Anusar Gupta vs All India Institute Of Medical ...
2013 Latest Caselaw 2704 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on   : 01.07.2013
                               Judgment pronounced on : 02.07.2013

+      W.P.(C) 3926/2013

       ANUSAR GUPTA                                    ..... Petitioner
                               Through: Mr A.K. Singla, Sr. Adv with
                               Mr Nitink K. Gupta and Mr Deepak,
                               Advs.

                         Versus

       ALL INDIA INSTITUTE OF MEDICAL SCIENCES, NEW
       DELHI & ANR.
                                                   ..... Respondents
                      Through: Mr Mukul Gupta Sen, Ms Anjali
                      Chauhan and Mr Rishab Kaushik, Advs for
                      Respondent No. 1
                      Mr Sudhir Nandrajog, Sr. Adv with Mr
                      Rajeshwar Dagar and Mr Swastik Solanki, Adv
                      for R-3/Applicant.

       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

The respondent No. 1, All India Institute of Medical Sciences,

conducts entrance test for admission to various medical courses,

including MDS. Central Educational Institutions (Reservation in

Admission) Act, 2006, inter alia, provides out of the „annual permitted

strength in each branch of study or faculty‟, 27% seats shall be reserved

for Other Backward Classes, it also provides for reserving 15% seats for

Scheduled Castes and 7.5% for Scheduled Tribes. The respondent No. 1

held an all India examination for admission to various courses, including

MDS on 12th May, 2013. The petitioner, who belongs to OBC category,

appeared in the said examination and secured first rank amongst the

OBCs candidates. The examination was held for five seats in MDS,

comprising one seat each in Conservative Dentistry, Orthodontics and

Oral & Maxillofacial Surgery and two seats in Prosthodontics. The

grievance of the petitioner is that not even a single seat has been reserved

for OBCs candidates in the examination held on 12.05.2013, as a result of

which despite holding first rank amongst OBCs candidates and there

being 20% reservation for such candidates, admission has not been

granted to him. The petitioner is accordingly seeking a writ or order,

directing respondent No. 1 to reserve 27% seats out of total seats in MDS

course for OBC category and allow him to attend the counseling for

admission to the said course. He is also seeking declaration of the current

allocation of seats for OBC category to be illegal.

2. The writ petition has been contested by respondent No. 1 as well as

by one Dr. Bhaskar Aggarwal, who, on his application, has been

impleaded as a party to the writ petition, he being the 4 th candidate in the

order of merit for admission to the MDS course. Since three seats have

been allocated to General Category and one to SC category, Shri Bhaskar

Aggarwal is likely to get the 5th seat in case the petitioner does not get

that seat.

3. In its counter-affidavit, respondent No. 1--All India Institute of

Medical Sciences has, inter alia, stated that for calculating reservation

quota for SC/ST and OBC candidate, a point wise roster is used by it.

For any session, points are calculated by multiplying 0% reservation to

the number of seats being advertised for that session and points are added

to the balance point, if any, carried forward from previous session. If the

total points are +.5 or more in any category, i.e., SC, ST & OBC,

seat/seats is/are advertised in that category. This scheme is being

followed since July, 2012.

4. The following is the Chart, indicating reservation made in the

examination conducted for the sessions commencing July, 2012, January,

2013 and July, 2013:-

 July, 2012 Session


Speciality                Total   UR   SC   ST         OBC




Surgery




January 2013 session


Speciality                Total   UR   SC   ST         OBC




Surgery




July 2013 Session


Speciality                Total   UR   SC   ST         OBC









Surgery

The summary of seats advertised in last three sessions, after

implementation of point based roster scheme and the balance point due

for different categories, is, as stated hereinbelow:

Orthodontics


Session                         UR           SC        ST            OBC




Balance point due                            -.250     +.375         +.350


Prosthodontics
Session                         UR           SC        ST            OBC









Balance point due               -.250   +.375         +.350


Conservative Dentistry
Session                    UR   SC      ST            OBC




Balance point due               -.250   +.375         +.350




Oral & Maxillofacial Surgery
Session                    UR   SC      ST            OBC




Balance point due               +.450   +.225         -.190

The contention of respondent No. 1 is that since the balance point

in OBC category was less than .5 in July, 2013, no such seat in the said

category was advertised in the aforesaid session.

5. A perusal of the prospectus issued by respondent No. 1 for

admissions during July, 2013 session would show that no reservation for

OBC category was provided against any of the five seats in MDS Course.

The seats in Conservative Dentistry, Orthodontics and Oral &

Maxillofacial Surgery being one each were allocated to General Category

candidates, whereas one seat each in Prosthodontics was allocated to

General Category and SC category. No allocation was made for ST

candidates.

6. As noted earlier, Section 3 of Central Educational Institutions

(Reservation in Admission) Act, 2006 provides for reservation in the

"annual permitted strength in each branch of study or faculty". The

emphasis thus is on „annual strength‟ in „each branch of study‟. The

expression "annual permitted strength" has been defined in Section 2 (b)

to mean the number of seats in a course or a programme for teaching or

instruction in each branch of study or faculty authorized by an

appropriate authority. The expression "teaching or instruction in any

branch of the study" has been defined to mean teaching or instruction in a

branch of study, leading to three principal levels of qualifications at

bachelor, masters and doctoral levels.

7. The first question which arises for consideration is as to whether

for the purpose of reservation, the whole of the strength of MDS, i.e., five

seats should be taken as the annual permitted strength or Conservative

Dentistry, Orthodontics and Oral & Maxillofacial Surgery have to be

taken as separate branches of study or faculty, in terms of Section 3 of the

Act. As noted earlier, the emphasis of the Act is upon "annual permitted

strength", meaning thereby that if otherwise feasible, the attempt has to

be to provide reservation to each category, i.e., Scheduled Castes,

Scheduled Tribes and OBCs on an annual basis. Since admission to the

MDS course is being made session wise, once in January and then in

July, the permitted strength in each session has to be taken as the annual

permitted strength in terms of Section of the Act.

8. A perusal of Annexure-I of the counter-affidavit of respondent No.

1 would show that in July, 2012, considering the seats available for

Orthodontics, Prosthodontics and Oral & Maxillofacial Surgery, no

reservation was provided for SC candidates since the percentage of their

points, on the basis of 15% reservation came to less than .5. Same was

the position with respect to ST category. One seat each was provided to

OBCs candidates in Orthodontics, Prosthodontics and Conservative

Dentistry since their share in the seats available in each of these

specialties was found to be more than .5. No reservation to OBC

candidates was provided in Oral & Maxillofacial Surgery since their

share in the only seat available in this speciality was found to be 0.27%.

The share of SC and ST candidates in various specialities was

carried forward to January, 2013. The negative balance of OBCs

candidates in Orthodontics, Prosthodontics and Conservative Dentistry on

account of allocation of one seat each in these categories to them during

July, 2012 was also carried forward to January, 2013. As a result, no

reservation was provided for Orthodontics, Prosthodontics and

Conservative Dentistry to OBCs candidates in January, 2013. The only

seat available in Oral & Maxillofacial Surgery was, however, provided to

them after clubbing the brought forward points of 0.27 and adding them

with 0.27 points for the session January, 2013. There was only one seat

each in Orthodontics and Conservative Dentistry both of which were

provided to SC candidates on account of their percentage of the said

session, after clubbing with the carried forward percentage of July, 2012

being more than .5. Thus, out of five seats, three went to reserved

categories and two went to General Category candidates in the session.

In July, 2013, applying the same formula of carrying forward the

positive/negative point and adding the same to the points of that session,

out of two seats in Prosthodontics, one was reserved for SC candidate and

the remaining one seat in seat in Prosthodontics as well as one seat each

in Conservative Dentistry, Orthodontics and Oral & Maxillofacial

Surgery went to General Category candidates.

9. As a result of application of the formula devised by respondent No.

1, not a single seat went to SC or ST candidate in July, 2012 despite their

share in the annual permitted strength being 15% and 7.5% respectively

and the number of vacant seats being 8. On the other hand, OBCs

candidates got as many as three out of eight seats though reservation

provided for them was only 27%. In the session January, 2013, SC

candidates got two out of five seats which comes to 40% share though

the quota reserved for them was only 15%. This time also ST candidates

did not get even a single seat though one seat was provided for OBCs

candidates. For the Session July, 2013, not a single seat has been

provided to OBC candidates, despite reservation provided for them being

27%. Even in this session, no seat has been provided for ST candidates.

General Category candidates got 4 out of five seats, despite there being

49.5 % reservation. Thus, the formula adopted by respondent No. 1 is not

in conformity with the legislative mandate since sometimes the reserved

category candidates are getting more than their due shares and sometimes

they are not getting the share which ought to have come to them.

Moreover, despite there being only one seat each in Prosthodontics and

Oral & Maxillofacial Surgery in January, 2013, the seats went to SC

category, thereby resulting in 100% reservation, in case each speciality is

taken as an individual branch in terms of Section 3 of the Act and 100%

reservation is not permissible in law. That apart, there is no legal sanctity

behind the formula adopted by respondent No. 1 for allocation of seats

amongst various categories in the MDS course. Considering the meager

number of seats available in various specialities, the legislative mandate

cannot be achieved in case the formula adopted by respondent No. 1 is

allowed to continue. Whether the legislative mandate can be achieved by

treating all the seats in MDS, irrespective of the speciality, as one branch

of study and providing reservation accordingly in terms of Section 3 of

the Act, is for the respondent No. 1 to examine. But, the formula applied

by it is neither legal nor just and fair.

10. A perusal of clause 12E of the prospectus issued by respondent No.

1 would show that the order of counseling will be General/50% AIIMS

preferential candidates of total MBBS seats of AIIMS/ST/SC/OBC. The

counseling is to be done strictly by combined merit list starting from

Rank No. 1. The candidates in order of merit have to exercise their

choice of subject according to availability of seats. This provision in the

prospectus is an indication that respondent No. 1 has been treating MDS

as one branch of study and the specialities are being treated only as

different subjects in the same branch of study. Otherwise, there would be

no question of allocating the specialities on the basis of choice of the

candidate and availability of the seats at the time of counseling.

11. The next question which arises for consideration is as to what

would be the appropriate order to be passed in the facts and

circumstances of the case. As far as admissions for July, 2013 session are

concerned, considering that the petitioner did not challenge the allocation

of seats amongst General Category candidates and reserved category

candidates before appearing in the examination and participated in the

admission process, pursuant to the prospectus which provided no

reservation for OBC candidates, I am of the view that the admission

process requires no interference by the Court and should be allowed to be

completed as per the allocation notified in the prospectus. However, for

future admissions, respondent No.1 is directed to examine the matter

afresh in the light of the provisions contained in Central Educational

Institutions (Reservation in Admission) Act, 2006, and the anomalies

pointed out in this order and take a fresh decision in the matter of

providing reservation to SC/ST/OBC candidates in admission to MDS

course, in consultation with respondent No. 1, Union of India, within two

months from the date of this order.

The writ petition stands disposed of accordingly.

Interim order dated June 10, 2013, directing keeping one seat

available, is hereby vacated.

V.K.JAIN, J

JULY 02, 2013 BG