S.N Jha, J.:— These four writ applications raising a common grievance on behalf of 21 petitioners have been heard together and are disposed of by this common judgment.

2. Admission to professional courses, particularly the medical course, has been subject of debate and dispute at various levels. Courts have issued directions and laid down guidelines from time to time. It has, however, not been possible to evolve a fool proof procedure of admission. These writ petitioners who have been selected for admission to different post Graduate Medical Courses are aggrieved by allotment of course and/or college.

3. Candidates are selected for admission to the various Post-Graduate Courses in medical education in the State of Bihar on the basis of a test known as Post Graduate Medical Admission Test (PGMAT, in short) held every year. As per the prospectus inviting applications for the 1992 Test, 50% of the seats were reserved for the candidates of Scheduled Castes (14%), Scheduled Tribes (10%), Extremely Backward Class (14%), Backward Class (9%) and Ladies (3%) categories. The candidates were required to indicate their preferences for the course and college. After preparation of merit list on the basis of marks obtained by them in the Test, allotment of course and college was to be made on ‘merit-cum-choice’ basis as indicated in the applications.

4. Although seats were reserved for each category in the matter indicated above, the State Government took a policy decision, as contained in the resolution of the Personnel and Administrative Reforms Department dated 7th Feb. 1992, to admit candidates of ‘reserve’ categories qualifying for admission by virtue of merit and not reservation, against ‘open’ seats in the general category, just as they do in the matter of appointment. In this manner, however, many candidates of the reserve categories qualifying for admission on merit found themselves placed at the bottom of the list in the general category. Being at the bottom, they were naturally denied the course/college of their choice as the ‘open’ seats of a particular course/college had already been allotted to those placed higher in the list. On the other hand, those belonging to the same reserve categories selected by virtue of reservation, were able, to get the same course/college, as per their choice, because of their high position in the merit list in that particular category. This was because of the fact that seats in each course were reserved for different categories. The net result of allotment of course/college in the above manner is that candidates of the reserve categories securing higher marks in the Test and selected on merit against open seats were not able to get the course/college of their choice while the candidates of the same very category securing lesser marks in the Test and selected by virtue of reservation have been able to get the same very course/college of their choice. This is the core of grievance in these writ petitions.

5. As regards the anomalies arising from the above procedure of selection/admission, it is said that the State Government upon consideration of the matter has already taken a policy decision as contained in resolution of the Health and Medical Education Department dated 22nd March, 1994. We shall come to the resolution later in this judgment.

6. This Court in the case of Md. Ashger Ali Khan v. The State of Bihar (1994 (2) PLJR 624) has held that reservation of seats for the Scheduled Castes, Scheduled Tribes etc. is not unconstitutional. Counsel for the petitioners in the light of the said decision very fairly did not go into the question of reservation in these cases. Without touching upon the issue of reservation I would say that if seats in each course or discipline are not reserved for different categories, it would mean that those candidates who come in the merit list by virtue of reservation may never get chance of admission in particular course/subjects which are generally supposed to be more coveted or prestigeous, as per their choice, and they will have to be content with subjects which are usually nobody's choice. That will not be given full effect to the scheme of the reservation. Seats in each course or subject, accordingly, have to be reserved within permissible limits for the reserve candidates. On the other hand, if reserve candidates coming on merit are admitted against open seats in the general category, in contradistinction to those who are selected by virtue of reservation, as indicated above, they may not get course/college of choice while their counter-parts of the same category getting admission by virtue of reservation may be able to get course/college of choice despite the fact that they secured less marks and were placed lower in the over-all merit list.

7. So far as the question of selection/admission of reserve candidates against open seats in the general category on the basis of their merit is concerned, as has been held by the Supreme Court in Asif Hameed v. State of Jammu and Kashmir (AIR 1989 SC 1899), unless the procedure to fill the general seats in the above manner is found to have resulted in excessive representation to reserve categories, the same cannot be said to be impermissible. Nothing of the kind has been stated on behalf of the petitioners and, therefore, that falls outside the pale of controversy in these writ petitions.

8. The moot question for consideration is whether the present procedure of admission of the reserve category candidates, coming on merit against open seats in the general category as against those of the same category coming by virtue of reservation, is just and proper and in accordance with Art. 14 of the Constitution. A side question for consideration is whether the above decision of the State Government dated 22nd March, 1994 has removed the anomalies and injustice as professed by the respondents.

9. The facts of the case are not in dispute. The respondents concede that the procedure of admitting meritorious candidates of reserve categories against open seats in the general category has resulted in serious anomaly and injustice to them. Candidates possessing better merit are relegated to ‘inferior’ course/college, as per their own estimate, while their counter parts of the same category with lesser marks find themselves in an enviably advantageous position. Being at the top in the merit list for that category they are able to get the course/college of their choice. There is no doubt that the above procedure results in hostile discrimination amongst the persons of the same class. It makes distinction amongst similarly situate persons without serving any object. Surely, the object could not be to confer more advantes or benefits on less meritorious candidates than their counterparts.

10. Clause 5 of the prospectus provides for reservation. Clause 6(ii) provides for preparation of merit list and allotment of course and college on ‘merit-cum-choice’ basis. It reads as follows:—

“Merit list will be prepared on the basis of the marks obtained in the PGMAT and the choice subject/course and institution will be given on merit-cum-choice basis as indicated by the candidates in the Application Form provided the candidate fulfills other criteria laid down in the prospectus.”

A combined reading of the two provisions as regards reservation and selection of candidates and allotment of course/college on ‘merit-cum-choice’ basis leaves no room for doubt that while a minimum of 50 per cent seats are to be filled from amongst candidates of the different reserve categories, course and college are to be allotted on merit-cum-choice basis. If a candidate securing better marks and, thus, possessing better merit is not able to get course/college of his choice, the procedure cannot be said to be in conformity with the provision regarding selection and allotment of course/college on merit-cum-choice basis.

11. In my opinion, the anomaly arises on account of the fact that open seats in the general category are filled up first (of course, on merit-cum-choice basis) and in that process the candidates of reserve categories qualifying for admission on merit are also adjusted/admitted against open seats. The idea behind reservation of 50 per cent seats basically is to ensure that at least 50 per cent of the seats are filled by the candidates of the different reserve categories. If reserve candidates are admitted at the first instance on merit against reserved seats in their respective category and those of the same category also qualifying for admission, by virtue of reservation or otherwise, but placed below them are adjusted along with general candidates, according to merit, against open seats in the general category, the anomaly can be fully removed. At first glance it may appear somewhat incongruous but on close examination would be workable, just and proper. If the procedure is changed in the manner that the reserve candidates are first considered and admitted against reserved seats of their respective categories on the basis of the merit they will be able to get the course and college of their choice because seats are already reserved for them in each course or subject. The rest of the candidates of that particular category placed lower than them but qualifying for admission in excess of the seats reserved for them may then be adjusted against open seats in the general category along with general candidates on merit. Naturally, they will be placed at the bottom in the general category but coming as they do by virtue of the reservation or less merit, they cannot make a grievance of that. They cannot also make a grievance of the fact that by virtue of their low placement in the merit list of the general category, they are not able to get course/college of their choice. That is how the interest of reserve category Candidates can be best served without violating the norm of selection and allotment of course/college on merit-cum-choice basis.

12. As per clause (6)(iii) of the Prospectus, the candidate has to secure at least 50 per cent marks to become eligible for admission in any course. In the case of candidates of Scheduled Castes/Tribes the minimum qualifying marks have been fixed at 40 per cent. Thus, a general merit list of all eligible candidates can be prepared. After preparing the said merit list the reserved seats in each category may be filled up from amongst the toppers in the respective category. This will ensure allotment of course/college according to their choice as far as possible. After filling up the reserved 50 per cent seats in the above manner, if more reserve candidates qualifying for admission are available they may be adjusted against open seats in the general category along with general candidates on the basis of their inter se merit at the time of filling up of the open seats. If, on the other hand, eligible reserve candidates are not available in sufficient number for admission against reserved seats, it will be open to the Government to decide as to how to fill the reserved seats by de-reserving the seats and admitting general candidates against them or lowering the eligibility of reserve candidates. In, fact, this can be done, and is often done, in respect of all categories of candidates. In this manner, all eligible reserve candidates would be able to find berth. What is more important is that they would also be able to get course and college of their choice as far as possible on merit-cum-choice basis without infringing upon the reservation policy. After all, what is the purpose of reserving 50 per cent seats and providing that those who come by virtue of merit will be admitted against open seats in the general category. The purpose is obviously to protect the interests of the Scheduled Castes, Scheduled Tribes and other Backward Classes. The above procedure will not only protect their interests but also ensure compliance of the ‘merit-cum-choice’ rule. This will not affect the general candidates who are in any case, selected and allotted course/college on merit alone.

13. The respondents have relied on the resolution of the State Government dated March 22, 1994. The said resolution has been taken, professedly, to remove the anomalies arising out of the adjustment of reserve candidates against open seats at the stage of preparation of the first merit list, or later, while filling the casual vacancies. It has taken into account the fact that on account of readjustment against open seats, candidates have often to lose their choice of course/college. The resolution provides that casual vacancies occurring at later stage in the general category or reserve category will be filled from amongst the candidates of the respective category on merit and that in that process no candidate will be allotted college/course below the choice of the college/course already allotted to him. The resolution appears to take due care of the grievance of candidates who by reason of re-adjustment at the stage of filling of the subsequent vacancies often had to lose the college/course of their choice. However, so as far as the preparation of the main merit list is concerned, the resolution does not appear to bring about any material change. Clause (4)(Ka) and (Ga) of the resolution provides that 50 per cent seats of the general category shall be first filled on merit-cum-choice basis and, similarly, candidates of the reserve categories will also be allotted college/course on merit-cum-choice basis in their respective category. If all open seats are, thus, filled up first, it may well be that candidates of the reserve categories coming on merit by virtue of their low placement in the merit list of general category may not get the college/course of their choice while candidates of the same category coming in by virtue of reservation may get the same very college/course as per their choice, as before. Seats in each course are admittedly reserved in each category and those candidates, although placed low in the over-all merit list, may be placed high enough in the merit list of a particular reserve category to get the course/college which has been denied to the candidate of the same category placed higher than him in the over-all merit list. The position thus, remains the same. The resolution, therefore, does not improve the position at all. In my opinion, the anomalies can be best removed only by following the procedure as suggested above, that is to say, by filling up the reserved seats first by admitting the candidates of reserve categories on merit-cum-choice and then take up the seats of the general category. The general seats will also be likewise filled up on merit-cum-choice basis. If a candidate belonging to a reserve category is able to mark grade along with general candidates he naturally will also be admitted on merit-cum-choice basis along with them. It will also serve the object envisaged in the previous circular of the State Government dated Feb. 7, 1992. Only the order in which seats are filled will be changed. Instead of filling up the general seats first, reserved seats will be filled up first.

14. In matters of admission to professional courses merit must be allowed to play the dominant role. Side by side, the interests of the socially and educationally backward classes of citizens or the weaker sections of the society including Scheduled Castes and Scheduled Tribes have also to be kept in view. Antagonists of reservation say that reservation and merit are incompatible to each other. According to them, reservation is always at the cost of merit. The procedure suggested above will ensure harmony between merit and reservation at least to the extent that as amongst the reserve category candidates, the allotment of course and college will be purely on the basis of merit.

15. A person may qualify for admission in more than one category. If a candidate belonging to Scheduled Caste or Tribe or Backward class comes on merit, he is entitled to be admitted in both categories. By forcing him to take admission in the general category, which may result in disadvantageous or less advantageous position would not be just and proper at all. In such case therefore, endeavour should be to ensure that he gets full benefit of reservation. That is possible only when the reserved seats are filled up first so that the reserve candidates may effectively and fully exercise their option.

16. I would like to make special mention of the girls category. There may be cases where girl candidates belonging to a reserve category qualify for admission on merit as well. There may be other cases where girl candidates not belonging to any reserve category may qualify for admission on merit. There may be a third type of cases where girl candidates belonging to a reserve category may qualify for admission not on merit but by virtue of reservation. Since seats of the reserve categories have to be filled up first, as suggested above, the girl candidates qualifying for admission by virtue of reservation or on merit will naturally be considered first for admission against seats reserved for them. If she belongs to any other reserve category, she will have a choice of category as to whether she would like to be considered in the girl's category or the other category which she belongs to. So far as preference between a girl candidate and other reserved category candidate inter se is concerned, it has to be allowed in favour of the candidate belonging to scheduled castes/tribes or other backward classes. The women may constitute weaker section of the society and, therefore, may have special status so far as promoting the educational interest of the weaker section of the people within the meaning of Art. 46 of the Constitution is concerned. However, protection guaranteed under Art. 15(4) of the Constitution is more sacrosanct. A girl not belonging to socially backward classes or scheduled castes/tribes may deserve certain privileges under Art. 46 as a weaker section of the people. The position of the girl belonging to socially backward class or scheduled castes/tribes, however, would be more special. Therefore, a girl candidate belonging to the scheduled castes/tribes or other backward classes will be entitled to choice not only as between the girls category or other reserved category but will also be entitled to preference vis-a-vis a general girl candidate in the girls category. Those not getting berth in either of the two categories may still be considered for admission against open seats in the general category, of course, subject to eligibility and on merit.

17. The present procedure of admission to Post-Graduate Medical Course, thus, cannot be said to be just or rational and needs to be suitably revised. The question for consideration then is whether any consequential order in the light of this judgment should be passed in favour of the petitioners.

18. The petitioners belong to 1992 batch. Although, the actual session commenced sometime in 1993, by now, the students must have covered a substantial part of the course. In fact, some of the courses are of only one year's duration. Making the judgment applicable to the 1992 batch would involve a chain of changes of course and/or college. The cases of the petitioners cannot be considered in isolation. Re-placement of the petitioners would necessarily involve others. Those who are not before use may be adversely affected. For example, giving full effect to this judgment would mean that candidates who were not entitled to particular course or college, as per the judgment, may have to lose the same in favour of petitioners or others similarly situate. In fact, a person already admitted to a degree course may have to be relegated to disploma course. It would not be equitable to do so, particularly in their absence. Reliance was placed on Anand S. Biji v. State of Kerala ((1993) 3 SCC 80) on behalf of some of the petitioners but even in that case, the guidelines laid down by the Court were made applicable from 1994. I am, therefore, though with a heavy heart, constrained to deny the conseqeuntial benefits of the judgment to the petitioners but would direct that the same be implemented in all future admission on the basis of 1994 Test and onwards. The State Government shall frame and issue instructions/circular accordingly.

19. These writ petitions are, accordingly, disposed of with observations and directions mentioned above. There will be no order as to costs.

Narayan Roy, J.:— 20. I agree.

Order accordingly.