Gujarat High Court

Karmasad Medical Association vs State Of Gujarat on 4 February, 2000

Equivalent citations: (2000)2GLR1684

Author:
J.M. Panchal

Bench:
J.M. Panchal
,
A.M. Kapadia

JUDGMENT

J.M. Panchal, J.

1. 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 : heda. 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. Ravine, 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 TamilNadu 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 1989 SC 177, (8) Municipal Corporation of Greater Bombay and others v. Thukral Anjali Deokumar and others
,
AIR 1989 SC 1194, (9) U.P. Junior Doctors' Action Committee and others vs. Dr. B. Sheetal Nandwani and others
,
AIR 1992 SC 671, (10) Mohan Bir Singh Chawla v. Punjab University, Chandigarh and another
, AIR 1997 SC 788, (11) Dr. Preeti Srivastava and another v. State of Madhy Pradesh and others,
AIR 1999 SC 2894, (12) Dr. Narayan Sharma and another v. Dr. Pankaj Kr. Lehkar and another
, AIR 2000 SC 72, and (13) Dr. Mehta Roopaben Ishwarbhai and others v. State of Gujarat and others, Special Civil Application No. 44 of 1976, decided on March 24, 1976 by Division Bench comprising J.B. Mehta, J.(as he then was) and T.U. Mehta, J.(as he then was).

9. Mr. S.N. Shelat, learned Counsel for Gujarat University submitted that a student passing Std. XII Higher Secondary Certificate Examination has an opportunity to seek admission to any of the universities located in the State of Gujarat by securing high marks and has also an opportunity to compete for 15% of seats which are reserved for all India students and seek admission to any of the universities of his choice in the order of merit and, therefore, it cannot be said that the petitioners had no opportunity to secure admission to universities of their choice, but were allotted admission in Pramukh Swami Medical College, Karamsad against their wishes. It was pointed out that for admission to post-graduate courses in medicine, a student has again an opportunity to seek admission at the university of his choice so far as 25% of total seats in each university is concerned by competing at the All India test and, therefore, it is not correct to say that the petitioners are excluded from consideration altogether in the matter of admission to post-graduate medical courses being conducted by Universities which are located in the State of Gujarat. The learned Counsel for Gujarat University highlighted that amongst the remaining 75% seats, all the students of other universities have an opportunity again to seek admission after merit list of Gujarat University students is exhausted and the same is the position with regard to other universities also, which means that no university has excluded students of other universities from consideration while granting admission to post-graduate medical courses. It was claimed that there is no wholesale reservation for Gujarat University students and as opportunity is available to the petitioners to obtain admission in the Universities of their choice by obtaining necessary merits, rule which enables the Gujarat University to prefer its own students, cannot be regarded as arbitrary at all. It was pointed out that Section 39 read with
Section 32
of the Gujarat University Act, 1949 enables the Gujarat University to prescribe rules for admission to post-graduate medical courses and the rules cannot be treated as lacking legislative competence. What was asserted was that rule 4 read with rule 7 of the Rules for admission to post-graduate medical courses prescribes sources for admission and if merit is the criterion adopted within the sources prescribed, it cannot be regarded as arbitrary or contrary to the regulations framed by Medical Council of India. It was highlighted that rules framed by the Gujarat University for admission to post-graduate medical courses are in conformity with and are not inconsistent with or repugnant to any of the regulations framed by the Medical Council of India and, therefore, the validity of the rules should be upheld. Elaborating the said arguments, it was pleaded that regulations of Medical Council of India provide for selection to be made by respective university on merits, but provision as regards institutional preference for students of Gujarat University cannot be said to be inconsistent with the regulations, more particularly when the admissions to the students of Gujarat University are granted only on merits and, therefore, the petitions should be dismissed. The learned Counsel claimed that provision for institutional preference has been held to be constitutionally valid by the Supreme Court in several reported decisions and, therefore, challenge to rule 4 which enables Gujarat University to prefer its own students in the matter of granting admission to post-graduate medical courses, has no substance. It was also stressed that to give preference to students who have studied in Gujarat University in the matter of admission to post-graduate medical coures on merits, is a policy decision and the Court should not direct either Gujarat University or any other University located in the State of Gujarat to have another policy decision providing for statutory reservation in respect of students of other universities within the State, which would be in the nature of regional reservation. The learned Counsel submitted that
Article 16
of the Constitution is not applicable to the facts of the present case, as element of employment does not arise at all when the residency is the requirement for post-graduate study. Lastly it was submitted that the policy of admission being in conformity with the law declared by the Supreme Court, the petitions should be dismissed.
In support of these submissions, the learned Counsel placed reliance on the decisions rendered in (1) Dr. Vikram K. Shah and others v. State and others, 24(
1) GLR 554, (2) Dr. Himanshu Purshottamdas Bavishi & Ors. v. State of Gujarat & Ors.
, 24(
2) GLR 1414, (3) R. Chitralekha v. State of Mysore
and ors., AIR 1964 SC 1823, (4) Chitra Ghosh v. Union of India, AIR 1970 SC 35, (5) State of Andhra Pradesh and anr. v. Lavu Narendra Nath and ors.
AIR 1971 SC 2560, (6) D.N. Chanchala v. State of Mysore and others
, AIR 1971 SC 1762, (7) Dr. Ambesh Kumar v. Principal, LLRM Medical College, Meerut and others,
AIR 1987 SC 400, (8) Gujarat University v. Rajiv Gopinath Bhatt
and ors.
AIR 1996 SC 2066, (9) Mohan Bir Singh Chawla
(supra), and (10) Ahmedabad Municipal Corporation and anr. v. Nilaybhai R. Thakore and anr. AIR 2000 SC 114.

10. Mr. J.R. Anabatic, learned Counsel appearing for Sarasota University, Mr. N.V. Anjaria, learned Counsel for M.S. University, Mr. R.R. Marshal, learned Counsel for South Gujarat University, Mr. V.H. Patel, learned Counsel for Sardar Patel University as well as Mr. M.A. Bukhari, learned A.G.P. appearing for the State of Gujarat and Mr. G.M. Joshi, learned Counsel for students of B.J. Medical College, Ahmedabad have adopted the arguments advanced by Mr. S.N. Shelat, learned Counsel for Gujarat University, and submitted that rule enabling University concerned to give preference to its own students in the matter of grant of admission to post-graduate medical courses being valid, the petitions should be dismissed.

11. We have heard the learned Counsel for the parties at length and considered the submissions advanced at the Bar.

12. The Gujarat University has 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 it in exercise of powers under
section 39
read with
section 32
of the Gujarat University Act, 1949. We may mention that in Dr. Vikram K. Shah & ors (Supra) the learned Single Judge of this Court by issuing a writ of mandamus directed the Gujarat University to frame rules governing the selection for registration of post-graduate students in different branches of medicine and prepare merit lists of persons eligible to be registered as post-graduate students on the basis of those norms to be laid down by the University. The rules for admissions have been framed by the University subsequent to the directions of the Gujarat High Court referred to above. Entry No. 25 of the Concurrent List i.e. List-III of the Seventh Schedule to the Constitution provides as follows :-

Education, including technical education, medical education and universities subject to the provisions of Entries 63, 64, 65 & 66 of List-I; vocational and technical training of labour.

Entry-66 of List-I is in following terms :-

"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." The Parliament has enacted the
Indian Medical Council Act, 1956
under which Medical Council of India is constituted.
Section 33
of the said Act empowers the Council to make regulations with previous sanction of the State Government generally to carry out the purposes of the Act. The Indian Medical Council, pursuant to
section 33
has made certain regulations laying down criteria or standards for admitting the candidates to various post-graduate disciplines in medical colleges. The relevant regulations as reproduced in case of
Preeti Srivastava V. State of M.P.
, AIR 1999 SC 2894 are as under :-

Condition 5 says:

"The selection of post-graduates both for degree and diploma courses should be strictly on the basis of academic merit."

Condition 6 is as follows :-

"Condition 6: The training of post-graduates for degree should be of the residency pattern with patient care. Both the in-service candidates and the stipendiries should be given similar clinical responsibility.......".

Under the heading "facilities for post-graduate students" Cl.(1) provides as follows :-

"Clause (1): There would be two types of post-graduate students :

(a) Those holding posts in the same Department like Resident, Registrar, Demonstrator etc. Adequate number of paid posts should be created for this purpose.

(b) Those receiving stipends. 'The stipends should normally be Rupees 300/- per month payable for the duration of the course."

Under the heading "criteria for the selection of candidates: Cl.(a) is as follows :-

"(a) Students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the under-graduate course. All selection for post-graduate studies should be conducted by the Universities."

Under the heading "Evaluation of merit" it is provided as follows:-

"The Post-graduate Committee was of the opinion that in order to determine the merit of a candidate for admission to post-graduate medical courses, (i) his performance at the M.B.B.S. examinations, (ii) his performance during the course of internship and housemanship for which a daily assessment chart be maintained, and (iii) the report of the teachers which is to be submitted periodically may be considered.

Alternatively the authorities concerned may conduct competitive entrance examination to determine the merit of a candidate for admission to post-graduate medical courses."

13. As per the regulations, all selection for post-graduate studies should be conducted by the Universities and, therefore, we are of the view that Gujarat University has power to frame rules for admission to post-graduate medical courses. Hence, the legislative competence is beyond doubt.
In
R. Chitralekha
(Supra) an order issued by the State Government appointing selection committees for admissions to Medical and Engineering Colleges in the State and directing the committees to add to the marks secured by the candidates at PUC examination the marks awarded by them for the interview and to prepare a fresh order of merit on the basis of the total marks so arrived at, was challenged. The Supreme Court examined the scope of Entry 66 of List-I and held that the order issued by the State Government neither encroached on the field covered by Entry 66 of List-I nor contravened the provisions of Mysore University Act and was not liable to be struck down as invalid. The legislative competence of the State Government was upheld by the Supreme Court in following terms :-

"This and similar other passages indicate that if the law made by the State by virtue of entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case. It is not possible to hold that if a State legislature made a law prescribing a higher percentage of marks for extra-curricular activities in the matter of admission to colleges, it would be directly encroaching on the field covered by entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law."

14. In State of Andhra Pradesh and another vs. Lavu Narendra Nath and others (supra), the State Government had issued rules for selection of candidates for admission into the Medical Colleges and prescribed standard of eligibility. That was challenged by some of the students. The question considered by the Supreme Court was, whether the test prescribed by the Government in any way militated against the power of Parliament under Entry 66 of List I of the Seventh Schedule to the Constitution. What is highlighted by the Supreme Court in that case is that Entry 66 of List I gives Parliament power to make laws for laying down how standards in an institutioon for higher education are to be determined and how they can be co-ordinated, but it has no relation to a test prescribed by a Government or by a University for selection of a number of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject. Again, in Dr. Ambesh Kumar (supra), the question of law considered by the Supreme Court was, whether notice issued by the Government of Uttar Pradesh laying down qualification regarding eligibility of a candidate to be considered for admission to the post-graduate degree in M.D., M.S. and diploma course in M.D., M.S. etc., on the basis of merit in accordance with the Regulations made under the
Indian Medical Council Act
was valid or it trenched upon Entry 66 of List I of the Seventh Schedule to the Constitution. After reviewing the law on the point and examining the ambit of Entry 25 of the Concurrent List i.e. List III of the Seventh Schedule to the Constitution as well as Entry 66 of List-I, the Supreme Court has held that the order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the medical courses on the basis of merit as specified by regulations made under the
Indian Medical Council Act
cannot be said to be in conflict with the said regulations or in any way repugnant to the said regulations. In view of the principles laid down in the above quoted decisions, the only question to be considered is, whether the rules for admission to post-graduate medical courses framed by the Gujarat University are repugnant to or encroaching upon or are in conflict with the regulations framed by the Medical Council of India in exercise of powers conferred on it under
section 33
of the Indian Medical Council Act. By framing Rules 4 & 7, what is done by the Gujarat University is to prescribe sources of admission. In Chitra Ghosh (supra), the appellants, who had passed the pre-medical examination of the Delhi University obtaining over 62 per cent marks, were refused admission to 1st Year M.B.B.S. Course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India. The college prospects contained certain rules relating to admission of students which made reservations of place in the college in favour of various categories of students and provided for nomination to be made by the Central Government to fill some of the reserved places. The appellants challenged primarily power of the Central Government to make nomination and contended that 9 students nominated by the Government had obtained lower marks than theirs in pre-medical examination, so if they were to be excluded, the appellants would become entitled to be admitted in the College. Rejecting this contention, the Supreme Court said, "It is the Central Government which bears the financial burden of the running medical colleges. It is for it to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter-alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis, it is not for the courts to interfere with the manner and method of making the classification.

The above case atleast shows that the sources of admission can be prescribed by the University. This decision has been considered and interpreted by the Supreme Court in State of Andhra Pradesh v. L. Narendra Nath, AIR 1971 SC 2560 at para 13 to mean that "a candidate has not unqualified right to a seat in a medical college merely because he has obtained higher marks than another candidate at the qualifying examination." According to the regulations of the Medical Council of India, the selection to the post-graduate, both for degree and diploma courses should be strictly on academic basis, but the Medical Council of India has not precluded the University from prescribing sources of admission. If merit is the criteria adopted within the sources prescribed, it cannot be said that the rules for admission to post-graduate medical courses framed by the Gujarat University are, in any manner, repugnant to or encroach upon or are in conflict with the regulations framed by the Medical Council of India. In the reply affidavit filed on behalf of the University, it is pointed out that on an average more than 400 students are declared successful at the final M.B.B.S. examination, but only 194 students are admitted to post-graduate medical courses in order of merit. It means that large number of students of Gujarat University itself are left out from getting admission and even they have to compete for 25% of seats reserved for All India students if they want to prosecute post-graduate medical courses. It is not the case of the petitioners that while granting admissions to post-graduate medical courses to its students, Gujarat University overlooks merit or grants admission to a student who is lower in order of merit. The record indicates that Gujarat University admits students to post-graduate medical courses in order of merit and if merit is the criterion adopted within the sources prescribed, the rules framed cannot be regarded as either being repugnant to or in conflict with the regulations framed by the Medical Council of India. As the rules for admission to post-graduate medical courses are not found to be either repugnant to or encroaching upon or in conflict with regulations framed by the Medical Council of India, they cannot be struck down as invalid. Therefore, challenge to validity of rules on this ground fails.

15. Before adverting to the question posed for our consideration, it would be relevant to notice interesting judicial precedents which activated the Universities throughout India to reserve 25% of the total available seats in various post-graduate degree and diploma courses for all India students on the basis of All India Competitive Entrance Examination. In Dr. Pradeep Jain (supra) the question considered was whether wholesale reservation made by some of the State Governments on the basis of domicile or residence requirement within the State or on the basis of institutional preference for students who have passed qualifying examination held by the University or the State, excluding all students not satisfying these requirements, regardless of merit was uncostitutional. The Supreme Court in the said case held as under :-

"It is not possible to provide a categorical answer to this question, for as pointed out by the policy statement of the Government of India, the extent of such reservation would depend on several factors including opportunities for professional education in that particular area, the extent of competition, level of education development of the area and other relevant factors. It may be that in a State where the level of educational development is woefully low, there are comparatively inadequate opportunities for training in the medical speciality and there is large scale social and economic backwardness, there may be justification for reservation of a higher percentage of seats in the medical colleges in the State and such higher percentage of seats in the medical colleges in the State may not militate against "the equality mandate viewed in the perspective of social justice". So many variables depending on social and economic facts in the context of educational opportunities would enter into the determination of the question as to what in the case of any particular State, should be the limit of reservation based on residence requirement within the State or on institutional preference. But, in our opinion, such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made. The Medical Education Review Committee had suggested that the outer limit should not exceed 75 per cent but we are of the view that it would be fair and just to fix the outer limit at 70 per cent. We are laying down this outer limit of reservation in an attempt to reconcile the apparently conflicting claims of equality and excellence."

In ultimate result, it was stated by the Supreme Court that 30 per cent of the open seats should be made available for admission of students on All India basis irrespective of State or University from which they come. The Court also directed that such admissions should be granted purely on merit basis of either All India Entrance Examination or entrance examination to be held by the State. This direction was given by the Supreme Court with regard to admissions to the MBBS and BDS Courses. The Supreme Court then proceeded to discuss the question of admissions to post-graduate courses such as M.D., M.S. and the like and taking into account broader considerations of equality of opportunity and institutional continuity in education which has its own value and relevance, took the view that though residence requirement within the State should not be a ground for reservation in admissions to Post-graduate Courses, a certain percentage of seats should be reserved on the basis of institutional preference in the sense that a student who has passed MBBS Course from a Medical College can be given preference for admission to post-graduate medical courses in the same medical college or university, but the said reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admissions to the Post-graduate Course.

16. In view of the above-referred to directions, the Government of India and Medical Council of India were expected to make necessary arrangement for holding All India Entrance Examination for selection of students so far as minimum 30% non-reserved seats for M.B.B.S. course and minimum 50% non-reserved seats for post-graduate medical courses were concerned. But, no steps were taken by the Government of India or Medical Council of India for holding such All India Entrance Examination and, therefore, the Supreme Court had to give a direction to the Medical Council of India to come forward with a positive scheme for holding All India Entrance Examination for regulating admissions to minimum 30% non-reserved seats for M.B.B.S. course and the minimum 50% non-reserved seats for post-graduate medical courses so that the admissions to these minimum non-reserved seats can be made on the basis of comparative evaluation of merits of the students through such All India Entrance Examination. The Supreme Court, in Dr. Dinesh Kumar (Supra) pointed out that All India Entrance Examination should be conducted in atleast one centre in each State and that having regard to the size of population, the number of students seeking admission and the extent of the geographical area of a State, it might be desirable to have more than one centre in some State or States both in regard to admissions to the post-graduate courses as also in regard to admissions to M.B.B.S. course. Pursuant to these directions, a scheme for holding All India Entrance Examination for admission to minimum 30% unreserved seats for M.B.B.S./B.D.S. courses as well as for admission to minimum 50% unreserved seats for post-graduate medical courses, was formulated by the Medical Council of India and was circulated amongst various State Governments. Some of the State Governments including the University of Bombay had putforwad certain difficulties in the implementation of the scheme as suggested by the Medical Council of India and, therefore, in order to iron out these difficulties, an order was made by the Supreme Court on September 16, 1985 directing the Government of India to convene a meeting as suggested therein for the purpose of considering the scheme putforward by the Medical Council of India. Accordingly, a meeting was convened and the scheme for All India Entrance Examination was modified and re-drafted. Thereafter the said scheme was submitted by the Government of India before the Supreme Court for acceptance.
In view of certain difficulties in implementing the directions contained in Dr. Dinesh Kumar & Ors. (supra) as well as after considering the proposals and submissions made by the Government of India, the Medical Council of India and the various State Governments, the Supreme Court modified its earlier directions as followed in
Dr. Dinesh Kumar and others vs. Motilal Nehru Medical College, Allahabad
, AIR 1986 SC 1877, by directing that not less than 15% of the total number of seats in each Medical College or Institution without taking into account any reservation validly made, shall be filled on the basis of All India Entrance Examination for admission to M.B.B.S./B.D.S. courses and not less than 25% of total number of seats, without taking into account any reservation, shall be made available for being filled on the basis of All India Entrance Examination for admission to post-graduate medical courses.

17. Pursuant to above-referred to directions, the Gujarat University has framed rules governing admissions to post-graduate medical courses and reserved 25% of the total available seats to be filled up on the basis of All India Competitive Entrance Examination. The directions given by the Supreme Court do not provide that any other kind of reservation should be made by the University for students of other Universities located in the same State. In our view, the rules for admissions to post-graduate medical courses which are framed pursuant to the directions of the Supreme Court and which are in conformity with those directions, cannot be regarded as violative of
Article 14
of the Constitution. The Supreme Court's directions have been fully complied with by the Gujarat University and other Universities in the State while framing the rules governing admission to post-graduate medical courses and, therefore, cannot be termed as arbitrary or contrary to the provisions of
Article 14
of the Constitution.

18. Now, we will proceed to examine the question whether institutional preference is bad in law.
In
D.N. Chanchala v. State of Mysore
, 1971 Supplementary SCR 608 a three Judge Bench of Supreme Court considered the validity of rule 9(1) of the Mysore Medical Colleges (Selection for admission) Rules, 1970 relating to admission to M.B.B.S. course. Rule-9(1) provided that seats in the general pool shall be distributed university wise i.e. seats in colleges affiliated to Karnataka University shall be allotted to students passing from colleges affiliated to that University and seats in colleges affiliated to Bangalore and Mysore Universities shall respectively be allotted to students passing from colleges affiliated to each such university provided that not more than 20% of the seats in the colleges affiliated to any university, may, in the discretion of university, be allotted to students passing from colleges affiliated to any other universities in the State or elsewhere in India. Validity of rules was questioned on the ground that it brings about an unreasonable classification which is neither intelligible nor has a rational nexus with the object of the rules. It was submitted that when there is one selection committee for all the medical colleges in all the three universities and 59 private colleges affiliated to them, reservation of 80% of the seats in favour of students of the same University is neither reasonable nor valid. The Supreme Court repelled challenge to the validity by holding as under :-

"The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas. Obviously one university for the whole of the State could neither have been adequate nor feasible to satisfy those needs. Since it would not be possible to admit all candidates in the medical colleges run by the Government, some basis for screening the candidates had to be set up. There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centres for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise. Since the Universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of district-wise or unit-wise selection as any student from any part of the State can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence. Further, the rules confer a discretion on the selection committee to admit outsiders up to 20% of the total available seats in any one of these colleges, i.e., those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India. It is, therefore, impossible to say that the basis of selection adopted in these rules would defeat the object of the rules as was said in
Rajendran
's case or make possible less meritorious students obtaining admission at the cost of the better candidates. The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them. A preference to one attached to one university in its own institutions for post-graduate or technical training is not uncommon. Rules giving such a preference are to be found in various universities. Such a system for that reason alone is not to be condemned as discriminatory, particularly when admission to such a university by passing a qualifying examination held by it is not precluded by any restrictive qualifications, such as birth or residence, or any other similar restrictions. In our view, it is not possible to equate the present basis for selection with these which were held invalid in the aforesaid two decisions. Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission to be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged. In our view, the rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Art. 14."

19. The above-quoted decision of the Supreme Court makes it more than clear that University-wise distribution of seats is constitutionally valid. In that case, university-wise distribution of seats was upheld by the Court as constitutionally valid, even though it was not in conformity with the principle of selection based on merits and marked a departure from it. According to the Supreme Court, candidates passing through the qualifying examination held by a University form a class by themselves as distinguished from those passing through such examination from other Universities and university-wise preference is not discriminatory at all. The view taken by the Supreme Court is that university-wise distribution of seats is not discriminatory because it is based on a rational principle. According to the Supreme Court, there is nothing unreasonable in providing that in granting admissions to medical colleges affiliated to a university, reservation shall be made in favour of candidates who have passed examination of that university, firstly, because it would be quite legitimate for students who are attached to a university to entertain a desire to have a training in specialised subjects, like medicine, satisfied through colleges affiliated to their own university, since that would promote institutional continuity which has its own value and secondly, because any student from any part of the country can pass the qualifying examination of that university, irrespective of the place of his birth or residence.
In our view, the decision of the Supreme Court in
D.N.Chanchala
's case concludes the issue involved in the petitions against the petitioners.

The submission that the principles
laid down in

D.N. Chanchala
's case should not be made applicable to the facts of the present case because it related to admission to M.B.B.S. Course and not to post-graduate medical courses and there was freedom to the students to appear in any of the universities, cannot be accepted. The principles
laid down by
the Supreme Court relating to admission to M.B.B.S. course are applicable with all force to the admissions to post-graduate medical courses. Moreover, it is not correct to say that in the present case the students have no freedom to opt for university of their own choice. Under the scheme of admission to medical faculty, which is prescribed pursuant to the directions of the Supreme Court, at every stage of admission a student has an opportunity to seek admission in the institution of his choice if he is higher up on merits. The qualifying examination for admission to 1st Year M.B.B.S. course is the Higher Secondary Certificate Examination conducted by the Gujarat Secondary Education Board and on the basis of marks obtained at the said examination, a student is required to apply for admission. The admissions are given by the Central Admission Committee. Every student is offered choice for admission on the basis of his merit. There are 15% of seats available for admission to the students pursuant to the All India Entrance Examination, which is required to be held in view of the directions of the Supreme Court. Thus, a student has an opportunity to compete at All India test also and seek admission to any of the universities of his choice in the order of merit. Even for admission to post-graduate courses in medicine, a student has again an opportunity to seek admission to the University of his choice if he competes at the All India Test because 25% of the total available seats have to be filled up on the basis of All India Competitive Entrance Examination in view of the directions of the Supreme Court. Amongst the remaining 75% of the seats, a student has an opportunity again to seek admission in the institution of his choice after the merit list of the Gujarat University students is exhausted.

Thus, it is wrong to contend that in the present case the students have no opportunity to seek admission in the institution of their choice and, therefore, the principles
laid down in

D.N. Chanchla
's case should not be made applicable to the facts of the present case.

20.
In view our conclusion that
D.N. Chanchala
's case has decided the issue raised in the petitions against the petitioners, strictly speaking it is not necessary for us to refer to other decisions. However, several decisions have been cited at the Bar and, therefore, we will take into considerations those decisions also.

21.
In
Dr. Jagdish Saran vs. Union of India
(1980) 2 SCR 831, admission rules prescribed by the Delhi University provided that 70 per cent of the seats at the post-graduate level in the medical course shall be reserved for students who have obtained their MBBS degree from the same university. The remaining 30 per cent seats were open to all including graduates of Delhi University. The validity of reservation of 70% of seats was assailed before the Supreme Court.

After reviewing all the decisions rendered till then on the subject including
D.N. Chanchala
's case (AIR 1971 SC 1762), Hon'ble Mr. Justice R.S. Pathak (as he then was) in his concurring judgment has held as under:

"The validity of a reservation of 70% of the seats in the post-graduate classes by the Delhi University in favour of its own medical graduates is assailed in this writ petition. The basis of the reservation is the consideration that the candidate for admission to the post-graduate classes is a medical graduate of the same University. No question of backward classes, scheduled castes and scheduled tribes, is involved. Criteria pertinent to reservation concerning them are it seems to me not relevant at all. Nor strictly is the test requiring a territorial nexus - the University does not insist that the candidate should hail from any particular region or State for the purpose of the 70% reservation. The relationship is entirely institutional - those who have graduated from the medical colleges run by the Delhi University are favoured for admission to the post-graduate classes. In my opinion, there is sufficient validity in that consideration. It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post-graduate studies. There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures. But much more than convenience is involved. There are all the advantages of a continuing frame of educational experience in the same educational institution. It must be remembered that it is not an entirely different course of studies which is contemplated; it is a specialised and deeper experience in what has gone before. The student has become familiar with the teaching techniques and standards of scholarship and has adjusted his response and reactions accordingly. The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to the post-graduate classes also. Over the under-graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies. In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduates for admission to its post-graduate classes. The preference is based on a reasonable classification and bears a just relationship to the object of the education provided in the post-graduate classes. The concept of equality codified in our constitutional system is not violated. It has been said sometimes that classification contradicts equality. To my mind, classification is a feature of the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone form a class between themselves, and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference of the kind considered here does not offend the constitutional guarantee of equality."

In Dr. Pradeep Jain's case (supra), the question considered was whether consistently with the constitutional values admissions to a medical college or any other institution of higher learning situated in a State can be confined to those, who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State irrespective of merit. After considering the law on the point, the Supreme Court observed at page 1439 as under :-

"We are, therefore, of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State."

22. The same question was again examined in the case of
Dr. Dinesh Kumar and others v. Motilal Nehru Medical College and others
, Allahabad, (1986)3 SCC 727 (AIR 1986 SC 1877).
After considering the earlier directions which were issued in Pradeep Jain's case and other cases, the Supreme Court held that after reserving 25% of the total number of seats, without taking into account any reservation, for being filled on the basis of All India Entrance Examination, the rest of the seats can be reserved by the Universities.

23.
In
Dr. Fazal Ghafoor v. Principal, Osmania Medical College, Hyderabad and others
, (1988) 4 SCC 532, there was only one seat available in the Nizam Institute of Medical Sciences at Hyderabad in the whole of the State of Andhra Pradesh in DM Neurology in the academic year 1986-87. Selection examination for it was held in the month of March, 1987 by the University of Health Sciences constituted under the Andhra Pradesh University of Health Sciences Act, 1986. A set of rules to govern the admission to the said super-speciality were prescribed by the State Government. In the entrance test, the petitioner ranked as number one. At the time of interview, he opted to undertake DM (Neurology), but his claim was rejected on the basis that he was not a local candidate within the meaning of the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 made under
Article 371-D
of the Constitution. Thereupon, he moved the Andhra Pradesh High Court in a writ petition under
Art. 226
of the Constitution. His principal contention was that he was also a local candidate and there could be no reservation for local candidates for super-specialities. In view of the observations of the Supreme Court on more than one occasion, the learned Single Judge held that the petitioner could not be considered as a local candidate and reservation for local candidates for super-specialities was not illegal. Having failed before the learned Single Judge, the matter was carried in appeal before Division Bench, which also dismissed the appeal. Consequently, the Supreme Court was moved under
Article 136
of the Constitution. The Supreme Court also negatived the contentions raised by the petitioner. The Supreme Court upheld the judgment of the High Court holding that expression "State-wide university" would not cover the University of Health Sciences or the Nizam Institute of Medical Sciences. The Supreme Court held that the petitioner's challenge against reservation alleging infringement of
Art. 14
was rightly repelled by the High Court in view of Art. 371-D. This judgment demonstrates that even if there is only one seat available for super-speciality, it can be reserved for a local candidate and though
in that case
the petitioner had ranked as number one, denial of admission to him for super-speciality on the ground that he was not a local candidate was not found by the Supreme Court to be violative of
Art. 14
of the Constitution.

In M.R. Mini (Minor) represented by her guardian & father M.P. Rajappan v. State of Kerala and another, AIR 1980 SC 838, the petitioner had failed to qualify for selection from the Kerala University pool, not having secured high enough marks and had failed to fall within the Calicut University pool not having been a student of that university. The university-wise preference given by Calicut University was challenged before the Supreme Court. As a claim for inclusion, what was urged was that had she been treated as a Calicut University student, her marks would have been sufficient to gain admission and since she belonged to Malabar region which was broadly served by the Calicut University, she should be given the benefit of Calicut University students and consequential admission. Negativating the plea, the Supreme Court held as under in Para-3 of the reported judgment :-

"We cannot agree. Under the existing scheme, the classification for purposes of quota is University-wise, not territory-wise. Belonging to backward Calicut District is not the same a being an alumnus of the Calicut University. May be the State could have classified candidates university-wise, backward region-wise or otherwise, separately or in any constitutionally permissible combination. We are not here concerned with the prospects of the petitioner under any different admission scheme or reservation project. Mystic maybes are beyond judicial conjecture. Once we hold that the university-wise allocatioin of seats is valid the misfortune of the petitioner is damnum sine injuria, if we may use that expression in this context. Every adversity is not an injury. Judicial remedy cannot heal every wound or cure every sore since the disciple of the law keeps courts within its bounds."

This judgment makes it clear that university-wise allocation of seats is valid and not unconstitutional.

24. A three Judge Bench decision of the Supreme Court in
Gujarat University v. Rajiv Gopinath Bhatt and others
, (1996)4 SCC 60 (AIR 1996 SC 2066) deserves a special mention. Gujarat University had invited applications for admission to two years' super-speciality course of D.M. and M.Ch. The admission was to be made based upon marks obtained at the entrance examination conducted by the University. Because of the small number of seats available in the courses, rule provided, "The first preference will be given to the candidates from the Gujarat University. The second preference will be given to candidates from other Universities of Gujarat State. Any vacancy remaining after this, shall remain unfilled". The High Court directed the university to grant admission to respondent No. 1 in the super-speciality course of M.Ch. in Oncho Surgery ignoring the rule which enabled the university to give first preference to its own candidates. By the time the appeal came-up for hearing before the Supreme Court, the appeal had become infructuous as noticed in para-4 of the judgment, inasmuch as the respondent was allowed to join courses and had also completed course by that date. In that view of the matter, the Court was of the opinion that it was not actually required to examine grievance made on behalf of the university against the judgment of the High Court which had struck down the rule. Even so, at the instance of the learned Counsel for the University, Court examined validity of the rule. The High Court had relied upon the decisions of the Supreme Court rendered in cases of Dr. Jagdish Saran and Dr. Pradeep Jain for invalidating the rule. The Supreme Court while sustaining the rule, except the last sentence therein, has held as under :-

"Without examining that question in detail, it may be pointed out that the aforesaid judgments (Jagdish Saran and Pradeep Jain) were not in connection with the admission in super-speciality course. At the same time, we reiterate that object of any institution while selecting applicants for admission is to select the best amongst the applicants, regional and other considerations which do not satisfy the test of
Art. 14
of the Constitution should not affect the merit criteria. But from time to time, this Court taking into consideration the local and regional compulsions have been making efforts to strike a balance so that the students who have pursued the studies in a particular State and have been admitted in the medical colleges of that State are not suddenly thrown on the street when question of their admission in super-speciality courses arises in which the seats are limited in number."

After referring to certain observations made in Dr. Pradeep Jain's case and Anant Madaan's case, the Supreme Court observed, "Therefore, if a rule has been framed that out of the merit list prepared, preference is to be given for admission in the super-speciality courses to the students of the University in question, per se it cannot be held to be arbitrary, unreasonable or violative of
Art.14
of the Constitution".

This judgment makes it abundantly clear that preference can be given for admission in the super-speciality courses to the students of a University and such preference per se cannot be held to be arbitrary, unreasonable or violative of
Art. 14
of the Constitution. The grievance raised by the petitioners in the petitions, therefore, cannot be entertained.

25.
In
Mohan Bir Singh Chawla v. Punjab University, Chandigarh and another
, AIR 1997 SC 788, the rule enabled addition of 10% marks obtained in qualifying examination in case of candidates passing qualifying examination from the same university. The rule was challenged as being violative of
Art. 14
of the Constitution because according to the appellant, university-wise reservation was not constitutionally valid.

The Supreme Court has reviewed almost all the decisions on the point beginning from
D.P. Joshi v. State of Madhya Bharat & another
, AIR 1955 SC 334 till
Gujarat University v. Rajiv Gopinath Bhatt
, AIR 1996 SC 2066 and held that university-wise reservation is not bad in law. In the said case, the Supreme Court felt that addition of 10% marks was on the higher side and, therefore, directed that addition, if any, should not exceed 5%. The propositions of law which have been
laid down by
the Supreme Court
in that case
are mentioned in Para-14 which are as under :-

"From the decided cases, following principles emerge :

(a) College-wise preference is not permissible in any event.

(b) University-wise preference is permissible provided it is relevant and reasonable. Seventy to eighty percent reservation has been sustain, even where students from different universities appear at a common entrance test. The trend, however, is towards reducing the reservations and providing greater weight to merit. The practice all over the country today, as a result of the decisions of this Court, is to make fifteen percent of the seats in M.B.B.S. course and twenty five percent of the seats in post-graduate medical courses in all the Government medical colleges in the country (except Andhra Pradesh and Jammu & Kashmir) available on the basis of merit alone. Students from anywhere in the country can compete for these seats which are allotted on the basis of an All-India test conducted by the designated authority.

(c) The rule of preference on the basis of domicile/requirement of residence is not bad provided it is within reasonable limits i.e., it does not result in reserving more than eighty five percent seats in graduate courses and more than seventy five percent seats in post-graduate courses. But district wise reservation are an anathema.

(d) Where the students from different universities appear at a common entrance test/examination (on the basis of which admissions are made) the rule of university-wise preference too must shed some of its relevance. The explanation of difference in evaluation, standards of education and syllabus lose much of their significance when admission is based upon a common entrance test. At the same time, the right of the State Governments (which have established and maintained these institutions) the regulate the process of admission and their desire to provide for their own students should also be accorded due deference.

(e) The fair and proper rule is: the higher you go, in any discipline, lesser should be the reservations - of whatever kind. It is for this reason that it was said in Dr. Pradeep Jain (AIR 1984 SC 1420), that there should be no reservation in the matter of admission to super-specialities, though in the recent decision in Rajiv Gopinath Bhatt (1996 AIR SCW 2483), a different view appears to have been taken while affirming the principle of merit, at the same time. In the larger interest of the nation, it is dangerous to depreciate merit and excellence in any field."

26.
In
Municipal Corporation of Greater Bombay and others v. Thukral Anjali Deokumar and others
, AIR 1989 SC 1194, it is held that rule providing for college-wise institutional preference is violative of
Art. 14
of the Constitution. Rules framed by the Bombay Provincial Municipal Corporation enabled the authority to give college-wise institutional preference. The Supreme Court found that reservation of seats in Municipal Medical Colleges for students passing qualifying examination from Municipal Colleges offended
Art. 14
of the Constitution. However, we may point out that in this case, we are not concerned with college-wise institutional preference, but university-wise institutional preference and, therefore, the
ratio
laid down in
the said case does not apply to the facts of the present case.

Moreover, in
Ahmedabad Municipal Corporation and another v. Nilaybhai R. Thakore and another
, AIR 2000 SC 114, rule 7 of the Rules for admission to Smt. N.H.L. Municipal Medical College was as under:-

"A local student is defined as a student who has passed SSC/new SSC examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad City Municipal limits"

As per the said rule, only those students who qualify from educational institutions situated within the Municipal limits can be considered to be eligible to be treated as local students, while the permanent resident students of the city of Ahmedabad who for fortuitous reasons, happen to acquire qualification from educational institutions situated just outside the Municipal limits, were not considered eligible for being treated as local students. The respondents had challenged constitutional validity of rule 6(1) and rule 7 of the Rules before Gujarat High Court. The High Court of Gujarat had allowed the petition, against which an appeal was preferred before the Supreme Court. While allowing the appeal, the Supreme Court has read down the rule and held that rule restricting admissions to those who have acquired qualification from the institutions situated within the municipal limits, means also those students who for fortuitous reasons, happen to acquire qualification from educational institutions situated within the ambit of Ahmedabad Urban Development Area. However, the rule was not struck down as being arbitrary or violative of the provisions of
Art. 14
of the Constitution.

27. Again, in State of Rajasthan and anr. v. Dr. Ashok Kumar Gupta and others, AIR 1989 SC 177, question of admission to post-graduate medical courses was considered. The Ordinance of University of Rajasthan provided for addition of 5 percent of marks based on college. This college based preference was held to be unconstitutional and violative of
Art.14
of the Constitution. In this case, we are not concerned with addition of marks so far as students of Gujarat University are concerned. It is not the case of the petitioners that any additional marks are being assigned to the students of Gujarat University while granting them admission to post-graduate medical courses. Therefore, we are of the view that the principles
laid down in
that case would not be applicable to the facts of the present case.
In
Anant Madaan v. State of Haryana
and ors., AIR 1995 SC 955, eligibility criteria for admission to Medical College required that candidates should have studied their 10th, 10 + 1 and 10 + 2 classes as regular candidates in recognised institutions of State itself. 85 percent of the seats were given for students who had studied in recognised institutions of the State; whereas 15 percent of the seats were to be filled in on All India basis. This eligibility criteria was challenged. After referring to several decisions on the point, the Supreme Court has held that eligibility criteria was in conformity with the decision of the Supreme Court and the eligibility criteria was neither arbitrary nor unconstitutional, nor violative of
Art. 14
of the Constitution.

28. The learned counsel for the petitioners, however, placed strong reliance on the decision in the case of
Nidamarti Maheshkumar vs. State of Maharashtra and others
, A.I.R. 1986 SC 1362 and pleaded that the respondents should be directed to keep at least 30% of the open seats available for admission to the students who have studied in other Universities of the State. In that case the qualification required for admission to MBBS course in the State of Maharashtra was the passing of 12th standard examination held by the Maharashtra State Board of Secondary and Higher Secondary Education. The teaching in the first ten standards was carried on in schools while in 11th and 12th standards the teaching was done at some places in schools and at others in colleges. The schools and colleges where education was imparted in the 11th and 12th standards were not in any way connected with the Universities within whose jurisdiction they were situate nor had the Universities anything to do with the 12th standard examination. There was one Board for the whole of Maharashtra called "Maharashtra State Board of Secondary and Higher Secondary Education" and it comprised of three Divisional Boards - one for Vidarbha region, another for Marathwada region and the third for the rest of Maharashtra - and though for the purpose of convenience each of these three Divisional Boards conducted the 12th standard examination for the area within its jurisdiction, the examination which was held was one and the same throughout the State of Maharashtra, based on the same syllabus, with the same set of questions and the same standard of evaluation. The results of the 12th standard examination were published divisionwise and the merit list was also prepared on that basis. The question papers being the same and the standard of evaluation also being uniform throughout the three regions, it was easy to assess the comparative merits of the candidates in the three regions by reference to the marks obtained by them at the 12th standard examination, but for the academic year 1986 the State Government had departed from this principle of selection based on merits across the board and made regionwise classification for admission to medical colleges by framing new Rules for Admission to the M.B.B.S. Course. Rule B(2) of these Rules, inter alia, provided as under:

"Students who have passed H.S.C. (10+2) 12th standard examination of the Maharashtra State Board of Secondary and Higher Secondary Education from Schools/Colleges situated within the jurisdiction of one university are not eligible for admission to medical college or colleges situated in the jurisdiction of another university. The seats at the Government Medical Colleges in Maharashtra State except those earmarked for nominees of the Government of India and nominees of Miraj Medical Centre and those mentioned in Rule D(4) below are reserved for the students of the respective university area."

The admissions to medical colleges were thus made subject to regionwise classification inasmuch as a student from a school or college situated within the jurisdiction of a particular university could seek admission only in the medical college or colleges situate within the jurisdiction of that University and he could not be eligible for admission to medical college or colleges situate in the jurisdiction of another university. This regionwise classification made by the State Government for the purpose of admissions to medical colleges was assailed by the appellant by filing a writ petition in the High Court of Bombay on the ground that it was violative of
Article 14
of the Constitution. The writ petition was dismissed by the High Court. The Supreme Court in Special Leave Petition considered the question as to what principles for selection of students for admission to medical colleges would be permissible under
Article 14
of the Constitution. After considering leading judgment rendered in the case of Dr. Pradeep Jain (AIR 1984 SC 1420) and other judgments the Supreme Court held that Rule B(2) resulted in denial of equal opportunity and was violative of
Article 14
of the Constitution. However, the Supreme Court also held that it would not be unconstitutional for the State Government to provide for reservation or preference in respect of certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within the region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the constitutional mandate of equality. The Supreme Court
in that case
gave following directions:

"We would adopt the same principle in case of regionwise reservation or preference and hold that not more than 70 per cent of the total number of open seats in the medical college or colleges situate within the area of jurisdiction of a particular university, after taking into account other kinds of reservations validly made, shall be reserved for students who have studied in schools or colleges situate within that region and at least 30 per cent of the open seats shall be available for admission to students who have studied in schools or colleges in other regions within the State."

In our view, principles
laid down in
this judgment are not applicable to the facts of the present case. It is not the case of the petitioners that MBBS examination of all the Universities is one and the same throughout the State of Gujarat or is held by a common body as was the case of 12th standard examination which was taken by one Board for whole Maharashtra called Maharashtra State Board of Secondary and Higher Secondary Education.
Moreover, judgment in Nadamarti's case (supra) cannot be read in isolation. In the petitions before us the rules have been framed by the Gujarat University pursuant to the scheme envisaged by the Supreme Court of India in the decisions beginning from AIR 1984 SC 1420 to AIR 1986 SC 1877.
It may be mentioned that Nadamarti's case (supra) was decided by the Bench presided over by Honourable Mr. Justice P.N. Bhagwati (as he then was) who also decided the case of
Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Alllahabad
, AIR 1986 SC 1877. We may note that decision in case of Dr. Dinesh Kumar and others is later in point of time and by
the said decision
direction was given to all the universities in the country that not less than 25% of the total number of seats without taking into account any reservation should be made available for being filled up on the basis of All India Entrance Examination.
It would be reasonable to presume that while giving direction to the universities to reserve 25% of the total number of seats for All India Students, the Court was aware of the decision rendered in Nidamarti's case because the same learned Judge has decided both the cases. Moreover, as observed earlier, decision as regards constitutional validity of institutional preference has been upheld in number of decisions of the Supreme Court. All the Universities or State Governments provide 25% of total seats to all other students. The decision in the case of Nidamarti's case is in respect of classification on the basis of region.
Classification on the basis of region is different from the classification on the basis of institutional preference as explained by Honourable Mr. Justice R.S. Pathak (as he then was) in
Dr. Jagdish Saran and others v. Union of India and others
, AIR 1980 SC 820 at page 836.
Therefore, on the basis of principles
laid down in
Nidamarti's case, no direction can be given to the respondents to reserve at least 30 per cent of the open seats so that they can be made available for admission to students of other Universities in the State.

29. We may now refer to judgment of the Supreme Court in Dr. Preeti Srivastava and anr. v. State of Madhya Pradesh and ors. AIR 1999 SC 2894. The question which was considered by the Supreme Court therein was whether apart from providing reservation for admission to the Post-Graduate Courses in Engineering and Medicine for special category candidates, is it open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission under the reserved category. It was found by the Supreme Court that State of Madhya Pradesh had prescribed minimum percentage of qualifying marks for reserved category candidates to make them eligible for counselling and admission to the post-graduate medical courses and, therefore, the question referred to above was considered. This question has been answered by the Supreme Court in Para-62 of the reported decision in following terms :-

"In the premises, we agree with the reasoning and conclusion in
Dr. Sadhna Devi v. State of U.P.
(1997 AIR SCW 1146:AIR 1997 SC 1120) (supra) and we overrule the reasoning and conclusions in
Ajay Kumar Singh v. State of Bihar
(1994 AIR SCW 2515) (supra) and
Post-Graduate Institute of Medical Education and Research, Chandigarh v. K.L.Narasimhan
(1997 AIR SCW 2274 : AIR 1997 SC 3687 : 1997 Lab IC 2317) (supra) : To conclude :

1. We have not examined the question whether reservations are permissible at the post-graduate level of medical education.

2. A common entrance examination envisaged under the Regulations framed by the Medical Council of India for post-graduate medical education requires fixing of minimum qualifying marks for passing the examination since it is not a mere screening test.

3. Whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the post-graduate levelof medical education is a question which must be decided by the Medical Council of India since it affects standards of post-graduate medical education. Even if minimum qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the general category candidates at this level. The percentage of 20% for the reserved category and 45% for the general category is not permissible under
Art. 15(4)
, the same being unreasonable at the post-graduate level and contrary to public interest.

4. At the level of admission to the super-speciality courses, no special provisions are permissible, they being contrary to national interest. Merit alone can be the basis of selection."

30. In the case on hand, Gujarat University has not prescribed different admission criteria in the sense of prescribing different minimum qualifying marks for its own students seeking admission to post-graduate medical courses. Prescription of minimum marks is not the question raised in the petitions before us which was before the Hon'ble Supreme Court. Moreover, second part of the regulations prescribing common entrance test by the Medical Council of India was examined by the Supreme Court and not the first part. After holding that norms for admission have connection with standards of education, it has been emphasised therein that a State for admission to the post-graduate medical courses can lay down qualifications in addition to those prescribed under Entry 66 of List-I and this would be consistent with promoting higher standards for admission to the higher educational courses, but any lowering of the norms laid down can and do have an adverse effect on the standards of education in the institutes of higher education. The Supreme Court has in para-36 of the reported decision laid down some of the norms for admission. It is not averred by the petitioners that those norms are not being adhered to by the Universities located in the State of Gujarat. What is emphasised therein is that minimum qualifications have to be met with by the State or University for admission. It is not the case of the petitioners in the present petitions that minimum qualifications or norms prescribed by Medical Council of India are ignored by the Universities in the State while granting admission to the post-graduate medical courses. Having regard to all these circumstances, we are of the opinion that this decision is not helpful for deciding question of institutional preference raised by the petitioners in the present petitions.

31. In the case of Dr. Narayan Sharma and anr. v. Dr. Pankaj Kr. Lehkar and ors. AIR 2000 SC 72, the Supreme Court considered the question whether sub-rule (ii) of Rule 4 of Assam Medical Colleges (Regulation of Admission to Post-Graduate Courses) Rules, 1997 providing for reservation of 4 seats for candidates recommended by North Estern Council was valid or not. The Supreme Court also considered the validity of quota seats provided under the different rules. On review of law on the point, the Supreme Court has held that sub-rule (ii) of rule 4 providing for reservation of 4 seats for candidates recommended by North Eastern Council is not constitutionally valid. The Supreme Court in the said case was more concerned with reservation issue with which we are not concerned in the present petitions. The reservations made by the University in favour of the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class, are not under challenge in the present petitions. Therefore, this decision also is of no assistance in determining the question whether university-wise preference is legal or not.

32. Mr. Y.N. Ravani, learned Counsel for the petitioners in Special Civil Application No. 5898/99 laid special emphasis on the decision of the Supreme Court in
U.P. Junior Doctors' Action Committee and others v. Dr. B. Sheetal Nandwani and others
, AIR 1992 SC 671 and pleaded that admission to post-graduate courses in medical colleges should be based on selection basis and not on the basis of M.B.B.S. results alone. Therein, the dispute related to admission to post-graduate course of medical wing. Fake writ petition was filed in the High Court of Allahabad who made an order that admission should be effected on the basis of M.B.B.S. results. The Supreme Court found that that order was counter to the decision of the Supreme Court and proceedings before the High Court were totally fraudulent, inasmuch as no one by the name given in the petition as petitioner could really be identified. It was, therefore, stated by the Supreme Court that no admission should be permitted on the basis of M.B.B.S. results. However
,
in that case
, the Supreme Court has referred to its earlier decision rendered in the case of Dr. Pradeep Jani to emphasis that admission for 25% of seats in post-graduate courses should be regulated on the basis of All India selection and the remainder 75% of the seats should be left to the University to be filled-up. In our view, the universities in the State have complied with the directions given by the Supreme Court in the case of Dr. Dinesh Kumar and Ors., AIR 1986 SC 1877 and framed rules accordingly. As observed earlier, what is actually done by the universities is to prescribe sources of admission and merit is the criteria adopted within the sources prescribed. Therefore, the decision in the case of U.P. Junior Doctors' Action Committee is of no help to the petitioners.

33. Lastly, it was contended by Mr. Y.N. Ravani, learned Counsel for the petitioners in Special Civil Application No. 5898/99 that a student who is admitted to post-graduate medical courses is entitled to receive stipend and this partakes the characteristic of employment by the State the exclusion of students of other universities being contrary to provisions of
Art. 16
of the Constitution should be struck down. In support of this plea, learned Counsel placed reliance on an unreported Division Bench decision of this Court in Dr. Metha Rupaben Ishvarlal and others Vs. State of Gujarat and others decided on March 24, 1976. In our view, there is no substance in this contention and the rules impugned are not liable to be struck down as being violative of
Article 16
of the Constitution. These rules do not deal with residency at all, but deal with post-graduate studies. A student is paid stipend because he has to reside in campus of his college and render emergency services in the hospital attached with the college. Residency cannot be treated as job at all. In fact, it is part of the post-graduate training. In Ajaykumar Singh and others Vs. State of Bihar and others, (1994) 4 SCC p.401, it was argued that inasmuch as substantial amount is paid by way of stipend to post-graduate students, admission to post-graduate students is in fact an appointment to the post. It was further pleaded that post-graduate courses in medicines is a promotional post for doctors who have completed M.B.B.S. course and, therefore, no reservations are permissible in the matter of promotion. Rejecting this contention, the Supreme Court has held that, admission to post-graduate medical courses is not a promotion and admission to such courses cannot be equated to appointment to a post. Thus, the question whether admission to post-graduate medical courses can be equated to appointment to a post, is concluded by the judgment of the Supreme Court against the petitioners and, therefore, rules cannot be struck down as being violative of
Article 16
of the Constitution. Moreover, in the case of Dr. Mehta Rupaben Ishvarlal and others vires of Rule 8 sub-rule (ii) of the Rules governing the appointment of Registrars at the Government Medical Colleges and attached teaching hospitals of the State framed by the Government, was challenged. The petitioners therein had claimed on merits that they were entitled to be appointed to the post of Registrars in the subject of paediatrics and surgery. The rule was found to be offending
Article 16
of the Constitution by the Court and, therefore, it was struck down. In our view, this decision does not lay down that admission to post-graduate course partakes characteristic of employment by the State. In the said case, court examined question of validity of appointment of Registrar with which we are not concerned in these petitions at all and, therefore, it is of little assistance to the petitioners. However, in view of the authoritative pronouncement of the Supreme Court on the point in the case of Ajaykumar Singh (supra), challenge to the rule on the ground that it violates
Article 16
of the Constitution cannot be sustained and is rejected.

34. The net result of the discussion is that students who have passed their examination from Pramukh Swami Medical College, Karamsad, are not excluded from consideration for admission to post-graduate medical courses either of the Gujarat University or of any other university located in the State of Gujarat. There are several institutions of All India character which provides for entrance test for admission to post-graduate medical courses and, therefore, it is always open to any student who is serious enough to get admission in a particular University by appearing at the entrance test. With the very object in the mind in respect of such students who do not have further growth opportunity in their institution, the Supreme Court directed to frame a scheme for All India students, namely, All India Competitive Entrance Examination for admission to post-graduate medical courses. All Students including students of different universities in the State are eligible for consideration and no reservation has been provided therein. All the students are entitled to admission on merits to the existing universities which provide for post-graduate courses in the country and 25 per cent of the total seats are made available within the country for such students. By framing Rules 4 and 7, what is done by the Gujarat University is to prescribe sources of admission and as merit is the criteria adopted within the sources prescribed, rules are constitutionally valid. After list of students of the Gujarat University is exhausted, students of the other statutory Universities in the State are also preferred. It means that all the students of all statutory Universities in the State are treated at par on the basis of the examination results and the Gujarat University has not treated them differently but only preference is given to the students from amongst the Gujarat University. University-wise preference having been upheld and approved by the Supreme Court in several decisions, is neither violative of
Article 14
nor violative of
Article 16
of the Constitution. It is not uncontitutional for the Universities in the State to provide for preference in favour of those who have studied in the colleges affiliated to them. Even if the percentage stipulated by the University is 75%, it would not fall foul of the constitutional mandate of equality. The preference would be constitutionally permissible because it would cause a considerable amount of hardship and inconvenience if students studying in a particular University are compelled to move to other University for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any preference. It must be remembered that there would be a large number of students who if they do not get admission in the University where they have studied and are left to seek admission in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursuing the medical course. The opportunity for medical education provided to them would be illusory and not real because they would not be able to avail of it. Moreover, some difficulty would also arise in case of girls because if they are not able to get admission in the medical college affiliated to their University, they might find it difficult to pursue medical education in a medical college situate in another region where hostel facilities may not be available and even if available, the parents may hesitate to send them to the hostels. Therefore, preference by University to its own students cannot be regarded as unreasonable or arbitrary. We may state that even Sardar Patel University, Vallabh Vidhyanagar, Anand, to which Pramukh Swami Medical College, Karamsad, is affiliated has supported the stand of university-wise preference. The prayer to direct the respondents to formulate requisite education policy as is adopted by 13 States in the country cannot be granted because the policy of admission adopted by the Gujarat University and other Universities in the State is not found to be arbitrary, irrational or unreasonable. It is not normally within the domain of any Court to weigh the pros and cons of the policy or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose except where it is arbitrary or violative of any consitutional, statutory or any other provision of law. When a University forms its policy, it is based on a number of circumstances on facts and law including expert opinion. It would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. Therefore, the directions as sought for cannot be granted. The University is entitled to lay down sources from which selection for admission would be made. A provision laying down such sources is strictly speaking not a reservation. It is not a reservation as understood by
Article 15
against which objection can be taken on the ground that it is excessive. Students of other Universities in the State are not denied admission in to Gujarat University on grounds of any religion, race, caste, language or any of them. Therefore, Rules 4 and 7 of Admission Rules are legal and valid and do not offend provisions of
Articles 14
and
of the Constitution. The students of all the universities are treated at par on the basis of examination results and no university has treated them differently, but only preference is given to the students of the university who secure marks as per regulations prescribed by the Medical Council of India. In comparison to students of other Universities of Country, students of other Universities of the State are preferred by each University after merit list of their students gets exhausted. Admission to a particular college cannot be treated as a fortuitous circumstance because it is open to a student to show his own merits and seek admission in the institution of his choice. Taking overall view of the matter, we are of the opinion that there is no substance in the petitions and the petitions are liable to be dismissed.

For the foregoing reasons, both the petitions fail and are dismissed. Rule is discharged in each petition with no order as to costs.