Judgment:
B.N. Deshmukh, J.
1. Rule in Writ Petition No. 2779 of 1992 and Writ Petition No. 2780 of 1992, returnable forthwith. The learned Assistant Government Pleader waives service on behalf of the respondents in both these petitions. Rule taken up for hearing along with Writ Petition No. 1431 of 1992 and Writ Petition No. 1478 of 1992.
2. These four petitions raise common question of law based on the interpretation of Rules of Admission framed by the State Government for admission of students to the First Year M.B.B.S. Course for the year 1992-93. All the four petitioners in these petitions had applied for admission to the First Year M.B.B.S. Course broadly in the category of Wards of Serviceman and Ex-Servicemen, for whom reservation of seats in Government Medical Colleges in the State is provided for under the said Rules for Admission.
3. The main part of the relevant Rule B(3) which is required to be considered is to the following effect :
'Out of the above seats one seat per institution shall be allocated to ward of armed forces personal transferred to the Maharashtra area within a period of one year prior to receipt of application. For such candidates the conditions regarding domicile and passing of qualifying examination from Maharashtra shall not apply ...'
4. The controversy in these petitions is centred round the part of this rule which provides for allotting one seat per institution to the ward of armed forces personnel who is transferred to the Maharashtra area 'within a period of one year prior to receipt of application.' This change regarding transfer within a period of one year is introduced for the first time in these rules for admission. Previously, there was no such restriction regarding transfer within one year.
5. It may be noted that the condition regarding domicile within the State was already taken away by the rules for admission framed for the year 1990-91. Similarly, the condition regarding passing of qualifying examination from Maharashtra is further taken away by the rules of admission framed for the year 1991-92 even in cases of armed forces personnel transferred to the Maharashtra area.
6. Writ Petitions Nos. 1431 of 1992 and 1478 of 1992 relate to wards of armed forces personnel transferred to Maharashtra area beyond the period of one year prior to making of the application. Therefore, the modification in the rule to the extent of transfer to Maharashtra area within one year is challenged in these petitions.
Shri Talekar, learned Counsel for the petitioners in these two petitions, challenged the rule regarding restriction of one year placed for transfer on several grounds. According to him, the restriction of one year imposed in the rule is unreasonable and has no nexus with the object, as well as between the admission of the ward and the transfer within a period of one year. This provision is further challenged on the ground of doctrines of promissory estoppel and the legitimate expectations, as the restriction of one year was not there in the rules when the concerned personnel was transferred to Maharashtra State.
7. Shri Gangapurwala, learned Assistant Government Pleader, invited our attention to a decision of this Court in Writ Petition No. 2849 of 1992 (Bombay) - Kumari Sheetal D. Sharma v. Dean, Govt. Medical College, Miraj and another, delivered on 17th July, 1992 by the Division Bench consisting of Puranik & Patankar, JJ. In that case, this very provision regarding restriction of period of one year is considered. The Division Bench has observed:
'... In our opinion, the relief granted under the impugned sub-rule is only in the exigencies of sudden or very recent transfer to Maharashtra from outside when it is not possible to pass through a qualifying examination from Maharashtra or to obtain domicile certificate...'
The Division Bench has not accepted the challenge to this sub-rule on the basis of unreasonableness as the provision was brought into existence to meet the cases only of exigencies of sudden and very recent transfers to Maharashtra from outside when it is not possible to pass through the qualifying examination for the ward from Maharashtra or to obtain the concerned domicile certificate.
8. The decision in Kumari Sheetal's, case (supra) was challenged by Shri Talekar on the ground that there is no ratio laid down by the Court in the decision and the case is proceeded only on the peculiar facts of that case. For that, he has relied upon decisions of the Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur, : AIR1989SC38 ; Andhra Kesari Educational Society v. Director of School Education and others, : AIR1986SC987 . Much reliance was placed on the observations of the Supreme Court in Gurnam Kaur's, case (supra) to the effect that :
'One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the types of dicta. Mere casual expression carry no weight at all. Not every passing expression of a Judge, however aminent, can be treated as an ex cathedra statement, having the weight of authority.'
9. There cannot be any dispute about the proposition laid down in Gurnam Kaur's, case (supra). However, the observations of this Court in Kumari Sheetal's, case cannot be said to be casual. In fact, the Court was called upon to consider the very provision which is challenged before us. The challenged based on unreasonableness of the restriction of one year is dealt with by the Court. The observations of the Court in that case, therefore, cannot even be said to be not necessary for the decision of the case. In fact, the whole case was decided in the light of the challenge to the relevant rule for admission to the M.B.B.S. course for the current year, i.e. 1992-93. The observations in Kumari Sheetal's, case, therefore, will have to be treated as binding, as they fall within the four corners on which the principles of ratio descended are made applicable.
10. Apart from the ratio laid down in Kumari Sheetal's, case (supra), we have also considered the relevant rule and challenges to the same on various grounds.
11. To consider the challenge based on the doctrines of promissory estoppel and legitimate expectations, we may refer to the Full Bench decision of this Court in Ashwin Prafulla Pimpalwar and others v. State of Maharashtra, : AIR1992Bom233 , wherein it is held that the doctrines of promissory estoppal as well as of legitimate expectation are not applicable to admissions for post-graduate medical courses. The factual basis for the application of these doctrines is not made out in the petitions by he petitioners. The transfer itself was not made to enable the ward of armed forces personnel to get admission to M.B.B.S. course nor there is evidence to show that the transfer of armed forces personnel was sought for enabling the wards to get admission to M.B.B.S. course. The transfers probably were in routine course and have no nexus with the admission of the ward to M.B.B.S. course on the basis of the relevant rules. One of the essential requirements to invoke the doctrine of promissory estoppel is that one party by his word or conduct made to the other has to make a clear and unequivocal promise or representation which is intended to create a legal relation or affect the legal relation in future, having regard to the dealings which have taken place between the parties. There is not a single circumstance pointed out to indicate that the transfer has taken place because of any promise given by authorities regarding the application of the rule for admission of students in this category for the M.B.B.S. course in the current year. It is very difficult to accept the challenge on the basis of these two doctrines, having regard to factual aspects in these matters.
12. Shri Talekar has advanced yet another argument. According to him, the rule regarding transfer was made to give benefit to active armed forces personnel. The reservation carved out is by clubbing the wards of servicemen and ex-servicemen together. Because of this clubbing together in one category actually the benefit of reservation is being derived only by the wards of ex-servicemen and the wards of servicemen were practically left out. In the working of the rule, therefore, according to him, the benefit, which was expected to be given to the wards of active armed forces personnel is being denied.
13. We may mention at the outset that such a challenge is not there in any of the petitions at all. However, even on merits, we fail to understand how such an argument is capable of being entertained in the matter of reservations in favour of class or classes of people clubbed together. The framers of the said Rules in their wisdom have thought it fit to carve out a class by clubbing together. Merely because the candidates or wards of ex-servicemen in a given year were getting admission more in number than the wards of servicemen, the relevant rule cannot be said to be unreasonable or cannot be said to be incapable of being given effect to. The rule as such cannot be said to confer the benefit on the members or class or classes in whose favour the reservation is carved out.
14. There is no material produced before us to indicate that in effect since inception of reservation in favour of this category of wards of servicemen and ex-servicemen, the rule has worked out adversely to the interests of the wards of servicemen. In the absence of any material, it would not be proper to dilate further on this aspect of the matter.
Apart from this, it is not the function of the Court to consider the mini or micro division or classification in the categories carved out by the framers of the rule. It is for the framers of the rules themselves to consider this aspect.
15. Similar challenge based on mini and micro division is considered by the Supreme Court in several cases. In A.B.S.K. Sangh (Rly.) v. Union of India, : (1981)ILLJ209SC , it is observed (Para 99, P. 329) :
'The argument that there are rich and influential harijans who rob all the privileges leaving the serf-level sufferers as suppressed as ever. The Administration may well innovate and classify to weed out the creamy layer of SCs/STs but the Court cannot force the State in that behalf.'
So also, in the State of Kerala v. T.P. Roshana and another, : [1979]2SCR974 , it is observed by the Supreme Court that the minute and microcosmic classifications should be avoided. These observations were based on a decision in the State of J. & K. v. Shri Triloki Nath Khosa and others, : (1974)ILLJ121SC , wherein it was categorically observed :
'Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straight-forward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality.'
16. In view of this, it is not open for us to enter into the micro and mini division or classification which is already provided for in the rules framed in favour of armed forces personnel, which are inclusive of wards of servicemen and ex-servicemen.
17. We, therefore, do not find any reason to hold that any part of the relevant sub-rule is unreasonable including the restriction provided for the transfer of armed forces personnel within one year prior to making of application for admission to First year M.B.B.S. course.
18. Now, we are required to consider the claims of the petitioners not only in the two writ petitions, but all the four petitioners on the basis of common merit list. The common merit list is produced with affidavit in reply in Writ Petition No. 1431 of 1992. As per the merit list, the petitioner Miss Rajati (in W.P. No. 1431 of 1992) is at Sr. No. 27, while the petitioner Miss Rashmi (In W.P. No. 1478 of 1992) is at Sr. No. 41. As there are only two seats available and there are several candidates above these two petitioners, they are not entitled for admission to the First year M.B.B.S. course on the basis of merit in that category itself.
19. Petitioner Deepak Shinde (in W.P. No. 2779 of 1992) and petitioner Miss Joyee Catharine (in W.P. No. 2780 of 1992) are at Sr. Nos. 11 and 12 in the merit list. They are claiming those seats on the basis of merit. According to them, the candidates above them from Sr. Nos. 1 to 10 are already admitted or their claims for admission were considered, even though some of them might not have joined. For the present two vacant seats, therefore, they claim admission having their Sr. Nos. 11 and 12 in the merit list.
Shri Gangapurwala has stated on the basis of merit list that candidate at Sr. No. 2 - P.P. Patil - is not given admission as he has remained absent and candidate at Sr. No. 24 - L.J. Jadhav - is entitled to be admitted in view of the fact that he falls in the category of transfer of armed forces personnel within one year and if one seat in that institution is to be given on preferential basis to this candidate, then he is entitled for admission. The counsel for the petitioners Deepak and Miss Joyce (in W.Ps. Nos. 2779 and 2780 of 1992) has contended that both the candidates at Sr. No. 2 - Patil and Sr. No. 24 - Jadhav had remained absent on the relevant date. Therefore, it will have to be presumed now that they have lost their claim in future for admission.
Shri Gangapurwala on instructions has stated before us that the common merit list was merely displayed on the Notice Board and notice calling the people for interview was also merely displayed on the Notice Board. No individual notices were given to any candidate. He has further stated that no personal notice is contemplated under the rule, nor any such practice is followed with regard to admission of the candidates in this particular category.
It is common knowledge that after finalisation of admission for First year M.B.B.S. course for other categories, or, for that matter, for admissions to Engineering, B.Ed. and D.Ed. courses in the State, not only the names are displayed on the Notice Board, but the candidates are personally intimated to appear before the authorities on the relevant date for getting admission. This procedure is not followed in the present case, but the list was merely published on the notice board and no personal notice or intimation regarding admission was sent to any candidate.
20. We deprecate the practice of not sending a personal notice or intimation to the concerned candidate and mere displaying the names on the Notice Board. As there is a keen competition going on for admission to M.B.B.S. course, it is obligatory on the authorities not only to notify the names on the Notice Board in respect of the candidates who are selected for admission as per the merit, but such candidates should be personally intimated regarding interview on a particular date. As there is an admitted communication gap in the present case, we cannot ignore the claim of the candidate at Sr. No. 2 - P.P. Patil - on the basis of merit and also having regard to the application of the rule regarding transfer within one year. Merely because this candidate as also the candidate at Sr. No. 24 - L.R. Jadav have remained absent for the interview on the relevant date, it cannot be said that they have forfeited their claim for admission now for non-appearance on the relevant date.
21. A useful reference can be made in this regard to the decision of the Supreme Court in State of Kerala v. T.P. Roshana, (supra), wherein it is held that benefit of reliefs granted by Court may be extended to those affected persons who did not move the Court while dealing with claims under Articles 32 and 226 of the Constitution.
22. The objection, if any, based on factual aspects regarding claim of admission of these two candidates, viz., Jadhav and Patil, and in particular in respect of Shri L.R. Jadhav (Sr. No. 24 in the merit list) in connection with transfer within one year can be considered by the authorities themselves, if such objection has remained to be considered by the authorities before giving admission to candidate at Sr. No. 24 - Jadhav. The admission of candidate at Sr. No. 2 - P.P. Patil - is unaffected in any manner and he is entitled for admission straightway.
23. We, therefore, direct the authorities to offer admission to P.P. Patil (Sr. No. 2 in the merit list) by sending communication personally to him, apart from notifying on the Notice Board.
So also, we direct the authorities to offer admission to Shri L.R. Jadhav after considering the objection, if any, as narrated above.
The claim of the petitioners in Writ Petition Nos. 2779 of 1992 and 2780 of 1992 shall be considered only if the above two candidates, P.P. Patil and L.R. Jadhav, do not accept the offer or Shri Jadhav is further found to be not entitled for the benefit of the relevant rule. The claims shall be considered strictly in accordance with the merit list.
We are told that the final dates of admission are already over. As there is likelihood of two seats going waste, which is not desirable, we direct the authorities to give admission to the students as mentioned above, even though the last date of admission is already over.
The respondents shall comply with the above directions within one month from the date of receipt of writ of this Court. Writ to be sent forthwith.
With the directions, the four petitions are disposed of with no order as to costs.