CHAUHAN, J. - (1.) THE instant petition has been filed by the petitioner for issuing a direction to the respondents to implement the Policy of Reservation in favour of the female candidates and to include the name of the female candidates securing higher marks than the marks obtained by the last selected candidate in the general category for admission in M. B. B. S. Course and for transferring the peti- tioner from Bachelor of Dental Surgery (B. D. S.) Course to M. B. B. S. Course.
(2.) THE factual gamut of the case reveals that a test was held in June, 1997 for admission in various courses in medical college and the admission had to be made as per the provisions contained in the Book-let issued by the respondents University which provided for the Policy of Reservation and Quota of Seats in favour of various categories of the students. THE relevant part of the said Policy was contained in Clause (2) (f), which reads as under :- "25% of the seats excluding the seats reserved under Sub- Clauses (a) to (e) above, are reserved for girls candidates. " Sub-clauses (a) to (e) of Clause 2 provided reservation for other candida- tes, i. e. , natural-born candidates belonging to Scheduled Castes and Scheduled Tribes, sons and daughters of Defence Personnel, nomination under the Central Pool, seats for being filled-up by All India Entrance Examination to be conducted by an agency of Government of India, etc. , with which we are concerned here. Petitioner was one of the candidates who appeared for the examination. The result was declared on 12. 8. 97. As the petitioner had been shown much below in the merit list, she has been given the B. D. S. Course and the last candidate who had been selected in M. B. B. S. Course in general category, had secured 858 marks. The grievance of the petitioner is that the Policy of Reservation has not been implemented as required under the law and if all the female candidates, who had secu- red more marks than 858, are admitted in M. B. B. S. Course in general category, he other female candidates securing lesser marks must have been given admission in the reserved category. Mr. J. P. Joshi, learned counsel for the petitioner has placed reliance on the judgment of this Court passed in Miss Charu Agrawal vs. State of Rajasthan & Ors. (1); and Ranu Vyas vs. University of Rajasthan & Ors. (2), wherein reliance has been placed upon a large number of judgments, particularly Kumari Shikha Choudhary vs. State of Rajasthan & Ors. (3); Asif Hamid vs. State of Jammu & Kashmir (4), and came to the conclusion that the object of reservation does not appear to be that even when the candidates of the reserved category are meritorious over the candidates of general category, they can be refused admission. Similarly, if meritorious candidates of certain reserved categories are available over the candidates of general category then they should be considered in general category and not in reserved category and it was held that first the general category seats have to be filled-up from the Common List and the remaining seats are to be offered to the reserved category candidates after scrutinising the record of the candidates belong- ing to reserved categories, excluding those candidates of reserved category who secured more marks than the marks secured by the last selected candidate in general category. Mr. S. G. Ojha and Mr. J. M. Bhandari, learned counsel for the respondents, did not dispute the proposition of law that if reserve category candidates secure higher marks and can be admitted in general category, such candida- tes be admitted in general category, and then the reserved seats should be filled-up from the remaining candidates belonging to the reserved categories. Thus, there is a substance in these arguments of Shri Joshi that if the female candidates, who had secured more marks than the last selected candidate in the general category, had been considered and admitted in general category, the candidates like petitioner ought to have been admitted in the M. B. B. S. Course rather then in B. D. S. Course and there can be no justification in not implementing the reservation policy by the respondents. However, the question does not arise: what can be done at such a belated stage ? Mr. Joshi has submitted that the petitioner is persuing the B. D. S. Course and in the first year, there is a common course for M. B. B. S. and B. D. S. Courses and it is a plain and simple case of transfer from one course to another. In the fact-situation of the case, the respondents be directed to transfer the petitioner from B. D. S. to M. B. B. S. Course. I am afraid, it is not such a plain and simple case as the law does not permit for such an exercise. It is settled proposition of law that the Court cannot consider the claim of only those candidates who have approached it for the reason that writ court cannot give and must not give preference irrespective of merits. The circumstance that petitioner has filed the writ petition, the similarly aggrieved persons may be more meritorious than the petitioner, would not justify the relief to the petitioner by ignoring others who are higher than the petitioner in the merit list. In the State of Kerala vs. Kumari T. P. Rosana (5), the Apex Court considered this aspect and observed as under :- "the root of the grievance and the fruit of the writ are not individual but collective and while the "adversary system" makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the Court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary. Selection of these thirty students will not be confined to those who have moved this Court or the High Court by way of writ petition or appeal. The measure is academic excellence, not litigative persistence. It will be thrown open to the first thirty strictly according to merit measure by marks secured. "
(3.) THE same view has been expressed by the Apex Court in Ajay Hasiya vs. Khalid Majid Sohrawandi (6); and Punjab Engineering College, Chandigarh vs. Sanjay Gulati & Ors. In Thappter Institute of Engineering and Technology, Patiala vs. Abhinav Taneja & Ors. (8), the Apex Court considered a case where the High Court had issued directions to admit the students who had approached the writ Court, ignoring the merit of the students who had not approached the Court. THE Hon'ble Supreme Court observed as under :- "the High Court should have directed only two students to be admitted and that too on merit. admittedly, there were more meritorious students than the respondents, waiting in queue. THE High Court, thus, travelled beyond its jurisdiction and not only directed more stu- dents then the institute could absorb but, also, students who were less meritorious, to be admitted. No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so per-encptorily which has resulted in injustice, both to the appellant-institution as well as to the students who stood higher in merit than all most all the respondent-students. We refrain from making any further comment on the impugned judgment. " Similarly, general directions were issued to give benefit to the students strictly in accordance with the merit, in Srawan Kumar & Ors. vs. Director General of Health Services & Ors. In K. C. Sharma & Ors. vs. Union of India & Ors. (10), a Constitution Bench of the Hon'ble Supreme Court has considered the aspect of giving benefit to a particular person and refusal to grant such benefit by the High Court to other similarly situated only on the ground that they had approached the Court at a belated stage. The Apex Court held that in such a case the judgment has to be rendered in rem and benefit of the judgment should be given to all other similarly situated persons. Thus, in view of the above, issuing direction to transfer the petitioner from B. D. S. to M. B. B. S. Course, ignoring the claim of other candidates who had been over and above the petitioner in the merit list, would be without jurisdiction of this Court and no such relief can be granted, as it would run counter to the law laid down by the Hon'ble Supreme Court and, thus, would violate the mandate of the provisions of Article 141 of the Constitution of India. In Nand Kishore vs. State of Punjab (11), the Apex Court has held that the Court "as a wing of the State, is by itself a source of law. The law is what the Court says it is. " Mr. Joshi, learned counsel for the petitioner has pointed- out that such directions had been issued by this Court in the cases of Ranu Vyas and Charu Agrawal (supra ). This Court had issued such directions in the aforesaid two cases as the above referred to judgments of the Hon'ble Supreme Court had not been brought to the notice of this Court and the judgments of this Court remained per incuriam. ;