Jharkhand High Court
Ravi Shekhar Singh & Anr vs State Of Jharkhand & Ors on 28 June, 2011
Equivalent citations: 2012 (1) AIR JHAR R 110, 2011 (107) AIC (SOC) 14 (JHA) (2012) 1 JCR 170 (JHA), (2012) 1 JCR 170 (JHA)
Author: D.N. Patel
Bench: D.N.Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3292 of 2011
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1. Ravi Shekhar Singh
2. Jyotsna Kumari ... Petitioners
Versus
The State of Jharkhand & ors. ... Respondents
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
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For the petitioner : Mr. Ajit Kumar, Advocate
For the State : A.G.
For Respondent No.7 to 10 : Mr. P.K. Prasad, Sr. Advocate
& Mr. J.J. Sanga, Advocate
Order No. 03: Dated 28th June, 2011
Per D.N. Patel, J.
1. This writ petition has been preferred with the following prayer:
(i) For quashing of the letter no.226(7A) dated 10.6.2011 issued under the signature of the Respondent No.2, whereby and whereunder, the said respondent has without any jurisdiction and authority sought to alter the prevailing policy and resolution of the Government dated 17.02.2009 for admission in various subjects/faculty of Post Graduate Medical Education although the said resolution dated 17.02.2009 as issued by the Government has also been duly relied upon and stated to be in conformity to the norms of the reservation policy of the State of Jharkhand filed on 08.07.2009 in a related matter of W.P.(C) No. 1992 of 2009;
(ii) For issuance of other suitable order/ directions commanding upon the respondent no.2 showing them cause as to how a deviation can be permitted in the matter of reservation of Post Graduate and specialized PG Diploma seats of the Medical Colleges situated in the State of Jharkhand without adhering to the policy of granting reservations seat-wise / subject-wise and institution-wise particularly when in view of the decision of the Supreme Court of India as also been followed up till now in the State of Jharkhand, reservation cannot be applied through roster or otherwise in the single post cadre; and 2.
(iii) For issuance of appropriate and suitable orders and command upon the Respondents to device and strike a balance between the interest of General and reserved categories candidates while filling the seats for admission in various subjects / faculty of Post Graduate Medical Education so that the merit cum option available to the General Category candidates is not ignored and unreasonably encroached.
2. Learned counsel for the petitioner submitted that initially the policy was floated by the respondent-State for the year 2002, which is reflected at Annexure - 3 to the memo of the writ petition. Thereafter, the policy for reservation was floated on 17th February, 2009, which is at Annexure - 4 to memo of the writ petition, in which as per Schedule - I and II, reservation points have been given. It is further submitted by the learned counsel for the petitioner that thereafter the Respondent-State has made total deviation from the earlier policies and has now issued an executive instruction dated 10.6.2009, which is at Annexure - 11 to the memo of petition, whereby, in certain subjects in Post Graduate Medical seats, 100% reservation has been given, wherein, the vacancy is only for one post. For example, in Bio-chemistry, MD (FMT), MD (Dermatology), MS (ENT), MCH (Neurosurgery), there is only one seat and if the executive instruction, issued by the respondent-State dated 10th June 2011 (Annexure 11), which speaks about a new reservation policy, is allowed to continue, then the aforesaid faculties may not be available to the candidates of general category. It is further submitted by the learned counsel for the petitioner that if the reservation is allowed in the aforesaid subjects, which is available in the Post Graduate Study in Medical Faculty, it will tantamount to 100% reservation, which is not permissible in the eyes of law and, hence, the executive instruction dated 10th June, 2011 (Annexure 11 to the memo of the petition), issued by the respondent- State, deserves to be quashed and set-aside.
3. Learned counsel for the petitioner has relied upon several decisions, including (1998)4 SCC 1 (Post Graduate Institute of Medical Education & Research v. Faculty Association & ors.), 2003(3) JCR 188 (Jhr.) (Rajneesh Mishra & ors. v. State of Jharkhand & ors.) and AIR 1990 SC 2023 (Dr. Suresh Chandra Verma & ors. v. The Chancellor, Nagpur University & ors.), and has pointed out that it has 3. been decided by a Special Bench of this Court that reservation policy in the appointment matter will also be made applicable to the admission matters in Post Graduate Study in the Medical Faculty and in view of the aforesaid decision, the reservation must have been made subject-wise, whereas looking to Annexure 11, it appears that the reservation has not been made by the State subject-wise and, therefore also, the order at Annexure - 11 to the memo of petition, needs to be set-aside.
4. Learned counsel for respondents nos. 4, 5, and 6 has also adopted the arguments, canvassed by the learned counsel for the petitioner and has further submitted that an executive instruction at Annexure -11 to the memo of petition vide order dated 10th June, 2011 cannot be implemented and some resolution has been taken in their Board's meeting dated 23rd June, 2011.
5. Learned Advocate General has submitted that, in fact, nothing new has been decided by the Government rather the Government has clarified what has already been decided vide Annexure 4 to the memo of petition dated 17th February, 2009. It is further submitted that the policy decision regarding the reservation dated 17th February, 2009 is already in existence and there is no challenge to this policy decision, which is at Annexure 4 to the memo of petition. The executive instructions at Annexure 11 to the memo of petition dated 10th June, 2011 is nothing but reiteration of the said reservation policy.
6. It is submitted by the learned Advocated General of the State that the roster points at serial no. 1, 3, 5, 7, 9, 11, 13,15,17,19, 21, 23, 25, 27, 29, 31, 33, 35 and 37 are meant for unreserved or for general candidates, for which there is a separate merit lists. Thus, out of total 56 seats available in Post Graduate Study in Medical faculty, 28 seats are unreserved whereas 14 seats are reserved at the roster point nos. 2, 8, 10, 14, 18, 22, 26, 30, 34, 38, 42, 44, 50 & 52 for the candidates, belonging to Schedule Tribe category. Likewise, out of total 46 seats in a Post Graduate Study in Medical Faculty, 6 seats have been reserved for the candidates belonging to Scheduled Caste category, whose roster points are 6, 16, 24, 36, 46 and 56. Likewise, out of 56 seats, 5 seats are reserved for Most Backward Class (OBC-I) and their roster points are 4, 20, 32, 48, 54 and 3 seats have been reserved for other Backward Class (OBC-II) and their roster points are 12, 28 and 40. Similarly, clarification 4. has also been made with respect to Diploma course, in the executive instruction dated 10th June, 2011 at Annexure -11 to the memo of the writ petition, which is under challenge in this writ petition.
7. It is submitted by the learned Advocate General of the State that looking to Article 15(5) of the Constitution of India, reservation can be fixed by the Government as a policy decision for giving admission in Post Graduation Study in Medical Faculty. Learned Advocate General further submitted that there is vast difference between Article 16(4) and 15(5) of the Constitution of India as has relied upon the decisions, rendered by the Hon'ble Supreme Court in case of Ashoka Kumar Thakur v. Union of India & ors., as reported in (2008)6 SCC 1, and in the case of Gulshan Prakash (Dr.) & ors. v. State of Haryana & ors., as reported in (2010)1 SCC 477 and has submitted that as per the letter, issued by the respondent-State dated 10th June, 2011, there are five different merit lists, as under:
a) General candidates
b) Scheduled Tribes candidates
c) Scheduled Caste candidates
d) OBC-1 candidates which is most backward class.
e) OBC - II candidates which is other backward class.
Out of the aforesaid five merit lists, as per roster point, first candidate will be of General category, on the basis of his merit, and he will be given option of 18 faculties in a Post Graduation, out of which he can choose one. These18 categories are as under:
1. MD (Anatomy)
2. MD (Biochemistry)
3. MD (Physiology)
4. MD (FMT)
5. MD (Microbiology)
6. MD (Pathology)
7. MD (Pharmacology)
8. MD (Anesthesiology)
9. MD (Medicine)
10.MD (Paediatrics)
11. MD (Dermatology)
12. MD (Radiology)
13. MD (Gynecology)
14. MS (ENT)
15. MS (Surgery)
16. MS (Eye)
17. MS (Orthopedics)
18. MCH (Neurosurgery) Thus, the first candidates will choose any one of the aforesaid 5. faculties and then the candidate of second category will be called from the merit list, prepared separately for Scheduled Tribe candidates, who will be given option for the left out 17 faculties, who can also choose any one subject, as stated hereinabove. Likewise, the third candidate will be called again from the merit list of General Category, who will choose any one subject out of the left faculties and the fourth candidate will be called from the merit list of Most Backward Class i.e. OBC-I, who will choose any one subject out of the left out faculties and likewise the whole roster points will be operated upon and, therefore, it can not be said that there is 100 percent reservation in a particular subject, as has been enumerated hereinabove. It has also been submitted by the learned Advocate General of the State that for final counseling and admission in the Post Graduate course in the Medical faculty, the last date prescribed by the Hon'ble Supreme Court in a decision rendered in the case of Mridul Dhar (Minor) & anr. v. Union of India, as reported in (2005)2 SCC 65, is 30th June 2011. Therefore, the seats will go in waste and the vacancies will remain as they are, if this writ petition is adjourned beyond the aforesaid date.
8. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition, mainly for the following reasons:
(i) That the present petition has been preferred by the petitioners to get admission in Medical Faculty in a Post Graduate course without there being any reservation and they are challenging mainly the executive instruction dated 10th June, 2011, issued by the respondents, as contained in Annexure -11 to the memo of petition. In this executive instruction, roster points have been fixed for the candidates, belonging to general category, Scheduled Caste category, Scheduled Tribes category and the categories of Most Backward Class i.e. O.B.C.-I and Backward Class i.e. O.B.C. - 2.
(ii) Looking to the policy decision, already taken on 17th February 2009 at Annexure 4 to the memo of petition, it appears that the points of roster have already been fixed as per Schedule I and so far as Schedule - II is concerned, the same will be made operative when the total number of vacancies is less than 50.
(iii) It appears from the policy decision taken by the State that certain roster points have already been fixed for serial nos. 1 to 50 and 6. thereafter it is to be repeated; for example a student at serial no. 51 in merit will be treated as per roster point no. 1; serial no. 52 will be treated as pr roster point no.2; serial no. 53 will be treated as per roster point no.3 and so on.
(iv) It further appears from the facts of the case that there is no challenge to Annexure 4 of the memo of petition. So far as Annexure 11 to the memo of petition is concerned, there is no change with respect to the roster points from the already taken policy decision dated 17th February, 2009 (Annexure 4). For the candidates, belonging to general category, a separate merit lists is to be prepared and likewise, for other candidates, belonging to the categories of Scheduled Caste, Scheduled Tribes, Most Backward Class i.e. O.B.C. - I and Backward Class i.e. is O.B.C. - II, separate merit lists are to be prepared on the basis of marks obtained in Post Graduate Medical Admission Test, 2011 and as per the roster points, candidates will be called; for example for roster point no.1 from a general category candidates, a candidate will be chosen, having highest mark and he will be given option to choose any one out of the total eighteen faculties, as stated herein above. He may choose Neurosurgery or MS (ENT) or MD (Radiology) or MD (Dermatology) or MD (FMT). Thereafter, for roster point no.2, a candidate, who is highest in the merit list, prepared for the candidates, belonging to Scheduled Tribe category, will be called and he will be given option to chose any one out of the total left out seats.
(v) Looking to the Annexure 11 to the memo of petition, the executive instruction issued by the respondents dated 10th June, 2011, it appears that in no way it can labelled as unreasonable or violative of Article 15 to be read with Article 16 of the Constitution of India. The percentage of reservation is not exceeding 50%, which has been admitted by the learned counsel appearing for both the sides. The total reservation is 50%.
(vi) Learned counsel for the petitioners has ventilated lot of grievances about the subjects for which there is only one seat viz. Neurosurgery, ENT (Radiology) and FMT as also for Dermatology and submitted that for these seats, there cannot be any reservation, otherwise, it will tantamount to 100% reservation for those seats where there is only seat.
7.This apprehension on the part of the petitioners is uncalled for and unwarranted. As stated hereinabove the roster points are already fixed, fixing the reservation. Different are the merit lists for the candidates, belonging to General category, Scheduled Caste, Scheduled Tribes, O.B.C.-I and O.B.C.-II. One after one candidate will be called as per the roster points and the candidate will have the option to choose any of the 18 subjects or the left out subjects. Thus, it can not be said that there is a 100 % reservation for the aforesaid seats.
(vii) Moreover, it has also been contended by the learned counsel for the petitioners that whatever reservation policy is applicable for filling up the post i.e. a cadre post, should also be made applicable for filling up the Post Graduation Seats in the medical faculty for study purposes also.
This contention of the learned counsel for the petitioners is not accepted by this Court mainly for the reasons that Article 15(5) of the Constitution of India, which has been amended in the year 2006, permits the State to take steps for making a special provision for the advancement of the socially and educationally backward classes or for Scheduled Caste or Scheduled Tribes, so far it relates to admission at educational institutions. Thus, it is left at the wisdom of the State to float a reservation policy for upliftment of socially and educationally backward classes or for Scheduled Caste and Scheduled Tribes in the State.
(viii) Policy of reservation provides for granting reservation to different reserved categories, including the members of Schedule Tribe on the available seats and therefore, each year reservation has to be provided on the basis of the seats available.
(ix) Even the Constitution Bench of the Hon'ble Supreme Court in a decision, rendered in the case of Indra Sawhney v. Union of India & ors., as reported in A.I.R. 1993 SC 477, at paragraph no.96 has held that reservation has to be calculated by taking each year as a unit, which is being quoted herein below:
"96. The next aspect of this question is whether a year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji (AIR 1963 SC 649) does not deal with this aspect but Devadasan (AIR 1964 SC 179) (majority opinion) does. Mudholkar, J. speaking for the majority says:
"We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens 8. relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities."
On the other hand is the approach adopted by Ray, C.J. In Thomas (AIR 1976 SC 490). While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, C.J. Would not be consistent with Article 16. True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go i.e., in a year or two. The position can be better explained by taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e., 270 by other backwards, 150 by scheduled castes and 80 by scheduled tribes. As a given point of time, let us say, the number of members of O.B.Cs. In the unit/service/category is only 50, a short fall of
220. Similarly the number of members of scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and
75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500 i.e., till the quota meant for each of them is filled up. This may taken quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.
(d) Was Devadasan correctly decided?"
(x) Reservation in a Post Graduate Study in the Medical Faculty is also permissible, in view of the decision rendered by the Hon'ble Supreme Court in the case of Ashoka Kumar Thakur v. Union of India & ors., as reported in (2008)6 SCC 1, wherein, at paragraphs 91 and 92 at page 471-472, it has been held as under:
"91. Shri T.R. Andhyarujina, the learned Senior Counsel appearing for the respondents in WP No. 265 of 2006, contended that Articles 15(4) and 16(4) operate in different fields and Article 9. 15(4) enables the State Government to make special provisions for Backward Classes, SCs and STs which can be done both by law or by executive order. The special provision in Article 15(4) is not restricted to advancement of SEBCs, SCs and STs in educational institutions only and enables the State to make several kinds of positive action programmes in addition to reservations. As a condition for giving aid, the State can make reservations for SEBCs, SCs and STs in educational institutions which are State owned or State aided. The State, however, cannot make such reservations in private unaided educational institutions, as held by this Court in T.M.A. Pai Foundation and P.A. Inamdar. This disability was because of T.M.A. Pai Foundation which provided that private unaided educational institutions had a fundamental right to "occupation" of carrying on education under Article 19(1)
(g). Therefore, Parliament introduced Article 15(5) by the Constitution (Ninety-third Amendment) Act to enable the State to make special provisions for the advancement of SCs, STs and SEBCs in relation to a specific subject, namely, admission in educational institutions including private educational institutions, whether aided or unaided, by the State notwithstanding the provisions of Article 19(1)(g). However, Article 15(5) excluded private educational institutions which are minority educational institutions referred to in Clause (1) of Article 30. The saving for minority educational institutions in Article 15(5) is really ex abundanti cautela as Minority Educational Institutions were constitutionally protected and at all times considered different from other private educational institutions.
92. Article 15(5) does not take away the "basic structure" of the Constitution. The "basic structure" of the Constitution should not be trivialised to mean other features of the Constitution. Reference was made to the observations made by Khanna, J. in Kesavananda Bharati case. It was also submitted that Article 15(5) does not amend Entry 25 List III to the extent that the State can no more make laws for reservation of seats in Minority Educational Institutions and, therefore, it is incorrect to say that the amendment in Article 15(5) required ratification under Article 368(2). The State's power to legislate under Article 245 is always subject to the other provisions of the Constitu9tion, including fundamental rights.
Article 15(4) does not take away the power of the State to make reservations in its own institutions by an executive action under Article 162. Right to carry on business is not a part of the basis structure of the Constitution."
(xi) Moreover, looking to the roster points, as stated in the executive instruction dated 10.6.2011 at Annexure 11 to the memo of petition, it appears that there is no unreasonable or excessive reservation fixed by the Government for admission in the Post Graduate Study in the Medical Faculty. Out of total 56 seats available, 28 seats have been kept for the candidates belonging to general category, 14 seats have been reserved for the candidates, belonging to Scheduled Tribes, 6 seats have been reserved for the candidates, belonging to Scheduled Caste, 5 seats have been reserved for the candidates, belonging to Most Backward Class i.e. 10. O.B.C.-I and 3 seats have been reserved for the candidates, belonging to Backward Class i.e. O.B.C.- II. Thus, the reservation is not exceeding 50 % of the total seats available for Post Graduate Study in a Medical Faculty. Similarly, there is reservation for Diploma Course also. Out of total 37 seats, 19 seats are unreserved for the candidates, belonging to general category and their roster points have also been stated in the aforesaid executive instruction, which is at Annexure 11 to the memo of petition.
(xii) Looking to the aforesaid facts and circumstances, it appears that socially and educationally backward class or Scheduled Caste and Scheduled Tribes candidates will get proper reservation and they will have adequate chance to study in a Post Graduation in the Medical Faculty. The respondent-Government has not fixed 100 % reservation for Neurosurgery, ENT(Radiology), Dermatology and FMT. All these subjects are having only one seat. A candidate having roster points 1, 3, 5 , 7 and 9......,which are meant for general category candidates, can also choose any one of the aforesaid seats or any of the aforesaid subjects for his Post Graduation study in medical faculty. There is no legal obligation on the part of the State to fix the roster points subject-wise, which is the main argument canvassed by the learned counsel for the petitioners.
If this contention is accepted, then the Government may fix the reservation for certain subjects, which are having only one seat. To avoid this situation, rightly a policy decision has been taken that roster points have been fixed and the candidates will be called, who can choose any one subject out of the aforesaid 18 subjects.
For the candidates, belonging to general categories, the roster points are 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53 & 55 For the candidates, belonging to Scheduled Tribe category, the roster points are as under:
2, 8, 10, 14, 18, 22, 26, 30, 34, 38, 42, 44, 50, 52 For the candidates, belonging to Scheduled Caste category, the roster points are as under:
6, 16, 24, 36, 46, 66 For the candidates, belonging to O.B.C.-I category, the roster points are as under:
04, 20, 32, 48, 54 For the candidates, belonging to O.B.C.-II category, the roster points are as under:
12, 28, 40 11.
(xiii) On the basis of the aforesaid roster points, a candidate can choose any of the subjects, looking to this policy decision. On the contrary, the state has fixed a very healthy reservation policy.
Subject-wise reservation may result into 100 % reservation, whenever only one seat is available in a particular subject and, therefore, the argument canvassed by the learned counsel for the petitioners that subject-wise reservation ought to have been fixed by the Government is not accepted by this Court. Appointment on the post for employment under Article 16 of the Constitution of India is one thing and to impart education, especially in Post Graduation Study in a Medical Faculty, is altogether different one, which is controlled by Article 15(5) of the Constitution of India. Article 15(5) of the Constitution of India has been amended and brought into force in the year 2006, which permits the State to make the aforesaid reservation policy.
9. As a cumulative effect of the aforesaid facts and reasons and the judicial pronouncements, I see no reason to entertain this writ petition. There being no substance, this writ petition is hereby dismissed.
( D.N. Patel, J. ) A.K.Verma/