JUDGMENT [ENTITY], Ag. C. J. 1. In this writ application the petitioners pray for quashing of the impugned annexure, being Annexure '1' to the writ application. By this annexure reservation of 14 per cent and 9 per cent seats for Scheduled Caste and Scheduled Tribe candidates has been made for admission into the Post-Graduate Medical Course in the Medical College of the State for 1981-82. 2. It is not in dispute that the original prospectus that was issued for admission to the aforesaid course by the Additional Director of Health Services (Medical Education) and Chairman. Board of Post-Graduate Medical Examination Test, did not contain any provision for reservation for Scheduled Caste or Scheduled Tribe candidates. Examination was held on the basis of the aforesaid prospectus. After the written test the result of successful candidates was notified on the Notice Board of Patna Medical College, and was also published in the local journals including the daily "Indian Nation". A copy of the said result as published in the Indian Nation is annexed as Annexure "3" to the writ application. After the publication of the result, the aforesaid Annexure '1' has been issued making the reservation as indicated above. It is averred in the petition that as a result of this reservation the petitioners would not be able to take their admission in the post-graduate degree courses. It is because of this that the petitioners are challenging the impugned annexure making reservation. 3. An application has been filed on behalf of the persons mentioned therein for being permitted to be added as intervenor respondents and for permission to make submissions in conformity with [SECTION] of the [ACT]. We have heard learned counsel for these applicants. We have also heard the learned Advocate General on behalf of the State. 4. The challenge to the impugned annexure is on two grounds. It is contended that the State is prevented, on the principle of promissory estoppel from bringing about any change in the pros-pnctus and thereby creating reservation for the members of the scheduled caste and scheduled tribe. Reliance in this connection is placed on a Bench decision of this Court in Dr. [ENTITY] v. State of Bihar ([PRECEDENT]). It is next contended that regulations have been framed for admission to combined competitive examination for post graduate course in Government Medical Colleges of Bihar. These regulations have been framed under [SECTION] of the [ACT]. The regulations are thus statutory in character. They do not provide for any reservation. It was, therefore, not open to make reservation under Annexure "1", which is an executive instruction issued by the State Government. 5. The sheet anchor of the argument on behalf of the petitioners is the decision of this Court in Dr. [ENTITY]'s case. There also the reservation made in Medical Colleges for Scheduled Castes and Scheduled Tribes in the year 1980 was under challenge. That challenge succeeded. This is how the contention regarding applicability of the principle of promissory estoppel was dealt with by this Court (at p. 168): "The order contained in Annexure 4 was passed on 17th of October, 1980, after all formalities were over and only the final list had to be published and the students admitted. The petitioners, respondents Nos. 4 to 8 and all others had applied for admission on the basis of the representation contained in the notice and the prospectus (Annexure 5) that selection of candidates will be done by the Selection Board on the basis of merit determined by the marks obtained by them at the competitive test No reservation had been made for the Scheduled Castes, Scheduled Tribes at that time. When the final selection was to be made, the Government by the order contained in Annexure 4 purported to change the basis of selection. This was not permissible as it violated [SECTION] and [SECTION] of the [ACT]. The claim of the petitioners is founded upon equity which arose in their favour as a result of the representation made in the notice and the prospectus as also the action taken by the petitioners acting upon the said representations under the belief that the authorities would carry out the representations made by them or on their behalf. In almost a similar situation, a Bench of the Orissa High Court in [PRECEDENT] held that the principles of legal or equitable estoppel was applicable in the circumstances of the case and the authorities concerned were estopped from issuing such orders. The Government is not exempt from the liability to carry out the representations in the notice and the prospectus as to the basis of merit on the marks obtained at the competitive test for selection. The impugned Government order contained in Annexure 4 to the extent it makes reservation for the Scheduled Castes and Scheduled Tribes for admission to all the Post-Graduate Degree and Diploma Courses, must, therefore, be held to be invalid as it violates the provisions of the [ACT] and is otherwise illegal." 6. Mr. [ENTITY] arguing for the intervenors tried to distinguish this case on facts. He as also the learned Advocate General contended that this decision could not be said to be good law in view of the decision of the Supreme Court in [PRECEDENT] and State of Madhya Pradesh v. Kumari [ENTITY] (AIR 1981 SC 2045). It was also contended that the Bench decision of this Court could not stand in the way of this Court taking a contrary view in view of the fact that special leave has been granted against the judgment of this Court and interim order has been passed in the following terms: "Issue notice for 27-7-1981. We direct that as an interim arrangement the State of Bihar may create additional seats and the petitioner may be given tentative admission pending notice. Other persons belonging to Scheduled Castes and Scheduled Tribes may also be admitted if they move the Government for this purpose." This order, it was contended, virtually amounts to overruling the decision of this Court. I must state that I cannot agree with this submission of the respondents. Nothing has yet been finally determined by the Supreme Court. I would, therefore, proceed to consider whether the present case is distinguishable with the previous decision of this Court and whether the said decision could be said to be contrary to any earlier or later decision of the Supreme Court. 7. I find it difficult to distinguish the case on facts. It will, therefore, have to be examined whether the earlier Bench decision, being per incuriam or for other reasons is not binding. It is to be observed that Dr. [ENTITY]'s case ([PRECEDENT]) does not notice several decisions of the Supreme Court and only noticed one decision of the Orissa High Court. It would therefore, be necessary to examine the relevant Supreme Court decisions. 8. I would first consider the decision of the Supreme Court in [PRECEDENT]. Dealing with the general principle of estoppel in relation to State, it was observed as follows (at p. 2649): "In American Jurisprudence 2nd at page 783 paragraph 123 it is stated 'Generally, a State is not subject to an estoopel to the same extent as is an individual or a private corporation. Otherwise, it might be rendered helpless to assert its powers in Government'. Therefore as a general rule the doctrine of estoppel will not be applied against the State in its governmental, public or sovereign capacity. An exception however arises in the application of estoppel to the State where it is necessary to prevent fraud or manifest injustice. The estoppel alleged by the appellant [ENTITY] was on the ground that he entered into an agreement and thereby changed his position to his detriment. The High Court rightly held that the courts exclude the operation of the doctrine of estoppel, when it is found that the authority against whom estoppel is pleaded has owned a duty to the public against whom the estoppel cannot fairly operate." This decision has been interpreted in the case of [PRECEDENT] by a Division Bench of the Supreme Court as laying down that the principle of estoppel is not available against the Government in exercise of legislative, sovereign or executive power (paragraphs 12 and 39). Even if it be held that none of these decisions stand as a complete bar to the applicability of the rule of promissory estoppel in relation to governmental action as aforementioned, it has to be recognised that even [PRECEDENT], on which strong reliance was placed by learned counsel for the petitioners, carves out an area where the rule of promissory estoppel does not apply in relation to governmental action. I would, therefore, quote the relevant passage from the said decision (at p. 644): "But it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it." 9. The earlier Bench decision did not consider whether the case was such whore on the principles laid down by the Supreme Court, the doctrine of promissory estoppel was excluded. It is, therefore, open to examine this question. 10. The position in this case is that in 1980 the Government attended to make reservation. This was held to be unconstitutional. It is obvious that had this decision been not there the prospectus for 1981 would have contemplated reservation. But in view of the Bench decision of this Court in Dr. [ENTITY]'s case ([PRECEDENT]) it was only reasonable that the Government would not rush in to make reservation without giving further thought to the matter. Some of the respondents of that case moved the Supreme Court and got an order dated 6-5-81 which could legitimately induce the Government to think that the Supreme Court may take a different view of the matter. It was in this situation the policy of reservation, which was formulated earlier was again sought to be enforced. It sufficiently explains as to why the reservation was not introduced in the prospectus and was notified by a separate order. 11. Learned counsel for the petitioner contended that Annexure '2' was issued after the order of the Supreme Court aforesaid. I do not find any date given in Annexure 2. Assuming, however, that it was issued after the Supreme Court's order, as the last date of submission of applications was 22-8-81, I do not think that the contention of the learned Advocate General that it was after appreciating the impact of the interim order of the Supreme Court that the order of reservation was issued can be rejected. What is, however, more important is to examine whether even on the enunciation of law, as quoted above, the governmental action is justified and whether the doctrine of promissory estoppel would be applicable. 12. It is well known that Scheduled Castes and Scheduled Tribes for various reasons, which have been discussed in numerous decisions of the Supreme Court, lag far behind many other sections of the community. Reservation is the method evolved in the [ACT] for bringing about real equality as against theoretical or formal equality. Thus the interest of the society is advanced as a whole by looking after its weaker section ([PRECEDENT] . Realising that even in the sphere of higher education members of Scheduled Castes and Scheduled Tribes require a special fillip, the policy of the Stale Government in relation to admission to Post-Graduate classes in medical education was evolved. I am, therefore, of the opinion that even if it be assumed that the issue of prospectus amounted to a representation and promise that the admission would be purely on the basis of merit (a matter about which I am not expressing any concluded opinion), I am of the view that it would be inequitable to hold the Government to the alleged promise made in the prospectus as it would be interfering with the constitutional mandate in [SECTION], of the [ACT] which is fundamental in the governance of the country ([SECTION] of the [ACT]) and would unduly interfere with the accepted policy of the State and Union Governments to provide for real opportunity of advancement of the interest of the Scheduled Castes and Scheduled Tribes. Taking into consideration the constitutional provisions contained in [SECTION] and [SECTION] of the [ACT], I am of the view that equity does not require that the Government, should be held bound by the alleged promise made by it I am further of the view that the principles enunciated in the Supreme Court decision which have been mentioned earlier have not been considered in Dr. [ENTITY]'s case ([PRECEDENT]) and as such this Bench is not prevented from taking a view contrary to the view expressed in the said case. Had these Supreme Court decisions been considered and interpreted earlier by a Bench of this Court, we would have been bound by that interpretation, and it would not have been open to us to give a different interpretation. Since, however, as already stated, the Supreme Court pronouncements, which are law of the land under [SECTION] of the [ACT], have not been noticed in the earlier decision, the latter Bench is entitled to follow the law as laid down by the Supreme Court and to apply them to the facts of the case under consideration. 13. Reliance was placed on the decision of the Supreme Court in [ENTITY]'s case ([PRECEDENT]) (supra) by the learned counsel for the respondents. But this case does not specifically deal with the question of promissory estoppel (which could very well have been raised in the case). I do not think that the petitioners are shut out from raising the question of promissory estoppel in the present case because of the aforesaid decision. 14. The second contention, as already noticed, is that under an executive instruction there could not be any amendment in the prospectus. Without going into the question whether the regulations are statutory in character or not, I am or the view that the power of the State Government to make reservation in conformity with [SECTION] of the [ACT] can neither be affected nor negatived by the mere fact that a statutory regulation made by it for admission into the Medical Colleges does not provide for reservation. The power to make reservation is derived under [SECTION] of the [ACT]. The exercise of that power cannot be prevented merely because some statutory instruments had not earlier provided for reservation. The second contention raised on behalf of the petitioners is, therefore, also unacceptable. 15. In the result, I do not find any merit in this application and it is accordingly dismissed but without costs. [ENTITY], J.
I agree.