Allahabad High Court
Dr. Rashmi Kant Misra vs G.S.V.M. Medical College, Kanpur And ... on 16 September, 1988
Equivalent citations: AIR1989ALL55, AIR 1989 ALLAHABAD 55, (1988) UPLBEC 714
Author: V.N. Khare
Bench: V.N. Khare
JUDGMENT Ravi S. Dhavan, J.
1. The first impression which this Court get after concluding the hearing of this case, is that the issues raised in the two writ petitions could have been avoided if those responsible for granting admissions to courses known as super specialities at the medical colleges had not overlooked the decision of the Supreme Court in re Pradeep Jain v. Union of India, AIR 1984 SC 1420. Super Specialities is the course for which candidates must have a degree in M. D. or M. S., it is otherwise known as D.M. by the Medical Council of India.
2. The admission to these courses is by merit and no other criteria. The Supreme Court even went to the extent of observing that in courses like super specialities there would be no reservation whether institutional or other. The reason being, the Supreme Court laid down, that these Were disciplines where only the best and no other reservation could save a seat for a candidate. Thus, before this Court could examine any other matter, parties were made conscious of the constraints upon this Court, and permit the debate on issues on the admission which have been made in the super specialities Courses (Cardiology) at G. S. V. M. Medical College, Kanpur. To be within the confines of the decisions of the Supreme Court.
3. The contention of the petitioners in the two writ petitions before this Court is that the admissions made to the aforesaid courses are a total negation to the law as has been laid down by the Supreme Court. The petitioners contend that the Medical College has resorted to institutional reservations by selecting internal candidates first and thereafter considering a solitary external candidate. This, they contend, is illegal. Consequentially, they desire that the admissions as have been made be declared as illegal and, thereafter the Principal of the Medical College, aforesaid, be directed to process the admissions, afresh, but strictly in accordance with the criteria laid down by the Supreme Court so that it is in accord with Pradeep Jain's case (AIR 1984 SC 1420) (supra). The defence on behalf of the contesting respondents, that is, those candidates who have procured admissions, and the State respondents is faint.
4. The facts for consideration are that nineteen persons applied, in response to an advertisement given in the newspaper inviting applications from students of merit, in the D.M. Courses in Cardiology otherwise known as super speciality course in Cardiology. The advertisement referred to other courses also. The advertisement No. 68/4-4-/87 Stud. P.G. is dated October 21, 1987. The advertisement was sent for publication to the Hindustan Times, New Delhi, Northern India Patrika, Kanpur Edition otherwise published from Allahabad. It was endorsed to the Director, Medical Education and Training, Lucknow, all the Principals of Medical Colleges of the State Government in Uttar Pradesh, Maulana Az ad Medical College, New Delhi, J. K. Cancer Institute, Medical College, Kanpur, L.P.S. Institute of Cardiology, Medical College, Kanpur, Institute of Medical Sciences, Varanasi, Airforce Hospital, Kanpur and the Indian Institute of Technology, Kanpur.
5. The merit list tor admission to the D.M. Cardiology course was drawn up to consider the admission for four seats amongst 19 candidates. The merit list was split into two groups. The first group was of internal candidates. There were 12 in number and the next group was of external candidates containing 7 names. The first three amongst the internal candidates were given admission and the first name amongst the external candidates was also given admission. This implied that the four seats were bifurcated as 75% for internal candidates and 25% for external candidates. The merit list was produced before this Court in the counter-affidavit of the Principal of the G.S.V.M. Medical College, Kanpur, The list is being reproduced below :
MERIT LIST FOR THE ADMISSION TO THE D.M. (CARDIOLOGY) AT V.S.V.M. MEDICAL COLLEGE, KANPUR Internal Candidates
1.
Dr. S. K. Agarwal 64.5%
2. Dr. Vivek Tandon 64.35% Admitted 3, Dr. Sanjeev Mehrotra 63.60%
4. Dr. A. C. Gupta 63.46%
5. Dr. Satendra Tewari 63.35%
6. Dr. Raj Tilak 62.94% 7 Dr. Sunil Prakash 62.73% 8 Dr. V. K. Goel 62.07% 9 Dr. S. K. Agarwal 60.92% 10 Dr. Rajat Mohan
60. 17% 11 Dr. P. C. Tandon 60.00% 12 Dr. Anurag Misra 59.82% LIST OF MERIT OF EXTERNAL CANDIDATES FOR D.M. (CARDIOLOGY)
1. Dr. S. K. Sharma 72.35% Admitted
2. Dr. R. K. Misra 66.72%
3. Dr. V. P. Sinha 66.29%
4. Dr. R. C. Chauhan 66.06%
5. Dr. A. C. Agarwal 64.46%
6. Dr. R. K. Awasthy 61.44%
7. Dr. R. R. Singh 58.59% Sd. Principal GSVM Medical College Kanpur.
6. It was conceded by learned State counsel that in the face of the Supreme Court judgment in re. Pradeep Jain's case (AIR 1984 SC 1420) (supra) the very criteria adopted is against the grain of the judgment of the Supreme Court. Logically learned counsel for the State could not but help make this submission. This Court has no hesitation in placing on record that the manner and the modality of the selection of candidates is illegal after the Supreme Court had set the criteria. One aspect was clear, that there was to be no reservation. In the face of the Supreme Court judgment, aforesaid, the Principal G.S.V.M. Medical College, Kanpur. resorted to institutional reservations. The exercise was not only an irregularity but disrespectful by ignoring the directions of the Supreme Court. The lotality of the list had to be taken into account. This meant that the candidates who had been given admission had been virtually inducted into the Medical College irregularly and illegally. The candidate on the top of the merit list was Dr. S. K.Sharma with 72.55%. He has, in the face of his merit, made his position unassailable. The admission granted to the first three so-called internal candidates tumbles. The next in order of merit is Dr. R. K. Misra with 66.72%. Thereafter Dr. V. P. Sinha with 66.29% and lastly Dr. R. C. Chauhan with 66.06%. The merit list, thus, exhausts itself, if there are to be four seats only.
7. There was a faint suggestion to the Court on behalf of the candidates who ought not to have been admitted and whose admissions are liable to be in jeopardy that the Supreme Court judgment in Re. Pradeep Jain's case (AIR 1984 SC 1420) be ignored for the academic session 1987-88 and that this Court express its view for the next academic session. This is not possible. This implies that irregularity is accepted by all and is not in issue. There are candidates who are higher in merit who are waiting outside the gates of the Medical College with a judgment of the Supreme Court in their hands and demand an answer in the name of justice why they had been left out. The respondents have no answer to give them except that the admissions are over. This defence will not do here.
8. If the logic of the Supreme Court judgment is to be applied and inevitably this Court is obliged to do so, then the three candidates claiming themselves to be internal candidates have been granted admissions illegally. It is for this reason that the Court declined , to grant adjournments and conducted almost day to day hearing. There was a suggestion from those w ho had received illegal and irregular admissions when the Court insisted that the judgment of the Supreme Court in re : Pradeep Jain's case (AIR 1984 SC 1420) will be implemented, that a solution be found so that all may remain. Neither equity, merit nor law is with the respondents Nos. 4, 5 and 6, the so-called internal candidates who managed admissions irregularly. If there are only four seals then this Court is afraid their admissions must be annulled. When the writ petition of Dr. Reshmi Kant Misra was filed on 8 August, 1988, the eourse had gone on for about six weeks. 'When the writ petition of Akhlesh Chandra Agarwal had 5een filed before another Bench the course had gone on for about three weeks.
9. All the respondents desire that they ought not to bo dislodged. If the last of them is to remain, then on merits, he comes at serial No. 8, then the list would read as :
1. Dr. S. K.Sharma 72.55%
2. Dr. R. K. Misra 66.72%
3. Dr. VipinSinha 66.29%
4. Dr. R. C. Chauhan 66.06% 5. Dr. S. K. Agarwal 64.5%
6. Dr. A. C. Agarwal 64.46% (One of the petitioners)
7. Dr. Vivek Tandon 64.35% and S. Dr. Sanjiv Mehrotra 63.60% This implies that the seats must be doubled if the last of them is to be accommodated, at present continuing on an irregular admission, and is not to discontinue his course.
10. As the entire ease has been argued in reference to the decision of the Supreme Court that in Super Specialities there will be no reservations, it would be best to see the observation of the Supreme Court in Pradeep Jain's case (AIR 1984 SC 1420) (supra). The Supreme Court observed in Pradeep Jain's case in paragraph 22 as under :
"We are therefore of the view that so far as admissions to post-graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to postgraduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of instil utional preference and admissions should be granted purely on merit on all India basis."
11. The foundation of abdicating reservation and relating to merit in courses like super specialities in Cardiology and Neurosurgery had already been laid down by the Supreme Court in an earlier decision in re. Jagdish Saran v. Union of India, AIR 1980 SC 820. In this case, the Supreme Court had held that excellence could not be compromised at the cost of equalisation. In the matter of advance medicine the Supreme Court said :
"39. If equality of opportunity for every person in the country is the constitutional gurantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like postgraduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levefs of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical, departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficency may be good enough and what is needed is merely to weed out the worthless."
12. The writing was already on the wall since the last eight years when the Supreme Court gave the guidelines that in advanced courses and sophisticated disciplines in sciences and technology, reservation under the exception of equality must give way to excellence. In 1984 in the matter of Pradeep Jain's case (AIR 1984 SC 1420) (supra) the Supreme Court said so specifically in reference to advance courses like Cardiology and Neurosurgery that merit alone ought to be the basis for granting admissions in the medical colleges.
13. At least immediately after Pradeep Jain's case all the medical colleges of the "nation were obliged to set standards for admission for Super Specialities Courses and granted admissions on the basis of merit only. Institutional reservation in the aforesaid courses had already been declared as a bad exercise.
14. It is a sad aspect, that in this State a decision of the Supreme Court was put in the cupboard and no directives have been issued to the medical colleges in reference to super specialities courses guiding the Principals of the medical colleges to grant admission on merit alone and not on reservation. Simultaneously, the Principals of the State medical colleges were obliged, notwithstanding the absence of such state directions to have been conscious of the decision of the Supreme Court and accept candidates for admissions in super specialities courses not on the basis of institutionalised reservation but strictly on merit. There is a const itutional obligation on the State and all authorities whether civil or judicial, to fall in line with a decision of the Supreme Court. Neither the State of Uttar Pradesh nor the Principals of the State medical colleges are exceptions to such an obligation. The of forgotten mandate of the Constitution is Article 144. It reads :
"144. Civil and judicial authorities to act in aid of the Supreme Court-- All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court."
15. This is in addition to Article 141, which warns that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
16. The State and the State respondents chose to ignore the Supreme Court decision for more than four years. This Court cannot and does not propose to do so, as suggested on behalf of respondents Nos. 4, 5 and 6.
17. The defence on behalf of the respondents, the contesting doctors is feeble and in self-interest only. They received entry into the medical college but cannot withstand the test of merit. They contend that the super specialities course is also a post-graduate course and that unless the Medical Council of India sets down the norms of holding an all India examination, as mentioned in the decisions of Dinesh Kumar's case, AIR 1985 SC 1059, the admissions granted to them ought not to be disturbed. This is a misconstrued submission by tearing the context out (about) to save the worst of bad situation. To contend that super specialities course is also a postgraduate Course is like saying that a rose is alsoa flower. It is a superior breed. So are the disciplines of super specialities. The Supreme Court itself had put super specialities into a class apart and indicated that it is a course in advance medicine and standards of excellence in this higher discipline of science cannot he compromised and admissions were to he strictly on merit. The all India examination to which the contesting respondents are referring in reference to Dinesh Kumar's case is in the context of MBBS course and M.D./M.S. courses in reference to which the Supreme Court had indicated that either the Medical Council of India must conduct an all India entrance examination or it must be carried through by the Central Board of Secondary Education. In effect, pointedly the Supreme Court observed that institutional reservation in this course must come to an end. What remains is the merit.
18. If all the contesting respondents including those in the list, out of which they were extracted, were to be considered for admission on the criteria set by the Supreme Court then institutional preference as internal and external candidates will disappear. What will remain for consideration is the process of filtering the candidates on merits. The same criteria of merits which got admissions for respondents Nos. 4, 5 and 6, except that the list will be examined as a whole.
19. Now the matter of a solution. The result must depend largely upon the State respondent's.
20. Despite the matter having been adjourned to enable the learned Standing Counsel to seek instructions in the face of the situation that at every academic session since 1984 after the judgment of the Supreme Court in re. Pradeep Jains' case (AIR 1984 SC 1420) (supra), the principles were known and clear, no solution was forth-coming. The only statement which the learned Standing Counsel could make was that should the court give directions, then, the State would comply with them.
21. Simultaneously, learned Standing Counsel was submitting a legal proposition, that seats cannot be increased nor can the High Court compel an educational institution to increase the strength. This was on the basis of a decision reported in AIR 1985 All 1; Achchey Lal v. Vice-Chancellor, Gorakh-pur University. This decision, upon its own facts does not apply. It was a case where the. unfit having being irregularly admitted were putting the plea of estoppel against the University in cancelling their admission and in the alternative sought increase of seats so that their admissions were not set aside. The Bench -declined the second alternative suggested to perpetuate an irregularity. In the present case the fit and meritorious have been kept out. The context of the citation in Achchey Lal, aforesaid, was misplaced by the learned Standing Counsel. But the strategy of learned Standing Counsel in making the submission is relevant. It amounts to this : seats cannot be increased but should the court give a direction it will he done.
22. This is a deplorable state of affairs and it amounts to 'passing the buck' on to the Court. This ought not to have been so. A direction or principle settled by the Supreme Court hinds the civil and judicial authorities simultaneously. Such is the discipline of the Constitution, and it requires all authorities civil and judicial in the nation to act and follow and not to ignore the decision of the Supreme Court. This is Article 144 of the Constitution. Pronuncement of the Supreme Court is a discipline which is to be kept under Article 144 of the Constitution. The illegalities have been committed in granting admission to those who were below merit; that there were others higher in merit is now a matter of record.
23. Asking the Court to give a direction and giving it confidence that it will be followed is all very nice, but it shows a failing system. The question now arises who should find a solution, the State, the Principal or the High Court. The Court has no hesitation in finding a solution, hut its implementation must rest with the State respondents at their initiative. The principal job of this Court is to certify whether the action which has been impugned is correct or not. That the Court is prepared to guide the State respondents to a solution is different from giving a direction. The difference between the two are not to be forgotten.
24 The Medical Council of India for postgraduate courses has no doubt laid down that the student teacher ratio should be 1:1. But i t has also placed on record in its recommendation of Post-Graduate Education, otherwise approved as regulations under Section 33 of the Indian Medical Council Act 1956, that "in exceptional cases, in a unit with one Post-Graduate teacher and another teacher with Post-Graduate qualification a maximum of two students can be admitted per year."
25. In exceptional circumstances, the Medical Council of India permits a student unit ratio of 2:1. This is not student-teacher ratio, but equation between the unit where a speciality is taught. 'Unit' has been explained in the recommendations of the Medical Council of India. Each post graduate unit shall consist of Professor/Associate Professor and Assistant Professor or Reader or other post-graduate teacher. It is in reference to this that the Council has made an exception provided the unit has one post-graduate teacher and another teacher with postgraduate qualification, a maximum of two students can be admitted per year.
26. Before this Court no material has been placed to warrant a situation for increasing seats so that those who ought to have been admitted, in place of those already admitted, can all be accommodated. The solution lies clearly with the State respondents regard being had to the circumstances permitting. It would not be appropriate for this Court, to permit a let in the students of higher education by giving a direction to the State respondents without any material having been placed by them, that a direction be issued, so that it is compatable with the recommendations of the Medical Council of India. Thus, this court has shown the guidelines upon which the State respondents, if they desire, may act with speed and increase the seats, the numbers of which shall also be at their discretion.
27. This Court after having examined the facts and circumstances, comes to the conclusion that the admissions which have been made at the G.S.V.M. Medical College, Kanpur, in the D.M. Course (super speciality) in Cardiology is irregular, illegal and against the judgment of the Supreme Court in re : Pradeep Jain's case (AIR 1984 SC 1420) (supra). This court was fully conscious of the fact that the students higher in merit were left out; this was bad in itself. This Court was further conscious that those below in merit have procured admissions upon a criteria which cannot stand the test of reasonableness after the Supreme Court judgment, aforesaid. This Court is encouraged in finding a solution by a decision of the Supreme Court reported in re : State of Kerala v. Km. T. P. Roshana, AIR 1979 SC 765. Coincidentally this is also a matter relating to admissions in medical colleges. In this very case, the Supreme Court found from the record that the result of an examination could be writ with. "The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out." In reference to want of material on record in finding a solution to conclude issue the Supreme Court observed :
"The functional validation of the writ jurisdiction is an appropriate examination of sustainability of the alleged disparity. We do not, however, proceed finally to pronounce on this point with reference to the two universities. Since nothing is available before us, or, for that matter, was before the High Court to warrant a fair conclusion on the issue."
But, in order that a rigid attitude may not be adopted in a writ jurisdiction the Court ought not to show negativity on such matters after striking down the scheme of the government as ultra vires and leaving an archaic situation. The observation of the Supreme Court in reference to the context are reproduced below :
"34. Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The Court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make do as best as it may or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to the medical college. The need for controlling its repercussions calls for judicial response. After all, law is not a broodingomnipresence in the sky but an operational art in society."
28. The High Court in the present case has explored the possibility of finding a solution, as it is not forthcoming from the State respondents. The Supreme Court also cautioned that flagrant violation of admissions into engineering and medical colleges cannot continue and the State respondents may not rest in the hope that the Court will find a solution to a situation created between the educational institution and the State. The Supreme Court was also seized of a case where it considered the complication of issues before a Court when the academic session was mid-way and the decision of the court beyond that, when it would create anomalous situations to declare wrong admissions as ultra vires implying thereby that the students who have done more than half their courses had to leave the institution. It is for this reason that this Court thought it fit not to grant any unreasonable adjournments. But, the Supreme Court also gave a hint that if admissions are granted contrary to the principles, then there is no occasion for the court to leave admissions intact. The following passages from the judgment of the Supreme Court in re : Punjab Engineering College, Chandigarh v. Sanjay Gulati, AIR 1983 SC 580 : are relevant :
"4. Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulatioas, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. Indiscipline in educational institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike. But, the problem which the courts are faced with in these cases is, that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the court comes into play. Writ Petitioners involving a challenge to such admissions are generally taken up by the High Courts as promptly as possible but even then, students who are wrongly admitted finish one or two semesters of the course by the time the decision of the High Court is pronounced. A further appeal to this Court consumes still more time which creates further difficulties in adjusting equities between students who are wrongly admitted and those who are unjustly excluded. Inevitably, the Court has to rest content with and academic pronouncement of the true legal position, Students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interested persons. This has virtually come to mean that one must get into an educational institution by means, fair or foul; Once you are in, no one will put you out. Law's delays work their wonders in such diverse fashions."
"5. We find that this situation has emboldened the erring authorities of educational institutions of various States to indulge in violating the norms of admission with impunity. They seem to feel that the courts will leave the admissions intact, even if the admissions are granted contrary to the rules and regulations. This is a most unsatisfactory state of affairs. Laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed, for the reasons that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution. We might have been justified in adopting this course in this case itself, but we thought that we may utter a clear warning before taking that precipitate step. We have decided, regretfully, to allow the aforesaid sixteen students to continue their studies, despite the careful and weightly finding of the High Court that at least eight of them, namely, the seven wards of employees and Ashok Kumar Kaushik, were admitted to the Engineering Course in violation of the relevant rules and regulations."
For four years the decision of the Supreme Court in re : Pradeep Jain's case (AIR 1984 SC 1420) (supra) has been ignored by the State respondents. The 'some day, not distant' has arrived. This decision in re : Punjab Engineering College (AIR 1983 SC 580) was a caution to the High Court, not to condone illegalities.
29. In this very case the Supreme Court also repelled the contention of the State Government before it that it cannot increase the seats though it had not kept the criteria in making admissions. In this regard the Supreme Court observed :
"6. It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admissions contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope with the additional influx of students. An additional plea available in regard to Medical College is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circum-stances is to ensure that the strength of seats is increased in proportion to the wrong admissions made."
Thus the solution is in the hands of the State respondents. The responsibility to let the students who have already been admited, to continue, will now rest on the State respondent notwithstanding that the first four in order of merit shall be admitted by a direction of this Court.
30. In 1985 in one of its decisions the Supreme Court was clarifying an aspect and was noticing the difficulties and the hazards faced by those students who have been wrongly denied admission and the difficulties of accommodating those whose admissions are likely to be annulled. The Supreme Court as conscious of the fact that standards of education as far as possible must not be compromised in disciplines of higer education. Regard being had to the circumstances before it the State of U.P. was directed to accommodate the post-graduate students who were to be admitted in pursuance of the decision, either at the Motilal Nehru Medical College or any other five medical colleges in the State of Uttar Pradesh at the option of the State Government Thus, in so far as the present case is concerned, the four students in orders of merit shall receive admissions at the G.S.V.M. Medical College, Kanpur, others, whose admissions will be affected may either be accommodated at the medical college, aforesaid, or any other medical college (or even the said medical college, circumstances permitting) of the State Government where the super speciality course in Cardiology is available. The option is with the State respondents. This will be in keeping with the pattern suggested by the Supreme Court in re : Dinesh Kumar v. M.L.N. MedicaJ College, Allahabad (AIR 1985 SC 1059) (supra).
31. The Supreme Court in another case reported in AIR 1988 SC 1445, Mridula Awasthiv. Delhi University in paragraphs of the judgment reiterates and reminds the authorities monitering and implementing education "we reiterate the view expressed by this court on more than one occasion that selection in the higher courses should be on the basis of merit". In the circumstances of that case, and no other, the Supreme Court issued directions to the Government of India, though not party, as the University of Delhi is a centrally aided institution, to make provision for more seats which inevitably required the Union of India to provide funds. An understanding was given at the Bar of the Court that the Medical Council would agree provided the Union of India came forward with finances. Simultaneously, the Supreme Court also suggested to the Medical Council of India to provide the necessary accommodation by relaxing requirements for the variation of the quota of student teacher ratio. The suggestion by the Supreme Court was made in the peculiar facts and circumstances of that case.
32. We are not inclined to issue any direction to the State of Uttar Pradesh on the repercussion which might further follow in the face of wrong admission, which have been made. This court has guided the State respondents to a solution. The intention of the court was not to harm any student, but if the criteria of admission was merit and no other, then those who have merit and have not been admitted cannot be left out and will be admitted by a direction of this court and will receive admission. If the State respondents desire to continue the admission, they have already granted, they have the permission of this court to do so, but not at the expense of the four persons who ought to and have to be admitted on merit.
33. To sum up, in the face of circumstances considered by this court, both, the facts as placed and the legal submissions this court directs that :
(a) admissions in D. M. Cardiology course, for the session under consideration, will be strictly upon merits and without any reservation;
(b) the admissions granted to the respondents Messrs Agarwal, Tandon and Mehrotra are irregular and illegal, and are annulled;
(c) admit three scholars to the D. M. Cardiology course in order of merit only;
(d) Dr. S. K. Sharma, with 72.35% respondent No. 7, in writ petition No. 15005 of 1988, is unaffected by these directions;
(e) the State respondents are at liberty to consider further admissions in the D. M. Cardiology course, but it is to be in accord with the recommendations of Medical Council of India, circumstances permitting;
(f) the liberty or permission granted under (e) is subject and after grant of admissions to three further candidates in order of merit, which is to be carried out forthwith :
(g) should any candidate, after Dr. S. K. Sharma declines admission, the next in order of merit in the list of nineteen candidates, aforesaid, shall be granted admission.
34. The writ petition filed by Dr. Rashmi Kant Misra, is allowed with costs as his submissions have been accepted in totality. The writ petition filed by Dr. Akhilesh Chandra Agarwal is allowed, with costs on parties as his merit is beyond the prescribed seats at present; legal submission having been accepted by the court.