Dr. Puneet Gulati
& Ors. Etc. Etc. Vs. State of Kerala & Ors. Etc. Etc.
O R D E R
ALTAMAS KABIR, J.
1.
Leave
granted.
2.
This
is a classic example where despite having succeeded in the proceedings before
the High Court, the Appellants have not got the fruits of their victory. Although,
initially there were five petitioners in the two Special Leave Petitions (now appeals)
which we are considering, during the pendency of the matters all the petitioners,
other than Dr. Amish Kiran Bhai Mehta, opted for separate disciplines and are no
longer interested in admission to the Super Speciality Courses concerned. The appeals
are, therefore, confined only to Dr. Amish Kiran Bhai Mehta.
3.
The
constitutional validity of reservations for local students by the State for admission
to Super Speciality Medical Courses in the State of Kerala, commencing from the
academic year 2010-2011, was the subject matter of the writ petition before the
learned Single Judge of the Kerala High Court. The prospectus for admissions provided
that students who had completed MBBS or Post-graduate courses from Medical
Colleges in Kerala and Doctors who had done Rural Service in Kerala, would be given
preference for admission and students who were not from Kerala would get a chance
for admission only if there were no students from the State of Kerala available
for admission in the aforesaid courses.
4.
Altogether,
85 seats were available for the Super Speciality Courses in the DM and MCH groups,
of which 19 seats were reserved for Doctors who were in Government service and the
remaining 66 seats were available for selection in the open merit quota. After the
selection process had commenced, the prospectus was amended limiting reservation
in respect of candidates with Rural Service in Kerala to 10% of the seats and
enlarging the scope for students of Kerala origin and children of members of
All India Service in Kerala. Students who were from outside Kerala and had participated
in the written examination, questioned both the original and revised terms of the
different prospectus and challenged the preferences and reservation provided to
the local students in the prospectus.
The learned Single
Judge dismissed their writ petitions on the ground that after participating in
the entrance examination they were not entitled to challenge the prospectus. However,
in the writ appeals preferred by the said students, the question as to whether
it was open to the writ petitioners to challenge the prospectus in Court, was referred
to a Full Bench, which, after holding that the writ petitions were
maintainable, remanded the matters to the appeal court for a decision on merits.
In the appeals, the appellants prayed for restoration of the original
prospectus, which would have the effect of restoring unlimited preference to Doctors
having performed Rural Service in Kerala. The remaining writ appeals were filed
by the State challenging the decision of the learned Single Judge declaring the
provisions of the original prospectus and the revised prospectus providing for
reservation for Kerala students only, as unconstitutional.
5.
At
this stage it may be kept in mind that challenge to the original and subsequent
prospectus was based mainly on the ground that 100% reservation was unconstitutional
as had been held by a Constitution Bench of this Court in Saurabh Chaudri &
Ors. Vs. Union of India & Ors. [(2003) 11 SCC 146]. The Division Bench of
the High Court has extracted the relevant portion from the judgment in Saurabh Chaudri's
case, relating to reservation at the level of Super Speciality. It was, inter
alia, held that the higher the level of speciality, the lesser the role of
reservation.
6.
The
Division Bench agreed with the views expressed by the learned Single Judge, but
while technically allowing the claim of the candidates who were from outside Kerala,
on the ground that 100% reservation was unconstitutional, chose not to give any
relief to the said students on the ground that the course had commenced more than
6 months prior to the matter being heard by the Division Bench of the High
Court.
7.
Mr.
M.C. Dhingra, learned Advocate appearing for the appellants, submitted that a great
injustice had been caused to the said appellants, who were denied admission to the
Super Speciality Medical Courses in the State of Kerala on the basis of an invalid
legislation, which was ultimately struck down by the High Court. Mr. Dhingra submitted
that most of the candidates who had been admitted in the groups of Super
Speciality Courses, were far below the appellants in merit. Accordingly, despite
being superior in merit, the appellants were denied admission in the aforesaid courses
on the basis of a reservation policy, which was unconstitutional and was ultimately
held to be so. Mr. Dhingra submitted that after striking down the reservation policy,
as contained in the prospectus for admission to the Super Speciality Courses, the
High Court ought to have evolved a mechanism by which the appellants were also admitted
to the courses.
8.
Ms.
Liz Mathew, learned Advocate, who appeared for the State of Kerala, attempted to
support the decision taken to admit the 10 students from the State of Kerala to
the said course, but faced with the decision of both the learned Single Judge as
well as the Division Bench, she had no other option but to accept the fact that
the appellants had been discriminated against. Since the State of Kerala had not
challenged the decision of the Division Bench on the question regarding 100% reservation,
Ms. Mathew merely reiterated the views expressed by the Division Bench that it was
too late to grant any relief to the appellants herein, as a long time had elapsed
since the commencement of the courses. Ms. Mathew, however, stated that five seats
had been kept apart in the relevant courses as per the direction of this Court for
the Academic Session 2011-2012.
9.
Mr.
S. Gopakumaran Nair, learned Senior Advocate, who appeared for Dr. Cecil Kunnappilly,
who was the 2nd candidate in the waiting list for admission to the M.Ch. Genito
Urinary Surgery course, submitted that despite having been kept in the waiting list,
his client would stand to be eliminated therefrom, if the appellant, Dr. Mehta was
to be absorbed in the said discipline for the academic year 2011-2012.
10.
Mr.
V. Giri, learned Senior Advocate, and counsel appearing for the Medical Council
of India, did not have much to add to the submissions made by Ms. Mathew and
Mr. S. Gopakumaran Nair.
11.
Having
considered the judgment of the learned Single Judge and the Division Bench and the
submissions made on behalf of the respective parties, we have no hesitation in upholding
the decision of the learned Single Judge and the Division Bench as to the
constitutional validity of the first and second prospectus reserving 100% of the
seats in the said Super Speciality Courses for students from Kerala alone, but we
are also convinced that since the appellant was not given admission to the aforesaid
course, on the strength of an invalid policy, he deserves to be accommodated in
the aforesaid course in some way.
12.
By
an interim order dated 20th July, 2011, we had stayed the admission process for
the Super Speciality Courses for the year 2011-2012 in the Government Medical Colleges
in Kerala. Subsequently, by order dated 22nd July, 2011, we had modified the said
order on the prayer made on behalf of the State of Kerala by directing that the
admission process could continue but 5 seats were to be set apart for the
petitioners, 2 seats in the M.Ch. Genito Urinary Surgery Course, 1 seat in M.Ch.
Neuro Surgery Course and 1 seat in the DM Cardiology Course.
13.
Since,
of the 5 seats reserved in terms of our order, 2 are available in the M.Ch. Genito
Urinary Surgery Course, we direct that although the appellant, Dr. Mehta, did not
sit for the entrance examination for the year 2011-2012, on the strength of his
marks in the entrance examination for the year 2010-2011, he should be given
admission in one of the two seats in the M.Ch. Genito Urinary Surgery course,
which has been kept vacant in terms of our order dated 22nd July, 2011.
14.
At
this stage we may also consider the submissions which had been made by Mr. S. Gopakumaran
Nair, learned Senior Advocate that the candidate who was No.1 in the waiting list
had opted for a different discipline, namely, Thoracic Surgery and had already
been given admission in the Trivandrum Government Medical College. Accordingly,
Mr. Nair's client, Dr. Cecil Kunnappilly, could be considered for the second seat
which has been kept vacant in terms of our order dated 22nd July, 2011. In the event
the seat is available, Dr. Kunnappilly may be considered for allotment of the same,
in accordance with the rules.
15.
We
make it clear that this order is being passed in the special facts of this case
and should not be treated as a precedent in future cases. The concerned
authorities will be at liberty to fill up the other three seats, which had been
kept apart, in accordance with the Rules.16. The appeals are disposed of accordingly.
In the facts of this case, the parties shall bear their own costs in the
appeals.
............................................................J.
(ALTAMAS KABIR)
............................................................J.
(CYRIAC JOSEPH)
............................................................J.
(SURINDER SINGH NIJJAR)
New
Delhi
Dated:
17.08.2011
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