IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18/03/2003 CORAM THE HON'BLE MR. JUSTICE K. SAMPATH W.P.No.43590 of 2002 and W.P.M.P.No.64079 of 2002 Helen, P. W/o J. Jebasingh, No.30, Gokhale Road, Sokkikulam, Madurai  2. ... Petitioner -Vs- 1. The Secretary to Government, Government of Tamil Nadu, Backward Classes and Most Backward Classes Welfare Department, Fort St. George, Chennai  600 009. 2. The Director of Medical Education, EVR Periyar High Road, Kilpauk, Chennai  600 010. 3. The Secretary, Selection Committee, Directorate of Medical Education, 162, EVR Periyar High Road, Kilpauk, Chennai  600 010. 4. The Secretary, Medical Council of India, New Delhi. ... Respondents !For Petitioner ... Mr.S. Natarajan ^For Respondents ... Mr.V.R. Rajasekaran. Special Government Pleader (Edn.) This writ petition is filed under Article 226 of the Constitution of India for a writ of mandamus as stated therein. :ORDER By consent the main writ petition itself is taken up. 2. The prayer is for a mandamus to the respondents to allot one seat to the petitioner in the Post Graduate Course for the Academic Year 2002-2003 from the increased 3 seats as per the prospectus as directed by this Court in W.P.No.18200/2002 dated 13-8-2002 and as modified on 25.10.2003. 2. The petitioner's case is as follows: She completed her M.B.B.S. Course during February, 1994. She also got her Diploma in Obstetrics and Gynaecology. She got selected through Tamil Nadu Public Service Commission in April, 1999 and is now working as Assistant Surgeon in the Government Hospital, Melur. She has also completed the required two years of service in the Primary Health Centre. She became eligible to apply for Post Graduate Degree Course. She also applied for the same for the year 2002-2003. She belongs to Nadar Christian Community, which is a Backward Community. She is eligible to compete with other students of open category on merits also. In the entrance examination held for admission to Post Graduate Courses for the year 2002-2003 her rank among the service candidates was 61, her entrance test mark being 63.60. By communication dated 17-4-2002, she was called for counselling on 29-4-2002 by the Selection Committee. She attended the same and opted for Post Graduate Degree in Obstetrics and Gynaecology. She was told that all the seats for open category and backward class were filled up and that her position in open category in waiting list was No.2 for Post Graduate Degree in Obstetrics and Gynaecology. She opted to stay in the waiting list, so that there was possibility of being accommodated in case seats were available. Though there were seats available for other disciplines, she did not opt for them. She was willing to wait and take a chance. As per clause 29 of the Prospectus, since a candidate has to appear for counselling only once, even if seats are available in future in Post Graduate Degree in Obstetrics and Gynaecology, she would not be called for second counselling had she joined in some other Post Graduate Degree Course. She chose to wait, even at the risk of losing the available Post Graduate Degree Course. As per the Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes ( Reservation of Seats in Educational Institutions and of appointments or Posts in the Services under the State) Bill, 1993, which later became Act 45 of 1994 and was included in the Ninth Schedule to the Constitution by the Constitution (Seventy Sixth Amendment) Act, 1994 enacted by the Parliament to get protection under Article 31-B of the Constitution. The percentage of reservation as stipulated in the Prospectus is as follows: Open Competition (OC): ... 31% Backward Class (BC): ... 30% Most Backward Class (MBC)... 20% Scheduled Caste (SC): ... 18% Scheduled Tribe (ST) ... 1% This Act was challenged before the Supreme Court in INDRA SAWHNEY VS. UNION OF INDIA (1992 Supp.3 SCC 217). The Supreme Court gave an interim direction to create additional seats equal to the number of seats, which the open category candidates have been denied selection because of the 69% policy. Similar directions are being issued from the Academic Year 1994 onwards by the Supreme Court. An attempt was made to seek amendment of the orders before the Supreme Court. The Supreme Court rejected the request for variation of the earlier order in VOICE (CONSUMER CARE) CUNCIL VS. STATE OF TAMIL NADU (1996(11) SCC 7 40). As the direction of the Supreme Court was not complied with, the writ petitioner filed W.P.No.18200/2002 to increase the number of seats and to allot one seat to her. By order dated 13-9-2002 this Court directed the respondents to take action expeditiously for implementing the direction of the Supreme court in respect of admission to Post Graduate Course for the year 2002-2003 and to give a seat to the petitioner if she was found eligible or fell within the minimum or cut off mark. As no steps were taken by the respondents, the petitioner made a representation on 2.9.2002. The third respondent sent a communication dated 11.9.2002 stating that by applying 69%, it is 4 seats for service quota and that as per the direction of the Supreme Court and the High Court, by applying 50% the total seats in M.D. (O&G) is modified as 7 for service quota in open category, that the cut off mark by applying 69% and 50% reservation is 65.68 and 64.61 respectively and that as the petitioner's cut off marks was 63.60, she did not fall within the eligible zone for consideration for admission. It is clear that 3 seats are to be filled up from the service candidates in open competition and the 3 seats have to be filled up from the candidates, who had opted for being in the waiting list without going for any other speciality. The petitioner is eligible for allotment in the increased seats. By order dated 13-8-2002 this Court has clarified that the procedure shall be as per the prospectus and if as per the prospectus she is eligible, she will be given a seat. There is no provision for applying cut off mark in the selection in the Post Graduate Course and as the seats are filled up by the process of counselling depending upon the availability and option of the candidates, fixing the cut off marks is misnomer. All the seats are to be filled up from the available candidates in the waiting list. Subsequent correspondence having failed to evoke any response, the present writ petition has been filed. The writ petitioner is entitled to allotment of a seat in Obstetrics and Gynaecology Course. 3. The third respondent has filed a detailed counter and also given tables showing the position of the various candidates and their eligibility. It is stated in the counter that the Selection Committee as per the policy of the State Government, has completed the selection for Post Graduate admission following 69% Rule of Reservation. As per the rank position of the petitioner, she was placed as Serial No.6 in the waiting list for inservice candidates. The total marks scored by the last candidate both under open category and the service category and the mark scored by the petitioner are shown in the tables set out: TABLE  1 OOC CATEGORY (OPEN OPEN COMPETITION) 69% RULE OF RESERVATION -------------------------------------------------------- E.E.No. Name of Community Status Total Selected Candidate marks Community -------------------------------------------------------- 10128 Kavitha Chenthil BC PRI 72.25 OOC 14890 Hima Bindu, P. OC PRI 72.03 OOC 10378 Renuka Devi, B. BC PRI 71.41 OOC 13836 Deepa, S. BC SER 71.41 OOC 12146 Helen,P. BC SER 63.60 Wait List -------------------------------------------------------- TABLE - 2 SOC CATEGORY (SERVICE OPEN COMPETITION) 69% RULE OF RESERVVATION -------------------------------------------------------- E.E.No. Name of Community Status Total Selected Candidate marks Community -------------------------------------------------------- 12851 Cordelia Boaz BC SER 67.12 SOC 15354 Sujjanna, A.L. Manuel BC SER 66.85 SOC 13252 Sumithra, D. BC SER 66.04 SOC 10349 Malarselvi, J. BC SER 65.68 SOC 12146 Helen,P. BC SER 63.60 Wait List -------------------------------------------------------- TABLE  3 OOC CATEGORY (OPEN OPEN COMPETITION) 50% RULE OF RESERVATION -------------------------------------------------------- E.E.No. Name of Community Status Total Selected Candidate marks Community -------------------------------------------------------- 10128 Kavitha Chenthil BC PRI 72.25 OOC 14890 Hima Bindu, P. OC PRI 72.03 OOC 10378 Renuka Devi, B. BC PRI 71.41 OOC 13836 Deepa, S. BC SER 71.41 OOC 10389 Chandrakala, C. BC PRI 70.85 OBC 12680 Latha, T.s. BC PRI 70.59 OBC 11173 Devi, A. BC PRI 69.88 OBC -------------------------------------------------------- TABLE  4 SOC CATEGORY SERVICE OPEN COMPETITION) 50% RULE OF RESERVATION -------------------------------------------------------- E.E.No Name of Community Status Total Selected Candidate marks community -------------------------------------------------------- 12851 Cordelia Boaz BC SER 67.12 SOC 15354 Sujjanna, A.L. Manuel BC SER 66.85 SOC 13252 Sumithra, D. BC SER 66.04 SOC 10349 Malarselvi, J. BC SER 65.68 SOC 13812 Kasthuri, V. BC SER 65.14 SBC 10859 Suresh, K. BC SER 65.13 SBC 15326 Ammani, T. BC SER 64.61 SBC 12146 Helen, P. BC SER 63.60 Wait List --------------------------------------------------------- As per Table-4, it would be clear that the petitioner did not score the required marks for being admitted either under the open category or as an inservice candidate. Even if the communal reservation is restricted to 50%, then cut off marks for the last candidates eligible for admission under open category would be 69.88, which is higher than the marks scored by the petitioner. Likewise, if 60% reservation is applied for the seats meant for service category, the cut off marks would be 64.61. The petitioner is not coming within the zone of consideration for admission in M.D. (O & G) Course for the Academic Year 2002-2003 under any one of the two methods of admission stated above. The details of the seat allocation for open category (Non-Service) as per the 69% Rule of Reservation are as follows: OPEN COMPETITION (NON-SERVICE) (Both Private and Service Candidates are eligible) TOTAL SEATS  14 Apportionment of seats as per 69% Reservations --------------------------------------------------------- Category Total Seats OC BC MBC SC ST --------------------------------------------------------- Percentage 31% 30% 20% 18% 1% Seats available in open category 14 4 4 3 3 - Cut off marks - 71.41 69.81 65.80 63.64 - --------------------------------------------------------- In the case of open competition (Non-service), both private and service candidates are eligible. In the case of seats meant for service candidates, only service candidates are eligible. The tabular statement below shows the apportionment of seats as per 69% Rule of Reservation. SERVICE (Service candidates alone are eligible) TOTAL SEATS  14 Apportionment of seats as per 69% Rule of Reservation ---------------------------------------------------------- Category Total OC BC MBC SC ST Seats ---------------------------------------------------------- Percentage 50% 31% 30% 20% 18% 1% Seats avail- able in open category 14 4 4 3 2 - Cut off marks 65.68 64.23 59.83 57.79 - ---------------------------------------------------------- The petitioner having scored 63.60, which is less than 64.61, the cut off marks for open (Service) under 50% Rule of Reservation, she is not eligible for claiming admission for the seats exclusively set apart for service candidates as per 50% Rule of Reservation. The petitioner is under misconception that three seats were created under open category both for the open (Non-service and service) candidates as well as open (Inservice) candidates for the purpose of implementing 50 % Rule of Reservation. The question of creating an additional seat under open Non-service category as per 50% Rule of Reservation would arise only when the petitioner scores more than the cut off marks 69.88 fixed under 50% Rule of Reservation for open (Non-service and service) candidates. Likewise, the creation of an additional seat under open inservice category as per 50% Rule of Reservation would arise only when the petitioner scores more than the cut off marks 64.61 fixed under 50% Rule of Reservation for inservice candidates. The general rank has no bearing for the individual wait list. The petitioner is making a claim as if three additional seats were created for inservice open category candidates for the purpose of implementing 50% Rule of Reservation. The necessity to create any seat to accommodate the petitioner by implementing 50% Rule of Reservation does not arise for the reason that the petitioner scored only 63.60 marks, which is less than the cut off marks. 4. A reply affidavit has been filed by the writ petitioner reiterating the contents in the main affidavit. It is stated in the reply that the averment that the petitioner is placed sixth in the waiting list is far from truth. Four persons, viz. (1) Kasthuri, V. (2) Suresh, k. (3) Ammani, T. as shown in the Table-4 of the counter and another person Anitha Virgin Kumari, who had been already allotted seats under the BC have been purposely taken into account to eliminate the petitioner and others in the wait list. When filling up the increased seats, there is no question of taking into account the persons, who have been already selected. The seats have to be increased by 19% and have to be filled up from the non-selected candidates according to their wait list following clause 29 of the Prospectus. Following is the list of service candidates, who have opted for M. D. (O & G) under 69% reservation: ---------------------------------------------------------- S. Rank Name of candidate Community Marks Selected No. in Community merits list ---------------------------------------------------------- 1. 168 Cordelia Boaz BC 67.12 SOC 2. 193 Sujjanna A.L. Manuel BC 66.85 SOC 3. 234 Sumithra, D. BC 66.04 SOC 4. 264 Malar Selvi, J. BC 65.68 SOC 5. 289 Kasthuri BC 65.14 SBC 6. 290 Suresh, K. BC 65.13 SBC 7. 318 Ammani, T. BC 64.61 SBC 8. 343 Anitha Virgin Kumari BC 64.23 SBC 9. 375 Karpagam Shanmugam BC 63.88 Wait List 10. 392 Helen, P. BC 63.60 Wait List 11. 399 Anbu Selvi, T. BC 63.41 Wait List 12. 419 Mallika, K.S. BC 63.19 Wait List ----------------------------------------------------------- In the above list, the first four persons, i.e. up to Malar Selvi, J. were selected under the O.C. category and next four, i.e. up to Anitha Virgin Kumari were selected under the BC category. The petitioner being the tenth person was kept under waiting list No.2, both under open as well as under BC categories. After filing of this writ petition, the ninth person Karpagam Shanmugam has been selected under All India Quota and the petitioner's position now is waiting list No.1 in OC and BC categories. This is also fortified by the fact that when one open competition category seat fell vacant due to non-joining of a selected candidate called Kavitha, as per the procedure, wait list No.1 from non-service and wait list No.1 from inservice candidates were called for counselling on 27-12-2002. The petitioner being No.1 in the wait list for service candidate, was called for counselling by communication dated 21-12-2002. She also attended the counselling. But, non-service candidate was selected in the counselling. If the petitioner was not in the wait list No.1 for inservice, she would not have been called for counselling at all. The effect of the judgment of the Supreme Court in VOICE (CONSUMER CARE) COUNCIL VS. STATE OF TAMIL NADU (1996(11) SCC 740) is only to increase the number of seats equal to the number of candidates, who have been denied because of 69% reservation. It is only for the purpose of calculating the number of seats to be increased, the so called cut off mark can be relevant, but not to eliminate the already selected candidates under 69% quota nor the position of the wait listed candidates. The respondents are bound to increase the three seats as stipulated in the VOICE ( CONSUMER CARE) COUNCIL case by the Supreme Court and they could not find out some ground to get away from that. Even assuming without accepting that the mode of selection is to be on the basis of the presumptive cut off marks as averred in the counter affidavit, the petitioner would be eligible for allotment as she is coming within the cut off mark for BC quota. The respondents, who have ventured to find out the presumptive cut off mark for OC, had the 50% reservation been followed, have conveniently failed to see that position of the petitioner among the service candidates being 10, is eligible for allotment under the BC quota. The respondents have conveniently omitted to say about filling up of the seats in BC category, after filling up the OC category with the already selected candidates under the BC category. After the seventh candidate Ammani, Anitha Virgin Kumari is the eighth candidate, Karpagam Shanmugam the ninth and the petitioner is the tenth. Since Karpagam Shanmugam has already joined in All India Quota, the petitioner comes next to Anitha Virigin Kumari under the BC category. The respondents are disobeying the order of the Supreme Court. The respondents having admitted in the communication dated 11-9-2002 that three seats are increased for SOC as per the direction of the Supreme Court and the High Court, are estopped from taking the stand that seats need not be increased. The writ petition has to be allowed. 5. The learned Counsel for the petitioner and the learned Special Government Pleader were at pains to explain their respective stands with tabular statements. Heard arguments on both sides. 6. The Supreme Court in VOICE (CONSUMER CARE) COUNCIL VS. STATE OF TAMIL NADU (1996(11) SCC 740) explained the purport of its earlier order dated 18-8-1994 as follows: "First, make the admissions applying the rule of 69% reservation in favour of Backward Classes, Schedule Castes and Scheduled Tribes. Second, the additional seats created by virtue of the orders of this Court be filled with the general category candidates. The number of seats so created was equal to the number of seats which the general candidates would have got if the rule of fifty per cent total reservation had been applied." The Supreme Court further explained as follows: "This order in effect respected the rule of 69 per cent devised by the Government of Tamil Nadu  and sanctioned by the Tamil Nadu Act 45 of 1994  while, at the same time, removing the grievance of the general category candidates by creating additional seats for them for that year. In other words, the sanctioned strength of seats in every college are being allotted exclusively in accordance with the sixty nine per cent reservation rule. Only the additional seats, which are created by and only because of the orders of this Court are being provided to general category candidates on the basis of merit, which category includes Backward classes, Scheduled Castes and Scheduled Tribes as well. It is significant to notice in this connection that according to the figures supplied by the Government of Tamil Nadu for the Academic Years 1993-94 and 1994-95, more than eighty per cent of the seats in the general category are being taken away by the students belonging to Backward Classes on the basis of their own merit. As fully explained and illustrated in the order dated 18-8-1994, the students belonging to Backward Classes are getting fifty per cent of the total seats on the basis of reservation and more than 80 per cent of the seats in the general category (open competition category) on the basis of their own merit. There is no reason to believe that the situation is different this year. Thus, the bulk of the additional seats directed to be created by this Court year after year (since 1994-95) are again going to students belonging to Backward Classes. The order of this Court is thus not only upholding the rule of fifty per cent ceiling on reservation affirmed by the Special Bench of this Court in INDRA SAWHNEY VS. UNION OF INDIA (1992 SUPP.(3) SCC 217), but is in truth operating to the advantage and benefit of a number of Backward Class students. Many of the Backward Class students, along with certain other candidates belonging to non-reserved categories, who would not have otherwise got admission into these courses, are getting seats by virtue of these orders. ....... Only as an interim measure, certain additional seats are being created and they are being allotted to general category candidates  which in Tamil Nadu really means providing the bulk of them to students belonging to Backward Classes." 7. The Tabular statement below shows the position as per 69% Rule of Reservation. P.G. Degree/Diploma Courses 2002-2003 Wait listed and selected candidates under Service SOC Category E.Subject Code: 27 M.D. Obstetrics and Gynaecology Sl. No. Ent.No. Name x Total SER/PRI 1 12851 Cordelia Boaz BC 67.12 Ser Select under SOC 2 15354 Sujanna A.L. Manuel BC 66.85 Ser Select under SOC 3 13252 Sumithra D BC 66.04 Ser Select under SOC 4 10349 Malar Selvi J BC 65.68 Ser Select under SOC 5 13812 Kasthuri V BC 65.14 Ser Select under SOC 6 10859 Suresh K BC 65.13 Ser Select under SOC 7 15326 Ammani T BC 64.61 Ser Select under SOC 8 15375 Anitha Virgin Kumari BC 64.23 Ser 9 13573 Karpagam Shanmugam BC 63.88 Ser 10 12146 Helen, P. BC 63.60 Ser 11 13493 Gayathiri, M. MBC 61.27 Ser 12 12365 Indirani, T.V. MBC 60.81 Ser 13 14840 Vinitha Padmini Mary BC 60.37 Ser 14 10765 Sugam, S.R. BC 60.17 Ser 15 12940 Shanthi, K. MBC 59.83 Ser 16 12990 Hemamalini, V. MBC 59.44 Ser 17 11578 Abiramavalli, K. MBC 58.81 Ser 18 14334 Thangathai, S. SC 58.59 Ser 19 11962 Gomathi, P.K. BC 58.30 Ser 20 14287 Vijaya, B. SC 57.93 Ser 21 12128 Yasodharani, T. BC 57.85 Ser 22 15154 Boopathy, K. SC 57.79 Ser 23 13843 Krishna Kumari, V. MBC 57.57 Ser 24 12334 Vijayalakshmi, C. BC 56.89 Ser 25 11637 Subha, S.S. BC 56.06 Ser Note: x  Community 8. The petitioner figures as No.10. The total number of candidates, who got selected on account of 69% Rule of Reservation is 4 and the candidates are (1) Cordelia Boaz, (2) Sujjanna A.L. Manuel, (3) Sumithra, D. and (4) Malar Selvi, J. By reason of the increase in the number of seats as per the direction of the Supreme Court, 3 candidates (1) Kasthuri, V. (2) Suresh, K. and (3) Ammani, T. got into the bandwagon. It is the case of the petitioner that Anitha Virgin Kumari gets the eighth seat, Karpagam Shanmugam the ninth and Karpagam Shanmugam having got a seat in the All India wait, the petitioner comes next to Anitha Virgin Kumari and she is entitled to get a seat. 9. The list of the 28 admitted candidates furnished by the learned Special Government Pleader is as follows: P.G. Degree/Diploma 2002-2003 Session List of Selected Candidates for P.G. DEG/DIP Courses 2002-2003 Session Course Code: 27 Course Name: M.D. Obstetrics and Gynaecology Total Seats: 28 Open: 14 Service: 14 Open Quota Seats: OC: 4 BC: 4 MBC: 3 SC:3 Sl No Reg. No Name of the Candidate Com Ser/ Pri TMark X 1 10128 Kavitha Chenthil BC Pri 65.25 7 72.25 OOC 01 2 14890 Hima Bindu, P. OC Pri 69.03 3 72.03 OOC 01 3 10378 Renuka Devi, B. BC Pri 70.47 1 71.47 OOC 01 4 13836 Deepa, S. BC Ser 67.41 4 71.41 OOC 01 5 10389 Chandrakala, G. BC Pri 68.85 2 70.85 OBC 02 6 12680 Latha, T.S. BC Pri 67.59 3 70.59 OBC 07 7 11173 Devi, A. BC Pri 65.88 4 69.88 OBC 03 8 12579 Deepa, G.S. BC Pri 63.81 6 69.81 OBC 07 9 10411 Anuradha, M. MBC Pri 68.40 1 69.40 0MBC 01 10 10144 Nalli Chandra, R. MBC Ser 60.12 6 66.12 0MBC 01 11 11496 Geetha Rani, S. MBC Pri 64.80 1 65.80 0MBC 05 12 12829 Kalamani, M. SC Ser 59.31 5 64.31 OSC 07 13 10015 Mirunalini, S. SC Pri 63.27 1 64.27 OSC 01 14 11901 Suganya Devi, S. SC Pri 62.64 1 63.64 OSC 02 15 12851 Cordelia Boaz BC Ser 60.12 7 67.12 SOC 01 16 15354 Sujjanna A.L. Manuel BC Ser 59.85 7 66.85 SOC 03 17 13252 Sumithra, D. BC Ser 59.04 7 66.04 SOC 01 18 10349 Malar Selvi, J. BC Ser 58.68 7 65.68 SOC 01 19