___ By Chennuri Sushmitha.
Sometimes it is a hard choice between the welfare of a few over the welfare of others. Similar is the situation in the ongoing case DR. PRERIT SHARMA v. DR. BILU B.S (Diary no. 22066) before the Honorable Supreme Court of India, which is an appeal from WA.No.1302 OF 2020, DR.BILU v. UNION OF INDIA. The chronology of events of this case can be traced back to the NEET – Super Specialty (DM/Mch. & DNB) conducted on 15th of September, 2020., the counselling for which was initially scheduled from 8th October,2020. The Medical Counselling Committee which was authorized to conduct the counselling process by the directions of the Ministry of Health and Family Welfare, Government of India vide letter no. V.26012/02/2016-MEP, dated 04-05-2017, had clearly declared in its Counselling Scheme that there shall be no reservation in Super Specialty (D.M/ M.ch./ DNB) courses in compliance with verdicts of the Honorable Supreme Court in Dr. Preeti Shrivastava & Anr v. State of Madhya Pradesh & Ors ( W.P. 290/1997 on 10th August 1999) and Dr. Sandeep and ors v. union of India ( W.P. 444/2015 on 27th October 2015). However, a writ appeal was filed in the High Court of Kerala on 7th October 2020, claiming reservations for In- Service candidates in the State quota of the State of Kerala by relying on the case, Tamil Nadu Medical Officers Association & Ors v. Union India and on the Kerala Medical Officers Postgraduate and Service Quota Act, 2008.
In-Service Quota is generally applicable for doctors who are working in Government Institutions and/or who worked for 3 years in Tribal / Backward areas of any State.
The above mentioned case, provided that the State has the legislative competence and authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III. It also specifically observed and clarified that the present decision shall operate prospectively and any admissions given earlier taking a contrary view shall not be affected by this judgment whereas in the Act,2008 such reservation in admission for Postgraduate/Super Specialty Courses was already provided.
After considering the necessary facts and circumstances, the Honorable High Court of Kerala provided 40% reservation for In-Service candidates in the state. Aggrieved by which the case in discussion DR. PRERIT SHARMA v. DR. BILU B.S. (Special Leave Petition No. 012891 of 2020, ) is filed in the Honorable Supreme Court India. Which is now pending to be heard along with Diary No. 24722 of 2020 (DR. ANKIT VISHWANI v. THE STATE OF TAMIL NADU), which in turn is an appeal from the order of the Honorable High Court of Tamil Nadu reserving 50% of seats for In-service candidates.
In-service reservation is a matter of speculation for a long time. Its supporters rely on Article 15(4) which states that the State is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes, while its opposer’s debate that it is in controversy with Article 14 which reads as “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The said Article is clearly in two parts – while it commands the State not to deny to any person ‘equality before law’, it also commands the State not to deny the ‘equal protection of the laws’. Equality before law prohibits discrimination. It is a negative concept. The concept of ‘equal protection of the laws’ requires the State to give special treatment to persons in different situations to establish equality amongst all. It is positive in character. Therefore, the necessary corollary to this would be that equals would be treated equally, whilst un-equals would have to be treated unequally. So, just because of their place of occupation, two equally qualified doctors cannot be regarded as unequal.
A new angle for consideration arose from the claim that In-service reservation is different from the communal reservation discussed in Dr Preeti Srivastava and Anr v. State of M.P. and Ors, where it was observed that “the object of Article 15(4) is to advance the equality principle by providing for protective discrimination in favor of the weaker sections so that they may become stronger and be able to compete equally with others more fortunate, one cannot also ignore the wider interests of society while devising such special provisions. At the same time, there may be other national interests, such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests.”
While the Honorable Apex Court considers all the perspectives and comes to a conclusion on this speculation on reservation, I cannot help but wonder the rights of the meritorious candidates who are confused, aggrieved and losing their valuable time as its already being more than a month since the actual date of counselling, all for the contradictions and loopholes in the judgements which are not clarified until an issue comes into light and the respective authorities who have not considered the same before making a decision. I conclude this article with a hope that timely and speedy justice shall be served amidst the pandemic to these COVID-19 warriors.
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