Chattisgarh High Court
Dr. Rajendra Kumar Choudhary vs State Of Chhattisgarh 34 Wa/169/2019 ... on 17 May, 2019
Author: Rajani Dubey
Bench: Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP(C) No. 1338 of 2019
1. Dr. Rajendra Kumar Choudhary, S/o Shri Mahavir Choudhary,
aged about 31 years, R/o Room No.-21, Junior Resident Block,
CIMS Boys Hostel, Bilaspur (CG)
2. Dr. Neel Madhav Gavel, S/o Shri N.L. Gavel, aged about 27
years, R/o Samta Colony, Amar Gas Godown, Magarpara,
Bilaspur (C.G.)
---- Petitioners
Versus
1. State of Chhattisgarh, through the Secretary, Department of
Health and Family Welfare, Mahanadi Bhawan, New Mantralaya,
New Raipur, District Raipur (C.G.)
2. The Director, Medical Education, New Raipur (C.G.)
3. The Secretary, Department of Law and Legislative Affairs,
Mahanadi Bhawan, New Mantralaya, New Raipur, District
Raipur.
4. Dr. Pushpendra Singh Kanwar, S/o Bhuwan Lal Kanwar, R/o
Madan Road, Post and Tehsil Pali, District Korba, Chhattisgarh.
5. Dr. Shashank Gupta S/o Ashok Kumar Gupta, R/o D-1, Archana
Vihar, Nehru Nagar, District Bilaspur, Chhattisgarh.
---- Respondents
For Petitioners : Shri Rahul Tamaskar and
Ms. Madhunisha Singh, Adv
For Respondent Nos.1 to 3/State : Ms. Fouzia Mirza, Addl.
A.G.
D.B. : Hon'ble Shri Justice Manindra Mohan Shrivastava &
Hon'ble Smt Justice Rajani Dubey
2
C.A.V. Order
17.05.2019
Per Manindra Mohan Shrivastava, J
01. The petitioners have preferred this petition assailing legality and constitutional validity of Rule 4(b) of Chhattisgarh Chikitsa Snatkottar Pravesh Niyam, 2018 (hereinafter referred to as " Admission Rule of 2018"). The challenge to the aforesaid provision is to the extent that in the eligibility criteria, the candidates have been made eligible for State quota seats of Post Graduate Medical Admissions only on the basis of their residence i.e. domicile in the State of Chhattisgarh on the ground that it is legally and constitutionally impermissible, in view of binding decisions of Supreme Court.
02. The petitioners, two in number, having completed their MBBS course from various Medical Colleges, desirous of taking admission in Post Graduate courses in Medical Colleges, appeared in National Qualifying Test., NEET-PG, 2019 conducted by National Board of Examination (for short 'NBE'). The examination was conducted on 6 th January, 2019 in which 701 candidates from the State of Chhattisgarh qualified in the examination including the petitioners. The State wise list published by NBE on 1st February, 2019 disclosed that even those students who have not done their MBBS from the State of Chhattisgarh have been extended benefit of State quota in Post Graduate courses in Medial Colleges of Chhattisgarh on the basis of their domicile. The inclusion of such candidates for the purpose of grant of admission to State quota Post Graduate seats in the Medical Colleges of the State 3 was based on the eligibility criteria as contained in Rule 4 (b), which provides that even those candidates who are resident of the State of Chhattisgarh, though, they may not have done their MBBS from any of the Medical Colleges situated in the State of Chhattisgarh, are eligible for admission against Post Graduate State quota seats only on the basis that they are domicile of the State of Chhattisgarh. It is this particular provision of eligibility based only on domicile which is under challenge in this petition.
03. Learned counsel for the petitioners argued that under regulatory prescription contained in Rule 9 A (2) of the Medical Council of India Regulation of the Post Graduate Medical Education Regulations, 2000, (hereinafter referred to as 'the Regulations, 2000'), framed by the Medical Council of India, 50 percent of the seats are reserved for all- India Quota and rest 50 percent are reserved for State quota. The reservation of seats on the basis of residence i.e. domicile is violative of Article 14 of the Constitution of India. It is argued that a rule providing eligibility only on the basis of domicile, in the matter of admission to Post Graduate courses, even in the State quota, has been consistently held to be impermissible and unconstitutional in plethora of decisions of the Supreme Court, yet while framing the rules for admission in the State of Chhattisgarh, now such a Rule in 2018, only on the basis of domicile, eligibility has been provided with the result that those candidates who are domicile of the State of Chhattisgarh, even if they have pursued their MBBS course in Medical Colleges situated outside the State of Chhattisgarh would now be entitled to compete for the Post Graduate seats of State quota in 4 Medical Colleges situated in the State of Chhattisgarh and, at the same time, also compete for admission to Post Graduate seats of State quota on the basis of institutional preference in the State where they have pursued and obtained MBBS degree. Thus, it is argued that by virtue of this Rule of eligibility based on domicile, such candidates would be getting the benefit in two States, one on the basis of institutional preference and another on the basis of domicile. In support of their submission, learned counsel for the petitioners placed reliance in the matter of Pradeep Jain v. Union of India 1, Magan Mehrotra v. University of Delhi 2, Nikhil Himthani v. State of Uttarakhand 3, as also decision of the High Court of Allahabad in Dr. Jitendra Gupta and Ors. v. State of U.P. and Anr. in Misc. Single No. 8616/2019 rendered on 01.04.2019, against which SLP has also been dismissed by the Supreme Court on 16.04.2019 in SLP (Civil) Diary No (s) 13833 of 2019.
04. On the other hand, learned counsel for the State, opposing reliefs sought in the petition, submitted that the prescription of eligibility criteria for admission to Post Graduate seats for State quota in Medical Colleges of the State is in accordance with law. It is argued that the State has framed rules relating to admissions in exercise of powers conferred under Section 3 read with section 4 of the Chhattisgarh Medical Colleges Post Graduate Course Entrance Act, 2002. Prescription of eligibility condition and criteria are within the domain of the State rule making power conferred under State legislation and, 1 (1984) 3 SCC 654 2 (2003) 11 SCC 186 3 (2013) 10 SCC 237 5 therefore, cannot be said to be dehors. The provision with regard to eligibility based on domicile and/or institutional preference could be invalidated only if it is demonstrated that the same is arbitrary and violative of Article 14 of Constitution of India. The basis and rationale behind providing eligibility on the basis of domicile is that the meritorious students of the State of Chhattisgarh who have secured higher marks and have taken admission in other States ought not to be deprived of taking admissions in Post Graduate courses in the State quota in the State of Chhattisgarh. This eligibility criteria based on domicile only afford and enhance opportunity of competing to residents of State of Chhattisgarh in the matter of competition for admission to Post Graduate courses. It is also submitted that the students from different Medical Colleges from different States are treated equally, it would amount to treating unequals as equal and thus would be violative of Article 14 of the Constitution of India. The eligibility prescription under the Rule is essentially a matter of policy for admission against Post Graduate seats of State quota in Medical Colleges of the State. It has also been added that considering the level of inadequate development and scarcity of Doctors to provide services in the State of Chhattisgarh, it was considered essential to ensure that admissions in Post Graduate course in the State quota also becomes available to the domicile of the State of Chhattisgarh irrespective of whether or not they have pursued their MBBS courses within the State. The rule has been framed with the object that the local candidates will stay back in their native State to serve its people and, therefore, the classification is based on an intelligible differentia 6 having reasonable nexus with the object sought to be achieved. Such reservation has been held to be constitutionally permissible by the Supreme Court in its decision in the matter of Saurabh Chaudri and Ors v. Union of India and Ors4.
05. In exercise of power conferred under Section 3 read with section 4 of Chhattisgarh Rajya ke Chhattisgarh Chikitsa Mahavidyalayon ke Snatkottar Pathyakram Me Pravesh Adhiniyam, 2002 (hereinafter referred to as PG 'Admission Act of 2002'), the State has framed rules regulating admissions to Post Graduate courses against all seats in the State Medical Colleges as also Private Medical Colleges, published in the Official Gazette (extra ordinary) on 13 th March, 2018, known as Chhattisgarh Chikitsa Snatkottar Pravesh Niyam, 2018 (PG Admission Rules of 2018). Rule 4 lays down eligibility criteria which candidate is required to fulfill for admission to Post Graduate courses in the Medical Colleges of the State. The Rule 4 reads as under:-
4- ik=rk % dsoy mu vH;fFkZ;ksa ¼lsokjr vH;fFkZ;ksa lfgr½ dks gh] izos'k gsrq ik=rk gksxh] tksa & ¼d½ Hkkjr dk ukxfjd gks ( ¼[k½ NRrhlx<+ jkT; dk okLrfod fuoklh gks ¼dsoy fu;fer lsokjr vH;FkhZ dks NksMdj½ ¼ifjf'k"V & ,d½ ds vuqlkj ( vFkok vH;FkhZ ftlus NRrhlx< esa fLFkr ekU;rk izkIr fpfdRlk egkfo|ky; ls ,echch,l fMxzh izkIr dh gksA ¼x½ ftlus ijh{kk ,tsalh }kjk vk;ksftr izos'k ijh{kk ds ?kksf"kr ifj.kke esa] vukjf{kr Js.kh ds fy, U;wure 50 ilsZaVkby vad] vkjf{kr Js.kh ds fy;s U;wure 40 ilsZaVkby vad rFkk vukjf{kr Js.kh ds 'kkjhfjd #i ls fu%'kDr laoxZ ds fy, 45 ilsaZVkbZ vad izkIr fd;s gksaA 4 (2003) 11 SCC 146 7 vFkok mDr 'kS{kf.kd lrz gsrq Hkkjrh; vk;qZfoKku ifj"kn ,oa dsUnz ljdkj }kjk lacaf/kr Js.kh gsrq fu/kkZfjr U;wure vad vftZr fd;s gks rFkk U;wure vgZdkjh vadksa esa fdlh Hkh izdkj dh f'[email protected] (rounding off) fd;k tkuk] Lohdk;Z ugha gksaxs A ¼?k½ fdlh Hkh vH;FkhZ ¼lsokjr lfgr½ ftlus iwoZ esa vf[ky Hkkjrh;@jkT; dksVs ls izos'k mijkUr lhV dk ifjR;kx fd;k gksA vFkok ;fn laLFkk }kjk mDr vH;FkhZ dks fu"dkflr fd;k x;k gks rks mls lhV ifjR;kx@fu"dklu frfFk ls] ;FkkfLFkfr] fMxzh gsrq vkxkeh rhu o"kZ rFkk fMIyksek gsrq vkxkeh nks o"kZ ds fy, jkT; esa LukrdksRrj ikB~;dze esa izos'k dh ikrzrk ugha gksxhA ¼³½ os vH;kFkhZ] ftUgksaus LukrdksRrj fMxzh@ fMIyksek ikB~;dze iw.kZ dj fy;k gS] mUgsa muds }kjk iw.kZ fd;s x;s ikB~;dze ds i'pkr ikB~;dze iw.kZ djus ds fnukad ls dze'k% vkxkeh rhu@ nks o"kZ rd jkT; esa LukrdksRrj ikB~;dze esa izos'k dh ikrzrk ugha gksxhA ¼p½ ,sls vH;kFkh]Z ftudk p;u vf[ky Hkkjrh; dksVs ls jkT;
ds LukrdksRrj ikB~;dze esa gqwvk gks rFkk jkT; dksVs gsrq vk;ksftr dkmaflfyax }kjk Hkh mls lhV vkcafVr gksus dh fLFkfr esa mls dsoy ,d gh lhV ij izos'k ysus dh ikrzrk gksxhA jkT; dksVs ls izos'k ysus dh fLFkfr esa] vf[ky Hkkjrh; dksVs dh lhV dk ifjR;kx djus ds mijkUr gh] vkcaVu ds ikrz gksaxs ,oa izos'k ys ldsaxsaA Vhi & vH;FkhZ }kjk jkT; varxZr ,echch,l ikB~;dze iw.kZ djus ds i'pkr~ vfuok;Z 'kkldh; lsok gsrq fu"ikfnr ca/kirz esa mfYyf[kr vof/k iw.kZ gksus@ u gksus dh fLFkfr esa] NRrhlx< 'kklu ds yksd LokLF; ,oa ifjokj dY;k.k foHkkx ds vk;qDr ls vukifRr izek.kirz izLrqr djuk gksxk] rHkh os LukdksRrj ikB~;dze esa izos'k gsrq ikrz gksaxs rFkk ca/kirz ds v/khu dh xbZ 'kkldh; lsok dh vof/k] cksul x.kuk gsrq ekU; ugha gksxh A
06. From perusal of the aforesaid rules, it is revealed that amongst 8 various eligibility criteria, clause 'Kha' provides that a candidate would be eligible if he is domicile of the State of Chhattisgarh or if he has obtained MBBS degree from any of the recognised Medical Colleges situated in the State of Chhattisgarh. It is the first prescription of eligibility that only by virtue of domicile a candidate would be eligible for admission to Post Graduate courses in the Medical Colleges of the State, which is under challenge in this petition.
07. The issue as to whether reservation of seats only on the basis of residence is constitutionally permissible, was considered by Their Lordships in Supreme Court in several decisions. One of the earliest decision in the case of Pradeep Jain (supra) authoritatively pronounced that so far as admission to Post Graduate courses are concerned, it would be eminently desirable not to provide any reservation based on residence requirement within the State or on institutional preference but to some extent of certain percentage of seats may be reserved on the basis of institutional preference. It was held thus :-
"We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD 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 be in the present circumstances, be 9 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 seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the 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."
"23. What we have said about in regard to admissions to the MBBS and post-graduate courses must apply equally in relation to admissions to the BDS and MDS courses. So far as admissions to the BDS and MDS courses are concerned, it will be the Indian Dental Council which is the statutory body of dental practitioners, which will have to carry out the directions given by us to the Indian Medical Council in regard to admissions to MBBS and post-graduate courses. The directions given by us to the Indian Medical Council may therefore be read as applicable mutatis mutandis to the Indian Dental Council so far as admissions to BDS and MDS courses are concerned."
08. The aforesaid aspect of permissibility of providing reservation based solely on domicile again came up for consideration before the Supreme Court in a subsequent decision in the case of Magan (supra). Referring to the earlier decision in the case of Pradeep Jain 10 (supra) and after having noticed discordant note struck in the case of Dr. Parag Gupta v. University of Delhi and Ors. 5, held that the view taken in Parag Gupta (supra) was contrary to the view taken by two judges bench in Parag Gupta was contrary to the judgment of the three judges bench in Pradeep Jain (supra). It was held as below:-
"8. Be it stated that in that particular case the court was in fact not required to examine the issue that arose in Pradeep Jain2 or Parag Gupta1 cases and answered in those two cases. A bare look at the judgment of the three-judge Bench in Pradeep Jain case and two-Judge Bench in Parag Gupta case in relation to the question of preference in the postgraduate course, it cannot but be held that Parag Gupta case took a different view by upholding the residential preference, in essence, which was contrary to the judgment of the three-Judge Bench in Pradeep Jain case. Independently, on examining the issue of preference, we are also of the considered opinion that the decision rendered by this Court in Pradeep Jain case had taken the correct criterion into consideration and we therefore, agree with the principles evolved and the ratio given in Pradeep Jain case so far as it relates to admission into the postgraduate courses and the question of institutional preference to be given to those who had studied their undergraduate courses in the very institution as against the 15% quota on all-India basis. In this view of the matter, the impugned Bulletin of Information issued by Delhi University in relation to the postdoctoral (DM/MCh) postgraduate degree must be held to be contrary to the direction of this Court in Pradeep Jain case and the same is accordingly quashed. However, this order shall be made effective from the next academic sessions.
09. If it is, thus, seen that the law laid down in the case of Pradeep 5 (2000) 5 SCC 684 11 Jain (supra) was reaffirmed in the case of Magan (supra) which was again three judge bench.
10. The aforesaid settled legal position was again reiterated and reaffirmed by the Supreme Court in its later decision in the case of Nikhil (supra) and a similar rule of eligibility criteria based on domicile of the State of Uttarakhand was challenged by filing a petition under Article 32 of the Constitution of India before the Supreme Court raising grievance that such a rule of eligibility based only on domicile violated the fundamental right of equality in the matter of admission in Post Graduate courses in the State quota in the Medical Colleges of the State of Uttarakhand. The relevant rule relating to eligibility criteria, as contained in the Rules for Admission to Post Graduate Medical and Dental Courses in the State of Uttarakhand provided as below:-
" Eligibility criteria The counselling for admission shall be open to such candidates who:
1. Have passed the MBBS/BDS examination from Uttarakhand viz. Government Medical College, Haldwani, Shri Guru Ram Rai Institute of Medical Sciences, Patel Nagar, Dehradun, Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun, Uttaranchal Dental College, Maajri Grant, Dehradun & Seema Dental College, Rishikesh and were admitted through competitive examination (Uttarakhand State PMT) and not through NRI/management/institute quota.
2. Are domicile of Uttarakhand and have passed MBBS/BDS examination from medical/dental colleges of other States, recognised by MCI/DCI, and were admitted through 15% all-India quota (allotted by Government of 12 India).
3. Are domicile of Uttarakhand and have passed MBBS/BDS examination from medical/dental colleges of other States in India, recognised by MCI/DCI, and were admitted through Pre-Medical Entrance Test conducted by the State Government concerned.
4. Have completed Compulsory Rotatory Internship Training on or before 31-3-2013.
5. The eligible candidates who get selected through NEET-PG2013/NEET (MDS)-2013 will be given admission on available seats in postgraduate courses by Counselling Board according to their rank in State merit list, made available by NBE/MCI/DCI AIIMS and the seats available at that time.
6. Having name in the state merit list of eligible candidates provided by MCI/DCI/NBE/AIIMS will not be the right of the candidate for getting PG seats unless he/she fulfils all the eligibility criteria regarding domicile, reservation policy, provisions of bond, etc. mentioned in the information bulletin and/or amendments made thereafter till the time of counselling."
11. Clause 2 of the eligibility criteria made similar provision, as is contained in the rule impugned before us that counselling for admissions shall be opened to those who are domicile of Uttarakhand and have passed MBBS/BDS examination from Medical/dental colleges of other States, recognised by MCI/DCI, and were admitted through 50 percent of All India quota (allotted by Government of India).
12. Relying upon constitution bench judgment in the case of Saurabh (supra), it was held that giving institutional preference is a matter of State policy which can be invalidated only in the event of it 13 being violative of Article 14 of the Constitution of India. The rule of equality and merit being the most important criteria particularly in the higher level of education like Post Graduate Medical Courses was expounded, taking into consideration the earlier decisions in the case 6 of Dr. Jagadish Saran and Ors. V. Union of India and Pradeep Jain (supra), as below:-
" 12. We are concerned with three medical colleges, two being affiliated to, and one being maintained by, the Delhi University. Together they turn out annually around 400 medical graduates. These graduates get house jobs in the local hospitals and qualify themselves for post-graduate courses. The University has many post-graduate degree and diploma courses but all of them put together come to only 250 seats. Naturally, the graduates from the Delhi University cannot be accommodated fully or even in part for the post- graduate degree courses. If, out of the available seats for the post-graduate courses, a large slice is thrown up for open competition and students from all over the country swarm to take the entrance examination, the Delhi graduates' prospects become bleaker. The further case of the University is that there is a harsh handicap for these graduates in that they are not considered for admission in other university on account of various regional hurdles such as prescription of domicile, graduation in that very university, registration with the State Medical Council, service in the State Medical Service and the like. The necessary consequence of these road-blocks in the way of getting into post-graduate courses is dissatisfaction, furstration, fury and pressure for exclusive earmarking of all seats at the post-graduate level in the Delhi University for the Delhi graduates. Reservation elsewhere breeds reservation here. Good and evil become contagious and indivisible and eventually overpowering. The chain 6 (1980) 2 SCC 768 14 reaction had led to the principle of reservation being accepted by the Delhi University, first in moderate measure and next immoderately, maybe, because the pressure of militant Delhi graduates forced the University's hands or because government, which virtually forced this solution of 70% plus reservation, acted on the easy guide-lines. Nothing succeeds like excess. Reservation begins as a mild remedy but becomes, unless leashed, a Frankenstein's monster.
13. The rule for selection of candidates until April 1978 was as follows:
(a) For the first 52% seats of the total number of seats available, the selection was to be made on the basis of combined merit of Delhi University and other universities' medical graduates.
(b) The selection of the remaining 48% seats was to be made from the Delhi University graduates only.
By this method, approximately half the number of seats were reserved for the Delhi graduates. But having regard to the figures of seats and turn-out of graduates earlier mentioned, this did not meet the requirements of the aspirants for post- graduate degrees from Delhi. It must be remembered that Delhi is the seat of the elite, of high officials, of prosperous professionals, of rich businessmen, of important politicians and echelons of consequence and other men of money- power. Their sons and daughters, already fed on superior facilities and coached in special schools beyond the reach of most other students in the rest of the country, have an appetite and opportunity for excellence in education ahead of others and wish to lap up all the post-graduate seats, if possible. The cream must belong to the cream, generation to generation, may be a cynical social scientist's comment !
13. Relying upon the decision in the case of Pradeep Jain (supra) 15 that those institutional preference in certain percentage can be held to be constitutionally permissible, it was affirmatively pronounced that an eligibility criteria based on domicile, in the matter of admissions to Post Graduate courses would be violative of Article 14 of the Constitution of India, also noticing that the view taken by the two Judge Bench in Parag Gupta (supra) did not find the approval of the larger Bench of three Judges in Magan Mehrotra (supra), it was held thus :-
"16. We now come to Clauses 2 and 3 of the eligibility criteria in the Information Bulletin. Under Clauses 2 and 3, a domicile of Uttarakhand who has passed MBBS from a medical college of some other State having been admitted either through the 15% all-India quota or through the pre- medical test conducted by the State Government concerned has been made eligible for admission to a postgraduate medical course in the State quota. Obviously, a candidate who is not a domicile of Uttarakhand, State is not eligible for admission to the postgraduate course under Clauses 2 and 3 of the eligibility criteria. Preference, therefore, is given only on the basis of residence or domicile in the State of Uttarakhand under Clauses 2 and 3 of the eligibility criteria and such preference on the basis of residence or domicile within a State has been held to be violative of Article 14 of the Constitution in Pradeep Jain V. Union of India and Magan Mehrotra V. Union of India.
17. In fact, in Parag Gupta Vs. University of Delhi the facts were that Dr. Parag Gupta was born and brought up in Delhi but had studied the MBBS course in Tamil Nadu having been allotted to Tamil Nadu under the 15% all-India quota on the basis of his selection on all-India basis. He filed a writ petition praying that he should be permitted to participate in the entrance examination conducted by Delhi University for 16 admission to 75% seats reserved for candidates who have passed MBBS in the institutions in Delhi. His contention before the Court was that his home State is Delhi and he had gone out to the State of Tamil Nadu to pursue his studies on all-India quota and he should now be allowed to participate in the competition for the postgraduate seats reserved for the students passing MBBS from institution under Delhi University. Delhi University and the intervening students of different institutions under Delhi University who were competing for the institutional quota of Delhi University raised and objection to the aforesaid contention of Dr. Parag Gupta.
18. A two-Judge Bench of this Court allowed Dr. Parag Gupta to participate in the competitive examination for the institutional quota of Delhi University and rejected the objection of Delhi University and the intervening students in the following words: (Parag Gupta case, SCC p. 693, para
12) "12. The objection of the University and the intervening students is that such students will have an unfair advantage of competing in all-India quota plus home State quota plus institutional quota in that University where they studied. We fail to see any unfair advantage in this regard inasmuch as all students have to take common entrance test with reference to their home State and face stiff competition. The students in the home State if at all are put to disadvantage only to a small degree of taking competition with respect to very few students falling in that category of the petitioners.
On the other hand, inclusion of such students will make it broad-based as well thereby striking a balance. Thus, we think, if students of the home State are also allowed to participate in the entrance test, there will be uniformity all over the country and small disadvantage removed 17 with respect to a small section of the student community does not disturb the balance and the advantage derived achieves uniformity."
These reasons given by the two-Judge Bench of this Court in Parag Gupta v. University of Delhi did not find the approval of the larger Bench of three-Judge in Magan Mehrotra v. Union of India which held: (Magan Mehrotra case, SCC p. 190 para
8) "8. ... A bare look at the judgment of the three-
Judge Bench in Pradeep Jain case and two-Judge Bench in Parag gupta case in relation to the question of preference in the postgraduate course, it cannot but be held that Parag Gupta case took a different view by upholding the residential preference, in essence, which was contrary to the judgment of the three-Judge Bench in Pradeep Jain case."
19. Thus, it will be clear from what has been held by the three-Judge Bench of this Court in Magan Mehrotra v. Union of India that no preference can be given to the candidates on the basis of domicile to compete for the institutional quota of the State if such candidates have done their MBBS course in colleges outside the State in view of the decisions of this Court in Pradeep Jain v. Union of India. Hence, Clauses 2 and 3 of the eligibility criteria in the Information Bulletin are also violative of Article 14 of the Constitution.
14. From the aforesaid plethora of decisions of the Supreme Court which we have referred herein above, it is no longer res integra and now a settled legal position that, though, institutional preference could be given, reservation based by way of prescription of eligibility criteria only on the basis of domicile would definitely be violative of Article 14 of the Constitution of India.
18
15. Learned counsel for the State referring to some of the observations made by their Lordships in the Supreme Court in the case of Saurabh Chaudri (supra) submits that the reservation based on domicile would not always be unconstitutional and impermissible in law. For this purpose, reference has been made in para 29 and 31 of the aforesaid decision. The aforesaid contention does not merit acceptance in view of conclusions drawn in the aforesaid judgment, which is reproduced herein below :-
" 108. As regards the constitutional validity of institutional/regional/university wise reservation/preference, in view of this Court's emphasis on the need to strive for excellence which alone is in the national interest, it may not be possible to sustain its constitutional validity. However, the presently available decisional law is in support of institutional preference to the extent of 50% of the total available seats in the educational institutions concerned.
Conclusions (1) In the case of Central Educational institutions and other institutions of excellence in the country the judicial thinking has veered around the dominant idea of national interest with its limiting effect on the constitutional prescription of reservations. The result is that in the case of these institutions the scope for reservations is minimal.
(2) As regards the feasibility of constitutional reservations at the level of superspecialities, the position is that the judiciary has adopted the dominant norm i.e. "the higher the level of the speciality the lesser the role of reservation". At the level of superspecialities the rule of "equal chance for equal marks" dominates. This view equally applies to all superspeciality institutions.
(3) As regards the scope of reservation of seats in 19 educational institutions affiliated and recognised by State universities, the constitutional prescription of reservation of 50% of the available seats has to be respected and enforced.
(4) The institutional preference should be limited to 50% and the rest being left for open competition based purely on merits on an all-India basis.
16. In view of aforesaid consideration, the only inescapable conclusion would be that Rule 4 '[k' to the extent it provides "NRrhlx<+ jkT; dk okLrfod fuoklh gks ¼dsoy fu;fer lsokjr vH;FkhZ dks NksMdj½ ¼ifjf'k"V & ,d½ ds vuqlkj" is unconstitutional and violative of Article 14 of the Constitution of India. Accordingly, it is held unconstitutional and violative of Article 14 of the Constitution of India and, therefore, inoperative in law.
17. This declaration would mean that the resident/domicile of State of Chhattisgarh who have pursued and obtained MBBS degree in the Medical Colleges situated outside the State would not be eligible only on the basis of domicile, to compete for Post Graduate seats in the State quota in the Medical Colleges of the State of Chhattisgarh.
18. Though, our conclusion is that the rule of eligibility based on domicile is constitutionally impermissible, it has been brought to our notice that in adherence to the strict time schedule for holding of examination, declaration of result, rounds of counselling, the counselling by now is over and the admissions have also been made and 18th May, 2019 being the last date for granting admission. Learned counsel for the Medical Council of India and respondents have also brought to the notice of this Court that in compliance of the direction issued by the Hon'ble Supreme Court of India in WP(C) No. 76/2015 in 20 I.A. 7 & 8 (Ashish Ranjan & Ors. V. Union of India & Ors.) dated 18.01.2016, Medical Council of India has notified in Official Gazette dated 20.02.2018 the aforesaid schedule of examination, counselling and admissions. Relevant notification has also been filed as Annexure R-1.
In our considered opinion, at this stage, directing to respondents to restart the process of counselling and admissions would amount to disturbing the process of admission which has already been accomplished and that now no time is left to direct fresh round of counselling by preparation of a fresh merit list excluding those who otherwise were eligible and granted admission under the impugned rule of eligibility.
19. Our decision would, therefore, have perspective application without disturbing merit list, counselling and admissions already made. Though, we have declared the impugned rule as violative of Article 14 of the Constitution of India, no direction, at this stage, can be issued for consideration of petitioner's case for admission as prayed for by them in this petition.
20. The petition is accordingly allowed in part, in the manner and to the extent held as above. No order as to costs.
Sd/- Sd/-
(Manindra Mohan Shrivastava) (Rajani Dubey)
Judge Judge
vijay