Amitabh Shrivastava Vs. State of
Madhya Pradesh & Ors [1982] INSC 14 (4 February 1982)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
DESAI, D.A.
CITATION: 1982 AIR 827 1982 SCR (3) 186 1982
SCC (1) 514 1982 SCALE (1)266
ACT:
Rules relating to admission to medical
colleges in Madhya Pradesh dated 17-4-1979-Reservation of seats to certain
categories-Minimum marks reduced from 50 per cent in the aggregate to 43 per
cent, by an executive order dated 10th March, 1980-Stage at which the benefit
arising from the said executive order is to be applied, explained-Rules 2, 7, 9
and 20, scope of.
HEADNOTE:
There are six medical colleges in Madhya
Pradesh.
Admission to the first year of M.B.B.S.
Course is on the basis of the qualifying examination. There were 720 seats in
those six colleges in the year 1979-80.
Under Rule 7 reservations are made for
certain categories. One such is for the sons and daughters of military
personnel of Madhya Pradesh and 21 seats in all were reserved for that
category.
Under Rule 20, the qualifying marks to be
obtained by Candidates other than Scheduled Castes and Scheduled Tribes, shall
be 50 per cent in the aggregate and 33 per cent in each of the subjects. In
case the required numbers of candidates for admission are not available,
according to the above percentage of qualifying marks, the Board conducting the
pre-medical examinations under Rule 2 shall have power to lower the marks up to
5 per cent in the aggregate for all categories of candidates.
Under Rule 9, in case sufficient numbers of
candidates do not qualify for admission under any reserved category and any
seats remain vacant, such vacant seats shall be filled by preparing a combined
merit list of all the remaining categories of candidates on the waiting list
and the candidates shall be admitted according to merit in the list so
prepared.
The appellant who was a son of military
personnel got only 43.6 per cent of marks in the aggregate, and he could not
get a seat under the reserved category even after the marks were lowered to 45
per cent under Note 1 to Rule 20 by the Board. Even after that was done, 7
seats remained vacant out of 21 seats reserved for the sons and daughters of
military personnel. On 10-3-1980, the Government by an executive order reduced
the minimum aggregate to 43 per cent. The Board, prepared a combined list under
Rule 9 and applying the minimum of 43 per cent granted admission, as per that
list, and refused admission to the appellant. The question arose whether the
selection should be based on the combined list prepared under Rule 9 or on
taking 43 per cont as the qualifying marks in the aggregate.
187 Allowing the appeal by special leave, the
Court,
HELD: Since the minimum qualifying marks were
reduced to 43 per cent by an executive order without any provision therefor in
the statutory rules, Rule 9 of the statutory rules could not be applied at that
stage, and the appellant who had secured 43.6 per cent of marks in the
aggregate should have been admitted in the category to which he belonged The
difference between 45 per cent in the aggregate, to which the minimum
qualifying marks were reduced under Note (1) to Rule 20 and 43.6 per cent of
marks in the aggregate secured by the appellant is so little that it could not
be a valid or sufficient reason for giving a go-bye, on the ground of merit, to
the reservation provided for in Rule 7 of the Rules. [194 G-H, 195 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 853 of 1981.
Appeal by special leave from the judgment and
order dated 4.11.1980 of the Madhya Pradesh High Court in Case Misc. Petition
No. 167 of 1980.
Shiv Dayal, P.S. Das Gupta and J.B.
Dadachanji for the Appellant.
Gopal Subramaniam and S.A. Shroff for the
Respondents.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is directed against the judgment
of K.K. Dube, J. of the Madhya Pradesh High Court in Writ Petition No. 167 of
1980, with whom the learned Chief Justice of that High Court had agreed on a
difference of opinion between the learned Judge and A. R. Navkar, J. The
petition filed under Article 226 of the Constitution was for the issue of a
writ, order or direction for the writ petitioner's admission into one of the
medical colleges in Madhya Pradesh for the M.B.B.S. course, commencing in the
academic year 1979-80. After hearing the learned counsel for the parties we
allowed the appeal by a brief order on 14.1.1982 without any order as to costs,
on account of the urgency of the matter, reserving our reasons to be given
later, and directed the respondents to admit the appellant to the M.B.B.S
course for the academic year 1981- 82 for which admissions are admittedly going
on even now. We are presently giving reasons.
The Government of Madhya Pradesh, Public
Health and Family Welfare Department, have framed Rules on 17.4.1979 for 188
admission into the Medical, Dentistry and Ayurvedic Colleges in the State. In
this appeal we are not concerned with the Dentistry and Ayurvedic Colleges.
There are six Medical Colleges in the State of Madhya Pradesh affiliated to
different universities. There are 720 seats for admission into the first year
course in those six colleges. Rule 5(1) of the aforesaid Rules, hereinafter
refer to as the Rules, lays down that no candidate shall be admitted to the
M.B.B.S. course unless he has passed the B.Sc. Part I (three years degree
course Medical Group) examination of the recognised universities of the State
with Physics, Chemistry, Biology (Zoology and Botany) or any examination of any
other university or board recognised as equivalent thereto with practical tests
in each subject provided the candidate has passed in each of those subjects in
theory and practical separately. Under rule 6 of the Rules no candidate shall
be admitted to the medical college unless he completes the age of 17 years on
the 31st December of the year of admission to the college. Rule 1(3) provides
for the pre- medical examination being held every year for selection of
candidates for admission to the medical colleges in the State and says that all
admissions to those colleges have to be made only from the merit list prepared
on the basis of the result of that examination except in the case of seats
placed at the disposal of the Government of India or other States.
Under Rule 7 certain number of seats have to
be reserved for specific categories of candidates passing the pre-medical
examination as below :
1. Fifteen percent shall be reserved for
women candidates;
2. Fifteen percent shall be reserved for each
of the categories of Scheduled Caste and Scheduled Tribes candidates;
3. Seats not exceeding 3 percent may be
reserved for children of military personnel who have to produce the necessary
certificates.
Apart from those reservations, under Rule 8
seats not exceeding 3 per cent are reserved for nominees of the Government of
India and three seats are reserved for candidates nominated by the Government
of Jammu and Kashmir in consideration of three seats reserved in the medical
colleges in that State for candidates of the State of Madhya Pradesh.
189 Under Rule 20, selection of candidates
from amongst those who had appeared and qualified in the written examination
shall be made strictly on merit as disclosed by the total number of marks
obtained by a candidate in the pre-medical examination. The qualifying marks
for admission shall be 50 per cent in the aggregate and 33 percent in each of
the subjects. For Scheduled Castes and Scheduled Tribes candidates the minimum
qualifying marks shall be 45 per cent in aggregate and 30 per cent in each of
the subject. In case the required number of candidate for admission are not
available according to the above percentage of qualifying marks the Board
conducting the pre-medical examination under Rule 2 shall have power to lower
the marks up to S per cent in the aggregate for all categories of candidates.
If even with the relaxation granted by the Board, as above, required number of
candidates in the categories of Scheduled Castes and Scheduled Tribes are not
available for admission the Government has power to grant special relaxation in
the maximum qualifying marks to the extent considered necessary.
Under Rule 9, in case sufficient numbers of
candidates do not qualify for admission under any reserved category and any
seats remain vacant, such vacant seals shall be fined by preparing a combined
merit list of all the remaining categories of candidates on the waiting list
and the candidates shall be admitted according to merit in the list so
prepared.
It is not necessary to refer to any of the
other rules for the purpose of this appeal.
Indisputably, the appellant belongs to the
third category of seats reserved under Rule 7 as he is a son of a military
personnel settled in Madhya Pradesh. Sons and daughters of military personnel
of Madhya Pradesh are entitled to 21 seats in all out of 720 seats available in
the six medical colleges in the State. As per the minimum number of qualifying
marks prescribed in Rule 20, namely, 50 per cent in the aggregate and 33 per
cent in each of the subjects, children of military personnel secured only 8
seats, and 13 seats in that category remained vacant and all other categories
secured only 361 seats and 338 seats of those categories remained vacant. The
appellant did not qualify for admission on the basis of the marks specified in
Rule 20 for the academic year 1979-80. Then the Board applied Note (1) to Rule
20 which provides for lowering the minimum qualifying marks up to 5 per cent in
the aggregate for all categories of candidates. After that was done 6 more
candidates 190 belonging to the category of sons and daughters of military
personnel and 274 more candidates belonging to all other categories secured
admission and 7 seats belonging to the category of children of military
personnel and 64 seats of all other categories remained vacant. Even then the
appellant could not secure admission as he had secured only
43.6 per cent of marks in the aggregate and
33 per cent in each of the subjects in the pre-medical examination and in the
merit list prepared according to rule 9 he ranked 74 and only 71 candidates in
that list could be admitted on the basis of merit.
Then the Madhya Pradesh Government issued an
executive notification dated 10 March, 1980 regarding relaxation of qualifying
marks for the purpose of admission to the medical colleges. That notification
is to the effect that for the year 1979-80 candidates who have obtained at
least 43 per cent of marks in the aggregate in the pre-medical examination
shall be admitted to the medical colleges in the unfilled seats on the basis of
merit according to the rules.
ordinarily, the appellant who had secured
43.6 per cent of marks in the aggregate in the pre-medical examination and
another candidate in the category of children of military personnel should have
got admission after the lowering of the minimum qualifying marks to 43 per cent
in the aggregate, leaving 5 seats in that category still vacant.
But Rule 9 was applied and a combined list of
all the remaining categories on the waiting list was prepared and the
candidates were admitted according to merit in the list so prepared and
consequently the appellant who belongs to the category of children of military
personnel and had secured 43.6 percent of marks in the aggregate in the pre-
medical examination could not secure admission. These facts are not in dispute.
The appellant filed a writ petition for the
aforesaid relief contending that as minimum qualifying marks have been reduced
by the Notification dated 10 3.1980 to 43 percent in the aggregate and as he
had secured 43.6 percent marks he should have been given admission in the
category to which he belongs. The writ petition was at first heard by K. K. Dube
and A.R. Navkar, JJ. A.R. Navkar, J, who decided in favour of the appellant,
had observed in his judgment thus:
"The reduction of percentage of marks
for admission by the Government on 10.3.1980 (Annexure II) clearly shows that
the candidates who got 43 per cent of marks 191 will be eligible for admission.
There is no dispute that the petitioner got 43.6 per cent of marks in the
pre-medical examination. Therefore, applying this order of reduction of
qualifying marks (Annexure II), I am of the opinion that the right of the
petitioner for admission in the medical college cannot be defeated by resorting
to Rule 9 of the Rules. As mentioned above, Rule 9 of the Rules, in my opinion,
is a mandatory one.
It says, if any seats remain vacant, such
vacant seats shall be filled in by preparing a combined merit list of all the
remaining categories of candidates on waiting list. This was not done when the
percentage of marks for admission was reduced from 50 per cent to 45 per cent
for all categories. Therefore, in my opinion, it cannot be done to defeat the
right of the petitioner...`I am of the opinion that the present petitioner
cannot be denied his right of admission to the medical college if he is
otherwise eligible to get admission. Denial of admission to him by purporting
to act on the strength of Rule 9 of the Rules, in my opinion, will not be
justified and will amount to denial to him the protection given to him by
Article 14 of the Constitution. The result, therefore, is that the petition
deserves to be allowed..." But K.K. Dube, J. who took the opposite view
has, after extracting notification dated 10.3.1980, observed in his judgment
thus :
"The reduced qualifying marks limit is
only for filling up the vacant seats and the notification does not seek to
amend Rule 20 or substitute 43 per cent for 50 per cent marks in the aggregate
as minimum qualifying marks limit laid down under Rule 20. Indeed, the
notification does not state that the reduced qualifying marks limit is in
substitution of the one provided in Rule 20. That being the position, Rule 9
would necessarily operate and it is for selecting from amongst the candidates
for the number of seats remaining vacant by operation of Rule 9. The
petitioner's contention would have some substance if Rule 9 was not there. The
effect of Rule 9 is to wipe out the reservation for admission to any of the
reserved categories. The main idea is that the best candidates be given
admission to the medical colleges.
The reservation is for the purpose of
securing a concession and must operate in a like manner 192 as provided in the
Rules. The reservation is not absolute, and, therefore, when the minimum
qualifying marks were reduced to 43 per cent it was only for filling up the
vacant seats as obtained by operation of Rule 9 of the Rules, according to the
merit in the combined merit list. We are unable to agree with the contention
that the reduction in the eligibility to 43 per cent in the Government
notification dated March 10, 1980 could be availed of by the petitioner and
other similar candidates for filling up the 7 vacant seats in the reserved
quota of the children of military personnel".
The learned Chief Justice before whom the
matter came up on account of the difference of opinion between the two learned
Judges who originally heard the writ petition, as mentioned above, while
agreeing with K.K. Dube, J, has observed in his judgment thus :
"When even on reduction of qualifying
marks under Note (i) the required number of candidates do not qualify for
admission under any reserved category and seats remain vacant, Rule 9 begins to
apply and as directed by that Rule "such vacant seats shall be filled in
by preparing a combined merit list of all the remaining categories of
candidates in the waiting list and the candidates shall be admitted according
to the merit in the list so prepared". At this stage there is no further
scope for reservation. In other words, the reservation comes to an end after
the required number of candidates in a reserved category do not become
available on reduction of qualifying marks in the aggregate by the Board in
exercise of its power under Note (i) to Rule 20. It is generally expected that
there would be a long waiting list of qualified candidates in the general
category who would be available for filling in the seats transferred from a
reserve category to general category. In 1979, however, it so happened that
there were vacancies in the general category, that is, there were not
sufficient number of qualified candidates who could have exhausted the general
category under Rule 9. It is at this stage that the Government issued the order
dated 10th March, 1980.
It is in the interpretation and application
of this order that difference of opinion has arisen. The 193 Order has not been
issued under the Rules. It is an independent order. The order does not
expressly refer to any reservation. The order directs selection of candidates
for vacant seats on the basis of merit from those who had secured aggregate
marks up to 43 per cent. The order was passed at a stage when the reserved
categories had come to an end under Rule 20 read with Rule 9 as sufficient
number of candidates were not available. In my opinion, therefore, Dube, J. was
right in holding that the order dated 10th March, 1980 did not bring back the
reservation and selection had to be made on the basis of a combined merit list
for all the vacant seats irrespective of whether they originally belong to any
reserved category.....
There is yet another important factor to be
taken notice of. Not only the vacancies in the reserved category of children of
military personnel but there were also vacancies in the category of women to be
filled in on the basis of a combined merit list and no reservation was at all
allowed in working out the order of 10th March, 1980. The way in which this
order was applied by the Board had apparently the approval of the Government
and no other candidate excepting the petitioner has come forward to challenge
its application. As already pointed out, the order is not a statutory order. It
is an order passed by the State Government in the exercise of its executive
power. The Government's approval of the manner in which the Board has applied
the order goes to show that that was the intention of the Government in passing
the order.
Although the approval of the Government of a
particular mode of application of an order is not decisive of its meaning and
it is for the Court to decide the correct meaning, still when the meaning of an
order which is purely executive is in doubt the way in which it has been
applied by all concerned is a relevant factor to be taken into account in
deciding its true meaning. The uniform application of the order by the Board
with apparent approval of the Government for filling in all the vacant seats,
goes a long way to show that the Government intended that the order should be
applied by preparing a common merit list without continuing the reservations.
In these circumstances, even if the interpretation put forward by the learned
counsel for 194 the petitioner and accepted by Navkar, J. can be accepted as a
possible interpretation of the order, it would not be right for me to hold that
it conveys the true meaning" We are inclined to agree with the conclusion
reached by A.R. Navkar, J., though for different reasons. The matter is simple.
Under Rule 20, the minimum number of marks prescribed for admission into the
Medical Colleges in the State is 50 per cent in the aggregate and 33 per cent
in each of the subjects. On that basis, out of the total of 720 seats available
in all the six medical colleges in the State only 8 out of 21 of the category
of sons and daughters of military personnel, and only 361 out of 699 available
for all other categories could be and were admitted in the academic year
1979-80. Rule 9, which has been relied upon by the respondents as well as by K.
K. Dube, J. and the Chief Justice says that in case sufficient number of
candidates do not qualify for admission under any reserved category, barring,
of course, the category of Scheduled Castes and Scheduled Tribes candidates,
and any seats remain vacant, such vacant seats shall be filled by preparing a
combined merit list of all the remaining categories of candidates on the
waiting list and the candidates shall be admitted according to merit in the
list so prepared. But that Rule was not applied by the respondents and could
not be applied under the circumstances of the case when 338 seats in all other
categories and 13 seats of the category of sons and daughters of military
personnel could not be filled in 1979- 80 on the basis of the said minimum
number of qualifying marks, namely, 50 per cent in the aggregate and 33 per
cent in each of the subjects. Then Note (1) to Rule 20 providing for lowering
of the qualifying marks up to 5 per cent in the aggregate for all categories
was applied. Even then 64 seats of all other categories and 7 seats of the
category of sons and daughters of military personnel could not be filled and
remained vacant. Then the Government by an executive order issued the
notification dated 10th March, 1980 reducing the minimum qualifying marks to 43
per cent in the aggregate, and it is only at this stage Rule 9 was applied with
the result that in the category of sons and daughters of military personnel
only 2 more candidates could secure admission and 7 seats of that category had
to be filled by other categories. We are of the opinion that since the minimum
qualifying marks were reduced to 43 per cent by an executive order without any
provision therefor in the statutory rules, Rule 9 of the statutory rules could
not be applied at that stage, and that the appellant who had secured 195
43.6 per cent of marks in the aggregate
should have been admitted in the category to which he belongs. We think that
the difference between 45 per cent in the aggregate, to which the minimum
qualifying marks were reduced under Note (1) to Rule 20 and 43.6 per cent of
marks in the aggregate secured by the appellant is so little that it could not
be a valid or sufficient reason for giving a go-bye, on the ground of merit, to
the reservation provided for in Rule 7 of the Rules. The appellant deserves to
be admitted even for this reason. In these circumstances we are unable to agree
with the view taken by K.K. Dube, J. and the Chief Justice, and we agree with
the conclusion reached by A.R. Navkar, J.
The appeal is accordingly allowed without any
order as to costs. As already directed the appellant shall be admitted to the
M.B.B.S. course for the academic year 1981-82 in the category mentioned in Rule
7 (3) (c) of the Rules.
S.R. Appeal allowed.
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