HC blow for quota in private institutes.
The court passed this interim order on the writ petition of Sudha Tiwari, a student who had taken an admission test for the bachelor of physical education (BPEd) in Deen Dayan Upadhyay University (DDUU), Gorakhpur in 2008. Her name had figured in the list of successful candidates, but was denied admission.
A division bench comprising Justice Sunil Ambwani and Justice Yogesh Chandra Gupta held that Section 4 of the UP Admission to Educational Institutions (reservation for SC, ST and OBC) Act 2006 was not only "invalid" but also "ultra vires" to the basic structure of the Constitution of the country.
In its order, the court said: "The Constitution (93rd Amendment) Act 2005, in so far as it enables to provide reservation for admission to unaided educational institutions, is violative of the basic structure of the ConstitutionC* for the same reason, Section 4 of the UP Admission to Educational Institutions (Reservation for SCs, STs and OBCs) Act, 2006 (UP Act No. 23 of 2006) is also declared to be invalid and ultra vires, to the extent it relates to providing reservations, in admission of students to private unaided and self finance educational institutions in UP."
The court added: "The decision of the admissions committee of the university to proceed with the reservations in admission of students, the advertisement, its process and the admission of the reserved category candidates, to the extent that they were provided admissions in the reserved category, is set aside. The university will consider giving admission to the petitioner in the B. P. Ed Course on the basis of her percentile on merits." The Constitution ( 93rd Amendment) Act, 2005, by inserting a new clause ( 5) in Article 15 of the Constitution, had enabled the state to make special provision, by law, for the protection of the rights of the SC, ST, OBC in all educational institutions, including aided or unaided private educational institutions, except minority educational institutions.
Section 4 of the Act says that in admission to educational institutions, including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions, there shall be reservation for SCs, STs and OBCs at the stage of the admission.
Sudha Tiwari informed that the university had invited applications for entrance examination 2008 for admission to BPEd in academic session 2008- 2009 in self- financed unaided educational institutions which were affiliated to DDUU. " I appeared in entrance examination on June 27, 2008 and was declared successful on January 7, 2007. The university informed me that I was placed in the waiting list and was asked to be personally present for counseling on April 11, 2009. My merit percentile was 34.67. I appeared before the committee but was not allowed to take part in the counseling on the ground that the seats available for unreserved candidates were filled up and that the remaining seats were reserved only for OBCs, SCs and STs candidates", she said.
" Though the advertisement had mentioned the provision of vertical reservations of 27 per cent for OBCs ( excluding creamy layer); 21 per cent for SCs and 2 per cent for STs in the entrance examination, I decided to challenge it because I strongly felt against the rule for those educational institutions in which there was no financial stake of the government," she said.
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