JUDGMENT
B.N. Deshmukh, J.
1. These two petitions raise points of interest and importance regarding admission to First Year M.B.B.S. Course.
2. Both the petitioners, after passing XIIth Standard examination, have applied for admission to First Year M.B.B.S. Course. They belong to V.J.N.T. category. A common merit list of V.J.N.T. category only is produced at Ex. E. Shri Lande (petitioner in Writ Petition No. 2375 of 1992) is at Sr. No. 10 while Miss Pawar (petitioner in Writ Petition No. 2186 of 1992), is at Sr. No. 16.
3. The candidates at Sr. Nos. 2 to 8, excluding at Sr. No. 3, are admitted to the First Year M.B.B.S. Course in the reserved category meant for V.J.N.T. There is one more candidate belonging to Banjara Community who is admitted in this catagory as per the directions of this Court.
4. The contentions raised in the petition with regard to admission relate to the denial of admission to the petitioners as, according to the petitioners, the candidates at Sr. Nos. 2 to 8, excluding at Sr. No. 3, should have been admitted in open category on the basis of their merit alone. Instead of that admission is given to these candidates in the reserved category of V.J.N.T. and, because of this, the petitioners could not get admission to the M.B.B.S. Course.
5. The main challange for denial of admission to the petitioners is based on the provision of the rules framed for admission to M.B.B.S. Course for the year 1992-1993. Rule 8(i), which is relevant for our purposes, provides as follows:
“The 24 per cent seats reserved for candidates belonging to the three categories of backward classes, i.e., (i) Scheduled Castes and Scheduled Castes converts to Buddhism; (ii) Scheduled Tribes including those living outside specified areas; and (iii) Denotified Tribes and Nomadic Tribes, shall be exclusive of the number of students belonging to these three categories who secure admission on merit provided that the total number of candidates of these three categories of “Backward Classes” who secure admission against the 24 per cent reserved quota and on merit does not exceed 40 per cent of the total number of seats available for admission……”
5. The learned Counsel for the petitioners contend that the petitioners are not admitted because the authorities have failed to implement the rule properly. The provision regarding exclusion of the number of seats belonging to these three categories who secure admission on merit is totally ignored while considering the claims of the reserved category candidates.
6. The case in short is that the 24% of reservation in favour of SCs, STs, VJNTs taken together should have been considered after exclusion of meritorious students who could be granted admission on the basis of their merit alone in open category. Instead of following the rule, the authorities have admitted the candidates at Sr. Nos. 2, 4 to 8 as against reserved seats though they were entitled to be admitted against the open merit seats and after admission of these candidates in open merit, the authorities should have proceeded to consider the claim of other candidates as against reserved seats in all the three categories.
7. The petitioners, therefore, contend that if the rule of admission regarding reserved categories would have been properly followed, the petitioners in both the petitions would have been admitted in the seats meant for a reserved category of V.J.N.T.
8. The learned Assistant Government Pleader Shri V.B. Ghatge appearing for the State, however, contended that the above candidates at Sr. Nos. 2 to 8 (excluding at Sr. No. 3) are admitted as against reserved category though they could have been admitted in open category as they have opted for admission in the reserved category. Such option became necessary having regard to the provision regarding the post graduate admissions and, secondly, in view of the fact that the reserved seats which are required to be filled in at Aurangabad and Ambejogai Colleges would not have been made available to them and they would have been required to be admitted at Nanded college which is not recognised by the Medical Council of India.
The argument regarding the option is based on the fact that the post graduation rules, which are in operation for the present, enable that a candidate admitted only as against a reserved seat at the time of First Year M.B.B.S. Course alone can claim reservation at the time of post graduate admission. A candidate, though belonging to reserved caste, but admitted as against open seat, is not entitled to be considered for admission as against a reserved seat at the time of post graduate admission. Secondly, the college at Nanded is not recognised by the Medical Council of India and, as such, the present rules provide that the students passing First Year M.B.B.S. course from such colleges are not eligible to be transferred to other medical colleges in Second Year M.B.B.S. Courses; apart from that, such students are neither eligible to appear for All India Entrance Examination for admission to post graduate courses nor are eligible to admission to post graduate courses in Government Medical Colleges in Maharashtra. Because of these future inabilities, the reserved caste candidates appearing in open merit prefer to get admission in the reserved quota to meet out the future disabilities which they are likely to face.
9. In this controversy, reliance is placed on a decision of Larger Bench of this Court in Sunanda v. State, 81 Bom.L.R. 149. The matter of filling in the reserved category seats came up for consideration in that case. Reference is also made to the reports of the Cabinet Sub Committee for considering the question of reserved category candidates, either exclusive or inclusive of the candidates belonging to that category from the open merit.
The Larger Bench has made a clear-cut distinction between the backward classes belonging to SCs, STs and VJNTs on the one hand and the candidates belonging to OBCs on the other hand. In case of candidates belonging to the group of SCs, STs and VJNTs, it is held, “while granting admission, the admission of students belonging to this category in the reserved quota shall be considered exclusive of the candidates appearing in the open merit”. So far as the candidates belonging to OBCs are concerned, it is held, “the admission should be governed in the reserved quota in this class of candidates on the basis of principle of inclusiveness. That the figure of 10% is to be arrived at after including the candidates in this category who could be admitted in the open category”.
10. In fact the present rule itself takes care of the ratio laid down by the Larger Bench in Sunanda’s case inasmuch as it provides that the 24% seats reserved for candidates belonging to the three categories of backward classes; (i) Scheduled Castes and Scheduled Castes converts to Buddhism; (ii) Scheduled Tribes, including those living outside specified areas; and (iii) Denotified Tribes and Nomadic Tribes shall be exclusive of the number of seats belonging to these three categories who secure admission on merit provided that the total number of candidates of these three categories of backward classes who secure admission against 24% reserved quota and on merit does not exceed 40% of the total number of seats available for admission. The outer limit of 40% is maintained because there is also another reservation to the extent of 10% in favour of OBC candidates.
11. If we consider the reservation in all these categories, care is taken to see that the reservation does not exceed more than 50% in a particular year in accordance with the ratio laid down by the Supreme Court, which can be gathered from the decisions in (i) M.R. Balaji v. State of Mysore, , (ii) T. Devadasan v. Union of India, , (iii) State of Keral v. N.M. Thomas, . In this regard reference can be made to the recent decision of the Supreme Court in Indra Sawhney v. Union of India, 1992 S.C.C. (L & S) Supp.1, wherein it is observed that less than 50% shall be the rule, barring certain extraordinary situations inherent in the great diversity of this country and the people.
12. In this connection, our attention was also invited to the decision of the Division Bench in Rupali v. State, 1990 Mh.L.J. 615, wherein it is held that the 10% reservation prescribed for the category of OBCs is inclusive of the candidates from the reserved category who secure admission on open merit basis. It is only to the extent of shortfall below 10% that the admission are given in the reserved category of OBCs.
13. Shri Ghatge has placed reliance upon the decision of the Division Bench of this Court in Sanjay v. State, 1990 Mh.L.J. 115. In this case the Court, while considering registration to the post graduate courses, made a passing reference to the rules regarding admission to the First Year M.B.B.S. Course. The rules of admissions for the First Year M.B.B.S. Course were not directly at issue but reliance is placed on the decision of the Larger Bench in Sunanda’s case. While considering the admissions in the reserved quota at the post graduation level, it was observed that the candidates admitted in open merit, though belonging to reserved category, was expected to maintain the efficiency and standard of open merit. The deficiency having been disappeared initially at the time of admission to First Year M.B.B.S. Course need not be considered as re-appearing at the time of post graduate admissions. Therefore, the relevant rule regarding post graduate registration with regard to non-availability of a reserved seat to a reserved category candidate, initially admitted as against open merit, was found to be valid.
14. While deciding Sanjay’s case, the Division Bench of this Court was not considering and was not called upon to decide exclusiveness or inclusiveness of the candidates appearing in the merit list and from which category. The Division Bench was also not concerned with the rules regarding admission to First Year M.B.B.S Course. Apart from that, the view of the Larger Bench consisting of five Judges in Sunanda’s case is actually relied upon. Further, we have no doubt that the rules of admission framed by the State Government with regard to SC, ST and VJNT candidates, excluding the open merit candidates in that category, for reserved seats, is in accordance with the ratio laid down by this Court in Sunanda’s case.
15. We have, therefore, no doubt that an error is committed while granting admission to the candidates at Sr. Nos. 2, 3 to 8, as per the list Exh. E, because these candidates should have been admitted as against open seat. If these candidates would have been admitted in the open seats, then the candidates below them could have been considered for reserved seats but the authorities have admitted these candidates against reserved seats. quite contrary to the ratio laid down by this Court in Sunanda’s case as well as in violation of the rules of admission to the First Year M.B.B.S. Courses framed by the Government for the particular year.
16. Shri Ghatge thereafter contended that inspite of the rule framed in accordance with the ratio laid down in Sunanda’s case, the admissions are required to be finalised in accordance with the option given by the candidates belonging to SCs. If such an option is not allowed to be exercised, a hurdle would have been created in the way of those candidates while getting admission to post graduation courses thereafter. The candidates, though belonging to the reserved category but admitted in open merit, will be facing hardship inasmuch as they will be denied admission to the reserved category at the time of admission to post graduation.
17. We are unable to appreciate this contention. Firstly, if such an option is allowed to be exercised, the availability of seats upto 40% is practically taken away or is reduced to a considerable extent. In such an event, the reservation will be brought down to 24% only and could never go up upto 40% permissible under the rules. If such meritorious candidates are allowed to take admission in a reserved seat, that really deprives the other candidates from the reserved category to be admitted upto 40% of the available seats. Such option would run counter not only to the rule of admission but even to the ratio laid down by the Larger Bench in Sunanda’s case. 16% of the seats which would have gone to the reserved category candidates are just snatched away from them because such an option is allowed to be exercised by the meritorious candidates.
18. The option is also tried to be spelt out on the basis of requirement of the form for admission as per column No. 23 of the said form, where the candidates are required to state as to whether they claim reserved seats of the following categories, namely, SCs, STs and VJNTs. Merely because a candidate is required to disclose in the form as to which category he belongs to, it cannot be said that any option is showered on him by virtue of such disclosure in the form. The rights of the admission are reiterated by the rules and cannot be deemed to be based on some information required to be disclosed in the form. Such an interpretation, on the basis of information to be supplied in the form, runs counter to the specific rule which governs the admissions in the reserved category, ranging upto 40%. There is no nexus between the admission of a candidate either to open category or in a reserved category and disclosure of the caste as per column 23.
19. The second argument which was advanced in favour of option is based on the provisions of the rules for admission for the year 1992-1993. The rules provide for indicating the preferences for admission to any of the medical colleges out of 11 government medical colleges in the State. In the application form, the candidate is required to mention his preferences regarding the college to which he desires to be admitted. This preference cannot be considered as providing for option for admission to the medical courses. Admission to a particular college ultimately is decided on the basis of merit and the decision is accordingly taken by the authorities. The preference is required to be considered after the candidates are admitted to the course. This preference cannot be equated with the option allowed to be exercised by a candidate at the time of admission. The question of preference comes for consideration after the admission and not before.
20. Shri Ghatge has argued on the basis of another hardship also which is likely to be faced by the candidates belonging to reserved caste but admitted against open merit on the basis of non-recognition of college at Nanded. As per the rule, the candidates from reserved category admitted at the First Year M.B.B.S. Course on the basis of merit will not be eligible to seek transfer to the other Government Medical Colleges in the Second Year M.B.B.S. Course and they are further informed by the rules that they are neither eligible to appear for All India Entrance Examination for admission to Post Graduation courses nor and are not eligible for admission to post graduation courses in Government Medical Colleges in Maharashtra. This is so probably because the Indian Medical Council has not recognised as yet the college at Nanded. The matter of recognition is still pending with the Indian Medical Council.
21. The argument on this ground seems to be based on the fallacious assumption – as if the meritorious candidates admitted in open seat belonging to reserved caste cannot be admitted to a reserved seat in Aurangabad and Ambejogai colleges and, therefore, were necessarily required to be admitted at Nanded. Once the admissions are finalised then, on the basis of merit and preferences and having regard to the availability of rural seats in respective colleges, the admissions are granted to the candidates as per the merit amongst the reserved caste candidates irrespective of whether admitted in open merit or as against a reserved seat.
22. There is nothing in the rules which can be said to prohibit to admit a candidate belonging to a reserved category on the basis of open merit as against a reserved seat provided in the colleges at Aurangabad or Ambejogai. After finalisation of the admissions it would be open for the authorities to consider the merit of the reserved candidates admitted as against open merit as well as against reserved seats together and after adjusting the preferences of the candidates they can be admitted to Aurangabad or Ambejogai college also. This is in fact internal arrangement which is required to be made by the authorities after finalisation of the admissions. There is no substance in this contention also.
23. We may make it clear that in fact in these petitione we are not concerned with post graduate admissions – at the same time we cannot presume at this stage that the rules regarding the post graduation admission will remain the same or will change. At any rate, the present rules for admission to First Year M.B.B.S. Course cannot be interpreted on the basis of rules of admission for post graduation – the event thereafter depending on several factors.
24. Having come to the conclusion that the admission to the reserved seat should have been granted in this category, after exclusion of the candidates appearing in the open merit, we are required to consider whether both the petitioners are entitled to get admission to the First Year M.B.B.S. Course on the basis of the record produced before us.
25. We are told at the Bar and from the record made available to us, it can be gathered that in that year five VJNT category candidates and 2 SC candidates are admitted as against reserved seats though they could have been admitted on the basis of open merit. If these candidates would have been admitted in open merit then the remaining seats upto 40% would have been available to these three reserved category candidates taken together. We are also told that not only 40% of the seats are not filled in from these categories but even 4% reservation of VJNT category is not maintained, apart from the candidates appearing in the open merit.
26. In these petitions we are concerned with VJNT candidates. As per the record, there is no doubt, that the petitioner in Writ Petition No. 2375 of 1992, namely, Ganesh Kishanrao Lande would have been admitted as against reserved seat meant for VJNT in the quota of 4% as there is only one candidate above this petitioner in the category of VJNT who could also have been admitted along with the petitioner. There is no reason, therefore, as to why petitioner Ganesh Kishanrao Lande should not be granted admission to the First Year M.B.B.S. Course, as admitting Ganesh Kishanrao Lande does not take away the seat of any meritorious candidate.
27. So far as Meena Pawar, petitioner in Writ Petition No. 2186 of 1992 is concerned, we find that inspite of following the rules and inspite of appreciating the rule and giving its full impact, this petitioner would not have been admitted in a reserved seat meant for VJNT, even exceeding the limit of 4%. In these circumstances, we do not see any merit for admitting petitioner Miss Meena Pawar.
28. In the result, we direct the respondent Nos. 1 and 2 to admit Shri Ganesh Kishanrao Lande (petitioner in Writ Petition No. 2375 of 1992) to First Year M.B.B.S. Course in this year even, if necessary, by creating additional seat.
29. Shri Ghatge, learned Assistant Government Pleader, states that the petitioner would be admitted in Nanded college by creating additional seat to which Counsel for the said petitioner has no objection. We direct accordingly.
30. Rule made absolute in Writ Petition No. 2375 of 1992. Rule discharged in Writ Petition No. 2186 of 1992. However, there shall be no order as to costs in both the petitions.