Case: Narayan Sharma  Vs. Pankaj Kr. Lehkar

2. The respondents 1-25 challenged in their writ petition the validity of Rules 4, 5 and 8(vii) of the Assam Medical Colleges (Regulation of the Admission to the Post-Graduate Courses) Rules, 1997 (hereinafter referred to as the `Rules) on several grounds. Respondents 26-42 had in their writ petition prayed for a direction to allow them to appear in the entrance examination for the Session 1996-97 and that they should be admitted only on the basis of the performance and merit in the entrance examination. They prayed for issue of a writ quashing the corrigendum issued by the Director of Medical Education in the Educational Notice dated 11.7.1997 whereby the candidates referred to in sub-rules (i), (ii), (iii) and (iv) of Rule 4 of the `Rules were exempted from appearing in the entrance examination3. The Government of Assam framed in February 1995 the Assam Medical Colleges (Regulation of Admission to Post-Graduate Courses) Rules, 1994 (hereinafter referred to as the `1994 Rules) under Article 166 of the Constitution of India regulating admissions to the Post-graduate courses in the medical colleges of Assam. Rule 5 of the said Rules provided for eligibility for competitive examination. Rule 7 provided for scheme of selection and provisions were made for reservation. In 1997, the earlier Rules were superseded and the `Rules were framed. The `Rules came into force w.e.f 1.7.1997. Rule 4 provides for reservation. Sub-rule (i) relates to All India quota seats being 25% of the total seats. Sub-rules (ii), (iii) and (iv) which are under challenge read as follows :4) Reservation in seats(ii) N.E.C. quota seats : Two seats in degree and two seats in diploma courses shall be reserved for the candidates recommended by the North Eastern Council(iii) Teachers Quota seats : Six seats shall be reserved for those teachers who are appointed on a regular basis on the recommendation of the Commission, in any of the Medical Colleges of Assam and who had at least 3 years teaching experience after regular appointment in the subject/discipline for which the seat is available provided that the requirement of teaching experience may be relaxed by a maximum of 1 year in case or pre and para clinical subjects, by the Government(iv) State Health Service quota seats : Twenty seats shall be reserved for the doctors appointed in the State Health Services on a regular basis on the recommendation of the Commission and who have worked for at least five years on a regular basis in any Health Centre/Institution which is not situated in a municipal areaSub-rules (v) and (vi) are in the following terms :(v) Following percentages of the seats available after excluding the seats reserved as referred to in (i), (ii), (iii) and (iv) above shall be reserved for Scheduled Castes, Scheduled Tribes and Castes OBC/MOBC candidates :(vi) On the date of commencement of these rules, the number of total seats in different disciplines in different colleges and their break up among the reserved categories as mentioned in sub-rule (i), (iv) and (v) above shall be as in Appendix-I. Changes, if any, in this regard shall be notified at the time of advertisement for admission by the GovernmentRule 5(i) and (ii) as corrected are as follows :5. Entrance examination and eligibility thereof:(i) An examination shall be conducted for the purpose of admission to the post-graduate Degree and Diploma courses in the Medical Colleges of Assam by the Gauhati University as per the scheme given at Appendix-II. Provided that the candidates referred to in sub-rule (i), (ii), (iii) and (iv) of Rule 4 shall not be required to appear in the Entrance Examination(ii) The University authorities shall prepare a merit list based on the sum total of the marks obtained in the Entrance Examination and the percentage of marks obtained in all the three MBBS examinations by each candidate and publish the same in the leading newspapers in the StateRule 8(vii) reads as follows :(vii) Any seat lying vacant under the category referred to Rule 4(i) shall be filled up by the Director, Medical Education, with the approval of the Government in accordance with the procedure of Rule 8(i) and 8(v) and after informing the Government of India of such vacancy :Provided, if there is any demand for such vacant seats by North Eastern Council for allotment of the same to the candidate from North Eastern States other than Assam, the Govt. may allot the seats to North Eastern Council as first priority.4. Respondents 1-25 challenged the validity of Rules mainly on the ground that for Post-graduate courses, there could be no reservation and that at any rate, the reservations provided under sub-rules (ii), (iii) and (iv) of Rule 4 are arbitrary and uncanalised. It was also their contention that there was no justification whatever for exempting the persons covered by those sub-rules from writing the entrance examination. The grievance of respondents 26-42 was that the doctors who are in service should not be exempted from writing the entrance examination. According to them, the merit of such candidate should be decided only on the basis of performance in entrance examination. They are doctors in service and they claimed to have completed more than five years service in rural areas. They challenged the Rule to the extent to which it exempted the in-service doctors from appearing in the entrance examination5. The State of Assam filed a counter-affidavit in Civil Rule No. 3493/97 only. There is no counter-affidavit in the other writ petition filed by respondents 26-42. As pointed out by the High Court repeatedly in its judgment, even the counter-affidavit filed in Civil Rule No. 3493/97 was unsatisfactory as the State Government did not choose to deal with the contentions raised by the writ petitioners properly and did not choose to place the relevant facts and particulars before the Court. In particular, the counter-affidavit filed by the State Government has not dealt with the contentions of the writ petitioners that the corrigendum issued by the Director, Medical Education was in contravention of the Rules of Executive Business. The State Government did not also set out the relevant particulars for justifying reservation for candidates recommended by the Noth-Eastern Council6. The High Court heard both the writ petitions and rendered a common judgment whereby it struck down sub-rules (ii), (iii) & (iv) of Rule 4 as well as Rules 5(i) and 8(vii). The High Court has opined that merit should be the sole criterion for admission to Post-graduate medical courses subject to the reservation permitted by the Constitution. Consequently, the High Court allowed both the writ petitions.7. The appellants in Civil appeal Nos. 5342-43/98 were not parties in either of the writ petitions. They are aggrieved by the judgment of the High Court as they are affected by the quashing of Rule 4(iii) of the Rules. They applied for permission to file Special Leave Petition in this Court and the same was granted by order dated 27.10.1998 when leave was granted in all the Special Leave Petitions. The State of Assam has filed Civil Appeal Nos. 5344-45/98. The Petitioner Nos. 1-6, 9, 10, 12-14 in Civil Rule No. 3544/97 are the appellants in Civil appeal No. 5246/98 while the other writ petitioners are shown as respondents 4-9 in the said appeal.

Reasoning:
13. Thus, Article 15(4) provides an exception to Article 15(1) and 29(2) enabling the State to make a special provision for the advancement of socially and educationally backward classes or for the Scheduled Castes and the Scheduled Tribes.24. The following principles emerge from the above rulings :(a) A provision for reservation must be within reasonable limits(b) There can be a reasonable classification based on ineligible differentia for the purpose of Articles 15(1), 15(4) and 29(2)(c) There can be reservation for persons belonging to areas which are socially and educationally backward(d) A rural area is to a class by itself and cannot be considered to be socially and educationally backward merely because it is a rural area(e) Admission to post-graduate courses should be strictly based on merit(f) The merits of the candidates seeking admission to higher educational courses shall be judged by uniform standard and for that purpose holding an entrance examination is the best method(g) There shall be no dilution of standards in higher educational courses and in particular, post-graduate courses.Rule 5(i) provides that the candidates referred to in the aforesaid sub-rules shall not be required to appear in the entrance examination. The challenge in the writ petitions filed before the High Court was both with regard to the reservation and with reference to the exemption of those candidates from appearing in the entrance examination. The High Court has quashed both the provisions. In our opinion, the two aspects of the matter have to be considered separately as different considerations arise. They are not inter-dependent. In fact, in the latest judgment of the Constitution Bench referred to above, namely, Dr. Preeti Srivastava (supra), the question of reservation was left open while the Bench dealt with only the question of prescription of qualifying marks in the common entrance examination.26. Reservation is provided in Rule 4. Sub-rule (i) pertains to All India quota seats. That is not in dispute in the present case. Sub-rule (ii) provides for NEC quota seats. Under that sub-rule, 2 seats in Degree and 2 seats in Diploma courses shall be reserved for the candidates recommended by the NEC. The provision as it reads, does not contain any guidelines on the basis of which recommendation could be made by NEC. Obviously, the matter is left entirely to the discretion of the NEC. On the face of it, the provision appears to be arbitrary and unconstitutional. The contention of the State Government is that the NEC is a statutory body created under the North Eastern Council Act, 1971 to oversee the coordinated development of 7 States in the North Eastern region of the country. The Council consists of the Governors and Chief Ministers of 7 States in the North Eastern region, namely, Assam, Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The Council is an advisory body which discusses and makes recommendations with regard to matters of common interest in the field of economic and social planning of the said Stats. The Council has taken up various developmental schemes for improving 3 medical colleges in the State of Assam at Dibrugarh, Gauhati and Silchar. Apart from the 3 colleges, there is only one medical college in Manipur and other States in the North Eastern region do not have any medical college. The quota is meant for 5 States, namely, State of Arunachal Pradesh, Meghalaya, Mizoram, Nagaland and Tripura which do not have any medical college. As such, students of these States are handicapped in getting medical education. The contention of the State Government is that the students of the said States form a class by themselves and it is a valid classification.27. In the writ petition before the High Court, the petitioners had challenged reservation under the sub-rule expressly alleging that it is a device just to keep seats in the hands of the Executive to be allotted arbitrarily and whimsically. In the counter-affidavit filed by the State Government in the writ petition, no attempt was made to place relevant particulars before the Court in justification of the said reservation. Excepting a vague statement in paragraph 18 of the counter-affidavit that the State of Assam has the responsibility to provide assistance to the neighbouring States in the development of their medical manpower, there is nothing in the counter affidavit which could enable the Court to uphold the reservation. Having been utterly negligent before the High Court, the State Government has made an attempt in this Court by setting out certain particulars in the grounds of appeal. In ground (C) in the Special leave petition, it is stated that 5 of the 7 States in the North Eastern region do not have medical colleges and only Assam has got 3 medical colleges apart from 1 in Manipur and, therefore, the provision for reservation is justified. It is unfortunate that the State Government has not chosen to help the Court by placing the relevant particulars in support of the reservation. It is, however, clear from the available materials that the present case is similar to the one dealt with in Chitra Ghosh & Another v. Union of India & Others, 1970(1) S.C.R. 413 wherein the Constitution Bench pointed out that provision for sons/daughters of Union Territories of Himachal Pradesh, Tripura, Manipur, Naga Hills, N.E.F.A. and Andaman was a valid classification in view of the fact that the Union Territories referred to above were backward areas with the exception of Himachal Pradesh as they do not have medical college of their own. A perusal of the North Eastern Council Act, 1971 shows that the functions of the Council include making of recommendations with regard to any matter of common interest in the field of economic and social planning. There is absolutely no doubt that the candidates belonging to the 5 States of North Eastern region where there is no medical college form a separate class and a reasonable provision for them reserving a few seats in the medical courses is not violative of any of the provisions of the Constitution. Here we uphold the reservation of 4 seats under N.E.C. quota.27. In the writ petition before the High Court, the petitioners had challenged reservation under the sub-rule expressly alleging that it is a device just to keep seats in the hands of the Executive to be allotted arbitrarily and whimsically. In the counter-affidavit filed by the State Government in the writ petition, no attempt was made to place relevant particulars before the Court in justification of the said reservation. Excepting a vague statement in paragraph 18 of the counter-affidavit that the State of Assam has the responsibility to provide assistance to the neighbouring States in the development of their medical manpower, there is nothing in the counter affidavit which could enable the Court to uphold the reservation. Having been utterly negligent before the High Court, the State Government has made an attempt in this Court by setting out certain particulars in the grounds of appeal. In ground (C) in the Special leave petition, it is stated that 5 of the 7 States in the North Eastern region do not have medical colleges and only Assam has got 3 medical colleges apart from 1 in Manipur and, therefore, the provision for reservation is justified. It is unfortunate that the State Government has not chosen to help the Court by placing the relevant particulars in support of the reservation. It is, however, clear from the available materials that the present case is similar to the one dealt with in Chitra Ghosh & Another v. Union of India & Others, 1970(1) S.C.R. 413 wherein the Constitution Bench pointed out that provision for sons/daughters of Union Territories of Himachal Pradesh, Tripura, Manipur, Naga Hills, N.E.F.A. and Andaman was a valid classification in view of the fact that the Union Territories referred to above were backward areas with the exception of Himachal Pradesh as they do not have medical college of their own. A perusal of the North Eastern Council Act, 1971 shows that the functions of the Council include making of recommendations with regard to any matter of common interest in the field of economic and social planning. There is absolutely no doubt that the candidates belonging to the 5 States of North Eastern region where there is no medical college form a separate class and a reasonable provision for them reserving a few seats in the medical courses is not violative of any of the provisions of the Constitution. Here we uphold the reservation of 4 seats under N.E.C. quota.Rule 5(i) provides that the candidates referred to in the aforesaid sub-rules shall not be required to appear in the entrance examination. The challenge in the writ petitions filed before the High Court was both with regard to the reservation and with reference to the exemption of those candidates from appearing in the entrance examination. The High Court has quashed both the provisions. In our opinion, the two aspects of the matter have to be considered separately as different considerations arise. They are not inter-dependent. In fact, in the latest judgment of the Constitution Bench referred to above, namely, Dr. Preeti Srivastava (supra), the question of reservation was left open while the Bench dealt with only the question of prescription of qualifying marks in the common entrance examination.26. Reservation is provided in Rule 4. Sub-rule (i) pertains to All India quota seats. That is not in dispute in the present case. Sub-rule (ii) provides for NEC quota seats. Under that sub-rule, 2 seats in Degree and 2 seats in Diploma courses shall be reserved for the candidates recommended by the NEC. The provision as it reads, does not contain any guidelines on the basis of which recommendation could be made by NEC. Obviously, the matter is left entirely to the discretion of the NEC. On the face of it, the provision appears to be arbitrary and unconstitutional. The contention of the State Government is that the NEC is a statutory body created under the North Eastern Council Act, 1971 to oversee the coordinated development of 7 States in the North Eastern region of the country. The Council consists of the Governors and Chief Ministers of 7 States in the North Eastern region, namely, Assam, Arunachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The Council is an advisory body which discusses and makes recommendations with regard to matters of common interest in the field of economic and social planning of the said Stats. The Council has taken up various developmental schemes for improving 3 medical colleges in the State of Assam at Dibrugarh, Gauhati and Silchar. Apart from the 3 colleges, there is only one medical college in Manipur and other States in the North Eastern region do not have any medical college. The quota is meant for 5 States, namely, State of Arunachal Pradesh, Meghalaya, Mizoram, Nagaland and Tripura which do not have any medical college. As such, students of these States are handicapped in getting medical education. The contention of the State Government is that the students of the said States form a class by themselves and it is a valid classification.27. In the writ petition before the High Court, the petitioners had challenged reservation under the sub-rule expressly alleging that it is a device just to keep seats in the hands of the Executive to be allotted arbitrarily and whimsically. In the counter-affidavit filed by the State Government in the writ petition, no attempt was made to place relevant particulars before the Court in justification of the said reservation. Excepting a vague statement in paragraph 18 of the counter-affidavit that the State of Assam has the responsibility to provide assistance to the neighbouring States in the development of their medical manpower, there is nothing in the counter affidavit which could enable the Court to uphold the reservation. Having been utterly negligent before the High Court, the State Government has made an attempt in this Court by setting out certain particulars in the grounds of appeal. In ground (C) in the Special leave petition, it is stated that 5 of the 7 States in the North Eastern region do not have medical colleges and only Assam has got 3 medical colleges apart from 1 in Manipur and, therefore, the provision for reservation is justified. It is unfortunate that the State Government has not chosen to help the Court by placing the relevant particulars in support of the reservation. It is, however, clear from the available materials that the present case is similar to the one dealt with in Chitra Ghosh & Another v. Union of India & Others, 1970(1) S.C.R. 413 wherein the Constitution Bench pointed out that provision for sons/daughters of Union Territories of Himachal Pradesh, Tripura, Manipur, Naga Hills, N.E.F.A. and Andaman was a valid classification in view of the fact that the Union Territories referred to above were backward areas with the exception of Himachal Pradesh as they do not have medical college of their own. A perusal of the North Eastern Council Act, 1971 shows that the functions of the Council include making of recommendations with regard to any matter of common interest in the field of economic and social planning. There is absolutely no doubt that the candidates belonging to the 5 States of North Eastern region where there is no medical college form a separate class and a reasonable provision for them reserving a few seats in the medical courses is not violative of any of the provisions of the Constitution. Here we uphold the reservation of 4 seats under N.E.C. quota.28. Sub-rule (iii) of Rule 4 provides for 6 seats to be reserved for those teachers who are appointed on regular basis on the recommendation of the Commission in any of the medical colleges of Assam who had atleast 3 years teaching experience after regular appointment in the subject/discipline for which the seat is available provided that the requirement of teaching experience is relaxed by a maximum of one year in case of pre and para clinical subjects by the Government. In the writ petition, this sub-rule was challenged in paragraph 32-A on the ground that there are no guidelines in regard to the reservation. It is also alleged that in the 1994 Rules, 6 seats reserved for teachers quota were shown separately but in the `Rules the seats reserved for teachers quota are included in general seats whereby some genuine and eligible candidates of general stream will be deprived of getting seats. In the counter affidavit filed by the State Government, it was stated that the demand in respect of upgrading the skills of the teachers of the medical colleges varied in the matter of medical discipline concerned from year to year and that it was difficult to reserve seats in particular discipline and, therefore, the teachers quota was included in the general category and at the time of selection, the State Government could finalise the subjects in which it was necessary to provide seats for the teachers of the medical colleges. Here again, the contents of the counter-affidavit were not sufficient to justify the reservation. In the grounds of appeal in this Court, it is stated in ground (E) that as per the norms prescribed by Medical Council of India, Post-graduate qualification is mandatory for appointment of candidate to the rank of Assistant Professor and above and in some departments like Cardiology, Nephreology, Neuro Surgery etc., training in super-speciality is required along with M.D. or M.S. degree for the post of Assistant Professor or above. It is stated that the recruitment of the teaching faculty is done in the rank of Demonstrator and Registrar etc., for which only MBBS degree is necessary; acquiring of P.G. degree is a must for the teaching faculty in the interest of the institute and the students. It is further stated that there is dearth of qualified doctors for promotion to the rank of Assistant Professor and above in the para-clinical and non-clinical subjects like Anatomy, Pharmacology, SPM & F&SM, Micro-Biology etc., for which several posts could not be filled up in the medical colleges of Assam. As a result, the academic interest of the institutions was badly hampered. Thus the reservation is justified on the ground of institutional requirements. There cannot be any doubt that the teachers form a class by themselves and the classification is based on intelligible differntia having rational nexus to the object of the Rule. Hence we uphold the reservation of 6 seats under the Teachers quota.29. Under sub-rule (iv), reservation of 20 seats is made for doctors appointed in the State Health Services on a regular basis on the recommendation of the Commission and who have worked at least 5 years on regular basis in any health centre/institution which is not situated in the municipal area. The High Court has rightly pointed out that the Rule is worded in negative terms and not in positive terms.That was different from the present rule which provides for reservation for doctors who have worked in any health centre/institution which is not situated in a municipal area. No justification has been made by the State Government for changing the wording of the Rule or increasing the quota from 10 to 20. As rightly pointed out by the High Court, any place just outside a municipal town is one which is not situated in a municipal area and which will fall within the scope of sub-rule. The doctor working in an institution situated in a place immediately adjacent to but outside a municipal town will get the benefit of the rule while in practice, he will also get all the benefits available in the urban areas situated within the municipal limits. The rule does not require the doctor to serve in a remote rural area for getting the benefit of the rule. Even if the rule had provided for service in a rural area, it has been held, that the classification is not a valid one.have already referred to the judgment of this Court in State of U.P v. Pradip Tandon, 1975(1) SCC 267 where it was held that rural element did not make it a class and provision for rural areas could not be sustained on the ground that the rural areas represented socially and educationally backward class of citizens. The reasons given by this Court in Dinesh Kumar, 1986(3) SCC 727 in the passage quoted by us in para 19 supra are also applicable here. In the circumstances, we are in agreement with the view taken by the High Court and we uphold the quashing of sub-rule (iv) of Rule 4.30. We shall now advert to Rule 5(i) which exempts the candidates referred to in sub-rules (i), (ii), (iii) and (iv) of Rule 4 from appearing in the entrance examination. We are not concerned with sub-rule (i) of Rule 4 as stated already. With reference to the candidates referred to in sub-rule (ii) of Rule 4, there is no justification for exempting them from appearing in the entrance examination. As has been repeatedly held by this Court, the selection of candidates for Post-graduate courses should be based only on merit and it cannot be left to the arbitrary discretion of any administrative body. Though we have upheld reservation of 4 seats under NEC quota, we are of the opinion that such reservation can be provided only on the basis of merit which can be assessed by the performance of the candidates in the entrance examination. The NEC cannot choose any candidate according to its whims and fancies. The NEC has to recommend candidates only in accordance with the rank secured in the entrance examination.Hence, the provision in Rule 5(i) exempting the candidates referred to in sub-rule (ii) of Rule 4 from appearing in the entrance examination has been rightly struck down by the High Court and we uphold the same.31. As regards the teachers, there is no need for them to participate in the entrance examination as they have been constantly in touch with the subject/discipline for which reservation is made. The concept of entrance examination was evolved for the purpose of prescribing uniform standard for judging all the candidates. It has also been repeatedly emphasised by this Court that merit should be the criterion for admission to Post-graduate courses. Both the tests will be satisfied in the case of teachers who have been working in the medical colleges of Assam for the required number of years. Hence, there is no necessity for them to appear in the entrance examination. The rule in so far as it exempts the teachers from appearing in the entrance examination is valid. We differ from the view taken by the High Court and propose to allow the appeal in that regard.32. Insofar as the candidates referred to in sub-rule (iv) of Rule 4 are concerned, we have expressed our opinion that reservation for them is not valid. Consequently, the question of exempting them from appearing in the entrance examination does not arise. However, we wish to make it clear that even if for any reason, the reservation of seats under sub-rule (iv) of the State Health Service quota is upheld, the exemption of the candidates referred to in that sub-rule from appearing in the entrance examination is not valid. There is no earthly reason for exempting them from appearing in the entrance examination. In order to maintain the high standards required for admission to Post-graduate courses, those candidates should also be made to appear in the entrance examination and admission must be made only on the basis of merit.The High Court has struck down the entire Rule overlooking that the challenge is only to the proviso to the Rule and not the main part of the Rule. The reasons which we have given already for upholding the reservation of seats for candidates referred to in sub-rule (ii) of rule 4, will hold good for upholding the proviso to sub-rule (vii) of Rule 8. The proviso is only discretionary and not mandatory. Further it only provides for first priority being given to NEC. In the circumstances, we differ from the High Court and uphold the sub-rule34. In the view we have expressed above, it is unnecessary for us to consider the contention raised by the contesting respondents that the reservation under sub-rules (ii) to (iv) taken along with the reservation under sub-rule (v) of Rule 4 exceed 50% of the total number of seats after excluding the 25% under All India quota. Here again, the State Government has not come forward with a clear answer to the contention raised by the contesting respondents but we are not dealing with that question as it is unnecessary for the purpose of this case.