Smit Rajput & Anr vs Guru Gobind Singh Indraprastha ...
2013 Latest Caselaw 3243 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on   : 24.07.2013
                               Judgment pronounced on : 29.07.2013

+      W.P.(C) 3952/2013

       SMIT RAJPUT & ANR                                 ..... Petitioners
                     Through:         Mr. Manoj Goel, Mr. Shuvodeeep
                                      Roy and Mr. Gopal Verma, Advs.
                    versus
       GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY &
       ORS.
                                                   ..... Respondents
                    Through: Mr.Mukul Talwar with
                    Mr.Sradhananda Mohapatra, Advocate for
                    GGSIPU.
                    Mr.S.D.Salwan, Advocate for the respondent
                    nos. 7 to 16
                    Mr.Mohinder J.S.Rupal, Advocate for
                    respondent/University of Delhi
                    Mr. Rajeeve Mehra, ASG with Mr.Roshan Lal
                    Goel, Advocate for respondent No.4/UOI
                    Dr.Rakesh Gosain, Advocate for respondent
                    No.6.
                    Ms. Sana Ansari for Ms. Zubeda Begum,
                    Advocate for resp. No. 2
                    Mr. Ashish Kumar, Adv. for MCI

       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

1. Prior to the current academic year, the admissions to various Post

Graduate courses were being made by, drawing students from two

different sources, on the basis of two different entrance examinations, one

being the All India Post Graduate Medical Entrance Examination in

which all the medical graduates from the country were eligible to appear

and the other being the medical examination conducted by the respective

State where only the students who passed out from the medical colleges

within that State were eligible to appear. In terms of Post Graduate

Medical Education (Amendment) Regulations, 2010 (Part-II) and the Post

Graduate Medical Education (Amendment) Regulations, 2012 (Part-I),

framed by respondent No. 5-Medical Council of India, a common all

India examination called National Eligible-cum-Entrance Test for Post

Graduate Courses (NEET-PG), 2012, was conducted by respondent No.

6-National Board of Examinations. The seats in PG Courses are equally

divided into two quotas, one known as All India Quota and the other as

State Quota. Declaring results for the said examination, respondent No. 6

notified two lists, one for admission under the All India Quota and the

other for admission under the State Quota. Admissions against All India

Quota can be made only from amongst the candidates whose names

appear in the all India merit list, whereas admission against the seats

under the State Quota can be made only from amongst candidates whose

names appear in the State list of the concerned State. Thus, the admission

against State Quota in Delhi can be made only from amongst the

candidates whose names appear in the list notified by respondent No. 6

for Delhi. This list contains names of those candidates who passed their

MBBS examination from a University/Institute in Delhi.

2. The medical colleges in Delhi, except All India Institute of Medical

Sciences, are affiliated to two Universities, i.e., respondent No. 3-

University of Delhi and respondent No. 1 Guru Gobind Singh

Indraprastha University (hereinafter referred to as "I.P. University")

3. Clause 4.1.1 of the Bulletin of Information, issued by University of

Delhi for admission to the Post Graduate (Degree/Diploma and MDS

courses), stipulates that a candidate must have passed final MBBS

examination (for MD/MS/Diploma Courses) and BDS examination for

MDS courses from University of Delhi. Thus, the students, who passed

final MBBS or BDS examination, as the case may be from I.P.

University, are not eligible for admission to the Post Graduate Medical

Courses in Delhi University. Similarly, the Admission Brochure, issued

by respondent I.P. University, stipulates that only medical graduates of

I.P. University are eligible for admission to the Post Graduate Medical

Courses.

4. The petitioners before this Court, who passed out MBBS from

Delhi University, are aggrieved by their exclusion from the admission to

be made by the respondent I.P. University in the State Quota. Based upon

the lists of candidates, who qualified in NEET-PG, 2013, Delhi

University as well as I.P. University has drawn their own respective lists

of the candidates, who are eligible to take admission in their respective

Post Graduate Medical courses. The contention of the petitioners before

this Court is that their exclusion by the respondent-I.P. University from

the list of candidates eligible for admission in the said University under

the State quota is unconstitutional, being violative of Article 14 of the

Constitution since it defeats the principle of meritocracy and excludes

persons who are similarly situated and have passed MBBS from the same

State, i.e., Delhi. In fact, the petitioners claim to be more meritorious than

many candidates whose names appear in the list of eligible candidates,

issued for admission in the PG medical courses of I.P. University. This

claim is made on the basis of their comparative rank in the merit list,

issued by respondent No. 6-National Board of Examinations. This is also

the case of the petitioners that in none of the other States this kind of

reservation exists and no distinction by the State is made on the basis of

the University from which the candidate passes his MBBS, provided the

University from which he passed MBBS is situated in the same State.

Yet another contention of the petitioners is that though there are only 88

candidates, who passed MBBS from I.P. University, have qualified for

admission to PG seats in the said University, on the basis of their NEET-

PG, 2013 score, the number of post graduate seats being 122, I.P.

University would have to surrender at least 34 seats from State quota for

inclusion in the all India Quota.

5. This is also the contention of the petitioners that institutional

preference/reservation in Post Graduate medical courses can be justified

only on considerations of geographical heterogeneity when there is a

marked perceivable disparity between regions, but when there is a

homogeneity within the State, there can be no further classification on the

basis of region or institution, since equals cannot be treated as unequals.

According to them, the philosophy between having a State Quota being to

promote local tenant to serve the health care need of the State, there can

be no further discrimination amongst the medical graduates from the

same State, which has no regional disparity. Yet another contention of

the petitioners is that there cannot be reservation to the extent of 100% of

the seats under the State Quota, for the candidates of the same institution.

6. The writ petition has been contested primarily by respondent No.1-

Guru Gobind Singh Indraprastha University, respondent No. 2-

Government of NCT of Delhi, respondent No. 3-University of Delhi,

respondent No. 4-The Union of India and private respondents No. 7 to

16., who are MBBS from I.P. University.

7. Respondent No. 6-National Board of Examinations in its counter-

affidavit stated that it has prepared all India rank list, all India 50% quota

list as well as State list, for a particular State NEET-PG Regulations 2010

permits common merit list for the entire State known as State list and

once such lists are prepared then the counseling has to be done by the

concerned State or its agency and no institutional counseling for the State

medical colleges is permitted. It is also claimed that any deviation from

NEET-PG Regulations, 2010 by any Institute is illegal being violative of

the said regulations.

8. In its short reply, respondent No.1-I.P. University has taken a

preliminary objection that the brochure, which states that only those who

completed their MBBS from I.P. University would be eligible to apply

for admission to the PG course in the said University, came out sometime

in March-2013, the writ petition was filed only in June, 2013, so the

petitioners cannot be permitted to file the writ petition at this late stage.

On merits, it is alleged that the interpretation being placed by the

petitioners is contrary to various decision of Supreme Court, including its

decision in Dr. Saurabh Chaudhary vs. Union of India (2003) 11 SCC

146, where the Apex Court clearly upheld preference by an Institute to its

own graduates for the purpose of admission to the Post Graduate medical

courses.

9. In its counter-affidavit, the respondent University of Delhi has

justified the institutional preference in the light of the decision of

Supreme Court in Pradeep Jain and others vs. Union of India and

others (supra). It is also alleged that the academic session has already

started in Delhi University from 25.06.2013 and the second round of

counseling is scheduled to be held on 27.07.2013 and 30.07.2013. The

private contesting respondents, in their additional affidavit dated

24.07.2013, have stated that under Section 4 of Delhi University Act, the

said University is within its right to hold examination of students for PG

Courses, only for those who have pursued a course of study in the said

University and similarly under Section 5(25) of Indraprastha

Vishvavidhyalaya Act, I.P. University has power to adopt any process of

examination and also decide upon the method of selection. This is also

their case that institutional preference is also adhered to in the BHU,

Gujarat and Saurashtra.

10. In their additional affidavit, the petitioners have stated that in the

States of Uttar Pradesh, Karnataka, Haryana, Assam, Kerala, Punjab,

Tamil Nadu and Jammu & Kashmir, all the medical graduates passing

from the medical institutes in these States are eligible for admission

against all post graduate seats of those States under the State Quota. The

same, according to them, is the position in Madhya Pradesh, Bihar, Orissa

and Gujarat University. As regards Aligarh Muslim University (AMU)

and Banaras Hindu University in Uttar Pradesh, it is stated that the said

universities have no reservations in Uttar Pradesh institutions of MBBS

level though Delhi University reserves 81% of seats for MBBS level for

the students who have passed their class XII from Delhi. As against this,

the Inderprastha University reserves only 51% of seats of MBBS level for

Delhi students.

11. As regards, the contention of the respondents that the petitioners

did not approach this Court immediately after the procedure for the

academic year 2013-2014 was issued, the petitioners have stated that they

had filed W.P(C) No.352/2013 before the Supreme Court on 4.6.2013 and

vide order dated 7.6.2013, they were granted liberty to approach this

Court, pursuant to which they preferred the present writ petition on

10.6.2013.

12. The following is the comparison of the relative merit of the

candidates qualified from I.P. University and Delhi University in NEET,

PG, 2013:-

All     India          Rank No. of GGSIPU          No.      of      Delhi
(Range)                     Graduates              University graduates

























Total up to 10000 in 17 (OBC-2 and SC-1)           234 (OBC-11         and
All India Rank                                     SC/ST-9)






Total               88 (including OBC-22, 608
                    SC+ST-10) 10
Total Post Graduate Tentative          122 264 (including                  31
Seats               (including 1 Diploma) Diploma)

13. In Minor P. Rajendran versus State of Madras and others [(1968)

2 SCR 786], the Apex Court, struck down the District-wise allocation of

seats in Madras, in the ratio of population of each district to the

population of the State, since such classification had no nexus with the

object of selecting the best talent. In Minor A. Peeriakaruppan versus

State of Tamil Nadu and others [1971 (1) SCC 38] declared

unconstitutional, the unit-wise scheme under which the medical colleges

in the city of Madras were constituted as one unit and each of the other

medical colleges in Mufassil was constituted as a unit.

14. In D.N. Chanchala versus The State of Mysore and others

[1971(2) SCC 293], three medical colleges in Karnataka, set up in three

different places, held common examination, State Government framed

rules called Mysore Medical Colleges (Selection for Admission) Rules,

1970, which provided for the university-wise distribution of general pool

seats whereby candidates passing from a particular university could be

considered for admission in the MBBS course of that university alone.

However, the proviso stipulated that upto 20% seats in each university

could be filled by the candidates from other universities, in the discretion

of the Selection Committee. Noticing that the three concerned universities

had been established to cater to the needs of their respective areas, the

Court found nothing undesirable in ensuring that the candidates attached

to a particular university was to pursue higher education in a specialized

subject only in the said university. The Court was of the view that the

Rules did not make it impossible for the meritorious students to get

admission since 20% of the seats were provided for the students from

other universities. The Court was also of the view that the Government

which provides funds for functioning of an institute has a right to decide

the source from where admission could be made set up in three different

places. The Court was of the view that since the university had been set

up for satisfying the educational needs of different areas where they were

set up and medical colleges were established in those areas, it could be

safely presumed that they were also set up to satisfy the need for medical

training of those areas attached to those universities.

15. In Dr. Pradeep Jain and others versus Union of India and others

and other connected matters, [(1984) 3 SCC 654], the constitutional

validity of residential requirements and institutional preference in regard

to the admission in medical colleges in Karnataka, Uttar Pradesh and

Delhi was under challenge. The position in Delhi University at that time

was that out of the total 410 seats available for admission to MBBS

course, 148 were reserved seats and 263 were non-reserved seats. For

filling up the un-reserved seats, an entrance examination was held. The

first 20 seats were filled from amongst the eligible candidates who passed

the entrance examination, in the order of merit and the remaining 212

seats were filled, again on merit, but by the candidates, who had passed

their qualifying examinations from the schools situated in Delhi only.

Various writ petitions were then filed seeking admission to the medical

colleges affiliated to Delhi University, Karnataka University and King

George's Medical College, Lucknow, affiliated to Lucknow University.

The challenge in the writ petitions was to the constitutional validity of the

residential requirements and institutional preference. The Apex Court was

informed, during the course of hearing, that it was a uniform and

constitutional practice for admission of the students to provide for

residential requirements or institutional preference. However, it is not

known from the judgment as to whether, at the time the matter was heard,

the mechanism of providing institutional preference in various States

envisaged preference/ reservation for all the students passing out from

various colleges in the same State or it was preference/ reservation for the

students passing out from the very same University where admission to

the higher course was sought.

16. In Dr. Pradeep Jain and others (supra), the Apex Court noted that

though theoretically speaking, if admissions are given on the basis of all

India national entrance examination, each individual would have equal

opportunity of securing admission, but that would not take into account

diverse consideration, such as, differing level of social, economic and

educational development of different regions, disparity in the number of

seats available for. admission to the MBBS course in different States,

difficulties which may be experienced by students from one region who

might in the competition on all India basis get admission to the MBBS

course in another region far remote from their own and other allied

factors. The Court felt that though admission on All India basis is a

desirable policy, it would be unrealistic to achieve the idea in the present

circumstances since the real equality of opportunities cannot be achieved

unless there is complete absence of disparities and inequalities. The

following view taken by the Court is relevant:

"19.....There are massive social and economic disparities and inequalities not only between State and State but also between region and region within a state and even between citizens and citizens within the same region. There is a yawning gap between the rich and the poor and there arc so many disabilities and injustices from which the poor suffer as a class that they cannot avail themselves of any opportunities which may in law be open to them. They do not have the social and material resources to take advantage of these opportunities which remain merely on paper recognised by law but non-existent in fact. Students from backward States or regions will hardly be able to compete with those from advanced States or regions because, though possessing an intelligent mind, they would have had no adequate opportunities for development so as to be in a position to compete with others. So also students belonging to the weaker sections who have not, by reason of their socially or

economically disadvantaged position, been able to secure education in good schools would be at a disadvantage compared to students belonging to the affluent or well-to-do families who have had the best of school education and in open All India Competition, they would be likely to be worsted. There would also be a number of students who, if they do not get admission in a medical college near their residence and are assigned admission in a far of college in another State as a result of open All India competition, may not be able to go to such other college on account of lack of resources and facilities and in the result, they would be effectively deprived of a real opportunity for pursuing the medical course even though on paper they would have got admission in medical college. It would be tantamount to telling these students that they are given an opportunity of taking up the medical course, but if they cannot afford it by reason of the medical college to which they are admitted being far away in another State, it is their, bad luck: the State cannot help it, because the State has done all that it could, namely, provide equal opportunity to all for medical education."

The Court felt that a certain percentage of reservation on the basis

of residence requirements may legitimately be made in order to equalize

the opportunities for medical admission, such percentage of reservation

may also include institutional reservation for students passing from the

same college or clearing the qualifying examination from the school

system of the educational hinterland of the medical colleges in the States

and for that purpose there could be no distinction between the schools

affiliated to the State Board and the schools affiliated to the Central

Board. The Court, however, held that the reservation based on residential

requirement or institutional preference could not exceed the outer limit of

70% of the total number of seats after taking into account the other kinds

of reservations validly made. The Court also desired that this outer limit

of 70% should be gradually reduced over a period of time.

As regards, the admission to Post Graduate Medical Course, the

view of the Court was as follows:

"We are therefore of the view that so far as admissions to postgraduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to border 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 postgraduate 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."

17. In Saurabh Chaudri and Others vs. Union of India and Others

(2003) 11 SCC 146, strongly relied upon by the respondents, the

petitioners, who were original residents of Delhi joined various medical

colleges out of Delhi for undertaking MBBS course against 15% All

India Quota. They applied for admission to the Post Graduate Medical

courses in Delhi University. Delhi University, however, notified that the

students who had taken admission under the 15% All India Quota will

not be eligible to seek admission against 75% seats reserved for the

students from Delhi. Being aggrieved from the notification of Delhi

University, they challenged the aforesaid institutional preference. To the

extent relevant for the purpose of this case, the said judgment reads as

under:-

"39. The Ideal situation, although it might have been to see that only meritorious students irrespective of caste, creed, sex, place of birth, domicile/residence are treated equally but history is replete with situations to show that India is not ready therefore. Sociological condition prevailing in India compelled the makers of the Constitution to bring in Articles 15 and 16 in the Constitution. The said Articles for all intent and purport are species of Article 14 which is the genies in a sense that they provide for exception to the equality

clause also. Preference to a class of persons whether based on caste, creed, religion, place of birth, domicile or residence is embedded in- cur constitutional scheme. Whereas larger interest of the country must be perceived, the law makers cannot shut their eyes to the local needs also. Such local needs must receive due consideration keeping in view the duties of the State contained in Articles 41 and 47 of the Constitution of India.

64. The sole question, therefore, is as to whether reservation by way of institutional preference is ultra vires Article 14 of the Constitution of India. We think not. Article 14, it will bear repetition to state, forbids class legislation but does not forbid reasonable classification, which means - (1) must be based on reasonable and intelligible differentia; and (2) such differentia must be on rational basis.

66. The court while adjudicating upon the constitutionality of the provisions of the statute may notice all relevant facts whether existing or conceived.

67. The Court may therefore notice the following :

(i) The State runs the Universities.

(ii) It has to spend a lot of money in imparting medical education to the students of the State.

(iii) Those who get admission in Post Graduate Courses are also required to be paid stipends. Reservation of some seats to a reasonable extent, thus, would not violate the equality clause.

(iv) The criteria for institutional preference has now come to stay. It has worked out satisfactorily in most of the States for last about two decades.

(v) Even those States which defied the decision of this Court in Dr. Pradeep Jain's case (supra) had realized the need for institutional preference.

(vi) No sufficient material has been brought on record for departing from this well-established admission criteria.

(vii) It goes beyond any cavil of doubt that institutional preference is based on a reasonable and identifiable classification. It may be that while working out the percentage of reservation invariably some local students will have preference having regard to the fact that domicile/residence was one of the criteria for admission in MBBS Course. But together with the local students 15%, students who had competed in all India Entrance Examination would also be getting the same benefit. The percentage of students who were to get the benefit of reservation by way of institutional preference would further go down if the decision of this Court in Dr. Pradeep Jain's case (supra) is scrupulously followed.

(viii) Giving of such a preference is a matter of State policy which can be invalidated only in the event of being violative of Article 14 of the Constitution of India.

(ix) The students who would get the benefit of institutional preference being on identifiable ground, there is hardly any scope for manipulation.

108. As regards the constitutional validity of institutional/regional/university wise reservation/preference, in view of this court's emphasis on the need to strive for excellence which alone is in the national interest, it may not be possible to sustain its constitutional validity.

However, the presently available decisional law is in support of institutional preference to the extent of 50% of the total available seats in the educational institutions concerned."

The Court, however, held that the institutional preference should

be limited to 50%, the rest being left for open competition based

primarily on merits on all India basis.

18. In Nidamarti Maheshkumar vs. State of Maharashtra and Ors.

1986(2) SCC 534, a judgment delivered by Hon'ble Mr Justice P.N.

Bhagwati, who was also the author of the judgment in Pradeep Jain, the

rules impugned before the Apex Court stipulated that the students who

passed out their 12th examination from schools/colleges situated within

the jurisdiction of one University would not be eligible for admission to

medical colleges situated in the jurisdiction of other University. The

admission to medical colleges were thus made subject to region wise

classification, depending upon the region in which a particular University

was situated. The writ petition was rejected by the High Court relaying

upon the decision of the Apex Court in Pradeep Jain (supra). This

regional classification for admission to medical colleges was sought to be

defended on the ground that Vidharbha and Marathwada regions were

backward as compared to Pune and Bombay regions which were far more

advanced. Rejecting the contention, the Apex Court inter alia as under:-

"We do not think it is possible to categorise the regions within the jurisdiction of the various universities as backward or advanced as if they were exclusive categories and in any event there is no material placed before us which would persuade us to reach that conclusion. But even if the regions within the jurisdiction of the universities in Vidharbha and Marathwada can be said to be backward and regions within the jurisdiction of the universities in Bombay and Pune can be said to be advanced, we do not think that regionwise classification for admission to medical colleges can he sustained. There is no reason why a brilliant student from a region which is within the jurisdiction of a university in Vidharbha or Marathwada area should be denied the opportunity of medical education in Bombay or Pune. Why should he remain confined to the so- called backward region from which he comes? Should an equal opportunity for medical education not he made available to him as is available to students from regions within the jurisdiction of Bombay and Pune Universities? Why should mobility for educational advancement be impeded by geographical limitations within the State? Would this clearly not be a denial of equal opportunity violative of Article 14 of the Constitution? The answer must clearly be in the affirmative. It would plainly be violative of the mandate of the equality clause to compartmentalize the State into different regions and provide that a student from one region should not he allowed to migrate to another region for medical education and thus be denied equal

opportunity with others in the State for medical education. This is precisely the reason why this Court struck-down unitwise scheme for admission to medical colleges in the State of Tamil Nadu in A. Peeria Karuppan's case.

...The ratio of this decision applies fully and completely to the present case. Here also as a result of the regionwise classification a student from one region who has secured lesser marks than another from a different region may be selected for admission to the medical college or colleges within his region while the student who has secured higher marks may not succeed in getting selected for admission to the medical college or colleges within his region. And moreover, a student from one region would have no opportunity for securing admission in the medical college or colleges in another region, though he may have done much better than the student in that other region. The regionwise scheme adopted by the State Government in Rule B(2) clearly results in denial of equal opportunity violative of Article 14 of the Constitution."

The respondents before the Apex Court relied upon its earlier

decision in D.N. Chanchala (supra). Dealing with the said contention,

the Court, inter alia, held as under:-

"There are two basic differences between the regionwise classification in the present case and the university-wise reservation in D.N. Chanchala's case (supra). Firstly, there was no common examination or uniform standard of evaluation in the different universities in D.N.

Chanchala's case (supra) so that it could not be said that a candidate obtaining lesser marks in the PUC examination held by one university was necessarily less meritorious than another student getting more marks in the PUC examination held by another university. But here in the present case there is only one common examination for the 12th Standard held in the entire state with the same syllabus and the same set of questions and uniform standard of evaluation with the result that it can be safely predicated that a student who gets less marks in the 12th Standard examination may ordinarily be regarded as less meritorious than another student getting higher marks. If there were different examinations held by the three Division Boards with different sets of questions and different standards of evaluation the ratio of the decision in D.N. Chanchala's case would have inevitably and irresistibly applied. But the standard of comparison between students throughout the State being clear and well-defined on account of a common 12th Standard examination with same set of questions and uniform standard of evaluation the decision in D.N. Chanchala's case can have no application. Moreover in D.N. Chanchala's case (supra) the reservation in favour of students passing PUC examination of a particular university was not total but 20 per cent of the seats were made available to those passing the PUC examination of other Universities. Here in the present case, however, the reservation in favour of students who have studied in schools or colleges situate in the region within the jurisdiction of a particular university is 100 per cent and no student who has studied in a school or college within the region of another university can possibly get admission in the medical college or colleges situate within the region of that the first mentioned

university. We must therefore hold that the ratio of the decision in D.N. Chanchala's case does not compel us to take a view different from the one we are inclined to take on first principle."

The Apex Court, however, held that it would not be

unconstitutional for the State Government to provide for reservation or

preference in respect of certain percentage of seats in favour of those who

had studied within that region and even if percentage stipulated by the

State Government is on the higher side, it would not fall foul of the

constitutional mandate of equality. The following view taken by the

Court in this regard is pertinent:-

"There are two reasons why such reservation or preference would be constitutionally permissible. In the first place it would "use a considerable amount of hardship and inconvenience 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 reservation or preference regionwise. It must be remembered that there would 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 a real opportunity for

pursuing the medical course even though on paper they would have got admission in the medical college. The opportunity for medical education provided to them would be illusory and not real because they would not be able to avail of it. Moreover some difficulty would also 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 education 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 hostels. We are therefore of the view that reservation or preference in respect of a certain percentage of seats may legitimately be made in favour of those who have studied in schools or colleges within the region of a particular university, in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality."

19. In P.K. Goel and others vs. U.P. Medical Council and others

(1992) 3 SCC 232, the Apex Court came to consider the validity of the

college wise reservation/preference for admission to medical colleges

under Lucknow University. At that time, there were seven medical

colleges in Uttar Pradesh and a combined examination for admission to

the said colleges was held by the University of Lucknow. Though the

entrance examination was common, the seats in various colleges were

filled on the basis of merit list prepared in each college, out of the

institutional candidate of that college. The institutional candidate was

defined to mean a student who had obtained MBBS/MD degree of that

University/Institution. The aforesaid provision was challenged on the

ground that it was violative of Article 14 of the Constitution. One of the

contentions before the Apex Court was that the competitive entrance

examination was held on the basis of a merit list for each college out of

the institutional candidates of that college and had the applicants been

aware that it was an Open Competitive Examination for the whole State

and a combined merit list of the entire seats, the efforts by the students

would be commensurate to the competition they were likely to face. The

argument, however, was rejected by the Court wondering how the

candidates could adopt different standards of preparation and effort if

they would have known that the merit would be determined on the basis

of a combined merit list for the whole State instead of merit college wise

and observed that every student is expected and in fact does put all his

efforts and energies in securing the best position in merit in every

competitive examination. The Court also rejected the contention that

setting the clock back would result in sever disappointment amongst a

large number of successful candidates. The Court further rejected the

contention that the students who had passed MBBS course from

Gorakhpur, Jhansi and Agra were put to greater hardship and had less

privileges at the place where there were more facilities.

Noticing that the Court in State of Rajasthan and Anr. v. Dr.

Ashok Kumar Gupta and Ors. (1989) 1 SCC 93 and Municipal

Corporation of Greater Bombay and Ors.v.Thukral Anjali Deokumar

and Ors. (1989 ) 2 SCC 249 had already struck down the rule of college

wise institutional preference, the Apex Court found no difficult in striking

down the aforesaid rule.

20. In A.I.I.M.S. Students Union vs. A.I.I.M.S. and Ors. (2002) 1

SCC 428, an All India Entrance Examination for admission to Post

Graduate courses in AIIMS was held by the said institute and any medical

graduate who had scored at least 50% marks in the MBBS Examination

was eligible to appear in the said examination. The number of seats in

AIIMS in MBBS at that time was 40, whereas the number of Post

Graduate seats was 132. One third of seats were reserved for in-house

candidates of the institute and two separate merit lists were prepared.

There was a further discipline wise reservation in favour of in-house

candidates to the extent of 50% seats, subject to an overall reservation of

33%. At the time of counseling, the in-house candidates were given

priority by calling them first in point of time and the left over seats were

offered to the other candidates. One of the issues which arose in that case

was whether 33% seats could be reserved for AIIMS students on the basis

of the principles applicable for a University wise quota.

Declaring the institutional reservation for AIIMS candidates ultra

vires the Constitution, the Court permitted institutional preference to such

candidates against 25% seats available to open category candidates. It

was held that any seat left vacant out of preferential seats will be made

available to the open General Category candidates. The following view

taken by the Court in the course of the judgment is relevant:-

"32. Reservation is guided by consideration of ensuring allotment of a privilege or quota to, or conferral of state largesse on, a defined class or category of limited persons dispensing with the need of competition with another defined class of persons or remaining persons. Beneficiary of reservation is necessarily a minor or smaller group of persons which deservedly stands in need of protection or push up because of historical, geographical, economic, social, physical or similar such other handicaps. Persons consisting in reserved category are found to be an under- privileged class who cannot be treated on par with

a larger and more privileged class of persons and shall be denied social justice and equality unless protected and encouraged.

44. The basic rule is equality of opportunity for every person in the country which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels and education like post-graduate courses. Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped-the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage.

"59. The upshot of the above discussion is that institutional reservation is not supported by the Constitution or constitutional principles. A certain degree of preference for students of the same institution intending to prosecute further studies therein is permissible on grounds of convenience, suitability and familiarity with an educational environment. Such preference has to be reasonable and not excessive. The preference has to be prescribed without making an excessive or substantial departure from the rule of merit and equality. It has to be kept within limits.

We fail to understand why those who were assessed to be best in the country before entering the portals of the Institute fall down to such low levels as having perceptibly ceased to be best, not

remaining even better, within a period of a few years spend in the Institute. They trail behind even such candidates as fall in constitutionally reserved categories and yet steal a march over them in claiming creamy disciplines. The only reason which logically follows from the material available on record is that being assured of allotment of post-graduation seats in the same institution, the zeal for preserving excellence is lost. The students lose craving for learning. Those who impart instructions also feel that their non-seriousness would not make any difference for their taughts. If that is so, there is no reason why at the point of clearing graduation and seeking entry in post- graduation courses of study they should not give way for those who deserve better, and much better, than them. AIIMS holds and conducts a common entrance examination for post-graduation wherein graduates of AIIMS and graduates from all over the country participate and are tested by common standards. The AIIMS students trial in the race and yet are declared winners, thanks to the ingenious reservation in their favour. One who justifies reservation must place on record adequate material enough, to satisfy an objective mind judicially trained, to sustain the reservation, its extent and qualifying parameters. In the case at hand no such material has been placed on record either by the institute or by the AIIMS Students' Union.

Will a less efficient post graduate or specialist doctor be a boon to society? Is the human life so cheap as to be entrusted to mediocre when meritorious are available? If the answer is yes, we are cutting at the roots of nation's health and depriving right to equality of its meaning. We have no hesitation in holding, and thereby agreeing with the Division Bench of High Court, that reserving

33% seats for institutional candidates was in effect 100% reservation for subjects.

Such a reservation based on institutional continuity in the absence of any relegation based on institutional continuity in the absence of any relevant evidence in justification thereof is unconstitutional and violative of Article 14 of the Constitution and has therefore to be struck down. The impugned reservation, obnoxious to merit, fails to satisfy the twin test under Article 14. Having taken a common entrance test, there is no ineligible differentia which distinguishes the institutional candidates from others; and there is no nexus sought to be achieved with the objects of AIIMS by such reservation."

21. In Dr. Sahil Deepak vs. State of Maharashtra, W.P.(C) No.

1863/2009, the petitioners appeared in the Common Entrance Test

conducted by the State Government for admission to Post Graduate

Medical courses. The rules framed by the Government excluded the

candidates who had obtained MBBS degree from certain deemed

Universities, namely, D.Y. Patil Vidyapeeth and Bharti Vidyapeeth, both

having their colleges in State of Maharashtra from sitting in the said

examination. The question, which arose for consideration before the

High Court, was whether the rules barring holder of MBBS degree from

a deemed University situated in the State of Maharashtra to appear for

admission to PG Course, whose admission is based on the marks

obtained in the CET conducted by the State of Maharashtra, was

unreasonable and discriminatory, thereby violating Article 14 of the

Constitution. The Government, however, contended that they were

rightly excluded from appearing in the test since their original admission

to MBBS course was not through CET. After taking into consideration

the decision of Apex Court in Pradeep Jain (supra) and Nidamarti

Maheshkumar (supra), the High Court held that the admission to the

Post Graduate courses has to be on merit subject to reservations and the

rules to the extent they excluded the students, obtaining MBBS from

deemed University and Non-Agricultural Universities were illegal.

22. The right of a meritorious student to get admission in a Post

Graduate Medical course is a fundamental right which cannot be whittled

down, except for valid considerations. As observed by Supreme Court in

Islamic Education and Another vs. State of Karnataka and others

(2003) 6 SCC 697, for the purpose of achieving excellence for the

professional institutions, merit indisputably should be a relevant criteria

and the merit, particularly for the purpose of admission in a profession

institution, should be judged, as far as possible, on the basis of same or

similar examination. It was further observed that inter se merit amongst

the students similarly situated should be judged applying the same norm

or standard. It was precisely for these reasons that an All India Entrance

Test called NEET, 2013 was held for admission to all the medical

institutions in the country so that all the candidates seeking admission to

the medical institutions are subjected to same examination, same sets of

questions and same ways of evaluating the answer books.

23. As observed by Supreme Court in Dr. Saurabh Chaudhary

(surpa), in an ideal situation, only meritorious students irrespective of

caste, creed, sex, place of birth, domicile/residence are treated equally.

But, such a situation continues to be a mirage in our country, primarily

because of diverse sociological conditions prevailing in India, thereby

necessitating preference/reservation to certain classes, in the larger

interest of the society. However, such classification to withstand the

touchstone of equality enshrined in Article 14 of the Constitution must

necessarily to be based on a reasonable and intelligible differentia, which,

in turn, must be founded on a rational basis. As observed by Supreme

Court in A.I.I.M.S. Students Union (supra), the beneficiary of

reservation necessarily and deservedly stands in need of protection or

push up because of historical, geographical, economic, social, physical or

similar such other handicaps, who on account of such handicaps cannot

be treated at par with those belonging to more privileged. The Apex

Court was of the view that a candidate getting more marks is entitled to

preference for admission and this proposition assumes greater

significance when we reach the level of higher education such as Post

Graduate courses, and reservation in such courses being an exception

needs to be fully justified, the burden of proving justification being on

the class which seeks preference in admission to such courses. As

observed by the Apex Court if we entrusts human life to mediocres, when

meritorious are available, we are only cutting at the roots of nation's

health and depriving the right to equality of its meaning. A perusal of the

table given in para 19 of the amended petition, which was not disputed

during the course of arguments shows that out of first 1000 All India

ranks, the students of Delhi University held as many as 36 ranks, whereas

not a single student from I.P. University got any rank up to 1000.

Between 1001 -1500, Delhi University graduates secured 16 ranks,

whereas I.P. University graduates secured only 2 ranks. Between 1501-

2000, Delhi University graduates secured 11 ranks, whereas I.P.

University graduates secured only 1 rank. Between 2001-3000, Delhi

University graduates secured 27 ranks, whereas I.P. University graduates

secured only 3 ranks. Between 3001-5000, Delhi University graduates

secured 40 ranks, whereas I.P. University graduates secured only 3 ranks.

Between 5001-7500, Delhi University graduates secured 53 ranks,

whereas I.P. University graduates secured only 6 ranks. Between 7501-

10000, Delhi University graduates secured 51 ranks, whereas I.P.

University graduates secured only 2 ranks. Thus, up to rank 10000, 234

positions were held by the student from Delhi University, whereas only

17 positions were held by the students of I.P. University. Therefore, it

cannot be disputed that considered on the basis of their rank in NEET,

2013, the candidates who passed out from Delhi University were much

more meritorious than the candidates who passed out from I.P.

University. Therefore, the question which arises for consideration is as to

whether excluding the candidates who passed out their MBBS/BDS

course from Delhi University, despite their having obtained higher marks

in an Entrance Test which was common to all the candidates in the

country can be said to be constitutionally valid.

24. In D.N. Chanchala (supra), the Apex Court had upheld the region

wise classification primarily for two reasons. Firstly, there was no

common examination or standard of evaluation in the different

Universities which had been set up in three different places, established

to cater to the needs of their respective areas. Therefore, it could not be

said that a candidate obtaining lesser marks in the examination held by

one university was necessarily less meritorious than another student

getting higher marks in the examination held by another University. But,

that would not be the position when the students of all the Universities

are subjected to a common examination, have to answer same sets of

questions and are evaluated by same set of examiners. It was this very

consideration which prevailed with the Apex Court in striking down such

classification in Nidamarti Maheshkumar (supra), when the Court said

that if there were different examinations held by three different Boards

with different sets of questions and different standers of evaluation, the

ratio of the decision in D.N. Chanchala's case (supra), would have been

applied. The second reasons for upholding such classification in D.N.

Chanchala (supra) was that the Universities/Medical Colleges were set

up in different places, to cater to the need of different areas and the Court

was of the view that the Government which provides funds for

functioning of an institution has a right to decide the sources from where

admission could be made to the Universities set up in three different

places. However, in the case before this Court, both Delhi University as

well as I.P. University are situated in the same territory and it cannot be

said that Delhi University caters to the need of one region, whereas I.P.

University caters to the needs of another region in Delhi. Unlike many

States, in Delhi, there are no backward or forward areas and in any case,

there is no geographical division in the jurisdiction of I.P. University and

Delhi University. In D.N. Chanchala (supra), the Court also found that

20% of the seats could be made available to the students passing from

other Universities. However, in I.P. University, as far as the seats in the

State Quota are concerned, all of them are proposed to be filled only from

amongst the candidates who passed out their qualifying examination

from that very University. Therefore, the justification of the Supreme

Court in D.N. Chanchala (supra) cannot be applied to the case before

this Court.

25. The only justification given by the private respondents for

excluding the candidates who passed their qualifying examination from

Delhi University was that since more meritorious candidates take

admission to the Post Graduate Medical courses in Delhi University and

consequently they also take higher rank in the competitive examination,

the students of I.P. University will not get admission to PG course in

their own University if the students of Delhi University are not excluded

from admission to the seats falling in the State Quota. In my view, the

justification given by them for excluding the candidates qualifying from

Delhi University is wholly irrational and defies logic. This is nobody's

case that the infrastructure such as equipments, faculty, etc. available in

I.P. University is inferior or inadequate as compared to such

infrastructure available in Delhi University. This is also not their case

that there are any inherent disadvantages of studying in I.P. University.

Once admitted in a medical college, irrespective of whether it is affiliated

to Delhi University or I.P. University, every student gets equal

opportunity to excel in the field of his education, by hard work and

sincerity of purpose. Nothing prevents the students studying in I.P.

University from working hard and competing with or even surpassing the

students of Delhi University. Every medical college is required to have

minimum infrastructure, as prescribed by Medical Council of India.

Even the qualifications of the faculty members are fixed by the

University. Therefore, it would be difficult to say that the students in I.P.

University are placed at a disadvantage, as compared to the student of

Delhi University. It would only be appropriate at this stage to take note of

the view taken by the Apex Court in this Court in A.I.I.M.S. Students

Union (supra). Referring to the contention that the students passing out

MBBS from AIIMS were not able to compete with the candidates from

other Universities/colleges on merit, the Apex Court observed that the

only reason for their standard falling down could be the assurance of

allotment of post graduate seats in the same institution, as a result of

which they lost zeal for preserving excellence and became complacent.

The court was of the view that there was no reason why such students

should not give way for those who deserve better than them. The

observation made by the Apex Court in respect of the candidates from

AIIMS aptly applies to the candidates from I.P. University. Considering

that the number of post graduate seats in the said University in State

Quota was comparatively large considering the number of MBBS

students in the said University, it is quite possible that the students of the

said University became complacent, assuming that they were, in any

case, likely to get admission in the PG courses even if they do not work

really hard. Such students cannot be allowed to take advantage of their

own complacency and must make way for more meritorious students

from Delhi University.

26. In Nidamarti Maheshkumar (supra), authored by the same

Hon'ble Judge who also authored the judgment in Pradeep Jain (supra),

the Apex Court rejected the University wise classification even in respect

of the Universities situated in different regions and the contention that the

Universities in Vidharbha and Marathwada were situated in backward

regions as against Universities in Bombay and Pune, which were situated

in advanced region, and held that there was no reason why a brilliant

student from one region should not get admission in a University of

another region. In the case before this Court even that justification is not

available to the respondents since both I.P. University and Delhi

University are situated in the same territory having no regional

distinction. The decision of the Apex Court in P.K. Goel and others

(supra) also squarely applies to the case before this Court. In the

aforesaid case, there was a Common Entrance Examination for seven

medical colleges in Uttar Pradesh, but the seats in various colleges were

filled on the basis of merit list prepared in each college, out of the

candidates from that very college. One of the arguments advanced before

the Apex Court was that since the examination was held on the premise

that there would be a separate merit list for each college, the candidates

made efforts commensurate with the competition they were likely to face

and had they been aware that it would be an open competitive

examination for the whole State, their efforts would have been much

more. The argument was, however, expressly rejected by the Apex Court

which repelled the contention that the candidates would adopt different

standards of preparation considering the level of competition they were

likely to face. As observed by the Court every student sitting in a

competitive examination is expected to do his best and put all his efforts

and energies in securing the best position for him. The Court also

rejected the contention that quashing college wise merit list would lead to

disappointment amongst a large number of successful candidates. The

view taken by the Apex Court equally applies to the case before this

Court. It cannot be accepted that had the candidates of IP University

known that they would have to compete with the candidates of Delhi

University even for admission against the seats in the State quota, they

would have worked harder to achieve higher rank in the competitive

examination. Every candidate sitting in a competitive examination is

expected to try his best to obtain the highest possible rank and put all out

efforts, irrespective of the extent of the competition he is likely to face

and if a student becomes complacent and accordingly does not study

enough on the assumption that he is likely to get admission to higher

course even if he does not work hard enough, he must make way for the

more meritorious candidate whether he comes from Delhi University or

from I.P. University.

27. Coming to Pradeep Jain (supra), admittedly, at the time the

aforesaid decision was rendered, there was only one University in Delhi,

I.P. University having been set up much later. The issue before the Court

was whether Delhi University was justified in excluding the candidates

who had passed out from other States, while considering admission to

212 seats to medical courses in Delhi University. During the course of

hearing, the Apex Court was informed of the practice of according

preference to students on the basis of residence or institution from which

they had passed out. The reason for upholding such rule was the diverse

level of socio-economic and educational development of different

regions, possible disparity in the number of seats available for admission

to the MBBS course in different States and the difficulty which the

students from one region may face while competing for admission in

another region. The Court acknowledged that the students from

backward State or region would hardly be able to compete with those

advanced States or regions because they did not have adequate

opportunities for development. However, none of these considerations

are available to the students passing MBBS/BDS from I.P. University,

since both the Universities are situated at the same place and the students

from I.P. University do not suffer from any such disability or handicap

which would give unfair advantage to the candidates from Delhi

University, over them. More importantly, considering that there was only

one University in Delhi at that time, the institutional preference approved

by the Apex Court, when considered in the current scenario where there

are two Universities in Delhi, should be construed as an institutional

preference for both the institutions/Universities in Delhi. This is more so

considering the decision of the Apex Court in Nidamarti Maheshkumar

(supra), which was later in point of time and was authored by the same

Hon'ble Judge who wrote the judgment in Pradeep Jain (supra). Had

the Apex Court approved the University wise preference/reservation in

Pradeep Jain (supra), it would not have struck down University based

classification in Nidamarti Maheshkumar (supra).

The learned counsel for the respondents has placed reliance upon

decision of Gujarat High Court in Prakash Yadav versus State of

Gujarat and others, Special Leave Application No. 9018/2013 and

connected matters decided on 26.6.2013, in support of his contention that

IP University is entitled in law to reserve all the seats in the State Quota

for the students who passed their qualifying examination from that

university. In the aforesaid case, the petitioners in SCA No.9018/2013

and 9639/2013 wanted that admission in PG Medical Courses in the

colleges affiliated with Maharaja Krishnakumarsinh Bhavnagar

University and M.S. University should be on the basis of the existing

forms prevailing before the NEET was implemented, whereas the

opposing group of students relying upon the NEET, called for preparation

of merit list on NEET results and contended that the prayer made by the

petitioners in those petitions runs counter to MCI Regulations and also

amount to compelling the universities to violate the said regulations. The

petitioners in SCA No.9062/2013 and 9583/2013 had no objection to

preparation of State Merit List based on NEET but wanted preference for

the students of Gujarat University as per the rules of the said university.

The students opposing them wanted admission strictly on the basis of

NEET and contended that the rules, provided for preference to the

students, are repugnant to PG-MCI Regulations. During the course of the

hearing, it was pointed out that the Rule 4.1 of the statutory rules of

Gujarat University provided for giving preference to its own students for

admission in PG Medical Course, and the contention was that preparing

the State-wise list would wipe out the university preference without any

amendment to the statutory rules. It was also submitted that the rules

framed by the Gujarat University were not repugnant to the MCI

Regulations and therefore the State was not justified in interfering with

the process of admission to be undertaken by the said University on

NEET based merit list. The learned Single Judge, who delivered the

judgment noted that Rule 4.1 of Gujarat University Rules had been

challenged in SCA No.5607/1996 and validity of the said Rule has been

upheld by the Division Bench of that Court in another decision. The High

Court then considered the decision of the Apex Court in D.N. Chanchala

(supra) and Dr. Saurabh Chaudhary (supra) and held that the

institutional preference embodied in the Rules of the university, unless

taken away either by amending the Rules or by any Regulation, under the

provisions of Medical Council of India, has to be adhered to. The Court

was of the view that MCI Regulation had only taken away the choice

available with the universities for determining the academic merit of the

students by mandating them to accept the merit of the students through a

single entrance test called NEET and the university preference provided

in the statutory rules was not taken away since there was no provision in

the said Regulations for doing away with the university preference. In Dr.

Saurabh Chaudhary (supra), the Apex Court noted that the State runs the

universities and has to spent a lot of money in imparting medical

education to the students of the State and those who are given admission

in the Post Graduate Courses are also required to be paid stipend and

giving institutional preference is a matter of State policy which can be

invalidated only in the event of being violative of Article 14 of the

Constitution.

However, in the case before this Court, there is no statutory rule

framed by IP University for giving preference/ reservation to its students

while making admissions in the State Quota. The Indraprastha

Vishvavidhyalaya Act, 1998, on which reliance was placed by the

respondents contains no such provision. Also, neither the Delhi

Government has framed any rule providing for preference/ reservation to

the students from Delhi University, for admission against the State Quota

seats nor has any Act, prescribing any such preference/ reservation has

been passed by Delhi Legislature in respect of IP University. Therefore,

there is no statute or statutory rules permitting preference/ reservation to

the students passing their qualifying examination from IP University, for

the purpose of admission to the Post Graduate Medical Course in the said

University.

In fact, even Delhi University does not have statutory rules

providing for preference/ reservation to its own students in the matter of

admission to PG Medical Courses. Therefore, reliance upon the decision

of the Gujarat High Court by the respondents is wholly misplaced.

28. A mere administrative decision of the university to accord

preference/ reservation to its own students, in the matter of admission to

PG Medical Course, cannot be treated at par with a statutory rule

/regulation which could be framed either by the Government or by the

university. Whether such a rule/ regulation if made would withstand the

test of equality and reasonableness in terms of Article 14 of the

Constitution is yet another question which does not arise for

consideration in this case.

29. In their additional affidavit filed on 24.7.2013, the private

respondents have stated that university-wise preference is adhered to in

Gujarat University, Saurashtra University and Banaras Hindu University.

As against this, the petitioners have stated in their additional affidavit

filed on 24.7.2013 that in 12 States with multiple universities i.e. Tamil

Nadu, Maharashtra, Karnataka, Haryana, Uttar Pradesh, Madhya Pradesh,

Kerala, Bihar, Gujarat, Assam, Orissa and Jammu and Kashmir,

institutional preference is accorded to all the medical graduates passing

out from any of the universities in the concerned State and there is no

university/ institution-wise reservation/ preference. As regards Aligarh

Muslim University and Banaras Hindu University, it is stated by them

that they do not make any reservation for Uttar Pradesh candidates at

MBBS level, whereas the Delhi University reserves 81% seats at MBBS

level and IP University reserved 53% seats at MBBS level for Delhi

students. Be that as it may, the issue before this Court is not as to whether

the preference accorded only to the students passing out qualifying

examinations from the same university in Gujarat, Saurathtra University,

Aligarh Muslim University or Banaras Hindu University is justified or

not. In the absence of those universities and full information regarding

their respective rules, no informed view in this regard can be taken. But,

if as many as 12 States with multiple universities are interpreting the

institutional preference to mean preference for all the students passing out

from various universities in the concerned State, the overwhelming

practice in the country appears to be to give preference to the students

passing their qualifying examination from any of the university in the

State concerned and university/ institution-wise preference/ reservation is

not being made. It would also be pertinent to mention here that as many

as three States i.e. Arunachal Pradesh, Mizoram, and Nagaland have no

medical college whereas five States viz. Rajasthan, Punjab, West Bengal,

Andhra Pradesh and Himachal Pradesh have only one university/ medical

university. Five States i.e. Tripura, Manipur, Goa, Meghalaya, Haryana

and Uttaranchal had only one medical college and, therefore, the question

of institutional preference/ reservation does not arise in their case. This,

coupled with the fact that at the time the Supreme Court rendered its

decision in Pradeep Jain and others (supra), there was only one

university in Delhi, I am of the considered view that the reservation/

preference only for the students of IP University, for the purpose of

admission to post graduate seats in the said university, in the State Quota,

is arbitrary, unreasonable and irrational thereby violating Article 14 of the

Constitution. There is no intelligible differentia between the medical

graduate of IP University and the medical graduate of Delhi University,

both universities being situated in the same territory without any regional

disparity and geographical division or jurisdiction. In the context of

Delhi, where both the universities are situated at the same place having

no geographical division of jurisdiction, the classification based upon

university from which the candidates passed their qualifying examination,

has no rational nexus with the object to be achieved.

30. The learned counsel for the private respondents contended that

since the amendment made to Regulation 9 has been struck down by the

Supreme Court as unconstitutional, the admissions have to be governed

by the State Regulations, as it stood prior to its amendment. Even if that

be so, since the amended regulation does not lay down any eligibility

criteria and only deals with the method of selection and does not provide

for university-wise preference/ reservation, in admission to the PG

Courses, the reliance upon the un-amended Regulation, therefore, is

wholly misplaced.

31. The final question which arises for consideration is as to what

should be the extent of reservation, if any, for admission to PG Medical

Course in IP University, in the State Quota for the students who have

passed the qualifying examination from that university. The Apex Court

has upheld the limited reservation or preference for the students who had

studied in a particular region though as far as Delhi University and IP

University are concerned, both of them are situated in the same region

and therefore strictly speaking the consideration available for regional

preference are not available to the students belonging to IP University.

The contention of the petitioners is that even if preference for IP

University is upheld, the same cannot exceed 15% of the open seats in

PG Courses. According to them, the total number of PG seats in IP

University being 122 [121 (degree) + 1 (diploma)], after excluding 18

seats for SC candidates, 9 seats for ST candidates and 33 seats for OBCs

candidates, in which there can be no institutional reservation, and

applying AIIMS case, reservation for IP University cannot exceed 15%

of the open seats, which comes to 9 seats.

32. In Nidamarti Maheshkumar (supra), the Apex Court clarified that

the total number of seats means the seats after deducting the number of

seats required to be made available for admission on All India Basis. It

was further held that the number of such seats has to be taken out and

then the remaining number of open seats, after taking into account the

other kinds of reservations validly made percentage of 70:30 must be

applied for determining the extent to which regional reservation or

preference can legitimately be made.

In AIIMS case (supra), the Apex Court did not approve the

reservation of 1/3rd of the total seats for the in-house students and

reduced the percentage to 25% of the post graduate seats. But, the

Constitutional Bench in Dr. Saurabh Chaudhary (supra), when finding

that even 25% of the total PG seats comes to 82.5.% of the number of

internal candidates, reduced the reservation to 50% of the total under

graduate seats.

33. Considering all the facts and circumstances of the case and the

view taken by the Apex Court in the cases mentioned hereinabove, I am

of the view that 50% of the total seats for PG medical course available in

IP University, under the State Quota, should be filled up purely on the

basis of the ranks obtained by the candidates, passed out their qualifying

examination either from Delhi University or from IP University and the

remaining 50% of such seats should be filled from amongst the medical

graduates of IP University alone. This direction would apply to reserved

as well as un-reserved seats, meaning thereby that medical graduates of

Delhi University as well as IP University will be considered in the order

of their combined merit, for admission to 50% of the reserved seats out of

State Quota whereas only the reserved category medical graduates of IP

University will be considered, in the order of merit, for admission against

remaining 50% reserved seats in the State Quota. Similarly, the General

Category candidates of Delhi University as well as IP University shall be

considered, in the order of their combined merit, for admission against

50% of the un-reserved seats in the State Quota whereas medical

graduates only of IP University shall be considered, in the order of merit,

for the remaining 50% un-reserved seats in the State Quota. If any of the

reserved seats for which students of both the universities are to be

considered in terms of this judgment remains unfilled, that shall be

transferred to the General Category seats against which General Category

students of both the universities are to be considered. Similarly, if any

reserved seat against which only the medical graduates of IP University

are to be considered in terms of this judgment remains un-filled, that seat

would be transferred to the General Category seats against which only

the medical graduates of IP University are to be considered in terms of

this judgment.

34. The applications from medical graduates of IP University have

already been invited by the said university. It is directed to immediately

issue public notice, in the leading newspapers of Delhi, inviting

applications from the eligible medical graduates of Delhi University for

being considered for admission to 50% PG seats in State Quota in terms

of this judgment, giving them minimum required time for the purpose.

The university is directed to prepare and issue two separate lists, one

containing the names of the eligible medical graduates of both the

universities, who are to be considered for admission to half of the State

Quota seats and the second list containing the names of only eligible IP

University medical graduates, who are to be considered for admission

against the remaining 50% seats in the State Quota. The list shall be

prepared without any delay and shall be duly notified. The counseling

shall follow immediately, thereafter so as to avoid loss of teaching time.

While passing this order, I am conscious of the fact that the teaching

which is to commence on 1.8.2013 is likely to be delayed by few days,

but this is an unavoidable situation which has arisen only on account of

IP University seeking to act in a manner which is contrary to law of the

land.

With aforesaid directions, the writ petition stands disposed of.

There shall be no orders as to costs.

V.K.JAIN, J JULY 29, 2013 bg