JUDGEMENT_527_TLMPH0_2000 Vs. STATE

JUDGEMENT

(1.) THE factual matrix, the questions of law involved, the nature of rights that warrant adjudication in this batch of writ petitions being similar it was heard together and is disposed of by this common order. It is pertinent to state here that some writ petitions relate to admission to post graduate medical courses where in the process of revaluation (which has arisen like a phoenix after publication of results) the negative marking has been crucified in respect of Scheduled Castes and Scheduled Tribes and in other bunch of writ petitions, in admisson to M.B.B.S. and other courses negative marking has been given a burial as far as Scheduled Tribe candidates are concerned. Thus, in essence, the writ petitions are in two compartments but basic challenge being the same I have thought it appropriate to pass a common order. For the sake of clarity and convenience, the facts in W.P. No. 5553/2000 are adumbrated herein. Invoking the extra -ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the Petitioners have prayed for issuance of appropriate writ for quashment of the decision taken by the State Government, vide Annexure P/1 dated 7 -9 -2000 which relates to the Pre Post Graduation admission Test.

(2.) TO understand the contours of controversy it is essential to narrate the antecedents of the case as there has been an enormous effort by the State Government to do justice, equitable and laudable, as the learned Advocate General for the State, Mr. V.K. Tankha would like to put it, to the Scheduled Tribes which consists of a considerable portion of the population of the State. The State of M .P. by order dated 17 -6 -1996 prescribed qualifying marks of 20%, 15% and 40% for Scheduled Castes, Schedduled Tribes and other Backward Classes, respectively for the admission into post graduate medical education. The defensibility of the aforesaid action was considered by the apex court in the case of Dr. Preeti Shrivastava and Anr. v. State of M.P. and others : AIR 1999 SC 2894 wherein the Apex court set aside the decision of the State Government and observed that questions as regards the lowering of minimum qualifying marks for reserved categories at the post Graduate level of Medical education should be decided by the expert Body i.e. Medical Council of India. While leaving the matter to the expert body their lordships observed that minimum qualifying marks can be lowered for the reserved category candidates but while doing so there should not be a wide disparity between minimum qualifying marks for the reserved category candidates and the minumum qualifying marks for the General category candidates at the post Graduate level. The apex court further directed that pending consideration of the questions by the Medical Council of India the State Government should follow the norms laid down by the Medical Council of India for lowering the marks for admission to the under graduate subjects in medical course at the post Graduate level as a temporary measure. Before the Medical Council of India could take a decision the time became ripe to initiate process for selection for admission to post Graduate courses 2000 -2001. The State Government published M.P. Medical and Dental Post Graduate Entrance Examination Rules, 2000 (hereinafter referred to as 'the Rules'). Clause 3(111) (a) of the Rules prescribed reservation to Assistant Surgeon working under and sponsored by the Government, belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes. Clause (III) (b) of the Rules stipulated that as per the decision of the Supreme Court of India minimum qualifying marks for reserved category shall be forty pencent. The said Rule further provided that in case the minimum qualifying marks (cut off percentage) is changed by Government of India/MCI with reference to Hon'ble Supreme Court then same would be applicable. Clause 3(IX) of the Rules provided that candidates of General category securing more than 50% marks shall be included in the merit list and Reserved Category (SC, ST, OBC) securing minimum qualifying marks of 40% shall be placed in the merit list. It was also provided therein that seats remaining unfilled due to non -availability of eligible reserved category candidates, the said seats shall be reverted to the General category. Examination was held in pursuace of the said Rules on 5 -3 -2000 and results were published on 6 -4 -2000. After the results were published counselling began and it was found that adequate number of candidates belonging to scheduled castes and scheduled tribes had not obtained minimum qualifying marks of 40%. It is pertinent to state here that 492 seats were available for various Post Graduate faculties and out of those 55 and 90 seats were kept reserved for scheduled castes and scheduled tribes candidates respectively, but in these categories only 21 and 10 candidates could secure 40% marks. At this juncture the Chief Minister of the State made a request to the Prime Minister to intervene and to change the qualifying percentage of marks to 35% for the General categories and 25% for reserved categories. A similar letter was addressed to the President of the Medical Council of India. Awaiting response of these letters the State Government by its letter dated 22 -5 -2000 decided that the seats reserved for the members of the reserved categories should remain vacant and it may not be filled up and the said seats should be filled up only after the instruction is received from the Medical Council of India and the Government of India. The request made by the Chief Minister for relaxing the qualifying marks for admission was placed for consideration before the Executive Committee of the Medical Council of India and the Executive Committee of the council did not accede to the request made by the State Government. The resolution of the Executive Committee reads as under - The Executive Committee perused the letter received from the Hon'ble Chief Minister of State of M.P., Shri Digvijay Singh requesting the Council that the percentage of marks as qualifying marks which is fixed at 35% for general category and 25% for reserved category insted of 50% and 40% may be reviewed and refixed by the MCI in the interest of backward classes of the State.

(3.) HAVING appreciated the rival submissions, I do not find any substance in the submission of the learned Advocate General. After the judgment was rendered by the Supreme Court on 10th August, 1999 the State Government published the rules in which it has categoricaily provided that minimum qualifying marks for the reserved category candidate would be 40% and seats which remain unfilled on account of non -availability of sufficient number of candidates securing minimum qualifying marks of the reserved category, same would be reverted to the general category candidate. It is common ground that the Medical Council of India has not taken final decision as regards to the qualifying marks for admission at the post graduate level of medical equcation and further the request made by the State Government to lower the qualifying marks to 25% for reserved category candidate has been turned down by the Medical Council of India. In such a situation, Respondents cannot be allowed to postpone the process of selection and its completion indefinitely. In my opinion, so long the Medical Council of India does not take final decision the direction of the Supreme Court to follow the norms laid by the Medical Council of India for undergraduate course has to be followed. However, I would like to observe that Medical Council of India and the Government of India shall be well advised to take decision immediately, so as to avoid any confusion. The aforesaid decision of the learned Single Judge was challenged in a Letters Patent Appeal and the Division Bench after referring to the decision rendered in the case of Dr. Preeti Shrivastava (supra) held as under: In light of the aforesaid decision of the Supreme Court, the Medical Council of India has to take decision and till it is taken, the percentage of qualifying marks already fixed by the Medical Council of India would be applicable for admission to the undergradute (MBBS) Medical courses and to the post -gradute level courses also. With this background, the direction sought by the State cannot be granted and is liable to be rejected. As per admission Rules unfilled seats of reserved categories are to be filled from general category candidates. The admission have to be completed by 2nd July 2000. Therefore, direction issued by the learned Single Judge is absolutely correct and is hereby maintained. It is pertinent to note here the Division Bench directed that admission to General Category candidates against the seats which remained unfilled from the reserved category candidates should be given before 2nd July, 2000.