ORDER
1. These two writ petitions raise identical questions of law and fact, therefore, they are being decided by a common judgment.
2. The writ petitioner in Writ Petition No. 3893 of 1991 (Anupam Gupta) was stated that he passed M.B.B.S. examination from S. N. Medical College, Agra in the year 1989 having secured 61.8% marks in the said examination. Thereafter, he did his internship from 1-11-1989 to 31-10-1990 from S.N. Medical College, Hospital, Agra and was registered with the State Medical Council, Uttar Pradesh, Lucknow. After the introduction of residency scheme on 22-8-1989 which was notified in the Gazette on 25-11-89, the Post-Graduate and Diploma courses became of three years and two years’ duration respectively. House job was abolished. The admission to three years and two years courses is being done on the basis of competitive examination conducted by the State Government. The said examination is called entrance examination. The entrance examination was conducted on 30-9-90. The residency scheme — dated 22-8-89 or the press note (Anncxure-2 to the writ petition) do not create a bar that the candidate should secure minimum 50% marks in the entrance test to secure admission to the post-graduate degree and diploma courses. When the petitioner filed his form for admission, the bar of 50% marks to secure admission in post-graduate course was not there.
3. The press note which is Annexure-2
to the writ petition indicates that the candidates belonging to Scheduled Caste and Scheduled Tribe were entitled to weightage of 1.65% of the maximum marks of the competitive entrance examination, that is 50% marks. The weightage meant for scheduled caste and scheduled tribe candidate to the extent of 1.65% is not given by any Government order or notification under S. 28(5) of the State Universities Act of 1973. Under S. 28(5) of the U.P. State Universities Act regulation can be framed in the manner prescribed under that section and if the regulation is not framed u/S. 28(5) of the Universities Act said regulation will not be valid. The provision of S.28(5) of the Universities Act regulates procedure for admission to various courses.
4. The Government is said to have issued a notification dated 10-10-90 for the purposes of admission in post-graduate degree and diploma courses. This regulation is said to have been issued u/S. 28(5) of the Universities Act. This notification also does not contain any clause to the effect that general category candidates are required to secure 50% marks for admission to the post-graduate and diploma courses. Copy of this notification is annexed as Annexure-3 to the writ petition. This notification does not also mention weightage of 1.65% for the scheduled caste and scheduled tribe candidates. There is no valid rule which provides that for the candidates belonging to general category, 50% marks is a criteria for making such candidates eligible to seek admission in post-graduate and diploma courses and 40% marks is required in the case of candidates belonging to scheduled caste and schedule tribe for seeking admission to the said course. The information brochure of the Lucknow University for 1990 also does not contain any such restriction or differentiation for scheduled caste candidates and general category candidates. However, this information brochure states that extra weightage of 1.65% marks shall be given to scheduled caste and scheduled tribe candidates. For the first time in the month of January, 1991, qualifying marks of 50% for general category candidates and 40% marks for scheduled caste and scheduled tribe candidates with additional weightage of 1.65% of
marks was introduced as a condition for eligibility to secure admission in post-graduate and diploma courses.
5. The petitioner is said to have appeared in the entrance examination and has given his choice for M. S. Gynaecology and Obstetrics. He has secured 45.6% marks in the said examination. As against seven seats in M.S. Gynaecology, only five seals have been filled up and two seats are lying vacant. One of the candidates namely Dr. Harsh Lata Piplani (S.C.) has secured less than 50% marks but she has been seleaed for admission to the said course. She is shown to have secured 47.77% marks including additional weightage of 1.65% of marks.
6. From the perusal of the list, it appears that the candidates belonging to scheduled caste and scheduled tribe have been selected with a very low percentage of marks. The petitioner has been denied admission because he is said to have secured less than 50% marks in the entrance test. Before the introduction of entrance test the merit in the qualifying examination, that is M.B.B.S. examination was the basis for admission to the postgraduate and diploma courses. After the introduction of entrance test there is no valid notification by which it can be said that the State Government has laid down 50% minimum marks to be obtained in the entrance test as a condition for admission to post-graduate and diploma courses. In fact the Supreme Court has observed that in view of dire necessity of medical expert, seats should not be allowed to remain vacant in the postgraduate courses for which teachers are appointed and paid and services of the doctors to the general public are very much needed and observations in Dr. Ambesh Kuniar Singh’s case reported in AIR 1987 SC 400 is relied upon.
7. Two seats are said to be vacant and the petitioner prays that he is entitled to get one seat. The reservation in the post-graduate and diploma courses is favour of scheduled caste and scheduled tribe candidates is challenged by the petitioner on the ground that as the scheduled caste and scheduled tribe candidates were selected for M.B.B.S. course on the basis of reservation, they cannot claim
reservation in the specialised post-graduate course and the reservation will also be against the provision of Art. 51A(j) of the Constitution of India. This article lays down fundamental duty on the citizen with regard to the conduct and living in the society.
8. In Writ Petition No. 2970 of 1991 (Dr. (Km) Renu Agarwal) it is stated that she passed M.B.B.S. examination in 1989 with 65% marks. Thereafter, she did internship from 1-7-89 to 30-6-90 from Swaroop Rani Nehru Hospital, Allahabad. Thereafter, she was registered with State Medical Council Uttar Pradesh, Lucknow, The admission in the medicial college in the State of U.P. were done strictly on the basis of the merits obtained by the candidates in the M.B.B.S. course but after the introduction of residency scheme entrance examination was introduced for admission to post-graduate and diploma courses. The petitioner also appeared in the entrance test on 30-9-90 conducted for admission to post-graduate and diploma courses by the Lucknow University. The petitioner had also given her choice for admission in M.B. Gynaecology in Obstetrics course and her second choice is in Opthalmology. The petitioner is said to have secured 49.11 % marks. In Gynaecology three seats are lying vacant and in Opthalmology also three seats are lying vacant. The petitioner is an internal candidate and seeks admission against 75% seats reserved for internal candidates. The petitioner has not been given admission because she has not obtained 50% marks in the entrance examination. She also challenges the criteria which lays down that the candidate should obtain 50% marks for being eligible to seek admission in post-graduate and diploma course and also challenges the provision for scheduled caste and scheduled tribe, whereby the candidtes belonging to the said category are required to obtain only 40% marks in the entrance examination for being eligible to get admission and are given 1.65% additional weightage. The observation of the Supreme Court is relied that the seat should not be kept vacant in view of the need of the people to have medical facilities and in view of the fact that the professor are being paid from the State exchequer for imparting training to the doctors.
9. In their counter-affidavit the respondents have stated that the petitioners have not qualified in the entrance examination, therefore, they are not entitled to any relief. It is stated that the admissions regarding the said session of 1990 were challenged in Writ Petn. No. 1114 of 1990 Dr. Ajay Kumar Agarwal v. State of U.P. which matter is said to have been finally decided by the Supreme Court vide its judgment dated 16-11-90 (reported in AIR 1991 SC 498). The Supreme Court has upheld the provision about 50% marks being required for admission to the post-graduate and diploma courses. The Supreme Court also directed that two lists be prepared for general category candidates.
10. In the first list those candidates who have had the requisite qualification i.e. who had become degree-holder on or before 2-5-90 and have been selected for admission will be kept in Category ‘A’. Admission to them shall be given first with their preferred speciality.
11. In the second list those candidates will be figured who had not completed their internship by 2-5-90 and had in the meantime completed or going to complete the same by 31-12-90 and had been found qualified for admission in the selection examination shall be put into the second list and on the basis of availability of seats as also the preference given by them for speciality on comparative merit basis shall thereafter, be admitted. Accordingly two lits were prepared on the basis of the direction of the Supreme Court. The petitioners’name, subject to their obtaining 50% marks in the entrance examination, would be included in the list ‘B’ because they completed their internship after 2-5-90. It is stated that the admission is given to various discipline in accordance with merit and choice of the candidates. Four candidates mentioned in para 19 of the v/rit petition were given admission. They obtained requisite percentage of marks and were qualified for admission to the post-graduate course. The petitioners got low marks in the competitive examination, therefore, they could not be admitted. It is stated that six seats were available in the discipline of Gynaecology and Obslretics in the institution to which Anupam Gupta
belongs. Out of six seats, five seats were meant for internal candidates which were to be filled up on the basis of competitive examination. There is no vacant seat available.
12. A copy of the judgment of the Supreme Court dated 16-11-1990 (reported in AIR 1991 C 498) is annexed to the counter-affidavit. The condition of 50% marks to be obtained for being eligible to seek admission in post-graduate and diploma course was introduced by the Government order. The State Government is said to be empowered to regulate the admission in pursuance of the residency scheme notified earlier. The State Government is said to be empowered to issue G.O. to supplement the existing rules and regulations. The Supreme Court has ruled that it is in general interest that 50% cut-off as has been adopted to be sustained. It is contended that Dr. Harsh Lata Piplani has not been made party, therefore, her admission cannot be challenged. The assertion of the petitioners to challenge the admission process as also the reservation is strongly controverted.
13. Rejoinder-affidavit is also filed by Dr. Anupam Gupta. He has tried to explain the Supreme Court judgment and reasserted the facts which are stated by him in the writ petition and has given list of teachers available as guides for the post-graduate course in the speciality in which admission was sought.
14. Learned counsel for the petitioners as also the learned Standing Counsel were heard. The pleadings of the parties were considered. Mr. Singhal appearing for the petitioners has formulated the following points for consideration of the Court :–
1) That there is no rule framed u/ S. 28(5) of the U.P. State Universities Act which would create bar for general class category and make relaxation in respect of schedule caste and schedule tribe candidates in respect of admission procedure to the post-graduate and diploma courses.
2) On the principle of promissory estoppel the bar created in respect of admission
procedure for general class category canot be given effect to.
3) Any reservation which provides that a general category candidate should get 50% marks and candidates belonging to scheduled caste and scheduled tribe should get 40% for admission to post-graduate and diploma courses is arbitrary, unconstitutional and void because they are violative of directive principles of the State policy, because they are against the recommendation of Medical Council of India and because in the previous years there was no reservation for scheduled caste and scheduled tribe candidates for postgraduate and diploma courses. The candidates belonging to the reserved category of scheduled caste and scheduled tribe had availed of the benefit of reservation when they were admitted in M.B.B.S. course. They cannot be given benefit on the basis of the reservation in the post-graduate and diploma courses.
15. Mr. Singhal has also stated that observations of the Supreme Court in its judgment dated 16-11-90 (reported in AIR 1991 SC 498) are obiter dicta. There is no provision of Rule, whereby 50% marks were to be obtained by the candidates of general class category to make them eligible to seek admission in the post-graduate and diploma courses which rule was directed by the Supreme Court to be sustained. The Supreme Court’s judgment also does not say anything about the filling of the vacant vacancy.
16. The learned Standing Counsel has relied on the judgment dated 16-11-90 (reported in AlR 1991 SC 498), copy whereof is placed with the counter. The judgment deals with many aspects of the matter. The following observations in the judgment was termed as obiter dicta by learned counsel for the petitioner (at p. 502 of AIR) :–
“It is not disputed that in Uttar Pradesh the prevailing practice was a 50% base for allowing Post-Gradute .Study to doctors with MMBS qualifications but taking their University examination as the base without any separate selection text, it is not the case of any of the parties before us that the selection is bad for any other reason. We are of the
view that it is in genefal interest that the 50% cut-off base as has been adopted should be sustained.”
17. Therefore, it is necessary to see the effect of the observation reproduced above. What is the effect of obiter dicta was discussed in Commr. of Income-tax, Hyderabad, Deccan v. M/s. Vazir Sultan and Sons reported in AIR 1959 SC 814. It was held that obiter dicta of the Supreme Court are entitled to considerable weight. In Moti Ram Deka v. General Manager, North East Frontier Raiiway, reported in AIR 1964 SC 600 it was held that observations in the judgment of the Supreme Court which are in the nature of obiter dicta cannot be relied upon solelf for the purpose of showing that certain statutory Rules should be held to be valid as a result of the said observations.
18. The observations made by the Supreme Court are to be judged in the context of the Government Order in which criteria for obtaining 50% marks for general category candidates and 40% marks for schedule caste and schedule tribe candidate is provided. The G.O. seems to be only supplement to existing rules and the State Government is empowered to existing instructions which are not inconsistent with the existing Rules or which do not have the effect of destroying the existing Rules.
19. There is inherent power vested in the
State to lay down the criteria for an admission to any course which the State has to manage if the said criteria does not violate the Rules already in existence u/S. 28(5) of the Universities Act. It empowers the State Government to regulate by such orders as to Government, may make by notification, the admission in Medical and Engineering colleges and to the courses in the institutions of Agriculture, Ayurvedic and Unani Medical, including the number of students to be admitted. The present G.O. which lays down eligibility criteria for general category candidates and the scheduled caste and scheduled tribe candi-dates for admission to post-graduate course on the basis of percentage of marks does not in any manner violate the provisions of S. 28(5). If a regulation is framed u/S. 28(5)
the said regulation can be supplemented, without destroying or nullifying its effect by the Government order. The State Govrnment will be deemed to be empowered to make instructions to supplement the existing rules and make any addition to the existing rules which do not offend or tend to offend the said rules. The plenary power of the State Government to issue Government order in all matters on which it can legislate, cannot be denied to the State Government. However, there are limitations for the Government to issue the order. By a Government order it cannot take away a right which is available to a candidate or it cannot make the scheme for admission redundant or it cannot cause fundamental change in the existing law which could affect the candidate in pursuing their studies or things like that but its power to make addition to render the system of competitive examination more effective and vibrant cannot be said to be violative of its power or violative of any provision which empowers the State to make Rules or Regulation.
20. The competitive entrance examination is not a type of examination which is conducted by the University for awarding degrees and certificates. It is an examination in which inter se merits of a candidate is to be judged by applying the method of process of elimination so as to select best amongst the lot for the course or speciality. The talented students come up in the examination and the inferiors are reverted to back position. Amongst talented also only those are eligible for selection who occupy higher place having regard to the number of seats available. It is not, therefore, possible that in such examination percentage to pass the examination can (cannot?) be fixed. The candidate who is desirous to seek admission has to steal a march in order to render himself eligible for admission to the post-graduate course. Merely because a candidate passes an examination will not be enough because if all the candidates pass they cannot be adjusted in a course which has a limited number of seats. So obtaining a mere pass percentage will not help a candidate in getting the admission unless he excels the others.
21. If the State Government has provided that students with 50% marks in the entrance test will be eligible for consideration for admission to the post-graduate course, that cannot be said to be bad merely because such a practice was not there in previous year. In the previous year selection was made invariably on the basis of the merit obtained by thej candidates in their M.B.B.S. examination. After the introduction of the residency scheme entrance test was provided to enlarge! the zone of competition and select talented candidates amongst the lot. The State Government, therefore, could issue such instruction and the Supreme Court has upheld the instructions laying down, 50% marks to be obtained in the competitive test for being eligible to seek admission to post-graduate course and this criteria cannot be said to be bad as it does not offend any of the rights of the petitioner. Moreover, the petitioner has appeared in the competitive test. He cannot now say that the criteria of 50% marks is bad. Therefore, viewed in this background, the observations of the Supreme Court in its judgment dated 16-11-90 (reported in AIR 1991 SC 498) cannot be overlooked by this Court even if those observations are considered to be obiter dicta because they are entitled to considerable weight. The observations of the Supreme Court in the said judgment plus the discussion on the authority of the State Government to issue the G.O. providing 50% cut off base for admission to post-graduate course would be complete answer to the points raised by Mr. Singhal and his contention which he raised against the criteria of 50% cut off base. It is not possible for this Court to consider the argument about the reservation in respect of the candidates belonging to scheduled caste and scheduled tribe. The Constitution has itself made a provision in respect of scheduled caste and scheduled tribe in the matter of employment and education and for which course such reservation is to be provided is to be considered by the State Government.
22. Article 15(4) of the Constitution of Indian authorities the State to make special provision for the advancement of socially and educationally backward classes of the citizens
or for the scheduled caste and scheduled tribe. Art. 15(4), therefore, is an exception to Art. 15(4) which prohibits discrimination on the ground of religion, race, caste, sex, place of birth or any of them. The State Government has power to make reservation for advancement of backward classes of citizens and for scheduled caste and scheduled tribe. Therefore, the reservation made in favour of the scheduled caste and scheduled tribe is not violative of any constitutional provision. The reservation made On the circular which is assailed by Mr. Singhal, in favour of scheduled caste and scheduled tribe candidates cannot, therefore, be held to be bad or against the constitution.
23. In Ambesh Kumar’s case AIR 1987 SC 400 (supra) the Supreme Court made the following observations (at p. 405 of AIR) :
“In the instant case the number of seats for admission to various post-graduate courses both degree and diploma in Medical College is limited and a large number of candidates undoubtedly apply for admission to these courses of study. In such circumstance the impugned order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the said courses on the basis of merit as specified by Regulations made under the Indian Medical Council Act cannot be said to be in conflict with the said Regulations or in any way repugnant to the said Regulations. It does not in any way encroach upon the standards prescribed by the said Regulations. On the other hand by laying down a further qualification of eligibility it promotes and furthers the standard in an institution.
The Government who runs these colleges has the right to prescribe a test of eligibility as has been held by this Court in the case referred to above.”
24. It is, thus, seen that laying down the qualification for a candidate to be eligible for being considered for selection for admission to post-graduate course on the basis of merit as specified in the notification cannot be said to be in conflict with any Regulation or law which has bearing on the subject. If some
weightage is fixed for scheduled caste and scheduled tribe candidates and if any difference is made between the candidates belonging to general category and the candidates belonging to scheduled caste and scheduled tribe in the matter of grant of admission to the post-graduate or diploma course in the Medical College, that seems to be permissible and is not violative of any constitutional provision.
25. Challenge thrown to the admission of Dr. Harsh Lata Piplani is not well founded because the said candidate belongs to scheduled caste category and she was eligible for admission with 40% mat ks as specified in the notification. The petitioner cannot claim equality with her. Law permits classification and such classification, in order to be rendered valid, must have nexus with the object which is sought to be achieved and must be supported by the statute. For the advancement of education of schedule caste and schedule tribe candidates if some concession is granted by notification that cannot be said to be bad. Moreover, the said Dr. Piplani is not a party to the writ petition, therefore, her selection cannot be set at naught.
26. The points raised by Mr. Singhal, therefore, are devoid of merit and on the basis of the material brought before the Court, it cannot be held that eligibility criteria for seeking admission to the post-graduate and diploma courses in the Medical Colleges as specified in the notification was in any manner bad or against the Constitution. However, the matter does not rest here.
27. In Dr. Ambesh Kumar’s case AIR 1987 SC 400 (supra) the Supreme Court has observed’ that number of seats were kept vacant as the applicants in that case did not fulfil the eligibility qualification framed by the State Government and as a result several Professors and Assistant Professors who were meant for imparting teaching in the disciplines were kept idle though a considerable fund had to be expended for meeting their emoluments. Therefore, it was left to the State to consider and see that the seats are filled up in all the disciplines and they are not left vacant in spite of a large number of applicants applying for admission in various disciplines
and the State Government was directed to evolve such criterion of eligibility that all the seats in different M.D., M.S. degree and diploma courses are filled up. In the present case it is contended by the petitioner that one seat in post-graduate course is available in the speciality of Gynaecology and Obstetrics in the S.N. Medical College, Agra. It is better to adjust the petitioner against that seat notwithstanding the fact that he does not fulfil the eligibility qualification, than to keep the seat vacant because teachers to guide the postgraduate students in the said speciality are available in the said Medical College and they are being paid emoluments by the State Government. Therefore, it is directed that Dr. Anupam Gupta (Writ Petition No. 3839 of 1991) shall be admitted in the post-graduate course of Gynaecology in Obstetrics in the S. N. Medical College, Agra against the vacant seat and the vacant seat shall be filled up by granting him admission for the current session.
28. In Dr. (Km) Renu Agarwal (Writ Petition No. 2970 of 1991) the seats are available in Gynaecology and Obstetrics and in Opthamology post-graduate courses. Therefore, the respondents are directed to admit the petitioner in the post-graduate course in Gynaecology and Obstetrics for the current session notwithstanding the fact that she does not fulfil the eligibility qualification as laid down in the notification.
29. If the petitioner opts for the speciality of Opthomology, she may be admitted in the degree course of Opthomology against the vacant seat. However, the respondents are directed to obtain the option from the petitioner and thereafter admit her according to her preference in the post-graduate course of Gynaecology and Obstetrics or Opthomology as the case may be for the current session.
30. In this case it was proved that the seats were vacant and the State Government has not laid down any criteria for filling up the vacant seats though the teachers were available and were paid from the State exchequer for imparting education in post-graduate and diploma course in the two Medical Colleges. In respect of vacant seats, the Supreme Court
has desired that the State Government should evolve the procedure for filling up those seats if eligible candidates, as specified in the case of Ambesh Kumar, were not available and the seats should not be allowed to remain vacant in the post-graduate courses. Despite that direction, the State Government does not seem to have laid down any instruction in consonance with the directive of the Supreme Court. Therefore, the State Government is directed to act on the direction of the Supreme Court in Dr. Ambesh Kumar’s case, AIR 1987 SC 400 (supra) in respect of filling up of the vacant seats by those candidates who do not fulfil eligibility qualification as determined by the notification issued by the Government for grant of admission to such courses. The Government has committed considerable delay in evolving the procedure. Therefore, this Court cannot wait indefinitely for the Government to evolve the procedure as directed by the Supreme Court. In suitable case, where the seats are vacant the petitioners can be adjusted against the vacant seats notwithstanding the criteria of eligibility qualification fixed in the notification.
31. It was thought in the interest of justice that the vacant seats should be filled up by granting admission to the petitioners in two writ petitions. Therefore, a direction is being given to the respondents to admit the two petitioners in the respective post-graduate courses.
32. Subject to the directions given herein-above this Court is constrained to reject the other submissions of the learned counsel for the petitioners.
33. The writ petitions are accordingly
disposed of finally. There will be no order is to
costs.
34. Order accordingly.