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 198182 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 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 premedical 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.
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 number 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 upto 5 per cent in the aggregate for all categories of candidates. After that was done 6 more candidates 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 premedical 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
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
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
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
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 197980 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 upto 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 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.