Madhya Pradesh High Court
Mayank Jain vs State Of Madhya Pradesh And Ors. on 10 September, 2003
Equivalent citations: 2003(4)MPHT275
Bench: Chief Justice, Dipak Misra
ORDER
1. In this writ petition preferred under Article 226 ot" the Constitution of India the petitioner has sought the relief to declare the Rule 9.3 of Madhya Pradesh Medical and Dental Graduate Entrance Examination Rules, 2003 (for brevity 'the 2003 Rules') as ultra vires on the bedrock that it is defiant of the Constitutional provisions and also on the foundation that there is inherent and irreconciliable inconsistency inter se in the Rules entailing in devastating fallibility.
2. The facts which are essential to be Stated are that the Professional Examination Board (hereinafter referred to as 'the Board'), the respondent No. 2 herein, conducted Pre-Medical Examination, 2003 on 17-5-2003 and 18-5-2003 in which the petitioner appeared. He was given the Roll No. 849069. As pleaded, he has been awarded 988.76 marks out of 1200 marks and his name features at Serial No. 292 in the merit list of general category candidates. The Board declared the results, merit list as well as the waiting list for all the categories in the daily newspaper. The relevant paper publication dated 6-6-2003 has been brought on record as Annexure P-2.
3. According to the writ petitioner the State of Madhya Pradesh, the respondent No. 1 herein, has framed the 2003 Rules. The examination was conducted in accordance with the said Rules. The Board had called 300 candidates from unreserved category for counselling on 12-7-2003 to 14-7-2003 and the list of candidates who were called for counselling consisted of 56 Other Backward Class (OBC) category and 4 Scheduled Caste category. The names of said 60 candidates have also been shown in the merit list of unreserved category candidates. Out of these candidates, as averred, 28 candidates belonging to OBC category and 3 candidates of SC category abandoned their choice to be in the unreserved category and chose to come in the compartment of reserved category. Because of this situation the Board did not call the other candidates from the merit list whose names appeared at Serial Nos. 272 to 300 and this recourse was taken to by the Board by placing reliance on Rule 9.3 of the 2003 rules. It is putforth in the petition that by introduction of Rule 9.3 the percentage of reserved category has increased to 56.94% whereas the seats meant for general category at present has fallen to 42%. It is contended in the petition that if Rule 9.3 is allowed to remain the reserved quota would increase to the extent of 73.41 per cent and the general category would come down to slightly more than 26%. It is setforth that as per Rule 5.0, 20% seats are reserved for Scheduled Tribes, 16% seats meant for Scheduled Caste and 14% seats are kept to be filled up by the OBC candidates. It has been asseverated in the petition that as per Rule 9.3 of the Rules if the name of any candidate of reserved category is included in the merit list of the unreserved category then such candidate would be entitled to participate in both the categories, namely, reserved category as well as general category and if he is entitled for allotment of a seat from any of the category as per his choice and if he chooses to be included in the reserved category, then out of remaining seats of unreserved category the same number of candidates would get the seats equivalent to reserved category. By applying the aforesaid rule it is asserted that the reservation has been increased as a consequence of which the general category candidates have been immensely affected. In this factual backdrop a prayer has been made to declare the rule as unconstitutional.
4. A return has been filed by the respondent Nos. 1 and 3 contending, inter alia, that the Rule in question is in consonance with the decision of the Apex Court rendered in the case of Indira Sawhney etc. v. Union of India and Ors., AIR 1993 SC 477, to the effect that if a reserved category candidate gets selected on his own merit and gets more marks than the selected candidates of the general category he would be adjusted in the list of general category candidate and not against the seat reserved for reserved category candidate and in view of that the Rule which is the subject-matter of assail does withstand scrutiny and is not liable to be declared as ultra vires.
5. Mr. Aditya Sanghi, learned Counsel for the petitioner has submitted that Rule 9.3 has indirectly accentuated the percentage of reservation and created a class disharmony which is impermissible if tested on the bedrock of the constitutional provisions and the philosophy of reservation. The learned Counsel has submitted that the reservation in this manner is not allowable if the ratio of the decision in the case of Indira Sawhney (supra) is appreciated and understood in proper perspective. Learned Counsel has further propounded that when the Rule 5 of the 2003 Rules prescribes specific quota meant for reserved category, the prescription in another rule can not annul or destroy the fabric of that rule which is in consonance with the constitutional mandate, and such an action would tantamount to playing foul by executive fiat in exercise of delegated legislation annihilating the basic essence of the Constitution.
6. Mr. V.K. Tankha, learned Advocate General has submitted that if the peculiar circumstances prevailing in the State of Madhya Pradesh are taken into consideration the present rule would withstand scrutiny of the constitutional frame work as well as conception of reservation. It is his further submission that Rule 9.3 is conceivable as in certain cases horizontal reservation is acceptable and in any case the claim putforth by the petitioner is untenable inasmuch as the reserved candidates can be selected in the general category.
7. To appreciate the submissions raised at the Bar it is appropriate and apposite to refer to Rule 5.0 of the 2003 Rules. The English translation of the same, which has been provided to us, reads as under :--
"Rule 5. 20% seats to ST, 16% seats to SC and 14% seats reserved for OBC category (excluding the creamy layer), the rest of the seats have been reserved for the candidates of General category."
The English translation of Rule 9.3 envisages as follows :--
"Rule 9.3. If the name of the candidate from SC/ST/OBC appears in the merit/waiting list of reserved category list as also in the merit/waiting list of General Category list, then he/she has the option to participate in both the lists. Such candidate will have the option to select the seat from any one of the lists mentioned above.
In such circumstances, if the candidate opts for the reserved category list as a reserved candidate, then in such a case the students of reserved category will be filled in the category of general category list vacated by the reserved category candidate in the same proportion."
8. We have reproduced both the Rules so that the controversy can be properly appreciated with contemplated immediacy. On a perusal of Rule 5 it rings as a bell that the reservation meant for all the categories is 50%. The said Rule lays a postulate that the rest of the seats have been reserved for the candidates of general category. This rule is absolutely plain, clear and unambiguous.
9. In this context we have to scan the anatomy of the Rule 9.3. The Rules, as it appears to us, has its own peculiarity. As far as the first part of this rule is concerned, it stipulates that a candidate belonging to the reserved category has the option to participate in the general category as well as in the reserved category. It is well settled in law that if the candidate belonging to reserved category qualifies and gets selected in the open competition on his own merit his case would not be counted for the purpose of quota. This view of ours gets fortified by what has been stated in the case of Indira Sawhney (supra) :--
"In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Caste get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."
10. The difficulty arises because the Rule confers the privilege on the candidate to be entitled to share either of the categories, meaning thereby, even if he is qualified and selected in respect of the general category, he has the choice to come to the reserved category. This runs counter to the decision rendered in the case of Indira Sawhney (supra). The second part of the Rule creates further impediment to preserve the harmony. On a first flush it may look to be quite innocuous but it has innate potentiality to disturb the basic concept of reservation and accelerate the chaos in the said field. To elaborate, if a candidate belonging to the reserved category opts for allotment of seat reserved for his category in that event the seat meant for the reserved category of the candidate shall be made available out of the remaining seats of unreserved categories. In our considered opinion, if this recourse is taken to there will be more seats available for the reserved category. The Apex Court in the case of Indira Sawhney (supra) has categorically held as under :--
"It needs no emphasis to say that the principle aim of Articles 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 16(4) -conceived in the interest of certain section of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (sec his speech in Constituent Assembly, set out in Para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus, clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from the concept.
From the above discussion, the irresistible conclusion that follows is that the reservation contemplated in Clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain extra-ordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."
11. In this context we may refer with profit to the Constitution Bench decision rendered in the case of Dr. Preeti Shrivastava v. State of M.P. and Ors., AIR 1999 SC 2894, wherein the Apex Court held as under :--
"...... While the object of Article 15(4) is to advance equality principle by providing for protective discrimination in favour of the weaker sections so that they may become stronger and be able to compete equality with others more fortunate, one can not also ignore the wider interests of society while devising such special provisions. Undoubtedly, protective discrimination in favour of backward, including Scheduled Castes and Scheduled Tribes is as much in the interest of society as the protected groups. At the same time, there may be other national interests, such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests. Moreover, study and training at the level of specialities and super-specialities in medicine involve discharging the duties attached to certain specified medical posts in the hospitals attached to the medical institutions giving education in specialities and super-specialities......."
12. We are conscious that the aforesaid decision was rendered in the context of reservation for admission to the Post Graduate Course in various professional faculties but we have referred to the aforesaid paragraph to indicate what is the view of the Apex Court in relation to weaker sections and what their Lordships have stated therein. We may repeat at the cost of repetition that the cause putforth by the State for advancement of the weaker section can not distort the dictum of the Apex Court. It was contended before us that in certain exceptional cases extra reservation is permissible. But, in our considered opinion, the present one does not fit into the said prism. When the students are appearing in the examination harbouring hope that when they would qualify they would be selected their hopes can not be marred or smothered by ushering in a rule of this type. The said Rule does not subserve the constitutional philosophy and as we have noted earlier it runs contrary to the principles laid down by the Apex Court. If we allow ourselves to say so, an innovative attempt has been made to frame a rule to enhance the conception of reservation which the law prescribes. By no stretch of rationalisation or ratiocination it can be conceived that this is the field where this innovative approach is warranted. On the contrary, it is absolutely unthinkable.
13. Quite apart from the above, Rule 5.0 clearly stipulates that there would be 50% reservation for other categories and 50% seats shall fall to the category of general category. Rule 9.3, as has been understood by us, is totally inconsistent with Rule 5.0. The definiteness and certitude of Rule 5.0 can not be throttled by incorporating Rule 9.3. It is totally inconsistent and bring in an incurable dent in the essential feature of Rule 5.0. In our considered opinion Rule 5.0 is in consonance with the judgment of the Apex Court. As Rule 9.3 runs counter to the same, it can not be allowed to prevail. They do not harmoniously co-exist and the disharmony ensues unacceptability.
14. In view of our preceding analysis, we irresistibly come to the conclusion that Rule 9.3 is constitutionally invalid and the same can not be allowed to have any play. We declare it to be ultra vires. The counselling which is to take place shall be strictly in accordance with the Rule 5.0.
15. Before we part with the case we feel it appropriate to express our unreserved and uninhabited appreciation for the learned Advocate General as he immediately agreed to argue the matter and rendered us ample assistance without which it would not have been possible to dispose of the matter as we have been able to do.
10. Resultantly, the writ petition is allowed without any order as to costs.