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PETITIONER: MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS.

       Vs.

RESPONDENT: THUKRAL ANJALI DEOKUMAR & Ors.

DATE OF JUDGMENT07/03/1989

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) THOMMEN, T.K. (J)

CITATION:  1989 AIR 1194            1989 SCR  (1) 919  1989 SCC  (2) 249        JT 1989 (1)   468  1989 SCALE  (1)670  CITATOR INFO :  R          1992 SC1475  (4,5)

ACT:     Constitution of India, 1950--Art. 14--Educational Insti- tutions--Medical   Colleges--Admission  to--Any   preference other than the merit discriminatory--Not reasonable  classi- fication.     Rules framed by Bombay Municipal  Corporation--Admission to Post Graduate and diploma courses in Medical Colleges.     Rules  4A and 5--College-wise Institutional  preferences for  admission  to M.D.  Courses--Held  bad--Any  preference other than merit--Discriminatory and unreasonable  classifi- cation.

HEADNOTE:     There  are four Medical Colleges in the City of  Bombay, all  affiliated  to the University of Bombay. Out  of  four, three colleges are run by the Municipal Corporation and  one is  run and conducted by the State of Maharashtra.  Rule  4A framed by the Municipal Corporation and Rule 5 framed by the State Govt. vide Govt. Resolution dated June 18, 1971 govern the  admissions  of  students to  post-graduate  degree  and diploma course in the respective Medical Colleges.     Both the aforesaid Rules provide for collegeate institu- tional preference for admission in the M.D. Course. In other words, in each college, candidates who passed their M.B.B.S. exam from that college were to be preferred for purposes  of admission to the Post-Graduate M.D. degree, no matter wheth- er  the  candidates had secured less marks  than  those  who secured higher marks, having passed the M.B.B.S. Exam.  from other  colleges. On this basis some candidates who were  not able  to secure admission to the M.D. Course in the  respec- tive  colleges  from which they had  passed  their  M.B.B.S. Examination  were  not also admitted in  the  other  medical colleges  in  the City of Bombay, in view  of  college  wise institutional preferences as provided by Rule 4A and Rule  5 referred to above. Those students/candidates challenged  the validity of the afore-said Rule 4A and Rule 5 framed by  the Municipal  Corpn. and the State Govt. in the High Court,  as being  violative  of Art. 14 of the Constitution.  The  High Court allowed the Writ Petition and struck

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920 down  the impugned Rule 4A in whole and Rule 5 in so far  as it  applies to the Govt. Medical College, as  discriminatory and  violative of Art. 14 of the Constitution and  thus  in- valid. Hence these appeals by Special Leave. Dismissing the appeals with some directions, the Court,     HELD:  When  the University is the same  for  all  these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates  to the  post-graduate  degree  course of  the  same  University except  in  order of merit, will exclude merit  to  a  great extent  affecting the standard of educational  institutions. In such  circumstances, college-wise  institutional  prefer- ence cannot be supported and, this Court has not approved of such preference at all. [931F-G]     So far as educational institutions are concerned  unless there are strong reasons for exclusion of meritorious candi- dates, any preference other than in order of merit, will not stand the test of Art. 14 of the Constitution. [932C-D]     The Rules are discriminatory and do not satisfy the test of  reasonable  classification and as such, cannot  be  sus- tained.  The  Court accordingly dismissed  the  appeals  and directed  that the students who have been admitted to  post- graduate  M.D. Course pursuant to the impugned Rules,  their admission shall not be interfered with or disturbed. [933E]     The  High Court has directed to the appellants to  frame rules adopting certain alternative methods for admission  in the  Post-graduate M.D. Course for the next year.  The  said directions appear to be in the nature of suggestions by  the High  Court  and the appellants will be free  to  frame  the rules for admission in the Post-graduate M.D. Course in  the said four colleges in the City of Bombay in conformity  with the  provision  of Art. 14 of the Constitution  and  in  the light  of  the  Judgment of this Court and  in  framing  the Rules,  the appellants may take into consideration the  sug- gestions of the High Court. [934G-H; 935A]     Dr  Pradeep  Jain  v. Union of India &  Ors.,  [1984]  3 S.C.R. 942, distinguished.     Nidamarti  Mahesh Kumar v. State of Maharashtra &  Ors., [1986] 2 S.C.C. 534, not applicable. 921     Jagdish Saran & Ors. v. Union of India & Ors., [1980]  2 S.C.R. 831, not applicable.     State  of  Rajasthan & Anr. v. Dr. Ashok Kumar  Gupta  & Ors., [1989] 1 S.C.C. 93, not applicable.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2792  of 1988 Etc.     From  the  Judgment  and Order dated  27.7.1988  of  the Bombay High Court in W.P. No. 3264 of 1988.     G. Ramaswamy, Additional Solicitor General, T.R.  Andya- rujuna,  V.V. Vaze, V.M. Tarkude, D.N. Misra,  M.D.  Siodia, Pinaki Misra, P.H. Parekh, Ms. Sunita Sharma, A.M.  Khanwil- kar,  A.S.  Bhasme, Dalveer Bhandari,  Vijay  Thorat,  Raian Karanjawala,  Mrs. Manik Karanjawala, Ms.  Meenakshi  Arora, V.D. Khanna, Rameshwar Nath, B.R. Agarwal, P.K. Pillai, P.N. Gupta, Shri Narain, Madhuri Gokhale, Prangalia and N. Nettar for the appearing parties. The Judgment of the Court was delivered by     DUTT,  J. The principal point involved in these  appeals relates  to the constitutional validity of rule 4(A) of  the Rules flamed by the Bombay Municipal Corporation for  admis-

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sion  to  post-graduate degree and diploma  courses  in  its medical  colleges framed on June 18, 1988 and rule 5  framed under  the  Government Resolution dated June  18,  1971  for admission to the Government Medical College, both the  rules providing  for  collegewise  institutional  preference   for admission in the M.D. Course. By the impugned judgment,  the High  Court  allowed the writ petitions out of  which  these appeals  arise,  and struck down the impugned rule  4(A)  in whole and rule 5 (wrongly stated as rule 6 in the High Court judgment), in so far as it applies to the Government Medical College in the city of Bombay, as discriminatory and  viola- tive  of  Article 14 of the Constitution  and,  accordingly, invalid.               Rule 4(A) is as follows:--               "4. PREFERENCE:               (A)  While selecting candidates for  admission               to the postgraduate courses preference will be               given in the following order:--               922                    (a) Candidates applying for admission  at               the parent institution.               (Note:  Parent institution means  the  medical               college at which the candidate has passed  his               qualifying examination).                    (b)  Candidates who have  graduated  from               other  Municipal  Medical Colleges  in  Brihan               Mumbai."                   Relevant  portion of rule 5  framed  under               the Government Resolution dated June 18,  1971               reads as follows:               "               5. ...........................................                        ................  .                         While selecting from amongst  eligi-               ble candidates preference will be given to the               students of that college i.e. who passed their               final  M.B.B.S. Examination from that  college               in  Broad  specialities  and  their  ancillary               discipline."     There  are four medical colleges in the city of  Bombay, and  affiliated to the University of Bombay. Of  these  four medical colleges, three are run and conducted by the  Bombay Municipal  Corporation,  namely,  Lokmanya  Tilak   Memorial Medical  College (LTMMC), Seth G.S. Medical  College  (GSMC) and  Topiwalla  National Medical College  (TNMC).  The  only college  that is being run by the Maharashtra Government  in the city of Bombay is Grant Medical College (GMC). It is not necessary  to  state  in details the facts  leading  to  the filing  of the writ petitions before the High Court  out  of which  these  appeals  arise. Suffice it to  say  that  some candidates  who were not admitted in the M.D. Course in  the respective  colleges from which they had passed  their  MBBS Examination,  were  not also admitted in the  other  medical colleges  in  the  city of Bombay, in  view  of  collegewise institutional preference as provided by rule 4(A) in respect of  three Municipal Colleges and by rule 5 relating to  GMC, the  Maharashtra  Government  College. The  High  Court,  as stated already, struck down rule 4(A) and rule 5 in part and allowed  the writ petitions. Hence these appeals by  special leave.     It is Urged by Mr. G. Ramaswamy, the learned  Additional Solicitor  General, that this Court in Dr. Pradeep  Jain  v. Union of India & Ors., [1984] 3 SCR 942 has given sufficient indication of its approval 923

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of  collegewise institutional preference. While the  learned Additional Solicitor General frankly concedes that he is not in a position to support cent percent institutional  prefer- ence  or  reservation  of seats for admission  in  the  M.D. Course in the Municipal Colleges and the Government  College in  the  city of Bombay, such preference or  reservation  in respect of certain percentage of seats is quite  permissible and  will not be hit by the provision of Article 14  of  the Constitution.     In  Pradeep  Jain’s  case, the question  that  has  been considered  by  this Court as noted by Bhagwati, J.  (as  he then  was) is whether, consistently with the  constitutional values, admissions to a medical college or any other  insti- tution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as  to give them precedence over those who do not possess  domicile or residential qualification within the State,  irrespective of merit. The question that has been formulated and  consid- ered  does  not show, on the face of  it,  that  collegewise institutional preference was also involved as a part of  the question.  It  has been ruled in Pradeep  Jain’s  case  that effort must always be to select the best and most  meritori- ous  students  for admission to technical  institutions  and medical  colleges  by  providing equal  opportunity  to  all citizens  in the country, and that it would be  against  na- tional interest to admit in medical colleges or other insti- tutions giving instruction in specialities, less meritorious students  when more meritorious students are available.  So, wholesale  reservation on the basis of domicile or  residen- tial requirement within the State or on the basis of  insti- tutional preference for students who have passed the  quali- fying  examination held by the University or the  State  ex- cluding  all students not satisfying this  requirement,  re- gardless  of merit, has been condemned. The Court  took  the view that reservation of seats based on residential require- ment within the State or on institutional preference should, in  no event, exceed the outer limit of 70 per cent  of  the total  number of open seats after taking into account  other kinds of reservation validly made, the 70 per cent  reserva- tions  needs  to be reduced if the  Indian  Medical  Council determines a shorter outer limit.     The  institutional preference that has been referred  to in the observation of Bhagwati, J. does not at all relate to collegewise  institutional  preference, with  which  we  are concerned.  The  learned Additional Solicitor  General  has, however, placed strong reliance on the following observation made  by  Bhagwati, J. in Pradeep Jain’s case which  is  ex- tracted below:-- 924               "We  are therefore of the view that so far  as               admissions  to post-graduate courses, such  as               M.S.,  M.D.  and the like  are  concerned,  it               would  be eminently desirable not  to  provide               for  any  reservation based on  residence  re-               quirement 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

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             the present circumstances, be reserved on  the               basis of institutional preference in the sense               that a student who has passed M.B.B .S. course               from  a medical college or university  may  be               given  preference for admission to  the  post-               graduate  course in the same medical  colleges               or  university  but such  reservation  on  the               basis  of institutional preference should  not               in  any event exceed 50 per cent of the  total               number  of open seats available for  admission               to the post-graduate course. 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               M.B.B.S. course. But, even in regard to admis-               sions  to the post-graduate course,  we  would               direct that so far as super specialities  such               as neuro-surgery 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 all India basis."     It is urged by the learned Additional Solicitor  General that in Pradeep Jain’s case collegewise institutional  pref- erence  has been recognised and upheld, as is apparent  from ,the above observation, particularly from the observation "a certain  percentage  of seats may, in  the  present  circum- stances,  be reserved on the basis of institutional  prefer- ence in the sense that a student who has passed MBBS  Course from a medical college or University may be given preference for admission to the post-graduate course in the same  medi- cal  colleges  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  avail- able for admission to the post-graduate course." It is  true the  expression "institutional preference" has been used  in the  said observation in respect of a medical college  or  a university, but we do not think that in making that observa- tion Bhagwati, J. had in his mind 925 collegewise  institutional preference. Any observation in  a judgment  has  to be read and understood in the  context  of facts  of  that  particular case in respect  of  which  such observation  has  been made. As has been  pointed  out,  the question  that  has been considered in Pradeep  Jain’s  case relates  to reservation of seats in medical colleges on  the ground  of domicile or residential qualification within  the State irrespective of merit. It was not the case of  anybody that  reservation of seats. should be made on the ground  of collegewise  institutional  preference.  The   institutional preference  that was considered in the case was  university- wise  institutional preference and not collegewise  institu- tional preference. It is also apparent from the judgment  of Amarendra Nath Sen, J., who delivered a separate but concur- ring  judgment, that the Court had no occasion  to  consider the  question  of collegewise  institutional  preference  in matters  of admission to M.D. Course. In the  circumstances, we are unable to accept the contention of the learned  Addi- tional Solicitor General that this Court in Pradeep’s Jain’s case  has  upheld or  recognised  collegewise  institutional preference  of  seats in medical colleges for  admission  in M.D. Course.     The  position is clarified in a subsequent  decision  of this Court in Nidamarti Mahesh Kumar v. State of Maharashtra

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and others, [1986] 2 SCC 534 which related to the  constitu- tional validity of regionwise reservation of seats in  medi- cal  colleges. It has been observed by Bhagwati,  C.J.  that where the region from which the students of a university are largely  drawn is backward either from the point of view  of opportunities  for  medical  education  or  availability  of competent and adequate medical services, it will be  consti- tutionally permissible, without violating the mandate of the equality clause to provide a high percentage of  reservation or  preference for students coming from that region  because without  reservation or preference students from such  back- ward  region will hardly be able to compete with those  from advanced regions, since they would not have adequate  oppor- tunity for development so as to be in a position to  compete with others. Further, it has been observed that it would not be unconstitutional for the State to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour  of those  who have studied in schools or colleges  within  that region  and even if the percentage stipulated by  the  State Government is on the higher side, it would not fall foul  of the constitutional mandate of equality.     In respect of such reservation of preference the reasons that  have been given are that it would  cause  considerable hardship and incon- 926 venience if students residing in the region of a  particular university  are compelled to move to the region  of  another university for medical education which they might have to do if  selection for admission to the medical colleges  in  the entire State were to be based on merit without any  reserva- tion  or preference regionwise. There may be a large  number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college  in another region on the basis of  relative  merit, may  not  be  able to go to such other  medical  college  on account  of  lack  of resources and facilities  and  in  the result, they would be effectively deprived of real  opportu- nity  for pursuing the medical course even though  on  paper they  would have got admission in the medical college.  Fur- ther,  it  has been pointed out that some  difficulty  would arise  in case of girls because if they are not able to  get admission  in the medical college near the place where  they reside they might find it difficult to pursue medical educa- tion  in a medical college situated in another region  where hostel  facilities may not be available and even  if  hostel facilities  are available, the parents may hesitate to  send them to the hotels.     Even  with regard to regionwise reservation  of  certain percentage  of  seats in medical colleges,  except  for  the reasons mentioned above, this Court in Nidamarti’s case  has turned  down  the contention that the provision of  the  im- pugned  rule,  that is, students from a  school  or  college situate  within the jurisdiction of a particular  university would  not be eligible for admission to medical  college  or colleges situate in the jurisdiction of another  university, but  would be confined only to medical college or  ,colleges within the jurisdiction of the same university, was intended to  give protection to students in certain rural areaS,  the population of which is socially, economically and education- ally  backward, for otherwise they would have not been  able to  compete with students from advanced regions and,  conse- quently,  the classification made by the provision was  con- stitutionally  permissible. Thus, except in certain  circum- stances,  even  regionwise reservation of seats  in  medical

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colleges  has  not been approved by this Court.  In  Pradeep Jain’s  case, merely because the  expression  "institutional preference" has been used with reference to a student  pass- ing the MBBS Course from a medical college or a  university, it  does  not necessarily follow that the Court had  in  its contemplation  or was laying down collegewise  institutional preference.      In support of the contention that collegewise  institu- tional preference or reservation of seats was in the contem- plation of this Court, reliance has been placed on behalf of the appellants on an earlier 927 decision  of this court in Jagdish Saran & Ors. v. Union  of India  & Ors., [1980] 2 SCR 831. In that case, of the  three learned Judges, Krishna Iyer, J. delivered the judgment  for himself  and for Chinnappa Reddy, J. Pathak, J. (as he  then was)  agreed with the judgment of Krishna Iyer, J. that  the writ  petition  should  be dismissed, but he  gave  his  own reasons.  The  reasons of Pathak, J. are, inter  alia,  con- tained in the following observations:               "It  is not beyond reason that a  student  who               enters  a  medical college  for  his  graduate               studies  and  pursues them for  the  requisite               period of years should prefer on graduation to               continue  in  the  same  institution  for  his               post-graduate  studies.  There is  the  strong               argument  of  convenience,  of  stability  and               familiarity  with an  educational  environment               which  in  different parts of the  country  is               subject to varying economic and  psychological               pressures.  But much more than convenience  is               involved.  There are all the advantages  of  a               continuing frame of educational experience  in               the  same educational institution. It must  be               remembered that it is not an entirely  differ-               ent  course of studies which is  contemplated;               it  is a specialised and deeper experience  in               what  has gone before. The student has  become               familiar  with  the  teaching  techniques  and               standards of scholarship, and has adjusted his               responses   and  reactions  accordingly.   The               continuity of studies ensures a higher  degree               of competence in the assimilation of knowledge               and  experience. Not infrequently some of  the               same  staff  of  Professors  and  Readers  may               lecture  to  the post-graduate  classes  also.               Over the under-graduate years the teacher  has               come to understand the particular needs of the               student, where he excels and where he needs an               especial  encouragement  in  the  removal   of               deficiencies.  In my judgment, there  is  good               reason in an educational institution extending               a certain degree of preference to its graduate               for  admission to its  post-graduate  classes.               The preference is based on a reasonable  clas-               sification  and bears a just  relationship  to               the  object of the education provided  in  the               post-graduate classes. The concept of equality               codified  in our constitutional system is  not               violated.  It  has been  said  sometimes  that               classification  contradicts  equality.  To  my               mind, classification is a feature of the  very               core  of  equality. It is a vital  concept  in               ensuring equality, for those who are similarly               situated  alone  from a  class  between  them-

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             selves, and the classification is not               928               vulnerable  to  challenge if  its  constituent               basis  is reasonably related to achieving  the               object of the concerned law. An  institutional               preference  of the kind considered  here  does               not  offend  the constitutional  guarantee  of               equality."     The above observations or reasons should not be read  or understood  dehors the facts and the questions involved  for the determination of this Court. The facts of that case will be stated presently. The University of Delhi has many  post- graduate  and  diploma courses in the  faculty  of  medicine providing  in all 250 seats. The three medical  colleges  in Delhi  turn  out  annually 400  medical  graduates  who  get house-jobs in the local hospitals and qualify themselves for postgraduate course. As the graduates from the Delhi Univer- sity could not be accommodated fully or even in part for the post-graduate course in Medicine and as these graduates were not considered for admission into other universities,  Delhi University  had  earmarked some seats at  the  post-graduate level in Medicine for the medical graduates of Delhi Univer- sity. By the impugened rule, 70 per cent of the seats at the post-graduate level was reserved for Delhi graduates and  30 per cent of the seats was kept open to all including  gradu- ates of Delhi. It was, therefore, not a case of  collegewise reservation,  but  70 per cent reservation of seats  in  the medical colleges under the Delhi University for the  medical graduates  of that University. The question  of  collegewise institutional preference or reservation of seats did not  at all  arise,  nor was it argued or sought to  be  decided  in Jagdish  Saran’s  case. It is true that the  observation  of Pathak,  J., without reference to the context of  the  facts and the question involved in that case, may support to  some extent the contention of the appellants, but the  contention has  to  be  rejected on a reference to the  facts  and  the question involved in that case.     It  is,  however, submitted by  the  learned  Additional Solicitor  General  that there are some  special  facts  and circumstances  which  justify  collegewise  reservation   as provided  by the impugned rules 4(A) and 5. It is stated  by him  that while the theoretical examinations in MBBS  Course are conducted by the University, the practical  examinations involving  50  per cent of the total marks are held  by  the individual  colleges. Counsel submits that in  such  circum- stances the merits of the candidates passing the MBBS Exami- nation from these four colleges are difficult to be compared and  evaluated  for  the purpose of admission  in  the  M.D. Course.  This  submission has also been made  by  Mr.  Baze, learned  Counsel  appearing on behalf of the  University  of Bombay. 929     We regret, we are unable to accept such a contention. It is not disputed that in each college the practical  examina- tions are conducted by a set of four examiners consisting of one  internal examiner from the same college,  one  external examiner from one of the other three colleges and two exter- nal  examiners  from  outside Bombay.  Thus,  excepting  one internal examiner, three other examiners are external  exam- iners  and all those examiners are presumably  appointed  by the University. These examiners are of high academic  quali- fications  and we fail to understand why they would  deviate from  the  standard  prescribed by the  University  for  the assessment  and evaluation of the merits of the students  in the  practical  examinations. There is, therefore,  no  sub-

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stance  in the contention that the standard  of  examination and  evaluation of the merits of students in such  practical examinations  differ  from college to  college.  Indeed,  no material has been placed before us in support of the conten- tion that different standards are adopted by the colleges in MBBS  practical examinations. Equally untenable is the  con- tention  that because of institutional preference, the  dif- ferent  marks given by different colleges do not affect  the students, as it is the relative merit of the student in  the same college which matters in the selection of post-graduate students. We do not find any justification for the apprehen- sion that if the institutional preference is removed and all the  candidates from the University are pooled  together,  a process  of  dilution and undesirable racing are  likely  to start making a mockery of the examination system and  creat- ing  mad race of overtaking the other colleges. This  appre- hension  has  been expressed by the Dean of  Lokmanya  Tilak Memorial Medical College in his. affidavit filed before  the High Court.     Another ground in justification of collegewise  institu- tional  preference which has been relied on by the  Dean  in his  affidavit and urged before us on behalf of  the  appel- lants is that the facilities differ from college to  college in respect of the pattern of patients coming to the hospital attached  to  each college. By way of  illustration,  it  is stated  that  in  the hospital attached  to  Lokmanya  Tilak Memorial  Medical  College there is maximum load  of  trauma cases (accidents and injuries), the number of such cases  is much higher than that in the hospital attached to the  three other  colleges.  The under-graduate  students  in  Lokmanya Tilak Memorial Medical College will have a wider exposure to these  cases and will be far more suitable for seat  in  the post-graduate course in Surgery where he will have to  actu- ally  deal  with  these cases than a student  of  any  other college.  Even  assuming  that the facts  stated  above  are correct, we do not think that the same constitute any ground in support of institutional preference. It is the university which is required to maintain a standard in respect of the 930 subjects  in  the colleges affiliated to it. It is  not  the case of the University that the standard prescribed by it is not maintained in different colleges or that any  particular college  is higher in standard in a particular subject  than that in another college. It may be that the number of  acce- dent  and injury cases in the hospital attached to  Lokmanya Tilak Memorial Medical College is higher than the number  of such cases in the hospitals attached to other colleges,  but that  does  not  prove or lead to the  conclusion  that  the students  of other colleges will be deficient in surgery  or less meritorious than the students of Lokmanya Tilak Memori- al Medical College. The contention in this regard is without substance and is rejected.     Let us now examine the question of collegewise  institu- tional  preference from the point of view of Article  14  of the  Constitution. By the impugned rules,  a  classification has been sought to be made with the students of each partic- ular  college passing their MBBS Examination from that  col- lege to the exclusion of all other students obtaining  their MBBS Degree from the other colleges. In order that a classi- fication is a permissible one within the meaning of  Article 14  of  the  Constitution, two tests are  to  be  satisfied, namely, (1) that there is an intelligible differentia  which distinguishes  persons grouped together from those  who  are left  out  of the group; and (2) that there  is  a  rational nexus  to the object sought to be achieved by  the  impugned

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rules.  The  object sought to be achieved  by  the  impugned rules  is  obviously to prefer merit for  the  post-graduate course  and to exclude less meritorious candidates. It  will be presently demonstrated that both the tests are not satis- fied in the instant case. In this connection, we give  below following  tabular  statement showing the  number  of  seats available  in each of the said four colleges in some of  the disciplines. COLLEGE               LTMMC TNMC  GSMC  GMS Students Intake            100      100     100 DISCIPLINE 1. M.D. Obs. & Gyn.        2        1       5       3+ I(R) 2. M.S. Orthopaedics        2        1       2       1 3. M.S. General Surgery     4        2      3      3+ I(R) 4. M.D. General Medicine    4        3      3      3+ I(R) 931     In  Seth  G.S. Medical College (GSMC),  there  are  five seats in Obstetrics and Gynaecology and one seat in Topiwala Nationl  Medical  College (TNMC). In view  of  the  impugned rules  providing collegewise institutional preference,  five seats  in  Obstetrics and Gynaecology in Seth  G.S.  Medical College were allotted to five of its students. Of these five students,  Dr. Ganpat Sawant secured 150 marks and the  four other  candidates secured marks between 118 and 128  in  the MBBS Examination. The respondents Dr. Anjali Deokumar  Thuk- ral  and Dr. Sumeet Godambe, both students of  Topiwala  Na- tional  Medical  College obtained respectively 140  and  143 marks  in  the  MBBS examination. They,  however,  were  not admitted  in their college, for there was only one  seat  in Obstetrics  and Gynaecology and that seat was alotted  to  a student  of that college who secured 156 marks in  the  MBBS examination. Thus, although Dr. Anjali Deokumar Thukral  and Dr.  Sumeet  Godambe secured more marks  than  the  students admitted  in  the  post-graduate course  in  Obstetrics  and Gynaecolocy  in  the said G.S. Medical College,  except  the said Dr. Ganpat Sawant, they were refused admission in  view of  collegewise  institutional  preference.  Similarly,   in respect of other disciplines many meritorious students could not get admission even though they secured higher marks than those admitted in the post-graduate degree course by  virtue of  the impugned rules. Thus, there is a patent  discrimina- tion  inasmuch as students obtaining lesser marks have  been preferred  to  those  obtaining higher marks.  There  is  no intelligible  differentia for the classification by  way  of collegewise  institutional  preference as  provided  by  the impugned  rules distinguishing the preferred  candidates  in respect of each college from those excluded from such  clas- sification.  By such classification or collegewise  institu- tional  preference, merit has been sacrificed, far  less  it has been preferred. When the university is the same for  all these  colleges, the syllabus, the standard  of  examination and  even  the  examiners are the same,  any  preference  to candidates  to the post-graduate degree course of  the  same university, except in order of merit, will exclude merit  to a great extent affecting the standard of educational  insti- tutions.  In such circumstances,  collegewise  institutional preference  cannot  be supported and, it  has  already  been noticed that this Court has not approved of such  preference at all.     State of Rajasthan and another v. Dr. Ashok Kumar  Gupta and  others,  [1989]  1 SCC 93 is a  case  of  college-based institutional preference in respect of five medical colleges in  Rajasthan under the same University. The impugned  Ordi- nance of the University provided for addition of 5 per  cent of the aggregate of marks which work out to be

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932 to  137.5  marks by way of institutional preference  in  the sense  of  preference dependant on  the  particular  medical college  at  which the concerned candidate  has  passed  his final  MBBS  Examination.  This  collegewise   institutional preference  has been disapproved by this Court in that  case and the impugned Ordinance has been struck down. The learned Additional Solicitor General sought to distinguish Dr. Ashok Kumar  Gupta’s case from the instant case. We do  not  think that  the  said case is distinguishable from the  case  with which  we are concerned, inasmuch as in both the  cases  the question  of  collegewise  or  college-based   institutional preference  is  involved. It is stated that mode  or  method adopted  for giving collegewise institutional preference  in Dr.  Ashok Kumar Gupta’s case is different from the  instant case but, in our opinion, nothing turns out of that. So  far as educational institutions are concerned, unless there  are strong reasons for exclusion of meritorious candidates,  any preference other than in order of merit, will not stand  the test  of  Article 14 of the Constitution. So,  the  impugned rules  are  discriminatory and do not satisfy the  tests  of reasonable classification and, as much, cannot be sustained.     It is next contended on behalf of the appellants that as the Bombay Municipal Corporation has to spend a lot of money for the running of the three colleges sponsored by it, seats for  the  postgraduate course should be  reserved  in  these three colleges for the students passing the MBBS Examination from any of these colleges. If such reservation is  allowed, the students of the Maharashtra Government College,  namely, the Grant Medical College, will not get any admission in any of  the  three Municipal Colleges, even if the  students  or some  of  them passing the MBBS Course from  the  Government College are more meritorious than the students for whom  the seats will be kept reserved in the Municipal Colleges. It is urged that it will not be a case of collegewise institution- al preference so far as the Municipal Colleges are concerned and  there should be no objection for the  Bombay  Municipal Corporation to give preference to the students of the Munic- ipal  Colleges, of course, to the exclusion of the  students of the Government College. This contention, in our  opinion, is without any substance. It may be that the Bombay  Munici- pal Corporation has to spend a lot of money for the colleges run by it, but that will be no ground for making a discrimi- nation  between the students of the Municipal  Colleges  and those  of  the  Government College affiliated  to  the  same university, for the purpose of admission in the  post-gradu- ate  degree course. Such discrimination will not  serve  any object  which can be justified on any rational  basis.  Such reservation  or  preference also cannot be allowed,  for  if allowed, rule 5 of the Rules framed under the 933 Government  Resolution  dated June 18, 197  1  will  survive inasmuch  as the students of the Grant Medical College  will only be admitted in the M.D. Course. But, those students who could not be admitted in that College, will not be  eligible for  admission in the Municipal Colleges. We are  unable  to permit such discrimination in the matter of admission in the M.D. Course. Another ground on which collegewise institutional preference has  been sought to be justified by the  learned  Additional Solicitor General is on the basis of institutional continui- ty.  In support of this ground of institutional  continuity, the  learned  Additional Solicitor General has  placed  much reliance  on the observations of Pathak, J. in  Jagdish  Sa- ran’s  case, which has already been extracted above. It  was

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not a case of collegewise institutional preference or insti- tutional continuity, and the said observations should not be understood in that sense, but in the sense of  institutional continuity in the same university.        After  giving  our thoughtful  consideration  to  the question of collegewise institutional preference, we are  of the view that such preference or reservation of seats is not permissible and the High Court has rightly struck down  both the impugned rule 4(A) flamed by the Bombay Municipal Corpo- ration and part of rule 5 flamed under the Government  Reso- lution,  that is to say, only in respect of its  application to the Grant Medical College in the city of Bombay  relating to admission to post-graduate M.D. Course. We, however, make it  clear that the students who have been admitted to  post- graduate  M.D. Course pursuant to the impugned rules,  their admission shall not be interfered with or disturbed.        At this state, we may consider the submission of  Mr. Lalit, learned Counsel appearing on behalf of the applicants in C.M.P. No. 20748 of 1988 praying for their impleadment as party-respondents  to Civil Appeal No. 2792 of 1988.  We  do not think that any useful purpose will be served by implead- ing them as party-respondents to the appeal. The only prayer that  has been made by Mr. Lalit is that the applicants  who have passed the diploma course  from the Municipal  Colleges should  be  held to be eligible for admission  in  the  M.D. Course  with  credit for the diploma course in  any  of  the Municipal  Colleges.  We  are told by  the  learned  Counsel appearing for the State Government and the Bombay  Municipal Corporation that if the impugned rules are struck down, they will have to frame fresh rules consistent with the  judgment of this Court and, as we have directed not 934 to disturb admission of the candidates in the  post-graduate M.D. Course pursuant to the impugned rules, we consider  the prayer  made  by  the applicants as  quite  reasonable  and, accordingly, direct that the applicants who have passed  the diploma  course in the Municipal Colleges after passing  the MBBS  Examination,  will be eligible for  admission  in  the post-graduate  M.D. Course in any one of the Municipal  Col- leges with credit for the diploma course.     Mr. Tarkunde, learned Counsel appearing on behalf of the respondents-writ  petitioners,  submits that  the  cases  of admission  of  some of the respondents, who  have  not  been admitted  to the postgraduate degree course in certain  spe- cialities of their choice in view of the impugned rules, may be considered by the State of Maharashtra and the  Municipal Corporation of Greater Bombay, in case seats are  available, either  in  the Municipal Colleges or in the  Grant  Medical College, which is a Government College. In our opinion,  the prayer is quite reasonable and the State of Maharashtra  and the  Bombay Municipal Corporation are directed  to  consider the  question of their admission, provided seats are  avail- able.  The names of the said respondents and the  respective disciplines of their choice are given below: 1.  Dr. Anjali Deokumar Thukral       M.D. Gynaecology                                       and Obstetrics 2. Dr. Atul Jaywant Galtonde            M.S. Orthopaedics 3. Dr. Naresh Kanayalal Navani          M.S. General Surgery 4. Dr. Anna Koshy Joseph               M.D. General Medicine 5. Dr. Vaishali Ramnik Doshi           M.D. General Medicine     Before  we part with these cases, we may dispose of  one submission  made on behalf of the appellants. Our  attention has  been  drawn to the fact that while  striking  down  the impugned  rule  4(A) and impugned rule 5 in part,  the  High Court  has directed the appellants to frame  rules  adopting

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certain  alternative  methods for dismission  in  the  post- graduate  M.D.  Course for the next year, as stated  in  the judgment. The said directions appear to be in the nature  of suggestions  by the High Court, and the appellants  will  be free to frame rules for admission in the post-graduate  M.D. Course  in the said four colleges in the city of  Bombay  in conformity with the provision of Article 14 of the  Constitution and in the light of the judgment  of  this Court and in 935 framing  the rules, the appellants may take into  considera- tion the suggestions of the High Court.     In  the result, Subject to the directions  given  above, the appeals are dismissed. There will, however, be no  order as to costs.    SPECIAL LEAVE PETITION (CML) NO. 8883 OF 1988        WRIT PETITION (CIVIL) NO. 1253 OF 1988     For  the reasons aforesaid, Special Leave  Petition  and Writ Petition fail and are dismissed without any order as to costs. Y.L.                                                     Ap- peals dismissed. 936