DR. PUNEET GULATI AND ORS. ETC. ETC.versusSTATE OF KERALA AND ORS. ETC. ETC.

                   [2011] 10 S.C.R. 279

       DR. PUNEET GULATI AND ORS. ETC. ETC.                   A
                             v.
       STATE OF KERALA AND ORS. ETC. ETC.
          (Civil Appeal Nos. 7037-38 of 2011)
                    AUGUST 17, 2011
                                                              B
 [ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER
               SINGH NIJJAR, JJ.] .   .

    Education/Educational institutions:
                                                              c
     Reservation for local students for admission to super
specialty Medical Courses in the State of Kera/a commencing
from the academic year 2010-2011 - Constitutional validity
of - The prospectus for admissions provided tha( students Who
had completed MBBS or Post-graduate courses.from Medical 0
Colleges in' Kera/a and Doctors who had done. Rural Service
in Kera/a, would be given preference for admission and
students who were not from Kera/a would get a chance for
admission only if there were no students from the State of
Kera/a available for adrrilssion in the aforesaid courses -
After commencement of selection process, the prospectus E
was amended limiting reservation in respect of candidates
with Rural Service in Kera/a to 10% of the seats and enlarging
the scope for students of Kera/a origin and children of
members of All India Service in Kera/a - Students who were
from outside Kera/a and had participated in the written F
examination, questioned the original as well as revised terms
of the prospectus by way of writ petitions challenging the
preferences and reservation provided to the local students in
the prospectus - High Court while allowing the claim of the
candidates who were from outside Kera/a, on the ground that G
 100% reservation was unconstitutional, chose not to give any
relief to the said students on the ground that the course had
commenced mor:_e than 6 months prior to the matter being
heard by the High Court - Held: The decision of High Court
                              279                              H
     280      SUPREME COURT REPORTS             [2011] 10 S.C.R.


l\regarding the constitutional validity of the first and second
  prospectus reserving 100% of the seats in the super specialty
  course for students from Kera/a alone is upheld - However,
  since the appellant was not given admission to the said
  course, on the strength of an invalid policy, he deserved to
B be accommodated in the said course in some way - Since
  by interim order, seats were set apart for the writ petitioners,
  appellants to be accommodated in one of the seats -
  Accordingly directions passed.

      Saurabh Chaudri & ·Ors. v. Union of India & Ors. (2003)
C 11 SCC 146: 2003 (5) Suppl. SCR 152 - referred to.
                          Case Law Reference:
       2003 (5) Suppl. SCR 152        referred to       Para 5

D        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     7037-7038 of 2011.

      From the Judgment & Order dated 06.04.2011 of the High
  Court od Kerala at Ernakulam in WA Nos. 1399 and 1429 of
E 2010.

         V. Giri,. S. Gopakumaran Nair, M.C. Dhingra, Gaurav
     Dhingra, John Methew, T.G.N. Nair, K.N. Madhusoodhanan,
     Anup Kumar, Romy Chacko, Liz Mathew, Amit Kumar, Ashish
     Kumar, Rekha Bakshi, Smita Madhu for the appearing parties.
F
           The Order of the Court was delivered by

           ALTAMAS KABIR, J. 1. Leave granted.

        2. This is a classic example where despite having
G succeeded in the proceedings before the High Court, the
  Appellants have not got the fruits of their victory. Although,
  initially there were five petitioners in the two Special Leave
  Petitions (now appeals) which we are considering, during the
  pendency of the matters all the petitioners, other than Dr. Amish
H Kiran Bhai Mehta, opted for separate disciplines and are no
   DR. PUNEET GULATI AND ORS. ETC. ETC. v.   281
STATE OF KERALA AND ORS. [ALTAMAS KABIR, J.]
longer interested in admission to the Super Speciality Courses     A
concerned. The appeals are, therefore, confined only to Dr.
Amish Kiran Bhai Mehta.

      3. The constitutional validity of reservations for local
students by the State for admission to Super Speciality Medical    8
Courses in the State of Kerala, commencing from the
academic year 2010-2011, was the subject matter of the writ
petition before the learned Single Judge of the Kerala High
Court. The prospectus for admissions provided that students
who had completed MBBS or Post-graduate courses from               C
Medical Colleges in Kerala and Doctors who had done Rural
Service in Kerala, would be given preference for admission and
students who were not from Kerala would get a chance for
admission only if there were no students from the State of
Kerala available for admission in the aforesaid courses.
                                                                   D
     4. Altogether, 85 seats were available for the Super
Speciality Courses. in the DM and MCH groups, of which 19
seats were reserved for Doctors who were in Government
service and the remaining 66 seats were available for selection
in the open merit quota. After the selection process had           E
commenced, the prospectus was amended limiting reservation
in respect of candidates with Rural Service in Kerala to 10%
of the seats and enlarging the scope for students of Kerala
origin and children of members of All India Service in Kerala.
Students who were from outside Kerala and had participated         F
in the written examination, questioned both the original and
revised terms of the different prospectus and challenged the
preferences and reservation provided to the local students in
the prospectus. The learned Single Judge dismissed their writ
petitions on the ground that after participating in the entrance   G
examination they were not entitled to challenge the prospectus.
However, in the writ appeals preferred by the said students, the
question as to whether it was open to the writ petitioners to
challenge the prospectus in Court, was referred to a Full Bench,
which, after holding that the writ petitions were maintainable,
                                                                   H
    282      SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A remanded the matters to the appeal court for a decision on
  merits. In the appeals, the appellants prayed for restoration of
  the original prospectus, which would have the effect of restoring
  unlimited preference to Doctors having performed Rural Service
  in Kerala. The remaining writ appeals were filed by the State
B challenging the decision of the learned Single Judge declaring
  the provisions of the original prospectus and the revised
  prospectus providing for reservation for Kerala students only,
  as unconstitutional.                                                   •

C      5. At this stage it may be kept in mind that challenge to
  the original and subsequent prospectus was based mainly on
  the ground that 100% reservation was unconstitutional as had
  been held by a Constitution Bench of this Court in Saurabh
  Chaudri & Ors. Vs. Union of India & Ors. [(2003) 11 SCC 146).
  The Division Bench of the High Court has extracted the relevant
D portion from the judgment in Saurabh Chaudri's case, relating
  to reservation at the level of Super Speciality. It was, inter alia,
  held that the higher the level of speciality, the lesser the role of
  reservation.

E      6. The Division Bench agreed with the views expressed
  by the learned Single Judge, but while technically allowing the
  claim of the candidates who were from outside Kerala, on the
  ground that 100% reservation was unconstitutional, chose not
  to give any relief to the said students on the ground that the
F course had commenced more than 6 months prior to the matter
  being heard by the Division Bench of the High Court.

       7. Mr. M.C. Dhingra, learned Advocate appearing for the
  appellants, submitted that a great injustice had been caused
  to the said appellants, who were denied admission to the
G Super Speciality Medical Courses in the State of Kerala on the
  basis of an invalid legislation, which was ultimately struck down
  by the High Court. Mr. Dhingra submitted that most of the
  candidates who had been admitted in the groups of Super
  Speciality Courses, were far below the appellants in merit.
H
   DR. PUNEET GULATI AND ORS. ETC. ETC. v.   283
STATE OF KERALA AND ORS. [ALTAMAS KABIR, J.]
Accordingly, despite being superior in merit, the appellants          A
were denied admission in the aforesaid courses on the basis
of a reservation policy, which was unconstitutional and was
ultimately held to be so. Mr. Dhingra submitted that after striking
down the reservation policy, as contained in the prospectus for
admission to the Super Speciality Courses, the High Court             B
ought to have evolved a mechanism by which the appellants
were also admitted to the courses.

     8. Ms. Liz Mathew, learned Advocate, who appeared for
the State of Kerala, attempted to support the decision taken          C
to admit the 10 students from the State of Kerala to the said
course, but faced with the decision of both the learned Single
Judge as well as the Division Bench, she had no other option
but to accept the fact that the appellants had been
discriminated against. Since the State of Kerala had not
challenged th.e decision of the Division Bench on the question        D
regarding 100% reservation, Ms. Mathew merely reiterated the
views expressed by the Division Bench that it was too late to
grant any relief to the-appellants herein, as a long time had
elapsed since the commencement of the courses. Ms. Mathew,
however, stated that five seats had been kept apart in the            E
relevant courses a~ per the direction of this Court for the
Academic Session 1 2011-2012.

     9. Mr. S. Gopakumaran Nair, learned Senior Advocate,
who appeared for Dr. Cecil Kunnappilly, who was the 2nd               F
candidate in the waiting list for admission to the M.Ch. Genito
Urinary Surgery course, submitted that despite having been kept
in the waiting list, his client would stand to be eliminated
therefrom, if the appellant, Dr. Mehta was to be absorbed in
the said discipline for the academic year 2011-2012.
                                                                      G
     10. Mr. V. Giri, learned Senior Advocate, find counsel
appearing for the Medical Council of India, did nof have much
to add to the submissions made by Ms. Mathew and Mr. S.
Gopakumaran Nair.
                                                                      H
    284      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A      11. Having considered the judgment of the learned Single
  Judge and the Division Bench and the submissions made on
  behalf of the respective parties, we have no hesitation in
  upholding the decision of the learned Single Judge and the
  Division Bench as to the constitutional validity of the first and
B second prospectus reserving 100% of the seats in the said
  Super Speciality Courses for students from Kerala alone, but
  we are also convinced that since the appellant was not given
  admission to the aforesaid course, on the strength of an invalid
  policy, he deserves to be accommodated in the aforesaid
c course in some way.
        12. By an interim order dated 20.th July, 2011, we had
  stayed the admission process for the Super Speciality Courses
  for the year 2011-2012 in the Government Medical Colleges
  in Kerala. Subsequently, by order dated 22nd July, 2011, we
D had modified the said order on the prayer made on behalf of
  the State of Kerala by directing that the admission process
  could continue but 5 seats were to be set apart for the
  petitioners, 2 seats in the M.Ch. Genito Urinary Surgery' Course,
  1 seat in M.Ch. Neuro Surgery Course and 1 seat in the DM
E Cardiology Course.

       13. Since, of the 5 seats reserved in terms of our order, 2
  are available in the M.Ch. Genito Urinary Surgery Course, we
  direct that although the appellant, Dr. Mehta, di,d not sit for the
F entrance examination for the year 2011-2012, on the strength
  of his marks in the entrance examination for .the year 2010-
  2011, he should be given admission in one of the two seats in
  the M.Ch. Genito Urinary Surgery course, which has been kept
  vacant in terms of our order dated 22nd July, 2011.

G        14. At this stage we may also consider the submissions
    which had been made by Mr. S. Gopakumaran Nair, learned
    Senior Advocate, that the candidate who was No.1 in the
    waiting list had opted for a· different discipline, namely, Thoracic
    Surgery and had already been given admission in the
H
   DR. PUNEET GULATI AND ORS. ETC. ETC. v.   285
STATE OF KERALA AND ORS. [ALTAMAS KABIR, J.]

Trivandrum Government Medical College. Accordingly, Mr.                A
Nair's client, Dr. Cecil Kunnappilly, could be considered for the
second seat which has been kept vacant in terms of our order
dated 22nd July, 2011. In the event the seat is available, Dr.
Kunnappilly may be considered for allotment of the same, in
accordance with the rules.                                             B

      15. We make it clear that this order is being passed in
the special facts of this case and should not be treated as a
precedent in future cases. The concerned authorities will be at
liberty to fill up the other three seats, which had been kept apart,   C
in accordance with the Rules.

      16. The appeals are disposed of accordingly. In the facts\
 of this case, the parties shall bear their ·own costs in t~e"
·appeals.                     ·
                                                                       D
D.G.                                       Appeals disposed of,