Bombay High Court
Dr. Ravindra Sahadeo Sonawane vs The Dean, Grant Medical College, Bombay ... on 30 March, 1989
Equivalent citations: AIR1990BOM31, 1989(3)BOMCR138, (1989)91BOMLR89, 1989MHLJ456, AIR 1990 BOMBAY 31, (1989) 4 SERVLR 118, (1989) 3 BOM CR 138, 1989 MAH LR 1256, 1989 MAH LJ 456
ORDER Sawant, J.
1. The petitioner, who belongs to a Scheduled Caste Community. has filed the present petition for a writ of mandamus directing respondents land 2, who are the Dean, Grant Medical College, Bombay, and the State of Maharashtra respectively to grant him a seat for the Post-Graduation Course. namely M.D. (Anaesthesia) in the 1st respondent's college and to quash the seat which is allotted to respondent 3. In the petition, two grounds are urged in support of the claim. Firstly, it is contended that Anaesthesia should be considered as an allied subject with General Surgery, including Paediatric Surgery, Neuro Surgery. Plastic Surgery. Orthopaedic Surgery, Oph-thalmology, Dentistry, Radiology. E.N.T.. Burns Surgery, etc. and seats reserved for all the said subjects should be considered together. Secondly, it is submitted that respondents 1 and 2 have converted one reserved seat into an unreserved seat and had thereby deprived the candidates belonging to the reserved categories of one seat. In support of the second ground, it is pointed out that one Shri Abhade who belongs to the Other Backward Class community has been allotted one of the reserved seats although he stands first in the open merit list. If that seat is given to Abhade from out of the reserved seats, it would be available for the non-reserved category and the petitioner would get it.
2. These contentions, it appears, did not find favour with the learned single Judge and, therefore, he dismissed the petition at the admission stage.
3. It is not necessary to deal with the first contention as to whether Anaesthesie can be considered as a subject allied with the relevant subjects, since the petitioner is entitled to succeed on the second ground. It appears that by an advertisement of 22nd Dec. 1988, applications were invited for six seats in the Post-Graduation Course, namely M.D. Anaesthesia. Out of the six seats, two were reserved -- one for the Scheduled Castes and another for V.J.N.T. candidates. In all 28 applications were received -- 21 from the non-reserved categories and 7 from the reserved categories. The 1st respondent selected the following four candidates in order of merit in the open category :
Sr. Name Corrected No. marks
1. Dr. S.G. Gayatri 246
2. Dr. V.G. Tendulkar 243
3. Dr. D.P. Dave 234
4. Dr. S.G. Daftardar 233 (Respondent 3) Likewise he selected two candidates in the reserved category, viz. :
Sr. Name Corrected No. marks 1. Dr. A.G. Shinde(S.C.) 242 2. Dr. S.H. Abhade (O.B.C.) 252
The petitioner having secured 196 corrected marks, did not find place in the list of the selected candidates.
4. It would be apparent from the lists of selected candidates that both Dr. S. G. Abhade and Dr. A. G. Shinde, who belong to the Other Backward Class and Scheduled Caste respectively, had secured more marks than others selected in the non-reserved category. They were however not allotted seats in the open or non-reserved merit list. Instead, they were given reserved seats. Thereby the 1st respondent has deprived the reserved categories of both the seats. It appears that the 1st respondent has done so under a belief that even if candidates belonging to the reserved categories secure more marks than those belonging to the non-reserved categories, they cannot be allotted seats from the open category. They have to be given seats only from the reserved category. This erroneous interpretation is also sought to be supported by an additional contention, namely that if candidates belonging to the reserved categories are given open seats and in addition, the seats in the reserved categories are also filled in by other candidates belonging to that category, the reservation would exceed the maximum percentage fixed. In the present case, the maximum reservation prescribed for the reserved categories is as follows:
1. Scheduled Castes and Nav Buddhas 16
2. Scheduled Tribes including Tribals outside specified areas in Vidarbha 9
3. Denotified Tribes and Nomadic Tribes 15 4. Other Backward Classes 12 _______ 42 _______
5. This interpretation of the Rules of reservation is not only patently unreasonable but also undermines the very purpose for which the reservations have been made mandatory by the Constitution. It appears that underlying this interpretation is a presumplion that candidates belonging to the reserved categories should never compete with those belonging to the non-reserved categories and they should always seek their seats from among those reserved for them. Once reserved always reserved. This line of reasoning forgets that the whole object of reservation policy is to enable the reserved categories to come up to the standard at least of others, if not higher, and in due course to compete with them. But the way the relevant rules are interpreted shows that according to the authorities the candidates belonging to reserved categories can claim either reserved seats or not at all. What is worse, they cannot claim seats more than those reserved for them, even if they are competitively better than others, and are therefore entitled to seats from the open-merit. In other words, the reasoning is that there should always be a ceiling on the number of candidates belonging to the reserved categories who can be allotted seats and that ceiling should be dictated by the seats reserved, even if they can get in more number by competing with others on merit. This is exactly the result of such interpretation. For example, in the present case, if there were four candidates belonging to the reserved categories who on account of their comparative merits were entitled to fill in all the four open merit seats, no more than two of them could have been accommodated for the present course because two seats would complete the maximum seats reserved for the reserved categories. This would mean that whereas there would be no ceiling on the number of allottees from the non-reserved categories, there would be a ceiling on the number of allottees belonging to the reserved categories. This would be exactly contrary to the purpose of reservation and the reservation, instead of working to the benefit of the reserved categories, would work in their detriment. What a travesty of purpose? The founders of the Constitution would certainly turn in their graves. We are not sure whether this fallacious result was envisaged by those who placed the interpretation in question. We are, however, happy that during the discussion in the Court at least, it was realised by the concerned authorities that the interpretation was indefensible.
6. We are not aware how other institutions are interpreting the reservation rules. If the same interpretation is being placed by them, they must realise that they have done enough harm so far and it is high time that they reverse their course. It should be clearly understood by all concerned that while allotting the seats between reserved and non-reserved categories, the marks/grades obtained by all the candidates, whether belonging to the reserved or non-reserved categories should first be listed in order of their merit, and the seat or seats in the open merit category should first be allotted on the basis of such merit list. While considering such allotment on merit in the open merit category, the fact that a candidate belongs to the reserved category should not be taken into consideration. It is only after the seats are so allotted on open merit on competitive basis, that the seats in the reserved category should be allotted. While considering allotment of seats in the reserved category, further, the fact that some candidates have earned seats in the open merit list should not be taken into consideration to calculate the maximum percentage of reservations. It must be remembered that those who come in the merit in open merit list do so not on their quota reserved for them and therefore they are to be excluded while calculating either the minimum or maximum seats reserved. The reserved seats should be allotted to other eligible candidates from the reserved categories.
7. In the light of the view of the rules of reservation we have, taken above, which, according to us, is the only rational way to interpret them the picture that emerges in the present case is- as-follows:
The four seats in the open merit list would go io the following candidates:
Name Corrected marks 1. Dr. S.M. Abhade 252
2. Dr. S.G. Gayatri 246 3. Dr. V.G. Tendulkar 243 4. Dr. A.G. Shinde 242 Out of the two reserved seats, one would go to the petitioner who has 196 corrected marks there being no application of any other candi-
date belonging to the reserved category. One seat, which remains in the-reserved category.
will have to be transferred to the open merit category and that would go to DR. B. P. Dave, who having, secured 234 corrected marks stands below Dr. Shinde in the open merit list.
The; seats, therefore, should be allotted as above.
In the result, the petition succeeds. Respondents 1 and 2 are directed to allot the reserved seat to the petitioner-appellant and the Rule is made absolute accordingly with no order, as to costs.
8. Mr. Desai appearing for respondent 3 pleaded that a recommendation be made to respondents 1 and 2 to allot an additional seat to respondent 3, We are not inclined to make am such recommendation since there is no justification for creating an additional seat for respondent 3. No seat has so far been allotted to any candidate with the result that respondent 3 has not as yet commenced his course which is the only reason which sometimes weighs with the Court for making such recommendation. Secondly, we are informed that respondent 3 has already secured a seat in Diploma in Radiology for which he is studying. Even if he has a right to switch over to the degree course, in thefacts and circumstances of the case, there is no warrant for the recommendation prayed for.
9. The present course for the post-graduate degree in Anaesthesia was to commence from Feb. 1, 1989. It was because of the injunction granted by this Court that all the said seats were kept vacant. The result has been that today we are almost at the end of March and the students would be deprived of the present term. It is, therefore, necessaryb to give a direction to the University to register the students concerned for the said course retrospectively from Feb. 1, 1989, which we hereby do.
10. Order accordingly.