REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7939 OF 2019 (Arising from SLP(C) No. 7003 of 2017)

Yatinkumar Jasubhai Patel and others …Appellants

Versus

State of Gujarat and others …Respondents

WITH

WRIT PETITION (C) NO. 122 OF 2018

WRIT PETITION(C) NO. 1479 OF 2018

WRIT PETITION (C) NO. 1142 OF 2019

J U D G M E N T

M.R. SHAH, J.

Leave granted in the special leave petition.

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2. The “Institutional Preference” for Post Graduate Medical

Admissions is the core issue involved in these appeal/petitions.   

3. Pursuant to the order passed by a two Judge Bench of this

Court  dated  12.09.2018,  all these  appeal/petitions  are  placed

before the larger Bench.

4. Feeling aggrieved and dissatisfied with the impugned

judgment  and order  dated  22.02.2017 passed  by the  Division

Bench of the High Court of Gujarat in Special Civil Application

No. 19918/2016, by which the Division Bench has dismissed the

said writ petition upholding the vires of Rules 2, 3, 4.1 and 4.3

relating to admission to the Post Graduate Medical Courses

framed by the Gujarat University providing that the preference

shall be given to the candidates graduating from  the  Gujarat

University (providing for “Institutional Reservation”), the original

writ petitioners have preferred the special leave petition/appeal.

Thus, the original writ petitioners are challenging the

“Institutional Preference” in the Post Graduate Medical Courses.

4.1 Writ Petition (C) No. 1479 of 2018 under Article 32 of the

Constitution of India has been preferred by the petitioners also

challenging the policy of “Institutional Preference” for admission

to the Post Graduate Medical Courses insofar as respondent no.3

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– University of Delhi and respondent no.4 – Guru Gobind Singh

Indraprastha University is concerned.  Similar prayers are made

in Writ Petition (C) No. 122/2018 and Writ Petition(C) No.

1142/2019 also challenging the policy of “Institutional

Preference” in the Post Graduate Medical Courses.

4.2 For the sake of convenience, Civil Appeal arising from

Special Leave Petition(C) No. 7003/2017 arising out of the

impugned judgment and order dated 22.02.2017 passed by the

High Court of Gujarat is treated and considered as a lead matter

and the relevant rules of the Gujarat University relating to

admission to the Post Graduate Medical Courses framed by the

Gujarat University are considered.

5. In exercise of powers under Section 39 read with Section 32

of the Gujarat University Act, 1949, the Gujarat University has

framed the rules for the purpose of governing admission to Post

Graduate Courses.   The relevant Rules are Rules 2, 3, 4.1, 4.2

and 4.3, which read as under:

“2. As per directive of Hon’ble Supreme Court of India, New Delhi, 50% of total available seats in Academic year in various post graduate degree and diploma courses in each subject in Government Institution/Colleges will be filled up as a All India Quota Seats as per All India 50% quota rank by competent authority.  The remaining seats

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will be available for the candidates passing from Gujarat University in accordance  with  Rule 4.1.   The student passing from other statutory Universities within Gujarat State will be considered as per their merit in accordance with Rule 4.3.  

3. Remaining 50% (or more) of total seats after Rule 2.0 (and Rule 2.1) in post graduate courses will be filled up by the “Admission Committee” of University.

4.0 Selection: Selection of candidates eligible under rule 1 for seats under rule 3.0 will be done category and status wise on the basis of merits as laid down herein further.

4.1 Preference shall be given to candidates graduating from Gujarat University.

4.2 Deleted.

4.3 After the merit list prepared under Rule 4.1 is exhausted the candidates graduating from any other University located in Gujarat State will be considered.”

5.1 As per the aforesaid Rules, 50% of the total available seats

in the academic year in various Post Graduate Degree and

Diploma Courses in each subject in Government

Institution/Colleges will be filled up as “All India Quota Seats” by

competent authority and the remaining seats will be filled up in

accordance with Rule 4.1 of the Rules of the University.   As per

Rule 3 of the Rules,  remaining 50% of the total  seats in Post

Graduate Courses will be filled up by the “Admission Committee”

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of  University.   As per  Rule 4.3 of the Rules, after  merit list

prepared under rule 4.1 is exhausted, candidates graduating

from any other University located in Gujarat State will be

considered.

5.2 The original writ petitioners challenged the vires of the

afore­stated  Rules providing “Institutional Preference” – giving

preference to the candidates graduating from Gujarat University

mainly on the ground that in view of introduction of the National

Eligibility Entrance Test  (hereinafter referred to as  ‘NEET’) and

the admissions are to be given solely on the basis of the merits

and the marks obtained in the NEET, the Rules providing

“Institutional Preference” shall be violative of the Indian Medical

Council Act, 1956 and the Post Graduate  Medical Education

Regulations, 2000 framed under the Indian Medical Council Act.

That by the impugned judgment and order and after considering

the decisions of this Court in the cases of  Dr. Pradeep Jain v.

Union of India reported in 1984 (3) SCC 654; and  Saurabh

Chaudri v. Union of India reported in 2003 (11) SCC 146 and after

considering the scheme of the NEET (PG),  the High Court has

dismissed the said petition holding the “Institutional Preference”.

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Hence, the present appeal challenging the policy of “Institutional

Preference” in the Post Graduate Medical Courses.

6. Learned counsel appearing for the writ petitioners have

vehemently submitted that it  is true that earlier – prior to the

introduction of the  NEET, the “Institutional  Preference” in the

Post Graduate Medical Courses is held to be permissible.

However, in view of the introduction of the NEET which brings

about the change to the effect  that all  admissions to the Post

Graduate Medical Courses should be only on the basis of merit in

the  NEET, as  per  Regulation  9 of the  Post  Graduate  Medical

Education Admission Regulations, 2000, now “Institutional

Preference” would not be permissible and the same shall be ultra

vires the  Medical  Council  Act  and the  Regulations,  2000  and

contrary to the scheme of the NEET.

6.1 It is vehemently submitted by the learned counsel for the

writ petitioners that the purpose due to which such “Institutional

Reservation” was held permissible by this Court no longer exists

as now there exists 50% All India Quota and the admission is

also done on the basis of an All India Examination – NEET.

6.2 It is further submitted by the learned counsel for the writ

petitioners that even the MCI Regulations for the Post Graduate

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Admissions, namely, Regulations, 2000 do not permit

“Institutional Reservation”.   It is submitted that the MCI

Regulations have been held by this Court to be a complete Code

and therefore no reservations could be provided unless the same

is  permitted  under the regulations.   In support of the  above,

reliance is placed upon the decision of this Court in the case of

State of U.P. v. Dinesh Singh Chauhan reported in (2016) 9 SCC

749.

7. So far as the Delhi University and Guru Gobind Singh

Indraprastha  University  are  concerned, it is submitted  by the

learned counsel for the respective petitioners that under the MCI

Regulations, admissions are to be done only by way of two lists,

i.e., (i) 50% seats on the basis of “All India Merit List”; and (ii)

50% seats to  be filled  on the  basis  of “State­wise  List”.   It is

submitted that the admissions to the State Quota seats in the

aforesaid two Universities are not being done on unified “State­

wise List” but both the universities are preparing two separate

“University­wise” lists which is not in accordance with the MCI

Regulations.   

7.1 It is further submitted by the learned counsel for the

respective petitioners that the two universities have provided

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“Institutional Reservation” to an extent of 100% of the State

Quota seats, i.e., the entire State quota has been reserved for

their alumni completely denying opportunity of selection to other

State candidates.   It is submitted that the petitioners being

MBBS graduates from the State of NCT of Delhi are entitled to be

considered under the State quota seats.   It is submitted that at

present because of the “Institutional Reservation”, the petitioners

are not entitled to be considered under the State quota at all.  It

is submitted that therefore 100% “Institutional Reservation”

cannot at all be permitted even if it is otherwise held to be

permissible.

8. It is further submitted by the learned counsel for the writ

petitioners that in the case of  Dr. Pradeep Jain (supra),

“Institutional Preference” was limited to 50% of the total number

of  open seats.   It is  submitted  that the  same was held  to  be

permissible at a time when 100% seats in the State colleges were

filled up by the State.   It is submitted that in the case of  AIIMS

Students’ Union v. AIIMS reported in (2002) 1 SCC 428, the

“Institutional  Reservation”  was  permitted only to an extent of

25%.   It is submitted that similarly in the case of  Dr. Saurabh

Chaudhary (supra), the “Institutional Preference” was permitted

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to the extent of 50%.  It is submitted that even if this Court holds

the “Institutional Preference” permissible, in that case, the same

should be limited to the 50% of the total number of State quota

seats.

9. All these appeal/petitions are vehemently opposed by the

learned Advocates appearing on behalf of the respective States,

respective Universities and the learned counsel appearing on

behalf of the MCI.   Learned counsel appearing on behalf of the

respective respondents have vehemently submitted that, as such,

the  “Institutional  Preference” is  held to  be  permissible  by  this

Court right from 1971.   It is submitted that the issue involved

with respect to “Institutional Preference” is now not res integra in

view of the decisions of this Court in the cases of D.N. Chanchala

v. State of Mysore reported in (1971) 2 SCC 293; Dr. Pradeep Jain

(supra);  a Constitution Bench judgment in the case of  Saurabh

Chaudri (supra); and Gujarat University v. Rajiv Gopinath Bhatt

reported in (1996) 4 SCC 60.  It is submitted therefore now it will

not be open for the petitioners to again re­agitate the issue with

respect to “Institutional  Preference”.   It is submitted that the

relevant regulations prescribing “Institutional Preference” are

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absolutely in consonance with the law laid down by this Court in

the aforesaid decisions.

9.1 Learned counsel appearing on behalf of the MCI, while

opposing the present appeal/petitions, has vehemently submitted

that admission to Post Graduate Medical Courses in the medical

colleges is done on the basis of the NEET merit and 50% seats

are filled up on merit drawn on “All India basis” and 50% seats

are filled up on merit drawn on “State­wise basis”.   It is

submitted that earlier the Gujarat University used to hold

examinations for Post Graduate Medical Courses and now

instead of  such  test  by the  Gujarat  University,  merit is to  be

determined on the basis of NEET examination results.   It is

submitted that the National Board of Examinations is entrusted

with the job of holding NEET test for admission to Post Graduate

Medical  Courses.   It is  submitted  that  as per the  information

bulletin issued by the National Board of Examination, 50% of the

available seats are All India Quota seats and the remaining seats

are  to  be  filled either  by the  State  Government or  Colleges or

Universities at the institute level using NEET­PG score and as per

the applicable regulations and/or eligibility criteria, reservation

policy, etc.  It is submitted that for the remaining 50% seats, it is

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left  open for the State Government and Government Agency to

make admission  in such colleges,  universities  and  institutions

following the score obtained by the students in the NEET

examination.   It is submitted therefore that holding of common

examination cannot lead to invalidity of “Institutional Preference”

as has been held permissible by this Court in catena of decisions.

It is further submitted that after uniform entrance examination

through NEET, provisions of Section 10D does not debar source

from which admissions are to be made at the post graduate level.

9.2 Making the above submissions, it is prayed to dismiss the

present appeal/writ petitions.

10. The short question which is posed for consideration of this

Court is, whether after the introduction of the NEET Scheme, still

the “Institutional Preference” in the Post Graduate Medical

Courses would be permissible?

10.1 At the outset, it is required to be noted that, as such, and it

is not in dispute that such “Institutional Preference” in the Post

Graduate Medical Courses is held to be permissible by this Court

in catena of  decisions,  more particularly  a three  Judge bench

decision of this Court in the case of  Dr. Pradeep Jain (supra);  a

Constitution Bench decision of this Court in the case of Saurabh

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Chaudri (supra);  and in the case of  Saurabh Dwivedi v. Union of

India reported in (2017) 7 SCC 626.

10.2 In the case of  Dr. Pradeep Jain (supra), it is observed and

held by this Court as under:

“We are therefore of the view that so far as admissions to post­graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference.   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 a 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 post­graduate 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 post­graduate course.   This outer limit which we are fixing will also be subject to revision on the lower  side  by the Indian Medical  Council in the  same manner as directed by us in the case of admissions to the MBBS course.   But, even in regard to admissions to the post­graduate course, we would direct that so far as super specialities such as neuro­surgery and cardiology are concerned, there should be no reservation at all even on the basis of  institutional preference and admissions should be granted purely on merit on all­India basis.”

[emphasis supplied]

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10.3 Thereafter, a five Judge Bench of this Court in the case of

Saurabh Chaudri (supra)  has reiterated the scheme of

“Institutional Preference” as framed in  Dr. Pradeep Jain  (supra)

and has approved the “Institutional Preference” confined to 50%

of the total number of open seats.   In that decision, this Court

also took note of the subsequent decision in the case of  Dinesh

Kumar (Dr.) (II) v. Motilal Nehru Medical College, reported in (1986)

3 SCC 727  fixing the “Institutional Preference” to the extent of

25%.  However, after taking note of the said decision, this Court

has reiterated the scheme framed in   Dr.  Pradeep Jain  (supra)

providing “Institutional Preference” confined to 50% of the total

number of open seats.   In the case of  Saurabh Dwivedi (supra),

this Court has again approved the “Institutional Preference”.

Thus, right from 1971 onwards till 2017, consistently this Court

has approved and/or permitted the “Institutional Preference” in

the Post Graduate Medical Courses.

However, it is the case on behalf of the petitioners that in

view  of the introduction  of the  NEET  Scheme  and in view  of

Section 10D of the MCI Act, by which admissions are to be given

on the  basis  of the  merit in the  NEET,  such an  “Institutional

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Preference” would not be permissible.   It is required to be noted

that introduction of the NEET has, as such, nothing to do with

any preference/Institutional Preference, more particularly the

“Institutional Preference” as approved  by this  Court time and

again.   The purpose and object of the introduction of the NEET

was to conduct a uniform entrance examination for all medical

educational institutions at the under­graduate level or post­

graduate  level and admissions at the under­graduate  level and

post­graduate level are to  be  given solely on the  basis  of the

merits and/or marks obtained in the NEET examination only.  It

is required to  be  noted that  earlier the respective  universities

including the  Gujarat  University  used to  hold  examination for

post­graduate admission to medical courses and now instead of

such tests by the Gujarat University/concerned universities,

merit is to be determined on the basis of the NEET examination

results only and admissions are required to be given on the basis

of such merits or marks obtained in NEET.   The only obligation

by virtue of introduction of NEET is that, once centralized

admission test is conducted, the State, its agencies, universities

and institutions cannot hold any separate test for the purpose of

admission to Post­Graduate and PG and Diploma Courses and

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such seats are to be filled up by the State agencies,

universities/institutions for preparing merit list as per the score

obtained by the applicants in NEET examination and therefore by

introduction of the NEET, Section 10D of the MCI, Act has been

amended, consequently amendment to the Post­Graduate

Education Regulations, 2000, admission to Post Graduate

Courses are made providing for solely on the basis of the score

secured by the candidates seeking admission based on

centralized examination, i.e., NEET.

10.4 Even while giving admissions in the State

quota/institutional reservation quota, still the admissions are

required to be given on the basis of the merits determined on the

basis of the NEET examination results.  Under the circumstances,

introduction of the NEET Scheme, as such, has nothing to do

with the “Institutional Preference”.   Therefore, the change by

introduction of the NEET Scheme shall not affect the Institutional

Preference/Reservation as approved by this Court  from time to

time in catena of decisions, more particularly the decisions

referred to hereinabove.   Under the guise of introduction of the

NEET Scheme, the petitioners cannot be permitted to re­agitate

and/or re­open the issue with respect to Institutional Preference

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which has been approved and settled by this Court in catena of

decisions, more particularly the decisions referred to hereinabove.

11. Now so far as the submission on behalf of the petitioners

that if the 50% seats are reserved for State quota and if

institutional preference/reservation is permitted to the extent of

50% of the total number of open seats, in that case, not a single

seat in the State quota shall be available and therefore the

percentage of Institutional Preference may be reduced to the

extent of 25% or so is concerned, at the outset, it is required to

be noted that as such the Institutional Preference to the extent of

50% of the total number of open seats has been approved by this

Court in catena of decisions, more particularly the decisions

referred to hereinabove.  The decision of this Court in the case of

Dinesh Kumar (Dr. )(II) (supra)  permitting 25% Institutional

Preference  has been distinguished by  a Constitution Bench of

this  Court in the case  of  Saurabh  Chaudri(supra).   Therefore,

once the Institutional Preference to the extent of 50% of the total

number of open seats has held to be permissible, in that case,

thereafter it will be for the appropriate authority/State to

consider how much percentage seats are to be reserved for

Institutional Preference/Reservation.  It will be in the realm of a

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policy decision and this Court cannot substitute the same, unless

it is held to be arbitrary and/or mala fide and/or not permissible.

As observed hereinabove, a five Judge Bench of this Court in the

case of  Saurabh Chaudri (supra)  has categorically

allowed/permitted/approved the Institutional

Preference/Reservation in the post graduate medical courses to

the extent of 50% of the total number of open seats.   

12. Therefore, for the reasons stated above and considering the

decisions of this Court in the cases of  Dr. Pradeep Jain (supra); a

Constitution Bench decision of this Court in the case of Saurabh

Chaudri (supra);  and  Saurabh Dwivedi (supra),  Institutional

Preference to the extent of 50% is approved and it is observed

and held that introduction of the NEET Scheme shall not affect

such Institutional Preference/Reservation.   Such a regulation

providing 50% Institutional Preference/Reservation shall not be

in any way ultra  vires to  Section 10D of the  MCI  Act.  Even

otherwise, as observed hereinabove, even in the case of

Institutional Preference/Reservation, the admissions in the post

graduate courses are to be given on the basis of the merits and

marks obtained in the NEET examination result only.

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In view of the above and for the reasons stated above, all

these appeal/writ petitions deserve to be dismissed and are

accordingly dismissed.  No costs.

……………………………………..J. [ARUN MISHRA]

……………………………………..J. [M.R. SHAH]

NEW DELHI; ……………………………………..J. OCTOBER 04, 2019. [B.R. GAVAI]  

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