Allowed

Shivam H Thakkar S/O Harshadbhai Thakkar v. State of Gujarat

Gujarat HC7 May 2018SCA/4390/2018

Case brief

AI extract

What is this about?

The High Court of Gujarat held that excluding graduates from Deemed Universities situated within Gujarat from State quota admissions for Post-Graduate medical courses is arbitrary. The court found this exclusion violated Article 14 of the Constitution, confirming such candidates as eligible for consideration based on their NEET-PG merit.

What did the court decide?

The impugned Rule 4(2) is declared illegal and arbitrary; the petitioner and others are treated as eligible candidates for State quota admissions based on NEET-PG 2018 merit.

Shivam H Thakkar S/O Harshadbhai Thakkar Vs State… — Education and Admissions | Gujarat HC (2018)

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C/SCA/4391/2018 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 4391 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 4390 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 4393 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 4395 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY

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and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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KEYUR KUMAR S/O BHAVIKBHAI RAWAL Versus

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STATE OF GUJARAT

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Appearance in Special Civil Application Nos.4391,
4393 and 4395 of 2018:

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MR PARITOSH GUPTA, for the PETITIONERS MS MANISHA LAVKUMAR, GP WITH MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1 and 2

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MRS VD NANAVATI(1206) for the RESPONDENT(s) No. 3 MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 4 UNSERVED WANT OF TIM(31) for the RESPONDENT(s) No. 5,6

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Page 1 of 24

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C/SCA/4391/2018 CAV JUDGMENT

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Appearance in Special Civil Application No.4390
of 2018:

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MR PR THAKKAR(899) for the PETITIONER(s) No. 1,2,3,4,5,6,7,8 for the RESPONDENT(s) No. 2

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MS MANISHA LAVKUMAR, GP WITH MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1 and 2 MRS VD NANAVATI(1206) for the RESPONDENT(s) No. 3 MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 4

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and

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HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 07/05/2018

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COMMON CAV JUDGMENT

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(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)

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1.In view of the common questions of law

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and facts involved in these petitions, as such,
they are heard together and disposed of by this
common judgment.

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2.For the purpose of disposal, we draw the
facts from Special Civil Application NO.4391 of
2018.

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3. The petitioner is a graduate completed

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his Bachelor of Medicine and Bachelor of Surgery

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C/SCA/4391/2018 CAV JUDGMENT

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(M.B.B.S.), from the 4threspondent Deemed

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University, situated in Vadodara in Gujarat.
Admissions to post-graduate medical educational
courses, are governed by the Gujarat
Professional Post-Graduate Medical Educational

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Courses (Regulation of Admission) Rules, 2018,
framed in exercise of powers under section 20 of
the Gujarat Professional Medical Educational
Colleges or Institutions (Regulation of
Admission and Fixation of Fees) Act, 2007. The
petitioner has challenged the vires of Rule 4(2)
of the Rules, referred above, by virtue of
which, the petitioner is excluded from
consideration for admission in Post-Graduate
medical courses in the State quota.

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4.By virtue of the amendments made to the

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regulations framed under the Medical Council of
India Act, 1956, the 3rd respondent Medical
Council of India has introduced a common
entrance examination i.e. “National Eligibility-
cum-Entrance Test(NEET-PG)”, which is the common

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Page 3 of 24

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C/SCA/4391/2018 CAV JUDGMENT

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windoweligibility-cum-rankingexamination
prescribed for admissions to various Post-
Graduate Courses. By virtue of the said common
entrance examination, there is no other entrance
examination, either at the State or the
institutional level, held for entry into M.D.,
M.S., P.G. Diploma Courses. The petitioner has
appeared in the said NEET-PG 2018 examination,
which was held on 7.1.2018 to secure admission
in professional colleges/institutions providing
Post-Graduate Courses. The results of the NEET-

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PG were declared on 23.1.2018. It is the case

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of the petitioner that, he secured 432 marks out
of the total of 1200 marks in NEET.

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5.All the available seats in the Post-

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Graduate medical courses, are to be filed as per
the merit list prepared on the basis of their
ranking in their NEET-PG examination. 50% of the
seats are to be filled in by All India Quota and
the remaining 50% are retained by the State of
Gujarat. The Admission Committee constituted has

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C/SCA/4391/2018 CAV JUDGMENT

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to fill up the seats as per the rules framed by

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the State by applying reservation policies, etc.

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6. In the impugned Rules, the Rule 2(k)

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defines “University” as under:

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“”University” means a university or private
university established under any law of the
Government of Gujarat, situated in State of
Gujarat and imparting professional post-
graduate medical educational courses leading
to the award of a degree or diploma approved
or recognized by competent statutory
authority.”

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7.The Rule 3 of the Rules deals with the

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seats available for admission. Eligibility
criteria is notified under Rule 4. The Rule 4 of

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the Rules reads as under:

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“4.Eligibility for Admissions.-

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1.A candidate shall be an Indian
Citizen:

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Provided that a candidate who desires
admission on Non-Resident Indian seats
shall be a Non-Resident Indian, or a child
or ward of the Non-Resident Indian and

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C/SCA/4391/2018 CAV JUDGMENT

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completed his MBBS/BDS or equivalent
course from medical institution with in
or out side India and qualify in NEET-PG
as per the criteria laid down by the
competent authority.

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2.The candidate must have completed
the recognized MBBS or BDS course from
University established under any law of
Government of Gujarat and situated in
State of Gujarat and completed compulsory
rotating internship on or before 3lst
March of academic year of admission;

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3.A candidate shall have to appear in
NEET-PG Entrance Examination conducted
for the year for which admissions are
being held in respective year for
admission to Post-graduate Medical
Courses and qualify in NEET-PG as per
criteria laid down by the competent
authority;

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4.A candidate who has secured
admission under these rules in any year
shall not be eligible for further
admission to any course until the period
within which he might have completed
the course in which he has secured
admission.”

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8. The Rule 5 of the Rules deals with

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reservation of seats. The relevant Sub-Rules(1)
and (2) of Rule 5 read as under:

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“5.Reservation of Seats.-

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(A) For Government Seats,-

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C/SCA/4391/2018 CAV JUDGMENT

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(1)Fifty per cent. (50%) of available
seats for admissions in each Government
Medical and Dental College shall be
reserved for the candidates of All India
Quota who are allotted for admission by
the Director General of Health Services,
Government of India, New Delhi.

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(2) After deduction of the seats referred
to in sub-rule (1), the remaining
available seats in Government Colleges,
shall be distributed as 25% Institutional
Preference Seats and 75% All Gujarat
Students Quota Seats and in Government
Seats of SFI Colleges also 25%
Institutional Preference Seats and 75% All
Gujarat Students Quota Seats. The
following reservation shall apply to both
the Institutional Preference and All
Gujarat Quota Seats and the seats reserved
only for the candidate who are origin of
Gujarat and falling under the following
categories, namely:-

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(a)Scheduled Castes : 7%
(b)Scheduled Tribes : 15%
(c)Socially and Educationally
Backward Classes :27%

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Page 7 of 24

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C/SCA/4391/2018 CAV JUDGMENT

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For Allocation of seats (SC/ST/SEBC/OPEN
and PH), under different categories, a
roster system as notified by the State
Government shall be followed. The roster
register shall be maintained at State
level for all the Courses and categories
and used for allocation of seats as per
roster register.

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Explanation - The reservation of the
seats shall be for the candidates
belonging to the Scheduled Castes,
ScheduledTribes,Sociallyand
Educationally Backward Classes recognized
as such in the State of Gujarat and for
not those who have migrated from other
States.”

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9.Though the 4th respondent institute is

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situated in the State of Gujarat, as much as it
is not a University established under any law of
Government of Gujarat, the petitioner is
excluded from consideration in the State of
Gujarat.

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10. It is the case of the petitioner that,

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the 4th respondent University is undoubtedly

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situated in the State of Gujarat and offers MBBS
degree recognized by the 3rd respondent Medical
Council of India and, merely because the said
University is a Deemed University established
under the University Grants Commission Act,
students of such University are arbitrarily
excluded from the purview of the State Quota for
admission into the professional medical colleges
situated in the State of Gujarat. It is the
case of the petitioner that, no rationale can be
drawn for the purpose of justifying exclusion of
candidatesholdingdegreesfromDeemed
University, situated in the State of Gujarat.
The said exclusion clearly suffers from the vice
of arbitrariness and is in violation of rights
guaranteed under Article 14 of the Constitution
of India. It is the case of the petitioner
that, though the 4th respondent College is a
Deemed College, as much as it is situated within
the State of Gujarat, the students of such
College cannot be denied entry to the Post-
Graduate medical admissions in the State Quota.

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Page 9 of 24

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C/SCA/4391/2018 CAV JUDGMENT

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It is stated in the petition that, the 4th
respondent University, prior to its declaration
as a Deemed University, was affiliated to the
State University and it was, upon recognition
as a deserving institute providing high quality
education, granted recognition as a Deemed
University.

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11. On behalf of the respondent Nos.1 and 2,
affidavit-in-reply is filed by the Member
Secretary of the Admission Committee for
Professional Courses. In the reply affidavit,
while denying the various allegations made by
the petitioner, by referring to various
provisions of the Gujarat Professional Medical
Educational Colleges or Institutions (Regulation
of Admission and Fixation of Fees) Act, 2007,
reference is made to the order dated 09.05.2017
passed in WP (C) No.267 of 2017 by the Hon'ble
Supreme Court in the case ofDar-us-Slam

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Educational Trust and Ors. V/s MCI and Ors ., wherein directions were issued to the effect

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C/SCA/4391/2018 CAV JUDGMENT

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that the counseling of Deemed University is to
be undertaken by the Director General of Health
Services, Government of India, New Delhi. It is
pleaded that, it is the settled proposition of
law that, institutional preference in

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admissions to technical and medical institutions
is to be regarded as constitutionally
permissible. Reliance is placed on the judgment
of the Hon'ble Supreme Court in the case of
Pradeep Jain and Others Vs. Union of India and

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Others reported in (1984)3 Supreme Court Cases
654 and also the case of D.N. Chanchala Vs.

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State of Mysore & Ors. reported in (1971)2 SCC
293.

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12.In the connected matter in Special Civil
Application No.4395 of 2018, reply affidavit is
filed on behalf of the 3rd respondent, Medical
Council of India.

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13. We have heard learned counsel, Mr.
Paritosh Gupta for the petitioners in Special

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Page 11 of 24

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C/SCA/4391/2018 CAV JUDGMENT

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Civil Application Nos.4391, 4393 and 4395 of
2018, learned counsel, Mr. P.R.Thakkar for the
petitioner in Special Civil Application No.4390
of 2018, Ms. Manisha Lavkumar, learned
GovernmentPleaderappearingwithMr.
K.M.Antani, learned Assistant Government Pleader
for the respondent Nos.1 and 2, Ms.V.D.Nanavati,
learned counsel for respondent No.3 and Mr.
Mitul Shelat, learned counsel for respondent
No.4.

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14. It is contended by learned counsel, Mr.

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Paritosh Gupta that the impugned rule is
contrary and illegal, as it excludes the
graduates, who have graduated from Deemed
Universities, from the eligibility criteria for
Post-Graduate medical admissions in the State of
Gujarat. It is submitted that, merely because
counseling for admissions to Deemed Universities
is done by Director General of Health Services
in All India Quota, same is no reason to exclude

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the graduates, who have graduated from the

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C/SCA/4391/2018 CAV JUDGMENT

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institutes in the State of Gujarat, from the
eligibility criteria for entry into Post-
Graduate medical admissions in the State of
Gujarat. It is submitted that, the concept of
institutional preference is wrongly being
interpreted by the respondents, so as to exclude
the students of Deemed Universities from the

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purview of the State Quota for the purpose of
admissions in Post-Graduate medical educational
courses. It is submitted that, even for the
current academic year, students from deemed
Universities are allowed in other States.
Whereas in the State of Gujarat, by virtue of

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the impugned rule, which is framed by
misconstruing the directions of the Medical
Council of India, the students from Deemed
Universities are sought to be deprived of
admission in the State Quota. It is submitted
that, merely because counseling power is given

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to Director General of Health Services with

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regard to Deemed Universities, same is no ground
to deny students from Deemed Universities for

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C/SCA/4391/2018 CAV JUDGMENT

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seeking admission to Post-Graduate medical
courses in the State Quota. Such denial by
virtue of the impugned rules is in violation of
fundamental rights guaranteed under Article 14
of the Constitution of India.

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15. On the other hand, Ms.Manisha Lavkumar,

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learned Government Pleader appearing for the
State has submitted that, the eligibility
criteria for admission to Post-Graduate medical
educational courses is as per the rules framed
under Gujarat Professional Post-Graduate Medical
Educational Courses (Regulation of Admission)
Rules, 2018. It is submitted that, all the
Government colleges and colleges affiliated to
Universities in the State constitute a different
class, to permit such students in State Quota.
It is submitted that, as Deemed Universities
are having the characteristics of Central
Universities, powers of counseling are given to
Director General of Health Services, as per the
directions of the Hon'ble Supreme Court of

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India, as such, they are not eligible to seek
admission in the State of Gujarat. She has
relied on the judgments in the cases of
Dr.Pradeep Jain and Others Vs. Union of India
and Others reported in (1984)3 Supreme Court
Cases 654, Saurabh Chaudri & Others Vs. Union of

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India & Others reported in (2003)11 SCC 146,
Division Bench judgment of this Court in the

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case of Yatinkumar Jasubhai Patel Vs. State of
Gujarat & Ors. reported in 2017(4) G.L.R. 2963
and judgment dated 1st May, 2015 in Letters
Patent Appeal No.551 of 2013 of Delhi High
Court.

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16. Learned counsel, Ms. V.D.Nanavati

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appearing for respondent No.3-Medical Council of
India has submitted that, the impugned rules are
not in conflict with the regulations framed by
Medical Council of India under Medical Council
of India Act, 1956. It is submitted that, it is

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open for the States to frame their own policies,
for the purpose of regulating admissions, as per

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C/SCA/4391/2018 CAV JUDGMENT

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the rules framed by the State, so far as State
quote seats are concerned.

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17. Mr. Mitul Shelat, the learned counsel
appearing for the 4th respondent has supported
the case of the petitioners by submitting that,
there is no reason or justification to exclude
the graduates of the 4th respondent University
from the eligibility for admission to Post-
Graduate Medical Educational Courses from the
State quota.

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18. Having heard the learned counsels

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appearing for the parties, we have considered
the material placed on record.

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19. It is clear from the material placed on
record that, out of the total available seats in
Post-Graduate medical courses, 50% are retained
in the State Quota and 50% are in the All India
Quota.

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20. In the case of Dr.Pradeep Jain and
Others Vs. Union of India and Others reported

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C/SCA/4391/2018 CAV JUDGMENT

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in (1984)3 Supreme Court Cases 654, the Hon'ble

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Supreme Court has considered the matter relating
to admission to medical colleges and reservation
of seats for residents of States or students of
the same University. In the aforesaid judgment,

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the Hon'ble Supreme Court has held that, having
regard to the socio-economic disparities and
inequalities, certain percentage of seats can be
permitted to be reserved, based on the residents
or institutions in State. In the said judgment,
it is held that the extent or limit of such
reservation would depend on particular facts and
circumstances. In the said judgment, for
admission to Post-Graduate medical courses, the
Hon'ble Supreme Court has upheld 50% for
institutional preference.

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21. In the case of Saurabh Chaudri & Others

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Vs. Union of India & Others reported in (2003)11
SCC 146,the Hon'ble Supreme Court has
considered the reservation by way of
institutional preference in Post-Graduate

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C/SCA/4391/2018 CAV JUDGMENT

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medical courses and held that it should be
confined to 50% of the seats.

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22.In the Division Bench judgment of this Court

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in the case of Yatinkumar Jasubhai Patel Vs.
State of Gujarat & Ors. reported in 2017(4)

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G.L.R. 2963, we have confirmed the rules,
providing for institutional preference for
candidates from Gujarat University even after
introduction of NEET.

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23.The issue, which crops up for

¶149

consideration in this case, is altogether
different from the concept of institutional
preference. For admission to the Post-Graduate
medicaladmissioncourses,NEET-PGwas
introduced, which is the sole and common
entrance test for the purpose of preparing the
merit lists for admissions to Post-Graduate
medical admission courses for the State Quota

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and All India Quota. All the available seats in
Central Institutes will go to the pool of All

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C/SCA/4391/2018 CAV JUDGMENT

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India Quota, whereas 50% of available seats from
the States, Government Institutions, affiliated
and grant-in-aid institutions will go to the All

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India Quota. In the seats available for the
State Quota, there is also reservation for

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institutional preference. In the present case,
it is to be noticed that the petitioner is a
student graduated from a Deemed University,
situated in the State of Gujarat. The impugned
rules exclude the petitioner from consideration
in the State Quota only on the ground that, he
has not studied in any of the affiliated
Universities established under State laws.
Merely because Director General of Health
Services is empowered for the counseling of the
seats available in Deemed Universities, same is
no ground to exclude the graduates, who have
graduated in Deemed Universities in the State
for the purpose of eligibility for admissions to

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Post-Graduate medical courses in the State.

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Whether the impugned rule infringes upon the
rights enshrined under Article 14 of the

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C/SCA/4391/2018 CAV JUDGMENT

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Constitution of India or not can be looked into
from another angle. It is to be noticed that, a
student of State affiliated University, after
completing course in MBBS, is eligible for 50%
of the State Quota seats and also for All India

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Quota seats but, at the same time, a student,
who studied MBBS Course from Deemed University,
is eligible for All India Quota only but not for
the State Quota seats. We are of the view that,
there is a clear infraction of the rights of the
petitioner guaranteed under Article 14 of the
Constitution of India. Further, having regard to the
objective for retention of 50% of the available
seats for State Quota, there is no justification to
deny admissions to Post-Graduate medical courses,
for pass-outs of medical courses from Deemed
University, situated in Gujarat.

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24.The judgment in the case of Dar-us-Slam

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Educational Trust and Ors V/s MCI and Ors, has
not dealt with the issue namely, whether a
student of Deemed University situated in the

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State is eligible for the State Quota or not. In
the said judgment, the Hon'ble Supreme Court,
while observing that common counseling for
admission to All India Quota seats in Government
Medical Colleges shall be conducted by Director
General of Health Services, has held that such
counseling shall include Deemed Universities as
they have an all India character. It is difficult
to accept the defense of the respondents that

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the students, who graduated from Deemed
Universities in the State, are excluded from the
purview of consideration as much as counseling
power of such Universities is given to Director
General of Health Services. Contribution of

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seats in the Post-Graduation from Deemed
Universities cannot be linked to eligibility of
graduates to consider for admission in the State
Quota seats. The learned counsel appearing for
the petitioners has also placed on record the
Information Brochure issued by the State Common
Entrance Test Cell, Mumbai for NEET-PG 2018 in
the State of Maharashtra. In the rules of

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Maharashtra, merely it is stated that students,
who have passed final MBBS examination from the
medical colleges situated in the State at
Maharashtra are eligible for admission to Post-
Graduate medical educational courses. However,

¶172

such medical colleges should have been
affiliated to Maharashtra University of Health
Association or Medical Colleges affiliated to
Deemed University, as per University Grants
Commission Act. From a perusal of the said
rules, it is clear that, the students, who have
graduated either from Deemed University or
otherwise or from the colleges situated in the
State of Maharashtra, are made eligible for

¶173

admission to Post-Graduate medical educational
courses. The same will also support the case of
the petitioner. Otherwise, if the impugned rules

¶174

are allowed to stand, it excludes the students,
who have graduated from Deemed University from
the eligibility criteria for admission to Post-

¶175

Graduate medical courses, which is a clear
infraction of equality guaranteed under Article

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C/SCA/4391/2018 CAV JUDGMENT

¶178

14 of the Constitution of India.

¶179

25. Learned Government Pleader has relied on

¶180

the judgment dated 1st May, 2015 in Letters
Patent Appeal No.551 of 2013 of Delhi High
Court. However, we are of the view that, having
regard to the facts of the case on hand, the
aforesaid judgment would not render any
assistance in support of the case of
respondents.

¶181

26. For the aforesaid reasons, we are of the
view that the petitioner has made out a case for
grant of relief as prayed for. Accordingly,
Special Civil Application No.4391 of 2018 is
allowed. The Rule 4(2) of the Gujarat
Professional Post-Graduate Medical Educational
Courses (Regulation of Admission) Rules, 2018,
to the extent it excludes the students, who have
graduated their MBBS course from deemed
university, situated within the State of
Gujarat, for admission to Post-Graduate Medical
Educational Courses, is declared as illegal and

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arbitrary. We direct the respondents to treat
the petitioner as an eligible candidate to
consider his claim for admission to Post-
Graduate Medical Educational Courses in the
State Quota in unfilled seats, as per his merit

¶185

secured in NEET-PG 2018 for the academic year
2018-19, subject to fulfilling all other
eligibility criteria.

¶186

27. Following the aforesaid judgment,

¶187

Special Civil Application Nos.4390, 4393 and
4395 of 2018 are allowed with similar
directions. No order as to costs. Consequently,
IA No.1 of 2018 in Special Civil Application
No.4395 of 2018 also stands disposed of.

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(R.SUBHASH REDDY, CJ)

¶189

(VIPUL M. PANCHOLI, J)

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RADHAKRISHNAN K.V.

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Page 24 of 24

Shivam H Thakkar S/O Harshadbhai Thakkar v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Shivam H Thakkar S/O Harshadbhai Thakkar v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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