State of Assam and Another vs Jibanjyoti Baishya and Others

A.K. Patnaik, J.—These appeals are directed against the judgments and orders of the learned Single Judge in Writ Petition (Civil) Nos. 4267/2K, 4669/2K, 4534/2K and 4358/2K directing the appellants to admit the respondents in MBBS/BDS Course in the Medical College of Assam/Regional Dental College, Guwahati, for the academic session 1999-2000 depending upon the availability of seats.

The relevant facts for the purpose of disposal of these appeals briefly are that admissions of students to MBBS/BDS Course in the Medical Colleges of Assam/Regional Dental College, Guwahati are regulated by a set of Executive Instructions made by the Government of Assam by notification dated 16.8.1996 called the Medical Colleges of Assam And Regional Dental College (Regulation of Admission of Under Graduate Students) Rules, 1996, (hereinafter referred to as "the Rules, 1996"). A common entrance examination was held in accordance with the Rules, 1996, for candidates of the State of Assam. The respondents in these write appeals took the said common entrance examination and were placed in the waiting list of candidates recommended by the Selection Board against serial Nos. 3, 4, 5, 7, 8 and 9. Some candidates selected for admission did not turn up for admission, and as a result some of the seats fell vacant. In the said vacant seats, respondents have been denied admission and the State Government in relaxation of the Rules has allotted eight vacant seats in the MBBS Course in three different Medical Colleges of Assam to the State of Aurnachal Pradesh. The respondents filed Writ Petition (Civil) Nos. 4267/2K, 4358/2K. 4534/2K and 4669/2K under Article 226 of the Constitution of India, and by impugned judgments and orders, the learned Single Judge has directed admission of the respondents in the MBBS/BDS course for the academic session 1999-2000 depending upon the availability of seats. The appellants filed Review Application No. 101/2K against the judgment in Writ Petition (Civil) No. 4358/2K, but the same has been dismissed by the learned Single Judge. Aggrieved, the appellants have filed these appeals.

Mr. BC Das, learned Additional Senior Government Advocate, Assam, appearing for the appellants, submitted that the wait-listed candidates recommended by the Selection Beard are admitted to vacant seats under the proviso to rule 5 and the proviso to rule 6 of the Rules, 1996. But the Government has the power to relax the provisions of the said provisos to rules 5 and 6 under rule 9 of the Rules, 1996, if the Government is of the opinion that it is necessary or expedient so to do in exercise of such power under rule 9, the Government of Assam has considered it necessary or expedient to relax the provisions of the said two provisos to rules 5 and 6 of the Rules, 1996, and allotted the eight vacant seats in the MBBS Course for the session 1999-2000 to the State of Arunachal Pradesh. Mr. Das further submitted that the said decision to relax the provisions of the two provisos to rules 5 and 6 of the Rules, 1996 was taken by the State Cabinet an the reason given in the Cabinet Memorandum was that the relaxation was necessary to maintain friendly relationship with the neighboring States from whom requests have been received for allotment of more seats. According to Mr. Das, such relaxation of the two provisos to rules 5 and 6 was not inconsistent with the other provisions of the Rules, 1996. Mr. Das contended that the aforesaid relaxation by the State Government has not been challenged in the writ petitions. In support of his submission, Mr. Das relied on the decisions of the Supreme Court in Sandeep Kumar Sharma Vs. State of Punjab and others, and Ashok Kumar Uppal and Others Vs. State of Jammu & Kashmir and Others, wherein the Supreme Court has discussed at length the power of relaxation of the Government under the Recruitment Rules.

In reply, Mr. GN Sahewalla, learned counsel for the respondents in Writ Appeal Nos. 433/2K, 461/2K and 463/2K, and Mr. AK Phukan, assisted by Mr. J. Roy, learned counsel for the respondent in Writ Appeal No. 428/2K, contended that under the guise of relaxation, the Government cannot amend the provisions of the Rules. They pointed out that under rule 5(a) of the Rules, 1996, as amended by notification dated 27.5.1999, 15 MBBS seats have been reserved for the North Eastern Council for distribution amongst the North Eastern Stated except Assam. Thus, 15 MBBS seats are already reserved for neighboring North Eastern Stated including the State of Arunachal Pradesh. By allotting 8 more seats to the State of Arunachal Pradesh in addition to the said 15 MBBS seats reserved for North Eastern States, the Government has really amended the provisions of the Rules, 1996, in the guise of relaxation of the Rules. Mr. Sahewalla cited the judgment of a Division Bench of this court in State of Assam and Others Vs. Rajeev Dey and Others, etc. etc., wherein it has been held that the Government cannot amend any provision of the 992 Rules relating to admission to 1st Year MBBS/BDS Course in the Medical Colleges of Assam and the Regional Dental College, Guwahati in the guise of relaxation under rule 10 of the said 1992 Rules. Mr. Sahewalla further argued that in any case power of relaxation of the Government under rule 9 of the Rules, 1996, has to be exercised consistent with right to equality under Article 14 of the Constitution and cannot be unfair and discriminatory towards the candidates seeking admission into the MBBS and Dental Courses in the Medical Colleges of Assam and the Regional Dental College, Guwahati. He referred to paragraph-7 of the said judgment of the Division Bench of this court in State of Assam v. Rajeev Dey in support of this contention. Mr. Sahewalla also relied on the Division Bench judgment of this court in State of Assam v. Jibeswar Barthakur (1999) 1 GLR 363 , in which the decision of the Division Bench in the case of State of Assam v. Rajeev Dey (supra) was taken note of, and it was held that want of candidates from amongst sons/daughters/brothers/ sisters of the Martyrs of Assam Movement could not be a ground for relaxation under rule 9 of the Rules, 1996, because such relaxation if granted would result in denying more meritorious candidates of general category placed in the waiting list for admission to MBBS/BDS Course. Mr. Sahewalla also cited the decisions of the Supreme Court in Sharwan Kumar and etc. Vs. Director General of Health Services and another, Saurabh Mathur v. DG of Health Services and U.P. Jal Nigam and Others Vs. Narinder Kumar Agarwal, in support of his contention that merit of the candidates can be the only criterion for allotting the vacant seats and that the power of relaxation cannot be exercised in a manner which disregards the merit of the candidates. Finally, Mr. Sahewalla stated that against the allotment of 8 seats to the State of Arunachal Pradesh by the State Government for admission to MBBS Course in the Medical Colleges of Assam, no candidate has yet been recommended by the State of Arunachal Pradesh.

It is difficult to accept the submission of Mr. BC Das, learned Addl. Senior Government Advocate, Assam, appearing for the appellants, that the learnes Single Judge should not have granted relief to the respondents as the relaxation and the order of allotment of 8 seats to the State of Arunachal Pradesh by the Government of Assam had not been challenged in the writ petitions. It is not disputed by Mr. Das that the order of relaxation and the consequent allotment of 8 seats to the State of Arunachal Pradesh had not been notified by any public notice. As a result, the respondents had no knowledge of the said orders of relaxation and allotment of 8 seats to the State of Arunachal Pradesh and, therefore, were not in a position to challenge the same in the writ petitions before the learned Single Judge. It was only the appellants who brought to the notice of the learned Single Judge after filing of the writ petitions that the orders of relaxation and allotment of 8 seats to the State of Arunachal Pradesh had been passed by the State Government. Moreover, the respondents, who are all students seeking admission into MBBS/BDS Course, are only interested in admission to the said Course in accordance with their position in the waiting list prepared on the basis of the common entrance examination, and when they make a grievance before the court in a petition under Article 226 of the Constitution that they have not been given admission in accordance with the Rules, their writ petition cannot be thrown out by the court on a hyper-technical ground that they have not challenged the order of relaxation and the consequent order of allotment of 8 seats to the State of Arunachal Pradesh. The questions which remain to be decided in these writ appeals therefore are as to whether the relaxation and allotment of 8 seats to the State of Arunachal Pradesh for admission into MBBS Course for the session 1999-2000 could be made in accordance with the Rules, 1996, and as to whether such relaxation and allotment of 8 seats to the State of Arunachal Pradesh were arbitrary and violative of Article 14 of the Constitution. Though several decisions of the Supreme Court have been cited by Mr. BC Das, learned State Counsel, on the power of the Government to relax the Rules, the said decisions are under the relevant Service Rules and do not relate to admission into MBBS/BDS Course. Moreover, the relaxation and allotment of 8 seats to the State of Arunachal Pradesh have to be considered in the context of the scheme of the Rules, 1996.

Rules 2(a), 5 ,6 and 9 of the Rules, 1996 as amended by notification dated 27.5.1999, and which were in force at the time of selection and admission into the MBBS/BDS Course in the Medical College of Assam and the Regional Dental College, Guwahati, for the academic session 1999-2000, are to the following effect :

"2. DEFINITIONS : In these rules, unless the context otherwise requires :-

(a) ''Available seats'' means the seats available for admission as per the Medical Council of India norms excluding the seats allotted for the categories of candidates mentioned in Rule 5.

EXEMPTION FROM COMMON ENTRANCE EXAMINATION :

The following categories of candidates are exempted from appearing in the Common Entrance Examination :

(a) 15 MBBS seats shall be reserved for the North Eastern Council for distribution among the North Eastern Stales except Assam.

(b) Candidates selected on the basis of the All India Entrance Examination conducted by CBSE for 15% reserved seats.

(c) Candidates recommended by Govt., of the India under Central Govt. Pool against 15 reserved seats.

(d) Candidates securing rank within first ten position in the HSSLC (Science) Examination of the Assam Higher Secondary Education Council having Physics, Chemistry and Biology with not less than 75% marks in aggregate excluding the Additional subject in the year in which they seek admission. Such candidates may apply for direct admission within 10 days of publication of their qualifying examination results to the Director of Medical Education, Assam :

Provided that any seat under the aforesaid categories from (a) to (d) which is not filled up for want of candidate shall be filled from amongst the candidate in the waiting list for general/SC/ST categories only.

RESERVATION OF SEATS :

(1) Available seats shall be reserved for the following categories of 2candidates of the State of Assam :

(a) Scheduled Caste : 7% of total available seats in MBBS & BDS Course each.

(b) Scheduled Tribes (Plain) : 10% -do-

(c) Scheduled Tribes (Hills) : 5% -do-

(d)

Other Backward Class including More Other Backward Classes

: 15% -do-

(e)

Sons and daugthers, dependent brother and sister of ex-serviceman and serving Defence personnel from Assam only

: 3 seats in MBBS & 1 seat in BDS

(f)

Sons/daughters, brothers, sisters and grandson/grand daughter of Freedom fighter of the State

: 2 seats in MBBS only

(g)

Sons /daughters/ brothers/sisters of the Martyrs of Assam Movement

: 2 seats in MBBS & 1 seats in BDS

(h)

Children of Tea garden, ex-Tea Garden Comminu ties/Tribes

:

2 seats in each of three Medical College for MBBS and 1 seat in BDS.

(i)

Socially & Education Backward persons ordinarily residing in areas covered by the Assam State Char Areas Development Authority and not entitled to any other forms of reservation.

: 2 Seats in MBBS only

(j)

Sons/daughters/ brothers/sisters of person killed in extremist violence in Assam

: 2 seats in MBBS & 1 seats in BDS.

(k)

Reservation of maximum 3% of the seats of MBBS for the people with disability, subject to the fulfillment of provisions and terms and conditions as laid down in the person with Disabilities (Equal Opportunities, Protection of Right and Full Participation Act, 1995 (Central Act of 1996)

(l)

One MBBS seat is reserved for the Students of Moran Community of Assam

: Provided further that if any of the seats mentioned in this rule remaining unfilled for want of candidate, such seats shall be filled up by candidate of the general category whose names appear in the waiting list recommended by the Selection Board.

POWER TO RELAX :

Where the Government is of the opinion that it is necessary or expedient so to do it may, by order, not inconsistent with the provisions of these rules and for reasons to be recorded in writing, relax any of the provisions of these rules."

The general scheme of the aforesaid provisions of the Rules, 1996, is that out of the total seats for admission into the MBBS/BDS Course in the Medical Colleges of Assam/Regional Dental College, Guwahati, some seats are allotted for categories of candidates mentioned in rule 5, namely, candidates belonging to North Eastern States, Candidates selected on the basis of All India Entrance Examination conducted by CBSE, candidates recommended by Government of India under Central Government Pool, and candidates securing rank within first ten position in the HSSLC (Science) Examination of the Assam Higher Secondary Education Council. All other seats which are not allotted to the aforesaid categories of candidates mentioned in rule 5 are "available seats" meant for admission of different categories of candidates of the State of Assam including the reserved categories of candidates of the State of Assam mentioned in rule 6(1).

It will further appear from the scheme of the Rules, 1.996, that while the categories of candidates mentioned in rule 5 are exempted from common entrance examination, categories of candidates of the State of Assam amongst whom the available seats are to be distributed are not exempted from common entrance examination. The consequence is that only candidates of the State of Assam are to compete in a common entrance examination for the available seats and they will be admitted to the MBBS/BDS Course, as the case may be, on the basis of their position in the merit list for general or reserved seats in the available seats. But the categories of candidates mentioned in rule 5 are not required to take the common entrance examination and their merit vis-a-vis different categories of candidates of the State of Assam competing for the available seats in the common entrance examination is not determined. This is not to say that the merit of the categories of candidates mentioned in rule 5 is not relevant at all for the purpose of admission to MBBS/BDS Course in the Medical College of Assam/Regional Dental College, Guwahati. The provisions in rule 5(b) and (d), on the other hand, show that candidates are selected on the basis of All India Entrance Examination conducted by the CBSE or on the basis of their rank within first ten position in the HSSLC (Science) Examination of Assam Higher Secondary Education Council. The candidates mentioned in rule 5(a) and (c) are also to be candidates selected on the basis of their merit and recommended by the North Eastern Council or the Government of India, as the case may be, cannot be candidates arbitrarily chosen by the North Eastern Council or the Government of India without considering their merit. But the merit of different categories of candidates mentioned in rule 5 and merit of the different categories of candidates of the State of Assam competing for the available seats through a common entrance examination are not compared on the basis of any common entrance examination.

It will further, appear from the scheme under the Rules, 1996, that when seats which have been allotted to different categories of candidates mentioned in rule 5 are not filled up for want of candidates, under the proviso to rule 5 such seats can be filled up from amongst the candidates in the waiting list for general /SC/ ST categories only. If in relaxation of the provisions of the said proviso to rule 5 under rule 9 of the Rules, 1996, the Government instead of filling up such vacant seats meant for different categories of candidates mentioned in rule 5 directs that such vacant seats be filled up by some more candidates from any or more of the North Eastern States, such relaxation by the Government cannot be said to be inconsistent with the general scheme of the Rules, 1996. This is because, the candidates in the waiting list belonging to general/SC/ST categories who have taken the common entrance examination for the available seats of the State of Assam cannot claim higher merit than those candidates recommended for the seats reserved for North Eastern States and exempted from appearing in the said common entrance examination. As to whether such a relaxation is arbitrary and violative of Article 14 of the Constitution, however, is entirely a different question to be decided on the facts and in the circumstances of each case.

The scheme under the Rules, 1996, further shows that out of the available seats meant for the candidates of the State of Assam, some seats have been reserved for candidates of different reserved categories and the rest are meant for general candidates. The proviso to rule 6 however states that if any of the seats mentioned in rule 6 remains unfilled for want of candidates, such seat shall be filled up by candidates belonging to general category whose names appear in the waiting list recommended by the Selection Board. Thus, as per the said proviso, of any of the selected candidates from amongst the reserved category does not turn up for admission, and there are vacant seats out of the available seats for candidates of the State of Assam, such vacant seats shall be filled up by candidates of general category whose names appear in the waiting list recommended by the Selection Board. If the Government relaxes this provision in the proviso to rule 6 of the Rules, 1996, and instead of filling up the vacant seats out of the available seats for different categories of candidates of the State of Assam, both reserved and general, from amongst the candidates of the general category placed in the waiting list recommended by the Selection Board, fills up such vacant seats by candidates of the North Eastern States who have not taken the common entrance examination, such relaxation, in our considered opinion, will be contrary to the scheme of the Rules, 1996. This is because, the said unfilled seats out of the available seats are meant to be filled up by candidates of the State of Assam through a common entrance examination and not by the categories of candidates mentioned in rule 5 of the Rules, 1996 who are exempted from common entrance examination.

A reading of rule 9 of the Rules, 1996, quoted above, would-show that the power to relax any of the provisions of the Rules is to be exercised "not inconsistent with the provisions of these rules". While relaxing any of the provisions of the Rules, 1996, therefore, the Government cannot disregard the scheme in the provisions of the Rules, 1996, as contained in rules 5 and 6 discussed above, and any relaxation in total disregard of the said scheme would be inconsistent with the provisions of the Rules.

Coming now to the facts of the present case, it appears from the records and in particular File No. HLB. 214/98 produced before the court by Mr. BC Das, learned Addl. Senior Government Advocate, Assam, that the Principals of the three Medical Colleges of Assam had already admitted 10 students from Meghalaya in May-June, 1999. But in May, 1999, the Rules, 1996, have been amended and instead of 10 seats for Meghalaya a total of 15 seats have been allotted under rule 5 (a) for distribution by the North Eastern Council amongst the North Eastern States. When this problem was placed before the Minister Health, he passed orders on 1.2.2000 to adjust the said 10 students of Meghalaya against 7 unutilized seats out of the North Eastern Council and 3 unutilized seats out of the State quota. The orders of the Minister have been given effect to in the letter dated 1.2.2000 of the Secretary to the Government of Assam, Health & FW Department to the Director of Medical Education, Assam, placed at page-53 of the said File. Thereafter, a Cabinet Memorandum was prepared by the Secretary, Health & FW Department on 25.7.2000 for relaxing the provisions of rules 5 and 6 of the Rules, 1996 and for allotting 8 seats to the State of Arunachal Pradesh. The Cabinet approved the aforesaid proposal in the Memorandum allotting 8 seats to the State of Arunachal Pradesh. Out of the 8 seats, 4 seats belonged to the State Quota. These 4 seats remaining unfilled were in addition to the 3 unutilized seats of the State quota adjusted against the admissions given to the students from Meghalaya as per the orders of the Minister dated 1.2.2000.

Thus, a total of 7 available seats meant for candidates of the State of Assam and for which such candidates of the State of Assam have taken the common entrance examination have been diverted for giving admission to candidates of other North Eastern States. These 7 available seats remaining unfilled could only be filled up from the waiting list of general candidates in accordance with the proviso to rule 6 of the Rules, 1996, and as has been held by us above any relaxation of the said proviso to rule 6 of the Rules, 1996, was inconsistent with the provisions of the Rules, and was not permissible under rule 9 of the said Rules. Moreover, in rule 5fa), as amended by notification dated 27.5.1999, 15 MBBS seats have been reserved for the North Eastern Council for distribution among the North Eastern States except Assam. Against those 15 MBBS seats, 8 candidates including 3 candidates from Arunachal Pradesh recommended by the North Eastern Council have already been given admission. Further, 7 more candidates of Megalaya have been give admission and have been adjusted against the 7 unutilized seats of North Eastern Council. A total of 15 candidates of the North Eastern States except Assam have already been admitted. On the other hand, the candidates placed in the waiting list on the basis of their performance in the common entrance examination are still awaiting admission in accordance with the two provisos to rules 5 and 6 of the Rules, 1996, and only one such candidate placed in the waiting list has been given admission pursuant to order passed by this court in another case. On these facts, allotment of further 8 seats in favour of candidates of the State of Arunachal Pradesh by way of relaxation of the provisions in the provisos to rules 5 and 6 of the Rules, 1996, was not only inconsistent with the provisions of the Rules, 1996, but also arbitrary and violative of Article 14 of the Constitution.

For the foregoing reasons, we do not find any merit in these appeals, and we accordingly dismiss the same. Considering however the entire facts and circumstances of the case, we leave the parties to bear their respective costs.