R.S. Narula, J.
1. The relevant facts of this case are given in substantial detail in my order of reference, dated August 13, 1965 which may be read as a part of this judgment.
2. At the hearing of the case before us in Division Bench today Mr. G. C. Mittal informed us that he has not impleaded any of the candidates who are stated to have been illegally admitted to the Medical Colleges in question as he would be content with being allowed to join the next M.B. B.S. 1st Year Class to avoid disturbing even a single other student who would not have been admitted during the last selection in case the petitioner's application for admission had been granted. In this view of the matter, it is argued by Mr. Mittal, no other known person would be affected by the order granting this writ petition and it is open to this Court to mould the relief to which the petitioner may otherwise be entitled in such manner as may be consistent with the changed circumstances brought about by lapse of time for no fault of the petitioner. The learned counsel for the petitioner has also stated categorically that he has not joined any other institution or course in the hope that he would be able to join the M.B.B.S. Class for which he has been striving all this time.
3. At the hearing before us in Division Bench Mr. Mittal has expressly stated that he does not want to press any of the questions on which I have made observations against the petitioner in my order of reference and that the solitary question which he is now pressing is about the impugned directions contained in Para. 1 (i) of Punjab Government's letter, dated 6/8th October 1964 (copy Annextre R 2) and the resultant adoption of the 'carry-over formula' followed by the respondents.
4. The application of the petitioner for admission to the M. B. B. S. Course of the Punjab State Medical Colleges (annexure Rule 1) is dated June 6, 1965, and was expressly stated to be for an 'open merit seat'. It is not disputed that the petitioner had obtained 350 marks in the qualifying examination and that out of the persons admitted to the M. B. B. S. Course in the State Medical Colleges in Punjab the last candidate admitted secured only 303 marks. It appears that orders of the State Government are being issued from year to year providing for certain reservations being made for admission to the State Medical Colleges. The reservations which are relevant for deciding this case are contained in para 5 of the brochure for admission to the 1st year M. B. B. S. Class of 1965 of which a copy is annexure Rule 8 to the written statement. The relevant extracts from para 5 would read as follows:--
5 The number of seats at the Medical College, Amritsar would be 150, Medical College, Patiala 150 and Medical College, Rohtalc 100. These seats are to be filled up as under:--
(i) Seats reserved for Govern- Reservation ment of India nominees under for both these various programmes. categories (ii) Seats reserved for nomi- taken together nees of Jammu and Kashmir is stated by Government. admitted basisto be--6 p.c. (iii) Seats reserved for members of scheduled castes and scheduled tribes belonging to the State of Punjab 20 per cent. (iv) Seats reserved for members of backward classes, i.e., those who are economically backward (candidates belonging to notified backward classes whose family income does not exceed Rs. 1800/- per annum and candidates not belonging to notified backward classes whose family income does not exceed Rs. 1000/- per annum) 2 per cent. (v) Seats reserved for sports men 2 per cent. (vi) Seats reserved for candidates hailing from recognised backward areas of the Punjab who cannot get admission on the basis of their merit by open com petition 10 per cent. (vii) Minimum seats reserved for women candidates 20 per cent. Total reserved seats 60 per cent.
5. Two things are significant in the contents of para 5 or annexure Rule 8. Firstly, in this official brochure issued on 19-6-1965 it is nowhere stated that if 20 per cent candidates are not forthcoming in category (iii) i.e., out of members of scheduled castes or tribes the remaining seats would be filled up by category No. (iv) i.e., by members or backward classes beyond the 2 per cent reservation made for them. Secondly, the special provision made in annexure Rule 8 leaves only 40 per cent of the seats in the State Medical Colleges in Punjab to be filled on the basis of merit alone.
6. Justification for the carry-over formula has been sought by Mr. L. D. Kaushal, the learned Deputy Advocate General from a circular letter dated 6/8th October, 1964 (copy annexure Rule 2) the relevant part of which reads as follows:--
'I am directed to refer to Punjab Government letter No. 1637-WGI-ASO-2-64/4289, dated the 6th/13th March, 1964, on the subject cited above and to convey the following clarifications and decisions of the State Government for necessary implementation:--
(i) 20 per cent reservation of seats for Scheduled Castes and Scheduled Tribes shall be collective for them without any distinct percentage inter se between them. There is 2 per cent separate reservation for the other Backward Classes. Before the quota for Scheduled Castes and Scheduled Tribes is thrown open to others for want of adequate number of candidates from these castes and tribes, it shall be in the first instance, offered to students belonging to other Backward Classes and vice-versa. It will be only if the requisite number of students is not available for filling the quota of reserved vacancies from Scheduled Castes and Scheduled Tribes and other Backward Classes, that the unutilised seats will be added to the general pool of vacancies to be filled exclusively on merit.'
7. The letter Rule 2 is a clarification of some communication dated 6th/13th March 1964 relating to 'reservation of seats for scheduled castes/tribes in technical, education and professional institutes' and does not appear to relate specifically to admission to medical colleges only. The circular letter is addressed to (i) the Director of Public Instruction, Punjab. (ii) the Chief Engineer, Punjab P. W. D. B. and Rule Branch, Patiala (iii) the Director of Industries, Punjab (iv) the Director of Research and Medical Education, Punjab, (v) the Director of Industrial Training, Punjab and (vi) the Director of Agriculture, Punjab. Copies of the communication have also been endorsed to Heads of Departments, Commissioners of Divisions and to Financial Commissioners, etc., The brochure Rule 8 contains rules for admission to the 1st year M. B. B. S. Class of 1965 only and is specifically meant to govern admissions to that class. Though the clarification of the letter of March 1984 was available after 8th October 1964, the same was not incorporated in annexure Rule 8. I think, it can, therefore, be safely presumed that the State authorities did not intend to enforce the formula contained in para (i) of letter Rule 2 in the matter of admission to the 1st year M. B. B. S. Class of 1965 for which all the relevant rules are contained in annexure Rule 8. I am further reinforced in this assumption by the fact that a similar carryover formula by intermingling scheduled castes/tribes and the backward classes appears to have been adopted by the State Government even
in the matter of State Services during 1964. The said formula was, however, abrogated somewhere during early 1965. This fact is apparent from question No. 10.2 in Chapter II relating to 'Services' at page 12 of the Questionnaire issued by the Punjab Evaluation Committee on Welfare on January 26 1966, which is quoted below:--
'10.2. Formerly, the candidates belonging to the Backward Classes used to benefit out or reservations laid down for Scheduled Castes/Tribes in case the latter were not forthcoming in adequate number. This has since been abrogated. The result has been that Backward Classes candidates have been put at disadvantage. Do you advocate any change in this policy If so. the reasons therefor ?'
8. Question No. 10.3 in the same Questionnaire also throws some light on the categorical difference between the privileged class known as scheduled castes/tribes on the one hand and the so-called backward classes on the other. This question is in the following terms:--
'10.3. One school of thought is that while we have special responsibility for Scheduled Castes/Tribes according to the Constitution the Backward Classes need not be treated at par and, therefore, there should be no reservation for Backward Classes either at the time of recruitment or promotion in services. Do you agree If not, your reasons for the same ?'
9. The first attack levelled against the impugned orders by Mr. Mittal is that special provision is made in annexure Rule 8 for 60 per cent of candidates being admitted otherwise than on the basis of open merit. It is argued that according to the test laid down by their Lordships of the Supreme Court in M. R. Balaji v. State of Mysore, AIR 1963 SC 649, a special provision for reservation of posts and appointments, though constitutionally justified must be contained within reasonable limits and that though it may be difficult to say definitely what would be a proper provision to make, speaking generally in a Broad way, a special provision should be for reserving less than 50 per cent seats though it must be left to the appropriate authorities to decide how much less than 50 per cent should be reserved depending upon the relevant prevailing circumstances in each case. In so far as the special provisions made in annexure Rule 8 provide for reservation of 60 per cent seats, the reservation is clearly hit by the test laid down by the Supreme Court. Even otherwise it appears to us that special provision is allowed to be made for some kinds of minorities and this permission should not be used by State authorities to make a majority by piling up different minorities so as to reduce the seats available to candidates competing on open merit basis to less than even 50 per cent.
As observed by their Lordships of the Supreme Court in M. R Balaji's case. AIR 1963 SC 649, the necessity of avoiding overlooking the possibility of lowering standards of higher education must never be forgotten. If the State Government rightly wants to provide for greater facilities to the backward classes for higher education it may start a larger number of educational and vocational institutions and medical colleges, but it would be to the serious detriment of the national interest to exclude capable candidates who are entitled to join these institutions on merits by merely providing for admission of much poorer stuff by such reservations. Though reservation by special provision for weaker sections of the society has to be made for some time and to a certain extent, the State Government is not justified in its zeal to help the weaker sections to completely throw over board the interests of really capable candidates for whom higher technical education is really meant. We would, therefore, hold that making reservations for the weaker sections of the society under any label whatsoever should not in the aggregate exceed 50 per cent of the total available seats and in so far as the rules contained in annexure Rule 8 provide for 60 per cent reservation the same are invalid and violative of the rule of equal protection of laws ant amount to a fraud on Article 15(4) of the Constitution. It is rightly pointed out by Mr. Kaushal that in actual practice more than 80 (20 per cent of 400) women candidates having been admitted on merits the reservation made for them has not been utilised and this has resulted in 250 candidates out of 400 having in fact been admitted to the 1st year M. B. B. S. Class of 1965 on merit alone. This factual position is not disputed by the petitioner. Our finding on the first point will, therefore, have to be borne in mind by the State authorities for making rules and regulations for admission to Government institutions in future, but has no practical effect on the impugned selection made during the last year.
10. The second and the real ground of attack against the exclusion of the petitioner from the selected list of candidates is the selection of more than 8 persons under category (iv) (economically backward classes) for whom only 2 per cent seats i.e., 8 seats out of 400 had been reserved under para 5 of Rule 8. It 1s not disputed that instead of 8 persons 78 candidates have been admitted otherwise than on the basis of open merit on the pretext that either they were members of notified backward classes and their family income from all sources did not exceed Rs. 1800/- or even though they were not members of any notified backward classes the income of their families from all sources did not exceed Rs. 1000/- per annum. The State justifies this action by the carry-over formula recognised in para (i) of the clarification letter dated 6/8th October, 1964 (Rule 2). Besides the question of inapplicability of the provisions of Rule 2 to the rule of admission contained in Rule 8 it appears to us to be manifestly unjust and opposed to the rule of law that when on the basis of actual necessity and census figures, etc., the State Government has thought it fit to say that only 8 persons out of 400 would be admitted otherwise than on merit merely because of their belonging to an economically backward class the Government should in fact admit almost 19 per cent candidates i.e., 78 instead of 8 from that privileged category merely because another 70 persons would have been excluded from the open merit Ist if 70 persons of class (iii) i.e., of scheduled castes and scheduled tribes had been available and eligible for admission. This argument can be based on nothing but arbitrariness or whim of the State authorises. The fair thing to do is that after providing for certain separate privileged classes upto the maximum limit indicated in the brochure, the rest of the seats must be allowed to go to candidates competing on open merit basis.
The interpretation placed on the situation by the learned Deputy Advocate General would amount to saying that the State only wants to ensure that no more than 50 per cent or 40 per cent students should be admitted according to the merits of their claims and the rest of the seats must go to people who could not come on the basis of merit alone irrespective of whether sufficient number of eligible candidates are available or not in those categories separately within the maximum extent reserved for each one of them. This is a wholly misconceived approach to the subject. As we read the Supreme Court judgment in M. R. Balaji's case, AIR 1963 SC 649, it appears to us that their Lordships of that Court were laying down a lower limit of at least 50 per cent seats which should be filled up on the basis of merit alone and that the Supreme Court was prepared to leave only less than 50 per cent seats to be reserved for various weaker sections of the society to be filled in otherwise than on the basis of merit alone. If our reading of the Supreme Court judgment in this respect is correct, the carry-over formula adopted by the respondents in this case is contrary to the spirit and ratio of that judgment. It is not as if all the candidates are divided into two categories, namely, those to be admitted on the basis of merit and those to be admitted on other considerations. The real and correct way of dealing with the matter would be that candidates would normally be admitted purely on the basis of merit except to the extent of the maximum limit provided for each of the privileged classes indicated in the relevant order separately subject to a total maximum reservation of less than 50 per cent of the aggregate seats. We have, therefore, no hesitation in striking down, the adoption of the carry-over formula in the case of admission to the 1st Year M. B. B. S. Class, 1965 in the State Medical Colleges of Punjab on this additional ground.
11. The only question that now remains to be decided is of the relief which may be granted to the petitioner after a lapse of so much time, for which the petitioner is not to blame, and in the changed circumstances of the case, specially in the absence of at least that particular candidate of economically backward classes who has been admitted to the course in question to the exclusion of the petitioner in the open merit list. The identity of that student is not known to us.
12. Since the petitioner is willing to avoid disturbing any one of the persons who have been allowed to be admitted to the Medical Colleges in question by an illegal formula and is prepared to sacrifice one year of his valuable educational career because of the illegal action of the State Government, the interests of justice would be met if we allow the status quo to continue in spite of its being based on illegality and merely direct that the petitioner's application for admission to the 1st Year M. B. B. S. Class of the Punjab State Medical Colleges may be granted for the 1st M. B. B. S. Class, 1966 before filling in any other seat in the Medical Colleges for that class in the ensuing year.
13. We therefore, allow this writ petition without any order as to costs and hold that the reservation of more than 50 per cent seats and the adoption of the carry-over formula referred to above were both illegal, but direct that the admissions already made shall not be disturbed on this account and further order that the petitioner shall be admitted to the 1st Year M. B. B. S. Class 1966 to the State Medical College, Rohtak, Patiala or Amritsar irrespective of me fact whether he would or would not be entitled to such admission in competition with the candidates who may offer themselves for admission in the said class during this year.