High Court of H.P. IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

C.W.P. No.: 6124 of 2013

and

CWP No.: 6697 of 2013

Reserved on: 3.09.2013.

Pronounced on: 26.09.2013 .

_________________________________________________

CWP No.6124 of 2013

:

Sandeep Parekh …… Petitioner

Versus

State of H.P. and others …..Respondents

CWP No.6697 of 2013:

Sharath Babu N.M. …… Petitioner

Versus

State of H.P. and others …..Respondents

___________________________________________________________

Coram:

The Hon’ble Mr. Justice A.M. Khanwilkar, Chief Justice.

The Hon’ble Mr. Justice Kuldip Singh, Judge.

Whether approved for reporting? Yes.

_____________________________________________________________

For the petitioner(s): Mr.Ajay Mohan Goel and Mr.Onkar

Jairath, Advocates.

For the respondents : Mr. Shrwan Dogra, A.G. with Mr.

Romesh Verma & Mr.Anup Rattan, Addl.

A.Gs., and Ms. Parul Negi, Dy. A.G.

for respondents-State.

Mr.Dilip Sharma, Senior Advocate, with

Ms.Nishi Goel, Advocate, for respondent-

University.

Mr.B.C. Negi, Advocate, for respondent

No.4 in both the petitions.

___________________________________________________________

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Justice A.M.Khanwilkar, C.J.

Both these petitions filed under Article 226 of the

Constitution of India take exception to the admission process in

respect of super speciality seats in D.M. (Cardiology) in Indira

Gandhi Medical College (hereinafter referred to as IGMC), Shimla

for the academic session 2013. On 6

th

June, 2013, the

Controller of Examinations issued notice of entrance test for

admission to D.M. (Cardiology) and M.Ch. (CTVS) courses-2013

notifying admission to two seats each in D.M. (Cardiology) and

M.Ch. (CTVS) Courses in IGMC, Shimla. The eligibility condition

in the said notice is stated thus:

“ELIGIBILITY CONDITIONS:

50% seats

will be filled up by Bonafide Himachali In-

Service Medical Officer (HPHS) Health cadre candidates who

are either appointed on regular or contract. The bonafide

contractual Medical Officers working through Rogi Kalyan

Samities are also eligible to appear in the Entrance Test for

admissions to the above courses if they possess the Service

Conditions as prescribed in the Prospectus at Clause 2.1.

Remaining 50% seats

will be available for open competition

from amongst Bonafide Himachali who have done PG from

IGMC, Shimla/ Dr.RPGC, Kangra, at Tanda or from any

Institute recognized by MCI.

The In-Service candidates are required to submit

their application through proper channel or must attach ‘No

Objection Certificate’ from the competent authority

alongwith Application Form so as to reach in the University

Office on or before the last date for submission of

Application Form.

Education Qualification: The candidates should have

passed/appeared in MD/MS (Allopathy) examination in the

concerned subject as mentioned below or equivalent degree

(s) duly recognized by the Medical Council of India and

registered with the Central or State Medical Council:

i) DM (Cardiology) Course: The candidate(s)

should have passed/appeared in MD

examination in Medicine or Paediatrics.

ii) M.CH (CTVS) Course: The candidate(s) must

have passed/appeared in MS examination in

General Surgery.

Note: The upper age limit for the Direct candidates and for

the In-Service GDO’s will be 40 years and 45 years

respectively as on 1

st July, 2013.”

(emphasis supplied)

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2. The Himachal Pradesh University, Shimla issued

prospectus-cum-application form for entrance test – 2013 on

behalf of the Government of Himachal Pradesh. The eligibility

criteria specified in the prospectus provided in clause 2 thereof,

which reads thus:

“2. ELIGIBILITY

2.1 In –service Group (GDO Quota)

50% will be filled up by bonafide Himachali In-Service Medical Officer

(HPHS) Health cadre candidates who are either appointed on regular or

on contract. The bonafide contractual Medical Officer working through

Rogi Kalyan Samities are also eligible to appear in the Entrance for

Admission to D.M. (Cardiology) /M.Ch (CTVS), if they possess following

service:

Category Area Mandatory

service period I Pangi Sub Division, entire Lahaul & Spiti

Distt., Pooh area of Kinnaur Distt. (Pooh

Tehsil & Hangrang Sub Tehsil) and

Dodra Kwar Su-

Division of Distt. Shimla

2 years

II Distt. Kinnaur (excluding Tehsil Pooh and

Hangrang Sub Tehsil) and Bharmour

Sub-Division of Distt. Chamba,

Development Block of Chopal, Chuhra

(excluding Dodra-Kawar area) Sangarh,

Saraj, Anni, Tissa & Chhota Bhangal of

Multan Tehsil and Bara Bangal area

(Baijnath Block).

3 years

III Development Blocks Shillai, Jubbal

Kotkhai, Salooni, Rohru, Nankhari &

Karsog

3 years

IV Other areas of the State (excluding the

above and Below)

4 years

V Within the limits of Shimla Municipal

Corporation, within the limits of Municipal

Corporation Solan and within Baddi-

Barotiwala- Nalargarh notified area.

5 years

NOTE: In case a Medical Officer has served in more than one above

category of area, the mandatory service period will be calculated on pro-

rata basis.

2.2. DIRECT QUOTA

50% seats will be available for open competition from amongst:-

(i) Bonafide Himchali who have done Postgraduation from Indira Gandhi

Medical College, Shimla /Dr. RPGMC, Kangra at Tanda .

(ii) Bonafide Himachalies who have done Post graduation from any

institute recognized by MCI.

2.3. NUMBER OF SEATS

2.4. DISTRIBUTION OF SEATS

(i) Distribution of seats between (GDO’s) in-service group and

Direct group will be made by applying 2 point roster in the ratio

50:50 (speciality-wise) as under:-

1. H.P.H.S. (GDO group), 2. Direct group 3. H.P.H.S. (GDO group) 4.

Direct group.

However, in case of non-availability of eligible candidate in one

group the same will be filled by the other group and vice versa.

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There will be no reservation of seats for SC, ST and other reserved

categories.

(ii)There will be separate merit list for In-service and Direct group

(speciality-wise)

2.5. QUALIFICATION & OTHER CONDITIONS/REQUIREMENTS FOR

ADMISSION

(i) The candidate must have passed M.D. Medicine or MD Paediatrics

Degree for admission to D.M. (Cardiology) Course and M.S. General

Surgery for admission to M.ch (CTVS) Course or its equivalent degrees

duly recognized by the Medical Council of India provided the candidate

who have appeared in these courses /examinations and the result of

which has not yet been declared may also apply subject to the conditions

that they will produce the degree at the time of Counselling .

(ii) The upper age limit for the direct candidates will be 40 years of age

as on 1

st July, 2013 , provided however, in case of In-service GDO’s

candidates, the upper age limit will be 45 years as on 1

st

July 2013 .

(iii) The candidate must have registered with the Central or State Medical

Council.

(iv) The In-service candidates are required to submit their application

through proper channel or must attach “No objection Certificate” from

their Employer alongwith application form so as to reach the University

on or before the last date for submission of Application form.”

3. For deciding the controversy brought before us, it may

be useful to also reproduce addendum to above said notice of

entrance test, dated 9

th

July, 2013, issued by the Controller of

Examinations. The same reads thus:

“Himachal Pradesh University

‘Entrance Test Section”

Summer Hill, Shimla ‐171005

No.HPU.DM/MCH (Super Speciality) ET/2013

Dated: 9

th

of July, 2013

ADDENDUM TO NOTICE OF ENTRANCE TEST FOR ADMISSION TO DM

(Cardiology) & M.Ch (CTVS) COURSES‐ 2013.

In partial modification to this office notice dated 6.6.2013, the

schedule for Entrance Test for admission to DM (Cardiology) and M.Ch

(CTVS) Courses has been changed in view of the revised eligibility

Criteria received from the State Govt. and now the Entrance Test for the

same will be held on 21‐07‐2013 (Sunday) in IGMC premises Shimla.

The revised schedule for conducting the Entrance Test is as follows:

1. Last date for receipt of application forms in the Entrance

Tests Section, H.P. University, Shimla‐171005

16.07.2013

2 Issuance of Admit Card/Roll Nos to the Candidates

personally or by their authorised representatives from the

office of the Deputy Registrar, Entrance tests Section,

Room No.10, Administrative Block, ( Ground Floor) H.P.

University, Summer Hill, Shimla‐171005

18.07.2013

11.00 A.M. to 4.00 P.M.

3 Date of Entrance Tests at Indira Gandhi Medical College,

Shimla

21.07.2013( Sunday)

4 Tentative date for displaying the list of candidates called

for Practical/Clinical Exam in the University Notice Board

and Website

23.07.2013

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5 Date of Practical Examinations 24.07.2013 &

25.07,2013 at 11.00 am

sharp

6. Declaration of Result and Merit List 27.07.2013

7. Date of 1

st

round Counselling at New Examination Hall,

IGNC, Shimla.

29.07.2013

8. Last date of joining for the candidates admitted in 1

st

round of Counselling to the allotted Course.

30.07.2013

9. Commencement of Academic Session 1

st

of August, 2013

10. Last Date up to which students can be admitted against

vacancies arising due to any reason at Indira Gandhi

Medical College, Shimla

30.9.2013

Besides this, the Eligibility Criteria for In‐Service Candidates in

Clause 2.1 has been amended as under:

“ 50% seats will be filled‐up by In‐Service medical Officer ( HPHS) Health

Cadre candidates ( Regular /Contract/RKS appointees). The contractual

Medical Officer working through Rogi Kalyan Samities are also eligible to

appear in the Entrance for admission to D.M.

(Cardiology/M.ch(CTVS), if they possess service mentioned in the

prospects.”

Sd/ ‐

( Dr. Narendra Awasthi)

Controller of Examinations.”

(emphasis supplied)

4. As a result of this notification, the eligibility condition

qua in-service candidates has been modified to be simplicitor

“in-service medical officer (HPHS) Health Cadre candidates

(Regular/Contract/RKS appointee)”. The original condition of

being a bonafide Himachali in respect of in-service candidate has

been done away with.

5. In both these petitions, admittedly, the petitioners are

neither bonafide Himachalis nor in-service candidates.

Pursuant to the aforesaid notice, both of them were keen on

being admitted to super speciality course in D.M. (Cardiology).

6. In Writ Petition No.6124 of 2013, the petitioner

secured MBBS degree from Jawahar Lal Institute of Post

Graduate Medical Education and Research (Pondicherry

University). He then did M.D. in General Medicine from

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Kasturba Medical College, Mangalore, affiliated to Manipal

Academy of Higher Education (deemed to be a University under

UGC Act No.3, 1956) in April, 2010. He then served in the

Department of Cardiology in Indira Gandhi Medical College and

Hospital, Shimla as Registrar from 2

nd

August, 2010 to 31

st

July,

2011. He left the Registrarship on account of ill health of his

father. He had applied for admission to the said Course even in

the previous academic session pursuant to entrance test notice

dated 30

th

May, 2012. He was considered and was shown at

Sl.No.9 amongst the ten eligible candidates, but could not be

admitted for want of seats. He has asserted that pursuant to the

aforesaid notice for admission to D.M. (Cardiology), dated 6

th

June, 2013, he intended to participate in the admission process,

but his form was not accepted on the ground that he was a Non-

Himachali, vide communication dated 20

th

July, 2013 issued

under the signature of Deputy Registrar (Entrance Tests).

7. It is admitted that the said admission process

continued further in which Dr.Vivek Rana was selected against

one seat earmarked for bonafide Himachali. As no candidate

was found eligible qua the second seat for D.M. (Cardiology)

Course earmarked for in-service candidate, the Controller of

Examinations issued notice of special entrance test for

admission to D.M. (Cardiology) Course – 2013, dated 3

rd

August,

2013, which reads thus:

“Himachal Pradesh University

“Entrance Tests Section”

Summer Hill, Shimla- 171005.

No.HPU.DM/MCH(Super Speciality)Special ET/2013

Dated: 3

rd of August, 2013

NOTICE OF SPECIAL ENTRANCE TEST FOR

ADMISSION TODM (Cardiology) & M.Ch (CTVS)

COURSES - 2013

.

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An MCQ type Special Entrance Test for admission to unfilled one

seat in DM (Cardiology) and 2 seats in MCh (CTVS) Courses in

Indira Gandhi Govt. Medical College & Hospital, Shimla will be

held on 25-08-2013( Sunday ) at IGMC premises.

ELIGIBILITY CONDITIONS

One seat in DM ( Cardiology ) and one seat in MCh ( CTVS ) will

be filled – up by In- Service Medical Officer ( HPHS ) Health

cadre candidates ( Regular/ Contract/ RKS appointees ). The

contractual Medical Officers working through Rogi Kalyan

Samities are also eligible to appear in the Entrance Test for

admissions to DM ( Cardiology )/ Mch (CTVS) if they possess the

Service Conditions as prescribed in the Prospectus at Clause 2.1.

Remaining one seat in MCh (CTVS) Course will be available for

open competition from amongst Bonafide Himachali who have

done PG from IGMC, Shimla / Dr. RPGC, Kangra, at Tanda or

from any Institute recognized by MCI. However, in case of non-

availability of eligible candidate in one group, the same will be

filled up by the other group and Vice-Versa.

The In-Service candidates are required to submit their

application through proper channel or must attach ‘No

Objection Certificate’ from the competent authority along with

Application Form so as to reach in the University Office on or

before the last date for submission of Application Form.

Educational Qualifications

: The candidates should have passed/

appeared in MD/MS (Allopathy) examination in the concerned

subject as mentioned below or equivalent degree(s) duly

recognized by the Medical Council of India and registered with the

Central or State Medical Council:

i) DM (Cardiology) Course: The candidate(s) should have

passed / appeared in MD examination in Medicine or

Pediatrics.

ii) M.CH(CTVS) Course: The candidate(s) must have

passed/ appeared in MS examination in General Surgery.

Note: The candidate(s) appearing in qualifying examination will

have to submit the copy of degree on the day of Counselling.

Age: The upper age limit for the Direct candidates and for the In-

Service GDO’s will be 40 years and 45 years respectively as on 1

st

July, 2013.

PROCEDURE FOR OBTAINING THE PROSPECTUS

:

(i) Downloading from the University websites: The Prospectus-

cum – Application form shall be downloaded from University

Website i.e. www.hpuniv.nic.in or from www.hpuniv.in and such

forms duly filled in should accompany the Prospectus / Entrance

Test Fee of Rs.3500/- in the shape of Demand Draft drawn in

favour of Finance Officer, H.P. University, Shimla while

submitting the same in the University.

Note : It will be the entire responsibility of the candidates to

procure the prospectus and submit the Application Form within the

stipulated date. The University will not be responsible for any

lapse/ delay for non-receipt/ misplacement of Application Form in

transit.

Last Date: The Application Forms complete in all respect along

with requisite documents and fee must reach the office of Deputy

Registrar(Entrance Tests), Room No.10, Ground Floor,

Administrative Block, H.P. University, Shimla-171005 latest by

20-08-2013 up to 5.00 P.M. either personally or through speed

post.

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PROCEDURE FOR OBTAIN ING ADMIT CARD/ ROLL

NUMBER: The Provisional Admit Card /Roll Numbers to the

eligible candidates will be issued to the candidates or their

authorized representative on 24-08-2013 from 11.00 A.M. to 1.00

P.M. by the office of the Deputy Registrar(Entrance Tests),

Room No.10, Ground Floor, Administrative Block, H.P.

University, Shimla-171005.

All disputes are subject to legal jurisdiction of courts in

Shimla only.

Sd/-

( Dr. Narendra Awasthi )

Controller of Examinations”

8. As per this notice, the aspirants were expected to

submit application forms complete in all respects alongwith the

requisite documents latest by 20

th

August, 2013. The petitioner

(in the first petition), however, in the meantime, rushed to this

Court by way of present writ petition filed on 6

th

August, 2013.

After two adjournments, on 21

st

August, 2013, this Court

directed the respondents to permit the said petitioner to appear

in the examination to be held on 25

th

August, 2013, but on

condition that his result was to be made subject to the outcome

of the petition. The said petitioner accordingly appeared in the

examination. Notably, this petitioner has not challenged the

admission given to Dr.Vivek Rana in the direct quota being

bonafide Himachali; nor Dr.Vivek Rana has been impeladed as

respondent in the writ petition. As a matter of fact, in para 10 of

the Writ Petition, this petitioner has expressly given up the

challenge to the admission of Dr.Vivek Rana. Be that as it may,

during the pendency of the writ petition, the other candidates,

who had applied pursuant to the notice of special entrance test,

dated 3

rd

August, 2013, have moved application for intervention

asserting that if the relief claimed by the petitioner were to be

granted, that would, inevitably, impact the quota prescribed for

admission to Post Graduate Courses from amongst in-service

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General Duty Officers (GDOs), which was legitimate provision

made for them.

9. The State Government as well as the University has

contested the petition and would submit that it is always open to

provide for independent source such as for in-service candidates

and such provision is constitutionally permissible and moreso

because there is shortage of super speciality doctors in the State

of Himachal Pradesh and to ensure best patient care services

and super specialist services to the people of the State, the State

Government took a conscious decision to reserve (DM/M.Ch.)

seats for in-service GDOs and bonafide Himachali only.

10. The broad facts even in the second petition (CWP

No.6697 of 2013) are similar. Even in this case, the petitioner

did his MBBS and internship from J.J.M. Medical College

Davangere under Rajiv Gandhi University of Health Sciences in

March, 2009 and thereafter registered with Karnataka Medical

Council. This petitioner did M.D. in General Medicine from

IGMC, Shimla under Himachal Pradesh University in the month

of June, 2013. Thereafter, he got himself registered with

Himachal Pradesh Medical Council, Shimla. Pursuant to the

notice, dated 6

th

June, 2013, even this petitioner intended to

apply, but his application was rejected without giving anything

in writing. It is asserted by this petitioner that his application

was rejected presumably on the same ground as in the case of

Sandeep Parekh, being a non-bonafide Himachali. Although this

petitioner has adverted to the fact that Dr.Vivek Rana has been

admitted against one seat being bonafide Himachali, even this

petitioner has not impleaded him as respondent, nevertheless

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has sought general relief for declaring the act of the respondent-

State and the University of not affording super speciality seats in

D.M. (Cardiology) in IGMC by way of open competition on merit

and reserving the same for bonafide Himachali eligible

candidates and in-service candidates of HPHS cadre as per

prospectus-cum-application form for admission to D.M.

(Cardiology) Course – 2013 in IGMC, Shimla. Even this

petitioner has challenged the notice for special entrance test

dated 3

rd

August, 2013 and rejection of candidature of the

petitioner being bad in law and to issue writ to the extent the

seats in super speciality course in D.M. (Cardiology) in IGMC,

Shimla have been reserved for bonafide Himachali candidates

and in-service candidates. Even this petitioner has prayed for

further relief to direct the respondents to fill the remaining one

seat of super speciality course in D.M. (Cardiology) in IGMC,

Shimla advertised vide notice dated 3

rd

August, 2013 on the

basis of merit alone and allow the petitioner to participate in

MCQ Type Test to be held on 25

th

August, 2013 for admission to

the said seat and thereafter admit him to the super speciality

course in D.M. (Cardiology) in IGMC, Shimla, if he is able to get

admission on merit. This petition has been filed on 22

nd

August, 2013. It was listed before the Court on 23

rd

August,

2013, when interim relief on same term as in the companion

matter, was granted. In other words, even this petitioner

appeared in the entrance examination conducted on 25

th

August, 2013 on same terms.

11. In both these petitions, reliance is mainly placed on

the dictum of the Apex Court that admission to Post Graduate

and Super Speciality Course such as Cardiology, there should be

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no reservation at all including on the basis of intuitional

preference and admission should be granted purely on merit, on

all India basis. This observation is found in the decision of the

Apex Court in Dr. Pradeep Jain and others vs. Union of India

and others

1

, and restated by the Constitution Bench of the Apex

Court in the case of Dr.Preeti Srivastava and another vs. State

of M.P. and others

2

.

12. This plea has been countered by the respondents on

the argument that the issue in the present petitions is now

limited to the seat earmarked for in-service candidate, which is

an independent source and it is open to the State to provide for

quota for the in-service candidates, even in respect of Post

Graduate and Super Speciality Courses. That is constitutionally

permissible being a case of classification. It is, therefore, not a

case of reservation as such, which will be hit by Articles 14, 15

or 16 of the Constitution. Further, in the guise of challenge to

the admission process in respect of one seat of D.M. (Cardiology)

earmarked for in-service candidate, the petitioners cannot be

permitted to assail the basis of provision made in respect of the

seat against which Dr.Vivek Rana has already been admitted

being bonafide Himachali. The petitioners in both these cases

can confine their challenge only to the process commenced on

the basis of re-advertisement, dated 3

rd

August, 2013, for one

seat of D.M. (Cardiology) earmarked for in-service candidate. As

regards that challenge, the decisions of the Apex Court relied

upon by the petitioners to urge that the admissions to the Post

Graduate and Super Speciality Courses should be granted

1

(1984) 3 SCC 654

2

(1999) 7 SCC 120

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purely on merit, on all India basis and no reservation therefor is

permissible, would be of no avail. Further, the petitioners did

not submit application pursuant to the re-advertisement, dated

3

rd

August, 2013, and even for that reason cannot be permitted

to challenge the admission process.

13. Taking the last contention of the respondents first, we

are not inclined to non-suit the petitioners on this technical

argument in the fact situation of the present case. Inasmuch as,

at least in respect of the first petitioner, he had approached this

Court on 6

th

August, 2013 and the matter was required to be

adjourned for filing reply, which, in turn, was listed on 21

st

August, 2013. Until passing of the order, dated 21

st

August,

2013, the respondents did not even remotely indicate that the

petition be entertained only if the petitioner was to submit

application before 20

th

August, 2013. Had that stand been

taken, we have no manner of doubt that the petitioner would

have immediately complied with that requirement. Since this

being hyper technical objection, we are of the considered opinion

that the same deserves to be stated to be rejected.

14. Reverting to the main issue under consideration, there

could be no doubt that the Apex Court in Pradeep Jain’s case

(supra), in paragraph 22, in no uncertain terms, observed that

admissions to Post Graduate and Super Speciality Courses such

as Cardiology, no reservation at all, even on the basis of

institutional preference, is permissible and admission should be

granted purely on merit, on all India basis. This has been

restated by the Constitution Bench of the Apex Court in the case

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of Dr.Preeti Srivastava (supra). In paragraphs 68 and 69, the

Court expounded thus:

“68. In the case of Dr. Jagdish Saran v. Union of India (AIR

1980 SC 820) this Court observed that at the highest scales

of specialty, the best skill or talent must be hand-picked by

selection according to capability. Losing a potential great

scientist or technologist would be a national loss. That is

why the Court observed that the higher the level of education

the lesser should be the reservation. There are similar

observations in Dr. Pradeep Jain v. Union of India (AIR 1984

SC 1420). Undoubtedly, Dr. Pradeep Jain v. Union of India

did not deal with reservation in favour of the Scheduled

Castes and the Scheduled Tribes. It dealt with reservation in

favour of residents and students of the same University.

Nevertheless it correctly extended the principle laid down in

Dr. Jagdish Saran v. Union of India (supra) to these kinds of

reservation also, holding that at the highest levels of medical

education excellence cannot be compromised to the

detriment of the nation. Admissions to the highest available

medical courses in the country at the super-specialty levels,

where even the facilities for training are limited, must be

given only on the basis of competitive merit. There can be no

relaxation at this level.

69. Indra Sawhney v. Union of India has also observed that

in certain positions at the highest level merit alone counts.

In specialties and super-specialties in medicine, merit alone

must prevail and there should not be any reservation of

posts. The observations in Indra Sawhney v. Union of India

(1992 AIR SCW 3682 : AIR 1993 SC 477 : 1993 Lab IC 129)

were in respect of posts in the specialties and super-

specialties in medicine. Nevertheless, the same principle

applies to seats in the specialties and super-specialties in

medicine. Moreover, study and training at the level of

specialties and super-specialties in medicine involve

discharging the duties attached to certain specified medical

posts in the hospitals attached to the medical institutions

giving education in specialties and super-specialties. Even

where no specific posts are created or kept for the doctors

studying for the super-specialties or specialties, the work

which they are required to do in the hospitals attached to

these institutions is equivalent to the work done by the

occupants of such posts in that hospital. In this sense also,

some of the considerations under Art. 16(4) read with Art.

335 rub off on admissions of candidates who are given seats

for specialty and super-specialty courses in medicine. Even

otherwise under Art. 15(4) the special provisions which are

made at this level of education have to be consistent with the

national interest in promoting the highest levels of efficiency,

skill and knowledge amongst the best in the country so that

they can contribute to national progress and enhance the

prestige of the nation. The same view has been upheld in Dr.

Fazal Ghafoor v. Union of India (1988) Supp SCC 794 : (AIR

1989 SC 48) and Mohan Bir Singh Chawla v. Punjab

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University, (1997) 2 SCC 171 : (1997 AIR SCW 609 : AIR

1997 SC 788).”

15. However, as aforesaid, in the present petitions, we can

permit the petitioners only to agitate the validity and justness of

the admission process in respect of one seat of D.M. (Cardiology)

earmarked for in-service candidate as specified in notification

dated 3

rd

August, 2013 and nothing more. The respondents are

justified in relying on the decision of the Apex Court in the case

of Kumari Chitra Ghosh and another vs. Union of India and

others

3

to contend that if the sources have been classified in

proper manner having rational nexus with the object of

imparting medical education and also for selection for the

purpose and such classification is based on intelligible

differentia, which distinguishes them from the group of persons

left out is permissible. Indeed, in that case, the issue was in

respect of pre medical examination of the Delhi University for

admission to first year MBBS Course. The question is – whether

the principle underlying the permissibility of classification based

on intelligible differentia can be applied even to Post Graduate

and Super Speciality Courses, as is contended.

16. The Apex Court while dealing with the case of

admission to Post Graduate Medical Course, in the case of

Dr.Jagadish Saran and others vs. Union of India

4

examined

the challenge to provision for ‘institutional quota’ “upto 70% of

the seats” whether was violative of Articles 14 to 16 of the

Constitution. In the present case, it is not a matter of

“institutional quota” amounting to reservation under Article

15(4) or 16(4) as such, but a 50% provision made for the in-

3

(1969) 2 SCC 228

4

(1980) 2 SCC 768

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High Court of H.P. 15

service candidates. That cannot be considered as excessive.

The petitioner in the first petition was in service but he had left

the Registrarship on 31

st

July, 2011 and was, admittedly, not in

service whilst he made application pursuant to the

advertisement in question.

17. In the case of K.Duraisamy and another vs. State of

T.N. and others

5

, the three Judges Bench of the Apex Court

considered the question regarding 50% quota in favour of in-

service candidates in respect of Super Speciality Courses, as in

the present case. Although it held that the consistent and

authoritatively settled view of the Apex Court that at the Super

Speciality level in particular, and even at the Post Graduate

level, reservations of the kind known as “protective

discrimination” in favour of those considered to be backward

should be avoided as not permissible; but went on to observe

that allocation of seats for admission in the form of quota

amongst in-service candidates is not in the nature of reservation

envisaged under Article 15(4) or 16(4) as such. In this decision,

the Court was called upon to consider the opinion of the Full

Bench of the Madras High Court. In paragraph 8, it has been

observed that the Government possesses the right and authority

to decide from what sources the admissions in educational

institutions or to particular disciplines and courses therein have

to be made and that too in what proportion. That was well

established proposition of law. It then observed that reservation

for and in favour of the in-service candidates cannot be equated

or treated at par with communal reservation envisaged under

Article 15(4) or 16(4), which are extended as special mechanics

5

(2001) 2 SCC 538

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High Court of H.P. 16

of their implementation to ensure such reservations to be the

minimum by not counting those selected in open competition on

the basis of their own merit as against the quota reserved on

communal considerations. It is then observed in paragraph 12

that provision for in-service candidates is to safeguard the

interests of candidates who are already in service to enable them

to acquire higher talents for the benefits of the patients to be

treated in such Medical Institutions where the in-service

candidates are expected to serve. That scheme is not by way of a

mere reservation, but is one of classification of the sources from

which admissions have to be made.

18. In the present case, it is not possible to hold that 50%

provision made for in-service candidates was excessive. Further,

provision is made for definite and fixed quota for the respective

classified source of admission. No doubt, the argument of the

petitioners proceeds that for the academic session 2013, only

two posts of D.M. (Cardiology) were available and the manner in

which the same were to be filled, would result in 100%

reservation. In that, one seat was already filled by bonafide

Himachali candidate and non-Himachali candidates were

completely excluded from consideration. The second post

available for D.M. (Cardiology) Course -2013 would now be filled

from amongst in-service candidate.

19. However, for considering the grant of relief to the

petitioners as has been noted earlier, we have to examine

whether 50% quota for in-service candidates is constitutionally

permissible or otherwise. Examining any other matter would

inevitably result in allowing the petitioners to question the

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High Court of H.P. 17

admission given to Dr.Vivek Rana against the second seat of

D.M. (Cardiology) in the category of bonafide Himachalis. That

is not in issue in these petitions. For the same reason, it is not

necessary to dilate on the argument of the respondents that by

addendum issued on 9

th

July, 2013, the condition of bonafide

Himachali has been done away with in respect of 50% seats to

be filled up from amongst in-service Medical Officers (HPHS)

Health Cadre candidates (regular/contract/RKS appointees).

20. Suffice it to observe that the dictum of the Apex Court

in the cases of Dr.Pradeeep Jain’s and Dr.Preeti Srivastava’s will

have no application to the available seat of D.M. (Cardiology) to

be filled from amongst the in-service candidates, which is to the

extent of 50% of the seats available for D.M. (Cardiology) Course

– 2013.

21. In the case of Pradeep Jain (supra), the question

considered was no doubt with regard to admission to Post

Graduate Course, but it was in respect of reservation on the

basis of domicile or residential qualification within the State

irrespective of merit and not qua the quota provided for in-

service candidates. Even in the case of Preeti Srivastava (supra),

the question was in respect of providing reservation for

admission to Post Graduate Courses by prescribing different

qualifying marks for special category candidates seeking

admission under the reserved category. In paragraph 10 of the

said decision, the Court noted that it was not examining the

question whether reservations are permissible at the Graduate

level in Medicine. Suffice it to observe that the permissibility of

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High Court of H.P. 18

providing quota for in-service candidate was not the issue

considered in the aforesaid judgments.

22. That takes us to the unreported decision of the

Constitution Bench of the Apex Court in Faculty Association of

AIIMS vs. Union of India & others, in Civil Appeal No.4500 of

2002, decided on 18

th

July, 2013. Reliance is placed on

paragraphs 17 to 19 of this decision, which read thus:

“17. Although, the matter has been argued at some

length, the main issue raised regarding reservation

at the super-specialty level has already been

considered in Indra Sawhney’s case (supra) by a

Nine-Judge Bench of this Court. Having regard to

such decision, we are not inclined to take any

view other than the view expressed by the Nine-

Judge Bench on the issue. Apart from the

decisions rendered by this Court in Dr. Jagadish

Saran's case (supra) and Dr. Pradeep Jain’s case

(supra), the issue also fell for considerate in Preeti

Srivastava’s case (supra) which was also decided

by a Bench of Five Judges. While in Dr. Jagadish

Saran's case (supra) and in Dr. Pradeep Jain’s

case (supra) it was categorically held that there

could be no compromise with merit at the super

specialty stage, the same sentiments were also

expressed in Preeti Srivastava’s case (supra) as

well. In Preeti Srivastava’s case (supra), the

Constitution Bench had an occasion to consider

Regulation 27 of the Post Graduate Institute of

Medical Education and Research, Chandigarh

Regulations, 1967, whereby 20% of seats in every

course of study in the Institute was to be reserved

for candidates belonging to the Scheduled Castes,

Scheduled Tribes or other categories of persons, in

accordance with the general rules of the Central

Government promulgated from time to time. The

Constitution Bench came to the conclusion that

Regulation 27 could not have any application at

the highest level of super specialty as this would

defeat the very object of imparting the best

possible training to selected meritorious

candidates, who could contribute to the

advancement of knowledge in the field of

medical research and its applications. Their

Lordships ultimately went on to hold that there

could not be any type of relaxation at the

super specialty level.

18. In paragraph 836 of the judgment in Indra

Sawhney’s case (supra), it was observed that while

the relevance and significance of merit at the

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High Court of H.P. 19

stage of initial recruitment cannot be ignored, it

cannot also be ignored that the same idea of

reservation implies selection of a less meritorious

person. It was also observed that at the same time

such a price would have to be paid if the

constitutional promise of social justice was to be

redeemed. However, after making such

suggestions, a note of caution was introduced in

the very next paragraph in the light of Article 15

of the Constitution. A distinction was, however,

made with regard to the provisions of Article 16

and it was held that Article 335 would be relevant

and it would not be permissible not to prescribe

any minimum standard at all. Of course, the said

observation was made in the context of admission

to medical colleges and reference was also made

to the decision in State of M.P. Vs. Nivedita Jain

[(1981) 4 SCC 296], where admission to medical

courses was regulated by an entrance test. It

was held that in the matter of appointment of

medical officers, the Government or the Public

Service Commission would not be entitled to say

that there would not be minimum qualifying

marks for Scheduled Castes/Scheduled Tribes

candidates while prescribing a minimum for

others. In the very next paragraph, the Nine-

Judge Bench while discussing the provisions of

Article 335 also observed that there were certain

services and posts where either on account of the

nature of duties attached to them or the level in

the hierarchy at which they stood, merit alone

counts. In such situations, it cannot be advised to

provide for reservations. In the paragraph following,

the position was made even more clear when

Their Lordships observed that they were of the

opinion that in certain services in respect of

certain posts, application of rule of reservation

may not be advisable in regard to various

technical posts including posts in super specialty in

medicine, engineering and other scientific and

technical posts.

19. We cannot take a different view, even though it

has been suggested that such an observation was

not binding, being obiter in nature. We cannot

ascribe to such a view since the very concept of

reservation implies mediocrity and we will have

to take note of the caution indicated in Indra

Sawhney's case. While reiterating the views

expressed by the Nine-Judge Bench in Indra

Sawhney’s case, we dispose of the two Civil

Appeals in the light of the said views, which were

also expressed in Dr. Jagadish Saran's case, Dr.

Pradeep Jain's case, Dr. Preeti Srivastava's

case. We impress upon the Central and State

Governments to take appropriate steps in

accordance with the views expressed in Indra

Sawhney's case and in this case, as also the other

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High Court of H.P. 20

decisions referred to above, keeping in mind the

provisions of Article 335 of the Constitution.”

23. In this case, the Apex Court was called upon to answer

the reference as to whether reservation was inapplicable to

speciality and super speciality posts in All India Institute of

Medical Sciences and whether reservation policy was

inapplicable for making appointments to the entry level faculty

post of Assistant Professor and to super specialty posts and

whether the resolutions adopted by AIIMS on 11.1.1983 and

27.5.1994 were liable to be struck down. Even in this case, the

Court was not called upon to consider the constitutionality of

quota provided for in-service candidates. As has been observed

earlier, providing quota for in-service candidates cannot be

considered as reservation under Article 15(4) or 16(4).

24. In view of the above, the challenge to the admission

process in question with regard to one seat of D.M. (Cardiology)

earmarked for in-service candidates is devoid of merits and

hence these petitions should fail. The same are accordingly

dismissed, so also the pending application(s), if any.

( A.M. Khanwilkar )

Chief Justice

September 26 , 2013. ( Kuldip Singh )

(tilak) Judge.

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