“Institutional Preference” for Post Graduate Medical Admissions is the core issue involved in these appeal/petitions. = The decision of this Court in the case of Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional Preference has been distinguished by a Constitution Bench of this Court in the case of Saurabh Chaudri(supra). Therefore, once the Institutional Preference to the extent of 50% of the total number of open seats has held to be permissible, in that case, thereafter it will be for the appropriate authority/State to consider how much percentage seats are to be reserved for Institutional Preference/Reservation. It will be in the realm of a policy decision and this Court cannot substitute the same, unless it is held to be arbitrary and/or mala fide and/or not permissible.
As observed hereinabove, a five Judge Bench of this Court in the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the post graduate medical courses to the extent of 50% of the total number of open seats.
Therefore, for the reasons stated above and considering the decisions of this Court in the cases of Dr. Pradeep Jain (supra); a Constitution Bench decision of this Court in the case of Saurabh
Chaudri (supra); and Saurabh Dwivedi (supra), Institutional Preference to the extent of 50% is approved and it is observed and held that introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation.
Such a regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even otherwise, as observed hereinabove, even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7939 OF 2019
(Arising from SLP(C) No. 7003 of 2017)
Yatinkumar Jasubhai Patel and others …Appellants
Versus
State of Gujarat and others …Respondents
WITH
WRIT PETITION (C) NO. 122 OF 2018
WRIT PETITION(C) NO. 1479 OF 2018
WRIT PETITION (C) NO. 1142 OF 2019
J U D G M E N T
M.R. SHAH, J.
Leave granted in the special leave petition.
1
2. The “Institutional Preference” for Post Graduate Medical
Admissions is the core issue involved in these appeal/petitions.
3. Pursuant to the order passed by a two Judge Bench of this
Court dated 12.09.2018, all these appeal/petitions are placed
before the larger Bench.
4. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 22.02.2017 passed by the Division
Bench of the High Court of Gujarat in Special Civil Application
No. 19918/2016, by which the Division Bench has dismissed the
said writ petition upholding the vires of Rules 2, 3, 4.1 and 4.3
relating to admission to the Post Graduate Medical Courses
framed by the Gujarat University providing that the preference
shall be given to the candidates graduating from the Gujarat
University (providing for “Institutional Reservation”), the original
writ petitioners have preferred the special leave petition/appeal.
Thus, the original writ petitioners are challenging the
“Institutional Preference” in the Post Graduate Medical Courses.
4.1 Writ Petition (C) No. 1479 of 2018 under Article 32 of the
Constitution of India has been preferred by the petitioners also
challenging the policy of “Institutional Preference” for admission
to the Post Graduate Medical Courses insofar as respondent no.3
2
– University of Delhi and respondent no.4 – Guru Gobind Singh
Indraprastha University is concerned. Similar prayers are made
in Writ Petition (C) No. 122/2018 and Writ Petition(C) No.
1142/2019 also challenging the policy of “Institutional
Preference” in the Post Graduate Medical Courses.
4.2 For the sake of convenience, Civil Appeal arising from
Special Leave Petition(C) No. 7003/2017 arising out of the
impugned judgment and order dated 22.02.2017 passed by the
High Court of Gujarat is treated and considered as a lead matter
and the relevant rules of the Gujarat University relating to
admission to the Post Graduate Medical Courses framed by the
Gujarat University are considered.
5. In exercise of powers under Section 39 read with Section 32
of the Gujarat University Act, 1949, the Gujarat University has
framed the rules for the purpose of governing admission to Post
Graduate Courses. The relevant Rules are Rules 2, 3, 4.1, 4.2
and 4.3, which read as under:
“2. As per directive of Hon’ble Supreme Court of India,
New Delhi, 50% of total available seats in Academic year
in various post graduate degree and diploma courses in
each subject in Government Institution/Colleges will be
filled up as a All India Quota Seats as per All India 50%
quota rank by competent authority. The remaining seats
3
will be available for the candidates passing from Gujarat
University in accordance with Rule 4.1. The student
passing from other statutory Universities within Gujarat
State will be considered as per their merit in accordance
with Rule 4.3.
3. Remaining 50% (or more) of total seats after Rule
2.0 (and Rule 2.1) in post graduate courses will be filled
up by the “Admission Committee” of University.
4.0 Selection: Selection of candidates eligible under
rule 1 for seats under rule 3.0 will be done category and
status wise on the basis of merits as laid down herein
further.
4.1 Preference shall be given to candidates graduating
from Gujarat University.
4.2 Deleted.
4.3 After the merit list prepared under Rule 4.1 is
exhausted the candidates graduating from any other
University located in Gujarat State will be considered.”
5.1 As per the aforesaid Rules, 50% of the total available seats
in the academic year in various Post Graduate Degree and
Diploma Courses in each subject in Government
Institution/Colleges will be filled up as “All India Quota Seats” by
competent authority and the remaining seats will be filled up in
accordance with Rule 4.1 of the Rules of the University. As per
Rule 3 of the Rules, remaining 50% of the total seats in Post
Graduate Courses will be filled up by the “Admission Committee”
4
of University. As per Rule 4.3 of the Rules, after merit list
prepared under rule 4.1 is exhausted, candidates graduating
from any other University located in Gujarat State will be
considered.
5.2 The original writ petitioners challenged the vires of the
aforestated Rules providing “Institutional Preference” – giving
preference to the candidates graduating from Gujarat University
mainly on the ground that in view of introduction of the National
Eligibility Entrance Test (hereinafter referred to as ‘NEET’) and
the admissions are to be given solely on the basis of the merits
and the marks obtained in the NEET, the Rules providing
“Institutional Preference” shall be violative of the Indian Medical
Council Act, 1956 and the Post Graduate Medical Education
Regulations, 2000 framed under the Indian Medical Council Act.
That by the impugned judgment and order and after considering
the decisions of this Court in the cases of Dr. Pradeep Jain v.
Union of India reported in 1984 (3) SCC 654; and Saurabh
Chaudri v. Union of India reported in 2003 (11) SCC 146 and after
considering the scheme of the NEET (PG), the High Court has
dismissed the said petition holding the “Institutional Preference”.
5
Hence, the present appeal challenging the policy of “Institutional
Preference” in the Post Graduate Medical Courses.
6. Learned counsel appearing for the writ petitioners have
vehemently submitted that it is true that earlier – prior to the
introduction of the NEET, the “Institutional Preference” in the
Post Graduate Medical Courses is held to be permissible.
However, in view of the introduction of the NEET which brings
about the change to the effect that all admissions to the Post
Graduate Medical Courses should be only on the basis of merit in
the NEET, as per Regulation 9 of the Post Graduate Medical
Education Admission Regulations, 2000, now “Institutional
Preference” would not be permissible and the same shall be ultra
vires the Medical Council Act and the Regulations, 2000 and
contrary to the scheme of the NEET.
6.1 It is vehemently submitted by the learned counsel for the
writ petitioners that the purpose due to which such “Institutional
Reservation” was held permissible by this Court no longer exists
as now there exists 50% All India Quota and the admission is
also done on the basis of an All India Examination – NEET.
6.2 It is further submitted by the learned counsel for the writ
petitioners that even the MCI Regulations for the Post Graduate
6
Admissions, namely, Regulations, 2000 do not permit
“Institutional Reservation”. It is submitted that the MCI
Regulations have been held by this Court to be a complete Code
and therefore no reservations could be provided unless the same
is permitted under the regulations. In support of the above,
reliance is placed upon the decision of this Court in the case of
State of U.P. v. Dinesh Singh Chauhan reported in (2016) 9 SCC
749.
7. So far as the Delhi University and Guru Gobind Singh
Indraprastha University are concerned, it is submitted by the
learned counsel for the respective petitioners that under the MCI
Regulations, admissions are to be done only by way of two lists,
i.e., (i) 50% seats on the basis of “All India Merit List”; and (ii)
50% seats to be filled on the basis of “Statewise List”. It is
submitted that the admissions to the State Quota seats in the
aforesaid two Universities are not being done on unified “Statewise List” but both the universities are preparing two separate
“Universitywise” lists which is not in accordance with the MCI
Regulations.
7.1 It is further submitted by the learned counsel for the
respective petitioners that the two universities have provided
7
“Institutional Reservation” to an extent of 100% of the State
Quota seats, i.e., the entire State quota has been reserved for
their alumni completely denying opportunity of selection to other
State candidates. It is submitted that the petitioners being
MBBS graduates from the State of NCT of Delhi are entitled to be
considered under the State quota seats. It is submitted that at
present because of the “Institutional Reservation”, the petitioners
are not entitled to be considered under the State quota at all. It
is submitted that therefore 100% “Institutional Reservation”
cannot at all be permitted even if it is otherwise held to be
permissible.
8. It is further submitted by the learned counsel for the writ
petitioners that in the case of Dr. Pradeep Jain (supra),
“Institutional Preference” was limited to 50% of the total number
of open seats. It is submitted that the same was held to be
permissible at a time when 100% seats in the State colleges were
filled up by the State. It is submitted that in the case of AIIMS
Students’ Union v. AIIMS reported in (2002) 1 SCC 428, the
“Institutional Reservation” was permitted only to an extent of
25%. It is submitted that similarly in the case of Dr. Saurabh
Chaudhary (supra), the “Institutional Preference” was permitted
8
to the extent of 50%. It is submitted that even if this Court holds
the “Institutional Preference” permissible, in that case, the same
should be limited to the 50% of the total number of State quota
seats.
9. All these appeal/petitions are vehemently opposed by the
learned Advocates appearing on behalf of the respective States,
respective Universities and the learned counsel appearing on
behalf of the MCI. Learned counsel appearing on behalf of the
respective respondents have vehemently submitted that, as such,
the “Institutional Preference” is held to be permissible by this
Court right from 1971. It is submitted that the issue involved
with respect to “Institutional Preference” is now not res integra in
view of the decisions of this Court in the cases of D.N. Chanchala
v. State of Mysore reported in (1971) 2 SCC 293; Dr. Pradeep Jain
(supra); a Constitution Bench judgment in the case of Saurabh
Chaudri (supra); and Gujarat University v. Rajiv Gopinath Bhatt
reported in (1996) 4 SCC 60. It is submitted therefore now it will
not be open for the petitioners to again reagitate the issue with
respect to “Institutional Preference”. It is submitted that the
relevant regulations prescribing “Institutional Preference” are
9
absolutely in consonance with the law laid down by this Court in
the aforesaid decisions.
9.1 Learned counsel appearing on behalf of the MCI, while
opposing the present appeal/petitions, has vehemently submitted
that admission to Post Graduate Medical Courses in the medical
colleges is done on the basis of the NEET merit and 50% seats
are filled up on merit drawn on “All India basis” and 50% seats
are filled up on merit drawn on “Statewise basis”. It is
submitted that earlier the Gujarat University used to hold
examinations for Post Graduate Medical Courses and now
instead of such test by the Gujarat University, merit is to be
determined on the basis of NEET examination results. It is
submitted that the National Board of Examinations is entrusted
with the job of holding NEET test for admission to Post Graduate
Medical Courses. It is submitted that as per the information
bulletin issued by the National Board of Examination, 50% of the
available seats are All India Quota seats and the remaining seats
are to be filled either by the State Government or Colleges or
Universities at the institute level using NEETPG score and as per
the applicable regulations and/or eligibility criteria, reservation
policy, etc. It is submitted that for the remaining 50% seats, it is
10
left open for the State Government and Government Agency to
make admission in such colleges, universities and institutions
following the score obtained by the students in the NEET
examination. It is submitted therefore that holding of common
examination cannot lead to invalidity of “Institutional Preference”
as has been held permissible by this Court in catena of decisions.
It is further submitted that after uniform entrance examination
through NEET, provisions of Section 10D does not debar source
from which admissions are to be made at the post graduate level.
9.2 Making the above submissions, it is prayed to dismiss the
present appeal/writ petitions.
10. The short question which is posed for consideration of this
Court is, whether after the introduction of the NEET Scheme, still
the “Institutional Preference” in the Post Graduate Medical
Courses would be permissible?
10.1 At the outset, it is required to be noted that, as such, and it
is not in dispute that such “Institutional Preference” in the Post
Graduate Medical Courses is held to be permissible by this Court
in catena of decisions, more particularly a three Judge bench
decision of this Court in the case of Dr. Pradeep Jain (supra); a
Constitution Bench decision of this Court in the case of Saurabh
11
Chaudri (supra); and in the case of Saurabh Dwivedi v. Union of
India reported in (2017) 7 SCC 626.
10.2 In the case of Dr. Pradeep Jain (supra), it is observed and
held by this Court as under:
“We are therefore of the view that so far as admissions to
postgraduate courses, such as MS, MD 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 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 in admissions to postgraduate 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 postgraduate 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 neurosurgery 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 allIndia basis.”
[emphasis supplied]
12
10.3 Thereafter, a five Judge Bench of this Court in the case of
Saurabh Chaudri (supra) has reiterated the scheme of
“Institutional Preference” as framed in Dr. Pradeep Jain (supra)
and has approved the “Institutional Preference” confined to 50%
of the total number of open seats. In that decision, this Court
also took note of the subsequent decision in the case of Dinesh
Kumar (Dr.) (II) v. Motilal Nehru Medical College, reported in (1986)
3 SCC 727 fixing the “Institutional Preference” to the extent of
25%. However, after taking note of the said decision, this Court
has reiterated the scheme framed in Dr. Pradeep Jain (supra)
providing “Institutional Preference” confined to 50% of the total
number of open seats. In the case of Saurabh Dwivedi (supra),
this Court has again approved the “Institutional Preference”.
Thus, right from 1971 onwards till 2017, consistently this Court
has approved and/or permitted the “Institutional Preference” in
the Post Graduate Medical Courses.
However, it is the case on behalf of the petitioners that in
view of the introduction of the NEET Scheme and in view of
Section 10D of the MCI Act, by which admissions are to be given
on the basis of the merit in the NEET, such an “Institutional
13
Preference” would not be permissible. It is required to be noted
that introduction of the NEET has, as such, nothing to do with
any preference/Institutional Preference, more particularly the
“Institutional Preference” as approved by this Court time and
again. The purpose and object of the introduction of the NEET
was to conduct a uniform entrance examination for all medical
educational institutions at the undergraduate level or postgraduate level and admissions at the undergraduate level and
postgraduate level are to be given solely on the basis of the
merits and/or marks obtained in the NEET examination only. It
is required to be noted that earlier the respective universities
including the Gujarat University used to hold examination for
postgraduate admission to medical courses and now instead of
such tests by the Gujarat University/concerned universities,
merit is to be determined on the basis of the NEET examination
results only and admissions are required to be given on the basis
of such merits or marks obtained in NEET. The only obligation
by virtue of introduction of NEET is that, once centralized
admission test is conducted, the State, its agencies, universities
and institutions cannot hold any separate test for the purpose of
admission to PostGraduate and PG and Diploma Courses and
14
such seats are to be filled up by the State agencies,
universities/institutions for preparing merit list as per the score
obtained by the applicants in NEET examination and therefore by
introduction of the NEET, Section 10D of the MCI, Act has been
amended, consequently amendment to the PostGraduate
Education Regulations, 2000, admission to Post Graduate
Courses are made providing for solely on the basis of the score
secured by the candidates seeking admission based on
centralized examination, i.e., NEET.
10.4 Even while giving admissions in the State
quota/institutional reservation quota, still the admissions are
required to be given on the basis of the merits determined on the
basis of the NEET examination results. Under the circumstances,
introduction of the NEET Scheme, as such, has nothing to do
with the “Institutional Preference”. Therefore, the change by
introduction of the NEET Scheme shall not affect the Institutional
Preference/Reservation as approved by this Court from time to
time in catena of decisions, more particularly the decisions
referred to hereinabove. Under the guise of introduction of the
NEET Scheme, the petitioners cannot be permitted to reagitate
and/or reopen the issue with respect to Institutional Preference
15
which has been approved and settled by this Court in catena of
decisions, more particularly the decisions referred to hereinabove.
11. Now so far as the submission on behalf of the petitioners
that if the 50% seats are reserved for State quota and if
institutional preference/reservation is permitted to the extent of
50% of the total number of open seats, in that case, not a single
seat in the State quota shall be available and therefore the
percentage of Institutional Preference may be reduced to the
extent of 25% or so is concerned, at the outset, it is required to
be noted that as such the Institutional Preference to the extent of
50% of the total number of open seats has been approved by this
Court in catena of decisions, more particularly the decisions
referred to hereinabove. The decision of this Court in the case of
Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional
Preference has been distinguished by a Constitution Bench of
this Court in the case of Saurabh Chaudri(supra). Therefore,
once the Institutional Preference to the extent of 50% of the total
number of open seats has held to be permissible, in that case,
thereafter it will be for the appropriate authority/State to
consider how much percentage seats are to be reserved for
Institutional Preference/Reservation. It will be in the realm of a
16
policy decision and this Court cannot substitute the same, unless
it is held to be arbitrary and/or mala fide and/or not permissible.
As observed hereinabove, a five Judge Bench of this Court in the
case of Saurabh Chaudri (supra) has categorically
allowed/permitted/approved the Institutional
Preference/Reservation in the post graduate medical courses to
the extent of 50% of the total number of open seats.
12. Therefore, for the reasons stated above and considering the
decisions of this Court in the cases of Dr. Pradeep Jain (supra); a
Constitution Bench decision of this Court in the case of Saurabh
Chaudri (supra); and Saurabh Dwivedi (supra), Institutional
Preference to the extent of 50% is approved and it is observed
and held that introduction of the NEET Scheme shall not affect
such Institutional Preference/Reservation. Such a regulation
providing 50% Institutional Preference/Reservation shall not be
in any way ultra vires to Section 10D of the MCI Act. Even
otherwise, as observed hereinabove, even in the case of
Institutional Preference/Reservation, the admissions in the post
graduate courses are to be given on the basis of the merits and
marks obtained in the NEET examination result only.
17
In view of the above and for the reasons stated above, all
these appeal/writ petitions deserve to be dismissed and are
accordingly dismissed. No costs.
……………………………………..J.
[ARUN MISHRA]
……………………………………..J.
[M.R. SHAH]
NEW DELHI; ……………………………………..J.
OCTOBER 04, 2019. [B.R. GAVAI]
18
As observed hereinabove, a five Judge Bench of this Court in the case of Saurabh Chaudri (supra) has categorically allowed/permitted/approved the Institutional Preference/Reservation in the post graduate medical courses to the extent of 50% of the total number of open seats.
Therefore, for the reasons stated above and considering the decisions of this Court in the cases of Dr. Pradeep Jain (supra); a Constitution Bench decision of this Court in the case of Saurabh
Chaudri (supra); and Saurabh Dwivedi (supra), Institutional Preference to the extent of 50% is approved and it is observed and held that introduction of the NEET Scheme shall not affect such Institutional Preference/Reservation.
Such a regulation providing 50% Institutional Preference/Reservation shall not be in any way ultra vires to Section 10D of the MCI Act. Even otherwise, as observed hereinabove, even in the case of Institutional Preference/Reservation, the admissions in the post graduate courses are to be given on the basis of the merits and marks obtained in the NEET examination result only.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7939 OF 2019
(Arising from SLP(C) No. 7003 of 2017)
Yatinkumar Jasubhai Patel and others …Appellants
Versus
State of Gujarat and others …Respondents
WITH
WRIT PETITION (C) NO. 122 OF 2018
WRIT PETITION(C) NO. 1479 OF 2018
WRIT PETITION (C) NO. 1142 OF 2019
J U D G M E N T
M.R. SHAH, J.
Leave granted in the special leave petition.
1
2. The “Institutional Preference” for Post Graduate Medical
Admissions is the core issue involved in these appeal/petitions.
3. Pursuant to the order passed by a two Judge Bench of this
Court dated 12.09.2018, all these appeal/petitions are placed
before the larger Bench.
4. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 22.02.2017 passed by the Division
Bench of the High Court of Gujarat in Special Civil Application
No. 19918/2016, by which the Division Bench has dismissed the
said writ petition upholding the vires of Rules 2, 3, 4.1 and 4.3
relating to admission to the Post Graduate Medical Courses
framed by the Gujarat University providing that the preference
shall be given to the candidates graduating from the Gujarat
University (providing for “Institutional Reservation”), the original
writ petitioners have preferred the special leave petition/appeal.
Thus, the original writ petitioners are challenging the
“Institutional Preference” in the Post Graduate Medical Courses.
4.1 Writ Petition (C) No. 1479 of 2018 under Article 32 of the
Constitution of India has been preferred by the petitioners also
challenging the policy of “Institutional Preference” for admission
to the Post Graduate Medical Courses insofar as respondent no.3
2
– University of Delhi and respondent no.4 – Guru Gobind Singh
Indraprastha University is concerned. Similar prayers are made
in Writ Petition (C) No. 122/2018 and Writ Petition(C) No.
1142/2019 also challenging the policy of “Institutional
Preference” in the Post Graduate Medical Courses.
4.2 For the sake of convenience, Civil Appeal arising from
Special Leave Petition(C) No. 7003/2017 arising out of the
impugned judgment and order dated 22.02.2017 passed by the
High Court of Gujarat is treated and considered as a lead matter
and the relevant rules of the Gujarat University relating to
admission to the Post Graduate Medical Courses framed by the
Gujarat University are considered.
5. In exercise of powers under Section 39 read with Section 32
of the Gujarat University Act, 1949, the Gujarat University has
framed the rules for the purpose of governing admission to Post
Graduate Courses. The relevant Rules are Rules 2, 3, 4.1, 4.2
and 4.3, which read as under:
“2. As per directive of Hon’ble Supreme Court of India,
New Delhi, 50% of total available seats in Academic year
in various post graduate degree and diploma courses in
each subject in Government Institution/Colleges will be
filled up as a All India Quota Seats as per All India 50%
quota rank by competent authority. The remaining seats
3
will be available for the candidates passing from Gujarat
University in accordance with Rule 4.1. The student
passing from other statutory Universities within Gujarat
State will be considered as per their merit in accordance
with Rule 4.3.
3. Remaining 50% (or more) of total seats after Rule
2.0 (and Rule 2.1) in post graduate courses will be filled
up by the “Admission Committee” of University.
4.0 Selection: Selection of candidates eligible under
rule 1 for seats under rule 3.0 will be done category and
status wise on the basis of merits as laid down herein
further.
4.1 Preference shall be given to candidates graduating
from Gujarat University.
4.2 Deleted.
4.3 After the merit list prepared under Rule 4.1 is
exhausted the candidates graduating from any other
University located in Gujarat State will be considered.”
5.1 As per the aforesaid Rules, 50% of the total available seats
in the academic year in various Post Graduate Degree and
Diploma Courses in each subject in Government
Institution/Colleges will be filled up as “All India Quota Seats” by
competent authority and the remaining seats will be filled up in
accordance with Rule 4.1 of the Rules of the University. As per
Rule 3 of the Rules, remaining 50% of the total seats in Post
Graduate Courses will be filled up by the “Admission Committee”
4
of University. As per Rule 4.3 of the Rules, after merit list
prepared under rule 4.1 is exhausted, candidates graduating
from any other University located in Gujarat State will be
considered.
5.2 The original writ petitioners challenged the vires of the
aforestated Rules providing “Institutional Preference” – giving
preference to the candidates graduating from Gujarat University
mainly on the ground that in view of introduction of the National
Eligibility Entrance Test (hereinafter referred to as ‘NEET’) and
the admissions are to be given solely on the basis of the merits
and the marks obtained in the NEET, the Rules providing
“Institutional Preference” shall be violative of the Indian Medical
Council Act, 1956 and the Post Graduate Medical Education
Regulations, 2000 framed under the Indian Medical Council Act.
That by the impugned judgment and order and after considering
the decisions of this Court in the cases of Dr. Pradeep Jain v.
Union of India reported in 1984 (3) SCC 654; and Saurabh
Chaudri v. Union of India reported in 2003 (11) SCC 146 and after
considering the scheme of the NEET (PG), the High Court has
dismissed the said petition holding the “Institutional Preference”.
5
Hence, the present appeal challenging the policy of “Institutional
Preference” in the Post Graduate Medical Courses.
6. Learned counsel appearing for the writ petitioners have
vehemently submitted that it is true that earlier – prior to the
introduction of the NEET, the “Institutional Preference” in the
Post Graduate Medical Courses is held to be permissible.
However, in view of the introduction of the NEET which brings
about the change to the effect that all admissions to the Post
Graduate Medical Courses should be only on the basis of merit in
the NEET, as per Regulation 9 of the Post Graduate Medical
Education Admission Regulations, 2000, now “Institutional
Preference” would not be permissible and the same shall be ultra
vires the Medical Council Act and the Regulations, 2000 and
contrary to the scheme of the NEET.
6.1 It is vehemently submitted by the learned counsel for the
writ petitioners that the purpose due to which such “Institutional
Reservation” was held permissible by this Court no longer exists
as now there exists 50% All India Quota and the admission is
also done on the basis of an All India Examination – NEET.
6.2 It is further submitted by the learned counsel for the writ
petitioners that even the MCI Regulations for the Post Graduate
6
Admissions, namely, Regulations, 2000 do not permit
“Institutional Reservation”. It is submitted that the MCI
Regulations have been held by this Court to be a complete Code
and therefore no reservations could be provided unless the same
is permitted under the regulations. In support of the above,
reliance is placed upon the decision of this Court in the case of
State of U.P. v. Dinesh Singh Chauhan reported in (2016) 9 SCC
749.
7. So far as the Delhi University and Guru Gobind Singh
Indraprastha University are concerned, it is submitted by the
learned counsel for the respective petitioners that under the MCI
Regulations, admissions are to be done only by way of two lists,
i.e., (i) 50% seats on the basis of “All India Merit List”; and (ii)
50% seats to be filled on the basis of “Statewise List”. It is
submitted that the admissions to the State Quota seats in the
aforesaid two Universities are not being done on unified “Statewise List” but both the universities are preparing two separate
“Universitywise” lists which is not in accordance with the MCI
Regulations.
7.1 It is further submitted by the learned counsel for the
respective petitioners that the two universities have provided
7
“Institutional Reservation” to an extent of 100% of the State
Quota seats, i.e., the entire State quota has been reserved for
their alumni completely denying opportunity of selection to other
State candidates. It is submitted that the petitioners being
MBBS graduates from the State of NCT of Delhi are entitled to be
considered under the State quota seats. It is submitted that at
present because of the “Institutional Reservation”, the petitioners
are not entitled to be considered under the State quota at all. It
is submitted that therefore 100% “Institutional Reservation”
cannot at all be permitted even if it is otherwise held to be
permissible.
8. It is further submitted by the learned counsel for the writ
petitioners that in the case of Dr. Pradeep Jain (supra),
“Institutional Preference” was limited to 50% of the total number
of open seats. It is submitted that the same was held to be
permissible at a time when 100% seats in the State colleges were
filled up by the State. It is submitted that in the case of AIIMS
Students’ Union v. AIIMS reported in (2002) 1 SCC 428, the
“Institutional Reservation” was permitted only to an extent of
25%. It is submitted that similarly in the case of Dr. Saurabh
Chaudhary (supra), the “Institutional Preference” was permitted
8
to the extent of 50%. It is submitted that even if this Court holds
the “Institutional Preference” permissible, in that case, the same
should be limited to the 50% of the total number of State quota
seats.
9. All these appeal/petitions are vehemently opposed by the
learned Advocates appearing on behalf of the respective States,
respective Universities and the learned counsel appearing on
behalf of the MCI. Learned counsel appearing on behalf of the
respective respondents have vehemently submitted that, as such,
the “Institutional Preference” is held to be permissible by this
Court right from 1971. It is submitted that the issue involved
with respect to “Institutional Preference” is now not res integra in
view of the decisions of this Court in the cases of D.N. Chanchala
v. State of Mysore reported in (1971) 2 SCC 293; Dr. Pradeep Jain
(supra); a Constitution Bench judgment in the case of Saurabh
Chaudri (supra); and Gujarat University v. Rajiv Gopinath Bhatt
reported in (1996) 4 SCC 60. It is submitted therefore now it will
not be open for the petitioners to again reagitate the issue with
respect to “Institutional Preference”. It is submitted that the
relevant regulations prescribing “Institutional Preference” are
9
absolutely in consonance with the law laid down by this Court in
the aforesaid decisions.
9.1 Learned counsel appearing on behalf of the MCI, while
opposing the present appeal/petitions, has vehemently submitted
that admission to Post Graduate Medical Courses in the medical
colleges is done on the basis of the NEET merit and 50% seats
are filled up on merit drawn on “All India basis” and 50% seats
are filled up on merit drawn on “Statewise basis”. It is
submitted that earlier the Gujarat University used to hold
examinations for Post Graduate Medical Courses and now
instead of such test by the Gujarat University, merit is to be
determined on the basis of NEET examination results. It is
submitted that the National Board of Examinations is entrusted
with the job of holding NEET test for admission to Post Graduate
Medical Courses. It is submitted that as per the information
bulletin issued by the National Board of Examination, 50% of the
available seats are All India Quota seats and the remaining seats
are to be filled either by the State Government or Colleges or
Universities at the institute level using NEETPG score and as per
the applicable regulations and/or eligibility criteria, reservation
policy, etc. It is submitted that for the remaining 50% seats, it is
10
left open for the State Government and Government Agency to
make admission in such colleges, universities and institutions
following the score obtained by the students in the NEET
examination. It is submitted therefore that holding of common
examination cannot lead to invalidity of “Institutional Preference”
as has been held permissible by this Court in catena of decisions.
It is further submitted that after uniform entrance examination
through NEET, provisions of Section 10D does not debar source
from which admissions are to be made at the post graduate level.
9.2 Making the above submissions, it is prayed to dismiss the
present appeal/writ petitions.
10. The short question which is posed for consideration of this
Court is, whether after the introduction of the NEET Scheme, still
the “Institutional Preference” in the Post Graduate Medical
Courses would be permissible?
10.1 At the outset, it is required to be noted that, as such, and it
is not in dispute that such “Institutional Preference” in the Post
Graduate Medical Courses is held to be permissible by this Court
in catena of decisions, more particularly a three Judge bench
decision of this Court in the case of Dr. Pradeep Jain (supra); a
Constitution Bench decision of this Court in the case of Saurabh
11
Chaudri (supra); and in the case of Saurabh Dwivedi v. Union of
India reported in (2017) 7 SCC 626.
10.2 In the case of Dr. Pradeep Jain (supra), it is observed and
held by this Court as under:
“We are therefore of the view that so far as admissions to
postgraduate courses, such as MS, MD 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 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 in admissions to postgraduate 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 postgraduate 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 neurosurgery 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 allIndia basis.”
[emphasis supplied]
12
10.3 Thereafter, a five Judge Bench of this Court in the case of
Saurabh Chaudri (supra) has reiterated the scheme of
“Institutional Preference” as framed in Dr. Pradeep Jain (supra)
and has approved the “Institutional Preference” confined to 50%
of the total number of open seats. In that decision, this Court
also took note of the subsequent decision in the case of Dinesh
Kumar (Dr.) (II) v. Motilal Nehru Medical College, reported in (1986)
3 SCC 727 fixing the “Institutional Preference” to the extent of
25%. However, after taking note of the said decision, this Court
has reiterated the scheme framed in Dr. Pradeep Jain (supra)
providing “Institutional Preference” confined to 50% of the total
number of open seats. In the case of Saurabh Dwivedi (supra),
this Court has again approved the “Institutional Preference”.
Thus, right from 1971 onwards till 2017, consistently this Court
has approved and/or permitted the “Institutional Preference” in
the Post Graduate Medical Courses.
However, it is the case on behalf of the petitioners that in
view of the introduction of the NEET Scheme and in view of
Section 10D of the MCI Act, by which admissions are to be given
on the basis of the merit in the NEET, such an “Institutional
13
Preference” would not be permissible. It is required to be noted
that introduction of the NEET has, as such, nothing to do with
any preference/Institutional Preference, more particularly the
“Institutional Preference” as approved by this Court time and
again. The purpose and object of the introduction of the NEET
was to conduct a uniform entrance examination for all medical
educational institutions at the undergraduate level or postgraduate level and admissions at the undergraduate level and
postgraduate level are to be given solely on the basis of the
merits and/or marks obtained in the NEET examination only. It
is required to be noted that earlier the respective universities
including the Gujarat University used to hold examination for
postgraduate admission to medical courses and now instead of
such tests by the Gujarat University/concerned universities,
merit is to be determined on the basis of the NEET examination
results only and admissions are required to be given on the basis
of such merits or marks obtained in NEET. The only obligation
by virtue of introduction of NEET is that, once centralized
admission test is conducted, the State, its agencies, universities
and institutions cannot hold any separate test for the purpose of
admission to PostGraduate and PG and Diploma Courses and
14
such seats are to be filled up by the State agencies,
universities/institutions for preparing merit list as per the score
obtained by the applicants in NEET examination and therefore by
introduction of the NEET, Section 10D of the MCI, Act has been
amended, consequently amendment to the PostGraduate
Education Regulations, 2000, admission to Post Graduate
Courses are made providing for solely on the basis of the score
secured by the candidates seeking admission based on
centralized examination, i.e., NEET.
10.4 Even while giving admissions in the State
quota/institutional reservation quota, still the admissions are
required to be given on the basis of the merits determined on the
basis of the NEET examination results. Under the circumstances,
introduction of the NEET Scheme, as such, has nothing to do
with the “Institutional Preference”. Therefore, the change by
introduction of the NEET Scheme shall not affect the Institutional
Preference/Reservation as approved by this Court from time to
time in catena of decisions, more particularly the decisions
referred to hereinabove. Under the guise of introduction of the
NEET Scheme, the petitioners cannot be permitted to reagitate
and/or reopen the issue with respect to Institutional Preference
15
which has been approved and settled by this Court in catena of
decisions, more particularly the decisions referred to hereinabove.
11. Now so far as the submission on behalf of the petitioners
that if the 50% seats are reserved for State quota and if
institutional preference/reservation is permitted to the extent of
50% of the total number of open seats, in that case, not a single
seat in the State quota shall be available and therefore the
percentage of Institutional Preference may be reduced to the
extent of 25% or so is concerned, at the outset, it is required to
be noted that as such the Institutional Preference to the extent of
50% of the total number of open seats has been approved by this
Court in catena of decisions, more particularly the decisions
referred to hereinabove. The decision of this Court in the case of
Dinesh Kumar (Dr. )(II) (supra) permitting 25% Institutional
Preference has been distinguished by a Constitution Bench of
this Court in the case of Saurabh Chaudri(supra). Therefore,
once the Institutional Preference to the extent of 50% of the total
number of open seats has held to be permissible, in that case,
thereafter it will be for the appropriate authority/State to
consider how much percentage seats are to be reserved for
Institutional Preference/Reservation. It will be in the realm of a
16
policy decision and this Court cannot substitute the same, unless
it is held to be arbitrary and/or mala fide and/or not permissible.
As observed hereinabove, a five Judge Bench of this Court in the
case of Saurabh Chaudri (supra) has categorically
allowed/permitted/approved the Institutional
Preference/Reservation in the post graduate medical courses to
the extent of 50% of the total number of open seats.
12. Therefore, for the reasons stated above and considering the
decisions of this Court in the cases of Dr. Pradeep Jain (supra); a
Constitution Bench decision of this Court in the case of Saurabh
Chaudri (supra); and Saurabh Dwivedi (supra), Institutional
Preference to the extent of 50% is approved and it is observed
and held that introduction of the NEET Scheme shall not affect
such Institutional Preference/Reservation. Such a regulation
providing 50% Institutional Preference/Reservation shall not be
in any way ultra vires to Section 10D of the MCI Act. Even
otherwise, as observed hereinabove, even in the case of
Institutional Preference/Reservation, the admissions in the post
graduate courses are to be given on the basis of the merits and
marks obtained in the NEET examination result only.
17
In view of the above and for the reasons stated above, all
these appeal/writ petitions deserve to be dismissed and are
accordingly dismissed. No costs.
……………………………………..J.
[ARUN MISHRA]
……………………………………..J.
[M.R. SHAH]
NEW DELHI; ……………………………………..J.
OCTOBER 04, 2019. [B.R. GAVAI]
18
