Bombay High Court
Hariprasad Sanat Trivedi And Etc. vs The Dean, Topiwala National Medical ... on 29 April, 1988
Equivalent citations: AIR1989BOM281, 1988(3)BOMCR215, AIR 1989 BOMBAY 281, (1988) 3 BOM CR 215, (1988) MAHLR 1359, (1988) MAH LJ 475
JUDGMENT Sawant, J.
1. The petitioners in these two petitions have challanged R.4(a) of the Rules of the Greater Bombay Municipal Corporation for admission to Post-Graduate Degrees and Diploma Courses at the Municipal Medical colleges affiliated to the University of Bombay, and the consequent preference given to the respondent students for seats in Super-Specialities in the Municipal Medical Colleges.
2. The petitioner Dr. Trivedi in Writ Petition No. 1165 of 1988 passed his qualifying M. B. B. S Examiantion in Oct., 1983 from the Grant Medical College, Bombay, which is a State Government College. He completed Internship in the year 1984 and passed his M. D. Examination in Medicine in the year 1988 from the same College. Pursuant to advertisement given by the Dean of the Topiwala National Medical College belonging to the 2nd respondent Bombay Municipal Corporation inviting applications for seats in different Super-Speciality Courses like Cardiology, Gastroenteriology, Neurology, Thorapic Surgery, Plastic Surgery and Neuro surgery, he applied for the only seat advertised for Gastroenterology. His corrected marks in M.D. (Medicine) were 272 as against 225 of respondent 3 Dr. N. Vishwanath. However, respondent 3 was given preference by the 1st respondent Dean of the Topiwala National Medical College because of the institutional reservation made by the said R.4(a). Respondent 3 passed his M. B. B. S. Examination from Lokmanya Tilak College, Sion, belonging to the Municipal Corporation and did his M.D. in Medicine from the same College. Hence this petition was filed on April 15, 1988 challenging the said R.4A. On the very day the learned single Judge on the very day the learned single Judge on the Original Side of this Court passed an interim order whereby the allotment of the seats was made subject to the result of the petition. The learned Judge admitted it on April 19, 1988 and referred the matter for decision to a Division Bench.
3. Dr. Deodatta Shripad Chafekar is the petitioner in the companion Writ Petition No. 1191 of 1988. He passed his qualifying M. B. B. S Examination from the Government Grant Medical College in Oct., 1983 and completed his Internship in Dec., 1984. He passed his M. D. Examination in Medicine in Jan., 1988. Pursuant to the advertisement given by the 1st respondent Dean of the Seth G. S. Medical College also belonging to the second respondent Bombay Municipal Corporation, for seats in various Super-Specialities, he applied for the only seat advertised for the Super Speciality of Nephrology. Although, however, his corrected marks are 261, respondent 4 Dr. Popat, whose corrected marks are 257, was given the seat on the basis of the same 257, was given the seat on the basis of the same R.4(a) because Dr. Uday Popat had passed this M. B. B. S Examination from G. S. Medical College as well as M. D. Examination from the Lokmanya Tilak Medical College both belonging to the 2nd respondent Municipal Corporation.
4. Since an arrangement arrived at between the Government and the Bombay Municipal Corporation is incorporated in the decision of a Division Bench of this Court reported in AIR 1987 Bom 281 Sunil v. Bombay Municipal Corpn. And id directly in challenge in the present petition, we permitted the petitioners to amend the petition by adding two more parties as respondents to the petition, namely the State Government and the University of Bombay. We must state here, for the sake of record, that since the matter was of an urgent nature, we could not hear the State Government and the University. However, since by this judgment we are only giving effect to the law laid down by the Supreme Court in the case of Dr. Pradeep Jain v. Union of India, , no prejudice would be caused either to the State Government or to the University as we will point out hereafter.
5. The impugned R.4(a) is as follows:
"4. Preference:
(A) While selecting candidates for admission to the post-graduate courses preference shall be given in the following order:
(a) Candidates applying for admission at the present institution (Note: present institution means the medical college at which the candidate has passed his qualifying examination);
(b) Candidates who have graduated from other Municipal Medical Colleges in Brihan Mumbai;
(c) Candidates who have graduated from other constituent medical colleges of the University of Bombay;
(d) Candidates who have graduated from a recognised medical college of any other Indian University."
This Rule thus incorporates what is known as institutional reservation in the order of priority given in sub-cls. (a), (b), (c), and (d) above. As has been rightly pointed out on behalf of the petitioners, the Rule is directly in Conflict with the law laid down by the Supreme Court in Dr. Pradeep Jain's case (supra)a nd the subsequent decision in the case of Nidamarti v. State of Maharashtra, . The ratio of these decisions is that while all seats for the M. B. B. S Course may be reserved either on the basis of domicile in the State and/or institutional preference effected through University wise such as M. D., M. S., etc, at least 30% of the seats have to be kept open for merits on country wide basis. So far as however the seats in the Super-Specialities such as the ones in the present cases are concerned, reservation on any ground, except those permitted by the Constitution is illegal being in breach of Art. 14 of the Constitution.
6. It must further be remembered that the cent per cent reservation of the graduate-seats on the basis of domicile in the State and/or institutional preference at the University level is upheld by the Court because of the acknowledged reality of uneven development of the different regions in the country and the need for continuity of education in the particular University. However, none of these considerations can apply to the reservations either on the basis of domicile in a district or of continuity of education in a particular College. Hence the Court had not countenanced reservations made on the basis of domicile in a particular district. The cases of the distribution of seats effected through Colleges though belonging to the same University have not come before the Court. however, since none of the considerations for keeping reservation would apply to such micro-classification, we have no doubt that such reservation will be invalid being violative of Art. 14 of the Constitution.
7. After holding that the reservations for seats in Super-Speciality are illegal and that such seats should be open for merit competition on the national level, the Supreme Court in Dr. Pradeep Jain's case had suggested that the Indian Medical Council should hold an All India Entrance Examination for admission to such seats. However, it was found later that it was not possible to implement the said direction immediately firstly because the preliminaries for holding such examination had to be completed and, secondly, all the States had to co-operate. In the absence of the latter, there was bound to he a discrimination against the students from the State which agreed for such examination for their seats as against the students form the States which did not. Hence in its subsequent decision reported in Dr. Dinesh Kumar v. Motilal Nehru Medical College, allahabad. , the Court directed that save and except in those cases where entrance examination had already been held by any State Government or the Government of any Union Territory or any University pursuant to the directions given in its judgment in Dr. Pradeep Jain's case the said direction should be implemented only from the academic year 1986 and should not be effected for the then current academic year 1985. The suspension of the directions in Dr. Pradeep Jain's case was subsequently extended up to June, 1988, as it evident from the unreported judgment of the Supreme Court in Civil Misc. Petn. No. 7667 of 1987 in Writ Petns. Nos. 348-352 of 1985, decided on Aug. 3rd, 1987 and published in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad. We are not aware as to whether the said direction have been suspended beyond June. 1988.
8. However, the suspension of the direction in Dr. Pradeep Jain's case to hold All India Entrance Examination on the aforesaid grounds does not mean that the law laid down in the said case is suspended. This is particularly so when the law can be implemented on the State level. Nor can the institutional reservation on college basis be sustained on the specious ground that the All India Entrance Examination cannot be held. It has no relevance to the College wise reservations. When it is possible to implement the law on the State level, the non-implementation of it results in discrimination and is, therefore, illegal. The seats have therefore to be filled in by advertising them at the State level and holding the State Entrance Examination compulsorily not only where the applicant students belong to more Universities than one bu also where they belong to the same University. This is no, because as is pointed out by Mr. Bharucha for th respondents students the practice of decentralised system of markings leaves scope for a possibility of discrimination on account of the different approaches of the different examiners. It is true that no system of examination can be perfect. But we can always try and evolve the least imperfect system. Such examination will also take care of the possible difference in performance of the students who have graduated in different years.
9. Mr. Bharucha, appearing for the respondent students, then pointed out that this course may not be open to us in view of the decision of the Division Bench of this Court reported in Dr. Sunil Vasant Sathe's case (AIR 1987 Bom 291) (supra) where in para 6 of the judgment the Court has allowed both the Municipal Corporation Medical Colleges to reserve 50% of the seats for candidates from their colleges and to fill only the remaining 50% of the seats on merit by holding examination for the students from the State. As we peruse the said judgment, we find that that judgment ahs neither purported to pay down any law nor has it, in fact, laid down any law. The decision has been given on the basis of the concessions made and the agreement arrived at between the parties. In fact, up to para 5 of the judgment the learned Judges have, with respect, correctly summarised the position of law as laid down by the Supreme Court. however, as it evident from paras 6 and 7 of the judgment, since both the Government and the Municipal Medical colleges came forward with certain suggestions and agreed amongst themselves to a certain arrangement the rule was made absolute by consent. Hence the directions which are pointed out to us by Mr. Bharucha are also a part of the said agreement. Unfortunately, it appears that it was not pointed out to the learned Judges then that the agreement which was arrived at between the parties before them could not bind the future students. As the have stated earlier, the Division Bench also did not with to lay down a proposition of law by the said agreement. Hence we do not think that the contention advanced by Mr. Bharucja is well merited.
10. In the view that we have taken, therefore, it has become necessary to resolve not only the disputed between the parties before us but also to lay down guideline for all admissions to the Super-Specialities hereafter in all medical colleges in the State.
11. First, with regard to the guidelines, which the Medical Colleges in the State should follow hereafter;
(i) all the seats in the super-Specialities whenever they are available (except those which are subject to constitutional reservations) shall be filled in by holding an entrance examination of all the qualified applicant students from the State.
(2) The examination should be held by the Board of Examination constituted for the purpose by the State Government in consultation with the University of Universities to which the colleges in which the seats are available are affiliated.
(3) For such examination, the marks reserved for the practicals and viva voce should not exceed 18% of the total marks as suggested by this Court earlier.
12.That leaves us with the dispute between the parties before us. The relevant facts relating to the admission of the respondent-students to the seats concerned are as follows.
The select lists of both the Specialities were published on April 19, 1988. The last date for the payment of fees was April 20, 1988. Respondent in Writ Petition No. 1165 of 1988 paid his fees on April 20, 1988 and the respondent-student in Writ petition No. 1191 of 1988 paid the fees on April 22, 1988. Both the respondents are till to-day holding the posts of Registrars in Lokmanay Tilak Municipal General Hospital. They have not yet jointed the Super-Specialities. They had to be registered with the Bombay University on or before 20th April 1988. The term for which the admissions have been given is, as things stand to-day believed to the sound term of the academic year 1987-88 which officially commenced in Nov., 1987 and ended on April 20, 1988. Since, however in this year the results of the M.D. Examination were delayed till March, 1988, the University has yet not decided whether the students should be registered for the Super-Specialities for the second term. In case the University decides to register them for the said term, there is no reason why either the petitioners or the respondents whoever are successful in the examination that we are hereafter directing to hold, should suffer. We, therefore, direct the Joint Board of Examination as constituted in para 6 of the judgment of the Division Bench reported in AIR 1987 Bom 291 (Sunil v. Bombay Municipal Corpn), to hold the entrance examination in both the petitions before us. The Municipal Colleges concerned should admit only those of the petitioners and/or the respondents who will succeed in the examination, to the respective Super-Specialities for which they have applied. In the said entrance examination also the marks reserved for practical and viva voce should not exceed 18% of the total marks. The examination should be held within two weeks from today.
12A. A copy of this judgment and the directions be sent to the Director, Medical Education and Reserarch, and Drugs of the State Government. It is needless to add that the present admission given to the respondent students in both the petitions will stand cancelled. The University will register the successful students for the second term of the academic year 1987 -88 in case the University decides to grant registration in the said term in the meetings which, we are informed is proposed to be held for the purpose.
13. Mr. Sanklecha points out that the respondents Dr. Papat in Writ Petition No. 1191 of 1988 had a approached the Grant Medical college, which is a Government College as stated above, for a seat in the Super-Speciality of Carduology. However, since that College had only one seat in the said Super-Speciality and it was reserved for the student of the Grant Medical College, the College did not even issue the form of application. He has produced before us the list of candidates, who had applied for the said seat, with their respective subject and corrected marks as published on the Notice Board of the College. The list shows that there are at least three candidates namely Dr. Keni, Dr. Savant and Dr. Vaidya who have secured less marks than the respondents. While the respondent has secured 257 marks as corrected (according to the Government Rules) the said three students have secured 245, 243 and 241 marks respectively. In case, therefore, any candidate who has secured more marks than the respondents Dr. Popat, does not take or withdraws from the seat, the Board of Examination should also hold entrance examination of all the qualified students who had applied for, it and offer the seat to the successful candidate. It is, however, made clear that if the seat has already been allotted to the candidate, who has secured corrected marks more them Dr. Popat, and he does not withdraw he shall not be disturbed and there will be no need to hold the entrance examination.
14. Rule is made absolute accordingly in both the petitions.
15. Miss Rehman applies for stay of the operation of this order. All that we have done is to work out the decision of the Supreme Court reported in Dr. Pradeep Kumar Jain's case . Hence there is no question of staying the operation of this order.
16. Liberty to the State Government to apply so far as the decision affects the Government Medical Colleges.
17. Petition allowed.