Karnataka High Court
Dr. S. Balaji Pai vs State Of Karnataka And Others on 16 October, 1989
Equivalent citations: AIR1990KANT246, 1989(3)KARLJ454, AIR 1990 KARNATAKA 246
ORDER
1. This writ petition is directed against the Government Notification issued under Annexure-H promulgating rules in amendment to the Karnataka Entrance Test for Admission to Post-Graduate Degree and Diploma (Medical and Dental) Courses Rules, 1987, issued under the Government Order dt. 9-10-1987, restricting admission to Post-Graduate Degree and Diploma (Medical and Dental) Courses to those candidates who, have obtained the M.B.B.S. or B.D.S. degree from any of the Universities established by law in Karnataka and for a declaration that clause (b) of R. 4 as amended under Annexure-H is unconstitutional and violative of Art. 14 of the Constitution.
2. The following are the material facts:--
The petitioner secured a degree in Medicine from the University of Poona. The petitioner, however, is a permanent resident of Bangalore having passed his I.C.S.E. examination from St. Josephs Boys High School, Bangalore, obtaining 'A' grade. The petitioner was selected on merit basis for a scholarship awarded by the National Council of Education, Research and Training and after completing the higher secondary education, he completed P.U.C. course from St. Josephs College securing a I Class in the P.U.C. examination. Thereafter, he appeared for All India Entrance Examination for the purpose of joining medical course and he was successful in obtaining a seat in the Armed Forces Medical College at Poona. The petitioner had also appeared for Entrance Examination conducted by St. Josephs Medical College, Bangalore. He had secured a seat at Bellary Medical College on the basis of the marks obtained by him in P.U.C. IInd year examination and he was given option to join either St. John's Medical College or Bellary Medical College by respondent-2. As things would have it, the petitioner preferred to join Armed Forces Medical College at Poona and completed M.B.B.S. course in the year 1987. The petitioner got himself registered under the Maharashtra Medical Council and after completion of internship he subsequently got himself registered under the Karnataka Medical Council. The fact that he is a domicile of Karnataka State is not disputed.
3. On completion of M.B.B.S. degree course at Poona, the petitioner applied for admission to Post-Graduate Degree and Diploma Courses in Medicine and Dental Colleges which are governed by the rules called the Karnataka Conduct of Entrance Test for Admission to the Post-Graduate Degree and Diploma (Medical and Dental) Courses Rules, 1987, which came into force with effect from 16-10-1987. According to R. 4 of the said Rules before amendment, a student was eligible to appear for the entrance test provided he was a citizen of India and had obtained M.B.B.S. or B.D.S. degree of any University established by law without any territorial barrier, but he should have completed compulsory rotatory House Surgeon-ship or Internship on or before the last date fixed for receipt of application for the entrance test. It is stated that the petitioner fully satisfied the eligibility conditions for admission to the Post-Graduate course. This was so under the unamended rule.
4. Thereafter, the petitioner applied for Entrance Test for Post-Graduate Course and the entrance examinations scheduled to be held on 24-12-1988 came to be postponed indefinitely. It is at this relevant point of time, the rules came to be amended with effect from 27-12-1988 and under the amended Rules, examinations were held on 15-1-1989. The petitioner had been issued an Admission Card for the said examination. Significantly enough, R. 4 of the aforesaid Rules came to be amended for the first time on 24-11-1988 with the omission of sub-rule (5) of R. 4. The second amendment came to be effected on 27-12-1988 amending Cl. (b) of R. 4. The amended rule runs as follows :--
"(b) he has obtained the M.B.B.S. or B.D.S. degree from any of the Universities established by law in Karnataka."
Two lists were published after the petitioner appeared for entrance examination held on 15-1-1989. The results were published on 29-1-1989 and on 15-2-1989. The petitioner's name was not found in the lists of candidates securing admission. Hence, the petitioner is aggrieved.
5. It is contended by the learned Counsel appearing for the petitioner that the amended Cl. (b) of R. 4 of the Rules insofar as it totally excludes the students who have taken M.B.B.S. degrees from Universities outside the State of Karnataka for selection to Post-Graduate Course, is unconstitutional and is liable to be struck down. Secondly, it is submitted that the action of-the respondents in not selecting the petitioner for admission to the Post-Graduate course in Medicine on the basis of the impugned rule is not only arbitrary but also violative of Art. 14 of the Constitution.
6. The point for consideration is whether the non-selection of the petitioner to a Post-Graduate Course in Medicine, in the facts and circumstances of the case, based on the provisions of R. 4(b) of the Rules cannot be sustained for the reason that R. 4(b) as amended on 27-12-1988 offends Art. 14 of the Constitution.
7. A similar question has been examined and considered by the Supreme Court in substance in the case of Pradeep Jain v. Union of India, . The relevant portion of the ruling extracted reads thus :--
"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 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 MBBS 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 seals 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 MBBS 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."
(Underlining by me)
8. In Fazal Ghafoor v. Union of India, , it was held that for admission to Post M.B.B.S. courses in super specialities, there should really be no reservation and this is so in the general interest of the country and for improving the standard of higher education and thereby improving the quality of available medical services to the people of India In the said decision, reliance is placed on the ruling of the Supreme Court in .
9. The rule in question does not disclose that the bar imposed is qualified either by a specified quota or percentage. In other words, it may be said that a total bar is imposed totally excluding the candidates who have secured a M.B.B.S. degree from any University out-side the State of Karnataka. It is an instance of total prohibition and the doors are open only to M.B.B.S. graduates of any of the Universities of the State of Karnataka only. The decisions aforesaid affirm the legal position that there cannot be a bar based on institutional preference. The consideration ought to be on an All India basis oblivious of territorial barrier or institutional preference. Even if a reservation is made, it is made clear in Pradeep Jain's case that there shall be no reservation at all even in so far as super specialities such as neuro-surgery and cardiology are concerned.
10. In the instant case, the admission to the Post Graduate course in Medicine is not denied to the petitioner for the reason that a certain percentage of the seats is reserved for a certain category and, therefore, the petitioner is not eligible for admission. The rule does not make any distinction whatsoever and it refers to admissions to be made solely on the basis of institutional preference. I, therefore, have no hesitation in holding that the denial of admission of the petitioner to the Post Gradudate course in Medicine is unsustainable. At the same time, I hold that R. 4(b) of the Rules is violative of Art. 14 of the Consfitution and is, therefore, discriminatory and unconstitutional.
11. In the result, for the foregoing reasons, I pass the following order :--
(i) The writ petition is allowed;
(ii) R. 4(b) of the Karnataka Entrance Test for Admission to Post Graduate Degree and Diploma (Medical and Dental) Courses Ruies, 1987, as amended under Anhexure-H is hereby declared unconstitutional and viola-tive of Art. 14 of the Constitution;
(iii) The respondents are directed to consider the case of the petitioner for admission to the Post Graduate Course for the subjects applied for on merits for the academic year 1989-90 within thirty days from the date of receipt of a copy of this order;
12. A copy of this order shall be communicated to the respondents forthwith.
13. Petition allowed.