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13. Dr.(Prof.) V. Natrajan, an Expert, who prepared the modified result of Pre-P.G. Medical Examination, 2012(which was not made known to candidates), appeared before the Single Bench in the Court and demonstrated the percentile method adopted to rationalize the result of Pre-P.G. Examination, 2012, in presence of Counsel appearing for the parties. Counsel, who were representing the candidates appeared in the examination on 11.02.2012, were present, however, the learned counsel representing the candidates, who appeared in the examination on 14.02.2012, was not present and did not participate in the deliberations having taken place in the Court with Dr. Natrajan, an Expert. The Single Bench, after percentile formula being demonstrated in detail in Court, directed the Government Counsel to file an affidavit to indicate the percentile method(SEP), which they intend to adopt for rationalizing percentage of Score marks. The required affidavit was filed along with method being adopted. The statement showing raw Score marks of candidates appeared on 14.02.2012; and their percentile ranking along with inter-se merit were taken on record.

17. Being aggrieved with the aforesaid directions of the Single Bench dated 09.04.2012, the present special appeals have been filed by candidates, who appeared in the Pre-P.G. Medical Examination, 2012, took place on 14.02.2012, except one D.B. Civil Special Appeal(Writ) No.475/2012- Dr.(Miss) Ranjana Atal Vs. Rajasthan University of Health Science, Jaipur & Others, who appeared in the examination on 11.02.2012.

18. Mr. S.P. Sharma, learned Senior Counsel appearing with Mr. S.S. Shekhawat, Mr. Gaurav Sharma and Mr. Ankit Sethi, on behalf of the appellants (candidates who appeared in the examination on 14.02.2012), submitted that there was no prayer in the writ petitions filed by the writ petitioners to prepare and publish the inter-se merit list of all successful candidates, who appeared on 11.02.2012 and 14.02.2012 on the basis of statistical equivalence percentile(SEP) formula, adopted by the respondent-University; the statistical equivalence percentile formula is not in conformity with the guidelines of the Medical Council of India, which clearly provides that 50% marks are qualifying marks i.e. score marks secured by the candidate, which cannot be changed by adopting different method in finalizing the merit list. The examination conducted on 11.02.2012 and 14.02.2012, is only one common entrance test, based on common subject and merely that papers on two dates were different or majority of candidates appeared on 14.02.2012 have qualified and fallen in top ranks of merit list, cannot be a ground for adopting statistical equivalence percentile formula. It is wrong to say that paper of 11.02.2012 was tough and paper of 14.02.2012 was easier. He also submitted that score marks declared, cannot be changed.

26. Mr. Gaur further submitted that even if there was no prayer in the writ petition about applying the statistical equivalence percentile system, it being a subsequent event, could be taken into consideration by the Single Bench and has rightly been taken into consideration to do complete justice between the parties. In this regard he relied upon the judgments of Hon'ble Apex Court in Kedar Nath Agrawal (Dead) And Another Vs. Dhanraji Devi(Dead) By LRs. And Another, (2004) 8 SCC 76, Rajesh D. Darbar And Others Vs. Narasingrao Krishnaji Kulkarni And Others, (2003) 7 SCC 219 and Pasupuleti Venkateswarlu Vs. The Motor & General Traders, (1975) 1 SCC 770. He also submitted that due to unforeseen circumstance that computer server was down at one centre on 11.02.2012, a decision was taken by the respondent-University to hold the examination of one centre alone, but looking to the startling and unexpected result of those candidates who appeared in the examination on 14.02.2012, may be due to easier question paper in comparison to the question paper of 11.02.2012 and the Regulations of Medical Council of India in this behalf being silent, the respondents were right in taking a decision to apply statistical equivalence percentile procedure to prepare inter-se merit list of all the candidates, who appeared in the examinations on 11.02.2012 and 14.02.2012. He supported the impugned order passed by the Single Bench. He also submitted that percentile formula is applied in Chandigarh University, Medical Council of India has also amended the PG Medical Education Regulation by introducing the percentile formula from Academic Year 2013-14. He further submitted that SEP formula has not been declared ultra vires by the Hon'ble Supreme Court. In support of his submissions, he placed reliance on the judgment of Delhi High Court in Dr. Chanemouga Soundaram C. and others Vs. All India Institute of Medical Sciences and others, AIR 1996 Delhi 291, which was under challenge before Hon'ble Apex Court in AIIMS Students' Union's case(supra), to show the core question involved for consideration before the Hon'ble Apex Court. He also submitted that the case law, referred by Mr. S.P. Sharma, learned Senior Counsel, Mr. R.D. Rastogi and Mr. Rajendra Soni, are not applicable in the fact and circumstances of the present case and they all are distinguishable. He, therefore, submitted that there is no merit in any of the appeals and the same may be dismissed.

35. Mr. S.P. Sharma, learned Senior Counsel, heavily relied upon the judgment of Hon'ble Apex Court in the case of AIIMS Students' Union Vs. AIIMS And Others (supra) and submitted that percentile system was held to be ultra vires to the provisions of the Constitution of India and was struck down.

36. In the case of AIIMS Students' Union(supra), the main issue for consideration was as to 'whether institutional reservation for AIIMS candidates is valid or not'. The Hon'ble Apex Court held that institutional reservation for AIIMS candidates is not valid and declared it ultra vires of the Constitution. Hon'ble Apex Court, in para 18 of the judgment, referred seven points, which were under consideration before the Delhi High Court. Point No.6 was, whether the 65 percentile method is valid? Hon'ble Apex Court considered Point No.6 relating to percentile system in paras 27 and 28 of its judgment and in the facts and circumstances of that case, particularly while considering institutional reservation for AIIMS candidates, in para 28 held that under the 65% percentile method, even if we take the 35% candidates who are at the top of the merit list, the AIIMS students are able to get in even though their marks are less than or comparable to marks of SC/ST students. Further, there being no minimum qualifying marks, in the top 35% even if the lowest is quite a low mark, yet he would get in. That is not what is expected of an institute like AIIMS. For the above reasons, the High Court was of the view that the percentile system does not also assure an equitable, fair or reasonable result. The above finding of Hon'ble Apex Court on Point No.6 relating to percentile method, makes it clear that percentile system was never declared ultra vires to the provisions of the Constitution and was never struck down, but for the reasons mentioned in paras 27 and 28 of the judgment and while considering institutional reservation for AIIMS candidates, the Hon'ble Apex Court observed that the High Court was of the view that percentile system did not also assure an equitable, fair or reasonable result. Looking to the facts and circumstances of the present case, as referred and discussed above, it is clear that the judgment of Hon'ble Apex Court in the case of AIIMS Students' Union(supra), is not applicable, in the facts and circumstances of the present case.