IMPORTANT POINT
Rule 5.5 of Rules governing admission to Postgraduate Degree and Diploma Medical Courses other than M.Ch. & D.M. at affiliated Medical Colleges/Institutions, 2016 is arbitrary and illegal.

R. Subhash Reddy, C.J.

1. RULE. Service of rule is waived by Mr. Dhawan Jayswal, learned Assistant Government Pleader for respondent No. 1-State of Gujarat; Mrs. V.D. Nanavati, learned advocate for respondent No. 2-Gujarat University; and Ms. Avni H. Pandya, learned advocate for respondents No. 3 and 4.

2. This writ petition is filed under Article 226 of the Constitution of India seeking directions by way of mandamus to the respondent No. 2-Gujarat University, to give admission to the petitioner as Scheduled Tribe candidate in Post Graduation Medical Course by quashing Rule 5.5 of the Rules governing the admission to Postgraduate Degree and Diploma Medical Courses other than M.Ch. & D.M. at the affiliated Medical Colleges/Institutions ('Rules' for brevity), framed by respondent No. 2-Gujarat University by Office Memorandum No. D 14/O.M.S.14, as illegal, arbitrary and ultra vires to the constitutional provisions.

3. The petitioner has completed his MBBS Course from M.P. Shah Medical College, Jamnagar in the year 2013. The petitioner is belonging to Scheduled Tribe and is desirous of getting admission in Post-graduate Degree and/or Diploma Course for the academic year 2016-17, from respondent No. 2- University and had appeared in entrance examination held by the University for the purpose of admission, with Seat No. 1620 and Registration No. 3013. The petitioner has secured 235 marks, whereas qualifying mark is 160. When respondent No. 2-University was not considering to grant admission to the petitioner based on impugned Rule 5.5 of the Rules of 2016, the petitioner has approached this Court.

4. Respondent No. 2-University is constituted under Gujarat University Act, 1949. Under section 32 of the Act, the University is empowered to frame rules on various subjects. For the purpose of admission to Post-graduate Degree and Diploma course, rules are framed vide proceedings No. O.M. D 14/O.M.S.14. As per rules of admission, 50% of the total available seats in academic year in various Post-graduate Degree and Diploma Course in each subject in Government institutions/colleges will be filled up on the basis of All India Competent Examination for admission to PG Medical Courses and the remaining seats will be available for candidates passing from Gujarat University. So far as self-financed colleges/institutions are concerned, 75% of the, total seats shall be filled by Admission Committee of the Gujarat University and the remaining 25% by management quota seats will be filled by Colleges/Institutes; 50% of the seats, other than seats covered by All India Competitive Examination, will be filled by the Admission Committee of the University. As per rules of admission, 7% of the seats are reserved for candidates belonging to scheduled caste, 15% of the seats, are reserved for scheduled tribe candidates and 27% of seats similarly are reserved for candidates belonging to Socially and Educationally Backward Class (SEBC), including widows and orphan children. There is specific rule providing preference to candidates graduated from Gujarat University for filling up of seats, to be made by Admission Committee of the University. In case, the seats which are reserved for Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class are lying vacant due to non availability of candidates of the specified category, from the candidates of respondent No. 2-University, those seats shall be treated as unreserved seats and will be filled up by the candidates eligible for open market on the basis of merit. Though the petitioner, who is qualified in Entrance Examination belonging to Scheduled Tribe category and has passed MBBS not from respondent No. 2-University, but he has passed from other medical college within the State of Gujarat. Primarily, it is the case of the petitioner in the writ petition that there is no basis or any intelligent differentia for restructuring reserved category seats only for the candidates of respondent No. 2