LPA 611/2010 Page 1 of 16 * HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 20th September, 2010 % Judgment Pronounced on: 29th November, 2010 + LPA 611/2010 & CM No.15295/2010 TEJ PAL YADAV ..... Appellant Through: Mr. R.K. Saini with Mr. Sitab Ali Chaudhary and Mr. Vikas Saini, Advs. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. A.S. Chandhiok, ASG with Mr. Atul Nanda, CGSC, with Ms.Sugandha, Adv. for R-1 Mr. Atul Kumar, Adv. for R-4. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ In this intra-Court appeal preferred under Clause 10 of the Letters Patent, the sustainability of the order dated 13th August, 2010 passed by the learned Single Judge in W.P.(C) No.5492/2010 is called in question. 2. The facts which are essential to be stated for adjudication of this appeal are that the appellant had appeared for the All India Pre-Medical / Pre-Dental Entrance Examination held by the Central Board of Secondary Education, the respondent No.4 herein, for admission to the 15% All India LPA 611/2010 Page 2 of 16 seats quota in the Medical Colleges all over the country. As per the stipulations in the prospectus, the appellant appeared in the Preliminary Examination as an OBC candidate and secured 49.2% marks in the said examination as a result of which he qualified to appear in the final examination. He appeared in the final examination and secured 72.3% marks and was placed at serial No.3017 in the All India Rank and Counselling Category Rank of 2965 (OBC – 1179). As per the Rank letter dated 23.5.2010 in the column “Result‟, it was mentioned that the appellant was “Qualified in Wait List – Eligible for (OBC) seats only”. As put forth, the Appellant appeared for counselling on 10.8.2010 as per his Counseling Category Rank of 2965. Though seats in the General Category were said to be available on that day, yet the seats reserved for the OBC Category were filled up as a consequence of which the appellant was not considered for admission. It was contended before the writ court that as the appellant had secured 72.3% marks in the Final Examination, he was entitled to be considered in the General Category and not in the OBC category alone. Before the learned Single Judge, the mode of implementation of OBC and Physical Handicapped Reservation in 15% All India Quota (MBBS / BDS) seats were pressed into service. Relying on the same, it was contended that the appellant was entitled to be considered in the reserved category. 3. The stand and stance put forth by the appellant was resisted by the respondent No.2, the Directorate General of Health Services, contending, inter alia, that the appellant had qualified in the Preliminary Examination as an OBC candidate but not as a candidate belonging to the unreserved LPA 611/2010 Page 3 of 16 category inasmuch as a candidate belonging to General Category was required to obtain / secure 50% marks to undertake the main examination but the appellant was declared qualified under the OBC quota as he had secured more than 40% marks which is the requisite marks to be secured by a candidate belonging to the OBC Category and, therefore, his claim can only be considered in respect of seats meant for the OBC category. 4. The learned Single Judge, after taking note of the stand and stance put forth by the parties, came to hold that the qualification in the preliminary examination cannot be lost sight of while determining whether a candidate was qualified in the OBC quota or in the unreserved quota and, in fact, the very presence of the writ petitioner in the final examination was attributable to the lowering of the standard of eligibility meant for the OBC candidates. It is also worth noting that the learned Single Judge has also referred to the prospectus which has been placed on the website of the Directorate General of Health Services pertaining to reservation. 5. We have heard Mr.R.K. Saini, learned counsel for the appellant, and Mr. A.S. Chandhiok, learned Additional Solicitor General along with Ms. Sugandha, learned counsel for the respondent No.1, and Mr. Atul Kumar, learned counsel for the respondent No.4. 6. At the very outset, it is condign to state that there is no dispute with regard to the facts. The thrust of the matter is whether the appellant who had appeared in the preliminary examination as an OBC candidate after qualifying in the main examination and placed at the rank of 2965 in the LPA 611/2010 Page 4 of 16 General Category and 1179 in the OBC Category could have claimed to be considered in the General Category, i.e., Unreserved Category and not in the OBC Category. To appreciate the controversy, it is seemly to reproduce the column on „reservation‟ which finds place in the prospectus: “OBC candidates have Rank in the Unreserved category and as well as in OBC category. Therefore, they have the right to claim over UR or OBC seats at any of the said ranks as per their choice. However, if OBC seats remain unfilled after exhausting the UR merit list, these seats will be filled by the concerned State Quota candidates as per their existing rules and regulations. As per the present practice, the counselling/allotment of UR, SC and ST seats under All India Quota is being done as per the 2200 Point Reservation Roster. MBBS/BDS seats in whichever Medical/Dental college are available at their rank at that time, will be allotted to the candidate of any category as per Reservation Roster and as per their choice. Therefore, entire seats are open to all the categories i.e. for UR, SC & ST. This procedure will not be followed for OBC candidates as the OBC reservation is not the exactly 27% of the total number of the seats and as the OBC reservation is only in some participating Central Institute under All India Quota and these seats are reserved for OBC candidates only. Therefore, the Directorate General of Health Services has formulated the following procedure for implementation of OBC reservation in Central Medical Institution under 15% All India Quota:- The allotment will be done as per the “2200 Point Reservation Roster” which is already followed in the 15% All India Quota since the year 2007-08. The candidates will be called as per the Reservation Roster and the seat (which is not reserved for OBC in the OBC list) will be allotted to the candidates whatever the seats in whichever Medical/Dental Colleges are available at their rank at that time. As and when a candidate comes at his/her Unreserved Rank and having the OBC Rank also, he/she can choose/opt either the seat which is not reserved for OBC or the seats exclusively reserved for OBC. If he/she opts the seat of unreserved category he/she will not be counted in the reserve category. This LPA 611/2010 Page 5 of 16 type of candidate will be counted in the category in which he/she gets the seat allotted. If an OBC candidate qualified under OBC Quota only will have claim over the seat which is reserved for OBC only. In the event of exhausting of OBC seats under All India Quota no OBC candidates can claim OBC seats. The seat if not filled for want candidate, they can be treated as with UR as in the case of SC/ST.” [Emphasis added] 7. Relying on the said prospectus, it is contended by the learned counsel for the respondents that a candidate who gets qualified in the OBC quota can only claim for a seat which is reserved for the said category and not for the Unreserved seat. Be it noted, the learned counsel for the respondents have relied on the third paragraph and for a better appreciation, we have laid emphasis on the same. On a studied scrutiny of the said paragraph, we have no shadow or trace of doubt that it is applicable at the stage of counselling. Holding of a preliminary examination and the main examination precedes the stage of counselling. The said paragraph conveys that if a candidate opts for the unreserved category, he / she would not be counted in the reserved category. It is further clear that the said candidate would be counted in the category in which he / she gets the seat allotted. Reading in a purposive manner, there can be no iota of doubt that the claim relating to seats arises only at the stage of counselling so that a candidate cannot take chances as by the stage of allotment of seats the admission in colleges have to be finished by specified date. It has a sacrosanct purpose. It avoids any kind of chaos. 8. In this context, we may refer with profit to the decision in Ritesh R. Sah v. Dr. Y.L. Yamul & Ors., (1996) 3 SCC 253. In the said case, the LPA 611/2010 Page 6 of 16 question that emerged for consideration before the Apex Court was whether a candidate who belonged to the Scheduled Caste or any other reserved category could be counted against the quota meant for the reserved category even if he was entitled for selection for admission in open competition on the basis of his own merit or would he be treated as an open competition candidate. Their Lordships in paragraph 13 of the said decision expressed the view as under: “13. There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16(4).” 9. Their Lordships referred to Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 wherein it has been held thus: “In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” 10. Reliance was also placed on R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 wherein the Constitution Bench was considering the question of appointment and promotion and roster points vis-à-vis reservation and had opined thus: “When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the LPA 611/2010 Page 7 of 16 reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats.” [Emphasis added] 11. The two-Judge Bench, in the said decision, referred to the pronouncement in Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401 and came to hold thus: “In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the LPA 611/2010 Page 8 of 16 candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.” [Underlining is ours] 12. At this juncture, we may refer with profit to the Full Bench decision of the Andhra Pradesh High Court in Dr. B. Kaladhar & Ors. v. Government of A.P., Health, Medical and Family Welfare Department & Ors., 2005 (6) ALT 723 wherein, after discussing various judgments of the Apex Court, the Full Bench has expressed the view as follows: “If we examine the judgments of the Supreme Court rendered in the cases of Ritesh R. Sah, Neethi Chandra and Anurag Patel‟s, referred to above, it emerges that the Supreme Court laid down a principle to the effect that the merit obtained by a candidate belonging to a reserved category, cannot be treated, or permitted to become, a factor, to deprive or minimize the options to him, when compared to a candidate belonging to the same category, and accommodated in the reserved seats or posts. This principle, in turn, came to be applied in different manners, in different cases, depending on the procedure adopted for selection of candidates. It is the principle, that becomes a guiding factor, than the application part of it. The principle – the ratio decidendi, as we understand is that a higher ranked/merited candidate belonging to a reserved category, should not suffer a deprivation in the choices of either a seat or an institution of his choice vis- à-vis a lesser ranked/merited candidate of the same social class, by the operation of a reservation principle. Any LPA 611/2010 Page 9 of 16 admissions programme that accords with such principle is valid.” 13. At this stage, it is immensely instructive to refer to paragraph 811 of Indra Sawhney (supra) which reads as follows: “811. In this connection it is well to remember that the reservation under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” 14. In the said case, Sawant, J., while dealing with the philosophy and objectives of reservation has opined thus: “411. The aim of any civilized society should be to secure dignity to every individual. There cannot be dignity without equality of status and opportunity. The absence of equal opportunities in any walk of social life is a denial of equal status and equal participation in the affairs of the society and, therefore, of its equal membership. The dignity of the individual is denied in direct proportion to his deprivation of the equal access to social means. The democratic foundations are missing when equal opportunity to grow, govern, and give one‟s best to the society is denied to a sizeable section of the society. The deprivation of the opportunities may be direct or indirect as when the wherewithals to avail of them are denied. Nevertheless, the consequences are as potent. 412. Inequality ill-favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the Preamble of the Constitution, of fraternity assuring the dignity of the individual and the unity and integrity of the nation must, therefore, remain unattainable so long as the equality of opportunity is not ensured to all. xxxx xxxx xxxx xxxx 416. The trinity of the goals of the Constitution, viz., socialism, secularism and democracy cannot be realised unless all sections of the society participate in the State LPA 611/2010 Page 10 of 16 power equally, irrespective of their caste, community, race, religion and sex and all discriminations in the sharing of the State power made on those grounds are eliminated by positive measures.” 15. In Dr. Preeti Shrivastava v. State of Madhya Pradesh, AIR 1999 SC 2894, the Constitution Bench, after referring to a passage from Marc Halanter, has expressed thus: “Since every such policy makes a departure from the equality norm, though in a permissible manner, for the benefit of the backward, it has to be designed and worked in a manner conducive to the ultimate building up of an egalitarian non-discriminating society. That is its final constitutional justification. Therefore, programmes and policies of compensatory discrimination under Art.15(4) have to be designed and pursued to achieve this ultimate national interest. At the same time, the programmes and policies cannot be unreasonable or arbitrary, nor can they be executed in a manner which undermines other vital public interests or the general good of all. All public policies, therefore, in this area have to be tested on the anvil of reasonableness and ultimate public good. In the case of Art.16(4) the Constitution makers explicitly spelt out in Art.335 one such public good which cannot be sacrificed, namely, the necessity of maintaining efficiency in administration. Article 15(4) also must be used, and policies under it framed, in a reasonable manner consistently with the ultimate public interests.” 16. In Student’s Union v. AIIMS, (2002) 1 SCC 428, the Apex Court has held that merit must be the test when choosing the best. 17. In Avinash Singh Bagri & Ors. v. Registrar IIT Delhi & Anr., (2009) 8 SCC 220, the Apex Court was dealing with the situation under Article 32 of the Constitution of India and the grievance of the students belonging to Scheduled Caste and Scheduled Tribe who had been given admission in IIT, Delhi but were denied the right to pursue their studies by the educational institutions on the ground of poor performance and their cancellation of LPA 611/2010 Page 11 of 16 admission and expulsion from college after one year or two years. In that context, their Lordships referred to the decision in Ashok Kumar Thakur v. Union of India & Ors, (2008) 6 SCC 1 and opined that Article 46 of the Constitution of India enjoins upon the State to promote with special care the educational and economic interest of the weaker sections of the people and protect them from social injustice and all forms of exploitation. Their Lordships have ruled that these socially and economically backward categories are to be taken care of at every stage even in the specialized institutions. 18. We have referred to the aforesaid decisions only to highlight that the purpose of reservation is a generic concept and has different connotations under various circumstances. The Constitution of India, the fountainhead of all law, requires one to understand and appreciate the schematic interpretation of the organic law of the country to understand the said concept. Reservation of the present nature has an affirmative objective. In our view, the interpretation placed by the learned Single Judge would defeat the very intent and objective behind the reservation policy. 19. Coming to the case at hand, a student may appear in the preliminary examination declaring that he belongs to OBC category and may qualify or may not qualify. If he does not qualify, that is the end of the road. If he qualifies, he appears in the main examination. If he does not qualify in the said examination, his right to get admission becomes totally extinct. If he qualifies within the OBC category, he may put forth his claim in that LPA 611/2010 Page 12 of 16 category but if he gets more marks than the general candidates, he would be justified to say that he can be considered in the general category. As has been held in the case of Dr. Preeti Shrivastava (supra), the public interest cannot be undermined and public good cannot be sacrificed. The necessity of maintaining efficiency is also paramount. If the whole concept of reservation is understood in a holistic manner, it becomes amply clear that a candidate‟s appearing in the OBC category in the preliminary examination is basically at the entry level. We are inclined to think that though both the preliminary and main examinations, at a first glance, may look to be totally interconnected, yet on a deeper scrutiny, one is disposed to think that despite being apparent interconnectivity there is a subtle distinctive separation. This being the position, we are of the considered opinion that if an OBC candidate appears in the preliminary examination as an OBC category candidate and performs extremely well in the main examination, his claims should not be scuttled or smothered solely on the ground that he had taken the initial examination as an OBC category candidate. In case it is allowed to be so done, a general category candidate who really could not compete with the OBC candidate in the main examination would steal a march over him. That would not be in the public interest and also not in accord with the law laid down in the cases of Indra Sawhney (supra), Ritesh R. Sah (supra), R.K. Sabharwal (supra) and Dr. Preeti Shrivastava (supra). Further, if we allow ourselves to say so, the constitutional philosophy as well as the law laid down by the Apex Court from time to time in relation to the conceptual essentiality of reservation in medical admission, a test of trinity, namely, due LPA 611/2010 Page 13 of 16 regard for merit when a reserved category candidate is able to compete with a general category candidate, interest of public efficiency and public good in certain courses, and bestowing of special care to the said category so that they would come up in educational sphere are to be kept in view. Therefore, we conclude and hold that the analysis made by the learned Single Judge in this regard is not defensible. 20. Presently we shall proceed to delve into the issue as to what relief can be granted to the appellant. The submission of Mr. Saini, learned counsel for the appellant, is that when injustice is caused to a person, he should not be declined or denied relief solely on the ground that the admissions are over. It is urged by him that he has to be adjusted in respect of a seat meant for the general category. We are disposed to think that there is substantial force in the