Judgment Anant S. Dave, J.—In this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of writ of mandamus or any other appropriate writ, order or direction to the respondent authorities to admit the petitioner TO the course of Master of Computer Application (in short “MCA”) and/or Master of Business Administration (in short “MBA”) as per her merit in Gujarat Common Entrance Test Examination, 2010 (in short “GCET”). The petitioner has also prayed to declare and hold that Rule 5(2) of Master of Computer Application (Regulation of Admission and Payment of Fees) Rules 2008 and Master of Business Administration Course (Regulation of Admission and Payment of Fees) Rules 2008, as arbitrary, unconstitutional and to quash and set aside the same. 2. The petitioner has studied in the school/college of Mumbai in the State of Maharashtra and completed her education in Bachelor of Science (Information Technology) in the First Class from Mumbai University in the year 2009. The marriage of the petitioner was solemnized on 12.12.2009 and thereafter she resided with her husband and in-laws in the State of Gujarat. On the basis of her graduation she initiated to pursue the post-graduation in the field of MCA or MBA and therefore she appeared in the Entrance Test called GCET on 6.7.2010 and passed the said examination. Since no call letter was issued to the petitioner for any of the above two courses namely, MCA or MBA, on inquiry it was learned that since the petitioner had passed her Higher Secondary Certificate Examination (HSCE) and Graduation Examination from Mumbai, she was held to be not eligible for being admitted to the above courses. According to the authority and Admission Committee, Rule 5(2) of MCA Rules 2008 and MBA Rules 2008 for being eligible for admission to the above two courses, a student should have passed a qualifying examination from a University situated in the Gujarat State or a University situated outside the Gujarat State provided the candidate shall have passed the Higher Secondary School Certificate Examination (Standard 12 i.e. 10+2 pattern) or its equivalent examination from a school which is located in the State of Gujarat. The petitioner, admittedly, completed her Higher Secondary and Graduation from Mumbai, State of Maharashtra, she was denied the admission in the above two courses. 3. Mr. The petitioner, admittedly, completed her Higher Secondary and Graduation from Mumbai, State of Maharashtra, she was denied the admission in the above two courses. 3. Mr. Paresh Upadhyay, Learned Counsel for the petitioner contended that denial on the part of the authorities to the petitioner for admission to the above two courses is illegal and arbitrary and Rule 5 itself is unconstitutional and voilative of Article 14, 15 and 21 of the Constitution of India. The above Rule is also voilative of provisions of Gujarat Technological University Act, 2007 which nagates the right to education and pursue Post Graduation study to the petitioner only on the ground of locality. It is further submitted that the object of Gujarat Technological University Act, 2007 (Act of 2007) is of development of knowledge of various faculties, including Engineering and Technology and for the advancement of life of mankind in general and also to provide inter-relationship for national and global participation in the fields of Science, Engineering, Technology and Management and, therefore, denial of admission by the authorities solely based on region or locality is contrary to Constitutional mandates guaranteed under Article 14, 15 and 21 of the Constitution of India and, therefore, the main communication deserves to be quashed and set aside. 3.1. Learned Counsel relied on the judgments passed by the Apex Court in the cases of (1) Pradeep Jain vs. Union of India & Ors. [ AIR 1984 Sc 1420 (1)] in Paras 20, 23 and 24 and (2) Saurabh Chaudri and Ors. vs. Union of India & Ors. [ AIR 2004 SC 361 ] in Paras 70, 71 and 72, where the Supreme Court held that reservation on the basis of residence requirement and institutional preference exclusively is violative of Article 14 of the Constitution of India. 3.2. Inter alia, Learned Counsel for the petitioner also referred to the objects and reasons and for brining about Gujarat Technological Univerity Act, 2007 and would contend that denial of admission would deprive the petitioner of global participation in the fields of Science, Engineering, Technology and Management and would be contrary to her growth as an individual in the above field. Such denial would also violate Articles 14 and 21 of the Constitution of India. 4. Mr. Such denial would also violate Articles 14 and 21 of the Constitution of India. 4. Mr. Prakash Jani, learned GP appearing for the respondent would submit that the Consitutional validity of the above rules on the basis of violation of Articles 14, 15 and 21 of the Constitution of India is tenable and there is no absolute or exclusive denial to a person or a student for being eligible to admission to two courses namely MCA and MBA on the basis of region and locality. According to learned GP, only prohibition is imposed for the student who have not passed their HSCE (Standard12 i.e. 10+2 pattern examination) or equivalent examination from a school not located in Gujarat State but incumbent can apply and consider for examination even if he or she has passed out from the University situated outside the Gujarat provided such candidate shall have passed the examination of HSCE or equivalent from a school located in Gujarat. The above preferences, according to learned GP is held within the power of the authority and in two identical cases of admission, the Division Bench of this Court in a case of Ronald Jagdish Thakore vs. Gujarat University Through Registrar & Anrs. in Special Civil Application No. 3950 of 2010 and allied matters and Special Civil Application No. 7406 of 2010 by CAV judgment dated 23.8.2010 in the case of Sidharth Jagdishbhai Panchal vs. Admission Committee for Professional Diploma Course (ACPDC) and reported decision in the case of Swayamprakash Pande, Medical Officer, Class-II vs. State of Gujarat & Ors.[ 2009(2) GLH 495 ] has held and such limited preference based on such limited inistutional preference based on region or locality is not ultra vires to Article 14 of the Constitution of India. Learned GP would submit that the decisions relied on by Learned Counsel for the petitioner were based on different set of facts and even as per law laid down by the Apex Court a reasonable reservation in favour of a student hailing from a region was made permissible. It is further submitted that language of Rule 5 of MCA and MBA Rules 2008 is in consonance with objects and reasons and provisions of Gujarat Technological University Act, 2007 and there is no denial to the petitioner to pursue Post Graduation course provided she fulfills the criteria prescribed in the Rules. It is further submitted that language of Rule 5 of MCA and MBA Rules 2008 is in consonance with objects and reasons and provisions of Gujarat Technological University Act, 2007 and there is no denial to the petitioner to pursue Post Graduation course provided she fulfills the criteria prescribed in the Rules. Therefore, according to learned GP the petition in absence of merit deserves no interference at the hand of this Court. 5. Having heard Learned Counsel appearing for the parties, perusal of relevant record of the case and Rule 5 for admission prescribed in eligibility for MCA and MBA respectively of the Rules 2008. It is necessary to refer to both the rules: MCA Rules 2008 “5. Eligibility for Admission:- (1) For the purpose of admission, a candidate shall have appeared in the Gujarat Common Entrance Test (GCET). (2) To appear in the Gujarat Common Entrance Test (GCET), a candidate shall have passed the qualifying examination form,- (a) a University situated in the Gujarat State; or (b) a University situated outside the Gujarat State provided the candidate shall have passed the Higher Secondary School Certificate Examination (Standard XII, 10+2 pattern) or its equivalent examination from,- (i) the Gujarat Board; or (ii) the Central Board of Secondary Education Board provided that the school in which the candidate has studied, should have been located in the State of Gujarat; or (iii) the Council of Indian School Certificate Examination, New Delhi Board provided that the school in which the candidate has studied should have been located in the State of Gujarat: Provided that a candidate shall have passed the Higher Secondary School Examination (Standard XII, 10+2 pattern) or Bachelors’ degree with Mathematics or Business Mathematics or Statistics as one of the subjects.” MBA Rules 2008 “5. Eligibility for Admission.—(1) For the purpose of admission, a candidate shall have appeared in the Gujarat Common Entrance Test (GCET). Eligibility for Admission.—(1) For the purpose of admission, a candidate shall have appeared in the Gujarat Common Entrance Test (GCET). (2) To appear in the Gujarat Common Entrance Test (GCET), a candidate shall have passed the qualifying examination with minimum of 50% marks (45% marks in case of Scheduled Castes or Scheduled Tribes candidates) from,— (a) a University situated in the Gujarat State; or (b) a University situated outside the Gujarat State provided the candidate shall have passed the Higher Secondary School Certificate Examination (Standard XII, 10+2 pattern) or its equivalent examination from,- (i) the Gujarat Board; or (ii) the Central Board of Secondary Education Board provided that the school in which the candidate has studied, should have been located in the State of Gujarat; or (iii) the Council of Indian School Certificate Examinations, New Delhi Board provided that the school in which the candidate has studied should have been located in the State of Gujarat.” 5.1. Both the above Rules prescribing eligibility criteria for admission for MCA as well as MBA and barring sub-Rule (2) of Rule 5 of MBA Admission Rules, which prescribe a candidate securing minimum 50% mark for General category and 45% marks in case of SC & ST for qualifying the examination namely GCET other requirements/criteria remain same. 6. A close look to the above Rules reveal that the legislature has prescribed eligibility criteria and preference is given to institution and keeping in mind law laid down by the Apex court in this regard in the case of Dr. Pradeep Jain vs. Union of India and Ors. [ AIR 1984 SC 1420 (1)], there is no absolute reservation and preference in favour of any institution. On the contrary a student who has passed out from the University situated in the State of Gujarat or who has passed out higher secondary (Standard XII 10+2 pattern) or its equivalent examination from Gujarat Board or CBSE or ICSE, provided the school in which the candidate has studied is located in the State of Gujarat is held eligible subject to fulfillment of securing minimum marks in the entrance test in the case of MBA entrance examination. Thus, it cannot be said that there is absolute reservation in favour of a student passing out his examination namely graduation or higher secondary or equivalent from the State of Gujarat only. Thus, it cannot be said that there is absolute reservation in favour of a student passing out his examination namely graduation or higher secondary or equivalent from the State of Gujarat only. Such requirement prescribed in the above Rules cannot be said to be contrary to Article 14, 15(1) or 16(2) of the constitution of India inasmuch as in the case of Dr. Pradeep Jain vs. Union of India and Ors.(Supra), the Supreme Court has in no uncertain terms has held that reservation on basis of residence requirement within the State and institutional preference was held permissible subject to reasonable percentage and reservation. The Apex Court while considering the concept of place of birth and domicile in the context of Article 5 of the Constitution of India held that so far admissions to an educational institution such as a medical college are concerned, Article 16(2) has no application. It has further held that if there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Article 16(2) nor can Article 16(2) be invoked for invalidating such residence requirement. The Apex Court further made it clear that residence and place of birth are two distinct conception with different connotations both in law and in fact while referring to the case of D.P. Joshi vs. State of Madhya Bharat [ AIR 1955 SC 334 ]. The Apex Court also referred to earlier decision in time in the case of Jagdish Saran vs. Union of India [ AIR 1980 SC 820 ] and reiterated that a fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit such is the dynamics of social justice which antimates the three eagalitarian articles of the Constitution and only fond that wholesale reservation on the basis of residence is unconstitutional being violative of Article 14 of the Constitution of India. So far as the extent of reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the university or the State be regarded as constitutionally permissible, the Apex Court laid down certain outer limits with regard to total number of open seats to be considered after taking into account other kinds of reservation validly made and finally in Paragraph 22 it was held as under:— “22. So much for admission to the M.B.B.S. 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 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 deterimental to the interest of the nation. It was rightly pointed out by Krishna Iyer, J. in Jagdish Saran’s case, 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 here the best skill or talent, must be handpicked 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 expended upon as important loss 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 then 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 no disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. The role of high grade skill or special talent may be less at the lesser levels of education, jobs no 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. 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-tune performance at the difficult highest of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting substandard 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 over ruling equality and quality all together, 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 in deed 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 boomeriang. 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 boomeriang. 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.” So also in the policy statement filed by the leaned 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 as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to border 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 in 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 M.B.B.S. Course from a medical college or university may be given preference for admission to the post-graduate course in the same medical colleges 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 M.B.B.S. course. But, even in regard, to admissions to the post-graduate 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.” 6.1. That another decision of the Apex Court in the case of Saurabh Chaudri and Ors. vs. Union of India and Ors. [ AIR 2004 Sc 361 ], the Apex Court reiterated the law laid down in Dr. Pradeep Jain vs. Union of India and Ors. (Supra) and also held that reservation on the basis of domicile is not impermissible in terms of Clause (1) of Article 15 of the Constitution of India and further held that institutional preference is not violative of Article 14 of the Constitution of India and extent of such preference was held to be 50%. 6.2. The above law as laid down by the Apex Court in the context of Rules framed pertaining to P.G. Degree and Diploma Course after completion of MBBS or equivalent qualification examination referred to above decisions namely Dr. Pradeep Jain vs. Union of India and Ors. (Supra) and Saurabh Chaudri and Ors. vs. Union of India and Ors. (Supra) in the case of Swayamprakash Pande vs. State of Gujarat & Ors. [ 2009 (2) GLH 495 ], this Court found it valid and reaffirmed the view in Karamsad Medical Association vs. State of Gujarat [ 2000 (2) GLR 1648 ] about rules providing for institutional preference which was upheld by the Apex Court and right of the university to lay down the eligibility criteria for admission. [ 2009 (2) GLH 495 ], this Court found it valid and reaffirmed the view in Karamsad Medical Association vs. State of Gujarat [ 2000 (2) GLR 1648 ] about rules providing for institutional preference which was upheld by the Apex Court and right of the university to lay down the eligibility criteria for admission. That, another decision of this Court in the case of Ronald Jagdish Thakor vs. Gujarat University Through Registrar delivered in Special Civil Application No. 3950 of 2010 with Special Civil Application No. 4622 of 2010 dated 5.5.2010 traced the term “preference” in the context of various statues and also with regard to relevant admission rules, was construed by the Apex Court that preference has to be construed to mean that other factors being equal, the candidate belonging to preferential group would be preferred over the others. Mere preference would not mean granting en-block admission/appointments ahead of all others. The Division Bench also referred to various case law of this Court as well as the Apex Court and cited (1) D.N. Chanchala vs. The State of Mysore and Ors. [ AIR 1971 Sc 1762 , (2) Dr. Dinesh Kumar and Ors. vs. Motilal Nehru Medical College, Ahmedabad & Ors. [ AIR 1986 SC 1877 ], Saurabh Chaudri and Ors. vs. Union of India and Ors. [ (2003) 11 SCC 146 ] and Swayamprakash Pande vs. State of Gujarat & Ors. [ 2009 (3) GLR 2104 ], where the Court were concerned with a separate quota for students passing from the local university or on the basis of domicile and held that such reservation in the form of institutional preference or domicile preference would not be per se illegal. 6.3. That, another decision of the Division Bench[per Hon’ble the Chief Justice S.J. Mukhopadhaya] dated 23.8.2010 delivered in Special Civil Application No. 7406 of 2010 in the case of Sidharth Jadgishbhai Panchal through Father Jagdish D Panchal vs. Admission Committee for Professional Diploma Course (ACPDC), while considering admission rules in the course of diploma in any of the Polytechnic Colleges in the State of Gujarat considered Rule 5 prescribing eligibility for admission was in pari materia to Rule 5 of MCA/MBA Rules of this case and in Paras 15 and 16 observed as under: “15. It has not been disputed that CBSE, CISCE, as also NIOS, all Boards have been constituted by the Education Department, Government of India. It has not been disputed that CBSE, CISCE, as also NIOS, all Boards have been constituted by the Education Department, Government of India. For all purposes, they are equivalent. It is also not in dispute that there are institutions in the State of Gujarat, including the institution in which the petitioner has studied, which is recognized by the NIOS and certificate is granted by NIOS. Previously, on behalf of the NIOS, CBSE used to grant the certificate and now after the decision of the Central Government, since 2002, it has been granted by NIOS. 16. It is true that the State Government can frame Rules and confine recognition of institution located within the State of Gujarat, though the Board may be located outside the State like CBSE or CISCE. If any institution is located outside the State of Gujarat, and if the Board which grants certificate is also located outside Gujarat, it is always open to the State not to allow the students of such institutions for admission in one or the other courses within the State, but it cannot discriminate among two institutions or Board similarly situated.” 6.4. At the same time Rule 5 of the above rules on par with Rule 5 of MCA and MBA of this case was not held ultra virus to Article 14 of the Constitution of India. 7. Considering the above aspects on facts as well as on law, none of the contentions including the challenge to Rule 5 is ultra virus to Article 14 of the Constitution of India as contended by Learned Counsel for the petitioner can be again tested on the touch stone of Articles 14, 15, 16 and 21 of the Constitution of India, since the law on this subject is no more res integra. 8. 8. Thus, the petitioner is neither a graduate from the University situated in the State of Gujarat nor passed out H.S.C.E. (Standard XII 10+2 pattern) or equivalent to that from the school situated in the State of Gujarat having affiliation to the Board of State of Gujarat or CBSE or ISCE is rightly refused admission by the Committee for Admission to professional courses and the petitioner is not discriminated on the basis of domicile or no preferential treatment is given and the approach of the Admission Committee while interpreting the Rule 5 for MCA as well as MBA, Rules 2008, cannot be said to be unreasonable, arbitrary or discriminatory being violative of Articles 14, 16 and 21 of the Constitution of India. No case is made out to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India and therefore, this petition is rejected. Notice discharged. P P P P P