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PETITIONER: AMITABH SHRIVASTAVA

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT04/02/1982

BENCH: VARADARAJAN, A. (J) BENCH: 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  number  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 number 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 a 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

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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]

JUDGMENT:      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

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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 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

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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 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

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    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

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    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

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    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 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 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.

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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. 196