1. The question raised for decision in this writ petition is whether the petitioner who having passed her M. B. B. S. Examination from Mahatma Gandhi Institute of Medical Sciences, Sevagram could be denied admission for post graduate courses in obstetrics and gynaecology in the Government Medical College, Nagpur, by reason of her not having passed her M. B. B. S. examination from the government Medical College, Nagpur.
2. The petitioner passed her M. B. B. S. examination from Mahatma Gandhi Institute of Medical Sciences, Sevagram and completed two house-jobs first in gynaecology and obstetrics and the other in radiology. She secured admission for diploma in obstetrics and gynaecology at the Government Medical College, Nagpur for 1982-84 session, but had given a declaration that she would forego that registration if she were selected for M.D. in obstetrics and gynaecology. In response to the notice issued by the respondent 1, the Dean, Government Medical College, Nagpur, on 6th Jan. 1984, the petitioner applied for admission to the Post-graduate degree coursed claiming her seat in open merit of Scheduled Caste candidates. In the list of applicants which was exhibited by the 1st respondent on 25th Jan. 1984, the following names were mentioned:
5. Mahajan O.B.C. 266 Gynecology.11. Junghare O.B.C. 262 Gynaecology/Anaesthesia.14. Dhake O.B.C. 260 Gynaecology.19. Vavre S.C. 239 Gunaecology IGMC Bhilai.21. Shrikhande V.J.N.T. 231 Surgery/ Gynaecology Open.26. Yadao S.T. 219 Gynaecology Selected for D.G.O.27. Patil S.C. 218 Gynaecology/Radiology.
Out of the 8 Posts for M.D. Gunaecology and obstetrics for which the applications were invited, 5 were for open candidates, 1 for scheduled caste candidate 1 for scheduled tribe candidate and 1 for O.B.C. candidate. No post was declared for V.J.N.T. candidate in the reserved quota. In the list of candidates provisionally selected for admission which was published on 2nd Feb. 1984,the first 3 candidates were from open category, the 4th was Ku. mahajan O.B.C. in merit, 5th and 6th were from open category and the 7th Ku. Shrikhande was shown as Vimukta jatis in that Ku. Vavre who had been originally shown against the scheduled caste candidate in the list of applicants, was not selected because show as employed at Bhilai and no objection certificate from the employer had not been obtained.
3. The petitioner's contention was that since she belonged to scheduled caste and was available against the post reserved for scheduled caste, that post could not have been allotted to a Vimukta Jatis candidate for whom originally there was no reservation and that she should have been allotted that post. In the return filed by respondents 1 and 3, the Dean, Government Medical College, and the State of Maharashtra, it was contended that the rule of preference for institutional candidate having been upheld by the Full Bench of this Court, had been re-introduced as amended R. 5 of the government Resolution of 1983 after having been deleted in consequence of the judgment of a Division Bench of this Court in Satish Deopujaris case (Writ Petn. No. 1974 of 1981). According to the respondents, as the petitioner was not a student of the Government Medical College, Nagpur, she was selected for the scheduled caste seat and against the seat reservation was given to Ku; Shrikhande, a V.J.N.T. candidate who had passed form Government Medical College, Nagger. Rule 5 of the Government Resolution, Urban Development, Public Health and Housing department no. MUG/2571/24516/DDT. 18th June 1971, whiled providing that selection of students for admission to the post-graduate degree or diploma, will be on the basis of the marks obtained at the university examination modified with specified deduction for the number of attempts taken to pass that subject as well as the final M.B.B.S. examination, permitted selection from amongst eligible candidates by giving preference to the students of that college i.e. those who had passed their final M.B. B.S examination from that college. This rule came to be amended by Government Resolution dt. 13th July 1982 as a sequel to the judgment of the Division Bench in Writ Petn. No. 1974 of 1981 in Satish Deopujaris case, dt. 11th Dec. 1981, as the original rule was held to be violative of Art. 14 of the Constitution. Later the rule was again modified because of the Full bench decision in Dean, G. S. Medical College v. Dr. Samina Sukhel Khatib, : AIR1983Bom459 which held that where what is in question is not a reservation but the legality and validity of a rule made by an authority running the college specifying the sources from which admissions will be given in order of preference, rule 4 providing for priority cannot be treated as a rule providing for total reservation. Consequently by the Government Resolution No. MOM 1982/1812/ Med-7 dt. 20th Aug. 1983. the rules were further modified whereby the original R. 5 was substantially restored allowing for preference to the students of that college i.e. who passed the final M.B.B.S. examination from that college.
4. On behalf of the petitioners the validity of the institutional preference was assailed in view of the observations in Dr. Pradeep Jain v. Union of India, : (1984)IILLJ481SC . This position came to be considered with reference to the 1971 rules which had provided for institutional preference by a Division Bench of this Court in Abhay Darshane v. State of Maharashtra, 1985 MahLJ 155 and it was pointed out that r. 5 as interpreted by the Division Bench would undoubtedly amount to 100% reservation in favour of institutional candidates and irrespective of their merit, no institutional candidates would come up for consideration for registration only when institutional candidates are not available. Such a total reservation was held to be violative of Art. 14 by the Supreme Court, at least, in so far as the post-graduate medical course is concerned. The petitioner who is a non institutional candidate was high in the order of merit. In view of the criteria laid down by the Supreme Court that only 50% seats could be reserved for institutional candidates, in the instant case a maximum of only 4 out of 8 seats could be reserved for institutional candidates and the total number of seats could not be reserved for institutional candidates.
5. In the present case the seat which was originally reserved for a scheduled caste candidate and fell vacant because Ku. Vavre had not been allotted that seat, could have been filled by allotting it to the petitioner who belonged to scheduled caste. Since there was no reservation originally for V.J.N.T. candidate, that seat could not have been allotted to a V.J.N.T. candidate and allotted to Shrikhande. Another candidate Yadao who was shown against scheduled tribe post for which there was a reservation originally, had not been allotted any seat, and Shrikhande could have been adjusted against that seat as no other scheduled tribe candidate was available. The only ground on which the learned Assistant Government Pleader tried to justify the non-allotment of the post to the petitioner was that she had no passed the M.B.B.S. examination from the Government Medical College, and not that she did not belong to the scheduled caste. If there was a reservation of one seat for scheduled caste, and if a candidate who had passed from another institution was available, that seat ought to go to her and could not be denied to her only because she did not pass the M.B.B.S. examination from the Government Medical College.
6. We find that the view taken by the Full Bench of this Court cannot now be followed in view of the express pronouncement of the Supreme Court in Pradeep Jain's case : (1984)IILLJ481SC . The preference sought to be given on the basis of the 1983 rules to the institutional candidates would in effect amount to total reservation which would be violative of Art. 14 of the Consitution.
7. The learned Assistant Government Pleader urged that the Supreme Court judgment in Pradeep Jain's case has to be implemented from the academic year 1985-86 in view of the directions of the Supreme Court in Reita Nirankari v. Union of India, : AIR1984SC1569 and that the Supreme Court a said that the judgment shall one implemented with effect from the next academic year 1985-86 and whatever admissions provisional or otherwise, made in the academic year 1984-85 shall not be disturbed on the basis on the basis of the judgment and that the judgment will not apply to the States of Andhra Pradesh and Jammu and kahsmir. In the present case there is no question of the implementation of the directions given by the Court regarding the reservation on the basis of the institutional preference in any event not exceeding 50 per cent of the total seats for the post-graduate course. The outer limit that is laid down by the Supreme Court was subject to revision by the Indian Medical Council. the question here is whether the institutional preference which in effect would amount to total exclusion of the candidate not belonging to that particular institution would be violative of Art. 14 of the Constitution and we find having regard to the principles laid down by the Supreme Court that such an institutional preference cannot be countenanced. We are in respectful agreement in this matter with the view taken by another Division Bench of this Court in Abhya Drshane's case 1985 MahLR 155. No other question was raised before us on behalf of the respondents.
8. In the result we allow the petition and direct the respondents 1 to 3 to admit the petitioner to the post-graduate course in obstetrics and Gynaecology (M.D. Obstetrics and Gynaecology) during the academic year 1985-86, if necessary by creating an additional post and without disturbing the candidates who had already been admitted for the course commencing from February 1984. Rule made absolute in these terms. No costs. Petition allowed.