Kerala High Court
Praveen S. Lal vs State Of Kerala on 29 September, 2006
Equivalent citations: 2006(4)KLT712
Author: S. Siri Jagan
Bench: S. Siri Jagan
JUDGMENT S. Siri Jagan, J.
1. The issue involved in these two Writ Petitions is as to whether institutional preference granted to the students who passed MBBS from the Medical College, Trivandrum in the matter of admission to the training programme for award of the degree of Diplomate of National Board, is justifiable and if justifiable, to what extent such institutional preference can be given in the matter of such admission.
2. The petitioners are MBBS degree holders who, after passing the centralised entrance test prescribed for the purpose, applied for admission to the training programme for the award of the degree of Diplomate of National Board in the Medical College, Trivandrum. Before going to the facts of the case, I may note the salient features of the award of the particular degree.
3. This degree is awarded by the National Board of Examinations of the Government of India, which was established with the prime objective of improving the quality of medical education by elevating the level and establishing standards of postgraduate examinations in modern medicine on an all India basis. The Board conducts postgraduate and postdoctoral examinations in 54 disciplines approved by the Board for the award of the degree of Diplomate of National Board. The Diplomate qualifications awarded by the National Board of Examinations have been equated with postgraduate and post-doctorate degrees awarded by other Indian Universities by the Government of India, Ministry of Health and Family Welfare, vide notification No.V 11015/6/94-ME (UG) dated 3.10.94. The holders of Board's qualification of Diplomate of National Board awarded after the examination conducted by the National Board of Examinations are eligible to be considered for specialists posts in any hospital other than a training/teaching institution. For teaching appointments as lecturers in the specialities, the holder of the Diplomate of National Board should have at least one year experience as Tutor/Registrar/Demonstrator or an equivalent post in a recognised Medical College imparting undergraduate training. A candidate holding medical qualification registerable under the Medical Council of India Act, 1956 and such other qualification as may be recognized by the Medical College of India from time to time is eligible to take the Board's examination. Candidates are required to register with the Board for getting required training as a Diplomate of National Board candidate in a Hospital/Medical College recognised by National Board of Examinations/Medical Council of India/University for the purpose of training. A candidate for admission in Board's specialities is required to pass two separate examinations, namely, the Centralised Entrance Test (CET) and the final examination. The candidate has to first register himself with the National Board of Examination. Thereafter, he/she must pass the Centralised Entrance Test. On passing the CET, the candidate becomes eligible to apply for admission to the training programme. On completion of the training programme, he/she has to appear for the final examination and if the candidate passes the final examination, he/she would be given degree Diplomate of National Board. The candidate who passes the CET has to apply directly to the institution accredited to the National Board of Examination. That institution is to select candidates for training based on the applications received from CET passed candidates. The institution should select the candidates to the number of seats allotted to each speciality for the training programme. The candidate so selected, on completion of the training, becomes eligible to write the final examination conducted by the National Board of Examinations, on passing of which the Degree of Diplomate of National Board would be awarded.
4. The bone of contention between the petitioners and the party respondents in these Writ Petitions is the eligibility criteria fixed by the Medical College, Thiruvananthapuram for admission to the above training programme as per the guidelines contained in the Bulletin of Information published by National Board of Examinations. The Medical College, Thiruvananthapuram was to prepare a merit list of candidates, taking into consideration the aptitude of candidates and any previous experience in the speciality. For the purpose of such selection, the Principal of the Medical College, Thiruvananthapuram issued Ext.P5 prospectus for the July 2006 batch of students. Under Clause 1(7) of the prospectus, it was provided that preference would be given to candidates who had studied in that College/University/other Government Colleges in Kerala as detailed in Clause V. Clause V contained the mode of selection. The same reads thus:
V. Mode of Selection:
1) Selection will be made as per the rank list prepared by this office based on the marks of the MBBS examination.
2) Ranking will be based on the marks obtained in MBBS examination (Percentage of marks in Final MBBS Part I, Part II exams and marks in the concerned subject).
3) Preference will be given to the students who did their prior course in this college/ University/Other Government colleges in Kerala.
4) In case of a tie in ranking, candidate securing highest percentage of mark in the subject will be ranked higher. In case of any further tie in ranking age of the applicant will be considered with preference to the elder ones.
5) Selected candidates will have to join the course on the prescribed date by producing all the requisite documents in original and paying the prescribed fees; failing which, they will forfeit their seat and the seats thus falling vacant will be filled up by the candidates from wait list, having validity for one month from the date of admission.
6) Selected candidate shall register with the National Board within one month of joining the course.
7) The selected candidates will abide by the rules and regulations of this college and will not engage in private practice during the period of training.
5. The petitioner in WP (C) No. 19808/2006 passed MBBS degree from the Sree Ramachandra Medical College and Research Institute, Chennai. The petitioner in W.P.(C) No.21356/2006 obtained MBBS degree from Kannur University. The petitioners as well as the party respondents applied for admission to the specialities of Paediatrics and Radio Diagnosis. The party respondents are all persons who obtained MBBS degree by undergoing the required course of MBBS from the Medical College, Thiruvananthapuram, except the 5th respondent in W.P. (C) No.21456/2006 who passed from Medical College Alappuzha. When the merit lists were published, the petitioners were ranked below the party respondents in the respective Writ Petitions. This was on account of the fact that the party respondents were given a weightage of 10 marks as students studied in the Medical College, Thiruvananthapuram and 8 marks as student who studied in Medical College, Alappuzha. The petitioners challenge the selection on the following grounds.
(1) The institutional preference as well as award of weightage for such institutional preference were prescribed by the selection committee, which was unauthorised and could not have been done without specific authorisation by the National Board of Examinations.
(2) The preference given to the party respondents on the basis of the institution in which they studied for MBBS course is arbitrary and does not withstand the test of Article 14 of the Constitution of India.
(3) Even if preference is justifiable, going by the prospectus, they are only entitled to preference when all other things are equal and neithertheeligibility criteria prescribed by the National Board of Examinations nor Ext.P5 prospectus authorize granting of marks as weightage to students on the basis of the institution in which they studied.
(4) Lastly, they submit that even assuming that the same can be given, the award of 10% marks is highly excessive and would demonstrably result in 100% reservation in favour of the students who studied for MBBS in the Medical College Thiruvananthapuram. In any event, such institutional preference could not have been in excess of 50% of the total number of seats.
6. The Principal of Medical College, Thiruvananthapuram as well as the party respondents support the institutional preference given to the selected candidates. They would submit that going by the Bulletin of Information issued by the National Board of Examinations, the institutions conducting selection were empowered to fix the eligibility criteria for such selection and the method of selection and prospectus are being made by a Board, which included 15 Head of the Department of the College. It was the said Board which decided to grant institutional preference and weightage of marks, which is perfectly authorised. According to them, going by the Supreme Court decisions on the subject, such institutional preference was permissible which alone was given to them by the selection committee. They would submit that the petitioners also enjoyed the benefit of weightage fixed by the very same Board and after enjoying the same, they are estopped from turning around and challenging the weightage given to the students of Medical College, Thiruvananthapuram. On these contentions, they seek dismissal of the Writ Petitions.
7. The 5th respondent-National Board of Examinations, however, in their affidavit, would submit that the 5th respondent does not promote and/or prefer any kind of preferential weightage of marks to candidates because the preferential weightage of marks would be in derogation to the scheme of achieving excellence in medical education.
8.1 have heard the learned Counsel on both sides including the learned Government Pleader and counsel for the 5th respondent-National Board of Examinations.
9. It is not disputed before me that the National Board of Examinations is the authority who is conducting the examinations leading to the award of the degree of Diplomate of National Board. It is also not disputed before me that the degree of Diplomate of National Board is equivalent to postgraduate degrees awarded by other Indian Universities. The parties have also produced before me the Bulletin of Information-cum-Application Form for Diplomate of National Board (Final Examination) and Centralised Entrance Test for June, 2006 Theory Examinations and September-October Practical Examinations. With regard to the eligibility criteria for selection to the training programme to be conducted by the accredited institution, the provision in the bulletin is Clause 5.1.5 which reads thus:
5.1.5 (a). Guidelines for Selection of CET/Primary pass candidates. The restriction on the validity period of primary pass candidates has been removed forthwith. The validity of new procedure (CET) has also been removed.
(b) The CET/Primary pass candidates will apply directly to the NBE Accredited institution who will select the candidates based on the applications received from CET/Primary pass candidates. The institution will evolve a merit list taking into consideration the aptitude of candidates and any previous experience in the speciality. The institutions will send the forms of selected candidates to NBE for registration, within one month of candidates joining.
(Emphasis supplied) It is also not disputed before me that the 3rd respondent-Principal of the Medical College is bound to conduct the selection in accordance with the said clause. According to the 3rd respondent this particular clause authorises the institution to evolve the method of selection, which includes prescription of institutional preference as well as weightage of marks for such institutional preference. On a reading of the above said clause, I do not find any such authority given to the 3rd respondent in the above clause. The above said clause stipulates that the institution is to select the candidates based on the applications received from candidates who passed CET and that the institutions would evolve a merit list taking into consideration the aptitude of the candidate and any previous experience in the speciality. Since, admittedly, it is the National Board of Examinations, who is the authority competent to prescribe the eligibility criteria, the institutions making the selection of candidates would have to confine themselves to the guidelines prescribed by the National Board of Examinations in the above clause. Going by the above clause the institutions were only to evolve a merit list taking into consideration the aptitude of the candidates and any previous experience in the speciality.
10. Now, let us see what the Principal has done in this case. The Principal has first issued Ext.P5, in which preference was given to students who passed their prior course in the Medical College, Thiruvananthapuram/University/Other Government Colleges in Kerala. Ext.P5 itself did not contain any stipulation that any weightage of marks would be given to candidates pursuant to the preference so given. Although in the counter affidavit filed by the 3rd respondent, it is stated that the selection method and prospectus were made by a Board which included 15 Head of the Department of College, the 3rd respondent has no contention that the weightage of marks given to candidates have been included in the prospectus nor that the same has been made known to the candidates separately prior to the selection. Subsequent to the filing of WP(C) No. 19808/2006 on 26.7.2006, apparently, pursuant to a request from the father of the Writ Petitioner in tat Writ Petition, the 3rd respondent issued letter dated 27.7.2006, which reads thus:
With reference to your request 1st cited, I am to inform that, a selection board has been constituted for the DNB Course admission, July 2006 Session and the selection board have fixed the selection criteria, based on the policy decision of the NBE Dt.29.6.2005.
The Selection Criteria has been mentioned in the prospectus clause -V 'Mode of Selection'.
To make the admission procedure more transparent, the board decided to consider the marks of the MBBS Course for the assessment of the Candidate.
For the effect of Clause V-3 the Board fixed waitage marks as shown below:
1. Diploma in Concerned Subject - 15
2. CET/Primary - 10
3. Diploma+CET/Primary - 17
4. Students studied in Medical College, Thiruvananthapuram - 10
5. Students studied in Medical College, Alappuzha (Under the Kerala University) - 8
6. Students studied in other Government Medical Colleges and Universities in Kerala - 5 A copy of the detailed Rank list and Address of the first 12 candidates in the rank list of Paediatrics and Ref.2nd, 3rd and 4th cited are enclosed herewith for your information.
It is from this letter that the petitioner came to know about the weightage of marks given to candidates who studied in Medical College, Thiruvananthapuram, Medical College, Alappuzha and students who studied in other Medical Colleges and Universities in Kerala. The petitioner in WP(C) No. 19808/2006 has later amended the Writ Petition incorporating the above said letter as Ext.P7 and Ext.P8 enclosed therewith. Since the validity of the weightage itself is to be examined based on Clause 5.1.5 supra, let us see whether the prescription of weightage is. in accordance with Clause 5.1.5 quoted above.
11. The first criteria to be taken into account for selection is the aptitude of candidates. The marks secured by the candidate in the MBBS examination would certainly be a yardstick for assessing the aptitude of candidates. Therefore, the first prescription of consideration of the marks of MBBS Course for the assessment of the candidate would be perfectly in accord with Clause 5.1.5. The second criteria to be adopted for selection is any previous experience in the speciality. Diploma secured by the candidate in the concerned subject could certainly be regarded as previous experience in the speciality taking into account the fact that during the period of study for Diploma, the student would have to work in the speciality. Here, I may also note that weightage marks were also given for pass in CET, which is pointless as far as the selection is concerned, since only persons who pass CET can apply for selection for training and in CET the candidates are only declared as either passed or failed. Viewing thus, these two criteria fixed by the selection board are certainly within the ambit of the eligibility criteria fixed as per Clause 5.l.5 by the National Board of Examinations, who is the authority to do so. However, Clause 5.1.5 stops at that and does not give authority to the selection body to adopt any further criteria for the selection of candidates. The question as to whether selection committee has jurisdiction to lay down norms for selection was the subject matter for decision of the Supreme Court of India in Dr. Krushan Chandra Sahu and Ors. v. State of Orissa and Ors. . Paragraphs 32 to 28 are the relevant portion of the judgment, which read thus:
32. The proceedings indicate that since Rule 3 was silent as to the guidelines on the basis of which suitability of the candidate was to be adjudged, the members constituting the Selection Board, by a majority decision, resolved to determine the suitability on the basis of confidential character rolls of the candidates who were already employed as Homoeopathic Medical Officers.
33. Now, power to make rules regulating the conditions of service of persons appointed on Government posts is available to the Governor of the State under the proviso to Article 309 and it was in exercise of this power that the present Rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislature, or, for that matter, by the Governor of the State, it would be open to the appropriate Government (the Central Government under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions (See: Sant Ram v. State of Rajasthan .
34. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homoeopathic Medical Officers, as the basis for determine their suitability.
35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article 309. It is basically the function of the Rule making authority to provide the basis for selection. This Court in State of A.P. and Anr. v. Sadanandan and Ors. observed as under:
We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive.
(Emphasis supplied)
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer Ors. v. Union of India and Ors. , it was observed:
By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm.
37. Similarly, in Umesh Chandra Shukla etc. v. Union of India and Ors. 1985 Suppl. (2) SCR 367, it was observed that Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa and Ors. and the limitations of the Selection Committee were pointed out that it has no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav Ors. v. State of Haryana and Ors. AIR 1981 SC 56. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
Although this decision has been rendered in the context of selection to a service, I am of opinion that the ratio of that decision is applicable with equal force to selection for admission to courses also. If that be so, accepting Clause 5.1.5 as the eligibility criteria fixed by the National Board of Examinations for selection, the prescription of institutional preference and weightage of marks for such preference would be unauthorised and incompetent at the hands of the selection committee or the institution. My above finding is fortified by the counter affidavit of the 5th respondent to the effect that the grant of preferential weightage of marks to candidates was not in contemplation of the 5th respondent. Viewing thus, the grant of weightage marks for institutional preference as evidenced by Ext.P7 is unauthorised and I hold so.
12. Although, for practical purposes, the above finding would be sufficient to dispose of the Writ Petitions, since elaborate arguments have been advanced before me by counsel on both sides in respect of the other contentions also, I am inclined to go into those contentions as well.
13. Now, the next question arising for consideration is the justifiability of grant of institutional preference in the matter of selection of candidates to the training programme under consideration. A number of decisions of the Supreme Court have been quoted before me in respect of the validity of institutional preference in addition to the Medical Colleges themselves. They are, Charles K. Skaria and Ors. v. Dr. C. Mathew and Ors. , Dr. Jagadish Saran and Ors. v. Union of India , Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College, Allahabad and Ors. , State of Rajastan and Anr. v. Dr. Ashok Kumar Gupta and Ors. , Madanlal and Ors. v. State of J & K and Ors. , Gujarat University v. Rajiv Gopinath Bhatt and Ors. , Secretary (Health), Department of Health & EW and Anr. v. Dr. Anitha Puri and Ors. , Union of India and Anr. v. N. Chandrasekharan and Ors. , Ahmedabad Municipal Corporation and Anr. v. Nilaybhai R. Takore , AIMS Students' Union v. AlIMS and Ors. , Bibhudatta Mohanty v. Union of India and Ors. , Secretary, AP Public Service Commission v. Y.V.V.R. Srinivasulu and Ors. and Saurabh Chaudri and Ors. v. Union of India and Ors. .
14. Regarding the validity of grant of institutional preference, I need not refer to the various other decisions, since, fortunately for me, the matter has been concluded by three decisions of the Supreme Court, namely, Dr. Pradeep Jain v. Union of India , AIMS Students' Union v. AIMS and Ors. and lastly Saurabh Chaudri and Ors. v. Union of India and Ors. . Out of these Saurabh Chaudri's case is by a Constitution Bench of the Supreme Court which approved Dr.Pradeep Jain's case. The also approved certain findings in AIIMS Students case. The Supreme Court also recapitulated all the earlier decisions of the Supreme Court and ultimately came to the following conclusion:
The sole question, therefore, is as to whether reservation by way of institutional preference is ultra vires Article 14 of the Constitution of India. We think not., Article 14, it will bar repetition to state, forbids class legislation but does not forbid reasonable classification, which means: (1) must be based on reasonable and intelligible differentia; and (2) such differentia must be on rational basis.
65. Hence, we may also notice the argument whether institutional reservation fulfils the aforementioned criteria or not must be judged on the following:
1. There is presumption of constitutionality.
2. The burden of proof is upon the writ petitioners as they have questioned the constitutionality of the provisions.
3. There is a presumption as regards the State's power on the extent of its legislative competence.
4. Hardship of a few cannot be the basis for determining the validity of any statute.
66. The court while adjudicating upon the constitutionality of the provisions of the statute may notice all relevant facts whether existing or conceived.
67. This Court may therefore notice the following:
(i) The State runs the universities.
(ii It has to spend a lot of money in imparting medical education to the students of the State.
(iii) Those who get admission in postgraduate courses are also required to be paid stipends. Reservation of some seats to a reasonable extent, thus, would not violate the equality clause.
(iv) The criterion for institutional preference has now come to stay. It has worked out satisfactorily in most of the States for the last about two decades.
(v) Even those States which defined the decision of this Court in Dr.Pradeep Jain case, , had realized the need for institutional preference.
(vi) No sufficient material has been brought on record for departing from this well-established admission criterion.
(vii) It goes beyond any cavil of doubt that institutional preference is based on a reasonable and identifiable classification. It may be that while working out the percentage of reservation invariably some local students will have preference having regard to the fact that domicile/residence was one of the criteria for admission in MBBS course. But together with the local students, 15% students who had competed in all-India entrance examination would also be getting the same benefit. The percentage of students who were to get the benefit of reservation by way of institutional preference would further Government Order down if the decision of this Court in Dr.Pradeep Jain case is scrupulously followed.
(viii) Giving of such a preference is a matter of State policy which can be invalidated only in the event of being violative of Article 14 of the Constitution of India.
(ix) The students who would get the benefit of institutional preference being on identifiable ground, there is hardly any scope for manipulation.
68. In N. Vasundara v. State of Mysore it was observed:
But cases of hardship are likely to arise in the working of almost any rule which may be framed selecting a limited number of candidates for admission out of a long list. This, however, would not render the rule unconstitutional.
69. As noticed hereinbefore, in D.N.Chanchala case, , M.R.Mini case, Jagadish Saran case, , institutional preference has been preferred. It has been reiterated in the law laid down by way of a scheme evolved in Dr.Pradeep Jain and reiterated in Magan Mehrotra.
70. We, therefore, do not find any reason to depart from the ratio laid down by this Court in Dr. Pradeep Jain. The logical corollary of our finding is that reservation by way of institutional preference must be held to be not offending Article 14 of the Constitution of India.
71. However, the test to uphold the validity of a statute on equality must be judged on the touchstone of reasonableness. It was noticed in Dr.Pradeep Jain case that reservation to the extent of 50% was held to be reasonable. Although subsequently, in Dr. Dinesh Kumar(II) case, , it was reduced to 25% of the total seats. The said percentage of reservation was fixed keeping in view the situation as then existing. The situation has now changed to a great extent. Twenty years have passed. The country has during this time produced a large number of postgraduate doctors. Our Constitution is organic in nature. Being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding.
72. Having regard to the facts and circumstances of the case, we are of the opinion that the original scheme as framed in Dr.Pradeep Jain case, should be reiterated in preference to Dr.Dinesh Kumar (II) case. Reservation by way of institutional preference, therefore, should be confined to 50% of the seats since it is in public interest.
73. For the purpose of selecting the candidates, it is necessary to hold an all-India entrance examination by an impartial and reputed body. We must therefore, lay down the criteria therefor. AIIMS in terms of an order passed by this Court has been conducting the said examination. It may continue to do so unless a competent body is created by the Central Government in terms of a parliamentary Act or otherwise. Allexpenses for conducting such examination shall be borne by the Central Government which would also provide the requisite infrastructure therefor. One test shall be held for all the students taking admission throughout the country. This order is passed keeping in view the fact that now one common entrance test is held for admission against 25% of all-India quota and other tests are being held by the respective universities. Disparities in such tests should be done away with and merit of the students should be judged on the basis of one test held therefor.
74. AIIMS is an institution of excellence. It is a class by itself and pride. We are, therefore, of the opinion that in AIIMS and the medical colleges of the Central University, merit should have primary subject of course to institutional preference to the extent of 50% of the total seats in the MBBS course. In all other respects, the decisions of this Court in AlIMS Students' Union case, (2002) 1 SCC 428, shall operate".
Going by the above decision, the Supreme Court has held that grant of institutional preference as such would not militate against Article 14 of the Constitution of India, but the same would be reasonable only if it is confined to below 50%. Since this decision upholds AI1MS Students' Union case in all other respects, I may refer to that case, which is a three Bench decision, as to under what circumstances such a reservation could be justified. In paragraph 59, it is stated as follows:
...One who justifies reservation must place on record adequate material, enough to satisfy an objective mind judicially trained, to sustain the reservation, its extent and qualifying parameters....
In view of the above decision, I went through the counter affidavit of the 3rd respondent, who prescribed the institutional preference for ascertaining the reasons justifying such preference. I could not find any. The counter affidavit itself is very brief. The only reasoning given is that the selection method and prospectus have been made by a board which included 15 Heads of the Departments of the colleges and that board decided to make selection procedure more transparent, which is the reason for the decision to consider the marks of the MBBS course for assessment of the candidate fixing weightage marks for diploma in the concerned subject, centralised entrance test and institutional preference. The fact that weightage was prescribed by a team including 15 Heads of the Departments by itself may not be conclusive of the justifiability of the prescription itself. The 3rd respondent has not even attempted to explain as to the reasons which promoted the selection board either to recognise an institutional preference or to award weightage marks for such institutional preference. In fact, no reasoning is forthcoming as to why separate weightage marks should be given to Medical College, Thiruvananthapuram, Medical College, Alappuzha and other Government Medical Colleges and Universities in Kerala, in spite of the fact that all the Medical Colleges are owned by the Government of Kerala itself. Of course, the contesting respondents sought to explain this institutional preference and weightage makes on the ground that it is the Government of Kerala which incurs money for paying stipend to these candidates during the period of training and therefore there is nothing wrong in giving institutional preference to the candidates who passed out from the colleges owned by the Government of Kerala. But, even that reasoning does not take into account the different weightage marks given to the Medical College, Thiruvananthapuram, Medical College Alappuzha and other Medical Colleges which are also owned by the Government of Kerala.
15. The petitioners have got a contention that the preference mentioned in the prospectus issued by the 3rd respondent itself does not authorise prescription of weightage marks because, as laid down by the Supreme Court itself, the word 'preference' would only mean preference in case of all other requirements being equal. Counsel referred to two decisions of the Supreme Court namely, Bibhudatta Mohanty v. Union of India and Ors. and Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors. . In Bibhudatta Mohanty's case, the Supreme Court, in paragraph 12, held as follows:
...However, the preference clause for higher qualification does not mean that irrespective of fulfillment of other norms SSC passed have to be preferred. Where any rule or guideline provides preference in respect of some higher qualification, it only means that all other requirements being equal, aperson possessing higher educational qualification will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment.
In Srinivasulu's case, again, the Supreme Court held as follows in paragraph 10:
....the word "preference" in our view is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all-round merit, if had to be adjudged in that manner only, what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. The "preference" envisaged in the Rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum education qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority meritwise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using additional qualification as tilting factor, in their favour vis-a-vis others in the matter of actual selection.
16. Of course, a distinction can be drawn in the sense that in those cases, the candidates had undergone a selection test which is absent in the particular case. However, I do not think that that is of much importance in so far as the Supreme Court categorically explains the word "preference". Of course, one could have understood if a particular number of seats not exceeding 50% as permitted by the Supreme Court in the decision of Saurabh Chaudri's case, was set apart for students who obtained MBBS through Colleges owned by the State of Kerala uniformly. But that is not what has been done here. An overwhelming marks of 10 out of a total of 100 has been gratiously awarded to less meritorious students only on the ground that they passed MBBS through particular colleges. The question of grant of weightage of marks and the extent of justifiability of the same itself were subject matter of two decisions of the Supreme Court. The first is that of State of Rajasthan and Anr. v. Dr. Ashok Kumar Gupta and Ors. . That case related to admission to postgraduate course affiliated to Rajastan University. There are 5 such medical colleges at 5 different centres in Rajasthan. The admission was based on a competitive examination. This examination was common to all medical colleges. It was provided that successful candidates were entitled to addition of 5% marks in the percentage of marks by way of institutional preference in the sense preference depends on the particular medical college from which the concerned candidate has passed final MBBS examination. It was this college-based institutional preference which gave rise to the said case. In paragraph 6 of the said judgment, the Supreme Court held as follows:
6. The fortunes of the candidates would thus undergo a sea change. Those who are more meritorious having secured more aggregate marks than others would not get admission to PG courses anywhere in Rajasthan, whereas those with lesser merits would get admission by reason of the 5 per cent collegewise preference. To take the case of the appellants, they having secured aggregate marks of 1650,1638,1624,1617and 1613have not been able to secure admission in any discipline. As against this candidates having secured such less marks already secured admission in one or the other of the five medical Colleges....
Thereafter, for illustration, after tabulating the statements of marks secured by the candidates, the court in paragraphs 7 and 8, again held as follows:
7. What emerges from the above statements is that while one of the appellants who has secured 1650 marks in the common competitive examination has not been able to secure admission in PG course in any college in Rajasthan, a candidate who secured about 100 marks less (1548 marks) in the very same examination has been able to secure admission. And the rest of the appellants have not been able to secure admission anywhere though they have demonstrably secured more marks and are more meritorious than the aforesaid 22 persons. This analysis exposes the extremely unfair and unjust impact of the impugned rule. This factor coupled with the four factors highlighted earlier leave no room for doubt that while on the fact of it the impugned rule appears to extend or accord equal treatment of 5 per cent weightage to the students of each of the five Medical Colleges, in actual operation it brings about oppressive and innoxious inequality. Once the veil of 'apparent' equality is pierced, the ugly inequality stares one in the eyes which are opened to the offensive 'reality'. Such being the position the constitutional validity of the impugned rule cannot be sustained. It has to be buried unceremoniously as unconstitutional being violative of Article 14 of the Constitution of India.
8. The High Court has struck down as unconstitutional the impugned provision embodied in note(d)(ii) of Ordinance 278-E mainly on the ground that coupled with the institutional preference accorded under Clause (i) it would virtually amount to making 100 percent reservation in favour of the students of the Rajasthan University in the sense that no other student of any other University would have any reasonable chance to secure admission to those courses relying on the principle enunciated in Nidamarti Maheshkumar v. State of Maharashtra . The reasoning is reflected in the following passage extracted from paragraph 25 of the judgment under appeal:
Thus after having given 5 per cent weighage on the ground of institutional preference that a candidate has passed his final MBBS examination from the University of Rajasthan, further 5 per cent weightage on the ground that he has passed his MBBS final examination from the Medical College where he seeks admission, in post graduate course, is unreasonable and arbitrary and does not stand the touchstone of Article 14 of the Constitution. If 10 percent weightage is given as aforesaid it will come to 275 marks and with this increase in marks no candidate from University other than University of Rajasthan can get admission to post-graduate course in any one of the medical colleges. It is against the equality clause as it amounts to cent per cent reservation as 10 per cent weightage in admission to post-graduate course to a student, 5 per cent weightage on the University basis and 5 per cent on the institutional basis, amounts to total exclusion of candidates of other Universities. We have already referred to the admission for the year 1986 and 1987 and at the cost of repetition we may say that a look at Schedules 'A' and 'B' regarding admission in SMS Medical College, Jaipur in post-graduate courses for the years 1986 and 1987 respectively will show that not a single candidate from the University other than University of Rajasthan could seek admission.
17. In the decision of Secretary (Health), Department of Health & EW and Anr. v. Dr. Anitha Puri and Ors. , the Supreme Court was considering the question as to whether the award of 2 1/2 marks by the Public Service Commission for recruitment to the post of Dental Officers for higher qualification can be said to be arbitrary. While answering in the negative, the Supreme Court held thus:
....When the Public Service Commission is required to select some candidates out of a number of applicants for certain posts, the sole authority and discretion is vested with the Commission. The Commission is required to evolve the relative fitness and merit of the candidate and then select candidates in accordance with such evaluation. If, for that purpose, the Commission prescribes marks for different facets and then evaluates the merit, the process of evaluation cannot be considered to be arbitrary unless marks allotted for a particular facets is on the fact of it excessive. Weightage to be given to different facets of a candidate as well as the viva voce test vary from service to service depending upon the requirement of the service itself.
In the decision of Asok Kumar Gupta, the Supreme Court frowned upon the award of 10% marks to institutional preference. In the second case also, the Supreme Court emphasised the fact that the marks allotted for a particular facet should not be on the face of it excessive.
18. Now, let us examine the question as to whether the 10, 8 and 5 weightage marks given to the students who passed MBBS course through Medical Colleges in Kerala is excessive or not. A conclusive index in this regard would be the overall results of this particular selection itself, based on such weightage. The 17th respondent in WPC No.1908/2006 has, along with I.A.No. 11021/2006 in which he sought to implead himself as a respondent in this Writ Petition, produced the rank list of selected candidates for Dip NB Training 2006 July Session in respect of specialities in Medical College, Thiruvananthapuram. It contains the rank list for selection to 14 specialities. In the speciality to Anaesthesiology, there were 2 seats. Both seats went to the students who passed MBBS examination from Medical College, Thiruvananthapuram. In D & V, there were three seats. The first rank went to a student from Medical College Thrissur and the other two went to students from Medical Colleges, Thiruvananthapuram. In the speciality of ENT, there were 4 seats. All the seats went to students from Medical College, Thiruvananthapuram. In Department of Medicine, there were 4 seats out of which two went to students from Medical College, Thiruvananthapuram, one to a student from Medical College, Alappuzha and the last went to a student of Pariyaran Medical College, Kannur. In the speciality of Neurology (Medical), there is only one seat, which went to a candidate from the Medical College, Thiruvananthapuram. In a speciality of O & G, there were 9 seats out of which 8 went to students from Medical College, Thiruvananthapuram and one to a student from the Medical College, Alappuzha. In the speciality of Orthopaedics, there were 5 seats, out of which 4 went to students from Medical College, Thiruvananthapuram and one to a student from Medical College, Alappuzha. In the speciality of Paediatrics, which is one of the speciality, admission to which is under consideration in these Writ Petitions, there are 4 seats all of which went to students from Medical College. Thiruvananthapuram. The next is Pathology, which is usually not a very attractive speciality as it is non clinical. There was only one seat which went to a student who passed from Dr. BAM Medical College, Marathwada. Again, a single seat speciality of Physical Medicine and Rehabilitation went to a student from Medical College, Thiruvananthapuram. In Psychaitry, there were 6 seats out of which the first went to a student from Medical College, Thiruvananthapuramand others went to students who passed from Colleges outside Kerala. In Radiodiagnosis. admission to which is under consideration in the second Writ Petition herein, out of 2 seats available, one went to a student from Medical College. Alappuzha and the other went to a student from Medical College. Thiruvananthapuram. A seat in the speciality of Radiotherapy was given to a student from Medical College, Thiruvananthapuram. Out of the 5 seats in General Surgery, three went to students from Medical College, Thiruvananthapuram, one to a student from Pariyaram Medical College and the last went to a student from a Medical College, in Salam. A look at the above result would conclusively show that there was a near total exclusion of students who passed from Universities and Colleges outside Kerala. From among the students who passed from colleges and Universities in Kerala, much more than 50% of the seats went to students from Medical College, Thiruvananthapuram. by any stretch of imagination, this kind of institutional preference would not pass muster in the touchstone of reasonableness. Even the Supreme Court in Saurabh Chaudhri's case, put the upper limit at 50%. Here, it went much far beyond that. As such, the weightage given in the name of institutional preference, which is under question, would be any stretch of imagination certainly offend Article 14 of the Constitution of India.
19. As such, I am convinced that the institutional preference and weightage given as evidence by Ext.P7 are totally beyond the permissible limits of such institutional preference judging by the dictum laid down by the Supreme Court allowing such institutional preference.
20. The party respondents have got a case that the petitioners should be nonsuited in the ground of estoppel. According to them, the petitioners wrote the examination on the basis of Ext.P5 prospectus fully knowing about the conditions and eligibility criteria to be followed in the matter of admission. After undergoing the selection process with open eyes, the petitioners cannot turn around and challenge the process itself, is the contention raised by the counsel for the party respondents. They also rely on Supreme Court decisions on the subject such as Madanlal and Ors. v. State of J. & K. and Ors. and Union of India and Anr. v. N. Chandraskharan and Ors. . Party respondents also referred to one of my own decision in Ajit George v. State of Kerala wherein, in the light of the Supreme Court decision in K.H. Siraj v. High Court of Kerala and Ors. reported in 2006 (2) KLT 923, I had upheld a similar contention. Although the proposition of law cannot be disputed, I do not think that the contention is well found on merits for the following reasons.
21. Ext. P5 is the prospectus. It does not contain any stipulation for granting weighage of marks for institutional preference, although the same provides for institutional preference. The extent of preference is also not mentioned therein. The petitioner in W.P.(C) No.19808/2006 filed the Writ PEtition on 26.7.2006. He was made aware of the weighage of marks as well as rank list only by Ext.P7 dt. 27.7.2006. As such, the Rule regarding weighage was not either published or made known to the petitioners at any time before selection. That being so, the dictum of the above decisions cannot have any application to the case at hand and the petitioners cannot be nonsuited on that ground.
22. The party respondents as well as the 3rd respondent have got a case that the petitioners have approached this Court with unclean hand in so far as they have not disclosed the fact that the petitioners also were awarded weighage of marks in diploma in the concerned subject. I am of opinion that the petitioners cannot be accused of the same, as they became aware of the weightage for diploma in the concerned subject only from Ext.P7, since the prospectus did not contain any stipulation of weightage of marks in diploma in the concerned subject. In any event, I have already held that the grant of weightage for diploma in the concerned subject would be in accord with the eligibility criteria prescribed by Clause 5.1.5 of the Bulletin of Information issued by the National Board of Examinations. As such I am not inclined to countenance the contention of the respondents in this respect also.
23. A cumulative result of the above discussion is that the award of 10,8 and 5 marks for institutional preference given by the 3rd respondent to students from Medical Colleges and Universities in Kerala, particularly to students of Medical College, Thiruvananthapuram does not satisfy the test of reasonableness in the context of Article 14 of the Constitution of India, and therefore, the same is unconstitutional and liable to be set aside. I do so. However, since only two candidates in the specialities of Pediatrics and Radio Diagnosis have approached this Court, I am limiting relief to the selection in the said specialities.
24. In the result, I quash the rank list in the specialities of Pediatrics and Radio Diagnosis and direct the 3rd respondent to recast the rank list in the specialities of Pediatrics and Radio Diagnosis excluding the weightage of marks as institutional preference given to students of Medical Colleges and Universities in Kerala and complete the admission process accordingly by giving admission to those candidates who become entitled for admission on the basis of the ranks obtained by them on recasting of the rank list as above and cancelling the admissions of those who are found to be not entitled to admission as per their ranks in the revised rank list so prepared. This shall be done forthwith. The Writ Petitions are disposed of as above.