Municipal
Corporation of Greater Bombay & Ors Vs. Thukral Anjali Deokumar & Ors
[1989] INSC 77 (7 March
1989)
Dutt,
M.M. (J) Dutt, M.M. (J) Thommen, T.K. (J)
CITATION:
1989 AIR 1194 1989 SCR (1) 919 1989 SCC (2) 249 JT 1989 (1) 468 1989 SCALE
(1)670
CITATOR
INFO : R 1992 SC1475 (4,5)
ACT:
Constitution
of India, 1950--Art. 14--Educational Insti- tutions--Medical
Colleges--Admission to--Any preference other than the merit discriminatory--Not
reasonable classi- fication.
Rules
framed by Bombay Municipal Corporation--Admission to Post Graduate and diploma
courses in Medical Colleges.
Rules
4A and 5--College-wise Institutional preferences for admission to M.D.
Courses--Held bad--Any preference other than merit--Discriminatory and
unreasonable classifi- cation.
HEAD NOTE:
There
are four Medical Colleges in the City of Bombay, all affiliated to the University of Bombay. Out of four, three colleges are
run by the Municipal Corporation and one is run and conducted by the State of Maharashtra. Rule 4A framed by the Municipal
Corporation and Rule 5 framed by the State Govt. vide Govt. Resolution dated June 18, 1971 govern the admissions of students
to post-graduate degree and diploma course in the respective Medical Colleges.
Both
the aforesaid Rules provide for collegeate institu- tional preference for
admission in the M.D. Course. In other words, in each college, candidates who
passed their M.B.B.S. exam from that college were to be preferred for purposes
of admission to the Post-Graduate M.D. degree, no matter wheth- er the
candidates had secured less marks than those who secured higher marks, having
passed the M.B.B.S. Exam. from other colleges. On this basis some candidates
who were not able to secure admission to the M.D. Course in the respec- tive
colleges from which they had passed their M.B.B.S. Examination were not also
admitted in the other medical colleges in the City of Bombay, in view of
college wise institutional preferences as provided by Rule 4A and Rule 5
referred to above. Those students/candidates challenged the validity of the
afore-said Rule 4A and Rule 5 framed by the Municipal Corpn. and the State
Govt. in the High Court, as being violative of Art. 14 of the Constitution. The
High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A
in whole and Rule 5 in so far as it applies to the Govt. Medical College, as discriminatory and violative of
Art. 14 of the Constitution and thus in- valid. Hence these appeals by Special
Leave.
Dismissing
the appeals with some directions, the Court,
HELD:
When the University is the same for all these colleges, the syllabus, the
standard of examination and even the examiners are the same, any preference to
candidates to the post-graduate degree course of the same University except in
order of merit, will exclude merit to a great extent affecting the standard of
educational institutions.
In
such circumstances, college-wise institutional prefer- ence cannot be supported
and, this Court has not approved of such preference at all. [931F-G] So far as
educational institutions are concerned unless there are strong reasons for
exclusion of meritorious candi- dates, any preference other than in order of
merit, will not stand the test of Art. 14 of the Constitution. [932C-D] The
Rules are discriminatory and do not satisfy the test of reasonable
classification and as such, cannot be sus- tained. The Court accordingly
dismissed the appeals and directed that the students who have been admitted to
post- graduate M.D. Course pursuant to the impugned Rules, their admission
shall not be interfered with or disturbed. [933E] The High Court has directed
to the appellants to frame rules adopting certain alternative methods for
admission in the Post-graduate M.D. Course for the next year. The said
directions appear to be in the nature of suggestions by the High Court and the
appellants will be free to frame the rules for admission in the Post-graduate
M.D. Course in the said four colleges in the City of Bombay in conformity with the provision of
Art. 14 of the Constitution and in the light of the Judgment of this Court and
in framing the Rules, the appellants may take into consideration the sug- gestions
of the High Court. [934G-H; 935A] Dr Pradeep Jain v. Union of India & Ors.,
[1984] 3 S.C.R. 942, distinguished.
Nidamarti
Mahesh Kumar v. State of Maharashtra & Ors., [1986] 2 S.C.C. 534, not
applicable.
921 Jagdish
Saran & Ors. v. Union of India & Ors., [1980] 2
S.C.R. 831, not applicable.
State
of Rajasthan & Anr. v. Dr. Ashok Kumar Gupta & Ors., [1989] 1 S.C.C.
93, not applicable.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2792 of 1988 Etc.
From
the Judgment and Order dated 27.7.1988 of the Bombay High Court in W.P. No.
3264 of 1988.
G. Ramaswamy,
Additional Solicitor General, T.R. Andya- rujuna, V.V. Vaze, V.M. Tarkude, D.N.
Misra, M.D. Siodia, Pinaki Misra, P.H. Parekh, Ms. Sunita Sharma, A.M. Khanwil-
kar, A.S. Bhasme, Dalveer Bhandari, Vijay Thorat, Raian Karanjawala, Mrs. Manik
Karanjawala, Ms. Meenakshi Arora, V.D. Khanna, Rameshwar Nath, B.R. Agarwal, P.K.
Pillai, P.N. Gupta, Shri Narain, Madhuri Gokhale, Prangalia and N. Nettar for
the appearing parties.
The
Judgment of the Court was delivered by DUTT, J. The principal point involved in
these appeals relates to the constitutional validity of rule 4(A) of the Rules
flamed by the Bombay Municipal Corporation for admis- sion to post-graduate
degree and diploma courses in its medical colleges framed on June 18, 1988 and
rule 5 framed under the Government Resolution dated June 18, 1971 for admission
to the Government Medical College, both the rules providing for collegewise
institutional preference for admission in the M.D. Course. By the impugned
judgment, the High Court allowed the writ petitions out of which these appeals
arise, and struck down the impugned rule 4(A) in whole and rule 5 (wrongly
stated as rule 6 in the High Court judgment), in so far as it applies to the
Government Medical College in the city of Bombay, as discriminatory and viola- tive
of Article 14 of the Constitution and, accordingly, invalid.
Rule
4(A) is as follows:-- "4. PREFERENCE:
(A)
While selecting candidates for admission to the postgraduate courses preference
will be given in the following order:-- 922 (a) Candidates applying for
admission at the parent institution.
(Note:
Parent institution means the medical college at which the candidate has passed
his qualifying examination).
(b)
Candidates who have graduated from other Municipal Medical Colleges in Brihan
Mumbai." Relevant portion of rule 5 framed under the Government Resolution
dated June 18, 1971 reads as follows:
"
5. ...........................................
................
.
While
selecting from amongst eligi- ble candidates preference will be given to the
students of that college i.e. who passed their final M.B.B.S. Examination from
that college in Broad specialities and their ancillary discipline." There
are four medical colleges in the city of Bombay, and affiliated to the University of Bombay. Of these four medical colleges,
three are run and conducted by the Bombay Municipal Corporation, namely, Lokmanya
Tilak Memorial Medical College (LTMMC), Seth G.S. Medical College (GSMC) and Topiwalla
National Medical College (TNMC). The only college that is being run by the Maharashtra
Government in the city of Bombay is
Grant Medical College (GMC). It is not necessary to state in details the facts
leading to the filing of the writ petitions before the High Court out of which
these appeals arise. Suffice it to say that some candidates who were not
admitted in the M.D. Course in the respective colleges from which they had
passed their MBBS Examination, were not also admitted in the other medical
colleges in the city of Bombay, in view of collegewise institutional preference
as provided by rule 4(A) in respect of three Municipal Colleges and by rule 5
relating to GMC, the Maharashtra Government College. The High Court, as stated
already, struck down rule 4(A) and rule 5 in part and allowed the writ
petitions. Hence these appeals by special leave.
It is
Urged by Mr. G. Ramaswamy, the learned Additional Solicitor General, that this
Court in Dr. Pradeep Jain v. Union of India & Ors., [1984] 3 SCR 942 has
given sufficient indication of its approval 923 of collegewise institutional
preference. While the learned Additional Solicitor General frankly concedes
that he is not in a position to support cent percent institutional prefer- ence
or reservation of seats for admission in the M.D. Course in the Municipal
Colleges and the Government College in the city of Bombay, such preference or
reservation in respect of certain percentage of seats is quite permissible and
will not be hit by the provision of Article 14 of the Constitution.
In Pradeep
Jain's case, the question that has been considered by this Court as noted by Bhagwati,
J. (as he then was) is whether, consistently with the constitutional values,
admissions to a medical college or any other insti- tution of higher learning
situate in a State can be confined to those who have their domicile within the
State or who are resident within the State for a specified number of years or
can any reservation in admissions be made for them so as to give them
precedence over those who do not possess domicile or residential qualification
within the State, irrespective of merit. The question that has been formulated
and consid- ered does not show, on the face of it, that college wise
institutional preference was also involved as a part of the question. It has
been ruled in Pradeep Jain's case that effort must always be to select the best
and most meritori- ous students for admission to technical institutions and
medical colleges by providing equal opportunity to all citizens in the country,
and that it would be against na- tional interest to admit in medical colleges
or other institutions giving instruction in specialities, less meritorious
students when more meritorious students are available. So, wholesale
reservation on the basis of domicile or residen- tial requirement within the
State or on the basis of insti- tutional preference for students who have
passed the qualifying examination held by the University or the State ex- cluding
all students not satisfying this requirement, re- gardless of merit, has been
condemned. The Court took the view that reservation of seats based on
residential require- ment within the State or on institutional preference
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 reservation validly
made, the 70 per cent reserva- tions needs to be reduced if the Indian Medical
Council determines a shorter outer limit.
The
institutional preference that has been referred to in the observation of Bhagwati,
J. does not at all relate to collegewise institutional preference, with which
we are concerned. The learned Additional Solicitor General has, however, placed
strong reliance on the following observation made by Bhagwati, J. in Pradeep
Jain's case which is ex- tracted below:-- 924 "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 re- quirement 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 M.B.B .S. course from a medical college or
university may be given preference for admission to the post- graduate course
in the same medical colleges or university but such reservation on the basis of
institutional preference should not in any event exceed 50 per cent of the
total number of open seats available for admission to the post-graduate 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 M.B.B.S. course. But, even in regard to admis-
sions to the post-graduate course, we would direct that so far as super specialities
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." It is urged by the
learned Additional Solicitor General that in Pradeep Jain's case college wise
institutional pref- erence has been recognised and upheld, as is apparent from
,the above observation, particularly from the observation "a certain
percentage of seats may, in the present circum- stances, be reserved on the
basis of institutional prefer- ence 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 medi- cal colleges or
university, but such reservation on the basis of institutional preference
should not in any event exceed 50 per cent of the total number of open seats
avail- able for admission to the post-graduate course." It is true the
expression "institutional preference" has been used in the said
observation in respect of a medical college or a university, but we do not
think that in making that observa- tion Bhagwati, J. had in his mind 925 collegewise
institutional preference. Any observation in a judgment has to be read and
understood in the context of facts of that particular case in respect of which
such observation has been made. As has been pointed out, the question that has
been considered in Pradeep Jain's case relates to reservation of seats in
medical colleges on the ground of domicile or residential qualification within
the State irrespective of merit. It was not the case of anybody that
reservation of seats. should be made on the ground of collegewise institutional
preference. The institutional preference that was considered in the case was
university- wise institutional preference and not collegewise institu- tional
preference. It is also apparent from the judgment of Amarendra Nath Sen, J.,
who delivered a separate but concur- ring judgment, that the Court had no
occasion to consider the question of collegewise institutional preference in
matters of admission to M.D. Course. In the circumstances, we are unable to
accept the contention of the learned Addi- tional Solicitor General that this
Court in Pradeep's Jain's case has upheld or recognised collegewise
institutional preference of seats in medical colleges for admission in M.D.
Course.
The
position is clarified in a subsequent decision of this Court in Nidamarti
Mahesh Kumar v. State of Maharashtra and others, [1986] 2 SCC 534 which related
to the constitu- tional validity of regionwise reservation of seats in medi-
cal colleges. It has been observed by Bhagwati, C.J. that where the region from
which the students of a university are largely drawn is backward either from
the point of view of opportunities for medical education or availability of
competent and adequate medical services, it will be consti- tutionally
permissible, without violating the mandate of the equality clause to provide a
high percentage of reservation or preference for students coming from that
region because without reservation or preference students from such back- ward
region will hardly be able to compete with those from advanced regions, since
they would not have adequate oppor- tunity for development so as to be in a
position to compete with others. Further, it has been observed that it would
not be unconstitutional for the State to provide for reservation or preference
in respect of a certain percentage of seats in the medical college or colleges
in each region in favour of those who have studied in schools or colleges
within that region and even if the percentage stipulated by the State
Government is on the higher side, it would not fall foul of the constitutional
mandate of equality.
In
respect of such reservation of preference the reasons that have been given are
that it would cause considerable hardship and incon- 926 venience if students
residing in the region of a particular university are compelled to move to the
region of another university for medical education which they might have to do
if selection for admission to the medical colleges in the entire State were to
be based on merit without any reserva- tion or preference regionwise. There may
be a large number of students who, if they do not get admission in the medical
college near their residence and are assigned admission in a college in another
region on the basis of relative merit, may not be able to go to such other medical
college on account of lack of resources and facilities and in the result, they
would be effectively deprived of real opportu- nity for pursuing the medical
course even though on paper they would have got admission in the medical
college. Fur- ther, it has been pointed out that some difficulty would arise in
case of girls because if they are not able to get admission in the medical
college near the place where they reside they might find it difficult to pursue
medical educa- tion in a medical college situated in another region where
hostel facilities may not be available and even if hostel facilities are
available, the parents may hesitate to send them to the hotels.
Even
with regard to regionwise reservation of certain percentage of seats in medical
colleges, except for the reasons mentioned above, this Court in Nidamarti's
case has turned down the contention that the provision of the im- pugned rule,
that is, students from a school or college situate within the jurisdiction of a
particular university would not be eligible for admission to medical college or
colleges situate in the jurisdiction of another university, but would be
confined only to medical college or ,colleges within the jurisdiction of the
same university, was intended to give protection to students in certain rural areaS,
the population of which is socially, economically and education- ally backward,
for otherwise they would have not been able to compete with students from
advanced regions and, conse- quently, the classification made by the provision
was con- stitutionally permissible. Thus, except in certain circum- stances,
even regionwise reservation of seats in medical colleges has not been approved
by this Court. In Pradeep Jain's case, merely because the expression
"institutional preference" has been used with reference to a student
pass- ing the MBBS Course from a medical college or a university, it does not
necessarily follow that the Court had in its contemplation or was laying down
college wise institutional preference.
In support
of the contention that college wise institu- tional preference or reservation
of seats was in the contemplation of this Court, reliance has been placed on
behalf of the appellants on an earlier 927 decision of this court in Jagdish
Saran & Ors. v. Union of India & Ors., [1980] 2 SCR 831. In that case,
of the three learned Judges, Krishna Iyer, J. delivered the judgment for
himself and for Chinnappa Reddy, J. Pathak, J. (as he then was) agreed with the
judgment of Krishna Iyer, J. that the writ petition should be dismissed, but he
gave his own reasons. The reasons of Pathak, J. are, inter alia, con- tained in
the following observations:
"It
is not beyond reason that a student who enters a medical college for his
graduate studies and pursues them for the requisite period of years should
prefer on graduation to continue in the same institution for his post-graduate
studies. There is the strong argument of convenience, of stability and
familiarity with an educational environment which in different parts of the
country is subject to varying economic and psychological pressures. But much
more than convenience is involved. There are all the advantages of a continuing
frame of educational experience in the same educational institution. It must be
remembered that it is not an entirely differ- ent course of studies which is
contemplated;
it is
a specialised and deeper experience in what has gone before. The student has
become familiar with the teaching techniques and standards of scholarship, and
has adjusted his responses and reactions accordingly. The continuity of studies
ensures a higher degree of competence in the assimilation of knowledge and
experience. Not infrequently some of the same staff of Professors and Readers
may lecture to the post-graduate classes also.
Over
the under-graduate years the teacher has come to understand the particular
needs of the student, where he excels and where he needs an especial
encouragement in the removal of deficiencies. In my judgment, there is good
reason in an educational institution extending a certain degree of preference
to its graduate for admission to its post-graduate classes.
The
preference is based on a reasonable clas- sification and bears a just
relationship to the object of the education provided in the post-graduate
classes. The concept of equality codified in our constitutional system is not
violated. It has been said sometimes that classification contradicts equality.
To my mind, classification is a feature of the very core of equality. It is a
vital concept in ensuring equality, for those who are similarly situated alone
from a class between them- selves, and the classification is not 928 vulnerable
to challenge if its constituent basis is reasonably related to achieving the
object of the concerned law. An institutional preference of the kind considered
here does not offend the constitutional guarantee of equality." The above
observations or reasons should not be read or understood dehors the facts and
the questions involved for the determination of this Court. The facts of that
case will be stated presently. The University of Delhi has many post- graduate
and diploma courses in the faculty of medicine providing in all 250 seats. The
three medical colleges in Delhi turn out annually 400 medical graduates who get
house-jobs in the local hospitals and qualify themselves for postgraduate
course. As the graduates from the Delhi Univer- sity could not be accommodated
fully or even in part for the post-graduate course in Medicine and as these
graduates were not considered for admission into other universities, Delhi University had earmarked some seats at the post-graduate level in
Medicine for the medical graduates of Delhi University. By the impugened rule, 70 per cent
of the seats at the post-graduate level was reserved for Delhi graduates and 30
per cent of the seats was kept open to all including gradu- ates of Delhi. It
was, therefore, not a case of college wise reservation, but 70 per cent
reservation of seats in the medical colleges under the Delhi University for the medical graduates of that University. The question
of collegewise institutional preference or reservation of seats did not at all
arise, nor was it argued or sought to be decided in Jagdish Saran's case. It is
true that the observation of Pathak, J., without reference to the context of
the facts and the question involved in that case, may support to some extent
the contention of the appellants, but the contention has to be rejected on a
reference to the facts and the question involved in that case.
It is,
however, submitted by the learned Additional Solicitor General that there are
some special facts and circumstances which justify collegewise reservation as
provided by the impugned rules 4(A) and 5. It is stated by him that while the
theoretical examinations in MBBS Course are conducted by the University, the
practical examinations involving 50 per cent of the total marks are held by the
individual colleges. Counsel submits that in such circum- stances the merits of
the candidates passing the MBBS Exami- nation from these four colleges are
difficult to be compared and evaluated for the purpose of admission in the M.D.
Course.
This submission has also been made by Mr. Baze, learned Counsel appearing on
behalf of the University of Bombay.
929 We
regret, we are unable to accept such a contention. It is not disputed that in
each college the practical examina- tions are conducted by a set of four
examiners consisting of one internal examiner from the same college, one
external examiner from one of the other three colleges and two exter- nal
examiners from outside Bombay. Thus, excepting one internal examiner, three
other examiners are external exam- iners and all those examiners are presumably
appointed by the University. These examiners are of high academic quali- fications
and we fail to understand why they would deviate from the standard prescribed
by the University for the assessment and evaluation of the merits of the
students in the practical examinations. There is, therefore, no sub- stance in
the contention that the standard of examination and evaluation of the merits of
students in such practical examinations differ from college to college. Indeed,
no material has been placed before us in support of the conten- tion that
different standards are adopted by the colleges in MBBS practical examinations.
Equally untenable is the con- tention that because of institutional preference,
the dif- ferent marks given by different colleges do not affect the students,
as it is the relative merit of the student in the same college which matters in
the selection of post-graduate students. We do not find any justification for
the apprehen- sion that if the institutional preference is removed and all the
candidates from the University are pooled together, a process of dilution and
undesirable racing are likely to start making a mockery of the examination
system and creat- ing mad race of overtaking the other colleges. This appre- hension
has been expressed by the Dean of Lokmanya Tilak Memorial Medical College in
his. affidavit filed before the High Court.
Another
ground in justification of collegewise institu- tional preference which has
been relied on by the Dean in his affidavit and urged before us on behalf of
the appel- lants is that the facilities differ from college to college in
respect of the pattern of patients coming to the hospital attached to each
college. By way of illustration, it is stated that in the hospital attached to Lokmanya Tilak Memorial Medical College there is maximum load of trauma
cases (accidents and injuries), the number of such cases is much higher than
that in the hospital attached to the three other colleges. The under-graduate
students in Lokmanya Tilak Memorial Medical College will have a wider exposure to these
cases and will be far more suitable for seat in the post-graduate course in
Surgery where he will have to actu- ally deal with these cases than a student
of any other college. Even assuming that the facts stated above are correct, we
do not think that the same constitute any ground in support of institutional
preference. It is the university which is required to maintain a standard in
respect of the 930 subjects in the colleges affiliated to it. It is not the
case of the University that the standard prescribed by it is not maintained in
different colleges or that any particular college is higher in standard in a
particular subject than that in another college. It may be that the number of acce-
dent and injury cases in the hospital attached to Lokmanya Tilak Memorial
Medical College is higher than the number of such cases in the hospitals
attached to other colleges, but that does not prove or lead to the conclusion
that the students of other colleges will be deficient in surgery or less
meritorious than the students of Lokmanya Tilak Memori- al Medical College. The
contention in this regard is without substance and is rejected.
Let us
now examine the question of collegewise institu- tional preference from the
point of view of Article 14 of the Constitution. By the impugned rules, a classification
has been sought to be made with the students of each partic- ular college
passing their MBBS Examination from that col- lege to the exclusion of all
other students obtaining their MBBS Degree from the other colleges. In order
that a classi- fication is a permissible one within the meaning of Article 14
of the Constitution, two tests are to be satisfied, namely, (1) that there is
an intelligible differentia which distinguishes persons grouped together from
those who are left out of the group; and (2) that there is a rational nexus to
the object sought to be achieved by the impugned rules. The object sought to be
achieved by the impugned rules is obviously to prefer merit for the
post-graduate course and to exclude less meritorious candidates. It will be
presently demonstrated that both the tests are not satis- fied in the instant
case. In this connection, we give below following tabular statement showing the
number of seats available in each of the said four colleges in some of the
disciplines.
COLLEGE
LTMMC TNMC GSMC GMS Students Intake 100 100 100 DISCIPLINE
1.
M.D. Obs. & Gyn. 2 1 5 3+ I(R)
2.
M.S. Orthopaedics 2 1 2 1
3.
M.S. General Surgery 4 2 3 3+ I(R)
4.
M.D. General Medicine 4 3 3 3+ I(R) 931 In Seth G.S. Medical College (GSMC),
there are five seats in Obstetrics and Gynaecology and one seat in Topiwala Nationl
Medical College (TNMC). In view of the impugned rules providing collegewise
institutional preference, five seats in Obstetrics and Gynaecology in Seth G.S.
Medical College were allotted to five of its students. Of these five students,
Dr. Ganpat Sawant secured 150 marks and the four other candidates secured marks
between 118 and 128 in the MBBS Examination. The respondents Dr. Anjali Deokumar
Thuk- ral and Dr. Sumeet Godambe, both students of Topiwala Na- tional Medical
College obtained respectively 140 and 143 marks in the MBBS examination. They,
however, were not admitted in their college, for there was only one seat in
Obstetrics and Gynaecology and that seat was alotted to a student of that
college who secured 156 marks in the MBBS examination. Thus, although Dr. Anjali
Deokumar Thukral and Dr. Sumeet Godambe secured more marks than the students
admitted in the post-graduate course in Obstetrics and Gynaecolocy in the said
G.S. Medical College, except the said Dr. Ganpat Sawant, they were refused
admission in view of collegewise institutional preference. Similarly, in
respect of other disciplines many meritorious students could not get admission
even though they secured higher marks than those admitted in the post-graduate
degree course by virtue of the impugned rules. Thus, there is a patent discrimina-
tion inasmuch as students obtaining lesser marks have been preferred to those
obtaining higher marks. There is no intelligible differentia for the
classification by way of collegewise institutional preference as provided by
the impugned rules distinguishing the preferred candidates in respect of each
college from those excluded from such clas- sification. By such classification
or collegewise institu- tional preference, merit has been sacrificed, far less
it has been preferred. When the university is the same for all these colleges,
the syllabus, the standard of examination and even the examiners are the same,
any preference to candidates to the post-graduate degree course of the same
university, except in order of merit, will exclude merit to a great extent
affecting the standard of educational insti- tutions. In such circumstances, collegewise
institutional preference cannot be supported and, it has already been noticed
that this Court has not approved of such preference at all.
State
of Rajasthan and another v. Dr. Ashok Kumar Gupta and others, [1989] 1 SCC 93
is a case of college-based institutional preference in respect of five medical
colleges in Rajasthan under the same University. The impugned Ordi- nance of
the University provided for addition of 5 per cent of the aggregate of marks
which work out to be 932 to 137.5 marks by way of institutional preference in
the sense of preference dependant on the particular medical college at which
the concerned candidate has passed his final MBBS Examination. This collegewise
institutional preference has been disapproved by this Court in that case and
the impugned Ordinance has been struck down. The learned Additional Solicitor
General sought to distinguish Dr. Ashok Kumar Gupta's case from the instant
case. We do not think that the said case is distinguishable from the case with
which we are concerned, inasmuch as in both the cases the question of collegewise
or college-based institutional preference is involved. It is stated that mode
or method adopted for giving collegewise institutional preference in Dr. Ashok
Kumar Gupta's case is different from the instant case but, in our opinion, nothing
turns out of that. So far as educational institutions are concerned, unless
there are strong reasons for exclusion of meritorious candidates, any
preference other than in order of merit, will not stand the test of Article 14
of the Constitution. So, the impugned rules are discriminatory and do not
satisfy the tests of reasonable classification and, as much, cannot be
sustained.
It is
next contended on behalf of the appellants that as the Bombay Municipal
Corporation has to spend a lot of money for the running of the three colleges
sponsored by it, seats for the postgraduate course should be reserved in these
three colleges for the students passing the MBBS Examination from any of these
colleges. If such reservation is allowed, the students of the Maharashtra
Government College, namely, the Grant Medical College, will not get any
admission in any of the three Municipal Colleges, even if the students or some
of them passing the MBBS Course from the Government College are more
meritorious than the students for whom the seats will be kept reserved in the
Municipal Colleges. It is urged that it will not be a case of collegewise
institution- al preference so far as the Municipal Colleges are concerned and
there should be no objection for the Bombay Municipal Corporation to give
preference to the students of the Munic- ipal Colleges, of course, to the
exclusion of the students of the Government College. This contention, in our opinion,
is without any substance. It may be that the Bombay Munici- pal Corporation has
to spend a lot of money for the colleges run by it, but that will be no ground
for making a discrimi- nation between the students of the Municipal Colleges
and those of the Government College affiliated to the same university, for the
purpose of admission in the post-gradu- ate degree course. Such discrimination
will not serve any object which can be justified on any rational basis. Such
reservation or preference also cannot be allowed, for if allowed, rule 5 of the
Rules framed under the 933 Government Resolution dated June 18, 197 1 will survive inasmuch as the
students of the Grant Medical College will only be admitted in the M.D.
Course. But, those students who could not be admitted in that College, will not
be eligible for admission in the Municipal Colleges. We are unable to permit
such discrimination in the matter of admission in the M.D. Course.
Another
ground on which collegewise institutional preference has been sought to be
justified by the learned Additional Solicitor General is on the basis of
institutional continui- ty. In support of this ground of institutional
continuity, the learned Additional Solicitor General has placed much reliance
on the observations of Pathak, J. in Jagdish Sa- ran's case, which has already
been extracted above. It was not a case of collegewise institutional preference
or insti- tutional continuity, and the said observations should not be
understood in that sense, but in the sense of institutional continuity in the
same university.
After
giving our thoughtful consideration to the question of collegewise
institutional preference, we are of the view that such preference or
reservation of seats is not permissible and the High Court has rightly struck
down both the impugned rule 4(A) flamed by the Bombay Municipal Corpo- ration
and part of rule 5 flamed under the Government Reso- lution, that is to say,
only in respect of its application to the Grant Medical College in the city of
Bombay relating to admission to post-graduate M.D. Course. We, however, make it
clear that the students who have been admitted to post- graduate M.D. Course
pursuant to the impugned rules, their admission shall not be interfered with or
disturbed.
At
this state, we may consider the submission of Mr. Lalit, learned Counsel
appearing on behalf of the applicants in C.M.P. No. 20748 of 1988 praying for
their impleadment as party-respondents to Civil Appeal No. 2792 of 1988. We do
not think that any useful purpose will be served by implead- ing them as
party-respondents to the appeal. The only prayer that has been made by Mr. Lalit
is that the applicants who have passed the diploma course from the Municipal
Colleges should be held to be eligible for admission in the M.D. Course with
credit for the diploma course in any of the Municipal Colleges. We are told by
the learned Counsel appearing for the State Government and the Bombay Municipal
Corporation that if the impugned rules are struck down, they will have to frame
fresh rules consistent with the judgment of this Court and, as we have directed
not 934 to disturb admission of the candidates in the post-graduate M.D. Course
pursuant to the impugned rules, we consider the prayer made by the applicants
as quite reasonable and, accordingly, direct that the applicants who have
passed the diploma course in the Municipal Colleges after passing the MBBS
Examination, will be eligible for admission in the post-graduate M.D. Course in
any one of the Municipal Col- leges with credit for the diploma course.
Mr. Tarkunde,
learned Counsel appearing on behalf of the respondents-writ petitioners,
submits that the cases of admission of some of the respondents, who have not
been admitted to the postgraduate degree course in certain spe- cialities of
their choice in view of the impugned rules, may be considered by the State of Maharashtra
and the Municipal Corporation of Greater Bombay, in case seats are available,
either in the Municipal Colleges or in the Grant Medical College, which is a
Government College. In our opinion, the prayer is quite reasonable and the
State of Maharashtra and the Bombay Municipal
Corporation are directed to consider the question of their admission, provided
seats are avail- able. The names of the said respondents and the respective
disciplines of their choice are given below:
1. Dr.
Anjali Deokumar Thukral M.D. Gynaecology and Obstetrics
2. Dr.
Atul Jaywant Galtonde M.S. Orthopaedics
3. Dr.
Naresh Kanayalal Navani M.S. General Surgery
4. Dr.
Anna Koshy Joseph M.D. General Medicine
5. Dr.
Vaishali Ramnik Doshi M.D. General Medicine Before we part with these cases, we
may dispose of one submission made on behalf of the appellants. Our attention
has been drawn to the fact that while striking down the impugned rule 4(A) and
impugned rule 5 in part, the High Court has directed the appellants to frame
rules adopting certain alternative methods for dismission in the post- graduate
M.D. Course for the next year, as stated in the judgment. The said directions
appear to be in the nature of suggestions by the High Court, and the appellants
will be free to frame rules for admission in the post-graduate M.D. Course in
the said four colleges in the city of Bombay in conformity with the provision
of Article 14 of the Constitution and in the light of the judgment of this
Court and in 935 framing the rules, the appellants may take into considera- tion
the suggestions of the High Court.
In the
result, Subject to the directions given above, the appeals are dismissed. There
will, however, be no order as to costs.
SPECIAL
LEAVE PETITION (CML) NO. 8883 OF 1988 WRIT PETITION (CIVIL) NO. 1253 OF 1988 For
the reasons aforesaid, Special Leave Petition and Writ Petition fail and are
dismissed without any order as to costs.
Y.L. Ap-
peals dismissed.
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