Dr. Prerit Sharma vs Dr. Bilu B.S. on 27 November, 2020
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Supreme Court of India
Dr. Prerit Sharma vs Dr. Bilu B.S. on 27 November, 2020
Author: L. Nageswara Rao
Bench: [ Rastogi], [ Gupta], [ N Rao]
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
Civil Appeal No.3840 of 2020
(Arising out of SLP (C) No.12891 of 2020)
DR. PRERIT SHARMA & ORS.
.... Appellant(s)
Versus
DR. BILU B.S. & ORS.
…. Respondent (s)
WITH
Writ Petition (C) No.1299 of 2020
Civil Appeal Nos. 3841-3843 of 2020
(Arising out of SLP (C) Nos.13670-13672 of 2020)
O R D E R
Leave granted in the special leave petitions and the
Writ Petition is admitted.
1. Writ Petition No.20256 of 2020 was filed by Dr. Bilu
B.S., the Respondent No.1. in the appeal arising out of SLP
(C) No.12891 of 2020 in the Kerala High Court seeking
implementation of reservation to 40 per cent of the seats
in Super Specialty Medical Courses for in-service Doctors in
terms of the law laid down by this Court in Tamil Nadu
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Medical Officers Association v. Union of India (2020)
SCC Online P. 699. The said Writ Petition was taken up
along with Writ Petition No.20135 of 2020 filed for the
same relief. By an order dated 05.10.2020, a learned
Single Judge of the Kerala High Court refused to grant stay
of counselling to the 40 per cent seats for in-service quota.
Aggrieved thereby, the first Respondent filed the Writ
Appeal which was allowed by a Division Bench of the High
Court of Kerala by an order dated 07.10.2020. The
Division Bench directed the preparation of a list of
candidates eligible for admission as in-service candidates,
which was to be sent to the Directorate of Medical
Education, New Delhi by 05.00 PM on 08.10.2020. The
Director General, Health Services was directed to consider
the candidates for admission in Super Specialty Medical
Courses in the State of Kerala under in-service quota. The
said order dated 07.10.2020 passed by the Division Bench
of the High Court of Kerala is challenged by the Petitioners
who are post-graduate degree holders in Medicine and who
have qualified the National Eligibility-cum-Entrance Test
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(NEET), 2020 for admission to Super Specialty Medical
Courses for the academic year 2020-2021.
2. Notice was issued by this Court on 27.10.2020 in the
Special Leave Petition filed against the order dated
07.10.2020 passed by the Division Bench of the High Court
of Kerala and on the statement made by Mr. Dushyant
Dave, learned Senior Counsel that the National Medical
Commission on 08.10.2020 decided to postpone the
counselling, and an order of status quo was passed and
the matter was directed to be listed for hearing today.
3. Respondent Nos.1 and 2 in the appeal arising out of
SLP (C) No.13670-13672 of 2020 filed a Writ Petition in the
High Court of Madras seeking a direction to notify 50 per
cent of the vacancies for in-service Doctors for admission
to Super Specialty Medical Courses for the academic year
2020-2021 in the State of Tamil Nadu. When the matter
was listed for hearing, the learned Advocate General for
the State of Tamil Nadu placed GOMS No.462, Health and
Family Welfare (MCA-1) dated 07.11.2020 before the High
Court and submitted that the selection for the Super
Specialty Medical Courses during the academic year 2020-
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2021 shall be conducted by providing 50 per cent
reservation for in-service doctors. The Writ Petition was
disposed of by a learned Single Judge of the Madras High
Court by holding that the relief sought for in the Writ
Petition has already been granted by the State
Government by passing the GOMS No.462 dated
07.11.2020. The said order dated 09.11.2020 is in
challenge before this Court in the appeal arising out of SLP
(C) No.12891 of 2020. Writ Petition (C) No. 1299 of 2020 is
filed by six Doctors who are eligible for admission to Super
Specialty Medical Courses, seeking a direction to
Respondent Nos.2 and 3 therein to conduct the counselling
and admission to the Super Specialty Medical Courses for
the academic year 2020-2021 as per the information
bulletin and not to grant any reservation to in service
Doctors.
4. We have heard Mr. Dushyant Dave and Mr. Shyam
Divan learned Senior Counsel appearing for the Appellant-
Petitioners in the Appeals and the Writ Petition. We have
also heard Mr. Vikas Singh learned Senior Counsel for the
National Medical Commission, Mr. Sanjay Jain, learned
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Additional Solicitor General appearing for the Union of
India, Mr. Jaideep Gupta, learned Senior Counsel for the
State of Kerala, Mr. C.S. Vaidhyanathan and Mr. V. Giri,
learned Senior Counsel for the State of Tamil Nadu, Mr. P.
Wilson, learned Senior Counsel for the Respondents in the
Appeal arising out of SLP (C) No.13670-13672 of 2020, Mr.
George Varghese Perumpallikuttiyil, Advocate for the first
Respondent in Appeal arising out of SLP (C) No.12891 of
2020.
5. At the outset, Mr. Dushyant Dave, learned Senior
Counsel brought to our notice the affidavit filed on behalf
of the State of Kerala in which it is mentioned that it is not
possible to implement the direction issued by the High
Court in its order dated 07.10.2020 for the current
academic year i.e. 2020-2021. It has been stated in the
said affidavit that there are 140 postgraduate Super
Specialty seats in the Government Medical Colleges and
RCCs in the State of Kerala. Rank list of the candidates
who qualified in the NEET PGSS 2020 shall be prepared by
the National Board of Examinations on the basis of merit.
As the information bulletin for the entrance examination
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for admission to Super Specialty Medical Courses has
already been issued in which no reservation has been
provided for in-service candidates, it is practically
impossible to introduce any new reservation norms for the
current academic year i.e. 2020-2021. On the basis of the
said affidavit filed by the State of Kerala, Mr. Dave
submitted that the admission to Super Specialty Medical
Courses for the year 2020-2021 should be completed
without any reservation to the in-service doctors and the
larger questions that are raised in the appeal can be
decided at the later stage.
6. Mr. Jaideep Gupta, learned Senior Counsel appearing
for the State of Kerala stated that it might not be possible
to implement the reservations for in-service candidates at
this stage for the academic year 2020-2021 as the
admission process has already commenced. However, he
stated that the legislation made by the State providing for
reservation to in-service doctors has been upheld by this
Court and the State has the power to provide reservation
to in service Doctors in super specialties. Mr. George
Varghese Perumpallikuttiyil supported the order passed by
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the High Court by arguing that the Kerala Medical Officers
Admission to Postgraduate Courses under Service Quota
Act, 2008 and the Rules made thereunder provided for a
service quota to in-service doctors for admission to Super
Specialty Courses and Postgraduate Courses. He
submitted that the said Act was upheld by this Court in its
judgment in Tamil Nadu Medical Officers Association
v. Union of India (supra). Responding to the stand taken
by the State of Kerala, Mr. Perumpallikuttiyil argued that
administrative inconvenience cannot be a ground to
interfere with the order passed by the High Court directing
implementation of reservation to in-service doctors in
accordance with the Kerala Medical Officers Admission to
Postgraduate Courses under Service Quota Act, 2008. He
stated that this Court should not interfere with the order
passed by the High Court as it would result in immense
loss to the in-service doctors in the State of Kerala.
7. In so far as the cases relating to the State of Tamil
Nadu are concerned, Mr. Dushyant Dave and Mr. Shyam
Divan, learned Senior Counsel submitted that the
judgment of the Constitution Bench in Tamil Nadu
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Medical Officers Association v. Union of India (supra)
does not deal with the admissions to Super Specialty
Medical Courses. They contended that it is settled law
that there cannot be any reservation of any kind in
admission to Super Specialty Courses. It was argued by
them that the information bulletin for admission to Super
Specialty Courses for the academic year 2020-2021 was
issued on 03.08.2020. The NEET Super Specialty
Examination was conducted on 15.09.2020 and the results
were declared on 25.09.2020. Counselling was scheduled
to commence on 08.10.2020. They took us through the
information bulletin to show that it was made clear to the
candidates that there shall be no reservation for admission
to Super Specialty Courses. They relied upon the
observations made by the Constitution Bench in Tamil
Nadu Medical Officers Association v. Union of India
(supra) that the judgment shall operate prospectively.
They further contended that the Rules of the game cannot
be changed mid-stream and no reservation can be
provided for this academic year i.e. 2020-2021 as the
procedure for selections for admission to Super Specialty
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Medical Courses commenced a long time back. Though,
the learned Senior Counsel made submissions on the
correctness of some findings of the Constitution Bench in
Tamil Nadu Medical Officers Association v. Union of
India (supra), we are not inclined to entertain such
submissions at this stage. We have made it clear to them
that arguments are heard only for the purpose of granting
interim relief.
8. Mr. Sanjay Jain, learned Additional Solicitor General
supported the submissions made on behalf of the
Petitioners that it has been clearly laid down by this Court
in Jagdish Saran v. Union of India (1980) 2 SCC 768 ,
Dr. Pradeep Jain & Ors. v. Union of India & Ors.
(1984) 3 SCC 654, Dr. Preeti Srivastava and Another
vs. State of M.P. and Others (1999) 7 SCC 120 and
Indira Sawhney & Ors. v. Union of India & Ors. (1992
Supp. (3) SCC 217) that there can be no reservation in
Super Specialty Courses and that the Constitution Bench
was only concerned with the postgraduate courses in
Tamil Nadu Medical Officers Association v. Union of
India (supra). He submitted that there is no reference to
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any cogent material on the basis of which reservation was
provided to in-service doctors by the Government order
dated 07.11.2020. One of the directions given in GOMS
No.462 dated 07.11.2020 is to post the in-service
candidates in hospitals in rural or remote or difficult areas
which even according to Mr. Vikas Singh, learned Senior
Counsel for National Medical Commission is not a valid
reason for providing reservation to in-service doctors in the
Super Specialty Medical Courses. He submitted that it is
impossible to provide reservation for in-service Doctors for
this year as the admission process is at an advance stage.
9. Mr. C.S. Vaidhyanathan and Mr. V. Giri learned Senior
Counsel appearing for the State of Tamil Nadu argued that
a Constitution Bench considered the issues that are raised
by the learned counsel for the petitioners in Tamil Nadu
Medical Officers Association v. Union of India (supra).
According to them, it has been clearly laid down by this
Court in the said judgment that the States have power to
provide reservation for in-service candidates in
postgraduate courses. The learned Senior Counsel
stressed on the requirement of Doctors having Super
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Specialty qualifications to cater to the needs of the
patients in the rural areas. It was submitted by them that
there are 369 seats in Super Specialty Medical Courses in
the State of Tamil Nadu and on the basis of statistics
placed before this Court they argued that around 70 per
cent of the Doctors who are trained in the State of Tamil
Nadu in the Super Specialty Medical Courses do not serve
in the State of Tamil Nadu. They submitted that huge
amount is expended on each Doctor for their training in
the Super Specialty courses and the people of State of
Tamil Nadu do not get benefit of their services. Whereas,
the in-service doctors have an obligation to serve the State
of Tamil Nadu till the date of their retirement. The
Constitution Bench in its judgment in Tamil Nadu
Medical Officers Association v. Union of India (supra)
only saved the admissions which have already been made.
As the admissions for the year 2020-2021 have not been
completed, the learned Senior Counsel for the State of
Tamil Nadu submitted that the said judgment has to be
implemented for admissions to the academic year 2020-
2021. As it is well settled law that reservation can be
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provided by an executive order taking into account the
needs of the State, GOMS No.462 dated 07.11.2020 is
valid.
10. Mr. P. Wilson, learned Senior Counsel appearing for
the Respondent supported the submissions made on
behalf of the State of Tamil Nadu and stressed on the need
for reservation to in-service Doctors in Super Specialty
Medical Courses. Mr. Wilson argued that no new law has
been laid down by this Court in its judgment in Tamil
Nadu Medical Officers Association v. Union of India
(supra). This Court categorically held in K. Duraisamy
and another v. State of T.N: (2001) 2 SCC 538 that
reservation is permissible in Super Specialty Medical
Courses which was reiterated in and Modern Dental
College and Research Centre & Ors. v. State of
Madhya Pradesh & Ors. (2016) 7 SCC353. Mr. Wilson
submitted that the prospectus itself is contrary to the
earlier judgments of this Court. Even without following
the judgment of this Court in Tamil Nadu Medical
Officers Association v. Union of India (supra), it was
incumbent on the part of the National Medical Commission
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and the Union of India to implement the law laid down by
this Court by providing for reservation for in-service
doctors in Super Specialty Medical Courses.
11. Though, the learned counsel appearing for the
Petitioners made an attempt to argue that the judgment of
the Constitution Bench in Tamil Nadu Medical Officers
Association v. Union of India (supra) requires
reconsideration, we prevented them from doing so as we
made it clear that the hearing today is only for the purpose
of deciding whether the counselling for Super Specialty
Medical Courses for the year 2020-2021 should be held
without providing reservations for in-service doctors.
12. The information bulletin for NEET-SS 2020 was issued
on 03.08.2020. The examination date was scheduled to be
held on 15.09.2020, the results of which were to be
declared on 25.09.2020. We are informed that the
examination was held as per schedule and results were
declared on the date fixed. It was made clear in point
5.16 of the bulletin that there shall be no reservations of
seats for Super Specialty DM/MCH Courses. The Medical
Counselling Committee issued the counselling scheme for
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100 per cent All India Quota for NEET Super Specialty
DM/MCH DMB 2020-2021 in which it was made clear that
there shall be no reservation for Super Specialty Medical
Courses while referring to the judgment by this Court in
Dr. Preeti Srivastava and Another vs. State of M.P.
and Others (supra) and Dr. Sandeep Sadashivrao v.
Union of India & Ors. (2016) 2 SCC 328. The
counselling for admission to Super Specialty Medical
Courses was postponed. The State of Tamil Nadu issued
GOMS No.462 dated 07.11.2020 by which a decision was
taken to reserve 50 per cent of the Super Specialty seats
in Government Medical Colleges in the State of Tamil Nadu
for in-service candidates. The basis for the said order is
the judgment of this Court in Tamil Nadu Medical
Officers Association v. Union of India (supra) and the
opinion of the learned Advocate General for the State of
Tamil Nadu.
13. Kerala Medical Officers Admission to Postgraduate
Courses under Service Quota Act, 2008 provides for 40 per
cent reservation for in-service doctors in admission to the
Super Specialty Medical Courses. Admittedly, the Act was
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not implemented for the years 2017-2019. By the
impugned order, the High Court directed the concerned
authorities to carry out the provisions of the Act and
provide reservation to in-service Doctors. However, the
State of Kerala has shown its inability to implement the
said Act for admission to the Super Specialty Medical
Courses for the current academic year i.e. 2020-2021.
14. As stated supra, several submissions ranging from
the correctness of the judgment of this Court in Tamil
Nadu Medical Officers Association (supra) to the
applicability of the judgment of super speciality courses
have been made on behalf of the Petitioners. Other points
pertaining to permissibility of reservations for admission to
Super Specialty courses in view of the earlier judgments of
this Court and interpretation of Regulation 9 of the 2017
Regulations framed by the MCI are to be considered in
detail.
15. The process for admissions to Super Specialty Medical
Courses started on 03.08.2020 and it was made clear to all
the competing candidates that there shall be no
reservation to Super Specialty Medical Courses. The
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Government order issued by the State of Tamil Nadu on
07.11.2020 reserving 50 per cent seats for in-service
doctors would be detrimental to the interests of the
meritorious Doctors as 50 per cent of the available seats in
the State of Tamil Nadu in Super Specialty Medical Courses
will not be available to them. We are not in agreement
with the submission of Mr. Vaidyanathan and Mr. Giri that
nobody will be prejudiced if the Government Order is given
effect to. There will be reduction of 50% of seats in Super
Specialty courses in Tamil Nadu if the Government Order is
carried out, which is detrimental to their chances of
admission. Admittedly no reservation for in-service
Doctors was implemented since 2016. As the admission
process is at the final stages, we cannot permit reservation
for in-service Doctors for this year.
16. We make it clear that we have not expressed any
opinion on the validity of GOMS No.462 of 07.11.2020.
We direct that the counselling for admission to Super
Specialty Medical Courses for the academic year 2020-
2021 shall proceed on a date to be fixed by the competent
authority without providing for reservations to in-service
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doctors for the academic year 2020-2021. We reiterate
that the above direction would be operative only for the
current academic year i.e. 2020-2021.
17. List the Appeals and the Writ Petition for hearing in
February, 2021.
……………………………..J.
[L. NAGESWARA RAO]
…………………………….J.
[HEMANT GUPTA]
…………………………….J.
[AJAY RASTOGI]
New Delhi,
November 27, 2020
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