VAIDHEHI SUBHASH NATU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Anturkar for the petitioner and Mrs. Gokhale, A. G. P. for the respondent -State. By this writ petition under Article 226 of the Constitution the petitioner has challenged Rule 3 (b) of the Rules for selection to M. B. B. S. and B. D. S. Course for 1997-98. The said Rule provides as follows:

(2.) THE petitioner has passed her H. S. C. examination from Ruparel College in Bombay, Maharashtra. The petitioner obtained 92. 35 per cent marks in Physics, Chemistry and Biology Group. The petitioners father was working in Baharain in Arabian Gulf where the petitioner was staying with him and, therefore, the petitioner has done her S. S. C. equivalent examination viz. C. B. S. E. viz. Central Board of Secondary Education from Indian School in I. S. A. Town, Bahrain, she passed her S. S. C. equivalent examination in the year 1995 securing 92. 8 per cent marks. According to the petitioner ultimately with the aforesaid percentage of marks she was qualified to get admission for the medical course in the State of Maharashtra. However, as per the aforesaid Rule No. 3 (b) which is framed by the Government of Maharashtra for the eligibility of applicants for admission in the Medical course, she cannot even apply for the said course although she was educationally qualified and had secured high percentage of marks which would enable her to obtain admission for the said course in the State of Maharashtra. The petitioner has, therefore, challenged the above rule on two grounds viz. that it is the Medical Council of India which is empowered to frame Rules in that behalf and the Rules framed by the Medical Council of India prescribe only qualification that the candidate must have passed H. S. C. Examination. The second challenge is on the ground that the impugned Rule makes discrimination between the children whose parents are employed in the private service and the children whose parents are employed with the Central Government or the State Government.

(3.) SO far as the first contention is concerned that the Government cannot make Rules for the purpose of admission to the Medical course has no substance. The Medical Council of India has prescribed the rule that in order to get admission to the Medical course the candidate must have passed H. S. C. examination. That rule is not departed from by the Government. All that the Government has laid down is that the applicant must have passed apart from the H. S. C. examination, the S. S. C. examination also from any school in the State of Maharashtra. The said power of the Government to lay down, what is known as institutional preference, is permissible so long as there is no total reservation on the basis of residential or institutional preference. As far back as in the year 1955 in the case of (D. P. Joshi v. State of Madhya Pradesh) reported in A. I. R. 1955 S. C. 334 the Apex Court had held that the preference in admissions on the basis of residence as well as the institutional preference is permissible so long as there is no total reservation on the basis of residential or institutional preference. The said principle was reiterated by the Supreme Court in the case of (Jagadish Saran (Dr.) v. Union of India) reported in 1980 (2) S. C. C. 768. Subsequently, in the case of (Pradeep Jain (Dr.) v. Union of India) reported in 1984 (3) S. C. C. 654 the Supreme Court held that the reservation to the extent of 70 per cent on the basis of residence and institutional preference was permissible leaving 30 per cent of the seats to be made available on all India basis. Thereafter in the case of (Dinesh Kumar (Dr.) v. Motilal Nehru Medical College) reported in 1986 (3) S. C. C. 727, the Apex Court increased this percentage of reservation on the basis of residence and institutional preference to 85 per cent leaving only 15 per cent seats to be filled in on all India basis. In this case the State Government has not made any rule as regards qualification for admission to the Medical course but has only laid down the rules of preference in admissions on the basis of institution, which is as per the above citations, permitted. The first contention of Mr. Anturkar, therefore, has no merit.