Dr. Chanemouga Soundaram C. And ... vs All India Institute Of Medical ...
1996 Latest Caselaw 216 Del

ORDER

M. Jagannadha Rao, C. J.

1. The main points arising in this writ petition are whether the 33% quota for the MBBS graduates of the All India Institute of Medical Sciences, New Delhi (hereinafter called "AIIMS") in Post Graduate courses in the same Institute is valid in law or on fact and whether there could also be discipline/department wise quota in Post Graduate courses for the said MBBS students of AIIMS ?

2. On 3-12-1995 an all-India entrance examination for admission to Post Graduate courses in AIIMS was conducted. Any person who secured 55% in MBBS was eligible to take the examination. The three writ petitioners in this writ petition, who are MBBS graduates from outside AIIMS, appeared for the said examination. They sought admission in Post Graduate courses for the January Session. AIIMS conducts examinations twice in a year for its January and July Sessions in Post Graduate courses. The prospectus was issued in September, 1995 declaring that selection shall be by merit of the candidates and that final list of the selected candidates will be prepared separately for each category and the seats will be filled accordingly. Each candidate has been permitted at the time of examination to opt for 2 specialties/ courses of MD/MS. Petitioners had, at the time of application, given their options.

3. The results of the common entrance examination were declared on 8-1-1996 for 100 positions. Petitioners 1 to 3 secured the ranks 10, 12 and 89 respectively. "Counseling" procedure was not published by 8-1-1996, as it appears, on account of certain administrative problems, there being certain stay orders in some other writ petitions. The total number of seats available for allocation for January 1996 session are 83. The reservation of seats as the prospectus was as follows :--

(1) Scheduled Castes = 15% (2) Scheduled Tribes = 7.5% (3) Quota for Rural/BW/FW of =5% AIIMS (those who served in rural area or belong to backward area or have worked in Family Welfare programmes) (4) MBBS students from AIIMS = 33% (5) Balance for open category = 39.5%

As per Ex P-4, Para A of the Scheme (for declaration of results, preparation of list and personal appearance of Counseling) published on 17-1-96 it is declared that only candidates who have secured 65th percentile or higher marks in the entrance examination shall be eligible for admission to Post Graduate courses. The SC/ST/RBF candidates of AIIMS will be considered for the Institute Graduates quota and open general category if they have secured marks corresponding to the 65th percentile or higher in Post Graduate entrance examination. The corresponding cut-off marks for reserved quota of SC/ST/RBF candidates shall be 60th percentile or higher in the entrance examination.

4. The department/Discipline wise reservation is set out in the said Scheme as follows : The seats shall be allocated on the basis of merit by a process of Counseling. Not more than 50% seats in any department/ discipline will be reserved for AIIMS graduates subject to the overall reservation of 33% of all Post Graduate seats. A 7-year roster of seats in different departments/disciplines is prepared for allocation of seats.

5. Counseling procedure is indicated in the scheme as follows : The allotment of seats shall be made to the candidates through personal appearance at Counseling. For personal appearance the candidates will be called in batches of 200 each day in order of merit as per the Schedule given in Appendix I. The candidates will have the right to choose any one of the available seats at his/her rank and the same will be allotted to him/her and the allotment letter will be issued the next day. It is stated

"The very fact that a candidate has appeared for allotment on a notified date does not mean that the allotment will be made to him/her, as the same shall depend upon the availability of a seat at his/her rank and the choice exercised by candidate."

If a candidate does not appear, the choice of one of the two subjects mentioned by him at the time of the examination will be considered by the committee.

6. The Scheme contains a Tabular Statement described as "Session wise allocation of seals for the year 1996 for reserved categories (SC, ST and Rural)-- AIIMS P. G Entrance Examination". This provides for discipline-wise quota for SC. ST. Rural/AIIMS for the January, 1996 Session. For example, for the Discipline wise quota is as follows :--

Obst.

& Gyn:

Jan.

Seats

July seals

Total

 

S.C.

S.T.

AIIMS

Open General

Jan.

July

--

Jan.

July

--

Jan.

July 

--

Jan.

--

July 

In other words, for the January, 1996 Session, the seats are 4, out of which I seat each go for SC and ST and 2 are reserved for AIIMS studens. That means no seat is available for the open general category in January Session and only one seat is available in July Session.

7. In the writ petition, the 33% per cent quota in Post Graduate courses for AIIMS students as well as the discipline/department-wise quota for AIIMS students is attacked and it is stated that they are discriminatory. It is contended that AIIMS has got a special status as an all India institute wherein the highest standards of education, teaching, research are intended to be achieved and therefore, there cannot by any reservation treating it on par with a University, nor can there be any institutional reservation in such a unique institute as envisaged by AIIMS Act (Act 25/ 1956).

8. A counter was filed by AIIMS initially on 25-1-96, justifying the 33% quota as being valid on the principle of institutional continuity. It is said that the same was introduced in 1978 and was based on the fact that AIIMS students who pass MBBS cannot seek admission in several other universities where domicile requirement or study in the particular university college is required. If there is no 33% reservation, there will be serious prejudice to these students. There is such university/college wise reservation in several states. Further discipline/ departmentwise reservation is there in almost all institutions in the country. Therefore, that is also valid. This year, for January, 1996, a percentile of 65% is worked out basing on the directions in C.W.P. 2347/95 dated 11-9-1995 and the new procedure is evolved as formulated by the Academic Committee on 27-12-1995, it was approved on 28-12-1995 and published in January 1996, after getting certain stay orders in C.M.P. 2453/95 modified.

9. Writ petitioners filed a rejoinder dated 31-1-1996 and they stated what actually happened at the time of Counseling on 22-1-1996 when petitioner 1 (Rank 10)wentforcounsel-ling. Similar details as to what happened when petitioners 2, 3 went for Counseling are set out. Reference is made to letter of Prof. Meharhan Singh (P 6) to the Director, AIIMS to say that the Scheme/procedure (referred to earlier) was evolved in December, 1995 and January, 1996 to suit the demands of the AIIMS students. The reservation of admission to creamy disciplines is bad. The Procedure Scheme was displayed only on 17-1-1996. As of today AIIMS students are --from 1984 after Pradeep Jain's case eligible for 25% of seats surrendered by all Medical Colleges in the country. (These seats are around 2000). In view of this factor, the quota introduced in 1978 is no longer tenable. AIIMS students are after all around 40 out of 120. Further a reservation of 33% out of 120 seats for 40 AIIMS students amounts to 100% reservation.

10. A counter was filed on 1-2-1996 by the President of the AIIMS Students Association justifying the 33% quota and the discipline departmentwise quota. A separate rejoinder dated 4-2-1996 has been filed by the petitioners to the said counter.

After the matter was referred to Division Bench on 6-2-1996, we imp leaded the Union of India and the Indian Medical Council.

11. Union of India filed a counter on 14-2-1996 stating that institutional reservation for AIIMS was introduced on 6-6-1978 when Union of India gave directions to the AIIMS (under Section 25 of the Act) and this was done due to student demands. On 24-10-1994, the 33% quota was withdrawn because the quota was found detrimental to SC/ST students. It was revealed that several SC/ST students who could not come within their respective 15% or 7.5% reservation got marks higher than AUMS students. (Some AIIMS students who got 14% or 19% got into Post Graduate courses even though secured lesser marks than SC/ST students). But on account of demands of AUMS students and "Dhar-nas", the 33% was reintroduced on 17-12-1994. An additional counter dated 1-2-1996 was filed saying that Union of India wants to consult the AIIMS and also the students with whom Union of India had earlier entered into agreement, before any final decision can be taken as to the 33% quota.

12. Counsel for the Medical Council stated orally that in view of the Supreme Court Judgment in Ajay Kumar Singh v. State of Bihar, , the Medical Council has no concern about the manner in which entrance examinations are conducted.

13. An additional reply was filed by the AIIMS on 19-2-1996. putting forward its brief submissions. This was after the judgment was reserved on 16-2-1996. On 19-2-1996, written submissions were filed by 3rd respondent.

14. We have heard elaborate submissions by Mr. Shyam Moorjani for petitioners, Ms. Mukta Gupta and Mr. Mukul Gupta for AIIMS, Ms. Kamini Jaiswal for the AIIMS Student Union (respondent 3), and Mr. Madan Lokur for Union of India. We also heard Mr. Maninder Singh for the Indian Medical Council.

15. On the basis of the submissions of the counsel, the following points arise for consideration.

(1) Does AIIMS have a special status as per the AUMS Act, 1956 and can the reservation of 33% for AIIMS students introduce in 1978 be justified on the basis of principles applicable for a University wise quota?

(2) Whether in law the principle of institutional continuity is no longer acceptable because of the Judgments of the Supreme Court in Thukral Anjali's case and in P. K. Goel's case .

(3)(a) Whether, alternatively, even if it is permissible to have institutional quota, the 33% quota for MBBS students in P. G. Course in a national Institute like the AIIMS, which is expected to be premier institute in medical education, teaching and research, is, on facts, not permissible.

(b) Whether, alternatively, the events which have transpired from 1978 when the 33% quota was first introduced till it was withdrawn on 24-10-1994 and was reintroduced on. 17-12-94, have shown considerable deterioration in AIIMS standards so as to justify withdrawal of the 33% quota?

(4) In any event, is discipline, department-wise quota as per the scheme of 17th January, 1996 valid and is it contrary to the judgment of the Delhi High Court in Dr. Sandeep Tak v. AIIMS (C.W. 2347/95) dated 11-9-1995.

(5) Is the Counseling procedure of 17th January, 1996 valid, if it is based on disciplinewise reservation for AIIMS students (other than SC/ST students)?

(6) Whether the 65 percentile method is valid?

(7) What is the relief to be granted in the writ petition?

16. Before we go into the question, it is necessary to refer to the provisions of the A11MS Aet. 1956 (Act 25/1956). The Statement of Objects and Reasons reads as follows :

"For improving professional competence among medical practitioners; it is necessary to place a high standard of medical education, both post-graduate and under-graduate, before all medical colleges and other alleged institutions in the country. Similarly for the promotion of medical research it is necessary that country should attain self sufficiency in post-graduate medical education. These objectives are hardly capable of realisation unless facilities of a very high order for both under graduate and post graduate medical education and research are provided by a central authority in one place. The Bill seeks to achieve these ends by the establishment in New Delhi of an institution under the name of the All India Institute of Medical Sciences. The Institute will develop patterns of teaching in under-graduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical education to all medical colleges and other allied institutions, will provide facilities of a high order for training of personnel in all important branches of health activities and also for medical research in its various aspects. The Institute will have the power to grant medical degrees, diplomas and other academic distinction which would be recognised medical degrees for the purpose of Indian Medical Council Act, 1933" Gaz. of Ind. 21-9-1955, Pt. II, S. 2, Extra page 444".

17. Section 3 of the Act establishes the Institute as a statutory body. Section 4 refers to the composition of the Institute with (a) Vice-Chancellor Delhi University (b) Director-General of Health Services Government of India (c) Director of the Institute (d) the representative Govt. of India (a) 5 of which one will be a non medical scientist (d) three members of Lok Sabha and one from Rajya Sabha. Section 5 declares the Institute as one of national importance. Under Section 7, the President of the Institute is to be nominated by the Central Government. Section 10 deals with the Governing Body of the Institute and of Standing Committees. Section 12 says location of the Institute will be at New Delhi. Section 13 refers to the objects of the Institute as follows :

"Objects of the Institute :

The objects of the Institute shall be-

(a) to develop patterns of teaching in undergraduate and post-graduate 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,

(b) to bring together in one place educational facilities of the highest order for the training of personnel in all important branches of health activity, and

(c) to attain self-sufficiency in postgraduate medical education."

18. Section 14 refers in clauses (a) to (o), the various functions of the Institute, which includes in Cl. (f)(i), the establishment of

"One or more medical colleges with different departments, including a department of preventive and social medicine, sufficiently equipped to undertake not only undergraduate medical education but also post graduate medical education in different subjects".

Clause (f) opens with a non-obstante clause, notwithstanding anything contained in any other law for the time being in force; in.

clause f(ii), there is proviso for establishing one or more well-equipped hospitals; in Cl. f(iii), there is provision for a dental college and in clause f(ii) for a nursing college and so on. Under Section 14(g) an Institute can train teachers for different medical colleges in India, and clause (1) hold examinations and grant such degrees diplomas and other academic distinctions and titles in under graduate and post graduate medical education as may be laid down in the regulations. Sections 15, 16 deal with financial support by Government of India and other donations. Section 23 deals with recognition of medical qualifications granted by the Institute and reads :

23. Recognition of medical qualifications granted by the Institute-- Notwithstanding anything contained in the Indian Medical Council Act, 1933, the Medical degrees and diplomas granted by the Institute under this Act, shall be recognised medical qualifications for the purposes of that Act and shall be deemed to be included in the First Schedule to that Act."

Section 24 deals with grant of medical degrees, diplomas etc. by the Institute and reads :

24. Grant of medical degrees diplomas etc. by the Institute--Notwithstanding anything contained in any other law for the time being in force, the Institute shall have power to grant medical colleges, diplomas and other academic distinctions and titles under this Act."

The Central Government under Section 25 has control of the Institute. Section 25 says :

25. Control by Central Government.-- The Institute shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of this Act."

The above provisions of the Act show that the institute is under Section 5 an Institute of National importance and is intended to serve the teaching and educational needs in the field of medicine for the country as a whole. The Statement of Objects and Reasons says that it is intended to promote a high standard of medical education, both post-graduate and under-graduate for all medical colleges and other allied institutions. It is to promote medical research of a high order, and is to be given the best facilities for these purposes. The degrees/diplomas to be granted by it have recognition straightway without the need for recognition by the Indian Medical Council. It need not affiliate itself to an University and it can straightway award degrees/diplomas etc. with reference to the University Grants Commission Act, 1956. It can establish more than one college or hospitals as provided under Section 14. Its objects are the attainment of high standards in teaching and education as specified in Section 13.

19. University wise quotas have been upheld by the Supreme Court on the ground that students of the University, if admitted on a preferential basis in the same University, might serve the region or area in which the University is located. Sometimes Universities themselves are located in backward or rural areas and in such situation, it is permissible to give preferential treatment to students of the same University. Further, students in one University might find it difficult to go to distant places for further studies or for Post Graduate courses. (Jagdish Saran v. Union of India ). In that case, there was 70% reservation at the Post Graduate level for MBBS students of Delhi University. The University had four colleges. This reservation was upheld by Justice Krishna Iyer on the main basis that such preference was permissible University wise. The other learned Judge Justice Pathak as he then was) justified the quota on the basis of institutional continuity. The principle of reservation on the basis of domicile was accepted in Pradeep Jain v. Union of India while prescribing a scheme for an All India quota from each college in the country. It was further stated that 70% seats could be reserved for students from the same University for MBBS and upto 50% of the seats in Post Graduate courses in Medicine. There should be no reservation at the level of super specialities. But in Nidamarthi v. State of Maharashtra a Bench of two learned Judges struck down 100% region-wise reservation in Bombay for MBBS course. After reviewing the case law, including Jagadish Saran's case, and Pradeep Jain's case, the Supreme Court held that a certain percentage can, however, be reserved University wise to save a region or area. In Anant Madaan v. State of Haryana, , preference in MBBS/ BDS based on residence or domicile in State of Haryana was upheld.

20. It will be noticed that the All India Character of AIIMS as per the Act, together with the fact that in MBBS, the 40-45 students who join AIIMS after a common examination, are themselves drawn from all over India, shows that the 33% reservation for AIIMS students at Post Graduate level cannot be justified on a regional requirement basis. Nor is it a case of Post Graduate students from AIIMS being expected to settle down in Delhi. It might be that AIIMS, treated as an institution which confers degrees, could be treated as on par with a University but even so because of the object and purposes for which it is established and particularly that it is to be a high model institution for education, teaching and research for the entire country, there can be no reservation of seats on a University based reference, catering to regional needs. We hold on Point 1 accordingly.

21. Point 2 : We are deciding this question alternatively to Point 3. The point is whether, as a matter of law, the 33% reservation introduced in 1978 be justified on the basis of institutional continuity is the next question. This turns upon the Judgments of the Supreme Court in Thukral Anjali's case, and P.K. Goel's case, .

We shall survey the case law on this aspect from 1980.

As to the desirability of institutional quota, there are dicta in the views expressed by Justice Krishna Iyer and Justice Pathak (as he then was) in Jagdish Saran's case, . These are also dicta and in Pradeep Jain's case, . It was said that if helps a student in continuity in the same method of teaching, environment and system and is, therefore, not invalid. We however find a clear deviation from this principle in three later cases. In State of Rajasthan v. Ashok Kumar Gupta, there was weightage of 5% marks based on college-wise continuity and it was held unconstitutional. In other words, in the same University, for Post Graduate courses in medicine, an extra 5% marks for students of same medical college when seeking admission to Post Graduate seats in that college, was held to be bad. Again in Greater Bombay Municipal Corporation v. Thukral Anjali, it was held that the rule relating to College-wise institutional preference was violative of Article 14. In that case, it was further held that in Pradeep Jain's case, was concerned with domicile or residential qualification (see para 6) and not with college-wise institutional preference. Adverting to the institutional preference theory laid down in Jagdish Saran's case, by Justice Pathak (as he then'was), it was held that the question in that case was about validity of 70% reservation for Delhi University MBBS students in Post Graduate courses in Delhi University and no question of college-wise institutional preference arose there. Facilities differed from college to college and there was no guarantee that MBBS students of one medical college would be allotted seats in the same medical college. The standard to be maintained is a University standard and not a college-wise standard. The Court held clearly :

"There is no intelligible differentia for the classification by way of college-wise institutional preference....."

The Court also followed the relief in State of Rajasthan v. Dr. Ashok Kumar Gupta, , already referred to Again in P. K. Goel v. U. P. Medical Council, , the college-wise institutional preference was struck down by the Supreme Court, following Municipal Corporation of Greater Bombay v. Thukral Anjali, .

22. Thus we find that these last two cases i.e. Thukral Anjali, and P. K. God's case, are direct cases on facts where the college-wise institutional preference was in question and was held to be bad. "In the former, it was clearly held that such a question did not arise, either in Jagdish Saran's case, or in Pradeep Jain's case, . Going by the law of precedents and Article 141 of the Constitution of India, we may have torso by the rulings of the Supreme Court where the question was directly in issue rather than where general observations to the contrary are made, and where the issue did not arise. Therefore we feel bound by rulings in Thukra Anjali, and P. K. Goel's cases, .

23. Before we part with this aspect, we have to refer to two more recent cases. One of them is Anant Madaan v. Slate of Haryana, (sic) which we had referred earlier in the contest of domicile or residential quota). In that case, there are observations as to institutional preference and Jagadish Saran's case, and Pradeep Jain's case, were referred to. No reference was made to Thukral Anjali's case, , nor to P. K. Goel's case, . The fact remains that Anaht Madaan is not a case where institutional college-wise preference was in question. Again, in another recent case, Sanjay Ahlawat v. Maharishi Dayanand University, (1995 (2) SCC 762), 10% extra marks to graduates from the only medical college in the State of Haryana was upheld, but there was no reference to State of Rajasthan v. Dr. Ashok Kumar Gupta, where such addition of marks collegewise was held to be bad. Nor is there any reference to Anjali Thukral's case, nor to P.K. Goel's case, . It is however significant that the Court, in Sanjay Ahlawat's case, observed (see para 13 at page 766) as follows :

"But, in the instant case, no reservation has been made for the boys graduating from Maharishi Dayanand Medical College at all. The students from the University may apply for admission. This rule is that local boys graduating from medical colleges outside outside Haryana will be allotted 5 additional marks and the graduates of Medical College, Rohtak. will be allotted 10 additional marks in the selection list. There is no preservation of scats college-wise or University wise".

These observations would, in regard to a single college situation in our view, go more in favour of the views expressed by the Supreme Court in the two direct cases on facts, namely, Anjali Thukral's case, and P. K. Goel's case, .

24. This being the legal position, can be hold - particularly in the face of the two direct cases, namely, Anjali Thukral's case, and P.K. Goel's case, which squarely deal with college-wise institutional reservation, that the 33% reservation in the AIIMS towards institutional reservation is valid? In our view, no.

25. In this context, it was argued for the students union that though Section 14(f)(i) of the All India Institute of Medical Science Act, 1956 (Act 25/56) contemplates the Institute establishing more than one medical college, there. is now only one medical college for MBBS & Post Graduate courses. The only . other colleges a Nursing College established under Section 14(f)(iv) and therefore, this is not a situation where there are more than one medical college within a University or an Institute, where there is institutional reservation for each college.

26. But, in our view, this question cannot depend merely on whether, as of today, AIIMS has established only one medical college. Further, the law, as seen from the above cases, does not seem to support such a contention.

27. It is true there is, at present, only one medical college under the AIIMS and AIIMS can, under law, establish more than one medical college. For that matter in Sanjay Ahlawat's case, (1995 (2) SCC 762) which was a case of a single medical college at Rohtak in the State of Haryana the Supreme Court while un holding addition of 10 marks for the students from Rohtak (as against 5 marks for those from outside the State) clearly observed that it was not a case of reservation of seats college-wise or University-wise. Coupled with observations of the Supreme Court in Anjali Thukral's case, and P. K. Goel's case, , college-wise reservation, -- if there be only one college, --it appears that a quota even in a single college will be unsupportable though addition of extra 5 marks in the case of a single college situation may not be bad. The view we have taken is consistent with the opinion expressed in the two direct Supreme Court cases last referred to and flows from Sanjay Ahlawat's case, (1995 (2) SCC 762), which is a single college situation and which clearly says that reservation of seats college-wise will be bad. We, therefore, hold that, in view of the above rulings, particularly Anjali Thukral's case, and P.K. Goel's case, the principle of institutional continuity is no longer acceptable. This point is decided alternatively to Point 3, as stated above.

28. Points 3 (a) and (b) : Even assuming that there can be institutional quota and we are wrong on Point 2, we shall decide the case of institutional continuity in AIIMS independently.

29. The AIIMS is an all-India institution which was established for attaining the highest standards in medical education, teaching and research. This is clear not only from the Statement of Objects and Reasons but from the specific statutory provisions of the AIIMS Act (Act 25/56) referred to earlier. It is an institute treated as a chershed national asset of the highest order. The 40 to 45 MBBS students in AIIMS are selected in an all India examination and hail from all over the country. If the institute is to attain the highest standards in education, teaching and research, it is obvious that reservations --apart from the Article 15(4) reservation --must be kept to the minimum. (We are not here touching the SC, ST or even the Rural/ Backward area/Family Welfare quota of 5% while dealing with the 33% AIIMS quota).

30. Justification is sought to be made on the ground that AIIMS graduates in medicine cannot go to the Delhi University Post Graduate courses where there is 70% quota for the four Delhi University medical colleges graduates nor to other Universities in other States. It is said that in several States there is domicile or regional quota which finds approval from various judgments of the Supreme Court.

31. In this context, we must note that the quota of 33% was introduced on 6-6-1978. What was the basis of the quota, to start with? We find that in the letter of the Deputy Secretary, Government of India, dated 6-6-1978 addressed to AIIMS, this is all that is mentioned :

"I am directed to enclose a copy of the memorandum of decisions in regard to the charter of demands of the Delhi Medical Students Association arrived at on the 19th May 1978 and to draw attention to item No. 13 thereof from which it will be seen that the Government of India have decided...."

This letter (which is attributed to Section 25 of the Act) mentions no reason other than a demand of the students. The reply affidavit of the Government of India dated 14-2-1996 does not seek to justify the 33% on any ground other than the student demand, when it was introduced in 1978.

32. In regard to the plea of respondents that there are problems of domicile/residence (sic) by AIIMS students, reliance is placed for the AIIMS and for the Students Union on Jagdish Saran's case, which permitted upto 70% reservation by Delhi University in its MBBS courses. The Supreme Court said that for Post Graduate courses, the upper limit can be 50%. The argument for respondents is that here it is Only 33%. It was pointed out by Justice Krishna Iyer (see para 49 at page 835) :

"We recognise that institution-wise reservation is constitutionally circumscribed and may become ultra-vires if recklessly resorted to. But even if such rules, until revised by competent authority or struck down judicially, will rule the roost. That is why we have fo concede that until the signpost of no admission for outsiders is removed from other universities and some fair percentage of seats in other universities is left for open compeli-tion, the Delhi students cannot be made martyrs of the Constitution."

The view was that if certain percentage was surrendered by all States for a national quota, then such grievances would stand removed.

33. This very suggestion came to be more or less implemented in Pradeep Jain's case consequent to which 25% of seats in all colleges around 2000 Post Graduate seats, in the country (except Jammu & Kashmir and Andhra Pradesh) have become available to the 40 or 45 MBBS students of AIIMS? Further even where university-wise quota for backward regions or areas are fixed, they cannot exceed 50% so far as Post Graduate courses are concerned as per Pradeep Jain's case. Therefore, the grievance of the MBBS students of AIIMS of 1978 is no longer tenable after 1984, when 2000 seats became available for All India pool and even in other Universities, only 50% could be reserved on an University basis preferred for PG Courses. After 1984 therefore, the legal position and the factual position clearly changed ?

34. Factually, let us examine the manner in which the 33% quota actually worked out after 1978 and upto 1994. The following table, filed by AI1MS at our instance, shows that AIIMS students who have secured marks as low as 14% or 19% or 26% in the entrance examination got admission to PG courses while Scheduled Castes candidates (who could not secure admission in their 15% quota as per their inter se merit) or Scheduled Tribes candidates (who could not secure admission in their 7% quota as per their inter se merit), obtained far higher marks and were denied admission in PG course in AIIMS :

TABLE 

Session

%

AIIMS

S.C.

S.T.

Open General

July

Lowest

31.  

20. 66

36. 00

Jan.

Lowest

14.  

28. 16

31.  

42. 

July

Lowest

22. 16

36. 16

31. 33

49. 50

Jan.

Lowest

25. 33

40. 50

38. 83

54. 67

July

Lowest

19. 83

31. 50

31. 50

50. 00

Jan.

Lowest

31. 33

41.16

31. 66

47. 33

July

Lowest

38. 00

22. 67

37. 17

46. 33

Jan.

(33% + Percentile 65%)

Lowest

46.167

46.167

45.500

61.333

In other words, there were SC, ST students whose lowest marks in the Post Graduate entrance examination of AIIMS were far higher than the lowest marks secured by AIIMS students and not only that, while such AIIMS students secured admission, the SC/ST candidates whose marks were higher (but who could not in within their 15% and 7%), could not get admission. This was happening because there is not even a cut-off minimum mark fixed for grant of PG seats.

35. For January session the seats are around 80 while for the July session, the seats are around 40. In all about 120. There are only about 40 or 45 AIIMS students seeking admission. If 33% out of 120 are reserved for AIIMS students -- they being a small number virtually ail of them could get admission --there being no cut-off mark treated as a failure-mark in the entrance examination.

36. From the data furnished to us, we have further analysed the ranks as the AIIMS students in the common entrance for PG course in various years. In the first 100 rank, there have been very few candidates from AIIMS (except in January 1993) as per the following Table:

1) July 1992

-- 3

candidates from AIIMS are in first 100 ranks.

2) January 1993 -

--do--

3) July, 1993--

--do--

4) Jan, 1994

-- 4

--do--

5) July, 1994

-- 2

--do--

6) Jan. 1995

-- 7

--do--

7) July, 1995

-- 3

--do--

When the available seats are only 120 for both sessions January and July, the above ranks of AIIMS students present a poor spectacle. (When we deal with the validity of discipline-wise allotment we shall show that in the above year the creamy-disciplines were given to AIIMS students by a very peculiar discipline reservation for them, in spite of very few of them coming within the first 100 ranks).

37. We have pointed out that 33% quota was fixed in 1978 on student demand and withdrawn in Oct. 1996 on students demand. As to quota being introduced because of student agitation and dharnas, the Supreme Court has staled that such quotas are not valid unless there is a valid constitutional basis for acceding to the formulas adopted Justice Krishna Iyer in Jagdish Saran's case while dealing with Delhi University Medical P. G. reservations referred to this aspect. His Lordship posed the question, but what if non-Delhi students start a rival starvation exercise? That will lead to testing the rule of law on the immolative or masochist capabilities of affect group and not on the Articles of the Constitution of provisions of the legislation ..... this great Gandhian technique cannot be blunted by promiscuous use --" The Court observed:

"...... We cannot uphold the Delhi University's "reservation" strategy merely because Government was faced with student 'facts' and Ministers desired compromise formula and the University bodies simply said 'Amen'."

In the present case, the 1978 letter of the Govt. of India which we have already extracted and the Govt. of India's reply-affidavit dated 14-2-1996 docs not give any reason for the 33% other than student demands. The Government entered into an agreement with students. Did the Institute said "Amen"? Over the years, from 1978 to 1995, a stage was reached when SC/ ST students who performed better (apart from other meritorious students) were denied seats because of AIIMS quota.

38. This was realised in Oct. 1994 by the Government of India when they withdrew the 33% quota for AIIMS students by letter dated 24-10-1994:

"No. V 16020/8/94-ME (PG) GOVERNMENT OF INDIA

Ministry of Health and Family Welfare

Nirman Bhawan, N. Delhi Dated the 24-10-1994

To,

The Director, AIIMS NEW DELHI

The Director,

JIPMER

PONDICHERRY

The Director

PGI CHANDIGARH,

Subject: Reservation in P.O. Entrance Examination -- order regarding.

Sir,

I am directed to say with reference !o the subject mentioned above that in supersession of all the earlier orders/instructions on the above subject, the Government of India have decided that from the next academic sessions onwards only Constitutional reservations i.e., 15% for S.C. and 7.5% for S.T. should be kept and the remaining seats should be filled through an All India competition. No reservation will be kept for Institute graduates.

The selection of candidates will be done on the All India competitive examination both for general and reserved categories. The examination conducted for filling up for 25% of the seats in P.G. Course in all Medical Colleges of the country would be the basis for filling up all the seats for P.G. Courses.

Yours faithfully,

Sd/-

(ALOK PERTI)

Director"

39. Though the above said order is based on the denial of seats to meritorious students from SC, ST categories, and additional reason (perhaps a better one) could have been given by the Govt. of India that students in general category with far greater merit were being denied seats in the Post Graduate courses all along all along.

40. What happened after 20-10-1994 is again very interesting. Government had to issue another letter on 17-12-1994 and withdraw the letter dated 20-10-1994. This was on the basis of student unrest and demands. This resulted in re-introduction of the 33% quota. This letter dated 1-12-1994 reads as follows:

"No. V. 16020/8/94-ME (PC) Government of India

Ministry of Health and Family Welfare.

In view of the administrative difficulties pointed out by the Director, A.I.I.M.S. in the implementation of the instructions issued under this Ministy's letter No. V. 16020/8/94-ME (PG) dated 24th Oct. 11994, it has been decided to withdraw these instructions and restore status good ante. Constitutional reservations for SC/ST students shall continue to be maintained.

(ALOK PERTI)

Director (ME)"

This shows again that student unrest was the main reason. This is also clear from the counter dated 14-2-1996 filed by the Government of India.

"While the modalities of implementing the new scheme were being looked into, the students of AIIMS went on strike seeking revocation of the directions dated 20-10-1994. The position was that students in large number physically blocked the entrance of the director's wing and the Academic section. It was expected that the physically blockage may extend to the Examination Branch and the Administrative Block. AIIMS was responsible for holding examinations from DM/M.Ch. course on 15-12-1994 and the All India Entrance Examinations on 1st January, 1995, onward were also to be made available for sale. The All India Entrance Examinations were crucial and important and any departure from the schedule on account of the students agitation would have had larger ramifications"

No other justification other than student demand is forthcoming from the Government of India.

41. Certain documents have however been filed by AIIMS on 14-2-1996 to justify the 33% quota. The first one is the minutes of the Academic Committee dated 4-12-1978. This does not help the AIIMS for it merely states:

"The matter was discussed at length"

and it was "decided" to give 33% quota to AIIMS students. Two other documents containing the minutes dated 9-8-1980 and 27-1-1981 are not relevant as they deal with SC/ST and rural quotas. After the 20-10-1994 letter of Govt. of India withdrawing the quota, the AIIMS wrote to the Govt. of India on 29-11-1994 merely stating that "various options/ modalities were being worked out". The letter from AIIMS dated 5-12-1994 to the Govt. of India merely refers to the "Agreement" with the Students Union. It says:

"..... the consensus was that the implementation of the orders would mean going back on an Agreement arrived at between the Ministry of Health and the Students Union ........."

42. Things went bad in All MS soon after 20-10-1994 students resorted to a lightning strike, broke into the Director's residence in the night, police had to be called. This is clear from AIIMS letter dated 7-12-1994 to the Government of India. Surely constitutional questions cannot be allowed to be decided on the basis of these events.

43. Strong reliance was placed for the AIIMS on the letter of the then Dean to the Director, during 1st week of December, 1994. The Dean took up the cause in favour of the 33% quota and against the 'interference" by the Government into academic freedom. He said selection of students is linked up with academic standards. According to him AIIMS students had a special right to post-graduation in their parent-institute, that if Government had ensured that no medical college (or other similar institute) reserved any seats for their own graduates or state subjects, there would have been justification in there being no quota_. Virtually every medical college was fixing quotas tor its students. The Supreme Court had allowed 75% reservation. Here it was only 33%. The agreement with students union could not be unilaterally set at nought, particularly at a critical time in view of the coming elections. He said that it was true there was All India 25% quota after Pradeep Jain's case , the AIIMS programmes do not fit into it because AIIMS has two annual sessions one in January and one in July, Changing to annual system would require that all teaching and posting schedules are revamped. It might result in joss of 2-1/2 years to some students if the pattern is changed.

44. The above letter perhaps contains the best defense which the AIIMS or the students can put forward. We have already considered these aspects in the light of the legal position. Further, the above letter does not deal with the high status that the Act has given to the AIIMS nor to the fact that AIIMS students are drawn from all over India; that they are not intended in serve in a backward area or region; that it is not intended that they will settle down and serve Delhi local area; that the standards at the lower level of the AIIMS students have fallen below the standards of SC/ST students; that the standard; that the standard at the higher level reveal that very few of them are coming within the first 100 ranks (the total scats for January being about 80 and for July 40); and that but for the further discipline-wise quota, they would not be able to secure a few seats particularly in the creamy disciplines. The Dean did not notice that the Supreme Court nowhere permitted 75% quota in PG courses. It permitted in Pradeep Jain's case, 75% for MBBS courses and upto 50% in P.G. Courses where it is a University with several medical colleges and serving a region or backward area. It has not said anywhere that institutional reservation for a single institution (one medical college) could go upto 50%.

45. If, therefore, the reason given by the Dean in his letter addressed to the Director AIIMS arc not legally tenable, and if the letter dated 17-12-1994 reintroducing the 33% was otherwise based on student agitation, there can be no doubt that the continuance of the quota is no longer tenable having regard to the various events which have taken place after 1978 and the various rulings which have come into being since then and the ranks that are being obtained by AIIMS students in PG entrance examination conducted by AIIMS during post 1978 period. The 33% quota be held to he discriminatory and violative of Art. 14 of the Constitution of India. In this context, it is important to notice that in the reply dated 15-2-1996 filed by the Govt. of India they have also clearly opined that merit alone should be the criteria for selection to the P.G. courses in the AIIMS. It was said in para 2 of the said reply.

46. There is yet another reason as to why the quota is not valid. During the course of arguments, it was submitted that from about 35,000 students who appeared in All India examination, 35 to 40 students are selected in AIIMS in MBBS course. That would mean that for every 1000, only one student is selected for MBBS in AIIMS. These students who are ultimately selected are bound to be very meritorious. Thereafter, they pursue the programme where much better teaching faculty, better infrastructure is available. The students also have much greater interaction with teachers and doctors working in various parts of the country and the world. They definitely have an edge over other students of medical colleges and they should not require any reservation.

47. As analysed earlier, the impact of this reservation from 1978 to 1995 has been students in AIIMS become quite indifferent to hard work and ultimately students with 14 per cent and 19 per cent in common entrance examination also secured admission in P.G. course. Since they are assured of the seats, a majority of AIIMS students have not been obviously working hard for preparing for the P.G. course. Similarly teachers have also not been putting their best effort in teaching or preparing them for P.G. course. These are reasonable inferences which can be drawn from the facts set out above. On the available material, we can on facts safely say that no case is made out for 33 per cent reservation. Even assuming that institutional reservation is per se not unconstitutional, still alternatively in the fads and circumstances of this case, we hold that the 33% quota for AIIMS Students is bad and unconstitutional and has proved counter-productive as far as academic excellence of AIIMS students is concerned. This is clear from the relevant data available on record and referred to above.

48. In other words, even if we are wrong on Point 2 in holding that institutional quota is no longer permissible, we hold alternatively that, so far as AIIMS is concerned, which is a premier institute, such quota is not permissible and that since 1978 the quota has resulted in substantial deterioration of standards in AIIMS and it was rightly withdrawn by the Government of India on 24-10-1994. Point 3(a) and 3(b) arc held accordingly.

Points 4 and 5:

49. As we shall show presently, this Court has, in an earlier Division Bench Judgment, which has become final, held that the disciplinary/ department-wise quoi for AIIMS students is bad.

50. The question of discipline or. department-wise reservation is very important. As we shall show a little later, but for the said reservation which is evidenced by the Table appended to the Scheme published on 17-1-1996, AIIMS students would not, but for two or three of them, have got into the creamy disciplines. It will be seen that as of today, the AIIMS students who are about 40 or 45 are knocking away most of the scats in the creamy disciplines. In some important disciplines not a single candidate from the general category is selected AIIMS students who indeed got 14% or 19% or 21% in entrance examination got in, while students in the general category with top ranks have been successfully excluded all these years.

51. At the outset, we may say and it was conceded before us - there is no ruling of the Supreme Court on the question whether a discipline-wise quota is permissible. If a University-wise quota is valid in certain situations (it serves a region or area), and a subject-wise institutional quota is bad, can it be that a discipline-wise quota is valid?

52. Learned counsel for the Students Union attempted, at the stage, to argue that each discipline could be equated with a separate college under the AIIMS. But then such a college-wise quota will be clearly discriminatory as held by the Supreme Court in Thukral Anjali's case and as held in P.K. Goel's case . On the other hand, it is argued for the petitioners that the Division Bench Judgment in Sandeep Tak v. AIIMS (CW 2347/45) dated 11-9-1995 has already decided that such a discipline-wise reservation is not valid and that the said judgment has become final and, therefore, the procedure-scheme adopted by AIIMS on 17- 1-1996 for Counseling, based on such discipline-wise quota, is a violation of the said Judgment.

53. In Sandeep Tak's case, petitioner secured 73.66% marks and got the 2nd rank and was given seat in MD (Opthalmology) while three students formerly of AIIMS who secured 52.60%, 52.16% and 54% were given seats in M. D. (Medicine), even though the first preference of Mr. Sanjiv Kak was M.D. (Medicine). The Division Bench referred to the discipline-wise allocation procedure at page 11 of the judgment and AIIMS sought to justify the procedure as one in vogue from 1978. The Court observed, in regard to 33% quota and the discipline-wise allocation : (pages 13, 14 of the judgment)

"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 post-graduation course and even if he gets admission, he may not get the speciality of his first preference.....

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...... 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 post-graduate course. There is no reservation/preference in allocation of the speciality. The procedure adopted by the Institute is without the authority of law, in granting reservation in specialities. It is discriminatory, arbitrary and in violation of Article 14 of the Constitution of India."

Thereafter, illustrations are given. They pointed out that the specialty-wise quota was discriminatory as it affected SC/ST students and more so as it affected general candidates. They then said (page 16 of the judgment).

"As noticed above, the seats in Medicine have gone in favour of candidates of the Institute who have secured less marks than Dr. Tak.... This is the fall out of the procedure followed by the Institute."

Having thus clearly held that the prospectus did not permit specialty-wise allocation to AIIMS students and that such allocation was discriminatory, the Bench indicated the procedure to be followed. It said :

"During Counseling, the candidates can opt for the subject of his choice depending upon availability of speciality when his/her turn for Counseling comes".

After saying so the Court held that the procedure indicated by them was illustrative and it was not for the Court to lay down the procedure for the Institute. It has experts who have to follow procedure which will be fair, just and reasonable. The impugned procedure which 'compromises' merit was bad. They concluded;

"In view of the aforesaid conclusion, in these matters, it is also not necessary to decide whether 33% reservation in favour of 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....."

They directed a seat to be given in July, 1995 session to Sanjiv Tak in M.D. (Medicine).

54. The reference to 50% in the above passage is, it must be noticed, not a reference to any reservation up to 50% for AIIMS students. It deals with total or "in all" reservation which exceeds 50%, and does not deal with the discipline-wise quota. This is clear from the above passage wherein the 'procedure' of discipline-wise allocation was clearly held to be discriminatory. The validity of 33% quota alone was left open.

55. The learned Judges, while dealing with the issue before them, did not have occasion to refer to Thukral Anjali's case not to P. K. Goel's case nor other cases. We have, as stated under points 2 and 3 held that 33% quota for AIIMS students is not valid. In so for as discipline-wise reservation before bad and discriminatory, Dr. Sanjiv Tak's case clearly holds it to be discriminatory. On that aspect, the judgment has become final as the AIIMS had not filed any appeal against the said judgment.

56. If, therefore, discipline-wise reservation has been already held to be bad by the Division Bench in Dr. Sanjiv Tak's case on 1-9-95, the AIIMS could not have "introduced it in the scheme or procedure published on 17-1-96. The Table which is attached to the Scheme prescribed discipline-wise reservation to AIIMS students and is, in our view, a flagrant violation of the judgment in Dr. Sanjiv Tak's course. We are clearly' of the view that there is no justification for the discipline-wise quota for AIIMS students to be continued for January 1996 session.

57. A look at the January 1996 discipline-wise quota in regard to creamy disciplines makes the position clear. In fact, in the rejoinder, dated 31-1-90, petitioners have stated what happened during Counseling on 22-1-96. Petitioner No. 1 had secured rank 10 and his marks were 68.667%. His choices were -

(1) M. D. (Obstetrics & Gynaecology)

(2) M. D. (Physiology)

Petitioner No. 2 got rank 21 and got 66.667%. His preference were :

(1) M. S. (Orthopaedics)

(2) M. D. (Medicine).

It is not denied that when petitioner I went for Counseling, he was told that out of four seats in Obstetrics and Gynaecology, two are reserved for AIIMS students, one for SC and one for ST. So far as January, 1996 is concerned (For July, one seat for AIIMS and one for general). The two seats in January, 1996 have gone to AIIMS students who got 52% and 46, 167 marks (with rank beyond 450 and 900). In other words, person who got rank 10 was not given while those with rank beyond 450 and 900 were given.

58. We are not reproducing the entire table attached to the procedure/Scheme published on 17-1-96. It contains columns wherein the seats in the creamy disciplines are mostly reserved for the AIIMS students in a totally arbitrary fashion and in contravention of the judgment in Dr. Sanjeev Tak's case of this Court which has become final. In some disciplines, no seat is made available for general category. We shall now advert to these facts.

59. The arbitrary manner in which the discipline-wise quota was introduced and implemented will be clear from the following : In July, 1992

Name of the discipline

%age

Rank

MEDICINE

AIIMS

49.50

AIIMS

49.33

GENERAL

75.67

(2)Obstetrics & Gynaecology :

AIIMS

36.33

GENERAL

Paediatrics

AIIMS

AIIMS

50.33

GENERAL

71.55

(2)January.

Medicine AIIMS

55.50

AIIMS

50.50

GENERAL

81.33

Obstetrics & Gynaecology

AIIMS

39.50

AIIMS

39.00

AIIMS

56.50

AIIMS

67.16

(None for General) Ophthalmology

AIIMS

20.833

(SC) AIIMS

28.17

AIIMS

34.83

AIIMS

46.83

AIIMS

26.33

GENERAL

61.67

GENERAL

67.00

GENERAL

58.83

Orthopaedics

AIIMS

(None for general) (3)   July

Medicine

AIIMS

35.67

AIIMS

57.33

AIIMS

28.67

GENERAL

70.16

Obstetrics & Gynaecology

AIIMS

22.66

(None for General) Obstetrics & Gynaecology

AIIMS

22.66

Obstetrics & Gynaecology

AIIMS

39.50

AIIMS

39.00

AIIMS

56.50

Surgery

AIIMS

52.50

AIIMS

27.66

GENERAL

68.83

January.

Medicine

AIIMS

51.50

AIIMS

51.17

AIIMS

37.17

AIIMS

36.33

AIIMS

52.67

(None for General) Obstetrics & Gynaecology

AIIMS

AIIMS

47.33

(None for General) Ophthalmology

AIIMS

43.17

GENERAL

64.67

GENERAL

66.00

GENERAL

66.00

GENERAL

73.00

Orthopaedics

AIIMS

45.33

AIIMS

47.83

(None for General) Paediatrics

AIIMS

51.55

AIIMS

52.83

AIIMS

43.50

AIIMS

53.33

(None for General) Radiodiagnosis

AIIMS

AIIMS

44.67

AIIMS

50.83

(None for General) Forensic Medicine

AIIMS

25.33

GENERAL

(5)   July

Opthalmology

AIIMS

GENERAL

64.33

GENERAL

68.00

January,

Medicine

AIIMS

51.16

AIIMS

59.16

AIIMS

61.16

GENERAL

71.50

GENERAL

69.83

Obstetrics & Gyanawology

AIIMS

53.33

GENERAL

67.50

Paediatrics

AIIMS

61.50

AIIMS

AIIMS

51.66

GENERAL

Radio-diaggosis

AIIMS

57.50

AIIMS

64.33

GENERAL

79.16

Surgery

AIIMS

59.50

AIIMS

51.50

AIIMS

52.33

GENERAL

67.33

GENERAL

66.83

July.

Medicines

AIIMS

52.67

AIIMS

52.17

(None for General) Obstetrics & Gynaecology

AIIMS

(None for General) Ophthalmology

AIIMS

57.83

AIIMS

51.67

GENERAL

73.67

 (Sanjiv Tak) Surgery

AIIMS

60.17

AIIMS

50.50

GENERAL

71.33

60. A comparison of the ranks of the General (merit) Candidates with ranks of AIIMS candidates and the fact that in several creamy disciplines, no seats as ail were allotted to General (Merit) candidates shows the manner in which the quota for AIIMS students in the disciplines has worked havoc. This is indeed a very sorry state of affairs.

61. We agree with the Division Bench in Sanjiv Tak's case that discipline-wise quota is bad. We have given additional material to support the view taken by the Division Bench in Sanjiv Tak's case (1995 (2) SCC 762) to hold that discipline-wise allocation of seats in PG courses for AIIMS students is bad. This decision of ours shall not apply to any discipline-wise reservation for SC/ST candidates. Our decision shall apply to AIIMS candidates as well as Rural BW/FW candidates. Points 4 and 5 decided accordingly.

POINT 6 :

62. We finally come to the validity of the percentile method introduced for the first time in this 1996 January Session.

63. This method is introduced along with the 33% quota and the discipline-wise quota for AIIMS students. We have already held the latter to be discriminatory. If the percentile method is brought in as a fair, reasonable or equitable method, it cannot serve the aforesaid purpose if it is combined with the 33% quota and the discipline-wise quota.

64. Even otherwise, the manner in which the percentile method has worked itself out for the January, 1996 session shows that the AIIMS students would still get into P. G. courses in AIIMS even if their marks are comparable to (or in some cases, even if they were inferior to) the marks obtained by SC/ST students. For example, in this very January 1996 session, an AIIMS student with 46.167 marks has got admission, that being the lowest mark for the AIIMS students who got admission in P. G. course. At the same time, the SC candidate with 46.167 was the lowest among SC candidates who secured admission. Candidates with as low as 52%, 48%, 47.333% and 46.167% from AIIMS got admission (and in fact got the creamy disciplines Obstetrics and Gynaecology, Medicine, and Opthalmology) while SC students with 52%, 51. 333% 50.167%, 47.833%, 47.167%, 46,667%, 46.500% and 46.167% got admission. While SC candidate of 46.167% got Community Medicine, AIIMS candidate with 46.157% was given the creamy subject of Obstetrics and Gynaecology. Twelve AIIMS were selected even though they got less marks than the SC candidate who secured 60.33. Similarly 16 AIIMS students got admission to P. G. Courses even though they got less marks than the ST student who got 62.167 Four ST students got 50.500, 49.500, 46.00, 45.500 which are comparable to the marks of several AIIMS students (marks have been set out above).

65. This shows that under the 65% percentile method, even if we take the 35% candidates who are at the top of the merit-list, the AIIMS students are able to get in even though their marks are less or comparable to marks of SC/ST students. Further, there being no minimum, if in the top 35% the lowest is quite a low mark, he would get in. That is not what is expected of an Institute like AIIMS. For the above reason, we are of the view that the percentile system does not also assure an equitable, fair or reasonable result.

Point 7:

66. In view of our findings, the position will be as follows. The students (other than ST, ST, R/BW/FW will have to be arranged according to merit and there has to be no quota of 33% for AIIMS students. The quota of 15% for SC, 7.5% for ST, 5% for R/BW/ FW is not disturbed.

67. There will be no discipline-wise quota except for SC, ST students. There will be no discipline-wise quota for AIIMS students or for R/BW/FW candidates. Under the Counseling method, the students (other than SC, ST students) will be called according to the merit list and the first person shall be given the choice of the seats in all disciplines (except the seats reserved for SC/ST). Once he gets an allotment as per his choice; the next candidate will be called in according to the merit list and he will opt for the discipline of his choice available when he is called in and so on.

68. We then come to the crucial question as to what should be done for the January, 1996 session. It was contended before us for the students of AIIMS that for this session, the AIIMS students were under the impression that they have the 33% quota and therefore, if the quota is not applied, they will Suffer extreme hardship. It is prayed alternatively that, therefore, in the event of our striking down the 33% quota, it should not be made applicable to this session.

69. It is true that a similar argument was rejected by the Supreme Court in P. K. Goel v. U. P. Medical Council, . But in a view this is a question of discretion and we feel that if the 33% quota is denied to AIMS students for January 1996 session, those students may suffer serious hardship. Further, it may lead to various other problems. Therefore, we are granting the AIIMS students the indulgence for the January 1996 session only that they will have this 33% quota out of the January, 1996 seats. This quota will not be there for the July, 1996 session.

70. So far as the discipline-wise quota for AIIMS students is Concerned, we are unable to grant a similar indulgence for the January 1996 session. Firstly, the said quota discipline-wise had already been held to be bad in Dr. Sanjiv Kak's case (1995 (2) SCC 762) by the Division Bench in C.W.P. 2347/95 by Judgment dated 11-9-1995 that judgment to which AIIMS was a party has become final. Further, even students had notice thereof long before the examination was held on 3-12-1995. Secondly, we have given abundant statistics as to how top-rankers and even SC/ST students were deprived of seats in creamy disciplines, while AIIMS students with marks as low as 14% and 19% were fitted into these seats in creamy disciplines. There is totally no justification for applying the discipline-wise quota as per the table prepared by the AIIMS which is followed at the time of Counseling and which is part of the scheme/ procedure dated 17-1-1996. Therefore, even for the January, 1996 session, there shall be no discipline-wise quota. The percentile method shall not also be followed for the reason already given. The SC/ST students of 1996 session shall continue to have the discipline-wise quota. The R/BW/FW students shall have their 5% reservation in the total number of seats as before but shall not have discipline-wise quota even for the January 1996 session. Fresh Counseling for all the students (except SC/ST students) shall, therefore, be held on the above lines.

71. Inasmuch as we have given the concession of 33% in the available seats of 1996 January session, we have to make a provision for the students in the General Category so that they are not deprived of the advantage which, but for the 33% would have gone to them i.e. General Category. We, therefore, direct seven seats to be increased for the January 1996 session for one or other of the leading disciplines like Obstetrics and Gynaecology, Medicine, Surgery, Paeliatrics, Ophthalmology, Orthopaedics, Raio-diagnosis, so as to compensate their grievance.

72. In the result, while declaring the legal position and procedure applicable from July, 1996 session onwards, we have balanced the cases of the AIIMS students as well as the cases of the students of the General Category for the January 1996 session. We have not applied our decision rigorously to the January 1996 session to the AIIMS students, but at the same time compensated the General Category Students to that extent. We have done this with a view also to see that no serious administrative problems are faced by the AIIMS immediately.

73. We dispose of the writ petition accordingly.

74. Order accordingly.