G.P. Singh, C.J.
1. By order dated 2nd April, 1980 the State Government made Rules for admission to 1st year M, B. B. S. course of medical colleges of Madhya Pradesh. These rules are not statutory. They were made in the exercise of the executive power of the State. The rules provide for holding of a Pre-Medical Examination for selection at candidates for admission to the Medical Colleges. The Pre-Medical Examination is held by a Board which is constituted by Rule 2. The selection for admission is made as provided in Rule 3 'from the merit-list prepared on the basis of the result of this examination.' No candidate can be admitted unless he has passed B. Sc. Part I or any equivalent examination. This is the minimum educational qualification prescribed by Rule 5 (1). Reservation of seats is provided for by Rule 7. There are 720 seats in all. Out of these, 15% seat19As are reserved for each of the categories of Scheduled Castes and Scheduled Tribes candidates, which means that 108 seats are reserved for the Scheduled Castes and the same number for the Scheduled Tribes, 3% seats are reserved for the children of military personnel; 3% seats are reserved for nominees of the Government of India and three seats are reserved for nominees of the Government of Jammu and Kashmir. The State Government can also nominate three candidates to a medical college in Jammu and Kashmir in exchange of seats reserved for the nominees of that State in Madhya Pra-desh. The candidates appearing in Pre-Medical Examination have to secure minimum qualifying marks for admission. The minimum qualifying marks are 50% in the aggregate and 33% in each subject. For the Scheduled Castes and the Scheduled Tribes the minimum qualifying marks are 40% in the aggregate and 30% in each subject. The Board is authorised to relax the qualifying marks in the aggregate by 5% for all categories in case the required number of candidates for admission are not available. The Government has the power under the rules to make a special relaxation in the minimum qualifying marks to the extent considered necessary, in case, with relaxation granted by the Board, the required number of candidates in the categories of Scheduled Castes and Scheduled Tribes are not available. The provision relating to minimum qualifying marks is made in Rule 20. The power of relaxation given to the Board and the State Government is contained in Note (i) and Note (ii), respectively, appended to Rule 20. Rule 20 along with the relevant notes reads as follows:
'20. Selection of candidates from amongst those who have appeared and qualified in the written examination shall be made strictly on merit as disclosed by the total number of marks obtained by a candidate in the Pre-Medical Examination. The minimum qualifying marks for admission to Medical Colleges shall be 50 per cent in the aggregate and 33 per cent in each subject separately. For Scheduled Castes and Scheduled Tribes candidates, the minimum qualifying marks shall be 40 per cent in aggregate and 30 per cent in each subject separately.
Note (i) In case required number of candidates for admission are not available according to above percentage of qualifying marks, the Board shall have the power to lower the percentage up to 5 per cent in the aggregate for all categories of candidates.
(ii) In case, with relaxation granted by the Board as above, the required number of candidates in the categories of Scheduled Castes/Scheduled Tribes are not available Government shall have the powers to grant special relaxation in the minimum qualifying marks to the extent considered necessary.'
2. Rule 9 of the Rules provides that a combined merit-list of all the categories of candidates except the candidates belonging to the Scheduled Castes and the Scheduled Tribes shall be prepared and admissions granted to the eligible candidates according to merit so revealed subject to the reservations specified in Rule 7. Rule 9 further provides that 'in case seats of reserved categories of Scheduled Castes and Scheduled Tribes remain vacant these seats will be filled up by the candidates available on the combined merit-list.'
3. There were 9400 candidates in all, out of which 623 candidates belonged to the Scheduled Castes and 145 to the Scheduled Tribes. As a result of the examination, only eighteen seats in the category of Scheduled Castes and two seats in the category of Scheduled Tribes could be filled up because other candidates of these categories did not secure the minimum qualifying marks prescribed by Rule 20, i.e., 40% in the aggregate. The Board in exercise of its power under Note (1) to that rule made a relaxation of 5% after which seven more candidates Were admitted in the category of Scheduled Castes and one more in the category of Scheduled Tribes. Thus, out of 108 seats for each of the categories of the Scheduled Castes and the Scheduled Tribes, only 25 could be filled up in the category of Scheduled Castes and three in the category of Scheduled Tribes. The Government considering that very few candidates of these categories got admission, by order dated 9th September, 1980 completely relaxed the condition relating to the minimum qualifying marks for these categories. This order, which is Anne-xure Rule 2, translated in English, reads as follows:
The Government has taken a decision that the candidates belonging to the Scheduled Castes and the Scheduled Tribes be admitted to the Medical Colleges in the seats reserved for them in accordance with merit to be determined on the basis of marks obtained by them in the Pre-Medical Examination and that for this purpose the condition relating to the obtaining of minimum qualifying marks be removed.
4. By another order passed on 18thSeptember, 1980, the Government made a reservation of 3% of the seats for the children and grand children of freedom fighters.
5. The petitioner was a candidate foradmission to the Medical Colleges. The petitioner appeared in the Pre-Medical Examination and secured 51.8% marks in the aggregate. The petitioner was not selected on the basis of the merit list. By this petition under Article 226 of Constitution, the petitioner challenges the order dated 9th September, 1980 by which the Government completely relaxed the condition relating to the minimum qualifying marks in respect of candidates belonging to the Scheduled Castes and the Scheduled Tribes, The petitioner also challenges the order dated 18th September, 1980 by which the Government made reservation for the children and grandchildren of freedom fighters.
6. The first contention raised by the learned counsel for the petitioner is that the Government's order relaxing the minimum qualifying marks for the categories of Scheduled Castes and Scheduled Tribes contravenes the regulations made under Section 33 of the Indian Medical Council Act, 1956. It is further submitted that the order is also violative of Ordinance No. 54 made by the University of Jabalpur.
7. To appreciate the contention it is first necessary to refer to the Medical Council Act and the regulations made under it. The Medical Council Act is an Act to provide for the reconstitution of the Medical Council of India and the maintenance of a Medical Register for India and for matters connected therewith. The Medical Council is constituted under Section 3. The Council is a body corporate. Section II provides that the medical qualifications granted by any University or Medical Institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of the Act. The Medical Colleges and the Universities of our State are all mentioned in the First Schedule. Section 19 of the Act provides for withdrawal of recognition when it appears to the Council that the course of study and examination to be undergone or the proficiency required from candidates at any examination or the staff, equipment, accommodation etc. provided in any University or medical institution do not conform to the standards prescribed by the Council. Section 19A deals with minimum standards of medical education and reads as follows:
' 19A. Minimum standards of medical education. -- (1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in India.'
8. Section 33 empowers the Council to make regulations to carry out the purposes of the Act generally and on specified matters. The section, in so far as relevant, reads as follows:
'33. Power to make regulations. -- The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for -
(j) the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions for grant of recognised medical qualifications.
(k) the standards of staff, equipment, accommodation, training and other facilities for medical education;
(l) the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations;
(n) any matter for which under this Act provision may be made by regulations.'
9. In exercise of the power conferred by Section 33, the Council first made regulations in April 1977. Section II of these regulations dealt with selection of students. In approving the regulations by order dated 30th November, 1977, the Central Government did not grant approval to Section II dealing with selection of students. Section II, therefore, did not then become effective as a regulation and remained only a recommendation made by the Council. The scheme under Section II was that in a State having more than one university or college, a competitive entrance examination be held so as to achieve a uniform evaluation and a candidate for admission must obtain not less than 50% marks in the aggregate in science subject in such examination. Relaxation of 5% in the minimum marks was contemplated in case of candidates belonging to the Scheduled Castes or the Scheduled Tribes. The regulations were thereafter amended. Approval was granted to the amended regulations by the Central Government on 15th October, 1979. Section II of the regulations which deals with selection of students was also approved by the Central Government in the amended form. Thus, Section II from 15th October, 1979 became a part of the regulations. The section in so far as relevant reads as follows :
'Section II.
The selection of students to a medical college should be based solely on merit of the candidate and for determination of merit, the following criteria be adopted uniformly throughout the country:--
(b) In States, having more than one University/Board/Examining Body conducting the qualifying examination (or where there are more than one medical college under the administrative control of one authority), a competitive entrance examination should be held so as to achieve a uniform evaluation due to the variation on the standard of qualifying examinations conducted by different agencies.
(e) To be eligible for competitive entrance examination, candidate must have passed any of the qualifying examinations as enumerated under the head-note 'Admission to Medical Course.'
Provided that a candidate who has appeared in a qualifying examination the result of which has not been declared, may be provisionally allowed to take up the competitive entrance examination and in case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination.
Provided also that a candidate for admission to the Medical Course must have obtained not less than 50% of the total marks in English and Science subjects taken together (i) at the qualifying examination' (or at a higher examination) in the case of medical colleges where the admissions are made on the basis of marks obtained at these examinations or (ii) 50% of the total marks in English and Science subjects taken together at the competitive entrance examination where such examinations are held for selection.
Provided further that in respect of candidates belonging to Scheduled Castes/Scheduled Tribes the minimum marks required for admission shall be 40% in lieu of 50% for general candidates. Where the seats reserved for Scheduled Castes and Scheduled Tribes students in any State cannot be filled for want of requisite number of candidates fulfilling the minimum requirements prescribed from that State, then such vacant seats may be filled up on all India basis with Scheduled Castes and Scheduled Tribes candidates getting not less than the minimum prescribed pass percentage. The authorities (State Governments and Universities) should arrange special coaching classes for Scheduled Castes/Scheduled Tribes candidates before the qualifying competitive examination to enable them to come up to the approriate standard for admission to the Medical Course.'
10. The scheme under Section n of the regulations as amended is that there has to be a competitive entrance examination in States having more than one University or more than one Medical college so as to achieve a uniform evaluation. To be eligible for competitive entrance examination, a candidate must have passed a qualifying examination. It is not in dispute that B. Sc. Part I or any equivalent examination is a qualifying examination for eligibility for competitive entrance examination. The second proviso to Section II (e) requires that a candidate for admission ''must have obtained not less than 50% of the total marks in English and Science subjects taken together' at the competitive entrance examination. The minimum qualifying marks for the candidates belonging to the Scheduled Castes and the Scheduled Tribes is 40% as mentioned in the third proviso to Section II (e). The section further says that where the seats reserved for the Scheduled Castes and the Scheduled Tribes in any State cannot be filled for want of requisite number of candidates fulfilling the minimum requirement prescribed from that State, 'then such vacant seats may be filled up on all India basis with Scheduled Castes and Scheduled Tribes candidates getting not less than the minimum prescribed pass percentage.' This section also requires the authorities to arrange special coaching classes for the candidates of the Scheduled Castes and the Scheduled Tribes before the competitive examination to enable them to come up to the appropriate standard for admission to the Medical Course.
11. The use of the words 'must have obtained not less than 50% of the total marks in English and Science subjects' as they occur in the second proviso to Section II (e) of the regulations, shows that the requirement of obtaining minimum marks is mandatory. This is further clear from the third proviso which reduces the minimum marks required for admission for candidates belonging to the Scheduled Castes and the Scheduled Tribes from 50% to 40%. The provision that where the seats reserved for the Scheduled Castes and the Scheduled Tribes cannot be filled 'for want of requisite number of candidates fulfilling the minimum requirement prescribed from that State, then such vacant seats may be filled up on all India basis with Scheduled Castes and Scheduled Tribes candidates getting not less than the minimum prescribed pass percentage' also goes to show that the minimum prescribed percentage of marks in the aggregate is mandatory. The argument of the learned counsel for the petitioner that the State Government's order dated 9th Sep. 1980 which completely removes the condition relating to obtaining of minimum marks in the aggregate at the Pre-Medical Examination for candidates belonging to the Scheduled Castes and the Scheduled Tribes violates the regula-tions made by the Medical Council is clearly right.
12. To meet the argument of invalidity resting on the violation of the regulations, the learned counsel appearing for the State submitted before us that section II of the regulations is beyond the power conferred on the Medical Council by Section 33 of the Medical Council Act. It was argued by him that the words, 'minimum standards of medical education' as they occur in Section 19A(1) of the Act refer to the medical education starting in medical colleges and that this section has nothing to do with any Pre-Medical Examination which is conducted for selecting candidates for admission to medical colleges. We are unable to agree with this submission. The standard of medical education in a medical college will depend upon various factors. One of the factors affecting the standard would be the merit of candidates admitted to the college. The requirement prescribed by Section II of the regulations that a candidate for admission must have obtained 50% marks in the aggregate in English and Science subjects for general seats and 40% for seats reserved for the Scheduled Castes and the Scheduled Tribes has, in our opinion, a reasonable nexus with the standard of medical education in medical colleges and carries out the purpose of Section 19A. Section 33 empowers the Council to make regulations to carry out the purposes of the Act, and as Section n of the regulations carries out the purpose of Section 19A, which authorises the Council to prescribe the minimum standards of medical education required for granting recognised medical qualifications, it is within the power conferred on the Council by Section 33. A regulation made in exercise of such a general power as is conferred by the opening words of Section 33 can be held to be invalid only on the following grounds; (1) Bad faith, that is to say that the powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorised or actually forbidden; (2) that the regulation shows on the face of it a misconstruction of the enabling Act or a failure to comply with the conditions which that Act has prescribed for the exercise of the powers; and (3) that the regulation is not capable of being related to any of the purposes mentioned in the Act. (See Attorney-General for Canada v. Hallet & Carry Ltd., 1952 AC 427 at Pp. 444, 445 and 450 (PC); Ross-Clunis v. Papadapoullos (1958) 2 All ER 23 (PC) and McEldowney v. Forde, (1969) 2 All ER 1039). We may also in this context refer to the case of State of Kerala v. Kumari T. P. Roshana, AIR 1979 SC 765, in which after referring to the Medical Council Act, the Supreme Court observed that the Medical Council 'has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions'. These observations support our conclusion that Section II of the regulations carries out the purpose under Section 19A and is intra vires. Apart from Section 19A, Section II of the regulations can also be supported under Section 33(1) which specifically empowers making of regulations for providing 'conditions for admission' to professional examinations. We are, therefore, unable to hold that Section II of the regulations is in any way invalid.
13. The learned counsel for the State then submitted that if the regulations are applied, no candidate can get admission for the reason that no entrance examination was held in English and therefore no one can be said to have obtained 50% of the total marks in English. It was further submitted that if the regulations were applied, the vacant seats in the categories reserved for the Scheduled Castes and the Scheduled Tribes will have to be filled up on all India basis and they cannot be made open for the candidates who did not belong to these categories and who were not admitted although they obtained more than . the minimum qualifying marks. In our opinion, these objections cannot be accepted on a closer examination of the provisions of Section II (e). The regulations do not in terms provide that the competitive entrance examination must include English as a subject. Section II (e) no doubt does contemplate that there would be English and Science subjects in the competitive entrance examination but there is no specific provision to that effect. It is difficult to conceive of an entrance examination for medical colleges without science subjects. But the same thing cannot be said about English. The medium of instruction in medical colleges is English and so the candidates for admission should have proficiency in English but in the absence of clear words we are unable to infer a mandate to hold examination in English. The words '50% of the total marks in English' as they occur in the second proviso to Section II (e) should be construed to require that if examination in English as a subject is held the candidates must secure 50% of the total marks in English. As the Pre-Medical Examination held in 1980 did not include English as a subject, there is no question of any candidate being rejected on the ground that he did not secure 50% of the total marks in English. Indeed, it would be very harsh if candidates are rejected on this ground for it was not their fault that English was not included as a subject in Pre-Medical Examination. As regards the second objection that seats remaining vacant out of the categories reserved for the Scheduled Castes and Scheduled Tribes have to be filled up on all India basis and so the petitioner and others similarly situated have no chance for admission to the vacant seats, the words used in Section II (e) in that respect are merely enabling and not compulsive. The State can decide to fill up these seats on all India basis with Scheduled Castes and Scheduled Tribes candidates getting not less than minimum prescribed pass percentage but the State is not bound to do so, The State has made Rule 9, which, as earlier noticed, says that the seats reserved for the Scheduled Castes and the Scheduled Tribes and remaining vacant will be filled up by the candidates available on the combined merit-list. The rule so made does not go against Section II (e) of the regulations because the provisions for filling up of the reserved seats remaining vacant on all India basis as contained therein is merely directory. The rule has to be read along with the regulation and it is for the State to decide what course it should adopt.
14. The regulations have statutory force. They have been made under a Statute which in so far it deals with standards of medical education falls under Entry 66 of the Union List which reads: 'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions'. The executive power of the State under Article 162 cannot be so exercised as to override a statutory provision more so when the said provision is in a field occupied by the Union List. The executive power can be used to supplement a law but not to supplant it. In the instant case, the executive power was used not to supplement but to uproot the minimum standard prescribed by the regulations for admission to the medical colleges. The order of the State Government passed on 9th September which completely removes the condition of getting minimum qualifying marks for Scheduled Castes and the Scheduled Tribes candidates is clearly violative of the regulations and cannot be upheld.
15. We will now take up the question whether the order dated 9th September, 1980, is violative of Ordinance No. 54 made by the University of Jabalpur. This Ordinance was adopted by Executive Council at its meeting held on 3rd December, 1977. Section 38 of the Vishwavidyalaya Adhiniyam, 1973, empowers the Executive Council to make Ordinances. Section 38(2) of the Act provides that an Ordinance made by the Executive Council shall come into force on expiry of fifteen days from the date on which it is made or some other prospective date as the Executive Council may specify. Section 38(3) further provides that the Ordinance so made shall, as soon as may be, be placed before the Co-ordination Committee for its approval and the Co-ordination Committee may approve it or reject it or return it back for reconsideration, either in whole or in part, together with any amendment which it may suggest. Section 38(4) then provides that if the Co-ordination Committee rejects the Ordinance, it shall cease to be operative from the date next following the date of rejection save as respects things done or omitted to be done thereunder. The scheme of Section 38 is that if the Ordinance is made by the Executive Council it comes into force after fifteen days from the date of making unless some further date is specified by the Executive Council. Although there is a duty laid on the Executive Council to send the Ordinance to the Co-ordination Committee, but the coming into force of the Ordinance is not postponed pending the consideration of the Ordinance by that Committee. The Ordinance comes into force either on expiry of fifteen days from the date of its making or as may be directed by the Executive Council. It is only when the Co-ordination Committee rejects the Ordinance that it ceases to be operative except as regards things done or omitted to be done. It is open to the Executive Council to say that the Ordinance will come into force only after it is approved by the Co-ordination Committee. In that case the Ordinance will not take effect unless it is approved by that Committee. In cases where it is desirable that identical provisions should apply throughout the State in all the Universities this is the course which should be adopted by the Executive Council to avoid confusion. Conditions for admission to medical colleges is one such subject on which there should be uniform policy throughout the State and complete co-ordination between the Universities in prescribing the conditions. On a subject like this, there cannot be two opinions that any Ordinance made should not be given effect to till it is approved by the Co-ordination Committee and applied by other Universities also. In the instant case, however, the Executive Council while approving the Ordinance on 3rd December, 1977 resolved that the same will come into force from the academic year 1979. It appears that the Executive Council expected that in the meantime the Co-ordination Committee will be able either to approve or reject the Ordinance but that was not done. We were informed that the matter is still pending before the Co-ordination Committee and no final decision has so far been taken. The Ordinance came into force from July, 1979.
16. Clause 3(b) of this Ordinance provides that a candidate for admission to the 1st year M. B. B. S. examination 'must have obtained not less than 50% marks in Science subjects at the competitive entranee examination where such examinations are held, provided further that a candidate belonging to Scheduled Castes/Scheduled Tribes maybe given a relaxation of 5% in the minimum marks required for admission.' It appears that the Ordinance was made to give effect to the recommendations of the Medical Council made in April 1977. It is strictly not in line with Section II fe) of the regulations made by the Medical Council in 1979 to which reference has already been made. The Ordinance of the University must be read subject to the regu-lations for the latter are binding on all Universities and institutions. The Ordinance permits relaxation of only 5% marks in the aggregate to candidates belonging to the Scheduled Castes and the Scheduled Tribes. In other words, according to the Ordinance, candidates belonging to these categories must secure 45% marks in the aggregate for getting admission to a medical college affiliated to the University. The regulations, on the other hand, permit admission of the candidates of these categories on their securing 40% marks in the aggregate. As earlier stated, the Ordinance cannot be given effect to the extent it violates the regulations. As the Ordinance has to be read along with the regulations and can be given effect to only in so far it is consistent with the regulations, it cannot constitute a new ground for invalidating the impugned order. We would, however, like to emphasize again that when a common entrance test for selection of candidates is held by the Government for all the medical colleges, it is very necessary that the Universities must prescribe identical conditions for admission consistent with the regulations made by the Medical Council to avoid any confusion in the matter of admission.
17. It was also contended by the learned counsel for the petitioner that the order dated 9th September, 1980, violates the petitioner's fundamental rights under Articles 15(1) and 29(2) of the Constitution and is not saved by Article 15(4) being wholly unreasonable and arbitrary.
18. Article 15(1) provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex. place of birth or any of them. Article 29(2) provides that no citizen shall be denied admission into anv educational institution maintained by the State on receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 15(4) is an exception to both Arlicles 15(1) and 29(2). It permits the State to make any special provision for the advancement of any socially or educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 15(4) has to he construed in the light of Article 46 which is one of the Articles in Part IV dealing with directive principles of State policy. This Article provides that the State shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes. and shall protect them from social injustice and all forms of exploitation. It has also to be remembered that Article 15(4) being an exception to the fundamental rights granted to all citizens under Articles 15(1) and 29(2) should not be so construed as to authorise making of a provision which completely defeats these fundamental rights. Article 15(4) attempts to balance as against the right of equality of citizens the special necessity of the weaker sections of the people by allowing a provision to be made for their advancement. To justify protection under Clause (4), the special provision must be a reasonable provision for the advancement of the backward classes and the Scheduled Castes or the Scheduled Tribes (see Mohan Singh v. State of M. P. 1980 MPLJ 665: (1981 Cri LJ 147)).
19. As observed by the Supreme Court in M. R. Ealaji v. State of Mysore, AIR 1963 SC 649 at p. 663 in making reservation under Article 15 (4) 'the interests of weaker sections of society which are first charge on the States and the Centre have to be adjusted with the interests of the community as a whole.' It was further observed that undoubted-lv the State 'has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations.' It was also observed that if admission to professional and technical colleges is unduly liberalised, it would be idle to contend that the quality of our graduates would not suffer. In that case the reservation of 68% was held to be unreasonable and inconsistent with Article 15(4) and it was said that speaking generally and in a broad way the reservation should be less than 50%. In State of A. P. v. P. Sagar, AIR 1968 SC 1379 the Supreme Court pointed out that Article 15(4) being an exception cannot be extended so as in effect to destroy the guarantee of Article 15(1) and that reservation may be adopted to advance the interest of weaker sections of society but in doing so care must be taken to see that deserving and qualifying candidates are not excluded from admission to higher educational institutions.
20. It is in the light of these principles that it has to be seen whether the petitioner can reasonably claim deprivation of her fundamental right under Article 15(1) by the impugned order of 9th September, 1980. The learned counsel for the petitioner has submitted that admission of the candidates belonging to the Scheduled Castes and the Scheduled Tribes for the seats reserved for them without fixing any minimum qualifying marks is wholly unreasonable and will result in admission only of undeserving candidates who cannot cope up with the standard of education in medical colleges. The argument of the learned counsel for the State, on the other hand, is that the provision for reservation made under Article 15(4) must be such which confers real benefit to the candidates of the Scheduled Castes and the Scheduled Tribes for whom it is meant and that the fixation of a minimum standard which brings no benefit to them at all will make the reservation illusory and will not be consistent with the spirit of Articles 15(4) and 46. The learn-ed counsel in this connection pointed out that by adhering to the minimum qualifying marks for admission at 40%, only eighteen candidates belonging to the Scheduled Castes and two candidates belonging to the Scheduled Tribes were admitted out of 216 seats reserved for them and by granting the relaxation of 5%, i.e., by reducing the minimum qualifying marks to 35 % only eight more candidates, seven belonging to the Scheduled Castes and one belonging to the Scheduled Tribes were admitted. The learned counsel submitted that this demonstrates that if the standard prescribed by the regulations made by the Medical Council is adhered to, no real benefit can be given to the candidates belonging to the Scheduled Castes and the Scheduled Tribes and they would be denied the benefit of the reservation made in their favour. The learned counsel pointed out that the competitive entrance examination started in 1971-72 and relaxation had to be allowed every year to enable the candidates of these categories to take the benefit of the reservation. It is also pointed out that in 1970-71, 71-72, 73-74, 74-75 and 75-76 the minimum qualifying marks for Scheduled Castes candidates had to be reduced to 20% and even then they were unable to take fully the benefit of reservation. Similarly, in 1970-71. 71-72. 73-74, 74-75, 76-77, 77-78, 78-79 and 79-80 the minimum qualifying marks for Scheduled Tribes candidates were reduced to 20% and in 1975-76 to 17%, yet the candidates of this category were unable to take full benefit of the reservation. It is further pointed out that the ratio of the citizens belonging to the Scheduled Castes and Scheduled Tribes to that of general population of the State is 13.09% and 20.14%, respectively, and that unless they are afforded a full opportunity and incentive, it would be impossible for them to rise to the level of other citizens and the message of social justice proclaimed by the Constitution will hardly reach to them. It cannot be disputed that the State must do every thing possible for the uplift of the Scheduled Castes and the Scheduled Tribes and other backward communities and the State is entitled to make reservation for them in the matter of admission to medical and other technical institutions. It cannot also be disputed that the conditions for grant of admission to the seats reserved for them should be such that they are able to utilise the benefit and the standard for admission must not be so high as to make the reservation entirely illusory. On the other hand, however, care should be taken that the standard of medical education is not lowered and deservine candidates of other communities are not unduly restricted in the matter of admission to the medical institutions. In the instant case, as already seen, the regulations made by the Medical Council fixed minimum qualifying marks for grant of admission to the candidates belonging to the Scheduled Castes and the Scheduled Tribes. The State cannot by executive order violate the regulations. Any step taken by the State under Article 16(4) by executive order must be consistent with the regulations. It is, therefore, not necessary for us to decide whether in the absence of the regulations the total relaxation in the matter of minimum qualifying marks for the candidates belonging to the Scheduled Castes and the Scheduled Tribes would have been reasonable and valid under Article 15(4). All that we need say is that the total relaxation of minimum marks for the candidates belonging to these categories cannot be supported under Article 15(4) being violative of the regulations which have the force of law,
21. The learned counsel for the petitioner relied upon a Full Bench judgment of the Patna High Court in Amal-endu Kumar v. State, AIR 1980 Pat 1 in which reduction of percentage of marks prescribed for the candidates of the Scheduled Castes and the Scheduled Tribes for passing selection examination from 45% to 40% and subsequently to 35% were both held to be unreasonable and violative of Article 15(1). That case related to the academic year 1978-79 when the regulations made by the Medical Council in 1979 were not in force. The learned Judges relied upon the recommendations made by the Medical Council in 1977 according to which the minimum qualifying marks for the candidates of the Scheduled Castes and the Scheduled Tribes was 45%. The learned Judges said that when an expert body had recommended fixation of minimum qualifying marks at 45% it was unreasonable for the State Government to reduce it to 40% and later to 35%. We need not express our opinion as to what view we would have taken had the regulations made in 1979 by the Medical Council been not in force. It is, however, interesting to notice that the Medical Council itself thought it necessary to reduce the qualifying marks for the candidates belonging to the Scheduled Castes and the Scheduled Tribes to 40% from 45% while making the regulations.
22. The learned counsel appearing for the State submitted that the petitioner cannot as of right claim the seats which remained vacant in the categories of the Scheduled Castes and the Scheduled Tribes and, therefore, she cannot be granted any relief. The learned counsel in support of the submission relied upon the decision of the Supreme Court in Chitra Ghosh v. Union of India, AIR 1970 SC 35. In that case me of the questions canvassed related to the merits of the nominations made to the reserved seats. In that context it was observed that the assumption that if nominations by the Central Government to reserved seats were not in accordance with the rules all such seats not properly filled up would be thrown open to the general pool was wholly unfounded. In the case before us, Rule 9 of the rules for admission to which reference has already been made specifically provides that in case the seats of reserved categories of Scheduled Castes and Scheduled Tribes remain vacant, these seats will be filled up by the candidates available on the combined merit-list. This rule has to be read along with the regulations of the Medical Council which provide that the vacant seats in these categories may be filled up on all India basis with Scheduled Castes and Scheduled Tribes candidates getting not less than the minimum prescribed pass percentage. It is open to the State to decide to fill up the vacant seats on all India basis as provided by the regulations but as the regulations in that matter are not mandatory it cannot be said that the seats must be filled on all India basis with Scheduled Castes and Scheduled Tribes candidates. If the State does not decide to take up this course of filling up the seats on all India basis, Rule 9 of the admission rules would be applicable and the petitioner and other candidates from the general category would be entitled for selection for the vacant seats on the basis of combined merit list. There was no provision like Rule 9 of the admission rules in the Chitra Ghosh's case and, therefore, that case is distinguishable.
23. We will now take up the challenge to the order dated 18th September 1980 by which 3% seats were reserved for the children and grand children of freedom fighters. Out of 720 seats, 21 seats fall in this category. The first contention of the learned counsel for the petitioner in this connection is that the order was passed after holding of the examination and declaration of result of the examination and, therefore, it is bad on the ground of promissory estoppel. We are unable to accept this argument. The rules for admission made by the order dated 2nd April, 1980 were made in the exerciae of executive power They could be changed at any stage by a subsequent order passed by the State GOVernment subject to the regulations made by the Medical Council. There is no prohibition in the regulations of the Medical Council for reservation in favour of children or grand children of freedom fighters. It was, therefore, open to the State Government to modify the admission rules by the order dated 18th September, 1980 to make provision for reservation for the children and grand children of freedom lighters. AS regards the argument of promissory estoppel, it is difficult to appreciate as to how any detriment was suffered by the petitioner by her act of appearing in Pre-Medical Examination which act was independent of the actual number of seats available. In all likelihood the petitioner would have appeared even if the reservation in favour of the children and grand children of the freedom fighters had been made at the initial stage itself. It is not a case where all the general seats have been withdrawn and taken to any reserve category. In our opinion, there is absolutely no ground for invoking the doctrine of promissory estoppel.
24. It was then contended by the learned counsel for the petitioner that the reservation specially for the grand children of freedom fighters is unreasonable and violates the petitioner's fundamental right under Article 14. Reservation in respect of children of political sufferers was upheld by the Supreme Court in D. N. Chanchala v. State of Mysore. AIR 1971 SC 1762. In that case the Supreme Court observed that the political sufferers in consequence of their participation in the emancipation strug-gle became unsettled in life, in some cases economically ruined and were, therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage and that such a classification has a reasonable nexus with the object of the admission rules which can be nothing else than a fair and just distribution of seats. What the Supreme Court said about the children of political sufferers can also be applied to the grand children. The suffering of freedom fighters in some cases was such that the entire family was ruined economically and the children and grand children of freedom fighters had to suffer from that disadvantage. It is true that the reservation is capable of being abused but we cannot proceed to judge the validity of the reservation on the assumption that it would be abused. We have to expect that the reservation would be given effect to in letter and spirit and will be used for the benefit of the children and grand children of real freedom fighters. We may also point out that the freedom struggle ended on 15th August, 1947, 33 years before, and if this reservation is continued ad infinitum, at some stage it will become unreasonable and will have to be struck down. This is a matter which the Government will keep in mind in continuing the reservation in future.
25. We must also refer to the argument that the total reservation including the reservation made for the children and grand children of freedom fighters amounted to 54% and violated the reasonable limits within which reservations can be made. We have already seen that in Balaji's case (AIR 1963 SC 649) (supra) the Supreme Court observed that the reservation should normally not go beyond 50%. In the instant case, taking into account all the reservations including the reservation in favour of Govern-ment of India nominees and the children and grand children of freedom fighters the total reservation works out to 54%. However, the reservation of 15% seats made for women candidates became redundant as the requisite number of women candidates qualified in the general pool on merit. So out of the total reservation of 54% seats, only 39% seats eventually remained reserved. Thus the tolal reservation remains much below 50% and cannot be held to be invalid.
26. The result of the discussion is that the order of the Government dated 9th September, 1980 cannot be upheld. The vacant seats reserved for the Scheduled Castes and the Scheduled Tribes cannot be filled up by the candidates of these categories who did not secure minimum qualifying marks prescribed by Section II (e) of the regulations. It is open to the State to fill up these seats on all India basis with Scheduled Castes and Scheduled Tribes candidates who secure minimum qualifying marks. If no decision to that effect is taken within a reasonable time, the vacant seats should be made available to the qualifying candidates available on the combined merit-list. As it is open to the Government to take either of these steps, we are not inclined to issue any direction in that respect.
27. Before concluding, we must point out that seven Scheduled Castes candidates and one Scheduled Tribes candidate was admitted after the Board reduced the minimum qualifying marks for these categories from 40% to 35%. This reduction was also in violation of the regulations framed by the Medical Council but the candidates admitted on the basis of this reduction have not been joined in the petition and their admission has not been specifically challenged. Our decision, therefore, will not affect their admission.
28. The petition is partly allowed. The order dated 9th September, 1980 (Anne-xure R-2) is quashed. There shall be no order as to costs. The security amount be refunded to the petitioner.
Bhachawat, J.
29. The central controversy in the matter was about the validity of the order dated 9-9-1980 whereby the State Government relaxed the requirement of minimum qualifying marks with regard to the candidates of scheduled castes and scheduled tribes. It has already been expressed in para 20 of the judgment at p. 137 that 'It cannot also be disputed that the conditions for grant of admission to the seats reserved for them should be such that they are able to utilise the benefit and the standard for admission must not be so high as to make the reservation entirely illusory. On the other hand, however, care should be taken that the standard of medical education is not lowered and deserving candidates of other communities are not unduly restricted in the matter of admission to the medical institutions.'
30. Social and civic equality is the bedrock of Indian polity, as is enshrined in our Constitution. This can flourish amongst the society of equals. It is, therefore, really very necessary to advance socially, economically and educationally the persons of scheduled castes and scheduled tribes as directed in Article 46 of the Constitution otherwise it would remain mere decorative in the Constitution and it would be like a cheque payable at the desire or convenience of a Bank; but all that has to be done in the four corners of the law.
31. Statutory provision cannot be controlled or whittled down by the general principles of equity, justice and good conscience. Those principles can have application on the field outside statutory provision.
32. In this view of the matter, as already discussed so adroitly in an inimitable style with sententious brevity in the judgment of the Chief Justice, the order impugned being contrary to the statutory Regulations under Section 33 of the Medical Council Act, 1956, has to be quashed. On this point as well as on other points, as I entirely agree with the view taken by the Chief Justice, I feel no necessity to burden the judgment with any detailed discussion.
ORDER OF THE COURT
33. The petition is partly allowed. The order dated 9th September, 1980 (Anne-xure R-2) is quashed. There shall be no order as to costs. The security amount be refunded to the petitioner.