YASHWANT CHAUHAN v. STATE OF RAJASTHAN — 1996 DIGILAW 1216 (RAJ)

Judgment V. K. SINGHAL, J. ( 1 ) ALL these writ petitions are disposed of by this common order because the questions involved in each of them are common. ( 2 ) IN the State of Rajasthan, there are six medical colleges and number of seats sanctioned for admission in 1995 was 600. In the College at Kota five seats are stated to be vacant; four in respect of the quota of Government of India and one has not joined who was given admission. There are 40 seats in BDS College which have all been filled up. Few of the petitioners here were given admission in BDS and they have claimed admission in MBBS Course which will be considered in the foregoing paras. In the instructions for the guidance of the candidates intending to appear in PMT, 1995, guidelines for admission were also informed and clause (2) of the guidelines is as under:-" 2. Reservation of seats: (a) 15% of the seats will be reserved for being filled up by All India Entrance Examination to be conducted by an agency of Government of India. (b) Twenty seats (4 in each of the Medical Colleges of Rajasthan) are reserved for candidates nominated under the Central Pool. Out of these twenty seats, five seats (one in each Medical College of Rajasthan) are reserved for the bona fide repatriates from Burma, Sri Lanka, Uganda, Zaire and Vietnam who migrated to India during the last five years. Provided that non-availability of such candidates, the unfilled seats out of these five seats will be filled up from the other category of candidates nominated under the central pool. Note:- These seats will be filled up from category of candidates shown in Annexure 1. These students, will be nominated by authorities as per Annexure-I. (c) Three seats shall be reserved for natural born (not adopted) sons / daughters of defence personnel (serving / retired ). (d) 8% seats reserved for natural born candidates (not adopted) belonging to scheduled castes as notified in the Presidential order for the State of Rajasthan and who fulfil conditions as laid down in clause (3 ). 25% of these reserved seats shall be reserved for girl candidates belonging to scheduled castes. (d) 8% seats reserved for natural born candidates (not adopted) belonging to scheduled castes as notified in the Presidential order for the State of Rajasthan and who fulfil conditions as laid down in clause (3 ). 25% of these reserved seats shall be reserved for girl candidates belonging to scheduled castes. (e) 6% seats are reserved for natural born candidates (not adopted) belonging to ST as notified in the Presidential Order, for the State of Rajasthan and who fulfil conditions as laid down in clause, (3 ). 25% of the above seats shall be reserved for girl candidates belonging to scheduled tribes. (f) 25% of the seats excluding seats reserved under sub-clauses (a) to (e) above are reserved for girl candidates who fulfil conditions as laid down in clause (3 ). (g) Two seats shall be reserved for the physically handicapped candidates. The admission to the physically handicapped candidates shall be made provided the disability is not of the nature which may hamper the functioning of the candidates in his/her medical profession. Notes:- (i) The unfilled reserved seats of any category from sub-clauses (c) to (g) will be filled up from the candidates of general category who fulfil conditions as laid own in clause (3 ). (ii) If the merit list of any reserve category unexhausted after completing the reserve quota of that category, then the candidates from that remaining list shall be eligible for consideration on merit against the general merit. Illustration: If five physically handicapped candidates figure on the merit list such that the merit of 5th physically handicapped candidate is higher than the general candidate getting admission, then 3rd, 4th and 5th physically handicapped candidates will also be getting admission as candidates in general merit. " ( 3 ) THE validity of the illustration under the note of the above guidelines has been challenged in S. B. Civil Writ Petition No. 5005 / 95. " ( 3 ) THE validity of the illustration under the note of the above guidelines has been challenged in S. B. Civil Writ Petition No. 5005 / 95. Besides this the point for decision by this court is as to whether the candidate if belonging to any reserve category has obtained more than minimum marks on which the admission was given in general category should be considered in general category i. e. the percentage of reservation fixed for the reserved category should be reduced from the number of such candidates who have obtained the admission on account of their merit and the marks obtained were more than the cut-off marks for which the admissions were given in general category. ( 4 ) IT is stated that the cut-off marks for which the admission was given in general category were 915. In respect of SC category the minimum marks for which the admissions have been given are stated to be 793 and for the girls it is 708. In respect of SC category in respect of boys candidates to whom the admissions have been given are 749 marks while for girls it was 567. The disabled candidates have obtained 988, 935 marks and 922 marks while the candidates belonging to the category of defence personnel have obtained 965, 949 and 942 marks. Besides these three candidates, the other two candidates Kamal Preet Kaur and P. K. Gupta received 930 and 920 marks respectively and have been given admissions as general candidates. There are 111 seats reserved for girls candidates and it is stated that the last candidate having 924 marks was given admission. ( 5 ) THE argument of Mr. Goyal, learned counsel for the petitioners is that if a candidate has been selected because of his / her own merit irrespective of the fact whether he / She belongs to the reserved category or not, then the percentage reserved for giving admission is not to be reduced by the candidature of such a candidate. Goyal, learned counsel for the petitioners is that if a candidate has been selected because of his / her own merit irrespective of the fact whether he / She belongs to the reserved category or not, then the percentage reserved for giving admission is not to be reduced by the candidature of such a candidate. In support of his contention he has relied on the decision of Kerala High Court in the case of R. Jacob Mathew v. The State of Kerala, AIR 1964 Ker 39 wherein after taking into consideration the provisions of Article 15 (4) of the Constitution of India, it was observed that by providing a particular percentage for that group, it does not take away the right of any particular group from competing on the general merit basis and securing as many seats as possible. The percentage which is fixed for reservation was considered as not to be cut down for that class as a whole. The few seats that may be captured by the members of that group on a general merit basis, are seats obtained by them in their individual right in accordance with the guarantee given to them under Art. 29 (2) and not as member of a backward class, for whom protection is provided under Art. 15 (4 ). When a candidate competes in the general merit pool, no consideration, excepting that of merit, comes into the picture; and surely no other considerations can be taken into account also. That is an individual right guaranteed under Art. 29 (2 ). The right guaranteed under Art. 15 (4) is for a particular class as such. ( 6 ) THE decision of Mysore High Court in the case of S. A. Partha v. The State of Mysore, AIR 1961 Mys 220 was also considered in this case besides the judgment of the Andhra Pradesh High Court in the case of Raghuramulu v. State of Andhra Pradesh, AIR 1958 AP 129 was considered in this case. ( 7 ) THE decision of the Apex Court in the case of The State of Andhra Pradesh v. U. S. V. Balaram, AIR 1972 SC 1375 has also been relied where the dispute was with regard to a further reservation which was provided out of the common entrance test for a higher secondary course (Multipurpose) candidate and was considered arbitrary. The provisions of Art. 15 (4) were considered to be exception to Art. 15 (1) and Art. 29 (2 ). The Apex Court observed that the backward classes for whose improvement special provision is contemplated by Art. 15 (4) must in the matter of their backwardness be comparable to Scheduled Caste and Scheduled Tribes. It is further observed that it is not exiomatic that the educational average of the class should not be calculated on the basis of the student population in the last three high school classes. Nor that only those classes whose average is below the State average that can be treated as educationally backward. The caste is also a class of citizen and a caste as such may be socially and educationally backward. If after calculating the necessary data it is held that the caste is socially and educationally backward, the reservation made of such persons may be to help them, notwithstanding the fact that few individual of that group may be socially and educationally above the general average. ( 8 ) IT was in the light of the selection of the reservation of backward class, the court has taken into consideration the Kerala High Court and that of Andhra Pradesh High Court decisions, referred to above, where a different view was taken and observed that if a situation arises wherein the candidates belonging to the group included in the list of backward classes are able to obtain more seats on the basis of their own merit, it is the duty of the Government to review this question of further reservation of seats of such group. This has to be emphasized because the Government should not act on the basis that once a class is considered as a backward class, it should continue to be backward for all time. The observations which have been made by the Apex Court were with regard to the reservations amongst the backward class and the right of the Government to consider a particular class if it has reached the stage for being excluded from the list of backward classes. ( 9 ) THE decision of V. V. Giri v. D. Suri Dora, AIR 1959 SC 1318 has also been relied where the dispute was with regard to election to the House of the People even from a double-member constituency and one seat was reserved for ST. ( 9 ) THE decision of V. V. Giri v. D. Suri Dora, AIR 1959 SC 1318 has also been relied where the dispute was with regard to election to the House of the People even from a double-member constituency and one seat was reserved for ST. The claim of eligibility for reserved seat was considered not to exclude the claim of a candidate of ST to contest for the general seat. The voters were having the right to cast vote to any two candidates of their choice. The filing of nomination paper for a reserved category in such a double-member constituency was considered as not affecting the right of Scheduled Tribe candidate and it was observed that the claim for eligibility for the reserved seat does not exclude the claim for the general seat; it is an additional claim and both the claims have to be decided on the basis that there is one election from the double-member constituency. On the basis of this decision, it was contended that out of two posts when one was reserved for Scheduled Tribe and in fact both the Scheduled Tribe candidates were elected having secured highest votes then on that basis the right of Scheduled Tribe Candidate to contest for general category cannot be taken away and thus both the seats were considered to be for Scheduled Tribe candidate. On the same analogy it is stated that if the candidate of reserved category have secured meritorious marks so as to fall in general category, then such candidate cannot be considered for reservation made and has to be excluded out of the total reservation. ( 10 ) THE decision of the Constitutional Bench of the Apex Court in the case of Indra Sawhney v. Union of India, AIR 1993 SC 477 was also referred it was observed that the reservation under Art. 16 (4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates. This judgment was with regard to overall percentage of 50% for which the reservation could have been prescribed and in that context the above observations were made. This judgment was with regard to overall percentage of 50% for which the reservation could have been prescribed and in that context the above observations were made. ( 11 ) THE decision of Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899 has also been relied wherein the reservations provided in SRO 291 read with SRO 272 dated 3-7-1982 was taken into consideration along with paras 2, 3 of SRO 272. On the basis of these orders, it was said that they make it clear that 50% of general categories seats have to be filled in the first instance and the remaining seats are to be offered to the reserved category thereafter. Counting the reserve candidate, who falls within the first 50 positions as general candidate, is thus permissible under SRO 272. The executive orders providing reservations have not been challenged. There is no material on the record to show that procedure followed to fill the reserve/general vacancies has resulted in excessive representation to the reserve category. ( 12 ) THE decision of Anil Kumar Gupta etc. v. State of Uttar Pradesh JT 1995 (5) SCC 505 was also relied wherein the Government directions were revised on 17-12-1994 and it was provided that if a candidate of reserved category mentioned in para 3 is selected along with general category candidate on the basis of merit, he shall not be adjusted against the reserved seat as Government order in this regard has already been issued. So, 50% seats of general category shall be filled on the basis of merit prior to filling of reserve seats mentioned in para 3 above. While interpreting the right of the candidates belonging to the reserved category, it was observed that it was wrong to direct the fifteen per cent special reservation seats to be filled up first and then take up the O. C. (merit) quota (followed by filling of O. B. C. , S. C. and S. T. quotas ). The proper and correct course is to first fill up the O. C. quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i. e. S. C. , S. T. and B. C. ; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied in case it is an over-all horizontal reservation no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/ accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/ accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied. Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O. C. quota. ( 13 ) THE decision of this court in the case of Charu Agrawal v. State of Rajasthan, S. B. Civil Writ Petition No. 2481/1992, decided on 12-8-1992 has also been relied wherein the note and illustration as existed in the guidelines of 1995 were also taken into consideration and it was observed that the candidates who have been selected in the general list cannot be excluded from the reserved quota fixed. A special appeal No. 347 / 94 has been filed against this order and is said to be pending. Division Bench of this Court in the case of Ajay Kumar v. State of Rajasthan, D. B. Civil Writ Petition No. 3429 / 88 decided on 7-11-1988 held that the candidate who was declared passed in general being handicapped candidate, it cannot reduce the reservation made for such candidate and directions were given for admission. In this case, the guidelines of the Ordinance was not taken into consideration and the decision of Allahabad High Court in the case of Kashiram Khanna v. Union of India, 1986 Labour and Industrial Cases, 602 and S. B. decision of this Court in the case of Kum. Shikha Choudhary v. State of Rajasthan, 1984 WLN (UC) 394 were also taken into consideration. In the case of Kum. Shikha Choudhary v. State of Rajasthan, 1984 WLN (UC) 394 were also taken into consideration. In the case of Kum. Shikha Choudhary, referred to above, it was observed that the object of reservation does not appear to be that even when the candidates of the reserved category are meritorious, over the candidates of general category, they can be refused admission. So there can be transfer of category in this particular situation. Similarly, if meritorious candidates of certain reserved category are available over the candidates of general category, then, in such a case they can equally be considered for admission in general category. ( 14 ) MR. M. Rafiq submits that in respect of disabled candidates since the candidates who have been given the admissions as having secured more marks then the cut off marks for which the general category candidates were given admissions, the petitioners should be considered against the reserved quota and besides relying on the above decision, he has relied the decision of this court given in the case of Kumari Manuja Agrawal v. The State of Rajasthan S. B. Civil Writ Petition No. 456l /1989, decided on 1-12-1989. In this case, the illustration under the guidelines was considered and it was observed that in my opinion, this goes against the very intention and the purpose of the Government for which it has made reservation in clauses (d) to (g ). If a candidate out of the reserved category is otherwise eligible on merit, he should always be treated in the general category and should not be treated against the reserved quota. Against this judgment, no appeal was filed because the writ petition was dismissed and it was left open to the Government to consider the case of the petitioner sympathetically. ( 15 ) THE decision in the case of Miss Uma Patnaik v. Convenor, M. B. B. S. /b. D. S. Selection Board-cum-Principal, S. C. B. Medical College, Cuttack, AIR 1994 Ori 117 was relied and it was observed that there is no bar for a candidate belonging to the reservation categories to be considered for the general category. Clause 2. 1 Note (ii) was taken into consideration where it was provided as under:-" (II) Candidates shall apply for admission against seats reserved for only one category of reserved seats specified in columns 3 to 6. Clause 2. 1 Note (ii) was taken into consideration where it was provided as under:-" (II) Candidates shall apply for admission against seats reserved for only one category of reserved seats specified in columns 3 to 6. In the event of detection of applications submitted for more than one category of reserved seats by the same applicant, all the applications shall be rejected. Applicants duly applying for one category of reserved seats shall be considered for general seats as well on merits. " ( 16 ) ON the basis of the above clause, it was observed that the intention is that if a candidate is selectded on merit in respect of general category, he / she shall not be considered for the reservation category. But that it is not the end of the matter. It is prescribed in clause 9. 2 that scheduled caste/scheduled tribe candidates securing less than 45 marks and the other candidates securing less than 75 marks out of the total 150 marks in the Entrance Examination shall not be selected. Clause 9. 1 stipulates that selection is to be made from amongst eligible candidates, category-wise in order of merit on the basis of marks obtained by them in the Entrance Examination. Placement of candidates is prescribed in Clause 10. Clause 10. 1 is relevant and it stipulates that placement of candidates in three Medical Colleges and the Dental wing of the S. C. B. Medical College, Cuttack shall be made by the Selection Board taking into account the candidates position in the merit list and the order of his/her preference. It was considered and observed that if a candidate is eligible to be considered in the general category, yet is placed at a disadvantageous position by not getting a seat in a college of his/her preference, he/she cannot be forced to accept the same. The correct procedure was considered that first the general seats are to be filled up on the basis of marks secured by candidates. If any candidate belonging to reservation category, subject of course to verification of the position that he has got a seat in the college of his choice. In such a situation the candidate is to be considered in respect of general category and not in respect of reservation category. If any candidate belonging to reservation category, subject of course to verification of the position that he has got a seat in the college of his choice. In such a situation the candidate is to be considered in respect of general category and not in respect of reservation category. This procedure has to be adopted in respect of 21 seats for scheduled castes, 33 seats for scheduled tribes, 3 seats for physically handicapped and 12 seats for green-card holders. ( 17 ) THE decision in the case of Dr. Sida Nitinkumar Laxmankumar Laxmanbhai, AIR 1991 Guj 43 was also referred which was a matter with regard to admission to P. G. Medical course and the rules governing the admission and selections were framed. In this matter the options were to be given. The Court observed that a student belonging to Scheduled Caste / Scheduled Tribe or Socially and Educationally Backward class would be tempted to opt for reserved category seats only, since he would not know what will be in store for him if he waits till his turn reaches in the common list. Thus a meritorious student, even though he may be one of the first ten topping the merit list, would be tempted to secure a seat reserved for SC / ST or SEBC as the case may be. Thereby he would reduce the possibility of securing such reserved seat by a student lower in merit and belonging to SC/st or SEBC. Such procedure would defeat the very idea and object of reservation and of conferring certain benefits by making special provisions. It was further observed that the idea of making reservation is to help weaker section of the society including SC/ ST. But the object is not to induce and tempt the able and efficient persons even amongst SC/ ST and weaker section of the society to crave for reserved seats and cling to that atmosphere of permanent deprivation and degradation. If and when he is able to secure his place on his own merit without the help of launching or padding provided for by reservation or special provision, he is to be encouraged to do so and feel confident about his capabilities and tell the world that despite several deprivations and depraved situation, he is able to secure higher rank and secure place above many others claiming unreserved category of seats. The procedure adopted by the University is likely to shake the confidence and spirit of initiative of the members belonging to SC / ST and SEBC. It cuts at the very root of the objects and ideals for which the reservation is to be provided and for which the special provisions are to be made. ( 18 ) THE decision in the case of P. Lakshmipathi v. Co-ordinator, Common Admissions Committee, College of Engineering, Osmania University, Hyderabad, AIR 1982 Andhra Pradesh 424, was also relied. In this case the Government order dated 1-11-l977 (sic) was taken into consideration which provided that in the first instance, candidates will be selected for the general seats (unreserved seats) only, strictly in the order of merit and that, only thereafter selection shall be made for such reserved groups, separately, again in the order of merit. If sufficient number of candidates are not available to fill up the seats reserved for Scheduled Castes, they shall be filled up by suitable candidates from Scheduled Tribes and vice-versa. One common examination for admission to B. E. /b. Tech. course was held and the students were not even asked to indicate their preference with respect to the subject / course of study, in their applications, for admission. They were asked to indicate the choice, only at the time of interview, and in the case of candidates belonging to backward classes, who were included in the general pool, they were allowed to shift to the reserved quota, with a view to accommodate and respect their choice as to subject/course of study. It was observed that the orders of the Government under the rules of administration applicable to the academic year 1981-82 should have been followed, and certain principles were laid down and it was observed that had the principles been followed, there would have been no occasion where a backward class candidate, getting admission on his own merit in the general pool, would have been unable to get the subject/course of study in his choice, while a less meritorious candidate belonging to backward classes and who gets admission only because of the rule of reservation, would have got the subject / course of study of his choice. It was considered that all the candidates in the general pool should be treated alike, irrespective of the fact whether they belong to a reserved group, or not. It was considered that all the candidates in the general pool should be treated alike, irrespective of the fact whether they belong to a reserved group, or not. Secondly, in the name of respecting the choice of a backward class candidate in the general pool, the Universities are depriving an equal number of backward class candidates from admission to B. E. /b. Tech altogether, which is not admissible. ( 19 ) MR. Goyal has also drawn my attention to the Gazette Notification dated 28-9-1993, wherein in respect of employment which has reserved for backward classes to the extent of 21%, it has been clarified that the candidates who fall in general category and have been selected on account of their own merit would not be counted in the reserved quota. ( 20 ) MR. Joshi appearing in Writ Petition No. 4175/95 has stated that the admissions have been given more than the seats reserved to the reserved candidates. This position has factually been denied and it is stated that after receipt of the result from the University on account of increase in marks on re-evaluation the position of two candidates have been changed in the merit list and after changing that position the number of seats reserve have been kept intact and the last candidates have been eliminated. ( 21 ) MR. Rastogi has submitted that in respect of the categories reserved for defence personnel, the admissions have been given to Prashant Mathur, Narendra Singh and Harjeet Singh who have secured 940, 941, and 942 marks respectively and the candidates Naveen Kumar Sharma, Vijay Singh Shekhawat and Rajesh Mehra who have secured 910, 909 and 900 marks respectively, have also been considered. It is stated that illustration is contrary to the Ordinance of the University and for that purpose reliance has been placed on the decision in the case of Miss Alka Chaturvedi v. State of Rajasthan, 1993 (1) WLC (Raj) 519, on the proposition that the guidelines contrary to the Ordinance cannot be issued. ( 22 ) IT is also submitted that the guidelines have to be read along with the main provisions and the note and the illustration given. ( 22 ) IT is also submitted that the guidelines have to be read along with the main provisions and the note and the illustration given. It is submitted that the illustration given as a matter of fact helps him inasmuch as it contemplated that the admission would also be given to the candidates of the category mentioned in the illustration even after the reserved seats are filled in. ( 23 ) THE learned Advocate General appearing on behalf of the State Government has pointed out that the result was declared on 20-8-1995 and the mark-sheets were sent on 22-8-1995 and the last date for giving admission was 7-9-1995. It is stated that the petitioners have not arrayed the candidates who have already been given admissions and at the moment there are only five seats lying vacant at Kota. Four seats are in respect of the quota which was meant for the Government of India nominated candidates and one of the candidates selected has not joined in MBBS Course. Reliance has been placed on the provisions of Ordinance 272 which reads as under:-"o. 272. Notwithstanding anything contained in the above Ordinances the following provisions shall apply to the MBBS Examination and to the students admitted to the m. B. B. S. Course with effect from the academic year 1978-79: 2 II. Reservation: (a) Fifteen seats (3 seats in each of the Medical College of Rajasthan) are reserved for students nominated by Government of India. (b) Five seats (one in each Medical College of Rajasthan are reserved for the bona fide repatriates from Burma, Srilanks, Uganda, Zaire and Vietnam who migrated to India during the last five years. Students born in India of repatriated parents would not be eligible. (c) Three seats shall be reserved for natural born (not adopted sons/daughters of defence personnel/ (service/ retired ). (d) 7% seats are reserved for natural born candidates (not adopted) belonging to S. C. as notified in the Presidential order for the State of Rajasthan and who fulfil conditions as laid down in Rule 3. 25% of the above reserved seats shall be reserved for girl candidates belonging to the Scheduled Castes. (e) 6% seats are reserved for natural born candidates (not adopted) belonging to S. T. as notified in the Presidential order for the State of Rajasthan and who fulfils conditions as laid down in Rule 3. 25% of the above reserved seats shall be reserved for girl candidates belonging to the Scheduled Castes. (e) 6% seats are reserved for natural born candidates (not adopted) belonging to S. T. as notified in the Presidential order for the State of Rajasthan and who fulfils conditions as laid down in Rule 3. 25% of the above reserved seats shall be reserved for girl candidates belonging to Scheduled Tribes. (f) 25% of the seats, excluding seats reserved in clauses (a), (d) and (e) above are reserved for girl candidates. (g) Two seats shall be reserved for disabled candidates. The admission to the disabled candidates shall be made provided the disability is not of the nature which may hamper the functioning of the candidate in his/her medical profession. (h) In case the reserved seats are not filled in a particular category, the unfilled seats will be transferred to general seats. These reservations in each category will also include the candidates belonging to SC/st, who were admitted on merit against general seats. In case the reserved seats are not filled in a particular category the unfilled seats will be transferred to general seats. If eligible and suitable girl candidates of Scheduled Castes/ Scheduled Tribes are not available these seats will be filled in by the male candidates of each category. Provided that if the number of qualified candidates belonging to natural born Scheduled Caste/ Tribes are not sufficient to cover the above reservation, a maximum of 6 reserved seats for S. Cs. and 4 reserved seats for S. Ts. in a year may be carried forward to the subsequent year. " ( 24 ) THE decision of Bombay High Court in the case of Anil v. The Dean, Government Medical College, Nagpur, AIR 1985 Bom 153 has been relied wherein the decision of R. Jacob Mathew v. State of Kerala, AIR 1964 Ker 39, was dissented and the decision of Andhra Pradesh High Court in the case of Puppala Sudarsan v. State of Andhra Pradesh, AIR 1958 Andh Pra 569 and of Mysore High Court in S. A. Partha v. State of Mysore, AIR 1961 Mys 220 was followed. It was observed that Article 15 (4) is only by way of exception to the fundamental right guaranteed under Clause (1) of Article15 and Clause (2) of Article 29 and that it is only the enabling provision. It was observed that Article 15 (4) is only by way of exception to the fundamental right guaranteed under Clause (1) of Article15 and Clause (2) of Article 29 and that it is only the enabling provision. No right is guaranteed to the Backward Communities or Classes under that class. It was observed that the question is not whether the class for which reservation has been made in pursuance of power under Article 15 (4) is entitled to compete on general merit basis, thus securing as many seats as possible. The question is whether the quota of reserved seats could be reduced to the extent of seats captured by members of such class in open merit and on that basis it was considered that notwithstanding the fact that class has been treated as backward and has been given protection under Art. 15 (4) by providing a particular percentage of that group, it does not take away the right of any member of that group from competing from general category by securing seat as many as possible. ( 25 ) I have considered over the matter. The provisions of Ordinance 272 of the university Ordinance provides the procedure for admission to MBBS Course. ( 26 ) IT may be observed that if the guidelines are contrary to the Ordinance, they are inapplicable and non est and the Ordinance will hold the field. In the Ordinance it is provided that in case the reserved seats are not filled in a particular category, the unfilled seats will be transferred to general seats. This contemplates that firstly the reserved seats are to be filled up and if there are unfilled seats that can be transferred to general category. It is also provided that reservation in each category will also include the candidates belong1ilg to SC/ ST category who were admitted on merit against general seats. This also contemplates that the candidates belonging to SC/ ST categories who were admitted on merit against general seats will also be considered in reservation of each of the category. As a matter of procedure, at the time when the applications are submitted, the candidates has to point out as to whether he is claiming the admission on the basis of any reservation. A separate list of each of the categories of reservation has to be prepared and admission has to be given on merit. As a matter of procedure, at the time when the applications are submitted, the candidates has to point out as to whether he is claiming the admission on the basis of any reservation. A separate list of each of the categories of reservation has to be prepared and admission has to be given on merit. The guideline (f) referred to above has also contemplated that 25% of the seats including the seats reserved under clauses (a) (d) (e) above are reserved for girl candidates who fulfil the conditions. Thus, firstly, the list from the categories reserved from (a) to (e) has to be filled up and then 25% reservation of seats for girl candidates have to be filled up from the merit list prepared separately for the girl candidates. ( 27 ) A note has been provided under the guidelines and note (ii) provides that if the merit list of any reserve category remains unexhausted after completing the reserve quota of that category, then the candidates from that remaining list shall be eligible for consideration on merit against the general merit. This note as a matter of fact is not properly worded, but it transpires from illustration given thereunder that if there are five physically handicapped candidates figure on the merit list such that the merit of 5th physically handicapped candidate is higher than the general candidate getting admission as candidates in general merit. The result of the note and the illustration is that the candidates of reserved category are not excluded from claiming any right in general category. There may be a circumstance where the candidate for any of the reserved category is not having the maximum marks which the last candidate of the general candidate to whom the admission is given is having. In such a case from the list of the reserved category of that class the admission would be given to him. ( 28 ) THE Bombay High Court in Ravindra Sahadeo Sonawane v. Dean, Grant Medical College, Bombay, 1989 (4) SLR 118, observed that the list of open merit category is to be prepared first and allotted and it is only thereafter the seat in the reserved categories are to be allotted. ( 28 ) THE Bombay High Court in Ravindra Sahadeo Sonawane v. Dean, Grant Medical College, Bombay, 1989 (4) SLR 118, observed that the list of open merit category is to be prepared first and allotted and it is only thereafter the seat in the reserved categories are to be allotted. The Allahabad High Court in the case of Kashi Ram Khanna v. Union of India, 1986 (52) IFLR 131, while interpreting the provisions of Article 16 (4) observed that in respect of appointment and promotion to members of Scheduled Castes and Scheduled Tribes selection on merit of members of SC is not to be adjusted against the seat obtained on merit and on that basis the notification dated 22-12-1983 of the Railway Board was upheld. ( 29 ) IN the matter of Jacob Mathew v. State of Kerala, reliance was placed on the decision of V. Raghuramulu v. State of Andhra Pradesh, AIR 1958 Andh Pra 129. The provisions which were under attack have been reproduced in paras 16 and 17 which contemplate under clause (e) for filling up of the remaining seats in the manner indicated therein after giving effect to the reservation in clauses (a) to (d) of para. 2, item 1. In the case of V. Raghuramulu (referred to above) illustrations have been given as under:-"to illustrate: the State may allot a minimum number of seats in professional Colleges for backward classes. This provision would be for the advancement of the backward classes for irrespective of the marks they secured, certain seats would be guaranteed to those classes. But if in a particular locality the members of the backward classes secure high marks and are able to compete with students of other classes they would not be deprived of their right to get admission into colleges beyond the quota allotted to them. Such a provision would certainly be for the advancement of the backward classes. On the other hand, if a maximum be fixed, instead of providing for the advancement of those classes in the contingency visualised above, it would retard their progress; for students of those classes who secure more marks than students who compete for the general seats and get less marks than students belonging to their classes would not get seats. To that extent the provision made by the State would be in excess of the power conferred on it under Cl. To that extent the provision made by the State would be in excess of the power conferred on it under Cl. (4) and, therefore, cannot affect the fundamental right of the citizens whether they belonged to backward classes or not. To put it differently, every individual citizen as a citizen whether he belongs to the backward classes or not has a right to get admission into an educational institution of the kind mentioned in Cl. (2) of Art. 29. The said fundamental right is abridged by the special provision made by the State for the advancement of any socially and educationally backward classes of citizens. If the provision is for the advancement of such classes the fundamental right of a citizen is not infringed for his right itself is reduced by the provision. If the provision though it purports to be for the advancement of the backward classes, in effect abridges their rights, the entire rights, the entire provision or that part of it which abridges their rights would be bad leaving untouched the fundamental right of every citizen whether he is a member of the backward classes or not. ( 30 ) IN the case of Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899 , the Apex Court found that the reservations have been provided in SRO 291 read with SRO 272 dated 3-7-1982. Reading paras2 and 3 together it was found that 50% reserved seats will go to other reserved candidates in absence of any material to show that procedure followed resulted in excessive representation to reserved category. If the position in Rajasthan is also similar that first the general category is to be filled up then the assistance of this judgment can be taken. ( 31 ) IN S. A. Partha v. The State of Mysore, AIR 1961 Mysore 220, the details of the Government order have been given in para 6 and on that basis it was observed as under :-"the only manner in which the reservations in favour of Scheduled Castes and Scheduled Tribes and other Backward Classes can be worked out without being attacked as unconstitutional is to treat the reservation made in respect of each one of those classes as one in the nature of a guaranteed minimum of seats in open competition. For this purpose, it is necessary to prepare one consolidated list arranging all the applicants irrespective of castes or categories in the order of merit. If within the limit of the number of persons to be selected in the said list in the order of merit, each one of the three categories of Scheduled Castes, Scheduled Tribes and other Backward Classes secured the number of seats reserved for each one of them or a larger number, then nothing more need be done. If, however, any one of those categories secures less number of seats than the minimum guaranteed to it within the said limit, then the deficiency must be made up by selecting in the order of merit from among the members of that category lower down in the list such number to the extent available as is necessary to make up the deficiency and at the same time, deleting an equal number of persons belonging to the unreserved category counting from the bottom of that part of the list falling within the limit of the number to be selected. " ( 32 ) IN the case of V. V. Giri v. D. Suri Dora, AIR 1959 SC 1318 , the Apex Court observed as under :-"section33 (6) lays down that nothing in this section shall prevent any candidate from being nominated by more than one nomination paper for election in the same constituency. The effect of S. 33 (2) is that unless a member of the Scheduled Tribe makes the required declaration he would not be entitled to claim election to the reserved seat. In other words, if a member of the Scheduled Tribe does not want to be considered for election to the reserved seat he need not make the said declaration; and in that case he would be entitled to contest the election only for the general seat. But it does not follow that if a Scheduled Tribe candidate makes the said declaration he forfeits his right to contest for the general seat. It is necessary to point out at this stage that the prescribed nomination paper (Form 2a) is common to all the candidates. In regard to the candidates contesting for the reserve seat, however, the form prescribes the declaration which they are required to make. It is necessary to point out at this stage that the prescribed nomination paper (Form 2a) is common to all the candidates. In regard to the candidates contesting for the reserve seat, however, the form prescribes the declaration which they are required to make. "it was further observed as under :-"the election to the House of the People from a double-member constituency is held as an election from the whole of the constituency as such. It is on that basis that the nomination papers are required to be filled. The notifications about the nominations are published and the list of the validly nominated candidates is announced on the same basis. The counting of votes is similarly made by reference to all the candidates. It is only when the result of the election is prepared for declaration that the votes of candidates who have made the prescribed declarations are first taken into account and the result of the election in respect of the reserved seat is first determined, and then the votes secured by the remaining candidates are taken into account and the result of the election for the other general seat is determined and declared. " ( 33 ) THE decision of this Court in the case of Kumari Shikha Choudhary v. State of Rajasthan, 1984 WLN (UC) 394, is based on the interpretation of sub-clause (g) of clause (iii) of the instructions for admission which provides that the eligible candidates will be admitted in order of merit for the general as well as reserved seats judged on the basis of the aggregate of marks secured in Physics, Chemistry and Mathematics at Pre-Engineering Test subject to availability of seats. ( 34 ) IN State of Andhra Pradesh v. U. S. V. Balaram, AIR 1972 SC 1375 , it was found that Kerala High Court has taken a different interpretation than Andhra Pradesh High Court and on that basis it was said that if the candidates of backward classes are able to obtain more seats on the basis of their own merit, it is the duty of the Government to review the question of further reservation of seats for such groups. This has to be emphasised because the Government should not act on the basis that once a class is considered as a backward class it should continue to be backward for all time. This has to be emphasised because the Government should not act on the basis that once a class is considered as a backward class it should continue to be backward for all time. If once a class appears to have reached a stage of progress, from which it could be safely inferred that no further protection is necessary, the State will do well to review such instances and suitably revise the list of Backward Classes. In the light of the observations made above, I feel that the policy of reservation requires reconsideration and in no case the guidelines should be unambiguous so as to minimise the litigation. ( 35 ) IN the case of Miss Uma Pattnaik v. Convenor, M. B. B. S. / B. D. S. Selection Board-cum-Principal, S. C. B. Medical College, Cuttack, AIR 1994 Orissa l17, the language of the prospectus has been reproduced in para 9 of the report wherein it was clearly mentioned that the applicant duly applied for one category of reserved seat shall be considered for reserved seat as well on merit which is not the position over here. ( 36 ) LEARNED counsel for the petitioner has relied on the decision of A. N. Sehgal v. Raja Ram Sheoram, AIR 1991 SC 1406 , wherein it was found that the scope of proviso is to carve out an exception to the main enactment. ( 37 ) THE decision of P. Lackshmipathi v. Co-ordinator, Common Admissions Committee, College of Engineering, Osmania University, Hyderabad, AIR 1982 Andh Pra 424, is also based on the interpretation of the Government order dated 23-9-1970 as reproduced in para 4 wherein it was mentioned that in the first instance, candidates should be selected for the general seats (unreserved seats) only, strictly in the order of merit. After this is done, selections should be made for each reserved group separately in the order of merit. Note (a) to Rule 19 also provides that in the first instance, candidates will be selected for the general seats (un-reserved seats) only strictly in the order of merit. After this is done, selection shall be made for such reserved groups, separately in the order of merit. Note (a) to Rule 19 also provides that in the first instance, candidates will be selected for the general seats (un-reserved seats) only strictly in the order of merit. After this is done, selection shall be made for such reserved groups, separately in the order of merit. ( 38 ) FROM the various decisions which have been cited, it is evident that if the merit list is to be prepared of the general candidates first then the right of the candidates belonging to any reserved category cannot be deprived and all the persons from the merit list have to be admitted. But if the admission is to be given to the reserved category first then the position changes. I feel that Ordinance 272 and the guidelines have clearly contemplated that firstly separate merit lists have to be prepared for each of the category and those candidates have to be given admissions in accordance with their merit in the said reserved category. If all the candidates belonging to a particular reserved category are meritorious and still the number of the candidates is more than the reserved quota, such meritorious candidates cannot be denied the admission as it will be against the provisions of Constitution. If the number of candidates is less in merit then there is no provision in the guidelines or the Ordinance which permits the inclusion of such number from the reserved category list which is prepared and on the basis of which the admission is given. On the contrary it is contemplated that if the candidates of reserved category are not sufficient, then those seats can be transferred to general category. This contemplated that the guidelines of the State Government and the Ordinance in Rajasthan are in different language than the other States where firstly the admission was to be given on the basis of general merit list. ( 39 ) A very curious situation has arisen on account of seats reserved for girl candidates who are meritorious and the interpretation which is given by the learned counsel for the petitioner is accepted the result would be that 25% more seats will have to be created. Though I have not agreed with this proposition. ( 39 ) A very curious situation has arisen on account of seats reserved for girl candidates who are meritorious and the interpretation which is given by the learned counsel for the petitioner is accepted the result would be that 25% more seats will have to be created. Though I have not agreed with this proposition. Similar is the position with regard to other reservations where the number of candidates being meritorious is more than the reserved quota in such a case the petitioner should have made those candidates as party which according to them can be affected by their argument, but they have not been made as party. The Apex Court in the case of Dr. Sida Nitinkumar Laxmankumar Laxmanbhai v. Gujarat University, AIR 1991 Guj 43 , the controversy was on a different point and the Court observed that if there be any such provision in the form, which casts obligation on the candidate to express his choice in alternative, i. e. either for reserved category or for unreserved category seats, to that extent the requirement of that form would be contrary to the rules. The Court found that the preparation of the separate lists is without any requirement. The said decision was with regard to admission in Post-Graduate Medical Course and asking of option of candidate to reserved seat or un-reserved seat on initial stage of admission was held unreasonable. The validity of the Ordinance has not been challenged in the present case and, therefore, no assistance can be taken from this case. ( 40 ) THE various decisions which have been relied and referred to above are based on the Government orders in which it was specifically mentioned that the candidates belonging to the reserved category if get the admission because of his own merit then the seats of reserved category would not be reduced. Such a Government order is not in existence in Rajasthan nor it has been brought to my notice. In the case of Anil Kumar, referred to above, in para 5 of the Government order dated 17-12-1994, it is provided that if a candidate of reserved category is selected then the general candidate on the basis of merit shall not be adjusted against the reserved seat. In the case of Anil Kumar, referred to above, in para 5 of the Government order dated 17-12-1994, it is provided that if a candidate of reserved category is selected then the general candidate on the basis of merit shall not be adjusted against the reserved seat. If this is the Government order then those candidates of reserved category who have been selected on their merit along with the candidates of general category cannot be excluded from the reserved category , but no Government order as stated above, has been pointed out. The Gazette Notification dated 28-9-1993 issued by the State Government is having a reference of reservation under Art. 16 and not under article 15. The State Government may if so chooses issue the necessary guidelines but unless that is being done, a right cannot be claimed that in every case the candidate of reserved category has to be excluded in computing the reservation of such category if he has been selected on the basis of merit. The decisions of Gujarat High Court, Andhra Pradesh High Court and Orissa High Court have visualized the position whereafter the admission in a particular course in respect of the selection of college is not given to the candidate belonging to reserved category who had not been selected on the basis of the quota of reserved category. The same is not the situation over here. The decision of the Apex Court in the case of Asif Hameed, referred to above, is based on the Government Order 272 on the basis of which it was made clear that 50 % of the general category seats have to be filled up in the first instance and the remaining seats have to be offered to the reserved category, which is not the position over here. The law from the various decisions is well settled that if any order of the Government, rules, regulations or ordinance provides that firstly the admission has to be given to the candidate belonging to the general category or a candidate belonging to the reserved category is selected on the basis of merit will not be adjusted then the contention of the petitioner stands correct. But in the absence of such order any regulation or bye-laws, can it be inferred that the constitution has contemplated the admission in such a manner. But in the absence of such order any regulation or bye-laws, can it be inferred that the constitution has contemplated the admission in such a manner. The provisions of Art. 15 of the Constitution of India prohibits discrimination on the basis of religion, race, caste, sex or place of birth or any of them. In respect of various matters and clause (4) of Art. 15 provides that nothing in this article or in clause (2) of Art. 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes or citizens or for the Scheduled Castes and the Scheduled Tribes. The reservation, therefore, can be made and the State is competent to make a provision for the advancement of any socially and educationally backward class of citizen including the Scheduled Castes and Scheduled Tribes. Article 29 (2) provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. The question is not of denial of admission, but conferring a right of admission, even if a candidate is not in merit. "article 41 has also in the directive principle of said policy have conferred a right on the State to make effective provisions for public assistance with regard to education for the undeserved want and other category of persons. This provision is in addition to power which has been conferred under Art. 15 (4) of the Constitution of India and thus, the Constitution has provided enabling provisions under which the right of reservation is given for different classes of persons. A person belonging to unreserved class cannot claim, the action of the State Government is violative of the principles of Art. 14 on the ground that in spite of having secured more marks he has not been given admission and thus, the provisions of Constitution could only be considered as enabling provisions authorising the State Government to make the provision for reservation. The reservation which has been made and for which the Ordinance which has been made makes it clear that a particular procedure has to be followed for admission and reservation. Clause (h) of Ordinance contemplates that unreserved seats if are not fulfilled in a particular reserved category then it will be transferred to general category. The reservation which has been made and for which the Ordinance which has been made makes it clear that a particular procedure has to be followed for admission and reservation. Clause (h) of Ordinance contemplates that unreserved seats if are not fulfilled in a particular reserved category then it will be transferred to general category. This implies that firstly the list of reserved category has to be prepared separately and then a percentage which is ear-marked for that category has to be filled up. Note (ii) in the guidelines provides that if the merit list of any reserve category remains unexhausted after completing the reserve quota of that category, then the candidates from that remaining list shall be eligible for consideration on merit against the general merit. As observed above, this note also makes two positions clear though it is not happily worded : (i) that the person belonging to the reserved category shall not be excluded because the candidates having higher merit have already been selected to the extent of quota fixed for the reserved category, and (ii) that the candidate belonging to the reserved category have to be selected on the basis of merit alone and there is no exlusion from the quota reserved for them. After the quota of reserved categories is exhausted may be out of meritorious candidates and still there remains any candidate belonging to that particular reserved category having more marks than the last candidate of general category then he would be given admission. ( 41 ) TO illustrate the cases of girls for which 25% seats are reserved, it is pointed out that the last candidate belonging to this reserved category obtained 924 marks i. e. more than the candidates belonging to the general category which was only 915 marks. It is submitted by Mr. Goyal that it was for the State Government to issue the guidelines prospectively for future but even if the girl candidates have already been given admission on account of the merit they have obtained, along with the general category candidate then those candidates cannot be considered in the reserved category and further reservation has to be given to the extent of 25%. This argument would have force if it would have been provided that firstly the candidate of general category will be filled-up but this is not the position. This argument would have force if it would have been provided that firstly the candidate of general category will be filled-up but this is not the position. The position is just reverse and admission is to be given to the candidates belonging to the reserved categories on the basis of merit list prepared for such of the categories separately and what is left thereafter is general in that all persons including SC/ ST categories, girls, defence personnel, physically handicapped and belonging to other categories are included and they have to be selected on the basis of general merit. ( 42 ) THE view which I have taken is contrary to the observations of the Division Bench in the case of Ajay Kumar, referred to above, and I would have requested the Honble Chief Justice to constitute a larger Bench but I feel that the provisions of the Ordinance were not considered in any of the decisions given by this Court where the procedure for admission has been given in Ordinance 272. The decisions, therefore, are per incuriam. The proper interpretation of the provisions of the Ordinance 272 has been considered above leads only to the following conclusion. (I) That at the time of admission the candidate has to give option as to whether he wants to prefere any reserved category; (II) the separate list of different reserved categories have to be prepared; (III) the seats reserved for reserved categories have to be filled up on the basis of merit; (IV) if the candidate of reserved categories are more than the seats reserved, in that case after filling up the seats from reserved category on the basis of merit, the remaining candidates have to be considered in the general category; (V) if the seats of the reserved category candidate is lesser then in such a situation the seat can be transferred to general category; and (VI) After the candidates belonging to the reserved category have been selected, the remaining candidates are to be considered of general category whether they belong to SC, ST, Girls, defence personnel, service/retired staff, sons and daughters of disabled persons. (VII) the candidate belonging to SC/st categories should have been admitted on merit against general seats will also be included in the reserved category of SC / ST. (VII) the candidate belonging to SC/st categories should have been admitted on merit against general seats will also be included in the reserved category of SC / ST. ( 43 ) IN view of the above interpretation of the Ordinance, I am of the view that unless there is specific order or guideline of the State Government excluding those candidates who are meritorious than the last candidate of general category, there could be no reduction in the reservation made. The object of reservation is to encourage the socially and educationally backward or underwant (sic) persons. At the time of admission, the option is given to the candidates as to whether he wants to categorise himself in any of the reserved category and the reserved list is prepared on that basis. If any candidate out of that particular reserved category is more meritorious then he cannot be excluded from the computation of the number of candidates reserved for that category in the absence of any specific order. The decisions which have been cited above are where there were government order for exclusion. ( 44 ) THE petitioners are not entitled for any relief also on the ground that they have not arrayed the candidates who have already been given admission and at least 130 persons are effected by the submission and the petitioners-2 belong to SC, 2 to ST, 3 to defence personnel and 111 to girls category etc. and their admission could not have been disturbed without hearing them. Even the directions for creating extra seats could not have been given. ( 45 ) ALL the writ petitions are accordingly dismissed. The State Government may fill up the remaining 5 seats on the basis of above interpretation strictly on the basis of merit. Petitions dismissed.