IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2508 OF 2001 WITH SPECIAL CIVIL APPLICATION NO. 2957 OF 2001 AND SPECIAL CIVIL APPLICATION NO. 2911 OF 2001 For Approval and Signature: Hon'ble MR.JUSTICE PRADIP KUMAR SARKAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : ---------------------------------------------------------- AMIT KSHATRIYA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2508 of 2001 MR PM THAKKAR WITH NV ANJARIA for Petitioner No. 1-31 MS. NANDINI JOSHI,Ld. ASST.GOVT PLEADER for Respondent No. 1,3,5 MR JR NANAVATI WITH AR THACKER for Respondent No. 2 MR MITUL K SHELAT for Respondent No. 4 MR. B.P.TANNA for Respondent No. 6-30 2. Special Civil Application No. 2957 of 2001 MR PM THAKKAR WITH NV ANJARIA for Petitioners MR JR NANAVATI WITH AR THACKER for Respondent No. 1 MS NANDINI JOSHI, AGP for Respondent No. 2 MR MITUL K SHELAT for Respondent No. 3 3. Special Civil Application No. 2911 of 2001 MR PM THAKKAR WITH BD KARIA for Petitioners MS NANDINI JOSHI, AGP for Respondent No.1,3 , 4 MR JR NANAVATI WITH AR THACKER For Respondent No.2 CORAM : MR.JUSTICE PRADIP KUMAR SARKAR Date of decision: 02/07/2001 COMMON CAV JUDGEMENT 1. Rule in Special Civil Application No. 2508 of 2001, 2911 of 2001 and 2957 of 2001. Learned counsel representing respondents in each of the petitions waives service of rule. 2. The petitioners who are Medical Graduates from M.P. Shah Medical College, Jamnagar, filed these three writ petitions challenging the selection made by the Saurashtra University, the Respondent in respect of admission to the Post Graduate Medical Courses. On three different grounds these three writ petitions have been filed by respective petitioners. Since the matters involve about selection list prepared by the Saurashtra University, the respondent, all these petitioners are heard together and are disposed of by this common judgment & order. 3. In Special Civil Application No. 2508 of 2001 the petitioners seek for a direction on respondent Saurashtra University not to treat the students of Rajkot Medical college at par with the petitioners who are from M.P. Shah Medical College, Jamnagar. They have also prayed for preference in the matter of admission to P.G. Medical course over the students of Rajkot Medical College. The respondent University and some students of Rajkot Medical College also filed their counter affidavit. The contention of the respondent University is that the Rajkot Medical College and M.P. Shah Medical College, Jamnagar are both affiliated to Saurashtra University and therefore in the manner of admission to P.G. Medical course no preferential treatment can be given to the petitioners who are from M.P. Shah Medical College, Jamnagar. It is contended by the petitioners that in year 1995 the Rajkot Medical College started functioning. It is also contended that meritorious students took their admission in the M.P. Shah Medical College, Jamnagar on the basis of merit and the left out candidates in the merit list were later on admitted at Rajkot Medical College. Since the petitioners are more meritorious they seek preference over the students of Rajkot Medical College in the manner of admission in P.G. Medical Course. The University and some students of Rajkot Medical College contended that both, M.P. Shah Medical college and Rajkot Medical College are affiliated with Saurashtra University and MBBS degree is conferred to the successful candidates by Saurashtra University alone, and therefore, there cannot be any question of giving preference to one institution over other institution especially when both the institutions are under same University. It is further contended that all the MBBS examinations (1st, 2nd and 3rd MBBS) have been conducted by Saurashtra University and the students have to answer same questions and examining body of answer sheets are also same and therefore, so far merit is concerned, the same has been correctly determined irrespective of the institution. Mr. Thakkar, learned Senior Counsel with Mr. N.V. Anjaria, appearing on behalf of the petitioners submitted that the Government has framed rules for admission to P.G. Medical Course and in that Rules provisions have been made for giving apreference to certain medical colleges. Learned counsel Mr. Thakkar has also referred the case of JAGDISH SARAN VS. UNION OF INDIA, reported in AIR 1980, Pg. 825. Learned counsel after drawing my attention to aforesaid case law, submitted that, the concept of equality codified in our constitutional system is not violated. The classification is a feature of the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone form a class between themselves and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. It has further submitted that, an institutional preference of the kind considered does not offend the constitutional guarantee of equality. " It is accordingly submitted by Mr. Thakkar that, Rajkot Medical College started MBBS course in year 1995 when admission in MBBS course in other colleges have been closed. Mr. Thakkar accordingly submitted that, all meritorious candidates were admitted in the established colleges during the academic session 1995-96. However the Rajkot Medical College started functioning and the seats were filled up from the remaining merit list, who cold not secure their admission in established colleges. Mr. Thakkar accordingly submitted that the petitioners were admitted to M.P. Shah Medical College, Jamnagar which was functioning for a long time and all meritorious candidates in merit list took their admission in the said college.It is accordingly submitted that the students of M.P. Shah Medical College passed MBBS in 1999-2000 are more meritorious than the students of Rajkot Medical College who has passed MBBS in 1999-2000. Learned counsel accordingly submitted that, since the petitioners who are M.P.Shah Medical College students are more meritorious and they should be given preference in the admission of P.G. Medical College course. It is also contended by Mr. Thakkar that, P.G. Medical course is available only in M.P. Shah Medical College at Jamnagar and there is no P.G. course in Rajkot Medical College. Mr. Thakkar accordingly submitted that, the students who have passed MBBS from M.P. Shah Medical College should be given preference as they will study P.G. Medical course in the same institution and in the known environment. Learned counsel also urges that the petitioners completed their studies from M.P. Shah Medical college where P.G. courses are available. Therefore, there is a legitimate expectation on the part of the students of M.P. Shah Medical College that they will get preference in the matter of admission to P.G. course than the other students who have passed MBBS from other institutions. 4. Mr. J.R. Nanavati, Learned Senior Counsel appearing on behalf of respondent Saurashtra University opposed to such a preferential treatment to the students of M.P. Shah Medical College. It is submitted by Mr. Nanavati that the Government had framed Rules giving preference to certain institutions and those rules are in respect of Residency of the P.G. students. Mr. Nanavati submitted that the admission to the post graduate studies is known as Registration under the respective Universities draws the criteria for admission for registration and the registration of a candidate can be with residency or without residency. The candidates who has registration with residency will get stipend from the Government and the State Government has framed rules for such candidates. Mr. Nanavati, learned counsel for the University submitted that, those rules have no bearing to the admission in P.G. course. Mr. Nanavati further submitted that the case law referred by learned counsel for the petitioner have been discussed by the Apex Court in the case of AHMEDABAD MUNICIPAL CORPORATION VS. NILAYBHAI R.THAKORE, reported in AIR 2000, S.C. 114. It is submitted by Mr. Nanavati that the Apex Court after discussing various decisions, held that, so far as constitutionality of various rules pertaining to admissions in under graduates courses in educational institutions is concerned, it is now well settled that, so far as under graduate courses are concerned the reservations based on domicile, university or institution are permissible provided the said reservations are not wholesale. Accordingly, Mr. Nanavati submitted that in the present case the question is not with regard to the admission in under graduate course. In these petitions the procedure of admission to post graduation in Medical Courses have been challenged. It is further submitted by Mr. Nanavati that, both M.P. Shah Medical College, Jamnagar and Rajkot Medical College are affiliated with respondent Saurashtra University and the final degree is awarded to the successful candidates of both the institutions by Saurashtra University alone. It is also submitted that the students of both the institutes follow the same syllabus and same examination procedure and examinations are conducted for both medical colleges by Saurashtra University. Mr. Nanavati accordingly submitted that, within the same University, preference cannot be given to students of one institution. It is also submitted by Mr. Nanavati that, in AIR 2000 S.C. 114 the Apex Court has held that, with regard to post graduate and super specialist the Court has prohibited any reservation whatsoever. Mr. Nanavati also referred the case of DR. PARAG GUPTA VS. UNIVERSITY OF DELHI, AIR 2000, S.C. 2319. Mr. Nanavati submitted that, the Apex Court has given guidelines regarding admission in P.G. courses. It is also submitted by Mr. Nanavati that, Apex Court has discouraged the preference in the matter of admission in P.G. & Super Specialist course in medical science. Mr. Nanavati accordingly submitted that, no preferential treatment can be given to the students of a particular institution in the matter of admission to P.G. course in Saurashtra University. There is sufficient force in the submission of Mr. Nanavati. It is an admitted fact that the students of both these two colleges passed their 1st, 2nd and 3rd year MBBS course from Saurasthra University and the examinations were conducted by the same University. When one University conducts one examination for one or more institutions and evaluates the performance of the students it cannot be said that while evaluating performance in examination the university makes any discretion while awarding marks to the students of any particular institution. When the standard of examination is same valuation of the marks are also same, I am of the view that no preference shall be given to a particular institution simply because P.G. courses are available in one institution and said course is not available to another institution. The students of both the colleges are aspiring for admission in P.G. course. When their merits have been judged by the same University, I am of the view that admission in P.G. course for both the students of these institutions should be strictly on common merit. I do not find any force in the submissions of learned counsel Mr. Thakkar and I am of the view that there is no merit in Special Civil Application No. 2508 of 2001 and accordingly it is dismissed. Interim relief if any stands vacated. Rule discharged. --------------- SPL.C.A NO: 2957 OF 2001. 5. The petitioners seek direction for revising the merit list published on 16-4-2001 (Annexure-A) by the respondent Saurashtra University for admission to P.G. Medical Course. It is alleged that, according to the decision of the University and as per provisions of Regulation 9 of the Indian Medical Council Regulations, the marks have not been properly allotted to the candidates and as such an irregularity has been committed by respondent University in preparing merit list. It is argued by Mr. Thakkar, learned senior counsel appearing on behalf of the petitioners that, while preparing select list for P.G. Medical Course, respondent Saurashtra University did not apply the weightage in percentage to be given to the candidates on the basis of their marks obtained in 1st, 2nd and 3rd MBBS. It is submitted by Mr. Thakkar that Saurashtra University has taken a decision that, for determining the merit of the candidates for admission to P.G. course, there should be 25 % weightage of marks secured at 1st MBBS , 25 % weightage secured at 2nd MBBS and 50 % weightage secured at 3rd. MBBS examination. Mr. Thakkar learned counsel appearing on behalf of the petitioners argued that, in all these three year examinations the total marks are not same and therefore the University has committed a mistake in taking in to consideration 25 % of marks obtained by a candidate in 1st MBBS and 25 % of marks obtained in 2nd MBBS and 50 % of marks from the total marks of 3rd MBBS. It is submitted that in 1st MBBS the total mark is 600, whereas in 2nd MBBS total mark is 480 and in 3rd & final MBBS the total mark is 1120. Mr. Thakkar accordingly submitted that, when total marks of three years are not same the determination of merit on the basis of 25 % marks from 1st year , 25 % marks from 2nd year and 50 % marks from 3rd year MBBS has resulted in injustice to the meritorious students. Mr. Thakkar submitted that in para-5, 6 and 7 of the petition an ideal example has been incorporated by which out of total marks in all the three MBBS examinations, how best 25 % marks in 1st MBBS, 25 % marks in 2nd MBBS and 50 % marks in 3rd MBBS can be worked out. Mr. Thakkar submitted that, the method adopted by Saurashtra University in calculating the weighted is erroneous and in fact only 18.08 % have been added in the marks of 1st MBBS marks, 14.45 % marks have been added in 2nd MBBS marks and 67.47 % marks have been given to final and 3rd year MBBS examination marks. Learned counsel accordingly submitted that the University should have taken the percentage only and not the total marks of each years examination and the percentage of mark should have been distributed in such a way that the 25 % : 25 % : 50 % are equally distributed in the total marks of the MBBS examinations. Mr. Thakkar, learned counsel for the petitioners submited that the decision of the Saurashtra University dated 11-9-1995 for allotment of 5 % marks both in 1st and 2nd year MBBS examinations and 50 % marks in 3rd & final MBBS is not in conflict with Regulation 9 of the P.G. Medical Council Regulations, 2000, framed by Medical Council of India dated 22-8-2000. But while implementing this percentage the University has adopted wrong procedure and thus misapplied the decision of the University. 6. Mr. Nanavati, learned senior counsel appearing on behalf of respondent University submitted that, there may be different methods of calculation in ascertaining merits, but Saurashtra University has taken a decision on 11-9-1995 that, while assessing the merit of a candidate for admission to P.G. Course 25 % marks will be taken from the result of 1st MBBS examination, 25 % marks will be taken from the result of 2nd MBBS examination and 50 % marks will be taken from 3rd & final MBBS examination. Mr. Nanavati further submitted that, from 1995 this calculation is being implemented for ascertaining cumulative performance of a candidate in all the three MBBS examinations. Mr. Nanavati accordingly submitted that the intention of the University is very clear that while assessing merit for admission to P.G. course 25 % of marks will be taken from the result of 1st MBBS and 25 % marks will be taken from 2nd MBBS and 50 % of marks will be taken from 3rd & final MBBS examination. After adding these three examination marks the total will be arrived at and on basis of total marks obtained by a candidate will be the cumulative performance of all the three examinations and merit list will be prepared. Mr. Nanavati accordingly submitted that, in the 1st MBBS examination total mark is 600, and whatever marks are obtained by a candidate, 25 % of that marks is taken and similarly 25 % of the total marks obtained by a candidate in 2nd MBBS is taken and 50 % of the marks in 3rd year MBBS of a student is taken and total of these marks are the cumulative performance of a candidate in MBBS examination. Thus the merit list is prepared. Mr. Nanavati further submitted that, instead of complicated calculations the University though it proper to adopt the aforesaid procedure and by that procedure no injustice is done to any candidate. Mr. Nanavati further submitted that, the method adopted by the respondent University is the easiest one and gives clear picture about the total academic merit of a candidate. It is further submitted by Mr. Nanavati that, there may be different method in calculating and since the University is following one procedure, which is in accordance with the Regulations of the Medical Council of India, it cannot be said that the Regulation has not been properly implemented by the University. 7. In Regulation-9 Medical Council of India prescribed four methods for determining the merit of a candidate for admission to P.G. course. It is an admitted fact that the decision of the Saurashtra University is in consonance with Regulation- 9 (2) (iii). The aforesaid provision contemplates ascertaining of merit of a candidate by the cumulative performance at 1st, 2nd and 3rd year MBBS examinations. The respondent University has adopted the procedure for determining the cumulative performance by taking 25 % of marks from 1st MBBS, 25 % of marks from 2nd MBBS and 50 % of marks from 3rd MBBS, and therefore; it is evident that the University will determine the merit by taking in to consideration the cumulative performance of each candidate and the method adopted by the University appear to be most simple and therefore, I do not find any ground to interfere with the decision of the respondent University while determining the merit on the basis of the cumulative performance of a candidate on the basis of 25 % marks in 1st MBBS, 25 % marks in 2nd MBBS and 50 % marks in 3rd MBBS. Accordingly I am of the view that, there may be different procedure for determining cumulative performance of a candidate in examination, but the one adopted by the Saurashtra University cannot be said not a proper procedure in determining cumulative performance of a candidate. The University has taken into consideration the performance of a candidate in 1st MBBS , 2nd MBBS and 3rd & final MBBS examinations, and therefore, I am of the view that, the method adopted by the Saurashtra University is consistent with the Regulation of the Medical Council of India and the procedure adopted by Saurashtra University is correct. Therefore, I do not find any merit in the arguments of learned counsel for the petitioners. Even if there are different procedures for calculating the cumulative performance of a candidate in different examinations, when the procedure adopted by the respondent University is found to be legal and correct, I do not think, any interference is called for in this respect. Accordingly I do not find any merit in the petition and this petition is dismissed. Rule discharged. SPL.C.A. No. 2911 OF 2001: 8. In this petition, the petitioners seek for a direction for quashing the merit list at Annexure-B, and also to direct respondent Saurashtra University to prepare fresh merit list for all eligible candidates for admission to P.G. Medical course for year 2001 on the basis of the marks obtained by them in 1st, 2nd and 3rd & final year MBBS examinations in the ratio of 1: 1 : 2, i.e. 25 % of the marks in 1st MBBS, 25% marks in 2nd MBBS and 50 % of the marks in 3rd & final MBBS. The respondent Saurashtra University framed Rules in November 1983 laying down procedure for calculation of marks for admission in P.G. Medical course. Said rule is at Annexure-B to Spl.C.A. No. 2508 of 2001. Various methods have been determined for ascertaining the merit of a candidate for admission in PG course. Subsequently on 11-9-1995 the rule has been modified to the extent that merit would be determined on the basis of 25 %, 25 % and 50 % marks obtained in 1st, 2nd and 3rd year MBBS examinations and this procedure shall be implemented for the students taking admission in 1st MBBS in August 1995 and onwards. For the students who were admitted prior to August 1995, 1983 unamended rules are continued for determining merit of a candidate for admission to PG Medical course. In the meantime the Medical Council of India framed the P.G. Medical Education Regulations 2000 on 22-8-2000 prescribing the procedure for admission to P.G. course. In Regulation-9 Medical Council has prescribed four different procedure for determining the merit of a candidate for admission in P.G. course. It appears that, Saurashtra University has adopted the 3rd method, that is Regulation 9 (2) (iii) of the Medical Council Regulations for determining the merits of the candidates who are admitted in 1st year MBBS after August 1995. For those who have been admitted in 1st year MBBS prior to August 1995, 1983 Rules continued to be applied in Saurashtra University for earlier admitted students. While preparing merit list for admission to P.G. course respondent Saurashtra University has considered the merits of the students who were admitted to 1st year MBBS prior to August 1995 by taking in to consideration their performance in final MBBS examination. However, there are some procedure for deduction of marks for who have failed their 1st or 2nd MBBS in first or second attempt. 9. The petitioners in this case challenged the merit list of earlier students because the cumulative performance of earlier students has not been determined by respondent University and only result of 3rd & final MBBS examination were taken into consideration by respondent University while determining merit of the candidates who were admitted to 1st year MBBS prior to August 1995. So far candidates who have been admitted to 1st year MBBS after August 1995, Saurashtra University is determining the cumulative performance of a candidate by giving weightage of 25 % of the marks of 1st MBBS, 25 % on the basis of 2nd MBBS and 50 % on the basis of marks in 3rd MBBS. It is contended by learned counsel for the petitioners that, in view of Regulation-9 of the Medical Council of India, the University should have adopted one procedure for determining merit of the candidates where such candidate is admitted prior to August 1995 or after August 1995. 10. I have requested Mr. B.P. Tanna, learned senior counsel to explain the legal position on this matter. Mr. Tanna, learned counsel submitted that, one procedure should be adopted by the University for determining merit of all the candidates who have passed MBBS examination. It is submitted by Mr. Tanna that the candidates who have taken admission prior to August 1995, they had to pass 1st and 2nd MBBS examinations to qualify for appearing in 3rd & final year MBBS examination. It is also submitted by Mr. Tanna that all the students of MBBS course who were admitted after August 1995 or before 1995, had to clear 1st, 2nd and 3rd MBBS examination. All these examinations are distinct and separate. It is accordingly submitted by Mr. Tanna that, when both the group of students have passed 1st, 2nd and 3rd MBBS examinations and these examinations are being separate and distinct, there is no reason to apply one set of rule for determining the merit of a candidate who has been admitted to 1st MBBS after August 1995 and another set of rule for a candidate