S.P. Singh, J.@mdashThis appeal has put to challenge, in substance, the mode of allotment of seats in various disciplines of medical sciences, in undergraduate courses, in the State of Bihar. The State Government has made a scheme for reservation of seats in favour of certain deprived sections of the society. It is the procedure adopted for allotment of seats, in the light of the scheme of the State Government, which is the subject matter of challenge in the present appeal. Let us, now, take note of the admitted facts governing the policy of allotment of seats in various disciplines of medical sciences under the impugned policy of the State Government.
2. Since the year 1997, Bihar Combined Competitive Entrance Examination Board (BCECE Board), constituted under Bihar Combined Competitive Entrance Examination Act, 1995, has been conducting, every year, Bihar Combined Competitive Entrance Examination, for selecting candidates in order to admit them in the first year graduate level professional courses in Medical, Engineering and Agriculture streams in various Institutions of the State of Bihar.
3. It was for the first time in the year 2013 that a single Eligibility-cum-Entrance Examination for admissions, in MBBS and BDS courses, on All India basis, had been conducted by the Central Board of Secondary Education (CBSE), New Delhi, known as NEET (UG)-2013.
4. The appellant herein, desirous of taking admission in BDS course, appeared in the National Eligibility Test-cum-Entrance Test, conducted by the CBSE and, having qualified in the said examination, she was placed in All India Merit List, at serial number 1132, in the general category.
5. By Advertisement No. BCECEB (UGMAQ-2013/10, dated 1.8.2013, Health Department, Government of Bihar invited online applications, for appearing in Under Graduate Medical Admission Counselling (UGMAC)-2013, from the candidates, whose Roll Numbers appeared in the merit-list based on NEET (UG)-2013. The Counselling Programme was to be held, on various dates, between 20.8.2013 and 24.8.2013 for the candidates of General category. Pursuant to the said advertisement, the appellant, who was placed at serial No. 1132, in All India merit list, under General category, bearing Roll No. 81117276 [NEET (UG)-2013], applied online for appearing, in UGMAC-2013, for counselling.
6. The appellant is aggrieved by the fact that she was not called for counselling, because some of the seats, meant for candidates of general category, were wrongly filled up from candidates belonging to reserved category. She submits that quite a few candidates from the reserved category, such as, EBC and BC, who had qualified with higher marks in the general merit list and had appeared in the counselling, opted for admission, against the reserved quota, and did not opt for the general quota inasmuch as these reserved category candidates could get seats in Institutions, which were preferred for reasons of location, standard of teaching and other relevant factors.
7. According to the appellant, when the candidates, belonging to the reserved category, had, rather, opted not to take admission, on their own merit, against the quota meant for candidates of the general category and had opted to take admission against the quota meant for candidates of the reserved category, the seats, in the general category, ought to have, in such circumstances, been left vacant and not allowed to have been filled up by the candidates of the reserved category, who were placed, in the general merit list, below the candidates of the general category so that the same could have been filled up by candidates belonging to the general category, who were higher in merit than the candidates of the reserved category.
8. The grievance of the appellant is that the respondents, in complete contravention of the law relevant thereto, has filled up such vacant seats of the general category by the candidates of the reserved category, who were at the bottom of the merit list under their own reserved category.
9. The further grievance of the appellant is that by allotting the seats to the candidates of the reserved category by ignoring their lower position in the merit fist compared to the candidates of the general category, what, in effect, has been done is that the candidates of the reserved category have been allowed to take more than 50% seats denying the right of the Candidates of the general category the seats meant for more meritorious candidates than the candidates lower in the order of merit in the select list.
10. Left with no effective remedy, the appellant filed writ application, bearing C.W.J.C. No. 18482 of 2013, with the following prayers:--
(i) For issuance of a writ in the nature of mandamus or a writ of mandamus or any other writ thereby directing the respondents to call the petitioner for the counselling programme of the Under Graduate Medical Admission Counselling for admission to MBBS/BDS Course.
(ii) For issuance of a writ in the nature of mandamus or a writ of mandamus or any other writ directing the respondents to apply the provisions of the Bihar Reservation (In Admission in Educational Institutions) Act, 2003 in the correct spirit and not to exceed the quota of seats to be filled by the reserved category candidates in excess of 50% of the total seats.
(iii) For a writ in the nature of mandamus or a writ of mandamus directing the respondents to refrain from traveling beyond the statutory provisions and introducing the concept of compensation of seats for the reserved candidates in the General category.
11. The writ application was dismissed by a learned Single Judge of this Court by order, dated 22.1.2014. The learned Single Judge, while dismissing the writ application, placed reliance on the decision, rendered in C.W.J.C. No. 8414 of 2011, dated 12.8.2011, inasmuch as the learned Single Judge was of the view that Para-9(A)(iv) of the Prospectus of PGMAT-2011 provides that the candidates of the reserved categories, competing in General Merit list, will not be counted against reserved category seats and that such candidates of the reserved category will have the option to take the seat meant for the candidates of the general category or take the seat meant for the candidates of reserved category and, further, if the seat, in the reserved category, gets exhausted due to their option, it will be compensated from the seats of General Merit List.
12. Assailing the order of the learned Single Judge, Mr. Patanjali Rishi, learned counsel for the appellant, submits that such a scheme, as has been relied upon by the respondents and accepted by the learned Single Judge, was already rejected by the Supreme Court in
13. On the other hand, Mr. Kaushal Kumar Jha, learned Additional Advocate General No. 14, submits that in terms of Para 4.5 of the Prospectus of UGMAC-2013, candidates of reserved category, who are included in General (unreserved) Category and selected on the basis of their own merit, would not be counted against the vacancies of their respective reserved categories and this policy is in consonance with the provisions incorporated in Para 3 of the Bihar (In Admission in Educational Institutions) Reservation Act, 2003 (hereinafter referred to as "the Reservation Act, 2003") which states as under:--
(3) Such reserved category candidates who is selected on the basis of his merit, shall be counted against 50% vacancies in the open merit category and not against the reserved category vacancies.
14. Learned Additional Advocate General has also placed reliance upon the Resolution of the Government of Bihar, Health, Medical Education and Family Welfare Department, contained in Memo No. 224(26)/26 PGMAT 2-6/15/Health, Patna, dated 14.11.1995, which is at the centre of controversy.
15. As per the Memo, dated 14.11.1995, aforesaid, if a candidate of reserved category, eligible for general category seat, on the basis of his merit, opts to take seat, in his respective reserved category, forgoing a seat, which would have been, otherwise, available to him in the open merit category, then, the seat, which so falls vacant in the open merit category, would go to the candidate of the reserved category, though such a reserved category candidate may be lower in the merit list than candidate or candidates, belonging to the General category, as compensation for maintaining the reservation percentage of the concerned reserved category.
16. The core issue, which falls for determination, in the present appeal, is this: If a candidate of reserved category, competing under general merit list, does not opt for seat meant for general category, but opts in its own category, then, such a seat is required to be filled up from a candidate of reserved category, who is placed at the bottom of the reserved category by taking the seat of a candidate of general category, who may be higher in the merit list than the candidates belonging to the reserved category.
17. The issue involves noticing of relevant laws relating to reservation in educational Institutions. With a view to providing adequate representation to SC/ST and other backward classes, in admission, to different educational institutions, the State Legislature enacted the Bihar (In Admission in Educational Institutions) Reservation Act, 2003. Section 3 of the Reservation Act, 2003, states that a reserved category candidate, who is selected on the basis of his merit, shall be counted against 50% vacancies in the open merit category and not against the reserved category vacancies. The appellant has no grievance with this provision of reservation and has not questioned the validity of Section 3 of Reservation Act, 2003. We find similar provisions, with respect to reservation, having been made in the prospectus of UGMAC-2013, for admission in Under Graduate courses in Medical Institutions.
18. Para 4.5 of the Prospectus of UGMAC-2013 states that reserved category candidates, who are included in General (unreserved) Category and selected on the basis of their merit, shall not be counted against the vacancies of their respective reserved categories. The appellant has, again, no grievance with respect to Para 4.5 of the Prospectus.
19. The dispute centers around Para No. 3 of the Memo No. 225(26), dated 14.11.1995, of the Department of Health and Medical Welfare, Government of Bihar, which states that if a reserved category candidate, who competes in General category merit-list, but vacates a seat in the General category on basis of his merit and prefers to opt for a seat, in his own reserved category, for better preference of institutions, then, the General category seat shall still remain available to reserved category candidate from the bottom of the list of selected reserved category candidates, as compensation, for maintaining the reservation percentage of the optee.
20. The said resolution of Bihar Government, which has, indisputably, been followed, in making allotment of seats, is under challenge. The respondents have not disputed that they have followed the aforesaid policy in making allotment of general category seats to the reserved category candidate.
21. The contention of the appellant is that similar scheme; as the one at hand, has been rejected in the case of M. Neethi Chandra (supra).
22. In M. Neethi Chandra (supra), Government of Bihar, Department of Personnel and Administrative Reforms, published a resolution, dated 7.2.1992, being No. 11/K1-1022/91-K20 (hereinafter referred to as ''Resolution No. 20'') on the subject titled "provision for reservation for nominating (admission) of Scheduled Castes/Tribes/Backward Class/Extremely Backward Class/Female into the Professional Training Institutes". Paragraph 6 of the Resolution No. 20 read as under:--
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.
23. Having considered the policy laid down at Paragraph 6 of the Resolution No. 20, the Supreme Court, in M. Neethi Chandra (supra) has observed that because of Para 6 of the resolution quoted above, which was applied in allotment of seats in various branches of the Post Graduate Medical courses in the State of Bihar, some candidates, in the reserved categories, found themselves in a disadvantageous position inasmuch as the candidates, in various reserved classes, who could qualify, on merit, were treated at par with the candidates of general category and were allotted branches, which fell to them on merit-cum-choice basis and which led to allotment of such courses to the candidates of the reserved category, which were not of their choice, while the course/college of choice was available to a candidate qualifying for the reserved seat, although they were lower in merit position.
24. The controversy, which Resolution No. 20 aforementioned, raised led to the filing of various writ petitions before the High Court of Patna.
25. In order to remove the anomalies, the High Court devised a method of allotment of seats by which the reserved seats were offered first (i.e. before the general seats were filled) to the candidates of the reserved category on merit and, upon filling up of all the seats in this manner, all other qualifying candidates of the reserved category were "adjusted" against open seats in the general category along with the general merit candidates and offered seats on merit-cum-choice basis.
26. Putting to challenge the said decision of the High Court, the State of Bihar contended, in the appeal, in M. Neethi Chandra (supra) that if the mode and method, suggested by the High Court, is followed, all students of reserved category, who had secured the minimum marks would have to be admitted even though there may not be adequate number of vacancies for them. Another grievance against the judgment of the High Court of Patna, expressed by the State of Bihar, in the appeal, in M. Neethi Chandra (supra), was that in the method suggested by the High Court, the students, placed at the bottom of the respective reserved categories, would be placed in the college of last choice and, thus, all such students would find themselves in one college, which would be arbitrary and violative of Articles 14 and 16 of the Constitution of India.
27. Dealing with the first apprehension, which the State of Bihar had expressed, in the appeal, in M. Neethi Chandra (supra), the Supreme Court held that the apprehensions of the State of Bihar were genuine inasmuch as the High Court, while laying down the procedure, had not taken note of the eventuality in which the number of candidates of the reserved category, who qualify on the basis of minimum marks, may far exceed the number of seats reserved for them. Paragraph 11 of the judgment impugned, in appeal, before the Supreme Court, reads as under:--
if reserve candidates are admitted at the first instance on merit reserved seats in their respective category and those of the same category also qualifying for admission, by virtue of reservation or otherwise, but placed below them are adjusted along with general candidates, according to merit, against open seats in the general category, the anomaly can be fully removed. At first glance it may appear somewhat incongruous but on closer examination would be workable just and proper. If the procedure is changed in the manner that the reserve candidates are first considered and admitted against reserved seats of their respective categories on the basis of the merit they will be able to get the course and college of their choice because seats are already reserved for them in each course or subject. The rest of the candidates of that particular category placed lower than them but qualifying for admission in excess of the seats reserved for them may then be adjusted against open seats in the general category along with general candidates on merit. Naturally, they will be placed at the bottom in the general category but coming as they do by virtue of the reservation or less merit, they cannot make a grievance of that. They cannot also make a grievance of the fact that by virtue of their low placement in the merit list of the general category, they are not able to get course/college of their choice. That is how the interest of reserve category candidates can be best served without violating the norm of selection and allotment of course/college on merit-cum-choice basis.
28. The Supreme Court pointed out, in M. Neethi Chandra (supra), that the High Court had not clarified its intentions by illustrations. If by the word "adjusted", the High Court meant that all candidates of the reserved category, qualifying on the criterion for reserved category, must necessarily be given admission, it would produce anomalous results. The Supreme Court explained its conclusion, with regard to the decision of the High Court, which stood impugned, in the appeal, in M. Neethi Chandra (supra) by illustration, which is reproduced hereinbelow:--
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 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.
29. Based on the above illustration, the Supreme Court pointed out, in M. Neethi Chandra (supra), that the number of such candidates may, in a particular year, be much larger and, thus, the method, evolved by the High Court, would create much hardship and the method would also not be in tune with the principles of equality and hence, the method, evolved by the High Court, would have to be struck down. The Supreme Court observed that if, however, the word ''adjusted'' was read to mean considered, alongwith other general merit list candidates, it would lose much of its value, for, as per the above illustration, the 5 candidates, qualifying on reserved category criteria having not secured enough marks according to general criteria, cannot, at all, be allotted any seat in the general category.
30. Having pointed on those aspects, which had not been considered by the High Court, while laying down the procedure for admission into the various disciplines of medical sciences, the Supreme Court further pointed out, in M. Neethi Chandra, (supra), that all was also not well with the Government Resolution No. 20, because it operated against the very candidates for whom the protective discrimination was devised inasmuch as the intention of the Resolution No. 20 was to give full benefit of reservation to the candidates of the reserved categories, but to the extent the meritorious, among them, were denied the choice of college and subject, which they could secure under the rule of reservation, the Resolution No. 20 cannot be sustained. The Supreme Court, therefore, held, in M. Neethi Chandra (supra), that the Resolution No. 20, therefore, can be given effect only if the candidates of the reserved category, qualifying on merit with candidates of the general category, consent to being considered as a candidate of general category on merit-cum-choice basis for allotment of college/institution and subject.
31. Dealing further with the merit of the argument advanced by the State of Bihar as appellant, in M. Neethi Chandra (supra), the Supreme Court observed that the appellant (i.e. the State of Bihar) had contended that according to the procedure evolved by the High Court, the students, at the bottom of the respective reserved category, would necessarily be placed in the same college, i.e., college of last choice of the candidates and, therefore, this would be violative of Articles 14 and 16 of the Constitution of India.
32. Reacting to the above contention, the Supreme Court, in M. Neethi Chandra (supra), concluded that the apprehension of the appellant was totally baseless, because the choice of subject as well as college would always be different for different students and this difference would exist even for those at the end of the list and in respect of their last choice and even if such a situation did arise, the same would be not violative of Articles 14 and 16 of the Constitution of India and, at any rate, the operation of the Resolution No. 20 did not make the situation any different.
33. In the light of what have been pointed out, the Supreme Court, while allowing the appeal, in M. Neethi Chandra (supra), held that the impugned judgment of the High Court must be set aside and the operation of the Resolution No. 20 shall have to be given effect subject to the conditions mentioned by it.
34. The relevant observations, appearing in Ramesh Kumar (supra), the Supreme Court has pointed out that such a scheme would give undue advantage to the candidates of the reserved categories beyond their quota. The relevant observations, appearing in Ramesh Kumar (supra), read as under:--
36. We must also take note of the fact that when MRC candidates get adjusted against the reserved category, the same creates corresponding vacancies in the general merit list (since MRC candidates are on both lists). These vacancies are of course filled up by general candidates. Likewise, when MRC candidates are subsequently adjusted against the General category [(i.e. without available the benefit of Rule 16(2)], the same will result in vacancies in the reserved category which must in turn be filled up by wait-listed in the reserved category candidates. Moreover, the operation of Rule 16 does not result in the ouster of any of the candidates recommended in the first list. Many of the wait-listed candidates are accommodated in the second stage, and the relatively lower ranked waitlisted candidates are excluded. It is pertinent to note that these excluded candidates never had any absolute right to recruitment or even any expectation that they would be recruited. Their chances depend on how MRC candidates are adjusted.
35. The Supreme Court, in Ramesh Kumar (supra), concluded and held, thus:--
72. We sum up our answers:--
(i) MRC candidates, who avail the benefit of Rule 16(2) and adjusted in reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservations quotas. The seats vacated by MRC candidate in the general pool will be offered to General category candidate.
(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 of 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) of Articles 14, 16(4) and 335 of the Constitution.
36. Thus, in our considered opinion, both the respondents and the learned Single Judge erred in taking the view that filling up general seats, which have not been opted by the reserved category candidates competing in general category merit list, from candidates placed at the bottom of the reserved category, would be valid as it would provide for compensation for maintaining the reservation percentage of the concerned reserved category. Para 3 of 1995 Scheme of Health Department as well as order of the learned Single Judge are clearly, in the teeth of decision in M. Neethi Chandra (supra) and Ramesh Ram (supra), not sustainable.
37. Hence, we strike down Para 3 of the Policy as arbitrary, violative of Articles 14 and 16 of the Constitution of India and also being, in teeth of the pronouncements of the Supreme Court, in M. Neethi Chandra (supra) and Ramesh Ram (supra), incorrect by providing benefits of reservation beyond the constitutional scheme of reservation and statutory provisions contained in Section 3 of Bihar Reservation Act, 2003.
38. Now, having held that the policy contained, in the Resolution of the 1996, is, in teeth of the decisions of the Supreme Court, in the cases of M. Neethi Chandra (supra) and Ramesh Kumar (supra), are not sustainable, we proceed to examine as to what relief or reliefs the appellant would, at this stage, be entitled to.
39. The admission to the Medical courses was made in the month of September, 2013. We are, now, in the middle of April, 2014. The Supreme Court, in the case of
40. The Supreme Court in para 38.2, in the case of Asha (supra), (to be verified) has held as under:--
38.2. Question (b): 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counselling by 15th September of the relevant academic year (in terms of the decision of this Court in Priya Gupta). Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in Priya Gupta and this judgment are found to be unexceptionally satisfied and the reasons therefore are recorded by the court of competent jurisdiction.
(Emphasis is added)
41. In the present case, the appellant has promptly moved this Court challenging the denial of admission to the B.D.S. Course as soon as she came to learn why she had not been called for counselling. The Writ Court also did not take much time in disposing of the matter. The matter has, now, travelled from learned Single Bench to the Division Bench and we are in the month of April, 2014, whereas cut-off date for admission was September, 2013.
42. The appellant submits that if the Court directs for admission even in the midstream, she is prepared to take examination for the B.D.S. Course Part-I, at her own risk, in spite of having missed valuable months for no fault of hers.
43. We find it, in the light of the decisions in Priya Gupta (supra) and
44. In the result, this appeal is allowed and the order of the learned Single Judge is modified to the extent indicated above.
I.A. Ansari, J.
45. While completely agreeing with the observations made, and the" conclusions reached, by my esteemed brother, Samarendra Pratap Singh, J., I wish to add a few lines for the purpose of clarification of the issues involved and the reasons for our decision.
46. This appeal has put to challenge, in substance, the mode of allotment of seats, in various disciplines of undergraduate courses, in medical colleges, in the State of Bihar. The State Government has made a scheme for reservation of seats in favour of certain deprived sections of the society. It is the procedure adopted for allotment of seats, under the scheme of the State Government, which is the subject, matter of challenge in the present appeal.
47. Let us, now, take note of the admitted facts governing the policy of allotment of seats in various disciplines of medical sciences under the impugned policy of the State Government.
48. The impugned policy, with regard to the allotment of seats, envisages that if a candidate of reserved category, competing under general merit list, does not opt for a seat meant for general category, then, such a seat is, on the principle of compensation, required to be filled up from a candidate of reserved category, who may have been placed at the bottom of the reserved category, denying thereby the seat to a candidate of general category, who may be higher in the merit list than the candidate belonging to the reserved category to whom such a seat is allotted.
49. In the light of the impugned policy, let me, now, briefly point out the grievance of the appellant. While, however, dealing with the grievance of the appellant, it needs to be borne in mind that we are, in the context of the facts of the present case, required to ascertain the validity of the impugned policy from the angle of reservation to be provided to the candidates of reserved category under the constitutional scheme.
50. The impugned policy, followed by the State of Bihar, is, in substance, allegedly to be in violation of the policy of reservation, which the Constitution of. India provides inasmuch as the constitutional scheme of providing of reservation is that the aggregate reservation, even in an academic course, cannot exceed 50 per cent of all the available seats. (See
51. It may be pointed out that the State Government''s policy is to the effect that a candidate of the reserved category, who occupies a position, in the general merit list, over a candidate of general category, would not be counted as a reserved category candidate and, consequently, the seat, which such a candidate would receive, on his own merit, would not be counted in the reserved pool if the candidate of the reserved category opts to be included in the merit list of the general category. The off-shoot of the impugned policy is that a candidate of the reserved category, who is placed, in the general merit list, in the pool of the candidates of general category, may opt to migrate from the general merit list to the list meant for the members of the reserved category on the ground that he does not receive a seat, according to his choice, in a medical college, as a meritorious reserved category candidate of the general category pool. The impugned policy further postulates that a candidate of reserved category, who is, otherwise, entitled to the allotment of a seat as a meritorious reserved category candidate belonging to the general category pool, does not receive a seat of his choice due to the fact that another candidate of the reserved category, belonging to the reserved category pool, has already opted for such a seat, then, such a meritorious reserved category candidate is permitted by the impugned policy to have a beat of his choice by migrating from the list of general category pool to the reserved category pool so as to enable him to have a seat of his choice as a candidate of the reserved category.
52. What the appellant is aggrieved by is that as a result of this policy of compensation, the seat, which was left vacant, in the general category pool by a meritorious reserved category candidate (who would have, on his own merit, been in the general category pool), is not, as a policy of compensation, allowed to be filled up by a candidate of the general category, but by a candidate of reserved category and thereby the seat, which would have, otherwise, gone to a candidate, on the basis of merit placed in the general category pool, may still be allotted to a candidate of reserved category, who may be, in the merit list, far below a candidate of the general category.
53. Thus, the impugned policy allows allotment of seats, on the basis of reservation, exceeding the permissible limit of 50 per cent of the total number of seats available, in an academic session, in a given undergraduate course, in a medical college.
54. Had such a policy of compensation not been there, the resultant effect would have been that the seat, in the general merit list, which was vacated by a candidate of the reserved category, would have gone to a candidate of the general category on the basis of his own merit and not to a member of the reserved category, who may have been, in the merit list, far below the candidate of the general category.
55. Similar policy of compensation of the State of Bihar, as the one, which we have at hand, has been struck down in M. Neethi Chandra (supra). Even the decision of the Constitution Bench, in Ramesh Kumar (supra), has clarified that when an MRC (Meritorious Reserved Category) candidate gets ''adjusted'' against the reserved category, the same creates corresponding vacancy in the general merit list. If such a vacancy, instead of being filled up, on the basis of the merit, is allotted, on a policy of compensation, to a reserved category candidate (instead of a general category candidate), then, the total strength of the candidates of the reserved category may far exceed the maximum limit of 50 per cent of reservation and such a policy of reservation would be constitutionally impermissible.
56. In the case of Ramesh Kumar (supra), the Constitution Bench has clearly pointed out, at paragraph 39, that aggregate reservation should not exceed 50 per cent of all the available vacancies. Having so indicated the permissible limit of reservation, the Constitution Bench has also observed, in Ramesh Kumar (supra), that if an MRC (meritorious reserved category) candidate is adjusted against the reserved category vacancy, and if the seat, vacated by him, in the general category, is further allotted to a candidate of reserved category, then, the aggregate reservation could possibly exceed 50 per cent of all available seats and, therefore, when an MRC (meritorious reserved category) candidate is adjusted against the reserved category, he should be counted as a part of the reservation pool for the purpose of computing the aggregate reservation pool and the seat, which such an MRC (meritorious reserved category) candidate vacates in the general pool, would have to, therefore, be offered, on the basis of merit, to the candidate of the general category and this is the viable solution, because allotment of seats, meant for general category candidates vacated by MRC (meritorious reserved category) candidate, to a relatively lower ranked reserved category candidate, would result in the aggregate reservation exceeding 50 per cent of the total number of available seats.
57. The relevant observations, appearing, in this regard, in the decision of Ramesh Kumar (supra), may be found in paragraphs 39, 42 and 46 of the report. Situated thus, it becomes clear that the impugned policy does not withstand the test of the Constitution and is ex facie violative of Article 14 of the Constitution of India. The impugned policy cannot, therefore, be sustained and has been accordingly set aside and struck down in this appeal.
