H.W. Dhabe, J.@mdashThe Writ Petition No. 2857 of 1989 and the Writ Petition No. 5 of 1990 in which notices before admission are issued can conveniently be disposed of by the judgment in W. P. No. 1961 of 1989 with which they are heard. Rule is, therefore, issued in Writ Petition No. 2857 of 1989 and Writ Petition No. 5 of 1990 and they are disposed of by the judgment in W.P. No. 1961 of 1989. The petitioner in W.P. No. 2857 of 1989 is also an intervener in W. P. No. l961 of l989.
2. The facts in W.P. No. 1961 of l989 are that the petitioner therein claimed admission in the reserved category of the "Other Backward Classes" (for short "OBC") to the First Year M.B.B.S. Course in the Government Medical College, Nagpur affiliated to the Nagpur University for the academic session 1989-90. The petitioner did not get admission to the first year M.B.B.S. course in the above category of OBC. The grievance of the petitioner is that she did not get admission in the category of OBC in the respondent No. 2 college because of the erroneous interpretation placed by the respondents upon Rule (b)(l)(ii) of the rules for admission to the Medical Colleges of the State Government framed under the Government resolution dated 13th June 1989 (for short, "the rules for admission"). It may be seen that according to the respondents, as provided in the aforesaid rule B(1)(ii), the 10 percent reservation prescribed for OBC in rule B(1) is inclusive of the candidates belonging to the O.B.C. who are selected on open merit. Feeling therefore aggrieved, the petitioner has preferred the instant Writ Petition in this Court.
3. Apart from challenging the interpretation put by the respondents 1 and 2 upon rule B(1) (u) of the rules for admission, the petitioner has also challenged its validity on the ground that it is violative of Article 14 of the Constitution of India. Another contention raised in the instant writ petition is about the validity of Rule B(5)(ii) under which 30 percent of the total number of seats available after carving out the 15 percent seats reserved for being filled in on the basis of the criteria of merit through All India Entrance Examination are reserved for being filled in on the State-wide basis from amongst the candidates within the State of Maharashtra irrespective of the area of jurisdiction of the University in the State. When rule was issued in this writ petition, it was directed that one seat should be reserved by the respondents 1 and 2 until further orders with a view that if the petitioner succeeds and is otherwise eligible for admission, she should be able to get the said seat. Kumari Archana Suresh Gogate the petitioner in Writ Petition No. 2857 of 1989 who is also an OBC has however intervened in the instant writ petition claiming that she being above the petitioner Kumari Rupali Vinayak Choudhary in the merit list has in comparison to the petitioner better claims forgetting the said seat even from amongst the OBC. The State Government has controverted the contentions raised on behalf of the petitioner.
4. As regards the first contention raised on behalf of the petitioner, we may reproduce below rule B(1)(1) and rule B(1)(ii) with whose interpretation we are principally concerned in this writ petition. For the sake of convenience, we also reproduce below the various percentages prescribed for various reserved categories under rule B(1):
(a) Scheduled Castes and Scheduled Castes converts to Buddhism - Percentage - ....13
(b) Scheduler Tribes including those living outside specified areas - ....7
(c) De-notified and Nomadic Tribes - ....4
(d) Other Backward Communities - ....1034
Rule B.(1)(1):
The 24 percent seats reserved for candidates belonging to the three categories of Backward Classes, i.e. (i) Scheduled Castes and Scheduled Castes converts to Buddhism: (ii) Scheduled Tribes including those living outside specified areas: and (iii) De-notified Tribes and Nomadic Tribes, shall be exclusive of the number of students belonging to these three categories who secure admission on merit provided that the total number of candidates of these three categories of "Backward Classes" who secure admission against the 24 percent reserved quota and on merit does not exceed 40 percent of the total number of seats available for admission if any of the three categories mentioned above does not get the required number of candidates for the percentage laid down by Government, the seats so remaining vacant shall be filled in from among the students from the same category of other University areas of the State with reference to their interse merit. In spite of the above, the seats remaining vacant categories with reference to their interse merit in the State.
Rule B(1)(ii):
In respect of Other Backward Classes it is open to such candidates to secure even more than 10 percent seats on the basis of merit, but in that case there would be no need for any further, reservation, if, however, the admission secured by Other Backward Classes on merit is less than 10 percent, there shall be reservation for Other Backward Classes to the extent of the shortfall below 10 percent.
5. On perusal of rule B(1)(i) it is clear that as regards the 24 percent seats reserved for candidates belonging to the three categories of Backward Classes viz. (i) Scheduled Castes and Scheduled Castes converts to Buddhism: (ii) Scheduled Tribes including those living outside specified areas: and (iii) De-notified Tribes and Nomadic Tribes, the above 24 percent seats would be exclusive of the seats which the candidates belonging to these categories secure on open merit basis. However, as per the above rule B(l)(i), the total number of candidates of these three categories of Backward Classes who secure admission against the 24 percent reserved seats and those who secure admission on merit cannot exceed 40 percent of the total number of seats available for admission. As regards the 10 percent reservation for OBC candidates, rule B(1)(ii) has provided that if any of the candidates belonging to OBC category secure seats on open merit basis, then the reservation of 10 percent under the said category of OBC would be to the extent of a shortfall below 10 percent. If is thus clear from the above rule B(l)(ii) that in the reserved category of OBC, the prescribed reservation of 10 percent is intended to be inclusive of the candidates who get admission in the above reserved category of OBC as well as the candidates of this category of OBC who get admission on open merit.
6. The learned Counsel for the petitioner has however heavily relied upon the judgment of this Court in the case of Ravindra Sahadeo Sonawane vs. Dean, Grant Medical College and others (1989 Mh.LJ.456) in support of his submission that in all the categories of Backward Classes the admission should be given to the extent of their prescribed percentages exclusive of the candidates from these reserved categories who secure admission on merit basis. Perusal of the above judgment does not show that the Division Bench was considering therein any rules analogous to rules B(1)(i) and B(1)(ii). Without any provision like rules B(1)(i) and B(1)(ii), it was possible to construe the rule about reservation in the manner in which it was construed by the Division Bench in its judgment cited supra. However, when we have before us the specific provisions covering the question as to What extent the admission of the reserved category candidates on open merit basis can be taken into consideration while granting admission in the prescribed percentages in the reserved categories, we have to go by such rules unless and until they are declared invalid and inoperative in law. The above judgment relied upon on behalf of the petitioner is therefore of no assistance to the petitioner for interpreting specific rules (B)(l)(i) and B(l)(ii) in the instant case. A similar view was taken by us when the above judgment was cited before us in W. P. No. 2031 of 1981 (Kumari Suwarna vs. The Jt. Director (Dental) of Medical Education and Research, Bombay & 3 others) decided on October 9, 1989 when we had to interpret similar rules for selection and appointment of Clinical Assistants in the Government Dental Colleges and Hospitals.
7. The learned Counsel for the State has brought to our notice the subsequent judgment of the Division Bench of this Court in the case of Dr. Sanjay Manmal Sanghavi vs. State Of Maharashtra and others (1990 Mh.L.J. 115) in which relying upon the five Judges Full Bench decision in Special Civil Application No. 1372 of 1977 (Ku. Sunanda vs. State of Maharashtra and 3 others) decided on 8th September 1977, it is held that the view taken in Ravindra''s Case cited supra by the Division Bench is contrary to the view taken by the Full Bench in the above judgment and therefore, it is only per incuriam and not binding upon the subsequent Division Bench. The Division Bench in Dr. Sanjay''s Cast held that it was bound to follow the decision of the Full Bench cited in that case. We are in entire agreement with the above view taken in Dr. Sanjay''s Case.
8. The learned Counsel for the petitioner has however urged before us that in view of the difference of view in the two Division Benches of this Court in the aforesaid two cases upon the construction of the rule for reservation, we should refer the matter to the larger Bench for consideration. In fact, such a contention was raised in Dr. Sanjay S CASE itself and was rejected (see para 16 of the report). In our view, no question of reference of the matter to the Full Bench arises in the instant case because as pointed out by us earlier, in Ravindra''s case, the Division Bench was not called upon to consider the provisions like rules B(1)(i) and B(1)(ii)* specifically dealing with the question of the extent of admission of the candidates belonging to the reserved categories to be made on open merit and in the quota of reservation prescribed for them. As held by this Court in the case of Dr. Jaishree vs. State (1989 Mh.LJ. 149, para 23) a judgment rendered sub silentio in the sense that the point was not perceived or present in the mind of the Court although it might have been involved in the facts of the case, cannot become a binding precedent in the subsequent case where the point is raised and agitated. The Supreme Court has held in the case of
9. The reservation made in rule B under the Government resolution dated 13th June 1989 for various categories of Backward Classes have thus to be considered in the light of rules B(l)(i) and B(l)(ii), the 10 percent reservation prescribed for the category of OBC is inclusive of the candidates from this reserved category who secure admission on open merit basis. It is only to the extent of the shortfall below 10 percent that the admissions are given in this reserved category of OBC. The submission made on behalf of the petitioner that the prescribed percentage of 10 for OBC is exclusive of the admissions given to the candidates of this category on open merit cannot therefore be accepted. The admissions made by the State on the basis of the above interpretation therefore, cannot be disturbed.
10. The learned Counsel for the petitioner has stated before us that he does not press the challenge about the validity of rule B(1)(ii) although specific relief was claimed in that regard by amendment of the Writ Petition. It is not therefore necessary for us to consider the said question in the instant case. However, we may state that we have upheld the validity of an analogous rule in the B.D.S. course in Writ Petition No. 2031 of 1981 decided on October 9,1989 cited supra.
11. As regards rule B(5)(ii) which provides for reservation of ?0 percent seats to be filled in on State-wide basis, the petitioner does not press his contention as regards the validity of the said rule also particularly in view of the two judgments of the Supreme Court herein referred to below. In the case of
12. The Writ Petition No. 1961 of 1989 thus fails and is liable to be dismissed. The interim stay granted by this Court of reserving one seat shall also thus stand vacated with the result that said seat will have to be filled inform amongst the eligible candidates. We have verified from the learned Counsel for the State Government that the seat which was blocked by the interim order of this Court in this writ petition has to be filled in by the reserved category candidate belonging to OBC. It is in the context of the above vacant seat for OBC that the question of consideration of the claims of the petitioner in W. P. No. 2657 of 1989 and W. P. No. 5 of 1990 arises.
13. In this regard, the learned Counsel for the petitioner Kumari Archana Suresh Gogate in W. P. No. 2857 of 1989 who is also an intervener in W. P. No. 1961 of 1989 has urged before us that from the merit list of OBC candidates, the candidates upto Sr. No. 30 i.e. upto Shri A. V. Gawande have been given admission and that Kumari Archana Suresh Gogate is at Sr. No. 31. The submission therefore is that she would be entitled to get the said admission but for the claim made by writ petitioner Prajakta Madhukar Deshmukh in W. P. No. 5 of 1989 who is given admission in the Government Medical College, Yavatmal and who claims that since he had given first option for the Indira Gandhi Medical College, Nagpur, he should be transferred to the seat which is blocked by our interim order as he is above Kumari Archana Suresh Gogate, at Sr. No. 24 in the merit list of OBC candidates. The learned Counsel for the petitioner thus submits that after the seat reserved for OBC candidate is allotted to Shri Prajakta Madhukar Deshmukh, Kumari Archana Suresh Gogate should be accommodated in his seat in the Government Medical College, Yavatmal.
14. As regards the claim made by Prajakta Madhukar Deshmukh for transfer to I.G.M.C., Nagpur since he had already taken admission in the Government Medical College, Yavatmal the question of his transfer to the I.G.M.C., Nagpur in the seat which is now to be filled in, will have to be considered by the competent authority in accordance with the relevant rules in that regard. If the competent authority decides to accommodate him in this seat, he should then consider the claim of Kumari Archana Gogate in the seat in the Government Medical College at Yavatmal which would stand vacated by Prajakta Madhukar Deshmukh. From the merit list of the OBC candidates, it is dear that the petitioner in W. P. No. 1961 of 1989 i.e. Kumari Rupali Vinayak Choudhary has no chance of getting the above seat reserved for OBC candidates because she is at Sr. No. 40 in the merit list of OBC candidates. It is only when the claims of other candidates are exhausted in the sense that they are not ready to accept the admission in the above seat that the claim of Rupali Choudhary can be considered for the above seat.
15. In the result, Writ Petition No. 1961 of 1989 fails and is dismissed. Rule shall stand discharged in this writ petition. As regards W. P. No. 2857 of 1989 and W. P. No. 5 of 1990, the claims of the petitioners therein for admissions is the seat in question reserved for OBC candidates should be considered in the light of the observations made by us in this judgment and in the light of the merit list for the OBC candidates. Rule is made absolute in the above terms in the above writ petitions. There would however be no order as to costs in all the three writ petitions.
16. The learned Counsel for the petitioner in W. P. No. 1961 of 1989 has prayed for leave to appeal to the Supreme Court in this writ petition. We find that no substantial question of law is involved in the instant writ petition particularly when the contentions regarding the validity of the rules in question are not pressed before us and as regards the interpretation of rule B(1)(ii), when there is no manner of doubt that it admits of no other interpretation. Hence leave to appeal to the Supreme Court is rejected.
