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IN THE HIGH COURT OF BOMBAY
Ashok A. Desai S.S. Parkar, JJ.
Miss Vaidhehi Subhash Natu ..... Petitioner.
Versus
State of Maharashtra others .... Respondents.
Writ Petition No. 2812 of 1997, decided on 5-9-1997.
Advocates appeared :
Anil V. Anturkar, for petitioner.
Mrs. S.S. Gokhale, A.G.P., for State.
Article 226-Rules for selection to MBBS and BDS course for 1997-98-Rules framed by the Medical Council of India are not discriminatory.-Objection that the Government cannot make rules, for the purpose of admission to Medical Course has to substance because the Rules are framed by the Medical Council of India. All that the Government has laid down is that the applicant must have passed apart from the HSC examination, SCC examination from the school in the State of Maharashtra. The said power is permissible so long as there is no total reservation.
Maharashtra Government Rules for Admission to Medical Colleges, 1996- 1997
Rule 3(b)-Ru1e for admission to Medical College-Candidates must have passed, SSC and HSC from Maharashtra State only-Contention-Rules are constituted by MCI and only condition is-Pass HSC No further condition can be put by State Government-Held-State Government is authorised to make supplement rules from time to time.- The said power of the Government to lay down, what is known as institutional preference, is permissible so long as there is no total reservation on the basis of residential or institutional preference.
In this case, the State Government has not made any rule as regards qualification for admission to the Medical course but, has only laid down the rules of preference in admission on the basis of institution, which is as per the above citations, permitted.
Rule 3(b)-MCI Rules for admission to Medical Colleges-Only passing of HSC-State Government putting additional conditions-Discrimination-Relaxation to children of Government officials posted outside State-Contention-Such discrimination is arbitrary-Held-Government servant do not enjoy as much liberty as is to private employees regarding posting.-But, so far as the Government employees are concerned, they have no choice or say in the matter of their transfers and because of the exigency of their services they have to accept their posting wherever they are sent. In that view of the matter the case of the petitioner cannot be put on par with the Government employees. The Supreme Court had carved out exception in the case of, Meenakshi Malik v. University of Delhi, AIR 1989 SC 1588, in respect of Government employee on the ground that he was compelled to leave India by reason of the posting by the Government and there was no real choice in the matter. On the other hand, the father of the petitioner in this case had secured employment abroad voluntarily of his own choice.
Rule 3(b)-Constitution of India, Articles 14, 15 and 226-Admission to Medical Colleges-MCI fixing HSC pass as qualification-Government making it as pass SSC and HSC from within State-Relaxation to Government employees-Contention No nexus with object of Medical education-Held-Same relaxation does not amount to any deviation from object of rules.-Mr. A contended that the object of the Rules is to select best students and the discrimination made between the Government employees and the private employees does not serve the object of selection of best students. The said submission is also without any substance because, the object of selection of best students cannot be said to have been deviated from simply because, the relaxation of condition is made in favour of the children of the Government employees as they have got no choice in the matter, it cannot, therefore, be said that the rule about merit is given go by in case of children of Government employees.
"(b) The applicant must have passed the S.S.C. or equivalent examination from Maharashtra.
Provided that for a child of any employee of Central Government or Government of India undertaking transferred to Maharashtra State and joined before the last date prescribed for submission of application and is in the service in jurisdiction of respective region, this condition would stand relaxed."
2. The petitioner has passed her H.S.C. examination from Ruparel College in Bombay, Maharashtra. The petitioner obtained 92.35 per cent marks in Physics, Chemistry and Biology Group. The petitioner's father was working in Baharain in Arabian Gulf where the petitioner was staying with him and, therefore, the petitioner has done her S.S.C. equivalent examination viz. C.B.S.E. viz. Central Board of Secondary Education from Indian School in I.S.A. Town, Bahrain, she passed her S.S.C. equivalent examination in the year 1995 securing 92.8 per cent marks. According to the petitioner ultimately with the aforesaid percentage of marks she was qualified to get admission for the medical course in the State of Maharashtra. However, as per the aforesaid Rule No. 3(b) which is framed by the Government of Maharashtra for the eligibility of applicants for admission in the Medical course, she cannot even apply for the said course although she was educationally qualified and had secured high percentage of marks which would enable her to obtain admission for the said course in the State of Maharashtra. The petitioner has, therefore, challenged the above rule on two grounds viz. that it is the Medical Council of India which is empowered to frame Rules in that behalf and the Rules framed by the Medical Council of India prescribe only qualification that the candidate must have passed H.S.C. Examination. The second challenge is on the ground that the impugned Rule makes discrimination between the children whose parents are employed in the private service and the children whose parents are employed with the Central Government or the State Government.
3. So far as the first contention is concerned that the Government cannot make Rules for the purpose of admission to the Medical course has no substance. The Medical Council of India has prescribed the rule that in order to get admission to the Medical course the candidate must have passed H.S.C. examination. That rule is not departed from by the Government. All that the Government has laid down is that the applicant must have passed apart from the H.S.C. examination, the S.S.C. examination also from any school in the State of Maharashtra. The said power of the Government to lay down, what is known as institutional preference, is permissible so long as there is no total reservation on the basis of residential or institutional preference. As far back as in the year 1955 in the case of (D.P. Joshi v. State of Madhya Pradesh)1, reported in A.I.R. 1955 S.C. 334 the Apex Court had held that the preference in admissions on the basis of residence as well as the institutional preference is permissible so long as there is no total reservation on the basis of residential or institutional preference. The said principle was reiterated by the Supreme Court in the case of (Jagadish Saran (Dr.) v. Union of India)2, reported in 1980(2) S.C.C. 768. Subsequently, in the case of (Pradeep Jain (Dr.) v. Union of India)3, reported in 1984(3) S.C.C. 654 the Supreme Court held that the reservation to the extent of 70 per cent on the basis of residence and institutional preference was permissible leaving 30 per cent of the seats to be made available on all India basis. Thereafter in the case of (Dinesh Kumar (Dr.) v. Motilal N
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