ORDER [ENTITY], J.
1. All these three writ petitions have been heard together and are being disposed of by this judgment as the pivotal question involved in all these matters is the same, namely, whether reservation for SC/ST category is permissible in the West Bengal Government service quota for admission to the various Post-Graduate Medical Degree and Diploma Courses in certain institutions/colleges in West Bengal in 1997.
2. The total number of seats for the various post-graduate medical courses under the University of Calcutta in 1997 is 443. Out of that, 61 seats are allotted to all India quota and the remaining 382 seats are to be filled up by the University of Calcutta inasmuch as admission to 75% of total number of seats in the different postgraduate courses is conducted by the University of Calcutta while admission to the remaining 25% of the seats is open to candidates selected through All India Entrance Examination. Out of the 382 West Bengal seats at the disposal of the Calcutta University for admission, 80 seats are reserved as West Bengal Government quota to be filled up by selection from amongst the candidates in the West Bengal Health Service/West Bengal Medical Education Service (WBHC/WBMES) sponsored by the Government of West Bengal. There is also 22% and 6% reservation for Scheduled Caste and Scheduled Tribe candidates respectively. Both the sponsored candidates under the West Bengal Government service quota and the open category candidates including SC/ST candidates are however required to sit in a common admission test conducted by the University of Calcutta. The basic qualification for all candidates is however MBBS degree and completion of PRCA training or rotating internship for the requisite period after passing the MBBS Examination. In order to be declared as qualified in the admission test a candidate is required to secure a minimum of 400 marks in the written test.
3. Annexure-D to the writ petition in 8943(W)/97 is the 1997 Rules for the admission to different post-graduate medical courses of the University of Calcutta. [SECTION] of the said Rules speaks of merit list of candidates qualifying in the written test. [SECTION] provides that the rank of the candidates qualifying in the written test will be determined on the basis of the marks obtained by them in the said test and the names of the candidates qualifying in the written test will be arranged in the merit list according to rank and in order of decreasing marks. [SECTION] says that the rank of the candidates who have qualified in the written test shall be indicated against their respective roll numbers in a provisional merit list displayed in the notice board. [SECTION] says that there shall be a separate merit list for the scheduled caste/scheduled tribe candidates in addition to the general merit list. [SECTION] relates to counselling for selection of candidates for admission. [SECTION] provides that the admission to different postgraduate Medical Courses will be made through counselling strictly according to rank in the merit list. [SECTION] says that counselling will be continued till the available vacancies are filled up by candidates empanelled in the provisional merit list. [SECTION] says that candidates selected for admission through counselling shall be required to get themselves enrolled immediately on payment of the requisite fees. [SECTION] provides for reservation of seats. [SECTION] indicates the seats for candidates belonging to WBHSA/BMES reserved streamwise, such as, M. D. (General Medicine) 5 seats in W. B. Govt. Quota, M. D. (Obst. & Gynae) 5 seats, etc, etc. [SECTION] says that seats wilt be reserved for SC/ST candidates as per rule. The schedule for admission, 1997 in the Post-Graduate Courses has been given in [SECTION]. [SECTION] lays down the counselling schedule in the following manner.
Monday, 21-4-97
[SECTION]0 candidates (Merit 1-[SECTION]0) Tuesday, 22-4-97
[SECTION]0 candidates (Merit [SECTION]1-300) Wednesday, 23-4-97
200 candidates (Merit 301-500) Thursday, 24-4-97
200 candidates (Merit 501-700) Friday, 25-4-97
(701 - rest of the candidates from the merit list)
4. The petitioners' grievance is that breaking the schedule for counselling, the SC/ST candidates, irrespective of their position in the merit list were given the opportunity of counselling earlier than the scheduled dates (as a matter of fact, on the very first day) as a result of which those candidates got undue priority to choose their subjects for admission thereby unduly depriving the petitioners occupying higher position in the merit list compared to the SC/ST candidates, the choice of the subjects of their liking, and as a result the petitioners were offered subjects which were not to their choice and they were rather constrained in the circumstances to take admission in such left out subjects. It is also the grievance of the petitioners that the reservation for SC/ST candidates in the West Bengal Service Quota (Government Quota, for short) is bad in law because there cannot be any quota within a quota. Although the petitioners have not challenged the reservation policy of the Government in respect of SC/ST candidates in general, their contention is that there cannot be any quota for reservation of SC/ST candidates within the Government quota. In this connection Mr. [ENTITY], the learned Advocate appearing for the petitioners has submitted inter alia that in the matter of higher education in medical sciences at the post-graduate level there should not be any reservation for SC/ ST candidates as that will deprive many meritorious and talented candidates in the general category, of admission to such courses of higher study which itself will be a national loss and will be detrimental to public interest. The learned Advocate for the petitioners has also referred to certain decisions of the Supreme Court and the observations made therein. His argument is that whatever may be the logic and justification for reservation in favour of SC/ST categories of candidates at the lower level of educational courses, such reservation at higher level, namely, at the post-graduate level by sacrificing merit will be an injurious violation of the mandate of the equality clause of the [ACT]. For quick and convenient reference I am reproducing some of the relevant provisions of the [ACT] relating to the mandate of equality.
[SECTION] : the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
[SECTION] The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, (2) (3) Nothing in this Article shall present the State from making any special, provision, for women and children.
(4) Nothing in this article or in [SECTION] shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
It may be mentioned here that the [SECTION] was added by the [ACT] rather as a sequel to the decision of the Supreme Court in [PRECEDENT], .
"[SECTION] There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) & (3) (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State.
(4A) Article 29 (1) (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.'
5. While [SECTION] contains a broad-based provision of equality before law, [SECTION] and [SECTION] are rather illustrative instances of the right to equality which has been stated in general terms of [SECTION]. Of the two [SECTION] and [SECTION] the former, again, is more pervasive while the latter is restricted to the field of public employment. The earlier judicial view that [SECTION] is an exception or proviso to [SECTION] as reflected in the decisions in [ENTITY], , [ENTITY] and [ENTITY] however suffered change in course of time and the judicial view now is that [SECTION] is not an exception to [SECTION] and it is only a emphatic way of putting the extent to which equality of opportunity could be carried, viz. even up to the point of making reservation and that [SECTION] is rather an instance of classification implicit in and permitted by [SECTION] [PRECEDENT] . [ENTITY] v. Union of India, . In [PRECEDENT] (supra) it was held that [SECTION], [SECTION] and [SECTION] form part of a string of constitutionally guaranteed rights which supplement each other and that [SECTION] is an incident of the guarantee of equality contained in [SECTION] and both [SECTION] and [SECTION] permit reasonable classification. In [ENTITY] (supra) it was pointed out that if [SECTION] is treated as an exception to [SECTION] there would be no other classification permissible under [SECTION], and Clause (4) would be deemed to exhaust all the exceptions that can be made to [SECTION] and then no reservation in services in favour of say physically handicapped, Army personnel, freedom fighters, etc. would be permissible and for these very reasons it will have to be said that so far as 'backward classes' are concerned, the reservations for them can only be made under Clause (4) since they have been taken out from the classes for which reservation can be made under [SECTION]. It has been also made clear in [ENTITY] that reservation may be of various forms such as preference, concession, excemption, extra facilities etc. or of an exclusive quota. Evidently the same interpretation is also applicable for determining the relationship between [SECTION] and [SECTION]. The position therefore is clear that while reservation for scheduled caste and scheduled tribe categories in educational institutions can be made under [SECTION], reservation for other categories by way of reasonable classification can also be made under [SECTION]. Such sort of reservation by reasonable and valid classification can be made under [SECTION] apart from the reservation for SC/ST categories under [SECTION]. In fact by such valid classification under [SECTION] a source may be identified carving out certain seats in educational institutions for candidates drawn from such identified source classified under [SECTION], apart from SC/ST categories falling under [SECTION]. The Supreme Court in [PRECEDENT], while striking down reservation of seats in medical colleges for candidates from rural areas upheld in the facts and circumstances, the validity of reservation for candidates from hill areas and Uttrakhand division as falling under the category of socially and educationally backward classes covered by [SECTION]. The Supreme Court also in its decisions in the cases of [PRECEDENT], sustained the constitutional validity of reservation based on the requirement of residence within a State for the purpose of admission to medical colleges. This is a classification falling within the sweep of [SECTION]. As regards the extent of reservation, in M.R. [ENTITY] v. State of Mysore, the Supreme Court held in connection with admission to medical and engineering colleges that the reservation should be less than 50%. This rule of the limit of 50% in the matter of reservation was also reiterated in the decision of the Supreme Court in [ENTITY], .
6. In support of his argument that there should not be any reservation in the post-graduate medical courses the learned Advocate for the petitioners referred to the decision of the Supreme Court in [PRECEDENT], . That was however a case where the question that fall for consideration was whether universitywise distribution of seats in Medical Colleges was violative of [SECTION]. There, apart from reservation of certain seats for different categories of persons, such as, students from Union Territories and States having no medical college, children of defence personnel and political sufferers, etc. and certain percentage of reservation of seats in favour of SC/ST and SEBC (socially and educationally backward classes), universitywise distribution of seats in medical colleges was upheld with provision for not more than 20% allotment of seats in favour of students of other universities within and outside the State. This decision while upholds the universitywise distribution of seats does not prohibit reservation of seats in favour of SC/ST/ SEBC categories of candidates falling under [SECTION]. The question about the nature of reservation made in favour of the different categories of persons such as students from Union Territories and States having no medical college, the children of defence personnel and political sufferers, etc. also felt for consideration and the Supreme Court held in paragraph 23 of the said decision that the Government is entitled to lay down sources from which selection for admission would be made and a provision laying down such sources is strictly speaking not a reservation. It was observed by the Supreme Court in paragraph 22 of the said decision that the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which the admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules, and so long as there is no discrimination within each of such sources the validity of the rules laying down such sources cannot be successfully challenged. In [PRECEDENT] (supra) also the Supreme Court with reference to the seats reserved for Government of India nominees for admission in Medical Colleges followed its earlier decision in [PRECEDENT]'s case (supra) and observed that a provision laying down a source is not a reservation. It is therefore evident that allotment of a quota of seats for candidates to be selected out of service-holders sponsored by the State Government is strictly speaking not a reservation but laying down of source for filling up of those seats. It is rather a classification under [SECTION]. Reservation of seats for SC/ST in Government quota cannot therefore be said to be reservation within reservation. It is rather reservation under [SECTION] within a classified group carved out under [SECTION] and this is precisely what is constitutionally permissible, no matter whether it is called reservation within reservation or reservation within a classified source or group.
7. The learned Advocate for the petitioner referred to the decision of the Supreme Court in [ENTITY] v. Union of India, and attracted my attention inter alia to the observations made in paragraph 20 of the said decision wherein it is stated that it is no blessing to inflict quacks and medical midgets on a people by wholesale sacrifice of talent at the threshold nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation. It may be mentioned here that in the said decision in [ENTITY] the question of reservation in favour of SC/ST did not at all fall for consideration. That was a case in which reservation in post-graduate medical courses in favour of Delhi University students was the pivotal point. The observations made by the Supreme Court in that case will therefore have to be understood in the context of that case. But even then the Supreme Court did not strike down in that case 70% reservation in favour of Delhi University students keeping 30% seats open to all India competition. But the Supreme Court in paragraph 25 of the said decision took care to protect the reservation in favour of backward classes and SC/ST categories in the following language :
"We hasten to keep aloof from reservations for backward classes and Scheduled Castes and Tribes because the [ACT] has assigned a special place for that factor and they mirror problems of inherited injustices demanding social surgery which is (if?) applied thoughtlessly in other situations may be a remedy which accentuates the malady."
Therefore the said decision of the Supreme Court in [ENTITY] does not come in aid of the petitioners in the present case where they are challenging reservation in favour of SC/ST falling within the scope of [SECTION]. It may be noticed here that the Supreme Court in that decision, although felt that 70% reservation in favour of Delhi University students for admission to postgraduate medical courses under Delhi University was too high, yet it did not interfere with the same at the final stage. The learned Advocate for the petitioners also relied upon the decision of the Supreme Court in [ENTITY] v. Union of India, . He drew my particular attention to paragraph 10 of the said decision wherein it is observed inter alia that the philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed, and that the effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up, and it would be against the national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when mere meritorious students are available, simply because the former are permanent resident or resident for a certain numbed of years in the State while the latter are not, though both categories are citizens of India. He also attracted my attention to the observation of the Supreme Court in the said paragraph that exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote sub-standard candidates and bring about fall in medical competence, injurious in the long run to the very region. It may be stated here that the decision of the Supreme Court in [ENTITY] also did not at all deal with the question of reservation for SC/ ST. In that decision the Supreme Court upheld reservation in educational institutions on the basis of residence in the State or institutional preference, up to 70% at the undergraduate level in medical colleges leaving at least 30% seats to be filled up on all India basis. Even at the postgraduate level institutional preference (but no residence-based preference) was permitted up to 50% leaving the remaining 50% for open competition. This decision of the Supreme Court also therefore does not help the petitioners because in the present case what the petitioners are challenging is not institutional reservation or residence-based reservation which does not exist at all, but reservation in favour of SC/ST categories. What is more interesting in this connection is that the petitioners' crusade against reservation in any form is sure to turn out to be boomerang for themselves. If the Supreme Court's observations in [ENTITY] and [ENTITY] (supra) as relied upon on behalf of the petitioners, are required to be understood in an absolute sense as altogether prohibiting reservation in any form at the cost of merit and if therefore the admission is to be guided wholesale by consideration of merit and merit alone, in that event I am afraid whether all the petitioners would at all come in the zone of consideration for admission on the basis of open competition. It may be noticed here that the total seats available for admission under the control of the Calcutta University in the different streams of post-graduate medical courses in 1997 is 382. The position of the petitioners Dr. [ENTITY] and Dr. [ENTITY] in the common merit list is 408 and 435 respectively. It is therefore evident that in view of their position in the common merit list they would have presumably no chance of getting admission in any of the post-graduate courses because the total number of seats in such courses is only 382. Similarly the position of the other three petitioners Dr. [ENTITY], Dr. [ENTITY] and Dr. [ENTITY] in the common merit list, being 365, 368 and 354 respectively is also not enviable at all. These three petitioners also occupy only lower level rungs vis-a-vis the 382 available seats and therefore they would also have very little chance of getting preference for admission in the courses of their choice. Fortunately for them their scope of admission and chance of obtaining subjects of their choice brightened by reason of the allotment or reservation which has been made in favour of the Government quota to which they belong. Therefore if the cause of merit for admission in hundred per cent seats is to be championed as desired by the petitioners on the basis of the aforesaid decisions of the Supreme Court, in that event some of them would perhaps have been totally out of picture and some would be in less enviable position than what they are enjoying now in the matter of getting admission in the subjects of their choice.
8. The learned Advocate for the petitioners also referred to the decision of the Supreme Court in [ENTITY] v. State of Punjab, in support of his contention that reservation should not be made for ushering in reverse discrimination. The decision of the Supreme Court in [ENTITY] however relates to reservation in the matter of promotion in services in favour of SC/ST. Obviously any SC/ST employee obtaining accelarated promotion in a higher grade due to reservation superseding general category candidates cannot get priority in the matter of promotion to an unreserved post in the still higher grade ignoring the seniority of the general category candidate who was senior to him in the lower grade and who has since been promoted to the higher grade to which the concerned SC/ST candidate obtained promotion earlier. The import is that reservation gives only accelerated promotion and not accelerated seniority and if accelerated seniority is also given due to accelerated promotion the undesirable consequence will be a reverse discrimination. In our present case however it is a question of admission to the educational courses and it is not at all a case of promotion and therefore the question of reverse discrimination does not arise here. The learned Advocate for the petitioner also referred to the decision of a Division Bench of the Bombay High Court in [PRECEDENT]. There in computing the extent of reservation at the disposal of the competent authority the competent authority was also taking into consideration the seats which were not at its disposal and over which other authorities had control so far as admission was concerned. Obviously in computing the extent of reservation in seats under the control of the competent authority, such authority cannot take into consideration the number of seats which are not at its disposal and control for the purpose of admission. In our present case however the impugned reservation for SC/ST has been extended by the concerned authorities having control over the admission in the concerned seats on the basis of State Government notification providing for reservation. Here reservation in favour of SC/ST to the extent of 22% and 6% respectively in all the educational institutions and streams have been provided by a Government notification dated the 12th September, 1995 read with notification dated the 22nd May, 1996 issued under the order of the Governor, annexures-B and D to the affidavit-in-opposition affirmed on behalf of the respondents 1 to 5 in [CASE NUMBER].
Admission to the seats in the West Bengal Government Service Quota was also controlled by the University of Calcutta through examination test for selection. Therefore in view of the Government notifications, referred to above it was definitely open and rather obligatory to the University controlling the selection for and admission to the concerned seats to provide for reservation in the government quota also following the Government notification. The learned Advocate for the petitioners also referred to the decision of the Supreme Court in [PRECEDENT], . It was held in that decision that the Government having laid down the system of holding, admission test for post-graduate medical courses is not entitled to do away with the requirement of obtaining the minimum qualifying marks for the special category SC/ST/OBC candidates. Here in our present cases obviously there is no such factual dimension. On the other hand the learned Advocate for the respondents referred to the decision of the Supreme Court in State of M. P. v. Nivedita Jain, where in connection with admission to medical colleges it was held that the executive order of the Government completely relaxing the condition-
relating to minimum qualifying marks for selection of SC/ST candidates cannot be said to be unreasonable.
9. The learned Advocate for the petitioners has argued as noted earlier that there cannot be any reservation within reservation or quota within a quota and as such reservation in favour of SC/ ST within the Government Service Quota is not tenable. As we have already seen the quota or reservation in favour of Government Service is not a reservation under [SECTION]. It is only a classification under [SECTION] or for that matter [SECTION] also. It may also be mentioned here that although the Supreme Court in its decision in [PRECEDENT], and [PRECEDENT], held that districtwise or unitwise reservation for admission in medical colleges was bad, yet the Supreme Court has upheld in several decisions as discussed above the validity of State based residence requirement and University-wise preference up to a reasonable extent. Also reservation for SC/ST under [SECTION] in the University-wise quota of seats has been applied and permitted. Such has been the case also with the quota reserved on the State-
based residence requirement. For example, say, when 70% seats for admission are allotted or reserved on State-based residence requirement and the remaining 30% on open all India basis, certainly reservation for SC/ST can be and indeed has been validly made under both blocks of allotment namely, in the Stale-based residence requirement category as well as in the open all India category. These are all illustrations of reservation within reservation or quota within quota, as one may call it. In State of Kerala v. [PRECEDENT] it has been observed that it is a mistake to assume a priori that there can be no classification within a class, say, the lower division clerks, and that if there are intelligible differentia which separate a group within that class from the rest and that differentia have a nexus with the object of classification.
there is no objection to further classification within the class. Therefore further classification within a class is by itself not an anathema, and more so where the classification, as in this case, is a constitutionally recognised one falling under [SECTION].
10. The concept of reservation within reservation is also not an unknown or unusual phenomenon. Cross-reservations or inter-locking reservations resulting from interaction between vertical reservation and horizental reservation covering classified human areas is not at all uncommon. The interaction between vertical reservation and horizental reservation has been considered by the Supreme Court in very many decisions e.g., in [PRECEDENT] in connection with the admission to medical courses. In our present case also we will see that there has been vertical reservation for the West Bengal Service Quota along with the vertically placed open quota seats under the control of the University of Calcutla and against both those vertically compartmentalised quotas there has been horizental reservation in favour of SC/ST in each vertical compartment. Since in our present case nobody is challenging the validity of vertical reservation in favour of the West Bengal Government Service Quota and since reservation in favour of SC/ST is a constitutionally recognised phenomenon under [SECTION] there is no scope of arguing that the horizental reservation in favour of SC/ST within the vertical quota of reservation in favour of West Bengal Government Service is bad in law. The contention of the petitioners that SC/ST reservation in service quota is not permissible, therefore must fail.
11. The learned Advocate for the petitioners submitted that the Admission Rules of the University did not contain any provision for SC/ ST reservation in the Government quota. This is however not correct. As I have already pointed out [SECTION] of the rules for admission issued by the University of Calcutta contains provision for reservation. While [SECTION] speaks of reservation for Government quota, [SECTION] clearly says that the seats will be reserved for SC/ST candidates as per rule. This itself indicates and permits SC/ST reservation of seats in the Government quota also. It is also submitted by the learned Advocate for the petitioners that the SC/ST candidates have already obtained the benefit of reservation at the time of admission to MBBS course and therefore they are not entitled any more to get the benefit of reservation again at the stage of admission to post-graduate medical courses. It was also pointed out by the learned Advocate for the petitioners that even the Medical Council also recommended that there should not be any reservation in the post-graduate courses of medical study. These submissions however automatically stand negatived in view of the decision of the Supreme Court in [ENTITY]. Singh v. State of Bihar . In paragraph 19 of the said decision in [ENTITY]. it has been observed by the Supreme Court that the regulations made by the Medical Council speak generally of students for post-graduate training being selected 'strictly on merit judged on the basis of academic record in the undergraduate course' and this is more in the nature of advice and not a binding direction. It was further observed that the power conferred upon the State by [SECTION] is a constitutional power and the said power obviously could not have been over riden or superseded by a regulation made by the Indian Medical Council and that the regulation must be read consistent with [SECTION] and if so read, it means that the students shall be admitted to postgraduate training strictly on the basis of merit in each of the relevant classes or categories, as the case may be and further that any other construction seeking to give an absolute meaning to the said regulation would render it invalid both on the ground of travelling beyond the Act and it may also fall foul of [SECTION]. In paragraph 7 of the said decision the Supreme Court clearly held that there is no rule under [SECTION] that a student cannot be given the benefit of reservation at more than one stage during the course of his educational career, and where to draw the line is not a matter of law but a matter of policy for the State to be evolved keeping in view the larger interests of the society and various other relevant factors. It was further observed by the Supreme Court in that connection that unless the line drawn by the State is found to be unsustainable under the relevant article, the court cannot interfere. Therefore the plea taken by the learned Advocate for the petitioners that the SC/ST candidates cannot be granted the benefit of reservation on more than one occasion is also not tenable.
12. It has been also submitted by the learned Advocate for the petitioners that in reputed postgraduate institutions like the post-graduate Institute of Medical Education and Research, Chandigarh and the Indian Institute of Medical Sciences, New Delhi there is no reservation for SC/ST against the sponsored quota in the postgraduate medical courses. In this connection it is however to be said that [SECTION] does not make any mandatory provision for reservation. The power to make special provision including reservation under [SECTION] is discretionary and not mandatory. Therefore the fact that in some post-graduate institutions there is no reservation for SC/ST under [SECTION] cannot be treated as a bar against permissible reservation in some other institutions under [SECTION]. In this connection it is also to be mentioned that the learned Advocate for the petitioners attracted my attention to the Admission Rules of the Calcutta University for 1994 in the post-graduate medical courses which is an annexure to a writ petition wherein it was provided that 5 marks would be allotted inter alia to the candidates belonging to SC/St for the purpose of computing merit list, provided they had obtained the minimum eligibility marks. It is submitted that such was the rule till 1996 that only additional 5 marks would be awarded to the SC/ST candidates in computing the merit list but there was no reservation of seats for them and that system has been changed by providing for reservation in favour of SC/ST candidates from this year, that is, 1997. It seems that the petitioners have no grievance against the earlier system of additional 5 marks in favour of SC/ST candidates for the purpose of computing merit list instead of reservation of seats which has been introduced from this year. In this connection it is only to be mentioned that the system of providing additional 5 marks to SC/ST candidates was also a special provision in the form of concession in favour of SC/ST candidates squarely falling within the purview of [SECTION]. The special provision contemplated under [SECTION] may be of different forms, namely, concession, reservation etc. and there is also no rule or law that the form of special provision once made will have to remain static for eternity. Certainly the form of special provision may be changed from concession to reservation under [SECTION] within the permissible limit as has been done in this case and there is nothing wrong in it. As we have seen, in this case the extent of reservation in favour of SC/ST candidates, being 22% and 6% respectively, falls within the permissible limit.
13. Now that we have found that reservation for SC/ST is permissible in the Government quota, we will now proceed to examine the process followed in giving option to the candidates in the Government Quota for choice of subjects. In providing for reservation the University is obviously guided by the Government notification dated the 12th September, 1995 annexed to its affidavit-in-opposition which read with the subsequent notification dated the 22hd May, 1996 requires, by the order of the Governor, to make reservation of 22% and 6% seats for SC/ST respectively in all educational institutions including post-graduate and doctoral medical courses. Such reservation is required to be made in all educational institutions as provided in paragraph 1(a) of the said notification dated the 12th September, 1995, Clause (b) of the said paragraph (1) also specifically says that the reservation for SC/ST candidates shall be maintained separately for each course/stream/ subject in each educational institution. Clause (c) of the said paragraph (1) of that notification says that while calculating the number of reserved seats for the SC/ST candidates a fraction of 0.5 shall be treated as one seat. By an amendment to the same as introduced by the subsequent notification dated the 22nd May, 1996 it was provided that in case the number of scats reserved for SC/ST in post-graduate and doctoral courses of medicine etc. is less than 0.5 in each stream, in that case 50 point roster adopted under notification dated 2-9-94 shall be followed for filling up of seats. The University, in making provision for reservation in the post-graduate medical courses is undoubtedly bound to follow the aforesaid notifications which were issued under the order of the Governor in respect of reservation of seats in favour of SC/ST candidates. There are 80 seats in the West Bengal Government Service Quota. 22% of these 80 seats for SC comes to 18 and 6% for ST comes to 5. Accordingly out of those 80 seats 18 seats are required to be reserved for SC candidates and 5 seats for ST candidates. So far there is no problem. This total reservation again has been distributed by the University in the different streams of the post-graduate medical courses in the following manner :
West Bengal Govt Quota Allotment Total seats = 80 22% SC = 18 Total seats = 80 6% ST = 5 Subjects No. of seats in Govt. Quota SC ST MD (General Medicine) MD (Obst. & Gynes) MD (Derm.)
MD (Anaesth)
MD (Psychiatric)
MD (Radio-Diagnosis)
MD (Paediatrics)
MD (Chest)
MD (Physiology)
MD (Biochemistry)
MD (Pharmacology)
MD (Pathology)
Micro
G. S. OPH
DMRD DPM
DA DFM
14. It will thus appear from the above chart that while the reservation of seat for SC/ST taking the whole quota in consideration is all right yet the streamwise, that is, subjectwise reservation for SC/ST has not been always consistent with the Government notification which the University is bound to follow. The above chart will show that the total seats in Government quota-in each of the subjects/streams does not permit any streamwise reservation in favour of ST candidates for whom the reservation is only 6%. As for example, in G. M. there are total 5 seats in the Government quota out of which one seat has been reserved for ST. Now calculation at the rate of 6% in favour of ST out of those 5 seats falls below 0.5 as a result of which there cannot be any reservation of one seat in favour of ST in the said stream. As a matter of fact by following the method of calculation provided in the concerned Government notification in none of the streams in the Government quota on seat can be reserved for ST. For SC category also on the basis of the calculation made in accordance with the method provided in the Government notification for the purpose there cannot be any streamwise reservation in the following streams, namely, Derm., Psy., Chest, Phy. and Pharma because 22% of the seats allotted in the Government quota in each of these streams fall below 0.5. But even then, as we have seen, the University has made reservation in each of those 5 subjects/streams which is strictly speaking not consistent with the concerned Government notification. It may however be mentioned here that the allotment of seats in favour of SC in respect of the other streams in the Government quota is however found within the permssible limit of reservation as per Government notification. As we have seen, the Government notification dated the 22nd May, 1996 clearly provides that where the number of seats to be reserved for SC/ST on the basis of the percentage provided for such reservation comes to a figure less than 0.5 in each stream in that case 50 point roster is required to be adopted. Instead of doing that, the University has however allotted seats in favour of SC/ST even in certain streams where such reservation of a one seat in the particular stream is not permissible on the basis of the method of calculation provided for the purpose in the concerned notification. This is strictly speaking not in conformity with the Government rule. What should have been done to avoid this in deviation from the notified rules is to adjust the SC/ST candidates against the total seats in the Government quota by following the procedure of counselling according to the general merit list including the SC/ST candidates as per the counselling schedule originally notified by the University. As we have already seen the counselling schedule originally announced by the University was arranged strictly in accordance with the merit position in the combined merit list so that candidates occupying higher position in the merit list could get the earlier opportunity of choosing their subjects from the available seats compared to those who were in comparatively lower position in the combined merit list. Deviating from the original counselling schedule which was arranged strictly according to the merit position in the combined list what the Admission Authority of the University did was that they allowed the SC/ST candidates an earlier opportunity to exercise their option for choosing subjects by giving them separate opportunity of counselling on the very first day as a result of which many reserve category candidates got earlier opportunity of choosing their subjects by superseding the seniority of many other candidates in the common merit list. The University prepared a separate merit lists for the qualified SC and ST candidates from out of the common merit list. Indeed there is nothing wrong in it. There was also nothing wrong in calling the SC/ST candidates for counselling on priority basis so far as the streams in which specific reservation of at least one scat was permissible in accordance with the method of calculation provided for In the Government notification. But deviating from the original counselling schedule and by giving opportunity to SC/ST candidates to choose their subjects on priority basis even in respect of the stream where at least one seat even for the concerned category is not permissible for allotment by earmarked reservation by following the method of calculation ordained by the Government notification, the University has exceeded its jurisdiction, strictly speaking and thus there has been a violation of the concerned rules and procedures at the instance of the Admission Authority of the University, The learned Advocate for the University tried to justify this deviation by submitting that this was done by exercise of administrative discretion. In my opinion however the administrative discretion should not and cannot be exercised so as to deviate from the prescribed procedure provided by the rules or the Government order under which the administrative authority was discharging its function in the concerned sphere. Where streamwise reservation by earmarked allotment for any particular reserve category is not permissible in accordance with the prescribed procedure, counselling in accordance with the combined merit list would have given opportunity to the candidates in the combined merit list to get the opportunity of choosing their subjects in accordance with their respective positions in the combined merit list and would at the same time have ensured reservation for the SC/ST categories in the Government quota as a whole so far as the total number of seats required to be reserved within the Government quota is concerned and this would have been consistent with the rules and procedure prescribed by the Government. I am again making it clear that separate counselling even on priority basis from the list of qualified SC/ST candidates is perfectly good so far as the streams where reservation of at least one seat in the concerned stream is permissible in accordance with the prescribed method of calculation. But apart from that, the SC/ST candidates under the prescribed procedure cannot get priority in the matter of counselling in respect of those streams where reservation of even at least one seat in the particular stream is not permissible under the prescribed method of calculation. As we have seen in some of the streams in the Government quota reservation of even one seat streatwisc is not permissible under the prescribed method of calculation and therefore the University was not justified in reserving one seat for the reserve category candidates in those earmarked streams under the Government quota, as already enumerated by me, by their purported administrative discretion which is inconsistent with the reservation policy and the method of calculation provided by the concerned Government notifications.
[SECTION]. Tt is also to be pointed out here that by providing separate counselling for the SC/ST candidates against the reserved and the earmarked seats the University has also unduly caused a shrinkage of availability of seats for the SC/ST candidates and this has caused detriment to the interest of the reserve category candidates also. Para 2(a) of the Government notification regarding reservation dated the 12th September, 1995, annexure-B to the affidavit-in-opposition, provides inter alia that the scheduled caste and scheduled tribe candidates who have been placed in the general merit list to fill up unreserved seats shall not be taken into account in the reserved lists for the scheduled caste and scheduled tribe candidates respectively. The SC/ST candidates who can compete with the general category candidates on merit are therefore required to be adjusted against the unreserved seats on the basis of their own merit along with the other general category candidates competing on merit. The benefit of reservation in the SC/ST candidates who cannot compete with the general category candidates and therefore in filling up reserved seats or the reserved quota of the total number of seats opportunity is required to be given only to those of the qualified SC/ST candidates who cannot compete in the common category on the basis of their position in the common merit list and this has to be done without taking into account the meritorious SC/ST candidates, if any, who automatically find place in the common quota on the basis of their competing merit. But what the University here has done by arranging completely separate counselling for SC/ST candidates is that even those SC candidates who could find seat in the common category on merit have also been adjusted against the reserve category quota thereby depriving some reserve category candidates occupying lower position in the merit list the opportunity of getting the benefit of reserved quota. This method adopted by the University by deviating from the prescribed procedure has thus not only harmed the general category candidates in the matter of choice of subjects where streamwise reservation is not permissible under the prescribed procedure and rules but has also harmed the reserved category candidates by depriving at least some of them the opportunity of getting the benefit of reservation, by reason of adjustment of more meritorious reserve category candidates who could compete in the common quota, against the reserved seats instead of common category seats. That is why I say that the irregular procedure which has been adopted by the University in this matter has harmed both the categories, namely, the reserve category and the common category.
[SECTION]. It is to be noted here that out of the total five seats reserved in the specified streams for ST candidates four are lying vacant. It may however be mentioned here that only one ST candidate qualified in the admission test. But of course under the rules if no qualified candidate of the ST category is available for filling up any reserved vacancy for that category in that event the same may be filled up by qualified SC candidate and vice versa. There are also four seats lying vacant in the Government quota out of the reserved quota for SC category. The seats which are lying vacant as per information furnished by the learned Advocate for the University during the hearing is tabulated below :
[ENTITY] position in Service quota SC ST MD (General Medicine)
MD (Obst. & Gynae)
MD (Physiology)
MD (Bio-chemistry)
It is also to be noted that there is an interim order of this court not to fill up these vacancies. Now the question is what should be done in view of the irregularity committed by the University in making earmarked reservation in such streams where that is not permissible under rules in the manner in which it has been done as well as in offering priority to SC/ST candidates for opting their subjects of choice by breaking the periority under the common merit list.
17. The learned Advocate for the added respondents who are reserve category candidates admitted in different streams under the Govt. quota submitted that even if there has been any irregularity in the matter of offering choice of streams to the reserve category candidates already admitted in the different streams, yet they should not be disturbed at this stage because they are pursuing their studies in the streams in which they have been already admitted and they have been attending classes and they are indeed all qualified and eligible for admission in the reserve category quota. It is further submitted that they have absolutely no fault in the matter of admission and they should not be now disturbed or punished by dislodging them from the courses which they have been pursuing. The learned Advocate for the added respondents in support of his submission also referred to the decisions of the Supreme Court in [PRECEDENT], and [PRECEDENT]. Having regard to the totality of the facts and circumstances obtaining in this matter which I have elaborately discussed, I am also of the view that the placement in respect of the SC/ST candidates who have been already admitted and who are pursuing their studies should not be now disturbed in this case, particularly when they are qualified and eligible for admission, they are not responsible for any irregularity in the matter of admission and choice of streams, and the method which has been adopted by the University for giving admission to the eligible SC/ST candidates against reserved seats by totally segregating them from the general run of candidates, has operated to the detriment of both the categories, namely, the reserve category and the general category as I have already discussed elaborately. I therefore do not propose to disturb the placement of the SC/ST candidates which has already taken place. But in respect of the seats which are lying vacant in the Government quota I think it would be just and proper to allow the writ petitioners the opportunity, according to their inter se merit position in the common merit list, to opt for any of the vacant seats in the service quota as mentioned above except in Bio-chemistry, DPM and DFM where streamwise reservation of at least one seat each is justified by the prescribed method of calculation.
18. The learned Advocate for the University however submitted that there was delay in approaching the Court and the writ petitioners also accepted the admission offered to them and have thereafter come to the Court which they cannot do. In this connection he also referred to certain decisions, namely, [PRECEDENT], , [PRECEDENT], , [PRECEDENT], , [PRECEDENT], and [PRECEDENT]. Those decisions were given in the facts of the respective cases. In our present cases I however do not find that there has been any undue delay which would disentitle the writ petitioners to seek relief in the Court in its writjurisdiction. The classes, I am told, started in the first week of May. The petitioners must have taken admission sometime in the latter part of April, 1997 immediately after counselling which took place in the last week of April, and the two cases have been filed in the first part of May, 1997 and one case in early June 1997. Having regard to the fact that the rule required the selected candidates to take admission immediately after counselling, little option was left to the petitioners but to take admission in the streams offered to them in counselling on pain of forfeiting the chance of admission altogether if the offer was not accepted. In the circumstance admission cannot forfeit the petitioners right to approach the Court later after ascertaining all relevant facts. It is also to be noted here that the respondents do not require the backing of the decisions cited by their learned Advocate as referred to above because I have upheld reservation in service quota. The fault I have found is regarding streamwise reservation of seats in certain streams where the prescribed method of calculation does not permit reservation in the manner in which it has been done, and also regarding the priority in counselling as given to the reserve category candidates deviating from the prescribed manner of counselling thereby inflicting detrimental and undue consequences on both the reserve and the general categories of candidates. The learned Advocate for the University also submitted that the mere fact that some seats are vacant is no ground to give admission in the midstream of the session. In this connection he also referred to the decision in [PRECEDENT], . It is however to be noted that the petitioners approached the court soon after the classes began and therefore it cannot be said to be a case of admission in the midstream of the session. In the cited decision in [PRECEDENT] (supra) admission was directed more than a year after the courses were started. Here it is not at all so. It is also the case of the University, as submitted, that the vacant seats in the different streams in the SC/ST category could not be filled up due to the interim order of the Court. This also shows that the process of admission in the postgraduate courses was yet continuing when the petitioners approached the Court and therefore it is by no means hit by the theory that there should not be any admission in the midstream of the session.
19. On the totality of the facts and circumstances I find that there is no sufficient reason to refuse relief to the petitioners in this case. Accordingly I direct the respondent authorities including the University and its concerned faculty to allow the writ petitioners the opportunity, according to their inter se merit position in the comon merit list, to opt for any of the vacant seats in the service quota except in Bio-chemistry, DPM and DFM where streamwise reservation of at least one seat each is justified by the prescribed method of calculation as per Government notification. It is however made clear that if there is any SC/ST candidate occupying a higher position in the merit list visa-vis any one or more of the petitioners, in that event such SC/ST candidate shall be given priority of option before such of the petitioners who occupy comparatively lower position on the common merit list. Subject to the above direction the respondents will be at liberty to fill up the vacant seats in the Government quota from eligible SC/ST candidates. The writ petitioners have already been admitted to one or other of the streams in the service quota. If by reason of option now given to them in respect of the vacant available seats in the service quota any seat or seats which the petitioners are now occupying fall vacant, in that case the same shall be made available to the other writ petitioners or to the reserve category candidates according to their respective positions in the common merit list. In passing this order I have assumed that apart from the writ petitioners the others who have taken admission in the seats allowed to them from the Government quota are satisfied with the streams they have got and they have by this time settled there without demur. Exercise of option by the writ petitioners and consequential change of stream for them as well as fresh admission of reserve category candidates in compliance with this order, if any, shall be completed within two weeks. It is also hoped that from the next session the University will take adequate care to ensure that the irregularities pointed out by me in this year's admission may not recur. The learned Advocate for the petitioners also submitted that there are some seats lying vacant even now under the all India quota and the petitioners may be allowed to exercise option in respect of those vacant seats also under the all India quota. In my opinion this cannot be done as this is not permissible under the rules and that is also not their case in the writ petitions. The writ petitions stand disposed of with the observations and directions given above. No cost is ordered.