Dr.(Mrs) Rituparna Barooah vs Union of India

Mr. Dinesh Maheshwari, C.J. (Oral) - The petitioner, a faculty member of North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences (�NEIGRIHMS�), has filed this writ petition with the grievance that the respondents were not allowing the benefit of reservation of seats for the children of faculty members of NEIGRIHMS out of the MBBS seats allocated from the Central Pool to the State of Meghalaya; and, while alleging serious prejudice and loss to herself and to her daughter who is desirous of pursuing the MBBS Course, has prayed for the following reliefs:-

"In the premises aforesaid, it is prayed that Your Lordships may be pleased to call for records, issue a Rule calling upon the respondents to show cause as to why a writ of mandamus should not issue directing the respondents to allocate one MBBS seat to Miss. Sagarika Dawka, the daughter of the petitioner, out of central pool MBBS seats allocated to State Government in terms of Office Memo No.U.12012/9/2005-NE (Pt.I)/ME-IV dated 28.4.2008 for the academic session 2015-2016 and on cause or causes being shown and after hearing the parties be pleased to make the Rule absolute by directing the respondents to allocate one MBBS seat to Miss. Sagarika Dawka, for the respondents the daughter of the petitioner, out of central pool MBBS seats allocated to State Government for the academic session 2015-2016 and/or may pass such further or other order or orders as Your Lordships may deem fit and proper.

And the petitioner as in duty bound shall ever pray."

The petitioner has claimed entitlement to an MBBS seat for her daughter out of the seats allocated to the State of Meghalaya from the Central Pool by the Government of India on the basis of Office Memo No.U.12012/9/2005-NE (Pt.I)/ME-IV dated 28.04.2008 issued by the ME-IV Section, Ministry of Health and Family Welfare, Government of India and addressed to the Health and Medical Education Department, Government of Meghalaya; and Memo No.U-14014/3/2008/ME-IV dated 07.08.2008 whereby, 22 (twenty two) seats for MBBS Course and 2 (two) seats for BDS Course were allocated to the State of Meghalaya in different medical colleges in the country out of the Central Pool. The relevant contents of the aforesaid Memo dated 28.04.2008 are as under:-

"I am directed to refer to the subject mentioned above and to say that it has been decided that from the academic year 2008-09, out of MBBS seats allocated from the Central Pool to Meghalaya State, two MBBS seats will be specifically reserved for the children of faculty members of NEIGRIHMS, whose domicile is not Meghalaya and have put in a minimum service of two years. In case there is no suitable/eligible candidate available, these seats will be utilised by the State Govt. of Meghalaya.

This issues with the approval of Secretary (Health & F.W.)."

In the other Memo dated 07.08.2008, while indicating the allocation of MBBS and BDS seats from the Central Pool quota to the State of Meghalaya for the academic session 2008-09 in different medical colleges in the country, it was, of course, stated that out of the seats allocated for MBBS Course, 2 (two) seats were reserved for the children of faculty members of NEIGRIHMS and in case eligible candidates were not available, those seats could be utilised for other candidates of Meghalaya State. The said note in the Memo dated 07.08.2008 reads as under:-

"Out of twenty two seats Two MBBS seats are reserved for the children of faculty members of NEIGRIHMS. In case eligible candidates are not available, these seats may be utilised for the candidates of Meghalaya State."

The petitioner has asserted that after completing her MBBS Course in the year 1989 from Gauhati Medical College, she completed the course of M.D. (Physiology) in the year 2004; and, being the mother of a daughter who was interested in pursuing the MBBS course and considering that the Government of India had provided for reservation of MBBS seats for the children of faculty members of NEIGRIHMS, she was attracted to join NEIGRIHMS; and therefore, while leaving aside other more prospective and lucrative job offers, she applied for the post of Assistant Professor, Physiology at NEIGRIHMS; and after due selection process, was initially appointed as Assistant Professor Physiology and joined as such on 24.07.2008. The petitioner has also pointed out that by the order dated 08.03.2013, she was appointed as Associate Professor Physiology and has, thus, continued to serve for more than seven years as faculty member at NEIGRIHMS. The petitioner has further pointed out that her daughter, who was a student of Delhi Public School, Guwahati, passed her Senior School Certificate Examination in the year 2015 with 89.80% marks and she was intending to pursue the MBBS Course under the seats reserved for the children of the faculty members of NEIGRIHMS. According to the petitioner, to the best of her knowledge, her daughter was the lone candidate from NEIGRIHMS.

The petitioner has stated her grievance in the manner that she had apprised the Deputy Director, NEIGRIHMS on 28.07.2014 that her daughter, who was appearing in Class XII examination in the year 2015, would like to pursue her medical studies under the seats reserved for the children of faculty members of NEIGRIHMS and followed it up with another letter dated 17.03.2015, but without any response; and even her representation dated 08.06.2015 to the Director, NEIGRIHMS did not evoke any response. The petitioner has also referred to the case of another faculty member of the department of Microbiology, whose application for admission of his son on such a reserved seat for the children of the faculty members of NEIGRIHMS did not result in the desired benefit. The petitioner has contended that under the Memos aforesaid, when there was a clear stipulation for reservation of 2 (two) seats for the children of the faculty members of NEIGRIHMS, she had a legitimate expectation of such benefits and denying of the same was entirely illegal and unjustified.

This matter was initially taken up in the month of August, 2015 and, in view of the aforesaid Memos dated 28.04.2008 and 07.08.2008, a Division Bench of this Court found prima facie that out of the seats allocated to the State of Meghalaya in the Central Pool, 2 (two) seats were to remain reserved for the children of faculty members of NEIGRIHMS; and found no satisfactory explanation from the State Government as to why the faculty members of NEIGRIHMS were being denied of this benefit. In the given circumstances, the Central Government was called upon to explain. In response, the Deputy Secretary to the Government submitted an affidavit on behalf of Union Health Secretary that such a sub-quota for the children of faculty members of NEIGRIHMS was not in force from the academic year 2012-2013 while stating, inter alia, as under:-

"2. That with regard to the issue of allocation of Central Pool MBBS seats for the wards/children of Faculty of North Eastern Indira Gandhi Regional Institute Health and Medical Sciences, Shillong (in short �NEIGRIHMS�), I say that from academic year 2008-09 to 2011-12, out of MBBS/BDS seats allocated to Meghalaya State, two MBBS seats were reserved for wards/children of faculty of NEIGRIHMS, Shillong. From the academic year 2012-13 and onward, the allocation of central pool MBBS/BDS seats were made without sub-quota, with the approval of the competent authority of Minister of Health and Family Welfare. It is stated that the purpose of allocation of central pool MBBS/BDS seats is to strengthen the deficit States/UTs who are not having medical/dental colleges of their own and there is no provision for creation of sub-quota of seats in a State/UT, which are having a medical college like NEGRIHMS. It is prerogative of concerned State/UT to select their candidates against the central pool MBBS/BDS seats.

Under such circumstances, sub-quota is not in force."

However, on 15.09.2015, the Division Bench of this Court found that the office nothings as placed before it for perusal were not constituting the considered decision of the competent authority and, finding no valid explanation for denying the sub-quota to the faculty members of NEIGRIHMS, directed the Union Health Secretary to remain present in the Court with the records on the next date; and one such seat in the Central Pool was ordered to be kept vacant until decision of this writ petition. The other aspects relating to the proceedings in this petition need not be dilated upon for being not relevant for the present purpose. Suffice it to notice that later on, an affidavit dated 09.10.2015 of the Secretary to the Government of India in the Ministry of Health and Family Welfare was filed in this case. Ultimately, the personal appearance of the Secretary concerned was dispensed with until further orders with the condition that the officer as deputed by the learned Secretary would appear on his behalf. Thereafter, the matter was adjourned from time to time and has come up for hearing now.

It is noticed that the reasons for creating of a Central Pool of MBBS/BDS seats for the residents of some of the States/Union Territories; and the reasons for earlier providing for a sub-quota for the children of the faculty members of NEIGRIHMS; and the reasons for review and abolition of such a sub-quota have all been specified in the categorical and to-the-point affidavit dated 09.10.2015 of the Secretary to the Government of India in the Ministry of Health and Family Welfare, the relevant contents whereof are reproduced for ready reference as under:-

"2. That there are a number of States/Union Territories which do not have medical/dental colleges of their own. Majority of such States are in the North-Eastern Region. In order to meet the requirements of these States/UTs and some Central Government Ministries/Departments to fulfil national and international obligations, a Central Pool of MBBS/BDS seats is maintained by the Ministry of Health & Family Welfare. This scheme is in operation since 1949. A list of States/UTs/Ministry/Departments benefited from Central Pool Scheme along with justification for allotment of Central Pool MBBS/BDS seats to them is at Annexure-1.

According to this scheme, Ministry of Health & Family Welfare makes a request every year to the State Govts./UTs having medical/dental colleges of their own and certain Central Govt. medical institutions like AIIMS, LHMC, VMMC etc. seeking their contribution of MBBS/BDS seats to the Central Pool on voluntary basis. It is, therefore, up to them to contribute or refuse the same.

The seats collected in the Central Pool by this Ministry are then allocated to various States/UTs which do not have medical/dental colleges or are deficient in medical education (whose capacity of MBBS/BDS is either not there or is low) and to certain other categories namely Ministry of Home Affairs, Ministry of External Affairs, Ministry of Defence, Cabinet Sectt., M/o Human Resource Development, etc. The allocation letters also include a set of guidelines for the use of beneficiaries indicating the eligibility, merit and method for selection of candidates against Central Pool seats at the time of nomination (Annexure-2). The beneficiaries States/UTs and Central Govt. Departments select candidates against Central Pool seats either on the basis of State level entrance examination or on the basis of All India Pre-Medical Test conducted by Central Board of Secondary Education, New Delhi.

As per the guidelines of this Ministry dated 9.12.1986, these seats are reserved for:

(i) Permanent residents of the State/UT concerned;

(ii) The employees of the State/UT Government concerned;

(iii) The employees of the Central/other State/UT Government on deputation to the State/UT concerned; and

(iv) The employees of the Central/other State/UT Govt. posted in and having their headquarters within the State/UT concerned.

North Eastern Indira Gandhi Regional Institute of Health & Medical Sciences (NEIGRIHMS), Shillong, Meghalaya is an autonomous institute established for strengthening the medical education facilities for the North Eastern States namely Arunachal Pradesh, Manipur, Meghalaya, Tripura, Mizoram, Nagaland and Sikkim.

During the academic year 2008-2009 as per the request made by the NEIGRIHMS, Shillong a provision for two MBBS seats out of Central Pool MBBS/BDS was made vide the Ministry�s letter dated 28.04.2008. It will be evident from the said letter itself that the said order was made with the approval of the then Secretary, Ministry of Health & Family Welfare. The practise continued till 2011-12.

The Central Pool scheme was reviewed with the due approval of the then Union Minister of Health and Family Welfare in March 2012 following the judgment dated December 23, 2011 of the Hon�ble High Court at New Delhi in WP(C) 4294/2011, 4299/2011, 7103/2011 and 4290/2011 ordering the review of the entire Central Pool scheme. While reviewing the same, apart from other changes, the allocation of seats for the State of Meghalaya was reduced from 22 to 21 for 2012-13 and the provision of two seats for the wards of faculty members of NEIGRIHMS was abolished. The petitioners in that case had also filed an appeal in the Hon�ble Supreme Court where the Govt. placed the entire Central Pool scheme before the Hon�ble Supreme Court which upheld it by a judgment and order dated September 05, 2012 in Civil Appeal No.6304-6305 of 2012.

Accordingly, the letter of allocation of MBBS/BDS seats under the Central Pool scheme for the academic year 2012-2013 was issued without reserving two seats for the wards of faculty members of NEIGRIHMS. The above decision namely of not having a sub-quota within a State Quota has remained in operation in the State of Meghalaya in the years 2012-13 to 2015-16.

From the letters of allocation of MBBS/BDS seats under the Central Pool for academic year 2013-2014 and 2014-2015 also it will be evident that no such quota was allotted for the wards of faculty members of NEIGRIHMS.

It is pertinent to mention that the office noting was prepared in response to the letter issued by the Director, NEIGRIHMS letter dated NEIGRIHMS-Estt-1/110/2012 dated 12.08.2015 whereby the said Director requested the Ministry to take up the matter for implementation of the notification of the Central Government dated 28.04.2008.

By the said office letter dated 7.09.2015, no new decision to abolish the said sub-quota was made. Only the stand of the Ministry regarding these two seats taken as long back as in the year 2012, was reiterated and clarified. Thus that letter was classificatory in nature. The allocation under the Central Pool for 2015-16 was separately done with the approval of the Union Minister, Health & Family Welfare.

The rationale for the abolition of sub-quota to NEIGRIHMS, Shillong inter alia, is as follows:-

(i) In no other State or Central Government Quota a separate sub quota for wards of faculty of medical colleges/institutions was provided.

(ii) Wards of faculty of NEIGRIHMS were also to be considered along with residents of the State; more specifically in case of NEIGRIHMS as employees of Central Government posted in and having headquarters within the State/UT concerned.

(iii) In case the decision to have a sub quota within a State Quota subsists, demand for similar sub-quota may come from the other North Eastern States having Central Institutes like RIMS, Imphal, Manipur; RIPAN in Aizwal, Mizoram etc."

As regards the Central Pool quota, it is not in dispute that the Delhi High Court considered the matter in sufficient detail in the order dated 23.12.2011 as passed in a batch of petitions led by WP(C) No. 4294 of 2011. Therein, even while not accepting the challenge to the Central Pool, particularly in view of the decisions of the Supreme Court, the Delhi High Court indicated the desirability on the part of the Government to give this Central Pool a re-look, to the extent of nomination of seats required to be reserved. The matter was, thereafter, considered by the Hon�ble Supreme Court in the case of Bhawna Garg and Anr. v. University of Delhi and ors., AIR 2012 SC 3299, in the appeals arising out of the aforesaid common order dated 23.12.2011.

In Bhawna Garg�s case (supra), in the first place, Hon�ble Supreme Court examined the policy decision of the Central Government in reserving the seats by way of Central Pool and noticed from the affidavit filed on behalf of the Central Government that there were a number of States or Union Territories, mostly in North Eastern Region, which were not having Medical/Dental colleges of their own; and in order to meet the requirements of those States/Union Territories and for some Central Government Ministries/Agencies and to fulfil some national and international obligations, the Central Pool was being maintained. The Supreme Court held that such a policy of the Central Government, to provide for and maintain a Central Pool, being aimed at achieving a particular object, cannot be said to be unconstitutional while observing as under:-

"The Central Government has, therefore, reserved 260 seats in the MBBS course for the Central Pool and has classified the sources from which admissions were to be made to these 260 seats on geographical and other basis. It has not been shown by the appellants that the classification of the sources from which admission are to be made has no rational nexus with the object sought to be achieved by the policy of the Central Government. Hence, the validity and constitutionality of the policy of the Central Government to reserve some seats on geographical and some other rational basis cannot be questioned. However, reservation of as many as 260 seats may not be justifiable in the changed circumstances discussed hereinafter in this judgment."

However, the Hon�ble Supreme Court thereafter, dilated upon the basic norms of merit consideration in such admissions, and laid down that the selection of the candidates seeking admission on seats reserved in Central Pool is also required to be based on merit amongst the candidates who have applied from that source; and the beneficiary States/ Union Territories etc. were directed to make the selection strictly on the basis of merit. Thus, while putting the merit as being the vital and rather paramount consideration even for the purpose of admission on such Pool seats, and while also emphasising on the requirement for a re-look over the seat allocations in the Pool, the Hon�ble Supreme Court concluded on the matter with the following observations and directions:-

"18. In the result, we:

(i) hold that the Bulletin insofar as it reserves 30 seats in the MBBS course in LHMC for NGOI is not ultra vires the Constitution and in so far it exempts candidates to be admitted to these 30 seats from taking the DUMET is not ultra vires the MCI Regulations.

(ii) hold that the provisions of Regulation 5 of the MCI Regulations for selection for admission to the MBBS course solely on the basis of merit have to be followed by the beneficiary States/Union Territories/Ministries /Agencies while selecting the students who apply for the seats reserved or allocated for the concerned State/Union Territory/ Ministry/Agency.

(iii) hold that even if merit of the applicants may not have been determined strictly in accordance with Regulation 5 of the MCI Regulations by the beneficiary States/Union Territories/Ministries/Agencies while selecting some of the students for the seats reserved for NGOI for the academic session 2011-2012, we are not inclined to disturb their admissions in exercise of our powers under Article 142 of the Constitution.

(iv) direct that with effect from the academic year 2012-2013, no admission will be made to any of the seats reserved for NGOI in LHMC, MAMC and UCMS of any student who has failed in the DUMET.

(v) direct that for the academic year 2013-2014 onwards, the candidate applying for seats reserved for NGOI have to obtain the minimum marks in the All India National Eligibility-cum- Entrance Test for admission to the MBBS course as provided in the amended MCI Regulations and the admissions will be made on merit after calling for applicants through advertisement in the newspapers having wide circulation.

(vi) direct that the Central Government will make a review of the Government and private medical colleges which have been established in the meanwhile in the States/Union Territories to which seats are being allocated under the quota for NGOI and if they find that additional intake capacity for the MBBS course has been created in these States/Union Territories, the Central Government will take a fresh decision on the number of seats in the MBBS course to be reserved for NGOI for these States with effect from the academic year 2013-2014.

(vii) direct that if there are vacant seats in the quota for NGOI in the LHMC and MAMC for the academic year 2011-2012, the petitioners will be given admission to these vacant seats on the basis of their merit in DUMET 2011-2012 during the academic year 2012-2013."

Thus, evident it is that even while not disapproving the policy of the Central Government to reserve some seats in the medical colleges on geographical and other rational basis, the Hon�ble Supreme Court has put the merit as being the frontal and paramount consideration even for this nature of special quota i.e., Central Pool. In the face of clear dictum of the Hon�ble Supreme Court, any special treatment by way of a sub-quota in such a Central Pool is obviously ruled out; and in any case, a provision for special and beneficial treatment only to the children of the faculty members of one institution i.e., NEIGRIHMS cannot be countenanced.

True it is that to start with, from the year 2008-2009, a sub-quota for the children of the faculty members of NEIGRIHMS was provided out of the seats allocated to the State of Meghalaya in the Central Pool but then, such a sub-quota within the quota (i.e., the Central Pool) obviously carried the potential of discrimination and prejudice to the meritorious candidates of the State of Meghalaya. We find justified the submissions made in the affidavit filed by the Secretary to the Government of India that such a sub-quota was likely to result more in discrimination and without any nexus to the object sought to be achieved.

It is noticed that after review, the allocation of seats for the State of Meghalaya has been reduced from 22 to 21 and at the same time, the provision of 2 (two) seats for the children of the faculty members of NEIGRIHMS has been done away with. In an overall comprehension of the matter, we are unable to find any fault in the Government dispensing with the sub-quota for the children of the faculty members of NEIGRIHMS. This is apart from the fact that the matter is essentially that of a Government policy that already stands conditioned by the dictum of the Hon�ble Supreme Court and there is hardly any scope or reason for this Court to interfere in such a policy matter.

In view of the above, this writ petition fails and is, therefore, dismissed.