Delhi High Court
Dr. Saurabh Gaur & Anr. vs Vice Chancellor, Guru Gobind Singh ... on 6 September, 2010
Author: Dipak Misra
Bench: Chief Justice, Manmohan
* HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : 28th July, 2010
% Judgment Pronounced on: 6th September, 2010
+ LPA No. 379/2010
Dr. Saurabh Gaur & Anr. ..... Appellants
Through: Mr. Sunil Kumar, Sr. Adv. with
Mr. Awanish Sinha,
Mr. Chandrashekhar Yadav, Advs.
Versus
Vice Chancellor, Guru Gobind Singh
Indraprastha University & Ors. ..... Respondents
Through: Mr. Mukul Talwar, Adv. for R1
Mr. A.S. Chandhiok, ASG with
Mr.Lalit Kumar, Mr. Jayender,
Mr.Pratap Singh Parmar, Advs. for
Union of India
Mr. Amarendra Saran, Sr. Adv. with
Mr.Amit Kumar, Mr. Sanchit Kumar,
Advs. for MCI
Mr. G.D. Gupta, Sr. Adv. with
Mr.S.K. Sinha, Adv. for R-4 to 59
Mr. Rajat Katyal, Adv. for AIIMS
Mr. Sushil Dutt Salwan, Mr.Aditya
Garg, Advs. for R-62 to 68
+ LPA No. 380/2010
Dr. Saurabh Mittal & Anr. ..... Appellants
Through: Mr. Sunil Kumar, Sr. Adv. with
Mr. Awanish Sinha,
Mr. Chandrashekhar Yadav, Advs.
Versus
Vice Chancellor, Guru Gobind Singh
Indraprastha University & Ors. ..... Respondents
LPA No.379/2010 & connected matters Page 1 of 39
Through: Mr. Mukul Talwar, Adv. for R1
Mr. A.S. Chandhiok, ASG with
Mr.Lalit Kumar, Mr. Jayender,
Mr.Pratap Singh Parmar, Advs. for
Union of India
Mr. Amarendra Saran, Sr. Adv. with
Mr.Amit Kumar, Mr. Sanchit Kumar,
Advs. for MCI
Mr. G.D. Gupta, Sr. Adv. with
Mr.S.K. Sinha, Adv. for R-4 to 59
+ WP(C) No. 3703/2010
Dr. Saurabh Mittal & Anr. ..... Petitioners
Through: Mr. Sunil Kumar, Sr. Adv. with
Mr. Awanish Sinha,
Mr. Chandrashekhar Yadav, Advs.
Versus
Union of India & Others ..... Respondents
Through: Mr. A.S. Chandhiok, ASG with
Mr.Lalit Kumar, Mr. Jayender,
Mr.Pratap Singh Parmar, Advs. for
Union of India
Mr. Rajat Katyal, Adv. for AIIMS
Mr. Mukul Talwar, Adv. for R3
Mr. Amarendra Saran, Sr. Adv. with
Mr.Amit Kumar, Mr. Sanchit Kumar,
Advs. for MCI
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
LPA No.379/2010 & connected matters Page 2 of 39
DIPAK MISRA, CJ
Regard being had to the identic of controversy raised in this
batch of matters, it was heard analogously and is disposed of by a
singular order. For the sake of convenience and clarity, we shall first
refer to the facts in LPA No. 379/2010 and thereafter, wherever
necessitous, we shall advert to the factual matrix in the other appeal
and the writ petition.
2. Questioning the legal substantiality and the sustainability of the
order dated 28th April, 2010 passed by the learned Single Judge in
CWP No. 2517/2010, the present intra-Court appeal has been
preferred under Clause 10 of the Letters Patent.
3. The facts which are imperative to be exposited for adjudication
of the controversy at hand are that the Guru Gobind Singh
Indraprastha University (for short „the University‟), the first
respondent herein, held a Common Entrance Test (for short „CET‟) on
2nd April, 2010 for admission to 120 seats of the Post Graduate
Medical Course for Delhi State quota in which 130 candidates
appeared for its two affiliated institutions, namely, Vardhman
Mahavir College, Safdarjung Hospital, New Delhi and Post Graduate
Institute of Medical Education and Research, Dr. Ram Manohar
LPA No.379/2010 & connected matters Page 3 of 39
Lohia Hospital, New Delhi, the respondent Nos.2 and 3 respectively.
The said respondents were allotted 51 and 72 seats respectively. The
result of the CET was declared on 2nd April, 2010 itself in which 24
candidates were declared successful to take admission in respect of
the allotted seats. After the declaration of the result, some of the
candidates made a representation to the Vice Chancellor of the
respondent No.1 for cancellation of the said test and for holding a
fresh CET. That apart, many other grievances were raised before the
said respondent. When their grievances were not paid heed to, they
preferred CWP No. 2517/2010 seeking a direction to cancel the result
of CET on account of many a lapse and to conduct a fresh
examination. Be it noted, in the first examination, 24 candidates had
qualified.
4. In the writ petition, the learned Single Judge, by order dated
23.4.2010, had issued certain directions. In pursuance of the aforesaid
order, the Vice Chancellor of the University had convened a meeting
with certain experts and the said Committee had taken a decision
which reads as follows:
"(i) Since no clarification has been received from the Medical
Council of India till date, the decision has been taken to
fill up all the remaining seats in the larger interest of the
students in the light of the Hon'ble Court direction dt. 23
April 2010.
LPA No.379/2010 & connected matters Page 4 of 39
(ii) Considering the matter, the Committee decided that the
University should propose to carry out a second test for
filling the remaining vacant seats by providing sufficient
preparation time for the students.
(iii) The University while carrying out this second tests
should adhere to all the standards of the examination and
should not allow any dilution in the standards and
quality of questions.
(iv) In the event of any vacant seats remaining after the
second test and counseling, the University would
surrender the State Quota Seats to the Central
Government for further necessary action so that the same
are filled up.
(v) The committee felt that this decision being taken as a one
time measure under special circumstances and would not
be treated as a precedence."
5. When the matter was listed before the learned Single Judge on
28.4.2010, the learned Single Judge referred to the said decision and
came to hold as follows:
"During the course of the arguments the petitioners did
not press prayer (a) and insisted for prayer (b) to direct
the respondents to conduct a fresh entrance test to fill the
remaining 96 seats. Contention of counsel for the
petitioners is that in all there were 120 seats meant for
the State quota under clause 7.2 of the admission
brochure and out of that test conducted on 2nd April,
2010 only 24 candidates qualified. Out of these 24, 19
are from the general category and 5 are from the reserved
category. Contention of the counsel for the petitioners is
that still 96 seats remain to be filled up by the
University. The University had earlier taken up the
matter with the MCI so as to allow them to adopt
percentile system but no response was received by the
respondent from the MCI. In the meanwhile, the
LPA No.379/2010 & connected matters Page 5 of 39
petitioners had approached this Court by way of the
present writ petition and pursuant to the directions
given by this Court the respondent convened a meeting
and has taken the decisions as reproduced above.
Taking into consideration the said decision taken by the
University, let the University hold a re-test for filling the
remaining 96 vacant seats and allow all the candidates
who are eligible to appear in the said retest under the
State quota. The University shall adhere to the said
decision taken by the experts in the meeting held on
26.4.2010 and the other standards of examination as
prescribed in the bulletin.
Before fixing the schedule for the re-test of the said
examination, the respondent will keep in mind that on 9th
and 23rd May, 2010 entrance exam for post graduate
medical course of All India Institute of Medical Sciences
and PGI Chandigarh respectively are fixed."
6. Being dissatisfied with the aforesaid order, the present
appellants have preferred this appeal with a prayer for grant of leave
as they were not parties to the writ petition and their rights have
been affected. The prayer for leave was granted and the Letters
Patent Appeal was entertained.
7. Initially, when the LPA was taken up, this Court had issued
notices and directed that counseling shall be conducted but the same
shall not be given effect to till 28th May, 2010. On 28th May, 2010, this
Court passed the following order:
"We have heard learned counsel for the parties at length.
This Court on 26th May, 2010 while dealing with
interlocutory application had directed that the
LPA No.379/2010 & connected matters Page 6 of 39
counseling shall be conducted but the same shall not be
given effect to till today.
We have been apprised that the counseling has been
deferred till 30th May, 2010.
In course of hearing, two aspects emerged for
consideration, namely, whether the State quota has been
properly determined or the State had acted solely on the
basis of communication made by the Union of India
fixing the number of seats as well as the percentage; and
secondly, whether the University concerned could have
held a second entrance examination. We have been
apprised by Mr. Talwar, learned counsel for Guru
Gobind Singh Indraprastha University that the number
of seats were increased after due correspondence and
consultation with the Central Government. The second
entrance test, learned counsel for the University would
submit, was conducted keeping in view the leave granted
by this Court to the Vice-Chancellor to consider the
matter and thereafter a test was conducted in respect of
96 seats. We have been further apprised that 105
students have undertaken the second entrance test.
In view of the aforesaid, keeping the issue open, we
modify the interim order that was passed on earlier
occasion to the extent that the counseling shall be held, as
re-scheduled, on 30th May, 2010 and be given effect to,
subject to final result of this writ petition.
The matter be listed on 31st May, 2010."
8. The aforesaid order was assailed before the Apex Court in
SLP(C) No. 16634/2010 and their Lordships, vide order dated
02.06.2010, passed the following order:
"Heard learned counsel for the parties and
perused the record.
LPA No.379/2010 & connected matters Page 7 of 39
In the facts and circumstances of the case, we do not find
any valid ground or justification to entertain the
petitioners' prayer for stalling the admission to
the post-graduate courses on the basis of retest
conducted by the University pursuant to the
order passed by the learned Single Judge of the High
Court.
With the above observation, the special leave petition is
dismissed.
While dismissing the special leave petition, we make it
clear that the admissions made hereinafter shall remain
subject to final adjudication of the matters pending before
the High Court."
9. When the matter was taken up on 4th June, 2010, this Court
passed the following order:
"Learned counsel for the parties fairly stated that though
the application for review has been filed in this case, the
main order was passed in LPA No. 380/2010. It is
conceded to that in the second line of paragraph 3 at page
3 it has been mentioned that 17 seats are lying vacant,
though, thereafter, as communicated by the university,
27 seats are lying vacant. Thus, instead of 17 it should
be read as 27.
Needless to emphasize, that the seats are available,
subject to the directions in our earlier order, shall be kept
for the All India quota in ongoing counseling."
Thereafter, the matter was finally heard.
LPA No.379/2010 & connected matters Page 8 of 39
10. As the present appeal has been preferred after obtaining leave
from this Court, it is necessary to refer to certain facts and the attack
to the grounds of assail.
11. The appellants had appeared in the examination conducted by
the All India Institute of Medical Sciences (for short „AIIMS‟) for Post
Graduate Medical Courses of MD/MS/PG Diploma/MDS for the
50% seats for all Government /Municipal Colleges in India except for
the Government Medical Colleges in the States of Andhra Pradesh
and Jammu & Kashmir and had become successful in the said
entrance examination. The seats in the Post Graduate Medical
Courses in all the Government and Municipal Medical Colleges of all
States are divided into two categories, one, the All India Quota seats
and the second, the State Quota seats in equal proportion. The All
India quota seats are unreserved seats which are allotted only on the
basis of merit in the All India Entrance Examination conducted by the
respondent No.3, the Principal, Post Graduate Institute of Medical
Education and Research at Dr. Ram Manohar Lohia Hospital and the
State quota seats are allotted on the basis of the CET conducted by
the individual States in which only those students who are domicile
in that State can appear. The All India quota seats are filled up by
way of two rounds of counseling which are conducted by the Guru
LPA No.379/2010 & connected matters Page 9 of 39
Gobind Singh Indraprastha University and Vardhman Mahavir
College. The second round of All India counseling is conducted only
after the first round of counseling for all the States is over and this is
done to ensure that full effect is given to the All India quota
inasmuch as all the students appearing in the All India quota
examination also appear in the CET of the States of which they have a
domicile and vacate their All India seats if they get a better institution
or course in their State quota. After the first round of counseling by
the States, several seats fall vacant and are reverted to the All India
quota and accordingly, several students are benefited. It is urged
that in no event, reservation based on residence/institutional
preference should exceed 50% of the total number of seats in such
courses and to ensure that 50% of the All India quota is given full
effect to and is not diluted by reason of any malpractice followed by
any State, directions have been issued by the Apex Court for holding
an extended second round of counseling after all the States have
completed their first round of counseling. It is contended that the
order passed by the learned Single Judge which is a consent order is
in total disregard of the principle laid down by the Apex Court as a
result of which the students who had failed in the first CET have
been allowed to undertake the examination under the Delhi State
quota. It is put forth that some students who had appeared in the All
LPA No.379/2010 & connected matters Page 10 of 39
India examination conducted by the AIIMS in January, 2010 filed a
writ appeal before this Court against non completion of the first
round of counseling by the different States and for not reporting in
time the correct number of seats for the All India quota to be added
in the second round of All India counseling. The said writ appeal
was withdrawn as number of seats were involved and the appellants
therein could approach the Apex Court. The Writ Petition (Civil) No.
189/2010 was preferred before the Apex Court and the Apex Court
by order dated 13th May, 2010 had passed an interim direction in
regard to the schedule for the extended second round of the Post
Graduate counseling for the All India quota. As per the said
direction, the second round of counseling is to be conducted between
2nd June, 2010 to 12th June, 2010 and all the States were directed to
report the number of vacancies resulting from non joining, resigning
and surrendering of seats from the All India quota to the Director
General of Health Services on 27th May, 2010. The Apex Court
further directed that not more than 50% institutional quota be
permitted and the need was to consider the merit on All India basis.
12. It is set forth in the Memorandum of Appeal that the
respondent University has extended 100% seats under the State quota
and left no seats for the All India quota which is in direct conflict
LPA No.379/2010 & connected matters Page 11 of 39
with the decisions of the Apex Court. It is also urged that in the
action taken by the respondent No.1, not only illegality has crept in
but merit has also been compromised. It is contended that had such
a step not been taken by the respondent No.1, number of seats would
have been available in the All India quota to benefit a number of
doctors coming from all over the country and the meritorious doctors
would have got admission in the Post Graduate course. It is averred
that the learned Single Judge had fallen into grave error by issuing a
writ of mandamus commanding the respondent No.1 to do such a
thing which in law is impermissible. It is set forth that by virtue of
the order of the learned Single Judge, PG seats in the institutes
located in Delhi earmarked for institutional preference which
remained vacant could not have been brought under the All India
quota as a consequence of which the eligible candidates of the All
India quota have lost the opportunity. It is the case of the appellants
that by virtue of the direction to hold a second examination, the
concept of institutional preference has been given an indecent burial
and there has been 100% reservation for the students of Guru Gobind
Singh Indraprastha University. Various averments have been made
that the direction of the learned Single Judge is absolutely fallacious.
It is highlighted that the learned Single Judge has completely erred in
holding that there are no undergraduate seats in Ram Manohar Lohia
LPA No.379/2010 & connected matters Page 12 of 39
Hospital and, hence, 57 seats allotted in the State quota should go to
the All India quota as there is no question of institutional preference
in the case of Ram Manohar Lohia Hospital.
13. At this juncture, we think it appropriate to refer to the counter
affidavits filed in this appeal as the learned counsel for the
respondents thought it appropriate to bring certain facts on record
which were not brought on record before the learned Single Judge
and further there were certain subsequent events which are required
to be taken note of.
14. In the counter affidavit filed by the respondent No.1, it has
been stated that the University had published the admission
brochure with respect to the PG Medical Degree/Diploma Course of
the University on 15.2.2010 in which 60 seats were shown to be
reserved for the State quota out of the total number of 118 seats.
Thereafter, the total number of seats was increased to 245 out of
which 123 Degree/Diploma seats were allocated to the State quota.
The said decision was uploaded on the website of the University on
19.4.2010. Despite the same, the appellants came to assail the same
before this Court on 25.5.2010 and, hence, the doctrine of delay and
laches comes into play. It is contended that the University functions
LPA No.379/2010 & connected matters Page 13 of 39
within the framework of the Guru Gobind Singh Indraprastha
University Act, 1998 and the Statutes, Rules & Regulations,
Ordinances made thereunder and two medical colleges are affiliated
to the said University. The Common Entrance Test which was to be
conducted by the University on 2.4.2010 was only in respect of 60
seats to be filled up under the State quota. The term „State quota‟
actually refers to the quota of seats that are to be filled up from the
graduates of the university concerned. This quota is determined at
the level of the University and all MBBS graduates of the University
are eligible to apply irrespective of the college in which they may
have pursued their MBBS course. In total, 130 candidates applied for
the said test but only 24 obtained the qualifying marks out of which
19 belonged to the General Category and 5 to the Scheduled Castes
and Scheduled Tribes category. Under these circumstances, the
respondent-University entered into correspondence with the Medical
Council of India on 6.4.2010 requesting the MCI to relax the
qualifying percentage. While the request of the University was
pending with the MCI, WP(C) No. 2517/2010 was filed by the
students. During the pendency of the writ petition, the Post
Graduate Medical Degree/Diploma seats in the University were
increased from 118 to 245 seats out of which the State quota consisted
of 123 seats (120 degree seats and 3 diploma seats). The learned
LPA No.379/2010 & connected matters Page 14 of 39
Single Judge on 23.4.2010 recorded the submission of the learned
counsel for the parties and noted that 96 seats were likely to go waste
and, accordingly, directed the University to take measures for filling
up the remaining vacancies in the current academic session itself.
Pursuant to the aforesaid direction, the University took a decision to
hold a second CET which was approved by the learned Single Judge.
It is urged that the two reasons which weighed with the Committee
of the University while recommending a re-test to be held for the
remaining vacancies are that the percentage of candidates who had
passed the test was abnormally low as compared to the past years
and secondly, the University was of the bona fide opinion that if the
second test was not held, the 96 degree seats and 3 diploma seats
would go waste. It is also put forth that in the year 2009-2010, 19
seats could not be filled up out of the State quota and remained
vacant. After referring to the process of examination, it is set forth
that 105 candidates appeared in the re-test held on 26.5.2010 and 79
candidates obtained qualifying marks. The counseling was
conducted on 29.5.2010 and admissions were given on 31.5.2010. It is
put forth that 71 candidates took admission and the said position was
communicated to the Director General of Health Services (DGHS) by
communication dated 1.6.2010.
LPA No.379/2010 & connected matters Page 15 of 39
15. It is urged by the University that it is the stand of the appellants
that the State quota should be limited to 50% of the MBBS seats in the
University but when there are only 100 MBBS seats in the University,
the limitation of the State quota to 50% is not correct inasmuch as the
University has three medical colleges attached to it and the total
number of MBBS seats offered by the University at present is 240
seats. It is also the stand of the University that the matter relating to
affiliation of other medical colleges (including the medical college
attached to the ESI Hospital, Delhi) is also under consideration and
the number of seats were likely to increase for the academic year
2011-2012. It is further put forth that the seats were allocated in the
State quota by the Union of India after the increase of seats and the
same is evident from the correspondences made between the Union
of India and the University.
16. Be it noted, a counter affidavit has been filed by the Union of
India in the writ petition contending, inter alia, that the respondent
No.1, vide letter dated 26.11.2007, had requested the University of
Delhi for not including the seats of Ram Manohar Lohia Hospital and
Safdarjung Hospital while finalizing the prospectus for the Post
Graduate Entrance Examination as it has become necessary to change
the affiliation of the existing MD/MS seats in the said two
LPA No.379/2010 & connected matters Page 16 of 39
institutions from the University of Delhi to the Indraprastha
University. The third respondent, vide letter dated 7.1.2008, had
granted professional affiliation for the Post Graduate course in
Safdarjung hospital for the academic year 2008-09 subject to certain
conditions.
17. It is urged that pursuant to the direction issued by the Apex
Court, the AIIMS has conducted the CET for Post Graduate Degree
and Diploma Course on All India basis for the All India quota. For
the academic year 2010-2011, total 56,826 candidates had appeared in
the test conducted by the AIIMS and 11,942 students have qualified
the CET as per the norms fixed by the Medical Council of India. Out
of the said students, the result of 4974 students was not declared
despite being qualified and the remaining students were put in the
first wait list, second wait list and the third wait list. A chart has
been brought in that regard as per Annexure-R1/4. It is the stand of
the respondent that only 21% students had qualified in the test
conducted by AIIMS for the All India quota and the remaining
students had failed to qualify in the test. It is urged that it is nothing
unusual that only 24 students out of 130 qualified in the test
conducted by the respondent No.3 for the Post Graduate seats as the
same is within the national average for passing in the post graduate
LPA No.379/2010 & connected matters Page 17 of 39
seats. The respondent No.3 could not have conducted the second test
on the ground of alleged high failure rate of the students in the
entrance test as there are more meritorious students available in the
All India quota who had qualified the admission test and have not
failed as is the case with respect to the students of the respondent
No.3 University. It is the stand of the respondent No.1 that since 96
seats remained vacant in the Central Government Institution after the
test of 2.4.2010, the said vacant seats should have been filled up from
the All India quota. It is also urged that the candidates who had
qualified and are from Delhi should have been given preference in
place of the failed candidates by accommodating them to the second
test. The respondent No.3 should have asked for permission before
proceeding for conducting the test of failed candidates and should
not have done so without approval. It is set forth that there were
only 100 MBBS seats in the academic year 2004. In the first
counseling of the All India quota, 118 seats were included. In terms
of the norms of the MCI, the seats in the Government Educational
Institution including Ram Manohar Lohia Hospital, etc. were
enhanced pursuant to the inspection carried out by the respondent
and thereafter, the notification for increase in the seats was issued by
the respondent No.1 only on 29.3.2010. The test for the Post
Graduate seats of the respondent No.3 University was carried out
LPA No.379/2010 & connected matters Page 18 of 39
based on the information bulletin published in February, 2010 and
the test was held on 2.4.2010 and, therefore, the claim of the students
for the enhanced seats pursuant to the notification dated 29.3.2010
could not be sustained as they had not appeared in the test on the
strength of the said seats and besides that, the MBBS seats in the
academic year 2004 were only 100 and as per the norms, only 50 seats
could be allocated to the students of the Post Graduate programme.
It is the stand of the respondent No.1 that there is no MBBS college
attached with Ram Manohar Lohia Hospital and, therefore, no
reservation could be made for the Post Graduate seats for Ram
Manohar Lohia Hospital under the State quota. It is contended that
the students who had appeared in the second test could not have
appeared and the same has resulted in not giving admission to
meritorious students who are available in the All India quota and the
students in Delhi would be deprived of admission in the Post
Graduate programmes.
18. It is worth noting that the respondent No.3, the Guru Gobind
Singh Indraprastha University, has also filed a counter affidavit in
the writ petition reiterating the stand in the return which has been
filed in the LPA. Apart from highlighting that 123 seats are to be
filled up from amongst the MBBS graduates who have passed out
LPA No.379/2010 & connected matters Page 19 of 39
from the University, it is further stated that the Union of India has
always accepted that the State quota/institutional quota of the PG
degree/diploma seats of the University comprised of 50% of the total
number of seats. Reference has been made to various
correspondences between the Union of India and the University with
regard to the increase in seats and collectively brought on record as
Annexure R1/5 series. Relying on the said correspondence, it is
highlighted that the seats have been increased in respect of the
affiliated colleges of the University and, therefore, the Union of India
cannot take a somersault by projecting a different picture.
19. In LPA No. 379/2010, a counter affidavit has been filed by the
respondent Nos. 4 to 59 justifying the holding of the second entrance
test on many a ground. It is also their stand that the appellants are
not aggrieved persons because they cannot claim to enter into the
State quota as they had qualified in the All India quota inasmuch as
there is no such policy decision in existence or any judicial precedent.
In fact, the practice has been that the seats belong to the States out of
which 50% is given to the All India quota under the present scheme
and in case the seats are not consumed in the All India quota, the
same fall back to the State quota. There is no direction at any point of
time that if the State quota remains unfilled, the same shall go to the
LPA No.379/2010 & connected matters Page 20 of 39
All India quota. It is urged that the decision rendered in Saurabh
Chaudri v. Union of India, (2003) 11 SCC 146 makes it quite clear that
the reservation for institutional preference is not ultra vires Article 14
of the Constitution of India and further in the Saurabh Chaudhri-II
case, the Apex Court was pleased to dismiss the application moved
by the candidates of the All India quota for increase in their quota. A
reference has been made to the letter dated 26.11.2007 issued by the
Union of India to highlight that when the hospitals have been
affiliated with the Indraprastha University, the said University is
competent to hold examination for MBBS/MS admission for
Vardhman Mahavir College, Safdarjung Hospital as well as Ram
Manohar Lohia Hospital against the 50% State quota and, hence,
there is no illegality in the action of the University. It is urged that
the Central Government has always taken a policy decision on the
basis of affiliation but, for the first time, is taking a contrary stand
which has no base in law. The stance of the Union of India that
unfilled seats in the State quota would go to the All India quota is
unacceptable inasmuch as the All India quota has to be restricted to
50% and, accordingly, the same had been restricted. Commenting on
the enhanced quota, it is put forth that the said enhancement is
totally flawless and the respondent University was justified in
holding the examination in respect of the enhanced quota and the
LPA No.379/2010 & connected matters Page 21 of 39
Vice Chancellor was justified in holding a second entrance test so that
the seats of the State quota would not lapse.
20. A reply has been filed by the respondent Nos. 62 to 68
justifying the second examination; allocation of seats; surrender of
seats of the All India quota, if unfilled, to the State quota; justifiability
of the enhancement of seats; the conducting of the second entrance
examination and the factum that the petitioners have no locus standi
to prefer the appeals as they cannot get admission in respect of the
seats which belong to the State quota. Reference has been made to
the decisions rendered in Pradeep Jain (Dr.) & Ors. v. Union of India
& Ors., (1984) 3 SCC 654, Dinesh Kumar (Dr.) v. Motilal Nehru
Medical College, Allahabad & Ors., (1986) 3 SCC 727, Magan
Mehrotra & Ors. v. Union of India & Ors., (2003) 3 Scale 101 and
Saurabh Chaudri case (supra) to justify the institutional preference in
allocation. It is also the stand of the respondent Nos. 62 to 68 that
after the second round of counseling of the All India quota is
completed, the institute had to inform regarding the number of seats
that remained vacant in the All India quota and surrender the same
back to the State quota. The same can be filled in the second round of
counseling of the State quota. It is set forth that no third counseling
is permitted at the All India level and the seats come to the State
LPA No.379/2010 & connected matters Page 22 of 39
quota. Be it noted, in LPA No. 380/2010, the same order passed by
the learned Single Judge is under assail and the pleadings from all
aspects are same.
21. We have heard Mr. Sunil Kumar, learned senior counsel with
Mr.Awanish Sinha, Mr. Chandrashekhar Yadav for the appellants
and the writ petitioners, Mr. A.S. Chandhiok, learned Additional
Solicitor General with Mr.Lalit Kumar, Mr. Jayender, Mr.Pratap
Singh Parmar for the Union of India, Mr. Mukul Talwar, learned
counsel for the Guru Gobind Singh Indraprastha University,
Mr.Amarendra Saran, learned senior counsel with Mr.Amit Kumar,
Mr. Sanchit Kumar for the Medical Council of India, Mr. G.D. Gupta,
learned senior counsel with Mr. S.K. Sinha for the private
respondents, Mr. Rajat Katyal, learned counsel for AIIMS and Mr.
Sushil Dutt Salwan, learned counsel for the private respondents.
22. From the pleadings that have been set forth in the appeals as
well as in the writ petition, the following questions emerge for
consideration:
a) Whether the learned Single Judge could have directed for
holding a second entrance test and whether the University
LPA No.379/2010 & connected matters Page 23 of 39
could have taken a decision in law to hold such a test after the
first entrance test was over and the result was published?
b) Whether the University could have included the seats that were
assigned to it by the Central Government after the prospectus
was published?
c) Whether the stand and stance put forth by the appellants that
when the seats in the State quota fall vacant, they are bound to
be surrendered to the All India quota, is acceptable?
d) Whether the number of seats as allocated to the affiliated
colleges of the University is justified as a stand has been taken
by the Union of India as well as by the appellants that the same
goes beyond the institutional preference or reservation?
e) Whether the appellants/writ petitioners are entitled to get any
relief on the basis/foundation that had the seats been
surrendered to the All India quota, they would have called for
counseling for the said vacant seats in All India quota and in
that case, they had a choice of subject as well as institution?
f) In case a finding is reached that the University could not have
conducted the second entrance test, whether at this juncture, it
would be appropriate and apposite to cancel the admissions
given to the respondent students?
LPA No.379/2010 & connected matters Page 24 of 39
23. Firstly, we shall advert to the first issue. On a perusal of the
order passed by the learned Single Judge, it is perceivable that he
had, on 23.04.2010, issued certain directions and thereafter the Vice
Chancellor convened a meeting of certain experts and took a decision
that as no clarification has been received from the Medical Council of
India, a decision has been taken to fill up the remaining seats in the
larger interest of the students. The learned Single Judge thereafter
directed to hold a re-test, that is, second entrance test for filling up
the remaining 96 vacant seats and allowed all the eligible candidates
to appear in the said test under the State quota. In the course of
hearing, we put it to the learned counsel for the parties to show
whether there is any provision for holding any second entrance test
and the only answer that was given by the learned counsel for the
University was that there is no prohibition and further the Guru
Gobind Singh Indraprastha University Act, 1998 enables the
University under Section 5(25) to determine the standards for
admission to the University which may include examination,
evaluation or any other method of selection. The learned senior
counsel for the Medical Council of India stated that the University
cannot rely on its own enactment to hold a second entrance
examination but is to be totally guided by the provisions of The
Indian Medical Council Act, 1956 and the Regulations framed
LPA No.379/2010 & connected matters Page 25 of 39
thereunder. Regulation 9 of the Post Graduate Medical Education
Regulations, 2000 (for short „the Regulations‟) reads as follows:
"9. SELECTION OF POSTGRADUATE STUDENTS
(1) Students for postgraduate medical courses shall be
selected strictly on the basis of their academic merit.
(2) For determining the academic merit, the university/
institution may adopt any one of the following procedures
both for degree and diploma courses:-
(i) On the basis of merit as determined by a competitive test
conducted by the state government or by the competent
authority appointed by the state government or by the
university/ group of universities in the same state; or
(ii) On the basis of merit as determined by a centralized
competitive test held at the national level; or
(iii) On the basis of the individual cumulative performance
at the first, second and third MBBS examinations, if such
examinations have been passed from the same university; or
(iv) Combination of (i) and (iii):
Provided that wherever entrance test for postgraduate
admission is held by a state government or a university or
any other authorized examining body, the minimum
percentage of marks for eligibility for admission to
postgraduate medical course shall be 50 percent for general
category candidates and 40 percent for the candidates
belonging to Scheduled Castes, Scheduled Tribes and Other
Backward Classes;
Provided further that in non-governmental institutions fifty
percent of the total seats shall be filled by the competent
authority and the remaining fifty percent by the
management of the institution on the basis of merit.
LPA No.379/2010 & connected matters Page 26 of 39
24. A Constitution Bench in Preeti Srivastava (Dr.) and another v.
State of Madhya Pradesh and others, AIR 1999 SC 2984 has held
thus:
"55. .... The first part of Sub-section (1) empowers the
Council to prescribe standards of post-graduate medical
education for the guidance of Universities. Therefore, the
Universities have to be guided by the standards prescribed
by the Medical Council and must shape their programmes
accordingly. The scheme of the Indian Medical Council Act,
1956 does not give an option to the Universities to follow or
not to follow the standards laid down by the Indian Medical
Council. For example, the medical qualifications granted by
a University or a medical institution have to be recognised
under the Indian Medical Council Act, 1956. Unless the
qualifications are so recognised, the students who qualify
will not be able to practice. Before granting such recognition,
a power is given to the Medical Council under S. 16 to ask
for information as to the courses of study and examinations.
The Universities are bound to furnish the information so
required by the Council. The post-graduate medical
committee is also under S. 17, entitled to appoint medical
inspectors to inspect any medical institution, college,
hospital or other institution where medical education is
given or to attend any examination held by any University
or medical institution before recommending the medical
qualification granted by that University or medical
institution. Under S. 19, if a report of the Committee is
unsatisfactory the Medical Council may withdraw
recognition granted to a medical qualification of any medical
institution or University concerned in the manner provided
in S. 19. Sec. 19-A enables the Council to prescribe minimum
standards of medical education required for granting
recognised medical qualifications other than post-graduate
medical qualifications by the Universities or medical
institutions, while S. 20 gives a power to the Council to
prescribe minimum standards of post-graduate medical
education. The Universities must necessarily be guided by
the standards prescribed under S. 20(1) if their degrees or
diplomas are to be recognised under the Medical Council of
India Act. We, therefore, disagree with and overrule the
finding given in Ajay Kumar Singh v. State of Bihar (1994
AIR SCW 2515) (supra), to the effect that the standards of
post-graduate medical education prescribed by the Medical
Council of India are merely directory and the Universities
are not bound to comply with the standards so prescribed."
LPA No.379/2010 & connected matters Page 27 of 39
In the said decision, in paragraph 62, their Lordships have
ruled thus:
"62. In the premises, we agree with the reasoning and
conclusion in Dr. Sadhna Devi v. State of U.P. (1997) AIR
SCW 1146: AIR 1997 SC 1120 (supra) and we overrule the
reasoning and conclusions in Ajay Kumar Singh v. State of
Bihar (1994 AIR SCW 2515) (supra) and Post-Graduate
Institute of Medical Education and Research, Chandigarh v.
K. L. Narasimhan (AIR 1997 SCW 2274 : AIR 1997 SC 3687 :
1997 Lab IC 2317) (supra). To conclude:
1. We have not examined the question whether reservations
are permissible at the post-graduate level of medical
education.
2. A common entrance examination envisaged under the
Regulations framed by the Medical Council of India for post-
graduate medical education requires fixing of minimum
qualifying marks for passing the examination since it is not a
mere screening test.
3. Whether lower minimum qualifying marks for the
reserved category candidates can be prescribed at the post-
graduate level of medical education is a question which
must be decided by the Medical Council of India since it
affects standards of post-graduate medical education. Even
if minimum qualifying marks can be lowered for the
reserved category candidates, there cannot be a wide
disparity between the minimum qualifying marks for the
reserved category candidates and the minimum qualifying
marks for the general category candidates at this level. The
percentage of 20% for the reserved category and 45% for the
general category is not permissible under Article 15(4), the
same being unreasonable at the post-graduate level and
contrary to public interest.
4. At the level of admission to the super-speciality courses,
no special provisions are permissible, they being contrary to
national interest. Merit alone can be the basis of selection."
25. In State of Madhya Pradesh v. Gopal D. Tirthani AIR 2003 SC
2952, AIR 2003 SC 2952, the Apex Court has held thus:
LPA No.379/2010 & connected matters Page 28 of 39
"36. We sum up our conclusions as under:-
1. In the State of Madhya Pradesh allocation of 20% seats in
post-graduation in the Universities of Madhya Pradesh for
in-service candidates is not a reservation; it is a separate and
exclusive channel of entry or source of admission, the
validity whereof cannot be determined on the constitutional
principles applicable to communal reservations. Such two
channels of entry or two sources of admission is a valid
provision.
2. There can be only one common entrance test for
determining eligibility for post-graduation for in-service
candidates and those not in service. The requirement of
minimum qualifying marks cannot be lowered or relaxed
contrary to Medical Council of India Regulations framed in
this behalf.
3. In the State of Madhya Pradesh there are five Universities,
i.e., there are Universities more than one. Regulation 9(2)(iii)
cannot be made use of in the State of Madhya Pradesh either
singly or in combination with Clause (i) for determining the
eligibility for entrance into PG courses.
4. It is permissible to assign a reasonable weightage for
service rendered in rural/tribal areas by in-service
candidates for the purpose of determining inter se merit
within the class of in-service candidates who have qualified
in the Pre-PG test by securing the minimum qualifying
marks as prescribed by the Medical Council of India.
5. Women candidates constitute a class by themselves and
the provision of relaxed or reduced eligibility criteria by
reference to continuous service rendered in rural areas for
the purpose of sponsorship by the State Government in
specified disciplines which have utility for serving women
folk in villages does not suffer from the vice of invidious
discrimination."
26. In view of the aforesaid enunciation of law, there can be no
scintilla of doubt that there has to be only one entrance test as merit is
the criterion and the Regulations of the Medical Council of India in a
way command for a common entrance test. If a common entrance
LPA No.379/2010 & connected matters Page 29 of 39
test is permitted to be held on more than one occasion, it will defeat
the purpose of The Indian Medical Council Act as well as the
Regulations and further, we are disposed to think, continue to run
counter to the decision rendered in Preeti Srivastava (Dr.) case
(supra) and Gopal D. Tirthani case (supra). Thus, we conclude and
hold that the learned Single Judge has fallen into error by directing
the University to first consider whether a second test can be held and
thereafter directing them to hold a second test on the basis of a
meeting held by the experts at the instance of the Vice Chancellor.
When a particular thing is not permissible in law, a mandamus
cannot be issued to consider the same as that would tantamount to
violation of the statute or law. Thus, the order passed by the learned
Single Judge on that score has to be set aside and we do so.
27. The second issue that arises for consideration is whether the
University could have held the examination in respect of the seats
though the same were sanctioned after the issuance of the
prospectus. On a perusal of the prospectus, it transpires that the
prospectus was published on 15.2.2010. In the said prospectus/
brochure, 60 seats were shown to be reserved for the State quota out
of the total number of 118 seats. Thereafter, the number of seats was
increased to 245, out of which 123 degree/diploma seats were
LPA No.379/2010 & connected matters Page 30 of 39
allocated to the State quota. The said decision was uploaded on the
website of the University on 19.4.2010. The learned Additional
Solicitor General for the Union of India submitted with immense
vehemence that all the seats could not have been put in the second
entrance examination as the first test was over. As we have already
held that the second entrance test was not permissible in law, we do
not think it necessary to advert to the said issue.
28. The next aspect which requires to be considered is whether the
seats falling vacant in the State quota are required to be surrendered
to the All India quota. We may state here that the learned senior
counsel for the Medical Council of India as well as the learned
Additional Solicitor General for the Union of India strenuously
argued that they are to be surrendered to the All India quota, but
could not show us any provision even remotely suggesting the same.
Per contra, the learned counsel appearing for the University and the
private respondents placed reliance on an interim order passed by
the Apex Court on 13.5.2010 in Writ Petition (Civil) No. 189/2010. In
the said case, their Lordships have directed as follows:
"We are informed that several States (as many as 14) have
not completed the first round of counseling. We are also
informed the second round of counselling for the All India
quota, comes to an end today. After hearing learned counsel
and having examined the facts and having considered the
similar order passed during the previous years, we issue the
LPA No.379/2010 & connected matters Page 31 of 39
following interim directions in regard to the schedule for
extended second round of Post Graduate Counselling 2010
for All India quota:
Date Detail
20.5.2010 Time-scheduled to be hosted on the
website by Directorate General of
Health Services.
27.5.2010 All States must report updated number
of vacancies resulting from non-
joining, resigning and surrendering of
seats in „All India Quota‟ to the
Directorate General of Health Services
by 5 PM
1.6.2010 Total number of vacancies to be
notified by Directorate General of
Health Services
From 2.6.2010 Extended 2nd round of Counselling to
to 12.6.2010 be conducted by Directorate General of
Health Services at Delhi Counselling
Venue only
20.6.2010 The last date for the students to join
allotted College.
21.6.2010 Vacant „All India Quota‟ seats may be
deemed to be surrendered to the States.
30.6.2010 Final deadline for the students to join
allotted course
We direct that the unfilled seats of All India quota which
would be deemed to have lapsed in favour of the State
Governments as at the end of the second counselling today,
will not so lapse in favour of the State Government in view
of the extended second round of counselling. To ensure that
the entire extended second counselling is completed within
the time schedule, the extended second counselling for the
All India quota shall be held at Delhi. The State
Government shall adhere to the above schedule particularly
to the second item in regard to reporting of vacancies."
LPA No.379/2010 & connected matters Page 32 of 39
29. On a perusal of the aforesaid order, it is noticeable that their
Lordships had directed that the All India seats may be deemed to be
surrendered to the State quota and a direction has been issued for
extending the second counseling for the All India quota. The learned
counsel for the private respondents and the University were desirous
to inferentially deduce that the All India quota seats are surrendered
to the State quota and not vice versa. At this juncture, as the matter is
pending before the Apex Court, we do not intend to express any
opinion on this score except stating that there is no provision stating
that in case the State quota seats are not filled up, they are to be
surrendered or transferred to the All India quota.
30. In this regard, we may refer with profit to the decision in
Mridul Dhar (Minor) and another v. Union of India and others,
(2005) 2 SCC 65, wherein in paragraph 11, their Lordships have
referred to the time schedule for completion of the admission process
for medical and dental courses. There is a reference to the conduct of
entrance examination for the All India quota and the State quota.
Thereafter, their Lordships have, in paragraph 15, dealt with the
allocation of seats and eventually, in paragraph 16 and 17, have held
thus:
LPA No.379/2010 & connected matters Page 33 of 39
16. .... By maintaining the dates already fixed, if not the
result of all students, at least the results of those who
participate in the All India Entrance Examination and are in
high merit ranking can be declared and marksheets made
available to them by 15th June so as to enable them to
participate in the first counseling in All India Quota. Going
by the past figures, the candidates requiring such facility
may be only about 100. Only the candidates in the merit list
up to 2500 may need such a facility and cooperation from the
State authorities. From the year 2006, the State
Government/West Bengal Council of Higher Secondary
Education shall arrange its affairs in such a manner that the
examinations are held timely, results are declared by 10th
June and marksheets made available to the students by 15th
June. The other States/Union Territories would ensure
declaration of result by 10th June and availability of
marksheet to the students by 15th June from the academic
year 2005.
17. Another connected aspect is declaration of result of
qualifying examination/entrance examination for State
quota seats. The State Governments, as per the time schedule
are required to declare the said results by 15th June of every
year. The timely declaration of result will enable the
students to take a decision about participation in all-India
counseling or State counseling. The Central Government has
rightly pointed out that due to late declaration of result of
State-level entrance examinations, candidates and their
parents travel from all over the country to participate in all-
India quota counseling which is conducted in Delhi and then
travel to allotted medical/dental colleges. Later on, if the
candidates get admission in the colleges of their choice in
their respective States through State counseling, they have to
travel back to the college allotted through all-India quota to
get their college-leaving certificate and other documents
which are deposited with allotted college before joining the
State college. By timely declaration of the results of the State-
level entrance examination i.e. by 15th June, which is before
the start of all-India quota counseling, candidates and their
parents can be saved from facing undesirable hardships."
31. We have referred to the aforesaid paragraphs only to highlight
that one has to undertake the examination in All India quota and the
State quota. Though the learned counsel for the appellants referred
LPA No.379/2010 & connected matters Page 34 of 39
to the said decision, yet he has not really read or assessed them as
their Lordships have not stated with regard to the conversion or
surrender of seats.
32. The next limb that is required to be addressed is whether the
institutional preference or reservation in respect of the affiliated
colleges of the University is correct or not.
33. The learned senior counsel for the appellant has placed heavy
reliance on the decisions in AIIMS Students Union v. AIIMS & Ors.,
(2002) 1 SCC 428 and Saurabh Chaudri case (supra).
34. In Saurabh Chaudri case (supra), the Constitution Bench has
held thus:
"108. As regards the constitutional validity of
institutional/regional/university wise reservation/
preference, in view of this court's emphasis on the need to
strive for excellence which alone is in the national interest, it
may not be possible to sustain its constitutional validity.
However, the presently available decisional law is in
support of institutional preference to the extent of 50% of the
total available seats in the educational institutions
concerned.
Conclusions:
1) In the case of Central educational institutions and other
institutions of excellence in the country the judicial thinking
has veered around the dominant idea of national interest
with its limiting effect on the constitutional prescription of
reservations. The result is that in the case of these
institutions the scope for reservations is minimal.
LPA No.379/2010 & connected matters Page 35 of 39
2) As regards the feasibility of constitutional reservations at
the level of superspecialities, the position is that the judiciary
has adopted the dominant norm, i.e., "the higher the level of
the speciality the lesser the role of reservation". At the level
of superspecialties the rule of "equal chance for equal marks"
dominates. This view equally applies to all superspeciality
institutions.
3) As regards the scope of reservation of seats in educational
institutions affiliated and recognised by State universities,
the constitutional prescription of reservation of 50% of the
available seats has to be respected and enforced.
4) The institutional preference should be limited to 50% and
the rest being left for open competition based purely on
merits on an all-India basis.
5) As regards private non-minority educational institutions
distinction between government-aided and unaided
institutions. While government/State can prescribe
guidelines as to the process of selection and admission of
students, the government/State while issuing guidelines has
to take into consideration the constitutional mandate of the
requirement of protective discrimination in matters of
reservation of seats as ordained by the decisional law in the
country. Accordingly, the extent of reservation in no case
can exceed 50% of the seats. The inter se merit may be
assessed on the basis of a common all-India entrance test or
on the basis of marks at the level of qualifying examination.
6) The position with respect to minority-aided institutions is
that they are bound by the requirement of constitutional
reservation along with other regulatory controls. However,
the right to admit students of their choice being part of the
right of religious and linguistic minorities, to establish and
administer educational institutions of their choice, the
managements of these educational institutions can reserve
seats to a reasonable extent, not necessarily 50% as laid down
in Stephens College case. Out of the seats left after the
deduction of management quota, the State can require the
observance of the requirement of constitutional reservation.
7) As regards the unaided institutions, they have a large
measure of autonomy even in matters of admission of
students as they are not bound by the constraints of the
demands of Article 29(2). Nor are they bound by the
constraints of the obligatory requirements of constitutional
reservation."
LPA No.379/2010 & connected matters Page 36 of 39
35. The learned senior counsel for the appellants submitted that
50% of the seats are to be based on the strength of colleges which
impart education for the MBBS course. He has drawn inspiration
from some of the observations in Saurabh Chaudri case (supra). In
our considered opinion, the seats have been fixed by the Union of
India. Whether the basis is correct or incorrect does not deserve to be
debated at the instance of the appellants at this juncture. The same
has to be sorted out by the Union of India in consultation with the
Medical Council of India and the Government of NCT of Delhi for
the purpose of fixation in respect of the next year. We express no
opinion on the said score.
36. The next aspect that requires to be adverted to is whether the
appellants/writ petitioners are entitled to any relief. Their basic
claim is that had the seats been surrendered to the All India quota,
they would have been entitled to be called for counseling. We have
already held that there is no provision that the seats meant for the
State quota would be surrendered to the All India quota and the
picture on that score is absolutely unclear. On the contrary, by an
interim order, their Lordships have directed that the All India quota
seats shall be surrendered to the State quota. In this factual
LPA No.379/2010 & connected matters Page 37 of 39
backdrop, we are disposed to think that the appellants/writ
petitioners are not entitled to any relief.
37. The next issue that requires determination is whether the
respondents-students who have taken admission on the basis of the
second entrance test should face the wrath of cancellation of their
admission. True it is, there could not have been a direction to hold a
second entrance test. The same is in the realm of illegality. However,
in pursuance of the order of this Court, the students had undertaken
the examination. Some of them got qualified. That apart, we have
also been apprised that in the second entrance test, they have
obtained the requisite percentage as fixed by the Medical Council of
India. Regard being had to the special features of the case, we are not
inclined to cancel their admission and permit them to prosecute their
studies in the respective courses.
38. Before parting with the case, we must state that the present case
projects and frescoes a picture of utter confusion, an utter maze. The
University should have been well advised to enter into proper and
responsible correspondence with the Medical Council of India and
not take a decision to hold a second entrance test and justify the
same. Henceforth, we require the University to be well guided and
LPA No.379/2010 & connected matters Page 38 of 39
remain within the framework of The Indian Medical Council Act,
1956 and the Regulations framed thereunder. We also expect the
Medical Council of India to make the position clear so that this kind
of anarchy does not occur. Quite apart from the above, the Union of
India should not create puzzlement by enhancing the seats and
allotting the same to the State quota and thereafter projecting a
different picture before the Court. A sanguine homogeneity is
expected from the Government of NCT of Delhi, Union of India, The
Medical Council of India and the University while they are dealing
with the career of the students.
39. Ex consequenti, the appeals as well as the writ petition stand
disposed of without any order as to costs.
CHIEF JUSTICE
MANMOHAN, J.
SEPTEMBER 06, 2010 pk LPA No.379/2010 & connected matters Page 39 of 39