SUPREME COURT
OF INDIA
A.I.I.M.S. STUDENTS UNION
Vs.
A.I.I.M.S. & ORS.
24/08/2001
(CJI, R.C. Lahoti & Shivaraj V. Patil)
Appeal (civil) 7366 of 1996 WITH C.A. Nos.7367/1996
JUDGMENT
R.C. Lahoti, J.
2. AIIMS __ an institution of excellence for excellence :
The Health Survey and Development Committee, popularly known as the Bhore
Committee, in its report published in 1946 recommended the establishment of a
national medical centre at Delhi which will concentrate on training well
qualified teachers and research workers in order that a steady stream of these
could be maintained to meet the needs of the rapidly expanding health
activities throughout the country. After the attainment of independence, the
Union Ministry of Health proceeded to implement the challenging idea. A
munificent grant of one million pounds by the Government of New Zealand through
the Colombo Plan helped to translate the idea into a reality. An Act of
Parliament in 1956 established the All India Institute of
Medical Sciences (AIIMS) as an autonomous institution of national importance
and defined its objectives and functions. [see - Prospectus Postgraduate
Courses, January 1996].
3. The All India Institute of Medical Sciences Act, 1956 (hereinafter the
Act, for short) sets out the Statement of Objects and Reasons as under :-
For improving professional competence among medical practitioners, it is
necessary to place a high standard of medical education, both post-graduate and
under-graduate, before all medical colleges and other allied institutions in the
country. Similarly, for the promotion of medical
research it is necessary that the country should attain self-sufficiency in
post-graduate medical education. These objectives are hardly capable of
realisation unless facilities of a very high order for both under-graduate and
post-graduate medical education and research are provided by a central
authority in one place. The Bill seeks to achieve these ends by the
establishment in New Delhi of an institution under the name of the all-India
Institute
of Medical Sciences. The Institute will develop patterns of teaching in
under-graduate and post- graduate medical education in all its branches so as
to demonstrate a high standard of medical education to all medical colleges and
other allied institutions, will provide facilities of a high order for
training of personnel in all important branches of health activities and also
for medical research in its various aspects. The Institute will have the power
to grant medical degrees, diplomas and other academic distinctions which would
be recognised medical degress for the purpose of the Indian
Medical Council Act, 1933.
4. A reference to a few provisions of the Act is apposite. Section 5 declares
that the Institute shall be an institution of national importance. Section 13
specifies the objects of the institute as under:
5. With a view to promote the abovesaid objects, the functions of the
Institute are specified in Section 14 which include amongst others
establishment of one or more medical colleges, a dental college, a nursing
college and several other institutions. The Institute is not only to produce
graduates and post-graduates of outstanding excellence, it is also to train
teachers who in their turn would impart instructions in the different medical
colleges in India. To achieve the objects and discharging the functions, the
Institute is empowered to hold examinations and grant degrees, diplomas and
other academic
distinctions and titles of under-graduate and post-graduate level. Section 23
opens with a non-obstante clause giving the provision an over-riding effect on
the provisions of Indian Medical Council Act, 1933 and declares that the
medical degrees and diplomas granted by the Institute shall be recognised
medical qualifications for the purpose of that Act, thereby entitling the
holders to the same privileges as those attached to the equivalent awards from
the recognised Universities of India.
6. In the field of postgraduate education the most important function of the
Institute is to provide opportunities for training teachers for medical
colleges in the country in an atmosphere of research and enquiry. The
postgraduate students are exposed to the newer methods of teaching and given
opportunities to actively participate in teaching exercises. The other
important objectives of the Institute are to bring together in one place
educational facilities of the highest order for the training of personnel in
all the important branches of health activity and to attain self-sufficiency in
postgraduate medical education. The educational principles and practices being
adopted are those which are best suited to the needs of the nation.[See -
Prospectus, Postgraduate Courses, July 2000].
7. The claim made by the Institute in its prospectus released from time to time is not so truthful as it professes to be, is a judicial finding arrived at, in the judgment under appeal by a Division Bench of the High Court of Delhi presided over by the Chief Justice.
8. The controversy - an exposure into reality : Three meritorious students
aspiring for achieving excellence in the field of medical sciences by availing
opportunity of receiving instructions and doing research in the premier medical
institution of the nation in the year 1996, knocked the doors of Delhi High
Court by filing a writ petition and complaining that the system, as devised by the
Institute, of reservations and blocking the seats in the process of
allocation through counselling was resulting in sacrificing merit and
prestigious post-graduation seats in creamy disciplines being usurped by such
candidates who were far far below in merit compared with the petitioners. The
Delhi High Court dug deep into the relevant records of the Institute and
penetrated its searching eyes into correspondence exchanged between the Central
Government and the Institute. All this exercise led the Delhi High Court into
finding itself stunned to see, to borrow the expression employed by the learned
Chief Justice of Delhi High Court and havoc being played with the laudable aims
and objectives on which the premier Institute of Medical Sciences was founded and
was intended to achieve.
9. On 3.12.1995 an all-India entrance examination for admission to
post-graduate courses in AIIMS was held. Any medical graduate who had secured a
minimum of 55% marks in MBBS examination was eligible to participate in the
entrance examination. The three writ- petitioners who were medical graduates
having qualified from colleges/universities other than AIIMS participated in
the examination.
10. The exact number of seats available for graduate and post- graduate seats
in the Institute by reference to the time when they were made available
initially at the commencement of these courses of study cannot be ascertained
from the record as it stands. For our purpose it would suffice to notice that
in the year 1958 the Institute made provision for 40 seats for graduation and
120 seats for post- graduation. We are told that though the number of seats for
graduation remains almost the same however the number of seats for
post-graduation in different disciplines taken together has been
increased to 132 some time in the year 1975.
11. The writ petitioners had sought for admission in postgraduate courses
for January session. The Institute conducts examinations for admission to
postgraduate courses of study twice in a year for its two sessions commencing
respectively in January and July each year. The prospectus issued in September
1995 declared that the selection shall be on merits. However, 1/3rd of the
seats were reserved for in-house candidates of the Institute. Two separate
merit lists were to be prepared for the two categories. Each candidate was to
be permitted to opt for two specialities/courses of M.D./M.S. and the
allocation was to be through counselling subject to availability of seats. Not
only 33% of the available P.G. seats were reserved for the Institutes in- house
candidates to begin with, there was yet another level of reservation for the
in-house candidates of AIIMS. Such subsequent
reservation provided for reservation in favour of in-house candidates, of 50%
seats discipline-wise, subject to an overall reservation of 33%. At the
counselling, the Institutes in-house candidates were given a priority by being
called first in point of time and they having been allotted seats in P.G.
disciplines, the general category candidates - the name denoting the category
of students other than in-house candidates of AIIMS __ were then called and
allocated the seats left over by the in-house candidates.
12. The result of the common entrance examination was declared on 8.1.1996 for
100 seats. The writ-petitioners nos.1 to 3 secured ranks 10, 12 and 89
respectively. The total number of seats available for allocation in January
1996 was 83. The reservation of seats, according to the prospectus, was as
follows :
13. The prospectus also declared that only such candidates as have secured 65th
percentile or higher marks in the entrance examination shall be eligible for
admission to postgraduate courses. The SC/ST/RBF candidates of AIIMS will be
considered for the Institute graduates quota and open general category if they
had secured marks corresponding to the 65th percentile or higher in
postgraduate entrance examination. The corresponding cut-off marks for reserved
quota of SC/ST/RBF candidates shall be 60th percentile or higher in the
entrance examination. The department/discipline-wise reservation was set out in
the scheme of allocation as follows :-
14. The seats shall be allocated on the basis of merit by a process of
counselling. Not more than 50% seats in any department/discipline will be
reserved for AIIMS graduates subject to the overall reservation of 33% of all
Post Graduate seats. A 7-
year roster of seats in different departments/disciplines is prepared for
allocation of seats.
15. The scheme contained a tabular statement described as session-wise
allocation of seats for the year 1996 for reserved categories (SC,ST and Rural)
at AIIMS PG Entrance Examination. How these reserved seats were distributed, it
would suffice to demonstrate by setting out reservation in one of the
disciplines only, by way of example. The reservation of seats made in the
discipline of Obstetrics & Gynaecology was as under:-
Obst. & Gyn : Jan. Seats July Seats Total 4 2 6 S.C. S.T. AIIMS Open
General Jan. July Jan. July Jan. July Jan. July 1 - 1 - 2 1 - 1
16. Thus for the January 1996 session the seats were four out of which two would go to SC and ST candidates and two would go to AIIMS students. No seat was thus left available for the open general category in January session and out of the two seats available in July only one could be allocated to open general category candidate.
17. The writ-petitioners before the High Court sought for striking down the policy of reservation in favour of institutional candidates as unconstitutional and fresh allocation of seats consequent thereupon.
18. The three writ-petitioners before the High Court had impleaded only the Institute as respondent. During the course of hearing the High Court felt the necessity of impleading the Medical Council of India and the Central Government also as parties before it and that was done. All India Institute of Medical Sciences Students Union sought for intervention at the hearing which was allowed.
19. It is not necessary to set out in details the pleadings of the parties
and the several issues of law arising therefrom in very many details. It would
suffice to state that the Institute, the Central Government and the Students
Union all offered a vehement opposition to the reliefs sought for by the
writ-petitioners on grounds more or less common to each other. Further it would
serve our purpose to briefly sum up the facts found and the findings on issues
of facts and law arrived at by the High Court so as to highlight the core of
controversy around which the learned counsel for the parties
have made their submissions before us.
20. Issues before, and Findings arrived at by, the High Court
The High Court keeping in view the pleadings of the parties and the submissions made by the learned counsel for different parties appearing before it framed the following points for consideration and decision:
(3)a) Whether alternatively, even if it is permissible to have institutional
quota, the 33% quota for MBBS students in P.G. Courses in a national Institute
like the AIIMS, which is expected to be premier institute in medical education,
teaching and research is on facts not permissible.
(b) Whether, alternatively, the events which have transpired from 1978 when the
33% quota was first introduced till it was withdrawn on 24.10.1994 and was
reintroduced on 17.12.1994 have shown considerable deterioration in AIIMS
standards so as to justify withdrawal of the 33% quota?
(4) In any event, is discipline/department wise quota as per the scheme of 17th
January 1996 valid and is it contrary to the judgement of the Delhi High Court
in Dr. Sandeep Tak Vs. AIIMS (C.W. 2347/95) dated 11.9.1995?
(8) What is the relief to be granted in the writ petition?
It will be useful to precis the detailed findings arrived at by the
High Court, which we do as under :
Point Nos. 1 & 2 : The Institution based preference on which is founded
33% reservation of postgraduate seats in favour of AIIMS students has no
justification on the principle of institutional continuity or on the principle
of regional requirement. Neither it can be said that the candidates falling in
this category belong to a particular region nor are they going to settle down
in Delhi. This Court has not recognised the principle of institutional
continuity as providing reasonable basis justifying carving out of a category
for the purpose of reservation nor does it help in achieving the aims and
objectives with which this premier institution of the country was established
rather it is counter- productive to the laudable object of achieving excellence
in the field
of medical sciences and heath services of the nation. After the decision of
this Court in the case of Dr. Pradeep Jain etc.etc. Vs. Union of India &
Ors. (1984) 3 SCC 654 there are 2000 seats available throughout the country
against which the AIIMS students can also compete. Thus there is no
justification left after the year 1984 for continuing this category of
reservation created in the year 1978.
21. The High Court found out the manner in which the 33% reservation in favour of AIIMS students both at the level of the entrance and then at the level of disciplinewise allocation of seats was actually working up to date. For that purpose the High Court analysed the statistics of five years, i.e., July, 1992 to January, 1996 (both inclusive) and prepared the following table :
TABLE
Session % AIIMS SC ST Open General
July92 Lowest 31.5 20.66 36.00 47.0
Jan.93 Lowest 14.7 28.16 31.5 42.6
July93 Lowest 22.16 36.16 31.33 49.50
Jan.94 Lowest 24.33 40.50 38.33 54.67
July94 Lowest 19.83 31.50 31.50 50.0
Jan.95 Lowest 31.33 41.1 31.66 47.33
July 95 Lowest 38.00 22.6 37.17 46.33
Jan.96 Lowest 46.167 46.167 45.500 61.333
(33% + Percentile 65%)
22. The statistics so tabulised led to the following inferences being drawn by the High Court :-
(i)That AIIMS students who had secured marks as low as 14% or 19% or 22% in the entrance examination got admission to PG courses while scheduled castes or scheduled tribes candidates could not secure admission in their 15% or 7% quota in PG course in spite of having obtained marks far higher than the in- house candidates of the Institute.
(ii) The figure of 33% reservation for in-house candidates was statistically
so arrived at as to secure 100% reservation for AIIMS students. There were
about 40 AIIMS candidates. The PG seats being 120, 33% thereof worked out to be
40; meaning thereby all the 40 AIIMS graduates were 100%
assured of PG seats.
23. Point No.3 : In spite of facility of having instructions and conducting research in the premier institution of the country, the reservation in favour of AIIMS in-house candidates was resulting into complacence and deterioration of standards. During the period July 1992 to July 1995 the AIIMS in-house candidates could hardly secure notable place amongst the first 100 meritorious candidates. These were the number of AIIMS graduates securing a place amongst the first 100 in the order of merit at the entrance examination for PG courses :-
24. Number of candidates from AIIMS in first 100 ranks
1. July 1992 3
2. Jan.93 14
3. July, 1993 1
4. Jan. 1994 4
5. July, 1994 2
6. Jan. 1995 7
7. July, 1995 3
25. The above is a bare spectacle. And yet the seats in creamy discipline were
being appropriated by the AIIMS in-house candidates. This deterioration in
academic standards was contributed by the students as well as the teachers.
Because of the students being assured of a seat in PG course of study, they
were not working hard and the teachers too were not putting in their best while
imparting instructions. The reservation was thus proving to be counter-
productive.
26. The High Court found that the reservation of 33% PG seats in favour of
AIIMS in-house candidates was not an objective policy decision arrived at on
considerations of public good. In the year 1978 this reservation was introduced
on account of demand made by the students union which was resorting to
agitation and dharnas. The Central Government found such reservation not in
public interest and hence it was withdrawn on 24.10.1994. The withdrawal
sparked off once again agitations and dharnas by the members of the Union and
the Central Government had to kneel down before the students within two months
of the withdrawal resulting into the reservation being restored on 17.12.1994.
The reservation in favour of AIIMS
candidates was, thus, not a decision taken with objectivity and by due
application of mind to all relevant facts but only under pressure of agitating
AIIMS Students Union.
27. Point Nos.4 & 5 : The High Court prepared a chart and set out the
same in its judgment showing disciplinewise allotment of seats from July 1992
to July 1995, also showing the percentage of marks and rank in the merit
secured by the AIIMS in-house candidates who could succeed in securing
allocation of seats mostly in creamy disciplines compared with the percentage
of marks and the high ranks secured by open general category candidates and yet
either denied a seat or allocated a seat in lesser important disciplines. We
need not burden this judgment by reproducing the long table running into pages
set out in the judgment of the High Court. We would just highlight the
deductions drawn by the High Court, culled out from its judgment,
and briefly set out as under:-
Point 6 : The percentile method along with 33%
quota and 50% quota disciplinewise subject to an overall 33% quota for AIIMS
students was arbitrary and unreasonable. In January 1996 session, an AIIMS
student with 46.167 marks got admission; that being the lowest mark for the
AIIMS students who got admission in PG course. At the same time, an SC
candidate with 46.167 marks got admission that was also the lowest mark among
SC candidates who secured admission. Candidates with as low as 52%, 48%,
48.333% and 46.167% from AIIMS got admission and also got the creamy
disciplines such as Obstetrics & Gynaecology, Medicine and Ophthalomology
while SC students with 52%, 51.333%, 50.167%, 47.833%, 47.167%, 46.667%,
46.500% and 46.167%, 47.833%, 47.167%, 46.667%, 46.500% and 46.667% got
admission. While SC candidate of 46.167% got Community Medicine, AIIMS
candidate with 46.167% was given the creamy subject of Obstetrics and
Gynaecology. Twelve AIIMS candidates were selected even though they got less
marks than the SC candidate who secured 60.33% marks. Similarly sixteen AIIMS
students got admission to PG courses even though they got less marks than the
ST student who got 62.167%.
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.
Point 7 : In view of the findings arrived at, the
High Court struck down 33% quota carved out in favour of the AIIMS in-house
candidates both at the entry level as also disciplinewise. However, the High
Court made incidental directions excluding rigorous application of its decision
to the January 1996 session so as not to prejudice the career of such AIIMS
students who had already got in. The High Court also made it clear that the
reservation in favour of SC, ST students being constitutional, as also the
reservation in favour of rural/backward/family welfare students, were left
untouched as they were not under challenge.
Appeals and Points for Decision
Feeling aggrieved by the judgment of Delhi High
Court, AIIMS Students Union and the Institute have filed these appeals by
special leave. We place on record at the very outset that correctness of the
factual findings arrived at by the High Court has not been disputed by any of
the parties before us. At the hearing, though the learned counsel for the
appellants have raised several contentions they can be crystallised into two.
Firstly, it is contended that what has been provided for the institutes
candidates is not a reservation in the sense in which it is understood in
Constitution. The term reservation
has been loosely employed here; what has been provided for is merely a source
of entry or a channel for admission the validity whereof is not required to be
tested on the principles having relevance for Articles 15 and 16 of the
Constitution. Secondly, it was submitted that reservation, if that be so, in
favour of the students who graduated from the Institute, is justified while
seeking admission to post-graduate courses of study on the well accepted
principle of institutional continuity. It was submitted that appropriation of
33% of the total post-graduate seats exclusively for the institutes candidates
does not harm the general or open category candidates. If this protection was
withdrawn, the institutes candidates who had proved their all-India excellence
while seeking admission in under-graduate level of study in the Institute,
shall be thrown once again to swim into deep waters of all-India quota pooled
from medical educational institutions of the country and the requirements of
domicile, bonafide residence and institutional
reservations applied by various universities and colleges of the country would
create obstacles in their way and they may sink for good. We will test the
validity and worth of the submissions so made.
Reservation or only a source of entry :
Placing reliance on K. Duraisamy and Anr. etc.etc. Vs. The State of Tamil Nadu
and Ors. - JT 2001 (2) SC 48 it was contended by the learned counsel for the
appellants that the reservation of 33% post-graduation seats in favour of AIIMS
students is not a reservation and use of the expression reservation in this context
is misplaced. In fact, there are two sources of entry to P.G. courses of study
in AIIMS which are: (i) in-house candidates of AIIMS, and (ii) open- category
candidates i.e. students other than from AIIMS. The ratio of entry between the
two sources is 33:67, that is to say, for admission as against 33% PG seats
there is a competition as amongst the students who have passed MBBS examination
from AIIMS and they
get admission in accordance with the order of merit within their category. The
remaining 67% PG seats are available for open category candidates, that is,
left open for students other than AIIMS and they get admission in the order of
merit prepared out of the candidates belonging to such open category, subject
to reservations within that category. The learned counsel for the appellants
further submitted that in K. Duraisamys case, this Court has upheld the
legality and permissibility of defining and laying down such two sources of
entry and the principles applicable to constitutional
reservations for scheduled caste, scheduled tribe and backward candidates
cannot be applied to test the validity of two sources of entry to PG courses of
study by treating one of the sources of entry as reservation in favour of AIIMS
candidates. We are not impressed. K. Duraisamy and Anr.s case was one where
limited seats available for post-graduation were equally divided between
in-service candidates, i.e., doctors already in the employment (of Government
and Semi-Government bodies) and open category candidates which included all
candidates, other than those falling within the definition of in-service
candidates. This Court held that the State Government had undoubted power, as a
matter of policy, insofar as the admissions to
super-speciality and P.G. Diploma/Degree/M.D.S. courses are concerned to devise
scheme or pattern of two sources of entry based upon a broad classification
into two categories, i.e. in-service candidates and non-service or private
candidates with each one of them allocated exclusively for their own category
of candidates 50% of the seats; the ultimate selection for admission depending
upon the inter-se merit performance amongst their own category of candidates. A
candidate belonging to one category could not move across to the other category
and seek entry therefrom. The PG seats available for candidates in each of the
two categories were limited and the aspirants in each category were much more
than the number of seats
allocated to each source of entry. There was competition amongst the candidates
belonging to each category. It is not as if all the candidates belonging to any
of the two categories were completely assured of availability of seats so as to
take away the element of competition and chances of failure for anyone in its
entirety. Such scheme envisaged not reservation but classification of the
sources from which admissions have to be accorded. This Court also opined that
the meaning, content and purport of the expression reservation will necessarily
depend upon purpose and object with which it is used.
It is to be noted that in K. Duraisamys case in-service candidates did not
belong to any weaker section of the society nor were one who deserved or needed
to be protected. The candidates in both the categories were medical graduates.
Some of them had done graduation sometime in the past and were either picked up
in the government service or had sought for joining government service because,
may be, they could not get a seat in post-graduation and thereby continue their
studies because of shortage of seats in higher level of studies. On account of
their having remained occupied with
their service obligations they became detached or distanced from theoretical
studies and therefore could not have done so well as to effectively compete
with fresh medical graduates at the P.G. Entrance Examination. Permitting
in-service candidates to do post-graduation by opening a separate channel for
admittance would enable their continuance in government service after
post-graduation which would enrich health services of the nation. Candidates in
open category having qualified in post-graduation may not necessarily feel
attracted to public services. Providing two sources of entry at the
post-graduate level in certain proportion between in-service candidates and
otherwise candidates thus achieves the laudable object of making
available better doctors both in public sector and as private practitioners.
The object sought to be achieved is to benefit two segments of the same society
by enriching both at the end and not so much as to provide protection and
encouragement to one at the entry level.
Reservation is guided by consideration of ensuring allotment of a privilege or
quota to, or conferral of state largesse on, a defined class or category of
limited persons dispensing with the need of competition with another defined
class of persons or remaining persons. Beneficiary of reservation is
necessarily a minor or smaller group of persons which deservedly stands in need
of protection or push up because of historical, geographical, economic, social,
physical or similar such other handicaps. Persons consisting in reserved
category are found to be an under-privileged class who
cannot be treated on par with a larger and more privileged class of persons and
shall be denied social justice and equality unless protected and encouraged.
Sources of recruitment or entry are carved out for the purpose of achieving a
defined proportion of intermingling at the target or destination between two or
more categories of such persons who though similarly situated or belonging to
one class to begin with, have stood divided into two or more categories by
fortuitous circumstances and unless allowed entry from two separate sources one
would exclude or block the other. No one
of the two classes can be said to be weaker than the other. The factor
impelling provision of different or separate sources of entry may not provide
justification for reservation. Two source of entry ensure an equal distribution
between two segments of one society. The emphasis in reservation is on the
subjects; the emphasis in providing sources of entry is on the subject matter.
Reservation is protective discrimination; provision for sources of entry is
aimed at securing equal or proportionate distribution. The characteristics of
the two may to some extent be over lapping yet the distinction is
perceptible though fine.
In Kumari Chitra Ghosh & Anr. Vs. Union of
India & Ors., (1969) 2 SCC 228, the test laid down for determining validity
of sources of admission are that the sources are properly classified whether on
territorial, geographical or other reasonable basis and must have a rational
nexus with the object of imparting a particular education and effective
selection for the purpose. In laying down sources of entry there is no question
of any preferential treatment
being accorded to any particular category or class of persons desirous of
receiving medical education over the other.
In our opinion, reliance by the learned counsel for
the appellant on the decision in K. Duraisamys case (supra) is entirely
misconceived inasmuch as the questions which are arising for decision in the
case before us are different and attract applicability of different
considerations. Institutes in-house candidates do not bear any similarity with
in-service candidates considered in K. Duraisamys case so as to claim analogy
with them and have the benefit of the ratio of K. Duraisamys case. Secondly,
the question whether merit can be sacrificed to such an extent as to be bidden
almost a good-bye
resulting into candidates too low in merit being preferred to candidates too
high in merit and the margin of difference between the two being too wide, did
not arise for consideration before this Court in K. Duraisamys case. We are
dealing with a case where the division of seats between two classes coupled
with two level reservation and unique percentile method has been so carved out,
as if tailor-made, as is resulting into a reservation which ensures allotment
to the extent of 100% of PG seats followed by guaranteed placement in the
choicest of creamy disciplines to the candidates belonging to one category
(i.e. Institutes in-house candidates) without regard to their competitive
merit. This is not a reservation but a super-reservation
and certainly not a source of entry. The first submission of the learned
counsel for the appellants therefore fails.
Reservation for institutional continuity at the cost of merit - if sustainable
and how far?
The principle of institutional continuity while seeking admission to higher levels of study as propounded by the learned counsel for the appellants though argued at length does not have much room available for innovative judicial zeal to play, for the ground already stands almost occupied by set of precedents, more so when we are dealing with professional or technical courses of study. It would suffice to have a brief resume thereof noticing the details wherever necessary.
In The State of Andhra Pradesh & Ors. Vs. U.S.V. Balaram & Ors. - (1972)
1 SCC 660 common entrance test was held for admission to the first year
integrated MBBS course and no distinction was drawn between Pre-University
course candidates (PUC) and Higher Secondary Course candidates(HSC), both of
whom had to get at least 50% marks to be eligible for admission. But the
discrimination was made only after the entrance test was over by denying
admission to the PUC candidates who may have got higher marks than some of the
HSC candidates who got admission because of the 40% reservation. This Court
held that the State could prescribe the sources for admission to the medical
college but when once a common entrance test was prescribed for all the
candidates on the basis of which selection was to be made the rule providing
further that 40% of
the seats will have to be reserved for the HSC candidates was arbitrary;
firstly, because after a common test had been prescribed there could not be a
valid classification dividing the participants, and secondly, even assuming
that such a classification was valid it had no reasonable relation to the
object sought to be achieved, that is, selecting best candidates for admission
to the medical colleges; and hence it was held to be violative of Article 14
and struck down.
In A. Peeriakaruppan Vs. State of Tamilnadu &
Ors. - (1971) 1 SCC 38 unit-wise distribution of seats said to have been
adopted for administrative convenience was struck down as it obstructed
achieving the intended object which was to select the best candidates for being
admitted to medical colleges.
In M.R. Balaji & Ors. Vs. State of Mysore & Ors., (1963) Supp.1 SCR 439
what was put in issue was an order of Mysore Government dated 31.7.1962
reserving 68% seats in technical institutions for backward classes. The
Constitution Bench of this court held that the order fell foul of the
Constitution as the classification was based solely on considerations of
castes, and secondly, because reservation of 68% was not in consonance of
Article 15(4) of the Constitution. The Constitution Bench held __ if admission
to professional and technical colleges is unduly liberalised, the quality of
our graduates will suffer. That is not to say that reservation should not be
adopted; reservation should and must be adopted to advance the prospects of the
weaker sections of the society, but in providing for special measures in that
behalf care should be taken not to exclude admission to higher educational
centres to deserving and qualified candidates of other communities. A special
provision contemplated by Art. 15(4), like reservation of posts and
appointments contemplated by Art. 16(4), must be within reasonable limits. The
Constitution Bench held that if under the guise of making
special provision, practically all the seats available were to be reserved by
the State, that clearly would be subverting the object of Article 15(4).
Speaking generally and in broad way, a special provision should be less than
50%; how much less than 50% would depend upon the relevant prevailing
circumstances in each case.
M.R. Balajis case (supra) dealt with constitutional reservation under Article 15(4). In Dr. Pradeep Jain Vs. Union of India, (1984) 3 SCC 654, a 3-Judges Bench of this court had an occasion to examine the validity of reservation based on residence requirement within the State or on institutional preference. P.N. Bhagwati, J. (as His Lordship then was) during the course of the judgment held:
. . . . . . 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 course, we would direct that so far as super specialities
such as neuro-surgery and cardiology are concerned, there should be no
reservation at all even on the basis of institutional preference and admission
should be granted purely on merit on all India basis.
[Underlining by us]
It is thus clear that as far back as in 1984 this court has disapproved reservations in postgraduate courses on the ground of institutional preference though justified a reasonable institutional preference being allowed, for the present, having regard to (i) broader considerations of equality of opportunity; and (ii) institutional continuity in education.
The facts of Dr. Jagdish Saran and Ors. Vs. Union of India - (1980) 2 SCC 768
are very near to the present case. Several facts treated as relevant
considerations which persuaded the Court in laying down principles relating to
such reservation bear a close resemblance to those before us and it will
therefore be relevant to notice the case in somewhat details. The rule for
selection of candidates for post-graduation from amongst medical graduates
until April, 1978 provided for 52% seats of the total available being left open
for a combined merit list of Delhi University and other
universities medical graduates while 48% seats were reserved for Delhi
University graduates only. This rule was changed so as to reserve 70% of the
seats to Delhi graduates leaving the remaining 30% open to all including
graduates of Delhi. The petitioner a medical graduate from Madras University
took the common entrance test and secured enough marks to qualify for admission
but was turned down because of inflation in quota, from 48% to 70% plus, for
Delhi graduates exclusively. The University of Delhi contended that an
institutional quota is not a constitutional anathema because of
many universities adopting the exclusionary or segregative device of de facto
monopoly of seats for higher medical courses to its own alumni which had
persuaded Delhi University to reciprocate with such inflated reservation. The
students went on a fast unto death and the Government had to intervene and save
the situation by providing larger reservation. Krishna Iyer, J. speaking for
himself and O. Chinnappa Reddy, J. placed on record admission of the Attorney
General agreeing that hunger strike cannot amend the Constitution though it may
set in motion changes in the basic law which must
withstand scrutiny on constitutional anvil. All grievance are not
constitutional. The primary imperitive of Articles 14 and 15 is equal
opportunity for all across the nation to attain excellence and this has burning
relevance to our times. Vide para 17, Krishna Iyer, J. speaking for the
majority posed a question to himself __ What if non- Delhi students start a
rival starvation exercise? That will lead to testing the rule of law on the
immolative or masochist capabilities of affected groups and not on the articles
of the Constitution or provisions of the legislation. We cannot uphold the
Delhi Universitiys reservation strategy merely because government was faced
with student fasts and ministers desired a compromise formula and the
University bodies simply said Amen. The constitutionality of institutional
reservation must be founded on facts of educational life and the social
dynamics of equal opportunity. Political panic does not ipso facto make
constitutional logic.
Vide para 17, it was held that reservation for
students of a particular university is not sanctioned either by Article 14 or
by Article 15. Delhi University students, as such, are not an educationally
backward class and, indeed, institution-wise segregation or reservation has no
place in the scheme of Article 15, although social and educational destitution
may be endemic in some parts of the country where a college or university may
be started to remedy this
glaring imbalance and reservation for those alumni for higher studies may be
permissible. Speaking generally, unless there is vital nexus with equal
opportunity, broad validation of university-based reservation cannot be built
on the vague ground that all other universities are practising it - a fact not
fully proved before the court either. University of illegality, even if the
artists of discrimination are universities, cannot convert such praxis into
constitutionality. Nor, indeed, can the painful circumstance that a batch of
medical graduates demonstratively fasted in front of the Health Ministers
house, ipso facto legalise reservation of seats in their favour.
Krishna Iyer, J. opined that even in the
areas where reservation is constitutionally permissible it should be as an
exception and not a rule and subject to a few rules of caution : (i) that
reservation must be kept in check by the demands of competence. You cannot
extend the shelter of reservation where minimum qualifications are absent; (ii)
all the best talent cannot be completely excluded by wholesale reservation; (iii)
need for protecting and giving a preferential push in the interests of basic
medical needs of a region or a handicapped group cannot prevail 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.D, M.D. or levels of
higher proficiency,
where international measure of talent is made, losing one great scientist or
technologist in-the-making is a national loss, the considerations prevailing at
the lower levels of education justifying protective discrimination for locals
and the handicapped group lose their potency and importance. Here equality
measured by matching excellence, has more meaning and cannot be diluted much
without grave risk for pampering local feeling will boomerang; (iv) backward
regions and universities situated miles away from forward cities with
sophisticated institutions cannot be equated. The former, for
equalisation, need crutches and extra facilities to overcome injustice while
the latter already enjoy all the advantages of the elite and deserve no fresh
props. Else there will be double injury to claims of equality of the capable
candidates coming from less propitiously circumstanced universities and
societies. In conclusion the majority opinion held that university-wise
preferential treatment may be consistent with the rule of equality of
opportunity where it is calculated to correct an imbalance or handicap and
permit equality in the larger senses.
When protective discrimination for promotion of equalisation
is pleaded, the burden is on the party who seeks to justify the ex facie
deviation from equality. The basic rule is equality of opportunity for every
person in the country which is a 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 and education like post-graduate courses. Reservation, as an
exception, may be justified subject to discharging the burden of proving
justification in favour of the class which must be educationally handicapped -
the reservation geared up to getting over the handicap. The rationale of reservation
in the case of medical students must be removal of regional or class inadequacy
or like disadvantage. Even there the quantum of reservation should not be
excessive or societally injurious. The higher the level of the speciality the
lesser the role of reservation.
Dealing with Delhi, the majority opinion in Dr. Jagdish Sarans case noted that
it being the capital of the country, population therein is drawn from all over
the country because of the vast official, political, parliamentary, judicial,
educational, commercial and other gravitational pulls. Movements, transfers and
a host of other factors contribute fluidity to Delhi population. Delhi
University is not made up so much by the sons of the soil as in universities in
other places. Delhi is in no sense a educationally or commercially backward
human region, measured against the rest of our country.
Delhi or the Delhi University, regard being had to overall Indian conditions is
neither backward nor serves through the medical colleges of its university
regional demands of Delhi. Reservation in Delhi University for Delhiites, i.e.,
Delhi alumni
on ground of educational or economic or regional handicaps was refused to be
sustained by this Court; however, some measure ofreservation on the ground of institutional
continuity was given a recognition guided by the consideration that until the
signpost of no admission for outsiders is removed from other universities and
some fair percentage of seats in other universities is left for open
competition the Delhi students cannot be made martyrs of the Constitution. The
conclusions drawn up by the majority in Dr. Jagdish Sarans case can be
crystallised as under :-
1) It is difficult to denounce or renounce the
merit criterion when selection is for post-graduate or post-doctoral courses in
specialised subjects. To sympathise mawkishly with the weaker sections by
selecting sub-standard 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. Relaxation on merit, by overruling equality and
quality altogether, is a social risk where the stage is post-graduate or
post-doctoral;
2) So long as other universities are out of bounds for Delhi graduates, discrimination needs to be anti-doted by some percentage of reservation or other legitimate device;
3) There is justification for some measure of reservation for institutional continuity in education. Parents and teachers will usually prefer such continuity and it has its own value. But institutional-wise reservation may become ultra vires if recklessly resorted to;
4) Such reservation, that is, one securing institutional continuity in education must be administered in moderation if it is to be constitutional.
R.S. Pathak, J. recording his concurring but separate opinion held that the issue before the Court did not raise the question of backward classes, scheduled castes and scheduled tribes nor was there the need for invoking the test of territorial nexus. The question was one of institutional continuity, that is, graduates from the medical colleges run by the Delhi university being favoured for admission to post-graduate classes in Delhi university. His Lordship opined :-
It is not beyond reason that a student who enters a
medical college for his graduate studies and pursues them for the requisite
period of years
should prefer on graduation to continue in the same institution for his
post-graduate studies. There is the strong argument of convenience, of
stability and familiarity with an educational environment which in different
parts of the country is subject to varying economic and psychological
pressures. But much more than convenience is involved. There are all the
advantages of a continuing frame of educational experience in the
same educational institution. It must be remembered that it is not an entirely
different course of studies which is contemplated; it is a
specialised and deeper experience in what has gone before. The student has
become familiar with the teaching techniques and standards of
scholarship, and has adjusted his responses and reactions accordingly. The
continuity of studies ensures a higher degree of competence in the
assimilation of knowledge and experience. Not infrequently some of the same
staff of Professors and Readers may lecture to the post-graduate
classes also. Over the undergraduate years the teacher has come to understand
the particular needs of the student, where he excels and where
he needs an especial encouragement in the removal of deficiencies. In my
judgment, there is good reason in an educational institution extending
a certain degree of preference to its graduates for admission to its
post-graduate classes. The preference is based on a reasonable classification
and bears a just relationship to the object of the education provided in the
post-graduate classes. . . . . . . . . . . . An institutional preference of the
kind
considered here does not offend the constitutional guarantee of equality.
[Underlining by us]
The Court by its unanimous verdict struck down the reservation to the extent of 70% plus, followed by relief to the petitioner before the Court, but refused to lay down any alternate reservation replacing the invalidated reservation for want of requisite material being available on record and left the same to be formulated by a committee of experts representing constitutional and medical expertise.
In Municipal Corporation of Greater Bombay &
Ors. Vs. Thukral Anjali, (1989) 2 SCC 249, the impugned rule provided for
college-wise institutional preference for admission in the M.D. courses. This
court agreed with the High Court which had struck down the rule and observed
that unless there are strong reasons for exclusion of meritorious candidates,
any preference other than in order of merit will not stand the test of Article
14 of the Constitution
of India.
In P.K. Goel & Ors. Vs. U.P. Medical Council
& Ors., (1992) 3 SCC 232, a combined entrance examination for admission for
postgraduate medical courses for all the seven medical colleges was held by the
University of Lucknow. A merit list was prepared based thereon. However, the
University reserved 75% of total seats available for postgraduate
degree/diploma courses in an institution, after excluding 25% seats to be
filled by open all-India Entrance Examination, for the institutional
candidates. Institutional candidate was defined as a student who had obtained
MBBS/MDS degree of that
University/institution. This court refused to uphold the rule as it resulted in
sacrificing merit and depriving meritorious candidates of getting a speciality
of their choice.
In State of M.P. Vs. Nivedita Jain, (1981) 4 SCC
296, the State Government completely relaxed the condition relating to the
minimum qualifying marks for scheduled caste and scheduled tribe candidates. So
was the case in Dr. Sadhna Devi & Ors. Vs. State of U.P. & Ors., (1997)
3 SCC 90, wherein the State of U.P. had laid down that it will not be necessary
for special category candidates, i.e. ST, SC and OBC, to obtain even the
minimum qualifying marks in the admission tests in order to gain admission to
the postgraduate medical courses. On both the occasions this court held that
need for such category candidates to take the admission test to postgraduate
medical courses was rendered an idle formality because they would
qualify for admission even though they did not secure any marks in the test and
candidates belonging to such categories were sure to get an admission so long
as their quota of seats were not filled up. It was held that merit could not be
allowed to be sacrificed altogether. In Dr. Sadhna Devi this court expressed
grave doubts if the policy of reservation could at all be extended to
postgraduate level. However, that line of enquiry was not perused further as it
did not pertain to the case. Yet, the court made it clear that the candidates
belonging even to special categories were required to secure the minimum
qualifying marks in the admission tests in order to gain admission to
postgraduate medical courses and in the event of their failing to do so
the vacant seats should be made available to general category candidates; else
it will be a national loss.
In Mohan Bir Singh Chawla Vs. Panjab University, Chandigarh & Anr., (1997) 2 SCC 171, this court having reviewed the judicial opinion declared the rule __ the higher you go, in any discipline, lesser should be the reservation __ of whatever kind and added in the larger interest of the nation, it is dangerous to depreciate merit and excellence in any field.
Dr. Preeti Srivastava & Anr. Vs. State of M.P. & Ors., (1999) 7 SCC
120, is a landmark decision of recent times delivered by a Constitution Bench.
The principles laid down by the Constitution Bench and so far as relevant for
our purpose are culled out and briefly stated hereunder:
(i) The spread of primary education has to be wide enough to cover all sections
of the society whether forward or backward. A larger percentage of reservations
for the backward would be justified at this level. These are required in
individual as well as national interest;
(ii) At the stage of postgraduate education in medical specialities, the
element of public interest in having the most meritorious students at this
level of education demands selection of students of right caliber. This
supervening public interest outweighs the social equity of providing some
opportunities to
the backward who are not able to qualify on the basis of marks obtained by them
for postgraduate learning. However, the extent of reservations and the extent
of lowering the qualifying marks, consistent with the broader public interest
in having the most competent people for specialised training, should be left to
be determined by a body of experts (such as the Medical Council of India) -
whether reservation or lower qualifying
marks, at such level have to be minimised. At the same time there cannot be a
wide disparity between the minimum qualifying marks for reserved category
candidates and the minimum qualifying marks for general category candidates.
Majmudar, J. recorded his separate opinion partly dissenting with the
majority opinion. However, he agreed that, i) there cannot be a wide disparity
between the minimum qualifying marks for reserved category candidates and for
general category candidates at the speciality level;
ii) there cannot be dilution of minimum qualifying marks for such reserved
category candidates up to almost a vanishing point. What would be a reasonable
extent? His Lordship held that maximum dilution could be up to 50% of the
minimum qualifying marks prescribed for the general category candidates and any
dilution below this rock bottom would not be permissible under Article 15(4) of
the Constitution of India.
Before we leave this topic and move ahead, to be fair to the learned counsel
for the appellants, we may deal with two decisions relied on by them. State of
Tamil Nadu Vs. T. Dhilipkumar & Ors., 1995 (5) Scale 67, is a brief
decision of this court affirming a judgment of the Madras High Court. Reservation
to the extent of 60% in favour of in-service candidates for seats in
post-graduate medical courses was struck down by the High Court directing it to
keep it confined to 50%. This court left it to the appellants to appoint a
highly qualified committee to determine from year to year what, in fact, is the
percentage-wise reservation requisite for in-service candidates having regard
to the then prevailing situation and that the percentage of 50%
was, if found appropriate, be reduced accordingly. Question of institutional
reservation was not the one posed before the Court. Needless to say, the court
was dealing with a case of two sources of entry, though, called reservation, a
situation we have already dealt with hereinabove.
D.N. Chanchala Vs. The State of Mysore & Ors., (1971) 2 SCC 293, is a case
where three universities (with medical colleges) were set up in three different
places, presumably for the purpose of catering to the educational and academic
needs of those areas. So far as the scheme for selection adopted in the
relevant rules was concerned, this court clearly held, vide para 22, that the
scheme did not make it possible for less meritorious students obtaining
admission at the cost of the better candidates. The court noted that a preference
to one attached to one university in its own institutions for post- graduate or
technical training is not uncommon. However, the preference dealt with by the
court did not amount to reservation as is
the case before us. As a broad principle, this court recognised that the
Government which bears the financial burden of running these institutions can
lay down criteria for admissions and to decide the sources from which
admissions would be made and hastened to add, lest its observations be
misunderstood, __ provided of course, such classification is not arbitrary and
has a rational basis and a reasonable connection with the object of the rules.
The test validating classification, we have held from the material available on
record accepting the factual findings arrived at by the High Court, is not
satisfied in the present case. Further, the classification resulting into
appropriation of seats by way of laying down sources for selection
necessitated by certain over-riding considerations, was held to he neither excessive
nor unreasonable (vide para 23).
None of the two cases really throws any light on the issues before us and certainly none runs counter to the view we are taking.
Preamble to the Constitution of India secures, as one of its objects,
fraternity assuring the dignity of the individual and the unity and integrity
of the nation to we the people of India. Reservation unless protected by the
constitution itself, as given to us by the founding fathers and as adopted by
the people of India, is sub-version of fraternity, unity and integrity and
dignity of the individual. While dealing with Directive Principles of State
Policy, Article 46 is taken note of often by overlooking Articles 41 and 47.
Article 41 obliges the State inter alia to make effective provision for
securing the right to work and right to education. Any reservation in favour of
one, to the extent of reservation, is an inroad on the right of others to work
and
to learn. Article 47 recognises the improvement of public health as one of the
primary duties of the State. Public health can be improved by having the best
of doctors, specialists and super specialists. Under-graduate level is a
primary or basic level of education in medical sciences wherein reservation can
be understood as the fulfilment of societal obligation of the State towards the
weaker segments of the society. Beyond this, a reservation is a reversion or
diversion from the performance of primary duty of the State. Permissible
reservation at the lowest or primary rung is a step in the
direction of assimilating the lesser fortunates in mainstream of society by
bringing them to the level of others which they cannot achieve unless
protectively pushed. Once that is done the protection needs to be withdrawn in
the own interest of protectees so that they develop strength and feel confident
of stepping on higher rungs on their own legs shedding the crutches. Pushing
the protection of reservation beyond the primary level betrays bigwigs desire
to keep the crippled crippled for ever. Rabindra Nath Tagores vision of a free
India cannot be complete unless knowledge is free and tireless striving
stretches its arms towards perfection. Almost a quarter century after the
people of India have given the Constitution unto themselves, a
chapter on fundamental duties came to be incorporated in the Constitution.
Fundamental duties, as defined in Article 51A, are not made enforceable by a
writ of court just as the fundamental rights are, but it cannot be lost sight
of that duties in Part IVA - Article 51A are prefixed by the same word
fundamental which was prefixed by the founding fathers of the Constitution to
rights in Part III. Every citizen of India is fundamentally obligated to
develop the scientific temper and humanism. He is fundamentally duty bound to strive
towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievements.
State is, all the citizens placed together and hence
though Article 51A does not expressly cast any fundamental duty on the State,
the fact remains that the duty of every citizen of India is the collective duty
of the State. Any reservation, apart from being sustainable on the
constitutional anvil, must also be reasonable to be permissible. In assessing
the reasonability one of the factors to be taken into consideration would be __
whether the character and quantum of reservation would stall or accelerate
achieving the ultimate goal of excellence enabling the nation constantly rising
to higher levels. In the era of globalisation, where the nation as a whole
has to compete with other nations of the world so as to survive, excellence
cannot be given an unreasonable go by and certainly not compromised in its
entirety. Fundamental duties, though not enforceable by a writ of the court,
yet provide a valuable guide and aid to interpretation of constitutional and
legal issues. In case of doubt or choice, peoples wish as manifested through
Article 51A, can serve as a guide not only for resolving the issue but also for
constructing or moulding the relief to be given by the courts. Constitutional
enactment of fundamental duties, if it has to have any
meaning, must be used by courts as a tool to tab, even a taboo, on State action
drifting away from constitutional values.
Conclusion
The upshot of the above discussion is that institutional reservation is not
supported by the Constitution or constitutional principles. A certain degree of
preference for students of the same institution intending to prosecute further
studies therein is permissible on grounds of convenience, suitability and
familiarity with an educational environment. Such preference has to be
reasonable and not excessive. The preference has to be prescribed without
making an excessive or substantial departure from the rule of merit and
equality. It has to be kept within limits. Minimum standards cannot be so
diluted as to become practically non-existent. Such marginal institutional
preference is tolerable at post-graduation level but is rendered intolerable at
still higher levels such as that of super- speciality. In the case of
institutions of national significance such as AIIMS additional considerations
against promoting reservation or preference of any kind destructive of merit
become relevant. One can understand a reasonable reservation or preference
being provided for at the initial stage of medical education, i.e.,
under-graduate level while seeking entry into the institute. It cannot be
forgotten that the
medical graduates of AIIMS are not sons of the soil. They are drawn from all
over the country. They have no moorings in Delhi. They are neither backward nor
weaker sections of the society by any standards - social, economical, regional
or physical. They were chosen for entry into the Institute because of their
having displayed and demonstrated excellence at all-India level competition
where thousands participate but only a mere 40 or so are chosen. Their
achieving an all-India merit and entry in the premier institution of national
importance should not bring in a brooding sense of complacence in them. They
have to continue to strive for achieving still higher scales of excellence.
Else there would be no justification for their continuance in a premier
institution like AIIMS. In AIIMS where the best of facilities are available for
learning with best of teachers, best of medical services,
sophistication, research facilities and infrastructure, the best entrants
selected from the length and breadth of the country must come out as best of
all-India graduates. We fail to understand why those who were assessed to be
best in the country before entering the portals of the Institute fall down to
such low levels as having perceptibly ceased to be best, not remaining even
better, within a period of a few years spent in the Institute. They trail
behind even such candidates as fall in constitutionally reserved categories and
yet steal a march over them in claiming creamy disciplines. The only reason
which logically follows from the material available on record is that being
assured of allotment of post-graduation seats in the same institution, the zeal
for preserving excellence is lost. The students lose craving for learning.
Those who impart instructions also feel that their non-seriousness
would not make any difference for their taughts. If that is so, there is no
reason why at the point of clearing graduation and seeking entry in
post-graduation courses of study they should not give way for those who deserve
better, and much better, than them. AIIMS holds and conducts a common entrance
examination for post-graduation wherein graduates of AIIMS and graduates from
all over the country participate and are tested by common standards. The AIIMS
students trail in the race and yet are declared winners, thanks to the
ingenious reservation in their favour. One who justifies reservation must place
on record adequate material enough, to satisfy an objective mind judicially
trained, to sustain the reservation, its extent and qualifying parameters. In
the case at hand no such material has been placed on record either by the
institute or by the AIIMS Students Union. The
facts found by Delhi High Court, well articulated by the learned Chief Justice
speaking for the Division Bench of the High Court of Delhi, visibly demonstrate
the arbitrariness and hence unsustainability of such a reservation. It was an
outcome of agitation-generated- pressure depriving application of mind, reason
and objectivity of those who took the decision. No material has been placed on
record to show that Institute graduates, if asked to face all-India competition
while seeking PG seats, would get none or face feeble opportunities because of
the policies of other universities. The way merit has been made a martyr by
institutional reservation policy of AIIMS, the high hopes on which rests the
foundation of AIIMS are belied. No sound and sensible mind can accept scorers
of 15-20% being declared as passed, crossing over the queue and arraigning
themselves above scorers of 60-70%
and that too to sit in a course where they will be declared qualified to fight
with dreaded and complicated threats to human life. Will a less efficient post
graduate or specialist doctor be a boon to society? Is the human life so cheap
as to be entrusted to mediocres when meritorious are available? If the answer
is yes, we are cutting at the roots of nations health and depriving right to
equality of its meaning. We have no hesitation in holding, and thereby agreeing
with the Division Bench of High Court, that reserving 33% seats for
institutional candidates was in effect 100% reservation for subjects. Coupled
with 50% reservation in allocation of specialities not exceeding over-all 33%
reservation integrated with 65 percentile__ a complex method, the actual
working whereof even the learned senior counsel for the parties frankly
confessed their inability in demonstrating before us at the time
of hearing __is a conceited gimmick and accentuated politics of pampering students,
weak in merit but mighty in strength. Such a reservation based on institutional
continuity in the absence of any relevant evidence in justification thereof is
unconstitutional and violative of Article 14 of the Constitution and has
therefore to be struck down. The impugned reservation, obnoxious to merit,
fails to satisfy the twin test under Article 14. Having taken a common
entrance test, there is no intelligible differentia which distinguishes the
institutional candidates from others; and there is no nexus sought to be
achieved with the objects of AIIMS by such reservation. Can the court sustain
and uphold such reservation? Justice is the earnest and constant will to render
every man his due. The precepts of the law are these: to live honorably, to
injure no other man, to render to every man his due __ said Justinian. Giving a
man his due, one of the basics of justice, finds reflected in right to
equality. Mediocracy over meritocracy cuts at the roots of justice and hurts
right to equality. Protective push or prop, by way of reservation or
classification must withstand the test of Article 14. Any over-generous
approach to a
section of the beneficiaries if it has the effect of destroying anothers right
to education, more so, by pushing a mediocre over a meritorious belies the hope
of our Founding Fathers on which they structured the great document of
Constitution and so must fall to the ground. To deprive a man of merit of his
due, even marginally, no rule shall sustain except by the aid of Constitution;
one such situation being when deprivation itself achieves equality subject to
satisfying tests of reason, reasonability and rational nexus with the object
underlying deprivation.
Suggestion of Academic Committee of AIIMS
As already noted some accommodation to AIIMS graduates within reasonable
bounds and without entirely sacrificing the merit is permissible and that too
for the present. We say so because no material has been placed on record before
us to justify if AIIMS graduates are placed in such a disadvantageous position
that if left to compete against all-India P.G. seats in the country, carved out
pursuant to the decision of this Court in Dr. Pradeep Jains case, they would be
in a lurch. Rightly the High Court left the issue to be resolved by a well-thought
of scheme providing for some institutional preference being framed by a
committee of experts. We too, at one stage, after hearing learned counsel for
the parties, felt that we shall
have to stop short only at invalidating the rule because the facts are
imperfect and Judges should not rush in where specialists fear to tread - to
borrow the expression from Dr. Jagdish Sarans case. On 22.2.2001 the learned
Additional Solicitor General appearing for the Institute informed us that
certain suggestions had come for streamlining the issue involved in these
appeals relating to quota for internal students. He submitted that it would be
appropriate for the Academic Committee of AIIMS to apply its mind to those
suggestions in the light of the law settled by this Court and to consider
whether any constitutionally relevant criteria could be formulated for the
future in this behalf. We deferred the judgment taking on record the
submission and suggestion so made at the Bar. As the Academic Committee could
not meet within three weeks __ the time as originally appointed, the judgment
was further deferred. Then an affidavit dated 11.4.2001 sworn in by the
Director of AIIMS was filed stating that the Academic Committee of the
Institute met on three different dates to consider the issue in all its
aspects, and having considered alternatives which would ensure fairness to all,
the prevailing situation through the country, the judgment of Delhi High Court
under appeal and the proceedings in this Court __ as stated in the affidavit,
made a few recommendations. The special features taken into consideration by
the Academic Committee included the following:-
a) integrated teaching in both __ in the pre as well as the para clinicals,
b) problem based learning included in the teaching schedule.
c) Small group studies as for example the case studies included in the teaching schedule.
d) The undergraduate is supposed to work in two scientific study projects during his or her under graduation.
e) The syllabus which gives a cutting edge to the AIIMS graduates as it covers the entire spectrum of current medicine together with that needed to work at the basic level. This is as opposed to the pattern being followed elsewhere which often covers only the bare minimum recommended by the Medical Council of India.
The Academic Committee felt that a degree of assurance of continuing
post-graduate education had to be offered to AIIMS students for the following
reasons :-
The Academic Committee has been bold enough to admit that some anomalies had
crept in to the selection procedure due to the quota being implemented without
insistence on any minimum qualifying marks and therefore the committee proposed
to immediately add minimum qualifying marks as pre-requisites to eligibility
for the AIIMS quota which was also to be reduced from 1/3rd to 1/4th of the
available seats. The committee felt that the quota be implemented
disciplinewise in accordance with the pattern all over India and also to
obviate any challenges on the basis of one speciality
being more in demand than the other in any particular year. The committee
therefore decided :-
The End Result :
The following directions in our opinion will meet the ends of justice :-
1) The institutional reservation for AIIMS candidates is declared ultra
vires the Constitution and, hence, is struck down.
2) By way of institutional preference the institutional candidates, i.e., those
who have graduated from the institute shall be preferred for admission against
25% seats available to open category candidates and not 25% seats
disciplinewise out of the total post-graduate seats for AIIMS undergraduates as
suggested by the Academic Committee.
3) An uniform minimum cut-off of 50% marks in the competitive entrance test as
a condition of eligibility for all candidates may be adopted subject to further
rider (i) that the last student to qualify for admission as AIIMS graduate
cannot be one who has secured marks at the common entrance P.G. test less than
the one secured by any other candidate belonging to a reserved category
enjoying constitutional protection such as SC, ST etc.,
and (ii) that the margin of difference between the qualifying marks for
Institutes candidate shall not be too wide with the one for general category
candidate.
4) Any seat left vacant out of the preferential seats for AIIMS graduates
consequent upon the abovesaid directions, shall be diverted to and made
available for open general category candidates.
5) The preference for institute candidates to the extent of 25% as abovesaid
shall remain confined to admission in P.G. course of study. There shall be no
further reservation in the matter of allotment of seats disciplinewise which
allotment shall be made solely on the basis of merit out of a common list drawn
up pursuant to the result of common entrance examination placing the selected
candidates strictly as per their ranking.
So we drop the curtain on the controversy for the present. Before parting it is
necessary to place on record certain observations by way of clarifications lest
our judgment should be misunderstood or misapplied. Our judgment shall not come
in the way of the Academic Committee or any other competent body of experts
devising a better alternative scheme of admissions to the post-graduate level
of study in the Institute which may revise and further scale down the
reservation or preference by giving more weight to merit and excellence. We
have not touched and not dealt with other reservations made by the Institute
and therefore our judgment is not an implied approval of other reservations as
to which we have grave doubts if they would be
sustainable if challenged and we do not say any more as the present case does
not provide an occasion for testing the validity of other reservations.
Further, this judgment of ours shall not have the effect of invalidating such
admissions as have already been given. The directions made hereinabove shall
operate for future, i.e. today onwards. The appeals are disposed of in terms of
the directions made hereinabove. No order as to the costs.