ORDER
Ashok Bhushan, J.
1. Heard Sri Dinesh Dwivedi, senior Advocate assisted by Sri S.D. Kautilya for the petitioner, Sri Ashutosh Srivastava for respondent No. 2 and learned standing counsel,
2. Counsels for both the parties have prayed that the writ petition itself be finally decided, counter-affidavit has been filed by respondent No. 2 to which rejoinder affidavit has been filed by the petitioner. With the consent of the parties, the writ petition is being finally decided.
3. By this writ petition, the petitioner has prayed for writ of mandamus directing the respondents to accept the petitioner's admission form for U.P. Post Graduate Medical Entrance Examination, 2001 and permit the petitioner to compete at par with all other students who have passed their MBBS examination from State Medical Colleges. Another prayer has been made praying for a direction in the nature of mandamus commanding the respondents to permit the petitioner to compete for admission in U.P. Post Graduate Medical Entrances Examination 2001 on the ground that he is ward of Government servant of State of Uttar Pradesh. Prayer for a direction in the nature of mandamus commanding respondent No. 4 to permit the petitioner to appear in U.P. Post Graduate Medical Entrance Examination, 2002 and thereafter declare his (sic) has also been permitted to be added. The petitioner has also prayed for declaring conditions A(i), A(ii) ultra virus and unconstitutional so far as it restricts the entertainment of the application of the petitioner solely on the ground that he has passed his MBBS examination from, the medical college other than those referred to in condition No. A(i). Prayer for quashing Clause 9(b) of Government order dated 9th October, 1990 has also been made.
4. Facts of the case which emerge from the pleadings of the parties are; petitioner was selected in the year 1991 for admissionin MBBS in Armed Forces Medical College. Pune, Petitioner passed his MBBS in the year 1996. Petitioner's father and mother both are resident of Uttar Pradesh since birth and are in U.P. Medical Health and Family Welfare Services. Petitioner is aggrieved by conditions A(i) and A(ii) as laid down in the information brochure of U.P. Post Graduate Medical Entrance Examination, 2001. Under the aforesaid condition the candidates who have passed MBBS/BDS from the Medical Colleges of Agra, Allahabad, Gorakhpur, Jhansi, Kanpur, Lucknow and Meerut and the Dental Faculty of K. G. Medical College, Lucknow are eligible to appear for admission under 75% seats reserved for institutional post graduates. Condition A(ii) further provides that candidates who are domicile of U.P. and have passed MBBS from Medical/Dental Colleges of other States and were admitted on 15% All India seats through All India Premedical-Predental Examination conducted by eligible Dental Board of Secondary Education are also eligible to appear in this examination. Petitioner since was fulfilling the aforesaid conditions, was not (sic) nor was permitted to appear against 75% seats subject to result of this writ petition. Petitioner has also challenged Clause 9(b) of the Government order dated 8th October, 1990 which provided that candidates may only appear in the entrance examination who is MBBS graduate from any University or Medical College of Uttar Pradesh. Petitioner also appeared in U.P. Post Graduate Medical Entrance Examination, 2002 under the interim order of this Court subject to result of the writ petition. The result of the petitioner of 2002 examination was directed to be declared provisionally but it was directed that he will not be offered seat nor permitted to join the post until further orders of this Court. In view of the above facts, the petitioner has prayed for grant of several reliefs in the writ petition as mentioned above.
5. Admission to post graduate courses is governed by conditions as laid down in the information brochures published by the University conducting the examination every year as per orders of the State Government. Entrance examination by the State Universities is conducted for 75% seats. Against 75% seats, the medical graduates who have passed MBBS/BDS from any of the Medical Colleges of the State are eligible. Furtherthose medical graduates who were selected for admission under 15% All India seats and have passed their MBBS from any Medical College are also eligible to compete against 75% quota. The condition under which the entrance examination is being conducted does not permit the petitioner to compete against 75% above seats. As noted above, the challenge of the petitioner in this writ petition is to the aforesaid conditions A(i) and A(ii). The petitioner has also challenged Clause 9(b) of the Government order dated 9th October, 1990. Petitioner's case in the writ petition is that he is also entitled to compete against 75% seats for the medical graduates who have passed from State of U.P. It is pleaded by the petitioner that denial of the petitioner to appear in the examination is arbitrary and hit by Articles 14 and 15 of the Constitution of India. His case is that the reservation for institution candidates result in sacrificing the merit and depriving meritorious candidates of getting their choice. The petitioner has placed reliance on several pronouncements of the Apex Court. Reference of the Apex Court judgment in Dr. Pradeep Jain v. Union of India, 1984 (3) SCC 654 : (AIR 1984 SC 1420) has been made and it is contended that the Apex Court has laid down that reservation on the basis of Institutional preference in post graduate post should in any case not exceed 50% of total number of open seats and outer limit will be subject to revision towards lower side by Indian Medical Council. It has been pleaded by the petitioner's counsel that petitioner having passed MBBS on the basis of (sic) Competition in Armed Forces Medical College is entitled to appear against 75% seats in the State of Uttar Pradesh since he is domicile of Uttar Pradesh. It has further been submitted that petitioner is at disadvantage since he is not able to appear in post graduate courses in State of Maharashtra from where he has passed MBBS on account of requirement of domicile there. To overcome the aforesaid advantage, he is entitled to participate in entrance examination of U.P. Post Graduate Medical Entrance Examination conducted by U.P. for 75% seats. On the basis of above pleadings and conditions, the petitioner has prayed for grant of reliefs as mentioned above.
6. Sri Dinesh Dwivedi, Senior Advocate appearing for the petitioner, in support of the writ petition, has made following sub-missions :--
(1) Reservation of 75% seats in postgraduate courses for medical graduates having passed from Medical Colleges of State of U.P. is arbitrary, discriminatory and cannot be justified under Articles 14 and 15 of the Constitution of India.
(2) Apex Court in Dr. Pradeep Jain's case (supra) approved institutional preference in the circumstances existing then. After lapse of 18 years institutional preference cannot be continued. Further institutional reservation has been declared to be violative of the Constitution by Apex Court in AIIMS Student's Union v. AIIMS 2002 (1) SCC 428. In view of the decision of Apex Court in India's Sauhaney v. Union of India 1992 Supp (3) SCC 217 no reservation is permissible in post graduate medical courses.
(3) Admission to medical courses are governed by Section 28(5) of U.P. State Universities Act, 1973 and no other kind of reservation can be provided apart from one provided in Section 28(5). Providing reservation of 75% seats for the medical graduates belonging to Medical Colleges of the State of U.P. is contrary to Section 28(5) and is liable to be struck down on that ground also. By making one category of reservation i.e. reservation provided in U.P. Act No. 4 of 1994 all other categories of reservation have been excluded by Section 28(5) of U.P. State Universities Act, 1973.
(4) Medical Council of India under the Indian Medical Council Act, 1956 is authority competent to make regulation for governing regulation for prescribing standard of Post Graduate Medical Education and it having framed regulation, namely, the Post Graduate Medical Education Regulation. 2000 and having prescribed the criteria of selection strictly on the basis of merit, the reservation of 75% seats for institutional candidates cannot be continued and the conditions laid down for entrance examination are contrary to the aforesaid regulations.
(5) Lastly counsel for the petitioner submitted that case of the petitioner is covered by the judgment of the Apex Court in Dr. Parag Gupta v. University of Delhi 2000 (5) SCC 684 : AIR 2000 SC 2319).
7. The counsel for the petitioner has placed reliance on several judgments of the Apex Court in support of his above submissions. The decisions referred and relied by counsel for the petitioner will be considered while considering each of the submissions,
8. Counsel for the respondents in reply has submitted that conditions laid down for U.P. Post Graduate Medical Entrance Examination, 2001 and 2002 are in accordance with the scheme framed by the Apex Court itself. Counsel for the respondents further submitted that 75% seats are being filled up by institutional conditions in view of the scheme approved by the Apex Court in Dr. Dinesh Kumar v. Moti Lal Nehru Medical College, Allahabad, 1986 (3) SCC 727 : (AIR 1986 SC 1877). The counsel for the respondents submitted that petitioner having not passed his MBBS under 15% All India quota, is not entitled to compete against the 75% seats. It is submitted that petitioner is free to compete against 25% seats which are open to medical graduates passed from any Medical College in the country. The counsel for the respondents submitted that petitioner's case is covered by judgments of the Apex Court in State of U.P. v. Vineet Singh 2000 (7) SCC 262 : (AIR 2000 SC 2319) and Abhinav Aggarwal v. Union of India 2001 (3) SCC 425 : (AIR 2001 SC 961). The counsel for the respondents has also placed reliance on some unreported judgment of this Court. According to him, this Court has rejected similar writ petitions. He has further submitted that Medical Council of India in its 2000 Regulations has not laid down any prohibition for giving Institutional preference nor any provision in the Regulation covers 75% institutional preference granted by the State Government.
9. Before proceeding to consider the submissions of counsel for the parties, it is useful to look into certain provisions of India Medical Council Act, 1956 and the provisions of U.P. State Universities Act, 1973 and relevant constitutional entries regarding power of legislation on the subject The Indian Medical Council Act, 1956 was enacted to provide for reconstitution of the Medical Council of India and the maintenance of the Medical Register for India and for matters connected therewith. Section 20 provides that council may prescribe the standards of post-graduate Medical Education for the guidance of Universities. Section 33 provides that Council may with the previous sanction of the Central Government, make regulations generally to carry out the purposesof this Act. Entry 66 of List-1 in 7 Schedule to the Constitution provides :--
'66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.'
By 42nd Constitution amendment Entry 11 in List II was deleted and Entry 25 in List III was substituted as under :--
'25. Education, including technical education of medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List-I, vocational and technical training of labour.'
10. The U.P. State Universities Act, 1973 was enacted to amend and consolidate the law relating to certain Universities, Section 28 of the Act provided for admission Committee. Section 28(5) was substituted by U.P. Act No. 15 of 1980 in following manner :--
'(5). Notwithstanding anything contained in any other provisions of this Act, admission to medical and Engineering Colleges and to courses of instruction for degrees in education or Ayurvedic and Unani systems of medicine (Including the number of students to be admitted), shall be regulated by such orders (which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may, by notification, made in that behalf:
Provided that no order regulating admissions under this sub-section shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice.'
11. The aforesaid provisions of Sub-section (8) that admission to medical colleges shall be regulated by such order as State Government may by notification make in that behalf. Thus pertaining to admission to Medical Colleges, State Government was empowered to regulate the said admissions by such orders as State Government may provide by notification. Section 28(5) was again amended by U.P. Act No. 20 of 1994 with effect from 15th July, 1994. Amended Sub-section (5) is extracted below :--
'(5) Notwithstanding anything contained in any other provision of this Act.--
(a) reservation of seats for admission in any course of study in University. Institute, constituent college, affiliated college or associated college for the students belongingto the Scheduled Castes, Scheduled Tribes and other backward classes of citizens may be made and regulated by such orders as the State Government may. by notification, make in that behalf.
Provided that reservation under this clause shall not exceed fifty per cent of the total number of seats in any course of study :
Provided further that reservation under this clause shall not apply in the case of an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution.
Provided also that the reservation under this clause shall not apply to the category of other backward classes as sections specified in Schedule II to the Uttar Pradesh Public Services (Reservation for Schedule Castes, Scheduled Tribes and other Backward Classes) Act, 1994.
(b) admission to Medical and Engineer Colleges and to course of instruction for degrees in education and Ayurvedic or Unani systems of medicine (including the number of students to be admitted), shall subject to Clause (a), be regulated by such orders (which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may by notification, make in that behalf:
Provided that no order regulating admission under this clause shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice:
(c) in making an order under Clause (a), the State Government may direct that any person who wilfully acts in a manner intended to contravene, or defect the purposes of the order shall be punishable with imprisonment for a term not exceeding three months or with fine not exceeding one thousand rupees, or with both, as may be specified in the order.'
12. The State Government has issued a notification dated 9th October, 1990 in exercise of powers under Sub-section (5) of Section 28 of U.P. State Universities Act and all other powers enabling it. Clause (a) of the Government order provided :--
'(9). The essential qualifications of a candidate for residency admission shall be as under :
(a) the candidates who have passed the MBBS examination and have completed the rotating internship training and have been permanently registered by the Medical Council of India or the State Medical Council, shall only be eligible for admission. In the Competitive Entrance Examination such candidates may provisionally appear who have passed the MBBS examination. But they shall not be admitted to post graduate diploma or degree course. If they fail to complete the internship training and get the registration from Medical Council of India or State Medical Council before the beginning of the said course (academic session)
(b) such candidate may only appear in the entrance examination who is a MBBS graduate from any University or Medical College of Uttar Pradesh.
(c) For appearing in the said entrance examination no restriction such as the limit of minimum marks (percentagewise) in MBBS examination or the limit of maximum failures (supplementarywise or attempt wise MBBS examination shall be applicable.
13. The conditions for Post Graduate Entrance Examination have been laid down by the State Government which are under challenge in this writ petition.
14. The first and second submission of counsel for the petitioner being inter-related are taken together. Admission to Medical Colleges throughout in the country in graduate and post graduate courses have been subject to several litigations from time to time. The question of reservation of seats in Medical Colleges on different criteria and basis have engaged attention of Apex Court in several decisions. In AIR 1963 SC 649: M.R. Balaji v. State of Mysore the validity of the order passed by State of Mysore under Article 15(4) of the Constitution reserving 68% of the seats available for admission to the Engineering and Medical Colleges was challenged. The Apex Court upheld the challenge and held that reservation of 68% is inconsistent with Article 15(4) of the Constitution. The Apex Court held that generally speaking in a broad way a special provision should be less than 50%. In Dr. Jagdish Saran v. Union of India 1980 (2) SCC 768 : (AIR 1980 SC 820) challenge was made to the admission policy in post graduate course of Delhi University which provided that 70% of the seat at post graduate level will be for DelhiGraduates (who has taken their MBBS degree from the University of Delhi). It was contended by the Apex Court that 70% seats have been reserved for graduates of Delhi University since doors are closed for Delhi Graduates in other Universities of the country. The Apex Court held that institutional continuity of reservation justifies some measure of reservation but it may become ultra virus if recklessly resorted to. In paragraphs 49 and 50 of the aforesaid judgment it was held (at page 835 of AIR),
'49. We recognise that institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules, until revised by competent authority or struck down judicially, will rule the roast. That is why we have to concede that until the signpost of 'no admission for outsiders' is removed from other universities and some fair percentage of seats in other universities if left for open competition the Delhi students cannot be made martyrs of the Constitution.
50. Even so, 'reservation' must be administered in moderation, if it is to be constitutional. Some central technical institutions like the All India Institute of Medical Sciences, Delhi and Chandigarh and the Pondicherry Medical College have a much smaller fraction. Their circumstances may be different and we do not have the full facts, neither side having furnished more than fragments. Judicial surmise is too weak to be of decisional certainty. For reasons we have assigned 70% plus is too high at the post graduate level in the half proved circumstances. But we stop short of invalidating the rule because the facts are imperfect, the course has already started and Court must act only on sure ground, especially when matters of policy, socio educational investigation and expert evaluation of variables are involved, Judges should not rush in where specialists fear to tread. We spare the impugned regulation even though we are, prima facie, sceptical, about the vires thereof. To doubt is not enough to demolish when fuller facts are placed, the Court will go into this question more confidently.'
15. After the judgment in Jagdish Saran's case (supra) in Dr. Pradeep Jain's case (supra), three Judge Bench had considered elaborately the question of admission to medical colleges, reservations of seats forresidents of the State or students of the same University. While dealing with admission to post graduates courses, in paragraph 22 of the judgment, it was laid down by the Apex Court :--
'22. ...............................................................We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD and the like are concerned it would eminently desirable not to provide for any reservation based in residence requirement within the State or on the institutional preference. But having regard to broader 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 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 on the basis of institutional preference should not in any event exceed 50% of the total number open seats available for admission to the post graduate course. This outer limit which we are fixing will also be is subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be grant purely on merit on all India basis.'
With regard to post graduate courses institutional preference in the sense that students who have passed MBBS course from a Medical College or University was upheld but it was provided that institutional preference should not in any event exceed 50% of total number of vacant seats.
16. After the aforesaid judgment, the matter was again taken up by Apex Courtin Dr. Dinesh Kumar's case (supra). In the said case, the Apex Court issued directions to the Government of India for considering the scheme prepared by the Medical Council of India, Meeting of State Governments. Dean of Medical Colleges and some other authorities took place in which various objections were raised to the scheme formulated by Medical Council of India. The Apex Court after considering the objections raised by the State Governments and after considering the view of Government of India directed that instead of making reservation on All India basis of 50% of open seats after taking into account reservation validly made not less than 25% of total number of seat shall be made available for being filled on the basis of All India Entrance Examination. The Apex Court held in Paragraph 5.
'5............................................................ We therefore, agree with the Government of India that the formula adopted by us in our main judgment dated June 22, 1984 for determining the number of seats which should be made available for admission on the basis of All India Entrance Examination should be changed. We would direct, in accordance with the suggestion made in the scheme by the Government of India, that not less than 15 per cent of the total number of seats in each medical college or institution, without taking into account any reservations validly made, shall be filled on the basis of All India Entrance Examination. This new formula is in our opinion fair and just and brings about real equality of opportunity in admissions to the MBBS/BDS course without placing the students in one State in an advantageous or disadvantageous position as compared to the students in another State. The same formula must apply in regard to admissions to the post graduate courses and instead of making available for admission on All India basis 50 per cent of the open seats after taking into account reservations validly made, we would direct that no less than 25 per cent of the total number of seats without taking into account any reservations, shall be made available for being filled on the basis of All India Entrance Examination. This suggestion of the Government of India deserves to be accepted and the objection to it must be overruled.'
In view of the aforesaid directions of the Apex Court, the State of U.P. has fixed itscriteria for making available 25% of total number of seats for All India Entrance Examination and rest of 75% seats are being filled up from amongst the medical graduates who have passed out from medical colleges of the State of U.P. The Government order dated 9th October, 1990 refers to judgment of Supreme Court while issuing the aforesaid order. From the above, it is clear that prescription of 75% seats for students of medical colleges of the State have been made in pursuance of the direction of the Apex Court.
17. The submission of counsel for the petitioner is that Apex Court in Pradeep Jain's case (supra) has upheld the institutional preference only to the extent of 50% that too for the time being. The counsel for the petitioner contended that Apex Court itself has provided in the said judgment that outer limit which has been fixed by the Apex Court will be subject to revision on the lower side by Indian Medical Council in the same manner as directed by the Apex Court in case of admission to MBBS course. The contention is that circumstances which were prevailing in 1984 cannot be presumed to be still continuing and instead of lowering the institutional preference, it has been further increased. Reliance has been placed by counsel for the petitioner on the judgment of the Apex Court in Indira Sawhney's case (supra). Referring to paragraphs 838 and 839, the counsel for the petitioner contended that it has been held that in specialities and supper specialities in medicine merit alone count. Much emphasis has been laid down by the counsel for the petitioner on the judgment of the Apex Court in AIIMS's case (supra). It is clear from the pronouncement of the Apex Court in Dr. Pradeep Jain's case (supra) that that Apex Court observed that institutional preference for post graduate courses be not more than 50%. However, Apex Court itself taking into consideration the pronouncement in Dr. Pradeep Jain's case (supra) has changed the criteria in Dr. Dinesh Kumar's case (supra). In Dr. Dinesh Kumar's case (supra) it was provided that not less than 25% seats for post graduate courses be kept for All India Entrance Examination. In view of this, no exception can be taken to the conditions A(i) and A(ii), of U.P. Post Graduate Medical Entrance Examination, 2001. The said condition is in accord with directions of the Apex Court in Dr. Dinesh Kumar's case (supra) and cannot be faulted. With regard to paragraphs838 and 839 in Indira Sawhney's case (supra), it is to be noted that after noting specialities and super specialities in medicine in paragraph 838, the Apex Court laid down that reservation may not be advisable in super specialities in medicine. Paragraph 839 of the Judgment in Indira Sawhney's case (supra) is extracted below :--
'839. As a matter of fact, the impugned Memorandum dated August 13, 1990 applies the rule of reservation to 'civil posts and services under the Government of India' only which means that defence forces are excluded from the operation of the rule of reservation though it may yet apply to civil posts in defence services. Be that as it may, we are of he opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are; (1) Defence Services including all technical posts therein but excluding civil posts (2) All Technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defence equipment. (3) Teaching posts of professors -- and above, if any (4) Posts in super specialities in Medicine, Engineering and other scientific and technical subjects. (5) posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. It is for the Government of India to consider and specify the service and posts to which the rule of reservation shall not apply but on the account the implementation of the impugned Office Memorandum dated August 13, 1990 cannot be stayed or withheld.'
18. After the aforesaid judgment in Indira Sawhneys case (supra), the Apex Court had occasion to consider rules of admission in post graduate courses with regard to State of U.P. in Abhinav Aggarwal's case (supra). No exception was taken by the Apex Court in the aforesaid judgment to the scheme of admission made by the State of U.P. and Delhi State. Learned single Judge of this Court in Writ Petition No. 47634 of 2000 (Dr. Amit Kumar Srivastava v. State of U.P.) had occasion to consider the grievance of a similarly situated candidate who wanted to appear in the U.P. Post Graduate Medical Entrance Examination, 2001 although he had passed graduation from Medical College ofState of Karnataka. Learned single Judge dismissed the writ petition vide its judgment dated 16-11-2000. Special Appeal No. 790 of 2000 was filed against the aforesaid judgment which was dismissed on 15-12-2000. To the same effect there is another, judgment of learned single Judge in Writ Petition No. 3115 of 2002 (Dr. Manoj Narayan v. State of U.P.) dated 23rd January, 2002 against which special appeal was dismissed by the Division Bench on 18th January, 2002 being Special Appeal No. 91 of 2002 (Dr. Manoj Narayan v. State of U.P.). The Division Bench relying on judgments of the Apex Court in Dr. Parag Gupta v. University of Delhi 2000 (5) SCC 684 : (AIR 2003 SC 2319) and State of U.P. v. Vineet Singh 2000 (7) SCC 262 : (AIR 2000 SC 2766) dismissed the appeal. The Division Bench in its judgment held,
'The main contention of the writ petitioner is based on Clause (ii) of the Information Brochure, which is set out herein below :
'Candidates who are domicile of U.P. and have passed MBBS/BDS from Medical/Dental colleges of other States and were admitted on 15% All India seats through All India Premedical/Predental Examination conducted by Central Board or Secondary Education are eligible to appear in this examination.' However, counsel for the appellant-petitioner has strongly urged that admittedly, the petitioner is domicile of State pf U.P. and there was no scope for him to appear in the examination at 15% quota, since that started from the year 1988-89 and he belongs to 1984 Batch. That question in fact has been clarified by the Supreme Court in the Case of State of U.P. v. Vineet Singh (2000) 7 SCC 262 : (AIR 2000 SC 2766). In paragraph 4 of the said judgment the Supreme Court considering the said aspect of the matter observed as follows at page 276 ; of AIR :
'4. The general direction given by the High Court following the judgment of this Court in Dr. Parag Gupta case in respect of all petitioners without examination their cases whether they fell within 15% All India quota and who had been selected under 15% All India quota and migrated to other States or not, would not be appropriate. The order of the High Court, therefore, stands modified by confining its order only to fresh students who were covered by Dr. Parag Gupta case that is such students who had migratedto other States/Universities under 15% all India quota and who were desirous of pursuing studies in their home States and not to every student who has gone out of his home State and desires to return to his home State. In respect of such other students the relief granted by the High Court should not apply.' In our view learned single Judge has very correctly appreciated the question involved and deals with the matter in appropriate manner referring to the aforesaid decision of Supreme Court, wherein Dr. Parag Gupta case was clarified by the Supreme Court. In view of the aforesaid facts we are of the view that the judgment and order rendered by the learned single Judge does not call for any interference in the matter.'
In view of the aforesaid, it cannot be said that Conditions A(i) and A(ii) of the conditions are illegal.
19. The submission of counsel for the petitioner that what was said in Dr. Pardeep Jain's case (supra) in 1984 cannot be held in present day situation also need to be considered. It is true that in Dr. Pradeep Jain's case (supra) the Apex Court observed that prescription of 50% seat for institutional candidates has to be revised towards lower side. Reliance has been placed by the petitioner on AIIMS's case (supra) in which the Apex Court declared institutional reservation for AIIMS candidates as ultra vires and provided that by way of institutional preference the institutional candidates be preferred for admission against 25% seats available to open category. It was held by the Apex Court in paragraph 59 of the said judgment :--
'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 familarity with an educational environment. Such preference has to be reasonable and not excessive. The preference to be prescribed without making an excessive or substantial departure from the rule of merit and equality. It has to be kept within limits. Minimum standards cannot be so diluted as to become practically non existant. Such marginal institutional preference is tolerable at post-graduation levelbut is rendered intolerable at still higher levels such as that of superspeciality. .....'
20. It is true that Apex Court again observed in AIIMS's case (supra) that Institutional preference has to be reasonable and not excessive, however, in view of the fact that Rule of 75% has been laid down by the State Government under an scheme by the Apex Court, it cannot be said that said prescription is illegal. The Apex Court in several judgment has also emphasised about uniform rules of admission throughout the country but said exercise has to be under taken by the competent authority including Medical Council of India. The Apex Court has also laid down that exercise reservation of institutional preference sacrifices merit and sacrificing merit is not in the national interest but till any provision is made limiting the institutional preference or altogether doing it away, no exception can be taken to the conditions prescribed by the State Government for admission. The Constitution Bench judgment in Dr. Preeti Srivastava v. State of U.P. 1999 (7) SCC 120 : (AIR 1999 SC 2894) is also required to be noted. The question of consideration before the Apex Court in the aforesaid case was as to whether the State Government can altogether do away with a minimum percentage of marks required to be possessed by a reserved category candidate for admission in post graduate of medical education. The Apex Court held in the aforesaid case that whether lower minimum qualifying marks for reserved category candidate can be prescribed at that post graduate level of medical education is a question which must be decided by Medical Council of India since it affects the standard of post graduate of medical educational. The percentage of 20% for the reserved category for general category was held not permissible under Article 15(4) of the Constitution, the same being unreasonable at the post graduate level and contrary to the public interest.
21. In view of the foregoing discussions, it is held that till a lower percentage for institutional preference is laid down or institutional preference is altogether done away by competent body, no exception can be taken to the conditions of admission. However, the Apex Court in Dr. Dinesh Kumar's case (supra) having directed for making available not less that 25% of seats for allIndia competition, it is also open to the State Government to consider the desirability of making more percentage of seats which can be opened for All India competition in view of the observations of the Apex Court in above noted cases.
22. The third submission of counsel for the petitioner is based on provisions of Section 28(5) of U.P. State Universities Act, 1973. The submission further is that since 28(5) excludes other kind of reservations apart from reservation to Scheduled Caste and Scheduled Tribe, no other reservation is permissible. It has been contended that by making express provision for only one category of reservation all other categories have been excluded. Reliance has been placed on judgment of Apex Court in 1991 (1) JT 1983; K.V. Swaminathan v. E.V. Padmanabhan, 1996 (5) JT 205 : (AIR 1996 SC 3344); State of Haryana v. Chandvir and 1985 (3) SCC 398 : (AIR 1985 SC 1416); Union of India v. Tulsi Ram Patel.
23. Section 28(5) as extracted above provides that admission to Medical and Engineering Colleges shall, subject to Clause (a), be regulated by such order as the State Government may by notification make in that behalf. The provisions of Section 28(5)(b) makes it clear that admission to medical courses shall be regulated by orders made by the State Government subject to Clause (a) Clause (a) of Section 28(5) provides that reservation of seat for admission to candidates belonging to Scheduled Castes, Scheduled Tribes and other backward classes may be made and regulated by such order as the State Government may by notification make provided that reservation under this clause shall not exceed 50% of the total number of seats in any course of study. The reservation in Clause (a) is with regard to reservation of seats for Scheduled Castes, Scheduled Tribes and other backward classes and the prescription of 50% is with regard to reservation as contemplated in Clause (a). A conjoint reading of Clauses (a) and (b) of Section 28(5) makes it clear that State Government can regulate the admission subject to reservation of seats for Scheduled Castes, Scheduled Tribes and other backward classes as mentioned in Clause (a). Institutional preference and the condition regarding institutional preference as laid down in conditions A(i) and A(ii) is not a reservation for Scheduled Castes, Scheduled Tribes and other backward classes and is thus beyond the scope of Clause (a) of Sub-section (5) of Section 28. Clause (b) of Section of Sub-section (5) of Section 28 retains the power of the State Government to regulate the admission .The State Government, thus, can provide for rules for admission subject to condition as laid down in Sub-clause (a). The condition laid down in Sub-clause (a) in no manner militates against the prescription of condition in conditions A(i) and A(ii). The submission of counsel for the petitioner that under Section 28(5) no other kind of reservation can be provided except one referred to in Sub-clause (a) cannot be accepted. Institutional preference is not reservation of Scheduled Castes, Scheduled Tribes and other backward classes. Further the requirement of Clause (a) of Sub-section (5) of Section 28 is very much laid down in Condition A(iii) which reads as under :--
'(iii) According to present reservation policy of the State Government, the number of seats in each course and college are given on page Nos. 7 and 8 but are subject to changes as per Government order.'
Thus the reservation as contemplated in Clause (a) has already been taken into consideration in condition of admission.
24. The Apex Court in AIR 1968 SC 1012: Minor P. Rajendran v. State of Madras had occasion to consider the rules for selection of candidates for admission in MBBS course which were laid down by the Stale of Madras. Before the Apex Court it was urged that the eligibility and qualification of candidates have to be tested on the basis of provisions of Universities Act. The Apex Court in paragraph 17 has held as under at page 1017 :--
'17. ........... .............. ...............The only point urged before the Division Bench was on the basis of a provision in the University Act as to eligibility and qualification of candidates for admission to medical colleges. There is however, no substance in the contention raised in this behalf, for the Rules as to eligibility and qualification as framed by the University have been followed. So far as admission is concerned , it has to be made by those who are in control of the colleges in this case the Government, because the Medical Colleges are Government Colleges affiliated to the university. In these circumstances the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the University as to eligibility and qualifications. This was what was done in these cases and therefore the selection cannot be challenged on the ground that it was not in accordance with the University Act and the Rules framed thereunder .'
25. The above ratio laid down by the Apex Court has been noted with approval by the Apex Court itself in Dr. Preeti Srivastava's case (supra).
26. Thus prescription of eligibility of having passed graduation from a medical college of the State for appearing against 75% seats does not militate against the provisions of Section 28(5).
27. The submission of counsel for the petitioner that since in Section 28(5) there is express provision regarding only one category of reservation i.e. reservation of Scheduled Caste, Scheduled Tribe and other backward classes has to be excluded is to be considered. The above submission is based on the maxim, 'Expression Facit Cessare Taciturn' (Where there is express mention of certain things then anything not mentioned is excluded). The counsel for the petitioner has also relied on three decisions for the proposition as mentioned above. There cannot be any dispute with the proposition as laid down in the aforesaid cases. In the present case, however, there is express provision in Section 28(5)(b) that admission to medical college shall be provided by the order issued by the State Government subject to provisions of Clause (a). Clause (a) of Sub-section (5) of Section 28 is not the only provision relating to admission in medical college, rather the rules to be made by the State Government have been made subject to Clause (a). Thus the rules for admission had to take the consideration the reservation as provided in Clause (a) but the provision does not stop there. The State Government is fully entitled to make any other condition, which is not in conflict with Clause (a). In view of the aforesaid, the aforesaid maxim has no application in the present case.
28. In view of the foregoing discussions, Section 28(5) does not in any manner/militate against the conditions laid down by the State Government in Conditions A(i) and A(ii) of Uttar Pradesh Post Graduate Entrance Examination, 2001. The above submission of Counsel for the petitioner thus cannot be accepted.
29. Coming to the next submission of counsel for the petitioner that regulations have been made by the Medical Council of India, namely, post Graduate Medical Education Rules, 2000 which provides Criteria for admission on academic merit, the institutional preference cannot be resorted to. The counsel for the petitioner has relied on Clause 9 of the aforesaid Regulations. Clause 9 is quoted as under :--
'9. SELECTION OF POST GRADUATION STUDENTS.
(1) Students for postgraduate medical course shall be selected strictly on the basis of their academic merit.
(2) For determination the academic merit, the university institution may adopt any one of the following procedures both for degree and diploma courses :--
(i) On the basis of merit as determined by a competitive test, conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same state, or
(ii) On the basis of merit as determined by a centralised competitive test held at the national level; or
(iii) On the basis of the individual cumulative performance at the first, second and third MBBS examinations, if such examinations have been passed from the same university; or
(iv) Combination of (i) and (iii) provided that where entrance test for post graduate admission is held by a State Government or a university or any other authorised examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 per cent for general candidates and 40 per cent for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes.
Provided further that in non governmental institutions fifty per cent of the total seats shall be filled by the competent authority and the remaining fifty per cent by the management of the institution on the basis of merit.'
A perusal of Clause 9 makes it clear that the selection for the postgraduate medical courses has to be strictly on the basis of academic merit of the candidate, Further in the entrance test minimum percentage of marks for eligibility for admission to postgraduate courses is 50% for general category and 40% for candidates belonging to scheduled caste, scheduled tribes and other backward classes. The above regulation thus shows that minimum percentage of marks for eligibility has been laid down i.e. one of the condition of eligibility for admission. Regulation 9 does not contain any provision with regard to fixing any percentage for institutional preference or doing away the same. Medical Council of India is well aware of the existing scheme for admission to post graduate courses, which provided for not less than (sic) seats to be filled up by all Indian test. Regulation 9 does not lay down any provision with regard to aforesaid percentage nor it lays down that there will be no institutional preference. The earlier regulations framed by Medical Council of India have been noted by the Apex Court in Preeti Srivastava's case (supra). Condition 5 as noted in the aforesaid judgment was to the effect. The selection of post graduates both for degree and diploma course should be strictly on the basis of academic merit.' After noting the aforesaid regulations, the Apex Court in paragraph 58 held.
'58. The regulations governing postgraduate medical education already referred to earlier, provide for admission on the basis of merit. The regulations, however, have not clearly spelt out whether there can or cannot be, any reservations for Scheduled Castes, Scheduled Tribes and/or Backward Class candidates at the stage of postgraduate medical admissions. Whether such a reservation would impinge on the standards or not would depend upon the manner in which such reservation is made, and whether the minimum qualifying marks for the reserved categories are properly fixed or not. It is for the Medical Council of India to lay down proper norms in this area and to prescribe whether the minimum qualifying marks for the admission of students in the reserved category can be less than students minimum qualifying marks for the general categories students at the postgraduate level; and minimum to what extent. Even if we accept the contention of the respondentsthat for the reserved category candidates also, their inter Superintending Engineer merit is the criteria for selection, although for the reserved category of candidates lower minimum qualifying marks are prescribed, the merit which is envisaged under the Indian Medical Council Act or its regulations is comparative merit for all categories of candidates. For admission to a post graduate course in Medicine, the merit criteria cannot be so diluted by the State as to affect the standards of postgraduate medical education as prescribed under the regulations framed by the Indian Medical Council. It is for the Indian Medical Council to consider whether lower minimum qualifying marks can be prescribed at the postgraduate level for the reserved category candidates. We have already opined that the minimum qualifying marks of 20% as compared to 45% for the general category candidates appear to be too low. This would make it difficult for the reserved category candidates to bring their performance on a par with the general category candidates in the course of postgraduate studies and before they qualify in the post graduate examination it is also necessary in the public interest to ensure that the (sic) dates at the post graduate level have not (sic) passed the examination, but they have profited from their studies in a manner which makes them capable of making their own contribution, that they are capable of diagnosing difficult medical conditions with a certain degree of expertise, and are capable of rendering to the ill, specialised services of a certain acceptable standard expected of doctors with specialised training.'
30. Similarly the Regulations 2000 as relied by counsel for the petitioner do not spell out as to whether institutional preference has to be given or not to be given for admission in postgraduate courses, The regulation being silent, the State Government is free to provide for condition, which does not militate against any legislation occupying the field. Thus Regulation 2000 do not contain any prohibition against institutional preference provided by the State Government, hence on the aforesaid submission no fault can be found out with the conditions laid down for entrance test.
31. The counsel for the petitioner lastly contended that the case of the petitioner is fully covered by Dr. Parag Gupta's case (supra) and equity is in his favour for permitting him to compete against 75% seats. Dr. Parag Gupta's case (supra) was a case of a student who has qualified for medical degree course under All India quota of 15% and migrated to another State. Dr. Parag Gupta was born and brought up in Delhi. His case was that he should be considered for admission by Delhi University, against 75% seats although he has studied MBBS course of Tamil Nadu having been allotted to Tamil Nadu under 75% quota. The Apex Court permitted Dr. Parag Gupta to participate in the home examination irrespective of any kind of preference. The petitioner is claiming parity with Dr. Parag Gupta. Submission is that Dr. Parag Gupta has also passed MBBS outside the State and was permitted by the Apex Court to participate in home State. Dr. Parag Gupta's case (supra) was subsequently explained and clarified in State of U.P. v. Vineet Singh; 2000 (7) SCC 262 : (AIR 2000 SC 2766). In Vineet Singh's case, the Allahabad High Court allowed writ petitions of candidates who have passed from outside the State and permitted them to appear under 75% quota. The Apex Court in Vineet Singh's case (supra) set-aside the order of High Court in so far as it related to the candidates who were not selected under 15% all India seat. It was laid down by the Apex Court in paragraphs 3 and 4.
'3. The problem felt by the Uttar Pradesh Government or certain other students as modifying the decision in Pradeep Jain (Dr.) case is not at all well founded. In fact, what this Court stated in summarising the law on the matter is by culling out the principles from the said decision and we have not evolved any new principle at all. Based on these principles we have adjusted the equities in respect of students selected under 15% All-India quota and who had migrated to other States. If the judgment rendered by us in Dr. Parag Gupta's case is confined to such students, we do not think the difficulty felt by the appellants in these cases would arise at all.
4. The general direction given by the High Court following the judgment of this Court in Dr. Parag Gupta's case in respect of all petitioners without examining their cases whether they fell within 15% All-India quota and who had been selected under 15% All-India quota and migrated to other States ornot, would not be appropriate. The order of the High Court, therefore stands modified by confining its order only to fresh students who had migrated to a other States/universities under 15% All-India quota and who were desirous of pursuing studies in their home States and not to every student who has gone out of his home State and desires to return to his home State. In respect of such other students the relief granted by the High Court should not apply.'
32. The applicability of Dr. Parag Gupta's case (supra) thus, have to be confined to those candidates, who have passed MBBS from outside the State having selected under 15% quota and compelled to take admission to the medical college allotted to them. The principle laid down in Dr. Parag Gupta's case (supra) has also been Incorporated in the conditions laid down by the State of U.P. Post Graduate Medical Entrance Examination, 2001. All those candidates who were admitted under 15% quota and have passed MBBS from outside State have also been permitted to compete against 75% seats. The Apex Court in Vineet Singh's case (supra) has clarified that benefit of Dr. Parag Gupta's case (supra) is available to only those candidates who have come under 15% quota. Thus judgment in Dr. Parag Gupta's case (supra) does not come to any help to the petitioner.
33. The judgment of Apex Court in Abhinav Aggrawal's case (supra) squarely covers the controversy raised in the writ petition. In the Apex Court writ petitions were filed by the candidates hailing from Delhi and the candidates hailing from State of Uttar Pradesh. It has been prayed that they should be permitted to participate under 75% seats irrespective of the fact that they have passed MBBS from the State other than their home States. The Apex Court in Abhinav Aggrawal's case after considering its judgment in Dr. Jagdish Saran's case (supra), in Dr. Dinesh Kumar's case (supra) and in Dr. Parag Gupta's cases (supra) held in paragraphs 7 and 8,
'7. Its a way the decision in State of U. P. v. Vineet Singh, covers the matter In dispute. In that case extending the principle in Dr. Parag Gupta case, the High Court of Allahabad had directed to allow taking entrance examination in respect of all students who had migrated to other States and soughtfor admission in their home State. This Court explained that the decision in Dr. Parag Gupta case was applicable only to those selected pursuant to 15% All-India quota provided under a scheme framed in Dinesh Kumar case. It is submitted that in these cases independent of Dr. Parag Gupta case the petitioner's cases have to be examined as to whether the petitioners are discriminated against other students in their home States. The question of attaining uniformity in the matter of admission in P.G. medical courses in all medical colleges is wrought with many complexities. Students who have studied outside Delhi are also eligible to the 25% All-India quota provided under the scheme for admission to P.G. medical courses. In view of the law declared by this Court and directions issued pursuant thereto, schemes have been framed by respondents institutions. We reiterate that it would be ideal for the State/authorities concerned to achieve uniformity by adopting appropriate criteria in the matter of admission to P.G. Courses in medical colleges.
8. When the admission rules have been framed pursuant to the decisions of this Court to which we have adverted to and those decisions have been rendered bearing in mind the scope of Article 14 of the Constitution vis-a-vis the local needs, we do not think, it is permissible or appropriate for us to disturb that scheme. Hence, we decline to interfere with the process of selection being made to consider the cases of the petitioners.'
34. The case of Abhinav Aggrawal before the Apex Court was a case of a candidate who raised similar contention before the Apex Court which are being raised in the present writ petition. The claim of similarly situate candidate having been rejected in Abhinav Aggrawal's case (supra), the petitioner's claim cannot be accepted.
35. One more fact is to be taken into consideration. The petitioner was selected in MBBS course by Armed Forces Medical College, Pune. Armed Forces Medical College is an institution of Armed Forces. Thestudents admitted to Armed Forces Medical College have compulsory liability to serve as permanent Commissioned Officer in the Armed Forces Medical Service. After four years of service a graduate is entitled to be considered for post graduate. The special purpose for which Armed Forces Medical College has been established and the courses are imparted has also to be taken into consideration. A graduate passing MBBS from Armed Forces Medical College has also an opportunity to take admission in post graduate courses in Armed Forces Medical College itself. Apart from above 25% All India quota for post graduate courses is available on all India basis in State of U.P. as well as other States. Thus it cannot be said that petitioner has no avenue to seek admission in post graduate course.
36. In view of what has been said above, it cannot be held that conditions of admission in post graduate medical courses are illegal. It is, however, observed that it is for the competent body to lay down uniform criteria for admission to post-graduate courses in the light of the observations of the Apex Court as noted above. Until competent body lays down any Rules, State Government is also entitled to consider the desirability of increasing percentage of seats which have to be made available for all India competition in accordance with the observations of the Apex Court as noted above. The petitioner having not done his graduation from any of the medical colleges of the State and he having also not covered under 15% of all India quota which is earmarked for admission in MBBS in medical colleges throughout the country, he is not entitled to be considered against 75% seats in which institutional preference is given to graduates of medical colleges of the State. No relief as prayed for by the petitioner can be granted in this writ petition.
37. The writ petition is dismissed subject to observations as made above.