DIPAK MISRA, CJ

In this intra-court appeal, the assail is to the order dated 9th August, 2010 passed by the learned Single Judge in WP (C) No. 4272/2010 whereby he had declined to accede to the reliefs sought by the writ petitioner (hereinafter referred to as “the appellant”), principally the relief to give him admission in MS/MD course at All India Institute of Medical Sciences (AIIMS).

2. Sans unnecessary details, the facts which are necessary to be stated for disposal of the present appeal are that the appellant had appeared in the entrance examination held by the AIIMS for admission to the post graduate course commencing in the academic session in July, 2010. The appellant had secured 179 rank in the merit list and was called for counselling. As pleaded in the writ petition, the original counselling was scheduled for 11th June, 2010 but was postponed to 18th June, 2010 due to difference of opinion between the Respondent No.2 – Director General of Medical Education (DGME) and the Respondent No.3 – AIIMS. It was contended that the AIIMS had filled up the seats by students who were not eligible to be admitted. It was also averred that the AIIMS had expanded the zone of consideration of the students by changing the contents of the prospectus which was not permissible; that the students who had already taken admission in other colleges were called for counselling; that a maladroit attempt had been made to accommodate the AIIMS students by deviating the procedure which was impermissible; that some students had taken admission by misrepresentation inasmuch as while they had taken admission in other colleges, they had not clearly so stated.

3. The said assertions were opposed by the respondents contending, inter alia, that the prospectus uses the words “are pursuing” which is more than taking admission since the term “pursue” has a different meaning, namely, carry on further or continue a course of action; that there had been no ingenious effort to accommodate the students of AIIMS; that the seats have been filled as per the prescribed procedure; that the seats are not allowed to go waste; and that it is the principle of AIIMS to attract the best talent in the country.

4. The learned Single Judge dealt with all the aforesaid aspects and did not find any merit in any of the grounds and, accordingly, dismissed the writ petition.

5. This Court, in course of the appeal, on 6th December, 2010, had passed the following order:

“…..In course of hearing of this appeal, the issues that emerge for consideration fundamentally are whether the third respondent, namely, All India Institute of Medical Sciences (for short “AIIMS”) in the name of “institutional preference” can take recourse to reservation; to elaborate, AIIMS has an institutional preference in respect of Post Graduate seats at 50% of its MBBS seats but does not it necessarily mean that the 50% of seats are to be filled up from the students who have graduated from AIIMS ignoring the merit list in its entirety or some kind of rationale has to be conceded while determining the basic concept of “institutional preference”; whether there is any kind of “institutional preference” with regard to a particular stream or discipline; whether the third respondent was justified in changing the prospectus after the merit list was published by changing the ratio of the students to be called from 1:4 to 1:8; and whether the AIIMS should have gone for counseling for the vacant seats or carried forward such seats for the next year. Be it noted, the submission of Mr. Arvind K. Nigam, learned senior counsel for appellant would be because of adopting such a recourse, the case of the appellant has been jeopardized as he has not been able to feature in appropriate stream in the merit list and, in any case, the AIIMS could not have adopted such a mode.

Per contra, Mr. Sunil Fernandes, learned counsel for AIIMS would submit that despite the enhancement of the ratio, the case of the appellant is not aff