ORDER
1. The learned Counsel for the petitioners filed a memo seeking leave to withdraw his vakalat. With the leave of the Court, the second petitioner has argued the matter personally.
2. In this writ petition the petitioners assail the action of the first respondent, the Nizams Institute of Medical Sciences, Hyderabad, (“NIMS” for short) in treating both the scats in M.D. (R.D.)/D.M. R.D. available to Osmania University area as reserved seats and giving admission to respondents 3 and 4 herein as being arbitrary and illegal and consequently to direct the first and second respondent-authorities to give admission to one of the petitioners herein into the said course/courses by treating one of the said seats as an open seat. It is not in dispute that the total number of seats available in M.D.(R.D.) course are two and the seats available in D.M. R.D. course are four in NIMS which is a State-wide institution. Thus the total number of seats for both the courses which are treated as a single unit for the purpose of admissions is six. Out of the six
available scats, one scat has to be set apart for the unreserved category. Out of the remaining five seats as per the Presidential Order dated 1-7-1974, two seats are available to Andhra University area, two scats to Osmania University area and one seat is available to the S.V. University area. In the instant case we are concerned with the two scats which arc available to the Osmania University area. Out of the two seats, which are available to the Osmania University area, one is in MD RD course whereas the other is in DM RD course. The seat in MD RD is given to the third respondent who belongs to the BC category. The seat in DM RD is given to the 4th respondent who also belongs to the BC category. As the 4th respondent did not join, the same was given to another candidate belonging to the BC category. Thus both the scats are given to candidates belonging to the reserved category only. The petitioners challenge the allotment of both the seats to the reserved category as being contrary to the Full Bench judgment of this Court in D. Rajesh Babu v. NIMS’, and the instructions contained in GO. Ms. No. 114, Health Medical and Family Welfare (E2) Department dated 25-4-1998 issued by the Government pursuant to the directions given by die Full Bench. In the said Full Bench judgment, it was held that the area reservation made under the Presidential Order issued under Article 371-D of the Constitution prevails over the general provision for class reservation envisaged under Articles 15(4) or 16(4) of the Constitution of India and that the roster for class reservation has to be confined to the area for which reservation is provided under the Presidential Order. It was also held that independent roster is necessary for class reservation in each area. The class reservation made in favour of candidates belonging to SCs., STs., and BCs., is in the ratio of 15%:6%:25%:. The total is 46%. Thus only one of the two seats available in the Osmania University can be reserved in favour of the candidates belonging to SCs., STs., and BCs. It is not in dispute that the
first petitioner obtained a total of 131 marks and the second petitioner obtained 125 marks whereas Respondent No.3 got 123 marks and Respondent No.4 got 122 marks only. The petitioners are not seriously disputing the selection of the third respondent for the seat in MDRD. The remaining scat in DMRD alone falls for consideration.
3. Having regard to the categorical pronouncement of the Full Bench and also the guidelines issued in G.O. Ms. No. 114, the allotment of this seat in DM RD to Respondent No.4 under the reserved category is clearly unjustified. The said seat has to be treated as being open to all. If so, the petitioners, who have secured higher marks than the 4th respondent, are clearly entitled for consideration for allotment of the said seat in preference to the 4th respondent.
4. In the counter-affidavit filed on behalf of the first respondent, the selection of the 4th respondent for the said seat is, however, sought to be justified by stating the the Rules of Admission to Post-Graduatc Medical Courses in NIMS were issued before the pronouncement of the Full Bench judgment referred to above and that under the said Rules, out of the total number of six seats, one seat MD RD is earmarked for BC, whereas two scats in DM RD are earmarked for SC and BC respectively and three seats are left unreserved making them available to the merited candidates, that under the impression that there can be no dispute about the admission to the two seats in MD RD both the seats were filled in the first instance by giving one to OC and the other to the third respondent who was the topper amongst the reserved categories and subsequently in the light of the directions given by the High Court and the guidelines contained in GO. Ms. No.114, dated 25-4-1998, the admissions in respect of the unfilled four seats in DM RD were made on 9-5-1998. In the counter-affidavit a tabular statement giving details of the admissions made to the four scats in DM RD is furnished which is as follows:
Sl. No.
Name of the Candidate
Marks secured
Local area
Reserved category
1.
Dr. Bhaskara
Narayana, K.
128
SVU
O.C.
2.
Dr. J. Venugopal
122
Du
B.C.
3.
Dr. Sivarama Krishna. K.
119
AU
D.C.
4.
Dr. Sachivendra, M.
99
AU
S.C.
5. It is manifest from the above that the first respondent has followed a single roster for the purpose of making admissions to the six seats in the three regions put together. This is clearly in violation of the judgment of the Full Bench in supra) and also the instructions contained in G.O. Ms. No. 114 according to which an independent roster is necessary for class reservation for each area. Thus the allotment of both the seats available in Osmania University area to the reserved category is patently illegal and unsustainable. Only one seat can be reserved for SCs., STs., and BCs. and the other has to be left for open competition. It is pertinent to note in this context that in the Andhra. University region only one seat was allotted to an SC candidate and the other seat was rightly given to OC candidate.
6. For the aforesaid reasons I have no hesitation to hold that the allotment of the seat in DMRD to the 4th respondent under the reserved category is illegal. The said seat should be treated as unreserved open to all candidates and as such the first petitioner, who secured 131 marks, is entitled for the said seat. It is however, stated that the first petitioner has already secured admission in MD (Paediatrics) in another institute. In case the first petitioner is not interested in accepting this scat, the case of the second petitioner may be considered for allotment of the said seat. However, displacing the 4th respondent at this stage may result in undue hardship to the 4th respondent who cannot be blamed or penalised for the mistake committed by the first respondent. Under these circumstances, I feel that the ends of justice will be met by directing
the respondents to create an additional seat in DMRD for accommodating one of the petitioners as directed above. If the creation of an additional seat is not possible or feasible, there will be no other alternative but to give the 4th respondent’s seat to one of the petitioners herein. The above exercise should be completed as expeditiously as possible preferably within one month from the date of receipt of this order.
7. The writ petition is accordingly disposed of. There will be no order as to costs.