Gujarat High Court
Shivam H Thakkar S/O Harshadbhai ... vs State Of Gujarat on 7 May, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/4391/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4391 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4390 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4393 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4395 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
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 ?
========================================================== KEYUR KUMAR S/O BHAVIKBHAI RAWAL Versus STATE OF GUJARAT ========================================================== Appearance in Special Civil Application Nos.4391, 4393 and 4395 of 2018:
MR PARITOSH GUPTA, for the PETITIONERS MS MANISHA LAVKUMAR, GP WITH MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1 and 2 MRS VD NANAVATI(1206) for the RESPONDENT(s) No. 3 MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 4 UNSERVED WANT OF TIM(31) for the RESPONDENT(s) No. 5,6 Page 1 of 24 C/SCA/4391/2018 CAV JUDGMENT Appearance in Special Civil Application No.4390 of 2018:
MR PR THAKKAR(899) for the PETITIONER(s) No. 1,2,3,4,5,6,7,8 for the RESPONDENT(s) No. 2 MS MANISHA LAVKUMAR, GP WITH MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1 and 2 MRS VD NANAVATI(1206) for the RESPONDENT(s) No. 3 MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 4 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 07/05/2018 COMMON CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. In view of the common questions of law and facts involved in these petitions, as such, they are heard together and disposed of by this common judgment.
2. For the purpose of disposal, we draw the facts from Special Civil Application NO.4391 of 2018.
3. The petitioner is a graduate completed his Bachelor of Medicine and Bachelor of Surgery Page 2 of 24 C/SCA/4391/2018 CAV JUDGMENT (M.B.B.S.), from the 4th respondent Deemed University, situated in Vadodara in Gujarat.
Admissions to postgraduate medical educational courses, are governed by the Gujarat Professional PostGraduate Medical Educational Courses (Regulation of Admission) Rules, 2018, framed in exercise of powers under section 20 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007. The petitioner has challenged the vires of Rule 4(2) of the Rules, referred above, by virtue of which, the petitioner is excluded from consideration for admission in PostGraduate medical courses in the State quota.
4. By virtue of the amendments made to the regulations framed under the Medical Council of India Act, 1956, the 3rd respondent Medical Council of India has introduced a common entrance examination i.e. "National Eligibility cumEntrance Test(NEETPG)", which is the common Page 3 of 24 C/SCA/4391/2018 CAV JUDGMENT window eligibilitycumranking examination prescribed for admissions to various Post Graduate Courses. By virtue of the said common entrance examination, there is no other entrance examination, either at the State or the institutional level, held for entry into M.D., M.S., P.G. Diploma Courses. The petitioner has appeared in the said NEETPG 2018 examination, which was held on 7.1.2018 to secure admission in professional colleges/institutions providing PostGraduate Courses. The results of the NEET PG were declared on 23.1.2018. It is the case of the petitioner that, he secured 432 marks out of the total of 1200 marks in NEET.
5. All the available seats in the Post Graduate medical courses, are to be filed as per the merit list prepared on the basis of their ranking in their NEETPG examination. 50% of the seats are to be filled in by All India Quota and the remaining 50% are retained by the State of Gujarat. The Admission Committee constituted has Page 4 of 24 C/SCA/4391/2018 CAV JUDGMENT to fill up the seats as per the rules framed by the State by applying reservation policies, etc.
6. In the impugned Rules, the Rule 2(k) defines "University" as under:
""University" means a university or private university established under any law of the Government of Gujarat, situated in State of Gujarat and imparting professional post graduate medical educational courses leading to the award of a degree or diploma approved or recognized by competent statutory authority."
7. The Rule 3 of the Rules deals with the seats available for admission. Eligibility criteria is notified under Rule 4. The Rule 4 of the Rules reads as under:
"4. Eligibility for Admissions.
1. A candidate shall be an Indian Citizen:
Provided that a candidate who desires admission on NonResident Indian seats shall be a NonResident Indian, or a child or ward of the NonResident Indian and Page 5 of 24 C/SCA/4391/2018 CAV JUDGMENT completed his MBBS/BDS or equivalent course from medical institution with in or out side India and qualify in NEETPG as per the criteria laid down by the competent authority.
2. The candidate must have completed the recognized MBBS or BDS course from University established under any law of Government of Gujarat and situated in State of Gujarat and completed compulsory rotating internship on or before 3lst March of academic year of admission;
3. A candidate shall have to appear in NEETPG Entrance Examination conducted for the year for which admissions are being held in respective year for admission to Postgraduate Medical Courses and qualify in NEETPG as per criteria laid down by the competent authority;
4. 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 might have completed the course in which he has secured admission."
8. The Rule 5 of the Rules deals with reservation of seats. The relevant SubRules(1) and (2) of Rule 5 read as under:
"5. Reservation of Seats. (A) For Government Seats, Page 6 of 24 C/SCA/4391/2018 CAV JUDGMENT (1) Fifty per cent. (50%) of available seats for admissions in each Government Medical and Dental College shall be reserved for the candidates of All India Quota who are allotted for admission by the Director General of Health Services, Government of India, New Delhi.
(2) After deduction of the seats referred to in subrule (1), the remaining available seats in Government Colleges, shall be distributed as 25% Institutional Preference Seats and 75% All Gujarat Students Quota Seats and in Government Seats of SFI Colleges also 25% Institutional Preference Seats and 75% All Gujarat Students Quota Seats. The following reservation shall apply to both the Institutional Preference and All Gujarat Quota Seats and the seats reserved only for the candidate who are origin of Gujarat and falling under the following categories, namely:
(a) Scheduled Castes : 7%
(b) Scheduled Tribes : 15%
(c) Socially and Educationally Backward Classes : 27% Page 7 of 24 C/SCA/4391/2018 CAV JUDGMENT For Allocation of seats (SC/ST/SEBC/OPEN and PH), under different categories, a roster system as notified by the State Government shall be followed. The roster register shall be maintained at State level for all the Courses and categories and used for allocation of seats as per roster register.
Explanation The reservation of the seats shall be for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes recognized as such in the State of Gujarat and for not those who have migrated from other States."
9. Though the 4th respondent institute is situated in the State of Gujarat, as much as it is not a University established under any law of Government of Gujarat, the petitioner is excluded from consideration in the State of Gujarat.
10. It is the case of the petitioner that, the 4th respondent University is undoubtedly Page 8 of 24 C/SCA/4391/2018 CAV JUDGMENT situated in the State of Gujarat and offers MBBS degree recognized by the 3rd respondent Medical Council of India and, merely because the said University is a Deemed University established under the University Grants Commission Act, students of such University are arbitrarily excluded from the purview of the State Quota for admission into the professional medical colleges situated in the State of Gujarat. It is the case of the petitioner that, no rationale can be drawn for the purpose of justifying exclusion of candidates holding degrees from Deemed University, situated in the State of Gujarat. The said exclusion clearly suffers from the vice of arbitrariness and is in violation of rights guaranteed under Article 14 of the Constitution of India. It is the case of the petitioner that, though the 4th respondent College is a Deemed College, as much as it is situated within the State of Gujarat, the students of such College cannot be denied entry to the Post Graduate medical admissions in the State Quota. Page 9 of 24 C/SCA/4391/2018 CAV JUDGMENT It is stated in the petition that, the 4th respondent University, prior to its declaration as a Deemed University, was affiliated to the State University and it was, upon recognition as a deserving institute providing high quality education, granted recognition as a Deemed University.
11. On behalf of the respondent Nos.1 and 2, affidavitinreply is filed by the Member Secretary of the Admission Committee for Professional Courses. In the reply affidavit, while denying the various allegations made by the petitioner, by referring to various provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, reference is made to the order dated 09.05.2017 passed in WP (C) No.267 of 2017 by the Hon'ble Supreme Court in the case of DarusSlam Educational Trust and Ors. V/s MCI and Ors., wherein directions were issued to the effect Page 10 of 24 C/SCA/4391/2018 CAV JUDGMENT that the counseling of Deemed University is to be undertaken by the Director General of Health Services, Government of India, New Delhi. It is pleaded that, it is the settled proposition of law that, institutional preference in admissions to technical and medical institutions is to be regarded as constitutionally permissible. Reliance is placed on the judgment of the Hon'ble Supreme Court in the case of Pradeep Jain and Others Vs. Union of India and Others reported in (1984)3 Supreme Court Cases 654 and also the case of D.N. Chanchala Vs. State of Mysore & Ors. reported in (1971)2 SCC
293.
12. In the connected matter in Special Civil Application No.4395 of 2018, reply affidavit is filed on behalf of the 3rd respondent, Medical Council of India.
13. We have heard learned counsel, Mr. Paritosh Gupta for the petitioners in Special Page 11 of 24 C/SCA/4391/2018 CAV JUDGMENT Civil Application Nos.4391, 4393 and 4395 of 2018, learned counsel, Mr. P.R.Thakkar for the petitioner in Special Civil Application No.4390 of 2018, Ms. Manisha Lavkumar, learned Government Pleader appearing with Mr. K.M.Antani, learned Assistant Government Pleader for the respondent Nos.1 and 2, Ms.V.D.Nanavati, learned counsel for respondent No.3 and Mr. Mitul Shelat, learned counsel for respondent No.4.
14. It is contended by learned counsel, Mr. Paritosh Gupta that the impugned rule is contrary and illegal, as it excludes the graduates, who have graduated from Deemed Universities, from the eligibility criteria for PostGraduate medical admissions in the State of Gujarat. It is submitted that, merely because counseling for admissions to Deemed Universities is done by Director General of Health Services in All India Quota, same is no reason to exclude the graduates, who have graduated from the Page 12 of 24 C/SCA/4391/2018 CAV JUDGMENT institutes in the State of Gujarat, from the eligibility criteria for entry into Post Graduate medical admissions in the State of Gujarat. It is submitted that, the concept of institutional preference is wrongly being interpreted by the respondents, so as to exclude the students of Deemed Universities from the purview of the State Quota for the purpose of admissions in PostGraduate medical educational courses. It is submitted that, even for the current academic year, students from deemed Universities are allowed in other States. Whereas in the State of Gujarat, by virtue of the impugned rule, which is framed by misconstruing the directions of the Medical Council of India, the students from Deemed Universities are sought to be deprived of admission in the State Quota. It is submitted that, merely because counseling power is given to Director General of Health Services with regard to Deemed Universities, same is no ground to deny students from Deemed Universities for Page 13 of 24 C/SCA/4391/2018 CAV JUDGMENT seeking admission to PostGraduate medical courses in the State Quota. Such denial by virtue of the impugned rules is in violation of fundamental rights guaranteed under Article 14 of the Constitution of India.
15. On the other hand, Ms.Manisha Lavkumar, learned Government Pleader appearing for the State has submitted that, the eligibility criteria for admission to PostGraduate medical educational courses is as per the rules framed under Gujarat Professional PostGraduate Medical Educational Courses (Regulation of Admission) Rules, 2018. It is submitted that, all the Government colleges and colleges affiliated to Universities in the State constitute a different class, to permit such students in State Quota. It is submitted that, as Deemed Universities are having the characteristics of Central Universities, powers of counseling are given to Director General of Health Services, as per the directions of the Hon'ble Supreme Court of Page 14 of 24 C/SCA/4391/2018 CAV JUDGMENT India, as such, they are not eligible to seek admission in the State of Gujarat. She has relied on the judgments in the cases of Dr.Pradeep Jain and Others Vs. Union of India and Others reported in (1984)3 Supreme Court Cases 654, Saurabh Chaudri & Others Vs. Union of India & Others reported in (2003)11 SCC 146, Division Bench judgment of this Court in the case of Yatinkumar Jasubhai Patel Vs. State of Gujarat & Ors. reported in 2017(4) G.L.R. 2963 and judgment dated 1st May, 2015 in Letters Patent Appeal No.551 of 2013 of Delhi High Court.
16. Learned counsel, Ms. V.D.Nanavati appearing for respondent No.3Medical Council of India has submitted that, the impugned rules are not in conflict with the regulations framed by Medical Council of India under Medical Council of India Act, 1956. It is submitted that, it is open for the States to frame their own policies, for the purpose of regulating admissions, as per Page 15 of 24 C/SCA/4391/2018 CAV JUDGMENT the rules framed by the State, so far as State quote seats are concerned.
17. Mr. Mitul Shelat, the learned counsel appearing for the 4th respondent has supported the case of the petitioners by submitting that, there is no reason or justification to exclude the graduates of the 4th respondent University from the eligibility for admission to Post Graduate Medical Educational Courses from the State quota.
18. Having heard the learned counsels appearing for the parties, we have considered the material placed on record.
19. It is clear from the material placed on record that, out of the total available seats in PostGraduate medical courses, 50% are retained in the State Quota and 50% are in the All India Quota.
20. In the case of Dr.Pradeep Jain and Others Vs. Union of India and Others reported Page 16 of 24 C/SCA/4391/2018 CAV JUDGMENT in (1984)3 Supreme Court Cases 654, the Hon'ble Supreme Court has considered the matter relating to admission to medical colleges and reservation of seats for residents of States or students of the same University. In the aforesaid judgment, the Hon'ble Supreme Court has held that, having regard to the socioeconomic disparities and inequalities, certain percentage of seats can be permitted to be reserved, based on the residents or institutions in State. In the said judgment, it is held that the extent or limit of such reservation would depend on particular facts and circumstances. In the said judgment, for admission to PostGraduate medical courses, the Hon'ble Supreme Court has upheld 50% for institutional preference.
21. In the case of Saurabh Chaudri & Others Vs. Union of India & Others reported in (2003)11 SCC 146, the Hon'ble Supreme Court has considered the reservation by way of institutional preference in PostGraduate Page 17 of 24 C/SCA/4391/2018 CAV JUDGMENT medical courses and held that it should be confined to 50% of the seats.
22. In the Division Bench judgment of this Court in the case of Yatinkumar Jasubhai Patel Vs. State of Gujarat & Ors. reported in 2017(4) G.L.R. 2963, we have confirmed the rules, providing for institutional preference for candidates from Gujarat University even after introduction of NEET.
23. The issue, which crops up for consideration in this case, is altogether different from the concept of institutional preference. For admission to the PostGraduate medical admission courses, NEETPG was introduced, which is the sole and common entrance test for the purpose of preparing the merit lists for admissions to PostGraduate medical admission courses for the State Quota and All India Quota. All the available seats in Central Institutes will go to the pool of All Page 18 of 24 C/SCA/4391/2018 CAV JUDGMENT India Quota, whereas 50% of available seats from the States, Government Institutions, affiliated and grantinaid institutions will go to the All India Quota. In the seats available for the State Quota, there is also reservation for institutional preference. In the present case, it is to be noticed that the petitioner is a student graduated from a Deemed University, situated in the State of Gujarat. The impugned rules exclude the petitioner from consideration in the State Quota only on the ground that, he has not studied in any of the affiliated Universities established under State laws. Merely because Director General of Health Services is empowered for the counseling of the seats available in Deemed Universities, same is no ground to exclude the graduates, who have graduated in Deemed Universities in the State for the purpose of eligibility for admissions to PostGraduate medical courses in the State. Whether the impugned rule infringes upon the rights enshrined under Article 14 of the Page 19 of 24 C/SCA/4391/2018 CAV JUDGMENT Constitution of India or not can be looked into from another angle. It is to be noticed that, a student of State affiliated University, after completing course in MBBS, is eligible for 50% of the State Quota seats and also for All India Quota seats but, at the same time, a student, who studied MBBS Course from Deemed University, is eligible for All India Quota only but not for the State Quota seats. We are of the view that, there is a clear infraction of the rights of the petitioner guaranteed under Article 14 of the Constitution of India. Further, having regard to the objective for retention of 50% of the available seats for State Quota, there is no justification to deny admissions to PostGraduate medical courses, for passouts of medical courses from Deemed University, situated in Gujarat.
24. The judgment in the case of DarusSlam Educational Trust and Ors V/s MCI and Ors, has not dealt with the issue namely, whether a student of Deemed University situated in the Page 20 of 24 C/SCA/4391/2018 CAV JUDGMENT State is eligible for the State Quota or not. In the said judgment, the Hon'ble Supreme Court, while observing that common counseling for admission to All India Quota seats in Government Medical Colleges shall be conducted by Director General of Health Services, has held that such counseling shall include Deemed Universities as they have an all India character. It is difficult to accept the defense of the respondents that the students, who graduated from Deemed Universities in the State, are excluded from the purview of consideration as much as counseling power of such Universities is given to Director General of Health Services. Contribution of seats in the PostGraduation from Deemed Universities cannot be linked to eligibility of graduates to consider for admission in the State Quota seats. The learned counsel appearing for the petitioners has also placed on record the Information Brochure issued by the State Common Entrance Test Cell, Mumbai for NEETPG 2018 in the State of Maharashtra. In the rules of Page 21 of 24 C/SCA/4391/2018 CAV JUDGMENT Maharashtra, merely it is stated that students, who have passed final MBBS examination from the medical colleges situated in the State at Maharashtra are eligible for admission to Post Graduate medical educational courses. However, such medical colleges should have been affiliated to Maharashtra University of Health Association or Medical Colleges affiliated to Deemed University, as per University Grants Commission Act. From a perusal of the said rules, it is clear that, the students, who have graduated either from Deemed University or otherwise or from the colleges situated in the State of Maharashtra, are made eligible for admission to PostGraduate medical educational courses. The same will also support the case of the petitioner. Otherwise, if the impugned rules are allowed to stand, it excludes the students, who have graduated from Deemed University from the eligibility criteria for admission to Post Graduate medical courses, which is a clear infraction of equality guaranteed under Article Page 22 of 24 C/SCA/4391/2018 CAV JUDGMENT 14 of the Constitution of India.
25. Learned Government Pleader has relied on the judgment dated 1st May, 2015 in Letters Patent Appeal No.551 of 2013 of Delhi High Court. However, we are of the view that, having regard to the facts of the case on hand, the aforesaid judgment would not render any assistance in support of the case of respondents.
26. For the aforesaid reasons, we are of the view that the petitioner has made out a case for grant of relief as prayed for. Accordingly, Special Civil Application No.4391 of 2018 is allowed. The Rule 4(2) of the Gujarat Professional PostGraduate Medical Educational Courses (Regulation of Admission) Rules, 2018, to the extent it excludes the students, who have graduated their MBBS course from deemed university, situated within the State of Gujarat, for admission to PostGraduate Medical Educational Courses, is declared as illegal and Page 23 of 24 C/SCA/4391/2018 CAV JUDGMENT arbitrary. We direct the respondents to treat the petitioner as an eligible candidate to consider his claim for admission to Post Graduate Medical Educational Courses in the State Quota in unfilled seats, as per his merit secured in NEETPG 2018 for the academic year 201819, subject to fulfilling all other eligibility criteria.
27. Following the aforesaid judgment, Special Civil Application Nos.4390, 4393 and 4395 of 2018 are allowed with similar directions. No order as to costs. Consequently, IA No.1 of 2018 in Special Civil Application No.4395 of 2018 also stands disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) RADHAKRISHNAN K.V. Page 24 of 24