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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: MINO0 NOAZER KAVARANA & ORS.

DATE OF JUDGMENT24/04/1989

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) THOMMEN, T.K. (J)

CITATION:  1989 AIR 1513            1989 SCR  (2) 710  1989 SCC  (2) 626        JT 1989  Supl.    135  1989 SCALE  (1)1055

ACT:     Professional  Colleges--Admission to.  Medical  Colleges run    by   Municipal   Corporation/State   Government    in Bombay--Reservation   of   seats  for  local   and   outside students--Validity of--No unreasonableness or impropriety in State  Government filling up the local seats  first-Creation of   additional   seats--Concurrence   of   Indian   Medical Council--Necessity for.

HEADNOTE:     The  appellant-State by virtue of the judgment in  Nida- marti  Maheshkumar v. State of Maharashtra & Ors., [1986]  2 SCC 534, after providing 15 per cent of seats under the  All India  Quota  and under Article 15 of the  Constitution  for admission  to MBBS course, laid down the policy of  reserva- tion  of the remaining seats for local students in the  city of  Bombay and for students from outside Bombay  but  within the State of Maharashtra, in the ratio of 70:30.     In  the  writ petitions preferred by the  respondents  a Single  Judge  of the High Court took the view that  30  per cent of seats meant for students from outside Bombay  should have been filled in before 70 per cent of seats were  filled in  by  local  students. The Division  Bench  dismissed  the Letters  Patent Appeal by the State. In the  Letters  Patent Appeals  by  the respondents it directed  creation  of  five additional  seats  in each of the  three  Municipal  Medical Colleges and four additional seats in the Government Medical College. Allowing the appeals,     HELD: 1. There was no unreasonableness or impropriety in the  State Government’s decision to fill up 70 per  cent  of seats  first.  The question whether the seats  reserved  for local  students or for those residing outside Bombay  should be filled up first was not within the purview or the  juris- diction  of  the Court. The High Court was,  therefore,  not justified in directing admission on the basis of filling  up 30 per cent of seats first. [713C-D] 2.  The Additional seats can be created only if  the  Indian Medical 711 Council approves of it. There is also the question of  bear-

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ing the cost of creation of such seats. In the instant case, neither  the Government nor the Indian Medical  Council  had consented to such creation. In exceptional circumstances and for  ends of justice, the court may direct the  creation  of one or two seats after giving the Indian Medical Council  an opportunity  of  being  heard. The  High  Court,  therefore, should not have directed the creation of so many  additional seats. [713E-G]     [Appropriate  directions  issued for admission  to  four seats in the Grant Medical College in Bombay and thirty four seats  in  the other Bombay available under  the  All  India Quota.]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2488  of 1989 etc. etc.     From  the  Judgment and Order dated 24.1.  1989  of  the Bombay High Court in Appeal No. 67 of 1989.     G.  Ramaswamy, Additional Solicitor General, A.M.  Khan- wilkar and A.S. Bhasme for the Appellant.     T.R.  Andhrujina,  R.F. Nariman, Mrs. K.K.  Pradhan,  R. Karanjawala, Mrs. Manik Karanjawala, H.S. Anand, P.B.  Agar- wal, P.G. Gokhale, R.B. Hathikhanawala, K.R. Nagaraja,  R.S. Hegde, S. Menon, M.C. Shah, Madan Lokur, Adur Sanjay Vasant, and Mrs. Urmila Sirur for the Respondents.     Mrs. Kitty Kumaramangalam, Kailash Vasdev, Ms. Vijaylax- mi and S.P. Pandey for the Intervener. The Judgment of the Court was delivered by     DUTT, J. Special leave is granted in all these  matters. Heard learned Counsel for the parties.     These  appeals  preferred by the  State  of  Maharashtra involve the question as to the admission in the MBBS  Course in the Medical Colleges in the State of Maharashtra. In  the city of Bombay, there are three Medical Colleges run by  the Municipal  Corporation of Greater Bombay. Besides  the  said three  Municipal Colleges, there is another College in  Bom- bay,  namely, Grant Medical College, which is  a  Government College run by the Government of Maharashtra. 712     Shorn  of all details, it may be stated that after  pro- viding  for 15 per cent of seats under the All  India  Quota and  the seats which are to be reserved under Article 15  of the  Constitution  of India, the Government  of  Maharashtra laid  down  a policy of reservation of 70 per  cent  of  the remaining seats for the local students in the city of Bombay and  30  per cent of seats for the students  outside  Bombay within the State of Maharashtra.     Certain students feeling aggrieved by the said method of filling  up  of  the seats in the MBBS Course  in  the  said Medical Colleges in the city of Bombay moved writ  petitions before the Bombay High Court. A learned Single Judge of  the High Court took the view that it was not proper on the  part of  the State Government to first of all fill up the 70  per cent  of  the  seats out of the local  Bombay  students  and thereafter  the remaining 30 per cent of seats from  amongst the  students  residing outside Bombay. The  learned  Single Judge, however, gave no specific direction as to the  admis- sion  of  the  writ petitioners, but left it  to  the  State Government  for the purpose. The State of  Maharashtra  pre- ferred a Letters Patent Appeal to the Division Bench of  the High  Court. The said appeal was summarily dismissed by  the Bench  holding  that the two points urged by  the  Assistant Government  Pleader appear to be quite frivolous.  The  writ

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petitioners also preferred Letters Patent Appeals before the Division  Bench.  From time to time, the Bench  passed  some orders. The only order which is relevant for the purpose  of these appeals is dated February 8, 1989. By that order,  the Division  Bench  of the High Court directed  creation  of  5 additional seats in each of the three Municipal Colleges and 4  additional seats in the Government Medical College,  that is,  in  all, 19 additional seats. Certain  directions  were also  given by the said order for admission of  students  in those  additional  seats and also the seats  under  the  All India Quota.     It  has  been  strenuously urged by  Mr.  G.  Ramaswamy, learned Additional Solicitor General appearing on behalf  of the State of Maharashtra, that the High Court was not justi- fied  in directing that the 30 per cent of seats  meant  for the candidates outside Bombay to be filled in before the  70 per cent of seats are filled in by local candidates. It  may be  stated at this stage that by virtue of the  judgment  in the  case of Nidamarti Maheshkumar v. State  of  Maharashtra and others, [1986] 2 SCC 534 relating to admission in  Medi- cal  Colleges in Maharashtra, the State of Maharashtra  laid down  the policy of regional reservation of 70 per  cent  of seats for the region of Bombay and the remaining 30 per cent of  seats for the candidates outside Bombay but  within  the State  of Maharashtra. It has already been noticed that  the High Court 713 iS  Of  the view that the 30 per cent of seats  should  have been filled up first and, thereafter, 70 per cent of region- al  seats should have been filled up. We have not been  able to understand the reason for this view of the High Court. If 30 per cent of seats are filled up first, the candidates who are  residing outside Bombay will have to compete  with  the local Bombay students who are also eligible for admission in the  said  seats. It may so happen that most  of  the  seats meant for candidates outside Bombay may be filled up by  the local  Bombay candidates. If, however, 70 per cent of  seats are  filled up first, the more meritorious  Bombay  students would  be  admitted and those, who would  not  be  admitted, would obviously be candidates obtaining lesser marks and  it will not be difficult for the outside candidates to  compete with  them for the said 30 per cent of seats.  The  question whether 70 per cent of seats or 30 per cent of seats  should be filled up first is a question which should be left to the discretion of the Government. In our opinion, this aspect is not within the purview or the jurisdiction of the Court.  We do not find any unreasonableness or impropriety in the State Government’s decision to fill up 70 per cent of seats first. The  High Court was not, therefore, justified  in  directing admission  on  the basis of filling up 30 per  cent  of  the seats  first and, thereafter 70 per cent of seats  and  such direction has created some complications in the matter.     There  is  considerable force in the contention  of  Mr. Ramaswamy  that  the High Court was also  not  justified  in directing creation of additional seats. The additional seats can  be created only if the Indian Medical Council  approves of  such creation. In the instant case, the  Indian  Medical Council has vehemently opposed before us the creation of the additional seats. There is also the question of bearing  the cost of creation of additional seats. The High Court, in our opinion, should not have directed the creation of additional seats. In exceptional circumstances and for ends of justice, the Court may direct the creation of one or two seats  after giving  the Indian Medical Council an -opportunity of  being heard,  but surely the Court should not direct the  creation

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of so many additional seats when neither the Government  nor the Indian Medical Council consents to such creation. In the circumstances,  it  is  difficult to  sustain  the  impugned judgment of the High Court.     We are told by the learned Additional Solicitor  General that  4 seats in the Grant Medical College in Bombay and  34 seats in the other Medical Colleges outside Bombay under the All  India  Quota are available for admission. We  are  also told that there are about 30 candidates who are to be admit- ted in these seats. Of these 30 candidates, we find 714 that  one  Sandeep Chaudhary and Miss Chaudhary  Seena,  the applicants  in  Civil Miscellaneous Petitions Nos.  9049  of 1989 and 9050 of 1989 respectively, were already admitted in the  2  out  of the 4 seats in the  Grant  Medical  College, Bombay. They were initially admitted in the Gwalior  Medical College,  but on their representation they were  transferred to the Grant Medical College, Bombay, by the Director Gener- al of Health Services in compliance with the guidelines laid down  by this Court in its judgment in the case  of  Amanjit Singh Gill v. Directorate General of Health Services, [1989] 1 SCC 231, but in view of the impugned judgment of the  High Court they have been thrown out for no fault of theirs.  The admission  of  these  two candidates in  the  Grant  Medical College,  Bombay, is restored and will not be disturbed.  So far as the remaining 36 seats are concerned (2 seats in  the Grant  Medical College. Bombay, and 34 seats in the  Medical Colleges Outside Bombay), the admission to these seats shall be  made  strictly in order of merit. The  appellants  shall complete  the admissions in the said 36 seats within a  week from today.     The  impugned judgments of the High Court are set  aside and  the appeals are allowed to the extent indicated  above. There will be no order as to costs.     The writ petitions and all other applications for inter- vention  are also disposed of as above without any order  as to costs. P.S.S.                            Appeals allowed. 715