{"id":114649,"date":"2001-11-26T00:00:00","date_gmt":"2001-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/faculty-association-of-all-india-vs-union-of-india-uoi-and-ors-on-26-november-2001"},"modified":"2017-04-29T02:08:16","modified_gmt":"2017-04-28T20:38:16","slug":"faculty-association-of-all-india-vs-union-of-india-uoi-and-ors-on-26-november-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/faculty-association-of-all-india-vs-union-of-india-uoi-and-ors-on-26-november-2001","title":{"rendered":"Faculty Association Of All India … vs Union Of India (Uoi) And Ors. on 26 November, 2001"},"content":{"rendered":"
Delhi High Court<\/div>\n
Faculty Association Of All India … vs Union Of India (Uoi) And Ors. on 26 November, 2001<\/div>\n
Equivalent citations: 2002 (63) DRJ 807<\/div>\n
Bench: B Khan, S Aggarwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Khan, (J) <\/p>\n
 1. Merit not reservation is the battle cry again and
\nthe question raised this time in this petition is whether
\nreservation was inapplicable to speciality and super
\nspeciality, faculty posts in All India Institute of Medical
\nSciences (AIIMS).\n<\/p>\n
 2. It all seems to have started in 1994 when R3-4
\ninitiated selection process for appointment to entry level
\nfaculty post of Assistant Professor in AIIMS, a speciality
\npost and provided for reservation up to 45.5% for SC\/ST and
\nOBC candidates in different ratio. Petitioners, led by
\nFaculty Association of Institute, a registered body engaged
\nin promotion of professional activity and efficiency of the
\nInstitute faculty, opposed this. They made representations
\nto the competent authority pleading for exemption of the
\npost from reservation but failed to elicit any response.
\nThey then filed his petition asking for quashing of
\nresolutions dated 11.1.83 and 27.5.94 passed by respondent
\nNo. 3 applying reservation policy for appointment to the
\npost and for exemption of speciality and super speciality
\nfaculty posts from such reservation.\n<\/p>\n
 3. Rule was issued in this petition by the court on
\n15.11.94 and an interim order passed restraining
\nrespondents from giving effect to proposed reservation.
\nRespondents withheld the selection process for regular
\nappointment to the post and instead resorted to adhoc
\nappointments in patches. As a result, regular appointment
\nto the post of Assistant Professor has remained stalled for
\nthe last seven years or so and meanwhile, adhoc appointees
\nhave been claiming their own pound of flesh asking for
\nregularisation of their services in a counter petition
\nwhich is being dealt with separately.\n<\/p>\n
 4. Petitioner’s case, in nutshell is that AIIMS was
\nset up to impart high quality education and provide
\nspecialised and super specialised treatment and for
\nconducting high standard research in medical science. It
\nhad grown in strength over the years and had kept pace with
\nrapid technological developments in medical science and its
\nnew centres and departments for specialised diagnostic and
\ntherapeutic facilities required a continuous inflow of most
\ntalented medical professionals from within India and
\nabroad. The Institute, therefore, could not compromise on
\nits high standards and it would be disastrous to expose it
\nto vagaries of reservation at the speciality and super
\nspeciality level which would keep away the talented and
\nmeritorious scientists and technologists from it, in turn,
\ndefeating the very purpose for which it was set causing a
\nnational loss in the process. Support for this is drawn
\nfrom Union Governments exemption of similarly situated
\ninstitutions like III, BRI, ISRO, Department of Energy and
\nsome area of defense Ministry also.\n<\/p>\n
 5. Petitioners further claim that no reservation
\ncould be provided for speciality and super speciality in
\nmedical science including that of Assistant Professor in
\nAIIMS in the face of law declared by Supreme Court in some
\nof its judgments, more particularly in the celebrated
\njudgment in  Indra Sawhney v. Union of India<\/a> 1992 Supp.(3)
\nSCC 215 disallowing\/prohibiting application of reservation
\npolicy to speciality and super speciality in medical
\nscience. Collateral support for this is sought from some
\nother judgments of the Apex Court in  Jagdish Sarna v.
\nUnion of India  and  Dr. Pradeep Jain v.\n<\/p>\n
Union of India 1984 (2) SCR 942 and it is urged that the
\nreasoning adopted in these judgments for disallowing
\nreservation in admissions to speciality and super
\nspeciality courses in medicine required to be applied to
\nappointments also, to avoid any anomalous situation.\n<\/p>\n
 6. Respondents 2 to 5 have detailed out the sequence
\nof events leading to the application of reservation policy
\nto AIIMS in their reply. It is pointed out by them the
\nfaculty pots were first exempted from reservation till
\n11.1.87 when Governing Body of the Institute decided to
\napply it pursuant to Institute Regulation 24 and GOI
\nreservation policy contained in OM dated 23.6.1975 which
\nwas followed up by second resolution dated 27.5.1994
\nproviding reservation for OBCs. It is disputed that any
\nSupreme Court judgment had created any bar to the
\napplication of reservation rule to speciality and super
\nspeciality posts. On the contrary, they were under
\nstatutory duty to apply it under Institute Regulations and
\nGovernment of India Policy which was not challenged by
\npetitioners.\n<\/p>\n
 7. Respondents 1 & 2 have also supported this
\nposition asserting that their reservation policy was
\notherwise applicable to AIIMS faculty in terms of AIIMS
\nnotification dated 15.10.1958 though it was being applied
\nfor appointment at the entry level (Assistant Professor)
\nwhich was not a super speciality. It is pointed out that
\nsince petitioners had failed to challenge the Government’s
\nreservation policy and statutory provisions like AIIMS
\nRegulation 24, no relief was liable to be granted to them.\n<\/p>\n
 8. Respondent No. 6, “Forum for Rights & Equality” and
\nimplead as party respondent vide court order dated
\n10.1.95 has also filed its reply emphasising that R2 to 5
\nwere statutorily bound to apply the reservation rule and
\nthat the judgments of Supreme Court in  Jagdish Sarna and
\n Dr. Pradeep Jain’s cases had o bearing in the matter.\n<\/p>\n
 9. Learned counsel for petitioners Mr. Gupta has taken
\nus through several judgments of Supreme Court which
\naccording to him provided that reservation could not be
\nmade to speciality and super speciality in medical science.
\nBeyond this, he did not press any independent plea or
\nground for attacking the impugned resolutions passed by
\nrespondent No. 3 or for seeking exemption of post of
\nAssistant Professor from reservation. Even otherwise, it
\nwas not possible to examine any independent challenge to
\nthese resolutions because petitioners had neither
\nchallenged Government’s Reservation Policy contained in OM
\ndated 23.6.1975 nor for that matter AIIMS Regulation 24 or
\nits notification dated 15.10.1948 which paved the way for
\napplication of reservation policy to faculty posts in
\nAIIMS. We are, therefore, confining to the limited issue
\nviz. whether reservation policy was inapplicable or
\nimpermissible for making appointment to entry level faculty
\npost of Assistant Professor and to super speciality posts
\nin the light of the relied upon judgments of Supreme Court
\nand whether AIIMS resolutions dated 11.1.83 and 27.5.94
\nwere liable to be struck down for that.\n<\/p>\n
 10. The issue can be better appreciated and answered
\nby reference to relevant paras of these judgments so as to
\nfind out whether these contained any bar or prohibition
\nagainst application of reservation policy to speciality and
\nsuper speciality in medical science. Since Mr. Gupta has
\nstaked his whole claim on the Supreme Court judgment in
\n Indra Sawhney’s case, it becomes necessary to extract two
\nparas relied upon by him :-\n<\/p>\n
 “While on Article 335, we are of the
\nopinion that there are certain services and
\npositions where either on account of the nature
\nof duties attached to them or the level (in the
\nhierarchy) at which they obtain, merit as
\nexplained hereinabove, alone counts.  In such
\nsituations, it may not be advisable to provide
\nfor reservations. For example, technical posts
\nin research and development organisations\/
\ndepartments\/institutions, in specialities and
\nsuper specialities in medicine, engineering and
\nother such courses in physical sciences and
\nmathematics, in defense services and in the
\nestablishments connected therewith. Similarly,
\nin the case of posts at the higher echelons e.g.
\nProfessors (in Education), Pilots in Indian
\nAirlines and Air India, Scientists and
\nTechnicians in nuclear and space application,
\nprovision for reservation would not be
\nadvisable.\n<\/p>\n
 839. As a matter of fact, the impugned
\nMemorandum dated August 13, 1990 applies the
\nrule of reservation to civil posts and services
\nunder the Government of India’ only, which means
\nthat defense forces are excluded from the
\noperation of the rule of reservation though it
\nmay yet apply to civil posts in defense
\nservices.  Be that as it may, we are of the
\nopinion that in certain service an in respect
\nof certain posts, application of the rule of
\nreservation may not be advisable for the reason
\nindicated hereinbefore. Some of them are: (1)
\ndefense Services including all technical posts
\ntherein but excluding civil posts. (2) All
\ntechnical posts in establishments engaged in
\nResearch and Development including those
\nconnected with atomic energy and space and
\nestablishments engaged in production of defense
\nequipment. (3) Teaching posts of Professors –
\nand above, if any. (4) Posts in
\nsuper-specialities in Medicine, engineering and
\nother scientific and technical subjects. (5)
\nPosts of pilots (and co-pilots) in Indian
\nAirlines and Air India. The list given above is
\nmerely illustrative and not exhaustive.  It is
\nfor the Government of India to consider and
\nspecify and service and posts to which the rule
\nof reservation shall not apply but on that
\naccount the implementation of the impugned
\nOffice Memorandum dated August 13, 1990 cannot
\nbe stayed of withheld.”\n<\/p>\n
 (emphasis supplied) <\/p>\n
 11. We have read these paras in between the lines but
\nhave not come across and such bar or prohibition against
\napplication of reservation policy to speciality and super
\nspeciality in medical science. As is well known by now, in
\nthis case court was seized of GOI OM dated 13.8.90
\nreserving 27% posts for OBCs pursuant to Mandal Commission
\nReport and while upholding this OM, it made certain
\nobservations on several issues including the extent of
\nreservation and whether it was advisable to apply it in
\ncertain services\/posts on account of their nature and
\nduties attached thereto which called for higher level of
\nintelligence, skill and excellence like posts in defense
\nservices and in speciality and super speciality in
\nmedicine, engineering, physical sciences, space and
\nmathematics and so on. Undoubtedly, court observed that it
\nwould not be advisable to make reservation in speciality
\nand super speciality in medical science, but it stopped
\nshort of passing any direction in this regard and left it
\nopen to the Government to consider and specify the services
\nand posts which could be exempted from the rule of
\nreservation. This, in our view, could not be treated to be
\nany direction or order against the application of
\nreservation policy to speciality and super speciality post
\nand impugned resolutions could not be invalidated from this.\n<\/p>\n
 12. The same holds true about other cited judgments in
\n Dr. Praeep Jain’s case and  Jagdish Sarna’s case also. In
\nthe first case, Supreme Court was dealing with the question
\nof reservation on the basis of residential and
\ninstitutional preference in admission to MBBS and PG
\ncourses. It is true that court made some observations
\nagainst application of reservation to MO and MS courses,
\nbut it again did not pas any declaration in this regard.
\nIt was the same story in  Jagdish Sarna’s case also in which
\ncourt was examining a challenge to a rule reserving 70% of
\nthe seats for PG course for local Delhi graduates. It
\nagain underscored the need for adopting merit criterion at
\nhigher levels of speciality but it only ended up with a
\ndirection for setting up a Committee for determining
\napplication of reservation and the extent thereof and
\nstopped short of passing any order or direction
\ninvalidating any application of reservation to the
\nspeciality and superspeciality. We could not also find
\nanything to support petitioners’ case in  Dr. Preeti
\nSrivastava v. State of M.P. , of which
\nmuch was sought to be made out by Mr. Gupta. Paras 23 and
\n26 relied on which he relied are reproduced hereunder :-\n<\/p>\n
 “23 This Court has repeatedly said that
\nat the level of superspecialisation there
\ncannot be any reservation because any dilution
\nof merit at this level would adversely affect
\nthe national goal of having the best possible
\npeople at the highest levels of professional
\nand educational training. At the level of a
\nsuperspeciality, something more than a mere
\nprofessional competence as a doctor is
\nrequired. A superspecialist acquires expert
\nknowledge in his speciality and is expected to
\npossess exceptional competence and skill in his
\nchosen field, where he may even make an
\noriginal contribution in the form of new
\ninnovative techniques or new knowledge to fight
\ndiseases. It is in the public interest that we
\npromote these skills. Such high degrees of
\nskill and expert knowledge in highly
\nspecialised areas, however, cannot be acquired
\nby anyone or everyone.\n<\/p>\n
 26. In the premises the special
\nprovisions for SC\/ST candidates – whether
\nreservations or lower qualifying marks – at the
\nspeciality level have to be minimal. There
\ncannot, however, be any such special provisions
\nat the level of superspecialities.”\n<\/p>\n
 13. A perusal of these whole judgments suggests that
\naforesaid observations were made in the context of  Indra
\nSawney’s case. However, the court had itself made it
\nclear in this judgment that it was not dealing with the
\nquestion of application of reservation in post graduate
\ncourses. Therefore, even this could not be treated to be
\nan authority on the point.\n<\/p>\n
 14. All told, none of these judgments have advanced
\nthe case of petitioners any way. Therefore, their prayer
\nto invalidate the impugned AIIMS resolutions on the
\nstrength of observations made therein which had not
\nfructified into any directions\/order was not liable to be
\ngranted. We also notice that none of the case cited
\nexcept  Indra Sawhney’s case related to employment and,
\ntherefore, it was rather far fetched to overstretch these
\nto conclude that rule of reservation could not be applied
\nto speciality an super speciality posts.\n<\/p>\n
 15. It may as well be that Government was not applying
\nits reservation policy to certain services\/posts\/
\ninstitutions like III, BARC, etc. but that it was its own
\nprerogative to do so as held by the Supreme Court in  State
\nof Punjab v. Dayanand Medical College<\/a> 2001 (VIII) AD SC
\n445 and to exempt services and posts from reservation.
\nPetitioners could not catch at straws to draw any analogy
\nfrom that the seek such exemption from the court.\n<\/p>\n
 16. We accordingly hold that for the present, nothing
\ncame in the way of respondents 3 to 5 to apply reservation
\nrule for making regular appointment to the post of
\nAssistant Professor and that none of the judgments of the
\nSupreme Court including in  Indra Sawhney’s case had imposed
\nany bar or prohibition in this regard.\n<\/p>\n
 17. Petition is accordingly dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Faculty Association Of All India … vs Union Of India (Uoi) And Ors. on 26 November, 2001 Equivalent citations: 2002 (63) DRJ 807 Bench: B Khan, S Aggarwal JUDGMENT Khan, (J) 1. Merit not reservation is the battle cry again and the question raised this time in this petition is whether reservation […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-114649","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nFaculty Association Of All India ... vs Union Of India (Uoi) And Ors. on 26 November, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/faculty-association-of-all-india-vs-union-of-india-uoi-and-ors-on-26-november-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Faculty Association Of All India ... vs Union Of India (Uoi) And Ors. on 26 November, 2001 - 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