P. D. KUDAL, J. - (1.) THROUGH the above mentioned four writ petitions the petitioners have claimed their right of admission to the M. B. B. S. Course on the basis of the decision of this Court in Writ Petition No. 463 of 1977 : Miss Rajshri Shah vs. The State of Rajasthan. Though, these writ petitions were to be disposed of by a single bench, but they were taken up for hearing before a Division Bench as the State had filed an appeal against the decision of the Hon'ble Single Judge in Writ Petition No. 463 of 1977 (Miss Rajshri vs. The State of Rajasthan). As the common questions of law and facts were involved in these writ petitions, these were also directed to be heard along with the Special Appeal filed by the State against the decision of the Hon'ble Single Judge in Writ Petition No. 463 of 1977. The Special Appeal and five other similar writ petitions have already been disposed of, as the petitioners in these writ petitions secured admission in the M. B. B. S. Course either as a consequence of the directions of this Court, or that they appeared in the subsequent examinations and secured admission. Under these circumstances, only the present four writ petitions have been left which are being disposed of by this single order. In these writ petitions the question involved is, whether the petitioners have been rightly refused admission to the Medical Colleges in the State which are run by the State Government.
(2.) INSTRUCTIONS for the guidance of the candidates intending to appear at the Pre-Medical Test were issued by the Registrar, University of Rajasthan, Jaipur. The Medical & Health Department framed rules of admission to the Medical College in Rajasthan for the Session 1977-78. Rule 2 of the said Rules reads as under : - "2. Reservations : (a) Fifteen seats are reserved for Foreign Private students, cultural scholars and private students of Indian origin domiciled abroad. Nomination of cultural Scholars will be made by the Director General of Health Services, New Delhi and nomination of others will be made by the Union Ministry of External Affairs, Ministry of Health, New Delhi. 3 seats will be kept in each Medical College at Bikaner/udaipur/ Ajmer/jodhpur/jaipur. The nominations should be made latest by 31st July, 1977 unless otherwise extended by the Government. (b) Five seats are reserved for the students migrated from Burma and other countries, in or after the year 1963 and registered in Rajasthan (one in each Medical College ). (c) 8% seats are reserved for natural born candidates belonging to the Scheduled Castes and 6% for natural born candidates belonging to the Scheduled Tribes as notified in the Presidential Order for the State of Rajasthan and who fulfil conditions as laid down in rule 3 below. These reservations in each category will also include the candidates belonging to the Scheduled Castes/scheduled Tribes who are admitted on merit for the general seats. A candidate must produce a certificate signed by an officer not below the rank of District Magistrate/additional District Magistrate in proof of his/her being a natural born Scheduled Castes/scheduled Tribes person as notified in the Presidential Order for the State of Rajasthan and that he/she fulfils conditions as laid down in rule 3 below. The reservation mentioned above can be interchanged if sufficient number of candidates are not available to fill up the sates reserved for Scheduled Caste or Scheduled Tribes candidates. Such seats will be filled up by suitable candidates from Scheduled castes and vice versa If the number of qualified candidates belonging to S. C. /s. T. is not sufficient to cover the above reservation a maximum of 10 reserved seats in a year may be carried forward to subsequent year. (d) 25% of the seats (excluding seats reserved in clause (a) and (b) of rule 2 are reserved for girl candidates. If eligible and suitable girl candidates from Scheduled Casts/tribes are not available, these sates will be filled upby the male candidates of Scheduled Caste/scheduled Tribes. But in any case the overall total number of seats for girl candidates must be 25% of the total seats excluding seats, reserved under clause (a) and (b) of Rule 2. (e) In case, the reserved seats are not filled in a particular category, the unfilled seats will be transferred to general seats. " Sub-clause (a) of 0-268 of the University of Rajasthan reads as under: - " (a) A candidate who has passed the First Year Science Examination of the Three-year Degree Course (Pass/hons) of the University or the Intermediate Examination in Science of the University (conducted before 1958) or of the Board of Secondary Education, Rajasthan or any other examina-lion recognised by the University as equivalent thereto in all the compulsory subjects and the optional subjects of the medical group (Physics, Chemistry and Biology) including English with a minimum of 50% marks in the subjects of the medical group shall be eligible for admission to the First M. B. B. S. Course provided in the event of entrance to the First M. B. B. S. Course being regulated by holding a Pre-Medical Test, a candidate for admission to the First M. B. B. S. Course shall be required to have passed the qualifying examination mentioned above and to obtain at least 50% marks at the Pre-Medical Test. Candidates who have appeared at the qualifying examination and whose results of the qualifying examination, are not declared before the commencement of the Pre-Medical Test may be given provisional permission to appear at the Pre-Medical Test subject to their passing the qualifying examination. The natural born Scheduled Caste and Scheduled Tribe students may be given a relaxation of 5% in the minimum marks required at the qualifying examination or in the Pre-Medical Test as the case may be.- Provided further that the candidates for admission to the First Year M. B. B. S. Course must have been attained the age of 17 years at the time of admission to the College or will attain it on the 1st of December, of the year of admission to the College. " The total number of seats which were initially available for admission were fixed at 550. Out of these seats 15 seats were reserved for the nominee of the Government of India; 5 for students from Burma and other countries; 44 seats for the candidates belonging to the Scheduled Casts being 8% of the total number of the seats of 550; 33 seats for the candidates for Scheduled Tribe being 6% of the total seats of 550, and the remaining 453 seats were general seats. According to the provisions of 0-268 students belonging to the Scheduled Castes and Scheduled Tribes were given a concession of 5% marks i. e. they were eligible for admission if they secured 45% marks while the candidates other than belonging to the Scheduled Caste and Scheduled. Tribes had to secure a minimum of 50% marks. A Medical Council is constituted under sec. 3 of the Medical Council Act, 1956. In sec. 15 of the said Act it has been provided that a medical qualification mentioned in the schedule would be sufficient qualification for enrolment on the State Medical Registrar. Sec. 16 of the said Act provides that a duty has been enjoined by every University and/or Medical Institution in India; which grants a recognised medical qualification to furnish such information as the Council may from time to time require as to the courses of study and examination to be undergone in order to obtain such qualifications. Sec. 19a of the said Act prescribes the minimum standard of medical qualification: - "19 - A, Minimum standards of medical education: - (1) The council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (Other than post-graduate medical qualifications) by Universities or Medical Institutions in India. (2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of copies aforesaid. (3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit. " The Medical Council in exercise of its powers conferred on it under sec. 33 of the Indian Medical Council Act, 1956 with the approval of the Central Government made the following regulations for admission to the M. B. B. S. "selection of candidates: (a) To be eligible for appearing for the competitive entrance examination a candidate should have obtained not less than 50% of the marks in the science subjects at the qualifying examination, or at a higher University examination. Scheduled Castes and Scheduled Tribes students may be given a relaxation of 5% in the marks required for sitting at the entrance examination. Provided that where the results of the qualifying examinations are not declared before the competitive entrance examination, such candidates who have appeared in the qualifying examination may be allowed to appear in the competitive entrance examination but that no such candidate should be admitted to medical college unless he has passed in the qualifying examination and secures at least 50% marks in the competitive examination. In case of Scheduled Castes/tribes candidates, they should not be admitted to a medical college unless they secure 45% marks in the competitive examination. (b) Where the candidate is selected on the basis of performance at the qualifying examination, without having to appear at the competitive examination, then he should have obtained not less than 50% of the marks in the science subjects at the qualifying examination, or at a higher University examination. Scheduled Castes and Tribes students may be given a relaxation of 5% in the marks required. " These regulations were circulated by the Secretary, Medical Council of India, Temple Lane, Kotla Road, New Delhi vide his letter No. MCI-7 (l)/76-Med/8171 dated 9-6-1976 to all concerned and at the foot thereof the fallowing was further appended: - "i may further point out that the above recommendations of the Council, having been approved as regulations under the provision of India Council Act, 1956, have become mandatory and the State Government, Universities, Administrative Authorities of the medical college, ete. are therefore requested to kindly ensure that these are strictly adhered to. "
(3.) THE convener of the Admission Board and Principal, S. M. S. Medical College and Controller of attached hospital, Jaipur announced the selection of candidates for admission to the Medical College. THE gist of this list is as follows: - List No. Date Foreign Burma S. C. S. T. Total Boys Girls Boys Girls Boy Girls I 10-9-77 __ 1 17 3 7 95 202 325 II 1-10-77 - - 1 - 1 30 100 132 III 4-10-77 - - - - - - 1 1 IV 31-10-77 - - 1 - - 2 1 4 V 23-11-77 - - (25) (3) (9) - 19 56 1 19 (25) 3+ (3): 8+ (9) 127 323 518 The basic bone of contention between the parties is that as the candidates belonging to the Scheduled castes and Scheduled tribes with a minimum of 45% markes were not available, certain seats reserved for them remained unfilled. The petitioners' claim is that in pursuance of Rule 2 sub-clause (e), those seats ought to have gone to the quota of general seats, and the candidates not belonging to the Scheduled Castes and Scheduled Tribes were entitled to be admitted on those seats provided they fulfilled other conditions. The contention of the State Government is that with a view to give more and better educational facilities to the persons belonging to the Scheduled Castes and Scheduled Tribes the minimum percentage of marks were 'owered from 45% to 35% and the seats were tilled in by those candidates who had secured the minimum 35% mirks. It was also contended that a telegram dated November 21, 1977 was received from the Government of India authorising the State Government to admit those candidates belonging to the Scheduled Castes and Scheduled Tribes who had secured the minimum of 35% marks. The telegram is reproduced hereunder - "s. C. /s. T. candidates secured up to 35% marks in the qualifying examination may as a special case be admitted to M. B. B. S. in your State to fulfil S. C. /s. T. quota without increasing total number of seats. " It was also contended that amongst the eligibility of the candidates one of the conditions was contained in the proviso which reads as under ; - "provided that if even by affording this relaxation the reservation quota for S. C. /s. T. is not complete, the Board of Admission may consider in consutlation with the University candidates belonging to S. C. /s. T. who might have secured upto 66% of the lowest marks obtained by any candidate in the Pre-Medical Test who might be selected for admission in that particular year. " ;