A Division Bench of the High Court of Delhi, comprising Justice C. Hari Shankar and Justice Om Prakash Shukla, has delivered a split verdict on whether constitutional courts have the power to direct the de-reservation of unfilled reserved category medical seats to the unreserved category to prevent seat wastage.
While Justice Om Prakash Shukla ruled that vacant Other Backward Classes (OBC) seats could be converted to the Unreserved (UR) category in the absence of eligible candidates to serve the larger public interest, Justice C. Hari Shankar strongly disagreed, holding that directing de-reservation in the absence of explicit statutory or executive rules transgresses the legitimate boundaries of judicial review.
Due to the division of opinion, the bench has referred the point of difference to the Hon’ble Chief Justice for placement before a third Judge or a Full Bench.
Background of the Case
The dispute arose in the academic session of 2025 during admissions for the Diplomate of National Board Post Diploma Centralised Entrance Test (DNB PDCET 2025), conducted by the National Board of Examinations in Medical Sciences (NBEMS).
The respondent, Dr. Aditi Panwar, is a practicing radiologist belonging to the UR category. Having secured the 142nd rank in the UR category for Radio-Diagnosis, she indicated Government Hospital Panchkula (GHP) as her first preference and Ivy Health and Life Science Punjab as her second preference.
Under the Indicative Seat Matrix issued by NBEMS, GHP had only one seat available in Radio-Diagnosis, which was reserved for the OBC category. Dr. Panwar was fully aware of this reservation but selected it anyway. In the first round of counselling on May 17, 2025, she was allotted her second preference, Ivy Health, which she rejected the following day. On May 19, 2025, she made a representation to NBEMS seeking allotment of the vacant OBC seat at GHP, arguing that since no OBC candidate had qualified in the first round, the seat should be de-reserved to prevent its wastage.
When NBEMS failed to respond, she filed a writ petition, W.P.(C) 7066/2025, before a Single Judge. On June 16, 2025, the learned Single Judge allowed her petition, directing that the OBC seat at GHP be de-reserved to the UR category and offered to all candidates, including Dr. Panwar, in order of merit. Aggrieved by this direction, NBEMS filed an intra-court appeal (LPA 438/2025) before the Division Bench.
Arguments of the Parties
Appellant (NBEMS)
Represented by Senior Advocate Mr. Kirtiman Singh, the Appellant contended that:
- Dr. Panwar had no legal right to opt for a reserved seat as a UR candidate. Having rejected her allotted seat at Ivy Health, she was ineligible to participate further in accordance with Clauses 3.27 and 3.28 of the admission Handbook.
- The prospectus has no provisions allowing for the de-reservation or conversion of seats.
- Relying on Clause 4.6 of the Handbook, the Appellant argued that NBEMS does not own or control accredited hospitals and has no authority to de-reserve seats.
- Premature de-reservation would conflict with the decision of the 15th Accreditation Committee Meeting (held on August 9, 2024), which resolved that vacant Post Diploma (PD) DNB seats must be transferred to the NEET PG pool to avoid seat wastage.
- Conducting re-counselling at a late stage would cause a “cascading effect,” disrupting candidates who have already joined their courses. NBEMS cited several decisions, including Arvind Kumar Kankane v. State of U.P., Dr. Astha Goel v. Medical Counselling Committee, Neelu Arora (Ms) v. UOI, and Supreet Batra v. UOI, to argue that counselling cannot be an endless process.
Respondent (Dr. Aditi Panwar)
Represented by Advocate Mr. Amarjit Singh Bedi, the Respondent argued that:
- Leaving medical seats unfilled represents a “national wastage,” a principle recognized by the Supreme Court in cases like Era Lucknow Medical College & Hospital v. State of U.P. and Nihila P. P. v. Medical Counselling Committee (MCC).
- No OBC candidate had qualified for GHP’s Radio-Diagnosis seat.
- The Respondent placed reliance on a “Note” from the Ministry of Health and Family Welfare (MoHFW) suggesting that unfilled OBC seats under the All India Quota could be treated as UR.
- The conversion of seats to the NEET PG pool should be a last resort. Since PD DNB courses are meant for experienced clinicians, transferring the seat to the post-MBBS pool defeats the core objective of the PDCET pathway.
Court’s Analysis & Opinion
Opinion of Justice Om Prakash Shukla (Partly Allowing the Appeal)
Justice Shukla favored a balanced approach to prevent the wastage of highly specialized medical seats. He cited the Constitution Bench ruling in Ashoka Kumar Thakur v. Union of India, which noted:
“whenever the non-creamy layer OBCs fail to fill the 27% reservation, the remaining seats would revert to general category students.”
He also relied on the Supreme Court’s directives in P.V. Indiresan(2) vs. Union of India, which held that unfilled OBC seats should be converted to general category seats if eligible reserved candidates are unavailable. He noted that similar principles were followed in Delhi High Court decisions such as Sanchi Dilavri vs. University Of Delhi and Dr. Sandeep Dhama v. State, and the Himachal Pradesh High Court’s Division Bench ruling in Archana Thakur v. State of Himachal Pradesh.
Distinguishing this from direct recruitment where de-reservation is generally prohibited (as in Post-graduate Institute of Medical Education and Research v. K.L Narasimhan), Justice Shukla observed:
“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.”
He further noted:
“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 obstruction of public interest.”
However, because GHP’s seat fell under the All-India Quota, Justice Shukla held that the Central Government (Union of India), rather than NBEMS, was the competent authority to implement the de-reservation. He concluded that the Single Judge’s direction should be modified to direct the Union of India (Respondent No. 4) instead of NBEMS. On this basis, he partly allowed the appeal.
Opinion of Justice C. Hari Shankar (Dissenting, Allowing the Appeal)
Justice C. Hari Shankar strongly disagreed with Justice Shukla’s endorsement of de-reservation, holding that courts have no jurisdiction to order the de-reservation of a reserved category seat.
Justice Hari Shankar emphasized that reservation is a measure of social justice under Article 15 of the Constitution. In the absence of a specific statutory provision or binding executive instruction, the Court cannot direct de-reservation:
“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.”
He cited the Supreme Court judgments in S.S. Sharma v. Union of India, State of Punjab v. G.S. Gill, and the PGIMER case (K.L. Narasimhan), reproducing the Supreme Court’s warning that:
“…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 candidates.”
Justice Hari Shankar stated that the decision to de-reserve lies within the exclusive domain of the executive, and the court cannot “don the mantle of the executive.”
He further raised concerns regarding equity and fair play, pointing out that Dr. Panwar had knowingly applied for a seat for which she was ineligible, while other meritorious general category candidates might have refrained from applying out of propriety:
“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 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.”
Lastly, Justice Hari Shankar observed that GHP’s seat would not go to waste. Under the unchallenged decision of the 15th Accreditation Committee of NBEMS, the vacant seat would be added to the NEET PG pool, thereby preserving its reserved character for another eligible OBC candidate. He concluded that the writ petition should be dismissed and the appeal of NBEMS allowed.
The Decision & Referral
As the Division Bench could not reach a consensus, they formally recorded their point of difference and referred the matter to the Hon’ble Chief Justice for appropriate orders.
The referred Point of Difference is:
“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?”
Case Details
- Case Title: National Board of Examinations in Medical Sciences v. Dr. Aditi Panwar and Others
- Case No.: LPA 438/2025 and CM APPLs. 41843-45/2025 and 61454/2025
- Bench: Justice C. Hari Shankar and Justice Om Prakash Shukla
- Date of Judgment: May 18, 2026
