Section 5
Bare Act Provision
5. Mandatory increase of seats. —(1) Notwithstanding anything contained in clause (iii) of section 3 and in any other law for the time being in force, every Central Educational Institution shall, with the prior approval of the appropriate authority, increase the number of seats in a branch of study or faculty over and above its annual permitted strength so that the number of seats, excluding those reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, is not less than the 1[number of such seats available or actually filled, whichever be less,] for the academic session immediately preceding the date of the coming into force of this Act.
(2) Where, on a representation by any Central Educational Institution, the Central Government, in consultation with the appropriate authority, is satisfied that for reasons of financial, physical or academic limitations or in order to maintain the standards of education, the annual permitted strength in any branch of study or faculty of such institution cannot be increased for the academic session following the commencement of this Act, it may permit by notification in the Official Gazette, such institution to increase the annual permitted strength over a maximum period of 2[six years] beginning with the academic session following the commencement of this Act; and then, the extent of reservation for the Other Backward Classes as provided in clause (iii) of section 3 shall be limited for that academic session in such manner that the number of seats available to the Other Backward Classes for each academic session are commensurate with the increase in the permitted strength for each year.
Footnote from Bare Act
1. Subs. by Act 31 of 2012, s. 5, for “number of such seats available” (w.e.f. 19-6-2012).
2. Subs. by s. 5, ibid., for “three years” (w.e.f. 19-6-2012).
Explanation
Section 5 deals with the mandatory increase of seats to accommodate reservations without reducing the number of general seats. Reservation has to be provided for OBC category students in terms of Section 5 of the Act. The Scheme laid down by Section 5 appears to be to provide the said reservation by enhancing the intake capacity of the Central Educational Institutions so that the number of existing seats for the general unreserved category, as were existing in the immediately preceding academic year from the date of commencement of the Act, are not reduced. The Central Educational Institutions are obliged to obtain the requisite statutory approvals from the concerned appropriate authority for increasing the number of seats. [1]
Section 5 of the Act empowers every Central Educational Institution with prior approval of the appropriate authority to increase the number of seats in a branch of study or faculty over and above it’s annual permitted strength so that the number of seats, excluding those which are reserved not less than the number of such seats available for the academic sessions immediately preceding the commencement of the Act. The Central Government in consultation with the appropriate authority is empowered to grant such permission including extending reservation for Other Backward Classes as well. [2]
Sub-Section (1)
The Court notes that Section 5(1) imposes a duty on every CEI to take steps to increase the number of seats in branches of study so that the reservation of seats (for SC, ST, and OBC) does not result in a reduction of seats available for the unreserved category. The 2012 Amendment further refined this by substituting the phrase “number of such seats available” with “number of such seats available or actually filled, whichever be less.” This technical change was meant to provide a more accurate baseline for calculating the required seat increase, preventing institutions from being penalized for vacancies that were never actually filled. [3]
Critics argue that if an institution is forced to artificially inflate its permitted strength to accommodate reservations without a proportional increase in faculty and laboratories, the value of the degree for merit-based students decreases. This is also violative of right to quality education.
Sub-Section (2)
As per Section 5(2) of the Act, the level of reservations for the OBC category candidates that has to be achieved within three years from the date of commencement of the Act is 27% of the annual permitted strength. [1] After 2012 Amendment, this period had been increased to six years.
Why government is so time bound to implement reservation policies on the basis of caste instead of economic condition of the students or citizens? This question is recurring in many discussions revolving around caste based reservations since long, but no fruitful advancement is done by Government to uplift economically backward people in all categories. Is Government time bound for implementing creamy layer law in all categories?
Reference
[1] Tandan Kumar & Ors. vs Universityof Delhi & Anr., Delhi High Court W.P.(C) 5329/2008
[2] Pichhda Jan Kalyan Samiti,Baba. Bhimrao Ambedkar Univ.& Ors. Vs. Union Of India,Thru.The Secy.,Ministry Of H.R.D. & Ors., Allahabad High Court, MISC. BENCH No. – 9643 of 2016
[3] Kshetrimayum Maheshkumar Singh vs The Manipur University [(2022) 2 SCC 704]
