Secretary,
Selection Committee (MBBS) Vs. N. Anirudhan & Ors [2003] Insc 162 (12 March 2003)
Shivaraj
V. Patil & Arijit Pasayat
(Arising
out of SLP (C) Nos. 19429-19430/2002) ARIJIT PASAYAT J
Leave
granted.
Challenge
in these appeals is to the directions given by a learned Single Judge
undisturbed by the Division Bench of the Madras High Court in Writ Appeal Nos.
1736 and 1737 of 2002.
Factual
scenario which is almost undisputed and leading to the appeals is as follows:
The
respondents were admitted to the MBBS degree course. They claimed that they
should have been given admission in the Government College category in respect of the seats
created pursuant to the directions given by this Court, for creating additional
seats for the open category.
They filed
writ petitions before the High Court contending that some students who had
secured lesser marks than them had been admitted in the Government College category.
The
Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation
of seats in educational Institutions and of appointment or posts in services
under the State) Act, 1993 (hereinafter referred to as the 'Act') was enacted
by the State of Tamil Nadu. Prior to its enactment, the ratio
of admission was as follows:
Open
category 50% BC/MBC 31% SC 18% ST 1% After enactment of the Act, the communal
reservation to be followed in the admissions was 31% to open competition
candidates, while the rests 69% was allotted to BC, MBC, SC and ST candidates.
Constitutional validity of the provisions of the said Act was challenged before
this Court in SLP (C) No. 13526/1993. Pending final orders, an interim order
was passed on 18.8.1994. Essence of the order is being followed for various
academic years.
The
writ petitioners contended that they had secured 292.54 and 292.43 cut off
marks. They were selected and allotted to Perundurai Medical College under free seat category by following the 69% reservation
rule. Certain additional seats were created pursuant to the directions given by
this Court. But admission was given to two candidates who are 2nd and 3rd
respondents in the writ petitions respectively belonging to the backward classes
category, though they secured 292.08 cut off marks. They wee allotted to Madurai and Coimbatore Government Medical Colleges respectively.
Grievance
of the writ petitioners was that they were entitled to be allotted to the seats
in Government Medical Colleges and not the 2nd and 3rd respondents in the writ
petitions. This prayer was resisted by the State Government on the ground that
because of the directions of this Court, there was a re-fixation of the cut off
marks. The cut off marks for the open category candidates stood lowered to
293.18 from 294.52. Since writ petitioners had secured lesser marks, they were
not entitled to be admitted.
Learned
Single Judge of the High Court directed that on the factual position as
highlighted by the parties, the writ petitioners were entitled to be admitted
to the allotment in Government seats in Government Medical Colleges. However,
the allotment to the 2nd and 3rd respondents in the writ petitions was not
disturbed. The order passed by learned Single Judge came to be challenged
before the Division Bench which by the impugned order was dismissed. It was
noticed that the learned Single Judge had passed an order on the basis of the
directions given by this Court and had given valid reasons for allowing the
writ petitions.
Learned
counsel appearing for the appellant submitted that the approach of the High
Court was erroneous. The order passed by this Court on 18.8.1994 clearly
indicated the position as regards the number of seats to be allotted to various
categories. The seats were filled up by the concerned authorities strictly
complying with the directions of this Court. It is further submitted that by
giving admission to the writ petitioners virtually new seats have to be created
for them which will be against the law laid down by this Court in Medical
Council of India v. Madhu Singh and Ors. (2002 (7) SCC 258).
Per
contra, learned counsel for the respondents-writ petitioners submitted that the
data furnished by the appellant clearly indicate as to how misleading
information is being given. According to him, the data clearly indicates that
directions of this Court have not been complied with.
In
Voice (Consumer Care) Council v. State of Tamil Nadu (1996 (11) SCC 740) this court indicated the purport of the order dated
18.8.1994 which is as follows:
"First,
make the admissions applying the rule of 69% reservation in favour of Backward
Classes, Scheduled Castes and Scheduled Tribes. Second, the additional seats
created by virtue of the orders of this court be filled with the general
category candidates.
The
number of seats so created was equal to the number of seats which the general
candidates would have got if the rule of fifty per cent total reservation had
been applied.
This
order in effect respected the rule of 69 per cent devised by the Government of
Tamil Nadu and sanctioned by the Tamil Nadu Act 45 of 1994 while, at the same
time, removing the grievance of the general category candidates by creating
additional seats for them for that year. In other words, the sanctioned
strength of seats in every college are being allotted exclusively in accordance
with the sixty-nine per cent reservation rule. Only the additional seats, which
are created by and only because of the orders of this Court are being provided
to general category candidates on the basis of merit, which category includes
Backward Classes, Scheduled Castes and Scheduled Tribes as well. It is
significant to notice in this connection that according to the figures supplied
by the Government of Tamil Nadu for the Academic Years 1993-94 and 1994- 95,
more than eighty per cent of the seats in the general category are being taken
away by the students belonging to Backward Classes on the basis of their own
merit. As fully explained and illustrated in the order dated 18.8.1994, the
students belonging to Backward Classes are getting fifty per cent of the total
seats on the basis of reservation and more than 80 per cent of the seats in the
general category (open competition category) on the basis of their own merit.
There is no reason to believe that the situation is different this year. Thus,
the bulk of the additional seats directed to be created by this Court year
after year (since 1994-95) are again going to students belonging to Backward
Classes. The order of this Court is thus not only upholding the rule of fifty
per cent ceiling on reservation affirmed by the Special Bench of this Court in Indra
Sawhney v. Union of India (1992 Supp (3) SCC 217) but is in truth operating to
the advantage and benefit of a number of Backward Class students. Many of the
Backward Class students, along with certain other candidates belonging to non-reserved
categories, who would not have otherwise got admission into these courses, are
getting seats by virtue of these orders. And yet it is surprising to note that
the Government of Tamil Nadu has chosen to ask for modification of the order
dated 22.7.1996. The said order is only interlocutory in nature. Pending
decision of the several constitutional and legal questions raised in these
matters, it was supposed to be an equitable order harming no one. If at all, it
benefited some who would not have been able to obtain admission otherwise and
surely that fact cannot be a ground of grievance for the State of Tamil Nadu. Only as an interim measure,
certain additional seats are being created and they are being allotted to
general category candidates which in Tamil Nadu really means providing the bulk
of them to students belonging to Backward Classes." It has been rightly
submitted by the learned counsel for the appellant that there is no scope for
any increase of seats without specific permission from the concerned
authorities as was held in MCI's case. The directions given by this Court, as
extracted above, are clear and unambiguous. The only controversy is whether
there has been proper implementation of the order. We find that learned Single
Judge and the Division Bench have categorically noted that persons belonging to
open category who had secured lesser marks than the writ petitioners, were
admitted to the Government Medical Colleges. From the data furnished, we find
that there were several absentees from amongst those selected in the open
category in relation to the Government Medical Colleges. Additionally, two
seats were directed to be kept vacant by learned Single Judge which position
continued on confirmation of the Learned Single Judge's order by the Division
Bench.
In the
peculiar circumstances without elaborate deliberations of the controversy
involved in the main case which is pending before this Court, it would be
appropriate if the writ petitioners (respondents in the present appeals) are
admitted in the Government Medical Colleges. Obviously, this direction would
not amount to creation of additional seats and has to be done within the
sanctioned seats strength of the concerned Government College. As noted above, there were several
absentees and the interim order passed by the learned Single Judge continued to
be operative on confirmation by the Division Bench as the writ petitions were
decided in favour of the writ petitioners. Let the necessary steps be taken to
admit the writ petitioners (respondents in the present appeals) within three
weeks from today. Such admission shall be without prejudice to the claims
involved in the main petition pending before this Court. We make it clear that
we have not made any departure from principles as laid down in MCI's case
(supra) and have passed this order taking note of the undisputed factual
position of the case.
The
appeals are accordingly disposed of.
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