Bombay High Court
Sunil Vasnat Sathe And Anr. vs The Bombay Municipal Corporation And ... on 3 July, 1987
Equivalent citations: AIR 1987 BOMBAY 291
JUDGMENT Sugla, J.
1. The question involved in these petitions is whether andtowhat extent the rule of preference and/or State of registration to th epost graduate (supar specialities) courses in thethree Municipal Medical Colleges at Bombay is justified It is common ground that for all practical purpose post-granduate (super supcialities) courses are avaliable inth Stete pf Maharashtra inone Government Medical College andtheree Municipla Medical College and three MuncipalMedical Colleges at Bombay only. This question it is alsocommon ground has come up for consideration before the Supreme Court in a number of cases starting formthe case of state of Kerala v. T. P. Roshana, even earlier ot the last sofar being Dr,. Dinashkumar V. Motila Nehru Medical Colleges AIR 1986 Sc 1877. This court has also cosidered the question ina mumber of cases. Yet the parties have made their submissions at length of the fooring that the fact of the question involved in these petitinons is still res integra. They look us through different portions of some of the decions insuport of their respective contentions.
2. Broadly three stands were taken before us by theparties Sri Bhagalia thelearned counssel appearing for petitioners in Writ Petition No. 599 of 1987. Submitted that it was no quiet correct tosaythat thejudging the compartive merits of the students the Supreme Court had altogether discarded the rule of taking intoaccount themards obtained by the students in equivalent examination of different universities. Placing reliance of few of the passages formtheSupreme Court judgement in , he s tated that particularly where the students were form medical colleges within the state had the standard of education was by and large by some compartive merits could be judged on the basis of marks obtained and/or by holding regional or university examinations if All india Entrance Examination was not possible This decision court insubsequent decisionns adntherefore until such time the holding of All India Entrance Examination for registration to post grafue (super specialities ) courses was not possible, registration could and should be made on the above basis nad even by allocating seats available amongst different universities reasonbly.
Sri Gursahani the learved counsel appering for petitioners in Writ Petitioners Nos. 2529 and 2300 of 1986 on the other hand stated that the factual position at thematerial time I, e when regisrations to super specialities courses were being made for July. 1986 session the rule of reservation on the basis of institutional preference was bad having already been declared ot be soby the Supreme Court and the subseauent judgment whereby the operation of the said Judgment was stayed had not been pronounced . Further theoperation of earlier judgment was stayed bythe Suprme Court onaccouont of difficulties involed inholding all India Entrance Examination for admission to the prescribed percentage of open seats inM. B. B.S /b. D. S. and post granduate courses, It was pointed out that such a direction was not given for registration to super specilities courses. Therefore, the subsequent judgement was of no consequence so far as registration tosuper specialities courses was concerned. In short his submission was that registration to super specialities courses could nothave been done by Bombay Municipal Corporation colleges in July 1986 or even thereafter except on merits on All India basis.
Sri Anduharjina who appeared for Bombay Municipal Corporation colleges, stated that all the decisions given by the Supreme Court including thedecison in Dr. Pradeep jain V. union of India, not only to M. B. B. S./B. D. S. and post graduate courses but also to post graduate super specialities) courses. Therefore, the subsequent judegement of the Supreme Court in Dr. Dineshkumar's case whereby operation of the earlier judgment as regards filing of open seats on merit by holding All India entrance examintion was tayed until Jaunary, 1988 applied with equal force ot the post graduate 9super specilities) courses. The corrrect legal position according to him wast hat until Jaunary 1988 the rule of reservation on the basis of residernce of institutional prefence was and would be the valid basis for registration to M. B. B. S./ B. D. S. post graduate and the post graduate (supre specialities) courses.
3. It is ture that are obsercations in Para 15 of the Supreme Court judgement in Roshana's case in which suggest that even marks obtained inqulifying examination held by different uuiversities could be the basis for judging relative merits of the student. it is however, seen that in its subsequent judgement in the case of Dr. Dinesh Kumar , the Supreme Court has categorially andunequivocally held while dealing with the admission of M. B. B. S./ B. D. S. courses in Para 4 at P. 1063.
'....................... It would be wholly unjust to grant admission tothestudents by assessing their relative merits with reference tot he marks obtained by them ont at the same qualifying examinateion where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Government of Universities where the standard of judging would necessarily vary and not be the same That would indeed the blatantly violative of the concept of equality eonshrined in Art. 14 of the Constitution. We must, therefore, make it clear that no state Government or Univeristy or Medical College shallgrant admissionto students for the M. B. B,. S. course on the basis of comparison of the marks obtained by that at differentqualifying examination of reletive merits through anentrance examinationwhich would be open to all candidates throughtout the country.
While dealing the admission topost graduate courses in Para 6 at p. 1064;
"..................But unquestionably noadmssions canbe allowed tobemade on the basis of marks obtained at different M. b. B. S. examination held by different universities."
In theabove vies of the matter it is not possible toaccept Sri Bgagalia sumission that unti it was possible toheld All India Entrance Examination the relative merits of the students could be judged on the basis of marks obtained in M. B. B. S.examination held by different unversities Besidersqualifying examination for post graduate super specialities) courseis the post graduate degree and not gradute degree.Therefore, judginb realtive merits for reistration to post graduate (super specialities) courses on the basis of marks obtained in M. B. B. S. examination mereby becausse grades not marks are awared in post graduate degree examination could certianly be not acceppeted as a prope method at all. As regards the contention that in the meantime allocation of seats could be made unversitiwise we donot dinany santion for it inany decision cited at the Bar. On the countrau thedisapproved by Supreme Court in AIR 1979 Sc 75 (Para 18) of the likage of the division of seats with the university were regular student strength is a pointer that unvwesity wise allocation of seat is laos not proper.
We also donot agree with Sri Gursahani that Supreme Court had not given mandate to hold all India Entrance Examination for registration of (supra Specilities) courses or that thesubsequetn judgmetn of the supreme Court whereby the operation of the ealier judgment was stayed till January 1988 was not applicable to registration tosupar specialities courses Inthis context it is desirable to refer to Para 22 of the Superme Course judgment in Last sub-paragraph courses. The first and the last sentences of sub- paragraph read as under.
"We aretherefore of the view that sofar as admission topost graduate couses such as M.S. M. D. and the like are concerned It for any eminently desirable not toprovide for any resercation based on residence requirement within theState or oninstitutional preference ........................But. Even inregard to admissions to the post-graduate courses we would direct that sofar as supar specilities such as neuro surgery and cardilogy are concerned there should be no reservation at all even on the basis of be grated purely on merit on All India basis."
It is pertinent to mention that the above obsevation are made by their Lordships after quoting with full approval the obsercations form the earlier Supreme Court judgment inDr. Jaudish Saran v. Union of India. and the recommendation of the India Medical Council and the Medical Review Committee. Further observations of Sen J, inPara 31 of thejudgement "....................further classification made on the footing of supar specialities may sercet hat interests of the nation better , though interest of individual States toa small extent may be affected "clearly indicate that the supar specialities courses arefurther classification of post garduate course. That operation of the judgment declaring wholesale resercation of seats to be used was stayed by the Supreme Court till January 1988 by its judgment dated 21st July, 1986 in AIR 1986 SC 1877 is not dispute Once the operation is stayed. It willapply to all pending proceedings . Apart from the fact theat there is nothing in record tosuggest that the registration to post graduate (supar- specialities) courses was made before 21st July. 1986 it is seenthat a similar order was also passed bythe Supreme Court on 2nd May, 1986 in Civil Wirt Petition Nos. 348-52 of 1985 in Dr. Dineshkumar's case directing that effect should not be given to their judgment as regards holding of All India Entrance Examination until the academic year 1987. Thus, looked at form any point of view. It is not possible toaccept that there wasno mandate toholdAll India Entrance Examintion for registration to open seats for post granduate (Suprespecilities) courses and the said direction wasnot stayed till Jaunary, 1988, at the time admission for July 1986 session.
We now come to the submission made on behalf of the Bombay Municipal Corporation Medical Colleges It was suggestedthat invies of the fact that opera tion of the judment declaring wholesale resercation on the basis of institutional preferece bad was stayed till January 1988, registration to post-graduate (super specialities ) courses could be legally made again we find it difficult to accept thesubmission for more than one reason It is not anordinary case of admission tograduate dgree or post graduate degree medical courses where could could perhaps justificably argue that duch courses are availabe almost inallmedical cooleges andtherefore much injustice would for ncause and if during the intereegnum therule of resercation on the basis of institutional preference was followed by ll medical colleges, though eventhere theis Court has held In its judgement dated 13/16the February, 1987 in Writ Petition No. 1707 of 1986 towhich one us is a part. That 10% of the total seats available for registration for the post graudate degree and diploma courses be made available to the candidates of other medical colleges affiliated. Moreover so far as post graduate (super Specialities) courses are concerned for all pracitcable purpose the facility is available on one Governement andthree municipal medical colleges at Bombay Municipal Corporation Medical Colleges the students of other medical colleges even in the state of Maharashtra will be totally deprived of the facility. The say theleast this will be bar form fair. Having regard to the above discussion we have not found it possible to accept the stands takenby theparties before us.
4. All the same there is no dispute about thelegal position that emerges out of all these decisionns as on this day namely the rule providing for wholesale resercation onthebasis of residence orinstitutional preference etc. is bad being violative of Art.14 of the Constitution of India. However, having regard to various relevant factors takeninto account in Dr. Dineshkumar case AIR 1986 Sc 1877 and inthecase of Dr. Pradeep jain not less than 15% and 25% seats for M. B.B. S./B. D. S. and post graduate degree courses respectively areto be filed onmerit on the of All India Entrance Examination As. Regards admission to the post-graduate (super specialities) courses are concerned admissions to all the seats have tobe granted puely on merit on All India basis the operation of the judgement in so far as admissionns to seats are to be filed onmerit onthebasis of All India Entrance examination is stayed in Till January, 1988.
5. It is evidents form what has been stated inParas 2 and 3 above that initially the parties had taken contrary positions, We are however happy tobe able to say that as a result of the discussions that followed during thecourse of hearing allt he learned Counsel appearing for their respective clients were agreed that practical rather than hypertechnical vies should be taken of the matter andif possible a reasonable via media should be found which would byand large satisfy reasonable aspirations of thestudents of all medical colleges in the State of Maharashtra including thepetitioners. The also agreed that if possible thestudents already registered be allowedtocontiue and that for reigstration topost graduate (super specialities) courses themarks obtained in M. B.B. S. examination could not certainly be a proper criteria for judding the relative merits of the students. While the learned Counsel for Bombay Municipal Corporation Medical Colleges was not very sure whether during theinterregunu i. e. until All India Entrance Examination could be held the registration to post-graduate (super Specialities) courses. It would be in orde to restirct admissions to the students of medical collegs formwithin theSTate of Maharashtra even as a via media. The facility of others were of theview that other State alsohad these curses and had not yet made seats intheir respective institutionns available for filing onmerits on all India basis and therefroe filling of seats onmerit on State basis would not be improper Our attention in this context was invitedto certain paragraphs formtheeSupreme Court decisions toshow that during the interregunm it was possible to hold examination bythe State or University and that on the principle of reciprocity accepted ontheSupreme Court the registration could be restricted to the students of the State.
Proposals and counter proposals were made. It was suggested onbehalf of the Bombay Muncipal Corporation Medical Colleges that 50% seats to post graduates (super specialities) courses for July 1987 session might be filed on merit on the basis of an entrcne examination tobeheld by theem in consulation with the unversity. The Counsel for the Governement Medical Colleges stated that in pursuance of Bharucha J. s judgment inthecase of roop Kumar Gurshahani in Writ Petition No. 1859 of 1985 dated 12th March 1986 the Governement medical Colleges had already started filling all seats todegree post graduate degree and post graduate (Super specialities) courses on merit onthebasis of marks obtained in qualitying examination for degree courses and in M. B. B. S. examination for the post -graduate courses. It was however, submitted that the colleges would like to make the same offer as was me by the Bombay Municpal Corporation Medical Colleges excepte that it would like to restrict admissions tostudents form medical colleges in the state of Maharashtra only. The counsel for the petitiners on the other hand,stated that while the proposal as mooted could be acceptable in thelong run ti would not satisfy the aspirations of the petitioner and other students similarly situated. It was pointed out that maximum seats for super specialities were available in Bombay Municipla Corporation Medical Colleges Despite that fact that the rule theresecation on the basis of residentve or instututional preference was declared bad by the Suprem Court inJune 1984, admission was available to the students of their colleges/or governement medical college til this date. Morever theseats for july 1987 session were much less thatn the total number of seats available for the whole year.
It was common ground that in order to properly apprecite rival proposal the following facts are material;
In view of the Supreme Court decision in Pradeep Kumar's case (June 1984 ) allthe seats for post graduate (super sepcialities) courses were tobe filed onmerit on All India Basis However, the Bombay Municipal Corporation Medical Colleges have followed therule of institutional preference up toand including the admission for Jauuary, 1987 session while for Governement Medical College has done so up to and including Jaunary 1986 session.
Operation of he above judgment in so far as seats wers tobe filed onmerit on the basis of all India Entrance Examination has ben stayed up to Jaunary 1988.
Even though the Rule of institutional preference was follwed students form order Universities have also got registration as in quite a few subjects institutinoal candidates were not available. For instance out of 27 seats available for January, 1987 session in B.. M. C. Medical Colleges students form other Universities got resitration in 10 seats despite the rule providing institutional preference.
As Againt 15 and 20 seats for January 1987 session seats available for July 1987 session in th e government medical college and B. M. C. Medical Colleges respectively are 11 and 20 out of which 5 are reserved for categories sucha Scheduled Caste Scheduled Tribe Other Backward Class and.
In the Governement Medical College there was altogether 15 seats for January 1987 session the institutional candidates availed of 7 other students form within the State availed of 6 and students out of the State availed of 2.
Subjectwise break up of seats of july 1987 session in the governement medical college and B. M. C. Medical Colleges is as under.
See table on next page) Thus if the possible in the form thebeenput gorward by the counsedl for B. M. C. and Governement Medical Colleges is tobe accepted 13 out of 26 seats will be filed onmerit form amonhse the students of other than the above 4 medical colleges form within the State of Maharashtra Apart form thefact the having regard to the institutional preference enjoyed by te students of these colleges solong despite the Supreme Court judgment It may not be very fair to the students form the other medical colleges tokeep 13 seats only it may be a job todistribute seats equally wheninquite a few specialities openseats are 1, 3, 4 etc. On the other hand, it all the seats aretothe filed on merits for July 1987 session open seats will be 26 and the students of these andother medical collges will have equal opportunity,.It is not DM B. M. C Govt. Medical Medical College
1. Cardilogy 4 1
2. Gastroenterology 1
3. Neurology 1
4. Neurology 2 2 (one regis tered)
5. Endocrenology 0 -
MCH
1. Uerology 3 1
2. CVTS. 3
3. Neuro Surgery 3 -
4. Paediatric surgery 2 2 (one seat reserved)
5. Plastic Surgert 2 2
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20Throacic Sugery 2 (one seat
reserved)
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11
Unlike that the students form these medical colleges willget registration to 50% near about or even more seats onmerit. Accordingly as a special case for July 1987 session we direct that all the open seats for post graduate (super specialities) courses should be filed onmerit form amongst the atudents of medical colleges inth State of Maharashtra.
6. Next pertinent question is how to judge therelative merits of the students from different unversities within theState We have already referred to the Suprem Court's categorical observation in that unquestionably no admission can be allowed tobe made on the basis of marks obtained at different M. B. B. S. examinations held by different universities Moreover, so far as post-graduate 9super specialities) courses are concerned it is the performance at thepost graduate degree examintion whichmay by relevant rather then the performation at m. B. B. S. examinations. We are again happy toobserve that thegovernement medical college and B. M. C. Medical colleges have come forward with a suggestion which an reasonable and is accentqble ot the petitioner made its Examination for holding entrance Examintion in resepct of each of the super specialities inconsultion withteh University of Bombay and hold written practivel and viva voce examinations for judging relative merits of the students for registration to different disciplines. It was stated that the number of students appliyng for registration for post graduate (super specilities) courses is within reasonable limit andit may be possible to do so. Theyhave also agreed to restirct themselves to the directionns givenby the Supreme Court in another casethat the marks reserved for practical and viva voce shal no exceed 18% of the totalmarks. We wouldhowever like tomake it clear that this argugemertn is made only not July 1987 session. If for any reason it is not possible tohold All India Entrance Examination for post graduate (super specialities) courses for admissions in January 1988 session as directed by the Supreme Court and the Supreme Court further grants extension it would be openfor B. M. C. Medical Colleges and govt. medical colleges toreserve that 50% of the seats for candidates form their institutions andto fill theremaining 50% seats onlyon merit by Medical Colleges from within the Stae of Maharashtra. It is further agreed that those of the petitioners herein who are or were students other medical colleges form within the State of Maharashtra will be able to compete for seats for july, 1987 session and theJoint Medical Boardwillbe constituted for holding an examination on State basis.
B. M. C. and Government Medical Colleges are accordingly directedtofill and open seats in post graduate (super specialities) courses for July 1987 session on merit on state basis and to take immediate steps for holding theEntrance examination etc.after giving due publicity to the new scheme so that all eligible students form within the State Of Maharashtra have reasonable opportunityof competing for theseats.
7. By consent the rule is partly made absolute. There will be on order as to the costs. Ad interim stay granted stands vacated.
8. Ordered accordingly.