YATINKUMAR JASUBHAI PATEL AND OTHERS versus STATE OF GUJARAT AND OTHERS

[2019] 12 S.C.R.

AYATINKUMAR JASUBHAI PATEL AND OTHERS

STATE OF GUJARAT AND OTHERS

(Civil Appeal No 7939 of 2019)

BOCTOBER 04, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

Education/Educational Institutions:

Rules framed by University – Providing for institutionalCReservation/Preference – For admission in post-graduate medicalcourse – Challenged as being violative of Medical Council Actand Post Graduate Medical Education Regulations afterintroduction of NEET Scheme – Petition dismissed by High Court– Appeal to Supreme Court – Held: Institutional Preference/Reservation to the extent of 50% of total number of open seats isDpermissible – Introduction of NEET Scheme shall not affect suchpreference – Therefore the regulations providing for institutionalPreference/Reservation are not ultra vires to s. 10Dof MedicalCouncil Act – Medical Council Act, 1956 – s. 10D – Post GraduateMedical Education Admission Regulations – Reg. 9.

EDismissing the appeals/writ petitions, the Court

HELD: 1. The purpose and object of the introduction ofthe NEET Scheme was to conduct uniform entranceexamination for all medical educational institutions at the under-graduate level or post-graduate level and admissions at theFunder-graduate level and post-graduate level are to be givensolely on the basis of the merits and/or marks obtained in theNEET examination only. The only obligation by virtue ofintroduction of NEET is that, once centralized admission test isconducted, the State, its agencies, Universities and institutionsGcannot hold any separate test for the purpose of admission toPost-Graduate and PG and Diploma Courses and such seats areto be filled up by the State agencies, Universities/Institutionsfor preparing merit list as per the score obtained by theapplicants in NEET examination and therefore by introductionof the NEET, Section 10D of the MCI, Act has been amended,H

consequently amendment to the Post-Graduate EducationRegulations, 2000, admission to Post Graduate Courses aremade providing for solely on the basis of the score secured bythe candidates seeking admission based on centralizedexamination, i.e. NEET. [Para 10.3] [858-C-G]

2. Under the circumstances, introduction of the NEETScheme, as such, has nothing to do with the “InstitutionalPreference”. Therefore, the change by introduction of the NEETScheme shall not affect the Institutional Preference/Reservationas approved by this Court from time to time in catena ofdecisions. Under the guise of introduction of the NEET Scheme,the petitioners cannot be permitted to re-agitate and/or re-openthe issue with respect to Institutional Preference which has beenapproved and settled by this Court in catena of decisions. [Para10] [859-A-C]

3. Thus, Institutional Preference to the extent of 50% isapproved and it is observed and held that introduction of theNEET Scheme shall not affect such Institutional Preference/Reservation. Such regulation providing 50% InstitutionalPreference/Reservation shall not be in any way ultra vires toSection 10D of the Medical Council Act. Even otherwise, evenin the case of Institutional Preference/Reservation, theadmissions in the post graduate courses are to be given on thebasis of the merits and marks obtained in the NEET examinationresult only. [Para 12] [860-A-B]

4. So far as the question that if the 50% seats are reservedfor State quota and if institutional preference/reservation ispermitted to the extent of 50% of the total number of open seats,in that case, not single seat in the State quota shall be availableis concerned, it will be for the appropriate authority/State toconsider how much percentage seats are to be reserved forInstitutional Preference/Reservation. It will be in the realm ofa policy decision and this Court cannot substitute the same,unless it is held to be arbitrary and/or mala fide and/or notpermissible. [Para 11] [859-C-D-F]

Saurabh Chaudri v. Union of India2003 (11) SCC146 : [2003] 5 Suppl. SCR 152 – followed.

[2019] 12 S.C.R.

ADr. Pradeep Jain v. Union of India (1984) 3 SCC654 : [1984] 3 SCR 942 ;AIIMS Students’ Union v.AIIMS(2002) 1 SCC 428 : [2001] 2 Suppl. SCR 79 ;D.N. Chanchala v. State of Mysore (1971) 2 SCC293 ;Gujarat University v. Rajiv Gopinath Bhatt(1996) 4 SCC 60 : [1996] 2 Suppl. SCR 184 ;BSaurabh Dwivedi v.Union of India(2017) 7 SCC626 : [2017] 4 SCR 286 ; Dinesh Kumar (Dr.) (II) v.Motilal Nehru Medical College(1986) 3 SCC 727 :[1986] 3 SCR 345 – relied on.

State of U.P. v. Dinesh Singh Chauhan(2016) 9 SCCC749 : [2016] 6 SCR 571 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7939of 2019.FFrom the Judgment and Order dated 22.02.2017 of the HighCourt of Gujarat at Ahmedabad in Special Civil Application No. 19918of 2016

With

GW. P. (C) No. 122/2018, 1479/2018 and 1142/2019

Sidharth Luthra, Sr. Adv., Gaurav Agrawal, Puneet Jain,Ms. Christi Jain, Harshit Khanduja, Harsh Jain and Abhinav Deshwal,Advs. for the Appellants.

Ajit K. Sinha, Sr. Adv., Ms. Charu Mathur, Ms. Hemantika Wahi,HMitul Shalat, E.C. Agrawala, Mahesh Agarwal, Abhinav Agrawal, Rohan

YATINKUMAR JASUBHAI PATEL AND OTHERS v.STATE OF GUJARAT AND OTHERS

Talwar, Nikhil Goel, Ms. Naveen Goel, Dushyant Sarna, Piyo Harold,Ms. Vishakha, Vibhu Shankar Mishra, Rajan Kumar Chourasia,Gopal Jha, B.V. Balram Das, Gurmeet Singh Makker, Chirag M. Shroff,Ms. Mahima C. Shroff, Ms. Yashika Verma, Santosh Kumar - I,Ms. Dolly Rajbahaeur, Sohan Singh, Ms. Tanvi Reno, Gaurav Sharma,Dhawal Mohan, Prateek Bhatia, P. Mohan, Harsh Kaushik, HarshPrakash, Mohinder Jit Singh Rupa, Kausik Ghosh, Prang N.,A.P. Mayee, Rajarajan, Sanjeev Kumar Choudhary, Advs. for theRespondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted in the special leave petition.

2. The “Institutional Preference” for Post Graduate MedicalAdmissions is the core issue involved in these appeal/petitions.

3. Pursuant to the order passed by two Judge Bench of thisCourt dated 12.09.2018, all these appeal/petitions are placed before thelarger Bench.

4. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 22.02.2017 passed by the Division Bench of the HighCourt of Gujarat in Special Civil Application No. 19918/2016, by whichthe Division Bench has dismissed the said writ petition upholding thevires of Rules 2, 3, 4.1 and 4.3 relating to admission to the Post GraduateMedical Courses framed by the Gujarat University providing that thepreference shall be given to the candidates graduating from the GujaratUniversity (providing for “Institutional Reservation”), the original writpetitioners have preferred the special leave petition/appeal. Thus, theoriginal writ petitioners are challenging the “Institutional Preference”in the Post Graduate Medical Courses.

4.1 Writ Petition (C) No. 1479 of 2018 under Article 32 of theConstitution of India has been preferred by the petitioners alsochallenging the policy of “Institutional Preference” for admission to thePost Graduate Medical Courses insofar as respondent no.3 – Universityof Delhi and respondent no.4 – Guru Gobind Singh IndraprasthaUniversity is concerned. Similar prayers are made in Writ Petition (C)No. 122/2018 and Writ Petition(C) No. 1142/2019 also challenging the

Apolicy of “Institutional Preference” in the Post Graduate MedicalCourses.

4.2 For the sake of convenience, Civil Appeal arising from SpecialLeave Petition(C) No. 7003/2017 arising out of the impugned judgmentand order dated 22.02.2017 passed by the High Court of Gujarat isBtreated and considered as lead matter and the relevant rules of theGujarat University relating to admission to the Post Graduate MedicalCourses framed by the Gujarat University are considered.

5. In exercise of powers under Section 39 read with Section 32of the Gujarat University Act, 1949, the Gujarat University has framedCthe rules for the purpose of governing admission to Post GraduateCourses. The relevant Rules are Rules 2, 3, 4.1, 4.2 and 4.3, whichread as under:

“2.As per directive of Hon’ble Supreme Court of India, NewDelhi, 50% of total available seats in Academic year in variousDpost graduate degree and diploma courses in each subject inGovernment Institution/Colleges will be filled up as All IndiaQuota Seats as per All India 50% quota rank by competentauthority. The remaining seats will be available for the candidatespassing from Gujarat University in accordance with Rule 4.1.EThe student passing from other statutory Universities withinGujarat State will be considered as per their merit in accordancewith Rule 4.3.

3. Remaining 50% (or more) of total seats after Rule 2.0 (andRule 2.1) in post graduate courses will be filled up by theF“Admission Committee” of University.

4.0 Selection: Selection of candidates eligible under rule 1 for seatsunder rule 3.0 will be done category and status wise on the basisof merits as laid down herein further.

4.1 Preference shall be given to candidates graduating fromGGujarat University.

4.2 Deleted.

4.3 After the merit list prepared under Rule 4.1 is exhausted thecandidates graduating from any other University located inHGujarat State will be considered.”

5.1 As per the aforesaid Rules, 50% of the total available seatsin the academic year in various Post Graduate Degree and DiplomaCourses in each subject in Government Institution/Colleges will be filledup as “All India Quota Seats” by competent authority and the remainingseats will be filled up in accordance with Rule 4.1 of the Rules of theUniversity. As per Rule 3 of the Rules, remaining 50% of the totalseats in Post Graduate Courses will be filled up by the “AdmissionCommittee” of University. As per Rule 4.3 of the Rules, after meritlist prepared under rule 4.1 is exhausted, candidates graduating fromany other University located in Gujarat State will be considered.

5.2 The original writ petitioners challenged the vires of the afore-stated Rules providing “Institutional Preference” – giving preferenceto the candidates graduating from Gujarat University mainly on theground that in view of introduction of the National Eligibility EntranceTest (hereinafter referred to as ‘NEET’) and the admissions are to begiven solely on the basis of the merits and the marks obtained in theNEET, the Rules providing “Institutional Preference” shall be violativeof the Indian Medical Council Act, 1956 and the Post Graduate MedicalEducation Regulations, 2000 framed under the Indian Medical CouncilAct. That by the impugned judgment and order and after consideringthe decisions of this Court in the cases of Dr. Pradeep Jain v. Unionof India reported in 1984 (3) SCC 654; and Saurabh Chaudri v.Union of India reported in 2003 (11) SCC 146 and after consideringthe scheme of the NEET (PG), the High Court has dismissed the saidpetition holding the “Institutional Preference”. Hence, the present appealchallenging the policy of “Institutional Preference” in the Post GraduateMedical Courses.6. Learned counsel appearing for the writ petitioners havevehemently submitted that it is true that earlier – prior to the introductionof the NEET, the “Institutional Preference” in the Post GraduateMedical Courses is held to be permissible. However, in view of theintroduction of the NEET which brings about the change to the effectthat all admissions to the Post Graduate Medical Courses should beonly on the basis of merit in the NEET, as per Regulation 9 of the PostGraduate Medical Education Admission Regulations, 2000, now“Institutional Preference” would not be permissible and the same shallbe ultra vires the Medical Council Act and the Regulations, 2000 andcontrary to the scheme of the NEET.

A6.1 It is vehemently submitted by the learned counsel for the writpetitioners that the purpose due to which such “Institutional Reservation”was held permissible by this Court no longer exists as now there exists50% All India Quota and the admission is also done on the basis of anAll India Examination – NEET.B

6.2 It is further submitted by the learned counsel for the writpetitioners that even the MCI Regulations for the Post GraduateAdmissions, namely, Regulations, 2000 do not permit “InstitutionalReservation”. It is submitted that the MCI Regulations have been heldby this Court to be complete Code and therefore no reservations couldCbe provided unless the same is permitted under the regulations. Insupport of the above, reliance is placed upon the decision of this Courtin the case of State of U.P. v. Dinesh Singh Chauhan reported in(2016) 9 SCC 749.

7. So far as the Delhi University and Guru Gobind SinghDIndraprastha University are concerned, it is submitted by the learnedcounsel for the respective petitioners that under the MCI Regulations,admissions are to be done only by way of two lists, i.e., (i) 50% seatson the basis of “All India Merit List”; and (ii) 50% seats to be filled onthe basis of “State-wise List”. It is submitted that the admissions toEthe State Quota seats in the aforesaid two Universities are not beingdone on unified “State-wise List” but both the universities are preparingtwo separate “University-wise” lists which is not in accordance withthe MCI Regulations.

7.1 It is further submitted by the learned counsel for theFrespective petitioners that the two universities have provided“Institutional Reservation” to an extent of 100% of the State Quotaseats, i.e., the entire State quota has been reserved for their alumnicompletely denying opportunity of selection to other State candidates.It is submitted that the petitioners being MBBS graduates from theGState of NCT of Delhi are entitled to be considered under the Statequota seats. It is submitted that at present because of the “InstitutionalReservation”, the petitioners are not entitled to be considered under theState quota at all. It is submitted that therefore 100% “InstitutionalReservation” cannot at all be permitted even if it is otherwise held toHbe permissible.

8. It is further submitted by the learned counsel for the writpetitioners that in the case of Dr. Pradeep Jain (supra), “InstitutionalPreference” was limited to 50% of the total number of open seats. Itis submitted that the same was held to be permissible at time when100% seats in the State colleges were filled up by the State. It issubmitted that in the case of AIIMS Students’ Union v. AIIMSreported in (2002) 1 SCC 428, the “Institutional Reservation” waspermitted only to an extent of 25%. It is submitted that similarly in thecase of Dr. Saurabh Chaudhary (supra), the “InstitutionalPreference” was permitted to the extent of 50%. It is submitted thateven if this Court holds the “Institutional Preference” permissible, inthat case, the same should be limited to the 50% of the total numberof State quota seats.9. All these appeal/petitions are vehemently opposed by thelearned Advocates appearing on behalf of the respective States,respective Universities and the learned counsel appearing on behalf ofthe MCI. Learned counsel appearing on behalf of the respectiverespondents have vehemently submitted that, as such, the “InstitutionalPreference” is held to be permissible by this Court right from 1971. Itis submitted that the issue involved with respect to “InstitutionalPreference” is now not res integra in view of the decisions of this Courtin the cases of D.N. Chanchala v. State of Mysore reported in(1971) 2 SCC 293; Dr. Pradeep Jain (supra); Constitution Benchjudgment in the case of Saurabh Chaudri (supra); and GujaratUniversity v. Rajiv Gopinath Bhatt reported in (1996) 4 SCC 60.It is submitted therefore now it will not be open for the petitioners toagain re-agitate the issue with respect to “Institutional Preference”. Itis submitted that the relevant regulations prescribing “InstitutionalPreference” are absolutely in consonance with the law laid down bythis Court in the aforesaid decisions.

9.1 Learned counsel appearing on behalf of the MCI, whileopposing the present appeal/petitions, has vehemently submitted thatadmission to Post Graduate Medical Courses in the medical colleges isdone on the basis of the NEET merit and 50% seats are filled up onmerit drawn on “All India basis” and 50% seats are filled up on meritdrawn on “State-wise basis”. It is submitted that earlier the GujaratUniversity used to hold examinations for Post Graduate Medical Courses

Aand now instead of such test by the Gujarat University, merit is to bedetermined on the basis of NEET examination results. It is submittedthat the National Board of Examinations is entrusted with the job ofholding NEET test for admission to Post Graduate Medical Courses.It is submitted that as per the information bulletin issued by the NationalBBoard of Examination, 50% of the available seats are All India Quotaseats and the remaining seats are to be filled either by the StateGovernment or Colleges or Universities at the institute level usingNEET-PG score and as per the applicable regulations and/or eligibilitycriteria, reservation policy, etc. It is submitted that for the remaining50% seats, it is left open for the State Government and GovernmentCAgency to make admission in such colleges, universities and institutionsfollowing the score obtained by the students in the NEET examination.It is submitted therefore that holding of common examination cannotlead to invalidity of “Institutional Preference” as has been heldpermissible by this Court in catena of decisions. It is further submittedDthat after uniform entrance examination through NEET, provisions ofSection 10D does not debar source from which admissions are to bemade at the post graduate level.

9.2 Making the above submissions, it is prayed to dismiss thepresent appeal/writ petitions.E

10. The short question which is posed for consideration of thisCourt is, whether after the introduction of the NEET Scheme, still the“Institutional Preference” in the Post Graduate Medical Courses wouldbe permissible?F

10.1 At the outset, it is required to be noted that, as such, and itis not in dispute that such “Institutional Preference” in the PostGraduate Medical Courses is held to be permissible by this Court incatena of decisions, more particularly three Judge bench decision ofthis Court in the case of Dr. Pradeep Jain (supra); ConstitutionGBench decision of this Court in the case of Saurabh Chaudri (supra);and in the case of Saurabh Dwivedi v. Union of India reported in(2017) 7 SCC 626.

10.2 In the case of Dr. Pradeep Jain (supra), it is observedHand held by this Court as under:

“We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD and the like are concerned,it would be eminently desirable not to provide for any reservationbased on residence requirement within the State or on institutionalpreference. But having regard to broader considerations ofequality of opportunity and institutional continuity in educationwhich has its own importance and value, we would direct thatthough residence requirement within the State shall not be aground for reservation in admissions to post-graduate courses, acertain percentage of seats may in the present circumstances,be reserved on the basis of institutional preference in the sensethat student who has passed MBBS course from medicalcollege or university, may be given preference for admission tothe post-graduate course in the same medical college oruniversity but such reservation on the basis of institutionalpreference should not in any event exceed 50 per cent of thetotal number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will alsobe subject to revision on the lower side by the Indian MedicalCouncil in the same manner as directed by us in the case ofadmissions to the MBBS course. But, even in regard toadmissions to the post-graduate course, we would direct that sofar as super specialities such as neuro-surgery and cardiologyare concerned, there should be no reservation at all even on thebasis of institutional preference and admissions should be grantedpurely on merit on all-India basis.”

[emphasis supplied]

10.3 Thereafter, five Judge Bench of this Court in the case ofSaurabh Chaudri (supra) has reiterated the scheme of “InstitutionalPreference” as framed in Dr. Pradeep Jain (supra) and has approvedthe “Institutional Preference” confined to 50% of the total number ofopen seats. In that decision, this Court also took note of the subsequentdecision in the case of Dinesh Kumar (Dr.) (II) v. Motilal NehruMedical College, reported in (1986) 3 SCC 727 fixing the“Institutional Preference” to the extent of 25%. However, after takingnote of the said decision, this Court has reiterated the scheme framedin Dr. Pradeep Jain (supra) providing “Institutional Preference”

ABC

Aconfined to 50% of the total number of open seats. In the case ofSaurabh Dwivedi (supra), this Court has again approved the“Institutional Preference”. Thus, right from 1971 onwards till 2017,consistently this Court has approved and/or permitted the “InstitutionalPreference” in the Post Graduate Medical Courses.

BHowever, it is the case on behalf of the petitioners that in viewof the introduction of the NEET Scheme and in view of Section 10Dof the MCI Act, by which admissions are to be given on the basis ofthe merit in the NEET, such an “Institutional Preference” would notbe permissible. It is required to be noted that introduction of the NEETChas, as such, nothing to do with any preference/Institutional Preference,more particularly the “Institutional Preference” as approved by this Courttime and again. The purpose and object of the introduction of the NEETwas to conduct uniform entrance examination for all medicaleducational institutions at the under-graduate level or post-graduate levelDand admissions at the under-graduate level and post-graduate level areto be given solely on the basis of the merits and/or marks obtained inthe NEET examination only. It is required to be noted that earlier therespective universities including the Gujarat University used to holdexamination for post-graduate admission to medical courses and nowinstead of such tests by the Gujarat University/concerned universities,Emerit is to be determined on the basis of the NEET examination resultsonly and admissions are required to be given on the basis of such meritsor marks obtained in NEET. The only obligation by virtue ofintroduction of NEET is that, once centralized admission test isconducted, the State, its agencies, universities and institutions cannotFhold any separate test for the purpose of admission to Post-Graduateand PG and Diploma Courses and such seats are to be filled up by theState agencies, universities/institutions for preparing merit list as per thescore obtained by the applicants in NEET examination and thereforeby introduction of the NEET, Section 10D of the MCI, Act has beenGamended, consequently amendment to the Post-Graduate EducationRegulations, 2000, admission to Post Graduate Courses are madeproviding for solely on the basis of the score secured by the candidatesseeking admission based on centralized examination, i.e., NEET.

10.4 Even while giving admissions in the State quota/institutionalHreservation quota, still the admissions are required to be given on the

basis of the merits determined on the basis of the NEET examinationresults. Under the circumstances, introduction of the NEET Scheme,as such, has nothing to do with the “Institutional Preference”.Therefore, the change by introduction of the NEET Scheme shall notaffect the Institutional Preference/Reservation as approved by thisCourt from time to time in catena of decisions, more particularly thedecisions referred to hereinabove. Under the guise of introduction ofthe NEET Scheme, the petitioners cannot be permitted to re-agitateand/or re-open the issue with respect to Institutional Preference whichhas been approved and settled by this Court in catena of decisions, moreparticularly the decisions referred to hereinabove.11. Now so far as the submission on behalf of the petitionersthat if the 50% seats are reserved for State quota and if institutionalpreference/reservation is permitted to the extent of 50% of the totalnumber of open seats, in that case, not single seat in the State quotashall be available and therefore the percentage of InstitutionalPreference may be reduced to the extent of 25% or so is concerned,at the outset, it is required to be noted that as such the InstitutionalPreference to the extent of 50% of the total number of open seats hasbeen approved by this Court in catena of decisions, more particularlythe decisions referred to hereinabove. The decision of this Court inthe case of Dinesh Kumar (Dr. )(II) (supra) permitting 25%Institutional Preference has been distinguished by Constitution Benchof this Court in the case of Saurabh Chaudri(supra). Therefore, oncethe Institutional Preference to the extent of 50% of the total numberof open seats has held to be permissible, in that case, thereafter it willbe for the appropriate authority/State to consider how much percentageseats are to be reserved for Institutional Preference/Reservation. It willbe in the realm of policy decision and this Court cannot substitutethe same, unless it is held to be arbitrary and/or mala fide and/or notpermissible. As observed hereinabove, five Judge Bench of this Courtin the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the postgraduate medical courses to the extent of 50% of the total number ofopen seats.

12. Therefore, for the reasons stated above and considering thedecisions of this Court in the cases of Dr. Pradeep Jain (supra);

AConstitution Bench decision of this Court in the case of SaurabhChaudri (supra); and Saurabh Dwivedi (supra), InstitutionalPreference to the extent of 50% is approved and it is observed andheld that introduction of the NEET Scheme shall not affect suchInstitutional Preference/Reservation. Such regulation providing 50%BInstitutional Preference/Reservation shall not be in any way ultra viresto Section 10D of the MCI Act. Even otherwise, as observedhereinabove, even in the case of Institutional Preference/Reservation,the admissions in the post graduate courses are to be given on the basisof the merits and marks obtained in the NEET examination result only.

CIn view of the above and for the reasons stated above, all theseappeal/writ petitions deserve to be dismissed and are accordinglydismissed. No costs.

Kalpana K. Tripathy

Matters dismissed.