1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1863 OF 2009 Dr. Sahil Deepak Rasane, Age 25 years, at present residing at 40/3-B, Plot No. 16, Jaideep Bungalow, Tapodhan Society, Shahu College Road, Parvati, Pune, 411 009. ...Petitioner Versus 1. The State of Maharashtra, through its Department of Medical Education & Drugs, Mantralaya, Mumbai. 2. The Director of Medical Education & Research, St. George’s Hospital Compound, Mumbai 400 001. 3. Bharati Vidyapeeth Deemed Unversity Medcial College, Dhanakawadi, Pune 411 043. 4. The University Grant Commission, Bahadur Shah Zafar Marg, New Delhi 110 002. 5. Maharashtra University of Health Sciences, Nashik, through its Registrar, Health University Campus, 2 Nashik. 6. Medical Council of India, Aiwan-E-Gailib Marg, Kotla Road, New Delhi. ... Respondents WITH WRIT PETITION NO. 618 OF 2002 1. Amol Vinayak Joshi, Age 23 years, at present residing at C/o. Dr. V.N. Joshi, Joshi Hospital, Tilak Road, Shriwardhan, District Raigad. 2. Amol Vallabh Benke, Age 23 years, at present residing at “Satsang”, 966/1-B, Shanta Society, Gokhale Nagfar Road, Pune 16. 3. Sanjay Gajendra Ainapure, Age 23 years, at present residing at Shardul Apartments, Flat NO. 15, Wadgaon, Pune. ...Petitioners V/S 1. The State of Maharashtra, through its Department of Medical Education & Drugs, Mantralaya, Mumbai. 2. The Director of Medical Education 3 & Research, St. George’s Hospital Compound, Mumbai 400 001. ... Respondents WITH WRIT PETITION NO. 50 OF 2006 1. Vikrant Mohan Bhagvat, Age 23 years, at present residing at 404, Rajendra Vihar, 11, Gilder Lane, Mumbai 400 008. 2. Satyajeet Vilas Salunke, Age 23 years, at present residing at Mamta Hospital, Mayani Road, Taluka Khanapur, Dist. Sangli. 3. Sheetal Ashok Karande, Age 24 years, at present residing at 703, Daffodil Towers, Mulund (East), Mumbai 4. Arundhati Ashok Patil, Age 24 years, at present residing at Laxmi Nivas, Pashwanath Colony (West), Dhamni Road, Sangli. 5. Kedar Pratap Patil, Age 23 years, at present residing at Ashadevi Memorial Hospital, Behind Civil Hospital, Gurpir Chowk, 4 Sangli 416 416. 6. Shruti Sudhir Dube, Age 22 years, at present residing at 259, B-3, Bharamhanand Apartments, Narangi Baugh Raod, New Boat Club Road, Pune 411 001. 7. Devendu Laxmikant Shah, Age 24 years, at present residing at L-Bulding, 16- Block, Suyog Nagar Society, Senapati Bapat Raod, Behind Shivaji Housing Society, Pune 16. 8. Vishal Gurav, Age 25 years, at present residing at Sonali Kale Plot, At apost & Taluka K Kavathe Mahankal, Dist. Sangli. 9. Yash Arun Bahulikar, Age 24 years, at present residing at 11, 87/4, Shivaji Nagar, Pune 411 005. 10. Supriya Suresh Kadam, Age 24 years, at present residing at C/o. Dr. S.Y. Kadam, Ramesh Smruti Nursing Home, Walwa, Tal : Walwa, Dist. Sangli. 11. Ashish Trivedi, 5 Age 24 years, at present residing at 12/2, Subhash Nagar, Shukrawar Peth, Pune. ... Petitioners Versus 1. The State of Maharashtra, through its Department of Medical Education & Drugs, Mantralaya, Mumbai. 2. The Director of Medical Education & Research, St. George’s Hospital Compound, Mumbai 400 001. 3. Bharati Vidyapeeth Deemed University Medical College, Dhanakawadi, Pune 411 043. ... Respondents Mr. V.M. Thorat for the Petitioners in all the Petitions. Mr. G.S. Godbole, Special Counsel with Mr. M.D. NAIK, A.G.P. For State of Maharashtra and Director of Medical Education & Research. Mr. Manoj M. Kadam for Bharati Vidyapeeth. Mr. Rui Rodrigues for University Grant Commission. Mr. R.V. Govilkar for Maharashtra University of Health Sciences, Nashik. Ms. Simran Puri i/by M/s. De Jure for Medical Council of India. 6 CORAM : FERDINO I. REBELLO & J.H. BHATIA JJ. DATED : APRIL 23, 2010 ORAL JUDGMENT (Per Ferdino I. Rebello,J.): Rule in all petitions where rule has not been issued. 2. Considering that in all the petitions the issue is same or similar and pleadings are complete, we propose to dispose of these petitions which will also dispose of the similar issues raised in the other petitions. Considering the inconsistent stand of the State in the various affidavits filed in reply, those will also be considered while disposing of the issue that arises in these petitions. 3. We find that various interim orders have been passed from time to time permitting students of the deemed universities to appear for the C.E.T. Conducted by the State Government and if they have passed the examination, then to proceed accordingly. One such order was passed on 25.11.2001 where this court directed to declare the result of the Petitioners C.E.T. and then to process the matter accordingly. 4. We may now set out a few facts which are relevant for the purpose of disposing of the controversy which arises in these petitions. The facts in W.P. No. 1863 of 2009 to the extent necessary will be referred to. The Petitioner 7 and other petitioners have obtained their M.B.B.S. Degrees from deemed universities being Dr. D.Y. Patil Vidyapeeth, Nerul, Navi Mumbai and Bharati Vidyapeeth Pune, both having their colleges in the State of Maharashtra. The Universities where they pursued their course are recognized by the Medical Council of India and the M.B.B.S. Degree conferred by them is also recognized by the Medical Council of India, like the colleges affiliated to the Maharashtra University of Health Sciences (MUHS). 5. All the Petitioners, had applied to appear for the Common Entrance Test (CET) conducted by the State Government, for admission to post Graduate seats of MD/MS/Diploma P.G. Courses by common entrance test to colleges covered by the said test. The Medical colleges of both these deemed universities were earlier affiliated to various universities in the State before U.G.C., gave them the deemed university status. The State has been issuing instructions which constitute the procedure for selection/admission for the Post Graduate Course in MD/MS/Diploma, which is described as the “Procedure for selection and admission to Medical Post Graduate Courses at the State Government Medical Colleges, Brihan Mumbai Medical Colleges, Tata Memorial Hospital and all other private Medical Colleges/Institutions to opt for admission to PG courses through PGM/CET 2009. Similar instructions were issued for admission for earlier years which form the subject matter of the other petitions. We may only refer to PGM CET 2009. The relevant 8 clauses of which read as under : “7.2.1 A candidates, who have passed final M.B.B.S. examination and completed/completing one year internship training by 31st March, 2009 from a recognized medical college (Annexure F) included in the Schedule of the Indian Medical Council Act, 1956 and situated in Maharashtra, affiliated to Non- Agricultural Universities established under Maharashtra Universities Act, 1994 or the Maharashtra University of Health Sciences Act, 1998 and who have obtained registration either from the Medical Council of India or Maharashtra Medical Council (MMC) will be eligible to appear for PGM-CET 2009. ” “7.6 Those candidates who have passed the Final MBBS Examination from conventional non Agricultural Universities of Maharashtra /MUHS, Nashik will be eligible to appear for PGM-CET-2009.” “7.12 Non-eligibility of Candidate The following candidates are not eligible for applying / appearing at PGM-CET 2009 as the case may be: ” 9 “7.12.4 Candidates who have obtained MBBS degree from Deemed University.” 6. These Petitioners who are M.B.B.S. degree holders from the deemed universities are aggrieved by clauses 7.2.1, 7.6 and 7.12.4 to the extent that they make the Petitioners ineligible to appear for PGM CET 2009. Under these clauses they stand disqualified as they had obtained M.B.B.S. Degree from a deemed university and secondly as they had not passed the final M.B.B.S. Examination from a conventional non agricultural universities established of Maharashtra or the Maharashtra University of Health Sciences Act, Nashik. By the present petitions they seek a prayer that clauses 7.2.1, 7.5, 7.6 and 7.12.4 of the admission procedure be declared as unreasonable, arbitrary and discriminatory and thus violative of article 14 of the Constitution of India. There are also consequential prayers which we need not refer to. 7. The question for consideration is, whether the clauses which bar a holder of a M.B.B. S. Degree from a deemed university situated in the State of Maharashtra to appear for admission to P.G. Course, whose admission is based on the marks obtained in the C.E.T. Conducted by the State of Maharashtra and the clauses which makes them ineligible are arbitrary, unreasonable and discriminatory and consequently violative of the Article 14 of the Constitution of India and or ultra vires being contrary to the law declared by the Supreme Court of India. 10 8. Petitioners contend that admissions to Post graduate courses other than super specialities can only to be on merit subject to state interest and region’s claims of backwardness. For the purpose of considering regional imbalances, the region to be taken into consideration is not a geographical area like the district but the region within the jurisdiction of the University at the minimal level. When reservations become necessary on the aforesaid two grounds, as observed in Dr. Pradeep Jain Vs. Union of India, (1984) 3 Supreme Court Cases 654. Para 22, such preference at the post graduate level should not exceed 50% of the total number of seats available to the post graduate course. We may reproduce Para 22 which reads as under : “....... But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post graduate course in the same medical college or university but such reservation on the 11 basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course.” 9. The issue of Regional reservation does not arise in these cases, in view of Clause 6.7 of the prospectus which reads as under : “6.7 The seats available will be filled in on the basis of State Level Merit in PGM-CET. There will be no regional reservation. There will be reservation in these seats as per Government orders issued from time to time (Annexure "C & D"). “ 10. It is the case of the Petitioners that once they have passed M.B.B.S. Examination from the deemed University in the State of Maharashtra, they cannot be prohibited or debarred from appearing for CET for admission to Post graduate courses conducted by the CET held by the State of Maharashtra even assuming that at the time of admission to the M.B.B.S. Course they had not been selected pursuant to the CET conducted by the State Government or by the private Medical colleges affiliated to M.U.H.S. They had appeared for an all India CET conducted by the deemed university which has been recognized by the Supreme Court. Once the Petitioners were allowed to proceed with the course and passed the M.B.B..S. Examination, which has been recognized by the Medical Council of India, the mere fact 12 that they had not appeared or selected to the M.B.B.S. course based on the CET conducted by the State of Maharashtra or private medical colleges becomes irrelevant. What is relevant is that they have obtained the M.B.B.S. Degree which is recognized by the M.C.I., just like the M.B.B.S. Degree conferred by M.U.H.S. The Petitioners have set out the history of the procedure for admission from the year 1984. We may only mention that the Medical colleges in the state, including the now deemed universities were earlier affiliated with Universities in the State of Maharashtra untill the establishment of M.U.H.S. D.Y. Patil Medical College at Nerul was given status of deemed university from 20.6.2002 and Bharati Vidyapeeth Pune was granted deemed university status by notification of 26.4.1996. 11. We may examine the stand of the State from the various affidavits filed. The State has been filing affidavits taking inconsistent stands which we may now refer to and not even explaining their stand in the subsequent affidavits. In Writ Petition (L) No. 427 of 2002 in Sumit Jain and Others Versus State of Maharashtra and Others, a reply was filed by Mr. Dattatraya Baburao Borade, Desk Officer, Medical Education and Drugs department. The Petitioners there had obtained their degree from Bharati Vidyapeeth, Pune a Deemed University. It is set out that the process of admission of students for graduate as well as Post Graduate courses at the said college had its own procedure. The seats available for the graduate as well as post graduate courses for the said college are not made available to Respondent Nos. 1 and 2 for allotting 13 the seats to students who appear to equivalent examination conducted by Respondent No. 1 and 2. The following averments are relevant : “7. ............ I further say that however, if the Respondent No. 3 college gives its consent to the respondents 1 and 2 for permitting the seats available in the said college for the graduate as well as PG courses to be considered to be allotted to the students who appeared for the equivalent examination conducted for the graduate as well as PG courses by the Respondent Nos. 1 and 2, then the Respondents 1 and 2 would have no objection for permitting the students from the respondent No. 3 college to appear for the PGM-CET examination and in that event, only the petitioners can get admission to the said course provided subject to their result in the said examination.” (emphasis supplied). It is thus clear from the stand of the State, that in the colleges run by it or municipal corporation, students of deemed university were barred from appearing for the entrance test not on the ground of either State interest or regional reservations which are the two only exceptions to merit for admission to the post graduate courses or on the ground that their original admission to the M.B.B.S. Course was not through C.E.T. held in terms of the Supreme Court Judgment or that their fees are not regulated by a committee 14 in terms of the Supreme Court directions or that they were not affiliated to M.U.H.S. The only reason was that though the examination conducted by the deemed university is equivalent to the examinations conducted by it, their students were not admitted by the deemed universities and if they admit these students, they will allow students of the deemed university to appear for the CET examination. 12. In the present petition, Dr. Vasudev Tayade had filed two affidavits. In the first, it is set out that the students who fall short in merit and do not get admission through the CET examination conducted by Government, prefer to take admission to MBBS Course in Private Medical Colleges (Deemed Universities), for which the entrance examination is conducted by respective Deemed Universities only. The fee structure of Private Medical Colleges or the medical colleges which are under the control of Deemed universities is very high. All the students cannot afford to take admission because of the high fee structure in Deemed University Medical Colleges. The candidate belonging to the constitutional reservation are unable to secure admission to Deemed University Medical Colleges. It is also pointed out that the students who obtain their graduate degree from deemed universities can compete for PG admission in (a) All India PG Entrance Examination, (b) Private Association’s PG CET examination, (c) all Deemed University’s individual PG CET Examinations as well as, (d) through the PG CET examination of the Deemed University Medical College from where the candidate does MBBS course. It is 15 also pleaded that financially poor but deserving meritorious students who complete their graduate i.e. MBBS from Govt. Colleges (whether from General or from Reserve Category) are left with few seats for Post Graduate Courses. The reasons thus set out may be summarized as under : (1)Less number of seats available for PG admissions in Govt./ Corporation run Medical Colleges. (2)No avenues open to the reserved category candidate in Deemed University Medical Colleges based on reservations. (3)High fee structure of private medical colleges as well as Deemed University Medical Colleges. (4)Financially poor but deserving meritorious students who complete their graduation i.e. MBBS from Govt. Colleges (whether from General or from Reserve Category) are left with few seats for Post graduate Courses. Thus from the said affidavit it will be clear that the reasons for denying the seats to these students is neither based on State interest or Regional reservation or the reasons set out in the third affidavit. 13. During the course of the final hearing, an additional affidavit was filed by Dr. Vasudev Tayade and we permitted the same in the larger public interest. 16 In the said affidavit the stand of the State in the earlier two affidavits is ignored and the new stand of the State is that the Hon’ble Supreme Court had directed every State Government to appoint a permanent committee which will ensure that the tests conducted by the association of colleges are fair and transparent. The committee was to be headed by a retired Judge of the High Court to be nominated by the Chief Justice of that State. The Government has constituted the committee. Similarly the examination is conducted under the strict supervision of the said committee in a transparent manner. The deemed universities have not joined the CET conducted by the State or the CET conducted by the Association of Private Medical Colleges for admission to MBBS course. They are conducting their own private entrance examination without any supervision either from the State Committees or any other Regulatory Body. The State Government, Municipal and Private Unaided Medical colleges are duly affiliated to the Maharashtra Universities of Health Sciences at Nashik. The MBBS Examinations are conducted and monitored and as against this, the deemed University conduct their own examination without any control from any Regulatory Authority. These are the reasons sought to be given why the students of the deemed universities are ineligible to appear for the examination for PG CET. Again the ineligibility is not based on State Interest or regional interest. The reasons are based on the purported non-control by the State and non-supervision by Committees at the admission stage and fee structure for admission to the M.B.B.S. Course. No explanation has been given as to why they have 17 departed from their earlier two affidavits to deny appearance for admission for entrance examination to the P.G. Course and on what basis the new stand has been taken. 14. Reply has been filed by Mr. Ashok Harit, Deputy Secretary, Medical Council of India. The affidavit deals extensively with the powers of the medical council of India and various judgments of the Supreme Court recognizing those powers and the consequences of recognition by the M.C.I. It is explained that every Medical College affiliated to the University whose degrees are recognized has to have independent recognition and approval of the Medical Council of India for the award of a recognized, degree from a University. The MCI for effectively implementing the provisions of Section 10A of the Medical Council Act, on 20th September, 1993 with the approval of the Central Government, notified the regulations made under Section 10-A read with Section 33 of the Act providing for the detailed statutory scheme and the statutory stipulations to be followed and the criteria to be fulfilled for making application to the Central Government for grant of permission for establishing a Medical college and the condition for recognition of their degrees. The conduct of the inspection of the final examinations held at any medical institution/college for verifying its standard and sufficiency must be in accordance with the provisions of the Act, including the provisions of section 17. MCI for making recommendation to the Central Govt. for grant of recognition of the medical qualification ensures that the college meets with 18 the statutory imperative stipulated in the provisions of the Act itself and which has also been duly reaffirmed and reemphasized in the statutory regulations framed by the MCI u/s. 10A read with section 33 of the Act with the approval of the Govt. of India. Reference is then made to the judgment in MCI Vs. Rajiv Gandhi University of Health and Sciences (2004) 6 SCC 76. Reference is then made to the regulations framed by the MCI which are known as PGM Education Regulations, 2000. 15. We may gainfully refer to Regulation (9) which reads as under : “9.SELECTION OF POSTGRADUATE STUDENTS. 1. Students for Postgraduate medical courses shall be selected strictly on the basis of their academic merit. 2. For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses :- i. On the basis of merit as determined by the competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same state; or ii. On the basis of merit as determined by a centralized competitive test held at the national level; or iii. On the basis of the individual cumulative performance at the first, second and their MBBS 19 examination, if such examination have been passed from the same university; or iv. Combination of (i) and (iii): Provided that wherever entrance test for Postgraduate admission is held by the State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical courses shall be fifty per cent for general category candidates and 40 per cent for the candidate belonging to Scheduled Castes, Scheduled Tribes and Other Backward classes. Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty per cent by the management of the institution on the basis of merit.” The stand of the MCI is thus that the MBBS degree awarded by the deemed Universities are recognized and are included in the 1st schedule to the IMC Act, 1956. 16. A reply has also been filed on behalf of the University Grants Commission by Mr. S.C. Chadha, Deputy Secretary. It is pointed out that under Section 3 of U.G.S. Act. Guidelines have been framed which stipulates model constitution of the MoA and Rules to be adopted by institutions for grant of Deemed to be University status. Reference is made to Clauses 12, 13 and 14 which read as under : 20 “12. The Institution and its admission will be open to all persons regardless of race, religion, caste or creed and the area/place of residence in India. No condition shall be imposed as regards any religious belief either in admitting or appointing the teachers/staff. However, admission of Foreign students shall be governed a s per the guidelines/directions of the UGC. 13.Admission shall be made on an All India basis to the identical courses in all the deemed to be universities through a common entrance test conducted either by the University Grant s Commission or by an Institution/Agency identified and approved by the UGC. This shall apply also to those institutions which have already been given the deemed to be university status. 14. Admission to the various professional course, such as Medical, Dental, Nursing, Engineering Pharmacy, Management and Legal Education etc. shall be made on the basis of regulations framed by the UGC in consultation with the respective statutory councils. The fee structure will also be the same as laid down in the respective regulations.” 21 Reference is also made to Clauses (6) and (7) which read as under : “Further, clause 6 and 7 of the model MOA stipulates the following effect regarding the issue of admission as well as fees : 6. Institute Open to All : (i) The Institute shall be open to all persons of whatever race, religion, creed, caste, class and geographical area of