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2006 Supreme(Guj) 396
Gujarat High Court
Judgename :R.S.Garg, M.R.Shah
VINODKUMAR RASIKLAL VAHONIYA - Appellant
Versus
UNIVERSITY OF BHAVNAGAR - Respondent
Special Civil Application 11157 Of 2006
Decided On : 07/13/2006
Headnote:Point in Issue :
Whether a seat reserved can be dereserved in the name of institutional preference or ground of non-availability of in-institutional candidate for reserve seat.
Head Note :
(a) [Indian] Medical Council Act, 1956 (Central Act 102 of 1956) - Sections 33 and 19-A - Postgraduate Medical Education Regulations, 2000 - Rule 9 - Rules for admission to Postgraduate Degree Medical Courses other than M.Ch. and D.M. at the Medical Colleges affiliated with Bhavnagar University - Rules 4.1, 4.2, 4.3, 5.1, 5.2, and 5(4)(a) and (b) - Postgraduate Degree Course -Admission - Refusal - Dereservation of seat - Institutional preference - Ground of - Rules relating to - Constitutional validity - Finding of - Sustainability - Petitioner has claimed admission in Postgraduate Course (Medicine) and also declaration of admission rules converting a reserve seat into unreserve seat as unconstitutional - It is admitted by Advocate General who has come forward to assist the Court that policy of the State as enshrined in its resolution dated 05.12.1989 relating to admission has been modified on 15.04.1991 and State has observed that in case of non-availability of a reserved category candidate of the residents the seat shall be offered to other students of the same category who have passed their examination from the State of Gujarat - He has asserted that Government policy is to protect the reserved class and not to be withdrawn with twisted approach - When reservation is provided by one rule, the benefit of it cannot be withdrawn by other rules on ground that it was confined to in-institutional candidate and on his non-availability reservation would virtually elapse - Once the State Government provides either in its Rules Regulations or Circulars that a particular policy of reservation is to be adhered to then a University run by the State Government cannot violate the mandate issued by the Government - Current policy of the State is not to allow dereservation of the seats, therefore, the respondent university in the name of institutional preference cannot deserve the seat on ground of non-availability of in-institution candidate for a reserve seat and refuse admission to petitioner - In view of the matter Rules 4(1), 4(2) and 4(3) if are applied to the general category only there is nothing wrong with the said rules but when Rule 4.1 is allowed to operate in the field of seats reserved under Rule 5 then it perilously borders unconstitutionality - So far as Rule 5.4(a) is concerned it is apparently ultra vires the Constitution - It runs contrary to the Rules framed by the State.
Held :
Advocate General, at request, assisted Court. He submitted that the policy of the State as enshrined in its resolution dated 05.12.1989, so far as it relates to Rule 23(2), has been modified on 15.04.1991 and the State has observed that in case of non-availability of a reserved category candidate of the Residents, the seat shall be offered to other students of the same category who have passed their examination from the State of Gujarat. His submission is that Mr. Solankis submission that University can refuse to offer forms to outsiders is misconceived, because, if that interpretation is attached to the Rules of the Medical Council of India, then, some of the Rules framed by Bhavnagar University will become nugatory, because, some of the rules propose admission to the outsiders, The submission, however, is that the Government policy is to protect the reserved class and if any institution including the Government is providing reservation to the downtrodden or poor class and community, then, benefit should be widespread and it cannot be withdrawn with twisted approach. Submission is that in Rule 5 of the Rules of the respondent University, though reservation is provided, but the reservation is confined to in-institutional candidate and on his non-availability, reservation would virtually elapse. Submission is that if the Government policy is to protect reservation and provide better facilities and congenial atmosphere to reserved class, then, benefit cannot be withdrawn by other rules, if the first provides for the benefit. [Para 24]
Medical Council of India Regulations, 2000 simply say that for determining academic merits, University/institution may adopt any one of the procedures provided in Regulation-9 both for degree and diploma courses. Out of many, one of the procedure/mode is to be adopted, then, simply because, some mode is adopted, it cannot be said that policy of the reservation would have no application. Once the State Government provides either in its rules, regulations or circulars which have force of law, that a particular policy of reservation is to be adhered to, then, a University run by the State Government cannot violate the mandate issued by the Government. Current policy of the State is not to allow dereservation of the seats, but it would be clear that the respondent University in the name of institutional preference is proposing to dereserve a seat on non-availability of Resident/in-institution candidate for a reserved seat. [Para 27]
Dereservation of a seat or non-reservation would put a reserved category candidate in competition with general category students. Court can take a judicial note of the fact that the reservation policy is for the betterment of those who come from the grass-root level, have no facilities and are still striving to achieve the excellence. If the haves and have nots are treated equal, then, it may offend equality Clause. Reservation is for those who cannot compete in the general category. Preference is in the class or category itself, because, it is something beyond reservation. Reserved seats inform the general category that you are outsiders to this category, while preference says to the person belonging to the very same category that he would be out if in-institutional resident candidate is available. Reservation is for a class or community while preference is for the selected few. In the present matter, Rules 4.1, 4.2 and 4.3, if are applied to the general category only, then, there is nothing wrong in the said Rules, but when Rule 4.1 is allowed to operate in the field of seats reserved under Rule 5, then, it perilously borders unconstitutionality. [Para 28]
The manner in which Rule 5, specially Rule 5.4 (a) has been framed would violate Articles 14 and 15 of the Constitution of India. It is also to be noted that Medical Council of India has nowhere said that policy of reservation is to be sacrificed in the name of excellence or merits. Comparative merits are to be examined in a class or community and not otherwise.
[Para 31]
In Courts opinion, Rule 4.3, if it is allowed to be read that any person who graduated from any other University located in Gujarat State will be considered after selection of the candidates in the merit list as per Rules 4.1 and 4.2, and is applied to reserved category, then, such application would be ultra vires the Constitution, but if Rule 4.3 is read for general category candidates, then, Rule is not ultra vires. [Para 32]
So far as Rule 5.4(a) is concerned, it is apparently ultra vires the Constitution, it runs contrary to the Rules framed by the State, it runs contrary to the Regulations made by the Medical Council of India and the mandate of the Constitution. [Para 33]
Law Laid Down :
Reserved seat cannot be dereserved on ground of institutional preference holding that in institution candidate for reserve seat was not available.
Head Note :
(b) Words and Phrases - Reservation and preference - Distinction between - Indicated.
Held :
One must not forget the basic distinction between reservation and preference. Reservation may be for whole class, which is just like that a compartment in the rail is reserved for the ladies, gents would not be allowed, but further reservation can be made in favour of old, sick and feeble women and then, authority can always say that preference would be given to sick, old and feeble women, then, other women travellers can be asked not to board the train, but in case, such persons are not available, it cannot be said that no woman would be allowed to enter in the compartment. Reservation is for a class or community. If reserved seat can be filled by a person belonging to the said category, then, none else would be entitled to it and in case, such candidate is not available, then, seat can be dereserved and can be offered to a general candidate. [Para 19]
Conclusion :
Respondent University in the name of institutional preference cannot dereserve the seat and refuse admission to petitioner.
Cases Referred :
Pradeep Jain vs. Union of India, 1984 (3) SCC 654 = AIR 1984 SC 1420;; AIIMS Students Union vs. AIIMS & Ors., 2002 (1) SCC 428 = AIR 2001 SC 3262;; Saurabh Chaudri & Ors. vs. Union of India & Ors., 2003 (11) SCC 146 = AIR 2004 SC 361.
Decided in Favour of :
Petitioner
( 1 ) THE petitioner-Vinodkumar Rasiklal Vahoniya being dissatisfied by non-fructification of his desire/strong will to secure admission in Post-Graduate Degree Course run by the respondent No. 1-University of bhavnagar, is before this Court with a challenge to and submission that admission to post-graduate course other than M. Ch. and D. M. , specially, Rules 4. 1, 4. 2, 4. 3, 5. 4 (a) and 5. 4 (b) be declared as unconstitutional being arbitrary, as they enable Bhavnagar University to convert a reserved seat, reserved for Scheduled tribe candidate into unreserved seat and that a writ be further issued that the petitioner is entitled to admission in post-graduate course (Medicine) and that admission of respondent No. 3, namely, Dr. Ripal H. Dhariya is contrary to the provisions of Art. 15 (4) and the policy of the State in relation to reservation and admission to reserved candidates.
( 2 ) IT is to be noted that respondent No. 1-Bhavnagar University ("university" for short) started imparting education in Medical Courses since 1996 and was recognized as such by Medical Council of India. The University declared P. G. Medical Courses in various subjects other than M. Ch. and D. M. , colleges of the above courses are affiliated with Bhavnagar University. For the present session, rules were made effective from January, 2006. The University declared detailed admission programme along with selection criteria for selection of the candidates to the P. G. Medical Courses. Copy of detailed programme along with Ordinance and detailed Rules of admission has been annexed by the petitioner at Annexure-A. The petitioner desirous of pursuing studies further made application since after his completion of M. B. B. S. in the year 2004 from B. J. Medical College, affiliated to the Gujarat University. The petitioner claims and the fact is not seriously disputed by the respondents that he belongs to scheduled Tribe category. Case of the petitioner is that he was called for interview on 19-5-2006 in the office of the Dean of Medical College, Bhavnagar and after he was selected, he was asked to deposit a sum of Rs. 9,850/- towards fees. It is further submission of the petitioner that Bhavnagar University had prepared and declared merit list of 2006 pertaining to different categories. Apart from the first merit list, they prepared second merit list of the candidates who are coming from other universities of Gujarat and third merit list was also prepared pertaining to candidates who had passed their examinations from the universities of other States. According to the petitioner, his name was included in the second merit list, that is, a candidate who had passed from some university of Gujarat and not from the respondent-University. It is an assertion of the petitioner that he was called for interview, he was given confirmation letter, but immediately after issuance of the letter, he was called back and was denied admission on the ground that he was not eligible having not passed from the respondent-University.
( 3 ) THE petitioner says and submits that the rules framed by Bhavnagar university relating to admission so far as they propose to dereserve a seat, reserved for Scheduled Tribe candidate are per se illegal, contrary to the provisions of the Constitution of India and the State policy relating to reservation. His submission is that institutional preference may not be bad, but the University is not entitled to dereserve a reserved seat on non-availability of an institutional candidate of the reserved category, but is obliged to offer the seat to a student of the same category even if he is a person who has passed from any other university of Gujarat. His submission is that 2 seats in the course of Medicine and Gynaecology were reserved by the respondent University for Scheduled Tribe candidates, though the petitioner was comparatively meritorious to the institutional candidate, seat of Gynaecology was offered to institutional Schedul
