In the High Court of Judicature at Madras
Dated: 12/08/2004
Coram
The Honourable Mrs. Justice PRABHA SRIDEVAN
W.P. No.9158 of 2004
and W.P.Nos., 9740, 15652, 16067 and 17961 of 2004
W.P. No.9158 of 2004
1. Minor D. Ram
2. Minor D. Shyam,
rep. by father and natural
Guardian Dr. D. Balasubramanian. .. Petitioner
-Vs-
Jawaharlal Institute of Post Graduate
Medical Education and Research,
rep. by its Dean
(Directorate General of Health Services)
Pondicherry-605 006. .. Respondent
W.P. No.9740 of 2004 :
K. Sandirakasu .. Petitioner
vs.
1. The Director General of Health
Services, New Delhi.
2. The Director,
Jawaharlal Institute of Post Graduate
Medical Education and Research,
Pondicherry.
3. The Government of Pondicherry,
rep. by Collector, Revenue Department,
Pondicherry. .. Respondents
W.P. No.15652 of 2004 :
S. Vijayashankar, Minor,
rep. by father and natural guardian
K. Sandirakasu. .. Petitioner
vs.
1. The Director General of Health
Services, New Delhi.
2. The Director,
Jawaharlal Institute of Post Graduate
Medical Education and Research,
Pondicherry.
3. The Government of Pondicherry,
rep. by Collector, Revenue Department,
Pondicherry.
4. Arul Prakash
5. B. Priyavadhana
6. Anjani Nandan Vaddi
7. P. Shoba Rani
8. B. Sahithya
9. P. Shakthi
10.P. Sathesh
11.K. Elayavendhan
12.B.S. Arasu .. Respondents
W.P. No.16067 of 2004 :
Minor B. Sahithya, rep. by
her mother Dr. N. Chitra. .. Petitioner
vs.
1. Dean,
Jawaharlal Institute of Post Graduate
Medical Education and Research,
Pondicherry-605 006.
2. The Registrar (Academic),
Jawaharlal Institute of Post Graduate
Medical Education and Research,
Pondicherry-605 006. .. Respondents
W.P. No.17961 of 2004 :
P. Satheesh, Minor, rep. by
his father and natural guardian
Ponnarmeni. .. Petitioner
vs.
1. The Director General of Health
Services, New Delhi.
2. The Director,
Jawaharlal Institute of Post Graduate
Medical Education and Research,
Pondicherry.
3. The Government of Pondicherry,
rep. by Collector, Revenue Department,
Pondicherry.
4. Arul Prakash Pandian
5. Priyavadhana
6. Anjani Nandan Vaddi
7. P. Shoba Rani
8. B. Sahithya
9. P. Shakthi .. Respondents
PRAYER : Writ Petitions filed under Article 226 of the Constitution
of India for the reliefs stated therein.
For Petitioners : Mr. V. Ajay Kumar
(For petitioner in W.P.
No.15652 of 2004)
Mr. R. Krishnamurthy,
Senior Counsel for
Mr. Vijay Narayan
(For petitioners in
W.P. No.9158 of 2004)
Mr. A. Sasidharan and
Mr. S. Ashok Kumar
(in W.P. No.16067 of 2004)
For Respondents : Mr. V.T. Gopalan,
Additional Solicitor General
of India, assisted by
Mr. M.T. Arunan, A.C.G.S.C.
Mr. Sasheedharan for Government
Pleader (Pondicherry) (For R-3)
Mr. T. Eswaradhas (For R-4 in
W.P. No.15652 of 2004)
:O R D E R
In all these writ petitions, the Prospectus issued by the
Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER),
Pondicherry is being challenged with regard to Clause 3.1. Clause 3 .1 of the
Prospectus reads thus :-
“3.1 Number of Seats : Seventy-five seats are available
for admission during 2004 to the First Year M.B.B.S. Course. These seats are
distributed as under :
(a) Open General 14
(b) Open Scheduled Caste 8
(c) Open Scheduled Tribe 4
(d) Pondicherry General 15
(e) Pondicherry Scheduled Caste 5
(f) Seats to be filled on the basis
of Common All India Entrance
Test by CBSE 11
(g) Government of India nomination
subject to fulfillment of basic
requirements laid down, vide
para 2.1, 2.2 and 2.3 18
Total 75"
Clause 3.5.1 reads thus :-
“3.5.1 Definition of Pondicherry Union Territory Residents :
The 20 Seats reserved for Pondicherry General and Pondicherry Scheduled Castes
are open to applicants who are Pondicherry Residents provided he/she is an
Indian National and satisfies either of the following two criteria:
(a) Those candidates / their parents residing continuously
in the Union Territory of Pondicherry for at least five years immediately
preceding the date of application.
(b) Children of Central/State Government Servants,
including employees of Public Sector undertaking under the Central/State
Government posted and serving in the Union Territory of Pondicherry for at
least a minimum period of ONE year prior to the last date for submission of
application.
NOTE : Residence Certificate must be produced in the prescribed form
at the time of admission.”
2. In Writ Petition Nos.15652 and 17961 of 2004, the petitioners
claim that when it is settled law that a person migrating from one State/Union
Territory to another State/Union Territory cannot carry the benefit of
reservation he has in the State or the Territory of his origin to the place
where he has migrated, the definition is unconstitutional. The definition
denies the Pondicherry Scheduled Caste persons who have Pondicherry as their
place of origin, their right. The applicants who belong to the Scheduled
Castes and who were born in Pondicherry are denied their right of reservation.
3. Writ Petition No.9158 of 2004 has been filed on the ground
that when out of the seats reserved for Scheduled Castes a special concession
has been made for Pondicherry Scheduled Castes, there is no justification to
deny a similar concession to Pondicherry Scheduled Tribes.
4. Writ Petition No.9740 of 2004 has been filed by the petitioner
in W.P. No.15652 of 2004 for quashing the Prospectus on the ground that it is
unconstitutional.
5. Writ Petition No.16067 of 2004 has been filed by a student who
is found her name in the students admitted under the Pondicherry Scheduled
Caste category, but is denied her seat because of interim orders obtained in
this Court, directing the respondent to reserve one seat.
6. W.P. Nos.9740, 15652 and 17961 of 2004 : In all
these matters, the petitioners submit that the definition of Pondicherry
Scheduled Castes is contrary to the law laid down in the judgments in 1990 (3)
S.C.C. 130 [Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College &
Others], and 1994 (5) S.C.C. 244 [Action Committee on Issue of Caste
Certificate of Scheduled Castes and Scheduled Tribes in the State of
Maharashtra & Another vs. Union of India & Another] and is also violative of
Articles 341 and 342 of the Constitution of India. It was also submitted that
the entitlement to the right to be considered for admission under the
reservation quota should be based on the Presidential Order, and only a person
who is resident as on that date will be entitled to the benefits of being
considered as a Pondicherry Scheduled Caste.
7. Reference is also made to the Ministry of Home Affairs letter
dated 22.3.1977 with regard to the issue of Scheduled Castes and Scheduled
Tribes. In this, it is specified that as per Articles 341 and 342 of the
Constitution, the President issues orders notifying the Scheduled Castes and
Scheduled Tribes in relation to a particular State or Union Territory from
time to time. But, the people belonging to the same caste, but living in
different States may not suffer the same disability and therefore, the
residence of a particular person in a particular locality has a special
significance. This was stressed in order to give guidelines to the
authorities to issue certificates. According to the learned counsel for the
petitioners, when this is the legal position, the Prospectus must be quashed
since the requirement of residence is contrary to the Constitutional
requirements. Apart from the two judgments referred to above, the learned
counsel also referred to the judgment of S.S. Subramani, J. in W.P.
Nos.9343 of 1997 Batch as well as the judgment of a Division Bench in Writ
Appeal Nos.247 and 818 of 1996.
8. As regards the petitioner in W.P. No.9158 of 2004, who claims
that Pondicherry Scheduled Tribes should also be included, his case is that
when there is a specific provision made for Pondicherry Scheduled Castes, the
Pondicherry Scheduled Tribes who satisfy all the requirements – there can be
no dispute that he belongs to the Scheduled Tribe, his father having graduated
from the JIPMER under the Scheduled Tribe quota and also their having been
residents of Pondicherry for more than five years – the omission to provide a
quota for Pondicherry Scheduled Tribes violates the Constitutional right of
the petitioner. It was also pointed out that during the earlier years, there
was such a reservation and that has been removed, which has resulted in
Constitutional violation.
9. The learned Additional Solicitor General of India appearing on
behalf of the respondents would submit that this question had already been
decided in 2000 Writ L.R. 496 [Puvvala Sujatha vs. Union of India & Others]
by P. Shanmugam, J. That case also dealt with the admission to M.B.B.S. in
JIPMER and this very Prospectus was challenged therein. The learned Judge in
that case had considered the judgments reported in 1990 (3) S.C.C. 130 and
1994 (5) S.C.C. 244 cited supra and had dismissed the writ petitions, finding
no illegality in the Prospectus. Therefore, according to the learned
Additional Solicitor General, it is not possible to resuscitate the same
question once again. Reference was also made to the judgment in 2001 (2)
M.L.J. 311 [Bharathi vs. The Secretary to Government, Health and Family
Welfare Department, Chennai], in which the petitioner challenged the clause in
the Prospectus of the Tamil Nadu Professional Courses Medical / Dental /
Paramedical which insisted that students should have studied both Plus One and
Plus Two classes in the schools located in the Village Panchayat. In that
case, D. Murugesan, J. held that reservation is only by way of concession
and the petitioner cannot challenge it as a matter of right similar to a right
which a candidate can claim under the rule of reservation. According to the
learned Judge, a concession such as this is granted by the Government, which
can also withdraw it if it chooses to do so, whereas the reservation quota
cannot be withdrawn.
10. Learned Additional Solicitor General referred to the Scheduled
Castes and Scheduled Tribes that are enumerated as per the Presidential
Notification in each State or Territory, as the case may be. It was shown
from a Model Roster for Reservation that as regards the Union Territory of
Pondicherry, there are 16 Scheduled Castes, but no Scheduled Tribes and 27
O.B.Cs. The Note to this Model Roster which was produced shows that for
Delhi, the Rosters which are prescribed for recruitment on an all India basis
is to be followed; for Goa, it will be the same as in the Union Territories of
Daman and Diu and therefore, when there are no Scheduled Tribes notified for
the Union Territory of Pondicherry, the Prospectus did not allocate any seat
for Pondicherry Scheduled Tribes. The judgment in 1978 (II) M.L.J. 27
[Miss Mary Varghese vs. Principal, Jawaharlal Institute] was referred to, in
which the petitioner challenged the Constitutional validity of the selection
made on the ground that the selection of students on the basis of nativity was
unconstitutional. There, under the head ‘ Pondicherry General’, seats were
allotted also on the ground of nativity. The Pondicherry residents were
defined in that as :
(1) Natives of Pondicherry by virtue of birth;
(2) Candidates having continuous residence for five years or more
at the time of submission of application form;
(3) The wards of Central Government employees including employees
of Public Sector undertakings under Central Government posted in the Union
Territory of Pondicherry irrespective of the period of their residence in the
Union Territory.
11. In the present Prospectus, a native of Pondicherry is not
included, but the definition of Pondicherry residents is somewhat similar to
Category 2 and Category 3 above. In the above decision, the learned Judge
held as follows :-
“One can well understand that the persons having residence at
Pondicherry being given encouragement to get admission in the local Medical
College. Equally, it may be considered reasonable for the wards of the
Central Government employees working in Pondicherry to gain admission on that
score.”
It is now urged that the clause relating to residence and the clause relating
to wards of Central Government were held to be reasonable and therefore, even
in the year 1978, when a challenge was made, though only to the clause
relating to nativity, the same was upheld. The learned Additional Solicitor
General would submit that this question has already been decided by P.
Shanmugam, J. The petitioners having participated in the examinations knowing
fully well the definition of Pondicherry Residents and knowing fully well that
no quota was reserved for Pondicherry Scheduled Tribes, cannot now challenge
the Prospectus as held in the said judgment after having met with rejection.
12. The judgment reported in 2000 Writ L.R. 496 cited supra can
be looked into first to see whether that judgment answers all the questions
raised by the petitioners herein. The basic facts are almost identical
inasmuch as the application is to JIPMER for the First Year M. B.B.S.
Course. Even in that year, the number seats was 75 and the allotment of seats
was made as in the instant case. The prayer was also for quashing of Clause
3.5.1. of the Prospectus. In that case, the petitioner had made a wrong
statement and obtained a resident certificate on that basis. But, however,
the learned Judge had considered the legal position of the Circular issued by
the Government of India, Ministry of Home Affairs dated 22.3.1977, which is
referred to in the above paragraph and it was held as follows :-
“Thus, the legal position as per the circular is that the term
residence for the purpose of acquiring Scheduled Caste status is the place of
permanent abode of their parents at the time of notification of the
Presidential Order under which they claim to belong to such a caste. The
issue of Community Certificate is not to be confused with the eligibility
criteria laid down by the second respondent.”
Further, it was observed as follows :-
“The second respondent being a Central Government institution, they
have reserved eight seats for all the Scheduled Caste candidates. However, as
a concession, in the place of the location of the institution, five seats are
set apart for residents of Pondicherry Scheduled Castes. This is not to be
treated as a reservation under Article 16(4 ). It is only a concession shown
and a source of selection for the colleges on the basis of the location. Just
like Pondicherry General, where 15 seats are located to residents of
Pondicherry, similarly, five seats are located to residents of Pondicherry.
Those residents have no connection with the Scheduled Caste Presidential
Notification. Further, it cannot be in any way, restricting the right of the
Scheduled Castes in the reservation of allotment to the eight seats reserved
for Scheduled Castes.
…..
Thus, the allotment of seats on the basis of residential requirement
to Scheduled Caste candidate is not a reservation under Article 15(4 ) or
16(4) of the Constitution of India. It is a concession or a source of
selection decided by the Central Government on the basis of the location of
the institution within Pondicherry State. ”
The learned Judge also referred to A.I.R. 1971 S.C. 1762 [D.N. Chanchala
vs. State of Mysore], wherein it was observed by the Supreme Court,
“The Government is entitled to lay down sources from which selection
would be made. A provision laying down such sources is, strictly speaking,
not a reservation. It is not a reservation as understood by Article 15
against which objection can be taken on the ground that it is excessive.”
This is applicable to educational institutions run by the Central Government
and not the State Government. Therefore, the ratio laid down in the judgments
in 1990 (3) S.C.C. 130 and 1994 (5) S.C.C. 544 will not apply to the facts
of the present case since they related to admissions in institutions run by
the State Government. The submissions made by the counsel have already been
decided by P. Shanmugam, J. and I am not persuaded to differ from that view.
13. Further, as far as Central Government institutions are
concerned, no distinction is made between Scheduled Caste candidates who have
the origin in a particular State or Union Territory and Scheduled Caste
candidates who have migrated. This clarification is obtained in the
Government of India, Department of Telecom Letter No.1-13/92-SCT dated
18/31.8.1992. As per the clarification obtained from the Ministry of Welfare
and Ministry of Home Affairs, Department of Personnel and Training, there is
no distinction between origin and migration cases as far as Central Government
institutions are concerned. They are applicable only to State Government
services and State Government educational institutions. Applying this
criteria and in view of the fact that the conditions in Clause 3.5.1 of the
Prospectus were met, respondents 4 to 12 have been admitted. The percentage
of reservation for Scheduled Caste candidates in the respondent Institution is
15% and out of the 75 seats, 20 seats are reserved on residential basis and
for the remaining 55, if 15% reservation is applied, it comes to 8.25 and
therefore, 8 seats are given under the Open Scheduled Caste category. As
regards the 20 seats, 15% reservation will actually come to three seats. On
the other hand, five seats are given for Pondicherry Scheduled Castes.
Therefore, the quota for Scheduled Castes has not been diminished. Out of
that quota, as a concession, the Pondicherry Scheduled Caste candidates, as
defined in the Prospectus, have been given five seats. The petitioner has
participated in the examination quite aware of the reservation for Pondicherry
Scheduled Castes. Having participated in the examinations, he now finds
himself out of the running since other students who also applied under the
Pondicherry Scheduled Caste category have acquired more marks than him; so, he
has laid the challenge. There is no violation of the Constitutional
requirement of reservation.
14. Further, from the counter affidavits filed by the respondents,
it is seen that the fourth respondent belongs to Pallar Community, which is
listed as No.9 in the Constitution (Pondicherry) Scheduled Castes Order, 1964.
As regards the fifth respondent, the petitioner has no grievance since
according to him, the fifth respondent is a Pondicherry origin Scheduled Caste
candidate. As regards the seventh respondent, it is seen that he belongs to
Adi Dravida Community, which is No.2 in the Schedule and they are Scheduled
Caste candidates of Pondicherry and they are also residents of Pondicherry.
The same is the case with the eighth respondent, who filed W.P. No.16067 of
2004. Her Admission Card which has been filed in the typed set of papers
shows her as a Pondicherry Scheduled Caste candidate and therefore, she claims
that her entitlement to one of the five seats which has also been granted by
the College cannot be thwarted by the petitioners in these two writ petitions
on the ground that the definition of Pondicherry Scheduled Castes is contrary
to the Constitution.
15. The same issue had come up for consideration, of course, with
regard to employment, in 2004 (1) S.C.C. 530 (Chandigarh Administration vs.
Surinder Kumar) with regard to the Union Territory of Chandigarh, wherein it
was held,
“In the present case we have noticed that the Government of India
instructions contained in the letter dated 26-8-1986 specifically permit that
a recognised Scheduled Caste/Scheduled Tribe of any other State or Union
Territory would be entitled to the benefits and facilities provided for
Scs/STs in the services in the Union Territory of Chandigarh. This letter is
specifically addressed by the Government of India to the Home Secretary,
Chandigarh Administration and deals with employment in the Union Territory of
Chandigarh. Therefore, there is no reason to ignore the instructions
contained in the said letter.”
The decisions in 1990 (3) S.C.C. 130 (cited supra) and 1994 (5) S.C. C. 244
(cited supra) were also referred to and the Supreme Court held,
“The judgments relied upon by the learned counsel for the appellant
only decide the constitutional aspect of the government policy on the subject
at a given time while leaving the policy decision as to what benefits are to
be conferred on persons belonging to reserved categories with the Government
of India. In the present case the Government of India has conveyed its
decision on the point vide its letter dated 26-8-1986 which has not been
modified. Therefore, the instructions contained in the said letter which were
admittedly being followed till 7-9-1999, in our view, continue to be in force.
There is no reasonable basis to discontinue the said decision with effect from
7-9-99 9. No reason or basis has been disclosed for discontinuing the same
with effect from the said date.”
It is seen that in this case the Supreme Court had accepted the decision taken
by the Government to permit in the letter dated 26-08-1980 referred above.
16. But this decision came up again for consideration in 2004 (3)
S.C.C. 132 (S. Pushpa vs. Sivachanmugavelu) in a case that arose out of a
decision of Central Administrative Tribunal at Madras with regard to the
matter of reservation in the Union Territory of Pondicherry, wherein the
Supreme Court held as follows :
“Some persons belonging to the Scheduled Castes in relation to
the State of Tamil Nadu migrated to the Union Territory of Pondicherry and on
the basis of certain notifications issued by the Government of India, as also
the Union Territory of Pondicherry the benefit of reservation was made
available to them and such persons thus got employment in the Union Territory
of Pondicherry. The Central Administrative Tribunal, Bench at Madras, set
aside such appointments/promotions with a direction to review the selection in
regard to the reserved quota excluding the migrated Scheduled Caste candidates
from consideration.”
Relying on 1990 (3) SCC 130(cited supra) and 1994 (5) SCC 244 (cited supra)
the Central Administrative Tribunal and this Court held,
“he would not carry with him the status of a Scheduled Caste
candidate to the State to which he has migrated, nor can he claim such benefit
in that State as available to him as a Scheduled Caste candidate in his
State.”
The attention of the Supreme Court was referred to certain G.O. and letters.
“GO issued by the Government of India dated 4-2-1974 by which a
clarification was conveyed to the Lt. Governor of Pondicherry that Scheduled
Caste/Tribe candidates from outside the Union Territory of Pondicherry should
also be considered for appointment to posts reserved for Scheduled
Castes/Tribes in Pondicherry. Our attention has also been drawn to another
notification dated 6-1-1993 issued by the Government of Pondicherry referring
to, amongst others, the government order dated 4-2-1974 issued by the
Government of India clarifying that since Pondicherry is a Union Territory,
all orders regarding reservation for Scheduled Castes, Scheduled Tribes in
respect of posts/services under the Central Government are applicable to
posts/services under the Pondicherry Administration also. Therefore,
Scheduled Caste/ Scheduled Tribe candidates from outside Pondicherry would
also be eligible for vacancies reserved for Scheduled Castes, Scheduled Tribes
in the Union Territory Administration.”
It was also contended that,
“in view of the provisions contained under Article 239 of the
Constitution of India. The Union Territory of Pondicherry itself has also
issued a circular on the same lines.”
Finally, the Supreme Court held,
“It is true that some distinction has been sought to be drawn
by the respondents between the decision rendered by us in the case of
Chandigarh Admn.(Arising out of SLP(C)No.20366 of 2002 From the Judgment and
Order dated 16-08-2002 of the Bombay High Court in SA No.248 of 2002) and the
cases in hand, also on the basis that the points raised here were not under
consideration in the case of Chandigarh Admn. we, however feel that in case
the impugned decisions of the High Court and the Central Administrative
Tribunal are upheld, in support of which some arguable points having prima
facie merit have been raised, it may sound some conflict with the decision
rendered by us in the case of Chandigarh Admn.
Therefore, in our view, it would be appropriate that these
cases are placed before a Bench of three Hon’ble Judges,so as to consider the
broader issues raised and lay down the law considering all aspects and
provisions of the Constitution and other laws on the subject.”
So the law declared by the Supreme Court as on date with regard to this issue
is stated in Chandigarh Admn. Until a different decision is given, the stand
taken by respondents in this regard, though this is with regard to admission,
is in accordance with the law declared by the Supreme Court in Chandigarh
Admn. case.
For all the reasons stated above, the writ petitions are dismissed.
In view of the above, W.P. No.16067 of 2004 is allowed.
17. W.P. No.9158 of 2004 :
The writ petitioners belong to the Scheduled Tribe community. It is
their case that when Pondicherry Scheduled Castes have been allotted five
seats, there is no reason why the Pondicherry Scheduled Tribes should not be
awarded any seat. The petitioners claim that they are entitled to be
considered for selection.
18. It is seen that there are no Scheduled Tribes in the Union
Territory of Pondicherry and therefore, no reservation is made Pondicherry
Scheduled Tribes. The petitioners only claim that they should be considered
under the Pondicherry Scheduled Tribes category and that is their prayer. The
petitioners seek a declaration that the Prospectus should be held to be
unconstitutional and invalid insofar as it fails to make a reservation for
Pondicherry Scheduled Tribe candidates. Any reservation made on the basis of
residence, be it Pondicherry Scheduled Castes or Pondicherry Scheduled Tribes,
is not a reservation under Articles 15(4) of 16(4) of the Constitution. The
reservation made on the residential basis is, as has already been seen, only a
concession and therefore, the petitioners cannot claim as a matter of right
that reservation should be made for Pondicherry Scheduled Tribes. There is a
reservation made for Scheduled Tribes under the Open Category and whether they
are Pondicherry residents or migrants or otherwise, they will be considered
only under this category. Therefore, the prayer that is sought for by the
writ petitioners in this writ petition cannot be granted and the writ petition
is dismissed. It is seen that Interim orders passed by this Court have
prevented some of the students who have got admission under the Pondicherry
Scheduled Caste quota, which has been upheld, from attending classes. The
students shall be permitted to join the courses forthwith according to the
list finalised by the respondent.
19. However, we must point out an error in the manner in which
seats have been allotted by the respondent Institution applying the rule of
reservation. Paragraph 3 of the counter filed by the respondent Institution
reads as follows :-
“I humbly submit that when the MBBS seats for JIPMER was increased
from 65 to 75, the Ministry of Health & Family Welfare, New Delhi has sent the
revised allocation as follows :
Open General .. 14
Open Scheduled Caste .. 8
Open Scheduled Tribe .. 4
Pondicherry General .. 15
Pondicherry Scheduled Caste .. 5
All India Entrance Examination by CBSE .. 11
Govt. of India nominations .. 18
Since this Institute is under the administrative control of Government
of India, Ministry of Health & Family Welfare, New Delhi, the distribution
orders issued by the Ministry of Health & Family Welfare is as per Letter
dated 03.10.1991 (Annexure-I).
The total reservation for Open Scheduled Tribe comes to six seats out
of 75 seats (i.e. 7.5/100 x 75 = 5.62 rounded to 6 seats). Out of 6 seats, 4
seats already given to Open Scheduled Tribe, the balance 2 seats is added to
Pondicherry Scheduled Caste since there is no promulgation orders for
Pondicherry Scheduled Tribe. After excluding 20 seats reserved for regional
reservation for Pondicherry Union Territory, the remaining seats available are
55. The reservation for Open Scheduled Tribe for 55 seats is 7.5/100 x 55 =
4.12 seats. So there is no shortage for Open Scheduled Tribe. As far as
Pondicherry region is concerned there is no promulgation order for Pondicherry
Scheduled Tribe, the reservation is as follows 7.5/100 x 20 = 1.5 is rounded
to 2 seats. These 2 seats are added to Pondicherry Scheduled Caste i.e. 3 +
2 = 5 seats. Even for Open Scheduled Caste, the reservation is 15% of 55
seats is 8.25, therefore, 8 seats are given to Open Scheduled Caste.
Further, it is informed, out of total 75 seats, 18 seats are earmarked
for Government of India nominations. Only 57 seats are filled by Entrance
Examination basis including 11 seats filled by All India Pre-Medical Entrance
Examination conducted by C.B.S.E. Further, out of 18 seats earmarked for
Government of India nominations, every year more than 5 Scheduled Tribe
candidates are nominated by Government of India. During the last 5 years, the
Scheduled Tribe candidates nominated by Govt. of India are as follows :
1999-2000 - 7
2000-2001 - 6
2001-2002 - 6
2002-2003 - 7
2003-2004 - 7
Hence, even if it is calculated for 75 seats, the Constitutional
reservations comes to 6 seats but actual admission is 11 seats in every year,
which is more than the Constitutional reservations. Moreover, the Union
Territory of Pondicherry has not made any reservation for Pondicherry
Scheduled Tribe. Hence, this Institute has also not reserved/earmarked any
seats for Pondicherry Scheduled Tribe. There is no promulgation order for
Pondicherry Scheduled Tribe.”
It appears that by this calculation, the Scheduled Tribe category has lost two
seats. The respondents should remember that the Scheduled Tribe reservation
quota cannot be reduced. But, that is really irrelevant as the fact that
Scheduled Tribe candidates are nominated every year will not alter the fact
that as per the present allotment, the Scheduled Tribe category gets less than
what it is entitled to.
20. However, the fact that the allotment has not been done properly
will not come to the aid of the petitioners, since their claim is only under
the Pondicherry Scheduled Tribe category. No allotment has been made for this
category and cannot be made for reasons stated above. Therefore, this writ
petition is also dismissed.
21. W.P.M.P. No.21973 of 2004 is filed by one S. Vijayashankar
and W.P.M.P. No.25319 of 2004 has been filed by the Association for
Protection & Welfare of Pondicherry U.T. Origin Scheduled Caste seeking to
implead themselves as second respondents. According to them, they should be
heard in this regard, since allotment to Pondicherry Schedule Tribe will
affect their right. All that the impleading party can be heard to say is that
the Scheduled Caste quota cannot be reduced and that the definition is
unconstitutional. We have already seen that in the allotment, the SC has been
given two more than what it is entitled to and as regards the definition that
have no bearing on the issue to be decided in this case. Hence, both these
W.P.M.Ps. are dismissed.
22. However, there will be no order as to costs. Consequently, the
connected W.P.M.Ps. are closed.
ab
Index : Yes
Website : Yes
To
1. Jawaharlal Institute of Post Graduate
Medical Education and Research,
rep. by its Dean, Pondicherry-605 006.
2. The Director General of Health
Services, New Delhi.
3. The Collector,
Revenue Department,
Government of Pondicherry,
Pondicherry.