Gauhati High Court
Page No.# 1/6 vs The State Of Assam And 2 Ors on 10 August, 2023
Page No.# 1/6
GAHC010165112023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4321/2023
ANGSHUMAN GOGOI AND 2 ORS
C/O- UMA GOGOI,
R/O- BANIPUR LANE 08,
DIBRUGARH, ASSAM- 786003.
2: AMAN KUMAR GUPTA
C/O PAWAN KUMAR GUPTA
R/O- KHALIAMARI
DALBIR SINGH PATH
DIBRUGARH
ASSAM- 786001.
3: SUSHANTA KARMAKAR
C/O S.C. KARMAKAR
H/NO.- 74
11 NO. BYE LANE
NAMGHAR PATH
MILAN TIRTHA
BEHIND BSNL TELEPHONE TOWER
P.O- RUPAI SIDING
P.S. DOOMDOOMA
DISTRICT- TINSUKIA
ASSAM- 786153
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM,
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HEALTH AND FAMILY WELFARE DEPARTMENT,
DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
THE DIRECTORATE OF MEDICAL EDUCATION
GUWAHATI- 781022
ASSAM.
3:THE UNION OF INDIA
DIRECTORATE GENERAL OF HEALTH SERVICES
MINISTRY OF HEALTH AND FAMILY WELFARE
NIRMAN BHAWAN
NEW DELHI- 110011
For the petitioners : Mr. B.D. Konwar, Senior Advocate
Assisted by Ms. S. Jain, Advocate
For respondents : Mr. D. Saikia, Advocate General, Assam
Assisted by Mr. B. Gogoi,
Standing Counsel, Health
Mr. K. Gogoi, C.G.C.
For respondent No.3
-BEFORE-
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
10-08-2023
S. Mehta, C.J.
Heard learned counsel representing the parties and perused the material
available on record.
2. The petitioners herein are aspiring candidates, who seek admission in the
Post Graduate courses and Diploma Courses in the Medical Colleges in the State
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of Assam. The petitioners claim to be OBC (Non Creamy Layer) candidates and
have approached this Court by way of this writ petition seeking to challenge the
validity of Rule 7(i)(d) of Medical Colleges of Assam (Regulation of Admission
into Post Graduate Degree and Diploma Courses) Rules, 2021, which provides
15% quota/reservation of seats to Other Backward Classes (OBC) and More
Other Backward Classes (MOBC) in respect of admission into Post Graduate
courses in the Medical Colleges under Health & Family Welfare Department,
Government of Assam. The petitioners seek a direction upon the respondents to
fix 27% quota/reservation to the OBC/MOBC (NCL) category candidates in
regard to admission to Post Graduate courses in the Medical Colleges of Assam
in terms of the Notification dated 29.07.2021 issued by the Central Government.
3. When the matter was taken up on 02.08.2023, this Court noted a serious
flaw in the Notification dated 06.12.2021 issued by the State Government
wherein the reservation/quota of 15% for admission in the Medical Colleges of
Assam has been provided to OBC/MOBC candidates, without there being any
sub-classification on the basis of economic status, i.e. Non Creamy Layer (NCL).
4. It may be stated here that the concept of economic status based
reservation was discussed by Hon'ble the Supreme Court in the case of Indra
Sawhney vs. Union of India, reported in (1992) Suppl. 3 SCC 210 wherein
it was observed as follows:-
"629. More backward and backward is an illusion. No constitutional
exercise is called for it. What is required is practical approach to the
problem. The collectivity or the group may be backward class but the
individuals from that class may have achieved the social status or
economic affluence. Disentitle them from claiming reservation. Therefore,
while reserving posts for backward classes, the departments should
make a condition precedent that every candidate must disclose the
annual income of the parents beyond which one could not be considered
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to be backward. What should be that limit can be determined by the
appropriate State. Income apart, provision should be made that wards of
those backward classes of persons who have achieved a particular status
in society either political or social or economic or if their parents are in
higher services then such individuals should be precluded to avoid
monopolisation of the services reserved for backward classes by a few.
Creamy layer, thus, shall stand eliminated. And once a group or
collectivity itself is found to have achieved the constitutional objective then
it should be excluded from the list of backward class. Therefore,
(1) No reservation can be made on economic criteria.
(2) It may be under Article 16(4) if such class satisfies the test of
inadequate representation.
(3) Exclusion of creamy layer is a social purpose. Any legislative or
executive action to remove such persons individually or collectively
cannot be constitutionally invalid."
"635. Both the impugned orders issued by the respective governments in
1990 and 1991 reserving appointments and posts for socially and
educationally backward classes of citizens, without discharging their
constitutional obligation of examining if the identification of backward
class by the Commission was in consonance with constitutional principle
and philosophy of the basic feature of the Constitution and if the group or
collectivity so identified was adequately represented or not which is the
sine qua non for the exercise of the power under Article 16(4), are
declared to be unenforceable.
(1) ....
*****
(8) Creamy layer amongst backward class of citizens must be
excluded by fixation of proper income, property or status criteria."
Thus, the ratio of the above judgment explicitly excludes the creamy layer
category candidates amongst the backward classes from getting the benefit of
reservation by fixation of proper income/property or status criteria.
5. By order dated 02.08.2023, we had put a pertinent query to the learned
Advocate General, Assam, Mr. Saikia to explain this anomaly in the Notification
dated 06.12.2021 issued by the State Government and the Rule 7(i)(d) of 2021
Rules, wherein no further classification has been made for providing reservation
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to OBC/MOBC candidates on the basis of economic status. On 07.08.2023,
learned Advocate General conceded that there was an error on the part of the
State Government in not specifying that reservation/quota to the OBC category
candidates in the subject admission process will be restricted to NCL candidates
only.
6. An affidavit dated 09.08.2023 sworn by Additional Director of Medical
Education has been filed on behalf of the State Government wherein it is
averred that the process of admission into 50% State Quota Seats of post
graduate courses in the Medical Colleges of Assam for the session 2023 has
already started. The Government of Assam has taken a decision in the Cabinet
to give reservation to the OBC/MOBC candidates in all Higher Educational
Institutes in the State in the order of 27% of the total seats in further
admissions. Such reservation has already been provided for admission into first
year MBBS/BDS Courses as per Medical Colleges and Dental Colleges of Assam
(Regulation of Admission into 1st year MBBS/BDS Courses) Rules, 2017.
However, it has been admitted that inadvertently and because of oversight, the
reservation to OBC/MOBC categories has not been restricted to NCL category
only as is mandated by law.
7. In view of the above position admitted in the affidavit and as stated by
learned Advocate General, we hereby direct the respondent authorities to rectify
and make necessary amendments in Rule 7(i)(d) of Medical Colleges of Assam
(Regulation of Admission into Post Graduate Degree and Diploma Courses)
Rules, 2021 so as to provide reservation to the OBC/MOBC candidates of NCL
category only. The above amendment shall also be applied to the counselling
process which has started on 27.07.2023. Candidates who do not satisfy the
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criterion of NCL, in terms of the prevailing regulations, shall not be admitted in
the 15% quota reserved for OBC/MOBC category.
This writ petition is disposed of in these terms.
JUDGE CHIEF JUSTICE
Comparing Assistant
