National Board Of Examinations In Medical Sciences vs Dr. Aditi Panwar And Others
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 24.02.2026
Judgment pronounced on: 18.05.2026
+ LPA 438/2025 and CM APPLs. 41843-45/2025 and
61454/2025
NATIONAL BOARD OF EXAMINATIONS
IN MEDICAL SCIENCES .....Appellant
Through: Mr. Kirtiman Singh, Sr.
Advocate with Mr. Waize Ali Noor, Mr.
Mrinal Kumar Sharma, Mr. Shashi Suman,
Mr. Varun Rajawat and Mr. Zillur Rahman,
Advs.
versus
DR. ADITI PANWAR AND OTHERS .....Respondents
Through: Mr Amarjit Singh Bedi, Mr
Varun Chandiok, Ms Riya Seth, Mr Armaan
Sharma, Advocates for R1
Mr. Mukul Singh CGSC and Mr. Aryan
Dhaka, Advocates for UOI, Mr. T.
Singhdev, Mr. Abhijit Chakravarty, Ms.
Yamini Singh, Mr. Tanishq Srivastava, Mr.
Vedant Sood, Mr. Bhanu Gulati and Ms.
Ramanpreet Kaur, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE OM PRAKASH SHUKLA
JUDGMENT
% 18.05.2026
OM PRAKASH SHUKLA, J.
1. This Letters Patent Appeal assails the impugned judgment dated
16.06.2025 passed by learned Single Judge whereby W.P.(C)
7066/2025, instituted by Respondent No. 1 herein, was allowed with a
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1
direction to de-reserve an Other Backwards Classes category seat to
2
unreserved category in the Respondent No. 3 Hospital.
2. Briefly put, the dispute revolves around the right of Respondent
No. 1, a UR candidate, to seek de-reservation of a seat in Respondent
No. 3 Hospital earmarked for OBC category, on the ground that the
seat having remained vacant in academic year 2025 due to lack of
eligible candidates, would otherwise lapse and ought to be converted
to prevent wastage.
FACTUAL BACKGROUND
3. Shorn off unnecessary details, Respondent No. 1 is a practicing
3
Radiologist who appeared for the DNB PDCET 2025 conducted by
the Appellant (National Board of Examinations). Admittedly,
Respondent No. 1 belongs to the UR category. The Appellant is the
authority that conducts the said examination.
nd
4. Upon securing 142 rank in Radio-Diagnosis in the UR
category, Respondent No. 1 chose Respondent No. 3 Hospital as her
4
first preference and Ivy Health and Life Science Punjab as the
second. As per the Indicative Seat Matrix issued by the Appellant,
only one seat was available at Respondent No. 3 Hospital which was
reserved for the OBC category. Admittedly, Respondent No. 1 was
aware that the seat belonged to OBC category and claimed that since
1
“OBC” hereinafter
2
“UR” hereinafter
3
Diplomate of National Board Post Diploma Centralised Entrance Test
4
“Ivy Health” hereinafter
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no OBC candidate had qualified as per the results of the First Round
dated 17.05.2025, the seat in Respondent No. 3 Hospital ought to be
de-reserved i.e., converted to UR category.
5. However, on the same day itself, i.e., 17.05.2025, Respondent
No. 1 was allotted her second preference i.e., Ivy Health, which she
rejected and sought a representation on 19.05.2025 seeking allotment
of the vacant OBC seat in Respondent No. 3 Hospital. Due to lack of
response, Respondent No.1 approached this Court by way of a writ
petition seeking allotment of the vacant seat reserved for OBCs.
6. The Appellant’s stance before the learned Single Judge was that
it did not have the authority to convert the OBC seat to UR quota.
However, Respondent No. 4 i.e., State of Haryana, maintained that the
impugned seat was part of the All-India Quota and that accordingly,
the Appellant was the competent authority to de-reserve the seat.
Respondent No. 5, Union of India, vide letter dated 10.06.2025 also
directed Respondent No. 1 to take a decision in light of the learned
Single Judge’s order dated 29.05.2025 and “defend the case on behalf
of the Ministry”.
7. The Appellant placed reliance on Clause 4.6 of the Handbook
of Centralised Merit Based Counselling for Admission to Post
5
Diploma DNB Courses (2025 Admission Session) and minutes of
th 6
their 15 Accreditation Committee Meeting dated 09.08.2024 . Clause
4.6 of this Handbook stipulated that the Appellant was not authorised
5
“Handbook” hereinafter
6
“MoM” hereinafter
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to convert a vacant seat reserved under one category to another
7
reserved category. Further, the MoM indicate that if PD DNB seats
are left vacant after all rounds of counselling, then they shall be added
8
to the pool of NEET PG seats for that academic year to avoid wastage
of medical seats.
8. The learned Single Judge noted that the impugned seat fell
under All-India Quota. It was opined that Clause 4.6 was not
applicable since the dispute did not concern conversion of the seat
from one reserved category to another reserved category but to the UR
quota. It was further reasoned that the MoM did not apply since it
pertained to seats that remained vacant post PD DNB counselling,
which was still ongoing at that time.
9. In light of the above, the writ petition was allowed with the
direction that the impugned OBC seat be converted to UR category
and offered to all candidates, including Respondent No. 1, in the order
of merit, who indicated preference for the said seat of Respondent No.
3 Hospital in either first or second round of counselling.
10. Aggrieved, the present intra-court appeal was preferred by the
Appellant assailing the aforementioned direction of de-reservation of
the impugned seat and conducting re-counselling for allotment of the
said seat.
7
Post Diploma Diplomate of National Board
8
National Eligibility cum Entrance Test for Postgraduate
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SUBMISSIONS
11. Mr. Kirtiman Singh, learned Senior Counsel on behalf of the
Appellant vehemently opposed the impugned judgment. It was
submitted that Respondent No. 1 wrongfully applied for the OBC
quota seat since she belonged to UR category and that since the
prospectus did not have any provision for de-reservation, there existed
no right to claim de-reservation or conversion, especially considering
that Respondent No. 1 was already allotted a seat in Ivy Health. It was
also submitted that the direction in the impugned judgment was
inherently incorrect since it would entitle all candidates, UR or
reserved to be eligible for an OBC quota seat.
12. It was argued that de-reservation was inconsistent with the
MoM wherein it was decided that seats remaining vacant after all
rounds of counselling, would be added to the NEET PG pool.
Therefore, prematurely de-reserving before all rounds of counselling
would reduce the NEET PG pool. It was clarified that since the seats
were available all over the country, the OBC reservation would be as
per the Central list and not the State list. It was further submitted that
the Appellant does not change the nature of the seat, only sends it to
the NEET PG pool, then the Union may treat them as per their
prerogative.
13. Mr. Singh contended that the Appellant did not have the
authority to de-reserve the impugned seat since it did not own or
control any of the hospitals/medical colleges by placing reliance on
Clause 4.6 of the Handbook. It was argued that the learned Single
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Judge wrongly construed Clause 4.6 to apply only to cases which
involve conversion from one reserved category to another reserved
category and not to UR category. It was submitted that the State
provides eligibility criteria for admission in medical colleges,
including the seat matrix. Reliance was placed on State of Rajasthan
9
& Ors. v. Yogesh Kumar Saini & Ors. , Neil Aurelio Nunes (OBC
10
Reservation) & Ors. v. Union of India & Ors. , D.N. Chanchala v.
11
State of Mysore & Ors. and Kumari Chitra Ghosh & Anr. v. Union
12
of India & Anr. . Reliance was also placed on Clauses 3.27 and 3.28
of the Handbook to contend that Respondent No. 1 was not eligible to
participate in the mop-up/final round of counselling since she was
already allotted a seat in the first round.
14. The learned Senior Counsel submitted that the direction of the
learned Single Judge regarding offering the impugned seat to all
eligible candidates would open floodgates since some of the
candidates have already joined their allotted seats and therefore
vacating their seats at this belated stage would cause a cascading
effect. It was submitted that practical issues would arise since the
candidates who opted for the impugned seat would be under OBC
quota and hence, instead of considering them, 141 UR candidates,
higher in merit than Respondent No. 1, would be considered for the
said seat. It was also argued that counselling process cannot be
conducted endlessly, as also held in Arvind Kumar Kankane v. State
13
of U.P. & Ors. , Dr. Astha Goel & Ors. v. Medical Counselling
9
2020 SCC OnLine Raj 1110: (2020) 3 RLW 1974
10
(2022) 5 SCC 1
11
1971 (2) SCC 293
12
(1969) 2 SCC 228
13
(2001) 8 SCC 355
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14 15
Committee & Ors. , Neelu Arora (Ms) & Anr. v. UOI & Ors. and
16
Supreet Batra & Ors. v. UOI & Ors. .
15. The learned Senior Counsel brought the attention of this Court
to order dated 28.07.2025, particularly paragraph no. 7 to highlight the
issues in controversy and also submitted that Respondent No. 4
(Union) did not take a clear stance before the learned Single Judge as
to the Appellant’s authority to de-reserve the impugned seat.
16. Per contra, the learned Counsel for Respondent No. 1
submitted that the impugned judgment warranted no interference by
this Court. It was highlighted that it is a settled principle that medical
seats ought not to be carried forward and are alive for that particular
academic session, as also recognised in Appellant’s Handbook.
Further, that since no OBC candidate had qualified in Radiology, as
evident from the Revised Allotment lists released by the Appellant, it
was submitted that the seat be converted to UR quota to avoid
wastage. The learned Counsel emphasised that reserved seats for PD
DNB in Radio-Diagnosis, both State and All-India quota, were going
vacant for several years and hence, the seat ought to be de-reserved.
Reliance was placed on the ‘Note’ of Union of India which stipulates
that OBC seats remaining vacant shall be converted to UR. It was
emphasised that the said Note was not disputed by the Appellants. It
was also submitted that the Appellants, for their other examination,
apply the policy of conversion even after two rounds of counselling
and that institutions such as AIIMS, PGI etc. also provided for de-
14
(2022) 19 SCC 695
15
(2003) 3 SCC 366
16
(2003) 3 SCC 370
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reservation of seats.
17. It was submitted that MoM had no bearing on the present
controversy and the learned Counsel called for a harmonious reading
of the MoM. The following contentions were advanced in that regard:
(i) MoM was not part of initial prospectus and hence could
not be relied upon now.
(ii) The object of the MoM is that no medical seat should go
unfilled. However, there is misconstruction by Appellant that
“all rounds of counselling” does not mean three rounds but
rather, reference is made in spirit that the seats must be offered
to all candidates once. Thus, the last round of counselling would
include conversion and even after that if there are no takers, the
seat may be added to NEET PG pool.
(iii) MoM do not proscribe conversion of seats to UR
category. In fact, MoM pertains to all seats and not just reserved
seats, which implies that if even after converting the seats, they
aren’t filled, they should be transferred to the NEET PG pool.
(iv) Appellant’s contention is flawed since if all vacant seats
are to be transferred, this means that even reserved seats will be
transferred to NEET PG UR quota.
(v) PG DNB courses are for candidates with clinical
experience seeking higher qualification and not fresh MBBS
graduates, hence the conversion to NEET PG pool must be the
last resort after considering all diploma-qualified candidates. To
do otherwise would frustrate the object behind PDCET
pathway.
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18. The learned Counsel placed reliance on Era Lucknow Medical
17
College & Hospital v. State of U.P. , Archana Thakur v. State of
18
Himachal Pradesh & Ors. , Nihila P. P. v. Medical Counselling
19
Committee (MCC) & Ors . and State of U.P. & Anr. v. Bhavna
20
Tiwari & Ors.
ANALYSIS
19. I have heard both the parties and perused the material on record.
20. This Court, vide order dated 28.07.2025, stayed the operation of
the order passed by the learned single judge and meanwhile directed
impugned seat would not be transferred to the NEET PG pool.
21. It is a settled law that an LPA is an appeal in principle and that
the scope of interference is strictly correctional in nature. An appellate
court may only intervene if the impugned judgment suffers from a
21
patent error. Being aware of the scope of interference available, I
shall deal with this matter, keeping in the mind the settled principles
of interference in an LPA.
22. At the outset, it is important to note that Respondent No. 1 was
a UR candidate and had opted for an OBC seat in Respondent No. 3
17
2024 SCC OnLine SC 3888
18
2018:HHC:652-DB; CWP No. 1992 of 2017, order dated 12.01.2018
19
2021 SCC OnLine SC 3283
20
2025 SCC OnLine SC 1357
21
Baddula Lakshmaiah v. Sri Anjaneya Swami Temple, (1996) 3 SCC 52 ; Delhi Transport Corporation v.
Shri Bahadur Singh , 2026:DHC:1912-DB
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Hospital. It was for this very reason that she was not allotted the said
OBC seat in the Respondent No.3 Hospital (her first preference), as
also admitted in her representation dated 19.05.2025.
23. I also note that she was allotted a UR seat in Ivy Health (her
second preference) however, she declined the said allotment and
instead submitted the aforesaid representation dated 19.05.2025 for
de-reservation of the OBC seat at Respondent No. 3 Hospital, on the
ground that Ivy Health is a private hospital and the vacant seat would
otherwise lapse for want of qualified OBC candidates in the relevant
academic year.
24. On the other hand, the Appellant contends that opting for a
reserved seat by a UR candidate is void ab initio, and in any case, the
said seat could not be allotted to Respondent No. 1 as per the
Handbook as she had already rejected her allotment of seat in Ivy
Health.
25. The issue is not whether Respondent No.1 validly applied and
opted for the OBC seat, or whether such a seat could be offered to her
as per the Handbook. Rather, the issue pertains to de-reservation of an
OBC seat, which according to this Court, is a matter of wider import
with far reaching ramifications.
26. Accordingly, the issues raised by the Appellant relating to the
Respondent No.1, need not detain us further.
27. At this juncture, it would be in best interest that I enumerate the
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issues which fall for our consideration in this appeal, as follows:
(i) Whether the learned single was correct in de-reserving
the impugned seat for the PD DNB courses, which was
otherwise lying vacant due to non-availability of any eligible
OBC category candidate, and offering the same to eligible
unreserved candidates, if any?
(ii) An ancillary question would arise as to the competent
authority to give effect to such de-reservation, if required.
28. Needless to say, both these issues must be evaluated in
accordance with the material placed on record concerning the process
of admission for DNB PDCET 2025, the MoM of the Appellant and
the applicable law.
29. There is no doubt that reservation is not against equality,
reservation is indeed a tool for social justice. Article 15(5) of the
Constitution of India enables the State to make special provisions for
the advancement of socially and educationally backward classes for
admission in educational institutions. Notably, there is no distinction
carved out between Under Graduate and Post Graduate courses.
30. No doubt, sometimes constitutional courts have remarked that
there cannot be reservation in super speciality courses. However,
neither the Hon’ble Supreme Court nor this Court has held in any case
that reservations in super speciality courses are impermissible
altogether. Additionally, it is nobody’s case before us that reservation
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is not permissible altogether.
31. Thus, it was in this background that the sole seat of DNB
PDCET (Radio-Diagnosis) in the Respondent No.3 Hospital was
reserved for OBC category candidates.
32. Adverting to the issue of whether this seat could be de-reserved
or not. I find that in this regard, Respondent No. 1 claims that the
OBC seat ought to be de-reserved to prevent wastage since there were
no eligible OBC candidates. It relies on a ‘Note’ purportedly issued by
Respondent No. 4 (UOI), titled “The mode of implementation of OBC
and PH Reservation in 50% All India Quota PG Seats”. This note
provides that , “In the event of exhausting of OBC seats under All
India Quota no OBC candidates can claim OBC seats. The seat if not
filled for want candidate, they can be treated as with UR as in the
case of SC/ST.”
33. However, a plain reading of this ‘Note’ reveals that it is not
accompanied by any covering letter or signatory or attestation by the
relevant authority. Further, upon a closer examination, this ‘Note’
states , “This proposal will be tried this year during the PG
counseling-2009. Problems and difficulties if any arises during
implementation of this Scheme can be studied and evaluated over a
period of 2-3 years so that improvements of the ‘Scheme’ can be
made”. Arguendo, considering this ‘Note’ to be authoritative, it is
only a proposal to be adopted for 2009 PG counselling and hence, not
binding. Thus, the said “Note” does not come to the rescue of the
Respondent No.1, however the ground of wastage of seats as argued
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by the learned Counsel for the Respondent No.1 still remains.
34. Moving forward, the Hon’ble Supreme Court, in catena of
judgments including Era Lucknow Medical College (supra) , has held
that non-filling of medical seats amounts to national wastage and has,
from time-to-time, devised various mechanisms for filling these
medical seats, including even extending the last date of admission,
which is ordinarily considered to be sacrosanct.
35. This Court does not wish to burden this judgment with a
discussion of these precedents. However, it remains evident that the
Supreme Court has, on several occasions, intervened to minimise the
wastage of medical seats in our country, keeping in view the abysmal
doctor-population ratio.
36. Interestingly, the opposing parties before us premise their case
on the proposition that medical seats need not go vacant, though they
adopt different approaches to achieve this result. Respondent No. 1
contends that the seat ought to be de-reserved to prevent its lapse, and
the Appellant contends its addition to the NEET PG pool.
37. Therefore, apparently there is no quarrel as far as the
proposition of law is concerned relating to wastage of medical seats.
38. Thus, the issue which boils down to the eye of a needle is
whether the OBC category seat should be de-reserved as proposed by
Respondent No. 1, as it is lying vacant in view of non- availability of
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any OBC category candidate or be converted for NEET-PG as
contested by the Appellant.
39. At this juncture, it would be helpful, if I would refer to some of
the authorities rendered by the apex court from time to time. The same
would help in understanding whether de-reservation of any vacant seat
is itself permissible in law or not.
40. The constitutional bench of the Supreme Court in Ashoka
22
Kumar Thakur v. Union of India opined that remaining vacant
OBC seats be reverted to general category. It was held that after
excluding creamy layer and applying reasonable OBC cut-off norms,
if OBC seats still remain vacant, they may be filled by general
category candidates. The relevant observation highlighting these
findings are reproduced below:
“Per Dr. Arijit Pasayat, J. (For himself and C.K. Thakker, J.)
“ 358. To sum up, the conclusions are as follows:
…(3) The Central Government shall examine as to the desirability
of fixing cut-off marks in respect of the candidates belonging to the
Other Backward Classes (OBCs). By way of illustration it can be
indicated that five grace marks can be extended to such candidates
below the minimum eligibility marks fixed for general categories of
students. This would ensure that quality and merit would not suffer.
If any seats remain vacant after adopting such norms they shall be
filled up by candidates from general categories.”
Per Dalveer Bhandari, J.
“ 629 [Ed. : Para 629 corrected vide Official Corrigendum No.
F.3/Ed.B.J./41/2008 dated 6-6-2008.]
22
(2008) 6 SCC 1
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Finding 68% reservation in educational institutions
excessive, Balaji [AIR 1963 SC 649 : 1963 Supp (1) SCR 439] , at
SCR pp. 470-71 admonished States that reservation must be
reasonable and balanced against other societal interests. States
have
“to take reasonable and even generous steps to help the
advancement of weaker elements; the extent of the problem must be
weighted, the requirements of the community at large must be
borne in mind and a formula must be evolved which would strike a
reasonable balance between the several relevant considerations”
(AIR p. 663, para 34).
To strike such a balance, Balaji [AIR 1963 SC 649 : 1963 Supp (1)
SCR 439] slashed the impugned reservation from 68% to less than
50%. Balaji [AIR 1963 SC 649 : 1963 Supp (1) SCR 439] thus
serves as an example in which this Court sought to ensure that
reservation would remain reasonable. We heed this example. There
should be no case in which the gap of cut-off marks between OBC
and general category students is too large. To preclude such a
situation, cut-off marks for OBCs should be set no lower than 10
marks below the general category. To this end, the Government
shall set up a committee to look into the question of setting the
OBC cut-off at not more than 10 marks below that of the general
category. Under such a scheme, whenever the non-creamy layer
OBCs fail to fill the 27% reservation, the remaining seats would
revert to general category students.”
(emphasis supplied)
41. It could be understood from the above reading that if eligible
non-creamy layer OBC candidates are not available, the leftover
reserved seats should not remain empty and they should be converted
to unreserved category.
42. The issue of de-reservation of OBC category candidate and the
decision in Ashok thakur (supra) was elucidated by supreme court in
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23
P.V. Indiresan(2) vs. Union of India and Ors. The Supreme Court
held that if OBC seats remain vacant after applying the applicable
qualifying norms, such seats may be filled by candidates from the
unreserved category. The relevant para capturing these finding is
reproduced below:
“54. We, therefore, dispose of this appeal, affirming the decision
dated 7-9-20103 of the learned Single Judge of the High Court,
subject to the clarifications/observations above, and subject to the
following conditions:
(i) In regard to the admissions for 2011-2012, if any Central
educational institution has already determined the "cut-off marks"
for OBCs with reference to the marks secured by the last candidate
in the general category, and has converted the unfilled OBC seats
to general category seats and allotted the seats to general category
candidates, such admissions shall not be disturbed. But where the
process of conversion and allotment is not completed, the OBC
seats shall be filled by OBC candidates.
(ii) If in any Central educational institution, the OBC reservation
seats remain vacant, such institutions shall fill the said seats with
OBC students. Only if OBC candidates possessing the minimum
eligibility/ qualifying marks are not available in the OBC merit
list, the OBC seats shall be converted into general category seats .
(iii) If the last date for admissions has expired, the last date for
admissions shall be extended till 31-8-2011 as a special case, to
enable admissions to the vacant OBC scats.”
43. The proposition laid down in P.V. Indiresan(2) (supra) that a
reserved seat should not remain vacant merely because it was
originally earmarked for a reserved category, was also followed by the
learned single judge of this court in Sanchi Dilavri vs. University Of
24
Delhi and Anr . The learned single judge accepted the reasoning that
after non-availability or exhaustion of all the eligible reserved
23
(2011) 8 SCC 441
24
2019 SCC OnLine Del 10879
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category candidates, the seat can be considered for unreserved
category so that it is not wasted. The relevant observations for the
same are as follows:
“39. The other argument advanced by Mr. Rupal that the petitioner
cannot be admitted to the EWS category against a seat reserved for
the EWS category would have had merit if the students in the EWS
category were available for the admission. The EWS category seat
is lying vacant.
40. It is only when Mr. Rupal was asked to inform the Court as to
whether any seat was available in the morning session was this
information supplied to the Court.
41. Insofar as the Division Bench judgement in Pankaj Kumar
Tiwari case is concerned, the same has no bearing on the point in
issue. The point in issue is: as to whether an EWS seat could be
accorded to a General category candidate.
42. Pankaj Kumar Tiwari was a case wherein the petitioners
alleged that there were irregularities in the admission process and
therefore directions were sought for the constitution of an
independent panel under the aegis of the Court for investigation of
the irregularities and, furthermore, as a consequential relief,
cancellation of admission of candidates who are found ineligible.
No such issue arises in the instant case. Hence, the judgement is
distinguishable.
43. Ordinarily the reserved seat should go to a candidate who
falls in such a category. If, however, no candidate is available in
the reserved category, the seat ought not to be wasted only
because the person seeking admission belongs to the General
category.
44. This following principle is articulated by the Supreme Court in
the matter of P.V. Indiresan v. Union of India, (2011) 8 SCC 441:
“54. We, therefore, dispose of this appeal, affirming the
decision dated 7-9-2010 [Apurva v. Union of India, WP
(C) No. 4857 of 2010 order dated 7-9-2010 (Del)] of
the learned Single Judge of the High Court, subject to
the clarifications/observations above, and subject to the
following conditions:
xxx xxx xxx
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(ii) If in any Central educational institution, the OBC
reservation seats remain vacant, such institutions shall
fill the said seats with OBC students. Only if OBC
candidates possessing the minimum
eligibility/qualifying marks are not available in the
OBC merit list, the OBC seats shall be converted into
general category seats. …”
25
44. In Dr. Sandeep Dhama v. State & Anr ., the single bench of
this court through Manmohan, J (as his lordship then was), approved
the method where a reserved “roster seat” in PG medical counselling
is vacated, the method was that it must first be offered to candidates of
the same reserved category in order of merit till category are
exhausted, and only thereafter can the seat be converted in terms of
Government of India Rules or guidelines. The relevant observation of
the same are as follows:
“5. I had requested Mr. Sanjay Jain, learned Additional
Solicitor General to look into the matter. I am informed that Mr.
Jain along with Mr. Jasmeet Singh, CGSC held meetings with the
petitioner as well as Mr. Tanoobhav Singhdev, learned counsel for
Medical Council of India and Mr. Vaibhav Kalra, learned counsel
for respondent no. 2-University. Mr. Jain has submitted that the
method of counselling adopted by the respondent no. 2 to add the
surrendered seat in the general pool for the next round of
counselling, upon the same being surrendered by a reserved
category student, is clearly not the best method for counselling,
since a seat which is once offered to a reserved category student as
per the roster point and is subsequently surrendered, must be
offered to the next same category student as per merit in the next
round of counselling. If the same is accepted then the baton rests at
the last person selected in the category, in question and if the same
is not accepted the baton continues to be passed till the last eligible
candidate of the same category accepts the offer. In the event the
last such candidate also declines to accept the seat to surrendered,
then it would revert to the General category from the roster point
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next to the first such reserved category candidate, who had refused
to accept such surrendered seat in the second round.
6. The counsel appearing for the respondent no. 2-University had
fairly stated that the University was open to revisit the method of
counselling as adopted by them. 7. Pursuant to the order dated 23rd
December, 2014 passed by this Court, respondent no. 2-University
had filed an additional affidavit on 3rd February, 2015 placing on
record copy of the minutes of the meeting dated 13th January, 2015
and revised procedure for counselling for Post Graduate Medical
Course being conducted by the University 2015-16. The relevant
paragraphs 3 and 4 of minutes of meeting are reproduced as under:-
“3. In case, no vacancy arises on account of
withdrawal or otherwise as explained above, after
the first counselling, the second counselling will be
conducted only for the candidates who had
registered but were absent or not opted/allotted any
seat during the first counselling in the order of CET
merit/rank and only the left over seats of first
counselling will be offered to such candidates. The
second counselling will start from the next rester
point, at which first counselling was closed.
4. In case of vacancy arises on account of
withdrawal or otherwise after the first counselling,
the following procedure will be adopted.
“From the allotted seats, from whatever roster point,
the vacancy has arisen, in any particular category,
then the seat shall be offered to the same category
eligible candidate merit rank-wise till all eligible
candidates of that category are exhausted, after
which the conversion of seat shall be done as per
GOI rules.”
8. The said minutes of the meeting were forwarded to the Director
General Health Services vide letter dated 22nd January, 2015 for
their concurrence and/or suggestions. The Director General Health
Services gave its concurrence vide letter dated 5th February, 2015
which was taken on record on 11th February, 2015.
9. Subsequently, vide order dated 11th February, 2015 the
respondent no.2-University was directed to file a supplementary
affidavit in order to place on record an illustration to explain the
procedure for conducting second round of counselling and matter
was adjourned to 20th February, 2015. In compliance thereof, the
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respondent no.2-University placed on record the illustration vide
supplementary affidavit dated 18th February, 2015.
10. However the Court was not satisfied with the contents of the
supplementary affidavit dated 18th February, 2015, accordingly,
the respondent no. 2-University was directed to file another
appropriate affidavit in terms of order dated 20th February, 2015.
In compliance of the said order, another supplementary affidavit
was filed by the respondent no.2-University on 27th February,
2015 amending para 3. The amended para 3 is as under:-
“3. That if pursuant to the first round
of counselling, any student who vacates the seat
allotted, during the first round of counselling then
the second round of counselling will start from the
Roster Point at which the first withdrawal comes
from. It is further submitted that while conducting
the second round of counselling the category of the
student vacating the seat shall be considered and all
those students who belong to the said category shall
be called first merit-wise and once the list of such
category of students is exhausted, the seat shall be
converted in terms of the Government of India Rules
i.e. if a student who was allotted a seat at Roster
Point 85 in the category of OBC, vacates the seat
after the first round of counselling, the second round
of counselling will start from roster point 85. It is
further submitted that while filling up Roster Point
85, all students belonging to the OBC category who
were allotted the seat at the various roster points
after roster point 85 (for example at roster point 90,
95) during first round of counselling shall also be
called and offered the said vacated seat in the second
round of counselling. It is further clarified that
before calling all the OBC candidates who were
allotted seat during first round of counselling i.e.90
and 95, the vacated seat shall first be offered to OBC
candidate who is higher in the OBC merit list than
the one who was allotted the seat at Roster Point 85
as per their CET ranking but had not opted for any
seat in the first round of counselling. In case he
accepts the seat then the second round of counselling
shall start from Roster point 121 when the first
round of counselling ended at roster point 120,
however if he does not accept the seat then the seat
shall be offered to the OBC candidate who come
after the Roster Point 85 i.e. Roster Point 90 of 95
till all the OBC students are called and offered the
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seat. If none of the students belonging to OBC
category accepts the said seat, the said seat shall
thereafter be converted in terms of the Government
of India guidelines. However, in case, any OBC
candidate who was already allotted a seat in first
round of counselling accepts the said seat, the
second round of counselling shall continue from the
next roster point i.e. Sl.No. 86 but in case the said
vacated seat is accepted by an OBC candidate who
was not allotted any seat in the first round of
counselling then the second round of counselling
shall continue from roster point 121.”
11. The counsel for Union of India sought time to look into the
affidavit filed by the respondent No.2 University. Thereafter the
respondent No.2 has filed/placed on record another affidavit dated
9th April, 2015 further amending the para 3 of the additional
affidavit the relevant portion of the amended para 3 is as under:-
“3. That if pursuant to the first round of counselling,
any student who vacates the seat allotted, during the
first round of counselling then the second round of
counselling will start from the Roster Point at which
the first withdrawal comes from. It is further
submitted that while conducting the second round of
counselling the relevant category of the student
vacating the seat shall be considered and all those
students who belong to the same category shall be
called after the vacated position on the basis of their
placement in the merit list of the relevant category.
Once the list of such category of students is
exhausted, the seat shall be converted in terms of the
Government of India Rules. For example, if a
student who was allotted a seat at Roster Point 85 in
the category of OBC, vacates the seat after the first
round of counselling, the second round of
counselling will start from roster point 85. It is
further submitted that while filling up Roster Point
85, all students belonging to the OBC category who
come after the student who was offered/allotted the
seat at Roster Point 85, will be called merit wise
irrespective of whether they were allotted or offered
the seat during first round of counselling or not (for
example at roster point 90, 95, 100, 119) during
second round of counselling till all the OBC students
are called and offered the seat. If none of the
students belonging to OBC category accept the said
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seat, the said seat shall thereafter be converted in
terms of the Government of India guidelines.
In case, any OBC candidate who comes in the merit
list after the student at Roster Point 85 who did not
opt for the seat offered to him during the first round
of counselling but is higher in the merit than the
student who was allotted the seat on the next roster
point during first round of counselling (i.e. 90, 95,
100....) then that student shall be offered the seat so
vacated prior to the such student who was already
allotted the seat on the next roster point in terms of
merit. If such a student who was offered a seat but
he did not opt for the seat accepts the vacated seat
the second round of counselling shall proceed from
roster point 121. However, if he does not accept the
seat the procedure as mentioned below shall be
adopted.
In case, any OBC candidate who has already been
allotted a seat in first round of counselling accepts
the said seat vacated by the OBC candidate for e.g.
at roster point 90, the seat of the roster point 90 now
vacated shall be offered to the next OBC candidate,
i.e., 95. If 95th accepts the offered seat, then the seat
of the 95th Roster point shall be offered to student at
Roster Point 100. If 100th accepts the offered seat,
then the seat of the 100th Roster Point shall be
offered to the student at Roster Point 119. Since the
student at Roster Point 119 is the last selected
candidate in the first round of counselling in the said
category the seat so surrendered by him shall be
offered to the next OBC candidate as per merit. If
the next student as per merit, accepts the seat then
the second round of counselling will proceed from
Roster Point 121 as the first round of counselling
ended at Roster Point 120. However, if he refuses
to accept the seat, the said seat shall be offered to
the next OBC in the merit list till such time the
said seat is accepted by an OBC candidate.
However, if no OBC candidate accepts the seat
surrendered by 119, then it shall be converted in
terms of Government of India Guidelines and
shall be offered to a student of such converted
category next on the merit list, irrespective of him
being allotted a seat at a lower roster point wise
in the first round of counselling.
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That if student at roster point 90 refuses/rejects the
stream vacated at the roster point 85 then the same
shall be offered to student at Roster Point 95 and so
on (100, 119..... till the last OBC candidate merit
wise) and in case any student accepts the vacated
stream, the procedure as above shall continue.
However, if the seat is accepted by a student who
was not allotted any seat in the first round of
counselling, the second round of counselling shall
begin from roster point 121 as the first round of
counselling ended at 120.”
12. The said method of counselling as contained in the affidavit
dated 9th April, 2015 filed by respondent no. 2-University,
elucidated in paragraph 11 of this order is the most fair and
transparent method of granting admissions to the various Post
Graduate Medical courses of respondent no. 2 from academic
year 2015-16”.
45. Further, in Archana Thakur (supra) , a Division Bench of the
Himachal Pradesh High Court directed de-reservation of remaining
vacant medical seats. The relevant excerpt is thus:
“6. The moot issue involved in this writ petition is as to whether in
the admission process, which is initiated by respondent No. 2, in
case sufficient number of candidates belonging to SC and ST
categories are not available and the seats are lying vacant,
whether these seats can be filled up from amongst the candidates
of general category, who otherwise are eligible for admission, as
per the merit secured by them in the entrance examination or the
seats should be allowed to remain unfilled?
*
8. It is common knowledge that seats available in various academic
courses in colleges and universities are far below the number of
applicants. This obviously means that sears are at a premium and
all efforts should be made to ensure that as far as possible, the
seats are not wasted. It is relevant to refer to the judgment of
Hon’ble Supreme Court in Charles K. Skaria and others Vs. Dr. C.
Mathew and others, (1980) 2 Supreme Court Cases 752, in which
Hon'ble Supreme Court has observed that welfare-oriented judicial
process must be constructive in its objective, must be geared to
order as its goal and must pave the way for resultant contentment.
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9. It is not a disputed factual position that vacant seats belonging
to reserve category even in courses like MBBS, are not allowed to
remain unfilled. A seat which is reserved for Scheduled Caste
category, is firstly offered to a candidate belonging to Scheduled
Tribe category if it is not filled up by a Scheduled Caste candidate
and if the seat even after being offered to Scheduled Tribe
candidate remains unfilled, same is thereafter offered on merit to
open category candidate. This factual position could not be
disputed even by the State during the course of arguments.
*
13. Accordingly, we dispose of this petition with the direction to
respondents No. 1 and 2 that for academic Sessions necessary
instructions be imparted to the effect that vacant reserved seats
meant for SC and ST categories in educational institutes including
Schools, Colleges and Universities, which remain unfilled after
exhausting the list of available and eligible SC and ST candidates,
should be thereafter offered and filled from amongst eligible
candidates from open category on the basis of merit. We clarify
that in case any cut off limit has been fixed, then only those
candidates of open category should be admitted against the vacant
seats, who have gained marks at par with the cut off limit.”
(emphasis supplied)
46. It may be kept in mind that generally the apex court has
proscribed de-reservation in direct recruitment, the same can be
inferred from the judgment of Supreme court in Post-graduate
26
Institute of Medical Education and Research v. K.L Narasimhan .
However, in the present case, this court is concerned with the
reversion of Unfilled reserve seats of OBC category in educational
admissions, because of non-availability of any eligible OBC category
candidates and not any sort of recruitment. Thus, in light of the Ashok
Thakur (supra), P.V. Indiresan (2) (supra), Sanchi Dilavri (supra),
Dr. Sandeep Dhama (supra) and Archana Thakur (supra), I do not
find any specific bar or mandate which proscribes reversion of
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unfilled OBC category seat to unreserved category, in times of non-
availability of any OBC category candidate in medical admissions.
47. Thus, from the various authorities mentioned above, it is clear
that the courts are not alien from converting the vacant reserved seats
to unreserved category, where there is non-availability of eligible
reserved candidates.
48. Although one can still argue that there is no statutory provision
or executive mandate which requires the court to de-reserve or there is
no binding law as such which would automatically require conversion
of a reserved DNB PDCET seat into unreserved. However, in the facts
and circumstances of this case, according to me, offering the seat to
eligible unreserved category candidate after duly placing them upon
the eligible OBC candidate would be the most fair and transparent
option and would be in line with the various authorities mentioned
above.
49. Clearly, the courts in our country have stressed from time to
time that medical seats should not be wasted. There is no doubt that
reservation as a constitutional right be given full opportunity but once
there is no eligible candidate available, wasting the seat would not
serve the purpose of reservation.
50. Leaving the seat vacant would not benefit reserved category,
because no eligible candidate is available, neither it would benefit the
public. Therefore, in these circumstances, once there is no eligible
reserved candidate available, wastage of seat would lead to
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obstruction of public interest.
51. Medical seats especially in government universities are a scarce
public resource in our country, as the alternative lies in private
universities, which are exceptionally costly. In these circumstances,
converting the seat, in absence of any explicit bar, is clearly
beneficial.
52. Additionally, if the path of transferring the seat to NEET PG
pool is followed, that would run contrary to the very basic reason as to
why these seats were created in the first place i.e. To train these
individuals, specifically those qualified in that particular field, for that
specific training course.
53. Thus, the creation of any seat in the specialised or super
specialised courses is to train eligible people for that very course, if
the seat is transferred to some other pool or category that very purpose
of existence of that seat gets defeated.
54. In the same breath, it would not in any way mean that the seats
of reserved category people are taken away, as the seats are not being
converted because of denial of reservation to the reserved category,
the seat are being converted because no eligible reserved candidate
was anyways available after proper efforts.
55. This explains the reason why the supreme court adopted a
balance approach in P.V. Indiresan (2) (supra) and Ashok thakur
(supra). The supreme court adopted an approach where there is to first
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fill the vacant seat with the OBC category candidates only and only if
OBC candidates possessing minimum eligibility are not available, the
seats can be converted to unreserved category candidates, if any.
56. This approach makes sure that seats are not taken away from
reserved category candidates and given to unreserved candidates.
Additionally, it makes sure that the decrease of seat in totality, if any,
happens due to non-availability of any eligible candidate and not
because of denial of reservation to the Unreserved category.
57. Be that as it may, I also must say that, in any circumstance, the
conversion should not be used as a tool to defeat reservation. The
reservation in all forms must be respected and ensured, the conversion
should only be done in exceptional circumstance, where there are no
reserved category candidate available, and to prevent wastage.
58. Having said that, I shall now proceed to deal with submissions
raised at the bar.
59. Much reliance has been placed by the Appellant on the MoM to
buttress their argument that the said DNB PDCET (Radio-Diagnosis)
seat has to be converted into a NEET-PG seat. We find it appropriate
to reproduce the relevant excerpt of the MoM as follows:
“In view to prevent the wastage of seats, the following is proposed.
Post Diploma DNB seats counseling should be conducted prior to
MCC counseling. Post Diploma DNB counseling should be
completed at least 1 month prior to commencement of NEET PG
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counseling.
Post Diploma DNB seats remaining vacant should be converted
into DNB seats for that particular admission session and submitted
to MCC for inclusion in NEET PG counseling (after approval from
the concerned hospitals).
Decisions:
The committee expressed that on one hand there is requirement to
increase the seats, but hundred of seats are remaining vacant for
Post Diploma DNB courses.
The members agreed that post diploma seats should not remain
vacant. The following measures to be taken to prevent wastage of
seats:
All the rounds of post diploma counseling should be completed
atleast 45 days before the commencement of post MBBS
counseling.
The post diploma seats remaining vacant after the counseling are
to be converted to post MBBS seats for that particular session only.
Such post MBBS seats created as explained above should be taken
up for post MBBS Counseling, with the consent from the concerned
hospitals.
Challenges, if any, in Implementation of the above are to be
brought to the notice of this committee.”
60. The abovementioned MoM clarifies the objective of the
Appellant to prevent wastage of seats. It is made out that PD DNB
counselling is to be concluded a month prior to that of NEET PG
counselling so that vacant seats, if any, be added to the latter pool.
61. According to this Court, from a plain reading of the MoM itself,
27
it is clear as day that the Post Diploma seats can be converted only
after all the rounds of counselling are over and that it should be
27
“PD” hereinafter
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completed 45 days prior to the start of NEET-PG counselling, which
clarifies that in all circumstances, the left-over PD seats are to be
converted and should not remain vacant. Thus, I have no hesitation in
holding that the impugned seat for the session 2025 could have been
very much de-reserved to UR category, and accordingly offered to
meritorious candidates and in case, there were still vacant seats due to
any reasons, they could be converted into a NEET-PG seat as per the
MoM. In the present case, at the time when the impugned judgment
was rendered, counselling for PD DNB was ongoing, hence, there was
no scope to fast-track the said seat, so as to countenance its conversion
into a NEET PG Counselling seat.
62. The next ancillary question, which crops up is as to which
authority was entrusted to de-reserve the said seat. In this regard, I
deem it fit to reproduce Clause 4.6 of the Handbook as follows:
“4.6. NBEMS does not own or control any of its accredited
hospitals. NBEMS neither employs a candidate nor itself makes
any payment /stipend to the candidate. Reservation status of DNB
seats at a particular institution/medical college is provided by the
State /Central/ UT Governments and /PSU/ Railway Board/ESIC
etc. only based on the reservation roster maintained by them.
NBEMS does not own, possess or fund any seat. Reserved seats
will be allotted to the concerned category candidates only.
Candidates of reserved category can opt for either reserved seats
earmarked for them or unreserved seats in order of their merit. The
conversion of any vacant seat from one reserved category to
another reserved category does not falls within the purview of the
NBEMS.”
63. From a plain reading of the above Clause, it is made out that the
Appellant does not own or control any seat in the accredited colleges.
Further, it is also made out that what is proscribed is the conversion of
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a vacant seat from one reserved category to another reserved category;
it is silent on conversion to the UR category. No doubt, in view of the
fact that the Appellant does not own, possess or fund any seats, it can
be well argued that the Appellant has no authority to reserve or de-
reserve. However, while I have held that there is no impediment for
de-reservation of the seats from OBC to UR, this Court finds that the
learned Single Judge’s direction to de-reserve the OBC seat after
taking into account the denial of Respondent No. 5 (State of Haryana)
and the affirmative direction of Respondent No. 4 (UOI) to the
Appellant is fallacious, inasmuch as it is made out from the seat
distribution matrix prepared by Respondent No. 5 that Respondent
No. 3 Hospital had only one seat which fell under OBC category, and
that seat was part of the All-India Quota. It is also evident from the
same that seats allotted to All-India Quota would be governed as per
the Central Reservation Policy.
64. As far as the Central Reservation Policy is concerned, this
Court finds the Central Educational Institutions (Reservation in
Admission) Act, 2006, particularly Section 4 to be relevant for the
adjudication of the present dispute. It is reproduced thus:
“ 4. Act not to apply in certain cases . — The provisions of section 3
of this Act shall not apply to —
*
(b) the institutions of excellence, research institutions, institutions
of national and strategic importance specified in the Schedule to
this Act:
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Provided that the Central Government may, as and when
considered necessary, by notification in the Official Gazette,
amend the Schedule;
(c) a Minority Educational Institution as defined in this Act;
(d) a course or programme at high levels of specialisation,
including at the post-doctoral level, within any branch of study or
faculty, which the Central Government may, in consultation with
the appropriate authority, specify.”
(emphasis supplied)
65. The Act provides for reservation in admission for students
belonging to the Scheduled Castes, the Scheduled Tribes and OBCs.
Section 4(d) specifically entails that the said Act is not to apply in
certain cases, including courses of high levels of specialization at the
post-doctoral level within a given branch or faculty. This Court note
that it is nobody’s case that the seat of DNB PDCET (Radio-
Diagnosis) course could not had been reserved in the first place, this
Court finds the said provision beneficial in determining whether such
seat can be de-reserved at all. However, it has been weighing in the
mind of this Court that, although the objective of preventing wastage
of seats, as proposed by the parties before this Court, is appealing in
light of the judgments of the Supreme Court and most importantly, in
public interest, at the same time, this Court is also required to be clear
in its mind and conscience alike that no injustice is caused to any
reserved category candidate.
66. Accordingly, in the present factual matrix, since this seat
belonged to All-India Quota, the Central Government would be the
competent authority to decide whether it should be de-reserved or not.
Thus, it was incumbent on the Central Government to process and
take steps for de-reservation of the said seat.
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67. The reasoning of the learned Single Judge is also correct that
Clause 4.6 of the Handbook was not applicable since it did not pertain
to release of the OBC seat to UR quota and that the decision of the
MoM to transfer vacant PD DNB seats to NEET PG did not apply
since the counselling process was ongoing. The learned Single Judge
also noted that the Appellant was itself unclear about the status of the
impugned seat.
68. In light of the foregoing, this Court ought to balance competing
interests. While it is in public interest to not let medical seats go
vacant, Respondent No. 1 has failed to furnish the basis of her right to
seek de-reservation. A remedy can only lie if there exists a right.
However, this Court shall also be cognisant of principles of equity and
fairness while examining the impugned judgment.
69. I agree with the view taken by the learned Single Judge that
reliance of the Appellant on Clause 4.6 of the Handbook and MoM
does not come to their rescue. The Handbook, including Clause 4.6,
only prohibits conversion from one reserved category to another.
Therefore, the Handbook is silent as to the Appellant’s authority to de-
reserve the OBC seat. Further, the spirit of the decision taken in the
MoM was indisputably to prevent wastage of seats. Hence, a
harmonious interpretation is to be adopted.
70. If the seats are to be transferred to the NEET PG pool before
de-reservation, it would deprive PD DNB candidates of the
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opportunity to further partake in the admission process for their
respective courses, despite having participated in the same counselling
process and being otherwise eligible. This approach would also defeat
the purpose of maintaining a distinct counselling mechanism for PD
seats. It is therefore more equitable that such transfer occurs only after
counselling rounds are exhausted in their entirety, and any unfilled
reserved seats be first de-reserved and offered to all eligible PD
candidates as per merit. This approach shall ensure that the PD seats
are filled by the most relevant pool of candidates, i.e., PD candidates.
Only if seats continue to remain vacant thereafter should they be
added to the NEET PG pool, thereby preserving the larger public
interest in preventing wastage of medical seats.
71. Further, before the learned Single Judge, vide letter dated
04.06.2025, the Additional Chief Secretary (Health) of Respondent
No. 5 (State of Haryana) clarified that the impugned seat fell under
All-India Quota. Respondent No. 4 (UOI) also requested the
Appellant to take a decision pertaining to the impugned seat by letter
dated 10.06.2025. The learned Single Judge proceeded on this
aforesaid stance and directed the Appellant to de-reserve the OBC
seat. However, the stance taken by UOI before this Court is that State
of Haryana is the competent authority to decide the question of de-
reservation since it decides the seat distribution matrix and forwards
the same to the Appellant.
72. I do not wish to delve further into this dispute of the concerned
competent authority, suffice to say that since the seat belonged to the
All-India Quota, it was always for the Central Government to take a
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call in the said issue and take appropriate steps urgently to ensure that
purported super speciality medical seats do not become casualties in
the fight between two government authorities.
73. Therefore, in light of the limited correctional jurisdiction of this
Court, the direction of the learned Single Judge for de-reservation of
the OBC seat to UR category and offer it to UR candidates per the
merits appears to be a plausible view and warrants our interference
only to the extent that it is not the Appellant but Respondent No. 4
(UOI) that the said direction must be issued to.
74. The learned Single Judge has not missed the wood for the tree
in deciding the issue raised in the writ petition, having undertaken a
detailed analysis of the facts and circumstances of the present case.
75. At the cost of repetition, to conclude the issue, it is the Central
Government and not the Appellant who is the competent authority to
take a call on the de-reservation of the PD DNB seat from OBC to
UR, since the impugned seat belonged to the All-India Quota.
76. For all the aforesaid reasons, the Appeal is partly allowed in the
aforesaid terms. Pending applications, if any, stand disposed of.
77. There shall be no order(s) as to cost.
OM PRAKASH SHUKLA, J.
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C. HARI SHANKAR, J.
1. Having had the advantage of reading the draft opinion of my
learned Brother Om Prakash Shukla, J., I regret my inability to agree
with the view taken by him.
2. The principal ground on which I am unable to subscribe to his
opinion is in his view that the Court is empowered to direct the Radio
diagnosis seat in the Government Medical Hospital, Panchkula, to be
dereserved and thrown open to unreserved general category candidates
including the respondent. Though Shukla, J., has, like the learned
Single Judge in the judgement under appeal, adopted this view in
order to ensure that the seat should not go vacant, especially as it is for
admission to a medical course, I am of the opinion that a Court
cannot, in the light of the law laid down in that regard by the Supreme
Court, dereserve a reserved category seat. The highest, the Court can
recommend or suggest to the competent executive authority is to
consider whether the seat can be dereserved. Directing dereservation
would, in my view, transgress the legitimate boundaries of our
jurisdiction.
3. Though the relevant facts stand admirably set out in the
judgement of Shukla, J., a brief recapitulation would not be out of
place.
28
4. The National Board for Examination in Medical Sciences , the
Appellant issued a Notification inviting applications for the DNB
28
"NBEMS" hereinafter
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29
PDCET 2025 on 28 January 2025. The Respondent participated. She
nd
scored the 142 rank of candidates who desired to pursue
radiodiagnosis, in the Unreserved quota, to which she belongs.
5. As per the Indicative Seat Matrix released by the NBEMS on 7
May 2005, the only Radiodiagnosis seat in the Government Hospital,
30
Panchkula , to which the respondent aspires, was reserved for a
31
candidate belonging to the Other Backward Classes . Admittedly,
therefore, the respondent is not eligible for the said seat. Despite this,
in full awareness of the fact that the lone Radiodiagnosis seat in the
GHP was reserved for an OBC candidate, the Respondent chose, as
the hospital of her first choice prior to the first round of counselling,
the GHP.
6. The learned Single Judge has, in the impugned judgement,
observed that the Respondent did so as he was under the impression
that, if the seat remained unfilled, it would be dereserved. No basis,
for the entertainment of any such belief by the Respondent is,
however, forthcoming.
7. Indeed, as was submitted by Mr. Kirtiman Singh, learned Senior
Counsel appearing for the NBEMS, there may be any number of
candidates who may have desired to be admitted to the Radiodiagnosis
seat in the GHP, but did not opt for such admission as they were
aware that the seat was reserved for an OBC candidate. Directing
dereservation of the seat would, among other things, to my mind,
29
Diplomate of National Board Post Diploma Centralized Entrance Test
30
"GHP" hereinafter
31
"OBC" hereinafter
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result in injustice to all such candidates.
8. Be that as it may, the revised allotment details released by the
NBEMS for counselling to the DNB PD course, on 17 May 2025,
revealed that the OBC Radiodiagnosis seat in the GHP was going
vacant. The petitioner, being an Unreserved category candidate, was
allotted a Radiodiagnosis seat in the Ivy Health and Life Sciences
Hospital, Punjab, which she declined on 18 May 2025. On 19 May
2025, the Respondent wrote to the NBEMS, praying that she be
allotted the vacant OBC category Radiodiagnosis seat in the GHP, in
case no candidate superior to her in merit was found suitable for
admission thereto. On her request not meeting with a favourable
response, the respondent petitioned this Court, resulting in the
impugned judgement dated 16 June 2025, rendered by the learned
Single Judge.
9. Before the learned Single Judge, the Respondent placed reliance
on a Note, purportedly issued by the Ministry of Health and Family
32
Welfare , which stated that if an OBC seat was not filled for want of
a candidate, it could be treated as Unreserved. Notably, Shukla, J., in
para 28 of his opinion, with which I am entirely in agreement, holds
that the said Note cannot come to the rescue of the Respondent.
10. Shukla J also goes on to concur with the learned Single Judge in
his view that the decision to convert the OBC category Radiodiagnosis
seat in the GHP to a post-MBBS seat, to be filled in by candidates
aspiring to the post-MBBS Radiodiagnosis course, would not stand in
32
"MOHFW" hereinafter
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the way of directing dereservation of the seat at this stage, as the
decision applied only at a post-counselling stage. Shukla, J.,
specifically observes that the seat could have been converted into a
post-MBBS seat after the exercise of counselling for the DNB PD
courses was over. Ergo, holds Shukla J, there was no embargo on
directing dereservation of the seat at this stage, when the exercise of
DNB PD counselling was still ongoing.
11. I have, with greatest respect, two reservations with this point of
st
view. In the 1 place, which is my minor reservation, adopting such a
course of action would result in denying the Radiodiagnosis seat to the
post-MBBS candidates, in the event that it remains unfilled after DNB
PD counselling, which cannot be done by the Court. Nor, to my mind,
th
can the Court prevent implementation of the decision taken in the 15
Accreditation Committee Meeting of the NBEMS to transfer the seat
to the post-MBBS pool, if it remained unfilled after completion of
DNB PD counselling. Significantly, there is no specific challenge to
th
the validity of the said decision, taken by the NBEMS in its 15
Accreditation Committee Meeting.
12. Further, if Court were to step in and direct dereservation of the
seat which is reserved for an OBC candidate, it could result in
complete disarray. There would never be any certainty regarding
whether a concerned seat would be reserved or dereserved, and Court
could, even in the absence of any provision permitting it, dereserve a
reserved seat merely because no reserved category candidate is
available to fill it. Candidates could, at their whim and fancy – as in
the present case – apply for a reserved category seat with full
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knowledge of the fact that they are not eligible therefor. Others, who
may have been more circumspect and acted with greater propriety,
may not have so applied.
13. The present case is a stellar example against the advisability of
the Court stepping in and dereserving the vacancy which was
otherwise reserved for an OBC category candidate. The respondent,
despite being fully aware that she was not eligible for the post, went
ahead and applied for it. There may have been countless others who
may not, rightfully , have applied for the seat, so that the direction, of
the learned Single Judge, to allot it to the most meritorious unreserved
category candidate, really speaking, is no panacea. The view adopted
by Shukla J, which endorses that which was adopted by the learned
Single Judge, provides a premium to the respondent who applied for a
a seat for which she was not eligible, knowing fully well that she was
not , and rejected the seat for which she was eligible and which was, in
fact, allotted to her. As a Court exercising jurisdiction under Article
226, I am of the opinion that no such order can be passed.
14. More elemental, however, is my reservation to the course of
action suggested by the learned Single Judge and approved by Shukla
J in his opinion, on the ground that a Court cannot direct a reserved
category seat to be dereserved, in the absence of any authority in that
regard, whether statutory or by way of binding executive instructions.
I do not find, either in the judgement of the learned Single Judge, or in
the accompanying opinion of my learned Brother Shukla J, reference
to any such statutory provision or executive instruction, which could
empower the Court to direct dereservation of the reserved category
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seat.
15. Reservation is a measure of social justice, which has withstood
constitutional scrutiny by the Supreme Court. It owes its origin to
Article 15 of the Constitution of India. Dereservation of a reserved
category seat compromises this consideration. If there is any
applicable statutory provision, or executive instruction, which
envisages such dereservation, then, of course, a Court can mandate
compliance therewith. In the absence of statutory provision or
executive instruction, the law, as I see it, is settled on the point that a
Court cannot extend the reach of its writ jurisdiction to direct
dereservation of a reserved category seat.
16. One may, in this context, refer to the decisions in S.S. Sharma
33 34
v. Union of India , State of Punjab v. G.S. Gill and Post-Graduate
35
Institute of Medical Education and Research v. K.L. Narasimhan .
The following passage from K.L. Narasimhan , which considers the3
earlier decisions in S.S. Sharma and G.S. Gill , speaks for itself:
“16. The question, therefore, is whether the Court can give
direction to throw open the reserved vacancies to the general
candidates by a writ of mandamus or direction, as the case may be.
The contention of Shri P.P. Rao is that since the Institute had
already apprised the Ministry of Health and Family Welfare of the
need for dereservation of the posts relating to scientific research
and no action has since been taken, the Court is empowered to
issue directions. In support thereof he placed reliance on the
judgment of this Court in Comptroller and Auditor General of
36
India v. K.S. Jagannathan . We find it difficult to give
33
(1981) 1 SCC 397
34
(1997) 6 SCC 129
35
(1997) 6 SCC 283
36
(1986) 2 SCC 679
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acceptance to the contention. The same question had arisen in S.S.
Sharma v. Union of India wherein a Bench of three Judges of this
Court had considered the question whether the Court could give
direction to dereserve the post. This Court pointed out that so long
as the recruitment by a limited departmental competitive
examination for the Dalits and Tribes could be adopted and
followed, i.e., one of the methods to make recruitment, a
mandamus cannot be issued by the Court to direct the Government
to dereserve the post. CAG is a reverse case. Therein, rule of
reservation was applicable to all the Departments since the CAG
had not applied the relaxed standard in conducting the examination
and making recruitment on the basis thereof; the Division Bench of
the High Court had directed to relax the standard and make
recruitment of the Dalits and Tribes by promotion. This Court had
upheld the judgment and held that when the authorities have a
power coupled with discretion, they have also a duty to implement
the policy of the Government. At p. 39, this Court had pointed out
that in order to prevent injustice resulting in injustice to the parties
concerned, the Court may itself pass an order or give directions
which the Government or the competent authority should have
passed or given had it properly and lawfully exercised its
discretion. Far from helping the appellants, the ratio goes in favour
of the reserved candidates. This question was considered in G.S.
Gill . Therein, the High Court has given direction to dereserve the
post and to throw open the same to the general candidates. While
considering the ratio in CAG and other decisions, this Court had
pointed out that the Court cannot give mandamus to disobey the
Constitution and principle of reservation enshrined in Articles
15(4) and 16; nor is the Court competent to direct the authorities to
disobey the constitutional mandate. It would, therefore, be
manifestly illegal to seek a mandamus or direction; nor would the
Court be justified to issue such mandamus or direction to the
appropriate Government to dereserve the vacancy. It is common
knowledge that selections are not objectively being made to select
the candidates belonging to the Dalits and Tribes to fill up the
vacancies reserved for them though qualified candidates are
available to be promoted/appointed, with a view to see that
reserved vacancies are not filled up and the same are passed off as
eligible candidates being not available so as to ensure that carry-
forward vacancies either exceed 50% of the accumulated total
vacancies or that selection goes beyond three years so as to make
the Government dereserve the vacancies. It would, therefore, be
clear that the authorities should implement the
executive/legislative/constitutional policy or principle in their true
spirit, honestly and sincerely to effectuate the policy; no mandamus
or direction should be issued to dereserve the carry-forward
vacancies reserved for appointment of the Dalits and Tribes nor
should direction be given to fill up the reserved posts with general
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candidates. Thus, it is settled legal position that application of
roster to single post cadre and appointment by promotion to carry-
forward post is valid and constitutional. With a view to give
adequate representation in public service to reserved category
candidates, the opportunity given to them is not violative of
Articles 14 and 16(1) of the Constitution; nor is it
unconstitutional.”
(Emphasis supplied)
17. The Court cannot, in my view, don the mantle of the executive.
The decision to dereserve reserved category seat is unquestionably
within the exclusive domain of the executive. If there were any
statutory provision or other instrument having binding force of law,
mandating de-reservation, the Court can, unquestionably, bind the
executive authorities to comply with the said mandate. Our attention
has, however, not been invited to any such instrument having the force
of law, which mandates de-reservation of the seat reserved for OBC
candidates, in the event that it remained unfilled.
18. Though Shukla J has, in his judgement, sought to draw a
distinction between dereservation of a reserved category seat in the
case of medical admissions and in the case of recruitment to a service,
the distinction, though facially apparent, does not, in my view, impact
the question of whether a Court can direct derereservation of a
reserved category seat , in the absence of any legally binding provision
to that effect. That would amount to transgressing into the realm of
the executive; a trespass which the Supreme Court has, times without
number, criticized.
19. Besides, it is not as though, in the facts available in the present
th
case, the seat would go abegging. The NBEMS had, in its 15 Act
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Radiation Committee Meeting, taken a decision that, if the seat
remained unfilled after DNB PD counselling was over, it could be
added to the pool of Postgraduate seats available for being filled in, on
the basis of the NEET. The validity of this decision is not under
challenge; neither has it been struck down either by the learned Single
Judge or in the opinion of Shukla, J. By following the said policy, the
OBC reserved category seat would continue to remain reserved for an
OBC candidate, albeit a candidate aspiring to a postgraduate seat
following the NEET. If we were to de-reserve this seat, it would
result in taking away one seat which would otherwise be available to
an OBC candidate. This is yet another reason why, to my mind, it
would not be proper for this Court to direct that the reserved
Radiodiagnosis seat in the GHP be de-reserved and thrown open to
Unreserved category candidates.
20. For all these reasons, I regret my inability to agree with Shukla,
J. in his decision to concur with the judgement of the learned Single
Judge and direct de-reservation of the Radiodiagnosis seat in the GHP,
which was reserved for an OBC category candidate.
21. To my mind, the Respondent would not be entitled to the said
seat and, therefore, the writ petition would be liable to be dismissed
and the appeal of the NBEMS, accordingly, allowed.
C. HARI SHANKAR, J.
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Point of difference
As we have not been able to arrive at a consensus regarding the course
of action to be followed in the present case, the following point of
difference is referred to the Hon’ble Chief Justice, to be placed before
the learned Third Judge or before a Full Bench, as the Hon’ble Chief
Justice would deem appropriate:
“Whether the learned Single Judge was correct in his
decision to direct de-reservation of the Radiodiagnosis
seat in the Government Hospital Panchkula, which was
reserved for an OBC category candidate, and to throw it
open to Unreserved category candidates, in the facts of
the present case, keeping in mind the legal position?
22. The Registry is directed to place the papers of this case before
Hon’ble the Chief Justice for appropriate orders.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
MAY 18, 2026/pa/ ss
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