998 Act, its Statutes and Ordinances which, inter alia, prescribed

reservation for defence category only to the extent of 5% seats. The

reservation of 100% seats of ACMS for the wards of serving and

retired army personnel and war widows, and the resultant denial of

admission to all other category of candidates is in the teeth of the

1998 Act, Statute 24 and Ordinance 30, as aforesaid. The petitions

have relied upon various other decisions, reference whereto is made

later in the judgment.WP(C) No. 2763/2008                                             Page 7 of 367.         The stand of Respondent No.2 i.e. ACMS is that it has been

established by the Army Welfare Education Society (AWES), a

registered Society with the Registrar of Society, Delhi under theSocieties Registration Act, 1860. The objective of AWES is to cater to

the educational needs of the wards of serving army personnel, ex

army personnel and war widows of the Army. There are about 11.3

lakhs serving army personnel and about 20 lakhs ex army personnel

and war widows in the country. AWES is running approximately 123

army school and 12 professional colleges as a welfare measure for

the wards of army personnel as tribute for the sacrifices and service

being rendered by them for the nation. The stand of respondent No.2

is that the terms and conditions of service of army personnel are very

harsh.   Consequently army service is not attracting adequate talent

for the protection of the country.   The Indian Army is facing acute

shortage of manpower which is adversely affecting its operational

preparedness. It is stated that one of the core problems is that wards

of army personnel suffer serious disadvantages in pursuing education

for a number of reasons. Personnel serving in field/border areas

cannot keep their families with them due to security reasons and lack

of accommodation and education facilities, and at the places where

the families are provided accommodation, educational facilities that

are available may not be upto the desired standards. Consequently,

service conditions of the parents-like deployment at the border;

outposts in remote areas; having no         or primitive educational

facilities; tenure based postings affecting continuity; lack of married

accommodation at military stations, and wherever available, lack of

adequate facilities, results   in frequent change of schools withWP(C) No. 2763/2008                                          Page 8 of 36different medium of instructions for such children, leading to

adjustment and other related problems, and; lack of supervision and

guidance from the fathers, lead to the children of the army

personnel/ex army personnel to suffer from disadvantages compared

to those    coming from civil background. Additionally, some of the

States have laid down conditions such as number of years of studying

in the State and domicile requirements as a pre condition for

appearing in entrance examination for professional courses in the

States concerned.     For the aforesaid reasons children of the army

personnel cannot compete with civilian children for admission to

professional courses since they do not enjoy a level playing field when

it comes to competition with their civilian counter parts. Since the

education of children of army personnel is vital in maintaining the

morale of army personnel, AWES was set up to raise and administer

its own educational institutions for wards of serving army personnel,

ex servicemen and war widows.8.         Respondent No.2 further submits that the Supreme Court

has upheld the reservation in favour of wards of ex defence personnel

inD.N. Chanchala vs. State of Mysore & Ors.1971(2) SCC 293.

The submission of respondent No.2 is that there is no medical college

for the wards of army personnel in the country and seats reserved in

some of the medical colleges are woefully inadequate to meet the

requirements of approximately 60 lakh army children. So as to attract

adequate talent to join the army, AWES has opened 12 professional

colleges for the wards of army personnel. In line with the aforesaid

decision, it was decided to establish      Army College of Medical

Sciences at New Delhi. It is submitted that respondent ACMS hasWP(C) No. 2763/2008                                          Page 9 of 36been set up through the Army Welfare Funds which are regimental

funds and are not public funds. No public or Government fund or

grants are used in running these educational institutions. The revenue

expenditure in establishing and running the army professional

colleges are made through regimental welfare funds in addition to

tuition fee payable by the students. The management body of AWES

comprises of senior serving army officers in ex officio and honorary

basis.   It is submitted that AWES and its educational institutions do

not receive any financial aid or grant from the Central or State

Governments and that AWES is a purely unaided educational society.

There is no management quota in army professional colleges and

admissions are made solely on the basis of merit, drawn on the basis

of the written admission test.        Fee structure is not aimed at

commercial exploitation and there is total transparency in admission

of eligible wards.9.         It is also argued that the purpose of establishing the

respondent Institution would be wholly defeated if the seats are

thrown open to the civilian candidates who are equipped to avail of

all other opportunities as compared to wards of army personnel.10.        It is further submitted that the ACMS being an unaided

professional college is entitled to maintain complete autonomy in its

administration, which would include admission of students. It claims

an unfettered fundamental right to choose students to be granted

admission, provided the admission procedure is fair, transparent and

non-exploitative.     It is further argued that the restrictions on the

source of selection to the wards of army personnel, ex army personnelWP(C) No. 2763/2008                                          Page 10 of 36and war widows does not amount to reservation. It does not amount

to discrimination against any citizen on the ground of religion, race or

caste or sex or place of birth. Wards of all army personnel, ex-

servicemen and war widows constitute a special class who, because of

the extraordinary difficulties that they face, unlike their civilian

counter parts, are in a disadvantaged position so far as their

education is concerned and they are, therefore, entitled to be treated

differently from the wards of civilians.11.        The respondent GGSIPU in its counter affidavit submits that

for establishment of a medical college in NCT of Delhi, the institution

requires permission underSection 10Aof the Medical Council of India

Act. It also requires an approval from the Medical Council of India

and a No Objection Certificate from the Government of NCT of Delhi.

The respondent GGSIPU further states that admission and fee etc in

the unaided professional institutions in NCT of Delhi is regulated by

theDelhi ActNo.80 of 2007. The said Act was passed by Govt. of NCT

of Delhi after amendment inArticle 15of the Constitution of India

vide Constitution (93rdAmendment) Act, 2005dated 28.1.2006. In the

counter affidavit       of the said University dated 17.5.2008, the

respondent University stated that ACMS had not been granted

affiliation by it till the filing of such affidavit. However, during the

pendency of the writ petitions the respondent University has granted

provisional    affiliation   to   the   ACMS   of   Medical   Sciences   vide

communication dated 6.8.2008, which has been placed on record by

the respondent University upon the Court requiring its production,

after the judgment was reserved.WP(C) No. 2763/2008                                               Page 11 of 3612.        Therefore, it needs to be firstly ascertained whether ACMS

can be said to be an "aided institution" or whether it is an "unaided

institution". The expression "Unaided Institution" has been defined

inDelhi Act80 of 2007. It reads ""unaided institution" means an

institution other than an aided institution." "Aided Institution" is

defined to mean "an institution receiving recurring financial aid or

grant-in-aid from any State, Union Territory, Central Government or

the University Grants Commission, and includes a minority institution

as may be specified by the Government."              In support of his

submissions that ACMS is an aided, and not an unaided institution,

the petitioner submits that the land for setting up the ACMS has been

leased by the Ministry of Defence, Government of India.The Base

Hospital is also not a hospital of the AWES. It is the Base Hospital of

the Army. On the other hand, the learned ASG Mr. Vikas Singh has

urged that AWES has been held as not being "a State" and that it has

been held       that the funds of the Army Welfare Fund are not

government/public funds. He relies onAsha Vij & Ors. vs. the Chief

of the Army Staff &Ors.2002 (VI) AD (Delhi) 109 and Union of

India & Anr. vs. Chotelal & Ors. JT 1998 (8) SCC 497.A similar

body, namely, Army Welfare Housing Organisation (AWHO) has also

been held not to be an instrumentality of the State inN.C. Rastogi v.

Union of IndiaAIR 1986 Delhi 128.He submits that the Base

hospital of the army is being utilised by the ACMS only till such time

as the hospital of the said institution is set up.13.        In my view, considering the definitions aforesaid of the

expressions "aided institution" and "unaided institution" and the

aforesaid decisions of the various courts including this Court,WP(C) No. 2763/2008                                          Page 12 of 36whereby it has been held that AWES is not an instrumentality of the

State and that the regimental funds, which have been used for the

purpose of setting up, and for the purpose of meeting the recurring

expenses of ACMS, do not constitute government/public funds, it

cannot be said that ACMS is an aided institution. To be classified as

an aided institution, I would assume that an overwhelming percentage

of the day to day recurring running and maintenance expenses would

have to be borne by the Government on a regular basis. That is how

even an "aided school" is understood under theDelhi School

Education Act. The petitioner has not produced any material on

record to show that there is any commitment made by the

Government to support the ACMS on a regular and recurring basis to

meet a large percentage of its day to day running and maintenance

expenses. Merely because, for the present, the ACMS is using the

base hospital of the army for the purposes of clinical experience and

education of the medical students, it does not mean that it is receiving

any "aid". So far as the land on which the ACMS has been set up is

concerned, the same belongs to the Government. The same has been

leased out to AWES initially for a period of 30 years, which could be

raised to 99 years. Even other private unaided educational institutions

have been allotted/leased land for setting up the institutions in the

past by the Government (L&DO) and the DDA in Delhi.             Merely

because the same is paid for by such institution, does not make a

difference. I, therefore, reject the submission of learned counsel for

the petitioner that ACMS can be said to be an "aided institution" and

not an "unaided institution".WP(C) No. 2763/2008                                          Page 13 of 3614.        The fall out of the aforesaid finding is that the respondent

institute is governed by theDelhi ActNo.80 of 2007. Section 12 of the

Said Act is relevant and the same reads as follows:-"12. Allocation and reservation of seats-(1) In every institution, except the minority institution-(a) subject to the provisions of this Act, ten per cent of the
      total seats in an unaided institution shall be allocated as
      management seats;(b) eighty five per cent of the total seats, except the
      management seats, shall be allocated for Delhi students
      and the remaining fifteen per cent seas for the outside
      Delhi students or such other allocation as the Government
      may by notification in the Official Gazette, direct;(c) supernumerary sets for non-resident Indians and any
      other category shall be as may be prescribed.(2) In the seats mentioned in sub-section (1), an institution
      shall reserve-(a) seventeen per cent seats for the candidates belonging
      to the Scheduled Castes category, one percent seats for
      the candidates belonging to the Scheduled Tribes
      category and such percentage of seats, for any other
      category including Other Backward Classes as may be
      prescribed;(b) for seats not mentioned as allocated for Delhi students
      in sub-section (1), fifteen per cent seats for candidates
      belonging to the Scheduled Castes category, seven and a
      half per cent seats for the candidates belonging to the
      Scheduled Tribes category and such percentage of seats,
      for any other category as may be prescribed.(c) subject to clause (a) and clause (b), three per cent
      seats for person with disabilities as provided in the
      Persons withDisabilities (Equal Opportunities, Protection
      of Rights and Full Participation) Act, 1995(1 of 1996) and,
      such percentage of seats for the wards of defence
      personnel and any other category, as may be prescribed."WP(C) No. 2763/2008                                                Page 14 of 3615.        The Govt. of NCT of Delhi in exercise of powers conferred

bySection 23of the Delhi Act 80 of 2007 framed "The Delhi

Professional Colleges or Institutions (Prohibition of Capitation

Fee, Regulation of Admission, Fixation of Non-Exploitative Fee

and Other Measures to Ensure Equity and Excellence) Rule,

2007 (hereinafter referred to as the said Rules). Rule 8 of the said

Rules deals with the allotment of seats. In so far as it is relevant states

as follows:"8. Allotment of seats - (1) Allotment of seats in an un-
        aided professional college or institution shall be made
        college or institution-wise for each course.(2) Every institution other than a minority
        institution, shall provide for seats in respect of
        management quota, wards of defence personnel,
        persons with disability and others in the manner as
        described below:-(a) ...... ............(b) Wards of Defence Personnel - Five percent of
        the seats under each programme of study shall be
        reserved for widows/wards of personnel of Armed
        Forces in the order prescribed by the Rajya Sainik
        Board from time to time."(emphasis supplied).16.        The submission of Dr. Hingorani, learned counsel for the

petitioner is that even if one were to proceed on the basis that theDelhi ActNo.80 of 2007 is applicable to ACMS, even so the said

institution can provide only 5% of the seats as reserved seats for

wards of army/ex-army personnel and war widows            in the order of

preference prescribed by the Rajya Sainik Board from time to time.

On the other hand the submission of Mr. Vikas Singh, learned ASG is

thatSection 12of the Delhi Act No.80 of 2007 and, in particular,

Clause (b) ofSection 12(1)empowers the Government of NCT of Delhi

to make such "allocation" as it may deem fit, and in exercise of theWP(C) No. 2763/2008                                             Page 15 of 36powers so conferred the Government can allocate 100% seats for

being filled by the wards of army/ex-army personnel and war widows.

He, therefore, sought to justify the aforesaid cabinet decision

contained in Cabinet decision No.1422 dated 14.7.2008 as well as the

notification issued purportedly underSection 12(1)(b)of the Delhi Act

80 of 2007.17.        It, therefore, now needs to be determined whether the

Cabinet decision No.1422 dated 14.7.2008 and the Notification dated

14.8.2008 purportedly issued underSection 12(1)(b)of the Delhi Act

No.80 of 2007 are valid and competent or not, by reference to the

provisions of theDelhi ActNo.80 of 2007 and the Rules.18.        The object of theDelhi ActNo.80 of 2007, as evident from

the Preamble of the said Act is, inter alia, "to ensure equity and

excellence in professional education in the NCT of Delhi." From a

reading ofSection 12, what emerges is that it talks of both-"allocation" and "reservation".Section 12(1)(a)states that 10% of the

total seats in "every" unaided institution (except minority institution)

shall be "allocated" as management seats.      UnderSection 12(1)(b),

85% seats, of the remaining 90% seats (i.e.85/100 x 90/100 x total

seats) "shall be allocated for Delhi students"     and "the remaining

fifteen percent seats" (i.e. 15/100 x 90/100 x total seats) "for the

outside Delhi students or such other allocation as the Government

may by notification in the Official Gazette, direct".    The words "or

such other allocation as the Government may by notification direct" in

my view, do not relate to "eighty five percent of the total seats, except

the management seats" which are to be "allocated for the DelhiWP(C) No. 2763/2008                                           Page 16 of 36Students" and only relate to "the remaining fifteen per cent seats for

the outside Delhi students." This is the plain grammatical meaning of

clauses (a) and (b) ofSection 12(1). It is, even otherwise, reasonable

to conclude that an unaided institution set up in Delhi would largely

cater to the students of Delhi.     That is the pattern for allocation of

seats followed in unaided institutions in Delhi.19.        While sub-Section(1) ofSection 12deals with the aspect of

"allocation" of seats, sub-Section (2) thereof deals with "reservations",

Clauses (a) & (b) ofSection 12(2)deal with "reservations"        of the

specified percentage of seats for the Scheduled Castes, Scheduled

Tribes, and Other Backward Classes category of candidates. Clause(c) is very pertinent and provides that, subject to clause (a) and (b) [ofSection 12(2)],       three percent seats are reserved for persons with

disabilities, and, "such percentage of seats for the wards of defence

personnel or any other category, as may be prescribed."20.        Therefore, the Delhi Act No.80 of 2007 provides for

"reservation" and not "allocation" of seats for the wards of defence

personnel. It does not provide for earmarking any percentage of the

total seats for the words of defence personnel, and thereafter, the

further division thereof by providing for reservations for the eligible

categories. Had the seats for the wards of defence personnel been

covered by sub-Section (1) ofSection 12dealing with "allocation",

there was no question of the same being covered by clause (c) ofSection 12(2). The fact that theDelhi ActNo.80 of 2007 provides for

"reservation" and not "allocation" for the wards of the defence

personnel is also clear from the rule making power conferred byWP(C) No. 2763/2008                                            Page 17 of 36Section 23, and particularly by Clause (g) ofSection 23(2). The said

clause empowers the Government to make Rules for fixing the

"percentage of seats to be "reserved" for the ward of defence

personnel under clause (c) of sub-Section (2) ofSection 12".

Pertinently, as aforesaid, the Government has also framed Rules as

extracted above, which prescribe the percentage of reservations for

the wards of the defence personnel at 5%.          This shows that the

Government also understood the provision of seats for the wards of

defence personnel as an act of "reservation" and not "allocation". I

am, therefore, of the view that under the Scheme of the Delhi Act

No.80 of 2007, the Government is not empowered, in exercise of

powers conferred by Clause (b) ofSection 12(1), to allocate       100%

seats in ACMS for wards of Army/ex-Army personnel or War Widows.

The power to "allocate" seats underSection 12(1) (b)as vested in the

Government is in respect of 15% of the 90% of the total number of

seats in ACMS.        The said notification would, therefore, have to be

read down to save it from invalidity, by interpreting it to mean as

providing reservation upto the permissible extent.Section 14of the

Delhi Act No.80 of 2007 states that "any admission made in

contravention of the provisions of the Act or the Rules made

thereunder, shall be void."Section 18makes the contravention of the

provisions of the Act or the Rules made thereunder an offence, and

the offender is liable to be punished with imprisonment for a term

which may extend to three years or with fine which may extend to

Rs.1 Crore, or with both.        Thus, the legislature has evinced its

intention in a clear and firm manner to punish the offenders with

severe punishments.WP(C) No. 2763/2008                                           Page 18 of 3621.        In   my    view,   merely   because    the   Rules   provide    for

reservation of 5% for the wards of defence personnel, it does not

mean that the Government can not in respect of ACMS, provide for a

higher percentage of reservation for the said category of candidates.

The prescription of 5% reservation is for general application to all the

unaided institutions. It does not preclude the Government from to

take into account the background of each institution, the purpose for

which it is set up, the organization/people who who have set up the

institution etc. and to permit a percentage of seats to be reserved for

a defined class of candidates. At the same time, it is clear that the

impugned Cabinet decision and the notification, by seeking to reserve

100% seats in ACMS for the wards of the Army/ex-Army personnel

and war widows, undisputedly compromises the relative merit of the

candidates which is protected bySection 13of the Delhi Act No.80 of

2007. The same reads as follows:"13. Manner of admission - An institution shall, subject
      to the provisions of this Act, make admission through a
      common entrance test to be conducted by the designated
      agency, in such manner, as may be prescribed:Provided that the management seats may be advertised
      and filled up, from the candidates who have qualified the
      common entrance test, by the institution is a transparent
      manner based on the merit at the qualifying examination."22.Section 3(d)defines "common entrance test" to mean "the

entrance test conducted for determination of merit of the

candidates followed by centralized counseling for the purpose of

merit based admission to an institution through a single window

procedure by the designated agency".             Pertinently, the petitioner

Krishna Adit Agarwal has secured the 314 rank in the Common

Entrance Test (CET). According to the petitioner there are only 70WP(C) No. 2763/2008                                               Page 19 of 36defence candidates who have cleared the CET, and secured ranks that

go upto 1688.         Only 7 out of the 70 successful defence candidates

have a rank better than the petitioner Krishna Adit Agarwal. Similar

is the position with regard to few other petitioners in this batch of

petitions. However, it is not necessary to go into the ranking of each

of them for the present purpose.23.        Learned counsel for the petitioner submits that the question

is not about the grant of reservation to the wards of army/ex army

personnel and war widows in aided or unaided institutions. He does

not deny that they constitute a special class and could be provided

reservation within the Constitutional framework. He submits that the

issue raised by the petitioners is about the extent of such reservation,

and he submits that 100% reservation is even otherwise, not

permissible under the Constitutional Scheme as is sought to be done

in respect of the ACMS. By placing reliance uponIndira Sawhney vs.

UOI1993 SC 477, he submits that the Supreme Court has held in

relation toArticle 16of the Constitution of India (which provides for

equality of opportunity in matters of public employment, and at the

same time entitles the State to make provision for reservation in the

matter of grant of employment or appointment to office under the

Government, local authority or other authority, in favour of the

Scheduled Castes, Scheduled Tribes and backward classes etc.), that

only in very exceptional situations, and not for all and sundry reasons

any further reservation of whatever kind should be provided under

Clause (1) ofArticle 16.In such cases the State has to justify, if called

upon, that the making such a provision is necessary in public interest

to redress a specific situation.If reservations are made both underWP(C) No. 2763/2008                                             Page 20 of 36Clause (4) as well as Clause (1) of Article 16, the vacancies available

for free competition as well as reserved categories would be

categorically whittled down and that is not a reasonable thing to do.24.        On the other hand, the submission of Mr. Vikas Singh, the

learned Additional Solicitor General is thatArticle 15enjoins the

State not to discriminate against any citizen on the grounds of

religion, race, castes, sex, place of birth or any of them. He submits

that the allocation of all the 100 seats in ACMS for the wards of

army/ex army personnel and war widows does not in any way violate

the mandate ofArticle 15.He submits that within the allocated

source, i.e., the wards of army/ex army personnel and war widows,

there is no discrimination in the matter of grant of admission on the

basis of religion, race, caste, sex, place of birth or any of them and

admissions are being made to the ACMS entirely on the basis of merit

of the candidates being judged on the basis of their ranking in the

CET conducted by the respondent University.25.        In my view this submission of the petitioner, in so far as it

pertains to grant of reservation in favour of the wards of army/ex-

army personnel and war widows in educational institutions, does not

hold good for two reasons.      Firstly, the provision of reservation for

wards of army/ex-army personnel and war widows is not even under

challenge in this petition.    Moreover, from the counter affidavit of

ACMS it is clear that the wards of the army/ex-army personnel and

war widows constitute a separate class for which reservations can

legitimately be provided, and there is disclosure of sufficient

justification for its being provided.WP(C) No. 2763/2008                                           Page 21 of 3626.        After the decision of the Supreme Court inT.M.A. Pai

Foundation & Ors. v. State of Karnataka & Ors.(2002) 8 SCC

481, the Supreme Court inIslamic Academy of Education & Anr.

v. State of Karnataka & Ors.(2003) 6 SCC 697 clarified various

aspects ofT.M.A. Pai Foundation(supra). In para 6 of this decision

(at page 720) the Supreme Court formulated the questions which

arose for consideration before it. Question 3 framed by the Supreme

Court reads as follows:"3. Whether private unaided professional colleges are
         entitled to fill in their seats, to the extent of 100%, and
         if not, to what extent;......."27.        While dealing with the aforesaid question, the Supreme

Court referred to para 68 of its decision inT.M.A. Pai(supra) which

reads as follows:"68. It would be unfair to apply the same rules and
      regulations regulating admission to both aided and
      unaided professional institutions. It must be borne in mind
      that unaided professional institutions are entitled to
      autonomy in their administration while, at the same time,
      they do not forgo or discard the principle of merit. It
      would, therefore, be permissible for the university or the
      government, at the time of granting recognition, to
      require a private unaided institution to provide for merit-
      based selection while, at the same time, giving the
      Management sufficient discretion in admitting students.
      This can be done through various methods. For instance, a
      certain percentage of the seats can be reserved for
      admission by the Management out of those students who
      have passed the common entrance test held by itself or by
      the State/University and have applied to the college
      concerned for admission, while the rest of the seats may
      be filled up on the basis of counselling by the state
      agency. This will incidentally take care of poorer and
      backward sections of the society. The prescription of
      percentage for this purpose has to be done by the
      government according to the local needs and different
      percentage can be fixed for minority unaided and non-
      minority unaided and professional colleges. The same
      principles may be applied to other non-professional but
      unaided educational institutions viz., graduation and post-
      graduation non-professional colleges or institutes."WP(C) No. 2763/2008                                            Page 22 of 3628.In para 13 ofIslamic Academy(supra) the Supreme Court

observed:"However, a proper reading of paragraph 68, indicates
          that a further distinction has been made between
          minority and non minority professional colleges. It is
          provided that in cases of non minority professional
          colleges "a certain percentage of seats" can be
          reserved for admission by the management. The rest
          have to be filled up on basis of counseling by State
          agencies. The prescription of percentage has to be
          done by the Government according to local needs.
          Keeping this in mind provisions have to be made for the
          poorer and backward sections of the society. It must be
          remembered that, so far as, medical colleges are
          concerned, an essentiality certificate has to be obtained
          before the college can be set up. It cannot be denied
          that whilst issuing the essentiality certificate the
          respective State Governments take into consideration
          the local needs. These aspects have been highlighted in
          a recent decision of this Court inState of Maharashtra
          v. Indian Medical Assn. Whilstgranting the essentiality
          certificate the State Government undertakes to take
          over the obligations of the private educational
          institution in the event of that institution becoming
          incapable of setting of the institution or imparting
          education therein. A reading of paragraphs 59 and
          68 shows that in non minority professional
          colleges admission of students, other than the
          percentage given to the management, can only be
          on the basis of merit as per the common entrance
          tests conducted by government agencies. The
          manner in which the percentage given to the
          management can be filled in is set out hereinafter."(emphasis supplied)29.In paragraph 175 of the judgment rendered by S.B. Sinha, J.

inIslamic Academy(supra) the Supreme court observed as under:"175. If it is to be held that in a case of minority institution
      all the seats could be filled in by members of their
      community/language, if available, the same would run
      counter to para 68 of the Judgment which says about
      certain percentage which can never be 100%. The
      expression "different percentages" occurring in para 68
      would clearly mean there cannot be any fixed percentage.
      In a given case it may be more than 90% but in
      another it may be less than 50%. Different
      percentages must be worked out in terms of theWP(C) No. 2763/2008                                              Page 23 of 36need of the institution. It has nothing to do with
      minority or non-minority; aided or unaided." (emphasis
      supplied)30.        If,   in the case of even minority institutions, 100% of the

seats could not be filled by the management of the minority

institutions, certainly ACMS, which is not even a minority institution

(who enjoy special protection underArticle 30of the Constitution),

cannot seek to fill 100% of its seats from only a single source i.e. from

amongst the wards of the army/ex-army personnel and war widows.31.        The Supreme Court has held inAIIMS Students Union v.

AIIMS & Ors.AIR 2001 SC 3262 that a mechanism evolved, which

ensures admission in the post graduate courses in AIIMS to all

students graduating from AIIMS, amounts to super reservation. The

Supreme Court rejected the argument that reservation of 33% of post-

graduate seats in favour of AIIMS students is not a reservation as it

provides two sources of entry to PG courses of study in AIIMS,

namely,    in-house    candidates   of   AIIMS   and   open   category     of

candidates i.e. students other than from AIIMS. The Supreme Court

rejected the argument advanced by the appellants that the use of the

expression "reservation" in the context is misplaced.         The Supreme

Court observed:"We are dealing with a case where the division of seats
          between two classes coupled with two level reservation
          and unique percentile method has been so carved out,
          as if tailor-made, as is resulting into a reservation
          which ensures allotment to the extent of 100% of PG
          seats followed by guaranteed placement in the choicest
          of creamy disciplines to the candidates belonging to
          one category (i.e. Institute's in-house candidates)
          without regard to their competitive merit. This is not a
          reservation but a super-reservation and certainly not a
          source of entry."WP(C) No. 2763/2008                                              Page 24 of 36In para 53, the conclusion recorded by the Supreme Court is

in the following words:-"53.      The upshot of the above discussion is that
          institutional reservation is not supported by the
          Constitution or constitutional principles. A certain
          degree of preference for students of the same
          institution intending to prosecute further studies
          therein is permissible on grounds of convenience,
          suitability and familiarity with an educational
          environment. Such preference has to be reasonable and
          not excessive. The preference has to be prescribed
          without making an excessive or substantial departure
          from the rule of merit and equality. It has to be kept
          within limits."32.InPai Foundation(supra) as well as inP.A. Inamdar &

Ors. v. State of Maharashtra & Ors.(2005) 6 SCC 537, the

Supreme Court has held that "education up to undergraduate level on

one hand and education at graduate and post-graduate levels and in

professional and technical institutions on the other are to be treated

on different levels inviting not identical considerations".     At the

graduation level professional courses such as the one in question,

there cannot be 100% reservation, or the limiting the sources of

selection to only one source/class by giving a go by to merit. The

respondent ACMS is bound to comply with the terms of affiliation on

which affiliation can be granted and, in fact, has been granted to

ACMS by the respondent University.InPavai Ammal Vijayapuri

Education Trust v. Government of Tamilnadu & Ors.AIR 1995

SC 63 the aforesaid position is clearly stated.From para 107 at page

593 (as reported inSCC) of P.A. Inamdar(supra), it appears that

once an educational institution is granted aid or aspires for

recognition, the state may grant aid or recognition accompanied byWP(C) No. 2763/2008                                         Page 25 of 36certain restrictions or conditions which must be followed as essential

to the grant of such aid or recognition.33.        Reliance placed by the learned ASG on Sameer Anand v.

Amity Institute of Law decided by the High Court of Punjab &

Haryana in Civil Writ Petition No.1098/2000, on 30.01.2001, does not

appear to be of much help to determine the controversy raised in

these petitions. That was a case where 80% of the seats in the Army

Institute of Law, also set up by AWES, were reserved for wards of

army personnel.         The remaining 20% seats were meant for either

Punjab residents or fell in the All India category.       The petition was

dismissed, inter alia, by holding that it was not a case of reservation

in favour of the wards of army personnel, but a case of fixing the

source from which the candidates were being drawn.This decision is

not of much assistance, since it is rendered before the decisions of the

Supreme      Court      inT.M.A.   Pai   Foundation(supra),Islamic

Academy       of      Education(supra)   andP.A.   Inamdar(supra).

Moreover, unlike inthe said decision, the present case is governed by

theDelhi ActNo.80 of 2007, which specifically deals with the aspect

of allocation and reservation, as discussed hereinabove.It appears the

learned Judge was not appraised with the judgment of the Supreme

Court inAIIMS Students Union(supra).34.        Learned ASG also submits that a Division Bench of the

Punjab & Haryana High Court in Army Institute of Higher

Education v. State of Punjab & Ors. Civil Writ No.8961/2007,

decided on 04.10.2007, while dealing with a case pertaining to an

institution running the B.Ed. Course took a contrary view by holdingWP(C) No. 2763/2008                                                 Page 26 of 36that the Army Institute of Higher Education could not be allowed to

fill up all the seats exclusively from the wards/dependants of army

personnel ignoring other meritorious eligible candidates.           This

decision was appealed against before the Supreme Court. He submits

that the Supreme Court has granted leave and virtually stayed the

operation of the said judgment in SLP (Civil) No.887/2008.35.        In my view,     the mere fact that the Supreme Court has

granted a leave to appeal from the decision of the Division Bench in

Army Institute of Higher Education (supra) cannot be taken to

mean that the Supreme Court has set aside the decision of the

Division Bench.       In fact, a perusal of the order dated 25.01.2008

passed in the aforesaid Special Leave Petition shows that the

Supreme Court did not in terms stay the operation of the judgment of

the Division Bench. However, it appears that the operation of various

notifications by which the Army Institute of Higher Education       was

aggrieved was stayed.        On 15.09.2008, when the Supreme Court

granted leave the aforesaid interim order dated 25.01.2008 was

continued.     It cannot, therefore, be said that the decision of the

Division Bench of the Punjab and Haryana High Court, in the

aforesaid matter, has either been disapproved or even stayed by

Supreme Court.The Supreme Court inP.A. Inamdar(supra) in para

134 observed that different considerations would apply for graduate

and post graduate level of education as also for technical and

professional educational institutions.     Such education cannot be

imparted by any institution unless recognized by or affiliated with any

competent authority created by law, such as the University, Board,

Central or State Government or the like. Excellence in education andWP(C) No. 2763/2008                                          Page 27 of 36maintenance of high standards at this level are a must. To fulfil these

objectives, the State can and rather must, in national interest, step in.

The education, knowledge and learning at this level possessed by

individuals collectively constitutes national wealth.36.        What was meant when the Supreme Court             observed that

"different considerations would apply" for graduate/post graduate

level education and for technical/professional educational institutions,

which are unaided? The answer lies in         para 125 of the Judgment inP.A. Inamdar(supra). The Supreme Court had observed as under: -"125. As per our understanding, neither in the
          judgment of Pai Foundation nor in the Constitution
          Bench decision in Kerala Education Bill, which was
          approved by Pai Foundation, is there anything which
          would allow the State to regulate or control admissions
          in the unaided professional educational institutions so
          as to compel them to give up a share of the available
          seats to the candidates chosen by the State, as if it was
          filling the seats available to be filled up at its discretion
          in such private institutions. This would amount to
          nationalization of seats which has been specifically
          disapproved in Pai Foundation. Such imposition of
          quota of State seats or enforcing reservation policy of
          the State on available seats in unaided professional
          institutions are acts constituting serious encroachment
          on the right and autonomy of private professional
          educational institutions. Such appropriation of seats
          can also not be held to be a regulatory measure in the
          interest of minority within the meaning ofArticle 30(1)or a reasonable restriction within the meaning ofArticle 19(6)of the Constitution. Merely because the
          resources of the State in providing professional
          education are limited, private educational institutions,
          which intend to provide better professional education,
          cannot be forced by the State to make admissions
          available on the basis of reservation policy to less
          meritorious candidate. Unaided institutions, as they are
          not deriving any aid from State funds, can have their
          own admissions if fair, transparent, non-exploitative
          and based on merit."37.        Therefore,   in   respect   of   the   unaided    non     minority

educational institutions, the emphasis (even in respect of institutionsWP(C) No. 2763/2008                                                Page 28 of 36other       than   those    imparting    graduate/post    graduate      and

technical/professional education) was that the admissions to such

educational institutions should be based on merit and merit should

not to be compromised by thrusting the reservation policy of the State

upon such educational institutions.         In respect of graduate/post

graduate level of education, as also in respect of technical/provisional

education the emphasis on maintenance of higher standards and

excellence is even greater.        Para 107 of the judgment inP.A.

Inamdar(supra) is instructive, and relevant extract thereof reads as

follows:-"107. Educational institutions imparting higher
            education i.e. graduate level and above and in
            particular specialized education such as technical
            or professional, constitutes a separate class. While
            embarking upon resolving issues of constitutional
            significance, where the letter of the Constitution is not
            clear, we have to keep in view the spirit of the
            Constitution, as spelt out by its entire scheme.
            Education aimed at imparting professional or
            technical qualifications stands on a different
            footing from other educational instruction. Apart
            from other provisions,Article 19(6)is a clear indicator
            and so are clauses (h) and (j) ofArticle 51A.Education
            upto undergraduate level aims at imparting
            knowledge just to enrich mind and shape the
            personality of a student. Graduate level study is a
            doorway to admissions in educational institutions
            imparting professional or technical or other
            higher education and, therefore, at that level, the
            considerations akin to those relevant for
            professional or technical educational institutions
            step in and become relevant. This is in national
            interest and strengthening the national wealth,
            education      included.        Education       up     to
            undergraduate level on the one hand and
            education at graduate and post-graduate levels
            and in professional and technical institutions on
            the other are to be treated on different levels
            inviting not identical considerations, is a
            proposition not open to any more debate after Pai
            Foundation. A number of legislations occupying the
            field of education whose constitutional validity has
            been tested and accepted suggest that whileWP(C) No. 2763/2008                                             Page 29 of 36recognition or affiliation may not be a must for
          education up to undergraduate level or, even if
          required, may be granted as a matter of routine,
          recognition or affiliation is a must and subject to
          rigorous scrutiny when it comes to educational
          institutions awarding degrees, graduate or post-
          graduate, post-graduate diplomas and degrees in
          technical or professional disciplines".38.InT.M.A. Pai Foundation(supra) the Supreme Court in

para 58 of the judgment delivered by Kirpal, CJ., observed that for

admission into any provisional institution merit must play an

important role.        It is necessary that meritorious candidates are not

unfairly treated or put to a disadvantage by preferences shown to less

meritorious      but     more   influential   candidates.   Excellence     in

professional education would require that greater emphasis be laid on

the merit of a student seeking admission.39.           This batch of cases present a somewhat reversed situation,

inasmuch as, ACMS, which is an unaided institution imparting

professional education, with the backing of the             Government, is

seeking to disregard the merit of the candidates by screening them on

the basis whether they are or they are not wards of army/ex-army

personnel and war widows. Since the thrust of the decisions of the

Supreme Court inT.M.A. Pai Foundation(supra) as well as inP.A.

Inamdar(supra) is to lay emphasis on maintenance of excellence and

higher standards, inter alia, in professional courses, the action of the

respondents' in seeking to preserve 100% seats in ACMS for the

wards of army/ex-army personnel and war widows even otherwise

does not appear to be constitutionally valid.As I have observed above,

the impugned notification would, therefor, have to be read down to

sustain it.WP(C) No. 2763/2008                                              Page 30 of 3640.        The issue that now arises for consideration is, as to what

percentage of seats can validly be claimed to be reserved in ACMS for

wards of army/ex-army personnel and war widows. One cannot lose

sight of the fact that ACMS has been set up by AWES primarily from

the regimental fund of the army and primarily for the purpose of

providing better educational avenues to the wards of army/ex-army

personnel and war widows.         The circumstances which put such

candidates to some amount of disadvantage when compared to the

general category candidates has been elaborately set out by the

respondent institute in its counter affidavit and has also been

extracted in the earlier part in this judgment. It is also not disputed

that the wards of army/ex-army personnel and war widows do

constitute a definite class which is entitled to grant of reservation in

educational institutions.41.Section 6of the Guru Gobind Singh Indrapratha University

Act 1998 permits the University to make such provisions for the

appointment or admission of, inter alia, persons belonging to the

weaker sections of the society.    Under the 1998 Act, "Government"

means the Lieutenant Governor of Delhi. The Lieutenant Governor of

Delhi is also the Chancellor of the Respondent University. The

Chancellor has to right to cause an enquiry "in respect of any matter

connected with the administration or finances of the University,

college or institution" and, eventually to issue directions, which the

Board of Management of the Respondent University is bound to

comply with.Section 39of the 1998 Act enables the Government to

remove difficulties in giving effect to the provisions of the said Act by

issuing orders, published in the Official Gazette, making provisionsWP(C) No. 2763/2008                                           Page 31 of 36not consistent with the provisions of the said Act.    The impugned

notification, also issued by the Lieutenant Governor of NCT of Delhi,

in my view can be read as one such order made in respect of ACMS a

College affiliated to the Respondent University.42.        The Supreme Court inM.R. Balaji v. State of Mysore1963 SC 649 has held that reservations upto 50% are permissible.The Supreme Court inIslamic Academy of Education(supra) in

para 175 while dealing with para 68 of the decision inT.M.A. Pai

Foundation(supra) held that the expression "a certain percentage of

seats" used in relation to the management quota in a non-minority

unaided professional institution could be more than 90% in a given

case, but may be less than 50% in another case.             Different

percentages must be worked out in terms of the need of the

institution.   The need of the respondent ACMS to reserve a high

percentage of the seats for the wards of army/ex-army personnel and

war widows has been sufficiently explained.        Under the scheme

evolved by theDelhi ActNo.80 of 2007, the management is entitled to

10% seats. Another 15% seats of the remaining 90% seats, can be

allocated by the Government underSection 12(1)(b). This translates

to 13.5 out of 100 seats and would be rounded off to 14 seats out of

100 seats. An additional 5% seats are, in any event, reserved for the

wards of armed forces in exercise of powers conferred underSection

12(2)(c)under the Rules.       All this put together translates to

50+10+14+5 = 79 seats out of 100 seats. In my view reservation of

79 out of 100 seats for wards of army/ex-army personnel and war

widows would serve the purpose for which ACMS has been set up by

AWES. The remaining 21 seats in my view ought to be thrown uponWP(C) No. 2763/2008                                        Page 32 of 36to all other candidates to be filled up strictly on the basis of merit

determined by reference to the ranking in the CET conducted by

respondent University. These 21 seats being open general category

seats, would be available to all candidates, including the wards of

Army/Ex-Army personnel and war widows.            If, on account of their

higher merit in the CET, they are able to bag some of these seats, it

would not affect the number of reserved seats for the wards of

Army/Ex-Army personnel and war widows.43.        I am also of the view that it would be in the larger interest of

ACMS as well as the candidates who are admitted to the institute

from amongst the wards of army/ex-army personnel and war widows,

if a fraction of the students are admitted on the basis of merit alone.

It is well known that meritorious students in any institution lend

credibility to the institution.   When they pass out,     they act as the

ambassadors of their Alma Mater. They lead to enhancement of the

reputation of the institution. While studying at the institution, they

also inspire their classmates/batchmates to perform better.          Other

students often derive     personal guidance and help from the more

meritorious students which, sometimes, they are not able to receive

even from their instructors.      The more meritorious students expose

the others to better techniques of learning and infuse a sense of

comfort and confidence in their other classmates. They also generate

healthy competition, which also invariably leads to achievement of

higher efficiency, knowledge and expertise amongst other co-

students. It is well known that leading Universities and Institutes the

World over invite students with proven merit to study at their faculties

and even offer scholarships and other benefits to them as incentives.WP(C) No. 2763/2008                                             Page 33 of 36This is primarily done to get the cream of students precisely for the

reasons indicated above.44.        The submission of learned counsel for the ACMS is that the

AWES is investing its regimental funds and the army is providing the

facility of its Base Hospital. These contributions have been made by

the AWES, the Government and the Army for the wards of defence

personnel, and not for subsidizing medical education for the general

category students.     It being a welfare measure, the respondent

institute is not charging fee like other private institutes from its

students. In my view, the general category candidates, who may be

granted admission to ACMS, are not entitled to any concessional fee

that ACMS may recover from other candidates, who are wards of

army/ex-army personnel and war widows.        Such students should be

required to pay the fee that may be fixed by ACMS/AWES in

accordance with the provisions of theDelhi ActNo.80 of 2007.45.        It is not disputed by the respondents that a very large

number of seats in the respondent college have remained unfilled

since very few candidates who are wards of defence personnel have

qualified for admission to the respondent college in the current

academic session.     It is also not disputed that several of the

petitioners in this batch of writ petitions have, in fact, secured higher

merit in the CET conducted by the respondent University than those

who have been granted admission being wards of army/ex-army

personnel and war widows. Since a large number of seats are still

available to be filled in the respondent college, the respondent college

may,    without conceding a higher percentage of seats for generalWP(C) No. 2763/2008                                           Page 34 of 36category candidates than 21 out of 100, consider filling up the

remaining seats in this particular academic session 2008-09 from

amongst general category candidates on the basis of merit. However,

on this aspect, I leave the decision entirely in the hands of the

respondent institute. The aforesaid suggestion has been made by me

considering the fact that every such seat is highly precious since a

large number of meritorious candidates are desirous of, and waiting

to get admission. Each such seat is a national asset and it would be

desirable not to let the same go to waste. A seat left unfilled in any

academic session remains vacant till the end of the course and the

period of the MBBS Course is nearly 5 years.46.        I, accordingly, allow this batch of writ petitions and hold

that the reservation/allocation of seats for the wards of army/ex-army

personnel and war widows in ACMS could be to the extent of 79 out of

100 seats and the remaining 21 seats should be filled by the general

category candidates on the basis of merit in the CET 2008.             I,

therefore, direct the respondents to insert prominent public notices in

national dailies published from Delhi on 27.9.2008 and 28.9.2008,

inviting candidates who have successfully cleared the CET 2008 to

report for a special counseling to be held on 29.09.2008 from 10:00

a.m. onwards at the ACMS, Delhi Cantonment. The candidates should

be required to report for counseling with the necessary documents.

The list of all those candidates who report upto 4 p.m. be compiled in

the order of merit and displayed by the respondents at ACMS and on

the notice board of the respondent University on 30.9.2008 at 09:00

a.m. On 30.9.2008, the respondent ACMS should accept the fee and

grant admissions to the candidates as per merit.     Since the time isWP(C) No. 2763/2008                                         Page 35 of 36extremely short, in view of the decision of the Supreme Court in

Mridul Dhar & Anr.V. Union of India & Ors., (2005) 2 SCC 65, the

respondents may provisionally accept attested copies of the mark

sheets and other documents and grant provisional admissions to the

candidates, subject to their producing the original documents by

30.10.2008.47.        With these directions the petitions stand disposed off.       A

copy of this judgment be given to the parties Dasti today itself.(VIPIN SANGHI)
                                               JUDGE
September 26, 2008
as/aj/rskWP(C) No. 2763/2008                                           Page 36 of 36