Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., heard a writ petition which was filed Association of Private

Universities, Madhya Pradesh and Shri J.N. Chouksey, Chairman & Chancellor of one such Private University, challenging constitutional validity of Rule 2(13) read with Entry 3 and 4 of Schedule I of the Madhya Pradesh Medical Admission Rules, 2018 (Admission Rules of 2018) framed under Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (the Act of 2007) as being violative of Articles 14 and 19(1)(g) of the Constitution of India and repugnant to Regulation 9 and other provisions of the Medical Council of India Postgraduate Education Regulations, 2000 (Regulations of 2000).

The members of the petitioner association claim the right to admit the meritorious students from the merit list prepared by National Eligibility-cum-Entrance Test (for short “NEET”).

Counsel for the petitioners argued that there cannot be 100% reservation on the ground of domicile residence in study course of higher levels in medical education, specifically for admission to postgraduate medical courses. He further submitted that giving preference on the basis of domicile leads to loss of excellence as also merit in the case of admissions to medical courses whether it is UG or PG. It was further submitted that the concept of ‘institutional reservation’ applies only in the same university or same college. Counsel for the petitioners argued that impugned clause giving preference to domicile student to the extent of 100% seats, completely eliminates competition with far more meritorious candidates from outside the State, runs foul of Article 14 of the Constitution of India. The ‘reasonable object’ which is sought to be achieved by making such an omnibus provision excluding competition, merit and excellence at the national level, besides being arbitrary, is highly discriminatory. The impugned clause results in complete freezing of seats in favour of candidates who are either domicile of M.P. or who have done their MBBS from the medical colleges of the State. Reservation in excess of 50%, howsoever laudable, is constitutionally impermissible and unacceptable. The impugned clauses 3 and 4 of Entry 3 are thus ultra vires Article 14, 19(1) (g) and 21 of the Constitution of India.

Government Advocate for the respondent-State at the outset raised preliminary objection with regard to maintainability of the writ petition at the instance of the

Association of Private Universities contending that no non-domicile candidate has ever raised any grievance as regards the impugned rule and, therefore, the Union of Private Universities/Private Medical Colleges can have no legitimate grievance with the impugned rule giving preference to the candidates domiciled in the State of Madhya Pradesh, as what they are concerned with is the allocation of the students and the fee which they charge. He further submitted that impugned provision clearly shows that there is no ‘wholesale reservation’ ‘regardless of merit’, much less on the basis of mere domicile of the State. There is no complete bar for admission of those candidates who are domiciled outside the State as they may participate in the first round itself if they have passed their MBBS/BDS examination from a medical/dental college situated in the State of Madhya Pradesh. As regard those who are not domiciled in the State or have not passed MBBS/BDS examination in the State, they are also eligible for admission but only from second round onwards in the event of non-availability of candidates from first two streams. It was submitted that the object of giving preference to the domicile and institutional candidates was to ensure that more of those candidates take admission in the PG/specialized courses in the State whose possibility to serve the people of MP after completing of their PG course is more.

The Court after the submissions, filtered that the primary question therefore would be whether under the impugned provision the State was competent to give priority to the students domiciled in the State of Madhya Pradesh including those who have passed out MBBS examination from anywhere in the State of Madhya Pradesh or would the provision for making such reservation or in other words, for identifying the source of admission was beyond its competence?

The Court relied on the judgment of the Constitutional Bench of the Supreme Court in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine 699 wherein it was authoritatively held that the Union cannot with reference to its power under Entry 66 List I of the 7th Schedule of the Constitution provide for anything with respect to reservation/percentage of reservation and/or even mode of admission in the State quota and that this power is conferred upon the States under Entry 25 List III of 7th Schedule.

After which the relevant question to be assessed was as to what extent such a reservation or source of admission, can be made in respect of the seats in postgraduate medical courses in the private medical colleges?

In view of the peculiarity attached to the impugned Admission Rules of 2018, the question that was required to be answered is as to what extent such preference on the basis of domicile can be given and whether the limit of 50% propounded by the Supreme Court in case of Dr. Pradeep Jain v. Union of India, (1984) 3 SCC 654 and in the subsequent judgments, for institutional preference, should also apply to preference given on the basis of domicile? This question directly fell for consideration of the Supreme

Court in Dr. Tanvi Behl v. Shrey Goel, (2020) 13 SCC 675 in which the Court noted the similar reservation/preference has been given in favour of domiciles by as many as 13 states, details of which have been enumerated in Para 11 of the report.

The Court stated that the contention of the Government advocate that the decision in Dr.Tanvi Behl does not apply for admission to the PG Medical study courses in private medical colleges as it only deals with the State quota seats in government medical colleges cannot be countenanced for the simple reason that neither the MCI Postgraduate Regulations, 2000 nor the Admission Rules of 2018 make any distinction between the seats of the State quota in government medical colleges and the seats in the private medical colleges.

Unlike the government medical colleges, private medical colleges are not required to part with 50% of the seats in favour of all India quota, but that by itself does not give any authority to private medical colleges to fill up those seats on their own. All the seats even in private medical colleges are required to be filled up as per the common counseling with reference to Clause 9A(3) of the MCI Regulations, 2000 in the same manner in which 50% seats of the State quota in the government colleges are filled, on the basis of common counseling under the overall superintendence, direction and control of the State Government.

The Court didn’t deem it appropriate to interfere with the impugned provision as question of law involved in the present matter has been already referred to the Larger Bench of the Supreme Court and further stated that decision of the question whether in view of Section 8 of the Act of 2007, the State Government is empowered to only provide reservation in favour of SC/ST/OBC and further whether the State can identify the source of admission from amongst candidates domiciled in the State of Madhya Pradesh, as a separate class, has to await the answer of reference by the Larger Bench in Dr.Tanvi Behl case and the decision of which shall be binding on the parties.[Association of Private Universities v. State of M.P., Writ Petition No.6509 of 2019, decided on 21-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

For the petitioners: Shri Siddharth R. Gupta

Government Advocate for respondent 1& 2: Shri Bramhadatt Singh

For respondent 3: Shri Anoop Nair

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