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          [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:

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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”

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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  Physicsin 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.”

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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  

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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,  

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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.  

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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  

Seats

UR OBC SC ST

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  

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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.”

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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  

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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

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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.”

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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:

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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  

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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  

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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  

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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  

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(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:

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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  

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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  

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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)

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…………………………………J. (A.K.Sikri)

 New Delhi, December 11, 2013

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