Case: YATINKUMAR JASUBHAI PATEL Vs. STATE OF GUJARAT

4. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 22.02.2017 passed by the Division Bench of the High Court of Gujarat in Special Civil Application No. 19918/2016, by which the Division Bench has dismissed the said writ petition upholding the vires of Rules 2, 3, 4.1 and 4.3 relating to admission to the Post Graduate Medical Courses framed by the Gujarat University providing that the preference shall be given to the candidates graduating from the Gujarat University (providing for ?Institutional Reservation?), the original writ petitioners have preferred the special leave petition/appeal. Thus, the original writ petitioners are challenging the ?Institutional Preference? in the Post Graduate Medical Courses.4.1 Writ Petition (C) No. 1479 of 2018 under Article 32 of the Constitution of India has been preferred by the petitioners also challenging the policy of ?Institutional Preference? for admission to the Post Graduate Medical Courses insofar as respondent no.3 – University of Delhi and respondent no.4 – Guru Gobind Singh Indraprastha University is concerned. Similar prayers are made in Writ Petition (C) No. 122/2018 and Writ Petition(C) No. 1142/2019 also challenging the policy of ?Institutional Preference? in the Post Graduate Medical Courses.4.2 For the sake of convenience, Civil Appeal arising from Special Leave Petition(C) No. 7003/2017 arising out of the impugned judgment and order dated 22.02.2017 passed by the High Court of Gujarat is treated and considered as a lead matter and the relevant rules of the Gujarat University relating to admission to the Post Graduate Medical Courses framed by the Gujarat University are considered.5. In exercise of powers under Section 39 read with Section 32 of the Gujarat University Act, 1949, the Gujarat University has framed the rules for the purpose of governing admission to Post Graduate Courses. The relevant Rules are Rules 2, 3, 4.1, 4.2 and 4.3, which read asAs per directive of Hon?ble Supreme Court of India, New Delhi, 50% of total available seats in Academic year in various post graduate degree and diploma courses in each subject in Government Institution/Colleges will be filled up as a All India Quota Seats as per All India 50% quota rank by competent authority. The remaining seats will be available for the candidates passing from Gujarat University in accordance with Rule 4.1. The student passing from other statutory Universities within Gujarat State will be considered as per their merit in accordance with Rule 4.3.3. Remaining 50% (or more) of total seats after Rule 2.0 (and Rule 2.1) in post graduate courses will be filled up by the ?Admission Committee? of University.4.0 Selection: Selection of candidates eligible under rule 1 for seats under rule 3.0 will be done category and status wise on the basis of merits as laid down herein further.4.1 Preference shall be given to candidates graduating from Gujarat University.4.2 Deleted.4.3 After the merit list prepared under Rule 4.1 is exhausted the candidates graduating from any other University located in Gujarat State will beAs per the aforesaid Rules, 50% of the total available seats in the academic year in various Post Graduate Degree and Diploma Courses in each subject in Government Institution/Colleges will be filled up as ?All India Quota Seats? by competent authority and the remaining seats will be filled up in accordance with Rule 4.1 of the Rules of the University. As per Rule 3 of the Rules, remaining 50% of the total seats in Post Graduate Courses will be filled up by the ?Admission Committee? of University. As per Rule 4.3 of the Rules, after merit list prepared under rule 4.1 is exhausted, candidates graduating from any other University located in Gujarat State will be considered.5.2 The original writ petitioners challenged the vires of the afore-stated Rules providing ?Institutional Preference? – giving preference to the candidates graduating from Gujarat University mainly on the ground that in view of introduction of the National Eligibility Entrance Test (hereinafter referred to as ‘NEET?) and the admissions are to be given solely on the basis of the merits and the marks obtained in the NEET, the Rules providing ?Institutional Preference? shall be violative of the Indian Medical Council Act, 1956 and the Post Graduate Medical Education Regulations, 2000 framed under the Indian Medical Council Act. That by the impugned judgment and order and after considering the decisions of this Court in the cases of Dr. Pradeep Jain v. Union of India reported in 1984 (3) SCC 654; and Saurabh Chaudri v. Union of India reported in 2003 (11) SCC 146     and after considering the scheme of the NEET (PG), the High Court has dismissed the said petition holding the ?Institutional Preference?. Hence, the present appeal challenging the policy of ?Institutional Preference? in the Post Graduate Medical Courses.

Reasoning: Thus, right from 1971 onwards till 2017, consistently this Court has approved and/or permitted the ?Institutional Preference? in the Post Graduate Medical Courses.However, it is the case on behalf of the petitioners that in view of the introduction of the NEET Scheme and in view of Section 10D of the MCI Act, by which admissions are to be given on the basis of the merit in the NEET, such an ?Institutional Preference? would not be permissible. It is required to be noted that introduction of the NEET has, as such, nothing to do with any preference/Institutional Preference, more particularly the ?Institutional Preference? as approved by this Court time and again. The purpose and object of the introduction of the NEET was to conduct a uniform entrance examination for all medical educational institutions at the under-graduate level or post- graduate level and admissions at the under-graduate level and post-graduate level are to be given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including the Gujarat University used to hold examination for post-graduate admission to medical courses and now instead of such tests by the Gujarat University/concerned universities, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralized admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to Post-Graduate and PG and Diploma Courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of the NEET, Section 10D of the MCI, Act has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to Post Graduate Courses are made providing for solely on the basis of the score secured by the candidates seeking admission based on centralized examination, i.e., NEET.10.4 Even while giving admissions in the State quota/institutional reservation quota, still the admissions are required to be given on the basis of the merits determined on the basis of the NEET examination results. Under the circumstances, introduction of the NEET Scheme, as such, has nothing to do with the ?Institutional Preference?. Therefore, the change by introduction of the NEET Scheme shall not affect the Institutional Preference/Reservation as approved by this Court from time to time in catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the petitioners cannot be permitted to re-agitate and/or re-open the issue with respect to Institutional Preference which has been approved and settled by this Court in catena of decisions, more particularly the decisions referred to hereinabove.11. Now so far as the submission on behalf of the petitioners that if the 50% seats are reserved for State quota and if institutional preference/reservation is permitted to the extent of 50% of the total number of open seats, in that case, not a single seat in the State quota shall be available and therefore the percentage of Institutional Preference may be reduced to the extent of 25% or so is concerned, at the outset, it is required to be noted that as such the Institutional Preference to the extent of 50% of the total number of open seats has been approved by this Court in catena of decisions, more particularly the decisions referred to hereinabove. The decision of this Court in the case of Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional Preference has been distinguished by a Constitution Bench of this Court in the case of Saurabh Chaudri(supra). Therefore, once the Institutional Preference to the extent of 50% of the total number of open seats has held to be permissible, in that case, thereafter it will be for the appropriate authority/State to consider how much percentage seats are to be reserved for Institutional Preference/Reservation. It will be in the realm of a policy decision and this Court cannot substitute the same, unless it is held to be arbitrary and/or mala fide and/or not permissible. As observed hereinabove, a five Judge Bench of this Court in the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the post graduate medical courses to the extent of 50% of the total number of open seats.12. Therefore, for the reasons stated above and considering the decisions of this Court in the cases of Dr. Pradeep Jain (supra); a Constitution Bench decision of this Court in the case of Saurabh Chaudri (supra); and Saurabh Dwivedi (supra), Institutional Preference to the extent of 50% is approved and it is observed and held that introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation. Such a regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even otherwise, as observed hereinabove, even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only.