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Madhya Pradesh High Court · body

2006 DIGILAW 883 (MP)

Ram Ashish Shukla v. State of M. P.

2006-07-19

DIPAK MISRA, R.S.JHA

body2006
ORDER Misra, J. -- 1. In invocation of the extraordinary and inherent jurisdiction of this Court under Article 226 of the Constitution of India the petitioners, three in number, who belong to General Category have called in question the constitutional validity of the Rules 20 (10) and 20 (11) of Pre-P.G. Rules, 2006 (for brevity 'the Rules') as contained in Annexure P-l. 2. The facts which have been pleaded in the writ petition need not be stated in detail since Mr. Shashank Verma, learned counsel appearing for the petitioners has founded the assail on a singular substratum that the sequence that has been provided in Rule 20 (10) is violative of concept of reservation and further runs counter to Article 14 of the Constitution of India being arbitrary and irrational. It is contended by him that by arrangement of such sequence the General Category is kept out of, competition though they are entitled to compete as per law. The learned counsel for the petitioners further submitted that Rule 20 (11) is also untenable on the selfsame ground. 3. Mr. P.N. Dubey, learned Deputy Advocate Government for the State, per contra, submitted that the sequence has been fixed as per the decision of this Court rendered in the cases of Dr. Mayank Jain v. State of M.P. and others [ 2003 (4) MPHT 275 ] and A.K. Aritwal v. State of M.P. [ 2004 (3) MPHT 382 ]. It is also urged by him that reservation does not exceed 50% inasmuch as Rule 8 that deals with reservation stipulates that it cannot exceed more than 50%. The learned counsel for the State further submitted that fall out of Rule 11 does not exceed reservation and in the absence of any pleading or any fact that there has been excess reservation by virtue of introduction of suchrule, the same is valid. 4. To appreciate the aforesaid submissions it is thought condign to refer to Rule 8 which deals with reservation. It reads as under: "8. Reservation -- 20% Seats are reserved for candidates belonging to Scheduled Tribe, 16% seats are reserved for candidates belonging to Scheduled caste and 14% seats are reserved for candidates belonging to other backward classes other than creamy layer of Madhya Pradesh or as amended from time to time. (1) Reservation for woman candidates shall be 30% according to merit cum option in each category. (1) Reservation for woman candidates shall be 30% according to merit cum option in each category. (2) The minimum percentage of marks in Pre P.G. entrance examination for eligibility for admission to Post Graduate Medical and Dental Courses shall be 40% for SC/ST/OBC candidates and 50% for unreserved category candidates. (3) The candidate claiming to be a candidate belonging to SC/ST/OBC category of Madhya Pradesh shall have to attach a certified copy of certificate issued by the competent authority with the application form and the original certificate has to be produced at the time of counselling. (4) For physically Handicapped who are bona fide residents of Madhya Pradesh belonging to ST, SC, OBC and Unreserved category three percent (3%) seats are reserved for admission to P.G. courses. Reservation will be horizontal and compartmentalized. According to the above reservation of the candidates are not available above seats should be filled by the related category only. The candidate claiming admission against these seats will have to produce a certificate in the prescribed form District Medical Board and eligibility certificate from superintendent vocational Rehabilitation Centre for Physically Handicapped, Government of India, Ministry of Labour, Napier Town, Jabalpur. (Seats shown on table-5 ). (5) In PG Degree and Diploma Courses 20% of seats are reserved for In-service Medical Officers of Public Health and Family Welfare Department, demonstrators, Government Autonomous Medical Colleges of MP and Assistant Professor working in the Govt. Autonomous College who are not on contractual appointment (Inservice candidate - Table 2 and 4) For these In-service candidates selection process and conditions for degree and diploma courses will be as under . Selection Criteria -- (a) Only those candidates, who have completed 5 years service on 1st January of year of examination as Medical Officer, in the Public Health and Family Welfare Department/demonstrator, working in Government Autonomous Colleges/Assistant Professor in Autonomous Dental College under the Government of Madhya Pradesh and who are not serving on contractual basis will be eligible for selection as in-service candidates. If a candidate was working on contractual basis in Public Health and Family Welfare Department of the State Government and has come in regular services while working on contractual basis, then experience of contract service will also be considered. If a candidate was working on contractual basis in Public Health and Family Welfare Department of the State Government and has come in regular services while working on contractual basis, then experience of contract service will also be considered. (b) Women candidate, who have served for three consecutive year in rural areas and who are not serving on contractual basis will also be eligible, even if they have not completed a total of five years of service. Relaxation for such woman candidate with less than 5 years of service will, however be subject to condition that they will be entitled for selection to post graduate courses in Obstetrics and Gynecology and Anesthesia only. If a woman candidate was working on contractual basis in Public Health and Family Welfare Department of the State Government and has come in regular services while working on contractual basis, then experience of contract service will also be considered. (c) The maximum age limit for the selection of In-service candidates will be 45 years on 1st January of the year of examination. (d) The In-service candidates, who have done Post Graduation in one subject will not be eligible for admission in another subject." 5. On a perusal of the aforesaid rule it is clear that reservation does not exceed 50%. Be it placed on record that reservation up to 50% is permissible as per the decision rendered in the case of Indira Sawhney v. Union of India [ AIR 1993 SC 477 ]. 6. Presently we would like to refer to Rules 20 (10) and 20 (11) which read as under : "20 (10) Counselling will be done according to the category in the following sequence. I IN SERVICE II NON SERVICE (OPEN) -------------------------------------------------------------------------------------------------- A. ST Category A. ST Category B. SC Category B. SC Category C. OBC Category C. OBC Category D. Unreserved Category D. Unreserved Category (11) In case the eligible candidates to the extent of reservations in any category i.e. In service, non-service (Open) and physically handicapped are not available, the vacant seats of that category will be filled up by making available to other categories as given below :-- (a) The vacant seats of ST category shall be filled up by the eligible SC category candidates. (b) The vacant seats of ST category shall be filled up by eligible ST categroy candidates. (b) The vacant seats of ST category shall be filled up by eligible ST categroy candidates. (c) In case the eligible candidates to the extent of reservation in ST and SC categories are not available, the vacant seats shall be filled up by elgible OBC category candidates. (d) In case the eligible candidates are not available in these three reserved categories in the above manner, the vacant seats shall then be filled up by the eligible unreserved category candidates." 7. This Court in the case of Amit Kumar Aritwal (supra) in paragraph 11 held as under: "11. Presently we shall address with regard to the validity of Rule 15.9. The learned counsel for the petitioners have submtited that the sequence as has been prescribed under the Rule is logically unwaranted inasmuch as it is anomalous to Rule 15.10. To appreciate the aforesaid submission it is necessitous to discern the anatomy of Rule 15.10. In the said Rule it has been provided that vacant seat of ST category shall be filled up by the eligible candidates of SC category and vacant seat of SC category shall be filled up by the eligible candidates of ST category and further if both these categories are not available the vacant seats would be filled up by the eligible candidates of OBC category candidates. In the absence of aforesaid candidates, if this sequence is understood in proper perspective there can be no trace of doubt that selection process must start in the same order or in that sequence. If the person of unreserved category is considered first and he does not get the opportunity to get the subject of his choice he would be compelled to opt for a different subject. That apart by the time the seats fall vacant following the guidance of Rule 15.10 the unreserved category candidates who have not been selected in the first counselling of unreserved category would not get the chance even if the seats fall vacant as by that time he must have taken admission in some other subject and rules prohibit the change of subject and change of institution. Thus, in our considered opinion rule 15.9 of the Rules has to be declared invalid as it does not stand in consonance with other rules. Once we declare Rule 15.11 to be unconstitutional the sequence as provided in Rule 15.9 cannot withstand scrutiny. Thus, in our considered opinion rule 15.9 of the Rules has to be declared invalid as it does not stand in consonance with other rules. Once we declare Rule 15.11 to be unconstitutional the sequence as provided in Rule 15.9 cannot withstand scrutiny. On both the counts Rule becomes susceptible and has to be declared ultra vires." 8. The State Government has amended the Rules in consonance with the said decision. When Rules have been made in consonance with the decision of this Court, the same cannot be held as unconstitutional. Rule 20 (11) is in consonance with the reservation and sequence that finds mention in rule 20 (10). By no stretch of imagination, it can be said that the same invites the frown of Article 14 of the Constitution. We may hasten to clarify, if there would have been reservation exceeding 50%, the same would have been indubitably unconstitutional but nothing has been brought before us to show that it exceeds 50%. Hence, we do not find that the Rules which have been assailed play foul with any of the provisions of the Constitution. 9. In the result, we do not find any merit in the writ petition and the same is dismissed in limine.