A.P. Bhangale, J.@mdashRule. The learned AGP waives service of notice on behalf of the respondents. By consent, rule is made returnable forthwith. Heard the learned Counsel for the petitioner and the learned AGP for the respondents.
2. This writ petition under Article 226 of the Constitution of India seeks to challenge the rotation of subject and/or reservation of seats for the OBC category in M.D.S.-PGD-CET 2010 admission test for any subject of clinical character with alternative prayer that the respondents be directed to consider the petitioner for admission to any subject of clinical character in M.D.S.-PGD-CET 2010.
3 . It is the case of the petitioner that he has passed the examination and obtained a Degree in Bachelor of Dental Surgery (B.D.S.) with 62.31% marks and he belongs to Vaishya-Vani caste, which is recognised as an other backward caste (OBC) and also falls under the non-creamy layer category. The petitioner desired to complete the M.D.S. and, therefore, he appeared for the common entrance test (CET) 2 010, conducted by respondent No. 2, from the OBC category. The petitioner is interested to secure admission to any subject of clinical character in Dentistry which are quoted as (1) Prosthodontics, (2) Periodontics, (3) Oral & Maxillofacial Surgery, (4) Conservative Dentistry, (5) Orthodontics, (6) Oral Pathology & Microbiology, (7) Oral Medicine & Maxillofacial Radiology and (8) Pedodontics & Preventive Dentistry. According to the petitioner, except the subjects at serial Nos. 6 and 7, the other subjects are classified as clinical subjects by dental practitioners. The prospectus for the PGD-CET 2010, however, did not specify as to which of the subjects are clinical and which are non-clinical in character.
4. According to the petitioner, the total available seats for the M.D.S. course for the academic year 2010 are 42, out of which 50% will be reserved for the all India quota and 3% of the State quota will be reserved for the physically handicapped candidates and in the remaining 50% seats, there will be 50% constitutional reservation SC, ST, VJ, NT, OBC, etc.
5. It is the grievance of the petitioner that due to rotation system of the eight subjects for reservation purpose for the academic year PGD-CET 2010, for OBC three seats are reserved for the subject Prosthodontics, Oral Medical Diagnosis, Radiology and Oral Pathology and Microbiology, which are of nonclinical character, while one seat is reserved for the physically handicapped candidate. According to the petitioner, there are three physically handicapped candidates, two from the open category and one belongs to the OBC category. The learned Counsel appearing for the petitioner contended that the rotation system is strictly required to be followed for the purpose of distribution of seats for reserved category and as such the reservation pattern is required to be rotated. The respondent No. 2, by information brochure published on 27-3-2010, has shown reservation for the physically handicapped candidates from OBC category. According to the petitioner, respondent No. 2 ignored and/or erred in implementing rotation of subjects. Two subjects of non-clinical character i.e., Oral Pathology & Microbiology and Oral Medicine & Maxillofacial Radiology are merely carried forward while awarding seats to OBC category. In the year 2010 there is repetition of rotation of two subjects of non-clinical character e.g., Oral Pathology & Microbiology and Oral Medicine Diagnosis & Radiology. Thus, the OBC category candidates are deprived of getting subjects of clinical character by rotation. According to the petitioner, while rotating the subjects, respondent No. 2 repeated the same non-clinical subjects given to OBC category in 2009 of non-clinical character for the reserved category of OBC again in the year 2010. Thus, the petitioner being selected from the OBC category for the academic year 2010, will be forced to accept either Oral Pathology & Microbiology or Oral Medicine Diagnosis & Radiology, which are subjects in the category of non-clinical . The petitioner, therefore, has prayed for appropriate directions.
6. The learned AGP appearing for the respondents contended that there are 21 seats of Post Graduate Dental Course available for the State quota in PGD-CET 2010. One seat is reserved for the physically handicapped candidate from the OBC category. The seats are further distributed as, 10 for open category and 10 for constitutional reservation category. According to the respondents, there are eight subjects in which Post Graduate Dental Course is conducted in the State of Maharashtra and they are (1) Prosthodontics, (2) Periodontics, (3) Oral & Maxillofacial Surgery, (4) Conservative Dentistry, (5) Orthodontics, (6) Oral Pathology & Microbiology, (7) Oral Medicine & Maxillofacial Radiology and (8) Pedodontics & Preventive Dentistry and out of these eight subjects only Oral Pathology & Microbiology is a non-clinical subject. According to the respondents, out of the 21 seats, 4 seats of M.D.S. are available in nonclinical subject Oral Pathology & Microbiology for the academic year 2010 (2 for open category and 2 for reserved category) while 4 seats are reserved for the OBC category (being 19% of the constitutional reservation). It is contended that one seat out of the four is reserved for a physically handicapped OBC candidate and in subject-wise classification, three seats are available for clinical subjects and one seat is available for the non-clinical subject (Oral Pathology & Microbiology). The respondents submitted that as 10 seats are for the reserved category candidates, they have very limited option.
7. The learned Counsel for the petitioner has placed strong reliance upon the ruling of the Supreme Court in Indra Sawhney and Ors. v. Union of India and Ors. 1992 (6) SLR 321 to submit that accommodation of candidates has to be as per the observations and guidelines by the Supreme Court. In the matter of reservation of seats and rotation of subjects also, the respondents are required to follow the same guidelines and accommodate the petitioner in the category of OBC in clinical subject, as prayed for. Especially a subject of non-clinical character cannot be rotated in a manner so as to repeat it in the succeeding academic year and seat of OBC cannot be merged with the seat of a physically handicapped category as it is a special category of horizontal reservation. The error appears to have occurred in accommodating seats in the constitutional reservations and open category candidates, as also by subject-wise classification of seats.
8. In Pratik Bhupendra Vora v. State of Maharashtra and Anr. 2009 (5) Mh.L.J. 108, a Division Bench of this Court in para 6 has observed thus:
6. We further find that the reservation for handicapped persons is further required to be carried out by way of reservation in favour of the Scheduled Caste, Scheduled Tribes and other sorts of reservations either constitutionally provided and/or provided by the State Government. Therefore, the only seat which goes to the physically handicapped person will always go in favour of open candidate, but it will equally go into reservation system and that constitutional reservation shall also be observed in respect of this seat. Our judgment should not be taken as providing any reservation in favour of the handicapped persons and that too, in favour of open candidates. All constitutional reservations shall apply to the handicapped reserved seats. Therefore, we find merit in the petition to the extent we made observations above. We quash and set aside the reservation made insofar as Oral Pathology and Microbiology for the year 2009. We direct the respondents to select any other subjects, excepting the subjects which have been repeated earlier, to provide a reservation in favour of the handicapped persons for the year 2009. We further direct the respondents to prepare a further reservation, except for a moment that there is only one reservation seat for candidate of handicapped category for the next five years, applying all tests stated above and publish the reservations well in advance in prospectus so that the handicapped candidates know well in advance the reservation made by the respondents.
9. Prima facie these observations appear per incuriam of the observations made by the Supreme Court in Indra Sawhney''s case (supra). The procedure to work out reservation was explained by Shri Justice B.P. Jeevan Reddy (as His Lordship then was) in para 197, which reads thus:
197. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ''vertical reservations and horizontal reservations. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under Clause (i) of Article 16(4) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservation what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (i) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. Category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
10. Article 14 of the Constitution of India aims at equality and prohibits discrimination in any form. In our opinion, the decision of the Division Bench in Pratik Bhupendra Vora''s case (supra) must be held per incuriam as it appears that the binding precedent in Indra Sawhney''s case was not brought to the notice of the Division Bench of this Court. The respondents are required to follow the guidelines and ratio in Indra Sawhney''s case and not the observations made by the Division Bench of this Court which are at variance or per incuriam of the guidelines and ratio in Indra Sawhney''s case. The judicial precedent (a majority view) is still a binding precedent in view of Article 141 of the Constitution of India. The ruling in Pratik Bhupendra Vora''s case is clearly distinguishable as the observations in Indra Sawhney''s case were neither noted nor considered by the Division Bench. We, therefore, direct the respondents to follow the ratio decidendi and the guidelines as have been framed in Indra Sawhney''s case for selecting candidates for the Dental Post Graduate Course (M.D.S.) at PGD-CET 2010. We further direct the respondents that the error committed, therefore, must be rectified without delay as a medical student who can pursue his higher studies in his chosen subject, with his special medical knowledge and skill, can become expert in diagnosis and treatment of patients and serve the society better. The petitioner be considered for admission to any subject of clinical character in M.D.S. PGD-CET 2010 as early as possible and preferably within three weeks, including recounselling .
11. In the result, the rule is made absolute accordingly. No order as to costs.
