PETITIONER: NIDAMARTI MAHESHKKUMAR Vs. RESPONDENT: STATF OF MAHARASHTRA & ORS. DATE OF JUDGMENT06/04/1986 BENCH: [ENTITY], P.N. (CJ) BENCH: [ENTITY], P.N. (CJ) [ENTITY], D.P. CITATION: 1986 AIR 1362 1986 SCR (2) 230 1986 SCC (2) 534 JT 1986 501 1986 SCALE (1)967 CITATOR INFO : R 1989 SC 177 (8) R 1989 SC 903 (28) E&R 1989 SC1194 (7,8) [CASE NUMBER] ACT: [ACT], [SECTION] and [SECTION] Admission to Medical Colleges - Reservation of Seats for students from backward region of State - Validity of. Professional Colleges - Admission to - [SECTION] of Rules for admission to M.B.B.S. Course - Student from school/college within jurisdiction of one university Ineligible for admission to medical college or colleges situated in jurisdiction of another university - Validity of Rule - Whether violative of [SECTION] of the [ACT]. HEADNOTE: The qualification required for admission to the MBBS course in the State of Maharashtra is the passing of 12th standard examination held by the Mahsrashtra State Board of Secondary and Higher Secondary Education. It comprises of three Divisional Boards - one for Vidharbha region, another for Marathwada region and the third for the rest of Maharashtra - and though for the purpose of convenience each of these three Divisional Boards conducts the 12th standard examination for the area within its jurisdiction, the examination which is held is one and the same throughout the State of Maharashtra, based on the same syllabus, with the same set of questions and the same standard of evaluation. The results of the 12th standard examination are published division wise and the merit list is also prepared on that basis but the question papers being same and the standard of evaluation also being uniform throughout the three regions, it is easy to assess the comparative merits of the candidates in the three regions by reference to the marks obtained by them at the 12th standard examination. The respondent-State, instead of selecting candidates from all over the State for the academic year 1985 on the basis of their performance in the 12th standard examination, made region wise classification for admission to medical 231 colleges by framing new Rules for admission to the M.B.B.S. A course. [SECTION] of the Rules provided that a student from a school or college situated within the jurisdiction of a particular university could seek admission only in the medical college or colleges situate within the jurisdiction of that University and he could not be eligible for admission to medical college or colleges situate in the jurisdiction of another university. The appellant challenged the validity of [SECTION] of the Rules before the High Court on the ground that it offends [SECTION] of the [ACT]. The High Court dismissed the writ petition on the ground that since the implementation of the order passed in Dr. [ENTITY] & Ors. v. Union of India & Ors. etc., [1984] 3 S.C.C. 654 that 30% of the open seats should be available for admission to students on all India basis and that only 70% of the seats could be reserved on the basis of residence or institutional preference, had been deferred by the Supreme Court, the State Government "had no other alternative but to fill in the seats as if there were no directions from the Supreme Court to fill in the seats on all-India basis" and [SECTION] of the Rules for admission to the M.B.B.S. course framed by the State Government for the academic year 1985 was therefore valid. Allowing the appeal, ^ HELD: 1. The regionwise scheme adopted by the State Government in [SECTION] clearly results in denial of equal opportunity violative of [SECTION] of the [ACT]. [245 D] 2.(i) The object of any valid scheme of admissions must be to "select the best candidates for being admitted to medical colleges" and that if any departure is to be made "from the principle of selection on the basis of merit", it must be justified on the touch-stone of [SECTION]. [238D-E] [ENTITY] v. State of Madras, [1968] 2 S.C.R. 786, [PRECEDENT] and Dr. [ENTITY] & Ors. v. Union of India Ors. etc., [1984] 3 S.C.C. 654, relied upon. [ENTITY] v. State of Madhya Bharat, [1955] 1 S.C.R. 232 1[SECTION]5 and [ENTITY] v. Union of India, [1980] 2 S.C.R. 831, referred to. 2.(ii) There are two considerations which may legitimately weigh with the Court in justifying departure from the principle of selection based on merit. One is what may be called State interest and the other is what may be described as a region's claim of backwardness. The claim of State interest in providing adequate medical services to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as Doctors, is a legitimate ground for departing from the strict principle of selection based on merit. [240 D-G] 2.(iii) Where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services, it would be [ACT]ally permissible, without violating the mandate of the equality clause, to provide a high percentage of reservation or preference for students coming from that region, because without reservation or preference students from such backward region will hardly be able to compete with those from advanced regions since they would have no adequate opportunity for development so as to be in a position to compete with others. By reason of their socially or economically disadvantaged position they would not have been able to secure education in good schools and they would consequently be at a disadvantage compared to students belonging to the affluent or well-to-do families who have had best of school education. There can, therefore, legitimately be reservation or preference in their favour so far as admissions are concerned in case of a medical college which is set up or intended to cater to the needs of a region which is backward or whose alumni are largely drawn from such backward region. It may however, be noted that the reservation or preference in such a case may even be of a high percentage of seats but it cannot be total. [242 F-H; 243 A-C] 2.(iv) It would not be un[ACT]al for the State Government to provide for reservation or preference in respect of a certain percentage of seats in the medical college or 233 colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the [ACT]al mandate of equality. There are two reasons why such reservation or preference would be [ACT]ally permissible. In the first place it would cause a considerable amount of hardship and inconvenience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reservation or preference regionwise. It must be remembered that there would be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursuing the medical course even though on paper they would have got admission in the medical college. The opportunity for medical education provided to them would be illusory and not real because they would not be able to avail of it. Moreover some difficulty would also arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical education in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hostels. Therefore, the reservation or preference in respect of a certain percentage of seats may legitimately be made in favour of those who have studied in schools or colleges within the region of a particular university, in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. [247 F-H; 248 A-E] 2(v) Not more than 70 per cent of the total number of open seats in the medical college or colleges situate within the area of jurisdiction of a particular university, after taking into account other kinds of reservations validly made, shall be reserved for students who have studied in schools or 234 colleges situate within that region and at least 30 per cent of the open seats shall be available for admission to students who have studied in schools or colleges in other regions within the States [248 G-H; 249 A-B] Dr. [ENTITY] & Ors. v. Union of India & Ors. etc. [1984] 3 S.C.C. 654, [ENTITY] v. State of Madras, [1968] 2 S.C.R. 786, and [PRECEDENT] [PRECEDENT], relied upon. [ENTITY] v. State of Madhya Bharat, [1955] 1 S.C.R. 1[SECTION]5 and [ENTITY] v. Union of India, [1980] 2 S.C.R. 831 referred to. [ENTITY] v. State of Mysore, [1971] Suppl. S.C.R. 608 distinguished. In the instant case, there is no material to show that the entire region within the jurisdiction of the university in Vidharbha is backward or that the entire region within the jurisdiction of Pune University is advanced. It is also not possible to categories the regions within the jurisdiction of the various universities as backward or advanced as if they were exclusive categories. As a result of the regionwise classification a student from one region who has secured lesser marks than another from a different region may be selected for admission to the medical college or colleges within his region. And moreover, a student from one region would have no opportunity for securing admission in the medical college or colleges in another region, though he may have done much better than the student in that other region. Therefore, it would plainly be violative of the mandate of the equality clause to compartmentalize the State into different regions and provide that a student from one region should not be allowed to migrate to another region for medical education and thus be denied equal opportunity with others in the State for medical education. [243 G-H; 244 C-E] The Court observed (a) that the number of seats required to be made available for admission to students on All-India basis must first be taken out and then to the remaining number of open seats after taking into account other kinds of reservations validly made, the percentages of 70 and 30 must be 235 applied for determining the extent to which regional reservation or preference can legitimately be made; (b) that the admissions made on the basis of [SECTION] shall not be disturbed, nor will any claim for admission be founded for the academic year 1985 on the basis of [SECTION]. If the State Government wants to make regionwise reservation or preference after setting apart the seats required to be made available for admission to students on All-India basis, the State Government may follow the guidelines laid down by the Supreme Court so AS to avoid clash with [SECTION] of the [ACT]. [249 C-D: E-G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : [CASE NUMBER].
From the Judgment and Order dated 1st August, 1985 of the Bombay High Court in [CASE NUMBER].
[ENTITY] for the Appellant.
[ENTITY], [ENTITY] and [ENTITY] for the Respondents.
The Judgment of the Court was delivered by [ENTITY], CJ. This appeal by special leave arises from a writ petition filed by the appellant in the High Court of Bombay challenging the validity of [SECTION] of the Rules framed by the State Government on [SECTION]st December 1984 for admission to the M.B.B.S. course. The validity of this Rule has been assailed on the ground that it offends [SECTION] of the [ACT]. The challenge has been negatived by the High Court but the appellant contends in this appeal that the decision of the High Court is erroneous and [SECTION] must be struck down as un[ACT]al and void.
The qualification required for admission to the MBBS course in the State of Maharashtra is the passing of 12th standard examination held by the Maharashtra State Board of Secondary and Higher Secondary Education. The teaching in the first ten standards is carried on in schools while in the 11th and 12th standards the teaching is done at some places in schools and at others in colleges. The schools and colleges where education is imparted in the 11th and 12th standards are H not in any way connected with the Universities within whose jurisdiction they are situate nor have the Universities anything to do with the 12th standard examination. There is one Board for the whole of Maharashtra called "Maharashtra State Board of Secondary and Higher secondary Education" and it comprises of three Divisional Boards - one for Vidharbha region, another for Marathwada region and the third for the rest of Maharashtra - and though for the purpose of conve- nience each of these three Divisional Boards conducts the 12th standard examination for the area within its jurisdiction, the examination which is held is one and the same throughout the State of Maharashtra, based on the same syllabus, with the same set of questions and the same standard of evaluation. The results of the 12th standard examination are published divisionwise and the merit list is also prepared on that basis but the quest{on papers being the same and the standard of evaluation also being uniform throughout the three regions, it is easy to assess the comparative merits of the candidates in the three regions by reference to the marks obtained by them at the 12th standard examination. The admissions to the medical colleges within the State of Maharashtra could, there fore, arguably be determined on the basis of merit and the best candidates could be selected from all over the State on the basis of their performance in the 12th standard examination. But for the academic year 1985, the State Government departed from this principle of selection based on merit across the hoard and made regionwise classification for admission to medical colleges by framing new Rules for admission to the M.B.B.S. Course on [SECTION]st December, 1984. [SECTION] of these Rules provided inter alia as under :
"Students who have passed H.S.C. (10+2) 12th standard examination of the Maharashtra State Board of Secondary and Higher Secondary Education from schools/Colleges situated within the jurisdiction of one university are not eligible for admission to medical college or colleges situated in the jurisdiction of another university. The seats at the Government Medical Colleges in Maharashtra State except those earmarked for nominees of the Government of India and nominees of Miraj Medical Centre and those mentioned in [SECTION] below are reserved for the students of the respective university area."
The admissions to medical colleges were thus made subject to regionwise classification inasmuch as a student from a school or college situated within the jurisdiction of a particular university could seek admission only in the medical college or colleges situate within the jurisdiction of that University and he could not be eligible for admission to medical college or colleges situate in the jurisdiction of another university. This regionwise classification made by the State Government for the purpose of admissions to medical colleges was assailed by the appellant by filing a writ petition in the High Court of Bombay on the ground that it was violative of [SECTION] of the [ACT]. The writ petition was heard by a Division Bench of the High Court and by a judgment dated 1st August, 1985 the High Court dismissed the writ petition. The principal ground on which the High Court rejected the writ petition was that the implementation of the Order passed by this Court in Dr. [ENTITY] & Ors. v. Union of India & ors. etc., [1984] 3 S.C.C. 654, that 30% of the open seats should be available for admission to students on all-India basis and that only 70% of the seats could be reserved on the basis of residence or institutional preference, had been deferred by this Court by its Order dated 8th July 1985 to the academic year 1986 and it was not to be given effect to in the academic year 1985. The High Court took the view that since the implementation of this Order had been deferred by this Court, the State Government "had no other alternative but to fill in the seats as if there were no directions from the Supreme Court to fill in the seats on all-India basis"
and [SECTION] of the Rules for admission to the M.B.B.S. Course framed by the State Government for the academic year 1985 was therefore valid. This view taken by the High Court is impugned in the present appeal preferred by the appellant with special leave obtained from this Court. F The question as to what principles for selection of students for admission to the medical colleges would be permissible under [SECTION] of the [ACT] came up for consideration before this Court in the leading case of Dr. [ENTITY] (supra). The judgment in this case reviewed all the previous decisions given by this Court starting from [ENTITY] v. State of Madhya Bharat, [1955] 1 S.C.R. 1[SECTION]5 and ending with [ENTITY] v. Union of India, [1980] 2 S.C.R. 831 and after analysing these decisions the Court laid-down the principles which should govern selection of students for admission to the medical colleges consistently with the requirement of [SECTION]. The Court pointed out that the primary consideration in selection of candidates for admission to the medical colleges must be merit and the object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students. This was in fact the consideration which weighed with the Court in [ENTITY] v. State of Madras, [1968] 2 S.C.R. 786 in striking down a Rule made by the State of Madras allocating seats in medical colleges on district wise basis and so also in [PRECEDENT] the same consideration prevailed with the court in striking-down a unitwise scheme of selection of candidates for appointment to medical colleges in the State of Tamil Nadu, which provided for constituting the medical colleges in the city of Madras as one unit and each of the other medical colleges in the mofussil as a separate unit and selection being made unitwise. The court in both these cases clearly and categorically proceeded on the bas{s of the principle that the object of any valid scheme of admissions must be to "select the best candidates for being admitted to medical colleges" and that if any departure is to be made "from the principle of selection on the basis of merit", it must be justified on the touch-stone of Article
14. This principle was affirmed by the court in Dr. [ENTITY]'s case (supra).
This Court then proceeded to consider in Dr. [ENTITY]'s case (supra) as to what are the circumstances in which departure may justifiably be made from the principle of selection based on merit. The Court enunciated in clear and emphatic terms the philosophy behind the concept of equality under the [ACT] and observed :
"Now the concept of equality under the [ACT] is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet [ENTITY] said graphically is very true, namely, "One law for the Lion and the Ox is oppression". Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exit in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence We cannot, therefore, have arid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country. Equality in law must produce real equality, de jure equality must ultimately find its raison d'etre in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas. The State must, to use again the words of [ENTITY], J. in [ENTITY] case 'weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit". The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals".
It was pointed out by the Court that there are two considerations which may legitimately weigh with the Court in justifying departure from the principle of selection based on merit. One is what may be called State interest and the other is what may be described as a region's claim of backwardness. The legitimacy of claim of State interest was recognised explicitly in [ENTITY]'s case (supra) and [ENTITY]'s case (supra). These two cases show that the claim of State interest in providing adequate medical services to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the state as Doctors, was regarded by the court as a legitimate ground for departing from the strict principle of selection based on merit. The decision of this Court in [ENTITY] v. State of Mysore, [1971] Suppl. S.C.R. 608 also upheld university wise distribution of seats, though it WAS not in conformity with the principle of selection based on merit and marked a departure from it, and the justification for taking this view was that institutional preference was not [ACT]ally impermissible "firstly, because it would be quite legitimate for students who are attached to a university to entertain 8 desire to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own university since that would promote institutional continuity which has its own value and secondly, because any student from any part of the country can pass the qualifying examination of that university, irrespective of the place of his birth of residence."
The second consideration which can legitimately weigh with the court in diluting the principle of selection based on merit is the claim of backwardness made on behalf of any particular region. We may, in this connection, usefully quote the following passage from the judgment of this Court in Dr. [ENTITY]'s case (supra):
"There have been cases where students residing a backward region have been given preferential treatement in admissions to medical colleges and such preferential treatment has been upheld on the ground that though apparently discriminatory against other it is intended to correct the imbalance or handicap from which the students from the backward region are suffering and thus bring about real equality in the larger sense. Such preferential treatment for those residing in the backward region is designed to produce equal opportunity on a broader basis by providing to neglect geographical or human areas an opportunity to rise which they would not have if not preferential treatment is given to them and they are treated on the same basis as others for admissions to medical colleges, because then they would never be able to compete with others more advantageously placed. If creatively and imaginatively applied, preferential treatment based on residence in a backward region can play a significant role in reducing uneven levels of development and such preferential treatment would presumably satisfy the test of [SECTION], because it would be calculated to redress the existing imbalance between different regions in the State. There may be a case where a region is educational- ly backward or woefully deficient in medical services and in such a case there would be serious educational and health service disparity for that backward region which must be redressed by an equality and service minded welfare state. The purpose of such a policy would be to remove the existing inequality and to promote welfare based equality for the residents of the backward region. If the State in such a case seeks to remove the absence of opportunity for medical education and to provide competent and adequate medical services in such backward region by starting a medical college in the heart of such backward region and reserves a high percentage of seats there to students from that region, it may not be possible to castigate such reservation or preferential treatment as discriminatory. What is directly intended to abolish existing disparity cannot be accused of discrimination."
[ENTITY], J. said to the same effect when he observed in [ENTITY] case (supra) at page 856 of the Report :
We have no doubt that where the human region from which the alumni of an institution are largely drawn is backward, either from the angle of oppor- tunities for technical education or availability of medical services for the people, the provision of a high ratio of reservation hardly militates against the equality mandate viewed in the perspective of social justice.
This was precisely the ground on which, in the [PRECEDENT] this Court allowed reservation in medical admissions for people of the hill and Uttarakhand areas of the State of U.P. On the ground that those areas were socially and educationally backward. Similarly, and for the same reason, the Andhra Pradesh High Court in [ENTITY] case (supra) held that preferential treatment of [ENTITY] students in medical admissions was justified. It is, therefore, clear that where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services, it would be [ACT]ally permissible, without violating the mandate of the equality clause, to provide a high percentage of reservation or preference for students coming from that region, because without reservation or preference students from such backward region will hardly be able to compete with those from advanced regions since they would have no adequate opportunity for development so as to be in a position to compete with others. By reason of their socially or economically disadvantaged position they would not have been able to secure education in good schools and they would consequently be at a disadvantage compared to students belonging to the affluent or well-to-do families who have had best of school education. There can, therefore, legitimately be reservation or preference in their favour so far as admissions are concerned in case of a medical college which is set up or intended to cater to the needs of a region which is backward or whose alumni are largely drawn from such backward region. It may, however, be noted that the reservation or preference in such a case may even be of a high percentage of seats but it cannot be total.
Here, in the present case, regionwise classification for admission to medical colleges was sought to be depended on the ground that Vidharbha and Marathwada regions are backward as compared to Pune and Bombay regions which are far more advanced and it was contended on behalf of the State Government that, in the circumstances, the provision in [SECTION] that a student from a school or college situate within the jurisdiction of a particular university would not be eligible for admission to medical college or colleges situate in the jurisdiction of another university but would be confined only to medical college or colleges within the jurisdiction of the same university, was intended to give protection to students in Vidharbha, Marathwada and other predominently rural areas the population of which is socially, economically and educationally backward for otherwise they would have no opportunity for medical education since they would not be able to compete with students from Pune and Bombay regions and consequently the classification made by this provision was [ACT]ally permissible. We are afraid this contention is not well- founded and must be rejected. In the first place there is no material to show that the entire region within the jurisdiction of the university in Vidharbha is backward or that the entire region within the jurisdiction of Pune University is advanced. There are quite possibly even in the region within the jurisdiction of Pune University predominently rural areas which are backward and equally there may be in the region within the jurisdiction of the university in Vidharbha, areas which are not backward. We do not think it is Possible to categorise the regions within the jurisdiction of the various universities as backward or advanced as if they were exclusive categories and in any event there is no material placed before us which would persuade us to reach that conclusion. But even if the regions within the jurisdiction of the universities in Vidharbha and Marathwada can be said to be backward and regions within the Jurisdiction of the universities in Bombay and Pune can be said to be advanced, we do not think that regionwise classification for admission to medical colleges can he sustained. There is no reason why a brilliant student from a region which is within the jurisdiction of a university in Vidharbha or Marathwada area should be denied the opportunity of medical education in Bombay or Pune. Why should he remain confined to the so-called backward region from which he comes? Should an equal opportunity for medical education not be made available to him as is available to students from regions within the jurisdiction of Bombay and Pune Universities? Why should mobility for educational advancement be impeded by geographical limitations within the State? Would this clearly not be a denial of equal opportunity violative of [SECTION] of the [ACT]? The answer must clearly be in the affirmative. It would plainly be violative of the mandate of the equality clause to compartmentalize the State into different regions and provide that a student from one region should not he allowed to migrate to another region for medical education and thus be denied equal opportunity with others in the state for medical education. This is precisely the reason why this Court struck-down unitwise scheme for admission to medical colleges in the state of Tamil Nadu in [ENTITY]'s case (supra). The unit-wise scheme which was held to be [ACT]ally invalid in that case was a scheme under which the medical colleges in the city of Madras were constituted as one unit and each of the other medical colleges in the mofussil was constituted as a unit and a separate Selection Committee was set up for each of these units. The intending applicants were asked to apply to any one of the committees but were advised to apply to the Committee nearest to their place of residence and if they applied to more than one committee, their applications were to be forwarded by the government to only one of the committees. The petitioners challenged the validity of this unit wise scheme and contended that the unit-wise scheme was violative of [SECTION] of the [ACT] inter alia because the applicants of some of the units were in a better position than those who applied in other units, since the ratio between the applicants and the number of seats in each unit varied and several applicants who secured lesser marks than the petitioner were selected merely because their applications came to be considered in other units. This contention was upheld by the Court holding that the scheme in question was invalid as it was discriminatory against some of the applicants. The ratio of this decision applies fully and completely to the present case. Here also as a result of the regionwise classification a student from one region who has secured lesser marks than another from a different region may be selected for admission to the medical college or colleges within his region while the student who has secured higher marks may not succeed in getting selected for admission to the medical college or colleges within his region. And moreover, a student from one region would have no opportunity for securing admission in the medical college or colleges in another region, though he may have done much better than the student in that other region. The regionwise scheme adopted by the State Government in [SECTION] clearly results in denial of equal opportunity violative of [SECTION] of the [ACT]. We may at this stage refer to the decision of this Court in [ENTITY]'s case (supra) on which considerable reliance was placed on behalf of the State Government. The reservation impugned in this case was university-wise reservation under which preference for admission to a medical college run by a university was given to students who had passed the [ACT] examination of that university and only 20 per cent of the seats were available to those passing the [ACT] examination of other universities.
The petitioner who had passed [ACT] examination held by the Bangalore University applied for admission to any one of the medical colleges affiliated to the Karnataka University. She did not come within the merit list on the basis of 20 per cent open seats which were filled up and since she had not passed the [ACT] examination held by the Karnataka University, her application for admission was rejected. She therefore filed writ petition under [SECTION] of the [ACT] contending inter alia that the university-wise distribution of seats was discriminatory and hence violative of [SECTION] of the [ACT]. This contention was rejected by the Court. [ENTITY], J. speaking on behalf of the Court gave the following reasons in support of its conclusion :
"In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of districtwise or unitwise selection as any student from any part of the State can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence. Further, the rules confer a discretion on the selection committee to admit outsiders upto 20 per cent of the total available seats in any one of these colleges, i.e., those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India. It is, therefore, impossible to say that the basis of selection adopted in these rules would defeat the object of the rules as was said in [ENTITY] case or make possible less meritorious students obtaining admission at the cost of the better candidates. The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them."
It will be obvious on a little scrutiny of these reasons that they cannot possibly have any application to the regionwise classification adopted in the present case. There are two basic differences between the regionwise classification In the present case and the university-wise reservation in [ENTITY]'s case (supra). Firstly, there was no common examination or uniform standard of evaluation in the different universities in [ENTITY]'s case (supra) so that it could not be said that a candidate obtaining lesser marks in the [ACT] examination held by one university was necessarily less meritorious than another student getting more marks in the [ACT] examination held by another university. But here in the present case there is only one common examination for the 12th Standard held in the entire state with the same syllabus and the same set of questions and uniform standard of evaluation with the result that it can be safely predicated that a student who gets less marks in the 12th Standard examination may ordinarily be regarded as less meritorious than another student getting higher marks. If there were different examinations held by the three Division Boards with different sets of questions and different standards of evaluation the ratio of the decision in [ENTITY]'s case would have inevitably and irresistibly applied. But the standard of comparison between students throughout the State being clear and well-defined on account of a common 12th Standard examination with same set of questions and uniform standard of evaluation the decision in [ENTITY]'s case can have no application. Moreover in [ENTITY]'s case (supra) the reservation in favour of students passing [ACT] examination of a particular university was not total but 20 per cent of the seats were made available to those passing the [ACT] examination of other universities. Here in the present case, however, the reservation in favour of students who have studied in schools or colleges situate in the region within the jurisdiction of a particular university is 100 per cent and no student who has studied in a school or college within the region of another university can possibly get admission in the medical college or colleges situate within the region of that the first mentioned university. We must therefore hold that the ratio of the decision in [ENTITY]'s case does not compel us to take a view different from the one we are inclined to take on first principle.
But we would like to make it clear that it would not be un[ACT]al for the State Government to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the [ACT]al mandate of equality. There are two reasons why such reservation or preference would be [ACT]ally permissible. In the first place it would cause a considerable amount of hardship and inconvenience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reservation or preference regionwise. It must be remembered that there would be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursuing the medical course even though on paper they would have got admission in the medical college. The opportunity for medical education provided to them would be illusory and not real because they would not be able to avail of it. Moreover some difficulty would also arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical education in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hostels. We are therefore of the view that reservation or preference in respect of a certain percentage of seats may legitimately be made in favour of those who have studied in schools or colleges within the region of a particular university, in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The only question is as to what should be the extent of such reservation or preference. But on this question we derive considerable light from the decision in Dr. [ENTITY] case (supra) where we held that reservation based on residence requirement or institutional preference should not exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made and that the remaining 30 per cent of the open seats at the least should be made available for admission to students on All-India basis irrespective of the state or the university from which they come. We would adopt the same principle in case of regionwise reservation or preference and hold that not more than 70 per cent of the total number of open seats in the medical college or colleges situate within the area of jurisdiction of a particular university, after taking into account other kinds of reservations validly made, shall be reserved for students who have studied in schools or colleges situate within that region and at least 30 per cent of the open seats shall be available for admission to students who have studied in schools or colleges in other regions within the State.
There is however one matter in respect of which it is necessary to make some clarification. The first is that when we talk of total number of open seats after taking into account other kinds of reservations validly made to which the percentages of 70 and 30 are to be applied as aforesaid, we mean the total number of open seats after deducting such number of open seats as are required to be made available for admission of students on All-India basis in accordance with the principles laid down in the decision in Dr. [ENTITY]'s case (supra) as modified from time to time by various subsequent judgments delivered by this Court. The number of seats required to be made available for admission to students on All-India basis must first be taken out and then to the remaining number of open seats after taking into account other kinds of reservations validly made, the percentages of 70 and 30 must be applied for determining the extent to which regional reservation or preference can legitimately be made.
We accordingly allow the appeal, set aside the judgment of the High Court and declare [SECTION] un[ACT]al and void. We may however make it clear that admissions made on the basis of [SECTION] shall not be disturbed, nor will as claim for admission be founded for the academic year 1985 on the basis of [SECTION]. If the State Government wants to make regionwise reservation or preference after setting apart the seats required to be made available for admission to students on All-India basis, we have laid down the guidelines which the State Government may follow so as to avoid clash with [SECTION] of the [ACT].
There will be no order as to costs of the appeal.
M.L.A. Appeal allowed.