ORDER
Ramakrishna, J.
1. The appellant had filed W.P. No. 44138 of 1993 seeking to quash the communication No. MCI/34 (i)/93-Mad. 25059 dated 15-12-1993 issued by respondent-2 herein and to direct respon-dent-1, the Director, Sri Jayadeva Institute of Cardiology, Bangalore, to reserve one seat out of the three seats notified for selection of candidates to D.M., Cardiology course commencing from 1 -1-1994 for the Scheduled Castes and Scheduled Tribes and to admit him to the said course as against the reserved seat. He has also sought for an interim relief based on the above reliefs. That writ petition having been dismissed by the learned singleJudge by his order dated 1-3-1994, the appellant has preferred this appeal seeking to set it aside oh more than one ground taken in the appeal. The prayer in the writ appeal is as follows:--
'Wherefore this Hon'ble Court may be pleased to call for records in writ petition No. 44138 of 1993 on the file of this Hon'ble Court and set aside the order dated 1-3-1994 made therein and further be pleased to grant the relief sought in the writ petition by allowing this appeal with costs in the interests of justice.'
2. Therefore, the appellant filed an application (I.A. No. I) under Section 151, C.P.C., read with Art. 226 of the Constitution for interim relief as follows:--
'Wherefore it is prayed that this Hon'ble Court may be pleased to issue appropriate directions to the first respondent to permit the appellant to attend the D.M. Course (Cardiology) at his risk, in the interest of justice.'
3. We have heard Sri S. P. Shankar, learned counsel for the appellant and Sri M.R. Achar, learned counsel for respondent-1. Respondent-2 though served with the notice remained unrepresented.
4. At the out-set, bringing to our notice the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of appointment etc.) Act, 1990 (Karnataka Act 7 of 1991) (hereinafter called the Act) which came into force on 1-6-1992, in particular sub-section (3) of Section 4 therefore, Sri Shankar submitted that the learned single Judge was not aware of the Act though it was in force as on the date of his order and that therefore, he sought permission to address arguments in that behalf. He was permitted to do so.
5. At this stage, it is necessary to extract sub-section (3) of Section 4 of the Act. It reads:
'(3) Subject to such rules as may be prescribed, while making admissions, after the appointed day, to a course of study in University established or deemed to be established by or under any law of the StateLegislature or an educational institution established or maintained or aided by the State Government, there shall be made reservation for the persons belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes to such extent and in such manner as may be prescribed.'
XX XX XX
6. Based on the above provisions, SriShankar argued that when the State hadclearly provided for reservation of seats forpersons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes in admission to Universities and to the educational institutions established or maintained or aided by the State Government to the extent and in accordance with the manneralso provided by it, it was not open torespondent- 1 to take a stand that there couldnot be any reservation out of three seatsmeant for D.M. Cardiology course in Entrance Examination to be held on 27-12- 1993; He further submitted that respondent-2 Medical Council of India was not competentto make any legislation or to take any decisionthat there cannot be any reservation in favourof persons belonging to Scheduled Castes andScheduled Tribes in the matter of admissionto D.M., in Cardiology and that merit alongshould count, in the absence of such powerconferred on it. With regard to the status ofrespondent-1, the learned counsel argued thatit is an institution registered under theprovisions of the Karnataka Societies Act,1959 now declared as Autonomous institution, by virtue of the order made by the State of Karnataka, having 100% grants given by the State under the Grant-in-Aid Code Therefore, for all purposes it being a State under Art. 12 of the Constitution should maintain equality of opportunity and any actsof such an institution must be in conformitywith the provisions of the Constitution ofIndia.
7. On facts, Sri Shankar submits that when respondent-1 invited applications filling up the three seats in D.M. (Cardiology), the appellant was called upon to apply-Accordingly, he submitted his application claiming reservation of one of the three seatsin D.M. (Cardiology) in his favour, as can be seen from Annexure-A dated 29-11-1993 for which respondent-2 replied as per Annexure-B stating that there was no reservation out of the three seats notified. The stand taken by the Council was that the three seats notified would he filled up strictly on merit. This attitude on the part of respondent-2, according to the learned counsel, was illegal and unsustainable. The Council had no such power under the statute to take such a decision and the power conferred on it was only advisory in character and not mandatory. The legal argument advanced by the learned counsel is that the mandate of Art. 14 read with Art. 15(1) of the Constitution--though couched in negative term -- must yield to that of Art. 15(4) which confers on the State power to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Bearing in mind this power of legislation read with Art. 46 of the Constitution, the State of Karnataka enacted the Act by which the appellant has a right to claim reservation of one of the seats notified to be filled up. Therefore, it is not open to respondent-2 to say that there cannot be any reservation in respect of the three seats for admission to D.M. in Cardiology in favour of persons belonging to the Scheduled Castes and the Scheduled Tribes, which is, according to the learned counsel, contrary to the specific provision made under sub-section (3) of Section 4 of the Act. Another contention of Sri Shankar is that Art. 15(4) is in aid of the directive principles of State policy enshrined in Art. 46 of the Constitution, that there must be positive discrimination in favour of the Scheduled Castes and the Scheduled Tribes as intended in Art. 15(4) of the Constitution and that the synthesis of these two Articles in the light of the Act gives no choice to the respondents in the matter of reservation in favour of the Scheduled Castes and the Scheduled Tribes. This is abundantly made clear in sub-section (3) of Section 4 of the Act. In the face of this fact, the stand taken by respondcnt-2 that there cannot be any reservation is contrary to the said provisions of theAct and the requirements of the Constitution.
8. Sri Shankar also submits that the decision taken by respondent-2 which is contrary to sub-section (3) of Section 4 of the Act is based upon the undisclosed decision which cannot be taken in the absence of any power conferred on it. He placed strong reliance upon the decision of the Supreme Court in Unni Krishnan v. State of AndhraPradesh : [1993]1SCR594 and Ajay Kumar Singh v. State of Bihar, : [1994]3SCR57 . According to him, the decision of the learned single Judge based on the decision of the Supreme Court in Dr. Jagadish Saran v. Union of India : [1980]2SCR831 and Pradeep Jain v. Union of India : (1984)IILLJ481SC is contrary to the decision in Ajay Kumar Singh's case supra. He also placed reliance upon the decision of the Supreme Court in P and T Scheduled Caste/Tribe Employees' Welfare Association (Regd) v. Union of India : (1989)ILLJ76SC . Thus he argued that the decision rendered by the learned single Judge in the writ petition cannot be sustained and the same is liable to be set aside and the writ petition allowed by granting the reliefs sought for by the appellant.
9. Per contra, Sri M.R. Achar, learned counsel for respondent-1, argued that the pleadings as found in the writ petition are different from the grounds urged in the appeal. He submitted on facts that respondent-l has been receiving aid from the Government of Karnataka only to the extent of 60% and the remaining 40% is being raised from Philanthropists and other institutions. However, he has not been able to produce acceptable evidence in proof of the said contention. However, he submits that the question whether respondent-1 is a State within the meaning of Art. 12 of the Constitution need not be gone into by this Court.
10. The submission of Sri Achar on the reservation policy for selection of candidates for D.M. (Cardiology) is that as per the regulations made by respondent-2, there is no reservation in the posts of super speciality courses such as D.M. Cardiology etc., and those posts will be filled up purely on meritafter holding Entrance Test and Vivo Voce examination. He further submits that in view of the decision of the Supreme Court in Dr . Pradeep Jain's case : (1984)IILLJ481SC , there cannot be any reservation in the selection of candidates for the super specialty courses. He seeks to distinguish the view taken in Ajay kumar Singh's case by drawing our attention particularly to paragraphs 7 and 8 therein. He also places reliance on the decision of the Supreme Court in Indra Sawhney v. Union of India : AIR1993SC477 . He has drawn our attention to clauses (ii), (v) and (vi) of sub-section (3) of Section 2 of the Act and Rule 3 of the Rules framed thereunder. Referring to the reservation made in similar and other courses in Tamil Nadu, he submits that there the number of posts were four and hence one of the posts was reserved for candidates belonging to the Scheduled Castes and the Scheduled Tribes but, in the instant case, the total number of posts are only three and hence where the number of posts is less than four, no reservation can be made. Thus he submits that the order under appeal being justifiable, this Court need not interfere with it.
11. We have carefully gone through the decisions relied on by both sides. We have also perused the documentary evidence on record and also the provisions of the Act in force as on the date of the order made by the learned single Judge. We are of the view that non-consideration of the provisions in particular sub-section (3) of Section 4 thereof by the learned single Judge has resulted in injustice to the appellant.
12. At the out-set, it was on account of the failure on the part of the appellant to bring the Act to the notice of the learned single Judge, which was in force not only when the applications were called for selection of candidates for D.M. (Cardiology) courses but also when the impugned order was made by the learned single Judge, perhaps, the learned single Judge did not apply his mind to the relevant provisions of the Act. However, we will now refer to the Act.
13. We have already extracted sub-section (3) of Section 4 of the Act. Sub-section (3) of Section 2 of the Act reads:
'(3) 'establishments in public sector' means,--
XX XX XX XX (ii) an educational institution established or maintained or aided by the State Government;
XX XX XX XX (v) a statutory body or corporation established by or under a State or Central Act owned or controlled by the State Government;
(vi) a university established or deemed to have been established by or under any law of the State Legislature;
Sub-section (5) of Section 2 of the Act states:
'(5) 'Scheduled Castes' shall have reference to the Scheduled Castes specified in the Constitution (Scheduled Castes) Order 1950 made under Art. 341 of the Constitution of India and as amended from time to time,'
Sub-section (6) thereof reads:
'(6) 'Scheduled Tribes' shall have reference to the Scheduled Tribes specified in the Constitution (Scheduled Tribes). Order, 1950 made under Art 342 of the Constitution of India and as amended from time to time. XX XX XX XX
Article 29(2) of the Constitution of India provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 15 thereof deals with prohibition of discrimination on grounds of religion, race, caste, sex, place of birth or any of them. Exception to this, Article 15(4) provides:
'(4) Nothing in this article or in clause (2) of Art, 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.'
Rule 3 of the Rules framed under the Act provides for reservation. It reads:
'(3) Reservation.-- All Executive orders in relation to reservation made by the State Government and which are inforce on the date of commencement of these rules shall be deemed to be part of these rules and shall continue to be in force until they are modified or replaced by the State Government, for the purpose of Section 4 of the Act.'
14. The Rules came into force on 22-4-1993. Admittedly, the Government Orders relating to reservation in admissions, appointments etc. in favour of persons belonging of the Scheduled Castes and Scheduled Tribes to the extent of 15% now increased to 18% were in force on the date of commencement of these rules and the Act which came into force on 1-6-1992. It admits of no dispute that even on the date when the notification was issued in 1993 calling for applications for the posts of D.M. (Cardiology) and also when the writ petition was heard and disposed of by the learned single Judge, as already observed, the Act and the Rules were in force. Inadvertantly, the learned counsel for the appellant might not have brought to the notice of the learned single Judge the Act and the Rules framed thereunder when he heard and disposed of the writ petition. Therefore, the learned single Judge had no occasion to consider the provisions made thereunder. This is one of the grounds on which this Court has to reconsider the entire matter afresh in exercise of the powers under Art. 226 of the Constitution, although the Court in the writ appeal is considering the grounds urged therein to find out whether the learned single Judge was justified in dismissing the writ petition on the ground that no reservation could be made in D.M, Cardiology course.
15. Both in the case of Jagadish Saran (AIR 19SO SC 820) and in Pradeep Jain, their Lordships of the Supreme Court were called upon to decide the question of application of Article 16(2) and (4) for the purpose of finding out the feasibility of reservation in favour of candidates belonging to backward classes and they did not consider the feasibility of reservation for persons belonging to the Scheduled Castes and the Scheduled Tribes. Therefore, Sri Shankar is right in submitting that the ratio of these two decisions has no application to the facts of the present case.
16. On the other hand, in Ajay kumar Singh's case, a Bench of three Judges of the Supreme Court had the occasion to consider the application of Art. 15(4) of the Constitution for providing reservation in favour of candidates belonging to the Scheduled Castes and the Scheduled Tribes in admission to Post Graduate Medical Course.
17. In paragraph-10 of the judgment in Ajay Kumar Singh's case, the Supreme Court considering the question of application of the ratio of the decisions in Jagdish Saran : [1980]2SCR831 and Pradeep Jain, : (1984)IILLJ481SC , held as follows:--
'Sri Vikas Singh brought to our notice the decisions of this Court in Dr. Jagdish Saran v. Union of India : [1980]2SCR831 and Pradeep Jain v. Union of India : (1984)IILLJ481SC in support of his submission. Jagdish Saran was not a case arising under Art. 15(4). It was a case where 70% of the seats in the postgraduate medical course in the Delhi University were reserved in favour of Delhi University graduates keeping the remaining 30% open to all including the graduates of Delhi University. The validity of the said provision was questioned and in that connection certain observations were made by this Court which read:
xx xx xx xx Students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post graduates studies should be conducted by the Universities.'
However, the Court hastened to add in paragraph-25 which has been extracted in paragraph-11 of the judgment in Ajay KumarSingh's case as follows:--
'We hasten to keep aloof from reservationsfor backward classes and Scheduled Castes and Scheduled Tribes because the Constitution has assigned a special place for that factor and they mirror problems of inherited injustices demanding social surgery which if applied thoughtlessly in other situations may be a remedy which accentuates the malady.'
18. In paragraph 21 in Ajay Kumar Singh's case the Supreme Court held:
'The Regulations made by the Medical Council in 1971 (revised up to January, 1978) speak generally of students for post-graduate training being selected 'strictly on merit judged on the basis of academic record in the undergraduate course.' This is more in the nature of advice and not a binding direction. The Regulation does not say that no reservations can be provided under Art. 15(4). The power conferred upon the State by clause (4) of Art. 15 is a constitutional power. The said power obviously could not have been overridden or superseded by a Regulation made by the Indian Medical Council under the Act. The Regulation must be read consistent with Art. 15(4) and if so read, it means that the students shall be admitted to post-graduate training strictly on the basis of merit in each of the relevant classes or categories, as the case may be. Any other construction seeking to given an absolute meaning to the said Regulation would render it invalid both on the ground of travelling beyond the Act. It may also fall foul of Art. 15(4).'
(Emphasis is supplied).
19. This observation in paragraph 21 is most important and relevant for the purpose of deciding the question arising in the case on hand.
20. Regard being had to the law laid down by the Supreme Court in Ajay Kumar Singh's case, it is noteworthy that the Medical Council is not competent to make a regulation that would run contrary to the mandate of Art. 15(4) of the Constitution. Indeed, in paragraph-23 thereof, the Supreme Court further held, referring to the power of the Medical Council of India as follows:--
'In State of Madhya Pradesh v. NiveditaJain : [1982]1SCR759 , a Bench of this court comprising Y.V. Chandrachud, C.J., A. Vardharajan and A.N Sen, JJ. held, dealing with a Regulation (similar to the one contained in the 1989 publication of the Regulation by the Indian Medical Council) made by the Indian Medical Council that it is 'merely directly and does not have any mandatory force.'
In the said paragraph their Lordships have referred to Entry 66 in List I (Union List) of the 7th Schedule to the Constitution relating to 'co-ordination and determination of standard in institutions for higher education or research and scientific and technical institutions.' Indeed their Lordships have also referred to Entry 25 in List III (Concurrent List) of the same Schedule and Entries 63, 64, 65 and 66 of List-I etc.
21. In paragraph-29 their Lordships have further held:
'Even if one relates the Indian Medical Act to Entry 25 of the List III in addition to Entry 66 of List 1, even then the position is no different for the Indian Medical Act does not purport to regulate the admissions or admission policy to post-graduate medical courses. The field is thus left free to be regulated by the State. The State can make a law of an executive rule; in this case it has chosen to make an executive rule.'
22. In the light of the observations of the Supreme Court in paragraph 29, it is clear that the State of Karnataka having chosen to enact the Act (Karnataka Act No. 7 of 1991) providing under sub-section (3) of Section 4 thereof reservation of seats or posts for persons belonging to the Scheduled Castes and the Scheduled Tribes, it was not open to respondent-2 Medical Council of India to say that there could not be any reservation while making admissions to D.M., (Cardioloigy), To reiterate, in view of the ruling of the Supreme Court that the Medical Council of India cannot make any legislation or regulation contrary to the provisions of Art. 15(4) of the Constitution, besides holding that the power of the Council could be taken only as advisory and not mandatory, it is not possibleto concede to the submission of Sri M.R. Achar that merely because respondent-2 issued the endorsement that there was no reservation of seats in D.M., Cardiology in favour of the Scheduled Castes and the Scheduled Tribes, respondent-1 has chosen not to make any reservation. It is made clear that in the face of the legislation made by the State, viz., the Act 7 of 1991 providing reservation in the matter of admission of students to studies in a University for persons belonging to the Scheduled Castes and the Scheduled Tribes, respondent-1 ought not to have taken the stand that there cannot be any reservation merely on the endorsement issued accordingly by respondent-2 who has no competency to do so. The stand taken by respondent-1 as against the mandatory provisions contained in sub-section (3) of Section 4 of the Act, is illegal and improper and therefore it cannot be sustained in law. Unfortunately, learned single Judge failed to consider this aspect of the matter.
23. It is brought to our notice that in the notification issued by the neighbouring Tamil State calling applications for various Higher Speciality post-Graduate Courses including D.M. Cardiology for 1989-90, provision was made for reservation of seats in favour of the candidates belonging to the Scheduled Castes and the Scheduled Tribes. A zeros copy of the notification/ Prospectus has been produced along with the writ appeal. Placing reliance on this, Sri Shankar argued that respondent-1 should have made reservation of one of the three seats notified for M.D.. Cardiology on the lines of the provision made in Tamil Nadu. It is seen therefrom that the Higher Speciality Courses mentioned there, are:
(1) M.Ch. Neuro Surgery,
(2) M.Ch. Cardio Thoracie Surgery,
(3) M.Ch. Plastic Surgery,
(4) M.Ch. Genito Urinary Surgery,
(5) M.Ch. Paediatric Surgery,
(6) M.Ch. Gastro Enterlogy,
(7) M.Ch. Vascular Surgery,
(8) D.M. Gastro Enterology.
(9) D.M. Neurology,
(10) D.M. Cardiology,
(11) D.M. Nephrology.
Paragraph- 14 (a) of the Prospectus states:
'The following rule of reservation will be followed for selection of candidates to various Higher speciality courses where there are four seats and above in each speciality:--
XX XX XX XX For Scheduled Castes/ Scheduled Tribes
....18%
24. Sri Achar, learned counsel for respondent- 1 , submits in this connection that in Tamil Nadu provision for reservation is made where there are four seats and above in each speciality, whereas in the case on hand, the seats notified for M.D., Cardiology are only three and that therefore the number of seats being less than four, reservation falling on the line of Tamil Nadu cannot be made, here. We do not see any force in this submission of Sri Achar. Sub-section (3) of Section 4 of the Act does not specifically say that there shall be made reservations in favour of the Scheduled Castes and Scheduled Tribes only when there are three or four seats and above nor is it the policy of the State of Karnataka to reserve seats in favour of those categories only when the seats required to be filled up are at a particular number and above, as the case may be. Secondly, ratio of the decision of the Full Bench of this Court in Dr. Rajkumar v. Gulbarga University, : AIR1990Kant320 is in favour of the appellant. The statement of law made in that decision says that reservation of available single post amounts to 100% reservation which is unconstitutional. Dealing with Arts. 14, 15(4) and 16(2) of the Constitution, the Full Bench held that in respect of cadres where there is only one post, it does not admit of any reservation at all and that where there are more than one vacancy, there shall be reservation. No doubt, the Full Bench held in paragraph (iv) at page 2129 as follows:--
'(iv) The only reasonable method of givingeffect to reservation in the cadres in which the number of posts available is smaller, is by way of providing a reasonable roster.... the 100 point roster is unwieldy because, for the completion of the roster it might take a few centuries. It would be reasonable to fix the roster for points as minimum as possible for cadres in which the posts available are only a few and therefore the roster required to be reviewed and modified.'
25. The Full Bench went one foot ahead and held in paragraph 34 as follows:--
'(vi) Though in order to ensure equal opportunity in matters relating to employment under the State to citizens who are similarly situated, generally reservation has to be cad rewise and subject-wise, an exception would possibly be made in cases like the one of Professors in which, post available in each of the subjects is only one by grouping all of them together for purposes of reservation so that at least in the subjects in which the candidates belonging to reserved category are available they could be accommodated. It is no doubt true that such a grouping deprives the opportunity to candidates belonging to open competition, who possess the qualification in the subjects in which the reserved candidates are available, but it is equally true that some one has to sacrifice in order to give effect to the noble object and purpose incorporated in Art. 16(4).'
26. It may be mentioned here that the ratio of the decision of the Full Bench in Dr. Rajkumar's case : AIR1990Kant320 has been approved subsequently by the Supreme Court.
27. Therefore, applying the principles laid down in Dr. Rajkumar's case, : AIR1990Kant320 (FB) we are clearly of the view that even in respect of cadres where there are only three posts, reservation has to be made in favour of persons belonging to the Scheduled Castes and the Scheduled Tribes. The observations made by the Supreme Court in Unni Krishnan : [1993]1SCR594 and Indra Sawhney : AIR1993SC477 would also come to the aid of the case of the appellant and we do not think it necessary to refer in detail tothose observations made therein.
28. Before parting with this case, it is necessary to refer to the submission of Sri Achar that so far as the courses referred to as the super specialty courses, are concerned, M.D., Cardiology being one such course, the view taken by the Supreme Court in Indra Sawhney's case : AIR1993SC477 is against the appellant. He has drawn our attention to paragraph-112 therein which reads:
'112. While on Art. 335, we are of the opinion that there are certain services and positions were either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove alone counts. In such situations, it may not be advisable to provide for reservations.'
Therefore, Sri Achar submits that M D. Cardiology being the super specialty course, reservation cannot be made while filling up the posts for the said course.
29. At the out-set, it is seen that their Lordships in Indra Sawhney's case : AIR1993SC477 held so while referring to the principles of reservation to be made in general particularly regarding appointments to services and posts in connection with the affairs of the Union or of a State under Arts. 335 and 16(4) of the Constitution and they did not consider exclusively reservation under Art. 15(4) which requires provisions to be made by the State for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Secondly, the general observation made in paragraph 112 above was in respect of onerous duties attached to the posts to be filled up. But when we consider the Tamil Nadu notification calling applications for various Higher Specialty post-Graduate Courses including M.D., Cardiology, qualification required for M. D., Cardiology was M.D. (G.M.) or M.D. (Paed. Med.) That notification does not say that D.M. Cardiology is the super specialty course. On the other hand, it says that it is Higher Specialty course. Apart from the observations made by the Supreme Court incertain cases referring to the super specialty courses, the dictionary meaning of 'super specialty course' is to obtain knowledge in specialised course out of several fields in medicine. Say, for instance, a person of M.B.B.S., degree having done his M.D. in neurology, applies of nephrology to specialise in that course. Then that course 'nephrology' is called 'super specialty course'. In other words, all courses after post-graduate course cannot be called the super specialty courses just because one applies to one of them with a view obtain special knowledge in it. In the instant case, the appellant has acquired post-graduation in M.D. (General Medicine) and not in any particular subject and D. M. Cardiology course, the qualification of which the appellant wants to acquire on the basis of his post-graduation in M.D. (General Medicine) cannot be said to be the super specialty course. Therefore, it is not possible to concede to the submission of Sri Achar in this behalf.
30. Viewed from these circumstances, we are of the view that the conclusion reached by the learned single Judge resulting in dismissal of the writ petition cannot be sustained. Consequently, his order appealed against has to be reversed.
31. In the result, we make the following: