M.M.DUTT - (1.) THE principal point involved in these appeals relates to the constitutional validity of rule 4(.A) of the Rules framed by the Bombay Municipal Corporation for admission to post-graduate degree and diploma courses in its medical colleges framed on 18/06/1988 and, rule 5 framed under the Government Resolution dated 18/06/1971 for admission to the Government Medical College, both the rules providing for collegewise institutional preference for admission in the M. D. Course. 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 violative 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 post-graduate courses preference will be given in the following order :- (a) Candidates applying for admission at the parent institution. (Note: Parent institution means the medical college at which the candidate has passed his qualifying examination). (b) Candidates who have graduated from other Municipal Medical Colleges in Brihan Mumbai." Relevant portion of rule 5 framed under the Government Resolution dated 18/06/1971 reads as follows :- "5. . ... While selecting from amongst eligible 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."
(2.) 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 G. S. Medical College (GSMC) and Topiwalla National Medical College (TNMC). The only college that is being run by the Maharashtra Government in the city of Bombay is Grant Medical College (GMC). It is not necessary to state in details the facts leading to the filing of the writ petitions before the High Court out of which these appeals arise. Suffice it to say that some candidates who were not admitted in the M. D. Course in the respective colleges from which they had passed their MBBS Examination, 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. Pradeep Jain v. Union of India, (1984) 3 SCR 942: (AIR 1982 SC 1420) has given sufficient indication of its approval of collegewise institutional preference. While the learned Additional Solicitor General frankly concedes that he is not in a position to support cent per cent institutional preference or reservation of seats for admission in the M.D. Course in the Municipal Colleges and the Government College in the city of Bombay, such preference or reservation in respect of certain percentage of seats 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 years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State, irrespective of merit. The question that has been formulated and considered does not show, on the face of it, that collegewise institutional preference was also involved as a part of the question. It has been ruled in Pradeep Jain's case that effort must always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country, and that it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available. So, wholesale reservation on the basis of domicile or residential requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State excluding all students not satisfying this requirement, regardless of merit, has been condemned. The Court took the view that reservation of seats based on residential requirement within the State or on institutional preference should, in no event, exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made, the 70 per cent reservations needs to be reduced if the Indian Medical Council determines a shorter outer limit.
(3.) THE institutional prefrence 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 (AIR 1984 SC 1420) which is extracted below : "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 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 M.B.B.S. course from a medical college of 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." It is urged by the learned Additional Solicitor General that in Pradeep Jain's case collegewise institutional preference 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 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 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". It is true the expression "institutional preference has been used in the said observation in respect of a medical college or a university, but we do not think that in making that observation 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 (AIR 1984 SC 1420) relates to reservation of seats in medical colleges on the ground of domicile or residential qualification within the State irrespective of merit. It was not the case of anybody that reservation of seats should be made on the ground of collegewise institutional preference. The institutional preference that was considered in the case was universitywise institutional preference and not collegewise institutional preference. It is also apparent from the judgment of Amarendra Nath Sen, J., who delivered a separate but concurring judgment, that the Court had no occasion to consider the question of collegewise institutional preference in matters of admission to M.D. Course. In the circumstances, we are unable to accept the contention of the learned Additional Solicitor General that this Court in Pradeep Jain's case has upheld or recognised collegewise institutional, preference of seats in medical colleges for admission in. M.D. Course.;