DR. JEEVAK ALMASTversusUNION OF INDIA & ORS.

                        DR. JEEV AK ALMAST                                     A
                                     v.
                     UNION OF INDIA & . ORS.

                           AUGUST 12, 1988.

[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.]                                 B

      Professional Colleges-Admission to: Post Graduate Medical
Course-All India Entrance Examination-A.I.l.M.S. Bulletin of
Information clauses 11 and 15(g)-Validity of-Unfilled seats-Direc-
tions issued bv Court.  ·

      Constitution of India, 1950: Article 14"-Judicial determination
                                                                               c
not to be tested on the touch stone of this provision.

      In compliance with the decision of the Supreme Court in Dr.
Pradeep Jain etc. v. Union of India & Ors. etc., (1984] 3 SCR 942 and
on the basis of the scheme approved by the Court, respondent No. 2             D
held an All India Entrance Examination for filling up 25 per cent seats
in different Post· Graduate Medical Colleges in the States and Union
Territories and those run by public authorities. The scheme provided
that cut off.base should be SO per cent marks. Out of about 2100 seats,
only 500 could be filled.
                                                                               E
      In the Writ Petition filed before this Court, the petitioner, an
unsuccessful candidate at the aforesaid examination sought ( 1) a direc-
tion that clauses l1 and lS(g) of the Bulletin of Information, published
by respondent No. 2 in this regard were illegal, unconstitutional and
incompetent, (2) a writ of certiorari to quash the list of successful candi-
dates for admissfon within 25% reserved quota, and (3) a writ of man-          F
damus to the respondents to admit the petitioner and similarly placed
other candidates against the 1500 odd seats left out due to the arbitrary
decision/action of the respondents, contending that no seat should go
unfilled.

     Disposing of the Writ Petition and .a pending CMP in other dis-           G
posed of Writ Petitions,

      HELD: 1.1 It is well-settled that judicial determination is not to
be tested by the touchstone of Article 14 of the Constitution. [388B]

      In the instant case since the bulletin is in accordance with the         H
                                    385
     386         SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

A    scheme approved by this Court, and the examination has been held
     following the terms thereof, the petitioner is not entitled to ask for
     quashing a part of the bulletin and the list of selected candidates. There
     is no tenable challenge against the examination. IJ87H, 388A]

           1.2 Since in the very first year of implementing the scheme, a
B    stalemate has arisen, it is appropriate to give certain directions, which
     may in the facts and circumstances, be appropriate and adequate to
     meet the situation to the extent possible . .Sufficient number of qualified
     doctors are not available. Every step should, therefore, be taken to turn
     out as many doctors with Post Graduate qualification as possible. Since
     about 1600 seats have reverted to the States and medical colleges
c    located within them, and have to be filled up, it is in the interest of the
     parties that this should be done as quickly as possible so that the
     academic time-schedule may be stuck to. [388B-C, F, 389D I

          1.3 Respondent No. 2 is directed to supply to each State and/or
    Union Territory from where candidates !)ad appeared at the entrance
D test, candidate-wise particulars confined to such State. Once these
    particulars are available, the Selection Committee operating in the
    State and/or Union Territory or in the respective. medical colleges
    covered by the scheme, as the case may be, shall draw up a list of the
    remaining candidates seeking admission as against the 75 per cent of the
    seats and the candidates who had taken the All India Entrance examina-
E tion, but have not been found fit on the. basis of the marks secured in
    their respective selection tests or at the MBBS examination, in Stales
    where there is no such selection test relating 75 per cent seats. This shall
    be on the footing that marks in the respective selection tests or the test
    and the examination are at par and admission would be on the basis of
    merit. No doubt, the All India Selection test had been a stricter one, but
F it would not be possible for this Court now to direct what weightage is to
    be added on that score. Once the common list is drawn up on the basis of
  · performance, admission to remaining seats can be taken up. [389F-G I

           !The admissions already effected inclusive of seats in the reserved
     quota shall continue. But further admissions in respect of unfilled seats
G    as against the 25 per cent quota shall he· deferred now and again taken
     up after the list of eligible candidates is drawn up as per the time
     schedule now indicated.] [389H, 390B]

           Dr. Pradeep Jain etc. v. Union of India & Ors~etc., 11984] 3 SCR
     942, referred to.
H


                                                                                   ;
                         DR. JEEVAK v. U.0.1.                      387

      ORIGINAL JURISDICTION: Writ Petition No. 467 of I988.               A

      (Under Article 32 of the Constitution of India.)

     D.Nc Dwivedi, B.D. Aggarwala, O.P. Khadaria, Sa'rva Mitter.
Bagga, Mrs. S.K. Bagga, R.P. Srivastava, Ms. A. Subhashini, R_.K.
Mehta. Ms. Sushma Manchanda and Ms. Suman Rastogi for the                 B
appearing parties.

      The following Order of the Court was delivered:

                              ORDER

      This petition under Article 32 of the Constitution arises out of
                                                                          c
implementation of the decision rendered by this Court in Dr. Pradeep
Jain's case I i984] 3 SCR 942.

       The petitioner is an unsuccessful candidate for admission to the
Post Graduate Medical courses in the All India Entrance Examination       D
held by the All India Institute of Medical Sciences, respondent No. 2.
In this application he has asked for a declaration that clauses 11 and
 lj(g) of the Bulletin of Information published by respondent No. 2 in
regard to the Post Graduate Medical courses are illegal, unconstitu-
tional and incompetent. He has also asked for a writ of certiorari to
quash the list of successful candidates for admission in the Post         E
Graduate Medical colleges within the 25 per cent reserved quota and
for a writ of mandamus to the respondents to admit the petitioner and
similarly- placed other candidates against the 1500 and odd seats left
cut due to the arbitrary decision/action of the respondents. In Dr.
 Pradeep Jain's case (supra) this Court decided that admission to 25
per cent of the seats in the different Post Graduate courses in the       F
medital colleges located in the States and Union Territories as also
those run by public authorities should be filled up by an Ail India
Entrance examination. Under-the Court's directions made from'tin1e
to time, a' scheme was evolved by the Union of India in coordination
with the Indian Medical Council and the State Governments, uni-
versities and medical institutions. This Court approved the scheme and    G
directed that the same should be implemented from the Academic
Year 1988-89 by holding an All India Entrance Examination by the
respondenJ No. 2. The scheme contained the provision that the cut-off
base for selection for admission shall be 50 per cent marks. The bulle-
tin prepared by the respondent No. 2 is on the basis of the scheme.
Since the bulletin is in accordance with the scheme approved by this      H
    388         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

    Court, and the examination has been held following the terms thereof
A   the petitioner is not entitled to the first two reliefs claimed by him,
    namely, quashing of a part of the bulletin and quashing of the list of
    selected candidates. We would like to make it clear that there is no
    tenable challenge against the examination. It is well-settled that judi-
    cial determination is not to be tested by the touch stone of Article 14 of
B   the Constitution.

          Since the matter has come before this Court and from the facts
    disclosed in the petition we find that in the very first year of imple-
    menting the scheme, a stalemate has arisen, we think it appropriate to       •
    g.ive certain directions which may, in the facts and circumstances, be
    appropriate and adequate to meet the situation to the extent possible.

         We gather that 25 per cent reservation as envisaged by the
  scheme would mean about 2050 to 2100 seats and these were intended
  to be filled up by the selection tests to be conducted by the respondent
  No. 2. It is said that about 30,000 candidates appeared at the selection
D test. but the respondent No. 2 found only 500 students fit, strictly in
  terms of the scheme, for being admitted as against the 25 per cent
  reservation. As a result of this about 1600 seats could not be filled up
  in terms of the scheme.

          The question for consideration is as to whether these unfilled
E   seats should revert back to the respective States and/or institutions or
    what other method should be adopted to fill up the vacancies. It has
    been contended on behalf of the petitioner, and there is total unani-
    mity amongst all the parties that no seat should go unfilled. It is well-
    known that our country does not have sufficient number of qualified
    doctors and every step should, therefore, be taken to turn out as many
F   doctors with Post Graduate qualification as possible. The problem to
    be resolved, therefore, is as to what method should be adopted to fill
    up these unfilled reserved seats.

        We had given a direction to the Union of India to find out the
  exact position in regard to the reserved seats. Mr. Dwivedi for the
G respondent No. 1 has not been able to give us complete details and has
  placed a statement in regard to the few States and institutions. At the
  Bar it has been stated that the total number of seats in regard to this
  disclosure may not exceed 300. We do not think any useful purpose
  would be served by further adjourning the matter particularly when
  respondent No. I wants a few more weeks to collect the same. We
H cannot lose sight of the fact that a tight frame of time has been fixed by
                          DR. JEEVAK v. U,0.1.                        389

the previous order of this Comt in regard to admi~sion as also com-          A
mencement of studies. We have not the least intention to disturb that
schedule..

      It is appropriate at this stage to take note of the fact that one of
the medical colleges of Uttar Pradesh moved this Court in the month
of May, 1988, for a direction that the remain_der of the seats from out      B
of the 25 per cent reserved quota should revert back to the college to
be filled up by candidates who had applied for the remaining 75 per
cent of the seats and had not got admission. Mr. Dwivedi for the
Union of India has informed us that there has been some confusion as
that direction has been construed to be of general application by some
and in the case of others instructions have been issued to move this         c
Court to obtain similar orders:

      Now· that about 1600 seats have reverted to the States and the
medical colleges located within them, these seats have got to be filled
up. It is in the interest of the pariies that the same should be done as
quickly as possible so that the academic time-schedule may be stuck          D
to. We are of the view that it would be in the interest of everyone if the
respondent No. 2 is directed to supply to each State and/or Union
Territory from where candidates had appeared at the enterance test,
candidate-wise particulars confined to such State within 10 days from
now. Once the.se particulars are available the Selection Committee
operating in the State and/or Union Territory or in the respective           E
medical colleges covered by the scheme, as·the case may be, shall draw
up a list of the remaining candidates seeking admission as against the
75 per cent of the seats and the candidateswho had taken the All India
Entrance examination but have not been found fit on the basis of the
marks secured in their respective seleciibn tests and in the event of
there being no selection test in the States relating to the" 75 pei cent     F
quota then at the MBBS examination. This. shall be o_n the footing that
the marks in the respective tests or the test and the examination are at
par and adi:µission would be on the basis "of merit. There is no doubt
that the All India Selection test had been a stricter one. Now it would
not be possible for us to direct what weightage is to be. added on that
score. Once the common list is drawn up on the basis of performanc~,         G
admission to the remaining seats in the .Post Graduate courses" can be
taken up.

       We make it clear that by our Order we do.not propose to vacate
tlie admissions already effected up to today, that is, 12th August, 1988
inclusive in respect of the seats in the reserved quota. The colleges will   H
    390           SUPREME coumr REPORTS               [1988] Supp. 2 S.C.R.

A be closed for the next three days being Second Saturday, Sunday and
  the Independence Day and the possibility of further admission can
  only be on the 16th of August, 1988. Further admission in respect of
  unfilled seats as against the 25 per cent quota shall be deferred till the
  list of eligible candidates on the basis of what has been stated above is
  drawn up. Since we have allowed ten days' time to the respondent No.
B
  2 to supply the particulars, seven more days shall be allowed thereafter
  to the institutions including the State Government to finalise the lists
  and send out intimations to candidates quickly. In these circumstancks
  admissions may again be taken up three weeks after for the remaining
  seats and may be kept open for ten days. The Director General of
  Health Services will communicate this part of the order to every medi-
c cal college subject to the scheme as also the Governments telegraphi-
  cally today. A copy of this order shall be made available to Mr.
  Dwivedi forthwith. We reiterate that we have no intention to interfere
  with the scheme which has been approved except to the extent that the
  dates of admission and commencement of classes may have to be
D varied to give effect to the present order.

          We must take note of the situation that the concern which was
    shown by this Court while reserving 25 per cent of the total number of
    seats to be filled up on the basis of the All India Entrance examination
    has not been effectuated on account of only 500 students having been
    selected. We hope and trust that such a situation would not recur and a
E   more practical view shall be taken by those who are incharge of the
    matter. We are cognizant of the position that our direction might give
    dis-satisfaction to some candidates, but in the back-drop and the pre-
    sent situation perhaps no other arrangement more equitable than what
    we have indicated could be done. At any rate we declare that this is a
    final order and no application for varying or modifying the same would
F   be entertained by the Registry.

             The writ petition is disposed of with these directions but without
    costs.

          C.M.P. No. 19754of1988 is a miscellaneous application in Writ
G   Petition Nos. 348 to 352 of 1985 which have long been disposed of. The
    directions which we have given in the writ petition shall operate to the
    extent applicable to the facts of the case.

    N.P.V.                                               Petitions disposed of.