1. The petitioners herein have prayed to direct the respondent authority to implement the reservation policy in true spirit from and amongst 40 seats providing 15% reservation and accordingly to reserve 6 seats for Scheduled Caste category and 3 seats for Scheduled Tribe category in the State of Gujarat.
2. The facts in brief as stated in the petition could be set out as under:
2.1 The petitioner in Special Civil Application No. 11400 of 2012 had passed Bachelor of Ayurveda & Medicine & Surgery in the year 2010. After having passed the said exam, the petitioner applied for the course of M.D. Ayurveda. The petitioner cleared the entrance test for the same and was placed at Serial No. 3 of the merit list which is published for the Scheduled Caste Category.
2.2 It is the case of the petitioner that earlier three seats were reserved for Scheduled Caste category students of Gujarat State whereas at present after the new Rules framed for the year 2012-13 with regard to only Scheduled Caste and Scheduled Tribe category, the reservation has been reduced to only one seat.
2.3 As a result of same, the petitioner has been denied admission for the course of M.D. Ayurveda. Being aggrieved by the said action, Special Civil Application No. 11400 of 2012 has been preferred.
2.4 Similarly, the petitioner in Special Civil Application No.
13311 of 2012 completed his BAMS course in April 2011 from Gujarat Ayurved University, Jamnagar and completed his internship in June 2012. The petitioner applied for the course of M.D. Ayurveda. The petitioner cleared the entrance test for the same and was placed at Serial No. 20 of the merit list which is published for Gujarat quota. The respondents no. 2 &
3 filled up 15 seats from the open merit list and did not recommend admission to any seat out of its quota of three seats. The State Government instead asked the respondent no. 2 to fill the three seats through open merit list. It is the case of the petitioner that the respondent no. 2 & 3 granted admission to two candidates but did not fill up the third vacant seat. Being aggrieved by the said action, Special Civil Application No. 13311 of 2012 is preferred.
3. Mr. Digant Joshi, learned advocate appearing for the petitioner in Special Civil Application No. 11400 of 2012 submitted that there are 40 seats in total for Post Graduate students in M.D. Ayurveda and the said seats are divided equally between the State of Gujarat and Government of Inida. He submitted that however with regard to Scheduled Caste reserved category, the sears are not divided equally and that there are separate division made on all India basis and State of Gujarat basis which is illegal and improper.
3.1 Mr. Joshi submitted that as per the eligibility, Seat Bifurcation for M.D. /M.S. (Ayu) for the year 2011-12 was as under:
3.2 Mr. Joshi submitted that however for the year 2012-13 new Rules have been framed with regard to only SC & ST category. He has drawn the attention of this Court to the new bifurcation of seats as per the new rules for the year 2012-13 which is as under:
3.3 Mr. Joshi submitted that by making this bifurcation three seats which were reserved for Scheduled Caste category has now been reduced to one seat. He submitted that the bifurcation of seats is made on the basis of Reservation Policy of State of Gujarat i.e. 7.5% for the State of Gujarat. He submitted that once 15 seats are reserved for the State of Gujarat, the same principle also applies to Scheduled Caste category also meaning thereby from and amongst All India reservation of 6 seats(15%), 3 seats must be reserved for the State of Gujarat for Scheduled Caste category.
3.4 Mr. Joshi further submitted that as per the Lease Deed annexed by the respondent at Item No. 2(i), it is clear that All India character of the University is required to be maintained by reserving 50% of the seats for post graduate classes every year and therefore the Government of India while establishing the Central Institute has established the same on All India basis. He submitted that the Central Institute of Research was established by the Central Government and therefore giving only 7.5% reservation on the basis of roster to Gujarat candidates is illegal.
3.5 Mr. Joshi has drawn the attention of this Court to the Central Educational Institutions (Reservation in Admission) Act, 2006 more particularly clause 2(d)(iv) and submitted that there should be 15% reservation for Scheduled Caste category out of the annual permitted strength in each branch of study and accordingly out of 40 seats for the course in question there should be 6 seats reserved for Scheduled Caste category candidates. He submitted that the brochure issued for the year 2012-13 is therefore not only contrary to the P.G. Regulations but also the Central Act.
3.6 In support of his submissions, Mr. Joshi has relied upon a decision of this Court in the case of Public Service Commission, Uttaranchal vs. Mamta Bisht and Others reported in (2010) 12 SCC 204.
4. Mr. ND Joshi, learned advocate appearing for the petitioner in Special Civil Application No. 13311 of 2012 submitted that the action of respondents no. 2 & 3 in not filling up the vacant 3rd seat of Government of Gujarat quota by operating open merit list is arbitrary and illegal. He submitted that the respondents have erred in not appreciating the fact that all the seats earmarked for reserved category are already filled in during the counselling held on 18.07.2012 and therefore subsequently, all the vacant seats are required to be filled up strictly on merit and by operating the open merit list. He submitted that no seat can be treated as earmarked for reserved category subsequent to 18.07.2012.
5. Mr. Siraj Gori, learned advocate appearing for respondent no. 1, 3 to 5 supported the stand of the respondents and submitted that the petitions are filed at a belated stage and therefore deserve to be dismissed in limine. He submitted that after taking part in the process of selection knowing fully well about the bifurcation of seats for the year 2012-13, the petitioners are not entitled to challenge the criteria or process of selection.
5.1 Mr. Gori submitted that the Institute for Post Graduate Teaching & Research in Ayurveda is an integral part of Gujarat Ayurved University, Jamnagar and is managed by Gujarat Ayurved University as per the Gujarat Ayurved University Act, 1965, Statute and Regulations. He has drawn the attention of this Court to a letter dated 27.09.2011 addressed on behalf of Government of India (pertains to discussion in a case of an employee who had approached this Court by way of a service matter) wherein also it is mentioned that Institute for Post Graduate Teaching & Research in Ayurveda is an institute to be managed by the Gujarat Ayurved University as per the rules of University and Government of Gujarat.
5.2 Mr. Gori further submitted that on a close scrutiny of clause 2(d)(iv), the institutions which are governed by the Central Act will be governed by The Central Educational Institutions (Reservation in Admission) Act, 2006, more particularly clauses 2 or 3. He submitted that as the institute is not covered under these clauses, the contention of the petitioner that brochure for 2012-13 is illegal may not be accepted.
5.3 Mr. Gori also submitted that as per clause 2(i) of lease deed the University undertakes to maintain its All India character by agreeing to reserve 50% of the seats for post graduate classes every year to be filled up from amongst suitable candidates outside the State provided the candidates conform to the qualifications prescribed by the lessee from time to time for admission.
5.4 Mr. Gori submitted that in the preamble of the chapter on reservation (Book on Changes in Reservation Policy for SCs, STs & OBCs by Dr. G.S. Somawat) it is clearly mentioned that the reservation should be maintained as per the proportion of population representation of the concerned State. He submitted that therefore the Government of Gujarat as per the population of the state maintains the reservation of 15% for Scheduled Tribe and 7% for Scheduled Caste category.
5.5 Mr. Gori further contended that as far as the contentions of petitioner in Special Civil Application No. 13311 of 2012 is concerned, as per the provisions in PG Regulation 03, when Government of Gujarat surrenders the seats due to non availability of suitable candidates, then these seats are to be filled in as per the provisions of P.G. Regulation 3(C)(ii). He submitted that however P.G. Regulation 3(C) (ii) provisions are subject to the provisions in clause (I) of this regulation which includes the reservation for SC/ST also.
6. Mr. MTM Hakim, learned advocate appearing for respondents no. 6 & 7 submitted that the reservation in the admission process for Graduation as well as Post Graduation courses in almost all disciplines particularly connected with Health Care and Medicine is required to be maintained and governed as per the population ratio of that particular class. He has drawn the attention of this Court to the Gujarat University Admission Notice for Post Graduate Medical Courses (other than D.M. /M.Ch) 2012 wherein also clause 15 mentions the same reservation ratio.
6.1 Mr. Hakim has drawn the attention of this Court to the data highlights of Scheduled Tribe and Scheduled Caste categories as per 2001 Census and submitted that it can be seen that the population of Scheduled Tribe category was 14.8% of the total population of the State. Similarly, the population of Scheduled Caste category was 7.1% of the total population of the State.
6.2 Mr. Hakim submitted that in view of the post graduate regulations for the State of Gujarat the percentage ratio applied for reservation is 15% for Scheduled Tribes and 7% for Scheduled Castes. He submitted that therefore the contention of the petitioner for application of reservation as applied at National/Central level cannot be accepted as the population ratio of the respective categories of Scheduled Tribes and Scheduled Castes within the State of Gujarat does not correspond to National/Central population.
6.3 Mr. Hakim contended that if the contention of the petitioners is accepted, it shall not be in the interest of either side. He submitted that if 50% reservation is made applicable, it will frustrate the very object of the reservation and the states with higher population of Scheduled Tribes will be effected. He submitted that therefore the brochure published on the basis of state quota is just and proper.
7. Having heard learned advocates for both the sides and having perused the papers on record, it is borne out that the Government of India had established the Institute for Post Graduate Teaching & Research in Ayurveda in 1956 as its own department. However, after the establishment of Gujarat Ayurved University in 1970, Government of India and Government of Gujarat signed a lease deed with Gujarat Ayurved University which is on record. The Government of India parted from the campus after handing over all its properties and employees of the institute to the University. Since then the Institute is managed by Gujarat Ayurved University with 100% central funding from the Government of India.
8. As per clause 2(i) of the lease deed the University undertakes to maintain its All India character by agreeing to reserve 50% of the seats for post graduate classes every year to be filled up from amongst suitable candidates outside the state provided the candidates conform to the qualification prescribed by the lessee from time to time for admission to post graduate courses and also by agreeing to provide instructions in the post graduate classes in English, Hindi and Sanskrit.
9. In this context it shall also be relevant to consider the order dated 27.09.2011 bearing No. R-12015/03/2011-NI from the Government of India which is in context of a service matter filed before this Court. The relevant part of the averments in para 4 of the order dated 27.09.2011 reads as under:
“... As such, being an Institute under Gujarat Ayurved University which has been constituted under the Gujarat Ayurveda University Act, 1965, the IRGTRA is being administratively controlled by the Act. ...”
9.1 Therefore, considering the aforesaid coupled with the brochure of the Institute, it is clear that the institution is covered under the State Act. Therefore the contention of Mr. Digant Joshi with regard to Central Educational Institutions (Reservation in Admission) Act, 2006 shall not be applicable.
10. From the records, it is borne out that as per 2001 census the population of Scheduled Tribes was 14.8% of the total population of the State and that of Scheduled Caste was 7.1% of the total population of the state. It is the case of the respondents that after receiving representation from a Scheduled Tribe candidate in 2011 and in consultation with Roster Liaison Officer of the Institute, the roster points for Gujarat State were drawn as implemented in the Gujarat State which is 15% for Scheduled Tribe and 7% for Scheduled Caste. Even in the preamble of the chapter on reservation (Book on Changes in Reservation Policy for SCs, STs & OBCs by Dr. G.S. Somawat) it is clearly mentioned that the reservation should be maintained as per the proportion of population representation of the concerned State.
10.1 The applied percentage of reservation from amongst Scheduled Tribes and Scheduled Castes categories is akin to the population of the respective categories within the State of Gujarat. If the Central ratio of apportionment of percentage is singularly adopted throughout the country without variation of the representative population, the same would result in absurdity as the population of the respective categories of Scheduled Tribes and Scheduled Castes in the entire country is at variance fluctuating to extremes. The different figures of the ratio of population at central stage and the corresponding population of the respective categories of Scheduled Tribes and Scheduled Castes is a glaring example of the same.
11. The contention that all throughout the earlier to the present academic year the percentage of reservation as applied at the national level was applied and the same has not be continued is also devoid of any merits. Merely because earlier the correct and justifiable percentage of reservation which commensurates with the population within the State was not applied, it cannot be a ground to continue the same particularly when the percentage of reservation which commensurates the ratio of population within the State is required to be applied.
12. As far as the contention of Mr. ND Joshi, learned advocate for the petitioner in Special Civil Application No. 13311 of 2012 is concerned, the same cannot be accepted. It is required to be noted that as per the provisions in the P.G. Regulation 03, when Government of Gujarat surrenders the seats due to non-availability of suitable candidates then these seats are to be filled in as per the provisions of P.G. Regulation 3(C)(ii) subject to the provisions in clause (i) of this regulation which includes the reservation for SC/ST also.
12.1 The three seats allotted to the Government of Gujarat were non stipendary seats as per the provisions of P.G. Regulation 3(C)(iv) and when they are surrendered to admission committee for admission from open merit then they become stipendary. Therefore when any seat reserved for specific purpose is surrendered to general pool then it is to be added in general pool and accordingly reservation points are to be redrawn.
12.2 In the present case also three seats surrendered by Government of Gujarat were added to general pool of Gujarat State quota as per the provisions of P.G. Regulation 3(C) (ii) and roster points were redrawn as per the provisions of P.G. Regulation 3(C) (I). The admissions on these seats were done on 20.09.2012 in which one seat was allotted to general candidate, one to SEBC candidate and one seat is kept vacant for SC/ST subject to decision of this Court in Special Civil Application No. 11400 of 2012. Accordingly, the admission committee has taken action in accordance with the provisions.
13. Even otherwise, after taking part in the process of selection knowing fully well the fresh bifurcation of seats this year, the petitioners are not entitled to challenge the criteria or process of selection. Surely, if the petitioners' name had appeared in the merit list, they would not have challenged the selection process. The petitioners invoked jurisdiction of this court under Article 226 of the Constitution of India only after they found that they were not eligible for the seat. This conduct of the petitioners clearly disentitle them from questioning the selection. The petitions therefore do not call for any interference by this Court and accordingly deserve to be dismissed.
14. In the result, petitions are dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(K.S. JHAVERI, J.) Divya//