TMI Blog2004 (5) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... roop Singh, Addl. Adv. General for State of Punjab, Kuldip Singh, Raj Kumar Pandey, Jatinder Kumar Bhatia, Sandhya Goswami, H.C. Kharbanda, Subramonioum Prasad, Gopal Singh, Anurag Sharma, Navin Prakash, Tara Chandra Sharma, Neelam Sharma, Sunita Sharma, V.G. Pragasam and M.N. Shroff, Advs. ORDER 1. Several applications have been filed seeking clarifications in, and/or directions for implementing, the judgment of this Court dated November 4, 2003 in W.P.(C) No. 29 of 2003 - Saurabh Chaudri and Ors. v. Union of India and Ors. and connected cases (since reported as: AIR2004SC361 ). 2. The issue arising for decision was: whether any reservation, be it based on residence or on institutional preference, is constitutionally permissible in PG courses of study. The conclusions arrived at by the Court may briefly be summed up as under:- (1) All-India quota of PG seats should be 50% (instead of 25% as prevailing hitherto) which should be filled up by common entrance test. (2) The original scheme as framed by this Court in Dr. Pradeep Jain's case (1948) 3 SCC 654 should be continued unless replaced by a Central Legislation in preference to the scheme laid down by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applications seeking admissions against 25% seats. The law has been settled by the Constitution Bench of this Court through its judgment dated November 4, 2003. However, this Court has nowhere in its judgment made the declaration of law applicable to the process of admission which had already commenced. Indeed, there is no direction made to the contrary either, i.e., as to the prospective applicability of the judgment and prospective overruling of the decision of this Court in Dr. Dinesh Kumar's case (supra). This has prompted the several applications being filed and the position, therefore, needs to be clarified so as to clear the doubts. 5. In our opinion, it would be appropriate to hold and direct the decision in Dr. Saurabh Chaudri's case being made applicable only prospectively and thus exclude from the operation thereof the process of admission which had already commenced and was nearing finalisation when the judgment came to be pronounced. 6. Accordingly, it is directed that the allotment of seats under All-India quota, the process as to which had commenced pursuant to the advertisement dated September 16, 2003 shall remain confined to 25% only. As a conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the basis of institutional preference should not in any even exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis. [Emphasis supplied] 12. The said decision was modified by this Court in Dr. Dinesh Kumar and Ors. (II) v. Motilal Nehru Medical College, Allahabad and Ors. [1986]3SCR345 stating: ...We therefore agree with the Government of India that the formula adopted by us in our main judgment dated June 22, 1984 (Dr. Pradeep Jain v. Union of India, (1984)IILLJ481SC for determining the number of seats which should be made available for admission on the basis of All India Entrance Examination should be chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the writ petitioners, for a direction upon the respondents not to take admission of the students pursuant to or in furtherance of the results published by the Delhi University, however, was heard on 29.4.2003 and the order thereupon was passed on 1.5.2003 directing: Keeping in view the fact that the process of admission is complete and successful students are to join their respective courses of studies on and from 2nd May, 2003, interest of justice will be subserved if the admission of petitioners may be subject to the decision of these petitions. In that view of the matter, we are not inclined to pass any further interim orders. However, the admission of petitioners in Post Graduate Courses shall be subject to the decision in these petitions. 17. It is not in dispute that the Union of India and all the States were parties to the writ petition, and, thus, were aware of the aforementioned orders as also the fact that the judgment in the matter has been reserved. Despite the same All India Institute of Medical Sciences (AIIMS) issued a purported advertisement on 16.9.2003 fixing 25% quota for the students appearing at the All India Admission Test. it failed and/or neglec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore is a pointer to the fact that this Court refused to interfere at that stage having regard to the fact that the admission of the students had already taken place. Despite the same, such admissions were made subject to the result of the writ petition. The parties, therefore, could not have any doubt as regard the fact that the judgment will be implemented in relation to the students who were to take admission in 2004 and onwards. The students appearing at the All India Entrance Examination held by AIIMS or by the State Governments or the Universities, presumably were aware of the said fact. 21. As would appear from one of the interlocutory applications being I.A. No. 12 of 2004 that the students had appeared at both the examinations. The students who evidently did not fare well in All India Test but had fared well in the test held by the States, have filed application for a directions by this Court that the decision in Saurabh Chaudri (supra) be given effect from the academic year 2005-06. The said students submit that the examinations conducted by AIIMS, New Delhi and the one conducted for admission in the State quota are substantially different and the probability of the stu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft of merit. Only in a given situation less meritorious candidates from the minority community can be admitted vis-a-vis the general category; but therefore the modality has to be worked out. For the said purpose de facto quality doctrine may be applied instead of de jure equality as every kind of discrimination may not be violative of the quality clause. (See Pradeep Jain v. Union of India -: (1984)IILLJ481SC ). 25. The aforementioned judgment had been noticed by one of us in Saurabh Chaudri (supra) also. 26. One of us, Lakshmanan, J. observed: The view was approved by this Court in the case of Indra Sawhney v. Union of India. If one looks at this issue in the light of the spirit of the ratios laid down in Preeti Srivasatava v. State of M.P., AIR1999SC2894 and in AIIMS Students Union v. AIIMS, AIR2001SC3262 , one would come to the inevitable conclusions that the constitutional reservations contemplated under Article 15(4) should be kept at the minimal level so that national interest in the achievement of the goal of excellence in all fields is not unduly affected. 27. It was, inter alia, concluded: 4) The institutional preference should be limited to 50% and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination held by AIIMS. 32. Furthermore, by reason of an advertisement alone, the students did not derive any right far less any vested or accrued right. [See Prafulla Kumar Das and Ors. etc. v. State of Orissa and Ors. etc. -: AIR2003SC4506 ] 33. A statute is applied prospectively only when thereby vested or accrued right is taken away and not otherwise. 34. [See S.S. Bola and Ors. v. B.D. Sardana and Ors. -: AIR1997SC3127 ]. A judgment rendered by a superior court declaring the law may even affect the right of the parties retrospectively. 35. This Court recently in Commissioner of Customs, Calcutta and Ors. v. Indian Oil Corporation Ltd. and Anr. [2004]267ITR272(SC) stated the law thus: As is evident from Section 151-A, the Board is empowered to issue orders or instructions in order to ensure uniformity in the classification of goods or with respect to levy of duty. The need to issue such instructions arises when there is a doubt or ambiguity in relation to those matters. The possibility of varying views being taken by the customs officials while administering the Act may bring about uncertainty and confusion. In order to avoid this situation, Section 151-A has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and the States, on the other hand, were parties to the writ petition. They in terms of Article 141 as well as Article 144 of the Constitution of India were bound to implement the judgment. They had enough time to do so. If they had taken any other decision, it would be its own peril. Meritorious students cannot be permitted to suffer therefore. 38. We must notice that it is not a case of the Union of India that the judgment in Saurabh Chaudri (supra) cannot be given effect to even at this stage. If it can be given effect to the court should not issue a direction which would run contrary to the ratio laid down by this Court in the main judgment, particularly when the examinations had been held much after the rendition of the judgment. Asking the court to apply the judgment of this Court with prospective effect would amount to asking for a review and, thus, the same cannot be permitted to be achieved by filing an application for clarification. 39. Application for clarification/modification filed by Union of India is based on wholly wrong premise. A judgment, as is well-known, must be read as a whole. So read it is evident that declaration of law has clearly been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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