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PETITIONER: PRINCIPAL, MOTI LAL NEHRU MEDICAL COLLEGEAND ORS. ETC. ETC.

       Vs.

RESPONDENT: DR. VANDANA SINGH AND ORS. ETC ETC.

DATE OF JUDGMENT21/08/1990

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. SAIKIA, K.N. (J)

CITATION:  1991 AIR  792            1990 SCR  (3) 874  1990 SCC  Supl.  343     JT 1990 (3)   679  1990 SCALE  (2)359

ACT:     Education---Admission  to Professional  Colleges:  Post- graduate  course  in  Obsterics  and  Gynecology--Particular Medical  College-Filling  up all  seats  with  institutional candidates--Not   considering  external   candidates--Effect of--Directions issued.

HEADNOTE:     For the academic year 1989-90, the appellant College had 8  seats in the post-graduate course in Obsterics and  Gyne- cology. Of these, six were reserved for institutional candi- dates, and two for external candidates. The Principal filled up all the eight seats by admitting institutional candidates without considering the case of any external candidate.  One of the external candidates approached the High Court by  way of  a Writ Petition. The High Court set aside the  admission of  two .institutional candidates who were admitted  against the quota for external candidates, and directed the  Princi- pal to consider the case of the petitioner and other  exter- nal candidates who were eligible for admission to the ’open’ 25% seats on merits, in accordance with law. Aggrieved,  the Principal and the two institutional candidates whose  admis- sion  was set aside by the High Court, have preferred  these appeals, by special leave. Disposing of the appeals,     HELD 1. The appellant College, took the view that  since no  All India candidates were available on the basis  postu- lated  in  the Residency Scheme it would be  appropriate  to throw  open the entire 100% to institutional candidates.  It is not suggested that this proposal was actuated by any mala fides.  In that the State claims that this course of  action has  been  approved by the decision of the High Court  in  a case  before  it. It may be that this is not the  only  view possible and that it is also possible to take the view  that the  college should have advertised these posts  and  filled them  up  by external candidates on the basis of  merit.  If this be so, such advertisement cannot be confined to persons who are residents of U.P. as was envisaged by the  notifica- tion  dated 26th April, 1986. That notification been  issued at a time when the 875

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concept  of All-India reservation for 25% of the  seats  had not  been  adumbrated by this Court. Even if it  is  assumed that the High Court was right in saying that external candi- dates  were eligible for admission, that eligibility  cannot be  restricted  only to those who had  already  applied  but should be thrown open to all external candidates  fulfilling the qualifications. This process cannot be completed  within two weeks, as directed by the High Court. To call for appli- cations from all external candidates and select them, either on the basis of an examination or otherwise, will be a  very lengthy and time-consuming process. The State Government and the college cannot be faulted for having decided to fill  up the vacancies by offering these seats also to  institutional candidates. This is a decision taken only for a transitional period,  because,  from  1990 onwards,  admissions  will  be regulated on the basis of an All-India examination, and such an  examination is conducted by the All India  Institute  of Medical  Sciences  every year for all  medical  colleges  in India.  The decision taken by the State Government  and  the college  was  a practical one to tide  over  a  transitional difficulty  and there is no justification to upset the  same on  the  basis of a solitary application  from  an  external candidate. [881A-F]     2. On a proper interpretation of Para 5 of the Residency Scheme the eligibility for admission of institutional candi- dates is not confirmed to those who were on house jobs as on 22.8.89 but would also extend to these institutional  candi- dates  who have been in house jobs since 1.8.87. The  result of these two judgments read together will be that the entire 100% of the institutional seats should be filled up from out of  all  such applicants, subject to  their  fulfilling  any other qualifications and requirements that may be in  force. Earlier,  the admission of the six candidates to 75% of  the seats as well as the admission of the two candidates to  25% of the seats had been made by excluding institutional candi- dates who had completed their house jobs between 1.8.87  and 22.8.89.  This  will  need to be reviewed  now.  The  entire process of admission will now have to be redone in the light of  these decisions. The selection of the two  institutional candidates  in  question  will be valid only  if  they  come through successfully on merits on such reconsideration.  The High Court was right in holding that their admissions should be  set aside. The admission be redone in the light  of  the observations in these two judgments. [882B-E]      Dr. Harihar Prasad Singh & Ors. etc. v. Principal, Moti Lal  Nehru  Medical College & Ors. etc., [1990]  3  SCR  895 referred to. 876

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal  Nos.  4339- 4341 of 1990.     From the Judgment and Order dated 30.5.90 of the Allaha- bad High Court in W.P. No. 1841 of 1990.     Kapil  Sibbal, Satish Chandra, Ms. Shobha Dikshit,  R.K. Virmani and N.D. Garg for the appearing parties. The Judgment of the Court was delivered by     RANGANATHAN, J. These three petitions can be disposed of by  a  common  order. Since we have heard  counsel  at  some length we grant special leave in these petitions and proceed to dispose of the appeals.     In  the Moti Lal Nehru Medical College (M.L.N.  College) at Allahabad there are 8 seats for a post-graduate course in

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Obstetrics  and Gynecology. Of these, 6 seats  are  reserved for institutional candidates and two are reserved for exter- nal  candidates. The principal of the college has filled  up all  the 8 seats by admitting institutional  candidates  and without  considering  the cases of any  external  candidate. Among  the  institutional candidates Dr. Juhi Jain  and  Dr. Padma  Panjwani, who had obtained the highest percentage  of marks,  have  been admitted and Dr. Vandana Singh,  who  had applied  for  admission as an external  candidate,  was  not considered.  Dr.  Vandana Singh, therefore,  approached  the Allahabad  High Court, which upheld her contention and  held that the two seats in question should have been filled up in accordance  with a notification published by the State  Gov- ernment  on 26th April, 1986 (amending a previous  notifica- tion dated 15.12. 1982) which provided as follows: "In  every speciality, seventy five percent seats in a  par- ticular medical college shall be reserved for the candidates who  have passed the M.B.B.S examination from  that  college and against the remaining twenty five percent seats,  candi- dates who have passed M.B.B.S. examination from other  Medi- cal  Colleges and are bona .fide resident of Uttar  Pradesh. shall be eligible for admission on the basis of merit  along with  the candidates who have passed the M.B.B .S.  examina- tion from that very college. The  court, therefore, set aside the admission of  Dr.  Juhi Jain and 877 Dr. Padma Panjwani and directed the principal of the Medical College to consider the cases of Dr. Vandana Singh and other external candidates, who were eligible for admission to  the "open"  twenty five per cent seats on merits and in  accord- ance with law.     The Principal of the Medical College, Dr. Juhi Jain  and Dr. Padma Panjwani have preferred these appeals. It has been submitted that the High Court has overlooked that the admis- sions in question were to the second year or the post-gradu- ate degree course and were being considered under the  terms of  a  residency scheme dated 22.8.89. As per the  terms  of this  scheme,  25%  of the seats in the  course  (here,  two seats) were to be filled in by candidates on the basis of an examination conducted by the All India Institute of  Medical Sciences. However, no such examination had been conducted by All  India Institute and the college instead of leaving  the seats vacant, decided to fill them up by internal candidates on  the basis of merit. In doing this, the principal of  the college  was  only complying with the terms  of  a  decision rendered by the Allahabad High Court in the case of Dr. R.P. Pandey,  (Writ  Petition No. 8181 of 1989) and  a  precedent approved  by  the Directorate General  of  Health  Services, Medical Examination Cell, Nirman Bhavan, New Delhi, which in a  letter  to the principal of an Agra  College,  had,  when unable to recommend candidates on the basis of an  All-India examination for a particular course released these seats  in favour  of  internal candidates. It has  been  submitted  on behalf of Dr. Juhi Jain that, even assuming that the  appli- cation  of Dr. Vandana Singh had to be considered, the  High Court  should have restricted itself to quashing the  admis- sion to one of the two seats and upheld the admission of Dr. Juhi  Jain,  who  had secured higher marks  than  Dr.  Padma Panjwani.  It is submitted on behalf of Dr.  Padma  Panjwani that  even  assuming that Dr.  Vandana  Singh’s  application merited consideration, the interests of all the three candi- dates  could  have been safeguarded by directing  the  State Government to create one additional seat and accommodate all the three candidates. Reliance is placed in this respect  on

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certain  observations made by this Court in the case of  one Mridula  Avasthi, [1988] 3 S.C.R. 762. Finally, it has  also been submitted, on behalf of the appellants, that Dr. Vanda- na Singh was not eligible for admission even on the terms of the notification dated 26.4.86 since she was not a bona fide resident of Uttar Pradesh. It is stated that she had  passed her  M.B.B.S.  examination from the State of Bihar  and  had also  taken admission in a post Graduate Diploma  Course  in Gynecology  and  Obstetrics at  Darbhanga  Medical  College, Laneriasarai, Bihar, a fact which she had concealed from her writ petition. 878     We  have today passed a detailed judgment in  regard  to certain admissions made pending implementation of the  resi- dency scheme introduced by the State of U.P. in our judgment in a batch of appeals preferred by Dr. Harihar Prasad  Singh &  Ors. as well as the State of Uttar Pradesh, [1990] 3  SCR 895 (Civil Appeal, Nos. and, for reasons that will be appar- ent later, the judgment in the present appeals will have  to be  read along with the judgment in the said appeals  for  a full  and proper understanding of the issues involved.  That other decision ’turned on the interpretation of paragraph  5 of the residency scheme and also pertained to admissions  to the  second  year of the post graduate  degree  course.  The scheme contained a transitory provision in para 5 in respect of certain persons who were house officers between 1987  and 1989.  the  related batch of appeals  raised  a  controversy pertaining  to  75% of the seats in the second year  of  the post-graduate courses which were reserved for  institutional candidates.  Here  the  question arises in  respect  of  the remaining  25% of the seats reserved for  "external"  candi- dates.  To understand the point at issue, we  shall  briefly touch  upon those aspects of the residency scheme  which  we had no occasion to consider in the batches of appeals  above referred to but which are material for the purposes of these appeals.     By  the notification dated 22.8.89 a scheme  called  the residency  scheme was introduced, which dealt,  inter  alia, with the question of admission to post graduate specialities in  medicinal courses. These cases, like the other  batches, have  proceeded on the assumption that, so far  as  institu- tional  candidates are concerned, admissions to the  second- year of a degree course could be granted to persons like Dr. Juhi  Jain  and  Dr. Padma Panjwani who  had  completed  the M.B.B.S. degree examination, done one year of internship and had  been working as house officers in the State of U.P.  on 22.8.89.  There was a further controversy in those cases  as to whether even persons who had been working as house  offi- cers since 1.8.1987 would be eligible for admission to  this course  and  we have, by our judgment in the  connected  ap- peals,  answered  this  question in  the  affirmative.  That question would become relevant here only if we do not  agree with the view taken by the High Court here. We shall, there- fore,  keep  that issue aside for the time being  and  shall deal with it later.     To  continue  the  narration regarding  the  scheme,  it provided  for  admission, to the three  year  post  graduate course,  of candidates who had passed the M.B.B.S.  examina- tion  and completed one year’s internship. Seventy five  per cent of the admission to these courses was 879 to be available to institutional candidates on the basis  of an entrance examination; the balance of twenty five per cent of  the  seats was to be filled up on the basis of  an  all- India entrance examination. This provision was in tune  with

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certain directions given by this Court from time to time for regulating admission to medical colleges in various parts of the  country.  This Court had in  particular  directed  that while 75% seats in each medical college all over the country could be filled in by local or institutional candidates, the balance  of 25% should be filled up on an all  India  basis. Elaborate directions were also given by this Court to enable the  All India Medical Institute (A.I.I.M.S.) to  conduct  a competitive  test  for selecting the  candidates  for  these seats  reserved on an all India basis. The scheme  obviously referred  to the all-India competitive entrance  examination to be conducted by the A.I.I.M.S. every year. Indeed such an examination had been held by he A.I.I.M.S. in January-Febru- ary 1989 and the candidates recommended had been taken  into the  medical  colleges in U.P. as per the  regulations  then existing.  However, since the new scheme came into being  in the middle of the year, there was no possibility of either a local  entrance  examination nor  an  all-India  examination being  held  to regulate the admissions to the  new  course. C1.3(f)  however provided that, for the 75  %  institutional seats,  competitive entrance examination shall  be  enforced from  the  fresh batch and that before its  enforcement  the admission to institutional seats in residency shall be  done on  the basis of the merit of the M.B.B.S.  examination.  It was, however, silent in regard to the balance 25% seats. The question  arose,  therefore, as to what was to  be  done  in respect  of the remaining 25% seats. To meet the  situation, the  Direction  of Medical Education issued  directions,  on 3.10.89, to the following effect: "Since there will be no admission of external students  this year against 25 % open seats, therefore, after merging these open  seats  with  75% additional seats,  the  admission  of students of 1982 supplementary batch and 1983 regular  batch should be done against the entire 100% seats by making their combined merit." Accordingly, it seems admissions to 100% seats in the  first year of the three-year post-graduate scheme was thrown  open fully  to internal candidates, the admissions being  decided on the basis of their merit in the M.B.B.S. examination.  We are, however, not concerned with that issue here. We are here concerned with admissions to the second year  of the 880 residency scheme. The scheme made a provision in the  second sub-para of para 5 for the adjustment of ’persons serving in U.P.  as house officers by absorbing them into  the  second- year of the residency scheme. The provision has been set out and  its implications discussed elaborately in our  judgment in  the allied batches of appeals and need not  be  repeated here.  It is not quite clear whether the second sub-para  of para 5 of the scheme covers all the seats in the second year of the course or only 75% thereof. However, it is apparently understood only as pertaining to the 75% seats reserved  for institutional  candidates and, as there was no other  provi- sion  in regard to the balance of 25% of the seats,  it  was decided  that those seats should also be filled in  only  by institutional  candidates.  However, in  the  meanwhile,  an advertisement  had  been issued by the Principal  of  M.L.N. Medical  College, Allahabad on 21.9.89.  This  advertisement pertained only to the filling up of the seats comprising the 75%  reserved  for institutional candidates.  There  was  no advertisement  regarding the rest Dr. Vandana Singh  applied for  admission to the second year of the degree  course.  In this  state of affairs it is perhaps possible to dispose  of the matter before us by holding that the application of  Dr.

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Vandana Singh can only be treated as one in response to  the advertisement of 21st September, 1989 and so could not  have been  entertained as she was not an institutional  candidate and  that  she  has no locus standi, on the  basis  of  that application,  to challenge the admission of  other  institu- tional  candidates.  It is also possible  to  interpret  the second  sub-para  of para 5 of the scheme  as  covering  the entirety of the seats for the second year of the course  and not  merely 75% of them. In this view also, the  application of Dr. Vandana Singh would have to be rejected.     It could, however, be argued that as the High Court  has proceeded on the footing that para 5 pertains only to 75% of the  seats, quite irrespective of the basis of her  applica- tion, Dr. Vandana Singh has a right to insist that under the scheme 25% of the seats should be thrown open for all  India competition  and  that the admissions based on  a  different basis  were rightly quashed. If we assume this postulate  to be correct and go strictly by the terms of the notification, admissions  should be on the basis of an all-India  examina- tion.  There was, however, no immediate possibility  of  any such examination being held for admission to the course  for 1989-90.  In this state of affairs, one possible view  which the  High Court has taken is that these seats must  be  kept reserved  for external candidates and the college  must  now take steps to invite external candidates--in accordance with the  terms  contained in the notification dated  26.4.86  if that  notification  were applicable-and select them  in  the order of merit. The college, however, 881 took the view that since no all India candidates were avail- able  on  the basis postulated in the scheme,  it  would  be appropriate  to throw open the entire 100% to  institutional candidates.  It  is  not suggested that  this  proposal  was actuated  by any mala fides. In fact the State  claims  that this  course of action has been approved by the decision  of the  High  Court in the case of Dr. R.P. Pandey. It  may  be that this is not the only view possible and that it is  also possible  to  take  the view that the  college  should  have advertised these posts and filled them up by external candi- dates on the basis of merit. If this be so, such  advertise- ment  cannot  be continued to persons who are  residents  of U.P. as was envisaged by the notification dated 26th  April, 1986.  That notification had been issued at a time when  the concept  of all-India reservation for 25% Of the  seats  had not  been adumbrated by this Court. Even if we  assume  that the High Court was right in saying that external  candidates were  eligible  for admission, that  eligibility  cannot  be restricted  only to those who had  already  applied--indeed, Dr. Vandana Singh appears to have been the only one who  had applied  to the course in the M.L.N. College--but should  be thrown open to all external candidates fulfilling the quali- fications.  This  process  cannot be  completed  within  two weeks,  as directed by the High Court. To call for  applica- tion from all external candidates and select them, either on the  basis  of an examination or otherwise, will be  a  very lengthy  and  time-consuming process. In  our  opinion,  the State  Government  and  the college cannot  be  faulted  for having  decided to fill up the vacancies by  offering  these seats  also to institutional candidates. This is a  decision taken  only  for a transitional period, because,  from  1990 onwards,  admissions  will be regulated on the basis  of  an all-India examination, and such an examination is  conducted by  All India Institute of Medical Sciences every  year  for all medical colleges in India. In our opinion, the  decision taken by the State Government and the college was a  practi-

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cal one to tide over a transitional difficulty and there  is no  justification to upset the same on the basis of a  soli- tary application from an external candidate.     For the reasons stated above, we are of the opinion that the High Court erred in quashing the admissions made on  the grounds given by it, We uphold the rejection of Dr.  Vandana Singh’s  application.  In the view we have taken it  is  not necessary to express any opinion as to whether, even on  the basis  of the notification dated 26.4.86, Dr. Vandana  Singh is eligible for consideration for admission to the course or she  disqualified  from such consideration for  the  reasons urged  on behalf of the State, Dr. Juhi Jain and  Dr.  Padma Panjwani. 882     For the reasons mentioned above, we set aside the  order of  the  High  Court and hold that the  application  of  Dr. Vandana  Singh  was  rightly rejected  by  the  college.  We should,  however, like to point out that, in  the  connected batch of appeals, we have upheld that interpretation by  the High Court of Para 5 of the scheme and held that the  eligi- bility  for  admission of institutional  candidates  is  not confined  to those who were on house jobs as on 22.8.89  but would also extend to those institutional candidates who have been  in  house jobs since 1.8.87. The result of  these  two judgments read together will be that the entire 100% of  the institutional seats should be filled up from out of all such applicants, subject to their fulfilling any other qualifica- tions  and requirements that may be in force.  Earlier,  the admission of the six candidates to 75% of the seats as  well as  of  Dr. Juhi Jain and Dr. Padma Panjwani to 25%  of  the seats  had been made by excluding  institutional  candidates who  had  completed  their house  jobs  between  1.8.87  and 22.8.89.  This  will  need to be reviewed  now.  The  entire process of admission will now have to be redone in the light of these decisions. The selections of Dr. Juhi Jain and  Dr. Padma  Panjwani  will  be valid only if  they  come  through successfully  on  merits on such reconsideration.  We  have, therefore, to agree with the High Court that the  admissions of  Dr. Juhi Jain and Dr. Padma Panjwani should also be  set aside but direct that the admissions be redone in the  light of  our observations in these two judgments.  These  appeals are  disposed of accordingly. We, however, make no order  as to costs. G.N.                                   Appeals disposed of 883