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PETITIONER: MRIDULA AVASTHI & ORS. ETC.

       Vs.

RESPONDENT: UNIVERSITY OF DELHI & ORS.

DATE OF JUDGMENT27/04/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1988 SCR  (3) 762        1988 SCC  (2) 572  JT 1988 (2)   220        1988 SCALE  (1)813

ACT:      Professional  Colleges-Medical  Colleges-Post  Graduate Medical courses Admission to-Delhi University adopting three year P.G. degree and two year diploma courses from 1988-As a transitory  measure   old  system  continued  for  the  1988 academic session  only-Candidates with one year housemanship made ineligible-Common  selection list  for both seniors and freshers-Validity of-Directions issued.

HEADNOTE:      Pursuant to  the directions of the Supreme Court in Dr. Dinesh  Kumar   &  Ors  v.  Motilal  Nehru  Medical  College Allahabad, &  Ors. [1987]  4 SCC 459 regarding uniformity in post-graduate  medical   education,  respondent   No.  1-the University of Delhi, decided to adopt the three years course for the  post-graduate degree and a two years course for the diploma commencing from the academic session of 1988.      However,  with   a  view   to  mitigating  hardship  to candidates/students who  had already completed the house job and had  become entitled to undergo the post-graduate course in two  years, as  a transitory  provision, the  respondent- University decided to continue the practice prevailing prior to 1988  for a  year. It  evolved a  scheme whereunder,  the number of  seats for  the post-graduate  course and  diploma course available  in the previous year for a student who had completed one  year’s housemanship were left untouched. As a transitional provision,  the University  agreed to  fix  75% quota, for  the 1988  session only.  As per  a Note  in  the scheme, candidates  who had  done house job/Junior Residency for period  of one year were not eligible for admission to 3 years post-graduate degree and 2 years post-graduate diploma course.      The  prospectus,   however,   prescribed   one   common selection test for both the categories.      A set  of writ  petitions were  filed before  the  High Court challenging the scheme of the University mainly on the basis that  when there  was one selection test, merit should prevail and  classification in  the manner  indicated by the scheme was bad. The High Court made an interim 763 order  requiring   the  University  to  have  the  selection completed on  the basis  of merit  adjudged  in  the  common

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selection test.      Disposing  of   the  Writ   Petitions  and  some  cases transferred from the High Court, ^      HELD: The  seniors who  have already  done  one  year’s housemanship and  freshers  belong  to  two  categories  and cannot be  said  to  be  equal.  The  question  of  test  of comparative merit  would not  have arisen  if the University had not  prescribed a  common selection  test for  these two categories. If  the merit  list of  the  selection  test  is followed, more  seniors are  entitled to  admission and  the scheme of reservation would not work. [765F-G]      While selection  in the  higher course should be on the basis of  merit in  the peculiar  facts and circumstances of this case,  purely confined  to a  transitory  measure,  the situation has to be handled not by first principles but by a somewhat informed  pragmatic adhocism especially because the situation would not reoccur. [766D]      The impasse  created on  account  of  rival  claims  by freshers and seniors has to have a rough and ready solution- yet not  arbitrary  and  as  acceptable  and  satisfying  as possible. [766F]      With a  view to  providing some more seats for seniors, the respondent  University should  create one  seat in every speciality. Thus, 21 additional seats will be available over and above  the seats  fixed by  the University  representing 75%. From  the reserved  seats made  for  the  freshers,  21 seats, being one from every speciality, should be taken away and made  available to  the seniors.  Thus, 42  seats in all will be  available for  the  seniors  in  the  Post-Graduate course to  be filled  up on  the basis  of inter  se  merit, keeping the senior group apart. [766G-H; 767A-B]      The  Central   Government  should  make  the  necessary provisions for funds. The Indian Medical Council may provide the necessary  accommodation by  relaxing the  requirements. [767D]      Dr. Dinesh  Kumar v. Motilal Nehru College, Allahabad & Ors., [1987] 4 SCC 459, referred to.

JUDGMENT:      CIVIL ORIGINAL  JURISDICTION: Writ Petition (Civil) NO. 194 of 1988. etc etc. 764      (Under Article 32 of the Constitution of India).      D.D. Thakur, T.S. Krishnamurthi Iyer, Rajesh Mitra, Ms. Santosh Kalra,  H.K. Puri, R.L. Roshan, S.S. Sabharwal, S.K. Sabharwal, and M.K.D. Namboodiri for the Petitioners.      P.P. Rao,  S.N. Kacker,  G. Rath,  Mrs. A.  Mathur,  A. Mariarputham, C.M.  Nayyar, D.S.  Narula,  Kailash  Vasudev, Mrs. Uma Jain and P.K. Mehta for the Respondents.      The following Order of the Court was delivered:                          O R D E R      The  writ   application  under   Article  32   and  the transferred writ  petitions from the Delhi High Court relate to selection  of  medical  graduates  for  undertaking  post graduate study for the year 1988 under the Delhi University. In Dr.  Dinesh Kumar  v. Motilal  Nehru College, Allahabad & Ors.,  this   Court  emphasised  the  desirability  of  post graduate education in the Medical Faculty as far as possible to have  uniformity throughout  the country.  It, therefore, commended to the educational institutions which followed the system of  one year  house job  followed by two years’ post- graduate course  to switch  over to  the pattern  of a three

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year post-graduate  course with house job in the first year. On September  25, 1987,  in the  very same  matter, when the Court made  an order  reported in  1987 4  SCC 459,  it  was pointed out  that in some States the post graduate course is for a  term of two years with one year housemanship while in the other  States it  is a  full term  of three  years. This Court, therefore,  directed with  a view  to bringing  about uniformity on  the basis  of the  principle accepted  in the earlier decision  that for  admission beginning  from  1993, there would  be only  one  pattern,  namely,  a  three  year integrated course  without any  separate  housemanship.  The University of  Delhi decided  to adopt the three year course for the  post-graduate degree  and a two year course for the diploma commencing from the academic Session of 1988. With a view to  mitigating hardship  to candidates/students who had already completed  the house  job and had become entitled to undergo  the   postgraduate  course   in  two  years,  as  a transitory provision, the University decided to continue the practice prevailing prior to 1988 for a year. The University evolved a  scheme where  under the  number of  seats for the post-graduate course  and diploma  course available  in  the previous year  for a  student who  had completed  one year’s housemanship were  left untouched.  The number of such seats are 198 for the degree course 765 and 111  for the  diploma course.  Out of  these  25%  being placed at  the disposal  of the  Government of  India to  be filled-up on  all India  selection basis,  the exact  number available to  be filled-up  by the  University worked out to 149  and   84  respectively.  As  a  transitional  provision intended for  the 1988 Session only the University agreed to fix 75%  quota (representing  139 seats  in  the  three-year degree course  and 66 seats in the two-year diploma course). The following was specified a part of the Scheme:           "Important Note                Candidates who  have  done  house  job/junior           Residency  for  a  period  of  one  year  are  not           eligible for  admission to  3 years  Post-Graduate           Degree and 2 years PostGraduate Diploma Course." The prospectus,  however, prescribed  one  common  selection test.      A set  of writ  petitions were  filed before  the Delhi High Court  challenging the  scheme of the University mainly on the  basis that  when there was one selection test, merit should prevail and classification in the manner indicated by the scheme  was bad.  Reliance was  placed before  the  High Court on  observations of  this Court that for post graduate degree the  test of  excellence should prevail and the level of high  proficiency should  be maintained.  The High  Court made an  interim order  requiring the University to have the selection completed  on the  basis of  merit adjudged in the common selection test.      This is  a dispute  essentially between  the University and the  freshers who have not done housemanship on one side and the  seniors who have already completed housemanship for one year  on the  other. There  can be  no dispute  that the seniors and  the freshers  belong to two separate categories and cannot  be said  to be equals. If the University had not prescribed a common selection test for these two categories, the question  of test  of comparative  merit would  not have arisen. If  that had  not been  done perhaps  the High Court would not  have made  its direction and the difficulty which has arisen would not have cropped up.      The classification  of  freshers  and  those  who  have completed a  year’s housemanship,  though a perceptible one,

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loses its  importance in  view of  the traditional situation that in the system prevailing prior to 766 1987,  both   the  groups  were  treated  as  qualified  for appearing at  the selection test for post graduate study. We are told by learned members at the Bar that after transitory Note extracted  above disappears in the coming year, the old practice  shall   again  revive.   This  is  an  unfortunate situation. There  being no  limit to  participation  in  the selection test for post-graduate study candidates who become unsuccessful year  after year,  in the absence of any limit, keep on  taking chances.  This certainly  is not a desirable feature  and  should  be  looked  into  by  the  appropriate authorities quickly.      If the  merit list  of  the  selection  examination  is followed, more  of seniors are entitled to admission and the scheme of  reservation would  not work.  As we  have already pointed out  in the  name of  what counsel calls convenience (and how  inconvenient it  was  is  not  known),  the  Delhi University made  an  initial  mistake  of  having  a  common selection test  for two  categories of  candidates. While we reiterate the  view expressed by this Court on more than one occasion that  selection in  the higher courses should be on the basis  of merit, in the peculiar facts and circumstances arising  in  this  case  purely  confined  to  a  transitory measure, the  situation has  to  be  handled  not  by  first principles but  by a  somewhat informed  pragmatic adhocism. This has  to be  so because the situation would not reoccur. Again the  initial  mistake  of  the  Delhi  University  had brought some  amount of  confusion and  it  has  mounted  up following the  intervention by  the  High  Court.  The  time available is too short as under the Scheme intended to apply to the  whole country  the course has to begin on the 2nd of May, 1988.      In this  background we are of the view that the impasse created on  account of  the rival  claims  advanced  by  the freshers and  the seniors  has to  have a  rough  and  ready solution-yet not  arbitrary and as acceptable and satisfying as  possible.  We  find  that  the  two-year  degree  course speciality-wise has  149 seats  while the  three-year degree course  has  139  seats.  For  convenience  we  extract  the particulars made  available at  page 4  of the  Bulletine of Information. It  may be  pointed out  that  there  are  1003 candidates  as  against  total  270  vacancies  (degree  and diploma courses together) for the seniors; and there are 331 candidates as  against 205 vacancies for the two courses for the freshers.  With a  view to providing some more seats for seniors we suggested to Mr. Rao appearing for the University that the  number of  seats may  be increased  and he  has on instructions agreed,  provided the  Union of  India provides funds and  the Medical  Council agrees to accommodate. There are 21  specialities as  indicated above. We direct that the University shall  create one  seat in  every speciality  and thus 21 additional seats will 767 be available  over and  above the  149 seats  fixed  by  the University representing  the 75%  quota.  To  this  enhanced number of  seats the  25% reservation of All India Selection shall not  apply. From  the  reserved  seats  made  for  the freshers, 21  seats being one from every speciality shall be taken away  and made available to the seniors. Thus 42 seats in all  will be  available for  the  seniors  in  the  Post- Graduate course  to be  filled up  on the  basis of inter se merit keeping the senior group apart.      The creation  of the  21 seats  will involve additional

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funds to  be provided  by the  Union of  India. It will also require approval  of the  Medical Council of India and there will perhaps  also be necessity for permitting the variation of guide-student  ratio. Since  it is for one year and there would be  no scope  for recurrence  and this  has arisen  in peculiar  circumstances   explained  above,  we  direct  the Government of  India to  take our order made without hearing it with  a sense  of understanding  and make  the  necessary provisions. We also suggest to the Indian Medical Council to provide  the   necessary  accommodation   by  relaxing   the requirements. These  may be  done quickly  so that  the time schedule may not be affected. N.P.V.                           Petitions disposed of. 768