GOVINDDAS MANNULAL SHROFF Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) WE have already passed operative order dated 29th August 1996 striking down Rule 4. 1. 2. 1. of the Rules called "rules for selection to M. B. B. S. / B. D. S. /b. A. M. S. /b. H. M. S. Courses, 1996-97" (hereinafter referred to as "the Rules") giving short reasons for the same. The said order is as under:-

(2.) (A) writ petition No. 4252 of 1996 this petition has been filed as a Public Interest Litigation, inter alia, praying that Rule 4. 1. 2. 1 of the Rules framed by the Government of Maharashtra be declared as invalid and unconstitutional and Government be directed to distribute all the seats in Medical Colleges on population basis including seats in Medical Colleges run by the Bombay Municipal corporation (B. M. C ). It is stated that Article 371 (2) (c) of the Constitution of India contemplates making equitable arrangements providing adequate facilities for technical education in respect of all the three regions in the State. The regional backwardness is a constitutionally accepted phenomena and, therefore, the claim of special treatment to the people from backward region like Maharashtra based on population is within the four corners of the provisions of the Constitution and the distribution of seats taking Marathwada region or area as a component is necessary. It is stated that when the population is accepted as a basis for distribution of seats in the Rules. There is no reason to exclude seats of any institution or college in the State from the purview of the common pool. It is necessary that total number of seats i. e. total intake of the State as a whole should be decided and it should be distributed to each region i. e. Marathwada, Vidarbha and rest of the Maharashtra (including Mumbai) on population basis. It is alleged that it is necessary in view of Article 371 (2) (c) of the Constitution which envisages principle of equitable arrangement of facilities for technical education. If this is not done, then it is violative of the spirit of Article 14 and 371 (2) (c) of the Constitution of India. Therefore, it is necessary to give a direction to the State Government to distribute the seats in medical colleges including post graduate courses on that basis. (b) writ petition No. 4253 of 1996. This petition has been filed on behalf of a student seeking admission to M. B. B. S. course. The student belongs to Scheduled Tribe reserved category. It is alleged that rule 4. 1. 2. 1 provides 70% reservation for open as well as reserved categories available in the State which will be pooled together and equitably distributed amongst all the Universities whereas Rule 4. 1. 2. 2 provides University area as a component in the matter of 70% regional reservation. It is contended that both these rules are contradictory and Rule 4. 1. 2. 1 overrides Rule 4. 1. 2. 2 and hence the said Rule 4. 1. 2. 2 be declared as invalid. (c) writ petition No. 1531 of 1996 and writ petition No. 1533 of 1996 these petitions have been filed by the students who are seeking admission in medical colleges within the region of Bombay University. They have been filed for declaration that Rule 4. 1. 2. 1 is invalid and further praying that the Rule of 1996-97 do not apply to medical colleges run by the B. M. C. It is mainly contended that B. M. C. colleges are not included in the colleges mentioned in the 1996-97 Rules (Annexure A) and the basis of population envisaged in the said Rules is unconstitutional and contrary to the decisions of the supreme Court. It is pointed out that distribution of the seats on the basis of population is admittedly not framed under the provisions of Article 371 (2) (c) of the Constitution. Admittedly, the Governor has not passed any order under the said provision and hence there is no question of admission. Rules having been made in pursuance of the said Article. It is further submitted that the said Article does not contemplate distribution of seats on the basis of population or dividing the facilities between the three regions on the basis of population. The Article envisages providing of facilities and that must mean that new facilities are to be created in the region by making necessary budgetary provision. It is further submitted that the said Rule is absolutely vague, impracticable and suffers from excessive delegation of the legislative function. It is unreasonable in nature and is having potentiality of bringing in flood of litigation every year in respect of admissions to medical colleges. It is also inconsistent with other provisions. Admittedly Rules are not framed on the basis of Article 371 (2) (c) of the Constitution.

(3.) WE may first point out that the learned Additional Advocate-General frankly and fairly conceded that at this stage he cannot rely upon Article 371 (2) (c) of the Constitution as no order is passed by the Honble governor. However, he relied upon Article 162 of the Constitution to support the validity of the 1996-97 Rules. Since some of the learned Counsel tried to rely upon the said Article we are dealing with it at the outset.