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The Dean, G.S. Medical College and anr. Vs. Samina Suhel Khatib and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberAppeal No. 384 of 1983 in Writ Petn. Nos. 184 of 1983 and 1589 and 1741 of 1981
Judge
Reported inAIR1983Bom459; 1983(85)ARBLR437(Bom); 1983MhLJ771
ActsConstitution of India - Articles 14 and 15
AppellantThe Dean, G.S. Medical College and anr.;sanjay Pravinchandra Dalal and anr.
RespondentSamina Suhel Khatib and anr.;state of Maharashtra and ors.
Appellant AdvocateR.J. Joshi,;F.N.P. D'Mello, and;P.M. Pradhan, Advs.; Ashok H. Desai and;D.B. Shroff, Advs.
Respondent AdvocateA.V. Sawant, Adv. General,;K.K. Singhvi,;R.V. Desai,;A.I. Shaikh and;P. Shankarnarayan, Advs.
Excerpt:
constitution of india, articles 14, 15(1), 29(2) - rules made by municipal corporation of greater bombay for admission to post graduate, degree and diploma courses at municipal medical colleges, rule 4 -- rule providing preference to candidates of parent institution -- rule whether provides for reservation -- rule 4 whether violatwe of article 14 -- rules providing for admission to medical colleges nominating sources from which admissions to be made -- tests to determine validity of such rules.;rule 4 of the rules dealing with the admission to post-graduate degree and diploma courses at municipal medical colleges affiliated to the university of bombay made by the municipal corporation of greater bombay does not in fact provide for reservation but provides a preference for admission as.....chandurkar, ag. c.j.1. this appeal filed by the deam, g. s. medical college, and the municipal commissioner, municipal corporation for greater bombay was referred to this full bench as a question of general importance affecting a large number of medical students seeking admission to the post-graduate medical courses in a college run by the municipal corporation, was involved. the appeal is directed against the judgment of the learned single judge who has taken the view that the rules in question which give a preference to the students of a medical college belonging to the corporation for the purposes of admission to the post-graduate medical course in that college are bad on the ground of violation of article 14 of the constitution. while arriving at this conclusion, the learned single.....
Judgment:

Chandurkar, Ag. C.J.

1. This appeal filed by the Deam, G. S. Medical College, and the Municipal Commissioner, Municipal Corporation for Greater Bombay was referred to this Full Bench as a question of general importance affecting a large number of medical students seeking admission to the post-graduate medical courses in a college run by the Municipal Corporation, was involved. The appeal is directed against the judgment of the learned single Judge who has taken the view that the rules in question which give a preference to the students of a medical college belonging to the Corporation for the purposes of admission to the post-graduate medical course in that college are bad on the ground of violation of Article 14 of the Constitution. While arriving at this conclusion, the learned single Judge has followed a decision of the District Bench of this Court given at Nagpur in Dr. Satish B. Deopujari v. State of Maharashtra, Writ Petn. No. 1974 of 1981 decided on 11-12-1981 (hereinafter referred to as 'Deopujari's case').

2. Two other writ petitions, in one of which a similar question is involved, were also heard along with this appeal. One was Writ Petition No. 1`741 of 1982. In the other writ petition, being Writ Petition No. 1589 of 1982, a question relating to the validity of rules made by the State Government consequent upon the decision of this Court in Deopujari's case was the subject-matter of challenge. It, however now transpires that both these petitions have become infructuous and this is not in dispute. But since the State of Maharashtra is a party in Writ Petition No. 1589 of 1982, we have also heard the learned Advocate-General who has supported the view than in Deopujari's case.

3. We may how briefly refer to the facts which are relevant for the decision of this appeal. Admittedly the original petitioner (respondent 1 in this appeal) had passed M. B. B. S. Examination from the Marathwada University in December 1982 and she stood first in the Examination securing 904 out of 1400 marks. She has also earned a large number of prizes and all gold medals. She applied for admission to the M. D. course in the subject of medicine in the G. S. Medical College, Bombay , which is run the Municipal Corporation of Greater Bombay . She, however, did not find her name in the list of candidates admitted to the post-graduate course and she, therefore, filed petition challenging the decision of the authorities rejecting admission to her.

4. The learned single Judge on a construction of the relevant rules, which wee shall reproduce later, took the view that Rule 4 of the Rules amounts to a full scale reservation of all seats available in the college for post-graduate studies for students of the same college and in view of the decision in Deopujari's case, this was wholly impermissible. the learned Judge held that the petitioner was, therefore, entitled to admission and directed the Dean and the Municipal Commissioner to admit the petitioner to the M. D. course in General Medicine at the G. S. College, Bombay , if necessary by creation of an additional seat.

5. When this appeal came up for admission, an application for intervention came to be made on behalf of certain students who had completed their internship and were, therefore, prospective candidates for the post-graduate courses in the colleges run by the Bombay Municipal Corporation because according to them, they were apprehensive that if the decision of the learned single Judge went unchallenged, their chances of applying for and getting admission to the post-graduate courses would be seriously prejudiced. They were, therefore, allowed to intervene in the appeal filed by the Municipal Corporation and the Dean. At that time a direction was given by the Court that irrespective of the result of the appeal, the admission, which was directed to be granted to the original petitioner, would stand and that the petitioner's admission would not in any way be affected whatever be the decision of the appeal. As already pointed out, when the appeal came up for hearing before the Division Bench, in view of the importance of the matter involved. a Full Bench was constituted. That is how this appeal is now being disposed of by the full Bench.

6. It is necessary, at the outset, to refer to the relevant rules dealing with the admission to port-graduate degree and diploma courses at Municipal medical colleges affiliated to the University of Bombay , which have been made by the Municipal Corporation of Greater Bombay . Rule 3 prescribes eligibility for admission to port-graduate degree and diploma. Under this rule every candidate applying for admission to the post-graduate diploma or degree course-----

(1) should possess the MBBS degree of the University of Bombay or any other University recognised as equivalent thereto by the University of Bombay and the Medical Council of India.

(2) should have registered with the Maharashtra Medical Council,

(3) should possess post-graduate degree in the respective branch from the University of Bombay or from any other University recognised equivalent thereto for admission to the post-graduate courses in super-specialties.

A candidate was not eligible for admission for the post-graduate course on passing the subject concerned at third attempt or sub-sequent attempt and passing the whole examination at fourth attempt. A candidate admitted for University diploma course in particular branch was not eligible for admission to other branch except the subject in which he/she has registered for diploma,. A candidate registration in one branch for degree or diploma was not ordinarily to be allowed registration in other branch except in super-specialties and lastly, a candidate cancelling the registration or whose registration has been cancelled due to non-compliance of requirements including non-payment of fees, etc. was not eligible for fresh registration in any subject. None of these eligibility clauses are relevant for our purpose so far as the present petition is concerned. We are concerned with Rule 4, the material portion of which reads as follows:--

'4 preference:

while selecting candidates for admission to the post-graduate courses, preference will be given in the following order:---

(a) Candidates applying for admissions at the parent institution.

(Note: Parent institution means the medical college at which the candidate has completed the under-graduate medical studies.)

(b) Candidates who have graduated from the other Municipal Medical College in Greater Bombay .

(c) Candidates who have graduated from the other constituent medical colleges of the University of Bombay .

(d) Candidates who have graduated from any University in the Maharashtra State.

(e) Candidates who have graduated from any other Indian University outside the State of Maharashtra.'

The other clauses of this rule have not been referred to at the hearing and are not relevant. Then there is Rule 5 which deals with determination of merit. that rule reads as follows :---

5. Order of merit :---

The order of merit shall be determined by the actual number of marks obtained in the subject as shown below at the University Examination duly modified with credit or debit marks as stated hereunder : ---'

The mode of giving credit or debit in a given case for the computation of corrected marks is not in dispute and, therefore, no reference to the details thereof is necessary.

7. Now, it is not in dispute that when the authorities considered the applications of candidates for admission to the port-graduate medical course in any one of the three colleges run by the Corporation of Greater Bombay , as a result of the preferences set out in Rule 4, preference is given over everybody else to candidates applying for admission from the parent institution itself. In other words, so far as G. S. Medical College is concerned, such of those candidates who have studies earlier for their undergraduate course at the said College will be given preference for the purposes of admission irrespective of the fact that there may be other candidates who have graduated from other municipal medical colleges in Greater Bombay or who have graduated from other medical colleges affiliated to the University of Bombay or who have graduated from any other university in the Maharashtra State or who have graduated from any other Indian University outside the State of Maharashtra and they have all secured larger number of marks than those secured by the candidates from the parent institution. It is by virtue of the operation of these preferences that the original petitioner found herself excluded from the admission to the G. S. Medical College. Undoubtedly the important question which would affect a large number of students is whether this rule setting out the preferences really amounts to a reservation is so excessive that it is violative of the provisions of Article 14 of the Constitution inasmuch as it results in undue discrimination in favour of the students of the parent institution and, therefore, bad.

8. At this stage we may also refer to the relevant rule which governed admissions to post-graduate course in Government Medical College and which rule was the subject matter of the decision in Deopujari's case. The relevant rule was Rule 5 which read as follows : ---

'(5) Selection of the students amongst those who have applied for admission to the post-graduate degree or diploma will be on the basis of the marks obtained in the subject at 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.

While selecting from amongst eligible candidates preference will be given to the students of that college i. e. who passed their Final M. B. B. S. Examination from that college in broad specialties and their ancillary discipline. In the case of super specialties, candidates who have qualified from other colleges may also be registered up to a limit of 50 per. cent of the vacant seats, when selected (while selecting ?) candidates for super specialties, candidates from all government colleges in Maharashtra shall be considered with each other on corrected marks (thus when a local candidate is of higher merit than the candidate from other Government colleges in Maharashtra, he will be preferred for registration keeping 50 per. cent quota for the non-local candidates to be filled in.).

9. It has to be stated here that after this part of the rule was struck down in Deopujari's case, the State Government framed Rule 5 as amended with effect from 13th July, 1982 reads as follows :--

'5. Selection of the students amongst those who have applied for admission to the post-graduate degree or diploma will be on the basis of the marks obtained in the subject at 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.

Distribution of the total seats available for post-graduate degree and diploma registration in an years will be as follows:---

(a) 10% of the total seats available for registration for post-graduate degree and diploma will be kept for the outside candidates who belong to medical colleges which are situated outside the jurisdiction of the University to which the institution is affiliated. Out of these seats 70% seats will be released by the Dean at the time of registration for January term and 30% for July tern.

(b) 10% of the total seats available for registration for post-graduate degree and diploma will be meet for the candidates who pass from the other institutions which are affiliated to the same University to which the institution giving registration is affiliated. Out of these seats, 70% of the seats will be released by the Dean for January term and 30% will be released for July term.

(c) 15% of the total seats in post-graduate degree and 25% of the total seats for post-graduate diploma registration available in a year will be reserved for in-service personnel such as MM & HS and teaching staff in Medical Colleges. Out of these 70% seats will be released by the Dean, at the time of registration for January term and 30% for July term vacant seats will be diverted to institutional candidates.'

A perusal of Rule 5, as amended by the State Government, will show that a new provision was made providing for distribution of total seats on the footing that 10% of the total seats available for registration for post-graduate degree and diploma were reserved for outside candidates who belonged to medical colleges which are situated outside the jurisdiction of the University to which institution was affiliated. A further reservation of 10% of the total seats was made for candidates who passed from other institutions which are affiliated to the same University to which the institution giving registration was affiliated. A further reservation of 15% of the total seats in post-graduate degree and 25% of the total seeks for post-graduate diploma registration were reserved for in-service personnel such as MM and HS and teaching staff in medical colleges. In other words, the infirmity of 100% preference, which was found by the Division Bench in Deopujari's case, was remedied by making a reservation for candidates coming from other universities and other States as well as other colleges. It was this rule which was challenged originally in Writ-Petition No. 1589 of 1982 by the petitioners for whom Mr. Pradhan appeared. However, since, as already pointed out,. the petition has become infructuous as both the petitioners have gone away out of India, we are really not concerned with the validity or otherwise of this rule and wee are not, therefore, required to adjudicate upon the challenge raised in Writ-Petition No. 1589 of 1982.

10. Before we go t the arguments which are advanced before us both on behalf of the appellant, the original petitioner and the Interveners, it is necessary to point out that undisputedly the effect of the preferences set out in Rule 4 is that applicants to post-graduate courses other than those from the relevant medical college would stand a chance of being admitted to the post-graduate courses only if there are any vacancies available after all the candidates from the relevant medical college who have applied for admission are admitted to the relevant post-graduate medical course and even as between the other applicants, the admissions will be given on the basis of the preferences in Clauses (b), (c), (d), and (e). The result is that the candidates who fall in each f the successive clauses of preferences would get admissions only if there are seats available after admitting the students falling within the preceding clause.

11. Mr. Joshi appearing on behalf of the appellants has contended before us that what is provided by Rule 4 is not a reservation at all. According to the learned Counsel, the operation of Rule 4 is intended merely to give a preference to the candidates of the parent institution and there is still a chance for candidates not belonging to the parent institutions to be admitted to the post-graduate medical course. The learned Counsel has contended that in the case of reserved quota, those belonging to the non-reserved categories can never be admitted in the seats for the reserved quota. This is not so, according to the learned Counsel, in the case of preferences and, therefore, the learned single Judge was in error in proceeding to apply the ratio of the decision in Deopujari's case to the facts of the present case because, according to the learned Counsel, the decision in Deopujari's case proceeds expressly on the footing that the effect of the relevant Government Rule 5 was that there was a 100% reservation. In other words, according to the learned Counsel. the decision of the Division Bench in Deopunjari's case having proceeded on completely erroneous footing that there is a 100% reservation, it was open to the challenge of being erroneous and could not, therefore, have been applied to the facts of the present case. This contention was one of the main reasons why the Division Bench, which heard the matter, thought it necessary to have the matter considered by a Full Bench.

12. Mr. Desai appearing on behalf of the Interveners has reiterated the submission of Mr. Joshi that the rule of preference is not a rule of reservation and that the basis on which the decision in Deopujari's case proceeds is on erroneous basis. Mr. Desai has contended, relying mainly on the decisions of the Supreme Court in the cases of Chitra Ghosh v. Union of India, AIR 1970 SC 36 and D. N. Chanchala v. State of Mysore, AIR 1971 SC 1972, that the authority which bears the financial burden of running the educational institution is entitled to lay down the criterion of eligibility and the sources of admission and when the sources are properly classified, it is not for the Courts to interfere with the manner and method of making the classification. Mr. Desai has also argued that different colleges and different universities have different standards of examinations, subjects and educational background and, therefore, students who pass out from M. B. B. S. Examinations from different universities cannot be said to belong to the same class deserving equal treatment. Indeed, according to the learned counsel, if students who pass different M. B. B. S. Examinations from different universities are treated equally, it would be a case of unequals being treated equally and, therefore, again there would be violation of Article 14 of the Constitution. So far as the case of the original petitioner is concerned, a distinction was sought to be pointed out to us that the subjects for the M. B. B. S. Examinations of the Bombay University and the Aurangabad University are different, that the total number of marks are different and a chart was given to us to show that having regard to the decentralised method of examination, the standards of valuation must be assumed to have differed. Relying on this chart, which is attached to the affidavit of the intervenor Dr. Vinit Shah, it was sought to be pointed out that in the Grant Medical College, while in the period April, 1977 to April, 1981 only one candidate obtained distinction in surgery and there were no distinctions in medicine and gynecology, after the valuation was decentralised between November, 1981 and November, 1982, there were a large number of distinction, namely, 15 in gynecology, 29 in surgery and 6 in medicine at the Third M. B. B. S. Examination in the Grant Medical College.

13. Mr. Singhvi, who appeared for the original petitioner, has vehemently argued that the present case was clearly a case of 100% reservation. According to Mr. Singhvi, the object of the rule providing for admission to the post-graduate medical courses was to have the best talent and candidates of merit and unless it is possible to show that these rules were intended to remove some existing inequality, which may be geographical, social or otherwise, and unless it is further shown that these rules have a nexus with the removal of inequality, the rules must be held to be bad and, according to the learned counsel, having regard to the 100% reservation which is contemplated by the rule, the rule must be held, on the face of it, to be suffering from a vice. It is not, therefore, necessary, according to the learned counsel, to go into the question whether in the actual working of the rule, there is some possibility of candidates not belonging to other colleges or other outside universities getting an admission. Heavy reliance is placed by Mr. Singhvi on the decision of the Supreme Court in Jagdish Saran v. Union of India, : [1980]2SCR831 . According to Mr. Singhvi, the decision in Deopujari's case takes a correct view and the learned single Judge was justified in applying the ratio of that decision to the facts of the present case.

14. Before we go to the decision in Deopujari's case, it would be proper to refer to the decision of the Supreme Court relying on which the Division Bench in Deopujari's case has taken the view that the original R. 5 framed by the Government for admission to the Government Medical College amounts to a 100% reservation because unless we ascertain the correct ratio of the Supreme Court decisions which have a bearing on the questions relating to rules regulating admission to post-graduate medical courses, it will not be proper for us to consider the question whether Deopujari's case has correctly decided or not.

15. The decision of the question as to the validity or otherwise of R. 4 in question will depend mainly on what is the scope of the power of the rule-making authority, namely the Municipal Corporation in this case which runs the Corporation colleges. Admittedly the Bombay Municipal Corporation finances the education imparted in these colleges. When such is the case, is there a power in the Corporation to specify by making rules the sources from which the Corporation to specify by making rules the sources from which the Corporation will admit students in its respective colleges? If it has the power to decide upon the sources from which it will feed its educational institutions by way of admitting students, unless there is some infirmity found in the exercise of this power, which has the effect of contravening any constitutional bar or which makes it open to the challenge of unreasonableness, it would be difficult to deny the Corporation the power to make a rule of the kind which is being questioned before us. The nature of the power and the extent of the power in such a case does not now seem to be open to debate since such a question has been repeatedly considered by the Supreme Court.

16. We may first usefully refer to the decision of the Supreme Court in Chitra Ghosh's case : [1970]1SCR413 (cited supra). In that decision, the Supreme Court was concerned with the validity of the reservation of seats in the Maulana Azad Medical College, Delhi, for

(i) sons/daughters of residents of Union Territories of Himachal Pradesh, Tripura, Manipur, Naga Hills, N. E. F. A. and Andaman including displaced persons registered in these territories and sponsored by the respective administrations,

(ii) sons and daughters of Central Government servants posted in Indian Missions abroad,

(iii) cultural scholars,

(iv) Colombo Plan scholars,

(v) Thailand scholars,

(vi) Jammu & Kashmir State scholars.

One of the challenges made to these rules was that provision for reservation of seats was institutional. Ruling out the challenge on the ground of violation of Art. 15(1) and Art. 29(2) of the Constitution, the Supreme Court held that the Union Territories were well known to be comparatively backward and with exception of Himachal Pradesh, they did not have any medical college of their own. As regards the sons and daughters of the Central Government servants posted in Indian Missions, the Supreme Court held that it was equally well known that due to exigencies of their service, these persons were faced with a lot of difficulties in the matter of education and apart from the problems of language, it was not easy or always possible to get admissions into institutions imparting medical education in foreign countries. The provision for other categories of students was also held to be valid on the ground that the classification in all these cases was based on an intelligible different which distinguishes them from the group to which the appellants belonged. Observations of some importance which have been made by the Supreme Court in this decision are that it was not possible to throw the admissions open to decide from all over the country and the Government cannot be denied the right to decide from what sources the admission would be made. The following para is instructive:

'9. It is the Central Government which bears the financial burden of running the medical college. 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 assessments 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.'

(Underlying ours.)

It is clear from the above paragraph that the relevant rule in that case, which expressly provided for certain categories of student's from which alone students were to be selected for admission, was held to be valid and this was held to be a matter relating to policy and not open to be questioned by Courts as long as such sources are properly classified on some reasonable basis. In the same case, the Supreme Court pointed out that the main purpose of admission to a medical college is to impart education in the theory and practice of medicine and as long as there is a rational relation of the differentia on which the classification has been made with the object, the classification cannot become bad. Paragraph 10 of the judgment reads as follows:-

'10. The next question that has to be determined is whether the differentia on which a classification has been made has rational relation with the object to be achieved. The main purpose of admission to a medical college is to impart education in the theory and practice of medicine. As noticed before the sources from which students have to be drawn are primarily determined by the authorities who maintain and run the institution, e. g., the Central Government in the present case. In P. Rajendran v. State of Madras, : [1968]2SCR786 , it has been stated that the object of selection for admission is to secure the best possible material. This can surely be achieved by making proper rules in the matter of selection has to be confined to the sources that are intended to supply the material. If the sources have been classified in the manner done in the present case it is difficult to see how that classification has no rational nexus with the object of imparting medical education and also of selection for the purpose.'

(Underlying ours.)

17. The above observations of the Supreme Court, therefore, clearly lay down that once the sources have been properly laid down and there is a reasonable basis for choosing the sources, such classification will good because it has a rational relation or nexus with the object of the rules, namely, providing for medical education.

18. It is no doubt true, as contended by Mr. Singhvi, that so far as medical education is concerned, the object must be to choose the best talent available. The real question, however, is what is the field from which or out of which you must choose this best talent. As pointed out by the Supreme Court in Chitra Ghhos's case : [1970]1SCR413 , such admissions cannot be thrown open to students all over the country and, therefore, the best talent which will have to be chosen will be from amongst the sources which are identified by the authority which finances imparting of medical education. The same view has been reiterated by the Supreme Court in Chanchala's case : AIR1971SC1762 . In Chanchala's case, passing of a Pre-University course examination made a candidate eligible for admission to the pre-professional course in Bangalore and Mysore and Universities and to the B. Second. Part I course leading to M. B. B. S. in the Karnataka University. The common qualification for eligibility in both the said courses in the three universities was the passing of the P. U. C. Examination. The rule prescribing qualification for eligibility provided that the candidate must have passed the P. U. C. Examination or the XI standard of the Higher-Secondary Schools Examination of any University established by law in India or of any institution recognised by the State Government, or an equivalent examination with certain specified subjects. There were these two categories of candidates who alone were eligible for selection :

(1) Those who had passed the P. U. C. Examination or equivalent examination, and

(2) those who were graduates, having graduated with the optional subjects specified therein.

Rule 2 (2) provided that out of the available number of seats, after deducting the number of seats set apart under Rule 4, 80 per cent of the seats were open for those who had passed the P. U. C. Examination and 20 per cent were for those who were graduates. Under Rule 4, 60 seats were set apart for different categories of persons such as students from Union territories and States where there were no medical colleges, students from relatively less developed Commonwealth countries, cultural scholars and students under T. C. S. of the Colombo Plan and Special Commonwealth Assistance Plan, students from Nepal, repatriates from Burma, Ceylon, Mozambique, etc. The effect of these rules was that the qualification for selection to the pre-professional Course, as it was known in Mysore and Bangalore Universities, or B. Sc. Part I Course in the Karnataka University, was that the candidate had either passed the P. U. C. Examination or was a graduate who had the aforesaid optional subjects. The effect of the rule also was a graduate who had passed the P. U. C. Examination held by a particular university became eligible by virtue of Rule 9 (1) for admission to the medical college or college affiliated to that university, though the selection committee had discretion to allot seats up to 20% of the seats in the college affiliated to a university, to students passing from colleges affiliated to any other university in the State or even elsewhere in India. The question which fell for decision before the Supreme Court was whether Rule 9, which prescribes university-wise distribution of seats, resulted in discrimination because it was contended that it lays down a classification which is neither based on any intelligible differentia nor had any natural nexus with the object of the rules, and reliance was placed on P. Rajendran v. State of Madras, : [1968]2SCR786 , in which a districtwise division of seats was held to be banned. The Supreme Court distinguished the decision in Rajendra's case and A. P. Chettiar v. State of Tamil Nadu, : AIR1971SC2085 , on the ground that in both the cases, what was mainly objected to was that the selection would have to be made on the basis either of the place of work or residence and the candidate was confined to the medical college at or nearest to such a place and such a basis for selection was held to have had no reasonable nexus with the object of the rules, namely, to select the most meritorious amongst the candidates to have the advantage of such education. Upholding the power to distribute the seats university-wise, the Supreme Court observed in para 22 as follows:--

'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 these rules are not inconsistent with the university statutes and regulations and do no suffer from infirmities, constitutional or otherwise ......... 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 districtwise or unitwise 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 .........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 those 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 in its own colleges and to decide the sources from which admission would 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 .............................. 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.'

(Underlying ours.)

19. The observations will show that the Supreme Court has clearly recoginsed that providing of facilities for advance training of students of the same educational institution is a good object for which those who run the educational institution can make rules providing that students from the same educational institution will be given preference for admission for courses in further studies. In the same decision, the Supreme Court again reiterated the view taken in Chitra Ghos's case : [1970]1SCR413 that the Government is entitled to lay down sources form which admissions should be made. In para 23, the Supreme Court observed as follows :--

'As aforesaid, the Government is entitled to lay down sources form 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.'

20. Thus if the decision in Chanchala's case : AIR1971SC1762 is properly analysed, the following proposition follow ---

(1) Merely because the candidate form the same university or educational institution having lesser marks is admitted in preference to one having higher marks form another university or another college, it does not mean that a less meritorious candidate has been admitted and consequently, there is no departure from the principle that the best talent should be admitted to the post-graduate course.

(2) There is nothing wrong if a preference is given while admitting students of the same university or students of the same college and a rule for making such a provision cannot be considered as discriminatory.

(3) If a rule provides for a preference to a student of the same college as contrasted with other students, then such a classification has a reasonable nexus with the object of catering to the needs of candidates who would naturally look to their university or college to provide for opportunity for advanced training in technical subjects such as medical education.

(4) An authority which bears the financial burden of running the colleges is entitled to lay down the criteria for admission to its own college and to decide the sources from which the admission would be made, provided that such classification is not arbitrary and has a rational basis and nexus to the object of the rules.

(5) So long as there is no discrimination as between persons from the same source, the validity of such a rule is not open to challenge.

21. As a matter of fact Chanchala's case is, in our view, a complete answer to the argument of Mr. Singhvi. When the rules lay down a source from which admissions are to be made, such rules cannot be considered as rules providing for any reservation. If such rules are made with the express object of providing that students from the same college should have the facility of getting their higher education in the same college and should, therefore, be given preference, then they would not be open to challenge as unreasonable or arbitrary. The advisability of such a course is not only recognised by the Supreme Court in Chanchala's case but also in the later decision of Jagdish Saran v. Union of India, : [1980]2SCR831 , where in a separate but concurring judgment Justice Pathak has observed as follows:--

'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 ahd become familiar with the teaching techniques and standards of scholarship. and has adjusted his responses 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 year 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 our 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.'

22. The advisability of the stream of education being continued in the same college appears to be highlighted even in the recommendations on post-graduate medical education made by the Medical Council of India. We have before us a publication of the Medical Council of India which contains these recommendations and there is a printed endorsement thereon to the effect that 'Recommendations on Postgraduate Medical Education are approved as 'Regulations' under Section 33, Indian Medical Council Act, 1956, by the Government of India.' We have no reason to doubt the correctness of this endorsement. The Indian Medical Council Act specifically deals with standards of post-graduate medical education in S. 20 and provides for constitution of a Post-Graduate Medical Education Committee to make the necessary recommendations. Sub-section (5) of Section 20 provides as follows :--

'The views and recommendations of the Post-graduate Committee on all matters shall be placed before the Council; and if the Council does not agree with the views expressed or the recommendations made by the Post-graduate Committee on any matter, the Council shall forward them together with its observations to the Central Government for decision.'

At page 10 of its publication under the caption 'Evaluation of merit', it is observed 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.'

Leaving aside the alternative method of a common entrance examination, the recommendation made with regard to evaluation of merits appears to suggest (that the performance not only at the M. B. B. S. Examination but as an internee or as a houseman must also be considered and the report of the teachers with regard to the said candidate must also be considered. The advisability of this criteria for determining the merit can hardly be disputed. But this recommendation presupposes that the performance of the candidate concerned is throughout monitored and is taken into consideration for determining his merit. This can properly be done only when a student is to be admitted to the same institution.

23. There is one more decision which needs consideration and on which heavy reliance has been placed by Mr. Singhvi. That is the decision in Jagdish Saran v. Union of India, : [1980]2SCR831 , which appears to be the foundation of the view which is taken by the Division Bench in Deopujari's case. It is necessary, therefore, to consider the decision in Jagdish Saran's case in a little detail.

24. One very important circumstance which has to be highlighted in Jagdish Saran's case is that there was a common entrance test which the candidates had to take before they could be considered for admission to the post-graduate medical course. No such common entrance test was provided by the rules which were relevant in Deopujari's case. The petitioner institution that case wanted to take a post-graduate degree in dermatology. At the entrance test he had secured a sufficient number of marks, but he was not given admission because of a rule reserving 70% of the seats at the post-graduate level for the students who would obtain the M. B. B. S. degree from the University of Delhi. The remaining 30% of the seats were open to all including graduates of Delhi. Earlier the reservation for Delhi University graduates was 48%, but in April 1978, the reservation was increased to 70%. The petitioner's father was a Central Government servant and was transferred to Delhi. The question was whether the 70% institutional quota was so disproportionate as to be unreasonable and violative of Articles 14, 15 and 16 of the Constitution. It was this question which fell for decision before the Supreme Court. At the very threshold it must be pointed out that the Supreme Court did not strike down the reservation of 70% at all because the petitioner had not been able to show by the necessary data that the reservation was excessive. However, in the course of the judgment, the law with regard to the reservation was discussed. In the course of the discussion, the Supreme Court observed that prima facie equal marks must have equal chance for medical admission and a university-based favoured treatment would not be permissible. The Supreme Court pointed out that if a region is educationally backward and woefully deficient in medical services, there occurs serious educational and health-service disparity for that human region which must be redressed by an equality-and-service minded welfare State and the purpose of such a policy is to remove the existing inequality and to promote welfare-based equality for the denizens of the backward regions. The Supreme Court pointed out that reservation must be kept in check by the demands of competence and observed:

'A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit -- such is the dynamics of social justice which animates the three egalitarian articles of the Constitution.'

It was then pointed out in para 24 that backward regions and universities in consequence are miles away from forward cities with sophisticated institutions. The former, for equalisation, need crutches and extra facilities to overcome injustices. The whole discussion in Jagdish Saran's case thus proceeds on the footing that as between all candidates who were subject to common central test, there was a 70% reservation made only for the students of the Delhi University. There can be no doubt that in effect, this was the reservation and could never be called a preference of the kind provided by the present rules in question. It was in that context that the Supreme Court in para 28 posed a question:

'So we must enquire whether 70% reservation for Delhi graduates which is prima facie discriminatory can be extricated by any amelioratory constitutional logic or ethic implicit in Arts. 14 and 15.'

25. The decision in Jagdish Saran's case must, therefore, be read in the light of the peculiar facts of that case where as between persons belonging to the same class constituted by those who had appeared for the common entrance examination, a further reservation of a large quantum of 70% was sought to be made which, according to the Supreme Court, was prima facie discriminatory and yet, it has to be remembered, the said reservation was not struck down. The observations in para 39 were also relied upon by Mr. Singhvi in support of the proposition that a candidate who gets more marks must be preferred to one who gets less marks. In that paragraph, the Supreme Court observed:--

'If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. The proposition has greater importance when we reach the higher levels of education like post-graduate courses.'

Here again, it has to be remembered that for determination of comparative merit a common entrance test was held and one getting higher marks at such a test would be a more meritorious candidate than one who got less marks at the same common entrance test. When it was said that a candidate, who got more marks, was entitled to preference for admission, those observations are obviously made in the context of the facts of that case, that is, all the candidates had appeared for the entrance test and their marks obtained at the entrance test were alone determinative of the merits of the candidates concerned. All the candidates thus constituted one class and yet reservation of 70% was made for Delhi University students. As already pointed out, in spite of this apparent discrimination between students of Delhi University and other students, the Supreme Court wen on to find that reservation for Delhi from the graduates was not that invidious because the students were from families drawn from all over India and they were sons and daughter of persons who were willy-nilly pulled into the capital city for reasons beyond their control and, therefore, the reservation was qualitatively different. (Para 46)

26. An important aspect that students of one university cannot easily be admitted to another university was also highlighted by the Supreme Court in para 47 where it was observed as follows :--

'There is another pathological condition affecting 'medical admissions' which is at the back of the desperate 'satyagraha' of the students and this factor tilts the scales a great deal. Counsel for the University, supported by fragmentary material pointing to a pan-Indian tendency, argued that all the country round every university bangs, bars and bolts the doors of medical admission to outsiders and if Delhi alone were to keep its doors hospitably ajar where are the Delhi graduates to go for higher studies if squeezed out by All-India competition? If reservation is evil, the embargo every where must be lifted, lest evil should beget evil. So long as other universities are out of bonds for Delhi graduates, exposure to all-India competition becomes intense and prejudices their chances. This indirect, real yet heavy handicap creates an under-current of discrimination and cannot be wished away and needs to be antidoted by some percentage of reservation or other legitimate device.'

In para 48 Mr. Justice Krishna Iyer went on to observe that another consideration which justified some measure of reservation is the desire of students for institutional continuity in education and parents, pupils and teachers will usually prefer such continuity and it has its own value.

27. The decision read as a whole would show that institutional reservation was not wholly treated as tabooed. It is apparent that the decision in Jagdish Saran's case : [1980]2SCR831 , when it is read in the light of two earlier decisions in Chitra Ghosh's case : [1970]1SCR413 and Chanchal's case ( : AIR1971SC1762 would be wholly inapplicable to a case where what is in question is not a reservation, but what is in question is the legality and validity of a rule made by an authority running the colleges specifying the sources from which admissions will be permitted in order of preference.

28. The argument of Mr. Singhvi, therefore, that no imbalances has been shown in the instant case, no inequality has been shown in the instant case, no inequality has been shown in the instant case, and consequently there could not have been a 100% reservation in favour of students belonging to the parent institution cannot be supported by the decision in Jagdish Saran's case.

29. It is now proper at this stage to refer to the decision in Deopujari's case. Indeed the decision commences with the observations that original Rule 5 framed by the Government, which is more or less substantially identical to Clause (a) of Rule 4 of the Corporation Rules in question, provided for a 100% reservation. The judgment opens as follows:--

'The question which falls for consideration in this writ petition is whether the State Government can reserve all the seats for the post-graduate courses in Medicine in any college run by it for the students who have passed their final M. B. B. S. examination from that very college.'

It is this question which the Division Bench has answered in favour of the original petitioner and against the State Government, relying on the decision in Jagdish Saran's case. After considering the decision in Rajendran's case : [1968]2SCR786 , A. Periakaruppan's case : [1971]2SCR430 , Chanchala's case : AIR1971SC1762 and Jagdish Saran's case : [1980]2SCR831 , the Division Bench in para 14 of the judgment no doubt held that the classification based on the circumstance of students passing their final M. B. B. S. Examination from a particular college is based on intelligible differentia, but according to the Division Bench, this classification has no rational nexus with the object of the rules, namely, to secure the best possible talent and material for admission in the Government Medical College. The Division Bench took the view that the classification, if stretched to a blanket ban or total reservation or preference, would have no rational relation with the object which is sought to be achieved by the Rules, and while there could be no objection to the institutional preference or reservation up to a certain degree or measure, total reservation would not be valid. This conclusion is no doubt supported by the learned Advocate-General and indeed we quite see that he had no other alternative because the Government had accepted this decision and amended the Rules. As already pointed out, the Division Bench does not seem to have considered the fact that the rule like the one which was before it did not in fact provide for reservation. What was intended was to nominate a source from which admissions were to be made, a course which is quite permissible having regard to the decisions of the Supreme Court referred to above. It is not in dispute that even in Deopujari's case, as between persons belonging to the same source, there was no allegation of discrimination. We, therefore, find that there is a clear infirmity in the view taken by the Division Bench inasmuch as the rule like the one which was considered by the Division Bench could not be treated as a rule providing for total case cannot, therefore, be said to lay down the correct law.

30. It is no doubt true that the decision in Deopujari's case was further followed by another Division Bench of which one of the Judges was a member of the Division Bench in Deopujari's case. That decision is in Jitendra Kumar v. State of Maharashtra 1982 Mah LJ 764. All that is done in that case is that the ratio in Deopujari's case has been extended to that case. We have already pointed out the infirmity in the decision in Deopujari's case and we need not deal separately with the decision in Jitendra Kumar's case.

31. In the judgment under appeal, the learned single Judge has merely applied the decision in Deopujari's case which obviously was binding on him, being a decision of a Division Bench. No independent argument seems to have been advanced before the learned Judge.

32. We may point out that giving preference to students of the same institution is not an unusual pattern of giving admissions to the post-graduate course in medicine. Rules made by the Gujarat University are an illustration of thsi. The relevant rule reads as follows :--

'The selection of post-graduate Registrations where Residency system exists will be made by the respective Medical Colleges and Post-graduate institutions in order of preference as under :

(1) For merit list the same academic year will be considered.

(2) Preference should be given to the candidates of their own institutions from amongst the students of the Gujarat University.

(3) Graduates of any other University of Gujarat State.

(4) Graduates of any other statutory Indian University recognised by the medical council of India.'

33. Having regard to the view which we have taken, the appeal will have to be partly allowed to the extent that the view of the learned single Judge holding that Rule 4 was invalid is set aside.

34. It is not necessary for us to consider the argument advanced by Mr. Desai that if students of the Bombay University or the students of the Corporation Medical Colleges are to be treated on the same footing as students who have obtained M. B. B. S. degrees from various universities of India, it would result in unequal being treated equally and there would, therefore, be perse discrimination. That argument, in our view, is not relevant because we have construed the rule in question as one not providing for any reservation but for providing a preference for admission as between persons from different sources. We need not also consider the argument of Mr. Desai based on certain figures that in some years notwithstanding the preference clause students from other universities have got admission in different M. D. courses and, therefore, the preference rule cannot be construed as one providing for 100% reservation.

35. The appeal is thus partly allowed. The judgment of the learned single Judge in so far as it strikes down the rule in question is set aside. This does not, however, affect the admission given to the original petitioner. In the circumstances of the case, there will be no order as to costs. So far as the two other petitions in which Mr. Pradhan appears, namely, Writ Petition No. 1589 of 1982 and Writ Petition No. 1741 of 1982 are concerned, both are infructuous. Mr. Pradhan is permitted to withdraw Writ Petition No. 1741 of 1982. Rule discharged in Writ Petition No. 1589 of 1983; no order as to costs.

36. Order accordingly.


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