V.P. Tipnis, J.
1. As these writ petitions raise common questions of facts and law and particularly the interpretation of rules for selection to the M.B.B.S. and B.D.S. Courses for the year 1995-96 issued by the Government of Maharashtra and as identical reliefs are claimed in these petitions, we have heard these petitions together and we are disposing of all the petitions by this common judgment.
2. For the sake of convenience, we will shortly narrate the facts in Writ Petition No. 2729/95. The petitioner in this petition passed her 12th Standard examination conducted by Amaravati Regional Board in the month of March 1995. For the purpose of admission to medical courses, she secured 272 marks out of 300. The State of Maharashtra has framed rules governing admissions to the Dental and Medical Colleges in the State. According to the rules, the Competent Authority is the Director of Medical Education and Research, Bombay. It is the Competent Authority, which controls selection process under the rules. There are also Designated Authorities for prescribed University areas as specified in Annexure 'A' to the rules. The Designated Authorities under the control of Competent Authority, distribute application forms, receive filled forms, scrutinise the forms and publish University area-wise (regional) merit list. In the present case, respondent No. 3 Dean, Indira Gandhi Medical College, Nagpur is the Designated Authority for admission to Medical Colleges in Amravati region. So far as Amravati region is concerned, there is one private recognised Medical College, namely, Dr. Punjabrao Deshmukh Memorial Medical College, Amravati with the total intake capacity of hundred students and the Government Medical College, Yeotmal with admission capacity of fifty students. In addition, fifty seats in MAEER'S Medical College, Talegaon Dabhade, Pune are also allotted to Amravati region. Said MAEER'S Medical College is a private unrecognised Medical College. The present petition relates to admission against payment seats for the first M.B.B.S. Course, which are available only at Dr. Punjabrao Deshmukh Memorial Medical College, Amravati and the said Talegaon Dabhade Medical College. As per Rule 4.1.1. of the rules for admission, fifty per cent of the seats at the private Medical Colleges are treated as free seats and balance fifty per cent seats are treated as payment seats. According to the rules as framed, five per cent of the total seats at the private Medical Colleges are allotted to the students, who are non-resident Indians and admissions to these five per cent seats are done by the Colleges themselves and the Competent Authority or the Designated Authority has no control over the same. Under Rule 5.1.0 of the rules, out of the seats at the disposal of the Competent Authority, seats are reserved for Backward Classes and other Backward Classes in the percentage provided in the rules.
3. The petitioner could not get selected for open merit seats or free seats either in the Government Medical College or in the Private Medical College and she had indicated her willingness against the payment seats also. Before the admissions could be finalised, the Apex Court by an order dated 31.7.1995 stayed the process of selection till it decides the matter pending before it. Ultimately, the matter namely, an interlocutory application in Writ Petition (C) No. 317/93 and other connected matters were disposed of by order dated 11.8.1995. Amongst other things, the Apex Court increased the seats for NRI. Students from five per cent to total fifteen per cent under the aforesaid order. According to petitioner, result was that so far as Dr. Punjabrao Deshmukh Memorial Medical College, Amravati is concerned, out of fifty payment seats, fifteen seats were allotted to NRI quota and thus, only thirty-five seats were available at the disposal of the Competent Authority, and out of twenty-five payment seats at Talegaon Dabhade College allotted to Amravati region, seventeen seats were available for allotment at the disposal of the Competent Authority as eight seats would be allotted to NRI quota. After the judgment of the Apex Court referred to above, the Competent Authority published a revised programme of admission against payment seats on 30th August 1995. On 1st September 1995, students in the merit list at Nos. 3001 to 3300 were to be interviewed at Bombay. The petitioner was also accordingly interviewed at Bombay. However, she was not allotted any payment seat. She, therefore, opted to be placed on the waiting list and accordingly, she was placed on the waiting list and her number at the waiting list is at serial No. 3.
4. The chart published by the Competent Authority on 30th August 1995 was displayed on the Notice Board. The chart shows that as a result of the judgment of the Supreme Court, insofar as respondent No. 4 College is concerned, out of fifty payment seats, fifteen seats have been allotted to NRI quota and only thirty-five seats are at the disposal of respondent No. 2. Therefore, in terms of provisions of Rule 5.1.0, seats for the Backward Classes ought to have been reserved by the Competent Authority by percentage laid down in the rules out of only thirty-five seats. However, chart shows that twenty-five seats have been allotted to the candidates belonging to Backward Classes and only ten seats are available for open merit category. Similarly, in case of Talegaon Dabhade College where out of twenty-five seats available for Amravati region, eight seats have been allotted to NRI quota and out of seventeen seats, thirteen seats have been allotted to backward Classes, thus only four seats are available for the open category candidates. It is contended that as per provisions of Rule 5.1.0, only fifty per cent seats out of the seats at the disposal of the Competent Authority could be reserved for Backward Classes and, therefore, out of thirty-five seats, the seats reserved for the Backward Classes could not be more than eighteen seats and the remaining seventeen seats ought to have been made available to the open merit category. It is contended that if seats are allotted in the aforesaid manner, petitioner being at serial No. 3 in the waiting list, would be entitled to admission to payment seat in the respondent No. 4 College. The submission is that not more than fifty per cent of the seats could be reserved for the Backward Classes. In any event, the rules specifically provide for fifty per cent of seats to be reserved for the Backward Classes and as in fact the seats reserved for Backward Classes are much more than fifty per cent, the said reservation is contrary to and violative of guarantees under Articles 14 and 15 of the Constitution of India.
5. The petitioner filed this petition in this Court on 7th September 1995 and on the next day, notice before admission returnable after four weeks was granted and rule on interim stay was also made returnable on 13th September 1995. It appears that by order dated 14th September 1995, Division Bench after hearing the parties, specifically rejected the prayer of the petitioner for keeping seats vacant or making the admissions subject to decision of the petition. It appears that thereafter on 6th November 1995, rule was made returnable on 5th December 1995. Thereafter, at the behest of the parties, we fixed the matter along with four other similar petitions and the matter was heard on 1st February 1996. On that day, considering that the petition is likely to affect those students, who are admitted in the reserved seats for Backward Classes, we granted leave to the petitioner to amend the petition by impleading all the students belonging to Backward Classes, who are likely to be affected and the petition was peremptorily fixed for hearing along with other petitions on 13th February 1996.
6. Though no returns are filled in this petition, the factual situation, excepting the particular College, etc. relevant in some of these cases, is identical. Therefore, we have taken into consideration, with the consent of the parties, returns filed in other petitions. Accordingly, Director of Medical Education and Research, Bombay and Dean, Government Medical College, Nagpur have filed a return in Writ Petition No. 3278/95. It is contended therein that the Government, under the rules, prescribed five per cent seats as quota for NRI students as per order passed by the Hon'ble Supreme Court of India in Writ Petition No. 317/93 on 14.5.1994. However, by order dated 11.8.1995 passed in the aforesaid writ petition, the said quota was raised to fifteen per cent by the Apex Court for the year 1995-96. It is specifically contended that the constitutional reservation in favour of Backward Classes is charged on the total intake capacity of the College. Accordingly, the reservation for Backward Classes shown in the charge is absolutely proper. It is stated that out of hundred seats available in the private College, fifty seats are free seats and fifty seats are payment seats. Out of these fifty free seats, twenty-five seats, i.e. fifty per cent have been reserved for the constitutional reservation and twenty-five seats have been distributed at the ratio of seventy per cent and thirty per cent to regional and State merit list respectively. Out of fifty payment seats, twenty-five seats have been reserved for the fifty per cent constitutional reservation and out remaining twenty-five seats, five per cent seats, i.e. five seats have been allotted to NRI quota and remaining twenty seats have been distributed in the ratio of seventy per cent and thirty per cent to the regional and State merit lists. However, the Hon'ble Supreme Court by its order dated 11.8.1995, raised the NRI quota to fifteen per cent for the year 1995-96 and consequently, seats for open merit category have been reduced. It is reiterated that the constitutional reservation is to be charged on the total intake capacity. The respondent No. 4 in Writ Petition No. 3278/95, namely, Dean, J.N. Medical College, Savangi, District : Wardha has filed a return stating that he is not responsible for the excessive reservation, if any. Though he has supported the petitioner in his contention, he has further contended that result of prayer of petitioner is increasing the number of seats in the sanctioned strength of the respondent College and in such cases, the Medical Council of India is a necessary party and the petitioner having not joined Medical Council of India, the petition is liable to be dismissed. One of the affected students impleaded as respondent No. 19 to the petition has filed a return and contended that respondent No. 19 having obtained 243 marks in the relevant PCB group is having more marks than the petitioner and respondent No. 19 was selected and allotted a seat in J.N. Medical College, Savangi and as such, respondent No. 19's position cannot be affected and petition is, therefore, liable to be dismissed as against her. The respondent no. 4 College has also filed a pursis stating that five students, who were admitted in the reserved category, have left the College after the cut off date, College has admitted other five students in their places.
7. We have heard the respective Counsel for the parties at length. Shri Deshmukh, the learned Counsel for petitioner, contended that petitioner has come to the Court immediately after publication of the revised programme of showing reservation of seats in various Colleges. The list was published on 30th August 1995 and the petitioner has approached this Court on 7th September 1995. Shri Deshmukh relying upon the judgment of the Apex Court in Indra Sawhney etc. etc. v. Union of India and others, etc. etc.,1 : AIR1993SC477 and specially paragraphs 94-A and 95 contended that constitutional reservation for Backward Classes cannot exceed fifty per cent and as twenty-five seats out of thirty-five seats available at the disposal of the Competent Authority are reserved for the students belonging to the Backward Classes, the permissible limit is exceeded. Shri Deshmukh further contended that in any event, proper reading of Rules 4.1.1. and 5.1.0 leaves no doubt that fifteen seats allotted to NRI quota cannot be the seats at the disposal of the Competent Authority as the constitutional reservation under Rule 5.1.1. is out of the seats at the disposal of the Competent Authority, reservation so far as payment seats in private Medical Colleges is concerned, it has to be out of thirty-five available seats, which cannot exceed eighteen. As such, reservation of twenty-five seats is not only unconstitutional, but also clearly against Rule 5.1.0 of the admission Rules. So far as objection regarding affected parties not being impleaded is concerned, Shri Deshmukh contended that by amendment, all students, who can be possibly affected, have been impleaded. In any case, Shri Deshmukh submitted that he is challenging interpretation of the rules and as held in The General Manager, South Central Railway, Secunderabad and another v. A.V.R. Siddhanti and others2, : (1974)ILLJ312SC , when action is challenged on the ground that it is violative of Articles 14 and 15 of Constitution of India and as the relief is claimed only against the Competent Authority, it is sufficient when Competent authority is impleaded and non-joinder of students likely to be affected by the decision is not fatal to the writ petition. Other learned Counsel appearing for respective petitioners in companion petitions have supported the submissions of Shri Deshmukh.
8. Shri Aney, the learned Special Counsel appearing for the Competent Authority and Designated Authorities, contended that the preamble of the rules for admission to Dental and Medical Colleges for the year 1995-96 clearly shows that rules are framed on the basis of various decisions of various Courts and, therefore, rules will have to be understood in the context of various judgments. He referred to decisions of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka and others3, : AIR1995SC2431 , Dr. Pradeep Jain etc. etc. v. Union of India and others4 , : (1984)IILLJ481SC , Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad and others5 : AIR1985SC1059 , Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad and others A.I.R. 1986 S.C. 1877, Unnikrishnan, J.P. and others etc. etc. v. State of Andhra Pradesh and others etc. etc.7 : [1993]1SCR594 , Unnikrishnan P.J. and others v. State of A.P. and others8, : (1993)4SCC111 , Indra Sawhney etc. etc. v. Union of India and others, etc. etc. : AIR1993SC477 , Miss Mohini Jain v. State of Karnataka and others9, : [1992]3SCR658 and Nidamarti Maheshkumar v. State of Maharashtra and others10, : [1986]2SCR230 and contended that reservation for Backward Classes has to be worked out on the basis of total intake capacity of the College. In other words, while calculating the seats available at the disposal of the Competent Authority, for the purpose of reservation for Backward Classes, the fifteen seats allotted to NRI quota also must be necessarily taken into account.
9. Shri Bobde, the learned Counsel appearing for respondent No. 4 in Writ Petition No. 3278/95, contended that seats available at the disposal of the Competent authority would mean the seats which can be allotted by the Competent Authority. As NRI seats are not under the control of the Competent Authority, the constitutional mandate of reservation will not apply to such seats. Shri Bobde referred to provisions of Article 15(4) of the Constitution of India and pointed out that such reservation will be attracted only in respect of citizens of India. He further pointed out that NRI quota also accommodates foreign nationals. In short, he supported the submissions of the petitioners. Shri Jamali, the learned counsel appearing for respondent no. 5 in Writ Petition No. 3278/95, adopted the arguments of Shri Bobde. Shri Patil, the learned Counsel appearing for one of the added respondents, namely, a student likely to be affected, submitted that his client was admitted properly and if any mistake is committed by the Competent Authority, that should not result into cancellation of his admission and the mistake committed by the Authorities should not be a ground to injure his interest as he was not at fault and he should not be made to suffer for the mistake, if any, committed by the Competent Authority. In that behalf, he relied upon the ruling of the Apex Court in Ashok Chand Singhvi v. University of Jodhpur and others11, : [1989]1SCR230 . He further pointed out that admission of his client was not made subject to the result of the petition and such prayer was expressly rejected by the Division Bench by its order dated 14th September 1995. As such, his admission cannot be disturbed. He also referred to decisions of the Apex Court in Dr. Dinesh Kumar and others, etc. v. Motilal Nehru Medical College, Allahabad and others, etc. etc., : AIR1985SC1415 and stated that with a view to avoiding hardship to the students, who are already admitted, their admissions should not be cancelled.
10. Shri Madkholkar, the learned counsel appearing for respondent No. 19 in Writ Petition No. 3553/95, contended that petitioner in his case has obtained 269 marks whereas his client has obtained 273 marks and as such, petition must be dismissed as against his client. Shri Kaptan, the learned Counsel appearing for respondent no. 14 in Writ Petition No. 2729/95, contended that several students from Amravati region are also admitted in Talegaon Dabhade College and according to Shri Kaptan, those students have obtained much less percentage of marks than several students admitted in Nagpur and Amravati regions and as those students are not impleaded as respondents to the petition, the petition must fail and must be dismissed. Shri Chaudhari, the learned Counsel appearing for respondent no. 19 in Writ Petition No. 3278/95 and respondent No. 16 in Writ Petition No. 3279/95, contended that his client having obtained more marks than the petitioners in respective petitions, her admission cannot be disturbed. Shri Sambre, the learned Counsel for respondent Nos. 11, 12, 13, 15, 24 and 25 in Writ Petition No. 2729/95, adopted the arguments of Shri Aney. Shri Chandurkar, the learned Counsel for respondent Nos. 34 and 37 in Writ Petition No. 3278/95 and for respondent nos. 33 and 36 in Writ Petition No. 3279/95, emphasised the word 'denominator' in Rule 4.1.0 and absence of the word 'denominator' in Rule 4.1.1 of the rules and contended that even under the rules, so far as constitutional reservations are concerned, they will have to be made on the total intake capacity of a given College. Shri Mothare, the learned Counsel appearing for some of the respondent students, adopted the arguments of Shri Chandurkar. He also emphasised the hardship and prejudice that may be caused if the reliefs are granted to the petitioners.
11. So far as the contention of Shri Deshmukh that constitutional reservation has to be less than fifty per cent is concerned, we may refer to paragraphs 94 and 95 of the judgment of the Apex Court in Indra Sawhney v. Union of India and others, : AIR1993SC477 . In paragraph 94-A, the Supreme Court has observed as under:
'Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits - and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. .... From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.'
However, in our opinion, we need not go into the controversy as to permissible limit of reservations inasmuch as even under the rules under consideration, the reservation is admittedly fifty per cent only. The real question before us is, fifty per cent of what? Shri Deshmukh relying upon Rules 4.1.1 and 5.1.0 stated that it has to be out of the seats available at the disposal of the Competent Authority whereas Shri Aney for the Competent Authority submitted that it has to be out of the total intake capacity. Under Rule 4.1.10, fifteen per cent of available seats at all Government Medical and Government Dental Colleges, recognised by the Medical Council of India and Dental Council of India respectively, are reserved for candidates of All India Entrance Examination nominated by the Director General, Health Services, Government of India, New Delhi and remaining eighty-five seats will form the denominator for calculation of number of seats under various sub-categories at the Colleges. The relevant rules are reproduced below:
DISTRIBUTION OF SEATS
4.0.1 The seats available for admission will be distributed as specified below.
4.1.0 ALL INDIA ENTRANCE EXAMINATION SEATS:
Fifteen per cent of available seats at all Government Medical and Government Dental Colleges, recognised by the Medical Council of India and Dental Council of India respectively, are reserved for candidates of All India Entrance Examination, nominated by the Director General, Health Services, Government of India, New Delhi. Remaining 85% seats will form the denominator for calculation of number of seats under various sub-categories at the colleges (See Annexure B). 4.1.1 SEATS AT THE DISPOSAL OF THE COMPETENT AUTHORITY:
Out of the remaining seats, all seats at Government Colleges and fifty per cent of seats at private colleges will be treated as 'Free Seats'. Balance fifty per cent seats of private colleges will be treated as 'Payment seats'. Not more than 5 per cent of total seats within the category of payment seats are permitted to be filled in on the basis of merit by private colleges by sons and daughters of NRI's/Foreign Nationals. However, such private colleges who exceeded this quota (fixed at 10 per cent for the year 1994-95) shall have to further reduce the seats from this NRI quota for the year 1995-96 on pro rata basis in accordance with the directions of Supreme Court in I.A. No. 18 Writ Petition No. 317/1993 Dr. T.M.A. Pai Foundation and others versus State of Karnataka and others. Excepting these seats as well as the seats for nominees of Government of India, all remaining seats are at the disposal of the Competent Authority. 4.1.2 FURTHER BREAK - UP
4.1.3.1 The question of equitable distribution of seats amongst various University Areas has been remitted by Hon'ble Supreme Court to Hon'ble High Court and therefore, these rules will be subject to the final order of Hon'ble High Court.
4.1.3.2 Out of the seats at the disposal of the Competent Authority, reservations as specified subsequently will be worked out as stated at para 4.1.3.3.2. However, these will be allotted within the University area competent.
4.1.3.3 After the exclusion of the seats of reservations stated in para 4.1.3.2. above, the remaining seats will be available for open Merit category. Out of such seats:
4.1.3.3.1 Thirty per cent seats will be filled in from amongst applicants from the State merit list, by the Competent Authority.
4.1.3.3.2 The remaining 70% seats will be filled in by the Designated Authorities from amongst the applicants who have passed the 12th Standard (or equivalent) examination from the Schools/Colleges situated in the concerned University area as per rule.
The University area in addition to 70 per cent seats will have the seats reserved for following categories as stated at para 4.1.3.2 above:
(i) Backward Classes,
(ii) Children of Defence Personnel,
(iii) Physically Handicapped,
(iv) Sons/Daughters of residents Maharashtra-Karnataka Disputed Border Area; and
(v) Nominees of Government of India.
4.1.3.4.0 The applicants qualifying from North Maharashtra University area will be eligible to compete for selection to M.B.B.S. Course of Government Medical College in the area of Poona University region. However, the applicants qualifying from Poona University region area NOT allowed to compete for admission to M.B.B.S. Course in the North Maharashtra University area.
4.1.3.5.0 The seats earmarked for the underage applicants of previous years will remain so, unless a selected candidate forgoes his claim for such a seat. Earmarked seats will be appropriately deducted from the respective categories of available seats, before selection procedure commences.
RESERVATIONS
5.0.1 Following seats are reserved for categories detailed below. Merit list for each category will be prepared separately and selection will be made strictly on the basis of merit within each category. This condition is not attracted by the Nominees of Government of India. For private colleges, only the Constitutional reservation will be provided.
5.1.0 CONSTITUTIONAL
Out of the seats at the disposal of the Competent Authority, seats are reserved for backward Classes and Other Backward Classes as follows:
5.1.1 PROPORTIONS
Seats are reserved for applicants belonging to Backward and other Backward Classes from Maharashtra State in the following proportion, out of the seats at the disposal of the Competent Authority :CATEGORY PROPORTION (A) Scheduled Caste and Scheduled Caste converts to Buddhism (S.C.) ... 13.0% (B) Scheduled Tribes including thoseliving outside specified areas (S.T.) ... 7.0% (C) Vimukta Jati (V.J.) ... 3.0%(D) Nomadic Tribes (NT-1) ... 2.5%(E) Nomadic Tribes (NT-2) ... 3.5%(F) Nomadic Tribes (NT-3) ... 2.0%(G) Other Backward Classes (O.B.C.) ... 19.0%----------------------TOTAL (BC) ... 50.0%
12. From the reading of the aforesaid Rules, it is clear that so far as Government Medical and Government Dental Colleges are concerned, fifteen per cent seats are not at the disposal of the Competent Authority and they are reserved for the candidates of all India entrance examination nominated by the Director General, Health Services, Government of India, New Delhi and it is only eighty-five per cent remaining seats is the denominator for calculation of number of seats. In fact, Annexure 'B' to the Rules clearly shows that in Government Medical Colleges and Government Dental Colleges, the constitutional reservations are fifty per cent of eighty-five per cent. Thus, total reserved seats, for example, for Grant Medical College, Bombay are eighty-four out of two hundred and in Lokmanya Tilak Medical College, Bombay, they are forty-three out of hundred. This is obvious because the denominator itself is eighty-five per cent for calculation. Rule 4.1.1 statues that out of remaining seats, all seats at the Government Colleges and fifty per cent of the seats at private Colleges will be treated as free seats and balance fifty per cent seats of private colleges will be treated as payment seats. Not more than five per cent of total seats within the category of payment seats are permitted to be filled in on the basis of merit by private colleges by sons and daughters of NRI'S/Foreign Nationals. The Rule further provides that excepting these seats as well as seats for nominees of Government of India, all remaining seats are at the disposal of the Competent Authority. It is a common ground that in view of the order passed by the Apex Court in Interlocutory Application Nos. 25 to 27 in Writ Petition (C) No. 317/93 and other connected matters on 11th August 1995, the NRI quota is fixed at fifteen per cent for the current academic year, i.e. 1995-96. The order of the Apex Court in paragraph 27 clearly states that it shall be open to the Management to admit NRI students and foreign students within this quota and in case they are not able to get NRI or foreign students upto the aforesaid specified percentage, it shall be open to admit the students on their own in the order of merit within the said quota. The effect of Apex Court's judgment, in our opinion, is that Rule 4.1.1. stands modified to the extent of increasing quota for NRIs from five per cent to fifteen per cent of total seats. It is a common ground that as per the order of the Court as well as under the rule, NRI quota is only from amongst the category of payment seats from private Medical Colleges. Rule 5.1.0 clearly states that out of the seats at the disposal of the Competent Authority, seats are reserved for Backward Classes and Other Backward Classes as mentioned in Rule 5.1.1. We are clear in our opinion that on proper reading of the rules, the seats allotted to NRI quota are excepted from the seats at the disposal of the Competent Authority and thus, out of total fifty payment seats in the private Medical or Dental College, fifteen seats allotted to NRI quota must necessarily go out of the seats available at the disposal of the Competent Authority. In the result, under the rules, the constitutional reservation being expressly out of the seats at the disposal of the Competent Authority, it must be out of thirty-five seats, which are at the disposal of the Competent Authority. So far as seats allotted to NRI quota are concerned, it is an agreed position that the Competent Authority has nothing to do and all those seats are filled in directly by the Colleges concerned and the Competent Authority does not figure in the picture at all. If that is so, as far as private Medical and Dental Colleges are concerned, the constitutional reservation under Rule 5.1.0 has to be out of thirty-five seats and not out of fifty seats as done by the Competent Authority. This is also logical and rational. We have already indicated that so far as Government Medical and Government Dental Colleges are concerned, fifteen per cent seats, which are to be filled in on the basis of all India entrance examination and by candidates nominated by the Director General, Health Services, Government of India are excluded while determining the constitutional reservation and in fact, the constitutional reservation is fifty per cent of the remaining eighty-five per cent. This is because the source from which candidates are admitted for fifteen per cent reservation for candidates of all India entrance examination is totally different. In fact, so far as fifteen per cent NRI quota in private Medical Colleges in payment seats is concerned, there is no difference in principle because fifteen per cent of the quota for NRIs is to be filled in totally from different source. Those seats are not available to anyone through the general admission process conducted and controlled by the Competent Authority. Apart from that, the express wording of Rule 5.1.0 makes it clear that fifty per cent reservation shall be out of the seats at the disposal of the Competent Authority and by no stretch of imagination, one can hold that fifteen per cent NRI quota is at the disposal of the Competent Authority. We find it difficult to accept the contention of Shri Aney and Shri Chandurkar that for the purposes of Rule 5.1.0, the seats at the disposal of the Competent Authority must be taken as total intake capacity of the College. On the express language of the rules mentioned hereinabove, it is impossible to accept the contention. Thus, the reservation of twenty-five seats out of fifty payment seats in the private Medical and Dental Colleges appears to us to be clearly against the express provision of the rules in that behalf.
13. This brings us to the question as to what relief can be granted to the petitioners before us. The petitioners have made a prayer that the chart prepared for the seats available in payment category in the private Medical and Dental Colleges be set aside and the respondent No. 2 be directed to prepare the chart indicating the seats allotted to the reserved category and open category in accordance with the proper interpretation, namely, that fifty per cent reservation should be out of the seats available at the disposal of the Competent Authority, i.e excluding fifteen seats allotted to NRI quota and upon such exercise, admit the petitioners against the payment seats at the College of their choice as indicated, by operating the waiting list. Shri Aney, the learned Counsel for the Competent Authority as also all the learned Counsel appearing for the students, who are admitted in the reserved category, have contended that such exercise at such late stage may not be conducive to the interest of all the students. It was pointed out that it is not as if that as a matter of course, each of the petitioners will get admission. Under these circumstances, they fervently urged that students already admitted should not be disturbed.
14. In the situation, there are only two options. One is of creating additional seats for the open category in payment seats in private Medical and Dental Colleges and second is to direct the Authorities to prepare a fresh chart in respect of payment seats in private Medical and Dental Colleges in accordance with proper interpretation of the rules and undertake the exercise of filling the seats by following the procedure under the rules over again. Shri Aney also submitted that looking to the problems involved in the aforesaid exercise, it may be necessary to direct that judgment will take effect prospectively and will not disturb the admissions for the year 1995-96. On the other hand, Shri Deshmukh and other Counsel appearing for petitioners, contended that once it is shown that the Authorities have not implemented the rules, correctly the petitioners must be granted the reliefs prayed for.
15. So far as creation of additional seats is concerned, it will be clear from the chart in respect of distribution of seats in private Medical and Dental Colleges that in all about eighty-four candidates belonging to Backward Classes have been admitted in excess of the permissible limit as per Rule 5.1.0. The Supreme Court in the judgment in State of Maharashtra v. Minoo Noazer Kavarana and others12 , : [1989]2SCR710 has observed that the additional seats can be created only if the Indian Medical Council approves of such creation. There is also the question of bearing the cost of creation of additional seats. The High Court should not have directed the creation of additional seats. In exceptional circumstances and for ends of justice, the Court may direct the creation of one or two seats after giving the Indian Medical Council an opportunity of being heard, but surely the Court should not direct the creation of so many additional seats when neither the Government nor the Indian Medical Council consents to such creation.
16. In the present case, though Indian Medical Council has been impleaded in W.P. No. 3278 of 1995 and reported to be served, Indian Medical Council has not appeared before us. However, the State has explained the difficulties of creation of additional seats only for a particular year when entire first term of the academic year is almost over. Under the aforesaid circumstances, we are not inclined to direct the Competent Authority to create additional seats, which will be so many and that too, only for the year 1995-96 when the first term of the academic year is almost complete. Shri Deshmukh in that behalf, brought to our notice the decision of Division Bench of this Court in Vaishali d/o Dr. Vinayak Chaudhary v. Dean, Government Medical College, Nagpur and another13 , 1992 Mh.L.J. 865. However, we are of the clear opinion that in the said case, the question was creation of only one seat and secondly and more importantly, the petitioner before the High Court in the said case was held to be clearly entitled to the admission. As will be explained hereafter, none of the petitioners can be held to be entitled to the admission as a matter of course upon proper distribution of seats in accordance with rules. On proper interpretation of the rules, petitioners will only stand the chance to be considered along with several others. Therefore, we do not find it proper to direct the Competent Authority for creation of additional seats with a view to accommodate the eligible candidates from the open merit category without disturbing the candidates admitted to the reserved category in the payment seats in private Medical and Dental Colleges.
17. So far as direction to respondent Authorities to re-distribute the seats in accordance with proper interpretation of Rules 4.1.1 and 5.1.0 is concerned, we are not inclined to follow the said course for more than one reasons. Firstly, all the affected students are not before us. Though many of them appear to have been impleaded, there are cases where after the cut off date, some of the students admitted in the reserved category have left the Colleges and fresh students have been admitted in their place in accordance with rules by the private Medical and Dental Colleges. Those students are also not parties before us. So far as Amravati region is concerned, as stated earlier, fifty seats in MAEER's Medical College, Talegaon Dabhade, Pune are allotted to the said region and none of the students admitted in the reserved category from Amravati region to that College is before us. In the absence of hearing all the students affected, we do not think it fair and proper to give direction, which will have the effect of cancelling their admissions. This is not the case where they have obtained the admission by any unfair means. Even the Competent Authority has not done anything with ulterior motive or with mala fide intention. In fact, no such allegation is levelled against either the Competent Authority or the students admitted to reserved category beyond the permissible limit and when such students have completed, upon payment of requisite fee, almost one term of their academic year, we find it unfair to cancel their admissions. It is also to be noticed that the students admitted in the reserved category have paid their fees and have completed almost entire first term of their first M.B.B.S. Course and it will be causing them immense hardship, if at this stage their admissions are cancelled. In this behalf, it is relevant to notice the observations of the Apex Court in paragraph 11 of the judgment in Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad and others, : AIR1985SC1059 , which are as under :
'But we are not inclined to strike down the admissions which have already been made. There are two reasons why we do not wish to disturb these admissions. In the first place, the students who have already been admitted are not parties to the present writ petition and it would not be right to make any order striking down their admissions without giving them an opportunity of being heard. Secondly, the admissions have been made as far back as January 1985 pursuant to an order of the High Court and the students who have been admitted have been prosecuting their studies since the last about three months and it would cause them immense hardship if their admissions were none (now?) to be disturbed.'
18. Shri Aney also relied upon the decision of the Apex Court in State of Uttar Pradesh and others v. Dr. Anupam Gupta and others14 : [1992]1SCR643 in support of his submission that apart from practical difficulties, normally the Court should not direct admission of the students in the mid-stream. In paragraph 14 of the aforesaid judgment, the Apex Court observed that -
'Considering from this point of view, to maintain excellence the courses have to be commenced on schedule and be completed within the schedule, so that the students would have full opportunity to study full course to reach their excellence and come at par excellence. Admission in the midstream would disturb the courses and also work as a handicap to the candidates themselves to achieve excellence. Considering from this pragmatic point of view, we are of the considered opinion that vacancies of the seats would not be taken as a ground to give admission and direction by the High Court to admit the candidates into those vacant seats cannot be sustained.'
19. There is yet another and more important reason as to why we are not inclined to give directions as prayed for by the petitioners herein. It was an agreed position before us that if distribution of seats amongst the payment seats in private Medical and Dental Colleges is to be done in accordance with rules, meaning thereby - after excluding fifteen per cent seats allotted to NRI quota, then the whole process will have to be restarted from the interviews and counselling for payment seats in the private Colleges, starting from Rule 8.4.0. Such exercise itself will take considerable time and even if undertaken, it cannot be said with certainty that any of the petitioners before us will be definitely admitted inasmuch as the whole merit list position with reference to option for different colleges is likely to be changed. There may be the candidates, who are having better merit position than the petitioners and yet they have not been admitted. As this is not the case where we find that as a matter of course, petitioners could be admitted and as without undertaking the exercise from the stage of interview and counselling for payment seats in the private Colleges, it cannot be ascertained at all as to who will be admitted in the open merit category, we think it thoroughly undesirable to direct the Competent Authority to undertake such exercise, which may not necessarily benefit any of the petitioners before us. The admission process being a State-wise process, we cannot ignore several parties, who are not before us and who will be affected by such direction.
20. It is also relevant to notice that matter in fact, is pending before the Apex Court and grant of NRI quota to fifteen per cent was by way of an interim order. Thus, rules are only for the year 1995-96 and first term is almost over. Therefore, in view of the fact that such a direction would involve a complicated exercise of starting the admission process right from the stage of interview and counselling for payment seats of the private Colleges from Rule 8.4.0 and in view of the fact that such exercise ultimately may not result into granting admission definitely to anyone of the petitioners before us and in view of the fact that even if candidates are admitted ultimately, they would not be in a position to complete the first term of the academic year 1995-96 and in view of the fact that it would result into cancellation of admissions of about eighty-four students, who have secured their admissions regularly and without any unfair means and have completed almost entire first term and in view of the fact that this appears to be merely a mistake on the part of the Competent Authority without there being any ulterior motive or mala fide intention, we are of the opinion that although petitioners succeed in their contention as to proper interpretation of Rules 4.1.1 and 5.1.0, for the aforesaid reasons, we do not find it appropriate fair and just to grant the reliefs as prayed for by the petitioners.
21. In the result, all these petitions fail and are dismissed. The rule is discharged. In the circumstances, there shall be no order as to costs in each of the petitions.