REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7037-7038 OF 2011 (Arising out of SLP(C)Nos.11320-11321 of 2011)

DR. PUNEET GULATI & ORS. ETC. ETC.   … APPELLANTS   

            Vs.

STATE OF KERALA & ORS. ETC. ETC.    … RESPONDENTS

O R D E R

ALTAMAS KABIR, J.

1. Leave granted.

2. This is a classic example where despite having  

succeeded in the proceedings before the High Court,  

the Appellants have not got the fruits of their

victory.   Although,  initially  there  were  five  

petitioners in the two Special Leave Petitions (now  

appeals)  which  we  are  considering,  during  the  

pendency of the matters all the petitioners, other  

than Dr. Amish Kiran Bhai Mehta, opted for separate  

disciplines  and  are  no  longer  interested  in  

admission  to  the  Super  Speciality  Courses  

concerned.  The appeals are, therefore, confined  

only to Dr. Amish Kiran Bhai Mehta.  

3. The constitutional validity of reservations for  

local students by the State for admission to Super  

Speciality Medical Courses in the State of Kerala,  

commencing from the academic year 2010-2011, was  

the subject matter of the writ petition before the  

learned Single Judge of the Kerala High Court.  The  

prospectus  for  admissions  provided  that  students  

who  had  completed  MBBS  or  Post-graduate  courses  

from Medical Colleges in Kerala and Doctors who had  

done  Rural  Service  in  Kerala,  would  be  given  

2

preference for admission and students who were not  

from Kerala would get a chance for admission only  

if there were no students from the State of Kerala  

available for admission in the aforesaid courses.  

4. Altogether,  85  seats  were  available  for  the  

Super Speciality Courses in the DM and MCH groups,  

of which 19 seats were reserved for Doctors who  

were  in  Government  service  and  the  remaining  66  

seats  were  available  for  selection  in  the  open  

merit  quota.   After  the  selection  process  had  

commenced,  the  prospectus  was  amended  limiting  

reservation  in  respect  of  candidates  with  Rural  

Service in Kerala to 10% of the seats and enlarging  

the  scope  for  students  of  Kerala  origin  and  

children of members of All India Service in Kerala.  

Students  who  were  from  outside  Kerala  and  had  

participated in the written examination, questioned  

both  the  original  and  revised  terms  of  the  

different prospectus and challenged the preferences  

3

and reservation provided to the local students in  

the prospectus.  The learned Single Judge dismissed  

their  writ  petitions  on  the  ground  that  after  

participating in the entrance examination they were  

not entitled to challenge the prospectus.  However,  

in the writ appeals preferred by the said students,  

the question as to whether it was open to the writ  

petitioners to challenge the prospectus in Court,  

was referred to a Full Bench, which, after holding  

that the writ petitions were maintainable, remanded  

the matters to the appeal court for a decision on  

merits.  In the appeals, the appellants prayed for  

restoration of the original prospectus, which would  

have the effect of restoring unlimited preference  

to  Doctors  having  performed  Rural  Service  in  

Kerala.  The remaining writ appeals were filed by  

the State challenging the decision of the learned  

Single  Judge  declaring  the  provisions  of  the  

original  prospectus  and  the  revised  prospectus  

providing for reservation for Kerala students only,  

4

as unconstitutional.

5. At  this  stage  it  may  be  kept  in  mind  that  

challenge to the original and subsequent prospectus  

was  based  mainly  on  the  ground  that  100%  

reservation was unconstitutional as had been held  

by a Constitution Bench of this Court in  Saurabh  

Chaudri & Ors. Vs. Union of India & Ors. [(2003) 11  

SCC 146].  The Division Bench of the High Court has  

extracted the relevant portion from the judgment in  

Saurabh Chaudri’s case, relating to reservation at  

the level of Super Speciality.  It was, inter alia,  

held that the higher the level of speciality, the  

lesser the role of reservation.      

6. The  Division  Bench  agreed  with  the  views  

expressed by the learned Single Judge, but while  

technically allowing the claim of the candidates  

who were from outside Kerala, on the ground that  

100% reservation was unconstitutional, chose not to  

give any relief to the said students on the ground  

5

that the course had commenced more than 6 months  

prior to the matter being heard by the Division  

Bench of the High Court.

7. Mr.  M.C.  Dhingra,  learned  Advocate  appearing  

for  the  appellants,  submitted  that  a  great  

injustice had been caused to the said appellants,  

who were denied admission to the Super Speciality  

Medical Courses in the State of Kerala on the basis  

of  an  invalid  legislation,  which  was  ultimately  

struck  down  by  the  High  Court.   Mr.  Dhingra  

submitted that most of the candidates who had been  

admitted in the groups of Super Speciality Courses,  

were  far  below  the  appellants  in  merit.  

Accordingly, despite being superior in merit, the  

appellants were denied admission in the aforesaid  

courses on the basis of a reservation policy, which  

was unconstitutional and was ultimately held to be  

so.  Mr. Dhingra submitted that after striking down  

the  reservation  policy,  as  contained  in  the  

6

prospectus for admission to the Super Speciality  

Courses, the High Court ought to have evolved a  

mechanism  by  which  the  appellants  were  also  

admitted to the courses.   

8. Ms. Liz Mathew, learned Advocate, who appeared  

for the State of Kerala, attempted to support the  

decision taken to admit the 10 students from the  

State of Kerala to the said course, but faced with  

the decision of both the learned Single Judge as  

well as the Division Bench, she had no other option  

but to accept the fact that the appellants had been  

discriminated against.  Since the State of Kerala  

had  not  challenged  the  decision  of  the  Division  

Bench on the question regarding 100% reservation,  

Ms. Mathew merely reiterated the views expressed by  

the Division Bench that it was too late to grant  

any relief to the appellants herein, as a long time  

had elapsed since the commencement of the courses.  

Ms.  Mathew,  however,  stated  that  five  seats  had  

7

been kept apart in the relevant courses as per the  

direction of this Court for the Academic Session  

2011-2012.  

9. Mr.  S.  Gopakumaran  Nair,  learned  Senior  

Advocate, who appeared for Dr. Cecil Kunnappilly,  

who was the 2nd candidate in the waiting list for  

admission  to  the  M.Ch.  Genito  Urinary  Surgery  

course, submitted that despite having been kept in  

the  waiting  list,  his  client  would  stand  to  be  

eliminated therefrom, if the appellant, Dr. Mehta  

was to be absorbed in the said discipline for the  

academic year 2011-2012.

10. Mr.  V.  Giri,  learned  Senior  Advocate,  and  

counsel appearing for the Medical Council of India,  

did not have much to add to the submissions made by  

Ms. Mathew and Mr. S. Gopakumaran Nair.

11. Having considered the judgment of the learned  

Single  Judge  and  the  Division  Bench  and  the  

8

submissions  made  on  behalf  of  the  respective  

parties,  we  have  no  hesitation  in  upholding  the  

decision  of  the  learned  Single  Judge  and  the  

Division Bench as to the constitutional validity of  

the first and second prospectus reserving 100% of  

the seats in the said Super Speciality Courses for  

students  from  Kerala  alone,  but  we  are  also  

convinced that since the appellant was not given  

admission to the aforesaid course, on the strength  

of  an  invalid  policy,  he  deserves  to  be  

accommodated in the aforesaid course in some way.   

12. By an interim order dated 20th July, 2011, we  

had  stayed  the  admission  process  for  the  Super  

Speciality Courses for the year 2011-2012 in the  

Government  Medical  Colleges  in  Kerala.  

Subsequently, by order dated 22nd July, 2011, we had  

modified  the  said  order  on  the  prayer  made  on  

behalf of the State of Kerala by directing that the  

admission process could continue but 5 seats were  

9

to be set apart for the petitioners, 2 seats in the  

M.Ch.  Genito  Urinary  Surgery  Course,  1  seat  in  

M.Ch. Neuro Surgery Course and 1 seat in the DM  

Cardiology Course.   

13. Since, of the 5 seats reserved in terms of our  

order, 2 are available in the M.Ch. Genito Urinary  

Surgery  Course,  we  direct  that  although  the  

appellant, Dr. Mehta, did not sit for the entrance  

examination for the year 2011-2012, on the strength  

of his marks in the entrance examination for the  

year 2010-2011, he should be given admission in one  

of  the  two  seats  in  the  M.Ch.  Genito  Urinary  

Surgery course, which has been kept vacant in terms  

of our order dated 22nd July, 2011.   

14. At  this  stage  we  may  also  consider  the  

submissions  which  had  been  made  by  Mr.  S.  

Gopakumaran Nair, learned Senior Advocate, that the  

candidate  who  was  No.1  in  the  waiting  list  had  

opted for a different discipline, namely, Thoracic  

10

Surgery and had already been given admission in the  

Trivandrum  Government  Medical  College.  

Accordingly,  Mr.  Nair’s  client,  Dr.  Cecil  

Kunnappilly,  could  be  considered  for  the  second  

seat which has been kept vacant in terms of our  

order dated 22nd July, 2011. In the event the seat  

is available, Dr. Kunnappilly may be considered for  

allotment  of  the  same,  in  accordance  with  the  

rules.  

 15. We  make  it  clear  that  this  order  is  being  

passed in the special facts of this case and should  

not be treated as a precedent in future cases.  The  

concerned authorities will be at liberty to fill up  

the other three seats, which had been kept apart,  

in accordance with the Rules.

16. The appeals are disposed of accordingly.  In  

the  facts  of  this  case,  the  parties  shall  bear  

their own costs in the appeals.         

11

……………………………………………………J.     (ALTAMAS KABIR)

……………………………………………………J.     (CYRIAC JOSEPH)

………………………………………………………J.    (SURINDER SINGH NIJJAR)

New Delhi Dated: 17.08.2011  

12