Ferdino I. Rebello, J.@mdashRule in all petitions where rule has not been issued.
2. Considering that in all the petitions the issue is same or similar and pleadings are complete, we propose to dispose of these petitions which will also dispose of the similar issues raised in the other petitions. Considering the inconsistent stand of the State in the various affidavits filed in reply, those will also be considered while disposing of the issue that arises in these petitions.
3. We find that various interim orders have been passed from time to time permitting students of the deemed universities to appear for the C.E.T. Conducted by the State Government and if they have passed the examination, then to proceed accordingly. One such order was passed on 25.11.2001 where this Court directed to declare the result of the Petitioners C.E.T. and then to process the matter accordingly.
4. We may now set out a few facts which are relevant for the purpose of disposing of the controversy which arises in these petitions. The facts in W.P. No. 1863 of 2009 to the extent necessary will be referred to. The Petitioner and other petitioners have obtained their M.B.B.S. Degrees from deemed universities being Dr. D.Y. Patil Vidyapeeth, Nerul, Navi Mumbai and Bharati Vidyapeeth Pune, both having their colleges in the State of Maharashtra. The Universities where they pursued their course are recognized by the Medical Council of India and the M.B.B.S. Degree conferred by them is also recognized by the Medical Council of India, like the colleges affiliated to the Maharashtra University of Health Sciences (MUHS).
5. All the Petitioners, had applied to appear for the Common Entrance Test (CET) conducted by the State Government, for admission to post Graduate seats of MD/MS/Diploma P.G. Courses by common entrance test to colleges covered by the said test. The Medical colleges of both these deemed universities were earlier affiliated to various universities in the State before U.G.C., gave them the deemed university status. The State has been issuing instructions which constitute the procedure for selection/admission for the Post Graduate Course in MD/MS/Diploma, which is described as the "Procedure for selection and admission to Medical Post Graduate Courses at the State Government Medical Colleges, Brihan Mumbai Medical Colleges, Tata Memorial Hospital and all other private Medical Colleges/Institutions to opt for admission to PG courses through PGM/CET 2009. Similar instructions were issued for admission for earlier years which form the subject matter of the other petitions. We may only refer to PGM CET 2009. The relevant clauses of which read as under:
"7.2.1 A candidates, who have passed final M.B.B.S. examination and completed/completing one year internship training by 31st March, 2009 from a recognized medical college (Annexure F) included in the Schedule of the Indian Medical Council Act, 1956 and situated in Maharashtra, affiliated to Non-Agricultural Universities established under Maharashtra Universities Act, 1994 or the Maharashtra University of Health Sciences Act, 1998 and who have obtained registration either from the Medical Council of India or Maharashtra Medical Council (MMC) will be eligible to appear for PGM-CET 2009."
"7.6 Those candidates who have passed the Final MBBS Examination from conventional non Agricultural Universities of Maharashtra /MUHS, Nashik will be eligible to appear for PGM-CET-2009."
"7.12 Non-eligibility of Candidate The following candidates are not eligible for applying/appearing at PGM-CET 2009 as the case may be:"
"7.12.4 Candidates who have obtained MBBS degree from Deemed University."
6. These Petitioners who are M.B.B.S. degree holders from the deemed universities are aggrieved by clauses 7.2.1, 7.6 and 7.12.4 to the extent that they make the Petitioners ineligible to appear for PGM CET 2009. Under these clauses they stand disqualified as they had obtained M.B.B.S. Degree from a deemed university and secondly as they had not passed the final M.B.B.S. Examination from a conventional non agricultural universities established of Maharashtra or the Maharashtra University of Health Sciences Act, Nashik. By the present petitions they seek a prayer that clauses 7.2.1, 7.5, 7.6 and 7.12.4 of the admission procedure be declared as unreasonable, arbitrary and discriminatory and thus violative of Article 14 of the Constitution of India. There are also consequential prayers which we need not refer to.
7. The question for consideration is, whether the clauses which bar a holder of a M.B.B. S. Degree from a deemed university situated in the State of Maharashtra to appear for admission to P.G. Course, whose admission is based on the marks obtained in the C.E.T. Conducted by the State of Maharashtra and the clauses which makes them ineligible are arbitrary, unreasonable and discriminatory and consequently violative of the Article 14 of the Constitution of India and or ultra vires being contrary to the law declared by the Supreme Court of India.
8. Petitioners contend that admissions to Post graduate courses other than super specialities can only to be on merit subject to state interest and region''s claims of backwardness. For the purpose of considering regional imbalances, the region to be taken into consideration is not a geographical area like the district but the region within the jurisdiction of the University at the minimal level. When reservations become necessary on the aforesaid two grounds, as observed in
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 ground for reservation in admissions to post graduate 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 MBBS course from a medical college or university, may be given preference for admission to the post graduate course in the same medical college 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.
9. The issue of Regional reservation does not arise in these cases, in view of Clause 6.7 of the prospectus which reads as under:
6.7 The seats available will be filled in on the basis of State Level Merit in PGM-CET. There will be no regional reservation. There will be reservation in these seats as per Government orders issued from time to time (Annexure "C & D").
10. It is the case of the Petitioners that once they have passed M.B.B.S. Examination from the deemed University in the State of Maharashtra, they cannot be prohibited or debarred from appearing for CET for admission to Post graduate courses conducted by the CET held by the State of Maharashtra even assuming that at the time of admission to the M.B.B.S. Course they had not been selected pursuant to the CET conducted by the State Government or by the private Medical colleges affiliated to M.U.H.S. They had appeared for an all India CET conducted by the deemed university which has been recognized by the Supreme Court. Once the Petitioners were allowed to proceed with the course and passed the M.B.B..S. Examination, which has been recognized by the Medical Council of India, the mere fact that they had not appeared or selected to the M.B.B.S. course based on the CET conducted by the State of Maharashtra or private medical colleges becomes irrelevant. What is relevant is that they have obtained the M.B.B.S. Degree which is recognized by the M.C.I., just like the M.B.B.S. Degree conferred by M.U.H.S. The Petitioners have set out the history of the procedure for admission from the year 1984. We may only mention that the Medical colleges in the state, including the now deemed universities were earlier affiliated with Universities in the State of Maharashtra until the establishment of M.U.H.S. D.Y. Patil Medical College at Nerul was given status of deemed university from 20.6.2002 and Bharati Vidyapeeth Pune was granted deemed university status by notification of 26.4.1996.
11. We may examine the stand of the State from the various affidavits filed. The State has been filing affidavits taking inconsistent stands which we may now refer to and not even explaining their stand in the subsequent affidavits. In Writ Petition (L) No. 427 of 2002 in Sumit Jain and Ors. v. State of Maharashtra and Ors., a reply was filed by Mr. Dattatraya Baburao Borade, Desk Officer, Medical Education and Drugs department. The Petitioners there had obtained their degree from Bharati Vidyapeeth, Pune a Deemed University. It is set out that the process of admission of students for graduate as well as Post Graduate courses at the said college had its own procedure. The seats available for the graduate as well as post graduate courses for the said college are not made available to Respondent Nos. 1 and 2 for allotting the seats to students who appear to equivalent examination conducted by Respondent No. 1 and 2. The following averments are relevant:
7. ...I further say that however, if the Respondent No. 3 college gives its consent to the respondents 1 and 2 for permitting the seats available in the said college for the graduate as well as PG courses to be considered to be allotted to the students who appeared for the equivalent examination conducted for the graduate as well as PG courses by the Respondent Nos. 1 and 2, then the Respondents 1 and 2 would have no objection for permitting the students from the respondent No. 3 college to appear for the PGM-CET examination and in that event, only the petitioners can get admission to the said course provided subject to their result in the said examination.
It is thus clear from the stand of the State, that in the colleges run by it or municipal corporation, students of deemed university were barred from appearing for the entrance test not on the ground of either State interest or regional reservations which are the two only exceptions to merit for admission to the post graduate courses or on the ground that their original admission to the M.B.B.S. Course was not through C.E.T. held in terms of the Supreme Court Judgment or that their fees are not regulated by a committee in terms of the Supreme Court directions or that they were not affiliated to M.U.H.S. The only reason was that though the examination conducted by the deemed university is equivalent to the examinations conducted by it, their students were not admitted by the deemed universities and if they admit these students, they will allow students of the deemed university to appear for the CET examination.
12. In the present petition, Dr. Vasudev Tayade had filed two affidavits. In the first, it is set out that the students who fall short in merit and do not get admission through the CET examination conducted by Government, prefer to take admission to MBBS Course in Private Medical Colleges (Deemed Universities), for which the entrance examination is conducted by respective Deemed Universities only. The fee structure of Private Medical Colleges or the medical colleges which are under the control of Deemed universities is very high. All the students cannot afford to take admission because of the high fee structure in Deemed University Medical Colleges. The candidate belonging to the constitutional reservation are unable to secure admission to Deemed University Medical Colleges. It is also pointed out that the students who obtain their graduate degree from deemed universities can compete for PG admission in (a) All India PG Entrance Examination, (b) Private Association''s PG CET examination, (c) all Deemed University''s individual PG CET Examinations as well as, (d) through the PG CET examination of the Deemed University Medical College from where the candidate does MBBS course. It is also pleaded that financially poor but deserving meritorious students who complete their graduate i.e. MBBS from Govt. Colleges (whether from General or from Reserve Category) are left with few seats for Post Graduate Courses. The reasons thus set out may be summarized as under:
(1) Less number of seats available for PG admissions in Govt./ Corporation run Medical Colleges.
(2) No avenues open to the reserved category candidate in Deemed University Medical Colleges based on reservations.
(3) High fee structure of private medical colleges as well as Deemed University Medical Colleges.
(4) Financially poor but deserving meritorious students who complete their graduation i.e. MBBS from Govt. Colleges (whether from General or from Reserve Category) are left with few seats for Post graduate Courses.
Thus from the said affidavit it will be clear that the reasons for denying the seats to these students is neither based on State interest or Regional reservation or the reasons set out in the third affidavit.
13. During the course of the final hearing, an additional affidavit was filed by Dr. Vasudev Tayade and we permitted the same in the larger public interest.
In the said affidavit the stand of the State in the earlier two affidavits is ignored and the new stand of the State is that the Hon''ble Supreme Court had directed every State Government to appoint a permanent committee which will ensure that the tests conducted by the association of colleges are fair and transparent. The committee was to be headed by a retired Judge of the High Court to be nominated by the Chief Justice of that State. The Government has constituted the committee. Similarly the examination is conducted under the strict supervision of the said committee in a transparent manner. The deemed universities have not joined the CET conducted by the State or the CET conducted by the Association of Private Medical Colleges for admission to MBBS course. They are conducting their own private entrance examination without any supervision either from the State Committees or any other Regulatory Body. The State Government, Municipal and Private Unaided Medical colleges are duly affiliated to the Maharashtra Universities of Health Sciences at Nashik. The MBBS Examinations are conducted and monitored and as against this, the deemed University conduct their own examination without any control from any Regulatory Authority. These are the reasons sought to be given why the students of the deemed universities are ineligible to appear for the examination for PG CET. Again the ineligibility is not based on State Interest or regional interest. The reasons are based on the purported non-control by the State and non-supervision by Committees at the admission stage and fee structure for admission to the M.B.B.S. Course. No explanation has been given as to why they have departed from their earlier two affidavits to deny appearance for admission for entrance examination to the P.G. Course and on what basis the new stand has been taken.
14. Reply has been filed by Mr. Ashok Harit, Deputy Secretary, Medical Council of India. The affidavit deals extensively with the powers of the medical council of India and various judgments of the Supreme Court recognizing those powers and the consequences of recognition by the M.C.I. It is explained that every Medical College affiliated to the University whose degrees are recognized has to have independent recognition and approval of the Medical Council of India for the award of a recognized, degree from a University. The MCI for effectively implementing the provisions of Section 10A of the Medical Council Act, on 20th September, 1993 with the approval of the Central Government, notified the regulations made u/s 10A read with Section 33 of the Act providing for the detailed statutory scheme and the statutory stipulations to be followed and the criteria to be fulfilled for making application to the Central Government for grant of permission for establishing a Medical college and the condition for recognition of their degrees. The conduct of the inspection of the final examinations held at any medical institution/college for verifying its standard and sufficiency must be in accordance with the provisions of the Act, including the provisions of Section 17. MCI for making recommendation to the Central Govt. for grant of recognition of the medical qualification ensures that the college meets with the statutory imperative stipulated in the provisions of the Act itself and which has also been duly reaffirmed and reemphasized in the statutory regulations framed by the MCI u/s 10A read with Section 33 of the Act with the approval of the Govt. of India. Reference is then made to the judgment in
15. We may gainfully refer to Regulation (9) which reads as under:
9. SELECTION OF POSTGRADUATE STUDENTS.
1. Students for Postgraduate medical courses shall be selected strictly on the basis of their academic merit.
2. For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses:
i. On the basis of merit as determined by the competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same state; or
ii. On the basis of merit as determined by a centralized competitive test held at the national level; or
iii. On the basis of the individual cumulative performance at the first, second and their MBBS examination, if such examination have been passed from the same university; or
iv. Combination of (i) and (iii):
Provided that wherever entrance test for Postgraduate admission is held by the State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical courses shall be fifty per cent for general category candidates and 40 per cent for the candidate belonging to Scheduled Castes, Scheduled Tribes and Other Backward classes.
Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty per cent by the management of the institution on the basis of merit.
The stand of the MCI is thus that the MBBS degree awarded by the deemed Universities are recognized and are included in the 1st schedule to the IMC Act, 1956.
16. A reply has also been filed on behalf of the University Grants Commission by Mr. S.C. Chadha, Deputy Secretary. It is pointed out that u/s 3 of U.G.S. Act. Guidelines have been framed which stipulates model constitution of the MoA and Rules to be adopted by institutions for grant of Deemed to be University status. Reference is made to Clauses 12, 13 and 14 which read as under:
12. The Institution and its admission will be open to all persons regardless of race, religion, caste or creed and the area/place of residence in India. No condition shall be imposed as regards any religious belief either in admitting or appointing the teachers/staff. However, admission of Foreign students shall be governed a s per the guidelines/directions of the UGC.
13. Admission shall be made on an All India basis to the identical courses in all the deemed to be universities through a common entrance test conducted either by the University Grant s Commission or by an Institution/Agency identified and approved by the UGC. This shall apply also to those institutions which have already been given the deemed to be university status.
14. Admission to the various professional course, such as Medical, Dental, Nursing, Engineering Pharmacy, Management and Legal Education etc. shall be made on the basis of regulations framed by the UGC in consultation with the respective statutory councils. The fee structure will also be the same as laid down in the respective regulations.
Reference is also made to Clauses (6) and (7) which read as under:
Further, Clause 6 and 7 of the model MOA stipulates the following effect regarding the issue of admission as well as fees:
6. Institute Open to All:
(i) The Institute shall be open to all persons of whatever race, religion, creed, caste, class and geographical area of the country. No test or condition shall be imposed as to religious belief of occupation in admitting or appointing members, students, teachers, workers or in any other connection whatsoever.
(ii) No capitation fees shall be charged in any form in consideration for admission.
(iii) In the case of self-financing institutions, fees to be prescribed shall be as per regulations prescribed under the UGC Act Section 26(1)(i).
(iv) No benefaction that involves conditions and obligations opposed to the spirit and objects of the institution shall be accepted by the Institute.
7. Admissions:
Admissions shall be made on an all India basis to the identical courses in all deemed to be universities through a common entrance test conducted either by the University Grants Commission or by an Institution Agency identified and approved by the UGC. This shall apply also to those institutions which have already been given the deemed to be university status.
17. UGC it is pointed out has not received any OM from the Ministry of Human Resource Development, Government of India regarding process of admissions to medical colleges in deemed universities. Reference is then made to OM dated 4th October, 2004 in so far as admission to Engineering, Architecture and Planning Programmes in the country are concerned. It is pointed out that some of the deemed Universities are admitting students through AIEEE and some of them are conducting their own, all India Level entrance examinations.
18. In case of Bharati Vidyapeeth, the admission process is supervised, monitored and controlled by a committee of Senior professors appointed by Bharati Vidyapeeth University. Fee structure is based on the committee of experts which is headed by Prof. Dr. Hari Gautam, Former Chairman of the University Grants Commission, New Delhi and two experts being Dr. B.P. Sable, Former Vice Chancellor, YCMOU, Nashik, Prof. Dr. N. Jayasankaran, Former Vice Chancellor, SESVM, Kanchipuram, and C.A. Suhas P. Bora, as Financial Expert.
Similarly Padmashree Dr. D.Y. Patil Vidyapeeth, Nerul, Navi Mumbai has conducted its own All India Entrance Examination and constituted a committee of experts consisting of Justice Arvind Savant, Retired Chief Justice, Kerala High Court as Chairman and Prof. Hari Goutam, Ex. Chairman, UGC New Delhi as Member and Shri. Vasant Jadhav, Retired General Manager, Indian Bank as a member.
19. From the affidavit filed by the M.C.I., the following points emerge:
(a) Students for P.G. Course can only be admitted based on merit by a centralized competitive test.
(b) the university including deemed university can hold their own examination for admission.
20. From the affidavit of U.G.C. This is what emerges:
(a) Admission has to be on All India basis through a common C.E.T., conducted by U.G.C. Or by an institution/agency identified and approved by U.G.C.
(b) admission based on regulations made by M.C.I.
(c) no capitation fee can be charged.
(d) In self functioning institutions fees to be provided are as per U.G.C. Regulations.
(e) U.G.C., had not received any O.M. From Ministry of Human Resource Department regarding process of admission to medical colleges in deemed universities.
21. Considering these pleadings the question as raised, namely, are whether the clauses 7.2.1, 7.6 and 7.12.4 of the Brochure (Admission Procedure) arbitrary, unreasonable and/or ultra vires the constitution and consequently should be so declared will be answered.
The law on the subject of admission to seats at PG level is no longer res integra. We may gainfully refer to the judgment of the Supreme Court in
Whether such reservations or preferences are constitutionally valid when tested on the touchstone of Article 14?
In the discussion the court noted that the primary consideration for selection of candidates for admission to medical colleges must therefore, be merit. The object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students. The court then proceeded to consider under what circumstances, departure could be justifiably made from the principle of selection based on merit. The court noted that in the application of this principle, there are two considerations which weighed with the Courts in justifying departure from the principle of selection based on merits. One is what may be called State interest and the other is what may be described as a region''s claim of backwardness.
In the matter of State interest, the court noted that the same was expressly recognized by it in
22. This Court in Dr. Thukral Anjali Deokumar v. State of Maharashtra and Ors. 1998 Mh. L.J. 841 had summed up the law in Para 6 by observing that the region to be taken in to consideration is not a geographical unit such as the district but the region within the jurisdiction of a University at the minimal level. We may gainfully refer to the following observations:
6. All the decisions of the Supreme Court on the subject till then have, with respect, been succinctly summarized by the Court in its decision in
(1) There can be reservations to medical courses (except those of Super Specialities) on the ground of residence or domicile in a State, and the regional imbalances within the State. For the purposes of considering regional imbalances, however, the region to be taken into consideration is not a geographical unit such as the district but the region within the jurisdiction of a University at the minimal level.
(2) Even when reservations become necessary on the aforesaid two grounds, at least 15% of the seats available for the graduation course and 25% of the seats available for the Post-Graduate Courses should be kept non-reserved and free for competition from students all over the country.
(3) There should be no reservation (except constitutional reservation) for Super-Speciality Courses.
23. In the earlier part of our judgment, we have noted the rules framed under PGM CET 2009 and similarly in respect of earlier years, the region has been taken as the entire State. Clause 6.7 sets out that there will be no regional reservation. As such the State itself has excluded reservations based on region. In Maharashtra presently there are three universities. They are (1) M.U.H.S. (2) Bharati Vidyapeeth, and (3) Dr. D.Y. Patil. The latter two are deemed universities. Degrees conferred by all the universities are recognized by the M.C.I. The courses are in terms of the syllabus approved by the M.C.I. The standard of passing and evaluation is also in terms of the norms laid down by M.C.I. Like M.U.H.S. Which includes the entire geographical area of Maharashtra, the deemed Universities also include the geographical area of the state of Maharashtra besides other region.
24. That leaves only State interest or local interest on the ground of residence/ domicile apart from what is set out in third affidavit of the State which we shall examine.
25. Let us consider domicile or residence. As per the procedure, students who may not be domiciled in the State of Maharashtra but who have secured admission to private medical college in the State of Maharashtra, where residence is not a pre-qualification for admission are also eligible to appear for the CET. The reason given by the State for permitting such students is that at the graduate level the students from these colleges also secure admission based on the examination conducted by an authority constituted in terms of the Judgment of the Supreme Court and their fee structure is also regulated by the another committee and that they are affiliated to the Maharashtra University of Health Sciences.
In other words, such students even if they are not domiciled or have their residence in Maharashtra and have not secured admission based on the examination conducted by the State and though they may be admitted to private medical colleges which charge higher fees, than the colleges run by the State or local authorities, are also eligible to appear for the PGM-CET examinations. In other words, even students who did not have the residence or domicile at the stage of admission to the M.B.B.S. Course and who are not residents or domiciled in the State of Maharashtra at the time appear for the C.E.T. for the P.G. Course. On the contrary, students from the deemed universities who may be domiciled or have their residence in the State of Maharashtra however, are excluded from the P.G. CET examination. Therefore, domicile or residence is not the basis for applying for P.G. CET examination conducted by the State Government. If residence or domicile is therefore, not the criteria, then for such other students, can the Respondent State justify exclusion of students domiciled or resided in Maharashtra passing of the deemed universities or even those not domiciled or not residents. The State cannot discriminate between students to appear for P.G. CET once it gives up domicile or residence.
26. In Rule 7.7 it is provided that candidate who are domiciled in Maharashtra and who have obtained admission under the 15% quota for All India Entrance Examination (AIEE) for MBBS course in the medical college/institution situated outside Maharashtra State and who have obtained the degree from a University situated outside the State of Maharashtra will also be eligible for PGM CET 2009. In other words the students domiciled in Maharashtra and who has obtained admission in any other medical college situated outside Maharashtra State, though not having passed their final MMBS examination from a university in Maharashtra/ (MUHS) are also be eligible to appear for the PGM CET conducted by State Government.
Secondly against the All India quota of 50% for P.G. Courses, students passing out from the deemed universities are eligible to be admitted to the P.G. Courses in the colleges run by the State Government and the local bodies. In other words, the initial admission based on the C.E.T. Examination for admission to the M.B.B.S. Course or the fee structure or the non-affiliation to M.U.H.S., becomes irrelevant. If that become irrelevant for admission for the all India quota, it must also become irrelevant for open and State quota.
Thus being affiliated to M.U.H.S., or passing out from M.U.H.S., becomes irrelevant. The students of the deemed universities therefore, cannot be treated differently.
27. We may now refer to the judgment in
18. u/s 3 of the Act, deemed University status will be given to those institutions that for historical reasons or for any other circumstances are not Universities and yet are doing work of a high standard in specialized academic field compared to a University and that granting of a University status would enable them to further contribute to the course of higher education which would mutually enrich the institution and the University system. Guidelines for considering proposals for declaring an institution as deemed to be University were also issued by the UGC. Under the said guidelines aspects relating to admission was specifically entrusted with the UGC and admission could be made only through a common entrance test on All-India basis. Such an exercise was intended to maintain a uniform standard and level of excellence. As we have pointed out, admission plays a crucial role in maintaining of the high quality of education. And for the proper maintenance of academic excellence, as intended by the UGC Act, admissions to deemed University has to be made under the control of UGC. This further goes to show that admission procedure to a deemed to be University Is fully occupied by Entry 66 of List I and the State cannot exercise any powers over admission procedure.
It would thus be clear that an institution to be given the status of deemed university it must be doing work of high standard in specialized academic field compared to the colleges affiliated to the university and that granting of university status would enable them to further contribute to the course of higher education which would mutually enrich the institution and the university system. For the purpose of academic excellence, as required by the UGC Act, admission to deemed university has to be made under the control of UGC. The court noted that in these circumstances, the State cannot exercise any powers over the admission procedure.
28. The Medical council of India has also framed regulations for selection of PG students and we have quoted regulation 9. In these regulations, as earlier mentioned though merit is the criteria, it has to be determined by competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of universities in the same state. Admittedly in the instant case the deemed university, conducts the examination for admission to the under graduate course as also to the PG course by conducting an all India test. This requirement meets with the law declared by the Supreme Court in
29. In the affidavit of Mr. S.C. Chadha, Deputy Secretary University Grants Commission, it is set out that the guidelines have been framed by the UGC which requires that the admission should be on All India basis through common entrance test conducted either by the UGC or by an Institution/Agency identified and approved by the UGC. The fees structure is to be governed in terms of the respective regulations. It is pointed out that in so far as UGC is concerned, UGC has not received any OM from the Ministry of Human Resource Development, Government of India regarding the process of admissions. Some of the Universities are conducting their own All India Level Entrance examination. The admission process is supervised, monitored and controlled by a committee of Senior Professors appointed by Bharati Vidyapeeth in their case. Apart from that the affidavit notes that the fee structure is based on the recommendations of the committee appointed by the two deemed universities.
30. The question really is whether it is open to the State to contend that because of this procedure of admission and charging of fees, they can exclude a class of students who pass out from the deemed universities from the CET when against the All India quota in the very same institutions they are eligible to be admitted. Once the students from the deemed university are eligible to be selected for the seats for PG to Institutes in which State Government holds CET, against the All India quota, the reasons given to exclude them from the state quota to our mind no longer subsists and becomes irrelevant. If such students are eligible to be admitted to the P.G. Course on the basis of the same examination and the same fees that they paid while doing their graduate course in the deemed universities and non-affiliated to M.U.H.S. to exclude students for the other 50% quota would be arbitrary and unreasonable. Once the deemed university is recognized by the Medical Council of India, the institutions which are recognized by the M.C.I. are bound to follow regulation (9). The only exception to merit being State interest and backward region. There can be no other reason to exclude the students who have obtained MBBS degree from the college recognized by the U.G.C. and which course is recognized by the Medical Council of India from appearing for the examination. Once the student has passed the M.B.B.S. examination, the initial process of entry at the under graduate level stands obliterated. To that extent, the State action by way of the clauses earlier set out to impose restrictions for admission are arbitrary and unreasonable.
31. The inconsistent stand of the State which has not been explained may be further considered. In the first affidavit of Mr. Dattatraya Borade, the State had no hesitation in admitting the students from the deemed Universities, if the seats in the deemed university were made available to be also allotted to students who appeared for the equivalent examination conducted for graduate as well as post graduate course by Respondent No. 1 would be admitted. In the second affidavit filed by Dr. Tayade, dated 19.1.2009 the reasons given were that the fee structure being high, all students cannot afford to take admission to the deemed University Medical College. Secondly the institutions for which examinations were conducted by the State Government, abide by the constitutional reservations which the deemed universities do not follow and students of deemed universities could appear for PG admissions for various institutions. The students of the deemed universities were therefore, excluded for these reasons and as financially poor but deserving meritorious students who complete their graduation from Government colleges were left with few seats for PG courses. The reservation therefore, in addition seems to be based upon economic criteria of rich and poor. None of these criteria sound either in State interest or interest of backward region. In a turn around, in the third affidavit the reasons are the entrance examination of MBBS course and the fee structure and non-affiliation to M.U.H.S. The first two reasons are unconnected with either state interest or backwardness of the region. Further colleges affiliated to one university at the same time cannot be affiliated to another University. The very fact that deemed university status has been granted is a recognition by the U.G.C., of the higher standards in the colleges of the deemed university. The State Government cannot ignore or exclude this aspect whilst formulating its policy. The State cannot shift its stand depending upon the counsel it engages from time to time. The State is bound to explain its shifting stand which has not been done by a proper affidavit. The policy change, if any, must be reflected by a decision of the Government seen from the record. In our opinion, the inconsistent reasons given and which are not germane to appear for the common C.E.T. have to be rejected.
32. Though the State has not established any State interest in its affidavits, we may still examine whether it was open to the State to plead state interest based on the reasons given in the third affidavit for keeping out students of the deemed universities outside the purview of the PG CET examination on the basis that they would admit students only from M.U.H.S. . For that purpose, we may gainfully refer to paras 26 and 27 of the judgment in Bharati Vidyapeeth (supra). The Supreme Court observed as:
26. He further highlighted that these institutions originally started in the State of Maharashtra to cater to the local needs and therefore now if it is being given deemed status it will no longer serve the local needs, such need having been recognized by the Government by granting essentiality certificate. It would not be appropriate for the State to contend that even though the institution has now attained the deemed university status it is not beyond the clutches of the State in the matter of admissions of the students to such colleges as before granting of the deemed university status, the State was indeed consulted and the State conveyed its strong recommendation for grant of such status. Particularly when such status has been granted after consulting the Government concerned, we do not think that such argument on the basis of local needs should be accepted. Faced with this position, Learned Counsel, of course, stated that the problem posed by him may have to be attended to by the concerned authority.
27. We, accordingly, allow this appeal, set aside the order made by the High Court and allow the writ petition filed by the appellants to the extent of restraining the respondents to enforce their instructions for bringing the institutions of the appellants within the stream of the Common Entrance Test Examination.
33. Before analyzing the said paragraphs, we may note that Bharati Vidyapeeth had challenged the action of the State in including their institute in the CET to be conducted by the authority constituted by the State Government. The stand of the Bharati Vidyapeeth was that they being a deemed university, it was not open to the State to exercise any of its powers over a deemed university. This was the core question. After examining the law, the court observed that selection and admission cannot be compartmentalized but is one single process. The Petition filed by Bharati Vidyapeeth had been dismissed by this Court against which the appeal was preferred and an interim order was granted on 19.5.1997 which reads as under:
...We are informed that the examination process had already begun as early as February, 1979. In the larger public interest, we are of the view that the petitioner will conduct an all-India entrance test and will grant admission strictly on the basis of the merit of the candidates. Admission so granted will be subject to the final orders, that will be passed by this Court.
The judgment in Islamic Academy was also considered. Thus it will be clear that the Supreme Court itself had directed the deemed university to conduct the examination. Another aspect of the matter is that guidelines relating to admission is that it was only through a common entrance test on All India basis.
Paragraph 26 of the Judgment which we have referred to earlier, the court dealt with the issue that these institutions were originally started in the State of Maharashtra to cater to the local needs and if they are given deemed status it no will longer serve local needs. This argument was repelled by the Supreme Court, by observing that the State was consulted and the State conveyed strong recommendations for grant of deemed university status and in these circumstances the argument on the basis of local needs cannot be accepted. Apart from that if students who are resident or domiciled in Maharashtra just like other students who are resident or domiciled are likely to meet local needs. Apart from this from the facts on record, even students who are not resident or domiciled, if they secure admission to M.B.B.S., through a college affiliated to M.U.H.S., are allowed to appear for the C.E.T. The Respondent State therefore, rightly in all its three affidavits has not pleaded state interest or local need.
34. Must the Birth mark for entrance examination at the time of the students admission to the graduate course (M.B.B.S.) continue to rule the rest of the students'' career. The said issue was considered by another Corporate Bench of this Court in the case of Dr. Thukrul (supra). The court answered that issue as under:
The society is interested in having the best talent in the medical profession. For that purpose, all those with merit must get an opportunity to prove their worth. The careers of students cannot be stultified or prospered by the accident of initial admission to a particular College. As it is, there are enough inequalities in our society on account of various factors. There is a need to minimise them and not to add to them. But we are told that there should be classification even in the noble profession like medical not on account of skills and talents but on account of the College or Colleges which the students are forced to join initially. These "birth marks" must continue to rule the rest of the student''s career and the society should suffer and go without the better and the best on account of these accidents of "birth". All post graduation courses in all branches of knowledge are a continuation of studies and specifications in one or the other branch. There is nothing unique about it in medicine. The distinction sought to be made between medicine and other branches of knowledge on the ground of association with particular infrastructures at the graduation level, is as we have pointed out above, neither warranted nor real. To deny a post graduation course on account of such distinction is all the more unreasonable and unjust.
35. We may also note that the students passing from colleges run by the respondent state or local body are not admitted either to the graduate or post graduate courses of private medical colleges by the CET conducted by the State Government. So is the position of the deemed universities who conduct their own examinations in terms of M.C.I. Regulations. The fees charged by the private medical colleges are in terms of the committee constituted by the Association of Medical Colleges. Similarly deemed Universities are also charging fees decided by a committee and as per UGC regulations. The private medical colleges affiliated to M.U.H.S. and the medical colleges of the deemed universities are thus similarly situated, except that those colleges are affiliated to M.U.H.S. That in our opinion, is irrelevant as both are governed by the rules of M.C.I. And U.G.C. Regulations and the Supreme Court Judgment in the matter of admission, standard of passing M.B.B.S. Examination and the fee structure.
MUHS covers the entire State. The colleges of the deemed universities are within the same area of MUHS though they are not affiliated to MUHS as they are part of the deemed university. Both function within the geographical area of the State of Maharashtra. The M.B.B.S. Course of colleges affiliated to MUHS and Deemed universities have been recognized by the MCI and must comply with the UGC norms. The courses under MBB S/PG/Diploma are in terms of the regulations framed by the MCI. In these circumstances, how is it relevant if the student pass out either from MUHS or Deemed universities. In terms of the judgment in Bharati Vidyapeeth, the Supreme Court has recognized the institutions of the deemed university as institutions that have high standards in specialized academic field. Deemed University status requires getting the approval of the State Government and after consulting the government.
36. In Pradeep Jain (supra) while upholding the reservation based on state interest and regional imbalances, the Supreme Court held that the students passing out from both the State Board and Central Board (CBSE) would be eligible for admission for the seats reserved on the basis of state interest or regional reservations. Thus the court has held that the Board from which the students pass out is irrelevant. The State Government has no control over the examinations conducted by the Central Board. Once this is recognized, passing out from which university is irrelevant and any restriction is abhorrent to the constitutional mandate of equality guaranteed under Article 14 of the Constitution of India.
37. The Supreme Court in Nidamarti Maheshkumar v. State of Maharashtra and Ors. (supra) while upholding the reservation based on the regional preferences was pleased to hold that it can only be in respect of a certain percentage of seats in favour of those who studied in the schools or colleges within the region of the particular university. Applying the principle laid down in Pradeep Jain (supra), the court observed that in respect of open seats after excluding the constitutional reservations at the graduate level, 70% would be the reservation for admissions to the students and the rest should be left for the students from other universities or regions within the State. Applying the ratio for P.G. Courses, it shall be at least 50%. In the instant case, that also has not been provided for. Thus reserving all other seats only for students from colleges affiliated to M.U.H.S. would be arbitrary. We may observe that we are really not answering this specific issue, but only trying to explain the present position in law.
38. From the discussion what follows is that the admission to Post Graduate course both graduate and diploma has to be on merit subject to the reservations which were explained by the Supreme Court in Dr. Pradeep Jain (supra). In the instant case, after considering various aspects, we have held that apart from the State not pleading state interest and regional reservations being excluded by virtue of Clause 6.7, all eligible candidates be entitled to appear for the Post Graduate CET conducted by the State Government. Various reasons given in the third affidavit have also been considered and rejected. In that light of the matter, the impugned clauses of the prospectus apart from being discriminatory are also unreasonable and liable to be quashed on that ground also. The purported reservation is also violative of the law declared by the Supreme Court and as understood by this Court. In the light of that, Clause 7.12.4 is declared as illegal. Once 7.12.4 is declared illegal, to that extent clauses 7.2.1 and 7.6 making not eligible students who have obtained M.B.B.S. Degree from deemed universities in the State of Maharashtra, will also have to be declared as illegal. Secondly apart from the candidates who have passed final M.B.B.S. Examination from conventional nonagricultural Universities of Maharashtra/MUHS, Nashik, the students of the deemed universities from the State of Maharashtra are also eligible to appear for the PGM CET conducted by the State of Maharashtra for admission to the PG courses under the institutions falling within the ambit of the said examinations. All students therefore, who had applied for and or admitted provisionally will be entitled to pursue and complete PG courses. In respect of PGC CET for subsequent years, the students from deemed Universities will be eligible to apply for PG courses in the colleges run by the State and or local bodies in the State of Maharashtra.
Rule made absolute accordingly in each of the petitions.
