JUDGMENT M.L. Bhat 1. Petitioners who are ten in number, seek a writ of mandamus directing the respondent to consider the representation of the petitioners and to hold competitive examination for the admission to the Post Graduate Courses as per directives of the Hon'ble Supreme Court or in the alternative it is prayed that the respondent be directed to increase the number of seats in order to adjust all the students of 1985 Batch in Post Graduate Courses scheduled to begin from January, 1991. 2. Case of the petitioners is that they have passed their M.B.B.S. from the Institute of Medical Sciences, Banaras Hindu University, and are about to complete their internship. They are entitled to be given an opportunity for taking admission in Post Graduate Classes and it is necessary to remove the disproportionate fixation of seats in the Post Graduate seats distribution system. It is prayed that the University be directed to hold competitive examinations as directed by the Supreme Court in Dr. Dinesh Kumar v. M. L. N. Medical College, Allahabad, 1987 Vol. IV SCC 459. The competitive examination is not being held to benefit favoured candidates The petitioners claim that they are meritorious students and they are being deprived to seek admission in the Post Graduate Classes. They belong to 1985 M.B.B.S. Batch. There were certain students who were admitted in 1984 after the session had begun and 15 such students had to be adjusted alongwith 1985 batch. As a result of this strength of M.B.B.S. students of 1985 batch has been increased by 15. It is further stated that the permanent allotment of Post Graduate seats for every batch passing out is 63 in number, but since 15 students of 1984 batch were not allowed to continue in 1984 batch, only 40 students of 1984 batch were admitted in the Post Graduate Classes whereas the maximum seats allotted to the under graduate classes for admission in Post Graduate Courses is 55. On account of the increase in number in 1985 batch, difficulty has arisen for admissions to Post Graduate classes, as the seats of the Post Graduate classes is also the same, i.e. 55.. The consequential increase in number of under graduate students and the seats of Post Graduate classes are static, the petitioners are being put to loss on account of this position. The consequential increase in number of under graduate students and the seats of Post Graduate classes are static, the petitioners are being put to loss on account of this position. The petitioners made a representation to the Vice-Chancellor requesting him either to hold competitive examination or to get increased number of seats. The petitioners wanted that the norms set up by the Medical Council of India in pursuance of the Supreme Court decision be followed. 3. At present admissions to the Post Graduate Courses, are being done on the basis of the marks obtained in the Final III Professional examinations. Favoured candidates are given higher marks in the Final year Professional examinations as has been done in cases of number of students whose names are given in paragraph 10 of the writ petition. The method of admission is contrary to the method suggested by the Supreme Court inasmuch as no competitive examination is held for the admission to the Post Graduate classes for the internal seats. The respondent is said to have failed to comply with the direction of the Supreme Court with regard to the holding of competitive examination for Post Graduate courses only to accommodate the favoured candidates. It is likely that 15 students being dropped and deprived of admission on account of non increase in the number of Post Graduate seats. 4. The University has filed a counter-affidavit also. In their counter, it is stated that there are 84 seats under various Post Graduate Programmes in the University. These are fixed and sanctioned by the University Grants Commission. It is incorrect that fixation of seats is disproportionate. As per directives of the Supreme Court 25 per cent of the seats are filled in through the Central Pool by an All India Entrance Examination. In this way 21 seats are reserved for Central Pool. The remaining 63 seats are filed in as per established parctice for the past several years on the basis of the merit of the students in the Illrd Professional M.B.B.S. examination. The selection procedure followed this time, does not in any manner violate the directives of the Supreme Court. It is stated that the petitioners are not meritorious students. The remaining 63 seats are filed in as per established parctice for the past several years on the basis of the merit of the students in the Illrd Professional M.B.B.S. examination. The selection procedure followed this time, does not in any manner violate the directives of the Supreme Court. It is stated that the petitioners are not meritorious students. In fact the performance of the petitioners except the first petitioner is poor as compared to the other students who have been selected for admission It is stated that those students who are admitted in the M.B.B.S. programme beyond 30 working days from the commencement of the session were accommodated with the students of the next session so far as the professional examination is concerned. As a result of this method the strength has exceeded. There is no question of carrying forward any back-log of M.D./M.S. seats for an indefinite period. The representation of the petitioners is said to be under consideration of the Vice-Chaneellor. The allegations of favouritism and nepotism in the matter of admission are denied. The petitioners had filed an application on which no order was passed. In the said application it was prayed to restrain the University from making admission in the Post Graduate Courses in the Institution of Medical Sciences commencing from 1st January, 1991 on the basis of the marks obtained in final professional. 5. 56 Students who have been granted admission in the Post Graduate Course, have filed an application praying that they may be impleaded as opposite parties in the writ petition and their representation be considered. It is prayed that any order in the writ petition is likely to effect their admission, therefore, they are necessary parties in the writ petition and without their presence before the Court no effective order can be passed. 6. I was informed at the Bar that the petitioners have been granted admission to the Post Graduate Courses now. Learned counsel for the petitioners submits that the petitioners could not get admission in the subjects of their choice. At any rate he submits that he was challenging the method of selection and if selection is held afresh, the petitioners also may be permitted to appear in the competitive examination and the selection already made may be held to be contrary to the directions issued by the Supreme Court from time to time. At any rate he submits that he was challenging the method of selection and if selection is held afresh, the petitioners also may be permitted to appear in the competitive examination and the selection already made may be held to be contrary to the directions issued by the Supreme Court from time to time. Learned counsel for the parties were heard. They referred to certain authorities of the Supreme Court which have a close bearing on the subject under discussion. The first case which was referred to is Dr. Pradeep Jain v. Union of India, AIR 1984 SC 1420 . In this case quidelines regarding admission to M.B.B.S. Courses and M. D. and M. S. Courses were given. It was held that reservation on the basis of institutional preference can be made but it will not exceed 70 per cent of the open number of seats available in the Post Graduate Courses. This would mean that there can be reservation upto a certain percentage, outer limit being 50 per cent for the students who have passed M.B.B.S. Courses from Medical Colleges or Universities to enable them to seek admission to the Post Graduate Courses in the same Medical College or University. The next case relied upon was Dr. Dinesh Kumar v, M. L. N. Medical College, Allahabad, 1987 UP LB EC 713. The selection was directed to be made for 25 per cent seats by the selection committee to be conducted by All India Institute of Medical Sciences, New Delhi and for remaining 75 per cent seats it was to be done on the basis of the competitive examination to be held for the purposes of selection. Mr. Kakkar has submitted that uniform practice is to be evolved from the beginning of 1993 and there has to be one pattern namely three years Course without any houseman- ship. 7. Learned counsel has also referred to Dr. Dinesh Kumar v. M. L. N. Medical College, Allahabad, AIR 1990 SC 2030 . This judgment relates to an interlocutary application. It was noted that the State of U.P. has not discharged its obligation to initiate action for admission in appropriate time so as to allow the commencement of the course for the year 1990 with effect from May 2, 1990 for not obeying the direction of the Supreme Court. This judgment relates to an interlocutary application. It was noted that the State of U.P. has not discharged its obligation to initiate action for admission in appropriate time so as to allow the commencement of the course for the year 1990 with effect from May 2, 1990 for not obeying the direction of the Supreme Court. Costs were imposed on the State of Bihar and Principals of seven Medical College of U. P. were asked to pay Rs. 500/- each. 8. In an authority Dr. Dinesh Kumar v. M. L. N. Medical College, Allahabad AIR 1986 SC 1877 the Supreme Court modified its earlier order which it had given in AIR 1985 SC 1059 . The modified directions are as follows :- "(1) For the present at least, the All India Entrance Examination shall be held in English medium and not in any regional language. (2) In order to avoid the possibility that a State Government may reduce the number of seats available for admission on the basis of All India Entrance Examination by increasing the number of reserved categories or by increasing the percentage of reservations the direction was given that instead of 30 per cent after taking into account reservations validly made not less than 15 per cent of the total number of seats in each medical college or institution, without taking into account any reservations validly made, shall be filled on the basis of All India Entrance Examination. This new formula would be fair and just and will bring about real equality of opportunity in admissions to the MBBS/ BDS Course without placing the students in one State in an advantageous or disadvantageous position as compared of the students in another State. The same formula must apply also in regard to admissions to the post graduate courses and instead of making available for admission on All India basis 50 per cent of the open seats after taking into account reservations validly made, not less than 25 per cent of the total number of seats without taking into account any reservations, shall be made available for being filled on the basis of All India Entrance Examination. (3) The Supreme Court did not limit the reservations available to S.C. S.T. and O.B.C. to 50 per cent. It is open to State Governments to make reservations without violating constitutional guarantees. (3) The Supreme Court did not limit the reservations available to S.C. S.T. and O.B.C. to 50 per cent. It is open to State Governments to make reservations without violating constitutional guarantees. (4) The State of Andhra Pradesh and J and K were exempted from operation of the S. C. judgment reported in AIR 1985 SC 1059 . The students from the other states are not entitled to compete for admission to the medical colleges and institutions in the States of Andhra Pradesh and Jammu and Kashmir and therefore it would clearly be inequitous to allow the students from the States of Andhra Pradesh and Jammu and Kashmir to compete for admission in the medical colleges and institutions of the other states. The Supreme Court directed that the students from the States of Andhra Pradesh and Jammu and Kashmir will not be entitled to appear in the All India Entrance Examination, unless the States of Andhra Pradesh and Jammu and Kashmir agree to make not less than 15 per cent of the total number of seats for the MBBS/ BDS Courses and not less 25 per cent of the total number of seats for the Post Graduate Courses in their respective medical colleges or institutions available for admission on the basis of All India Entrance Examination. (5) The syllabus for the All India Entrance Examination as framed by the Medical Council of India was approved. Suggestion given to the Education Department of each state as also the Board of Secondary and or Higher Secondary Education in each State to take note of this syllabus and to suitably amend its syllabus or course for the 12th year may be properly equipped to face the All India Entrance Examination. It would be desirable if a common syllabus is adopted at plus 2 level throughout the country so that there may be uniformity in the educational pattern and the students in various states may be able to appear in the All India Entrance Examination on a footing of equality without any under advantage to one as against the other. (6) The All India Entrance Examination for MBBS/BDS Course should not be allowed to be held by the Medical Council of India. It has a supervising and auditing function and no experience and infrastructure for holding Entrance Examination of such large mangnitude. (6) The All India Entrance Examination for MBBS/BDS Course should not be allowed to be held by the Medical Council of India. It has a supervising and auditing function and no experience and infrastructure for holding Entrance Examination of such large mangnitude. The Central Board of Secondary Education which has not only the infrastructure but also the experience of holding an All India Examination for the 12th year would be the most appropriate agency to hold the All India Entrance Examination for admission to MBBS/BDS Course. (7) The holding of the All India Entrance Examination for post graduate courses may appropriately be entrusted to the All India Institute of Medical Sciences. If, for any reason, the All India Institute of Medical Sciences is not prepared to undertake the task of conducting such examination, then and in that event only, the Government of India may entrust this task to the Medical Council of India. (8) The Court suggested that it would be ideal to set up in due course an independent statutory body which will conduct the All India Entrance Examinations both for the MBBS/BDS Course and the post graduate courses. (9) These medical colleges or institutions which were already excepted from the operation of the judgment dated 22nd June, 1984 (reported in AIR 1984 SC 1420 ) will continue to remain outside the scope of the scheme. (10) The All India Entrance Examination for the MBBS/BDS Course shall be held once in a year. The result shall be declared sometime between 15th and 20th June. The Bulletin of Information shall be available to the students by 1st February of each year commencing from 1987. (11) Only one examination in a year will be held for the post graduate courses. It will not be necessary that at the time of appearing for the examination the student should have completed compuslory retating internship practical training programme and obtained registration from the Medical Council of India or any of the State Medical Councils. No weightage should be given to a candidate for rural service rendered by him so far as admissions to post graduate courses arc concerned" I have reproduced the directions of the Supreme Court to indicate that for 75 per cent seats also competitve examination was required to be held and for remaining 25 per cent seats selection was to be made on the basis of the All India Entrance examination. That examination was to be held by the All India Institute of Medical Sciences. 9. In State of Bihar v. Dr. Sanjay Kumar Sinha, 1990 AIR 749, the Supreme Court warned that serious view will be taken in future, of any violation of the directions given for admission to post graduate Medical courses in 1987 (4) SCC 459 . 10. Considering the judgment of the1 Supreme Court it becomes manifestly clear that the admission to the post graduate courses in Medical Science in the respondent University are to be held through a competitive examination and the method laid down by the Supreme Court for admission is to be followed strictly. It is not correct to say that the selection can be made on the basis of marks obtained in IIIrd year professional examination. It was submitted by Mr. Kakkar that those students who are admitted to M.B.B.S, courses are assured admission to post graduate courses after they complete M.B.B.S. course if they have merit in IIIrd year Professional Examination of M.B.B.S. Courses. The seats reserved for M.B.B.S. Courses correspond to the number of seats which are reserved for post graduate course. The number of seats were increased in the current session because 15 students of 1985 batch had to be accommodated for the post graduate admission. The petitioners are now granted admission, therefore, their grievance is stands redeemed. Another argument advanced by Mr. Kakkar was that the directions of the Supreme Court could be followed from 1993 because five years' period was given to continue with the present arrangement. This argument does not appear to be correct. From a close scrutiny of the Supreme Court's authority 1987 UP LB EC 713 (supra) it would appear that in some States, the Postgraduate course was for a term of two years with housemanship of one year while in other States it is full term of three years. Many of the States were of the view that this situation should continue. If a common pattern for housemanship was to be adopted immediately there was likelihood of some difficulties creeping in. Uniform practice was to be evolved so that the discipline would be introduced. The present arrangement was, therefore, allowed to continue for a period of five years and for admission beginning from 1993 there should be only one pattern namely, three years' course without any housemanship. Uniform practice was to be evolved so that the discipline would be introduced. The present arrangement was, therefore, allowed to continue for a period of five years and for admission beginning from 1993 there should be only one pattern namely, three years' course without any housemanship. The pattern which the Supreme Court has suggested should be uniform, was in respect of abolition of housemanship and three years' course was to be introduced for Post-graduate studies. The Supreme Court did not postpone the direction about the method of selection to the Postgraduate course by competitive examination and no time gap was allowed for this purpose. The session was to commence from the month of May every year and for that purpose competitive examination was to be held. 11. No doubt the competitive examination has not been held for admission to the Post-graduate course. The respondent seems to be misled by the observation made by the Supreme Court in 1987 UP LB EC SC 713 (supra) as regard 5 years' period for evolving the common pattern for abolition for housemanship. The respondents construe this observation to mean that they are allowed five years time to hold competitive examination for the admission to the Post-graduate course. The construction placed by the respondents on the observations of the Supreme Court in the aforesaid authority is utterty misplaced. The respondents are, therefore, obliged to conduct the competitive examination for admission to Post-graduate Medical courses in their institution and no other method for selection to the Postgraduate course is permissible. The respondents are bound to follow the directions of the Supreme Court given from time to time in the authorities which are referred in this judgment and the method of admission to the Postgraduate course is by making a selection on the basis of competitive examination. It is not permissible to make selection for admission to the Postgraduate course on the basis of marks obtained in Illrd Final Professional examination. 12. However, the selection of the candidates who have been admitted on the basis of marks obtained in Illrd Professional M.B.B.S. examination cannot be set aside so as to allow a fresh selection on the basis of competitive examination for two reasons. In the first place, 56 students who are selected and granted admission to the Post-graduate course are not made party in the writ petition by the petitioners. In the first place, 56 students who are selected and granted admission to the Post-graduate course are not made party in the writ petition by the petitioners. The petitioners do not seek to quash their selection, therefore, no order can be passed in this petition which will have the effect of cancelling the selection of 56 candidates who are not before the Court. The petitioners were obliged to seek quashment of their selection and make them party to the writ petition as they are necessary parties. Secondly, the petitioners have been now admitted to Post-graduate course. Their only grievance is that they have not been given subjects of their choice. But they have not refuted the facts that they have accepted the admission and have not refused the offer of the respondents to admit them in some other speciality. 13. Mr. Kakkar has also relied on a Brochure issued by the All India Institute of Medical Sciences, New Delhi for conduct of competitive examination for admission to Post-graduate medical courses of 1991. He has tried to justify the method of selection by making reference to the publication issued by the All India Institute of Medical Sciences. In my opinion this publication will not in any manner dilute the effect of the direction of the Supreme Court which are binding on the respondents and on this Court also. 14. The application filed by 56 students for being made them party to the writ petition need not be allowed because their selection is not going to be affected by this order for the reasons which I have already mentioned. For the reasons stated above, it is directed that the respondents shall follow the directions of the Supreme Court in future selections to the Post-graduate course in Medical Science and shall grant admission in Postgraduate courses of Medical Science on the basis of the competitive examination and not on the basis of marks obtained by the students in Illrd Professional examination as this method is contrary to the directions given by the Supreme Court. 15. The writ petition is finally disposed of and the mandamus is refused for undoing the selection and holding a fresh entrence test, nor it is possible to give a direction to increase the seats in Post-graduate courses.