Dr. S. Gomathy vs State of Kerala and Others

P. Shanmugam, J.—Both the Original Petitions are filed challenging the Government Order (Ext. P2 in O.P. No. 4532/96, and Ext. P3 in O.P. No. 4584/96) amending the prospectus for admission to the Post Graduate Course in superspeciality, 1995.

The Director of Medical Education, Government of Kerala, issued a notification on 13-11-1995 for the admission to Post Graduate Course in super speciality in the Medical Colleges in Kerala. The prospectus for the said course was also issued in Nov. 1995. As per this prospectus there are 10 courses with 39 seats in the three Medical Colleges of the State. The eligibility for admission is that the candidates should have passed MBBS, and appropriate Post Graduate Degree (M.D/M.S.). The method of selection is by an entrance examination consisting of two parts each containing objective type questions. In pursuance to this prospectus applications were invited and entrance examinations were held on 13th and 14th January, 1996. The petitioners as well as members of the 3rd respondent association applied and appeared for the entrance examination. The results of the examination was published on 25-1-1996. The petitioners in both these O.Ps. were in the select list for D.M. Nephrology and M.Ch. Genito Urinary Surgery respectively. While the petitioners were awaiting to join the course, the Government passed the impugned order amending the prospectus in exercise of the power conferred on them under Clause XII of the prospectus issued earlier. As per this amended prospectus, Government reserved certain seats for Lecturers/Assistant Professors in the concerned specialities for which selection would be made on the basis of seniority in service. The said Government Order is now under challenge.

Learned counsel appearing on behalf of the petitioners M/s. C.S. Rajan and K.R.B. Kaimal submitted that the rights of the petitioners have accrued by virtue of the selection to the course and the same cannot be taken away by a subsequent amendment. The members of the 3rd respondent have applied and appeared for written test and failed in the selection and after the selection having been finalised they are not entitled to seek for a reversal of the Government Order to re-open the selection. The selection has to be based on the conditions stipulated in the notification and in the prospectus which cannot be altered after selection process having completed, retrospectively. The Government having taken up a clear stand to the effect that they are bound by the Supreme Court judgments in reference to super speciality cannot go back in disobedience to the decision of the Supreme Court and their earlier stand. The Government, according to them, have passed an order behind their back without affording an opportunity to the petitioners and total disregard and violation of the principles of a natural justice. They also submit that there is no right in favour of the 3rd respondent to seek for a reservation.

Learned counsel appearing on behalf of the 3rd respondent submits that the Government has followed the decision of this Court in O.P. No. 4465 of 1991 which interpreted the Supreme Court decision to the effect that reservation in superspeciality is not barred. According to him, unless reservation is made in favour of the Tutors/ Assistant Professors, the public interest would suffer. Learned counsel took me through the decision in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, at length and also the decision in O.P. No. 4465 of 1991 and submits that what the Government has done is only the implementation of the directions issued in O.P, No. 4465 of 1991. He submitted that learned single Judge in O.P. No. 4465/91 and Division Bench in W.A. No. 279 of 1996 have directed the Government to dispose of the 3rd respondent''s representation. The Government is entitled to consider and pass appropriate orders and they have got power to amend and modify the prospectus retrospectively. The 3rd respondent has filed a counter.

Learned Government Pleader appearing on behalf of the respondents 1 and 2 submitted that it is true that they have implemented the directions of the Supreme Court in the decisions reported in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, and Fazal Ghafoor Vs. Union of India (UOI) and Others, and it is further true to say that the O.P. (O.P. No. 1430/96) filed by the 3rd respondent was not maintainable and as against the interim order they have filed an appeal before the Division Bench taking up the same stand. But in view of the directions of the Court to consider the representation of the 3rd respondent, the same was considered and revised order was issued. On behalf of the 1st respondent a counter affidavit is filed. The sum and substance of the counter affidavit is that the decision of this Court in O.P. No. 4465 of 1991 was not brought to the notice of the Prospectus Finalisation Committee and that after "a straight reading of Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, ), reservation was sought to be made. The counter also admits that they invoked the powers vested with Government under Clause XII of the prospectus, 1995, in G.O. (Rt.) No47/96/H and FWD. dated 28-2-1996. The learned Government Pleader produced before me that Government Order, G.O. (Rt) No. 470/96/H and FWD, dated 28-2-1996. Two main issues arise for consideration:

(i) Whether the amendment to the prospectus changing the conditions of admission retrospectively is proper?

(ii) Whether reservation in superspeciality courses is permissible?

Following dates are relevant for the purpose of considering the first point:

(a) 30-11-1995 Notification for admission to post graduate courses in super-speciality and prospectus.

(b) 13-1-1996 & 14-1-1996 Entrance examination for the said course.

(c) 25-1-1996 Publication of the selection list.

(d) 28-2-1996 Government Order modifying the prospectus by reserving seats for the posts.

In the notification issued by the Government as well as in the prospectus issued for the said course the selection was based on entrance examination and merit. There was no reservation for any category including Lecturers under Medical Educational Service. It has been well settled by series of decisions that qualification and eligibility conditions prescribed in the prospectus has to be adhered to. The admission should be based on the conditions as set out in the prospectus. Any deviation from the norms set out would be violative of Article 14 and contrary.

In Gurdeep Singh Vs. State of Jammu and Kashmir and others, the Supreme Court held that change of eligibility criteria after conclusion of selection process is illegal. In that case at the relevant time while inviting applications for admission to medical courses six seats were reserved for candidates excelling in certain categories of sports. "Mountaineering" was not one among the fields eligible for the reservation. The Supreme Court held that the real question was not that mountaineering can be approved as a sporting activity for the purpose of reservation. But the question was whether such a sport not having been included in the list of approved sports at the cut-off date when the applications were invited and on the basis of which candidates responded, could not later be introduced to provide eligibility retrospectively. The Supreme Court held that having regard to the stage at which and the manner in which the eligibility criteria was modifiied, the whole exercise was for the benefit of the candidate who was selected. From the facts and circumstances of the case the Supreme Court held that the conclusion becomes irresistible that the whole exercise was geared up only for achieving the ulterior objective of accommodating the 6th respondent therein.

In Dr. Vinay Rampal Vs. State of Jammu and Kashmir and Others, the Supreme Court held that the selection for admission was to be made on the basis of minimum qualifications set out in the advertisement. It should provide the basis for selection and eligibility for admission of the petitioner has to be judged on that basis. In the said judgment it was found that it was never suggested at any point of time that in issuing the advertisement there was any error. If that be so the College Authority including Principal issuing advertisement and inviting applications for admission must be held bound by it unless shown otherwise. In Punjab Engineering College Chandigarh through its Principal Vs. Sanjay Gulati and Others, the Supreme Court held that the prospectus is a declaration and norms to govern the admission and are to be adhered to and not to be ignored and breached.

A Division Bench of the Bomay High Court in Madhuvanti Purushottam Thatte Vs. State of Maharashtra and Others, ) has held that selection has to be based on the conditions set out in the prospectus. A Division Bench of this Court in Sainulabdin v. State of Kerala ( 1995 (2) KLT 629) and a Division Bench in Miss. Romini Susan Kurian Vs. State of A.P. and others, have taken the view that candidates are bound by the conditions set out in the prospectus.

In pursuance to the notification the petitioners have applied and undertook the written examination and they were selected for the seats. Their rights have accrued and crystallised by the completion of the selection process. They are legitimately entitled to expect to undergo the course based on their selection. After all these exercises the Government has invoked Clause XII of the prospectus for the purpose of modifying the prospectus. Clause XII of the prospectus reads as follows:

"Notwithstanding anything contained in the prospectus, the Government may at any time on their own accord or otherwise, revise to amend any order passed by the subordinate authority."

This clause enables the Government to revise or amend orders passed by the subordinate authority. By no stretch of imagination this could be construed as enabling the State Government to amend the prospectus itself, which was issued with the approval of the Government. In the prospectus it is clearly stated that prospectus issued earlier are not valid. The prospectus though issued in the name of Director of Medical Education on the rules regarding the eligibility and selection had the approval of the Government.

By G.O. (MS) No. 212/88/H & FWD, dated 2-12-1988 the Government clarified the position that every year prospectus for admission to the Medical and provisional courses are being issued with the approval of the Government. In so far as superspeciality are concerned the Government order states as follows:

"Government are pleased to authorise the Director of Medical Education to issue prospectus for admission to the above courses from the ensuing academic year onwards. However, the Director of Medical Education will obtain prior approval of the Government when any substantial change in any of the clause in the prospectus is considered necessary.

The Superintendent of Government Presses, Trivandrum will arrange publication of the prospectus in Kerala Gazette and supply of sufficient number of copies as and when required by the Director of Medical Education."

From this it is clear that the Director has issued the prospectus for the year 1995 after approval of the Government. Therefore, there is no scope for revising the order of the Director.

While so, some of the members of the 3rd respondent-Association moved an Original Petition before this Court. An interlocutory order was passed in C.M.P. No. 2488 of 1996 in O.P. No. 1430 of 1996 dated 29-1-1996. The said order reads as follows:--

"Notice. The 1st respondent is directed to dispose of Exts. P4 to P9 in the light of what is stated there and the judgment in Ext. P2 after giving the petitioners opportunity of being heard. Till then the process of selection for the superspeciality courses as per Ext. P3 shall not be completed."

By 29-1-1996 the process of selection was completed. The results of the selected candidates were published on 25-1-1996. Therefore, in my view the order of this Court has become infructuous.

The members of the 3rd respondent association have acquiesced with the conditions set out in the prospectus in applying for the course and writing the examination for selection. It is clear that after finding that they are not likely to succeed in the examination they have preferred the original petition before this Court just few days before the publication of the results. They have not impleaded the candidates who have been selected when they obtained an order to consider that representation. Even without going into the merits of the issues raised in these O.Ps. I am of the view that the selection of the petitioners have become final in so far as the members of the 3rd respondent is concerned and the same cannot be reopened for this year to enable them to make a fresh application once again for the seats for this year. The Supreme Court in Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, held that a person who had appeared for the examination without protest are not entitled to the relief. Similarly the Supreme Court concluded that the petitioner had filed the petition after realising that he would not succeed in the examination. In Virendra Kapur Vs. University of Jodhpur and Others, a Full Bench of Rajasthan High Court has taken the view that a candidate taking his examination on faith of certain regulations in force at time of examination is entitled to the benefit of that regulation and the University has no power to alter or substitute the regulation with retrospective effect to candidate''s disadvantage. I am in full agreement with the said view. The teacher candidates have submitted applications and taken part in the entrance examination without objecting the conditions. They have not asserted their right, if any, at the appropriate time. They have no right either statutory or fundamental to have the quota. In S.P. Manocha and Another Vs. The State of Madhya Pradesh and Others, ) Verma, J. (as he then was) speaking for the Bench held that a person has no general right to be admitted to any educational institution. The reason is that in the absence of any statutory provisions, an individual has no legal right to be admitted to a college. I am in full agreement with the said view that the members of the 3rd respondent has no legal right to claim a quota for admission.

Coming to the merits, the point for consideration is whether the Government is entitled to reserve a certain percentage of seats as Lecturers'' quota. Superspeciality as the very name itself implies is a specialised course intended for candidates already possessing high degree of skill and knowledge. Candidates who have succeeded in their basis degree of MBBS who have acquired post graduate degree in special branches of Medicine are only eligible to apply for super-speciality course. Therefore, whatever be the consideration for the admission to the other courses like MBBS or Post Graduate course M.D., M.S. cannot be the same for super-speciality course. This distinction has been clearly brought out by the Supreme Court in the decision in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, In the words of the Supreme Court in para 22 of the judgment:

"So much for admission to the MBBS course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to the post graduate courses, such as M.D., M.S. and the like. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation."

This difference has not been brought to the knowledge of the learned single Judges who have dealt with the matter and the Government also lost sight of the same.

It would be worthwhile to refer to the observation of Krishna Iyer, J. in Dr. Jagadish Saran and Others Vs. Union of India (UOI), , which was apporved as clearly and forcefully expressing the view of the Bench in Pradeep Jain''s case:

"....... The best skill or talent, must be hand-picked by selecting according to capability. At the level of Ph. D., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk.

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........... To devalue merit at the summit is to temporise with the country''s development in the vital areas of professional expertise. In science and technology and other specialised Fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation''s talent lying latent can produce. If the best potential in these fields is cold shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves.

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"..... It is difficult to denounce or renounce the merit criterion when the selection is for post graduate or post doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service."

After having directed that institutional preference should not in any event exceed 50% of the total number of open seats available for admission to the Post Grade Course, the Supreme Court in so far as super specialities are concerned categorically directed that it should be only on the basis of merit:

"But, even in regard to admissions to the post-graduate course, we would direct that so far Superspecialities such as neuro-surgery and cardiology arc concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis."

The Supreme Court also extracted the recommendations of the Indian Medical Council on this point which is as follows:

"Student for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the Universities."

The Supreme Court also recorded the opinion of the Medical Education Review Committee and Attorney General of Government of India that in far as post graduate courses are concerned, it should be based on merit and it should not be any reservation subject to constitulional right in favour of the Scheduled Caste and Scheduled Tribe.

In Fazal Ghafoor Vs. Union of India (UOI) and Others, while dealing with the petition under Article 32 if the Constitution of India to declare the prospectus for admission to PG Course under super speciality, 1987-88 in the medical colleges of Kerala are ultra vires of Articles 14 and 15 of the Constitution, the Supreme Court held that in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, ) the Supreme Court has observed that in super specialities there should really be no reservation. This according to the Supreme Court, is so in the general interest of the country and for improving the standard of higher education and thereby improving the quality of available medical services to the people of India. The Supreme Court expressed its hope and trust that the Government of India and the State Government shall seriously consider this aspect of the matter without delay and appropriate guidelines shall be evolved by the Indian Medical Council so as to keep the super specialities in medical eudcation unreserved, open and free.

While clarifying the main judgment of Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, the Supreme Court in Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, AIR 1986 SC 1877 : 1987 All LJ 189 reaffirmed that the reservation to post graduate course on the basis of institutional preference for students should not in any event exceed 50% of the total number of open seats available for admission to the post graduate course. But it did not alter the position of the super speciality course. In U.P. Junior Doctors'' Action Committee and Others Vs. Dr. B. Sheetal Nandwani and Others, the Supreme Court reaffirmed the Pradeep Jain''s case that the prescription by this Court had been that there should be selection test for post graduate admission as admission has become very competitive and to have compliance of Article 14 of the Constitution a broad-based arrangement should be made. On that account the Supreme Court clearly indicated that no admission should be permitted on the basis of the MBBS results,

The principle as laid down by the Supreme Court judgments and the import of the specific directions has not been brought to the notice of this Court while considering the question in O.P. No. 4465/91 and C.M.P. No. 2488/96 in O.P. No. 1430/96. The judgment in O.P. No. 4465 of 1991 has considered only the portion of the Supreme Court judgment dealing with the MBBS Course and the separate consideration for the post graduate and super speciality courses by the Supreme Court and the directions issued in this regard has not been taken into account. Both these judgments, in my view, would not be considered to lay down the position of law regarding the admission to super speciality. To that extent the judgment is "per incuriam". Halsbury''s Laws of England, Fourth Edition, Volume 26, page 259 it is stated that a decision is given per incuriam when the court has acted in ignorance of House of Lords''s decision in which case it must follow the decision. The decision of the Suprme Court in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, as explained in Dinesh Kumar are law declared under Article 141 of the Constitution of India. It is well settled that even the obiter of the Supreme Court is entitled to the highest respect -- vide Panjuman Hassomal Advani Vs. Harpal Singh Abnashi Singh Sawhney and Others, .

The judgment in O.P. No. 4465/91 overlooked the principle laid down in reference to super specialities which is binding on all courts and Government.

A Full Bench of Madras High Court in Philip Jeyasingh v. The Joint Registrar of Co-operative Societies (1992 1 LW 216) after analysing the entire subject on the principle of per incuriam held:

(1) A judgment is per incuriam if it is rendered in ingorance of a binding authority.

(2) A judgment is per incuriam if it is rendered in ignorance of a statute or a rule having the force of law.

(3) A judgment is per incuriam because it is based on a wrong understanding of the law or binding percedent.

Following the said judgment I am of the view that the judgment rendered in O. P. No. 4465/91 is per incuriam (''through want of care'' -- ''through inadvertence").

That apart the decision in O. P. No. 4465/91 is in reference to a challenge to the reservation made in favour of Tutors/ Assistant Professors for admission to the concerned super speciality. The learned Judge held that he did not find any reason to interfere with the reservation made by the Government. If thereafter the Government have decided to reserve or refused to allot a quota to a particular category on the basis of the Supreme Court decisions the said decision of the Government which was reflected in 1995 prospectus cannot be considered to have issued by mistake. The Government after having taken the decision justifying their stand before this Court, they have decided to implement the directions contained in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, of the Supreme Court of India to the effect that admission to super speciality should be granted purely on merit. The Government also took the stand that the O.P. filed by the members of the 3rd respondent as not maintainable since they have participated in the entrance test conducted on the basis of prospectus.

After having decided about the policy for 1995 prospectus with conscious decision to delete the quota of Tutors/Assistant Professors, the Government now has gone back on the issue when there was a direction to consider and to dispose of the representations of the Tutors and Lecturers. The judgment in O.P. No. 4465/91 did not direct that there should be a quota for Tutors/ Lecturers. The decision did not interfere with the Government order to allow a quota for the Tutors and Demonstrators.

The subsequent Government Order, G.O.Ms. No. 470/96/H & FWD, dated 28-2- 1996 which modified the earlier prospectus has simply extracted the contentions contained in the representations. The Government order failed to consider the directions contained in Fazal Ghafoor Vs. Union of India (UOI) and Others, ) in which they are parties. The Government order proceeded on the basis of the judgment in O.P. 4465/91 and thereafter "straight reading" of the judgment in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, ). In my view the Government Order suffers from the following infirmities:

1) The Government order is passed in violation of the principles of natural justice inasmuch as the selected candidates based on the previous prospectus were not heard. A decision had been taken adverse to the interest of the petitioners behind the back at the instance of the members of the 3rd respondent-association. The vested rights that has accrued in favour of the petitioners have been taken away by allotting a quota after completion of the selection.

2) The Government order has failed to follow the directions in the Supreme Court judgment in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, -- para. 22 and Fazal Ghafoor Vs. Union of India (UOI) and Others, .

3) The Government order did not safeguard the interest of those candidates who have been selected.

4) The Government order is in clear violation of the principle of merit repeatedly set out by the Supreme Court in reference to the super speciality in the decision referred above in which Kerala Government is a party and is all the more binding.

5) The Government cannot invoke the power of Clause XII of the earlier prospectus.

One of the contentions raised by the 3rd respondent in the counter affidavit is that the resident qualification prescribed in the prospectus is also illegal, and, therefore, the contention of the petitioners in O.Ps. disentitles them to seek admission to super speciality course on the basis of the decisipn of the Supreme Court. The said stand is not sustainable. The requirement of permanent residence has to be distinguished from the reservation. The residence requirement is an eligibility criteria which was found to be not contrary to the constitutional provisions. But a reservation of certain percentage as quota in favour of the particular category has to stand the test of reasonableness and equality clause under Article 14. Reservation in favour of socially and educationally backward classes is as per Article 15(4) of the Constitution of India come under the category of communal reservation. But reservation in favour of other categories coming under special reservation like ex-servicemen, physically handicapped, repatriants and sons and daughters of inter-caste marriage are separate and independent of residence qualification which are described as horizontal reservation. It should not be confused with the view of a regional reservation in this context. The judgment in Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, deals with this aspect and holds that insofar as admission to educational institutions are concerned Article 16(2) of the Constitution which bars discrimination on the ground of place of birth has no application. If there is any residence requirement for admission to medical college in a State it cannot he termed as unconstitutional on the ground of violation of Article 16(2). This provision also cannot be invoked for invalidating such residence requirement because that Article prohibits discrimination on the ground of place of birth and not on the ground of residence, as pointed out by the Supreme Court in D.P. Joshi Vs. The State of Madhya Bharat and Another, The Supreme Court went on to consider this question and ultimately held that residence requirement for admission to MBBS course cannot he held to be irrational and irrelevant. The judgment in reference to post graduate course under the hold of a super speciality course had no reservation at all even on the basis of institutional preference and the admission should be granted purely on merit on All India basis which was explained in Dinesh Kumar v. Motilal Nehru Medical College. Allahabad. AIR 1986 SC 1877 : 1987 All LJ 189 stating that in reference to admission to post graduate course instead of making available for admission to All India basis 15% of the total seats after taking into account reservations validly made a direction was given that not less than 25% of the total number of seats should be made available for being filled up on the basis of All India Entrance Examination. As held by the Supreme Court in Municipal Corporation of Greater Bombay and Others Vs. Thukral Anjali Deokumar and Others, ) that the observations in the judgment in Pradeep Jain must be understood in the context and held that Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, did not uphold the collegewise institutional preference of seats.

Coming to the question of reservation in favour of Lecturer candidates I find two infirmities in the present Government order, firstly a reservation in super speciality course in favour of a particular category cannot stand the test of reasonableness and secondly even assuming that the reservation is valid the selection merely based on the seniority of service among the teachers is not a proper method of selection. In so far as the second point is concerned I have no hesitation in holding that the selection based on seniority is clearly illegal. In all the selection to the medical courses, like MBBS and post graduate courses the selection should be based on competitive examination and on merit even among the reserved categories. The Supreme Court in the decision cited above had been consistently holding that selection other than by way of merit and especially in super speciality course is contrary to law and also arbitrary. In Dr. Rashmi Kant Misra Vs. G.S.V.M. Medical College, Kanpur and Others, a Division Bench of Allahabad High Court has taken the view that admission to courses known as super specialities otherwise than merits is illegal and contrary to Supreme Court direction. The admission to these courses is to be by merit and no other criteria. The Division Bench set aside the institutional reservation made in this case contrary to Supreme Court decision.

In reference to the question whether reservation in favour of the teaching, candidates is permissible I do not find satisfactory material placed by the Government in support of their view now that it would be for public interest to allow the reservation in favour of the teaching candidates. The Supreme Court has stated that an average of 50% marks to Doctors having three years rural service was found to be improper. The Supreme Court was of the view that when selection of candidates is being done for admission to specialise courses, merit alone should be the consideration. The Government has not provided any reservation on community basis even though they are entitled to do so under Article 15 of the Constitution. While so a reservation or earmarking of a quota for a particular category is not only in direct violation in the directions issued by the Supreme Court but is also arbitrary and irrational. The Government Order jn G.O. Ms. No. 470/96/H & FWD. dated 28-2-1996 decided to reintroduce the reservation on the basis of the contentions advanced which, according to them, are fair and reasonable under the public interest and for the development of the medical colleges. The Government has not taken an independent decision on its own. By this classification ''''Lecturer candidates" and giving them a quota, meril has been sacrificed and selection is made on seniority. The Supreme Court held in Municipal Corporation of Greater Bombay and Others Vs. Thukral Anjali Deokumar and Others, referred above that "unless there are strong reasons for exclusion of meritorious candidates any preference other than in order of merit, will not stand the test of Article 14 of the Constitution". The seats available is very limited considering the high degree of excel-tance required to undergo the highly competitive courser and merit cannot be compromised on at the cost of equalisation. It is no longer open to the Government to revise the views of the Apex Court and it would be negation to the law laid down that merit and merit alone ought to be the basis for admission to advanced courses like D. M. Cardiology and Neurosurgery. Direction given by the Supreme Court are clear and leave no scope for revision of opinion as done by the State after having understood it. The Supreme Courts in Dinesh Kumar v. Motilal Nehru Medical College. Allahabad (AIR 1986 SC 1877: 1987 All LJ 189) in reference to failure to follow Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, regarding the time schedule held as follows:

"This is a clear instance of either wilful default or total callous indifference to binding and lawful orders made by this Court ...... More so when the State Government and its officers obliged to give effect to our directions fail to take notice of the same and exhibit a conduct of non-co-operation and callousness."

The same view applies equally to the facts of this case. The Government is persuaded by the representation of the members of the 3rd respondent-Association and they have taken advantage of the direction issued by this Court to consider their representation and to revise the earlier decision taken by the Government. The only justification given for revising the earlier decision was that the Government was not aware of the judgment in O. P. No. 4465; 1991 and also that they did not read with the judgment of the Surpeme Court properly. Both these stands of the Government are unsustainable for the reason that the judgment in O.P. No. 4465/91 did not consider the law as laid down by the Supreme Court which is binding. The Government did not also follow the Supreme Court decisions of Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, ) Fazal Ghafoor Vs. Union of India (UOI) and Others, ). In the tatter decision the Government is a party, but has chosen to ignore the same. It is a sad reflection of the Stale''s attitude to the law declared by the Supreme Court which is binding. The action of the Government is nothing but disrespectful to the law as settled for the past nearly 10 years. Even the respect shown in the 1995 Prospectus is shortlived by restoring the same misunderstanding and position.

The contention of the petitioners in O.P. No. 4584/96 in ground "E" is to the effect that in the counter filed on 6-2-1996 the 1st respondent has completely supported and sustained the prospectus. The 1st respondent made a volte-face and re-introduce the reservation in favour of the Lecturers. Therefore it is obvious that pressure exerted by the Lecturers and their organisation is responsible for quashing Ext. P3 order. The same had been passed on extraneous consideration on account of the undue influence exerted by the Lecturers on the 1st respondent. Therefore mala fide is writ large on the face of the order. I find much force in the said stand. The Government has not only supported this stand of the prospectus in not reserving seats for the Lecturers, but also filed an appeal to the Division Bench against interim order taking the same stand. While so with a direction to consider the representations of the Lecturers it is too much to digest that the Government was persuaded to take a revised stand after going through the representation. In so far as the policy decision is concerned, it if for the Government to take an independent decision. They are bound by the Supreme Court decision on this matter as set out in the earlier counter affidavit. The excuses for not taking note of the Supreme Court decision as set out in the Government Order in G. O. Rt. No. 470/96/H & FWD. dated 28-2-1996 is hardly an acceptable stand. In the light of my findings as to the legal aspect of the matter and binding nature of the Supreme Court decisions the irresistible conclusion is that the Government has not revised the stand on merits, but on other not bona fide considerations as stated by the petitioners.

Before parting with case I must add as to how the innocuous orders of directions to dispose of representations are taken advantage of. First of all unless there is a statutory duty cast on the particular authority and right of the petitioners are found to have been deprived, direction in the nature of mandamus cannot be issued. The 3rd respondents have no fundamental or even statutory right to seek a special quota/ reservation or admission to an educational institution --vide S.P. Manocha and Another Vs. The State of Madhya Pradesh and Others, and Chaman Lal Talwar Vs. Guru Nanak University and Another, Without getting a finding a direction to dispose of representation sometime are taken as though an order favourable are to be issued. This is also taken advantage of time barred, stale claims revised and claims which cannot be looked are resurrected. The Supreme Court found in Om Prakash case referred above Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, :

"Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest".

Sometimes this comes in handy for the authorities to pass orders but for which there would be no scope for an order.

Taking this case I find under normal circumstances after issue of a notification prescribing qualification of eligibility no representations are entertainable as a matter of right. The Government had decided the norms in November, 1995. The members of the 3rd respondent after participating in the selection process filed O.P. challenging the prospectus and CMP to consider the representation and till that time not to finalise the admission. By the time CMP. order was passed, the selection was completed and announced. However, the selected persons were not heard because according to them there was no order to hear them.

The petitioners in O. P. No. 1430/96 have filed a memo dated 2-4-1996 stating that the Government has granted the relief as prayed for in the O.P. considering their representations. Hence they do not want to prosecute the O.P. seeking further relief in the matter. They sought for an order to close the O.P. The issue raised in the O.P. is covered. I accept the stand of the Government that the O.P. is not maintainable and that what the Government has done in the prospectus of November 1995 is implementation of the Supreme Court''s directive. The interim order in CMP 2488/96 is vacated and the O.P. 1430/96 is dismissed.

Though the Government Order in G. O. Rt. No.470/96/H & FWD dated 28-2-1996 is not challenged in the O.Ps. the resultant Government order is questioned and the parties went into the merits of both the Government order and I have considered the same.

For all these reasons I set aside the Government Orders -- G. O. Rt. No. 470/96/ H & FWD dated 28-2-1996 and G. O. Rt. 474/96/H & FWD. dated 28-2-1996 as illegal and arbitrary and unconstitutional. The Original Petitions 4532 & 4584 of 1996 are allowed and directions are hereby issued to respondents 1 and 2 to consider and admit the petitioners on the basis of selection for the super speciality courses without reference to the quota and the Government Order in G. O. Rt. No. 470/96/H & FWD dated 28-2-1996 but as per the unamended prospectus on the basis of merit if they are otherwise qualified, forthwith.