- (1.) Misapprehension about implementation of Government order issued in exercise of power under Section 28 (5) of State Universities Act reserving 75% seats for internal students of a Medical College on principle of institutional preference and 25% for external candidates has been aggravated due to amendment made in 1986 by Govt. Order issued on 15th April. It stands highlighted by this petition filed by a candidate who obtained his MBBS from Bengal, secured 60.57% marks and completed his house job from Delhi for direction to the Principal of L.L.R.M. Medical College to admit him in M.S. (General Surgery) as he has been illegally excluded in violation of Govt. Order issued on 15th December. 1982. Since it was claimed that all the seats had been filled by internal candidate and the candidate who was placed second in order of merit had secured lesser marks than petitioner it was considered expedient to direct standing counsel to obtain necessary instructions and file counter affidavit within fifteen days. The time has expired but the learned Standing Counsel has not been instructed. A request for further time does not appear to be reasonable as post graduate course have started from July. Learned Standing Counsel however urged that the G.O., dated 15th December, 1982 has been amended in April 1986. And under the amended G.O. 25% seats for external students have to be filled first. For these seats even the internal students are eligible. Therefore, if the external candidate is excluded on merit then he cannot lay any claim to the remaining seats. And his exclusion cannot be said to be in violation of the Govt. Order. Rather it is in consonance with it.
(2.) Since the question is not only legal but important as well it appears necessary to extract clause (4) of the Govt. Order which reads as under:- "(4) In every speciality, seventy-five per cent seats in a particular Medical College shall be reserved for the candidates who have passed the MBBS examination from the College and against the remaining twenty-five per cent seats candidates who have passed MBBS examination from other Medical College and are bona fide resident of Uttar Pradesh, shall be eligible for admission on the basis of merit along with the candidates who have passed the MBBS examination from that very College." External students, therefore, could be admitted against 5 per cent seats reserved for them only if they were better in merit as compared to internal students. In Dr. G. P. Tiwari v. State. 1983 EC 208 : 1983 UI'LBEC 727.) grievance was made by intern) candidate and it was claimed that 25 per cent seats reserved for external candidates should be filled first by making him compete against best internal candidate. It was not accepted and the Bench observed, we find no warrant for holding that in considering the eligibility of the external candidates their merit has to be compared with the internal students who have already been selected against the 75 per cent quota. In Dr. Miss Noor Banoo v. S. N. Medical College Agra, 1985 Education Cases 210 : 1986 UPLBEC 106. a resolution passed by college enabling internal students to compete in merit with outsiders in pursuance of which the best student of the college opted to compete against external seat resulting in exclusion of external candidate and admission of internal candidate with lower percentage against remaining seats came up for consideration. It was not approved by this Court as it generated unfairness. In wake of these decisions the amendment to the Govt. Order in 1986 appears to have come. It is extracted below : "(4) (a) In every speciality, seventy-five per cent seats in a particular Medical College shall be reserved for the candidates who have passed the MBBS examination from that college and against the remaining twenty-five per cent seats, candidates who have passed MBBS examination from other Medical Colleges and are bona fide resident of Uttar Pradesh, shall be eligible for admission on the basis of merit along with the candidates who have passed the MBBS examination from that very college. (4) (b) The open twenty-five per cent seats shall be considered first and the reserved seventy-five per cent shall be taken up after that."
(3.) Reservation of seats on institutional preference in MBBS has been upheld by Supreme Court in Dr. Pradeep Jain v. Union of India, 1984 Education Cases 237. It, however, struck a note of caution in respect of Post Graduate Courses and warned against compromising excellence with local or parochial considerations Judged in that light, clause (8) appears to be indirect effort to prefer internal students even against better and meritorious external students. The exact objective or purpose sought to be achieved by this amendment is not clear. If it is applied as it has been done in this case it shall render the principal clause of reserving 25 per cent seats for externals as otiose That surely could not have been the intention. It was open to Government to delete clause (4) and direct that all seats shall be filled by internal candidates And the remaining seats if any could be filled by externals. But maintaining the clause and yet denying admission to any external candidates by this indirect method is not understandable. It is common knowledge that a student who passed his MBBS from one college if normally interested in pursuing his higher studies in the same college. Very few with good marks may like to join other college except for personal difficulties. By and large the movement is by those student who could not secure better percentage in their college. Therefore, barring few the applicants for external scats in every college could be those who are lower in order of merit. If they are made to compete against best of college where they apply they are bound to be excluded. And that is what this amendment provides. The logical consequence would be that good external candidates shall be excluded first against 25 per cent seats and then 25 per cent meant for them and 75 per cent meant for internal shall be filled by internal candidates irrespective of their merit. It is apt to perpetuate arbitrariness by excluding better against poor as is demonstrated by this case as barring the first all other candidates are lower in merit to petitioner.;