JUDGMENT
S.C. Dharmadhikari, J.
1. Rule. Respondents waive service. By consent Rule made returnable forthwith.
2. Petitioners seek the following reliefs in this petition :–
(a) That a Writ of Mandamus or any other writ, order or direction be issued, ordering and directing the 1st respondent:
i) not to enforce and implement the earmarking rule while granting admissions to Post Graduate Medical Course due to commence from 27-1-2004; ii) not to implement the revised provisional State Merit List as per the notification dated 14-1-2004; iii) not to give admissions to the students of Bharatiya Vidyapeeth who have not passed their MBBS examination from Pune university; iv) delete the names of two students viz., Somnath Chattopadhyay bearing Roll No. 410906 and Dipendu Mazumdar bearing Roll No. 310663 from the Merit List of general category candidates. 3. All petitioners are students who have passed their MBBS examination. They are seeking admission in post graduate medical course in Medical colleges in the State of Maharashtra. 4. It is an admitted position that the petitioners appeared for the post graduate medical common entrance test held on 27th July 2003. In accordance with the result of this test, merit list has been prepared by the respondents and the petitioners names appear at Sr. No. 265, 89 and 322 respectively.
5. It is the case of the petitioners that in the year 2002, first respondent had framed rules for selection and admission to medical post graduate course. In the instant case we are concerned with Rule pertaining to reservation at Annexure “C” in the 2002 rules. The entire Annexure pertains to reservation and we are only concerned with Clause VI thereunder. The same is reproduced for ready reference :–
“(vi) A reserved category candidate is entitled for admission on the basis of merit on an open category seat, will have the option of taking admission against his/her respective category seat in the college, where specified number of seats have been kept reserved for reserve category, but while computing the percentage of reservation he/she will be deemed to have been admitted as an open category candidate and not as reserve category candidate. One seat in that college, where he/she has taken admission against open seat, shall be earmarked for a candidate belonging to the respective reserved category.
6. It is the case of the petitioners that in the year 2003 also, the respondent No. 1 framed Rules and it is their submission that Rule VII in the said Annexure makes a departure from the rule reproduced above. The rule pertaining to reservation in the 2003 Rules (Annexure “C”) reads as under :–
“(viii) A reserved category candidate is entitled for admission on the basis of merit on an open category seat. But while computing the percentage of reservation he/she will be deemed to have been admitted as an open category candidate and not as reserve category candidate. He/she will have the option of taking admission against his/her respective category seat in the college, where specified number of seats have been kept reserved for reserve category.”
It is the case of the petitioners that though the rule of earmarking has been deleted for the year 2003, respondent No. 1 is applying the same old rule i.e. Rule of 2002 and proposing to earmark seats for reserved category. Petitioners complained about such illegal earmarking in the office of the first respondent but they were informed that the authorities propose to apply pattern of earmarking for the year 2003 as well. Petitioners have, therefore, approached this Court challenging the decision to apply principle of earmarking of seats for reserved category candidates in the selection process which is to commence from 22nd January 2004.
7. The second grievance of the petitioners is that by virtue of a decision rendered by Division Bench of this Court at Aurangabad, the authorities have altered the merit list and have prepared a revised provisional merit list whereunder, petitioners are pushed down. It is their submission that they are being pushed down by authorities as a result of the said direction issued by the Division Bench of this Court and in their submission the said decision is erroneous and requires reconsideration.
8. The third grievance of the petitioners is that as per the Rules (Rule 7.8) only the candidates from Bharati Vidyapeeth Medical College, Pune who have passed/will pass the final MBBS examination from Pune University, will be eligible to appear for PGM-CET. However, when they met one Dr. Shringare on 16th January 2004, they were informed that students of Bharati Vidyapeeth who have not passed their final MBBS from Pune University would also be considered eligible for admissions to P.G. Medical course. Petitioners submit that this decision of the authorities is contrary to the rules framed by them.
9. The last grievance pertains to the students coming from disturbed area and State/Union territory, where there is no medical college. Petitioners submission is that two students, details of whom set out in paras 13 and 14, are being shown in two separate merit lists and this is clearly erroneous. On enquiries being made by petitioners as to how names of these two students are appearing in two merit lists, reply given to them was that, they came from disturb areas State or Union territory where there are no medical colleges and, therefore, they would be entitled to the benefit available to such students under the rules. The contention of the petitioners is that after admission to the MBBS course in the State of Maharashtra, from the category of students from disturbed area, these students appear in the merit list of candidates of disturbed area and their names cannot be included in the merit list of general category candidates who have passed their MBBS exam from this state and who have appeared for the PGM CET seats. Once these students are from the category of disturbed area on no medical college category, then they cannot have their names entered in the merit list for general category candidates and their names should accordingly be deleted.
10. The reliefs are based on these allegations.
11. Mr. Vashi, learned Counsel appearing for petitioner contended before us that in the Rules of 2003 framed by the respondents, there is no provision for earmarking. With the result, the respondents are not entitled to earmark open seats for reserved category candidates. Mr. Vashi next contended that a reserved category candidate is entitled that a reserved category candidate is entitled to take admission either on an open seat on the basis of his merit or on his reserved category. However, once a reserved category candidate takes admission on an open seat it is not possible for the authority to earmark another seat in the same college for a reserved class candidate. In his submission, such an action or decision would be in contravention of the law laid down by the Supreme Court in the case of R.K. Sabharwal v. State of Punjab, . In his submission, if the first respondent is allowed earmarking percentage of reservation will exceed and this will result in a reverse discrimination for open category candidates.
12. Insofar as the other reliefs, Shri Vashi reiterates the averments in the petition and submits that the authorities should be directed to abide by the rules strictly and no contravention or departure therefrom is permissible. Once a rule framed prohibiting the students of Bharti Vidyapeeth, who have not passed their MBBS from Pune from appearing in CET, then there is no question of such students being considered in PG admission. Insofar as students from disturbed areas are concerned, Mr. Vashi submits that the benefit given to the two students with regard to inclusion of their names in the merit list of general category candidates is in contravention of the rules. Mr. Vashi lastly submits that the order pronounced by this Court in W. P. 4352 of 2003, at Aurangabad Bench requires reconsideration and he tried to pursuade us to refer the matter to a larger Bench upon taking a different view than the Division Bench at Aurangabad.
13. Dealing with the last contention of Mr. Vashi first, we are not inclined to make any reference to a larger bench, inasmuch as the order pronounced by this Court at Aurangabad, with regard to an answer given by the petitioner before it to a question in the CET exam is a matter which is decided purely on the facts and circumstances of that case. We are unable to cull out any principle of law laid down therein, from which we are required to either differ or make any departure otherwise. Hence, we turn down the request of Mr. Vashi to refer the matter to a larger Bench. In this behalf it must be observed that the controversy in the present petition does not relate to the allotment of additional marks in any subject in the CET. The controversy in this petition is about the selection of candidates after the test is over and merit list is displayed. Hence there is no substance in this contention of Shri Vashi.
14. Insofar as the students of Bharati Vidyapeeth are concerned, Ms. Kalyanram made a statement before us that students of Bharati Vidyapeeth will not be considered in the Admission process. She points out that in Writ petition No. 3939 of 2003 and 322 of 2003 students of the said Vidyapeeth had been permitted by this Court to appear for the entrance exam scheduled to be held in July 2003 subject to final outcome is well as further orders in this petition. She points out that there are no further orders apart from the permission granted above. In these circumstances, she submits that her statement made above would be subject to any orders that may be passed in the petitions filed by such students. In other words, she submits that the rules would be adhered to by the authorities. In view of this statement of Ms. Kalyanram we need not decide the controversy pertaining to eligibility of students from Bharati Vidyapeeth.
15. Insofar as the disturbed category students are concerned, after perusing the relevant rules, we do not find any merit in the contention of Shri Vashi. Such students, in terms of Rules, have been given a benefit because they come from areas enlisted in Annexure H to the Rules. Rule 6.4 of the Rules is clear. Such students have benefit of the reservation of 18 seats at Government/Municipal colleges in the State of Maharashtra. However, these candidates will have to appear at PGM CET examination. Upon appearance at the said examination, the names of such students are bound to appear in the merit list prepared on the basis of the result of this examination held by the authorities. That, in our view, does not give them any benefit. It does not mean that their names appear in two lists. They belong to a category which is carved out specifically under the Rules and modalities for filling up seats from such category being provided by the rules themselves, we find no substance in the complaint of the petitioners pertaining to these students.
16. The only controversy that now survives for our consideration is with regard to earmarking of seats. In this behalf, a decision of the Supreme Court in W.P. (Civil) 693 of 1995 decided on 15th February 1996, in the case of Ritesh Sah v. Dr. Y.L. Yamul [since reported in 1996(2) Mh.L.J. 174 (SC)] is referred by the parties.
17. The submission of Shri Vashi is that the principle laid down in the decision of the Supreme Court would apply to a selection to MBBS and BDS Course. In any event, he submits that the principle will apply only if there is a specific rule framed in accordance with the principle laid down in the decision. In other words, if the said principle has to be applied and followed, the authorities are required to frame specific rule empowering them to earmark a seat. According to Mr. Vashi, it will not be proper for the authorities and that too during the Course of PG admissions to resort to earmarking. He contends that when seats are being reserved for PG course throughout the State, the authorities reserve the seats college wise and even subject wise. From the total number of seats available at a particular college, the authorities have before them the data subject-wise and category-wise. He invites our attention to Annexure I to the rules in this behalf.
18. On the other hand, Ms. Kalyanram, states that even in the absence of any specific rule, it is permissible for the State to apply the principle laid down in the decision of Dr. Yamul (supra). If the same is applied, action of the authority in the instant case of earmarking seats cannot be faulted with.
19. We find it difficult to accept the contention of Ms. Kalyanram for more than one reason. Firstly, the relevant rule framed by respondent No. 1, shows that no provision of earmarking is made therein. The phraseology insofar as 2002 Rule is concerned, it is absolutely clear. That rule permitted earmarking of one seat in a college where the reserved category candidate has taken admission against open seat for a candidate belonging to a respective reserved category. Such a rule is conspicuous by its absence in the rules framed for this year i.e. 2003. Once it is a settled position that to earmark seat the authorities specifically incorporate a provision in that behalf in the rules, it will not be proper to permit them to resort to such step in the absence of specific rule for this academic year. In other words, concept of earmarking cannot be introduced in the absence of a Rule. What is not specifically or directly provided, rather specifically omitted from the subsequent rule, cannot be permitted to introduce in the Rule. It is well settled that what is directly not provided, cannot be achieved indirectly. More so, when it is not disputed by the respondents that throughout they have been applying this principle after making a provision in that behalf in the rules. Ultimately the framers of the rules have to abide by the same. Any departure or deviation therefrom by the authorities themselves would nullify the object of framing rules for selection of candidates to PG medical course in the State. This would throw the entire admission process in chaos and confusion. Any increase or decrease will be detrimental to the interest of students. Therefore, we are of the opinion that in the absence of a rule, it will no be open for the authorities to earmark any open seat for reserved category candidate.
20. Ms. Kalyanram, apprehends that the principle laid down by the Supreme Court in the decision of Dr. Yamul would then be ignored or brushed aside. We find no merit in this contention either. In that case, the Supreme Court was considering the issue whether a candidate belonging to S.C. or any other reserved category, even if he/she is entitled to be selected for admission in the open competition on the basis of merit, would his/her selection be accounted against quota meant for reserved category or would he/she be treated as an open category candidate. This issue arose before the Supreme Court in the light of specific rule framed by the State Government in the MBBS, BDS medical course for 1995-96.
21. In the case before the Supreme Court, admittedly the petitioner belonged to reserved category. His case was that respondent No. 5 to 36 also belonged to reserved category and, though they could have been admitted on the basis of the marks secured in open merit, yet they were admitted as against the reserved category and as a result, the petitioner was excluded from getting admission to MBBS course. This factual aspect was not disputed in the proceedings before the Supreme Court. It is in the light of these facts that the Supreme Court considered the issue. However, perusal of paras 13, 14, 15 and 17 of this decision makes it abundantly clear that the Supreme Court was also aware of the principles laid down in the case of Indra Sawhney, R.K. Sabharwal and A. K. Singh by it. The Supreme Court was considering a case of total exclusion of the petitioner before it. It is in the light of these facts and also in the light of the submissions of the Counsel for respondent Nos. 5 to 36 before the Supreme Court, that the observations came to be made. However, even while observing that a student is entitled to get admitted on the basis of merit, though belonging to reserved category, to a open seat, he cannot be considered to be admitted against seats reserved for reserved category, the Supreme Court observed that provisions should be so made that it will not work to disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. As to how the objective can be achieved is also pointed out by the Supreme Court in para 17. Therefore, it is obvious that a provision will have to be made for giving effect to the principle laid down in this decision. That apart, Ms. Kalyanram was unable to point out to us as to how the reserved category candidates are either affected prejudicially or are placed in a disadvantageous position in this year. She was unable to demonstrate the necessity of resorting to earmarking of seats in this academic year.
22. In our view, upon perusal of Annexure I and other rules, relevant for the purpose of reservation, it is abundantly clear that if the principle laid down by the Supreme Court is to apply for admission to post graduate medical course, a
specific rule will have to be framed and the position of seats subject-wise and category-wise would have to undergo a change after the rule for earmarking is
framed. In the absence of a specific rule permitting earmarking, if we are to
permit earmarking of seats by the respondents in this academic year, it will mean
that subject-wise, category-wise allocation of seats made as per five years roster
would undergo a drastic change. It may result in the reservation exceeding
permissible constitutional limit. We are unable to uphold action of the authorities
in earmarking the seats for this reason as well.
23. Our attention has been invited to a decision of the Supreme Court in the case of AIMS Students Union v. AIIMS and Ors. and more particularly para 39 thereof which reads thus:–
“When protective discrimination for promotion of equalisation is pleaded, the burden is on the party who seeks to justify the ex facie deviation from equality. The basic rule is equality of opportunity for every person in the country which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels and education like postgraduate courses. Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped – the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there the quantum of reservation should not be excessive or societally injurious. The higher the level of the speciality the lesser the role of reservation.”
Our attention is also drawn to paras 47 and 48 of this decision wherein reference is made to Constitution Bench decision of the Supreme Court in the case of Dr. Preeti Srivastav. This decision is subsequent to the decision of the Supreme Court in Dr. Yamul’s case.
24. Our attention is also invited to three Division Bench decisions of our Court viz., in the case of Anil v. Dean, Medical College, Nagpur reported in AIR 1985 Bom. 753, Ravindra Sonawane v. Dean, Grant Medical College, reported in 1989 Mh.L.J. 456 and Rupali Choudhary v. State of Maharashtra reported in 1990 Mh.L.J. 615.
25. In our view, therefore, it will not be proper to uphold the contentions of Ms. Kalyanram. The Rule as framed has not been challenged and is not capable of being challenged by the authorities themselves. Therefore, it will have to be held that the rule as it stands for the academic year in question i.e. 2003 does not permit earmarking of seats. It is pertinent to note that the Rule does not take away the option of the reserved category candidate to take admission against reserved seat in the college of his choice. Further, the process, according to Ms. Kalyanram, is that first the open seats are filled up and, thereafter, the process of filling up the reserved seats is taken up by the authorities, (See 1989 Mh.L.J. 456)
26. Similarly observation of this Court in another Division Bench decision in the case of Shardul Shashikant Dongaonkar v. State of Maharashtra and Ors. reported in 2000(2) Mh.L.J. 431 would go to show that the option to reserve category candidate as available in the Rules takes care of the right of reserved category candidate in such cases.
27. In the light of the aforesaid discussion, the petition will have to be partly allowed. Rule is made absolute to the extent that the respondents shall not be entitled to earmark upon seats for reserved category candidates in the PG medical admission in the academic year 2003. As far as the other reliefs are concerned, the same are not granted for the reasons recorded above. No costs.