Rajasthan High Court - Jodhpur
Dr. Shilpa Godara & Ors vs State & Ors on 26 August, 2011
Bench: Arun Mishra, Alok Sharma
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
...
1. D.B. CIVIL WRIT PETITION NO.477/2011 Dr.Shilpa Godara & Ors. VS. State of Raj. & Ors.
2. D.B. CIVIL WRIT PETITION NO.154/2011 Dr.Meghna Poonia. VS. State of Raj. & Ors.
3. D.B. CIVIL WRIT PETITION NO.284/2011 Bhagwan Mantri. VS. State of Raj. & Ors.
4. D.B. CIVIL WRIT PETITION NO.285/2011 Patta Ram Choudhary. VS. State of Raj. & Ors.
5. D.B. CIVIL WRIT PETITION NO.292/2011 Vishnu Kumar Borana. VS. Raj. University of H.S. & Anr.
6. D.B. CIVIL WRIT PETITION NO.349/2011 Divya Jain. VS. State of Raj. & Ors.
7. D.B. CIVIL WRIT PETITION NO.355/2011 Dr.Arun Kumar & Ors. VS. State of Raj. & Ors.
8. D.B. CIVIL WRIT PETITION NO.360/2011 Rohit Kumar Labana. VS. Registrar, University of H.S. & Anr.
9. D.B. CIVIL WRIT PETITION NO.412/2011 Monika Jain. VS. State of Raj. & Ors.
10.D.B. CIVIL WRIT PETITION NO.423/2011 Miss Nisha Yadav. VS. State of Raj. & Ors.
11.D.B. CIVIL WRIT PETITION NO.530/2011 Aditya Soni. VS. State of Raj. & Ors.
12.D.B. CIVIL WRIT PETITION NO.593/2011 Navin Mewara. VS. State of Raj. & Ors.
213.D.B. CIVIL WRIT PETITION NO.594/2011 Dr.Shikha Agarwal. VS. State of Raj. & Ors.
14.D.B. CIVIL WRIT PETITION NO.595/2011 Dr.Hina Sharma. VS. State of Raj. & Ors.
15.D.B. CIVIL WRIT PETITION NO.596/2011 Dr.Avinash Jain & Anr. VS. State of Raj. & Ors.
16.D.B. CIVIL WRIT PETITION NO.613/2011 Ruchir Aeron. VS. State of Raj. & Ors.
17.D.B. CIVIL WRIT PETITION NO.614/2011 Shaifali Chahar. VS. State of Raj. & Ors.
18.D.B. CIVIL WRIT PETITION NO.671/2011 Kamlesh Kumar. VS. State of Raj. & Ors.
19.D.B. CIVIL WRIT PETITION NO.860/2011 Dr.Ankit Mangla & Anr. VS. State of Raj. & Ors.
20.D.B. CIVIL WRIT PETITION NO.864/2011 Dr.Mahendra Kumar. VS. State of Raj. & Ors.
21.D.B. CIVIL WRIT PETITION NO.977/2011 Dr.Deepshikha Maharshi. VS. State of Raj. & Ors.
22.D.B. CIVIL WRIT PETITION NO.1165/2011 Dr.Santosh Ramakant Purohit. VS. State of Raj. & Ors.
23.D.B. CIVIL WRIT PETITION NO.1166/2011 Dr.S. Vijaya Devi. VS. State of Raj. & Ors.
DATE OF ORDER : 26.8.2011 HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE Mr. JUSTICE ALOK SHARMA Dr.PS Bhati ) for the petitioners.
Mr.Manish Shishodia )
Mr.PR Singh )
Mr.VK Mathur )
Mr.RS Choudhary )
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Mr.PR Mehta )
Mr.Vijay Jain )
Mr.Vipul Singhvi )
Mr.Avinash Acharya )
Mr.VR Choudhary )
Mr.Devesh Bohra )
Mr.GR Punia, Sr.Adv. & AAG
a/w Mr.Mahendra Singh ) for the respondents.
Dr.GR Calla )
_____
Heard learned counsel for the parties.
The question involved in all these writ applications is about the constitutional validity of Guidelines providing institutional preference to the extent of 50%. Guideline is contained in Clause (2)(B) which reads as under :-
"(B) Applicable to General (Non-Service) Category :-
Candidates seeking admission to M.D./M.S./Diploma Courses should have passed Final M.B.B.S. Examination from the University of Rajasthan/ Rajasthan University of Health Sciences and should have :-
(1)Completed satisfactorily one year's compulsory rotating internship or would be completing the same before 30.4.2011 after passing the Final MBBS Examination.
(2)Obtained registration from Rajasthan Medical Council (Provisional or Permanent). The candidates registered with other Medical Council are required to submit RMC certificate at the time of Counseling.
(3)Secured at least 50% marks (40% in case of natural born SC/ST/OBC/SBC and 45% in case of Locomotor disabled Candidates) in the Pre-PG Medical Entrance Examination, 2011."
This fact is not in dispute that 50% of the seats are to be filled on the basis of the aforesaid guidelines and 50% of the seats are to be filled by Director General of Health Services, Government of India, New Delhi by way of All India Competitive 4 Examination for the courses of M.D./M.S., Diplomas etc. The University Regulations which are in force for providing 50% of the seats to the Director General of Health Services, are quoted below :-
"To amend the Ordinances 278(E) & (G), Clause I under Heading 'RESERVATIONS' and to substitute the existing sub-clauses (b) and (c) as under :
(b) 50% of the seats, after excluding the seats to be filled in as per allocations made by the director-
General of Health Services, Govt. of India, New Delhi as mentioned in clause (a) above shall be reserved for inservice candidates of Rajasthan State Medical Services in the various specialities as determined and fixed from time to time by the State Government out of which 8% seats shall be reserved for in-service natural born scheduled caste candidates and 6% for natural born scheduled tribe candidates as per roster system to be notified by the State Government from time to time. 3% seats out of each category of 8% (SC) and 6% (ST) and remaining General Category shall be further reserved on merit-cum-priority in each category vertically for DISABLED candidates having permanent disability not less than 40% and not of the nature which may hamper the functioning of the candidate in his/her medical profession. The Certificate regarding permanent physical disability including the percentage, issued by the Medical Board duly constituted by the Central/State Government will only be considered.
(c) The remaining seats shall be called "General Seats". 8% of the remaining seats shall be reserved for in-service natural born scheduled caste candidates and 6% for natural born scheduled tribe candidates to be filled by roster system to be notified by the State Government. 3% seats out of each category of 8% (SC), 6% (ST) and remaining General Category shall be further reserved on merit- cum-priority in each category vertically for DISABLED candidates having permanent disability not less than 40% and not of the nature which may hamper the functioning of the candidate in his/her medical profession. The Certificate regarding permanent physical disability including the percentage, issued by the Medical Board duly constituted by the Central/State Government will only be considered.
Ref: Academic Council Res.No.4, dated 18th March, 2001 and Syndicate Res.No.5, dated 5th/6th May 2001."
5It was submitted by learned counsel appearing on behalf of the petitioners that the petitioners are residents of State of Rajasthan and selected through All India Competitive Examination and were admitted as per their merit in the colleges situated in other States. Since they are residents of State of Rajasthan, they cannot be deprived of staking their claim as against M.D./M.S./Diploma courses in Rajasthan University of Health Sciences. It is also submitted that there are some cases in which the students have passed M.B.B.S. from outside State and have settled in the State of Rajasthan after their marriage.
They are also being deprived to stake their claim as against 50% seats by providing institutional preference as provided in Clause (2)(B) of the guidelines framed for the purpose of admission to M.D./M.S./Diploma courses. Reliance has been placed on the decision of the Hon'ble Apex Court in Dr. Pradeep Jain etc. vs. Union of India and others (AIR 1984 SC 1420).
Learned counsel appearing for the respondents have submitted that in Dr.Pradeep Jain's case (supra), it has been held that for post graduate courses, 50% seats can be reserved for giving institutional preference. The said decision has also been followed in Magan Mehrotra and others. vs. Union of India and others in {(2003) 11 SCC 186}.
The question as stated is about giving of institutional preference with respect to 50% seat which remains with the University. The matter is no more res integra. The Apex Court in Dr.Pradeep Jain's case (supra) has laid down that it is desirable not to provide for any reservation for residence requirement within the State or on institutional preference. But, having 6 regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B.S. course from a medical college or university may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50% of the total number of open seats available for admission to the post-graduate course. The Apex Court has laid down that :-
"22. So much for admission to the M.B.B.S. course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to post graduate courses, such as, M.D., M.S. and the like. There we cannot allow excellence to be compromised by any other considerations because that would be deterimental to the interest of the nation. It was rightly pointed out by Krishna Iyer, J. in Jagdish Saran's case (AIR 1980 SC 820, Paras 23, 39 and
44) and we wholly endorse what he has said:
"The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scale of speciality here the best skill or talent, must be handpicked by selecting according to capability. At the level of Ph.D., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the considerations we have expended upon as important loss their potency. Here equality, measured by matching excellence, has more 7 meaning and cannot be diluted much without grave risk."
"If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks then another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs no disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless."
"Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post graduate or post doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tune performance at the difficult highest of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting substandard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists, not humdrum second-rates. So it is 8 that relaxation on merit, by over ruling equality and quality all together, is a social risk where the stage is post graduate or post-doctoral."
These passages from the judgment of Krishna Iyer, J. clearly and forcibly express the same view which we have independently reached on our own and in deed that view has been so ably expressed in these passages that we do not think we can usefully add anything to what has already been said there. We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to post graduate courses are concerned, for pampering local feeling, will boomeriang. We may with advantage reproduce the recommendation of the Indian Medical Council on this point which may not be the last word in social wisdom but is certainly worthy of consideration:
"Student for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the Universities."
The Medical Education Review Committee has also expressed the opinion that "all admissions to the post-graduate courses in any institution should be open to candidates on an all India basis and there should be no restriction regarding domicile in the State/UT in which the institution is located." So also in the policy statement filed by the learned Attorney General, the Government of India has categorically expressed the view that:
"So far as admissions to the institutions of post-graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all India merit subject to constitutional reservations in favour of Scheduled Castes and Scheduled Tribes."
We are therefore of the view that so far as admissions to post-graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to border considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present 9 circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B.S. Course from a medical college or university may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post- graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course. But, even in regard, to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.
23. What we have said about in regard to admissions to the M.B.B.S. and post-graduate courses must apply equally in relation to admissions to the B.D.S. and M.D.S. courses. So far as admissions to the B.D.S. and M.D.S. Courses are concerned, it will be the Indian Dental Council which is the statutory body of dental practitioners, which will have to carry out the directions given by us to the Indian Medical Council in regard to admissions to M.B.B.S. and post-graduate courses. The directions given by us to the Indian Medical Council may therefore be read as applicable mutatis mutandis to the Indian Dental Council so far as admissions to BDS and MDS courses are concerned."
The said decision of the Hon'ble Apex Court has also been followed in Magan Mehrotra's case (supra). The Apex Court has considered the decision of Pradeep Jain in Paras No.8 and 9, which read thus, "8. Be it stated that in that particular case the Court was in fact not required to examine the issue that arose in Pradeep Jain or Parag Gupta cases and answered in those two cases. A bare look at the judgment of the three-Judge Bench in Pradeep Jain case and two-Judge Bench in Parag Gupta case in relation to the question of preference in the postgraduate course, it cannot but be held that Parag Gupta case took a different view by upholding the residential preference, in essence, which was contrary to the judgment of three-Judge Bench in 10 Pradeep Jain Case, Independently, on examining the issue of preference, we are also of the considered opinion that the decision rendered by this Court in Pradeep Jain case had taken the correct criterion into consideration and we therefore, agree with the principles evolved and the ratio given in Pradeep Jain case so far as it relates to admission into the postgraduate courses and the question of institutional preference to be given to those who had studied their undergraduate courses in the very institution as against the 15% quota on all-India basis. In this view of the matter, the impugned Bulletin of Information issued by Delhi University in relation to the postdoctoral (DM/MCh) postgraduate degree must be held to be contrary to the direction of this Court in Pradeep Jain case and the same is accordingly quashed. However, this order shall be made effective from the next academic session.
9. We, however, direct the States of Assam, Tamil Nadu, Goa and Karnataka to follow the pattern of institutional preference as has been indicated by this Court in Pradeep Jain case and reiterated by us today. These petitions stand disposed of accordingly."
In view of the aforesaid dictum of the Hon'ble Apex Court, we find that 50% of institutional reservation could have been made by Rajasthan University of Health Sciences. The provision cannot be said to be unconstitutional in any manner. The submission raised that they are not being permitted to stake claim in States from which they have passed. We cannot examine the legality of aforesaid action. Moreover, it is open to the petitioners to stake claim against 50% of PG Seats to be filled by way of All India Competitive Examination.
Resultantly, all these writ applications being meritless, are hereby dismissed. The parties to bear their own costs.
Stay applications also stand dismissed.
(ALOK SHARMA),J. (ARUN MISHRA),CJ. S Phophaliya/-