Holding

Since the minimum qualifying marks were reduced by an executive order without amendment to the statutory Rules, Rule 9 could not be applied, and the appellant was entitled to admission in his reserved category.

Summary

The appellant, a son of a military personnel, secured 43.6% marks in the pre‑medical examination for admission to one of the six medical colleges in Madhya Pradesh. Under the statutory Rules, the minimum qualifying aggregate was 50% (reducible to 45% by Rule 20), and vacant seats after this reduction were to be filled by a combined merit list under Rule 9. An executive order dated 10 March 1980 lowered the qualifying aggregate to 43% for the 1979‑80 admissions, but the Board still applied Rule 9, causing the appellant to lose his reserved seat. The Supreme Court held that the executive order, not being a statutory amendment, could not override Rule 9; consequently, Rule 9 could not be applied at that stage and the appellant, having met the 43% threshold, should be admitted under the reservation provided by Rule 7. The Court allowed the appeal and directed his admission.

Issues considered

Whether an executive order reducing the minimum qualifying marks can supersede the statutory Rules, particularly Rule 9, for filling reserved seats.
Whether Rule 9 is applicable when vacant seats remain in a reserved category after the qualifying marks have been reduced by an executive order.
Whether the appellant, having secured 43.6% marks, is entitled to admission under the reservation for children of military personnel.

Subjects

reservationmedical college admissionqualifying marksexecutive orderRule 9Rule 20Madhya Pradeshmerit listArticle 14constitutional law

Judgment

186

A AMITABH SHRIVASTAVA

v.

STATE OF MADHYA PRADESH & ORS.

8 February 4, 1982

(D.A: DESAI AND A. VARADARAJAN, JJ.J

Ru/ts relating to admission to medical colleges in Madhya Pradesh dated
c 17-4-1979-Reservation of seats to certain categories-Minimum marks reduced
from 50 per c~nt in the aggregate to 43 per cent, by an ~xecutive order dated 10th
March, 1980-Stage at which the benefit ari'sing from the said executive order is
to be applied, explained-Ru/es 2, 7, 9 and 20, scope of.

There are six medical colleges in Madhya Pradesh. Admission to the first
year of M.B.B.S Course is on the basis of the qualifying examination. There
D were 720 seats in t~ose six colleges in the year 1979-80,

Under Rule 7 reservations are made for certain categories. One such is for
the sons and daughters of military personnel of Madhya Pradesh and 21 seats
in all were reserved for that category.

Under Rule 20, the qualifying marks to be obtained by Candidates other
than Scheduled Castes and Scheduled Tribes, shall be 50 per cent in the aggre-
E gate and 33 per cent in each of the subjects. In case the required number of
candidates for a·dmission are not available, according to the above percentage of
qualifying marks, the Board conducting the· pre-medical examinations under
Rule 2 shall have power to lower the marks up to 5 per cent in the aggregate for
all categories of candidates.

Under Rule 9, in case sufficient number of candidates do not qualify for
F admission under any reserved category and any seats remain vacant, such vacant
seats shall be filled by· preparing a combined merit list •of all the remaining
categories of candidates on the waiting list and the candidates shall be admitted
according to merit in the list so prepared.

The appellant who was a son of a military personnel got only 43.6 per
cent of marks in the aggregate, and he could not get a seat under the reserved
G category even after the marks were lowered to 45 per cent under Note 1 to Rule
20 by the Board. Even after that was done, 7 seats remained vacant out of 21
seats reserved for the sons and daughters of military personnel. On 10-3-1980,
the Governmeiit by an executive Order reduced the minimum aggregate to 43 per
cent. The Board, prepared a combined list under Rule 9 and applying the
minimum of 43 per cent granted admission, as per that list, and refused admission
H to the appellant. The question arose whether the selection should be based on
the combined list prepared under Rule 9 or on taking 43 per cent as the quali-
fying marks in the aggregate. ·
AMITABH v. M. P. STATH (Varadarajan, J.) 187

·Allowing the appeal by special leave, the Court, A
HELD : Since the minimum qualifying marks were reduced to 43 per cent
by an executive order without any provision therefor in the statutory rules, Rule
9 of the statutory rules could not be applied at that stage, and the appellant who
bad secured 43.6 per cent of marks in the aggregate shou1d have been ad-
mitted in the category to which he belonged. The difference between 45 per cent
in the aggregate, to - which the minimum qualifying marks were reduced uuder B
Note (1) to Rule 20 and 43.6 per cent of marks in the aggregate secured by the
appellant is so little that it could not be a valid or sufficient reason for giving a
go-bye, on the gro'und of merit, to the reservation provided for in Rule 7 of
the Rules. [194 G-H, 195 A-Bl

CIVIL APPELLAlE JURISDICTION : Civil Appeal No. 853 of
1981. c
Appeal by special leave from the judgment and order dated
4.11.1980 of the Madhya Pradesh High Court in Case Misc.
Petition No. 167 of 1980.

Shh- Dayal, P.S. Das Gupta and J.B. Dadachanji for the D
Appellant.

Gopal Subramaniam and S.A. Shroff for the Respondents.

The Judgment of the Court was delivered by
E
VARADARAJAN, J. This appeal by special leave is directed
against the judgment of K.K. Du~e. J. of the Madhya· Pradesh
High Court in Writ Petition No. 167 of 1980, with whom the
learned Chief Justice of that High Court had agreed· on a difference
of opinion between the learned Judge and A. R. Navkar, J. The F
petition filed .under Article 226 of the Constitution was for the
issue of a writ, order or direction for the writ petitioner's admission
into one of the medical colleges in Madhya Pradesh for the M .B.B.S.
course, commencing in the academic year 1979-80. After hearing
the learned counsel for the parties we allowed the appeal by a brief
order on 14.1.1982 without any order as to costs, on account of the G
urgency of the matter, reserving our reasons to be given later, and
directed the respondents to admit the appeHant to the M.B.B.S
course for the academic year 1981-82 for which admissions are
admittedly goipg on even now. We are presently giving reasons.
H
The. Government of Madhya Pradesh,. Public Health and
Family Welfare Department, have framed Rules on 17.4.1979 for
188 SUl>REME COU!tt .REPORTS (J982] :l S.C.R.

A admission into the Medical, Dentistry and Ayurvedic Colleges in
the State. In this appeal we are not concerned with the Dentistry
and Ayurvedic Colleges. There are six Medical Colleges in the
State of Madhya Pradesh affiliated to different universities. There are
720 seats for admission into the first year course in those six colleges. '
Rule 5(l) of the aforesaid ~ules, hereinafter refer to as the Rules,
B lays down that no candidate shal.1 be admitted to the M.B.B.S. course
unless he has passed the B.Sc. Part I (three years degree course •
Medical Grouj>) examination of the recognised universities of the
State with Physics, Chemistry, Biology (Zoology and Botany) or
any examination of any other university or board recognised as
equivalent thereto with practical tests in each subject provided the
c candidate has passed in each of those subjects in theory and practi:
.cal separately. Under rule 6 of the Rules no candidate shall be
admitted to the medical college unless he completes the age of
17 years on the 31st December of the year of ailmission to the
college. Rule 1(3) provides for the pre-medical examination being
held every year for selection of candidates for admission to the
D medical colleges in the State and says tbat all admissions to those
colleges have to be made only from the merit list prepared on the
basis of the result of that examination except in the case of seats
placed at the disposal of the Government of India or other States.

Under Rule 7 certain number of seats have to be reserved for
E
specific categories of candidates passing the pre-medical examination
as below:

I. Fifteen percent shall be reserved for women candidates;

2. Fifteen percent shall be reserved for each of the cate-
F gories of Scheduled· Caste and Scheduled Tribes
candidates;

3. Seats not exceeding 3 percent may be reserved for
children of military personnel who have to produce the
necessary certificates.
G .,
Apart from those reservations, under Rule 8 seats not exceeding 3
per cent are reserved for nominees of the Government of India and
three seats are reserved for candidates nominated by the Govern-
ment of Jammu and Kashmir in consideration of three seats reserved
H in the medical colleges in that State for candidates of. the State of
Madhya Pradesh.
AMITABH v. M. P. STATE (Varadarajan, J.) 189

Under Rule 20, selection of candidates from amongst those A
who had appeared and qualified in the written rexamination shall
be made strictly on merit as disclosed by the total number of marks
obtained by a candidate in the pre-medical examination. The quali-
fying marks for admission shall be 50 per cent in the aggregate and
, 33 percent in each of the subjects. For Scheduled Castes and
Scheduled Tribes candidates the minimum qualifying marks shall be B
45 per cent in aggregate and 30 per cent in each of the subject. In
case the required number of candidate for admission are not avail-
able according to the above percentage of qualifying marks the
Board conducting the pre-medical examination under Rule 2 shall
have power to lower the marks up to 5 per cent in the aggregate for
all categories of candidates. If even with the relaxation granted by c
the Board, as above, required number of candidates in the categories
of Scheduled Castes and Scheduled Tribes are not available for
admission the Government has power to grant special relaxation in
the maximum qualifying marks to the extent considered necessary.

Under Rule 9, in case sufficient number of candidates do not D
qualify for admission under any reserved category and any seats
remain vacant, such vacant seals shall be filled by preparing a
combined merit list of all the remaining categories of candidates
on the waiting list and the candidates shall be admitted according
to merit in the list so prepared.
E
It is not necessary to refer to any of the other rules for the
purpose of this appeal.

Indisputably, the appellant belongs to the third category of
seats reserved under Rule 7 as he is a son of a military personnel
settled in Madhya Pradesh. Sons and daughters of military personnel F
of Madhya Pradesh are entitled to 21 seats in all out of 720 seats
available in the six medical colleges in the State. As per the mini-
mum number of qualifying marks prescribed in Rule 20, namely,
50 per cent in the aggregate and 33 per cent in each of the subjects,
children of military personnel secured only 8 seats, and 13 seats in
that category rem·ained vacant and all other categories secured only G
361 seats and 338 seats of those categories remained vacant. The
appellant did not qualify for admission on the basis of the marks
specified in Rule 20 for the academic year I 979-80. Then the Board
applied Note(!) to Rule 20 which provides for lowering the mini· H
mum qualifying marks upto 5 per cent in the aggregate ',for all cate-
godes of candidates. After that w&s done 6 more candidates
190 SUPREME COURT REPORTS [I 982) 3 S.C.R.

A belonging to the category of sons and daughters of military per-
sonnel and 274 more candidates belonging to all other categories
secured admission and 7 seats belonging to the category of children
of military personnel and 64 seats of all other categories remained
vacant. Even then the appellant could not secure admission as he
bad secured only 43.6 per cent of inarks in the aggregate and 33 per
B cent in each of the subjects in· the pre-medical examination and in
the merit list prepared according to rule 9 he ranked 74 and only
71 candidates in that 'list could be admitted on the basis of merit.

Then the Madhya Pradesh Government issued an executive
notification dated IO March, 1980 regarding relaxation of qualifying
c marks for the purpose of admission to the medical colleges. That
notification is to the effect that for the year 1979-80 candidates who
have obtained at least 43 per cent of marks in the aggregate in the
pre-medical examination shall be· admitted to the medical colleges
in the unfilled seats on the basis of merit according to the rules.
Ordinarily, the appellant who had secured 43.6 per cent of marks in
D the aggregate in the pre-medical examination and another candidate
in the category of children of military personnel should have got
admission after the lowering of the minimum qualifying marks to
43 per cent in the aggregate, leaving 5 seats in that category still
vacant. But Rule 9 was applied and a combined list of all the
remaining categories on the waiting list was prepared and the candi-
E dates were admitted according to merit in the list so prepared and
consequently the appellant who belongs to the category of children
of military personnel and had secured 43.6 percent of marks in the
aggregate in the pre-medical examination could not secure admission.
These facts are not in dispute.
F
The appellant filed a writ petition for the aforesaid relief
contending that as minimum qualifying marks have been reduced
by the Notification dated 10.3.1980 to 43 per cent in the aggregate
and as he had secured 43.6 per cent marks he should have been
given admission in the category to which he belongs. The writ
G petition was at first heard by K.K. Dube and A.R. Navkar, JJ.
A.R. Navkar, J, who decided in favour of the appellant, had
observed in his judgment thus :

"The reduction of percentage of marks for admission
H by the Government ·on J0.3.1980 (Annexure II) clearly
shows that the candidates who got 43 per cent of marks
AMITABH v. M. P. STATE (Varadarajan, J.) 191

will be eligible· for admission. There is no dispute that A
the petitioner got 43.6 per cent of marks in the pre-medical
examination. Therefore, applying this order of reduction
of qualifying marks (Annexure II), I am of the opinion that
the right of the petitioner for admission in the medical
college cannot be defeated by resorting to Rule 9 of the
Rules. As mentioned above, Rule 9 of the Rules, in my B
opinion, is a mandatory one. It says, 'if any seats remain
vacant, such vacant seats shall be filled in by preparing a
combined merit list of all the remaining categories of candi-
dates on waiting list. This was not done when the percent-
age of marks for admission was reduced from 50 per cent
to 45 per cent for all categories. Therefore, in my opinion, c
. it cannot be done to defeat the right of the petitioner .. .'I
:.-·
am of the opinion that the present petitioner cannot be
denied his right of admission to the med1r.al college if he
is otherwise eligible to get admission. Denial of admission
to him by purporting to act on the strength of Rule 9 of
the Rules, in my opinion, will not be justified and will D
amount to denial to him the protection given to him by
Article 14 of the Constitution. The result, therefore, is
that the petition deserves to be allowed ... "

But K.K. Dube, J. who took the opposite view has, after extracting E
notification dated 10.3.1980, observed in his judgment thus:

"The reduced qualifying marks limit is only for filling
up the vacant seats and the notification does not seek to
\ <
amend Rule 20 or substitute 43 per cent for 50 per cent
F
marks in th·e· aggregate as minimum qualifying marks limit
laid down under Rule 20. Indeed, the notification does
not state that the reduced qualifying mljrks limit is in
substitution of the one provided in Rule 20. That being
the position, Rule 9 would necessarily operate, and it is for
selecting from amongst the candidates for the number of
G
seats remaining vacant by operation of Rule 9. The peti-
tioner's contention would have some substance if Rule 9
was not there. The effect of Rule 9 is to wipe out the
reservation for admission to any of the reserved categories.
The main idea is that the best candidates be given admission H
to the medical colleges. The reservation is for the purpose
of securinlJ a co1wession and must operate in a like manner
192 SUPREME COURT REPORTS [1982] 3 s.c.R.

A
as provided in the Rules. The reservation is riot absolute,
and, therefore, when the minimum qualifying marks were
reduced to 43 per cent it was only for filling up the vacant
seats as obtained by operation of Rule 9 of the Rules,
according to the merit in the combined merit list. We are
B unable to agree with the contention that the reduction in
the eligibility to 43 per cent in the Government notification
dated March 10, 1980 could be availed of by the petitioner
and other similar candidates for filling up the 7 vacant
seats in the reserved quota of the children of military
personnel".
c
The learned Chief Justice before whom the matter came up
on account of the difference of opinion between the two learned
Judges who originally heard the writ petition, as mentioned above.
while agreeing with K.K. Dube, J, has observed in his judgment
thus:
D
"When even on reduction of qualifying marks under
Note (i) the required number of candidates do not qualify
for admission under any reserved category and seats remain
vacant, Rule 9 begins to apply and as directed by that
Rule "such vacant seats sliall be filled in by preparing a
E
combined merit list of all the remaining categories of
candidates in the waiting list and the candidates shall be
admitted according to the merit in the list so prepared".
At this stage there is no further scope for reservation. In
oiher words, the reservation comes to an end after the
required number of candidates in a reserved category do
F
not become available on reduction of qualifying marks in
the aggregate by the Board in exercise of its power under
Note (i) to Rule 20. It is generally expected that there
would be a long waiting list of qualified candidates in the
general category who would be available for filling in the
G seats transferred from a · reserve category to general cate-
gory. In 1979, however, it so happened that there were
vacancies in the general category, that is, there were not
sufficient number of qualified candidates who could have
exhausted the general category under Rule 9. It is at this
H stage that the Government issued the order dated I 0th
March, 1980. It is in the interpretation and application
pf this order that difference of opinion has arisen. The
AMITABH v. M. P. STATE (Varadarajan, J.) 193

order.has not been issued under the Rules. It is an inde- A
pendent order. The order does not expressly refer to any
reservation. The order directs selection of candidates for
vacant seats on the basis of ·merit from those who had
secured aggregate marks up to 43 per cent. The order was
passed at a stage when the reserved categories had come to
an end under Rule 20 read with Rule 9 as sufficient B
number of candidates were not available. In my opinion,
therefore, Dube, J. was right in holding that the order
dated 10th March, 1980 did not bring back the reservation
and selection had to be made on the basis of a combined
merit list for all the vacant seats irrespective of whether
they originally belong to any reserved category......... C

There is yet another important factor to be taken
notice of. Not only the vacancies in the reserved category
of children of military personnel but there were also
vacancies in the category of women to be filled in on the
D
basis of a combined merit list and no reservation was at
all allowed in working out the order of 10th March, 1980.
The way in which this order was applied by the Board had
apparently the approval of the Government and no other
candidate excepting the petitioner has come forward to
challenge its application. As already pointed out, the
E
order is not a statutory order. It is an order passed by the
State Government in the exercise of its executive power.
The Government's approval of the manner in which the
Board has applied the order goes to show that that was
the intention of the Government in passing the order. F
Although the approval of the Government of a particular
mode of application of an order is not decisive of its
meaning and it is for the Court to decide the correct
meaning, still when the meaning of an order which is purely
executive is in doubt the way in which it has been applied
by all concerned is a relevant factor to be taken into account G
in deciding its true meaning .. The uniform application of
the order by the Board with apparent approval of the
Government for filling in all the vacant seats, goes a long
way to show that the Government intended that the order
should be applied ~y preparing a common merit list without H
continuing the reservations. In these circumstances, evefl
if the interpretation P\lt forw!\l"~ by the learned counsel fof
I

194 SUPREME COURT REPORTS (1982] 3 S.C.R

A the petitioner and accepted by Navkar, J. can he accepted
as a possible interpretation of the order, it would not be
right for me to hold that it conveys the true ipeaning".

We are inclined to agree with the conclusion reached by. A.R.
B Navkar, J., though for different reasons. The matter is simple.
. Under Rule 20, the minimum number of marks prescribed for
admission into the Medical Colleges in the State is 50 per cent in
the aggregate and 33 per cent in each of the subjects. On that
· basis, out of the total of 720 seats available in all the six medical
colleges in foe State only 8 out of 2 l of the category of soris and
c daughters of military personnel, and only 361 out of 699 available
for all other categories could be and were admitted in the academic
year 1979-80. Rule 9, which has been relied upon by the respon-
dents as well as by K. K. Dube, J. and the Chief Justice says that
in case sufficient ~number fof candidates do not qualify for ad-
mission under any reserved category, barring, of course, the category
D of Scheduled Castes and Scheduled Tribes candidates, and any seats
remain vacant, such vacant seats shall be filled by preparing a com-
bined merit list of all the remaining categories of candidates on the
waiting list and the candidates shall be admitted according to merit
in the list so prepared. But that Rule was not appllied by the res-
pondents and could not be applied under the circumstances of the
E case when 338 seats in all other categories and 13 seats of the
category of sons and daughters of military personnel could not be
filled in 1979-80 on the basis of the said minimum number of
qualifying marks, namely, 50 per cent in the aggregate and 33 per
cent in each of the subjects. Then Note (1) to Rule 20 providing
for lowering of the qualifying marks upto 5 per cent in the aggregate -
F for all categories was' applied. Even then 64 seats of all other cate-
gories and 7 seats of the category of sons and daughters of military
personnel could not be filled and remained vacant. Then the Govern-
ment by an executive order issued the notification dated 10th
March, 1980 reducing the minimum qualifying marks to 43 per cent
in the aggregate, and it is only at this stage Rule 9 was applied with
G
the result that in the category of sons and daughters of military
personnel only 2 more candidates could secure admission and 7
seats of that category had to be filled by other categories. We are
of the opinion that since the minimum qualifying marks were
H reduced to 43 per cent by an executive order without any provision
therefor in the statutory rules, Rule 9 of the statutory rules could
pot be applied at that stage, and that the appellant who had secured
AMITABH v. M. P. STATE (Varadarajan, J.) 195

43.6 per cent of mai:ks in the aggregate should have been admitted A
in the category to which he belongs. We think that the difference
between 45 per cent in the aggregate, to which the mifiimum quali-
fying marks were reduced under Note {If to Rule 20 and 43.6 per
cent of marks in the aggregate secured by the appellant is so little
that it could not be a valid or sufficient reason for giving a go-bye,
on the ground of merit, to the ·reservation provided for in Rule 7 B
of the Rules. The appellant deserves to be admitted even for this
reason. In these circumstances we are unable to agree with the
view taken by K.K. Dube, J. and the Chief Justice, and we agree
with the conclusion reached by A-.R. Navkar, J. The appeal is
accordingly allowed without any order as to costs. As already·
C'
directed the appellant shall be admitted to the M.B.B.S. course for
the academic year 1981-82 in the ~ategory mentioned in Rule 7
(3) (c) of the Rules.

S.R. Appeal allowed.
D
•

,.