Khan, (J)
1. Merit not reservation is the battle cry again and the question raised this time in this petition is whether reservation was inapplicable to speciality and super speciality, faculty posts in All India Institute of Medical Sciences (AIIMS).
2. It all seems to have started in 1994 when R3-4 initiated selection process for appointment to entry level faculty post of Assistant Professor in AIIMS, a speciality post and provided for reservation up to 45.5% for SC/ST and OBC candidates in different ratio. Petitioners, led by Faculty Association of Institute, a registered body engaged in promotion of professional activity and efficiency of the Institute faculty, opposed this. They made representations to the competent authority pleading for exemption of the post from reservation but failed to elicit any response. They then filed his petition asking for quashing of resolutions dated 11.1.83 and 27.5.94 passed by respondent No. 3 applying reservation policy for appointment to the post and for exemption of speciality and super speciality faculty posts from such reservation.
3. Rule was issued in this petition by the court on 15.11.94 and an interim order passed restraining respondents from giving effect to proposed reservation. Respondents withheld the selection process for regular appointment to the post and instead resorted to adhoc appointments in patches. As a result, regular appointment to the post of Assistant Professor has remained stalled for the last seven years or so and meanwhile, adhoc appointees have been claiming their own pound of flesh asking for regularisation of their services in a counter petition which is being dealt with separately.
4. Petitioner''s case, in nutshell is that AIIMS was set up to impart high quality education and provide specialised and super specialised treatment and for conducting high standard research in medical science. It had grown in strength over the years and had kept pace with rapid technological developments in medical science and its new centres and departments for specialised diagnostic and therapeutic facilities required a continuous inflow of most talented medical professionals from within India and abroad. The Institute, Therefore, could not compromise on its high standards and it would be disastrous to expose it to vagaries of reservation at the speciality and super speciality level which would keep away the talented and meritorious scientists and technologists from it, in turn, defeating the very purpose for which it was set causing a national loss in the process. Support for this is drawn from Union Governments exemption of similarly situated institutions like III, BRI, ISRO, Department of Energy and some area of defense Ministry also.
5. Petitioners further claim that no reservation could be provided for speciality and super speciality in medical science including that of Assistant Professor in AIIMS in the face of law declared by Supreme Court in some of its judgments, more particularly in the celebrated judgment in
6. Respondents 2 to 5 have detailed out the sequence of events leading to the application of reservation policy to AIIMS in their reply. It is pointed out by them the faculty pots were first exempted from reservation till 11.1.87 when Governing Body of the Institute decided to apply it pursuant to Institute Regulation 24 and GOI reservation policy contained in OM dated 23.6.1975 which was followed up by second resolution dated 27.5.1994 providing reservation for OBCs. It is disputed that any Supreme Court judgment had created any bar to the application of reservation rule to speciality and super speciality posts. On the contrary, they were under statutory duty to apply it under Institute Regulations and Government of India Policy which was not challenged by petitioners.
7. Respondents 1 & 2 have also supported this position asserting that their reservation policy was otherwise applicable to AIIMS faculty in terms of AIIMS notification dated 15.10.1958 though it was being applied for appointment at the entry level (Assistant Professor) which was not a super speciality. It is pointed out that since petitioners had failed to challenge the Government''s reservation policy and statutory provisions like AIIMS Regulation 24, no relief was liable to be granted to them.
8. Respondent No. 6, "Forum for Rights & Equality" and implead as party respondent vide court order dated 10.1.95 has also filed its reply emphasising that R2 to 5 were statutorily bound to apply the reservation rule and that the judgments of Supreme Court in Jagdish Sarna and Dr. Pradeep Jain''s cases had o bearing in the matter.
9. Learned counsel for petitioners Mr. Gupta has taken us through several judgments of Supreme Court which according to him provided that reservation could not be made to speciality and super speciality in medical science. Beyond this, he did not press any independent plea or ground for attacking the impugned resolutions passed by respondent No. 3 or for seeking exemption of post of Assistant Professor from reservation. Even otherwise, it was not possible to examine any independent challenge to these resolutions because petitioners had neither challenged Government''s Reservation Policy contained in OM dated 23.6.1975 nor for that matter AIIMS Regulation 24 or its notification dated 15.10.1948 which paved the way for application of reservation policy to faculty posts in AIIMS. We are, Therefore, confining to the limited issue viz. whether reservation policy was inapplicable or impermissible for making appointment to entry level faculty post of Assistant Professor and to super speciality posts in the light of the relied upon judgments of Supreme Court and whether AIIMS resolutions dated 11.1.83 and 27.5.94 were liable to be struck down for that.
10. The issue can be better appreciated and answered by reference to relevant paras of these judgments so as to find out whether these contained any bar or prohibition against application of reservation policy to speciality and super speciality in medical science. Since Mr. Gupta has staked his whole claim on the Supreme Court judgment in Indra Sawhney''s case, it becomes necessary to extract two paras relied upon by him :-
"While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/ departments/institutions, in specialities and super specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defense services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g. Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.
839. As a matter of fact, the impugned Memorandum dated August 13, 1990 applies the rule of reservation to civil posts and services under the Government of India'' only, which means that defense forces are excluded from the operation of the rule of reservation though it may yet apply to civil posts in defense services. Be that as it may, we are of the opinion that in certain service an in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are: (1) defense Services including all technical posts therein but excluding civil posts. (2) All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defense equipment. (3) Teaching posts of Professors - and above, if any. (4) Posts in super-specialties in Medicine, engineering and other scientific and technical subjects. (5) Posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. It is for the Government of India to consider and specify and service and posts to which the rule of reservation shall not apply but on that account the implementation of the impugned Office Memorandum dated August 13, 1990 cannot be stayed of withheld."
(emphasis supplied)
11. We have read these paras in between the lines but have not come across and such bar or prohibition against application of reservation policy to speciality and super speciality in medical science. As is well known by now, in this case court was seized of GOI OM dated 13.8.90 reserving 27% posts for OBCs pursuant to Mandal Commission Report and while upholding this OM, it made certain observations on several issues including the extent of reservation and whether it was advisable to apply it in certain services/posts on account of their nature and duties attached thereto which called for higher level of intelligence, skill and excellence like posts in defense services and in speciality and super speciality in medicine, engineering, physical sciences, space and mathematics and so on. Undoubtedly, court observed that it would not be advisable to make reservation in speciality and super speciality in medical science, but it stopped short of passing any direction in this regard and left it open to the Government to consider and specify the services and posts which could be exempted from the rule of reservation. This, in our view, could not be treated to be any direction or order against the application of reservation policy to speciality and super speciality post and impugned resolutions could not be invalidated from this.
12. The same holds true about other cited judgments in Dr. Pradeep Jain''s case and Jagdish Sarna''s case also. In the first case, Supreme Court was dealing with the question of reservation on the basis of residential and institutional preference in admission to MBBS and PG courses. It is true that court made some observations against application of reservation to MO and MS courses, but it again did not pas any declaration in this regard. It was the same story in Jagdish Sarna''s case also in which court was examining a challenge to a rule reserving 70% of the seats for PG course for local Delhi graduates. It again underscored the need for adopting merit criterion at higher levels of speciality but it only ended up with a direction for setting up a Committee for determining application of reservation and the extent thereof and stopped short of passing any order or direction invalidating any application of reservation to the speciality and superspeciality. We could not also find anything to support petitioners'' case in
"23 This Court has repeatedly said that at the level of Super specialization there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of a superspeciality, something more than a mere professional competence as a doctor is required. A super specialist acquires expert knowledge in his speciality and is expected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is in the public interest that we promote these skills. Such high degrees of skill and expert knowledge in highly specialised areas, however, cannot be acquired by anyone or everyone.
26. In the premises the special provisions for SC/ST candidates - whether reservations or lower qualifying marks - at the speciality level have to be minimal. There cannot, however, be any such special provisions at the level of superspecialities."
13. A perusal of these whole judgments suggests that aforesaid observations were made in the context of Indra Sawney''s case. However, the court had itself made it clear in this judgment that it was not dealing with the question of application of reservation in post graduate courses. Therefore, even this could not be treated to be an authority on the point.
14. All told, none of these judgments have advanced the case of petitioners any way. Therefore, their prayer to invalidate the impugned AIIMS resolutions on the strength of observations made therein which had not fructified into any directions/order was not liable to be granted. We also notice that none of the case cited except Indra Sawhney''s case related to employment and, Therefore, it was rather far fetched to overstretch these to conclude that rule of reservation could not be applied to speciality an super speciality posts.
15. It may as well be that Government was not applying its reservation policy to certain services/posts/ institutions like III, BARC, etc. but that it was its own prerogative to do so as held by the Supreme Court in State of Punjab v. Dayanand Medical College 2001 (VIII) AD SC 445 and to exempt services and posts from reservation. Petitioners could not catch at straws to draw any analogy from that the seek such exemption from the court.
16. We accordingly hold that for the present, nothing came in the way of respondents 3 to 5 to apply reservation rule for making regular appointment to the post of Assistant Professor and that none of the judgments of the Supreme Court including in Indra Sawhney''s case had imposed any bar or prohibition in this regard.
17. Petition is accordingly dismissed.
