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ANIKET SHAILENDRA TRIPATHI & OTHERS V/S ADMISSION COMMITTEE FOR POST GRADUATE COURSES & OTHERS, decided on Friday, May 5, 2017.
[ In the High Court of Gujarat at Ahmedabad, Special Civil Application No. 8310 of 2017 with Special Civil Application No. 8579 of 2017. ] 05/05/2017
Judge(s) : CHIEF R. SUBHASH REDDY & VIPUL M. PANCHOLI
Advocate(s) : Shalin Mehta, Senior with Aditya Pandya, Mitul Shelat, Rushabh H. Shah. R1, Manisha Lavkumar Shah, G.P, R3, S.N. Shelat, Senior with V.D. Nanavati.
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    R. Subhash Reddy CJ.Common Oral:1. The petitioners in Special Civil Application No. 8310 of 2017 are the candidates seeking admission to Postgraduate Degree Courses. They have filed the petition seeking Writ of Mandamus or any other appropriate Writ to declare that there cannot be any reservation in favour of in-service candidates in Postgraduate Degree Courses in the Faculty of Medicine and Dentistry in colleges within the State of Gujarat and also to declare that the reservation in favour of Physically Challenged Candidates be treated as horizontal reservation as contemplated under Rule 7 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules 2017.2. Admission to Post Graduate Degree and Diploma Courses in medicine are governed by Rules titled as Gujarat Professional Post Graduate Medical Educational Courses (Regulation of Admission) Rules 2017 which are framed in exercise of powers conferred under sub-section (1) of Section 20 read with section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act 2007. Rules 6 and 7 of the Gujarat Professional Post Graduate Medical Educational Courses (Regulation of Admission) Rules 2017 providing reservation for in-service candidates and physically disabled persons which are relevant for the purpose of this petition read as under:6. Reservation for In-service candidate of Government of Gujarat :-As per the policy of the Government of Gujarat the seats for in-service candidate who are sponsored by the Government of Gujarat shall be reserved in Government Medical Colleges in each category and courses.7. Reservation for Physically Disabled person :-Three percent of the available seats in each category in Government colleges and Grant-in-aid colleges or institutions shall be reserved for loco-motor disabled candidates of the respective category provided that a candidate having loco-motor disability of lower limbs between 50% to 70% (upper limbs being normal) shall be eligible to apply for admission in accordance with the guidelines/regulations of the Medical Council of India provided the candidate shall require to produce the certificate obtained in the proforma prescribed in the application form. The certificate shall be obtained from the Medical Board constituted for this purpose by the State Government. The Certificate shall contain extent of disability and suitability of such candidate for undertaking the course. If any seat remains vacant the second preference shall be given to a candidate having loco-motor disability of lower limbs between 40% to less than 50%.3. In this petition mainly it is the case of the petitioners that in view of the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Others v. Dinesh Singh Chauhan reported in (2016) 9 SCC page 749 there cannot be any reservation to in-service candidates for Postgraduate Degree Courses. It is stated that such reservation runs contrary to Regulations framed by the Medical Council of India i.e. Medical Council of India Postgraduate Medical Education Regulations 2000. It is also the case of the petitioners in the petition that the reservation in favour of physically challenged persons be treated as horizontal reservation and if any physically challenged person gets admission as per the merit such admission cannot be counted against 3% quota reserved for physically challenged persons.4. The petition in Special Civil Application No.8310 of 2017 was filed on 20th April 2017.5. After Special Civil Application No.8310 of 2017 was filed the Government has issued resolution dated 21st April 2017 restricting the reservation of 25% of available seats only to Postgraduate Diploma Courses. After issuance of such resolution by the Government Special Civil Application No.8579 of 2017 was filed with the prayers which read as under:(A) Your Lordship be pleased to allow and admit this petition and be pleased to quash and set aside the Government Resolution dated 21.04.2017 bearing No. MCG/1004/650/J as the same is arbitrary illegal and in violation of Article 14 16 and 21 of the Constitution of India;(B) Your Lordship be pleased to direct the Respondent No.3 to allocate 25% seats in 10 specified branches of both degree and diploma courses in favour of In Service Medical Officer as per the Government Resolution dated 28.03.3013(sic) bearing number MCG/1004/650/J and conduct the admission process accordingly; or(C) In the alternative YOUR LORDSHIP be pleased to direct the respondents to at least provide for allocation of 50% seats in all branches of Diploma Studies as per Clause-9 of the Medical Council of India Regulations And Your Honour be further pleased to direct the respondents to provide incentive marks at the rate of 10% of the marks obtained for each years of service in remote and/or difficult areas upto maximum of 30% of the Marks obtained in Neet in terms of Clause-9 of the MCI Regulations.(D) During the pendency and till its final disposal Your Lordship be pleased to stay the operation and implementation of the Government Resolution dated 21.04.2017 bearing No. MCG/1004/650/J and be further pleased to direct the respondent No. 3 to conduct the admission process as per the prevailing policy vide Government Resolution dated 28.03.3013(sic) bearing number MCG/1004/650/J.(E) During the pendency and till final disposal of this petition Your Lordship be further pleased to restrain the respondent from proceeding with the process of counselling and admission for the present academic year.(F) Your Lordship I be pleased to pass any other further remedy that may deem fit in the light of justice equity and good conscience.6. It is the case of the petitioners in the said petition that the members of the petitioner - Association are in-service Medical Officers who are serving in rural and tribal areas. The rural and tribal areas of the State of Gujarat were not getting effective and competent medical services since super specialist and well qualified doctors get settled in urban and metropolitan areas only and as rural health services were facing crisis owing to such situation respondent No.1 has decided to introduce a scheme at first instance by Government Resolution dated 18th July 2005 allocating 10% of seats to Postgraduate Degree and Diploma Courses in favour of in-service candidates working in rural and tribal areas. It is stated that Government Resolution provided for various conditions for being eligible to get admissions to these seats. The condition included that the in-service Medical Officer is required to serve for three years in rural and tribal areas to qualify for reservation and has to serve for five years in rural and tribal areas after obtaining Degree of post graduation. The said policy was amended from time to time and the 1st respondent Government has passed Resolution dated 17th June 2008 by increasing the percentage of allocation of seats in favour of in-service Medical Officers from 10% to 25%. It is stated that in-service candidates are required to obtain No Objection Certificates from the respondent authorities to claim reservation in in service quota and are also required to qualify in the National Eligibility and Entrance Test (NEET) and based on the marks of the entrance test a separate list would be prepared. In the year 2013 another Government Resolution dated 28th March 2013 was passed bearing No. MCG/1004/650/J wherein reservation of 25% seats for in-service candidates was extended to 10 branches of Postgraduate Degree and Diploma Courses. It is further stated that in 2014 further conditions were added to have the benefit of reservation namely that the in-service candidates have to serve seven years in rural areas after completing their post graduation and to furnish a bond of Rs. 10 00 000/- which were added by Resolution dated 26th March 2014.7. It is the case of the petitioners that Medical Council of India has issued notification dated 10th March 2017 whereby it was directed that the admission to the Postgraduate Degree and Diploma Courses shall be by way of common entrance test being NEET. Thereafter rules were framed by the State of Gujarat namely Gujarat Professional Post Graduate Medical Educational Courses (Regulation of Admission) Rules 2017. These rules appointed respondent No.3 as nodal agency to conduct common counselling and admission process for medical courses. It is their grievance that after issuance of notification by the Medical Council of India the Government of Gujarat to the detriment and prejudice of the petitioners has issued a notification dated 21st April 2017 whereby reservation of 25% available seats in Degree Courses is taken out by restricting the reservation of 25% available seats in Postgraduate Diploma Courses only.8. In the petition it is the case of the petitioners that there is no justification for issuing the impugned Government Resolution taking away reservation of 25% of available seats to in-service candidates in Postgraduate Degree Courses. It is also their case that as per Regulation 9 of Medical Council of India Postgraduate Medical Education Regulations 2000 they are entitled to have reservation to the extent of 50% of the seats in Postgraduate Diploma Courses. However the State Government has restricted it to 25% without any justification and contrary to the MCI Regulations. It is their case that the Regulations of MCI are mandatory and further there is no reason for not giving incentive marks to the maximum extent of 30% for candidates who have served in rural and difficult areas.9. An affidavit-in-reply is filed on behalf of the 1st respondent-State. While denying the various allegations made by the petitioners it is the case of the 1st respondent that they have issued resolutions from time to time prescribing the percentage of reservation of available seats to in service candidates in Postgraduate Degree and Diploma Courses. Various resolutions issued by the Government from time to time are referred to in the affidavit-in-reply. It is the case of the 1st respondent that when the State Government has introduced specific Act regulating the admission to Postgraduate Degree and Diploma Courses and rules are framed for the very same purpose the Regulations of MCI are not mandatory. However it is stated that the Government considered the guidelines issued by Medical Council of India while framing the rules to meet the purpose. It is stated that the Government has issued Resolution dated 21st April 2017 under the changed circumstances for eligibility criteria for admission in medical courses. It is stated that earlier the admissions to above courses were given by different universities of the State following different rules made by the respective universities. It is stated that earlier the Gujarat University offered no in service reservation in Degree Courses. The South Gujarat and Saurashtra Universities offered no reservation for in-service candidates. It is only from this year that the NEET which is a single window admission test for assessing the merit has been introduced. With regard to the claim of additional top-up marks made by the petitioners it is stated that the State Government never resorted to the same in any of the earlier years and such top-up marks now will be violative of NEET 's merit criterion and hence the State Government has not opted for any of such top-up marks. It is further stated that while issuing Government Resolution dated 21st April 2017 reservation for Postgraduate Degree Courses was not considered keeping in mind that the sponsoring conditions have changed eligibility criteria has changed in terms of NEET and the common counselling for all postgraduate medical courses seats is to be undertaken for the first time only by the State as a single window admission mechanism. Further it is stated that the State Government in Resolution dated 21st April 2017 has resolved not to reserve any seats for in-service candidates for Postgraduate Degree Courses. It is stated that the issue of incentive marks is pending before the Hon'ble Supreme Court. While referring to Rule 6 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules 2017 it is stated that the contention of the petitioners that 50% of the seats in Diploma Courses be reserved for in service candidates also cannot be accepted. It is stated that such percentage can be prescribed as per the policy notified by the Government.10. Heard learned counsel Shri Mitul Shelat with Shri Rushabh H. Shah learned counsel for the petitioners in Special Civil Application No.8310 of 2017 Shri Shalin Mehta learned Senior Advocate with Shri Aditya Pandya learned counsel for the petitioners in Special Civil Application No.8579 of 2017 Ms. Manisha Lavkumar Shah learned Government Pleader for state of Gujarat and Shri S.N. Shelat learned Senior Advocate with Mrs. V.D. Nanavati learned counsel for Medical Council of India in both the petitions.11. As much as the postgraduate medical admissions counselling was to begin from 3rd of May 2017 due to paucity of time the reply affidavit could not be filed on behalf of the Medical Council of India but on instructions the learned Senior Advocate Shri S.N. Shelat has submitted their stand on the issues raised by the petitioners.12. For grant of relief in terms of prayers sought in Special Civil Application No. 8310 of 2017 it is contended by Shri Mitul Shelat learned counsel appearing for the petitioners that the question namely there cannot be any reservation for in-service candidates in Postgraduate Degree Courses is no more a res-integra in view of the judgment of Hon'ble Supreme Court in the case of State of Uttar Pradesh and Others v. Dinesh Singh Chauhan reported in (2016) 9 SCC page 749. It is further submitted that so far as reservation to physically disabled person as contemplated under Rule 7 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules 2017 is to be effected by treating the same as horizontal reservation is concerned the respondent State authorities are not applying the same as horizontal reservation. It is also the contention of learned counsel that if one physically disabled candidate gets admission on one's own as per the merit secured such admission cannot be counted against 3% quoto reserved against physically challenged persons. In support of his stand the learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission and Others reported in (2007) 8 Supreme Court Cases 785.13. Learned Senior Advocate Shri Shalin Mehta appearing for the petitioners in Special Civil Application No. 8579 of 2017 has contended that Regulation 9 of MCI Regulations 2000 is mandatory. In terms of the Regulation 9 the State Government ought to have reserved 50% of available seats in Diploma in post-graduation for in-service candidates. It is submitted that inspite of specific Regulations the policy is framed by the Government contrary to the Regulations restricting the reservation to 25% only. It is further pleaded that there is no reason for not giving the incentive marks maximum to the extent of 30% for in-service candidates who have worked in rural and difficult areas. The State Government has not provided any such incentive marks to be added in preparing the merit list. The same is also contrary to Regulations framed by the Medical Council of India. Learned Senior Advocate for the petitioners has relied on the very same judgment in the case of Dinesh Singh(supra) in support of his argument that merit list does not necessarily mean sole basis of marks secured in the NEET examination such merit also can be treated by adding incentive marks as per the State policy. In support of his argument that Regulation 9 of the MCI Regulations is a complete Code by itself and is to be applied as mandatory reliance is also placed on the judgment in the case of Sudhir N. & Ors. v. State of Kerala & Ors. reported in (2015) 6 Supreme Court Cases page 685.14. On the other hand learned Government Pleader appearing for the State Ms. Manisha Lavkumar Shah submits that as per the rules framed by the State it is always open for the Government to have its own policy to effect reservation to in-service candidates as per the local need. It is submitted that the policy notified by the Government is in conformity with the Rule 6 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules 2017. It is submitted that it is always open for the State to have its own policy having regard to local conditions without lowering the standards of medical education than provided under the prescribed Regulations by the Medical Council of India. In that view of the matter the percentage of seats to be reserved for Diploma Courses and further whether incentive marks are to be given to in-service candidates who are working in rural and difficult areas are matters of policy of the State. It is submitted that the regulation to the extent of percentage of reservations of the diploma in post graduation be treated as directory but not mandatory. It is further stated that even the regulation with regard to incentive marks is also directory but not mandatory. In support of her arguments learned Government Pleader has placed reliance on the judgments in the cases of Sudhir N. & Ors. v. State of Kerala & Ors. reported in (2015) 6 Supreme Court Cases page 685 K. Duraisamy and Another v. State of T.N. and Others reported in (2001) 2 Supreme Court Cases page 538 and Andhra Pradesh Public Service Commission v. Baloji Badhavath and others reported in (2009) 5 Supreme Court Cases page 1.15. Further it is contended by Shri Mitul Shelat learned counsel that there is no notification in the State of Gujarat declaring difficult and rural areas for the purpose of extending the benefit of reservation to in-service candidates. In absence of such notification it is not possible to extent such reservation at all.16. Shri S.N. Shelat learned Senior Advocate appearing for the Medical Council of India has contended that with regard to percentage of seats reserved in Diploma Courses and whether incentive marks are to be given for in-service candidates working in rural and difficult areas are matters of policy of the State and to that extent the Regulations are mandatory. It is further stated that it is open for the State to frame its own policies having regard to local needs to extend percentage of reservation and further to decide whether any incentive marks are to be given or not for the in-service candidates working in rural and difficult areas.17. Having heard the learned counsels appearing for the respective parties we have perused the material on record.18. So far as the writ petition being Special Civil Application No.8310 of 2017 is concerned there are two issues arise for consideration. In the said petition it is the case of the petitioners that there cannot be any reservation to in-service candidates so far as Postgraduate Degree Courses are concerned. The very issue fell for consideration before the Hon'ble Supreme Court in Dinesh Singh Chauhan(supra). In the aforesaid judgment in clear terms the Hon'ble Supreme Court has held that no such reservation is permissible so far as admission to Postgraduate Degree Courses are concerned. In the said case while interpreting Clauses (IV) and (VII) of Regulation 9 of the Medical Council of India Postgraduate Medical Education Regulations 2000 the Hon'ble Supreme Court has held that reservation is permissible only for Postgraduate Diploma Courses and not for Postgraduate Degree Courses. In that view of the matter we are of the view that such issue is no more res integra and is squarely covered in favour of the petitioners to hold that there cannot be any reservation for Postgraduate Degree Courses for in service candidates at all times.19. With regard to reservation to physically challenged persons learned counsel Shri Mitul Shelat has placed reliance on the judgment of Rajesh Kumar Daria (supra). In the aforesaid judgment by referring to earlier case laws the Hon'ble Supreme Court has held that the reservations to physically challenged persons are horizontal reservations. It is also further held that the persons belonging to reserved category appointed to non-reserved posts on their own merit cannot be counted against the reserved quota. In that view of the matter even the said issue is also squarely covered to hold that the reservation of 3% of the available seats as contemplated under Rule 7 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules 2017 be treated as horizontal reservation and if any physically challenged person comes up for selection on his own merit the said post cannot be counted against the 3% quota reserved for physically challenged persons. Answers to both the issues are in favour of the petitioners in Special Civil Application No.8310 of 2017.20. In Special Civil Application No. 8579 of 2017 whether the impugned Government Resolution dated 21st April 2017 is valid or not is a question to be decided. Having regard to the fact that the reservation policy for in-service candidates in terms of Rule 6 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules 2017 is as per the policy of the State the State of Gujarat was notifying the policy for effecting reservation to in-service candidates. From time to time notifications were issued but the resolution which was issued in the year 2013 was to the effect of reserving 25% of seats in Postgraduate Degree and Diploma Courses for in-service candidates. With regard to giving incentive marks for in-service candidates working in rural and difficult areas at no point of time such a benefit was extended in the State of Gujarat. In view of the introduction of NEET the merit list is to be prepared based on the common entrance test at national level it is stated that the impugned resolution was issued restricting reservation to Postgraduate Diploma Courses and not to Postgraduate Degree Courses. Even otherwise we have held that such reservation to Postgraduate Degree Courses is not permissible at all in view of the judgment of the Hon'ble Supreme Court in the case of Dinesh Singh Chauhan (supra). In view of the said pronouncement of the Hon'ble Supreme Court we do not find any illegality in issuing the impugned Government Resolution by the Government to bring such reservation in conformity with the law declared in the judgment of the Hon'ble Supreme Court in Dinesh Singh Chauhan (supra).21. To consider other issues namely whether it is obligatory on the part of the State to provide 50% of the available seats to be reserved to physically challenged persons in Diploma Courses and whether incentive marks are to be given to in-service candidates who are working in rural and difficult areas we deem it appropriate to refer to the procedure for selection of candidates under Regulation 9 of the MCI Regulations. Relevant clauses IV and VII of Regulation 9 read as under:IV. The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidate shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Post-graduate courses from the said merit lists only:[Provided that in determining the merit of candidates who are in-service of Government/public authority weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test the remote and difficult areas shall be as defined by State Government/Competent authority from time to time.VII. 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service who have served for at least three years in remote and/or difficult areas. After acquiring the PG Diploma the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government/Competent authority from time to time.]22. On composite reading of the procedure under Clauses IV and VII of Regulation 9 we are of the view that it is for the States to have their own policy with regard to reservation of seats. It is true that from the judgment in the case of Dinesh Singh Chauhan (supra) the State cannot effect any reservation for a course for which reservation is not provided in the MCI Regulations. If a reservation is provided to Postgraduate Degree Courses which runs contrary to the Regulations framed by MCI it amounts to lowering the standards in selecting the candidates for admission to Postgraduate Degree Courses. In that view of the matter by applying the above said ratio and by considering the composite effect of the procedure contemplated under clauses IV and VII of Regulation 9 it is not obligatory on the part of the States either to give incentive marks for rural area candidates or to fix a prescribed 50% of available seats in Postgraduate Diploma Courses for in-service candidates. From the reply affidavit filed on behalf of the 1st respondent-State also there is no uniform application of 50% of reservation in all the States. As evident from the particulars given in the affidavit-in-reply filed on behalf of the 1st respondent the percentage of reservation for Postgraduate Diploma Courses varies from State to State and in some State incentive marks are given without giving any reservation. The percentage of reservation to extend the benefit of incentive marks is always dependent on local conditions of a particular State and there cannot be any mandate as contemplated under the Regulations for giving the percentage of reservation in Postgraduate Medical Diploma Courses by the States or to extend the benefit of incentive marks. Said issues are within the realm of the State to operate and same will not run contrary to the Regulations of MCI. By not extending the benefits of incentive marks or not adhering to the maximum percentage of reservation to in-service candidates for Postgraduate Diploma Courses it cannot be said that such steps amount to lowering the standards contrary to objectives of MCI Regulations. In that view of the matter looking at the reasons stated in the affidavit-in-reply we are of the view that such clauses in the Regulations cannot be held to be mandatory. Said view also gains the support from the contention advanced on behalf of MCI that it is for the State to have their own policy with regard to percentage of reservation for States in Diploma Courses and to extend the benefit of incentive marks for preparing the merit list for the purpose of admissions to Postgraduate Diploma Courses. While it is open for the States to give incentive marks to those persons who are serving in notified rural and difficult areas but at the same time when there is no such policy there is no legal right vested with the candidates to seek to extend such marks in absence of any such policy or rules in the State. So far as such steps taken by the respondents will not run contrary to MCI Regulations we cannot find fault with the States in not providing percentage of reservation to Diploma Courses in tune with the percentage as notified in the Regulations of MCI. Though the learned Senior Advocate Shri Shalin Mehta has placed reliance on the judgments in the cases of Dinesh Singh Chauhan(supra) and Sudhir(supra) we are of the view that both the judgments would not render any assistance in support of his contention that it is mandatory on the part of the States to provide reservation of 50% and to extend the benefit of incentive marks for rural and difficult areas for the purpose of preparing the merit list for admissions to Postgraduate Diploma Courses. In that view of the matter we do not find any merit in the writ petition in Special Civil Application No.8579 of 2017 for grant of relief as prayed for.23. For the aforesaid reasons Special Civil Application No.8310 of 2017 is allowed by declaring that there cannot be any reservation for Postgraduate Degree Courses for in-service candidates. At the same time we further declare that 3% reservation of seats to physically challenged to be treated as horizontal reservation and if any physically challenged person comes up for selection on one's own merit said seat cannot be counted against the 3% quota reserved for physically challenged persons.24. For the same reasons recorded above we do not find any merit in Special Civil Application No.8579 of 2017. Same is accordingly dismissed. No order as to costs.Application/Petition Allowed/Application/Petition Dismissed.