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Jayesh A. Joshipura Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR761
AppellantJayesh A. Joshipura
RespondentState of Gujarat and ors.
Cases ReferredM. R. Balaji and Ors. v. The State of Mysore and Ors.
Excerpt:
- - course even though those students are similarly situated like other students who have passed the qualifying examination held during the period referred to in the rules. tanna contended that in order to select best talents for admission to m. tanna submitted that the only reasonable nexus to the object sought to be achieved by the sub-classification would be chanalising best talents for being drafted to the first m. jadeja further contended that sub-classification of students who have passed the qualifying examination during the relevant period was a reasonable classification having a direct nexus to the object sought to be achieved and that object was to weed out those students who had passed the said qualifying examination in the previous years and who had already got one chance.....s.b. majmudar, j.1. in this petition under article 226 of the constitution, read with article 14 thereof, the petitioner who has passed higher secondary examination conducted by the gujarat secondary education board, has challenged the action of the respondents in not considering the case of the petitioner for being admitted to 1st m. b.b.s. course conducted at b. j. medical college, ahmedabad from june 1982. respondent no. 3 who is the ddean of the medical college has taken the view that the petitioner is not eligible to be considered for admission to the said course in view of rule 1 of the rules for admission to first m.b.b.s. course and 1st b.d.s. course at government medical colleges as the petitioner cannot be said to have passed the qualifying examination for admission to the.....
Judgment:

S.B. Majmudar, J.

1. In this petition under Article 226 of the Constitution, read with Article 14 thereof, the petitioner who has passed higher secondary examination conducted by the Gujarat Secondary Education Board, has challenged the action of the respondents in not considering the case of the petitioner for being admitted to 1st M. B.B.S. course conducted at B. J. Medical College, Ahmedabad from June 1982. Respondent No. 3 who is the Ddean of the medical college has taken the view that the petitioner is not eligible to be considered for admission to the said course in view of Rule 1 of the rules for admission to first M.B.B.S. course and 1st B.D.S. course at Government medical colleges as the petitioner cannot be said to have passed the qualifying examination for admission to the concerned course as defined by the said rule.

2. In order to highlight the grievance of the petitioner in this petition, a few relevant facts must be noted at the outset. The petitioner has passed the higher secondary examination taken by the Gujarat Higher Secondary Education Board in April 1981 from science stream. His result was declared in July 1981 and he secured 511 out of 800 marks which amounted to 71%. For the purpose of admission to 1st M.B.B.S. course, the marks in theory of Physics, Chemistry and Biology and marks of Mathematics are taken into consideration. In these papers, the petitioner secured 330 marks out of 450 which amount to 73% On the basis of the aforesaid result, the petitioner made application for joining medical course in July 1981. But because there were more candidates above him and as admissions were closed at higher percentage of marks obtained by the concerned appellants for the said course in July 1981, the petitioner could not get admission in the medical course in July 1981. The petitioner again applied for being admitted to the medical course starting from July 1982 that is - next year. But in view of the fact that Rule 1 of the rules for admission to first M.B.B.S. course or first B.D.S. course at Government colleges as framed by respondent No. 1 restricted the entries to medical course beginning from June 1982 to only those students who had passed the qualifying examination i.e. Gujarat Higher Secondary Examination in either April May 1982 or earliest in October 1981, the petitioner who had passed the said examination prior to October 1981 was not found eligible to apply for admission to the medical course beginning in June 1982. As per the admission rule, before a candidate could be held eligible to apply for admission to such a course, he had to pass the qualifying examination for admission as conducted by the Gujarat Secondary Education Board in March/April of the current year (i.e. the year in which the concerned course started) or in October/ November of the preceding year. According to the aforesaid rule therefore, the student v ho has passed the qualifying examination i.e. higher secondary certificate examination in science stream in March/April 1982 or at the earliest October/November 1981 could apply for admission to the first M.B.B.S. course that was to start from July 1982. As the petitioner has passed the said examination in April 1981, in the light of the rule and the definition of qualifying examination therein, the petitioner's case was kept out of consideration. It is in these circumstances that the petitioner is driven to file the present petition. His main grievance is that Rule 1 of the rules for admission as framed by way of executive instructions by respondent No. 1 and which has defined qualifying examination by restricting it to only two examinations, one in the current year and only one examination in the previous year, is highly discriminatory and violative of the guarantee of Article 14 of the Constitution, as by the said rule, equals are treated inequally. That the qualifying examination for admission to 1st M. B. B. S course is higher standard certificate examination, science stream. All students who have passed the said examination in the past would form one class. By an artificial demarcation the students who have passed the said examination prior to March/April of the concerned year where the course is to start and October/November of the preceding year, are all excluded from consideration, while selecting meritorious students for being admitted to the first M.B.B.S. course. It is, therefore, contended by the petitioner that the action of the respondents in rejecting entry of candidates for being considered for admission to first M.B.B.S. course by limiting the scope of qualifying examination to only last two examinations immediately preceding the starting of the concerned course in the given year, is patently arbitrary and irrational. Under these circumstances, the petitioner has prayed for a suitable writ, order or direction of this Court for declaring Rule 1 of the rules for admission to first M. B. B. S course or first B.D.S. course at Government medical colleges laying down test for qualifying examination to be ultra vires Article 14 of the Constitution. The petitioner has also prayed for consequential relief on the basis of the said declaration.

3. By an amendment to the petition, respondent Nos. 4 to 13 were added as parties as per Court's order dated 18-8-1982 passed on Civil Application No. 2892 of 1982. These respondents are the students who are already admitted to the first M.B.B.S. course starting from July 1982 and to which course the petitioner claims admission.

4. Petition was admitted to final hearing last year and the Rule was made returnable on 15-12-1982. Mr. D R. Bhatt who appeared for respondent Nos. 1, 2 and 3 at that stage conceded that if there was one vacancy existing in the concerned first M.B.B.S. course, it would be kept vacant. I am told that the said order was continued thereafter till final disposal of this petition. This petition reached final hearing before me on 28-6-1983. Mr. B. P. Tanna for the petitioner made his submission in support of the petition. Mr. Bukhari with Mr. Jadeja appeared for respondent Nos. 1, 2 and 3 who are State of Gujarat. Director of Medical Education and Research and Dean, B. J Medical College, Ahmedabad, respectively. No one appeared for respondent Nos. 4 to 13.

5. The petition is resisted by respondent Nos. 1, 2 and 3 by filing affidavit-in-reply. Affidavit-in-rejoinder has been filed by the petitioner. I will refer to the relevant averments in the affidavits of the respective parties in later part of this judgment.

6. Mr. Tanna submitted that rules for admission to the first M.B.B.S. course and first B.D.S. course at Government medical colleges and Dental colleges, Ahmedabad are executive instructions issued by respondent No. 1. These rules are annexed at Annexure B to the petition. Mr. Tanna contended that the impugned Rule 1 has arbitrarily restricted the scope of qualifying examination for admission to only those examinations which are conducted in March/April of the current year or in October/November in the preceding year and consequently, those students who passed the qualifying examination earlier thereto would not get any opportunity of being considered for admission to the concerned M.B.B.S. course even though those students are similarly situated like other students who have passed the qualifying examination held during the period referred to in the rules. Mr. Tanna contended that in order to select best talents for admission to M.B.B.S. course the only relevant criterion would be the passing of higher secondary certificate examination in science stream by the concerned students. That whether he passed the said examination at either of the two examinations held immediately preceding the starting of the concerned M.B.B.S. course or whether he had passed the said examination in any previous years would be totally irrelevant for finding out the talent of the concerned student. That all the students who had passed the said examination at any time in past would form one class. By artificially sub-dividing the said class and excluding those students who had passed the said examination prior to March/April of the same year or October/November of the preceding year amounted to meeting out a hostile discriminatory treatment by the authority to the excluded students and that there was no rational basis underlying the said sub-classification. Mr. Tanna submitted that the only reasonable nexus to the object sought to be achieved by the sub-classification would be chanalising best talents for being drafted to the first M.B.B.S. course. That by restricting consideration of the aspirants for admission to first M.B.B.S. course to only those limited number of students who had passed the qualifying examination during the specified period had no nexus whatsoever to the object sought to be achieved and on the contrary, such sub-classification was flying in the face of the real object sought to be achieved by such classification.

7. Mr. Tanna in this connection heavily relied upon a Division Bench judgment of this Court delivered in Special Civil Application No. 965 of 1972 decided on 5-7-1972 by B. J. Divan and M. U. Shah. JJ. (as they then were). He submitted that the aforesaid decision clinches the issue. He submitted that in the said decision, the Division Bench of this Court had an occasion to consider the then existing rules for admission to pre-medical course conducted in various medical colleges in this State. While upholding the validity of the said rules, the Division Bench had taken the view that the students who had passed the qualifying examination in any previous years would form one class and consequently, they can all be considered for admission to the concerned pre-medical course. Mr. Tanna submitted that after the Division Bench judgment of this Court, the impugned rules have been framed which have given a go-bye to the criteria laid down by this Court in the aforesaid decision and have flown in the face of the decision of this Court. In short, according to Mr. Tanna, in view of the aforesaid decision, any rule which restricts entry to such course by limiting the scope of the qualifying examination to only two examinations conducted within the relevant time would be violative of the guarantee of Article 14 of the Constitution and would be a still-born one. Mr. Tanna, in order to support his contention also placed reliance on a later Division Bench judgment of this Court in Special Civil Application No. 2823 of 1982 and group decided by A. M. Ahmadi and R. C. Mankad, JJ. on 20-8-1982 wherein Ahmadi, J. spoke for the Division Bench. The said decision is reported in : AIR1983Guj173 while Mr. Jadeja for respondent Nos. 1 to 3 vehemently contended that the impugned rules were framed by the first respondent in the light of the directions contained in the Division Bench judgment in Special Civil Application No. 965 of 1972 and that not only the said rules were not de hors the guidelines and the directions contained in the said judgment but they strictly followed the guidelines issued in the said judgment and the said rules were framed in due compliance with what was observed by this Court in the said decision. Mr. Jadeja also placed reliance on a latter decision of the Division Bench of this Court in Letters Patent Appeal No. 68 of 1983 decided by B. K. Mehta and Qureshi, JJ. on 5/6-4-1983 wherein B. K. Mehta, J. spoke for the Division Bench. Mr. Jadeja contended that it was always open to the respondent - State to restrict entry to a given academic course with a view to seeing that there may not be unnecessary conjestion in the course and it was a matter of executive policy based on relevant considerations and consequently, no grievance can be made by the petitioner regarding the same. Mr. Jadeja further contended that sub-classification of students who have passed the qualifying examination during the relevant period was a reasonable classification having a direct nexus to the object sought to be achieved and that object was to weed out those students who had passed the said qualifying examination in the previous years and who had already got one chance of being considered for admission at the concerned course and had been elbowed out by better qualified students standing higher up in the merit list at the relevant time when they were considered for admission to the concerned course. That if the petitioner's contention was accepted, those students who did not stand any chance on merits when they competed for admission to the M.B.B.S. course in the previous years would get further chances not once but any number of times as and when they chose to apply for admission at the successive courses starting in successive years and that would result in displacing the chances of fresh students who would be competing for admission to such courses after passing the relevant qualifying examination held immediately before the starting of the concerned course. Thus, old students who had passed the examination much earlier and who had been unsuccessful in getting admission in previous years courses would continue to remain in the field for competition year after year and would displace fresh students who would be denied effective opportunity even once for being considered for admission to the concerned medical course. Such a result would be completely unjust and unfair and it was precisely with a view to avoiding such unjust and unfair result that the first respondent took a policy decision which was based on the aforesaid germane consideration and that there was nothing irrational or discriminatory in the said executive policy decision. Mr. Jadeja, therefore, contended that this Court in exercise of its jurisdiction under Article 226 of the Constitution ought not to interfere with the aforesaid just and fair policy decision taken by the first respondent in that connection.

8. Before I deal with the merits of the rival contentions voiced on behalf of the respective parties, it is necessary to carefully note the real scope and ambit of the decision of the Division Bench of this Court in Special Civil Application No. 965 of 1972 as both the sides have relied upon the ratio of the said decision to support their respective contentions.

9. The question before the Division Bench consisting of B. J. Divan and M.U. Shah JJ. (as they then were) in the above case was as to whether the students who had passed the Pre-University science examination prior to 1972 could be admitted to pre-medical courses and whether the admission rules permitting them to be so considered for admission were violative of the guarantee of Article 14 of the Constitution. The factual background of the controversy centred round the circumstance that from the academic year commencing from June 15, 1972, the Gujarat University introduced pre-medical course to be conducted by the medical colleges affiliated to the Gujarat University. Prior to 1972, admission to the medical colleges was in the first M.B.B.S. class after passing the first year science examination of the Gujarat University. A student seeking admission to the M.B.B.S. course had to pass either the Inter-science examination or the first year science examination. However, with the introduction of the three-year degree courses what was formerly known as Inter-Science examination was designated as first year B.Sc. examination and what was formerly known as first year science examination was captioned us Pre-University science examination. in the year 1972, with the introduction of pre-medical course, which was required to be conducted by the medical colleges affiliated to the Gujarat University, in order to get admission to the M.B.B.S. courses, a student had to pass the pre-medical course examination and in order to get admission to the pre-medical course, he had to pass Pre-University science examination. Thus, if a student desired to join the medical college, he had to join the pre-medical course which had been started from the year 1972. In the same manner, a student seeking admission in the engineering faculty of the Gujarat University, had to join the pre-engineering course after passing pre-science examination and this system of pre-engineering course was started about five years earlier but the pre-medical course had been started only in 1972. Apart from the eligibility laid down by the Gujarat University authorities, each of the two medical colleges in Ahmedabad city viz. B. J. Medical College, Ahmedabad which is run by the Government and the Municipal Medical College, which is run by the Municipal Corporation, had laid down their own rules for admission to the pre-medical course. Since these rules had to conform to the requirements of the Ordinance enacted by the University authorities, both these colleges prescribed that the qualifying examination for admission to the pre-medical course should be Pre-University science examination of the Gujarat University or of the South Gujarat University. As per these rules, the candidates who had passed the Pre-University science examination of the University had to apply in appropriate form and the external marks obtained at the qualifying examination in five subjects, viz. Physics, Chemistry, Biology, Mathematics and English were to be taken into consideration. The petitioners who had filed the above petition before this Court nursed a grievance that not only the students who passed the Pre-University science examination in the year 1972 had been allowed to apply in order of merit to secure admissions to the two medical colleges in 1972, but also the students who passed their Pre-University science examination in any of the earlier years i.e. in 1969, 1970 or 1971 were also allowed to apply for and in fact had been granted admission to the pre-medical course by the authorities of both these medical colleges. And further, according to the petitioners, by thus granting admissions to students who passed their Pre-University science examination in earlier years, the authorities of the two colleges were violating the rules prescribed by themselves for admission to pre-medical course to the two colleges and further according to the petitioners, insofar as these rules permitted the students who passed their Pre-University science examination in earlier years to apply for and secure admission to pre-medical course commencing from June 1972, they were violative of Article 14 of the Constitution of India since by these rules, if the interpretation placed by the medical college authorities on the rules was accepted, it would amount to treating unequals as equals. The petitioners contended that those students who had passed the Pre-University science examination in earlier years could not be treated to fall in the same category or class in which the students who had passed the pre-medical examination in 1972 itself fell and consequently those rules not confining the contest for admission to students passing the qualifying examination in 1972 itself and in throwing open the contest for students who might have passed the qualifying examination in earlier years had discriminated against the petitioners by treating them on par with other students who had passed the examinations earlier when both these categories of students formed different classes. Therefore, the question before the Division Bench of this Court was as to whether the students who had passed the qualifying examination in earlier years were necessarily forming a separate class as compared to those who had passed the qualifying examination in the given year, and if not, whether the rules treating all of these alike could be said to be violative of the guarantee of Article 14 of the Constitution. One contention that was canvassed before the Division Bench on behalf of the petitioners was on the interpretation of Rule 6. For the purpose of this petition, that contention is not relevant. The second contention, however, was that if it was held that the qualifying examination would include qualifying examination in the earlier years, considering the rules of admission as framed by B. J. Medical College and the Municipal Corporation Medical College, then these rules would be violative of Article 14 inasmuch as unequal persons would be treated equally and lack of proper classification itself would violate the right to equality.

10. On the interpretation of the rules, this Court took the view that admission rules as they stood would include the students who might have passed the qualifying examination in earlier years. That decision clearly raised a question as to whether these rules were violative of the provisions of Article 14 of the Constitution of India and could be said to have treated unequals as equals. While examining this contention, B. J, Divan, J. (as he then was) speaking for the Division Bench observed that while considering the question of classification, one must not take into consideration purely fortuitous circumstances. Various judgments of the Supreme Court on the applicability of the provisions of Article 14 were then considered and there after the following pertinent observations were made by the Division Bench:

An examination of the different cases referred to above clearly shows that the object of these rules which prescribe conditions for admission to the medical colleges, where the number of seats is limited and where there is a great rush for admission, is to see that the best candidates are admitted to these colleges so that the society as a whole may have the benefit of best medical talent available. It is with reference to that object that one has to see whether the particular rule has a rational genus with that particular object which is to be achieved in laying down these rules for admission. If unequals are treated as equal or if as a result of the rules there is a possibility of less qualified students being admitted, whereas better qualified students are likely to be left out the rules are liable to be struck down because in that case, there would be no rational nexus between classifications or lack of classification as the case may be, and the object sought to the achieved.

11. It was further observed:

While preparing the merit list irrespective of the year in which the candidate appeared in his Pre-University science examination, all the marks are taken into account equally.

Thereafter, the Division Bench considered the question as to whether merely because the concerned students appeared at the same qualifying examination in different years, it can be said that they were subjected to different types of examinations and, therefore, they formed different classes or categories. That question was answered against the petitioners and it was held that such students could be treated to be forming the same class. However, the Division Bench in terms found that the pattern of admission rules as they existing was not an ideal one and it left much to be desired. It is profitable to extract the exact observations of the Division Bench on this aspect:

If for all purposes, as we have indicated earlier, the candidates falling within Rules 1.3, 1.4 and 1.6 are to be treated on a footing of equality because of the equivalence of the examinations considered by the Academic Council of the University concerned, it is for the court to consider whether the examination of the same University held in different years would not provide more of less uniform standards for the purpose of considering the merits of different candidates. We may point out at once that the system provided in these rules is far from ideal. Much requires to be said about these rules and about the heart-burning which is bound to be caused amongst different candidates when they are lumped together irrespective of the year in which they passed the qualifying examination. However, in matters of this kind, when there is a challenge on the ground of Article 14 of the Constitution, we have to consider as to what the Supreme Court has stated as 'over all effect' and not by picking up exceptional cases.....We will have to consider whether the overall effect and the lack of classification in the light of all aspects in the context of interpretation of rules will also help in considering the question of challenge to the rules on the basis of Article 14 of the Constitution.

(emphasis supplied)

12. Thereafter, the Division Bench noted the four grounds of challenge put forward by the petitioners in support of their contention that the rules violated Article 14:

(1) The percentage of passing and the number of 1st class in each year as shown in Annexure B to the petition;

(2) The changed circumstances as between 1972 and the previous years;

(3) The different syllabi having been prescribed for the said examination in different years; and

(4) The method of examination carried out in different years.

13. The Division Bench examined all these grounds and repelled all of them. So far as the 1st ground was concerned, it was observed that it cannot be said that because of difference in results in different years, it must be accepted that students who passed in 1972 are a class by themselves or that students passing the same examination in each different year, constituted classes by themselves. Thereafter follow important observations which are to be noted in extenso:

We have to judge not from the point of view of an ideal state of affairs but of the practical state of affairs and it may be pointed out that it is by and large on the basis of percentage of marks secured at the qualifying examination that the future of a particular student depends and it may be pointed out that in the light of the equivalence of examination in the light of Rules 1.3, 1.4 and 1.6 of the B. J. Medical College rules, it is marks secured at the qualifying examination or the equivalent examination which decides the place in the merit list of each candidate as far as unreserved seats are concerned. A better system can surely be evolved but that does not mean that the present system is vitiated on the ground of discrimination or that a classification should be made on the basis of the year in which the student concerned passed the qualifying examination. It is possible as was urged before us on behalf of some of the students that the results of a particular year might have been affected because a particular lot of students may not be as good as the lot of students appearing in another year but the same University which is presumed to be maintaining an even standard at the same examination held every year, has equated those students and without any reservation has treated them as eligible for being admitted to those courses.

(Emphasis supplied)

14. So far as the second ground of challenge was concerned, it was observed that the question of changed circumstances on the ground of the institution of qualifying examination for the first time was an imponderable factor so far as the question of equality of treatment to the different students passing in different years is concerned. Hence, the second ground of challenge also failed.

15. Thereafter the Division Bench proceeded to consider the third ground of challenge relating to difference in syllabi, and took the view that difference in syllabus cannot affect the question of interpretation or the question of equality of treatment between the students passing in different years, and that it is on an overall performance of the student in different subjects at the Pre-University science examination that the total number of marks secured by him will be governed and it is on the basis of those total marks obtained in the five subjects that ultimately the merit lists are prepared.

16. Thereafter the Division Bench proceeded to consider the last ground of challenge about the method of examination and observed:

There is nothing before us to show how or to what extent different methods of examination have affected the percentage of results or the number of first class or performance of students and in the absence of any material before us, it will be unsafe for us and extremely hazardous to enter into a speculation as to whether different methods of examination have affected the results in different years.

17. Thereafter, the Division Bench concluded that as none of the four grounds relied upon by the petitioners was sustainable, it was not possible for the Court to say that students appearing in the Pre-University science examination of 1972 formed a class by themselves and non-classification on the basis of passing in each particular year vitiated the interpretation of the rules by the authorities and rendered Rule 1 of the B. J Medical College Rules and Rule 2(a) of the Municipal Medical College Rules void as violative of Article 14 of the Constitution.

18. Then the Division Bench proceeded to consider the raison d'etre underlying the framing of the concerned admission rules. In this connection. the following observations were made:

The ultimate object in framing these rules as observed by the Supreme Court, is to see that the best candidates i.e. the best talent available is admitted to these medical colleges, where the number of seats is limited and from whatever the source may be available, the best talent should be allowed to enter these colleges. Whether a student who passed with higher number of marks in 1970 or 1971 is necessarily better qualified or less qualified than a student getting a less number of marks than him, though appearing in 1972 cannot be decided on the materials.

19. Ultimately, it was left to the good sense of the University authorities to see to it that in each year and over a number of years there is an equality of treatment so far as the assignment of marks is concerned to different candidates. Under these circumstances, it was held that the challenge to the rules on the touch-stone of Article 14 failed. However, before parting with that judgment, the Division Bench made certain pertinent observations which have supplied a clue to the respondents to amend the admission rules and which amended rules have given rise to the present petition. These observations are as under:

However, before we leave this case, we must point out that the rules as they stand and the scheme of the rules, to say the least, is most unsatisfactory and bound to cause a great deal of heart-burning amongst the students appearing at the Pre-University science examination in the particular year. We find from the materials before us that M.S. University of Baroda has prescribed a selection test to be passed by the candidates wishing to join Pre-Medical course of that University and they restrict the candidates who have passed in the academic year 1971-72 so far as the selection test for admission to Pre-Medical course is concerned. We also find from the materials before us that the Saurashtra University has also prescribed a selection test for admission to the Pre-Medical course of that University and it has prescribed a condition that the students who have passed any higher examination than Pre-University science are not eligible for appearing at this test for Pre-Medical course. We also find from the Law reports that in Andhra Pradesh there is a selection test held before the students are admitted to the medical college, it is for the authorities concerned to decide whether they will hold any such test for admission to the Pre-Medical course in Gujarat and South Gujarat Universities. In order to avoid heart-burning and in order to see that there is admission on equal basis on performance at the same examination, these tests prescribed by M.S. University, Saurashtra University and other Universities in India seem to be desirable and it is for the authorities to decide whether they will introduce such selection tests.

(Emphasis supplied)

In the alternative, the authorities may well consider whether any reservation may be made yearwise so far as the students getting admission to the Pre-Medical course are concerned. For example, a larger quota may be allotted to the students appearing in the year in which the admission is sought and a smaller quota diminishing from year to year as we go backward from the year in question when the admission is being considered may also be useful rule to apply so that ultimately there is no heart-burning on the ground that students who had already tried to seek admission in the medical course in the past and were rejected in the past are now coming in and spoiling the chances of those who are fresh entrants for medical courses.

20. Thereafter, it has been observed as under:

We do not recommend any particular course but we only wish to point out that the present state of affairs is bound to cause heart-burning and to avoid such a thing it would be desirable for the authorities concerned to go into the question of introducing other alternative methods for selecting candidates to be admitted to Pre-Medical course. Though we have upheld the validity and interpretation put by the authorities on the rules, the rules of equality on the basis of marks is bound to cause heart-burning irrespective of the University which allotted the marks. It is well-known that all Universities all over the world are not equal. Their standards of examination are not equal. It is well-known, for example, that some Universities in some parts of the world carry a great deal of reputation. To equate candidates passing from those Universities with candidates passing other examinations from other Universities may not be open to challenge but is bound to cause a great deal of heart-burning.

21. So far as the aforesaid decision is concerned, it is true that it upheld the validity of the then existing admission rules for Pre-medical course by taking the view that those who had passed the qualifying examination in earlier years cannot be said to be not falling in the same class in which the students passing the same qualifying examination in the given year fall and it could not be said that unequals were being treated equals. However, this decision makes it dear that the then existing admission rules left much to be desired and did not represent an ideal state of affairs and that they were prone to cause heart-burning to the students passing the qualifying examination in a given year in which they were seeking admission to the concerned medical course. As the Division Bench had suggested proper steps to be taken by the concerned authorities to improve the situation, the respondents framed the impugned executive rules for admission to medical courses under which the coverage of qualifying examination has been narrowed down so as to include only the students passing the qualifying examination in the given year or in the October examination which immediately preceded the qualifying examination for the current year and to exclude all those students like the petitioners who had passed in past the qualifying examinations held prior to the immediately preceding qualifying examination of the last year.

22. The short question which has been posed for my consideration is as to whether this exclusion is justified on the anvil of Article 14 of the Constitution.

23. It must be stated at the outset that the aforesaid Division Bench judgment nowhere lays down that any rule of admission to the medical course which limits eligibility for admission to the course to a given number of examinations, is necessarily hit by Article 14. On the contrary, aforesaid Division Bench judgment while trying to salvage the existing rule which permitted the students who had passed the qualifying examination in the past years to apply for admission to medical course in the given year, had made it clear that the said rule did not represent an ideal state of affairs and that the respondents were required to take necessary steps by suitably amending the rules for admission to avoid heart-burning to the students passing the qualifying examination in the given current year. In fairness to Mr. Tanna for the petitioner, it must be stated that he also readily admitted that the aforesaid Division Bench judgment did not squarely cover the controversy posed for my consideration. It is obvious that if the Division Bench judgment had squarely covered the controversy, the issue would not have required any serious debate. However, the fact remains that the Division Bench in the aforesaid decision was concerned with a converse case and took the view that though not representing an ideal state of affairs, the admission rules scrutinized by the Division Bench escaped being hit by the sweep of Article 14. I am concerned with just the reverse side of the picture. Now, the. admission rules have been amended by the respondents. Eligibility of the concerned students for being considered for admission to the medical course is limited to their passing qualifying examinations within a given period. Those who have passed the qualifying examination beyond that period are going out of consideration. The question is whether such a situation is frowned upon by Article 14. As this question is not squarely covered by the aforesaid ratio of the Division Bench judgment of this Court, it is res-integra before me and I must, therefore, decide this question in the light of the settled legal position as deciphered from various judgments of the Supreme Court to the consideration of which I will now turn.

24. In the case of minor P. Rajendran v. State of Madras : [1968]2SCR786 the Supreme Court was concerned with validity of the admission rule for joining first year integrated M.B.B.S. course which limited the admissions amongst eligible students coming from certain districts only and which ruled out the claims for consideration as made by students coming from other districts. This type of geographical classification of eligible students was found to be devoid of any nexus to the object sought to be achieved, viz., drafting best talents for admission to the professional colleges. The Supreme Court held that such geographical classification would destory the very object underlying the rule for admission to professional colleges. It was held that in order to uphold the given classification on the touch-stone of Article 14, it must be an twin tests - (i) it should be reasonable and (ii) there must be a rational nexus to the object sought to be achieved by the classification. In para 11 of the report, Wanchho, C. J. speaking for the Supreme Court made the following pertinent observations which are required to be extracted in extenso:

The question whether districtwise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further, whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that the object would be defeated if seats are allocated district by district. It cannot be and has not been denied that the object of selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors. If that is the object, the argument on behalf of the petitioners/appellant is that that object cannot possibly be served by allocating seats districtwise. It is true that Article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact, however, that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats districtwise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources.

25. The aforesaid observations of the Supreme Court in the context of the controversy before it clearly lay down that the classification, even though reasonable, would fail on the touch-stone of Article 14 if it has no rational nexus to the object sought to be achieved. That the object underlying framing of rules for admission to medical course is to attract best talents so that the country can get best doctors ultimately. If any classification is found to be devoid of this nexus, it would falter on the anvil of Article 14. On the facts of the case before the Supreme Court, it was obvious that merely because the concerned students belonged to other districts, it could not be said that they were ineligible for being considered for admission or were less meritorious. Such a classification was patently arbitrary and unsustainable.

26. Next judgment of the Supreme Court is rendered in the case of Chitra Gosh v. Union of India : [1970]1SCR413 In that case, another Constitutional Bench of five Judges had an occasion to consider the scheme of reservation of seats in Maulana Azad Medical College, Delhi for admission to medical courses conducted at the college. These reserved categories were specified in Clauses (e) to (h) of Rule 4 of the College Prospectus relating to the eligibility for admission to the college. They covered the cases of students who were sons and daughters of residents of Union territories other than Delhi; the sons and daughters of the Central Government servants posted in Indian Missions abroad, the Cultural Colombo Plan and Thailand Scholars and J & K. scholars. The question before the Supreme Court was whether this type of reservation of seats for the aforesaid categories of students was justified in the background of Article 14 of the Constitution. It was held that classification of these students falling in the reserve categories as found in the impugned rule was based on an intelligible differentia which distinguished them from the group to which the petitioner belonged. Gover, J. speaking for the Supreme Court made the following pertinent observations:

Article 14 forbids class legislation : it does not forbid reasonable classification. In other words, to pass the test of permissible classification, two conditions must be fulfilled : (i) that the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and hi) that differentia must have a rational relation to the object sought to be achieved. The first group of persons for whom seats have been reserved are the sons and daughters of residents of Union territories other than Delhi. These areas are well known to be comparatively backward and with the exceptions of Himachal Pradesh they do not have any medical college of their own.

27. Thereafter follows para 9 of the report which is required to be quoted in extenso:

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 over all 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.

(Emphasis supplied)

28. Thereafter, the Supreme Court proceeded to consider the question as to whether the differentia for which classification was made in the case before them had any rational relation with the object to be achieved. In that connection, it was observed:

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.

29. Thereafter, the Supreme Court noted its earlier judgment in P. Rajendran's case (supra) and reaffirmed that the object of selection for admission is to secure the best possible material. It was then observed that:

This can surely be achieved by making proper rules in the matter of selection but there can be no doubt that such 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.

30. Gover, J. then proceeded to distinguish the ratio in the case of P. Rajendran (supra) and observed in para 11 of the report as under:

The case of P. Rajendran, : [1968]2SCR786 (supra) is clearly distinguishable because there the classification had been made districtwise which was considered to have no reasonable relation with the object sought to be achieved.

31. The aforesaid decision of the Supreme Court clearly lays down that it is for the Government which finances the burden of running medical colleges to lay down 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. That fixation of such criteria is always a question of policy and depends upon, an overall survey of requirements in given cases.

32. The next decision of the Supreme Court is State of Kerala v. T.P. Roshana : AIR1979SC765 In that case, the Supreme Court had to consider the constitutional validity of the rule governing admission to medical colleges in the State of Kerala. As per the said rule, the marks obtained by students of two different Universities whose answer books were valued by different examiners were treated on par and the marks of the examinee in pre-degree and degree course of Calicut University were given parity with those of students of Kerala University. This parity was struck down by a learned single Judge of the Kerala High Court and the said decision was upheld by the Full Bench of the Kerala High Court. That brought the State of Kerala before the Supreme Court. The Supreme Court speaking through V.R. Krishna Iyer, J. upheld the decision of the Kerala High Court about the invalidity of the impugned rule. However, while doing so, the reasoning of the learned single Judge as accepted by the Full Bench of the Kerala High Court was not approved. In para 15 of the report, Krishna Iyer, J. stated as under:

We are not impressed much with the surmise which colours the reasoning of the Full Bench and the learned single Judge that there is such substantial difference in the pre-degree courses and evaluations between the sister universities within the same State that the breach of Art 14 by equal treatment of the marks unequally secured by examinees in the two universities may be spelt out. It is trite law that every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring venial variances, Article 14 is not a woodoo which visits with invalidation of every executive or legislative fusion of things or categories where there are no pronounced inequalities. Mathematical equality is not the touch stone of constitutionality. This Court in Triloki Nath Khosa, : (1974)ILLJ121SC cautioned:Mini classifications based on microdistinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classfication is to undo equality'. In the same ruling there was a caveat intered by Chandrachud, J. (as he then was) against 'a chapter for making minute and microeconomic classification.'. What is more a large latitude is allowed in this area to the State to classify or declassify based on diverse considerations of relevant pragmatism, and the judiciary should not 'rush in' where the executive warily treads. The core question is whether there is such substantial differentiation between the two universities in regard to the pre-degree or degree courses and system of examinations as too glaring to imperil the equal protection clause. The presumption is in favour of the vires of legislative and executive action where Article 14 is the basis of challenge. We see no factual disparities disclosed in the Full Bench ruling to reach the result of substantial difference in the syllabi, in the pattern of examinations, in the marking systems or in the choice of the examiners, so as to warrant invalidation on account of equal regard being accorded to the marks secured by the examinees from the two universities. We cannot forget that many colleges are run by the State of institutional managements where pre-degree or degree courses are undertaken. The teachers move from one university jurisdiction to the other, the teaching material is inevitably of a like nature, the subjects taught must ordinarily be alike. The examiners are usually drawn from within the State or neighouring States. Even the composition of the academic bodies in the two universities may have common members. The University Acts themselves are substantially similar. To surmise discrimination from possibilities is alien to the forensic process in the absence of hard facts. We are aware that there are Universities and Universities, that gross divergences among them exist affecting the quality of the teaching and the making, the anomalies of grading and the absurdity of equating the end products on the blind assumption that the same marks mean the same excellence. But not glib surmises but solid facts supply the sinews of discriminatory inequality or equality. Going by vague reports, some backward Universities and colleges have degenerated into degree dealers bringing rapid discredit to Indian academic status.

However, the Supreme Court, took the view, agreeing with the High Court that 'the injunction of the Universitywise student-strength is drawing the red-berring across the trail - an irrelevance that invalidates the scheme. We cannot see the nexus between the registered student-strength and the seats to be allotted. The fewer the colleges the fewer the pre-degree or degree students. And so, the linkage of the division of seats with the registered student-strength would make an irrational inroad into the Universitywise allocation. Such a formula would be a punishment for a backwardness, not a promotion of their advancement. Therefore, it was not possible to uphold the discriminatory paring down based on unreason. Thus, reservation of seats State Universitywise on the facts of the said case was held to be irrational.

33. The last judgment of the Supreme Court is in the case of Jagdish Saran v. Union of India : [1980]2SCR831 In the aforesaid case, the Supreme Court bench consisting of V.R. Krishna Iyer, R.S. Pathak and O. Chinappa Reddy, JJ. had to consider the validity of the admission rule reserving 70% of the seats at the post-graduate level in the post-graduation course in Dermatology conducted by the Delhi University. Krishna Iyer, J. speaking for himself and O. Chinnappa Reddy, J. considered the primary imperative of Articles 14 and 15 of the Constitution at para 36 of the report and stated:

The primary imperative of Articles 14 and 15 is equal opportunity for all across to the nation to attain excellence and this has burning relevance to our times when the country is gradually being broken up into fragments by narrow domestic walls in politics, economics and education.

It was further observed:

Each according to his ability, is of pervasive validity, and it is a latent, though radical, fundamental that, given propitius environments, talent is more or less evenly distributed and everyone has a prospect of the rising to the peak.

In para 17 of the report, it is observed:

This norm of non-discrimination, however, admits of just exceptions geared to equality and does not forbid these basic measures needed to abolish the gaping realities of current inequality afficting socially and educationally backward classes and the Scheduled Castes and the Scheduled Tribes.

In para 18, it has been observed:

Prima facie, equal marks must have equal chance for medical admissions, as urged by the petitioner. And neither university based favoured treatment nor satyagraha induced quota policy can survive the egalitarian attack. To repulse the charge, equality oriented grounds must be made out. Constitutional equality itself is dynamic, flexible and moulded by the variables of life.

In para 39 of the report, it has been 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.

34. So far as the aforesaid judgments of the Supreme Court are concerned, it may be noted that the Supreme Court was not concerned with the question of comparison of merits reflected through marks obtained by the concerned students at different examinations held over a period of time. Thus, the question which has arisen in the present case is not strictly covered by the aforesaid decisions of the Supreme Court. However, the principles laid down in all the decisions of the Supreme Court will have to be kept in view in considering the constitutional validity of the rule in question.

35. I may at this stage also refer to a Division Bench judgment of this Court in Special Civil Application No. 2823 of 1982 and group decided by Ahmadi and Mankad, JJ. on 20th August 1982, which is reported in : AIR1983Guj173 The Division Bench speaking through Ahmadi, J. was concerned with the question of constitutional validity of the resolution dated 31-5-1982 passed by the Government in Education Department whereunder rules were framed for admission to the four engineering colleges mentioned therein for the academic year 1982-83. Two groups of students-(i) those who passed their higher secondary certificate examination in October 1981 and April 1982 (hereinafter called 'the first batch') and (ii) those who passed their higher secondary certificate examination in the preceding years (herein after called 'the second batch') were contending against each other in the light of the aforesaid admission rules. The petitioner's contention was that only the students belonging to the first batch were eligible for admission to the said colleges and those belonging to the second batch were not legally entitled to admission. The contesting respondents representing the second batch submitted to the contrary. The petitioners' contention was that if the second batch of students were included within the fold of eligibility for admission to the said colleges, the relevant admission rule would be violative of Article 14 of the Constitution as thereby unequals would be treated as equals. It may be stated at this stage that the nature of controversy which arose for consideration of the Division Bench in the aforesaid decision in the context of admission rules for engineering courses was parellel to the controversy which arose for consideration of the earlier Division Bench of this Court viz. B. J. Divan and M. U. Shah, JJ. in Special Civil Application No. 965 of 1982, in the context of admission to medical courses. In Special Civil Application No. 2823 of 1982 and group, great reliance was in fact placed by Ahmadi, J. in support of their decision on the aforesaid earlier decision of this Court. It was, therefore, found that merely because students of the second batch had passed the qualifying examination earlier, it could not be said that they would not form a part and parcel of the same class to which the students of the first batch belonged and consequently, if students of both the batches as were considered equally eligible for being admitted to the concerned engineering colleges, it could not be said that unqeuals were treated as equals. As the earlier judgment of the Division Bench does not cover the question passed for my consideration in the present proceedings as I have already shown earlier, it is obvious that the later Division Bench judgment of this Court following the earlier decision also would not conclusively cover the present question one way or the other. However, it is necessary to note the observations of the Division Bench in para 7 of the report. In the said para, existing rules for admission to medical colleges which are impugned before me in the present proceedings were noted by the Division Bench and thereafter the following pertinent observations were made by Ahmadi, J.:

It is indeed true that this rule clearly states that admission will be confined to those students who have passed the higher secondary certificate examination in March/April of the current year or October/November of the preceding year and the examination of the Central Board of Secondary Education. New Delhi or any of the recognised institutions from Gujarat State. If the rule making authority, namely, the Government, intended to make a similar provision in the rules pertaining to admission to the first semester of the B. E. course, there was nothing to stop it from doing so in express terms. If the same rule making body restricts the admission to the students passing the higher secondary certificate examination in March/April of the current year or October/November of the preceding year and the examination of the Central Board of Secondary Education insofar as admission to the first M.B.B.S. course and allied courses are concerned, there was nothing to stop it from making a similar provision if that was the intendment insofar as admission to the engineering course is concerned. The fact that it has not done so clearly shows that it did not intend to do so. It must also be remembered that this change was brought about in the rules for admission to the first M.B.B.S. course after the decision of this Court in Special Civil Application No. 965 of 1972 decided on 5th July 1972 by a Division Bench consisting of B. J. Divan and M.U. Shah, JJ. (as they then were). It was in this decision that on interpreting similar rules this Court came to the conclusion that admission could not be denied to students of the class belonging to the second batch. It was after this decision that the Government decided that in the case of M.B.B.S. course and certain other allied courses, admissions should be restricted to students who have passed the examination in March/April of the current year or October/November of the preceding year, as the case may be. The Government was aware of the decision of this Court in the aforesaid petition and the interpretation put on similar rules and yet it decided to limit the eligibility criterion in the case of M.B.B.S. and allied courses but did not do so, so far as engineering course is concerned. That clearly brings out the intention of the Government that it did not desire to deny admission to students belonging to the second batch so far as the engineering course is concerned.

It is true that this Court was not concerned with the question of vires of admission rules for admission to medical colleges, in the aforesaid decision. However, the fact remains that the Division Bench of this Court has noted the policy underlying the new admission rules so far as medical courses are concerned and has clearly indicated that these rules reflected a clear-cut departure in executive policy as compared to the admission rules to engineering courses with which Ahmadi, J. was concerned in the aforesaid Division Bench decision. Consequently, the decision of this Court in Special Civil Application No. 2823 of 1982 and group would be of no assistance to the petitioners before me. It is also pertinent to note that Ahmadi, J. in the above case noted the contention on behalf of the petitioners that in admission rules to engineering colleges, as no time limit was prescribed, so far as eligibility of students who had passed the qualifying examination to compete for admission in any year was concerned, hypothetically speaking, the students who had passed the same in the preceding years, number of years notwithstanding, would be eligible for admission to engineering courses. Replying to the said contention, it was observed that technically, it might appear to be so. But there was nothing to show on record that in actual practice, it does so happen and even if it does, that cannot be helped because it is for the policy makers to decide whether or not to eliminate such students from being considered for admission. Thereafter, Ahmadi, J. speaking for the Division Bench noted the observations of the Supreme Court in Chitra Ghosh's case (supra) that the Government cannot be denied the right to decide from what source the admissions will be made. In this connection, it was further observed by Ahmadi, J.:

It is, therefore, obvious that in matters pertaining to policy, the decision must be taken by the State Government and if it is clear from the plain reading of the rules that the State Government did not intend to rule out students belonging to the second batch from being considered for admission, we cannot by a process of reading down the rules deny to them admission to which they are entitled under the rules.

While finally rejecting the contention of the petitioners about the alleged invalidity of the admission rules for engineering colleges, it was observed:

In fact, this question is concluded so far as this Court is concerned in view of the decision rendered in Special Civil Application No. 965 of 1972 (supra).

36. As I have already shown earlier, the decision in Spl. C.A. No. 965 of 1972 does not touch upon the question in controversy which is posed for my consideration and, therefore, ipso facto the later judgment of this Court in Special Civil Application No. 2823 of 1982 and group also is of no real assistance to the petitioner in support of his contention.

37. I may now turn to one another Division Bench judgment of this Court in Letters Patent Appeal No. 68 of 1983 in Special Civil Application No. 5387 of 1982 and Anr. decided by B. K. Mehta and A.S. Qureshi, JJ. on 5th/ 6th April 1983. In the aforesaid decision, the Division Bench of this Court was concerned with the question of validity of rules for preparation of merit list for admission to the post-graduate medical courses enacted by the Gujarat University in pursuance of the writ issued by this Court in Special Civil Application No. 3704 of 1982. The concerned rules read as under:

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.

38. The court took the view that the University authorities intended to exclude the medical graduates who would have become eligible by completing their internship in the academic years preceding the relevant academic year in which they seek admission to post-graduate course. That intention on the part of the University was not effectively carried out in the rules and that they required to be re-framed. It was further held that it cannot be gainsaid that the registration rules have not made any distinct classification of sources either expressly or by necessary implication. Even if that had been the intention, it has not been properly incorporated in the rules. It was further observed that apart from intention not being properly expressed in Rule 1, assuming that this was in the nature of reservation, for the medical graduates being eligible after completing their internship in the same academic year in which the admission to P. G. course opens, even then, it may amount to a reservation of 100% for the students of last two examination batches who become eligible after completing their internship in the same academic year in which the admissions open to P. G. courses, in such cases, it was likely to be assailed, if at all that intention of the University has been incorporated in Rule 1 as reserving entirely for one class of students and that reservation may be unreasonably excessive in the light of the decision in M. R. Balaji and Ors. v. The State of Mysore and Ors. : AIR1963SC649 The Division Bench speaking through B.K. Mehta, J. however, made it clear that they were not expressing any final opinion on this point since in their opinion, Rule 1 is not precise and is not capable of implementation. Thereafter, it was observed:

If it (Rule 1) says what was meant by the University authorities, it suffers from vice of Article 14 inasmuch as it excludes the medical graduates who have become eligible in the academic years preceding the relevant academic year in which admissions open to post-graduate medical classes, since they form one class alongwith those students who become eligible in the same academic year in which the admissions are to be given to P. G. courses. This position is concluded so far as this Court is concerned by the decision of the Division Beach of Divan and M.U. Shah, JJ. in Special Civil Application No. 965 of 1972 rendered on 5-7-1972.

39. Now, it must be noted that he Division Bench in the aforesaid case did not expressly go into the question as to whether Rule 1 of the impugned rules was ultra vires Article 14 of the Constitution or not as they held it to be unintelligible and that it was required to be reframed. Consequently, the later observations of the Division Bench were based on assumptions and were in the nature of obiter dicta. Even otherwise, these observations were based on the ratio of the Division Bench judgments in the Special Civil Application No. 955 of 1972 which, as I have already shown earlier, is not attracted to the facts of the present case, as the present case is a case which is entirely converse to the one which was before the Division Bench in Special Civil Application No. 963 of 1972. Consequently, the decision of this Court in Letters Patent Appeal No. 68 of 1983 and Anr. affords no assistance in deciding the present controversy before me.

40. In the light of the aforesaid legal position, the question whether the impugned rules in the present case are ultra vires Article 14 of the Constitution or not will have to be decided in the light of the twin test laid down by the Supreme Court in P. Rajendran's case (supra). Firstly, it will have to he found out as to whether sub-classification of students passing the qualifying examination into two categories (i) those students who have passed the qualifying examination for admission to 1st M.B.B.S. course within the permissible limit viz. their clearing the qualifying examination in the current year and at the earliest their passing the immediately preceding qualifying examination held in October of the earlier year and (ii) students who have passed the qualifying examination beyond the permissible period of time that is prior to October of the last year, is reasonable or not i.e. whether the said sub-classification is backed up by an intelligible differentia. Now, it must be kept in view, as held by the Division Bench of this Court in Special Civil Application No. 965 of 1972 that the students passing the qualifying examination at different points of time can be treated to be forming the same class. If that is so, the sub-classification on the basis of period wise passing of the qualifying examination can be justified if at all it is found to be reasonable. Secondly, it must further be shown that the said sub-classification has any rational nexus to the object sought to be achieved. If the said sub-classification does not satisfy the aforesaid twin tests, it must fail. If on the other hand, it steers clear of those two tests, it can stand sustained.

41. In my view, the impugned rules satisfy both the aforesaid tests. Students who have passed the qualifying examination years back and the students who passed the qualifying examination, held in the same year in question or in immediately preceding October of the last year, can reasonably be treated to be forming two distinct sub-classes. Those students who passed the qualifying examination of April in the current year or at the earliest in October of the last year would get their chance only for the first time for being considered for admission to medical course beginning from June-July of the current year. While those students who passed qualifying examination in past years prior to October of last year would naturally get chance for getting admitted to medical courses beginning from June-July of the concerned past years. The following illustration would make the position clear. A B C D E are students who have passed the qualifying examination i.e. higher secondary examination, science stream at different times as shown in the statement. The question of their eligibility for being considered for admission to first M.B.B.S. course beginning from June 1982 when examined in the background of the existing rules for admission would yield the following result:

------------------------------------------------------------------------------

Name of the Month and year Chance to compete No. of

student of passing the for admission chances

qualifying exam. to F.Y. M.B.B.S. available

course

------------------------------------------------------------------------------

A October 1980 June-July 1981 1 (excluded)

B April 1981 June-July 1981 1 (excluded)

C October 1981 June-July 1982 1

D April 1982 June-July 1982 1

------------------------------------------------------------------------------

As per the impugned rule, for admission to June-July 1982 F.Y. M.B.B.S. course, only C and D will get one chance each for being considered. A and B who had already got their chances for being considered once last year and who lost on merits will get excluded as they have passed their qualifying examination prior to October 1981.

If the petitioner's contention is upheld and if all the students who have passed qualifying examination, may be at any time in distant past are allowed to compete for admission to each successive year's F.Y.M.B.B.S. course, the following situation would emerge:

--------------------------------------------------------------------------------

Name of the Month and year Chance to compete No.

student of passing the for admission of chance

qualifying exam. to F.Y. M.B.B.S. available

course

--------------------------------------------------------------------------------

A October 1980 June-July 1981 2(one last year

(excluded) one current year).

B April 1981 -do- 2 - do -

C October 1981 June-July 1982 1

D April 1982 June-July 1982 1

--------------------------------------------------------------------------------

42. It is apparent that those students who had once got a chance to be considered for admission to F.Y. M.B.B.S. course and who failed to get admission on merits would again enter the arena year after year till they get admitted. This would certainly adversely affect the chances of fresh students who would get entry in the arena of contest for the first time in the given year. If, to avoid heart-burning to such fresh students, respondent-State adopts a policy of admission restricting the contest amongst fresh students with a view to seeing that all students who pass the qualifying examination get one chance each to be considered on merits for admission and that if they are weeded out on merits, they should go out of contest and yield place to fresh students, it cannot be said that the said policy is discriminatory or arbitrary from any view point. As per the impugned rule of admission, each of the students passing qualifying examination would get one fair chance to be considered on merits. If he loses on merits, he is elbowed out of contest for the rest of his career. He or She having exhausted the available chance and having been elbowed out by more meritorious students has to turn the sails towards other courses of studies and medical carrier would get foreclosed for such a student.

43. If what the petitioner contends for is accepted, a lopsided system of admission would emerge, giving number of chances to students who have passed the qualifying examination in distant past and who could not be admitted on merits in past years' 1st M.B.B.S. courses while their carried forward back log would adversely affect the chances of fresh students who are to be considered only for the first time. Under these circumstances, impugned sub-classification of eligible students passing qualifying examination during the relevant period must be held to be based on an intelligible differentia.

44. It is now well settled that the task of laying down guidelines for admissions to be effected from given sources remains in the realm of a policy decision left to the executive. In that view of the matter, if the executive in exercise of its powers makes a policy decision to restrict entry of students to the medical course in the given year by putting upper limit to the number of qualifying examinations which can be taken into consideration for drafting students to medical courses starting year after year, it cannot be said that such a policy decision is unreasonable or that classification or sub-classification effected thereby is necessarily irrational. In my view, looking to the number of seats available in the given year and keeping in mind the fact that the students passing the qualifying examination in earlier years had already exhausted their chance for being considered for admission and had lost in the constest in view of their lower merits reflected by their marks, if they are excluded from future contest, it cannot be said that such exclusion made by the executive is unreasonable from any point of view. It must, therefore, be held that sub-classification of students otherwise similarly situated from a broad point of view as all of them had passed the qualifying examination, is not unreasonable from any view point.

45. Now remains the question as to whether this sub-classification of students similarly situated, all of whom had passed the qualifying examination, has any rational nexus to the object sought to be achieved. It is now well settled that the object sought to be achieved by providing classification and sub-classification of students for being considered for admission to medical courses starting year after year in medical colleges is to draw best talents so that the country can have best doctors in future. Keeping this object in view, if the executive bona fides takes a policy decision to remove from contest those students who have passed the qualifying examination in remote past and who had already their opportunity to be considered for admission to the medical courses started in past years and who were elbowed out of contest because of their low merits and more meritorious students got admitted in the past years courses, if such students are not again given second or third opportunity or even more and if fresh students who had recently passed their qualifying examination and who had not been elbowed out on merits by any one, are only considered for the purpose of admission to the relevant medical courses, starting in the given year it cannot be said that adoptions of this yard-stick has no nexus to the object sought to be achieved. Those students who have tried and failed on merits to get admission on the basis of having passed the qualifying examination in the past can equally be treated to be less meritorious as compared to those students who are freshers and who have not been weeded out of contest on account of their low merits. Consequently, the policy of limiting the area of choice to only those students who had passed the qualifying examination in the current year or one qualifying examination immediately preceding the current year can be said to have a rational nexus to the object sought to be achieved viz. to attract best talents for medical courses. It is trite to say that those who have tried and failed on merit necessarily cannot be treated on par with those who had no chance of trial even once and who have never failed on merits. Consequently, it cannot be said that those who have been weeded out of contest should be permitted to try their luck again and again and to compete with the fresh students on the criterion of merits, and that if they are not permitted to do so, the object underlying the classification would suffer and that best talents would be excluded. It is impossible to agree with the submission of Mr. Tanna that if students who had passed the qualifying examination in distant past and who had stood no chance on merits to get admission in the medical course in the past years on account of their low ranks on merit list due to less number of marks, are not permitted to appear again and again in succeeding years, may be number of times till they ultimately get admission to the medical courses at any distant future point of time, the object of drafting best talents to the medical courses would get frustrated. To say the least, to allow such students to go on trying for admissions in perpetuity for any number of years till they ultimately get admitted, would frustrate the very object of drafting best talents to medical courses so that the country can have best doctors. It must, therefore, be held that the sub-classification of students passing the qualifying examination within the given period and excluding those students who have passed the same qualifying examination beyond this limit in distant past is reasonable and has also a rational nexus with the object sought to be achieved thereby viz. to get best talents attracted to medical courses with the ultimate object of making available best doctors for the service of ailing humanity. The main submission of Mr. Tanna for the petitioner challenging the constitutional validity of the executive rules for admission, therefore, fails.

46. Before parting with the discussion on this aspect, it must be kept in view that the Division Bench of this Court in Special Civil Application No. 965 of 1972 has itself held that the then existing rules for admission to medical courses represented a state of affairs which was far from ideal and that it was prone to give rise to heart-burning amongst the fresh students who had passed the qualifying examination during the year in question. The Division Bench itself had recommended that the respondent might make suitable changes in the rules and might adopt proper criteria to improve the situation. It is in the light of the recommendation of the Division Bench that the impugned rules were framed. In para 3 of the affidavit-in-reply filed by the Dean, B. J. Medical College, it has been stated that these rules have been inserted after due and lengthy deliberation as per the direction of the Gujarat High Court in the above Special Civil Application. It is also pertinent to note that in the said judgment. B.J. Divan, J. (as he then was) speaking for the Division Bench has in terms held that atleast substantial number of seats should be reserved for the fresh students who passed the qualifying examination in the current year for being admitted to the current medical courses and that for the past students, quota of reservation should be reduced to avoid unnecessary heart-burning. Taking a clue from this judgment, the respondents have restricted the full quota of seats available in a given year to only those students who passed the qualifying examination in the current year or in the immediately preceding October of the last year. They have not kept any reservation of seats for the students passing the qualifying examination prior thereto. This is clearly a policy decision emanating from the directions and suggestions made by this Court in the aforesaid judgment and even otherwise, the said policy decision has well stood the test of Article 14 of the Constitution of India as observed earlier. It is not as if that the admission rules framed in one manner and which are found to have stood the test of Article 14 cannot be amended in any other manner by introducing a different policy for restricting admission if the later policy does not offend in any manner the provisions of Article 14 of the Constitution. Diverse policy decisions for controlling admissions to educational institutions can all remain well sustained on the anvil of Article 14. All that is required to be satisfied is that each policy decision must successfully answer the twin tests for meeting the challenge under Article 14. As I have shown above, the twin tests are clearly met by the impugned rules in the facts of the present case. Consequently, the submission of Mr. Tanna that the impugned rule is violative of Article 14 of the Constitution cannot be countenanced.

47. That takes me to certain ancillary submissions canvassed by Mr. Tanna in support of the petition. He submitted that the rule in the present case is arbitrary and violative of Article 14 also on the ground that it lays down a different policy which is contrary to the policy reflected by the admission rules to Engineering courses as adopted by the State of Gujarat itself. This contention of Mr. Tanna has to be stated to be rejected. It is obvious that the executive policy decision for regulating admission to engineering course cannot ipso facto be applied for judging the alleged illegality of the policy followed for regulating admissions to medical courses and both are distinct spheres and the executive policies operate in distinct fields which do not overlap at any stage. No comparison is possible between unequals. Even otherwise this contention of Mr. Tanna is squarely answered against him by the Division Bench judgment of this Court in Special Civil Application No. 2823 of 1982 and group decided by Ahmadi and Mankad, JJ. As noted above, in that decision, it has been clearly held by the Division Bench that the present admission rules to Medical courses stand on an entirely different footing from the rules to Engineering courses and that they reflect different executive intentions. Consequently it is too late for Mr Tanna to contend that merely because admission rules to engineering courses are differently worded as compared to admission rules to medical courses, the amended rules are violative of Article 14 of the Constitution.

48. Mr. Tanna next contended that the respondents, following the directions contained in the judgment of the Division Bench in Special Civil Application No. 955 of 1972, as noted above, could have introduced entrance test for selecting students for admission to M.B.B.S. courses every year and there was EO necessity to restrict admission amongst the students passing the qualifying examination during the specified period of time. It is not possible to countenance this submission of Mr. Tanna. It is true that one of the modalities for streamlining admission rules was suggested by providing entrance test. But it is for the executive to take appropriate policy decision. Instead of providing entrance test, time limit was provided during which the qualifying examination passed by the concerned student was to yield eligible number of students who can be considered for admission in a given year. It is for the policy makers to choose one or the other of the modalities all of which may have the same purpose of removing heart-burning of the fresh students who passed the qualifying examination in the given year. If the impugned policy stands the acid test of Article 14 as it has done in the present case, it would be legally impermissible for anyone to submit that some other policy decision could have been taken. For canvassing such a cantention, the court will not be a proper forum.

49. Mr. Tanna lastly contended that nowhere in the country, any restrictions are put on the age qualifications for entry to medical courses. That if such restrictions are put, then also the purpose can be served. This is also a question of policy decision and whether suggested modality would be better or the present policy decision reflected by the impugned rule is better, is for the executive to decide. The court's limited function is to test the impugned decision on the touch-stone of Article 14 of the Constitution and if the impugned decision escapes unscathed, the matter must end so far as the court proceedings are concerned. Hence, this grievance cannot be of any real assistance to the petitioner.

These were the only contentions raised by Mr. Tanna for the petitioner and as there is no substance in any one of them, the inevitable result is that the petition fails. Rule issued therein is discharged. In view of the facts and circumstances of the case, there will be no order as to costs.


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