Faizan Uddin, J.
1. The order passed in this petition will also govern the disposal of Misc. Petn. No. 3560 of 1989 Dr. (Smt.) Anshu Gupta v. State of M.P. as both the petitions raise a common question of law and facts for determination by this Full Bench.
2. Differing with the view expressed by the earlier two Division Benches of this Court, in Dr. (Mrs.) Anju Gupta v. State of M. P., M.P. No. 666 of 1981, decided on 4-8-1981 and Smt. Tanuja Singh v. State of M.P., M.P, No. 1169 of 1988, decided on30-8-1988; another Division Bench of this Court has made this reference to examine and decide the constitutional validity of Rules 3 and 4 of 1984 Revised Rules framed by the Government of Madhya Pradesh, for selection of the candidates for appointment as House Job Officers in the Medical Colleges of the State. That is how this petition has been placed before this Full Bench.
3. Before we refer to the impugned Rules, it would be appropriate to briefly state the facts, in the context of which, the question of examining the constitutional validity of the impugned Rules, has been referred for our decision. Dr. Smt. Mitali Choudhary, the petitioner in Misc. Petition No. 2223 of 1989 completed her M.B.B.S. degree course from Medical College, Raipur and commenced her internship in the said College. During the continuance of her internship at Raipur, she was wedded to Dr. Deepayan Choudhary of Rewa and, therefore, she shifted from Raipur to Rewa and completed her internship in the Medical College, Rewa. The Dean Medical College, Rewa respondent No. 3 issued a notification dated 1-2-1988 inviting application for admission to institutional house-jobs from candidates who had graduated from Medical College, Rewa. Dr. Smt. Mitali Choudhary also made an application for her admission to house job in the discipline of Opthalmology while she was doing her internship at Raipur. The Dean Medical College, Rewa prepared two separate select list, one for institutional candidates and another for outsiders, on the basis of percentage of marks obtained by the candidates in their M.B.B.S. examination. The petitioner Dr. Mitali Choudhary in M.P. No. 2223 of 1989, having obtained 56 per cent marks, was placed at serial No. 6 in the list of outside candidates. Some times after filing of this petition, the petitioner Dr. Mitali was granted admission for house-job in the discipline of Pathology but not in the discipline of Opthalmology which was her first choice.
4. Dr. Smt. Anshu Gupta, the petitioner in M.P. No. 3560 of 1989 had passed her M.B.B.S. Degree Course from Patna University (State of Bihar) in the year 1988, with 63.9. per cent marks. She completed her internship at Patna itself. She was wedded to Dr. Ranjan Gupta of Raipur who was admitted in Post-Graduate Course in General Surgery at Medical College, Raipur. The petitioner, Dr. Anshu Gupta, in order to fulfil her conjugal obligations had to shift to Raipur after her marriage. She made an application for her admission to house job in Obstetrics and Gynaecology in Medical College Raipur. The petitioner Dr. Anshu Gupta in M.P. No. 3560/ 89 was placed at serial No. 1 in the select list of candidates from outside the State. But as the petitioner Smt. Mitali Choudhary in M.P. No. 2223 of 1989 had passed her M.B.B.S. Degree Course from Medical College, Raipur and petitioner Dr. Anshu Gunta in M.P. No. 3560 of 1989 had passed her M.B.B.S. degree course from Medical College Patna(Bihar) and, therefore, according to the Revised 1984 Rules framed by the Government of Madhya Pradesh, for selection of the candidates for appointment as House Job Officers in the Medical Colleges of the State (hereinafter referred to as 1984 Rules) which provided cent per cent institutional preference for appointment as house officers, none of the two petitioners could get admission/appointment as house officers in Medical College, Rewa/Raipur, as both of them were outsiders, having obtained their Medical Graduation -- from the Medical Colleges other than Raipur/Rewa, Medical College.
5. The petitioners placing their reliance on the two earlier Division Bench decisions of this Court in M.P. No. 666 of 1981 (Dr. Anju Gupta v. State of M.P.) and M. P. 1169 of 1988 (Dr. Tanuja Singh v. State of M.P.) filed these two petitions contending that the impugned Rules have been declared invalid being violative of Article 14 of the Constitution on the ground that there cannot be cent per cent reservation for institutional candidates which amounts to unreasonable classification and a hostile discrimination. The Division Bench which made this reference distinguished the Supreme Court decisions condemning wholesale reservation of admission for medical studies on the basis of d6micile or residential requirement within the State or on the basis of institutional preference excluding all students not satisfying these requirements and differing with the view taken in the above referred --two Division Benches of this Court expressed the opinion that impugned Rules 3 and 4 cannot be said to be discriminatory and, therefore, the same cannot be struck down as violative of Article 14 of the Constitution. The reasoning of the referring Division Bench in taking the view, that the impugned Rules are not discriminatory, are that the house job is only a part of practical training after graduation and completion of internship and in the absence of any common curriculum and system of valuation for graduation in all the Colleges of the State and the Country, the ouside candidates cannot be considered at par for purposes of admission to house job on certain percentage of reserved or unreserved seats. But since in its opinion the question of validity of the impugned Rules 3 and 4 involved a question of general and legal importance a reference to the Full Bench has been made.
6. After having narrated briefly the facts which led to this reference, let us now examine the question whether cent per cent institutional preference for admission/appointment of House Officers as provided in the impugned Rules, is consistent with the Constitutional values enshrined in Article 14 of the Constitution. There can be no dispute that State Government under Section 33 of the Indian Medical Council Act, 1956, have the right to frame the Rules and Regulations for admission to undergraduate and post-graduate Medical Courses consistent with the University Statutes and Regulations which do not suffer from any infirmities, Constitutional or otherwise. The State of Madhya Pradesh like other' States has framed Rules for selection of candidates for appointment as House Officers in the Medical Colleges; Rules for Post-Graduate Diploma Courses in Medical Colleges and Rules for Post-Graduation in M.D./M.S. Courses, But here we are concerned only with the 1984 Rules for selection of candidates for appointment as House Officers in the Medical Colleges, which were revised and brought into force with effect from 1-1-1984. The relevant rules which are impugned in this petition and of which constitutional validity has to be examined are Rules 3 and 4 which read as under:
'3.-- Only candidates who have graduated from the same Medical College and completed their internship during calendar year would be eligible for house job.'
'4.-- If any seats be left vacant after accommodating all eligible candidates, applications of candidates from other Colleges previous batches, would be considered.'
7. It may be pointed out here that originally Rules of 1977 were in force for selection of candidates for appointment as House Officer in the Medical Colleges and in those 1977 Rules, the existing Rules 3 and 4 reproduced above were also there as Rules 3 and 5. It may be noted that Rule 4 of 1977 Rules provided that the candidates who are spouses, sons and daughters of State Government servants including in terms, house staff and other staff of the Medical College and who have passed M.B.B.S. from another Medical College in the State of outside can be considered for house job at the Medical College at the Station where the concerned Government Servant/Doctor is posted or has come on transfer. Those Rules of 1977 were replaced by new Rules of 1981 in which for reasons best known to the framers thereof, Rule 4 of 1977 Rules as described just above was omitted and Rule 5 of 1977 Rules was made Rule 4 in 1981 Rules, which also finds place as Rule 4 in 1984 Rules with which we are presently concerned. Thereafter the State Government again revised the rules and the present 1984 Rules were brought into force with effect from 1-1-1984. Thus Rules 3 and 4 reproduced in paragraph No. 6 above are existing from the beginning right from 1977 till the present day.
8. A bare perusal of the impugned Rules 3 and 4 reproduced in paragraph No. 6 above will go to show that Rule 3 provides cent per cent reservation of seats for institutional candidates for appointment as House Officers to the graduates of the Medical College where the posts/seats are available and that according to Rule 4 the outside graduate from other Colleges/previous batches would be considered only when after accommodating all the eligible candidates under Rule 3 of the same Medical College any seats are left vacant. The question for consideration, therefore, is whether such a cent per cent institutional preference would fall within the frame of Article 14 of the Constitution or would be violative of the said Article.
9. First of all a Division Bench of this Court in (Dr. Anju Gupta v. State of M.P.) Misc. Petition No. 666 of 1981, decided on 4-8-1981, of which one of us (Faizan Uddin, J.) was a Member, made an observation that these Rules are open to challenge on the ground of discrimination as they reserve all posts/seats for graduates of the Medical Colleges where the posts are available; as such a cent per cent reservation for graduate of the same Medical College may be violative of Article 14 of the Constitution. But this observation was merely obiter as the Division Bench in that petition was not called upon to decide the constitutional validity of the said Rules. The validity of these Rules 3 and 4 was, however, challenged in (Smt. Tanuja Singh v. State of M.P.) Misc. Petition No. 1169 of 1988, decided on 30-8-1988, by a Division Bench of this Court of which again one of us (Faizan Uddin, J.) was a member. The Division Bench after considering some of the Supreme Court decisions took the view that evenfor appointment as House Officers there cannot be cent per cent reservation for institutional candidates and that such a reservation can be only to the extent of 75 per cent and, therefore, Rule 3 is violative of Article 14 of the Constitution and bad to that extent.
10. The State Government by framing the impugned Rules 3 and 4 quoted above sought to make a classification for -- purposes of admission as House Officers, with the Medical Graduates of the same Medical College to the wholesale exclusion of all other candidates who have obtained their M.B.B.S. degree from any other Colleges who may be considered only in the eventuality when after accommodating all the medical graduates of the same Medical College, any seat(s) are left vacant for allotment to such outside candidates. It is now fairly settled that to recognise a classification as consistent with the constitutional values and within the constraints of Article 14 of the Constitution, two tests are to be satisfied, e.g. (1) that there is an intelligible differentia which distinguishes a particular class of persons from those who are left out of that class; and (2) that there is a reasonable nexus to the object sought to be achieved by the impugned rules which make a classification by whole sale reservation of seats for candidates on the basis of institutional preference. So far as the admission to technical education and Medical Colleges are concerned the only object of selection of candidates should be to get the best talent for admission to professional Colleges and if that be the object it can safely be concluded that the object would certainly be defeated by wholesale/cent per cent reservation of seats for the institutional candidates. In the present case before us the object sought to be achieved by the impugned Rules 3 and 4 obviously cannot be to secure the best talent for allocation of seat for House job but to give preference to institutional candidates whether he is good or bad had thus to exclude more meritorious candidates. It is manifestly clear that on the basis of the impugned rules affording wholesale institutional preference, several meritorious candidates would be deprived of the allocation of seat for House Job which is a stepping stone for admission to Post Graduate courses and merit would be sacrificed at the altar of the impugned rules. By framing the impugned rules there is thus no national nexus to the object sought to be achieved.
11. There is also no intelligible differentia for classification by way of wholesale reservation of seats for institutional candidates. It cannot, however, be disputed that there is no absolute bar contained in Article 14 of the Constitution prohibiting classification but the classification has to be justified on the basis of an objective criteria based on the nexus between classification and the object to be achieved. In this connection observations of the Supreme Court in the case of Pradeep Jain v. Union of India, AIR 1984 SC 1420, at page 1437, paragraph 18, column I, may be quoted with advantage as follows :
'There have been cases where students residing in a backward region have been given preferential treatment in admissions to medical colleges and such preferential treatment has been upheld on the ground that though apparently discriminatory against others, it is intended to correct the imbalance or handicap from which the students from the backward region are suffering and thus bring about real equality in the larger sense. Such preferential treatment for those residing in the backward region is designed to produce equal opportunity on a broader basis by providing to neglected geographical or human areas an opportunity to rise which they would not have if no preferential treatment is given to them and they are treated on the same basis as others for admissions to medical colleges, because then they would never be able to compete with others more advantageously placed. If creatively and imaginatively applied, preferential treatment based on residence in a backward region can play a sigificant role in reducing uneven levels of development and such preferential treatment would presumably satisfy the test of Article 14, because it would be calculated to redress the existing imbalance between different regions in the State. There may be a case where a region is educationally backward or woefully deficient in medical services and in such a case there would be serious educational and health service disparity for that backward region which must be redressed by an equality and service minded welfare State. The purpose of such a policy would be to remove the existing inequality and to promote welfare based equality for the residents of the backward region.'
In the circumstances stated-above, if the State frames any rules for reservation or preferential to achieve the aforesaid object, the same, of course, cannot be condemned as discriminatory offending Article 14 of the Constitution. But in the instant case before us the object of the impugned rules is not to remove any existing disparity between the institutional candidates and the outsiders. Thus, the impugned rules do not satisfy any of two, essential tests so as to uphold their constitutional validity.
12. In the case of P. Rajendran v. State of Madras, AIR 1968 SC 1012, a Constitution Bench of Five Hon'ble Judges head an occasion to examine the Constitutional validity of Rule 8 of the Rules promulgated by the State of Madras for selection of candidates for admission to M.B.B.S. course which provided districtwise allocation of seats and the same was struck down as Constitutionally invalid. In paragraph No. 11 of the report it was observed as under (at page 1016):
'The question whether district-wise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that objection would be defeated if seats are allocated district by district. It cannot be and has not been denied that the object of selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors.'
We may also refer here with advantage another decision of the Supreme Court on the point in controversy, in the case of D.N. Chanchala v. State of Mysore, AIR 1971 SC 1762, in which the rule providing University-wise reservation was challenged as violation of Article 14 of the Constitution, under which preference for admission to Medical College run by a University was given to the students who had passed P.U.C. examination of that particular University and only 20 per cent seats were available to those students who had passed P.U.C. examination from other Universities. The impugned rule was not struck down as unconstitutional because it conferred a discretion on the selection committee to admit outsiders also to the extent of 20 per cent of the total available seats.
13. It is universally admitted fact that a large number of students are craving for admission to professional courses and their number far exceeds the number of seats available in Medical Colleges for their admission to such courses. That being the situation, necessarily some formulae or a via media has to-be evolved for selection of candidates for admission to Medical courses in conformity with Article 14 of the Constitution. In this regard we may refer to the observations made by the Supreme Court in yet another decision in the case of Jagdish Saran v. Union of India, AIR 1980 SC 820, wherein Krishna Iyer, J. (as he then was) observed as under (at page 826) :--
'The primary imperative of Articles 14 and 15 is equal opportunity for all across the nation to attain excellence. What is fundamental, as enduring value of our polity, is guarantees to' each of equal opportunity to unfold the full potential of his personalities. 'Each according to his ability', is of pervasive validity, and it is a latent, though radical, fundamental that, given propitious environments talent is more or less evenly distributed and every one has a prospect of rising to the peak. The Philosophy and pragmation of univeresal excellence through universal equal opportunity is part of our culture and constitutional creed. (At para 16 at page 828): 'Reservation must be kept in check by the demands of competence. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best skill or talent, must be handicapped by selecting according to capability.'
(Paras 22 to 24)
'The State's duty is to produce real equality, rather egalitarian justice in actual life. If university-wise classification for postgraduate medical education is shown to be relevant and reasonable and the differentia has a nexus to the larger goal of equalisation of educational opportunities the vice of discrimination may not invalidate the rule. What is basic is equal opportunity, for each according to his ability, not artificial compart mentalisation and institutional apartheidisation, using the mask of handicaps.'
(Paras 31,32, 33)
14. Then came the historic decision of the Supreme Court in the case of Pradeep Jain v. Union of India, AIR 1984 SC 1420, whereby a bunch of petitions were disposed in which the constitutional validity of reservation on the basis of residential requirement and institutional preference in the matter of admissions to medical courses was challenged. Since almost all the States followed the practice of such reservations based on residential requirement or institutional preference and, therefore, Supreme Court issued notices of the said petitions to various State Governments including the State of Madhya Pradesh to file their respective counter-affidavits.
15. In the case of Pradeep Jain (supra), learned Attorney-General appearing for the Union of India filed a policy statement of the Government of India which is reproduced below (at page 1439):
'Central Government is generally opposed to the principle of reservation based on domicile or residence for admission to institution of higher education, whether professional or otherwise. In view of the territorially articulated nature of the system of institutions of higher learning including institutions of professional education, there is no objections, however, to stipulating reservation or preference for a reasonable quantum in undergraduate courses for students hailing from the school system of educational interland of the institutions. For this purpose, there should be no distinction between schools affiliated to State Board and schools affiliated to CBSE.'
After taking into consideration the diverse factors prevailing in the country, the Supreme Court observed that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. It has been further observed that the percentage of reservation made on this count may also include institutional reservation as an interim measure until the stage is reached to ensure admissions to the M.B.B.S. Course on the basis of National Entrance Examination; but there should be no distinction or any discrimination between the schools affiliated to State Board and Schools affiliated to Central Board.
Further the Supreme Court in Pradeep Jain's case (supra) made a strongly worded observations at page 1440 Col. I as under :
'We agree wholly with these observations made by the learned Judge and we unreservedly condemn wholesale reservation made by some of the State Governments on the basis of 'domicile' or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State excluding all students not satisfying this requirement, regardless of merit. We declare such wholesale reservation to be unconstitutional and void as being in violation or Article 14 of the Constitution.'
16. After reaching to the conclusion disapproving the wholesale reservation based on residence requirement as well as on institutional preference, the Supreme Court in the same case of Pradeep Jain (supra) then considered as to what should be the extent of reservation based on residence requirement and institutional preference for admissions in M.B.B.S. courses and admissions for Post-Graduate Courses. After examining various factors including opportunities for professional education in particular area, extent of competition; level of educational development of the area and other relevant factors, it was held that such reservation for admission to M.B.B.S. courses should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made. At the time it has also been observed that this limit may gradually be reduced and directed the Indian Medical Council to consider whether the outer limit of 70 per cent needs to be further reduced.
17. In respect of the reservations based on residence requirement and institutional preference for admission to the post graduate courses, the Supreme Court in the case of Pradeep Jain (supra) observed that different considerations must prevail in matters of admissions to M.D.; M.S. and the like because excellence cannot be compromised by any other considerations as the same would be detrimental to the interest of the nation. After considering the recommendations of the Indian Medical Council, the opinion expressed by Medical Education Review Committee and the policy statement of Government of India, the Supreme Court took the view that so far as admission to post graduate courses are concerned, it would be desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. However, having regard to broader considerations of equality of opportunity and institutional continuity in education, it was observed that a certain percentage of seats may in the present circumstances be reserved only on the basis of institutional preference in the sense that a student who has passed M.B.B.S. course from a Medical College or University, may be given prefernce for admission to the Post Graduate Course in the same Medical College or University. But such reservation should be only to a limited extent as may be advised by the Indian Medical Council. This opinion has been maintained by the Supreme Court in subsequent pronouncements also. See Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, AIR 1985 SC 1059 and Nidamarti Mahesh Kumar v. State of Maharashtra, AIR 1986 SC 1362.
18. Learned Deputy Advocate-General Shri P.C. Naik, appearing for the respondents sought to support the impugned Rules providing cent per cent institutional reservation of seats by contending that different Universities and Colleges have different standards in the examination and marking system and that the teaching in Medical Colleges outside the State of Madhya Pradesh may differ from the Medical Colleges of the State of M.P. and, therefore, merit cannot be correctly judged only on the basis of marks obtained by the candidates. In this connection it would suffice to say that if the State Government thinks that the selection on the basis of marks obtained by the candidates would not be correct criteria, the selection of candidates for posts/seats left out for the outside candidates, over and above the seats which are reserved for institutional candidates, may be made by an entrance examination.
19. Thus as seen above the Supreme Court has in a catena of decisions consistently disapproved and condemned the cent per cent reservation for admission to technical and medical courses particularly in Post Graduate courses, be it on the basis of domicile or residence requirement or institutional preference, District-wise or University-wise, they all amount to discrimination violating constitutional mandate enshrined in Article 14 of the Constitution. The question, therefore, arises whether the impugned Rules 3 and 4 providing cent per cent reservation of seats of House Job Officers for institutional candidates will also be said to be discriminatory and violative of Article 14 of the Constitution on the parity of reasoning as in the case of admissions to M.B.B.S. and Post-Graduate courses discussed above.
20. It may be pointed out here that just as a candidate in order to secure his admission in M.B.B.S. courses has to pass and qualify himself first in the pre-medical test as a condition precedent and it is only thereafter that a candidate can be admitted to prosecute the regular M.B.B.S. course. Similarly those candidates/students who after medical graduation, desire to prosecute their further studies in Post-Graduate Courses like M.D. and M.S. etc., then according to the rules, he has necessarily to do Housemanship for a period of one year in a subject of his choice in accordance with Rule 10 of 1984. Revised Rules and until and unless a candidate has done Housemanship in the subject of his choice, he. cannot qualify himself for admission to the two years duration Post-Graduate Courses in the speciality in which he has done his House Job. Thus doing of House Job for one year is a condition precedent for admission to Post-Graduate Courses. Admission to House Job and completion thereof for a period of one year is thus a stepping stone for admission to Post-Graduate Medical Courses without which no one can in any case get an entry into the Post-Graduate Courses. The House Job, more or less is a part of Post-Graduate Course and it is for this reason that their Lordships of the Supreme Court in the case of Dinesh Kumar v. Motilal Nehru Medical College, Allahabad (supra) (relevant page 1065-Col.II), recommended to the Indian Medical Council as well as to all the State Governments, where system of one year House Job was followed by two year Post-Graduate Course to uniformly adopt the system of three year Post-Graduate Course with House Job in the first year, so as to rule out other difficulties. In view of the foregoing discussion, it would not be correct to say that House Job is only a part of practical training after graduation and completion of internship. But in fact it is a part of Post Graduation without which he cannot get an entry into Post-Graduate Courses. If, therefore, the rules regarding cent per cent institutional reservation are allowed to stand, there will always be the possibility of less meritorious candidates obtaining admission to Post Graduate Courses at the cost of better and more meritorious candidates which besides personal deprivation to such meritorious candidate would result in the national loss as the best talent would be excluded and last in the oblivion. Thus the undesirable object of eliminating talented candidates which could not be achieved directly would be achieved indirectly.
21. In the light of the above discussion and on the parity of same reasoning there appears to be no valid reasons as to why the same analogy be not drawn in respect of admissions to House Job Officers as in the case of admissions to M.B.B.S. Courses and more particularly to Post-Graduate Courses. Applying the same principles we are of the view that Rules 3 and 4 providing cent per cent reservations for institutional candidates are discriminatory and do not stand to the test of Article 14 of the Constitution. The same cannot be allowed to stand unless at least 25 per cent seats are left open for outsiders and non-institutional candidates. This opinion was expressed by a Division Bench of this Court as far back as 30-1-1988 when Misc. Petition No. 1169 of 1988 (Smt. Tanuja Singh v. State of M.P.) was decided, but it is regretted that the decision fell on deaf ears and the State Government did not come forward with the necessary amendments in the impugned Rules even to this day and allowed the invalid Rules 3 and 4 to hold the field.
22. For the reasons stated above, both the petitions M.P. No. 2223 of 1989 (Smt. Mitali Choudhary v. The State of M.P.) and M.P. No. 3560 of 1989 (Dr. Smt. Anshu Gupta v. The State of M.P.) are allowed. We declare the Rules 3 and 4 of 1984 Revised Rules for Selection of candidates for appointment as House Job Officers in the Medical Colleges, as invalid to the extent indicated above. Now the petitions be placed before the D.B. for disposal in the light of the observations made in this order.