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This is a classic example where despite having succeeded in the proceedings before the High Court, the Appellants have not got the fruits of their 2 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 Kiran Bhai Mehta, opted for separate disciplines and are no longer interested in admission to the Super Speciality Courses concerned.

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                                      REPORTABLE

              IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NOS.7037-7038 OF 2011

      (Arising out of SLP(C)Nos.11320-11321 of 2011)

DR. PUNEET GULATI & ORS. ETC. ETC.   ... APPELLANTS  

                        Vs.

STATE OF KERALA & ORS. ETC. ETC.            ... RESPONDENTS

                         O R D E R

ALTAMAS KABIR, J.

1.     Leave granted.

2.     This is a classic example where despite having 

succeeded in the proceedings before the High Court, 

the   Appellants   have   not   got   the   fruits   of   their 

                                           2

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 Kiran Bhai Mehta, opted for separate 

disciplines   and   are   no   longer   interested   in 

admission          to         the         Super         Speciality         Courses 

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   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 Medical Colleges in Kerala and Doctors who had 

done   Rural   Service   in   Kerala,   would   be   given 

                               3

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. 

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 

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 in the written examination, questioned 

both   the   original   and   revised   terms   of   the 

different prospectus and challenged the preferences 

                                4

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 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, 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   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, 

                                5

as unconstitutional.

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 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.     

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 

                                              6

that   the   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   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. 

Accordingly,   despite   being   superior   in   merit,   the 

appellants   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 

                                7

prospectus   for   admission   to   the   Super   Speciality 

Courses,   the   High   Court   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   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   the   decision   of   the   Division 

Bench   on   the   question   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 

                                8

been kept apart in the relevant courses as per the 

direction   of   this   Court   for   the   Academic   Session 

2011-2012. 

9.     Mr.   S.   Gopakumaran   Nair,   learned   Senior 

Advocate,   who   appeared   for   Dr.   Cecil   Kunnappilly, 

who   was   the   2nd  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.

10.    Mr.   V.   Giri,   learned   Senior   Advocate,   and 

counsel appearing for the Medical Council of India, 

did not have much to add to the submissions made by 

Ms. Mathew and Mr. S. Gopakumaran Nair.

11.    Having   considered   the   judgment   of   the   learned 

Single   Judge   and   the   Division   Bench   and   the 

                                       9

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   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 course in some way.  

12.    By   an   interim   order   dated   20th  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 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 

                               10

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 

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,  did  not  sit  for  the  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.  

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 

                                     11

Surgery and had already been given admission in the 

Trivandrum            Government                 Medical                College. 

Accordingly,          Mr.         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. 

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, 

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 the appeals.        

                      12

                             ............................................................J.

                           (ALTAMAS KABIR)

                             ............................................................J.

                           (CYRIAC JOSEPH)

                            ...............................................................J.

                         (SURINDER SINGH NIJJAR)

New DelhiDated: 17.08.2011

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