Bombay High Court
Dr. Sanjay Manmal Sanghavi vs State Of Maharashtra Adn Others on 26 July, 1989
Equivalent citations: AIR1990BOM232, AIR 1990 BOMBAY 232, (1990) MAH LJ 115
ORDER Deshpande, J.
1. By this petition under Art. 226 of the Constitution, the petitioner seeks a direction for quashing the selection of the respondents 4 & 5 for the Post Graduate three-year Degree course in Orthopaedics and to admit him for the postgraduate three-year degree course in Orthopaedics in the Govt. Medical College, Nagpur.
2. The petitioner passed M.B.B.S. examination in May 1989 securing 264 out of 400 marks in General Surgery. His internship commenced in July 1987 and was completed in June 1988. The respondent No. 2 Dean of the Govt. Medical College, Nagpur issued a notice on 16-8-1988 inviting applications for Post Graduate registration for three year Degree course and also for 2 year Diploma courses from August 1988 term, stating therein the seats available in open and reserved categories in different subjects, the reservation being 34% for all the reserved categories in pursuance of the Govt. Resolutions dated 18-6-1971 and 20-8-1983. Simultaneously a notice was also issued in respect of the two year Post Graduate Degree course for the candidates who had completed 2 House Jobs by 31st July 1988. We are in this case concerned only with the three year course for Post-graduate degree in Orthopaedics.
3. In all four seats were advertised in two notices issued on 16-8-1988 (Annexures A & B to the petition) for two year and three year degree courses in Orthopaedics. Out of them, two seats were for M.S. (Orthopaedics), both being the open category. By an earlier notification dated 27-4-1988 for three year Postgraduate degree course, 3 seats were advertised for the M.S. in Orthopaedics, two out of which were to be for the open category and one for the other Backward class category. One seat was increased, after the notice dt. 27-4-1988 was issued, upon the representation of one Dr. Ingle, who belongs to the Scheduled Caste category. On 18-8-1988, the petitioner made a representation to the Dean, Govt. Medical College, Nagpur (Annex. 'C' to the petition) contending that the quota of reservation had been exceeded by the inclusion of respondent No. 5 Dr. Baitule, who belongs to VJNT category and Dr. Ingle, who belongs to the Scheduled Caste category.
4. Dr. Baitule was admitted for the three year course in Orthopaedics in the first 70% of the seats in response to the notice dated 27th April, 1988. There is no dispute that he secured 281 out of 400 marks and though he belonged to VJNT category, he was entitled to get a seat in the open category on the basis of his merit without reference to his caste. The objections raised by the petitioner were rejected by the respondent No. 2-Dean, Govt. Medical College, Nagpur. The only controversy raised at the time of the hearing of the petition was that the quota fixed for VJNT category had been exceeded and had the inclusion of Dr. Baitule been considered, no additional seat could have been given to the VJNT category and the additional seat which came to be given to the respondent No. 4 Dr. Bharati as belonging to the VJNT category was in excess of the quota admissible for the category, thereby depriving the petitioner of a seat in the open category for the three year degree course in Orthopaedics. It was not disputed on behalf of the State that the percentage of reservation had to be secured separately for the three year degree course determinable with reference to the 70% quota to be filled in April and 30% quota to be filled in August, 1988.
5. The contention on behalf of the petitioner was that there was no back-log to be filled in respect of the VJNT category. A chart showing the candidates who were granted registration in Orthopaedics from February 1978 to August 1988 was included in the petition. A corrected chart was made available to us at the time of hearing to show the distribution of seats in M.S. (Orthopaedics) from 1978 to 1988. There was one seat available for M.S. (Orthopaedics) for each of the two terms every year from February 1978 to August 1983. In February 1980, the seat allotted for the first term went to VJNT and in August 1981 one seat allotted for the second term went to Scheduled Tribes. One seat came to be allotted to VJNT in August 1984. By the inclusion of Dr. Baitule-respondent No. 5 in February 1988, one out of the four seats which were available for that term again went to VJNT category. The contention on behalf of the respondent was that though the seat which was given to VJNT in August 1988 may be taken into consideration for determining the back-log that one which came to be allotted in August 1984 out of the two seats available cannot be considered. This seat was the subject-matter of the Writ Petition No. 1620 of 1984 decided on 8-2-1985 by Pendse and Paunikar, JJ. Apparently an extra seat was created for Vimukta Jatis in 1984 and upon a challenge by one Pramod Agrawal on the ground of excess reservation, this Court found that creation of the additional seat was necessitated by the additional number of students who had passed the qualifying examination and the claim made by the Dean that he felt that it was wise to reserve that seat for the candidate belonging to the Vimukta Jatis could not be sustained as there was no excess reservation for the VJNT category. This Court while striking down his admission refused to make a direction for creation of a supernumerary seat but left it to the Dean and the State Govt. to consider how the hardship to the respondent No. 3 who had been granted registration could be avoided. As a sequel to this judgment, the seat came to be declared as open but nonetheless the VJNT candidate who was admitted was continued. It is evident that since that candidate belonged to VJNT category, the seat must be regarded as having been made available in August 1984 to VJNT candidate.
6. Regarding the seat given to respondent No. 5 Dr. Baitule (VJNT) in February 1988, the contention was that the seat went to Dr. Baitule because he could have qualified for the open category and it could not be said that it was a seat made available to the VJNT category, Dr. Bharati, respondent No. 4, who is a VJNT candidate, secured 232 marks out of 400 while the petitioner Dr. Sanghavi secured 264 out of 400 marks and if their claims were considered on merit, the petitioner would have been entitled to have that seat and not the respondent No. 4 Dr. Bharati.
7. The challenge to the inclusion of Dr. Bharati in the list of candidates admitted, was that the VJNT seat could not have been made available to him because of the excess about the permissible percentage of reservation to that category. We have pointed out above that there was no question of back-log because the three year degree course had come into existence from the year 1988. Since only 4% reservation obtained for the VJNT category, it would follow that there was no back-log and from the return filed by the respondent-Dean, Govt. Medical College, Nagpur, it is clear that the Dean also did not consider that there was a back-log, the effort obviously on his part being to show that there was no excess reservation by inclusion of the respondent No. 4 Dr. Bharati. The contention of the respondents 1 and 2 was that the reservation was to be subject-wise on the basis of the Govt. Resoln. No. MCG/2571/24516 dated 18th June. 1971. The percentage prescribed under the Govt. Resolution dated 10th July, 1969 was 4 for VJNT and the maximum percentage after additional distribution was worked out in column No. 4 at 5% for the VJNT category. The instructions were that the reservation referred to shall be as far as possible subject-wise, the allied specialities being lumped together, where necessary for reservations to enable students to compete for the reserved posts indicated in the notifications inviting application and preference of students, merit and availability of seats will be the criteria for selection. Chart No. 7 which has been produced before us shows that the total number of seats in Orthopaedics and allied subjects was 36 and the seats given in the reserved category were 13 and thus there was an excess of .76 or one seat by the allotment of one seat to the respondent No. 4 Dr. Bharati, apart from the seat which was given to the respondent No. 5 Dr. Baitule. The fractional excess would thus justify the petitioner's claim.
8. Additionally, it appears to us that the position of Dr. Baitule respondent No. 5 would make a material difference. He had already been admitted in April 1988 and though his inclusion was not against the VJNT category but in the open category, by virtue of his inclusion, the consequence was that a VJNT candidate had been provided for and there could be no occasion for admitting the respondent No. 4 Dr. Bharati thereafter on the premise that one seat was reserved for the VJNT category.
9. The learned Asstt. Govt. Pleader as well as Shri S. V. Manohar, learned Counsel for the respondent No. 4 relied on the Division Bench decision of this Court in Ravindra Sahadeo v. Dean, Grant Medical College, , in support of their submission that respondent No. 5 Dr. Baitule's inclusion which had to be related to the open category could not be reckoned in the VJNT category, though one seat was made available to the VJNT category in that year by the notification dated 9-9-1988. It is not disputed that while considering the quota made available for the reserved categories, the admissions made for the whole of the year have to be taken into consideration. In the view of the Division Bench in Ravindra's case, in respect of admission to post-graduation course in Medical College while allotting the seats between reserved and non-reserved categories, the marks/grades obtained by all 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. The Division Bench observed that those who come on their merit in the open merit list do so not in the 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.
10. The correctness of me latter part of the above observation has been seriously questioned on behalf of the petitioner on the ground that this interpretation is not based upon a consideration of the relevant constitutional provisions and is contrary to the long line of previous decisions of this Court which the Division Bench had to follow.
11. The first decision in point is Ashok Krishnarao Dhote v. Dean, Medical College, Nagpur, 1967 Mah LJ 915, where a Division Bench of this Court consisting of N. L. Abhyankar and D. G. Palekar, JJ. (as he then was), after referring to the decision in Chitralekha v. State of Mysore, observed as follows:
"It must be remembered that every student who has a creditable performance qualifying him for admission has a right to have his claim considered on merits. When this right is restricted on account of the necessity of reservation of seats to students belonging to specified categories, nothing need be done which will in any manner or to any degree put in jeopardy the fair and equal chance of the generality of students eligible for admission in the open list by a devious interpretation of the rules. We have, therefore, come to the conclusion that on a proper interpretation of rules for admission framed by the State Government, the Dean is required to make firstly, one general list compiled according to percentage of corrected marks earned by each applicant in order of merit. This list must also show against the names of each student whether or not the student belongs to categories specified in column 5(i). Thereafter the Dean will be required to find out how many of these candidates belonging to specified categories have come in the open list on account of their performance and earning the corrected percentage of marks. Excluding the number of such students if there is remaining any number of seats required to be filled to completed the quota of seats reserved for particular categories, the Dean will be required to make further admissions to this reserved class from among the students belonging to this class in the order of merit from those who have not been admitted in the open list."
12. A Full Bench of this Court consisting of five learned Judges, including one of the learned Judges who constituted the Division Bench in Ravindra's case Supra) after referring to the decisions of the Supreme Court viz., in P. Rajendra v. State of Madras, ; Periakaruppan v. State of Tamil Nadu, and the State of Andhra Pradesh v. U.S.V. Balaram. , approved the view taken in Ashok Dhote's case (1969 Mah LJ 915) (supra). The controversy there related to the raising of the reservation from 24% to 40%. The contention of the petitioner was that increase of 16% in the reserved quota of the seat belonging to the first category of the backward class (Scheduled Caste, Scheduled Tribe and the Nomedic Tribe) in the manner done exceeded the quota which would be available to the open category. This was met by the State Government by stating that the matter was considered by the Sub-Committee of the Cabinet as well as the Cabinet, and the Cabinet took the final decision that the initial percentage of reservation of seats for the first three categories of backward classes viz. 24% should be made exclusive of admissions secured by students of these categories on merit subject to the maximum limit of 40% while 10% reservation fixed for the fourth category of backward class should be maintained as being inclusive of admissions secured in the open merit. The statement in para 11 of the additional affidavit filed by Dr. Kulkarni, Deputy Secretary to the Govt. there was as follows :
"Under the present rules, the crystallised position is this that such of the B.C. students of the said 3 categories who are admitted on merit will not be counted against the reserved quota so long as the total number of students admitted on merit and those in the reserved quota together do not exceed 40% of the total available seats. These respondents want to make the position absolutely clear by taking 2 hypothetical extreme cases as detailed below. Any other situation would be within these 2 extreme limits. These 2 limits are as follows :--
(a) In a given year there may not be single B.C. candidate securing admission on merit. In that case, the total number of seats available for 3 categories of B.Cs. as per the rule would he 24% of the available seats.
(b) In a given year the number of B.C. candidates securing admission on the basis of merit may reach 40% of the total available seats. In that event the number of seats against the reservation for B.C. candidates would be zero."
The Full Bench observed that in view of this statement, the challege to the impugned Rules, viz., Rule 6(a) as amended and Rule 7, Annexures 'D' and 'E' respectively under Art. 15(1) and/or under Art. 15(1) read with Art. 29(2) must fail, and rejected the challenge.
13. The modality of working out the ciaims of reservation contained in the Govt. resolution which was laid down by the Divi-
sion Bench of this Court in Ashok's case (1967 Mah LJ 915) (supra) was endorsed by the Full Bench. The matter came up again for consideration before a Division Bench of this Court consisting of Ginwala and Patel, JJ., in Anil v. The Dean, Govt. Medical College, Nagpur, , and it was observed that :
"The purpose of reservation in favour of the castes, tribes and communities specified in sub-clause (1) of Cl. A of R. 5 is to guarantee to them minimum number of seats out of the total seats in the Medical Colleges run by the State Govt. In other words, the special provision has been made to meet the anxiety on the part of the State to see that students belonging to these socially and educationally backward classes do secure a minimum number of seats in the Medical Colleges and their admission is not hampered for the simple reason that they do not compete well with the advanced classes. The purpose behind this reservation obviously is not to guarantee a minimum number of seats over and above the seats which such students may secure in open merit. If the said provision is interpreted as sought to be done by the petitioner, it would mean that those students belonging to these classes who secure admission on the basis of their own merits and belong to the backward classes should be completely ignored while admitting candidates for the reserved seats. This would mean that over and above such candidates being admitted on their own merit more candidates to the extent of the reserved seats should also be admitted, thus enlarging the number of candidates belonging to such classes above that reserved for them."
What is noticeable is that there is no reference to the Full Bench decision of this Court in Special Civil Appln. No. 1372 of 1977, Sunanda v. State of Maharashtra, decided on 8th September, 1977 in Anil's case, probably because the Full Bench judgment, though marked for reporting, was not reported. But it is apparent that in all the three cases to which we have referred, this Court had consistently taken the same view regarding the modality of working on the reservations after carefully considering the constitutional provisions and the authorities.
14. The learned Asstt. Govt. Pleader contended that some of the observations in V. Balaram's case, , strike a different note. While considering the decision of the Kerala High Court, which had held that the reservation is irrespective of some of the candidates belonging to the backward classes, getting admission on their own merit, the Supreme Court noted the Andhra Pradesh High Court had taken a slightly different view. It however, went on to say that if once a class appears to have reached a stage of progress from which it could be safely inferred that no further protection is necessary, the State will do well to review such instances and suitably revise the list of Backward classes. In fact this decision has been referred to by the Full Bench and also by the Division Bench in Anil's case (AIR 1958 Bom 153) (supra). In the latter, it has been pointed out that the Supreme Court did not pronounce on the correctness of the decision of Kerala and Andhra Pradesh High Courts.
15. Adopting the view taken in Ravindra's case (supra), the learned Asstt. Govt. Pleader urged that the other interpretation would creat a ceiling on the number of candidates belonging to the reserved categories who can be allotted seats and that ceiling would be dictated by the seats reserved even if they can get in more number by competing with others on merit. It is difficult to agree with this submission because there is no ceiling on the number of candidates who can get a seat on the basis of merit, the ceiling in such a case being only the total number of seats available. It is only when the question of reservation is raised that the number of candidates will have to be limited to the percentages prescribed. With respect, we find to commend in the view expressed by the Division Bench in Ashok's case (1967 Mah LJ 915), the Full Bench in Dr. Suresh's case (Special Civil Appln. No. 1372 of 1977, D/- 8-9-1977) (Bom) and the Division Bench in Anil's case.
16. The counsel for the respondents urged that if we are disposed to take a view contrary to the one in Ravindra's case, the matter will have to go to a larger Bench. On the other hand, the counsel for the petitioner pointed out relying on the decisions in Jaisri Sahu v. Rajdewan Dubey, ; Mamleshwar Prasad v. Kanahaiya Lal, and A. R. Antulay v. R.S. Nayak, , that the judgment in Ravindra's case (supra) can have no binding authority as it was rendered per incuriam. The Supreme Court in Antulay's case while referring with approval to the propositions in Halsbury's Law of England, 4th Edn. Vol. No. 26, page 578 and page 300 and the observations of Lord Goddard in Moora v Hewitt, (1947) 2 All ER 270 at p. 271-A and Panny v. Nicholas, (1950) 2 All ER 89, 92A, pointed out that 'per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong. No authority is needed for the proposition that the decision of the larger Bench binds smaller Benches. In Mamleshwar Prasad's case (supra), the Supreme Court said that in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should, however, be a glaring case and an obtrusive omission.
17. In Buddah Singh v. Laltu Singh, ILR 37 All 604 : (AIR 1915 PC 70), the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of the High Court differs from the opinion given by a previous Bench. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question and a contrary decision is given without reference to the earlier decision. It was indicated that a Court is not bound to follow an earlier decision of its own given per incuriam and it must decide which decision to follow. We may not multiply authorities as it is clear to us that the only course we must adopt is to follow the law as laid down by the Full Bench in Dr. Sunanda's case, Special Civil Appln. No. 1372 of 1977. One of the learned Judges of the Division Bench which decided Ravindra's case, , was also a party to the Full Bench decision, but with respect, we find no reason in Ravindra's case for his departing from the Full Bench decision and we are unable to follow the ratio in Ravindra's case. We must, therefore, decide this case in accordance with the dictum in the Full Bench case.
18. Applying the ratio of those decisions, it is clear that respondent No. 5, Dr. Baitule, though he could be selected in the open category, had to be reckoned against VJNT category for which a reservation had been carved out and, therefore, the respondent No. 4 Dr. Bharti could not have been considered in the vacancy for VJNT category.
19. Shri Manohar, the learned counsel for the respondent No. 4, however, urged that the respondent No. 4 has been receiving instructions since August 1988, i.e. for nearly one year; that because he was selected for the three year's post-graduate degree course in Orthopaedics, he resigned his post in Radiology and if he is not protected, he would be subjected to severe hardship. The respondent No. 4 came to be admitted obviously because of the wrong construction on the rules placed by the respondent No. 2 Dean, Govt. Medical College, Nagpur, and the erroneous inclusion of the respondent No. 5 Dr. Baitule who belongs to the VJNT category in the open category. Considering that even a Division Bench of this Court was inclined to take the view favourable to the respondent No. 4 in Ravindra's case, we think that the respondent No. 4 ought not to be deprived of his seat.
20. There was an application for intervention by one Dr. Ahsan s/o Aziz Badar. Though the application was filed on 19-12-1988 it was only this morning that the application for intervention was brought to our notice by the learned counsel for the intervenor. No orders have been passed so far on that application. In view of the fact that the intervenor had never applied for registration in three year Post-graduate degree course in Orthopaedics in response to either of the two notices issued in the year 1988, his case cannot be considered. The application for intervention is, therefore, rejected.
21. In the result, we allow the petition and direct the respondents 1 & 2 to admit the petitioner to the three year Post-graduate degree course in Orthopaedics by creating an additional seat for him on account of his entitlement for the seat for August 1988 in the open category. The respondent No. 3 shall permit the creation of supernumerary post and grant registration, :as the respondent No. 4's registration shall have to be continued in the circumstances of this case.
Rule made absolute in these terms but there will be no order as to costs.
22. Petition allowed.