2 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 2349 of 2011. Reserved on : May 9, 2011. Decided on: May 13, 2011. Rohit Bhoil. Vrs. State of H.P. & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. Ajay Mohan Goel, Advocate. For the Respondents: Mr. R.K.Bawa, AG, with Mr. J.K.Verma, Dy. AG, for respondents No. 1,2,4 & 5. Mr. B.C.Negi, Advocate, for respondent No.3. Mr. Anup Rattan, Advocate, for respondents No. 6. Mr. Shrawan Dogra, Advocate, for respondent No.7. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. The issue referred to the Larger Bench, reads as follows: “Once the State having reserved seats for SC/ST candidates, and 40 point roster for securing reservation on communal basis having been prescribed, which in turn safe-guards the interest of all groups and communities as well, whether a candidate belonging to SC/ST, who has secured only less than 50%, but above 40% marks in the common entrance test can stake a claim for a seat allocated to the general category in the 40 point roster in case no candidate in the general category of the GDO/in-service group category is available?” 2. The reference was necessitated in view of the Division Bench decision of this Court in Amarjeet Singh Chadha vrs. State of H.P, reported in (2009)1 SLC 492, wherein it was held that even in a situation where there is no reservation for scheduled caste/scheduled tribe category of candidates and in case there is seat available in the general category, the same can be allotted to the candidate belonging to SC/ST community, though, he had scored only less than 50% marks though the eligibility for general category candidates is 50%. 3. Amarjeet Singh’s case (supra) pertains to admission to MDS courses for the academic session 2009-2012. Of the five seats available, two were 3 to be allotted to the in-service (GDO) general and three direct general. For the academic session 2009-2012, as per the roster maintained in the matter of admissions, there was no seat available to be allocated in the reserved category of SC/ST. The petitioner an in-service candidate and belonging to scheduled caste category, appeared in entrance examination but scored only 43% marks. For the un-reserved category the eligibility is 50%. In the absence of any eligible candidate in the in-service general category where the eligibility is of 50% marks, the Division Bench held that the petitioner Amarjeet Singh being an in-service candidate and belonging to scheduled caste community, should be treated as eligible though he has scored only less than 50% marks. We may extract the paragraphs 26 to 32 of the judgment, which read as follows: “ 26. The Regulations framed by the Dental Council of India, which is the expert body, clearly stipulate that in respect of candidates belonging to scheduled castes and scheduled tribes they would be eligible for admission to Post Graduate Dental Course on obtaining 40% marks in the admission test. This benefit has not been restricted only qua the seats reserved for scheduled castes and scheduled tribes. There may be States or Institutions which do not reserve any seats for scheduled castes and scheduled tribes in Postgraduate Medical Education Courses. In such cases also the minimum eligibility criteria will be 40% for candidates belonging to the scheduled castes and scheduled tribes. 27. It is in the light of these directions and the law laid down by the Apex Court that we have to interpret clause 4.15 quoted hereinabove. On a close scrutiny of this clause we find that the only reasonable interpretation which can be given to this clause is that the words “general category/MO (Dental)” used in sub-clause (i) of this clause only relate to the candidates belonging to the general category whether applying against the direct quota seats or the in-service seats. The words scheduled castes and scheduled tribes in sub-clause (ii) must be tagged to both categories. Therefore, if any, candidate belonging to the SC/ST has appeared in the examination and has obtained 40% marks he must be deemed to have attained the minimum eligibility qualification. The minimum eligibility qualification in respect of general candidates is 50%. Though the candidates belonging to the scheduled castes/ scheduled tribes become eligible on obtaining 4 40% marks in the entrance test they do not automatically get the seat unless the seat is reserved for SC/ST candidates. The qualified candidate has to compete on merit but only becomes eligible. However, in case a sufficient number of general category candidates from that group have not obtained the minimum eligibility of 50% prescribed then the SC/ST candidate (s) jumps over the other general category candidates who may have scored more marks than the SC/ST candidate but have not obtained the minimum eligibility criteria of 50%. 28. We cannot accept the argument of the respondents that this applies only in case of seats allocated to the direct quota and not to the in-service candidates. We see no reason to differentiate between the SC/ST candidates applying under the direct quota or in-service quota. We also find no merit in the argument of the learned Additional Advocate General that the minimum eligibility criteria of 40% applies only in case of seats reserved for SC/ST. This cannot be inferred from any portion of clauses referred to above. 29. It has been strenuously urged by Ms. Jyotsna Rewal Dua that the words “MO (Dental) covers all categories of in-service candidates including SC/ST. This argument on first blush sounds attractive. However, on closer scrutiny of the clauses as well as the law laid down by the Apex Court we are of the opinion that this interpretation would nullify the allocations of seats to the in- service candidates. As discussed above, the Apex Court has in no uncertain terms repeatedly laid down that as far as possible the seats should go to the category covered by the quota. This may be called a vertical division. This vertical division is virtually impermeable. As far as possible the seats should be filled in from the candidates applying in that quota. It is only when no person from that quota is found eligible that the seat will be laterally thrown open for candidates belonging to the other group. 30. Therefore, a person like the petitioner who belongs to the scheduled caste applies against a post in the category of in-service candidates in the general category he becomes eligible, to be considered for the post on securing 40% marks. In fact, on perusal of the record, we find that this practice has been followed by the respondents in the last year and the candidates from the SC/ST who had scored more than 40% marks were shown to have qualified the written test. In the present case the trouble arose 5 because the respondent No.2 recommended the name of the petitioner as a general candidate and the University treated him as a general candidate and not as a scheduled caste candidate. 31. The respondents have also urged that the petitioner has acquiesced and is estopped from raking this matter since he accepted his roll number as a general candidate and appeared in the test as a general candidate. We are not impressed with this argument. The post was meant for the general category but the petitioner in his application form had clearly mentioned that he belongs to the scheduled caste. It was only when in the result published no person from the scheduled caste category of in- service candidates was shown to have been qualified that the petitioner realized that injustice has been caused to him. He thereafter immediately approached this Court. 32. In view of the above discussion, we allow the writ petition and direct the respondents to treat the petitioner as having qualified the entrance examination held for the admission to Postgraduate Degree (MDS) course in H.P. Govt. Dental College and Hospital Shimla and Himachal Dental College and Hospital, Sundernagar. All consequences will naturally follow. The writ petition is disposed of with the aforesaid directions. No order as to costs.” 4. In the case under reference, the matter pertains to selection to MD/MS courses. In the State Quota, 37 seats for PG degree courses and 7 for diploma are available. This 37 is divided between in-service and direct in the ratio of 80:20. Thus 30 seats are available for in-service candidates ( who are also known as HPHS/GDO) and 7 for direct. There is communal reservation both in the case of in-service and direct. We are concerned only with the in-service. 23 seats are allocated to the in-service general category, 5 to in-service SC and 2 to in-service ST. Nobody in the in-service general category was qualified by scoring minimum 50% in the entrance test. However, 2 SC in-service candidates qualified in the entrance test by scoring more than 40% but less than 50%. The State of Himachal Pradesh has taken the stand that the SC candidates who belong to the in-service category having been qualified with 40% or above marks though below 50%, can be considered for allotment of any of the 23 seats meant for the in-service general category. In other words, it is the stand of the State as well as 6 the private respondents that eligibility is not to be given a restricted meaning of eligible only for the seats reserved for the SC/ST candidates. Whereas the contention of the petitioner is that once seats are reserved for SC/ST candidates and in case they do not secure the eligibility level prescribed (50%) of the marks for the general/un-reserved category, such SC/ST candidates can be considered only against the seats reserved for them. 5. The State has adopted a 40 point roster securing the interests of the in-service candidates and also the SC/ST reserved categories. In other words, there is speciality-wise rotation of disciplines among all categories. In case the 2 SC candidates who scored 40% and above marks but less than 50% are considered only for the seats/ specialities allocated for them in the 40 point roster, they may not get the specialities of their choice. Whereas in case they are otherwise held eligible for the seats meant for the in-service general/un-reserved seats, they can opt for any of the specialities allocated this year for those candidates. It is in this context, the petitioner made an attempt for re- consideration of the dictum in Amarjeet Singh”s case (supra) and thus the reference. 6. The crucial difference in the factual matrix between Amarjeet Singh’s case and the present case (Rohit Bhoil’s case) is that, in Amarjeet Singh’s case, no seat was available for the reserved category of SC/ST in the in-service group, whereas in Rohint Bhoil’s case, 5 seats are available to SC category and 2 for ST, in the in-service group. 7. Though the learned counsel on both the sides have referred to several judgments of the Supreme Court and various other High Courts, we feel that before referring to those legal submissions it is necessary to refer to the provisions regarding the allocation of seats as they appear in the prospectus. 8. Annexure P-1, is the prospectus. Paragraph 3 deals with the eligibility and distribution of seats. Paragraph 3.1 is in respect of Group A (All India Quota) seats and Paragraph 3.2 is group B (State Quota) seats. We are concerned only with the Group B State Quota seats under Paragraph 3.2. 7 Paragraph 3.2 A, deals with HPHS (in-service) quota and the provision at 3.2(A)(i), reads as follows: “3.2(A) (i). Out of remaining 50% seats for State Quota, 80% will be filled-up by in-service regularly appointed (HPHS) Health Cadre candidates, adhoc & contractual appointees including appointee of Rogi Kalyan Samities. The GDO group will consist of two groups i.e. one group consisting of regularly appointed Health Cadre GDOs and second group consisting of adhoc, contractual and Rogi Kalyan Samities appointees.” Paragrpah 3.4 ( c) provides for allocation of seats between general and reserved and 3.4(e) provides for speciality-wise distribution of seats which reads as follows: “The speciality-wise distribution of seats between Direct and HPHS group in the ratio of 20:80 have been made by applying the 5 point roster in continuation to the last point of 6 point roster ……….” 9. Thus, as per the Prospectus, the allocation of seats among the in- service and direct, allocation of seats for SC & ST distribution between the two Government Medical Colleges and speciality-wise rotation of seats among the groups and categories is in the following manner in the degree courses: Sr. No. Name of Speciality No. of Seats (State Quota) HPHS (GDO Regular & GDO Contractual) Direct IGMC Tanda Total SC ST Gen SC ST Gen 1. Anaesthesiology 1 - 1 - 1 - - - - 2. Anatomy 1 - 1 - - 1 - - - 3. Community Medicine 1 - 1 - - - - - 1 4. Dermatology, Venrology and Leprosy 2 - 2 - - 1 - - 1 5. Forensic Medicine - - - - - - - - - 6. General Medicine 5 1 6 2 - 3 - - 1 7. Microbiology 1 - 1 - - 1 - - - 8. Obst. & Gynaecology 5 1 6 1 - 4 - 1 - 9. Ophthalmology 2 - 2 - - 2 - - - 10. Orthopaedics 2 - 2 - - 2 - - - 11. Oto-rhino-laryngology 1 - 1 - - 1 - - - 12. Paediatrics 2 - 2 1 - - - - 1 13. Pathology 1 - 1 - - - - - 1 14. Pharmacology 1 - 1 - 1 - - - - 15. Physiology 1 - 1 - - 1 - - - 16. Radio-diagnosis 3 - 3 - - 3 - - - 17. Radiotherapy 2 - 2 1 - 1 - - - 18. General Surgery 4 - 4 - - 3 - - 1 Total 35 2 37 5 2 23 - 1 6 8 10. Paragraph 3.5 deals with reservation roster. 3.5.(i) , reads as follows: “ The 40 point reservation roster for reservation of speciality and seats to SC & ST candidates in respect of State Quota seats have been applied on total seats available of all specialities arranged alphabetically. The successful candidates of each category and group will be called for allotment of seats as per their merit in their respective category and group.” 11. Paragraph 3.5 (iii) provides for inter-change of the reserved seats and also the consequence of non-availability of the candidates in the reserved category. The provision reads as follows: “ 3.5 (iii). If required number of candidates in each group i.e. HPHS (in-service) and Direct of reserved seats (SC/ST) are not available the seats(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 speciality. 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.” 12. Paragraph 4.11 of the prospectus deals with the eligibility of the candidates for admission to the PG courses. The provision reads as follows: “Candidates who obtains less than the following percentage of marks in the entrance test will not be eligible for admission to the Postgraduate Courses:- 1. (i) General Category (direct Group) 50% (ii) SC/ST Category (Direct Group) 40% 2. (i) General Category (HPHS/GDO Group) 50% (ii) SC/ST Category (HPHS/GDO Group) 40%”. 13. Paragraph 5 of the prospectus provides for counseling. Clause 5.1 of the extent relevant, reads as follows: “……….. The allotment of available seats to the eligible candidates will be made in order of merit drawn category-wise and 9 group-wise by Himachal Pradesh University, on the date of Counselling by following the 40 point reservation roster………..” 14. On going through the provisions as above, the emerging position is that the expression group has been used in the prospectus mainly to specify the in- service group and direct group, in the matter of allocation of respective quota. The expression category has been used to specify reservation of seats to the reserved categories of scheduled castes and scheduled tribes. It is also clear from the provisions of the Prospectus that merit list is to be drawn group-wise and category-wise. The allotment of seats is to be made as per the merit in the respective category and group. Still further, as per the provision regarding reservation, in case no reserved category candidate is available even after inter- change between direct and in-service or vice-versa, those seats will go to the general category of the respective group but the converse is not provided. In other words, in case no general candidate is available in any group, the vacancy does not automatically fall into the SC/ST category. However, the provision regarding eligibility of a candidate for admission has clearly provided that a general category candidate in either group of in-service or direct has to score 50% marks whereas a SC/ST candidate belonging to either group need only score 40% marks. The moot question would be whether an SC/ST candidate who has scored only 40% marks can claim a seat otherwise allotted to the general category candidates where the eligibility is 50% even in a situation where seats and specialities are reserved for SC/ST candidates. 15. Article 15 of the Constitution of India, prohibits any discrimination on grounds only of religion, race, caste, sex, place of birth or any of them. Article 29(2) of the Constitution of India, provides that no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of State funds on the grounds only of religion, race, caste, language or any of them. The first amendment to the Constitution of India, introduced a provision under Article 15 as Article 15(4) permitting the State to make special provision for the advancement of any socially and educationally backward classes of 10 citizens or for the SC and STs, dehors the other provisions under Article 15 and Article 29(2) of the Constitution of India. Article 15 of the Constitution of India was further amended by The Constitution (Ninety-third Amendment), adding a new provision as Article 15(5), which reads as follows: “5. Nothing in this article or in sub-clause (g) of clause(1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Schedule Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.” 16. In the Constitution Bench decision in Preeti Srivastava (Dr.) and another vrs. State of Madhya Pradesh and others, reported in (1999) 7 SCC 120, at paragraph 59, it has been held that “ The purpose, however of higher medical education is not to fill seats which are available by lowering standards; nor is the purpose of reservation at the stage of postgraduate medical education merely to fill the seats with the reserved category candidates. The purpose of reservation, if permissible at this level, is to ensure that the reserved category candidates having the requisite training and caliber to benefit from postgraduate medical education and rise to the standards which are expected of persons possessing postgraduate medical education are not denied this opportunity by competing with the general category candidates.” In this case, the question posed for consideration by the Constitution Bench, reads as follows: “The question is whether apart from providing reservation for admission to the postgraduate courses in Engineering and Medicine for special category candidate, it is open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission under the reserved category.” The conclusions are at paragraph 62, which read as follows: 11 “1. We have not examined the question whether reservations are permissible at the postgraduate level of medical education. 2. A common entrance examination envisaged under the regulations framed by the Medical Council of India for postgraduate 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 postgraduate level of medical education is a question which must be decided by the Medical Council of India since it affects the standards of postgraduate 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 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. 4. At the level of admission to the superspeciality courses, no special provisions are permissible, they being contrary to the national interest. Merit alone can be the basis of selection.” It may be specifically noted that the question formulated was on different qualifying marks for special category candidates in the reserved category. 17. In State of Punjab vrs. Dayanand Medical College and Hospital and others, reported in (2001) 8 Supreme Court Cases 664, the issue again came up for consideration in the wake of a slightly conflicting stand taken by the State and the Medical Council of India. The relevant considerations are at paragraphs 9, 10 & 11, which reads as follows: “ 9. A Five-Judge Bench of this Court in Dr. Preeti Srivastavas case [supra], made an exhaustive consideration of the scope of Entry 25 of List III in the Seventh Schedule to the Constitution and Entry 66 of List I in the Seventh Schedule to the Constitution. This Court made it clear that the States competence under List III Entry 25 to control or regulate higher education is subject to the 12 standards so laid down by the Union of India and States have competence to prescribe rules for admission to postgraduate medical courses so long as they are not inconsistent with or do not adversely affect the standards laid down by the Union of India or its delegate. Fixing minimum qualifying marks for passing the entrance test for admission to postgraduate courses is concerned with the standard of postgraduate medical education. Once minimum standards are laid down, States are competent to prescribe any further qualifications for selecting better students as they would not adversely affect the standards so laid down by the Medical Council of India. Certain observations were made in that decision to the effect that it is for the Medical Council of India to determine the reservation of seats, if any, to be made for SCs/STs/OBCs, the extent thereof and lowering of qualifying marks in their favour on the basis of proper balancing of public interests and, on this aspect, one of the learned Judges dissented and stated that States are fully competent to control admission to postgraduate courses, provide for reservation of seats, and lay down criteria for short-listing of eligible candidates for postgraduate courses under Entry 25, List III in the absence of any Central legislation on these aspects. However, the majority of the learned Judges ultimately summed up their conclusions as follows: “1. We have not examined the question whether reservations are permissible at the postgraduate level of medical education. 2. A common entrance examination envisaged under the regulations framed by the Medical Council of India for postgraduate medical education requires fixing of minimum qualifying