Education - All India Institute of Medical Sciences (AIIMS) - allegations that the ALLMS is not strictly adhering to the reservation policy - Apex court dismissed the writ as there is no merits in allegations =
The petitioners have approached this Court by way of filing the
present Writ Petition filed under Article 32 of the Constitution of India
with the grievance that while making admissions in the MBBS course, the
respondent All India Institute of Medical Sciences (AIIMS) is not strictly
adhering to the reservation policy and have questioned the manner in which
seats are allotted to the candidates belonging to reserved category.
As
per them, the AIIMS have far exceeded the quota prescribed for the reserved
category candidates which has resulted in more than 50 % reservations of
the seats, which is contrary to the law laid down by this Court. The stand
of the AIIMS, on the other hand, is that there is no violation of the law
laid down by this Court in this behalf and the methodology adopted by the
AIIMS for admission in MBBS course is perfectly valid and justified. =
whether a reserved category candidate
who is entitled to be selected for admission in open competition on the
basis of his/her own merit should be counted against the quota meant for
the reserved category or should he be treated as a general candidate.
The
Court reached the conclusion that when a candidate is admitted to an
educational institution on his own merit, then such admission is not to be
counted against the quota reserved for Schedule Castes or any other
reserved category.
It was so held in the following words:
“……In view of the legal position enunciated by this Court in the
aforesaid cases the conclusion is irresistible that
a student
who is entitled to be admitted on the basis of merit though
belonging to a reserved category cannot be considered to be
admitted against sets reserved for reserved category. But at the
same time the provisions should be so made that it will not work
out to the disadvantage of such candidate and he may not be
placed at a more disadvantageous position than the other less
meritorious reserved category candidates.
The aforesaid
objective can be achieved if after finding out the candidates
from amongst the reserved category who would otherwise come in
the open merit list and then asking their option for admission
into the different colleges which have been kept reserved for
reserved category and thereafter the cases of less meritorious
reserved category candidates should be considered and they be
allotted seats in whichever colleges the seats should be
available.
In other words, while a reserved category candidate
entitled to admission on the basis of his merit will have the
option of taking admission in the colleges where a specified
number of seats have been kept reserved for reserved category
but while computing the percentage of reservation he will be
deemed to have been admitted as an open category candidate and
not as a reserved category candidate.”
24. Since, we are concerned with the admission to medical course,
aforesaid judgment squarely applies to the present case. Thus we find
that neither upper limit of 50% reservation is breached, nor any rights of
the petitioners are violative or the action of the respondents have been to
their prejudice in any manner. Thus, we do not find any merit in the
present petition, which is accordingly dismissed. No costs.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) No. 677 OF 2013
Samta Aandolan Samiti & Anr.
…..Petitioners
Vs.
Union of India & Ors.
…..Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The petitioners have approached this Court by way of filing the
present Writ Petition filed under Article 32 of the Constitution of India
with the grievance that while making admissions in the MBBS course, the
respondent All India Institute of Medical Sciences (AIIMS) is not strictly
adhering to the reservation policy and have questioned the manner in which
seats are allotted to the candidates belonging to reserved category. As
per them, the AIIMS have far exceeded the quota prescribed for the reserved
category candidates which has resulted in more than 50 % reservations of
the seats, which is contrary to the law laid down by this Court. The stand
of the AIIMS, on the other hand, is that there is no violation of the law
laid down by this Court in this behalf and the methodology adopted by the
AIIMS for admission in MBBS course is perfectly valid and justified. The
controversy has arisen in the following backdrop:
2. “The All India Institute of Medical Sciences (AIIMS), New Delhi
issued Prospectus for admission in the MBBS course starting from August,
2013 along with admission in Six New AIIMS at Bhopal, Patna, Jodhpur,
Rishikesh,Raipur and Bhubaneswar with an intake of 100 students in each new
AIIMS. The reservation policy was notified to be 7.5.% ST, 15% SC, 27% OBC
and Indian Nationals, 3% reservation for Orthopedic physically handicapped
to be provided on horizontal basis. Para 4.2 of the prospectus prescribe
the procedure for selection into the MBBS course hereunder:
“4.2 PROCEDURE OF SELECTION:
Based on the result of the Competitive Entrance
examination, merit lists will be prepared as below:
(a) Common Merit List: Subject to the Govt. of Indi, DOPT.
O.M.No.36011/1/98.Estt.(Res), dated 1st July 1998. It is
clarified that only such SC/ST/OBC candidates who are selected on
the same standard as applied to general candidates shall not be
adjusted against reserved vacancies. In other words, when a
relaxed standard is applied in selecting an SC/ST/OBS candidates,
for example in the age-limit, experience, qualification,
permitted number of chances in written examination, extended zone
of consideration larger than what is provided for General
Category candidates etc. the SC/ST/OBS candidates are to be
counted against reserved vacancies. Such candidates would be
deemed as unavailable for consideration against the unreserved
vacancies. Therefore the reserved candidate will be considered on
General Seat only if no relaxation of the eligibility level (i.e.
% of marks) and at cut off level of marks in MBBS entrance
examination is given.
(b) Scheduled Caste candidates list
(c) Scheduled Tribe candidates list
(d) Other Backward Classes candidates list”
3. Thirty seven (37) candidates from the common merit list, eleven (11)
candidates from the merit list of Scheduled Caste category and five (5)
candidates from the merit list of Scheduled Tribe and 19 (nineteen)
candidates from the merit list of Other Backward Classes category will be
admitted including 3% reservation for orthopaedic physically handicapped on
horizontal basis in the seats available. The reservation will be 7 ½ % ST,
15% SC and 27% for OBC category. In case eleven (11) candidates from the
Scheduled Caste or five (5) candidates from the Scheduled Tribe categories
and nineteen (19) candidates belonging to OBC are not available, then the
number of candidates selected on the basis of merit for general seats shall
be correspondingly increased so that the total number of candidates
selected for the MBBS course remains seventy two (72). The remaining
candidates will be kept on the waiting list in order of merit. Inter se
merit of two or more candidates in the same category obtaining equal marks
in the competitive entrance examination will be determined in order of
preference as under:
(a) Candidates obtaining higher marks in Biology in the
entrance examination.
(b) Candidates obtaining higher marks in Chemistry in the
entrance examination.
(c) Candidates obtaining higher marks in Physics in the
entrance examination.
(d) Candidates older in age to be preferred.
A similar procedure for selection will apply for the six
new AIIMS where the number will be calculated for a total of 100
admissions for each.”
4. Petitioner No.2 being eligible in all respects under unreserved
category had submitted his application form and was allotted application
form number-1021016668. He was issued the Admit Card for AIIMS-MBBS 2013
Entrance Examination. Petitioner No.2 appeared in the competitive entrance
examination held on 1.6.2013 and secured 1066 over all rank. A counseling
letter was issued for counseling at Delhi AIIMS on 10-12 July 2013 and the
Petitioner No.1 was called for counseling scheduled to be held on 10th July
2013.
That as per the counseling letter the method of counseling is:
4. Method of counseling: The following process will be adapted
for counseling for all 7AIIMS Institutes.
i. In the counseling process, the seats to be filled by
open (UR) competition should be filled up first, wherein the
candidates should be called for counseling based on merit alone
irrespective of whether they belong to SC,ST or OBC.
ii. Next, reservation categories like SC/ST/OBC candidates
will be counseled to fill up the seats earmarked for them in
their respective categories. During this process, if a candidate
belonging to SC/ST/OBC who had taken admission under open
competition, opts for a better institution of his/her choice for
which he or she would be eligible as per the rules of
reservation, the seat vacated by him or her in open (UR)
competition shall be filled with a candidate from the same
reservation category only, in order of merit.
Note: All reserved category candidates who qualify in the
open (general) merit list (i.e. 4 times of the open category
seats) shall necessarily attend the counseling for open category
seats and shall exercise his/her option and then if, he/she
desires to opt for a different institution in his/her respective
reserved category, he/she may attend the counseling meant for
that reserved category.
Provided:
a. If he/she is not present or if present, fails to or
refused to take a seat in open category, he/she shall not be
allowed for attending the counseling for reserved seats.
b.He/she cannot opt for institution under reservation, if
he/she had already opted the same institution in open category.
Methods of counseling: In the counseling process, the
seats to be filled by open (UR) competition should be filled up
first, wherein the candidates should be called for counseling
strictly by merit alone till the last unreserved seat is filled,
irrespective of whether they belong to SC,ST or OBC. The
counseling for reserved category seat ( which will also be
strictly by merit) should commence only after filling up of all
the unreserved seats (i.e. open category seats). Meritorious
reserved candidate belonging to SC/ST/OBC category, who has taken
unreserved seat in any institution after attending the open merit
counseling, if exercises his/her option to take a different
institute in the reserved category counseling, the seat so
vacated by this candidate should be available to next meritorious
candidate belonging to that particular reserved category only. In
other word if SC/ST/OBC candidate got any institution under
unreserved category and if he/she opts different institution
under reserved category of his/her choice the resultant vacated
unreserved seat shall be allotted to same category candidate in
order of merit i.e. the vacated seat of meritorious reserved
category candidate should be immediately added to the seats
available under the reserved category in the institute he/she had
opted during counseling for UR seat.
Note: For example – if a SC meritorious candidate who has
initially opted a X institution from open category, vacates a
seat in open category because he wants to take Y institution from
reserved category during the counseling in reserved category, the
same seat (i.e. UR seat of X institute) which is vacated by
him/her shall be made available to the next SC candidate in order
of merit.”
5. Petitioner No.2 appeared in the counseling (1st counseling) conducted
by the respondents. The petitioners aver that the respondents had
conducted the counseling in strict adherence of the procedure quoted
hereinabove. However, the respondents forced reserve candidates to obtain
the unreserved (UR) seats by note (4.2.a) in counseling call letter. In
this way the respondents deliberately tried to convert UR seats to reserve
category seat because of note 4.2. Otherwise the candidates would have been
provided freedom to opt seats under UR seats or category seats of their
choice in different AIIMS. It is averred that the common practice in the
counseling of NEET (National Eligibility cum Entrance Test), AIPMT (All
India Pre Medical Test) and states counseling for admission in Government
Medical Colleges, is parallel counseling for all categories on their merit
cum choice basis in which unreserved seats are filled first as per rule
framed by this Court in Indira Sawhney case.
6. It is stated that the petitioner No.2 has secured rank 1066 in the
competitive entrance examination and counseling for unreserved seats on 1st
day of counseling could reach only up to 663 ranks only. In the counseling
done for unreserved seats approx. around 140 reserve categories candidate
found place on general seats.
7. On the second day of counseling, which is for other backward classes
(OBC) category, the counseling started from rank 1st for OBC and approx.
around 120 OBC candidates, who has secured their merit position in
unreserved category opted for better colleges from their counterpart in
unreserved category by enjoying their reserve status on OBC seats. In
other words, the seats/position occupied by meritorious reserved category
candidates was vacated. All vacated seats and 181 reserve seats were
filled on 11 July by comparative low rank OBC candidate. By adding this
around 45 percent of candidates from OBC took the benefit of Quota instead
of 27 per cent. The case sought to be set up is that by this procedure it
exceeds the limit given by the Constitution.
8. This position is sought to be highlighted by the following MBBS seat
position in each AIIMS:
| Name of Institution|Total |UR |OBC |SC |ST |
| |Seats | | | | |
|AIIMS, New Delhi |72 |37 |19 |11 |5 |
|AIIMS,Bhopal |100 |50 |27 |15 |8 |
|AIIMS,Bhubaneswar |100 |50 |27 |15 |8 |
|AIIMS,Jodhpur |100 |50 |27 |15 |8 |
|AIIMS, Patna |100 |50 |27 |15 |8 |
|AIIMS, Raipur |100 |50 |27 |15 |8 |
|AIIMS,Rishikesh |100 |50 |27 |15 |8 |
|Total |672 |337 |181 |101 |53 |
9. It is stated that as against 181 seats meant for OBC category, 270
seats have been filled from amongst the candidates belonging to this
category which is evidentially impermissible. By the time this matter was
argued, as the third and final counseling had taken place and the allotment
of the seats was done on the basis of that counseling. The final picture
which emerged, is that the last unreserved candidates who secured
admission in reserved category had rank of 1476. There were 79 candidates
in OBC category who had higher rank than 1476 and were, thus, adjusted as
meritorious reserved candidates (MRC) candidates in unreserved candidates.
Likewise, this SC candidate with rank above 1476 could make their way to
unreserved list.
10. On the aforesaid basis, following prayer is made in the Writ
Petition:
(a) Pass writ, order or direction whereby respondents be
directed to give admission to petitioner No.1 in unreserved
category in MBBS course 2013,
(b) Pass writ, order or direction whereby directions No.4
(reproduced at para No.8 of the writ petition) in counseling
letter prescribing procedure for counseling be quashed and set
aside.
(c)Pass writ order or direction whereby respondents be directed
to make strict compliance of the Hon’ble Supreme Court judgment
passed in the case of Union of India vs. Ramesh Ram (2010) 7 SCC
234).
(d) Pass writ order or direction whereby respondents be
restrained to permit the reserve category candidates to occupy
the seats in unreserved category vacated by meritorious category
candidates, who have opted/chosen their reserve category for
seeking admission in MBBS course 2013.
(e) Pass writ order or direction whereby respondents be directed
to undertake the admission exercise for MBBS course 2013 strictly
in terms of prayer sought in Paragraph (c).
(f) Pass such other or further order (s) as this Hon’ble Court
may deem fit in the facts and circumstances of the case.”
11. After issuance of the show cause notice, respondents appeared. Since
main contesting party is the AIIMS, counsel affidavit on its behalf filed
by Dr.A.B.Dey, Dean, (Research) who had acted as Convener of the counseling
in the aforesaid admission process. It is stated by him in his affidavit
that the process of counseling was discussed and finalized in the meeting
held on 26.5.2013 with all Directors, AIIMS, senior officials and senior
faculties. The minutes of the meeting, inter-alia, mentioned that :
“…it was mandatory for all candidates to be present in person
for counseling on the days as given in the call letter. No
request for authorized representative to be present on behalf of
candidate would be entertained. If a candidate failed to come for
counseling in person, she/she would be marked absent and her/his
candidature would stand cancelled…”
12. It is also stated in the counter affidavit that in this meeting it
was decided to constitute a Counseling Committee to undertake three counts
of counseling for MBBS and two rounds of counseling for B.Sc. (Hons.)
Nursing for 7 AIIMS. For this reason, in the counseling letter, attention
of the candidates was drawn to the provision in the prospectus whereby
candidates were asked to give choice about different AIIMS where they would
like to be admitted. They were also informed that allocation of seats will
be done on merit-cum-choice. In the counseling letter, therefore,
candidates were informed that they would exercise their choice of the
particular Institute when called during the counseling as per the rank in
respective category. Notwithstanding whatsoever choices he/she had made
while filling form, choice thus made was to be final and no claim
whatsoever on the basis of choices made in admission form was to be
entertained. This was widely circulated through newspaper advertisement
and posted on AIIMS website as well, well in advance. It is pleaded that
this method of counseling adopted by AIIMS was in tune with the judgment of
this Court in Ritesh R.Sah vs. Dr. Y.L. Yamul & Ors. (1996) 3 SCC 253. The
exact nature of the counseling method which was adopted is stated below :
1.In the counseling process, the seats to be filled by open
(UR) competition should be filled up first, wherein the
candidates should be called for counseling based on merit alone
irrespective of whether they belong to SC,ST or OBC.
2. Next, reservation categories like SC/ST/OBC candidates will
be counseled to fill up the seats earmarked for them in their
respective categories. During this process, if a candidate
belonging to SC/ST/OBC who had taken admission under open
competition, opts for a better institution of his/her choice for
which he or she would be eligible as per the rules of
reservation, the seat vacated by him or her in open (UR)
competition shall be filled with a candidate from the same
reservation category only, in order of merit.
Note: All reserved category candidates who qualify in the open
(general) merit list (i.e. 4 times of the open category seats)
shall necessarily attend the counseling for open category seats
and shall exercise his/her option and then if, he/she desires to
opt for a different institution in his/her respective reserved
category, he/she may attend the counseling meant for that
reserved category.
Provided
a.If he/she is not present or if present, fails to or refuses to take
a seat in open category, he/she shall not be allowed for
attending the counseling for reserved seats.
b. He/she cannot opt for institution under reservation, if he/she had
already opted the same institution in open category.
Methods of counseling
In the counseling process, the seats to be filled by open (UR)
competition should be filled up first, wherein the candidates
should be called for counseling strictly by merit alone till the
last unreserved seat is filled, irrespective of whether they
belong to SC,ST or OBC.
The counseling for reserved category seat (which will also be
strictly by merit) should commence only after filling up of all
the unreserved seats (i.e. open category seats). Meritorious
reserved candidate belonging to SC/ST/OBC category, who has
taken unreserved seat in any institution after attending the open
merit counseling, if exercises his/her option to take a
different institute in the reserved category counseling, the seat
so vacated by this candidate should be available to next
meritorious candidate belonging to that particular reserved
category only. In other word if SC/ST/OBC candidate got any
institution under unreserved category and if he/she opts
different institution under reserved category of his/her choice
the resultant vacated unreserved seat shall be allotted to same
category candidate in order of merit, i.e. the vacated seat of
meritorious reserved category candidate should be immediately
added to the seats available under that reserved category in the
institute he/she had opted during counseling for UR seat.
Note: For example – if a SC meritorious candidate who has initially
opted a X institution from open category, vacates a seat in open
category because he wants to take Y institution from reserved
category during his counseling in reserved category, the same
seat (i.e. UR seat of X institute) which is vacated by him/her
shall be made available to the next SC candidate in order of
merit.”
13. It is pleaded that with the adoption of the aforesaid method, the
authorities found out the candidates among reserved candidates who
qualified on their own merit and are on the open merit list and then asking
their option if they want to choose other Institute of their choice which
is present in their reserved category and not in unreserved category. This
method gives them option to change Institute in their better choice in
reserved category and once that is done such candidates are given that
reserved seats but while computing the percentage of reservation they are
not counted against reservation pool. To achieve that objective, the seat
which they vacated is offered to the same reserved category below in merit.
It is thus pleaded that 50% of the ceiling is never broken in the present
counseling and thus persons belonging to reserved category, who are able to
come on their own merit while competing with the general candidates
category can be put in the list of general/unreserved category, as held by
this Court in the case of Indira Swhney vs. Union of India (1992) Suppl. 3
SCC 212.
14. We have already quoted the general proposition of law, in so far as
extend of reservation is concerned, as laid down in Indira Sawhney (supra).
Mr. Lahoti has placed reliance on paragraphs 804, 807 and 809 of this
judgment whereas learned counsel for the respondent led emphasis on paras
811 and 813. In the case of Indira Sawhney (supra) the principle was
stated in the following terms: We quote hereunder all these paragraphs:
PART-V
(QUESTION NOS. 6. 7 AND 8)
Question 6: To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or
only a rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations
made under Clause (4) of Article 16 or whether it takes in all
types of reservations that can be provided under Article 16?
(c) Further while applying 50% rule, if any, whether an year
should be taken as a unit or whether the total strength of the
cadre should looked to?
In Balaji, a Constitution Bench of this Court rejected the
argument that in the absence of a limitation contained in Article
15(4), no limitation can be prescribed by the court on the extent
of reservation. It observed that a provision under Article 15(4)
being a "special provision" must be within reasonable limits. It
may be appropriate to quote the relevant holding from the
judgment.
When Article 15(4) refers to the special provision for the
advancement of certain classes or scheduled castes or scheduled
tribes, it must not be ignored that the provision which is
authorised to be made is a special provision; it is not a
provision which is exhaustive in character, so that in looking
after the advancement of those classes, the State would be
justified in ignoring altogether the advancement of the rest of
the society. It is because the interests of the society at large
would be served by promoting the advancement of the weaker
elements in the society that Article 15(4) authorises special
provision to be made. But if a provision which is in the nature
of an exception completely excludes the rest of the society, that
clearly is outside the scope of Article 15(4) the Parliament
intended to provide that where the advancement of the Backward
classes or the Scheduled Castes and Tribes was concerned, the
fundamental rights of the citizens, constituting the rest of the
society were to be completely and absolutely ignored ... A
special provision contemplated by Article 16(4) must be within
reasonable limits. The interests of weaker sections of society
which are a first charge on the State and the center have to be
adjusted with the interests of the community as a whole. The
adjustment of these competing claims is undoubtedly a difficult
matter, but if under the guise of making a special provision, a
State reserves practically all the seats available in all the
colleges, that clearly would be subverting the object of Article
15(4). In this matter again, we are reluctant to say definitely
what would be a proper provision to make. Speaking generally and
in a broad way a special provision should be less than 50%; how
much less than 50% would depend upon the relevant prevailing
circumstances in each case.
In Devadasan this rule of 50% was applied to a case arising
under Article 16(4) and on that basis the carry-forward rule was
struck down. In Thomas, however, the correctness of this
principle was seriously questioned, Fazal Ali, J. observed:
This means that the reservation should be within the permissible
limits and should not be a cloak to fill all the posts belonging
to a particular class of citizens and thus violate Article 16(1)
of the Constitution indirectly. At the same time Clause (4) of
Article 16 does not fix any limit on the power of the Government
to make reservation. Since Clause (4) is a part of Article 16 of
the Constitution it is manifest that the State cannot be allowed
to indulge in excessive reservation so as to defeat the policy
contained in Article 16(1). As to what would be a suitable
reservation within permissible limits will depend upon the facts
and circumstances of each case and no hard and fast rule can be
laid down, nor can this matter be reduced to a mathematical
formula so as to be adhered to in all cases. Decided cases of
this Court have no doubt laid down that the percentage of
reservation should not exceed 50%. As I read the authorities,
this is however, a rule of caution and does not exhaust all
cattgories. Suppose for instance a Stats has a large number of
backward class of citizens which constitute 80% of the population
and the Government, in order to give them proper representation,
reserves 80% of the jobs for them can it be said that the
percentage of reservation is bad and violates the permissible
limits of Clause (4) of Article 16? The answer must necessarily
be in the negative. The dominant object to this provision is to
take steps to make inadequate representation adequate.
Krishna Iyer, J. agreed with the view taken by Fazal Ali, J. in
the following words:
I agree with my learned brother Fazal Ali, J. in the view that
the arithmetical limit of 50% in any one year set by some earlier
rulings cannot perhaps be pressed too far. Overall representation
in a department does not depend on recruitment in a particular
year, but the total, strength of a cadre. I agree with his
construction of Article 16(4) and his view about the 'carry
forward' rule.
823. Mathew, J. did not specifically deal with this aspect but
from the principles of 'proportional equality' and 'equality of
results' espoused by the learned Judge, it is argued that he did
not accept the 50% rule. Bag, J. also did not refer to this rule
but the following sentence occurs in his judgment at page 962 and
963:
If a reservation of posts under Article 16(4) for employees of
backward classes could include complete reservation of higher
posts to which they could be promoted, about which there could be
no doubt now, I fail to see why it cannot be partial or for a
part of the duration of service and hedged round with the
condition that a temporary promotion would operate as a complete
and confirmed promotion only if the temporary promotee satisfies
some tests within a given time.
Ray, C.J. did not dispute the correctness of the 50% rule but at
the same time he pointed out that this percentage should be
applied to the entire service as a whole.
807. We must, however, point out that Clause (4) speaks of
adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and
that too for a limited period. These articles speak of
reservation of seats in Lok Sabha and the State legislatures in
favour of Scheduled Tribes and Scheduled Castes proportionate to
their population, but they are only temporary and special
provisions. It is therefore not possible to accept the theory of
proportionate representation though the proportion of population
of backward classes to the total population would certainly be
relevant. Just as every power must be exercised reasonably and
fairly, the power conferred by Clause (4) of Article 16 should
also be exercised in a fair manner and within reasonable limits
-and what is more reasonable than to say that reservation under
Clause (4) shall not exceed 50% of the appointments or posts,
barring certain extraordinary situations as explained
hereinafter. From this point of view, the 27% reservation
provided by the impugned Memorandums in favour of backward
classes is well within the reasonable limits. Together with
reservation in favour of Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full Bench
decision of the Andhra Pradesh High Court in Narayan Rao v. State
, striking down the enhancement of reservation from 25% to 44%
for O.B.Cs. The said enhancement had the effect of taking the
total reservation under Article 16(4) to 65%.
“809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4)
of Article 16 should not exceed 50%.
“…811… It is well to remember that the reservations under
Article 16 (4) do not operate like a communal reservation. It may
well happen that some members belonging to, say Scheduled Castes
get selected in the open competition field on the basis of their
own merit; they will not be counted against the quota reserved
for Scheduled Castes; they will be treated as open competition
candidates.”
“813….It is however, made clear that the rule of 50% shall
be applicable only to reservation proper; they shall not be -
indeed cannot be – applicable to exemptions, concessions or
relaxations, if any provided to backward class of citizen’s under
Article 16(4)…”
15. There is no quarrel upto this stage. It is now well entrenched
principle of law that those members belonging to reserved category who get
selected in the open competition on the basis of their own merit have right
to be included in the general list/unreserved category and not to be
counted against the quota reserved for Scheduled Caste. This was
recognized by the Constitutional Bench judgment of this Court in Indira
Sawhney (supra) and has been followed in series of judgments thereafter.
Thus, when certain persons belonging to reserved category get selected in
open competition on the basis of their merit, they are not to be counted
in the reserved category against the reserved category quota. It is open to
the authorities to fill the posts meant for reserved category candidates
from amongst the persons in such categories after excluding those who have
found their place in general merit. As a fortiori, while calculating the
limit of 50% reservation, those candidates belonging to reserved category
who have found their place on the basis of their merit competing with
general candidates are not to be taken into consideration. It is also not
in dispute that such OBC/SC candidates who have been included in general
category have come in that category on their own merit with no relaxation
of the eligibility level i.e. percentage of marks. However, the objection
of Mr. Lahoti, learned counsel for the petitioner, was to the method of
counseling which was adopted in the present case as that has come, no
doubt, above to the persons in reserved categories. He submitted that as
per para 4 of the counseling letter choice was given to SC/ST/OBC
candidates who had taken admission in the open competition, to opt for a
better Institution of their choice for which he/she would have been
eligible as per the rules of reservation. This, according to him, was
impermissible as once a candidate in reserved category had taken admission
under the open competition, he could not have been given a choice for
better Institution on the premise that he/she will be governed by Rules of
reservation. For this reason, he took strong objection to the note
appended to para 4 of the counseling letter as well which facilitated this
process. He, thus, submitted that the counseling letter/circular was
opposed to the provision made in the prospectus and was also contrary to
the judgment of this Court in Union of India vs. Ramesh Ram & Ors. (2010) 7
SCC 234.
16. Learned counsel for the respondent, on the other hand, maintained
that 50% quota had not been breached and what was done in fact was inter se
adjustment among those who belong to reserved class i.e. those who were
selected on their own merit and found their way into general category vis-a-
vis those who were admitted on the basis of reservation provided in the
respective reserved categories. He argued that this was necessary as
otherwise those persons from reserved category who was more meritorious
would be in a disadvantageous position vis-à-vis those who secured
admission on the basis of relaxed standard under the reserved quota meant
for them. His submission was that this was approved by this Court in the
case of Yoganand Vishwasrao Patil vs. State of Maharashtra (2005) 12 SCC
311.
17. We have considered the submissions of counsel of both the parties.
At the outset, we would like to point out that in the present case, we are
dealing with the case of admission with medical course, and the position
which we are going to explain in the subsequent paragraphs is confined to
cases of admissions and not appointment into the service under the
Government. Further, this applies only to MBBS Course and not Post
Graduate Courses. Further, we are concerned herein admission process in
Seven AIIMS only and the position explained does not relate to those cases
where their admissions are in different colleges.
18. With this clarification, we proceed to deal with the issue.
19. It is stated at the cost of the repetition that those members who
belong to reserved category but get selected in the open competition on the
basis of their own merit have a right to be included in the
general/unreserved category. Such MRC not to be included in the quota
reserved for Scheduled Caste etc. It is an admitted position that if these
persons are excluded, the respondents have not exceeded the quota meant for
reserved category. The respondents, at the time of counseling, have only
accorded a higher/better choice to these meritorious reserved candidates
(MRC) who got recommended against general/unreserved seats vis-à-vis those
reserved category candidates who are accommodated against their quota. It
is, therefore, an inter-se adjustment between the two kinds of persons
belonging to reserved category. In their inter-se merit, these persons who
have been able to find their place in general list on account of their
merit are definitely better placed than those candidates who are selected
in the reserved category, though both types of candidates belong to
reserved category. Thus, if between these two categories of persons
belonging to same class, higher choice is not given to the persons who are
better in merit viz. the MRCs, it would clearly be injustice to them. This
was precisely the issue which was referred for decision to the Constitution
Bench in the case of Ramesh Ram (supra). In paragraph 3 of the judgment,
the Constitution Bench stated the question which was referred for its
decision and, the same reads as follows:
“Whether candidates belonging to reserved category, who get
recommended against general/unreserved vacancies on account of
their merit (without the benefit of any relaxation/concession),
can opt for a higher choice of service earmarked for reserved
category and thereby migrate to reserved category.”
20. In the light of the submissions made by the counsel for the parties,
the Court framed three questions which had arisen for consideration and the
same are as under:
I.Whether the reserved category candidates who were
selected on merit (i.e. MRCs) and placed in the list of general
category candidates could be considered as reserved category
candidates at the time of “service allocation”?
II.Whether Rules 16(2),(3),(4) and (5) of the CSE Rules
are inconsistent with Rule 16(1) and violative of Articles
14,16(4) and 335 of the Constitution of India?
III.Whether the order of the Central Administrative
Tribunal was valid to the extent that it relied on Anurag Patel
vs. U.P.Public Service Commission (which in turn had referred to
the judgment in Ritesh R.Sah v. Dr.Y.L.Yamul, which dealt with
reservations for the purpose of admission to postgraduate medical
course); and whether the principles followed for reservations in
admissions to educational institutions can be applied to examine
the constitutionality of a policy that deals with reservation in
civil services.”
21. Dealing with the first question which directly arises in the present
case, the Court clarified that a distinction is to be maintained between
the cases dealing with the admission to educational institutions and
appointment to a service. The Court accepted the general proposition that
such a course of action affords a meritorious reserved candidates (MRC),
the benefit of reservation in so far as service allocation is concerned, if
this is not done, lesser meritorious reserved candidates would be able to
secure better discipline. Therefore, this course of action preserves and
protects inter-se merit amongst the reserved candidates.
22. No doubt, while doing so, the Court was of the opinion that such
meritorious reserved candidates (MRC) who avail the benefit of Rule 16(2)
of the Civil Services Examination Rules (which permitted such inter-se
transfer) and are eventually adjustment in the reserved category, they
should be counted part of reserved category for the purpose of computing
aggregate reservation quota. However, it was categorically stated that
this proposition applies when there is an appointment to a service under
the State and categorically excluded the cases of admission in educational
institutions. In so far as admission in educational institutions is
concerned, such a MRC was to continue to be treated as belonging to
general category, which position he attained because of his initial merit.
The Court noted that this was so held in Ritesh R.Sah v. Dr. Y.L.Yamul
(1996) 3 SCC 253.
23. The question in that case was
whether a reserved category candidate
who is entitled to be selected for admission in open competition on the
basis of his/her own merit should be counted against the quota meant for
the reserved category or should he be treated as a general candidate. The
Court reached the conclusion that when a candidate is admitted to an
educational institution on his own merit, then such admission is not to be
counted against the quota reserved for Schedule Castes or any other
reserved category. It was so held in the following words:
“……In view of the legal position enunciated by this Court in the
aforesaid cases the conclusion is irresistible that a student
who is entitled to be admitted on the basis of merit though
belonging to a reserved category cannot be considered to be
admitted against sets reserved for reserved category. But at the
same time the provisions should be so made that it will not work
out to the disadvantage of such candidate and he may not be
placed at a more disadvantageous position than the other less
meritorious reserved category candidates. The aforesaid
objective can be achieved if after finding out the candidates
from amongst the reserved category who would otherwise come in
the open merit list and then asking their option for admission
into the different colleges which have been kept reserved for
reserved category and thereafter the cases of less meritorious
reserved category candidates should be considered and they be
allotted seats in whichever colleges the seats should be
available. In other words, while a reserved category candidate
entitled to admission on the basis of his merit will have the
option of taking admission in the colleges where a specified
number of seats have been kept reserved for reserved category
but while computing the percentage of reservation he will be
deemed to have been admitted as an open category candidate and
not as a reserved category candidate.”
24. Since, we are concerned with the admission to medical course,
aforesaid judgment squarely applies to the present case. Thus we find
that neither upper limit of 50% reservation is breached, nor any rights of
the petitioners are violative or the action of the respondents have been to
their prejudice in any manner. Thus, we do not find any merit in the
present petition, which is accordingly dismissed. No costs.
………………………………….J.
(K.S.Radhakrishnan)
…………………………………J.
(A.K.Sikri)
New Delhi,
December 11, 2013
The petitioners have approached this Court by way of filing the
present Writ Petition filed under Article 32 of the Constitution of India
with the grievance that while making admissions in the MBBS course, the
respondent All India Institute of Medical Sciences (AIIMS) is not strictly
adhering to the reservation policy and have questioned the manner in which
seats are allotted to the candidates belonging to reserved category.
As
per them, the AIIMS have far exceeded the quota prescribed for the reserved
category candidates which has resulted in more than 50 % reservations of
the seats, which is contrary to the law laid down by this Court. The stand
of the AIIMS, on the other hand, is that there is no violation of the law
laid down by this Court in this behalf and the methodology adopted by the
AIIMS for admission in MBBS course is perfectly valid and justified. =
whether a reserved category candidate
who is entitled to be selected for admission in open competition on the
basis of his/her own merit should be counted against the quota meant for
the reserved category or should he be treated as a general candidate.
The
Court reached the conclusion that when a candidate is admitted to an
educational institution on his own merit, then such admission is not to be
counted against the quota reserved for Schedule Castes or any other
reserved category.
It was so held in the following words:
“……In view of the legal position enunciated by this Court in the
aforesaid cases the conclusion is irresistible that
a student
who is entitled to be admitted on the basis of merit though
belonging to a reserved category cannot be considered to be
admitted against sets reserved for reserved category. But at the
same time the provisions should be so made that it will not work
out to the disadvantage of such candidate and he may not be
placed at a more disadvantageous position than the other less
meritorious reserved category candidates.
The aforesaid
objective can be achieved if after finding out the candidates
from amongst the reserved category who would otherwise come in
the open merit list and then asking their option for admission
into the different colleges which have been kept reserved for
reserved category and thereafter the cases of less meritorious
reserved category candidates should be considered and they be
allotted seats in whichever colleges the seats should be
available.
In other words, while a reserved category candidate
entitled to admission on the basis of his merit will have the
option of taking admission in the colleges where a specified
number of seats have been kept reserved for reserved category
but while computing the percentage of reservation he will be
deemed to have been admitted as an open category candidate and
not as a reserved category candidate.”
24. Since, we are concerned with the admission to medical course,
aforesaid judgment squarely applies to the present case. Thus we find
that neither upper limit of 50% reservation is breached, nor any rights of
the petitioners are violative or the action of the respondents have been to
their prejudice in any manner. Thus, we do not find any merit in the
present petition, which is accordingly dismissed. No costs.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) No. 677 OF 2013
Samta Aandolan Samiti & Anr.
…..Petitioners
Vs.
Union of India & Ors.
…..Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The petitioners have approached this Court by way of filing the
present Writ Petition filed under Article 32 of the Constitution of India
with the grievance that while making admissions in the MBBS course, the
respondent All India Institute of Medical Sciences (AIIMS) is not strictly
adhering to the reservation policy and have questioned the manner in which
seats are allotted to the candidates belonging to reserved category. As
per them, the AIIMS have far exceeded the quota prescribed for the reserved
category candidates which has resulted in more than 50 % reservations of
the seats, which is contrary to the law laid down by this Court. The stand
of the AIIMS, on the other hand, is that there is no violation of the law
laid down by this Court in this behalf and the methodology adopted by the
AIIMS for admission in MBBS course is perfectly valid and justified. The
controversy has arisen in the following backdrop:
2. “The All India Institute of Medical Sciences (AIIMS), New Delhi
issued Prospectus for admission in the MBBS course starting from August,
2013 along with admission in Six New AIIMS at Bhopal, Patna, Jodhpur,
Rishikesh,Raipur and Bhubaneswar with an intake of 100 students in each new
AIIMS. The reservation policy was notified to be 7.5.% ST, 15% SC, 27% OBC
and Indian Nationals, 3% reservation for Orthopedic physically handicapped
to be provided on horizontal basis. Para 4.2 of the prospectus prescribe
the procedure for selection into the MBBS course hereunder:
“4.2 PROCEDURE OF SELECTION:
Based on the result of the Competitive Entrance
examination, merit lists will be prepared as below:
(a) Common Merit List: Subject to the Govt. of Indi, DOPT.
O.M.No.36011/1/98.Estt.(Res), dated 1st July 1998. It is
clarified that only such SC/ST/OBC candidates who are selected on
the same standard as applied to general candidates shall not be
adjusted against reserved vacancies. In other words, when a
relaxed standard is applied in selecting an SC/ST/OBS candidates,
for example in the age-limit, experience, qualification,
permitted number of chances in written examination, extended zone
of consideration larger than what is provided for General
Category candidates etc. the SC/ST/OBS candidates are to be
counted against reserved vacancies. Such candidates would be
deemed as unavailable for consideration against the unreserved
vacancies. Therefore the reserved candidate will be considered on
General Seat only if no relaxation of the eligibility level (i.e.
% of marks) and at cut off level of marks in MBBS entrance
examination is given.
(b) Scheduled Caste candidates list
(c) Scheduled Tribe candidates list
(d) Other Backward Classes candidates list”
3. Thirty seven (37) candidates from the common merit list, eleven (11)
candidates from the merit list of Scheduled Caste category and five (5)
candidates from the merit list of Scheduled Tribe and 19 (nineteen)
candidates from the merit list of Other Backward Classes category will be
admitted including 3% reservation for orthopaedic physically handicapped on
horizontal basis in the seats available. The reservation will be 7 ½ % ST,
15% SC and 27% for OBC category. In case eleven (11) candidates from the
Scheduled Caste or five (5) candidates from the Scheduled Tribe categories
and nineteen (19) candidates belonging to OBC are not available, then the
number of candidates selected on the basis of merit for general seats shall
be correspondingly increased so that the total number of candidates
selected for the MBBS course remains seventy two (72). The remaining
candidates will be kept on the waiting list in order of merit. Inter se
merit of two or more candidates in the same category obtaining equal marks
in the competitive entrance examination will be determined in order of
preference as under:
(a) Candidates obtaining higher marks in Biology in the
entrance examination.
(b) Candidates obtaining higher marks in Chemistry in the
entrance examination.
(c) Candidates obtaining higher marks in Physics in the
entrance examination.
(d) Candidates older in age to be preferred.
A similar procedure for selection will apply for the six
new AIIMS where the number will be calculated for a total of 100
admissions for each.”
4. Petitioner No.2 being eligible in all respects under unreserved
category had submitted his application form and was allotted application
form number-1021016668. He was issued the Admit Card for AIIMS-MBBS 2013
Entrance Examination. Petitioner No.2 appeared in the competitive entrance
examination held on 1.6.2013 and secured 1066 over all rank. A counseling
letter was issued for counseling at Delhi AIIMS on 10-12 July 2013 and the
Petitioner No.1 was called for counseling scheduled to be held on 10th July
2013.
That as per the counseling letter the method of counseling is:
4. Method of counseling: The following process will be adapted
for counseling for all 7AIIMS Institutes.
i. In the counseling process, the seats to be filled by
open (UR) competition should be filled up first, wherein the
candidates should be called for counseling based on merit alone
irrespective of whether they belong to SC,ST or OBC.
ii. Next, reservation categories like SC/ST/OBC candidates
will be counseled to fill up the seats earmarked for them in
their respective categories. During this process, if a candidate
belonging to SC/ST/OBC who had taken admission under open
competition, opts for a better institution of his/her choice for
which he or she would be eligible as per the rules of
reservation, the seat vacated by him or her in open (UR)
competition shall be filled with a candidate from the same
reservation category only, in order of merit.
Note: All reserved category candidates who qualify in the
open (general) merit list (i.e. 4 times of the open category
seats) shall necessarily attend the counseling for open category
seats and shall exercise his/her option and then if, he/she
desires to opt for a different institution in his/her respective
reserved category, he/she may attend the counseling meant for
that reserved category.
Provided:
a. If he/she is not present or if present, fails to or
refused to take a seat in open category, he/she shall not be
allowed for attending the counseling for reserved seats.
b.He/she cannot opt for institution under reservation, if
he/she had already opted the same institution in open category.
Methods of counseling: In the counseling process, the
seats to be filled by open (UR) competition should be filled up
first, wherein the candidates should be called for counseling
strictly by merit alone till the last unreserved seat is filled,
irrespective of whether they belong to SC,ST or OBC. The
counseling for reserved category seat ( which will also be
strictly by merit) should commence only after filling up of all
the unreserved seats (i.e. open category seats). Meritorious
reserved candidate belonging to SC/ST/OBC category, who has taken
unreserved seat in any institution after attending the open merit
counseling, if exercises his/her option to take a different
institute in the reserved category counseling, the seat so
vacated by this candidate should be available to next meritorious
candidate belonging to that particular reserved category only. In
other word if SC/ST/OBC candidate got any institution under
unreserved category and if he/she opts different institution
under reserved category of his/her choice the resultant vacated
unreserved seat shall be allotted to same category candidate in
order of merit i.e. the vacated seat of meritorious reserved
category candidate should be immediately added to the seats
available under the reserved category in the institute he/she had
opted during counseling for UR seat.
Note: For example – if a SC meritorious candidate who has
initially opted a X institution from open category, vacates a
seat in open category because he wants to take Y institution from
reserved category during the counseling in reserved category, the
same seat (i.e. UR seat of X institute) which is vacated by
him/her shall be made available to the next SC candidate in order
of merit.”
5. Petitioner No.2 appeared in the counseling (1st counseling) conducted
by the respondents. The petitioners aver that the respondents had
conducted the counseling in strict adherence of the procedure quoted
hereinabove. However, the respondents forced reserve candidates to obtain
the unreserved (UR) seats by note (4.2.a) in counseling call letter. In
this way the respondents deliberately tried to convert UR seats to reserve
category seat because of note 4.2. Otherwise the candidates would have been
provided freedom to opt seats under UR seats or category seats of their
choice in different AIIMS. It is averred that the common practice in the
counseling of NEET (National Eligibility cum Entrance Test), AIPMT (All
India Pre Medical Test) and states counseling for admission in Government
Medical Colleges, is parallel counseling for all categories on their merit
cum choice basis in which unreserved seats are filled first as per rule
framed by this Court in Indira Sawhney case.
6. It is stated that the petitioner No.2 has secured rank 1066 in the
competitive entrance examination and counseling for unreserved seats on 1st
day of counseling could reach only up to 663 ranks only. In the counseling
done for unreserved seats approx. around 140 reserve categories candidate
found place on general seats.
7. On the second day of counseling, which is for other backward classes
(OBC) category, the counseling started from rank 1st for OBC and approx.
around 120 OBC candidates, who has secured their merit position in
unreserved category opted for better colleges from their counterpart in
unreserved category by enjoying their reserve status on OBC seats. In
other words, the seats/position occupied by meritorious reserved category
candidates was vacated. All vacated seats and 181 reserve seats were
filled on 11 July by comparative low rank OBC candidate. By adding this
around 45 percent of candidates from OBC took the benefit of Quota instead
of 27 per cent. The case sought to be set up is that by this procedure it
exceeds the limit given by the Constitution.
8. This position is sought to be highlighted by the following MBBS seat
position in each AIIMS:
| Name of Institution|Total |UR |OBC |SC |ST |
| |Seats | | | | |
|AIIMS, New Delhi |72 |37 |19 |11 |5 |
|AIIMS,Bhopal |100 |50 |27 |15 |8 |
|AIIMS,Bhubaneswar |100 |50 |27 |15 |8 |
|AIIMS,Jodhpur |100 |50 |27 |15 |8 |
|AIIMS, Patna |100 |50 |27 |15 |8 |
|AIIMS, Raipur |100 |50 |27 |15 |8 |
|AIIMS,Rishikesh |100 |50 |27 |15 |8 |
|Total |672 |337 |181 |101 |53 |
9. It is stated that as against 181 seats meant for OBC category, 270
seats have been filled from amongst the candidates belonging to this
category which is evidentially impermissible. By the time this matter was
argued, as the third and final counseling had taken place and the allotment
of the seats was done on the basis of that counseling. The final picture
which emerged, is that the last unreserved candidates who secured
admission in reserved category had rank of 1476. There were 79 candidates
in OBC category who had higher rank than 1476 and were, thus, adjusted as
meritorious reserved candidates (MRC) candidates in unreserved candidates.
Likewise, this SC candidate with rank above 1476 could make their way to
unreserved list.
10. On the aforesaid basis, following prayer is made in the Writ
Petition:
(a) Pass writ, order or direction whereby respondents be
directed to give admission to petitioner No.1 in unreserved
category in MBBS course 2013,
(b) Pass writ, order or direction whereby directions No.4
(reproduced at para No.8 of the writ petition) in counseling
letter prescribing procedure for counseling be quashed and set
aside.
(c)Pass writ order or direction whereby respondents be directed
to make strict compliance of the Hon’ble Supreme Court judgment
passed in the case of Union of India vs. Ramesh Ram (2010) 7 SCC
234).
(d) Pass writ order or direction whereby respondents be
restrained to permit the reserve category candidates to occupy
the seats in unreserved category vacated by meritorious category
candidates, who have opted/chosen their reserve category for
seeking admission in MBBS course 2013.
(e) Pass writ order or direction whereby respondents be directed
to undertake the admission exercise for MBBS course 2013 strictly
in terms of prayer sought in Paragraph (c).
(f) Pass such other or further order (s) as this Hon’ble Court
may deem fit in the facts and circumstances of the case.”
11. After issuance of the show cause notice, respondents appeared. Since
main contesting party is the AIIMS, counsel affidavit on its behalf filed
by Dr.A.B.Dey, Dean, (Research) who had acted as Convener of the counseling
in the aforesaid admission process. It is stated by him in his affidavit
that the process of counseling was discussed and finalized in the meeting
held on 26.5.2013 with all Directors, AIIMS, senior officials and senior
faculties. The minutes of the meeting, inter-alia, mentioned that :
“…it was mandatory for all candidates to be present in person
for counseling on the days as given in the call letter. No
request for authorized representative to be present on behalf of
candidate would be entertained. If a candidate failed to come for
counseling in person, she/she would be marked absent and her/his
candidature would stand cancelled…”
12. It is also stated in the counter affidavit that in this meeting it
was decided to constitute a Counseling Committee to undertake three counts
of counseling for MBBS and two rounds of counseling for B.Sc. (Hons.)
Nursing for 7 AIIMS. For this reason, in the counseling letter, attention
of the candidates was drawn to the provision in the prospectus whereby
candidates were asked to give choice about different AIIMS where they would
like to be admitted. They were also informed that allocation of seats will
be done on merit-cum-choice. In the counseling letter, therefore,
candidates were informed that they would exercise their choice of the
particular Institute when called during the counseling as per the rank in
respective category. Notwithstanding whatsoever choices he/she had made
while filling form, choice thus made was to be final and no claim
whatsoever on the basis of choices made in admission form was to be
entertained. This was widely circulated through newspaper advertisement
and posted on AIIMS website as well, well in advance. It is pleaded that
this method of counseling adopted by AIIMS was in tune with the judgment of
this Court in Ritesh R.Sah vs. Dr. Y.L. Yamul & Ors. (1996) 3 SCC 253. The
exact nature of the counseling method which was adopted is stated below :
1.In the counseling process, the seats to be filled by open
(UR) competition should be filled up first, wherein the
candidates should be called for counseling based on merit alone
irrespective of whether they belong to SC,ST or OBC.
2. Next, reservation categories like SC/ST/OBC candidates will
be counseled to fill up the seats earmarked for them in their
respective categories. During this process, if a candidate
belonging to SC/ST/OBC who had taken admission under open
competition, opts for a better institution of his/her choice for
which he or she would be eligible as per the rules of
reservation, the seat vacated by him or her in open (UR)
competition shall be filled with a candidate from the same
reservation category only, in order of merit.
Note: All reserved category candidates who qualify in the open
(general) merit list (i.e. 4 times of the open category seats)
shall necessarily attend the counseling for open category seats
and shall exercise his/her option and then if, he/she desires to
opt for a different institution in his/her respective reserved
category, he/she may attend the counseling meant for that
reserved category.
Provided
a.If he/she is not present or if present, fails to or refuses to take
a seat in open category, he/she shall not be allowed for
attending the counseling for reserved seats.
b. He/she cannot opt for institution under reservation, if he/she had
already opted the same institution in open category.
Methods of counseling
In the counseling process, the seats to be filled by open (UR)
competition should be filled up first, wherein the candidates
should be called for counseling strictly by merit alone till the
last unreserved seat is filled, irrespective of whether they
belong to SC,ST or OBC.
The counseling for reserved category seat (which will also be
strictly by merit) should commence only after filling up of all
the unreserved seats (i.e. open category seats). Meritorious
reserved candidate belonging to SC/ST/OBC category, who has
taken unreserved seat in any institution after attending the open
merit counseling, if exercises his/her option to take a
different institute in the reserved category counseling, the seat
so vacated by this candidate should be available to next
meritorious candidate belonging to that particular reserved
category only. In other word if SC/ST/OBC candidate got any
institution under unreserved category and if he/she opts
different institution under reserved category of his/her choice
the resultant vacated unreserved seat shall be allotted to same
category candidate in order of merit, i.e. the vacated seat of
meritorious reserved category candidate should be immediately
added to the seats available under that reserved category in the
institute he/she had opted during counseling for UR seat.
Note: For example – if a SC meritorious candidate who has initially
opted a X institution from open category, vacates a seat in open
category because he wants to take Y institution from reserved
category during his counseling in reserved category, the same
seat (i.e. UR seat of X institute) which is vacated by him/her
shall be made available to the next SC candidate in order of
merit.”
13. It is pleaded that with the adoption of the aforesaid method, the
authorities found out the candidates among reserved candidates who
qualified on their own merit and are on the open merit list and then asking
their option if they want to choose other Institute of their choice which
is present in their reserved category and not in unreserved category. This
method gives them option to change Institute in their better choice in
reserved category and once that is done such candidates are given that
reserved seats but while computing the percentage of reservation they are
not counted against reservation pool. To achieve that objective, the seat
which they vacated is offered to the same reserved category below in merit.
It is thus pleaded that 50% of the ceiling is never broken in the present
counseling and thus persons belonging to reserved category, who are able to
come on their own merit while competing with the general candidates
category can be put in the list of general/unreserved category, as held by
this Court in the case of Indira Swhney vs. Union of India (1992) Suppl. 3
SCC 212.
14. We have already quoted the general proposition of law, in so far as
extend of reservation is concerned, as laid down in Indira Sawhney (supra).
Mr. Lahoti has placed reliance on paragraphs 804, 807 and 809 of this
judgment whereas learned counsel for the respondent led emphasis on paras
811 and 813. In the case of Indira Sawhney (supra) the principle was
stated in the following terms: We quote hereunder all these paragraphs:
PART-V
(QUESTION NOS. 6. 7 AND 8)
Question 6: To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or
only a rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations
made under Clause (4) of Article 16 or whether it takes in all
types of reservations that can be provided under Article 16?
(c) Further while applying 50% rule, if any, whether an year
should be taken as a unit or whether the total strength of the
cadre should looked to?
In Balaji, a Constitution Bench of this Court rejected the
argument that in the absence of a limitation contained in Article
15(4), no limitation can be prescribed by the court on the extent
of reservation. It observed that a provision under Article 15(4)
being a "special provision" must be within reasonable limits. It
may be appropriate to quote the relevant holding from the
judgment.
When Article 15(4) refers to the special provision for the
advancement of certain classes or scheduled castes or scheduled
tribes, it must not be ignored that the provision which is
authorised to be made is a special provision; it is not a
provision which is exhaustive in character, so that in looking
after the advancement of those classes, the State would be
justified in ignoring altogether the advancement of the rest of
the society. It is because the interests of the society at large
would be served by promoting the advancement of the weaker
elements in the society that Article 15(4) authorises special
provision to be made. But if a provision which is in the nature
of an exception completely excludes the rest of the society, that
clearly is outside the scope of Article 15(4) the Parliament
intended to provide that where the advancement of the Backward
classes or the Scheduled Castes and Tribes was concerned, the
fundamental rights of the citizens, constituting the rest of the
society were to be completely and absolutely ignored ... A
special provision contemplated by Article 16(4) must be within
reasonable limits. The interests of weaker sections of society
which are a first charge on the State and the center have to be
adjusted with the interests of the community as a whole. The
adjustment of these competing claims is undoubtedly a difficult
matter, but if under the guise of making a special provision, a
State reserves practically all the seats available in all the
colleges, that clearly would be subverting the object of Article
15(4). In this matter again, we are reluctant to say definitely
what would be a proper provision to make. Speaking generally and
in a broad way a special provision should be less than 50%; how
much less than 50% would depend upon the relevant prevailing
circumstances in each case.
In Devadasan this rule of 50% was applied to a case arising
under Article 16(4) and on that basis the carry-forward rule was
struck down. In Thomas, however, the correctness of this
principle was seriously questioned, Fazal Ali, J. observed:
This means that the reservation should be within the permissible
limits and should not be a cloak to fill all the posts belonging
to a particular class of citizens and thus violate Article 16(1)
of the Constitution indirectly. At the same time Clause (4) of
Article 16 does not fix any limit on the power of the Government
to make reservation. Since Clause (4) is a part of Article 16 of
the Constitution it is manifest that the State cannot be allowed
to indulge in excessive reservation so as to defeat the policy
contained in Article 16(1). As to what would be a suitable
reservation within permissible limits will depend upon the facts
and circumstances of each case and no hard and fast rule can be
laid down, nor can this matter be reduced to a mathematical
formula so as to be adhered to in all cases. Decided cases of
this Court have no doubt laid down that the percentage of
reservation should not exceed 50%. As I read the authorities,
this is however, a rule of caution and does not exhaust all
cattgories. Suppose for instance a Stats has a large number of
backward class of citizens which constitute 80% of the population
and the Government, in order to give them proper representation,
reserves 80% of the jobs for them can it be said that the
percentage of reservation is bad and violates the permissible
limits of Clause (4) of Article 16? The answer must necessarily
be in the negative. The dominant object to this provision is to
take steps to make inadequate representation adequate.
Krishna Iyer, J. agreed with the view taken by Fazal Ali, J. in
the following words:
I agree with my learned brother Fazal Ali, J. in the view that
the arithmetical limit of 50% in any one year set by some earlier
rulings cannot perhaps be pressed too far. Overall representation
in a department does not depend on recruitment in a particular
year, but the total, strength of a cadre. I agree with his
construction of Article 16(4) and his view about the 'carry
forward' rule.
823. Mathew, J. did not specifically deal with this aspect but
from the principles of 'proportional equality' and 'equality of
results' espoused by the learned Judge, it is argued that he did
not accept the 50% rule. Bag, J. also did not refer to this rule
but the following sentence occurs in his judgment at page 962 and
963:
If a reservation of posts under Article 16(4) for employees of
backward classes could include complete reservation of higher
posts to which they could be promoted, about which there could be
no doubt now, I fail to see why it cannot be partial or for a
part of the duration of service and hedged round with the
condition that a temporary promotion would operate as a complete
and confirmed promotion only if the temporary promotee satisfies
some tests within a given time.
Ray, C.J. did not dispute the correctness of the 50% rule but at
the same time he pointed out that this percentage should be
applied to the entire service as a whole.
807. We must, however, point out that Clause (4) speaks of
adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and
that too for a limited period. These articles speak of
reservation of seats in Lok Sabha and the State legislatures in
favour of Scheduled Tribes and Scheduled Castes proportionate to
their population, but they are only temporary and special
provisions. It is therefore not possible to accept the theory of
proportionate representation though the proportion of population
of backward classes to the total population would certainly be
relevant. Just as every power must be exercised reasonably and
fairly, the power conferred by Clause (4) of Article 16 should
also be exercised in a fair manner and within reasonable limits
-and what is more reasonable than to say that reservation under
Clause (4) shall not exceed 50% of the appointments or posts,
barring certain extraordinary situations as explained
hereinafter. From this point of view, the 27% reservation
provided by the impugned Memorandums in favour of backward
classes is well within the reasonable limits. Together with
reservation in favour of Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full Bench
decision of the Andhra Pradesh High Court in Narayan Rao v. State
, striking down the enhancement of reservation from 25% to 44%
for O.B.Cs. The said enhancement had the effect of taking the
total reservation under Article 16(4) to 65%.
“809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4)
of Article 16 should not exceed 50%.
“…811… It is well to remember that the reservations under
Article 16 (4) do not operate like a communal reservation. It may
well happen that some members belonging to, say Scheduled Castes
get selected in the open competition field on the basis of their
own merit; they will not be counted against the quota reserved
for Scheduled Castes; they will be treated as open competition
candidates.”
“813….It is however, made clear that the rule of 50% shall
be applicable only to reservation proper; they shall not be -
indeed cannot be – applicable to exemptions, concessions or
relaxations, if any provided to backward class of citizen’s under
Article 16(4)…”
15. There is no quarrel upto this stage. It is now well entrenched
principle of law that those members belonging to reserved category who get
selected in the open competition on the basis of their own merit have right
to be included in the general list/unreserved category and not to be
counted against the quota reserved for Scheduled Caste. This was
recognized by the Constitutional Bench judgment of this Court in Indira
Sawhney (supra) and has been followed in series of judgments thereafter.
Thus, when certain persons belonging to reserved category get selected in
open competition on the basis of their merit, they are not to be counted
in the reserved category against the reserved category quota. It is open to
the authorities to fill the posts meant for reserved category candidates
from amongst the persons in such categories after excluding those who have
found their place in general merit. As a fortiori, while calculating the
limit of 50% reservation, those candidates belonging to reserved category
who have found their place on the basis of their merit competing with
general candidates are not to be taken into consideration. It is also not
in dispute that such OBC/SC candidates who have been included in general
category have come in that category on their own merit with no relaxation
of the eligibility level i.e. percentage of marks. However, the objection
of Mr. Lahoti, learned counsel for the petitioner, was to the method of
counseling which was adopted in the present case as that has come, no
doubt, above to the persons in reserved categories. He submitted that as
per para 4 of the counseling letter choice was given to SC/ST/OBC
candidates who had taken admission in the open competition, to opt for a
better Institution of their choice for which he/she would have been
eligible as per the rules of reservation. This, according to him, was
impermissible as once a candidate in reserved category had taken admission
under the open competition, he could not have been given a choice for
better Institution on the premise that he/she will be governed by Rules of
reservation. For this reason, he took strong objection to the note
appended to para 4 of the counseling letter as well which facilitated this
process. He, thus, submitted that the counseling letter/circular was
opposed to the provision made in the prospectus and was also contrary to
the judgment of this Court in Union of India vs. Ramesh Ram & Ors. (2010) 7
SCC 234.
16. Learned counsel for the respondent, on the other hand, maintained
that 50% quota had not been breached and what was done in fact was inter se
adjustment among those who belong to reserved class i.e. those who were
selected on their own merit and found their way into general category vis-a-
vis those who were admitted on the basis of reservation provided in the
respective reserved categories. He argued that this was necessary as
otherwise those persons from reserved category who was more meritorious
would be in a disadvantageous position vis-à-vis those who secured
admission on the basis of relaxed standard under the reserved quota meant
for them. His submission was that this was approved by this Court in the
case of Yoganand Vishwasrao Patil vs. State of Maharashtra (2005) 12 SCC
311.
17. We have considered the submissions of counsel of both the parties.
At the outset, we would like to point out that in the present case, we are
dealing with the case of admission with medical course, and the position
which we are going to explain in the subsequent paragraphs is confined to
cases of admissions and not appointment into the service under the
Government. Further, this applies only to MBBS Course and not Post
Graduate Courses. Further, we are concerned herein admission process in
Seven AIIMS only and the position explained does not relate to those cases
where their admissions are in different colleges.
18. With this clarification, we proceed to deal with the issue.
19. It is stated at the cost of the repetition that those members who
belong to reserved category but get selected in the open competition on the
basis of their own merit have a right to be included in the
general/unreserved category. Such MRC not to be included in the quota
reserved for Scheduled Caste etc. It is an admitted position that if these
persons are excluded, the respondents have not exceeded the quota meant for
reserved category. The respondents, at the time of counseling, have only
accorded a higher/better choice to these meritorious reserved candidates
(MRC) who got recommended against general/unreserved seats vis-à-vis those
reserved category candidates who are accommodated against their quota. It
is, therefore, an inter-se adjustment between the two kinds of persons
belonging to reserved category. In their inter-se merit, these persons who
have been able to find their place in general list on account of their
merit are definitely better placed than those candidates who are selected
in the reserved category, though both types of candidates belong to
reserved category. Thus, if between these two categories of persons
belonging to same class, higher choice is not given to the persons who are
better in merit viz. the MRCs, it would clearly be injustice to them. This
was precisely the issue which was referred for decision to the Constitution
Bench in the case of Ramesh Ram (supra). In paragraph 3 of the judgment,
the Constitution Bench stated the question which was referred for its
decision and, the same reads as follows:
“Whether candidates belonging to reserved category, who get
recommended against general/unreserved vacancies on account of
their merit (without the benefit of any relaxation/concession),
can opt for a higher choice of service earmarked for reserved
category and thereby migrate to reserved category.”
20. In the light of the submissions made by the counsel for the parties,
the Court framed three questions which had arisen for consideration and the
same are as under:
I.Whether the reserved category candidates who were
selected on merit (i.e. MRCs) and placed in the list of general
category candidates could be considered as reserved category
candidates at the time of “service allocation”?
II.Whether Rules 16(2),(3),(4) and (5) of the CSE Rules
are inconsistent with Rule 16(1) and violative of Articles
14,16(4) and 335 of the Constitution of India?
III.Whether the order of the Central Administrative
Tribunal was valid to the extent that it relied on Anurag Patel
vs. U.P.Public Service Commission (which in turn had referred to
the judgment in Ritesh R.Sah v. Dr.Y.L.Yamul, which dealt with
reservations for the purpose of admission to postgraduate medical
course); and whether the principles followed for reservations in
admissions to educational institutions can be applied to examine
the constitutionality of a policy that deals with reservation in
civil services.”
21. Dealing with the first question which directly arises in the present
case, the Court clarified that a distinction is to be maintained between
the cases dealing with the admission to educational institutions and
appointment to a service. The Court accepted the general proposition that
such a course of action affords a meritorious reserved candidates (MRC),
the benefit of reservation in so far as service allocation is concerned, if
this is not done, lesser meritorious reserved candidates would be able to
secure better discipline. Therefore, this course of action preserves and
protects inter-se merit amongst the reserved candidates.
22. No doubt, while doing so, the Court was of the opinion that such
meritorious reserved candidates (MRC) who avail the benefit of Rule 16(2)
of the Civil Services Examination Rules (which permitted such inter-se
transfer) and are eventually adjustment in the reserved category, they
should be counted part of reserved category for the purpose of computing
aggregate reservation quota. However, it was categorically stated that
this proposition applies when there is an appointment to a service under
the State and categorically excluded the cases of admission in educational
institutions. In so far as admission in educational institutions is
concerned, such a MRC was to continue to be treated as belonging to
general category, which position he attained because of his initial merit.
The Court noted that this was so held in Ritesh R.Sah v. Dr. Y.L.Yamul
(1996) 3 SCC 253.
23. The question in that case was
whether a reserved category candidate
who is entitled to be selected for admission in open competition on the
basis of his/her own merit should be counted against the quota meant for
the reserved category or should he be treated as a general candidate. The
Court reached the conclusion that when a candidate is admitted to an
educational institution on his own merit, then such admission is not to be
counted against the quota reserved for Schedule Castes or any other
reserved category. It was so held in the following words:
“……In view of the legal position enunciated by this Court in the
aforesaid cases the conclusion is irresistible that a student
who is entitled to be admitted on the basis of merit though
belonging to a reserved category cannot be considered to be
admitted against sets reserved for reserved category. But at the
same time the provisions should be so made that it will not work
out to the disadvantage of such candidate and he may not be
placed at a more disadvantageous position than the other less
meritorious reserved category candidates. The aforesaid
objective can be achieved if after finding out the candidates
from amongst the reserved category who would otherwise come in
the open merit list and then asking their option for admission
into the different colleges which have been kept reserved for
reserved category and thereafter the cases of less meritorious
reserved category candidates should be considered and they be
allotted seats in whichever colleges the seats should be
available. In other words, while a reserved category candidate
entitled to admission on the basis of his merit will have the
option of taking admission in the colleges where a specified
number of seats have been kept reserved for reserved category
but while computing the percentage of reservation he will be
deemed to have been admitted as an open category candidate and
not as a reserved category candidate.”
24. Since, we are concerned with the admission to medical course,
aforesaid judgment squarely applies to the present case. Thus we find
that neither upper limit of 50% reservation is breached, nor any rights of
the petitioners are violative or the action of the respondents have been to
their prejudice in any manner. Thus, we do not find any merit in the
present petition, which is accordingly dismissed. No costs.
………………………………….J.
(K.S.Radhakrishnan)
…………………………………J.
(A.K.Sikri)
New Delhi,
December 11, 2013
