Dr. Saurabh Dwivedi vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8268 OF 2017 [@ SLP (C) NO. 16240 OF 2017 @ DIARY NO. 16874 OF 2017]

DR. SAURABH DWIVEDI AND ORS. ... APPELLANTS

VERSUS

UNION OF INDIA AND ORS. ... RESPONDENTS

CIVIL APPEAL NO. 8269 OF 2017 [@ SLP (C) NO. 16241 OF 2017 @ DIARY NO. 16951 OF 2017]

ANUBHAV SHARMA AND ORS. ... APPELLANTS

VERSUS

UNION OF INDIA AND ORS. ... RESPONDENTS

CIVIL APPEAL NO. 8270 OF 2017 [@ SLP (C) NO. 16242 OF 2017 @ DIARY NO. 16978 OF 2017]

ARIJIT PAL AND ORS. ... APPELLANTS

Signature Not Verified VERSUS Digitally signed by PARVEEN KUMAR Date: 2017.06.07 15:57:32 IST Reason:

UNION OF INDIA AND ORS. ... RESPONDENTS 2

CIVIL APPEAL NO.8271 OF 2017 [@ SLP (C) NO. 16243 OF 2017 @ DIARY NO. 17089 OF 2017]

BANARAS UNIVERSITY THROUGH ITS REGISTRAR ... APPELLANT

VERSUS

UNION OF INDIA AND ORS. ... RESPONDENTS

CIVIL APPEAL NO.8272 OF 2017 [@ SLP (C) NO. 16244 OF 2017 @ DIARY NO. 16992 OF 2017]

ALIGARH MUSLIM UNIVERSITY ... APPELLANT

VERSUS

UNION OF INDIA AND ORS. ... RESPONDENTS

CIVIL APPEAL NO.8273 OF 2017 [@ SLP (C) NO. 16245 OF 2017 @ DIARY NO. 17146 OF 2017]

DR. VASUDHA SINGH ... APPELLANT

VERSUS

THE STATE OF UTTAR PRADESH AND ORS. ... RESPONDENTS 3

WRIT PETITION (C) NO. 76 OF 2015

ASHISH RANJAN AND ORS. ... PETITIONERS

VERSUS

UNION OF INDIA AND ORS. ... RESPONDENTS

CIVIL APPEAL NO. 8274 OF 2017 [@ SLP (C) NO. 16073 OF 2017]

DR. NITIN KUMAR AND ANR. ... APPELLANTS

VERSUS

DR. RAM DIVAKAR AND ORS. ... RESPONDENTS

JUDGMENT

Deepak Gupta, J.

Applications for permission to file special leave petitions are

allowed. Applications for impleadment/intervention are also

allowed.

4

2. Leave granted in all the special leave petitions.

3. By this order we are disposing of all the aforesaid civil

appeals as well as interlocutory application(s) relating to the State

of Uttar Pradesh in Writ Petition (C) No. 76 of 2015. Keeping in

view the urgent nature of the dispute, the appeals and the

interlocutory application (s) relating to the State of Uttar Pradesh

in the Writ Petition (C) No.76 of 2015 are taken up for final

hearing with the consent of the parties.

4. Two questions arise for decision in these cases:

(i) Whether the High Court was justified in setting aside

the institutional preference in the Aligarh Muslim

University (for short “AMU”) and Banaras Hindu

University (for short “BHU”) and further directing that

the post-graduate seats in these institutions shall be

filled up only from those students who have passed

MBBS from Institutions, Universities and Colleges in

the State of Uttar Pradesh;

5 (ii) Whether the High Court was justified in issuing a

direction that the benefit of service rendered in

remote/difficult areas should be given only to those

doctors of the Provincial Medical Health Services (for

short “the PMHS”), who have cleared MBBS

examination from a college within the State of U.P.

5. The impugned order has been challenged by the appellants,

some of whom are persons who have been admitted in AMU and

BHU and whose admissions are now sought to be cancelled on

the basis of the impugned order. Some of the appeals have been

filed by in service doctors who have graduated from outside the

State of U.P. Appeals have also been filed by the AMU and

the BHU.

6. Briefly stated the facts of the case are that a writ petition

being Writ Petition (C) No. 17183 of 2017 was filed by certain

doctors in which their only claim was that the benefit of

Regulation 9(iv) of the Medical Council of India Post Graduate

Medical Education Regulations, 2000 (hereinafter referred to as

“the 2000 Regulations”) was only available to those doctors 6

serving in the Uttar Pradesh PMHS (hereinafter referred to as “in

service doctors”), who had passed their MBBS examination from a

university/institution situate within the State of Uttar Pradesh.

No other issue was raised in this writ petition.

7. This matter was taken up by the High Court on 15.05.2017

and in its order dated 15.05.2017, the High Court made reference

to various circulars issued by the State of Uttar Pradesh from

time to time and the Court raised certain queries in this order.

Though the High Court in the writ petition was only concerned

with one issue i.e. whether in service doctors of PMHS cadre, who

had obtained their MBBS degree from outside the State of U.P.

were entitled to benefit of Regulation 9(iv) of the 2000

Regulations, the High Court framed a number of questions

pertaining to admission to post-graduate courses in medical

colleges and asked the Chief Secretary to file a reply to the same.

The High Court, without any material before it, also raked up the

issue with regard to admissions to AMU and BHU and raised a

query whether students, who had passed their MBBS/BDS final

examination from colleges within the State of U.P. were entitled 7

for admission to AMU and BHU on the basis of their merit in the

competitive examination.

8. The Chief Secretary filed an affidavit stating that the medical

education is governed by the Medical Council of India (for short

“the MCI”), which is a statutory body set up under the Medical

Council of India Act, 1956. Reference was made to Rule 9(iv) of

the 2000 Regulations, which reads as follows:

“9. Procedure for Selection of Candidate for Post Graduate Courses shall be as follows:-

(i) xxx xxx xxx

(ii) xxx xxx xxx

(iii) xxx xxx xxx

(iv) The reservation of seats in Medical Colleges/Institutions for respective

categories shall be as per applicable laws prevailing in States/Union Territories. An All India merit list as well as State-wise merit list of eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility cum Entrance Test and candidate shall be admitted to Post Graduate courses from the said merit list only;

Provided that in determining the merit of candidate who are in service of Government/Public authority, weightage in the marks may be given by the 8

Government/Competent Authority as an incentive @ 10% of the marks obtained for each year of service in remote and/or difficult areas up to a maximum of 30% of the marks obtained in National Eligibility Cum Entrance Test. The remote and difficult areas shall be as defined by the State Government/Competent authority from time to time………”

9. In State of U.P. & Ors. v. Dinesh Singh Chauhan, 2016 (8)

SCALE 16, this Court held that Regulation 9 of the 2000

Regulations was a complete Code in itself to determine inter se

merit of the candidates and that the State was entitled to make a

provision for giving weightage of marks as incentive to those in

service candidates who have worked in notified, remote or difficult

areas in the State. The challenge in Dinesh Singh Chauhan’s

case was to the preference/advantage given by Regulation 9(iv) of

the 2000 Regulations. This challenge was rejected. The Chief

Secretary in his affidavit clearly stated that all in service

candidates, who have worked in the notified, remote or difficult

areas in the State were eligible for benefit of Regulation 9(iv) and

no distinction could be made between those in service candidates,

who have done their graduation from within the State of U.P. or

those who had done the graduation outside the State of U.P.

Despite the clear cut stand of the State, the High Court held that 9

the circulars giving institutional preference to students of AMU

and BHU are contrary to 2000 Regulations. The High Court

further went on to held that weightage of marks under Rule 9(iv)

was available only to those candidates, who had passed their

MBBS examination from universities/institutions situated within

the State of U.P.

10. Admission to post-graduate courses in medical colleges is

done on the basis of NEET. 50% of the seats are filled on merit

on all India basis and 50% of the seats are filled on merit drawn

on State-wise basis. Within the State merit list there is a

provision for providing weightage to in service doctors as per

Regulation 9(iv) to those doctors who have worked in remote or

difficult areas.

11. As far as the first question raised before us is concerned, we

are clearly of the view that the High Court has over-stepped its

jurisdiction and went beyond the scope of the writ petition while

issuing the direction relating to AMU and BHU. This issue was

admittedly not raised by the appellants/petitioners. These two

universities were not even parties before the High Court. The

selected candidates were not joined as respondents. Both these 10

universities are central universities. The State Government had

issued a circular on 31.03.2017 clarifying that students, who had

done their MBBS/BDS final year from AMU and BHU would be

entitled for counselling only in the seats available in their own

institutes viz., AMU and BHU. It would be pertinent to mention

that in the central universities 100% admissions for MBBS course

are based on all India examination. There is no State quota for

seats in central universities like AMU and BHU or other central

institutions like All India Institute of Medical Sciences etc. It is,

therefore, apparent that the State can have no control over the

seats in those medical colleges which are part of the central

universities/institutions. These seats have to be filled up on the

basis of merit and institutional preference could be given to the

extent permissible i.e. 50%, as has been held by a catena of

decisions including the Constitution Bench judgment of this

Court in the case of Saurabh Chaudri & Ors. v. Union of India &

Ors., (2003) 11 SCC 146, wherein this Court held as follows:

“72. Having regard to the facts and circumstances of the case, we are of the opinion that the original scheme as framed in Dr. Pradeep Jain v. Union of India, (1984) 3 SCC 654 should be reiterated in preference to Dr. Dinesh Kumar (II) v. Motilal Nehru Medical College, (1986) 3 SCC 727. Reservation by way 11

of institutional preference, therefore, should be confined to 50% of the seats since it is in public interest.

xxx xxx xxx

74. AIIMS is an institution of excellence. It is a class by itself and pride. We are, therefore, of the opinion that in AIIMS and the medical colleges of the Central University, merit should have primacy subject of course to institutional preference to the extent of 50% of the total seats in the MBBS course. In all other respects the decision of this Court in AIIMS Students' Union v. AIIMS, (2002) 1 SCC 428 shall operate.”

12. The 50% institutional reservation in AMU and BHU, which

had been reflected in their prospectus, was not challenged by any

body before the High Court. As stated earlier, AMU and BHU

were not parties before the High Court. The MCI and the Union of

India were also not parties before the High Court. The High Court

did not take into consideration the judgment of this Court in the

case of Saurabh Chaudri (supra) and other cases upholding

institutional preferences in central universities. The High Court

did not also take into consideration the fact that the State had no

power to control admissions to these universities. Therefore, as

far as the first issue is concerned, we are clearly of the view that 12

the High Court overstepped its jurisdiction and the order of the

High Court is erroneous and is liable to be set aside.

13. As far as the second issue is concerned, Rule 9(iv) clearly

provides that an incentive at the rate of 10% of the marks for

each year can be provided to those in service candidates, who

have served in remote or difficult areas subject to the condition

that the highest incentive will be of 30% marks. The power to

notify the remote and difficult areas is vested with the State

Government. This power has been upheld by this Court in

Dinesh Singh Chauhan’s case (supra). It would be pertinent to

mention that in this case, this Court only upheld this power and

held that Rule 9 (iv) of the 2000 Regulations is a complete Code in

itself. This Court was not dealing with the question as to whether

the benefit of weightage of marks for having served in remote or

difficult areas could be given only to local in service doctors or to

the entire category of in service doctors.

14. In fact, Rule 9 (iv) itself only provides for weightage being

given for each year of service rendered in remote and difficult

areas. The purpose behind this rule is that those doctors who

willingly served in remote and difficult areas should be given 13

some preference while considering them for admission to

post-graduate courses. The intention is to benefit those who left

the comforts of towns and cities and are willing to work in

difficult conditions in remote and difficult areas. The State of

U.P. had also issued a Circular which inter alia reads as follows:

“9. Benefit of Weightage/reservation to Medical Officers belonging to PMHS category:

In accordance with the judgment passed by Hon’ble Supreme Court and Regulations framed by Medical and Health Department of the State as per MCI guidelines, the State Department shall issue no objection certificates to the MBBS Degree Holding Doctors belonging to PMHS Cadre for counselling by giving weightage as per rules and the merit list shall be accordingly modified and they shall be given admission in the Government Medical Colleges/Universities/Private Medical Colleges.

The proceedings for the PMHS category Medical Officers for Government Medical Colleges/Universities shall be taken in accordance with the Post Graduate Regulation, 2000 and policy framed vide Govt. Order No. 4197/med-3-16-G-179/2005 dated 23.12.2016 issued by Medical Department.”

15. The aforesaid circular clearly mentions that benefit of Rule

9(iv) of the 2000 Regulations shall be available to medical officers

belonging to PMHS cadre, who have served in remote and difficult

areas. No distinction has been made between those who have 14

graduated from within the State of U.P. or those who have

graduated from outside the State of U.P. Once the graduate

doctors, whether they have qualified their MBBS/BDS

examination from within the State of U.P. or from any other part

of the country, are selected and join the medical health service in

the State of U.P., they form part of one service, i.e. PMHS.

Thereafter, when these doctors are posted to remote or difficult

areas they are posted as doctors of PMHS and not on the basis as

to which State they have done their graduation from. We,

therefore, see no reason as to why the benefit of weightage in

terms of Regulation 9(iv) should be limited to those in service

candidates of the PMHS category, who have graduated from

within the State of U.P. This is a totally artificial distinction

drawn up by the High Court. In fact, the State of U.P. had also

not made any such distinction and the affidavit of the Chief

Secretary was categorical that the 2000 Regulations had not

created such a divide or distinction. In this regard, we may make

reference to the following portion of the affidavit of the

Chief Secretary:

“14. That since the Hon’ble Supreme Court has upheld the validity of Regulation 9 and has categorized it as a complete code and a 15

provision for determining inter-se merit and grant of weightage to in-service candidates who have worked in notified, remote or difficult areas in the state, and there is nothing in the Post Graduate Medical Education Regulations 2000 to create a divide or a distinction between such of the in-house candidates who may have done their graduation from outside the State, therefore, no such divide is created at the level of the Director General Medical and Health while considering the cases of in-house candidates and giving weightage to them and thereafter recommending the name to the Director General Medical Education for counselling.”

16. We, therefore, hold that the High Court erred in deciding

that only those in service doctors who had cleared their MBBS

examination from within the State of U.P., were only entitled to

the benefit of Regulation 9(iv) of the 2000 Regulations.

17. We are also of the view that not only the High Court

transgressed its jurisdiction and went beyond the scope of the

writ petition but by the impugned order set at naught the entire

selection process only two days before the last date of admissions

making it virtually impossible to comply with the direction of the

High Court within the short period of two days.

18. In view of the above discussion, we set aside the order dated

29.05.2017 passed by the High Court and all directions issued by 16

it. We also set aside all consequential action taken by the State

of U.P. or any other authority or institution pursuant to the

directions of the High Court.

19. The State of Uttar Pradesh has filed I.A. No. 45327 of 2017

in Writ Petition (C) No.76 of 2015 praying for extension of the last

date of admission as laid down in Ashish Ranjan v. Union of India

& Ors., (2016) 11 SCC 225 for a period of one month to comply

with the directions issued by the High Court. Since we have set

aside the judgment of the High Court, there is no need to re-draw

the merit list.

20. The learned counsel for the AMU has urged that the time for

filling up the seats be extended since on account of the confusion

created by the order of the High Court a large number of seats are

still lying vacant in the AMU. Similar request has also been made

by the learned counsel for the State of Uttar Pradesh on behalf of

the Government run medical colleges/institutions. In view of the

order dated 18.01.2016 passed by this Court in Writ Petition No.

76 of 2015 and connected matters titled Ashish Ranjan v. Union

of India & Ors., (2016) 11 SCC 225, normally we would be

reluctant to extend the time. However, the present case has some 17

peculiar facts of its own. The High Court has, on a totally

erroneous basis, set aside a substantial portion of the counselling

on 29th May, 2017 which would have resulted in fresh counselling

and, therefore, some seats which could be filled up on 30 th or 31st

May, 2017 could not be filled up. That process which would have

taken only 2 days’ time, would now require a minimum of 5 or 6

days’ time because action will have to be taken afresh.

21. In view of the above discussion, we set aside the judgment

and order of the High Court and all consequential action taken by

the State of U.P. and/or any other authority pursuant to that

order. It is clarified that those who were counselled and granted

admission prior to the impugned judgement of the High Court

shall be permitted to continue in their respective courses. The

time for filling up the vacant seats, if any, in AMU, BHU and

Government run medical colleges/institutions in the State of U.P.

is extended up to 12th June, 2017 in the peculiar facts and

circumstances of the case. We further permit the AMU, BHU and

Government run medical colleges/institutions in the State to fill

up the seats in the post graduate courses in the AMU, BHU and

Government run medical colleges/institutions up to 12.06.2017. 18

All the civil appeals as well as the interlocutory

application(s) relating to the State of Uttar Pradesh in Writ

Petition (C) No. 76 of 2015 are disposed of in the aforesaid terms.

Pending application(s), if any, also stand(s) disposed of.

................................J. (ASHOK BHUSHAN)

................................J. (DEEPAK GUPTA)

New Delhi, June 07, 2017 19

ITEM NOS.1,3,4,4.1,5,6,8 & 19 COURT NO.4 SECTIONS XI,X

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal © D.No.16874/2017 (From the judgment and order dated 29.05.2017 in Writ-C No. 17183/2017 passed by the High Court of Judicature at Allahabad)

DR. SAURABH DWIVEDI AND OTHERS Petitioner(s)

VERSUS

UNION OF INDIA AND OTHERS Respondent(s)

WITH SLP(C) D. NO. 16951/2017 SLP(C) D.No. 16978 of 2017 SLP(C) D. No. 17089/2017 SLP(C) D. No. 16992/2017 SLP(C) D. No. 17146/2017 IA in Writ Petition © No. 76/2015 (relating to the State of UP) SLP(C) No. 16073/2017

Date : 07/06/2017 These petitions/IA were called on for judgment today.

For the Petitioner(s):

(Item No.1) Mr. Arun Bhardwaj, Adv. Mr. Ashish Pandey, Adv. Mr. Sumit Sharma, Adv. for Mr. Vishwa Pal Singh, AOR

(Item No.3) Mr. Abhay Kumar, Adv. Mr. Khalid Akhtar, Adv. Mr. Bilal Khan, Adv. Mr. Himanshu, Adv.

(Item No.4) Mr. Sarvesh Singh, AOR

(Item No.4.1) Mr. Maninder Singh, ASG Mr. K.V. Jagdishvaran, Adv. Mrs. G. Indira, AOR 20

(Item No.5) Mr. Salman Khurshid, Sr. Adv. Mr. Imtiaz Ahmed, Adv. Mr. Anish Dayal, Adv. Mr. Zafar Khurshid, Adv. Miss Shubhi Sharma, Adv. Miss Mithali Chauhan, Adv. for Mr. Ashok Anand, AOR

(Item No.6) Mr. Varun Singh, Adv.

(Item No.19) Mr. Shubhranshu Padhi, Adv. Mr. Kush Chaturvedi, AOR

For the Respondent(s) UOI Mr. Ajit Kr. Sinha, Sr. Adv. Mr. R.K. Rathore, Adv. Ms. Rekha Pandey, Adv. Mr. Ajay Kumar Sharma, Adv. for Mr. G.S. Makkar, AOR

for MCI/DCI Mr. Gaurav Sharma, Adv. Ms. Amandeep Kaur, Adv. Mr. Prateek Bhatia, Adv. Ms. Vara Gaur, Adv.

State of UP Mr. Ajay Kumar Mishra, AAG Mr. Ardhendumauli Kr. Prasad, Adv.

For RR No.1 in Mr. Devansh Mohta, Adv. Item No.19 Mr. Raghav Dwivedi, Adv. Ms. Rashmi Singh, Adv.

Hon'ble Mr. Justice Deepak Gupta pronounced the

judgment of the Bench comprising Hon'ble Mr. Justice Ashok

Bhushan and His Lordship.

Applications for permission to file special leave

petitions are allowed. Applications for

impleadment/intervention are also allowed.

Leave granted.

21

For the reasons recorded in the Reportable Judgment,

which is placed on the file, the impugned judgment and order

of the High Court and all consequential action taken by the

State of U.P. and/or any other authority pursuant to that

order are set aside. It is clarified that those who were

counselled and granted admission prior to the impugned

judgment of the High Court shall be permitted to continue in

their respective courses. The time for filling up the vacant

seats, if any, in AMU, BHU and Government run medical

colleges/institutions in the State of U.P. is extended up to

12th June, 2017 in the peculiar facts and circumstances of the

case. We further permit the AMU, BHU and Government run

medical colleges/institutions in the State to fill up the

seats in the post graduate courses in the AMU, BHU and

Government run medical colleges/institutions up to 12.06.2017.

All the civil appeals as well as the interlocutory

application(s) relating to the State of Uttar Pradesh in Writ

Petition(C) No. 76 of 2015 are disposed of in the aforesaid

terms. Pending application(s), if any, also stand(s) disposed

of.

(Madhu Narula) (Parveen Kumar) Court Master AR-cum-PS [copy of the judgment be given Today]