Bombay High Court
Dr. Shilpa Suresh Shinde And Ors. vs State Of Maharashtra And Ors. on 23 March, 2000
Equivalent citations: (2000)102BOMLR80
Bench: B.N. Srikrishna, S. Radhakrishnan
JUDGMENT
1. Rule returnable forthwith. Respondent Nos. 1, 2 and 3 waive service through Counsel. Interveners waive service through Mr. Vashi. By consent, rule called out for immediate hearing and heard.
2. The short point which arises for determination in this writ petition is : "If for some fortuitous reason the quota of 25% of the seats which ought to be reserved for the candidates passing the All India Entrance Examination is unfilled, is the State entitled to reserve any of those seats by applying its reservation policy thereto?"
3. The Counsel are agreed that, as a result of the judgment of the Supreme Court in the case of Pradeep Jain v. Union of India AIR 1984 SC 1420 : 1984 (3) S.C.R. 942 : 1984 (3) SCC 654 : 1984 (2) L.L.J. 481 the mode of selection of candidates for the Post Graduate Medical Courses, is as under:-
A. 25% of the total number of available seats are carved out into a separate category and have to be filled up only by admitting students who have passed the All India Entrance Examination (All India Quota).
B. Of the balance 75% of the seats remaining, 15% have to be reserved for in-service candidates (In-service quota), C. Certain percentage, not exceeding 50% of the balance, have to be reserved for different categories of students like Scheduled Castes, Scheduled Tribes, Nomadic Tribes and other backward classes.
4. Upto and including the academic year 1999-2000, the State of Maharashtra did not insist that the students admitted in the All India quota had to undergo one year's rural service as a pre-requisite for admission to Post Graduate Students in Medicine. Consequently, during the year 1999-2000 the seats were filled up from the All India quota only on the basis of the marks obtained by the candidates in the All India Entrance Examination. We are informed by the learned Counsel appearing for the State of Maharashtra that though in the 1996 Rules there was a provision that all students, irrespective of whether they applied for State Quota or All India Quota, had to fulfil the pre-requisite of one year's rural service, for some reason this was not implemented upto and including the year 1999-2000, in so far as All India Quota was concerned. From the year 2000 onwards the State Government has implemented this Rule vis-a-vis the All India Quota. We are also informed that the implementation of this Rule vis-a-vis the All India Quota was challenged before this Court and the challenge failed and though the matter was carried to the Supreme Court, the Supreme Court was not inclined to interfere. Consequently, the State of Maharashtra implemented the Rule with regard to the pre-requisite of one year's rural service to all the candidates applying both in the State as well as the All India Quota. For the current year 2000-2001, however, an anomalous position has developed in view of the State's insistence that all the candidates applying for Post Graduate Medical Course, must have completed one year's rural service. The State finds itself in a situation where not a single candidate who qualifies under this rule was available for filling up the All India Quota. Hence, about 140 and odd seats would go unfilled. Obviously, this would mean wastage of State's resources and detriment to national interest. The State therefore has decided that these seats would also to be filled in by local candidates by applying to them the same yardstick of merits as applied to other candidates selected in the State Quota.
5. The Petitioners contend that, the 140 and odd seats, which have fallen vacant for the current year, are not part of the State quota and, therefore, the State's reservation policy cannot be made applicable to the said seats and that those seats must be filled only in accordance with the merits by not applying the reservation policy.
6. We have been taken through the judgment of the Supreme Court in Dr. Jeevak Almast v. Union of India and Ors. AIR 1988 SC 1812 : 1988 Supp. (2) S.C.R. 385 : 1988 (4) SCC 27 : 1988 (3) J.T. 340 : 1988 (2) Scale 215. Mr. Thorat, the learned Counsel for the Petitioners relies upon this judgment and contends that this judgment has taken the view that such of the seats from the All India quota which are diverted to State quota, must necessarily be filled up purely on merits without application of the reservation policy. Reading the judgment, however, we do not find any such principle clearly enunciated in the judgment. Though, as a matter of fact, the Supreme Court did direct in the case of Dr. Jeevak (supra) that the seats which had been diverted from All India quota to the State Quota had to be filled by applying the same criteria of merit as applicable to the candidates admitted in the State quota. It is true that there is no express enunciation in this judgment of the principle canvassed by Mr. Thorat. One thing, however, strikes us as significant. It is inconceivable that the Union of India or the State of U.P. who were party Respondents before the Supreme Court, would have completely lost sight of the reservation policy. Atleast it is significant to notice that neither the Slate Government nor the Union of India had laid claims to this diverted quota as being subject to the reservation policy.
7. Mr. Thorat drew our attention to the judgment of this Court in Jigna Priyavadan Desai v. State of Maharashtra and Ors. W.P. No. 370 of 1999, decided on 23rd February, 1999 (by Y.K. Sabharwal, C.J. and A.P. Shah, J.). This judgment, in terms, answers the issue that is raised by Mr. Thorat. This judgment follows the earlier judgment in Dr. Dhondiba Dnyanoba Munde v. The State of Maharashtra and Ors. W.P. No. 3909 of 1989 and W.P. 3810 of 1989 dated 20.8.1990. The judgment of the Division Bench in Jigna's case takes the view that the reservation policy cannot apply to the All India quota of seats and follows the earlier judgment in Dr. Dhondiba Dnyanoba Munde's case (supra). Thus, as far as this Court is concerned, the issue is no longer res tntegra as two Division Benches of this Court have taken the view that the All India quota cannot be subjected to reservation.
8. Mr. Aney, learned Counsel for the State of Maharashtra, urged two contentions to oppose the writ petition. First, he contended that as far as year 2000-2001 is concerned, all the seats available under the All India quota have been filled up and that there are no seats available in the All India quota at all. It is not in doubt that the admissions which were to commence in the academic year 2000-2001 were finalised in the last year itself since the students have to undergo one year's rural service before joining the Post Graduate Medical Course. In the last year, because of the action of the State of Maharashtra in not enforcing this requirement vis-a-vis the students coming in for admission in All India quota, the All India quota was directly filled up and the students were directly sent for the academic session. If the same past practice had been followed in the year 2000 2001, the students coming in for admission for All India quota would have been directly admitted to the academic session 2000-2001. However, on account of unilateral action of the State of Maharashtra in insisting that the students who applied for admission in the All India quota would be permitted to do the Post Graduate academic session only after completion of one year's rural service, none of the students could be admitted in the academic session of 2000-2001 against the All India quota.
9. It is not in dispute that these seats in each of the quotas cannot be carried forward to the subsequent academic year and, if not filled up in the same academic year, they lapse. Allowing the seats to lapse would be waste of national resources and defeat the interest of Post Graduation Education. Consequently, all the 140 and odd seats of All India quota, which could not be filled up in the current session 2000-2001, are required to be filled up. Because of the insistence of the State of Maharashtra that even the students who are to be admitted in the All India quota must have one year's rural service, there is no student available in the current academic session 2000-2001 who would fulfil this criteria. In the circumstances, the most reasonable and just thing to do would be to permit the local candidates to be admitted against these 140 and odd vacant seats, which have fortuitously become vacant from the All India quota in the current session. This situation is virtually admitted in the affidavit In reply filed by the State of Maharashtra. The State Government, however, claims that, in this year, 140 and odd seats which have become available would become part of the State quota and that the admission would be determined by the State in accordance with its reservation policy. It is not possible to accept the contention of the learned Covmsel for the State of Maharashtra that what was originally intended to be the All India quota would acquire the character of State quota, because the availability of these additional seats. In our view, the only just and reasonable manner in which this fortuitous block of seats can filled is by going strictly in accordance with merits. Mr. Aney then submitted that if merit was the criterion, then the same yardstick as applied to the students admitted in the State quota would be made applicable to them also. We do not think that there can be objection to judging the merit of such candidates by marks obtained at the final M.B.B.S. Examination as done in the case of the other local candidates. The only distinction, however, which would remain is that these 140 and odd seats would have to be filled in purely on merits without applying the reservation policy. The quota of 140 and odd seats which have become available originally belonged to All India quota and they do not change their character merely because of the unforeseen circumstance which has arisen in the current academic year.
10. The issue can also be looked at from another angle. Even if the rule as to rural service were made applicable, supposing in a year all the students appearing for All India Examination failed the examination, in such a case, not a single student would be available to be admitted as against the All India quota. Obviously, the local candidates, judged by their performance at the M.B.B.S. Examination, would have to be admitted against the All India quota also. By reason of law already laid down by the earlier two Division Benches, while doing so, the State cannot apply the reservation policy against such seats, since those seats are seats which arise from All India quota. In our judgment, the same reasoning and logic should apply to the additional 140 and odd seats which have become fortuitously available in the current year. These 140 and odd fortuitously vacant seats are originally from the All India quota and, therefore, their true character continues to be retained, even if they are filled up by the local candidates. Hence, they ought to be filled up only on merits without application of the reservation policy.
11. The consequence of our holding as above, would be that for the current year 2000-2001, in respect of these 140 and odd seats which have become fortuitously available, only local candidates from the State of Maharashtra would be admitted in accordance with the 1991 Admission Rules, without application of the reservation policy.
12. Mr. Vashi, learned Counsel for the Interveners, contended that the 1991 Admission Rules would have to be applied either fully or not at all, and that there cannot be partial application thereof. We are not impressed by this contention. This contention would have merit only under normal circumstances which existed till last year. In the current year the abnormal situation has arisen because of the action of the State of Maharashtra in suddenly implementing the pre-requisite of rural service even to the All India quota candidates. Secondly, the contention of Mr. Vashi also does not appear to be correct on a reading of Rule 3 of 1991 Admission Rules. That rule deals with the reservation and specifically excludes the All India quota from reservation.
13. We have already held that these 140 and odd seats which have become fortuitously available in the academic year 2000-2001, shall retain their character of All India quota. Hence, the contention of Mr. Vashi must fail. Mr. Vashi contends that the candidates represented by him have already been provisionally selected and they cannot be ousted from the selection list. We specifically queried Mr. Aney, learned Counsel for the State of Maharashtra and the Medical Colleges on this and Mr. Aney informed us that though they were taken up on the basis of merits plus reservation policy, none of the intervcners has yet been admitted in the strict sense. We called upon Mr. Vashi to produce before us some document on the basis of which we could be satisfied that any of the interveners had been admitted in the strict sense. However, Mr. Vashi is unable to do so. We are, therefore, not in a position to accept the contention of Mr. Vashi.
14. In the circumstances, we allow the writ petition and make the rule absolute in terms of prayer Clauses (a), (b) and (c).
15. The learned A.G.P. Mr. Patki states that, in view of what has been held by us, the admission process would have to be re-done and that the students would have to be given an opportunity of changing their preferences, since their order in the merit list would change. Consequently, the preferential rights to pursue the particular Post Graduate subject would vary. Mr. Patki states that this entire process would be completed till 10th April, 2000. This may be done.
16. Mr. Vashi applies for stay of this order. In our view, it is high time that the state of confusion is resolved and the students pursue their academic course instead of pounding the corridors of the Court. Application for stay is refused.
17. Parties to act on an ordinary copy of this order duly authenticated by the Associate.