Gujarat High Court
Paragbhai Bhimshibhai Luva vs State Of Gujarat & on 21 August, 2017
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/13842/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13842 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PARAGBHAI BHIMSHIBHAI LUVA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RAJENDRA PATEL, ADVOCATE for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, SENIOR ADVOCATE WITH GP WITH
MR.DHARMESH DEVNANI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
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C/SCA/13842/2017 JUDGMENT
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 21/08/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. By way of this petition which is filed under Article 226 of the Constitution of India petitioner has prayed for the following reliefs:
"(A)YOUR LODSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned rule (4)(3)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 and further be pleased to hold and declare that such rule is arbitrary, irrational, unfair and ultra-vires the Constitution of India;
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing that rule (4)(3)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 shall not apply to the candidates like the petitioner who is having domicile of the State of Gujarat.
(C) That your Lordships may kindly be pleased to quash and set aside decision of respondent no.2 appearing by way of Annexure-J to the extent to which petitioner is disqualified to have admission in Professional Undergraduate medical courses and further be pleased to hold that the petitioner is entitled to have Page 2 of 26 HC-NIC Page 2 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT the admission in aforesaid courses.
(D) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to direct the respondents authorities to permit the petitioner to participate in the admission process for the 1st year of the Gujarat Professional Undergraduate Medical Educational Courses;
(E) That Your Lordships may kindly be pleased to pass any such other and/or further orders that may be deemed fit, just and proper, in the facts and circumstances of the present case and in the interest of justice."
2. Heard learned advocate Mr.Patel for the petitioner and learned Government Pleader Ms.Manisha Lavkumar for the respondent no.1.
2.1 Learned advocate for the petitioner submitted that the petitioner is born and brought up at Porbandar, State of Gujarat. He studied in the school situated in the State of Gujarat from standard 1 to standard 10. He cleared his Secondary School Examination in the year 2014 held by The Central Board of Secondary Education (hereinafter referred to as 'the CBSE' for short) from the school situated at Porbandar. As Porbandar is a small developing town having no better facility like getting classes for preparation for medical entrance test for CBSE students, the parents of the petitioner chose to shift the petitioner for further study i.e. Page 3 of 26 HC-NIC Page 3 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT standard 11th and 12th through school situated at Kota, Rajasthan. Accordingly, the petitioner studied at the school situated at Kota and cleared the Senior School Examination in May, 2016. He also appeared in National Eligibility- cum-Entrance Examination (`NEET' for short) held on 1.5.2016. However, the result of the said examination was cancelled due to irregularities committed during the said exam and hence examination was reconducted on 24.7.2016 in which also he appeared. However, as the marks obtained by the petitioner were not sufficient to have admission in undergraduate medical educational courses, the petitioner once again appeared in NEET, 2017.
2.2. Learned advocate Mr.Patel thereafter submitted that as per the advertisement published by the respondents for admission to the medical and paramedical courses for the academic year 2017-18, the petitioner got himself registered on 15.7.2017. It is submitted that on 23.7.2017, the respondent no.2 published list of 159 candidates declaring them disqualified as they have passed HSC examination from the school situated outside State of Gujarat. The name of the petitioner was reflected in the said list. When the petitioner inquired, it is revealed that because of Rule 4(3)(ii) of Gujarat Professional Medical Page 4 of 26 HC-NIC Page 4 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (hereinafter referred to as `Rules of 2017'), the petitioner is declared disqualified as the petitioner has not cleared standard 12 examination from the school situated within the State of Gujarat. It is submitted that the petitioner has therefore filed the present petition challenging the validity of Rule 4(3)(ii) of Rules of 2017.
2.3 Learned advocate Mr.Patel mainly contended that Rule 4(3)(ii) of Rules of 2017 framed by the respondent-State is contrary to the regulations of Medical Council of India (hereinafter referred to as `the MCI' for short) framed under the central legislation. It is submitted that under Section 33 of Indian Medical Council Act of 1956, it is within the power of Medical Council to frame the regulations. Accordingly, the regulations are framed by the MCI. It is contended that Regulation 4 of the said Regulations provides about "Admission to the Medical Course-Eligibility Criteria". However, the said Regulation does not prescribe that to be eligible to have admission in medical educational courses of a particular state, candidate should have cleared Higher Secondary Examination or the Indian School Certificate Examination from the school situated in that State. It is further Page 5 of 26 HC-NIC Page 5 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT contended that the said Regulation framed by MCI is having the force of law and are framed deriving the power from the central legislation. Thus, when the impugned Rule framed by the state legislation provides for grant of admission to the students who have passed 10th and 12th qualifying examination from the Gujarat board or CBSE school or the Indian School Certificate Examination Board located in the state of Gujarat, the same is repugnant to the central legislation. Thus, on this ground, the impugned Rule be quashed and set aside.
2.4 In support of the aforesaid contention, learned advocate Mr.Patel has placed reliance upon the decision rendered by the Full Bench of this Court in the case of Priyanka Verma V/s Vishambhar Nath Verma V/s State of Gujarat and others, reported in 2012(3) GLR 1880. Relying upon the said decision, learned advocate Mr.Patel has submitted that in a similar type of situation, when the Rules framed by the State Government were in conflict with the regulations framed by the Central Council, the same were quashed and set aside by the Full Bench of this Court and therefore this Court may quash and set aside the impugned Rule of 2017.
2.5 Learned advocate Mr.Patel at this stage
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contended that though in subsequent decision
rendered by the Division Bench of this Court in the case of Vishakha D/o Mahendra Patel V/s State of Gujarat, reported in 2013(1) GLR 11, the Division Bench has considered the aforesaid decision rendered by the Full Bench, there is no detailed discussion in the said decision rendered by the Division Bench in the case of Vishaka (supra).
2.6 Learned advocate Mr.Patel appearing for the petitioner thereafter submitted that in the State of Gujarat, The Gujarat Secondary Education Regulations, 1974 are in force which are duly framed under Section 53 of the Secondary and Higher Secondary Education Act of 1972. Learned advocate has placed reliance upon Regulation 14(A) of the said Regulations which provides that if the candidate has completed the age of 18 years, then such private candidate will have to be permitted to sit in school exam of any standard, by the Registered Higher Standard School on payment of one month fees prescribed for concerned standard. Relying upon the said provision, it is submitted that in view of the said provision, any person not having domicile of the state of Gujarat can appear directly in standard 10 examination through school situated in the state of Gujarat and equally he can appear Page 7 of 26 HC-NIC Page 7 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT in standard 12 examination also, irrespective whether he has cleared the examination of standard 11 through the school situated in the state or not. Ultimately, such candidate can claim admission in medical educational courses, by fulfilling other norms like passing NEET exam etc. However, if a student like the petitioner, though is domicile of state of Gujarat, he has passed 12th standard examination from the school situated outside the state of Gujarat, he is not eligible because of the impugned Rule. It is, therefore, submitted that the impugned Rule is arbitrary, discriminative and therefore violative of Articles 14, 19(1)(d),(e),(g) and 21 of Constitution of India.
2.7 Learned advocate Mr.Patel lastly contended that in the states of Madhya Pradesh, Rajasthan and Uttar Pradesh, the admissions to the medical and paramedical courses are granted if the student is domicile of that State irrespective of the fact that he has passed standard 12th qualifying examination from the school situated outside that particular state. Learned advocate has produced a copy of such Rules on record and placed reliance upon the said Rules.
2.8 Learned advocate has therefore requested
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that the impugned Rule be quashed and set aside as well as the decision given by the respondent- authority disqualifying the petitioner from participating in the admission process of professional undergraduate medical courses be quashed and set aside and appropriate direction be issued to the respondents to permit the petitioner to participate in the admission process in the aforesaid courses for the academic year 2017-18.
3. On the other hand, learned GP Ms.Shah submitted that the Division Bench of this Court upheld the validity of the similar Rules when the validity of the said Rules were challenged. Similarly, recently a Division Bench of this Court also upheld the validity of the impugned Rule and therefore the issue involved in the present petition is no more res integra. At this stage, learned GP has placed reliance upon the decision rendered by the Division bench of this Court in the case of Vishakha (supra) and Sheetal Yeshwantkumar Parmar V/s State of Gujarat reported in 2013(3) GLR 2643 and the recent decision rendered by the Division Bench of this Court in the case of Kushal Ravindrakumar Pandey V/s State of Gujarat decided on 4.8.2017 in Special Civil Application No.13877 of 2017 and connected matter. Learned Government Pleader has Page 9 of 26 HC-NIC Page 9 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT also placed reliance upon the decision of the Hon'ble Supreme Court in the case of Pradeep Jain V/s Union of India reported in 1984(3) SCC 654 and Dinesh Kumar (II) v/s Motilal Nehru Medical College, reported in 1986(3) SCC 727.
3.1 Learned Government Pleader therefore submitted that in view of the aforesaid decisions rendered by the Hon'ble Supreme Court as well as the Division Bench of this Court, it cannot be said that the impugned Rule is violative of Articles 14, 19(1)(d),(e),(g)and 21 of the Constitution of India as alleged by the petitioner. She, therefore, prayed that the petition may therefore be dismissed.
4. Having heard learned counsel appearing for the parties and having gone through the material produced on record, it has emerged that in exercise of powers conferred by sub-section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act of 2007, the respondent- State has issued notification dated 23.6.2017 whereby the Rules of 2017 are framed. Rule 4(3) of the said Rules provides as under:
"4. Eligibility for Admission,-
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A candidate who desires admission shall-
(1) xxxxx (2) xxxx (3) have passed the 10th and 12th qualifying examination with "B-group" or "AB-group"
from-
(i) the Gujarat Board; or
(ii) the Central Board of Secondary Education provided that the school in which the candidate has studied, is located in the State of Gujarat; or
(iii) The Council of Indian School Certificate Examinations Board, New Delhi provided that the school in which the candidate has studied, is located in the State of Gujarat:
Provided that a candidate seeking admission on Non-Resident Indian seat must have passed the qualifying examination from anywhere with Physics, Chemistry and Biology."
5. It is revealed from the record that the petitioner has passed standard 11th and 12th qualifying examination from the school situated at Kota, Rajasthan. The main grievance of the petitioner is that though the petitioner is domicile of State of Gujarat, merely because the school in which he has studied is situated outside the territorial limits of the state of Gujarat, the admission is denied to him because of the impugned Rule. The petitioner has placed reliance upon the decision rendered by the Full Bench of this Court in the case of Priyanka Verma (supra). It is required to be noted that the Page 11 of 26 HC-NIC Page 11 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT issue involved in the case of Priyanka Verma (supra) was with regard to the admission to two years PTC course in the institution situated in the state of Gujarat. The petitioner was a resident of State of Uttar Pradesh having secured 54% marks in her 10+12 examination and applied for the said course. The Full Bench, after considering the regulations framed by NCTE and Rules under challenge framed by the state Government, observed in paragraph 48 as under:
"48. We are also of the considered opinion that the answer to the third question is that in the field of higher education, the eligibility criteria for admission to PTC course had been laid down by the NCTE under its Regulations 2009 and norms and standards. The guidelines issued by NCTE for admission to PTC or equivalent course would be binding on the State Government and the State Government cannot act contrary to the decision taken by NCTE. The State Government had no power after the enforcement of the 1993 Act to decide or lay down the eligibility criteria for admission to PTC course or to take any policy decision or give effect to the provisions of Act 1984 or Rules 1984 as amended or issue instructions which are in direct conflict with the 1993 Act. The decision taken by the State Government to admit only those students in PTC course who had passed 10+2 examination from schools situated within the State of Gujarat excluding students from outside States is contrary to the 1993 Act and Regulation 2009. It amounts to granting 100% or wholesale reservation to local students, who had passed qualifying examination from Gujarat, which is impermissible and is declared to be void and Page 12 of 26 HC-NIC Page 12 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT unconstitutional and is struck down for being unreasonable, arbitrary and violative of Article 14 of the Constitution of India."
6. Thus, from the aforesaid observation made by the Full Bench of this Court, it is revealed that the decision taken by the State Government to admit only those students in PTC courses who had passed 10+12 examination from the school situated in the state of Gujarat excluding the students from outside the state was contrary to 1993 Act and the Regulations of 2009 framed thereunder and it was also held that it amounts to granting 100% or wholesale reservation to local students who have passed the qualifying examination from the state of Gujarat. Thus, it was declared void and unconstitutional.
7. At this stage, it is required to be noted that the Division Bench of this Court in the case of Vishakha (supra) has considered the decision rendered by the Full Bench in the case of Priyanka Verma (supra) and recorded similar type of contention which was raised in the present petition and thereafter observed in paragraphs 8.1, 9, 10, 11, 15, 16 and 16.2 as under:
"8.1 It will be also necessary to refer to the provisions contained in regulation No.4 Page 13 of 26 HC-NIC Page 13 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT of the Regulations framed by the Medical Council of India, which, according to the learned counsel appearing for the appellants, is in conflict with the Gujarat Rules.
"4. Admission to the Medical Course - Eligibility Criteria:
No candidates shall be allowed to be admitted to the Medical Curriculum of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until:
1. He/She shall complete the age of 17 years on or before 31st December, of the year admission to the MBBS Course (Substituted vide notification dated 29.05.1999).
2. He/She has passed qualifying examination as under:-
1. The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of physics, Chemistry, Biology and Mathematics or any other elective subjects with English at a level not less than core course of English as prescribed by the National Council of Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education.
Note: Where the course content is not as prescribed for 10+2 education structure of the National Committee, the candidates will have to undergo a period of one year preprofessional Page 14 of 26 HC-NIC Page 14 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT training before admission to the Medical colleges;
Or
2. The intermediate examination in science of an Indian University/Board or other recognised examining body with Physics, Chemistry and Biology which shall include a practical test in these subjects and also English as a compulsory subject.
OR
3. The pre-professional/pre-medical examination with Physics, Chemistry and Biology, after passing either the higher secondary school examination, or the pre-university or an equivalent Examination. The pre-professional/pre-medical examination shall include a practical test in Physics, Chemistry and Biology and also English as a compulsory subject.
OR
4. The first year of the three years degree course of a recognized university, with Physics, Chemistry and Biology including a practical test in three subjects provided the examination is a "University Examination" and candidate has passed 10+2 with English at a level not less than a core course.
OR
5. B. Sc. Examination of an Indian University, provided that he/she has passed the B. Sc. Examination with not less than two of the following subjects Physics, Chemistry and Biology [Botany, Zoology) and further that he/she has passed the earlier qualifying examination with the following subjects- Physics, Chemistry and Biology and English Page 15 of 26 HC-NIC Page 15 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT OR
6. Any other examination which, in scope and standard is found to be equivalent to the intermediate science examination of an Indian University/Board, taking Physics, Chemistry and Biology including practical test in each of these subjects and English.
Note.
· The pre-medical course may be conducted either at Medical College, or a science College.
· Marks obtained in Mathematics are not to be considered for admission to MBBS Course. · After the 10+2 course is introduced, the integrated courses should be abolished. Selection of Students:
The selection of students to medical college shall be based solely on merits of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country.
1. In States, having only one Medical College and one university board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration;
2. In states, having more than one university/board, examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies.
3. Where there are more than one college in a Page 16 of 26 HC-NIC Page 16 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT State and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges;
4. A competitive entrance examination is absolutely necessary in the cases of Institution of All India character.
9. After hearing the learned Counsel for the parties and after going through the various authorities placed before us, we find that so far as the reservation by the State in the Medical Colleges is concerned, the Supreme Court, in the case of Pradeep Jain v.
Union of India,1984 (3) SCC 654 initially laid down as a proposition of law that reservation of seats for residents of the State or students of the same University would depend upon the extent or limit of such reservation. In the said decision, the Supreme Court laid down that maximum limit of reservation for M.B.B.S./B.D.S. course should be fixed at 70% which issubject to three- yearly review by Indian Medical Council and Indian Dental Council for deciding reduction in that limit. However, the said decision was reviewed by the Supreme Court on the application of the Union of India and it appears from the decision of the Supreme Court in the case of Dinesh Kumar (II) v. Motilal Nehru Medical College, 1986 (3) SCC 727 that not less than 15 per cent of the total number of seats in each Medical College or Institution, without taking into account any reservations validly made, shall be filled on the basis of All India Entrance Examination. According to the Supreme Court, this new formula was fair and just and brought without placing the students in one State in an advantageous or disadvantageous position as compared to the students in another State. In the penultimate Paragraph of the said judgment, the Supreme Court Page 17 of 26 HC-NIC Page 17 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT further made it clear that the said judgment should not be construed as in any manner prejudicing or affecting or detracting from any rule, regulation or other provision entitling students from other States including the States of Andhra Pradesh and Jammu Kashmir to be considered for admission to the remaining 85 per cent seats for the M.B.B.S./B.D.S. Course. The Supreme Court also directed the Government of India to consider whether it would not be desirable to set up Regional Institutes of Medical Sciences where admission would be open to students from all over the country and where a high standard of excellence would be maintained. According to the Supreme Court, if such Regional Institutes of Medical Sciences are set up providing opportunity to students from all over the country to compete foradmission on the basis of merit, it may become unnecessary to reserve 15 per cent of the total number of seats for admission to the M.B.B.S./B.D.S. Course in each Medical College or Institute on the basis of All India Entrance Examination.
10. Thus, so far as the admission in M.B.B.S./B.D.S. Courses are concerned, the law as it stands as settled by the Supreme Court is that the State Government is given right to reserve 85% seats based on merits restricting it only to the students who have passed 12th Standard examination from any Institute situated within the State.
11. In the cases before us, we find that by the Gujarat Rules, the aforesaid direction given by the Supreme Court has been maintained. We, thus, find that the reservation of remaining 85% seats restricting to only students who have passed the 12th Standard examination from the Institutes situated within the State of Gujarat cannot be held to be invalid.
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15. Lastly, as regards the decision of the Full Bench in the case of Priyanka Verma V.State of Gujarat, 2012(3) GLH 517 (FB) :
[2012(3) GLR 1880 (FB)] we find that in the said case there was total exclusion of candidates who, inspite of having requisite qualification were excluded from its consideration simply because they have passed from an Institution located outside the State of Gujarat. In such circumstances, the Full Bench was of the view that the same was invalid on the ground that the field of legislation was fully and completely occupied by the National Council for Teacher Education Act, 1993 which was enacted by the Parliament and covered by Entry 66 of List I of Schedule VII of the Constitution whereas the Gujarat Educational Institutions (Regulation) Act, 1984 and the Rules framed thereunder were subject to the provisions of the National Council for Teacher Education Act, 1993 and thus, was unenforceable in view of the provisions contained in Article 254(1) of the Constitution of India.
16. In the case before us, we have already pointed out that the Supreme Court has made the law clear by permitting reservation to 85% only, and such direction has not been violated by the Gujarat Rules. Although Mr. Oza and Mr. Pahwa, the learned counsel appearing on behalf of the two appellants, tried to convince us that in view of the decision in the case of PRIYANKA VERMA [supra], we should hold that the Gujarat Rules are in conflict with the Regulations framed by the Medical Council of India under provisions of section 33 of the Indian Medical Council Act, 1956, such submission is not tenable in view of the aforesaid two decisions of the Supreme Court laying down the law on the question involved before us.
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It is now well settled that a decision is an authority in the facts of a particular case and even a minute variation in the facts of another case may make the said decision inapplicable to the other case. In this regard, the observations of the Supreme Court in paragraph 12 of the judgment in the case of STATE OF ORISSA vs. MD. ILLIYAS reported in (2006) 1 SCC 275 would be relevant, which reads thus:
"Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basis postulates-
(i). findings of material facts, direct and inferential. An inferential find of facts is the inference which the Judge draws from the direct, or perceptible facts.
(ii). statements of the principles of law applicable to the legal problems disclosed by the facts, and
(iii). judgment based on the combined effect of the above. A decision is an authority for what is actually decides.
16.2 Thus, the reliance placed by the learned counsel for the appellants on the decision of the Full Bench in the case of Priyanka Verma [supra] is of no avail to them. Moreover, the Regulations Page 20 of 26 HC-NIC Page 20 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT under the Indian Medical Council Act merely prescribe the eligibility criteria and the mode of selection of students based on merit but the same has no role to play in the matter of reservation. Thus, there is no conflict of the Regulation with the Gujarat Rules regarding the eligibility criteria and the mode of selection for admission in the MBBS course."
8. Thus, the Division Bench of this Court in the case of Vishaka (supra) has considered Regulation 4 framed by MCI and also considered the decision rendered by the Hon'ble Supreme Court in the case of Pradeep Jain (supra) and Dinesh Kumar (supra) and thereafter observed that the reliance placed by learned counsel for the appellant on the decision of full Bench in the case of Priyanka Verma (supra) is of no avail to them. It was further observed that Regulations under MCI Act merely prescribe the eligibility criteria and the mode of selection of students based on merit but the same has no role to play in the matter of reservation. Thus, there is no conflict of the regulation with the Gujarat Rules regarding the eligibility criteria and the mode of selection in MBBS course. At this stage, it is required to be noted that learned advocate Mr.Patel appearing for the petitioner in the present case has failed to point out that the decision rendered by the Division Bench of this Court in the case of Vishakha (supra) is reversed Page 21 of 26 HC-NIC Page 21 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT by the Hon'ble Supreme Court. Thus, the aforesaid decision has attained finality.
9. Recently, in a similar case, where a students who is domicile of state of Gujarat has passed standard 12th qualifying examination from Union Territory of Daman, challenged the impugned Rule framed by the respondent-State by filing Special Civil Application No.13877 of 2017. The Division Bench of this Court by an order dated 4.8.2017 dismissed the said petition and upheld the validity of the impugned Rule 4(3)(ii) of Rules of 2017. The Division Bench of this Court in the aforesaid decision has once again placed reliance upon the decision rendered by the earlier Division Bench of this Court in the case of Vishakha D/o Mahendra Patel(supra), Sheetal Yeshwantkumar Parmar(supra), the decision rendered by the Hon'ble Supreme Court in the case of Pradeep Jain (supra) and observed in paragraphs 12, 13 and 17 as under:
"12. Thus, from the aforesaid decisions rendered by the Division Bench of this Court, it is revealed that the concerned petitioner studied in 12th standard in a CBSE school situated outside the state of Gujarat i.e. from Delhi or Assam, as the case may be. The Division Bench of this Court, upheld the validity of the similar Rules when the validity of the said Rules was challenged. Thus, in our opinion, the issue as regards the constitutional validity of the impugned Page 22 of 26 HC-NIC Page 22 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT Rules stands concluded by decisions of the Division Bench in the case of Vishakha D/o Mahendra Patel (supra) and Sheetal Yeshwantkumar Parmar (supra) and we propose to follow the said decisions in the present case also. It is also required to be noted that since 2010 onwards, similar Rules are being framed by the State Government.
13. It is revealed that the respondent-State wants to give benefit of state quota seats to all the schools situated in the state of Gujarat as well as to the students who have studied in state Board. Thus, when the students who have studied from the schools affiliated to the state Board and those situated out of the state of Gujarat are given the benefit of state quota seats in medical and para-medical courses whereas the students who have studied standard 10th and 12th qualifying examination other than the school which are not affiliated with the state Board and are situated outside the territorial limits of the state of Gujarat are denied such benefit. We are of the view that by doing so, the State has not made any discrimination as alleged by the petitioners. It is required to be noted that the petitioners can get admission in 15% seats of All India quota and therefore they cannot insist that they should be accommodated in the state quota only by the respondents.
17. In view of the aforesaid discussion, we are of the view that the impugned Rule of Rules of 2017 is not ultra vires as contended by the petitioners and therefore the petitioners are not entitled to claim the reliefs as prayed for in the petitions. Hence, both these petitions are dismissed."Page 23 of 26
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10. Reliance placed by learned advocate Mr.Patel appearing for the petitioner on the Rules framed by the State of Madhya Pradesh, State of Rajasthan and State of Uttar Pradesh prescribing eligibility criteria for giving admission to medical and paramedical courses is misconceived. It is required to be noted that different states have framed different Rules for grant of admission to medical and paramedical courses. In the present case, when the respondent-State has provided in the impugned Rules that the students who have passed standard 12 qualifying examination from Gujarat Board or from the school situated within the state of Gujarat are eligible to get admission, it cannot be said that such Rule is repugnant to the regulation framed by the central legislation. Even otherwise, when the impugned Rule framed by the respondents is not in conflict with the Regulation framed by the central legislation, we are of the view that the Rules framed by the other states upon which the reliance is placed by learned advocate for the petitioner will not render any assistance to him.
11. Similarly, reliance placed by learned advocate for the petitioner on Regulation 14(A) of the Regulations of 1974 is misconceived. In fact, as provided in the said Regulation, if the Page 24 of 26 HC-NIC Page 24 of 26 Created On Tue Aug 22 02:57:03 IST 2017 C/SCA/13842/2017 JUDGMENT candidate has completed age of 18 years and if he wants to sit in 10th or 12th standard examination from the school situated in the state of Gujarat, such candidate can be permitted to appear in the said examination. However, if such candidate has passed the qualifying examination of standard 12 from the school situated within the state of Gujarat, he will be eligible for admission in medical courses as per the impugned Rule. Thus, in the impugned Rule, emphasis is given that candidate who desires to get admission into medical or paramedical courses has to clear standard 12 qualifying examination from the Gujarat State Board or from the school situated within the state of Gujarat. Thus, Regulation 14(A) of Regulations of 1974 will not be helpful to the petitioner.
12. In view of the discussion made hereinabove, when the validity of the impugned Rule is upheld by the Division Bench of this Court in the order dated 4.8.2017 passed in Special Civil Application No.13877 of 2017 in the case of Kushal Ravindrakumar Pandey (supra), the present petition deserved to be dismissed. Accordingly, the same is dismissed.
(R. SUBHASH REDDY, CJ)
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C/SCA/13842/2017 JUDGMENT
(VIPUL M. PANCHOLI, J.)
Srilatha
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