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

9 | Page
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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