Case: Amitabh Shrivastava Vs. State of Madhya Pradesh and Others

The Government of Madhya Pradesh, Public Health and Family Welfare Department, have framed Rules on 17.4.1979 for admission into the Medical, Dentistry and Ayurvedic Colleges in the State. In this appeal we are not concerned with the Dentistry and Ayurvedic Colleges. There are six Medical Colleges in the S tate of Madhya Pradesh affiliated to different universities. There are 720 seats for admission into the first year course in those six colleges. Rule 5(1) of the aforesaid Rules, hereinafter refer to as the Rules, lays down that no candidate shall be admitted to the M.B.B.S. course unless he has passed the B.Sc. Part I (three years degree course Medical Group) examination of the recognised universities of the State with Physics, Chemistry, Biology (Zoology and Botany) o r any examination of any other university or board recognised as equivalent thereto with practical tests in each subject provided the candidate has passed in each of those subjects in theory and practical separately. Under rule 6 of the Rules no cand idate shall be admitted to the medical college unless he completes the age of 17 years on the 31st December of the year of admission to the college. Rule 1(3) provides for the pre- medical examination being held every year for selection of candid ates for admission to the medical colleges in the State and says that all admissions to those colleges have to be made only from the merit list prepared on the basis of the result of that examination except in the case of seats placed at the disposal of the Government of India or other States.Under Rule 7 certain number of seats have to be reserved for specific categories of candidates passing the pre-medical examination asFifteen percent shall be reserved for women candidates;2. Fifteen percent shall be reserved for each of the categories of Scheduled Caste and Scheduled Tribes candidates;3. Seats not exceeding 3 percent may be reserved for children of military personnel who have to produce the necessaryfrom those reservations, under Rule 8 seats not exceeding 3 per cent are reserved for nominees of the Government of India and three seats are reserved for candidates nominated by the Government of Jammu and Kashmir in consideration of three seats reserved in the medical colleges in that State for candidates of the State of MadhyaRule 20, selection of candidates fro m amongst those who had appeared and qualified in the written examination shall be made strictly on merit as disclosed by the total number of marks obtained by a candidate in the pre-medical examination. The qualifying marks for admission s hall be 50 per cent in the aggregate and 33 percent in each of the subjects. For Scheduled Castes and Scheduled Tribes candidates the minimum qualifying marks shall be 45 per cent in aggregate and 30 per cent in each of the subject. In case the required number of candidate for admission are not available according to the above percentage of qualifying marks the Board conducting the pre-medical examination under Rule 2 shall have power to lower the marks up to S per cent in the aggregate for al l categories of candidates. If even with the relaxation granted by the Board, as above, required number of candidates in the categories of Scheduled Castes and Scheduled Tribes are not available for admission the Government has power to grant special relaxation in the maximum qualifying marks to the extent considered necessary.Under Rule 9, in case sufficient number of candidates do not qualify for admission under any reserved category and any seats remain vacant, such vacant seals shall be fined by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list sois not necessary to refer to any of the other rules for the purpose of this appeal.Indisputably, the appellant belongs to the third category of seats reserved under Rule 7 as he is a son of a military personnel settled in Madhya Pradesh. Sons and daughters of military per sonnel of Madhya Pradesh are entitled to 21 seats in all out of 720 seats available in the six medical colleges in the State. As per the minimum number of qualifying marks prescribed in Rule 20, namely, 50 per cent in the aggregate and 33 per cent in each of the subjects, children of military personnel secured only 8 seats, and 13 seats in that category remained vacant and all other categories secured only 361 seats and 338 seats of those categories remained vacant. The appellant did not qualify for admission on the basis of the marks specified in Rule 20 for the academic year 1979-80. Then the Board applied Note (1) to Rule 20 which provides for lowering the minimum qualifying marks upto 5 per cent in the aggregate for all categories of candidates. After that was done 6 more candidates belonging to the category of sons and daughters of military personnel and 274 more candidates belonging to all other categories secured admission and 7 seats belonging to the category of children of military personnel and 64 seats of all other categories remained vacant. Even then the appellant could not secure admission as he had secured only 43.6 per cent of marks in the aggregate and 33 per cent in each of the subjects in the pre-medical examination and in the merit list prepared according to rule 9 he ranked 74 and only 71 candidates in that list could be admitted on the basis of merit.Then the Madhya Pradesh Government issued an executive notification dated 10 March, 1980 regarding relaxation of qualifying marks for the purpose of admission to the medical colleges. That notification is to the effect that for the year 1979-80 candidates who have obtained at least 43 per cent of marks in the aggregate in the pre-medical examination shall be admitted to the medical colleges in the unfilled seats on the basis of merit according to the rules. ordinarily, the appellant who had secured 43.6 per cent of marks in the aggregate in the pre-medical examination and another candidate in the category of children of military personnel should have got admission after the lowering of the minimum qualifying marks to 43 per cent in the aggregate, leaving 5 seats in that category still vacant. But Rule 9 was applied and a combined list of all the remaining categories on the waiting list was prepared and the candidates were admitted according to merit in the list so prepared and consequently the appellant who belong s to the category of children of military personnel and had secured 43.6 percent of marks in the aggregate in the pre- medical examination could not secure admission. These facts are not in dispute.

Reasoning: We are inclined to agree with the conclusion reached by A.R. Navkar, J., though for different reasons. The matter is simple. Under Rule 20, the minimum number of marks prescribed for admission into the Medical Colleges in the State is 50 per cent in the aggregate and 33 per cent in each of the subjects. On that basis, out of the total of 720 seats available in all the six medical colleges in the State only 8 out of 21 of the category of sons and daughters of military personnel, and only 361 out of 699 available for all other categories could be and were admitted in the academic year 1979-80. Rule 9, which has been relied upon by the respondents as well as by K. K. Dube, J. and the Chief Justice say s that in case sufficient number of candidates do not qualify for admission under any reserved category, barring, of course, the category of Scheduled Castes and Scheduled Tribes candidates, and any seats remain vacant, such vacant seats shall be filled by preparing a combined merit list of all the remaining categories of candidates on the waiting list and the candidates shall be admitted according to merit in the list so prepared. But that Rule was not applied by the respondents and could not be applied under the circumstances of the case when 338 seats in all other categories and 13 seats of the category of sons and daughters of military personnel could not be filled in 1979- 80 on the basis of the said minimum number of qualifying marks, namely, 50 per cent in the aggregate and 33 per cent in each of the subjects. Then Note (1) to Rule 20 providing for lowering of the qualifying marks upto 5 per cent in the aggregate for all categories was applied. Even then 64 seat s of all other categories and 7 seats of the category of sons and daughters of military personnel could not be filled and remained vacant. Then the Government by an executive order issued the notification dated 10th March, 1980 reducing the minimum qualifying marks to 43 per cent in the aggregate, and it is only at this stage Rule 9 was applied with the result that in the category of sons and daughters of military personnel only 2 more candidates could secure admission and 7 seats of that category had to be filled by other categories. We are of the opinion that since the minimum qualifying marks were reduced to 43 per cent by an executive order without any provision therefor in the statutory rules, Rule 9 of the statutory rules could not be applied at that stage, and that the appellant who had secured 43.6 per cent of marks in the aggregate should have been admitted in the category to which he belongs. We think that the difference between 45 per cent in the aggregate, to which the minimum qualifying marks were reduced under Note (1) to Rule 20 and 43.6 per cent of marks in the aggregate secured by the appellant is so little that it could not be a valid or sufficient reason for giving a go -bye, on the ground of merit, to the reservation provided for in Rule 7 of the Rules. The appellant deserves to be admitted even for this reason. In these circumstances we are unable to agree with the view taken by K.K. Dube, J. and the Chief Justice, and we agree with the conclusion reached by A.R. Navkar, J.