TRIPURARI SHARAN AND ANR. versus RANJIT KUMAR YADAV & ORS. on 11 January 2018

TRIPURARI SHARAN AND ANR.

v.

RANJIT KUMAR YADAV & ORS.

(Civil Appeal No. 157 of 2018)

JANUARY 11, 2018

[ARUN MISHRA ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Education/Educational Institutions – Admission to medicalcourses – Procedure to be followed in case of a MeritoriousReserved Candidate (MRC) and allotment of seat in college – Thereserved category candidate is entitled to admission on the basis ofhis merit and he will have the option of taking admission to thecolleges where a specified number of seats are kept reserved forthe reserved category – However, while computing the percentageof reservation, he will be deemed to have been admitted as an opencategory candidate and not as a reserved category candidate – Inthis manner, the number of seats in each category remains constantand the upper limit of 50% reservation is not breached.

Dismissing the appeals, the Court

HELD: 1. Often, in a competitive examination held for thepurpose of admission in technical and medical institutions etc.some candidates belonging to reserved category/categories,qualify for the higher ranking on the basis of their own merit anddepending on their performance in the common entrance test,are placed in the general merit list. Such class of candidatesbelonging to reserved categories who qualify on their own merit,to be placed in general merit list, are described as MeritoriousReserved Candidate (MRC). A MRC who goes on to occupy ageneral category seat is not counted against the quota reservedfor a reserved category candidates, but is treated as an opencompetition candidate or general merit candidate. [Para 7][177-D-E]

Indra Sawnhey v. Union of India(1992) Suppl. 3 SCC217 : [1992] 2 Suppl. SCR 454; R.K. Sabharwal v. Stateof Punjab (1995) 2 SCC 745 : [1995] 2 SCR 35 –referred to.

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A2. Two questions arise for consideration: i. Whether a MRCcan opt for a seat earmarked for reserved category? If answer isyes; what happens to the 50[th] seat which was to be allotted toMRC (i.e. 50[th] general merit candidate) had he opted for a seatmeant for the reserved category to which he belongs? In thematter on hand, it is not the case that any other candidate of theBreserved category, other than the candidate taking up the MRC’sgeneral category place in choosing general category seat, will beadjusted. A MRC in medical admissions has more marks thanthe last general merit candidate, hence he shall be treated as ageneral category candidate. Only a choice of college seats in theCreserved category is open to him. In this manner, the number ofseats in each category remains constant and the upper limit of50% reservation is not breached.[Paras 7, 12 and 13][178-F; 187- E, G]

Shri Ritesh R. Sah v. Dr. Y.L. Yamul(1996) 3 SCC 253D: [1996] 2 SCR 695 – relied onUnion of India v. Ramesh Ram & Ors. (2010) 7 SCC234: [2010] 6 SCR 698; State of Bihar v. M. NeethiChandra(1996) 6 SCC 36 : [1996] 5 Suppl. SCR 696– held inapplicable.

EAlok Kumar Pandit v. State of Assam & Ors. 2012 (13)SCC 516 : [2012] 11 SCR 87; Samta Aandolan Samitiv. Union of India (2014) 14 SCC 745 : [2013] 11 SCR1124; Dr. Anil Kumar v. State of Bihar (1998) 9 SCC405 – referred to.F3. A MRC can opt for a seat earmarked for the reservedcategory, so as to not disadvantage him against less meritoriousreserved category candidates. Such MRC shall be treated as partof the general category only. Due to the MRC’s choice, onereserved category seat is occupied, and one seat among theGchoices available to general category candidates remainsunoccupied. Consequently, one lesser-ranked reserved categorycandidate who had choices among the reserved category isaffected as he does not get any choice anymore. To remedy thesituation i.e. to provide the affected candidate a remedy, the 50[th]seat which would have been allotted to a MRC, had he not optedH

for a seat meant for the reserved category to which he belongs,shall now be filled up by that candidate in the reserved categorylist who stands to lose out by the choice of the MRC. This leavesthe percentage of reservation at 50% undisturbed. 50%reservation rule should not be breached under any circumstance.[Paras 14, 15][188-E-G]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 157 of

2018.

From the Judgment and Order dated 28.10.2016 of the High Courtof Judicature at Patna in MJC No. 3680 of 2016 in CWJC No. 16673 of2016.

WITH

C. A. No. 158 of 2018.

Shekhar Naphade, Subramoniam Prasad, Sr. Advs. Abhay Kumar,Saurabh Mishra, Himanshu, Bilal Khan, Abhinav Mukerji, Mrs. BihuSharma, Siddharth Garg, Ms.Purnima Krishna, Advs. for the Appellants.

Ms. Meenakshi Arora, Sr. Adv., Ms. Abha R. Sharma, Ms. SujeetaSrivastava, D. S. Parmar, Gaurav Sharma, Ms. Amandeep Kaur, Prateek,Dhawal, Ms. Mansi, Prashant Bhushan, Govind Jee, Ranbir Yadav, Advs.for the Respondents.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J. 1. Leave granted.

2. Judgment dated 28.10.2016 passed by the High Court of A

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AJudicature at Patna in MJC No. 3680 of 2016 in CWJC No.16673 of2016 and connected matters is called in question in these appeals. Bythe said judgment, the full Bench of the High Court answered thereference made to it by the Division Bench of the Patna High Court inthe matter of validity or otherwise of admission process for MBBS/BDS and PG courses pursuant to a circular dated 14.11.1995 of theBState Government.

3. Before proceeding further it would be pertinent to note therelevant circular i.e. circular no. 226(24) dated 14.11.1995 which readsas under:

“According to this new system, applicable with immediate effect,candidates of reserved classes, who on the basis of merit, areentitled to get admission against 50% seats of the general category,having transferred them in the list of their respective reservedclass, they will be facilitated with admission in college and subjectof their choice on the basis of their merit in at (respective) list.Thus, after transfer from one to another list, those candidates ofthat (respective) reserved class, who found place in the bottom ofthe separate list, prepared for that (respective) class, naturallywill come down and can come out of the seats available in theratio of the percentage prescribe for that (respective) reservedclass. To avoid this situation and in any case to avoid the adverseimpact on the number of seats prescribed for reserved class aftertransferring candidates of that class only into that list and so thatcandidates in the bottom of the list also could not be deprived ofadmission and so that candidates of reserves class, selected onthe basis of merit could not be deprived of being consolidated ingeneral seats. To ensure it, this system will be applicable thatafter above stated transfer, candidates at the bottom of list oftheir respective reserved class, though being at the bottom of themerit list of this list, shall be absorbed against 50% seats, availablefor general category and they shall be allotted colleges and subjectavailable for the general seats on the basis of choice in the orderof merit in that list. Thus, the list which will be prepared against50% seats, available for general category, candidates transferredby above stated method from the list of reserved class will beabsorbed in that list only and they will also be facilitated admission.”

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As per the aforementioned circular, a Meritorious ReservedCandidate (MRC) is treated as general merit candidate and is allotted aseat in the general merit category; such MRC may instead choose totake up a seat from amongst the seats earmarked for that particularreserved category to which he belongs to gain admission in the collegeof his preference; on doing so, the choice of seat in the general categoryleft by the MRC will go to a candidate of the reserved category.

4. It was contended before the Patna High Court by the appellantsthat the seat which remained unfilled because of migration/shifting of aMRC to the reserved category should be filled up by the candidatesfrom the general category list inasmuch as the MRC virtually shiftshimself to the reserved category. Per contra it was contended by thecontesting respondents that such seat should continue to be filled up bythe ousted candidates at the bottom of the reserved category list, in viewof the fact that the MRC continues to be a general category candidate.By the impugned judgment, the Patna High Court answered the referencein favour of the respondents as under:

“15. In view of the discussions above and what has been held bySupreme Court in cases of Ramesh Ram (supra) and Ritesh R.Sah (supra) we arrive at the following conclusion(s) :-

(i) There is an obvious distinction between qualifying through acommon entrance test for securing admission to medical coursesin various institutions vis-a-vis a common competitive examinationheld for filling up vacancies in various services.

(ii) This distinction arises because all candidates receive, in a caseof common entrance test held for securing admission in medicalinstitutions, the same benefits of securing admission in one of themedical institutions, in a particular course, whereas in the casecommon selection process adopted for filling up vacancies invarious services, there are variations, which accrue to thesuccessful candidates, because the services may differ in termsof status and conditions of service including pay scale, promotionalavenues, etc. Consequence of migration of an MRC to theconcerned reserved category shall be, therefore, different in caseof the admission to various medical institutions vis-a-vis selectionto various posts.

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(iii) In case of admission to medical institutions, an MRC canhave in, for the purpose of allotment of institutions, of his choice,the option of taking admission in a college, where a seat in hiscategory is reserved. Though admitted against a reserved seat,for the purpose of computation of percentage of reservation, hewill be deemed to have admitted as an open category candidate,rather he remains an MRC. He cannot be treated to have occupieda seat reserved for the category of reservation he belongs to.Resultantly, this movement will not lead to ouster of the reservedcandidate at the bottom on the list of that reserved category. Whilehis/her selection as reserved category candidate shall remain intact,he/she will have to adjusted against remaining seats, because ofmovement of an MRC against reserved seats, only for the purposeof allotment of seats.

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(iv) In the case of filling up of posts based on common competitiveselection process in different services, situation will be entirelydifferent, when an MRC opts to move to the reserved category,which he belongs to, for getting a service/post of his choice. Insuch a situation, the candidate, at the bottom of list of theconcerned category, will have to move out and the slot, in thegeneral merit list, will stand vacated, because of migration of theMRC will have to be filled up from general merit list. Otherwise,if the open seats are allowed to be filled up by candidates ofreserved categories, it will result into extending the benefit ofreservation beyond fifty percent, which is constitutionallyimpermissible.

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16. The reference is answered accordingly.”F

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16. The reference is answered accordingly.”F

While deciding the reference as mentioned supra, the full Benchof the Patna High Court has distinguished between two sets of casesviz. (a) case of securing admission to medical courses in various institutionsthrough a common entrance test; and (b) case of filling up of vacanciesin various civil services through common competitive examination.G

5. In the matter on hand, we are concerned with securingadmission to medical courses through a common entrance test and theprocedure to be followed in case of a MRC and allotment of seat incollege.

6. It was submitted by Shri Shekhar Naphade and ShriSubramonium Prasad, learned Senior Counsel, on behalf of the appellants,that the reservation cap in admissions to medical colleges cannot exceed50% in any case. They argued that a MRC migrates to the reservedcategory when he chooses a seat earmarked for the reserved category.Resultantly, the seat vacated by MRC being a general category seatmust necessarily be filled up by general category candidates.

For the respondents, Shri Prashant Bhushan, learned Counsel,supporting the decision of the Patna High Court argued that the MRCcontinues to be part of the general category even after opting for a seatin the reserved category. He contended that the reserved categorycandidate who is affected by the choice of the MRC must be given achoice of seats in the general category. Ms. Meenakshi Arora, learnedSenior Counsel, submitted that by the process adopted, the 50%reservation is not breached.

7. Often, in a competitive examination held for the purpose ofadmission in technical and medical institutions etc. some candidatesbelonging to reserved category/categories, qualify for the higher rankingon the basis of their own merit and depending on their performance inthe common entrance test, are placed in the general merit list. Suchclass of candidates belonging to reserved categories who qualify on theirown merit, to be placed in general merit list, are described, for the purposeof convenience, as Meritorious Reserved Candidate (MRC). It is bynow well settled that a MRC who goes on to occupy a general categoryseat is not counted against the quota reserved for a reserved categorycandidates, but is treated as an open competition candidate or generalmerit candidate. This Court in the case of Indra Sawnhey v. Union ofIndia, 1992 Supp (3) SCC 217 has observed thus:

“In this connection it is well to remember that the reservationsunder Article 16 (4) do not operate like a communal reservation.It may well happen that some members belonging to, say, ScheduledCastes get selected in the open competition field on the basis oftheir own merit; they will not be counted against the quota reservedfor Scheduled Castes; they will be treated as open competitioncandidates” (emphasis supplied)

Even in service matters, the same principle is made applicable.The aforementioned principle of IndraSawnhey (supra) is followed foradmissions to seats in medical colleges, and the same was followed in A

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Athe case of R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.However, the issue before us is more nuanced – whether MRC can optfor a seat earmarked for reserved category? “If answer is yes” thensince MRC exercises the option of admission to the seats in differentcolleges earmarked for reserved category candidates, should a lessmeritorious reserved category candidate who is affected by such processBbe given admission to the college left over by MRC consequently?

This would be better understood by a simplified example. Let itbe assumed that there are 100 seats available through one commonentrance examination to PG courses in various medical colleges acrossthe country. Of these, 50 are general category seats and the remainingC50 are reserved category seats. X, a reserved category candidate, isassigned rank number 50 on account of his performance in the entranceexamination. Thus he is just above the cut-off for reserved categorycandidates, and has got an open merit rank. Hence, X is a MRC; however,X being in general category is not willing to accept the seat available forDgeneral category at the time of his counselling. He wants admission inanother college of his preference which is incidentally reserved forreserved category candidates, and a seat in the same is available in thereserved category. Consequently, X chooses a seat available in thecollege meant for reserved category candidate based on his merit amongthe reserved category candidates. As he does so, one seat in the generalEcategory list of 50 candidates remains unoccupied. In that context, twoquestions arise for consideration:

i. Whether X – MRC can opt for a seat earmarked for reservedcategory?

Fii.If answer is yes; what happens to the 50[th] seat which was to beallotted to X – MRC (i.e. 50[th] general merit candidate) had he opted fora seat meant for the reserved category to which he belongs?

8. This court has repeatedly including the judgment in the case ofIndra Sawhney (supra), has concluded that the aggregate reservationGshould not exceed 50%. Therefore, even when a MRC opts for a seatreserved for reserved category candidates, caution has to be exercisedto maintain the reservation to 50%. So also it is not open for theauthorities to deny a MRC a seat in the college of his preference basedon his merit, if such seat is available at the relevant point of time and thesame is reserved for candidates of the reserved category to which theH

MRC belongs. This is because there may be instances where a MRCmay not get a seat in the institution of his choice on the basis of his ownmerit in the general merit. Under such circumstances, he may opt to betreated notionally as a candidate belonging to the reserved category onlyfor the purpose of getting a seat in the college reserved for reservedcategory students. If such MRC is to be placed in the reserved merit listof his category, he would be ranking high and may get better choice ofinstitution or course. A MRC cannot be placed in a disadvantageousposition by not permitting him to be treated as reserved candidate, asthat would amount to making him suffer for his better performance inthe competitive examination.

In the case of Shri Ritesh R. Sah v. Dr. Y.L. Yamul, (1996) 3SCC 253, this Court has had an occasion to deal with both the abovequestions. This Court held that a MRC who has opted for a seat in thecollege reserved for reserved category will not migrate/shift to reservedcategory but should be treated as part of the general category only.However, only for the purpose of getting better choice of seat in thecollege, he may opt to take a seat in the college reserved for the reservedcategory. This Court observed thus:

“17…In view of the legal position enunciated by this Court in theaforesaid cases the conclusion is irresistible that a student who isentitled to be admitted on the basis of merit though belonging to areserved category cannot be considered to be admitted againstseats reserved for reserved category. But at the same time theprovisions should be so made that it will not work out to thedisadvantage of such candidate and he may not be placed at amore disadvantageous position than the other less meritoriousreserved category candidates. The aforesaid objective can beachieved if after finding out the candidates from amongst thereserved category who would otherwise come in the open meritlist and then asking their option for admission into the differentcolleges which have been kept reserved for reserved categoryand thereafter the cases of less meritorious reserved categorycandidates should be considered and they will be allotted seats inwhichever colleges the seats should be available. In other words,while a reserved category candidate entitled to admission on thebasis of his merit will have the option of taking admission to thecolleges where a specified number of seats have been kept AB

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Areserved for reserved category but while computing the percentageof reservation he will be deemed to have been admitted as a opencategory candidate and not as a reserved category candidate.”Right from the year 1996, the law is well settled that the provisionsshould be so made that they will not work out to the disadvantage of a BMRC and he would not be placed at a more disadvantageous positionthan the less meritorious reserved category candidates. Aforementionedobjective can be achieved if, after finding out the candidates from amongstthe reserved category who would otherwise come in the open merit listand then asking their option for admission into the different colleges which have been kept reserved for reserved category, the cases of lessCmeritorious reserved category candidates are considered.

In other words, the reserved category candidate is entitled toadmission on the basis of his merit, and he will have the option of takingadmission to the colleges where a specified number of seats are keptreserved for the reserved category. However, while computing the Dpercentage of reservation, he will be deemed to have been admitted asan open category candidate and not as a reserved category candidate.

9. Shri Shekhar Naphade and Shri Subramonium Prasad, learnedSenior Counsel on behalf of the appellants, relying upon the ConstitutionBench judgment in the case of Union of India v. Ramesh Ram andOthers, (2010) 7 SCC 234, contended that a seat left over in theEgeneral category by a MRC because of his option of a seat in the reservedcategory, should be filled up by a general merit candidate and not by areserved category candidate. They relied upon paragraph 39 of the saidjudgment, which reads as follows:

“39. A significant aspect which needs to be discussed is that theFaggregate reservation should not exceed 50% of all the availablevacancies, in accordance with the decision of this Court in IndraSawhney v. Union of India, (1992) Supp 3 SCC 217. If the MRCcandidates are adjusted against the Reserved Category vacancieswith respect to their higher preferences and the seats vacated byGthem in the General Category are further allotted to other ReservedCategory candidates, the aggregate reservation could possiblyexceed 50 % of all of the available posts.”

Before commenting on the judgment of the Constitution Bench inRamesh Ram (supra), it would be beneficial if the facts and contextsreferred thereto are looked into.H

In the said matter, the Constitutional validity of Sub-Rules (2) to(5) of Rule 16 of the Civil Services Examination Rules, for the civilservices examinations from 2005 to 2007, was involved. Rule 16(2)was as follows,

“16(2) While making service allocation, the candidates belongingto the Scheduled Castes, the Scheduled Tribes or Other BackwardClasses recommended against unreserved vacancies may beadjusted against reserved vacancies by the Govt. if by this processthey get a service of higher choice in the order of their preference.”

This Court, after examining the rival contentions on record, heldthat a MRC opting for a reserved category seat should be treated as areserved category candidate, which means that he is deemed to havemigrated/shifted from the general category to the reserved category towhich he belongs once and for all, and that the vacant general categoryseat left by a MRC should be filled by a general category candidate. Itarrived at the following findings:

“50. We sum up our answers-:

i) MRC candidates who avail the benefit of Rule 16 (2) andadjusted in the reserved category should be counted as part of thereserved pool for the purpose of computing the aggregatereservation quotas. The seats vacated by MRC candidates in theGeneral Pool will be offered to General category candidates.

ii) By operation of Rule 16 (2), the reserved status of an MRCcandidate is protected so that his/ her better performance doesnot deny him of the chance to be allotted to a more preferredservice.

iii) The amended Rule 16 (2) only seeks to recognize the inter semerit between two classes of candidates i.e. a) meritoriousreserved category candidates b) relatively lower ranked reservedcategory candidates, for the purpose of allocation to the variousCivil Services with due regard for the preferences indicated bythem.

iv) The reserved category candidates “belonging to OBC, SC/ STcategories” who are selected on merit and placed in the list of A

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AGeneral/Unreserved category candidates can choose to migrateto the respective reserved category at the time of allocation ofservices. Such migration as envisaged by Rule 16 (2) is notinconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of theConstitution.”

BIn Ramesh Ram (supra), this Court has seemingly and intrinsicallyarrived at a diametrically opposite decision from Ritesh R. Sah (supra).Indeed, the aggregate reservation should not exceed 50% of the availablevacancies. While we are undoubtedly bound by Ramesh Ram (supra),the very judgment justified why it is so different from Ritesh R. Sah(supra). It categorically held that there is a distinction between selectionCand admission of PG candidates as in Ritesh R. Sah (supra), and selectionand appointment of UPSC candidates as in Ramesh Ram (supra). Whilein postgraduate admissions, the results will grant all the candidates thesame benefit irrespective of rank (i.e., admission in medical colleges),the results in UPSC selections give varying benefits to varying rank-Dholders, as the allocation of services is based on rank. This Court thusheld that in case of UPSC selections, the general category seat vacatedby a MRC to occupy a reserved category seat, must be filled up bycandidates from the general category. It also held that such MRC shouldbe counted in the reserved category (and not in the general category, asRitesh R.Sah (supra) did) in order to prevent the reservation cap fromEexceeding 50%. It would be beneficial to look into Paragraphs 31, 32, 66and 67 of Ramesh Ram (supra) for the purpose of distinguishing thesaid matter from the matter on hand and they read as follows:

“31. The respondents have also placed strong reliance on thisCourt’s decision in Ritesh R. Sah v. Dr.Y.L.Yamul (1996) 3 SCCF253). The question in that case was whether a Reserved Categorycandidate who is entitled to be selected for admission in opencompetition on the basis of his/her own merit should be countedagainst the quota meant for the Reserved Category or should hebe treated as a general candidate. The Court reached theGconclusion that when a candidate is admitted to an educationalinstitution on his own merit, then such admission is not to be countedagainst the quota reserved for Scheduled Castes or any otherReserved Category. However, it is pertinent to note that thisdecision was given in the context of admissions to medical colleges …”H

“32. There is an obvious distinction between qualifying throughan entrance test for securing admission in a medical college andqualifying in the UPSC examinations since the latter examinationis conducted for filling up vacancies in the various civil services.In the former case, all the successful candidates receive the samebenefit of securing admission in an educational institution.However, in the latter case there are variations in the benefitsthat accrue to successful candidates because they are alsocompeting amongst themselves to secure the service of theirchoice. For example, most candidates opt for at least one of thefirst three services [i.e. Indian Administrative Service (IAS), IndianForeign Service (IFS) and Indian Police Service (IPS)] when theyare asked for preferences. A majority of the candidates preferIAS as the first option. In this respect, a Reserved Categorycandidate who has qualified as part of the general list should notbe disadvantaged by being assigned to a lower service against thevacancies in the General Category especially because if he hadavailed the benefit of his Reserved Category status, he wouldhave got a service of a higher preference. With the obvious intentionof preventing such an anomaly, Rule 16 (2) provides that an MRCcandidate is at liberty to choose between the general quota or therespective Reserved Category quota.”

“66. The decision in Anurag Patel in turn referred to the earlierdecision in Ritesh R. Sah v. Dr. Y.L. Yamul. However, we havealready distinguished the judgment in Ritesh R. Sah. That decisionwas given in relation to reservation for admission to post graduatemedical courses and the same cannot be readily applied in thepresent circumstances where we are dealing with theexaminations conducted by UPSC. The ultimate aim of civilservices aspirants is to qualify for the most coveted services andeach of the services have quotas for reserved classes, the benefitsof which are availed by MRC candidates for preferred service.As highlighted earlier, the benefit accrued by different candidateswho secure admission in a particular educational institution is of ahomogeneous nature. However, the benefits accruing fromsuccessfully qualifying in UPSC examination are of a varyingnature since some services are coveted more than others.

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184SUPREME COURT REPORTS

A67. The order of CAT is valid to the extent that it relied on theratio propounded by this Court in Anurag Patel v. U.P. PublicService Commission. Even though that decision had in turn reliedon the verdict of this Court in Ritesh R. Sah v. Dr. T.L. Yamul, thelatter case is distinguishable from the present case with respectto the facts in issue. However, we cannot approve of theBconclusions arrived at in the Central Administrative Tribunal orderas it failed to take note of the unique characteristics of UPSCexaminations.”

(Emphasis supplied)

Hence it is amply clear that, the Constitution Bench makes aCdistinction between two types of selections, i.e., selection to medicalcolleges through a common entrance test, and selection to posts in servicesthrough the UPSC examination.

It is also pertinent to note that the Constitution Bench has virtuallybut impliedly approved Ritesh R. Sah (supra) insofar as the procedureDto be adopted in cases of admissions to medical colleges through acommon competitive examination is concerned. In view of the above,the principles laid down in Ramesh Ram (supra) may not be applicableto the facts of this case, inasmuch as this is a case pertaining to admissionin medical colleges and whereas Ramesh Ram (supra) pertains toEselections to the posts for services through the UPSC examination.

This Court, in the case of Alok Kumar Pandit v. State of Assam& Ors. 2012 (13) SCC 516, has reiterated that the dictum laid downin Ramesh Ram (supra) is applicable only to admission to variousservices in the UPSC.F10. Ritesh R. Sah (supra) was subsequently followed in SamtaAandolan Samiti v. Union of India, (2014) 14 SCC 745 wherein thisCourt observed thus:

“22. No doubt, while doing so, the Court in Ramesh Ram casewas of the opinion that such meritorious reserved candidatesG(MRC) who avail the benefit of Rule 16(2) of the Civil ServicesExamination Rules (which permitted such inter-se transfer) andare eventually adjustment in the reserved category, they shouldbe counted part of reserved category for the purpose of computingaggregate reservation quota. However, it was categorically statedthat this proposition applies when there is an appointment to aH

service under the State and categorically excluded the cases ofadmission in educational institutions. In so far as admission ineducational institutions is concerned, such a MRC was to continueto be treated as belonging to general category, which position heattained because of his initial merit. The Court noted that this wasso held in Ritesh R. Sah v. Dr. Y.L. Yamul (1996) 3 SCC 253.”

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“24. Since, we are concerned with the admission to medical course,aforesaid judgment squarely applies to the present case. Thus wefind that neither upper limit of 50% reservation is breached, norany rights of the Petitioners are violative or the action of theRespondents have been to their prejudice in any manner. Thus,we do not find any merit in the present petition, which is accordinglydismissed. No costs.”

(Emphasis supplied).

11. Shri Naphade and Shri Prasad also sought to rely upon thedecision of a Coordinate bench of this Court in State of Bihar v. M.Neethi Chandra, (1996) 6 SCC 36, wherein this Court observed asfollows:

“10. Let us take a situation in which in a particular reservedcategory there are x number of seats but the candidates qualifyingaccording to criteria fixed for that category are X+5 with the bestamong them also qualifying on merit as general candidates.According to the arrangement made by circular No. 20, the firstcandidate gets a choice along with the general category candidatebut being not high enough in the list, gets a choice lesser thanwhat he could secure in the reserved category to which he wasentitled. The x number of seats could then be filled up with thefour qualifying candidate being denied admission for want of seats.This would have been harsh for the best candidate as well asviolative of Articles 14 and 16 of the Constitution. On the otherhand, if the direction of the High Court is followed, the first xnumber of candidates get seats according to merit against thereserved seats but the remaining 5 will also have to be ‘adjusted’against the open seats of regular candidates. These 5 will be thosewho are not qualified according to the general merit criteria andso will necessarily displace 5 general candidates who would beentitled to seats on merit.”

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“12. In a particular year, the number of such candidates may bemuch larger and thus the method evolved by the High Court maycreate much hardship. The method will also not be in tune withthe principles of equality. Hence the method evolved by the HighBCourt will have to be struck down.

13. At the same time, as pointed out above, all is not well with theGovernment circular No. 20 as it operates against the verycandidates for whom the protective discrimination is devised. Theintention of the circular No. 20 is to give full benefit of reservationto the candidates of the reserved categories. However, to theextent the meritorious among them are denied the choice collegeand subject which they could secure under the rule of reservation,the circular cannot be sustained. The circular, therefore, can begiven effect only if the reserved category candidate qualifying onmerit with general candidates consents to being considered as ageneral candidate on merit-cum-choice basis for allotment ofcollege/institution and subject.” (emphasis supplied)

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M. Neethi Chandra (supra) was upheld by a three-Judge benchof this Court in Dr. Anil Kumar v. State of Bihar, (1998) 9 SCC 405,but to the extent that it held that a MRC should not be forced to chooseEseat from the general category. However, it needs to be mentioned thatM. Neethi Chandra (supra) may not be applicable to the facts of thiscase. In the case of M. Neethi Chandra (supra), this Court wasconcerned with a different circular altogether, i.e., Circular No. 11/K1 -1022/91-K20 (“Circular No. 20”), issued by the Government of Bihar,FDepartment of Personnel and Administrative Reforms on 07.02.1992 onthe subject of “provision for reservation for nominating (admission) ofScheduled Caste/Tribes/Backward class/Extremely Backward Class/Female into the Professional Training Institutes.” That circular waschallenged on the basis that MRCs were not allowed to choose theseats kept reserved for the reserved category. Paragraph 6 of that circularGreads as follows:

“6. As there is provision in direct appointment to the effect thatthe candidates belonging to reserved classes, who are selectedon the basis of merit, would not be adjusted against reserved seats,similarly maintaining the same arrangement here also the H

candidates selected on the basis of merit for admission intoprofessional training institutes would not be adjusted against thereserved quota for the candidates of reserved classes.”

The judgment of the High Court that was set aside by this Courtin M. Neethi Chandra (supra) had devised a completely different wayof conducting PG admissions, which was not at all akin to the presentcase. The High Court in the said matter has sought to fill up reservedcategory posts first and adjust any reserved category candidates notallotted a seat in the general category. This Court in M. Neethi Chandra(supra) summarized the method of allotment of seats adopted by theHigh Court thus, “To remove the anomalies, the High Court devised a method ofallotment of seats by which the reserved seats are offered first(i.e. before the general seats are filled) to the candidates of thereserved category on merit, and after all the reserved seats areso filled up, all other qualifying candidates of the reserved categoryare “adjusted” against open seats in the general category alongwith the general merit candidates and offered seats on merit-cum- choice basis (see para 11 of the judgment).”

12. In the matter on hand, it is not the case that any other candidateof the reserved category, other than the candidate taking up the MRC’sgeneral category place in choosing general category seat, will beadjusted. Moreover this issue is not under challenge in the present case,as both sides are admittedly not contesting the right of a MRC to choosea seat earmarked for the reserved category. On the other hand, it isfairly submitted by Shri Naphade and Shri Prasad that a MRC has got aright to choose a seat earmarked for reserved category/categories.However, they are only worried that the aggregate reservation shouldnot exceed 50%.

It follows from the cases cited above that the 50% reservationrule should not be breached under any circumstances. As mentionedsupra, a MRC in medical admissions has more marks than the last generalmerit candidate, hence he shall be treated as a general categorycandidate. Only a choice of college seats in the reserved category isopen to him. In this manner, the number of seats in each category remainsconstant and the upper limit of 50% reservation is not breached.

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A13. It is clear from Ritesh R. Sah (supra), that in the case ofadmission to postgraduate medical institutions, a MRC who chooses toavail of the option of admission to a college with seats kept for thereserved category is deemed to have been admitted as an open categorycandidate. He continues to be open category candidate. There is nomigration into the reserved category even if a MRC opts for a seatBearmarked for reserved category candidates. The lowest-rankingcandidates who qualified in the reserved category, cannot hence haveoption for colleges/seats in reserved category on account of the MRC’schoice, may be adjusted against the choices of college seats then availablein the general category left over by MRC. However such reservedCcategory candidates continue in reserved category, except for such option.Thus, by treating a MRC as a general category candidate, the numberof reserved seats remains the same, and reservations do not exceed50%. This is also consistent with the principles of equity. In view of theabove, we could not find any reason to disagree with the conclusionsreached by the full Bench of the High Court.D14. In light of the cases discussed hereinabove, both questionsare answered as follows:

i) A MRC can opt for a seat earmarked for the reserved category,so as to not disadvantage him against less meritorious reservedEcategory candidates. Such MRC shall be treated as part of thegeneral category only.

ii) Due to the MRC’s choice, one reserved category seat isoccupied, and one seat among the choices available to generalcategory candidates remains unoccupied. Consequently, oneFlesser-ranked reserved category candidate who had choicesamong the reserved category is affected as he does not getany choice anymore.

To remedy the situation i.e. to provide the affected candidate aremedy, the 50[th] seat which would have been allotted to X – MRC, hadGhe not opted for a seat meant for the reserved category to which hebelongs, shall now be filled up by that candidate in the reserved categorylist who stands to lose out by the choice of the MRC.

This leaves the percentage of reservation at 50% undisturbed.

15. We reiterate that, 50% reservation rule should not be breachedHunder any circumstance.

16. The High Court has succinctly dealt with the issue as well asthe case law on the point. It has rightly held that Ritesh R. Sah (supra)governs admissions in medical institutions. We see no reason to interfere.

17. Appeals are accordingly dismissed. No order as to costs.

Devika Gujral

Appeals dismissed.

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