Manisha Yadav vs University of Delhi and Another

Vipin Sanghi, J.—The Faculty of Medical Sciences, University of Delhi issued a Bulletin of Information on 27.02.2008 in respect of admission to the MBBS Course for the session 2008-09 in various colleges affiliated to it, including the Lady Harding Medical College (LHMC). The petitioner is the student belonging to the Other Backward Classes (OBC) category. She appeared in the competitive examination conducted for admission to, inter alia, LHMC by the respondents. She secured 81st position amongst OBC category candidates, and was ranked 28 amongst OBC category girl candidates. Later rank is relevant since LHMC admits only girl candidates. Since the petitioner has failed to secure admission in LHMC as an OBC candidate, she has preferred the present writ petition.

Till the academic session 2007-2008, the total number of seats in LHMC for the MBBS course were 130. This was raised from the academic session 2008-2009 to 150. The grievance raised by the petitioner in this petition is that even though the number of seats in the MBBS Course in LHMC has been increased from the current academic session i.e. 2008-2009 from 130 to 150 i.e. by 20, the number of seats allocated to the OBC category is only 14. According to the petitioner, all the 20 seats should have been allocated for the OBC category candidates who are entitled to 27% reservations.

The dispute, therefore, centers around the calculation of number of reserved seats for the OBC category students seeking admission to the MBBS course in the LHMC affiliated to University of Delhi.

The Central Education Institution (Reservation and Admission) Act, 2006 (the Act) was brought into force on 3.1.2007. The purpose of this Act was to lay down the percentage of reservation to be provided in Central Educational Institutions (CEI) for Scheduled Castes, Scheduled Tribes and OBC candidates as 15%, 7.5% and 27% respectively. LHMC is a CEI since it is an institution which is maintained by the Central Government and is also affiliated to the University of Delhi which is a University established and incorporated under the Central Act i.e. Delhi University Act.

For the academic session 2007-2008 the distribution of 130 seats then available for the MBBS course in LHMC was as follows:

MBBS Course Name of the Medical College Seats to be filled in on the basis of DUMET Seats to be filled in by D.G.H.S. Seats to be filled in by Govt. of India Total Seats

General SC ST 15% Quota NGOI 51 19 10 LHMC 20 30 130

After the increase in the number of total seats from 130 to 150, the distribution of the 150 seats as done by the respondent University is as follows:

15% All India Quota 15% of 150 = 22

Remaining seats (150-22=128) = 128

15% SC seats (15% of 128= 19) = 19

7 1/2 % ST seats (7 1/2 of 128=10) = 10

Seats earmarked to be filled up By Govt. of India Nominees = 30

General category seats = 55

The total of the above is 19+10+30+55 = 114

Seats available to be filled up by OBC candidates (128-114) = 14

At the time of argument, learned Counsel for the petitioner Mr. R.K. Saini has submitted that the petitioner has no grievance so far as the allocation of higher number of seats to the SC and ST categories is concerned, as well as to the increase in the number of seats surrendered under the All India quota. However, he submits that the calculation of 55 seats for the unreserved general category is incorrect, inasmuch as, only 51 seats were available to the unreserved general category candidates for admission in the academic session 2007-2008. He, therefore, submits that if the number of seats for the unreserved general category candidates is maintained at the same level, i.e. 51, the number of seats that ought to have been made available to the OBC category candidates should have been 18 and not 14.

On the other hand, the respondent University, to justify the computation of 55 as the number of seats for the unreserved general category candidates, after the increase in the total number of seats from 130 to 150 in LHMC has submitted that the Director General of Health Services, Government of India issued a communication on 10.3.2008 whereby it was conveyed to the concerned institutions that the reservation for the SC and ST to the extent of 15% and 7.5% in the medical institutions should be provided after excluding the 15% seats which are surrendered under the All India quota for which a central examination is held on All India basis. This decision was taken since reservation was being granted for SC and ST candidates in the All India 15% quota. After the issuance of this communication, on 10.4.2008 the Supreme Court delivered its final judgment in Ashoka Kumar Thakur Vs. Union of India (UOI) and Others, whereby the Supreme Court upheld the grant of 27% reservations to the OBC category candidates. Prior to that, the provision of reservation to the OBC category candidates was put on hold by the Supreme Court vide order dated 29.3.2007 reported as Ashoka Kumar Thakur Vs. Union of India (UOI) and Others, This interim stay came to be vacated only on 10.4.2008. It is submitted that with the issuance of the communication dated 10.3.2008, the break up of the number of seats as was obtained, before the increase in the number of seats from 130 to 150, was as follows:

* Total seats = 130 * 15% All India Quota = 20 * Balance seats = 110 * 15% SC quota out of 110 = 17 * 7 1/2 ST quota out of 110 = 8 * Seats for Govt. of India nominees = 30 * The total of the above (17+8+30) = 55 * General category seats 110-55 = 55

Learned Counsel for the respondent submits that the respondents have, therefore, proceeded to allocate 55 seats for the unreserved general category and after accommodating the said 55 seats, 14 seats have been reserved for the OBC category candidates when the number of seats was raised from 130 to 150.

The reservation for the OBC to the extent of 27% in the annual permitted strength is to be achieved in the manner prescribed in Section 5 of the Act. Section 5(1) is relevant and reads as follows:

Mandatory increase of seats.-(1) Notwithstanding anything contained in clause (iii) of Section 3 and in any other law for the time being in force, every Central Educational Institution shall, with the prior approval of the appropriate authority, increase the number of seats in a branch of study or faculty over and above its strength so that the number of seats, excluding those reserved for the person belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, is not less than the number of such seats available for the academic session immediately preceding the date of the coming into force of this Act.

To decide the issue as to whether the number of seats available to the unreserved general category candidates should be taken as 51 or as 55, and simultaneously to decide whether the number of seats reserved for the OBC category candidates was rightly calculated as 14, or it should have been 18, one most not only look to the language of Section 5(1) of the said Act, but also to the background in which, and the purpose for which the increase in the number of seats from 130 to 150 was effected by the concerned authorities.

A reading of Section 5 of the Act shows that the scheme envisaged by Parliament is to achieve reservations for OBC category in CEIs of 27% of the annual permitted strength over a three years period commencing from calender year 2007. At the same time, the provision of such reservation for OBC category candidates cannot be at the expense of seats that were available for the unreserved general category candidates immediately preceding the date of coming into force of the Act. Therefore, the reservation to be provided in favour of the OBC category candidates has to be achieved by increasing the annual permitted strength with the prior approval of the appropriate authority. Section 6 of the Act obliges the CEIs to take all necessary steps which are required, for giving effect to the provisions of the Act i.e. for the purpose of providing reservation of seats in admission for the OBC category candidates upon the commencement of the Act. It was in consequence of the aforesaid provisions of the Act, that LHMC with the approval of the Central Government was able to increase the number of seats i.e. its annual permitted strength from 130, which existed upto the academic session 2007-2008 to 150 from the academic session 2008-2009 onwards. 27% of 150 seats comes to 40.5 which would have to be rounded of to 41 seats. That would be the number of seats that the OBC category candidates would be entitled to reservation on, if one were to provide full 27% reservation to the said category from the current academic session i.e. 2008-2009. However, as aforesaid, reservation for the OBC category candidates cannot be at the expense of the unreserved general category candidates, inasmuch, as the number of seats available to them till the last academic session i.e. prior to the enforcement of the Act, has to be maintained. Even though the Act was enforced on 3.1.2007 for all practical purposes, the same should be taken to have been enforced from 10.4.2008, since, as aforesaid, the said Act was put on hold by the Supreme Court on 29.3.2007 and the stay got vacated only on 10.4.2008. Between 3.1.2007 and 29.3.2007 no reservation for the OBC category was provided in LHMC, since the annual permitted strength did not undergo an upward revision between 3.1.2007 and 29.3.2007 u/s 5 of the Act.

Coming to the background in which the governmental decision contained in the communication dated 10.3.2008 was taken, It appears that earlier there was no reservation made for the SC and ST candidates in the 15% All India quota for MBBS and BDS seats. In respect of the All India P.G. Medical/Dental seats, the Supreme Court passed an order on 31.1.2007 in WP(Civil) No. 138/2006 Abhay Nath and Anr. v. University of Delhi and Anr. whereby it directed the provision of 15% reservation for Scheduled Castes and 7.5% for Scheduled Tribe candidates from the academic session 2007-2008. Following that decision, the Government of India took a decision that even in respect of the 15% All India quota MBBS/BDS seats, reservation for the Scheduled Castes and Scheduled Tribes candidates to the extent of 15% and 7.5% should be introduced from the academic session 2008-2009 onwards. It was, therefore, directed by the Government of India vide communication dated 10.3.2008 that the reservations for the Scheduled Castes and Scheduled Tribes to the extent of 15% and 7.5% respectively, in admissions to MBBS/BDS seats be calculated with reference to 85% of seats available with States/Universities/Colleges after contributing 15% MBBS/BDS seats to All India quota. This decision was specifically made applicable from the academic session 2008-2009 onwards.

Some time after the aforesaid decision was taken, the final decision of the Supreme Court in Ashok Kumar Thakur (supra) was rendered by the Supreme Court on 10.4.2008 upholding the grant of 27% reservation in CEIs to candidates belonging to the OBC category. The interim stay of reservations to the OBC category candidates stood vacated on 10.4.2008.

The decision contained in the communication dated 10.3.2008 was intended to be given effect to, and in fact was given effect to, only from the academic session 2008-2009. It was not meant to be given effect to retrospectively, and in fact did not interfere with the allocation of seats to the various reserved classes and with the total number of unreserved general seats, as they existed upto the last academic session i.e. 2007-2008. It is not the respondent''s case that while computing the number of seats for the unreserved general category candidates in the academic session 2007-2008 there was any error. The decision contained in the Government communication dated 10.3.2008 could not have been given retrospective effect, or to be deemed to have come into effect from the academic session 2007-2008. What Section 5(1) of the Act provides is, that while granting reservation to the OBC category candidates upon increase in the annual permitted strength, the number of seats, excluding those reserved for persons belonging to Scheduled Casts, Scheduled Tribes and the OBCs, is not less than the number of seats available "for the academic session immediately preceding the date of the coming into force of this Act." Therefore, one has to be guided by what was the number of seats available to the unreserved general category candidates immediately preceding the date of coming into force of the Act.

The Court can take notice of the background in which the scheme contained in Section 5 of the Act was evolved. Initially when the Government sought to introduce 27% reservations for the OBC category students there was large scale resentment and demonstrations throughout the country by those belonging to the general category/unreserved classes, as they saw it as potential diminution of the opportunities available to them for admission to educational institutions. With a view to assuage the feeling of the masses, and strike a balance in implementation of its reservation policy, the Government evolved a formula that the reservations to the OBC category candidates would be provided in such a manner that the interests of the unreserved general category candidates is not sacrificed. Consequently, while granting reservations to the OBC category candidates by increasing the number of seats in CEIs, Section 5 provided that the unreserved general category seats would not be less than the number of seats available for the academic session immediately preceding the date of coming into force of the Act. The number of seats that were available in the unreserved general category in LHMC in the last academic session i.e. 2007-2008 was only 51. It never touched the figure of 55. Had the final decision in Ashok Kumar Thakur (supra) been rendered after the completion of the admission process in the current academic session i.e. 2008-2009, the respondent University may have been justified in allocating 55 seats for the unreserved general category candidates upon implementation of the Government of India decision contained in the communication dated 10.3.2008. However, once the final decision in Ashok Kumar Thakur (supra) was rendered on 10.4.2008, and the provisions of the Act became enforceable, the respondent University was bound to apply the provision contained in Section 5(1) in letter and spirit and could not have proceeded to compute the number of unreserved general category seats of the preceding academic session on a hypothetical basis. It is impressible to take into account the decision (contained in the communication dated 10.3.2008), taken after the commencement of the academic session immediately preceding the effective date of coming into force of the Act (i.e. (10.4.2008), for the purpose of calculating the number of such seats, i.e the unreserved general category seats) since the decision (contained in communication dated 10.3.2008) is subsequent in point of time to the commencement of that academic session (i.e. 2007-08), and has no bearing on that number as it was, on its express terms, to take effect only from the next academic session.

The number of seats allocated to the unreserved general category for the academic session 2007-2008 was 51. Consequently it was 51 seats which were required to be preserved for the unreserved general category. By its impugned action the respondents have allocated four extra seats in the unreserved general category, which otherwise ought to have been made available to the OBC category candidates. I, therefore, hold that for the OBC category candidates for the academic session 2008-2009 there should have been 18, and not 14 MBBS course seats reserved at LHMC.

The petitioner approached the Court after the first round of counseling was over at LHMC. The petitioner does not seek the disturbance of the last 4 general category candidates who have been granted admission at LHMC on seat Nos. 52 to 55. Keeping in view these facts, I direct the respondents, that in case any vacancies exist or arise at LHMC within the general category (including in respect of those seats which eventually get converted to general category seats from other reserved categories), they should first be offered to the OBC category candidates according to merit to the extent of 4 seats, before offering them to any other candidate.

Quite apart from the issue raised in this petition, before I dispose off this petition, I consider it appropriate to speak my mind on another aspect that has come to my notice. I find that in LHMC 30 seats have been allocated to be filled by nomination by the Government of India. Earlier there were 130 seats in the said medical college in the MBBS course. Now there are 150 seats in the said course from the academic session 2008-09 and 30 seats continue to be filled by nominees of the government i.e upto 20% of the total number of seats. From the number of cases being filed in the courts relating to admission to medical courses and the great disparity between the number of applicants seeking admission and the number of seats available, it is clear that there is cut throat competition amongst the candidates. On account of the paucity of seats even highly meritorious candidates are not able to secure admission. I am conscious of the Constitution Bench decision of the Hon''ble Supreme Court in Kumari Chitra Ghosh and Another Vs. Union of India (UOI) and Others, wherein the Supreme Court has upheld the right of the Government to reserve seats to be filled by it by nomination in institutions set up by it. The justification offered by the Government, and accepted by the Supreme Court to uphold the provision of nomination quota in that decision was, inter alia, that many States and Union Territories did not have medical institutions of their own. That decision was rendered nearly 40 years ago and since then, with overall economic development of the country, a sea change has taken place with the opening of State funded and private medical and other institutions throughout the country.

Keeping in view these aspects, I am of the opinion that the Central Government should have a relook at the extent of nomination seats that it has reserved for being filled by its nominees. The review of this aspect be done within three months. The Central Government is directed to file an affidavit stating its position on the aforesaid aspect after it has reviewed the position in view of the changed circumstances, and should also disclose the guidelines and principles being followed by it for the purpose of making nominations. The affidavit should disclose the names of the candidates nominated for the academic session 2008-09 by the Central Government and the category in which each of them falls. The affidavit be filed within 20 weeks.

List the matter before Court on 18.02.2009 for directions.