LPA No.379/2010 & connected matters Page 1 of 39 * HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 28th July, 2010 % Judgment Pronounced on: 6th September, 2010 + LPA No. 379/2010 Dr. Saurabh Gaur & Anr. ..... Appellants Through: Mr. Sunil Kumar, Sr. Adv. with Mr. Awanish Sinha, Mr. Chandrashekhar Yadav, Advs. Versus Vice Chancellor, Guru Gobind Singh Indraprastha University & Ors. ….. Respondents Through: Mr. Mukul Talwar, Adv. for R1 Mr. A.S. Chandhiok, ASG with Mr.Lalit Kumar, Mr. Jayender, Mr.Pratap Singh Parmar, Advs. for Union of India Mr. Amarendra Saran, Sr. Adv. with Mr.Amit Kumar, Mr. Sanchit Kumar, Advs. for MCI Mr. G.D. Gupta, Sr. Adv. with Mr.S.K. Sinha, Adv. for R-4 to 59 Mr. Rajat Katyal, Adv. for AIIMS Mr. Sushil Dutt Salwan, Mr.Aditya Garg, Advs. for R-62 to 68 + LPA No. 380/2010 Dr. Saurabh Mittal & Anr. ..... Appellants Through: Mr. Sunil Kumar, Sr. Adv. with Mr. Awanish Sinha, Mr. Chandrashekhar Yadav, Advs. Versus Vice Chancellor, Guru Gobind Singh Indraprastha University & Ors. ….. Respondents LPA No.379/2010 & connected matters Page 2 of 39 Through: Mr. Mukul Talwar, Adv. for R1 Mr. A.S. Chandhiok, ASG with Mr.Lalit Kumar, Mr. Jayender, Mr.Pratap Singh Parmar, Advs. for Union of India Mr. Amarendra Saran, Sr. Adv. with Mr.Amit Kumar, Mr. Sanchit Kumar, Advs. for MCI Mr. G.D. Gupta, Sr. Adv. with Mr.S.K. Sinha, Adv. for R-4 to 59 + WP(C) No. 3703/2010 Dr. Saurabh Mittal & Anr. ..... Petitioners Through: Mr. Sunil Kumar, Sr. Adv. with Mr. Awanish Sinha, Mr. Chandrashekhar Yadav, Advs. Versus Union of India & Others ….. Respondents Through: Mr. A.S. Chandhiok, ASG with Mr.Lalit Kumar, Mr. Jayender, Mr.Pratap Singh Parmar, Advs. for Union of India Mr. Rajat Katyal, Adv. for AIIMS Mr. Mukul Talwar, Adv. for R3 Mr. Amarendra Saran, Sr. Adv. with Mr.Amit Kumar, Mr. Sanchit Kumar, Advs. for MCI 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 LPA No.379/2010 & connected matters Page 3 of 39 DIPAK MISRA, CJ Regard being had to the identic of controversy raised in this batch of matters, it was heard analogously and is disposed of by a singular order. For the sake of convenience and clarity, we shall first refer to the facts in LPA No. 379/2010 and thereafter, wherever necessitous, we shall advert to the factual matrix in the other appeal and the writ petition. 2. Questioning the legal substantiality and the sustainability of the order dated 28th April, 2010 passed by the learned Single Judge in CWP No. 2517/2010, the present intra-Court appeal has been preferred under Clause 10 of the Letters Patent. 3. The facts which are imperative to be exposited for adjudication of the controversy at hand are that the Guru Gobind Singh Indraprastha University (for short „the University‟), the first respondent herein, held a Common Entrance Test (for short „CET‟) on 2nd April, 2010 for admission to 120 seats of the Post Graduate Medical Course for Delhi State quota in which 130 candidates appeared for its two affiliated institutions, namely, Vardhman Mahavir College, Safdarjung Hospital, New Delhi and Post Graduate Institute of Medical Education and Research, Dr. Ram Manohar LPA No.379/2010 & connected matters Page 4 of 39 Lohia Hospital, New Delhi, the respondent Nos.2 and 3 respectively. The said respondents were allotted 51 and 72 seats respectively. The result of the CET was declared on 2nd April, 2010 itself in which 24 candidates were declared successful to take admission in respect of the allotted seats. After the declaration of the result, some of the candidates made a representation to the Vice Chancellor of the respondent No.1 for cancellation of the said test and for holding a fresh CET. That apart, many other grievances were raised before the said respondent. When their grievances were not paid heed to, they preferred CWP No. 2517/2010 seeking a direction to cancel the result of CET on account of many a lapse and to conduct a fresh examination. Be it noted, in the first examination, 24 candidates had qualified. 4. In the writ petition, the learned Single Judge, by order dated 23.4.2010, had issued certain directions. In pursuance of the aforesaid order, the Vice Chancellor of the University had convened a meeting with certain experts and the said Committee had taken a decision which reads as follows: “(i) Since no clarification has been received from the Medical Council of India till date, the decision has been taken to fill up all the remaining seats in the larger interest of the students in the light of the Hon’ble Court direction dt. 23 April 2010. LPA No.379/2010 & connected matters Page 5 of 39 (ii) Considering the matter, the Committee decided that the University should propose to carry out a second test for filling the remaining vacant seats by providing sufficient preparation time for the students. (iii) The University while carrying out this second tests should adhere to all the standards of the examination and should not allow any dilution in the standards and quality of questions. (iv) In the event of any vacant seats remaining after the second test and counseling, the University would surrender the State Quota Seats to the Central Government for further necessary action so that the same are filled up. (v) The committee felt that this decision being taken as a one time measure under special circumstances and would not be treated as a precedence.” 5. When the matter was listed before the learned Single Judge on 28.4.2010, the learned Single Judge referred to the said decision and came to hold as follows: “During the course of the arguments the petitioners did not press prayer (a) and insisted for prayer (b) to direct the respondents to conduct a fresh entrance test to fill the remaining 96 seats. Contention of counsel for the petitioners is that in all there were 120 seats meant for the State quota under clause 7.2 of the admission brochure and out of that test conducted on 2nd April, 2010 only 24 candidates qualified. Out of these 24, 19 are from the general category and 5 are from the reserved category. Contention of the counsel for the petitioners is that still 96 seats remain to be filled up by the University. The University had earlier taken up the matter with the MCI so as to allow them to adopt percentile system but no response was received by the respondent from the MCI. In the meanwhile, the LPA No.379/2010 & connected matters Page 6 of 39 petitioners had approached this Court by way of the present writ petition and pursuant to the directions given by this Court the respondent convened a meeting and has taken the decisions as reproduced above. Taking into consideration the said decision taken by the University, let the University hold a re-test for filling the remaining 96 vacant seats and allow all the candidates who are eligible to appear in the said retest under the State quota. The University shall adhere to the said decision taken by the experts in the meeting held on 26.4.2010 and the other standards of examination as prescribed in the bulletin. Before fixing the schedule for the re-test of the said examination, the respondent will keep in mind that on 9th and 23rd May, 2010 entrance exam for post graduate medical course of All India Institute of Medical Sciences and PGI Chandigarh respectively are fixed.” 6. Being dissatisfied with the aforesaid order, the present appellants have preferred this appeal with a prayer for grant of leave as they were not parties to the writ petition and their rights have been affected. The prayer for leave was granted and the Letters Patent Appeal was entertained. 7. Initially, when the LPA was taken up, this Court had issued notices and directed that counseling shall be conducted but the same shall not be given effect to till 28th May, 2010. On 28th May, 2010, this Court passed the following order: “We have heard learned counsel for the parties at length. This Court on 26th May, 2010 while dealing with interlocutory application had directed that the LPA No.379/2010 & connected matters Page 7 of 39 counseling shall be conducted but the same shall not be given effect to till today. We have been apprised that the counseling has been deferred till 30th May, 2010. In course of hearing, two aspects emerged for consideration, namely, whether the State quota has been properly determined or the State had acted solely on the basis of communication made by the Union of India fixing the number of seats as well as the percentage; and secondly, whether the University concerned could have held a second entrance examination. We have been apprised by Mr. Talwar, learned counsel for Guru Gobind Singh Indraprastha University that the number of seats were increased after due correspondence and consultation with the Central Government. The second entrance test, learned counsel for the University would submit, was conducted keeping in view the leave granted by this Court to the Vice-Chancellor to consider the matter and thereafter a test was conducted in respect of 96 seats. We have been further apprised that 105 students have undertaken the second entrance test. In view of the aforesaid, keeping the issue open, we modify the interim order that was passed on earlier occasion to the extent that the counseling shall be held, as re-scheduled, on 30th May, 2010 and be given effect to, subject to final result of this writ petition. The matter be listed on 31st May, 2010.” 8. The aforesaid order was assailed before the Apex Court in SLP(C) No. 16634/2010 and their Lordships, vide order dated 02.06.2010, passed the following order: “Heard learned counsel for the parties and perused the record. LPA No.379/2010 & connected matters Page 8 of 39 In the facts and circumstances of the case, we do not find any valid ground or justification to entertain the petitioners' prayer for stalling the admission to the post-graduate courses on the basis of retest conducted by the University pursuant to the order passed by the learned Single Judge of the High Court. With the above observation, the special leave petition is dismissed. While dismissing the special leave petition, we make it clear that the admissions made hereinafter shall remain subject to final adjudication of the matters pending before the High Court.” 9. When the matter was taken up on 4th June, 2010, this Court passed the following order: “Learned counsel for the parties fairly stated that though the application for review has been filed in this case, the main order was passed in LPA No. 380/2010. It is conceded to that in the second line of paragraph 3 at page 3 it has been mentioned that 17 seats are lying vacant, though, thereafter, as communicated by the university, 27 seats are lying vacant. Thus, instead of 17 it should be read as 27. Needless to emphasize, that the seats are available, subject to the directions in our earlier order, shall be kept for the All India quota in ongoing counseling.” Thereafter, the matter was finally heard. LPA No.379/2010 & connected matters Page 9 of 39 10. As the present appeal has been preferred after obtaining leave from this Court, it is necessary to refer to certain facts and the attack to the grounds of assail. 11. The appellants had appeared in the examination conducted by the All India Institute of Medical Sciences (for short „AIIMS‟) for Post Graduate Medical Courses of MD/MS/PG Diploma/MDS for the 50% seats for all Government /Municipal Colleges in India except for the Government Medical Colleges in the States of Andhra Pradesh and Jammu & Kashmir and had become successful in the said entrance examination. The seats in the Post Graduate Medical Courses in all the Government and Municipal Medical Colleges of all States are divided into two categories, one, the All India Quota seats and the second, the State Quota seats in equal proportion. The All India quota seats are unreserved seats which are allotted only on the basis of merit in the All India Entrance Examination conducted by the respondent No.3, the Principal, Post Graduate Institute of Medical Education and Research at Dr. Ram Manohar Lohia Hospital and the State quota seats are allotted on the basis of the CET conducted by the individual States in which only those students who are domicile in that State can appear. The All India quota seats are filled up by way of two rounds of counseling which are conducted by the Guru LPA No.379/2010 & connected matters Page 10 of 39 Gobind Singh Indraprastha University and Vardhman Mahavir College. The second round of All India counseling is conducted only after the first round of counseling for all the States is over and this is done to ensure that full effect is given to the All India quota inasmuch as all the students appearing in the All India quota examination also appear in the CET of the States of which they have a domicile and vacate their All India seats if they get a better institution or course in their State quota. After the first round of counseling by the States, several seats fall vacant and are reverted to the All India quota and accordingly, several students are benefited. It is urged that in no event, reservation based on residence/institutional preference should exceed 50% of the total number of seats in such courses and to ensure that 50% of the All India quota is given full effect to and is not diluted by reason of any malpractice followed by any State, directions have been issued by the Apex Court for holding an extended second round of counseling after all the States have completed their first round of counseling. It is contended that the order passed by the learned Single Judge which is a consent order is in total disregard of the principle laid down by the Apex Court as a result of which the students who had failed in the first CET have been allowed to undertake the examination under the Delhi State quota. It is put forth that some students who had appeared in the All LPA No.379/2010 & connected matters Page 11 of 39 India examination conducted by the AIIMS in January, 2010 filed a writ appeal before this Court against non completion of the first round of counseling by the different States and for not reporting in time the correct number of seats for the All India quota to be added in the second round of All India counseling. The said writ appeal was withdrawn as number of seats were involved and the appellants therein could approach the Apex Court. The Writ Petition (Civil) No. 189/2010 was preferred before the Apex Court and the Apex Court by order dated 13th May, 2010 had passed an interim direction in regard to the schedule for the extended second round of the Post Graduate counseling for the All India quota. As per the said direction, the second round of counseling is to be conducted between 2nd June, 2010 to 12th June, 2010 and all the States were directed to report the number of vacancies resulting from non joining, resigning and surrendering of seats from the All India quota to the Director General of Health Services on 27th May, 2010. The Apex Court further directed that not more than 50% institutional quota be permitted and the need was to consider the merit on All India basis. 12. It is set forth in the Memorandum of Appeal that the respondent University has extended 100% seats under the State quota and left no seats for the All India quota which is in direct conflict LPA No.379/2010 & connected matters Page 12 of 39 with the decisions of the Apex Court. It is also urged that in the action taken by the respondent No.1, not only illegality has crept in but merit has also been compromised. It is contended that had such a step not been taken by the respondent No.1, number of seats would have been available in the All India quota to benefit a number of doctors coming from all over the country and the meritorious doctors would have got admission in the Post Graduate course. It is averred that the learned Single Judge had fallen into grave error by issuing a writ of mandamus commanding the respondent No.1 to do such a thing which in law is impermissible. It is set forth that by virtue of the order of the learned Single Judge, PG seats in the institutes located in Delhi earmarked for institutional preference which remained vacant could not have been brought under the All India quota as a consequence of which the eligible candidates of the All India quota have lost the opportunity. It is the case of the appellants that by virtue of the direction to hold a second examination, the concept of institutional preference has been given an indecent burial and there has been 100% reservation for the students of Guru Gobind Singh Indraprastha University. Various averments have been made that the direction of the learned Single Judge is absolutely fallacious. It is highlighted that the learned Single Judge has completely erred in holding that there are no undergraduate seats in Ram Manohar Lohia LPA No.379/2010 & connected matters Page 13 of 39 Hospital and, hence, 57 seats allotted in the State quota should go to the All India quota as there is no question of institutional preference in the case of Ram Manohar Lohia Hospital. 13. At this juncture, we think it appropriate to refer to the counter affidavits filed in this appeal as the learned counsel for the respondents thought it appropriate to bring certain facts on record which were not brought on record before the learned Single Judge and further there were certain subsequent events which are required to be taken note of. 14. In the counter affidavit filed by the respondent No.1, it has been stated that the University had published the admission brochure with respect to the PG Medical Degree/Diploma Course of the University on 15.2.2010 in which 60 seats were shown to be reserved for the State quota out of the total number of 118 seats. Thereafter, the total number of seats was increased to 245 out of which 123 Degree/Diploma seats were allocated to the State quota. The said decision was uploaded on the website of the University on 19.4.2010. Despite the same, the appellants came to assail the same before this Court on 25.5.2010 and, hence, the doctrine of delay and laches comes into play. It is contended that the University functions LPA No.379/2010 & connected matters Page 14 of 39 within the framework of the Guru Gobind Singh Indraprastha University Act, 1998 and the Statutes, Rules & Regulations, Ordinances made thereunder and two medical colleges are affiliated to the said University. The Common Entrance Test which was to be conducted by the University on 2.4.2010 was only in respect of 60 seats to be filled up under the State quota. The term „State quota‟ actually refers to the quota of seats that are to be filled up from the graduates of the university concerned. This quota is determined at the level of the University and all MBBS graduates of the University are eligible to apply irrespective of the college in which they may have pursued their MBBS course. In total, 130 candidates applied for the said test but only 24 obtained the qualifying marks out of which 19 belonged to the General Category and 5 to the Scheduled Castes and Scheduled Tribes category. Under these circumstances, the respondent-University entered into correspondence with the Medical Council of India on 6.4.2010 requesting the MCI to relax the qualifying percentage. While the request of the University was pending with the MCI, WP(C) No. 2517/2010 was filed by the students. During the pendency of the writ petition, the Post Graduate Medical Degree/Diploma seats in the University were increased from 118 to 245 seats out of which the State quota consisted of 123 seats (120 degree seats and 3 diploma seats). The learned LPA No.379/2010 & connected matters Page 15 of 39 Single Judge on 23.4.2010 recorded the submission of the learned counsel for the parties and noted that 96 seats were likely to go waste and, accordingly, directed the University to take measures for filling up the remaining vacancies in the current academic session itself. Pursuant to the aforesaid direction, the University took a decision to hold a second CET which was approved by the learned Single Judge. It is urged that the two reasons which weighed with the Committee of the University while recommending a re-test to be held for the remaining vacancies are that the percentage of candidates who had passed the test was abnormally low as compared to the past years and secondly, the University was of the bona fide opinion that if the second test was not held, the 96 degree seats and 3 diploma seats would go waste. It is also put forth that in the year 2009-2010, 19 seats could not be filled up out of the State quota and remained vacant. After referring to the process of examination, it is set forth that 105 candidates appeared in the re-test held on 26.5.2010 and 79 candidates obtained qualifying marks. The counseling was conducted on 29.5.2010 and admissions were given on 31.5.2010. It is put forth that 71 candidates took admission and the said position was communicated to the Director General of Health Services (DGHS) by communication dated 1.6.2010. LPA No.379/2010 & connected matters Page 16 of 39 15. It is urged by the University that it is the stand of the appellants that the State quota should be limited to 50% of the MBBS seats in the University but when there are only 100 MBBS seats in the University, the limitation of the State quota to 50% is not correct inasmuch as the University has three medical colleges attached to it and the total number of MBBS seats offered by the University at present is 240 seats. It is also the stand of the University that the matter relating to affiliation of other medical colleges (including the medical college attached to the ESI Hospital, Delhi) is also under consideration and the number of seats were likely to increase for the academic year 2011-2012. It is further put forth that the seats were allocated in the State quota by the Union of India after the increase of seats and the same is evident from the correspondences made between the Union of India and the University. 16. Be it noted, a counter affidavit has been filed by the Union of India in the writ petition contending, inter alia, that the respondent No.1, vide letter dated 26.11.2007, had requested the University of Delhi for not including the seats of Ram Manohar Lohia Hospital and Safdarjung Hospital while finalizing the prospectus for the Post Graduate Entrance Examination as it has become necessary to change the affiliation of the existing MD/MS seats in the said two LPA No.379/2010 & connected matters Page 17 of 39 institutions from the University of Delhi to the Indraprastha University. The third respondent, vide letter dated 7.1.2008, had granted professional affiliation for the Post Graduate course in Safdarjung hospital for the academic year 2008-09 subject to certain conditions. 17. It is urged that pursuant to the direction issued by the Apex Court, the AIIMS has conducted the CET for Post Graduate Degree and Diploma Course on All India basis for the All India quota. For the academic year 2010-2011, total 56,826 candidates had appeared in the test conducted by the AIIMS and 11,942 students have qualified the CET as per the norms fixed by the Medical Council of India. Out of the