@marimphil wrote:
ALL INDIA FOURTH COUNSELING CASE IS READY TO BE PUT UP...Pls come forward and help[;'\/
this is is the draft put up by one of the petitioner ......
SYNOPSIS AND LIST OF DATES
That by way of the present Writ Petition the Petitioner seeks urgent directions from this Hon’ble Court against the States, who deliberately year after year do not comply with the counseling schedule for admission to post graduate seats in medicine with the mala fide intention of usurping the said seats belonging to the All India Quota and adding the said Seats to their own State Quota.
That for the last several academic years because of the States not complying with the counseling schedule fixed by the Respondent Nos.1 and 2 and approved by this Hon’ble Court, this Hon’ble Court has been directing an extended 2nd Round of Counseling after all the states have completed their 1st round of State Counseling. That this Hon’ble Court has been passing the said Orders to ensure that the 50% All India Quota which is purely merit based is given full effect to and is not diluted because of the malpractices being followed by the States.
That this Hon’ble Court vide Order dated 26.5.2009 in the case of Dr. Smita Nath Vs. Union of India (Writ Petition No. 216 of 2009) and Ors had directed an extended 2nd Round of Counseling to be conducted and had held as under:
“On 13.1.2009, exam was conducted by AIIMS for 50% post graduate medical seats for all government/municipal colleges in India (except for the government medical Colleges in the States of Andhra Pradesh and Jammu and Kashmir). The First Round of Counselling for these seats ended on 16.3.2009, which was conducted by Director General of Health Services (DGHS). Thereafter, the States and Uts commenced their first round of counselling which was to be completed by 10.4.2009.
However, most States did not complete their first round of counselling in time. The 2nd Round of All India Counselling by DGHS was conducted between 22.4.2009 and 8.5.2009. This, however, was incomplete since all the States/UTs did not report the correct number of All India Vacant Seats after the first round of State counselling in time.
We have perused the Order dated 2.5.2008 passed by this Court in the case of Dr. Amit Gupta and Others vs. Union of India and Others in I.A. No.17 of 2008 in W.P.(C) No.157 of 2005, where in similar circumstances this Court had directed an extended 2nd Round of All India Counselling to fill up those seats which could not be included in the Original 2nd Round of counselling.
In such circumstances, we direct that an extended 2nd Round of Counselling be conducted to fill up the seats which could not be filled up in the Original 2nd round of counseling due to incomplete information furnished by the States at the time when the 2nd Round of Counseling was conducted. All the States and UTs shall abide by the following schedule for the extended 2nd Round of counseling.”
It is submitted that pursuant to the said Order being passed by this Hon’ble Court about 400 post graduate medicine seats were added in the extended 2nd Round of All India Counseling which had been illegally usurped by the defaulting states.
That similar Orders dated 13.5.2010 and 13.5.2011 were passed by this Hon’ble Court in the case of Dr. Naval Asija Vs. Union of India being Writ Petition (C) 189 No.2010 and Vivek Dujeja and Ors Vs. Union of India and Ors being Writ Petition No. 197 of 2011 for the academic years 2010-2011 and 2011-2012.
That in the case of MBBS and BDS courses also the non-compliance by the States in conducting their first round of counseling was deprecated by this Hon’ble Court in the case of Dr. Mridul Dhar Dhar and Anr Vs. Union of India, (2005) 2 SCC 65. That this Hon’ble Court held in the said judgment as follows:
“7. It is a matter of anguish that despite various decisions of this Court and laying down of a time schedule for completion of admission process, the time schedule has not been adhered to at various stages by various authorities resulting in otherwise avoidable discontentment and hardship to the candidates. The observance of the time schedule is paramount for effective utilisation to all-India quota of medical and dental seats. The denial of a seat in the college of choice on the basis of one’s merit position leads to frustration and results in injustice to the young students. The admission to a professional course based on merit position is paramount for the career of a student. The omission and commission in respect of admissions this year, as is evident from the orders aforenoted, adversely affected the career of meritorious students in their not getting admission in the college of their choice. Any frustration and feeling of injustice at an impressionable age at which the students compete in all-India competition is neither desirable from the point of view of either the young students nor for the country’s future. We are concerned with the career of those bright candidates who compete in a tough all-India competition………”
“13. In various States, the first counselling and admissions in respect of State quota seats were not over and many States had not even commenced the process even though second round of counselling for allotment of seats from waiting list for all-India quota becoming vacant, as a result of candidates getting admission under State quota, was to commence on 1st August, to be completed by 8th August. The effect of the aforesaid inaction and also not sending timely intimation to DGHS is to deprive those who are high up in the merit list of All-India Entrance Examination and waiting to get admission in such vacated seats which otherwise would revert back to the State quota. The result is to effectively reduce 15% all-India quota and increase State quota seats. Directions that were issued to get requisite information from various States in respect of holding of counselling, and reporting of vacant seats to DGHS for admissions for 2004-05 have been earlier noticed. As stated above, despite such directions full and complete justice could not be meted out to all meritorious students regarding college of their choice as per their position in the merit list, on account of the time-frame and its all-India consequences on admissions and the possible result of extending the admissions much beyond the schedule date contrary to the aforesaid statutory regulations and resulting in grant of midstream admissions. To an extent possible, the seats of all-India quota would not revert to State quota. It was brought to our notice that in some cases the time schedule is deliberately not adhered to so that more number of seats may revert to State quota. If that be so, we deprecate the practice with a fond hope that such a practice would be discontinued failing which persons responsible therefor will have to face the consequences. Total impartiality is the need of the time and not the so-called loyalty to the State.”
That this Hon’ble Court vide Order dated 23.3.2012 in the case of Anand S. Biji Vs. State of Kerela and Ors permitted the Respondent Nos.1 and 2 to conduct online counseling for the All India Quota and also permitted a 3rd Round of Counseling.
That for the current academic year a Common Entrance Examination being the National Eligibility cum Entrance Test (PG) has been conducted by the National Board for Examinations and the Respondent No. 2 would conduct 3 rounds of All India Online Counseling for filling up the All India Quota seats.
Unfortunately, in the current academic year also a large number of states inter-alia Bihar, Maharashtra, Kerala, Gujarat, Orissa, West Bengal etc have defaulted and have not abided by the counseling time schedule and have not completed their First Round of Counseling in time to report the correct number of vacant All India Quota Seats to the Respondent No.1 and 2 in time for the same to be added in the 2nd Round of All India Counseling. That the above mentioned 6 states have about 1500 post graduate medical seats and therefore the 2nd round of All India Counseling conducted by the Respondent No. 2 became an empty formality because of non adherence by the States of the said time schedule for conducting their 1st round counseling.
That in such circumstances when many states have defaulted in complying with the above-mentioned time schedule, that the Petitioners are approaching this Hon’ble Court seeking appropriate directions for conducting an extended 3rd round of counseling after the states have conducted their 2nd round of counseling and completed their admission process pursuant thereto or in the alternative that 3rd round of All India Counseling be rescheduled in a manner that it is conducted only after all the States had conducted their two rounds of counseling and completed their admission process pursuant thereto so that the All India Quota is given full effect to and the defaulting states are not allowed to take advantage of their own wrong. Further, the interests of the Petitioners who are high rank holders in the All India Entrance Examination would be irreparably compromised if the seats which belong to the All India Quota are usurped by the States are not offered to them in the All India Quota.
That the Petitioners are also seeking strict action against the States who have not complied with the said counseling schedule.
That the Post Graduate Seats in Medicine in the Government and Municipal Colleges in all the states in India except for the states of Jammu and Kashmir and Andhra Pradesh are divided into two categories known as the All India Quota Seats and the State Quota Seats in equal proportion. That while the All India Quota seats are unreserved seats which are allotted only on the basis of All India merit, the State Quota Seats are allotted only to those students who have a domicile of the respective State or have studied MBBS from the respective State.
That the All India Quota seats are filled by way of three rounds of counseling, which are conducted by the Respondent Nos. 1 & 2. It may be mentioned that the 2nd Round of All India Counseling is conducted only after the first round of counseling for all the states is over and similarly the 3rd Round of Counseling ought to be conducted only after the 2nd Round of State Counseling is over. This is done to ensure that full effect is given to the All India Quota.
It is submitted that a medical post graduate student gets two ranks being the All India Rank and the State Rank depending on the State the said student has the domicile of or has passed the MBBS course from. That on the basis of the All India Rank and the State Rank an All India Merit list is prepared and separate State Merit lists are prepared for each of the States. That as such a student gets a choice of either taking a PG Medical seat from either the All India Quota or the State Quota. That the process of allocating the PG Medical seats is conducted through the process of All India Counseling and the State Counseling conducted by each of the State Governments individually. That as such the All India and the State Counseling are scheduled alternatively so that a student who has initially opted for an All India Quota seat subsequently opts for a State quota seat in the State counseling and vacates the All India Quota seat initially opted for, that vacant All India Quota seat should get added to the subsequent rounds of All India Counseling.
That it is for this reason that it is imperative that the States complete their Counseling in time so that they can correctly report the vacant All India Quota seats in time to the Respondent No.1 so that the same can be included in the All India Counseling. However, some states with mala fide intention intentionally do not complete their counseling in time so that the vacant All India Quota Seats get added to the State Quota and are not made available to the All India Quota in the subsequent rounds of All India counseling. It may be mentioned that the last round of state counseling is always conducted after the last round of the All India counseling and taking advantage of this fact many States in a malafide manner do not conform to the counseling schedule with the intention that the vacant All India Quota seats are not reported back to Respondent Nos. 1 and 2 for subsequent rounds of All India Counseling and are added to the State Quota in its last round of Counseling.
It is in these facts and circumstances that the Petitioner is approaching this Hon'ble Court.
Date
Events
That the Post Graduate Seats in Medicine in all the Government and Municipal Colleges in India except for the states of Jammu and Kashmir and Andhra Pradesh are divided into two categories known as the All India Quota Seats and the State Quota Seats in equal proportion. That while the All India Quota seats are unreserved seats which are allotted only on the basis of All India merit the State Quota Seats are allotted on the basis of State Merit and are offered only to those students who have the domicile of the respective State or who have passed their MBBS course from the State.
That the All India Quota seats are filled by way of three rounds of counseling, which are conducted by the Respondent Nos. 1 & 2. It may be mentioned that the 2nd Round of All India Counseling is conducted only after the first round of counseling for all the states is over and the third round of counseling ought to be conducted after the 2nd round of All India Counseling is over. It is submitted that a medical post graduate student gets two ranks being the All India Rank and the State Rank depending on State the said student has the domicile of or has passed the MBBS course from. That on the basis of the All India Rank and the State Rank an All India Merit list is prepared and separate State Merit lists are prepared for each of the States. That as such a student gets a choice of either taking a PG Medical seat from either the All India Quota or the State Quota. That the process of allocating the PG Medical seats is conducted through the process of All India Counseling and the counseling conducted by each of the State Governments individually. That as such the All India and the State Counseling are scheduled alternatively so that a student who has initially opted for an All India Quota seat subsequently opts for a State quota seat in the State counseling and vacates the All India Quota seat initially opted for, that vacant All India Quota seat should get added to the subsequent rounds of All India Counseling.
It is for this reason that the Respondent Nos. 1 and 2 before the 2nd and 3rd Round of All India Counseling call for vacant seats from all the States inasmuch as a large number of All India Seats become vacant after the first round of State Counseling.
That in the previous academic years i.e.2008-2009, 2009-2010, 2010-2011 a number of states had not completed their first round of counseling in time and thus were not in a position to report the correct number of vacant All India Quota seats to the Respondent in time. That this Hon'ble Court vide Order dated 26.5.2009 in the case of Dr. Smita Nath Vs. Union of India, W.P. (C) No.216 of 2009 had directed the Respondents to conduct an extended 2nd round of All India Counseling after all the states had completed their first round of counseling of State Counseling. Similar Orders dated 13.5.2010 and 13.5.2011 were passed in the case of Naval Asija Vs. Union of India W.P. (C) No.189 of 2010 for the academic year 2010-2011 and in the case of Vivek Dudeja Vs. Union of India W.P. (C) No. 197 of 2011 for the academic year2011-2012.
2012
23.3.2012
28.05.13
June 2013
The National Eligibility cum Entrance Test for PG Medical seats was conducted by the National Board for Examinations. That approximately 1 lac students take the said examination and the Petitioners have secured a high rank in the said examinations. That the Respondent Nos. 1 and 2 would fill up the said seats on the basis of the merit list prepared on the basis of the said examination through the process of 3 online rounds of All India counseling. That as mentioned above each round of counseling is to be conducted alternatively to the State rounds of All India counseling for the above mentioned reasons.
That this Hon’ble Court in the case of Anand S. Biji Vs. State of Kerela being I.A. No.16 in C.A. No.1944 of 1993 vide Order dated 23.3.2012 permitted the Respondents to conduct online All India Counseling. This Hon’ble Court also permitted a third round of All India Counseling vide the said Order.
That this Hon’ble Court in the case of Mridul Dhar (minor) & Anr. v Union of India & Ors. extended the last date of joining the MD/MS course to 31.07.13 vide order dated 28.05.13 for the current academic year.
That a similar situation to that of last several years has arisen in this current academic year also inasmuch as admittedly many States inter alia Gujarat, Bihar, Maharashtra, West Bengal, Orissa etc did not complete their counseling in time and did not report the correct number of vacant All India Quota seats to the Respondent No.1 in time to be included in its 2nd Round of All India counseling, and as such the 2nd Round of Counseling conducted by the Respondent No. 1 and 2 became a meaningless exercise.
That the above mentioned 6 states themselves have about 1500 post graduate medical seats. It is thus submitted that if the third round of All India Counseling is also conducted without all the States conducting their first and second rounds of counseling then the third round of All India Counseling would also become an empty formality as the All India Quota seats that would fall vacant after the first and second round of State conseling would not be reported and made available to the Respondent No. 1 and 2 to be added and offered in the third round of All India Counseling and consequently the rights of the Petitioners would be irreparably prejudiced. Further, full effect would also not be given to the All India Quota which would get reduced to much below 50% and the State quota would increase much more than 50%.
Hence the present Writ Petition.
IN THE SUPREME COURT OF INDIA
EXTRA ORDINARY ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. OF 2013
IN THE MATTER OF:
1. Dr. Fraz Naseem,
B – 98,
Abdul Fazal Apartment,
Vasundhara Enclave,
New Delhi – 96.
Dr. Bidyut Borah,
House No. 36 C,
Pocket – F,
GTB Enclave,
Dilshad Garden,
Delhi – 93
Dr. Kunal Ranjan,
C/o Mr. O. N. Jha,
Police Colony,
A – 61, Anishabad,
Patna,
Bihar.
Dr. Saurabh Kakkar,
B – 28,
Jal Vayu Vihar,
Sector – 21,
Noida,
U.P
Dr. Veronica Arora
A – 3 / 192,
Janakpuri,
New Delhi – 58.
Dr. Prerna Chadha,
M121,
Guru Harkishan Nagar,
Paschim Vihar,
Delhi – 87 .. PETITIONERS
VERSUS
1. Union of India
Represented by Secretary
Ministry of Health and Family Welfare
Nirman Bhawan, Maulana Azad Road
New Delhi
Director General of Health Services
Through Director General
Ministry of Health and Family Welfare
Nirman Bhawan, Maulana Azad Road
New Delhi
State of Assam
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Guwahati
State of Bihar
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Patna, Bihar
State of Chhatisgarh
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Raipur, Chhatisgarh
State of Goa
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Panaji, Goa
State of Gujarat
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Gandhinagar, Gujarat
State of Harayana
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Chandigarh
State of Himachal Pradesh
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Shimla, Himachal Pradesh
State of Jharkhand
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Ranchi, Jharkhand
State of Rajasthan
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Jaipur, Rajasthan
State of Karnataka
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Bangalore, Karnataka
State of Kerela
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Thiruvananthapuram, Kerela
State of Madhya Pradesh
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Bhopal, Madhya Pradesh
State of Maharashtra
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Mumbai, Maharashtra
State of Orissa
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Bhubaneshwar
Union Territory of Pondicherry
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Pondicherry
State of Punjab
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Chandigarh
State of Tamil Nadu
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Chennai
State of Uttar Pradesh
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
State of West Bengal
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Kolkata
Union Territory of Chandigarh
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Chandigarh
State of Delhi
Represented by Secretary
Ministry of Health and Family Welfare
Government Secretariat
Delhi
Medical Council of India
Through
The President
Sector 8, Pocket 14
Dwarka-1
New Delhi-77 … RESPONDENTS
ALL RESPONDENTS ARE CONTESTING RESPONDENTS
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING A WRIT/ ORDER OR DIRECTION IN THE NATURE OF A WRIT OF MANDAMUS DIRECTING THE RESPONDENT STATES AND UNION TERRITORIES TO REPORT THE CORRECT VACANCY OF ALL INDIA QUOTA SEATS IN POST GRADUATE MEDICINE TO THE RESPONDENT NOS.1 AND 2 AND TO DIRECT THE RESPONDENT NO.2 TO CONDUCT THE THIRD ROUND OF ALL INDIA COUNSELING ONLY AFTER ALL THE STATES HAVE CONDUCTED THEIR TWO ROUNDS OF COUNSELING OR IN THE ALTERNATIVE TO CONDUCT AN EXTNDED 3rd ROUND OF COUNSELING TO FILL UP THE VACANT ALL INDIA QUOTA SEATS AFTER THE STATES HAVE COMPLETED THEIR TWO ROUNDS OF COUNSELING AND HAVE COMPLETED THEIR ADMISSION PROCESS PURSUANT THERETO AND TO TAKE STRICT ACTTION AGAINST THE DEFAULTING STATES AND UNION TERRITORIES FOR FAILING TO COMPLY WITH THE COUNSELING SCHEDULE
TO,
THE HON’BLE CHIEF JUSTICE OF INDIA
HIS COMPANION JUDGES AND OF THE
SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE
PETITIOENRS ABOVE NAMED
MOST RESPECTFULLY SHEWETH:
1. This is a Writ Petition under Article 32 of the Constitution of India praying for a direction to all the states to correctly report the vacant All India Quota Seats after conducting their First and Second Round of Counseling and to direct the Respondent No.1 and 2 to reschedule the 3rd Round of All India Counseling after the said vacant All India seats have been reported to them by the States or in the alternative to conduct an extended third round of counseling after all the States have conducted their 2 rounds of State Counseling and reported the vacant All India Quota seats to the Respondent No. 1 & 2.
The Petitioners are qualified doctors and they have secured high ranks in the National Eligibility cum Entrance Test for PG medical seats conducted by the National Board for Examinations in which approximately 1 lac students appear.
The Respondent Nos.1 is the Union of India, Ministry of Health and Family Welfare. That Respondent No.2 is the Director General of Health Services, who is responsible for conducting the All India Counseling. Respondent Nos. 3 to 24 are States and Union Territories. That Respondent No.24 is the Medical Council of India.
Brief Facts
4. The Hon'ble Supreme Court in the case of Pradeep Jain v. Union of India, (1984) 3 SCC 65 held that for admissions to Post Graduate Level Courses in Medicine such as M.D., M.S. etc, merit should be the most important criteria and in no event reservation based on residence/ institutional preference should exceed 50% of the total number of seats in such courses. The relevant extract from the said judgment is reproduced herein-below:-
“22. So much for admission to the MBBS course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to the post-graduate courses, such as, MD, MS and the like. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. It was rightly pointed out by Krishna Iyer, J., in Jagdish Saran case, and we wholly endorse what he has said:
“The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of specialty where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. (SCC pp. 778-79, para 23)
If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation’s human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country’s development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation’s talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless. (SCC p. 785, para 39)
Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists, not humdrum second-rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post-graduate or post-doctoral.” (SCC p. 786, para 44)
These passages from the judgment of Krishna Iyer, J., clearly and forcibly express the same view which we have independently reached on our own and indeed that view has been so ably expressed in these passages that we do not think we can usefully add anything to what has already been said there. We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to post-graduate courses are concerned, for pampering local feeling, will boomerang. We may with advantage reproduce the recommendation of the Indian Medical Council on this point which may not be the last word in social wisdom but is certainly worthy of consideration:
“Students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the Universities.”
The Medical Education Review Committee has also expressed the opinion that “all admissions to the post-graduate courses in any institution should be open to candidates on an all-India basis and there should be no restriction regarding domicile in the State/Union Territory in which the institution is located”. So also in the policy statement filed by the learned Attorney General, the Government of India has categorically expressed the view that:
“So far as admission to the institutions of post-graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all-India merit subject to constitutional reservations in favour of Scheduled Castes and Scheduled Tribes.”
We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post-graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis.”
That in the case of Dinsesh Kumar (Dr) Vs. Motilal Nehru Medical College, (1986) 3 SCC 727, the Hon'ble Supreme Court increased the reservation on the basis of residence/ institutional preference in Post Graduate Medical Courses from 50% to 75% .
That a Constitution Bench of the Hon'ble Supreme Court in the case of Saurabh Chaudri v. Union of India,(2003) 11 SCC 146, once again restored the original scheme formulated in the case of Dr. Pradeep Jain and once again confined the reservation on the basis of residence/ institutional preference to 50%. The relevant extract from the said judgment is reproduced herein-below:-
However, the test to uphold the validity of a statute on equality must be judged on the touchstone of reasonableness. It was noticed in Dr Pradeep Jain case that reservation to the extent of 50% was held to be reasonable. Although subsequently, in Dr Dinesh Kumar (II) case it was reduced to 25% of the total seats. The said percentage of reservation was fixed keeping in view the situation as then existing. The situation has now changed to a great extent. Twenty years have passed. The country has during this time produced a large number of postgraduate doctors. Our Constitution is organic in nature. Being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding.
Having regard to the facts and circumstances of the case, we are of the opinion that the original scheme as framed in Dr Pradeep Jain case should be reiterated in preference to Dr Dinesh Kumar (II) case Reservation by way of institutional preference, therefore, should be confined to 50% of the seats since it is in public interest.
The National Eligibility cum Entrance Test for PG Medical seats was conducted by the National Board for Examinations. That approximately 1 lac students take the said examination and the Petitioners have secured high ranks in the said examinations.
It may be mentioned that all the Post Graduate Seats in Medicine in all the states in India except for the states of Jammu and Kashmir and Andhra Pradesh are divided into two categories known as the All India Quota Seats and the State Quota Seats in equal proportion. That while All India Quota seats are unreserved seats which are allotted only on the basis of All India merit in the National Eligibilty cum Entrance Test, the State Quota Seats are allotted on the basis of the State Merit and only the students having the domicile of the respective State and/or those who have passed the MBBS from the said State are eligible for the said seats.
That the All India Quota seats are filled by way of three rounds of counseling, which are conducted by the Respondent Nos. 1 and 2. It may be mentioned that the 2nd Round of All India Counseling is conducted only after the first round of counseling for all the states is over and the third round of All India Counseling ought to be conducted only after the second round of state Counseling has been completed. This is done to ensure that full effect is given to All India Quota. It is submitted that a medical post graduate student gets two ranks being the All India Rank and the State Rank depending on State the said student has the domicile of or has passed the MBBS course from. That on the basis of the All India Rank and the State Rank an All India Merit list is prepared and separate State Merit lists are prepared for each of the States. That as such a student gets a choice of either taking a PG Medical seat from either the All India Quota or the State Quota. That the process of allocating the PG Medical seats is conducted through the process of All India Counseling and the counseling conducted by each of the State Governments individually. That as such the All India and the State Counseling are scheduled alternatively so that a student who has initially opted for an All India Quota seat subsequently opts for a State quota seat in the State counseling and vacates the All India Quota seat initially opted for, that vacant All India Quota seat should get added to the subsequent rounds of All India Counseling.
It is for this reason that the Respondent before the 2nd Round of All India Counseling calls for vacant seats from all the States inasmuch as a large number of All India Seats become vacant after the first round of State Counseling.
That for the last several academic years because of the states not complying with the counseling schedule fixed by the Respondent Nos.1 and 2 and approved by this Hon’ble Court, this Hon’ble Court has been directing conducting an extended 2nd Round of Counseling after all the states have completed their 1st round of State Counseling. That this Hon’ble Court has been passing the said Orders to ensure that the 50% All India Quota which is purely merit based is given full effect to and is not diluted because of the malpractices being followed by the States.
That this Hon’ble Court vide Order dated 26.5.2009 in the case of Dr. Smita Nath Vs. Union of India and Ors had directed an extended 2nd Round of Counseling to be conducted and had held as under:
“On 13.1.2009, exam was conducted by AIIMS for 50% post graduate medical seats for all government/municipal colleges in India (except for the government medical Colleges in the States of Andhra Pradesh and Jammu and Kashmir). The First Round of Counseling for these seats ended on 16.3.2009, which was conduced by Director General of Health Services (DGHS). Thereafter, the States and Uts commenced their first round of counseling which was to be completed by 10.4.2009.
However, most States did not complete their first round of counseling in time. The 2nd Round of All India Counseling by DGHS was conducted between 22.4.2009 and 8.5.2009. This, however, was incomplete since all the States/UTs did not report the correct number of All India Vacant Seats after the first round of State counseling in time.
We have persued the Order dated 2.5.2008 passed by this Court in the case of Dr.Amit Gupta and Others vs. Union of India and Others in I.A. No.17 of 2008 in W.P.(C) No.157 of 2005, where in similar circumstances this Court had directed an extended 2nd Round of All India Counseling to fill up those seats which could not be included in the Original 2nd Round of counseling.
In such circumstances, we direct that an extended 2nd Round of Counseling be conducted to fill up the seats which could not be filled up in the Original 2nd round of counseling due to incomplete information furnished by the States at the time when the 2nd Round of Counseling was conducted. All the States and UTs shall abide by the following schedule for the extended 2nd Round of counseling.”
It is submitted that pursuant to the said Order being passed by this Hon’ble Court about 400 post graduate medicine seats were added in the extended 2nd Round of All India Counseling which had been illegally usurped by the defaulting states.
That similar Orders dated 13.5.2010 and 13.5.2011 were passed by this Hon’ble Court in the case of Dr. Naval Asija Vs. Union of India being Writ Petition (C) No. 189 of 2010 and Vivek Dujeja and Ors Vs. Union of India and Ors being Writ Petition No.197 of 2011 for the academic years 2010-2011 and 2011-2012.
Annexed herewith and marked as Annexure-"P-1" is a copy of the Order dated 26.5.2008 in the case of Dr. Smita Nath Vs. Union of India and Ors Writ Petition (Civil) No.216 of 2009.
Annexed herewith and marked as Annexure-"P-2" is a copy of the Order dated 13.5.2010 in the case of Dr. Naval Asija Vs. Union of India being Writ Petition (C) No. 189 of 2010
Annexed herewith and marked as Annexure-"P-3" is a copy of the Order dated 13.5.2011 in the case of Dr. Vivek Dudeja Vs. Union of India being Writ Petition (C) No. 197 of 2011.
That this Hon’ble Court vide Order dated 23.3.2012 in the case of Anand S. Biji Vs. State of Kerela and Ors permitted the Respondent Nos.1 and 2 to conduct online counseling for the All India Quota and also permitted a 3rd Round of Counseling.
Annexed herewith and marked as Annexure-P-4 is a copy of Order dated 23.3.2012 in the case of Anand S. Biji Vs. State of Kerela.
That this Hon’ble Court in the case of Mridul Dhar (minor) & Anr. v Union of India & Ors. extended the last date of joining the MD/MS course to 31.07.13 vide order dated 28.05.13 for the current academic year.
Annexed herewith and marked as Annexure P – 5 is a copy of order dated 13.05.13 of this Hon’ble Court passed in Mridul Dhar (Minor) & Anr. V Union of India.
Unfortunately, in the current academic year also as a large number of states inter-alia Bihar, Maharashtra, Kerala, Gujarat, Orissa, West Bengal etc have defaulted and have not abided by the counseling time schedule and have not completed their First Round of Counseling in time to report the correct number of vacant All India Quota Seats to the Respondent No.1 and 2 in time for the same to be added in the 2nd Round of All India Counseling. That the above mentioned 6 states themselves have about 1500 post graduate medical tests and therefore the 2nd round of All India Counseling conducted by the Respondent No. 2 became an empty formality because of non adherence by the States of the said time schedule for conducting their 1st round counseling.
Annexed herewith and marked as Annexure-"P-6 (Colly)" are copies of the Prospectus and Counseling procedure details dated nil.
Annexed herewith and marked as Annexure-"P-7" are copies of the Schedule of the All India Counseling dated nil.
Annexed herewith and marked as Annexure-“P-8 (colly)” are copies of the relevant pages from the prospectuses/ Notifications of the States of Maharashtra, Madhya Pradesh, Rajasthan, Assam, Haryana, Uttar Pradesh, Uttarakhand, West Bengal, Delhi and Himachal Pradesh.
That a chart of States Counseling schedule which is annexed hereto would clearly demonstrate that most of the states had not completed their first round of counseling before the 2nd round of All India Counseling which made the 2nd round of All India Counseling a meaningless exercise.
Annexed herewith and marked as Annexure-"P-9" is a copy of the Chart showing the counseling schedule of some states dated Nil.
Hence, the present Writ Petition.
GROUNDS
A. Because the Hon'ble Supreme Court has held in the cases of Saurabh Chaudhri Vs. Union of India 2003 (11) SCC 146 (Constitution Bench) and in the case of Mridul Dhar and Anr Vs. Union of India and Ors 2005 (2) SCC 65 (Three Judge Bench), that merit ought to be the paramount criteria while granting admissions to medical courses and therefore full effect ought to be given to the All India Quota in admissions to medical courses. It is relevant to mention that in the case of Saurabh Chaudhuri, a Constitution Bench of this Hon'ble Court had increased the All India Quota in Post Graduate Medical Admissions from 25% to 50%.
B. Because the All India Quota Seats (50% of the Seats) are allotted on the basis of All India Merit which is based on the result of the National Eligibility cum Entrance Test for PG seats in medicine which is conducted by the National Board of Examination.. The remaining 50% of the seats form part of the State Quota, which reflect only the local talent of the State, as a student has to have a domicile of the State to be eligible for the said Quota. It is thus submitted that full effect ought to be given to the All India Quota.
C. Because admittedly many states did not complete their first round of counseling and the admission process in time and did not report the correct number of vacant seats to the Respondent No.2 in time to be included in the 2nd round of All India Counseling, thereby making the 2nd Round of All India Counseling meaningless.
D. It is submitted that meritorious students such as the Petitioners who have secured a rank in the All India Examination which is conducted by National Board of Examinations, should not be prejudiced because of any action/ inaction on the part of the Respondents..
E. Because of the above-mentioned blatant violation of the above-mentioned States and Universities, the seats that were to revert/ made available to the All India Quota after the first round of State Counseling would not revert and this would frustrate the Third Round of All India Counseling.
F. Because the defaulting States should not be allowed to take advantage of their own wrong inasmuch as if the said States are not compelled to report the vacant seats of All India Quota to the Respondent after competing their First Round of Counseling, then the said seats would revert back to the said States, thereby causing unjustified gain to the said States.
The Petitioners have not filed any similar Writ Petition either before this Hon'ble Court, or any other High Court praying for the same reliefs as are claimed in the present Petition.
This petition is filed bona fide and in the interest of justice.
That the Petitioners have no adequate or equally efficacious remedy but to approach this Hon'ble Court by way of the present Writ Petition.
PRAYER
In view of the facts and circumstances stated above, it is most respectfully prayed that this Hon’ble Court may be pleased to:
a) Issue an appropriate Writ/ Order or Direction in the nature of a Writ directing the Respondent States to report the vacant All India Quota Seats after conducting their Second round of State Counseling;
b) Issue an appropriate Writ Order or direction in the nature of a Writ directing the Respondent Nos. 1 and 2 to reschedule the third round of All India Counseling after all the States have correctly reported the vacant All India Quota seats after the second round of State Counseling;
c) Issue an appropriate Writ/ Order or Direction in the nature of a Writ directing the Respondent to conduct an extended Third Round of Counseling/ Fourth Counseling of All India Counseling after all the States have correctly reported the vacant All India Quota Seats after the Second Round of State Counseling;
d) Issue an appropriate Writ/ Order or Direction to the Respondents to ensure that full effect is given to the All India Quota for All India Post Graduate Medical and Dental Seats;
e) Issue an appropriate Writ/ Order or Direction taking punitive action against the defaulting states and union territories for not complying with the counseling schedule;
f) Pass any other or further Order(s) as this Court deems fit in the facts and circumstances of the present case.
Couple of observations:
1. People who have got < 40 percentile in reserved category also been called. Earlier advertisement clearly stated that minimum cutoff even for reserved cat is 40 percentile. This change is unfair to other unreserved candidates as the seats for SC/ ST would have been passed to general students otherwise.
Domicile criteria for BC I and BC II: Notice says that students will get the benefit of either BC I or BC II who had applied OBC as domicile state category & Jharkhand as Domicile State in NEET PG 2013. The problem is most of the students have residential certificates for Jharkhand and are domiciled in Bihar. Such students automatically lose the reservation benefits.
Just wanted to highlight the same to all so that necessary action can be taken against for the benefit of larger audience.
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