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2001 DIGILAW 67 (PAT)

Pallab Mazumdar v. State Of Bihar

2001-01-23

SHIVA KIRTI SINGH

body2001
Judgment 1. This writ application has been filed by seven Doctors who completed their MBBS course in the State of Bihar but are not domiciles of Bihar and on this account alone i.e. on account of being residents of outside Bihar, they are facing ineligibility to take PGMAT-2000, a test conducted by Bihar Combined Entrance Competitive Examination Board for admission to Post-graduate courses in various medical colleges situated within the State of Bihar. The obstacle in the way of their eligibility is clause 5.2 introduced for the first time in the Prosepectus for PGMAT-2000 which requires that the candidate in order to be eligible for appearing in PGMAT-2000 must also be a resident of Bihar. Besides that, clause 5.2 further requires that any one of the candidates father-mother/husband-wife must be a permanent resident of Bihar or must be in Bihar Government service or in one of the specified All India service allotted to Bihar or public sector undertaking of Government of India or in Defence Service posted in Bihar at the time of filling up the application. 2. At the stage of admission of this case, by order dated 8-5-2000 this Court took notice of observations of the Apex Court in the last part of paragraph 22 of the judgment in the case of Pradeep Jain V/s. Union of India AIR 1984 SC 1420 wherein the Apex Court clearly observed that it would be desirable not to provide for any reservation based on residence requirement within the State and on that basis, permitted the petitioners to take the examination if they fulfil other eligibility criteria. It was further observed by this Court that their admission shall be subject to result of this writ application and after the publication of result it shall be open for either of the parties to move the Court for earlier hearing of the case. 3. It was further observed by this Court that their admission shall be subject to result of this writ application and after the publication of result it shall be open for either of the parties to move the Court for earlier hearing of the case. 3. At the stage of hearing also learned counsel for the petitioner placed reliance upon judgments of the Apex Court in the case of Pradeep Jain (supra) and in the case of Parag Gupta V/s. University of Delhi, AIR 2000 SC 2319 and also upon recommendations of Medical Council of India on Postgraduate Medical Education (Annexure-4) to submit that the Apex Court has clearly disapproved of any residential eligibility criteria for admission into Post-graduate medical education; even institutional preference received limited disapproval in the case of Pradeep Jain (supra) and according to recommendations of the Medical Council which has been adopted and approved as "Regulation under S.33 of the Indian Medical Council Act, 1956" merit alone has been recognised as crierion for admission to Post-graduate medical courses which may be evaluated either by performance at the MBBS examination and during the course of internship and houseman-ship or through a competitive entrance examination. 4. The judgment of the Apex Court in the case of Parag Gupta ( AIR 2000 SC 2319 ) (supra) was further clarified by a judgment as reported in AIR 2000 SC 2766 but the said judgment dealt with a different situation where the candidates had been admitted to MBBS course outside their State and on that ground, were being deprived of eligibility to participate in the entrance examination in their home State. The Apex Court did not approve of such a policy and later on clarified that the judgment was to protect only those candidates who had been admitted to MBBS courses outside their State against 15% central quota. In this judgment the Apex Court clarified that it was not called upon to decide the larger issues relating to reservation based upon residence and /or institution requiring detail examination of the effect of earlier decisions of that Court. 5. The judgment of the Apex Court in the case of Pradeep Jain ( AIR 1984 SC 1420 ) (supra) is relevant to the issue raised on behalf of the petitioners. 5. The judgment of the Apex Court in the case of Pradeep Jain ( AIR 1984 SC 1420 ) (supra) is relevant to the issue raised on behalf of the petitioners. In paragraph 22 of the said judgment the Court quoted with approval parts of judgment of Supreme Court in Jagdish Sharans case AIR 1980 SC 820 to highlight the view that at the level of Ph.D., M.D. or levels of higher proficiency the criteria of merit and excellence cannot be diluted without grave risk. The Apex Court further went on to hold "we are, therefore, of the view that so far as admissions to Postgraduate courses, such as M.S., M.D. and the like are concerned, it would be imminently desirable not to provide for any reservation based upon residence requirement within the State or of institutional preference". No doubt, with regard to institutional preference the Court observed that in given circumstances it may be permissible not in excess of 50% and not at all with regard to admissions to the Post-graduate course in super speciality such as Neuro surgery and cardiology. 6. The recommendations of the Medical Council of India approved as Regulation under S.33 of the Indian Medical Council Act, 1956 also prima facie supports the contentions of the petitioners that merit alone has been approved as criterion for admission to Post-graduate medical courses. 7. On the other hand Mr. P.K. Shahi, learned counsel appearing for the respondent No.3, the Bihar Combined Competitive Examination Board through its controller, placed reliance upon judgment of the Apex Court in the case of Dr. 7. On the other hand Mr. P.K. Shahi, learned counsel appearing for the respondent No.3, the Bihar Combined Competitive Examination Board through its controller, placed reliance upon judgment of the Apex Court in the case of Dr. Dinesh Kumar reported in (1986) 3 SCC 727 ; ( AIR 1986 SC 1877 ), in the case of Anand S. Biji reported in (1993) 3 SCC 80 as well as upon some observations in the case of Parag Gupta ( AIR 2000 SC 2319 ) (supra) to submit that subsequent to the judgment in the case of Pradeep Jain ( AIR 1984 SC 1420 ) (supra), the Apex Court reconsidered the issue of reservation on the basis of residence within a State and institutional preference even for Post-graduate course such as M.D., M.S. and approved schemes and proposals which have the effect of keeping 15% of all the seats in a State for MBBS, BDS courses open for being filled up through a combined entrance examination and similarly 25% of seats for Postgraduate courses have also been left open for being filled up on merit alone irrespective of any reservation. Such percentage of seats are treated as central quota and the remaining seats have been permitted as State quota for which the respective State Governments are permitted to provide for reservations in accordance with law and their policy decision. According to Mr. Shahi, the State of Bihar has acted as per the scheme approved by the Apex Court for the purpose of bringing about uniformity and desirable extent of equality in the matter of appointment into medical and Post-graduate courses of medical education throughout the country. Relevant schedule (schedule I) to the Prospectus for PGMAT-2000 was highlighted to show that for post-graduate degree course 251 are in the State quota and 83 have been treated as All India seats. Similarly for diploma courses 205 seats fall within the State quota and 65 are All India seats. 8. Thus, according to learned counsel for respondent No.3, the State of Bihar has provided the requisite percentage of All India seats for the central quota for the postgraduate degree/diploma courses in the State of Bihar. Similarly for diploma courses 205 seats fall within the State quota and 65 are All India seats. 8. Thus, according to learned counsel for respondent No.3, the State of Bihar has provided the requisite percentage of All India seats for the central quota for the postgraduate degree/diploma courses in the State of Bihar. According to him, in such circumstances the respondent authorities are justified to treat the State quota seats available only for those who are residents of Bihar or are domiciled in the State of Bihar as per clause 5.2 of the Prosepectus. 9. In substance, the argument on behalf of respondent No.3 is that no doubt, judgment of the Apex Court in the case of Pradeep Jain ( AIR 1984 SC 1420 ) disapproved the residence requirement or domicile as a ground for reservation in admissions to postgraduate courses, by later judgments in the case of Dr. Dinesh Kumar ( AIR 1986 SC 1877 ) which were reported in four parts, the Apex Court permitted such reservation on the condition of making available requisite number of open seats for admission of students on All India basis purely on merit. As per further submission, this legal position is supported by conclusions of the Apex Court recorded in paragraph 7 of its judgment in the case of Parag Gupta ( AIR 2000 SC 2319 ) (supra). 10. In view of rival contentions noticed above, it is necessary to carefully examine the various judgments of the Apex Court in the case of Dinesh Kumar V/s. Moti Lal Nehru Medical College ( AIR 1986 SC 1877 ). These four judgments are admittedly an off shoot of decision in Dr. Pradip Jains case and depict the mode in which follow up action was taken at the instance of the Apex Court. These four judgments are reported in (1) (1985) 3 SCC 22 : ( AIR 1985 SC 1059 ) ; (2) (1986) 3 SCC 727 : ( AIR 1986 SC 1877 ); (3) (1987) 4 SCC 122 : ( AIR 1987 SC 2396 ) and (4) (1987) 4 SCC 459 . These four judgments are reported in (1) (1985) 3 SCC 22 : ( AIR 1985 SC 1059 ) ; (2) (1986) 3 SCC 727 : ( AIR 1986 SC 1877 ); (3) (1987) 4 SCC 122 : ( AIR 1987 SC 2396 ) and (4) (1987) 4 SCC 459 . Paragraph 6 of the first judgment, paragraph 1 of the second judgment and paragraph 1 of the fourth judgment mentioned above, clearly support the submission on behalf of the petitioners that the Apex Court while dealing with postgraduate courses such as MD and MS and the like continued to reiterate its views in the case of Pradeep Jain ( AIR 1984 SC 1420 ) (supra) that residential requirement within the State should not be a ground for reservation in admissions to Post-graduate courses but in such matter institutional preference not exceeding 50% of the total number of seats was found to be permissible. Some observation in paragraph 7 in the case of Parag Gupta ( AIR 2000 SC 2319 ) does show that the rule of "preference" on the basis of domicile or requirement of residence is not bad provided it is within reasonable limit and does not result in reserving more than permissible percentage. This view was expressed after noticing several earlier judgment including one of the Apex Court in the case, sanjay Ahlawat V/s. Maharishi Dayanand University, reported in (1995) 2 SCC 762 : (1995AIR SCW 228), wherein with respect to a rule providing for admission to post graduate medical courses and granting preference to local students by adding 10 extra marks, the Court sustained the validity of the rule though it provided for preference on the basis of domicile. However, in the case of Parag Gupta as well as in the case of Sanjay Ahlawat, the judgment in the case of Pradip Jain was noticed without any reservation expressed against the view expressed therein with regard to non-permissibility of any reservation on the basis of domicile or residence in the matter of admission into postgraduate courses of medical education. However, in the case of Parag Gupta as well as in the case of Sanjay Ahlawat, the judgment in the case of Pradip Jain was noticed without any reservation expressed against the view expressed therein with regard to non-permissibility of any reservation on the basis of domicile or residence in the matter of admission into postgraduate courses of medical education. In fact, in the case of Sanjay Ahlawat the rule providing for preference was upheld by distinguishing the judgment in the case of Pradip Jain and by holding that the rule in question provided for no reservation at all as only preference was given to local boys graduating from medical colleges outside Haryana and also to Graduates of medical college, Rohtak. 11. Thus, it is found that the view of the Apex Court to the effect that no reservation is permissible on the basis of domicile or residence in a particular State in the matter of admission into Post-graduate courses such as MD. MS and the like still holds the fields and has not been overruled in any later judgment of the Apex Court brought to the notice of this Court in course of hearing of this case. It does appear from judgment in the case of Sanjay Ahlawat (1995 AIR SCW 228) that preference on the basis of domicile has been upheld by holding that such preference does not amount to reservation and does not prevent the outside candidates from competing in the entrance examination subject to a resonable rule of preference in favour of local candidates. 12. In the present case with regard to the entire 75% of seats in the State quota a reservation has been created, in favour of candidates who have the domicile or residence within the State of Bihar. This is the effect of clause 5.2 of the Prospectus which is under challenge. It is apparent from clause 5.1 of the same Prospectus that in order to be eligible for the competitive test the candidate is also required to have passed MBBS examination from any University/ Medical college of Bihar State. Thus, the domicile or residence requirement for all the seats available under the State quota is in addition to institutional reservation for all such seats on the basis of location of University/Medical College within the Bihar State. Thus, the domicile or residence requirement for all the seats available under the State quota is in addition to institutional reservation for all such seats on the basis of location of University/Medical College within the Bihar State. The effect is that candidates like the petitioners who get the benefit of institutional preference under clause 5.1, since having passed MBBS examination from colleges of Bihar are deprived of this benefit because of clause 5.2 providing for reservation on ground of residence or domicile. Such dual reservation clearly creates undue hardship to candidates like the petitioners and acts arbitrarily to their prejudice by taking away the possible advantages of institutional reservation. In such circumstances, atleast to the extent clause 5.2 affects the rights of such candidates like the petitioners who have passed MBBS examination from University/Medical College of Bihar State, must be held to be arbitrary and impermissible in law. Since such a declaration would be sufficient to grant requisite relief to the petitioners, this Court would not like to examine the vires of clause 5.2 with regard to other category of candidates who are not before this Court. 13. In the result, this writ application is allowed to the extent indicated above with a direction that the concerned respondents shall consider claims of the petitioners and similarly Situated other candidates in accordance with law without taking into consideration the residential/domicile requirements contained in clause 5.2 of the Prospectus for PGMAT=2000. If the admission of such candidates has been withheld only on account of present controversy then the same should be expedited so as to complete the necessary formalities within three weeks. In the facts of the case, there shall be no order as to costs.Order accordingly.