Judgment

GROVER, J. :- This is an appeal by special leave from a judgment of the Nagpur Bench of the Bombay High Court.

2. The necessary facts as given in the return filed in the High Court and which have not been disputed may be set out. The Vidyapeeth (University) has three Agricultural Colleges attached to it. One is at Akola, the other at Nagpur and the third at Parbhani. For the M.Sc. (Agri.) course 12% seats were reserved for the Scheduled Castes and Nawabuddhas and 8% were reserved for the Scheduled Tribes. Six percent seats were reserved for members of classes and communities which were socially and educationally backward. Two percent seats were reserved for agriculturists and children of agriculturists who possessed minimum qualifications or experience in agriculture prescribed by the statue. Fifteen percent seats were reserved for persons who and whose parents had not resided in the State for 10 years or more and 2% for the children of what were called "Freedom Fighters". Initially admissions were made on the basis of the above percentages. The qualifications required for admission were the degree of B.Sc. (Agri.) or an equivalent examination with at least 50% marks in the aggregate and in the subject offered for the Post Graduate studies. The Vidyapeeth found that after the admissions had been made on the basis of the above qualifications certain relaxation of marks was necessary for students belonging to the classes for whom reservation had been made. Two steps were taken; One was that additional seats should be created and twelve such seats were created. The qualifications were also lowered in that instead of 50% marks in the aggregate 45% were laid down as sufficient. The lowering of the qualifications was done mainly in respect of the sons of "Freedom Fighters" as also of persons belonging to Scheduled Castes and Scheduled Tribes. This was done by the Executive Council by means of a resolution dated July 25, 1970 without going into further details the net result was that in the Nagpur College itself two seats were increased to accommodate the children of the Freedom Fighters. To one of the seats respondent No. 1 was admitted. He started attending the classes from July 28, 1970. By the time return came to be filed in October 1970, he had appeared in all the monthly examinations and had passed in them. The final examination of the First Trimester of the course leading to degree of the M. Sc. (Agri.) examination had already been held and respondent No. 1 had passed that examination.

3. A petition under Article 226 of the Constitution was filed in the High Court originally by 7 Petitioners out of which two were struck off leaving petitioners 1 to 5 before the High Court. According to petitioners 1 and 2 they had secured more than 50% marks in the aggregate as well as in the subject in which they had applied for admission and that they were thus entitled to be admitted instead of respondent No. 1 who was not duly qualified. The High Court went into the matter at length. It proceeded on the basis that the reservations could be made for the children of Freedom Fighters under Section 5 of the Punjabrao Krishi Vidyapeeth (Agricultural University) Act 1968, hereinafter called the Act . The reservation of the seats to the extent of 2%, therefore, was valid as the previous sanction of the State Government had been obtained.

4. The High Court was of the view that the lowering of the minimum qualification for admission was unauthorised although the seats could have been increased by the Executive Council. After coming to that conclusion this is what the High Court said :-

"We hold that the petitioners are entitled to be considered for admission to the unreserved seats out of the 11 seats created and the petitioners have, therefore, right to approach this Court under Article 226 of the Constitution for the redress."

The order of admission of respondent No. 1 in the Nagpur College was quashed and it was directed that if possible the