U SHANKAR Vs. NIMS

JUDGEMENT

(1.) The learned Counsel for the petitioners filed a memo seeking leave to withdraw his vakalat. With the leave of the Court, the second petitioner has argued the matter personally.

(2.) In this writ petition the petitioners assail the action of the first respondent, the Nizams Institute of Medical Sciences, Hyderabad, ("NIMS" for short) in treating both the seats in M.D. (R.D.)/D.M. R.D. available to Osmania University area as reserved seats and giving admission to respondents 3 and 4 herein as being arbitrary and illegal and consequently to direct the first and second respondent-authorities to give admission to one of the petitioners herein into the said course/courses by treating one of the said seats as an open seat. It is not in dispute that the total number of seats available in M.D. (R.D.) course are two and the seats available in D.M. R.D. course are four in NIMS which is a State wide institution.Thus the total number of seats for both the courses which are treated as a single unit for the purpose of admissions is six. Out of the six available seats, one seat has to be set apart for the unreserved category. Out of the remaining five seats, as per the Presidential Order dated 1-7-1974, two seats are available to Andhra University area, two seats to Osmania University area and one seat is available to the S. V. University area. In the instant case we are concerned with the two seats which are available to the Osmania University area. Out of the two seats, which are available to the Osmania University area, one is in M.D. (R.D.) course whereas the other is in DMRD course. The seat in M.D. (R.D.) is given to the third respondent who belongs to the B.C. category. The seat in D.M. R.D. is given to the 4th respondent who also belongs to the B.C. category. As the 4th respondent did not join, the same was given to another candidate belonging to the B.C. category. Thus both the seats are given to candidates belonging to the reserved category only. The petitioners challenge the allotment of both the seats to the reserved category as being contrary to the Full Bench judgment of this Court in D. Rajesh Babu vs. NIMS and the instructions contained in G.O.Ms.No. 114, Health, Medical and Family Welfare (E2) Department, dated 25-4-1998 issued by the Government pursuant to the directions given by the Full Bench. In the said Full Bench Judgment, it was held that the area reservation made under the Presidential Order issued under Article 371-D of the Constitution prevails over the general provision for class reservation envisaged under Articles 15(4) or 16(4) of the Constitution of India and that the roster for class reservation has to be confined to the area for which reservation is provided under the Presidential Order. It was also held that independent roster is necessary for class reservation in each area. The class reservation made in favour of candidates belonging to S.Cs., S.Ts., and B.Cs., is in the ratio of 15% : 6% : 25%. The total is 46%. Thus only one of the two seats available in the Osmania University area can be reserved in favour of the candidates belonging to S.Cs., S.Ts., and B.Cs. It is not in dispute that the first petitioner obtained a total of 131 marks and the second petitioner obtained 125 marks whereas Respondent No. 3 got 123 marks and Respondent No. 4 got 122 marks only. The petitioners are not seriously disputing the selection of the third respondent for the seat in M.D. (R.D.). The remaining seat in D.M. R.D. alone falls for consideration.

(3.) Having regard to the categorical pronouncement of the Full Bench and also the guidelines issued in G.O.Ms.No. 114, the allotment of this seat in D.M. R.D, to Respondent No. 4 under the reserved category is clearly unjustified. The said seat has to be treated as being open to all. If so, the petitioners, who have secured higher marks than the 4th respondent, are clearly entitled for consideration for allotment of the said seat in preference to the 4th respondent.