Gujarat High Court
Sheetal Yeshwantkumar Parmar vs State Of Gujarat & on 22 August, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
SHEETAL YESHWANTKUMAR PARMAR....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/12163/2013 CAV JUDGEMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12163 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
================================================================ SHEETAL YESHWANTKUMAR PARMAR....Petitioner(s) Versus STATE OF GUJARAT &
1....Respondent(s) ================================================================ Appearance:
MR AJ YAGNIK with MR SAHIL M SHAH, ADVOCATE for the Petitioner No.1 MS VACHA DESAI, AGP for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/08/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This writ-application under Article 226 of the Constitution of India is at the instance of a student who has been denied admission in the professional courses such as M.B.B.S./B.D.S. on the ground of not having studied in a C.B.S.E. school located within the State of Gujarat, and has prayed for the following reliefs :
(A) To hold and declare that Rule 5(A)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2013 as illegal and ultra vires the Constitution of India in so far as it makes a student of Gujarati origin and domicile of Gujarat ineligible from getting admission in the professional courses such as M.B.B.S./B.D.S. on the ground of not having studied in CBSE Schools located in the State of Gujarat and be pleased to quash and set aside the same;
(B) to direct the Respondents to consider the case of Petitioner for admission to the professional courses including admission into M.B.B.S. course, on the basis of her merit, and in accordance with law;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the Respondents to consider the case of Petitioner and include her in the merit list on the basis of her own merit and grant admission to her in the professional courses including the course of M.B.B.S. in accordance with law;
(D) Pass such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted.
The facts giving rise to the present application may be summed up thus :
The petitioner belongs to a Scheduled Caste category and was born in Ahmedabad (Gujarat). The father of the petitioner also belongs to the State of Gujarat and is working with Indian Oil Corporation. The father of the petitioner at present has been posted at Gauhati, Assam.
The father of the petitioner was earlier working in the State of Gujarat and thereafter was transferred to Mumbai. From Mumbai, he was transferred to Gauhati.
The petitioner studied in a C.B.S.E. affiliated Delhi Public School in Gauhati from 25th June 2010 to 28th May 2012 and successfully cleared her Standard-12 (AISSCE) in the year 2011-12. The petitioner also appeared and successfully cleared GUJCET as well as NEET. Having cleared GUJCET, the petitioner applied for admission to the M.B.B.S. course. However, the said form was not processed on the ground that the petitioner had not cleared the Standard-12 examination from a school situated in the State of Gujarat and the petitioner was not exempted from the said requirement provided under the Gujarat Rules.
According to the petitioner, though Rules 5(1) and (2) of the Gujarat Rules are aimed at facilitating the children of officers of the State of Gujarat and All India Services who are posted out of Gujarat for the reasons beyond their control, to secure admission in the institutions situated in the State of Gujarat, the same are required to be read, construed and interpreted to include even the officers/personnels of the Government Public Sector Undertakings like Indian Oil Corporation and other Corporations so as to uphold its validity. According to the petitioner, the discriminatory treatment to the officers of the Public Sector Undertakings of the Government is violative of Article 14 of the Constitution of India and the exclusion of the officers of the Indian Oil Corporation has no rationale. In other words, according to the petitioner, there exists no nexus with the object sought to be achieved by excluding the children of the employees of a Public Sector Undertakings like Indian Oil Corporation.
Mr.Anand Yagnik, the learned counsel appearing with Mr.Sahil M.Shah for the petitioner, vehemently attacked the Gujarat Rules on the ground that the provisions contained in the said Rules excluding the original residents of Gujarat from the process of selection for admission in the medical colleges in Gujarat simply on the ground that they did not pass Standard-12 examination from a school within the State of Gujarat is violative of Article 15 of the Constitution of India and is also arbitrary. Mr.Yagnik submits that if a student who studied throughout his/her career in Gujarat but if his/her father was transferred for doing service to the Public Sector Undertaking of the Government, when he/she studied in Standard-12, such a student will be deprived of a benefit of admission, whereas a student who is prosecuting his/her studies throughout his/her career outside Gujarat but if his/her father was transferred for doing service within the State of Gujarat at a time when he/she was prosecuting his/her studies at Standard-12 and for that reasons, if a student passes Standard-12 examination from Gujarat, such a student will get the benefit of admission. This, according to Mr.Yagnik, has no rational basis. Secondly, it is contended that when the benefit of admission is given to the children of the members of the Indian Administrative Service, Indian Police Service, Indian Forest Service, etc. though their children have passed from outside the State of Gujarat, there is no reason whey the said benefit should not be given to children of persons employed by a Public Sector Undertaking like Indian Oil Corporation.
It is contended by Mr.Yagnik that Rule 5(A)(ii) of the impugned Rules is also contrary to the eligibility criteria laid down for the candidates to appear for Gujarat Common Entrance Test. Relying on clause 2.7, Mr.Yagnik submitted that a candidate who is a son or a daughter of an officer/employee who belong to the State of Gujarat but performing his duty in other States as the officer/employee of the Central/State Government, Military Forces or the Boards/Corporations governed by the Central/State Government, and who have passed Standard-12 Science Stream examination conducted by the Higher Secondary Education Board situated in the State in which such employee is performing his duties or the student who has filled in the application form for appearing in the examination of Standard-12 Science Stream or the student going to appear in the examination of Standard-12 Science Stream in the very year in which the student has filled in the application form for Common Entrance Test is eligible.
According to Mr.Yagnik, there is an apparent inconsistency between the eligibility criteria of the impugned Rules and the eligibility criteria prescribed for the students of GUJCET. Even though the petitioner is permitted to appear for GUJCET and the GUJCET result is taken into consideration for admission into medical colleges of Gujarat, the petitioner would not be entitled for admission in the medical colleges of the State of Gujarat.
Mr.Yagnik submitted that the rule of reservation, whether it is based on residence requirement or institution-wise, must be administered on moderation, more particularly, in the matter of of admission to institutions of medicines. According to Mr.Yagnik, the rule of no admission for outsiders is detrimental to the unity and integrity of the country and is a potential threat to the concept of quasi-federalism on which this country is edificed.
Mr.Yagnik placed strong reliance on the following decisions:
Meenakshi Malik v/s. University of Delhi and others, reported in (1989)3 SCC 112;
Vishakha Mahendra Patel v/s. State of Gujarat, reported in 2013(1) GLR 11;
Dr.Pradeep Jain and others v/s. Union of India and others, reported in (1984)3 SCC 654.
Therefore, the only question that arises for determination in this Appeal is whether the Gujarat Rules is violative of any of the provisions of the Constitution of India.
In order to appreciate the aforesaid question, it will be profitable to refer to rules 5, 6 and 8 of the Gujarat Rules, which are quoted below:
5.
Eligibility for Admission-
(1)For the purpose of admission, a candidate shall have-
(A) Passed the qualifying examination with B-group or AB-group from-
(i) the Gujarat Board; or
(ii) the Central Board of Secondary Education Board provided that the school in which the candidate has studied, should have been located in the State of Gujarat; or
(iii) the Council of Indian School Certificate Examinations, New Delhi Board provided that the school in which the candidate has studied should have been located in the State of Gujarat:
Provided that the candidate seeking admission in Ayurveda shall have passed either the qualifying examination or the 10th examination with Sanskrit subject, and (B) Appeared in the Gujarat Common Entrance Test conducted in the current academic year.
(2)(a) Sons and Daughters of All India Services Officers viz. Indian Administrative Service, Indian Police Service and Indian Forest Service alloted to the Gujarat State and serving outside the Gujarat State on deputation, and
(b) Sons and daughters of Gujarat Government Employees who have been posted outside the Gujarat State for the Administrative reasons, shall be treated at par with the candidates under sub-rule (i) provided they have passed the qualifying examination from the respective state Board and he/she must have appeared in the Gujarat Common Entrance Test conducted in the current academic year and obtained marks under sub-rule (3) of rule 12. In such cases, his candidature shall be included in the Gujarat Board merit list referred to in clause (a) of sub-rule(2) of rule 11. If such a candidate has passed the qualifying examination from the Central Board of Secondary Education or the Council of the Indian School Certificate Examination, New Delhi Board his candidature shall be included in the merit list of respective Board referred to in clause
(b) of said sub-rule (2).
(3).
A candidate who has,
(i).
Studied under Jawahar Navodaya Vidyalaya Scheme upto Standard VIII in any of the schools located in the State of Gujarat.
(ii).
thereafter studied in any of the schools located out of the State of Gujarat under the said scheme.
(iii).
passed qualifying examinations from a Navodaya Vidyalay located outside Gujarat State and
(iv).
appeared in the Gujarat Common Entrance Test conducted in the current academic year and obtained marks under sub-rule (3) of rule 12 shall be eligible for admission and his candidature shall be included in the merit list of the Central Board as prescribed in clause (b) of sub-rule (2) of rule 11.
Explanation.-
Jawahar Navodaya Vidyalaya Scheme means the Jawahar Navodaya Vidyalaya scheme started during the year 1985-86 by the Government of India in accordance with the National Policy of Education. The scheme is managed by Navodaya Vidyalaya Samiti, an autonomous organization under the department of Education, Ministry of Human Resource Development.
(4).
A candidate who has passed the qualifying examination after appearing in the supplementary examination conducted by the Board shall not be eligible for admission in the current academic year.
(5).
A candidate who has secured admission under these rules in any year shall not be eligible for further admission to any course until the period within which he/she might have completed the course in which he has secured admission.
Explanation.-
Candidate who had taken admission after the implementation of the Act shall not be eligible for further admission to any course until the period within which he/she might have completed the course in which he/she has secured admission i.e. candidates admitted in academic year 2008-09 and onwards .
6. Eligibility Criteria.-
The following shall be the criteria for admission of a candidate to the Professional Medical Courses.
A. For Government Seats and Management Seats.
(1).
A candidate shall be an Indian citizen:
Provided that the candidate whose parents are origin of India, but he/she does not hold Indian citizenship and has applied for Indian citizenship, shall have to produce the proof of submission of the application to the Admission Committee before the date of interview. Such candidates shall be admitted provisionally subject to submission of the certificate of their having acquired the Indian citizenship on or before 31st December of the current year, failing which their provisional admission shall be cancelled without giving any notice thereof.
(2).
A candidate shall have completed 17 years of age on the 31st December of the Academic Year for which the admissions are being conducted:
Provided that in case the under age candidate, he/she may be granted admission at the time of counselling but his/her academic term shall start from the day when he/she completes 17 years of age and his/her term in the concerned Professional Educational College or Institution shall commence after completion of age of 17 years.
(3).
A candidate shall be eligible for admission under the provisions of these rules.
B. For Non-Resident Indian seats;-
(1).
(i). A candidate shall be Non-Resident Indian, or
(ii).
his/her parents or in absence of his/her parents, his/her legal guardian shall be Non-Resident Indian, or
(iii).
he/she shall be dependent of Non-Resident Indian for the educational purposes and shall have necessary proof/evidence in support of his dependent.
(2).
A candidate shall have completed 17 years of age on the 31st December of the Academic Year for which the admissions are being conducted.
Provided that in case of under age candidate, he/she may be granted admission at the time of counselling but his/her academic term shall start from the day when he/she completes 17 years of age and his/her term in the concerned Professional Medical Educational College or Institution shall commence after completion of age of 17 years.
(3).
A candidate shall be eligible for admission under the provisions of these rules.
8. Reservation of Seats.-
(1).
Fifteen percent (15%) of available seats for admission in each Government Medical and Dental College recognized by the Medical Council of India and the Dental Council of India respectively shall be reserved for candidates of All India Entrance Examination (A.I.E.E.) who are allotted for admission by the Director General of Health Services, Government of India, New Delhi.
(2).
After deduction of the seats referred to in sub-rule (1), the remaining Government seats shall be reserved for the candidate who are origin of Gujarat and falling under the following categories, namely:-
(a).
Scheduled Castes : 7%
(b).
Scheduled Tribes : 15%
(c).
Socially and Educationally backward classes including Widows and Orphan of any caste : 27% Explanation-
The reservation of the seats shall be for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes including Widows and Orphan of any caste recognized as such in the State of Gujarat and not for those who have migrated from other States.
(3).
Ten percent seats of the total available Government seats in the Nursing Colleges shall be reserved for male candidates.
(4).
A candidate seeking admission on reserved seat shall be required to produce a Certificate of Caste from which he originates.
Provided that the candidates belonging to Socially and Educationally Backward Class shall be required to produce a certificate to the effect of non-inclusion in Creamy Layer in addition to the caste certificate.
(5).
No caste certificate shall be valid unless it is duly stamped, signed and issued by the authority empowered by the Government of Gujarat.
(6).
No certificate to the effect of non-inclusion in Creamy Layer shall be valid, unless it is duly stamped, signed and issued by the authority empowered by the Government of Gujarat. Such certificate shall have been issued on or after the 1st April of the academic year in which the candidate is seeking admission.
(7).
If a candidate fails to submit the certificates as required under sub-rule (2) within the stipulated time, his candidature shall be considered for admission under unreserved category.
(8).
If a candidate of reserved category gets admission on unreserved seat in order of merits, he may be given admission on the unreserved seat according to his preference.
(9).
The admission of a candidate of a reserved category on a reserved seat shall be valid subject to the verification of cast certificate by the authority empowered by the State Government in this behalf. In case the caste certificate is found invalid on verification, he/she shall not have right to claim his admission on reserved seat and if he/she has been already granted admission, such admission shall be cancelled.
(10).
After granting admission to all the candidates of reserved categories on reserved seats, the reserved category seats remaining vacant shall be transferred to the unreserved category seats.
It will be also necessary to refer to the provisions contained in Regulation No.4 of the Regulations framed by the Medical Council of India, which, according to the learned counsel appearing for the appellant, is in conflict with the Gujarat Rules.
4. Admission to the Medical Course Eligibility Criteria:
No candidates shall be allowed to be admitted to the Medical Curriculum of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until:
1.
He/She shall complete the age of 17 years on or before 31st December, of the year admission to the MBBS Course (1. Substituted vide notification dated 29.05.1999).
2. He/She has passed qualifying examination as under:-
1.
The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of physics, Chemistry, Biology and Mathematics or any other elective subjects with English at a level not less than core course of English as prescribed by the National Council of Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education.
Note:
Where the course content is not as prescribed for 10+2 education structure of the National Committee, the candidates will have to undergo a period of one year pre-professional training before admission to the Medical colleges;
Or
2.
The intermediate examination in science of an Indian University/Board or other recognised examining body with Physics, Chemistry and Biology which shall include a practical test in these subjects and also English as a compulsory subject.
Or
3. The pre-professional/pre-medical examination with Physics, Chemistry and Biology, after passing either the higher secondary school examination, or the pre-university or an equivalent Examination. The pre-professional/pre-medical examination shall include a practical test in Physics, Chemistry and Biology and also English as a compulsory subject.
Or
4. The first year of the three years degree course of a recognized university, with Physics, Chemistry and Biology including a practical test in three subjects provided the examination is a University Examination and candidate has passed 10+2 with English at a level not less than a core course.
Or
5. B. Sc. Examination of an Indian University, provided that he/she has passed the B. Sc. Examination with not less than two of the following subjects Physics, Chemistry and Biology [Botany, Zoology) and further that he/she has passed the earlier qualifying examination with the following subjects-Physics, Chemistry and Biology and English Or
6. Any other examination which, in scope and standard is found to be equivalent to the intermediate science examination of an Indian University/Board, taking Physics, Chemistry and Biology including practical test in each of these subjects and English.
Note.
The pre-medical course may be conducted either at Medical College, or a science College.
Marks obtained in Mathematics are not to be considered for admission to MBBS Course.
After the 10+2 course is introduced, the integrated courses should be abolished.
Selection of Students:
The selection of students to medical college shall be based solely on merits of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country.
1.
In States, having only one Medical College and one university board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration;
2. In states, having more than one university/board, examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies.
3. Where there are more than one college in a State and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges;
4. A competitive entrance examination is absolutely necessary in the cases of Institution of All India character.
The constitutional validity of the impugned Rules fell for its consideration before this very Bench in the case of Vishakha Mahendra Patel (supra).
In that case, the father of the petitioner was a resident of village Vagharota, Taluka Prantij, District Sabarkantha in the State of Gujarat. The father of the petitioner had lastly studied at Sainik School, Balachhadi, Jamnagar, from which he was selected to the National Defence Academy in the Army as an officer. Since the father of the petitioner of that case was working in the Army, he was posted at different places including border areas and thus, the petitioner of that case studied at different schools staying with her father while he was working at different places with the Army. The father of the petitioner of that case took voluntary retirement on 4th April 2010 when the petitioner was studying in Standard-12 in a school, namely, Tagore International School, Delhi. She continued her studies in the same school and passed her Standard-12 examination in March 2011 scoring 90.60% marks in Science Stream from the Central Board of Secondary Education, Delhi. The petitioner of that case thereafter appeared for GUJCET examination in the year 2011, but having obtained less than 50% marks, was not qualified for admission to M.B.B.S. course. In the next year, namely, 2012, the petitioner of that case again appeared for GUJCET and cleared the said examination scoring 78.75 marks out of 120. The petitioner of that case submitted a form to the respondent of that case for M.B.B.S. course, but was denied admission on the ground that she had not studied in the State of Gujarat in Standard-11 and Standard-12. In such circumstances, the petitioner of that case challenged the constitutional validity of Rules 5(1) and (2) of the Rules for admission to M.B.B.S./B.D.S. Courses in Government, Municipal, Grant-in-Aid and Self-Finance colleges.
This very Bench, after considering the issue at length, held in paragraphs-9, 10 and 11 as under :
9.
After hearing the learned counsel for the parties and after going through the various authorities placed before us, we find that so far as the reservation by the State in the Medical Colleges is concerned, the Supreme Court, in the case of Pradeep Jain v. Union of India [supra] initially laid down as a proposition of law that reservation of seats for residents of the State or students of the same University would depend upon the extent or limit of such reservation. In the said decision, the Supreme Court laid down that maximum limit of reservation for MBBS/BDS course should be fixed at 70% which is subject to three-yearly review by Indian Medical Council and Indian Dental Council for deciding reduction in that limit. However, the said decision was reviewed by the Supreme Court on the application of the Union of India and it appears from the decision of the Supreme Court in the case of Dinesh Kumar (II) vs. Motilal Nehru Medical College [supra] that not less than 15 per cent of the total number of seats in each medical college or Institution, without taking into account any reservations validly made, shall be filled on the basis of All India Entrance Examination. According to the Supreme Court, this new formula was fair and just and brought without placing the students in one State in an advantageous or disadvantageous position as compared to the students in another State. In the penultimate paragraph of the said judgment, the Supreme Court further made it clear that the said judgment should not be construed as in any manner prejudicing or affecting or detracting from any rule, regulation or other provision entitling students from other States including the States of Andhra Pradesh and Jammu & Kashmir to be considered for admission to the remaining 85 per cent seats for the MBBS/BDS course. The Supreme Court also directed the Government of India to consider whether it would not be desirable to set up Regional Institutes of Medical Sciences where admission would be open to students from all over the country and where a high standard of excellence would be maintained. According to the Supreme Court, if such Regional Institutes of Medical Sciences are set up providing opportunity to students from all over the country to compete for admission on the basis of merit, it may become unnecessary to reserve 15 per cent of the total number of seats for admission to the MBBS/BDS course in each Medical College or Institute on the basis of All India Entrance Examination.
10. Thus, so far as the admission in MBBS/BDS courses are concerned, the law as it stands as settled by the Supreme Court is that the State Government is given right to reserve 85% seats based on merits restricting it only to the students who have passed 12th standard examination from any Institute situated within the State.
11. In the cases before us, we find that by the Gujarat Rules, the aforesaid direction given by the Supreme Court has been maintained. We, thus, find that the reservation of remaining 85% seats restricting to only students who have passed the 12th standard examination from the Institutes situated within the State of Gujarat cannot be held to be invalid.
Mr.Yagnik submitted that he was conscious of the decision in the case of Vishaka Mahendra Patel (supra) delivered by this very Bench, but he disputed the correctness of the findings recorded by us in paragraph 10 of our decision in the case of Vishaka Mahendra Patel (supra).
Mr.Yagnik pointed out to us that our observations to the effect that the State Government is given right to reserve 85% seats based on merits restricting it only to the students who have passed Standard-12 examination from any institute situated within the State has been approved by the Supreme Court, is not correct. According to Mr.Yagnik, the decision of the Supreme Court in the case of Dr.Pradeep Jain (supra) does not lay down such a proposition of law on which we placed reliance while deciding the case of Vishaka Mahendra Patel (supra).
We are afraid, we are not impressed by such submission of Mr.Yagnik as the following observations of the Supreme Court in the case of Dr.Pradeep Jain (supra) are very clear in that regard.
...The Court has also by its decisions in D.P.Joshi v/s. State of Madhya Bharat, AIR 1955 SC 334 and N.Vasundara v/s. State of Mysore, AIR 1971 SC 1439 sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to medical colleges. These decisions which all relate to admission to MBBS course are binding upon us and it is therefore not possible for us to hold, in the face of these decisions, that residence requirement in a State for admission to MBBS course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity contained in Article 14. We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence requirement in a State can be introduced as a condition for admission to the MBBS course.
Thus, in our opinion, the issue as regards the constitutional validity of the impugned Rules stands concluded by our decision in the case of Vishaka Mahendra Patel (supra) and we propose to follow our decision in the present case also.
It will be profitable for us to refer and rely on one another decision of the Supreme Court in the case of Anant Madaan v/s. State of Haryana and others, reported in AIR 1995 SC 955. In that case an almost identical rule like the one with which we are dealing with fell for the consideration at the end of the Supreme Court.
In that case, the petitioners before the Punjab & Haryana High Court had challenged the eligibility conditions of 1994 Rules in so far as they require that candidates should have studied for the 10th, 11th and 12th Standards as regular candidates in recognized institutions in Haryana. They also challenged a Corrigendum which was issued by the State of Haryana granting eligibility to the children/wards of the employees belonging to Haryana who had studied 10th, 10+1 and 10+2 classes as regular candidates in recognized institutions in Chandigarh subject to their fulfillment of other eligibility conditions and further providing that they should submit a certificate of Haryana residence/domicile as per the State Government Rules along with an affidavit by the parents/ guardian that the candidate had not appeared or was not appearing in the entrance test of any State or Union Territory other than Haryana.
It was submitted before the Supreme Court by the appellants of that case that the condition which required the candidates to have passed their 10th, 10+1 and 10+2 class examinations from recognized institutions in Haryana was arbitrary and discriminatory because it excluded the children of parents who may be residence of or who may be domicile in Haryana but who may have sent their children to schools or colleges outside Haryana for a variety of reasons. The challenge was also on the ground of hardship. In such circumstances, the Supreme Court held and observed as under :
8.
In view of the above facts, we have to consider whether the condition requiring a candidate to have studied in 10th, 10+1 and 10+2 classes in a recognised institution in the State of Haryana, can be considered as arbitrary or unreasonable. It is by now well settled that preference in admissions on the basis of residence, as well as institutional preference is permissible so long as there is no total reservation on the basis of residential or institutional preference As far back as in 1955, in the case of D.P.Joshi v. State of Madhya Bharat, (1955) 1 SCR 1215 : ( AIR 1955 SC 334), this Court, making a distinction between the place of birth and residence, upheld a preference on the basis of residence, in educational institutions.
9. In the case of Jagdish Saran v. Union of India (1980) 2 SCR 831: (AIR 1980 SC 820), this Court reiterated that regional preference or preference on the ground of residence in granting admission to medical colleges was not arbitrary or unreasonable so long as it was not a wholesale reservation on this basis. This Court referred to various reasons why such preference may be required. For example, the residents of a particular region may have very limited opportunities for technical education while the region may require such technically qualified persons. Candidates who were residents of that region were more likely to remain in the region and serve their region if they were preferred for admission to technical institutions in the State, particularly medical colleges. A State which was short of medical personnel would be justified in giving preference to its own residents in medical colleges as these residents, after qualifying as doctors, were more likely to remain in the State and give their services to their State. The Court also observed that in the case of women students, regional or residential preference may be justified as their parents may not be willing to send them outside the State for medical education. We, however, need not examine the various reasons which have impelled this Court to uphold residential or institutional preference for admission to medical colleges. The question is settled by the decision of this Court in Dr.Pradeep Jain v. Union of India, (1984) 3 SCR 942: AIR 1984 SC 1420). This Court has observed in that judgment ( at page 981) (of SCR): (at p-1439 of AIR) :
"We are, therefore, of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made to equalize opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State..........."
This Court held in that case that reservation to the extent of 70% on this basis would be permissible. This percentage of reservation was subsequently increased to 85% by this Court in the case of Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, (1986) 3 SCR 345:
(AIR 1986 SC 1877). This Court in that case directed an entrance examination on an All India basis for the remaining 15% of seats.
10.In the present case, the reservation which has been made on the basis of candidates having studied for the preceding three years in recognised schools/colleges in Haryana is in respect of these 85% of seats. It excludes 15% seats which have to be filled in on an All India basis. This eligibility criterion, therefore, is in conformity with the decisions of this Court referred to above. It cannot, therefore, be considered as arbitrary or unreasonable or violative of Article 14 of the Constitution.
11. The appellants drew our attention to a decision of this Court in Meenakshi Malik v. University of Delhi, (1989) 2 SCR 858: (AIR 1989 SC 1568), where the father of the candidate was in Government service. He was posted by the Government outside India. As the parents were compelled to go outside India, the children were also required to go with their parents. This Court considered this as a hard case. It held that the qualifying condition that the candidate should have received the last two years of education in a school in Delhi, should be relaxed in that case as the candidate was compelled to leave India for a foreign country by reason of the posting of her parents by the Government to such foreign country. The Court observed that there was no real choice in the matter for such a student and hence the rigour of the condition prescribing that the last two years of education should be received in Delhi should be relaxed in that case.
12. None of the appellants who are before us are in a position similar to that of the appellant in the above case. In fact, the parents of Anant Madaan, Bharat B. Dua and Shalini Jain are in Haryana. In the case of Nandita Kalra the parents have voluntarily taken employment outside the State of Haryana. They are not in the same situation as the parents of Meenakshi Malik, (AIR 1989 SC 1568), (supra). Therefore, the relaxation which was given by this Court in the case of Meenakshi Malik, (supra) cannot be given to any of the appellants before us.
13.The appellants have also cited before us some judgments of the High Courts. We need not, however, examine them since the matter is concluded by the above decisions of this Court. The eligibility condition, therefore, which requires that the candidate should have studied 10th, 10+1 and 10+2 classes from a recognised institution in the State of Haryana is neither arbitrary nor unreasonable and the Punjab and Haryana High Court has rightly upheld the same.
We may only say that the question, whether the State Government can prescribe and make it obligatory for an applicant to have passed the qualifying examination for the purpose of securing admission in M.B.B.S. from the Central Board of Secondary Education provided that the school in which a candidate has studied is located within the State of Gujarat is no more res integra.
In Kumari Chitra Ghosh v/s. Union of India, reported in AIR 1970 SC 35, for the first time reservation in medical colleges requiring institutional qualifications was considered and it was held the Central Government runs the medical colleges therefore it is within the domain of that Government to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis, it is not for the Courts to interfere with the manner and method of making the classification. The classification is permissible and there is nothing wrong in it.
In our opinion, the Rule impugned is not arbitrary, unreasonable or irrational. It is based on an intelligible differentia and there is a nexus between the said classification and the objects for the medical education given in the State of Gujarat. In fact, the said classification is obviously made for the purpose of providing a fair opportunity for medical education to the student community in the State of Gujarat and for the avowed aims and objects to produce basic doctors to provide primary health care to the citizens of the State of Gujarat.
In our opinion, this classification is thus absolutely valid and does not, in any manner, violate the provision of Article 14 of the Constitution of India. Such kind of classification has been expressly approved by the Supreme Court in Dr.Pradeep Jain (supra) while dealing with the question of validity of the wholesale reservation made by some of the State Governments on the basis of domicile or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State. Although the Supreme Court held the wholesale reservation as unconstitutional and void as offending the equality clause enshrined in Article 14 of the Constitution, it observed that the very mandate of the equality clause viewed in the perspective of social justice would justify some extent of reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the University or the State.
Mr.Yagnik also strenuously submitted that his client being a member of a Scheduled Caste is otherwise also eligible for admission considering Rule 8 of the Gujarat Rules which provides for reservation of seats. Mr.Yagnik invited our attention to clause (2) of Rule 8 which states that after deducting 15% of seats for candidates of All India Entrance Examination, the remaining Government seats shall be reserved for the candidates who are origin of Gujarat and falling under the categories of Scheduled Caste, Scheduled Tribe and SEBC. Laying much emphasis on the words origin of Gujarat , Mr.Yagnik submitted that since the father of the petitioner is from Gujarat, the petitioner is entitled to be considered for admission in M.B.B.S. in terms of Rule 8(2).
We are afraid, we are not impressed even by this submission of Mr.Yagnik because the words origin of Gujarat as appearing in clause (2) of Rule 8 would necessarily mean, the origin of the educational institutions in which the candidate has studied and cleared Standard-12 examination. To put it in other words, those candidates who have studied in Gujarat and have cleared Standards-11 and 12 examination from a school situated within the State of Gujarat.
We thus find that the reservation of remaining 85% seats restricting to only students who have passed the Standard-12 examination from the institutes situated within the State of Gujarat cannot be held to be invalid.
As regards the other contention that the benefit given to the children of All India Services officers, namely, Indian Administrative Service, Indian Police Service and Indian Forest Service allotted to the Gujarat State and serving outside the Gujarat State on deputation, and the children of the Gujarat Government employees who have been posted outside the Gujarat State for the administrative reasons should also be applicable to the children of persons employed by Public Sector Undertakings like Indian Oil Corporation, etc. has been answered by us at length in the case of Vishaka Mahendra Patel (supra). In that case also a similar argument was canvassed that the benefit should also be applicable to the children of persons doing military services for the Government of India. While rejecting such submission canvassed on behalf of the petitioner, we took the view that it would asking this Court to legislate. In an application under Article 226 of the Constitution of India, it is now well-settled law that merely because a particular legislation would be more wiser or more appropriate, for that reason, the writ Court, sitting in a jurisdiction under Article 226 of the Constitution of India, cannot declare a particular provision which is otherwise valid as an invalid piece of legislation. It is for the State Legislature to legislate and that power cannot be usurped by the High Court sitting in a jurisdiction under Article 226 of the Constitution of India.
In taking such view while deciding the case of Vishaka Mahendra Patel (supra), we relied on a Supreme Court decision in the case of State of Madhya Pradesh v/s. Rakesh Kohli and another, reported in (2012)6 SCC 312, wherein the Apex Court considered various earlier decisions of the said Court laying down the circumstances in which a writ Court can declare a statutory provision as ultra vires in the following manner :
24.
While dealing with the aspect as to how and when the power of the court to declare the statute unconstitutional can be exercised, this Court referred to the earlier decision of this Court in Rt. Rev. Msgr. Mark Netto v.
State of Kerala [(1979) 1 SCC 23] and held in para 46 of the Report as under: (P.Laxmi Devi case, [(2008) 4 SCC 720] SCC p. 740)
46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in 24. While dealing with the aspect as to how and when the power of the court to declare the statute unconstitutional can be exercised, this Court referred to the earlier decision of this Court in Rt. Rev. Msgr. Mark Netto v. State of Kerala (1979) 1 SCC 23] and held in para 46 of the Report as under: (P.Laxmi Devi case, [(2008) 4 SCC 720] SCC p. 740) '46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under Schedule VII List I, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23], SCC para 6 : AIR para 6. Also, it is none of the concern of the court whether the legislation in its opinion is wise or unwise.' Then in paras 56 and 57 the Court stated as follows: (P. Laxmi Devi case [(2008) 4 SCC 720], SCC p.744)
56. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges personal preferences. The court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step. As observed by this Court in State of Bihar v.
Kameshwar Singh [AIR 1952 SC 252] (AIR p. 274, para 52)
52. & The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence&.
57. In our opinion, the court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality.
25. The Constitution Bench of this Court in Mohd. Hanif Quareshi v.
State of Bihar [AIR 1958 SC 731] while dealing with the meaning, scope and effect of Article 14, reiterated what was already explained in earlier decisions that to pass the test of permissible classification, two conditions must be fulfilled, namely,
(i). the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and
(ii). such differentia must have rational relation to the object sought to be achieved by the statute in question.
We may quote with profit the observations made by this Court in paragraphs 13 and 14 in the case of Vishaka Mahendra Patel (supra) :
13.
Therefore, whether the benefit of reservation given to the children of All India Services and children of Gujarat Government Employees who have been posted outside the Gujarat State for the Administrative reasons should be also applicable to the children of persons doing military services for the Government of India is a matter which is for the legislature to consider and this Court cannot ask the legislature to legislate, as suggested by the appellants as according to this Court, the same would be more appropriate.
14. We are also not impressed by the submission of the learned counsel for the appellants that the word viz. appearing in rule 5(2)(a) of the Gujarat Rules brings the case of the children of persons doing military services within the scope of the Rule. After the phrase All India Services Officers , the legislature having used the word viz. , meaning namely, it has made its intention clear that the benefit should be given only to the children of three categories of officers mentioned after the word viz. . We may, at this juncture, appropriately refer to the definition of viz. given in Blacks Law Dictionary, Ninth Edition, which is quoted below:
Viz.
: Namely; that is to say <the defendant engaged in fraudulent activities, viz., misrepresenting his gross income, misrepresenting the value of his assets, and for forging his wife's signature>. See VIDELICET.
14.1 The word 'videlicet' is defined in the said dictionary as under:
Videlicet:
To wit; that is to say; namely; SCILICET. The term is used primarily to point out, particularize, or make more specific what has been previously stated in general (or occas. obscure) language. One common function is to state the time, place, or manner when that is the essence of the matter at issue. __ Abbr. Viz. See VIZ.
14.2 The aforesaid definitions in the Black's Law Dictionary also does not approve the contention of the learned advocate for the appellants that the word 'viz.' should be interpreted to mean other allied services of the Central Government including defence service.
We shall now deal with the decisions relied upon by Mr.Yagnik in support of his submissions.
In Meenakshi Malik (supra), the issue before the Supreme Court was, whether the qualifying condition that a candidate appearing for the entrance examination for admission to a medical college in Delhi should have received the last two years of education in a school in Delhi was unreasonable or not ? In that case, the father of the petitioner was employed in the National Council of Educational Research and Training at New Delhi and her mother was employed in the Government Girls Senior Secondary School at New Delhi. The petitioner attended the junior public school upto Class II and the Cambridge School, New Delhi, upto Class IX. Thereafter, the petitioner's father was placed on deputation with the Government of Nigeria through the Ministry of Home Affairs, Government of India, New Delhi. The petitioner who was a minor at the time had to accompany her parents along with her minor brother. The petitioner continued her education in Nigeria as an overseas candidate and appeared for the examination conducted by the University of London in Kanduna, Nigeria and she passed the General Certificate of Education Ordinary Level which is recognized by the Central Board of Secondary Education, New Delhi, as equivalent to Class XI in India. On April 8, 1984, the period of deputation of the petitioner's father came to an end and the family returned to India. The petitioner got herself admitted to Class XII in the Delhi Public School, New Delhi. The Central Board of Secondary Education permitted her admission to that class. The petitioner appeared in the All India Senior School Certificate Examination conducted by the Central Board of Secondary Examination, New Delhi, in March 1985 and passed the examination. The petitioner thereafter sat for the entrance examination for admission to one of the three medical colleges in Delhi and obtained 750 marks. The candidates who had obtained equal number of marks or even less were granted admission but the petitioner was denied admission on the ground that she had not satisfied the condition that the last two years of education should be had in a school in Delhi. Aggrieved by the denial of admission, the petitioner of that case filed a writ-petition before the Supreme Court. The Supreme Court took the view that such a condition was unreasonable when applied in the case of those candidates who were compelled to leave India for a foreign country by reasons of the posting of the parents by the Government to such foreign country. The Court observed as under :
...There is no real choice in the matter for such a student, and in many cases the circumstances of the student do not permit her to continue schooling in India. It is, of course, theoretically possible for a student to be put into a hostel to continue her schooling in Delhi. But in many cases this may not be feasible and the student must accompany a parent to the foreign country. It appears to us that the rigour of the condition prescribing that the last two years of education should be received in a school in Delhi should be relaxed, and there should be no insistence on the fulfilment of that condition, in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them. Rules are intended to be reasonable, and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves. We are of opinion that the condition in the prescription of qualifications for admission to a medical college in Delhi providing that the last two years of education should be in a school in Delhi should be construed as not applicable to students who have to leave India with their parents on the parent being posted to a foreign country by the Government.
Mr.Yagnik has placed strong reliance on the observations made by the Supreme Court referred to above.
In our opinion, this decision of the Supreme Court is of no consequence so far as the case at hand is concerned. It was a case of a Central Government employee who was transferred to a foreign country and the petitioner being a minor had no other option but to accompany her parents.
It is now well-settled that a decision is an authority in the facts of a particular case and even a minute variation in the facts of another case may make the said decision inapplicable to the other case. A decision is a precedent on its own facts. Each case presents its own features.
It is well established that a judgment is a precedent for what it decides and not what may appear to logical flow from it. Each case depends on its own facts and a close similarity between one case or another is not enough because even a single significant detail may alter the entire aspect.
So far as the Government Rules are concerned, it is already clarified that the eligibility criteria as laid down under Rule 5 is concerned, would not be made applicable to the children of All India Services officers, namely, Indian Administrative Service, Indian Police Service and Indian Forest Service allotted to the Gujarat State and serving outside the Gujarat State on deputation including the children of the Gujarat Government employees who have been posted outside the Gujarat State for administrative reasons. Such benefit obviously appears to have been extended considering the hardships suffered by the children who have to shift from one State to other on account of transfer, but such benefit has not been extended to the children of all employees like in the present case. Such classification is permissible and this Court sitting in a writ jurisdiction under Article 226 of the Constitution of India should not decide whether such benefit should be given to the children of all employees including employees of Public Sector Undertakings. Thus, this decision of the Supreme Court would not help the petitioner of the present case in any manner.
So far as the case of Vishakha Mahendra Patel (supra) and Dr.Pradeep Jain (supra) are concerned, we have exhaustively dealt with both the decisions in our judgment.
On consideration of the entire materials on record, we, thus, find that the contentions of the learned advocate for the petitioner are not tenable.
For the foregoing reasons, we hold that there is no merit in this petition and the same deserves to be rejected.
The writ-application is accordingly rejected. However, in the facts and circumstances of the case there shall be no order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 32 of 32