AMITABH BANDHOPADHYAY v. STATE — 1990 DIGILAW 54 (GUJ)

SHAH, J. ( 1 ) RULE. Mr. Tripathi, A. G. P. , waives service for the respondents. At the request of the learned Advocates for the parties and as the matters are urgent and require immediate disposal, they are heard today. ( 2 ) AS the identical question of law is involved in both the matters, they are disposed of by a common judgment. ( 3 ) THESE two Special Civil Application are filed by the students who are admitted to post-graduate courses in Medical College in Gujarat on the basis of All India Entrance Test marks obtained by them in the examination held in 1989. It is the say of the petitioner Dr. Amitabh Bandhopadhyay in Special civil Application No. 811 of 1990 that in the All India Entrance Test Examination he had secured the highest marks in the subject of Medicine and he was at serial No. 1 in the said list. The petitioner of Special Civil Application No. 1293 of 1990 Dr. Ravi Arora was at Serial No. 2 in the subject of Surgery. It is their grievance that in spite of these facts even though the petitioners are admitted to post-graduate courses, yet they are not given residency in their respective subjects. ( 4 ) IN response to the notice issued by this Court, the Director of postgraduate studies, B. J. Medical College, Ahmedabad, has filed an Affidavitin- reply wherein inter alia, it is stated that after giving admission to the petitioners they are treated at par with all other resident students of Gujarat university; students who have passed All India Entrance Examination are entitled to get 25% seats available in various subjects in the State of Gujarat at various Universities and the registration for P. G. Course is governed by the rules framed in that regard by the concerned University. It has been further stated that as per the residency rules framed by the Government of Gujarat by its resolution dated 5-12-1989, the residency is given on the basis of total marks obtained at the Final M. B. B. S. Examination. Reliance is placed upon Rules 7. 1 to 7. 5 which provide for detailed working out of preparation of merit list. In the merit list which is prepared on the basis of M. B. B. S. Examination marks, the petitioners are not entitled to get residence in respective subjects. Reliance is placed upon Rules 7. 1 to 7. 5 which provide for detailed working out of preparation of merit list. In the merit list which is prepared on the basis of M. B. B. S. Examination marks, the petitioners are not entitled to get residence in respective subjects. The petitioners allegation that they are discriminatory and the State of Gujarat is frustrating the judgment of the Supreme Court is denied by stating that residency is given on the basis of marks obtained in M. B. B. S. Examination and not on the basis of All India Entrance Examination as per the residency rules framed by the Government. ( 5 ) IT is an admitted fact that in each of the subjects of Medicine and Surgery 5 seats are reserved for All India students. On the basis of the said seats the petitioners are given admission. ( 6 ) THE question which requires consideration is whether the rules framed by the State Government for giving residency to the students on the basis of m. B. B. S. marks would be applicable to those students who are given admissions to the post-graduate courses on the basis of All India Entrance Examination marks. Presuming that those rules are applicable, would it be reasonable to hold that the order of merit adopted in the said rules is just one or is it violative of right of equality ? ( 7 ) IN the case of Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, air 1985 SC 1059 , the Court observed that the standard of judging at different qualifying examinations cannot by its very nature be uniform. Some Universities may be very liberal in their making while some other may be strict. There would be no comparable standards on the basis of which the relative merits of the students can be judged. The Court, therefore, held that it would be wholly unjust to grant admissions to students by assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where standard of judging would be reasonable uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Art. 14 of the Constitution. That would indeed be blatantly violative of the concept of equality enshrined in Art. 14 of the Constitution. The relevant observations of the Supreme Court are as under :"there would be no comparable standards on the basis of which the relative merits of the students can be judged. It would be wholly unjust to grant admissions to the students by assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different state Governments or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly violative ofthe concept of equality enshrined in Art. 14 of the Constitution. We must, therefore, make it clear that no State Government or University or Medical College shall grant admission to students to fill the minimum 30% non-reserved seats for the M. B. B. S. course, on the basis of comparison of the marks obtained by them at different qualifying examinations. The admissions must be based on evaluation of relative merits through an entrance examination which would be open to all candidates throughout the country. Such entrance examination should in our opinion be held by the Government of India or the Indian Medical Council on an all India basis and admissions should be granted to the various medical colleges in the country on the basis of the marks obtained at such entrance examination. " (Underlines added) in this case one student had passed the examination from Calcutta Medical college and another student had passed the examination from Government medical College, Amritsar. It cannot be said that the standard of giving marks in those Universities or standard of judging them would be similar. There is nothing to show that the standard of examination in the medical educational institutions in the Gujarat State and the Universities in West Bengal and punjab is similar. As considered by the Supreme Court, the standard of judging their merits would necessarily vary and not the same. Admission to post-graduate studies in Medical Colleges is given from two different sources. Two students from Gujarat are given admission on the basis of Final M. B. B. S. marks. Other students are given admission on the basis of All India Entrance examination. Admission to post-graduate studies in Medical Colleges is given from two different sources. Two students from Gujarat are given admission on the basis of Final M. B. B. S. marks. Other students are given admission on the basis of All India Entrance examination. In the rules framed by the State Government for giving residency to the students these two different categories are clubbed together. They do not make any distinction and provide that residency would be given on the basis of marks obtained at the Final M. B. B. S. Examination. It fails to distinguish unequals and their merit is judged by a yardstick which is dissimilar. Therefore, the residency rules framed by the Government Resolution dated 5-12-1989 for giving residency to those students who are given admission on the basis of All India Entrance Examination would be wholly inapplicable or it can be said that this would be discriminatory and violative of Art. 14 of the Constitution of India as dissimilar classes are sought to be treated on the same footing. ( 8 ) MR. Tripathi learned Assistant Govt. Pleader appearing on behalf of the respondents, has pointed out that no separate rules are framed for giving residency to the students who are given admission on the basis of All India entrance Examination. He also submitted that even though the student is given admission to post-graduate course, he may not be given residency because number of residencies is less. If the number of residencies is less, that would not mean that the students who are given admission on the basis of All india Entrance Examination should be given residency on the basis of marks obtained at the M. B. B. S. Examination. For the students who are given admission on the basis of All India Entrance be the criteria for giving residency. If the number of residencies is less, then proportionate appropriate division can be made by the concerned authority but the criteria for giving them residency should be on the basis of marks obtained in the All India entrance Examination. It would be for the concerned authority to frame necessary rules for giving residency to those students who are admitted to the post-graduate course on the basis of All India Entrance Examination marks. As the petitioners are at Serial Nos. It would be for the concerned authority to frame necessary rules for giving residency to those students who are admitted to the post-graduate course on the basis of All India Entrance Examination marks. As the petitioners are at Serial Nos. 1 and 2 respectively in the merit list in the All India Entrance Examination, they ought to have been given residency. ( 9 ) IN the result, both these petitions are allowed. The respondents are directed to give residency to the petitioners and are further directed to pay stipend in accordance with the rules within one month from today. It is the say of the respondents that residency to 20 students in each subject is given on the basis of the marks obtained in Final M. B. B. S. Examination, and, therefore, at present there are no vacant posts. It would not be proper to disturb the students to whom residency is given on the basis of wrong criteria. Hence it is ordered that if there are no vacant posts, the respondents are directed to create supernumerary posts for the petitioners. Rule made absolute to the aforesaid extent with no order as to costs. .