Andhra HC (Pre-Telangana)
Y. Raghavendra vs Nrt University Of Health Sciences, ... on 20 April, 1999
Equivalent citations: 1999(3)ALD264, 1999(3)ALT284, AIR 1999 ANDHRA PRADESH 261, (1999) 3 ANDHLD 264, (1999) 3 ANDH LT 284, (1999) 3 ESC 1913, (1999) 4 SERVLR 17
Author: J. Chelameswar
Bench: J. Chelameswar
JUDGMENT
1. This batch of writ petitions are filed challenging the action of the first respondent praying this Court :
".... may be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the procedure adopted by the University authorities in making the selection and admission into the 1st Year MBBS Course for the academic year 1998-99 is contrary to law and illegal and consequently set aside the provisional admissions made in pursuance of the Notification dated 21-11-1998 and further direct the respondent University to make the selection strictly in accordance with the principles enunciated by the Supreme Court in Ritesh R. Sah case and grant such other relief, as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. It is agreed by all the learned Counsel appearing on behalf of the various parties that Writ Petition No.33489 of 1998 can be treated as representative of all the Writ Petitions and the facts as averred in the said writ petition be taken as the basic facts for the purpose of determining the issue. All the petitioners claim to belong to Backward Classes and claim that they have appeared for EAMCET-1998 Entrance Examination held on 14-5-1998. The details of the ranks obtained by each of the petitioners are given in the annexures to the affidavits filed in support of the writ petitions. In substance the case of the petitioners is that, the process of allotting seats to the various reserved categories of students like Backward Classes, Scheduled Caste and Scheduled Tribes, adopted by the first respondent-University, which is admittedly the competent authority to make the allotment is illegal and violative of Article 14 of the Constitution of India as explained by the Apex Court in the case of Ritesh R. Sah v. Dr. Y.L. Yamul, .
3. It appears that the first respondent-University initially issued a notification dated 1-8-1998 notifying that the selection for the provisional admission for the first year MBBS, Course for the academic year 1998-99 will be held on 8-8-1998 to 14-8-1998 at the Osmania University College, Hyderabad. The notification further read (insofar as it is relevant for our purpose) as follows :
"..... The BC, SC & ST Candidates selected under Open Competition will be re-allotted later to the College of higher option by shifting the same category candidates with lesser rank to the resultant vacancies as per the option given in the application form."
4. In the meanwhile, there were some writ petitions filed questioning the ranks assigned to the candidates in this Court and in view of the certain interim directions passed by this Court earlier, the selection process scheduled between 8-8-1998 to 14-8-1998 was postponed. Subsequently, another notification dated 12-11-1988 was issued by the first respondent-University, indicating the selection will be held from 21-11-1998 to 3-12-1998 and in the said notification the clause which is extracted above in the original notification dated 1-8-1998 is dropped; instead a new clause was inserted, which reads as follows :
"As per the notification dated 21-11-1998 all the candidates upto Rank 1200 would be called during 27-11-1998 to 30-11-1998 and on 1-12-1998 all the BC, SC & ST candidates will be called upto Rank 2400. The counselling is scheduled upto 3-12-1998."
5. According to the petitioners, the respondent-University has no! followed the Rules framed under the G.O. Ms. No.184 Education dated 20-8-1993, which Rules deal with the admission into Under-Graduate Professional Courses. The said Rules arc framed in pursuance of the power conferred under Section 15 of the Andhra Pradesh Educational Institutions & Prohibition of Capitation Act (Act No.5 of 1983). The factual averments in support of such an allegation are as follows :
"..... However that procedure has not been followed for admission into the MBBS Course for the academic year 1998-99. The Committee has insisted that the candidate should exercise his option as per the choice given along with the application. The candidate also given another set of option form before entering into the Counselling which is filed in the material papers. Thereby giving his preference to the seat under two captions :
(A) OC/Reservcd ategory (B) Local /Unreserved Category;
Those under Category 1, tile candidates should choose seat under Open Competition or under Reserved Category" in the choice of Colleges which he has already submitted along with application form. Similarly he was also required to choose local or unreserved category with reference to the choice of institution already exercised. Thus at the time of appearing before the Selection Committee itself, the choice of the candidate has been restricted to the Institution and he was also forced to exercise option to Open Category or Reserved with particular Institution only in the event the scat is not available in both Open Category or Reserved Category, his candidature was considered with regard to the second option institution. The said procedure devised by the University is wholly illegal and contrary to the statutory rules framed by the Government."
According to the petitioners, in view of such a deviation from the procedure prescribed under the Rules, some of those candidates belonging to the Backward Classes were treated as Candidates belonging to the Backward Classes, though they are more meritorious than some of the Open Category students and therefore the principle laid down in Ritesh R. Shah's case (supra), is violated, consequently resulting in loss of seats to the other (Backward Classes) candidates who would have obtained seats in Medical Colleges, if only the above-mentioned Category of students belonging to the Backward Classes were treated as candidates entitled for a seat in Open Competition in view of their rank. The pleading in this behalf is as follows :
"It is submitted that on the ground that the BC Candidate has claimed BC seat in the institution which he had already opted to at the time of submitting the application form, he has been treated as BC Category candidate but the BC candidate next in the merit list has been deprived of the seat on the ground that BC seat has already been filled up by higher ranking candidate.
It is submitted that in the Osmania University Area there are 500 seats in the Government Colleges, i.e., Osmania Medical College. Gandhi Medical College and Kakatiya Medical College. The open Category candidates upto Rank No.731 have been provided seats in the seats earmarked for Open Category. However BC "B" candidate? at Rank No.260, 293, 296, 300, 303, 312, 324, 354, 367, 372, 380, 381, 383, 391, 410, 423, 447, 471, 481, 493, 500, 503, 511, 526, 552, 567, 592, 629 & 649. Similarly BC "A" candidates of Rank Nos.362, 416 and candidates of BC "D" Rank Nos.278, 452, 472, 500, 553, 558 & 583 have been treated as BC Category candidates although they have secured higher ranks than the last Open Category candidate i.e., Rank No.731 in the Osmania University local area....."
6. A counter-affidavit is filed by the first respondent-University. The relevant portion of the counter-affidavit reads as follows: (Paras 4, 5 & 10) "4. With reference to paragraphs 13 & 14 it is submitted that as per the Division Bench Judgment of this Honourable Court the reservation of 85% seats and 15% of seats have to be made in such a way the 85% of the seats in each college are filled with local candidates and the remaining 15% seats are filled with open candidates and further that the Rule of reservation for SCs, ST, and BC communities and other reserved categories specified in Clause (3) of said Rule 4 of Rule 8 of G.O. Ms. No. 184, dated 20-3-1993 are maintained both in respect of local candidates (85%) and open candidates (15%). The claim of any candidate belonging to a reserved category for a seat either in the O.C. category or the concerned B.C. category has to be considered keeping the above direction, of this Honourable Court in the said judgment. The admissions have been made keeping this principle in mind. The option forms are furnished to the candidates at the time of selections. They will form part of record for the choice exercised by the candidate.
5. The allegations in para 15 is not correct. The candidates who appeared in the interview before the selection committee were given option of choosing the institution of his/her choice- But the same was considered keeping in view the other direction of this Honourable Court with regard to the reservation of local and non-locals institution-wise. It is submitted that there was no force, on any candidate, in the exercise of the option by him/ her. However option has to be exercised as to whether the candidate wanted to take a seat as OC or from the quota reserved for BCs. Acceptance of such choice will depend upon the individuals MERIT and the ranking the particular category or College. As the reservation of locals, SCs, STs and BCs. have to be maintained institution-wise also, the choice of the candidate has to be considered on the basis of his/her rank in the particular category in the particular College.
10. With reference to paragraph 20, it is submitted that along with this counter affidavit a separate annexure showing the particulars of candidates whose ranks are referred to in this paragraph is filed. This annexure would indicate the rank of the individual, the college which the candidate would have obtained as O.C. candidate, the option exercised by the candidate and the college in which the candidate was admiited. There is no illegality in the said admissions. None of these persons' who are admitted has any grievance. Admissions have been made as per their rank and as per their option, subject to the restrictions placed in the Division Bench Judgment of this Honourable Court about maintaining the reservations institution-wise also. It is submitted that for the purpose of seeing that a meritorious candidate is admitted in particular college, the college has to be taken as a unit whether it is in O.C. category or in B.C. category. The petitioners are showing the entire area as one unit. This is not correct. While maintaining the reservations ratio in the local area as per the judgment of the Division Bench, the ratio in the institution also has to be maintained. For this purpose the entire University area cannot be taken into account. There is nothing illegal in the admissions made and the directions of this Honourable Court in the -said Division Bench Judgment have been followed. Insofar as State of A.P., js concerned there is a special constitutional provision-Article 371(D). While applying the principles laid down by the Supreme Court in Ritesh R.. Shah case, the Division Bench of this Honourable Court had given the directions about the maintenance of the ratio of reservations of all categories of candidates in local area as well as institution-wise."
7. Before embarking upon the enquiry into the issue in the case, it would be better to briefly outline the legal environment governing the situation. Article 14 of the Constitution of India prohibits the State from restoring to any kind of discrimination. Article 15 of the Constitution of India recognises that the State has the power to resort to protective discrimination in favour of the socially and economically backward classes of citizens having regard to the various historical and sociological factors. Apart from that discrimination on the basis of the geographical nexus is prohibited. But in view of the certain historical developments, the provisions of the Constitution were amended. Article 371-D is one such provision which was brought into existence by the Constitution 32nd Amendment Act, 1973, which permits the President of India to make special provisions with respect to the Slate of Andhra Pradesh in the matter of public employment and education. The said Article expressly recognises the power of the President to make different provisions for different parts of the State of Andhra Pradesh. Thus the Article 371D makes a departure from the general principle that the State cannot discriminate on the basis of geographical nexus.
8. In exercise of the constitutional power to make laws providing for protective discrimination as envisaged under Article 15 of the Constitution of India, the State of Andhra Pradesh from time to time made laws for the advancement of socially and educationally backward classes of citizens and Scheduled Castes and Scheduled Tribes in the area of educational opportunities. Those laws created reservation of seats in the educational institutions in favour of the various classes of citizens which require protective discrimination as recognised by the Constitution. Similarly, the President of India made an order in exercise of the power under Article 371D of the Constitution of India, known as 'The Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974. The said Order deal with certain preferences, to be given in the matter of admission into educational institutions to the "local candidates" which expression is defined under the Presidential Order.
Para 5 of the Presidential Order mandates that "admission to 85% of the available seats in every course of study" provided by the various Universities mentioned in the sub-paragraph or "by any educational institution which is subject to the control of the State Government" shall be reserved in favour of the "local candidates". This provision is a constitutionally recognised departure from the general principle of equality of law enshrined in Articles 14 and 15 of the Constitution of India.
9. As a matter of fact, education is provided by the various institutions at various levels; some of the educational institutions like the Universities are exclusively established and maintained by the State whereas schools and colleges impairing education are established in some cases by the State and in some cases by the various local bodies partaking the character of State and some others by private bodies.
10. Insofar as the educational institutions established and administered by the State and the local bodies are concerned, they are ipso facto governed by the various constitutional mandates in the matter of providing educational opportu-nities to the students. Coming to educational institutions established and maintained by the private colleges, in the absence of any positive law, it was believed for a long time that it is a matter of contract between the institution and the student; however, having regard to the letter and scheme of the Constitution, the Apex Court declared that even with reference to those educational institutions established and managed by the private bodies, certain constitutional obligations and restrictions exist which override the right of contract, Unni Krishnan v. Slate of Andhra Pradesh, .
11. In view of the practice prevalent in the State of Andhra Pradesh (and also elsewhere) of collecting exorbitant amounts of fees by the private educational institutions for the purpose of admitting students and recognising the fact that, permitting such a collection of fees, would result in indirect denial of equitable opportunities in the matter of education to the economically and socially backward classes of students, the State of Andhra Pradesh enacted a law in the year 1983 known as 'The Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fees) Act, 1983'. In the context of the present controversy, the relevant provisions of the said Act are the proviso to Section 3(1) and Section 3(2), which read as follows :
"Provided that admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the common entrance test conducted as aforesaid.
(2) The admission into educational institutions under sub-section (1) shall be subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes and Backward Classes (and other categories of students as may be notified by the Government in this behalf) and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974."
12. For giving effect to the legislative mandate contained in the above provisions and in exercise of power vested under Section 15 of the said Act, the State of Andhra Pradesh made rules titled as "Andhra Pradesh Professional Educational Institutions (Regulation of Admissions into Undergraduate Professional Courses through Common Entrance Test) Rules, 1993". Rule 1(2) thereof mandates, admissions to the Medical courses (apart from the other things) shall be made through a Common Entrance Examination.
Rule 3 thereof mandates that the "admissions shall be made in the order of merit on the basis of the ranking assigned to the students in the Common Entrance Test". Various other prescriptions such as the upper age-limit of the student seeking admission etc., are dealt under Rule 4 and particularly with reference to the Medical courses under Rule 4(3). Rule 5 deals with the method and manner of conducting the Common Entrance Test. Rule 6 deals with the preparation of Merit List and assigning the ranking. The relevant portion of which reads as follows :
"6. Preparation of merit list assigning ranking : The candidates who have secured qualifying marks in the Entrance Test and the candidates belonging to the Scheduled Caste and Scheduled Tribe communities to whom qualifying marks have not been prescribed, shall be assigned the ranking in the order of merit on the basis of the aggregate marks obtained in all the three relevant subjects out of the four subjects namely, Mathematics, Physics, Chemistry and Biology in which appeared.
(1) The Common Entrance Test Committee shall prepare the following categories of Merit lists separately for Engineering and Non-Engineering (Agriculture and Medical) Courses in the order of marks obtained by the candidates in the Common Entrance Test -
(a) State-wide Common Merit List : This list shall include candidates irrespective whether one belongs to any category of reservation quota or not basing on the marks obtained in the Common Entrance Test ;
(b) Region-wising Common Merit Lists: This list includes candidates belonging to the particular local area irrespective of whether one belongs to any category of reservation quota or not basing on the marks obtained in the Common Entrance Test;
(c) Concerned Minority Community Merit Lists : They include merit lists, containing the candidates belonging to " the concerned minority community arranged in the merit ranking assigned in the Common Entrance Test both State-wide and Region wise;
(d) Caste-Wise Common Merit Lists : There shall be separate Merit Lists for Scheduled Caste; Scheduled Tribes and each group of Backward Classes communities both as Statewide lists and Regionwise lists ;
(e) Merit list for other categories of reservations : There shall be separate merit lists for other categories of reservations mentioned under sub-rule (4) of Rule 8 State-wide and Regionwise."
13. Rule 6(4) requires that each candidate who had been assigned ranking in the Entrance Test shall be issued a rank card indicating the rank assigned to the candidate in the State-wide Merit List among other things.
14. If the State had stopped the prescription there, it would have been open to the individual students to make applications to any one or some or all the Medical Colleges seeking admission. In such an event, each one of the Colleges would be under an obligation to consider the case of every applicant for admission and decide the case of each applicant-whether such an applicant is entitled for admission into that particular institution having regard to the number of the available seats in the institution, the number of applicants with superior ranking, subject to, of course, the rules of various reservations mentioned earlier in this judgment.
15. However, the State did not stop there. It also provides under Rule 7 for the allotment of the students to the various colleges. Rule 7(8) postulates so:
"The Competent Authority shall select and allot the candidates for admission into various courses....."
As it is an allotment by the Competent Authority in order to eliminate an arbitrary process of allotment of students to the various Medical Colleges, sub-rule (6) of Rule 7 prescribed that an option be given to the individual candidates at the time of the interview insofar as the choice of the institution is concerned. However, the said sub-rule clarifies that the option of the student would be subject to the availability of the seat at the point of time when the option was made by the student as and when the students are called for interview on the basis of their ranking. In the case of a given student who opts for a particular college, when he is called for the interview, the Competent Authority is obliged to verify whether the student could be accommodated in that particular college having regard to the other factors like the claims of the candidates with superior ranks and reservations etc. On a consideration of such facts, if the Competent Authority comes to the conclusion that it is possible to accommodate the student in the institution of his first choice, then the student will be allotted to such an institution and if the Competent Authority comes to a conclusion that it is not possible to accommodate the student in the institution of the first preference, then his case will be considered with reference to the institution of his second preference and so on.
16. In the absence of any kind of reservation, there will be not be any difficulty in allotting the students to the various institutions. All the top rankers in the Merit List would get a seat in the institute of their choice, subject only to the limitation of the number of the available seats in that particular institution. But the issue gets complicated in view of the existence of the various categories of reservations as indicated earlier in this judgment.
17. Confining to the problem at hand, the issue whether the students belonging to the Backward Classes are selected and admitted to the various institutions in accordance with the rules referred to above and the law laid down by the Supreme Court in Ritesh R. Sah's case (supra).
18. Under Rule 8(2) of the rules mentioned above, 25% of the seats in each course in each institution shall be reserved for the candidates belonging to the Backward Classes and shall be allocated among the four groups of Backward Classes candidates in [he ratio indicated under this sub-rule. It is not the case of the petitioners that the seats in the various Medical Colleges are not earmarked for the candidates belonging to the Backward Classes as required under the Rules. But the case of the petitioners is that while allocating students belonging to the Backward Classes to the various Medical Colleges, some of the students, though they are eligible to be allotled a seat (on the basis of the higher ranks obtained by them) against a seat falling in the pool of Open Competition, are allotted a seat earmarked for the Backward Class candidates.
19. The legal position in this regard is earlier laid down by the Supreme Court in Ritesh R. Sah's case (supra), as follows:
".... In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category....."
The complaint in the present case is exactly that the respondents have not admitted students belonging to the Backward Classes though they arc entitled to be considered for allotment of seats (in view of the ranks obtained by them) against the Open Competition scats, but in fact have been treated as candidates belonging to the Backward Classes category, thereby depriving the other candidates belonging to the Backward Classes' opportunity of securing seats earmarked for the Backward Class community. The pleadings in this regard have already been extracted earlier.
20. The answer of the State in this regard, as can be seen from the extracts of the counter-affidavit earlier in this judgment, is that the claim of the candidates belonging to the Backward Classes for allotment of seat either in the BC category or open category, had been considered in accordance with the directions issued by this Court earlier in the judgment in Writ Appeal No.1547 of 1997 and batch, dated 17-7-1998. From a reading of the counter-affidavit, it appears that the candidates were given an option Form whereunder they were required to indicate whether the candidate wanted to secure a seat as a candidate belonging to open category or from the quota reserved for the Backward Classes. Even at the cost of repetition, the relevant portion of the counter-affidavit is extracted and reads as follows :
"..... However option has to be exercised as to whether the candidate wanted to take seat as OC, or from the quota reserved for BCs, acceptance of such choice will depend upon the individuals MERIT and the rank in the particular category or College. As the reservation of locals, SCs, STs, and BCs, have to be maintained institution wise also, the choice of the candidate has to be considered on the basis of his/ her rank in the particular category in the particular College."
The principle laid down by the Supreme Court in Ritesh R. Sah 's case (supra) clearly militates against such a practice. What was laid down in Ritesh R. Sah's case (supra), that a candidate belonging to the Backward Classes, who is entitled to be considered for a seat in the open category on the basis of the rank obtained by him in the Entrance Examination, cannot be denied the choice of the institution where the candidate wishes to study. Calling upon the student to exercise an option whether the student would like to be considered against the seats earmarked for open category or for the reserved categories would restrict the right of the student, under Articles 14 and 15 of the Constitution of India. It would be contrary to the principle laid down in Ritesh R. Sah's case (supra), to say that the student belonging to Backward Classes though eligible for a seat in the open category, could not be accommodated in the open category having regard to the availability of a seat in that category in the institution of such candidate's choice, but could only be accommodated in the institution of his choice against a.seat earmarked for the Backward Classes, in view of such candidate's relatively lower rank in the overall merit list. Their Lordships of the Supreme Court held as follows in Ritesh R. Sah's case (supra) :
"..... But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate....."
21. However, at para 10 of the counter-affidavit the respondents stated that the procedure adopted by the respondents in seeking the option of the candidates as to the category under which the candidate wished to be considered, was taken only in order to comply with the directions given by a Division Bench of this Court earlier (in the Writ Appeal No.1547 of 1997 and Batch). It must be pointed out that Rule 7 I of the Andhra Pradcsh Professional Educational Institutions Rules, does not I contemplate calling for such an option. It only contemplates an option being given to the student about the institution where he wished to study, but not an option as to whether the candidate would like to be considered as a candidate belonging to an open category or a reserved category for the purpose of satisfying the candidate's choice of institution.
22. The learned Advocate-General sought to rely on the Division Bench judgment of this Court to justify the action taken by the respondents. However, the Division Bench of this Court categorically held at paragraph 7 in this context, as follows :
"7. In case of reserved candidates qualifying for admission on merit in OC category, the admissions shall be on the basis of principles enunciated by the Supreme Court in Ritesh R, Sah v. Dr. Y.L Yamul, (supra)."
23. The learned Advocate-General, however, submitted that the situation obtaining in the State of Andhra Pradesh is little more complex than the situation obtained in the Rilesh R. Sah's case (supra) in view of the provisions of Article 371D of the Constitution of India, where one more consideration of satisfying the regionwise 'University area-wise' reservation also must be kept in mind; he, therefore, submitted that the judgment in Ritesh R. Sah's case (supra) must be made applicable to the State of Andhra Pradesh only insofar as the application of such judgment does not conflict with the constitutional mandate contained in Article 371D of the Constitution of India and the Presidential Order of 1974 (referred to earlier), which was made in pursuance of the power given under Article 37 ID of the Constitution of India. According to the learned Advocate-General the Division Bench of this Court considered all these factors (in Writ Appeal No. 1547 of 1997 and Batch) and issued directions. According to the learned Advocate-General, the admission procedure adopted by the respondents is strictly in compliance with the said directions of the Division Bench of this Court.
24. It can be seen from the Ritesh R. Sah's case (supra) that even in the State of Maharashlra, 30% of the available seats will be filled up from amongst the State Merit List and the remaining 70% will be filled up by the candidates who passed the 12th standard examination from the Schools/Colleges situated in the concerned University area. Therefore, I do not understand as to how the factual situation that is obtained in Rilesh R. Sah's case (supra), is different from the situation obtaining in the State of Andhra Pradesh. Such being the case, assuming for the sake of arguments tiiat there is anything contrary in the Division Bench judgment of this Court to the principle laid down in Ritesh R. Sah's case (supra), it would be contrary to the law declared by the Supreme Court. However, as a matter of fact, I do not find any inconsistency between the law enunciated by the Supreme Court in Ritesh R. Sah's case (supra) and the Division Bench judgment of this Court. I have already extracted the relevant paragraph of the Division Bench judgment in this regard.
25. To justify the procedure adopted by the respondents, the learned Advocate-General placed strong reliance on a judgment of the Supreme Court reported in State of Bihar v. M. Neethi Chandra, . That case pertains to the allotment of students to the various branches in post-graduate medical courses in the State of Bihar. In view of a resolution of the State of Bihar in the matter of allotment of students belonging to the Backward category having regard to their merit and choice of the branches of study, certain anamolies occurred. Their Lordships, at paragraph 5 of the said judgment, explained the anamoly in the following words :
"5. It appears that because of para 6 of the resolution/quoted above, which was applied in allotment of seats in various branches of the post graduate medical courses in the State of Bihar, some candidates in the reserved categories found themselves in a disadvantageous position. The candidates in various reserved classes who could qualify on merit were treated on a par with the general candidates and were allotted branches which would fall to them on merit-cum-choice basis which led to allotment of such courses, which because of their low position/in general merit, were not of their choice while the course/college of choice was available to a candidate qualifying for the reserved seat although they were lower in merit position...."
While dealing with the problem in that context, their Lordships at paragraph 13, held as follows :
"13. At the same time, as pointed out above, all is not well with the Government Circular No.2 as it operates against the very candidate for whom the protective discrimination is devised. The intention of Circular No.2 is to give full benefit of reservation to the candidates of the reserved categories. However, to the extent the meritorious among them are denied the choice of collage and subject which they could secure under the rule of reservation, the circular cannot be sustained....."
In my view, Neethi Chandra's case (supra) referred to above, has no application to the situation on hand for the reason, that on the facts of that case, there was one more additional variation i.e., the choice of the branch of study: in the present case, the branch of study is common for all the applicants and as to how such a situation is to be dealt is squarely governed by the principle laid down in Ritesh R. Sah 's case (supra).
26. Even otherwise, there is no conflict in the basic principle laid down by the Supreme Court both in the above-mentioned cases i.e.s Rilesh R, Sah's case (supra) and Neethi Chandra's case (supra). The principle appears to be the best among the candidates belonging to the reserved categories should have the option to choose either the institution or the branch of study in preference to the less meritorious students belonging to the same category. That principle applies irrespective of the fact whether the best of such candidates are considered for allotment of seats either against the category of seats earmarked for open category or earmarked for the students belonging to the Backward Classes.
27. In view of the above discussion, it must be held that the procedure adopted by the respondents in making allotment of the students belonging to the Backward Classes category must be held to be clearly illegal and contrary to the law declared by the highest Court of the land.
28. The next question is what is the relief that can be granted in this batch of cases? The petitioners have not clearly demonstrated that the Stale by following the procedure it had adopted, denied each one of the petitioners herein a seat in the Medical Colleges, it all depends upon the rank assigned to each one of the petitioners. Some or all the petitioners might get a seat or might not get a seat if only the State had adopted the procedure stipulated in Ritesh R. Sah's case (supra). However, in a complex situation like this, where the information as to the number of seats available in each college and the ranks obtained by each of the students belonging to the various reserved categories, would not be available with each of the petitioners and therefore it becomes impossible to each of the petitioners to establish their right to secure a seat. On the other hand, the State is under an obligation to scrupulously follow the mandate of law. Since it is established that the State failed in discharging its duty in adhering to the mandate of the law, these writ petitions are to be allowed as prayed for, but allowing these writ petitions as prayed for at this stage would result in wholesale unsettlement of the careers of students who have already started undergoing the training. If the entire admissions for the academic year 1998-99 are to be reorganised in accordance with the law declared by the Supreme Court in Ritesh R. Sah's case (supra), it goes without saying that some of the students, who belong to the unreserved category, would perhaps be found to have been admitted though there are not sufficient number of seats for them in the open category. It is impossible at this stage to know who exactly would such unfortunate students be. Such a misery would befall them only by virtue of the misunderstanding of the law by the respondents. Such students are not before this Court, apart from the fact that they have already entered the Colleges and have undergone the training for some period.
29. In the circumstances, 1 am of the opinion that the ends of justice would be met in this case if the State is directed to work out the details and find out how many of the students belonging to the non-reserved categories would have to be displaced if the admissions are to be made strictly in accordance with the principles laid down by the Supreme Court in Ritesh R. Sah's case (supra). After arriving at the total number of such students, consider the cases of each of the petitioners before this Court in this batch of writ petitions as against the number indicated above, provide admission to such of the petitioners against the above-mentioned number of seats in the Medical Colleges after obtaining appropriate permissions from the appropriate bodies for creating such number of additional seats, only for this academic year.
30. In view of the foregoing discussion and in view of the conclusions reached by me, the writ petitions are allowed to the extent indicated above. No costs.