M. RAMA JOIS J. ( 1 ) IN this writ petition, the petitioner who is a citizen of India hailing from the State of Jammu and Kashmir and who has become a permanent resident of Bangalore from May 1988, has challenged the constitutional validity of Rule 4 (1) (b) of the Karnataka Conduct of Entrance Test for Admission to Post-Graduate Degree and Diploma (Medical and Dental) Courses Rules, 1987, ('the Rules' for short) as it stands after its amendment by notification dated 25-9-1990, which provides that no candidate other than an Indian citizen of Karnataka origin shall be eligible for appearing for the entrance test, unless he or she or his / her parent (father / mother) had been a resident of Karnataka State for a period of ten years or has owned or possessed landed property or house in Karnataka State. ( 2 ) BRIEF facts of the case, are these : The petitioner is a citizen of India. She hails from the State of Jammu and Kashmir. She passed M. B. B. S. degree from Government Medical College, Srinagar, in the State of Jammu and Kashmir. She had a brilliant academic career having won Gold Medal in her M. B. B. S. examination in addition to various other prizes in the college including the credential of 'best outgoing female student'. Her father is the Head of the Department of Medicine at the Government Medical College, Srinagar. Since the date of her birth in Jammu and Kashmir, she was a permanent resident of that State. On 26-5-1988 the petitioner married one. Dr. Imtiaz A. Mekhri of Bangalore, who is a leading Ophthalmologist, born in the City of Bangalore and residing in the City of Bangalore and having his medical practice at Mekhri Nursing Home, Lalbagh Road, Bangalore. After her marriage, she came to Bangalore and has been residing with her husband. She was desirous of pursuing her Post-graduate studies in Medicine in the State of Karnataka in Opthalmology. On enquiry, she learnt that admission to Post-Graduate Medical and Dental courses in the State of karnataka was regulated by the Rules. Rule 4 (5), which was then in force relevant for the purpose of this case, reads :"4. She was desirous of pursuing her Post-graduate studies in Medicine in the State of Karnataka in Opthalmology. On enquiry, she learnt that admission to Post-Graduate Medical and Dental courses in the State of karnataka was regulated by the Rules. Rule 4 (5), which was then in force relevant for the purpose of this case, reads :"4. ELIGIBILITY : xxx xxx xxx (5) No candidate shall be eligible to appear for the entrance test unless he has studied for a minimum period of five full academic years from first standard to the qualifying examination prior to the admission to MBBS or BDS courses, in any of the Government or Government recognised educational institutions situated within the State of Karnataka. "according to the above clause, unless a candidate had studied for five full academic years in any Government or Government recognised educational institution situated in the State of Karnataka, prior to the admission to M. B. B. S. or B. D. S. courses, he / she was not eligible to take entrance test for the purpose of post-graduate courses. In the circumstances, the petitioner filed Writ Petition No. 18138 of 1989 questioning the constitutional validity of the above Rule. Rule Nisi was issued on the said writ petition and an interim order was granted directing the respondents to permit the petitioner to appear for the entrance test. When the matter came up for final hearing, it was submitted on behalf of the Government that the aforesaid Rule had been withdrawn. In view of the submission, the said writ petition was disposed of. Rule 4, which was amended as per the notification dated 12-9-1989, read as under:"no person shall be eligible to appear for the Entrance Test unless he has obtained M. B. B. S. / B. D. S. Degrees from any of the Universities established by law in Karnataka. In view of the submission, the said writ petition was disposed of. Rule 4, which was amended as per the notification dated 12-9-1989, read as under:"no person shall be eligible to appear for the Entrance Test unless he has obtained M. B. B. S. / B. D. S. Degrees from any of the Universities established by law in Karnataka. "on a comparison of the earlier Rule and the amended Rule, it is seen that whereas according to the earlier Rule, a candidate would become eligible if only he or she has studied at least for five full academic years prior to admission to M. B. B. S. / B. D. S. degree course, in any of the Government or Government recognised educational institution situated in the State of Karnataka, according to the amended Rule, no person would be eligible to appear for the entrance test unless he has obtained M. B. B. S. or B. D. S. degree from any of the Universities established by law in Karnataka. Even according to the amended Rule, the petitioner was ineligible because she had obtained her M. B. B. S. degree from a University in the State of Jammu and Kashmir. In this situation, the petitioner filed Writ Petition No. 22464 of 1989 challenging the constitutional validity of Rule 4 (1) (b) as amended by notification dated 12-9-1989. The said Rule had also been challenged by another candidate by name Dr. Balaji Pai in Writ Petition No. 3662 of 1989. That writ petition was allowed and Rule 4 (1) (b) was struck down as being violative of Article 14 of the Constitution. The said decision is S. Balaji Pai v. State of Karnataka, AIR 1990 Kar 246 . When W. P. No. 22464 of 1989 came up for hearing, a submission was made on behalf of the respondents that the rank of the petitioner in the entrance test, for which she had appeared pursuant to an interim order, was 871 and therefore she could not be selected for admission in view of her lower ranking. In view of the said submission, the said writ petition was dismissed. ( 3 ) DURING the previous academic year, namely, 1990-91, the petitioner being desirous of applying for admission to the entrance test, secured an application form. In view of the said submission, the said writ petition was dismissed. ( 3 ) DURING the previous academic year, namely, 1990-91, the petitioner being desirous of applying for admission to the entrance test, secured an application form. In the application, the eligibility as contained in Rule 4 (1) (b) of the Rules as amended on 12-9-1989, was incorporated. Consequently, the petitioner, not having passed M. B. B. S. examination from any of the Universities established in this State, presented this writ petition questioning the constitutional validity of the said Rule and seeking appropriate reliefs. After the petitioner presented the writ petition, she came to know that again the Rule had been amended by Notification 25-9-1990. Rule 4 (1) (b) of the Rules, as amended by the said Notification reads :"4. ELIGIBILITY : (1) No person shall be eligible to appear for the entrance test unless : xxx xxx xxx (b) he has passed the M. B. B. S. or B. D. S. Degree of any of the Universities established by law in India. Provided that no candidate other than an Indian citizen of Karnataka origin shall be eligible for appearing for the Entrance Test. The candidates, in order to prove that they are Indian citizens of Karnataka origin, have to produce certificates from the Tahsildar to show that he or she or his/her parent (father/mother) has been a resident of Karnataka State for a period of 10 years or has owned or possessed landed property or house in Karnataka State. "after coming to know of this, the petitioner filed an application challenging the above Rule and has sought for declaring the said Rule as constitutionally invalid. ( 4 ) THE learned counsel for the petitioner contended that the Rule under which citizens of India who have not been residents of Karnataka for a period of ten years, are rendered ineligible for admission to the entrance test for the purpose of selection for admission to Post-Graduate degree/diploma of the medical courses, has to be struck down as violative of Art. 14 of the Constitution of India. Elaborating the contention, the learned counsel submitted as follows: The Supreme Court in the case of D. P. Joshi v. State of Madhya Pradesh, AIR 1955 SC 334 , had held that in respect of admission to medical courses, it was competent for the State concerned to prescribe capitation fee for students coming from other States and such a condition was not violative of Art. 15 of the Constitution, for the reason that the word 'residence' was not used in clause (1) of Art. 15 and further such a condition was based on rational classification and had got nexus sought to be achieved, namely, the obligation of the State to provide facilities for medical education for bona fide residents of the State having due regard to its economic resources. The said view was reiterated by the Supreme Court in the case of Vasundhara v. State of Mysore, AIR 1971 SC 1439 . In the said case, R. 3 of the Rules for selection to M. B. B. S. Degree Course, framed by this State, under which residence and study in the educational institutions in this State for the period specified in the Rule, was made a condition of eligibility for admission to M. B. B. S. course in this State, was challenged before the Supreme Court on the ground that it was violative of Art. 14 of the Constitution. The Supreme Court reiterated its earlier decision in Joshi's case (AIR 1955 SC 534) and upheld the validity of the Rule. However, in the case of Pradeep Jain v. Union of India, AIR 1984 SC 1420 , the Supreme Court considered the two earlier decisions in the case of Joshi (AIR 1955 SC 534) and Vasundhara ( AIR 1971 SC 1439 ) and held that the ratio of those decisions was valid in so far as the M. B. B. S. degree course was concerned, subject to the condition that a certain percentage of seats in the M. B. B. S. degree course should be reserved by each State for admission to students coming from other States in the country. However, as regards Post-graduate courses are concerned, the Supreme Court held that in order to satisfy the requirement of Art, 14 of the Constitution, at least 50 per cent of the seats available for open competition in the post-graduate courses should be made available in favour of all the citizens, having regard to the importance of post-graduate qualification for the entire society as a whole. The Supreme Court held that in respect of other 50 per cent, it was open for the State to frame Rules according to its need and to prescribe condition of eligibility on the basis of institutional performance, namely, the condition to the effect that only students who had studied in the colleges of the State concerned, alone would be eligible. As regards super-specialities, however, the Supreme Court held that there can be no classification at all on the basis of residence or institutional preference, but selection for those seats must be made purely on the basis of merit having regard to the great importance of medical education in super-specialities for the society as a whole. Therefore, the impugned Rule which totally denies opportunity to citizens of non-Karnataka origin, unless they reside in this State, for a period of ten years, was void as offending Art. 14 of the Constitution. The learned counsel also relied on the judgment of this court in the case Lakshmi v. State of Karnataka, AIR 1988 Kar 43 , in which a rule framed by this State in respect of admission to Post-graduate courses in this State, was struck down as violative of Art, 14 of the Constitution, applying the ratio of the decision in Pradeep Jain case ( AIR 1984 SC 1420 ). The learned counsel submitted that the State Government had framed the impugned Rule in the teeth of the law declared by the Supreme Court in Pradeep Jain's case, though in the statement of objection the stand taken is that the rule was in conformity with the judgment of the Supreme Court in Pradeep Jain's case. The learned counsel submitted that the State Government had framed the impugned Rule in the teeth of the law declared by the Supreme Court in Pradeep Jain's case, though in the statement of objection the stand taken is that the rule was in conformity with the judgment of the Supreme Court in Pradeep Jain's case. He submitted that in view of the law laid down apart from the impugned Rule being unconsitutional, it was impermissible for the State to have made the impugned Rule disregarding the law declared by the Supreme Court, for, under the impugned Rule in respect of the entire number of seats available in post-graduate courses, students like the petitioner hailing from other States are rendered ineligible. ( 5 ) SRI Shivaramaiah, the learned Government Advocate, submitted that as stated in the statement of objection, in framing the impugned Rule the State Government had taken note of the law laid down by the Supreme Court in Pradeep Jain's case ( AIR 1984 SC 1420 ). He submitted that the decision of the Supreme Court in Pradeep Jain's case has been explained in the case of Dinesh Kumar v. Motilal Nehru Medical College, AIR 1986 SC 1877 . Relying on the above decision, the learned counsel submitted that the Rule framed by the Government was in conformity with the law declared by the Supreme Court in Pradeep Jain's case as explained in the subsequent judgment in the case of Dinesh Kumar. ( 6 ) THE question, therefore, for our consideration is, whether the impugned Rule is arbitrary and therefore, violative of Art. 14 of the Constitution of India and contrary to the ratio of the judgment in Pradeep Jain's case ( AIR 1984 SC 1420 ). The relevant portion of the judgment in Pradeep Jain's case, reads : "22. So much for admission to the MBBS course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to the post graduate courses, such as, M. D. , M. S. and the like. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. It was rightly pointed out by Krishna Iyer, J. in Jagdish Saran's case, AIR 1980 SC 820 , paras 23, 39 and 44 and we wholly endorse what he has said :"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 scale of speciality where the best skill or talent, must be hand-picked by selecting according to capability. At the level of Ph. D. , M. D, or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. ""if equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent, lying latent, can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless. " "secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post graduate or post doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists, not humdrum second rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post-graduate or post-doctoral"these passages from the judgment of Krishna Iyer, J. , clearly and forcibly express the same view which we have independently reached on our own and indeed that view has been so ably expressed in these passages that we do not think we can usefully add anything to what has already been said there. We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to post-graduate courses are concerned, for pampering local feeling, will boomerang. We may with advantage reproduce the recommendation of the Indian Medical Council on this point which may not be the last word in social wisdom but is certainly worthy of consideration :"student for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the Universities. "the Medical Education Review Committee has also expressed the opinion that "all admissions to the post-graduate courses in any institution should be open to candidates on an all India basis and there should be no restriction regarding domicile in the State / UT in which the institution is located. All selection for post-graduate studies should be conducted by the Universities. "the Medical Education Review Committee has also expressed the opinion that "all admissions to the post-graduate courses in any institution should be open to candidates on an all India basis and there should be no restriction regarding domicile in the State / UT in which the institution is located. " So also in the policy statement filed by the learned Attorney General, the Government of India has categorically expressed the view that :"so far as admissions to the institutions of post-graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all India merit subject to constitutional reservations in favour of Scheduled Castes and Scheduled Tribes. " we are therefore of the view that so far as admissions to post- graduate courses such at M. S. , M. D. , and the like are concerned, it Would eminently desirable not to provide for any reservation based on residence requirement within the State or on 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 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 postgraduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be 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 postgraduate 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 granted purely on merit on all India basis. But, even in regard to admissions to the postgraduate 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 granted purely on merit on all India basis. " (Underlining by us) the ratio of the above decision is clear, in that, in respect of post-graduate courses, 50 per cent of the seats available for general merit should be thrown open for all India competition. In the case of Dinesh Kumar ( AIR 1986 SC 1877 ), it was pointed out on behalf of Government of India that if the aforesaid principle were to hold the field, a State Government could increase the percentage of reservation for backward classes and thereby reduce the number of seats to be made available for all India competition. In the circumstances, the Supreme Court stated thus :"it would be open to a State Government to reduce the number of seats available for admission on the basis of All India Entrance Examination by increasing the number of reserved categories or by increasing the percentage of reservations. We, therefore, agree with the Government of India that the formula adopted by us in our main judgment dated 22/06/1984 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 l5% 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 student, in another State. 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 student, in another State. The same formula must apply also in regard to admissions to the post-graduate courses and instead of making available for admission on All India basis 50% of the open seats after taking into account reservations validly made, we would direct that not less than 25% 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. " (Underlining by us) from the above paragraph it is clear that the only modification made by the Supreme Court is that instead of reserving 50 per cent of the seats available for open competition for filling up through all India competition, 25 per cent of the total number of seats available in post-graduate courses have to be reserved for all India competition. But the impugned rule makes the condition of eligibility of Karnataka origin for all the seats. Therefore, there is no alternative than to hold that the rule to the extent it is contrary to the ratio of the decision in Pradeep Jain's case ( AIR 1984 SC 1420 ) (vide paragraph 22) read with the decision in Dinesh Kumar's case ( AIR 1986 SC 1877 ) (vide paragraph 5) is violative of Art. 14 and the petitioner is, therefore, entitled to an appropriate order. Further, as the seats available in post-graduate courses is subjectwise 25 per cent of the total number of seats available in each of the subjects, would be made available for all India competition. ( 7 ) ONE other point raised in the statement of objection was, that the State of Jammu and Kashmir and the State of Andhra Pradesh had not thrown open the required number of seats for all-India pool and therefore the citizens / residents of these two States have no right to compete in the all India entrance examination. ( 7 ) ONE other point raised in the statement of objection was, that the State of Jammu and Kashmir and the State of Andhra Pradesh had not thrown open the required number of seats for all-India pool and therefore the citizens / residents of these two States have no right to compete in the all India entrance examination. This objection is untenable as far as the petitioner is concerned, for, after her marriage, she is permanent resident of Karnataka and no longer a resident of the State of Jammu and Kashmir. ( 8 ) NOW coming to the relief that has to be granted to the petitioner, the learned counsel submitted that entrance test for the academic year 1991-92 is being held shortly during this month or in the early part of next month and therefore we should give a direction to the respondents to entertain the application of the petitioner and to admit her for the entrance test which is being held for the purpose of making selection for admission to the post-graduate courses. ( 9 ) IN the result, we make the following order : (i) The writ petition is allowed; (ii) A writ of mandamus shall issue to the respondents : (a) not to enforce R. 4 (1) (b) of the Karnataka Conduct of Entrance Test for Admission to Post-graduate Degree and Diploma (Medical and Dental) Courses Rules, 1987, as amended by Notification No. HFW 91 MPK 88 dated 25-9-1990 in respect of 25 per cent of the seats available in the Post-Graduate courses in each of the subjects in the Medical Colleges in this State; (b) to entertain the application of the petitioner and admit her to the entrance test scheduled to be held during this month or next month or thereafter for the purpose of making selection for admission to the post-graduate course in Optholomology and select her for admission if on the basis of her ranking she becomes entitled to be selected as against 25 per cent of the seats available in the said subject. Petition allowed. --- *** --- .