Gujarat High Court
Kushal Ravindrakumar Pandey vs State Of Gujarat & on 4 August, 2017
Equivalent citations: AIR 2018 GUJARAT 25
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/13877/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13877 of 2017
With
SPECIAL CIVIL APPLICATION NO. 14260 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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KUSHAL RAVINDRAKUMAR PANDEY....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
SPECIAL CIVIL APPLICATION NO.13877 OF 2017:
MR MITUL K SHELAT, ADVOCATE WITH MS DISHA N NANAVATY,
ADVOCATE for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR SHAH, GP WITH MR.D.M.DEVNANI, AGP for the
Respondent(s) No. 1
SPECIAL CIVIL APPLICATION NO.14260 OF 2017:
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HC-NIC Page 1 of 42 Created On Sat Aug 05 03:08:23 IST 2017
C/SCA/13877/2017 CAV JUDGMENT
MR P.K.JADEJA, ADVOCATE for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR SHAH, GP WITH MR.D.M.DEVNANI, AGP for the
Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 04/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. These petitions are filed under Article 226 of the Constitution of India wherein the petitioners have challenged the validity of Rule 4(3) of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (`Rules of 2017' for short) to the extent it makes those students who are residents of State of Gujarat and who have passed 10th and 12th standard examinations from a school in Daman (UT) ineligible for applying for admissions to professional medical education courses in the State of Gujarat in state quota. The petitioners have prayed that the said Rule be quashed and set aside to the aforesaid extent.
2. The issue involved in both these petitions is similar and therefore both these petitions are heard together and are being Page 2 of 42 HC-NIC Page 2 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT disposed off at the admission stage with the consent of learned advocates appearing for the parties. However, for the sake of convenience, the facts narrated in Special Civil Application No.13877 of 2017 are recorded, which are as under:
2.1 It is the case of the petitioner that the petitioner and his father are permanent residents of Valsad district and the petitioner was born in the State of Gujarat. The Union Territory (`UT' for short) of Diu, Daman and Dadra Nagar Haveli are adjacent to State of Gujarat and for the purpose of education, the educational institutions situated within the UT have always been considered and recognized for the purpose of grant of admission within the state of Gujarat. The petitioner, therefore, in view of the proximity of the territory of Daman to certain areas in Valsad, studied in standard 10th and 12th in CBSE school situated in Daman which is six kilometers from the residence of the petitioner. The petitioner secured 95% marks in 12th standard examination and he also appeared in National Eligibility-cum-Entrance Examination (`NEET' for short) for the purpose of securing admission to M.B.B.S. course in the colleges situated in the state of Gujarat. The petitioner secured 471 marks out of 720 marks in NEET. The Page 3 of 42 HC-NIC Page 3 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT petitioner, therefore, on the basis of the said result, registered in the online process for admission in M.B.B.S.Course. On the basis of the performance of the petitioner in NEET, it is the say of the petitioner that he is expected to get admission to M.B.B.S. course in one of the best medical colleges in the state of Gujarat.
However, when he went to Valsad medical college for verification, it was informed by the concerned officer that since the petitioner's education was in CBSE school in Daman, he would not be eligible for admission under the admission process being undertaken by respondent-Admission Committee.
2.2 The petitioner, thereafter, made further inquiry and came to know that for the academic year of 2017-2018, the respondent-State has issued notification dated 23.6.2017, by which the Rules of 2017 were framed and in the said Rules, Rule 4 provides for eligibility for admission. The grievance of the petitioner is that Rule 4(3) prescribes that the candidate who desires admission shall have passed 10th and 12th qualifying examination with `B' group or `AB' group from the Gujarat Board or the Central Board of Secondary Education (`CBSE' for short) provided that school in which the candidate has studied is located in the state of Gujarat. The Page 4 of 42 HC-NIC Page 4 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT grievance of the petitioner is that the CBSE school from which the petitioner has passed 10th and 12th qualifying examination is situated in Daman and therefore though the petitioner is domicile and resident of State of Gujarat, he is denied admission on the basis of the impugned Rules. The petitioner has, therefore, filed the present petition.
3. Heard learned advocates Mr.Mitul Shelat and Mr.P.K.Jadeja for the petitioners in the respective petitions and learned Government Pleader Ms.Manisha Shah for the respondents.
3.1 Learned advocate Mr.Shelat submitted that the petitioner and his father are residents of state of Gujarat and as the CBSE school situated at Daman which is UT is at a distance of less than six kilometers from the residence of the petitioner, the petitioner studied in the said school and passed standard 12th qualifying examination from the said school. It is contended that there are 12 schools in Daman, out of which 11 schools are affiliated to the state Board. Even the DEO, Valsad has an administrative control over the said schools. It is further contended that the students who have passed from the 11 schools which are situated in Daman and which are affiliated to the state Board and are Page 5 of 42 HC-NIC Page 5 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT outside the territorial limit of the state of Gujarat are eligible for the purpose of admission to professional medical courses whereas though the petitioner is domicile of Gujarat, merely because the CBSE school in which the petitioner has studied is located outside the territorial limit of the state of Gujarat i.e. in the UT of Daman, the admission is denied to him as per the impugned Rule. Therefore, the aforesaid Rule is violative of Article 14 of Constitution of India. Hence, the same be quashed and set aside.
3.2 Learned advocate Mr.Shelat would further contend that even the Gujarat University and the Admission Committee for Professional Courses (Gujarat State) permit the students of Daman to apply for admission to courses in Bachelor of Science and Bachelor of Engineering and Technology since number of years. Learned advocate has referred to the eligibility criteria provided in the admission brochure in the year 2017 issued by the Admission Committee for Professional Courses (Gujarat State) and more particularly referred to Clause `D' of admission modality which provides as under:
"[D] Eligibility for Admission:
(1) For the purpose of admission, a candidate shall have passed the Qualifying Examination with minimum eligibility criteria of Page 6 of 42 HC-NIC Page 6 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT percentage of marks in subjects prescribed by AICTE from time to time from-
(i) the Gujarat Board; or
(ii) the Central Board of Secondary Education; Provided that,
(a) the school in which the candidate has studied, shall have been located in the State of Gujarat; or
(b) the school in which the candidate has studied, shall have been located in the Union Territories of Daman and Diu and Dadra and Nagar Haveli and whose parents are of Gujarat origin; or
(iii) the Council of Indian School Certificate Examination, New Delhi: Provided that,
(a) the school in which the candidate has studied, shall have been located in the State of Gujarat; or
(b) the school in which the candidate has studied, shall have been located in the Union Territories of Daman and Diu or Dadra and Nagar Haveli and whose parents are of Gujarat origin; or
(iv) the National Institute of Open Schooling:
Provided that,
(a) the study Centre/school in which the candidate has studied, shall have been located in the State of Gujarat; or
(b) the study Centre/school in which the candidate has studied, shall have been located in the Union Territories of Daman and Diu and Dadra and Nagar Haveli and whose parents are of Gujarat origin; or
(v) the International School Board (International Baccalaureate and Cambridge): Provided that,
(a) the study Centre/school in which the candidate has studied, shall have been located in the State of Gujarat; or
(b) the study Centre/school in which the candidate has studied, shall have been located in the Union Territories of Daman and Page 7 of 42 HC-NIC Page 7 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT Diu or Dadra and Nagar Haveli and whose parents are of Gujarat origin; and
(vi) have appeared in GUJCET conducted in the corresponding academic year."
3.3 Learned advocate Mr.Shelat, after referring to the aforesaid Rules, further submitted that the professional courses are separate class and therefore by providing different Rules for admission to Bachelor of Science and Bachelor of Engineering and Technology Courses and to the Medical and para- Medical professional courses, the respondent- State has created the class within the class without there being any intelligible differentia having any nexus with the object to be achieved. Thus, it is submitted that the aforesaid action on the part of the respondent-State is contrary to the mandate flowing from Article 14 of Constitution of India. Learned advocate Mr.Shelat thereafter submitted that the students who are residents of Daman but who have passed their 10th and 12th standard qualifying examination from the school situated in Daman but affiliated with the Gujarat State Board are eligible for admission in the Medical and para-Medical courses whereas the students like the petitioner who is resident of Gujarat and passed 10th and 12th standard qualifying examination from CBSE school situated in Daman is not permitted or not eligible for Page 8 of 42 HC-NIC Page 8 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT admission to the aforesaid courses is violative of Article 14 of the Constitution of India and therefore the impugned Rule be quashed and set aside. Learned advocate Mr.Shelat further submits that so far as the seats allocated to the UT of Daman under the All India Pool is concerned, only those students who are possessing domicile certificate of Daman are eligible to be considered for admission and therefore the petitioner who is a permanent resident of Gujarat would be ineligible for being considered for admission against the state quota seats in Gujarat as well as Daman and students who are not permanent residents of Gujarat but are residents of Daman would be eligible for admission against the state quota of Gujarat and territory quota of Daman. Thus, there cannot be any discrimination between students on the basis of the Board to which their school is affiliated. All students would be entitled to equal treatment, as per the submission of learned advocate Mr.Shelat.
3.4 Learned advocate Mr.Shelat thereafter contended that the classification cannot be justified by reference to the term `Institutional Preference'. The term `Institutional Preference' is applicable only in reference to post-graduate admissions where the institutions which are granting admissions are conferred with the right Page 9 of 42 HC-NIC Page 9 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT to prefer students who are their own graduates. The respondent no.2-Admission Committee is not the examining body. It is merely an agency to regulate admissions and ensure that most meritorious candidate secures admission. It has no right of `Institutional Preference'. Thus, in reference to the impugned classification, there is no institutional continuity at all. Thus, the decision of the state to include the students of Daman but only those who have studied in schools affiliated to the state Board to the exclusion of students who have studied in Daman but in schools affiliated to other Boards is therefore unconstitutional.
3.5 Learned advocate Mr.Shelat has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Dr.Pradeep Jain V/s Union of India reported in 1984(3) SCC 654 and submitted that in the said case the Hon'ble Court classifies the concept of domicile and institutional preference. While domicile has been upheld for admission to undergraduate courses, it has been held to be unconstitutional for post-graduate courses and only institutional preference is possible in post-graduate courses.
3.6 Learned advocate has relied upon the following observations made in the said judgment Page 10 of 42 HC-NIC Page 10 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT in paragraph 19 which reads as under:
"It will be noticed from the above discussion that though intra-state discrimination between persons resident in different districts or regions of a State has by an large been frowned upon by the court and struck down as invalid as in Minor P. Rajendran's case (supra) and Perukaruppan's case (supra), the Court has in D.N. Chanchalla's case and other similar cases up- held institutional reservation effected through university wise distribution of seats for admission to medical colleges. The Court has also by its decisions in D.P. Joshi's case and N. Vasundhara's case (supra) sustained the constitutional validity of reservation based on residence within a State for the purpose of admission to medical college. These decisions which all relate to admission to MBBS course are binding upon us and it is therefore not possible for us to hold, in the face of these decisions, that residence requirement in at State for admission to MBBS course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity contained in Article 14 We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence requirement in a State can be introduced as a condition for admission to the MBBS course. It is of course true that the Medical Education Review Committee established by the Government of India has in its report recommended after taking into account all relevant considerations, that the "final objective should be to ensure that all admissions to the MBBS course should be open to candidates on an All India basis without the imposition of existing domiciliary condition," but having regard to the practical difficulties Page 11 of 42 HC-NIC Page 11 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT of transition to the stage where admissions to MBBS course in all medical colleges would be on All India Basis, the medical Education Review Committee has suggested "that to begin with not less than 25 per cent seats in each institution may be open to candidates on all India basis." We are not all sure whether at the present stage it would be consistent with the mandate of equality in its broader dynamic sense to provide that admissions to the MBBS course in all medical colleges in the country should be on all India basis. Theoretically, of course, if admissions are given on the basis of all India national entrance examination, each individual would have equal opportunity of securing admission, but that would not take into account diverse consideration, such as, differing level of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all India basis get admission to the MBBS course in another region far remote from their own and other allied factors. There can be no doubt that the policy of ensuring admissions to the MBBS course on all India basis is a highly desirable policy, based as it is on the postulate that India is one national and every citizen of India is entitled to have equal opportunity for education and advancement, but it is an ideal to be aimed at and it may not be realistically possible. in the present circumstances, to adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities a situation which simply does not exist in the country today. There are massive social and economic disparities and inequalities not only between the States and States but also between region and region within a state and even between Page 12 of 42 HC-NIC Page 12 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT citizens and citizens within the same region. There is a yawning gap between the rich and the poor and there are so many disabilities and injustices from which the poor suffer as a class that they cannot avail themselves of any opportunities which may in law be open to them. They do not have the social and material resources to take advantage of these opportunities which remain merely on paper recognised by law but non-existent in fact. Students from backward States or regions will hardly be able to compete with those from advanced States or regions because, though possessing an intelligent mind, they would have had no adequate opportunities for development so as to be in a position to compete with others. So also students belonging to the weaker sections who have not, by reason of their socially or economically disadvantaged position, been able to secure education in good schools would be at a disadvantage compared to students belonging to the affluent or well- to-do families who have had the best of school education and in open All India Competition, they would be likely to be worsted. There would also be a number of students who, if they do not get admission in a medical college near their residence and are assigned admission in a far off college in another State as a result of open All India competition, may not be able to go to such other college on account of leak of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursing the medical course even though on paper they would have got admission in a medical college. It would be tantamount to telling these students that they are given an opportunity of taking up the medical course, but if they cannot afford it by reason of the medical college to which they are admitted being far away in another Page 13 of 42 HC-NIC Page 13 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT State, it is their bad luck: the State cannot help it, because the State has done all that it could, namely, provide equal opportunity to all for medical education. But the question is whether the opportunity provided is real or illusory? We are therefore of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State and for this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to the Central Board of Secondary Education, It would be constitutionally permissible to provide, as an interim measure until we reach the stage when we can consistently with the broad mandate of the rule of equality in the larger sense; ensure admissions to the M.B.B.S, course on the basis of national entrance examination an ideal which we must increasingly strive to reach for reservation of a certain percentage of seats in the medical colleges for students satisfying a prescribed residence requirement as also for students who have passed P.U.C. or pre-medical examination or any other qualifying examination held by the university or the State and for this purpose it should make no difference whether the qualifying examination is conducted by the State Board or by the Central Board of Secondary Education, because no discrimination can be made between schools affiliated can be made between schools affiliated to the Central Page 14 of 42 HC-NIC Page 14 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT Board of Secondary Education. We may point out that at the close of the arguments we asked the learned Attorney General to inform the court as to what was the stand of the Government of India in the matter of such reservation and the learned Attorney General in response to the inquiry made by the Court filed a policy statement which contained the following formulation of the policy of the Government of India:
"Central Government is generally opposed to the principle of reservation based on domicile or residence for admission to institution of higher education, whether professional or otherwise. In view of the territorially articulated nature of the system of institutions of higher learning including institutions of professional education, there is no objection, however, to stipulating reservation or preference for a reasonable quantum in under-graduate courses for students hailing from the school system of educational hinterland of the institutions. For this purpose, there should be no distinction between schools affiliated to CBSC."
We are glad to find that the policy of the Government of India in the matter of reservation based on residence requirement and institutional preference accords with the view taken by us in that behalf. We may point out that even if at some stage it is decided to regulate admissions to the M.B.B.S. course on the basis of All India Entrance Examination, some provision would have to be made for allocation of seats amongst the selected candidates on the basis of residence or institutional affiliation so as to take into account the aforementioned factors."
3.7 Learned advocate Mr.Shelat thereafter Page 15 of 42 HC-NIC Page 15 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT has placed reliance upon the decision rendered by the Hon'ble Supreme court in the case of Suneel Jatley V/s State of Haryana reported in 1984(4) SCC 296, wherein it was held that reservation in favour of students who had studied in rural schools was held to be unconstitutional and it was also held that a qualification which can be acquired as a matter of choice could not be sustained either as meeting with an intelligible differentia or meeting with any rational object and hence was illegal.
3.8 Learned advocate Mr.Shelat has further placed reliance upon the judgment dated 5.5.2017 passed by the Division Bench of this Court in Special Civil Application No.5749 of 2017 and submitted that in the said decision, this Court has set aside the classification sought to be made by the state Government on the basis of the examination Board and has declared that all students have to be treated at par regardless of the Board to which their schools are affiliated to. It is further held that it is impermissible to allocate seats on the basis of school board and would amount to discrimination.
3.9 Learned advocate has also placed reliance upon the following decisions:
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1. Minor P.Rajendran V/s State of Madras, reported in AIR 1968 SC 1012.
2. State of U.P. V/s Pradip Tandon, reported in (1975)1 SCC 267.
3. Indian Medical Association V/s Union of India, reported in 2011(7) SCC 179.
3.10 In view of the aforesaid submissions, learned advocate Mr.Shelat urged that the impugned Rule be set aside and direction be issued to the respondents to permit the petitioner to participate in the admission process for admission to the M.B.B.S.course.
4. Learned advocate Mr.Jadeja appearing for the petitioner in Special Civil Application No.14260 of 2017 has adopted the arguments advanced by learned advocate Mr.Shelat.
5. On the other hand, learned Government Pleader Ms.Shah contended that as per Rules of 2017, a candidate who has passed standard 10th and 12th qualifying examination from State Board are eligible for admission in the professional medical courses. Similarly, a student who has passed standard 10th and standard 12th qualifying examination from CBSE or ICSE school situated within the state of Gujarat are also eligible. It is submitted that by framing the impugned Rule, Page 17 of 42 HC-NIC Page 17 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT the respondent has not violated Article 14 of the Constitution of India as alleged by the petitioner. It is submitted that if analogy put forward by the petitioner is accepted, then there would be no difference between the candidates belonging to the Gujarat State Board and candidates belonging to any other Board situated outside state of Gujarat.
5.1 It is further submitted that the Rules pertaining to admissions to professional and technical courses cannot be compared with the admission to the Rules of Medical Courses. It is submitted that in professional engineering courses, there are approximately 68,667 seats available against which only 38,000 candidates are available and therefore approximately 50% of the seats remain vacant whereas in medical courses, there are less number of seats compared to the available candidates and therefore it is not correct on the part of the petitioners to contend that the respondents have created a class within class. Thus, the aforesaid contention may not be entertained.
5.2 Learned Government Pleader Ms.Shah thereafter submitted that there was no University within the UT of Daman and therefore the Gujarat University granted affiliation to the Dental Page 18 of 42 HC-NIC Page 18 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT college situated at Daman. It is contended that there is certain percentage of seats reserved for the students of Gujarat Board in the said University.
5.3 Learned Government Pleader Ms.Shah thereafter pointed out that the Rules for admission to the professional medical courses from the year 2010 onwards are similar to Rule 4(3) of the Rules of 2017. Learned Government Pleader referred to the said Rules which are produced with the affidavit-in-reply.
5.4 Learned Government Pleader thereafter contended that in the CBSE school situated in Daman, 15% of All India quota is reserved and therefore the petitioner will get chance in the All India quota for getting admission in the medical professional courses. The issue involved in the present petitions is no more res integra. It is submitted that the Division Bench of this Court in the case of Visakha D/o Mahendra Patel V/s State of Gujarat reported in 2013(1) GLR 11 as well as in the case of Sheetal Yeshwantkumar Parmar V/s State of Gujarat reported in 2013(3) GLR 2643 has examined similar type of Rules and held that similar type of Rule provided for giving admission in M.B.B.S./B.D.S.courses to the students who have passed 12th standard Page 19 of 42 HC-NIC Page 19 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT examination from any institution situated within the State is not invalid.
5.5 Learned Government Pleader thereafter placed reliance upon the decision rendered by the Division Bench of this Court in the case of Nina Punjabhai Vadhel V/s State of Gujarat reported in 2015(1) GLR 676 wherein the Division Bench of this Court has held that the residence requirement in a state can be definitely introduced as essential criteria and in view of the vacancy position indicated by the state of Gujarat, there is valid justification for permitting students outside the state of Gujarat in appearing in engineering courses and in not permitting such students in medical and para- medical courses. Learned Government Pleader therefore submitted that the impugned Rule cannot be said to be violative of Article 14 of Constitution of India as contended by the learned advocates for the petitioners and therefore the petition be dismissed.
6. 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 Page 20 of 42 HC-NIC Page 20 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT 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,-
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."
7. It is revealed that the petitioner has passed standard 10th and 12th qualifying examination from CBSE school situated in Daman. The main grievance of the petitioners is that though the petitioners are domicile of state of Gujarat, merely because the school in which they have studied is situated outside the territorial limit of the state of Gujarat, because of the impugned Rule, the admission is denied to them.
Page 21 of 42HC-NIC Page 21 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT Similar issue was raised before this Court in the case of Vishakha D/o Mahendra Patel (supra) as well as in the case of Sheetal Yeshwatkumar Parmar(supra). In the case of Vishakha D/o Mahendra Patel(supra), the Division Bench recorded the facts of the said case in paragraph 4 which reads as under:
"4. The facts giving rise to filing of Special Civil Application No. 8925 of 2012 may be summed upthus:
4.1. The native place of the father of the petitioner is the village Vagharota, Taluka Prantij, Dist. Sabarkantha situated in the State of Gujarat. The father of the petitioner lastly studied at Sainik School, Balachhadi, Jamnagar, from which he was selected to National Defence Academy in the Army as an officer. Since, the father of the petitioner was working in the Army, he was posted at different places including border areas, and thus the petitioner studied at different schools staying with her father while he was working at different places with the Army.
4.2. The father of the petitioner took voluntary retirement on 4thApril, 2010 when the petitioner was studying in 12th Standard in a school, namely, Tagore International School, Delhi. The petitioner continued her studies in the same school and completed her 12th Standard education in March, 2011 scoring 90.60% marks in Science stream from Central Board of Secondary Education, Delhi.
The petitioner thereafter appeared for GUJCET examination in the year 2011 but having obtained less than 50% marks, was not qualified for admission to M.B.B.S. course.
Page 22 of 42HC-NIC Page 22 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT In the next year, viz. 2012, the petitioner again appeared for GUJCET and has cleared the said examination in all the three papers, i.e. Physics, Chemistry and Biology scoring 78.75 marks out of 120 and the percentile rank of the petitioner was 93.25,qualifying her for admission in M.B.B.S. course. The petitioner submitted form to the respondent No.1 for M.B.B.S. course and necessary receipt was also given accepting the form. However, when the provisional merit was published in the Website, the petitioner's name was not found. Subsequently, the petitioner went to the office of the respondent No. 1 and came to know that she had not been given admission since she had not studied in the State of Gujarat in 11th and 12th Standards. The petitioner submitted a written application to give the reasons, but no reasons having been assigned, the petitioner filed Special Civil Application No. 8925 of 2012 which as stated hereabove, was rejected by the learned Single Judge.
4.3. In the other writ-application, viz. Spl.C.A. No. 9917 of 2012 out of which L.P.A. No. 1094 of 2012 arises, the case of the petitioner was that the father of the petitioner was serving in the Indian Navy and for the period between 30th May, 2009 and 30th May, 2012, she prosecuted her studies at Navy Children School, Kochi, which is affiliated to the Central Board of Secondary Education. The petitioner appeared at the 12th Standard examination taken by the said Board and also appeared in GUJCET for securing admission for M.B.B.S. and she was permitted to appear at the said examination. Having cleared GUJCET, the petitioner applied for admission to the M.B.B.S. course. However, the said form was not processed on the ground that the petitioner had not cleared the 12th Standard examination from a school situated in the State of Gujarat and Page 23 of 42 HC-NIC Page 23 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT the petitioner was not exempted from the saidrequirements provided under the Gujarat Rules.
4.4. According to the petitioner, though Rules 5(1) and (2) of the Gujarat Rules are aimed at facilitating the children of officers of the State of Gujarat and All India Services who are posted out of Gujarat for the reasons beyond their control, to secure admission in the institutions situated in the State of Gujarat, the same are required to be read, construed and interpreted to include even the officers/personnel of the Defence so as to uphold its validity. According to the petitioner, the discriminatory treatment to the officers/personnel of the Defence is violative of Art. 14 of the Constitution of India and the exclusion of the Defence personnel has no rationale. In other words, according to the petitioner, there exists no nexus with the object sought to be achieved by excluding the children of the Defence personnel.
4.5. As stated above, in the writ-petition filed by the petitioner, the learned Single Judge issued Rule, but did not grant any interim relief."
8. The Division Bench in paragraph 8 has observed as under:
"8. In order to appreciate the aforesaid question, it will be profitable to refer to Rules 5, 6 and 8 of the Gujarat Rules, which are quoted below:
"5. Eligibility for Admission :- (1) For the purpose of admission, a candidate shall have -Page 24 of 42
HC-NIC Page 24 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT (A)Passed the 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, should have been located in the State of Gujarat; or
(iii)the Council of Indian School Certificate Examinations, New Delhi Board provided that the school in which the candidate has studied should have been located in the State of Gujarat :
Provided that the candidate seeking admission in Ayurveda shall have passed either the qualifying examination or the 10thexamination with Sanskrit subject, and (B)Appeared in the Gujarat Common Entrance Test conducted in the current academic year.
(2)(a) Sons and daughters of All India Services Officers viz. Indian Administrative Service, Indian Police Service and Indian Forest Service allotted to the Gujarat State and serving outside the Gujarat State on deputation, and
(b)Sons and daughters of Gujarat Government employees who have been posted outside the Gujarat State for the Administrative reasons, shall be treated at par with the candidates under sub-rule (i) provided they have passed the qualifying examination from the respective State Board and he/she must have appeared in the Gujarat Common Entrance Test conducted in the current academic year and obtained marks under sub-rule (3) of Rule 12.
In such cases, his candidature shall be included in the Gujarat Board merit list referred to in clause (a) of sub-rule (2) of Page 25 of 42 HC-NIC Page 25 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT Rule 11. If such a candidate has passed the qualifying examination from the Central Board of Secondary Education or the Council of the Indian School Certificate Examination, New Delhi Board his candidature shall be included in the merit list of respective Board referred to in clause (b) of said sub-rule (2).
(3)A candidate who has,-
(i)studied under Jawahar Navodaya Vidyalaya Scheme upto Standard VIII in any of the schools located in the State of Gujarat.
(ii)thereafter studied in any of the schools located out of the State of Gujarat under the said scheme.
(iii)passed qualifying examinations from a Navodaya Vidyalay located outside Gujarat State, and
(iv)appeared in the Gujarat Common Entrance Test conducted in the current academic year and obtained marks under sub-rule (3) of Rule 12 shall be eligible for admission and his candidature shall be included in the merit list of the Central Board as prescribed in clause (b) of sub-rule (2) of Rule 11.
Explanation :- "Jawahar Navodaya Vidyalaya Scheme" means the Jawahar Navodaya Vidyalaya Scheme started during the year 1985-86 by the Government of India in accordance with the National Policy of Education. The Scheme is managed by Navodaya Vidyalaya Samiti, an autonomous organization under the department of Education, Ministry of Human Resource Development.
(4) A candidate who has passed the qualifying examination after appearing in the supplementary examination conducted by the Page 26 of 42 HC-NIC Page 26 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT Board shall not be eligible for admission in the current academic year.
(5) A candidate who has secured admission under these rules in any year shall not be eligible for further admission to any course until the period within which he/she might have completed the course in which he has secured admission.
Explanation :-
"Candidate who had taken admission after the implementation of the Act shall not be eligible for further admission to any course until the period within which he/she might have completed the course in which he/she has secured admission i.e. candidates admitted in Academic year 2008-2009 and onwards" xxxxx.
9. Thereafter, the Division Bench observed and held in paragraphs 9 to 11 as under:
"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 ofPradeep 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 Page 27 of 42 HC-NIC Page 27 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT 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 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 Page 28 of 42 HC-NIC Page 28 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT 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."
10. Similarly, in case of Sheetal Yeshwantkumar Parmar(supra), the Division Bench has recorded the reliefs prayed for in the said petition and the facts in paragraphs 1 and 2 respectively which read as under:
"1. This writ-application under Art. 226 of the Constitution of India is at the instance of a student who has been denied admission in the professional courses such as M.B.B.S./B.D.S. on the ground of not having studied in a C.B.S.E. school located within the State of Gujarat, and has prayed for the following reliefs :
"(A) To hold and declare that Rule 5(A)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2013 as illegal and ultra vires the Constitution of India insofar as it makes a student of Gujarati origin and domicile of Gujarat ineligible from getting admission in the professional courses such as M.B.B.S./B.D.S. on the ground of not having studied in C.B.S.E. Schools located in the State of Page 29 of 42 HC-NIC Page 29 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT Gujarat and be pleased to quash and set aside the same;
(B) to direct the respondents to consider the case of petitioner for admission to the professional courses including admission into M.B.B.S. course, on the basis of her merit, and in accordance with law;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to consider the case of petitioner and include her in the merit list on the basis of her own merit and grant admission to her in the professional courses including the course of M.B.B.S. in accordance with law;
(D) Pass such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."
2. The facts giving rise to the present application may be summed up thus :
The petitioner belongs to a Scheduled Caste category and was born in Ahmedabad (Gujarat). The father of the petitioner also belongs to the State of Gujarat and is working with Indian Oil Corporation. The father of the petitioner at present has been posted at Gauhati, Assam.
The father of the petitioner was earlier working in the State of Gujarat, and thereafter, was transferred to Mumbai. From Mumbai, he was transferred to Gauhati.
The petitioner studied in a C.B.S.E. Page 30 of 42 HC-NIC Page 30 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT affiliated Delhi Public School in Gauhati from 25th June, 2010 to 28th May, 2012 and successfully cleared her Standard-12 (A.I.S.S.C.E.) in the year 2011-2012. The petitioner also appeared and successfully cleared GUJ.C.E.T. as well as N.E.E.T. Having cleared GUJ.C.E.T., the petitioner applied for admission to the M.B.B.S. course. However, the said form was not processed on the ground that the petitioner had not cleared the Standard-12 examination from a school situated in the State of Gujarat and the petitioner was not exempted from the said requirement provided under the Gujarat Rules."
11. The Division Bench of this Court thereafter observed in paragraphs 12, 14 and 15 as under:
"12. We are afraid, we are not impressed by such submission of Mr. Yagnik as the following observations of the Supreme Court in the case of Dr. Pradeep Jain (supra) are very clear in that regard.
".....The Court has also by its decisions in D. P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334 and N. Vasundara v. State of Mysore, AIR 1971 SC 1439 sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to medical colleges. These decisions which all relate to admission to M.B.B.S. course are binding upon us, and it is therefore, not possible for us to hold, in the face of these decisions, that residence requirement in a State for admission to M.B.B.S. course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the Page 31 of 42 HC-NIC Page 31 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT mandate of equality of opportunity contained in Art. 14. We must proceed on the basis that at least so far as admission to M.B.B.S. course is concerned, residence requirement in a State can be introduced as a condition for admission to the M.B.B.S. Course."
Thus, in our opinion, the issue as regards the constitutional validity of the impugned Rules stands concluded by our decision in the case of Vishaka Mahendra Patel (supra) and we propose to follow our decision in the present case also.
14. We may only say that the question, whether the State Government can prescribe and make it obligatory for an applicant to have passed the qualifying examination for the purpose of securing admission in M.B.B.S. from the Central Board of Secondary Education provided that the school in which a candidate has studied is located within the State of Gujarat is no more res integra.
15. In Kumari Chitra Ghosh v. Union of India, reported in AIR 1970 SC 35, for the first time reservation in medical colleges requiring institutional qualifications was considered and it was held the Central Government runs the medical colleges therefore it is within the domain of that Government to lay down the criteria for eligibility. From the very nature of things, it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other Page 32 of 42 HC-NIC Page 32 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis, it is not for the Courts to interfere with the manner and method of making the classification. The classification is permissible and there is nothing wrong in it.
In our opinion, the Rule impugned is not arbitrary, unreasonable or irrational. It is based on an intelligible differentia and there is a nexus between the said classification and the objects for the medical education given in the State of Gujarat. In fact, the said classification is obviously made for the purpose of providing a fair opportunity for medical education to the student community in the State of Gujarat and for the avowed aims and objects to produce basic doctors to provide primary health care to the citizens of the State of Gujarat.
In our opinion, this classification is thus absolutely valid and does not, in any manner, violate the provision of Art. 14 of the Constitution of India. Such kind of classification has been expressly approved by the Supreme Court in Dr. Pradeep Jain (supra) while dealing with the question of validity of the wholesale reservation made by some of the State Governments on the basis of domicile or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State. Although, the Supreme Court held the wholesale reservation as unconstitutional and void as offending the equality clause enshrined in Art. 14 of the Constitution, it observed that the very mandate of the equality clause viewed in the Page 33 of 42 HC-NIC Page 33 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT perspective of social justice would justify some extent of reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the University or the State."
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 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 Page 34 of 42 HC-NIC Page 34 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT 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.
14. The submission canvassed by learned advocate Mr.Shelat that by providing two different eligibility criteria for admission in professional degree engineering colleges and professional medical courses, the respondent- State has created the class within class is also not required to be entertained in view of the decision rendered by this Court in the case of Nina Punjabhai Vadhel(supra). The Division Bench of this Court recorded the contention of the respondent-State in the affidavit-in-reply filed Page 35 of 42 HC-NIC Page 35 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT in the said case in paragraph 6 which reads as under:
"6. The respondent-State has, consequently, filed an affidavit-in-reply and the defence of the State may be summed up thus :
(a) It is always permissible for the State Government to formulate different policies for admission to different disciplines, viz.
Medical and Engineering, which are totally distinct owing to their different characteristics, and hence, they are not comparable. In other words, they are two different classes founded upon intelligible differentia having a rationale relation to the object sought to be achieved and merely because the children of persons doing Military Services for the Government of India are eligible for admission to undergraduate Engineering Course in the State, the Rules under challenge where such children are not eligible for admission to undergraduate Medical Course would not ipso facto become bad in law.
(b) Comparison of the Rules of eligibility framed for admission to Medical Course with the eligibility criteria provided in the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013 is misplaced inasmuch as both the streams and disciplines are distinct and placed with different circumstances and situations. Apart from this, one of the important factors which plays role in the admission to a particular discipline is demand and supply inasmuch as there is more demand for admissions in Medical Colleges as against the demand for admissions in the Engineering Colleges, with major difference in the availability of number of seats in Page 36 of 42 HC-NIC Page 36 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT both the courses.
(c) So far as Engineering seats are concerned, they are much more in number as compared to undergraduate Medical Courses. As against total 10,164 seats in Government Engineering Colleges in the State, there are hardly 1,080 seats for admission in Government Medical Colleges in the State. If the same formula as applicable to Engineering Course is adopted in case of undergraduate Medical Course, it may so happen that students from the State of Gujarat may be deprived of their chance to get Medical admission. Occurrence of such eventuality is practically impossible in case of Government Engineering Colleges, where even after accommodating the students from the State, there always remain surplus vacant seats.
(d) The main reason for two different parameters for admission to two different disciplines lies in the fact that in undergraduate Medical Course, outside students otherwise have an option to stand in competition by accommodating themselves in All India quota seats of 15% of the total number of available seats. This would be an option for such outside student in addition to the option for opting for admission to respective State Medical Colleges wherefrom they have passed the qualifying examination. As against the above, such an option is not available to outside students for the purpose of getting admission to undergraduate Engineering Courses, and therefore, it was thought fit to allow such outside students to compete with the students who have passed the qualifying examination either from the Gujarat Board or from the colleges affiliated to C.B.S.E. or I.S.C.E. as well as to students who are sons and daughters of I.P.S., I.A.S., and I.F.S. allotted to the State and serving outside the State, who have Page 37 of 42 HC-NIC Page 37 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT passed equivalent qualifying examination from other State Boards.
6.1. Subsequently, by filing a supplementary affidavit-in-reply, the State Government has given the positions of seats available in respect of undergraduate Paramedical Courses in the State in the year 2013-2014, which are quoted below :
Position of seats available in respect of Undergraduate Paramedical Courses in the State for the year 2013-14 Sr.CoursesTotal No.Total No.Grand totalNo. Of No.of seatsof seats of seats seats in Govt./in S.F.Is.available which Grant-in-aid in the remained Colleges State vacant
1.Ayuverdic270200470Nil, 2.Physiotherapy 3601,0801,440Nil, 3.Homoeopathy 4001,2251,625Nil4.B.Sc.Nursing 3901,4751,86555.Others,i.e.,10160170 NilOrthotics,Prosthetics,Optometry,Speech Language Therapy Position of seats available in respect of Undergraduate Engineering Courses in the State for the year 2013-14 Sr.Courses Total No. of Total No. ofGrandNo.
Of No.seats in Under-seats in Under-Total seats graduate Engg.graduateEngg.whichCourses run Courses run remainedby Govt.by S.F.Is. Colleges
1.Engineering10,16462,68563,5218,899
2.Pharmacy2474,6604,9072,693"
15. Thereafter, it is held in paragraph 10 as under:
"10. In view of the above observations of the Page 38 of 42 HC-NIC Page 38 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT Supreme Court, we find substance in the contention of Mr. Trivedi, the learned Advocate General appearing on behalf of the State of Gujarat that so far as the Rules relating to Medical and Paramedical Courses are concerned, the residence requirement in a State can be definitely introduced as essential criteria and in view of the vacancy position indicated by the State of Gujarat, there is valid justification for permitting students outside the State of Gujarat in appearing in the Engineering Courses and in not permitting such students in Medical and Paramedical Courses."
Thus, from the aforesaid decision rendered by the Division Bench, we are of the view that the respondent-State is justified in framing the different Rules with regard to eligibility criteria for giving admission to the candidates in professional engineering courses and professional medical and other para-medical courses looking to the number of seats available in aforesaid courses. At this stage, it is required to be noted that learned Government Pleader has specifically pointed out that in professional engineering courses this year, there are approximately 68,667 seats available against which only 38,000 candidates have filled in the application forms and therefore approximately 50% of the seats remained vacant whereas in the medical courses, there are less number of seats compared to the available candidates. Thus, in the facts and circumstances of the present case, Page 39 of 42 HC-NIC Page 39 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT we are of the view that the respondent-State has not given any discriminatory treatment as alleged by the petitioners and it cannot be said that the state has created a class within the class as contended by the petitioners.
16. We cannot dispute the proposition of law laid down by the Hon'ble Supreme Court in the decisions upon which reliance is placed by learned advocate Mr.Shelat. However, the said decisions would not be applicable in the facts of the present case. Learned advocate for the petitioners has also placed reliance upon the decision rendered by the Division Bench of this Court delivered on 5.5.2017 passed in Special Civil Application No.5749 of 2017 and contended that the classification sought to be made by the state Government on the basis of the examination board was declared invalid and also declared that the students have to be treated at par regardless of the Board to which their schools are affiliated to. However, we are of the view that the said decision would not be helpful to the petitioners as in the said case, the issue was with regard to distribution of seats on prorata basis between the students of the schools affiliated to Gujarat State Board and the schools affiliated to other Boards. However, all the schools are situated in the territorial limits of Page 40 of 42 HC-NIC Page 40 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT the state of Gujarat. Thus, the reliance placed on the said decision is misconceived.
16.1 At this stage, it is also required to be noted that the Division Bench of this Court in the case of Visakha D/o Mahendra Patel(supra) and Sheetal Yeshwantkumar Parmar(supra), has considered the decision rendered by the Hon'ble Supreme Court in Pradeep Jain, Kumari C Ghosh and other decisions of the Hon'ble Supreme Court which are referred in the said judgment. It is further required to be noted that learned advocate Mr.Shelat is not in a position to point out that aforesaid two decisions rendered by the Division Bench of this Court are reversed by the Hon'ble Supreme Court. Thus, when the aforesaid two decisions rendered by the Division Bench of this Court have attained finality, we are of the view that the present petitions are required to be dismissed.
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 41 of 42HC-NIC Page 41 of 42 Created On Sat Aug 05 03:08:23 IST 2017 C/SCA/13877/2017 CAV JUDGMENT (R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Srilatha Page 42 of 42 HC-NIC Page 42 of 42 Created On Sat Aug 05 03:08:23 IST 2017