Archana vs The Government Medical College, Nagpur and Others

V.A. Mohta, J.—The petitioner Ku. Archana is a minor daughter of Sudhakar Mendulkar, a domicile in the State of Maharstra, serving as a flight Lieutenant in the Indian Air Force. The petitioner is a permanent resident of Wani, district Yavaatmal (M.S.) and we are informed that she was also born there. By the very nature of the service, the father of the petitioner has been posted form time TO TIME AT DIFFERNET PLACES ALL OVER India. He was posted at Bangalore for several years and the petitioner who lives with her parents passed her XII Standard Higher Secondary School Certificate by the Central Board of Secondary Education New Delhi From Kendriya vidyalaya, Bangalore. These examinations known as Indian School Certificate Examinations are equivalent to the 12th Standard Examination conducted by the Maharashtra State Board of Secondary and Higher Secondary Education. In the said examination, which is conducted on all India basis, she had secured in Science subjects 260 marks out of 300 (88%) in the very first attempt. She applied for admission to the M.B.B.S. Course in the Government Medical College at nagpur along with the Domicile Certificate of her father in the eight seats reserved for sons and daughters of servicement and ex-servicement under Cl. B(3) of the Medical colleges of the Government of Maharashtra Rules for Admission (M.B.B.S) 1986-87 (the ''Rules''), framed under Government Resolution dt. 12th June, 1986. She was entitled to the admission on merits (being at Serial No. 4) but had been left out of consideration only on the ground that she was not eligible in view of Cl. C(3) (ii) of the Rules, having not passed her qualifying examination of 12th standard Indian School Certificate examination "from an institution located in Maharashtra State". Her contention firstly is that R. C(3)(ii) does not apply to this reserved category in view of Cl. B(5) of the Rules, and secondly that if construction put by the respondents on the eligibility clause is held to be correct, that part of the Rule is violative of Art. 14 of the Constitution, being arbitrary and discriminatory having no nexus to the object of the Rule viz. To select meritorious candidate from agmongst the sons and daughters of servicemen of Maharashtra domicile.

The Rule have been framed, as the Government resolution itself indicates, against the backdrop of situation arising out of necessity to implement the decision in the case of Nidamarti Maheshkumar Vs. State of Maharashtra and Others, by which regulation of admission on the basis of University jursidiction in the State has been struck down. Rules also specify that implementation of decision in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, regarding holding of All India Entrance Test has been deferred till acamedic year 1987. The ratio of these two decisions is that there cannot be 100% reservation of seats on regional basis.

By the Rules, maximum 70% regional reservation preference on University jurisdiction basis (after deducting other kinds of reserved seats) has been contemplated. Cl. B deals with "REservations". Sub-cl. (1) of Cl. B refers to Backward Class etc., sub. Cl. (2) to Central Government, sub-cl. (3) to sons and daughters of servicement and exservicemen, sub-cl. (4) to micellaneous other reservations including son-daughter of Non-resident Indians of Maharashtra origin and sub-cl. (5) to Regional Reservation. Cl. B(3), with which we are concerned, reads thus:

"(3) Reservation for sons and daughters of servicemen and ex-servicemen. - 5 per cent seats of the intake capacity of the college limited to five shall be reserved for the children of servicemen as well as ex-servicemen who are domiciles of Maharashtra. The seats so reserved are inclusive of merit.

The total number of seats in the Government Medical college, Nagpur and Indira Gandhi Medical College, Nagpur 260(200+60) and the number of reserved seats under the above head is 8 (5+3) respectively 20 per cent of the above reserved seat are allocated to wards of active Defence personnel transferred to the Maharashtra area, for whom the conditions regarding domicile do not apply. Cl. B(5) reads thus:

Regional Reservation.-Subject to the exception mentioned in R. C(6)(iv) below, 70 per cent of open seats, after excluding validly reserved seats, available in Government Medical Colleges situated within the jurisdiction of any University in Maharashtra, shall be reserved for the candidates who are eligible as per rule C below and have passed the requisite qualifying examination from the School/college sitated within the jursidiction of the same University.

(5) The remainaing 30 per cent open seats shall be filled in by the candidates who are eligible as above and have passed the requisite qualifying examination from jSchools/College situted within the area of jurisdiction of other Universities in Maharashtra."

Shri Kherdekar, the learned counsel for the petitioner, contended that having regard to the object of the Rules, its background, the language used in Cl. B(5) and the ratio of various Supreme Court decisions on the validity of various reservation on region/residence basis, the requirement of passing Indian School Certificate Examination "from an institution located in Maharashtra State'' is not intended to be applied to the candidates covered by R. B(3). It seems to us that the contention is well-founded. Course and the examination of the Indian School Certificate Examination is common all over India. Serviceman has no control on his posting which can be anywhere including Maharashtra. Rule of denial of admission to a fortuitous circumstnce of his being not posted at the time of his ward studying in 12th Standard within the State of Maharashtra cannot have any nexus to the object of the Rule. Mere chance cannot be the valid disqualifying factor. Such a Rule will not only be arbitrary and unreasonable but will permit discrimination between tow classes of servicemen of Maharashtra domicile actually posted at material time (I) in Maharashtra and (ii) outside Maharashtra. This classification will be clearly invidious having no nexus whatsoever to the object sought to be achieved. Supreme Court has repeatedly held against denial of admissions only on the basis of residence and/or region. Canons of interpretation mandates that interpretation which leads to unconstitutionality has to be avoided, and haaarmonious construction to be preferred, if possible. Thus the Rule will have to be interpreted keeping the above principles in view. The Rule is not clerly worded and does j present some difficulty in construing it. It is not as if that Cl. C applies univesally and without exception to all admissions under the rule. Take for example cases covered by R. B(4)(iii) -Reservation for son or daughter of Non-resident Indians of Maharashtra origin. Even 20 per cent seats out of category B(3) are reserved for Defence Personnel are transfer to the Maharstra Region. It is in this light to andbackground that R. B95) is significant.It means that all part of Cl C (5) has to be read. The terminilogy after excluding validy reserved seats used in R. B (5) is significan . It means that ll partas of Cl C do not universally apply to validy reserved seats under Cl B. This is not to suggest that no part of Cl c applies to nay varieties of reservations mentioned inCl B, ?All will depend upon a specie of reservation ands it interndments. Construed in that light it seems to us ataht the last part R. C (3) (ii) readings form am insttituion located in maharstra stae is not intended to be applied to candidate covered Cl B(3).

It may be mentioned old Rules of 1984 fell for considreation in the case of Kumari Suneeta Ramchandra Koyalamudy Vs. State of Maharashtra and Another, . Doubt was expressed bty the supreme Court about the validity of similarly worded R. C(5) thoguh the point was not decided.

It is thus clear that the petitioner is duly qualifed and eligible for being considred for admission to the M.B.B.S. Course under the Rules. In the selected candidates, she comes at Serial No.4 wihich means sshe was entitled to admission on merits. The course has scommenced. Persons below her from of that category are duly admitted on the basis of wrong but find bona interpretation of the Ruels . Under the circumstances, disturbing them now will be unfair.

To conclude : Petition allowed . The petitionr is directed to be admitted tothe First M.B.B.S Course by the respondents, if necessary by creating supernumerary posts. Rule accordingly. No orders as to costs.

Petition allowed.