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Municipal Corpn. OF Greater Bombay Versus Thukral Anjali Deo Kumar

C.A. 2792 of 1988 - Dated:- 7-3-1989 - Dutt, M.M., And Thommen, T.K., JJ. For the appearing : G. Ramaswamy, Additional Solicitor General, T.R. Andyarujuna, V.V. Vaze, V.M. Tarkude, D.N. Misra, M.D. Siodia, Pinaki Misra, P.H. Parekh, Ms. Sunita Sharma, A.M. Khanwilkar, A.S. Bhasme, Dalveer Bhandari, Vijay Thorat, Raian Karanjawala, Mrs. Manik Karanjawala, Ms. Meenakshi Arora, V.D. Khanna, Rameshwar Nath, B.R. Agarwal, P.K. Pillai, P.N. Gupta, Shri Narain, Madhuri Gokhale, Prangalia and N. Nettar .....

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By the impugned judgment, the High Court allowed the writ petitions out of which these appeals arise, and struck down the impugned rule 4(A) in whole and rule 5 (wrongly stated as rule 6 in the High Court judgment), in so far as it applies to the Government Medical College in the city of Bombay, as discriminatory and viola- tive of Article 14 of the Constitution and, accordingly, invalid. Rule 4(A) is as follows:- "4. PREFERENCE: (A) While selecting candidates for admission to the postgradu .....

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..... . While selecting from amongst eligi- ble candidates preference will be given to the students of that college i.e. who passed their final M.B.B.S. Examination from that college in Broad specialities and their ancillary discipline." There are four medical colleges in the city of Bombay, and affiliated to the University of Bombay. Of these four medical colleges, three are run and conducted by the Bombay Municipal Corporation, namely, Lokmanya Tilak Memorial Medical College (LTMMC), Seth .....

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n, were not also admitted in the other medical colleges in the city of Bombay, in view of collegewise institutional preference as provided by rule 4(A) in respect of three Municipal Colleges and by rule 5 relating to GMC, the Maharashtra Government College. The High Court, as stated already, struck down rule 4(A) and rule 5 in part and allowed the writ petitions. Hence these appeals by special leave. It is Urged by Mr. G. Ramaswamy, the learned Additional Solicitor General, that this Court in Dr .....

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is quite permissible and will not be hit by the provision of Article 14 of the Constitution. In Pradeep Jain's case, the question that has been considered by this Court as noted by Bhagwati, J. (as he then was) is whether, consistently with the constitutional values, admissions to a medical college or any other institution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of yea .....

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dmission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country, and that it would be against na- tional interest to admit in medical colleges or other insti- tutions giving instruction in specialities, less meritorious students when more meritorious students are available. So, wholesale reservation on the basis of domicile or residen- tial requirement within the State or on the basis of insti- tutional preference for students who have passed .....

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be reduced if the Indian Medical Council determines a shorter outer limit. The institutional preference that has been referred to in the observation of Bhagwati, J. does not at all relate to collegewise institutional preference, with which we are concerned. The learned Additional Solicitor General has, however, placed strong reliance on the following observation made by Bhagwati, J. in Pradeep Jain's case which is ex- tracted below:- "We are therefore of the view that so far as admissio .....

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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 .....

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admissions should be granted purely on merit on all India basis." It is urged by the learned Additional Solicitor General that in Pradeep Jain's case collegewise institutional pref- erence has been recognised and upheld, as is apparent from ,the above observation, particularly from the observation "a certain percentage of seats may, in the present circum- stances, be reserved on the basis of institutional prefer- ence in the sense that a student who has passed MBBS Course from a me .....

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not think that in making that observa- tion Bhagwati, J. had in his mind collegewise institutional preference. Any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made. As has been pointed out, the question that has been considered in Pradeep Jain's case relates to reservation of seats in medical colleges on the ground of domicile or residential qualification within the State irrespective of .....

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nce in matters of admission to M.D. Course. In the circumstances, we are unable to accept the contention of the learned Addi- tional Solicitor General that this Court in Pradeep's Jain's case has upheld or recognised collegewise institutional preference of seats in medical colleges for admission in M.D. Course. The position is clarified in a subsequent decision of this Court in Nidamarti Mahesh Kumar v. State of Maharashtra and others, [1986] 2 SCC 534 which related to the constitu- tion .....

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ing from that region because without reservation or preference students from such back- ward region will hardly be able to compete with those from advanced regions, since they would not have adequate oppor- tunity for development so as to be in a position to compete with others. Further, it has been observed that it would not be unconstitutional for the State to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in .....

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l education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reserva- tion or preference regionwise. There may be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and .....

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not be available and even if hostel facilities are available, the parents may hesitate to send them to the hotels. Even with regard to regionwise reservation of certain percentage of seats in medical colleges, except for the reasons mentioned above, this Court in Nidamarti's case has turned down the contention that the provision of the im- pugned rule, that is, students from a school or college situate within the jurisdiction of a particular university would not be eligible for admission to .....

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tutionally permissible. Thus, except in certain circum- stances, even regionwise reservation of seats in medical colleges has not been approved by this Court. In Pradeep Jain's case, merely because the expression "institutional preference" has been used with reference to a student pass- ing the MBBS Course from a medical college or a university, it does not necessarily follow that the Court had in its contemplation or was laying down collegewise institutional preference. In support .....

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writ petition should be dismissed, but he gave his own reasons. The reasons of Pathak, J. are, inter alia, con- tained in the following observations: "It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post-graduate studies. There is the strong argument of convenience, of stability and familiarity with an educational environment .....

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ds of scholarship, and has adjusted his responses and reactions accordingly. The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to the post-graduate classes also. Over the under-graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies. In .....

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a feature of the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone from a class between them- selves, and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference of the kind considered here does not offend the constitutional guarantee of equality." The above observations or reasons should not be read or understood deh .....

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in part for the post-graduate course in Medicine and as these graduates were not considered for admission into other universities, Delhi University had earmarked some seats at the post-graduate level in Medicine for the medical graduates of Delhi Univer- sity. By the impugened rule, 70 per cent of the seats at the post-graduate level was reserved for Delhi graduates and 30 per cent of the seats was kept open to all including gradu- ates of Delhi. It was, therefore, not a case of collegewise res .....

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llants, but the contention has to be rejected on a reference to the facts and the question involved in that case. It is, however, submitted by the learned Additional Solicitor General that there are some special facts and circumstances which justify collegewise reservation as provided by the impugned rules 4(A) and 5. It is stated by him that while the theoretical examinations in MBBS Course are conducted by the University, the practical examinations involving 50 per cent of the total marks are .....

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cted by a set of four examiners consisting of one internal examiner from the same college, one external examiner from one of the other three colleges and two exter- nal examiners from outside Bombay. Thus, excepting one internal examiner, three other examiners are external exam- iners and all those examiners are presumably appointed by the University. These examiners are of high academic quali- fications and we fail to understand why they would deviate from the standard prescribed by the Univers .....

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se of institutional preference, the dif- ferent marks given by different colleges do not affect the students, as it is the relative merit of the student in the same college which matters in the selection of post-graduate students. We do not find any justification for the apprehen- sion that if the institutional preference is removed and all the candidates from the University are pooled together, a process of dilution and undesirable racing are likely to start making a mockery of the examination .....

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ttached to each college. By way of illustration, it is stated that in the hospital attached to Lokmanya Tilak Memorial Medical College there is maximum load of trauma cases (accidents and injuries), the number of such cases is much higher than that in the hospital attached to the three other colleges. The under-graduate students in Lokmanya Tilak Memorial Medical College will have a wider exposure to these cases and will be far more suitable for seat in the post-graduate course in Surgery where .....

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s higher in standard in a particular subject than that in another college. It may be that the number of acce- dent and injury cases in the hospital attached to Lokmanya Tilak Memorial Medical College is higher than the number of such cases in the hospitals attached to other colleges, but that does not prove or lead to the conclusion that the students of other colleges will be deficient in surgery or less meritorious than the students of Lokmanya Tilak Memori- al Medical College. The contention i .....

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the meaning of Article 14 of the Constitution, two tests are to be satisfied, namely, (1) that there is an intelligible differentia which distinguishes persons grouped together from those who are left out of the group; and (2) that there is a rational nexus to the object sought to be achieved by the impugned rules. The object sought to be achieved by the impugned rules is obviously to prefer merit for the post-graduate course and to exclude less meritorious candidates. It will be presently demo .....

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in Obstetrics and Gynaecology and one seat in Topiwala Nationl Medical College (TNMC). In view of the impugned rules providing collegewise institutional preference, five seats in Obstetrics and Gynaecology in Seth G.S. Medical College were allotted to five of its students. Of these five students, Dr. Ganpat Sawant secured 150 marks and the four other candidates secured marks between 118 and 128 in the MBBS Examination. The respondents Dr. Anjali Deokumar Thuk- ral and Dr. Sumeet Godambe, both s .....

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said G.S. Medical College, except the said Dr. Ganpat Sawant, they were refused admission in view of collegewise institutional preference. Similarly, in respect of other disciplines many meritorious students could not get admission even though they secured higher marks than those admitted in the post-graduate degree course by virtue of the impugned rules. Thus, there is a patent discrimina- tion inasmuch as students obtaining lesser marks have been preferred to those obtaining higher marks. Ther .....

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e the same, any preference to candidates to the post-graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational insti- tutions. In such circumstances, collegewise institutional preference cannot be supported and, it has already been noticed that this Court has not approved of such preference at all. State of Rajasthan and another v. Dr. Ashok Kumar Gupta and others, [1989] 1 SCC 93 is a case of college-based .....

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that case and the impugned Ordinance has been struck down. The learned Additional Solicitor General sought to distinguish Dr. Ashok Kumar Gupta's case from the instant case. We do not think that the said case is distinguishable from the case with which we are concerned, inasmuch as in both the cases the question of collegewise or college-based institutional preference is involved. It is stated that mode or method adopted for giving collegewise institutional preference in Dr. Ashok Kumar Gup .....

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ellants that as the Bombay Municipal Corporation has to spend a lot of money for the running of the three colleges sponsored by it, seats for the postgraduate course should be reserved in these three colleges for the students passing the MBBS Examination from any of these colleges. If such reservation is allowed, the students of the Maharashtra Government College, namely, the Grant Medical College, will not get any admission in any of the three Municipal Colleges, even if the students or some of .....

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is contention, in our opinion, is without any substance. It may be that the Bombay Munici- pal Corporation has to spend a lot of money for the colleges run by it, but that will be no ground for making a discrimi- nation between the students of the Municipal Colleges and those of the Government College affiliated to the same university, for the purpose of admission in the post-gradu- ate degree course. Such discrimination will not serve any object which can be justified on any rational basis. Suc .....

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legewise institutional preference has been sought to be justified by the learned Additional Solicitor General is on the basis of institutional continui- ty. In support of this ground of institutional continuity, the learned Additional Solicitor General has placed much reliance on the observations of Pathak, J. in Jagdish Sa- ran's case, which has already been extracted above. It was not a case of collegewise institutional preference or insti- tutional continuity, and the said observations sh .....

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its application to the Grant Medical College in the city of Bombay relating to admission to post-graduate M.D. Course. We, however, make it clear that the students who have been admitted to post- graduate M.D. Course pursuant to the impugned rules, their admission shall not be interfered with or disturbed. At this state, we may consider the submission of Mr. Lalit, learned Counsel appearing on behalf of the applicants in C.M.P. No. 20748 of 1988 praying for their impleadment as party-respondent .....

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unicipal Corporation that if the impugned rules are struck down, they will have to frame fresh rules consistent with the judgment of this Court and, as we have directed not to disturb admission of the candidates in the post-graduate M.D. Course pursuant to the impugned rules, we consider the prayer made by the applicants as quite reasonable and, accordingly, direct that the applicants who have passed the diploma course in the Municipal Colleges after passing the MBBS Examination, will be eligibl .....

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