STATE OF RAJASTHAN & ANR.

A v.

DR. ASHOK KUMAR GUPTA & ORS.

OCTOBER 11, 1988

(M.P. THAKKAR AND B.C. RAY, JJ.] B

Constitution of India, 1950-Article 14--'Equality doctrine'- Ordinance No. 278-E(d)(ii)-Of University of Rajasthan Ordinunce- Held void-Admission to P.G. Course in Medical Colleges in Rajasthan-5% marks addition to aggregate marks obtained in competitive examination in case of students who obtain MBBS degree of C Rajasthan University-Offends 'equality doctrine'.

Professional Colleges-Admission to: Ordinance of University of Rajasthan Ordinance No. 278-E(d)(ii)-Admission to P.G. Course in the five Medical Colleges in State of Rajasthan-Aadition of 5% marks to aggregate marks in the competitive examination by way of D institutional preference if candidate has obtained MBBS degree from the same Medical College for which selection sought-Held offends 'equality doctrine' and Constitutionally void.

The respondents had songht admission to post-gradnate courses in the five medical colleges affiliated to the Rajasthan University E through a competitive examination which was common for all these five colleges. They were not able to secure admission in any discipline even though they had secured more marks as compared to the successful candidates who had been granted additional marks on the basis of Ordinance 278-E(d)(ii) of the Ordinance of University of Rajasthan.

U oder this proviso the successful candidates were entitled to a uniform F addition of 5% marks in the percentage of aggregate marks if they had passed the final M.B.B.S. examination from the same institution for which selection was hiing made. The respondents challenged this provision.as violative of the equality principle enshrined in Article 14 of the Constitution. The High Court struck down as unconstitutional the impugned provision embodied in note (d)(ii) of Ordinance 278-E.

Dismissing the appeal, it was,

HELD: (l) The aggregate marks for all subjects put together is

2750. 5% of these makrs would work out to 137.5 marks. In the result, a candidate from the same college will have an advantage of 137 .5 marks H

A over candidates from other colleges. In medical courses where there is intense competition and candidates run neck to neck so often with a differe'lce of a mark or two, a difference of 137 .S marks by way of college-wise institutional preference would virtually make a mockery of the merit criteria. [498C-D)

(2) This factor coupled with other factors leave no room for doubt that while on the face of it the impugned rule appears to extend or accord equal treatment of 5% welghtage to the students of each of the five Medical College, In actual operation It brings about oppressive and obnoxious Inequality. Once the veil of apparent equality is pierced, the ugly inequality stares one in the eyes which are opened to the offensive C 'reality'. [502BCl

(3) Admission to post-graduate courses at SMS College at Jaipur b.!ng considered as most advantageous, a candidate from Jaipur College will get admission in P.G. Course at Jaipur In preference to the other more meritorious candldntes merely because he pl!llscd the D M.B.B.S. examination at Jaipur even though all of them secured their marks at the lndentical competitive examination to all the Colleges. It needs no argument that Article 14 ls seriously shattered. [4980)

( 4) What may 'appear' to be equal treatment accorded in obeisance to the equality doctrine embodied in Article 14 of the Con E stitution in its application In 'reality' may result In denial of equality and may accordingly be liable to be condemned for defying the equality doctrine. [495B]

(5) Such being the position tbe constitutional vlllldlty of the impugned rule cannot be sustained. It has to be buried uncere- F moniously as uncons.tltutional being violate of Art, 14 of the Constltu tion of India. [S02C-D]

Nidamarti Mahesh Kumar v. State of Maharashtra, AIR 80 SC 1362-(1980) 3 SCR 1302, referred to.

G CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2461·2463 of 1987.

From the Judgment and Order dated 7 .8.1987 of the Rajasthan High Court in D.B.C. Writ Petition Nos. 1374, 1387 and 1453of1987.

H Badri Das Sharma for the Appellants.

---'t-

Tapas Ray "and S.K. Jain for the Respondents.

The Judgment of the Court was delivered by

THAKKAR, J. What may 'appear' to be equal treatment

accoded in obeisance to the equality doctrine embodied in Article 14 of the Constitution in its application in 'reality' may result in denial of B equality and may accordingly be liable to be condemned for defying the equality doctrine.This has been illustrated by the provision embodied in Ordinance No. 278-E (d)(ii) of the Ordinance of University of Rajasthan which provides for uniform addition of 5% marks to the students applying for admission to the post-graduate course in any one of the five Medical Colleges provided the student has passed c his final MBBS Examination from the College to which admission in post-graduate course is sought. The said provision has been held to be unconstitutional and in our opinion the conclusion reached by the High Court is right though the reasoning which has commended itself to this Court Is somewhat different.

D Three Writ Petitions were instituted in the Rajasthan High Court, (Jaipur Bench) by the Writ Petitioners who sought admission to post-graduate courses in the Colleges affiliated to the Rajastban University. There arc five such Medical Colleges at five different centres in Rajastban, viz. Jaipur, Bikaner, Udaipur, Jodbpur and Ajmer. It appears that for the purpose of securing admission to these Colleges E the applicants seeking admission have to appear at a competitive examination called PMG, The passing of this Examination is a precondition for securing admission to the PMG course in any one of the aforesaid five Colleges in Rajasthan. The PMG competitive examination is 'common' for all the five Medical Colleges. There is one syllabus and one. combined examination is conducted by the University, The F successful candidates arc entitled to addition of 5% marks in the percentage of aggregate marks by way of institutional preference if the concerned candidates had passed the final MBBS Examination con dµcted by the Rajastban University. A further addition of 5% of marks by way of institutional preference in the sense of preference dependent on the particular Medical College at which the concerned G candidate bas passed his final MBBS examination is also provided. It is this college-based institutional preference which has given rise to the present controversy. Such preference is rooted in the impugned provi- J sion nameliOrdinance 278-E(d) which deserves to be quoted:

"(d) The total marks so obtained shall be converted into H

percentage. The percentage so obtained shall be increased as follows:

(i) By 5 if the applicant passed the final M.B.B.S. Examination from the Rajasthall University.

(ii) By another 5 if the applicant passed the Final M.B.B.S. Examination from the same institution for which selections are being made."

The Writ Petitioners contended that this provision violated the equality principle enshrined in Article 14 of the Constitution of India and was

accord1ngly unconstitutional. It appears that while each of the five C Medical Colleges in Rajasthan is conducting post-graduate courses in specified specialities and super specialities, the Doctors who have graduated from all the Medical Colleges in Rajasthan by and large consider admission to post-graduate courses at SMS College at Jaipur as most advantageous. In other words securing admission in post- D graduate course at Jaipur in SMS College is considered to lie an achievement and the courses at Jaipur are the most sought after cou'rses. The reasons underlying this keenness to secure admission in Jaipur College are understandable inasmuch as:

(i) there are many more seats available for PG courses; and

(ii) there are many more specialities available at the Jaipur Col- .!ege as compared to other Colleges;

A Tabular statement reflecting the positions of seats in the five Medical Colleges may best scrutinized: -------------------------------

Subject

S.M.S. S.N.

R.N.T. S.P.

J.L.N.

Total Medical Medical Medical Medical Medical College College College College College Jaipur Jodhpur Udaipur Bikaner Ajmer

1. Genl. surgery 17(4) 10(2) 8(2) 8(2) 8(2) 51(12)

2. Genl. Medicines 21(5) 9(2) 10(3) 10(2) 11(3) 61(15)

3. T.B. & C.D. 2(1) 1(0) 1(0) 0(0) 0(0) 4(1)

4. Skin & V.D. 2(0) 1(1) 0(0) 0(0) 0(0) 3(1)

~ -~;:::-'<"' -"-<-: .;.,: -·--

~-~-~

5. Psychiatry 3(1) 0(0) 0(0) 11(0) 0(0) 4(1) A i

6. Gyne. & Obst. 18(4) 8(2) 8(2) 8(2) 8(2) 50(12)

7. Paed. Medicine 11(3) 5(1) 4(1) 4(1) 4(1) 28(7)

8. Anaesthesia 11(3) 4(1) 4(1) 4(1) 4(1) 27(7)

9. Radio-Diagnosis 2(0) 2(1) 2(1) 2(1) 2(0) 10(3) B

10. Radio-Therapy 1(1) 0(0) 0(0) 1(0) 0(0) 2(1)

11. E.N.T. 2(0) 1(1) 1(0) 1(0) 1(1) 6(2)

12. Opthalmology 6(1) 2(0) 2(1) 2(0) 2(1) 14(3)

13. Orthopaedics 8(2) 2(1) 2(0) 2(1) 2(0) 16(4) 't

14. Pathology 4(1) 1(0) 1(0) 1(1) 1(0) 8(2)

15. Microbiology 2(1) 1(0) 1(1) 1(0)

~(O) 6(2)

16. P.S.M. 2(0) 1(0) 1(0) l(l) 1(0) 6(1)

17. Physical Medicine 1(0) 0(0) 0(0) 0(0) 0(0) 1(0)

& Rehabilitation

18. Anatomy 1(1) 0(0) 0(0) 0(0) 0(0) '1(1)

19. Physiology 0(0) 1(0) 0(0) 0(0) 0(0) 1(0)

20. Bio-Chemistry 0(0) 0(0) 1(0) 0(0) '0(0) 1(0) E

21. Pharmocology 0(0) 0(0) 0(0) 1(0) 0(0) 1(0)

114(28) 49( 12) 46( 12) 47( 12) tl5(l1) 301(75)

B. DIPLOMA I II

III

'IV y VI

D.A. 6(1) 0 6(2) 6(1) 'O '.18(>l)

DCH. 6(2) 0 6(1) '6(2) 0 i8(5)

D.P.H. 6(1) 0 0 0 0 6('1) f6

D.G.0. 6(2) o 6(1) (0) 0 12(3)

D.M.R.D. 6(2) 0 (0) (0) 0 6(2)

Tot~!: 30(8) tJ 18(4) 12(3) 0 •OO(li:S) fH

Note: The figures shown in bracket are the seats reserved for being filled up on all India basis in the year 1988.

The facility for the specialities from serial No. 18 to 21 i.e.

Anatomy, Physiology, Bio-Chemistry and Pharmacology, are available in all the five Medical Colleges in Rajasthan.

But from the year 1988, the facility in these specialities will be provided by rotation.

Now it has to be realized that the aggregate marks for all subjects put together is 2750. 5% of these marks would work out to 137 .5 marks. In the result a candidate from the same College wiJI have an advantage of 137 .5 marks over candidates from other Colleges. In Medical courses where there is intense competition and candidates run neck to neck so often with a difference of a mark or two, a difference of 137 .5 marks by way of College-wise institutional preference would virtually make a mockery of the merit criteria. A candidate, say from Jaipur College, who secures 137 .5 marks less than a candidate from Jodhpur, Bikancr, D Udalpur or Ajmer wJU get admission In P.O. Course at Jaipur In pre ference to the other more meritorious candidates merely because he passed the M.B.B.S. Examination at Jaipur even though all of them secured their marks at the identical competitive examination to all the

Collegs. It needs no argument that Art. 14 is seriously shattered.

E Statements filed by the parties in this Court further go to show that some disciplines are available only in particular Colleges and not in other Colleges. For instance:

. 1. M.D. in 'Physical Medicine and Rehabilitation' is available

only in S.M.S. College, Jaipur. ·

2. 'T.B. and£:.D.' is not available in Ajmer Medical College.

3. 'Skin and V.D.' is not available in Udaipur and Ajmer Colleges. o

4. 'Psychiatry' is available only in Jaipur and Bikaner Colleges and not in others.

5. M.D. in 'Radio therapy' is available only in Jaipur and Bikaner and not in other Colleges.

H An analysis of the data reflected in the aforesaid statement and

;:: ;;

its impact on the fortunes of the students aspiring for the Post A Graduate courses reveal:

(i) that a student passing his final degree examination in MBBS from Jaipur would steal a march over the students passing from the remaining four Colleges for with 5% weightage a student from Jaipur would have. a far better chance of securing admission B in a post-graduate C(, Jurse at Jaipur inasmuch as there are as many . as 114 seats at the Jaipur Medical College as compared to the number of seats ranging between 45 and 49 in each of the remaining Medical Colleges regardless of the superior merits of students from other colleges.

(ii) a student passing his final degree examination in M.B.B, S. from Jaipur aspiring for admission in P.O. cour11e would have a

far better chance of securing admission in the sttbject of his choice visavls students from all other Colleges inasmuch as in each subject the number of scats in the Jaipur College is much D larger .than in any of the remaining Colleges regardless of his superior merits.

(iii) a candidate from any of the four Colleges other than Jaipur College would have practically no chance of securing admission in certain disciplines such as: E

(a) Physical Medicine and Rehabilitation,

(b) Anatomy, (subject to rotation after 1988) ( c) Radio therapy, and ( d) Psychiatry et.c.

regardless of his superior merits.

(iv) A candidate with a special aptitude for a particular discipline would not get admission in PG course in that discipline unless he belongs to a College in which the particular discipline is G available regardless of his superior merits.

The merit position in relation to the students would also undergo a, vast change as is revealed by the tabular statement reproduced hereunder:

500 SUPREME COURT REPOR'l'S !1988] Supp. 3 S.C.R.

MER>tlt:P-OSll'IO'NfOF RESPONDENTS WimAND w:J:THOUT

'COLLEGE-WISE' INStrronoNAL WEIGHrAGE:

SI. No. Name Jvforit Position with 5%

- without 5% Institutional Institutional 'Weightage weightage

SI.No. Name Merit 'Position 1.

Dr. AshOk'Kuma:rGupta '207 171

Dr. 1Rajeev A'huja 226 209

Dr. Ashwani Kumar Singh 201 162

Dr. lshwar Das 177 131

5. 'Dr. Ratan Lal tiwari 215 181

Dr. Madhu Sanwal 97 45

The fortunes of the candidates would thusundergo a sea change.

Those who are more meritorious having secured more aggregate •ma:rb'thanotherswould not get admission to PG courses anywhere in Rajlisthan, whereas those with lesser -merits would get admission by reason of the 5% College-wise preference. To take the case of the iE appellilnts, they having secured aggregate marks of 1650, 1638, 1624, 161'7 and 1613 have not been able to secure admission in any discipline.

As against this candidates have secured much less marks already >Secured <afirtiission in one or the other of the 5 Medical Colleges. In order :to <illustrate 'the 'point, the tabular statements reproduced hereilibei11w maybe•glanced at: ' '.j;

Medicl'Cdllege Aggregate mat ks of 'Discipline allotted 'last candidate

Joahpur 1548 M.D. (Anaesthesia)

I(; • Udliipur 1626 M.S. (Surgery)

faipilr 1602 M.D. (Anaesthesia)

Bikaner 1622 M.D. (Microbiology)

If.I 'Statement'showing list of candidates, less meritorious (that the appel- 11a1its)1Who have'Secured-admission:

College Aggregate marks Discipline allotted A.

Jodhpur 1610,

M.D. 1605 (Medicine)

B 1601

M.D. (Skin & V.D.)

1606, 1595,

M.S. 1590 (Surgery) c

1576,

M.S. 1577 (Orthopaedics)

1582, 1570,

M.D.

D 1548 (Anaesthesia)

M.D. (Medicine)

1637' 1635, 1626

M.D.

E (InTB&CD,)

Psychiatry (Skin & V.D.)

.1629, 1610,

M.S .

F 1604 (S\lrgery)

M.S. (Orthopaedics)

1617, 1603, 1602

M:.D.

G (Anaesthesia)

What emerges from the above statements is that wll* one of the appellants who has secured 1650 marks in the common competitive examination has not been able to secure admissioIJ i11 P.O. C911rse in H

A any College in Rajasthan, a candidate who secured about 100 marks less ( 1548 marks) in the very same examlnati<>n has been able to secure admission, the rest of the appellants have not been able to secure admission anywhere though they have demonstrably secured more marks and are more meritorious than the aforesaid 22 persons. This analysis exposes the extremely unfair and unjust impact of the B impugned rule. This factor coupled with the four factors highlighted earlier leave no room for doubt that while on the face of it the impugned rule appears to extend or accord equal treatment of 5% weightage to the students of each of the five Medical Colleges, in actual operation it brings about oppressive and obnoxious inequality.

Once the veil of 'apparent' equality is pierced, the ugly inequality c stares one in the eyes which are opened to the offensive 'reality'. Such

being the position the constitutional validity of the impugned rule cannot be sustained. It has to be buried unceremoniously as uncon stitutional being violate of Art. J4 of the Constitution of India.

The High Court has struck down as unconstitutional the impugned D provision embodied in note (d)(ii) of Ordinance 278-E mainly on the ground that coupled with the institutional preference accorded under clause (i) it would virtually amount tci making 100% reservation in favour of the students of the Rajasthan University in the sense that no other student of any other University would have any reasonable chance to secure admission to these courses, relying in the principle E enunciated in Nidamarti Mahesh Kumar v. State of Maharashtra.&

Ors., AIR 1980 SC 1362( 1980) 3 SCR 1302, the reasoning is reflected in the following passage extracted from paragraph 25 of the judgment under appeal:

"Thus after having given 5% weightage on the ground of institutional preference that a candidate has passed his final MBBS Examination from the University of Rajasthan, further 5% weightage on the ground that he has passed his MBBS final examination from the Medical College where he seeks admission, in Post Graduate course, is unreaso;=-- able and arbitrary and does not stand the touchstone of Article 14 of the Constitution. If 10% weightage is given as aforesaid it will come to 275 marks and with this increase in marks no candidate from University other than University of Rajasthan can get admission to Post Graduate course in any one of the medical colleges. It is against the equality clause as it amounts to cent per cent reservation as 10% weightage in admission to Post Graduate course to a student, 5% weightage on the University basis and 5% on the institutional basis, amounts to total exclusion of candidates of other Universities. We have already referred to the admissions for the years 1986 and 1987 and at the cost of repetition we may say that a look at Schedules 'A' and 'B' regarding admissions in SMS Medical College, Jaipur in Post Graduate courses for the years 1986 and 1987 respectively will show that not a single candidate from the University other than University of Rajasthan could seek admission.''

Since however a number of seats are now (since 1988) reserved in each College for candidates on an All India basis as disclosed by the tabular statements reproduced in the earlier part of this judgment, we prefer to rest our decision on the reasoning indicated earlier. These are the reasons which impelled us to pass the final order as under on July 21, 1988:

"ORDER

The appeals fail and are dismissed.

Ordinance 278-E(d)(ii) of the Ordinances of the University of Rajasthan is declared as unconstitutional and quashed.

III

Admissions to the Post Graduate Degre<! Courses in all the Medical Colleges at all centres in Rajasthan shall hereafter be made inaccordance with the decision of the High Court rendered on August 7, 1987 in the Writ Petitions giving rise to the present appeals which is hereby confirmed.

TV Future vacancies including unfilled vacancies to the Post Graduate Degree Courses in all the Medical Colleges in Rajasthan shall hereafter be filled on the basis that Ordinance 278-E(d)(ii) is invalid provided however that those students who have been admitted to Post Graduate

~ ., .

R.S.S.

courses pursuant to the interim order of this Court will not be disturbed. and will be permitted to complete their

COUfSf'.S.

Ui; ifilled. vacancies may be filled in accordance with and in the light of this order even at this juncture if it can be so done.

Reasons will follow.

VII

'fhcore will be no order as to costs."

Appeal dismissed.