Bombay High Court
Yash Kumar Waghmare vs The State Maharashtra And Others on 23 December, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
(1) wp-12210-2021.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12210 OF 2021
Yash S/o Kumar Waghmare
Age: 19 Yers, Occ.: Student
R/o C/o Kumar Waghmare,
Rohidas Nagar, Udgir, 413517. ..Petitioner
Versus
1. The State of Maharashtra through
The Secretary, Medical Education & Drugs Dept.
Mantralaya, Mumbai 400 032.
2. The Director of Medical Education
and Research, St. George's Hospital Compound,
Near CSMT, Mumbai, 400 001.
3. The Competent Authority & Commissioner,
CET CELL (DMER),
St. Georges Hospital Compound,
Near CSMT, Mumbai 400 001. ..Respondents
...
Mrs. Kalpalata Patil Bharaswadkar, Advocate for
Petitioner.
Mr. S. G. Karlekar, A.G.P. for Respondent Nos.1 and
2.
M. D. Narwadkar, Advocate for Respondent No.3.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
Closed for Orders on : 04.12.2021.
Order Pronounced on : 23.12.2021.
FINAL ORDER (Per S. V. Gangapurwala, J.) :-
1. The petitioner seeks directions against
respondent nos.2 and 3 to accept the application
form of the petitioner for admission to the Health
Science Course for the Academic Year 2021-22 from
the State quota (85%) medical admission without
(2) wp-12210-2021.
insisting for the SSC examination certificate from
the institution situated in the State of
Maharashtra.
2. After matter was heard for sometime, the
learned counsel for the petitioner sought leave to
amend the writ petition and subsequently, by way of
an amendment assailed Rule (1) (A) (viii) of the
Maharashtra Unaided Private Professional
Educational Institutions (Regulation of Admission
to the Full Time Professional Undergraduate Medical
and Dental Courses) Rules, 2016 added by Amendment
Rules 2019 (hereinafter referred to as 'Rules,
2019'). Under the said Rules, 2019 the student who
desires to take benefit of the State quota has to
pass 10th and 12th standard examination from the
institution situated in the State of Maharashtra.
3. The petitioner herein claims to posses
domicile of the State of Maharashtra. The
petitioner completed 1st to 7th standard education
from the school at Talegaon, Taluka Ahmedpur
District Latur. The petitioner passed his 10 th
standard examination in the year 2018 from the
school at Bidar. The petitioner passed his 12th
standard examination from the Junior College at
Dapka, Taluka Mukhed, District Nanded. The
petitioner appeared for NEET examination. The form
of the petitioner from the State quota is not
accepted for the year 2020 on the ground that, the
petitioner has passed 10th standard from the
institution situated outside the State of
(3) wp-12210-2021.
Maharashtra. Subsequently, the petitioner
reappeared for NEET examination in the year 2021
and now again seek admission from the State quota.
4. Mrs. Patil Bharswadkar, learned counsel
for the petitioner submits that, forefathers of the
petitioner since time immemorial are domiciled in
the State of Maharashtra. The petitioner is born
and is domiciled in the State of Maharashtra. The
petitioner had to take admission in the 9 th standard
at the Bidar (Karnataka State) in the year 2016 due
to domestic issues. He completed his 10th standard
in the year 2018 from the school at Bidar and took
admission for 11th standard in the State of
Maharashtra and has completed 11th and 12th standard
from the State of Maharashtra. The learned counsel
further submits that, Rule dis-entitling a domicile
of State of Maharashtra who has passed 10 th standard
from an institution situated outside State of
Maharashtra is irrational, illegal and does not
stand to reason. The said Rule discriminates with
the students who have passed 10th standard from an
institution situated outside the State of
Maharashtra. The said Rule needs to be read down
to mean that, Maharashtra State students who have
domicile certificate of State of Maharashtra and
passed HSC qualifying examination from the State of
Maharashtra, but passed 10th standard from outside
the State of Maharashtra are eligible and entitled
to claim seats under 85% State Quota for Health
Science Course.
(4) wp-12210-2021.
5. The learned counsel relies upon the
judgment of the Division Bench of this Court in a
case of Rajiv Purshottam Wadhwa vs State Of
Maharashtra and Others reported in (2001) 1 AllMR
824.
6. The learned counsel further submits that,
the student domiciled of State of Maharashtra and
passing SSC from an institution situated outside
State of Maharashtra upto 2017 are eligible to
apply from State quota. The cut off year of 2017
is arbitrary, oppressive, discriminatory and does
not have nexus to the object sought to be achieved.
In view of that also the impugned Rules deserve to
be struck down, quashed and set aside. The learned
counsel relying upon the judgment of the Apex Court
in a case of Meghavi Vs. State of Maharashtra and
Anr. in Special Leave Appeal No.13621/2020 dated
01.12.2020 submits that, the father of the
petitioner therein was a contractor and by virtue
of business in the State of Madhya Pradesh, she had
to shift from her native town Bhusawal in
Maharashtra to prosecute 10th standard in the other
State and thereafter, she came back to the State of
Maharashtra and completed 11th and 12th standard from
an institution situated in the State of
Maharashtra. The Apex Court in the said case
directed the State of Maharashtra to consider the
petitioner therein for admission to the
undergraduate medical courses from the State quota.
The learned counsel submits that, the petitioner is
similarly situated.
(5) wp-12210-2021.
7. The learned counsel further relies upon
the judgment of the Division Bench of this Court
dated December 17, 2020 in Writ Petition (ST.)
No.96105 of 2020 in a case of Ms. Vinita Umesh
Singh Vs. The Administrator, Dadra & Nagar Haveli,
Daman & Diu to contend that, under the Rules for
admission in the first priority category a
candidate was required to pass 8th to 12th standard
from recognized school in the Union Territory of
Dadra and Nagar Haveli, Daman and Diu. The
petitioner therein had passed 9th to 12th standard
from recognized school of Union Territory of Dadra
and Nagar Haveli, Daman and Diu, but had not passed
8th standard from the school situated in the Union
Territory. The Division Bench directed, her
application to be considered from the first
preference and held that asking the student to pass
8th to 12th standard from the institution situated in
the Union Territory of Dadra and Nagar Haveli,
Daman and Diu is arbitrary and irrational and
relevant consideration is passing 12th standard
examination.
8. Mr. Narwadkar, learned counsel for
respondent no.3 submits that, the Rule providing
passing of 10th and 12th standard from an institution
situated in the State of Maharashtra to avail the
benefit of 85% State quota is reasonable and
rational. The learned counsel relying upon the
judgment of the Apex Court in a case of Rajdeep
Ghosh Vs. State of Assam and Others reported in
(6) wp-12210-2021.
2018 (17) SCC 524 submits that, similar Rule was
subject matter of consideration before the Apex
Court. In the said case, Rule 3(1)(c) of the
Medical Colleges and Dental Colleges of Assam
(Regulations of Admission into 1st year MBBS/BDS
Courses) Rules, 2017 (heareinafter referred to as
'Rules, 2017') was subject matter of challenge.
Under the said Rule six years schooling from class
8th to 12th standard in the State of Assam was the
requirement and that a person should be residing in
the State of Assam for a period of 20 years to
avail the benefit of State quota seats. Exception
was carved out to the students viz. son and
daughter of the officers of All Indian Services
allotted to the State of Assam. The Apex Court in
the said case negatived the challenge to the Rule
3(1)(c) of Rules, 2017 and held that, the said Rule
is in consonance with the spirit of Article 14 of
the Constitution of India.
9. The learned counsel also relies on the
judgment of the Division Bench of this Court in a
case of Yellamalli Venkatapriyanka and Others Vs.
State of Maharashtra and Others reported in 2018
(6) AIR Bom. R. 323 and submits that, similar Rule
was assailed and the Division Bench of this Court
considered the judgment of the earlier Division
Bench in a case of Rajiv Purshottam Wadhwa vs State
Of Maharashtra and Ors. (supra) relied by the
petitioner and held that, Rule thereby
contemplating 10th and 12th standard to be cleared
from an institution situated in the State of
(7) wp-12210-2021.
Maharashtra to avail the benefit of State quota is
reasonable and has definite nexus with the object
sought to be achieved.
10. The learned counsel further submits that,
last year also the said Rule was applied. It is
not that for the present year only the Rule has
been brought into effect. For all these years the
same Rule was in force. The learned counsel also
relies upon the judgment of the Division Bench of
this Court in a case of Nibir Jyoti Das Vs. State
of Maharashtra and Others reported in 2021 (5)
Mh.L.J. 681 and submits that, the same Rule was a
subject matter of consideration. According to the
learned counsel the impugned Rule does not violate
the fundamental right. The restriction is
reasonable.
11. We have considered the submissions
canvassed by the learned counsel for respective
parties.
12. Before dilating on the submission
canvassed by the learned counsel for parties, it
would be fruitful to refer to the relevant Rule
viz. subject matter of challenge in the present
case.
5. Candidature Type:
(1) Maharashtra State Candidature-
Type Eligibility Criteria
(1) (2)
(A) (i) The candidate must be an Indian National.
(ii) Except for the year 2016 Persons of Indian
(8) wp-12210-2021.
Origin (PIO) or Overseas citizen of India
(OCI), Non Resident Indian (NRI) shall not be
eligible.
(iii) Except for the year 2016, the candidate should
be Domicile of Maharashtra.
(iv) The candidate must have completed 17 years of
age on or before 31st December of the year of
admission to the course. However, for
admission to Ayurved and Unani courses, the
candidate must have completed 17 years of age
on or before 1st October of the year of
admission to the course. The Birth
certificate indicating name of the candidate,
Secondary School Certificate examination i.e.
SSC or equivalent examination certificate or
School Leaving Certificate endorsing the date
of birth may constitute a valid proof. (Age
eligibility as may be as prescribed by
respective Central Council, from time to
time.)
(v) The candidate must be medically fit.
(vi) The candidate must have passed the SSC or
equivalent examination from an Institution
situated in the State of Maharashtra.
However, except for the year 2016, candidate
who has passed SSC or equivalent examination
from an institute situated outside Maharashtra
State and HSC or equivalent examination from
an institute situated within Maharashtra State
is eligible for seeking admission to the
courses, provided that he or she is domicile
of Maharashtra.
(vii) The candidate must have passed the qualifying
examination.
(viii) Notwithstanding anything contained in sub-
entries (ii), (v), (vi) and (vii), a candidate
who has passed SSC or equivalent examination
in 2017 or prior to that, from an institute
outside the State of Maharashtra is also
eligible to seek admission on this criteria,
provided he has passed HSC or qualifying
examination from an institute in the State of
Maharashtra and also possess Domicile
Certificate issued by the authority, who is
competent to issue such certificate in the
State of Maharashtra for educational purpose.
13. The admission to the private unaided
professional educational institution in the State
of Maharashtra is governed by the Maharashtra
(9) wp-12210-2021.
Unaided Private Professional Educational
Institution (Regulation of Admission and Fees) Act,
2015 and Maharashtra Unaided Private Professional
Educational Institutions (Regulation of
Administrator to the Full Time Professional
Undergraduate Medical and Dental Course) Rules,
2016. In Rule 5 of the said Rules, 2016 amendment
is made in sub-rule (1) in entry (A), after sub-
entry (vii) of Rule 5 as under:
(viii) notwithstanding anything contained in
sub-entries (ii), (v), (vi) and (vii), a
candidate who has passed SSC or equivalent
examination in 2017 or prior to that, from an
institute outside the State of Maharashtra is
also eligible to seek admission on this
criteria, provided he has passed HSC or
qualifying examination from an institute in the
State of Maharashtra and also possess Domicile
Certificate issued by the authority, who is
competent to issue such certificate in the
State of Maharashtra for educational purpose.
14. Rules, 2016 are brought into effect since
August 2016. It prescribed the eligibility
criteria for admission to the undergraduate Medical
courses affiliated to the Maharashtra Universities
of Health Sciences. Initially, for the Academic
Year 2016 domicile was not a relevant criteria. If
candidate who has passed SSC or equivalent
examination from an institute situated outside
Maharashtra State and HSC or equivalent examination
from an institute situated within Maharashtra State
is eligible for seeking admission to the courses,
provided that he or she is Domicile of Maharashtra.
(10) wp-12210-2021.
15. For the Academic Year 2017, twin
requirements were mandatory i.e. (i) a student
cleared 10th and 12th standard from an institution
within the State of Maharashtra and (ii) he should
be domiciled of the State of Maharashtra. For the
Academic Year 2016-17 the relaxation was provided
that is if a student had cleared 10th standard from
an institution outside the State of Maharashtra and
cleared 12th standard from an institution situated
within the State of Maharashtra, he would be
eligible for admission in the State quota, provided
he is domiciled in the Maharashtra. Subsequently,
these Rules are again amended in the year 2019,
wherein those students who had cleared 10 th standard
prior to 2017 from an institution outside the State
of Maharashtra, but who has cleared 12th standard
within the State of Maharashtra and is also
domicile of Maharashtra was eligible for admission
from the State quota.
16. The Rule applicable since 2018 and
followed consistently is that (i) the student
should pass 10th and 12th standard from an
institution situated within the State of
Maharashtra and (ii) must be domicile of State of
Maharashtra. Exception is if he has cleared 10th
standard prior to the year 2017 from an institution
outside the State of Maharashtra, he would still be
eligible, provided he has passed 12th standard
examination from an institution situated within the
State of Maharashtra and he is also domicile of the
Maharashtra.
(11) wp-12210-2021.
17. The requirement for claiming benefit of
State quota as appearing herein was subject matter
of consideration before the Apex Court in a case of
Yellamalli Venkatapriyanka and Others Vs. State of
Maharashtra and Others (supra). In the said
judgment, the Division Bench also referred to the
judgment of the coordinate Division Bench of this
Court delivered in a case of Rajiv Purshottam
Wadhwa vs State Of Maharashtra and Ors. (supra) and
had observed that, Division Bench in a case of
Rajiv Purshottam Wadhwa (supra) was not considering
the Rule 4.5 of the said Rule. It was further
observed that, after Rajiv Wadhwa (supra) judgment
there has been a complete change in the Rules and
each of the Rules after Wadhwa's case have been
prescribing the eligibility criteria on both
counts, namely, residential / domicile and
obtaining educational qualifications, in both 10th
and 12th standard examinations, cleared from within
the State of Maharashtra. It also observed as
under:
77. Thus, there is Entry A in the earlier
Rule which is substituted by Entry A with its
sub-clauses and when it makes a substitution in
sub-clause (vii) what it says is notwithstanding
anything contained in clause 1 to 5 and 6 for
academic year 2016- 17, the candidates complying
with the following eligibility conditions shall
also be eligible to seek admission for this
category. Clause B which has been referred by
the Division Bench is without noticing its non
obstante clause at all. With its sweep had the
clause been noticed or the attention of the
Division Bench been invited to it, possibly it
would not have rendered a conclusion even at the
(12) wp-12210-2021.
interlocutory stage as has been rendered and
relied upon. Thus, the order of the Division
Bench, without noticing a statutory prescription
in its entirety, can safely be termed as per
curiam and not binding on us. It could not have
also been held to be binding on the State and
the respondents before us even though acting in
furtherance thereof, they may have granted
admissions to some students It is only for the
academic year 2016-17 that the non obstante
clause enables the candidates to comply with the
eligibility condition in sub-clauses (a) and (b)
of clause 7 of Entry A that the relaxation or
exemption would apply. It can have no
application to the admissions for the academic
year 2018-19 when there is a set of Rules as
noticed by us hereinabove and firmly in place.
It is in these circumstances that the concession
of the learned Assistant Government Pleader
given or made before the Nagpur Bench of this
Court would not bind the State at all. That is a
concession on law. No amount of concession and
on a question of law can bind the State
Government. It is well settled that in matters
of constitutional provisions or interpreting of
a law or legal provision, it is only the stand
of the Advocate General which would ordinarily
bind the State. No other counsel, much less, an
Assistant Government Pleader can make any
statement of this nature which would bind the
State.
18. In the said judgment, the coordinate Bench
of this Court held that, challenge to the impugned
Rules on the ground that they violate the mandate
of Article 14 can safely be negatived by holding
that the classification is made on a reasonable
basis and has a definite nexus with the object
sought to be achieved.
19. In a case of Rajdeep Ghosh Vs. State of
Assam and Others (supra) the challenge was to Rule
(13) wp-12210-2021.
3(1)(c) of the Medical Colleges and Dental Colleges
of Assam (Regulations of Admission into 1st year
MBBS/BDS Courses) Rules, 2017. The said Rule 3(1)
(c) prescribed following condition:
1.(a) The candidate must be a citizen of
India.
(b) The candidate must be a permanent
citizen of Assam. The father/mother or the
candidate must be residing in the State of
Assam continuously for not less than a period
of 20 years. (The certificate at Annexure -
I in Application Form at Schedule - I of
these rules must be submitted if a candidate
is called for counseling):
Provided that this shall not be applicable to
the sons/daughters of officers of All India
Services allotted to Assam (certificate
regarding the service of father/mother of the
candidate from the concerned
authority/department of Government of Assam
must be submitted if a candidate is called
for counseling.
(c) The candidate must study in all the
classes from class VII to XII in the State of
Assam and must pass the Qualifying
Examination or its equivalent examination
from any Institute situated in the State of
Assam. (Certificate at Annexure-II in
Application Form at Schedule - I of these
rules must be submitted if a candidate is
called for counseling.)
Provided that if a candidate studies outside
Assam from Class - VII onwards because
his/her father/mother is posted outside Assam
as a Assam State Government Employee or as a
Central Government Employee or as an employee
of a Corporation/Agency/Instrumentality under
Government of Assam or Central Government
whether on deputation or transfer or regular
posting then the period for which the said
father/mother is working outside the State
shall be relaxable for such candidate.
(Certificate of employment of father/mother
(14) wp-12210-2021.
outside the State indicating the period of
service from the concerned authority must be
submitted if a candidate is called for
counseling.)
(d) Candidate's age should not be below 17
years and above 25 years of age on 31 st
December of the year in which the admission
is sought for;
Provided that the maximum age limit is
relaxable by 3 years in case of candidates
belonging to SC/ST(P)/ST(H)/OBC/MOBC
category.?
20. The Apex Court in the said case considered
whether the classification made in the Rule 3(1)(c)
to Rules of 2017 is unreasonable and violative of
provisions contained in Article 14 of the
Constitution of India. The Apex Court upheld the
said Rules and observed that, said Rule is in
consonance with the spirit of Article 14 of the
Constitution of India. It also observed that, it
is permissible to lay down the essential
educational requirements, residential/domicile in a
particular State in respect of basic courses of
MBBS/BDS/Ayurvedic.
21. In the present case, Rule in question lay
down the requirements of obtaining education in the
State and relaxation has been given to the children
of the employee of the Government of Maharashtra or
its undertaking who have joined services since
beginning at a place situated outside the State of
Maharashtra, but who have been transferred to a
place situated within the State of Maharashtra
shall be eligible for admission, even though such
(15) wp-12210-2021.
children might have passed HSC or SSC or equivalent
examination from the recognized institution
situated outside the State of Maharashtra. The
relaxation is also provided to the children of the
employee of the Government of Maharashtra or its
undertaking who have been posted or transferred or
deputed to the place situated outside the
Maharashtra. Exception granted to these employees
would be reasonable.
22. The policy is formulated by the experts in
the educational field. This Court would normally
not interfere with the educational policy framed by
the experts, unless it is shown that, the policy is
manifestly unjust, irrational or arbitrary.
23. The Rules do not appear to be arbitrary or
unreasonable. Such Rules have also undergone
scrutiny of the Apex Court in the case of Rajdeep
Ghosh Vs. State of Assam and Others (supra) and the
Division Bench of this Court in a case of
Yellamalli Venkatapriyanka and Others Vs. State of
Maharashtra and Others (supra). The similar rules
are held to be violating these judgments.
24. In light of the above, writ petition is
dismissed. No costs.
(R. N. LADDHA) (S. V. GANGAPURWALA)
JUDGE JUDGE
Devendra/December-21
