Puneet Gulati & Ors. Etc. Etc vs State Of Kerala & Ors. Etc. Etc

admission to the Super Speciality Courses

concerned. The appeals are, therefore, confined

only to Dr. Amish Kiran Bhai Mehta.

3. The constitutional validity of reservations for

local students by the State for admission to Super

Speciality Medical Courses in the State of Kerala,

commencing from the academic year 2010-2011, was

the subject matter of the writ petition before the

learned Single Judge of the Kerala High Court. The

prospectus for admissions provided that students

who had completed MBBS or Post-graduate courses

from Medical Colleges in Kerala and Doctors who had

done Rural Service in Kerala, would be given

3

preference for admission and students who were not

from Kerala would get a chance for admission only

if there were no students from the State of Kerala

available for admission in the aforesaid courses.

4. Altogether, 85 seats were available for the

Super Speciality Courses in the DM and MCH groups,

of which 19 seats were reserved for Doctors who

were in Government service and the remaining 66

seats were available for selection in the open

merit quota. After the selection process had

commenced, the prospectus was amended limiting

reservation in respect of candidates with Rural

Service in Kerala to 10% of the seats and enlarging

the scope for students of Kerala origin and

children of members of All India Service in Kerala.

Students who were from outside Kerala and had

participated in the written examination, questioned

both the original and revised terms of the

different prospectus and challenged the preferences

4

and reservation provided to the local students in

the prospectus. The learned Single Judge dismissed

their writ petitions on the ground that after

participating in the entrance examination they were

not entitled to challenge the prospectus. However,

in the writ appeals preferred by the said students,

the question as to whether it was open to the writ

petitioners to challenge the prospectus in Court,

was referred to a Full Bench, which, after holding

that the writ petitions were maintainable, remanded

the matters to the appeal court for a decision on

merits. In the appeals, the appellants prayed for

restoration of the original prospectus, which would

have the effect of restoring unlimited preference

to Doctors having performed Rural Service in

Kerala. The remaining writ appeals were filed by

the State challenging the decision of the learned

Single Judge declaring the provisions of the

original prospectus and the revised prospectus

providing for reservation for Kerala students only,

5

as unconstitutional.

5. At this stage it may be kept in mind that

challenge to the original and subsequent prospectus

was based mainly on the ground that 100%

reservation was unconstitutional as had been held

by a Constitution Bench of this Court in Saurabh

Chaudri & Ors. Vs. Union of India & Ors. [(2003) 11

SCC 146]. The Division Bench of the High Court has

extracted the relevant portion from the judgment in

Saurabh Chaudri's case, relating to reservation at

the level of Super Speciality. It was, inter alia,

held that the higher the level of speciality, the

lesser the role of reservation.

6. The Division Bench agreed with the views

expressed by the learned Single Judge, but while

technically allowing the claim of the candidates

who were from outside Kerala, on the ground that

100% reservation was unconstitutional, chose not to

give any relief to the said students on the ground

6

that the course had commenced more than 6 months

prior to the matter being heard by the Division

Bench of the High Court.

7. Mr. M.C. Dhingra, learned Advocate appearing

for the appellants, submitted that a great

injustice had been caused to the said appellants,

who were denied admission to the Super Speciality

Medical Courses in the State of Kerala on the basis

of an invalid legislation, which was ultimately

struck down by the High Court. Mr. Dhingra

submitted that most of the candidates who had been

admitted in the groups of Super Speciality Courses,

were far below the appellants in merit.

Accordingly, despite being superior in merit, the

appellants were denied admission in the aforesaid

courses on the basis of a reservation policy, which

was unconstitutional and was ultimately held to be

so. Mr. Dhingra submitted that after striking down

the reservation policy, as contained in the

7

prospectus for admission to the Super Speciality

Courses, the High Court ought to have evolved a

mechanism by which the appellants were also

admitted to the courses.

8. Ms. Liz Mathew, learned Advocate, who appeared

for the State of Kerala, attempted to support the

decision taken to admit the 10 students from the

State of Kerala to the said course, but faced with

the decision of both the learned Single Judge as

well as the Division Bench, she had no other option

but to accept the fact that the appellants had been

discriminated against. Since the State of Kerala

had not challenged the decision of the Division

Bench on the question regarding 100% reservation,

Ms. Mathew merely reiterated the views expressed by

the Division Bench that it was too late to grant

any relief to the appellants herein, as a long time

had elapsed since the commencement of the courses.

Ms. Mathew, however, stated that five seats had

8

been kept apart in the relevant courses as per the

direction of this Court for the Academic Session

2011-2012.

9. Mr. S. Gopakumaran Nair, learned Senior

Advocate, who appeared for Dr. Cecil Kunnappilly,

who was the 2nd candidate in the waiting list for

admission to the M.Ch. Genito Urinary Surgery

course, submitted that despite having been kept in

the waiting list, his client would stand to be

eliminated therefrom, if the appellant, Dr. Mehta

was to be absorbed in the said discipline for the

academic year 2011-2012.

10. Mr. V. Giri, learned Senior Advocate, and

counsel appearing for the Medical Council of India,

did not have much to add to the submissions made by

Ms. Mathew and Mr. S. Gopakumaran Nair.

11. Having considered the judgment of the learned

Single Judge and the Division Bench and the

9

submissions made on behalf of the respective

parties, we have no hesitation in upholding the

decision of the learned Single Judge and the

Division Bench as to the constitutional validity of

the first and second prospectus reserving 100% of

the seats in the said Super Speciality Courses for

students from Kerala alone, but we are also

convinced that since the appellant was not given

admission to the aforesaid course, on the strength

of an invalid policy, he deserves to be

accommodated in the aforesaid course in some way.

12. By an interim order dated 20th July, 2011, we

had stayed the admission process for the Super

Speciality Courses for the year 2011-2012 in the

Government Medical Colleges in Kerala.

Subsequently, by order dated 22nd July, 2011, we had

modified the said order on the prayer made on

behalf of the State of Kerala by directing that the

admission process could continue but 5 seats were

10

to be set apart for the petitioners, 2 seats in the

M.Ch. Genito Urinary Surgery Course, 1 seat in

M.Ch. Neuro Surgery Course and 1 seat in the DM

Cardiology Course.

13. Since, of the 5 seats reserved in terms of our

order, 2 are available in the M.Ch. Genito Urinary

Surgery Course, we direct that although the

appellant, Dr. Mehta, did not sit for the entrance

examination for the year 2011-2012, on the strength

of his marks in the entrance examination for the

year 2010-2011, he should be given admission in one

of the two seats in the M.Ch. Genito Urinary

Surgery course, which has been kept vacant in terms

of our order dated 22nd July, 2011.

14. At this stage we may also consider the

submissions which had been made by Mr. S.

Gopakumaran Nair, learned Senior Advocate, that the

candidate who was No.1 in the waiting list had

opted for a different discipline, namely, Thoracic

11

Surgery and had already been given admission in the

Trivandrum Government Medical College.

Accordingly, Mr. Nair's client, Dr. Cecil

Kunnappilly, could be considered for the second

seat which has been kept vacant in terms of our

order dated 22nd July, 2011. In the event the seat

is available, Dr. Kunnappilly may be considered for

allotment of the same, in accordance with the

rules.

15. We make it clear that this order is being

passed in the special facts of this case and should

not be treated as a precedent in future cases. The

concerned authorities will be at liberty to fill up

the other three seats, which had been kept apart,

in accordance with the Rules.

16. The appeals are disposed of accordingly. In

the facts of this case, the parties shall bear

their own costs in the appeals.

12 ............................................................J.

(ALTAMAS KABIR)

............................................................J.

(CYRIAC JOSEPH)

...............................................................J.

(SURINDER SINGH NIJJAR)

New Delhi

Dated: 17.08.2011