V. Sheemathangam vs State of Tamil Nadu and others

This application is filed seeking review of the order dated 27-11-1995 passed by this Court in Writ Petition No. 11022 of 1995 only on the

ground that this Court followed the Division Bench Judgment of the Supreme Court consisting of two Honourable Judges in the case of Dr Santosh

Kumari (Mrs) Vs. Union of India (UOI) and Others, as against the Division Bench Judgment of the Supreme Court consisting of three Honourable

Judges in the case of Minor A. Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, , contending that in case of conflict of

views between two Division Bench Judgments of the Supreme Court, the view taken by a Bench consisting of larger number of Judges should be

followed irrespective of the fact that it was an earlier Judgment.

Writ Petition No. 11022 of 1995 was filed by the applicant seeking a Writ of Mandamus directing the respondents 1 to 3 to select and admit

the petitioner to the first year M.B.B.S. course for the academic year 1995-96. She had applied for admission for consideration under special

categories viz., (i) seats reserved for children and grand-children of freedom fighters, and (ii) seats reserved for children whose parents worked for

the enrichment, propagation and development of Tamil Language and significant contribution made to Tamil Society, Culture and Literature.

The petitioner was placed at serial No. 108 in the first special category. Two candidates who has secured higher marks than the petitioner in

that category were selected and admitted on the basis of merit. In the second special category the petitioner was placed at serial No. 28. There

were only seven seats in that category. A candidate at serial No. 34 in that list was selected and admitted applying the rule of reservation.

Assuming that the selection of that candidate was wrong, it could not benefit the petitioner as there were several other candidates above the

petitioner on the basis of merit. Thus the petitioner had no chance of selection and admission. Hence the Writ Petition was dismissed by the Order

dated 27-11-1995 following the decision of the Supreme Court in the case of ""Dr. Santhosh Kumari v. Union of India 1994 AIR SCW 5057

(supra) holding that the allotment, of seats should go according to merit irrespective of who approached the Court and who did not.

Shri A. D, Samayaji, learned senior counsel for the applicant contended that the Judgment in the case of Minor A. Peeriakaruppan and Sobha

Joseph Vs. State of Tamil Nadu and Others, was delivered by a Bench of the Supreme Court consisting of three Honorable Judges holding that

the claims of only the petitioners before the Court should be examined and not others who are not before the Court irrespective of the respective

merits of the candidates. Although in the Judgment in the case of ""Santhosh Kumariv. Union of India 1994 AIR SCW 5057 (supra) it is held that

the allotment of seats should go according to merit irrespective of whether a candidate has approached the Court or not, it was delivered by a

Bench consisting of two Honourable Judge of the Supreme Court. In this view this Court should have applied the decision in ""Minor a

Periakaruppan"" case as it is a Judgment of a larger Bench consisting of three Honorable Judges and ought to have allowed the writ petition granting

the relief to the petitioner. He placed reliance on two decisions in this regard.

Shri D. Murugesan, learned Special Government Pleader representing the respondents submitted that there is no conflict of views in the cases of

Minor A. Periakaruppan"", ""Dr. Santhosh Kumari"". The decision rendered in the case of ""Minor. A. Periakaruppan"" governs the facts of that case

only, that too on certain statements and submissions made on behalf of the parties in the matter of granting relief. The case of ""Dr. Santhosh

Kumari"" is an authority for the proposition that the available vacancy in the professional courses must be filled up on the basis of merit without

depending upon who comes to Court and who does not. He also submitted that the same view is expressed in few more decisions of the Supreme

Court and two Judgments of the Division Bench of this Court. He cited few decisions in support of his submissions.

I will refer to some of the decisions cited on either side which are considered appropriate for disposal of this review application.

Before proceeding further, I consider it useful to refer to the question that came up for consideration and the relief granted in Minor A.

Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, Whether the unit-wise distribution of seats for the purpose of selection of

candidates for admission into medical colleges in the State of Tamil Nadu was violative of Articles 14 and 15 of the Constitution, came up for

consideration. It was held that the fact that the applicant was free to apply to any one unit did not take the scheme outside the mischief of Articles

14 and 15 on the ground that classification must be justified based on objective criterion and it must have reasonable nexus with the object

intended to be achieved. The Object of selecting the best candidates for being admitted to the medical Colleges could not be satisfied by the

unitwise distribution of seats. In this view the selections impugned were held to be not in accordance with the rules.

Paragraph 31 of the said Judgment reads :--

For the reasons mentioned above we are of opinion that the selections impugned in these petitions cannot be held to have been made validly

inasmuch as the seats were distributed on unit wise basis and further that the interviews were not held in accordance with the rules. But despite

coming to that conclusion we are unable to set aside the selections already made. The selected candidates have not been made parties to these

petitions. They have already joined the course and are undergoing training. Their selection cannot be set aside without giving them an opportunity

to put forward their case. It is true that the petitioner had filed applications to permit them to have recourse to Order 1, Rule 8, CPC for the

representation of the persons interested in opposing these applications but no order has been passed on those applications and it is now too late to

have recourse to that procedure even if that procedure is permissible under law. We are told by the learned Advocate General of Tamil Nadu that

24 seats still remain to be filled up. He has assured us on behalf of the State that those seats will be filled up in accordance with orders of this

Court. There are about 80 persons, who we are told are in the waiting list. Some of the unsuccessful applicants had moved the High Court of

Madras for relief similar to that sought by the petitioners herein. But it appears their writ petitions have been dismissed. Some out of them have

intervened in these petitions. Other non-selected candidates have evinced no interest in challenging the selections made. Under the circumstances, it

is reasonable to assume that they have abandoned their claim and it is too late for them to press their claim. Under these circumstances, after

discussion with the Counsel for the parties we have come to the conclusion that these petitions should be allowed subject to the following

conditions :

The Slate of Tamil Nadu shall immediately constitute a separate expert committee consisting of eminent medical practitioners (excluding all those

who were members of the previous committees) for selection to the 24 unfilled seats. The selection shall be made on statewise basis. The

committee shall interview only the candidates who are shown in the waiting list, the persons who unsuccessfully moved the High Court of Madras

and the two petitioners before this Court. They shall allot separate marks under the five heads mentioned in the rule. The committee shall take into

consideration only matters laid down in he rule, exclude from consideration all irrelevant materials and thereafter prepare a gradation list to fill up

the 24 seats mentioned earlier. It is ordered accordingly. We think this is a fit case where the petitioners should get their costs from the State of

Tamil Nadu.

In the case of Dr. Santhosh Kumari 1994 AIR SCW 5057 the point directly considered was one relating to allotment of seats according to

merit on the principle without depending upon who moved the Court, In paragraph 8 of the said Judgment it is stated thus :--

The allotment of seats should go according to merit. It does not depend upon who comes to Court and who does not. The matter is one of

principle and should not depend upon who comes to the Court. A more deserving candidate may not have the means to approach the Court.

A Division Bench of the Supreme Court consisting of three Honourable Judges in the case of Punjab Engineering College Chandigarh through

its Principal Vs. Sanjay Gulati and Others, did not agree that the petitioners in those petitions should be preferred for admission irrespective of

merit and ignoring the merit of others who were higher up in the merit list but did not approach the Court. In the said Judgment reference is made

to the case of State of Kerala Vs. Kumari T.P. Roshana and Another, of the said Judgment, State of Kerala Vs. Kumari T.P. Roshana and

Another, it is stated thus :--

The selection of these 30 students will not be confined to those who have moved this Court or the High Court by way of writ proceedings or

appeal. The Measure is academic excellence, not litigative persistence. It will be thrown open to the first 30, strictly according to merit measured

by marks secured. The apportionment as between graduates and pre-degree students and the application of the communal reservation will apply to

these 30 to be selected. The selection Committee will make its decision on or before the 31st Jan. 1979. The Universities concerned will convery

their approval to the Government for the necessary addition to the student strength in obedience to the direction of this Court on or before the 27th

Jan. 1979.

(underlining is mine).

The Full Bench of Delhi High Court in Sandhya Kabra and Others Vs. University of Delhi, , after referring to various Judgments of the

Supreme Court has also taken the view that the vacancy occurring should be filled on the basis of merit and the claims of the maritorious

candidates not approaching the Court, cannot be a ground to ignore their claim.

A Division Bench of the Supreme Court consisting of three Honourable Judges in the case of Union of India (UOI) and Another Vs. K.S.

Subramanian, has stated that a High Court should try to find out and follow the opinions expressed by larger Benches of the Supreme Court in

perference to those expressed by smaller Banches, and that is the practice followed by the Supreme Court itself. The practice has now crystallised

into a rule of law declared by the Supreme Court. If, however, the High Court was of the opinion that the view expressed by the larger Benches of

the Supreme Court were not applicable to the facts of the case, it should say so giving reasons supporting its point of view.

Having regard to the facts of the case and the questions that came up for consideration in the case of Minor A. Peeriakaruppan and Sobha

Joseph Vs. State of Tamil Nadu and Others, , it is clear that the question whether the claims of the more meritorious candidates who did not

approach the Court should be ignored and those before the Court were only to be preferred, did not come up for consideration. From paragraph

31 of the said Judgment extracted above, it is clear that there were about 80 persons in the waiting list; some of them had moved this High Court

unsuccessfully; some of them had intervened in the Supreme Court; other non-selected candidates did not evince interest in challenging the

selections made. Under the circumstances it was assumed that they bad abandoned their claim, and that it was too late for them to press their

claim. The learned Advocate General had submitted that 24 seats still remained to be filled up and those seats will be filled up in accordance with

the orders of the Court.

As is evident from the last paragraph of the said Judgment, a separate Expert Committee consisting of eminent medical practitioners for

selection of 24 unfilled seats was to be constituted to inverview and select only from the candidates who were shown in the waiting list, candidates

who unsuccessfully moved the High Court and the two petitioners before the Supreme Court. Thus it is clear that even in that case the claims of the

petitioners alone were not to be considered merely because they were before the Court. Whereas in the case of ""Dr. Samthosh Kumari"" AIR

1994 SCW 5057 the point directly came up for consideration, and it is clearly stated in paragraph 8 of the said Judgment, that the allotment of

seals should go according to merit, it should not depend upon who comes to Court and who does not The matter is one of principle. A more

deserving candidate may into have means to approach the Court.

The later Division Bench decision of the Supreme Court consisting of three Honourable Juges in the ease of Punjab Engineering College

Chandigarh through its Principal Vs. Sanjay Gulati and Others, has also expressed the view that the claims of more meritorious candidates in the

list should not be ignored on the ground that they did not approach the Court, and that the seats which became available should be filled up strictly

in accordance with merit.

In the first place I do not find any conflict of views on the principle or the proposition of law that the available seats must be filled up on the

basis of merit notwithstanding a candidate has not approached the Court. The object is one of providing academic excellence. The test is to select

the best in a given category of candidates in the matter of admission to professional courses. The decision rendered in the case of Minor A.

Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, in my view governs the facts of that case so far it relates to the granting

the reliefs to the candidates who approached the Court as is evident from paragraph 31 of the Judgment extracted above, taking a view that some

of the students did not evidence interest or abandoned their claim, on the basis of the statement made by the learned Advocate General and after

discussing with the learned counsel for the parties, subject to the interview to be conducted by an Expert Committee to select candidates from the

waiting list candidates who unsuccessfully moved the High Court and the petitioners in the Supreme Court. It-is well understood in the law of

precedent that a decision is an authority on the point raised, considered and decided.

This apart, a Division Bench consisting of three Honourable Judges of the Supreme Court in Punjab Engineering College Chandigarh through

its Principal Vs. Sanjay Gulati and Others, have also held that the claims of more meritorious candidates could not be ignored on the ground that

they did not approach the Court.

Having regard to the decisions referred to above. I have followed the opinion expressed in the decisions of the Supreme Court consisting of

two and three Honourable Judges directly on the point and for the reasons stated by me that the case of Minor A. Peeriakaruppan and Sobha

Joseph Vs. State of Tamil Nadu and Others, has no application to the facts of the case on hand keeping in view of the indication given in the case

of Union of India (UOI) and Another Vs. K.S. Subramanian, .

In the light of the decisions aforementioned, the facts and circumstances of the case, and for the reasons stated, I do not find any merit in this

review application, as the law laid down by the Supreme Court directly on the point is followed and applied. In the result finding no merit or

ground to review my order dated 27-11-1995 passed in W.P. No. 11022 of 1995, this Review Application is dismissed.

Application dismissed.