Madhya Pradesh High Court
Association Of Private ... vs The State Of Madhya Pradesh on 21 September, 2021
Author: Chief Justice
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THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH
AT JABALPUR
(DIVISION BENCH)
Writ Petition No.6509/2019
Association of Private Universities, Madhya Pradesh and another
................... Petitioners
Vs.
State of Madhya Pradesh and others
.............. Respondents
___________________________________________________________
Coram:
Hon'ble Shri Justice Mohammad Rafiq, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, Judge
___________________________________________________________
Presence:
Shri Siddharth R. Gupta, learned counsel for the petitioners.
Shri Bramhadatt Singh, learned Government Advocate for
respondent Nos.1 & 2/State.
Shri Anoop Nair, learned counsel for the respondent No.3/Medical
Council of India.
___________________________________________________________
Whether approved for reporting : No.
_______________________________________________________
Heard on: 25.8.2021
_______________________________________________________
ORDER
(Passed on this 21st day of September, 2021)
Per : Mohammad Rafiq, Chief Justice:
This writ petition has been filed by the Association of Private
Universities, Madhya Pradesh and Shri J.N. Chouksey, Chairman &
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Chancellor of one such Private University, challenging constitutional
validity of Rule 2(13) read with Entry 3 and 4 of Schedule I of the
Madhya Pradesh Medical Admission Rules, 2018 (for short the
"Admission Rules of 2018") framed under Madhya Pradesh Niji
Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka
Nirdharan) Adhiniyam, 2007 (for short "the Act of 2007") as being
violative of Articles 14 and 19(1)(g) of the Constitution of India and
repugnant to Regulation 9 and other provisions of the Medical Council of
India Postgraduate Education Regulations, 2000 (for short "Regulations
of 2000"). Even though the writ petition also contains a prayer
challenging Rule 4(2) read with Entry 3 of Schedule I of the said
Admission Rules pertaining to 15% NRI seats but in the course of
hearing, the learned counsel for the petitioners confined his argument to
the first prayer keeping the second issue open.
2. Petitioner No.1 is an association of the private universities
functioning in the State of Madhya Pradesh, registered and approved
under the Act of 2007. The members of the petitioner association are
those private universities which are imparting medical education in
undergraduate as well as postgraduate courses. The petitioner No.2 is
Chairman and Chancellor of LNCT University which runs and operates
LN Medical College Hospital and Research Centre, Bhopal. He has been
made as one of the petitioners, apart from being member of the
Association, in his capacity as a citizen for invocation of fundamental
right under Article 19(1)(g) of the Constitution of India. The members of
the petitioner association claim the right to admit the meritorious students
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from the merit list prepared by National Eligibility-cum-Entrance Test (for
short "NEET"). Rule 2(13) of the aforesaid Rules prescribes "Eligibility"
in Rule 2(M) as what is stated in Schedule I appended thereto. The
petitioners are aggrieved in particular by Entry 3 & 4 thereof. Entry 3
pertains to diploma and degree of MD/MS PG Study Course, clause 5
whereof requires that a candidate seeking admission has to be local
resident (permanent resident/LFkkuh; fuoklh ¼ewy fuoklh½ of the State of
Madhya Pradesh, however, relaxation shall be available (a) in case of
those students who have passed out MBBS examination from Medical
Colleges situated in the State of Madhya Pradesh and (b) in case of non-
availability of students for admission by any of the above two streams, the
aforesaid restriction would stand relaxed in the second round for all other
categories of students. Clause 4 of the Entry 4 of the Schedule I of the
Admission Rules of 2018 has been similarly worded in respect of
admission to MDS (Master of Dental Surgery).
3. We have heard Shri Siddharth R. Gupta, learned counsel for the
petitioners, Shri Bramhadatt Singh, learned Government Advocate for
respondent Nos.1 and 2/State and Shri Anoop Nair, learned counsel for
respondent No.3/Medical Council of India.
4. Shri Siddharth R. Gupta, learned counsel for the petitioners argued
that there cannot be 100% reservation on the ground of domicile residence
in study course of higher levels in medical education, specifically for
admission to postgraduate medical courses. It is argued that the Entry 3
and 4 of the impugned Schedule throws the seats open to non-domicile
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i.e. out of State category candidates only if the students domiciled in the
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State of M.P. are not available in the first round. In that case also, the first
preference has been given to students who have passed out MBBS from
any Medical College situated in the State of M.P. The non-domiciled
students are strictly non-eligible. It is only when the students from both
the first two categories are not available, that admission may be offered to
non-domiciled candidates in the second round. Relying on the judgment
of Supreme Court in Dr. Pradeep Jain vs. Union of India reported in
(1984) 3 SCC 654, learned counsel for the petitioners argued that the
Supreme Court in that case, almost four decades ago, clearly held that
reservation in PG medical courses on the ground of domicile or being
resident of a particular State is discriminatory, violative of Article 14 and
is unconstitutional. The Supreme Court, however, observed that certain
percentage of seats may be reserved on the basis of 'institutional
preference' in the sense that a student who has passed MBBS course from
a medical college or university, may be given preference for admission to
the post-graduate course in the same medical college or university but
such reservation should not in any event exceed 50 per cent of the total
number of open seats available for admission to the post-graduate course.
Ratio of the aforesaid judgment of three-Judge Bench of the Supreme
Court has been reiterated by five-Judge Constitution Bench of the
Supreme Court in Saurabh Chaudari vs. Union of India reported in
(2003) 11 SCC 146 which in para 24 and 25 specifically dealt with
somewhat similar provisions and held that the expression "place of birth"
is not synonymous to the expression "domicile" and "residence" and they
reflect two different concepts flowing respectively from Article 15(1) and
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Article 16(2) of the Constitution of India. The Supreme Court in Nikhil
Himthani vs. State of Uttarakhand reported in (2013) 11 SCC 237,
dealing with a case relating to admission to PG medical courses held that
the students cannot be denied admission only on the ground of not being a
domicile of the State of Uttarakhand or having not passed out Uttarakhand
PMT and admitted in the MBBS course. The relevant clauses and
conditions so providing in the State Brochure were struck down. The
Supreme Court revisited this issue in Vishal Goyal vs. State of
Karnataka reported in (2014) 11 SCC 456 holding that reservation
cannot be made on the grounds of domicile or possessing/being a
candidate of 'Karnataka Origin'. Similarly, in Dr. Kriti Lakhina and
others vs. State of Karnataka and others reported in (2018) 17 SCC
453 whilst dealing with the eligibility criteria of being a candidate of
'Karnataka Origin', the Supreme Court held that excellence cannot be
compromised by any other consideration in the case of admissions to such
higher medical courses as the same would be detrimental to the interest of
the nation and would also affect the right to equality of opportunity under
Article 14 of the Constitution of India. The relevant eligibility condition
providing eligibility criteria of 'Karnataka Origin' was therefore struck
down.
5. Shri Siddharth R. Gupta, learned counsel for the petitioners
submitted that giving preference on the basis of domicile leads to loss of
excellence as also merit in the case of admissions to medical courses
whether it is UG or PG. For example, if in the first round of All India
Quota, there is a candidate who has secured around 600 marks out of 720,
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then he shall be made to wait and not allowed to take admission in a
private medical college of the State, to give way to a much lesser
candidate in merit, possessing say; only 450 marks out of 720 only
because the latter candidate is a domicile of the State of Madhya Pradesh.
Thus, it is a clear case of loss of merit and excellence of students whilst
sticking to the reservation policy on the basis of domicile by the State.
Relying on the judgment of Supreme Court in Sharvil Thatte and others
vs. State of Maharashtra and others in W.P. No.1814 of 2018, the
learned counsel for the petitioners argued that the State of Maharashtra in
that case restricted the eligibility condition for admission to PG courses to
domicile of State of Maharashtra. The Division Bench of High Court vide
its judgment dated 22.02.2018 quoting all the aforesaid judgments, struck
down the clause and declared the same to be unconstitutional qua the PG
courses. The Supreme Court in State of Maharashtra and others vs. Dr.
Sharvil Thatte and others reported in (2018) SCC OnLine SC 444
dismissed the SLP preferred by the State of Maharashtra affirming the
judgment of Bombay High Court.
6. Shri Siddharth R. Gupta, learned counsel for the petitioners
submitted that the concept of 'institutional reservation' applies only in the
same university or same college. A candidate becomes eligible for
admission to PG course after passing out MBBS from the same College or
the same University or from another college affiliated to the same
University. Therefore, the 'concept of institutional preference/reservation'
cannot apply when a student has done MBBS UG from one college under
a different University and claims 'institutional preference/reservation' to
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an altogether different private medical college affiliated to a private
university established under a separate enactment. It cannot be applied on
a Statewide level on a generic basis. Referring to the provisions of the Act
of 2007, it is argued that the private universities are established under the
provisions of the said enactment as altogether different entities with
separate seal, name and identity. They have no connection and nexus with
the operation of the State Government or any University. They have their
own system and pattern of conducting examinations and declaration of
results in terms of Ordinances and Statutes framed by them. The role of
State Government in their case is very minimal and that too at the stage of
conducting a common counseling for admissions to the medical colleges
and allotting them students purely as per merit. The concept of
'institutional reservation' in private medical colleges would apply only
when the concerned student has passed out MBBS course from a medical
college affiliated to the very same private university.
7. Shri Siddharth R. Gupta, learned counsel for the petitioners argued
that impugned clause giving preference to domicile student to the extent
of 100% seats, completely eliminates competition with far more
meritorious candidates from outside the State, runs foul of Article 14 of
the Constitution of India. The 'reasonable object' which is sought to be
achieved by making such an omnibus provision excluding competition,
merit and excellence at the national level, besides being arbitrary, is
highly discriminatory. Moreover, the respondents have not clarified as to
why candidates who are ineligible on the grounds of domicile or residence
can become eligible only because they have done MBBS from a medical
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college situated within the territorial limits of the State. The impugned
clause results in complete freezing of seats in favour of candidates who
are either domicile of M.P. or who have done their MBBS from the
medical colleges of the State. Reservation in excess of 50%, howsoever
laudable, is constitutionally impermissible and unacceptable. The
impugned clauses 3 and 4 of Entry 3 are thus ultra vires Article 14, 19(1)
(g) and 21 of the Constitution of India. It is argued that the impugned
clause in the Schedule also runs contrary to MCI PG Regulations, 2000
and, therefore, unconstitutional and ultra vires Article 245 read with Entry
66, List I, VII Schedule of the Constitution of India as it militates against
the very concept of national merit and admissions on the basis of
excellence at the national level. It is argued that NEET is a national
eligibility entrance test introduced for the purpose of ensuring observance
of merit for admission to medical course at the national level and removal
of regional and state level disparities in the admission process for
ensuring a nationwide flow and intermingling of meritorious students
from one region to another. Reliance in support of this argument is placed
on the judgment of Supreme Court in Christian Medical College Vellore
Association vs. Union of India and others reported in (2020) 8 SCC
8. Shri Siddharth R. Gupta, learned counsel for the petitioners referred
to the judgment of the Supreme Court in Modern Dental College, vs.
State of Madhya Pradesh reported in (2016) 7 SCC 353 wherein it has
been held that the right of professional institutions to establish and
manage educational institutions was finally regarded as an 'occupation'
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befitting the recognition of this right as a fundamental right under Article
19(1)(g) in T.M.A. Pai Foundation vs. State of Karnataka reported in
(2002) 8 SCC 481. It is, therefore, argued that right to have their seats
filled from students of their choice is a fundamental right of the private
medical colleges/universities. The only obligation is that the selection
process needs to be fair, transparent and non-exploitative. The restrictions
placed on such rights have to be just on the principles of being 'manifestly
arbitrary', 'unreasonable', disproportionate', irrational' and
'discriminatory'.
9. Learned counsel for the petitioners submitted that the impugned
clause in the Schedule providing reservation for domicile and permanent
residence of Madhya Pradesh as also to the students who have completed
MBBS from Madhya Pradesh is ultra vires the Act of 2007, which in its
Section 8 confers only power to be prescribed by rules by the State
Government providing reservation of seats in private medical colleges,
restricted only to Scheduled Castes, Scheduled Tribes and Other
Backward Classes. But there is no delegation of power or any authority to
frame rules making reservation of any other kind of categories including
on the basis of domicile. Section 12 of the said Act confers power on the
State Government to make rules for carrying out the purposes of this Act,
which too cannot go beyond the scope of Section 8 of the Act of 2007.
Relying on the judgment of the Supreme Court in Prem Chand
Somchand Shah vs. Union of India and others reported in (1991) 2
SCC 48, it is argued that the impugned reservation on the basis of
domicile in the Medical Colleges in the State has been provided without
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application of mind, bereft of any prior empirical study, survey, reasoning
etc and, therefore, is violative of Articles 14 and 19 of the Constitution of
India. Reliance in support of this argument has been placed on the
judgment of the Supreme Court in Kailash Chand Sharma and others
vs. State of Rajasthan and others, reported in (2002) 6 SCC 562
wherein it was held that any classification for the purposes of reservation
or providing any kind of benefit/concession/advantage by the State
Government must be preceded by a proper and thorough survey and
empirical study. Absence of such proper exercise, benefits/concession for
reservation are discriminatory, arbitrary and liable to be struck down. It is
argued that Entry 3 and 4 in the Schedule I appended to the Admission
Rules of 2018 are unconstitutional and discriminatory for treating
different/unequal categories of Medical Colleges equally, viz. the Private
Unaided Medical College at par with Government Medical Colleges.
Reliance in this respect has been placed on the judgment of the Supreme
Court in Binoy Viswam vs. Union of India and others reported in
(2017) 7 SCC 59 wherein the Supreme Court held that equals should not
be treated alike and unlikes should not be treated alike. Only likes should
be treated alike.
10. Learned counsel for the petitioners has produced on record the chart
showing the data of admission into PG courses in Index Medical College,
Indore in respect to the year 2018-19, out of total number of 55 students,
50 M.P. domicile and 5 non-domicile; in the year 2019-20 out of total
number of 82 students, 71 M.P. domicile and 11 non-domicile; in the year
2020-21 out of total 84 number of students, 73 MP domicile and 11 non-
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domicile, were admitted. In respect of LN Medical College, Hospital &
Research Centre, Bhopal in the year 2018-19, 38 M.P. domicile and 9
non-domicile students; in the year 2019-20, 40 M.P. domicile and 16 non-
domicile students; in the year 2020-21, 43 M.P. domicile and 15 non-
domicile students were admitted. In respect of People's College of
Medical Sciences & Research Centre, Bhopal in the year 2018-19, 30 MP
domicile, 3 non-domicile students; in the year 2019-20, 23 M.P. domicile
and 3 non-domicile students and in the year 2020-21, 22 MP domicile and
3 non-domicile students, have taken admission in PG courses. Learned
counsel for the petitioners submitted that judgment of the Supreme Court
in Dr.Tanvi Behl (supra) deals with the State quota seats in the
government medical colleges and does not mention anything about the
seats with private medical colleges. Therefore, decision of the present
case should not await the answers to the reference by the Larger Bench of
the Supreme Court in Dr.Tanvi Behl (supra).
11. Per contra, Shri Bramhadatt Singh, learned Government Advocate
for the respondent-State at the outset raised preliminary objection with
regard to maintainability of the writ petition at the instance of the
Association of Private Universities contending that no non-domicile
candidate has ever raised any grievance as regards the impugned rule and,
therefore, the Union of Private Universities/Private Medical Colleges can
have no legitimate grievance with the impugned rule giving preference to
the candidates domiciled in the State of Madhya Pradesh, as what they are
concerned with is the allocation of the students and the fee which they
charge. Moreover, the students who are not having domicile in the State of
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Madhya Pradesh, yet if they have passed MBBS or BDS from any
medical/dental college in the State of Madhya Pradesh, have also been
treated at par with the domicile students of State of Madhya Pradesh and
therefore also the petitioner-Association cannot have any grudge against
the impugned policy. It is contended that since no candidate, not having
domicile in the State of Madhya Pradesh, who can be said to be
personally affected has come forward to challenge the impugned
provision, the present writ petition at the instance of the Association of
Private Universities deserves to be dismissed at the threshold.
12. Shri Bramhadatt Singh, learned Government Advocate relying on
the judgment of the Supreme Court in Dr. Tanvi Behl vs. Shrey Goel and
others, reported in (2020) 13 SCC 675 argued that Supreme Court in that
case while dealing with the same issue of legality and validity of
domicile/residence based reservation for admission to the PG Medical
courses, discussed each of the judgments which the petitioners are seeking
to rely herein, especially the Constitution Bench judgment of Supreme
Court in Saurabh Chaudri (supra) as also the earlier Constitution Bench
judgment in D.P. Joshi vs. State of Madhya Bharat reported in AIR
1955 SC 334 as well as the three-Judge Bench verdict in State of U.P. vs.
Pradip Tandon reported in (1975) 1 SCC 267. The Supreme Court upon
examining earlier three-Judge Bench judgment in Pradip Tandon
(supra) observed that in that case reservation only on the basis of 'place
of birth' was held to be offending Article 15 of the Constitution but the
reservation made in favour of people of the hill areas of Uttarakhand was
upheld, as the same was made for the benefit of socially and educationally
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backward class of citizens. In D.P. Joshi (supra) the petitioner was
admitted in a medical college in Madhya Bharat and challenged the rule
as per which the residents of other states were made to pay capitation fees
whereas the residents of Madhya Bharat not. It was held that
'domicile/residence' and 'place of birth' are different and hence
contention that the rule is repugnant to Article 15(1) must fail. The
Supreme Court further held that the classification based on residence
within the State has a fair and substantial relation to the purpose of the
law. This is to help to some extent the students who are residents of
Madhya Bharat in the prosecution of their studies and to encourage
education within its borders. Referring to the discussion made by the
Supreme Court from para 15 to 18 in Dr. Tanvi Behl (supra), the learned
Government Advocate argued that Supreme Court clearly noted on the
authority of the Constitution Bench judgment in Saurabh Chaudri
(supra), another Constitution Bench judgment in D.P. Joshi (supra) and
three-Judge bench judgment in Pradip Tandon (supra) that
"domicile/residence-based reservation is not impermissible" and that
"domicile/residence-based reservation has not been taken as an anathema
altogether to these admission processes." It was held that decision in
Pradeep Jain (supra) pales into insignificance in view of what was
subsequently held by the Constitution Bench in Saurabh Chaudri
(supra). The learned Government Advocate argued that in Dr. Tanvi Behl
(supra) the Supreme Court distinguished the judgments in Nikhil
Himthani (supra), Vishal Goyal (supra) and Kriti Lakhina (supra) and
held that "it is difficult to cull out that domiciles/residence-based
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reservation is altogether disapproved". However, the manner of providing
such reservation would always remain subject to requirement of
rationality and reasonableness.
13. It is argued that judgment of the Supreme Court in Vishal Goyal
(supra) and Kriti Lakhina (supra) are distinguishable because the
offending provisions there gave preference to only a 'candidate of
Karnataka origin", making them eligible to appear in the entrance test and
the said expression was defined in such a manner so as to exclude a
candidate who otherwise had domicile in the State or had completed
MBBS or BDS from any institution in the State of Karnataka. The
Supreme Court in Dr. Tanvi Behl (supra) clearly held that the
generalized and blanket prohibition on domicile/residence-based
reservation may not be workable in relation to the State Quota seats of PG
medical courses. The different States and Union Territories have made
different provisions for filling up these State Quota seats by making
provisions with reference to domicile or residence seemingly for the
purpose of ensuring that the candidates belonging to a particular State/UT,
would be available for rendering service in that State/UT after post-
graduation. If some provision as regards domicile/residence-based
reservation is not made, the only other method of filling up these State
Quota seats would be by way of institutional preference. But if the entire
State quota seats are provided for institutional preference alone, it would
result into undesirable consequences not permissible in law. The Supreme
Court finally held that in the given scenario, it will be difficult to accept
that domicile/residence-based reservation, as provided for filling up the
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State Quota open seats, be held invalid altogether. It was, therefore, that
the two-Judge bench of the Supreme Court in Dr. Tanvi Behl (supra) has
referred the issue to the Larger Bench whether providing for
domicile/residence-based reservation in admission to "PG Medical
Courses" within the State Quota is constitutionally invalid and is
impermissible and if not so, what should be the extent and manner of
providing the same and if yes, then, as to how the State Quota seats, other
than the permissible institutional preference seats, are to be filled up? It is
argued that all those judgments which the petitioners are seeking to rely in
support of their case are of no help to them till the question posed above
are authoritatively answered by the Larger Bench of the Supreme Court.
14. On merits, Mr. Bramhadatt Singh, learned Government Advocate
submitted that impugned provision clearly shows that there is no
'wholesale reservation' 'regardless of merit', much less on the basis of
mere domicile of the State. There is no complete bar for admission of
those candidates who are domiciled outside the State as they may
participate in the first round itself if they have passed their MBBS/BDS
examination from a medical/dental college situated in the State of
Madhya Pradesh. As regard those who are not domiciled in the State or
have not passed MBBS/BDS examination in the State, they are also
eligible for admission but only from second round onwards in the event of
non-availability of candidates from first two streams. It is submitted that
preference to candidates passing MBB/BDS from a medical/dental
college within the State of M.P. stricto sensu is not an institutional
preference as it does not apply qua the same University or the same
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college. In the present case, the concept of institutional reservation
referred to by the petitioners is not attracted and that is also one of the
reasons why reference has been made to the Larger Bench by the Supreme
Court in Dr. Tanvi Behl (supra). The Supreme Court in Dr. Tanvi Behl
(supra) has taken note of domicile preference in the matter of admission
to postgraduate medical courses as against the seats of State quota
adopting almost the similar pattern. Shri Bramhadatt Singh, learned
Government Advocate alternatively argued that the nature of institutional
reservation provided for in the impugned rule is not barred under any
statue or law laid down in any of the judgments of the Supreme Court or
any High Court. In fact, the Supreme Court as also Regulation 9(4) of the
MCI Regulations of 2000 permits the State Government to make
reasonable laws for reservation of seats of State quota. Such reservation
does not tend to discriminate between domiciles and outsiders as it was
also observed by the Supreme Court in the case of Pradeep Jain (supra)
that "any student from any part of the country would pass the qualifying
examination of that university, irrespective of the place of birth or
residence".
15. Shri Bramhadatt Singh, learned Government Advocate has
produced on record the statement showing the admission of domicile and
non-domicile students also indicating the details of those who are
admitted because they passed out MBBS/BDS courses from out of State
of M.P. regardless of whether they are domicile of M.P. or not. The details
given by the learned Government Advocate also includes the data of the
Government Medical Colleges with which we are not concerned in this
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case. But it also includes the data of Private Medical Colleges including
three Medical Colleges with regard to which the data of previous three
years has been provided by the learned counsel for the petitioners.
According to learned Government Advocate, in the year 2018-19 a total of
241 MP domicile students were admitted to PG courses in Private Medical
Colleges and 22 such students were admitted who passed their MBBS
examination from State and apart from that 10 non-domicile students were
admitted. In respect of year 2019-20 a total number of 245 MP domicile
students were admitted to PG courses and 42 such students who have
passed their MBBS from M.P. apart from admission of 15 non-domicile
students. In the year 2020-21, 374 MP domicile students were admitted to
different Medical Colleges, 57 such students who have passed
MBBS/BDS from State were admitted and 19 non-domicile students were
admitted. On the strength of these figures, learned Government Advocate
submits that in each of the past three years first of which pertains to
period prior to enforcement of the Admission Rules of 2018, the students,
who have passed MBBS/BDS from the State of M.P. were admitted. Thus
it cannot be said that non-domiciles were completely excluded in the first
round. Similarly, each year from second round of counseling itself, the
seats got automatically opened up for the non-domiciles other than those
who have passed MBBS/BDS from the State of M.P. for the obvious
reason of non-availability of candidates who have registered themselves
as domicile. Moreover, each year after the opening up of the seats for the
non-domiciles other than those who have passed MBBS/BDS from the
State of M.P., the domiciles and those who have passed MBBS/BDS from
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the State of M.P. also continued to take admission till the Mop-Up and the
subsequent rounds of counseling. Similarly, each year after the opening up
of the seats, the number of non-domiciles, other than those who have
passed MBBS/BDS from the State of M.P., have taken admission was
very paltry as compared to the domiciles and those who have passed
MBBS/BDS from the State of M.P.
16. Shri Bramhadatt Singh, learned Government Advocate has
submitted that these statistics clearly show that the non-domiciles, other
than those who have passed MBBS/BDS from the State of M.P. and were
interested in taking admission in the seats available in the colleges of M.P.
had ample opportunities to take admission from the second round of
counseling itself each year. It is contended that impugned rules are in
consonance with the MCI PG Medical Education Regulations, 2000 as
after surrendering 50% seats of Government Colleges of the State for
being filled by the Central Government under the All India Quota, the
remaining seats, be it 50% of the State Government colleges or all seats of
the private ones, fall in the category of State Quota and have to be
mandatorily filled by the State Government by conducting counseling
under Regulation 9A(3). By virtue of Regulation 9(4), the manner of
reservation of the State Quota seats has to be as prescribed in "the
applicable laws prevailing in the State", which as per the Constitution
Bench judgment of Supreme Court in Saurabh Chaudri (supra) read
with the recent judgment of the Supreme Court in the case of Dr. Tanvi
Behl (supra), is not impermissible. It is, therefore, submitted that by no
stretch of imagination, it can be said that impugned rule is irrational,
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unreasonable, arbitrary or otherwise tantamount to unreasonable
classification. Argument of the petitioners that their right to admit more
meritorious students is misconceived as every admitted student proves
his/her caliber beyond doubt by clearing the NEET and no candidate has
ever raised any grievance of being prejudiced by selection of a
purportedly less meritorious candidate.
17. Shri Bramhadatt Singh, learned Government Advocate submitted
that the object of giving preference to the domicile and institutional
candidates is to ensure that more of those candidates take admission in the
PG/specialized courses in the State whose possibility to serve the people
of MP after completing of their PG course is more. The candidates who
take admission are also made to fill-up bonds to ensure that they remain in
the State to serve the local people after completing their courses. The
chances of such candidates, who are domiciles of M.P. or otherwise who
have spent 7 or 8 years of their life in the State of M.P., is more of their
getting settled in the State of M.P. after completing their PG courses
which would, in turn, be for the benefit of the people of the State. The
learned Government Advocate, in support of this argument has also relied
on para 6 and 7 of the judgment of the Supreme Court in Nikhil
Himthani (supra). Similarly, reliance has also been placed on para 4 and
13 of the judgment of Vishal Goyal (supra) and also para 14 of the
judgment in the case of Dr. Kriti Lakhina (supra). In all these judgments
the concept of 'institutional preference' was understood in the context of
the students who have passed their MBBS/BDS from the State in
question. Even in Dr.Tanvi Behl (supra), the Supreme Court while
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interpreting the judgment in Saurabh Chaudri (supra) and in an earlier
judgment of Pradeep Jain (supra) held that reservation on the basis of
domicile/residence in admission to PG courses is not impermissible. It is
argued that the petitioners have failed to show any judgment of the
Supreme Court or any High Court which has turned down a rule giving
preference to domiciles which does not tantamount to 100% reservation in
the teeth of the fact that there are at least 10 States in India which have
framed similar rules giving preference to domicile candidates. Reference
in this connection is made to Annexure R-1 filed with the return filed by
the State.
18. Shri Bramhadatt Singh, learned Government Advocate argued that
while coordination and determination of standard in institutions for higher
education is within the exclusive domain of the Union, medical education
under List-III Entry 25 of the 7th Schedule of the constitution, though
made subject to List I Entry 66, being the entry in concurrent list, the
State is not denuded of its power to legislate on the manner and method
for admissions to postgraduate medical courses. Learned counsel cited the
Constitution Bench Judgment of Supreme Court in Tamil Nadu Medical
Officers Association and Others Vs. Union of India and Others, [2020
SCC OnLine 699] in Para 106 of which it was held that the Union cannot
by virtue of Entry 66 List I of the VII th Schedule to the Constitution,
provide for anything with respect to reservation/percentage of reservation
and/or even mode of admission within the State quota, which powers are
conferred upon the States under Entry 25 of List III. It was held that the
State in exercise of that power can make provision for mode of
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admissions, looking to the requirements and/or need in the concerned
State. The Constitution Bench of the Supreme Court in Tamil Nadu
Medical Officers Association (supra) approvingly quoted from three-
judge Bench Judgment in K. Duraiswami and another vs. State of
Tamil Nadu and others reported in (2001) 2 SCC 538 and held that
Regulation 9 (IV) of the MCI Regulations 2000 providing reservation for
in-service candidate is ultra vires the Indian Medical Council Act, 1956 is
beyond the legislative competence of the Union under Entry 66 List-I of
the Seventh Schedule to the Constitution. It was held that Union has no
power to make any provision for reservation more particularly, for in
service candidate where the State in exercise of power conferred under
Entry 25 List III can make special provisions like the one for providing
separate source of entry for in service candidate seeking admission to Post
Graduate Degree Courses. Providing reservation in favour of the domicile
on the basis of residence is therefore not completely outside the purview
of legislative competence of the state. This in any case is not a case of
reservation, but is rather identifying the source from which the admissions
have to be accorded. The Constitution Bench of the Supreme Court in
Tamil Nadu Medical Officers Association (supra) has approved this
line of reasoning propounded by three-judge Bench judgment of the
Supreme Court in case of K. Duraiswami & Anr. vs. State of Tamil
Nadu & Ors. [(2001) 2 SCC 538], AIIMS Students Union vs. AIIMS
and Others [(2002) 1 SCC 428] and State of M.P. Vs. Gopal D.
Tirthani [(2003) 7 SCC 83] while holding that providing reservation to
in service candidate, though in strict sense of the word may not be
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reservation but is an identification of source of admission. Learned
Government Advocate, therefore argued that the impugned provisions in
the Admission Rules of 2018 is also aimed at identifying source of
admission looking to the requirements and need of the State and is a valid
piece of legislation and has a rational relationship with the object of
making specialized doctors available in the State.
19. Mr. Anoop Nair, learned counsel appearing for the respondent-
Medical Council of India submitted that the issue involved in the present
matter is squarely covered against the respondents by the Constitution
Bench judgment of the Supreme Court in Saurabh Chaudri (supra),
which has been recently followed by the Supreme Court in Yatinkumar
Jasubai Patel and others vs. State of Gujarat and others reported in
(2019) 10 SCC 1. Reference has been made to the Larger Bench of the
Supreme Court in Tanvi Behl (supra) on the issue of validity of
domicile/resident based reservation in admission to Postgraduate Medical
Courses within the State quota, but the law as laid down by the Supreme
Court in its various pronouncements, including in the cases of Dr.
Pradeep Jain (supra), Saurabh Chaudri (supra) and Yatinkumar
Jasubai Patel (supra) has to be followed in respect of institutional
preference while granting admission to Postgraduate Medical Courses
within the State quota for the current academic sessions 2020-21. It is
argued that amended Clause 9(1) of the Post Graduate Medical Education
Regulation, 2000 deals with the procedure for selection of candidates for
Post Graduate Course in Medicine, which is binding on all the
stakeholders. Clause 9(1) of the said Regulation provides that there shall
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be a uniform entrance examination to all medical educational institutions
at the Postgraduate level namely "National Eligibility-cum-Entrance Test'
for admission to postgraduate courses in each academic year, which shall
be conducted under the overall supervision of the Ministry of Health &
Family Welfare, Government of India. The Medical Council of India vide
notifications dated 11.03.2017 and 31.07.20217 have amended Clause 9A
of the said Regulation so as to provide a common counselling both for the
Government Medical Colleges and the Private Medical Colleges. It is
argued that the question of institutional preference was considered for the
first time by the Supreme Court in the case of Pradeep Jain (supra),
wherein it was held that it was constitutionally permissible for the States
to have reservation of seats on the basis of institutional preference in
postgraduate medicine courses for students who have passed MBBS
course from the same University. However, such institutional reservation
should not exceed the outer limit of 50% and the percentage of
reservation of seats may be revised downwards from time to time
depending upon the prevailing situation. The Supreme Court in AIIMS
Students' Union vs AIIMS reported in (2002) SCC 428 also held that a
reasonable percentage of seats may be reserved for students in post
graduate medicine courses on the basis of institutional preference. But
this would violate the principle of merit as well equality of opportunity in
matters of education. The Supreme Court in Magan Mehrotra (supra)
while reiterating the principles laid down in the case of Dr. Pradeep Jain
(supra) held that it is permissible to have reservation of seats at post
graduate level on the basis of institutional preference. Referencing to the
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Constitution Bench judgment in Saurabh Chaudri (supra) learned
counsel argued that the Supreme Court in that case examined in great
detail the constitutional validity of institutional preference and has upheld
the same by observing that it does not violate the principles of equality
enshrined under Article 14 of the Constitution of India. Mr. Anoop Nair,
learned counsel for the Medial Council of India submitted that the
preference given for admission solely on the basis of domicile in the State
in the impugned rules is bad in law and cannot be supported being
constitutionally impermissible.
20. We have given our anxious consideration to the rival contentions of
the learned counsel for the parties and perused the material on record.
21. Even though Clause 9 (4) of MCI Postgraduate Medical Education
Regulations, 2000 provides that the reservation of seats in Medical
Colleges/institutions for respective categories shall be as per applicable
laws prevailing in States/Union Territories, but it is common ground
between the parties that admissions are required to be made on the basis
of common counseling with reference to Clause-9A of the said
Regulations, sub-clause-(3) of which provides that counseling for all
Postgraduate Courses in Medical Education Institutions in a State,
including Medical Educational Institutions established by the Central
Government, State Government University, Deemed University, Trust,
Society or a Company Minority Institutions/Corporations shall be
conducted by the State Government under the overall superintendence,
direction and control of the State Government. Obviously, this would also
include the Private Medical Colleges affiliated to Private Universities.
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Clause- 9(7) of the said Regulations provides that in non-Governmental
medical colleges/institutions, 50% of the total seats shall be filled by State
Government or the Authority appointed by them, and the remaining 50%
of the seats shall be filled by the concerned medical colleges/institutions
on the basis of the merit list prepared as per marks obtained in NEET, but
the provision stands eclipsed by Clause-9A which provides for common
counseling for 100% seats even of the private medical colleges. In
practice, therefore all the seats of private medical colleges are filled
through common counseling out of the common merit list prepared on the
basis of NEET. The primary question therefore would be whether under
the impugned provision the State is competent to give priority to the
students domiciled in the State of Madhya Pradesh including those who
have passed out MBBS examination from anywhere in the State of
Madhya Pradesh or would the provision for making such reservation or in
other words, for identifying the source of admission is beyond its
competence? The Constitutional Bench of the Supreme Court in Tamil
Nadu Medical Officers Association (supra) has authoritatively held that
the Union cannot with reference to its power under Entry 66 List I of the
7th Schedule of the Constitution provide for anything with respect to
reservation/percentage of reservation and/or even mode of admission in
the State quota and that this power is conferred upon the States under
Entry 25 List III of 7th Schedule. The State Government therefore has
power to make provision on mode of admissions, looking to the
requirements and/or need in the concerned State. The aforesaid judgment
was rendered in the context of reservation provided to in service candidate
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reiterating the law earlier laid down by the Supreme Court in K.
Duraiswami (supra), AIIMS Students Union (supra) and Gopal D.
Tirthani (supra) which acknowledged the competence of the State
Government to identify the source of admission for admission to post-
graduation medical study courses. The relevant question however would
still be as to what extent such a reservation or source of admission, can be
made in respect of the seats in postgraduate medical courses in the private
medical colleges? We may at this stage clarify that nature of provision
that has been made in Entry 3 & 4 of Schedule-I of the MCI Regulations
of 2000 cannot be stricto sensu described as an institutional preference as
according to the first part of the impugned Entry No.3 while giving
preference to a local resident of the State of Madhya Pradesh, within that
very close has provided relaxation in favour of those who have passed out
the MBBS/BDS examination from a medical/dental colleges situated
anywhere in the State. In other words, a candidate having passed out
MBBS/BDS examination from any college, whether the government or
private, would be entitled to benefit of this relaxation by putting him at
the same pedestal as that of a domicile candidate. In other words, a
candidate who has passed out MBBS Course from any Medical College in
the State of Madhya Pradesh need not be a permanent residence/domicile
of the State of Madhya Pradesh and may belong to some other state.
Moreover a candidate passing out MBBS examination from one college
may be admitted on the basis of impugned rule to PG Medical Course to
any other college, which need not to be affiliated to the same university.
The medical college from which a candidate has passed out MBBS
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examination may have been affiliated to one university, whereas such
candidate eventually succeeding in securing admission to PG Medical
Course in another medical college may be affiliated to a different
university. The concept of institutional preference/reservation is thus not
attracted in the present case.
22. In view of the peculiarity attached to the impugned Admission
Rules of 2018, though it cannot be said that this gives 100% reservation to
the candidate domiciled in the State of Madhya Pradesh or alongwith
them, those who have passed out MBBS examination from any
medical/dental college in the State of Madhya Pradesh, but as per the data
collated by the respondents themselves, it is evident that in practice, both
before and after the Rules of 2018 were enforced, majority seats are going
to MP domicile students and therefore, the question that is required to be
answered is as to what extent such preference on the basis of domicile can
be given and whether the limit of 50% propounded by the Supreme Court
in case of Dr.Pradeep Jain (supra) and in the subsequent judgments, for
institutional preference, should also apply to preference given on the basis
of domicile? This question directly fell for consideration of the Supreme
Court in case of Dr.Tanvi Behl (supra) in which the Court noted the
similar reservation/preference has been given in favour of domiciles by as
many as 13 states, details of which have been enumerated in Para 11 of
the report. The Supreme Court upon revisiting all the earlier judgments
touching upon this subject extensively deliberated upon the question
whether domicile/residence based reservation is entirely impermissible
and observed in Para 14 to 18 & 22 to 25 of the report as under:-
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"14. As noticed, the core question calling for
determination herein is as to whether providing for
domicile/residence-based reservation for admission to PG
Medical Courses is constitutionally invalid and is
impermissible. Several decisions of this Court have been
referred by the learned counsel for the respondents in
support of the impugned order of the High Court and in
support of the contention that such a prescription is
constitutionally invalid. In our view, the submissions on
invalidity of the domicile/residence based reservation in
relation to the State Quota seats and the assumption that
such a proposition is long back discarded (as per the
expression employed by the High Court) needs to be
examined by a Larger Bench of this Court in view of the
significance of the issue, which is of recurrence in every
academic year for one reason or another; and particularly
when varying views have been expressed by different
Benches, which need to be reconciled with the
observations made by the Constitution Bench of this
Court in Saurabh Chaudri's case. We may, therefore, refer
to the decision in Saurabh Chaudri in requisite details.
15. It could be profitably noticed that before the
pronouncement in Saurabh Chaudri by the Constitution
Bench, this Court had expressed desirability of merit-
based admissions to the Medical Courses; and multiple
vistas of such admission process were dealt with by this
Court in several decisions like those in Jagdish Saran, Dr.
Pradeep Jain as also in Magan Mehrotra. In fact,
reference to the Constitution Bench in Saurabh Chaudri
case had been in sequel to Magan Mehrotra case
inasmuch as a three-Judge Bench of this Court in Magan
Mehrotra had held that apart from institutional
preference, no other preference including reservation on
the basis of residence was envisaged in view of the
decision in Pradeep Jain. However, the notification
consequently issued by Delhi University for institutional
preference for admission to PG Medical Courses was
questioned by the appellants claiming themselves to be
the residents of Delhi. In this challenge; a Division Bench
of this Court referred the matter to a three-Judge Bench
having regard to the decision in Magan Mehrotra; and the
three-Judge Bench directed the matter to be placed before
a Bench of five Judges considering its importance. In this
backdrop, the Constitution Bench, dealing with the
reference in Saurabh Chaudri, indicated the two
questions being determined by it in the following:-
"2. The core question involved in these writ
petitions and appeal centres around the
constitutional validity of reservation whether based
on domicile or institution in the matter of
admission into postgraduate courses in
government-run medical colleges.
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*** ***
***
10. The question which was initially raised in the
writ petition was as to whether reservation made by
way of institutional preference is ultra vires
Articles 14 and 15 of the Constitution of India; but
during hearing a larger issue viz. as to whether any
reservation, be it on residence or institutional
preference, is constitutionally permissible, was
raised at the Bar."
15.1. The first question, as to whether reservation on the
basis of domicile is impermissible, was answered and
disposed of by the Constitution Bench in the following
passages:-
"29. The first question that arises for consideration
is, whether the reservation on the basis of domicile
is impermissible in terms of clause (1) of Article
15 of the Constitution of India. The term "place of
birth" occurs in clause (1) of Article 15 but not
"domicile". If a comparison is made
between Article 15(1) and Article 16(2) of the
Constitution of India, it would appear that whereas
the former refers to "place of birth" alone, the latter
refers to both "domicile" and "residence" apart
from place of birth. A distinction, therefore, has
been made by the makers of the Constitution
themselves to the effect that the expression "place
of birth" is not synonymous to the expression
"domicile" and they reflect two different concepts.
It may be true, as has been pointed out by Shri
Salve and pursued by Mr Nariman, that both the
expressions appeared to be synonymous to some of
the members of the Constituent Assembly but the
same, in our opinion, cannot be a guiding factor. In
D.P. Joshi case a Constitution Bench held so in no
uncertain terms.
30. This Bench is bound by the said decision.
31. In State of U.P. v. Pradip Tandon this Court
observed: (SCC p. 277, para 29)
"29. The reservation for rural areas cannot
be sustained on the ground that the rural
areas represent socially and educationally
backward classes of citizens. This
reservation appears to be made for the
majority population of the State. Eighty per
cent of the population of the State cannot be
a homogeneous class. Poverty in rural areas
cannot be the basis of classification to
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is found in all parts of India. In the
instructions for reservation of seats it is
provided that in the application form a
candidate for reserved seats from rural areas
must submit a certificate of the District
Magistrate of the district to which he
belonged that he was born in rural area and
had a permanent home there, and is residing
there or that he was born in India and his
parents and guardians are still living there
and earn their livelihood there. The incident
of birth in rural areas is made the basic
qualification. No reservation can be made
on the basis of place of birth, as this would
offend Article 15."
32. Answer to the said question must,
therefore, be rendered in the negative."
15.2. Thus, the answer by Constitution Bench to the
question as to whether domicile/residence-based
reservation is impermissible had been in a crisp and terse
negative. In other words, the answer was in the
affirmative on permissibility. For comprehension of the
basis of such answer by the Constitution Bench,
appropriate it would be to closely look at the two
decisions referred to in the aforesaid paragraphs 29 and
31 in Saurabh Chaudri.
15.3. In State of U.P. v. Pradip Tandon (referred to in the
above-quoted paragraph 31 of Saurabh Chaudri), the
question that arose for consideration before the three-
Judge Bench of this Court had been as to whether the
instructions framed by the State of Uttar Pradesh in
making reservation in favour of the candidates from rural
areas, hill areas and Uttarakhand for admission to Medical
Colleges were constitutionally valid. This Court did not
approve of the reservation for rural areas for the same had
been made only on the basis of the place of birth and
hence, was offending Article 15 of the Constitution.
However, in the said decision, the reservation made in
favour of the people in hill areas and Uttarakhand area
was upheld, for the same having been made for the
benefit of socially and educationally backward classes of
citizens, particularly when this Court found that the State
had established that the people in those areas were of
socially and educationally backward classes.
15.4. As noticed, in Saurabh Chaudri, after a short
reference to the decision in D.P.Joshi v. State of M.B. this
Court reiterated that the concept of "domicile" was not
equivalent to the concept of "place of birth"; and the
prohibition contained in Article 15(1) of the Constitution
of India relates to any discrimination only on the basis of
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the "place of birth". The said decision in D.P. Joshi was
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rendered by a Constitution Bench of this Court in a writ
petition under Article 32 of the Constitution of India that
was filed while questioning the stipulation regarding
capitation fees, as made by Mahatma Gandhi Medical
College at Indore, run by the State of Madhya Bharat. The
petitioner, who was a resident of Delhi and had been
admitted as a student in the said Medical College at
Indore, was called upon to pay a sum of Rs. 1500/- p.a. as
capitation fee in addition to the tuition fee and other
charges payable by the students of said college in general.
The petitioner's grievance had been that such rules
relating to the matter of fees, as in force in the college
concerned, were of discrimination between the students
who were residents of Madhya Bharat and those who
were not, inasmuch as the residents of other States were
required to pay such capitation fee in addition to the
tuition fee and charges payable by all the students; and
such a stipulation was offending Articles 14 and 15 of the
Constitution of India. The Constitution Bench, by 4:1
majority, rejected such contentions while pointing out the
significant distinction in the concepts of
"domicile/residence" and "place of birth" and after
finding nothing of discrimination in providing capitation
fees on a particular class of students and not others. The
rule in question was taken note of as under:
"4. ...."For all students who are 'bona fide
residents' of Madhya Bharat no capitation fee
should be charged. But for other non- Madhya
Bharat students the capitation fee should be
retained as at present at Rs. 1,300 for nominees and
at Rs. 1,500 for others"......
'Bona fide resident' for the purpose of this rule was
defined as :
"one who is -
(a) a citizen of Indian whose original domicile is in
Madhya Bharat, provided he has not acquired a
domicile elsewhere, or
(b) a citizen of India, whose original domicile is
not in Madhya Bharat but who has acquired a
domicile in Madhya Bharat and has resided there
for not less than 5 years at the date, on which he
applies for admission, or
(c) a person who migrated from Pakistan before
30-9-1948 and intends to reside in Madhya Bharat
permanently, or
(d) a person or class of persons or citizens of an
area or territory adjacent to Madhya Bharat or to
India in respect of whom or which a Declaration of
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Eligibility has been made by the Madhya Bharat
Government".
15.4.1. After extracting Article 15(1) of the Constitution
of India 12, the Constitution Bench expounded on the
difference in the concepts of "domicile/residence" and
"place of birth" in the following:-
"5....Residence and place of birth are two distinct
conceptions with different connotations both in law
and in fact, and when Article 15(1) prohibits
discrimination based on the place of birth, it cannot
be read as prohibiting discrimination based on
residence."
The Court again said:
"6... whether the expression used is "domicile of
origin" or "domicile of birth", the concept involved
in it is something different from what the words
"place of birth" signify. And if "domicile of birth"
and "place of birth" cannot be taken as
synonymous, then the prohibition enacted
in Article 15(1) against discrimination based on
place of birth cannot apply to a discrimination
based on domicile."
(emphasis supplied)
15.4.2. The Court further rejected the contention that
there could not be a domicile of Madhya Bharat and also
found force in the contention that the expression
"domicile" in the clauses concerned was essentially
referable to "residence". The Court said:
"10. Under the Constitution, the power to legislate
on succession, marriage and minority has been
conferred under Entry 5 in the Concurrent List on
both the Union and the State Legislatures, and it is
therefore quite conceivable that until the Center
intervenes and enacts a uniform code for the whole
of India, each state might have its own laws on
those subjects, and thus there could be different
domiciles for different States. We do not, therefore,
see any force in the contention that there cannot be
a domicile of Madhya Bharat under the
Constitution.
11. It was also urged on behalf of the respondent
that the word "domicile" in the rule might be
construed not in its technical legal sense, but in a
popular sense as meaning "residence", and the
following passage in Wharton's Law Lexicon, 14th
Edition, page 344 was quoted supporting such a
construction :
"By the term 'domicile', in its ordinary
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acceptation, is meant the place where a
person lives or has his home. In this sense
the place where a person has his actual
residence, inhabitancy, or commorancy, is
sometimes called his domicile".
In Susan McMullen v. Wadsworth: [1889] 14 A.C.
631, it was observed by the Judicial Committee
that-
"the word domicile in Article 63 (of the
Civil Code of Lower Canada) was used in
the sense of residence, and did not refer to
international domicile".
What has to be considered is whether in the present
context "domicile" was used in the sense of
residence. The rule requiring the payment of a
capitation fee and providing for exemption there
from refers only to bona fide residents within the
State. There is no reference to domicile in the rule
itself, but in the Explanation which follows, clauses
(a) and (b) refer to domicile, and they occur as part
of the definition of "bona fide resident". In Corpus
Juris Secundum, Volume 28, page 5, it is stated :
"The term 'bona fide residence' means the
residence with domiciliary intent".
There is therefore considerable force in the
contention of the respondent that when the rule-
making authorities referred to domicile in clauses
(a) and (b) they were thinking really of residence.
In this view also, the contention that the rule is
repugnant to Article 15(1) must fail."
15.4.3. The Court also rejected the contention that the
Rule imposing capitation fee was in contravention
of Article 14 in the following:
"14. It is next contended for the petitioner that the
imposition of capitation fee on some of the students
and not on others is discriminatory, and is in
contravention of Article 14 of the Constitution, and
therefore void. The impugned rule divides, as
already stated, self-nominees into two groups,
those who are bona fide residents of Madhya
Bharat and those who are not, and while it imposes
a capitation fee on the latter, it exempts the former
from the payment thereof. It thus proceeds on a
classification based on residence within the State,
and the only point for decision is whether the
ground of classification has a fair and substantial
relation to the purpose of the law, or whether it is
purely arbitrary and fanciful.
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15. The object of the classification underlying the
impugned rule was clearly to help to some extent
students who are residents of Madhya Bharat in the
prosecution of their studies, and it cannot be
disputed that it is quite a legitimate and laudable
objective for a State to encourage education within
its borders. Education is a State subject, and one of
the directive principles declared in Part IV of the
Constitution is that the State should make effective
provisions for education within the limits of its
economy. (Vide Article 41). The State has to
contribute for the upkeep and the running of its
educational institutions. We are in this petition
concerned with a Medical College, and it is well-
known that it requires considerable finance to
maintain such an institution. If the State has to
spend money on it, is it unreasonable that it should
so order the educational system that the advantage
of it would to some extent at least enure for the
benefit of the State? A concession given to the
residents of the State in the matter of fees is
obviously calculated to serve that end, as
presumably some of them might, after passing out
of the College, settle down as doctors and serve the
needs of the locality. The classification is thus
based on a ground which has a reasonable relation
to the subject-matter of the legislation, and is in
consequence not open to attack. It has been held
in The State of Punjab v. Ajaib Singh and another:
1953 S.C.R. 254 that a classification might validly
be made on a geographical basis. Such a
classification would be eminently just and
reasonable, where it relates to education which is
the concern primarily of the State. The contention,
therefore, that the rule imposing capitation fee is in
contravention of Article 14 must be rejected."
16. From the aforesaid, it is but clear that in Saurabh
Chaudri, the Constitution Bench found that the other
Constitution Bench in D.P. Joshi had rejected the
contention that no provision could be made on the basis
of domicile/residence in relation to students taken in the
medical colleges. In other words, in Saurabh Chaudri,
this Court relied upon the decision in D.P. Joshi while
holding that domicile/residence-based reservation was not
impermissible. Standing this exposition by the
Constitution Bench of this Court, it is difficult to conclude
that domicile/residence-based reservation/preference is a
concept totally overthrown and jettisoned.
17. In the impugned order, it was noticed by the High
Court that the aforementioned paragraphs 29 to 32 in
Saurabh Chaudri were sought to be relied upon by the
contesting respondents (some of them being the
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appellants herein) to contend that preference on the basis
of domicile is permissible and does not offend the
constitutional scheme of things. However, after noticing
such contention, the High Court switched over to the
proposition of institutional preference and extensively
reproduced the passages from its decision in Chahat
Bhatia vs. Govt. Medical College and Hospital, 2018
SCC Online P & H 6596. The High Court thereafter
referred to the stipulations in the questioned Clause 2-B
of the prospectus and found basic flaws and shortcomings
in the same. Having said so, the High Court proceeded to
observe that even if such a reservation (i.e.,
domicile/residence- based reservation) was possible, it
would have no hesitation in saying that the questioned
Clause in the prospectus was unsustainable. Thereafter,
the High Court observed that this Court in Saurabh
Chaudri and Pradeep Jain has clearly laid down that
preference on the basis of residence is to be deprecated in
the matters of admission in PG Medical Courses; and
reproduced paragraph 46 as also paragraph 1 in Saurabh
Chaudri while observing that the conclusion in Saurabh
Chaudri was the same as the one accorded in Pradeep
Jain. In the process of such discussion and reasoning, the
High Court has not even touched the contention that in
view of the aforesaid answer by the Constitution Bench,
preference on the basis of domicile was not entirely
impermissible; and seems to have clearly missed out the
import of the other answer by the Constitution Bench in
Saurabh Chaudri, as occurring in the above-quoted
paragraphs 29 to 32.
18. It appears that for the Constitution Bench in
Saurabh Chaudri having largely approved the observation
in Dr. Pradeep Jain's case in relation to the question of
institutional preference, the High Court has assumed that
all the observations in Dr. Pradeep Jain stood ipso facto
approved. True it is that in Dr. Pradeep Jain, a three-
Judge Bench of this Court stated its total disapproval of
domicile/residence-based reservation in PG Medical
Courses but such observations in Pradeep Jain, when
read with reference to aforesaid paras 29 to 32 of the
decision in Saurabh Chaudri, the inevitable result is that
domicile/residence-based reservation has not been taken
as an anathema altogether to these admission process.
*** **** *** ***
22. On the other side of spectrum, we may also observe
that the generalised and blanket prohibition on
domicile/residence-based reservation may not be work-
able in relation to the State Quota seats of PG Medical
Courses. As noticed, the fundamental fact remains that all
the admissions to the Medical Courses, be it All India
Quota or be it the State Quota, are made on the basis of
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ranks obtained in NEET and not otherwise. 50% of the
seats are assigned to the States/Union Territories as being
the State Quota seats. As noticed, different States and
Union Territories have made different provisions for fill-
ing up these State Quota seats. The institutional prefer-
ence, that has also been held permissible in the decisions
of this Court, obviously comes into play in relation to
such State Quota seats. However, even when institutional
preference carries a major or prominent role in relation to
such State Quota seats, varying provisions have also been
made by different States/UTs with reference to
domicile/residence, seemingly for the purpose of ensur-
ing that the candidates belonging to a particular State/UT
would be available for rendering service in that State/UT
after post-graduation.
22.1. The peculiar feature in relation to the State Quota
seats is that if some provision as regards domicile/resi-
dence-based reservation is not made, the only other
method of filling up these State Quota seats would be by
way of institutional preference. This would effectively re-
sult in entire of the State Quota seats going to institutional
preference alone. Now, if the entire State Quota seats are
provided for institutional preference alone, the conse-
quence would be that only the candidates of the medical
institutions in the State/UT would be filling up the State
Quota seats; and such a consequence may not be permis-
sible at all.
22.2. Moreover, the unique situation in relation to UT
Chandigarh is that it has only one Medical College. Thus,
the dispensation in question, as provided by UT Chandi-
garh and its Medical College and as construed by High
Court, if given effect to, would inevitably result in corner-
ing all the State Quota PG seats by the students of that
solitary Medical College alone. In the alternative, if only
50% of State Quota seats are to be given to that Medical
College, the remaining 50% of State Quota seats would
again fall in the pool of All India Quota because there is
no other mode of filling up these seats. We find it difficult
if either of such consequences could be countenanced.
22.3. It is also noteworthy that even as per the instructions
issued by the examining body, the State Quota seats could
be filled up by the States, inter alia, with reference to the
domicile. In the given scenario, it is again difficult to ac-
cept that domicile/residence-based reservation, as pro-
vided for filling up of the State Quota open seats, be held
invalid altogether.
23. Before summing up and making reference, we may
observe in the passing that in regard to the case at hand,
the High Court has indicated several reasons for its disap-
proval of the stipulations made in impugned Clause 2B of
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even if domicile/residence-based reservation in admission
to PG Medical Courses is held permissible, the mode and
modalities for its application would still require further
examination because it remains questionable if such reser-
vation could be applied by way of such stipulations, as
made in the impugned Clause 2B of the prospectus in
question. Having said so and for the order proposed to be
passed in these matters, we do not find it necessary to en-
ter into microscopic analysis of the sub-clauses pertaining
to domicile/residence-based reservation as occurring in
the impugned Clause 2B of the prospectus in question and
would leave such questions open to be determined on the
basis of answers to the root questions by the larger Bench.
Summation and Reference
24. For what has been discussed hereinabove, in our view,
the question as to whether providing for domicile/resi-
dence-based reservation, particularly in admission to PG
Medical Courses, is constitutionally permissible as also
its corollaries, including the mode and modalities of its
implementation (if permissible), more particularly in rela-
tion to the State/UT having only one Medical College,
need to be examined by a larger Bench of this Court for
authoritative pronouncement.
25. Accordingly we would propose the following ques-
tions to be examined by a Larger Bench of this Court :
25.1. As to whether providing for domicile/residence-
based reservation in admission to "PG Medical Courses"
within the State Quota is constitutionally invalid and is
impermissible?
25.2. (a) If answer to the first question is in the negative
and if domicile/residence-based reservation in admission
to "PG Medical Courses" is permissible, what should be
the extent and manner of providing such domicile/resi-
dence-based reservation for admission to "PG Medical
Courses" within the State Quota seats?
25.2. (b) Again, if domicile/residence-based reservation in
admission to "PG Medical Courses" is permissible, con-
sidering that all the admissions are to be based on the
merit and rank obtained in NEET, what should be the
modality of providing such domicile/residence-based
reservation in relation to the State/UT having only one
Medical College?
25.3. If answer to the first question is in the affirmative
and if domicile/residence-based reservation in admission
to "PG Medical Courses" is impermissible, as to how the
State Quota seats, other than the permissible institutional
preference seats, are to be filled up?"
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23. In view of the aforementioned conclusions arrived by the Supreme
Court upon consideration of all the leading judgments on the subject
including Constitution Bench Judgments in Saurabh Chaudri (supra)
and D.P. Joshi (Supra) and three-judge bench judgment in Pradip
Tandan (supra), the Supreme Court has referred to the Larger Bench the
question whether providing for domicile/residence-based reservation, in
admission to PG Medical Courses within the state quota is
constitutionally invalid or impermissible and if permissible, what should
be the extent and manner of providing such domicile/residence-based
reservation within the state quota seats and what should be the modalities
for providing such domicile/residence-based reservation in the State? If
the answer to the first question is that the domicile/residence-based
reservation is impermissible, as to how the State quota seats, other than
the permissible institutional preference seats, are to be filled?
24. Contention that the decision in Dr.Tanvi Behl (supra) does not
apply for admission to the PG Medical study courses in private medical
colleges as it only deals with the State quota seats in government medical
colleges cannot be countenanced for the simple reason that neither the
MCI Postgraduate Regulations, 2000 nor the Admission Rules of 2018
make any distinction between the seats of the State quota in government
medical colleges and the seats in the private medical colleges. No doubt,
unlike the government medical colleges, private medical colleges are not
required to part with 50% of the seats in favour of all India quota, but that
by itself does not give any authority to private medical colleges to fill up
those seats on their own. All the seats even in private medical colleges are
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required to be filled up as per the common counseling with reference to
Clause 9A(3) of the MCI Regulations, 2000 in the same manner in which
50% seats of the State quota in the government colleges are filled, on the
basis of common counseling under the overall superintendence, direction
and control of the State Government.
25. Decision of the question whether in view of Section 8 of the Act of
2007, the State Government is empowered to only provide reservation in
favour of SC/ST/OBC and further whether the State can identify the
source of admission from amongst candidates domiciled in the State of
Madhya Pradesh, as a separate class, has to await the answer of reference
by the Larger Bench in Dr.Tanvi Behl (supra), in which the Supreme
Court after considering the Constitution Bench judgments in Saurabh
Chaudari (supra) and D.P. Joshi (Supra) and three-judge bench
judgment in Pradip Tandon (supra) held that "domicile/residence-based
reservation is not impermissible" and that "domicile/residence-based
reservation has not been taken as an anathema altogether to these
admission processes." The Supreme Court has therein distinguished the
judgment in Nikhil Himthani (supra), Vishal Goyal (supra) and Kriti
Lakhina (supra) relied upon by the learned counsel for the petitioners
and held that "it is difficult to cull out that domiciles/residence-based
reservation is altogether disapproved." It was however held that "the
manner of providing such reservation would always remain subject to
requirement of rationality and reasonableness." Considering the fact that
similar preference on the basis of domicile for admission to PG medical
study courses has been given in several other States and in State of
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Madhya Pradesh also, it has been given quite for some time, propriety
demands that the question as to what extent preference on the basis of
residence/domicile can be given, having already been referred to the
Larger Bench of Supreme Court in Dr.Tanvi Behl (supra), need not be
dilated further in the present proceedings, to await the authoritative
pronouncement of the Supreme Court when it answers the reference,
particularly when the process of admission in the current academic year
has already come to an advance stage. In view of reference on the
question of law involved in the present matter having already been
referred to the Larger Bench of the Supreme Court in Dr. Tanvi Behl
(supra), this Court does not for the time being deem it appropriate to
interfere with the impugned provision. It however goes without saying
that the decision of the Supreme Court in Dr. Tanvi Behl (supra) on the
questions referred to the Larger Bench shall in any case bind the parties
herein.
26. In the light of the view that we have taken of the matter, the present
writ petition is disposed of.
(MOHAMMAD RAFIQ) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
PSM/SKM/[email protected]
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