Gujarat High Court
Aryan Sandip Bihola vs State Of Gujarat on 13 October, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal, N.V.Anjaria
NEUTRAL CITATION
C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12948 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of
the Constitution of India or any order made
thereunder ?
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ARYAN SANDIP BIHOLA
Versus
STATE OF GUJARAT
==============================================================
Appearance:
MR VISHWAS SHAH WITH MS BHAVNA SHAH(11047) for Petitioner No.1
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER assisted by MS HETAL
PATEL, AGP for Respondent No. 1
MR. KM ANTANI(6547) for the Respondent(s) No. 2
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 13/10/2023
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The petitioner herein seeks to challenge the vires of Rules 4(3) and 4(6) of the Gujarat Page 1 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, which has been framed by the State of Gujarat in exercise of powers conferred upon it by Sub-section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007.
2. The factual matrix of the claim of the petitioner as stated in the writ petition is that the petitioner belongs to Scheduled Tribe category born in the State of Gujarat in the city of Ahmedabad. His parents and grand parents were also born in the State of Gujarat. The father of the writ petitioner got employed in Canara Bank around the year 1988. While living in the State of Gujarat, the petitioner had passed SSC - 10th Standard Examination from Kendriya Vidyalaya located at Ahmedabad. In the year 2021, the father of the petitioner was transferred out of the State of Gujarat and the petitioner had completed 12th Standard Examination from Kendriya Vidyalaya at Page 2 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Aligarh, Uttar Pradesh. It is stated in the writ petition that the Certificate of Scheduled Tribe and Domicile Certificate have been issued to the petitioner by the competent authorities in the months of May, 2023 and June, 2023; respectively. The petitioner had appeared in NEET examination, result of which was declared on 13.06.2023. When he had applied before the Admission Committee for admission in M.B.B.S. in the State of Gujarat in Scheduled Tribe (ST) quota, the petitioner was orally communicated that his candidature has been rejected by the Admission Committee for the reason that he has not passed 12th Standard Examination from the State of Gujarat. The occasion for filing the instant writ petition in the month of July, 2023 had, thus, arisen. By the draft amendment, the petitioner seeks to challenge the list of disqualified candidates updated at the website of the Admission Committee, namely, respondent No.2, published on 01.08.2023, wherein the name of the petitioner is reflected at Serial No.155. It is stated in the draft amendment that the list of eligible candidates in the ST Page 3 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined category in Gujarat merit-list has also been displayed and the last candidate qualified in ST category is having NEET score of 286 and his CAT merit is ST-0534. Whereas the petitioner has attained NEET score of 310 and the petitioner's rank would have been ST-0369, had he not disqualified on account of having not passed 12th Standard Examination from a school located in the State of Gujarat. It is stated that the only reason of rejection of the candidature of the petitioner is that the petitioner had passed 12th Standard Examination from a school located outside the State of Gujarat.
3. It is argued by the learned counsel for the petitioner that Rule 4(3) of the Rules, 2017 which prescribes the eligibility qualification for admission in a professional medical educational course in the State of Gujarat is discriminatory in nature as it excludes those children from the zone of consideration who though are domicile of the State of Gujarat but have studied in the schools located outside the State of Gujarat, on account of their Page 4 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined parents having undertaken job outside the State of Gujarat. Rule 4(3) only includes those candidates who have passed 10th and 12th Standard qualifying examinations from :-
(i) The Gujarat Board; or
(ii) The Central Board of Secondary Education while studying in a school located in the State of Gujarat; or
(iii) The Council of Indian School Certificate Examinations Board, New Delhi, while studying in a school located in the State of Gujarat.
4. The contention is that the aforesaid classification is absurd, illogical and wholly bad in law, inasmuch as, it has no nexus with the object sought to be achieved by the Act. It was argued that sub-classification of the requirement of domicile for admission in the State of Gujarat would amount to creating a class within class which is not based on any intelligible differentia and it is discriminatory inviting wrath of Article 14 of the Constitution of India. Moreover, Sub-rule (6) of Rule 4 creates Page 5 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined another classification by permitting the sons and daughters of particular class of employees, namely, the State Cadre employees, Defence Personnel and Members in All India Services allotted to the State of Gujarat. The provision which has permitted only sons and daughters of particular category of employees from the rigors of Rule 4(3), cannot withstand the test of scrutiny under Article 14 of the Constitution of India. It was argued that various other States have provided only the requirement of domicile as eligibility qualification for admission in professional medical colleges within State. Sub- classification of the requirement of domicile, permitting only those candidates who had passed 10th and 12th Standard Examinations from the schools located in the State of Gujarat cannot be said to be a valid classification in the realm of law and is liable to be held as discriminatory. The petitioner though domicile of Gujarat but has been excluded from the zone of consideration only for the reason that he has passed 12th Standard Examination from a school located outside the State of Gujarat, that too for Page 6 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined the reason that his father had been transferred outside the State of Gujarat as an employee of a nationalized bank.
5. In the alternative, it was argued that the nationalized bank being a public sector undertaking is to be included in the categories of employees prescribed in Sub-rule (6) of Rule 4, for the reason that a public sector undertaking would fall within the meaning of the 'State' and as such, is comparable to a Gujarat State employee or member of All India Services. It is further argued that there is no challenge to the competence of the State to make any provision to regulate the admission of students to the professional educational colleges and institutions, to carry out the purposes of the Act, 2007. However, the State cannot place any restriction beyond its competence so as to see that a particular category of employees of the State only get benefit. In any case, the regulatory rule framed under Section 20(1) of the Act, 2007, cannot go beyond the scope of the main provision, that is, the Act itself. Page 7 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023
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6. Reliance is placed on the decision of the Apex Court in Kunj Behari Lal Butail and others vs. State of H.P. and others - (2000) 3 SCC 40, to assert that a delegated power to legislate by making rules for carrying out the purposes of the Act is a general delegation without laying down any guidelines. The rules framed is to satisfy the test of having been framed to carry out the purpose of the Act, so as to fall within the scope of such general power. It cannot be exercised to bring in existence substantive rights or obligation or disabilities not contemplated by the provisions of the Act itself.
7. Reliance is placed on the decision of the Division Bench of this Court in Hardik Dhirubhai Patel vs. State of Gujarat - 2019 SCC Online Guj. 7048, to submit that Rule 4(7)(i) of the Rules, 2017, subject matter of consideration therein, insofar as it requires a student to have studied under Jawahar Navodaya Scheme upto Standard VIII in any of the schools located in the State of Gujarat has been held to be ultra vires.
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8. Further reliance is placed on the decision of this Court in Vishakha Mahendra Patel vs. State of Gujarat and another, being Letters Patent Appeal No.921 of 2012 and allied matters, wherein the admission to a candidate whose father was serving in Army had been denied.
9. Reliance is also placed on the decision of this Court dated 09.09.2014 in Ionic Metalliks and others vs. Union of India and others, being Special Civil Application No.645 of 2014, where the issue was with regard to the scope of judicial scrutiny under extraordinary writ jurisdiction of Article 226 of the Constitution of India. It was argued that the Division Bench has observed therein that the most important and vital consideration should be the "function test" as regards the maintainability of the writ petition. If a public duty or public function is involved, any body, public or private, concerned or connection with that duty or function, and limited to that, would be subject to judicial scrutiny under Article 226 of the Constitution, as it would fall Page 9 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined within the meaning of Article 12 of the Constitution of India.
10. It was, thus, argued by the learned counsel for the petitioner that the public sector banks which are discharging public functions would fall within the meaning of Article 12 of the Constitution of India and, as such, are comparable to the State Government employees, the members of All India Services etc. It was, thus, urged that the petitioner being son of an employee of a public sector bank is entitled to be included in the categories of employees whose sons and daughters have been included in the zone of consideration under Rule 4(6) of the Rules, 2017 for the purpose of admission in the professional medical colleges and institutions in the State of Gujarat.
11. In rebuttal, Ms.Manisha Lavkumar, learned Government Pleader appearing for respondent No.1, at the outset, placed the judgment and order dated 22.08.2013 passed by this Court in the case of Page 10 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Sheetal Yeshwantkuma Parmar vs. State of Gujarat and another, being Special Civil Application No.12163 of 2013, upholding the constitutional validity of Rule 5(2) of the then Rules, 2013 framed under Section 20(1) of the Act, 2007. Rule 5(2) of the then 2013 Rules was pari materia to Rule 4(6) of the Rules, 2017, subject matter of challenge herein. It is argued that the issue with regard to the constitutionality of Rule 4(3) and 4(6) of the Rules, 2017 is no longer res integra. The writ petition is, thus, liable to be dismissed in limine. It was further argued that Rules, 2017 were promulgated on 23.06.2017. Rule 4(3) of Rules, 2017 provided the requirement of having passed 10th and 12th qualifying examination from the Gujarat Board; CBSE and ISCE Board from a school located in the State of Gujarat. By Amendment Act, 2018, with effect from 04.05.2018 two more clauses were added in Sub-rule (3) of Rule 4 which provided as under :-
"(iv) The International School Board (International Baccalaureate and Cambridge) provided that the school in which the candidate has studied, is Page 11 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined located in the State of Gujarat; or
(v) The National Institute of Open Schooling provided that the school in which the candidate has studied, is located in the State of Gujarat."
12. The said amendment also provided for substitution of Sub-rule (6) of Rule 4 of 2017 Rules, originally provided in Rule 5(2) of 2013, whereby sons and daughters of Defence Personnel who are domicile of Gujarat State and presently serving outside Gujarat have been added to be treated at par with the candidates under Sub-rule (1) provided they fulfill other eligibility criterias. The Notification dated 04.05.2018 was subject matter of challenge in a bunch of writ petitions with Special Civil Application No.8590 of 2018 - Taksh Vijaybhai Hadvani vs. State of Gujarat, wherein validity of Rule 4(3)
(ii) and Rule 4(1-A) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 has been upheld. By another Notification dated 15.06.2019, certain more amendments were brought in Sub-rule (1- A) and Sub-rule (3) of Rule 4 of the Rules, 2017 by Page 12 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Amendment Rules, 2019. The validity of the said Notification was again challenged in Eshika Satyajit Das vs. State of Guajrat, being Special Civil Application No.3576 of 2020, which has given rise to Letters Patent Appeal No.799 of 2020. This Court vide judgment and order dated 06.11.2020 has adjudicated the challenge with regard to the exclusion of a candidate who had studied 10th Standard Examination from the institution situated outside the State of Gujarat whereas 12th Standard Examination was passed by the said candidate from the school located in the State of Gujarat. The challenge was that by way of amendment in Rule 4, the requirement of passing of 10th and 12th Standard Examination from the institution situated within the State of Gujarat was introduced, due to which the petitioner therein was not being considered as an eligible candidate to secure admission in the professional medical course in the State of Gujarat. There was no challenge to the validity of the Rule 4(3)(ii) of the Rules, 2017, therein, rather the prayer was to grant relaxation from the rigors of the Page 13 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Rule for one last year i.e. for the Academic Year 2020-21. This Court has noted the Notifications dated 25.06.2018 and 15.06.2019 to record that the State Government had given relaxation in the requirement of Sub-rule (3) of Rule 4 for passing 10 th Standard Examination from the school located in the State of Gujarat, for the Academic Sessions 2018-19 and 2019-
20. The question considered by the Division Bench therein, thus, was as to whether such relaxation can be granted by the State for the Academic Year 2020-
21. This Court has left the decision to grant such relaxation upon the State Government and, thus, did not enter into the validity of the Sub-rule (3) of Rule 4.
13. By another Notification dated 09.11.2020, a further exemption for the Academic Year 2020-21 was granted with respect to those candidates who have taken admission before 23.06.2017 in 10th Standard and passed 10th Standard Examination from the school located outside the State of Gujarat. In the subsequent Academic Year 2020-21, again the issue was Page 14 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined raised before this Court in Jenil Rajeshbhai Mehta vs. State of Gujarat, being Special Civil Application No.1831 of 2022 seeking for extension of benefits of the Notification dated 09.11.2020 to the petitioners therein on the ground that they had taken admission before 23.06.2017 in 10th Standard Examination and passed 10th Standard Examination from the school located outside the State of Gujarat though they have completed 12th Standard Examination from the institution located in the State of Gujarat. The dispute raised by the writ petitioners therein was that they were born in the State of Gujarat and have studied from Class 1st to Class 6th/7th/8th/9th in the State of Gujarat and after when they secure admission in schools outside the State of Gujarat in 10th Standard in the year 2017, Rules 2017 came to be notified excluding such candidates who did not complete 10th Standard Examination from a school located in the State of Gujarat. The relaxation was sought in the requirement of completing 10th and 12th Standard from the State of Gujarat prescribed under Rules, 2017, for yet another Academic Year 2021-22. Page 15 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023
NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined While rejecting the said prayer, the contentions of the counsels for the petitioners that Rule 4(3)(ii) is liable to be struck down as ultra vires to the Constitution has been turned down. It was observed therein that the challenge to Rule 4(3)(ii) and Rule 4(1-A) of the Rules, 2017, has been upheld by this Court in Special Civil Application No.8590 of 2018 - Taksh Vijaybhai Hadvani (supra) and thus, the issue relating to some of the students who have studied 10th Standard from the school situated outside the State of Gujarat being allowed to take admission being a policy decision, the State was directed to take a decision on the issue as to whether the implementation of the said provision can be suspended with so as to include those candidates who took admission in 10th Standard Examination in the schools outside the State of Gujarat, prior to incorporation of the Rules with effect from 23.06.2017.
14. The submission of Ms.Manisha Lavkumar, learned Government Pleader, thus, is that relaxation was granted only in case of those students who had Page 16 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined undergone 10th Standard Examination prior to insertion of the said provision in the Rules, 2017, with effect from 23.06.2017. However, the petitioner herein has taken admission in HSC (12th Standard) in the year 2021 in a school outside the State of Gujarat and has passed the 12 th Standard Examination in the Academic Year 2022-23, much after the enforcement of the Rules, validity of which has been upheld by this Court. The contention is that the grounds raised by the petitioner herein, to challenge the validity of Rule 4(3) of the Rules, 2017 being contrary to the Parent Act, 2017 as also the said rule having no nexus with the object sought to be achieved, have already been considered by this Court and have been turned down in two successive decisions in Special Civil Application No.8590 of 2018 - Taksh Vijaybhai Hadvani (supra) and Special Civil Application No.1831 of 2022 - Jenil Rajeshbhai Mehta (supra). In view of the said settled position of law, with the pronouncements of this Court, the challenge to the validity of the Rules 4(3) and 4(6) of the Rules, 2017 cannot be entertained. Page 17 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023
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15. Having heard the learned counsels for the parties and perused the record, at the outset, we may note that the requirement of Sub-rule (3) of Rule 4 of having passed 10th and 12th qualifying examination either from the Gujarat Board or from CBSE or ISCE examination boards while studying in the schools located in the State of Gujarat had been introduced by the Notification dated 23.06.2017 by promulgating the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017. The challenge to the validity of Rule 4(3)(ii) namely of having passed 10th and 12th qualifying examination from CBSE while studying in the schools located in the State of Gujarat came up for consideration in a bunch of writ petitions leading being Special Civil Application No.8590 of 2018 - Taksh Vijaybhai Hadvani (supra). Prior to the said Notification dated 23.06.2017, the requirement of passing qualifying examination, namely 12th Standard Examination from the Gujarat Board, or CBSE provided that the school in which the candidate has Page 18 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined studied is located in the State of Gujarat; or ISCE examination while studying in the school located in the State of Gujarat, in the then Rules, 2016, which were applicable till Academic Year 2016-17, was already existing. Thus, the requirement of passing of 10th Standard from the Gujarat Board or any other board having their schools located in the State of Gujarat was introduced with the promulgation of Rules, 2017 with effect from 23.06.2017. By another Notification dated 04.05.2018, Rule 4(1-A) was introduced providing the eligibility criteria that the candidate should be domicile of Gujarat State. The candidates who though domicile of the State of Gujarat but had passed 10th Standard examination from schools located outside the State of Gujarat questioned the validity of Rule 4(3)(ii) of the Rules, 2017. Similarly, those candidates who though satisfies the eligibility criteria of being domicile of the State of Gujarat, but have passed 10 th and 12th Standard qualifying examination from outside the State of Gujarat, as also the candidates who though domicile of the State of Gujarat and have passed 12th Page 19 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Standard Examination from Gujarat Board or Central Board having their schools located in the State of Gujarat, but have passed 10th Standard from the institutions outside the State of Gujarat, had also raised the challenge to the validity of Rule 4(3)
(ii). Apart from the above categories, the candidates who though have passed 10th and 12th Standard qualifying examination from the Gujarat Board or CBSE Board having their institutions in the State of Gujarat, but did not satisfy the criteria of domicile introduced under Article 4(1-A) of the Rules, 2017, have also challenged the validity of the said Rules.
16. The petitioners therein claimed that they were born in the State of Gujarat and were having domicile certificate of State of Gujarat and for some or other reasons, they had to take admission in 10th or 12th Standard in the schools located outside the State of Gujarat, they all cannot be excluded from the zone of consideration by introduction of the requirement of passing 10th and 12th qualifying examination both from either the Gujarat Board or CBSE or ISCE Boards from Page 20 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined a school located in the State of Gujarat.
17. The stand of the respondent State therein was that the Rules, 2017, are framed in exercise of power under Section 20 of the Act, 2007. The State cannot be denied the right to decide as to from what sources the admission will be made. The requirement of Rule 4(3) of the Rules, 2017 for having passed 10th and 12th Standard qualifying examination from the CBSE/ISCE Boards in schools located in the State of Gujarat is nothing but the requirement of furtherance of domiciliary of the State. Imparting medical education by medical colleges require considerable finance to maintain the same and, therefore, it is very much reasonable on the part of the State to see that advantage of the educational system prevalent in the State would be to a great extent, yield benefit to the State. It is legally permissible for the State to give more weightage to the said aspects for giving admission to undergraduate M.B.B.S. course being offered in the medical colleges of the State and there is nothing wrong. Rules 4(3)(ii) are based on Page 21 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined intelligible differentia and there is nexus between the said classification and the object for the medical education offered in the State of Gujarat. The issue with regard to the requirement of domiciliary had been determined by the Apex Court in the case of Dr.Pradeep Jain vs. Union of India - (1984) 3 SCC 654 and Dr.Dinesh Kumar vs. Motilal Nehru Medical College, Allahabad - (1986) 3 SCC 727, wherein it is stated that the State Government is empowered to reserve 85% of the seats based on merit, restricting only to the students who have passed 12th Standard from any institution situated within the State of Gujarat and remaining 15% seats which are to be filled out of All India quota, on the basis of NEET examination. It was, thus, argued by the State therein that reservation of seats on the basis of domicile/residency and institutional preference is approved for undergraduate medical admission by the Apex Court in the above-noted decision and as such, no case was made out to seek invalidation of the rules.
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18. Having noted the controversy raised therein, this Court had proceeded to refer to the decisions of the Apex Court wherein it has approved the reservation based on domicile in undergraduate medical course, in paragraph 19 to 23 of Taksh Vijaybhai Hadvani (supra) as under :-
"[19] In the judgment in the case of Shri D.P.Joshi v/s. State of Madhya Bharat (AIR 1955 SC 334), a student / resident of Delhi who was admitted in medical college in the State of Madhya Bharat pleaded discrimination in the matter of fees between the students who were residents of Madhya Bharat and who were not. While considering the plea of discrimination, the Hon'ble Supreme Court has approved a concession given to the residents of the State in the matter of fees in undergraduate medical course. In the aforesaid judgment, the Hon'ble Supreme Court has opined that education being State subject, it is open for the State to help some students of Madhya Bharat in the prosecution of their studies. It is held that it is quite legitimate and laudable objective for State to achieve objective within its borders.
[20] In the judgment in the case of Kumari Chitra Ghosh v/s. Union of India [1969(2) SCC
228) also, while considering the provisions of Delhi University Act, the Hon'ble Supreme Court has held that the State cannot be denied right to decide from what source admission will be made and the same is essentially a question of policy and depends inter-alia on an overall assessment and survey of the requirement of residents of particular territories and other categories of persons for whom it is essential to Page 23 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined provide facilities for medical education. It is further held that 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.
[21] In the judgment in the case of Kumari N. Vasundara v/s. State of Mysore [1971 (2) SCC 22], the Hon'ble Supreme Court while considering the rules of admission to pre- professional course in medical college, condition of residence for ten years imposed in eligibility criteria in Rule 3 of the Rules was held to be valid. In the aforesaid judgment, it is held that State has therefore, to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad based medical aid to the people of the State.
[22] Judgment in the case of Dr. Pradeep Jain v/s. Union of India [(1984) 3 SCC 654], is relied by both the sides to buttress their arguments. In the aforesaid judgment, while considering reservation of seats for residents of the State or students of same University, the Hon'ble Supreme Court has drawn distinction from undergraduate medical courses to that of post graduate courses. Same is evident from paragraph No.22 of the said judgment. In the aforesaid judgment, Hon'ble Supreme Court has held that having regard to socio - economic disparities and inequalities, reservation of certain percentage of seats, in the case of admission to undergraduate medical course was, held to be valid. To the extent or limit of such reservation, reasonableness, it was held that it would depend upon particular facts and circumstances. In the aforesaid judgment, the Hon'ble Supreme Court has held that 70% of available seats can be reserved by the State, Page 24 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined but at the same time in case of admission to post graduate medical course, it is held that partial reservation based on residence requirement is not permissible. In the aforesaid judgment, reservation in Post graduate course to the extent of 50% of the seats was held to be permissible based on institutional preference. Paragraph Nos.19 to 22 of the said judgment which are relevant, read as under :-
"19. It will be noticed from the above discussion that though intra-State discrimination between persons resident in different districts or regions of a State has by and large been frowned upon by the Court and struck down as invalid as in Minor P. Rajendran's case (AIR 1968 SC 1012) (supra) and Perukaruppan's case (AIR 1971 SC 2303) (supra), the Court has in D. N. Chanchala's case and other similar cases upheld institutional reservation effected through university-wise distribution of seats for admission to medical colleges.
The Court has also by its decisions in D. P. Joshi's case (AIR 1955 SC 334) and N. Vasundhara's case (AIR 1971 SC 1439) (supra) 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 Art.
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. It is of course true that the Medical Education Page 25 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Review Committee established by the Government of India has in its report recommended after taking into account all relevant considerations. that the "final objective should be to ensure that all admissions to the MBBS course should be open to candidates on an All India basis without the imposition of existing domiciliary condition", but having regard to the practical difficulties of transition to the stage where admissions to MBBS course in all medical colleges would be on all India basis, the Medical Education Review Committee has suggested "that to begin with not less than 25 per cent seats in each institution may be open to candidates on all India basis." We are not at all sure whether at the present stage it would be consistent with the mandate of equality in its broader dynamic sense to provide that admissions to the MBBS course in all medical colleges in the country should be on all India basis.
Theoretically, of course, if admissions are given on the basis of all India national entrance examination, each individual would have equal opportunity of securing admission, but that would not take into account diverse considerations, such as, differing level of social. economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all India basis get admission to the MBBS course in another region far remote from their own and other allied factors. There can be no doubt that the policy of ensuring admissions to the MBBS course on all India basis is a highly desirable policy, based as it is on the postulate that India is one nation and every citizen of India is entitled to have equal opportunity for education and advancement, but it is an ideal to be aimed at and it may not be Page 26 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined realistically possible, in the present circumstances, to adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities a situation which simply does not exist in the country today. There are massive social and economic disparities and inequalities not only between State and State but also between region and region within a State and even between citizens and citizens within. the same region. There is a yawning gap between the rich and the poor and there are so many disabilities and injustices from which the poor suffer as a class that they cannot avail themselves of any opportunities which may in law be open to them. They do not have the social and material resources to take advantage of these opportunities which remain merely on paper recognised by law but non-existent in fact. Students from backward States or regions will hardly be able to compete with those from advanced States or regions because, though possessing an intelligent mind, they would have had no adequate opportunities for development so as to be in a position to compete with others. So also students belonging to the weaker sections who have not by reason of their socially or economically disadvantaged position, been able to secure education in good schools would be at a disadvantage compared to students belonging to the affluent or well-to-do families who have had the best of school education and in open All India Competition, they would be likely to be worsted. There would also be a number of students who, if they do not get admission in a medical college near their residence and are assigned admission in a far off college in another State as a result of open All India Competition, may not be able to go to such other college on account of lack of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursuing the medical course even though Page 27 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined on paper they would have got admission in a medical college. It would be tantamount to telling these students that they are given an opportunity of taking up the medical course, but if they cannot afford it, by reason of the medical college. to which they are admitted being far away in another State, it is their bad luck. The State cannot help it, because the State has done all that it could, namely, provide equal opportunity to all for medical education. But the question is whether the opportunity provided is real or illusory? We are therefore of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise 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 pawing the PUC or premedical 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 and for this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to the Central Board of Secondary Education. It would be constitutionally permissible to provide, as an interim measure until we reach the stage when we can consistently with the broad mandate of the rule of equality in the larger sense: ensure admissions to the MBBS course on the basis of national entrance examination an ideal which we must increasingly strive to reach for reservation of a certain percentage of seats in the medical colleges for students satisfying a prescribed residence requirement as also for students who have passed PUC or pre-medical examination or any other qualifying examination held by the university or the State and for this purpose it should make no difference Page 28 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined whether the qualifying examination is conducted by the State Board or by the Central Board of Secondary Education, because no discrimination can be made between schools affiliated to the State Board and schools affiliated to the Central Board of Secondary Education. We may point out that, at the close of the arguments we asked the learned Attorney General to inform the Court as to what was the stand of the Government of India in the matter of such reservation and the learned Attorney General in response to the inquiry made by the Court filed a policy statement which contained the following formulation of the policy of the Government of India :
"Central Government is generally opposed to the principle of reservation based on domicile or residence for admission to institution of higher education, whether professional or otherwise. In view of the territorially articulated nature of the system of institutions of higher learning including institutions of professional education. there is no objection, however, to stipulating reservation or preference for a reasonable quantum in under-graduate courses for students hailing from the school system of educational hinterland of the institutions. For this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to CBSE."
We are glad to find that the policy of the Government of India in the matter of reservation based on residence requirement and institutional preference accords with the view taken by us in that behalf. We may point out that even if at some stage it is decided to regulate admissions to the MBBS course on the basis of All India Entrance Examination, some provision would have to be made for allocation of seats amongst the selected candidates on the basis of residence. or institutional Page 29 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined affiliation so as to take into account the aforementioned factors.
20. The only question which remains to be considered is as to what should be the extent of reservation based on residence requirement and institutional preference.
There can be no doubt that such reservation cannot completely exclude admission of students from other universities and States on the basis of merit judged in open competition. Krishna Iyer, J. rightly remarked in Jagdish Saran's case at pages 845 and 846 of the Report :
"....Reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly. all the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalisation when the Constitution mandates for every one equality before and equal protection of the law may be fatal folly, self-defeating educational technology and anti-national if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit such is the dynamics of social justice which antimates the three egalitarian articles of the Constitution."
We agree wholly with these observations made by the learned Judge and we Page 30 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined unreservedly condemn 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 excluding all students not satisfying this requirement, regardless of merit. We declare such wholesale reservation to be unconstitutional and void as being in violation of Art. 14 of the Constitution.
21. But, then to what extent can 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 be regarded as constitutionally permissible? It is not possible to provide a categorical answer to this question for as pointed out by the policy statement of the Government of India, the extent of such reservation would depend on several factors including opportunities for professional education in that particular area, the extent of competition, level of educational development of the area and other relevant factors. It may be that in a State where the level of educational development is woefully low, there ,are comparatively inadequate opportunities for training in the medical speciality and there is large scale social and economic backwardness, there may be justification for reservation of a higher percentage of seats in the medical colleges in the State and such higher percentage may not militate against "the equality mandate viewed in the perspective of social justice". So many variables depending on social and economic facts in the context of educational opportunities would enter into the determination of the question as to what in the case of any particular State, Page 31 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined should be the limit of reservation based on residence requirement within the State or on institutional preference. But, in our opinion, such reservation should in no event exceed the outer limit of 70 per cent. of the total number of open seats after taking into account other kinds of reservations validly made. The Medical Education Review Committee has suggested that the outer limit should not exceed 75 per cent. but we are of the view that it would be fair and just to fix the outer limit at 70%. We are laying down this outer limit of reservation in an attempt to reconcile the apparently conflicting claims of equality and excellence. We may make it clear that this outer limit fixed by us will be subject to any reduction or attenuation which may be made by the Indian Medical Council which is the statutory body of medical practioners whose functional obligations include setting standards for medical education and providing for its regulation and co- ordination. We are of the opinion that this outer limit fixed by us must gradually over the years be progressively reduced but that is a task which would have to be performed by the Indian Medical Council. We would direct the Indian Medical Council to consider within a period of nine months from today whether the outer limit of 70 per cent fixed by us needs to be reduced and if the Indian Medical Council determines a shorter outer limit, it will be binding on the States and the Union Territories. We would also direct the Indian Medical Council to subject the outer limit so fixed to reconsideration at the end of every three years but in no event should the outer limit exceed 70 per cent fixed by us. The result is that in any event at least 30 per cent of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such Page 32 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined admissions shall be granted purely on merit on the basis of either all India Entrance Examination or entrance examination to be held by the State. Of course, we need not add that even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directions given in this judgment, admissions from the source or sources indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious students from within such source or sources.
22. So much for admission to the MBBS course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to the post graduate courses, such as, M.D., M.S. and the like. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. It was rightly pointed out by Krishna Iyer, J. in Jagdish Saran's case, (AIR 1980 SC 820, Paras 23, 39 and 44), and we wholly endorse what he has said :
"The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scale of speciality where the best skill or talent must be hand-picked by selecting according to capability. At the level of Ph.D., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and Page 33 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined cannot be diluted much without grave risk."
"If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of soical in consequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk / because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold- shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this un-relenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worth-less."Page 34 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023
NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined "Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post graduate or post doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub- standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super- skilled specialists, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post graduate or postdoctoral." These passages from the judgment of Krishna Iyer, J. clearly and forcibly express the same view which we have independently reached oil our own and indeed that view has been so ably expressed in these passages that we do not think we can usefully add anything to what has already been said there. We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to post-graduate courses are concerned, for pampering local feeling, will boomerang. We may with advantage reproduce the recommendation of the Indian Medical Council on this point which may not be the last word in social wisdom but is certainly worthy of consideration :
"Student for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted Page 35 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined by the Universities."
The Medical Education Review Committee has also expressed the opinion that " all admissions to the post-graduate courses in any institution should be open to candidates on an all India basis and there should be no restriction regarding domicile in the State / UT in which the institution is located." So also in the policy statement filed by the learned Attorney General, the Government of India has categorically expressed the view that :
"So far as admissions to the institutions of post graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all India merit subject to constitutional reservations in favour of Scheduled Castes and Scheduled Tribes".
We are therefore of the view that so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any Page 36 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined event exceed 50 percent of the total number of open seats available for admission to the postgraduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post- graduate course, we would direct that so far as super, specialties such as neuro- surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis. "
[23] Judgment in the case of Dr. Dinesh Kumar v/s. Motilal Nehru Medical College, Allahabad [(1986) 3 SCC 727], the Hon'ble Supreme Court has held that in undergraduate medical courses, admission to 15% of total available seats shall be made on the basis of All India Entrance Examination and remaining can be reserved for the residents of State."
19. It was noted that as per rule of admission, 85% of the available seats in undergraduate courses are reserved for residents/domicile of the State of Gujarat. The requirement of Rule 4(3)(ii), subject matter of challenge therein was to ensure that 85% of seats are allotted to students who are permanent residents of State of Gujarat and as such, it cannot be said that such rules are framed without any object sought to be achieved. It was held that when the Page 37 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined seats are reserved for permanent residents of the State of Gujarat to the extent of 85%, insisting such candidates to be domicile of the State of Gujarat, cannot be said to be illegal. Domiciliary is something which is different from the place of birth and it cannot be said to be violative of Article 19(1)(e) of the Constitution of India. The challenge of the petitioners that classification of candidates having passed 10th Standard Examination from the schools situated in the State of Gujarat and outside the State of Gujarat amounts to micro classification, has been turned down with the observations in paragraph 23.4 as under :
"[23.4] The argument of the petitioners that classification of students, who have passed 10 th Standard from school situated in the State of Gujarat and outside State of Gujarat amounts to micro classification, also cannot be accepted. Said classification is to be held reasonable classification, so as to achieve object, to ensure that local residents get admission in undergraduate medical courses. It is well settled that classification which has nexus with the object which is sought to be achieved, is to be held to be reasonable classification and it will not infringe rights of the petitioners guaranteed under Article 14 of the Constitution of India. It is also well settled that when Rule is made to implement provisions of legislation, legitimate Page 38 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined presumption is that the rule must have been framed by the State Government in good faith and with full knowledge of the existing conditions as well as requirements and the amendment, if any, must have been made to solve difficulties manifested by experience.
It is also to be noticed that mere
differentiation will not amount to
discrimination and further trivial or
illusory itself in classification, in
treatment cannot attract Article 14 of the Constitution of India. In the judgment in the case of Kumari Jayshree Chandrachud Dixit v/s. State of Gujarat reported in 1979 GLR 614, while considering the validity of rules of admission to First MBBS course, the learned Single Judge of this Court has considered identical situation and in the said case, learned Single Judge has held that mathematical nicety or perfect equality is not essential to meet the test of Article 14 of the Constitution of India. Having regard to the objectives of the Rules, and the plea of the respondent in reply affidavit, we are of the view that impugned rules are not arbitrary and illegal as prayed for and they do not amount to micro classification offending rights guaranteed under Article 14 of the Constitution of India. We are of the view that such rules are framed only in furtherance of the object to reserve 85% of the seats in undergraduate medical courses for residents of the State of Gujarat. In that view of the matter, we are not persuaded to accept the plea of discrimination as prayed for."
20. In view of the above, the contention of the learned Government Pleader that the issue pertaining to requirement of having passed 10 th and 12th Standard examination by the candidates in their schools Page 39 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined located in the State of Gujarat is no longer res integra, deserves merit. From the above-noted decisions of the Apex Court and that of the aforesaid Division Bench judgment of this Court in upholding the validity of Rule 4(3)(ii) of Rules, 2017, the issue pertaining to classification of students who have passed 10th and 12th Standard Examination from the school situated in the State of Gujarat, being the requirement of domiciliary, the State having right to decide as to who would be treated as domicile of the State of Gujarat, for the purpose of seeking admission, in 85% quota, is no longer open for deliberation. In view of the above-noted decisions, the issue of reservation of seats for permanent residents of the State of Gujarat to the extent of 85%, insisting such candidates to be having passed 10th and 12th Standard Examination from the schools situated in State of Gujarat, cannot be raised further.
21. As noted above, the requirement of passing qualifying examination namely 12th Standard Page 40 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Examination from the Gujarat Board or CBSE/ISCE Boards from the school located in the State of Gujarat was very much there in the eligibility criteria in the Rules, 2016, which were applicable for admission to the Academic Year 2016-17. By new sets of Rules, 2017, with effect from 23.06.2017, the requirement of passing 10th Standard Examination from Gujarat Board or CBSE/ISCE schools located in the State of Gujarat had been introduced. So far as the petitioner herein is concerned, he has passed 10 th Standard Examination from a school located in the State of Gujarat, however, 12th Standard qualifying examination was completed by him while studying in a school outside the State of Gujarat. The petitioner though may be domicile of the State of Gujarat but does not fit into the criteria of Sub-rule (3) of Rule 4 of Rules, 2017, as amended from time to time, which has been incorporated to ensure that 85% of the available seats in undergraduate medical courses are allotted to students who are permanent residents of the State of Gujarat. The challenge to the validity of Rule 4(3) of the Rules, 2017 on the grounds raised Page 41 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined herein, therefore, cannot be sustained.
22. As regards Rule 4(6) of the Rules, 2017 is concerned, the said rule provided exemption from the requirement of Sub-rule (3) of Rule 4 of having passed 10th and 12th qualifying examination from the Gujarat Board; CBSE/ISCE from the school located in the State of Gujarat, with respect to three categories, namely :-
"(a) Sons and daughters of All India Services Officers viz. Indian Administrative Service, Indian Police Service, Indian Forest Service etc, allotted 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,
(c) Sons and daughters of defense personnel who are domicile of Gujarat State and presently serving outside Gujarat State.
shall be treated at par with the candidates under sub-rule (1) provided they have passed the qualifying examination from the respective State Board or Central Board or The Council of Indian School Certificate Examination Board or The International School Board (International Baccalaureate and Cambridge) or The National Institute of Open Schooling and obtained qualifying marks under clause A of sub- rule (5) of rule 4. In such cases, his / her candidature shall be included in the merit list referred to in clause (a) of sub-rule (1) of rule 10. Page 42 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023
NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined Notwithstanding anything contained in these rules, he will be eligible for management seat irrespective of the fact that such candidate has passed qualifying examination from a school located in the state or outside the state of Gujarat."
23. A perusal of the requirement of the aforesaid three clauses indicates that sons and daughters of those Gujarat Government employees, or Defence Personnel who are otherwise domicile of the State of Gujarat are treated at par with the candidates under Sub-rule (1) of Rule 4, if their parents are serving outside the State of Gujarat for administrative reasons or being members of Armed Forces; respectively. Similarly, sons and daughters of All India Service officers viz. Indian Administrative Service, Indian Police Service and Indian Forest Service etc., allotted to the Gujarat State and serving outside the Gujarat State on deputation, are also included in the same category. Taking note of the categories to which exclusion from the requirement of Sub-rule (3) of Rule 4 has been granted to the wards of Gujarat State employees, Defence Personnel and Members of All India Services Page 43 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined allotted to the State of Gujarat, considering the conditions in which they are required to serve outside the State, on deputation or; administrative reasons etc., it cannot be said that inclusion of such candidates in the eligibility criteria is hit by Article 14 of the Constitution of India being arbitrary or discriminatory. There cannot be a dispute to the fact that 85% of seats in undergraduate courses are reserved for permanent residents of the State of Gujarat. Domiciliary as has been held by the Apex Court and the Division Bench of this Court is different from the place of birth. The ward of a permanent resident/employee of the State, who is required to serve outside the State for the need of the job cannot be excluded from the zone of consideration, merely for the fact that he was forced to study outside the State of Gujarat for the demand of the job of his parents. The three conditions in which the ward of a State employee, Member of All India Services or Defence Personnel can be included in the zone of consideration being treated at par with the candidates under Sub-rule (1) of Rule 4, Page 44 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined cannot be said to be an unreasonable classification or hit by Article 14 of the Constitution of India.
24. Further, the claim of the petitioner who is ward of an employee of a nationalized bank/public sector bank that he has to be treated at par with the ward of the State Government employee, Defence Personnel or the Member of All India Services, is wholly without any basis. The contention of the learned counsel for the petitioner that the public sector bank wherein father of the petitioner is serving being a 'State' within the meaning of Article 12 of the Constitution of India, his candidature has to be included in the category prescribed in Sub-rule (6) of Rule 4, is found to be misconceived. The reliance on the judgments prescribing the conditions in which an entity can be treated as 'State' within the meaning of Article 12 of the Constitution of India, is wholly misplaced.
25. This issue has also been adjudicated by two Division Benches in Vishakha Mahendra Patel (supra) Page 45 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined and Sheetal Yashwantkumar Parmar (supra) in the judgment and orders dated 15.09.2012 and 22.08.2013; respectively, while upholding the validity of Rule 5(2) of the 2013 Rules, which was pari materia to Rule 4(6) of 2017 Rules (amended from time to time). The observations of the Division Bench in Sheetal Yashwantkumar Parmar (supra) on the aspect of treating the children of persons employed by public sector undertakings are relevant to be extracted hereinunder :-
"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 Page 46 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 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 *** *** ***"
26. For the above discussion, the petitioner cannot be treated at par with the wards of employees falling in the category in Sub-rule (6) of Rule 4 of Rules, 2017. Further, the petitioner has failed to meet the eligibility criteria prescribed in Rule 4 of the Rules, 2017 (amended from time to time), and, as such, he cannot be included in the zone of consideration. No infirmity is found in the decision of the respondents in including the name of the petitioner in the list of disqualified candidates uploaded at the website of the Admission Committee on Page 47 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023 NEUTRAL CITATION C/SCA/12948/2023 CAV JUDGMENT DATED: 13/10/2023 undefined 01.08.2023. The challenge to the said list, therefore, is liable to be turned down. No relief can be granted to the petitioner. The writ petition is dismissed, accordingly. No order as to costs.
(SUNITA AGARWAL, CJ ) (N.V.ANJARIA, J) GAURAV J THAKER Page 48 of 48 Downloaded on : Fri Oct 13 20:51:13 IST 2023