Ramachandran Nair, J.
Constitutional validity of the preferences and reservations given to local students by the State for admission to Super Speciality Medical courses (DM and MCH) commencing from the academic year 2010-2011 is the question decided by the learned Single Judge against which the above Writ Appeals are filed. When the prospectus for admissions was first issued, it provided for preference to students who have completed MBBS or Post-graduate courses from Medical Colleges in Kerala and also to Doctors who have Rural service in Kerala. So far as outside Kerala students who participated in the Entrance Examination are concerned, they would get chance only if there are no Kerala students falling in the two categories above stated with minimum marks in the subject in which they seek admission. Altogether there were 85 seats for the Super Speciality courses in DM and MCH, of which 19 seats were reserved for Doctors in Government service and only 66 seats were available for selection in the open merit quota. After commencement of the selection process, the prospectus was amended limiting reservation to candidates with rural service in Kerala to 10% of the seats and enlarging the scope of “Kerala students” to cover students of Kerala origin and children of members of All India Service serving in Kerala. The only students who are from outside Kerala contesting the original and revised terms of the prospectus are the appellants in W.A.Nos.1399 and 1429 of 2010. These appellants in fact participated in the written examination and thereafter filed writ petitions challenging the preferences and reservation provided to the local students in the prospectus. However, the learned Single Judge dismissed their writ petitions holding that after participating in the Entrance examination they have no right to challenge the terms of the prospectus. However, in the Writ Appeals filed by them, the question whether the students after participating in the Entrance Examination based on prospectus could thereafter challenge the prospectus in court was referred to the Full Bench and the Full Bench after upholding the maintainability of the Writ Petitions and allowing the same on the question referred, sent back the appeals to us for decision on merits. Therefore, so far as the appellants in these two appeals are concerned, their challenge against the prospectus has to be decided as if the Appeals are original petitions because the learned Single Judge had no occasion to consider the challenge against prospectus on the grounds raised by them. The learned Senior counsel appearing for these appellants submitted that the judgment of the learned Single Judge rendered on merits in the writ petitions filed by others squarely applies to these appellants and on the same grounds the Single Judge allowed other writ petitions, these appellants should be granted relief. Out of the remaining Writ Appeals, W.A.Nos.1653 and 1848 of 2010, are filed by candidates who have rural service in Kerala contending that selection should have been made based on the original prospectus and the amendment introduced to the prospectus limiting reservation to those with rural service to 10% i.e. 6 out of 66 seats, is illegal and arbitrary. The relief sought by both these appellants is to restore the original prospectus thereby restoring unlimited preference to Doctors who have Rural service in Kerala. All the remaining Writ Appeals are filed by the State against the judgment of the learned Single Judge declaring the provisions in the original prospectus and in the revised prospectus providing for reservation to Kerala students and 10% for persons with Rural service as unconstitutional. The finding of the learned Single Judge following several judgments of the Supreme Court is that no kind of reservation or preference is admissible for admission to Super Speciality Medical courses namely, DM and MCH and the only criteria under the Medical Council Regulations is merit and so much so, selection should be made from the rank list prepared based on relative merit in the Entrance examination. If the judgment of the learned Single Judge is to be upheld, then all except Writ Appeal Nos.1399 and 1429 of 2010 should be dismissed and the appellants in these writ appeals should get admission because students lower in rank than these appellants are given admission because they happened to be students from Kerala. We have heard Senior counsel Sri. Kurian George Kannanthanam appearing for the appellants in the four Writ Appeals referred above, Special Government Pleader appearing for the State as a respondent in these appeals and as appellants in all other Writ Appeals, various counsel appearing for the contesting respondents and Standing Counsel appearing for the Medical Council of India.
2. The learned Single Judge allowed the writ petitions by vacating the preferences and reservations provided in the prospectus, both in it’s original and revised form, impugned in the W.P.(C)s. The prospectus as originally stood provided for preference to students who have taken Medical Degrees or Post-graduate Medical Degrees from Universities in Kerala and also to those who have one year service as Medical Officers in Rural areas in Kerala. However, the conditions in the prospectus were later amended to enlarge scope of students who have taken Medical Degrees from Universities in Kerala, to cover students of Kerala origin and the children of All India Service personnel serving in Kerala wherever they studied. So far as preference to those with Rural service are concerned, instead of giving preference to all of them, 10% of the seats were reserved for such candidates i.e. six out of 66 and the remaining 60 seats to be considered for allotment to students of Kerala origin as stated above and in the absence of any qualified student from Kerala in any subject, admission is to be given to students from outside Kerala based on the rank obtained in the Entrance examination. When Writ Appeals were filed challenging the judgment of the learned Single Judge, it was brought to our notice that the preference shown by the Government in Kerala under the prospectus is similar to the preference to local students in other States like Tamil Nadu, Andhra Pradesh, Gujarat etc. Since as of now there is no uniform pattern for selection of students on an all-India basis for admission to Post-graduate Super Speciality Medical courses giving equal opportunity to all students irrespective of the State wherefrom they are, in most of the other State Universities, we felt that prima facie the preference given to local students in line with the pattern of admission given in other States could be allowed to be implemented. We, therefore, through interim orders permitted admissions to be given based on the rank list and in accordance with the revised prospectus issued by the Directorate of Medical Education in terms of the Government guidelines. However, the interim orders issued by us were taken up before the Supreme Court and the Supreme Court dismissed the SLP’s. However, Senior counsel appearing for the outside Kerala students submitted that the Supreme Court was of the view that if required, High Court could order admissions ignoring the strict cut off time for commencement of the course study. However, Government Pleader informed us that based on the interim orders passed by the Division Bench, admissions have been given based on the revised prospectus and all the Super Speciality courses commenced on 1.10.2010 and as of now full six months of the course study is over. Therefore, even if this court finds that any of the appellants is entitled to admission in preference to any one or more already admitted, it would not be possible for this court to order admission to them because after 1/6th period of the course study is over, it could not be possible for the students to join for the same course. In fact, the process of selection for admission for the course to commence in 2011-2012 will start in the course of a couple of months. In view of the developments above stated, the Writ Appeals have become virtually infructuous and our decision on merits will probably serve as guidelines for next year’s selection.
3. On going through the judgment of the learned Single Judge under appeal, what we find is that even though the case of students from outside Kerala was not separately considered by the learned Single Judge, the principles followed by the learned Single Judge based on which preferences shown in the prospectus are cancelled would squarely apply to them who are the appellants in W.A.Nos.1399 and 1429 of 2010 and so much so, if judgment is upheld, they would be eligible for admission by virtue of their high position in the rank list, no matter on account of the commencement of the course more than six months back they cannot be granted admission under orders of this court by substituting those who are already given admission. So far as the appellants in W.A.Nos.1653 and 1848 of 2010 are concerned, if the modification of prospectus reducing reservation provided to persons with Rural service to 10% is upheld, those writ appeals have to be only dismissed. So far as the other writ appeals are concerned, all are filed by the State for the purpose of sustaining the preferences shown by the State to the students of Kerala origin which according to the State, is at par with preferences shown in other States for admission to Post-graduate and Super Speciality Medical courses, some of which were upheld or partly upheld by the Supreme Court in some of the decisions cited before us.
4. After hearing counsel appearing for all parties, we do not think there is any scope for interference with the findings of the learned Single Judge because Post-graduate Medical Education Regulations framed by the Medical Council of India in clause (9) provides for admission for these courses based on academic merit of the applicants and weightage for remote/difficult area service. This is because the Regulations framed by the Medical Council of India in exercise of powers under the Indian Medical Council Act which has it’s source under Entry 66 of List I of the VIIth Schedule to the Constitution of India, will supercede any State Regulation prescribed under Entry 25 of List II of the VIIth Schedule. The learned Single Judge has relied on several judgments of the Supreme Court on the subject, particularly in Preeti Srivastava (Dr.) v. State of M.P. (1997) 7 SCC 120 wherein the Supreme Court held that “the scheme of Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council” and that “the universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognized under the Medical Council of India Act”. Besides this judgment, the learned Single Judge has relied on judgment of the Supreme Court in Pradeep Jain v. Union of India (1984 (3) SCC 654) and the Constitution Bench judgment in Saurabh Chaudhuri v. Union of India (2003) 11 SCC 146 wherein the Supreme Court held as follows:
“As regards feasibility of constitutional reservations at the level of superspecialities, the position is that the judiciary has adopted the dominant norm i.e. “the higher the level of speciality the lesser the role of reservation”. At the level of superspecialities the rule of “equal chance for equal marks” dominates. This view equally applies to all superspeciality institutions.”
We do not know what is the scope for Writ Appeals when the Single Judge decides the matter just following binding decisions of the Supreme Court including Constitution Bench decision. We cannot forget the fact that the admissions involved in these cases are not for the graduate level nor even for the Post-graduate level, but for Super Speciality courses like DM and MCH where according to the Medical Council Regulations the only criteria is relative merit of the candidates. Higher education at this level is within the exclusive domain of Parliament under Entry 66 of List I and so much so, Medical Council Regulations which have the force of law should be followed which is exactly what the Single Judge held. However, Government Pleader highlighted the need to provide reservation to local students which according to him, is in line with reservations provided by other Universities for the students in those States. It is also seen that the Supreme Court has considered the validity of reservations in the decisions in Gujarat University v. Rajiv Gopinath Bhatt (1996 (4) SCC 60 and K. Duraisamy v. State of T.N. (2001 (2) SCC 538) and atleast upheld partial reservations. The issue is later discussed in detail by the Constitution Bench in Saurabh Chaudhuri v. Union of India (2003 (11) SCC 146). Even though the Medical Council Regulations on Post-graduate Medical Admissions provide no kind of reservation and only relative merit is the criteria for admission and probably the result of Entrance examination can be safely relied on to ascertain the relative merit of the candidates seeking admission, the fact remains that the Medical Council Regulations are not uniformly implemented, no matter the Supreme Court has adversely commented upon the Universities for not following the same for admissions. We have to keep in mind the practical problems confronted by the local students from Kerala who do not get equal treatment with local students in other Universities when they seek admission for Post-graduate Super Speciality Medical courses in such Universities. Therefore, the only way to provide admissions to local students for Post-graduate Super Speciality Medical courses is to provide preference to them for admission in the Universities in Kerala. So much so, as long as the principles laid down by the learned Single Judge is not enforced all over the country, we cannot find fault with the State showing preferences to students who pass out the Medical Degrees or Post-graduate Degrees from Medical Colleges in Kerala and also to students of Kerala origin. We have to consider the challenge against the constitutionality and legality of the preferences shown to Kerala students under the prospectus in a realistic manner. The basis principle underlying clause (9) of the Regulations of the Medical Council which provides for selection on relative merits of the candidates seeking admission, is equal opportunity for all eligible candidates. It is for the violation of this underlying principle i.e. Article 14 of the Constitution of India, the learned Single Judge vacated the preferences to local students given under the prospectus. In our view, the application or violation of Article 14 has to be considered in a realistic manner and it should not be applied Statewise or regionwise when the students seeking admission hail from all States and all parts of the country. Clause (9) of the Medical Council Regulations above referred applies to Universities of all other States and it is the admitted position that in most of the States reservation or preference is given to local students. When this is the position in other States, we do not think it would be just and equitable for this court to hold that clause (9) and Article 14 should apply for admissions only to the Universities in Kerala, which will deprive the local students in Kerala of the preferences given to them by the Government in Kerala. In other words, in our view, so long as equal opportunity to Keralites is not provided in Universities of other States, there is nothing wrong in Government providing preference for admission to Keralites in the Medical Colleges in Kerala. In fact, we could have considered reciprocity and equal treatment to students for such of the States where there is no preference for local students and same opportunity for admission is provided to students from Kerala as well. No such reciprocal terms is canvassed before us by any student from any other State on the ground that in the State to which he or she belongs, Keralites have equal opportunity. In short, we are of the view that as long as the Medical Council Regulations is not implemented in all States, reasonable reservation or preference could be made to local students in the State. However, we find force in the contention of the Senior council appearing for the appellants in W.A.Nos.1399 and 1429 of 2010 in as much as the preference without limit to local students works out 100% reservation for Kerala students because outsiders will get chance only if there is no Kerala student with minimum marks available for admission for the subject. Considering the number of applicants from Kerala, the local preference shown in the impugned prospectus works out to be 100% preference for Keralites, which we have to necessarily declare as unreasonable and arbitrary and we do so. We have already noticed that the appellants in these two writ appeals by virtue of their position in the rank list above several other local students who secured admissions, would have got admission but for the 100% reservation provided through the local preference given under the impugned prospectus. However, since the course has already commenced and advanced by more than six months, we cannot consider relief for them by way of admission through substitution of already admitted candidates. We have seen reports that based on the consistent decisions of the Supreme Court and High Courts, the Medical Council of India proposes to conduct common Entrance examinations for admissions to Medical courses for all Medical Colleges in the country and if the same is done, probably the selection on merit for all students seeking admission in the country as a whole will put an end to all the litigations. Unless the Medical Council of India atleast oversees selections for admissions based on merit alone, violations are bound to be there. We make this observation only because it is not within our powers to issue direction binding other States or Universities which only the Honourable Supreme Court can do. We wish atleast for the next academic year uniform selection will be introduced by the Medical Council of India for admissions atleast for Post-graduate Super Speciality Medical courses all over India.
5. In view of the foregoing discussions, observations and findings, we conclude our findings as follows:
i) The 100% reservation provided in the prospectus through the preference given to applicants from Kerala is declared arbitrary and unconstitutional. However, in view of the admissions given under interim orders in the Writ Appeals and the commencement of the course six months back, neither the judgment of the learned Single Judge nor this judgment of ours will affect the validity of the admissions given.
ii) If the Medical Council of India does not provide for centralized selection for admissions to Post-graduate Super Speciality courses in Medical Science from next academic year onwards, then the State and the Directorate of Medical Education will have to frame fresh prospectus providing only reasonable reservation to Kerala students in line with reservation provided to local students in other States and so far as students hailing from States where Keralites get equal opportunity along with them for admissions are concerned, they should be treated at par with Keralites for selection.
Writ Appeal Nos.1399 and 1429 of 2010, though are allowed technically on account of declaration of invalidity of 100% reservation to local students, the appellants cannot be given admission on account of commencement of the course six months back. Writ Appeal Nos.1653 and 1848 of 2010 challenging the amendment to the prospectus limiting reservation to persons having Rural service to 10% are dismissed. Remaining Writ Appeals, all of which filed by the State, are disposed of by modifying the judgment of the learned Single Judge as above.