IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 467 of 2009. Judgment reserved on:01.04.2009. Date of Decision: 02.04.2009 Amarjeet Singh Chadha …Petitioner. Versus. State of H.P. & ors. .. Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Mr.Anoop Rattan, Advocate. For the Respondent(s): Mr. Ankush Dass Sood, Addl.A.G. and Mr.R.M.Bisht, Dy.A.G. for respondents No.1,2 and 4. Mr.Bipin Negi, counsel for R-3. Mr.J.L.Bhardwaj & Ms.Jyotsna Rewal Dua Advocates for Interveners. Deepak Gupta, J. The following interesting and important question arises in this petition: “Whether the scheduled caste/scheduled tribe candidates are eligible to be considered for admission to the MDS course on obtaining 40% marks in the entrance test against the seats allocated to all categories or whether this benefit of lower eligibility criteria is available only in respect of seats reserved for scheduled castes and scheduled tribes?” 2 Briefly stated the facts of the case are that the respondent No.3 H.P. University conducted the entrance test on behalf of respondent No.1 State of Himachal Pradesh for admission to various Post Graduate Courses in H.P. Government Dental College and Hospital, Shimla and Himachal Dental College and Hospital, Sundernagar. The relevant provisions of the prospectus issued are quoted hereinbelow: “3.4: 15% seats will be reserved for scheduled castes, 7.5% for scheduled tribes. The allotment of seats shall be determined in consonance with the 13 point roster being maintained. 3.5: If required number of candidates in each group i.e. in-service and direct of reserved seats (SC/ST) are not available, the seat(s) reserved for them will be inter-transferable and thereafter in case any seat(s) remain unfilled of reserved category, the same shall be treated open and allotted to the general category candidate(s) of the same group in the same specialty. Provided however, that in case required number of candidates in one group are not available, the seats reserved for them shall be allotted to the candidates of the general category of the other group. Xxxxxxxx xxxxxxxxxxx xxxxxxxxxxx 4.10: In-Service Medical Officers (Dental) will compete amongst themselves and open candidates will compete in their own group in the competitive examination conducted by the University. Xxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxx 4.15: Candidates who obtain less than the following percentage of marks in the entrance test will not be eligible for admission to the Postgraduate courses: (i)General Category/MO (Dental) 50% (ii)Scheduled Caste/Scheduled Tribe 40%” Admittedly this year there were no seats reserved for scheduled castes and scheduled tribes in both categories i.e. direct category and promotion from Medical Officer (Dental). In all there are four seats 3 in the H.P. Government Dental College and Hospital, Shimla out of which two are reserved for the All India Quota and out of the two available for being filled from local candidates, one seat is allocated for GDOs i.e. in-service candidates and one is for direct candidates. In the H.P. Dental College and Hospital, Sundernagar, the total number of seats are six. There are three seats for the management quota i.e. one seat each in three different specialties. Remaining three seats are to be filled by the State of H.P. on the basis of the entrance test. Out of these three seats, one is reserved for M.O. (Dental) and two for direct candidates. The petitioner belongs to a scheduled caste. He is presently employed as GDO (MO Dental) in the State of Himachal Pradesh. He applied through the Department. In his application against the column “Group applied for, (HPHS/Direct)” he has mentioned “HPHS-I- Gen”. In the next column “Category applied for (General/SC/ST)” the words ST have been scored off and the words General and SC have been ticked and it is mentioned “SC, Belong to SC”. As per the prevalent practice the forms of in-service candidates i.e. MO (Dental) are scrutinized by the respondent No.2. The respondent No.2 forwarded the application of the petitioner to the respondent No.3 treating him to be a general candidate. The petitioner appeared in the test. After the result was declared he found that though he had scored 86 marks out of 200 i.e. 43% marks, his name was not shown in the 4 list of qualified candidates. According to the petitioner, since he has scored more than 40% marks which is the eligibility requirement in case of scheduled castes and scheduled tribes candidates his name should have been reflected in the merit list under the scheduled castes category. There is only one general category in-service candidate who has qualified the entrance test as against two seats meant for this category. It would be pertinent to mention that in the publication wherein the result of the candidates is published there is a combined list of successful candidates separately shown. This is divided into two sections; one is in respect of HPHS candidates i.e. in-service candidates and the second is in respect of direct candidates. These two categories i.e. HPHS and direct are further sub-divided into three sub-categories each i.e. HPHS General, HPHS scheduled caste, HPHS scheduled tribe, direct general, direct scheduled caste and direct scheduled tribe. In this year no candidate has been shown to have qualified under the category of HPHS scheduled caste. The claim of the petitioner is that since he has scored more than 40% marks in the entrance test he should be declared to have qualified the entrance test as a scheduled caste candidate in the in-service i.e. HPHS (MO Dental) category. The stand of the respondents is that as per Clause 4.15 all Medical Officer (Dental) candidates i.e. in-service candidates are 5 required to obtain a minimum of 50% marks and this includes the candidates belonging to the scheduled castes and scheduled tribes. According to the respondent-State the benefit of being eligible on obtaining 40% marks is available to the scheduled castes and scheduled tribes candidates only in respect of seats reserved for such categories. On the other hand, the learned counsel for the petitioner has urged that in Clause 4.15 the scheduled castes and scheduled tribes are shown as a different category and the benefit of being eligible for admission on obtaining 40% marks is available to all candidates belonging to these categories irrespective of the fact whether they are competing in the direct quota or against the seats meant for in-service candidates. It is also urged that this has no connection with seats reserved for scheduled castes and scheduled tribes. Before proceeding to deal with this matter in detail, it would be pertinent to point out that this matter was listed along with CWP Nos.405/2009 and 439 of 2009 on 26.3.2009 when this matter was heard in part. In case the stand of the petitioner does not find favour with us, the natural corollary would be that the seat would go to a direct candidate. Therefore, we had permitted counsel appearing in other petitions for the direct candidates to intervene and address arguments before us since the direct candidates would be affected by the result of the present petition. 6 We have heard Sh.Anoop Rattan, learned counsel for the petitioner, Sh.Ankush Dass Sood, learned Additional Advocate General for the State, Sh.B.C. Negi, learned counsel for the University and Sh.J.L. Bhardwaj and Ms.Jyotsna Rewal Dua, learned counsel for the direct candidates. We may point out that during the hearing of this matter some of the counsel had urged that there can be no reservation in favour of scheduled castes and scheduled tribes candidates in Postgraduate Medical Education courses. We have not considered this question since none of the direct candidates in their petitions had challenged the reservation in favour of the scheduled castes and scheduled tribes candidates. There is no case before us in which such challenge has been laid. In a petition filed by a Scheduled caste candidate we cannot permit the respondents to raise the plea that the reservation made for the scheduled castes and scheduled tribes is unconstitutional. The only point which requires to be determined is the interpretation of Clause 4.15 quoted hereinabove. According to the counsel for the petitioner, all scheduled castes and scheduled tribes candidates regardless of the category in which they apply and irrespective of the fact whether the seats are reserved for scheduled castes and scheduled tribes are eligible for admission, once they obtain 40% marks. 7 Learned counsel for the respondents however urge that in case of in-service candidates i.e. MO (Dental), the Clause itself prescribes a minimum eligibility requirement of obtaining 50% marks. According to the respondents the word “MO(Dental)” are wide enough to include all candidates irrespective of the caste they belonged to. The parties have cited a number of judgments before us. In Dr.Sadhna Devi and others vs. State of U.P. and others, (1997)3 SCC 90, the petitioners challenged the notification issued by the Government of U.P. providing reservation for SC/ST/OBC category in Postgraduate specialty and super-specialties. It would be pertinent to mention that while making the reservations the State also dispensed with the requirement of obtaining the minimum 35% qualifying marks in respect of reserved candidates. In para 10 the Apex Court held as follows: “10. The right of the State Government to reserve admission to Post Graduate Medical Courses for SC/ST and members of OBC classes is not in dispute. The only dispute is that whether the State Government is entitled to do away altogether with the system of obtaining minimum qualifying marks for getting admission to these courses. By the impugned circular the State Government has dispensed with the requirement of obtaining at least 35% marks in the written examination held for admission to Post Graduate Degree and Diploma Courses.” The Apex Court after holding that the reservation could be made, held that the order of the Government directing that there should be no 8 minimum qualifying marks was illegal and accordingly quashed the same. In Post Graduate Institute of Medical Education & Research, Chandigarh and others vs. K.L. Narasimhan and another, (1997) 6 SCC 283, the Apex Court held that Government was entitled to make reservations even in super-specialties and that even a single vacancy could be reserved. These decisions came up for consideration before a five Judge Bench of the Apex Court in Dr.Preeti Srivastava and another vs. State of M.P. and others, (1999) 7 SCC 120. The Apex court accepted the reasoning given in Dr.Sadhna Devi’s case (supra) and over-ruled the reasoning and conclusion in Post Graduate Institute of Medical Education and Reserch’s case and held as follows: “1. We have not examined the question whether reservations are permissible at the post-graduate level of medical education. 2. A common entrance examination envisaged under the Regulations framed by the Medical Council of India for post-graduate medical education requires fixing of minimum qualifying marks for passing the examination since it is not a mere screening test. 3. Whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the post-graduate level of medical education is a question which must be decided by the Medical Council of India since it affects standards of post-graduate medical education. Even if minimum qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the general category candidates at this level. The percentage of 20% for the 9 reserved category and 45% for the general category is not permissible under Art. 15(4), the same being unreasonable at the post-graduate level and contrary to public interest. 4. At the level of admission to the super- specialty courses, no special provisions are permissible, they being contrary to national interest. Merit alone can be the basis of selection.” It is obvious that the Court did not go into the question whether reservations are permissible at the post graduate level of medical education but held that lower minimum qualifying marks for reserved categories can be prescribed at this level. It further held that what are these minimum standards is something to be decided by the Medical Council of India. It however added a caveat that the difference between the minimum qualifying marks provided for the reserved category candidates and general candidates cannot be very wide and the same must be reasonable. Counsel for the respondent have placed great reliance on the observations of the Apex court in K.Duraisamy and another vs. State of T.N. and others, (2001) 2 SCC 538. In the State of Tamilnadu, like in the present case, 50% seats were reserved for in- service candidates and the remaining seats were meant for the open quota. It appears that the in-service candidates obtained higher marks and therefore some of the in-service candidates who had obtained higher marks but could not qualify on the basis of merit in their category urged before the Madras High Court that they should be 10 considered in the open category and on the basis of merit they should be granted admission since they had obtained higher marks than the direct candidates who had been given admission. A learned Single Judge of the Madras High Court applying the principles applicable in cases of reservation accepted the plea of the in-service candidates. A Full Bench of the Madras High Court set-aside this judgment and thereafter the Apex court held as follows: “8. That the government possess the right and authority to decide from what sources the admissions in Educational Institutions or to particulars disciplines and courses therein have to be made and that too in what proportion, is well established and by now a proposition well settled, too. It has been the consistent and authoritatively settled view of this court that at the super specialty level in particular and even at the Post-Graduate level reservations of the kind known as "protective discrimination" in favour of those considered to be backward should be avoided as being not permissible. Reservation, even if it be claimed to be so in this case, for and in favour of in- service candidates, cannot be equated or treated on par with communal reservations envisaged under Article 15(4) or 16 (4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the quota reserved on communal considerations. 10……… If the government can be said to possess the power to fix a quota for the exclusive benefit of "in-service" candidates, it is beyond comprehension or dictates of either reason or logic as to why the Government cannot equally exclusively earmark the remaining seats in favour of "non service" or private candidates, thereby confining the claims of services candidates 11 to the number of seats earmarked and allocated to them. As there can be a classified category of 'service candidates', it is open to the Government to make classification of all those other than those falling in the category of service candidates, as non-service candidates and allocated the remaining seats after allotment to the service candidates for exclusive benefit of the source of non-service or private candidates. There is nothing in law which deprive the Government of any such powers and no such impediment has either been brought to our notice at the time of hearing or seems to have been brought to the notice of the learned single Judge to warrant any such construction, as has been adopted by him.” The respondents have placed great reliance on the observations of the apex Court that Postgraduate level reservations are not permissible. Since we have already indicated above that we are not permitting the respondents to raise this plea, we are not entering into this dispute. In State of Punjab vs. Dayanand Medical College and Hospital and others, (2001) 8 SCC 664, the Apex Court interpreting the judgment in Dr.Preeti Srivastava (supra) held as follows: “10. It is clear from this summary of the conclusions that this Court was not concerned in that decision with the question as to whether reservations are permissible for postgraduate medical courses or not, This Court was only paying attention to the question of fixing lower minimum qualifying marks for reserved category candidates and it was stated that such question must be decided by the Medical Council of India since it affects the standards of postgraduate medical education. This Court also stated that fixing of qualifying marks to be obtained at the percentage of 20% for the reserved category and 45% for the general category is not permissible under Article 15(4), the same being unreasonable at the postgraduate level and contrary to the public interest. However, it was noticed that even if minimum 12 qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidate and the minimum qualifying marks for the general category candidates at the level of postgraduate medical education. The obvious effect of these conclusions would be that this Court did not totally rule out the prescription of reservation in postgraduate courses nor did it say that such prescription couldn't be provided for with lower minimum qualifying marks. All that was stated was that if there is a reserved category and lower minimum qualifying marks are prescribed for them, such prescription should not give rise to a wide disparity between the lower minimum qualifying marks prescribed for the reserved category and for the general category.” In AIIMS Students’ Union vs. AIIMS and others, (2002) 1 SCC 428, the Apex Court was considering the issue as to whether institutional reservation of 33% seats for in-house candidates was justified or not. After discussing the entire case law as well as the philosophy of the Constitution in regard to reservation, the apex Court gave its conclusion in para 59, the relevant portion of which reads as under: “53. The upshot of the above discussion is that institutional reservation is not supported by the Constitution or constitutional principles. A certain degree of preference for students of the same Institution intending to prosecute further studies therein is permissible on grounds of convenience, suitability and familiarity with an educational environment. Such preference has to be reasonable and not excessive. The preference has to be prescribed without making an excessive or substantial departure from the rule of merit and equality. It has to be kept within limits. Minimum standards cannot be so diluted as to become practically non-existent. Such marginal institutional preference is tolerable at post-graduation 13 level but is rendered intolerable at still higher levels such as that of super-specialty…….” In State of M.P. and others vs. Gopal D.Tirthani and others, (2003) 7 SCC 83, the Apex Court upheld the allocation of 20% seats for in-service candidates on the ground that this does not amount to reservation. The relevant observations of the Apex Court are as under: “25. The eligibility test, called the entrance test or the pre-PG test, is conducted with dual purposes. Firstly, it is held with the object of assessing the knowledge and intelligence quotient of a candidate whether he would be able to prosecute post-graduate studies if allowed an opportunity of doing so; secondly, it is for the purpose of assessing the merit inter se of the candidates which is of vital significance at the counselling when it comes to allotting the successful candidates to different disciplines wherein the seats are limited and some disciplines are considered to be more creamy and are more coveted than the others. The concept of a minimum qualifying percentage cannot, therefore, be given a complete go by. If at all there can be departure, that has to be minimal and that too only by approval of experts in the field of medical education, which for the present are available as a body in the Medical Council of India.” The Apex Court held that minimum qualifying percentage must be laid and that there can be a lower minimum qualification for the reserved categories but the same must be approved by a body of experts such as the Medical Council. In that case the question was whether the State could hold a separate entrance test for in-service 14 candidates. The Apex Court held that a common entrance test is must but went to hold as follows: “28. ………..The candidates qualified at the Pre-PG or entrance test held in common for in-service and open category candidates, would then be divided into two separate merit lists to be prepared for the two categories and merit inter se of the successful candidates shall be available to be assessed separately in the two respective categories.” We have considered all the aforesaid judgments and according to us the law laid down by the apex Court in respect of in-house or in- service candidates is that the allocation of seats to this category is not to be treated as a reservation but as a preference or a quota whereby candidates belonging to this category only compete with each other. Clause 3.5 of the prospectus provides that in each of the groups i.e. in-service and direct in case of reserved seats if the candidates from particular category in which the seats are reserved are not available then the seats will be interchangeable between the scheduled castes and scheduled tribes. In case they still remain unfilled then the same shall be treated to be open and allotted to the general candidate but of the same group. The proviso lays down that in case required number of candidates in one group is not available then the seats reserved for them shall be allotted to the candidates of the general category of the other group. It is thus clear that the seats available to be filled in through the examination conducted on behalf of the State of Himachal Pradesh are vertically divided into two groups. 50% of the seats are meant for the 15 direct quota and 50% for in-service candidates. A common entrance test is held to assess the merit of the candidates appearing in the said test. The Apex Court has laid down that only one test should be held so that all candidates whether competing for the in-service post or direct post are rated on the same scale. The intention of the legislature is clear that this vertical reservation is to function in such a manner that only candidates who apply against the direct quota are considered against seats available in that quota and similarly only in-service candidates are considered for the seats meant for in-service candidates. In K.Duraisamy’s case (supra) the Apex Court clearly held that this is not reservation but allocation of two separate quotas and two separate sources for filling up the seats. This was further explained in AIIMS case and Tirthani’s case (supra). The judgments quoted hereinabove also clearly lay down that the question as to whether there should be a lower eligibility standard for scheduled castes and scheduled tribes candidates is a matter to be decided by a body of experts. In the present case the said body would be the Dental Council of India. It is for this body to decide whether there should be any relaxation of standard and if it decides to grand relaxation, what should be the relaxation. The Dental Council of India has framed revised MDS Course Regulations which have been published in the Gazette of India. The Regulation relating to selection of Postgraduate students reads as follows: “SELECTION OF POSTGRADUATE STUDENTS: 16 (1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit. (2) For determining the academic merit, the university/institution may adopt any one of the following procedures both for P.G. Diploma and MDS degree courses: (i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/ group of universities in the same state; or (ii) On the basis of merit as determined by a centralized competitive test held