admission to the MBBS course in the medical colleges under Delhi University for the academic session 2011-2012.- In the result, we: i) hold that the Bulletin insofar as it reserves 30 seats in the MBBS course in LHMC for NGOI is not ultra vires the Constitution and in so far it exempts candidates to be admitted to these 30 seats from taking the DUMET is not ultra vires the MCI Regulations. ii) hold that the provisions of Regulation 5 of the MCI Regulations for selection for admission to the MBBS course solely on the basis of merit have to be followed by the beneficiary States/Union Territories/Ministries /Agencies while selecting the students who apply for the seats reserved or allocated for the concerned State/Union Territory/ Ministry/Agency. iii) hold that even if merit of the applicants may not have been determined strictly in accordance with Regulation 5 of the MCI Regulations by the beneficiary States/Union Territories/Ministries/Agencies while selecting some of the students for the seats reserved for NGOI for the academic session 2011-2012, we are not inclined to disturb their admissions in exercise of our powers under Article 142 of the Constitution. iv) direct that with effect from the academic year 2012-2013, no admission will be made to any of the seats reserved for NGOI in LHMC, MAMC and UCMS of any student who has failed in the DUMET. v) direct that for the academic year 2013-2014 onwards, the candidate applying for seats reserved for NGOI have to obtain the minimum marks in the All India National Eligibility-cum- Entrance Test for admission to the MBBS course as provided in the amended MCI Regulations and the admissions will be made on merit after calling for applicants through advertisement in the newspapers having wide circulation. vi) direct that the Central Government will make a review of the government and private medical colleges which have been established in the meanwhile in the States/Union Territories to which seats are being allocated under the quota for NGOI and if they find that additional intake capacity for the MBBS course has been created in these States/Union Territories, the Central Government will take a fresh decision on the number of seats in the MBBS course to be reserved for NGOI for these States with effect from the academic year 2013-2014. vii) direct that if there are vacant seats in the quota for NGOI in the LHMC and MAMC for the academic year 2011-2012, the petitioners will be given admission to these vacant seats on the basis of their merit in DUMET 2011-2012 during the academic year 2012-2013. 19. With the aforesaid directions, the appeals are disposed of. There shall be no order as to costs.

Reportable

 
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 6304-6305 OF 2012
(Arising out of SLP (C) Nos. 8408-8409 of 2012)

Bhawna Garg & Anr. … Appellants

Versus

University of Delhi & Ors. … Respondents

AND

CIVIL APPEAL No. 6306 OF 2012
(Arising out of SLP (C) No. 13194 of 2012)

Kopal Rohtagi …
Appellant
Versus

University of Delhi & Ors. … Respondents

 

 

 

J U D G M E N T
A. K. PATNAIK, J.
Leave granted.

2. These are appeals against the common judgment and order dated
23.12.2011 of the Division Bench of the High Court of Delhi in Writ
Petition (C) No.7103 of 2011 and Writ Petition (C) No.4299 of 2011
declining to grant relief to the appellants in the matter of admission
to the MBBS course in the medical colleges under Delhi University for
the academic session 2011-2012.

3. The facts very briefly are that the Delhi University issued a Bulletin
of Information for admissions to the Under-Graduate Degree Courses for
the academic session 2011-2012 (for short ‘the Bulletin’). Para 2 of
the Bulletin dealt with admissions to MBBS course. Para 2.1.1 of the
Bulletin stated that the university conducts the MBBS course in three
Medical Colleges, namely, Lady Hardinge Medical College (LHMC),
Maulana Azad Medical College (MAMC) and University College of Medical
Sciences (UCMS). Para 2.1.1 of the Bulletin further stated that only
female candidates were to be admitted in LHMC. Para 2.1.2 of the
Bulletin stated that candidates for 15% seats were to be selected
directly by the Directorate General of Health Sciences (DGHS) based on
the result of the examination conducted by the CBSE, New Delhi, as per
the directions of this Court. Para 2.1.3 of the Bulletin deals with
admissions to seats by Nominees of Government of India (NGOI) and it
states that candidates who wish to be considered for admission to this
category of seats need not appear in the Delhi University Medical and
Dental Entrance Test (DUMET) and they will correspond directly with
the authorities listed in Appendix-II to the Bulletin. Para 2.1.6 of
the Bulletin furnishes the statement of total number of seats in Under-
Graduate Courses for the session 2011-2012. The statement is
extracted hereunder:

|Name of |Seats to be filled in on |Seats to be |Seats to be |Total|
|the |the basis of DUMET |filled in by|filled in by |Seats|
|Medical | |DGHS |the Government| |
|College | | |of India | |
| | | |Nominees | |
|MBBS Course |
| |General |SC |ST |OBC |15% Quota |NGOI | |
|LHMC |55 |19 |10 |14 |22 |30 |150 |
|MAMC |113 |25 |12 |14 |30 |6 |200 |
|UCMS |66 |19 |9 |34 |22 |Nil |150 |
|Total |234 |63 |31 |62 |74 |36 |500 |

 

The aforesaid statement shows that 30 out of 150 seats in LHMC and 6 out of
200 seats in MAMC in the MBBS course are reserved for NGOI. The aforesaid
statement further shows that out of a total of 500 MBBS seats in the three
government colleges of the university, 36 seats are reserved for NGOI. The
Bulletin further provides that besides the 15% seats directly filled up by
the DGHS based on the examination conducted by the CBSE, New Delhi, and the
NGOI, all other candidates have to appear in the DUMET and will be admitted
to the MBBS course on the basis of their merit in the category in which
they have applied.

4. The appellants applied as female general category candidates and also
took and cleared the DUMET. However, on account of their lower rank
in the merit list of candidates who cleared the DUMET, the appellants
could not be admitted to any of the seats in the three government
medical colleges under the university. Aggrieved, the appellants
filed Writ Petition (C) No.7103 of 2011 and Writ Petition (C) No.4299
of 2011 before the High Court of Delhi praying for a direction to
quash the Bulletin insofar as it provides for filling up of 30 seats
out of the 150 seats in the MBBS course in LHMC by NGOI and praying
for a direction to the authorities to fill up these 30 MBBS seats
earmarked for the NGOI for the academic session 2011-2012 from the
general category candidates and the appellants be considered for such
admission to the 30 seats as general category candidates. Before the
High Court, the appellants contended that the reservation of as many
as 30 seats in the MBBS course in LHMC was violative of Article 14 of
the Constitution and that the procedure adopted by the Government of
India in nominating the candidates for the 30 seats without holding a
common entrance test for determination of their merit was contrary to
the Medical Council of India Regulations on Graduate Medical
Education, 1997 (for short ‘the MCI Regulations’).

5. In the impugned judgment and order, the High Court held that in Kumari
Chitra Ghosh & Anr. v. Union of India & Ors. [1969 (2) SCC 228] a
Constitution Bench of this Court has considered the challenge to
reservation of seats for certain categories of students on the ground
that it is violative of Article 14 of the Constitution and has held
the reservation to be constitutionally valid. The High Court further
held that even though a sea-change may have taken place since the
judgment was delivered by this Court in Kumari Chitra Ghosh (supra),
it is only for this Court to hold that the ratio of Kumari Chitra
Ghosh (supra) has become irrelevant. The High Court has also held
that as the nominations have already been made by the Government of
India to the 30 seats in LHMC in the MBBS course and the nominated
students have taken admission and are undergoing the course, it may
not be appropriate to disturb their admission. The High Court also
found that the appellant had filed the writ petitions in June, 2011
and writ petitions could not be decided by 30th September, 2011 which
was the last date within which admissions were to be made to the MBBS
course for the academic session 2011-2012 as per the directions of
this Court in Mridul Dhar (Minor) & Anr. v. Union of India & Ors.
[(2005) 2 SCC 65] and hence no relief could be granted to the
appellants after the 30th September, 2011.
6. Ms. Indu Malhotra, learned senior counsel for the appellants,
submitted that the Constitution Bench judgment of this Court in Kumari
Chitra Ghosh (supra) has lost its relevance inasmuch as the entire
procedure for medical admissions has undergone a sea-change during the
past four decades after the aforesaid judgment was rendered in 1969.
She submitted that the MCI Regulations and in particular Regulation 5
thereof mandates that the selection of students to medical colleges
shall be based solely on merit of the candidate and for determination
of merit the criteria laid down in Regulation 5 of the MCI Regulations
has to be adopted uniformly throughout the country. She submitted
that Regulation 5(2) of the MCI Regulations provides that in States
having more than one University/Board/Examining Body conducting the
qualifying examination, a competitive entrance examination should be
held so as to achieve a uniform evaluation and Regulation 5(4) of the
MCI Regulations provides that a competitive entrance examination is
absolutely necessary in the cases of institutions of all-India
character. She vehemently argued that there are no exceptions
provided in Regulation 5 to holding of a competitive entrance
examination and even candidates belonging to the reserved categories
including the physically handicapped with 70% disability are required
to appear in the competitive entrance examination to secure admission
to the medical courses. She argued that the Bulletin, therefore,
could not have exempted the NGOI candidates from appearing in the
DUMET and in fact the Bulletin by so exempting the NGOI candidates
from appearing in the DUMET has clearly violated Regulation 5 of the
MCI Regulations and on this ground, Para 2.1.3 of the Bulletin
providing that candidates who wish to be considered for admission in
the category of NGOI need not appear in the DUMET is ultra vires
Regulation 5 of the MCI Regulations. She submitted that after the
Constitution Bench judgment of this Court in Kumari Chitra Ghosh
(supra), the Constitution Bench of this Court in T.M.A. Pai Foundation
& Ors. v. State of Karnataka & Ors. [(2002) 8 SCC 481] has also
emphasized the need for admissions to professional courses solely on
the basis of merit even in private unaided colleges that enjoy maximum
autonomy in choosing their candidates for admissions under their
fundamental right guaranteed by Article 19(1)(g) of the Constitution.
She submitted that in T.M.A. Pai Foundation (supra), this Court has
also held that the merit of the candidates seeking admission may be
determined either through a common entrance test conducted by the
University or the Government, followed by counselling. She submitted
that LHMC is not a private medical college but a government college
and enjoyed much lesser autonomy in matters of admission and
admissions to all the 150 seats in LHMC including the 30 seats
reserved for NGOI should have only been made on the basis of merit as
determined in a competitive entrance examination or a common entrance
test. She submitted that contrary to this law which now holds the
field, the admission to the seats reserved for the NGOI has been given
during the academic session 2011-2012 to four candidates who have even
failed in the DUMET examination. She cited a recent judgment of this
Court in Asha vs. Pt. B.D. Sharma University of Health Sciences & Ors.
(Civil Appeal No.5055 of 2012) to the effect that the criteria for
selection for admission into MBBS course has to be on merit alone.

7. Ms. Malhotra next submitted that the appellants are not claiming
admissions under the quota reserved for NGOI but they are claiming
admission to seats in general pool of candidates on the basis of their
merit in the competitive examination. In this context, she submitted
that the quota reserved for NGOI has been taken out from the seats
earmarked for the common pool of seats and if admissions to the NGOI
quota are held to be illegal then these seats have to be filled up on
the basis of their merit amongst the general category candidates. She
further submitted that the quota for NGOI is not a reservation under
Article 15 of the Constitution and yet as many as 30 out of 150 seats
in LHMC have been reserved for the NGOI and this quota is as high as
20% of the total seats. According to her, such reservation when
considered along with the reservation of seats in favour of SC/ST/OBC
candidates exceeds the ceiling of 50% for all reserved category fixed
by the Constitution Bench of this Court in Indira Sawhney v. Union of
India [(1992) Suppl.3 SCC 217] and is unconstitutional. She also
relied on the decisions of this Court in Post Graduate Institute of
Medical Education and Research v. Faculty Association [(1998) 4 SCC
1], Union of India v. Ramesh Ram & Ors. [(2010) 7 SCC 234] and Indian
Medical Association vs. Union of India [(2011) 7 SCC 179].

8. In reply, Mr. Siddharth Luthra, Additional Solicitor General appearing
for Union of India, submitted that the Government of India, Ministry
of Health and Family Welfare, has issued guidelines for selection of
candidates to be nominated for the quota of seats reserved for NGOI
and the guidelines would show that the selection is to be based on
academic merit of the candidates. These guidelines are contained in
the letter dated 09.12.1986 of the Joint Secretary, Ministry of Health
and Family Welfare, Government of India, to all the States/Union
Territories. He further submitted relying on paragraph 4 of the
affidavit of the Union of India filed on 16.07.2012 that the purpose
of allotting the seats under the Central Pool Scheme for NGOI is that
students from States and Union Territories where there are no adequate
medical colleges need support for medical education and wards of
Defence/Paramilitary Forces who have sacrificed their lives or have
been permanently disabled in war/terrorism also need similar support
for medical education. He further submitted that the Central Pool
Scheme is run on the basis of voluntary contributions from the
States/Union Territories/Ministries/ Agencies for the students
nominated by them. He submitted that these seats are only allocated
to the beneficiary States/Union Territories/Ministries/Agencies and
the allocation letters sent to the States/Union
Territories/Ministries/Agencies like the Defence Ministry, MHA, MEA
and HRD Ministries contain the guidelines indicating the eligibility
and the method of selection to be followed at the time of selection of
candidates against the Central Pool Schemes. He explained that the
beneficiary States/Union Territories/Ministries/Agencies prepare a
list of eligible candidates on the basis of either the State Level
Entrance Test or on the basis of academic merit and conduct
counselling sessions for the available seats of the Central Pool and
after the list of candidates is finalized, the States/Union
Territories/Ministries/Agencies inform the successful candidates to
report to the medical college in question for admission. He submitted
that the Central Government, therefore, has actually no role in
preparation of merit list of eligible candidates and its role is
confined to only allocating the seats to the States/Union
Territories/Ministries/Agencies.

9. Mr. Luthra submitted that the issues raised by the appellants have
been considered by the Constitution Bench of this Court in Kumari
Chitra Ghosh (supra) but decided in favour of the Central Government.
He submitted that the Medical Council of India has amended the MCI
Regulations by the Regulation on Graduate Medical Education (Amendment
2012) and these amended Regulations will be applicable from the
academic year commencing from 2013-2014. He submitted that a reading
of these amendments to Regulation 5 of the MCI Regulations would show
that in order to be eligible for admission in MBBS course for a
particular year, it shall be necessary for a candidate to obtain
minimum marks in the National Eligibility-cum-Entrance Test to MBBS
course held for that academic year and such minimum marks would be 50%
for general candidates and 40% for SC/ST/OBC.

10. We have considered the submissions of the learned counsel for the
parties and we find that in Kumari Chitra Ghosh (supra) the facts were
that in LHMC 23 seats were reserved by the Central Government for
students of the following categories:
“(a) Residents of Delhi ……..

 

 
(b) (i) Sons/Daughters of Central
Government servants posted in Delhi at the time of
admission.

 
ii) Candidate whose father is dead and is wholly
dependent on brother/sister who is a Central
Government servant posted in Delhi at the time of
admission.

 
(c) Sons/Daughters of residents of Union Territories specified
below including displaced persons registered therein and sponsored
by their respective Administration of Territory:

 
(i)Himachal Pradesh; (ii) Tripura; (iii) Manipur; (iv) Naga
Hills; (v) N.E.F.A; (vi) Andaman.

 
(d) Sons/Daughters of Central Government servants posted in Indian
Missions abroad.

 

 

 

(e) Cultural Scholars.

 

 

 
(f) Colombo Plan Scholars.

 

 

 

(g) Thailand Scholars.

 

 

 
(h) Jammu and Kashmir State Scholars.”

 

A candidate seeking admission in any of the reserved seats must have
obtained a minimum of 55 per cent aggregate marks in the compulsory
subjects. This reservation of 23 seats was challenged before the High
Court of Delhi as inter-alia violative of Article 14 of the Constitution
and the nomination of the candidates to the reserved seats was also
challenged as contrary to the rules. The Delhi High Court rejected the
challenge and Kumari Chitra Ghosh carried the appeal to this Court. A
Constitution Bench of this Court held that the reservation of 23 seats by
the Central Government in favour of specific categories of candidates was
constitutionally valid. Paragraph 9 of the judgment of the Constitution
Bench of this Court in Kumari Chitra Ghosh (supra) is quoted herein below:

 

“9. It is the Central Government which bears the financial burden
of running the medical college. It is for it to lay down the
criteria for eligibility. From the very nature of things it is not
possible to throw the admission open to students from all over the
country. The Government cannot be denied the right to decide from
what sources the admission will be made. That essentially is a
question of policy and depends inter-alia on an overall assessment
and survey of the requirements of residents of particular
territories and other categories of persons for whom it is
necessary to provide facilities for medical education. If the
sources are properly classified whether on territorial,
geographical or other reasonable basis it is not for the courts to
interfere with the manner and method of making the classification.”

 

 
Thus, this Court has held in Kumari Chitra Ghosh (supra) that it is for the
Central Government which bears the financial burden of running the medical
college to take a policy decision on the basis of over all assessment and
survey of requirements of residents of particular territories and other
categories of persons and the sources from which admissions are to be made
in the medical college and so long as the sources are properly classified
whether on territorial, geographical or other reasonable basis, the Court
will not strike down the policy decision of the Central Government on the
ground that it is violative of Article 14 of the Constitution.

11. We may now examine the policy decision of the Central Government in
reserving the seats in favour of the NGOI. In the affidavit filed on
behalf of the Union of India dated 16.07.2012, it is stated that there are
a number of States or the Union Territories which do not have
medical/dental colleges of their own and the majority of such States are in
the North-Eastern Region and in order to meet the requirements of these
States/Union Territories and for some Central Government
Ministries/Agencies and to fulfill some national and international
obligations, a Central pool of MBBS/BDS seats is being maintained by the
Ministry of Health and Family Welfare. Along with the affidavit, a list of
beneficiary States/Union Territories/Ministries/Agencies and the
distribution of seats of the Central Pool for the academic year 2011-2012
to the beneficiary Sates/Union Territories/Ministries/Agencies has also
been furnished, which is extracted hereinbelow:
|S.No. |Beneficiary States/UT/Agency |2011-12 |
| | |MBBS |BDS |
|1. |Tripura |7 |2 |
|2. |Manipur |24 |2 |
|3. |Mizoram |27 |2 |
|4. |Meghalaya |22 |2 |
|5. |Sikkim |8 |2 |
|6. |Arunachal Pradesh |26 |2 |
|7. |Nagaland |24 |2 |
|8. |Lakshadweep |13 |2 |
|9. |A & N Islands |18 |2 |
|10. |Daman & Diu |7 |2 |
|11. |Dadra & Nagar Haveli |8 |2 |
|12. |J& K |4 |- |
|13. |Ministry of Defence |25 |2 |
|14. |Cabinet Secretariat (For SSF, |5 |1 |
| |RAW, ARC Dte.) | | |
|15. |Ministry of Home Affairs (for |7 |2 |
| |BSF, CRPF, ITBP, CISF, Assam | | |
| |Rifles, SSB Etc.) | | |
|16. |Ministry of External Affairs |4 | |
| |For Indian Mission Staff posted| |1 |
| |abroad. |26 | |
| |For Self financing foreign | | |
| |students | | |
|17. |Ministry of HRD (for Tibetan |1 |- |
| |Refugees) | | |
|18. |Indian Council for Child |2 |- |
| |Welfare (for National Bravery | | |
| |Award Winners) | | |
|19. |Ministry of Home Affairs (Civil|2 |- |
| |Terrorist Victims) | | |
| |Total: |260 |28 |
”

The Central Government has, therefore, reserved 260 seats in the MBBS
course for the Central Pool and has classified the sources from which
admissions were to be made to these 260 seats on geographical and other
basis. It has not been shown by the appellants that the classification of
the sources from which admissions are to be made has no rational nexus with
the objects sought to be achieved by the policy of the Central Government.
Hence, the validity and constitutionality of the policy of the Central
Government to reserve some seats on geographical and some other rational
basis cannot be questioned. However, reservation of as many as 260 seats
may not be justifiable in the changed circumstances discussed hereinafter
in this judgment.

12. In fact, the main contention of the appellants is that the policy of
the Central Government to reserve seats in favour of the NGOI is in breach
of the principle of selection solely on the basis of merit as laid down by
the Constitution Bench of this Court in T.M.A. Pai Foundation (supra) and
as provided in Regulation 5 of the MCI Regulations. It has, however, been
held by the Constitution Bench of this Court in Kumari Chitra Ghosh (supra)
that where some seats are reserved to be filled up only from properly
classified sources, the selection on the basis of merit has to be confined
to the sources from which the seats are to be filled up. Relevant extract
from Paragraph 10 of the judgment of this Court in Kumari Chitra Ghosh
(supra) is quoted hereunder:
“As noticed before the sources from which students have to be drawn
are primarily- determined by the authorities who maintain and run
the institution, e.g, the Central Government in the present case.
In Minor P. Rajendran v. State of Madras [AIR (1968) SC 1012] it
has been stated that the object of selection for admission is to
secure the best possible material. This can surely be achieved by
making proper rules in the matter of selection but there can be no
doubt that such selection has to be confined to the sources that
are intended to supply the material.”
[Emphasis supplied]

Accordingly, the seats which are reserved for a particular source, i.e.,
the beneficiary State/Union Territory/Ministry/Agency are to be filled up
by selection on the basis of merit of candidates who have applied as
candidates of that particular source, i.e., that beneficiary State/Union
Territory/Ministry/Agency. Thus, these candidates who constitute separate
sources from which admissions are to be made to the seats allocated to the
sources are not required to take the DUMET. They must go through the
selection on the basis of merit as laid down in T.M.A. Pai Foundation
(supra) and as provided in Regulation 5 of the MCI Regulations but such
selection has to be confined to the candidates of the respective sources.
13. In Annexure – R/3 to the affidavit filed on behalf of the Union of
India filed on 16.07.2012, the particulars of the candidates who have
been nominated to the seats allocated to the beneficiary States/Union
Territories/Ministries/Agencies have been given. It has been stated in
Annexure – R/3 that for the 26 seats allocated to the State of Arunachal
Pradesh, the candidates were nominated on the basis of Joint Entrance
Examination held by the State Government; to the 24 seats allocated to
the State of Nagaland, the candidates have been nominated on the basis
of Joint Entrance Examination conducted by the State Government; to the
27 seats allocated to the State of Mizoram, the candidates have been
nominated on the basis of the State Technical Entrance Examination
conducted by the State Government; to the 22 seats allocated to the
State of Meghalaya, the candidates have been nominated on the basis of
academic merit in 10+2; to the 8 seats allocated to the State of
Sikkim, the candidates have been nominated on the basis of common
entrance examination conducted by the State Government; to the 7 seats
allocated to the State of Tripura, the candidates have been nominated on
the basis of Common Entrance Examination conducted by the State
Government; to the 24 seats allocated to the State of Manipur, the
candidates have been nominated on the basis of the Common Entrance
Examination conducted by the State Government; to the 13 seats
allocated to the Union Territory of Lakshadweep, the candidates have
been nominated on the basis of Medical Entrance Examination conducted by
the Union Territory Government; to the 18 seats allocated to the Union
Territory of Andaman and Nicobar Islands, the candidates have been
nominated on the basis of marks obtained in 10th (20% weightage) and
12th (80% weightage): to the 8 seats allocated to the Union Territory of
Dadar and Nagar Haveli, the candidates have been nominated on the basis
of percentage of marks obtained in 10+2; to the 7 seats allocated to
the Union Territory of Daman & Diu, candidates have been nominated on
the basis of the percentage of marks obtained in 10+2; to the 4 seats
allocated to the State of J & K, the candidates have been nominated on
the basis of Professional Entrance Examination conducted by the State
Government; to the 25 seats allocated to the Ministry of Defence, the
candidates have been nominated on the basis of marks obtained in the
10th (20% weightage) and 12th (80% weightage); to the 5 seats allocated
to the Cabinet Secretariat, candidates have been nominated on the basis
of marks obtained in 10th (20% weightage) and 12th (80% weightage); to
the 7 seats allocated to the Ministry of Home Affairs, candidates have
been nominated on the basis of marks obtained in 10th (20% weightage)
and 12th (80% weightage); to the 4 seats allocated to the Ministry of
External Affairs (Mission Staff), candidates have been nominated on the
basis of marks obtained in 10+2; to the 26 seats allocated to the
Ministry of External Affairs (Foreigners), candidates have been
nominated on the basis of marks obtained in 10+2; to the one seat
allocated to the Central Tibetan Administration, candidates have been
nominated on the basis of marks obtained in 10+2; to the two seats
allocated to the Indian Council for Child Welfare, candidates have been
nominated on the basis of marks obtained in 10+2 and to the two seats
allocated to the Ministry of Home Affairs, candidates have been
nominated on the basis of marks obtained in 10+2.
14. The selection of candidates for the seats reserved for NGOI thus has
been done either on the basis of marks in the Joint Entrance Examination or
marks in the 10+2 examinations. Regulation 5 of the MCI Regulations
provides for determining the merit on the basis of marks obtained in
Physics, Chemistry, Biology and English in the qualifying examination where
one University/Board/Examining Body conducts the qualifying examination or
on the basis of a competitive entrance examination where more than one
University/Board/ Examining Body conducts the qualifying examination.
Unless a candidate who had applied to any of the allocated seats and who
had not been selected for nomination comes to Court and places materials
before the Court to show that the selection has not been made in accordance
with Regulation 5 of the MCI Regulations or that his merit has been by-
passed while making the selection, the Court cannot disturb the selection.
In this case, the candidates who had applied for the seats allocated to the
beneficiary States/Union Territories/Ministries/Agencies have not
approached the Court with their grievance that their merit has been
bypassed or that the selection has not been made in accordance with
Regulation 5 of the MCI Regulations. Instead the appellants who had not
applied for the 30 seats reserved in LHMC for the NGOI have come before
this Court with their grievance that they ought to have been selected and
admitted to some of those 30 seats. The appellants, who have not applied
for the 30 seats reserved for the NGOI, could not challenge the selection
of the candidates to the 30 seats reserved for the NGOI on the ground that
merit as provided in Regulation 5 of the MCI Regulations or as laid down in
T.M.A. Pai Foundation has not been considered while making selection for
nomination of these reserved seats. In taking this view, we are supported
by the judgment of the Constitution Bench of this Court in Kumari Chitra
Ghosh (supra), wherein it has been observed:
“…….It seems to us that the appellants do not have any right to
challenge the nominations made by the Central Government. They do
not compete for the reserved seats and have no locus standi in the
matter of nomination to such seats. …”

Hence, even if some of the students may have been selected for admission to
the seats reserved for NGOI not on merit as determined strictly in
accordance with Regulation 5 of the MCI Regulations, we are not inclined to
disturb their admissions in exercise of our power under Article 142 of the
Constitution. However, if there are vacant seats in the two government
medical colleges, namely, LHMC or MAMC, for the academic year 2011-2012 out
of the quota for NGOI, then the petitioners should be given admission to
these vacant seats on the basis of their merit in the DUMET 2011-2012
during the academic year 2012-2013.
15. The appellants, however, have contended that 4 candidates, who have
been given admission in the seats reserved for NGOI in LHMC and MAMC during
the academic year 2011-2012, have even failed in the DUMET and to grant
admission to such failed candidates is making a mockery of the entire
system of medical admissions. As we have already held, the candidates who
have applied for the quota for the seats reserved for NGOI constitute
separate sources from which admissions are to be made and the selection on
the basis of merit is to be confined to each separate source from which the
admissions are to be made and they are not required to take the DUMET.
Hence, even if they have failed in DUMET, they are still entitled to be
admitted to the seats reserved for NGOI, if they are selected on the basis
of merit from amongst all the candidates who have applied from the
aforesaid separate sources for admission. Nonetheless, if the candidates
who have failed in the DUMET are admitted through a separate source of
admission, as in the present case, this may result in lot of heart burn
amongst the students who have cleared the DUMET but have not got the
admission to a seat in the MBBS course on account of their lower rank in
the merit list. Hence, in future the Delhi University must stipulate in
the Bulletin and the Government of India must issue instructions that
candidates who opt to take the DUMET but do not qualify will not be
eligible for admission to the quota reserved for NGOI. This anomaly,
however, has been addressed by the MCI by making amendments to the MCI
Regulations and by providing therein that from the academic year 2013-2014
every candidate seeking admission to the MBBS course must obtain a minimum
marks of 50% in the National Eligibility-cum-Entrance Test in the MBBS
course if he is a general category candidate and must secure a minimum
marks of 40% in the National Eligibility-cum-Entrance Test if he is a
candidate belonging to Scheduled Castes, Scheduled Tribes or Other Backward
Classes. From the academic year 2013-2014, therefore, NGOI applying for
the reserved seats will have to secure the aforesaid minimum marks in the
National Eligibility-cum-Entrance Test for MBBS course.

16. We may now deal with the contention of the appellants that the
reservations of seats for NGOI in LHMC is excessive and when taken
together with the quota of seats for SC, ST, OBC and 15% of all-India
even exceeds the 50% ceiling of reservation fixed by this Court. We
have perused the decisions in Indira Sawhney v. Union of India, Post
Graduate Institute of Medical Education and Research v. Faculty
Association and Union of India v. Ramesh Ram & Ors. (supra) cited by
Ms. Malhotra and we find that the aforesaid decisions do not relate to
reservations of seats for admission in medical colleges or other
educational institutions, but they relate to reservations of posts in
favour of SC, ST and Other Backward Classes in public services. We have
also perused the decision of this Court in Indian Medical Association
vs. Union of India (supra) cited by Ms. Malhotra and we find that the
aforesaid decision holds that in the case of non-minority private
unaided professional institutions when the candidates are to be selected
from the source of general pool, selection has to be based on inter se
rank of students, who have qualified and applied or opted to choose to
be admitted to such non-minority private unaided professional
institutions, whereas in the case of minority educational institutions
the source can be delimited to the particular minority the institution
belongs to. The aforesaid decision in the case of Indian Medical
Association vs. Union of India (supra), therefore, has no application to
the facts of this case as LHMC is not a private unaided medical college.
Instead, it is a college of the Central Government. In any case, the
total number of seats in MBBS course in the LHMC is 150 out of which 55
seats are filled up from general candidates on the basis of their inter
se merit in DUMET and 22 more seats are filled up by candidates on the
basis of their inter se rank in the merit list pursuant to an all-India
examination conducted by the CBSE. Moreover, in para 13 of the
affidavit filed on behalf of the Union of India on 16.07.2010, it is
stated that LHMC had earlier an overall intake of 150 students which has
been increased to 200 students from the academic year 2011-2012 and
despite the increase of 50 seats, the number of seats for NGOI for the
academic year 2011-2012 was fixed at 30. It is further stated in para
13 of the aforesaid affidavit that the seats reserved for NGOI in LHMC
has been reduced to 20 during the academic year 2012-2013, to 17 during
the academic year 2013-2014 and to 15 for the academic year 2014-2015,
as it will be clear from the letter dated 25.04.2012 of the Union of
India to LHMC. It is also stated in para 13 of the aforesaid affidavit
that while LHMC is a Central Government institution, UCMS and MAMC are
institutions controlled by the Government of NCT Delhi and the
Government of India cannot demand surrender of seats towards Central
Pool and further LHMC is the only college which specializes in medical
education for the girl students and the Government wants to propagate
medical education among the girls, particularly in the North-Eastern
region. Considering the aforesaid steps taken by the Government of
India to reduce the number of seats in phases from 30 to 15 for NGOI in
LHMC, we think that the grievance that there has been excessive
reservation for NGOI in LHMC, if any, has been taken care of. That
apart, for students of Delhi, UCMS and MAMC are also other institutions
where MBBS course can be pursued by the general candidates including
general female candidates and the total number of seats in these
institutions are 200 and 150 respectively out of which only 6 are
reserved for NGOI.

17. We, however, find that in para 31 of the impugned judgment, the High
Court has held that even if there was a justification as offered by the
Government of India that many States/Union Territories did not have
medical institutions of their own, particularly in North-Easter States,
there has been an overall economic development in the country and a
number of State-funded and private medical and other institutions have
been established in the meanwhile in the country and, therefore, a re-
look by the Government of India at the extent of the seats reserved for
the NGOI was necessary. We agree with this view of the High Court in
the impugned judgment and we are of the considered opinion that the
Central Government should review and find out the number of seats in
MBBS course available in the State-funded and the private medical
colleges in the States/Union Territories for which seats are being
allocated from the quota for NGOI and decide afresh as to how many seats
should be allocated to these States/Union Territories.

18. In the result, we:

i) hold that the Bulletin insofar as it reserves 30 seats in the
MBBS course in LHMC for NGOI is not ultra vires the
Constitution and in so far it exempts candidates to be admitted
to these 30 seats from taking the DUMET is not ultra vires the
MCI Regulations.
ii) hold that the provisions of Regulation 5 of the MCI Regulations
for selection for admission to the MBBS course solely on the
basis of merit have to be followed by the beneficiary
States/Union Territories/Ministries /Agencies while selecting
the students who apply for the seats reserved or allocated for
the concerned State/Union Territory/ Ministry/Agency.
iii) hold that even if merit of the applicants may not have been
determined strictly in accordance with Regulation 5 of the MCI
Regulations by the beneficiary States/Union
Territories/Ministries/Agencies while selecting some of the
students for the seats reserved for NGOI for the academic
session 2011-2012, we are not inclined to disturb their
admissions in exercise of our powers under Article 142 of the
Constitution.
iv) direct that with effect from the academic year 2012-2013, no
admission will be made to any of the seats reserved for NGOI in
LHMC, MAMC and UCMS of any student who has failed in the DUMET.
v) direct that for the academic year 2013-2014 onwards, the
candidate applying for seats reserved for NGOI have to obtain
the minimum marks in the All India National Eligibility-cum-
Entrance Test for admission to the MBBS course as provided in
the amended MCI Regulations and the admissions will be made on
merit after calling for applicants through advertisement in the
newspapers having wide circulation.
vi) direct that the Central Government will make a review of the
government and private medical colleges which have been
established in the meanwhile in the States/Union Territories to
which seats are being allocated under the quota for NGOI and if
they find that additional intake capacity for the MBBS course
has been created in these States/Union Territories, the Central
Government will take a fresh decision on the number of seats in
the MBBS course to be reserved for NGOI for these States with
effect from the academic year 2013-2014.

vii) direct that if there are vacant seats in the quota for NGOI
in the LHMC and MAMC for the academic year 2011-2012, the
petitioners will be given admission to these vacant seats on
the basis of their merit in DUMET 2011-2012 during the academic
year 2012-2013.

19. With the aforesaid directions, the appeals are disposed of. There
shall be no order as to costs.
.……………………….J.
(A. K.
Patnaik)

 
………………………..J.
New Delhi, (Swatanter Kumar)
September 05, 2012.
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