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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. _157 OF 2018
(Arising out of SLP (Civil) No. 7756 of 2017)
Tripurari Sharan and Anr. ....Appellants
Versus
Ranjit Kumar Yadav & Ors. ....Respondents
With
CIVIL APPEAL NO. 158 OF 2018
(Arising out of SLP(C) No.21019 of 2017)
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. Judgment dated 28.10.2016 passed by the High Court of
Judicature at Patna in MJC No. 3680 of 2016 in CWJC No.16673 of
2016 and connected matters is called in question in these appeals. By
the said judgment, the full Bench of the High Court answered the
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reference made to it by the Division Bench of the Patna High Court in
the matter of validity or otherwise of admission process for MBBS/BDS
and PG courses pursuant to a circular dated 14.11.1995 of the State
Government.
3. Before proceeding further it would be pertinent to note the
relevant circular i.e. circular no. 226(24) dated 14.11.1995 which reads
as under:
“According to this new system, applicable with
immediate effect, candidates of reserved classes, who on
the basis of merit, are entitled to get admission against
50% seats of the general category, having transferred
them in the list of their respective reserved class, they
will be facilitated with admission in college and subject
of their choice on the basis of their merit in at
(respective) list. Thus, after transfer from one to another
list, those candidates of that (respective) reserved class,
who found place in the bottom of the separate list,
prepared for that (respective) class, naturally will come
down and can come out of the seats available in the
ratio of the percentage prescribe for that (respective)
reserved class. To avoid this situation and in any case
to avoid the adverse impact on the number of seats
prescribed for reserved class after transferring
candidates of that class only into that list and so that
candidates in the bottom of the list also could not be
deprived of admission and so that candidates of reserves
class, selected on the basis of merit could not be
deprived of being consolidated in general seats. To
ensure it, this system will be applicable that after above
stated transfer, candidates at the bottom of list of their
respective reserved class, though being at the bottom of
the merit list of this list, shall be absorbed against 50%
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seats, available for general category and they shall be
allotted colleges and subject available for the general
seats on the basis of choice in the order of merit in that
list. Thus, the list which will be prepared against 50%
seats, available for general category, candidates
transferred by above stated method from the list of
reserved class will be absorbed in that list only and they
will also be facilitated admission.”
As per the aforementioned circular, a Meritorious Reserved
Candidate (MRC) is treated as general merit candidate and is allotted a
seat in the general merit category; such MRC may instead choose to
take up a seat from amongst the seats earmarked for that particular
reserved category to which he belongs to gain admission in the college of
his preference; on doing so, the choice of seat in the general category left
by the MRC will go to a candidate of the reserved category.
4. It was contended before the Patna High Court by the
appellants that the seat which remained unfilled because of
migration/shifting of a MRC to the reserved category should be filled up
by the candidates from the general category list inasmuch as the MRC
virtually shifts himself to the reserved category. Per contra it was
contended by the contesting respondents that such seat should
continue to be filled up by the ousted candidates at the bottom of the
reserved category list, in view of the fact that the MRC continues to be a
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general category candidate. By the impugned judgment, the Patna High
Court answered the reference in favour of the respondents as under:
“15. In view of the discussions above and what has
been held by Supreme Court in cases of Ramesh Ram
(supra) and Ritesh R. Sah (supra) we arrive at the
following conclusion(s) :-
(i) There is an obvious distinction between qualifying
through a common entrance test for securing admission
to medical courses in various institutions vis-a-vis a
common competitive examination held for filling up
vacancies in various services.
(ii) This distinction arises because all candidates receive, in
a case of common entrance test held for securing
admission in medical institutions, the same benefits of
securing admission in one of the medical institutions, in
a particular course, whereas in the case common
selection process adopted for filling up vacancies in
various services, there are variations, which accrue to
the successful candidates, because the services may
differ in terms of status and conditions of service
including pay scale, promotional avenues, etc.
Consequence of migration of an MRC to the concerned
reserved category shall be, therefore, different in case of
the admission to various medical institutions vis-a-vis
selection to various posts.
(iii) In case of admission to medical institutions, an MRC
can have in, for the purpose of allotment of institutions,
of his choice, the option of taking admission in a college,
where a seat in his category is reserved. Though
admitted against a reserved seat, for the purpose of
computation of percentage of reservation, he will be
deemed to have admitted as an open category candidate,
rather he remains an MRC. He cannot be treated to
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have occupied a seat reserved for the category of
reservation he belongs to. Resultantly, this movement
will not lead to ouster of the reserved candidate at the
bottom on the list of that reserved category. While
his/her selection as reserved category candidate shall
remain intact, he/she will have to adjusted against
remaining seats, because of movement of an MRC
against reserved seats, only for the purpose of allotment
of seats.
(iv) In the case of filling up of posts based on common
competitive selection process in different services,
situation will be entirely different, when an MRC opts to
move to the reserved category, which he belongs to, for
getting a service/post of his choice. In such a situation,
the candidate, at the bottom of list of the concerned
category, will have to move out and the slot, in the
general merit list, will stand vacated, because of
migration of the MRC will have to be filled up from
general merit list. Otherwise, if the open seats are
allowed to be filled up by candidates of reserved
categories, it will result into extending the benefit of
reservation beyond fifty percent, which is
constitutionally impermissible.
16. The reference is answered accordingly.”
While deciding the reference as mentioned supra, the full
Bench of the Patna High Court has distinguished between two sets of
cases viz. (a) case of securing admission to medical courses in various
institutions through a common entrance test; and (b) case of filling up of
vacancies in various civil services through common competitive
examination.
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5. In the matter on hand, we are concerned with securing
admission to medical courses through a common entrance test and the
procedure to be followed in case of a MRC and allotment of seat in
college.
6. It was submitted by Shri Shekhar Naphade and Shri
Subramonium Prasad, learned Senior Counsel, on behalf of the
appellants, that the reservation cap in admissions to medical colleges
cannot exceed 50% in any case. They argued that a MRC migrates to
the reserved category when he chooses a seat earmarked for the
reserved category. Resultantly, the seat vacated by MRC being a general
category seat must necessarily be filled up by general category
candidates.
For the respondents, Shri Prashant Bhushan, learned
Counsel, supporting the decision of the Patna High Court argued that
the MRC continues to be part of the general category even after opting
for a seat in the reserved category. He contended that the reserved
category candidate who is affected by the choice of the MRC must be
given a choice of seats in the general category. Ms. Meenakshi Arora,
learned Senior Counsel, submitted that by the process adopted, the 50%
reservation is not breached.
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7. Often, in a competitive examination held for the purpose of
admission in technical and medical institutions etc. some candidates
belonging to reserved category/categories, qualify for the higher ranking
on the basis of their own merit and depending on their performance in
the common entrance test, are placed in the general merit list. Such
class of candidates belonging to reserved categories who qualify on their
own merit, to be placed in general merit list, are described, for the
purpose of convenience, as Meritorious Reserved Candidate (MRC). It is
by now well settled that a MRC who goes on to occupy a general
category seat is not counted against the quota reserved for a reserved
category candidates, but is treated as an open competition candidate or
general merit candidate. This Court in the case of Indra Sawnhey v.
Union of India, 1992 Supp (3) SCC 217 has observed thus:
“In this connection it is well to remember that the
reservations under Article 16 (4) do not operate like a
communal reservation. It may well happen that some
members belonging to, say, Scheduled Castes get selected
in the open competition field on the basis of their own
merit; they will not be counted against the quota reserved
for Scheduled Castes; they will be treated as open
competition candidates” (emphasis
supplied)
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Even in service matters, the same principle is made applicable. The
aforementioned principle of Indra Sawnhey (supra) is followed for
admissions to seats in medical colleges, and the same was followed in
the case of R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.
However, the issue before us is more nuanced – whether MRC can opt
for a seat earmarked for reserved category? “If answer is yes” then since
MRC exercises the option of admission to the seats in different colleges
earmarked for reserved category candidates, should a less meritorious
reserved category candidate who is affected by such process be given
admission to the college left over by MRC consequently?
This would be better understood by a simplified example. Let
it be assumed that there are 100 seats available through one common
entrance examination to PG courses in various medical colleges across
the country. Of these, 50 are general category seats and the remaining
50 are reserved category seats. X, a reserved category candidate, is
assigned rank number 50 on account of his performance in the entrance
examination. Thus he is just above the cut-off for reserved category
candidates, and has got an open merit rank. Hence, X is a MRC;
however, X being in general category is not willing to accept the seat
available for general category at the time of his counselling. He wants
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admission in another college of his preference which is incidentally
reserved for reserved category candidates, and a seat in the same is
available in the reserved category. Consequently, X chooses a seat
available in the college meant for reserved category candidate based on
his merit among the reserved category candidates. As he does so, one
seat in the general category list of 50 candidates remains unoccupied. In
that context, two questions arise for consideration:
i. Whether X – MRC can opt for a seat earmarked for reserved
category?
ii. If answer is yes; what happens to the 50th seat which was to be
allotted to X – MRC (i.e. 50th general merit candidate) had he opted
for a seat meant for the reserved category to which he belongs?
8. This court has repeatedly including the judgment in the case
of Indra Sawhney (supra), has concluded that the aggregate reservation
should not exceed 50%. Therefore, even when a MRC opts for a seat
reserved for reserved category candidates, caution has to be exercised to
maintain the reservation to 50%. So also it is not open for the
authorities to deny a MRC a seat in the college of his preference based
on his merit, if such seat is available at the relevant point of time and
the same is reserved for candidates of the reserved category to which the
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MRC belongs. This is because there may be instances where a MRC
may not get a seat in the institution of his choice on the basis of his own
merit in the general merit. Under such circumstances, he may opt to be
treated notionally as a candidate belonging to the reserved category only
for the purpose of getting a seat in the college reserved for reserved
category students. If such MRC is to be placed in the reserved merit list
of his category, he would be ranking high and may get better choice of
institution or course. A MRC cannot be placed in a disadvantageous
position by not permitting him to be treated as reserved candidate, as
that would amount to making him suffer for his better performance in
the competitive examination.
In the case of Shri Ritesh R. Sah v. Dr. Y.L. Yamul, (1996)
3 SCC 253, this Court has had an occasion to deal with both the above
questions. This Court held that a MRC who has opted for a seat in the
college reserved for reserved category will not migrate/shift to reserved
category but should be treated as part of the general category only.
However, only for the purpose of getting better choice of seat in the
college, he may opt to take a seat in the college reserved for the reserved
category. This Court observed thus:
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“17…In view of the legal position enunciated by this
Court in the aforesaid cases the conclusion is irresistible
that a student who is entitled to be admitted on the
basis of merit though belonging to a reserved category
cannot be considered to be admitted against seats
reserved for reserved category. But at the same time the
provisions should be so made that it will not work out to
the disadvantage of such candidate and he may not be
placed at a more disadvantageous position than the
other less meritorious reserved category candidates. The
aforesaid objective can be achieved if after finding out
the candidates from amongst the reserved category who
would otherwise come in the open merit list and then
asking their option for admission into the different
colleges which have been kept reserved for reserved
category and thereafter the cases of less meritorious
reserved category candidates should be considered and
they will be allotted seats in whichever colleges the seats
should be available. In other words, while a reserved
category candidate entitled to admission on the basis of
his merit will have the option of taking admission to the
colleges where a specified number of seats have been
kept reserved for reserved category but while computing
the percentage of reservation he will be deemed to have
been admitted as a open category candidate and not as
a reserved category candidate.”
Right from the year 1996, the law is well settled that the provisions
should be so made that they will not work out to the disadvantage of a
MRC and he would not be placed at a more disadvantageous position
than the less meritorious reserved category candidates. Aforementioned
objective can be achieved if, after finding out the candidates from
amongst the reserved category who would otherwise come in the open
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merit list and then asking their option for admission into the different
colleges which have been kept reserved for reserved category, the cases
of less meritorious reserved category candidates are considered.
In other words, the reserved category candidate is entitled to
admission on the basis of his merit, and he will have the option of
taking admission to the colleges where a specified number of seats are
kept reserved for the reserved category. However, while computing the
percentage of reservation, he will be deemed to have been admitted as
an open category candidate and not as a reserved category candidate.
9. Shri Shekhar Naphade and Shri Subramonium Prasad,
learned Senior Counsel on behalf of the appellants, relying upon the
Constitution Bench judgment in the case of Union of India v. Ramesh
Ram and Others, (2010) 7 SCC 234, contended that a seat left over in
the general category by a MRC because of his option of a seat in the
reserved category, should be filled up by a general merit candidate and
not by a reserved category candidate. They relied upon paragraph 39 of
the said judgment, which reads as follows:
“39. A significant aspect which needs to be discussed is
that the aggregate reservation should not exceed 50% of
all the available vacancies, in accordance with the
decision of this Court in Indra Sawhney v. Union of
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India, (1992) Supp 3 SCC 217. If the MRC candidates
are adjusted against the Reserved Category vacancies
with respect to their higher preferences and the seats
vacated by them in the General Category are further
allotted to other Reserved Category candidates, the
aggregate reservation could possibly exceed 50 % of all
of the available posts.”
Before commenting on the judgment of the Constitution
Bench in Ramesh Ram (supra), it would be beneficial if the facts and
contexts referred thereto are looked into.
In the said matter, the Constitutional validity of Sub-Rules (2)
to (5) of Rule 16 of the Civil Services Examination Rules, for the civil
services examinations from 2005 to 2007, was involved. Rule 16(2) was
as follows,
“16(2) While making service allocation, the candidates
belonging to the Scheduled Castes, the Scheduled Tribes
or Other Backward Classes recommended against
unreserved vacancies may be adjusted against reserved
vacancies by the Govt. if by this process they get a
service of higher choice in the order of their preference.”
This Court, after examining the rival contentions on record, held that a
MRC opting for a reserved category seat should be treated as a reserved
category candidate, which means that he is deemed to have
migrated/shifted from the general category to the reserved category to
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which he belongs once and for all, and that the vacant general category
seat left by a MRC should be filled by a general category candidate. It
arrived at the following findings:
“50. We sum up our answers-:
i) MRC candidates who avail the benefit of Rule 16 (2)
and adjusted in the reserved category should be counted
as part of the reserved pool for the purpose of
computing the aggregate reservation quotas. The seats
vacated by MRC candidates in the General Pool will be
offered to General category candidates.
ii) By operation of Rule 16 (2), the reserved status of an
MRC candidate is protected so that his/ her better
performance does not deny him of the chance to be
allotted to a more preferred service.
iii) The amended Rule 16 (2) only seeks to recognize the
inter se merit between two classes of candidates i.e. a)
meritorious reserved category candidates b) relatively
lower ranked reserved category candidates, for the
purpose of allocation to the various Civil Services with
due regard for the preferences indicated by them.
iv) The reserved category candidates "belonging to OBC,
SC/ ST categories" who are selected on merit and placed
in the list of General/Unreserved category candidates
can choose to migrate to the respective reserved
category at the time of allocation of services. Such
migration as envisaged by Rule 16 (2) is not inconsistent
with Rule 16 (1) or Articles 14, 16 (4) and 335 of the
Constitution.”
In Ramesh Ram (supra), this Court has seemingly and
intrinsically arrived at a diametrically opposite decision from Ritesh R.
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Sah (supra). Indeed, the aggregate reservation should not exceed 50%
of the available vacancies. While we are undoubtedly bound by Ramesh
Ram (supra), the very judgment justified why it is so different from
Ritesh R. Sah (supra). It categorically held that there is a distinction
between selection and admission of PG candidates as in Ritesh R. Sah
(supra), and selection and appointment of UPSC candidates as in
Ramesh Ram (supra). While in postgraduate admissions, the results
will grant all the candidates the same benefit irrespective of rank (i.e.,
admission in medical colleges), the results in UPSC selections give
varying benefits to varying rank-holders, as the allocation of services is
based on rank. This Court thus held that in case of UPSC selections, the
general category seat vacated by a MRC to occupy a reserved category
seat, must be filled up by candidates from the general category. It also
held that such MRC should be counted in the reserved category (and not
in the general category, as Ritesh R.Sah (supra) did) in order to prevent
the reservation cap from exceeding 50%. It would be beneficial to look
into Paragraphs 31, 32, 66 and 67 of Ramesh Ram (supra) for the
purpose of distinguishing the said matter from the matter on hand and
they read as follows:
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“31. The respondents have also placed strong reliance
on this Court's decision in Ritesh R. Sah v.
Dr.Y.L.Yamul (1996) 3 SCC 253). The question in that
case was whether a Reserved Category candidate who is
entitled to be selected for admission in open competition
on the basis of his/her own merit should be counted
against the quota meant for the Reserved Category or
should he be treated as a general candidate. The Court
reached the conclusion that when a candidate is
admitted to an educational institution on his own merit,
then such admission is not to be counted against the
quota reserved for Scheduled Castes or any other
Reserved Category. However, it is pertinent to note that
this decision was given in the context of admissions to
medical colleges …”
“32. There is an obvious distinction between qualifying
through an entrance test for securing admission in a
medical college and qualifying in the UPSC
examinations since the latter examination is conducted
for filling up vacancies in the various civil services. In
the former case, all the successful candidates receive
the same benefit of securing admission in an
educational institution. However, in the latter case there
are variations in the benefits that accrue to successful
candidates because they are also competing amongst
themselves to secure the service of their choice. For
example, most candidates opt for at least one of the first
three services [i.e. Indian Administrative Service (IAS),
Indian Foreign Service (IFS) and Indian Police Service
(IPS)] when they are asked for preferences. A majority of
the candidates prefer IAS as the first option. In this
respect, a Reserved Category candidate who has
qualified as part of the general list should not be
disadvantaged by being assigned to a lower service
against the vacancies in the General Category especially
because if he had availed the benefit of his Reserved
Category status, he would have got a service of a higher
preference. With the obvious intention of preventing
such an anomaly, Rule 16 (2) provides that an MRC
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candidate is at liberty to choose between the general
quota or the respective Reserved Category quota.”
“66. The decision in Anurag Patel in turn referred to the
earlier decision in Ritesh R. Sah v. Dr. Y.L. Yamul.
However, we have already distinguished the judgment in
Ritesh R. Sah. That decision was given in relation to
reservation for admission to post graduate medical
courses and the same cannot be readily applied in the
present circumstances where we are dealing with the
examinations conducted by UPSC. The ultimate aim of
civil services aspirants is to qualify for the most coveted
services and each of the services have quotas for
reserved classes, the benefits of which are availed by
MRC candidates for preferred service. As highlighted
earlier, the benefit accrued by different candidates who
secure admission in a particular educational institution
is of a homogeneous nature. However, the benefits
accruing from successfully qualifying in UPSC
examination are of a varying nature since some services
are coveted more than others.
67. The order of CAT is valid to the extent that it relied
on the ratio propounded by this Court in Anurag Patel v.
U.P. Public Service Commission. Even though that
decision had in turn relied on the verdict of this Court in
Ritesh R. Sah v. Dr. T.L. Yamul, the latter case is
distinguishable from the present case with respect to
the facts in issue. However, we cannot approve of the
conclusions arrived at in the Central Administrative
Tribunal order as it failed to take note of the unique
characteristics of UPSC examinations.”
(Emphasis supplied)
Hence it is amply clear that, the Constitution Bench makes a
distinction between two types of selections, i.e., selection to medical
colleges through a common entrance test, and selection to posts in
services through the UPSC examination.
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It is also pertinent to note that the Constitution Bench has
virtually but impliedly approved Ritesh R. Sah (supra) insofar as the
procedure to be adopted in cases of admissions to medical colleges
through a common competitive examination is concerned. In view of the
above, the principles laid down in Ramesh Ram (supra) may not be
applicable to the facts of this case, inasmuch as this is a case pertaining
to admission in medical colleges and whereas Ramesh Ram (supra)
pertains to selections to the posts for services through the UPSC
examination.
This Court, in the case of Alok Kumar Pandit v. State of
Assam & Ors. 2012 (13) SCC 516, has reiterated that the dictum laid
down in Ramesh Ram (supra) is applicable only to admission to various
services in the UPSC.
10. Ritesh R. Sah (supra) was subsequently followed in Samta
Aandolan Samiti v. Union of India, (2014) 14 SCC 745 wherein this
Court observed thus:
“22. No doubt, while doing so, the Court in Ramesh Ram
case was of the opinion that such meritorious reserved
candidates (MRC) who avail the benefit of Rule 16(2) of
the Civil Services Examination Rules (which permitted
such inter-se transfer) and are eventually adjustment in
the reserved category, they should be counted part of
reserved category for the purpose of computing
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aggregate reservation quota. However, it was
categorically stated that this proposition applies when
there is an appointment to a service under the State and
categorically excluded the cases of admission in
educational institutions. In so far as admission in
educational institutions is concerned, such a MRC was
to continue to be treated as belonging to general
category, which position he attained because of his
initial merit. The Court noted that this was so held in
Ritesh R. Sah v. Dr. Y.L. Yamul (1996) 3 SCC 253.”
… … …
“24. Since, we are concerned with the admission to
medical course, aforesaid judgment squarely applies to
the present case. Thus we find that neither upper limit
of 50% reservation is breached, nor any rights of the
Petitioners are violative or the action of the Respondents
have been to their prejudice in any manner. Thus, we do
not find any merit in the present petition, which is
accordingly dismissed. No costs.”
(Emphasis supplied).
11. Shri Naphade and Shri Prasad also sought to rely upon the
decision of a Coordinate bench of this Court in State of Bihar v. M.
Neethi Chandra, (1996) 6 SCC 36, wherein this Court observed as
follows:
“10. Let us take a situation in which in a particular
reserved category there are x number of seats but the
candidates qualifying according to criteria fixed for that
category are X+5 with the best among them also
qualifying on merit as general candidates. According to
the arrangement made by circular No. 20, the first
candidate gets a choice along with the general category
candidate but being not high enough in the list, gets a
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choice lesser than what he could secure in the reserved
category to which he was entitled. The x number of
seats could then be filled up with the four qualifying
candidate being denied admission for want of seats. This
would have been harsh for the best candidate as well as
violative of Articles 14 and 16 of the Constitution. On
the other hand, if the direction of the High Court is
followed, the first x number of candidates get seats
according to merit against the reserved seats but the
remaining 5 will also have to be 'adjusted' against the
open seats of regular candidates. These 5 will be those
who are not qualified according to the general merit
criteria and so will necessarily displace 5 general
candidates who would be entitled to seats on merit.”
… … …
“12. In a particular year, the number of such candidates
may be much larger and thus the method evolved by the
High Court may create much hardship. The method will
also not be in tune with the principles of equality. Hence
the method evolved by the High Court will have to be
struck down.
13. At the same time, as pointed out above, all is not
well with the Government circular No. 20 as it operates
against the very candidates for whom the protective
discrimination is devised. The intention of the circular
No. 20 is to give full benefit of reservation to the
candidates of the reserved categories. However, to the
extent the meritorious among them are denied the
choice college and subject which they could secure
under the rule of reservation, the circular cannot be
sustained. The circular, therefore, can be given effect
only if the reserved category candidate qualifying on
merit with general candidates consents to being
considered as a general candidate on merit-cum-choice
basis for allotment of college/institution and subject.”
(emphasis supplied)
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M. Neethi Chandra (supra) was upheld by a three-Judge
bench of this Court in Dr. Anil Kumar v. State of Bihar, (1998) 9 SCC
405, but to the extent that it held that a MRC should not be forced to
choose seat from the general category. However, it needs to be
mentioned that M. Neethi Chandra (supra) may not be applicable to the
facts of this case. In the case of M. Neethi Chandra (supra), this Court
was concerned with a different circular altogether, i.e., Circular No.
11/K1 -1022/91-K20 (“Circular No. 20”), issued by the Government of
Bihar, Department of Personnel and Administrative Reforms on
07.02.1992 on the subject of “provision for reservation for nominating
(admission) of Scheduled Caste/Tribes/Backward class/Extremely
Backward Class/Female into the Professional Training Institutes.” That
circular was challenged on the basis that MRCs were not allowed to
choose the seats kept reserved for the reserved category. Paragraph 6 of
that circular reads as follows:
“6. As there is provision in direct appointment to the
effect that the candidates belonging to reserved classes,
who are selected on the basis of merit, would not be
adjusted against reserved seats, similarly maintaining
the same arrangement here also the candidates selected
on the basis of merit for admission into professional
training institutes would not be adjusted against the
reserved quota for the candidates of reserved classes.”
22
The judgment of the High Court that was set aside by this
Court in M. Neethi Chandra (supra) had devised a completely different
way of conducting PG admissions, which was not at all akin to the
present case. The High Court in the said matter has sought to fill up
reserved category posts first and adjust any reserved category
candidates not allotted a seat in the general category. This Court in M.
Neethi Chandra (supra) summarized the method of allotment of seats
adopted by the High Court thus,
“To remove the anomalies, the High Court devised a
method of allotment of seats by which the reserved seats
are offered first (i.e. before the general seats are filled) to
the candidates of the reserved category on merit, and
after all the reserved seats are so filled up, all other
qualifying candidates of the reserved category are
"adjusted" against open seats in the general category
along with the general merit candidates and offered
seats on merit-cum- choice basis (see para 11 of the
judgment).”
12. In the matter on hand, it is not the case that any other
candidate of the reserved category, other than the candidate taking up
the MRC’s general category place in choosing general category seat, will
be adjusted. Moreover this issue is not under challenge in the present
case, as both sides are admittedly not contesting the right of a MRC to
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choose a seat earmarked for the reserved category. On the other hand,
it is fairly submitted by Shri Naphade and Shri Prasad that a MRC has
got a right to choose a seat earmarked for reserved category/categories.
However, they are only worried that the aggregate reservation should not
exceed 50%.
It follows from the cases cited above that the 50% reservation
rule should not be breached under any circumstances. As mentioned
supra, a MRC in medical admissions has more marks than the last
general merit candidate, hence he shall be treated as a general category
candidate. Only a choice of college seats in the reserved category is open
to him. In this manner, the number of seats in each category remains
constant and the upper limit of 50% reservation is not breached.
13. It is clear from Ritesh R. Sah (supra), that in the case of
admission to postgraduate medical institutions, a MRC who chooses to
avail of the option of admission to a college with seats kept for the
reserved category is deemed to have been admitted as an open category
candidate. He continues to be open category candidate. There is no
migration into the reserved category even if a MRC opts for a seat
earmarked for reserved category candidates. The lowest-ranking
24
candidates who qualified in the reserved category, cannot hence have
option for colleges/seats in reserved category on account of the MRC’s
choice, may be adjusted against the choices of college seats then
available in the general category left over by MRC. However such
reserved category candidates continue in reserved category, except for
such option. Thus, by treating a MRC as a general category candidate,
the number of reserved seats remains the same, and reservations do not
exceed 50%. This is also consistent with the principles of equity. In view
of the above, we could not find any reason to disagree with the
conclusions reached by the full Bench of the High Court.
14. In light of the cases discussed hereinabove, both questions
are answered as follows:
i) A MRC can opt for a seat earmarked for the reserved category,
so as to not disadvantage him against less meritorious reserved
category candidates. Such MRC shall be treated as part of the
general category only.
ii) Due to the MRC’s choice, one reserved category seat is
occupied, and one seat among the choices available to general
category candidates remains unoccupied. Consequently, one
25
lesser-ranked reserved category candidate who had choices
among the reserved category is affected as he does not get any
choice anymore.
To remedy the situation i.e. to provide the affected candidate a
remedy, the 50th seat which would have been allotted to X –
MRC, had he not opted for a seat meant for the reserved
category to which he belongs, shall now be filled up by that
candidate in the reserved category list who stands to lose out by
the choice of the MRC.
This leaves the percentage of reservation at 50% undisturbed.
15. We reiterate that, 50% reservation rule should not be
breached under any circumstance.
16. The High Court has succinctly dealt with the issue as well as
the case law on the point. It has rightly held that Ritesh R. Sah (supra)
governs admissions in medical institutions. We see no reason to
interfere.
26
17. Appeals are accordingly dismissed. No order as to costs.
.................................................J.
(ARUN MISHRA)
.................................................J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi;
January 11, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. _157 OF 2018
(Arising out of SLP (Civil) No. 7756 of 2017)
Tripurari Sharan and Anr. ....Appellants
Versus
Ranjit Kumar Yadav & Ors. ....Respondents
With
CIVIL APPEAL NO. 158 OF 2018
(Arising out of SLP(C) No.21019 of 2017)
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
2. Judgment dated 28.10.2016 passed by the High Court of
Judicature at Patna in MJC No. 3680 of 2016 in CWJC No.16673 of
2016 and connected matters is called in question in these appeals. By
the said judgment, the full Bench of the High Court answered the
2
reference made to it by the Division Bench of the Patna High Court in
the matter of validity or otherwise of admission process for MBBS/BDS
and PG courses pursuant to a circular dated 14.11.1995 of the State
Government.
3. Before proceeding further it would be pertinent to note the
relevant circular i.e. circular no. 226(24) dated 14.11.1995 which reads
as under:
“According to this new system, applicable with
immediate effect, candidates of reserved classes, who on
the basis of merit, are entitled to get admission against
50% seats of the general category, having transferred
them in the list of their respective reserved class, they
will be facilitated with admission in college and subject
of their choice on the basis of their merit in at
(respective) list. Thus, after transfer from one to another
list, those candidates of that (respective) reserved class,
who found place in the bottom of the separate list,
prepared for that (respective) class, naturally will come
down and can come out of the seats available in the
ratio of the percentage prescribe for that (respective)
reserved class. To avoid this situation and in any case
to avoid the adverse impact on the number of seats
prescribed for reserved class after transferring
candidates of that class only into that list and so that
candidates in the bottom of the list also could not be
deprived of admission and so that candidates of reserves
class, selected on the basis of merit could not be
deprived of being consolidated in general seats. To
ensure it, this system will be applicable that after above
stated transfer, candidates at the bottom of list of their
respective reserved class, though being at the bottom of
the merit list of this list, shall be absorbed against 50%
3
seats, available for general category and they shall be
allotted colleges and subject available for the general
seats on the basis of choice in the order of merit in that
list. Thus, the list which will be prepared against 50%
seats, available for general category, candidates
transferred by above stated method from the list of
reserved class will be absorbed in that list only and they
will also be facilitated admission.”
As per the aforementioned circular, a Meritorious Reserved
Candidate (MRC) is treated as general merit candidate and is allotted a
seat in the general merit category; such MRC may instead choose to
take up a seat from amongst the seats earmarked for that particular
reserved category to which he belongs to gain admission in the college of
his preference; on doing so, the choice of seat in the general category left
by the MRC will go to a candidate of the reserved category.
4. It was contended before the Patna High Court by the
appellants that the seat which remained unfilled because of
migration/shifting of a MRC to the reserved category should be filled up
by the candidates from the general category list inasmuch as the MRC
virtually shifts himself to the reserved category. Per contra it was
contended by the contesting respondents that such seat should
continue to be filled up by the ousted candidates at the bottom of the
reserved category list, in view of the fact that the MRC continues to be a
4
general category candidate. By the impugned judgment, the Patna High
Court answered the reference in favour of the respondents as under:
“15. In view of the discussions above and what has
been held by Supreme Court in cases of Ramesh Ram
(supra) and Ritesh R. Sah (supra) we arrive at the
following conclusion(s) :-
(i) There is an obvious distinction between qualifying
through a common entrance test for securing admission
to medical courses in various institutions vis-a-vis a
common competitive examination held for filling up
vacancies in various services.
(ii) This distinction arises because all candidates receive, in
a case of common entrance test held for securing
admission in medical institutions, the same benefits of
securing admission in one of the medical institutions, in
a particular course, whereas in the case common
selection process adopted for filling up vacancies in
various services, there are variations, which accrue to
the successful candidates, because the services may
differ in terms of status and conditions of service
including pay scale, promotional avenues, etc.
Consequence of migration of an MRC to the concerned
reserved category shall be, therefore, different in case of
the admission to various medical institutions vis-a-vis
selection to various posts.
(iii) In case of admission to medical institutions, an MRC
can have in, for the purpose of allotment of institutions,
of his choice, the option of taking admission in a college,
where a seat in his category is reserved. Though
admitted against a reserved seat, for the purpose of
computation of percentage of reservation, he will be
deemed to have admitted as an open category candidate,
rather he remains an MRC. He cannot be treated to
5
have occupied a seat reserved for the category of
reservation he belongs to. Resultantly, this movement
will not lead to ouster of the reserved candidate at the
bottom on the list of that reserved category. While
his/her selection as reserved category candidate shall
remain intact, he/she will have to adjusted against
remaining seats, because of movement of an MRC
against reserved seats, only for the purpose of allotment
of seats.
(iv) In the case of filling up of posts based on common
competitive selection process in different services,
situation will be entirely different, when an MRC opts to
move to the reserved category, which he belongs to, for
getting a service/post of his choice. In such a situation,
the candidate, at the bottom of list of the concerned
category, will have to move out and the slot, in the
general merit list, will stand vacated, because of
migration of the MRC will have to be filled up from
general merit list. Otherwise, if the open seats are
allowed to be filled up by candidates of reserved
categories, it will result into extending the benefit of
reservation beyond fifty percent, which is
constitutionally impermissible.
16. The reference is answered accordingly.”
While deciding the reference as mentioned supra, the full
Bench of the Patna High Court has distinguished between two sets of
cases viz. (a) case of securing admission to medical courses in various
institutions through a common entrance test; and (b) case of filling up of
vacancies in various civil services through common competitive
examination.
6
5. In the matter on hand, we are concerned with securing
admission to medical courses through a common entrance test and the
procedure to be followed in case of a MRC and allotment of seat in
college.
6. It was submitted by Shri Shekhar Naphade and Shri
Subramonium Prasad, learned Senior Counsel, on behalf of the
appellants, that the reservation cap in admissions to medical colleges
cannot exceed 50% in any case. They argued that a MRC migrates to
the reserved category when he chooses a seat earmarked for the
reserved category. Resultantly, the seat vacated by MRC being a general
category seat must necessarily be filled up by general category
candidates.
For the respondents, Shri Prashant Bhushan, learned
Counsel, supporting the decision of the Patna High Court argued that
the MRC continues to be part of the general category even after opting
for a seat in the reserved category. He contended that the reserved
category candidate who is affected by the choice of the MRC must be
given a choice of seats in the general category. Ms. Meenakshi Arora,
learned Senior Counsel, submitted that by the process adopted, the 50%
reservation is not breached.
7
7. Often, in a competitive examination held for the purpose of
admission in technical and medical institutions etc. some candidates
belonging to reserved category/categories, qualify for the higher ranking
on the basis of their own merit and depending on their performance in
the common entrance test, are placed in the general merit list. Such
class of candidates belonging to reserved categories who qualify on their
own merit, to be placed in general merit list, are described, for the
purpose of convenience, as Meritorious Reserved Candidate (MRC). It is
by now well settled that a MRC who goes on to occupy a general
category seat is not counted against the quota reserved for a reserved
category candidates, but is treated as an open competition candidate or
general merit candidate. This Court in the case of Indra Sawnhey v.
Union of India, 1992 Supp (3) SCC 217 has observed thus:
“In this connection it is well to remember that the
reservations under Article 16 (4) do not operate like a
communal reservation. It may well happen that some
members belonging to, say, Scheduled Castes get selected
in the open competition field on the basis of their own
merit; they will not be counted against the quota reserved
for Scheduled Castes; they will be treated as open
competition candidates” (emphasis
supplied)
8
Even in service matters, the same principle is made applicable. The
aforementioned principle of Indra Sawnhey (supra) is followed for
admissions to seats in medical colleges, and the same was followed in
the case of R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.
However, the issue before us is more nuanced – whether MRC can opt
for a seat earmarked for reserved category? “If answer is yes” then since
MRC exercises the option of admission to the seats in different colleges
earmarked for reserved category candidates, should a less meritorious
reserved category candidate who is affected by such process be given
admission to the college left over by MRC consequently?
This would be better understood by a simplified example. Let
it be assumed that there are 100 seats available through one common
entrance examination to PG courses in various medical colleges across
the country. Of these, 50 are general category seats and the remaining
50 are reserved category seats. X, a reserved category candidate, is
assigned rank number 50 on account of his performance in the entrance
examination. Thus he is just above the cut-off for reserved category
candidates, and has got an open merit rank. Hence, X is a MRC;
however, X being in general category is not willing to accept the seat
available for general category at the time of his counselling. He wants
9
admission in another college of his preference which is incidentally
reserved for reserved category candidates, and a seat in the same is
available in the reserved category. Consequently, X chooses a seat
available in the college meant for reserved category candidate based on
his merit among the reserved category candidates. As he does so, one
seat in the general category list of 50 candidates remains unoccupied. In
that context, two questions arise for consideration:
i. Whether X – MRC can opt for a seat earmarked for reserved
category?
ii. If answer is yes; what happens to the 50th seat which was to be
allotted to X – MRC (i.e. 50th general merit candidate) had he opted
for a seat meant for the reserved category to which he belongs?
8. This court has repeatedly including the judgment in the case
of Indra Sawhney (supra), has concluded that the aggregate reservation
should not exceed 50%. Therefore, even when a MRC opts for a seat
reserved for reserved category candidates, caution has to be exercised to
maintain the reservation to 50%. So also it is not open for the
authorities to deny a MRC a seat in the college of his preference based
on his merit, if such seat is available at the relevant point of time and
the same is reserved for candidates of the reserved category to which the
10
MRC belongs. This is because there may be instances where a MRC
may not get a seat in the institution of his choice on the basis of his own
merit in the general merit. Under such circumstances, he may opt to be
treated notionally as a candidate belonging to the reserved category only
for the purpose of getting a seat in the college reserved for reserved
category students. If such MRC is to be placed in the reserved merit list
of his category, he would be ranking high and may get better choice of
institution or course. A MRC cannot be placed in a disadvantageous
position by not permitting him to be treated as reserved candidate, as
that would amount to making him suffer for his better performance in
the competitive examination.
In the case of Shri Ritesh R. Sah v. Dr. Y.L. Yamul, (1996)
3 SCC 253, this Court has had an occasion to deal with both the above
questions. This Court held that a MRC who has opted for a seat in the
college reserved for reserved category will not migrate/shift to reserved
category but should be treated as part of the general category only.
However, only for the purpose of getting better choice of seat in the
college, he may opt to take a seat in the college reserved for the reserved
category. This Court observed thus:
11
“17…In view of the legal position enunciated by this
Court in the aforesaid cases the conclusion is irresistible
that a student who is entitled to be admitted on the
basis of merit though belonging to a reserved category
cannot be considered to be admitted against seats
reserved for reserved category. But at the same time the
provisions should be so made that it will not work out to
the disadvantage of such candidate and he may not be
placed at a more disadvantageous position than the
other less meritorious reserved category candidates. The
aforesaid objective can be achieved if after finding out
the candidates from amongst the reserved category who
would otherwise come in the open merit list and then
asking their option for admission into the different
colleges which have been kept reserved for reserved
category and thereafter the cases of less meritorious
reserved category candidates should be considered and
they will be allotted seats in whichever colleges the seats
should be available. In other words, while a reserved
category candidate entitled to admission on the basis of
his merit will have the option of taking admission to the
colleges where a specified number of seats have been
kept reserved for reserved category but while computing
the percentage of reservation he will be deemed to have
been admitted as a open category candidate and not as
a reserved category candidate.”
Right from the year 1996, the law is well settled that the provisions
should be so made that they will not work out to the disadvantage of a
MRC and he would not be placed at a more disadvantageous position
than the less meritorious reserved category candidates. Aforementioned
objective can be achieved if, after finding out the candidates from
amongst the reserved category who would otherwise come in the open
12
merit list and then asking their option for admission into the different
colleges which have been kept reserved for reserved category, the cases
of less meritorious reserved category candidates are considered.
In other words, the reserved category candidate is entitled to
admission on the basis of his merit, and he will have the option of
taking admission to the colleges where a specified number of seats are
kept reserved for the reserved category. However, while computing the
percentage of reservation, he will be deemed to have been admitted as
an open category candidate and not as a reserved category candidate.
9. Shri Shekhar Naphade and Shri Subramonium Prasad,
learned Senior Counsel on behalf of the appellants, relying upon the
Constitution Bench judgment in the case of Union of India v. Ramesh
Ram and Others, (2010) 7 SCC 234, contended that a seat left over in
the general category by a MRC because of his option of a seat in the
reserved category, should be filled up by a general merit candidate and
not by a reserved category candidate. They relied upon paragraph 39 of
the said judgment, which reads as follows:
“39. A significant aspect which needs to be discussed is
that the aggregate reservation should not exceed 50% of
all the available vacancies, in accordance with the
decision of this Court in Indra Sawhney v. Union of
13
India, (1992) Supp 3 SCC 217. If the MRC candidates
are adjusted against the Reserved Category vacancies
with respect to their higher preferences and the seats
vacated by them in the General Category are further
allotted to other Reserved Category candidates, the
aggregate reservation could possibly exceed 50 % of all
of the available posts.”
Before commenting on the judgment of the Constitution
Bench in Ramesh Ram (supra), it would be beneficial if the facts and
contexts referred thereto are looked into.
In the said matter, the Constitutional validity of Sub-Rules (2)
to (5) of Rule 16 of the Civil Services Examination Rules, for the civil
services examinations from 2005 to 2007, was involved. Rule 16(2) was
as follows,
“16(2) While making service allocation, the candidates
belonging to the Scheduled Castes, the Scheduled Tribes
or Other Backward Classes recommended against
unreserved vacancies may be adjusted against reserved
vacancies by the Govt. if by this process they get a
service of higher choice in the order of their preference.”
This Court, after examining the rival contentions on record, held that a
MRC opting for a reserved category seat should be treated as a reserved
category candidate, which means that he is deemed to have
migrated/shifted from the general category to the reserved category to
14
which he belongs once and for all, and that the vacant general category
seat left by a MRC should be filled by a general category candidate. It
arrived at the following findings:
“50. We sum up our answers-:
i) MRC candidates who avail the benefit of Rule 16 (2)
and adjusted in the reserved category should be counted
as part of the reserved pool for the purpose of
computing the aggregate reservation quotas. The seats
vacated by MRC candidates in the General Pool will be
offered to General category candidates.
ii) By operation of Rule 16 (2), the reserved status of an
MRC candidate is protected so that his/ her better
performance does not deny him of the chance to be
allotted to a more preferred service.
iii) The amended Rule 16 (2) only seeks to recognize the
inter se merit between two classes of candidates i.e. a)
meritorious reserved category candidates b) relatively
lower ranked reserved category candidates, for the
purpose of allocation to the various Civil Services with
due regard for the preferences indicated by them.
iv) The reserved category candidates "belonging to OBC,
SC/ ST categories" who are selected on merit and placed
in the list of General/Unreserved category candidates
can choose to migrate to the respective reserved
category at the time of allocation of services. Such
migration as envisaged by Rule 16 (2) is not inconsistent
with Rule 16 (1) or Articles 14, 16 (4) and 335 of the
Constitution.”
In Ramesh Ram (supra), this Court has seemingly and
intrinsically arrived at a diametrically opposite decision from Ritesh R.
15
Sah (supra). Indeed, the aggregate reservation should not exceed 50%
of the available vacancies. While we are undoubtedly bound by Ramesh
Ram (supra), the very judgment justified why it is so different from
Ritesh R. Sah (supra). It categorically held that there is a distinction
between selection and admission of PG candidates as in Ritesh R. Sah
(supra), and selection and appointment of UPSC candidates as in
Ramesh Ram (supra). While in postgraduate admissions, the results
will grant all the candidates the same benefit irrespective of rank (i.e.,
admission in medical colleges), the results in UPSC selections give
varying benefits to varying rank-holders, as the allocation of services is
based on rank. This Court thus held that in case of UPSC selections, the
general category seat vacated by a MRC to occupy a reserved category
seat, must be filled up by candidates from the general category. It also
held that such MRC should be counted in the reserved category (and not
in the general category, as Ritesh R.Sah (supra) did) in order to prevent
the reservation cap from exceeding 50%. It would be beneficial to look
into Paragraphs 31, 32, 66 and 67 of Ramesh Ram (supra) for the
purpose of distinguishing the said matter from the matter on hand and
they read as follows:
16
“31. The respondents have also placed strong reliance
on this Court's decision in Ritesh R. Sah v.
Dr.Y.L.Yamul (1996) 3 SCC 253). The question in that
case was whether a Reserved Category candidate who is
entitled to be selected for admission in open competition
on the basis of his/her own merit should be counted
against the quota meant for the Reserved Category or
should he be treated as a general candidate. The Court
reached the conclusion that when a candidate is
admitted to an educational institution on his own merit,
then such admission is not to be counted against the
quota reserved for Scheduled Castes or any other
Reserved Category. However, it is pertinent to note that
this decision was given in the context of admissions to
medical colleges …”
“32. There is an obvious distinction between qualifying
through an entrance test for securing admission in a
medical college and qualifying in the UPSC
examinations since the latter examination is conducted
for filling up vacancies in the various civil services. In
the former case, all the successful candidates receive
the same benefit of securing admission in an
educational institution. However, in the latter case there
are variations in the benefits that accrue to successful
candidates because they are also competing amongst
themselves to secure the service of their choice. For
example, most candidates opt for at least one of the first
three services [i.e. Indian Administrative Service (IAS),
Indian Foreign Service (IFS) and Indian Police Service
(IPS)] when they are asked for preferences. A majority of
the candidates prefer IAS as the first option. In this
respect, a Reserved Category candidate who has
qualified as part of the general list should not be
disadvantaged by being assigned to a lower service
against the vacancies in the General Category especially
because if he had availed the benefit of his Reserved
Category status, he would have got a service of a higher
preference. With the obvious intention of preventing
such an anomaly, Rule 16 (2) provides that an MRC
17
candidate is at liberty to choose between the general
quota or the respective Reserved Category quota.”
“66. The decision in Anurag Patel in turn referred to the
earlier decision in Ritesh R. Sah v. Dr. Y.L. Yamul.
However, we have already distinguished the judgment in
Ritesh R. Sah. That decision was given in relation to
reservation for admission to post graduate medical
courses and the same cannot be readily applied in the
present circumstances where we are dealing with the
examinations conducted by UPSC. The ultimate aim of
civil services aspirants is to qualify for the most coveted
services and each of the services have quotas for
reserved classes, the benefits of which are availed by
MRC candidates for preferred service. As highlighted
earlier, the benefit accrued by different candidates who
secure admission in a particular educational institution
is of a homogeneous nature. However, the benefits
accruing from successfully qualifying in UPSC
examination are of a varying nature since some services
are coveted more than others.
67. The order of CAT is valid to the extent that it relied
on the ratio propounded by this Court in Anurag Patel v.
U.P. Public Service Commission. Even though that
decision had in turn relied on the verdict of this Court in
Ritesh R. Sah v. Dr. T.L. Yamul, the latter case is
distinguishable from the present case with respect to
the facts in issue. However, we cannot approve of the
conclusions arrived at in the Central Administrative
Tribunal order as it failed to take note of the unique
characteristics of UPSC examinations.”
(Emphasis supplied)
Hence it is amply clear that, the Constitution Bench makes a
distinction between two types of selections, i.e., selection to medical
colleges through a common entrance test, and selection to posts in
services through the UPSC examination.
18
It is also pertinent to note that the Constitution Bench has
virtually but impliedly approved Ritesh R. Sah (supra) insofar as the
procedure to be adopted in cases of admissions to medical colleges
through a common competitive examination is concerned. In view of the
above, the principles laid down in Ramesh Ram (supra) may not be
applicable to the facts of this case, inasmuch as this is a case pertaining
to admission in medical colleges and whereas Ramesh Ram (supra)
pertains to selections to the posts for services through the UPSC
examination.
This Court, in the case of Alok Kumar Pandit v. State of
Assam & Ors. 2012 (13) SCC 516, has reiterated that the dictum laid
down in Ramesh Ram (supra) is applicable only to admission to various
services in the UPSC.
10. Ritesh R. Sah (supra) was subsequently followed in Samta
Aandolan Samiti v. Union of India, (2014) 14 SCC 745 wherein this
Court observed thus:
“22. No doubt, while doing so, the Court in Ramesh Ram
case was of the opinion that such meritorious reserved
candidates (MRC) who avail the benefit of Rule 16(2) of
the Civil Services Examination Rules (which permitted
such inter-se transfer) and are eventually adjustment in
the reserved category, they should be counted part of
reserved category for the purpose of computing
19
aggregate reservation quota. However, it was
categorically stated that this proposition applies when
there is an appointment to a service under the State and
categorically excluded the cases of admission in
educational institutions. In so far as admission in
educational institutions is concerned, such a MRC was
to continue to be treated as belonging to general
category, which position he attained because of his
initial merit. The Court noted that this was so held in
Ritesh R. Sah v. Dr. Y.L. Yamul (1996) 3 SCC 253.”
… … …
“24. Since, we are concerned with the admission to
medical course, aforesaid judgment squarely applies to
the present case. Thus we find that neither upper limit
of 50% reservation is breached, nor any rights of the
Petitioners are violative or the action of the Respondents
have been to their prejudice in any manner. Thus, we do
not find any merit in the present petition, which is
accordingly dismissed. No costs.”
(Emphasis supplied).
11. Shri Naphade and Shri Prasad also sought to rely upon the
decision of a Coordinate bench of this Court in State of Bihar v. M.
Neethi Chandra, (1996) 6 SCC 36, wherein this Court observed as
follows:
“10. Let us take a situation in which in a particular
reserved category there are x number of seats but the
candidates qualifying according to criteria fixed for that
category are X+5 with the best among them also
qualifying on merit as general candidates. According to
the arrangement made by circular No. 20, the first
candidate gets a choice along with the general category
candidate but being not high enough in the list, gets a
20
choice lesser than what he could secure in the reserved
category to which he was entitled. The x number of
seats could then be filled up with the four qualifying
candidate being denied admission for want of seats. This
would have been harsh for the best candidate as well as
violative of Articles 14 and 16 of the Constitution. On
the other hand, if the direction of the High Court is
followed, the first x number of candidates get seats
according to merit against the reserved seats but the
remaining 5 will also have to be 'adjusted' against the
open seats of regular candidates. These 5 will be those
who are not qualified according to the general merit
criteria and so will necessarily displace 5 general
candidates who would be entitled to seats on merit.”
… … …
“12. In a particular year, the number of such candidates
may be much larger and thus the method evolved by the
High Court may create much hardship. The method will
also not be in tune with the principles of equality. Hence
the method evolved by the High Court will have to be
struck down.
13. At the same time, as pointed out above, all is not
well with the Government circular No. 20 as it operates
against the very candidates for whom the protective
discrimination is devised. The intention of the circular
No. 20 is to give full benefit of reservation to the
candidates of the reserved categories. However, to the
extent the meritorious among them are denied the
choice college and subject which they could secure
under the rule of reservation, the circular cannot be
sustained. The circular, therefore, can be given effect
only if the reserved category candidate qualifying on
merit with general candidates consents to being
considered as a general candidate on merit-cum-choice
basis for allotment of college/institution and subject.”
(emphasis supplied)
21
M. Neethi Chandra (supra) was upheld by a three-Judge
bench of this Court in Dr. Anil Kumar v. State of Bihar, (1998) 9 SCC
405, but to the extent that it held that a MRC should not be forced to
choose seat from the general category. However, it needs to be
mentioned that M. Neethi Chandra (supra) may not be applicable to the
facts of this case. In the case of M. Neethi Chandra (supra), this Court
was concerned with a different circular altogether, i.e., Circular No.
11/K1 -1022/91-K20 (“Circular No. 20”), issued by the Government of
Bihar, Department of Personnel and Administrative Reforms on
07.02.1992 on the subject of “provision for reservation for nominating
(admission) of Scheduled Caste/Tribes/Backward class/Extremely
Backward Class/Female into the Professional Training Institutes.” That
circular was challenged on the basis that MRCs were not allowed to
choose the seats kept reserved for the reserved category. Paragraph 6 of
that circular reads as follows:
“6. As there is provision in direct appointment to the
effect that the candidates belonging to reserved classes,
who are selected on the basis of merit, would not be
adjusted against reserved seats, similarly maintaining
the same arrangement here also the candidates selected
on the basis of merit for admission into professional
training institutes would not be adjusted against the
reserved quota for the candidates of reserved classes.”
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The judgment of the High Court that was set aside by this
Court in M. Neethi Chandra (supra) had devised a completely different
way of conducting PG admissions, which was not at all akin to the
present case. The High Court in the said matter has sought to fill up
reserved category posts first and adjust any reserved category
candidates not allotted a seat in the general category. This Court in M.
Neethi Chandra (supra) summarized the method of allotment of seats
adopted by the High Court thus,
“To remove the anomalies, the High Court devised a
method of allotment of seats by which the reserved seats
are offered first (i.e. before the general seats are filled) to
the candidates of the reserved category on merit, and
after all the reserved seats are so filled up, all other
qualifying candidates of the reserved category are
"adjusted" against open seats in the general category
along with the general merit candidates and offered
seats on merit-cum- choice basis (see para 11 of the
judgment).”
12. In the matter on hand, it is not the case that any other
candidate of the reserved category, other than the candidate taking up
the MRC’s general category place in choosing general category seat, will
be adjusted. Moreover this issue is not under challenge in the present
case, as both sides are admittedly not contesting the right of a MRC to
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choose a seat earmarked for the reserved category. On the other hand,
it is fairly submitted by Shri Naphade and Shri Prasad that a MRC has
got a right to choose a seat earmarked for reserved category/categories.
However, they are only worried that the aggregate reservation should not
exceed 50%.
It follows from the cases cited above that the 50% reservation
rule should not be breached under any circumstances. As mentioned
supra, a MRC in medical admissions has more marks than the last
general merit candidate, hence he shall be treated as a general category
candidate. Only a choice of college seats in the reserved category is open
to him. In this manner, the number of seats in each category remains
constant and the upper limit of 50% reservation is not breached.
13. It is clear from Ritesh R. Sah (supra), that in the case of
admission to postgraduate medical institutions, a MRC who chooses to
avail of the option of admission to a college with seats kept for the
reserved category is deemed to have been admitted as an open category
candidate. He continues to be open category candidate. There is no
migration into the reserved category even if a MRC opts for a seat
earmarked for reserved category candidates. The lowest-ranking
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candidates who qualified in the reserved category, cannot hence have
option for colleges/seats in reserved category on account of the MRC’s
choice, may be adjusted against the choices of college seats then
available in the general category left over by MRC. However such
reserved category candidates continue in reserved category, except for
such option. Thus, by treating a MRC as a general category candidate,
the number of reserved seats remains the same, and reservations do not
exceed 50%. This is also consistent with the principles of equity. In view
of the above, we could not find any reason to disagree with the
conclusions reached by the full Bench of the High Court.
14. In light of the cases discussed hereinabove, both questions
are answered as follows:
i) A MRC can opt for a seat earmarked for the reserved category,
so as to not disadvantage him against less meritorious reserved
category candidates. Such MRC shall be treated as part of the
general category only.
ii) Due to the MRC’s choice, one reserved category seat is
occupied, and one seat among the choices available to general
category candidates remains unoccupied. Consequently, one
25
lesser-ranked reserved category candidate who had choices
among the reserved category is affected as he does not get any
choice anymore.
To remedy the situation i.e. to provide the affected candidate a
remedy, the 50th seat which would have been allotted to X –
MRC, had he not opted for a seat meant for the reserved
category to which he belongs, shall now be filled up by that
candidate in the reserved category list who stands to lose out by
the choice of the MRC.
This leaves the percentage of reservation at 50% undisturbed.
15. We reiterate that, 50% reservation rule should not be
breached under any circumstance.
16. The High Court has succinctly dealt with the issue as well as
the case law on the point. It has rightly held that Ritesh R. Sah (supra)
governs admissions in medical institutions. We see no reason to
interfere.
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17. Appeals are accordingly dismissed. No order as to costs.
.................................................J.
(ARUN MISHRA)
.................................................J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi;
January 11, 2018
