IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No.1245 of 2010. Along with C.W.P.1673 of 2010. C.W.P.1674 of 2010. Dated of Decision: May 25, 2010. 1. C.W.P. No.1245 of 2010. Pancham Kumar. …… Petitioner. Versus State of H.P. and others. …. Respondents. For the Petitioner : Mr. Ajay Mohan Goel, Advocate. For the Respondents : Mr. R.K.Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General, for respondents-State. Mr. B.C. Negi, Advocate, for respondent-University. 2. C.W.P. No.1673 of 2010. Ranvijay Singh. …… Petitioner. Versus State of H.P. and others. …. Respondents. For the Petitioner : Mr. Shrawan Dogra, Advocate. For the Respondents : Mr. R.K.Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General, for respondents-State 3. C.W.P. No.1674 of 2010. Nishant Vardhan. …… Petitioner. Versus State of H.P. and others. …. Respondents. For the Petitioner : Mr. Shrawan Dogra, Advocate. For the Respondents : Mr. R.K.Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General, for respondents-State - 2 - Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes . Kurian Joseph, Chief Justice (oral): These cases pertain to the admissions to the Post Graduate Decree Course of the Medical College in Himachal Pradesh. It is submitted that in view of the interim order dated 4.5.2010, no further orders are required in these writ petitions, since, counseling and admissions were done in terms of the interim order. The order reads as follows:- “CWP No.204 of 2010 with CWP Nos.1077/2010, 1245/20101673/2010 & 1674/2010. One of the main issues to be considered in these cases pertains to the allocation of seats for Post Graduate courses in the Medical Colleges in the State of Himachal Pradesh. Of the total seats available, 50% are to be filled up from among the All India Quota. Out of the 50% available for the State, 70% of the seats are allotted to ‘in service candidates’ (GDO - General Duty Officers) and 30% to open merit candidates (direct candidates). There are other issues like definition of in service, dispute regarding the seats being marked as recognized and permitted etc. We do not intend to go into these controversies at this stage since in our view those are to - 3 - be decided only at the time of disposal of the writ petition, if required. Therefore, we limit our consideration to the main controversy regarding the allocation of seats within the 50% seats. The controversy is whether the counselling should be on the basis of merit in the common entrance test or whether it should be proportionately rotated between in service and open merit candidates so that the in service candidates will also get an assured opportunity to opt for creamy specialties. 2. It is not in dispute that hitherto in the State of Himachal Pradesh, the counseling for the admission to the Post Graduate Courses in Medicine was conducted on category / specialty basis. A six point roster was followed; First seat to HPS (In service); Second seat to direct candidate (Open merit); Third seat to HPHS; Fourth seat to HPHS; Fifth seat to direct candidate; and Sixth seat to HPHS. “The roster will be repeated after every six seats.” 3. However, in the prospectus for admission to the courses from this year, there is a change in the policy with regard to the admission to the Post Graduate Courses. As per the changed policy, the successful candidates of all categories are given opportunity to - 4 - choose the course of their choice as per their merit in the entrance test. It is also stipulated that the successful in service candidates will be allocated by following the 40 point reservation roster. (Communal rotation for in service candidates) 4. The question is whether the in service candidates are entitled to have the benefit of merit within their class in respect of 70% of the seats allotted to them. 5. According to the learned counsel for the petitioners, unless the in service candidates are protected in respect of their 70% seats, as per the inter-se merit among the 70%, they will not be in a position to get the creamy disciplines. Learned Advocate General, on the other hand, contends that the State on policy stands for merit. Since a common entrance test is conducted for all the candidates, the selection should also be based on merit among all the candidates without any difference as to whether one is a direct candidate or in service candidate. We are afraid that the vehement contention, advanced by the learned Advocate General cannot be appreciated since the same may not serve the purpose for which the State has allocated 70% of the Post Graduate seats to the in service candidates. We do not think that we should deal with the issue in extenso since the same is no more res-intgra in view of the three decisions of the Apex Court. K.Duraisamy & Another - 5 - Versus State of T.N. & Others (2001) 2 SCC 538, AIIMS Students’ Union versus AIIMS & Others (2002) 1 SCC 428 and State of M.P. & Others versus Gopal D.Tirthani & Others (2003) 7 SCC 83). 6. In K.Duraisamy’s case, the Supreme Court considered the question of validity of 50% seats allotted to in service candidates and also the validity of such allocation being made specialty-wise. To quote the factual position which appears in Para-3 of the Judgment:- “The Government order envisages reservation confining up to 50% in favour of in-service candidates on merit basis and further stipulated that 50% of the seats available in each of the specialty, shall be allotted exclusively to the service candidates.” (Emphasis supplied) It has been held therein that the allocation of the quota was fully in order serving the purpose of allocation. Paragraphs-10 and 12 of the judgment to the extent relevant read as follows:- “... .... We are also of the view that it does not lie in the mouth of the writ petitioners to raise a bogey of selection based on merit alone, only in respect of a portion of the seats available for admission to non-service candidates, when they belong to and are part of a category or - 6 - class who have got in their favour fifty percent of the number of seats in each of the disciplines allocated to their category of "in- service" candidates to be filled up exclusively from such "in-service" candidates on the basis of their own inter se merit and not on the overall merit performance of all the candidates both in-service and non-service put together. The writ petitioners are found to have applied as in-service candidates and merely because they could not be selected within the number of seats earmarked for their category or class on the basis of the inter se merits among their own class, they cannot be allowed to contend to the contrary in retrospect and on hind sight experience of having obtained more marks, than those who got selected as against the seats earmarked and allocated to non-service candidates. The justification, both in law and on facts for exclusive allocation and stipulation of a definite quota or number of seats for non- service or private candidates, in our view, lies in the very principle which warranted or enabled the fixation of a quota of fifty percent of seats and exclusively allotted to in-service candidates. Any countenance of such claims of the appellants is likely to also endanger the very allocation of 50% of the seats exclusively to the category of in-service candidates too. 12. .... ....Fixation of a quota in a given case cannot be said to be the same as a mere reservation and whenever a quota is fixed or provided for one or more of the classified group or category, the candidates falling in or answering the description of different classified groups in whose favour a respective quota is fixed have to confine their respective claims - 7 - against the quota fixed for each of such category, with no one in one category having any right to stake a claim against the quota earmarked for the other class or category. ... ....” 7. Learned Advocate General submits that K.Duraisamy’s case was distinguished by the Supreme Court in a subsequent decision in the AIIMS Students’ Union case (supra). It was a case of admission to Post Graduate Course of All India Medical Science where 33% of the Post Graduate seats were reserved for those students who graduated from the Institute along with 65% percentile method. It was held that such reservation does not serve the purpose for which a special allocation is made. At Para-15 of the judgment, it was held as follows: “... ....We have no hesitation in holding, and thereby agreeing with the Division Bench of High Court, that reserving 33% seats for institutional candidates was in effect 100% reservation for subjects. Coupled with 50% reservation in allocation of specialities not exceeding overall 33% reservation integrated with 65 percentile - a complex method, the actual working where of even the learned senior counsel for the parties frankly confessed their inability in demonstrating before us at the time of hearing - is a conceited gimmick and accentuated politics of pampering students, weak in merit but mighty in strength. Such a reservation based on institutional continuity in the absence of any relevant evidence in - 8 - justification thereof is unconstitutional and violative of Article 14 of the Constitution and has therefore to be struck down. The impugned reservation, obnoxious to merit, fails to satisfy the twin test under Article 14. Having taken a common entrance test, there is no intelligible differentia which distinguishes the institutional candidates from others; and there is no nexus sought to be achieved with the objects of AIIMS by such reservation. Can the Court sustain and uphold such reservation? 'Justice is the earnest and constant will to render every man his due. The precepts of the law are these: to live honorably, to injure no other man, to render to every man his due' - said Justinian. Giving a man his due, one of the basics of justice, finds reflected in right to equality. Mediocracy over meritocracy cuts at the roots of justice and hurts right to equality. Protective push or prop, by way of reservation or classification must withstand the test of Article 14. Any over-generous approach to a section of the beneficiaries if it has the effect of destroying another's right to education, more so, by pushing a mediocre over a meritorious belies the hope of our Founding Fathers on which they structured the great document of Constitution and so must fall to the ground. To deprive a man of merit of his due, even marginally, no rule shall sustain except by the aid of Constitution; one such situation being when deprivation itself achieves equality subject to satisfying tests of reason, reasonability and rational nexus with the object underlying deprivation.” 8. Learned Advocate General points out, by placing reliance on Paragraph-34 of the judgment, that - 9 - the merit cannot be sacrificed and to that extent K.Duraisamy’s case has been distinguished by the Supreme Court. Para-34 reads as follows:- “In our opinion, reliance by the learned counsel for the appellant on the decision in K. Duraisamy's case (supra) is entirely misconceived inasmuch as the questions which are arising for decision in the case before us are different and attract applicability of different considerations. Institute's in-house candidates do not bear any similarity with in- service candidates considered in K. Duraisamy's case so as to claim analogy with them and have the benefit of the ratio of K. Duraisamy's case. Secondly, the question whether merit can be sacrificed to such an extent as to be bidden almost a good-bye' resulting into candidates too low in merit being preferred to candidates too high in merit and the margin of difference between the two being too wide, did not arise for consideration before this Court in K. Duraisamy's case. We are dealing with a case where the division of seats between two classes coupled with two level reservation and unique percentile method has been so carved out, as if tailor-made, as is resulting into a reservation which ensures allotment to the extent of 100% of PG seats followed by guaranteed placement in the choicest of creamy disciplines to the candidates belonging to one category (i.e. Institute's in-house candidates) without regard to their competitive merit. This is not a reservation but a super-reservation and certainly not a source of entry. The first submission of the learned counsel for the appellants therefore fails. - 10 - 9. It is also pointed out by the learned Advocate General that 70% of seats for in service candidates is not reservation. It is only source of entry and in that source of entry, in-service candidates cannot have a special preference even in respect of 70% of the allotted seats. 10. It has to be seen that the Supreme Court has clearly distinguished reservation, as sought to be made in AIIMS’s case and special quota earmarked for the in- service candidates in K.Duraisamy’s case. That discussion we get at Para-31 of the judgment, relevant portion of which reads as follows: “... ... K. Duraisamy's case was one where limited seats available for post-graduation were equally divided between in-service candidates, i.e., doctors already in the employment (of Government and Semi- Government bodies) and open category candidates which included all candidates, other than those falling within the definition of inservice candidates. This Court held that the State Government had undoubted power, as a matter of policy, insofar as the admissions to super-speciality and P. G. Diploma/Degree/M. D. S. courses are concerned to devise scheme or pattern of two sources of entry based upon a broad classification into two categories, i.e. in- service candidates and non-service or private candidates with each one of them allocated exclusively for their own category of candidates 50% of the seats; the ultimate selection for admission depending upon the - 11 - inter se merit performance amongst their own category of candidates. A candidate belonging to one category could not move across to the other category and seek entry there from. The PG seats available for candidates in each of the two categories were limited and the aspirants in each category were much more than the number of seats allocated to each source of entry. There was competition amongst the candidates belonging to each category. It is not as if all the candidates belonging to any of the two categories were completely assured of availability of seats so as to take away the element of competition and chances of failure for anyone in its entirety. Such scheme envisaged not reservation but classification of the sources from which admissions have to be accorded. This Court also opined that the meaning, content and purport of the expression 'reservation' will necessarily depend upon purpose and object with which it is used. It is to be noted that in K. Duraisamy's case in-service candidates did not belong to any weaker section of the society nor were one who deserved or needed to be protected. The candidates in both the categories were medical graduates. Some of them had done graduation sometime in the past and were either picked up in the Government service or had sought for joining Government service because, may be, they could not get a seat in post graduation and thereby continue their studies because of shortage of seats in higher level of studies. On account of their having remained occupied with their service obligations they became detached or - 12 - distanced from theoretical studies and therefore could not have done so well as to effectively compete with fresh medical graduates at the P. G. Entrance Examination. Permitting in-service candidates to do post- graduation by opening a separate channel for admittance would enable their continuance in Government service after postgraduation which would enrich health services of the nation. Candidates in open category having qualified in post graduation may not necessarily feel attracted to public services. Providing two sources of entry at the post- graduate level in certain proportion between in-service candidates and otherwise candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. The object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to provide protection and encouragement to one at the entry level.” 11. The Apex Court has also taken note of the fact that special preference is to be given to the in-service candidates even for the creamy disciplines, taking note of their disadvantageous situation of doing service and then preparing for the entrance examination, vis-à-vis the direct candidates only preparing for the examination and doing no service. 12. In fact, the very same issue came up for consideration before the Apex Court in the third decision in Gopal D.Tirthani’s case, decided in the year 2003. - 13 - Duraisamy’s case has been understood and explained in the said decision holding as follows:- “19 (iii) that such exclusive allocation and stipulation of a definite quota or number of seats between in-service and non-service or private candidates provided two separate channels of entry and a candidate belonging to one exclusive quota cannot claim to steal a march into another exclusive quota by advancing a claim based on merit. Inter se merit of the candidates in each quota shall be determined based on the merit performance of the candidates belonging to that quota.” 13. The Apex Court in the said decision also referred to the deliberations in Duraisamy’s case in Para-31, which is extracted above, and finally held at Para-21 it has been held as follows:- “There is nothing wrong in the State Government setting apart a definite percentage of educational seats at post graduation level consisting of degree and diploma courses exclusively for the in-service candidates. To the extent of the seats so set apart, there is a separate and exclusive source of entry or channel for admission. It is not reservation. In-service candidates, and the candidates not in the service of the State Government, are two classes based on an intelligible differentia. There is a laudable purpose sought to be achieved. In-service candidates, on attaining higher academic achievements, would be available to be posted in rural areas by the State Government. It is not an in-service candidate - 14 - would leave the service merely on account of having secured a post graduate decree or diploma though secured by virtue of being in the service of the State Government. If there is any misapprehension the same is allayed by the State Government obtaining a bond from such candidates as a condition precedent to their taking admission that after completion Degree/Diploma course they would serve the State Government for another five years. Additionally a bank guarantee of rupees three lakhs is required to be submitted alongwith the bond. There is, thus, clearly a perceptible reasonable nexus between the classification and the object sought to be achieved.” 14. The Apex Court also held that minimum merit should ensured before calling for counseling, even as far as in-service candidates are concerned. 15. In the State of Himachal Pradesh also, in the common entrance test conducted, only those candidates, who obtain 50% of the marks (40% for Scheduled Caste and Scheduled Tribe) alone, are called for counselling. Therefore, there is no question of any mediocracy in the place of meritocracy, as contended by the learned Advocate General. It is, thus, clear that the Supreme Court has not deviated from the principle, as settled in Duraisamy’s case. The same was only explained in the AIIMS’s case when the said institute made an experiment for institutional reservation of the candidates, who secured the degree from very same college. That is not - 15 - the factual matrix as far as the situation in the Himachal Pradesh is concerned. The State here intends to give more incentives to those who serve in the remote, tribal and rural areas in the State. If that be so, those doctors serving in the State should also be in a position to get themselves equipped in creamy disciplines as well, lest in the long run, it should lead to a situation where the direct candidates, who wholly utilize their time for entrance examination will score high in the test and they will opt for the creamy disciplines and what is left, will only be non creamy disciplines for the government doctors. That will be against the larger interests of the State. It is also seen that generally the category-wise method is followed in other parts of the country. Therefore, if the State really wants to protect and promote the interest of the in-service candidates, it should have its logical effect by providing for a category/specialty-wise allocation of seats, as has been done hitherto in the State of Himachal Pradesh. The direct candidates and the in service candidates do form separate classes. Such classification, in the factual background, is required, and if not done, it would be discriminatory. 16. Learned Advocate General as well as learned counsel for the University submit that the first round counseling has already been completed and the seats have already been allocated. But the counseling was - 16 - done only on the basis of merit in the test and not on category basis. However, it is pointed out that if a re- arrangement is to be made, affected parties are not before this court and without hearing them, it may not be proper for this court to issue further directions. We are afraid, this contention cannot be appreciated since we have made it clear in the order, dated 19th April, 2010 that the counseling, as scheduled by the University, would be subject to the result of the writ petition and that it should be so made clear in the allocation orders as well. Therefore, the candidates are well aware of the pendency of the dispute before this court. 17. In the above circumstances, we issue an interim direction to the respondents to conduct counseling for admission to the Post Graduate Courses afresh in respect of the colleges in Himachal Pradesh in the following manner, as has been done hitherto:- First seat to HPS; Second seat to direct candidate; Third seat to HPHS; Fourth seat to HPHS; Fifth seat to direct candidate; and Sixth seat to HPHS. 18. It is also made clear that the same should be done from the point it was stopped last year. - 17 - 19. Learned counsel for the University submits that insofar as the allocation of seats to SC/ST is concerned, the principle laid down in CWP No. 467 of 2009, Amarjeet Singh Chadha Vs. State of H.P. and others, decided on 2.4.2009 would be followed. The submission is taken on record. 20. The counselling, as above, will be completed before the second round of counseling. Post on 25th May, 2010.” 2. The said interim order is made absolute. The writ petitions are disposed of in terms of the above order so also the pending application(s) if any. (Kurian Joseph) Chief Justice May 25,2010. (Surinder Singh) (cm/ Pds) Judge.