JUDGMENT
Pradeep Nandrajog, J.
1. The present appeal is directed against the judgment and order dated 18.9.2002 dismissing various writ petitions and miscellaneous applications in respect of the counselling held by the University of Delhi to fill up seats in post graduate courses in medical colleges in Delhi.
2. On the facts and circumstances of the case, we find no infirmity in the impugned judgment. Even otherwise the dispute relates for admissions in the current academic session i.e. 2002-03. Admissions were completed in July, 2002. The academic year is almost over. The students admitted to various courses have attended classes for almost a year and the first year exams are going to be conducted by the end of this month. Thus, no relief can be granted to the appellants. Neither can we permit admissions at the end of the term nor can we direct that the affected students be accommodated in the next academic year. In Medical Council of India Vs. Madhu Singh and Ors, it was held:-
(i) there is no scope for admitting students midstream as the same would be against the very spirit of statutes governing medical education.
(ii) even if seats are unfilled that cannot be a ground for making midstream admissions.
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year.
3. We, however, feel that for future certain guidelines are required to be framed and this is the reason why we propose to go into the issue and give reasons in support thereof.
4. The genesis of the dispute lies in the rules framed by the University of Delhi pertaining to admission in post graduate medical courses. Prior to 1984, for being eligible to be admitted to a post graduate course in a medical institute in a State, the candidate was required to acquire the MBBS degree from within the State. In the judgment reported as Dr. Pradeep Jain Vs. Union of India, , the Supreme Court quashed this 100% reservation of seats based on residence. It was held that this reservation to the post graduate medical courses could not be more than 50%. Following this decision, 50% of the seats in the post graduate medical courses through out India were filled up on the basis of an All India Competitive Examination and the balance by the respective universities in the States. This 50% open seats were subsequently changed to 25%.
5. This 25% allocated seats to be filled on All India basis has now popularly come to known as All India Quota. The remaining 75% seats in each State and Union Territories to be filled by the concerned University or medical college in the State is popularly known as State quota.
6. What would happen if 25% of the seats in a particular medical college allocated to the All India Quota was not filled. It was held that the said seat would be surrendered to the 75% quota to be filled by the concerned university or the medical college i. e. State quota.
7. Since the All India Quota was to be filled by the Central Government pursuant to the All India Competitive Examination conducted by All India Institute of Medical Science, the Director General of health services became the nodal authority to fill these seats. Since the unfilled seats in the All India Quota were to be surrendered to the local students, by judgment dated 16.9.1986 in Writ Petition No.11178/1985 the Supreme Court directed that the seats earmarked to be filled on the basis of the All India Quota should be filled first and only thereafter the 75% seats for the local students be filled up. Concerned with the delay in filling up of post graduate medical seats in some of the universities, the Supreme Court in its judgment reported as Dr. Dinesh Kumar Vs. Moti Lal Nehru Medical College, directed the manner in which the selection examination would be conducted. It was directed that announcement for holding of selection examination would be made in October of every year. Examinations would be conducted in January. Results would be announced within four weeks and admissions would commenced two weeks thereafter. It was directed that the courses of study shall commence in every institution through out the country from 2nd May, 2002. The importance of this time schedule was reiterated by the Hon’ble Supreme Court from time to time, the last being in the judgment , Dr. Dinesh Kumar Vs. Moti Lal Nehru College. The Supreme Court observed that the time schedule for commencing of courses i.e. 2nd May had to be strictly complied with.
8. The following four clear and unambiguous directions of the Supreme Court may be culled out from the judgment of the Supreme Court referred above:-
1) Admissions to the post graduate medical courses must be completed within the time framed.
2) Seat which falls in the All India Quota which remains unfilled will revert to the local institution.
3) Courses should commence on 2nd May.
4) All India Quota seats should be filled first before the State quota seats are filled up.
9. Situation arose where the State seats were being filled up when the process of filling up of all the All India Quota seats had not been completed. Situation also arose where after the seats were filled up, it was noticed that seats in All India Quota had fallen vacant due to students not joining. Students who had opted in seats on the basis of merit in the respective local institutions wanted option of joining the seat having fallen vacant subsequently or released from the All India Quota.
10. The University of Delhi had framed certain rules which did not permit a student who, based on his merit was offered and had taken a seat to a particular course but wanted to be considered for another seat in a subsequent round of counselling. This rule was challenged as being arbitrary, discriminatory and violative of the principle “merit being compromised”. This Court considered the issue and came to a finding that howsoever unjust it might be to a student higher in the order of merit, it may cause hardship and heart burning but in the process for filling up of the seats it was dispensable to follow the rule that if a candidate had opted for a seat when offered to him during counselling, he could not claim a right for admission to a subsequently fallen seat, which of course would then go to a candidate lower in the merit list. The judgment of this Court is , Dr. Sandhya Kabra Vs. University of Delhi.
“69 ) It is true that some of the candidates may feel that hardship is being caused to them because the vacant All India seats were not made available to them. It is, however, to be borne in mind that it is not for the Court to lay down any educational policy. The Court has a limited role to play. Its function is to see whether the policy which is formulated, in a case like this, is fair or is it arbitrary. Educational policies are laid down by persons who are experts in their field and as held by the Supreme Court, the Court should be slow in interfering in such matters (see Bhusham Uttam Khare v. The Dean, B.J. Medical College, . It has also been held by the Supreme Court in Kumari N. Vasundara v. State of Mysore, that hardship in an individual case cannot be a test for determining the validity of a Scheme. Dealing with the question of selection of candidates to Pre-Professional course in Government Medical Colleges, it was observed by the Supreme Court as follows:-
But cases of hardships are likely to arise in the working of almost any rule which may be framed in selecting a limited number of candidates for admission out of a long list. This however, would not render the rule unconstitutional. For relief against hardship in the working of a valid rule, the petitioner has to approach elsewhere because it relates to the policy underlying the rule.”
11. The very next year, i.e. 1994, the problem surfaced again. A student who had been allotted a seat in Safdarjung Medical Hospital was denied admission in a seat in Lady Harding Medical College. The seat in Lady Harding Medical College had fallen vacant due to the student to whom it was allotted had not joined the course. This Court in its judgment , Dr. Veena Gupta vs. University of Delhi affirmed its earlier judgment in Sandhya Kabra’s case. It was held that for being put in the list of “wait listed candidates” only those candidates who had not been offered a seat in the earlier counselling or who had not accepted a seat when offered were alone entitled to put in the wait listed candidates. Candidates who were offered a seat and had accepted the same were not entitled to seek admission thereafter and it was no ground to allege that candidates lower in merit were offered a seat in preference to a candidate who had obtained more marks.
12. In the year 2001, the Supreme Court had an occasion to deal with this issue. In the judgment , Arvind Kr. Kankane Vs. State of U.P., the decision of this Court in Veena Gupta’s case (1994 Delhi 108) was upheld. The rules framed were held to be “in accordance with reason and stands the test of rationalities”. This decision in Arvind Kr. Kankane’s case was reaffirmed by the Supreme Court in its judgment , Shafali Nandwani vs. State of Haryana.
13. The University of Delhi has framed the admission rules in conformity with the aforesaid judgments. The relevant part of the rule reads as under:-
“No individual communication would be sent to the candidates for appearing before the Committee. The candidates with merit position as stated above should appear before the Committee on the dates mentioned above. Candidates should assemble at 9.00 A.M. in the Committee Room (Room No. 411) IVth Floor, V.P. Chest Institute, Delhi-110007 on the dates concerned. If any candidate is unable to appear on the date and time specified above, he/she may send his/her representative giving reasons for his/her absence to the satisfaction of Admission Committee and also stating that the selection made by his/her representative does not appear before the Committee for initial counselling on the specified date and time his/her name will not be considered for admission to any course in the final counselling.
When a candidate appears before the aforesaid Committee he/she would be informed of the available subjects and Institutions in which the courses are available. From among the subjects and the Institutions available at the time of his/her counselling, he/she would be entitled to select only one subject and one Institution and he/she would be allotted the said subject and the said Institution. Once a candidate allotted subject and Institution, he/she will not be entitled to seek any change subject or Institution. However, a candidate who opts for a subject and an Institution at the Initial Counselling, if he/she gives in writing to the Faculty Office before the date stipulated for joining the course that he/she would not be joining the said course and that his/her name may be kept in the waiting list for Final counselling, the name of the said candidate would be included in the waiting list.
If any seat falls vacant in any subject in any Institution during the course of Counselling or thereafter, the same would be filled up in the Final Counselling, from the waiting list and merit position 601 to 700 strictly in order of merit in the same manner as mentioned above.
While filling up vacant seats on account of drop out or surrender of seats, candidates who have already joined the allotted subject and Institution will not be considered and only candidates in the waiting list and merit position 601 to 700 will be considered in the Final Counselling.
The candidate who has been offered a seat in the initial conselling and has accepted the offer but has not surrendered his seat (in writing) before the stipulated date and has also not joined the said course, he/she will not be entitled to be placed on the waiting list and will also be debarred in the subsequent Screening Examinations till the duration of the Course concerned is over. It is clarified that the candidates offered admission in the Final counselling have no right to surrender their seats and no extension for joining will be given beyond 20-7-2002 they will be debarred in the subsequent Screening Examinations till the duration of the Course concerned is over.
A candidate who does not wish to be admitted to any of the subjects available at the time of his/her counselling may give in writing to the said effect. He/she will be placed in the waiting list and will be considered for admission to the vacant seats, if any, in the final counselling in order of merit.”
14. Thus it is clear that not only under the aforesaid rule, but even under the various judgments passed by this Court and affirmed by the Supreme Court, a candidate who has been allotted a seat in the initial counselling and has accepted the offer but has not surrendered his seat ( in writing) before the stipulated date, he/she will not be entitled to be placed on the wait list and will also be debarred in the subsequent Screening Examinations till the duration of the course concerned is over. Further, to be placed in the wait list, the candidate who does not wish to be admitted to any of the subjects available at the time of his/her counselling has to give the same in writing to the authorities concerned. Once a candidate accepts a course offered, he/she goes out from the wait list. The candidate is, therefore, not eligible to be considered in future counselling.
15. The rationale of the various judicial pronouncements and the rule as framed by the University of Delhi is that if a candidate higher in merit is given further option to opt for a seat in subsequent counselling, it will start a chain reaction. His/her seat will fall vacant and would become liable to be opted for by another candidate. In turn, the seat of this candidate would be liable to be opted for by the fourth and so on. The effect of putting the seat back for counselling for all candidates would, therefore, upset the entire counselling which has taken place. Howsoever unfair it may seem, there is no alternative but to proceed ahead from amongs remaining wait listed candidates.
16. Since this is the rationale of the judgments and the rules, it would be concomitant obligation of all parties concerned to ensure that as far as possible, merit should not be compromised. The benefit of lapsed seat from the All India Quota should go to all candidates is also equally essential. The importance of the judgment dated 16.9.1986 in writ petition No.11178/85 of the Supreme Court ( to which we have referred above) cannot be lost sight off. The Supreme Court had directed the seats earmarked to be filled on the basis of the All India Quota should be filled first.
17. In the present academic year i.e. 2002-2003, to give effect to the aforesaid directions of the Supreme Court the Director General of Health Services had framed the counselling schedule in such manner that the various candidates could complete their counselling and courses could commence from 2nd May, 2002. Counselling for 25% seats in the All India Quota were scheduled to begin on 5.3.2002 and were to be completed till 22.3.2002. The University of Delhi notified 10.4.2002 to 12.4.2002 as the dates of its counselling. A residuary date of final counselling being 30.6.2002 was notified. The university had framed its counselling schedule keeping in view that the All India Counselling would be over by 22.3.2002 and unfilled seats, if any, would revert to the State quota and the University of Delhi could include the same as available to the students. Unfortunately when the All India Counselling was in progress, on 7.3.2002 a stay order was passed in CW No. 9895/2002 by the High Court of Judicature at Allahabad. This halted the filling up of the seats in the All India Quota. The Division Bench of Allahabad High Court vacated the stay on 20.3.2002. For reasons not forthcoming on record, the Director General of Health Services did not resume the All India Counselling. It may be noted that on 7.3.2002 when stay was granted by the High Court of Judicature at Allahabad, All India Counselling up to serial No. 575 had taken place.
18. Since the Director General of Health Services was aware that the various universities and states would be commencing counselling in April, 2002, not being certain as to when the stay order would be facted, on 11.3.2002 the Director General, Health Services notified to all concerns that no All India Quota seats be deemed to be surrendered.
19. The University of Delhi proceeded ahead with its counselling between 10th to 12th April, 2002 as fixed by it and allocated seats. Course study commenced in May, 2002. The final position of seats allocated and taken up by the candidates were worked out. Seats were found vacant and the University proceeded with its final counselling scheduled for 30.6.2002. In the meanwhile, the Director General of Health Services notified counselling for the All India Quota for the remaining seats, filling up of which had got halted due to stay order passed by Allahabad High Court. The re-scheduled counselling was fixed form 3.7.2002 to 9.7.2002.
20. Due to intervening events, it was not possible to comply with the directions of the Supreme Court in its earlier judgment that all seats be filled up on 2nd May in each year and that All India Quota seats be filled first. Ultimately, 54 seats were surrendered to the State quota after the All India Counselling was completed by 9.7.2002.
21. In our opinion, the University of Delhi and the Director General of Health Services ought to have better coordinated themselves. The stay order was vacated by the Allahabad High Court on 20th March, 2002. Even the writ petition filed in the Allahabad High Court which was transferred to this Court stood dismissed on 6.6.2002 along with the another writ petition being CW No.1535/2002 filed in this Court. Had the two authorities meaningfully interacted with each other, noting that the University of Delhi had scheduled the final counselling for 30.6.2002, either the Director General of Health Services should have completed the counselling in the All India Quota before 30.6.2002 so that the unfilled seats would have been surrendered to the State quota and would have been available for being filled up in the final counselling, alternatively, a week or 10 days was inconsequential and University of Delhi could have postponed the final counselling from 30th June, 2002 to after 9.7.2002, the last date of rescheduled counselling by the Director General of Health Services. If this would have happened, the present position which is to the detriment of the students would not have arisen. As a result of the action of the University of Delhi and Director General of Health Services, what has happened is that students who had opted in courses in the final counselling of 30th June, 2002 went out of the ” wait list” and students lower in the merit who remained on the wait list became entitled to and have indeed being given admission against the surrendered seats. Petitioners have got admission in diploma courses and candidates lower in order of merit have got admission in degree courses.
22. In our opinion, four directions of Supreme Court culled out by us in the preceding part of our judgment are equally important and each is entitled to be given its due weightage.
23. We accordingly, direct that in future the Director General of Health Services would ensure that counselling is completed to the All India Quota before counselling commences to the State quota. The University of Delhi and Director General of Health Services are directed to coordinate their functioning to ensure that our preceding direction is complied with. If any supervening event, beyond the control of the two authorities comes into play and the notified schedule of counselling of either of them gets affected and as a consequence a large number of seats get affected, the University of Delhi would postpone its schedule for counselling to a suitable date, if it has become certain that the All India Counselling can be commenced and completed in definite time frame. We clarify that if it becomes uncertain as to by what date the All India Counselling would be completed, for example, for the present year if the stay order passed had continued to remain in force even in the month of June, 2002, one was left to guess its duration, the University could have proceeded with what it did. This action would be unexceptionable. However, where with precise certainity the terminus of the counselling by the Director General of Health Services can be determined, the University would suitably amend its schedule for counselling.
24. With the directions aforesaid, the LPA is disposed of.