IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH Date of Decision: 24.06.2011 (1) LPA No.1050 of 2011 Dr. Brijender and others …Appellants Versus Dr. Manisha Modi and others …Respondents (2) LPA No.1063 of 2011 Dr. Shalley Dahiya …Appellant Versus Dr. Manisha Modi and others …Respondents (3) LPA No.1067 of 2011 Dr. Satvinder Singh Choudhary …Appellant Versus Dr. Manisha Modi and others …Respondents (4) LPA No.1076 of 2011 Dr. Pooja Gahlot and others …Appellants Versus State of Haryana and others …Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MS. JUSTICE RITU BAHRI Present: M/s Saurabh Dalal, Pravindra Singh Chauhan & Anil Malik, Advocates, for the appellant(s). Mr. Harish Rathee, Sr. DAG, Haryana, for the State. Mr. Ramesh Hooda, Advocate, for University Mr. V.K.Jindal, Advocate, for respondents-writ petitioners. LPA No.1050 of 2011 (5) LPA No.1064 of 2011 Dr. Brijender and others …Appellants Versus Dr. Rajeev Dabla and others …Respondents (6) LPA No.1066 of 2011 Dr. Satvinder Singh Choudhary …Appellant Versus Dr. Rajeev Dabla and others …Respondents (7) LPA No.1075 of 2011 Dr. Pooja Gahlot and others …Appellants Versus Pt. B.D.Sharma, University of Health Sciences, Rohtak …Respondents and others CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MS. JUSTICE RITU BAHRI Present: M/s A.S.Virk & Pravindra Singh Chauhan, Advocate, for the appellant. Mr. Harish Rathee, Sr. DAG, Haryana, for the State. Mr. Ramesh Hooda, Advocate, for University. Mr. Vikas Chatrath, Advocate, for respondents- writ petitioners HEMANT GUPTA, J. This order shall dispose of LPA Nos.1050 of 2011, 1063 of 2011, 1067 of 2011 and 1076 of 2011 arising out of CWP No.8548 of 2011 and LPA Nos.1064 of 2011, 1066 of 2011 and 1075 of 2011 arising out of CWP No.8575 of 2011 against a common judgment dated 24.05.2011 passed by the learned Single Judge of this Court, allowing the aforesaid writ petitions. 2 LPA No.1050 of 2011 The appellants and the private respondents are the members of Haryana Civil Medical Services (HCMS) and are aspirants for admission to Post-Graduate Degree Courses conducted by Pt. B.D. Sharma University of Health Sciences, Rohtak (for short here-in-after called “University”). The writ petitioners are the members of the HCMS, who have graduated from an institutions situated in the State of Haryana, whereas the appellants in these appeals are the members of the HCMS, who have graduated from the institutions located in the areas other than State of Haryana. The writ petitioners are claiming benefit of 10 marks, by an institutional preference, before determining merit for the purposes of admission for the Post-Graduate Courses, whereas the stand of the University and that of the appellants herein that such marks for institutional preference are to be given to the candidates, who are competing for the open category seats and that such marks are not available to the members of the HCMS Cadre seeking admission against reserved seats meant for them. CWP Nos.8548 of 2011 and 8575 of 2011, filed by the members of HCMS, i.e. graduates from the institutions situated in State of Haryana, have been allowed by the learned Single Judge holding that the writ petitioners cannot be denied the benefit of criteria, which has been specifically given out in the prospectus, which laid down that 10 marks are to be given to those who have acquired the degree of MBBS/BDS from Haryana. It was held that if the intention of the respondents was to the contrary, then it should have found an expression in the prospectus, as it did in the previous years. In the present appeals, learned counsel for the appellants have, inter alia, argued that marks for institutional preference cannot be given to the members of the HCMS, who forms a class in itself. It is pointed out that 3 LPA No.1050 of 2011 out of 145 seats for MD/MS (three years degree course), 29 seats are reserved for HCMS candidates; and out of 29 seats for PG diploma (2 years course), 7 seats are reserved for HCMS candidates; whereas out of 12 seats for MDS, 6 seats are reserved for HCMS candidates. It is, thus, sought to be contend that once reservation is meant for a particular service, then there cannot be any institutional preference to the members of the Cadre, as all members of the Cadre have to be treated at par. Mr. Ramesh Hooda, learned counsel for the University, on the other hand, argued that the marks for institutional preference were meant for open category candidates alone and the words “only for open category” is on account of printers devil, an accidental mistake, thus, the writ petitioners cannot claim benefit of such marks. To support the fact that it is a mistake, learned counsel for the University relies upon a condition i.e. Note – 2 in the prospectus appearing at Page 3, which provides that the application form should be accompanied with the Optical Mark Recognition (OMR) application form attached with it duly filled in according to the instructions supplied, failing which the application form will be rejected. It is contended that the instructions for filing the OMR application form, provided that the marks for institutional preference is meant only for open seats. In addition to the said argument, Mr. Hooda has filed an affidavit dated 23.06.2011 of the Registrar of the University to the effect that the words ‘only for open category’ are left out due to accidental omission. In the said affidavit, it was said to the following effect: “3. That in the Prospectus at page 16 in Para No.6 under heading ‘Determination of merit’ the word ‘only for open category’ was to be added because the weightage of 5 and 10 marks is applicable only to the Open Category candidates and not to the candidates belongs to HCMS category. But the said work i.e. ‘only for open category’ which was included in the prospectus issued for the last several years is left out due 4 LPA No.1050 of 2011 to accidental omission and it was not an intentional modification in the prospectus published for current session.” The appellants rely upon the column-wise instructions for filling the OMR application form, which contemplated the weightage for the purposes of MD/MS/PG diploma & MDS courses. The appellants have also relied upon a judgment of Hon’ble Supreme Court reported as Saurabh Chaudri and others Vs. Union of India and others 2003 (11) SCC 146, to contend that the reservation by way of institutional preference is though permissible in certain circumstances, but the marks for the institutional preference cannot be granted. Learned counsel for the appellants have also argued that all the effected parties were not impleaded in the writ petition, therefore, such writ petition could not have been entertained. The stand of the University in the short affidavit filed in the writ petition was that the grant of weightage of 10 or 5 marks is meant only for candidates belonging to open category because the category of HCMS candidate is a reserved category, which cannot be bifurcated further in sub categories. Learned counsel further states that there is no conscious decision taken or even proposal mooted to grant marks for institutional preference to the in-service candidates. The candidates of HCMS cadre form one category from the date they join as Haryana Government Officers and cannot be differentiated with each other. As mentioned above, the University has filed an affidavit in the present appeal to the effect that the words “only for open category” have been left out due to accidental omission. On the other hand, Mr. V.K.Jindal and Vikas Chatrath, learned counsel representing the writ petitioners, have argued that the conditions printed and made public in the prospectus have the force of law and the 5 LPA No.1050 of 2011 admission process cannot be carried out contrary to such conditions. It is pointed out all the candidates were not supplied with the instructions for filling the OMR application forms, as such forms were in short supply, therefore, the conditions and instructions in the said OMR applications or instructions cannot be made applicable to them. It is also contended that the grant of institutional preference marks is legal and valid, as has been upheld in Sanjay Ahlawat Vs. Maharishi Dayanand University, Rohtak (1995) 2 SCC 762 and State of M.P. and others Vs. Gopal d. Tirthani and others (2003) 3 SCC 83. Learned counsel for the respondents also argued that in Saurabh Chaudri’s case (supra) relied upon by the appellants, the Court has approved the criteria for institutional preference in Para 64. It is argued that any instruction or direction to modify or change any condition could be issued by the University prior to the first counselling or that objection about the condition of eligibility could be made a week before the date of holding of the written test, therefore, at this stage, it cannot be said that there was printing mistake. It is also pointed out that CWP No.1303 of 2004 is pending before this Court, wherein the petitioner has challenged the grant of marks for institutional preference to the open category candidates only. After hearing learned counsel for the parties, we find that following two questions arise for consideration: (i) Whether the words “only for open category” is an accidental omission and, thus, benefit of institutional preference cannot be granted to the members of HCMS? (ii) Even if the expression “only for open category” is not on account of accidental omission, whether 10 marks for institutional preference to the members of HCMS is legally sustainable? 6 LPA No.1050 of 2011 Before considering the aforesaid questions, certain conditions and instructions mentioned in the prospectus need to be extracted. The same are as under: “Note:- xxx xxx 2. The application form should be accompanied with the OMR application form attached with it duly filled in according to the instruction supplied, failing which the application form will be rejected.” “METHOD OF SELECTION AND ADMISSION xxx xxx xxx” 6. Determination of Merit i) Written examination (two papers) 90 Marks (45 marks each paper) ii) (a) Weightage for graduates of recognized 10 Marks Medical/Dental Colleges of Haryana. (b) Weightage for Haryana Domicile candidates 05 Marks who have passed their qualifying examination to MBBS/BDS courses i.e. 10+2 but have passed their MBBS/BDS from recognized Medical colleges/Dental Colleges outside Haryana State. Note- Weightage will be given only to those candidates who qualify the Entrance Examination by securing at least 50% marks, i.e. candidate securing less that 50% marks in entrance examination will not be entitled for any kind of weightage. iii) The conditions for NOC’s fixed by the Govt. of Haryana vide letter No.2/123/05/I-HB-I dated 5.12.2008 for HCMS doctors who want to join PG-courses are given at Annexure-D. (However, latest Govt. instructions issued from time to time will be followed).” “INSTRUCTIONS FOR FILLING THE OMR APPLICATION FORM IMPORTANT NOTE THE OMR APPLICATION FORM IS COMMON FOR VARIOUS ENTRANCE EXAMINATIONS. ONLY THOSE COLUMNS SHOULD BE FILLED UP, WHICH ARE RELEVANT AS PER PROSPECTUS 1. In addition to the application from attached in the Prospectus, the candidates are required to fill up the OMR (Computerized) Application Form also. This OMR application form may be placed in the envelope supplied for the purpose. 7 LPA No.1050 of 2011 The another application form (available in the prospectus) along with requisite documents may also be placed in the same envelope as a separate set. xxx xxx xxx COLUMN-WISE INSTRUCTIONS FOR FILLING THE OMR APPLICATION FORM: xxx xxx xxx SNo.5 Name of Course applied for: Darken the relevant circle indicating the name of course applied for. SNo.5a. Seat Quota: Write the category under which applying in the box and darken the appropriate circle. (Only for MD/MS/M.Ch./PG Dip. & M.D.S. Courses) SNo.6 Claims: If you are applying against open seats and claiming 5 preferential marks for weightage darken the appropriate circle and if applying claim for 10 preferential marks for weightage, darken the relevant circle. (Only for MD/MS/M.Ch./PG Dip. & M.D.S. Courses)” It may be stated that column No.5 in the OMR application form deals with the courses such as MBBS/BDS; MD/MS/PG Diploma; MDS; M.Ch.; or any other. Column No.5a is with regard to the Seat Quota i.e. open and HCMS. Column No.6 is in respect of weightage claimed i.e. 10 and 5 marks. It may also be noticed that 02.03.2011 was the date for the examination and 06.04.2011 was the date of first counselling. The merit list of HCMS category candidates has been prepared on the basis of marks obtained in Papers I & II, whereas the merit list of open category candidates has been prepared by granting benefit of 10 or 5 marks as the case may be, whereas the writ petitions claiming benefit of marks of institutional preference were filed on 09.05.2011 and 12.05.2011. After hearing learned counsel for the parties, in respect of first question, we are of the opinion that it was accidental omission, when the words “only for open category” were not printed in the prospectus. Mr. Hooda, learned counsel for the University has produced prospectus for the 8 LPA No.1050 of 2011 last 4 years, wherein under the heading ‘Determination of Merit’, the words “only for open category” are specifically mentioned. The contention that it is accidental omission is supported by the column-wise instructions to fill up the OMR application form. The Column No.6 was to be filled up only if a candidate is applying against open seats. In view of the said fact, the writ petitioners cannot draw any benefit from the accidental omission in the prospectus. It may be noticed that the writ petitioners relied upon admission of CWP No.1303 of 2004 before this court. In the said writ petition, the challenge is to the restriction of 10 marks for the open category candidates alone. The said writ petition has a chequred history. The petitioner earlier filed a writ petition challenging limit of 10 marks to open category candidates, but the said writ petition was withdrawn when on account of relaxation in eligibility conditions, the petitioner was admitted in post-graduate course. Later, the writ petitions challenging relaxation were allowed, therefore the writ petitioner was given liberty to seek revival of his writ petition or to file fresh petition. Thereafter, the said petition was filed, wherein interim order is to allow the petitioner to continue with his post graduate course. Such writ petition pertains to admission in the year 2003. It appears that with the passage of time, the question raised in the said petition have become academic, as the petitioner therein must have completed three year course by now. A perusal of the said writ petition produced by learned counsel for the writ petitioners shows that even in the year 2003, the benefit of 10 marks was meant for open category candidates only. Pendency of such writ petition does not lead to any inference that the restriction of 10 marks to the open category candidates is per se illegal or not sustainable. It is not even argued by learned counsel for the writ 9 LPA No.1050 of 2011 petitioners that there was any conscious decision taken to change the policy of grant of marks by way of institutional preference to in-service candidates. Similarly, the argument that any instruction or direction to modify or change any condition could be issued by the University prior to the first counselling or that objection about the condition of eligibility could be made a week before the date of holding of the written test is again not tenable. It is not the case of any instruction or direction to modify or to change any condition or change of any eligibility condition. It is a case of mistake, which can be made out from reading of the prospectus along with the instruction to fill up the OMR application. Such mistake is apparent from the fact that the result of open category candidates was declared by granting benefit of 10 or 5 marks, as the case may be, but no such marks were granted in respect of the members of HCMS. The writ petitioners have not approached this Court soon after the declaration of result when the benefit of additional marks were not given. The petitioners did not approach this court even before the first counseling. The writ petitions were filed after more than a month of the first counselling. The grant of benefit at this stage shall upset the merit of all the candidates which cannot be done and at the back of the effected parties. It only shows that the writ petitioners have sought to take benefit after considerable time and not at the threshold of the admission process soon after the declaration of result and preparation of merit or even before the first counseling. The candidates have been admitted without any weightage in the first counseling whereas some of the candidates are claiming additional marks in the second counselling. Such claim shall result into anomaly and is not sustainable. The argument that certain candidates were not given OMR application forms or the instructions and, therefore, the column-wise 10 LPA No.1050 of 2011 instructions cannot be presumed to be known to the petitioners is again not tenable. Even if some of the candidates were not given OMR application forms, but it is not the pleaded cases of any of the candidates that they were no aware of the instructions, which were required to fill up the OMR application form. The prospectus clearly stipulated that application forms need to be filled up after reading of the instructions carefully. The writ petitioners had sufficient notice of the instructions. The writ petitioners are members of HCMS cadre and aware of the procedure for admission to the Post-graduate courses. Mere fact that OMR application forms were in short supply will not be sufficient to raise an inference that it was not a case of printing mistake. In any case, the petitioners have not chosen to make any such grievance at the first available opportunity. Thus, we find that the additional marks by way of institutional preference were meant only for open category candidates and that omission was words “only for the open Category” was result of an accidental mistake. In respect of the second question, again we find that marks for institutional preference cannot be given to the members of HCMS, for whom there is reservation of seats. In Saurabh Chaudri’s case (supra), the Constitutional Bench quoted extensively from Dr. Pradeep Jain’ Case (1984) 3 SCC 654 and noticed the distinction between the undergraduate courses and Post Graduate Medical Courses. It also approved judgment reported as Magan Mehrotra Vs Union Of India (2003) 11 SCC 186 and the judgment in All India Institute of Medical Sciences Students’ Union Vs. All India Institute of Medical Sciences, 2002 (1) SCC 428. It observed: 57. Some students of Delhi University, thereafter filed a writ petition questioning the residential reservation in Magan Mehrotra v. Union of 11 LPA No.1050 of 2011 India (2003) 11 SCC 186. A Bench of this Court therein by an order dated 11-9-2002 noticing the conflict between the decisions in Dr. Pradeep Jain Vs. Union of India (1984) 3 SCC 654 on the one hand and Dr. Parag Gupta Vs. University of Delhi (2000) 5 SCC 684 on the other, issued notices to all the States excepting the States of Jammu & Kashmir and Andhra Pradesh and referred the matter to a three-Judge Bench. In Magan Mehrotra Vs. Union of India (2003) 11 SCC 186 this Court held that the decision in Dr Parag Gupta Vs. University of Delhi (2000) 5 SCC 684 is contrary to the decision in Dr. Pradeep Jain Vs. Union of India (1984) 3 SCC 654 stating: (SCC p. 190, paras 8-9) “8. … A bare look at the judgment of the three-Judge Bench in Dr. Pradeep Jain Vs. Union of India (1984) 3 SCC 654 and two-Judge Bench in Parag Gupta case (2000) 5 SCC 684 in relation to the question of preference in the postgraduate course, it cannot but be held that Parag Gupta case (2000) 5 SCC 684 took a different view by upholding the residential preference, in essence, which was contrary to the judgment of the three-Judge Bench in Pradeep Jain case (1984) 3 SCC 654. Independently, on examining the issue of preference, we are also of the considered opinion that the decision rendered by this Court in Pradeep Jain case (1984) 3 SCC 654 had taken the correct criterion into consideration and we therefore, agree with the principles evolved and the ratio given in Pradeep Jain case (1984) 3 SCC 654 so far as it relates to admission into the postgraduate courses and the question of institutional preference to be given to those who had studied their undergraduate courses in the very institution as against the 15% quota on all-India basis. In this view of the matter, the impugned Bulletin of Information issued by Delhi University in relation to the postdoctoral (DM/MCh) postgraduate degree must be held to be contrary to the direction of this Court in Pradeep Jain case (1984) 3 SCC 654 and the same is accordingly quashed. However, this order shall be made effective from the next academic session. 9. We, however, direct the States of Assam, Tamil Nadu, Goa and Karnataka to follow the pattern of institutional preference as has been indicated by this Court in Pradeep Jain case (1984) 3 SCC 654 and reiterated by us today.” 58. We may, however, notice that this Court in K. Duraisamy v. State of T.N. (2001) 2 SCC 538 upheld the sources for admission by giving preference to the doctors working in the hospitals in the postgraduate courses on the ground that the same constitutes a valid classification. 12 LPA No.1050 of 2011 59. The discussions on this topic would remain incomplete if we fail to notice a recent decision of this Court in AIIMS Students' Union Vs. AIIMS (2002) 1 SCC 428 rendered by one of us, Hon'ble Lahoti, J. wherein this Court, keeping in view the peculiar situation obtaining in the case of AIIMS Students' Union Vs. AIIMS (2002) 1 SCC 428, held institutional reservation to be unconstitutional. It, however, keeping in view the necessity of giving institutional preference to students who had studied from AIIMS, directed that such preference be given to the extent of 25% of students instead of 33%. However, keeping in view the fact that there were forty seats in MBBS course whereas 132 seats in postgraduate courses, the institutional preference to be given to the students of AIIMS came to about 82.5%. In All India Institute of Medical Sciences case (supra), it was found that the institutional reservation is not supported by the Constitution or constitutional principles. A certain degree of preference for students of the same institution intending to prosecute further studies therein is permissible on grounds of convenience, suitability and familiarity with an educational environment. Such preference has to be reasonable and not excessive. In the present case, the writ petitioners might have passed out from the same institute, but are now members of State Medical Service Cadre. Once they have entered State Medical Service Cadre, they cannot fall back upon the source of their educational qualification, as the admission to the post-graduate courses is not on the basis of their educational qualification, but the fact that they have served the State for the specified period of years and their specialized services are required in the State. Therefore, the grant of 10 marks by way of institutional preference to in- service candidates is otherwise also not justifiable. Sanjay Ahlawat’s case (supra) was decided long before the larger bench judgments in All India Institute of Medical Sciences and Saurabh Chaudri’s cases (supra) came to be delivered. The judgment in Gopal D. Tripathi’s case (supra) is not the case of the issue of the 13 LPA No.1050 of 2011 institutional preference but reservation for in-service candidates having served in rural area. The principals discussed and finding recorded are not applicable to the issues arising in the present appeal. In view of the above, we find that the