Holding

The allocation of the vacant seat to a service candidate with lower marks was arbitrary; the appellant was entitled to admission.

Summary

Dr. A. Franklin Joseph, a registered medical practitioner, was second on the waiting list for a Diploma in Diabetology seat that became vacant when the All India Quota seat was returned to the State. The State filled the vacancy with a service candidate who had lower marks (71.50%) than Dr. Joseph (76.75%), invoking a 50:50 service‑non‑service ratio. The High Court upheld the State's action, holding that the ratio justified the allocation. On appeal, the Supreme Court found that no statutory rule mandated the 50:50 split, and that allocating the seat to a lower‑scoring candidate was arbitrary and violated merit. The Court ordered that Dr. Joseph be admitted to the course and directed the State to frame clear allocation rules for future admissions.

Issues considered

Whether the State's allocation of the vacant All India Quota seat to a service candidate with lower marks is arbitrary and illegal.
Whether a 50:50 ratio between service and non‑service candidates is a mandatory rule or merely a matter of convenience.
Whether the absence of a statutory rule requires the State to formulate explicit seat‑allocation guidelines.

Subjects

post‑graduate medical admissionseat allocationservice vs non‑service candidatesmeritarbitrarinessreservation ratiowaiting listrule making

Judgment

A DR. A. FRANKLIN JOSEPH
v.
STATE OF TAMILNADU AND ORS.

FEBRUARY 14, 1994
B
[M.N. VENKATACHALIAH, CJ., AND S. MOHAN, J.)

Education: Admission to Professional courses-Medical educa-
tion-Post-Graduate course in Diabetology-Seat allotted to All India Quota
not filled and returned to State-Allotted to a service candidate with lesser >-
C marks than the candidate in waiting list-50:50 f ommla followed to bring
about equality-Not followed in other courses-Matter of convenience-Held
arbitrary-No rules in existence-Desirability of making rules to be followed
from next academic year-Emphasised.

D The appellant, a r~gistered Medical Practitioner was one of the
candidates for admission to Diploma Course in Diabetology. He took the
entrance examination, secured 76.75% marks and was placed at no.2 in the
waiting list. There were four seats for the said course of which one was
allotted to All India Quota, two were filled up in open quota on merit basis,
and the remaining seat was filled up from out of service candidates. One
E of the candidates selected from the open quota did not join and the
candidate wait-listed at No.I was accommodated. The seat allotted to All
India quota was not filled and the seat was returned to the State Govern-
ment. Appellant made a representation that he might be admitted against
that vacancy, as he was the next in the waiting list, as per the practice
F followed in the post. Since there was no reply to his representation,
appellant tiled a Writ Petition before the High Court. Meanwhile, the said
seat was filled up with a service candidate. Appellant contended that the
said action of the respondents was arbitrary and was at variance from the
past practice followed in other disciplines; and that even in that very
G academic year for M.D. Pathology, the vacancy caused by non-filling up
from All India Quota, was allotted to open quota candidate and not to
service candidate, and 50:50 formula was not followed.

Taking the view that reservation should be 50:50 between service and
non-service categories, the High Court held that when a seat had been
H allotted to a service candidate just to equalise the ratio, there was no
924
DR. AF. JOSEPH v. STATE OFT.N. 925

arbitrariness on the part of the respondents. Thus the Writ Petition was A
dismissed, against which the present appeal has been filed.

The appellant contended that the allotment of the seat to a servicf'
candidate who had secured lesser marks than the appellant in the entrance
Examination was arbitrary.
B
The respondents contended that in order to equalise the two non-
service candidates, the second service candidate was selected and it was in
accordance with the practice followed in such selections.

Allowing the appeal, this Court c
HELD: 1.1. Admittedly, no rules in regard to allocation of seats in
Post Graduate Medical Courses have been framed; yet allocation must be
,. in the ratio of 50:50 as between service and non-service candidates, since
-'I-
according to the State, the High Court ruled on a prior occasion that such D
a ratio should be applied as it would be equitable. But it is equally
admitted that such a principle was not adopted. As a matter of fact in the
case of M.D. Pathology course 1992-93, the total number of seats were nine.
Five seats were filled up by non-service candidates and four seats were
given to service candidates. When the seat allotted to All India Quota was
surrendered, that was allotted to a non-service candidate. There is no E
proper explanation as to why the' same principle was not adopted in the
case of the course in question, namely, Diploma in Diabetology. This shows
the State is taking umbrage under the ruling of the High Court whenever
it suits it. Therefore, there is every justification for the appellant to
complain that the principle is used more as convenience than to bring F
about equality between service and non-service candidates. This should
never be so. (930-H; 931-A-C]

1.2. A candidate with a lesser percentage of marks i.e. 71.50% has

I +
been preferred as against the appellant who had secured 76.75% marks.
Equality is a laudable principle but not to be used by the State at its whimp G
and fancies. The appellant being the first in the waiting list having secured
76.75% marks would be legally entitled to a~ission in preference to the
service candidate whose selection is clearly arbitrary. The appellant should
not be deprieved of his legitimate due, and he should be admitted to the
course. (931-G, H; 932-A, B] H
926 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Ajay Kumar Agrawal v. State of U.P., A.I.R. (1991) S.C. 498, relied on.

2. It is desirable that rules should be made as to the proportion of
allotment Letween service and non-service candidates, thereby avoiding
accusation of arbitrariness, from the next academic year onwards.
(932-B, CJ
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 724 of
1994.

From the Judgment and Order dated 6.8.93 of the Madras High
Court in W.P. No. 7597 of 1993.
c C. Subramaniarn, Dr. A. Francis Julian and R.N. Keswani for the
Appellant.

D
R.I( Jain and P.R. Seetharaman for the Respondent.

The Judgment of the Court was delivered by
-
MOHAN, J. 1. Leave granted.

The short facts of the case are as under:

E The appellant passed M.B.B.S. examination and was a registered
practitioner. In August, 1992 appellant sent application for the post-
graduate course and post-graduate diploma course for the academic year
1992-1993 pursuant to the advertisement inviting applications by respon-
dent No. 2. He applied for M.D. general medicines and Diploma in
+
Diabetology. He took the common entrance examination conducted by
F Director of Medical Examinations on 6.9.1992 and was' placed in the
waiting list at serial No. 2 for Diploma in Diabetology having secured
76.75% marks. Out of total number of four seats for Diploma in Diabetol-
cgy, one seat was allotted to All India Quota, two were filled up in open
quota on merit basis and the remaining one was filled from out of service
G candidates. One did not join the course out of the seats filled up in open
quota and therefore, waiting list serial No.1 was accommodated in the said
vacancy.

2. As the seat allotted to All India Quota was not filled, the said seat
was returned to the State Govemm~nt. The appellant, therefore, on
H 6.4.1993 sent a letter to respondent No. 3 to admit him in the said vacancy
DR. AF. JOSEPH v. STATE Of T.N. (MOHAN, J.] 927

as he was the next in the waiting list in accordance with the practice being A
followed by the respondent in the past.

3. Since the appellant did not receive any reply from respondent No.
3 and he learnt that there were attempts to fill the said seat with another
influential candidate, he filed Writ Petition NO. 7597 of 1993 before the B
Madras High Court on 18.4.1993 seeking directions to the respondents to
~dmit him in the Diploma in Diabetology course for 1992-1993.

-< 4. In the counter-affidavit filed by the respondents on 14.7.1993, it
was stated that they have filled the All India Quota with a service candidate
who had secured only 71.50% marks for below than that of the appellant C
who had secured 76.75% marks.

5. Appellant filed rejoinder affidavit on 31.7.1993 pointing out that
the action of· the respondents in allotting the All India Quota which fell
vacant to service candidate was arbitrary and was at variance from the D
practice being followed in other disciplines in the past years as well as
during· this academic year. It was also stated specifically that in the case of
M.D. Pathology, the vacancy caused by the All India Quota not being filled
up was allotted to the open quota only and not to the service candidate
and no 50:50 formula was followed there. E
6. The respondent No. 3 in his additional-counter dated 5.8.1993
admitted the facts that the State Government had not framed any rule for
filling up the seat falling vacant against the All India Quota. The respon-
dent also did not deny the specific allegations made in the rejoinder filed
by the appellant that in the case of M.D. Pathology, no 50:50 formula was F
followed.

7. The Division Bench of the High Court by its order dated 6.8.1993
dismissed the writ petition upholding the allotment of the seat to the
service candidate. It took the view that the reservation should be 50:50 G
between ~ciidates from service as well as non-service categories. When
a seat had been allotted to a service candidate just to equalise the ratio, it
could not be said that the action of the respondent was arbitrary or illegal.
It is under these circumstances, the present appeal has come to be
preferred. H
928 SUPREME COURT REPORTS (1994) 1 S.C.R.

A 8. The learned Senior counsel for the appellant Shri Siva Sub-
ramaniam would argue that the appellant had secured 76.75% marks in the
entrance examination. He was the first in the waiting list. Therefore, he
should have been allotted a seat which was surrendered to the State from
all India quota. The State Government has, without any rules, arbitrarily
B allotted the seat to service candidate who had secured only 71.50% marks
which are far lower than that of the appellant. If merit alone is to be the
criterion for selection, then allotment cannot be supported. Of course, if a
seat had been reserved for a particular category, the issue would have been
different. But, there was no such reservation in the instant case. Therefore, '>--
C it is submitted that the allotment to service candidate is arbitrary.

9. In other discipline such as M.D. Pathology, a seat allotted to All
India Quota returned to State came to be filled by merit only. The same
practice had been followed in this case as well. Out of ten seats allotted to
M.D. Pathology, six seats including that of All India quota which fell vacant
D were allotted to merit candidates. Only four seats were allotted to service
candidates. This was cited as an instance to show that the ratio of 50:50
was never followed. Merely because it suited the authorities to apply this
principle, it cannot be done arbitrarily. In this case, only one seat was
reserved for service candidate that having been filled up by a service
E candidate; it cannot be stated that by application of 50'.50 rule again, it
should be filled by a service candidate, more so, in the absence of any
specific rules in this regard.

10. The learned counsel appearing for the State would submit that if
really justice is to be done between service and non-service candidates, the
F
application of the rule of 50:50 could certainly be justified. Where already
one of the seats came to be allotted to service candidates out of four in
order to equalise the two non-service candidates, a second service can-
didate had been selected. Therefore, the first in the waiting list Dr.
Balamurgan in the service quota was selected. It was this practice which
G has been followed with regard to all selections.

11. The following details would bring out the factual controversy to
the fore.

H "Diploma in diabetology:
DR.AF.JOSEPH v. STATE OFT.N. [MOHAN,J.) 929

Total number of Seats 3 A
Allocation for merit quota (Open) 2

Allocation for service quota 1

OPEN QUOTA 50% SEAT- 2 B
SELECTED CANDIDATES
NAME OF THE
SL.NO. E.E.NO. MARKS
CANDIDATE
1. 262748 Dr. T.G. Srinivasan 79.00
2. 352701 Dr. R. Venkataraman 78.50
c
SERVICE QUOTA 50% SEAT - 1

NAME OF THE
SL.NO. E.E.NO. MARKS
CANDIDATE
D
1. 2251145 Dr. P. Dharmarajan 73.25

The candidate Dr. R. Venkataraman, E.E. No. 352701 in the
Open (Merit) Quota did not join the course. Hence, the vacancy
was filled up by Dr. Nagarajan Bose, E.E. No. 252410 from the
merit (open quota) waiting list No. 1 (in the open quota) who E
secured 78.25 marks. The details of wait listed candidates operated
in the merit (open quota) is as below:

Waiting List Open Competition (Merit)

S.No. E.E.No. Name Sex SIP Community Marks F
1. 252410 Dr. Nagarajan Bose M p BC 78.25
2. 252537 Dr. Franklin Joseph M p BC 76.75
3. 262635 Dr. S. Ravi M p FC 76.25
4. 452264 Dr. R. Rangarajan M p FC 75.75
G
5. 252631 Dr. G. Sivakumar M p FC 75.25

S - Service, P -Private

Thus the following candidates joined the Diploma Course in
Diabetology. H
930 SUPREME COURT REPORTS (1994) 1 S.C.R.

A OPEN QUOTA - 2 Seats

1. 262748 Dr. T.G. Srinivasan, 79.00

2. 252410 Dr. Nagarajan Bose 78.25

B SERVICE QUOTA

1. 251145 Dr. P. Dharmarajan 73.25

Subsequently one vacancy arose in the speciality in Diploma in
Diabetology course consequent on the surrender of one seat under
c All India Quota by Director General of Health Services to State.
That Vacancy was filled up by candidates from service quota in S.
No. 1 in the wait list of candidates viz. Dr. R. Balamurugan. (E.E.
No. 272150) who secured 71.50 marks.

The following is the SERVICE QUOTA - WAITING LIST
D
S.No. E.E.No. Name Sex SIP Community Marks
1. 272150 Dr. Balamurugan M s BC 71.50
Dr. K. Sheik Anwar
2. 262304
Hussain
M s BC 68.50
E 3. 151061 Dr. T.A. Madeeswaran M s BC 67.50
4. 251303 Dr. Raja Ganesan M s BC 67.25
5. 231050 Dr. T Pugazhendi M s BC 66.00"

12. On the basis that the seat was surrendered by the Director
F General of Health Services to the State was filled up by the service
candidate and thereby ratio of 50:50 between service candidates and non-
service candidate has been maintained, is the stand of the State.

13. The appellant would argue that there are no r~es t() this effect.
G The rule of 50:50 had been adopted as a matter of convenience. The
question is which of the stand is correct.

14. It is admitted by the learned counsel for the State of Tamil Nadu
that no rules in this regard have been framed. Yet allocation must be in
the ratio of 50:50 as between service and non-service candidates since, .the
H High Court ruled on a prior occasion that such a ratio should be applied
DR.AF.JOSEPH v.STATEOFT.N.[MOHAN,J.] 931

as it would be equitable. But it is equally admitted that such a principle A
was not adopted. As a matter of fact in the case of M.D. Pathology course
1992-93, the total number of seats were nine. Five seats were filled up by
non-service candidates and four seats were given to service candidates.
When the seat allotted to All India Quota was surrendered that was
allotted to non-service candidate. Why the same principle was not adopted B
in the case of the course in question namely Diploma in Diabetology the .
State is hard put to explain. This shows the State is taking umbrage under
the ruling of the High Court whenever it suits the State. Therefore, there
.,,£ is every justification for the appellant to complain that the principle is used
more as convenience than to bring about equality between service and
non-service candidates. This should never be so. What is the result of the C
State action? Merit is the casualty. At this juncture, we may usefully refer
to the observations of this Court made in Ajay Kumar Agrawal v. State of
U.P., AIR (1991) SC 498 @ 502:

''This is a specialised study and being Post-Graduate Col,II'se in D
the Medical Faculty, the most eligible and qualified students
should have access to the courses for the ultimate special good. In
the main case Pradeep Jain v. Union of India, (1984) 3 S.C.C. 654,
at page 673: AIR (1984) SC 1420, of the reports this Court said,
at page 673 (1984) 3 S.C.C.:
E
'The philosophy and pragmatism of universal excellence
through equality of opportunity for education and advancement
across the nation is part of our founding faith and constitutional
creed. The effort must, therefore, always be to select the best and
most meritorious students for admission to techni~al institutions
F
and medical colleges by providing equal opportunity to all citizens
in the country..... Moreover, it would be against national interest to
admit in medical colleges for other institutions giving instruction
in specialities, less meritorious students :when more meritorious
students are available ... .'."
G
15. A candidate with a lesser percentage of marks of 71.50%. has
been preferred as against the appellant who h~d secured 76.75% marks.
Equality is a laudable principle but not to be used by the State at its whims
and fancies. The stand of the State is wholly untenable. The appellant being
the first in the waiting list having secured 76. 75% marks would be legally H
932 SUPREME COURT REPORTS {1994] i S.C.R.

A entitled to admission in preference to Dr. Bala Murugan whose selection
is clearly arbitrary. The State has adopted the principle of "show me the
man, I will show you the law". The appellant should not be deprived of his
legitimate due. Therefore, it is hereby directed that the State-respondent
shall admit the appellant within two weeks from today since the academic
year had commenced and the course is in progress. The Civil Appeal will
B stand allowed with costs.

16. Before we part with the case, we would like to emphasise the
desirability of making rules as to the proportion of allotment between
service and non-service candidates, thereby avoiding accusation of ar-
c bitrariness from the next academic year onwards.

G.N. Appeal allowed.