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PETITIONER: DR. JEEVAK ALMAST

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT12/08/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH VENKATACHALLIAH, M.N. (J)

CITATION:  1988 AIR 1812            1988 SCR  Supl. (2) 385  1988 SCC  (4)  27        JT 1988 (3)   340  1988 SCALE  (2)215  CITATOR INFO :  D          1992 SC 932  (13)

ACT:     Professional   Colleges-Admission  to:   Post   Graduate Medical  Course- All India Entrance Examination-  A.I.I.M.S. Bulletin  of Information clauses 11 and  l5(g)-Validity  of- Unfilled seats-Directions issued by Court.    Constitution  of  India,  1950_  Article  l4-   Judicial determination  not to be tested on the touch stone  of  this provision.

HEADNOTE:     In compliance with the decision of the Supreme Court  in Dr. Pradeep Jain etc. v. Union of India B Ors. etc.,  [1984] 3  SCR  942 and on the basis of the scheme approved  by  the Court,   respondent  No.  2  held  an  All  India   Entrance Examination  for filling up 25 per cent seats  in  different Post  Graduate  Medical  Colleges in the  States  and  Union Territories and those run by public authorities. The  scheme provided that cut off base should be 50 per cent marks.  Out of about 2100 seats, only 500 could be filled.     In  the  Writ  Petition filed  before  this  Court,  the petitioner,  an  unsuccessful  candidate  at  the  aforesaid examination sought (1) a direction that clauses 11 and 15(g) of the Bulletin of Information, published by respondent  No. 2   in  this  regard  were  illegal,  unconstitutional   and incompetent,  (2) a writ of certiorari to quash the list  of successful  candidates  for admission  within  25%  reserved quota,  and  (3) a writ of mandamus to  the  respondents  to admit  the petitioner and similarly placed other  candidates against  the  1500 odd seats left out due to  the  arbitrary decision/action of the respondents, contending that no  seat should go unfilled.     Disposing  of  the Writ Petition and a  pending  CMP  in other disposed of Writ Petitions,     HELD: 1.1 It is well-settled that judicial determination is  not to be tested by the touchstone of Article 14 of  the Constitution. [388B]     In the instant case since the bulletin is in  accordance with the scheme approved by this Court, and the  examination                                                   PG NO 385

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                                                 PG NO 386 has been held following the terms thereof, the petitioner is not entitled to ask for quashing a part of the bulletin  and the  list  of  selected  candidates.  There  is  no  tenable challenge against the examination. [387H, 388A]     1.2  Since  in the very first year of  implementing  the scheme,  a stalemate has arisen, it is appropriate  to  give certain   directions,   which   may   in   the   facts   and circumstances,  be  appropriate  and adequate  to  meet  the situation  to  the  extent possible.  Sufficient  number  of qualified  doctors  are not available.  Every  step  should, therefore,  be taken to turn out as many doctors  with  Post Graduate  qualification as possible. Since about 1600  seats have  reverted  to the States and medical  colleges  located within them, and have to be filled up, it is in the interest of  the  parties  that this should be  done  as  quickly  as possible so that the academic time-schedule may be stuck to. [388B-C, F, 389D]     1.3 Respondent No. 2 is directed to supply to each State and/or Union Territory from where candidates had appeared at the  entrance test, candidate-wise particulars  confined  to such  State.  Once  these  particulars  are  available,  the Selection  Committee  operating in the  State  and/or  Union Territory  or in the respective medical colleges covered  by the scheme, as the case may be, shall draw up a list of  the remaining candidates seeking admission as against the 75 per cent  of the seats and the candidates who had taken the  All India  Entrance examination, but have not been found fit  on the basis of the marks secured in their respective selection tests  or at the MBBS examination, in States where there  is no  such  selection test relating 75 per  cent  seats.  This shall  be  on  the  footing that  marks  in  the  respective selection  tests or the test and the examination are at  par and admission would be on the basis of merit. No doubt,  the All  India  Selection test had been a stricter one,  but  it would  not  be possible for this Court now  to  direct  what weightage is to be added on that score. Once the common list is  drawn  up  on the basis  of  performance,  admission  to remaining seats can be taken up. [389F-G]     [The  admissions already effected inclusive of seats  in the reserved quota shall continue. But further admissions in respect  of unfilled seats as against the 25 per cent  quota shall  be deferred now and again taken up after the list  of eligible candidates is drawn up as per the time schedule now indicated.] [389H, 390B]     Dr.  Pradeep  Jain etc. v. Union of India &  Ors.  etc., [1984] 3 SCR 942, referred to.                                                   PG NO 387

JUDGMENT:    ORlGINAL JURISDICTION: Writ Petition No. 467 of 1988.     (Under Article 32 of the Constitution of India.)     D.N.  Dwivedi,  B.D.  Aggarwala,  O.P.  Khadaria,  Sarva Mitter,  Bagga,  Mrs. S.K. Bagga, R.P.  Srivastava,  Ms.  A. Subhashini,  R.K. Mehta, Ms. Sushma Manchanda and Ms.  Suman Rastogi for the appearing parties.     The following Order of the Court was delivered:                            ORDER     This  petition  under  Article 32  of  the  Constitution arises  out  of implementation of the decision  rendered  by this Court in Dr. Pradeep Jain’s case [1984] 3 SCR 942.     The   petitioner  is  an  unsuccessful   candidate   for admission  to  the Post Graduate Medical Course in  the  All

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lndia  Entrance Examination held by the All India  institute of  Medical Sciences, respondent No. 2. In this  application he has asked for a declaration that clauses 11 and 15(g)  of the Bulletin of Information published by respondent No. 2 in regard  to  th Post Graduate Medical  courses  are  illegal, unconstitutional  and incompetent. He has also asked  for  a writ   of  certiorari  to  quash  the  list  of   successful candidates  for  admission  in  the  Post  Graduate  Medical colleges  within  the 25 per cent reserved quota and  for  a writ of mandamus to the respondents to admit the  petitioner and  similarly placed other candidates against the 1500  and odd  seats left out due to the arbitrary decision/action  of the  respondents.  In Dr. Pradeep Jain’s case  (supra)  this Court decided that admission to 25 per cent of the seats  in the  different Post Graduate courses in he medical  colleges located  in the States and Union Territories as  also  those run  by  public authorities should be filled up  by  an  All India  Entrance  examination. Under the  Court’s  directions made from time to time, a scheme was evolved by the Union of India  in coordination with the Indian Medical  Council  and the    State   Governments,   universities    and    medical institutions.  This Court approved the scheme  and  directed that  the same should be implemented from the Academic  year 1988-89 by holding an All India Entrance Examination by  the respondent  No. 2. The scheme contained the  provision  that cut-off  base  for selection for admission shall be  50  per cent marks. The bulletin prepared by the respondent No. 2 is on  the  basis  of  the scheme. Since  the  bulletin  is  in accordance  with the scheme approved by this Court, and  the                                                   PG NO 388 examination  has been held following the terms  thereof  the petitioner is not entitled to the first two reliefs  claimed by  him,  namely,  quashing of a part of  the  bulletin  and quashing  of the list of selected candidates. We would  like to make it clear that there is no tenable challenge  against the   examination.   It  is   well-settled   that   judicial determination  is  not to be tested by the  touch  stone  of Article 14 of the Constitution.     Since the matter has come before this Court and from the facts  disclosed  in the petition we find that in  the  very first  year  of  implementing the scheme,  a  stalemate  has arisen,  we think it appropriate to give certain  directions which  may, in the facts and circumstances,  be  appropriate and adequate to meet the situation to the extent possible.     We  gather that 25 per cent reservation as envisaged  by the  scheme  would mean about 2050 to 2100 seats  and  these were  intended to be filled up by the selection tests to  be conducted  by  the respondent No. 2. It is said  that  about 30,000  candidates  appeared at the selection test  but  the respondent  No. 2 found only 500 students fit,  strictly  in terms  of the scheme, for being admitted as against  the  25 per  cent reservation. As a result of this about 1600  seats could not be filled up in terms of the scheme.     The  question for consideration is as to  whether  these unfilled  seats should revert back to the respective  States and/or  institutions or what other method should be  adopted to fill up the vacancies. It has been contended on behalf of the petitioner, and there is total unanimity amongst all the parties  that no seat should go unfilled. It  is  well-known that  our  country  does  not  have  sufficient  number   of qualified doctors and every step should, therefore, be taken to turn out as many doctors with Post Graduate qualification as possible. The problem to be resolved, therefore, is as to what  method  should be adopted to fill  up  these  unfilled reserved seats.

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   We  had given a direction to the Union of India to  find out the exact position in regard to the reserved seats.  Mr. Dwivedi  for the respondent No. 1 has not been able to  give us complete details and has placed a statement in regard  to the  few  States and institutions. At the Bar  it  has  been stated  that  the total number of seats in  regard  to  this disclosure  may not exceed 300. We do not think  any  useful purpose  would  be served by further adjourning  the  matter particularly when respondent No. 1 wants a few more weeks to collect  the same. We cannot lose sight of the fact  that  a tight frame of time has been fixed by the previous order  of                                                   PG NO 389 this  Court in regard to admission as also  commencement  of studies.  We  have not the least intention to  disturb  that schedule.     It is appropriate at this stage to take note of the fact that one of the medical colleges of Uttar Pradesh moved this Court  in the month of May, 1988, for a direction  that  the remainder of the seats from out of the 25 per cent  reserved quota  should revert back to the college to be filled up  by candidates who had applied for the remaining 75 per cent  of the  seats  and had not got admission. Mr. Dwivedi  for  the Union  of  India has informed us that there  has  been  some confusion  as  that direction has been construed  to  be  of general  application  by  some and in  the  case  of  others instructions  have been issued to move this Court to  obtain similar orders.     Now  that about 1600 seats have reverted to  the  States and  the medical colleges located within them,  these  seats have  got  to  be filled up. It is in the  interest  of  the parties that the same should be done as quickly as  possible so  that the academic time-schedule may be stuck to. We  are of the view that it would be in the interest of everyone  if the  respondent  No. 2 is directed to supply to  each  State and/or Union Territory from where candidates had appeared at the  entrance test, candidate-wise particulars  confined  to such  State within 10 days from now. Once these  particulars are available the Selection Committee operating in the State and/or Union Territory or in the respective medical colleges covered  by the scheme, as the case may be, shall draw up  a list  of  the  remaining  candidates  seeking  admission  as against the 75 per cent of the seats and the candidates  who had  taken the All lndia Entrance examination but  have  not been  found fit on the basis of the marks secured  in  their respective  selection tests and in the event of there  being no selection test in the States relating to the 75 per  cent quota  then  at the MBBS examination. This shall be  on  the footing  that the marks in the respective tests or the  test and the examination are at par and admission would be on the basis  of  merit.  There  is no doubt  that  the  All  India Selection test had been a stricter one. Now it would not  be possible  for us to direct what weightage is to be added  on that score. Once the common list is drawn up on the basis of performance,  admission to the remaining seats in  the  Post Graduate courses can be taken up.     We make it clear that by our Order we do not propose  to vacate the admissions already effected up to today, that is, 12th  August, 1988 inclusive in respect of the seats in  the reserved  quota.  The colleges will be closed for  the  next                                                   PG NO 390 three   days   being  Second  Saturday,   Sunday   and   the Independence  Day and the possibility of  further  admission can  only be on the 16th of August, 1988. Further  admission in  respect  of unfilled seats as against the  25  per  cent quota shall be deferred till the list of eligible candidates

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on  the  basis of what has been stated above  is  drawn  up. Since we have allowed ten days’ time to the respondent No. 2 to supply the particulars, seven more days shall be  allowed thereafter   to   the  institutions  including   the   State Government to finalise the lists and send out intimations to candidates  quickly. In these circumstances  admissions  may again be taken up three weeks after for the remaining  seats and  may be kept open for ten days. The Director General  of Health  Services will communicate this part of the order  to every  medical  college subject to the scheme  as  also  the Governments  telegraphically  today. A copy  of  this  order shall  be  made  available  to  Mr.  Dwivedi  forthwith.  We reiterate  that we have no intention to interfere  with  the scheme which has been approved except to the extent that the dates  of admission and commencement of classes may have  to be varied to give effect to the present order.     We  must  take note of the situation  that  the  concern which was shown by this Court while reserving 25 per cent of the  total number of seats to be filled up on the  basis  of the All India Entrance examination has not been  effectuated on  account  of only 500 students having been  selected.  We hope  and trust that such a situation would not recur and  a more practical view shall be taken by those who are incharge of  the  matter. We are cognizant of the position  that  our direction  might give dis-satisfaction to  some  candidates, but  in the back-drop and the present situation  perhaps  no other arrangement more equitable than what we have indicated could  be done. At any rate we declare that this is a  final order  and no application for varying or modifying the  same would be entertained by the Registry.     The  writ petition is disposed of with these  directions but without costs.     C.M.P. No. 19754 of 1988 is a miscellaneous  application in  Writ  Petition Nos. 348 to 352 of 1985 which  have  long been disposed of. The directions which we have given in  the writ petition shall operate to the extent applicable to  the facts of the case. N.P.V.                                Petitions disposed of.