REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7037-7038 OF 2011
(Arising out of SLP(C)Nos.11320-11321 of 2011)
DR. PUNEET GULATI & ORS. ETC. ETC. ... APPELLANTS
Vs.
STATE OF KERALA & ORS. ETC. ETC. ... RESPONDENTS
O R D E R
ALTAMAS KABIR, J.
1. Leave granted.
2. This is a classic example where despite having
succeeded in the proceedings before the High Court,
the Appellants have not got the fruits of their
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victory. Although, initially there were five
petitioners in the two Special Leave Petitions (now
appeals) which we are considering, during the
pendency of the matters all the petitioners, other
than Dr. Amish Kiran Bhai Mehta, opted for separate
disciplines and are no longer interested in
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
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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
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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
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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
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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
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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
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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
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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.
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............................................................J.
(ALTAMAS KABIR)
............................................................J.
(CYRIAC JOSEPH)
...............................................................J.
(SURINDER SINGH NIJJAR)
New Delhi
Dated: 17.08.2011
