JUDGMENT
Pratibha Upasani, J.
1. Both these writ petitions are being disposed of by this common judgment and order, as in both these writ petitions the facts, the grounds for assailing the validity of the Rules as also the prayers are common.
2. In Writ Petitions No. 303/2000, the petitioner, Dr. Vishal Vinayak Bhende has challenged the constitutional validity of Rules III(2)(a) and III(2)(b) and III(3) of the Admission of Post Graduate Degree Courses of Goa University at Goa Medical College Rules, 1998 (PG Admission Rules, 1998, for short).
3. In Writ Petition No. 349/2000, the petitioner has challenged the constitutional validity of Rule 3(2) of the Goa (Admission to Post Graduate Diploma Courses of Goa University at Goa Medical College) Rules, 1999 (Diploma Admission Rules, for short).
4. In Writ Petition No. 303/2000, the petitioner has prayed for declaration under Article 226 of the Constitution of India that Rules III(2)(a) and III(2)(b), so also Rule III(3) (this ground was subsequently, given up by the petitioner) of the PG Admission Rules, 1998 are unconstitutional, ultra vires and void and the petitioner has prayed for writ of mandamus or writ in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of the India, directing the respondents (respondents No. 1 and 2) to grant admission to the petitioner to the Post Graduate Degree/Diploma Courses which commenced in September, 2000 at the Goa Medical College. Writ of certiorari or writ in the nature of certiorari also is sought praying that the admission granted to respondents No. 3 to 44 (in Writ Petition No. 303/2000) and respondents No. 3 to 32 (in Writ Petition No. 349/2000) be quashed.
5. The first petition is filed on 31-8-2000, while the second petition is filed on 9-10-2000.
6. The case of the petitioner, as revealed from the narration of both the petitions, is as follows :
The petitioner is a citizen of India and is resident of State of Goa for over 10 years. He passed M.B.B.S. Examination of the Goa University from Goa Medical College in May, 1997 and secured 61.64% marks. He completed compulsory rotatory internship of one year 3 months (23-6-1997 to 22-9-1997) in Goa Medical College and 9 months (29-9-97 to 28-6-98) in Lokmanya Tilak Municipal Medical College, Sion, Bombay. Lokmanya Tilak Municipal Medical College, Sion, Bombay is affiliated to the University of Bombay and is recognised by the Medical Council of India for Postgraduate Degrees in Medicine and Surgery.
7. The petitioner has stated that he applied for admission to Postgraduate Degree Courses of the Goa University at Goa Medical College in September, 1998, March, 1999 and September, 1999. He was, however, refused admission and the reason given was that the petitioner had not completed full internship of one year at the Goa Medical College and he was treated as falling under Rule III(2)(b) and, as such, there was no place for the petitioner as the number of the candidates entitled to preference under Rule III(2)(a) itself was far in excess of the seats available for the admission. The petitioner was placed under category II (2nd preference vide Rule III (2)(b)).
8. The petitioner has stated that on 18-10-2000, the Dean, Goa Medical College notified that 11 Post Graduate Degree Seats and 9 Post Graduate Diploma Seats of Goa University were available for admission during the first term of academic year 2000-2001.
9. The petitioner has further stated that on 6-9-2000, he applied for Postgraduate Degree/Diploma of Goa University at Goa Medical College for academic year 2000-2001 (September, 2000) by one common application. The last date for applying was 7-9-2000. Desiring to try his luck for admission to Postgraduate Degree Courses at Goa Medical College, the petitioner sought legal advice in the third week of August, 2000. The petitioner was advised that Rule III(2)(a) and 2(b) which had been held out as blocking admission to the petitioner, were unconstitutional and that what was relevant was the compulsory internship of one year not the college in which the internship was done. The petitioner was also advised that Rule III(3) Order of Merit, was also unconstitutional, in so far as it did not take into account the marks of the candidate in the subject (Medicine, Surgery, etc.) in respect of which he sought admission for the Postgraduate Degree. This ground, however, was subsequently, given up by the petitioner.
10. The petitioner, therefore, challenged Rules III(2)(a), III(2)(b) and III(2)(c) of the PG Admission Rules, 1998 and Rule III(2) of the Diploma Admission Rules, inter alia on the following grounds :
(i) The said Rules impaired the fundamental right guaranteed by Article 14 of the Constitutional of India.
(ii) The classification of candidates made by Rule III(2)(a) into those who completed the internship in Goa Medical College and those who completed it outside Goa Medical College (where both Colleges are affiliated to Universities and recognised by the Indian Medical Council) is not founded on any intelligible differentia and has no relation to the object sought to be achieved by the PG Admission Rules, 1998.
(iii) Rule III(2) is in substance a rule of reservation, not of preference. Such reservation is arbitrary, unjustified and illegal. Even, if it is assumed to be a rule of preference, still it would be arbitrary, unreasonable and illegal. The question of preference can arise only between the candidates having equal marks at the M.B.B.S. Examination of Goa University. The petitioner has annexed as Annexure P. 1 to the petition. (Writ Petition No. 303/2000), the said notification issued by respondent No. 2, Government of Goa. This notification contains Rules for admission to Postgraduate Degree Courses of the Goa University, at the Goa Medical College, Bambolim. These Rules are with respect to number of seats and admissions, eligibility, preference and order of merit, etc. Eligibility, Preference and Order of Merit, read, as under :
“III. Eligibility, Preference and Order of Merit.–
(1) Eligibility :
Candidates applying for admission to the Postgraduate Degree Courses shall :—
(i) posses the M.B.B.S. degree of the Goa University or any other University recognized as equivalent thereto by the Goa University and the Medical Council of India;
(ii) complete compulsory Rotatory Internship of one year on or before the last date of receipt of application;
(iii) have resided in the State of Goa for a minimum period of ten years preceding the last date of receipt of applications.
(2) Preference :
While selecting the candidates for admission to Postgraduates Degree Courses, preference in the following order shall be observed ;–
(a) Candidates who have graduated from the Goa Medical College and have also satisfactorily completed full internship at the Goa Medical College. If such candidate are not available, then –
(b) Candidates who have graduated from the Goa Medical College but have done the internship outside the Goa Medical College. If such candidates are not available, then —
(c) Candidates who have graduated from colleges other than the Goa Medical College but who have completed the internship in the Goa Medical College. If such candidates again not available, then –
(d) Candidates who have graduated from and who have done their internship in colleges, other than the Goa Medical College.
(3) Order of Merit :—
(i) The order of merit shall be determined by the percentage of aggregate marks.
(ii) Aggregate Marks :—The percentage of aggregate marks shall be arrived at by totalling the marks obtained in the 1st, 2nd and 3rd M.B.B.S. Examinations (viz. Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine, Medicine, Surgery, Eye and E.N.T., Obstetrics and Gynaecology, and Preventive and Social Medicine) and reducing it to a percentage after the following deductions :—
(a) …
(b) …
(iii) …
(iv) …
(v) A candidate, who has obtained less than 50% aggregate marks as determined above, shall not be eligible for admission to the postgraduates degree, courses”.
11. Rule III(2) in any event does not deny admission to candidates who have completed the internship partly in Goa Medical College and partly in colleges outside Goa Medical College.
12. The petitioner states that he has no other alternate, adequate, quick and efficacious remedy available to challenge the impugned Rules and hence these petitions are filed by him demanding justice.
13. Initially, the petitions were filed against only Dean, Goa Medical College, Bambolim and the State of Goa, through Chief Secretary to Government of Goa. Rest of the respondents came to be joined subsequently by amending the petitions, when the Dean notified on notice board the provisional merit list of Postgraduate Degree and Diploma Courses for the academic year 2000-2001 (September, 2000). According to the petitioner, the said provisional list is illegal as it is notified in implementation of the impugned Rules which are bad for the reasons mentioned in the petition. Hence, the list has to be quashed and the petitioner be given admission in the batch of September, 2000 only in the Postgraduate Degree Courses or in the Postgraduate Diploma Courses in the branch desired by him (Postgraduate Diploma in Child Health).
14. Respondent No. 1/Dean Goa Medical College has filed affidavit-in-reply wherein all the contentions of the petitioner are denied. In para 7, it is stated that the said rules were published under Notification No. 13/6/80/EHD dated 2-3-1988, published in the Official Gazetted dated 31-3-1988. It is further stated that prior to this, these Rules were framed in the year 1982, wherein eligibility for admission to the Postgraduate Degree Courses and Diploma Courses was specified. It is stated that as per the said Rules which were in force prior to 1998, admission was given to the candidates on the basis of similar preferences as existing in the present case. It is pointed out that preference to the institutional candidates was existing in the old Rules of 1982 and 1988 also.
15. It is further submitted by respondent No. 1 in his affidavit-in-reply that in view of the various judgments of the Supreme Court and the guidelines of Medical Council of India and for safeguarding the interest of the candidates from the State of Goa, there was a need to change the rules. It is further stated that before framing Rules in 1998, the Government constituted a committee to consider the Draft Rules which consisted of Dean, Goa Medical College, Professor and Head of Department of Pediatrics, Professor and Head of Department of Medicine, Professor and Head of Department of Orthopaedic Surgery, Professor and Head of Department of Anatomy. This expert Committee gave its views. The said expert Committee did not recommend any change to the Rule of Preference which is presently under Rule III(2)(a) and (b) which was existing under the old Rules. Thereafter, the Rules were examined by the Academic Section and the Law Department and thereafter, the Rules were framed by the Government.
16. It is further stated by respondent No. 1/Dean, Goa Medical College that the State has powers to prescribe preferences for the students/candidates from the State. It is further stated that as per the Admission Rules, 25% of the available seats are reserved for the candidates qualifying at the All India Postgraduate Entrance Examination (All India Quota) and that presently there are 72 seats for one academic year, out of which 42 seats for Postgraduate Degree Courses and 30 seats for Diploma Courses. It is further pointed out that out of these 42 seats in the Postgraduate Degree Courses and 30 seats in Diploma Courses, 25% goes for All India Quota.
17. It is further stated that by respondent No. 1 and 2 that the Goa Medical College is managed and administered by the State of Goa through State funds and that the State Government has every right to make provisions in order to safeguard the interest of the local institutional candidates. It is further submitted that as per the Rules, preference has been given to the students/candidates from the State Institutional candidates, that is the candidates residing in Goa for 10 years, passing their degree in Goa Medical College and completing internship through Goa Medical College. It is further submitted that in case no preference is stipulated, then the students/candidates from any part of the country would be entitled to apply for admission and the candidates from the institution of this State would suffer. It is stated that 25% seats are already available for All India Quota. Therefore, the preference in the Rules cannot be termed as “Reservation”.
18. It is further submitted by respondent No. 1 and 2 that the Goa Medical College Rules for Postgraduate Degree Courses, 1998 were published in the Official Gazette dated 4-6-1998. Thereafter, there was an amendment to the said Rules, which was published in the Official Gazette dated 30-9-1999. Thereafter, the candidates were admitted to the Postgraduate Degree Courses in September, 1998, March, 1999, September, 1999 and March, 2000. These candidates are undergoing their course in the Goa Medical College.
19. It is further stated by respondent No. 1 and 2 that the petitioner had passed First M.B.B.S. Examination not from the Goa Medical College, but from BLDE Medical College, Bijapur of Karnataka University Dharward from the State of Karnataka. Thereafter, the petitioner got transferred to Goa Medical College in the Second M.B.B.S. Course and completed his M.B.B.S. Course in May, 1997. The percentage of aggregate marks by totalling marks obtained at the 1st, 2nd and 3rd M.B.B.S. Examination of the petitioner was 61.64%. It is further pointed out that the petitioner did his rotatory internship for three months only in Goa Medical College from 23-6-1997 to 22-9-1997. Thereafter, the remaining 9 months, the petitioner did his internship in Lokmanya Tilak Medical College at Sion, Mumbai, which is affiliated to the Bombay University. When the petitioner was doing his internship, the Preference Rule which is at present stipulated under Rule III(2)(a), (b), was very much in existence under the old Rules also and the petitioner was fully aware of this Preference Rule and, inspite of this, he chose not to complete his internship at the Goa Medical College. According to respondent No. 1, the petitioner has done his internship from outside Goa Medical College and, therefore, can be considered only under Rule III(2)(b).
20. The respondent No. 1 has further placed on record the following facts with respect to the petitioner :
The petitioner had applied for Post Graduate Degree Course at the Goa Medical College in September, 1998. The petitioner was treated as falling under Rule III(2)(b) of the Postgraduates Degree Courses Rules. Initially, his percentage was wrongly shown as 56.77%, which was immediately corrected as 61.64%. It is denied by respondent No. 1 that the petitioner was refused admission. It is stated by respondent No. 1 that in September, 1998, seats for Postgraduates Degree Courses for Anatomy and Forensic Medicine were available. However, the petitioner did not opt for those seats as he choose to remain absent for the interview. The seats in Diploma in Forensic Medicine and Diploma in Preventive and Social Medicine were offered to the petitioner, but the petitioner did not accept the same.
21. Respondent No. 1 has further placed on record that the petitioner had also applied for admission in March, 1999 and September, 1999. At that time also, the petitioner was considered under Rule III(2)(b) of the Postgraduate Degree Courses Rules. During March, 1999, three seats of Postgraduate Courses were available, one in Anatomy and two seats in Forensic Medicine. In September, 1999 also, two Postgraduate Degree seats for Anatomy, one seat for Physiology and three seats for Forensic Medicine were available, but the petitioner did not opt for any of those available seats. Respondent No. 1 stated that the petitioner did not apply in March, 2000 at all. In the aforesaid circumstances, it is submitted by respondent No. 1 that it is not correct to say that the petitioner was refused admission as alleged by him.
22. It is further submitted by respondent No. 1 that after filing the present petition, namely Writ Petition No. 303/2000, on 31-8-2000, the petitioner applied for Postgraduate admission in the Goa Medical College. He was considered under category Rule III(2)(b) and since the candidates falling under category Rules III(2) were considered for the available Degree Courses, the petitioner had option to choose seats available in Diploma Courses in Forensic Medicine and Preventive & Social Medicine. The petitioner, however, did not opt for Diploma Courses. Thereafter, Selection Committee on 15-9-2000 selected 11 students for Postgraduates Courses and 7 students for Diploma Courses. Merit list was submitted to this Court on 19-9-1999.
23. Respondent No. 1 further submitted that the internship is a part of M.B.B.S. Course and is required to be undergone by the candidates compulsorily. It is submitted that in the present case, the petitioner has not completed his internship in Goa Medical College. It is reiterated that Rule of preference was in existence since long, of which the petitioner was aware, but still he opted to go outside Goa to complete his rotatory internship.
24. It is submitted by respondent No. 2 that there is no reservation whatsoever in the present case and that no reservation is contemplated under the Rules in case of the students passing out their M.B.B.S. Degree from Goa Medical College, but preference is given to the candidates who pass out their M.B.B.S. Degree from Goa Medical College.
25. It is further submitted that as a matter of Government Policy, when the Government is bearing expenditure and running the entire college, the teaching institution, the Government has got power, right and authority to give preference and priority as also frame Rules with an intention to give preference to particular region where there are limited opportunities of medical education. It is submitted that in the State of Goa there is only one Medical College. The students passing out from Goa Medical College have basically to complete their Postgraduates Degree or Diploma Courses from this college. For every student it would not be possible to afford higher education in some other States or some other colleges outside the State. It is, therefore, necessary that the students who pass out and secure degree, from this college are given adequate protection in order to help a particular region, where there is only one Medical College. It is more so, as the candidates who are the residents of this region are more likely to remain in the State of Goa and serve the State of Goa, if they are preferred for admission in the Goa Medical College for Postgraduate Courses, especially there being only one college in the State and opportunities are limited.
26. It is further submitted by respondent No. 2 that one more consideration on which the Rule is justified is in the case of women students. It is submitted that there are large number of women students in whose cases, regional or residential preference is required since their parents may not be willing to send them outside the State for medical education.
27. Respondent No. 2 further pointed out that after judicial examination, a certain percentage of reservation based on residential requirement and institutional reservation has been upheld by the Apex Court. It is further pointed out that merit is not given a go by, as admission is given only to those who have secured minimum 50% marks at the M.B.B.S. level. It is, therefore, submitted that reservation and preference in law are distinct and different concepts and that the Rule of preference which is assailed by the petitioner cannot be struck down. It is, therefore prayed by respondent Nos. 1 and 2 that the petition be dismissed.
28. Rest of the respondents who have been joined by the petitioner, are the students whose names have been displayed in the merit list. The contents of their affidavits are almost identical and can be narrated as follows :
The petitioner had applied for admission to the Postgraduate Degree Courses of Goa University at the Goa Medical College as far back as in September, 1999 and was refused admission 2 years back on the very same ground, namely that the petitioner had not completed fully internship of one year at the Goa Medical College and consequently, he was treated as falling under Rule III(2)(b). It is submitted therein that inspite of this, the petitioner did not challenge the Rules and refusal of his Admission to Postgraduate Degree Course in 1998. The petitioner is, therefore, guilty of laches and is not entitled to challenge the Rules and the refusal two years after he had obvious knowledge of the said Rules. It is also contended that the petitioner did not get admission to the First M.B.B.S. Course at Goa Medical College, since he did not secure necessary marks. Consequently, the petitioner got himself admitted to a private Medical College on payment of capitation fee. It is further contended that Goa Medical College is the only Medical College in State of Goa and the said Rule of preference is intended to ensure the medical facilities in the State of Goa and to ensure that services of those undergoing internship are available to the people of Goa. It is denied by them that Rule III(2) is Rule of Reservation. It is submitted that regulating selection procedure is within the competent of the State Government. It is submitted that the Rules do not contemplate completion of internship partly in Goa Medical College and partly in colleges outside Goa Medical College. It is therefore, prayed by them that the petition be dismissed. It is also submitted that if the petition is allowed, it will cause undue hardship to the students who have already joined the course and are undergoing their studies.
29. It is specifically denied by all the respondents that the petitioner was denied admission at any time either for Postgraduates Degree Courses or Postgraduates Diploma Courses. It is highlighted by the respondents that the petitioner wanted admission in a particular branch only as per his choice and that this happened in all the previous years also. It is highlighted that the petitioner knew about the preference rule and that inspite of knowing this, he did not bother to continue his internship in Goa Medical College and choose to go to Bombay. It was also pointed out that the seats for Postgraduates Courses in Branch of Anatomy and Forensic Medicine though offered, were not opted for by the petitioner. It is also highlighted that though these Rules are in existence for a very very long time, the petitioner has chosen to challenge the said Rules only now when the courses have already begun from September, 2000 and the students are in the midst of undergoing their studies. It is highlighted that though the petitioner was denied admission on the very same ground of “Preference Rule” in the September, 1998, March, 1999 and September, 1999, the petitioner did not do anything and kept quite. It also highlighted that if the petition is allowed, it will upset the entire admission procedure and will entail untold harassment to the respondents/students who have been admitted as per the Rules in existence.
30. Mr. Kakodkar, the learned Counsel appearing for the petitioner submitted that the Rule of Preference is in fact a reservation and that Rule III(1) which speaks about eligibility, is itself sufficient and covers everything. According to him, Rule of preference is only a backdoor way of putting one more condition for the eligibility criteria and that it amounts to total reservation and hence, it is violative of Article 14 of the Constitution of India. According to him, merit should be the only criteria in selection of candidates to Postgraduates Degree Courses, that the petitioner has secured 61.64% marks that those candidates who have secured less than the marks secured by the petitioner should not be given Admission to Postgraduate Degree Courses/Diploma Courses under the cover of Preference Rule. According to him when the petitioner has passed his M.B.B.S. Examination from Goa Medical College and when he has completed three months out of 12 months compulsory rotatory intership from Goa Medical College, the fact that he has completed remaining 9 months not from Goa Medical College, but from outside Goa, is a fact which is totally irrelevant and insignificant. According to him, it is nothing but reservation, that the college has not correctly interpreted the Rules of Preference, that it has nothing to do with the object sought to be achieved and that it is unreasonable and hence should be struck down as being violative of Article 14 of the Constitution.
31. It is also submitted by Mr. Kakodkar, the learned Counsel for the petitioner that the Medical Council of India Rules only state that a candidate after passing his M.B.B.S. Examination has to complete one year rotatory internship and that this is a mandatory requirement. He argued that the Rules, however, do not say that this mandatory internship of one year has to be completed from only one institution. He also argued that the Goa Medical College has given no objection certificate dated 14-8-98 to the petitioner about he satisfactorily completing three months compulsory internship training in Goa Medical College and about he completing remaining nine months at Lokmanya Tilak Municipal Medical College, Sion, Bombay and was qualifying for the award of M.B.B.S. Degree of Goa University.
32. Mr. Kakodkar, to buttress his arguments relied upon a number of judgments of the Supreme Court and Bombay High Court. They are as follows :
(1) Arvind Laxmanrao Kinge v. State of Maharashtra, ;
(2) State of Rajasthan and another v. Dr. Ashok Kumar Gupta and others, ;
(3) Municipal Corporation of Greater Bombay and others v. Thukral Anjali Deokumar and others, ;
(4) Dr. Rakesh Ravi v. The Dean, Goa Medical College and others, 1998(1) Goa L.T. 270 ;
(5) Medical Council of India v. State of Karnataka and others, ;
(6) Dr. Preeti Srivastava and another v. State of M.P. and others, ;
(7) Dr. Gaurish V. Naik Gaunekar and others v. State of Goa and others, ;
(8) Dr. Archan Marian D’Mello v. The Dean, Goa Central College, and others, ;
(9) Dr. Parag Gupta v. University of Delhi and others, ; and
(10) An Unreported judgment of this Court in Dr. Sudhir Kumar Solanki v. Dean, Goa Medical College and others, in Writ Petition No. 305/99.
33. The main thrust of the arguments of Mr. Kakodkar was that the Rules of Medical Council of India do not specifically lay down that one year mandatory rotatory internship must be completed in only one college, that there is no compromise with the merit, more so in the Postgraduate Degree Courses and that because of the impugned preference rule, which is unjustifiable and arbitrary, the candidates who have secured lesser marks than the petitioner, have been given admission to the Postgraduates Degree/Diploma Courses. It is also his contention that the Preference Rule is nothing, but wholesale reservation, that eligibility Rule covers every thing and nothing can be added more in the eligibility clause and that the Preference Rule is nothing, but adding one more eligibility Rule which has no relevance to the object sought to be achieved and, there, the same should struck down. This, in short, is his argument.
34. In so far as the proposition that merit and merit alone should be the sole criteria for any education faculty and more so in the Postgraduate Courses, in our opinion, this proposition cannot be quarrelled with. This indeed is the ideal situation which must prevail. In fact, this is what the Supreme Court held in no ambiguous terms in the case of Dr. Preeti Srivastava and another v. State of M.P. and others, 1997(7) Supreme Court Cases 120. In that case the following issue arose for consideration before the Constitution Bench of the Apex Court :
“The question is whether apart from providing reservation for admission to the postgraduate courses in Engineering and Medicine for special category candidates, it is open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission under the reserved category.”
35. The abovementioned issue arose in Dr. Preeti Srivastava’s case (supra) in the background of the development in the State of U.P. and M.P. in respect of admission to Postgraduate Degree/Diploma Courses in Medicine, through the Postgraduate Medical Entrance Examination (PGMEE). The States progressively reduced the minimum qualifying marks for reserved category candidates appearing in PGMEE and the constitutionality of the GO, Ordinance and Act concerned were impugned before the Supreme Court. As a result, the Constitution bench addressed itself to the issue whether for admission to the Postgraduates Medical Courses, which was permissible to prescribe a lower minimum percentage of qualifying marks for the reserved category candidates as compulsory to the general category candidates and the Supreme Court held that excellence in standards of education and admission criteria, can be laid down under List I, Entry 66 and List III, Entry 25 by Central Legislation, that State’s competence under List III, Entry 25 to control or regulate higher education is subject to the standards so laid down by Union of India and that even though the states have competence to prescribe Rules for Admission to Postgraduate Medical Courses, but that they should not be inconsistent with or should not adversely affect the standards laid down by the Union of India or its delegates. The Supreme Court held that fixing minimum qualifying marks for passing entrance test for Admission to Postgraduate Courses is concerned with the standard of Postgraduate Medical education and that once minimum standards are laid down, the States are competent to prescribe any further qualifications for selecting better students as that would not adversely affect the standards so laid down, that there is difference between “Eligibility” and “Qualifications”, but it further held that it is for the Medical Council of India to determine reservation of seats, if any, to be made for SCs/STs/OBCs, the extent thereof and lowering of qualifying marks in their favour on the basis of balancing of public interests.
36. Relying upon Medical Council of India v. State of Karnataka and others, , Mr. Kakodkar submitted that Regulations framed with previous sanction of Central Government have statutory force and that the State Government/University are not entitled to lay down the Rules about the number of admissions and that the Medical Council of India does not anywhere lay down the mandatory internship, which is rotatory, has to be completed in only one college and that it cannot be completed in splitting it up in different colleges.
37. Relying upon the Municipal Corporation of Greater Bombay and others v. Thukral Anjali Deokumar and others, , Mr. Kakodkar pointed out that there is no intelligible differentia for the classification by way of collegewise institutional preference as provided by the impugned Rules distinguishing the preferred candidates in respect of each college. In this case, the Supreme Court upheld the judgment of the Bombay High Court who had struck down Rule 4(A) framed by the Bombay Municipal Corporation and part of Rule 5 framed under the Government Resolution, that is to say, only in respect of application to the Grant Medical College in the city of Bombay relating to Admission to Postgraduate MD Course. Mr. Kakodkar argued that in this case, the Supreme Court agreed with the Bombay High Court when it stated that though Bombay Municipal Corporation had to spend a lot of money for the colleges run by it, but that would be no ground for making discrimination between the students of the Municipal Colleges and those of the Government Colleges affiliated to the same University for the purpose of admission in the Postgraduates Degree Course and that such discrimination would not serve any object which could be justified on any rational basis. Mr. Kakodkar argued that the petitioner had passed his M.B.B.S. Degree from Goa Medical College only and that he had done only three months internship in that college, the college authority had given him certificate about completion of internship, though he had done internship of 9 months in Lokmanya Tilak Municipal Medical College, at Bombay. He argued that in view of this, the petitioner cannot be discriminated against the students who had also passed M.B.B.S. Examination from Goa Medical College, and who had also completed 12 months’ internship from Goa Medical College only. He submitted that there is no distinction between the petitioner and the other group of students and hence, the rule of preference of which the petitioner has become the victim, has to be struck down.
38. Relying upon Dr. Parag Gupta v. University of Delhi and others, , Mr. Kakodkar submitted that the petitioner belongs to the same university and to the same State and that though Universitywise preference was permissible as laid down in Dr. Parag Gupta’s case, collegewise preference was not. He submitted that singling out the petitioner just because he completed 9 months internship out of the total period of one year from other college outside State of Goa and outside the college from which he obtained M.B.B.S. Degree, is unreasonable.
39. Relying upon Dr. Archan Marian D’Mello v. The Dean, Goa Central College & others, 2000(1) All.M.R. 377, he drew attention of the Court and submitted that in this case weightage of 1% to 5% of marks per year to the students passing from the same institution prior to starting of M.D.S. course was held to be discriminatory, as it has nothing to do with any valid object and was, therefore, struck down by the Division Bench. He especially drew attention of the Court to para 7 of the said judgment, wherein it is observed by the Division Bench of this Court that :
“…From the students from Goa who have passed from same institution a sub-class who have passed the examination few years before is carved out. This is not permissible”.
40. Relying upon Arvind Laxmanrao Kinge v. State of Maharashtra, , Mr. Kakodkar pointed out that the admission given to the students by showing institutional preference was invalid and that the ratio of Dr. Pradeep Jain’s case, has to be followed. He submitted that interest of local candidates was sufficiently taken care of in the eligibility criteria itself and the preference criteria had no relationship with the object sought to be achieved and is, therefore, violative of Article 14 of the Constitution.
41. Mr. Kakodkar, on the point of challenging the rules belatedly, though being aware of it from 1998 itself, pointed out that since he is challenging the constitutional validity of he impugned rules, he can approach the Court at any time and that just because the was refused admission on the very ground, taking recourse to the very same Preference Rule in the year 1998 and twice in the year 1999, that should not come in his way. He submitted that the petitioner did not want to compete in All India Quota, nor does he want to compete in the next coming batch and that he wants the college to give him admission only in the batch which has commenced from September, 2000 and that too in a branch/faculty which the petitioner wants.
42. Learned Advocate General Mr. Nadkarni, on the other hand, vehemently argued that the very same Rules are in existence right from the year 1982, that these rules were very much there when the petitioner took admission for M.B.B.S. Degree and, it cannot be, therefore, said that the petitioner was ignorant about these Rules. He submitted that the petitioner made three attempts one in year 1998 and twice in the year 1999, but could not succeed and now he should not challenge these Rules and disturb all the admissions just because now he found it convenient to challenge them. He also pointed out that in fact seats were offered to him in the Postgraduates Degree Courses, as well as in the Postgraduates Diploma Courses even after applying Preference Rule, but the petitioner declined to accept the offer.
43. The learned Advocate General also submitted that the Rule of Preference is a reasonable rule and that it is only a process of elimination. He submitted that all those who are eligible can apply, but only those candidates are given admission who also come under the Preference Rule. He submitted that process of elimination cannot be branded as “Reservation”. He pointed out that Rule of Preference is to subserve the larger public interest and to protect the local students. He highlighted that in the State of Goa, there is only one University, namely Goa University and only one Medical College, namely Goa Medical College which is owned by the state. He submitted that it is within the competence of the State to frame Rules as far as Admission to Postgraduates Degree and Diploma Courses are concerned. The qualifying minimum marks are 50% and that no student who has been admitted to the Postgraduate Degree and Postgraduate Diploma Courses, has secured lesser than the qualifying marks as prescribed by the Medical Council of India.
44. The learned Advocate General further argued that when the State Government is making expenditure and running the entire College, it has got power, right and authority to give preference, priority and also to frame the Rules, with an intention to give preference to a particular region as there are limited opportunities of medical education in the State of Goa. He submitted that these local students are preferred as they serve the State of Goa and are likely to settle in the State of Goa for rendering services to the local community of Goa. He also submitted that there are large number of women students whose parents may not opt to send these women student outside Goa for medical education. He also submitted that as per the Supreme Court directives in Dr. Dinesh Kumar’s case All India entrance examination was held for remaining 15% seats of the total seats, which is called as All India Quota. He submitted that as far as remaining seats are concerned, the State can always frame Rules, giving preference to local candidates. He submitted that ‘reservation’ and preference in law, are distinct and different concepts and that Rule of Preference cannot be called “Reservation”, as it is only a method of choosing candidates by elimination.
45. Learned Advocate General further submitted that right from D.N. Chanchala v. The State of Mysore and others, , the Supreme Court has laid down that a candidate may have the minimum qualification, so as to make him eligible for entrance in a particular faculty, but that does not mean that his being eligible necessarily makes him entitled to admission in that faculty, for, admission can only be commensurated with the number of available seats in such a faculty. He also drew attention of the Court to para 17 of the D.N. Chanchala’s case (supra), wherein the Supreme Court has observed :–
“Since the Government has set up these colleges and maintains them, it has prima facie the power to regulate admission in its own institutions.”
He further drew attention of the Court to last part of para 22 of the said judgment, wherein it is observed by the Supreme Court, as follows :
“….Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided, of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the Rules. So long as there is no discrimination within each of such sources, the validity of the Rules laying down such sources cannot be successfully challenged. In our view, the rules lay down a valid classification …….”
46. Drawing attention of the Court to the abovementioned paragraph, Mr. Nadkarni, the learned Advocate General submitted that since it is a Government policy to protect all local interests and since they have been framed to subserve larger public interests, they have got an object which is sought to be achieved. Thus the classification has a nexus with the object which is sought to be achieved and, therefore, the Preference Rule cannot be branded as “arbitrary” and “discriminatory”.
47. Relying upon Dr. Jagdish Saran and others v. Union of India, , Mr. Nadkarni drew attention of the Court to the following paragraph of the judgment :
“…… However, equality is not negated or neglected where special provisions are made with the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. If a region is educationally backward or deficient in medical service, there occurs serious educational and health service disparity for that human region which must be redressed by an equality and service-minded welfare State. ….”
Mr. Nadkarni submitted that there is deficiency of medical services is the State of Goa as there is only one Medical College and, therefore, it is legitimate expectation that those local students who have taken education in this College will stay in Goa and serve the people. Without admitting that the Rule of Preference amounted to reservation, Mr. Nadkarni, the learned Advocate General argued that the Rule of Preference is only a part of elimination process which is framed in larger public interest. He also pointed out a passage from Dr. Jagdish Saran’s case (supra) wherein the Supreme Court observed that :–
“……Another consideration which justifies some measure of reservation is the desire of students for institutional continuity in education. Parents, pupils and teachers will usually prefer such continuity and it has its own value.”
48. Mr. Nadkarni argued that the Indian Medical Council is a statutory body at the national level whose functionary obligations include setting up standards as well as Regulation and co-ordination of medical education. He submitted that the Medical Council of India has made Rules which pertain about maintenance of quality and standards of medical education and that M.B.B.S. Degree is not awarded unless mandatory rotatory internship of one year is completed. He submitted that broadly, the Medical Council has laid down the period of rotatory internship as one year and not less than it, that percentage of marks for admission to Postgraduate Degree and Diploma Courses should be 50% and no student who has obtained less than 50% is to be given admission in the Postgraduate Degree or Diploma Courses. He submitted that all these Rules are framed with the sole objective of high standard in the medical education. Once those standards are strictly followed and adhered to, it is within the competence of the State to lay down and formulate additional Rules, provided they do not amount to reservation and are not discriminatory. He pointed out that the petitioner does not want to compete in the All India Quota, and that he does not also want to make an application in the next batch. He also pointed out that the petitioner was offered seats in the Postgraduate Degree and Postgraduate Diploma Courses because, even applying the Rule of Preference, some seats were available, but the petitioner declined to accept them. He pointed out that the petitioner has certainly right to apply and he has certainly right to be considered, but the State has right to carve out preference and this carving out of preference does not mean that the petitioner is totally excluded. He pointed out that the order of preference which is laid down, is totally rational and reasonable. He argued that striking down Rule of preference will have a cascading effect, which will adversely affect other legitimate candidates who have already taken admissions and who are undergoing courses.
49. Mr. Nadkarni relied upon Dr. Pradeep Jain’s case (supra) and pointed out that what the Supreme Court has stated is that the total reservation is bad. He further pointed out that in the present case, there is no total reservation as the petitioner can always been considered by applying the Rule of Preference and that he was in fact considered in the past by applying this very same Rule. He also relied upon Sanjay Ahlawat v. Maharishi Dayanand University, Rohtak and others, 1995(2) Supreme Court Cases 762 and submitted that in this case preference to local candidates and giving weightage of 10 extra marks to graduates from the only existing medical college in the State of Haryana, so as to make their services available in the State in view of dearth of medical facility there, was held by the Supreme Court not to be violative of Article 14 of the Constitution. He also relied upon Anant Madaan v. State of Haryana and others, , wherein the Supreme Court did not frown upon when the reservation had been made on the basis of the candidates having studied for the preceding three years in recognised Schools/Colleges in Haryana, was with respect to 85% of seats, after excluding 15% seats which had to be filled up on an All India basis.
50. Mr. Nadkarni also heavily relied upon the passage quoted in para (14) of the said judgment in Dr. Pradeep Jain’s case (supra). This passage itself was reproduced from D.P. Joshi v. State of Madhya Bharat, 1995(1) S.C.R. 1215, wherein Venkatarama Ayyar, J., speaking on behalf of the majority, observed as follows :
“….. The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provisions for education within the limits of its economy. (Vide Article 41). The State has to contribute for the upkeep and the running of its educational institutions. We are in this petition concerned with a medical college, and it is well-known that it requires considerable finance to maintain such an institution. If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least enure for the benefit of the State ? A concession given to the residents of the State in the matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the college, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in State of Punjab v. Ajaib Singh that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Article 14 must be rejected”.
51. Mr. Nadkarni, vehemently justified the “Preference Rule” and prayed that the petition be dismissed.
52. Mr. M.B. D’Costa, who appeared for respondents No. 3, 4, 5, 6, 14, 16 and 21/students, so also Mr. Sharma who appeared for respondent 4/student reiterated the very same arguments which were advanced by learned Advocate General. In addition Mr. Sharma submitted that in fact the petitioner was not resident for 10 years in the State of Goa and that he has only produced a certificate from the Mamlatdar, which was questionable.
53. Mr. M.B. D’Costa also submitted that the petitioner was a vindicated student who had taken admission for first M.B.B.S. Course by giving donation to some college in Karnataka State and then got himself transferred in Goa Medical College in the Second M.B.B.S. Course. These respondents support the preference Rule and denied that the Rule amounts to reservation. In the alternative, they submitted that these students were the bona fide students who legitimately got admissions for the Postgraduate Degree and Postgraduate Diploma Courses and if the Rule is struck down, then it will have a cascading effect which will upset the entire admission list, causing hardships to them. They prayed that the petition be dismissed.
54. Mrs. Agni, appearing for the Goa University, had nothing much to say. She only submitted that the certificate issued by the Dean, Goa Medical College dated 14-8-1998 was with respect to the satisfactory completion of three months’ internship in the Preventive & Social Medicine of the College and it only mentioned completion of 9 months’ internship at Lokmanya Tilak Municipal Medical College, Bombay. She submitted that this certificate was issued at the request of the petitioner himself and was only for a limited purpose, whereby the petitioner was held to be qualifying for the award of M.B.B.S. Degree of Goa University. As completion of one year internship was part of the M.B.B.S. Degree, no degree could be awarded unless the internship was complete. She, however, submitted that she was adopting the arguments of learned Advocate General as far as the Rules of Eligibility and Preference were concerned.
55. We have heard all the Advocates at length and have gone through the citations relied upon by the respective Advocates. We have also gone through the impugned Rule of Preference. The Preference Rule can be reproduced once again, which is as follows :
“(2) Preference :
While selecting the candidates for admission to Postgraduate Degree Courses, preference in the following order shall be observed:-
(a) Candidates who have graduated from the Goa Medical College and have also satisfactorily completed full internship at the Goa Medical College. If such candidates are not available, then
(b) Candidates who have graduated from the Goa Medical College but have done the internship outside the Goa Medical College. If such candidates are not available, then —
(c) Candidate who have graduated from Colleges other than the Goa Medical College but who have completed the internship in the Goa Medical College. If such, candidates again not available, then
(d) Candidates who have graduated from and who have done their internship in Colleges, other than Goa Medical College.”
It will be thus seen that preference Rule gives only an order of preference.
56. The Eligibility Rule for the candidates applying for the admission, reads as follows :
“(1) Eligibility :
Candidates applying for Admission to the Postgraduate Degree Courses shall :—
(i) possess the M.B.B.S. degree of the Goa University or any other University recognized as equivalent thereto by the Goa University and the Medical Council of India;
(ii) complete compulsory rotatory internship of one year on or before the last date of receipt of application;
(iii) have resided in the State of Goa for a minimum period of ten years preceding the last date of receipt of applications.”
57. Obviously, it is within the competence of the State as the subject ‘Medical Education’ falls in List III, Item 25 of the Constitution of India. The provisions of Entries 63, 64, 65 and 66 of List I of the Constitution are not attracted. As per the Medical Council of India Rules, which is the only body to regulate and maintain high standard and quality of medical education in the Country, has prescribed the minimum qualifications for admissions to Postgraduate Degree and Postgraduate Diploma Courses as 50% marks. It has also held that mandatory rotatory internship, is an integral part of the M.B.B.S. Course. No M.B.B.S. Degree is to be awarded unless a student completes this mandatory rotatory internship of one year. Adhering strictly to these standards and Rules, as far as rest of the domain is concerned, the State can obviously frame the Rules on this remaining domain, provided the Rules are not arbitrary, do not amount to reservation and are not violative of Article 14 of the Constitution of India. It means that if there are some Rules which have got nexus with the object sought to be achieved, then they cannot be branded as “Reservation”. In the present case, the interest which is sought to be achieved is a larger public interest to protect local students including the women students and, therefore, the Rule of Preference cannot be branded as “arbitrary”. It certainly has got a nexus to the object which is sought to be achieved. It also does not amount to total reservation, which is condemned by the Apex Court and which condemnation is reflected in its various judgments. This rule also does not conflict or violate the regulation made by the apex body in the field of medical education, namely the Medical Council of India, which has prescribed minimum qualifying 50% marks for admissions. Of course, there should not be any compromise with merit. Merit and merit alone is relevant. There is no compromise with this proposition. The Preference Rule does not obviate the merit principle, but only prescribes a sort of strainer. In only reflects a process of elimination. It does not amount to total reservation. If that would have been so, the petitioner would not have been offered the seats in the Postgraduate Degree and Diploma Courses, on the three previous occasions. Admittedly, the petitioner was offered seats in Forensic Medicine and Anatomy in the Postgraduate Degree Courses in the year 1998 and 1999, so also in the Postgraduate Diploma Course. It was the petitioner who declined to accept those seats because they were not according to his choice. It was not that there was total blockage or impediment in his admission to Postgraduate Degree and Diploma Courses because of the Preference Rule. The blockage or impediment was created by the petitioner himself because of his adamant attitude of taking admission in a particular faculty only, which was not possible because of his having secured less marks than the other students who had not only secured better marks than him, but who had even completed one year’s mandatory rotatory internship in the same college. The college had adhered to the Supreme Court judgement by reserving exclusively the All India Quota. The petitioner does not want to compete from them. He also does not want to compete in the next batch. What he wants is to upset the present candidates/students who have already taken admissions. If the Rule of Preference is struck down, it certainly will have a cascading effect, which will upset the entire admissions. Even this could have been done if the Preference Rule had proved to be amounting to total reservation. Then perhaps it could have been said that it amounted to total reservation and is violative of Article 14 of the Constitution. However, in view of the above discussion, we are not inclined to hold so.
58. In view of the above discussion, and having gone through the authorities relied upon by the petitioner as well as by the respondents, we hold that Rules III(2)(a), III(1)(b) and III(3) of the Admission to Postgraduate Degree Courses of Goa University at Goa Medical College Rules, 1998 are not violative of Article 14 of the Constitution of India and are valid. We also hold that Rule 3(2) of the Goa (Admission to Postgraduate Diploma Courses of Goa University at Goa Medical College) Rules, 1999 is not violative of Article 14 of the Constitution and is valid. Hence, the following order :
The Writ Petition No. 303/2000 and Writ Petition No. 349/2000 are both hereby dismissed. Rule discharged.
No order as to costs.