IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6975 of 2005 For Approval and Signature: HON'BLE MS.JUSTICE H.N.DEVANI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 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? -------------------------------------------------------------- PRITI AGARWAL Versus GOVERNMENT COLLEGE BHAVNAGAR -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6975 of 2005 MR CL SONI for Petitioner No. 1-2 MR DIPEN DESAI, AGP for Respondent No. 1,8 DS AFF.NOT FILED (N) for Respondent No. 2 NOTICE SERVED BY DS for Respondent No. 3-4,7,9 MR GM JOSHI for Respondent No. 5-6 MR MITUL K SHELAT for Respondent No. 10 -------------------------------------------------------------- CORAM : HON'BLE MS.JUSTICE H.N.DEVANI Date of decision: 25/05/2005 C.A.V. ORAL JUDGEMENT 1. By this petition, the petitioners seek the following principal reliefs : (A) be pleased to admit and allow this petition ; (B) be pleased to quash and set aside the action of the respondent of deciding to fill in the seats of P.G.Medical Course of All India quota reverted to the state in the respondent college by applying roster by issuing suitable writ, direction and/or order under Article 226 of the Constitution of India; (C) be pleased to direct the respondent to fill in the seats of P.G.Medical Course of All India quota reverted to the state in the respondent college only from the open category/general category on merit by reshuffling the entire allotment of seats of the said quota and further direct the respondent to allot the seats to the petitioners on such reshufflement on the basis of their merit by issuing suitable writ, direction and/or order under Article 226 of the constitution of India ; (F) be pleased to quash and set aside the action of the respondent in applying roster for reservation to all the seats in P.G.Medical Course without first deducting 50% seats for All India Quota and further quash and set aside the action of the respondent No.1 in earmarking seat in Paediatric subject for SEBC while sending to all India Quota. (G) be pleased to hold and declare that the respondent no.1 is required to send one seat in each subject to All India quota if there are more than one seat in such subject by issuing suitable writ, direction and/or order under Article 226 of the Constitution of India. (H) be pleased to hold and declare that 50% of total P.G.Seats without any exclusion are required to be sent for All India Quota before applying roster for reservation, by issuing suitable writ, direction and/or order Under Article 226 of the Constitution of India. (I) be pleased to direct the respondent no.1 to allot the seat in Paediatric subject shown to be reserved for SEBC and sent to All India quota and now reverted to State to the candidate belonging to General Category by issuing suitable writ, order or direction under Article 226 of the Constitution of India. (J) be pleased to direct the respondent to cancel the admission given on seats in Opthalmology and Anatomy to SEBC ST Category candidates respectively by issuing suitable writ, direction and/or order under Article 226 of the Constitution of India. 2. The petitioners who have passed their M.B.B.S. Examination in August 2003, have applied for admission to the Post Graduate Medical course in the respondent No.1 Medical College ("respondent College") in March, 2005. In all there are 12 seats to the said course in the said College, out of which 50%, i.e. 6 seats are reserved for the All India quota. 2.1 As per the program of allotment, once a candidate is allotted a seat in the interview, he is required to report and join for admission within 15 days from the date of interview, but not later than 6th April, 2005. It appears that out of the 6 seats reserved for the All India quota, 2 students namely Anju Sarupria and Munish Kumar whose dates of interview were 12th March 2005 and 18th March 2005, respectively, did not join till 6th April 2005, hence, the said two seats (Paediatrics-MD and Anaesthesiology-MD) have reverted back to the State to be filled by local students. 2.2 It is the case of the petitioners that the seats which remain vacant in the All India quota, upon their reverting back to the State are required to be filled by allotting the same to students belonging to the open category. That, three other seats from the All India quota are likely to be available, as the candidates who have been allotted those seats have been accommodated elsewhere. 2.3 It is also the case of the petitioners that the petitioner No.1 and 2, rank 4th and 2nd respectively, in the merit list. That by a communication dated 8th April, 2005, the petitioners had requested the said college to transfer the unfilled All India category seats to the open category and to place the same on the notice board. That, the petitioners were informed that by virtue of a stay order granted by the Supreme Court, the said seats were not to be filled up. However, on 15th April the petitioners came to know that the State was permitted to fill up the seats. That, the petitioners, therefore, approached the Dean of the respondent College and requested him to fill the said seats from the open category, but were informed that the same would be filled by applying the roster, and that therefore, out of the two seats, one seat would go to the reserved category and will not be available to the general category. 2.4 It is in the aforesaid circumstances, that the petitioners have approached this Court by way of the present petition, challenging the action of the respondent college of filling the seats that have reverted back from the All India Quota to the State as per the roster, and seeking a direction against the respondent college to fill in the said seats from amongst the candidates belonging to the open category, strictly in accordance with merit by reshuffling the entire allotment of seats from number one onwards. 3. Initially, the respondent No.1 college had been impleaded as the sole respondent to the petition. By an order dated 21st April, 2005 notice was issued and by way of ad-interim relief it was directed that admission in PG Medical courses of Paediatrics (MD), Anaesthesiology (MD), General Medicine, MS General Surgery, MS Ophthalmology will be subject to further orders that may be passed by this Court in the present petition. That if any admission is given, the respondent must inform the candidate/student with regard to the same. 3.1 Subsequently by different orders, several other parties were permitted to be impleaded as respondents. In all there are 10 respondents to the present petition. 4. In response to the notice issued by this Court, on behalf of the respondent No.1, the Dean Medical College, Bhavnagar has filed an affidavit in reply dated 27th April, 2005 opposing the petition. 4.1 It has been stated in the said reply affidavit that the petitioners have already been granted admission to the post graduate medical course. That, the petitioner No.1 Dr. Priti Agarwal has been granted admission to the Preventive and Social Medicine (PSM) course and the petitioner No.2 Dr. Deepmala Budhrani has been granted admission to the Anaesthesia general category seat, out of the seats which had reverted back from the All India quota. That the petitioners having already been granted admission may not be permitted to raise any grievance before this Court. 4.2 It is further stated that by way of a resolution of the Health and Family Welfare department of the Government of Gujarat, a policy has been adopted of implementing the running roster and accordingly, candidates belonging to the reserved category are given admission in accordance with the running roster points. It is stated that roster points are decided as per the said Resolution and accordingly seats are reserved for candidates belonging to the Scheduled Castes/Scheduled Tribes and Socially and Educationally Backward Classes. That the notification dated 17.03.2005, inviting applications for admission to the Post Graduate Medical Courses in the respondent No.1 College, itself provided for the manner in which the roster was to be operated and specified the seats which were reserved for the aforesaid categories. 4.3 It is also stated that as per the decision of the Hon'ble Supreme Court in the case of Saurabh Chaudri and others v. Union of India, 50% of the approved seats for P.G. Course are required to be allocated to the All India quota candidates. That pursuant to the said decision the Directorate General of Health Services (D.G.H.S.) had by a letter dated 7th December, 2004 instructed the Principals/Deans of all the Medical colleges to furnish information about 50% All India quota after excluding the seats validly reserved for the SC/ST etc., to the Directorate. 4.4 That in compliance with the aforesaid instructions the respondent college had allocated 6 seats (50% of the total seats) to the DGHS which are as shown below: _________________________________________________________ Anatomy Anaes- Medi Ophthal- Padea- Surgery thesia cine mology trics ________________________________________________________ General Gen. Gen. Gen. SEBC Gen. _________________________________________________________ It is further stated that the said exercise was undertaken under the mistaken belief and wrong understanding of the decision of the Hon'ble Supreme Court as well as the instructions received from the D.G.H.S. That as per the instructions contained in the letter dated 7.2.2005, 50% seats excluding the seats that were reserved for the candidates belonging to the reserved categories were to be allocated to the All India quota candidates. However, by mistake, 50% of the total seats were allocated to the All India quota by the college authorities. 4.5 It is also stated that out of the six seats allocated to the All India quota, admission had been granted to 5 seats; and that the remaining seat i.e. in the subject of Anatomy was not filled up and that the same would be filled in on 3rd May 2005, on reshuffling by the D.G.H.S., and that the said seat had not reverted back to the State quota. 4.6 It is further stated that out of the aforesaid five seats for which admission had been granted by the D.G.H.S., two students namely Anju Sarupria (Paediatrics) and Munish Kumar (Anaesthesiology) did not report for admission, and accordingly the said seats had fallen vacant. That by a letter dated 18th April 2005, the D.G.H.S. had informed that the States are permitted to fill up the seats reverted to them on account of seats of the All India quota having fallen vacant on the selected candidates not having joined the courses. 4.7 It is the case of the respondent college as stated in the reply, that the seats that had fallen vacant on account of non-joining of All India quota candidates had reverted back to the State quota and were required to be filled in by the State. That since the seats which belonged to the reserved category had also been allocated to the All India quota, and the seat in the subject of Paediatrics which originally belonged to the reserved category and was wrongly allocated to the All India quota, upon reverting to the State quota was filled in by applying the roster and accordingly one Mr. Gajjar Jayesh who belongs to the SEBC category, had been given admission against the said seat. 4.8 It is also submitted that if the reliefs as prayed for in the petition are granted, the same would tantamount to reducing the reservation for the SEBC category, as 27% seats are reserved for the said category and that any action changing the percentage of reservation would result in breach of the provisions of the Constitution of India. 5. Mr. Amit M. Panchal, learned Advocate appearing on behalf of the petitioners, contended that the two seats that have reverted to the State are required to be filled in from the open category of students. It was submitted that as per the law settled by the Hon'ble Supreme Court, 50% of the Post Graduate seats, without any exclusion were to be made available for the All India quota. It was urged that the roster for reservation can be applied to the remaining 50% seats within the State quota only, after deducting 50% seats for the All India quota. 5.1 It was pointed out that the respondent college had first applied the roster point to all the seats and then decided to send 50% seats to the All India quota. That, by applying the roster to all the seats, the seat in respect of the subject of Paediatrics was shown as reserved for ST and SEBC. That, the seat in the subject of Paediatrics, that was shown to be reserved for SEBC as per the roster, was sent to the All India quota. That, once the said seat formed part of the 50% seats meant for the All India quota, the same could not have been shown to be reserved for SEBC. It was, therefore, contended that the respondent college had committed grave error in treating the seat for the subject of Paediatrics as reserved for SEBC though the same was earmarked for the All India quota. 5.2 It was further submitted that the reservation is always applicable to the seats available with the State and cannot be applied to the All India quota. That, 50% clear seats without any reservation from 12 seats were meant for the All India quota, meaning thereby that out of 12 seats, 6 seats were meant for the All India quota, therefore, the roster could not be made applicable to any of the seats of the All India quota. 5.3 It was also submitted that if more than one subject is available in a particular subject, then, 50% of those seats are to be taken into consideration while sending seats to the All India quota. That, if the roster is applied first to all the seats without first deducting 50% seats for the All India quota, then in a given case out of the total subjects, half of the subjects would not be available to the students of All India quota to make a choice out of those subjects. That, therefore, the students would be left with having to make a choice from the remaining subjects only. That the respondents could not have applied the roster to all the seats and could not have reserved both the seats for the subject of paediatrics. 5.4 It was strenuously urged that after allotment of 50% of the total available seats to the All India quota, without any exclusion, only six seats would remain for being filled up by the Bhavnagar University, which ought to have been filled up by moving a single roster point. It was submitted that accordingly, the seats of Anatomy and Ophthalmology belong to the General category but the said seats had been allotted to SEBC and ST category respectively, in the interview held on 20.4.2005. 5.5 The attention of the Court was drawn to the Notice/Circular dated 17th March, 2005 issued by the Dean, inviting applications for admission to the PG Medical Course, and it was submitted that the said notice clearly stipulates that in case the post (seat) reserved for the respective category remains vacant due to non-availability of candidate, it will be filled from the open merit. That, therefore, the respondent could not have acted contrary to the said rule. Attention was also drawn to the admission rules of Gujarat University and South Gujarat University, and it was submitted that the said universities also have similar rules that are being followed by them. That, therefore, the action of the respondent college in deciding to fill the vacant seats of P.G. Medical Course of the All India quota by applying the roster was not in accordance with the rules, and accordingly the respondents may be directed to fill the seats from the open category by reshuffling the entire allotment of seats from merit number one onwards. 5.6 Strong reliance was placed upon the decision of this Court in the case of Shajul George v. State of Gujarat reported in 1997(2) GLR 1250 with particular reference to the contents of paragraph 20 thereof, for the proposition that reservation can be made from the seats available for the State quota only after earmarking the seats for the All India quota. 5.7 Learned Counsel, Mr. Panchal also relied upon the order dated 28th February, 2005 passed by the Supreme Court in the case of Buddhi Prakash Sharma v. Union of India in Writ Petition (Civil) No.18/2005, wherein it has been observed that the letter dated 7th December 2004, issued by the DGHS shows total non-application of mind. That, it was not in dispute that till 2004-2005, when All India quota of seats was 25%, the number of post graduate seats were worked out on the basis of the total seats without any exclusion, and that the aforesaid letter dated 7.12.2005 requiring the information about the All India quota after excluding the reserved seats had created a mess. The Court directed, that the total number of Post Graduate seats on All India basis would be 50% of the total seats without any exclusion and the calculation would be done on the same basis which was adopted when All India quota was 25%. 5.8 Learned Counsel submitted that the respondent No.1 had sent the information regarding seats available for the All India quota in pursuance of the instructions contained in the aforesaid letter dated 7.12.2005, hence, the All India quota was required to be earmarked in accordance with the aforesaid directions of the Supreme Court. That, accordingly after earmarking the All India quota as per the aforesaid directions, the seats that have reverted to the State are required to be treated as open seats and filled in by general category students. 6. Mr. Dipen Desai, Learned Assistant Government Pleader reiterated the averments made in the affidavit in reply and submitted that the action taken by the respondent college was in accordance with the rules and was also in consonance with the aforesaid directions of the Hon'ble Supreme Court. The learned Assistant Government Pleader referred to the letter dated 7th December, 2004 issued by the Directorate General of Health Services, whereby the Principal/Dean of the all Government Medical Colleges were requested to furnish information about 50% All India quota seats in various M.C.I. recognized/approved PG courses after excluding the seats validly reserved for SC/ST etc. to the Directorate. It was submitted that at the relevant time, on a wrong understanding of the said instructions, instead of sending 50% seats to the All India quota after excluding the seats reserved for reserved candidates, 50% of the total available seats had been allocated to the All India quota. 6.1 It was submitted that except that one of the seats reserved for the SEBC had been allocated to the All India quota, the remaining seats allocated to the All India quota were in consonance with the directions contained in the aforesaid order dated 28th February 2005, of the Supreme Court, upon which reliance has been placed on behalf of the petitioner. 6.2 Ld. Assistant Government Pleader submitted that upon reversion of a vacant seat to the State, the same would form part of the State quota and was required to be filled in by applying the roster. It was also submitted that the reference to post reserved for the respective category in admission notice dated 17th March 2005, would mean only the posts reserved for candidates belonging to the SC, ST and SEBC categories, and that the same did not include the All India quota. Hence, in case a post reserved for the respective category, namely, SC, ST or SEBC remained vacant due to non-availability of the candidate, the same was required to be filled from the open merit list. However, the same would not be applicable to seats remaining vacant due to non-availability of candidate in the All India quota as the said seats could in no manner be termed as reserved posts. It was submitted that the term "post reserved" was required to be read in conjunction with the earlier part of the notice wherein the term reserved has been used in the context SC, ST and SEBC categories alone. 6.3 It was submitted that by mistake a seat reserved for the SEBC as per the roster had been allocated to the All India quota, however, upon the same reverting to the State, the same had rightly been filled in by a candidate belonging to the SEBC category . It was submitted that if the said seat is filled up by a general category student as prayed for by the petitioners, the same would tantamount to decreasing the percentage of reservation, which was not permissible in law. It was accordingly submitted that there was no illegality in the action of the respondent college and the petition deserved to be rejected. 7. Learned Counsel Mr. G.M. Joshi appearing on behalf of the respondent No.5, submitted that the roster was declared by the admission notice dated 17th March 2005. That, the petitioners had participated in the admission process, without raising any grievance against the application of the roster, hence, at this stage after admissions to the said seats are concluded, the petitioners cannot be permitted to challenge the same. It was submitted that the term commences on 2nd May, 2005 whereas the petition was filed on 4th May, 2005. 7.1 It was further submitted that the roster points have been made applicable to the Post graduate medical courses by virtue of the government resolution dated 2nd June, 2003. Referring to the Rules governing the appointment of residents at the Government Medical Colleges, it was submitted that admission to PG courses were governed by the said rules and that Rule 23 of the said Rules specifically provides that for giving proper effect to the reservations for the Scheduled caste/scheduled tribes, socially and educationally backward classes etc. prescribed under the said rules, every appointing authority that is Deans of the respective Government Medical colleges in the State of Gujarat were required to treat the vacancies required to be filled up as reserved or unreserved according to a model roster constituting of 100 points. That, the manner in which the Roster points were to be implemented for the purpose of admission to PG Medical course was provided by the government resolution dated 2nd June, 2003. 7.2 It was further submitted that both the seats meant for M.D. (Paediatrics) were to be filled in by candidates belonging to the ST and SEBC categories respectively. However, the respondent-Dean wrongly sent one seat meant for SEBC to the All India quota. That fortunately, the All India quota candidate who had been admitted to the said seat, had not reported for admission and accordingly the said seat had reverted back to the State and the respondent No.5 had been admitted to the said seat. That, the respondent No.5 had been admitted to the said seat taking into consideration the original position, which was just, legal and proper and did not call for any intervention on the part of this Court. 7.3 Learned Counsel submitted that there were two sources of admission (i) the All India students and (ii) the State or local students. That, insofar as the State quota is concerned, once there is a policy governing admissions in respect of the same; the said policy has to be applied. 7.4 Learned Counsel placed reliance upon the decision rendered by the Supreme Court in the case of Union of India v. R. Rajeshwaran and another, reported in (2003)9 SCC