Punjab-Haryana High Court
The Faculty Association, Post Graduate ... vs The Union Of India And Others on 16 January, 1992
Equivalent citations: AIR1993P&H46, AIR 1993 PUNJAB AND HARYANA 46, (1992) 1 SERVLR 678
ORDER
1. This judgment will dispose C.W.P. Nos. 16441 and 15313 of 1990, as common questions of law and facts are involved therein.
2. The petitioners in these cases challenge the advertisement issued by the Post Graduate Institute of Medical Education & Research, Chandigarh (in short P.G.I.) in the Indian Express of 25th November, 1990, in which certain number of seats were reserved for the candidates belonging to Scheduled Castes/Scheduled Tribes for admission to post-doctoral courses in certain super-specialities.
3. By the advertisement, referred to above, applications were invited for filling 21 seats in Post-doctoral courses, as follows :--
D.M. M.Ch.
1.
Cardiology 2
1. Cardiovascular & Thoracic Surgery 2
2. Clinical Pharmacology 1
2. Neurosurgery 3
3. Endocrinology 3
3. Paed. Surgery 1
4. Gastroemerology 2
4. Plastic Surgery 3
5. Nephrology 1
5. Urology 3 Six posts, one each for D.M. courses in Cardiology, Endocrinology and Gastroente-rology and M.Ch. Courses in Neuro Surgery, Plastic Surgery and Urology were reserved for the candidates belonging to Scheduled Castes/Tribes. This reservation was purported to have been made under R. 27 of the P.G.I. Rules, which is in the following terms :--
"27 -- Admission to courses of Studies : Twenty per cent of the seats to every course of study in the Institute shall be reserved for candidates belonging to scheduled castes/ scheduled tribes or other categories of persons in accordance with the general orders issued by the Central Government from time to time."
4. The argument of Mr. S. S. Nijjar, Bar-at-law, Senior Advocate, learned counsel for the petitioners, is that in the Post-graduate classes in Medical Education, there cannot be any reservation for any class, or category especially in the post-doctoral courses, in which the doctors specialise themselves in the super-specialities. He submitted that of course the reservation may be there in all spheres, including education, for the Scheduled Castes/Tribes because of the consideration of social and education backwardness, but such reservation should be up to a certain level in education and up to a certain extent. He further submitted that by virtue of reservation a person who is not as meritorious as compared to a candidate from the non-reserved class, yet he would be taken in the service or get admission in a college and to that extent, a more meritorious man will have to make a room for a not so meritorious man. He submitted that this has been made permissible in the Constitution itself that to some extent the equality clause in the Constitution can be tinkered with. He submitted that a line has to be drawn somewhere beyond which the persons belonging to the reserved categories must rub shoulders with a general category candidates and be appointed to a post or get admission in a College on the basis of sheer merit. The argument proceeded that the Supreme Court while laying down the quantity of reservation, had restricted that in no case the reservation for various classes/ categories should exceed 50% of the posts/ seats available. According to the learned counsel, the Supreme Court in various judgments drew a line that beyond 50% the reserved categories must rub shoulders with the open category candidates. As an analogy, the learned counsel submitted that even equalitative-wise the reservation must stop at some level in education. At higher levels of education and at higher echelons of service there should not be any reservation at all. In particular context of the reservation in the higher medical education, the learned counsel for the petitioners cited a judgment of the Supreme Court in Dr. Jagdish Saran v. Union of India, AIR 1980 SC 820, to contend that there should not be any reservation for the super-specialities in medical education. The learned counsel particularly referred to paragraphs 23, 38, 39 and 44, which are reproduced below :--
"23. Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group can-not prevail in the same measure at the highest scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of Ph. P.. M.D. or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. The Indian Medical Council has rightly emphasised that playing with merit for pampering local feeling will boomerang. Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract the Indian Medical Counsel's recommendation, which may not be the last word in social wisdom but is worthy of consideration :
"Students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for postgraduate studies should be conducted by the Universities.
38. The mechanics of merit measurement is simple. All applicants, whichever the University from where they have taken M.B.B.S. degree, must apply for a common entrance test. The yard-stick of merit is the marks obtained. Thereafter 70% of the seats is allotted to Delhi graduates and the balance 30% is selected from out of all the remaining applicants, Delhi graduates included. So much so, Delhi graduates get much more than 70% of the total seats. Although the stage of application of reservation may bear upon the effective quantum of advantage, the principal question is as to whether a minimum of 70% for the Delhi graduate alone is not far too excessive, based on extraneous agitational factors and essentially contradicting Arts. 14 and 15?
39. If equality of opportunity for every person in the country is the constitutional guarantee, 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 techonolo-gical 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 levels 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 rejax 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 bedcniedjiiebest_the nation's!alent 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 efficiency may be good enough and what is needed is merely to weed out the worthless.
44. Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for created talent, for fine-tuned performance at the difficult heights of some disciplines where the best along is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting substandard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists, not humdrum second-rates. So it is that relaxation on merit by overruling equality and quality atlogether, is a social risk where the stage is post-graduate or post-doctoral.
5. The learned counsel also cited another judgment of the Supreme Court in Dr. Pradeep Jain etc. v. Union of India, AIR 1984 SC 1420, and pointedly referred to the following lines in paragraphs 10 and 22 respectively of the judgment :--
"10. If every citizen is afforded equal opportunity, genetically and environmentally, to develop his potential, he will be able in his own way to manifest his faculties fully leading to allround improvement in excellence. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detirment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote sub-standard candidates and bring about fall in medical competence, injurious in the long run to the very region. "It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation." The Primary consideration in selection of candi dates for admission to the medical colleges must, therefore, be merit. The object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious stud-
ents."
"22. 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 post graduate 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 percent 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 courses, 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 institutional preference and admissions should be granted purely on merit on all India basis."
6. On the other hand, learned counsel for the respondents, as well as learned counsel for the P.G.I. submitted that the observations made in Dr. Jagdish Saran's case (supra) have been made in the context of reservation or preference for admission on the basis of Institutional preference and does not deal with the proposition as to whether in the super-specialities or post-graduate studies in the Medical science, there can be any reservation at all. According to them, the observations made by the Supreme Court are obiter in nature and cannot be applied for reservation for members of Scheduled Castes/tribes, which is totally different than Institutional preference/reservation for students for admission in a College. They further submitted that it is not for the Court to go into the matter of reservation and it is for the Authorities to see whether a particular class is properly represented and whether certain seats are to be reserved for that class or not. The learned counsel referred to the observations made in para 25 in Dr. Jagdish Saran's case, (supra), which are to the following effect :--
"We hasten to keep aloof from reservations for backward classes and Scheduled Castes and Tribes because the Constitution has assigned a special place for that factor and they mirror problems of inherited injustices demanding social surgery which is applied thoughtlessly in other situations may be a remedy which accentuates the malady."
7. From the above observations, learned counsel wanted to conclude that the Supreme Court rather laid down that there can be reservation in super-specialities in the Medical education for Scheduled Castes/ Tribes.
8. After hearing the learned counsel for the parties, I am of the view that there is merit in the submissions of the learned counsel for the petitioners. There is no doubt that in both the cases before the Supreme Court in Dr. Jagdish Saran's case (supra) as well as in Dr. Pradeep Jain's case (supra), the Supreme Court was dealing regarding reservation on the basis of Institutional preference or on the basis of domicile. However, after posing the question in para 38 of the judgment in Dr. Jagdish Saran's case (supra) (which has already been quoted above), the Supreme Court in para 39 made observations generally in regard to any reservation. It observed in para 39 that merit must be the test when choosing the best and this proposition has greater importance when we reach the higher levels of education like post-graduate courses. It went on to observe that 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 lower levels of education, but more at the higher levels of sophisticated skills and strategic employment. 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. The further lines in this para are very important, where the Supreme Court observed that "if the best potential in these fields is cold-shouldered for populist consideration garb-ed as reservations, the victims, in the long run, may be the peogle themselves"
Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless.
9. I am of the opinion that the observations made by the Supreme Court were being made qua reservations in general and not specifically for the Institutional preference or reservations on that count. The expression used in para 39, as noticed above, is "if the best potential in these fields is cold-shoulered for populist considerations garbed as reservations....." clearly goes to show that these observations were being made not qua only reservation for giving Institutional preference, but these observations were taking in its ambit all types of reservations in the higher education. In my considered view, the observations which have been made in para 39 of the judgment in Dr. Jagdish Saran's case, would apply even for reservation for Scheduled Castes and Scheduled Tribes. I am not suggesting that there should not be any reservation for these categories at all, but such reservation must stop at higher levels. The persons belonging to these categories have already reached quite high because of the reservations for them and that too without competing with the general category candidates. Why should not such candidates rub shoulders with the general category candidates at the higher levels where sophisticated skill and professional expertise of very high degree is required? If reservations are allowed, we may be running a grave national risk as we may be denied the best of nation's talent who may be deprived admission at the behest of a candidate who is not so talented or meritorious. The inroads that can be made in the equality clause by the exception to that clause in the Constitution by resorting to reservation must not negate the equality clause altogether. It would be reasonable to say that at the higher levels of education in Medicine, with which we are dealing in the present case, there should not be any reservation at all.
10. When the question of reservation on the basis of domicile was considered by the Supreme Court in Dr. Pradeep Jain's case (supra), it was observed that as far as postgraduate studies in super-specialities are concerned, there should not be any reservation on the basis of domicile, but the Supreme Court permitted such a reservation to some extent at the graduate level.
11. There is another aspect of the matter also. Even if it is assumed that the reservations are possible for scheduled Castes/ tribes, then under Rule 27 of the P.G.I. Rules, quoted above, only 20% of the seals in every course of study can be reserved for candidates belonging to scheduled Castes/tribes. It is clear from the advertisement that in D.M. Course out of two posts in Cardiology, one has been reserved for Scheduled Castes, out of three posts in Endocrinology, one post has been reserved for Scheduled Castes. Out of two posts, one post in Gastroenterology has been reserved; whereas in M.Ch. Course one seat out of three in Neurosurgery, one seat out of three in Plastic Surgery and one seat out of three in Urology has been reserved for the Scheduled Castes/ Scheduled Tribes candidates. This is in excess of 20%. The seats so reserved come to 50% or 33% in each department. This reservation is in violation of Rule 27 itself. U has been observed by the Supreme] Court in Dr. Chakradhar Paswan v. State of Bihar, AIR 1988 SC 959 : (1988 Lab 1C 619) that each department has to be considered separately for the purposes of reservation.
12. For the foregoing reasons, these writ petitions are allowed and the advertisement issued by the P.G.I, dated 25th November, 1990 (Annexure P. 1) is quashed to the extent it reserves six posts in different super-specialities for candidates belonging to Scheduled Castes and Scheduled Tribes. By the order of the Motion Bench, it was kept open to the P.G.I, to make appointments on merit is without treating those six posts to be reserved. Now the P.G.I, will take expeditious steps to fill in the posts advertised under Annexure P-t in accordance with this judgment.
13. Petitions allowed.