JUDGMENT
Khan, (J)
1. Merit not reservation is the battle cry again and
the question raised this time in this petition is whether
reservation was inapplicable to speciality and super
speciality, faculty posts in All India Institute of Medical
Sciences (AIIMS).
2. It all seems to have started in 1994 when R3-4
initiated selection process for appointment to entry level
faculty post of Assistant Professor in AIIMS, a speciality
post and provided for reservation up to 45.5% for SC/ST and
OBC candidates in different ratio. Petitioners, led by
Faculty Association of Institute, a registered body engaged
in promotion of professional activity and efficiency of the
Institute faculty, opposed this. They made representations
to the competent authority pleading for exemption of the
post from reservation but failed to elicit any response.
They then filed his petition asking for quashing of
resolutions dated 11.1.83 and 27.5.94 passed by respondent
No. 3 applying reservation policy for appointment to the
post and for exemption of speciality and super speciality
faculty posts from such reservation.
3. Rule was issued in this petition by the court on
15.11.94 and an interim order passed restraining
respondents from giving effect to proposed reservation.
Respondents withheld the selection process for regular
appointment to the post and instead resorted to adhoc
appointments in patches. As a result, regular appointment
to the post of Assistant Professor has remained stalled for
the last seven years or so and meanwhile, adhoc appointees
have been claiming their own pound of flesh asking for
regularisation of their services in a counter petition
which is being dealt with separately.
4. Petitioner’s case, in nutshell is that AIIMS was
set up to impart high quality education and provide
specialised and super specialised treatment and for
conducting high standard research in medical science. It
had grown in strength over the years and had kept pace with
rapid technological developments in medical science and its
new centres and departments for specialised diagnostic and
therapeutic facilities required a continuous inflow of most
talented medical professionals from within India and
abroad. The Institute, therefore, could not compromise on
its high standards and it would be disastrous to expose it
to vagaries of reservation at the speciality and super
speciality level which would keep away the talented and
meritorious scientists and technologists from it, in turn,
defeating the very purpose for which it was set causing a
national loss in the process. Support for this is drawn
from Union Governments exemption of similarly situated
institutions like III, BRI, ISRO, Department of Energy and
some area of defense Ministry also.
5. Petitioners further claim that no reservation
could be provided for speciality and super speciality in
medical science including that of Assistant Professor in
AIIMS in the face of law declared by Supreme Court in some
of its judgments, more particularly in the celebrated
judgment in Indra Sawhney v. Union of India 1992 Supp.(3)
SCC 215 disallowing/prohibiting application of reservation
policy to speciality and super speciality in medical
science. Collateral support for this is sought from some
other judgments of the Apex Court in Jagdish Sarna v.
Union of India and Dr. Pradeep Jain v.
Union of India 1984 (2) SCR 942 and it is urged that the
reasoning adopted in these judgments for disallowing
reservation in admissions to speciality and super
speciality courses in medicine required to be applied to
appointments also, to avoid any anomalous situation.
6. Respondents 2 to 5 have detailed out the sequence
of events leading to the application of reservation policy
to AIIMS in their reply. It is pointed out by them the
faculty pots were first exempted from reservation till
11.1.87 when Governing Body of the Institute decided to
apply it pursuant to Institute Regulation 24 and GOI
reservation policy contained in OM dated 23.6.1975 which
was followed up by second resolution dated 27.5.1994
providing reservation for OBCs. It is disputed that any
Supreme Court judgment had created any bar to the
application of reservation rule to speciality and super
speciality posts. On the contrary, they were under
statutory duty to apply it under Institute Regulations and
Government of India Policy which was not challenged by
petitioners.
7. Respondents 1 & 2 have also supported this
position asserting that their reservation policy was
otherwise applicable to AIIMS faculty in terms of AIIMS
notification dated 15.10.1958 though it was being applied
for appointment at the entry level (Assistant Professor)
which was not a super speciality. It is pointed out that
since petitioners had failed to challenge the Government’s
reservation policy and statutory provisions like AIIMS
Regulation 24, no relief was liable to be granted to them.
8. Respondent No. 6, “Forum for Rights & Equality” and
implead as party respondent vide court order dated
10.1.95 has also filed its reply emphasising that R2 to 5
were statutorily bound to apply the reservation rule and
that the judgments of Supreme Court in Jagdish Sarna and
Dr. Pradeep Jain’s cases had o bearing in the matter.
9. Learned counsel for petitioners Mr. Gupta has taken
us through several judgments of Supreme Court which
according to him provided that reservation could not be
made to speciality and super speciality in medical science.
Beyond this, he did not press any independent plea or
ground for attacking the impugned resolutions passed by
respondent No. 3 or for seeking exemption of post of
Assistant Professor from reservation. Even otherwise, it
was not possible to examine any independent challenge to
these resolutions because petitioners had neither
challenged Government’s Reservation Policy contained in OM
dated 23.6.1975 nor for that matter AIIMS Regulation 24 or
its notification dated 15.10.1948 which paved the way for
application of reservation policy to faculty posts in
AIIMS. We are, therefore, confining to the limited issue
viz. whether reservation policy was inapplicable or
impermissible for making appointment to entry level faculty
post of Assistant Professor and to super speciality posts
in the light of the relied upon judgments of Supreme Court
and whether AIIMS resolutions dated 11.1.83 and 27.5.94
were liable to be struck down for that.
10. The issue can be better appreciated and answered
by reference to relevant paras of these judgments so as to
find out whether these contained any bar or prohibition
against application of reservation policy to speciality and
super speciality in medical science. Since Mr. Gupta has
staked his whole claim on the Supreme Court judgment in
Indra Sawhney’s case, it becomes necessary to extract two
paras relied upon by him :-
“While on Article 335, we are of the
opinion that there are certain services and
positions where either on account of the nature
of duties attached to them or the level (in the
hierarchy) at which they obtain, merit as
explained hereinabove, alone counts. In such
situations, it may not be advisable to provide
for reservations. For example, technical posts
in research and development organisations/
departments/institutions, in specialities and
super specialities in medicine, engineering and
other such courses in physical sciences and
mathematics, in defense services and in the
establishments connected therewith. Similarly,
in the case of posts at the higher echelons e.g.
Professors (in Education), Pilots in Indian
Airlines and Air India, Scientists and
Technicians in nuclear and space application,
provision for reservation would not be
advisable.
839. As a matter of fact, the impugned
Memorandum dated August 13, 1990 applies the
rule of reservation to civil posts and services
under the Government of India’ only, which means
that defense forces are excluded from the
operation of the rule of reservation though it
may yet apply to civil posts in defense
services. Be that as it may, we are of the
opinion that in certain service an in respect
of certain posts, application of the rule of
reservation may not be advisable for the reason
indicated hereinbefore. Some of them are: (1)
defense Services including all technical posts
therein but excluding civil posts. (2) All
technical posts in establishments engaged in
Research and Development including those
connected with atomic energy and space and
establishments engaged in production of defense
equipment. (3) Teaching posts of Professors –
and above, if any. (4) Posts in
super-specialities in Medicine, engineering and
other scientific and technical subjects. (5)
Posts of pilots (and co-pilots) in Indian
Airlines and Air India. The list given above is
merely illustrative and not exhaustive. It is
for the Government of India to consider and
specify and service and posts to which the rule
of reservation shall not apply but on that
account the implementation of the impugned
Office Memorandum dated August 13, 1990 cannot
be stayed of withheld.”
(emphasis supplied)
11. We have read these paras in between the lines but
have not come across and such bar or prohibition against
application of reservation policy to speciality and super
speciality in medical science. As is well known by now, in
this case court was seized of GOI OM dated 13.8.90
reserving 27% posts for OBCs pursuant to Mandal Commission
Report and while upholding this OM, it made certain
observations on several issues including the extent of
reservation and whether it was advisable to apply it in
certain services/posts on account of their nature and
duties attached thereto which called for higher level of
intelligence, skill and excellence like posts in defense
services and in speciality and super speciality in
medicine, engineering, physical sciences, space and
mathematics and so on. Undoubtedly, court observed that it
would not be advisable to make reservation in speciality
and super speciality in medical science, but it stopped
short of passing any direction in this regard and left it
open to the Government to consider and specify the services
and posts which could be exempted from the rule of
reservation. This, in our view, could not be treated to be
any direction or order against the application of
reservation policy to speciality and super speciality post
and impugned resolutions could not be invalidated from this.
12. The same holds true about other cited judgments in
Dr. Praeep Jain’s case and Jagdish Sarna’s case also. In
the first case, Supreme Court was dealing with the question
of reservation on the basis of residential and
institutional preference in admission to MBBS and PG
courses. It is true that court made some observations
against application of reservation to MO and MS courses,
but it again did not pas any declaration in this regard.
It was the same story in Jagdish Sarna’s case also in which
court was examining a challenge to a rule reserving 70% of
the seats for PG course for local Delhi graduates. It
again underscored the need for adopting merit criterion at
higher levels of speciality but it only ended up with a
direction for setting up a Committee for determining
application of reservation and the extent thereof and
stopped short of passing any order or direction
invalidating any application of reservation to the
speciality and superspeciality. We could not also find
anything to support petitioners’ case in Dr. Preeti
Srivastava v. State of M.P. , of which
much was sought to be made out by Mr. Gupta. Paras 23 and
26 relied on which he relied are reproduced hereunder :-
“23 This Court has repeatedly said that
at the level of superspecialisation there
cannot be any reservation because any dilution
of merit at this level would adversely affect
the national goal of having the best possible
people at the highest levels of professional
and educational training. At the level of a
superspeciality, something more than a mere
professional competence as a doctor is
required. A superspecialist acquires expert
knowledge in his speciality and is expected to
possess exceptional competence and skill in his
chosen field, where he may even make an
original contribution in the form of new
innovative techniques or new knowledge to fight
diseases. It is in the public interest that we
promote these skills. Such high degrees of
skill and expert knowledge in highly
specialised areas, however, cannot be acquired
by anyone or everyone.
26. In the premises the special
provisions for SC/ST candidates – whether
reservations or lower qualifying marks – at the
speciality level have to be minimal. There
cannot, however, be any such special provisions
at the level of superspecialities.”
13. A perusal of these whole judgments suggests that
aforesaid observations were made in the context of Indra
Sawney’s case. However, the court had itself made it
clear in this judgment that it was not dealing with the
question of application of reservation in post graduate
courses. Therefore, even this could not be treated to be
an authority on the point.
14. All told, none of these judgments have advanced
the case of petitioners any way. Therefore, their prayer
to invalidate the impugned AIIMS resolutions on the
strength of observations made therein which had not
fructified into any directions/order was not liable to be
granted. We also notice that none of the case cited
except Indra Sawhney’s case related to employment and,
therefore, it was rather far fetched to overstretch these
to conclude that rule of reservation could not be applied
to speciality an super speciality posts.
15. It may as well be that Government was not applying
its reservation policy to certain services/posts/
institutions like III, BARC, etc. but that it was its own
prerogative to do so as held by the Supreme Court in State
of Punjab v. Dayanand Medical College 2001 (VIII) AD SC
445 and to exempt services and posts from reservation.
Petitioners could not catch at straws to draw any analogy
from that the seek such exemption from the court.
16. We accordingly hold that for the present, nothing
came in the way of respondents 3 to 5 to apply reservation
rule for making regular appointment to the post of
Assistant Professor and that none of the judgments of the
Supreme Court including in Indra Sawhney’s case had imposed
any bar or prohibition in this regard.
17. Petition is accordingly dismissed.