IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5156 of 1996 -------------------------------------------------------------- SHAJUL GEORGE Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AMIT M PANCHAL for Petitioner MR SUNIL C PATEL for Respondent No. 2 SERVED BY DS for Respondent No. 5 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5453 of 1996 -------------------------------------------------------------- HETALKUMAR RAJENDRAPRASAD YAGNIK Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AMIT M PANCHAL for Petitioner MR SUNIL C PATEL for Respondent No. 1 -------------------------------------------------------------- IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5555 of 1996 For Approval and Signature: Hon'ble THE CHIEF JUSTICE G.D.KAMAT and MR.JUSTICE C.K.THAKKER ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- RH SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR GM JOSHI for Petitioners GOVERNMENT PLEADER for Respondent No. 1, 2, 3, 4 -------------------------------------------------------------- CORAM : THE CHIEF JUSTICE G.D.KAMAT and MR.JUSTICE C.K.THAKKER Date of decision: 05/10/1996 CAV JUDGMENT (PER C.K.THAKKER J.) Rule. Mr. Y.F.Mehta appears and waives service of rule on behalf of State authorities and Mr.H.M.Mehta, appears and waives of service of rule on behalf of Union of India. In the facts and circumstances of the case and with the consent of parties, the matters were taken up for final hearing. All these petitions have been filed under public interest litigation challenging legality and validity of certain rules for admission to First M.B.B.S. / First B.D.S./First B.Physio. Courses at the Government Medical Colleges, Pramukh Swami Medical College, Karamsad, Government Dental Colleges and Schools of Physiotherapy for the academic year 1996-97. Reservation of 48 % of total seats instead of available seats after deducting 15% of the total number of seats in all Medical Colleges to be filled in on the basis of All India Entrance Examination is challenged. A grievance is also made against twelve payment seats for Non-Resident Indians (NRI) in Pramukh Swami Medical College, Karamsad, respondent no.4 to be filled in by receiving minimum amount of 15000 US Dollars per annum per student with no maximum limits. The validity of a rule by which the Central Government is permitted to nominate ten students at the First MBBS course at M.P.Shah Medical College, Jamnagar is also questioned on the ground that there cannot be any reservation of seats either for Central Government or for State Government not provided by Art.15 of the Constitution. To appreciate the controversy raised in this group of petitions, few relevant facts of the first petition, i.e. Spl.C.A.No. 5156 of 1996 may now be stated; The petitioner in this case is one Shajul George, who has approached this court through his father and natural guardian M.J.George. The petitioner claims to have passed 12th standard Higher Secondary Certificate Examination conducted by the Gujarat Higher Secondary Examination Board at the first attempt in March 1996. He secured 394 marks out of 450 marks in Science Stream and thus secured about 87.55 % of marks. The petitioner has stated that he aspires to pursue professional course of medicine or engineering and for that he filled in necessary form seeking admission. When he studied the Rules relating to admission to professional courses for the current academic year 1996-97, he found that they are arbitrary, unreasonable and violative of constitutional provisions. They are also inconsistent with various decisions of the Apex Court. He felt that if the rules framed by the respondent authorities would be implemented, he and other similarly situated persons would be deprived of their legitimate rights of getting admission to professional courses and, hence, as pro bono publico, he has filed this petition. Similar petitions are filed by other petitioners. Notices were issued and Respondents have appeared. Affidavits were filed on behalf of the State as well as on behalf of Union of India. We have heard at length M/s. A.M.Panchal and G.M.Joshi for the petitioners, Mr.Y.F.Mehta, Assistant Government Pleader for State Authorities and Mr.H.M.Mehta Senior Standing Counsel for Union of India. Mr. Panchal, learned counsel for the petitioners, raised the following contentions; (1) As per the law laid down by the Supreme Court, 15% seats from the total seats at the first MBBS course are required to be reserved for All India Entrance Examination. The seats for Schedule Caste. Schedule Tribe and SEBC under Art.15 of the Constitution can be reserved only thereafter and from the available seats of 85%. The respondents, however, have acted illegally by making reservation of 48% seats for S/C,S/T and SEBC from the total seats. (2) The respondents have no right to reserve ten seats at the First MBBS course at M.P.Shah Medical College, Jamnagar to be nominated by the Central Government. (3) No principles and/or guidelines have been laid down for such nomination. No provision for obtaining minimum marks is made. It is left open to the Central Government to make nomination of ten students at its sweet will irrespective of merits. This provision is, therefore, arbitrary and unreasonable. (4) A provision for filling of twelve seats for Non-Resident Indians (NRI) by receiving a minimum amount of 15000 US Dollars per student per annum with no maximum limit is contrary to and inconsistent with the law declared by the Apex Court. Mr.G.M.Joshi supported the arguments of Mr. Panchal. Mr.Y.F.Mehta, learned Assistant Government Pleader, on the other hand, supported the action of the authorities and submitted that no case has been made out by the petitioners. (1) Regarding twelve payment seats for NRI and fixing of 15000 US Dollars per student, per annum, Mr.Mehta produced a corringendum dt. August 1, 1996 issued by the State Government wherein it is stated that the word "minimum" appearing in Rule 3 of the Rules has been deleted. He also made a categorical statement that fee of 15000 US Dollars per student per annum is the "maximum" and not "minimum". (2) Regarding reservation for S/C,S/T and SEBC, Mr.Mehta submitted that the action of the respondents is in conformity with the Constitution as also in consonance with the decisions of the Hon'ble Supreme Court. He submitted that the reservation of 15% seats from the total seats available for All India Entrance Examination does not affect 48% reservation under Art. 15 of the Constitution for Schedule Caste, Schedule Tribe and SEBC. The said reservation is permissible in law. (3) Regarding ten nominees by the Central Government, at the First MBBS Course at M.P.Shah Medical College, Jamnagar, it was argued that it was a policy decision taken by the State which cannot be interfered with by this court. Mr.H.M.Mehta, learned Senior Standing Counsel supported the case put forward by the State Government. He, moreover, raised the following contentions; (4) The petitioners have approached this court by way of public interest litigation though the grievance is of a private nature. This court may, therefore, not exercise extraordinary powers in their favour. If the petitioners belong to Schedule Caste, Schedule Tribe and/or SEBC, they can avail of benefits available under the Rules. If they do not belong to that class, they have no right to make grievance against reservation. (5) The petitioners have not made those students party respondents who are likely to be affected. Hence, the petitions are liable to be dismissed for want of necessary parties. (6) Regarding ten seats earmarked for nominees to be nominated by the Central Government, Mr.Mehta submitted that on principle the action cannot be held illegal. Nomination of a particular student may be bad. It would , however, not affect policy. Now, before we proceed to decide controversy raised in these petitions, it would be appropriate to consider the rules framed by the State Government for granting admission to Medical /Dental/Physiotherapy Courses. The rules are known as the " Rules for admission to First M.B.B.S./First B.D.S./First B.Physio. Courses at the Government Medical College, Pramukh Swami Medical College, Karamsad, Government Dental Colleges and Schools of Physiotherapy for the academic year 1996-97." Rule 1 defines `qualifying examination'. Rule 2 makes provision for reservation. It states that 7%, 14% and 27% of the total seats as mentioned in Annexure A to the Rules, shall be reserved for the candidates belonging to S/C, S/T including Garudi and Jogi and S.E.B.C. respectively. Rule 2.7 implements the judgment of the Hon'ble Supreme Court and states that 15% of the available seats at all Government Medical and Dental Colleges will be allotted to candidates of All India Entrance Examination. Rule 3 declares that 88 seats out of total sanctioned seats of 100 in Pramukh Swami Medical College, Karamsad will be known as "Free Seats" and remaining twelve seats will be known as "NRI Seats". N.R.I. seats will be filled up only by N.R.I. students by receiving minimum 15000 US Dollars Fee per student per annum. Rule 4 prescribes criteria of eligibility for admission, whereas Rule 5 deals with determination of Merit Order. Rule 6 mandates that difference between the marks obtained by students belonged to SEBC and students seeking admission from open merit list should not be more than 5% at each college. Rule 7 prescribes minimum age for admission. Rules 8 and 9 provide for placement of students to the professional college. Rule 12 deals with ten nominees by the Central Government. It states "Notwithstanding anything contained in these rules, 10 (ten) nominees as may be nominated by the Central Government for the First MBBS Course will be admitted in the First MBBS Course at M.P.Shah Our attention was invited by the learned counsel to Rules for admissions to Medical and Dental Colleges for the year 1995-96. The relevant rules for the academic year 1995-96 and 1996-97 are reproduced hereinbelow; ADMISSION RULES 1995-96 1996-97 Title Title ......L.......T.......T.......T.......T.......T.......T...................J. Rules for admission to First Rules for admission to First M.B.B.S./First B.D.S./First M.B.B.S./First B.D.S./First B.Pysio. Courses at the Gover- B.Pysio. Courses at the Gover -nment Medical College, Pramu- -nment Medical College, Pramu- -kh Swami Medical Colleges, -kh Swami Medical Colleges, Karamsad, Government Dental Karamsad, Government Dental er ment Dental ernment Dental ernment Dental ernment Dental ernment Denta ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental e nment Dental ernment Dental ernment Dental ernment Dental ernment Dent l ernment Dental ernment Dental ernment Dental ernment Dental ernmen Dental ernment Dental ernment Dental ernment Dental ernment Dental rnment Dental ernment Dental ernment Dental ernment Dental ernment Den al ernment Dental ernment Dental ernment Dental ernment Dental ernme t Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment De tal ernment Dental ernment Dental ernment Dental ernment Dental ernm nt Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ernment Dental ern of Physiotherapy. These rules Physiotherapy for the acade- will be operated after dedu- -mic year 1996-97. -cting of 15 percent seats reserved for the All India Entrance Examination as per the judgment of Honourable Supreme Court and herein after will be referred to as "State Quota Seats". 2. Seven percent of the total 2. Seven percent, forteen percent seats earmarked for admission and twenty seven percent of the to the first M.B.B.S./First total seats as mentioned in Annex. B.D.S./First B.Physio course A to this Rules shall be reserved respectively shall be reserved for the candid for candidates belonging to SC, ST including Garudi and Jogi scheduled castes and fourteen and SEBC respectively provided percent of the total seats shall that (i) widows and (ii) orphan be similarly reserved for candi- childrenn shall be in the 27% dates belonging to Scheduled reserved seats for SEBC tribes. Nomadic Tribes and (excluding creamy layer candi- Denotified Tribes and twenty -dates as per GR SW Deptt No. seveen percent of total seats SCY.1194-Conf.109-A, dt.1.11.95) in Medical/Dental Colleges and subject to the classification in physiotherapy course shall that the reservation as applicable be reserved for the candidates to Pramukh Swami Medical College belonging to the socially and shall be computed with reference educationally backward classes to the total number of seats provided that (i) widows and available in the college although available in the college although available in the college although avai able in the college although available in the college although available in the college although available in the college although available in t e college although available in the college although available in the co lege although available in the college although available in the college although available in the college although available in the college alth ugh available in the college although available in the college although available in the college although available in the college although av ilable in the college although available in the college although availab e in the college although available in the college although available in the college although available in the college although available in the ollege although available in the college although available in the colle e although available in the coll (ii) orphan children shall be there shall be no reservation in in this 27% reserved for SEBC "NRI seats" prescribed hereunder subject to the classification in rule 3. This reservation shall that the reservation as appli- be for the candidates belonging -cable to Pramukhswami Medical to SC/ST (including Garudi and College shall be computed with Jogi)/SEBC recognised as such in reference to the total number the State of Gujarat and not to of seats available in the those who have migrated from college although there shall other States. be no reservation in the "payment seats" described here- -under in rule 3. Under the State quota as referred above, these seats are reserved for the candidates belonging to SC/ST/ UNT and SEBC recognized as such in the State of Gujarat and not to those who have mi other States. 2.7. Fifteen percent of availa seats at all Government Medical and Government Dental Colleges recognised by Medical Council of India and Dental Council of India respectively will be ------ allotted for candidates of All India Entrance Examination nominated by the Director General of Health Services, Govt. of India, New Delhi as per the judgment of the Hon'ble Supreme Court of India in Writ petition No. 348-352/85. 3. Fifty percent of the total 3.Eighty eight (88) seats out sanctioned seats in the Pramukh of the total sanctioned seatsd eatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seats seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seats d seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seat d seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd sea sd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd se tsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd s atsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd eatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seats seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seats d seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seatsd seat d seatsd seatsd seatsd seatsd seatsd seatsd seatsd seats ical shall be known as "Free Seats" College, Karamsad will be the other fifty percent shall known as `Free Seats" and be known as "Payment Seats". remaining Twelve (12) seats The higher tuition fees payagble will be known as `NRI seats'. for a payment seat shall be The admission on NRI seats Rs.55,000/- (Rupees Fifty Five will be made available to thousand only) per term or in N.R.I. students only by other words Rs.1.10 lakhs per receiving minimum 15,000 US annum. Dollars fee per student per annum. 12. Notwithhstanding anything contain(ed) in these rules the 10 (ten) nominees as may be nominated by the Central Govt. ------ for the First MBBS course .............J course at M.P.Shah Medical College, Jamnagar." From the rules extracted hereinabove, it becomes clear that in the rules for the year 1995-96, it was specifically stated that those rules would operate after deduction of 15% seats reserved for All India Entrance Examination which were referred as "State Quota Seats". On the other hand, in the rules for the year 1996-97, the phrase "State Quotta Seeats" is missing. It is, however, not disputed and in our opinion, cannot be disputed that 15% of the total seats are required to be reserved for All India Entrance Examination. Similarly, Rule 3 of the rules for the year 1995-96 describes 50% seats of Pramukh Swami Medical College Karamsad as "Free Seats" while other 50% seats as "Payment Seats" and higher tution fees payable for a payment seat was fixed at Rs.55,000/per term or Rs.1.10 lakhs per annum. No minimum payment was, however, prescribed. Rule 3 of the Rules for the year 1996-97, on the other hand,treats 88 seats as free seats and reserves 12 seats as NRI seats for NRI students only and minimum amount fixed is 15000 US Dollars per student per annum. Rule 12 providing for nomination of ten seats by the Central Government for the First M.B.B.S. Course at M.P.Shah Medical College, Jamnagar is only in the current rules for the year 1996-97 and no such rule was found in the year 1995-96. From the pleadings of the parties and contentions raised at the time of hearing some important points arise for our consideration. So far as preliminary contention of Mr.H.M.Mehta, regarding maintainability of petitions is concerned it does not detain us much. The petitioners have approached this court by filing these petitions and by espousing cause not of individual nature, but of other students similarly situated. Again, the litigation cannot be said to be against a particular person or for personal vengence. It also cannot be contended that the petitioners have approached this court malafide and/or with oblique motives. There is no abuse of process of court on their part. The petitions, therefore, cannot be dismissed on that ground. The preliminary contention has, therefore, no force and is rejected. So far as twelve payment seats for NRI students at Pramukh Swami Medical College, Karamsad are concerned, in the light of the corrigendum issued by the State Government and in view of the statement made by Mr.Y.F.Mehta, learned Assistant Government Pleader that amount of 15000 US Dollars is the maximum fee for per student, per annum the rule cannot be held arbitrary, unreasonable or ultra vires. As held by the Hon'ble Supreme Court, for payment seats, maximum fee must be prescribed for such seats and as maximum fee is prescribed, the petitioners cannot make any grievance. Mr. Panchal also conceded that in view of the corrigendum and statement of Mr.Mehta, the contention does not survive. He, therefore, did not press the point further. Now, let us go to the merits of the matter. As seen above, there is difference in phraseology in old rules and in new rules. Under the old rules in the cause title itself it was mentioned that those rules would operate after deduction of 15% seats reserved for All India Entrance Examination as per the judgment of the Hon'ble Supreme Court and the remaining seats were described by Rule making authority as "State Quota Seats". There is substantial change in the new rules. In the cause title, there is no mention of deduction of 15% seats from the total seats to be reserved for All India Entrance Examination as per the judgment of the Hon'ble Supreme Court. Rule 2 of the new rules clearly states that seven per cent, fourteen percent and twenty seven per cent of the total seats shall be reserved for Schedule Caste, Schedule Tribe and SEBC respectively. The first question which arises for our consideration is whether such an action on the part of the State Government to reserve 48% seats for S/C, S/T and SEBC from the total seats is in consonance with the decision of the Hon'ble Supreme Court. Another important question is whether it is open to the State Government to reserve and/or earmark ten seats for Central Government nominees as may be nominated by Central Government at the First MBBS course at M.P.Shah Medical College, Jamnagar. A question may also arise as to whether such nomination would be "notwithstanding the rules relating to admission" in view of non-obstente clause in Rule 12. Now, let us consider few leading cases in the light of the submissions made before us. It was submitted on behalf of the petitioners that in giving admission to Medical Course the Hon'ble Supreme Court has clearly ruled that "merit and merit alone" should be the criterion. In this connection our attention was invited to Dr. Pradeep Jain & Ors. vs. Union of India and others, 1984(3) SCC 654. In that case certain seats were reserved for the residents of the State in Medical course. Dealing with the question, the Supreme court held that in case of admission to MBBS/BDS course, ultimate goal would be admission on All India basis. The Court then proceeded to observe that efforts must always be to select the best and most meritorious students for admission to Technical Institutions and Medical Colleges by providing equal opportunity to all citizens in the country. Exclusion of more meritorious students on the ground that they are not residents within the State would be likely to promote substandard candidates and bring about fall in medical competence, injurious in the long run to the very region. "It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation." The primary consideration in selection of candidates for admission to the medical colleges must, therefore, be merit. (Emphasis supplied) In Dr. Dinesh Kumar and another vs. Motilal Nehru Medical College, Allahabad and others, 1985(3) SCC 22, the Hon'ble Supreme Court, reiterated the above principle. Referring to the policy statement of the Government of India filed by the Attorney General, the Supreme Court noted that the view expressed in the said policy statement was to the effect that so far as admission to the Institution of Post Graduate colleges and professional Colleges are concerned, they should be entirely on the basis of All India subject to only constitutional reservation in favour of Schedule Caste and Schedule Tribe. The Apex Court also directed to make necessary arrangements for holding All India Entrance Examination for admission to MBBS course in future. It was made clear that the admission must be based on evaluation of the relative merits through an Entrance Examination which were open to all qualified candidates throughout the country. The Court stated "We hope and trust that at the next hearing of this writ petition, the Indian Medical Council will produce a well thoughtout scheme for holding an All-India Entrance Examination so that the necessary directions can be given by the Court in regard to the holding of such entrance examination well in time before the next academic year begins in June/July, 1985. Then came a leading case of Dr.Dineshkumar and others vs. Motilal Nehru Medical College , Allahabad and others, (1986) 3 SCC 727 (Dineshkumar II) .In Dineshkumar (II), pursuant to the direction given by the court earlier, a scheme submitted by the Medical Council of India and circulated amongst various State Governments and Deans of Medical Faculty and others was considered at length. The scheme was modified and redrafted and was submitted by the Government of India to the court for acceptance, which was considered by the Supreme Court. After taking into account objections of various State Governments and particularly states of Tamil Nadu and Karnataka regarding the quota for All India Entrance Examination