IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5607 of 1996 With SPECIAL CIVIL APPLICATIN NO. 5898 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL Sd/- and MR.JUSTICE A.M.KAPADIA Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? Yes 2. To be referred to the Reporter or not? Yes : 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? No 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? No 5. Whether it is to be circulated to the Civil Judge? No : -------------------------------------------------------------- KARMASAD MEDICAL ASSOCIATION Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: SPECIAL CIVIL APPLICATION NO. 5607/96 MR GIRISH PATEL WITH MR MINESH PARIKH for petitioner MR MA BUKHARI, AGP for respondents no.1 & 2 MR SN SHELAT for MR MITUL K.SHELAT for respondent no.3 MR SUNIL C PATEL for respondent no.4 MR NV ANJARIA for respondents no.5 & 8 MR VIJAY H. PATEL for respondent no.6 MR RR MARSHAL for respondent no.7. SPECIAL CIVIL APPLICATION NO. 5898/99 MR YOGESH RAVANI WITH MR AMIT KOTAK for the petitioners MR MA BUKHARI, AGP for respondent no.1 MR MUKESH R SHAH for respondent no.2 MR SN SHELAT for MR MITUL K.SHELAT for respondents Nos.3 & 7 MR NV ANJARIA for respondent no.4 MR JR NANAVATI for respondent no.5 MR RR MARSHAL for respondent no.6 MR GM JOSHI for respondents no.8 to 18. -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE A.M.KAPADIA Date of decision: 04/02/2000 ORAL JUDGEMENT (Per : Panchal, J.) The dispute, in these petitions, which are filed under Article 226 of the Constitution, relates to admission to Post Graduate Degrees and Diploma medical courses at the medical colleges affiliated to (i) Gujarat University, Ahmedabad, (ii) Maharaja Sayajirao University, Baroda, (iii) Saurashtra University, Rajkot, and (iv) South Gujarat University, Surat. 2. Special Civil Application No. 5607/96 is filed as public interest litigation by an Association claiming to be a registered Association of the students undergoing studies in medical courses at Pramukh Swami Medical College, Karamsad, which is affiliated to Sardar Patel University, Vallabh Vidyanagar - Anand, District : Kheda. The main relief claimed therein is that as the rule enabling the above-referred to universities to give preference to their own students in the matter of giving admission to the post graduate medical courses, is unconstitutional, the Universities should be restrained from enforcing that rule and the universities should be directed to consider the students who have passed final M.B.B.S. examination from Pramukh Swami Medical College, Karamsad on merits, while giving admission to post graduate medical courses. In the alternative, the relief prayed for is that the State of Gujarat should be directed to conduct post graduate medical common entrance test for all the students of all the universities located in the State of Gujarat and grant admission to post graduate medical courses on the basis of result of said test or each university should be directed to hold common entrance test for atleast 30% of 75% of seats for the students of other universities located in the State and grant admission to those students, who qualify at the test according to merits. 3. In Special Civil Application No. 5898/99, 16 students, who are undergoing medical courses at Pramukh Swami Medical College, Karamsad, claim that the abovereferred to universities should be directed to implement the decision of the Supreme Court in U.P. Junior Doctors' Action Committee and others v. Dr. B.Sheetal Nandwani and others, AIR 1992, S.C. 671 and evolve a common entrance test for admission to post graduate medical courses. They have prayed that the respective rule of the university concerned which enables it to prefer its own students in the matter of admission to post graduate medical courses being violative of principles enshrined in Articles 14 & 16 of the Constitution, should not be permitted to be enforced. 4. Those students, who pass Std.XII Higher Secondary Certificate Examination, Science Stream, conducted by Gujarat Secondary Education Board, are eligible for being considered for admission to 1st M.B.B.S. Course under the Centralised Admission Scheme. As per the said scheme, 15% of the total seats are meant for all India students who pass common entrance test; whereas 85% of the seats are reserved for students passing Higher Secondary Certificate Examination. As the seats are less and number of claimants is more, a merit list is drawn up for admission to 1st M.B.B.S. Course and admissions are given as per the number in merit list and preference indicated by the student concerned. 5. We may state that Pramukh Swami Medical College at Karamsad started functioning and imparting education in medical courses in the year 1992 and was recognised by the Medical Council of India in the year 1994. After passing XIIth Std. Higher Secondary Certificate Examination in science stream, the petitioners were granted admission to Pramukh Swami Medical College, Karamsad. None of the petitioners had appeared at the common entrance test meant for all India students for securing admission to 1st M.B.B.S. Course in any of the medical colleges affiliated to Gujarat University, Maharaja Sayajirao University, Saurashtra University or South Gujarat University. All these universities have framed rules governing admission to post graduate degree and diploma medical courses other than M.Ch and D.M. at the medical colleges affiliated to the respective university. It is common ground between the parties that the rules framed by each university are identical. For the purpose of these petitions, the petitioners have referred to rules framed by the Gujarat University and a detailed affidavit-in-reply is also filed on behalf of Gujarat University. Therefore, we propose to refer to rules governing admission to post graduate degree and diploma courses made by the Gujarat University. Rule 1 lays down eligibility criteria; whereas rule 1-A provides that admission and placement of the candidates under particular Post-graduate course shall be decided by the Admission Committee of the University to be constituted as indicated therein. Rule-2 stipulates that as per directive of the Supreme Court of India, 25% of the total available seats in an academic year in various post graduate degree and diploma courses in each subject will be filled up on the basis of All India Competitive Entrance Examination; whereas Rule-3 provides that remaining 75% of the total seats in post graduate courses will be filled-up by the admission committee of the university. For the purpose of selection, it is specified that the First Academic Term would be from January 1 to June 30 and Second Academic Term would be from July 1 to December 31 and seats to be allotted from 75% of the total seats will be distributed in the ratio of 3:1 for First and Second Academic Term respectively. Rule-4 of the rules states that selection of candidates eligible under rule- 1 for seats under rule-3 i.e. remaining 75% of total seats, has to be done category-wise on the basis of merits as laid down in subsequent rules. Rule 4.1, with which we are concerned, provides that preference shall be given to candidates of not more than 1 year standing after completion of internship/Housemanship graduating from this university; whereas rule 4.2 states that after merit list under rule 4.1 is exhausted, the candidates who have completed post-graduate degree course from this university and those who have completed internship more than one year before start of the term, will be considered provided that they have taken M.B.B.S. degree from this university. Rule 4.3 of the Rules mentions that candidates graduating from any other university located in Gujarat State and not completing any post-graduate course, will be considered after selection of candidates in the merit list as per rule 4.2. It further provides that before a candidate graduating from any other university located in Gujarat State and not completing any post-graduate course is considered after selection of candidates in the merit list as per rule 4.2, such category of reserved students referred to in rule 5 from amongst the candidates graduating from other universities within the State of Gujarat and not completing any post-graduate course will be considered in respect of balance of seats left unfilled after operation of rule 4.2 as per rule 5.5(b). Rule 4.4 further provides that after operation of rule 4.3, candidates graduating from any other university located in Gujarat State who have completed post-graduate courses will be considered. Though rule 4.5 stipulates that any vacancy after operation of rule 4.4 shall remain unfilled, it is clarified that this provisions may be relaxed in the subjects of Anatomy, Physiology, Biochemistry, Forensic Medicine, Preventive & Social Medicine, Pharmacology and Microbiology only at the discretion of the university, only for the candidates graduating from out State university. Rule-7 provides as to how merit order is to be determined. It stipulates that separate merit list for each status/category should be prepared. Rule 7.3 of the Rules states that merit list will be notified as under :- Merit list-1.1 = Candidates under Rule 4.1 belonging to Open Merits (Unreserved) seats. Merit list -1.2 = Candidates under Rule 4.1 belonging to S.C. Merit list -1.3 = Candidates under Rule 4.1 belonging to S.T. Merit list -1.4 = Candidates under Rule 4.1 belonging to SEBC. Merit list -2.1 = Candidates under Rule 4.2 belonging to Open Merit seats. Merit list -2.2 = Candidates belonging to S.C. Merit list -2.3 = Candidates belonging to ST Merit list -2.4 = Candidates belonging to SEBC Merit list -3.1 = Candidates under Rule 4.3 belonging to Open Merit seats. Merit list -3.2 = Candidates under Rule 4.3 belonging to SC. Merit list -3.3 = Candidates under Rule 4.3 belonging to ST. Merit list -3.4 = Candidates under Rule 4.3 belonging to SEBC Merit list -4.1 = Candidates under Rule 4.4 belonging to Open Merit seats. Merit list -5.1 = Candidates under Rule 4.5 belonging to Open Merit seats. 6. According to the petitioners, each university gives preferential treatment to its own students in the matter of admission to post-graduate medical courses, as a result of which, no student of other university located in the State of Gujarat gets admission in the post-graduate medical courses. The petitioners claim that preferential treatment meted out to the students of university concerned and exclusion of students of other universities, is arbitrary, irrational and violative of the principles enshrined in Article 14 of the Constitution. It is stated by the petitioners that medical education being a subject under the domain of Union of India and the field of medical education having been covered by Entries No. 63 to 66 of Union List read with Entry No.25 of the Current List, the policy relating to admission to post-graduate medical courses adopted by the State of Gujarat or Universities must be in conformity with the law made by the Parliament and as the concerned rule of the university which enables it to prefer its own students in the matter of granting admission to post-graduate medical courses, is not in conformity with the regulations framed by the Medical Council of India, it should be struck down. The petitioners assert that admission to post-graduate medical courses should be based on selection test and not on the basis of M.B.B.S. results alone and the cases of students of other universities located in the State should also be considered on merits while granting admission to post-graduate medical courses. What is stressed by the petitioners is that after passing M.B.B.S. final examination, all the students belong to one class, who are similarly situated and, therefore, preference clause mentioned in admission rules of each university being violative of provisions of Article 14, should be struck down. It is pleaded by the petitioners that classification sought to be made on the basis of passing final M.B.B.S. examination from Gujarat University and other universities located in the State, has no rational nexus to the object to be achieved i.e. to select talented persons for post-graduate medical courses and if the rule is permitted to be operated, it would result into frustrating very object of rule for which it is enacted. According to the petitioners, the relevant rule relating to admission to post-graduate medical courses enables the universities to practise discrimination on the ground of residence and the same being ultravires, should be set aside. It is also claimed that admission to post-graduate medical courses partakes the characteristic of employment as well, as the students admitted are entitled to receive stipend and, therefore, the rule enabling the university to prefer its own students in the matter of admission to post-graduate medical courses, is also violative of principles contained in Article 16 of the Constitution. The petitioners have asserted that 13 States in the Country have prescribed post-graduate medical common entrance test for selection to post-graduate medical courses and, therefore, the State Government should be directed to conduct post-graduate medical common entrance test for all the students of all the universities located in the State of Gujarat or in any view of the matter, 30% of 75% of the total seats in post graduate medical courses should be filled-up as per the post-graduate medical common entrance test to be conducted by the State. Under the circumstances, the petitioners have filed the above-numbered petitions and claimed reliefs to which reference is made earlier. 7. In both the petitions, an affidavit-in-reply has been filed by Mr. M.P.Jadia, Registrar of the Gujarat University controverting the claim advanced in the petitions. The reply emphasises that the petitioners and other similarly situated students can secure admission in the University of their choice by appearing at the All India Competitive Entrance Examination for admission to post-graduate medical courses and, therefore, the relief claimed by the petitioners that there should be another entrance examination test for the students of other universities being unjustified, should be rejected. It is stressed that the universities located in the State i.e. Gujarat University, Ahmedabad, Saurashtra University, Rajkot, Bhavnagar University, South Gujarat University and Maharaja Sayajirao University, Baroda have 25% of the seats reserved for candidates who appear at All India Competitive Entrance Examination and as the petitioners have every opportunity to get admission to these universities, the petitions should not be entertained. It is asserted that in view of the decisions of the Supreme Court in (i) Dr. Pradeep Jain etc. v. Union of India and others, AIR 1984 SC 1420, and (ii) Dr.Dinesh Kumar & others v. Motilal Nehru Medical College, Allahabad and others, AIR 1986 SC 1877, institutional preference is permissible and cannot be regarded as violative of provisions of Article 14 of the Constitution. It is further mentioned in the reply that in U.P. Junior Doctors' Action Committee and others (supra), no direction is given by the Supreme Court to hold entrance examination when the students who are sought to be admitted, are students from the same university and, therefore, prayer made by the petitioners in Special Civil Application No. 5898/99 to direct the respondents to implement the said decision should not be granted. According to the Gujarat University, students from Pramukh Swami Medical College, Karamsad are on the same footing as any other student, but it has to be recognised that it is open to them to compete at the All India Entrance Examination and qualify for admission to any of the universities located in the State of Gujarat. Mr. S.D.Swaminarayan, Deputy Registrar, Gujarat University, in his reply affidavit has claimed that students who have passed their final M.B.B.S.examination from Pramukh Swami Medical College,Karamsad, are not excluded from consideration for admission to post-graduate medical courses of the Gujarat University and there being several institutions of All India character, which provide for entrance test for post-graduate medical courses, it is open to them to get admission by appearing at the entrance test and securing admission on merits. Mr. M.P.Jadia,Registrar of the Gujarat University has filed another affidavit-in-reply mentioning that students seeking admission to post-graduate medical courses in clinical subjects are required to obtain residency in the said subject, but the authority to grant residency is not the Gujarat University and as it is competent for the Gujarat University to give institutional preference to its own students, rule-4 should not be regarded as violative of Articles 14 & 16 of the Constitution.Mr. P.M. Asari, Under Secretary to Government,Health and Family Welfare Department, Sachivalaya, Gandhinagar has filed reply affidavit mentioning that earlier there were no facilities of post-graduate medical courses in the college affiliated to Sardar Patel University, but now facilities for the post-graduate studies in some subjects are available even at Pramukh Swami Medical College, Karamsad and, therefore the petitions should be dismissed. It is stated that rule-4 of the Rules relating to admissions to post-graduate medical courses is not violative of provisions of Artilce-14 of the Constitution in view of the decisions of the Supreme Court and the petitions should be dismissed. 8. Mr. Girish Patel, learned Senior Advocate and Mr. Yogesh Ravani, learned Counsel for the petitioners contended that within the State of Gujarat itself, no university can discriminate between its own students and students of other universities in the State while granting admission to post-graduate medical courses and, therefore, the rule which enables each university to prefer its own students should be held to be arbitrary and bad in law. It was claimed that the students passing final M.B.B.S. examination from other universities cannot be excluded from consideration while granting admission to post-graduate medical courses because students passing final M.B.B.S. examination from a university located within the State of Gujarat, cannot be completely bracketed with all India students and, therefore, the rule which empowers the University not to consider students of other universities located within the State of Gujarat is illegal. It was pleaded that either the law itself or an action taken thereunder may be discriminatory on the ground of Article 14 and even if it is not so, in actual practice, operation of law may result into discrimination and as operation of rule which enables the university to prefer its own students in actual practice results into discrimination, the same should be struck down. According to the learned Counsel, preference means selection between two students similarly situated and, therefore, what is laid down in the rule which enables the university to prefer its own students, is in real sense no preference, but wholesale reservation which is not justified at all. It was urged that all universities located in the State of Gujarat are statutory universities in the sense that they are created under the statute framed by the Legislature and all universities are financed by the Government of Gujarat over and above financial assistance rendered by the University Grant Commission or body like Medical Council of India and when admissions to 1st year M.B.B.S. course are under a centralised scheme, a university should not be permitted to prefer its own students in the matter of admission to post-graduate medical courses. The learned Counsel for the petitioners contended that none of the petitioners had voluntarily chosen Pramukh Swami Medical College, Karamsad for prosecuting studies in medical, but were allotted to that College on the basis of merits determined by Centralised Admission Committee, which was a fortuitous circumstance, but on that ground admissions cannot be denied to them to post-graduate medicine courses in the universities other than Sardar Patel University to which Pramukh Swami Medical College, Karamsad is affiliated. According to the learned Counsel for the petitioners, once students pass final M.B.B.S. examination, they form one class within which no discrimination can be practiced and, therefore, Rule enabling the university concerned to prefer its own students in the matter of admission to post-graduate medical courses being arbitrary should be struck down. It was claimed that education is the key to open gates for better opportunities as well as for self-development and, therefore, preferential clause framed by the universities being irrational,should not be permitted to be enforced. It was mentioned that from the social point of view also a preference given by the university concerned to its own students cannot be sustained because society is spending huge amount of money after education and education being social capital, preferential clause should be condemned as arbitrary. It was maintained that according to the Supreme Court, admission policy to post-graduate medical courses should be framed in such a manner as to get best merit and all students should be given equal opportunity to secure admission to higher studies, but such preferential privilege is not approved by the Supreme Court. What was emphasised was that in primary education, consideration is equality viz. all should have opportunity to study at primary level; whereas secondary education system is auxilliary in nature and principle is of universalisation, but thereafter diversification takes place and merits comes in the picture so far as higher education is concerned and, therefore, a rule enabling university to prefer its own students does not satisfy the test of Article 14 of the Constitution. The learned Counsel for the petitioners asserted that as per the regulations framed by the Medical Council of India, merit is the only criterion on the basis of which admission to post-graduate medical courses can be granted and the Rule enabling the university concerned to prefer its own students not only makes a wholesale reservation in favour of the students of that university, but excludes totally the students of other universities located in the State of Gujarat and, therefore, it being violative of Article 14 of the Constitution, should be declared to be ultravires. The learned Counsel for the petitioners emphasised that any preference whether based on residence or domicile or institution is a departure or deviation from or exception to merit principle and the respondents having failed to justify the departure, reliefs claimed in the petitions should be granted. It was argued that the impugned rule of Gujarat University providing for preference to Gujarat University M.B.B.S. students, is a rule of reservation in post-graduate studies and, therefore, should be held to be violative of Articles 14, 15 & 16 of the Constitution. It was claimed that though the rule uses the word "preference" it really means complete reservation for M.B.B.S. students of Gujarat University or complete exclusion of M.B.B.S. students of other universities located within the State of Gujarat and, therefore, should be held to be arbitrary. It was maintained that petitions raise constitutional question of intra-state equities amongst M.B.B.S. students of the universities located within the State in respect of admission to post-graduate studies in medicine and rule which enables the Gujarat University to prefer its own students being unconstitutional, the respondents should be directed either to evolve post-graduate medical common entrance test or a test for 30% of 75% of total seats for the students of other universities of the State. Mr. Y.N.Ravani, learned Counsel for the petitioners in Special Civil Application No. 5898/99 made additional submissions that those students who are admitted to post-graduate medical courses are entitled to receive stipend which partakes the characteristic of employment by the State and as the rule which enables the university concerned to prefer its own students in the matter of employment, is violative of provisions of Article 16 of the Constitution, the same should be struck down. In support of these submissions, the learned Counsel for the petitioners placed reliance on the decisions rendered in (1) Minor P. Rajendran and others v. State of Madras and others, AIR 1968 SC 1012, (2) Minor A. Periakaruppan and others v. State of Tamil Nadu and others, AIR 1971 SC 2303, (3) Dr.Jagdish Saran and others v. Union of India and others, AIR 1980 SC 820, (4) Dr. Pradeep Jain v. Union of India and others, AIR 1984 SC 1420, (5) Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad and others, AIR 1986 SC 1877, (6) Nidamarti Maheshkumar v. State of Maharashtra and others, AIR 1986 SC 1362, (7) State of Rajasthan and anr. v. Dr. Ashok Kumar Gupta and others, AIR