BHAWNA GARG Vs UNIVERSITY OF DELHI .
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: C.A. No.-006304-006305 / 2012
Diary number: 7253 / 2012
Advocates: MISHRA SAURABH Vs
MOHINDER JIT SINGH
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 6304-6305 OF 2012 (Arising out of SLP (C) Nos. 8408-8409 of 2012)
Bhawna Garg & Anr. … Appellants
Versus
University of Delhi & Ors. … Respondents
AND
CIVIL APPEAL No. 6306 OF 2012 (Arising out of SLP (C) No. 13194 of 2012)
Kopal Rohtagi … Appellant
Versus
University of Delhi & Ors. … Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
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2. These are appeals against the common judgment and
order dated 23.12.2011 of the Division Bench of the High
Court of Delhi in Writ Petition (C) No.7103 of 2011 and
Writ Petition (C) No.4299 of 2011 declining to grant relief
to the appellants in the matter of admission to the MBBS
course in the medical colleges under Delhi University for
the academic session 2011-2012.
3. The facts very briefly are that the Delhi University issued
a Bulletin of Information for admissions to the Under-
Graduate Degree Courses for the academic session 2011-
2012 (for short ‘the Bulletin’). Para 2 of the Bulletin dealt
with admissions to MBBS course. Para 2.1.1 of the
Bulletin stated that the university conducts the MBBS
course in three Medical Colleges, namely, Lady Hardinge
Medical College (LHMC), Maulana Azad Medical College
(MAMC) and University College of Medical Sciences
(UCMS). Para 2.1.1 of the Bulletin further stated that
only female candidates were to be admitted in LHMC.
Para 2.1.2 of the Bulletin stated that candidates for 15%
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seats were to be selected directly by the Directorate
General of Health Sciences (DGHS) based on the result of
the examination conducted by the CBSE, New Delhi, as
per the directions of this Court. Para 2.1.3 of the
Bulletin deals with admissions to seats by Nominees of
Government of India (NGOI) and it states that candidates
who wish to be considered for admission to this category
of seats need not appear in the Delhi University Medical
and Dental Entrance Test (DUMET) and they will
correspond directly with the authorities listed in
Appendix-II to the Bulletin. Para 2.1.6 of the Bulletin
furnishes the statement of total number of seats in
Under-Graduate Courses for the session 2011-2012. The
statement is extracted hereunder:
Name of the Medical College
Seats to be filled in on the basis of DUMET
Seats to be filled in by DGHS
Seats to be filled in by the Government of India Nominees
Total Seats
MBBS Course General SC ST OBC 15%
Quota NGOI
LHMC 55 19 10 14 22 30 150
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MAMC 113 25 12 14 30 6 200 UCMS 66 19 9 34 22 Nil 150 Total 234 63 31 62 74 36 500
The aforesaid statement shows that 30 out of 150 seats in
LHMC and 6 out of 200 seats in MAMC in the MBBS course
are reserved for NGOI. The aforesaid statement further shows
that out of a total of 500 MBBS seats in the three government
colleges of the university, 36 seats are reserved for NGOI. The
Bulletin further provides that besides the 15% seats directly
filled up by the DGHS based on the examination conducted by
the CBSE, New Delhi, and the NGOI, all other candidates have
to appear in the DUMET and will be admitted to the MBBS
course on the basis of their merit in the category in which they
have applied.
4. The appellants applied as female general category
candidates and also took and cleared the DUMET.
However, on account of their lower rank in the merit list
of candidates who cleared the DUMET, the appellants
could not be admitted to any of the seats in the three
government medical colleges under the university.
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Aggrieved, the appellants filed Writ Petition (C) No.7103
of 2011 and Writ Petition (C) No.4299 of 2011 before the
High Court of Delhi praying for a direction to quash the
Bulletin insofar as it provides for filling up of 30 seats out
of the 150 seats in the MBBS course in LHMC by NGOI
and praying for a direction to the authorities to fill up
these 30 MBBS seats earmarked for the NGOI for the
academic session 2011-2012 from the general category
candidates and the appellants be considered for such
admission to the 30 seats as general category candidates.
Before the High Court, the appellants contended that the
reservation of as many as 30 seats in the MBBS course
in LHMC was violative of Article 14 of the Constitution
and that the procedure adopted by the Government of
India in nominating the candidates for the 30 seats
without holding a common entrance test for
determination of their merit was contrary to the Medical
Council of India Regulations on Graduate Medical
Education, 1997 (for short ‘the MCI Regulations’).
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5. In the impugned judgment and order, the High Court
held that in Kumari Chitra Ghosh & Anr. v. Union of India
& Ors. [1969 (2) SCC 228] a Constitution Bench of this
Court has considered the challenge to reservation of
seats for certain categories of students on the ground
that it is violative of Article 14 of the Constitution and
has held the reservation to be constitutionally valid. The
High Court further held that even though a sea-change
may have taken place since the judgment was delivered
by this Court in Kumari Chitra Ghosh (supra), it is only
for this Court to hold that the ratio of Kumari Chitra
Ghosh (supra) has become irrelevant. The High Court
has also held that as the nominations have already been
made by the Government of India to the 30 seats in
LHMC in the MBBS course and the nominated students
have taken admission and are undergoing the course, it
may not be appropriate to disturb their admission. The
High Court also found that the appellant had filed the
writ petitions in June, 2011 and writ petitions could not
be decided by 30th September, 2011 which was the last
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date within which admissions were to be made to the
MBBS course for the academic session 2011-2012 as per
the directions of this Court in Mridul Dhar (Minor) & Anr.
v. Union of India & Ors. [(2005) 2 SCC 65] and hence no
relief could be granted to the appellants after the 30th
September, 2011.
6. Ms. Indu Malhotra, learned senior counsel for the
appellants, submitted that the Constitution Bench
judgment of this Court in Kumari Chitra Ghosh (supra)
has lost its relevance inasmuch as the entire procedure
for medical admissions has undergone a sea-change
during the past four decades after the aforesaid judgment
was rendered in 1969. She submitted that the MCI
Regulations and in particular Regulation 5 thereof
mandates that the selection of students to medical
colleges shall be based solely on merit of the candidate
and for determination of merit the criteria laid down in
Regulation 5 of the MCI Regulations has to be adopted
uniformly throughout the country. She submitted that
Regulation 5(2) of the MCI Regulations provides that in
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States having more than one
University/Board/Examining Body conducting the
qualifying examination, a competitive entrance
examination should be held so as to achieve a uniform
evaluation and Regulation 5(4) of the MCI Regulations
provides that a competitive entrance examination is
absolutely necessary in the cases of institutions of all-
India character. She vehemently argued that there are
no exceptions provided in Regulation 5 to holding of a
competitive entrance examination and even candidates
belonging to the reserved categories including the
physically handicapped with 70% disability are required
to appear in the competitive entrance examination to
secure admission to the medical courses. She argued
that the Bulletin, therefore, could not have exempted the
NGOI candidates from appearing in the DUMET and in
fact the Bulletin by so exempting the NGOI candidates
from appearing in the DUMET has clearly violated
Regulation 5 of the MCI Regulations and on this ground,
Para 2.1.3 of the Bulletin providing that candidates who
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wish to be considered for admission in the category of
NGOI need not appear in the DUMET is ultra vires
Regulation 5 of the MCI Regulations. She submitted that
after the Constitution Bench judgment of this Court in
Kumari Chitra Ghosh (supra), the Constitution Bench of
this Court in T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. [(2002) 8 SCC 481] has also
emphasized the need for admissions to professional
courses solely on the basis of merit even in private
unaided colleges that enjoy maximum autonomy in
choosing their candidates for admissions under their
fundamental right guaranteed by Article 19(1)(g) of the
Constitution. She submitted that in T.M.A. Pai
Foundation (supra), this Court has also held that the
merit of the candidates seeking admission may be
determined either through a common entrance test
conducted by the University or the Government, followed
by counselling. She submitted that LHMC is not a
private medical college but a government college and
enjoyed much lesser autonomy in matters of admission
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and admissions to all the 150 seats in LHMC including
the 30 seats reserved for NGOI should have only been
made on the basis of merit as determined in a
competitive entrance examination or a common entrance
test. She submitted that contrary to this law which now
holds the field, the admission to the seats reserved for
the NGOI has been given during the academic session
2011-2012 to four candidates who have even failed in the
DUMET examination. She cited a recent judgment of this
Court in Asha vs. Pt. B.D. Sharma University of Health
Sciences & Ors. (Civil Appeal No.5055 of 2012) to the
effect that the criteria for selection for admission into
MBBS course has to be on merit alone.
7. Ms. Malhotra next submitted that the appellants are not
claiming admissions under the quota reserved for NGOI
but they are claiming admission to seats in general pool
of candidates on the basis of their merit in the
competitive examination. In this context, she submitted
that the quota reserved for NGOI has been taken out
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from the seats earmarked for the common pool of seats
and if admissions to the NGOI quota are held to be illegal
then these seats have to be filled up on the basis of their
merit amongst the general category candidates. She
further submitted that the quota for NGOI is not a
reservation under Article 15 of the Constitution and yet
as many as 30 out of 150 seats in LHMC have been
reserved for the NGOI and this quota is as high as 20% of
the total seats. According to her, such reservation when
considered along with the reservation of seats in favour of
SC/ST/OBC candidates exceeds the ceiling of 50% for all
reserved category fixed by the Constitution Bench of this
Court in Indira Sawhney v. Union of India [(1992) Suppl.3
SCC 217] and is unconstitutional. She also relied on the
decisions of this Court in Post Graduate Institute of
Medical Education and Research v. Faculty Association
[(1998) 4 SCC 1], Union of India v. Ramesh Ram & Ors.
[(2010) 7 SCC 234] and Indian Medical Association vs.
Union of India [(2011) 7 SCC 179].
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8. In reply, Mr. Siddharth Luthra, Additional Solicitor
General appearing for Union of India, submitted that the
Government of India, Ministry of Health and Family
Welfare, has issued guidelines for selection of candidates
to be nominated for the quota of seats reserved for NGOI
and the guidelines would show that the selection is to be
based on academic merit of the candidates. These
guidelines are contained in the letter dated 09.12.1986 of
the Joint Secretary, Ministry of Health and Family
Welfare, Government of India, to all the States/Union
Territories. He further submitted relying on paragraph 4
of the affidavit of the Union of India filed on 16.07.2012
that the purpose of allotting the seats under the Central
Pool Scheme for NGOI is that students from States and
Union Territories where there are no adequate medical
colleges need support for medical education and wards of
Defence/Paramilitary Forces who have sacrificed their
lives or have been permanently disabled in war/terrorism
also need similar support for medical education. He
further submitted that the Central Pool Scheme is run on
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the basis of voluntary contributions from the
States/Union Territories/Ministries/ Agencies for the
students nominated by them. He submitted that these
seats are only allocated to the beneficiary States/Union
Territories/Ministries/Agencies and the allocation letters
sent to the States/Union Territories/Ministries/Agencies
like the Defence Ministry, MHA, MEA and HRD Ministries
contain the guidelines indicating the eligibility and the
method of selection to be followed at the time of selection
of candidates against the Central Pool Schemes. He
explained that the beneficiary States/Union
Territories/Ministries/Agencies prepare a list of eligible
candidates on the basis of either the State Level Entrance
Test or on the basis of academic merit and conduct
counselling sessions for the available seats of the Central
Pool and after the list of candidates is finalized, the
States/Union Territories/Ministries/Agencies inform the
successful candidates to report to the medical college in
question for admission. He submitted that the Central
Government, therefore, has actually no role in
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preparation of merit list of eligible candidates and its role
is confined to only allocating the seats to the
States/Union Territories/Ministries/Agencies.
9. Mr. Luthra submitted that the issues raised by the
appellants have been considered by the Constitution
Bench of this Court in Kumari Chitra Ghosh (supra) but
decided in favour of the Central Government. He
submitted that the Medical Council of India has amended
the MCI Regulations by the Regulation on Graduate
Medical Education (Amendment 2012) and these
amended Regulations will be applicable from the
academic year commencing from 2013-2014. He
submitted that a reading of these amendments to
Regulation 5 of the MCI Regulations would show that in
order to be eligible for admission in MBBS course for a
particular year, it shall be necessary for a candidate to
obtain minimum marks in the National Eligibility-cum-
Entrance Test to MBBS course held for that academic
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year and such minimum marks would be 50% for general
candidates and 40% for SC/ST/OBC.
10. We have considered the submissions of the learned
counsel for the parties and we find that in Kumari Chitra
Ghosh (supra) the facts were that in LHMC 23 seats were
reserved by the Central Government for students of the
following categories:
“(a) Residents of Delhi ……..
(b) (i) Sons/Daughters of Central Government servants posted in Delhi at the time of admission.
(ii) Candidate whose father is dead and is wholly dependent on brother/sister who is a Central Government servant posted in Delhi at the time of admission.
(c) Sons/Daughters of residents of Union Territories specified below including displaced persons registered therein and sponsored by their respective Administration of Territory:
(i)Himachal Pradesh; (ii) Tripura; (iii) Manipur; (iv) Naga Hills; (v) N.E.F.A; (vi) Andaman.
(d) Sons/Daughters of Central Government servants posted in Indian Missions abroad.
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(e) Cultural Scholars.
(f) Colombo Plan Scholars.
(g) Thailand Scholars.
(h) Jammu and Kashmir State Scholars.”
A candidate seeking admission in any of the reserved seats
must have obtained a minimum of 55 per cent aggregate
marks in the compulsory subjects. This reservation of 23
seats was challenged before the High Court of Delhi as inter-
alia violative of Article 14 of the Constitution and the
nomination of the candidates to the reserved seats was also
challenged as contrary to the rules. The Delhi High Court
rejected the challenge and Kumari Chitra Ghosh carried the
appeal to this Court. A Constitution Bench of this Court held
that the reservation of 23 seats by the Central Government in
favour of specific categories of candidates was constitutionally
valid. Paragraph 9 of the judgment of the Constitution Bench
of this Court in Kumari Chitra Ghosh (supra) is quoted herein
below:
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“9. It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter-alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is necessary to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification.”
Thus, this Court has held in Kumari Chitra Ghosh (supra) that
it is for the Central Government which bears the financial
burden of running the medical college to take a policy decision
on the basis of over all assessment and survey of requirements
of residents of particular territories and other categories of
persons and the sources from which admissions are to be
made in the medical college and so long as the sources are
properly classified whether on territorial, geographical or other
reasonable basis, the Court will not strike down the policy
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decision of the Central Government on the ground that it is
violative of Article 14 of the Constitution.
11. We may now examine the policy decision of the Central
Government in reserving the seats in favour of the NGOI. In
the affidavit filed on behalf of the Union of India dated
16.07.2012, it is stated that there are a number of States or
the Union Territories which do not have medical/dental
colleges of their own and the majority of such States are in the
North-Eastern Region and in order to meet the requirements of
these States/Union Territories and for some Central
Government Ministries/Agencies and to fulfill some national
and international obligations, a Central pool of MBBS/BDS
seats is being maintained by the Ministry of Health and Family
Welfare. Along with the affidavit, a list of beneficiary
States/Union Territories/Ministries/Agencies and the
distribution of seats of the Central Pool for the academic year
2011-2012 to the beneficiary Sates/Union
Territories/Ministries/Agencies has also been furnished,
which is extracted hereinbelow:
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S.No. Beneficiary States/UT/Agency 2011-12MBBS BDS 1. Tripura 7 2 2. Manipur 24 2 3. Mizoram 27 2 4. Meghalaya 22 2 5. Sikkim 8 2 6. Arunachal Pradesh 26 2 7. Nagaland 24 2 8. Lakshadweep 13 2 9. A & N Islands 18 2 10. Daman & Diu 7 2 11. Dadra & Nagar Haveli 8 2 12. J& K 4 - 13. Ministry of Defence 25 2
14. Cabinet Secretariat (For SSF, RAW, ARC Dte.) 5 1
15. Ministry of Home Affairs (for BSF, CRPF, ITBP, CISF, Assam Rifles, SSB Etc.)
7 2
16.
Ministry of External Affairs (i) For Indian Mission
Staff posted abroad. (ii) For Self financing
foreign students
4
26 1
17. Ministry of HRD (for Tibetan Refugees) 1 -
18. Indian Council for Child Welfare (for National Bravery Award Winners)
2 -
19. Ministry of Home Affairs (Civil Terrorist Victims) 2 -
Total: 260 28 ”
The Central Government has, therefore, reserved 260 seats in
the MBBS course for the Central Pool and has classified the
sources from which admissions were to be made to these 260
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seats on geographical and other basis. It has not been shown
by the appellants that the classification of the sources from
which admissions are to be made has no rational nexus with
the objects sought to be achieved by the policy of the Central
Government. Hence, the validity and constitutionality of the
policy of the Central Government to reserve some seats on
geographical and some other rational basis cannot be
questioned. However, reservation of as many as 260 seats
may not be justifiable in the changed circumstances discussed
hereinafter in this judgment.
12. In fact, the main contention of the appellants is that the
policy of the Central Government to reserve seats in favour of
the NGOI is in breach of the principle of selection solely on the
basis of merit as laid down by the Constitution Bench of this
Court in T.M.A. Pai Foundation (supra) and as provided in
Regulation 5 of the MCI Regulations. It has, however, been
held by the Constitution Bench of this Court in Kumari Chitra
Ghosh (supra) that where some seats are reserved to be filled
up only from properly classified sources, the selection on the
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basis of merit has to be confined to the sources from which
the seats are to be filled up. Relevant extract from Paragraph
10 of the judgment of this Court in Kumari Chitra Ghosh
(supra) is quoted hereunder:
“As noticed before the sources from which students have to be drawn are primarily- determined by the authorities who maintain and run the institution, e.g, the Central Government in the present case. In Minor P. Rajendran v. State of Madras [AIR (1968) SC 1012] it has been stated that the object of selection for admission is to secure the best possible material. This can surely be achieved by making proper rules in the matter of selection but there can be no doubt that such selection has to be confined to the sources that are intended to supply the material. ”
[Emphasis supplied]
Accordingly, the seats which are reserved for a particular
source, i.e., the beneficiary State/Union
Territory/Ministry/Agency are to be filled up by selection on
the basis of merit of candidates who have applied as
candidates of that particular source, i.e., that beneficiary
State/Union Territory/Ministry/Agency. Thus, these
candidates who constitute separate sources from which
admissions are to be made to the seats allocated to the
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sources are not required to take the DUMET. They must go
through the selection on the basis of merit as laid down in
T.M.A. Pai Foundation (supra) and as provided in Regulation 5
of the MCI Regulations but such selection has to be confined
to the candidates of the respective sources.
13. In Annexure – R/3 to the affidavit filed on behalf of the
Union of India filed on 16.07.2012, the particulars of the
candidates who have been nominated to the seats allocated
to the beneficiary States/Union
Territories/Ministries/Agencies have been given. It has
been stated in Annexure – R/3 that for the 26 seats
allocated to the State of Arunachal Pradesh, the candidates
were nominated on the basis of Joint Entrance
Examination held by the State Government; to the 24
seats allocated to the State of Nagaland, the candidates
have been nominated on the basis of Joint Entrance
Examination conducted by the State Government; to the
27 seats allocated to the State of Mizoram, the candidates
have been nominated on the basis of the State Technical
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Entrance Examination conducted by the State Government;
to the 22 seats allocated to the State of Meghalaya, the
candidates have been nominated on the basis of academic
merit in 10+2; to the 8 seats allocated to the State of
Sikkim, the candidates have been nominated on the basis
of common entrance examination conducted by the State
Government; to the 7 seats allocated to the State of
Tripura, the candidates have been nominated on the basis
of Common Entrance Examination conducted by the State
Government; to the 24 seats allocated to the State of
Manipur, the candidates have been nominated on the basis
of the Common Entrance Examination conducted by the
State Government; to the 13 seats allocated to the Union
Territory of Lakshadweep, the candidates have been
nominated on the basis of Medical Entrance Examination
conducted by the Union Territory Government; to the 18
seats allocated to the Union Territory of Andaman and
Nicobar Islands, the candidates have been nominated on
the basis of marks obtained in 10th (20% weightage) and
12th (80% weightage): to the 8 seats allocated to the Union
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Territory of Dadar and Nagar Haveli, the candidates have
been nominated on the basis of percentage of marks
obtained in 10+2; to the 7 seats allocated to the Union
Territory of Daman & Diu, candidates have been nominated
on the basis of the percentage of marks obtained in 10+2;
to the 4 seats allocated to the State of J & K, the
candidates have been nominated on the basis of
Professional Entrance Examination conducted by the State
Government; to the 25 seats allocated to the Ministry of
Defence, the candidates have been nominated on the basis
of marks obtained in the 10th (20% weightage) and 12th
(80% weightage); to the 5 seats allocated to the Cabinet
Secretariat, candidates have been nominated on the basis
of marks obtained in 10th (20% weightage) and 12th (80%
weightage); to the 7 seats allocated to the Ministry of Home
Affairs, candidates have been nominated on the basis of
marks obtained in 10th (20% weightage) and 12th (80%
weightage); to the 4 seats allocated to the Ministry of
External Affairs (Mission Staff), candidates have been
nominated on the basis of marks obtained in 10+2; to the
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26 seats allocated to the Ministry of External Affairs
(Foreigners), candidates have been nominated on the basis
of marks obtained in 10+2; to the one seat allocated to the
Central Tibetan Administration, candidates have been
nominated on the basis of marks obtained in 10+2; to the
two seats allocated to the Indian Council for Child Welfare,
candidates have been nominated on the basis of marks
obtained in 10+2 and to the two seats allocated to the
Ministry of Home Affairs, candidates have been nominated
on the basis of marks obtained in 10+2.
14. The selection of candidates for the seats reserved for
NGOI thus has been done either on the basis of marks in the
Joint Entrance Examination or marks in the 10+2
examinations. Regulation 5 of the MCI Regulations provides
for determining the merit on the basis of marks obtained in
Physics, Chemistry, Biology and English in the qualifying
examination where one University/Board/Examining Body
conducts the qualifying examination or on the basis of a
competitive entrance examination where more than one
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University/Board/ Examining Body conducts the qualifying
examination. Unless a candidate who had applied to any of
the allocated seats and who had not been selected for
nomination comes to Court and places materials before the
Court to show that the selection has not been made in
accordance with Regulation 5 of the MCI Regulations or that
his merit has been by-passed while making the selection, the
Court cannot disturb the selection. In this case, the
candidates who had applied for the seats allocated to the
beneficiary States/Union Territories/Ministries/Agencies have
not approached the Court with their grievance that their merit
has been bypassed or that the selection has not been made in
accordance with Regulation 5 of the MCI Regulations. Instead
the appellants who had not applied for the 30 seats reserved
in LHMC for the NGOI have come before this Court with their
grievance that they ought to have been selected and admitted
to some of those 30 seats. The appellants, who have not
applied for the 30 seats reserved for the NGOI, could not
challenge the selection of the candidates to the 30 seats
reserved for the NGOI on the ground that merit as provided in
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Regulation 5 of the MCI Regulations or as laid down in T.M.A.
Pai Foundation has not been considered while making
selection for nomination of these reserved seats. In taking
this view, we are supported by the judgment of the
Constitution Bench of this Court in Kumari Chitra Ghosh
(supra), wherein it has been observed:
“…….It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. …”
Hence, even if some of the students may have been selected
for admission to the seats reserved for NGOI not on merit as
determined strictly in accordance with Regulation 5 of the MCI
Regulations, we are not inclined to disturb their admissions in
exercise of our power under Article 142 of the Constitution.
However, if there are vacant seats in the two government
medical colleges, namely, LHMC or MAMC, for the academic
year 2011-2012 out of the quota for NGOI, then the petitioners
should be given admission to these vacant seats on the basis
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of their merit in the DUMET 2011-2012 during the academic
year 2012-2013.
15. The appellants, however, have contended that 4
candidates, who have been given admission in the seats
reserved for NGOI in LHMC and MAMC during the academic
year 2011-2012, have even failed in the DUMET and to grant
admission to such failed candidates is making a mockery of
the entire system of medical admissions. As we have already
held, the candidates who have applied for the quota for the
seats reserved for NGOI constitute separate sources from
which admissions are to be made and the selection on the
basis of merit is to be confined to each separate source from
which the admissions are to be made and they are not
required to take the DUMET. Hence, even if they have failed
in DUMET, they are still entitled to be admitted to the seats
reserved for NGOI, if they are selected on the basis of merit
from amongst all the candidates who have applied from the
aforesaid separate sources for admission. Nonetheless, if the
candidates who have failed in the DUMET are admitted
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through a separate source of admission, as in the present
case, this may result in lot of heart burn amongst the students
who have cleared the DUMET but have not got the admission
to a seat in the MBBS course on account of their lower rank in
the merit list. Hence, in future the Delhi University must
stipulate in the Bulletin and the Government of India must
issue instructions that candidates who opt to take the DUMET
but do not qualify will not be eligible for admission to the
quota reserved for NGOI. This anomaly, however, has been
addressed by the MCI by making amendments to the MCI
Regulations and by providing therein that from the academic
year 2013-2014 every candidate seeking admission to the
MBBS course must obtain a minimum marks of 50% in the
National Eligibility-cum-Entrance Test in the MBBS course if
he is a general category candidate and must secure a
minimum marks of 40% in the National Eligibility-cum-
Entrance Test if he is a candidate belonging to Scheduled
Castes, Scheduled Tribes or Other Backward Classes. From
the academic year 2013-2014, therefore, NGOI applying for
the reserved seats will have to secure the aforesaid minimum
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marks in the National Eligibility-cum-Entrance Test for MBBS
course.
16. We may now deal with the contention of the appellants
that the reservations of seats for NGOI in LHMC is
excessive and when taken together with the quota of seats
for SC, ST, OBC and 15% of all-India even exceeds the 50%
ceiling of reservation fixed by this Court. We have perused
the decisions in Indira Sawhney v. Union of India, Post
Graduate Institute of Medical Education and Research v.
Faculty Association and Union of India v. Ramesh Ram &
Ors. (supra) cited by Ms. Malhotra and we find that the
aforesaid decisions do not relate to reservations of seats for
admission in medical colleges or other educational
institutions, but they relate to reservations of posts in
favour of SC, ST and Other Backward Classes in public
services. We have also perused the decision of this Court
in Indian Medical Association vs. Union of India (supra)
cited by Ms. Malhotra and we find that the aforesaid
decision holds that in the case of non-minority private
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unaided professional institutions when the candidates are
to be selected from the source of general pool, selection has
to be based on inter se rank of students, who have qualified
and applied or opted to choose to be admitted to such non-
minority private unaided professional institutions, whereas
in the case of minority educational institutions the source
can be delimited to the particular minority the institution
belongs to. The aforesaid decision in the case of Indian
Medical Association vs. Union of India (supra), therefore,
has no application to the facts of this case as LHMC is not
a private unaided medical college. Instead, it is a college of
the Central Government. In any case, the total number of
seats in MBBS course in the LHMC is 150 out of which 55
seats are filled up from general candidates on the basis of
their inter se merit in DUMET and 22 more seats are filled
up by candidates on the basis of their inter se rank in the
merit list pursuant to an all-India examination conducted
by the CBSE. Moreover, in para 13 of the affidavit filed on
behalf of the Union of India on 16.07.2010, it is stated that
LHMC had earlier an overall intake of 150 students which
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has been increased to 200 students from the academic year
2011-2012 and despite the increase of 50 seats, the
number of seats for NGOI for the academic year 2011-2012
was fixed at 30. It is further stated in para 13 of the
aforesaid affidavit that the seats reserved for NGOI in
LHMC has been reduced to 20 during the academic year
2012-2013, to 17 during the academic year 2013-2014 and
to 15 for the academic year 2014-2015, as it will be clear
from the letter dated 25.04.2012 of the Union of India to
LHMC. It is also stated in para 13 of the aforesaid affidavit
that while LHMC is a Central Government institution,
UCMS and MAMC are institutions controlled by the
Government of NCT Delhi and the Government of India
cannot demand surrender of seats towards Central Pool
and further LHMC is the only college which specializes in
medical education for the girl students and the
Government wants to propagate medical education among
the girls, particularly in the North-Eastern region.
Considering the aforesaid steps taken by the Government
of India to reduce the number of seats in phases from 30 to
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15 for NGOI in LHMC, we think that the grievance that
there has been excessive reservation for NGOI in LHMC, if
any, has been taken care of. That apart, for students of
Delhi, UCMS and MAMC are also other institutions where
MBBS course can be pursued by the general candidates
including general female candidates and the total number
of seats in these institutions are 200 and 150 respectively
out of which only 6 are reserved for NGOI.
17.We, however, find that in para 31 of the impugned
judgment, the High Court has held that even if there was a
justification as offered by the Government of India that
many States/Union Territories did not have medical
institutions of their own, particularly in North-Easter
States, there has been an overall economic development in
the country and a number of State-funded and private
medical and other institutions have been established in the
meanwhile in the country and, therefore, a re-look by the
Government of India at the extent of the seats reserved for
the NGOI was necessary. We agree with this view of the
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High Court in the impugned judgment and we are of the
considered opinion that the Central Government should
review and find out the number of seats in MBBS course
available in the State-funded and the private medical
colleges in the States/Union Territories for which seats are
being allocated from the quota for NGOI and decide afresh
as to how many seats should be allocated to these
States/Union Territories.
18. In the result, we:
(i) hold that the Bulletin insofar as it reserves 30
seats in the MBBS course in LHMC for NGOI is not
ultra vires the Constitution and in so far it
exempts candidates to be admitted to these 30
seats from taking the DUMET is not ultra vires the
MCI Regulations.
(ii) hold that the provisions of Regulation 5 of the MCI
Regulations for selection for admission to the
MBBS course solely on the basis of merit have to
be followed by the beneficiary States/Union
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Territories/Ministries /Agencies while selecting the
students who apply for the seats reserved or
allocated for the concerned State/Union Territory/
Ministry/Agency.
(iii) hold that even if merit of the applicants may not
have been determined strictly in accordance with
Regulation 5 of the MCI Regulations by the
beneficiary States/Union
Territories/Ministries/Agencies while selecting
some of the students for the seats reserved for
NGOI for the academic session 2011-2012, we are
not inclined to disturb their admissions in exercise
of our powers under Article 142 of the
Constitution.
(iv) direct that with effect from the academic year
2012-2013, no admission will be made to any of
the seats reserved for NGOI in LHMC, MAMC and
UCMS of any student who has failed in the
DUMET.
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(v) direct that for the academic year 2013-2014
onwards, the candidate applying for seats reserved
for NGOI have to obtain the minimum marks in
the All India National Eligibility-cum-Entrance
Test for admission to the MBBS course as provided
in the amended MCI Regulations and the
admissions will be made on merit after calling for
applicants through advertisement in the
newspapers having wide circulation.
(vi) direct that the Central Government will make a
review of the government and private medical
colleges which have been established in the
meanwhile in the States/Union Territories to
which seats are being allocated under the quota
for NGOI and if they find that additional intake
capacity for the MBBS course has been created in
these States/Union Territories, the Central
Government will take a fresh decision on the
number of seats in the MBBS course to be
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reserved for NGOI for these States with effect from
the academic year 2013-2014.
(vii) direct that if there are vacant seats in the quota
for NGOI in the LHMC and MAMC for the academic
year 2011-2012, the petitioners will be given
admission to these vacant seats on the basis of
their merit in DUMET 2011-2012 during the
academic year 2012-2013.
19. With the aforesaid directions, the appeals are disposed of.
There shall be no order as to costs.
.……………………….J. (A. K. Patnaik)
………………………..J. New Delhi, (Swatanter Kumar)
September 05, 2012.
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