SUPREME COURT OF INDIA

Before:- S.P. Bharucha, A.P. Misra and D.P. Mohapatra, JJ.

C.A. Nos. 6332-33 of 1998 (Arising out of SLP (C) Nos. 22306-22307 of 1997). D/d. 11.12.1998.

Dr. Suresh Bhagat - Appellants

Versus

Competent Authority - Respondents

Jammu and Kashmir Reservation Rules, 1994, Rule 22 - Post Graduate admissions in State Government Medical Colleges - Appellants seeking reservation for scheduled caste and scheduled tribes and socially and educationally backward classes - Interim order stating that in case writ petitioners succeeded, authorities would be bound to admit them - 12 seats were kept vacant - Held, that all the 12 seats that were kept vacant shall be allotted to original writ petitioners - Fresh advertisement to be issued stating that previous advertisement was no longer effective.

[Paras 6 and 8]

JUDGMENT

1. Special leave granted.

2. The order under challenge is passed by a Division Bench of the High Court of Jammu and Kashmir. It relates to Post Graduate admissions to the State Government Medical Colleges at Jammu and Srinagar. The relevant year is 1995-96. The admissions are governed by the Jammu and Kashmir Reservation Rules, 1994 made under Section 124 of the Constitution of Jammu & Kashmir which is in pan materia with Article 309 of the Constitution. Rule 22 sets out the reservation for Scheduled Caste and Scheduled Tribes and socially and educationally backward classes.

3. The appellants claimed the benefit of such reservation, being members of the Scheduled Castes and Scheduled Tribes. Such reservation not having been granted, they filed writ petitions in the High Court of Jammu & Kashmir. At the hearing of the writ petition a direction was issued to the State Government to recast and suitably amend the rule. The order was challenged in an appeal before a Division Bench. In the appeal an interim order was passed on 27th May, 1997 in these terms:

"In these circumstances, we think it proper to modify the order of stay passed by this Court dated: 30-5-96 to the extent that the respondent/competent authority and the State shall be at liberty to make selections Order dated December 11, 1998 in C.A. Nos. 6332-33 of 1998 (Arising out of SLP (C) Nos. 22306-22307 of 1997) for M.D./M.S./Diploma Courses in various disciplines in Government Medical Colleges of Jammu and Srinagar in accordance with the advertisement notice. But it is made clear that this selection will be without prejudice to the rights of writ petitions in all the writ petitions and in case they succeed in their writ petitions, the State Government, the Medical College Authorities and the Competent Authority shall not have the defence available that there are no seats available for them. In case the writ petitioners succeed in their cases, all the Authorities concerned shall be bound to admit them to the concerned courses, in case such an order is passed by this Court."

4. The appeal was thereafter allowed and the writ petitions were made absolute. However, in regard to the 12 seats that had been kept vacant pursuant to the order dated 27th May, 1997, the Division Bench stated:

"We had modified the order of stay on 27-5-1997. We have been informed at the Bar that the results were declared and candidates admitted but certain seats have been reserved.

Since the Competent Authority has not advertised seats for the reserved categories, therefore, there may be candidates other than the writ petitioners who may be belonging to certain reserved categories but have not applied under the reserved categories, therefore, we direct that the seats reserved for Scheduled Caste, Scheduled Tribe and other reserved categories shall be filled up in accordance with inter-se merit of these candidates. The Competent Authority shall issue an advertisement in the news papers asking the candidates who had applied and who had competed for a seat in M.D./M.S., that they shall inform the Competent Authority about their claim of belonging to a particular reserved category. This shall be done within one month and after receipt of such claims, in accordance with SRO 126, the Competent Authority shall make the selection for reserved category candidates on the basis of their inter-se merit."

5. Five of the original 12 writ petitioners have filed this appeal by special leave. It is their case that pursuant to the order under challenge the State Government has issued an advertisement pertaining to the seats that were kept vacant and have invited claims from reserved class candidates with the result that these seats would not necessarily be available to all the original writ petitioners. The State Government has taken the stand that it has only followed the directions contained in the order under appeal.

6. On 27th May, 1997 the interim order that was passed on the appeal stated that in case the writ petitioners succeeded in their writ petition all the authorities concerned would be bound to admit them to the concerned courses, and it was therefore that 12 seats were kept vacant. Had the original writ petitioners not(sic) arrangements. The writ petitioners having succeeded in the appeal, they cannot be deprived of the benefit of the interim order.

7. It was not open to the Division Bench to deny to the writ petitioners the consequential benefit of their success in the writ petitions which had been mandated by the interim order dated 27th May, 1997.

8. Consequently, the appeals are allowed. The order under appeal is modified to this extent: that the 12 seats that were kept vacant shall be allotted by the respondents to the original writ petitioners. The State Government, which has issued an advertisement pursuant to the order under challenge, shall now issue a fresh advertisement which shall state that the previous advertisement is no longer effective.

9. No order as to costs.

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