IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT 1. SB Civil Writ Petition No. 16111/2009 Ravindra Kumar Saini & anr Vs State of Rajasthan & ors 2. SB Civil Writ Petition No. 16133/2009 Dr Rajendra Lamror & ors Vs The Secretary, Department of Medical & Health, Rajasthan, Jaipur & anr 3. SB Civil Writ Petition No. 16154/2009 Dr Abhilash Jain Vs Vs The Secretary, Department of Medical & Health, Rajasthan, Jaipur & anr 4. SB Civil Writ Petition No. 70/2010 Dr Gargi Mathur Vs State of Rajasthan & ors 5. SB Civil Writ Petition No. 71/2010 Dr Siddharth Nirwan & ors Vs State of Rajasthan & ors 6. SB Civil Writ Petition No. 72/2010 Dr Gaurav Jain & ors Vs State of Rajasthan & ors 7. SB Civil Writ Petition No. 73/2010 Dr Akhter Ali & ors Vs State of Rajasthan & ors 8. SB Civil Writ Petition No. 74/2010 Dr Mohd.Arif & ors Vs State of Rajasthan & ors Date of Order : 4th January, 2010 HON'BLE MR. JUSTICE MN BHANDARI Mr CL Saini Mr Vijay Chaudhary Mr BM Sharma - for the petitioners Dr YC Sharma for caveator respondent-University BY THE COURT:
This bunch of writ petitions raises similar question of law thus have been heard together and decided by this common judgment.
Petitioners are those who have successfully completed their MBBS course followed by one year Internship thus are eligible to undergo Post Graduate courses (MD/MS/Diploma). All the petitioners are residents of State of Rajasthan and undertaken MBBS course from the Medical College/ University situated out of State of Rajasthan. Majority of the petitioners are those who got admission in MBBS course pursuant to 15% quota meant for all India competition thus having succeeded on all India basis for admission in MBBS course, they got admission in a Medical College out of State of Rajasthan based on their merit. After completion of their MBBS course, when they intend to apply for PG course in the State of Rajasthan, taking note of amendment in Ordinance 278-E and 278-G of Rajasthan University as modified and adopted by Rajasthan University of Health Sciences, Jaipur, petitioners became ineligible to compete for Pre-Post Graduate Medical Entrance Examination, 2010 (Pre-PG) against 50% seats.
Learned counsel for the petitioners submit that petitioners are residents of Rajasthan thus are entitled to compete in Pre-PG Entrance Examination and should not have been debarred only for the reason that they undertook their MBBS course under a different University than that of Rajasthan University of Health Sciences/ University of Rajasthan. Pursuant to the amendment in Ordinance 278-E and G meritorious candidates of State of Rajasthan are deprived to seek admission in PG course in violation of Article 14 of the Constitution of India. Validity of the amended provisions of Ordinance as well as conditions of eligibility in the Instructions Booklet have been challenged mainly on the aforesaid grounds.
It is also urged that while an open category candidate is compelled to possess qualification of MBBS course from University of Rajasthan/ Rajastahn University of Health Sciences such a condition has not been imposed for in-service candidate thus a different criteria has been adopted in violation of Article 14 of the Constitution of India. Petitioners having obtained MBBS degree and registered with Medical Council of India (MCI) are eligible to compete in Pre-PG entrance examination in the State of Rajasthan.
It is lastly urged that for Pre-PG Medical Entrance Examination, 2009 a different criteria was existing and if the aforesaid criteria is taken note of then bonafide resident of State of Rajasthan having admitted to medical college on all India competition basis was made eligible but this time different criteria has been provided in an illegal manner so as to deprive a candidate of Rajasthan to compete in Pre PG entrance examination. Other than the aforesaid three issues, no other issue was urged before me.
Learned counsel for the petitioners made reference on various judgments of Hon’ble Apex Court on the issue. It is submitted that in the case of State of UP and others Versus Vineet Singh & others (2000) 7 SCC 262, students of the State who had taken admission in MBBS course out of State were allowed to compete in Pre-PG entrance examination for their own State. The aforesaid view was based on earlier judgment of the Hon’ble Apex Court in the case of Dr Parag Gupta Vs University of Delhi & others (2000) 5 SCC 684. Referring to the judgment of K Duraisamy and another Vs State of TN and others (2001) 2 SCC 538 it is submitted that seats reserved for in-service candidates cannot have different qualification than provided for open category candidates. A further reference has been made on a judgment in the case of Saurabh Chaudri (Dr) and others Vs Union of India & ors (2004) 5 SCC 618 wherein considering issue of increase of all India seats from 25% to 50% it was held to be prospective. Lastly, judgment in the case of Dr Pradeep Jain and ors Vs Union of India & ors (1984) 3 SCC 654 was referred.
Learned counsel for the University, on the other hand, supports the amendment in the Ordinance so as the Instruction Booklet. It is stated that the issue as has been raised herein was the issue before the Hon’ble Apex Court in the case of Abhinav Aggarwal & anr Vs Union of India & ors (2001) 3 SCC 425 and in the case of Magan Mehrotra & ors Vs Union of India & ors ((2003) 11 SCC 186. The matter was further considered by this court in the case of Dr Neha Sharma & ors Vs Rajasthan University of Health Sciences 2009 (3) WLC (Raj) 617. In Dr Neha Sharma’s case (supra) the matter was considered in respect of pre-amended provisions of the Ordinance and Instruction Booklet taking note of the judgment of the Hon’ble Apex Court in the case of Magan Mehrotra (supra). A direction was given to amend the provisions of the Ordinance and, accordingly, the amendment was given effect in the Ordinance. In Dr Pradeep Jain case (supra) Hon’ble Apex Court held that no reservation/ preference based on residence can be provided in Post Graduate Courses of Medical. In the aforesaid judgment itself a liberty was given to provide institutional preference for admission in PG courses. The prayer of the petitioners to provide them an opportunity to appear in Pre-PG entrance examination 2010 being residents of State of Rajasthan is nothing but a claim based on residence, which otherwise not permissible in view of basic judgment in the case of Pradeep Jain (supra).
Referring to the other issue, learned counsel for the University has submitted that open category candidates to which petitioners are claiming their entitlement fall in different category than in-service candidates thus equation or parity of two different categories cannot be claimed. It is further submitted that so far as Pre-PG entrance examination 2009 is concerned, that was based on unamended provisions of the Ordinance however in view of judgments in the case of Magan Mehrotra and Dr Neha Sharma (supra) amendment has been made thus Instruction Booklet contains amended criteria, hence petitioners’ claim as per unamended provisions of the Ordinance cannot be accepted. A change in the legal provisions cannot be nullified on the ground that in previous years same was not the position. In view of aforesaid submissions, prayer of the learned counsel for the University is to dismiss the writ petitions.
I have considered rival submissions made by learned counsel for the parties and perused the material on record besides the judgments referred.
Before dealing with arguments, it is necessary to give brief history of admission in Pre-PG Entrance Examination. The Hon’ble Apex Court while dealing with the case of Dr Pradeep Jain (supra) in the year 1984 held that no preference/ reservation should be given based on residence in Post Graduate Courses however Institutional preference can be given. Initially, only 25% of the seats were kept on All India Competition basis for PG courses however after the judgment in the case of Saurabh Chaudri (supra) All India quota was raised from 25% to 50%. Now for any State, out of total seats, 50% of the seats have to be filled based on All India competition wherein every candidate having possess the qualification of MBBS course with one year Internship is eligible to appear. Petitioners are also entitled to compete against those All India quota seats. The State of Rajasthan is having 368 seats in PG courses and out of which 50% are to be filled based on All India competition for which petitioners are also entitled to compete. Remaining 50% seats have to be filled by the State. Present matter pertains to those seats. While issuing the Instruction Booklet 2010, first para pertains to seats and reservations which is quoted herein for ready reference:-
1. Seats and Reservations
(a) 50% of the total seats available in various MD/MS/Diploma courses will be filled in as per allocations made by the Director General of Health Services, Government of India, New Delhi, on the basis of the result of All India Competitive Entrance Examination for admission to PG Courses (MD/MS/Diploma) on open merit, as per directions of Hon’ble Supreme Court of India.
(b) Remaining 50% of the total seats available in various MD/MS/Diploma courses will be filled in on the basis of merit in the Pre-PG Medical Entrance Examination 2010. Out of these seats allotment to In-Service and Non-Service candidates would be as per O.278 E & G of Rajasthan University as modified and adopted by Rajasthan University of Health Sciences, Jaipur. Further distribution of seats among General and Reserved categories shall be as per rules and regulations of Medical Council of India (MCI) and directives of State Govt./Hon’ble Courts in this regard.
The quoted para clarifies that all the seats in the State of Rajasthan are not to be filled from and amongst the candidates who have passed out their MBBS course from University of Rajasthan/ Rajasthan University of Health Sciences thus apprehension of the petitioners that they cannot get admission in PG courses in the State of Rajasthan is not correct. After appearing in the All India Entrance Examination for PG courses they can get admission even in the State of Rajasthan, subject to their merit position and preferences. Grounds raised by the petitioners are to be considered in the light of aforesaid background.
First ground raised by the petitioners are that they are residents of State of Rajasthan and majority of the petitioners sought admission in MBBS course against 15% seats meant through All India Entrance Examination thus they should have been made eligible for and against 50% of PG seats meant for State of Rajasthan. The claim aforesaid is mainly based on residence i.e. petitioners are basically domicile of State of Rajasthan. The judgment in the case of Pradeep Jain (supra) has to be taken note of. It was held as under:-
19. It will be noticed from the above discussion that though intra-State discrimination between persons resident in different districts or regions of a State has by and large been frowned upon by the Court and struck down as invalid as in Minor P. Rajendran case and Peeria Karuppan case, the Court has in DN Chanchala case and other similar cases upheld institutional reservation effected through university-wise distribution of seats for admission to medical colleges. The Court has also by its decisions in DP Joshi case and N. Vasundara case sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to medical colleges. These decisions which all relate to admission to MBBS course are binding upon us and it is therefore not possible for us to hold, in the face of these decisions, that residence requirement in a State for admission to MBBS course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity contained in Article 14. We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence requirement in a State can be introduced as a condition for admission to the MBBS course. It is of course true that the Medical Education Review Committee established by the Government of India has in its report recommended after taking into account all relevant considerations, that thefinal objective should be to ensure that all admissions to the MBBS course should be open to candidates on an all India basis without the imposition of existing domiciliary condition, but having regard to the practical difficulties of transition to the stage where admissions to MBBS course in all medical colleges would be on all India basis, the Medical Education Review Committee has suggested that to begin with not less than 25 per cent seats in each institution may be open to candidates on all India basis. We are not at all sure whether at the present stage it would be consistent with the mandate of equality in its broader dynamic sense to provide that admissions to the MBBS course in all medical colleges in the country should be on all India basis. Theoretically, of course, if admissions are given on the basis of all India national entrance examination, each individual would have equal opportunity of securing admission, but that would not take into account diverse considerations, such as, differing level of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties, which may be experienced by students from one region who might in the competition on all India basis get admission to the MBBS course in another region far remote from their own and other allied factors. There can be no doubt that the policy of ensuring admission to the MBBS course on all India basis is a highly desirable policy, based as it is on the postulate that India is one nation and every citizen of India is entitled to have equal opportunity for education and advancement, but it is an ideal to be aimed at and it may not be realistically possible, in the present circumstances, to adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities a situation which simply does not exist in the country today.
………
We are glad to find that the policy of the Government of India in the matter of reservation based on residence requirement and institutional preference accords with the view taken by us in that behalf. We may point out that even if at some stage it is decided to regulate admissions to the MBBS course on the basis of all India entrance examination, some provision would have to be made for allocation of seats amongst the selected candidates on the basis of residence or institutional affiliation so as to take into account the aforementioned factors.
22. So much …..
We are therefore of the view that so far as admissions to post graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university may be given preference for admission to the post graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50% of the total number of open seats available for admission to the post graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.
Perusal of the aforesaid judgment reveals that no reservation should be provided for admission in PG courses either on residential or institutional basis. The Hon’ble Apex court however taking note of other aspects held that certain percentage of seats may be reserved based on institutional preference i.e. students passing MBBS course from a medical college/ university can be given preference in PG course in the same medical college/ university. A ceiling of 50% was imposed. With the aforesaid itself there exist answer to the first ground raised by learned counsel for the petitioners. Merely for the reason that petitioners are domicile of State of Rajasthan cannot mean that they have to be made entitled for the seats which are kept for institutional preference.
After the aforesaid issue, controversy further remains regarding admission in MBBS Course against seats meant for All India Competition through CPMT. In the case of Dr Parag Gupta (supra) it was for the first time held that students of same State who had studied their MBBS course in different States based on all India quota cannot be debarred to compete in PG courses in their home State. Same view was taken in the case of Vineet Singh (supra).
Subsequent to the aforesaid two judgments, Hon’ble Apex Court considered and decided case of Abhinav Aggarwal (supra) and Magan Mahrotra (supra). In the case of Abhinav Aggarwal (supra), it was held that when admission in PG courses are provided as per judgment of the Supreme Court then there has to be a uniform policy in the entire country. In para 1 the criteria/condition for entrance examination for PG course in Delhi University has been quoted, which is reproduced herein for ready reference:-
The petitioners in these cases claim to hail from Delhi and have completed MBBS course from colleges situate in different parts of the country. They state that they passed entrance examination held by the Government of the States concerned in which the colleges are situate or the entrance test conducted by such colleges that the classmates of the petitioners who studied in Delhi and continued their study in the medical courses also in one or the other medical college have an advantage over the petitioners as they are being considered for admission to PG medical courses in Delhi University by providing for institutional preference. Delhi University has prescribed the conditions for admission as follows:
Requirement for admission to post-graduate degree courses:-
(A) 1. Candidate must have completed satisfactorily one year of compulsory rotating internship after passing the final MBBS examination from University of Delhi on or before 31.3.2001 and must have full registration with the State Medical Council/Medical Council of India.
2. The candidate who has passed the MBBS examination from a university other than Delhi University, having been allotted to the same under the 15% all India quota by the Director General of Health Services, would also be eligible if he/she is a permanent resident of the National Capital Territory of Delhi, (the proviso has been incorporated as per the direction of the Hon’ble Supreme Court in Dr Parag Gupta case and is subject to further order of the Hon’ble Supreme Court) and if he/she also fulfills all the following three conditions:
(i) He/she has passed 10+2 examination from the National Capital Territory of Delhi.
(ii) He /she is a permanent resident of the National Capital Territory of Delhi.
(iii) He/she has passed the MBBS examination from a university other than Delhi University, having been allotted to the same under the 15% all India quota by the Director General of Health Services if he/she is a permanent resident of the National Capital Territory of Delhi.
Note: (i) A candidate must produce any one of the following documents to prove his/her permanent residence in the National Capital Territory of Delhi:
(a) Ration card (b) Voter’s identity card
(c ) Passport (d) Driving licence
(ii) The candidate must submit documentary proof for Serial Nos. (i) and (iii).
In para 7, it was explained that judgment in the case of Dr Parag Gupta is applicable only for those students who had undertaken their MBBS course pursuant to the admission based on all India entrance examination. It was clarified that those who have taken entrance in MBBS course other than by way of all India competition held by the Ministry concerned would not be eligible for admission against State quota for PG Courses. Para 7 of the aforesaid judgment is also quoted herein. For ready reference para 7 is quoted hereinbelow:-
7. In a way the decision in State of UP Vs Vineet Singh, covers the matter in dispute. In that case extending the principle in Dr Parag Gupta case, the High Court of Allahabad had directed to allow taking entrance examination in respect of all students who had migrated to other States and sought for admission in their home States. This Court explained that the decision in Dr Parag Gupta case was applicable only to those selected pursuant to 15% all India quota provided under a scheme framed in Dinesh Kumar case. It is submitted that in these cases independent of Dr Parag Gupta case the petitioners’ cases have to be examined as to whether the petitioners are discriminated against other students in their home States. The question of attaining uniformity in the matter of admission in PG medical courses in all medical colleges is wrought with many complexities. Students who have studied outside Delhi are also eligible to the 25% all India quota provided under the scheme for admission to PG medical courses. In view of the law declared by this Court and directions issued pursuant thereto, schemes have been framed by respondents institutions. We reiterate that it would be ideal for the States/authorities concerned to achieve uniformity by adopting appropriate criteria in the matter of admission to PG courses in medical colleges.
In the para quoted above, the Hon’ble Apex Court reiterated requirement of uniform policy in the country though supported the issue taken up by the petitioners herein. The matter then travelled further before the Hon’ble Apex Court while considering the matter of Magan Mehrotra (supra) which is the judgment goes against the petitioners. Magan Mehrotra (supra) case entirely covers the issue as raised herein. It was again a case pertaining to Delhi University. The rule pertaining to eligibility in PG courses in Delhi University has been quoted above while quoting para 1 of the judgment in the case of Abhinav Aggarwal (supra). Hon’ble Apex Court in the case of Magan Mehrotra considered the judgment of Parag Gupta and subsequent judgments in the case of Vineet Singh. In aforesaid two cases candidates completing MBBS course based on all India entrance examination were held eligible for PG courses in home State however in the case of Magan Mehrotra (supra) aforesaid was not accepted, as such para 8 of the aforesaid judgment is quoted hereinbelow:-
8. Be it stated that in that particular case the Court was in fact not required to examine the issue that arose in Pradeep Jain or Parag Gupta cases and answered in those two cases. A bare look at the judgment of the three Judge Bench in Pradeep Jain case and two Judge Bench in Parag Gupta case in relation to the question of preference in the postgraduate course, it cannot be held that Parag Gupta case took a different view by upholding the residential preference, in essence, which was contrary to the judgment of the three Judge Bench in Pradeep Jain case. Independently, on examining the issue of preference, we are also of the considered opinion that the decision rendered by this Court in Pradeep Jain case had taken the correct criterion into consideration and we therefore, agree with the principles evolved and the ratio given in Pradeep Jain case so far as it relates to admission into the postgraduate courses and the question of institutional preference to be given to those who had studied their undergraduate courses in the very institution as against the 15% quota on all India basis. In this view of the matter, the impugned Bulletin of Information issued by Delhi University in relation to the postdoctoral (DM/MCh) postgraduate degree must be held to be contrary to the directions of this Court in Pradeep Jain case and the same is accordingly quashed. However, this order shall be made effective from the next academic session.
Perusal of aforesaid para shows that Delhi University’s Instructions Bulletin was quashed in reference to Pradeep Jain’s case. Therein two groups were evolved. One relates to admission in PG Courses from the very same institution, as against second being admission based on 15% quota on all India basis. Delhi University Bulletin was similar to that of Rajasthan University prior to amendment under challenge and Delhi University Bulletin has been quashed thus Rajasthan University also amended its Instructions Booklet.
The bulletin which has been quashed contained rule to permit even those candidates who had completed their MBBS course from other State against 15% quota meant for all India entrance examination. Pradeep Jain’s case permit only institutional preference of the same University and not of other institution, therefore, bulletin of Delhi University was quashed because if a student of a State undertake his MBBS course from other State yet given preference then it becomes a preference/reservation based on residence and not on institutional basis. In view of the aforesaid, claim of the petitioners for providing preference or their entry against State quota based on their domicile would be contrary to three-Judge Bench judgment in the case of Dr Pradeep Jain hence cannot be accepted. Relevant portion of para 22 is quoted herein again.
22. So much …..
We are therefore of the view that so far as admissions to post graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university may be given preference for admission to the post graduate course in the same medical college or university but …
In view of the above, if amendment in the Rules is looked into then amended Rule provides preference solely based on institution and that too of a University from where MBBS course was undertaken by a candidate. Only preference permitted by the Hon’ble Apex Court in Dr Pradeep Jain case is clear from perusal of above quoted para. If the claim of the petitioners is accepted then they are claiming their eligibility against quota which otherwise can be provided to a student undertaking MBBS course from the same University hence challenge to the amendment cannot be accepted rather same is in consonance to the directions of the Hon’ble Apex Court in the case of Dr Pradeep Jain and Magan Mehrotra (supra).
Now, the question is as to whether respondents can provide different criteria for in-service candidates. Before addressing the aforesaid issue, it is necessary to indicate that open category quota cannot be mixed up with in-service candidates quota. They fall in separate categories as elaborately indicated by the Hon’ble Apex Court in the case of State of MP & ors Vs Gopal D Tirthani & ors (2003) 7 SCC 83. In the aforesaid case, earlier judgments of the Hon’ble Apex Court in the case of K Duraisamy (supra) and AIIMS Students’ Union Vs AIIMS (2002) 1 SCC 428 were considered. In Gopal D Tirthani case (supra) it was held that in-service candidates’ selection to PG courses is a different source for entry and is different than open/general category candidates quota. It is based on intelligible differentia. A complete discussion of the issue exist in para 19 to 21 of the aforesaid judgment. In view of the aforesaid, parity cannot be claimed in regard to different quotas and source of admission.
In fact, if the division of total seats of State of Rajasthan is taken note of then out of 386 seats meant to PG courses, 50% of it goes for all India competition. Out of remaining 50%, the quota is equally divided in between open/general category candidates and in-service candidates. Thereby, out of total seats, only 25% of the seats are filled purely on institutional preference against which petitioners are claiming their right. The petitioners are otherwise having right to compete against 50% seats of State quota to be filled in by way of all India competition. Hence, even if different criteria exist for in-service candidates the petitioners having no right to get admission against in-service quota, cannot question the same and cannot claim parity of rules more so when there exist common entrance examination for open category candidates as well as in-service candidates. In view of aforesaid, even the second argument raised by the petitioners cannot be accepted.
So far as third argument raised by the learned counsel for the petitioners is concerned, the criteria and the rules in the year 2009 was different than the rules in the year 2010. That being the position, the admission in PG courses for the year 2010 would necessarily be on different criteria hence criteria as was existing cannot be invoked for drawing benefit as claimed herein. It is however necessary to state that the earlier criteria and the rules prevalent in the State of Rajasthan for open category was same as was in Delhi University. In Magan Mehrotra case (supra) such a criteria was not approved and a direction was given to the Delhi University to issue fresh Information Bulletin.
In view of the aforesaid, when earlier rule of the Rajasthan University of Health Sciences/ University of Rajastahn was para materia to Delhi University and Delhi University Information Bulletin having been struck down as aforesaid, it was not legally permissible for University of Rajasthan/ Rajasthan University of Health Sciences to proceed ahead contrary to the judgment of the Hon’ble Apex Court in the case of Magan Mehrotra and Pradeep Jain’s case (supra).
In view of the aforesaid discussion, I find no merit in the writ petitions. Hence, same are dismissed.
(MN BHANDARI), J.
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