Mr. Y.K Sabharwal, J.— Whether the procedure followed by All India Institute of Medical Sciences (for short “The Institute”) in selecting and allocating specialities to students seeking admissions to postgraduate courses is just, fair and reasonable or unfair, unjust and arbitrary, is the principle question which falls for determination in these two petitions.

2. The Institute has been established by act no. 25 of 1956 passed by the Parliament. It is funded by the Central Government. In the field of medicines, it is one of the premier Institutes in the country the objects of the Institute, inter alia, are to develop patterns of teaching in postgraduate medical education in all its branches so as to demonstrate a high standard of medical education to all medical colleges and other allied institutions in India and to attain self-sufficiency in postgraduate medical education. The Institute prescribes courses and curricula for both under graduate and postgraduate studies. The postgraduate students are exposed to the new methods of teaching and given opportunities to actively participate in teaching exercises. The postgraduate courses are available in the Institute in various specialities. The number of seats available in each speciality for the January, 1995, Session were—

Speciality General

(a) M.D Anesthesiology 6 Biochemistry 2 Biophysics 2 Community Medicine 3 Dermatology & Venereology 1 Forensic Medicine 1 Medicine 9 Microbiology 2 Obstetrics & Gynaecology 4 Ophthalmology 15 Pediatrics 4 Pathology 2 Pharmacology 2 Physical Medicine & Rehabilitation 1 Physiology 2 Psychiatry 4 Radiodiagnosis 3 Radiotherapy 1 (b) M.S Anatomy 3 Orthopaedics 3 Otorhinolaryngology 2 Surgery 6 (c) M. Ch. Neurosurgery 1 (5 year Pediatric Surgery courses) 1 80

For July, 1995, Session, the seats available were—

Speciality General

(a) M.D Anesthesiology 2 Biochemistry 1 Biophysics 1 Community Medicine 3 Dermatology & Venereology 1 Forensic Medicine 1 Medicine 3 Microbiology 1 Obstetrics & Gynaecology 2 Ophthalmology 10 Pediatrics 2 Pathology 2 Pharmacology 1 Physical Medicine & Rehabilitation 1 Physiology 2 Psychiatry 2 Radiodiagnosis 1 Radiotherapy 2 (b) M.S Anatomy Orthopaedics 1 Otorhinolaryngology 1 Surgery 4 (c) M.Ch Cardiothoracic and (2-3 year Vascular Surgery courses) Neurosurgery 2 48

3. The Institute conducts open entrance examination for all students to determine merit to grant admissions to postgraduate courses. One entrance examination for each session is conducted for students irrespective of the institution wherefrom the students may have pursued and completed their MBBS course. The prospectus provides for reservation of seats and procedure for selection as follows:

“(i) 33% of the total of postgraduate seats are reserved for Institute graduates.

(ii) 22.5% of the total of postgraduate seats are reserved for the candidates belonging to Scheduled Caste/Tribe communities.

(iii) 5% of the total of the postgraduate seats are reserved for; (a) those who have served in the rural areas for more than 2 years, (b) doing practice in rural areas having less than 5 thousand population for more than 2 years, (c) Medical graduates of backward areas, and (d) those who are working under the Family Welfare Programme subject to submission of a certificate from the District Magistrate for (a)(b) & (c) and Director of State Health Services for (d).

4. Procedure for Selection to the categories (ii) and (iii) above is:

(1) All the candidates who apply for admission to various postgraduate courses under these categories should have obtained hot less than 50% marks in aggregate after deduction for failures in all the MBBS examinations. A deduction of one percent shall be made for having failed once in any of the University examinations, and three percent for two failures. Candidates with more than two failures shall not be called for test.

(2) The suitability of these candidates will be judged on the basis of their performance in the theory test. Their suitability will not be judged in comparison with the other candidates and due consideration will be shown for the fact that candidates who have held rural posting and those coming from the backward areas may have been out of touch with current trends in medical sciences and practice because of their isolation.

(3) A final list of the selected candidates in order of merit will be prepared, separately for each category, and the seats will be filled accordingly.”

5. In view of aforesaid reservations, only 39.5% seats in postgraduate courses are open for the general category students.

6. The procedure adopted for allocation of seats, according to Institute, is as follows:—

(1) The first seat is given to the candidate who has stood first in the entrance examination,

(2) The second seat is offered to the candidate who has topped the list of Scheduled Caste candidates,

(3) The third seat is offered to the S.T candidate who has topped the list of Scheduled Tribe candidates,

(4) The fourth seat is given to the candidate who has topped the list of rural/backward/family welfare programme.

7. The Institute further states that after the seats are allocated in the aforesaid manner, the remaining seats are allocated in the first instance to the Institute graduates followed by candidates belonging to the categories of Scheduled Castes/Scheduled Tribe/Rural/Backward/Family Welfare Programme. The remaining seats are given to the candidates in the General Category.

8. A candidate can apply for a maximum of two specialities.

9. For July, 1995 Session there were three seats in the speciality of Medicine. Dr. Sandeep Tak (Writ Petition No. 2347/95) appeared in the entrance examination for the postgraduate course conducted by the Institute for this Session. As per the requirement given in the prospectus, since the petitioner could opt for maximum two specialities, he gave the following choices of courses in the order of preference:

(i) M.D (Medicine)

(ii) M.D (Ophthalmology)

10. The marks secured by the petitioner and respondents 3 to 5 are as under:—

Party Roll No. Name Marks obtained out of 600 %age Petitioner 901593 Sandeep Tak 442 73.66 Respondent-3 900269 Ritesh Gupta 316 52.66 Respondent-4 900938 Puneet Singh Arora 313 52.16 Respondent-5 901134 Prashant Khambra 324 54

11. Dr. Tak has been given admission in M.D, (Ophthalmology) and respondents 3, 4 and 5 in M.D (Medicine) course. Dr. Tak, therefore, seeks quashing of allocation of subject given to respondents 3 to 5 and directions to the Institute to make re-allotment of the postgraduate course seats in M.D (Medicine) in July, 1995 Session in the order of merit.

12. In the aforesaid examination, Dr. Tanu Singhal had obtained maximum marks and was offered by the Institute, M.D (Paediatrics) being her preference. The petitioner was second in the order of merit of all the candidates who had taken entrance examination. Instead of getting the speciality of his first preference, namely., M.D (Medicine), the petitioner has been given M.D (Ophthalmology) and this has led to the filing of CW.2347/95.

13. The principle challenge of the petitioner is to the legality of the procedure adopted by the Institute in making allocation of different specialities to candidates. The reservation of 33% seats for Institute graduates has also been challenged. The petitioner submits that this reservation and also the procedure adopted by the Institute for allocation of specialities is illegal, unconstitutional and arbitrary and results in lowering academic standards in the Institute and deprivation of right to more meritorious candidates to obtain admission in postgraduate course and undue preference to less meritorious candidates. It is contended that this is contrary to the very purpose and intentment of AIIMS Act and opposed to the very basis of the creation of the Institute. It is contended that respondents cannot be permitted to ignore merit as the basis for allocation of seats in various specialities. According to the petitioner, there is no candidate higher than him in order of merit in the entrance examination who may have opted for M.D (Medicine) and, therefore, the petitioner ought to have been given the said course. The petitioner has, accordingly, prayed for issue of directions to the Institute to forthwith allot a seat in M.D (Medicine) to him in accordance with law and in accordance with the merit and in terms of his first preference.

14. Dr. Saroj Goel (Writ Petition No. 104/95) had appeared in the entrance examination for the postgraduate course for the month of January, 1995. Her first preference was Pathology and second Microbiology. She belongs to the category reserved for rural/backward areas. She secured 49.333% marks. Respondent No. 2, Dr. Kavita Mundey a Scheduled Caste candidate secured 47.667% marks. Respondent No. 3, Dr. Yashmeen M. Vincent, a Scheduled Tribe candidate secured 31.667% marks. For this session there were two seats each for. Pathology and Microbiology. The first seat in Pathology was offered to one Dr. Puneet Singh Arora of the general list who had secured more marks and that is not relevant for the present purpose. The second seat in Pathology, was, however, offered to Dr. Kavita Mundey. In Microbiology also the first seat was offered to the general category candidate who had secured more marks and that too is not relevant for our purpose. The second seat was, however, offered to Dr. Yashmeen M. Vincent. As Dr. Goel was not given any seat, she filed this petition, inter alia, contending that reservation of 33% seats in postgraduate course for Institute candidates was bad in law and unconstitutional. She also challenged the said reservation on the ground that the total reservation exceeds 50% and contended that it was not permissible in law. It was also contended that assuming 33% institutional reservation is valid, still the petitioner is entitled to be given admission in preference to respondents 2 and 3 since as compared to the petitioner, respondents 2 and 3 secured less marks in entrance examination. The petitioner, accordingly, prays that directions be issued to the Institute to grant her admission in the discipline of Pathology or Microbiology in January, 1995 Session.

15. The stand of the Institute is that the allocation of seats has been done as per the reservation and the procedure noticed above. In both the petitions, there is no dispute about the percentage of marks secured as has been noticed above.

16. In the case of Dr. Tak, the Institute has tried to explain that respondents 3 and 4 have been given seats in M.D (Medicine) course out of Institute graduate quota of 33% and respondent No. 5 was given the seat as he stood first overall in the list of Scheduled Caste candidates and was given his choice of seat in that view of the matter but not as an Institute candidate though he happened to be from the Institute. According to Institute, respondent No. 5 was not even eligible to be considered in the category of reservation for Institute candidates.

17. According to the procedure adopted by the Institute, the seats in the first instance are allocated to the Institute graduates. The stand of the Institute is that all the three seats of M.D (Medicine) having been filled, as per the procedure, the petitioner could not be given the speciality of his first preference but was instead given his second preference, namely., M.D (Ophthalmology) as after the allocation made in favour of respondents 3 to 5, there was no seat in M.D (Medicine) available for being given to the petitioner. The result of following the aforesaid procedure is that the petitioner who was No. 2 in the merit list and had obtained marks much more than respondents 3 to 5 could not get the speciality of his first preference.

18. Dr. Saroj Goel, though had secured more marks then respondents 2 and 3, could not even get admission in postgraduate course since the available seats were given to respondents 2 and 3 as a result of the procedure followed by the Institute for making allocation of seats. As per this procedure impugned in these petitions, the list of Scheduled Caste and Scheduled Tribe candidates is taken before the list of rural/backward/family welfare programme is taken and before these lists, the list of the Institute candidates is taken. The list of Institute candidates is taken first of all.

19. During course of the oral submissions, without any foundation in the counter-affidavit, it was contended by learned Counsel for the Institute that the aforesaid procedure of allocation was being followed by the Institute since 1978. On specifically and pointedly being asked the basis of following the said procedure, which results in denial of admission and/or particular speciality to more meritorious candidates, nothing could be shown to us. We even gave opportunity to the Institute to produce relevant files which may show the reason or the basis of following aforesaid procedure but none were produced.

20. Any procedure which results in compromise with merit cannot stand the scrutiny of law. It would be arbitrary. The procedure adopted by the Institute results in discouraging meritorious candidates. The procedure results in ignoring the merit and is arbitrary and without authority of law. Though as per the prospectus, selection has to be made on the basis of merit but in fact, it is otherwise. The prospectus, inter alia, provides that suitability of the candidates will be judged on the basis of their performance in the theory test. The result of the procedure adopted by the Institute is that except for the topper in the examination, the candidate of general category who may be number two in the merit list may not even get admission in the postgraduate course and even if he gets admission, he may not get the speciality of his first preference. The reservation in favour of Scheduled Castes/Scheduled Tribes and Backward Class candidates has constitutional mandate. There is, however, no such constitutional mandate for reservation in the case of Institute candidates. Further, the undisclosed procedure followed by the Institute by making allocation of seats in favour of the candidates of the Institute, first of all aggravates the plight of candidates of other categories. The procedure being followed by the Institute has not even been incorporated in the prospectus. That apart, the procedure has to be just, fair and reasonable for all the candidates. It has to be such which gives encouragement to the merits of the candidates. At the same time it has to take care that the valid reservation is duly adhered to in granting admission to postgraduate courses. Neither there is any reservation in particular speciality nor it is so provided anywhere. The reservation is only in total number of seats in the postgraduate course. There is no reservation/preference in allocation of the speciality. The procedure adopted by the Institute results, without any authority of law, in granting reservation in specialities. It is discriminately, arbitrary and in violation of Article 14 of the Constitution. By, adopting the impugned procedure, the Institute is giving preference which has no basis in law.

21. We may illustrate what we have said above about the effect of following an arbitrary procedure. Assuming there are 100 seats in postgraduate course in different specialities. Further, we will also assume there is valid reservation of 33% for Institute candidates; 22% for Scheduled Caste/Scheduled Tribe candidates, and 5% reservation for rural/backward/family welfare programme candidates. This reservation only means that out of 100 seats, 60 seats should be given to reserve candidates and remaining 40 seats should be given to the general candidates. The effect of requirement to give preference for maximum of two specialities and first taking up list of Institute's candidates, followed by other reserve category candidates, is that but for the toppers as noticed above, the Institute candidates would get specialities of their preference which may result in the other candidates, including from reserved category, either not getting admission at all in postgraduate course and/or not getting the speciality of their choice even though they may have secured higher marks. For example, if a general category candidate who gives first preference for ‘Forensic Medicine’ and second for ‘Radiodiagnosis’ though may be second on merit list with 75% marks may not get admission in postgraduate course at all and these two specialities would go to Institute candidates, on application of the impugned procedure, though they may have secured 30% marks. This may also happen to candidates of reserve category for whom there is reservation because of constitutional mandate, though the adverse effect of following this procedure is more on general candidates. The general candidates by following the impugned procedure would get admission only if the seats remain available in the first or second preference of their choice after the 60 seats are filled in the aforesaid manner.

22. In both these writ petitions, what is stated above has, in fact, happened. Dr. Tak though number two in the merit list, has not got the speciality of his first preference (Medicine) in postgraduate course. We may note that insofar as the specialisation in discipline of medicine is concerned, no other candidate has more marks than Dr. Tak. In other words, for all intents and purposes Dr. Tak is on top of the merit list insofar as this speciality is concerned. As noticed above, the seats in Medicine have gone in favour of candidates of the Institute who have secured much less marks than Dr. Tak. Similarly Dr. Saroj Goel though has more marks than respondents 2 and 3 could not get admission and it has been given to these respondents though they had secured less numbers. This is the fall out of the procedure followed by the Institute.

23. It is for the Institute to follow the procedure for admissions, but it has to be just, fair and reasonable to all by which the reservation, if valid is also maintained and the specialities are given to the candidates according to their merit. It is not something which cannot be achieved. One of the ways of achieving it is:

24. Again assuming there are 100 seats and also assuming that reservations as noticed above are valid, the Institute can prepare a consolidated list according to the numbers secured by the candidates of all the categories in order of merit irrespective of the category to which they belong. The requirement to give preference of maximum two specialities in the application does not exist. The candidate is not required to give preference of any speciality. The Institute calls the candidates for Counselling according to the merit position of the candidate. During Counselling the candidate can opt for the subject of his choice depending upon the availability of speciality when his/her turn for Counselling comes. By following this procedure the Institute can give seats to 33 Institute candidates, 22 Scheduled Caste and Scheduled Tribe candidates, 5 Rural/Backward Classes and Family Welfare Programme candidates and to 40 general candidates in postgraduate course but the allocation of the subject/speciality would be according to availability, as per merit. The topper would get the subject of his choice. The second candidate on merit list to whichever category he may belong would get the subject which is left after the first candidate on merit has made the choice and so on and so forth. The last candidate, to whichever category he or she may belong, would, of course, get the seat in postgraduate course but would get only that subject which remains after 99 have exercised their option.

25. The aforesaid procedure is only illustrative. It is not for this Court to lay down the procedure for the Institute. The Institute has experts. The Institute may follow the procedure indicated above or any other procedure which may be just, fair and reasonable. It cannot be permitted to follow the present procedure, for which, as noticed above, no basis is shown to exist. The impugned procedure compromises with the merit and results in discouraging and/or denying admission to postgraduate course to meritorious candidates and/or denial of seat in the subject of choice of more meritorious candidate. As noticed above, in the prospectus issued for admissions there is no preference or reservation in the choice of the subject.

26. In view of our conclusion that the procedure adopted by the Institute is arbitrary, it is not necessary in these matters to decide the effect of the Institute not stating in; the prospectus, the procedure it follows.

27. In view of our aforesaid conclusion, in these matters it is also not necessary to decide whether 33% reservation in favour of the Institute candidates is valid or there is any justification for the reservation to the extent of 33% and also the effect of reservation exceeding 50% in all, although there appears to be some merit in the contentions raised. We leave these questions open to be determined in an appropriate case.

28. Lastly, the question is what directions should be given. Having regard to the fact that the candidates have already started their courses in January and July, 1995 Sessions on the basis of the admission granted by the Institute following the procedure, which we have held to be arbitrary, we do not think appropriate to quash the entire selection of candidates. We may, however, clarify that henceforth the Institute, would, not follow the present procedure as the same has been held to be arbitrary and shall devise some other procedure which is just, fair and reasonable. It would also not be equitable to oust respondents and direct that in their places, the admission and/or allocation of subjects should be given to the petitioners. At the same time, the petitioners who have secured more marks cannot be deprived of their legitimate rights. Having regard to the totality of circumstances we direct the Institute to create two more seats in the session of July, 1995 in postgraduate course, one in speciality of M.D (Medicine) and other in M.D Pathology. The seat in M.D (Medicine) shall be given to Dr. Sandeep Tak and Pathology to Dr. Saroj Goel. The writ petitions are disposed of in the above terms. No costs.

Petition allowed.