R.SUBHASH REDDY,J. - (1.) This petition under Article 226 of the Constitution of India is filed by the petitioners who have completed their M.B.B.S. course and/or undergoing their Internship Programme challenging the vires of Rules 2, 3, 4.1 and 4.3 relating to admission to the Post Graduate Medical Courses framed by Respondent No.3 - Gujarat University. 3rd Respondent - University is a body constituted under the Gujarat University Act, 1949. Aforesaid impugned Rules are framed in exercise of powers under Section 39 read with Section 32 of the Gujarat University Act, 1949 for the purpose of governing admission to Post Graduate Courses. Said Rules 2, 3, 4.1, 4.2 and 4.3 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 will be available for the candidates passing from Gujarat University in accordance 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."
(2.) As per 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 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" of University. As per Rule 4.1 of the Rules, preference is provided to the candidates graduating from Gujarat 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.
(3.) The case of the petitioners is as under :- [3.1] In this petition, it is the say of the petitioners that National Eligibility Entrance Test (NEET) is designed to ensure that except merit there is no other criteria for making admission to Post Graduate and Under Graduate courses. It is stated that the petitioners who are students seeking to secure admission to Post Graduate Courses ar affected by impugned Rules. [3.2] In the petition it is stated that impugned Rules are ultra vires in view of various judgments of the Hon'ble Supreme Court and also violative of the Indian Medical Council Act, 1956 and the Post Graduate Medical Education Regulations, 2000 framed under the Indian Medical Council Act. [3.3] It is stated in the petition that in the State of Gujarat there are various colleges imparting education in Post Graduate Medical Courses in Medical faculty affiliated to various Universities throughout the State. Out of total number of seats for Post Graduate Medical Courses available in each of the colleges, 50% of the seats are reserved for students of All India Quota and remaining seats are for State Quota. In the 50% of State Quota, normal practice was that each University/Institution would hold its own separate entrance examination and allocation of seats in these institutions was on the basis of their own students getting priority in admission in first and second list, whereas, any student not having studied in the same University/Institution would get admission in third preference. [3.4] Reference is made to Notifications dated 21.12.2010 and 31.05.2012 issued by the Medical Council of India to hold Single Entrance Examination, for admission into Medical Courses for Graduate and Post Graduate Students, which were challenged before the Hon'ble Supreme Court in the case of Christian Medical College, Vellore and Ors. v. Union of India and Ors., reported in 2014 (2) SCC 305. In the aforesaid judgment, Hon'ble Supreme Court has quashed the notifications by majority judgment and subsequently in the year 2016, Medical Council of India preferred Review Petition. Same was allowed by the Hon'ble Supreme Court in the case of Medical Council of India v. Christian Medical College, Vellore and Ors. reported in 2016 (4) SCC 342, by which the Hon'ble Supreme Court recalled its earlier order dated 18.07.2013. [3.5] Further in the case of Sankalp Charitable Trust and Anr. v. Union of India in Writ Petition No. 261 of 2016, by order dated 27.04.2016 (reported in (2016) 7 SCC 487, the Hon'ble Supreme Court has issued directions to the Authorities to hold NEET Examination for the purpose of admission to MBBS and BDS courses for the academic year 2016 - 17. Subsequently, Medical Council of India Act, 1956 was amended by inserting Section 10(D) which read as under :- "10D. There shall be conduced a uniform entrance examination to all medical educational institutions at the undergraduate level and post graduate level through such designated Authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated Authority shall ensure the conduct of uniform entrance examination in the aforesaid manner. Provided that notwithstanding any judgment or order of any Court, the provisions of this Section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016 -17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Medical College or in a private Medical College) where such State has not opted for such examination." [3.6] It is the case of the petitioners that third respondent - University seeks to give preference to the students graduating from its own University, which is against scheme of holding NEET. It is alleged that Medical Council of India Act and Post Graduate Medical Education Regulations, 2000 mandates to conduct NEET for admission to Post Graduate Medical Courses and control of such examination vested with Ministry of Health and Family Welfare, Government of India. It is stated that in absence of any power conferred under Medical Council of India Act and/or Regulations, 2000, Universities have no say in the admission process so as to give preference to students of the same Universities. In the petition itself, it is stated that while Institutional Preference has been deemed to be a valid reservation practice in the past, but in view of introduction of Common Entrance Examination by NEET system, concept of Institutional Preference no longer holds good. In the petition, reference is made to the judgment of the Hon'ble Supreme Court in the case of Dr. Pradeep Jain and Ors. v. Union of India reported in 1984 (3) SCC 654 and in the case of Saurabh Chaudri and Ors. v. Union of India and Ors. reported in 2003 (11) SCC 146. ;