1. The petitioner and respondent No. 4 had applied or admission to Post-Graduation Course in Medicine. The choice of the both fell on 'Paediatrics' as their subject, though the petitioner in the alternative had applied for studies in 'General Medicine' and 'Diploma in Child health'. For the year under dispute, only two seats were available for 'Paediatrics: one being earmarked for 'open merit', and the other being reserved for Scheduled Caste student. Respondent No. 4 belonged to 'Other Backward Class', the whom no seat in Paediatrics and reserved. But the relevant rule contemplates allotment unfilled seat of Schedule Caste to a student belonging to any group of Backward Class up to the maximum percentage fixed thereunder for the said group. Such rules for admission to the Post-Graduation courses are framed under the Government Resolution dated 18th June 1971. Only students admitted to M.B.B.S. course though reserved seats could claim admission to Post-Graduation course from the reserved seats under these Rules. Admittedly, respondent No. 4 was not so admitted to the M.B.B.S. course Respondent. No. 4 being a Christian, could not have been admitted to any of the Backward Class reserved seats. he was admitted to Miraj Medical College as a candidate sponsored by Wanless Hospital, Miraj in 1973 in one of the three seats earmarked for the Hospital. However, by a notification of the Government dated 13th February, 1978 Christians covered from Scheduled castes also were recognised as belonging to 'Other Backward Class' for the purpose of such reservation. This is how he claimed admission to M. D. to the seat reserved for Scheduled Caste, allotable to other Backward Class student in case of its being not claimed by any scheduled Caste student.
2. Both were interviewed by the Selection Committee on 30th June 1981 and 25th July 1981, the second interview becoming necessary due to the absence of 'Other Backward Class' University representative on 30th June, 1918. The Committee rejected the claim of respondent No. 4 on both occasions on account of his not being admitted to M. B. B. S course though such reserved quota. On the very first day of the interview viz. 30th June 1981 the petitioner wad informed of his having been selected for the course in Paediatrics, on merits, in addition to one Kulkari who had secured highest makes. In view of this the petitioner endorsed his refusal to accept admission to the other two subject as per the practices in vogue then though he could have been so admitted on his own merits to these subjects also.
3. The claim of respondent No. 4 was, however, accepted by the higher authorities in appeal. By the letter dated 6th November 1981, the petitioner admission was cancelled and respondent No. 4 was notified to have been admitted to the said course. The petitioner challenged this act of the University in this writ petitioner filed on 20th November, 1981.
4. Mr. Pradhan, the learned advocate appearing for the petitioner, raised two points in support of this petitioner. first, that admitted omission of respondent No. 4 to get admitted to M.B.B.S. course as an 'Other Backward Class' students prevents him from seeking admission as such student to Post-Graduation course. Second, that belonging to 'Other Backward Class' already admitted to different subjects including the open merit ones till then, for Post-Graduation students, has already made up the reservation of 10% available to such students, leaving no room for admission of respondent No. 4 of this course as such student.
5. Coming to the first contention of Mr. Pradhan, the relevant part of the Rule reads as follows:
'2. xx xx xx xxxx xx xx xx the candidates belonging to the Backward class communities recognised by Maharashtra Government and who were admitted for M. B. B. S. course against the reserved seats for the respondent groups in the Medical College in the Maharashtra State will only be considered eligible for admission against reserved seats'.
In the earlier part of the above Rule, in all 34% of the seats are shown to have been reserved, 13% being for students belonging to Scheduled Castes. 7% for Scheduled Tribes, 4% for Denotified Tribes and 10% for 'Other Backward Class'. Admittedly, respondent No. 4, was not admitted to the M. B. B. S. course as 'Other Backward Class' student. His forefather were converts from the Schedule Caste. Such converts from Scheduled Caste were later recognised as 'Other Backward Class' under the Government notification dated 13th February, 1978. This will enable him to claim benefit to the avenues opened after the this date. This could have no retrospective effect in any sense. Respondent No. 4 was not only not admitted to the M. B. B. S. course as such 'Other Backward Class' student in 1973, but could not have claimed any such benefit. The Selection Committee appears to us to have been right in not selection respondent No. 4 on the strength of the above said Rule.
6. Mr. Constitution. J. Sawant, the Learned advocate appearing for respondent No. 4 contends that such a Rule is held to be erroneous and legally unsustainable by this court. He drew out attention to a judgment of a Division Bench of this court D/- 30th June, 1981 in writ petn, No. 670 of 1981, in the case of Dr. Sushma Kirtane v. Dri General Jain. The claim therein also centred round the admission to the Post-Graduation course in Medicine. The petitioner Sushma therein belonged to 'Other Backward Class'. She was admitted to the M. B. B. B. course on merit without being required to avail of the reserved seat. She, however, claimed admission to the Post-Graduation course though the reserved seat, presumably because her performance at M. B. B. S. could not warrant her admission to 'open merit' seats. Her claim was rejected relying on the very sub-Rule. relied on by Mr. Pradhan before us. The Division Bench did hold the said Rule to be 'totally erroneous' and capable of being 'sustained'. It was firstly held that the said admission Rule were merely in the nature of the guidelines and had no statutory force. It was secondly held that the reversion being intended or the protection of the Backward Communities, the rule 'should not' be worked out 'to their determent'. The refusal to admitted the petitioner to the Post-Graduation course was held thus to be illegal and liable to be quashed.
7. The Division Bench before whom this case was argued referred it to the Full Bench as the views of the earlier Division Bench appeared to it to be open to serious doubts. After giving out anxious consideration to the observation in the judgment of Sushma's case and to the points urged before us by the learned advocates, we find it difficult to agree with either of their views. These admission Rule are admittedly framed under the Government Resolution. They are published for the benefit of students seeking admission to Medical Colleges. These Rules documents govern the admissions all the Government Medical Colleges run at public expense. Admissions to the students can be granted or denied by reference to whether the Rules are complied with or not. The next of the Rules and publication there of documents hold out assurance to that effect. The Selection Committee. is bound by the same as are the student seeking admission. the bench thereof cannot but involve informing of the rights created thereunder. Such rights appear to us to as enforceable as any other statutory rights of the citizens.
8. Such Resolution are invariably passed in exercise of the executive powers vested in the Government under Article 166 of the Constitution of India. It is well settled that the Rules to framed in exercised of its executive powers by Resolution are as effective as the laws of the land so long as the same documents not conflict with any existing statutory provisions and are within the legislative competence of the State. This is what is laid down by the Supreme Court in State of M. P. v. Nivedia Jain : 1SCR759 , and in its earlier two other judgment in State of A. P. v. L. Narendra Nath : 3SCR699 and M. R. Balaji v. State of Mysore : AIR1963SC649 in this behalf.
9. It is true that mere guidelines or executive instruction cannot be create any justifiable or enforceable rights. Instances are not rare when the Government has to issue guidelines and executive instructions for the benefit of its employees for effective implementation of its policies. This is done as much by Government resolution as by the circumstance of the officers at different leaves. Sometimes Government is driven to make up for the absence of legislation on a given topic by passing a Resolution to meet the exigencies or the situations. Whether any Resolution constitutes mere guidelines or executive instructions or amount to laws, depends on the context object, occasion and on variety of other circumstance. Suffice it to note that the Rules governing Admission to the Government Medical Colleges run at the public expense can by no stretch of imagination be held to be mere guidelines or executive instructions. As observed earlier, the same are intended to regulate admission of the students to all Government Medical Colleges and students are entitled to get them enforced if the authorities fail to implement the same for any erroneous or irrelevant reasons. The ratio of the above and several other cases and above aspect documents not seem to have been brought to the notice of the learned Judges. With respect, these Rule cannot be held to be mere guidelines or having to statutory force.
10. We also find it difficult to trace any defect in the rule. We say so with respect. It is true that in Sushma's case, (W. Post-Graduation course. No. 670 of 1981, D/- 30-601981 (Bom)) her brilliant performance enabled her to get admission in the 'open merit' seats for M. B. B. S. course and her such merit, was being relied on to disable her from claiming admission to any reserved seat for post graduation course to which she could claim title otherwise as being the student belonging to 'Other Backward Class' under the Rules. This is, however, only one aspect of the Rule. This is, however, only one aspect of the Rule. This could have been a ground of attack only if the relevant sub rule could be found to have no merit or purpose to subserve. The sub-rule, however, seems, to have been designed, on the face of it. to ensure continuity of protection to the students of the Backward Class at both graduation and Post-Graduation courses in Medicine. This object could not have been achieved without disregarding the claim of students like. Dr. Sushma who could secure admission to M. B. B. S. course on merit and they demonstrate the futility of protection for them. There is danger of students admitted though reserved seats being displaced by students like Dr. Sushma in the competition for admission to Post-Graduation course. Meritorious students like Dr. Sushma alone cannot be said to be the victims of this Rule. Other Backward Class students getting admission though other sources unconnected with such reservation also are as much victims of this Rule and liable to be excluded under this scheme.
11. It shall have to be borne in mind in this context that seats in all such technical educational College are bound to be few and the number of reserved seats fewer still. Any scheme of reservation cannot but involve balancing of several competing relevant considerations and ignoring some of them inevitably in this process. The Rule-makers ahd to choose between the relative importance of the 'merit' and 'such continuity'. It is difficult to hold that ensuring continuity for the student selected at the start of the medical course is not relevant to the object of the reservations. The Rule cannot be held to be bad in law without overemphasizing only one aspect of the matter. Performance of students like Dr. Sushma at qualifying examination to M. B. B. S. could not relied on to assume that such students did not the same should be made available to other deserving students of the same class. At any rate, this can be one relevant view. So rejecting the claim of the students of the Backward Class, not admitted to M. B. B. S. course either because of their merit or inability to compete but getting admission though some other source, cannot be said to be irrational, if these other factors are taken into account. Dr. Syushma's failure to get admission to the Post-Graduation course can be attributed also to the deterioration in her performance which drove her to look to the reserved seats. This also is other side of the same coin. All these aspects documents not seem to have been brought to the notice of the Division Bench.
12. Dr. Sushma's learned advocate seems to have relied on yet another Rule of the Rules of Admission to M. B. B. S. course. The said Rule contemplated 'inclusion' of even such 'open merit' student of 'Other Backward Class' to M. B. B. S., in the total of admitted such 'Other Backward Class' students for ensuring that strength of such students does not exceed 10% reserved for them. This rule had the effect of treating 'open merit' 'Other Backward Class' student as if admitted though reserved quota. Arguably enough, Dr. Sushma could claim to be deemed to have been admitted to M. B. B. S. course though reserved quota under this Rule and as such, claim admission to Post-Graduation course for the seats reserved or otherwise available to 'Other Backward Class' students. The contention, however, did not find favour for reason not clear from the judgment. The purport and the thrust of this point seems to have been missed by the court. The next of the judgment in paragraph 5 suggests as if the Rule relied on contemplated 'exclusion' of open merit admissions of 'Other Backward Class' from the percentage reserved and not 'inclusion'. Such exclusion was indeed in keeping with the view of the Division Bench expressed in earlier and latter part of the judgment and could not have been condemned. Actual condemnation shows that the words 'execution' in the judgment word 'inclusion'. Mr. Sawant. who has appeared in that case for the Governed out the petitioner of Dr Sushma to show how her argument was based on 'inclusion' and not on 'exclusion'. The observations appear to us to have been based on some misconception.
13. Mr. Swat then contends that the said Rule is violative of Article 14 of the Constitution. The object of the reservation, so contends Mr. Sawant, is to protect the interests of the socially and economically backward classes and ensure admissions for them to a certain percentage in spite of their lower marks in the qualifying examination and their inability to compete with the students from the advanced classes in achieving higher standards, because of the known hurdles and handicaps. According to Mr. Swant, restricting reserved seats for Post-Graduation course only to such students, who has secured admission to the M. B. B. S course though such reserved quota, can have no nexus with the above object of reservations. The basis of such classification of backward class students between those admitted to M. B. B. S. course though reserved seats and those not so admitted, is , according to Mr. Sawant, irrelevant and unreasonable. The contention is no doubt attractively plausible. We have seen how the sub-rule is aimed at ensuring continuity of protection during the entire period of graduation and Post-Graduation course in medicine. The Rule-makes appear to have considered this to be better method of (1) working out the objective of reservations and (2) making the scheme more fruitful and meaningful. Every words said early in dealing with the Division Bench judgment is equally relevant in this content of challenge to it validity under article 14 or the Constitution. It is difficult to hold such a scheme to have no nexus with the object of reservation. Exclusion of other Backward Class students getting admission on merits for M. B. B. S course is incidental and in fact inevitable in a scheme where continuity of protection happens to be the objective. Failure of such students to get admission to Post-Graduation course can be equally attributed to the deterioration in their performance at M. B. B. S. leave. 'Other Backward Class' students admitted to M. B. B. S. otherwise than though the reserved quota and with any merit basis also stand excluded under this scheme. Thus 'merit' alone is not being 'penalised' as was urged before us. The sub-rule is an integral part of the overall scheme. Such further classification of 'Other Backward Class' student appears to us to have been based on relation and relevant basis and cannot be said to be violative of Article 14 of the Constitution. The same also cannot be held to be arbitrary irrelevant or
1983 Bom./6 III G -12
14. Mr. Swant drew out attention to the earlier part of the Rule. The said part seeks to fix the percentage for different groups of Backward Classes. It also further permits unfilled seats of one group to be filled in by students belonging to the other group provided such filling up does not result in exceeding the maximum percentage prescribed for the said group. The University accepted the claim of respondent No. 4 in appeal in the belief that the seat reserved for Scheduled Caste student could e assigned to Other Backward Class student which respondent No. 4 belongs. In paragraph 6 of the affidavit in reply of the Dean, however earlier rejection of respondent No. 4's claim was sought to be explained by reference to the admission of three other students belonging to Other Backward Class viz., Swami, Pawaskar and Bandiwadekar, who, according to the Selection Committee, were liable to be counted in the reserved quota of Other Backward Class though they were admitted to the seat earmarked for open merit students. Mr. Swant is right in contending that the earlier part of the Rule does not permit such inclusion of the students in the reserved seats who could get admission thought open merit quota. None could draw our attention to any existing Rule supporting the explanation of the Dean. The explanation appears of us to be untenable. It is unnecessary to pursue this point further. As we have held respondent No.4 to be disentitled to claim any reservation because of his not having secured admission to M. B. B. S. course though any such reserved quota, the question of his claiming benefit under the earlier part of Rule also does not arise.
15. The petitioner thus succeed on the first point. This makes it unnecessary to go into the second point of Mr. Pradhan. He could not have perhaps succeeded on this point. The necessary facts are averred in paragraph 12 of the petitioner. Reliance is placed on an extract from a Government circular which seeks to restrict the admission of Backward Class students to 10% without regard to whether the student is admitted in the 'open merit' or reserved seat. The circular is proved, to our satisfaction to have been intended for the engineering students and not for the medical students. Mr. Pradhan drew our attention to an identical passage from the Rule intended for admission to M. B. B. S. course for a certain year. The second sub-paragraph on which Mr. Pradhan relies does not find a place even therein. No such Rule is produced to justify and inference of the existence of any such clauses in the Rule notified in this behalf. Paragraph 6 of the Dean's affidavit does create some suspicion about its existence. Mr. Mehere, the learned Assistant Government Pleader, however, made a statement at the bar that M. D. admission Rule documents not contain any such clause not the Government has passed any Resolution at any time to the said effect. The contention of Mr. Pradhan based on such non-existing rule in liable to be rejected. The petitioner, however, succeeds on the first point.
16. In the result, we allow the petitioner, set aside the admission granted to the respondent No. 4 and direct respondent Nos. 1 to 3 to admit the petitioner to the Post-Graduation course in Paediatrics. Rule is made absolute. In the circumstance, of the case, there will be no order as to costs.
17. Petition allowed.