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PETITIONER:

DR. PARAG GUPTA

Vs.

RESPONDENT:

UNIVERSITY OF DELHI & ORS.

DATE OF JUDGMENT: 26/04/2000

BENCH:

R.C.Lahoti, S.R.Babu

JUDGMENT:

RAJENDRA BABU, J. :

Students who had qualified for medical degree course

got admission under the All India quota of 15 per cent and

migrated to different States to pursue the course of study

and are now seeking admission into Postgraduate courses.

Their grievance is that the States or concerned authorities

have framed admission rules in such a way that they can

neither pursue their studies in the migrated State nor in

their home State.

Before we address to the controversy we may briefly

survey a few decided cases. In Jagadish Saran (Dr.) v.

Union of India, 1980 (2) SCC 768, the admission rules

prescribed by the Delhi University provided that 70% of the

seats at the post graduate level in the medical courses

shall be reserved for students who had obtained their MBBS

degree from the same university and the remaining 30% seats

were open to all, including the graduates of Delhi. After

considering the decisions rendered till that day, this Court

took the view that "university-wise preferential treatment

may still be consistent with the rule of equality of

opportunity where it is calculated to correct an imbalance

or handicap and permit equality in the larger sense. If

University-wise classification for post graduate medical

education is shown to be relevant and reasonable and the

differentia has a nexus the larger goal of equalisation of

education opportunities the vice of discrimination may not

invalidate the rule." The admission to post graduate medical

course are determined on the basis of a common entrance test

inasmuch as the students of Delhi University are drawn from

all over India and are not confined to the Delhi region.

The rule was held to be not invidious and recognised the

desires of the students for institutional continuity in

education and recognised as one of the grounds justifying

the reservation. The argument of excessive reservation in

that case could not be considered on the ground of

inadequacy of material on record.

In Pradeep Jain (Dr.) v. Union of India, 1984 (3) SCC

654, this Court opined that wholesale reservation made by

some of the States on the basis of `domicile' or requirement

of residence within the State or on the basis of

institutional preference for students who have passed the

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qualifying examination held by the university or the State

and excluding the students not satisfying the said

requirement, regardless of merit, is unconstitutional and

being violative of Article 14 of the Constitution.

Declaring that anyone from anywhere in the country,

irrespective of his language, religion, place of birth or

residence, is entitled to be afforded equal chance of

admission to any secular educational course anywhere in the

country, but, at the same time, recognising the factual

position as to inequalities existing in the society and the

need for affirmative action on that account, this Court

directed that certain percentage of seats in the MBBS course

and post graduate medical courses in all the government

colleges in the State should be set apart for being filled

purely on the basis of merit and students from all over the

country were entitled to compete for these seats and the

admission was directed to be based upon merit and merit

alone. On further consideration of the matter, the

percentage was fixed at 15% to students level and 25% P.G.

level in a later decision in Dinesh Kumar (Dr.) (II) v.

Motilal Nehru Medical College, 1986 (3) SCC 727. It was,

however, made clear that so far as super-specialties are

concerned there should be no reservation either on the basis

of institutional preference or otherwise and that admissions

should be granted purely on merit determined on all-India

basis. In State of Rajasthan v. Dr. Ashok Kumar Gupta,

1989 (1) SCC 93, the preference provided for admission to

post graduate medical courses in the colleges affiliated to

the Rajasthan University should be based upon the merit

determined at the competitive examination, however,

providing for 5 increasing marks if the applicant passed the

final MBBS examination from the Rajasthan University and

another 5 marks if the applicant passed the final MBBS

examination from the same institution for which selections

are being made was considered. This Court noticed that all

the medical colleges in the State of Rajasthan located at

Jaipur, Bikaner, Udaipur, Jodhpur and Ajmer were not

similarly situated and the students who have passed their

examination from Jaipur Medical College in the matter of

admission to post graduate medical courses in that medical

college brought about an extremely unfair and unjust result.

It was pointed out that by virtue of rule of preference

students with far less marks would steal a march over a

student securing higher marks only because he has passed his

MBBS examination from the same college.

In Anant Madaan v. State of Haryana, 1995 (2) SCC

135, challenge was to a rule made by the Government of

Haryana providing that in the matter of admission to MBBS

and BDS courses, 80% of the seats shall be reserved for

candidates who have studied 10th, 11th and 12th standards as

regular candidates in recognised institutions in the State

of Haryana. This challenge was levelled by students who had

passed their 10th, 11th and 12th examinations from schools

and colleges outside the State of Haryana but whose parents

were either residing in or domiciled in the State of

Haryana. The challenge to the rule was repelled following

the decision of this Court in D.P. Joshi v. State of M.P.,

1955 (1) SCR 1215, and Jagadish Saran (supra), Dr. Pradeep

Jain (supra) and Dinesh Kumar (supra) treating the rule

providing for preference on the ground of domicile or

residence to be valid.

In Sanjay Ahlawat v. Maharishi Dayanand University,

1995 (2) SCC 762, the challenge before the Court was in

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respect of a rule providing for admission to post graduate

medical courses preference being given to local students by

adding ten extra marks. The validity of the rule was

sustained on the basis that it was not a case of college

wise or university wise reservation but it is a rule

providing for preference on the basis of domicile.

These decisions lead us to the following principles.

Though university wise preference is permissible,

college wise preference is not. 70% to 80% reservation has

been sustained even where the students from different

universities appear at a common entrance test. After the

decisions in Dr. Pradeep Jain (supra) and followed by

Dinesh Kumar (supra) the practice all over the country was

to make 15% of the seats in MBBS course and 25% of the seats

in post graduate medical courses in all the government

medical colleges in the country available on the basis of

merit alone. Students from anywhere in the country can

compete for these seats which are allotted on the basis of

an all-India test conducted by the designated authority.

The rule of preference on the basis of domicile or

requirement of residence is not bad provided it is within

reasonable limits and does not result in reserving more than

the aforesaid percentage. Where the students from different

universities appear at a common entrance test the rule of

university-wise preference loses its relevance. The

explanation of difference in evaluation, standards of

education and syllabus lose much of their significance when

admission is based upon a common entrance test. At the same

time, the right of the State Government to regulate the

process of admission and their desire to provide for their

own students should also be accorded due deference. In the

light of these principles, we examine the facts arising in

the present case.

There are 32 States and Union Territories which

provide for medical education. At the graduate level

(M.B.B.S.), except Jammu & Kashmir and Andhra Pradesh, all

the States and Union Territories pool 15% seats to be filled

from common entrance examination on all-India basis, rest of

the 85% of seats are filled by holding entrance examination

at the State level. In 15% seats filled on All-India basis

students from one State have to migrate to other State

allotted to them for pursuing MBBS course. 18 States and

Union Territories, apart from Jammu & Kashmir and Andhra

Pradesh, provide post graduate medical courses on pooling

25% seats to be filled on all-India basis by a common

entrance examination conducted by AIIMS. All MBBS qualified

students can compete for admission without any restriction

in this 25% quota and for filling the remaining 75% seats in

post graduate courses the States or Union Territories have

adopted different criteria for admission. Some states have

adopted institutional preference, while some others

residential preference. Various States having different

criteria of reservation may be tabled as follows :-

State Nature of Preference 1. UP Institutional 2.

Delhi Institutional 3. Maharashtra Institutional 4.

Gujarat Institutional 5. West Bengal Institutional 6.

Assam Residence 7. Tamil Nadu Residence 8. Goa Residence

9. Karnataka Residence 10.Madhya Pradesh Institutional OR

Residence 11. Haryana Institutional OR Residence 12.

Punjab Institutional OR Residence 13. Rajasthan

Institutional OR Residence 14. Kerala Institutional OR

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Residence 15. Orissa Institutional OR Residence 16.

Himachal Pradesh Institutional OR Residence 17. Bihar

Institutional OR Residence 18. Pondicherry 25% All India

quota + 37.5 % inst- itutional of available seats + 27.5% of

available seats open for all

The contention put forth before us is that the

different criteria adopted by different states encroach upon

the rights of the students who have qualified MBBS under the

15% all-India quota who invariably migrate to other States

from their home-State and do not get any opportunity for

advancement of their career in their home-State as they are

debarred for admission on account of different criteria,

either on account of reservation on the ground of

residential requirement in the migrating State or on the

ground of institutional preference adopted by the State or

Union Territories or Universities.

Writ Petition (Civil) No. 12 of 1999 filed by Dr.

Parag Gupta may be taken as an illustrative case. The plea

put forward by the writ petitioner in this case is that he

is born and brought up in Delhi and, therefore, he should be

permitted to participate in the entrance examination being

conducted by the Delhi University and should be considered

for admission by Delhi University against the 75% seats.

The plea put forth is that he studied the MBBS course in

Tamil Nadu having been allotted to Tamil Nadu under the 15%

quota of seats being filled up on all-India basis by the

Director General Health Service pursuant to the scheme

framed by this Court after the decision in Dr. Pradeep Jain

(supra) and neither he is permitted in Tamil Nadu to appear

in the entrance examination on the ground that he is not a

resident of that State nor is he allowed to take the

entrance examination being conducted by the Delhi University

because he did not study for the last five years in the

Delhi University. On the other hand, the stance of the

Delhi University is that the petitioner can certainly

compete for the all-India 25% of seats earmarked to be

filled up on all-India basis from the candidates selected

and sponsored by the Director General of Health Services,

the remaining 75% having been earmarked for students who

have graduated from Delhi University, he is not entitled to

claim admission at all. Like most of the Universities

across the country, even in Delhi University, reservation of

seats other than the seats being filled up on all-India

basis is on the basis of institutional preference, that is,

the seats are reserved to be filled up in the post graduate

medical courses in favour of students who have passed their

MBBS course from the Delhi University. Irrespective of the

place of birth and having been a resident of Delhi if an

applicant is an MBBS graduate of the Delhi University, he is

eligible to be considered for admission against 75% seats.

This Court had upheld the validity of the criteria in view

of the peculiar circumstances arising in Delhi University in

Jagadish Saran (supra), to which we have adverted to

earlier. This criteria was again considered by a Three

Judge Bench of this Court in Dr. Pradeep Jain (supra) and,

it is submitted that, since the criteria has already been

upheld by this Court the challenge to the same is

mis-conceived and is not maintainable at all. Inasmuch as

the petitioner is not an MBBS graduate of Delhi University

the proper course for him would be to seek a direction from

the State of Tamil Nadu where he was a student of MBBS

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course that he should be permitted to seek admission in the

post graduate medical courses in the State of Tamil Nadu and

the requirement of domicile stipulated by the State of Tamil

Nadu be considered to be invalid. It is further submitted

that the petitioner would have an unfair advantage inasmuch

as he had secured admission under 15% all-India quota, he

would became ineligible in the State of Tamil Nadu even

though he is a medical graduate from that State and would be

deemed to be eligible from Delhi merely on the ground that

he was born and brought up in Delhi; that because he

obtained a low position in comparision to a large number of

other candidates with whom he is competing for the MBBS

course in the Delhi University, he would gain an unfair

advantage on this and the petitioner being fully aware of

the criteria followed by the Delhi University to the MBBS

courses by the time he chose to secure admission in Tamil

Nadu from all-India quota having been unable to secure

admission in Delhi University. It is contended that if the

claim put forward by the petitioner is accepted, then he

would become eligible in 25% all-India quota in all

institutions all over the country and would also become

eligible for 75% seats in Tamil Nadu and 75% in Delhi. Thus

he would have opportunity of competing against 175% of

seats. As regards the meritorious candidates in Delhi they

would be eligible against 100% of seats - 25% all-India

quota and 75% seats in the Delhi University and thus it

would confer unjustified favour and benefits to all such

candidates as the petitioner in the present case. If the

pattern followed by the Delhi University is adopted and

followed by all institutions and States throughout the

country which is in conformity with the norms laid down by

this Court it would ensure that no candidate secures any

unfair advantage in admission to post graduate courses. If

the institutional preference is adopted as a uniform

criteria for reservation for post graduate courses, it would

ensure that every candidate irrespective whether he secures

admission to the MBBS courses from 85% seats reserved for

local candidates or 15% seats for all-India basis or whether

he was allotted in the State of his origin or residence, or

to any other State, will have an equal opportunity to appear

in post graduate course. Further it is contended that other

institutions and States which have adopted the criteria of

domicile for State quota ought to be directed to discontinue

the same and reservation, if any, should be done as is

permitted in Dr. Pradeep Jain (supra) case on the basis of

institutional preference.

In this background, we have to evolve a principle

which is equitable to all. Taking into consideration local

and regional compulsions we have to strike a balance so that

students who have pursued studies in a particular university

or State are not invidiously stranded or marooned. The

grievance of the petitioners, if examined closely, is very

limited and that is these students who have gone out of

their home-States to pursue studies else where on All India

quota should be allowed to participate to compete in their

home-States where they have their roots, to pursue post-

graduate studies.

The objection of the University and the intervening

students is that such students will have an unfair advantage

of competing in All India quota + home-State quota +

institutional quota in that University where they studied.

We fail to see any unfair advantage in this regard inasmuch

as all students have to take common entrance test with

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reference to their home State and face stiff competition.

The students in home State if at all are put to disadvantage

only to a small degree of taking competition with respect to

very few students falling in that category of the

petitioners. On the other hand, inclusion of such students

will make it broad based as well thereby striking a balance.

Thus, we think, if students of the home State are also

allowed to participate in the entrance test, there will be

uniformity all over the country and small disadvantage

removed with respect to a small section of student community

does not disturb the balance and the advantage derived

achieves uniformity.

The Delhi University appears to have conducted its

entrance examination and we had allowed the petitioners to

participate in the same whose results will now have to be

declared. Counselling in the Delhi University has gone on

10.4.2000 and 11.4.2000 and when we permitted the

petitioners to participate in such counselling subject to

result of these petitions, the University thought fit to

cancel such counselling already done and postponed the same.

In these peculiar circumstances, we have riveted our

attention only to the imminent problem arising and in the

manner presented before us. We are not called upon to

decide the larger issues requiring detailed examination of

the effect of earlier decisions of this Court and extent or

manner of reservation based on residence and/or institution

with reference to conditions prevailing in each of the State

and how the same will have to be maintained or properly

balanced.

On this basis we think the States/Union

Territories/Universities should allow students who had

pursued courses outside their home State to participate in

the entrance examination held in their home State

irrespective of any kind of preference that may have been

adopted for selection to P.G.medical course.

Before parting with this case, we make it clear that

we are not deciding that vexed question of attaining

uniformity in all P.G.courses all over the country except to

the extent indicated earlier nor we are in a position to say

whether institutional preference based on any study in an

institution or requirement of residence or both fully

complies with the various directions issued by this Court

from time to time. We, therefore, think that it would be

appropriate for the concerned States or other authorities to

achieve uniformity by adopting institutional and/or

residential preference in terms of the decisions referred to

by us as otherwise, if challenged, may not stand scrutiny of

the Court.

The petitions are allowed to the extent indicated

above.