Bombay High Court
Rajiv Purshottam Wadhwa vs State Of Maharashtra, Through Its ... on 17 June, 2000
Equivalent citations: (2001)1BOMLR1
Bench: A.P. Shah, D.Y. Chandrachud
JUDGMENT
Dr. Chandrachud, J.
Rule, returnable forthwith. Respondents waive service. By consent taken up for final hearing.
A CONSPECTUS OF THE CASE.
1. By this Writ Petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the constitutional validity of Rule 4.4 of the rules framed by the Maharashtra University of Health Sciences governing admissions to courses in Health Sciences in the State. Rule 4.4, which is the subject-matter of controversy provides that a candidate seeking admission to courses in Health Sciences for academic year 2000-2001 would be eligible for admission only if he or she has passed the S.S.C. Examination from an institution situated in the State of Maharashtra. Rule 4.5 similarly requires as a condition of eligibility that every candidate must have passed the Higher Secondary Certificate or equivalent examination from an institution situated in the State of Maharashtra. The petitioner, seeks to impugn the validity of Rule 4.4. and it is with this challenge that the petition is concerned. At the outset, it must be clarified that Rule 4.5 which requires the passing of the H.S.C. examination or an equivalent examination is not under consideration. The H.S.C. examination is the qualifying examination for admission to medical courses and the passing of that examination from the State of Maharashtra is thus a valid requirement of eligibility.
2. Briefly put, the case of the petitioner is thus :
The father as well as the mother of the petitioner were born in Maharashtra. After completing S.S.C in 1983 from the Pune Board the Petitioner's father joined the Defence Services as a Radar Operator in the Indian Air Force. The petitioner's father served in the Air Force unit 26th June, 1979 when he retired. Upon retirement from the Air Force the petitioner's father took up employment at the Airport at Dubai. The petitioner was born on 26th September, 1982 and completed his education until 10th Standard in Dubai. In March, 1998 the Petitioner passed the 10th Standard Examination held in Dubai and conducted by the Central Board of Secondary Education. New Delhi. The petitioner sought and obtained admission to the 11th Standard Course at Kirti College, Dadar. Mumbai. The petitioner passed the 11th Standard in May, 1999 after which he was admitted to the Higher Secondary course in the 12th Standard.
THE RULES FOR ADMISSION
3. For the years 1995-96 and 1996-97 the following Rules had been framed by the State Government for admission to Medical Courses.
1995-96 "3.3.1 H.S.C. OR EQUIVALENT EXAMINATION.
An applicant must have passed Higher Secondary Certificate (12th Standard Science) examination of the Maharashtra State Board or Secondary and Higher Secondary Education or the Indian School Certificate Examination (12th Std. Science) or any other equivalent examination from an institution situated in the Stale of Maharashtra.
3.3.2. S.S.C. OR EQUIVALENT EXAMINATION.
In addition to the qualification mentioned above, only those applicants will be held eligible for selection to the Medical and Dental Colleges, who have passed the S.S.C. or Senior Cambridge or Indian School Certificate or equivalent examination from any of the recognised schools in the State of Maharashtra.
3.3.3.2. The applicants who have passed S.S.C. (or equivalent) and/or H.S.C. (or equivalent) examination from an institution situated outside Maharashtra and whose parents are domicile of Maharashtra State will be eligible for admission in relaxation of para 3:3.3. and/or 3.3.2.
Rules for the year 1996-97 3.3.1. H.S.C. or EQUIVALENT EXAMINATION An applicant must have passed Higher Secondary Certificate (12th Standard Science) Examination of the Maharashtra State Board of Secondary and Higher Secondary Education or the Indian School Certificate Examination (12th Std. Science) or any other equivalent examination from an institution situated in the State of Maharashtra.
3.3.2. S.S.C. OR EQUIVALENT EXAMINATION In addition to the qualification mentioned above, only those applicants will be held eligible for selection to the Medical, Dental, Ayurvedic and Homeopathic colleges, who have passed the S.S.C. or Senior Cambridge or Indian School Certificate or equivalent from any of the recognised schools in the State of Maharashtra.
3.3. 3.2. The applicants who have passed S.S.C. (or equivalent) and/or H.S.C. (or equivalent) examination from an institution situated outside Maharashtra but within the territory of India and whose parents are domicile of Maharashtra State will be eligible for admission in relaxation of para 3.3.3 and/or 3.3.2.
4. From the aforesaid rules it is clear that both during the academic years 1995-96 and 1996-97 an applicant desirous of seeking admission to a medical or dental course had to pass the S.S.C. Examination as well as the H.S.C. Examination from an institution or school situated in the State of Maharashtra. An exception was however made in the case of students whose parents were domiciled in the State of Maharashtra. In their case, the Rules for 1995-96 provided that such students would be eligible for admission in relaxation of the conditions requiring the passing of the S.S.C. as well as H.S.C. Examinations from Institutions situated in the State of Maharashtra. The exemption contemplated by the Rules of 1995-96 in respect of students whose parents were domiciled in the State of Maharashtra was continued for the years 1996-97. Subject to the further condition that the institution from which the student had passed the S.S.C. and/or the H.S.C. Examination should be situated within the territory of India. Be that as it may, the essential point to be noted at the present stage is that during the period 1995-97 the Rules for admission framed by the State Government contemplated that even if a student had not passed the 10th Standard or 12th Standard Examinations from an institution situated within the State, the requirement of attending an institution within the State would be relaxed in the case of students whose parents were domiciled in the State of Maharashtra. For the year 1997-98, it appears that the Rules were modified and the passing of the examination from an Institution within the State of Maharashtra was imposed as a condition of eligibility even for students whose parents were domiciled in the State of Maharashtra. The petitioner has averred in paragraph 6 of the petition that the Rules for 1997-98 were notified sometime in July/August, 1997. The petitioner has averred in paragraph 7 of the petition that by the time the Rules for admission for the year 1997-98 were notified in July, 1997 he had already been admitted to the 10th Standard in Dubai.
5. From the academic year 1999-2000 admissions to Medical Courses in the State of Maharashtra have been regulated by conducting a common entrance test. The Maharashtra University of Health Sciences has similarly, for the academic year 2000-2001, notified Rules for admission which inter alia provided for conducting a common entrance test. The Rules for admission enunciate conditions of eligibility for admission to courses of Health Sciences and as stated earlier Rules 4.4. and 4.5. require that every candidate in order to satisfy the condition of eligibility ought to have passed S.S.C. and H.S.C. Examination or examinations equivalent thereto from an institution situated in the State of Maharashtra.
6. Rules 4.4. and 4.5 provide as follows :-
"4.4. The candidate must have passed the S.S.C. or equivalent examination from an institution situated in the State of Maharashtra.
4.5. A candidate must have passed Higher Secondary Certificate or equivalent examination, from an institution situated in the State of Maharashtra with English, Physics. Chemistry and Biology (Botany and Zoology) at the time of admission."
7. Since one of the submissions of the petitioner relates to exemptions granted to children of employees serving the State and the Central Governments, it would be convenient to refer to Rules 4.8 and 4.9 of the Rules for admission. Rules 4.8 and 4.9 provide as follows : -
"4.8 GOVERNMENT SERVANTS OF MAHARASHTRA STATE or its undertaking who are transferred back to Maharashtra or has returned to Maharashtra from deputation to Central Government/Government of India Undertaking and joined before the last date of submission of application may apply for appearing at MH-CET-2000 and admission to those courses to the Designated Authority of the concerned Regional area where the parent is now posted, on return, even if the candidate has passed S.S.C. (or equivalent) and/or H.S.C. [or equivalent) examination from an institution situated out side Maharashtra subject to fulfillment of other eligibility criteria. However if such a Government servant is transferred to Maharashtra State within three years from the last date of application. Such candidate must produce a certificate from the Head of the Office where candidate's parent is working after transfer to Maharashtra State. The certificate should contain full name of employee, designation, transfer order number and date of joining.
4.8.1 Sons and daughters of Government servants of Maharashtra State or its undertaking on deputation to Central Government/Government of India Undertaking and sons and daughters of Maharashtra Government servants posted outside the State on a post of Government of Maharashtra or undertaking shall be eligible for appearing in MH-CET-2000, even if they have passed their S.S.C. and or H.S.C from an institution outside Maharashtra State, such candidate must have completed at least five years of their education between 1st Standard to the standard of qualifying examination i.e. H.S.C. or equivalent from an institution situated in the State of Maharashtra. School Leaving Certificate from the authorities of the institutions/schools will constitute valid proof for the same. All such candidates should apply for MH-CET-2000 to the Designated Authority at Mumbai.
4.9 Central Government Servants : Sons and daughters of Central Government Servants or servants of Government of India Undertaking who have been transferred to Maharashtra State shall be eligible for admission, even if he/she has passed S.S.C. or equivalent examination from a recognised institution situated outside Maharashtra State. However, the candidate must produce a certificate from the Head of the office where candidate's parents are working. The certificate should contain full name of employee, designation, transfer order number and date: date of joining and present status of posting. A copy of transfer order should be attached with the application.
8. The petitioner has set out in the petition that some time in February, 2000 he sought to submit his application for admission to the M.B.B.S. Degree Course to the Dean of the Grant Medical College. The application was not accepted in view of the provisions contained in Rule 4.4. of the Rules for admission. Aggrieved by the refusal of the Respondents to accept his application, the petitioner has moved the present petition. By an ad interim order dated 4th April, 2000 passed by us at the stage of admission, the petitioner was permitted to appear for the centralised common entrance test which was to be conducted on 16th April, 2000. It was made clear that this order would be subject to the final result of the writ petition.
THE SCOPE OF THE CHALLENGE
9. In assailing the constitutional validity of the provisions contained in Rule 4.4 of the Admission Rules, several grounds have been urged in support of the petition. The submissions of the petitioner are as follows :
(i) Rule 4.4., it is submitted is arbitrary and bears no nexus to the objective sought to be achieved of admitting the best available talent among students to the M.B.B.S. Course. According to the petitioner, admissions to the M.B.B.S. Course are now governed by the common entrance examination and the petitioner has in any event to pass the H.S.C. Examination for the 12th Standard from the State of Maharashtra. The submission is that the marks obtained at the S.S.C. Examination for the 10th standard are of no consequence in determining merit for the purpose of admission to the M.B.B.S. Course and Rule 4.4. must consequently be declared to be arbitrary and unreasonable.
(ii) The petitioner submits that Rule 4.4. of the Rules for admission unfairly discriminates between students whose parents are employed by the State of Maharashtra and those whose parents are in private employment. Treating students differently on the basis of the employment of their parents, according to the petitioner, is violative of the right to equality under Article 14 of the Constitution of India. The submission of the petitioner is that the exemption granted to students, whose parents are domiciled in the State of Maharashtra cannot be confined only to those whose parents are employed by the State Government.
(iii) The petitioner submits that the Rule regarding the passing of the S.S.C. and H.S.C. Examinations from the State of Maharashtra is in the nature of a requirement of domicile. If a student such as the petitioner fulfills the requirement of domicile within the State of Maharashtra, the Rules of admission should not debar a candidate merely because he/she has not passed the S.S.C. Examination from an institution situated within the State.
(iv) Rule 4.4. is sought to be impugned on the ground of promissory estoppel and on the ground that it violates the legitimate expectations of the petitioner. The petitioner contends that the Rules for Admission were notified in July, 1997 so as to introduce the requirement of passing the S.S.C. Examination from the State of Maharashtra as a mandatory condition. The petitioner contends that at that time, that is in July, 1997, he had already been admitted to the 10th Standard course in Dubai. According to the petitioner, if the new condition imposed in July, 1997 had been made earlier candidates like him would have sought admission to an institution within the State of Maharashtra for pursuing the 10th Standard.
10. In considering the tenability of the submissions urged on behalf of the petitioner, it would be apposite to note that in 1986, a Bench of the Supreme Court consisting of Hon'ble Mr. Justice D. P. Madon and Hon'ble Mr. Justice G. L. Oza, dealt with a Rule for admission to medical courses in the State of Maharashtra for academic year 1985-86 which provided that only those candidates would be eligible for admission to Medical Colleges who had passed the S.S.C. or any equivalent examination from any of the recognised Institutions in the State of Maharashtra. The High Court dismissed a challenge to the validity of the Rule preferred before it by a student whose father was working in the service of the Central Government in the Geological Survey of India. During the pendency of the appeal before the Supreme Court, the petitioner was granted admission and an affidavit to that effect was filed before the Supreme Court. In that view of the matter the Supreme Court while rendering its judgment in the case of Kumari Suneeta Ramchandra Koyalamudy v. State of Maharashtra and another, held that it was unnecessary for the Court to consider the correctness of the challenge to the Rule which provided, as a condition of eligibility that the candidate must have passed the S.S.C. from a recognised school in the State of Maharashtra. Mr. Justice D. P. Madon, speaking for the Court, however, made the following observations :
"In view of this, it is unnecessary for us to consider the validity of Rule C(5) except to state that we do not agree with the High Court when it has said that there is nothing abhorrent about the requirement contained in the said rule. The question of validity of Rule C(5) requires careful consideration and it cannot be brushed aside in the matter in which the High Court has done."
THE VIEW TAKEN BY THE DIVISION BENCHES OF THIS COURT.
11. Our attention has also been drawn by the learned Counsel appearing on behalf of the parties to three decisions rendered by Division Benches of this Court. The first is the judgment of a Division Bench consisting of A. A. Desai and S. S. Parkar, JJ. in the case of Miss Vaidhehi Subhash Natu v. State of Maharashtra and Ors.,' Before the Division Bench, two submissions were urged for consideration :
(i) That it was only the Medical Council of India which was empowered to frame Rules for admission to Medical Courses and the Rules framed by the Medical Council prescribe as a qualification that the candidate should have passed the H.S.C. Examination. Consequently, it was urged that the Rule requiring the applicant to pass the S.S.C. Examination from the State of Maharashtra is invalid.
(ii) The second ground on which the Rule for admission was impugned was that it unfairly made discrimination between children whose parents were employed in private service, and those whose parents were employed by the Central.
12e. The first submission was turned down by this Court holding that what the Medical Council had prescribed was that candidates should have passed the H.S.C. Examination from within the State, but, this Rule did not debar the Government from providing that apart from the H.S.C, Examination, the S.S.C. Examination should also be passed from any School in the State of Maharashtra. Relying on Judgments of the Supreme Court the Division Bench held that it was open to the State Government to prescribe an institutional preference so long as there was no total reservation on the basis of residence or institutional preference. The second submission was also rejected by the Division Bench on the ground that employee of the State and Central Governments had no choice or option since their services were transferable. This Court took the view that on the other hand, employees engaged by private sector employers had a certain measure of choice in regard to their employment and the distinction made by the Rule could not be therefore categorised as invalid.
13. The second decision of the Division Bench upon which reliance has been placed is the judgment dated 5th April, 1999 in Writ Petition No. 910 of 1999 rendered by a Division Bench of this Court consisting of Hon'ble Mr. Justice N. J. Pandya and Hon'ble Mr. Justice S. S. Parkar, in the case of Vivek Venkatramani v. State of Maharashtra and Ors. The rule in question which was considered by the Division Bench provided that the candidate ought to have passed the S.S.C. or equivalent examination from the State of Maharashtra. Before the Division Bench in the case of Vivek Venkatramani (supra) reliance was sought to be placed on a judgment of the Supreme Court in the case of Deepak Sibal v. Punjab University and Anr. In Deepak Sibal's case the Supreme Court had struck down the validity of a rule which confined admission to evening classes of the Law degree course only to regular employees of Government and Semi Government Undertakings. The Division Bench of this Court after considering the decision of the Supreme Court in Deepak Sibal's case held that the earlier judgment in the case of Vaidehi S. Natu (supra) did not require re-consideration and that the exemption granted from the requirement of passing the S.S.C. Examination from an institution within the State of Maharashtra, to children of State and Central Government Employees did not suffer from any unconstitutional discrimination.
14. Reference may also be made to a decision rendered by the Division Bench of this Court, at the Aurangabad Bench consisting of Hon'ble Mr. Justice V. K. Barde and Hon'ble Mr. Justice S. B. Mhase, in the case of Indun Varun Shankar v. State of Maharashtra and others,. The facts in the case before the Division Bench were that the petitioner had appeared for the 10th Standard Examination from the State of Andhra Pradesh and shifted in the year 1997-98 to the State of Maharashtra for pursuing the 11th and 12th Standard Examinations. The Division Bench of this Court held that when the petitioner took admission in 1997-98 to the 11th Standard in the State of Maharashtra, the exemption granted to students whose parents were domiciled in the State of Maharashtra had been withdrawn. Consequently, it was held that the petitioner was not entitled to any relief and the writ petition was rejected.
THE GENESIS OF THE REQUIREMENT OF RESIDENCE : THE JUDGMENT IN PRADEEP JAIN :
15. In considering the tenability of the submissions which have been urged before us by the learned Counsel for the petitioner it would be necessary to advert to the genesis of the Rules for admission which require candidates to have passed the 10th and 12th Standard Examinations from within the State as a condition of eligibility. In the case of Dr. Pradeep Jain v. Union of India and Ors., the Supreme Court noted that in almost all States and Union Territories, admissions to Medical Colleges were based either on residential requirements or upon institutional preferences. Though the extent of the residence required varied from State to State, every State has prescribed some requirement of residence. The question before the Supreme Court was whether it was constitutionally permissible to the State to prescribe a requirement of residence as a condition of eligibility to secure admission to Medical courses. The Supreme Court held that as a matter of first principle, admissions to medical colleges must be based, generally speaking, on the selection of the most meritorious students. In paragraph 10 of the Supreme Court judgment delivered by Hon'ble Mr. Justice Bhagwati (as he then was) this principle was placed thus : -
"The Philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must therefore always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider is our constitutional set up. Moreover, it would be against national interest to admit in medical colleges or other Institutions giving instructions in specialities, less meritorious students when more meritorious students are available simply because the former are permanent residents or residents for certain number of years in the State while the latter are not though both categories are citizens of India.
Having laid down the principle of merit as the primary guiding principle, the Supreme Court enunciated that while the principle of merit was a requirement of the doctrine of equality of matter of protective discrimination or affirmative action in favour of socially and economically disadvantaged section of the society. The judgment of the Supreme Court in Pradeep Jain's case, broadly speaking, stated two principles or considerations which may justify a departure from the principle of making admissions solely on the basis of merits. The first consideration laid down by the Supreme Court is in respect of "State interest" and the second, described as a region's claim of backwardness. In regard to the first ground of departure from merit, the interest of the State, the Supreme Court relied upon its earlier judgment in the case of D. P. Joshi v. State of Madhya Bharat, The Supreme Court held in that case that since a considerable amount of expenditure is incurred by the State in maintaining Medical Colleges, it is not unreasonable for the State to require that the advantage of the educational system should at least to a certain extent enure for the benefit of the State. A concession in the matter of payment of fees to students residing in the State was held to be justified on the ground that at least some of the students would after passing out of College settle down as doctors and serve the needs of the locality and the State.
16. Similarly a rule of residence for a period of not less than 10 years for admission to Medical Colleges in the State of Mysore was upheld by the Supreme Court in the case of Vasundra v. State of Mysore,. The Supreme Court held in that case that the objective of framing the impugned rule was to attempt to impart medical education to the best talent available out of the class of persons likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. Thus the first principle on the basis of which a departure has been held to be justified from the principle of merit is the interest of the State and in particular the concern of the State in ensuring that medical facilities are made available to the population of the State by imparting education to the residents of the State who would be likely to settle down and provide medical services within the State.
17. The second ground on which a departure from the principle of merit has been held to be justified in Dr. Pradeep Jain's case (supra) is the claim of backwardness made on behalf of any particular region. The Supreme Court upheld this departure on the ground that it was legitimately open to the State to provide equal opportunity to neglected areas of the State by providing for preferences in Medical College admissions.
18. Having thus affirmed two principles for making a departure from the principle of merit in making admissions to Medical Colleges, the Supreme Court held that it would still not be open to the State to make "wholesale reservations" on the basis of domicile, residence and institutional preferences. The Supreme Court held that it was not possible to give a categorical answer as to what would be a permissible reservation on the basis of residence or institution. Such reservation should in any event not exceed the outer limit of 70 percent of the total number of open seats after taking into account the other reservations validly made. In other words at least 30 per cent of the seats shall be available for admission to all students on an all India basis irrespective of the State or University from which they come and such admissions shall be granted purely on merit on the basis of either an All India Entrance Examination or an Entrance Examination to be held by the State. (The figure of 30 percent has subsequently been reduced to 15 per cent by the Supreme Court).
19. Dr. Pradeep Jains' case, therefore, thus emphasises that it would be legitimately open to the State to prescribe the requirement of residence within the State in relation to a certain proportion of seats. The requirements of residence within the State is a means of promoting the interest of the State and of protecting the claims of regions within the State which are considered to be backward. The Supreme Court has further imposed an outer limit on the extent to which reservation on the basis of residence can be prescribed. For the purpose of the present case what is material is that the requirement that students must pass the S.S.C. Examination from the State is to ensure the protection of these interests of the State which found acceptance in Pradeep Jain's case. The requirement that students must pass the 10th Standard Examination as well as the 12th Standard Examination from within the State ensures in some measure that students fulfill sonic requirement of residence which is a legitimate concern of the State. The State Government which establishes Medical Colleges has been permitted by the decision of the Supreme Court to ensure that a certain proportion of seats is reserved for residents within the State. Therefore, the requirement of passing the S.S.C. Examination of the 10th Standard as well as the H.S.C. Examination of the examination of 12th Standard from within the State can well be regarded as a means of adhering to the requirement of residence or domicile. The object is to ensure that the benefit of medical education is made available to students within the State and to Regions within the State which are socially and educationally backward.
THE INTERPRETATION OF RULE 4.4
20. The problems which the present writ petition and the connected writ petitions raise is as to whether the requirement of having passed the 10th examination from within the State can operate to debar a student who even otherwise is domiciled within the State or can be regarded as a permanent resident of the State. In other words, the issue before the Court is whether a candidate who otherwise fulfils the requirement of residence or domicile within the State can be excluded from admission solely on the ground that he or she has not passed the 10th Standard Examination from within the State. The requirement of passing of the H.S.C. or 12th Standard Examination stands on a different footing since that is the qualifying examination for admission to medical courses. We are, therefore, concerned only with Rule 4.4. which requires the passing of the Xth Standard or S.S.C. Examination from an institution within the Slate.
21. In dealing with this question it is necessary to emphasis that the basic principle on the basis of which admissions to Medical Courses have to be made is the principle of merit. A departure from the principle of merit has been held to be justifiable in specific circumstances, which have been adverted to in the judgment of the Supreme Court in Dr. Pradeep Jain's case (supra). The object of Rule 4.4. in the Rules for admission in the present case is to ensure that claims for admission to medical courses within the State by students residing within the State or domiciled within the State should be duly protected. Rule 4.4. undoubtedly constitutes a departure from the principle of merit because it excludes candidates from outside the Slate who may have a higher percentage of marks for seeking admission within the State because they have not passed the 10th Standard Examination from within the State. This departure from merit must be justifiable. As already stated earlier, apart from protective discrimination for the reserved categories, the Supreme Court has laid down two considerations for justifying a departure namely (1) the State interest particularly in ensuring medical facilities to residents of the State: and (2) the claim of Regions within the State which are considered to be backward. Rule 4.4. can be regarded as constitutionally valid if it falls within the parameters of those considerations which have been held by the Supreme Court to justify a departure from merit. The rule or requirement whereby students should have passed the 10th Standard Examination from an institutions within the concerned State is to ensure that students must be resident in or domiciled in the State and that will protect the State's interest in Medical education. The object of Rule 4.4. is to ensure that a certain proportion of seats-85% of the total number of seats will be made available to students from within the State and that such students should fulfill the requirement of residence or domicile. In fact, Rule 5.1 of the Rules in question, expressly provides that 15 per cent of the seats in Government Medical Colleges will be reserved for candidates at the All India Entrance Examination. The balance of the seats are those which are required to be filled in by the State Government from amongst candidates who would meet the requirement of eligibility for admission. The object of Rule 4.4 is therefore not to debar admission to Medical courses but to exclude students who do not fulfill the requirement of domicile or residence from gaining admission to medical courses within the State.
22. In our view, therefore, the Rules for admission which have been framed by the State must suitably interpreted and read down so as to ensure that while Rule 4.4. and rule 4.5 would continue to operate, it should be open to the State Government to consider for admission those students who fulfill the requirements of domicile or residence prescribed by the State Government but who may not have passed the 10th Standard Examination from within the State. The basic object and purpose of Rules 4.4. is to implement the requirement of domicile or residence. That objective is sought to be achieved by not conferring eligibility for admission on students who have not passed the 10th Standard Examination from Institutions within the State. That objective however would be defeated by excluding from the admissions process students who are bona fide residents of the State and are domiciled therein merely on the ground that some of these students may not have passed the 10th Standard Examinations from within the State. The object of the Rule must therefore be preserved by implementing it as it stands, subject to the proviso that it would be open to the State to consider as eligible those students who are bona fide permanent residents of the State of are domiciled there even though in a given case the student may not have passed the 10th Standard Examination from the State. Reading down of Rule 4.4. in this manner is not only desirable in the interests of Justice but is necessary in order to preserve the constitutional validity of Rule 4.4. Otherwise, the Rule may be susceptible to a substantial constitutional challenge on the ground that the prescription of the condition of passing the 10th Standard Examination arbitrarily excludes students who are bona fide permanent residents of or are domiciled in the State, merely by the fortuitous circumstances that the S.S.C. Examination has not been passed from an institution within the State.
23. The principle of reading down the Rule would, in our view, be desirable from another point of view as well. The petitioner has approached this Court for striking down Rule 4.4. The striking down of Rule 4.4. would not readily serve the interests of students resident in the State because the consequence of a striking down of the Rule would be to enable all students who stay wherever within the country from seeking admission to Medical courses within the State. This obviously is a consequence which even the petitioner and the State itself would not countenance.
24. The question as to whether a Rule providing for admissions to Medical Colleges can be read down in such a context has been considered in a recent judgment of the Supreme Court in the case of Ahmedabad Municipal Corporation and Anr. v. Nilaybhai R. Thakore and Anr.,. In the case before the Supreme Court Rules 6 and 7 of the N.H.L. Municipal Medical College Admission Rules, which govern admissions to the Municipal Medical College prevented students who are residents of Ahmedabad city but who have acquired their qualifications for admission from educational institutions situated within the Ahmedabad Urban Development Area from being treated as local students. The High Court of Gujarat struck down the Rule holding that the classification on the basis of students having passed the qualifying examination from institutions within the local limits had no reasonable nexus with the objective sought to be achieved by the Admission Rules for selecting the best candidates for admission to the Medical College. The High Court came to the conclusion that the classification based on attending a college within and outside the Corporation limits was not a reasonable classification for the purpose of admission to the Medical College. Rule 7 of the Rules was in issue before the Supreme Court. The Rule defined the "Local Student" as a student who had passed the S.S.C./new S.S.C. Examination and the qualifying examination from any of the High Schools or Colleges, situated within the Ahmedabad Municipal Corporation Limits. Consequently permanent resident students of Ahmedabad City who had for fortuitous reasons happened to acquire qualifications from educational institutions situated outside the Municipal limits would not be eligible for being treated as local students. The Supreme Court was of the view that the Rule as framed did not meet the requirement of reasonableness and non discriminatory treatment. The Court dealt with the Issued in the following terms :
"The object of the rule is to provide medical education to the students of Ahmedabad who have acquired the necessary qualification, their selection being based on merit. If that be the object, can it be said that a classification based only on the local of the educational institution within or outside the Municipal limits is a reasonable classification? In our opinion, the answer should be in the negative. In the counter-affidavit filed on behalf of the Ahmedabad Municipality in the writ petition, it is stated that the Medical College in question was established to cater to the needs of the students of Ahmedabad city. If that be the object, in our opinion, the same would be defeated by restricting the definition of "local student" to those students who have acquired their qualification from institutions situated within the Ahmedabad municipal area, because as has happened in this case, the actual resident students of the Municipality whose parents would have contributed towards the revenue of the Ahmedabad Municipality who for reasons beyond their control or otherwise, bad acquired their qualification from institutions situated just outside the Ahmedabad municipal area i.e. within AUDA, would be denied the benefit of admission to the college which is run by the Ahmedabad Municipality. In our opinion, confining the definition of "local students" to only those students who acquired the qualification from educational institutions situated within the local area creates an artificial distinction from amongst the students who are residents of Ahmedabad city but who have studied in educational institutions situated outside the Ahmedabad Municipal Corporation limits. We do not find any nexus in this type of classification with the object to be achieved."
25. Having held that Rule 6 suffered from an element of arbitrariness the Supreme Court held that the remedy would not lie in striking down the impugned rules, the existence of which was necessary in the larger interest of the institution as well as of the populace residing within the limits of Ahmedabad Municipal Corporation. The Supreme Court noted that the striking down of the Rule would result in a situation where candidates from all over the country would seek admission to the Municipal Medical College and that this would defeat the purpose of prescribing the requirement of residence. Hon'ble Mr. Justice Santosh Hegde speaking for the Supreme Court held thus :
"The striking down of the rule would mean opening the doors of the institution for admission to all the eligible candidates in the country which would definitely be opposed to the very object of the establishment of the institution by a local body. It is very rarely that a local body considers it as its duty to provide higher and professional education. In this case the Municipality of Ahmedabad should be complimented for providing medical education to its resident students for the last 30 years or more. It has complied with its Constitutional obligation by providing 15% of the seats available to all-India merit students. Its desire to provide as many seats as possible to its students is a natural and genuine desire emanating from its municipal obligations which deserves to be upheld to the extent possible- Therefore, with a view to protect the laudable object of the Municipality, we deem it necessary to give the impugned rule a reasonable and practical interpretation and uphold its validity.'
26. In that view of the matter, the Supreme Court held that since the Rule in question was a place of subordinate legislation and having regard to the fact that by declaring the Rule ultra vires as was done by the High Court considerable damage would result to the cause for which the Municipality had enacted this rule, the Supreme Court has interpreted Rule 7. As interpreted by the Supreme Court, Rule 7 would mean the following:
"Local student means a student who has passed H.S.C. (sic/S.S.C..)/New S.S.C. Examination and the qualifying examination from any of the High Schools or colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of the Ahmedabad Municipality who acquires the above qualifications from any of the high schools or colleges situated within the Ahmedabad Urban Development Area."
As a result of the interpretation of Rule 7 by the Supreme Court the benefit of seeking admission to the Ahmedabad Municipal Medical College in Ahmedabad was extended to (i) students who had passed the S.S.C,/new S.S.C. Examination from High Schools or colleges situated within the limits of the Municipal Corporation and also (ii) permanent resident students of the Municipality who had acquired qualifications from High Schools or colleges situated in the urban development area.
27. The approach adopted by the Supreme Court is one which we would respectfully follow in the facts and circumstances of the present case. As stated by us earlier, the object of providing that a student in order to be eligible ought to have passed the S.S.C. Examination from an institution within the State is to make available the benefit of medical education to permanent residents of the State. That object would be defeated if the Rules were struck down for then, students from all over the country would be entitled to admissions to medical colleges in the State, over and above the 15 per cent quota available on an all India basis. Instead, the alternative approach which according to us will be, in the interests of justice is that rule 4.4. should be interpreted and read to mean that (i) in order to be eligible for admission students must have passed the S.S.C. or an equivalent examination from an Institution within the State of Maharashtra (ii) However, the State Government can consider for the grant of admission to students who are domiciled in or are permanent residents of the State of Maharashtra, but who due to fortuitous circumstances may not have passed the 10th Standard Examination from within the State. We make it clear that it would be entirely a matter for the State Government to determine as to when or on the basis of what considerations a student can be regarded as a permanent resident of the State of Maharashtra. The State Government may frame appropriate guidelines and or Rules and the case of every student who claims to be eligible for admission on the ground that he or she is a permanent resident of the State, though not having passed the 10th Standard Examination from an institution located within the State shall be considered in accordance with the guidelines and/or Rules to be framed by Government.
28. Before concluding, we may briefly deal with two submissions which have been urged by the petitioners. The first of these submissions is that the Rules constitute an unconstitutional discrimination between students whose parents are employed in the service of the Central Government or State Government on one hand and students whose parents are employed in a private establishment on the other hand. Having given our anxious consideration to this submission, we do not find any substance therein. There is a real and an intelligible differentia between employment in the State or Central Government on the one hand and employment in the private sector on the other hand, Employment in Government service, it is well settled, is generally speaking not a matter purely of contract and there is an element of compulsion involved for an employee of the State or Central Government to serve in any part of the country that he may be deputed to serve. That element of compulsion may not wholly be absent in the case of private employment. However there is a distinction between service in the State and private service, and even if it is one of degree it is sufficient in our view to sustain the constitutional validity of the Rule. We are aware of the view which was taken by the two Division Benches of this Court which have upheld the exemption granted to children of employees of the Central Government, State Government and Government Undertakings. We also do not find any substance in the plea of promissory estoppel which it might be fairly stated was only faintly argued before us by the learned Counsel appearing for the petitioner. Students who apply for admission are, subject to observance of constitutional requirements, bound by the Rules of admission and we do not consider that the doctrine of Promissory estoppel would be apposite in this context.
29. In the result, the petition will stand disposed of. We direct that Rule 4.4. of the Rules framed by the Maharshtra University of Health Sciences for admission to Medical Colleges in the State for the year 2000-2001 will be interpreted to mean that students will be eligible for admission to the 1st year Medical Course in the State, if such students have passed the 10th Standard (S.S.C. or Equivalent Examination from within the State) from an institution within the State of Maharashtra. However, this will not operate to bar a student who is domiciled in or is a permanent resident of the State of Maharashtra from seeking admission though he or she may not have passed the S.S.C. Examination from an institution within the State of Maharashtra. We direct that it would be open to the State Government to frame Rules and/or guidelines to determine whether a student in a given case would be considered as being a permanent resident of the State of Maharashtra or domiciled in the State. The case of students who claim to be eligible under the aforesaid guidelines and/or rules framed by the State Government including the petitioner shall be considered by the University by the application of those guidelines or the Rules in the facts and circumstances of each case. We, however, clarify that the observance of Rule 4.5 has to be ensured since the 12th Standard Examination is a qualifying examination for admission. The case of the petitioner shall be processed on the basis of his performance in the common entrance test. The Admission, if any, granted to the petitioner will be provisional subject to his compliance with the requirement of domicile in Maharashtra.
30. The Writ Petition will stand disposed of accordingly. No order as to costs.
The parties and the Authorities to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.