P. M. Mansoor v. State of Kerala — 1986 DIGILAW 182 (KER)

JUDGMENT V. Bhaskaran Nambiar, J. 1. Principles of selection for admission to the post graduate course in General Medicine in the Medical Colleges in this State for the year 1985-86 are challenged in these two writ petitions. 2. Two doctors. Dr. P. M. Mansoor and Dr. K. Shyam, sat for an entrance examination conducted by the Kerala Government and have, at present, to be content with the 6th and 7th places in the wait list, with no prospect of securing admission to the M. D. course in General Medicine. 3. According to the prospectus issued on the basis of the relevant Government orders, reservations are mainly made on the following basis: - (a) 10% reserved for Scheduled Castes/Scheduled Tribes. (b) 10% reserved for Assistant Surgeons/Civil Surgeons etc. of the Health Services Department (Clause (d) (c) 30% reserved for Tutors in Medical Colleges under the Government (clause (e)). (d) There is a further provision which says that if any of these seats reserved for Tutors in the Medical Colleges service remained unfilled, those seats will be filled up by the Health Service staff and if any of these seats reserved for Health Services staff remained unfilled, those seats will be filled by the Tutors. (Clause 3(f) ) 4. An entrance examination is conducted for regulating admission to the open general merit and for selection of the Scheduled Caste/ Scheduled Tribe candidates. Seniority is the basis for selection of the Assistant Surgeons, Civil Surgeons etc., who form one category in the Health Services Department and also for Tutors, who forms another independent category. in the Medical Colleges, under the Government. 5. According to this selection formula, for the year in question, 17 seats are available for open/general merit, four seats for Scheduled Caste/ Scheduled Tribe, four seats for Health Service Staff and ten seats for Tutors. Four Scheduled Caste/Scheduled Tribe candidates have already been selected and there is no challenge to that selection. There were only four Tutors who had applied for the course and they are also given admission. The remaining seats reserved for Tutors do not go to the merit pool and they also are sought to be given to the Health Services staff 6. After the prospectus was published, very soon thereafter, the petitioners promptly challenged the principles of reservation and filed these writ petitions, well before actual admissions were made. The remaining seats reserved for Tutors do not go to the merit pool and they also are sought to be given to the Health Services staff 6. After the prospectus was published, very soon thereafter, the petitioners promptly challenged the principles of reservation and filed these writ petitions, well before actual admissions were made. The writ petitions could not be disposed of earlier and a learned single Judge who heard the matter thought that the matter has to be heard by a Division Bench in view of the importance of the questions raised. We are told that provisional admissions, subject to the result of the writ petitions, have alone been made. 7. The petitioners rely heavily on to decisions of the Supreme Court in Jagadish Saran v. Union of India ( AIR 1980 SC 820 ) and Pradeep Jain v. Union of India ( AIR 1984 SC 1420 ) and contends that the reservations of seats in favour of the members of the Health services and the Tutors are plainly violative of Art.14 of the Constitution When the object is to select the best, this object is frustrated when reservations overlooking claims based on merit are allowed. It is said that merit and merit alone can be the only guiding factor for admission to the post graduate course in Medicine and reservations which dilute the merit quotient can have no relevance in the scheme of admission to these specialities. Even if reservations are possible, it is further contended that they have to be limited to the barest minimum and that in any case, can be made only in favour of the "educationally handicapped". Health services staff and the Tutors in the Medical Colleges, it is said, are not entitled to any favoured treatment as they do not belong to the class of educationally handicapped. Alternatively it is contended that even, if reservations are possible, the percentages of seats reserved for the Health Service staff and Tutors are so unscientific, unreasoned, exaggerated, excessive and unreasonable, the reservations so made are arbitrary and have to be ignored and rejected. There is a further contention that there has been no application of the mind to the question of reservation and the Government have merely acceded to the demands of certain associations without regard to the constitutional limitations. 8. There is a further contention that there has been no application of the mind to the question of reservation and the Government have merely acceded to the demands of certain associations without regard to the constitutional limitations. 8. The Senior Government pleader who appeared for the State contended that the Government have not made any reservation; but have only fixed the sources for admission and thus there is no basis for the challenge under Art.14. The contention is advanced that when the State prescribes the rules for admission to the Medical Colleges financed by the Government, it has a wider latitude and that it can rightly take note of the needs of the State and the public interest involved in not only "prescribing" the sources of admission but also fixing the seats available for each source. It is forcefully contended that Post graduate admissions even to the speciality in Medicine and allied subjects are also subject to the constitutional reservations under Art.15 of the Constitution and the contention therefore that no reservation is possible for post graduate courses in Medicine ignores the constitutional obligation of the State. It is again contended that the Health Services staff and the Tutors are both in - service candidates and there is nothing wrong when the seats available in one category of in service staff are made over to the other category of in service candidates 9. What then, are the principles to be formulated for admission, not to the MBBS course in the Medical Colleges in this State, but to the Post graduate studies in Medicine? Is the State bound to make admissions only on the ground of merit without any regard for any reservations/ preferences? Is the State not bound to discharge its constitutional obligations to the Scheduled Caste/Scheduled Tribe under Art.15 of the Constitution? Cannot the State make reservations even outside the permissible limits of Art.15, so long as they do not offend Art.14 of the Constitution? These and other allied considerations arise for decision. 10. We are particularly aware of the decisions of the Supreme Court in D. P. Joshi's case ( AIR 1955 SC 334 ) in Chitra Gosh's case ( AIR 1970 SC 35 ), in Chanchala's case ( AIR 1971 SC 1762 ), in Periakaruppan's case ( AIR 1971 SC 2303 ), and in Pratip Tandon's case in ( AIR 1975 SC 563 ). While all these decisions relate to admission to the MBBS. course, there are two later decisions of the Supreme Court dealing specifically with admissions to Post graduate courses, AIR 1980 SC 820 and AIR 1984 SC 1420 . We shall therefore concentrate our attention to these decisions and we shall extract some of the relevant observations. 11. The place of merit in the scheme of admission to the M. B. S. S. course has been stressed in all the decisions and the observations of Mr. Justice Dua as early as 1971 in Chanchala's case highlighted by Mr. Justice Krishna Iyer even in 1980 in Jagdish Saran's case are important in the present context as well. "The object of selection for admission to the Medical Colleges, considered in the background of the directive principles of State policy contained in our Constitution, appears to be to select the best material from amongst the candidates in order not only to provide them with adequate means of livelihood, but also to provide the much needed medical aid to the people and to improve public health generally". 12. The focus on merit in the admission theme to post graduate studies in Medicine was made in Jagdish Saran's case thus: - "The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best skill or talent, must be hand picked by selecting according to capability. At the level of Ph.D., M. D, or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations we have expended upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. The Indian Medical Council has rightly emphasised that playing with merit for pampering local feeling will boomerang. Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract the Indian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration: Students for post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract the Indian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration: Students for post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post graduate studies should be conducted by the Universities." In the higher scales of specialised knowledge, be it art, science or technology, superior performance must be accorded recognition, for a variety of considerations. Who but humanity suffers if a rare genius, with a great flair for or mastery of a key branch of natural or social science, is forced to wither away by a rule of total reservation for its own alumni and proscription of outsiders, by a house of higher learning? Can unapproachability', a cultural anathema now in India, attain respectability by being labelled as 'reservation'? No. Therefore a blanket ban which is the indirect result of a wholesale reservation is constitutional heresay. There must be substantial social justice as raison d'etre for a high percentage of alumni reservation". "If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post graduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce If the best potential in these fields is cold - shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless". "Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or post doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine tuned performance at the difficult heights of some disciplines where the best, alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialists, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post graduate or post doctoral. Of course, we should not exaggerate this factor. Post graduate studies are not all that great an demanding as to invite only geniuses. We cannot be scared by glorifying merit nor be hypnotised by the cult of talent, seeing as we do, crowds of M.Ds., M.Ss: and their foreign analogues. Of course, we should not exaggerate this factor. Post graduate studies are not all that great an demanding as to invite only geniuses. We cannot be scared by glorifying merit nor be hypnotised by the cult of talent, seeing as we do, crowds of M.Ds., M.Ss: and their foreign analogues. Nor indeed, are the entrance tests any but the feeblest yardsticks to measure innate capabilities is it Dot the wildest hostage to fortune to swear by marks alone which are so freakish and determined by a chancy variety of variables? We find different modes of examining faculties in different universities, commissions and countries and may on closer scrutiny, pick holes in the scientific basis of our entrance tests themselves. We repeat all this only to stress the limitations on the current system of selection so that we may not be swept off our feet by the elitist feeling that something sacred or scientific is being jettisoned for the sake of accommodating nitwits of backward regions institutions or classes when marks are slightly slurred over. Even so, being realists, we go by existing methodology until better modes are devised." 13. Reiterating the above view Justice Bhagwati (as His Lordship then was) in Pradeep Jain's case in AIR 1984 SC 1420 said thus: - "We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to postgraduate courses are concerned, for pampering local feeling, will boomerang. The Medical Education Review Committee has also expressed the opinion that "all admissions to the post graduate courses in any institution should be open to candidates on an all India basis and there should be no restriction regarding domicile in the State/UT in which the institution is located." So also in the policy statement filed by the learned Attorney General, the Government of India has categorically expressed the view that: "So for as admissions to the institutions of post graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all India merit subject to constitutional reservations in favour of scheduled Castes and Scheduled Tribes". 14. Regarding reservations/preferences for admission to the Postgraduate course in Medicine the Supreme Court in Jagdish Saran's case ( AIR 1980 SC 820 ) held thus: - "......The first caution is that reservation must be kept in check by the demands of competence. 14. Regarding reservations/preferences for admission to the Postgraduate course in Medicine the Supreme Court in Jagdish Saran's case ( AIR 1980 SC 820 ) held thus: - "......The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage which may be available, must be kept open for meritorious performance regardless of university. State and the like. Complete exclusion to the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit latent, total sacrifice of excellence at the alter of equalisation when the Constitution mandates for everyone equality before and equal protection of the law may be fatal folly, self defeating educational technology and anti national if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit - such is the dynamics of social justice which animates the three egalitarian articles of the Constitution." " ......... The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best skill or talent, must be hand picked by selecting according to capability. At the level of Ph.D., M. D, or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the considerations we have expended upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. The Indian Medical Council has rightly emphasised that playing with merit for pampering local feeling will boomerang. Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract the Indian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration; Students for post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. Midgetry, where summitry is the desideratum, is a dangerous art. We may here extract the Indian Medical Council's recommendation, which may not be the last word in social wisdom but is worthy of consideration; Students for post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post graduate studies should be conducted by the Universities." "If university wise classification for post graduate medical, education is shown to be relevant and reasonable and the differentia has a nexus to the larger goal of equalisation of educational opportunities the vice of discrimination may not invalidate the rule". 15. And in Pradeep Gain's case ( AIR 1984 SC 1420 ) it was held thus: - "....... we unreservedly condemn wholesale reservation made by some of the State Governments on the basis of 'domicile' or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit. We declare such wholesale reservation to be unconstitutional and void as being in violation of Art.14 of the Constitution." These observations were made with reference to M.B.B.S. admission and as far as admission to M S and M. D course are concerned, it was observed thus: - "We are therefore of the view that so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the state shall not be a ground for reservation in admission to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event 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 neuron 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 " The Supreme Court in a subsequent case in Dinesh Kumar v. Motilal Nehru Medical College, Allahabad ( AIR 1985 SC 1059 ) clarified the stand regarding reservation thus: - "We would also like to clear up one misunderstanding which seems to prevail with some State Governments and Universities in regard to the true import of our judgment dated 22nd June, 1984. They have misinterpreted our judgement to mean that 30% of the total number of seats available for admission to MBBS. course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total misreading of our judgment. They have misinterpreted our judgement to mean that 30% of the total number of seats available for admission to MBBS. course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total misreading of our judgment. What we have said in our judgment is that after providing for reservation validly made, whatever seats remain available for non reserved categories, 30% of such seats at the least, should be left free for open competition and admission to such 30% open seats should not be based on residence requirement or institutional preference but students from all over the country should be able to compete for admissions to such 30% open seats. To take for example, suppose there are 100 seats in a medical college or University and 30% of the seats are validly reserved for candidates belonging to scheduled castes and scheduled tribes. That would leave 70 seats available for others belonging to non reserved categories. According to our judgment, 30% of 70 seats, that is, 21 seats out of 70 and not 30% of the total number of 100 seats, namely, 30 seats, must be filled up by open competition regardless of residence requirement or institutional prefer preference". Medical colleges are few; aspirants for admission are many, Selection process is therefore inevitable. Even then, merit cannot be sacrificed and constitutional obligations ignored. Post graduate study in medicine is an intellectual index of extraordinary proficiency. Speciality in medicine reflects particular expertise in a chosen field. Seat at the top is not for the mediocre or the middling. Merit should therefore have the dominating, commanding, inspiring influence for admission to the post graduate level in any speciality in medicine. The right to regulate admission on the basis of merit to this higher regions of education is, of course, subject to the constitutional right assured to the State under Art.15(3) and (4) of the Constitution. The contention that there can be no reservation at all for post graduate admission cannot thus be accepted. 16. It will be for the Government to decide whether there should be any special provision as contemplated under Art.15(3) and (4) of the Constitution for post graduate admissions and it is necessary to remember that it is not a constitutional compulsion that special provisions should always be made in every case. 16. It will be for the Government to decide whether there should be any special provision as contemplated under Art.15(3) and (4) of the Constitution for post graduate admissions and it is necessary to remember that it is not a constitutional compulsion that special provisions should always be made in every case. So also, the Government have the discretion to make reservations outside the pale of Art.15; but they will be subject to stricter scrutiny under Art.14, and when the reservations vitally affect and defeat the very object of selection to the specialities, those reservations are likely to be struck down as offending the mandate of Art.14. Reservations in those spheres of higher education and specialities have therefore to be marginal and minimal. 17. Now let us face the challenge to the reservations in favour of Assistant Surgeons etc. in the Health Services Department. Most of the Assistant Surgeons are ordinary MBBS. degree holders. They work in hospitals, mostly in villages. There were more than 250 Government hospitals and more than 2800 Assistant Surgeons in Government services. These Government hospitals render free medical aid or on payment of only nominal charges. It is. therefore, common knowledge that it is the poorer sections of the community that are mainly benefited through these Government hospitals. When the Government therefore decide that the Government doctors, teaching even the farthest corners of the remote villages, should be better qualified, and should have specialised training and qualification, and that some seats should be reserved for them, it is difficult for this Court to hold that the reservations so made in their favour should be ignored. The object of obtaining better specialised medical aid to the poorer sections of the community is achieved by a reservation in favour of the Assistant Surgeons etc. in the Health Services Department Four seats are reserved for the 2800 and odd Assistant Surgeons for admission to the M. D. course in medicine! It is not possible to hold that the reservation in their favour violates Art.14 or that the number of seats reserved in their favour is excessive, in the circumstances of this case. The 10% reservation made in favour of Assistant Surgeons etc. for the relevant year, for four seats cannot thus be set aside. 18. We shall now turn to the reservation in favour of Tutors. Thirty per cent seats are reserved for Tutors in the Medical Colleges. The 10% reservation made in favour of Assistant Surgeons etc. for the relevant year, for four seats cannot thus be set aside. 18. We shall now turn to the reservation in favour of Tutors. Thirty per cent seats are reserved for Tutors in the Medical Colleges. They are thus entitled to ten out of the thirty five seats available in this speciality. The defence in favour of this reservation is stated thus: - "I state that 30% of seats in Post Graduate Degree Course are reserved for Tutors. These reservation is to enable the Tutors who are working in the Medical Colleges to get specialisation in the respective branches so that they may be able to teach the students in the Medical Colleges and also to attend to the cases which are referred to the Medical College Hospital by other Hospitals. The qualification for Tutors is only MBBS. and unless they get Post Graduate Degree in particular speciality, they may not able to get promotion to Assistant Professor. Associate professor, professor etc. It is with a view to encourage the Tutors to get well qualified that 30% of seats in Post Graduate Course are reserved for them." The reservation now held out in favour of Tutors for 1985-86 cannot be sustained for more than one reason. The Government have not applied their mind to the relevant facts, have not adverted to the object sought to be achieved in the matter of selection to post graduate courses in medicine, have relied on irrelevant factors and have fixed a very high percentage, in any case, disproportionate to the needs of the situation. 19. When, "select the best", is the accepted principle of selection in these higher regions of education, the averments in the counter affidavit do not show that the Government ever adverted to this aspect when making reservation. On the other hand, the basis of reservation, as stated in the counter affidavit, is to advance the promotional prospects of Tutors. There is no averment that this reservation was intended to maintain a higher standard of education at the post graduate level. In fact, the Government seem to have acceded to the demands of an association without considering the constitutional and legal implications. There is no averment that this reservation was intended to maintain a higher standard of education at the post graduate level. In fact, the Government seem to have acceded to the demands of an association without considering the constitutional and legal implications. The Government Pleader submitted that the reservation fixed in the earlier years was followed for 1985-86 also and produced the files relating to the reservation for Tutors made in 1980 It is seen that prior to 1980, only 20% was reserved for Tutors. The Kerala Government Medical Teachers Association demanded an increase in the number of seats available to the Tutors and suggested the only way to overcome this problem is to reserve one seat every year for Tutors in subjects where the number of seats is less than five or take steps to increase the seats to 4 or 5 by starting P. G. course in Colleges where facilities exist. The Government issued G. O. Ms. 89/80/HD. dated 29-3-1980 enhancing the percentage to 30% for Tutors for post graduate courses. The suggestion "Reservation for Tutors in Medical Colleges may be increased from 20% to 30% where post graduation is an essential qualification for them", was approved by the Government. Thereafter this reservation was mechanically followed without adverting to the relevant facts for each relevant year. 20. There are only 45 tutors in general medicine in the Medical colleges in the State. Out of these, except 4 the rest are all post graduates. The reservation is intended only for these four persons. Even then, the Government reserved 10 seats out of thirty five for the Tutors. While 10% is reserved for Assistant Surgeons who numbered more than 2800, 30% is reserved for the four Tutors. It is thus clear that the Government never applied their mind to any relevant fact when reservation was ordered in favour of Tutors for the relevant year. Even assuming there has been any application of the mind, the percentage now given to the Tutors is highly excessive and plainly arbitrary. 21. It is to be noted that the Tutors are also entitled to sit for the entrance examination along with the other MBBS. degree holders. Having associated with the Medical College as Tutors, exposed as they are to the academic atmosphere in the college, they should be in a better position than the other MBBS. 21. It is to be noted that the Tutors are also entitled to sit for the entrance examination along with the other MBBS. degree holders. Having associated with the Medical College as Tutors, exposed as they are to the academic atmosphere in the college, they should be in a better position than the other MBBS. doctors to secure higher ranks in the merit list. If these Tutors, with these distinct advantages, compete in the entrance test or secure only lower ranks in the merit list, there is no good reason to give them any favoured treatment over persons who have obtained higher ranks in the merit list Merit is thus sacrificed to give a favoured treatment to the Tutors. There may by other good grounds for allowing reservation in favour of Tutors. But none was advanced in these cases. It should not therefore be understood that we have held finally that Tutors are not entitled for reservation to the post graduate courses. 22. It has been pointed out that there are now several post graduates available for appointment as Tutors and there is in fact, no necessity to appoint ordinary MBBS. as Tutors and bring them through the reservation door to the post graduate course of study. It is suggested that the better course open to the Government is to prescribe M. D. / M. S. as the minimum qualification for appointment as Tutors in which case a higher standard is maintained at the teaching level also and prospects for promotion are not affected for want of any qualification. We have no doubt that the Government will consider these and other aspects of this question also when prescribing qualification for appointment to the post of Tutors in Medical Colleges in future and when principles of selection for admission to these courses are formulated hereafter. 23. It is thus not possible to decide the question whether Tutors are not entitled to reservation for post graduate course of instruction in general medicine without more material. In the present case, for the purpose of this case, it is sufficient to consider whether the percentage allotted to the Tutors is arbitrary. 24. It is in this context that we have to consider the validity of the provisions contained in clause (f) of the Prospectus under which the unfilled seats reserved for Tutors could be allotted to the Assistant Surgeons and vice versa. 24. It is in this context that we have to consider the validity of the provisions contained in clause (f) of the Prospectus under which the unfilled seats reserved for Tutors could be allotted to the Assistant Surgeons and vice versa. The effect of this provision for this year is that the six seats which remained unfilled in the Tutors quota for want of sufficient number of candidates in that class will have to go to the Assistant Surgeons increasing thus the reservation of 10% allowed to them. This provision is inserted for the first time for post graduate admission in 1984-85 and 1985-86. There was no such provision till 1983-84. Regarding admission to the MBBS. course, it is specifically stated that if any of the reserved seats remained unfilled, such vacancies shall be taken together and distributed according of merit, "such seals being added to the Kerala State recruit." There is no reason stated in the counter affidavit for not inserting a similar provision for M D admission. When quota has been reserved for a particular class, which itself is a fair dilution of the quality of standards expected at the post graduate level, there is no reason why that percentage should be increased in any contingency. There cannot be a direct or indirect increase of the percentage of reservation when the same is already fixed for any class. When merit is the test to select the best, any seat that is not available to a reserved class should in the normal course, naturally go to the "merit" candidate, the seats being added to the State merit. This classification is therefore plainly destructive of the object sought to be achieved regarding admission to the post graduate level and cannot be sustained. Clause (f) of Ext. P1 is therefore struck down as opposed to Art.14. 25. The Senior Government pleader contended that Assistant Surgeons and Tutors both belonged to the same category of in - service candidates and thus there is nothing wrong in the seats allotted to one group in the same category being given to another group also of the same category. We are unable to appreciate this stand for the simple reason that the Government themselves have made a classification of in - service candidates. The reservation was made for two categories and they did not belong to the same class as contended by the Government Pleader. We are unable to appreciate this stand for the simple reason that the Government themselves have made a classification of in - service candidates. The reservation was made for two categories and they did not belong to the same class as contended by the Government Pleader. One category comprises the staff engaged mainly in rendering aid to the poor sections of the community while the other is comprised of staff engaged in the medical colleges imparting education to medical students. One category belongs to the Health services Department and the other to a different department under the Government. 26. The Senior Government Pleader also submitted that it was not proposed to disturb the percentage of reservation allotted to Assistant Surgeons for the next y year. In other words, the stand is that the Assistant Surgeons etc. are entitled to 10% of the seats for the next year also If 10% is a fair reservation for Assistant Surgeons in spite of their larger number in service, one fails to understand why that percentage should be increased indirectly ignoring the merit potential that is available from the general quota. 27. Before closing, it is also necessary to consider one minor contention advanced by the Senior Government Pleader. He contended that there is in fact, no reservation made in favour of Tutors and Assistant Surgeons but there is only a prescription of sources for admission and therefore the principles governing reservation do not apply. He laid considerable stress on the observations of the Supreme Court in Chitra Ghosh V. Union of India ( AIR 1970 SC 35 at 39) which reads thus: - "It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an over all assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an over all assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification". This decision itself mentions of a proper classification of the source and this has been reiterated in D. N. Chancala's case ( AIR 1971 SC 1762 at 1769) thus: - "Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a national basis and reasonable connection with the object of the rules." 28. The Government themselves expressly mentioned that they were making reservations for Tutors. They had no case then that they were only fixing sources for admission. Moreover, the MB. B. S degree holders constitute the source for admission to the post graduate course. It is in that source that reservations are made. It cannot therefore be contended that when reservations are made in favour of Assistant Surgeons and Tutors, the Government was only fixing sources for admission. Moreover, even assuming they are only sources for admission, it does not mean that the sources are immune from attack as violative of Art.14 of the Constitution. 29. We have held that there was no justification, no rational basis to sacrifice merit and divert the seats remaining unfilled in the Tutors category for the benefit of the Assistant Surgeons. For the relevant year, therefore after giving Tutors 4 seats, i. e., to all the applicants in that category, the remaining 6 seats will have to be given to the candidates in the merit list now in the wait list. If so, the petitioner in O. P. No. 1559 of 1986, Dr. P. M. Mansoor, on the strength of his own merit is entitled to seat for the M. D. course as of right. If so, the petitioner in O. P. No. 1559 of 1986, Dr. P. M. Mansoor, on the strength of his own merit is entitled to seat for the M. D. course as of right. We have noted that the percentage allotted to the category of Tutors for the relevant year is on the high side. For want of sufficient materials on record, (as noted by the Supreme Court in Jagadish Saran's case also) we are not able to determine the exact percentage that should have been allotted to the Tutor category, assuming, that this class is entitled to some reservation, on reasons which have an intelligible nexus with the object sought to be achieved. A very alteration of the percentage allowable to the Tutors, in any case, will enable the petitioner in O. P. No. 381 of 1986. Dr. Shyam, who is now the 7th rank, also to be admitted. We have already given interim direction to admit both of them to the P. G course in medicine. Their admission are subject to further directions at the time of the disposal of these writ petitions. 30. In moulding the relief to be granted we have necessarily to take note of the fact that the writ petitioners are 6th and 7th in the wait list and thus there are five persons above them. Even then, most of them or at least some of them have already got admission to some other specialities. Our endeavour should be to see that as far as possible, admissions already made should be least affected. The overall circumstances of the case and the interests of justice have also to be kept in view when direction are now issued. 31. We, therefore, direct, that for the year 1985-86, for admission to P. G. course in general medicine. (1) the six seats now remaining unfilled in the Tutors category will be allotted to the persons in the general merit list (the wait list): (2) if persons, included in merit wait list in this speciality have already been admitted to some other specialities, they shall not be given any (2) if persons, included in merit wait list in this speciality have already been admitted to some other specialities the shall not be given any option to come back to General Medicine. They should be allowed to continue only in the speciality to which they have been admitted. They should be allowed to continue only in the speciality to which they have been admitted. (3) The petitioners, Dr. P. M. Mansoor and Dr. Shyam, shall be admitted to the M. D. course in Medicine for the year 1985-86. We record the submission that they have already been admitted. (4) The admission of these persons shall be regarded as admission on merit and to seats available to them on their own right. (5) Persons in the merit wait list ranked below the petitioners in these write petitions need not be considered for admission to displace any person already admitted provisionally. (6) Persons who may have to give place to those who are directed to be admitted by this Court, and who are entitled to be admitted in pursuance of this judgment, are. only those Assistant Surgeons etc. who have been provisionally admitted to the excess seats made available to them from the Tutors quota. (7) It will be open to the Government to seek approval from the Indian Medical Council for sanction of additional seats for the P. G. course in Medicine for the year 1985-86, and the Indian Medical Council, we are sure, will realise the problem posed and take a decision for the relevant year, 1985-86, as a special case in the extra ordinary circumstances of the situation so that there is less of injustice and more of good will in the ultimate analysis. As far as possible, it should be the endeavour of the State and the Indian Medical Council to see that persons already admitted are not affected, 32. We also direct that the Government shall apply its mind to the question of reservation for admission to the P. G. course in medicine in the light of the principles stated by the Supreme Court in AIR 1980 SC 820 and AIR 1984 SC 1420 and also by us in these two writ petitions and formulate the principles and issue the necessary orders with reference to the facts and circumstances for each year, sufficiently in advance, before the entrance examinations are held, for that year. The Government shall not thus mechanically follow the reservation adopted for the previous year. In the result, the two writ petitions are allowed subject to the above directions. No costs.