S.S. Sodhi, J.
1. There are three State owned medical colleges in the State of Punjab namely the Medical College, Amritsar; Medical College, Patiala and Medical College, Faridkot.
2. On the recommendation of the Medical Council of India, the State Government decided that for admissions to the three medical colleges in July, 1982, a common competitive entrance examination be held and that it be conducted, on behalf of the State Government and the medical colleges, by Punjabi University at Patiala.
3. The total number of seats available for admission to the medical colleges were as under:--
Medical College, Amritsar. 150Medical College, Patiala. 150Medical College, Faridkot. 60-------------Total 360-------------
Besides this, there were 30 seats available in the Government Dental College, Amritsar and 20 in the dental wing of the Government Medical College, Patiala.
4. A prospectus was issued for the competitive entrance examination for admissions to the medical colleges. Amongst other matters provided therein, provision was made for reservation of seats for nine categories of students. These categories and the extent of the reservations in respect thereof being as under:--
(i) Scheduled Castes/Scheduled Tribes.......................... 25%(ii) Backward Classes............................ 5%(iii) Backward Area........................... 2%(iv) Border Area............................ 2%(v) Sportsmen/women............................. 2%(vi) Nominees of the Central/State Govt............................ 7%(vii) Children/grandchildren of Political sufferers................. 2%(viii) Children/grandchildren of defence personnel.............. 2%(ix) Handicapped candidates (for M. B. B. S. course only)...... 1%
5. The prospectus also incorporated the notification issued by the State Government on May 18, 1892 (No. 7(3)-5 HB III-82/7778 of the Department of Health and Family Welfare (Health Branch III) Government of Punjab) which provided for the distribution of seats in the medical colleges. The relevant paragraph of this notification is reproduced hereunder:--
'Admission shall be given on the basis of the relative merit of candidates determined on the result of the competitive entrance examination. In the case of reserved seats relative merit of the candidates shall be determined within each category of reservation. A candidate, however, must secure a minimum of 50% marks in the competitive entrance examination to qualify for admission. Candidates belonging to Scheduled castes/Scheduled Tribes will have to secure a minimum of 33% marks in the said examination to qualify for admission. Within each reserved category the criterion for determining relative merit shall be the performance in the competitive entrance examination alone. In any main reserved category, there will be no sub-categories for preference. For example, in sports category, merit of candidates having different sports grades, will be determined only on the basis of performance in the entrance examination. Similarly there will be no preferential subcategory in the reserved categories mentioned at (vii), (viii), (ix) in para III (c). Seats left vacant in the reserved categories may be filled from the candidates of general category.'
6. The position, thus, was that 48% of the seats were set apart for the reserved categories, leaving 52% for the general category with the proviso that the unfilled seats, if any, of the reserved categories may go to the general category. In other words, with total seats being 360 those that fell in the general category were 187 while for Scheduled Castes and Scheduled Tribes the number was 90 seats.
7. The competitive entrance examination was held on June 21, 1982 and the result thereof was declared on 3rd July, 1982 and thereafter interviews for selection were held on July 17, 1982.
8. The examination results disclosed that only 39 candidates belonging to the scheduled castes and scheduled tribes qualified for admission to the medical colleges as against the 90 seats reserved for such candidates. Considering the large number of seats of this category left vacant thereby, the State Cabinet at its meeting held on July 7, 1982, decided that the minimum marks to qualify for admission to the medical colleges in the case of candidates belonging to scheduled castes/tribes and sportsmen and sportswomen be reduced. It was in pursuance of this decision that a notification was issued by the Punjab Government on July 19, 1982 whereby the minimum qualifying marks in the case of candidates belonging to the Scheduled castes and scheduled tribes were reduced from 33% to 25% and in the case of sportsmen and sportswomen from 50% to 25%. It is this notification which has been challenged by the petitioner Devinder Pal Singh filed by him under Arts. 226 and 227 of the Constitution of India as also by the petitioners in Civil Writ Petitions Nos. 2992, 2963, 2964, 2997, 3150, 3071, 3178, 3011 and 3226 of 1982. The issues raised in all these petitions being common, they were all heard together and it was agreed by counsel that the decision in Devinder Pal Singh's case would govern all the writ petitions.
9. It deserves note at the very outset that all the petitioners here are candidates who sat for the competitive entrance examination and by the results achieved by them therein they were not entitled to admission to any of the 187 seats available to candidates belonging to the general category.
10. The case of the petitioners is founded upon the argument that as only 39 candidates belonging to the Scheduled Castes and Scheduled Tribes qualified for admission to the 90 seats reserved for them, the 51 seats rendered vacant thereby became available for candidates belonging to the general category and the inclusion of these seats in this category opened up prospects for admission to the medical colleges for them. A vested right thereby enured to them. They could not now be deprived of this right by the impugned notification of July 19, 1982, which, if implemented, would lead to this result, as lowering the minimum qualifying marks for candidates belonging to the Scheduled Castes and Scheduled Tribes would inevitably make more such candidates eligible for the seats reserved for them and correspondingly reduce those available for inclusion in the general category. The contention being that the representations or conditions contained in the prospectus had the force of law which could not be retrospectively altered by Government in the exercise of its executive powers so as to take away the vested rights thereby. The vested rights here being in the 51 seats which became available to the candidates of the general category from those left unfilled from the quota reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes.
11. In order to establish the binding nature of the rules published in the prospectus Mr. Vishwanathan, learned counsel for the petitioners, cited Anil Nag v. State of Himachal Pradesh, (1981) 1 Serv LR 689, where in dealing with the rules relating to admissions to the medical college embodied in the prospectus it was held that such rules possessed the force of law having a binding effect upon the Government and other competent authorities for the purpose of admission to the medical college. A similar view was expressed by a Division Bench of our High Court in C. W. P. 3128/1981 (Ravdeep Kaur v. State of Punjab) decided on 28-7-1981.
12. The next limb of the argument of the counsel for the petitioners was with regard to the attribute of retrospectivity imputed to the impugned notification of July 19, 1982. In dealing with this aspect of the matter, reference was made to the observations of the Full Bench in Punjab University v. Subhash Chander, ILR (1977) 1 Punj & Har 56, where it was stated:
'....................... legislation is normally deemed to be prospective unless by clear intendment or necessary implication it has to be construed as retrospective also. However, this power of clothing legislation with retrospectivity is an attribute primarily of the plenary powers of the legislature itself. Power to legislate retrospectively is a hydra-headed weapon which must be wielded with care and circumspection and it is therefore that its exercise is normally left to the wisdom of the legislature itself rather than its delegates. To this rule, there is, however, one clear exception that the legislature whilst delegating its power to the subordinate authority may in express terms or by necessary intendment clothe the same with the identical power to make retrospective laws.'
In this behalf it was pointed out by the counsel for the petitioners that in the hierarchy of powers, executive powers were at the lowest rung and consequently no retrospectivity could be conferred by the exercise of such powers. Reference was next made to K. D. Vasudeva v. Union of India, (1971) 2 Serv LR 487 (Punj & Har), where it was held that unless there is power in any statute or statutory rules entitling the executive Government or any of its agencies to pass orders with retrospective effect it was not open to those authorities to pass such an order.
13. The other authority cited in support was Suresh Kumar v. Union of India, AIR 1969 Punj 257, where it was held that the Government had no lawful authority to prejudicially affect the civil rights of a Government servant retrospectively by mere executive fiat. On these principles, according to the counsel for the petitioners, the impugned notification was without jurisdiction and illegal.
14. Great stress was also laid by Mr. Vishwanathan counsel for the petitioner upon the reduction of the minimum qualifying marks in the competitive entrance examination to below 33% in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes. The contention being that less qualified and less deserving persons would be enabled thereby to fill up seats for admission in the medical colleges posing, on the one hand, a danger to society and, on the other hand, were likely to lead to vacancies in the colleges in the subsequent years by their inability to complete their courses of studies satisfactorily. Violation of Arts. 14 and 15 of the Constitution of India was complained of thereby.
15. Mr. K. P. Bhandari appearing for some of the other petitioners sought to press in aid the principle of equitable or promissory estoppel in seeking to impeach the notification of July 19,1982, reliance being placed in this behalf upon Kumari Akhtar v. Principal, Osmania Medical College, Hyderabad, AIR 1959 Andh Pra 493 and Abodha Kumar Mohapatra v. State of Orissa, AIR 1969 Orissa 80. In Kumari Akhtar's case (AIR 1959 Andh Pra 493) (supra) the relevant notification provided for the reservation of 10% of the seats for admission to the medical college for candidates belonging to the Marathawada area. After interviews for selection had been held, this reservation was withdrawn by the Government. It was held that having made an implied representation it was not open to the authorities concerned to detract from it and the principles of legal or equitable estoppel would apply. Similar was the position in Abodha Kumar Mohapatra v. State of Orissa, AIR 1969 Orissa 80. This was again a case relating to admissions to medical colleges. After the examinations had been held, instructions were issued by Government that no applications for admission would be entertained from students securing less than 50% marks in the pre-professional examination. Fifteen per cent seats were also reserved for lady students. It was held that the principle of legal or equitable estoppel was applicable in the circumstances of the case as the claim of the petitioners was appropriately founded upon the equity which arose in their favour as a result of the representations made on behalf of the Government in the notice relating to the admissions to the medical colleges and the action taken by the petitioners acting upon the said representations. The Government and the authorities concerned were, therefore, estopped from departing from the representations as contained in the original notice.
16. Mr. H. L. Sibal appearing for the respondent-State, on the other hand, vehemently argued that the impugned notification of July 19, 1982, could not be construed to have any such retrospective effect as could render it invalid or void on any of the grounds urged by the counsel for the petitioners, the argument being that the impugned notification could lay itself open to challenge only if it could be construed as taking away existing or vested right from the petitioners. No such right was in any manner affected by this notification as it concerned only the seats for the reserved categories and not those of the general category.
17. Adverting to the earlier notification of May 18, 1982 which was incorporated in the prospectus and has been reproduced above, counsel contended that it conferred no vested right in the candidates belonging to the general category any reserved seats which may have been left unfilled. The provision in the prospectus in this behalf was merely that such vacant seats 'may' be made available to the general category. There was no warrant for reading 'may' here as 'shall'. It was, thus, his contention that the vested rights of candidates belonging to the general category were only in the 52% seats available to them and no more. Any seats left vacant from the reserved categories which may be made available for candidates of the general category were seats becoming available to them merely as a bounty or on the off chance but not such as could accrue as a matter of right to such candidates. Seen in this light, no right of the candidates belonging to the general category was in any manner affected by the impugned notification of July 19, 1982. In this behalf, it was further the contention of Mr. Sibal that the Government could not be compelled to release the seats left vacant in the reserved category to the general category. In support of this contention, reliance was sought to be placed upon Kumari Chitra Ghosh v. Union of India, AIR 1970 SC 35. This was a case concerning admissions to the Maulana Azad Medical College, Delhi. The challenge here was to the nominations made for the reserved seats in this College. This challenge was upheld on the ground that the petitioners had no locus standi in the matter as they did not compete for the reserved seats and the assumption that if nominations to the reserved seats were not in accordance with rules, all such seats as have not been appropriately filled up would be thrown open to the general pool, was wholly unfounded. It was held that the Government was under no obligation to release those seats to the general pool. The Government may in the larger interests of giving maximum benefit to candidates belonging to the non-reserved category release seats to them but it cannot be compelled to do so at the instance of students who applied for admission from (sic) the categories for whom the seats had not been reserved.
18. Counsel for the respondents went on to argue that there was a constitutional mandate to further and promote the uplift of persons belonging to Scheduled Castes and Scheduled Tribes and in order to achieve this object it was not only open to the State to reserve seats for them in institution like medical colleges but also to make such provisions as may be necessary to make such reservations effective. In the present case, the number of such candidates who had qualified for admission was so low that reduction in the minimum qualifying marks was rendered imperative thereby as otherwise it would have amounted to a substantial de-reservation of seats of this category. Relaxation of the minimum qualifying marks for candidates belonging to the Scheduled Castes and Scheduled Tribes in the present case was, thus, clearly in furtherance of this constitutional obligation and was, therefore, both equitable and just and legal too and no invalidity attached thereto.
19. There is indeed merit in the contentions put forth by the counsel for the respondents. A plain reading of the relevant provisions contained in the prospectus would show that the right of candidates belonging to the general category was only to the seats available for such candidates. There was no right vested in them in respect of the seats left vacant from the reserved categories. They could at best look to such vacancies with the hope of a bounty which may or may not materialise and at any rate the extent thereof would always be an uncertain factor. This cannot, however, be the foundation of any right in the petitioners. The impugned notification of July 19, 1982 conferred rights only upon those to whom such rights were due. It concerned only the reserved categories and was, thus, not open to challenge on the ground of impinging upon any existing or vested rights of the petitioners. There was, thus no occasion for seeking to impeach this notification either on the ground of retrospectivity or on the principle of equitable estoppel.
20. Turning to the attack on the impugned notification on the ground of violation of Arts. 14 and 15 of the Constitution it was argued by the learned counsel for the respondents that it was founded upon the fallacy that relaxation granted thereby was in respect of eligibility whereas it was only in the matter of the selection of candidates for admission. Reliance in this behalf was placed upon State of M. P. v. Nivedita Jain, AIR 1981 SC 2045. This authority does indeed have an important bearing on the issues raised herein. In this case there were 720 seats available for admission to the medical colleges in Madhya Pradesh. The rules for admission to these colleges provided for reservation of 15% of the seats for each of the categories of the Scheduled Castes and Scheduled Tribes candidates. There were, thus, 108 seats reserved for the Scheduled Castes candidates and the same number for those belonging to the category of Scheduled Tribes. Rule 20 of the relevant rules provided that the minimum qualifying marks for admission to the medical colleges shall be 50% in the aggregate and 33% in each subject separately; but for Scheduled Castes and Scheduled Tribes candidates the minimum qualifying marks shall be 40% in the aggregate and 30% in each subject. This rule further empowered the Government, in the case of candidates belonging to Scheduled Castes and Scheduled Tribes, to grant special relaxation in the minimum qualifying marks to the extent considered necessary in the event of the required number of candidates in these two categories not being available. When the results of the examination was declared it was discovered that only 18 candidates belonging to the Scheduled Castes and 2 to the Scheduled Tribes had qualified for admission. Accordingly in exercise of the power under R. 20 referred to above, a relaxation of 5% was made in the minimum qualifying marks in terms thereof and as a result even more candidates in the category in Scheduled Castes and one from amongst those of the Scheduled Tribes qualified. Seeing the large number of seats that still remained unfilled out of the seats reserved for the Scheduled Castes and Scheduled Tribes candidates the State Government passed an order completely relaxing the condition relating to the minimum qualifying marks for these two categories. It was this order which was challenged in this case, the principal ground of challenge being that this order contravened regulation II of the Medical Council of India and the other that it would have the effect of allowing less qualified and less deserving candidates to fill up the seats and thereby destroy equality and violate Arts. 14 and 15 of the Constitution.
21. The Court observed that the eligibility of a candidate who may seek to get admitted into a medical college for obtaining recognized medical qualifications may be prescribed by the Medical Council. All candidates who are eligible for admission into medical colleges are entitled to seek admission but as to how selection has to be made out of the eligible candidates for admission to the medical colleges is a matter which has necessarily to depend upon the circumstances and conditions prevailing in a particular State. The process of selection of candidates for admission to a medical college out of the candidates eligible for admission for filling up the limited vacancies has no real bearing on the question of eligibility or qualification for admission or on the standard of medical education. The provisions of Regulation II of the Medical Council of India were thus held to be merely directory and not mandatory.
22. Turning to the challenge under Articles 14 and 15 of the Constitution, it was observed:
'It cannot be disputed that the State must do everything possible for the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities and the State if entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the state to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary.'
It was accordingly held that as the order in question was not liable to be struck down on the ground of contravention of Regulation II of the Medical Council of India, the order could clearly be supported under Article 15(4) of the Constitution. Further, the relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable and the said relaxation constitutes no violation of Arts. 15(1) and 15(2) of the Constitution nor does it affect Art. 14 thereof, the relaxation being only in the rule regarding selection of candidates belonging to the Scheduled Castes and Scheduled Tribes who were otherwise qualified and eligible to seek admission into medical colleges in relation to seats reserved for them.
23. The observations of the Supreme Court in Nivedita Jain's case (AIR 1981 SC 2045) (supra) are equally applicable to the present case, the relaxation here too being only in the matter of selection of candidates who were otherwise eligible for admission to the medical colleges.
24. It follows, therefore, that no invalidity or illegality attaches to the impugned notification of July 19, 1982, and the relaxation in the minimum qualifying marks extended thereby to candidates belonging to the reserved categories was, thus, validly granted. In the result, these writ petitions are hereby dismissed. There will, however, be no order as to costs.
S.S. Sandhawalia, C.J.
25. I agree.
26. Petitions dismissed.