IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8509 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VICHARTI & VIMUKT JATI MAHASANGH (GUJARAT) Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8509 of 2002 MRS KETTY A MEHTA for Petitioner No. 1-5 Ms MANISHA LAVKUMAR, AGP for Respondent No. 1-4 RULE SERVED BY DS for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 11/12/2002 CAV JUDGEMENT This petition is filed by Vicharti & Vimukt Jati Mahasangh (Gujarat), an Association formed by the members of Nomadic Tribes/Denotified Tribes (hereinafter referred to as "NT/DNT") to look after the welfare of members of the said Tribes, especially for looking after the admissions of their wards in institutions of higher education like medical and engineering colleges and by four students belonging to NT/DNT. In this petition under Article 226 of the Constitution, the petitioners have prayed for a writ to direct the respondent authorities of the State Government and the Chairman, Admission Committee for Engineering and Medical Colleges to show the names of petitioner Nos. 2 to 5 and other similarly situated students of NT/DNT category in the list of students for admissions to the medical colleges in a separate list for the reserved category of NT/DNT and also in a separate list of SEBC and to allow the said petitioners to fill in separate forms, one for the NT/DNT, which they have already filled in and the second for SEBC category (if they are entitled in the said category) and to follow the said procedure before finalizing the admissions in the medical colleges in the State of Gujarat. Similar prayer is made in respect of admissions to be given in the engineering colleges in the State. 2. At the hearing, the submissions were confined to admissions to medical colleges as the petitioners had no grievance regarding the procedure followed for giving admissions to engineering colleges. This year admissions to 1st MBBS/1st BDS courses and 1st Year Physiotherapy Course are governed by the Rules called "1st MBBS/1st BDS/1st B. Physiotherapy Courses at the Government Medical Dental Physiotherapy Colleges and Self Financing Institutes for these courses in the Gujarat State, 2002-2003" published as an accompaniment to the Government of Gujarat, Health & Family Welfare Department Resolution dated 18.5.2002. The following Rules contain the relevant provisions for reservation of seats for candidates belonging to different categories :- "2. Seven percent, fifteen percent and twenty seven percent of the total seats shall be reserved for the candidates belonging to SC, ST (including Garudi) and SEBC respectively, ... ... ... This reservation shall be for the candidates belonging to SC/ST (including Garudi)/SEBC recognized as such in the State of Gujarat and not to those who have migrated from other States. Provided that 49% reserved seats as mentioned above shall be calculated out of the left over seats after deducting Central Government Nominee seats, N.R.I. seats and 15% seats for the candidates coming from All India Entrance Examination provided in Rule 2.7 ... ... ... 2.1 1/5th of the seats reserved for the candidates belonging to Scheduled Castes, Scheduled Tribes (including Garudi) shall be earmarked for girl students of these communities and categories. If any seats so reserved remain vacant they will be given to boy students of the said communities and categories respectively. 2.4 The seats earmarked for admission of the particular category students under reserved seats for the candidates from the category belonging to SC/ST (including Garudi) SEBC (excluding Creamy Layers) etc. will be allotted for admissions of the students of the respective categories. For this purpose merit list will be prepared categorywise and admissions for each category will be regulated accordingly. 2.5 In case it is found in any particular year that the number of students belonging to respective communities and or categories mentioned above are not available for the reserved seats for such communities/categories, the vacant seats from that reservation shall be treated as unreserved seats and filled up from amongst the students from the open merit list of the respective Board/Council. 2.5(A) While admitting in the 1st MBBS/1st BDS/1st B. Physiotherapy courses in the Medical/Dental/Physiotherapy Colleges of the State Government and self financing institutes for these courses, the candidates belonging to the SC/ST (including Garudi)/SEBC for whom reservation is made and who come on open merit will be counted against non-reserved seats. The reservation percentage will be applied in addition to those who come on merit. 2.6 The candidates seeking admission under rule 2 will have to produce the caste certificate from competent authority as per rule 2.2 and 2.3 in prescribed proforma alongwith the application form. The candidate will not be allowed to change the caste or category thereafter. Rule 2.7 provides for reservation of 15% seats for candidates of all India Entrance Examination. Rule 2.8 provides for reservation of 3% of available seats in each category (SC/ST/SEBC/Open) in Government Medical/Dental/Physiotherapy colleges in locomotor disabled candidates of the respective categories. Rule 4 of the said Rules lays down the criteria of eligibility for admission in the following terms :- "4. The minimum requirement of marks at the qualifying examination for admission to the first MBBS/BDS/B. Physio Course shall shall be as under :- 4.1 The aggregate marks obtained at the external evaluation in Science subjects (Physics, Chemistry, Biology and Mathematics) in theory papers only shall be as under :- Percentage 4.1 (a) For Scheduled Caste candidates 40 4.1 (b) For Schedules Tribes (including 40 Garudi) candidates 4.1 (c) For Socially & Educationally 50 Backward Class candidates (Excluding Creamy Layer) 4.1 (d) For all other candidates except 55 where specific contrary provision has been made in the Rules" 3. The controversy is as to what is to happen when adequate number of eligible Scheduled Tribe candidates are not available for filling in the 15% seats reserved for Scheduled Tribes. According to the petitioners, such vacant seats from ST quota must be made available to the candidates belonging to NT/DNT. On the other hand, according to the State Government in the Health & Family Welfare Department, which is the administrative department regulating admissions to medical/dental and physiotherapy colleges, such vacant seats are to be made available to the open merit students. The NT/DNTs are included in one of the three categories - Scheduled Castes (2 Tribes), Scheduled Tribes (6 Tribes) or Socially & Educationally Backward Classes - SEBC (32 Tribes). Since all the 40 tribes which were earlier notified as NT/DNT are included in one or the other reserved category, the Admission Rules do not provide for separate reservation for the NT/DNT. 4. Before proceeding further, it will be necessary to set out a brief history of the reservations for particular communities in the matters of admissions to medical colleges as set out in the reply affidavit filed on behalf of the State Government. 4.1 By virtue of Government Resolution dated 30.3.1963, 40 NT/DNT tribes were classified. Prior to the bifurcation of the erstwhile State of Bombay, these NT/DNT were classified as such in the erstwhile State of Bombay. However, these tribes were not classified in the category of NT/DNT in the State of Kutch and Saurashtra. After the bifurcation of the erstwhile State of Bombay by virtue of the aforesaid Resolution, certain tribes were classified as NT/DNT in the entire State of Gujarat. Over a period of time, all these 40 tribes came to be accommodated in the three reserved categories prevalent in the State, i.e. SC/ST/SEBC. Government Resolution dated 1.4.1978 absorbs various tribes classified as NT/DNT into the SEBC category. However, as on date all the 40 tribes have been absorbed into three reserved categories, the details of which are as under :- 1. 32 tribes of the NT/DNT categories have been absorbed in the SEBC category. 2. 2 tribes of the NT/DNT categories have been absorbed in the SC category. 3. 6 tribes of the NT/DNT categories have been absorbed in the ST category, including the Garudi tribe. 4.2 Vide communication dated 13.8.1990 Anusuchit Jati Adivasi Yuvak Mandal (Gujarat State) made a representation to the "Tribal Development Department pointing out that the benefits conferred on the ST category is to be given to the said category only, but substantial benefits are being taken by the NT/DNT tribes and ST candidates are being deprived of the reservation benefits. The Tribal Development Department vide communication bearing No. isc-2490-M-108-Ch dated 12.9.1994 made a representation to the Education Department opining that considering the fact that the reservation benefits are already being granted to the NT/DNT in the respective three reserved categories i.e. SC/ST/SEBC, dual reservation benefits ought not to be granted to the NT/DNT as the same would amount to additional reservation benefits in favour of the NT/DNT as against the other reserved categories i.e. SC/ST/SEBC. Pursuant to the said communication, the Education Department accepted the opinion and recommendation of the Tribal Development Department and vide letter dated 4.10.1994 conveyed their concurrence with the view expressed by the Tribal Development Department in the earlier communication dated 12.9.1994. In the light of the aforesaid facts, Government Resolution dated 16.6.1995 (Annexure "C" to the reply affidavit) came to be issued by the Social Welfare and Tribal Development Department restricting the dual reservation benefits conferred on the NT/DNT candidates on the ground that as they are already enjoying the reservation benefits of the respective categories, dual reservation benefits shall not be conferred on the NT/DNT. 4.4 1995-96 However, as the admission process was under way and the academic year had already commenced, considering the practical hardships which would enure by virtue of the earlier Government Resolution dated 16.6.1995 for the academic year 1995-96 alone, operation of the said Government Resolution dated 16.6.1995 restricting the dual reservation benefits was suspended. It was a temporary interim short term measure taken to avoid undue hardships which would enure for the students as well as the administration in implementing the earlier Government Resolution dated 16.6.1995, which was published after the academic year had commenced. 4.5 1996-96 to 2000-01 Thereafter the State Government, Social Welfare and Tribal Development department (now known as Social Justice and Empowerment Department) issued the following Government resolutions continuing the aforesaid double benefit in favour of NT/DNT for the respective years which were acquiesced into by the Health and Family Welfare Department :- G.R. Dated For the academic year 28.08.1996 1996-97 30.05.1997 1997-98 29.05.1998 1998-99 15.03.1999 1999-2000 24.04.2000 2000-01 The Court's attention is invited to the fact that the Rules for admission to 1st MBBS/1st BDS/1st B. Physiotherapy Courses at the Government Medial/Dental/Physiotherapy Colleges and Self Financing Institutes for the said courses in the Gujarat State are being framed and published for each particular academic year. For the year 1999-2000, the relevant Rule 2.5 read as under :- "2.5 In case it is found in any particular year that the number of students belonging to respective communities or categories mentioned above are not available for the reserved seats for such communities/categories the vacant seats from that reservation shall be treated as unreserved seats and filled up from amongst the students fro the open merit list for the purposes of these admission provided that if the reserved seats are distributed on pro-rata basis between Gujarat Board and Central Board/Council and if sufficient number of students are not available for the reserved seats distributed to the Central Board/Council such vacant seats shall be filled up by the available candidate from amongst the students on merit list prepared for the Gujarat Board category wise and vice versa. Provided that as per the Tribal Development Department G.R. No. MIS-1098-CM-9-CH dated 15.3.99, the seats reserved for S.T. (including Garudi) candidates shall be filled up first from amongst the candidates of the S.T. (including Garudi) category only. However, in the events of non availability of the requisite No. of such S.T. (including Garudi) candidates from this category consequently vacant seats shall be filled in by the available eligible candidates from NT/DNT category for the year 1999-2000." Thus the policy contained in the Government Resolution dated 15.3.1999 issued by the Tribal Welfare Department was accepted by the Health Department by incorporating the same in the Rules for admissions to medical colleges for 1999-2000. Similarly for the year 2000-2001, the relevant Rule read as under :- "2.5 In case it is found in any particular year that the number of students belonging to respective communities and or categories mentioned above are not available for the reserved seats for such communities/categories the vacant seats from that reservation shall be treated as unreserved seats and filled up from amongst the students from the open merit list for the purposes of these admissions provided that if the reserved seats are distributed on pro-rata basis between Gujarat Board and Central Board/Council and if sufficient number of students are not available for the reserved seats distributed to the Central Board/Council such vacant seats shall be filled up by the available candidate from amongst the students on merit list prepared for the Gujarat Board category wise and viceversa. Provided that as per Tribal Department G.R. No. MIS-1098-CM-9-CH dated 24.4.2000, the seats reserved for S.T. (including Garudi) candidates shall be filled up first from amongst the candidates of the S.T. (including Garudi) category only. However, in the events of non availability of the requisite No. of such S.T. (including Garudi) candidates from this category consequently vacant seats shall be filled in by the available eligible candidates from NT/DNT category for the year 2000-2001." 4.5 2001-02 For the year 2001-02, the Health & Family Welfare Department, however, did not continue the grant of dual reservation benefits in favour of NT/DNT candidates for admissions to medical colleges, etc. while making the Rules for admission in the First MBBS/BDS/Physiotherapy at the Government Medical Collages, Government Dental Colleges, Government Schools of Physiotherapy and all self financed institutes of the State of Gujarat, 2001-02 published on 16.5.2001. On 30.5.2001, the Social Justice and Empowerment Department (Tribal Development Department) issued a Resolution extending dual reservation benefits in favour of the NT/DNT on the same lines as for the previous years. On 14.7.2001 when the matter was taken up at the higher level, it was decided that the Medical Rules which published on 16.5.2001 would not be amended and dual reservation benefits ought not to be given to the NT/DNT with regard to the admissions in the First MBBS/BDS/B. Physiotherapy courses. The Health and Family Welfare Department sought the opinion of the Social Justice and Empowerment Department (Tribal Development Department) with regard to its decision not to grant dual reservation benefits to NT/DNT. The Social Justice and Empowerment Department (Tribal Development Department) concurred with the view expressed by the Health and Family Welfare Department and the file in the Social Justice and Empowerment Department (Tribal Development Department) was forwarded all the way up to the Hon'ble Minister and on 24.8.2001 the concurrence was given by the Social Justice and Empowerment Department (Tribal Development Department) to the view expressed by the Health and Family Welfare Department, and it was further noted that it was open to the Health and Family Welfare Department to decide whether to continue or discontinue the dual reservation benefits for the current academic year 2001-2002. Soon after the above development, Special Civil Application No. 6876 of 2001 came to be filed by Vicharti and Vimukt Jati Mahasangh (Gujarat), present petitioner No. 1, for challenging Rule 2.5 on the ground that the same was contrary to the Government Resolution dated 30.5.2001. On 5.9.2001, a statement was made by the learned AGP, appearing on behalf of the State upon instruction from the Under Secretary of the Government in Health and Family Welfare Department and the Deputy Director, Technical Education that having taken a policy decision at the highest level, it is decided that for the present academic year dual reservation benefits shall continue in favour of NT/DNT. Accordingly, the following proviso came to be inserted in Rule 2.5 by way of an amendment issued by the State of Gujarat through its Health and Family Welfare Department Resolution dated 6.9.2001 (Annexure "D" to the reply affidavit) amending the Rules for admission to the First MBBS/BDS/B. Physiotherapy at the Government Medical/ Dental/Physiotherapy Colleges and all self financed institutes for these courses in the State of Gujarat for the academic year 2001-2002 :- "Provided that as per Social Justice and Empowerment Department Govt. Resolution No. MIS/1098/CM/9/CH dated the 30th May 2001 and as per the Oral order from Hon'ble High Court of Gujarat, the seats reserved for Scheduled Tribes (including Garudi) Candidate shall be filled up first from amongst the candidates of the Scheduled Tribes (including Garudi) Category only. The applications received from the candidate who have applied for admission to medical courses as SEBC candidates but who also belong to Nomadic Tribes/De-Notified Nomadic Tribes will be considered for such admission on the seats reserved for Scheduled Tribes candidates which may remain unfilled for the year 2001-2002 only." 4.6 2002-2003 The policy decision taken by the Health and Family Welfare Department on 5.9.2001 at the highest level was that for the academic year 2001-2002, the dual reservation benefits may continue; however, this was to be a one time measure for that year alone. Accordingly, after the admission process concluded for the academic year 2001-02, the Health and Family Welfare Department addressed a communication dated 13.9.2001 informing the Tribal Welfare Department that though for the academic year 2001-02 the dual reservation benefits were continued, it was grossly unfair and against the public policy to grant such dual reservation benefits in favour of the NT/DNT candidates whereas other candidates belonging to the SC/ST/SEBC categories were granted benefits only in the category to which they belonged. There was no reply to the said communication. Prior to the finalization of the Admission Rules to the First MBBS/BDS/B. Physiotherapy at the Government Medical/Dental/Physiotherapy Colleges and all self financed institutes for the State of Gujarat for the year 2002-2003, a reminder dated 17.4.2002 was addressed to the Social Justice and Empowerment Department (Tribal Development Department) enclosing its earlier communication dated 13.9.2001 informing that for the academic year 2002-03 as stated earlier, dual reservation benefits would not be continued in favour of the NT/DNT candidates. Thereafter on 18.5.2002, the State Government in the Health & Family Welfare Department issued a Government Resolution by order and in the name of the Governor of Gujarat, sanctioning and publishing the Rules for Admissions to the Medical, Dental and Physiotherapy courses in the Government Colleges and Self Financed Institutes in the State as an accompaniment to the said resolution. Rule 2.5 did not contain any proviso for giving the members of the NT/DNT categories any dual reservation benefit in the form of a proviso which was inserted in the Admission Rules for the year 2001-2002 by Government Resolution dated 6.9.2001. However, thereafter the State Government in the Social Justice Department issued resolution dated 15.6.2002 continuing the benefit of dual reservation in favour of NT/DNT candidates in the matters of admissions to medical and engineering colleges on the same lines as per the resolutions passed for the previous years. The State Government in the Health Department considered whether the policy of dual reservation benefit in favour of NT/DNT as contained in the Resolution dated 15.6.2002 of the Social Justice Department should be applied for admissions to medical colleges or not. The Health & Family Welfare Department took the decision not to grant any dual reservation benefits in favour of NT/DNT categories as they are already receiving reservation benefits in the respective categories in which they are placed i.e. either as SC or ST or as SEBC category. 5. The petitioners filed the present petition on 19.8.2002 praying for the above referred to reliefs and also praying for mandatory orders for directing the State Government authorities in-charge of admissions to medical, dental and physiotherapy colleges to grant the petitioners and other candidates belonging to NTs/DNTs the benefit of dual reservation. The learned Single Judge (Coram: Hon'ble Mr Justice Jayant Patel) while issuing Rule on 4.9.2002 declined to grant the main interim relief as prayed for, but granted the alternative interim relief to consider the cases of the petitioners placed in SEBC category for the seats reserved for SEBCs. The said interim order was carried in appeal and the Letters Patent Bench (Coram : Hon'ble Mr Justice JN Bhatt and Hon'ble Mr Justice JR Vora) allowed the Letters Patent Appeal to the extent of granting interim relief during pendency of the petition not to fill in the unfilled seats of ST quota from out of open merit candidates and directed the petition to be taken up for early final hearing. Accordingly, the authorities in charge of admissions to Medical/Dental/Physiotherapy Courses have kept certain seats vacant. In view of the availability of 250 additional seats in self-financed medial colleges in the State, some reshuffling is to take place for which the process has already commenced on 9th December, 2002 and, therefore, at the request of the learned counsel for the parties, the petition has been taken up for final hearing. 6. Mrs KA Mehta, learned counsel for the petitioners has raised the following contentions :- 6.1 NT/DNTs earlier formed part of the Scheduled Tribes for the purpose of benefit of reservations for admissions to medical and engineering colleges. Therefore, the State Government has issued Government Resolution dated 15.6.2002 for conferring on the members of NT/DNTs reservation of seats which are unfilled by ST candidates. The said policy is in consonance with the provisions of Article 15(4) of the Constitution read with Article 46 of the Constitution and, therefore, the petitioner are entitled to have the same enforced. The admission rules approved vide Government Resolution dated 18.5.2002 are procedural rules which are not issued under Article 15(4)of the Constitution or under any statutory law but are mere executive instructions whereas the Government Resolution dated 15.6.2001 is issued under Article 15(4) of the Constitution and, therefore, the said circular is higher than the procedural rules published in the Government Resolution dated 18.5.2002. 6.2 Once the State Government has issued resolution dated 15.6.2002 prescribing that vacant seats of ST quota should be made available to the NT/DNT candidates, the authorities in charge of admissions to medical colleges have no other alternative but to follow the said resolution and the Health Department is bound by the said Government Resolution dated 15.6.2002. 6.3 Rule 2.5 of the Admission Rules has been the same from 1995 onwards and the same has already been interpreted by this Court in Shah Dimple vs. State of Gujarat, 1999(2) GLR 1491 wherein this Court has held that the words "are not available for the reserved seats for such community/category" clearly and unambiguously convey that the reserved seats for Scheduled Castes, Scheduled Tribes and SEBC have to be exhausted from amongst the reserved classes in the first instance and then only they would go to the unreserved categories of students. 6.4 In Dr KS Naik vs. Dr DN Shah, Dean Vadodara Medical Colleges, 2001(3) GLH 725, this Court has held that NT/DNT and SEBC are not mutually exclusive categories and, therefore, the Government is not justified in taking the view that NT/DNTs included in the SEBC category can not be given the benefit of unfilled seats from the quota reserved for Scheduled Tribes. 6.5 As per the Gujarat Government Rules of Business, 1990 and the instructions issued thereunder, it is the Social Welfare and Tribal Development Department (now known as Social Justice and Empowerment Department) which is entrusted with the administrative machinery for backward classes, social